Exasperation is not bullying behaviour, FWC holds

Exasperation is not bullying behaviour, FWC holds

Should allowances be made for “some degree of exasperation or tension” between managers and those they supervise, without it becoming bullying? The issue recently arose in an application for anti-bullying orders against a supervisor on behalf of five Wollongong-based FedEx delivery drivers. 

The Fair Work Commission heard that most in the group had been at loggerheads with the supervisor since early 2017. The drivers relied on approximately 50 incidents of alleged bullying over the past six years, many involving being screamed at.

The Commission said none of the incidents are particularly serious when viewed in isolation and, by and large, the incidents and the consequential allegations of bullying are evidence of working relationships that have been strained for a long time.

While each driver was convinced and genuinely believed that they have been bullied by the supervisor, the belief must be reasonable when viewed objectively. There must be something to support the belief or some other rational basis for the holding of the belief and cannot be irrational or absurd.

The Deputy President highlighted a list of behaviours the current FWC president drew up “which one might expect to find in a course of repeated unreasonable behaviour that constituted bullying at work”.

The list included:

  • intimidation and coercion
  • threats and humiliation
  • shouting, verbal and/or physical abuse or emotional abuse
  • sarcasm and mocking
  • victimisation
  • singling-out
  • malicious pranks and terrorising
  • belittling
  • harassment
  • ganging-up and mobbing
  • freezing-out, ostracism and isolation
  • rumour-mongering and innuendo
  • disrespect
  • victim-blaming; and
  • discrimination

The drivers said it was the tone and volume that were bullying. Short of recording conversations and meetings, tribunals find it difficult to make a finding based on tone and volume. As the test of bullying is objective, if corroborative evidence is not present, it makes it difficult to assess tone and volume.

One way to test the allegations was to look at the “substance” of the directions and instructions given by the supervisor.

“The common thread in the [drivers’] allegations is the fact that [the supervisor] was calling them to account for their actions: in most incidents he was either moving [them] on to do their job or directly asking them what they were doing.” 

“I accept that in many situations a supervisor asking a worker the seemingly neutral question ‘what are you doing’ amounts to an accusation that the worker is not doing what they are supposed to be doing, or worse, doing something they are not allowed to do. 

“But even if [the supervisor’s] questions had an accusatory purpose, in his role as their supervisor he was entitled to query or challenge the [drivers].” 

Ultimately, the Commission said, the words used were “unremarkable” for a supervisor.

The Deputy President perceptively said that the drivers were like “loaded guns” waiting and watching for the next time the supervisor was aggressive or hostile. This of course made it so. Both the supervisor and drivers were keeping written notebooks of the interactions.

The evidence was that the supervisor had engaged with the drivers “only when he had to, for as short a time as possible, and with the clear intention of avoiding or de-escalating any contentious interactions”. So, the complaints and note taking influenced the supervisor’s actual management of the employees. The supervisor was always on edge when dealing with the employees.

The allegations relied upon tone and volume, but the Commission could not find that the supervisor adopted hostile or antagonistic tones in these brief interactions. The supervisor persisted in doing his job of supervising the drivers and managing their conduct and performance.

“This has inevitably led to [the supervisor] calling the workers to account from time to time and, in light of the long history, causing discomfort and offence to them. 

The Deputy President said that if on some occasions the supervisor’s tone revealed his exasperation (it was said he was blunt in his communications), his attempts to supervise the drivers could still be reasonable management action undertaken in a reasonable way. In other words, it was appropriate to make allowances for some degree of exasperation or tension between managers and those whom they manage.

“In the same way that employers must apply the standards of men and not angels to their employees (Jupiter General Insurance Co Ltd v Shroff [1937] 3 All ER 67 at 73-4), managers and supervisors are also entitled to some latitude when the Commission assesses whether their management action was done in a reasonable way. 

After considering whether the supervisor’s alleged bullying created a risk to health and safety, the deputy president said the qualification in the definition of bullying was an important one and found that over five years there were three sick leave instances which accumulated five total days of leave being taken.

The drivers argued they were ‘distressed’, or ‘humiliated’ or ’embarrassed’ when addressed by [the supervisor] in the course of their work but the small amount of time off spoke against there being a risk to health and safety arising from the behaviour.

Lessons for employers

Employers can still manage their business while staying on the right side of the bullying line. Behaviour by managers and supervisors in dealing with staff can express some degree of frustration, tension or annoyance, but always try and manage staff with respect and courtesy.

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