The Case

Mrs Loredana Pastor (2019)

Ms Pastor, an Assistant in Nursing (AIN) at the Aegis Carrington Aged Care facility, made an application to the Fair Work Commission (FWC) claiming she was being bullied in her employment.

Ms Pastor claimed that a work colleague, Ms Swaray, had bullied her by:

• shouting at her;
• threatening to hit her in the face;
• telling her to leave her alone;
• walking past her and elbowing her in the waist; and
• intentionally flicking water on her.

Ms Pastor also claimed that her manager, Ms Zulu, had bullied her by:

• investigating bullying complaints made against her even when the
  complaints had been withdrawn;
• failing to properly investigate the complaints she made; and
• unfairly rostering her to work in a more demanding area of the
  aged-care facility.

The Verdict

After hearing evidence from Ms Pastor, Ms Zulu and Ms Swaray, the FWC found that the bullying did not occur as alleged by Ms Pastor. The FWC preferred the evidence of Ms Zulu and Ms Swaray to Ms Pastor. Ms Zulu’s conduct when dealing with Ms Pastor’s complaints was consistent with those of other employees, and the recollection of Ms Swaray of the incidents was preferred over Ms Pastor’s. The FWC also found that it is often the case that employees do not get on in the workplace but not all conduct amounts to bullying.

In dismissing the bullying application, The FWC stated that, “it is important to distinguish between conduct evidencing a disagreement from conduct that constitutes bullying for the purposes of the FW Act … [being] conduct [that was] in the circumstances unreasonable or that … created a risk to health and safety”.

The Lessons

Differences of opinion and disagreements among employees do not automatically constitute bullying under the Fair Work Act 2009 (Cth). However, employers should take action before conduct escalates. Such action may include:

• reminding employees what constitutes appropriate conduct and the expectation for respectful treatment in the workplace;
• undertaking refresher training on the employer’s workplace bullying policy;
• policing compliance with the bullying policy;
• engaging a mediator to see if they can develop a more collegiate relationship between disgruntled employees; and
• implementing appropriate disciplinary action if an employee engages in bullying or inappropriate conduct.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.