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October 2019

Fair Work Commission denies an employee’s attempts to subvert performance management

Fair Work Commission denies an employee’s attempts to subvert performance management

The Case

Richardson v Optus Retailco Pty Limited, Jack Cassidy and Steven Savvidis (2019)

Optus Retailco Pty Limited (Optus) employed Mr Richardson as an assistant manager. Mr Richardson alleged he was bullied by his area manager (Mr Cassidy) and store manager (Mr Savvidis). He alleged the bullying conduct included his suspension from work and the commencement of a concocted performance management process.

In April 2019, Mr Richardson applied to the Fair Work Commission (FWC) for stop bullying orders.

It was agreed that Optus would investigate Mr Richardson’s complaints. The investigation concluded that Mr Richardson’s complaints were not substantiated.

Optus thereafter proceeded with the performance management process, inviting Mr Richardson to respond to the allegations of alleged misconduct.

Mr Richardson applied to the FWC for interim orders to:

  • stop the performance management process;
  • prevent Optus from terminating his employment; and
  • allow him to return to work.

The Verdict

The FWC decided not to make the orders sought by Mr Richardson given:

  • there was an investigation conducted into his misconduct;
  • as he was suspended from work, there was no possibility of further alleged bullying by the store or area managers;
  • if Mr Richardson’s employment was terminated, he would no longer be at work; and
  • if Mr Richardson’s employment was not terminated, Optus had agreed to transfer him to another retail store, so he would no longer have contact with the store or area managers.

The Lessons

The FWC indicated that, “An anti-bullying application is not a shield from disciplinary consequences in the event of any lawful findings of serious misconduct on the part of the applicant.”

The decision provides assurance that employers are able to implement legitimate performance management processes and that the FWC is cognisant of employees’ tactics to try to prevent or subvert disciplinary processes and outcomes.

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