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April 2019

Fair Work Commission rules employee banter constituted bullying and harassment

Fair Work Commission rules employee banter constituted bullying and harassment

Pridham and Rose v Viterra Operations Pty Ltd T/A Viterra (2019)

The Case

Ms Glover resigned her employment from Viterra Operations Pty Ltd T/A Viterra (Viterra) claiming she had been bullied and harassed by Mr Rose, who yelled and swore at her.

Viterra launched an investigation, which found Mr Rose and his supervisor, Mr Pridham, had:

  • sworn at employees;
  • approved fraudulent timesheets;
  • given favourable treatment to some employees; and
  • engaged in (and Mr Pridham had condoned) conduct that targeted Ms Glover. One example being when Mr Pridham had placed earplugs on a table in front of other employees, implying they would be needed to work with Ms Glover, who talked a lot.

Viterra terminated the employment of Mr Rose and Mr Pridham. Both commenced unfair dismissal proceedings in the Fair Work Commission (FWC).

The Verdict

The FWC found there were valid reasons for the dismissals, in that:

  • Mr Rose had knowingly allowed another employee to be overpaid;
  • Mr Rose and Mr Pridham participated in conduct that bullied and harassed Ms Glover, and in doing so, breached Viterra’s policies and their contracts of employment;
  • they failed in their supervisory responsibilities; and
  • they were not truthful during the investigation.

Commissioner Platt noted that while swearing was commonplace at the wharf and should not be condoned, it was a relevant cultural consideration when evaluating whether the language and conduct was inappropriate. Commissioner Pratt held that the comments by Mr Rose and Mr Pridham crossed the line because they were personal and at the expense of particular employees. They were not mere banter, they constituted bullying and harassment.

Commissioner Platt was critical of Viterra, finding:

  • it had taken a “very minimalist approach to workplace culture with no positive action other than rolling out the policy”; and
  • “… intervention by Viterra may have been able to “reset” the culture and the supervisory processes.”

The Lessons

As stated by Commissioner Platt, employers must do more than roll out policies about bullying and harassment. They must educate, train and police compliance with those policies. Where banter amounts to a personal attack on another employee, it has gone too far and is not appropriate.

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