The Case

James Willis v Marie Gibson; Capital Radiology Pty Ltd; Peita Carroll (2015)

James Willis, a radiographer on probation with Capital Radiology Pty Ltd (Capital), sought that the FWC impose an anti-bullying order against Capital and two managers who had allegedly berated and bullied Mr Willis in response to complaints they had received about him.

Capital alleged that the actions constituted “reasonable management action carried out in a reasonable manner”, and therefore did not constitute bullying.

In response to the anti-bullying proceedings, Capital also:

• withdrew the disciplinary action it had instigated against Mr Willis;
• ensured that the two managers who had engaged in the alleged bullying conduct no longer had any direct interaction with Mr Willis;
• involved the highest level of management in the case; and
• engaged in a procedurally fair and reasonable performance management process.

The FWC also found that Capital did not respond inappropriately to a highly inflammatory email it had received from Mr Willis.

The Verdict

Although the FWC held that the manager’s behaviour constituted bullying under section 789FD of the Fair Work Act 2009 (Cth) (FW Act), it declined to make an anti-bullying order.

This was due to its finding that the changes Capital had implemented meant it was unlikely the conduct would be repeated. For an anti-bullying order to be made, there must be an ongoing risk to the employee.

The FWC indicated that Capital should have implemented a procedurally fair disciplinary procedure in response to the complaints, rather than berating Mr Willis, prior to commencing its disciplinary process.

The Lesson

This case is a reminder that as an employer you must:

• have a workplace anti-bullying policy in place, and ensure that all employees have knowledge of and are trained in the policy;
• act swiftly to deal with any alleged bullying in your workplace; and
• refrain from berating employees, and instead implement a procedurally fair disciplinary or performance management process, if required.

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.