In an unusual case, an employee’s claim of bullying and adverse action under the Fair Work Act has seen the Federal Circuit and Family Court find that the employer in question breached the health and safety clause of its own Enterprise Agreement (EA).
The employee, a specialist financial analyst and performance management administrator, claimed that the South-Eastern Melbourne Primary Health Network Ltd (SEMPHN) had taken adverse action against him by making him redundant after he made a complaint about workplace bullying.
A new CEO at SEMPHN was seeking to reorganise the reporting lines in the workplace and create a new "business intelligence directorate" that would take over many of the functions previously performed by the employee. SEMPHN senior management were aware that the reorganisation would effectively make the employee’s role redundant but failed to consult him about the change as required by their EA.
As the changes were implemented management made the decision to withhold data that the employee required to fulfill his role. As a result, the employee repeatedly emailed the CEO complaining that the denial of access to the data he required to do his job made him feel ostracised and that they were freezing him out. He argued that this behaviour constituted bullying.
The employee was informed shortly afterwards of his upcoming redundancy at a meeting for which he was only given two hours’ notice, and he did not have a support person to accompany him. The employee claimed that making him redundant after his bullying complaint was unlawful adverse action. He also claimed that SEMPHN was in breach of clauses in its Enterprise Agreement that required it to take "all reasonably practicable steps to provide a working environment that is safe and without risks to health".
Although the judge accepted that the complaint about bullying constituted a proscribed reason under the FW Act, they found that the primary reason for the redundancy was the organisational restructure, and not the bullying complaint.
However, the judge ruled that the claim of a breach of the health and safety provisions of SEMPHN’s EA should be upheld, as the withholding of information and the way that the employee’s redundancy was communicated to him was “plainly injurious to him”. The judge noted that the lack of communication, consultation and transparency around the decision making was unreasonable and that it was foreseeable that it would have a detrimental impact on the welfare of the employee.
The judge also noted that the meeting at which the employee was informed of the redundancy had “the quality of an ambush because it was held on two hours' notice and in circumstances where the prospect of a redundancy had not been raised" before.
SEMPHN’s breaches of its own EA clause requiring them to maintain a safe workplace has led to an order for compensation of $30,000, and a further $5,000 for their failure to consult with the employee about the restructuring and his possible redundancy.
