‘Your feelings are your problem’ – a lesson for employers about how not to treat employees

An employee of a luxury jewellery and watch retailer who was repeatedly bullied, intimidated and victimised by her team leader, has successfully obtained a stop bullying order.

Introduction

In Qu v Monards Gold Coast Pty Ltd; Tak Wing Wong [2021] FWC 4507, an employee successfully obtained a stop bullying order despite being fairly criticised at times for being engrossed in her mobile phone while working.

This case highlights the importance of implementing effective workplace bullying policies and appropriately responding to employee complaints.

Employee repeatedly bullied by team leader

Ms Qu worked as a supervisor at Monards Gold Coast Pty Ltd, a high-end jewellery and watch store. Ms Qu reported to Mr Wong, who was a team leader at Monards.

The employees communicated using an application on their personal phones called ‘Slack’. The reliance on mobile phones to perform work-related duties resulted in Mr Wong constantly querying whether Ms Qu was using her phone for work-related or personal purposes.

Ms Qu complained that Mr Wong picked on her for using her mobile phone in circumstances where the use of mobile phones at work was encouraged for communicating with team members in other stores.

Ms Qu also made specific allegations of bullying, alleging that Mr Wong:

• suggested that Ms Qu work for a competitor instead
• started to continuously follow Ms Qu around the store when she was talking to clients on the phone, sending emails, unpacking items and in the back office
• put his hand up to signal ‘stop’ when Ms Qu attempted to discuss an issue with him
• issued Ms Qu with a warning for not tidying up a counter, but then said he would withdraw the warning and instead give Ms Qu another final warning because she was ‘pushing a particular display cabinet too hard’
• said ‘shut up, you are not allowed to say a word in front of me’ after Ms Qu took a lunch break at a time that was inconvenient for Mr Wong.

Ms Qu told a manager at Monards that she lacked support, was being treated unfairly, felt depressed, and considered leaving her job. In response to Ms Qu expressing her feelings, the Manager told Ms Qu that ‘it was her problem’. Ms Qu was also alleged that she was issued with an unwarranted performance improvement plan instead of having her concerns regarding Mr Wong addressed.

On one occasion, Ms Qu had a bad headache and became dizzy. She held onto Mr Wong’s arm as he was next to her. Mr Wong pushed Ms Qu away, laughed, and said ‘you harassed me!’ Ms Qu became upset, fainted in the store, and an ambulance was called.

Ms Qu applied to the Fair Work Commission for a stop bullying order under Part 6-4B the Fair Work Act 2009 (Cth) (FWA).

Employee’s application for a ‘stop bullying order’

Under the FWA, a worker is bullied at work when an individual or a group of individuals repeatedly behave unreasonably towards a worker, in circumstances where the behaviour creates a risk to health and safety.

A worker who reasonably believes that they have been bullied at work may apply to the Commission for an order to stop bullying. The Commission may make final orders if it finds that the worker was bullied at work, and there is a risk that the worker will continue to be bullied at work.

In response to the allegations of bullying, the Commission accepted that Ms Qu felt unwanted, harassed and unsupported. Mr Wong repeatedly behaved unreasonably towards Ms Qu and created a risk to her health and safety. The Commission was also satisfied that Ms Qu would be at risk of continuing to be bullied at work if an order was not made.

Reasonable management action carried out in a reasonable manner

The Commission did accept that there were some instances where Mr Wong had acted fairly. For example, when Mr Wong had criticised Ms Qu because she was engrossed in her mobile phone, shirked her responsibilities, and should have instead been ensuring that the store was ready for opening.

However, in the instances when Mr Wong behaved unreasonably towards Ms Qu, the Commission was satisfied that Mr Wong’s conduct was not reasonable management action carried out in a reasonable manner.

Importantly, Monards did not have a bullying policy or procedure or complaints process and it failed to take appropriate action to address Ms Qu’s concerns.

The Commission made the stop bullying order.

What should employers do?

Employers should be receptive and thorough when receiving and responding to complaints. Employers should also ensure that appropriate mechanisms are put in place to support employees who make complaints of workplace bullying.

If you need assistance with developing compliant workplace policies and procedures, please contact a member of our Workplace Relations and Safety team.