By
Gaby Grammeno
Contributor
A worker employed by Apple Pty Ltd as a technical support advisor. His role involved him working entirely from home, and his responsibilities were to provide technical consultancy and customer service in a professional, competent and productive manner.
In October 2022 he complained about his then managers, which resulted in a temporary assignment of limited management responsibilities to a different supervisor. The following month, the supervisor received a complaint about the advisor from another staff member, which prompted him to begin proactive monitoring of the advisor’s conduct. The advisor was then assigned to a different team manager.
By April 2023, the advisor was subject to an investigation into his conduct. In May he attended a meeting about his conduct and offered an opportunity to respond in writing, which he did. In July, he received a Show Cause letter asking him to provide reasons why disciplinary action should not be taken.
He responded to the Show Cause letter, then applied to the Fair Work Commission for a ‘stop bullying’ order, initially naming four colleagues. He believed he was being unfairly targeted by managers in regard to his ‘Customer Facing Time’ and job performance.
In October he was given a letter warning him about his misconduct and informing him of a performance improvement plan for the next two months.
In response to his ‘stop bullying’ application, the parties attended two conferences in an attempt to resolve the issues without the need for a hearing. The advisor agreed to amend his application to remove three of the original persons named, but as he saw it, he was still at risk of bullying from one of the four he’d named initially. The matter could not be resolved amicably, so the matter was heard by the Fair Work Commission on 14 December 2023.
In the Commission
The advisor submitted that he’d been bullied by the person he’d named, who’d been his supervisor for a period and begun the proactive monitoring of his conduct. The alleged bullying related to the performance appraisal process.
The advisor claimed that the supervisor had failed to follow AppleCare policies and procedures in relation to performance feedback and coaching, withheld relevant information from, and failed to follow the direction of the Employee and Labour Relations Department, framed and portrayed allegations and omitted critical information in a manner and to an extent that it amounted to unreasonable bullying behaviour.
He claimed the supervisor had misused his position to unjustly build a case of misconduct against the advisor; that the supervisor repeatedly and deliberately failed to share business critical information with the advisor; that this was not reasonable management action and that he was at risk of ongoing bullying by the person.
The employer’s take on the advisor’s claims was that there was nothing remarkable about the monitoring process. All employees were notified of the monitoring requirement when they signed their contract of employment and due to the work being completed 100% remotely from home, such monitoring was a reasonable condition.
The employer’s position was that whenever concerns justifying the use of monitoring arose, common practice was to monitor the behaviour over an extended duration to determine whether the concerns warranted further investigation and potentially disciplinary action or were not warranted, and monitoring should cease.
The employer asserted that the situation had arisen as a direct result of the advisor’s refusal to be managed by the person named. The person named had long been removed from any involvement in the formal investigation or any disciplinary outcomes – there had been no interaction between the two for over 12 months – and there was no repeated behaviour that would constitute bullying and certainly no conduct from the person named which created a risk to health and safety. In short, that that all disciplinary action was reasonable management action undertaken in a reasonable manner.
After assessing the materials and evidence in the matter, Fair Work Commissioner Paul Schneider considered that though the advisor was ‘not maliciously or vexatiously’ pursuing his application, it appeared that it was motivated by the advisor’s dissatisfaction with the outcome of the investigation.
Commissioner Schneider was not satisfied that bullying had occurred, nor that there was ongoing risk. He noted that when managing performance concerns, ‘differences in management style, much like differences in personality, can give rise to upset in employees who, due to their own personality and reaction to feedback, do not take well to a particular management style’.
‘Although good managers should strive to ensure their communication [with employees] is tailored to reduce any such issues, the incompatibility of personality styles as a phenomenon within the workplace, and any resulting friction that can occur, does not constitute bullying under the Act’, he said.
For these reasons, the advisor’s application was dismissed.
What it means for employers
Performance appraisal can be challenging, but friction between staff members resulting from personality clashes does not necessarily amount to bullying, in terms of the Fair Work Act.
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