Childcare employer put in naughty corner but Fair Work Commission finds “heavy-handed” treatment is not bullying

A Melbourne childcare centre has escaped blame in a bullying case before the Fair Work Commission, but the watchdog has told the centre it must improve its performance management after hearing claims an employee was yelled at by a colleague and inappropriately questioned about her sexuality.

The unnamed childcare centre is the latest employer to avoid a bullying judgment this year.

The employee, who was named only by the initials YH in the Fair Work Commission finding, claimed a co-worker bullied her on numerous occasions between 2010 and 2014.

YH claimed her colleague yelled at her on several occasions, threatened to “kick her out” of the centre’s room for three-year-olds, and asked about her sexuality after she gave a lift to another female worker.

But the co-worker in question told the commission she believed the employee had performed below expectations and had “not pull[ed] her weight with respect to providing care needs to the children”.

YH lodged a complaint with the centre’s committee of management about her treatment, but it was dismissed as unsubstantiated after an investigation by two committee members. The committee found there had simply been a “history of interpersonal conflict” between the two workers, which did not amount to bullying.

Commissioner Wilson agreed with their view, dismissing YH’s bullying claim and finding she was likely difficult to supervise and prone to avoid unpleasant or undesirable tasks.

Wilson did, however, find YH’s co-worker had acted in a   “heavy-handed” way and the centre had not managed the issue well.

He recommended the centre “adopt and follow a performance management process that ensures early judgements about poor, or less than satisfactory, behaviour are not reached by [the co-worker] without allowing the employee to whom she is talking to understand the nature of the complaint and to then respond.”

Employment lawyer and M+K Lawyers partner Andrew Douglas told SmartCompany it was a “heartening” ruling that took into account the “reality of the workplace”.

“It shows that there will be continued conflict, people not getting on together or occasional rudeness, but those things don’t amount to bullying,” says Douglas.

Douglas say that while the childcare centre was told to “pull their socks up” by the commission and told they could have done a better job in managing the conflict, the finding shows the commission won’t be “drawn into petty conflict”.

“It shows workplaces are quite robust places,” he says.

“Despite the hyperbole on bullying in the mainstream media, it shows most employers are really decent people trying to do the right thing, even if they lack some of the basic skills to do so,” says Douglas.