What can I do if I am being bullied at work and might be sacked due to personality conflicts with a manager?

Personality conflicts

You might be bullied at work because you have a personality conflict with a fellow employee or a manager. Personality conflicts can arise in many different scenarios, including because of your work ethic, your personality and characteristics, or because you are an established employee and your colleagues or manager want to change the way ‘things are done’.

These conflicts can arise because managers want to ‘make their mark’ on the way that work is performed, and often do not have a problem with treating existing employees poorly to ensure that their own agenda is achieved. This might even be because you are not a ‘yes’ employee who agrees with every direction of your manager simply because they occupy that position.

Bullying may include micro management of your position or team, and nit-picking of minor tasks which you perform daily. It may also extend to focusing on alleged minor misconduct, which may be trumped up to seem much worse than it is. You do not have to suffer with being treated adversely in your workplace, and there are protections available to you to ensure that you enjoy you work and your job. Bullying, harassment and victimisation of an employee by management is not uncommon when personalities clash or management work agendas are implemented at the expense of maintaining valued employee relationships.

What can I do?

It is important that if you are being bullied or harassed that you make a complaint in accordance with your employer’s grievance procedures. These procedures are commonly found in your employment policy, code of conduct, Enterprise Bargaining Agreement or by inquiring of your human resources department as to the process that you need to undertake.

Enterprise Bargaining Agreement

Employees that are employed under an Enterprise Bargaining Agreement have a special status and benefit from a tighter regulation of disciplinary proceedings against them before termination of employment. You should check whether or not you have an Enterprise Agreement (EBA). EBA’s are common in heavily unionised workplaces. An EBA might have the following process:

           DISCIPLINARY PROCEDURE

1. Where disciplinary action is necessary, the management representative shall notify the employee of the reason. The first warning shall be oral and will be recorded on the employee’s personal file.

2. If the problem continues the matter will be discussed with the employee and a second warning in writing will be given to him/her and recorded on his/her personal file.

3. If the problem continues the employee will be seen again by management. If a final warning is to be given then it shall be issued in writing and a copy sent to the relevant Union.

4. In the event of the matter recurring, then the employee may be terminated. No dismissals are to take place without the authority of senior management.

5. Dismissal of an employee may still occur for acts of “serious and wilful misconduct”.

6. If a dispute should arise over the disciplinary action, other than termination of an employee who has not completed at least six months service with the employer, the course of action to be followed is that the matter shall be referred to Fair Work Australia for resolution. Such resolution shall be accepted by the parties as final.

7. If after any warning, a period of twelve months elapses without further warning or action being required, all adverse reports relating to the warning must be removed from the employee’s personal file.

This may be summarised as follows:

The first warning shall be oral but must be recorded on the employee’s personal file. If the problem continues, the matter will be discussed with the employee and a second warning, in writing, will be given and recorded on the employee’s file. If the problem still continues, the employee will again be seen by management. If a final warning is to be given, it shall be issued in writing and a copy sent to the relevant Union.

If the problem reoccurs, the employee’s position may be terminated. An employee cannot be terminated without the authority of senior management. If a dispute arises over the disciplinary action, the matter shall be referred to Fair Work Australia for resolution, which shall be accepted by the parties as final.

Any complaint that you make must be treated confidentially by your employer and investigated fully. It is possible that when your manager is made aware of your feelings the adverse treatment will cease. This is particularly so when your manager is made to appreciate that you take their conduct seriously and are willing to pursue its investigation through the appropriate channels. Any employer who is serious about protecting the wellbeing of its employees will fully investigate your complaint and take appropriate action on its findings.

If your complaint is substantiated by your employer, it must take action to ensure that any conduct which constitutes bullying or harassment is ceased. This may include counselling your manager so that their behaviour does not continue. You may also be counselled as to what has occurred, what should occur in the future, as well as continued support of your employment. 

If, after an investigation into your complaint, your employer finds insufficient evidence to establish your allegations, you may find yourself back at square one. Either your employer may not find enough evidence to support your claim of bullying and harassment, or your employer may not believe that your manager has acted inappropriately in the circumstances. Your manager may continue to treat you adversely, and in a worst case scenario, your employer may turn the investigation into a personal attack on you or your work. Rather than focusing on the negative conduct of your manager, your employer may challenge you and your conduct in the workplace, focusing on a relatively minor issue to justify the personality clash you were facing initially. If this occurs, you may wish to consult an expert employment lawyer to obtain advice as to your legal rights. 

Your legal options

If you continue to be bullied and harassed, you may wish to consider lodging a complaint with the Victorian Human Rights and Equal Opportunity Commission. The Commission will investigate a complaint of discrimination because of a protected attribute under the Equal Opportunity Act 2010 (Vic). Section 6 lists these attributes including race, sex and political beliefs, with subsection (c) giving protection against employment activity. Employment activity is defined in section 4 to mean an employee, in their individual capacity

      -     making a reasonable request to your employer, orally or in writing, for information regarding your employment 
            entitlements; or

      -     communicating to your employer, orally or in writing, your concern   that you have not been, are not being or will not 
            be, given some or all of your employment entitlements.

You may also find protection under the Fair Work Act 2009 (Cth). This Act provides 10 National Employment Standards for employees which includes hours of work, flexible work arrangements, leave entitlements as well as termination payments. Section 44 prevents your employer from contravening these national standards.

Further protection exists under the Act for adverse treatment because of your engagement in a workplace right.

Making an official complaint to your employer gives your further protection from bullying and harassment. Section 342 defines adverse action in regards to your employment as dismissal, injury, altering your position which results in prejudice, or discriminating between yourself and other employees. You have a workplace right if:

- you are entitled to the benefit of a workplace law or instrument
- you can initiate or participate in proceedings under a workplace law or instrument
- you can make a complaint or inquiry either
                  -      to a person who has the capacity to seek compliance with that law; or
                  -      in relation to your employment

Your employer is prevented from taking adverse action against you because you possess, exercise or propose to exercise your workplace rights, or to prevent you exercising your workplace right.

The Act also provides you with protection under section 351 from adverse action of your employer which constitutes discrimination on the basis of a number of attributes which include race, sex and age.

If you elect to make a complaint to either the Commission or to Fair Work Australia, you entitle yourself to a further protection against your employer. By making a complaint you evoke the protection of victimisation provisions of the Equal Opportunity Act 2010 (Vic). Section 103 prohibits your employer from victimising you. Section 104 then outlines that victimisation occurs if you are subjected to detriment because you have

       - brought a dispute to the Commission for resolution
       - made a complaint under the Act’s predecessor.

If you choose to make a complaint against your manager, and you are treated adversely because you made the complaint, you are protected and may consider a further complaint against your manager and employer.

Despite engaging these protections, your position may still be at risk. Your employer may target you with allegations of misconduct or poor performance and give your formal warnings. This may be an attempt from your manager to bully you into resignation, or may be preparing misconduct proceedings in preparation for your dismissal.

One option available to you is to apply for an injunction to prevent your employer terminating your employment.

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