A frivolous waste of time – but all too common

Many bullying claims come from employees’ frivolous response to routine management actions.

One Minute Summary

The employee makes an ‘Stop Bullying’ application against his employer for their unreasonable behaviour towards him.
The core underlying issue is his performance rating under a bonus system.
The Deputy President carefully reviews each of his 15 instances of bullying and dismisses all of them.
The decisions makes it clear the applicant wasted the Commission’s time.
Unfortunately many such bullying applications related to reasonable routine employer actions.

In reviewing Fair Work Commission stop bullying decisions it has become apparent that, while there are genuine cases of bullying, employers are more likely to receive a frivolous bullying complaint aimed at reasonable attempts at performance improvement.

In this matter Mr Mahoney made an application to the Fair Work Commission seeking ‘Stop Bullying’ Orders against Telstra and two managers – Mr Leigh and Ms Wells.

The case had several unusual angles but we’ll focus on the claimed bullying incidents in this update.

Let’s set the scene with this early paragraph from Deputy President Lake’s decision:

‘…the Applicant was not bullied because none of the incidents he describes demonstrate unreasonable behaviour, let alone repeated unreasonable behaviour. In fact, the Applicant has repeatedly behaved unreasonably towards his manager, Mr Leigh. If anyone is in a position to make a claim for workplace bullying, it is Mr Leigh’

At the core of multiple interactions was Mr Mahoney’s dissatisfaction with his Short Term Incentive bonus where was awarded a ‘3’ (and not a ‘4’ as he claims he deserves) for which he was paid a bonus of $29,876. This rating was awarded to him under the policy guidelines as Mr Mahoney had been absent for 75% of that assessment year on extended sick leave. (Not only had Mr Mahoney lodged a bullying application he also lodged a General Protections claim for being rated as a ‘3’ and not a ‘4’. His GP claim was not part of this case.)

Taken from the decision the Deputy President conveniently summarises the Applicant’s bullying conduct as follows:

Mr Leigh did not reply to the Applicant’s Teams messages after the Applicant had told Mr Leigh to “take all the time you need”.
Mr Leigh said the Applicant should raise his query regarding any preserved sick leave entitlements with HR and then stated that he would follow up with HR directly and that queries should be directed to Mr Leigh.
Mr Leigh gave the Applicant differing reasons for why he did not reply to the Applicants’ Teams Messages in the meeting versus over email.
Mr Leigh did not copy in Ms Chatterjee on an email.
Mr Leigh said the Applicant disputed his rating when, according to the Applicant, he only disputed the process and policy behind that rating.
Mr Leigh asked the Applicant to put his query regarding the preserved AWA sick leave entitlements in the form of a question.
The Applicant’s line manager was changed without the Applicant being informed beforehand.
Mr Leigh told the Applicant that any decision regarding accessing preserved sick leave entitlements would be made once the Applicant had exhausted his accrued sick leave entitlements.
Mr Leigh said that the Applicant chose not to participate in the PRDP process.
Mr Leigh told the Applicant that step 2 of the review process was to go to HR.
Mr Leigh told the Applicant that he had decided that Ms Chatterjee would not be in the IRP meeting.
Ms Wells failed to schedule a meeting with the Applicant after saying that she would.
Mr Leigh sent an internal email, for the purpose of an IME briefing, describing the Applicant’s behaviour in the meetings on 31 July 2025 and 29 August 2025 as “aggressive”. Mr Leigh also said that the Applicant had not submitted a request for a Stage 2 review and had missed the deadline for escalation.
Mr Leigh provided the Applicant with a detailed response regarding his AWA sick leave query. The Applicant said this was “unsolicited” despite having previously complained about Mr Leigh not “taking ownership” or answering his questions on that issue.

Ms Wells (Mr Leigh's manager) was listed in Mr Mahoney’s Stop Bullying application after having no interactions with him other than stating in an email she would set up a meeting to review his ‘3’ performance rating which did not occur due to an oversight by her PA.

The Deputy President examined each of these unreasonable behaviours in turn in an objective manner and dismissed them. Reading between the lines you can feel the frustration.

Early in the proceedings, before Mr Mahoney filed his evidence, DP Lake referred him to an extract from a key decision by the Vice President Hatcher (before he became President) which stated:

“I attempted to draw up a list of the features at least some of which one might expect to find in a course of repeated unreasonable behaviour that constituted bullying at work. My list included the following: intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination.”

The only (slight) negative comment made against Mr Leigh and Telstra was that there were some delays in responding to Mr Mahoney but acknowledged, while they were not ideal, they were not excessive.

The Deputy President’s final paragraphs summarise it nicely:

‘It is unfortunate that the Applicant has seen fit to waste the Commission’s time with what is, in my view, a spiteful campaign against Mr Leigh fuelled by a series of pedantic complaints and an unwavering belief that he must be right. The Applicant could have instead spent that time focussing on his recovery. I am hopeful that the Applicant reads this decision and reflects on his own behaviour.

The application is dismissed. I Order accordingly.’

Commentary

While the above is at the more extreme end of frivolous bullying claims it is not unusual. It becomes apparent in reviewing such cases that employers believe they are acting in a reasonable manner when suddenly they face a bullying claim. There are quite a few decisions where performance management or PIP’s have resulted in bullying actions which employers have no option but to defend.

It is unfortunate that there is no system to weed out these types of frivolous claims from the genuine cases. If the employee decides to continue the matter will proceed to full hearing – and potentially an Appeal. Employers end up paying a lot of money for representation to defend themselves.

Perhaps the solution is to make it easier to seek redress for the legal fees spent. In most cases this is quite a difficult process.

In the above case Mr Mahoney is still an employee of Telstra. What happens when he comes back to work? What can the employer do? The employee has made a complaint to Fair Work – the ‘Stop Bullying’ application. When the employee returns to work and the employer acts against them in an adverse (negative) manner they can make a General Protections claim against the employer. Do you think Mr Mahoney will do that?

It is recommended that employers tighten up their approach to performance managing difficult employees. If they believe the employee could take such action then professional assistance should be sought to ensure the employer can defend themselves

Kind Regards

Michael Schmidt

M 0438 129 728

[email protected]

www.hunteremployeerelations.com.au