One Minute Summary

• A manager who was terminated after several employee complaints alleging bullying and harassment, has lost her unfair dismissal application in the Fair Work Commission.
• The employer had responded in a comprehensive manner to allegations of bullying and harassment before termination. Employers cannot ignore these important steps.
• The Commission examined each allegation in detail and found a number of them unsubstantiated before focussing on the remaining behaviours in great detail.
• With 12 years of service and no warnings in place the Commission found the manager’s termination was not harsh or unjust or unreasonable.  
• Employers are urged to respond to employees raising complaints of bullying and harassment and take a comprehensive approach determining the facts before termination.  

A Fair Work Commission decision recently found that a manager’s style of communication amounted to bullying and harassment and was a valid reason for her dismissal. The manager had not received prior warnings in respect to her behaviours which were not at the serious end of the bullying and harassment behavioural spectrum as far as such behaviour can be assessed.

Ms Foster was the Sales and Service Operations Manager of a large Perth based ‘not for profit’ called MSWA Limited which provides services for people living with neurological conditions. Ms Foster was responsible for managing the MSWA call centre.

After negative staff engagement feedback and an initial complaint in August 2025 by several staff, Ms Foster’s manager explained to Ms Foster ‘that her communication style needed to be adjusted to ensure that she communicated professionally and to foster a respectful and positive team culture.’ Ms Foster agreed to work on her communication style. At a stretch this discussion could be classed as an informal coaching session.

On 21 October 2025 several staff made complaints about Ms Foster. On 22 October Ms Foster was suspended from duty, and an external investigator was engaged by MSWA.

On 28 October 2025 eight allegations of bullying and inappropriate behaviour were made against Ms Foster.  These allegations were set out in detail in a letter to her. Following Ms Foster’s interview with the investigator a Show Cause letter was forwarded to her. Several days after her response was received, she was terminated and paid five weeks’ notice.

During the unfair dismissal proceedings, each of the allegations were examined in detail with evidence being presented by MSWA staff and Ms Foster. Ms Foster denied the allegations or argued that her actions were reasonable management actions. The Commissioner examined and assessed each allegation in the decision.

Many of the allegations which were determined to be substantiated during the investigation were shown not to be proven in the FWC decision. We’ll only address the allegations determined by the Commissioner to be substantiated. They fall into two categories. Firstly ‘in appropriated management style’ and secondly ‘bullying and harassment’.

Inappropriate Management Style

• The first allegation under this section related to Ms Foster preventing staff from assisting each other while working. Staff were not allowed to ask each other work related questions. Ms Foster determined she was the only person to be asked a question. The Commissioner stated ‘staff talking to each other and sharing information and asking questions of each other is a routine part of a workplace. Firm and unrelenting insistence that all questions must be directed at the manager or leader is an example of an inappropriate management style.’
• The second allegation related to Ms Foster loudly calling out staff who talked to each other in the call centre. The Commissioner stated this should have been addressed in a one-on-one conversation and staff not chastised in front of their peers.

Bullying and Harassment

The Commission considered the following incidents to be bullying or harassment:

• Ms Foster called an employee at midnight waking her and telling he she had been texting her repetitively including that the employee was in immediate danger and other inappropriate messages. The background to this incident is not clear. The following day at work Ms Foster laughed it off.
• Ms Foster told an employee that she had ‘HR in her back pocket’ to discourage the employee from going to HR for assistance with workplace issues.
• Ms Foster, on learning an employee had anxiety issues, told that employee ‘who hired you?’ and ‘if I knew you had that diagnosis. I would not have hired you’.
• Ms Foster telling an employee, during a period of restructuring, that her job was safe. The employee was sworn to secrecy and given the ‘impression’ if she breached that secrecy her job would not be safe. The decision stated, ‘Ms Foster’s conduct was controlling, manipulative and intended to make Ms Moltoni feel like she owed her job to Ms Foster.’
• In answering a question from a staff member ‘Ms Foster’s tone was ‘condescending …unnecessary and rude’. The Commissioner stated ‘answering questions from staff… is a fundamental part of a manager’s job. Staff should be treated with dignity and respect’.
• In response to a female employee telling Ms Foster that a warehouse employee had left her feeling uncomfortable through his actions (no details provided but likely sexual harassment) Ms Foster told the employee ‘it’s the way you look, you can’t blame him, can you?’. The Commissioner stated, ‘Such a response from a manager to a staff member making a complaint of that nature is totally inappropriate’.

The Commission found that termination would have been disproportionate and unjustified if it only related to ‘inappropriate management style’ however, when combined with behaviours the Commission determined as bullying and harassment the termination was not unfair.  The Commissioner stated, ‘Having regard to Ms Foster’s 12 years of employment with the Respondent without any previous disciplinary action and the impact of dismissal, I am satisfied that dismissal is proportionate to the gravity of the Ms Foster’s conduct.’

A key aspect of the decision is that Ms Foster’s behaviours with staff breached the MSWA Bullying and Harassment Policy and the Code of Conduct.

The Bullying Policy describes bullying as:

• Workplace bullying is repeated, and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety.
• Bullying includes behaviour that could reasonably be expected to intimidate, offend, degrade, humiliate, undermine, or threaten.

The Bullying Policy describes harassment as:

• Harassment is any unwelcome behaviour or conduct by a person (which may be verbal or physical) that intimidates, offends, belittles, threatens, or humiliates another person.

The Commissioner determined Ms Foster’s conduct amounted to bullying and harassment within the meaning of MSWA’s Bullying and Harassment Policy. Therefore, there was a valid reason for Ms Foster’s dismissal – which weighs against the dismissal being harsh, unjust or unreasonable.

Commentary

I have to admit that, having read many Fair Work decisions, I was a little surprised by this decision. While workplace bullying and harassment must be taken seriously, Ms Foster had not received any warnings about her behaviour prior to her dismissal. Additionally, other decisions have made it clear that in such instances (unless the behaviours are very serious with the potential for summary dismissal) management training should take place with termination being the last resort when warnings and training have failed.

The Commission does make some interesting comments about inappropriate management style including:  

• ‘staff talking to each other and sharing information and asking questions of each other is a routine part of a workplace’
• ‘staff not chastised in front of their peers’
• ‘answering questions from staff… is a fundamental part of a manager’s job. Staff should be treated with dignity and respect’.

These topics (which clearly indicate good management /leadership practices) have not traditionally been addressed by the Commission which has preferred to examine such behaviours form a ‘workplace law’ aspect.   

MSWA’s Policies and procedures were an important foundation to the decision to terminate Ms Foster.  Employers should ensure they have comprehensive key policies.

MSWA’s approach dealing with the staff complaints, the investigation, the show cause letter and response assessment and the termination itself were comprehensive and were not critiqued by the Commission. It is clear from FWC decisions that the Commission expects employers to get these steps right. Where these steps are missed or not undertaken correctly the decision may state the employer had a valid reason for termination but lose the case on a procedural step.

So where does this leave employers dealing with potentially bullying and harassing supervisors and managers? Examine the alleged behaviours carefully and unless the behaviours are at the serious end of the spectrum, have at least one comprehensive warning in place prior to termination.

Please contact Hunter Employee Relations if seeking assistance responding to bullying or harassment complaints, undertaking investigations or determining an appropriate disciplinary response.

Kind Regards

Michael Schmidt

M 0438 129 728

[email protected]

www.hunteremployeerelations.com.au

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