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Bullying claim rejected by Fair Work Commission

035BullyingClaimRejectedByFairWorkCommissionThe Fair Work Commission (FWC) has found a Bunnings Warehouse supervisor did not bully her subordinate despite an independent report concluding her references to his disability were “inappropriate and unreasonable”.

Dismissing an application for a stop bullying order, Fair Work Commissioner, David Gregory, said John Krnjic, who worked part-time in Bunnings’ electrical department since 2009 was “perhaps unhappy” about the level of scrutiny from his supervisor. However, this did not amount to bullying.

Krnjic alleged that his “G4”, or team leader, Jenny Morihovitis, had bullied him.

On 19 May 2016, Krnjic claimed Morihovitis was “deeply disrespectful and hurtful” and discriminated against him when she asked him what had happened to his face. He said in a statement that the left side of his face had dropped and that he could not move his left arm.

Krnjic rejected Morihovitis’ claim that she had been concerned about his safety. He denied that he had asked Morihovitis about her marital status and whether she had children during their discussion, but acknowledged he had asked her the origin of her accent, which had made her uncomfortable.

On 8 June, Krnjic alleged that Morihovitis had questioned him incessantly on the phone about why and how long he would be in the tool shop, which he had visited to get a work-assisted vehicle (WAVE) to reach high shelves. He handed the phone to another employee after finding it “pointless to continue the conversation” given Morihovitis’ “incessant questioning”.

Krnjic also claimed Morihovitis confronted him after he took a lunch break, insisting that he report to her before taking breaks. Krnjic said that he felt Morihovitis treated him differently to other employees.

Krnjic attempted to speak to the store manager about the confrontation but was told she was too busy and as a result he subsequently took stress leave.

Meeting to examine refusal to perform tasks

On 14 June, Bunnings became aware that Krnjic had made a Human Rights Commission application claiming he had been discriminated against due to his disability. He lodged his FWC application the next day.

On 16 June, Krnjic went into work but the store coordinator told him he had been suspended and should go home. He claimed that he was not given any further explanation. The coordinator said the company was conducting an investigation and that Krnjic would be required to attend a meeting on 22 June to discuss the outcome. The meeting would also deal with allegations of “refusing to perform tasks as directed by your G4 and speaking to a member of the team in a disrespectful manner”.

Bunnings’ human resources employee, Kelly Sullivan, called Krnjic to give him an opportunity to discuss the ongoing issues at work and promised to find out why he had been suspended.

Krnjic said he did not expect a fair outcome from the meeting with Bunnings’ area manager, Anthony Carnovale, and operations manager, Simon Jones, given his previous experience with Carnovale. Krnjic failed to attend the meeting due to illness.

Krnjic has been on unpaid sick leave since then, supported by medical certificates.

An 11 August a medical report in response to a WorkCover claim by Krnjic concluded that he had developed depression, symptoms of anxiety and an adjustment disorder. It said Krnjic’s “principle criticism” was that his manager had “micromanaged him and that this is a distinctly different approach to that employed with other workers”.

In addition, the medical report noted: “There is a question of whether the worker was not in his usual comfortable state of mind when the interaction with the manager occurred in which he may have taken the manager’s comment in a more sensitive than required way however I’m not in a position to determine this.”

Krnjic concluded Bunnings’ actions had “left him feeling worthless and totally degraded”.

Report finds appearance reference unreasonable

The Victorian Chamber of Commerce and Industry (VECCI) conducted the investigation for Bunnings. The report, which was provided on 9 January 2017, found that some allegations about Krnjic’s inappropriate and disrespectful behaviour were substantiated.

It concluded that Morihovitis’ reference to Krnjic’s appearance was indeed “unreasonable and/or inappropriate”.

Krnjic claimed the report was “full of factual errors, which was greatly distorted” and argued management had “intentionally and calculatedly stalled this whole process expecting that I will somehow depart”.

Bunnings decided to extend by 12 months a previous and final warning Krnjic had received.

Bunnings insists it took reasonable management action

Bunnings objected to Krnjic’s bullying claim given the absence of repeated unreasonable behaviour and any behaviour that posed a health and safety risk. The company argued it had taken reasonable management action and said Krnjic had failed to provide appropriate responses to “reasonable and legitimate questions about his whereabouts in the store”. Krnjic responded inappropriately to Morihovitis by saying “you’re not a policewoman, stop asking so many questions”.

Commissioner Gregory said: “I have no reason to doubt that Mr Krnjic believes he has been bullied by being singled out and treated differently from other employees. However, that of itself is not sufficient to establish he has been ‘bullied at work’.”

He was satisfied that Morihovitis’ behaviour in querying Krnjic’s appearance was “at best, insensitive and inappropriate”, but he concluded that she had not “acted in a malicious way, or with an intent to cause harm or distress”. Commissioner Gregory identified some “concerning aspects” of the matter such as Krnjic’s suspension without explanation.

He said the matter “involves two strong personalities”, with Krnjic “perhaps unhappy about this level of scrutiny and believed he should have a degree of autonomy in terms of how he carried out his role and responsibilities”.

“All of these factors have clearly created a degree of tension and difference of view between Mr Krnjic and Ms Morihovitis,” Commissioner Gregory said. “However, for the reasons set out in this decision I am unable to conclude in all the circumstances that Ms Morihovitis has repeatedly behaved unreasonably toward Mr Krnjic in a way that can be said that he has been bullied at work.”

Commissioner Gregory concluded “it is to be hoped that he is now in a position where he is able to return to work and resume his duties”.

(John Krnjic [2017], FWC 3688, 12 July 2017)