Can your employer comment on your appearance?

Recently, an employee made an application to the Fair Work Commission to order his employer to stop bullying him, after his supervisor had asked him what happened to his face.[1] Although the Fair Work Commission found that raising the issue of the employee's appearance was inappropriate and insensitive, it did not amount to workplace bullying, even though the employee found the question to be deeply disrespectful and hurtful and genuinely believed that he had been bullied. The Fair Work Commission found that the supervisor's comment was not made in a malicious way or with the intent to cause harm or distress. More significantly, the comment was a 'one-off' and did not form any part of a pattern of repeated unreasonable behaviour. This decision has made it clear that if your employer comments on your appearance, it would only amount to bullying if: (i) It causes you to hold a reasonable belief that you have been bullied at work. The belief must be a reasonable one in the objective sense, meaning that it is not based on an irrational or absurd view, considering the circumstances; and (ii) It is part of a pattern of repeated unreasonable behaviour towards you. 'Repeated' refers to the persistent nature of the unreasonable behaviour. It does not require either a specific number of incidents or the same specific behaviour to be repeated, as long as it is part of a concerted pattern of unreasonable behaviour. 'Unreasonable behaviour' is behaviour that a reasonable person having regard to the circumstances, would consider unreasonable in the objective sense; for example, if the behaviour lacks an evident and intelligible justification. Therefore, an action could still be reasonable, even if a better or more preferable course of action could have been taken; and (iii) The behaviour creates a risk to your health and safety. For example if the repeated behaviour has caused you considerable stress so as you needed to see a doctor. If you have any concerns about workplace bullying, please contact our Employment Law team on 9870 9870. [1] John Krjnic [2017] FWC 3688