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Introduction

This decision has a lot of “wow” factor – not only in terms of the financial cost to the company, but the importance of dealing with issues front-on, including complaints of bullying (in this case 7), the exacerbation of an (unknown to company) mental health condition, monitoring workloads, and the importance of the contract of employment being right first time.

Remembering that the onus is on the employer (within reason) to prove it did nothing wrong (ie the “reverse onus of proof”).Further the “bully” was personally fined $8,000.

Please also note that I have “glossed over” a number of issues due the length of the decision.

Further noting that there is NO income limit for an adverse action claim (and whilst not pertaining to this case, no minimum employment period).

The penalty

To get this out of the way first, the penalties were made up of:

  • Fines of $40,000 to the company and $7,000 for the “bully”.
  • The company was ordered to pay the applicant:
    • $756,410.00 as compensation in respect of his forgone share options;
    • $2,825,000.00 as compensation for his future economic loss.
    • $10,000.00 for general damages.
    • Damages for breach of contract of $1,590,000.00.

The Fair Work Act 2009 provides for the maximum penalty for a single contravention by the company is $54,000.00 and for the boss $10,800.00. The seven contraventions involving the making of complaints must be grouped together as one contravention for the purpose of assessing penalties.

Background

The applicant in this matter was employed at a publicly listed enterprise software company as State Manager for Victoria on 3 July 2006 until his dismissal 18 May 2016.

At the time of employment, the company was very small and became “very large” due (in part) the good efforts of the applicant.

The company’s reason provided for the dismissal (which was rejected by the court) was poor performance.

However, the applicant (via his QC and assisting counsel) that he was dismissed unlawfully for “making a workplace a complaint”, contrary to s 340 of the Fair Work Act:

  • Seven instances of his exercising his workplace rights by making complaints in relation to his employment: in particular, complaints as to his having been bullied (ie marginalising him, stopping him from attending meetings with clients and preventing him from doing his job);
  • His proposed exercise of his right to bring legal proceedings under a workplace law;
  • His proposed exercise of a safety net contractual entitlement; and
  • His having a safety net contractual entitlement.

The court noting that the applicant’s legal team did not press claims that he had been dismissed for other reasons (being his taking sick leave; being temporarily absent from work; and having a mental disability).

Show me the money

With the growth of the company, so was the applicant’s salary with his gross income increasing from $208,932.00 in the 2006/07 financial year to $845,128.00 in the 2015/16 financial year. Most of that increase was attributable to incentive payments; with his base salary increase only from $165,000.00 to $192,000.00 during the same period. He was also provided with share options in 2013, 2014 and 2015.

Personal crisis and ongoing Depression (work/life balance)

Whilst financially things were going very well, in the background he was working very long hours to the detriment of his home life: in September 2010, his 14-year-old daughter became ill with Kawasaki disease, requiring open-heart surgery in January 2011. He did not go to the hospital with her at that time. He had thought it vital to finalise an important deal on behalf of the company before the end of the company’s financial year. This not only left the applicant with feelings of guilt, but directly attributed to chronic depression.

Ironically, the applicant found solace in attending work to “escape the pain”. This also made worse his relationships with his family. In the words of the court:

“[The applicant] identified his feelings of guilt as stemming from his inappropriately having prioritised his work for [the company] over his daughter’s life and health. It is therefore perhaps cruelly ironic that [the applicant’s] evidence is that in order to avoid that distress, work became the one safe place where he could “escape”. He therefore increased his already long working hours.

“Outside of work however, [the applicant] could not escape his grief. He became emotionally closed off from his wife. Predictably, that gave rise to tensions within their marriage. [the applicant] gave evidence [as did an expert witness], which I accept, that at various times the marital relationship had been on the verge of breaking down. The applicant] also experienced repeated thoughts of suicide. On at least one occasion he had taken steps, ultimately not implemented, directed towards that end”.

The company was unaware of the extent of the applicant’s distress

Apart from confirming to his work colleagues from time to time that he remained concerned about his daughter’s health, the applicant was careful not to reveal to anyone at the company the depth of his private turmoil. Being able to focus on the practical problems of work without anyone at the company knowing about his damaged condition allowed him to hide in his safe place, numb to his grief and pain.

Also causing the applicant distress, was separate legal proceedings that he and his daughter were then bringing in which each had claimed damages on the basis that certain medical practitioners who were alleged to have misdiagnosed her had been negligent.

4 November 2015, the applicant saw a psychiatrist, who testified that the applicant confided:

“They [the company] don’t know about my suicidal tendencies but I’ve been told in the past four years that I could have done better. I haven’t been performance managed yet but I have to work longer hours because I get absolutely distracted about my daughter. I’m not efficient. Severe concentration problems. I forget things and I send the wrong emails to people, repeatedly getting into trouble with my boss because I misjudge situations”.

“As a result of his dismissal he suffered a profound mental breakdown. Whether his dismissal caused that breakdown, or whether it was merely a manifestation of his earlier depressive disorder from which he had continued to suffer after his daughter’s illness, is the subject of contested expert evidence to be discussed later. It is however not in dispute that after he was dismissed [the applicant] became, and remains, incapable of ever working again”. [My emphasis].

The applicant’s performance at work does not materially decline notwithstanding his (later diagnosed) depressive disorder

The court did not accept that the applicant’s long established, and only later diagnosed, depressive disorder caused a material decline in his performance at work, citing the performance bonuses provided to the applicant. He also received the “Chairman’s Award” in of 2012, 2013 and 2014.

Serial Complainer = exercising a workplace right

He was always astute to ensure that his contribution to the success of the company be rewarded in monetary terms; to the extent that his boss describing the applicant as being a constant complainer:

“[The applicant] complained from the day he started at [the company]. He complained from day one that the salary that we had offered him and that he had agreed was not enough and I had to change it. He complained about options. He complained about staff. He complained so much. You will see it through all the papers, and the last three or four months … I couldn’t care less about a complaint. All I cared about is his ability to perform, number 1, and number 2, that his behaviours were acceptable. But his complaints were totally irrelevant to the whole thing. And if Behnam had been the right person, he would still be there”.

The court commenting:

“As [the applicant’s boss] evidence implies, I am entitled to be satisfied that had [the applicant] not been a strong performer he would have been given very short shrift. Instead, I infer that [his boss] yielded to [the applicant’s] demands for additional financial rewards because he was a strong performer whose services he wished to retain”.

“I am satisfied that [the company’s] “Open Door Policy” and its “Workplace Bullying Policy” …are not disputed to have been applicable at the relevant time. They provide an explicit basis for the Court to be satisfied that [the applicant] was “able to make a complaint” as he claims he did, inter-alia, about his having been bullied in relation to his employment”.

The court adding:

“The same applies with respect to any complaint [the applicant] made in good faith regarding his contractual entitlements…I respectfully adopt the reasoning of Rangiah and Charlesworth JJ in PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15 at [19]-[20]:

‘Under the general law, an employee has a right to sue his or her employer for an alleged breach of the contract of employment. A suit may be regarded as the ultimate form of complaint. Accordingly, in our opinion, an employee is “able to make a complaint” about his or her employer’s alleged breach of the contract of employment. That ability is “underpinned by” (to use Dodds-Streeton J’s expression in Shea) the right to sue, and extends to making a verbal or written complaint to the employer about an alleged breach of the contract.

‘Further, an employee who alleges that his or her employer has contravened a statutory provision relating to the employment is “able to make a complaint” within s 341(1)(c)(ii) of the FW Act. That right or entitlement derives from the statutory provision alleged to have been contravened. The ability encompasses making a complaint to the employer or an appropriate authority about the alleged contravention, whether or not the statute directly provides a right to sue or make a complaint’”.

The court ultimately finding that the applicant did exercise a workplace right by complaining about his being bullied by one or more other employees of the company or about his safety net contractual entitlements.

Bullying

The applicant had complained of bullying to the HR department, however the fact that he did not formalise the complaint, it was telling that the HR person who met with the applicant “conceded in their conversation that the conduct he had described to her was unacceptable”.

Pecuniary penalties

The court, as previously mentioned, was satisfied that it can make orders compensating the Applicant for loss that he has suffered because of the Respondents’ contravention of the Fair Work Act, finding that there was a clear “causal connection” between that contravention and the various forms of loss suffered by the applicant. These being described in detail as:

  • Forgone share options;
  • Future economic loss:

“At common law, damages are payable to compensate a person for a loss of future earning capacity where that loss of capacity is caused by reason of an injury which in turn has been caused by the wrongdoer’s negligent act or omission, and the diminution of earning capacity is or may be productive of financial loss: Graham v Baker [1961] HCA 48; 106 CLR 340 at 347.

“Also at common law, the fact that a plaintiff may be predisposed to an injury caused by tortious conduct does not reduce his damages; the tortfeasor must take an injured person as he finds him or her. As Dixon CJ put it in Watts v Rake [1960] HCA 58; 108 CLR 158 at 160:

‘If the injury proves more serious in its incidents and its consequences because of the injured man’s condition, that does nothing but increase the damages the defendant must pay. To sever the remaining leg of a one-legged man or put out the eye of a one-eyed man is to do a far more serious injury than it would have been had the injured man possessed two legs or two eyes. But for the seriousness of the injury the defendant must pay’.

“I am satisfied…that in circumstances in which:

  • a person’s capacity to have continued in remunerative employment has been demonstrated over approximately half a decade, notwithstanding their suffering from a depressive disorder; and
  • where expert psychiatrists uniformly opine that the person’s dismissal for a prohibited reason has caused a significant aggravation of their pre-existing depressive disorder, with the consequence that they have lost their capacity to work and have a poor prognosis of ever regaining any capacity for remunerative employment in a position for which they would be otherwise qualified;
  • the Court is entitled, within the meaning of s 545 of the Fair Work Act, to consider it appropriate to make an order compensating that person for the economic loss he or she has suffered: without any reduction by reason of the person having the pre-existing condition which their unlawful dismissal has aggravated.
  • General damages

“At common law damages are payable for pain and suffering, which includes physical pain; mental illness or anguish; loss of enjoyment of life; and loss of the amenities of life.

“Loss of amenities” refers to the destruction or diminution of a faculty or skill that causes “the deprivation of the ability to participate in normal activities and thus to enjoy life to the full and to take full advantage of the opportunities that otherwise it might offer”: Teubner v Humble [1963] HCA 11; 108 CLR 491 at 506 per Windeyer J. Such damages are awarded once and for all. If the damage is or may be permanent, then it has to be assessed for the duration of the applicant’s life. While it is “impossible precisely to translate pain and suffering and the loss of enjoyment of life into money values”, and no amount of money will restore an applicant to her pre-injury position, that is the purpose of an award of such damages. That means that an attempt must be made to assess a reasonable sum, having regard as far as possible to the prevailing standards of the community: O’Brien v Dunsdon (1965) 39 ALJR 78.

“Notwithstanding, there is no “tariff” on damages for pain and suffering. In Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; 119 CLR 118 (Planet Fisheries) per Barwick CJ, Kitto and Menzies JJ observed at 125:

‘The judgment of a Court awarding damages is not to be overborne by what other minds have judged right and proper for other situations. It may be granted that a judge who is making such an assessment will be aware of and give weight to current general ideas of fairness and moderation. But …[t]he awareness must be a product of general experience and not formed ad hoc by a process of considering particular cases and endeavouring, necessarily unsuccessfully, to allow for differences between the circumstances of those cases and the circumstances of the case in hand’.

[The “ambush”…]

“However, I am satisfied [the applicant] is entitled to more than a nominal award in that regard. His dismissal for a prohibited reason was effected only after when, against his doctor’s advice, the applicant] had accepted [his boss’s] request that he to travel to Brisbane in order to attend a meeting for which [his boss]…”

“[His boss’s] representations to [the applicant] to that effect were knowingly false and deceptive. [The applicant’s] termination as then followed in consequence was accompanied within the hour by a company-wide announcement. [The applicant] was instructed not to go back to his office to collect his personal possessions; they would be sent on to him. I am satisfied that those unfortunate events added a not insignificant quantum of humiliation to the predictable shock and hurt that [the applicant] would have suffered simply by reason of the fact of his unlawful termination. I am satisfied that such humiliation became an element in his suicidal ideation immediately following that event.

“I will award [the applicant] $10,000.00 as compensation in the nature of general damages, having regard to the hurt and humiliation he was forced to suffer in consequence of the manner of his unlawful dismissal”.

  • Special damages

“…[the applicant] seeks compensation for incurred and future medical expenses from May 2016 to September 2020. He claims $50,000.00 as an approximation of that loss. However, [the applicant] has led no evidence which would entitle me to make any findings as to such claimed special damages. For that reason, I decline to make an order for compensation in those regards”.

Contract claim

This is VERY instructive for practitioners of IR/ER/HR.

The court then turned its attention to the breach of (employment) contract claim:

“In Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55; 218 CLR 471, Gleeson CJ, McHugh, Kirby Hayne and Callinan JJ stated (at [34]) “the ‘general test of objectivity [that] is of pervasive influence in the law of contract’” dictates that “[t]he legal rights and obligations of the parties turn upon what their words and conduct would be reasonably understood to convey, not upon actual beliefs or intentions”.

“That conclusion was restated in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at [38], per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ . In referring to Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; 209 CLR 95 (at [25]), their Honours said:

‘Although the word ‘intention’ is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties’.

“Their Honours continued (at [40]):

This Court, in Pacific Carriers Ltd v BNP Paribas [(2004) 218 CLR 451], has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement”. (Emphasis added)

Costs

“Neither party has advanced submissions as to costs. That may simply be because s 570 of the Fair Work Act precludes, save in limited instances, a Court awarding costs in a matter litigated pursuant to that Act. The cases – to which I have only given limited attention – suggest that it is also at least arguable that that prohibition extends to an award of costs with respect to any associated claims, such as the applicant brought in contract in these proceedings (Stanley v Service to Youth Council Inc (No 3) [2014] FCA 716; 225 FCR 357, Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20; 229 FCR 221, Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2016] FCA 987).

“Having regard to the above, I will make no order as to costs but will provide for the opportunity for the parties to file submissions if they are advised that they should be entitled to an award of costs”.

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Introduction

Full decision here.

This was a very lengthy decision involving the CEO of a local government council and its elected officials. It is good reading for those who wish to gain greater knowledge of the legal basis for making a claim of bullying.

Background

This matter involves a complaint of bullying from a local government CEO to the elected members of the city council (“the Council”). The complaint was against one of the elected councillors and involved the interpersonal relations between me the CEO and a Councillor , which had an impact on the CEO’s “health and well-being”.

Specific ally, the CEO was not happy with the named Councillor persistently making derogatory remarks about him in emails and had repeatedly undermined him in the CEO Performance Review Committee meetings. The CEO also noted that the intention of the named Councillor was to have the CEO replaced – which, CEO said, was confirmed in an email exchange between two other Councillors.

The Council, in response, held an informal meeting to discuss the complaint. They reached consensus that an investigation was necessary, the CEO’s request for personal leave would be accepted and his IT access would be temporarily suspended during the investigation – enabling a reprieve from his purported excessive workload, an issue which he had identified was causing him stress.

The investigation was carried out by an independent external consultant.

Not happy with this response

In reply to the Council’s decision, the CEO sent an email to the Council’s mayor stating:

“apparent reason for the City and each of the Elected Members when they made the resolution to take such adverse action against me would appear to be because of my complaint”

And a further email stating that there was no proper basis for the Council to place him on special paid leave under his contract – and again referred to such conduct being improper and adverse action against him because he had made a complaint.

Complaint escalated to misconduct

Following the investigation, the CEO faced allegations of misconduct and was suspended on pay pending an investigation into the allegations (misconduct investigation). At the time of this “bullying” hearing, Council had not yet determined the outcome of the misconduct investigation.

The CEO applied for urgent interim orders to prevent the Council from effectively having any further involvement about, concerning, or in relation to the bullying complaint or misconduct allegations.

The report presented to Council

On the conclusion of the investigation into the bullying investigation, a report was provided to the mayor who tabled it a meeting of Council. The CEO made an application to make a “deputation’ at this meeting, which was denied.

The Council did take action by way of resolution, which included:

  • Arrange training for the elected members;
  • Note any recorded past allegations of inappropriate conduct by the named Councillor, to determine whether anything needs to be reported to the Standards Panel, is to be examined by the Complaints Officer;
  • Review the Elected Member Code of Conduct and amend any content to clarify acceptable levels of conduct when dealing with employees of the City;
  • Review the Elected Member Communications Policy to clarify acceptable levels of conduct between elected members and employees when communicating on matters related to the functions of the City;
  • Appoint the Director, Governance, and Community Services to be its Complaints Officer.

Once these measures were implemented, the Mayor is to provide written notice to the CEO of the measures that the City is implementing to meet its obligations under the Occupational Safety and Health Act 1984, and any other statutory requirements.

The Council further determined to:

  • Provide direct Human Resources and workplace support to the CEO, on request;
  • Provide written clarification on the responsibilities of the CEO under the Local Government Act in managing the behaviour of Elected Members;
  • Request the CEO to initiate a review of the role and responsibilities of the CEO position to determine whether the job can be redesigned, or workload distributed and provide a report of the review to a committee of Council;
  • Conduct a mentoring exercise between the CEO and all elected members to ensure an understanding of the roles of all parties;
  • Conduct a mentoring exercise between the CEO and the Mayor to ensure the liaison role between these two positions are clearly identified and understood;

Can the Fair Work Commission make an interim order in a bullying claim?

No, it does not decide the Deputy President in this matter, relying on the decision of another Deputy President’s decision in Leanne Mayson v Mylan Health Pty Ltd and others (Mayson), stating that:

“I concluded that the Commission had no power to make an order – whether interim or final, to stop ‘bullying’, unless satisfied that the two limbs…had been met. First, the Commission must be satisfied that [the CEO] has been bullied at work by an individual or group of individuals and second, there is a risk that at work [the CEO] will continue to be bullied by the individual or group of individuals identified in his application”.

No bullying, therefore, no matter

The DP finding, in part, that the CEO had not been bullied at work. The DP did find that one Councillor had engaged in repeated unreasonable behaviour toward the CEO for a period, noting however that for approximately two months in 2020, this Councillor was suspended.

“However…I was not satisfied that there is a risk that at work [the CEO] will continue to be bullied by [this] Councillor”.

The DP finding:

“Based on the above, I concluded the Commission was absent jurisdiction to make the proposed interim order sought, or the proposed final order. Therefore, I dismissed the application and, accordingly…”

However, the DP did refer to a number of previous decisions on the matter of “interim orders” and concluded that the FWC has no power to make an interim “stop bullying” order.

Allegations of misconduct against the CEO

An investigation into a “leak” to a major newspaper was traced back to the CEO, therefore there were a number of issues that related to this allegation, in that the CEO:

  • Leaked a “private and confidential” email to parties not included in the process.
  • That is was apparent that the CEO attended a Council function when he was on “special leave” and when he was ordered not to attend to any of his duties.
  • Contacting members of the Council when on “special leave”.

Powers of the Fair Work Commission (for practitioners only)

By way of introduction, the DP reminded the parties that the Commission is established by the Fair Work Act 2009 and derives its powers from the same. It is not a Court of record. Its functions are set out in s.577 and the matters it is required to take into account in performing its functions are prescribed in s.578. The DP went further:

“In Re George the jurisdiction of the Commission was further examined. The relevant paragraphs at [30] –[32] are extracted below:

[30] I would also accept that the Commission might need to form some views about the apparent legal validity of various decisions and actions in order to determine its jurisdiction to deal with matters. For example, assuming the Commission otherwise had jurisdiction, this could include forming a view about whether the conduct of the parties in light of the purported resolutions was unreasonable so as to potentially form part of findings relevant to s.789FD of the FW Act – whether there has been bullying conduct. In forming those views, even on these and other legal questions, the Commission is not exercising judicial power.

[31] For this and other purposes, the Commission may also have regard to legislation made by State Parliaments, in this case South Australia, and other instruments, and determine relevant legal and factual issues provided they properly arise within a jurisdiction established by the FW Act.

[32] However, even when the Commission needs to form a view on a legal question in order to find or exercise its jurisdiction in matters of this particular nature, those views do not of themselves actually declare the legal rights more generally. For example, the Commission could not conclusively determine for purposes beyond its jurisdiction whether the SGM and SEM, were at law validly convened or whether the apparent resolutions were at law validly passed and complied with the various requirements of the APY Act. Ultimately, only a Court of competent jurisdiction (a Court of record) could make a binding declaration on those matters”.

The DP then described the Bullying provisions of the Act, including:

Having considered…the Fair Work Amendment Bill 2013 Revised Explanatory Memorandum, the observations of the Commissioner can be reduced to the following:

a) there are two prerequisites to the making of substantive orders in matters of this kind. Firstly, a finding that the worker has been bullied at work by an individual or a group of individuals; and secondly, that there is a risk that the applicant worker will continue to be bullied at work by the individual or group concerned;

b) where there is no risk that the applicant worker will continue to be bullied at work by the individual or group concerned, there is no prospect that the s.789FC application can succeed;

c) any orders must be directed towards the prevention of relevant future unreasonable conduct and be informed by, but not necessarily limited to, the prior unreasonable conduct as found. However, any orders must deal with the actual future risk, based upon appropriate findings, and having regard to the considerations established by s.789FF(2) of the Act”.

Examination of the “At work” requirement of the Bullying legislation

Section 789FF requires that the bullying occur “at work”. In the context of whether the term “at work”, the DP noting the counsel for the Council noted the observation of the Vice President in BOQ:

“…it has not been necessary for me to determine whether all of the pleaded instances of behaviour occurred while Ms Mac was “at work”, although if it was necessary for me to do so, I would have found that many if not all of the instances of behaviour dating after Ms Mac went off work because of illness on 7 March 2014 did not occur ‘at work’”.

“This was also true in the decision of Richardson v Optus Retailco Pty Ltd & Ors, (Richardson), which it was said that there appeared to be no possibility of a risk of future bullying at work by the named individuals because the applicant in that case was not presently at work, having being stood down pending the outcome of the disciplinary process arising from a co-worker’s complaint”.

The DP concluding:

“The gravamen of the argument for the …the City, was that after 24 October 2020, [the CEO] was not attending work, was not accessing his work email due to restrictions and not attending work related events. Therefore, it was reasonable to infer for the purposes of s.789FF(1)(b)(i) that [the CEO] was not ‘at work’ from 24 October 2019 until the day of the hearing”. [My emphasis].

The DP presses on with a number of other citations which reach the same conclusion.

Put simply, to be bullied “at work” you need to be in attendance and/or involved in some way in the duties of the work. In this case the CEO was on “special leave” with instructions not to do any work. The decision did not examine the fact that the CEO was on “paid” leave, but focused on the interaction between doing work and the bullying.

Was the bullying claim a ruse to interfere with the disciplinary process?

The Commission has stated that the anti-bullying jurisdiction should not be used as “a means of hampering, or even stopping justified disciplinary action, implemented by an employer, as a reasonable management response to an employee’s poor performance or misconduct”.

The DP:

“The aforementioned objections were characterised as behaviours which were unreasonable, unfair, unlawful, unauthorised, and undue. All of which, concerning the conduct post 23 and 24 October 2019, I have found not to be the case. While a wordsmith might by prolix turn of phrase attempt to dress certain conduct or behaviour (in this case predominately alleged procedural deficits) with the cloak of bullying, it is timely to recall the words of the Vice President in BOQ who said that the following conduct was such ‘which one might expect to find in a course of repeated unreasonable behaviour that constituted workplace bullying’:

…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.

While the list of behaviours set out in BOQ are not exhaustive they are indicative of the nature of behaviours which one might expect in these types of applications. There may well be occasions where management action is found to be unreasonable or has not been carried out in a reasonable manner. Hence giving rise to findings of behaviour such as bad faith. However, I have found that not to be the case here, and I do not consider it desirous to reflect on [the CEO’s] motives for making the application because they have no bearing on the findings made or conclusion reached in this case”.

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Introduction

Full Decision here.

In this Application for an order to stop bullying, the Fair Work Commission examines “reasonable management action carried out in a reasonable manner”.

Background

The applicant in this matter is employed by the Australian Criminal Intelligence Commission (ACIC – the Respondent) in its information technology area. He alleges that he was the subject of bullying by his Team Leader.

His employer countered that the alleged bullying behaviour was reasonable management action carried out in a reasonable manner.

This application was the subject of several conferences convened by the Commission which failed to resolve the matter, resulting in a formal hearing over five days.

The Deputy President hearing this matter found that the various actions/conduct of which the applicant complains were reasonable management action carried out in a reasonable manner.

The issues

Performance Appraisal

As part of the respondent’s performance management system, the applicant was “rated” as “Requires Improvement”. This assessment was in relation to the respondent’s upgrading of a project management platform. The applicant was the officer with the primary carriage for overseeing the upgrade to the platform.

The applicant disagreed with this appraisal and lodged a bullying complaint, alleging:

  • That he is a subject matter expert (SME) of a product that has great potential to provide far-reaching benefits for the agency in achieving its vision, mission and goals.
  • In the last 8 months, he has been able to deliver substantial outcomes, meeting the organizational objectives.
  • He recorded these achievements in the performance management system. Yet, his manager’s indicative rating of my performance does not truly reflect his achievements:

“The comments made by the team leader are undermining and belittling my efforts…”

Threatening behaviour

After a successfully completion of a product upgrade, his team leader “raised an outcry saying I could have had lost my job due to a trivial step that was missed in the documentation”.

The applicant responded that the outcome of the change was successful, new modules were made available to the agency users, and corrective action was taken immediately to ensure the change gets earned out within the approved window.

Humiliating

The applicant went to allege that:

  • His team leader accused him of stealing the property of the agency and tried to humiliate him in the presence of the Project Manager, stating that

“I should have read the Change Spec document prior to contacting the [Project Manager]. I had read it and I wanted some clarifications from the [Project Manager] on the given specifications, which she did not ask beforehand making such defaming remarks”.

  • On another occasion, the applicant claimed that the team leader dissuaded him from exploring the ‘review of action’ process against her decision that he considered unfair. She called the time spent on pursuing that internal process as a down tooling.

Ostracism

The applicant claiming that the team manager instructed him in writing, not to contact a set of users for any work-related activities and did not provide satisfactory reasons as to why. The team leader later permitted him to talk to the QA team saying that “she gave me her blessings to do so (reiterating ‘blessings’ few times).”

Consideration of the alleged bullying issues

Re SB

The Deputy President cited the seminal bullying decision by Commissioner Hampton made the following observations regarding the issue of reasonable management action in SB:

“Behaviour will not be considered to be bullying conduct if it is reasonable management action carried out in a reasonable manner.

Section 789FD(2) of the FW Act is not so much an ‘exclusion’ but a qualification which reinforces that bullying conduct must of itself be unreasonable. It also emphasises the right of management to take reasonable management action in the workplace. In its application, the provision comprises three elements:

    • the behaviour (being relied upon as bullying conduct) must be management action;
    • it must be reasonable for the management action to have been taken; and
    • the management action must have been carried out in a manner that is reasonable.

The Explanatory Memorandum

The Explanatory Memorandum refers to management decisions and decisions about how work is to be carried out. This suggests that the term may be required to be given a wide meaning under s.789FD(2) and that the Legislature intended everyday actions to effectively direct and control the way work is carried out to be covered by the exclusion.

Determining whether management action is reasonable requires an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time. Without limiting that assessment, the considerations might include:

    • the circumstances that led to and created the need for the management action to be taken;
    • the circumstances while the management action was being taken; and
    • the consequences that flowed from the management action.

Specific ‘attributes and circumstances’

The specific ‘attributes and circumstances’ of the situation including the emotional state and psychological health of the worker involved may also be relevant.

The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’. In general terms this is likely to mean that:

    • management actions do not need to be perfect or ideal to be considered reasonable;
    • a course of action may still be ‘reasonable action’ even if particular steps are not;
    • to be considered reasonable, the action must also be lawful and not be ‘irrational, absurd or ridiculous’;
    • any ‘unreasonableness’ must arise from the actual management action in question, rather than the applicant’s perception of it; and
    • consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances.

Management action must also be carried out in a ‘reasonable manner’

For the circumstances in s.789FD(2) of the FW Act to apply, the management action must also be carried out in a ‘reasonable manner’. Consistent with the approach above, what is ‘reasonable’ is a question of fact and the test is an objective one.

Whether the management action was taken in a reasonable manner may depend on the action, the facts and circumstances giving rise to the requirement for action, the way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters.”

Reasonable management action (performance management)

The Full Bench in Blagojevic also considered the issue reasonable management action, including question of whether placing a worker on a PIP constituted “reasonable management action”, observing as follows:

‘Section 789FD(2) qualifies the definition of when a worker is bullied at work such that it does not apply to ‘reasonable management action carried out in a reasonable manner’. There are three elements to this qualification:

      • the behaviour must be management action;
      • the taking of such management action must be reasonable; and
      • the management action must be carried out in a manner that is reasonable.

Summary of the applicant’s allegations

In this matter the applicant, among other things:

  • Disagrees with the feedback provided to him in his mid-cycle performance review and is disaffected by the decision to place him on a Performance Improvement Plan (PIP).
  • He is also aggrieved by the decision not to offer him the opportunity to act in a more senior position.
  • He contends that the team leader’s conduct towards him constituted bullying behaviour. Including accusations of raising her voice to him, engaging in aggressive, humiliating, or intimidating conduct, being rude and derogatory towards him, and being angry with him.
  • The team leader denied the behaviours attributed to her by the applicant, though she did acknowledge becoming frustrated with the applicant on occasions.

The DP considered that, if proven, the various allegations of bullying conduct made by the applicant involve management actions. Noting that the applicant’s contentions are not borne out in evidence and contradicted by a number of witnesses.

Decision

In summary, the material before the Commission supports a finding that the feedback provided to the applicant, the decisions not to offer him the opportunity to act in a higher position and to place him on a PIP and the team leader’s behaviour/conduct were all reasonable management action carried out in a reasonable manner. The DP adding:

“While some aspects might have been better handled, that does not make the particular management action unreasonable or mean that it was not carried out in a reasonable manner”.

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Introduction

Full decision here.

This matter involves a nurse who claims to have been bullied at work by a more senior nurse. To get to this decision by a Commissioner of the Fair Work Commission, the parties have travelled a long, winding track, including two conferences, a hearing and concluding final submissions delivered by telephone.

Alleged bullying

The Applicant alleged conduct by the Senior Nurse is summarised as:

  • Allegations of assault and other conduct designed to threaten or belittle the Applicant;
  • Assignment of duties issues, including refusal to assign light duties consistent with medical requirements; lack of consultation about allocation of duties at other work locations; limited or poor responses to the Applicant’s expressed concerns about changes to her work location and duties;
  • Unreasonable enquiries by the Senior Nurse about the Applicant’s work hours and entitlements; and
  • Limited training and professional opportunities.

The Applicant also alleged that HR staff failed to respond adequately to her complaints including about bullying.

Background

The Applicant suffered an injury, unrelated to her work, to a finger. The injury required a splint and interfered with her ability to work. She requested light duties, but on her evidence the Senior Nurse refused to provide light duties, commenting that “it was nothing that she couldn’t strap up and get on with it”.

Later, the Senior Nurse told the Applicant she had spoken with HR and a doctor and both agreed she could return on light duties. The Applicant submits she was not, however, shown consideration for her injury at work.

In a meeting requested by the Senior Nurse, after the finger injury:

  • The Senior Nurse demanded personal medical information of a staff colleague who was on sick leave. The Applicant refused to provide it and the Senior Nurse indicated that she had already enquired from Dr [Name] who refused to provide the information. The Senior Nurse made personal and intimate comments about the colleague’s health issues to which the Applicant replied that the Senior Nurse was disgusting;
  • The Senior Nurse responded saying that she had a problem with the Applicant, giving examples about her work including to the effect that “you are nothing but a people pleaser, you’re too patient-focused and take nursing back to the dark ages”. The Applicant was upset following this discussion;

The Applicant submitted there was a refusal by the Senior Nurse to allow her to return until her finger healed and that the Senior Nurse would contact HR and let them know; and asserted that the HR Manager, ignored or dismissed her oral complaint to him of bullying by the Senior Nurse.

Following medical clearance, the Applicant received the following text from the Senior Nurse:

Hi Anne, Good to hear you are finally better. I have employed more staff and the Mater are short currently so in discussion with [the HR Manager] we think that you can commence working there next week. You have any questions regarding this could you, please contact HR thanks [name]”.

The applicant also complained:

  • There were breaches of the Nurses Award in terms lack of notice and consultation regarding the start date of her new position.
  • Having been at the Mater she was then asked to go to another practice at Queen Elizabeth II Hospital (QE2) for 8 to 9 weeks, seemingly to backfill a temporary absence. She submits that these instructions were not given to her by the Senior Nurse but by the head nurse at the Mater practice.
  • She was subject to repeated unreasonable behaviour about timesheets by the Senior Nurse when working at QE2, and further the Senior Nurse followed up from HR about timesheets.
  • The Applicant is very critical of several work practices of the Senior Nurse including describing unsafe medical practices.
  • Submitted that following a conversation in front of a patient, the Senior Nurse criticised the Applicant for being a smoker. The Applicant sought out assistance to talk about this matter. The Applicant says this person apologised to her.

Another doctor, responding to the verbal complaints, praised the Applicant including asking whether he could do anything with respect to her position with the Senior Nurse; he said it was unfair for her not to know where she was working on any given day and requested HR to discuss the situation. This led to a discussion with HR and work location were agreed.

However, the next day the Applicant submitted, unexpectedly, clinical performance concerns were raised with her. She said she told HR that she had never had any clinical issues raised whatsoever prior to this.

The Applicant submitted she was constantly work-shamed by the Senior Nurse in front of patients and staff.

The Commissioner’s considerations

Allegations of assault and conduct designed to threaten or belittle

The Applicant alleged that the Senior Nurse both berated her, and physically grabbed her arm. This was in the context of a request by the Senior Nurse for the Applicant to take her scheduled lunch break. As proceedings progressed the grabbing was described as an assault.

Under cross-examination the Senior Nurse admitted to being hurried and under pressure that day, but not to berating her. She was asked to, and did, re-enact the event as she recalled it, admitting she linked arms and guided the Applicant to the lunchroom.

Whatever word is used to describe the incident, it is common ground that the Senior Nurse touched the Applicant.

The Commissioner finding:

“I prefer the Senior Nurse’s version of this event. The Applicant seems to me to overstate what happened, exemplified by the change in language from grabbing to assaulting. I add that an assault does not necessarily constitute bullying for the purposes of the Act and that the Commission does not need to inquire into the lawfulness of allegedly bullying conduct”.

Verbal abuse

The Applicant asserted she was verbally abused in the meeting in the Angio Room and that one subject of the meeting was an inappropriate enquiry about personal medical information of a colleague. She denied performance issues were discussed at the meeting. The Senior Nurse agreed she requested to meet with the Applicant; submitted the meeting was about performance; admitted the meeting did not go well; and that the colleague was mentioned towards to end of the meeting. She asserted the meeting took place before the Applicant’s finger injury.

The Applicant described this meeting as a turning point in the relationship between her and the Senior Nurse. Up until then the Applicant in the Senior Nurse had a good relationship.

The Commissioner finding:

  • Performance issues were raised with the Applicant at the meeting and were not welcomed by the Applicant;
  • She was upset at these issues being raised and the wording used by the Senior Nurse, at least towards the end of the meeting, and relayed this concern to [a doctor];
  • Issues about the other nurse were raised at the meeting, but the evidence does not establish clearly what was discussed except that enquiries had also been made of [another doctor] by the Senior Nurse; and
  • That aspect of the conversation was not mentioned to [the doctor].

“I conclude on balance that the meeting was primarily about performance, raised in an informal setting. In the circumstances, despite the upset, the poorly chosen language, and other content, the discussion was reasonable management action”. [My emphasis].

Was the reasonable management action conducted in a reasonable way?

According to the Commissioner:

This performance meeting was clearly not best practice. It is impossible on the evidence to know exactly what was said or even when it took place. At the least, and accepting the comments about work focus, providing tea and coffee, and taking the nursing back into the dark ages, what was said could have been better put. It was not a preferable course of action in raising performance and conduct issues.

“The task of this Commission is to objectively assess what happened, and whether it was done reasonably, not whether it could have been done more reasonably or differently. There were valid management concerns motivating the conversation. They appear to have been ventilated in a suboptimal way, but that does not mean the management action was unreasonable”. [My emphasis].

Concluding that:

“…while this meeting was not conducted in the best possible way, it raised performance issues that were appropriate to be raised in the circumstances”.

Conduct after the performance meeting

The Senior Nurse admitted that, given the Applicant was upset after the meeting, she did “give her some space”. She denied, however, not acknowledging her.

The smoking allegation

The Applicant complained of being humiliated in front of patients about being a smoker. The humiliation was denied by the Senior Nurse. She called a witness who had no recollection of the conversation.

HR in the firing line (again)

The lack of communication by HR and their role should have been elevated at this point to assist the Applicant as she was required to move to various locations. The Commissioner finding:

“I conclude in this regard that the support given was inadequate”.

And further down the decision, the commissioner notes (in relation to light duties):

“I have concluded by this stage, any failure to offer light duties was a failure of HR to properly support the Applicant and could not amount to bullying by the Senior Nurse who had properly referred management of the Applicant’s injury to HR.

This is because…both the Applicant and the Senior Nurse agree that it was necessary for the matter to go to HR: The Applicant replied to the Senior Nurse suggestion of referral to HR as ‘presumptuous but necessary’.

The referral to HR of an employee whose continuing work required special measures certainly seems appropriate

Unfortunately, HR did not take adequate steps to ensure light duties. There was no evidence of a plan for injury management for this employee or of workplans for the various locations she was required to work in. Unsurprisingly, she declares with hindsight she should have taken time off for her finger to heal properly”. [My emphasis].

The Applicant asserted a refusal to provide light duties consistent with medical requirements; lack of consultation about her relocation to the other workplaces; limited or no response to concerns about the changes to location and potentially different work to be done at the new locations; and complaints of being ignored or dismissed by HR. The Commissioner:

“I conclude [the employer] X-Ray’s HR could have done more to ensure that the Applicant had duties consistent with her medical requirements. HR should have consulted the Applicant about her work locations and responded to her concerns about proposed relocation; and further, reasons for the relocation should have been provided to the Applicant.

Similarly, her likely complaints on bullying to the HR Manager and HR more generally should have been followed up.

It may have been that this significant failure by HR to assist the Applicant potentially reached the required level of unreasonableness in the bullying application. However, no such claim has been brought by the Applicant against any persons from HR.

Relocation was an option open, but the necessary support around that relocation should have been provided by HR and was not.

In these tasks, HR fell well short of what was required. But it is not bullying within the meaning of the Act and this application”. [My emphasis]

Corporations cannot bully

The Commissioner adding:

“…in anti-bullying matters allegations must concern the conduct of a natural persons: the legislation does not suggest for example that bullying at work can be engaged in by a corporation.

“I therefore conclude that the Applicant’s claim that the Senior Nurse bullied her in regard to provision of light duties is not established”.

The outcome: was there bullying?

The Commissioner deciding:

  • I am satisfied that the Applicant genuinely believes she has been bullied at work. However, those beliefs must be reasonable in the sense that they are able to be supported or justified on an objective basis by evidence.
  • It is difficult to reach firm conclusions about certain aspects of the evidence: the Applicant and Senior Nurse have divergent versions of key events. Perhaps recall was coloured by animus and hurt, and an understandable desire to present their cases well. However, neither the Applicant nor the Senior Nurse was a compelling witness, each with inconsistent testimony or witnesses who disagreed with their propositions.
  • Regardless, there is enough before the Commission to draw conclusions about the matters necessary to be determined: the elements of bullying, the statutory pre-requisites to an order, and material to inform exercise of discretion.
  • The Applicant must show that there has been repeated unreasonable conduct by the Senior Nurse towards her, where that behaviour creates a risk to health and safety. The evidence does not support the conclusions on an objective basis. The Application therefore must fail.

In finding that there was no breach of the bullying provision of the FW Act, the Commissioner found it necessary to comment further that:

  • But even if the evidence had supported a conclusion of bullying, this is a case where I would not exercise my discretion to make an order as requested.
  • Once the Application was filed, the Employer undertook an investigation. While the investigation itself was of limited value it did find some practices that require improvement.
  • Further, before the hearing, the Employer made an offer of return to employment. This offer can be taken into consideration…for assessing the risk that the worker will continue to be bullied at work.
  • It is clear from this offer that the Applicant remains a valued member of the Employer.
  • The offer is for the Applicant to return to work at the newly acquired practice in a way that would remove any need for the Applicant to have contact with the Senior Nurse.

Sharp language

The Commissioner made an observation on the Senior Nurses language style:

  • The language of the Senior Nurse, at least once in the hearing, was unnecessarily sharp. While I have not made any orders pursuant to this Application, there is evidence of interactions between the two employees that falls short of what should be expected of a supervisor and subordinate.
  • Further training in communicating respectfully and maintaining appropriate boundaries would be appropriate for the Senior Nurse, and I recommend accordingly.

Performance management not bullying

The Commissioner advising that:

  • The Applicant raised concerns about potential bullying at other workplaces by other persons. As indicated during the hearing, a senior person raising concerns about the Applicant’s performance is not of itself bullying even if it is difficult for the Applicant to accept. It seems objectively she may need guidance and counselling in terms of her performance wherever she returns to work.
  • Should the Applicant reasonably form the view that she is experiencing bullying at a different workplace, she is entitled to raise that appropriately whether with a supervisor, HR, senior management or by fresh application to the Commission. For the sake of clarity, on the material before the Commission, nothing suggests the Applicant is likely to be bullied at the proposed workplace.

And on a “contrite” HR

The Commissioner implying that HR had improved its practices:

  • Indeed, the careful proposal detailed in the supplementary statement of the HR advisor, and who now has a clear understanding of the challenges facing the Applicant, in my view provides extra protection for her.
  • In this regard the Commissioner noted the following final dot point in the proposal:

I will oversee and monitor the situation to ensure there is no need for [the Applicant] to have contact with the [the Senior Nurse]. This will be made easier because of the fact that the Mater Hospital Brisbane is close to our head office where I am located.”

  • Adding an observation. It is clear from the HR Advisor’s evidence that a significant review of HR has occurred. This matter shows the difficulties faced by employees such as the Applicant when HR is not appropriately and actively involved in matters such as return to work and supporting them generally.
  • While the Applicant has not established her bullying claim, she has exposed severe limitations in the role that HR provided at this company at the relevant time. It would be expected that going forward HR can properly support its employees whether in return to work or relocation.

Introduction

For those of you who have been following my reports for some time, would know that the “Anti-Bullying” provision under the Fair Work Act are as useful as an ashtray on a motorbike. The no-win, no-fee lawyers cannot monetise this provision, so bullying applications rarely get to a full arbitration. This is because the only outcome (as should unfair dismissals) is for the Fair Work Commission to issue a “Stop Bullying Order”.

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Full decision here.

Background

The applicant is a park ranger with the respondent. Over a period, the relationship with her Team Leader has descended to a point of purported unhealthy tension. In the eyes of the applicant, the relationship is punctuated by incidents of condescension, disparaging remark or action, name calling, the assignment of meaningless tasks, and aggression. Similarly, the tram leader is aggrieved by the conduct of the applicant and whilst she lodged a complaint with her employer, her preference was to leave it at that.

Following the anti-bullying application, the employer engaged independent consultants to investigate the allegations. The applicant was not happy with the investigation process. In any event, the investigation concluded that no bullying had occurred.

The CEO decided to change the reporting relationship to assist the applicant.

According to Her Honour, the CEO presented as a rational and empathetic CEO, with a good measure of pragmatism. He explained that the employer owned, and, together with the Department of Biodiversity, Conservation and Attractions, co-managed a national park, comprising 4,913 hectares of land. It employed a team of rangers known as Land and Sea Unit, who together fulfilled the employer’s work in managing country, land and sea, including culturally significant sites. With candour, the applicant traversed the workplace cultural problems he considered existed with the employer, noting that at the time of hearing the employer was in the process of engaging a legal firm to come in and provide a strategic overview with a view to fixing the culture in the organisation.

HR Nightmare

There an old saying “if you want to lose a friend, give them a job”. This is the direct opposite of “merit-based” hiring. Giving jobs on basis of the people may be related or are friends is a recipe for problems. Cultural issues aside, this is the basis of this claim, which cites some seven incidents that the applicant used as proof of bullying.

In this case, Her Honour was compelled to explain the role of each person involved as follows:

  • The applicant is related to three Board members and is a friend with another Board member.
  • The named person; related to one Board member.
  • The applicant’s mother and cousin of the team leader.
  • The uncle of a Board member who was alleged to have sexually harassed the applicant.
  • A Board member who was friends with the applicant and whose son worked for the employer and made a complaint against the team leader for breach of confidentiality when disciplined in relation to his performance.
  • The applicant’s sister.
  • And a further five individuals who are employed with the employer (who presumably are not described as friends or family).

Given the employer only employed some eight people, this case consumed the time of the entire organisation.

The applicant

The applicant was represented at the hearing, as it was submitted, she was diagnosed as having a learning disability in the areas of reading, writing and comprehension in her early years of education. For the whole of her secondary education, her mother stated that the applicant was placed in an Exclusive Learning Unit, which was separate from the mainstream classroom. Her mother submitted that the applicant would become confused when asked questions but was better placed to answer questions when posed by people that she trusted, as this would reduce her anxiety.

The independent investigator commenting:

“[The applicant] is quite a timid individual who takes offence to things most people wouldn’t. Ms Hicks is very young and fragile”.

Her Honour:

“I was left in no doubt that [the applicant] was competent to give evidence and understood the oath she took, notwithstanding her learning difficulties”.

Steps the employer is taking to address the workplace culture

At hearing the CEO was asked whether the employer had any plans to do anything around human resources and culture. The CEO gave the following evidence:

“We’ve – we’ve had a number of meetings, I think, where we’ve had employees who will come and do a presentation on – on the expectations surrounding bulling and what is – what is constituted as bullying and – and, you know, what is not acceptable and acceptable behaviours in the workplace.

“Yes, we – we are in the process of engaging a legal firm…to come in and provide that strategic overview around trying to fix, I think, the culture in the organisation and – and sort of bring all of the policies and procedures into something that I see as beneficial for the organisation, you know, in its long-term future.

What is it that you want fixed?—

“I – the behaviours in the organisation, I think, I want fixed, from the very top, I think, where there’s – there’s no clarity around what is reasonable expectation or behaviour expectations of staff within the workplace. This is from my – from my brief – I wouldn’t say brief, from my observations over the last 18 months, I think. It’s something that I believe has been a cultural insertion of, I think, bad behaviour that’s been allowed to fester and – and continue to fester and – and management not having or not being able to – to – to adequately – do deal with it in a timely fashion that I think is considered to be, you know, what is expected of, you know, organisations that are – that are, you know, maturer than – than, you know, [the employer]”.

Findings

The Deputy President examined the seven instances that we alleged to be bullying behaviour, finding:

  1. The disparaging (and fruitful language) used by a Board member at the Christmas party were not directed at the applicant, but another person.

“[The applicant] herself confirmed ‘I – I wasn’t really sure who she was talking about, but it wasn’t appropriate for a work environment’. Based on the evidence before me, I cannot find that the alleged behaviour as outlined by [the applicant] occurred, and if I am wrong and it did occur, it does not form part of the behaviour of being ‘bullied at work’. [My emphasis].

  1. The aforementioned Board member stated that the circumstances of Incident 2 did not occur, with the exception that she noted that she had laughed with a group of tourists but that such laughter was not directed to the applicant. Further, the Board member denies calling the applicant a ‘stupid dumb c**t’.

“From the accounts provided, I am unable to find that [the Board member] was laughing at [the applicant], was making fun of [the applicant], or that, if any disparaging language was used, it was so directed toward her. [The applicant], has submitted that [the Board member’s] to the allegation is an attempt to discredit [the applicant], in order to hide her own discrepancies of repeated unreasonable conduct toward [the applicant], however, I do not accept that submission. Specifics of such discrepancies were not detailed, and [the Board member’s] evidence in this respect was seemingly unchallenged”.

  1. The applicant accused the Board member deliberately pushed her with force into a male ranger and laughed loudly, whilst setting up a photo shoot. Her Honour:

“[The Board member] gave evidence to the investigator that she did not recall pushing [the applicant] into another male ranger. At hearing, [the Board member] revealed that she was coordinating the setup of the photo with another person, and a timer was utilised on her mobile to obtain the shot. [The Board member] explained that ‘we just all bunched in together where we were comfortable, and we took the photo’.

“However, and regrettably, no other witnesses were called to corroborate that [incident], therefore making it difficult to discern the events that occurred”.

  1. The DP finding that the Board member stuck up her ‘rude’ finger at the applicant, however the context was such that the gesture was not directed only to the applicant. While the applicant stated that the Board member would regularly single her out and make the gesture (in addition to stating ‘f**k you’), she would do this to other workers as well. The DP finding:

“The making of the rude finger at colleagues and telling those same colleagues to ‘f**k off’ (should the swearing have occurred) was improper conduct. However, it cannot be said that the [Board member’s] conduct was directed toward the applicant, or was such – given the context, that it was victimising, humiliating, intimidating or threatening. Further, it now having desisted, there is not the requisite risk to health and safety.

“In the circumstances, it cannot be concluded that [the Board member’s] behaviour formed part of the behaviours constituting being bullied at work.

  1. The applicant’s account regarding Incident 5 was that the Board member had stated ‘I hate lying c**ts’, and ‘some c**ts don’t pay rent’. The applicant was sitting in the back of the car, whilst the Board member was having a conversation with a lady called ‘Diana’ in the front of the car. There was no evidence given that applicant was referenced in the conversation. The DP:

“Objectively speaking, it is difficult to arrive at a conclusion that there is or was a rational basis for holding the belief, or feelings, that [the applicant] had. Based on the evidence before me, it is not open to conclude on balance, that [the comments were directed] toward [the applicant] – and as such the case is not made out that this conduct formed part of what otherwise would be considered being bullied in the workplace.

  1. With regard to Incident 6, the DP was “I am of no doubt” a discussion ensued between the applicant and the Board member in effect to “tell her mates not to leave their rubbish” and this was said in front of others. Following an ensuing argument, the applicant requested an apology because she considered that the Board member had spoken about her family in a disrespectful manner. The Board member did not apologise.

The DP, in this instance went to Katherine (Kate) Burbeck v Alice Springs Town Council; Georgina Davison; Skye Price; Clare Fisher the Commissioner observed:

“However, not all arguments or occasions of loud or raised voices can or should be characterised as breaches of codes of conduct and the like. They may simply be arguments. To consider all arguments, loud or raised voices as breaches of codes of conduct and the like would be to import standards of conduct into workplaces that simply are not the standards to be expected of citizens in other parts of their lives. Much depends on the context of what happened”.

And:

“The Full Bench in Sharon Bowker; Annette Coombe; Stephen Zwarts v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The Victorian Branch and Others concluded that the concept of being ‘at work’ encompasses both the performance of work (at any time or location) and when the worker is engaged in some other activity which is authorised or permitted by their employer.

“…I am content to conclude [the applicant was ‘at work’ when Incident 7 occurred. However, I again reiterate that whilst I have found there to have been an argument between the two, it is not the case that the conduct amounted to being bullied at work”.

Concluding

In dismissing the application, the DP concluded:

“With regard to the following conduct that is purported to constitute bullying within the workplace…, I have formed the view that there is an insufficient evidentiary basis for finding that such conduct occurred”.

And later:

“That does not, in accordance with the principles I have earlier stated, mean that the relevant conduct was in all respects entirely beyond criticism or constituted behaviours that were appropriate and acceptable in a workplace. The shortcomings of that conduct have in the course of my reasoning been identified in this respect. However, from an evidential perspective what was alleged did not reach the required level to persuade, on balance, that the conduct occurred, and/or the conduct was unreasonable”.

Commentary

When working with friends and family, is always a fine line between the professional and the personal. Having said this, what an interesting place to work – if you can tolerate opinionated foul language.