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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”.

This article is part of a regular newsletter. If you wish to receive the newsletter providing information on the latest employee relations news and trends click here and use the “contact us” tab.

My business grows by referrals. I would appreciate it if you would pass my details on to your colleagues, clients or associates who could benefit from my skill set. Defending/Preventing unfair dismissals, policies and procedures, contracts of employment, codes of conduct and more…

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”.

https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc5413.htm

Question: what do you do with a self-confessed “strong-willed person” who firstly files for a adverse/protected action whilst at work; then a workers compensation for the denial of a leave application for one day’s public holiday; and then makes an application for a stop bullying order – all of which are rejected.

Answer: Go along for the ride, because logic is in no evidence here.

Oh, and in rejecting the Bullying claim, Deputy President Lake states in this decision that if the applicant feels that she has been discriminated against, there are other avenues for her to pursue…and I bet she will.

On a positive note, at the end of this article, I have added the legal and considerations that relate to reasonable management action.

Background

The applicant in this “stop bullying” application had earlier (unsuccessfully) made application alleging contraventions to the general protections provisions under the Act not involving dismissal during the course of her employment. The Applicant considered her circumstances and ultimately lodged the present application largely in the same terms as those contained within her general protections application.

Whilst the applicants name does not appear in the decision, the respondent is clearly identified. In line with my editorial (self-imposed) rules, I will not identify the respondent.

The Applicant was employed as a cleaner at a shopping centre on or about 24 September 2018.

The Applicant submitted that from early on in her employment she raised a number of concerns with management regarding health and safety concerns, raised complaints that she and other staff were not receiving sufficient training and that she was feeling belittled and intimidated by another colleague.

The Applicant then submitted that from the period commencing 11 December 2018 to 17 February 2019 (Applicant’s last day at work) she was bullied at work and provided a number of incidents which she alleges took place to support her claim.

It is generally agreed between the parties that the Applicant raised a number of concerns verbally with [the respondent] about her employment, including about the performance and conduct of other staff.

Deputy President Lake (His Honour) commenting:

“The fact that these concerns were not subsequently escalated in writing or followed up by the Applicant with the Employer indicates to me that the Applicant, whilst disappointed with certain matters in the workplace originally, did not elect to document these matters or formalise them. I have concluded from this that they were largely, if not all, addressed in the conversation had between the Applicant and Ms D. In any event, the concerns were dealt with consistently with how they were raised by the Applicant with Ms D., that is, verbally. There is no positive obligation on managers or employer more broadly to formalise every discussion that employees have with them. To impose such an obligation is unnecessary and may actually preclude a successful resolution from being achieved”. [My emphasis].

On 13 December 2018, the Applicant alleged that she was excluded from joining a Christmas lunch due to a heavy workload on this day. On the evidence before me, I cannot conclude that the Employer took unreasonable action against the Applicant by requesting that the Applicant take a break later that day, thereby missing the lunch. On certain occasions, circumstances and rosters will change in workplaces consistent with workload allocation requirements. This incident appears isolated and not systemic. I am satisfied that this conduct does not satisfy the statutory requirements so as to say that the Applicant was bullied at work.

On 13 December 2018, the respondent received an email from a colleague of the Applicant complaining about the Applicant’s conduct/behaviour. The allegations in this complaint were not substantiated by the complainant and, as such, no action was taken by the respondent in relation to this complaint. His Honour stating, “This event has no probative value with respect to this application”.

On 30 December 2018 the Applicant submitted that she applied for leave and that this leave was rejected by her supervisor, stating that she was also required to work the public holidays.

“Whether this amounted to ‘bullying’ conduct…is not able to be determined on the evidence before me, especially when, in any event, the Applicant followed up on her confusion seeking clarification from [the respondent] regarding the company’s policy on taking leave on public holidays and [the respondent] responded to the Applicant clarifying this policy. At its highest at the time, the Applicant indicated confusion and sought clarification from Fair Work and [the respondent]”.

And:

“… Whilst the argument could be raised that the Employer communicated and handled the situation ineptly, it does not suggest the conduct exposed amounted to bullying…”

Moving duties

The respondent removed the Applicant from her assigned area and requested she work elsewhere in the mall. His Honour:

“On the evidence received, I cannot make any other determination that this request was anything other than reasonable management action and cannot constitute bullying in accordance with the Act”.

On 11 January 2019, the respondent received an email complaint from an employee who worked with the applicant. The crux of the written complaint against the Applicant pertained to a number of employees of the respondent failing to respond to a spillage at the shopping centre site, because the Applicant required assistance to locate and contact her lost children at the shopping complex. As a result of this complaint, the respondent on behalf of the co-worker considered it necessary to detail a Letter of Allegation to the Applicant, setting out its concerns.

The Applicant responded by email:

“Hey sorry to bother you but Im honestly so stressed out with all the dramas and yip today just seriously sent me over , as you know Im a pretty strong willed person , and happy to do anything I removed myself from floor to breathe for a minute, the miss communication is just getting beyond a joke, I was told once I question about with me getting training as I was requested to work on docks on Sunday, to have break at 14.00pm,so training could be given today but I had replied with how will that work as that would only leave [name] on floor for 30mins while Jorge covered [name] break then had his own, [name] said she would send [name] at 14.00pm , 14,10pm came about have always in any job known you don’t leave for break until your reliever is present 14.10pm came over radio had I gone on break my reply was no not yet, when demanded to go now, and I didn’t reply due to me attending to a customer whom Im not going to tell sorry Im on a break, ….. So helped them with there enquiry, when I went to put cloths away and finish doing what I was doing rubbish etc and call break in it was 14.21, to my knowledge I would return to floor at 14.50 but demanded I was back at dock 2 by 14.40, then when I replied with I wasn’t due back till 14.50, so I ended up returning my bag to locker earlier, as [name] said she would now meet me at Dock 4, I checked time it was 14.45pm I got told That [name] will be p*ssed off with me because I didn’t go at 14.00pm, for Break and got ripped into, yes I was upset because this week has been full of dramas with people playing chinese whispers , and hey another person stating [name] is going to be even more p*ssed off with me for not going on break obviously since requesting leave and being now approved Ive been a target breaks never a issue now started to see how a few others have been feeling the last few months I don’t know but have actually felt really belittled in a sense.

“Just feeling really frustrated with all the miss communication, conflicting information, talking behind backs.

Kind Regards…”

[Ed: words fail me…but not the applicant?] [The respondent] spoke to the Applicant about the email “shortly thereafter” and asked whether she wanted to lodge a formal complaint. The Applicant did not want to lodge a formal complaint or take further action; however, the Employer spoke to potential witnesses regarding the Applicant’s concerns. It is noted, despite the concerns of the Applicant, she was provided with sufficient opportunity to respond to her workplace grievances, however refrained from doing so.

In His Honour’s words: “Consequently, the handling of this incident can only portray a favourable picture of the Employer’s management action in this instance”.

On 18 January 2019, the Employer issued the Applicant a Letter of Allegation in relation to her conduct between 8 and 10 January 2019. The Applicant was required to respond by 19 January 2019 and a meeting was convened on 21 January 2019 to further discuss the matters. The allegations that were required to be addressed included as follows:

“1. On Tuesday 8 January 2019 while working in your role at [the shopping centre], it is alleged you have brought your children to work and allowed them to be onsite in the Food Court and various other locations for the entirety of your shift.

  1. Further to Allegation 1 it is also alleged you have been absent from your designated work area for approx. 30 minutes in order to locate your children

  2. On Wednesday 9 January 2019 it is alleged you have brought your children to work and allowed them to be onsite in the Food Court and various other location for the entirety of your shift.

  3. On Thursday 10 January 2019 it is alleged you have brought your children to work and allowed them to be onsite in the Food Court and various other locations for the entirety of your shift.

  4. On Monday 7 January 2019 it is alleged you have taken a 1 hour lunch break instead of the allocated 30-minute lunch break

  5. On Tuesday 8 January 2019 it is alleged you have taken approximately 30 minutes break instead of the allocated 10-minute break”

His Honour finding:

Despite the lack of procedural fairness on behalf of the Employer in allowing the Applicant to respond, on 19 January 2019 the Applicant responded to the Letter of Allegation. The scheduled meeting for 21 January 2019 was adjourned by the Employer in order to review the Applicant’s response to the matters raised in the Letter of Allegation.

And on…and on it goes. So far the employer has to endure first the protected action claim, then this claim of bullying and then:

WorkCover Queensland notified the Employer on 22 February 2019 that the Applicant had lodged a Workers’ Compensation Claim based on an incident that occurred on 1 January 2019, as a result of being denied leave on a public holiday. The Applicant claimed she suffered a psychological injury caused workplace bullying and this resulted in depression. WorkCover Queensland rejected the claim on 19 March 2019.

Based on the evidence led by the Employer, it seems apparent the issue regarding leave on a public holiday was resolved promptly. Whilst the Applicant was initially denied leave , the matter was settled with the Applicant and approved the requested leave.

His Honour:

“It is difficult to reconcile the behaviour of [the respondent] as tantamount to bullying…However, as mentioned, [the respondent] presented the Applicant an opportunity to press a formal workplace complaint against Ms G. in relation to being denied leave and refrained from undertaking such process. Despite the Applicant’s unfortunate psychological state, it would appear the absence of such complaint suggests behaviour of Ms G. cannot be substantiated and would not amount to bullying without contemporaneous evidence”. My emphasis].

In rejecting the application, His Honour concluded:

“…I find that the actions taken by the Employer, that the Applicant alleged to have been bullying conduct, were in fact reasonable management action. As such the qualification of bullying conduct … applies so as to preclude a finding that the Applicant was bullied at work”.

Adding:

“I do note that there are other avenues that may be open to an employee who considers that they have been discriminated against, or subject to adverse action, on various grounds”.

Read on for the Legal Background and considerations

The meaning of a worker being bullied at work is established by s.789FD of the FW Act in the following terms:

789FD When is a worker bullied at work?

(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally-covered business:

(i) an individual; or

(ii) a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.

(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:

(a) the person is:

(i) a constitutional corporation; or

(ii) the Commonwealth; or

(iii) a Commonwealth authority; or

(iv) a body corporate incorporated in a Territory; or

(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;

then the business or undertaking is a constitutionally-covered business.”

For present purposes, there is no contest that the applicant is a worker and that the alleged conduct took place whilst she was at work in a constitutionally-covered business.

The immediate issue to be determined is whether the conduct as alleged by the Applicant is capable of constituting bullying conduct within the meaning of the Act given the objection raised that the behaviour of the employer was reasonable management action taken in a reasonable manner.
This aspect of the definition in s.789FD was discussed in S.B. and the Commission found as follows:

“Having regard to the approach urged by the authorities, the concept of individuals ‘repeatedly behaving’ unreasonably implies the existence of persistent unreasonable behaviour but might refer to a range of behaviours over time. There is no specific number of incidents required for the behaviour to represent ‘repeatedly’ behaving unreasonably (provided there is more than one occurrence), nor does it appear that the same specific behaviour has to be repeated. What is required is repeated unreasonable behaviour by the individual or individuals towards the applicant worker or a group of workers to which the applicant belongs.

An applicant may rely upon conduct that took place prior to the commencement date of the new provisions, to demonstrate bullying conduct.

‘Unreasonable behaviour’ should be considered to be behaviour that a reasonable person, having regard to the circumstances, may consider to be unreasonable. That is, the assessment of the behaviour is an objective test having regard to all the relevant circumstances applying at the time.

The unreasonable behaviour must also create a risk to health and safety. Therefore there must be a causal link between the behaviour and the risk to health and safety. Cases on causation in other contexts suggest that the behaviour does not have to be the only cause of the risk, provided that it was a substantial cause of the risk viewed in a common sense and practical way. This would seem to be equally applicable here.

A risk to health and safety means the possibility of danger to health and safety, and is not confined to actual danger to health and safety. The ordinary meaning of ‘risk’ is exposure to the chance of injury or loss. In the sense used in this provision, the risk must also be real and not simply conceptual.

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 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 refers to management decision 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 qualification.

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.

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.

For the circumstances in s.789FD(2) of the 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.

All of the requirements of s.789FD(1) must be read together. In terms of the issues in dispute in this case, this means that the Commission must consider whether an individual (Ms. D.) has repeatedly behaved unreasonably towards the Applicant whilst the Applicant was at work and whether that behaviour has created a risk to health and safety. A positive finding on each of these elements, and if appropriate, a finding that the circumstances contemplated in s.789FD(2) of the Act do not apply to the behaviour, must be made for the Commission to find that the applicant worker has been bullied at work.

Paula Taylor. (AB2018/558). [2019] FWC 1794. Anderson, DP. 21 March 2019.

Read full decision: https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc1794.htm

As the Stealer’s Wheel refrain: “stuck in the middle with you” so goes the unfortunate employee who was the target of bullying firstly from being new and making people accountable for their spending, and the owners of the company had a very acrimonious marriage split, with the husband giving the applicant a very difficult time as she worked closely with the wife as her role demanded.

Paula Taylor (the “applicant’) made application seeking an order to stop bullying by two respondents: Hoad Water Cartage Pty Ltd and a person named Mr (William) Mark Hoad. The applicant was and remains employed by Hoad Water Cartage Pty Ltd on a part time basis as Finance and Administration Manager and Human Resources Manager.

Mrs Taylor’s application was filed and dealt with by the Commission in the shadow of an acrimonious matrimonial dispute between Mr and Mrs Hoad which remains before the Federal Circuit Court of Australia (the Court). This also includes an application filed two weeks earlier (31 August 2018) by Charmaine Joy Hoad in which Mrs Hoad sought anti-bullying orders against William Mark Hoad (Mrs Hoad’s application). A decision in that matter is reserved.

Mrs Taylor’s application and Mrs Hoad’s application were conciliated concurrently. However, Mrs Taylor matter was referred to arbitration.

The DP summed up the applicant and respondent thus:

 “Mrs Taylor gave her evidence professionally, carefully and largely without gloss or emotion. Her recall was generally undisturbed by the anxiety she was clearly under or the acrimonious circumstances between Mr and Mrs Hoad. She made significant effort to recall precisely and to not overstate her case. I consider her a reliable witness.

 “Mr Hoad gave evidence. Whilst he endeavoured to be of assistance to the Commission in recalling events, his evidence was verbose and at times selective. It carried a certain bravado. Whilst his evidence is not wholly unreliable I treat it with caution”.

 “Mrs Hoad gave evidence with reasonable clarity though her antipathy towards Mr Hoad was readily apparent. I exercise a certain degree of caution in considering whether an unfavourable gloss was imposed on matters pertaining to Mr Hoad’s conduct”.

This is where the confusion sets in:

“Having regard to the evidence and submissions, in the unusual circumstances of this matter, I conclude that neither Mr Hoad nor Mrs Hoad is in a position to claim authority to speak on behalf of the employer. The two sole directors present opposing positions on the application. Whilst a managing director of a company would ordinarily carry authority to speak on behalf of the company as an employer, these are not ordinary circumstances.

Mr Hoad is subject to a Court Order under which Mrs Hoad undertakes a role that includes “human resources”. That same Court Order restrains and injuncts Mr Hoad from “providing any instruction or direction on any matter relating to the duties or terms of employment” of Paula Taylor “save those then exercised”. Nor can Mrs Hoad rely on either her directorship or her “human resources” role to assert the authority of the employer. Whilst a senior officer or owner of a small business with authority to deal with human resources would generally carry authority to speak on behalf of the employer on workplace matters, this would also ordinarily be subject to the say-so of the managing director”.

The bulling complaint seemed to occur from day one when the applicant was employed to oversee the proper workings of the company, that in the past had been run along informal lines. Conflict soon arose with a logistics manager Mr “A” taking exception to Mrs Taylor issuing new polices and requiring administrative accountability by drivers. She was subjected to belittling comments based on gender. She drew this unsatisfactory situation to the attention of Mr and Mrs Hoad recognising that this may be a product of a ‘blokey’ culture inherited from Andy’s Water Transport.

In mid-2016 Mr A left the business. Mr B was appointed Logistics Manager.

  • In mid-2017 a series of conflicts arose between Mrs Taylor and Mr B in which Mrs Taylor believed that Mr B (under Mr Hoad’s influence) was not providing support or respect for her position.
  • She considered Mr Hoad to be overly critical of her work and inconsistent (passive-aggressive) in dealing with her especially in relation to dispatching work.
  • She was reprimanded by Mr Hoad but considered male staff (including Mr B) not similarly reprimanded when mistakes were made.
  • She asked to be taken off dispatching work due to her heightened level of anxiety. She considered Mr Hoad’s conduct and to a lesser extent Mr B’s conduct discrimination and bullying. She was frustrated at not being consulted on all human resources (HR) matters and not having some of her calls answered.
  • She asked Mr Hoad to desist and take action against the bullying behaviour but says that he would reply that she was wasting his time with such complaints or that action would be taken in his time frame, not hers. When she complained, Mr Hoad accused Mrs Taylor of “playing the power thing again”.
  • She experienced resistance from drivers when introducing new procedures (such as reporting forms), when trying to introduce or seek compliance with health and safety protocols, when questioning (for payroll purposes) work sheets and working hours, and increasingly felt usurped in her duties by Mr Hoad and Mr B (including limits placed on her dealing with drivers). She considered there to be a “culture of disrespect for my position”
  • In about November 2017 serious matrimonial conflict boiled over between Mr and Mrs Hoad. This created severe tension and strain in the work environment for all managers including Mrs Taylor. Mr and Mrs Hoad separated. Mr Hoad lived off the property but worked on the property. Mrs Hoad lived and worked on the property.
  • Mrs Taylor worked closely alongside Mrs Hoad who was the Director of Finance and with whom she regularly consulted.
  • Mr Hoad became increasingly critical of Mrs Taylor, including by levelling criticism of her professionalism which she regarded as personal and insulting. Mr Hoad believed that Mrs Taylor was involved in a conspiracy with his wife against him and his business.
  • Upon the marriage breakdown, in-person communication on business matters between Mr Hoad and Mrs Taylor ceased. Each communicated only by telephone or email.
  • Mrs Taylor advised Mr Hoad that she considered his conduct towards her insulting and belittling. She also told him that she felt very uncomfortable about telephone conversations with him in which he would ask questions of her that related to her knowledge (or otherwise) of private matters between he and Mrs Hoad.
  • Mrs Taylor did not attend the workplace and with Mr and Mrs Hoad’s knowledge and consent, she worked from home.
  • [Mr Hoad demanded from that Mrs Taylor send him regular (sometimes daily) lists of tasks she was performing. Mrs Taylor’s evidence was that no other employees were subjected to such demands by Mr Hoad. Mrs Hoad made no such demands of Mrs Taylor. Mrs Taylor says she felt humiliated by such requests which she considered questioned her work ethic.
  • Telephone contact between Mrs Taylor and Mr Hoad ceased. Their contact was by email only.
  • In about April 2018 Mrs Taylor was deeply distressed at the bullying she considered she was subjected to, and the general work environment. She considered it unhealthy and psychologically unsafe. She expressed her distress to Mrs Hoad. Mrs Taylor anonymously contacted Safe Work SA to seek advice. Mrs Hoad then contacted Safe Work SA and requested intervention.
  • Safe Work SA attended the workplace in April 2018. Three separate Improvement Notices under the Work Health and Safety Act 2012 (SA) were issued by Safe Work SA on 24 April 2018 18. The Notices required Hoad Water Cartage to:
    • In consultation with relevant workers, the PCBU must develop and implement a safe system of work to minimise the risk to psychological health at the workplace. Workers are to be provided with instruction and training on the safe system of work that is implemented;
    • Ensure all workers are provided with training in the contents and use of document titled Code of Conduct Policy; and
    • Ensure all workers are provided with training in the contents and use of document titled OHSE 027 Incident Investigation Report.
  • In the wake of the Safe Work SA Improvement Notices, certain policies and training were formalised and job descriptions updated. Mrs Taylor’s job description was as Finance and Administration Manager and as Human Resources Manager.
  • Mrs Taylor’s relationship with Mr B improved (after Mr B took special leave). In his capacity as responsible for occupational health and safety (OHS), Mrs Taylor reported to Mr B on a number of occasions that she considered herself to be subject to bullying by Mr Hoad. No specific remedial action was taken.
  • In mid-2018 Mr Hoad sent a number of emails to Mrs Taylor critical of her work and copied those emails to the accountant (Ms C). Mrs Taylor considered that copying Ms C into belittling emails addressed to her by Mr Hoad was humiliating and demeaning. Mr Hoad also copied some of these emails to his lawyer. Mrs Taylor considered this intimidating conduct.
  • The matrimonial dispute became litigious in early 2018.

Organisational Chart and (matrimonial) court order in conflict

  • In September 2018 Mr Hoad decided that Mrs Taylor was not complying with his instructions and that she should receive a formal warning. The context was that Mrs Taylor considered that under the Organisational Chart she was required to report on finance and administrative matters to Mrs Hoad and that under the Court Order it was Mrs Hoad and not Mr Hoad who could direct her on finance and administration.
  • Conversely, Mr Hoad considered that he had such authority and that disputing his authority was insubordinate on Mrs Taylor’s part. Mr Hoad decided to instruct his lawyers to write and send a letter of warning to Mrs Taylor, which they duly did on 10 September 2018. The letter warned of dismissal “should your behaviour continue”. It concluded: “We confirm that under the organisational chart our client is Managing Director and you are to answer to him.”

 Alarmed at both this escalation as well as the threat of dismissal coming from Mr Hoad’s lawyers, Mrs Taylor considered that the bullying had to be brought to a head. The next day, 11 September 2018, she filed these proceedings.

Current Status

  • On 5 December 2018 Mrs Taylor suffered an anxiety attack in the early hours of the morning and was placed by her doctor on light duties under South Australian (WorkCover) laws.
  • Despite being on light duties, on 21 December 2018 Mr Hoad sent Mrs Taylor approximately 50 emails with attachments requesting her to process reimbursements for his expenses. That afternoon Mrs Taylor was certified by her doctors as unable to work for two weeks.
  • On 4 and 18 January 2019 Mrs Taylor was certified as able to return to work on light duties with reduced hours. Her health and capacity to work was and remains under ongoing medical supervision and assessment by her doctors and WorkCover’s return to work officers.
  • Mrs Taylor continues to be employed as Finance and Administration Manager and as Human Resources Manager albeit on reduced hours (from approximately 30 per week to 15 per week). She has been employed for almost three years.
  • Mrs Taylor continues to communicate with Mr Hoad only by email and works from home.
  • Mrs Taylor says that the alleged bullying is continuing although taking more subtle forms. She claims for example that Mr Hoad is allegedly allowing employees to ignore or not comply with procedures or policies put in place by Mrs Taylor under her responsibilities as human resources manager.
  • Mrs Taylor says that the past and continuing bullying of her has caused and continues to cause anxiety, stress, sleeplessness, headaches and is materially impacting her quality of life.
  • Mrs Taylor fears for her job. She believes that if she defends herself in the workplace then Mr Hoad will consider her subordinate and dismiss her or send her further intimidating letters from his lawyer which will increase her anxiety. She also fears that she will be ostracised or discriminated against for having made a WorkCover claim.

I’m not sure how this was to be fixed, I think I would have left them to it. But this is how the DP dealt with this matter, finding that the company had indeed breached the bullying provision of the FWA and stating in bold print:

“With respect to disciplinary matters, past warnings and termination I will order:

 That, other than Charmaine Joy Hoad, neither William Mark Hoad nor any person acting for William Mark Hoad or operating under his instructions (whether being an external legal practitioner, a manager working in the business or other third party) or acting for the employer is to take any action which:

 a) Disciplines, warns or cautions Paula Louise Taylor with respect to her work performance or conduct; or

  1. b) Terminates the employment of Paula Louise Taylor, threatens to terminate her employment or unreasonably induces her to resign from her employment.

 That warning letters issued by solicitors of William Mark Hoad to Paula Louise Taylor dated 10 September 2018 and 12 November 2018 be removed by Hoad Water Cartage Pty Ltd from her personnel file, be rendered of no effect and be withdrawn.

 That within seven (7) days of the commencement of this Order William Mark Hoad send Paula Louise Taylor under his hand an email informing her that the warning letters of 10 September 2018 and 12 November 2018 have been withdrawn with immediate effect”.

The DP also stated that the “Court Order” has created and continues to create a build-up of tension and uncertainty that has become a fertile ground for bullying conduct” and went on to detail the applicant being pulled in both directions by the husband and wife, stating that “I also take into account that since the Court Order and on more than one occasion Mr Hoad’s directions to Mrs Taylor, even if lawful, were unreasonable and communicated in an unreasonable manner”.

With the DP deciding in this regard:

“…there is no evidence of bullying conduct of Mrs Taylor by Mrs Hoad. An exclusive reporting obligation to Mrs Hoad and a concomitant obligation on Mrs Taylor to exclusively take instruction and direction from Mrs Hoad is reasonable at least as an interim measure and is likely to prevent the risk of future bullying”.

And:

“That, irrespective of whether direction or instruction on such matters is or has been previously provided or authorised, William Mark Hoad neither directly nor through an external agent acting on his behalf further instructs or directs Paula Louise Taylor with respect to the performance of her work duties. This Order does not prevent William Mark Hoad from making reasonable requests of Paula Louise Taylor with respect to her work duties insofar as they concern the operation of the business. Should such a request be received, Paula Louise Taylor may communicate directly with William Mark Hoad or may alternatively refer the request to Charmaine Joy Hoad or respond to the request through the agency of Charmaine Joy Hoad”.

Commentary

 So, in effect, the DP overrode the Federal Court’s decision, setting in place the reporting structure of the business. This is not a good precedent for businesses generally, the DP obviously felt obligated to protect the applicant in the best way manageable under the circumstances.