Hammon v Metricon Homes Pty Ltd T/A Metricon Homes and others. (AB2015/225) [2015] FWC 5565. ROE, C. 14 AUGUST 2015.

In this decision, the commissioner made a number of statements covering a wide range of subject matter, including training, pay increases and OH&S. The decision also makes a number of observations in relation to some behaviour. For this reason I have reproduced in the main issues of the decision, highlighting in bold (what I found) to be the interesting “bits”.

The Applicant a Mr Hammon had worked for the Respondent, Metricon since 2009, and during that time he became increasingly disenchanted with his alleged treatment, which he believed to be discriminatory and of a bullying nature.

The Commissioner found the Applicant to:

“…be a sincere witness. I have no doubt that he tried to tell the truth. I also have no doubt that Mr Hammon has a very deep sense of injustice and hurt about his treatment by Metricon…However, perhaps in part because of his distress, I am satisfied that Mr Hammon does not have a clear and accurate memory of events. The failure to present his material in clear and chronological order is in my view illustrative of Mr Hammon’s confusion. I am satisfied that Mr Hammon had a tendency to reach sweeping and general conclusions from isolated events. He calls upon totally unrelated events from a different time period to support his conclusions or assertions about a particular event. Mr Hammon was also quick to draw conclusions about the motivation of Mr Brand and others.

“I am satisfied that Mr Hammon made some statements without proper evidence. For example he said in his statement that “Matt and Ross do not care about safety.” I accept the evidence of Mr Brand and Mr Grant that they both care a great deal about safety and seek to implement Metricon’s policies and procedures in respect to safety to the best of their ability. Mr Hammon accused Mr Brand of being “corrupt and a bully”. Mr Grant quite correctly responded to this by observing that it was slanderous. Mr Hammon produced no evidence to support an allegation that Mr Brand is corrupt.

“I am satisfied that Mr Hammon is suffering from Adjustment Disorder which was not present prior to 2011 and which directly relates to his experiences at work. I base my conclusions on observing Mr Hammon in the witness box and reading his submissions and also on the report of his treating psychologist dated 30 June 2015. I am therefore satisfied that the work place behaviour complained of by Mr Hammon created a risk to health and safety. That risk continues.”

Having effectively discredited the Applicant, the Commissioner dealt with his complaints, which included:

Discrimination in respect to pay:

“The decisions about pay increases for employees are determined through a complex process involving a number of people. Mr Brand’s assessment of Mr Hammon’s performance was one input into the process…However, I am satisfied from the history of increases and bonuses that there is no basis to conclude that Metricon or any of its managers engaged in unreasonable behaviour in respect to Mr Hammon’s rate of pay.”

“…Metricon’s pay review system for site managers is totally at the discretion of management. It is not regulated by award or collective agreement. The fact that increases may differ from expectations in both timing and quantum is entirely to be expected and I am satisfied that Mr Hammon’s experience would have been shared by many other employees.”

Inadequate training and alleged incidents which occurred during the training period:

“Mr Hammon says that on occasion he was told to sit in the corner and watch…I am satisfied that even if this did occur it could not be unreasonable action given that observing others work is an established part of a training or learning process. Mr Hammon says that each of the 5 site managers, one at a time, sat with Mr Brand while he criticised their work in front of the group. If this is true it might not have been an ideal training practice but it does not suggest differential treatment of Mr Hammon.

Mr Hammon says that in the first week of work he was sent to a site to discuss a possible ordering error with a painter. The painter became angry and abusive. He later heard Mr Brand talking and laughing about this in the office. Mr Hammon believes that he was set up to be abused…I consider it most unlikely that the confrontation was a set up. I am satisfied that being sent to a site to discuss the ordering error with the painter was a reasonable part of training and development.

Mr Hammon says that an offensive photo of a dwarf with his name written on the photo was displayed on the wall in the office…[as part of] a look alike board [which] contained humorous pictures of all staff members in the office…I am satisfied that the board was inappropriate and that Mr Brand as the relevant manager should have stopped it…Failure to act can be unreasonable behaviour. However, I am not satisfied that the board was directed at Mr Hammon.

Mr Hammon says that he was called a lackey by Matt Fennessy and told to clean sites by hand and do material deliveries. It is a normal part of any training program for employees to learn a range of duties. However, the use of the term lackey…would be inappropriate.

“Mr Hammon says that he was left waiting by Mr Hennessy for long periods of the day without instruction and Mr Hammon told Mr Brand that he was not receiving relevant training. A person in training is not always in the best position to judge the appropriateness of the training program as they don’t know what it is that they need to learn. It is obvious that Mr Hammon was given responsibility to manage sites after a relatively short period of time. There is no basis to conclude that the training provided was unreasonable behaviour.

Mr Hammon says that the building coordinator was constantly abusing him and was rude to him in front of Mr Duncan…Ms Logan was annoyed at Mr Hammon’s delays in completing paperwork. Mr Brand says that Mr Hammon conceded that he had been slow in responding to Ms Logan’s requests. I accept this evidence. I also have no reason to doubt Mr Hammon’s statement that Ms Logan was rude to him. However, I accept Mr Brand’s evidence that the situation was resolved and did not continue.

Mr Hammon…[was] required to work an excessive number of sites and this affected his performance results and his salary increase. I accept the evidence from Metricon which demonstrated that all site managers were faced with an additional work load and that Mr Hammon’s workload was not exceptional compared to others.

Mr Hammon says that there is a competitive environment created between site managers through the publication of individual and team performance against many performance indicators. Metricon denies that a competitive environment is created. Having considered the evidence as a whole I am satisfied that there is a real basis to Mr Hammon’s concerns..I am satisfied that whether intended or not the publication of performance data and the linkage between this and salary rewards and other recognition inevitably creates competition and considerable risks and pressures for some employees. It is of course reasonable management action to introduce a reporting and performance system. However, I have some doubts that this was carried out in a reasonable manner in the case of Mr Hammon. There was insufficient evidence to reach a firm conclusion.

The response of Metricon to Mr Hammon’s bullying allegations:

“I am satisfied that the failure to clearly investigate and respond to the allegations in a timely manner contributed to Mr Hammon’s stress…I am satisfied that Metricon thought that it had addressed the particular issues raised by Mr Hammon. As in these proceedings Mr Hammon made sweeping statements which were not always in a chronological order. The actions of Metricon in trying to particularise matters and focus on resolving the issues were understandable…Once Metricon became aware of Mr Hammon’s bullying complaint to the Fair Work Commission they offered to undertake an independent investigation of the matters raised. Given all these circumstances I am not satisfied that the failure to investigate and respond was unreasonable management action.”

The alleged abuse by managers at the end of year function:

“…at a work function a site manager did ask Mr Hammon for an arm wrestle. Mr Hammon raised this matter with Mr Cooper in January 2015. Mr Cooper investigated and confirmed that the incident did occur. He asked Mr Hammon if he wanted to put in a complaint and Mr Hammon said no. I am satisfied that the behaviour was inappropriate and that Metricon should have taken the matter further. It should not have been up to Mr Hammon to make a formal complaint. Mr Cooper’s actions in requiring a formal complaint were inappropriate.

Early the following day…[Hammon’s] sites [were] closed…due to alleged safety breaches…Mr Hammon was suspended pending an investigation. Mr Hammon provided written responses to the allegations as part of the investigation…A first and final warning was issued. I am not satisfied that the actions of closing the sites, conducting the investigation or issuing the warning involved unreasonable actions by Metricon…

Conclusion in respect to bullying:

“…[A] number of incidents of unreasonable behaviour directed at Mr Hammon did occur. Those incidents were:

  • Mr Fennessey’s actions in calling Mr Hammon a lackey.
  • The failure of Mr Brand to act to remove the look alike board.
  • Mr Grant’s actions in sending the email about stopping Mr Hammon’s pay.
  • The arm wrestle incident…and the failure of management to pursue this matter after finding it was substantiated.

“Considering the four substantiated matters as whole I am not, on balance, satisfied that the test of ‘repeated unreasonable behaviour while at work’ is met.

“I therefore cannot make orders in this matter. However, I have pointed in this decision to some short comings in Metricon’s practices. I hope they will be addressed. I also recommend that Mr Hammon and Metricon meet to seek to resolve outstanding issues.”

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

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