Paula Taylor. (AB2018/558).  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.
- 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
- 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”.
“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”.
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.