1
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Ms SB
(AB2014/1035)
COMMISSIONER HAMPTON ADELAIDE, 12 MAY 2014
Application for an FWC order to stop bullying - Manager alleging that employees supervised
were bullying as a result of them making bullying allegations against her and other
unreasonable conduct - alleged lack of management support - whether individuals repeatedly
behaving unreasonably so as to create a risk to health and safety - whether application taken
simply as a response to bullying allegations being made against applicant - role of external
investigation discussed - evidence assessed - some conduct found bordering on unreasonable
but not sufficient to meet the statutory definition - no basis to make an order - application
dismissed.
1. Introduction and background
[1] Ms SB (the applicant) has made an application for an order to stop bullying under
s.789FD of the Fair Work Act 2009 (the FW Act). The application alleges bullying conduct
by another employee, Ms CC, and others who are or were in her workplace. The workplace
concerned is conducted by her employer (the employer).
[2] The application was subject to a hearing, which was conducted in private as permitted
by s.593(3)(a) of the FW Act. Given the nature of the matters considered in this application,
the fact that it relates to ongoing employment relationships and my findings, I have also
“anonymised” the names of the parties and individuals in this decision.1
[3] The applicant represented herself in this matter. The employer and CC were
represented by an employee of a Registered Employer Organisation.2 Given these
circumstances, I provided appropriate assistance and latitude in the presentation of the
applicant’s case; particularly to ensure that there was a common understanding of the issues in
dispute and to ensure that, as far as possible, the disputed matters were raised with relevant
witnesses.3 I also took steps during the examination of witnesses to inform myself about
relevant matters. I must however determine the application based upon evidence that is before
the Commission.
[4] I also note that after the hearing of this matter, all parties sought that the decision be
deferred to permit further private discussions to take place. These proceeded before another
Member of the Commission. The parties in due course requested that I make a determination
of this application.
[2014] FWC 2104
DECISION
E AUSTRALIA FairWork Commission
[2014] FWC 2104
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[5] The applicant commenced employment with the employer as a Delivery Support Team
Leader in mid June 2013 and was in effect the manager of a team of Delivery Support
Officers (DSOs) who were based at one of the two operational locations of the employer;
namely location C and location B.
[6] CC, and the other employee directly cited in the application as having behaved
unreasonably, are or were DSOs in the team reporting to the applicant.
[7] One of the former DSOs, Ms NP, made a bullying complaint against the applicant in
August 2013. An investigation by the employer found the complaint to be unsubstantiated. In
due course, NP was transferred to the other location and has since left employment with the
employer.
[8] CC has denied the allegations of unreasonable conduct and in fact made bullying
allegations against the applicant immediately prior to the lodgement of this application. The
competing allegations were investigated on behalf of the employer in the immediate lead up
to the hearing of this matter. The investigation apparently found that the allegations against
the applicant were justified in part, whereas the complaints by the applicant were not
apparently substantiated. I will return to the impact of those conclusions upon this matter.
[9] The applicant seeks orders from the Commission directed at stopping the alleged
conduct by CC, compliance by the employer and others with the workplace bullying policies
operating at the workplace, and the monitoring of workplace behaviour by the employer.
[10] During the course of this matter, the applicant raised concerns about the actions or
non-actions of her immediate manager (DD) and the conduct of the human resources staff of
the employer (HR). Although not directly cited in the application as individuals whose
conduct was relied upon as bullying behaviour, their alleged conduct set some of the context
for the applicant’s concerns.
[11] The employer has opposed the application on a number of grounds including the
contention that there was an absence of repeated unreasonable conduct and that any conduct
by itself was reasonable management action taken in a reasonable manner.
[12] CC was served with the application and provided with an opportunity to be heard in
the matter. She gave evidence, in effect, as part of the employer’s case.
2. The application
[13] Section 789FC of the FW Act provides as follows:
“789FC Application for an FWC order to stop bullying
(1) A worker who reasonably believes that he or she has been bullied at work may
apply to the FWC for an order under section 789FF.
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(2) For the purposes of this Part, worker has the same meaning as in the Work
Health and Safety Act 2011, but does not include a member of the Defence
Force.
Note: Broadly, for the purposes of the Work Health and Safety Act 2011, a
worker is an individual who performs work in any capacity, including as
an employee, a contractor, a subcontractor, an outworker, an apprentice,
a trainee, a student gaining work experience or a volunteer.
(3) The application must be accompanied by any fee prescribed by the regulations.
(4) The regulations may prescribe:
(a) a fee for making an application to the FWC under this section; and
(b) a method for indexing the fee; and
(c) the circumstances in which all or part of the fee may be waived or
refunded.”
[14] There is no contest that the applicant reasonably believes that she has been bullied at
work4 or that she is a worker as defined.
3. The cases presented
3.1 The applicant
[15] The applicant relies either directly or indirectly upon the following elements of alleged
unreasonable conduct:5
the making (and receipt by management) of two separate complaints of
bullying against her from NP and CC;
the acceptance of those complaints for investigation by the employer;
that following the favourable finding in relation to the complaint from NP, the
employer took no adequate action to prevent similar inappropriate conduct
(ie. further complaint) from being made again;
being the target of ongoing malicious rumours in the workplace without
receiving support from the employer;
being harassed and badgered on a daily basis by CC;
CC documenting the applicant’s conduct; and
being humiliated as a consequence of rumours and gossip because the
employer did not notify employees as to the outcome of the complaints.
[16] The applicant gave evidence in support of her application. She also relied upon
evidence from the following who were, or had been, DSOs from the group managed by the
applicant:6
SB - Operations Administration Officer who is based at location C;
CM - who is based at location C having previously worked at the other
location;
HW - who is based at the location B office but attended meetings at the
location C office; and
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LG - who is based at the location B office but attended meetings at the location
C office.
[17] The applicant contends that NP, CC and some others were not “on board” with the
establishment of the Delivery Support Team and this led to a difficult environment and a
culture where the bullying of her took place.
[18] The applicant accepts that management has in most circumstances a responsibility to
investigate bullying allegations. However, she contends that the allegations made by CC were
unfounded, part of a campaign to bully her as the Manager, and undertaken in concert with
NP. In that context, the applicant contends that management should not have given the
complaints any credence at all.
[19] Amongst other matters, the applicant further contends that CC and NP and others were
spreading rumours in the workplace about her and that she was harassed and badgered on a
daily basis by CC. This also included the contention that CC was taking notes of her
conversations with the applicant.
[20] The applicant also relied upon an alleged failure of the employer to properly
investigate false rumours about an alleged incident associated with a social function and to
notify others that it lacked any foundation.
[21] In terms of the investigation of her own allegations against CC, the applicant does not
rely upon this as an example of bullying conduct in its own right. She does however, have
concerns about how the investigation was conducted, disputes its outcome and relies upon it
as an indication that she is at risk of future bullying. In addition, the applicant considers that
she did not have the opportunity to put forward her complaints when she first sought to
discuss the matter with HR.
[22] Generally, the applicant contends that unless appropriate action is now taken, she will
continue to be bullied at work by CC.
3.2 The employer and CC
[23] The employer opposed the application on a number of grounds including:
CC and the employer had not behaved unreasonably towards the applicant;
There was no evidence of repeated unreasonable behaviour;
There was no evidence of any risks to the applicant’s health and safety;
There was no evidence of a future risk of unreasonable behaviour; and
There was no relevant behaviour to which any order might apply.
[24] The employer relied upon evidence from the following:
DD - Finance and Commercial Manager to whom the applicant reports;
MS - Human Resources Manager who had overall responsibility for the
investigations conducted in relation to the matters associated with this
application;
CJ - Industrial Relations Adviser who conducted the initial investigation into
the allegations made by CC, arranged for an external investigation in relation
[2014] FWC 2104
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to the counter claims of bullying after the making of this application, and had
other dealings with the parties in this matter; and
CC - DSO and the individual named in the application.
[25] The report of the investigation conducted on behalf of the employer, subsequent to the
lodgement of this application, was not provided to the Commission. The employer relied upon
legal professional privilege on the basis that it had been conducted by a legal firm in direct
contemplation of these proceedings. When challenged by the Commission about apparent
reliance upon the outcomes given that position, the employer confirmed that it was not
seeking to rely upon the actual outcomes for present purposes. Rather, it contended that
sufficient information about the scope and nature of the investigation was known from other
witnesses and that this was sufficient to demonstrate how it was conducted.
[26] As outlined earlier, the applicant did not rely upon the post-application investigation
as evidence of bullying conduct in its own right, but did so as support for her proposition that
there was a risk of ongoing bullying conduct; principally on the basis that no action was being
proposed in relation to CC (and others). I also note that potential disciplinary action involving
the applicant has been signalled by the employer.
[27] The employer contends that it was both reasonable and required for it to investigate
the complaints by NP and CC. It did so following appropriate practices, which included
engaging an external resource in the latter investigation.
[28] The employer and CC reject any notion of a conspiracy between CC and NP and
contend that the commonality of some of the complaints was not unusual in the circumstances
and highlight that many of the complaints by CC related to events after NP had left the
workplace.
[29] The employer also contends that the applicant did not raise any concerns about alleged
bullying prior to the bullying complaint being made by CC and that the applicant did not in
fact consider herself to have been bullied prior to that event. Further, it argues that there was
no real evidence of unreasonable conduct upon which the application could be based.
[30] In terms of the approach to definition of bullying conduct in s.789FD, the employer
contends that the concept of an individual(s) “repeatedly behaving unreasonably” required
that the unreasonable conduct must have occurred more than twice.7
3.4 Observations on the witness evidence
[31] I found each of the witnesses generally gave evidence in an honest fashion, albeit that
many of the positions reflected in those statements were based upon second-hand information,
contained generalities rather than details, and involved potentially inflated notions. It was also
evident to me that the statements of many of the witnesses were somewhat subjective and
influenced by their perspectives of the people involved. These latter observations apply in
particular to the applicant, CC and some of the DSOs.
[32] I also note that one of the witnesses for the applicant (CM) was unwilling to provide
details of the incidents apparently summarised in her statement. This is perhaps
understandable given the ongoing working and reporting relationships, however it did mean
that little weight could be given to that evidence on the critical issues.
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[33] Both the applicant and CC sought to rely upon statements that were apparently made
by persons who were either unwilling or unable to attend to give evidence. I did not admit
those statements into evidence and have given them no weight given the potentially
prejudicial import of the statements and the inability to test the veracity of the evidence.
4. What constitutes bullying behaviour under the Act?
[34] Section 789FD of the FW Act provides as follows:
“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.”
[35] There is no contest that the employer is conducting a business or undertaking within
the meaning of the Work Health and Safety Act 2011 (WHS Act) or that it is a constitutionally-
covered business. It is also accepted by all parties in this case that the alleged conduct, if it
occurred, took place whilst the applicant was at work.
[36] As a result, the issues in dispute in this case are whether an individual or group of
individuals have repeatedly behaved unreasonably towards the applicant and whether any
such behaviour has created a risk to health and safety. Depending upon the nature of those
findings, in considering whether there has been repeated unreasonable behaviour, I also need
to consider whether any of the conduct was reasonable management action taken in a
reasonable manner.
[2014] FWC 2104
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[37] As a Full Bench8 recently stated, ascertaining the meaning of the provisions of the Act
necessarily begins with the ordinary and grammatical meaning of the words used.9 The words
must be read in context by reference to the language of the Act as a whole and to the
legislative purpose.10 Section 578(a) of the FW Act also directs attention to the objects of the
FW Act and s.15AA of the Acts Interpretation Act 1901 requires that a construction that
would promote the purpose or object of the FW Act is to be preferred to one that would not
promote that purpose or object. The purpose or object of the FW Act is to be taken into
account even if the meaning of a provision is clear. When the purpose or object is brought
into account an alternative interpretation may become apparent. If one interpretation does not
promote the object or purpose of the FW Act, and another does, the latter interpretation is to
be preferred. Section 15AA requires the Commission to construe the FW Act, not to rewrite
it, in the light of its purpose.11
[38] Further, Mason J affirmed in K & S Lake City Freighters Pty Ltd v Gordon & Gotch
Ltd:12
“Problems of legal interpretation are not solved satisfactorily by ritual incantations
which emphasise the clarity of meaning which words have when viewed in isolation,
divorced from their context. The modern approach to interpretation insists that the
context be considered in the first instance, especially in the case of general words, and
not merely at some later stage when ambiguity might be thought to arise.”13
[39] There are no specific objects applicable only to Part 6-4B of the Act. There are
however, objects in s.3 of the Act that should be taken into account.
[40] The Explanatory Memorandum14 relevantly stated as follows:
“New section 789FD – When is a worker bullied at work?
107. New subsection 789FD(1) provides that a worker is bullied at work if, while the
worker is engaged by a constitutionally-covered business, another individual, or group
of individuals, repeatedly behaves unreasonably towards the worker, and that
behaviour creates a risk to health and safety.
108. This definition reflects the definition of workplace bullying that was
recommended in the Workplace Bullying ―We just want it to stop report. The
Committee considered the existing definitions used by State, Territory and federal
jurisdictions and expert evidence and concluded that there were three criteria that were
most helpful in defining bullying behaviour – the behaviour has to be repeated,
unreasonable and cause a risk to health and safety.
109. The Committee went on to note that ‘repeated behaviour’ refers to the persistent
nature of the behaviour and can refer to a range of behaviours over time and that
‘unreasonable behaviour’ is behaviour that a reasonable person, having regard to the
circumstances may see as unreasonable (in other words it is an objective test). This
would include (but is not limited to) behaviour that is victimising, humiliating,
intimidating or threatening.
110. New subsection 789FD(1) covers bullying behaviours carried out by an
individual or a group of two or more individuals.
[2014] FWC 2104
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111. The Committee also found that balanced against this definition is the need for
managers to be able to manage their staff. New subsection 789FD(2) is included to
clarify that reasonable management action when carried out in a reasonable manner
will not result in a person being ‘bullied at work’.
112. Persons conducting a business or undertaking have rights and obligations to take
appropriate management action and make appropriate management decisions. They
need to be able to make necessary decisions to respond to poor performance or if
necessary take disciplinary action and also effectively direct and control the way work
is carried out. For example, it is reasonable for employers to allocate work and for
managers and supervisors to give fair and constructive feedback on a worker’s
performance. These actions are not considered to be bullying if they are carried out in
a reasonable manner that takes into account the circumstances of the case and do not
leave the individual feeling (for example) victimised or humiliated.”15
[41] 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.
[42] An applicant may rely upon conduct that took place prior to the commencement date
of the new provisions,16 to demonstrate bullying conduct.17
[43] ‘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.
[44] 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.18 This would seem to be equally applicable here.
[45] 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.19 The ordinary meaning of ‘risk’ is
exposure to the chance of injury or loss.20 In the sense used in this provision, the risk must
also be real and not simply conceptual.
[46] Behaviour will not be considered to be bullying conduct if it is reasonable
management action carried out in a reasonable manner.
[47] 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
[2014] FWC 2104
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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.
[48] The Explanatory Memorandum21 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 exclusion.
[49] 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.22
[50] The specific ‘attributes and circumstances’ of the situation including the emotional
state and psychological health of the worker involved may also be relevant.23
[51] 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’.24 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’;25
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.26
[52] 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.
[53] 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.27
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[54] 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 or
group of individuals have repeatedly behaved unreasonably towards the applicant 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 FW Act do not apply to the behaviour, must be made for the Commission to find that the
applicant worker has been bullied at work.
5. The general context for the alleged conduct of CC and others
[55] I will deal with the specific grounds principally relied upon by the applicant shortly,
however it is appropriate to set the context for those matters based upon the evidence before
the Commission.
[56] As a result of a business restructure in March 2013, the DSOs roles and functions were
consolidated into the Delivery Support Team. The team was based in two locations and
although there was not a great deal of employee transfer between the locations, they all
reported to the one manager and performed similar roles. The team would meet at one of the
locations on a reasonably regular basis.
[57] The applicant was appointed in June 2013 to manage the team. The appointment was
on the basis of a six month “probationary period”. One of the challenges for the applicant was
to manage a team which comprised employees who had been drawn from other work groups
and it is likely that some of the employees did not initially embrace that change.
[58] There are differing views about the management style of the applicant from within the
Delivery Support Team and it is likely that NP and CC are amongst a group who do (or did)
not feel comfortable about the applicant or her approach to the relatively new team. Based
upon the evidence before the Commission, these are largely matters of style and manner.
[59] There is another group amongst the DSOs who are very supportive of the applicant as
their manager.
[60] NP made a bullying complaint against the applicant in August 2013. On 15 August
2013, NP spoke inappropriately to the applicant first thing that morning. This exchange
occurred immediately after NP had lodged the complaint against the applicant, but before
management had informed the applicant of that event.
[61] Following an investigation by the employer of NP’s complaint, these allegations were
found to be unsubstantiated. I note that this “finding” does not of itself mean that the
allegations were false or vexatious. Rather, the employer’s HR did not in its view consider
that the alleged conduct represented bullying conduct.
[62] In due course, NP was transferred to the other location and has since left employment
with the employer. This transfer, although not intended as such, was seen by some of the
DSOs who supported the applicant as a reward for NP.
[63] After the complaint by NP had been investigated, there were some discussions with
the applicant about management support and a letter about this issue was apparently provided
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by management. The support proposed involved access to the employer’s Employee
Assistance Program (EAP), mentoring and management training.
[64] Of the two locations at which the DSOs were based, the issues predominately involved
one site; location C. At location C, the applicant’s desk was located as part of an open plan
environment with the DSOs and DD, the applicant’s manager, was also in relative close
proximity. Indeed, after NP was moved, the applicant proposed to move closer to the work
team and this was discussed with DD. This was ultimately reversed when DD advised the
applicant that this was not supported by him.
[65] I find that the applicant’s relationship with DD was generally open and constructive
and the applicant had the opportunity to discuss concerns about CC, and matters more
generally, with her Manager from time to time. Although the applicant raised concerns about
certain aspects of CC’s performance, the issues now relied upon as bullying conduct were not
discussed. The fact that the applicant was on “probation” for most of the time leading up to
the making of this application is a factor, but in my view is not a full explanation for not
doing so.
[66] The concerns about CC that were discussed with DD arose in part from the applicant’s
perception of CC as being a fragile and sensitive person.28
[67] I note also that CC had raised some concerns about the alleged conduct of the
applicant with DD and these were not discussed with the applicant prior to the immediate
events leading to this application. These include CC’s concerns about the applicant moving
her desk closer the work group, and to her in particular. CC did however request that these
concerns remain confidential and not be disclosed to the applicant.
[68] On 6 January 2014, in the course of a discussion with CC, the applicant became aware
that CC was apparently taking notes of the conversation. It is evident that the applicant
became concerned with these events and left the immediate workplace and located herself to
the other work site.
[69] On 7 January 2014, CC made a complaint of bullying against the applicant to HR.
[70] Without knowing that CC had made a bullying complaint, the applicant sought to have
a discussion with HR about CC. At the outset of those discussions, HR advised the applicant
that CC had formally lodged a complaint of bullying against her. The applicant did not then
raise her own bullying allegations with HR but subsequently considered her position and
lodged this application.
[71] I note that CC has been absent from work for long periods after making the bullying
complaint against the applicant. CC has been diagnosed with a range of physical and
psychological symptoms consistent with high distress arising from the workplace.
[72] The applicant has also been subject to a diagnosed medical condition related to these
events and is currently subject to a return to work arrangement as part of an accepted workers
compensation claim. At the time of the hearing, this involved working from home three days
per week however the arrangements involve a graduated return to the workplace depending
upon progress.
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[73] Interim reporting arrangements concerning the Delivery Support Team have been put
in place as a result of the applicant’s absence from the workplace.
[74] The evidence reveals that the applicant is considered to be a capable and competent
worker whose management experience has been valued by the employer.
6. Was the applicant bullied at work?
[75] An overall view of the behaviour and the circumstances is required, however it is
convenient to start with a consideration of the key elements relied upon by the applicant.
[76] The application directly cited only CC as the individual whose behaviour was
unreasonable, however, by implication the conduct of the HR staff and her direct manager has
also been raised in this case. The position in response from the employer has dealt with the
broader issues including these aspects. I therefore leave aside for present purposes whether
the application should have been cast more broadly or an amendment sought.
[77] The application also relied in part upon the alleged conduct of NP and what the
applicant saw as CC’s collaboration with NP.
6.1 The complaints of bullying against the applicant by NP and CC
[78] There are two aspects arising from this element. The receipt and investigation of the
complaints and the making of the allegations themselves.
[79] I accept that the applicant may well have considered the making of the complaints to
be part of a campaign against her and that she was certainly distressed in particular by the
making of the second allegation. However, the receipt of the two complaints by management
and the conduct of investigations in response were not unreasonable. Indeed, that course of
action was the only reasonable and prudent response.
[80] In terms of the making of the allegations themselves, I would accept that the making
of deliberately false or misleading allegations against another worker could be found to be
unreasonable. The allegations made by NP were investigated by the employer and were not
substantiated. This does not necessarily mean that they were false allegations or made
mischievously, and there is very little evidence about them before the Commission.
[81] As to the allegations made by CC, these were also investigated and substantiated in
part. I place no weight on those findings given the absence of evidence as to the basis of the
conclusions reached. I do not however need to determine the substantive merit of those
allegations for present purposes, other than to consider whether the making of the allegations
represents unreasonable behaviour directed towards the applicant.
[82] I have heard direct evidence from the applicant and CC about those allegations. There
is apparently some commonality of allegations with those made earlier by NP, although this is
not of itself insightful given that each was made in relation to the same manager in the context
of the same workplace and alleged conduct. Further, some of the issues raised against the
applicant are very minor. However, I am satisfied that the making of the allegations by CC
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was not of itself unreasonable and there is insufficient evidence to support the notion that
these were made as part of any form of coordinated campaign against the applicant.
6.2 The failure to take appropriate action to support the applicant after the initial
complaint by NP
[83] The applicant was concerned that in light of the findings that the allegations by NP
against her were not substantiated, the employer did not take sufficient steps to support her as
a manager. The support proposed involved access to the organisation’s Employee Assistance
Program (EAP), mentoring and management training.
[84] In particular, the applicant contends that management should have ensured that the
support, with the exception of the EAP, was provided. I note that the applicant already had
access to some professional support and did not seek the EAP service.
[85] In terms of the mentoring and training, it is apparent from the evidence of the
applicant that she did not see the value of that support at the time and communicated this to
management. There was also a period during 2014 when the applicant was unwell and not in
the workplace and it was not unreasonable to delay proceeding with any form of management
training of the nature proposed, in those circumstances.
[86] I note that after the lodgement of this application, the applicant has confirmed that the
management training is being sought and that arrangements were made prior to the hearing of
this application for the training to occur after that time.
[87] I find that HR and DD as the applicant’s manager should have been more proactive in
ensuring that the support was provided to the applicant in the period after the allegations of
NP had been dealt with. However, it was not of itself unreasonable for the employer not to
have insisted that it take place at that time, given her response.
[88] With the benefit of hindsight, all parties would have been better served by proceeding
with the additional training and mentoring when originally proposed.
6.3 Conduct during team meetings
August 2013 team meeting
[89] On 2 August 2013, there was a staff meeting of the DSO team where DD attended for
the first time. During this meeting, NP directed a number of questions to DD about potentially
working from home and related matters. This was perceived by the applicant, and some others
at the meeting, as an attempt to ignore and undermine the applicant. DD stated that the issues
should be raised with her line manager. On balance, I find that this was done, on at least one
occasion, without referring to the applicant by name. In the circumstances, this was
unfortunate, and although not intended, represented a lost opportunity to more fully support
the applicant given the tensions in the working relationship with NP at the time.
[2014] FWC 2104
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September 2013 meeting
[90] In September 2013, the applicant did not attend a team meeting that she arranged and
would normally have attended. The applicant indicated in evidence that she did not attend
because NP would be there. The meeting occurred in the period after the making and rejection
of the bullying compliant by NP, and at a time where NP would apparently avoid some
meetings where the applicant was in attendance.
[91] It is not clear on the evidence whether the applicant informed her manger or the team
that she was not attending. I also note that the applicant attended other team meetings after
this time involving NP.29 In any event, when the applicant did not attend, and after waiting
some time, a number of the participants in the meeting, including CC, made some negative
comments about the applicant as a manager.
December 2013 meeting
[92] In the December 2013 team meeting there was some discussion about annual leave
arrangements and CC raised concerns about whether she was the only employee from the
team working at that time. CC may also have complained about being left off an email, which
if made, was not accurate. There is insufficient evidence to support a finding that the language
or tone used by CC in this exchange was inappropriate or unreasonable.
[93] These events are not in my view significant and fall well below what might be
considered to be unreasonable conduct in the context in which they took place. This includes
the fact the meeting was intended to be a round table discussion where concerns of this nature
might be raised and discussed.
6.4 The spreading of rumours and gossip about the applicant
[94] There is evidence to support the notion that there was a level of discussion in the
workplace about the applicant including her management style. This evidence also leads to an
inference that NP, CC and other DSOs may have been involved, however there is very little
detail or actual evidence upon which more definitive findings can be made. In particular, there
is little or no direct evidence about CC spreading what might be called rumours and
unreasonable commentary about the applicant.
[95] There was an anonymous allegation associated with a work Christmas function. This
was considered by the employer who made some initial inquiries. The applicant was advised
that there was no substance and it would not be taken further. The applicant contends that the
employer should have spoken to at least one particular employee to support her position, more
fully investigated the matter, and made its findings known more broadly.
[96] There is no evidence that the allegation about the applicant’s conduct at the function
had any substance. The decision not to fully investigate the matter in the circumstances was
reasonable. Although the applicant would have preferred a full investigation and a more
fulsome public exoneration, this would have created a focus and further attention upon the
allegation that may well have also been unwelcome.
[2014] FWC 2104
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[97] There is no evidence linking this allegation to CC and only general speculation about
who may have been involved.30 In determining this application, I have however taken account
of the fact that this false rumour may have been deliberately spread to annoy or harm the
applicant.
6.5 The investigation of the applicant’s complaints against CC
[98] The applicant has raised concerns about how her complaints against CC were
investigated. These are not relied upon as evidence of the alleged bullying conduct supporting
the application but rather, as an indication that if bullying behaviour is found by the
Commission, there is a likelihood of future unreasonable conduct.
[99] Although the results of the investigation have been provided to the applicant and the
Commission, the full report and evidence about how the investigation was conducted were
not. The employer relied upon legal professional privilege in that regard. As a result, I place
no weight upon the outcomes of the investigation so far as it might otherwise have cast light
upon the conduct of CC and the applicant. At least in terms of the conduct of CC as relevant
to this present application, I have heard direct evidence from the applicant and CC (and
others) about those matters and I rely upon my direct findings in that regard.
[100] I do however find that the engagement of an external person to investigate both
competing allegations was not unreasonable. There was also nothing unreasonable about the
apparent general approach adopted to the investigation by the legal firm. Nothing the
applicant has put to me would lead me to a contrary finding as to the conduct of the
investigation. The apparent findings of the investigation are however at odds with certain
findings made by me from the evidence in relation to the applicant’s motives and I will return
to the implications of the investigation shortly.
[101] Given the applicant’s position in relation to the external investigation and my ultimate
findings in this matter, it was not necessary for me to consider whether legal professional
privilege applied to that investigation and/or whether the employer had waived any privilege
by seeking to rely to some degree upon its outcome.31
6.6 Other matters
[102] The applicant also referred to various other matters which might be best described as
relating to or arising from the culture within the workplace. These include allegations that CC
spoke rudely or dismissively to the applicant at times. There are some aspects of an unhelpful
culture in the workplace that are evident in the above findings. There is however little direct
or robust evidence of other behaviour that might be described as being unreasonable for
present purposes.
7. Conclusions and orders
[103] There are various matters that are not in dispute in this case including the nature of the
workplace as a constitutionally-covered workplace, the applicant is a worker and any alleged
conduct, if it occurred, took place at work. In that light, the Commission must firstly consider
whether an individual or group of individuals have repeatedly behaved unreasonably towards
the applicant and whether that behaviour has created a risk to health and safety. If appropriate,
[2014] FWC 2104
16
I must also consider whether the circumstances contemplated in s.789FD(2) of the FW Act
apply to the behaviour.
[104] NP and CC are individuals within the contemplation of s.789FD(1),32 and this finding
also extends to the applicant’s Manager, DD, and to the individual persons who have made up
HR in this case.
[105] I accept that the making of vexatious allegations against a worker, spreading rude
and/or inaccurate rumours about an individual, conducting an investigation in a grossly unfair
manner and some of the other allegations made by the applicant are capable of being
considered as unreasonable conduct of the kind contemplated by s.789FD(1). This depends
upon the nature of the actual conduct and the context. I also accept that a manager may be
subject to bullying behaviour by employees who report to them.
[106] However, the evidence about those matters in this case is insufficient to provide a
basis for findings that an individual or group of individuals have repeatedly behaved
unreasonably towards the applicant so as to create a risk to health and safety. In terms of most
of the elements relied upon by the applicant, I am not satisfied that the alleged behaviour
occurred and/or was unreasonable in the context that it occurred. Some of the behaviour as I
have found was bordering upon unreasonable but not such as to fall within the scope of
bullying behaviour as defined by the Act. In particular, I cannot be satisfied, based upon the
evidence before the Commission, that the limited degree of unreasonable behaviour by the
individuals concerned was such that it created a risk to heath and safety.
[107] As a result, I am not satisfied that the applicant has been bullied at work within the
meaning of s.789FD of the FW Act. Consequently, there is no basis to consider the making of
orders and this application must be dismissed. I so order.
[108] Given the ongoing relationships being canvassed in this decision and the particular
features of this application, I consider that it is appropriate to make some additional comments
to assist the parties.
[109] It should be clear that I have not found that the applicant acted vexatiously in bringing
this application. The applicant considered that she had been bullied and although I have not
been persuaded that this took place within the meaning of the FW Act, I do not consider that
the application was made without any foundation. There are also some cultural,
communication and management issues in this workplace that should be addressed by senior
management.
[110] I have also not made findings about the outcomes of the external investigation as they
apply to the allegations made by CC against the applicant. However, I note that there is some
tension between some of my findings and those apparently reached by the external
investigation on other matters that were directly relevant to this application.
[2014] FWC 2104
17
[111] The employer should have regard to the findings and observations made by the
Commission in dealing with the investigation and the members and management of the
Delivery Support Team in the future.
Appearances:
SB, the applicant in person.
D Miller and R Soh of the Australian Industry Group for the employer and CC.
Hearing details:
2014:
Melbourne
April 1.
Further conciliation before Rowe C:
2014
Melbourne
April 22 and concluded by parties on 5 May.
Printed by authority of the Commonwealth Government Printer
Price code C, PR549121
1 The employer made an application pursuant to s.593(3) of the FW Act and this was, in due course, not opposed by the
applicant.
2 Permission was not required for this representation (s.596(4) of the FW Act).
3 This was done in a manner consistent with the statutory charter of the Commission. See the discussion of some of the
relevant considerations for a similar Tribunal in Minogue v HREOC [1999] FCA 85.
4 This was conceded by the employer without prejudice to its position on the merit of the application itself.
5 The basis of the applicant’s claims was confirmed at the outset of the proceedings.
6 Another employee provided a statement but did not wish to give evidence or attend the hearing. Given the potentially
prejudicial nature of that evidence and the other circumstances, I declined to accept or rely upon that statement.
[2014] FWC 2104
18
7 Relying upon the Shorter Oxford Dictionary definition of “repeatedly”.
8 4 Yearly Review of Modern Awards: Preliminary Jurisdictional Issues [2014] FWCFB 1788 at [14] and [15].
9 Australian Education Union v Department of Education and Children’s Services (2012) 285 ALR 27 at [26].
10 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69].
11 Mills v Meeking (1990) 169 CLR 214 at 235 per Dawson J; R v L (1994) 49 FCR 534 at 538.
12 (1985) 60 ALR 509 at 514.
13 Also see Solution 6 Holdings Ltd v Industrial Relations Commission of NSW (2004) 208 ALR 328 at 348 per
Spigelmann CJ.
14 Explanatory Memorandum to the Fair Work Amendment Bill 2013.
15 The Explanatory Memorandum is a source to confirm that the meaning of the provision is the ordinary meaning conveyed
by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or to
determine the meaning of the provision when the provision is ambiguous or obscure; or the ordinary meaning conveyed by
the text of the leads to a result that is manifestly absurd or is unreasonable (s.15AB of the Acts Interpretation Act 1910).
16 1 January 2014.
17 McInnes [2014] FWCFB 1440.
18 Newcastle Wallsend Coal Co Pty Ltd v Workcover Authority (NSW) (Inspector McMartin) [2006] NSWIRComm 339;
159 IR 121 at [301].
19 Thiess Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252, 78 NSWLR 94 at [65]-[67]; Abigroup
Contractors Pty Ltd v WorkCover Authority of New South Wales (2004) 135 IR 317 [58].
20 Macquarie Concise Dictionary definition.
21 At par 111 and 112.
22 Georges and Telstra Corporation Limited [2009] AATA 731 at [23].
23 Ibid.
24 Bropho v Human Rights & Equal Opportunity Commission (2004) 135 FCR 105 at [79].
25 See Von Stieglitz and Comcare [2010] AATA 263 at [67].
26 See the discussion in Department of Education & Training v Sinclair [2005] NSWCA 465.
27 Keen v Workers Rehabilitation & Compensation Corporation (1998) 71 SASR 42.
28 Transcript PN228.
29 Transcript PN954.
30 Statement of SB - Exhibit A4.
31 See Goldberg and Another v NG and Others (1995) 132 ALR 57, AWB Ltd v Cole and Another (No 5) [2006] FCA 1234,
AWB Ltd v Cole and Another (No 6) [2006] FCA 1274 and Fair Work Ombudsman v Quest South Perth Pty Ltd [2012] FCA
608 on the question of the operation and potential waiver of privilege.
32 Although the absence of NP from the workplace might otherwise be relevant to whether there is a future risk of bullying
conduct.
