Application by Mac, Amie - [2015] FWC 774

1

Fair Work Act 2009 
s.789FC - Application for an order to stop bullying

Amie Mac

v

Bank of Queensland Limited; Michelle Locke; Matthew Thompson; Stacey 

Hester; Christine Van Den Heuvel; Jane Newman
(AB2014/1324)

VICE PRESIDENT HATCHER SYDNEY, 13 FEBRUARY 2015

Application for an FWC order to stop bullying.

Introduction

[1] On 3 July 2014 Ms Amie Mac filed an application pursuant to s.789FC of the Fair 
Work Act 2009 (FW Act) for orders to stop bullying at work. The application alleged that 
bullying occurred in the course of Ms Mac’s employment as a lawyer with the Bank of 
Queensland Limited (BOQ), and identified five persons employed by BOQ as the perpetrators 
of that bullying. BOQ filed a response to the application on 16 July 2014.

[2] On 19 September 2014, in response to a direction made by the Commission, Ms Mac 
filed a “Points of Claim” document setting out, in 124 paragraphs and numerous 
subparagraphs, the particulars of her application. It alleged 38 separate instances of 
unreasonable behaviour towards Ms Mac which were said to constitute bullying at work 
within the definition of that expression contained in s.789FD of the FW Act, explicated the 
risk that that behaviour was said to have caused to the health and safety of Ms Mac, and gave 
particulars of the basis upon which it was contended that there was a risk that Ms Mac would 
continue to be bullied at work. Nine orders sought to be made under s.789FF to stop Ms Mac 
being bullied at work were identified. I observe at this point that although the Commission’s 
direction to Ms Mac to file Points of Claim was undoubtedly intended to require her to more 
clearly define and focus the allegations of bullying that she made against the respondents, it 
appears that it had the quite different result of leading her lawyers to seize upon a large 
proportion of any interactions between the individual respondents and Ms Mac over the 
relevant period as constituting instances of alleged bullying. Hints made by me during the 
hearing that the applicant might want to consider narrowing the bullying allegations to those 
which concerned the critical issues at stake were perhaps too subtly expressed, since they 
were ignored (except to the extent that the applicant abandoned two of the 38 alleged 
instances of bullying in closing submissions).

[3] Also pursuant to directions of the Commission, on 29 September 2014 a joint “Points 
of Defence” document was filed by BOQ and the five individual employees of BOQ 

[2015] FWC 774

DECISION


E AUSTRALIA FairWork Commission




 



[2015] FWC 774

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identified in Ms Mac’s application as being the perpetrators of the alleged bullying (the 
respondents). This document, in the manner of a pleading, responded paragraph by paragraph 
to Ms Mac’s “Points of Claim” with denials, admissions and non-admissions, and also raised 
additional factual matters in response. Each instance of alleged unreasonable behaviour was 
denied, and it was further contended that the alleged behaviours constituted reasonable 
management action carried out in a reasonable manner. Any continuing risk of Ms Mac being 
bullied at work was denied, and the making of orders under s.789FF was opposed.

[4] The matter was initially listed for hearing on 4-5 November 2014. For reasons which it 
is unnecessary to state, those hearings dates were vacated and the matter was heard in 
Brisbane on 26-28 November 2014. At the commencement of the hearing, the respondents 
applied for an order under s.593(3)(c) of the FW Act prohibiting the publication of the names 
of the applicant and the five persons it was alleged had engaged in bullying behaviour - in 
other words, to “de-identify” the individuals involved. This was opposed by Ms Mac. Upon 
hearing the parties on this issue, I indicated that I would rule on the application as part of the 
final judgment in the matter, but as an interim measure I ordered under s.593(3)(a) that the 
hearing be conducted in private.

The de-identification application

[5] It is convenient to deal with the de-identification application first. There was no issue 
that the Commission has power under s.593(3) to order the de-identification of the names of 
the individuals involved in this matter. The question in dispute was whether the circumstances 
of the case justified the making of such an order. 

[6] The principle of open justice will usually be the paramount consideration in 
determining whether a confidentiality order of the type sought by the respondents ought be 
made. The main features of that principle were usefully summarised in the NSW Supreme 
Court decision (Pembroke J) in Seven Network (Operations) Limited & Ors v James 
Warburton (No 1)1 as follows:

“[2] The reason for the principle of open justice is that, if the proceedings of courts 
of justice are fully exposed to public and professional scrutiny and criticism, and 
interested observers are able to follow and comprehend the evidence, the submissions 
and the reasons for judgment, then the public administration of justice will be 
enhanced and confidence in the integrity and independence of the courts will be 
maintained: Russell v Russell ; Farrelly v Farelly (1976) 134 CLR 495 at 520 (Gibbs 
J). Not only does the conduct of proceedings publicly and in open view assist in 
removing doubts and misapprehensions about the operation of the system, but it also 
limits the opportunity for abuse and injustice by those involved in the process, by 
making them publicly accountable. Equally, public scrutiny operates as a disincentive 
to false allegations and as a powerful incentive to honest evidence: J v L& A Services 
Pty Ltd (No 2) [1995] 2 Qd R 10 at 45 (Fitzgerald P and Lee J). For all those reasons, 
the principle of open justice is not only an indispensable feature of our system, but it is 
also a healthy feature. 

                                               
1 [2011] NSWSC 385






http://www.austlii.edu.au/cgi-bin/LawCite?cit=%5b1995%5d%202%20Qd%20R%2010
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281976%29%20134%20CLR%20495?stem=0&synonyms=0&query=john%20fairfax%20group%20pty%20ltd%20(receivers%20and%20managers%20appointed)


[2015] FWC 774

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[3] There are limited exceptions to the principle of open justice. Where those 
exceptions apply, the courts will restrict access where appropriate. But departure from 
the principle of open justice is only justified where observance of the principle would 
in fact frustrate the administration of justice by unfairly damaging some material 
private or public interest. To that end, an order restricting the public availability of 
information will only be made if it is really necessary to secure the proper 
administration of justice. Such an order must be clear in its terms and do no more than 
is necessary to achieve the due administration of justice. Furthermore, there must be 
some material before the Court upon which it can reasonably reach the conclusion that 
it is actually necessary to make an order of that type: John Fairfax & Sons Ltd v Police 
Tribunal of New South Wales (1986) 5 NSWLR 465 at 476-7 (McHugh JA); Caroona 
Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 4) [2010] NSWLEC 91 
(Preston CJ); Idoport Pty Ltd v National Australia Bank [2001] NSWSC 1024 
(Einstein J). 

[4] The consequence of the principle of open justice is that embarrassing, 
damaging and inconvenient facts may occasionally come to light. That consideration 
has never been regarded as a reason in itself for the suppression of evidence or for an 
order restricting access to documents: John Fairfax Group Pty Ltd (Receivers& 
Managers Appointed) v Local Court of New South Wales & Ors (1991) 26 NSWLR 
131 at 142 (Kirby P). Equally, it is common for sensitive issues to be litigated and for 
information that is extremely personal or confidential to be disclosed. This is 
sometimes an unavoidable by-product, and a necessary consequence, of the 
application of the principle. 

[5] To avoid the consequences that sometimes follow from the conduct of 
proceedings publicly and in open view, parties can, and frequently do, choose to 
litigate their disputes by private commercial arbitration. But if they choose to litigate 
in court, they must accept the necessity for the Court to conduct its proceedings openly 
and with transparency.” 

[7] The above passage describes the open justice principle in relation to courts, but I 
consider that the passage is equally applicable to a tribunal such as this Commission which 
conducts its processes in a quasi-judicial fashion.

[8] As identified in the passage quoted, departures from the principle of open justice may 
be permitted where not to do so would defeat the proper administration of justice. For 
example, in criminal proceedings involving an allegation of blackmail, identifying details of 
the target of the alleged blackmail will often be suppressed in order that the system of justice 
does not serve to aid the blackmailer. Genuine trade secrets and commercially confidential 
information may be the subject of orders restricting publication and disclosure where their 
exposure in the course of litigation may result in a litigant suffering the injustice of detriment 
at the hands of a competitor.

[9] In relation to the anti-bullying jurisdiction established by Part 6-4B of the FW Act, it 
is apparent that the purpose of the legislation, namely to ensure that workers can continue in 
their engagements at work free from the risk to health and safety caused by workplace 
bullying, would be defeated if the public disclosure of sensitive information during the course 
of anti-bullying proceedings would be likely to have the effect of rendering the relevant 
worker’s continuing engagement unviable. However it is equally apparent that, in accordance 






http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281991%29%2026%20NSWLR%20131?stem=0&synonyms=0&query=john%20fairfax%20group%20pty%20ltd%20(receivers%20and%20managers%20appointed)
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281991%29%2026%20NSWLR%20131?stem=0&synonyms=0&query=john%20fairfax%20group%20pty%20ltd%20(receivers%20and%20managers%20appointed)
http://www.austlii.edu.au/au/cases/nsw/NSWSC/2001/1024.html
http://www.austlii.edu.au/au/cases/nsw/NSWSC/2001/1024.html
http://www.austlii.edu.au/au/cases/nsw/NSWLEC/2010/91.html
http://www.austlii.edu.au/au/cases/nsw/NSWLEC/2010/91.html
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281986%29%205%20NSWLR%20465


[2015] FWC 774

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with the open justice principle, it is not sufficient to justify the making of a non-disclosure 
order merely that allegations have been made which are embarrassing, distressing or 
potentially damaging to reputations. In an anti-bullying matter, as with other types of 
proceedings before the Commission such as unfair dismissal remedy applications, the findings 
of the Commission concerning allegations which have been made will usually appropriately 
resolve concerns about embarrassment, distress or damage to reputation. If findings are made 
that an applicant’s allegations of bullying behaviour are unfounded, then the position of 
persons alleged to be the perpetrators of such bullying will be vindicated and the outcome will 
redound upon the applicant. However if allegations of bullying are found to be substantiated, 
then public identification of the perpetrators of that bullying is normally appropriate. In either 
case, the public scrutiny involved will have a deterrent effect that is in the public interest - in 
the former case against the making of unfounded allegations and in the latter case against 
engagement in bullying behaviour.

[10] If a party applies for confidentiality orders on the basis that disclosure of sensitive 
information is likely to endanger the viability of a continuing working engagement, then that 
party will need to positively satisfy the Commission that this is the case. It is not sufficient for 
this simply to be asserted. In this case, the respondents have submitted that de-identification 
was appropriate because it would:

(1) minimise the negative impact that any open proceedings may have on Ms Mac, 
particularly in relation to her ability to return to work;

(2) minimise the negative impact that any open proceedings may have on the 
health of Ms Mac;

(3) minimise the adverse impact on the individual respondents of untested 
allegations, including allegations to the effect that they (being lawyers) have 
breached the Australian Solicitors’ Conduct Rules; and

(4) minimise unnecessary knowledge of the proceedings amongst BOQ 
employees, thereby minimising the potential to adversely affect any return to 
work by Ms Mac.

[11] In relation to contentions (1), (2) and (4) above, if the Commission was positively 
satisfied that the disclosure of the names of the individuals involved in this matter would 
seriously endanger the ability of Ms Mac, who is currently off work because of psychological 
illness, to ever return to her employment with BOQ, then that would form a proper basis for 
the making of de-identification orders under s.593(3) of the FW Act. However the contentions 
in this respect did not rise above the level of generalised assertions. There was nothing in the 
evidence, including the medical evidence, which could form a proper basis for the conclusion 
that the identification of the names of the relevant individuals would be likely to prevent Ms 
Mac from returning to work at an appropriate time. Ms Mac herself, who had access to 
competent legal and medical advice, expressed no concerns on this score and was opposed to 
the making of de-identification orders.

[12] Contention (3) is misconceived. There is no issue of “untested” allegations here, 
because the allegations have been tested at the hearing and will be the subject of findings in 
this decision. Whilst I do not anticipate that the findings I intend to make will give any of the 
individual respondents concern for their reputations, the possibility of the effect of adverse 








[2015] FWC 774

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findings on the reputation of individuals is not in itself a proper basis for the non-disclosure of 
the names of those individuals, for the reasons already discussed. For example, although in 
this case there is no basis whatsoever to find that any of the individual respondents have as 
lawyers breached the Australian Solicitors’ Conduct Rules, were it necessary for me to make 
such a finding, the principle of open justice as well as the public interest would support the 
identification of the person(s) the subject of such a finding.

[13] Accordingly I do not consider there to be any proper basis for the making of the de-
identification orders sought by the respondents and I reject their application in this respect.

Facts

The witnesses

[14] Ms Mac gave evidence on her own behalf by way of a lengthy witness statement 
which annexed a large number of documents, and was the subject of extensive cross-
examination. She also adduced evidence from the following witnesses:

 William Morgan, her husband and a solicitor;
 Dr Louise Wilson, her general practitioner; and
 Dr Nicholas Jetnikoff, a psychiatrist.

[15] Mr Morgan and Dr Wilson made statements of evidence and were cross-examined on 
those statements. Dr Jetnikoff swore an affidavit which annexed an expert’s report which he 
produced dated 30 June 2014 arising from his examination of Ms Mac on 19 June 2014. He 
was not required for cross-examination.

[16] Each of the individual respondents gave evidence, namely:

 Stacey Hester, Head of Group Legal at BOQ;
 Christine Van Den Heuvel, Senior Corporate Solicitor at BOQ;
 Jane Newman, Senior Corporate Solicitor at BOQ;
 Michelle Locke, BOQ’s Human Resources (HR) Operations Team Leader; and
 Matthew Thompson, Senior Corporate Solicitor - General at BOQ.

[17] Each of the individual respondents made witness statements and were cross-examined.

[18] There was little contest about the basic facts in this matter. I consider that all the 
witnesses gave truthful evidence about the relevant matters of fact, and in most cases the
factual issues between them can be explained by genuine differences in recollection or 
perception. The real contest between the witnesses requiring resolution concerned their 
opinions and characterisation of various events and conduct. 

Background matters

[19] Ms Mac is an admitted solicitor and a chartered accountant. She has a background in 
corporate and finance law. She is 43 years of age. On 10 January 2011 she commenced 
employment with BOQ as Corporate Solicitor.








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[20] BOQ has an internal legal department (Group Legal) which, at the time of the hearing, 
consisted of ten Corporate Solicitors reporting to their designated Senior Corporate Solicitor 
managers. Group Legal also has two paralegals and a secondee. At all times during Ms Mac’s 
employment, Ms Hester has been the Head of Group Legal. She reports to Mr Brad Edwards, 
BOQ’s General Counsel.

[21] At all relevant times, Group Legal has provided legal services internally to BOQ, 
including BOQ’s subsidiaries. Work is allocated to the Corporate Solicitors through two 
means: the Legal Inbox system and directly by each solicitor’s designated Senior Corporate 
Solicitor manager. The Legal Inbox is an email inbox to which internal “clients” may send 
legal queries and seek legal advice in response. Responsibility for the allocation of the queries 
for response is rotated between each of the Senior Corporate Solicitors and the Head of Group 
Legal on a weekly basis. The efficiency of the Corporate Solicitors may be assessed by 
reference to the number of Legal Inbox tasks allocated, the timeframe in which the response 
was prepared, and the quality of the response.

[22] Each Senior Corporate Solicitor also has responsibility for designated “work streams” 
- that is, areas of practice - within BOQ’s operations. Work requests are received by Senior 
Corporate Solicitors from their work streams, and these might then be allocated to the any of 
the Corporate Solicitors who reported to that Senior Corporate Solicitor.

[23] Corporate Solicitors are assessed for performance twice a year - an indicative half year 
Performance Development Assessment (PDA), and then a full-year PDA to which 
opportunities to be paid a bonus attach. Each Corporate Solicitor is required to fill out a self-
assessment document as part of the PDA process, and then is initially assigned a performance 
rating by the Senior Corporate Solicitor to whom he or she reports. The performance rating is 
then “moderated” by Ms Hester and Mr Edwards, which may result in an adjustment of the 
performance rating. It is only after the moderation step has been taken that the Corporate 
Solicitor is meant to be informed of the outcome.

[24] For under-performing employees, BOQ uses Performance Improvement Plans to 
identify and attempt to rectify shortcomings in performance (as discussed in greater detail 
later in this decision). If poor performance cannot ultimately be rectified, termination of 
employment may result.

Performance issues emerge

[25] Ms Mac initially reported to Ms Sheryl Daley as her Senior Corporate Solicitor 
manager. She was rated as “competent” in her first full-year PDA in October 2011. On 12 
December 2011 she had her first meeting with Mr Edwards, with Ms Hester present. Some 
elements of Ms Mac’s work performance appear to have been touched on in this meeting. A 
file note of the meeting records the following: “Weakness - analyse everything to the nth 
degree”. It is not clear from the file note who said this; Ms Mac’s recollection was that she 
said it herself. The note also states: “Internal courses to develop negotiation & people skills.” 
There were also positive comments about Ms Mac’s work performance at this meeting.

[26] From about July/August 2012 until December 2013, Ms Mac reported to Ms Van Den 
Heuvel. Ms Van Den Heuvel soon formed the view that there were problems with Ms Mac’s 
work performance - in particular that the amount of hours that she worked was not reflected in 
the volume of her work output, that she tended to “overwork” her files, and that she failed to 








[2015] FWC 774

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effectively prioritise her work load. In October 2012 Ms Mac went through her second full-
year PDA process. She was rated as “competent” again. On 15 October 2012 Ms Van Den 
Heuvel met with her to discuss her PDA. Ms Mac was advised that she needed to prioritise 
her work more effectively, not overwork her files and use her time more efficiently, and told 
that she seemed to take more time to complete her tasks than other Corporate Solicitors.

[27] From about this time onwards, Ms Mac was increasingly performing work on St 
Andrew’s matters. St Andrew’s was an insurance business which BOQ had purchased. From 
Ms Mac’s perspective, she found St Andrew’s to be a difficult and demanding client, 
particularly as she was required to deal with St Andrew’s personnel who were much higher in 
the corporate hierarchy than herself. She often raised these issues at the weekly “one-on-one” 
meetings which she had with Ms Van Den Heuvel, and at weekly team meetings. From Ms 
Van Den Heuvel’s perspective, Ms Mac was spending too much time “handholding” St 
Andrew’s personnel such as by unnecessarily attending lengthy teleconferences. Ms Van Den 
Heuvel advised Ms Mac as to strategies to minimise unnecessary time being spent on St 
Andrew’s matters.

[28] By approximately early to mid-2013, Ms Van Den Heuvel had firmed in her 
assessment of Ms Mac that she needed to increase her work output, manage her time more 
effectively and complete her priority work. In her 2013 half-yearly PDA she rated Ms Mac as 
“needs development”. She discussed her rating with Mr Edwards and Ms Hester, and 
informed them that there were issues concerning Ms Mac’s timeliness in completing assigned 
tasks, her failure to seek assistance, and her contract work. Ms Hester agreed with Ms Van 
Den Heuvel’s assessment of Ms Mac’s performance.

[29] On 12 June 2013 Ms Van Den Heuvel met with Ms Mac to discuss her half-yearly 
PDA. There is no dispute that Ms Van Den Heuvel made a number of positive comments 
concerning Ms Mac’s work performance, including that she was thorough, had good 
analytical skills, good people skills, and that St Andrew’s enjoyed working with her and she 
had a good rapport with that business. However, Ms Van Den Heuvel raised a number of 
areas in which Ms Mac needed to improve her work performance, namely:

 time management;
 work output;
 spending appropriate amounts of time on matters;
 general advising;
 workload;
 assisting others when they were busy;
 regularly and correctly completing St Andrew’s timesheets;
 decision making in progressing matters;
 service levels not being met on contract reviews; and
 allocation of general advice work from other Senior Corporate Solicitors.

[30] In relation to Ms Mac’s workload, Ms Van Den Heuvel in her evidence referred to a 
report entitled “Business Excellence Review - Analysis of Group Legal Inbox” which was 
prepared by BOQ’s Business Excellence Team in August 2013 and, among other things, 
analysed the volume of queries responded to by each member of Group Legal in the period 
May-August 2013. This analysis demonstrated that Ms Mac did the lowest number of 
responses to queries amongst the Corporate Solicitors (that is, not counting Mr Edwards, Ms 








[2015] FWC 774

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Hester, the Senior Corporate Solicitors, the paralegals and the secondee) except for one 
Corporate Solicitor who worked on long-term contracts and was not required to respond to 
Legal Inbox queries. The same analysis demonstrated that 82% of the Legal Inbox responses 
were done by eight of the Corporate Solicitors, and this eight did not include Ms Mac.

[31] Ms Mac in her case pointed to another analysis in the same report which calculated the 
“average cycle time” (that is, the average time to provide a response) for each member of 
Group Legal in relation to Legal Inbox queries. This showed Ms Mac having a relatively low 
average response time of 1.6 days compared to the results for other members of Group Legal 
and an overall average of 3 days. Ms Mac, understandably enough, relied upon this analysis to 
rebut any suggestion that she had a timeliness problem. However, this particular analysis is, 
on its face, problematic. It shows a Corporate Solicitor who responded to 72 queries in the 
time period (compared to Ms Mac’s 18) having an average response time of 5 days. Similar 
results apply to a number of Corporate Solicitors with high volumes of response. It is difficult 
to comprehend how some persons could perform much higher volumes of work if they had 
much higher response times. For some persons, the average response time is recorded 
(without explanation) as zero. The report observes that the average cycle times by solicitor 
vary significantly, and states “The reasons for this require deeper analysis but could be due to 
the types of queries or complexity”. The contents of this report do not dissuade me from 
accepting the evidence given by Ms Van Den Heuvel and supported by Ms Hester that Ms 
Mac had difficulties in the timeliness with which she responded to legal inquiries. 

[32] At the 12 June 2013 meeting, Ms Mac resisted much of what Ms Van Den Heuvel put 
to her. She disagreed that she had the lightest workload and the highest turnaround time in 
Group Legal, and that the other solicitors did not know exactly what she did because they had 
no visibility about the amount of work she did for St Andrews. Ms Van Den Heuvel made a 
number of suggestions concerning how she might improve her work performance, including 
that she should:

 have a spreadsheet prepared of her advising schedule for St Andrews so that the work 
that was being performed could be better understood;

 prepare timesheets, so that Ms Van Den Heuvel could understand what she was 
working on and how long she was taking to do it;

 provide greater assistance to other solicitors; and
 proactively seek more “exposure” from Ms Van Den Heuvel about how to “approach 

matters from a high level rather than a process level”.

[33] Either at this meeting or around the same time, Ms Van Den Heuvel requested that 
Ms Mac provide her with access to her email so that Ms Van Den Heuvel could monitor it 
when Ms Mac was on leave or if something urgent needed to be dealt with.

[34] Ms Mac did provide Ms Van Den Heuvel with timesheets for the six week period up 
to 23 July 2013. However they were not provided progressively; Ms Mac sent them all to Ms 
Van Den Heuvel in one email on 24 July 2013, under protest, when Ms Van Den Heuvel 
reminded her about them. Ms Mac did not have the advising schedule for the St Andrews 
work set up, and she did not provide Ms Van Den Heuvel with access to her email. Ms Mac 
blamed other persons for this. From Ms Van Den Heuvel’s perspective, Ms Mac did not 
proactively seek advice and feedback from her except on rare occasions.








[2015] FWC 774

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[35] In a one-on-one meeting between Ms Mac and Mr Edwards which occurred soon after 
the meeting with Ms Van Den Heuvel, Ms Mac complained about being the only person in 
Group Legal that had been required to fill out timesheets. On 27 June 2013 Ms Mac had a 
further meeting with Mr Edwards, at which Ms Van Den Heuvel was present, during which 
there was a discussion about Ms Mac’s time management skills, with specific reference being 
made to the delay in issuing a letter relating to Western Union. Apparently arising from this 
meeting, Ms Mac sent Mr Edwards an email at his request listing areas in which she 
considered she needed development. Her list identified “Not to over-analyse”, “Not to 
overcook legal advices”, “To push back on work that is not a strategic priority for the Bank” 
and “The need to be commercial vs perfection”. I consider that Ms Mac’s email implicitly 
recognised that there was a legitimate concern about her timeliness and work prioritisation, in 
that she was spending too much time on advices that could properly have been prepared in a 
shorter period.

[36] On 6 September 2013, Ms Van Den Heuvel met with Ms Mac to discuss her full-year 
PDA. It is significant to note that the occurrence of this meeting was not in accordance with 
the usual procedures for PDAs earlier described, in that Ms Mac’s PDA had not yet 
undergone the moderation process and thus her final rating had not yet been determined. At 
this meeting, Ms Van Den Heuvel described areas in which Ms Mac had performed well, and 
areas in which she had made improvements, with the latter including less over-servicing, 
increased awareness of work outputs and some but still not sufficient improvement in work 
outputs, and some improvement in initiative. However, she identified eight areas in which 
improvement was required: time management; being proactive rather than reactive;
completion of work in requested timeframes; turnaround times; assisting others; proactively 
moving projects forward; setting up the St Andrews advising schedule; and low workload and 
slow turnaround times on Legal Inbox work. Ms Van Den Heuvel gave some generalised 
examples of some of this. Overall, Ms Van Den Heuvel rated Ms Mac as “low level 
competent” based on a recognition that she had been making a concerted effort to improve.

[37] Ms Mac responded to a number of matters in which she was told she needed 
improvement, and defended herself against some of the criticisms made of her. Her evidence 
was that by the end of the meeting, “I was of the understanding that Christine did not have 
any ongoing problem with my work” and “Whatever issues she may have had previously had 
been resolved”. While I do not question that Ms Mac, subjectively speaking, went away from 
the meeting with that understanding, I do not consider that there was any reasonable objective 
basis for her to have formed that understanding. Ms Van Den Heuvel’s specific identification 
of a number of areas that needed improvement, and her overall rating of “low level 
competent”, should have clearly signalled to Ms Mac that there remained significant issues 
with her performance. 

[38] Subsequent to this meeting, Ms Mac’s PDA was moderated by Ms Hester and Mr 
Edwards. Ms Hester formed the view that Ms Van Den Heuvel’s rating of Ms Mac was not 
supported by evidence, and she recommended to Mr Edwards that Ms Mac be rated “Needs 
development”. Ms Hester gave evidence that her view in this respect was influenced by the 
following matters:

 Ms Mac’s low workload and slow turnaround times on Legal Inbox inquiries;
 Ms Mac’s delay of about a week in having the Western Union letter issued after Ms 

Hester had approved it;








[2015] FWC 774

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 Ms Hester could not identify any occasion where Ms Mac had volunteered to help 
other solicitors who were busy or under pressure;

 Ms Mac’s delay of some weeks in preparing a summary of the Credit Reporting Code 
– a task which Mr Hester considered should have taken 3-5 days to complete; and

 Ms Mac’s continuing failure to attend to tasks in a timely manner, such as a failure 
after about ten days to send documents to BOQ’s external legal advisors concerning 
advice about BOQ’s obligations under the Privacy Act 1988 (Cth). 

[39] Mr Edwards agreed with Ms Hester’s recommendation, and Ms Mac’s PDA rating 
was downgraded to “Needs development” accordingly. A letter was drafted for Ms Van Den 
Heuvel to give to Ms Mac reflecting this decision. The letter, as issued, was dated 25 October
2013. One consequence of the rating of “Needs development”, as explained in the letter, was 
that Ms Mac received no increase to her salary. 

[40] Ms Van Den Heuvel had a meeting with Ms Mac to discuss her PDA rating on 30 
October 2013. There is some difference of recollection between them as to what happened at 
this meeting. Ms Mac’s evidence was that Ms Van Den Heuvel told her that the rating had 
nothing to do with her individual performance and it was a result of the fact that the whole of 
Group Legal had had its performance downgraded. Ms Van Den Heuvel denied this. What 
they do agree upon is that, at the meeting, Ms Van Den Heuvel again criticised Ms Mac’s 
performance by reference to her low workload and slow turnaround times, and discussed with 
her ways to improve this. This is inconsistent with the proposition that Ms Van Den Heuvel 
told Ms Mac that her individual performance was not an issue in the PDA rating 
downgrading. Ms Van Den Heuvel’s contemporaneous file note of the meeting supports her 
evidence about what occurred at the meeting. I prefer the evidence of Ms Van Den Heuvel in 
relation to this meeting. 

[41] One issue that was flagged at this meeting, as confirmed by Ms Van Den Heuvel’s file 
note, was that Ms Van Den Heuvel was to be replaced in her role by Matthew Thompson, 
another Senior Corporate Solicitor, and as a result Mr Thompson would become Ms Mac’s 
supervisor. Ms Van Den Heuvel’s note of the meeting refers to Mr Thompson’s intention to 
do a “formal handover” on 29 November 2013. The note also refers to Ms Van Den Heuvel 
speaking to Mr Thompson about a “performance plan” for Ms Mac. Ms Van Den Heuvel 
observed that Ms Mac appeared quite angry during the meeting and may not have digested the 
reference to the performance plan, but had calmed down by the end of the meeting.

The Performance Improvement Plan

[42] At about the time of this meeting, BOQ had in place a Performance Management 
Policy, the intent of which was stated to be to “make explicit the Bank of Queensland’s 
performance management procedures which aim to provide justice, fairness and consistency”. 
The policy makes a reference to the application of a “performance management process” 
where an employee is not meeting the required standards in work performance or mandatory 
training for the employee’s role. The nature of that process is not described in the policy 
except for a requirement that the process be “procedurally and substantively fair” and that it 
have the objective to “ensure that employees understand what is required to perform the role 
so that they improve their performance to meet the required standards”. The rest of the policy 
is concerned with the disciplinary processes of counselling, first, second and final warnings, 
and if necessary termination where “an employee fails to meet the required performance 
standards or fails to complete the mandatory training for the role within a reasonable period 








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of time ...”. There was no reference in the policy to a “performance improvement plan”. By 
February 2014 the Performance Management Policy had been modified somewhat, but it 
retained the same features as the earlier version of the policy already described. It too made 
no mention of a “performance improvement plan”.

[43] Notwithstanding the lack of reference to them in the relevant policy, it was the 
evidence of Ms Michelle Locke, BOQ’s HR Operations Team Leader, that performance 
improvements plans (PIPs) were the standard tool used by BOQ to “assist the employee to 
improve their performance”, and were used quite frequently to the extent that there were 
about 15 PIPS in place in BOQ at any one time. Ms Locke described the practice as being that 
once a manager had identified a need for an employee to be placed on a PIP, and that need 
had been confirmed by HR, the manager would be sent “the policy and guidelines on how to 
run the PIP process”. It was not clear to me what Ms Locke was referring to in this 
connection, since no document setting out any policy or guidelines concerning PIPs was 
placed into evidence. Ms Locke said that HR would then send the manager a template for the 
PIP, which would then be prepared by the manager, reviewed by HR, and signed off by the 
manager and the relevant employee. HR ensured that the manager had had informal 
discussions with the employee before putting them on a PIP, and once the terms of the PIP 
was settled, the manager was required to meet with the employee and present the PIP.

[44] Ms Locke said that PIPs generally had a 12 week duration. Once the PIP was in place, 
the process was that the manager and the employee would continue to have regular meetings 
to discuss the work being performed, with a formal review occurring every four weeks. 
Where an employee failed to meet the objectives of the PIP, this was referred to as a 
“breach”. When a breach occurred, HR would prepare a “notice of formal meeting” to be sent 
to the employee which outlined the nature of the breach which the manager believed had 
occurred and gave notice (usually 24 hours) of the details of a PIP review meeting to be held 
to discuss the breach. At the meeting the employee was to be requested to provide a response 
to the identified breach, which would then be considered by management and HR. Where, 
after such consideration had occurred, it was determined that the PIP had been breached, HR 
would draft a written warning to be given to the employee. Under the Performance 
Management Policy as earlier described, there was provision for three written warnings before 
a termination of employment on performance grounds could occur.

[45] Shortly after Ms Mac’s full-year PDA for 2013, a decision was collectively reached 
between Mr Edwards, Ms Hester and Ms Van Den Heuvel to place Ms Mac on a PIP. The PIP 
was prepared Ms Hester, Ms Van Den Heuvel and Mr Thompson in conjunction with HR. It 
was determined that Ms Van Den Heuvel, who had worked with Ms Mac as her supervisor 
and was regarded as having firsthand knowledge of the issues, would initially have primary 
responsibility for the preparation of the PIP and its presentation to Ms Mac, with Mr 
Thompson also being in attendance.

[46] On 8 January 2014 Ms Mac was invited by email to attend a “performance plan 
meeting” with Ms Van Den Heuvel and Mr Thompson on 10 January 2014. Ms Mac replied 
by requesting an agenda for the meeting, the response to which was that the agenda was to 
discuss a draft PIP. On 9 January 2014 the draft PIP was sent to Ms Mac. The PIP, which was 
in tabular form, identified in separate columns the “Specific areas for development”, the 
“Coaching, training or action required” in each such area, the manager responsible for 
coaching and feedback, and the standards of performance to be achieved. A final column, left 
blank, gave space to fill in a “A review of performance” in each identified area. There were 








[2015] FWC 774

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five identified specific areas for development: preparation of legal advices in a user friendly 
way, proactivity in providing advice, timeliness in completion of work, accurate assessment 
of the amount of work required in a matter to increase work output, and collaboration. The 
document contained a warning that “If the agreed performance standards are not met and 
your performance does not improve in line with the requirements of your role, the result may 
include disciplinary action up to and including termination of your employment”. At the foot 
of the document there were spaces to record the manager’s and the employee’s comments for 
each review outcome including the final review outcome.

[47] Ms Mac described her reaction upon receiving and reading the draft PIP as follows:

“I recall when I first received the PIP document that I had a physical reaction to it. I was 
shaking and my face became very flushed. I felt ill. I was completely surprised by the 
document. I did not understand it. I thought why do I have to do this. I had not heard of 
the PIP process before. I felt nervous and anxious. I did not know why I was being 
subjected to this process. I noted on the last page of the document that it says the 
process could lead to the termination of my employment. I was worried what I would 
do if I did not have a job. I felt powerless as if there was nothing I could do about it. I 
felt like crying but could not because I work in an open plan environment.”

[48] I do not doubt that Ms Mac accurately described in her evidence her subjective 
reaction to receiving the draft PIP. However, at least two aspects of her reaction must, from an 
objective point of view, be called into question. The first is her surprise at receiving the 
document. In circumstances where Ms Mac had clearly been placed on notice about aspects of 
her work performance, had been assessed in her last PDA as needing development, and had 
been told by Ms Van Den Heuvel on 30 October 2013 about the possibility of a performance 
plan, this development ought not to have come as a surprise, unwelcome as it undoubtedly 
was. The second is Ms Mac’s professed incapacity to understand the document. The PIP was, 
at least to someone of Ms Mac’s intelligence and education, perfectly comprehensible and 
indeed self-explanatory. There was no rational reason why Ms Mac could not have quickly 
understood from the document the nature of the process being proposed and what would be 
required of her.

[49] On 10 January 2014 the foreshadowed meeting to discuss the PIP occurred, with Ms 
Van Den Heuvel, Mr Thompson, Ms Mac and Ms Mac’s support person present. The meeting 
involved Ms Van Den Heuvel attempting to explain the PIP and the process, but being 
interrupted by questions from Ms Mac. Ms Van Den Heuvel’s file note of the meeting, which 
I accept as being accurate, records Ms Mac as saying that the PIP had come “out of the blue”, 
was “procedurally unfair”, that she had not heard any of the problems identified in the PIP 
before, that she objected to it and that she did not understand the process. Ms Mac gave 
evidence that Ms Van Den Heuvel described the PIP as “informal”, but I prefer Ms Van Den 
Heuvel’s evidence that she only said that that particular meeting was informal. The possibility 
of disciplinary action, including termination of employment, occurring if the PIP did not 
result in Ms Mac’s performance improving was canvassed. Ms Mac did not engage with Ms 
Van Den Heuvel or Mr Thompson concerning the contents of the PIP, and eventually the 
meeting was adjourned so that Ms Mac could get advice from HR about the process.

[50] On 13 January 2014 Ms Mac met with Ms Locke, and on her own evidence 
complained that she did not understand why she was to be put on a PIP, and said that 
“previous problems had been discussed and worked out from a prior PDA” and that Ms Van 








[2015] FWC 774

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Den Heuvel had “upgraded my performance in my PDA from needs development to meets 
expectations”. I interpolate at this point that these statements evince on Ms Mac’s part a non-
acceptance of what had been the actual outcome of the 2013 PDA process. Ms Locke told Ms 
Mac that there was a dispute resolution process which she could utilise to resolve her 
concerns about the PIP, under which she should first try to resolve the issue directly with her 
manager, and if that did not assist raise the issue with her “two-up” manager (which was Ms 
Hester). If the matter was not resolved at this point, Ms Mac could continue to escalate the 
matter further up the management chain until she reached an executive. Surprisingly, BOQ 
did not have a written and accessible dispute resolution policy for employees such as Ms Mac 
who were not covered by an industrial instrument, so that Ms Locke’s advice to Ms Mac on 
this issue had an ad hoc quality to it. The process described by Ms Locke was of little 
practical utility to Ms Mac in circumstances where her former supervisor Ms Van Den 
Heuvel, her two-up manager Ms Hester, and the General Counsel, Mr Edwards, had all been 
party to the decision to place her on the PIP. Ms Mac did not subsequently attempt to activate 
the dispute resolution process described to her by Ms Locke.

[51] According to Ms Mac, Ms Locke told her that HR would not get involved in a dispute 
between her and her manager concerning the PIP. Ms Locke denied saying this. I think it is 
likely that, in describing the dispute resolution process, Ms Locke may have said that 
involvement of HR was not a step in that process, but I consider that little turns on this. Ms 
Locke also gave Ms Mac an explanation of BOQ’s Performance Management Policy and the 
PIP process. This was not apparently of any assistance to Ms Mac. She described herself at 
this point in time as having trouble sleeping, feeling physically ill, not eating well, and feeling 
very anxious and uncertain about her position.

[52] The meeting to discuss the PIP with Ms Van Den Heuvel and Mr Thompson was 
eventually rescheduled to 17 January 2014. Ms Mac attended with her husband Mr Morgan as 
her support person. The meeting lasted for about an hour. Mr Thompson made an extensive 
contemporaneous file note of the meeting which I accept as reliable. During the meeting Ms 
Mac raised a number of objections to the PIP, including that she had gone from “Needs 
Development” to “Competent” from her mid-year to full-year 2013 PDA (again evincing a 
refusal to accept the actual outcome of the full-year 2013 PDA) so that she could not 
understand why a PIP was now necessary, that the 2013 PDA issues had been discussed and 
satisfactorily addressed, and that the PIP had come “out of the blue” and she could not 
understand the reasons behind it. She also asked “Where is the deficiency?” in a number of 
ways. When Ms Van Den Heuvel identified the performance deficiencies which had led to the 
PIP and gave some specific examples of these, Ms Mac disputed each of these. Ms Van Den 
Heuvel indicated that Mr Thompson would monitor and run the PIP process from that point 
onwards, and Mr Thompson himself declared that he would be “fair, reasonable and would 
strictly follow the process as set out by HR” and that he would “monitor performance under 
the PIP with fresh eyes”. Eventually some amendments to the PIP were agreed, and Ms Mac 
indicated that she would sign the PIP. 

[53] The PIP with the agreed amendments was subsequently sent to Ms Mac, and she 
signed it on or about 21 January 2014. However in doing so, Ms Mac handwrote some 
comments on the PIP to the effect that she had been asked to sign the document without 
explanation and that she had no opportunity to respond. Ms Hester responded by email to the 
effect that BOQ did not accept those comments. I consider that Ms Hester was correct to do 
so. Ms Mac’s comments were simply at odds with the facts as described above. Ms Mac sent 
Ms Hester an email in reply on 31 January 2014 in which she canvassed a number of issues 








[2015] FWC 774

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including that she did not know the reason why she had been required to engage in the PIP 
process and that she had not been provided with any specific details or examples of 
underperformance. Ms Hester replied in a short email on 3 February 2014 which included the 
statement: “The details of the underperformance are outlined in the PIP document”.

[54] Around this period and at Ms Van Den Heuvel’s suggestion, Mr Thompson sought 
“recent third party feedback” from St Andrews and BOQ’s compliance work stream 
concerning Ms Mac’s work performance. He and Ms Hester jointly telephoned Mr Doug 
Smith, St Andrews’ General Manager, Risk Reporting and General Counsel, who was St 
Andrews’ liaison with Group Legal. The notes of the teleconference record that Mr 
Thompson told Mr Smith that Ms Mac had been placed on a PIP as a result of consecutive 
“Needs development” PDA ratings, and asked Mr Smith for feedback concerning Ms Mac’s 
performance. Without going into details, it is sufficient to say that Mr Smith expressed a 
degree of dissatisfaction with Ms Mac’s work performance but noted improvement in some 
areas. Mr Thompson also emailed Mr Jon Holland, BOQ’s Senior Manager of Compliance, to 
seek similar feedback. His email referred to Ms Mac having been placed on a PIP. Mr 
Holland’s reply expressed concern about the content of some of the written advice which Ms 
Mac had provided, but stated that she had improved her timeliness.

[55] During the initial period of the operation of the PIP, Mr Thompson met with Ms Mac 
on a weekly basis in one-on-one meetings to discuss and provide feedback as to her 
performance. He formed the view by about mid-February that Ms Mac was not meeting the 
objectives of the PIP and had therefore “breached” it. This was based on his assessment that 
Ms Mac was not meeting the objectives in relation to four of the five “Specific areas for 
development” (with timeliness being the only area not included). The general observations 
made by Mr Thompson in his evidence about Ms Mac’s performance included that she was 
“struggling deeply”, “performed poorly on a number of occasions”, “escalated matters to me 
which should have been well and truly within her capabilities given her experience”, 
“communicated poorly with clients”, “displayed a lack of legal acumen on many commonly 
encountered, day to day matters”, “lacked the capacity for critical analysis” and “lacked 
confidence in her decisions”. 

[56] Mr Thompson in forming his view that Ms Mac had breached the PIP also relied on 
feedback from colleagues. Ms Hester gave him a number of negative examples of Ms Mac’s 
performance. These were set out extensively in her statement of evidence. One of these was 
that Ms Hester had allocated three general inquiries, one trust deed review and one privacy 
query from the Legal Inbox to Ms Mac, but by the following week Ms Mac had only 
responded to two of them. Ms Hester estimated that she would have allocated three to four 
times as many Legal Inbox queries to other named solicitors. A further example was that Ms 
Mac had been required to respond to a query concerning the Privacy Act, and the answer 
which she gave had been incorrect. Jane Newman and Sheryl Daley were the other Senior 
Corporate Solicitors with whom Mr Thompson consulted. Ms Newman at least gave him an 
example of what she considered to be seriously deficient performance. Mr Thompson 
compiled a dossier of the various instances of unsatisfactory performance about which he was 
advised or was aware.

[57] The first formal review meeting was initially scheduled for 17 February 2014, one 
month after the meeting at which the PIP had been finalised, and then was rescheduled for 18 
February 2014. Mr Thompson had prior to this meeting received advice from Ms Locke as to 
the appropriate way in which to conduct the review meeting and given notice to Ms Mac of 








[2015] FWC 774

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the alleged breach of the PIP. However the meeting did not proceed, and the notice was not 
issued, because Ms Mac was off work sick. She telephoned Mr Thompson on 17 February 
2014 and told him that she was suffering from diarrhoea, but in reality Ms Mac was suffering 
from a stress condition. Ms Mac’s general practitioner, Dr Louise Wilson issued a certificate 
that day indicating that Ms Mac was suffering from a “medical condition” and would be unfit 
for work up to and including 21 February 2014. Ms Mac saw Dr Wilson again on 21 February 
2014, and was issued with a further certificate (again simply referring to a “medical 
condition”) certifying her as unfit up to and including 28 February 2014. 

[58] On 3 March 2014 Ms Mac returned to work. During that day she received a letter from 
Mr Thompson notifying her that the review meeting would occur on 4 March 2014 and giving 
her notice that Mr Thompson had “reason to believe” that she had breached the PIP in respect 
of two of the “Specific areas for development” only, namely preparation of legal advices in a 
user friendly way and proactivity in providing advice. Ms Mac responded by sending an email 
the same day as follows:

“I refer to your letter dated 3 March 2014.

I note you allege that you have reason to believe that I may have breached the PIP in 
two respects. I am entitled to have notice of these alleged breaches so I can consider 
them and take advice about them. Please urgently provide detailed written particulars 
of each alleged breach so I can reasonably consider that and take advice before the 
review meeting which I noted has been scheduled for 4 March 2014.

I do wish to bring a support person to the review meeting being my legal 
representative Mr Adam Tayler from Turner Freeman Lawyers. Mr Tayler is 
unavailable to attend the meeting as scheduled at such short notice. 

I accordingly seek to re-schedule the meeting until such time as the requested 
particulars are provided and I am given at least 48 hours to consider them and my 
representative is available. Assuming I receive the particulars in writing on 4 March 
2014 then I would be available with my representative to meet with you on Thursday 6 
March between 8:00am to 10:00am, between 12:00 and 1:30pm and after 3:30pm.”

[59] After having obtained advice from Ms Locke, Mr Thompson responded by advising 
Ms Mac by email the following day that the meeting would be held on 6 March 2014, that she 
was entitled to bring a support person to the meeting but not an advocate, and that BOQ had 
already provided her “with all necessary information and relevant information”, and that the 
purpose of the meeting would be to “discuss the matters outlined with you and to receive your 
response in relation to the matters”. Ms Mac then sent Mr Thompson a further email in which 
she pressed her request for particulars, to which Mr Thompson referred to his earlier email 
and letter and said that “We will run through each specific incident at the meeting”.

[60] It was Mr Thompson’s intention at the 6 March 2014 meeting to take Ms Mac to each 
example of unsatisfactory performance identified in his dossier which he regarded as being in 
breach of the PIP and discuss each one with her at length, and then consult with HR after the 
meeting to determine whether a breach had occurred and, if so, what action should be taken.
The meeting proceeded with Mr Thompson, Ms Hester, Ms Mac, and Ms Mac’s legal 
representative Mr Tayler in attendance. Mr Thompson made a file note of what occurred at 
the meeting, which I accept as being reliable. Mr Thompson initially inquired of Ms Mac 








[2015] FWC 774

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whether she was well enough to proceed with the meeting, and she indicated that she was. 
However Mr Tayler intervened at that point and said that Ms Mac was sick due to stress, and 
that he must know that. Mr Thompson replied that BOQ had never been informed before that 
Ms Mac was suffering from stress. After Ms Mac confirmed again that she was fit to proceed 
with the meeting, Mr Thompson described the process he intended to go through, and began 
to refer to the matters in his dossier (which he evidently had with him). Ms Mac then 
requested that she be provided with written details of each allegation, and then be given a 
week to formulate her response before a further meeting. Mr Thompson said that the purpose 
of the meeting was to discuss each of the issues, to which Ms Mac responded that this was 
unfair. Mr Tayler then asked for an adjournment of the meeting so that he and Ms Mac could 
confer. At Mr Tayler’s request, he then had a private discussion with Mr Thompson. 
Following that discussion, it was agreed that the meeting would be adjourned “to allow the 
parties to consider various issues”.

Ms Mac goes off work

[61] On 7 March 2014, Ms Mac’s solicitors, Turner Freeman Lawyers, sent a letter to BOQ 
confirming the adjournment of the meeting of the previous day and that Ms Mac was on sick 
leave due to “acute stress” caused by the PIP process and its surrounding circumstances. On 
10 March 2014, Dr Wilson certified Ms Mac as being unfit for work from 7 March 2014 until 
4 April 2014 inclusive. Ms Mac has not returned to work since that time.

[62] On 3 April 2014 Ms Locke sent Ms Mac an email in which, among other things, she 
requested authorisation from Ms Mac for BOQ to access her medical records to assess her 
fitness for work. Ms Mac’s solicitors responded the following day by email confirming that 
Ms Mac was “affected emotionally by the actions of the Bank in putting her through an 
unnecessary PIP process” and stating that because of her distress and need to regain her 
fitness for work all communications to her should be directed to them. The email also said 
that a response to the authorisation request would be provided after Ms Mac had attended a 
further medical appointment.

[63] On 7 April 2014 Dr Wilson certified Ms Mac as unfit for work until 9 May 2014. On 
14 April 2014 Ms Locke sent an email letter to Ms Mac’s solicitors advising, among other 
things, that the PIP process would need to resume upon Ms Mac returning to work, and again 
seeking consent for her to liaise with Ms Mac’s medical practitioners. On 5 May 2014 Ms 
Mac gave written consent for BOQ to contact Dr Wilson and access her medical records.

[64] On 9 May 2014 Dr Wilson certified Ms Mac as unfit for work until 6 June 2014. The 
same day, Ms Locke sent Ms Mac’s solicitors a letter requesting that Ms Mac attend an 
appointment with an independent psychiatrist. On 12 May 2014 Ms Mac’s solicitors sent 
BOQ a letter, addressed to Mr Thompson, setting out her position with respect to the PIP 
process and requesting, among other things, that BOQ provide written particulars of the 
performance matters which had led to the implementation of the PIP and the alleged breaches 
of the PIP. Mr Thompson acknowledged that he would have received the letter, but had no 
specific memory of it, and may have passed it on to HR since he was no longer dealing with 
Ms Mac at this point in time. Ms Mac’s solicitors never received any reply to the letter. 

[65] On 13 May 2014, Ms Mac’s solicitors wrote to Ms Locke confirming that she would 
attend an independent medical examination as requested, and on 16 May 2014 her solicitors 
sent Ms Locke a further authority to release medical records as requested. On 6 June 2014 Dr 








[2015] FWC 774

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Wilson certified Ms Mac as being unfit for work until 6 July 2014, and on 4 July 2014 Dr 
Wilson further certified Ms Mac as being unfit for work until 4 August 2014.

[66] In a letter dated 13 June 2014 addressed to Dr Wilson, Ms Locke asked Dr Wilson, 
among other things, to answer a series of questions which were set out concerning Ms Mac’s 
diagnosis, treatment and prognosis. Dr Wilson handwrote answers to those questions on 22 
June 2014 and returned them to Ms Locke. Some of Dr Wilson’s answers included the 
following:

 “Amie reports that she was assessed as ‘meets expectations’ at the end of 2013, then 
in January she was told that she was on another PIP”;

 “When she asked what the problem was with her work she received no answers”;

 “Amie feels that she is being bullied by her managers ...”;

 “If the Bank could provide in clear written form - what it feels is wrong with Amie’s 
performance then healing could start to take place”;

 “Now she needs a plan of action to ready her for return to work  ... this needs ... clear 
explanation from the Bank about where she has failed, mediation - working with her 
solicitor, acknowledgement that she is medically unwell and unfit for work”;

 “She will not communicate directly when she feels that she is being bullied”;

 “She cannot recommence a PIP when no one has told her what the problem is”;

 “She is too fragile to return to a workplace which she sees as bullying ... This all 
needs to be sorted out before we do a return to work program”; and

 “Depression takes time to settle and there needs to be a supportive workplace”.

[67] It is clear from Dr Wilson’s answers that Ms Mac at this point of time was a long way 
from being fit for work and was not in a position to re-engage in direct communication with 
BOQ personnel. It must also be said that a number of the statements concerning BOQ’s 
alleged failure to identify what were Ms Mac’s shortcomings in performance, which no doubt 
reflect what Ms Mac told Dr Wilson, are simply not correct. I do not consider, for example, 
that there was a reasonable basis for the proposition that “no one has told her what the 
problem is”. This, I think, reflects an inability on the part of Ms Mac to accept the validity of 
any criticism of her performance rather than any failure to properly communicate that 
criticism to her.

[68] On 19 June 2014 Ms Mac attended an independent psychiatric examination conducted 
by Dr Nicholas Jetnikoff, a consultant psychiatrist, which had been arranged by BOQ. Dr 
Jetnikoff prepared a report arising from this examination dated 30 June 2014. In that report, 
Dr Jetnikoff gave the following diagnosis:

“...There is anxiety condition with depressive features specifically related to exposure 
[to] work. This diagnosis is adjustment disorder with anxiety and depressed mood 
present since approximately December 2013 in relation to perceived unfair treatment 








[2015] FWC 774

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in the workplace. The issue relates to anxiety and paranoia. In my opinion Ms Mac is 
likely to experience a high degree of these in a return to work without any addressing 
of her concerns. 

As such her attendance without some sense of understanding of what she will be 
facing is going to be unreliable and I believe she will have panic attacks and a fear of 
victimisation. This is also conceivable with the appropriate information being 
furnished as she has requested. She would still suffer some degree of apprehension 
which may take some time to subside and ultimately I suspect she will have a strong 
desire to work in an alternate area.”

[69] Dr Jetnikoff gave the following prognosis:

“...Prognosis is guarded at this stage but it is conceivable that with some careful 
handling of her request and a positive negotiation of how to return to work and 
complete a performance improvement plan, that she may in fact have a good outcome 
satisfactory to both herself and the employer.”

[70] In answer to a question concerning how Ms Mac’s medical condition would affect her 
ability to perform her role and duties, Dr Jetnikoff said:

“Ms Mac’s issue relates to anxiety and a fear of victimisation with a belief that she has 
been targeted by her previous manager. This relates to her perception that she has had 
discriminatory treatment with respect to her performance. She has had no ability to 
integrate the information provided to this point to satisfaction that will explain why 
she has been provided performance management. In other words she does not see her 
performance having been substandard to the point where this performance 
management required implementation. This may need some direct counselling and if 
she is asking for further information along those lines I suggest it will need to be 
consistent and clear in its delivery. This would benefit the whole process proceeding.

She has an element of paranoia and a belief that her previous manager disliked her. 
This is colouring her perception; sticking to direct clear measures of performance 
indicators would be strongly recommended. She would otherwise feel as though she is 
returning to work without an understanding of why she is being performance managed 
and as such would not have any sense of control about how to navigate the process 
successfully. I suspect ultimately if that was the case she would be unwilling to 
proceed.” 

[71] On 3 July 2014, Ms Mac’s application for orders to stop bullying was filed in the 
Commission. On 23 July 2014, Ms Mac’s lawyers sent a letter to the solicitors acting for 
BOQ in relation to this application which, among other things, invited BOQ to provide 
particulars of the non-performance which justified the PIP process. BOQ did not respond to 
this invitation.

[72] Dr Wilson provided further certificates indicating Ms Mac’s unfitness for work for 
periods extending until 1 October 2014. On 2 October 2014 she provided a certificate 
indicating that Ms Mac would be unfit for work until 8 October 2014, but would thereafter be 
fit for a graduated return to work with a suggestion of starting with four hours per day. That 
certificate was sent by Ms Mac’s solicitors to BOQ’s solicitors together with a request for 








[2015] FWC 774

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BOQ to respond concerning Dr Wilson’s proposal for a return to work. On 10 October 2014 
the solicitors for BOQ responded in a lengthy letter in which, among other things, it indicated 
that it was not satisfied from Dr Wilson’s certificate that Ms Mac was in fact fit to return to 
work, and that she should be the subject of a further assessment by a psychiatrist such as Dr 
Jetnikoff. The letter also responded to a proposal advanced by Ms Mac’s solicitors in a letter 
dated 1 September 2014, and rejected it.

[73] As at the time of the hearing in November 2014, no arrangements had been agreed for 
Ms Mac to return to work. Dr Wilson’s opinion of Ms Mac’s state of health at the time was 
that she had made a “steady recovery” but that she was concerned that if the PIP was raised 
immediately upon Ms Mac’s return to work, Ms Mac might revert back to the state that she 
had previously been in. Ms Locke’s evidence at the hearing was that the issue of Ms Mac’s 
return to work had been escalated to her manager, Mr Jason Rogers, and that no action had yet 
been taken to initiate a return to work.

Power to make anti-bullying orders

[74] The circumstances in which the Commission’s power to make anti-bullying orders is 
enlivened is set out in s.789FF of the FW Act as follows:

(1) If:

(a) a worker has made an application under section 789FC; and

(b) the FWC is satisfied that:

(i) the worker has been bullied at work by an individual or a group 
of individuals; and

(ii) there is a risk that the worker will continue to be bullied at work 
by the individual or group;

then the FWC may make any order it considers appropriate (other than an 
order requiring payment of a pecuniary amount) to prevent the worker from 
being bullied at work by the individual or group.

[75] It can be seen that s.789FF establishes three prerequisites to the exercise of the power 
to make anti-bullying orders:

(1) A worker must have made an application under s.789FC.

(2) The Commission must be satisfied that the applicant worker has been bullied at 
work by an individual or group of individuals.

(3) The Commission must be satisfied that there is a risk that the applicant worker 
will continue to be bullied at work by the individual or group of individuals.

[76] The first prerequisite - which I would read as meaning “in accordance with s.789FC” -
effectively imports the requirement in s.789FC(1) that an application for an order under 
s.789FF may only be made by “A worker who reasonably believes that he or she has been 








[2015] FWC 774

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bullied at work”. “Worker” for the purposes of Part 6-4B is defined in s.789FC(2) to have the 
same meaning as in the Work Health and Safety Act 2011 (WHS Act), but does not include a 
member of the Defence Force. Section 7 of the WHS Act defines what a worker is for the 
purpose of the WHS Act. The main part of that definition is contained in s.7(1), which 
provides:

(1) A person is a worker if the person carries out work in any capacity for a person 
conducting a business or undertaking, including work as: 

(a) an employee; or 
(b) a contractor or subcontractor; or 
(c) an employee of a contractor or subcontractor; or 
(d) an employee of a labour hire company who has been assigned to work 

in the person's business or undertaking; or 
(e) an outworker; or 
(f) an apprentice or trainee; or 
(g) a student gaining work experience; or 
(h) a volunteer; or 
(i) a person of a prescribed class. 

[77] Other subsections of s.7 supplement the definition: s.7(2) includes identified officers 
and employees of the Australian Federal Police; s.7(2A) includes members of the Defence 
Force; s.7(2B) includes persons holding or acting in offices created by a law of the 
Commonwealth or a law of a Territory (other than the ACT, the Northern Territory and
Norfolk Island); s.7(2C) includes persons who constitute or act as the person constituting a 
public authority; s.7(2D) includes persons who are or act as a member or deputy member of a 
public authority; s.7(2E) includes persons who are or act as a member or deputy member of a 
body established by or under an Act for a public authority for a purpose associated with the 
performance of the functions of the public authority; and s.7(2F) includes persons of a class 
who engage in the activities or perform the acts specified in s.7(2G) and who are declared by 
the Minister by an instrument in writing to be workers for the purposes of the WHS Act. 
These extensions of the definition in s.7(1) of the WHS Act would all be caught by the cross-
referential provision in s.789FC(2) of the FW Act and thus be subject to Part 6-4B of the FW 
Act except members of the Defence Force.

[78] One difficulty with the drafting of Part 6-4B lies in s.789FB, which provides that “In 
this Part, employee and employer have their ordinary meanings”. The words “employee” and 
“employer” are nowhere used in the text of Part 6-4B (except in s.789FB itself), and the 
importation of the WHS Act definition of “worker” makes it clear that Part 6-4B is not 
confined in its operations to employment relationships, but rather seeks to embrace all those 
who might be performing work for a business or undertaking in whatever capacity. Striving to 
give s.789FB some work to do, it may perhaps be a confirmatory provision that, insofar as 
Part 6-4B applies to employees and their employers, it is not confined by the definitions of 
“national system employee” and “national system employer” in ss.13 and 14 respectively of 
the FW Act.

[79] An applicant under s.789FC must not only be a worker but must be one who 
“reasonably believes that he or she has been bullied at work”. The expression “reasonable 
belief” and similar expressions are utilised in a wide variety of contexts by the statutory and 
common law. It is clear from cases decided in those differing contexts that not only must the 






http://www5.austlii.edu.au/au/legis/cth/consol_act/whasa2011218/s4.html#volunteer
http://www5.austlii.edu.au/au/legis/cth/consol_act/whasa2011218/s4.html#person_conducting_a_business_or_undertaking
http://www5.austlii.edu.au/au/legis/cth/consol_act/whasa2011218/s4.html#person_conducting_a_business_or_undertaking
http://www5.austlii.edu.au/au/legis/cth/consol_act/whasa2011218/s4.html#person_conducting_a_business_or_undertaking
http://www5.austlii.edu.au/au/legis/cth/consol_act/whasa2011218/s4.html#worker


[2015] FWC 774

21

requisite belief be actually and genuinely be held by the relevant person, but in addition the 
belief must be reasonable in the sense that, objectively speaking, there must be something to 
support it or some other rational basis for the holding of the belief and it is not irrational or 
absurd. For example, in the context of the Federal Court rules concerning applications for 
preliminary discovery, which require the holding by the applicant of a reasonable belief that 
that there may be a right to obtain relief against another person not presently a party to a 
proceeding in the Court, it has been held that “there must be some tangible support that takes 
the existence of the alleged right beyond mere ‘belief’ or ‘assertion’ by the applicant”2 or that 
“there must be some evidence that inclines the mind towards the matter of fact in question”.3

In relation to a NSW statutory provision prohibiting legal practitioners from providing legal 
services on a claim or defence of a claim for damages unless the practitioner reasonably 
believed that the claim or defence had reasonable prospects of success, it has been held that 
the practitioner’s belief that there was material which justified proceeding will not be 
reasonable if it “unquestionably fell outside the range of views which could reasonably be 
entertained”.4 In relation to the concept of a “reasonable hypothesis”, it has been held that in 
order to be a reasonable one a hypothesis must be rationally based and possess some degree of 
acceptability or credibility, and must not be irrational, absurd or ridiculous.5 These examples 
all illuminate the way in which the Commission should approach the task of considering 
whether the applicant worker has the necessary reasonable belief such as to confer standing to 
make an application under s.789FC.

[80] It can be anticipated that in most cases it will not be in dispute that the applicant 
reasonably believes he or she has been bullied at work such as to permit the making of an 
application under s.789FC(1), and the Commission will be able to find without difficulty that 
the first prerequisite in s.789FF(1) is satisfied. I cannot identify any decided anti-bullying 
case to date in which the making of an application under s.789FC(1) was put in issue. 
However in this case the respondents have, in their Points of Defence, contended that Ms 
Mac’s belief that she had been bullied at work was not, objectively, reasonable, and 
accordingly her application was beyond the Commission’s jurisdiction.6 Accordingly it is 
necessary for me to give more detailed consideration to this issue.

[81] The second prerequisite, as earlier stated, requires the Commission to be satisfied that 
the applicant worker has been “bullied at work” by an individual or a group of individuals. 
The expression “bullied at work” is defined in s.789FD 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;

                                               
2 Reeve v Aqualast Pty Ltd [2012] FCA 679 at [65]
3 GlaxoSmithKline Australia Pty Ltd v Pharmacor Pty Ltd [2014] FCA 1202 at [44]
4 Lemoto v Able Technical Pty Ltd & 2 Ors (2005) 63 NSWLR 300 at [132] per McColl JA, with whom Hodgson and Ipp 
JJA agreed, quoting Medcalf v Mardell [2003] 1 AC 120 at [40] per Lord Steyn.
5 Bushell v Repatriation Commission (1992) 175 CLR 408 at 428 per Brennan J.
6 Points of Defence paragraphs 4(a), 5.








[2015] FWC 774

22

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.

[82] A number of elements in the above definition may be identified. The first element is 
that the relevant bullying behaviour towards the applicant worker must occur while the 
worker is “at work in a constitutionally-covered business”. The concept of a “constitutionally-
covered business” is the mechanism by which Part 6-4B is related to heads of Commonwealth 
legislative power in the Constitution. Its meaning is explained in s.789FD(3). That subsection 
requires that a “person conducts a business or undertaking” within the meaning of the WHS 
Act. The definition of that expression is contained in s.5 of the WHS Act. It is not necessary 
to set it out here.  Section 789FD(3) also requires either that the person conducting the 
business or undertaking be of one of the types set out in s.789FD(3)(a), or that the business be 
conducted principally in any of the types of locations specified in s.789FD(3)(b).

[83] The difficult question of when a worker is “at work” in a constitutionally-covered 
business was recently considered at length in the Full Bench decision in Bowker v DP World 
Melbourne Limited & Ors.7 The conclusions reached by the Full Bench were as follows:

“[48] We have concluded that the legal meaning of the expression ‘while the worker is 
at work’ certainly encompasses the circumstance in which the alleged bullying 
conduct (ie the repeated unreasonable behaviour) occurs at a time when the worker is 
‘performing work’. Further, being ‘at work’ is not limited to the confines of a physical 
workplace. A worker will be ‘at work’ at any time the worker performs work, 
regardless of his or her location or the time of day. As we have mentioned, the focal 
point of the definition is on the worker (ie the applicant). The individual(s) who 
engage in the unreasonable behaviour towards the worker need not be ‘at work’ at the 
time they engage in that behaviour.

                                               
7 [2014] FWCFB 9227








[2015] FWC 774

23

[49] While a worker performing work will be ‘at work’ that is not an exhaustive 
exposition of the circumstances in which a worker may be held to be at work within 
the meaning of s.789FD(1)(a). For example, it was common ground at the hearing of 
this matter that a worker will be ‘at work’ while on an authorised meal break at the 
workplace and we agree with that proposition. But while a worker is on such a meal 
break he or she is not performing work. Indeed by definition they are on a break from
the performance of work. It is unnecessary for us to determine whether the provisions 
apply in circumstances where a meal break is taken outside the workplace.

[50] In our view an approach which equates the meaning of ‘at work’ to the 
performance of work is inapt to encompass the range of circumstances in which a 
worker may be said to be ‘at work’.

[51] It seems to us that the concept of being ‘at work’ encompasses both the 
performance of work (at any time or location) and when the worker is engaged in 
some other activity which is authorised or permitted by their employer, or in the case 
of a contractor their principal (such as being on a meal break or accessing social media 
while performing work).”

[84] The Full Bench rejected a submission that conduct occurs “at work” merely because it 
has a substantial connection to work.8 It went on to recognise the difficulty in delineating the 
boundaries of what is meant by the words “at work” in s.789FD(1)(a), saying that that the 
approach to this should be developed over time on a case by case basis9, and then said:

“[53] In most instances the practical application of the definition of ‘bullied at work’ in 
s.789FD will present little difficulty. But there will undoubtedly be cases which will be 
more complex, some of which were canvassed during the course of oral argument. For 
example, a worker receives a phone call from their supervisor about work related 
matters, while at home and outside their usual working hours. Is the worker ‘at work’ 
when he or she engages in such a conversation? In most cases the answer will be yes, 
but it will depend on the context, including custom and practice, and the nature of the 
worker’s contract.”

[85] This case raises a complex issue of this nature, since Ms Mac’s Points of Claim allege 
that a number of communications between certain of the respondents and herself (or her 
solicitors) after she went off work because of illness constituted instances of bullying 
behaviour, and the respondents in their Points of Defence deny that this constituted bullying 
at work because, amongst other reasons, Ms Mac was not at work when the bullying 
behaviour occurred. I will deal with this issue later to the extent that it is necessary to do so.

[86] The next element in the s.789FD definition is that an “individual” or “a group of 
individuals ... repeatedly behaves unreasonably towards the worker or a group of workers of 
which the worker is a member ...”. Under s.2B of the Acts Interpretation Act 1901 (Cth) the 
word “individual” in an Act refers to a natural person unless a contrary intention is indicated. 
There is nothing in section 789FD or any provision of Part 6-4B which suggests that bullying 

                                               
8 Ibid at [46]-[47]
9 Ibid at [52]








[2015] FWC 774

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at work is something which can be engaged in by a corporation. There is no stated restriction 
upon which individuals may engage in the relevant behaviour; as was pointed out in Bowker:

“[31] ...The individuals engaging in the unreasonable behaviour need not be workers, 
for example they could be customers of the business or undertaking in which the 
applicant works. Nor do the relevant statutory provisions contain any requirement for 
these individual(s) to be ‘at work’ at the time they engage in the unreasonable 
behaviour which the applicant contends constitutes bullying.”

[87] The requirement for repeated unreasonable behaviour is clearly a core element of Part 
6-4B. The Explanatory Memorandum to the Fair Work Amendment Bill 2013 through which 
Part 6-4B was enacted discloses that the definition of bullying at work in s.789FD, including 
this element, reflected a recommendation for such a definition contained in the report of the 
House of Representatives Standing Committee on Education and Employment “Workplace 
Bullying - We just want it to stop”.  In referring to that report, the Explanatory Memorandum 
said:

“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.”

[88] In Re SB10, the Commission (Hampton C) discussed the requirement for repeated 
unreasonable behaviour in the following terms:

“[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.

[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.”

[89] I respectfully agree with those statements, but I would add three further observations 
about the interpretation and practical application of the expression “repeatedly behaves 
unreasonably” in s.789FD(1)(a). First, the expression falls within a definition provision. The 
function of a legislative definition, as was pointed out by McHugh J in Kelly v R11, is not to 
enact substantive law, but to provide aid in construing the statute. A definition provision is 
therefore not to be interpreted in isolation and thereby given a meaning which negates the 

                                               
10 [2014] FWC 2104
11 (2004) 218 CLR 216 at [84] and [103]








[2015] FWC 774

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evident policy or purpose of a substantive enactment. Part 6-4B has the evident purpose of 
establishing a mechanism by which the bullying of workers at work may be stopped. In 
interpreting, and applying, the expression “repeatedly behaves unreasonably” as it appears in 
s.789FD(1)(a), the concept of repeated unreasonable behaviour is not to be approached in a 
manner which divorces it from that purpose. The subject matter is bullying at work, and that 
must be borne steadily in mind in any consideration as to whether particular behaviours are 
unreasonable for the purpose of s.789FD(1)(a). A consideration of unreasonable behaviour 
which loses sight of the objective and subject matter of Part 6-4B may lead to the provisions 
not achieving their intended purposes, or being used for a purpose that was not intended.

[90] The second observation is that unreasonableness and its converse, reasonableness, are 
familiar legal concepts applicable in a range of diverse contexts. In Giris Pty Ltd v Federal 
Commissioner of Taxation12 Windeyer J said: “It is, of course, true that, as a measure in fact 
of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the 
common law...”. Where, in an anti-bullying case such as this one, the requisite repeated 
unreasonable behaviour towards the workers is said to be constituted by or include 
unreasonable discretionary managerial decisions directed to that worker, some useful 
guidance may be obtained in assessing whether the definitional standard in s.789FD(1)(a) is 
met from decisions concerning judicial review of administrative discretionary decision-
making. In Minister for Immigration and Citizenship v Li13 the High Court considered the 
standard of unreasonableness applicable to such decision-making. The plurality (Hayne, 
Kiefel and Bell JJ), in considering the well-known formulation of unreasonableness stated in 
Associated Provincial Picture Houses Ltd v Wednesbury Corporation14, said that the legal 
standard of unreasonableness “should not be considered as limited to what is in effect an 
irrational, if not bizarre, decision - which is to say one that is so unreasonable that no 
reasonable person could have arrived at it”.15 They concluded their analysis by saying: 
“Unreasonableness is a conclusion which may be applied to a decision which lacks an evident 
and intelligible justification”.16 That formulation provides a useful yardstick for the 
application of the provision in a case such as this one. 

[91] The third observation is that in order for conduct to be reasonable, it does not have to 
be the best or the preferable course of action. In Bropho v Human Rights & Equal 
Opportunity Commission17, in interpreting the word “reasonably” as it appeared in s.18D of 
the Racial Discrimination Act 1975 (Cth), French J (as he then was) said:

“[79] ... It imports an objective judgment. In this context that means a judgment 
independent of that which the actor thinks is reasonable. It does allow the possibility 
that there may be more than one way of doing things ‘reasonably’. The judgment 
required in applying the section, is whether the thing done was done ‘reasonably’ not 
whether it could have been done more reasonably or in a different way more 
acceptable to the court.”

                                               
12 (1969) 119 CLR 365 at 383
13 (2013) 249 CLR 332
14 [1948] 1 KB 223
15 (2013) 249 CLR 332 at [68]
16 Ibid at [76]
17 (2004) 135 FCR 105








[2015] FWC 774

26

[92] In considering whether there has been unreasonable behaviour by an individual or 
group of individuals, it will of course be necessary for the Commission to determine whether 
the alleged behaviour actually occurred. Once the Commission has made the necessary 
findings of fact about the behaviour, it can then determine whether the behaviour was 
unreasonable.

[93] The final element in the s.789FD(1) definition is that the relevant behaviour “creates a 
risk to health and safety”. In relation to this element, I respectfully agree with the following 
analysis of Commissioner Hampton in Re SB18, which is supported by authorities (cited by the 
Commissioner) concerning analogous provisions in NSW workplace health and safety 
legislation:

“[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. 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. 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.” 

[94] It is clear that it is not necessary for an applicant to demonstrate that he or she has 
suffered an actual detriment to health or safety - that is, actual illness or injury - in order to 
demonstrate the necessary risk. However, the existence of such an illness or injury may be 
relied upon as a manifestation of the necessary risk, provided of course that the requisite 
causal link to the unreasonable behaviour at work has been established.

[95] Section 789FD(2) is loosely modelled upon provisions in Australian workers’ 
compensation statutes which exclude employers’ liability for certain workplace injuries 
caused by reasonable management action.19 In the context of s.789FD as a whole, the 
subsection does not operate as an exclusion as such but only operates (as expressly stated) to 
avoid doubt, since it is clear that reasonable management action undertaken in a reasonable 
manner would not constitute unreasonable behaviour under s.789FD(1)(a) in the first place. 
However it does serve to provide guidance in the interpretation and application of the 
unreasonable behaviour element of s.789FD(1)(a) in circumstances where an applicant alleges 
that management action such as performance management, disciplinary action, allocation of 
work, restructuring of the workplace and employer directions constitutes bullying. In Re SB 
there is a detailed exegesis of this provision, based on authorities concerning analogous 
workers’ compensation decisions, with which I respectfully agree but which it is not 
necessary to set out here.20

Consideration

                                               
18 [2014] FWC 2104
19 See e.g s.5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth); s.11A of the Workers Compensation Act 1987 

(NSW)
20 [2014] FWC 2104 at [47]-[53]








[2015] FWC 774

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[96] In accordance with the above analysis, it is first necessary for me to deal with the 
contested issue of whether Ms Mac “reasonably believes that ... she has been bullied at work” 
(it being not in dispute that Ms Mac was a “worker”). Insofar as Ms Mac has, in her case, 
identified a course of conduct constituted by decisions taken by her managers and supervisors 
which have potentially been to her detriment and have resulted in her suffering mental ill-
health, and in circumstances where that course of conduct is likely to continue if and when 
she returns to work, I consider that her belief that she has been bullied at work is reasonable in 
the sense that it has something tangible to support it and is not entirely irrational, absurd or 
ridiculous. Ms Mac has therefore made an application under s.789FC as required by 
s.789FF(1)(a).

[97] It is then necessary to turn to whether Ms Mac has been bullied at work by Ms Van 
Den Heuvel, Mr Thompson, Ms Hester, Ms Newman and Ms Locke as she alleges. In the first 
instance that requires consideration of whether those individuals have repeatedly behaved 
unreasonably towards Ms Mac in the manner alleged in her Points of Claim. As earlier stated, 
Ms Mac has alleged a very large number of instances of unreasonable behaviour, and I will 
deal with each of these individually in due course, but the matters raised almost entirely 
concern the decision to place Ms Mac on a PIP and, once that decision was taken, the manner 
in which the process was conducted until such time as Ms Mac went off work indefinitely in 
early March 2014. There are, at the tail-end, also some residual issues concerning the way in 
which Ms Mac has been dealt with in respect of a possible return to work.

[98] My overall conclusion is that the decision to place Ms Mac on a PIP, and the manner 
in which the PIP process was implemented, was not unreasonable. Prior to the decision to 
place Mr Mac on a PIP being made, shortcomings in her performance had been identified by 
Ms Mac’s managers over a considerable period of time. Those shortcomings were brought to 
Ms Mac’s attention primarily through the documented PDA process, which was the 
established mechanism by which employees received feedback about their performance and 
were placed on notice if improvements were required. Although Ms Mac was rated as 
“Competent” in her 2012 full-year PDA, significant shortcomings in her performance were 
identified. By the time of the 2013 full-year PDA, most of those shortcomings remained. The 
outcome of the 2013 PDA was an assessment of “Needs development”. In that context, BOQ 
was clearly entitled to take some form of action to achieve an improvement in Ms Mac’s 
performance. The PIP process was the standard means by which this was done within BOQ. It 
was unsatisfactory that BOQ’s Performance Management Policy made no reference to the PIP
process, with the result that the process was not fully transparent to all employees. 
Nonetheless, performance plans which clearly identify targets for improvement, require 
achievement of those targets within identified timeframes, and which provide support and 
feedback to employees to assist them to achieve such targets, are a legitimate and commonly 
used means to improve employee performance. In that context, the use of the PIP process by 
BOQ in relation to Ms Mac was reasonable.

[99] Ms Mac’s case involved the proposition that Ms Hester, Ms Van Den Heuvel, Mr
Thompson, Ms Locke and Ms Newman had bullied her at work - that is, either individually or 
as a group had repeatedly behaved unreasonably towards her - in placing her on a PIP and in 
commencing to implement the PIP. However the overall nature of Ms Mac’s case in this 
respect was somewhat elusive. It was not suggested by her that the identified individuals were 
acting with malice or sinister intent, or had conspired in some way to cause detriment to Ms 
Mac. During a longueur in the hearing, I attempted to draw up a list of the features at least 
some of which one might expect to find in a course of repeated unreasonable behaviour that 








[2015] FWC 774

28

constituted bullying at work. My list included the following: 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. However no instance of 
behaviour of this nature has been alleged against Ms Hester, Ms Van Den Heuvel, Mr
Thompson, Ms Locke or Ms Newman in the Points of Claim. Although Dr Jetnikoff’s report, 
from which I have earlier quoted, indicated that Ms Mac had reported to him some perception 
on her part of victimisation and targeting by Ms Van Den Heuvel, that did not feature in the
evidence that Ms Mac gave at the hearing.

[100] It is not unknown for performance management techniques to be used as a means to 
achieve and justify a predetermined outcome of termination of employment. Conceivably, if 
this occurred, it might be able to be characterised as a series of repeated instances of 
unreasonable behaviour such as to fall within the first limb of the definition of bullying at 
work. However Ms Mac did not submit that Ms Hester, Ms Van Den Heuvel, Mr Thompson, 
Ms Locke or Ms Newman, had either jointly or singly engaged in the PIP process with the 
pre-determined objective of dismissing her from her employment with BOQ. Certainly no 
proposition of that nature was either pleaded in the Points of Claim or put to any of those 
witnesses in cross-examination.

[101] Insofar as any general themes can be discerned in Ms Mac’s case concerning the PIP 
process, there appears to be two. The first is that there were in fact no shortcomings in Ms 
Mac’s performance which were sufficiently serious to justify the decision to impose and 
continue the PIP, and for that reason the PIP process was unreasonable. In this respect, Ms 
Mac in the course of her evidence attempted to give explanations and rebuttals in relation to 
the various instances of underperformance advanced as examples of her general performance 
problems (although there was never a comprehensive rebuttal of all the examples identified, 
including those contained in Mr Thompson’s dossier). For example, in relation to Ms Hester’s 
complaint about Ms Mac’s delay in sending documents to BOQ’s external legal advisors 
concerning advice about BOQ’s obligations under the Privacy Act, Ms Mac said that she 
herself had been waiting for certain documents from St Andrews in the nature of product 
disclosure statements to be sent to her for that purpose, and had informed Ms Hester that this 
was the reason for the delay. Relevant emails (attached to Ms Hester’s witness statement) do 
not tend to support this explanation. Likewise, Ms Mac answered Ms Hester’s criticism of her 
delay in preparing a summary of the Credit Reporting Code by saying that revisions to the 
Code before it was finally published required her to do three different versions, thus causing 
delay. Ms Hester replied to this by saying that she had never seen any earlier drafts prior to 
going on leave, nor had she been sent any email from Ms Mac advancing this explanation for 
the delay. 

[102] To determine whether any of Ms Mac’s explanations fully rebutted the examples of 
underperformance identified would require a micro-analysis of each relevant event which is 
simply not possible on the evidence before me. More importantly, I do not consider that an 
assessment of whether the imposition of the PIP on Ms Mac was unreasonable requires the 
Commission to engage in the process of attempting to form its own judgment as to whether 
her overall performance was satisfactory or not and to substitute its judgment for that of the 
relevant BOQ managers and supervisors. Even if a different and better opinion of Ms Mac’s 
work performance could legitimately be formed on the evidence before me, that would not be 
sufficient to show that the decision to introduce the PIP was unreasonable. What is necessary 








[2015] FWC 774

29

is for Ms Mac to demonstrate that the decision to introduce the PIP lacked any evident and 
intelligible justification such that it would be considered by a reasonable person to be 
unreasonable in all the circumstances. For the reasons already stated, Ms Mac has not 
succeeded in demonstrating this. There was an evident and intelligible justification for the PIP 
based on the earlier identification by experienced persons who managed or supervised her of 
shortcomings in her performance and the assessments she received through the documented 
PDA process.

[103] The second theme was that the implementation of the PIP process was unreasonable 
because of a failure at various stages to provide “examples” or “particulars” of Ms Mac’s 
alleged underperformance. I do not consider that any unreasonableness has been identified in 
this connection in any overall sense. At the initial phase of the PIP, when Ms Mac was being 
informed of the decision to introduce the PIP and having it explained to her, she sought 
“examples” of the unsatisfactory performance alleged against her so that she could 
“understand” the PIP. However, as I have already found, Ms Mac could not reasonably have 
had any difficulty in comprehending the PIP document or process, and did not require
“examples” of her underperformance in order to do so. I think that when Ms Mac said she did 
not “understand” the PIP, she was really expressing her non-acceptance that she had done 
anything to justify its introduction, and that her request for “examples” was for the purpose of 
rebutting them and thus contesting the PIP’s introduction. I do not consider that, in 
circumstances where a reasonable decision to introduce the PIP had already been made, and 
given that the PIP was not in itself a form of disciplinary action, it was so necessary for Ms 
Van Den Heuvel, Mr Thompson or Ms Hester to engage with Ms Mac in this manner that not 
to do so would constitute unreasonable behaviour. 

[104] Subsequently in early March 2014, when a breach of the PIP had been alleged and 
there was a possibility of disciplinary action being taken (albeit that it could only have been a 
written warning at that stage), Ms Mac had a stronger case to be provided with some detail of 
the particular instances in which her performance had been determined to be in breach of the 
PIP. However, I have found that Mr Thompson had intended, at the 6 March 2014 meeting, to 
take Ms Mac through the particular instances of underperformance which he had assembled in 
his dossier and to seek her response to them. That was a reasonable and procedurally fair 
approach to take having regard to the fact that the PIP process was still at an early stage. Ms 
Mac’s complaint was that she was not to be provided with particulars of the instances of 
underperformance in advance in writing and then given a period of time in which to respond. 
Although that is undoubtedly one way in which the process could have been conducted, it was 
not the only reasonable way. BOQ may reasonably have considered that this would inject a 
degree of formality and technicality into a process that was intended to improve Ms Mac’s 
performance, not punish her. There was no unreasonableness in this respect.

[105] I will now turn to the specific instances of unreasonable behaviour pleaded by Ms Mac 
in her Points of Claim. Those relating to the introduction of the PIP and the manner in which 
it was implemented were set out in paragraphs 77(a)-(x) and 111(a)-(k) of the Points of 
Claim. Set out below is each pleaded instance of unreasonable behaviour in this respect (in 
italics) and my specific conclusion in relation to it. Those specific conclusions are 
supplementary to the overall conclusions I have already stated, and for that reason can in most 
cases be shortly expressed.

77(a) It was unreasonable for Ms Van Den Heuvel to draft the PIP when she was no longer 
the applicant's manager.








[2015] FWC 774

30

[106] This contention was abandoned by Ms Mac in closing submissions.

77(b) It was unreasonable for Ms Van Den Heuvel to draft the PIP when she knew or ought 
to have known that the applicant had previously complained about the actions of Ms Van Den 
Heuvel in requiring her to complete personal timesheets and the June performance review.

[107] This contention was also abandoned by Ms Mac in closing submissions.

77(c) It was unreasonable for Ms Van Den Heuvel and/or Mr Thompson not to provide the 
applicant with an opportunity to respond to any allegations of continued underperformance 
prior to the PIP being implemented.

[108] Ms Mac had been given an opportunity to respond to the identified difficulties with 
her performance at the 2012 and 2013 PDA meetings. On 30 October 2013 Ms Van Den 
Heuvel clearly communicated the nature of the performance difficulties, identified ways to 
overcome them, and foreshadowed the introduction of a performance plan. There was no 
reasonable basis for Ms Mac to consider (as she did) that the identified issues had been 
resolved. In those circumstances, and taking into account as previously discussed that a 
genuine performance improvement process does not constitute disciplinary action, I do not 
consider that it was unreasonable for Ms Mac not to be given yet another opportunity to
respond to (and address) the identified performance difficulties before a decision to 
implement the PIP was made.

77(d) It was unreasonable for Ms Van Den Heuvel and/or Mr Thompson to implement the 
PIP process in circumstances where the applicant's individual performance was rated as 
meeting expectations in the document "Factor Evidence - Sep 2013".

[109] The moderated outcome of the 2013 full-year PDA was that Ms Mac was rated as 
“Needs development”. It was not unreasonable in that circumstance for the PIP process to be 
implemented.

77(e) It was unreasonable of Ms Van Den Heuvel and/or Mr Thompson to implement the 
PIP process when no such process existed and nor was it documented in the first respondent's 
policies and/or procedures at the time.

[110] Although it was unsatisfactory that the PIP process was not explained or even referred 
to in BOQ’s Performance Management Policy, Ms Locke’s evidence established that the PIP 
process was well-established in the business and was the usual means to respond to persistent 
performance issues on the part of employees. The implementation of the PIP by Ms Van Den 
Heuvel and Mr Thompson was undertaken on advice from Ms Locke as an HR specialist. 
Accordingly I do not consider their conduct to have been unreasonable in the identified 
respect.

77(f) It was unreasonable of Ms Van Den Heuvel and Mr Thompson to implement the PIP 
process in breach of the first respondent's performance management policy as at 10 January 
2014 which required that any performance management process must be procedurally and 
substantively fair.








[2015] FWC 774

31

[111] This allegation appears to be a re-formulation of that in paragraph 77(c), namely that 
there should have been some further opportunity for Ms Mac to respond to allegations of 
continued underperformance after 30 October 2013 and before the introduction of the PIP. I 
do not consider that procedural or substantive fairness required this to be done for the reasons 
explained.

77(g) It was unreasonable of Ms Van Den Heuvel and/or Mr Thompson in circumstances of
alleged unreasonable performance to not have properly implemented a PIP process 
immediately after the September performance review.

[112] This allegation appears to be to the effect that the PIP was not implemented soon 
enough. Having regard to the facts that the final outcome of the 2013 full-year PDA was not 
communicated to Ms Mac until 30 October 2013, that there was to be a handover from Ms 
Van Den Heuvel to Mr Thompson at the end of November 2013, and that preparation of the 
PIP required extensive consultation with Ms Locke and the finalisation of the relevant 
documentation, I do not consider that the commencement of the PIP process in early January 
2014 was unreasonable.

77(h) It was unreasonable of Ms Van Den Heuvel and/or Mr Thompson to not have provided 
any feedback to the applicant as to alleged underperformance (which is denied) in the 4 
months between the September performance review meeting and the creation of the PIP.

[113] As just stated, it was not until 30 October 2013 that Ms Mac was informed of the 
outcome of the 2013 full-year PDA by Ms Van Den Heuvel. Ms Mac’s performance problems 
were clearly identified at that meeting, and, as I have found, that there was no reasonable 
basis for Ms Mac to leave that meeting thinking that those problems had been resolved. The 
decision to place Ms Mac on a PIP was taken at around that time, and it was foreshadowed at 
the 30 October 2013 meeting. I have already dealt with the reasons as to why the 
commencement of the implementation of the PIP did not occur until early January 2014. I do 
not consider that the alleged unreasonable behavior as pleaded actually occurred, in that the 
reference to “4 months” is wrong, nor do I consider that it was unreasonable for there not to 
have been some further feedback about Ms Mac’s performance between 30 October 2013 and 
the commencement of the PIP.

77(i) It was unreasonable for Ms Van Den Heuvel and/or Mr Thompson to allege 
underperformance in areas which had not previously been the subject of discussion between 
Ms Van Den Heuvel, Mr Thompson and the applicant, namely:

Specific Area 1 - Preparing user friendly legal advice.
Specific Area 2 - Be proactive and provide targeted, focused advice which identifies 
the key issues and provides clear solutions.
Specific Area 4 - Assessing the amount of work involved in a matter to increase work 
output.
Specific Area 5 - Collaboration.

[114] I do not accept the “Specific Areas for development” identified in the PIP had not 
previously been discussed with Ms Mac. Although as framed above they may have appeared 
to be new, the further details provided in the PIP in relation to the “Coaching/Training or 
Action Required” column makes it clear that they were revisiting issues previously raised. 
Thus, for example, “Preparing user friendly legal advice” included a requirement to “Avoid 
overworking matters” - something which Ms Mac had herself identified as a problem. “Be 








[2015] FWC 774

32

proactive …” included “…move projects forward by thinking about the next steps required 
and also working backwards from what is required to be delivered”. This was referred to 
specifically in the 2013 full-year PDA. Specific area 4 was concerned with time management, 
which had been raised with Ms Mac many times. “Collaboration” included “Proactively 
assist other members of the Legal department … without prompting”; this was again 
specifically raised in the 2013 full-year PDA. Accordingly I do not consider that the alleged 
unreasonable behavior actually occurred. In any event, even if the matters had not been 
discussed before, if Ms Van Den Heuvel and Mr Thompson considered these to be genuine 
performance problems (which I am satisfied they did), I do not consider it to have been 
unreasonable to include them in the PIP.

77(j) It was unreasonable for Ms Van Den Heuvel and/or Mr Thompson not to provide 
specific examples supporting the alleged underperforming areas 1 to 5 contained in the PIP 
at or before the meeting on 10 January 2014.

[115] I consider, having regard to the history of the way in which Ms Mac’s performance 
issues had been identified to her over a considerable period of time, that it was necessary at 
the initial PIP meeting to provide “specific examples” of underperformance. Further, the PIP 
document set out in a clear and self-explanatory way what the difficulties were and what 
action was required to be taken. I consider that there was sufficient information before Ms 
Mac to enable her to understand what the requirements of the PIP were. Further, I note that 
the meeting did not proceed to completion because of the approach Ms Mac took to the 
matters. I am not satisfied that this constituted any unreasonable behavior on the part of Ms 
Van Den Heuvel or Mr Thompson.

77(k) It was unreasonable for Mr Thompson as at 10 January 2014 to allege 
underperformance by the applicant in circumstances where he had not had a reasonable 
opportunity to observe the applicant's work performance as her manager.

[116] It is a misunderstanding of what occurred up to and during the 10 January 2014 
meeting to suggest that, at that time, it was Mr Thompson who was alleging 
underperformance by Ms Mac. He was present as Ms Mac’s new supervisor. The PIP had 
been prepared by Ms Van Den Heuvel with input from others including Ms Hester and Ms 
Locke. The alleged unreasonable behavior did not occur.

77(l) It was unreasonable for Ms Van Den Heuvel and/or Mr Thompson not to provide 
specific examples supporting the alleged underperforming areas 1 to 5 contained in the PIP 
within a reasonable time after the meeting of 10 January 2014.

[117] I reject that this constituted unreasonable behavior for the same reasons identified in 
relation to paragraph 77(j).

77(m) It was unreasonable for Ms Van Den Heuvel and/or Mr Thompson to not provide the 
applicant with specific examples supporting the alleged underperforming areas 1 to 5 
contained in the PIP when the applicant had specifically requested that information on 10 
January 2014.

[118] Ms Mac did not give evidence that she specifically requested specific examples of 
underperformance on 10 January 2014. There was no other evidence of this. The alleged 
unreasonable behavior therefore did not occur.








[2015] FWC 774

33

77(n) It was unreasonable for Ms Van Den Heuvel on 10 January 2014 to advise the 
applicant that the PIP process was an informal one while at the same time stating it could 
lead to the termination of the applicant's employment.

[119] It is difficult to understand the import of this contention. It appears to be more of a 
debating point than one of substance. I have found that Ms Van Den Heuvel said that the 
initial meeting was informal, not the whole PIP process. It was not unreasonable but entirely 
appropriate to advise Ms Mac that a failure to improve performance could possibly lead to 
termination of employment. There was no unreasonable behavior as alleged.

77(o) It was unreasonable of Ms Locke to advise the applicant that HR would not get 
involved in the PIP process in circumstances where Ms Locke knew or ought to have known 
that the applicant felt ambushed by the process and isolated in the workplace.

[120] The PIP process was entrusted to those within Group Legal who were or had been 
responsible for the management and/or supervision of Ms Mac and who had or would have 
direct knowledge concerning her work performance. Advice was sought and received from 
HR at all stages. Ms Mac was allowed to seek information directly from HR about the PIP 
process when she sought to do so. For those reasons, I do not think that any refusal of HR to 
become directly involved in a dispute about the PIP process was unreasonable.

77(p) It was unreasonable for Ms Van Den Heuvel and/or Mr Thompson not to provide
specific examples supporting the alleged underperforming areas 1 to 5 contained in the PIP 
at or before the meeting on 17 January 2014.

[121] This contention is incorrect to the extent that Ms Van Den Heuvel did give some 
specific examples at the 17 January 2014 meeting, which Ms Mac contested. Beyond that, I 
do not consider that Ms Van Den Heuvel or Mr Thompson behaved unreasonably for the 
same reasons as given in relation to paragraph 77(j).

77(q) It was unreasonable for Ms Van Den Heuvel and/or Mr Thompson not to provide 
specific examples supporting the alleged underperforming areas 1 to 5 contained in the PIP 
within a reasonable time after the meeting of 17 January 2014.

[122] For the same reasons as given in relation to paragraph 77(j), I reject this contention.

77(r) It was unreasonable for Ms Van Den Heuvel and/or Mr Thompson to not provide the 
applicant with specific examples supporting the alleged underperforming areas 1 to 5 
contained in the PIP when the applicant had specifically requested that information on 17 
January 2014.

[123] I do not consider that the evidence supports the proposition that Ms Mac “specifically 
requested” that she be provided with “specific examples” concerning the five areas of 
underperformance, although she certainly asked “Where are the deficiencies?”. In any event, I 
reject this contention of unreasonable behavior for the same reasons as in relation to 
paragraph 77(p).








[2015] FWC 774

34

77(s) It was unreasonable for Ms Hester to have sent the email to the applicant on 3 
February 2014 stating that "the details of the underperformance are outlined in the PIP 
document" when they were not.

[124] I consider that there was sufficient information about Ms Mac’s underperformance set 
out in the PIP document to provide a transparent and rational basis for the statement of Ms 
Hester referred to. This was not unreasonable behaviour.

77(t) It was unreasonable for Ms Hester not to provide specific examples supporting the 
alleged underperforming areas 1 to 5 contained in the PIP within a reasonable time after 
receiving the PIP document signed by the applicant.

[125] In the light of the history of Ms Mac having underperformance issues brought to her 
attention including through the PDA process, the contents of the PIP document, and what she 
was told at the 17 January 2014 meeting, I do not consider that Ms Hester engaged in 
unreasonable behavior as alleged.

77(u) It was unreasonable for Ms Hester not to provide specific examples supporting the 
alleged underperforming areas 1 to 5 contained in the PIP within a reasonable time after 
receiving the email from the applicant on 31 January 2014.

[126] I repeat the conclusion and reasons given in relation to paragraph 77(t).

77(v) It was unreasonable of Mr Thompson to inform a key internal client of the applicant, 
Mr Doug Smith, that the applicant was subject to a PIP before seeking feedback about her 
performance.

[127] I do not consider that it was unreasonable for Mr Thompson to explain to Mr Smith 
the reason why he was seeking feedback concerning Ms Mac’s performance. It might have 
been better had he approached this a different way, but that does not make his conduct 
unreasonable.

77(w) It was unreasonable of Mr Thompson to ask leading questions of a key internal client 
of the applicant, Mr Doug Smith, on the assumption that the applicant was underperforming 
in her work when that was not true.

[128] I do not consider that Ms Mac has established that Mr Thompson asked “leading 
questions” of Mr Smith as alleged. 

77(x) It was unreasonable for Ms Newman to send an email to the entire legal department 
criticising the applicant's work.

[129] The allegation that Ms Newman sent such an email was the only basis upon which she 
was involved in the proceedings. Ms Mac did not adduce any evidence whatsoever that any 
such email had been sent to the “entire legal department”. Ms Newman denied it. This 
allegation should never have been made. The alleged unreasonable behavior did not occur.

111(a) It was unreasonable of Mr Thompson to make allegations on 3 March 2014 alleging 
breaches of the ongoing PIP process when the alleged breaches in fact could not reasonably 
be considered breaches of the PIP.








[2015] FWC 774

35

[130] There was no elaboration in submissions upon the basis for this contention. The 
allegations of breach of the PIP contained in Mr Thompson’s letter of 3 March 2014 were 
based on his own recent experience of Ms Mac’s work performance, as well as feedback from 
Ms Hester, Ms Newman and Ms Daley. He had compiled a dossier of examples of poor 
performance. I consider that there was an evident and intelligible basis for the allegation that 
breaches of the PIP may have occurred, and therefore Mr Thompson acted reasonably.

111(b) It was unreasonable of Mr Thompson to make allegations to the applicant on 3 
February 2014 alleging breaches of the ongoing PIP process without providing any or any 
adequate particulars of those alleged breaches.

[131] As earlier indicated, I do not consider in a general sense that it was necessary in the 
implementation of a performance management process to require identified shortcomings in 
performance to be particularised in advance and in writing as if they were a series of 
individual “charges” to which the employee could respond. Mr Thompson’s intention was to 
take Ms Mac through the examples he had in his dossier at the meeting itself, and he informed 
Ms Mac of his intention in this regard in an email in response to Ms Mac’s request for 
particulars. He brought the dossier to the meeting, and would have taken Ms Mac through 
them and sought her response had intervening circumstances not prevented this. In that 
context I do not consider that Mr Thompson’s conduct was unreasonable.

111(c) It was unreasonable of Mr Thompson to refuse to provide particulars of the alleged 
breaches of the PIP process when they were requested by the applicant on 3 March 2014.

[132] I repeat the reasons and conclusion stated in relation to paragraph 111(b) above.

111(d) It was unreasonable of Mr Thompson to write in an email on 4 March 2014 that all 
necessary and relevant information had been provided to the applicant when that was not 
true.

[133] Mr Thompson’s initial letter of 3 March 2014 had identified the two “Specific areas 
for development” in relation to which a breach of the PIP was alleged. That provided an 
evident and intelligible basis for the statement complained about. His conduct was not 
unreasonable.

111(e) It was unreasonable of Mr Thompson to refuse to provide particulars of the alleged 
breaches of the PIP process when they were again requested by the applicant on 4 March 
2014.

[134] I repeat the reasons and conclusion in relation to paragraph 111(b) above.

111(f) It was unreasonable of Mr Thompson to write in a further email on 4 March 2014 
referring the applicant back to his prior email on 4 March 2014 stating that all necessary and 
relevant information had been provided to the applicant when that was not true.

[135] I repeat the conclusion in relation to paragraph 111(d) above.








[2015] FWC 774

36

111(g) It was unreasonable of Mr Thompson to refuse to provide particulars of the alleged 
breaches of the PIP process when they were for the second time requested by the applicant on 
4 March 2014.

[136] I repeat the conclusion in relation to paragraph 111(b) above.

111(h) It was unreasonable of Mr Thompson to refuse to provide particulars of the alleged 
breaches of the PIP process when they were again requested by the applicant on 6 March 
2014.

[137] Mr Thompson did not refuse to provide particulars of the alleged breaches. He 
intended to do so at the meeting. What he refused to do was to provide written details of each 
allegation to Ms Mac and give her a week to formulate a response. That was not unreasonable 
given that the meeting had been called for the very purpose of raising the alleged breaches 
and obtaining Ms Mac’s response. It was not necessary in the circumstances for Mr 
Thompson to acquiesce in the formalistic process proposed by Ms Mac.

111(i) It was unreasonable of Ms Locke to state in an email on 14 April 2014 that the PIP 
process would resume on the applicant's return to work when Ms Locke was aware or ought 
to have been aware that

(i) the PIP process was unreasonably commenced; and/or
(ii) the PIP process was not justified; and/or
(iii) the applicant had disputed the PIP process.

[138] I do not accept that the PIP process was unreasonably commenced or was not justified. 
Ms Mac had taken issue with the PIP process in the meetings concerning that process, but had 
not sought to agitate the issue beyond that point through the dispute procedure. The statement 
made by Ms Locke in the email referred to was sent to Ms Mac’s solicitors, not to Ms Mac 
directly, and was responsive to a statement in an email sent by her solicitors that the PIP 
process was “unnecessary”. In circumstances where the PIP was commenced in response to 
concerns about Ms Mac’s performance that were reasonably founded, it was not unreasonable 
to give an indication that the PIP would need to resume once Ms Mac was fit to return to 
work.

111(j) It was unreasonable of Mr Thompson to refuse to provide particulars of the alleged 
breaches of the PIP process when they were again requested by the applicant's solicitors on 
12 May 2014.

[139] There was no evidence that Mr Thomson “refused” to provide the requested 
particulars. He had no specific memory of the letter and may have simply passed it on to HR 
to deal with, since he was not responsible for dealing with Ms Mac by this time. Thus the 
factual basis of the contention is not made out. In any event, I do not consider that any refusal 
to supply such particulars would have been unreasonable. At this point in time the PIP process 
was not proceeding because of Ms Mac’s illness, communications were being conducted with 
her solicitors, and there was no sign that she would be likely to return to work in the near 
future. The request served no practical purpose at that juncture.

111(k) It was unreasonable of Mr Thompson to refuse to provide particulars of the alleged 
breaches of the PIP process when they were again requested by the applicant's solicitors on 
23 July 2014.








[2015] FWC 774

37

[140] Ms Mac’s solicitors’ letter of 23 July 2014 was sent to BOQ’s lawyers in relation to 
the anti-bullying application lodged on her behalf on 3 July 2014. The letter was not 
addressed to Mr Thompson. There was no evidence that he saw it, let alone refused to provide 
the requested particulars. It was a proper matter for BOQ’s solicitors to deal with given that 
the letter was sent in connection with this litigation. The alleged unreasonable behavior did 
not occur.

[141] Separately from its contentions concerning the PIP process to date, Ms Mac advanced 
a number of contentions concerning unreasonableness in connection with a possible return to 
work by Ms Mac. The contentions appear principally to be directed to the proposition that, if 
and when Ms Mac returns to work, she should not have to face any continuation of the PIP. 
As a general proposition, I do not consider that any requirement for the PIP to continue when 
Ms Mac returns to work is unreasonable. As I have already found, the introduction and 
implementation of the PIP up to the point when Ms Mac went off work because of illness was 
not unreasonable. The performance problems identified in the PIP have not yet been 
addressed. BOQ, and its managers and supervisors in Group Legal, have a legitimate interest 
in ensuring that its solicitors are productive, perform work to BOQ’s required standard as far 
as practicable, and may be subject to reasonable performance management measures where 
shortfalls in performance are identified. I would consider reasonable performance 
management processes to be a normal concomitant of employment, so that if Ms Mac’s health 
is likely to be endangered by any resumption of the PIP process after a return to work, she is 
probably not fit to return to work. I have no reason to think that BOQ would not take a 
reasonable approach to the timing of the resumption of the PIP upon Ms Mac’s return to work 
or would fail to respond to any reasonable requests for further information about the process.

[142] Ms Mac was not certified as fit to return to work until 8 October 2014. By that time, 
this litigation was in full swing, with the parties preparing for hearing. The hearing of Ms 
Mac’s application was, as earlier stated, originally listed to occur on 4-5 November 2014. 
That was postponed, and the hearing before me proceeded on 26-28 November 2014. Having 
regard to that, and the fact that BOQ was faced with unresolved allegations of bullying 
against senior members of Group Legal in relation to their dealings with Ms Mac, I do not 
consider it unreasonable on anyone’s part that Ms Mac’s return to work was not acted upon in 
the period from 8 October 2014 to the time of the hearing.

[143] I will now deal with the specific contentions on this topic advanced in Ms Mac’s Point 
of Claim at paragraphs 111(l), 116 and 120. My conclusions in relation to these are to be read 
together with the general conclusions I have just expressed.  

111(l) It was unreasonable of the first respondent's representative instructing the 
respondent's lawyers not to provide instructions to respond to the return to work proposal 
contained in the applicant's solicitor's letter of 4 September 2014.

[144] I consider that this contention in relation to the “4 September 2014” letter (it was 
actually dated 1 September 2014 but sent on 4 September 2014) was improper and should 
never have been advanced, for the following reasons:

(1) It makes an allegation of bullying against a person (BOQ’s “representative”) 
who is not named and whom, to my knowledge, Ms Mac has not attempted to 
identify let alone have added as a party to the proceedings.








[2015] FWC 774

38

(2) There is no evidence that the unnamed person did not provide instructions in 
respect of the letter of 4 September 2014, and there is positive evidence to the 
contrary. After Ms Mac had advanced this contention in her Points of Claim 
filed on 19 September 2014 (a mere two weeks after the letter had been sent), 
her solicitors in a letter dated 2 October 2014 politely reminded BOQ’s 
solicitors of the proposal contained in the 1 September 2014 letter and 
requested advice as to BOQ’s attitude to the proposal. In a reply email dated 3 
October 2014, the solicitors for BOQ referred to a telephone discussion about 
the proposal which had occurred between the respective solicitors shortly after 
the proposal had been advanced in which further information about the 
proposal had been sought from Ms Mac but had not been forthcoming. BOQ’s 
solicitors subsequently provided a comprehensive response to the proposal in a 
letter dated 10 October 2014 (evidencing that instructions had been obtained 
from the appropriate person in BOQ). All the material evidencing these matters 
is to be found in Ms Mac’s own witness statement. Nonetheless this contention 
was pressed at the hearing.

(3) It is apparent on the face of Ms Mac’s solicitors’ 4 September 2014 letter that 
it contains a proposal for resolution of the dispute underlying this litigation. It 
is effectively an offer of settlement. The proposition that dealings between an 
instructing officer of an employer party to an anti-bullying application and the 
party’s lawyer concerning an offer of settlement made by another party could 
itself constitute an act of bullying at work for the purposes of the application is 
self-evidently absurd.

116 The respondents have unreasonably failed to adequately or at all act on the advice of 
Dr L G Wilson to the extent that:

(a) Return to work will depend on whether the issues can be sorted out with the bank.

(b) The respondent should work through the applicant's solicitors.

(c) The applicant will need a gradual return to work.

(d) If the bank could provide in clear written form what it feels is wrong with Amie's 
performance then healing could start to take place.

(e) The applicant needs a plan of action to ready her to return to work.

(f) Clear explanation from the bank about where she has failed.

(g) Acknowledgement that she is medically unwell and unfit for work.

(h) The applicant cannot recommence a PIP when no one has told her what the problem 
is.

(i) Depression takes time to settle and then needs slow return to a supportive workplace.








[2015] FWC 774

39

[145] It needs initially to be stated that this contention does not make entirely clear what it is 
that “the respondents” have failed to do, let alone identify the particular respondents said to be 
at fault. Dr Wilson’s report was received on 22 June 2014. Ms Mac was not certified fit to 
return to work at that time, or for many months after, so that it was not possible to return Ms 
Mac to work on any basis suggested by Dr Wilson. If it is suggested that “the respondents” 
should have begun re-agitating issues concerning Ms Mac’s underperformance and the PIP 
while Ms Mac was still off work due to mental illness, then I reject that entirely. That would 
clearly have given rise to a significant risk of further damage to Ms Mac’s mental health. It 
may further be noted that Dr Wilson’s advice, to the extent referred to in the contention, was 
based on clear inaccuracies concerning the way in which the PIP process had been conducted 
(noting that it is undoubtedly the case that Dr Wilson was only accurately repeating what Ms 
Mac had told her). For example, the proposition that “no one has told her what the problem 
is” was, as already stated, clearly not correct. I do not consider that there was any 
unreasonable behavior as alleged.

120 The respondents have unreasonably failed to adequately or at all act on the advice of 
Dr Jetnikoff to the extent that:

(a) The applicant is likely to continue to experience a high degree of anxiety and paranoia 
without any addressing of her concerns.

(b) The applicant's attendance at work without some sense of understanding of what she 
will be facing will be unreliable and she will have panic attacks and a fear of 
victimisation.

(c) With some careful handling of the applicant's request and a positive negotiation of 
how to return to work and complete a performance improvement plan the applicant 
may in fact have a good outcome satisfactory to both herself and her employer.

(d) If the applicant is asking for information it will need to be consistent and clear in its 
delivery.

(e) The applicant should be provided with direct clear measures of performance 
indicators.

(f) There is an element of suspiciousness that can only be addressed through a gesture on 
the part of the employer.

(g) Initially it would be beneficial to get the applicant back in the workforce prior to
commencing the PIP.

[146] Again, the import of this contention is not entirely clear. Dr Jetnikoff’s advice (unlike 
Dr Wilson’s) was clearly concerned with the process by which Ms Mac might return to work. 
At the time that Dr Jetnikoff prepared his report, Ms Mac had not been certified as fit to return 
work, so that consideration of how that might occur was not relevant at that time. Dr 
Jetnikoff’s advice did become relevant once Ms Mac was certified as fit for work from 8 
October 2014 onwards, but as I have already explained it was not unreasonable for “the 
respondents” not to deal with Ms Mac’s return to work in the period from that date to the date 
of the hearing.








[2015] FWC 774

40

[147] One common feature of these last three contentions is that no particular individual has 
been identified as responsible for the alleged unreasonable behaviour. That is patently because 
the acts or omissions complained of are, in reality, those of BOQ itself, not any identifiable 
individual. The drafting of these contentions bespeaks of a token attempt to bring the 
impugned conduct within the statutory definition of “bullied at work” but no more than that.

Conclusions

[148] I am not satisfied that Ms Mac was bullied at work by Ms Hester, Ms Van Den 
Heuvel, Mr Thompson, Ms Locke or Ms Newman. That conclusion has been reached on the 
basis that none of the conduct of those individuals alleged to be unreasonable in Ms Mac’s 
Points of Claim was in fact unreasonable. Although it is not strictly necessary for me to do so, 
I also find that their conduct constituted reasonable management action carried out in a 
reasonable manner. That does not, in accordance with the principles I have earlier stated, 
mean that the relevant conduct was in all respects entirely beyond criticism or constituted the 
best human resources practice one might expect in a large and sophisticated employer such as 
BOQ. I have in the course of my reasoning identified some limited shortcomings in this 
respect. However, this did not reach anywhere near the required level of unreasonableness.

[149] In reaching that conclusion, 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”. Nor has it been necessary for me to determine whether all of the pleaded 
instances of behaviour created a risk to health and safety, although clearly those instances 
most closely associated with the implementation of the PIP did create such a risk as 
manifested by Ms Mac’s subsequent mental illness.

[150] Because I am not satisfied that Ms Mac was bullied at work as alleged, there is no 
power to make the orders sought by her, and her application is dismissed.

VICE PRESIDENT

Appearances:

A. Tayler, solicitor for the applicant. 
K. Garner of counsel and A. E. Elliot, solicitor for the respondents.


OF THE FAIR WORK MISSION THE




 



[2015] FWC 774

41

Hearing details:

2014.
Brisbane:
26, 27, 28 November. 

Printed by authority of the Commonwealth Government Printer

Price code G, PR560619

Cases cited by this decision: