Application by Bowker, Sharon - [2015] FWC 7312

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

Sharon Bowker, Annette Coombe and Stephen Zwarts

v
DP World Melbourne Limited T/A DP World; Maritime Union of 
Australia, The, Victorian Branch and Others
(AB2014/1260, AB2014/1261, AB2014/1266)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 16 NOVEMBER 2015

Application for an FWC order to stop bullying; whether applicants bullied at work; whether 
risk of bullying at work; steps taken to mitigate risk of further bullying at work; whether 
further orders appropriate; orders made.

Introduction

[1] Three employees of DP World Melbourne Limited (DP World) employed at its West 
Swanson terminal (WS Terminal) have each made an application for an order to stop bullying 
pursuant to s.789FC of the Fair Work Act 2009 (Cth) (the Act). By their separate applications 
Ms Sharon Bowker, Ms Annette Coombe and Mr Stephen Zwarts (the Applicants) want the 
Fair Work Commission (the Commission) to make a finding and issue a statement to the 
effect that each of them has been bullied at work. In addition, various orders are sought which 
are said to be necessary to prevent further bullying at work of the Applicants. The 
applications have not been joined but have, for convenience, been heard together.

[2] The Applicants have each filed a document containing their Amended Points of Claim 
which sets out the various alleged incidents of unreasonable behaviour on which they rely.
This includes allegations of conduct engaged in by individuals who are, or were, employees 
of DP World, members of the MUA and/or officials of the Maritime Union of Australia
(MUA). For convenience and as appropriate these individuals together with the MUA are 
referred to in this decision collectively as the MUA Respondents.

[3] The unreasonable behaviour complained of began after a complaint was made by 
Ms Coombe to DP World on 13 July 2013 concerning derogatory comments made about her 
by Mr Stewart Bennier, a straddle driver employed by DP World. The circumstances that led 
to Ms Coombe making that complaint, and Ms Bowker becoming involved in the complaint,

2015 FWC 7312

DECISION


E AUSTRALIA FairWork Commission




 



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are set out in the judgment of Jessup J in Maritime Union of Australia v DP World Melbourne 
Ltd1 and for convenience are reproduced below:

‘5. On 17 July 2013, one of the straddle drivers employed by the respondent at the 
terminal, Stewart Bennier, was moved to a different work location without any 
reason, at least that was apparent to him. At his break, he asked one of the foremen 
why he had been moved. That foreman did not know, and was not able to accompany 
Bennier “upstairs” (the euphemism used at the terminal for the management offices) 
to find out. On the foreman’s advice, Bennier then asked another of the respondent’s 
employees, Daniel Madigan, to accompany him. Seeing that Bennier was (and here I 
relate Bennier’s recollection of Madigan’s words) “a little bit fuming angry”, 
Madigan offered to go upstairs himself on Bennier’s behalf to find out what was 
going on. By this stage it appeared to have been established that it was the supervisor, 
Stephen Templar, to whom Madigan would need to speak.

6. Upon his return about 15 minutes later, Madigan told Bennier that Templar was very 
upset that he (Bennier) had changed positions without telling him (Templar). That 
change of position was not the one on 17 July 2013 to which I have referred. It was a 
previous change which, it seems, Bennier had implemented of his own accord. 
Bennier’s response was to refer to the other members of the workforce who had 
regularly changed position, and complained that he appeared to have been the only 
one to have, in effect, got on the wrong side of Templar as a result of it. At this point 
Madigan told Bennier that Templar had expressed the view that he (Bennier) was not 
competent enough to be “working over the crane”, and “you’re not a team player”. 
This must not have been well-received by Bennier, because Madigan then said to him, 
“Look, don’t get upset, just go and do your job and just try to forget about it.”

7. On the following day, 18 July 2013, Bennier and Madigan were in conversation seated 
at a table in the amenities room at the terminal. Referring to Templar, Bennier said, 
“I’m still angry at what he did to me.” It is what Bennier said next that started the ball 
rolling apropos the events which ultimately led to the termination of Johnston’s 
employment. Bennier’s recollection was that he said, still referring to Templar, “how 
dare he call me not a team player when he’s fucking Annette Coombe behind Peter’s 
back”. Coombe was another stevedore in the respondent’s employ. The “Peter” 
referred to by Bennier was Peter Whelan, also a stevedore and believed by Bennier to 
be in, or to have been in, a personal relationship with Coombe, the specific nature of 
which (ie husband, fiancé or similar) Bennier was unaware.

8. Another stevedore who was in the amenities room at the time, Sharon Bowker, 
overhead what Bennier had said to Madigan. She gave evidence. Her recollection was 
that Madigan had told Bennier that Templar had said that he (Bennier) was not a team 
player. Bennier’s response was, “who the fuck does he think he is saying I’m not a 
team player when he’s fucking Annette Coombe?” Bowker’s evidence departs from 
that of Bennier in one material respect only, namely, that Madigan had then said, in 
her hearing, that Templar had accused Bennier of not being a team player. It will be 
recalled that, according to Bennier’s evidence, he had been told about that the 
previous day. This slight discrepancy – on which nothing turns – was not explored in 
the cross-examination of either witness, however, and I am disposed to think that the 
subject might well have been mentioned again by Madigan in the amenities room as 
part of a general, casual, conversation.

                                               
1 [2014] FCA 1321.






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9. According to Bowker’s evidence, when she heard what Bennier said to Madigan about 
Templar, she said to him, “Do you know if that’s true?”, to which Bennier responded, 
“Well, everyone is saying it”. Bowker repeated her question, “Well, do you know if 
it’s true?”, to which Bennier’s response was to shrug his shoulders. According to 
Bowker’s evidence, she then said to Bennier, while pointing her finger at him, “It’s 
not appropriate. It’s not fair that you’re dragging Annette into your problems with 
Stephen Templar. He’s a married man. It’s not fair to her. If you’ve got any issues 
with Stephen Templar, you need to take them upstairs yourself. What you’re doing is 
wrong. What you’re all doing is wrong.” This last comment appears to have been 
directed to the situation, as reported by Bennier, that others in the workplace were 
speaking of Templar and Coombe in the same terms as he had to Madigan. Although 
less elaborate, Bennier’s evidence was consistent with Bowker’s.

10. In her evidence, Bowker said that, after she had upbraided Bennier in the terms I have 
set out, she could “see his demeanour change ... he wasn’t aggressive ... I knew that he 
knew he had done the wrong thing.” Bowker said that she knew Bennier, that he was 
“not a bad person”, and that “he wouldn’t normally talk like that.”

11. On a day which Coombe placed as Sunday 28 July 2013, Bowker saw Coombe in the 
car park as they were arriving at, and departing from, work. Bowker told Coombe 
about the exchange between Madigan and Bennier in the amenities room on 18 July 
2013. She did so because she was concerned that “it would have got back to her and 
maybe not reported accurately”. She related accurately what Madigan and Bennier had 
said. According to Bowker, on hearing this news Coombe rolled her eyes and said, 
“I’m sick of this. I’m over it.” She gave Bowker to believe that every time Templar 
reprimanded somebody, she (Coombe) would get “dragged into it” (Bowker’s words 
in her evidence). According to Bowker, Coombe did not cry, but it was clear that she 
was annoyed.

12. A couple of days later, Coombe telephoned Bowker and told her that she had decided 
to lodge a complaint with management about Bennier’s comments. She wanted to 
know whether Bowker would verify the accuracy of the matter complained of, and 
would be prepared also to verify what had happened if called upon by management to 
do so. Bowker agreed to do this. In her evidence, Coombe said that she complained to 
management because “these comments had been ongoing for two years”. Every time 
she was dealt with in a way that might be perceived as involving favourable treatment, 
such as receiving an overtime shift or a shift extension, she was subjected to crude 
comments about her doings with Templar or others. Further, according to Coombe’s 
evidence, these kind of comments were associated with “behaviours displayed towards 
[her] which [she believed were] consistent with bullying.” Indeed, she said that “the 
behaviours [were] far worse than the rumours.” When she raised her concerns with 
management, she was told that nothing could be done unless she had a witness. 
Bowker’s readiness to support her in a complaint against Bennier gave her the witness 
that she needed.

13. On 31 July 2013, Coombe prepared a written complaint about the comment made by 
Bennier. I do not need to set out the terms of that complaint, as it followed closely 
Bowker’s version of events on 18 July 2013, as set out above. Coombe addressed her 
complaint to Sheryl Pastro, the Human Resources Manager at the terminal, with a 
copy to Vlad Jotic, the Operation Superintendent there. She said that Bennier’s 
comment was false, offensive, slanderous, disrespectful and damaging to the integrity, 
character and reputation of Templar and herself.

14. On 5 August 2013, Jotic required Bowker to meet with him in his office. She went to 
Jotic’s office, where he told her that that there had been a complaint made in relation 








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to a discussion in the amenities room in which she had been involved. Bowker said 
that she understood what Jotic was talking about. Jotic said to her: “This is very 
serious. It has been very upsetting for Annette and Stephen and for his family.” He 
said that she would be called into the office the following day, and that she should 
think about what she was going to do. Bowker said that she would verify the 
complaint, but that she was concerned for Bennier.’2

[4] Thereafter there commenced a series of behaviours engaged in by individuals, or a 
group of individuals, directed towards the Applicants, which on the uncontested evidence of 
the Applicants,3 was repeated unreasonable behaviour that caused a risk respectively to their 
health and safety. Whilst I will not chronicle the conduct engaged in during the period 
between mid-2013 and July 2015, that it happened, is something about which no respondent 
party to these proceedings should be proud.

[5] Mr Zwarts became involved in matters in or about August 2013. Prior to that time, Mr 
Zwarts, a foreman with DP World, had little knowledge about Ms Coombe or Ms Bowker, 
although Ms Bowker worked with Mr Zwarts on the panel at which he was foreman.4 On 
17 September 2013, Mr Zwarts was in attendance with Ms Bowker, as her support person, at 
a meeting held with human resources staff of DP World.5 Ms Coombe also attended the 
meeting.6 At this meeting, Ms Bowker and Ms Coombe discussed with representatives of DP 
World, particular conduct and events that they had experienced following the complaint made 
by Ms Coombe about Mr Bennier.7

[6] On 25 November 2013, Mr Zwarts ceased his membership of the MUA.8 His 
resignation from the MUA seems to have been prompted by his view of the conduct that was 
being directed towards Ms Bowker and Ms Coombe and his perception of the role that 
particular officials and delegates of the MUA had played in that conduct.9

Whether Applicants have been bullied at work by an individual or group

[7] Since Ms Coombe made her complaint about Mr Bennier, she and Ms Bowker say that 
they have been each subjected repeatedly to conduct that is unreasonable behaviour that 
caused a risk respectively to their health and safety, and that the unreasonable behaviour has 
been directed towards each of them while they were at work by an individual or individuals 
(some of whom are able to be identified and others are not), or a group of individuals. The 
particulars of the unreasonable behaviour directed at Ms Coombe and Ms Bowker are set out 
in witness statements prepared by them and which are in evidence in these proceedings.10

[8] Mr Zwarts says that since his involvement which commenced in August 2013, and 
particularly since his resignation from the MUA in late November 2013, he has also been 
subjected repeatedly to conduct that is unreasonable behaviour which caused a risk to his 
health and safety, and that the unreasonable behaviour has been directed toward him while he 
was at work by an individual or individuals (some of whom are able to be identified and 

                                               
2 Ibid at [5][14].
3 Noting the formal denial of the allegations made by the MUA Respondents to which reference is later made.
4 Exhibit 11 at [19].
5 Ibid at [17].
6 Ibid.
7 Ibid at [18].
8 Ibid at [21].
9 Ibid at [26]–[27] and Attachment SHZ–3.
10 See Exhibits 1, 2, 5 and 6.








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others are not), or a group of individuals. The particulars of the unreasonable behaviour 
directed toward Mr Zwarts are set out in his witness statements which are in evidence in these 
proceedings.11

[9] From approximately September 2014 until late June 2015, in the case of Ms Bowker 
and Mr Zwarts, and until early July 2015 in the case of Ms Coombe, the Applicants have been 
on that which is described as on-going special leave.12 Each has had significant periods of 
special leave since July 2013.13 Since the cessation of special leave, each of the Applicants 
has taken various forms of authorised leave.14 The medical evidence as at mid-August 2015 as 
to the Applicants’ fitness to return to work indicates, in respect of Ms Coombe and 
Mr Zwarts, that from a medical and/or psychological point of view each has ‘no restriction in 
returning to full duties of General Stevedore’.15 In respect of Ms Bowker the medical 
evidence indicates:

‘From a medical and psychological point of view Ms Bowker is fit to return to work from the 
date of this report. There are some barriers in relation to her ability to return to work in the 
form of a perception of a lack of safety at work or a lack of support from the management in 
the face of perceived bullying and harassment from Union members. This is regarded as the 
main barrier from (sic) her return to work.’16

[10] For reasons that will shortly become apparent, it is unnecessary for me to set out the 
nature of each allegation of unreasonable behaviour directed towards the Applicants.
However, between mid-2013 and July 2015, the Applicants have variously raised with DP 
World a large number of complaints and concerns about conduct by other employees of DP 
World and representatives of the MUA, which they believe constitute bullying at work. These 
complaints and concerns have been raised by the relevant Applicants at different times over 
this period. The Applicants have raised in excess of 212 complaints and concerns. These 
include, but are not limited to, the bullying allegations made by them in the Amended Points 
of Claim (Bullying Behaviour). The Applicants have alleged in the order of 37 instances of 
Bullying Behaviour.17

[11] In the Points of Defence filed in these proceedings dated 12 February 2015, DP World 
does not contest that the Applicants have been bullied at work within the meaning of s.789FD 
of the Act in relation to certain Bullying Behaviour.18 DP World says that it has established 
this through its investigation procedures and acknowledges that the concerns raised by the 
Applicants and the alleged instances of Bullying Behaviour include serious matters of 
workplace misbehaviour by others.19

[12] Not all individuals who have engaged in the Bullying Behaviour were able to be 
identified, some remain unknown. Some individuals involved in the Bullying Behaviour no 
longer work for DP World.20

                                               
11 See Exhibits 11 and 12.
12 Exhibit 25 at [72]; Exhibit 26 at [16].
13 Exhibit 25 at [72].
14 Exhibit 26 at [18].
15 Exhibits 39 and 41.
16 Exhibit 40.
17 See Outline of Submissions of DP World Melbourne Limited (24 July 2015) at [2].
18 See First Respondent’s Points of Defence (12 February 2015) at [104].
19 Outline of Submissions of DP World Melbourne Limited (24 July 2015) at [4].
20 Exhibit 25 at [19] and Exhibit 26 at [20].








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[13] The MUA Respondents, whilst formally denying the allegations of Bullying 
Behaviour, did not lead any evidence to rebut any allegation of Bullying Behaviour allegation
directed to the MUA Respondents made by the Applicants, and they accepted that on the basis 
of the evidence before the Commission there is a sufficient basis for the Commission to be 
satisfied that each of the Applicants has been bullied at work and to make the findings sought 
by the Applicants.21 The finding sought by the Applicants is for the Commission to issue a 
statement to the effect that each of Ms Coombe, Ms Bowker and Mr Zwarts had been bullied 
at work.22

[14] Before turning to those findings, it is necessary to say something of the ‘group of 
individuals’ that engaged in Bullying Behaviour. It seems to me necessary that I am able to 
identify, by some description, the individual or group of individuals, whether known or 
unknown, who engaged or participated in the Bullying Behaviour. In the circumstances of this 
case, identifying the features of a group of individuals that engaged in the Bullying Behaviour
whose members (or some of them) are unknown is difficult. Ultimately, I have decided to
accept the Applicants’ description of the group as constituting those persons who subscribe to,
or support, the existence of a system of authority and control at the WS Terminal which 
stands apart from DP World, the employer which stevedores are paid to serve, and a breach of 
norms of behaviour established and enforced through such a system.23 In the circumstances of 
this case, I am satisfied that the description outlined sufficiently describes the group of 
individuals that engaged in the Bullying Behaviour.

[15] I am satisfied on the uncontested evidence given by each Applicant that:

 Ms Bowker was, during the period between mid-2013 and July 2015, bullied at work
in that she was, while at work in a constitutionally-covered business conducted by 
DP World, subjected repeatedly to unreasonable behaviour engaged in by an 
individual or a group of individuals and that behaviour created a risk to her health 
and safety; 

 Ms Coombe was, during the period between mid-2013 and July 2015, bullied at 
work in that she was, while at work in a constitutionally-covered business conducted 
by DP World, subjected repeatedly to unreasonable behaviour engaged in by an 
individual or a group of individuals and that behaviour created a risk to her health 
and safety; and

 Mr Zwarts was, during the period between August 2013 and July 2015, bullied at 
work in that he was, while at work in a constitutionally-covered business conducted 
by DP World, subjected repeatedly to unreasonable behaviour engaged in by an 
individual or a group of individuals and that behaviour created a risk to his health 
and safety.

[16] Having so concluded the focus, as set out in s.789FF of the Act, turns to the question 
whether there is a risk the Applicants, or any of the Applicants, will continue to be bullied at 
work by the individuals or group of individuals that have engaged in the Bullying Behaviour 

                                               
21 MUA Respondents’ Outline of Final Submissions (21 August 2015) at [24] and Transcript PN 5095.
22 Applicant’s’ Outline of Final Submissions (14 August 2015) at [36].
23 Transcript PN 4874–PN 4876; See also Maritime Union of Australia v DP World Melbourne Ltd [2014] FCA 1321 at 

[156].








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previously and, if so, what orders (if any) are appropriate to prevent the Applicants, or any
one of them, from being bullied at work by the individual or group of individuals. 

Whether there is a risk that the Applicants or any of them will continue to be bullied by 
the individuals or group

[17] Section 789FF confers on the Commission a broad discretion to make any order it 
considers appropriate directed to preventing a worker from being bullied at work by an
individual or group of individuals. It provides as follows:

‘789FF FWC may make orders to stop bullying

(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.

(2) In considering the terms of an order, the FWC must take into account:

(a) if the FWC is aware of any final or interim outcomes arising out of an 
investigation into the matter that is being, or has been, undertaken by another person 
or body—those outcomes; and

(b) if the FWC is aware of any procedure available to the worker to resolve 
grievances or disputes—that procedure; and

(c) if the FWC is aware of any final or interim outcomes arising out of any procedure 
available to the worker to resolve grievances or disputes—those outcomes; and

(d) any matters that the FWC considers relevant.’

[18] It is readily apparent from the terms of s.789FF that having satisfied myself that each 
of the Applicants has been bullied at work by an individual, or group of individuals, the 
relevant enquiry then focuses on whether there is a risk that the Applicants, or any one of 
them, will continue to be bullied at work by the individual or group of individuals.

[19] It seems to me, that in assessing whether there is a relevant risk, I need to be satisfied 
that the risk that the Applicants, or any one of them, will continue to be bullied at work by the 
individual or group of individuals is a real, and not merely a conceptual or hypothetical, risk.
It seems to be accepted that DP World has taken some steps to reduce or mitigate the risk of 








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further bullying of the Applicants, but the Applicants say the risk of Bullying Behaviour 
continues to exist and more needs to be done.

[20] The Applicants have identified five broad issues which they say have not been dealt 
with and continue to manifest at the Applicants’ workplace. In the result, they say it is almost 
certain that there is a risk that the Applicants will be bullied at work by the individuals or 
group of individuals.24 I deal with each of the matters identified below.

Code of silence and workplace culture

[21] The ‘Code of Silence’ (the Code) is said to be a prevailing culture or paradigm where 
employees at the WS Terminal will not make complaints to DP World or verify complaints 
made, for fear of being labelled a ‘lagger’ or being ostracised in the workplace. The Code is 
said to have fostered a mentality that issues in the workplace should be addressed without DP 
World’s involvement and that ‘laggers’ should be shunned.

[22] In Maritime Union of Australia v DP World Melbourne Ltd25 to which earlier 
reference has been made, Jessup J recognised the ‘existence of a system of authority and 
control at the terminal which stands apart from the employer which stevedores are paid to 
serve, and a breach of norms of behaviour established and enforced through such a system’26

in relation to the WS Terminal. No party suggested that His Honour was incorrect in his 
description of the system.

[23] The Applicants say that this system continues to exist at WS Terminal and is 
reinforced by the Code. They say that DP World is well aware of the existence of the Code at
the WS Terminal. The Applicants point to the evidence given by Mr Andrew Jena, the former 
General Manager of DP World whose evidence was that, from his experience in the 
stevedoring industry he was aware ‘that many employees in the industry have in the past 
operated by a particular unwritten code of conduct: there have often been strong alliances 
between stevedore level employees, and a reluctance to involve management in workplace 
issues, with employees often preferring to deal with any concerns via the MUA’.27

[24] Mr Jena also gave the following evidence:

‘The waterfront environment is currently going through a period of cultural change. Since 
around 2013, the divisions in the workforce between and the more traditional elements 
(typically those that view management with a degree of adversity, are more entrenched in 
historical practices and generally opposed to industry change) and the more progressive 
elements (typically those who are more open to changes in practice and procedure and more 
open to working co-operatively with management) have manifested in a number of ways. The 
issues involving Mr Johnston which I describe below is just one example of these changes, 
where Ms Coombe, Ms Bowker and Mr Zwarts were perceived (by some employees) as 
having broken the industry’s unwritten code of silence involving management in a dispute. Mr 
Johnston’s dismissal and the subsequent legal proceedings were well known to the workforce 
at DP World Melbourne and there was a lot of interest at site level about what was going on. 
Amongst Mr Johnston’s supporters on site, the issue was emotionally charged. This put 
Ms Bowker and Ms Coombe (initially, later Mr Zwarts as well) in the position of being seen to 

                                               
24 See Applicants’ Outline of Final Submissions (14 August 2015) at [16][32].
25 [2014] FCA 1321.
26 [2014] FCA 1321 at [156].
27 Exhibit 36 at [5].






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be opposed in some way to the more traditional way of doing business and having “betrayed” 
their colleagues by co-operating with a management investigation.

DP World has put in place a number of steps intended to change the more traditional culture
silence. This has been and continues to be a difficult process. Historically, a large difficulty in 
addressing this type of situation was that employees would refuse to formally come forward or 
would refuse to answer questions in an investigation at work. This is changing over time. 
Since 2013, the culture of DP World Melbourne has become much more open: more 
employees are raising concerns with management and participating in investigations.’

28

[25] Mr Glenn McCluskey began his employment with DP World on 10 December 2014 
and holds the position of Organisational Effectiveness and Change Manager.29 Mr McCluskey 
gave the following evidence:

‘Since starting in my role at the Terminal, I have been involved in management of employee 
concerns about inappropriate workplace conduct. Given my day-to-day involvement in these 
concerns, I have observed high levels of distrust among the workforce at the Terminal. For 
example:

a) I have had a number of instances reported to me where employees have recorded 
conversations with other employees so that they have proof of what is being said;

b) When I have spoken to employees about issues in the workplace, a number of employees 
have said that they don’t want to be involved and do not want to be named and/or have 
been reluctant to state what occurred or to nominate any witnesses;

c) A number of employees have commented to me that they feel they are being “set up” 
when they are questioned about an allegation regarding conduct at work;

d) Employees at the terminal are often inclined to accept rumours and innuendo as fact if 
they consider they heard it from a “reliable” source (ie a friend or ally) and often resist 
having a fact-based discussion about the evidence of what has occurred;

e) Employees often refer to rumours, but are unwilling or unable to identify those person(s) 
said to be involved;

f) There can be a tendency for employees to make complaints about daily interactions with 
other employees that they are dissatisfied with;

g) Some employees who are informed they have been identified as being involved in 
allegations then make “counter-claims” involving other employees; and

h) There have been instances of graffiti and vandalism at the Terminal, apparently directed at 
particular employees.

Based on my experiences in other workplaces I consider that there remains a degree of tension 
among employees at the Terminal. I have also observed that the workforce appears to have 
“split” between those who support the more traditional waterfront culture (of “stevedores 
versus management”) and those employees who do not wish to have any part of it and just 

                                               
28 Exhibit 36 at [7][8].
29 Exhibit 25 at [5].








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want to come to work and do their jobs. In the Terminal, this has been exemplified in the 
issues concerning Mr Johnston, Ms Coombe, Ms Bowker and Mr Zwarts.’30

[26] The examples given by Mr McCluskey of his observations of high levels of distrust 
among the workforce at WS Terminal seems to be behaviour that is consistent with the 
continuation amongst some employees of the Code and culture described by Mr Jena, and in 
relation to which DP World is attempting to effect a change.

[27] Mr McCluskey was cross-examined about the existence of the Code and culture at WS 
Terminal during which his evidence was as follows:

‘MR RINALDI: Mr McCluskey, in your first witness statement you attached a large number of 
documents. Obviously, as you say in your statement, you’ve only come into the business in 
December last year so you’re relying on the history that other people have provided you and 
those documents, and you’ve attached - - -?---Correct.

Including the court transcripts and the like. One of those documents is an affidavit of 
Ms [Connellan], a former human resources manager. I think she is no longer there?---That’s 
correct. [sic]

GM2 is the first of, I think, two affidavits of hers in the Federal Court that you annex. In 
paragraph 9 of that affidavit, GM2, she says:

Based on my observations in my role at DP World and my discussions with numerous 
employees, I am concerned that there is a pervasive culture of not making complaints and 
employees are afraid of repercussions from the union and within the workforce if they 
make a complaint. Although DP World is taking steps to address these issues, there 
continue to be significant difficulties.

Now, that was on 18 April 2014. You agree that’s still a reasonable summary of the 
position?---May I just read the statement, please?

Yes. Paragraph 9 of GM2. Sorry, I thought you were listening?---And your question was again, 
sorry?

Do you agree that’s still an applicable summary of the position at the moment?---No, I don’t.

You don’t. I think your evidence is to the effect that there was change happening. People are 
more willing to report incidents to the company?---Correct.

That it’s a gradual process. Is that a fair summary of your evidence?---Correct.

You would agree that there is still a culture of what has been called in this case by other 
witnesses, code of silence?---No, I would not.

You would disagree with Mr Jena on that point? He says in his statement from May this year 
that there is a code of silence?---I don’t agree there’s a code of silence.

I beg your pardon?---I don’t agree that there’s a code of silence today.

You don’t agree there is a code of silence today?---Not based on my experience.

                                               
30 Ibid at [15][16].








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Not based on your experience. Okay. Your first statement, at paragraph 15, you say you’ve 
observed - this is your observations - high levels of distrust amongst the workforce at the 
terminal. This is on 22 May, you made this statement. You give a number of examples on 
page 9 of that statement, illustrating the high level of distrust.
. . .

MR RINALDI: I was referring to paragraph 7 of Mr Jena’s statement, on page 3, fifth line:

The issues describing Mr Johnston, which I describe below, is just one example of these 
changes where Ms Coombe, Ms Bowker and Mr Zwarts were perceived by some employees 
as having –

and these are the words I read to you –

broken the industry’s unwritten code of silence in involving management in a dispute.

You agree, as at 22 May, such a code existed? It seems to be consistent with the evidence you 
just gave?---I can’t speak for Mr Jena, but I would say that the courage shown by the applicants 
is fantastic.

What I’m asking you is do you agree there is an industry unwritten code of silence in involving 
management in a dispute?---It’s not my experience.

In the six months you’ve been there, you have not experienced a code of silence in involving 
management in a dispute?---Not that I can recall.

That’s despite what you’ve said in paragraph 15 of your statement? Are you changing your 
evidence?---(No audible reply)

Isn’t what you’ve recorded in 15, evidence of exactly that?---The evidence in paragraph 15 for 
me is about distrust.

Do you or do you not accept that the distrust is a by-product of the code of silence and 
vice versa?---I believe they are two different things. They may be interlinked. I believe that the 
distrust that I refer to here is about the recordings. I think the distrust in recordings does exist 
and still exists in the workplace.

So that’s 15(a). You also say the distrust relates to not wanting to nominate witnesses or state 
what occurred; that’s (b). Feeling set up when they’re questioned about an allegation regarding 
conduct at work; that’s (c). You maintain this evidence, I assume?---Sorry?

You don’t resile from this evidence?---No.

You also say the distrust is evidenced by employees accepting rumours and innuendo as fact if 
they consider they’ve heard it from a reliable source - a friend or ally - and often resist having a 
fact based discussion. All these things are said to be examples of the graffiti and vandalism end 
of the distrust you refer to. It’s not just the recording of conversations, is it?---That’s correct.

Mr Jena, in paragraph 21 of his statement, refers again to the unwritten code of silence among 
union members - the third and fourth line - in explaining his understanding of the word “lagger”
or “lagging”. Again, you seemed to accept before - because you said when I asked you about 
whether they were by-products of each other, that they’re different things, but you seemed to 
accept the existence, in your answer to that question, of the code of silence. You would agree 
that’s a code of silence among union members, as Mr Jena says?---He does.








12

You agree with that?---Yes.

Both you and Mr Jena says that things are changing, but the reality is it takes a long time to 
change that culture, doesn’t it?---It does.

And Mr Jena says, at the end of paragraph 8:

Since 2013, the culture at DP World Melbourne has become much more open. More 
employees are raising concerns with management and are participating in investigations.

As you’ve said, the applicants is an example of that?---Correct.

What you both agree on, as well, is what you say in your next paragraph 16, which is that there 
is somewhat of a split in the workforce between, as you say, those who support the more 
traditional waterfront culture of stevedores versus management and those employees who do not 
wish to have any part of that, and just want to come to work and do their jobs. That is the case.
You still observe that split, don’t you?---I do.

Yes. Whilst things are changing slowly, there is no significant change between 22 May and 
today, is there?---Certainly change continues.

It’s evolutionary?---I think it’s a bit more than that.

It’s what, sorry?---I believe it’s a more than that.

Sorry, I just couldn’t catch that. It’s - - -?---You’re saying evolutionary.

MR SKENE: He’s saying it’s more than that.

MR RINALDI: More than evolutionary?---Yes.

But it’s certainly not revolutionary, is it? It’s not happening overnight?---(No audible reply)

Your answer was no?---Yes.

Thank you. You would agree, wouldn’t you, that written policies and documents and posters 
can only do so much in bringing about the sort of change you’re trying to achieve to the 
culture?---Yes.

I think it has been said by Ms Campbell in her evidence that Mr Holland has said in a meeting 
it’s a bit like an AVO; it’s a piece of paper that can’t by itself, the document, stop the behaviour 
from occurring. You would agree with that?---Yes.’31

[28] Whilst I have little doubt that DP World has and is taking steps to address the Code 
and culture at WS Terminal and to which some employees still adhere, I do not accept 
Mr McCluskey’s evidence that a Code does not exist at WS Terminal. I accept that this may 
be his fervent belief or hope, having regard to the steps taken by DP World to effect change, 
but for the reasons that follow, I do not accept as a matter of fact that that DP World has 
succeeded in eradicating the Code. 

[29] First, Mr McCluskey’s evidence is based on his limited experience at WS Terminal, 
having only commenced employment with DP World in December 2014. Secondly, 

                                               
31 Transcript PN 3545–PN 3558 and PN 3584–PN 3613.








13

Mr McCluskey’s assessment seems inconsistent with his own experience when involved in 
the management of employee concerns about inappropriate workplace conduct, and 
specifically his evidence that:

‘When I have spoken to employees about issues in the workplace, a number of employees have 
said that they don’t want to be involved and they do not want to be named and/or have been 
reluctant to state what occurred or to nominate any witnesses.’32

[30] Thirdly, Mr McCluskey’s assessment does not sit comfortably with his evidence about
the speed with which cultural change is brought about at the WS Terminal, that is, neither
evolutionary is nor revolutionary; but rather something in between.33 Fourthly,
Mr McCluskey’s assessment is also at odds with Mr Jena’s evidence that since 2013, ‘the 
culture at DP World Melbourne has become much more open: more employees are raising 
concerns with management and participating in investigations.’34 Mr Jena’s evidence suggests 
that although more employees are raising concerns with management and participating in 
investigations, not all are doing so. This seems consistent with the passage extracted from 
Mr McCluskey’s witness statement and reproduced in the preceding paragraph. 

[31] Fifthly, it is highly unlikely, and with respect, it stretches the bounds of credulity to 
suggest that a culture at WS Terminal, that in early 2014 was described by the then Human 
Resources Assistant Manager at DP World as ‘a pervasive culture of not making complaints 
and employees are afraid of repercussions from the union and within the workforce if they 
make a complaint’ and that ‘[A]lthough DP World is taking steps to address these issues, 
there continue to be significant difficulties’,35 has been transformed into a panacea wherein
employees feel unencumbered in making complaints and co-operating with their employer by 
providing information to their employer during workplace investigations or other processes 
deployed to deal with workplace issues. Doubtless there has been an improvement. Doubtless 
this is the result of efforts by DP World to bring about change, but as Mr McCluskey has 
himself experienced, in the short time that he has been employed by DP World, some 
employees remain reluctant to become involved, they do not want to be named or have been 
reluctant to state what occurred or to nominate any witnesses.

Inadequate workplace investigations, incomplete investigations and delay

[32] The Applicants submitted that the risk of each of them being bullied at work by the 
individual or group of individuals will be on-going when they return to work at WS Terminal 
because DP World has, on numerous occasions, failed to comply with the requirement under 
its new Workplace and Bullying Policy to promptly deal with complaints.36 The Applicants 
submit that the length of time between a complaint being made and an outcome to the 
complaint’s investigation has not been ‘prompt’. They submit that the adequacy of DP 
World’s workplace investigations is also questionable on the grounds of reliability and 
credibility of the investigation process. 

[33] As to reliability, the Applicants submitted that throughout the events the subject of 
these proceedings, the Applicants have not received sufficient updates or information about 

                                               
32 Exhibit 25 at [15(b)].
33 Transcript PN 3604–PN 3611.
34 Exhibit 36 at [8].
35 Exhibit 25 at Annexure GM–2 at [9].
36 See Applicants’ Outline of Final Submissions (14 August 2015) at [29][30].








14

the status of the investigations into their complaints.37 As to credibility, the Applicants 
submitted that the investigation processes have not been methodically conducted by DP 
World. They say that on some occasions, the Applicants have not been formally interviewed 
or consulted as part of the investigation into their complaints and in the result, DP World has 
failed to consider their evidence as part of its investigation.38 Further, the Applicants say that 
despite an external investigation being conducted into a particular complaint by an external 
consultant, DGHR (Mr David Gunzburg), DP World decided to conduct its own internal 
workplace investigation into the same complaint and came to a different conclusion to that of
the external investigation, without providing any reasonable explanation.39

[34] The Applicants submitted that DP World’s investigations lack rigour, reliability and 
credibility, and the inconsistency of its approach not only perpetuates the Code, but also 
demonstrates that there is a real risk that should the Applicants report any further complaints, 
their complaints will not be properly addressed.

[35] The Applicants also submitted40 that there are a number of complaints that they have 
made which are not yet investigated or for which no outcome has been communicated.41 This 
further emphasises the deficiency of DP World’s system of managing complaints. In some 
cases the outcomes of complaints have remained incomplete or un-communicated, despite the 
Applicants having been directed to return to work.42

[36] The Applicants submitted that a further contributor to the risk is the significant amount 
of time it has taken for any action to be taken in respect of their complaints.43 The Applicants 
submitted that not only has DP World taken its time in providing outcomes and attempting to
produce adequate return to work (RTW) plans, but the proceeding itself has also been 
significantly protracted. This has meant that the Applicants have not been able to move on 
from the bullying, and their fear of the risk of being bullied at work has increased as more and 
more incidents are identified as time goes on. 

[37] To the extent that the reference to the protracted nature of this proceeding is intended 
as a criticism directed to the Commission, it is rejected. Even a cursory review of the way in 
which these proceedings have been conducted shows a myriad of interlocutory applications 
and other disputes requiring resolution, the result of which was the vacation of dates for the
hearing programmed to begin on 24 November 2014, and which did not enable the matter to 
be ready for hearing until 5 August 2015. 

[38] Mr Glen McCluskey gave detailed evidence, which I accept, about the history, 
development and amendment of relevant workplace behaviour policies and the training that 
employees have received. Relevantly, Mr McCluskey’s evidence was that:

 ‘In September 2013, DP World published the DP World Employee Handbook 2013
which sets out behavioural standards for dealing with customers, stakeholders and 
other employees. The Employee Handbook includes: 

                                               
37 Transcript PN 1358; PN 1442; PN 2351; PN 2357 and PN 3896PN 3903.
38 Transcript PN 442PN 443; PN 655PN 657, PN 942, PN 952; PN 1788 and PN 1798.
39 Transcript PN 504; PN 676; and PN 3958PN 39560, PN 3969PN 3974, PN 4008PN 4011 and PN 4025PN 4029.
40 See Applicants’ Outline of Final Submissions (14 August 2015) at [31].
41 Transcript PN 556; PN 687; PN 1188; PN 1315; PN 1360; PN 3647PN 3650 and PN 3701PN 3705.
42 Transcript PN 1360.
43 See Applicants’ Outline of Final Submissions (14 August 2015) at [32].








15

i. a Code of Conduct which sets out the standards which apply to conduct at work; 
and

ii. a Discrimination, Harassment, Bullying and Freedom of Association Policy'.44

 In November 2014, the DP World’s former policy on discrimination, harassment, 
bullying and freedom of association was replaced by a Workplace Behaviour Policy. 
The Workplace Behaviour Policy addresses unacceptable workplace behaviour 
including workplace bullying, discrimination, victimisation, cyber-bullying, stalking 
and breach of freedom of association. It also addresses how complaints will be 
addressed by DP World.45

[39] In relation to employee education, Mr McCluskey’s evidence was that:

‘Since I commenced in my role, I have been involved in DP World’s steps taken to ensure that 
all employees at the Terminal are aware of the Workplace Behaviour Policy and their 
obligations. This has included providing a copy of the following policies to each employee 
individually and requiring them to acknowledge receipt: the Workplace Behaviour Policy, the 
Workplace Behaviour Complaint Form, the Social Media Policy, the Social Media and Mobile 
Phone Use Bulletin, the Domestic Violence Support Policy and the MUA member booklet on 
harassment, bullying and violence. As at the date of this statement, 97% of all employees at the 
Terminal have confirmed in writing that they have received a copy of the policies referred to 
above. This is essentially all employees at the Terminal, other than a small number of 
employees on long term leave. Of the remaining 19 employees, 16 have received the policies 
by registered mail. On this basis I consider over 99% have now individually received the 
policies.

98% of all employees at the Terminal have participated in training on appropriate workplace 
behaviour since 2013. The 14 employees who have not participated in training as at the date of 
this statement are all on long term absence, and in many cases the materials have been 
provided to them in the mail. The training programs provided include internal and external 
training. The external training has been provided by consultants who specialise in this field.’46

[40] Mr McCluskey also gave evidence, which I accept, about the procedure adopted by 
DP world in dealing with complaints in accordance with its Workplace Behaviour Policy. His 
evidence was that:

‘. . . Typically, complaints are dealt with as follows:

a) There is a prescribed form for use under the Workplace Behaviour Policy (Complaint 
Form). The Complaint Form: 

i. sets out some brief questions for the complainant about who the complaint is made 
against, what happened, where it happened and who was involved;

ii. asks the complainant what actions DP World can take to effectively deal with the 
complaint; and

                                               
44 Exhibit 25 at [20(b)].
45 Ibid at [20(e)].
46 Ibid at [22]–[23].








16

iii. requests that employees submit their completed form to their direct manager, 
supervisor, HR or via email to complaintassist@dpworld.com.au.

. . .

b) An employee submits the Complaint Form and/or written complaint in person or by 
email. In some circumstances a verbal complaint can also be made (in which case the 
issue is recorded in a detailed file note), however DP World’s preference is for 
complaints to be set out in writing by the complainant. That complaint is either provided 
directly to the Human Resources team or sent through to the team by the person to whom 
it is provided.

c) After the complaint has been received, the employee receives an acknowledgement of 
receipt. This is provided in writing, by email or by mail. The email or letter is typically 
provided within 24-48 hours and sets out the particular manager who will be progressing 
their complaint and the immediate next steps.

d) Depending on the nature of the complaint, the manager may make inquiries, seek 
additional information from the complainant, interview witnesses, review any available 
radio recordings, CCTV footage, work logs, electronic records and any other evidence 
that is considered to be relevant and appropriate. If relevant witnesses have been 
identified, they may also be interviewed, depending on the circumstances and the 
prospect that they will be able to provide additional information that will be relevant to 
the outcome. The evidence is considered on a case-by-case basis.

e) If a witness says that he or she cannot recall events, or denies that particular events 
occurred as alleged (or at all), the investigator may consider whether any further steps are 
required to assist the witness to recall events and/or to test what has been said. For 
example, if there is independent evidence that could verify this issue, this may be 
considered. If the evidence is not regarded as credible or truthful, the investigator may 
probe the issue further with the witness. How far the investigator chooses to take it will 
depend on all the circumstances including whether further evidence is readily available 
and the extent to which it is likely to affect the outcome of the investigation.

f) If the investigation substantiates the allegations and concludes that a breach of policy has 
occurred, DP World will consider what disciplinary action may be appropriate. The issue 
will be escalated to the appropriate manager to decide whether the investigation findings 
provide a basis to proceed or whether additional steps should be taken. Ultimately, a 
disciplinary process may be implemented.

g) In some cases, it may be appropriate to adopt interim arrangements to address the work 
relationship between the employees involved in a complaint. In that case, the employees 
whose arrangements are being adjusted will be informed of the changes considered 
appropriate by DP World.

h) After the inquiries have been concluded, the complainant is provided with notification of 
the outcome of their complaint. This is typically done in writing, although an employee 
may be informed verbally as well. The timeframes for this notification vary, depending 
on the circumstances of the complaint and investigation. Generally, our objective is to 
deal with complaints as quickly as possible. Many complaints are able to be dealt with 
quickly (for example, within approximately two weeks) and this commonly occurs. 
However, in some cases - including the case of Ms Coombe, Ms Bowker and Mr Zwarts -
their issues are more complex and accordingly the process may take longer. If DP World 






mailto:complaintassist@dpworld.com.au


17

cannot be satisfied about what has occurred, it may also decide to leave a complaint 
“open” if further information may come to light.

i) I keep a separate register of complaints made under the Workplace Behaviour Policy at 
the Terminal. The human resources team retains copies of all relevant documentation in 
respect of each complaint.

In many instances, an employee will be seeking (in the first instance) a quick process to 
resolve a workplace grievance. New complaints about potentially unacceptable workplace 
conduct are not always raised using the formal procedure. Employees may tell their Supervisor 
or a manager about a particular issue or send an email through. This is permitted under the 
Workplace Behaviour Policy, which allows employees to deal with concerns themselves 
and/or raise issues on an informal basis. In these cases, DP World managers have discretion as 
to the level of formality required in connection with a complaint. Given the breadth of issues 
which may be raised under the Workplace Behaviour Policy (which includes but is not limited 
to bullying and harassment), a range of different outcomes may be appropriate and are 
considered on a case-by-case basis. However, if a formal complaint is made and/or where the 
issue relate to bullying, these are notified to and/or referred through to the Human Resources 
team.’47

[41] Mr McCluskey also gave detailed evidence about the internal and external 
investigations that were conducted into the various complaints made by the Applicants.48 To 
summarise, Mr McCluskey’s evidence was to the following effect:

 DP World engaged external investigators to conduct investigations into some of the 
allegations made by Ms Coombe and Ms Bowker;

 In the case of some complaints, an external investigation was either not required or 
deemed by DP World as not appropriate, and an internal investigation was conducted 
in relation to these complaints;

 The decision to undertake an internal or external investigation is made on a case by 
case basis, however the majority of complaint investigations undertaken by DP 
World occur internally;

 Allegations the subject of a complaint are sometimes determined ‘not be 
substantiated’ on the available evidence. It does not mean that the allegations are not 
true;

 If further information is provided or later discovered, a further investigation may be 
initiated;

 When an investigation is finalised, DP World would determine whether the 
allegations the subject of a complaint are substantiated, in part substantiated or are 
not substantiated;

 In some cases, following an investigation DP World determined that no further steps 
were warranted in relation to particular allegations the subject of a complaint;

                                               
47 Ibid at [25][26].
48 Ibid at [29][54].








18

 In some cases, allegations the subject of a complaint made by the Applicants,
concerned persons who were no longer employees of DP World;

 In some cases, it had not been possible to progress investigations into allegations the 
subject of complaints made by the Applicants because it was not possible to identify 
the persons involved;

 In some cases, the allegations the subject of a complaint were reported to DP World 
many years after the event was said to have taken place. Whether the particular 
allegations were investigated depended on considerations such as the passage of time 
and practicality of an investigation;

 Some allegations the subject of complaints made by the Applicants did not disclose 
any apparent breach of a DP World policy;

 Some allegations the subject of a complaint made by the Applicants did not involve 
the Applicants and so the outcome of the investigations into those complaints was 
not communicated to the Applicants;

 In cases where DP World was satisfied that there had been a breach of its policies by 
an identified employee then disciplinary outcomes were implemented which 
included issuing of warnings and dismissal from employment;

 Where an allegation subject of a complaint was substantiated but a particular 
employee could not be identified, DP World considered the steps that could be taken 
to address the concern the subject of the complaint, including confirmation or 
reinforcement amongst the workforce of the standards of behaviour that are required 
in the workplace.

[42] As to the information that has been provided to each Applicant about the progress of 
any of the investigations into their complaints or the concerns that they raised, it is apparent 
investigations into some of the complaints and concerns are continuing and have not been 
concluded.49 It is also apparent that a document has been provided to each Applicant setting 
out the status or outcome of each of the various complaints made or concerns raised,50

although some of the details provided may not have disclosed fully or in sufficient detail, the 
outcome of a particular investigation.51 In some cases, the reasons for conclusions reached by 
DP World following an investigation may not have been clearly or sufficiently explained to 
the Applicants.52 In some cases, matters have been closed without any finding or note as to 
the reason why a finding was not made, or notations of the actual complaint are incomplete.53

[43] The annexure to the Applicants’ final submission,54 not reproduced here, chronicles 
the timing of the major steps taken by the Applicants in relation to their various complaints or 
concerns, and time that has passed since the complaints or concerns were raised. Attachments 
to Mr McCluskey’s further witness statement also give some detail as to the status or progress 

                                               
49 Ibid at [77]. 
50 Exhibit 26 at [10].
51 Transcript PN 3899PN 3920.
52 Transcript PN 3947PN 4062.
53 Transcript PN 3706PN 3739.
54 See Applicants’ Outline of Final Submissions (14 August 2015) at [32] and Annexure thereto.








19

of the various complaints or concerns.55 There seems little doubt that there has been delay in 
advising the respective Applicants of the outcome of some of their complaints or concerns. In 
part this may be explained by issues of complexity arising, for example, from the passage of 
time between the complaint and the incident; whether the person against whom allegations are 
made was an employee, or was an employee at the time the complaint was made, whether the 
person is known or identifiable and the availability of persons to corroborate the allegations 
the subject of the complaint, and the need for considered advice. That said, in some cases, it 
has taken DP World 12 months or more to advise the relevant Applicant of the outcome of a 
complaint. On no account are such delays desirable. Given the apparent delay, coupled with 
the matters identified in the preceding paragraph and in the circumstances faced by the 
Applicants, it is understandable that their confidence in DP World’s investigative processes is 
shaken. Judging by a register of current workplace behaviour complaints56 tendered in 
evidence, and which records complaints received by DP World from various of its employees, 
there appears, in a number of instances, to be a significant period that passes between the date 
a complaint is received by DP World and the date on which the outcome is communicated to 
the complainant. In some cases, complaints made in the later part of 2014 are recorded in the 
register (as at 14 July 2015) as on-going. It is therefore apparent that the process can and 
should be improved notwithstanding the steps already taken as set out in the evidence of Mr 
McCluskey. 

[44] Apart from changes to policies, it is evident that DP World has taken other steps to 
address bullying and other unacceptable workplace behaviour. Mr McCluskey gave evidence 
of the following initiatives:

 Formal and informal (for example at toolbox meetings) policy reminders reinforcing 
of the expected standards of behaviour amongst the workforce;

 Workplace behaviour training at the WS Terminal;

 ‘Compass’ – an organisational initiative led by the senior leadership team of DP 
World, which amongst other things, ‘aims to promote and foster a positive and 
productive work environment’ with a ‘strong focus on appropriate behaviour at
work, fostering a respectful and supportive environment’ and ensuring that 
inappropriate conduct is addressed;

 The appointment of six contact officers who have undertaken contact officer 
training, to raise awareness, offer support and help people understand the options 
available to them on a variety of matters including unacceptable behaviour at work; 
and 

 Introducing additional services to deal with workplace behaviour issues from time to 
time when required, such as:

o ‘engaging Ms Susan Halliday, former Sex Discrimination Commissioner, to 
assist DP World with respect to matters including training sessions and 
investigations’;

                                               
55 Transcript PN 3637; Exhibit 26 Annexures GM–56, GM–57, GM–58.
56 Exhibit 32.








20

o ‘engaging Mr Lee to assist with terminal management, including assisting in the 
investigation and return to work process’ for each of the Applicants;

o ‘allocating Mr Muscat, the Human Resources Manager from DP World Brisbane, 
to provide additional support’ in the period prior to Mr McCluskey’s 
appointment; and

o ‘engaging external advisors, investigators and other consultants from time to 
time as required’, including the engagement of the company, FBIS to provide 
security in connection with the Applicants.57

[45] That these steps have been taken is not in issue. Moreover, I am satisfied that the steps 
taken by DP World described above and earlier, contribute to a diminution of the risk of the 
occurrence of bullying at work, both generally and specifically in relation to the Applicants.

Inadequate return to work (RTW) plans and risk assessments

[46] Much of the focus of the proceedings concerned the adequacy of the RTW plans 
prepared, and risk assessments undertaken by DP World, to facilitate the return to work of 
each Applicant. 

[47] The Applicants submitted58 that a comprehensive risk assessment is a necessary 
prerequisite to a successful RTW plan, as the risk assessment allows risks to be identified and 
measures to be created and implemented in response to identified risks.59 The Applicants 
submitted that each of them was directed by DP World to return to work before their 
respective risk assessment was completed, and that some measures identified in the risk 
assessments had not been implemented. The Applicants submitted that some of the 
inadequacies they identified in the risk assessments include: 

 The risks and the control measures identified in the risk assessments do not 
thoroughly and robustly address the Applicants’ specific concerns;60

 The control measures identified in the risk assessments do not address, and are 
inadequate to, combat the continuing and prevailing culture of the Code;61 and

 Some controls identified in the risk assessments have already been proven to be 
ineffective.62

[48] The Applicants say that at no time prior to the Applicants’ scheduled return to WS
Terminal did the discussions between DP World and the Applicants reach a point where the 
RTW plans, and changes to arrangements, were comprehensively discussed, explained and 
agreed to by both parties.63 This submission, with respect, misunderstands the nature of these 

                                               
57 Exhibit 25 at [56]–[70].
58 See Applicants’ Outline of Final Submissions (14 August 2015) at [24][28].
59 Transcript PN 764; PN 766PN 768; PN 868; PN 1374 and PN 4372.
60 Transcript PN 351, PN 354PN 355; PN 1360, PN 1362; PN 1426; PN 1458; PN 1602PN 1603; PN 2096; PN 2619;
PN 2633; PN 2887PN 2890 and PN 3865PN 3867.
61 Transcript PN 624; PN 1184; PN 1399; PN 2368; PN 2369 and PN 2621.
62 Transcript PN 477; PN 828 and PN 1181.
63 Transcript PN 573; PN 764; PN 766; PN 1281; PN 2038PN 2040; PN 2624, PN 2728; PN 3849PN 3850 and PN 3922-
PN 3924.








21

instruments. A RTW plan is an instrument prepared, relevantly, by an employer pursuant
usually to workers compensation legislation in discharge of obligations to return injured 
workers to the workplace, where consultation, but not agreement, is required.64 RTW plans 
may also be prepared to facilitate a return to work of employees outside of workers 
compensation related injuries. Absent some mandated contractual industrial instrument or 
legislative term requiring agreement, only consultation about the RTW plan, will be required.

[49] Similarly, risk assessments are undertaken to identify and assess hazards or risks to 
health or safety at the workplace as a tool to assist an employer to discharge the employer’s 
obligations under occupational health and safety legislation. An obligation to consult (but not 
to agree) will usually arise.65 DP World cannot be fairly criticised if agreement with the 
Applicants on the content of these instruments had not been obtained prior to their finalisation 
and implementation.

[50] The Applicants also say that their respective RTW plans are deficient because the 
RTW plans lacked ‘hard measures’ to combat continuing risks that had been identified in the 
workplace and to minimise the Applicants’ contact with unacceptable workplace behaviours. 
The Applicants point to the following, by way of example:

 Ms Bowker’s RTW plan provides for a change to her panel, but the change identified 
is not sufficient to protect her from the identified risks;66

 Mr McCluskey refused to allow Ms Coombe to move into a project role, which 
would allow Ms Coombe to be removed from a working environment populated by 
people against whom she has made complaints;67

 a lack of control measures were identified which would ensure the Applicants’ safety 
from those against whom the Applicants have made complaints;68 and 

 DP World failed to implement adequate security controls including those 
recommended by the external risk assessor, Matryx Consulting Pty Ltd.69

[51] The Applicants submitted additionally, the MUA has failed to provide assurance that 
its internal disciplinary system provides an appropriate, unbiased and functional means for the 
Applicants to raise issues of bullying in the workplace.70

[52] According to the Applicants, neither DP World nor the MUA have demonstrated 
sufficient evidence to ensure a safe work environment for the Applicants upon their return to
WS Terminal, and there was no evidence to suggest that this scenario will change before any 
further directions by DP World for the Applicants’ RTW are made.71

                                               
64 See for example Part 4 of the Workplace Injury Rehabilitation and Compensation Act 2013, particularly Division 2 and 

s.105.
65 See for example s.35 of the Occupational Health and Safety Act 2004 (Vic), particularly ss.35(1)(a) and (b).
66 Transcript PN 582; PN 585; PN 757; PN 845 and PN 870.
67 Transcript PN 1322; and PN 2638PN 2639.
68 Transcript PN 713, PN 849PN 851; PN 1284; PN 1758; PN 1760; PN 4116 and PN 4118.
69 Exhibit 30 and Transcript PN 3373; PN 3416PN 3428 and PN 3783.
70 Transcript PN 592PN 595; PN 605; PN 3058PN 3069, PN 3155PN 3156 and PN 3189PN 3192.
71 Transcript PN 4110PN 4116 and PN 4304PN 4305.








22

[53] Mr Adam Holland was appointed to act as General Manager – DP World Melbourne,
on 16 July 2015.72 Prior to that appointment, Mr Holland was DP World’s General Manager –
Health Safety, Environment and Security.73 In that capacity, Mr Holland was involved in the 
preparation of risk assessments and site audits which examined the risks and mitigation steps 
at site level for DP World’s operations across Australia, and in consequence he was involved 
in the preparation of risk assessments in relation to the return to work by Ms Coombe, Ms 
Bowker and Mr Zwarts. His involvement in the return to work process for the Applicants 
continues.74 Relevantly, Mr Holland gave the following evidence:

‘Early in 2015, in my capacity as GM HSES, I became involved in the return to work process 
for Ms Coombe, Ms Bowker and Mr Zwarts in connection with the preparation of risk 
assessments as set out below.

DP World has a standard process for the return to work for employees who have been on an 
extended period of absence for reasons of illness or injury. This involves review of the issues 
which may arise on a return to work, preparation of a return to work plan and consultation 
with the employee(s) concerned. Typically, a written return to work plan is prepared in 
discussion with the employee and then reviewed on the employee’s return to work. I 
understand that the potential risks are typically considered in developing the return to work 
plan, which will set out the steps being taken to avoid or mitigate these risks.

When I became involved in the risk assessment process with Ms Coombe, Ms Bowker and Mr 
Zwarts earlier this year they had each been absent from work for a period of several months. 
Although they had not been absent for reasons of illness or injury at that time, I understood 
that they had each expressed concerns about returning to work and the risks that may arise on 
re-entry to the workforce at West Swanston Terminal. For this reason, I decided to use a 
standard risk assessment tool which is utilised for assessment of risk in DP World’s business.

This assessment tool provides for a review of the potential risks that may exist (“Inherent 
Risks”), the mitigation steps implemented to reduce that risk and an assessment of the effect of 
that mitigation step on the Inherent Risk. This is known as the “Residual Risk”. The 
assessment tool measures both the “Inherent Risk” and the “Residual Risk”.

I created a risk assessment document for each of Ms Coombe, Ms Bowker and Mr Zwarts in 
connection with their return to work. Initially, a draft risk assessment document was prepared 
using DP World’s standard template assessment tool. This assessment tool is used for all risk 
assessments in the business (including all operational, business continuity and work related 
risks). For example, this system is often applied to assess possible risks arising from scenarios 
such as changes in operation, equipment or process.

In the case of Ms Coombe, Ms Bowker and Mr Zwarts, I understood that they had each 
provided Mr McCluskey and/or Mr Lee with an outline of the particular risks that they were 
concerned about for the purpose of their return to work. Initially, Mr McCluskey and Mr Lee 
communicated these concerns to me. I subsequently met with each of Ms Coombe, Ms 
Bowker and Mr Zwarts to discuss their concerns about the possible risks arising on their return 
to work.

I reviewed their concerns and created the risk assessments, having regard to the particular 
risks that they expressed to be of concern to them and the mitigation steps which had been 
proposed in the return to work plans. I also sought input from DP World’s safety team, 

                                               
72 Exhibit 37 at [1].
73 Ibid at [4(c)].
74 Ibid at [5]–[6].








23

National Risk Reduction Manager and FBIS (the security team which had been assigned to 
each of Ms Coombe, Ms Bowker and Mr Zwarts) in preparing the personalised risk 
assessments for each of Ms Coombe, Ms Bowker and Mr Zwarts. In addition to these 
meetings, each of Ms Coombe, Mr Zwarts and Ms Bowker have also provided written 
feedback on the return to work plans and risk assessments, typically via emails to 
Mr McCluskey. The risk assessments were amended to incorporate the additional concerns 
raised by each of Ms Coombe, Ms Bowker and Mr Zwarts and set out the control measures 
that were proposed to be put in place to address the risks that they had raised by each of Ms 
Coombe, Ms Bowker and Mr Zwarts.

In the process of preparing the revised risk assessments, I have sought to avoid debating 
whether or not a particular risk does or does not exist with Ms Coombe, Ms Bowker and Mr 
Zwarts. Instead, my approach has been to take at “face value” the fact that they are concerned 
about a particular risk and to focus on the steps being implemented to control or mitigate that 
risk.

Although my role has been limited to assessing risk rather than the return to work plans, I have 
been involved in meetings that have canvassed both issues. I have not been involved in all the 
discussions about the return to work plans, which I understand have been handled principally 
by Mr McCluskey and Mr Lee. To date, I have spent over three hours meeting with Ms 
Coombe and her representatives, over seven hours meeting with Ms Bowker and her 
representatives and over three hours meeting with Mr Zwarts and his representatives to discuss 
their risk assessments and (more generally) their return to work. In total, this is in excess of 13 
hours of meetings. In those meetings, they have each indicated dissatisfaction with the level of 
detail in their risk assessments and the level of consultation with them.

Based on the discussions that I have had with them I consider that a key issue is a difference 
of opinion about the process which should be followed to address their concerns and whether a 
particular concern relates to a risk (which may impact their capacity to return to work) or 
relates to their dissatisfaction with the resolution of a complaint that they have in the past 
raised with DP World. For example:

a) In my recent discussions, each of Ms Coombe, Ms Bowker and Mr Zwarts have 
expressed concerns that certain issues have not been dealt with in the risk 
assessments. However, I have taken them through the documents in detail and 
confirmed that these issues have been included in the risk assessments provided, just 
not in the same level of detail that they had set out in their communications to DP 
World;

b) Each of Ms Coombe, Ms Bowker and Mr Zwarts has expressed concerns that they 
consider the risk assessments do not reflect the experience that they have previously 
had in the workplace in 2013-2014. I have explained to them that the risk assessments 
have been prepared based on the current practice and culture in the business, noting 
that there have been a number of changes (as I have explained above); and

c) Each of Ms Coombe, Ms Bowker and Mr Zwarts have expressed concerns to the 
effect that they do not wish to return to work until there is no risk of a repetition of the 
type of behaviour they say they have been subjected to in the past. In my view, this 
misstates the nature of risk. It is impossible to eliminate all foreseeable possibility of 
adverse events occurring. A degree of risk is inherent in all activity. General safety 
risk assessment practices tend to depart from an assumption that there is an inherent 
level of risk, and focus on the likelihood, potential outcomes and management steps. 
The purpose is not to seek to eliminate all possible adverse events (regardless of 
likelihood, possible outcome or mitigation) but to balance the risks with the steps to 








24

be taken to achieve appropriate management of risks. Accordingly, in this context, the 
purpose of a risk assessment is to evaluate such inherent risks to assess the extent to 
which control measures may be put in place to minimize the chance of an adverse 
event occurring, mitigate the effect of that event and/or implement remedial action to 
address the event.

I am satisfied that there are sufficient mitigation measures to appropriately control and address 
the risks in connection with Ms Coombe’s, Ms Bowker’s and Mr Zwarts’ return to work to the 
extent reasonably practicable and appropriate. I am satisfied that it is appropriate for them to 
return to work in accordance with the return [to] work plans which have been prepared for 
them.’75

[54] As Mr Holland indicated in his evidence, his role was limited to assessing risk rather 
than RTW plans and he was not involved in all of the discussions concerning the Applicants’ 
RTW.76 These discussions were the responsibility of Mr McCluskey. Relevantly, his evidence 
was:

‘At the time I commenced in my current role, the Court’s ruling in the Johnston Proceedings 
had been recently published. At that time, each of Ms Bowker, Ms Coombe and Mr Zwarts had 
been provided with personal security by DP World. The need for personal security was 
reviewed in February 2015. At that time, I was involved in conducting a review with FBIS and 
I discussed the issues with the representatives from FBIS. I was satisfied that there was no 
basis to continue providing the personal security, which was discontinued in February 2015. 
However, DP World has continued to provide some security support to each Ms Coombe, Ms 
Bowker and Mr Zwarts. The personal security was discontinued from 18 February 2015. I am 
not aware of any security incidents that have occurred since this time.

I have met with each of Ms Coombe, Ms Bowker and Mr Zwarts on several occasions in 
relation to this issue as follows:

a) On 15 January 2015, Mr Lee and I attended a meeting Ms Coombe, Ms Bowker and 
Mr Zwarts;

b) On 17 February 2015, I met with each of Ms Coombe, Ms Bowker and Mr Zwarts in 
separate meetings;

c) On 2 March 2015 I met with Ms Bowker and her husband with Mr Lee;

d) On 3 March 2015 Mr Lee and I met with Mr Zwarts; 

e) Later on 3 March 2015, Mr Lee and I met with Ms Coombe;

f) On 14 April 2015, I met with Mr Zwarts and Ms Bowker in separate meetings; 

g) On 21 April 2015, I met with Ms Coombe; and 

h) On 29 April 2015, I met with Ms Coombe.

I have also exchanged various emails with each of Ms Coombe, Ms Bowker and Mr Zwarts in 
connection with their return to work and I have been in contact with their counsellor, Jodi 
Thomas-Yorgey, to discuss each person’s mental wellbeing and preparedness to return to 

                                               
75 Exhibit 37 at [11][21].
76 Ibid at [19].








25

work. In the course of these meetings and discussions, I have given each of Ms Coombe, Ms 
Bowker and Mr Zwarts the opportunity to identify those particular issues that they considered 
were preventing their return to work. These issues have been considered, including what steps 
are appropriate to mitigate any risks as outlined in further detail below.

Based on my discussions with Ms Coombe, Ms Bowker and Mr Zwarts, I have grouped their 
concerns regarding return to work into four broad categories as follows.

a) Resolution of concerns preventing return to work

i. I have confirmed to each person that although DP World’s investigations were 
continuing and had not all been concluded, I did not consider this should prevent them 
from returning to the workplace. I have confirmed that in the return to work process 
our focus on was identifying those particular issues which were preventing their return 
to work. Each person identified to me the particular concerns which they said required 
to be resolved for their return to work.

ii. I have asked each of Ms Coombe, Ms Bowker and Mr Zwarts about their previous 
returns to work and discussed what they have to say about the reasons that their 
previous return to work arrangements were not ultimately successful.

iii. In the meetings on 2-3 March 2015, each person identified the particular issues they 
said were impacting [t]heir return to work (in their view). After these meetings, I 
circulated the notes to each person, so that they could provide any additional 
comments. Following that correspondence, each person identified a number of further 
concerns that they said were relevant to their return to work. [sic]

iv. Mr Holland also attended the meetings in April 2015 with Ms Bowker and Mr Zwarts. 
He was not available to attend the meeting with Ms Coombe on 21 April 2015, 
however he met with her subsequently on 29 April 2015. I attended that meeting.

v. In those meetings, Mr Holland explained the risk assessment that is being been 
conducted, both in relation to the person’s specific circumstances and more generally 
with respect to all other employees at the Terminal. This process is ongoing at the date 
of this statement

vi. My view is that, to the extent it is practicable to do so, the processes and procedures 
DP World has in place are appropriate to address the concerns that have been raised 
by Ms Coombe, Ms Bowker and Mr Zwarts about how conduct issues will be 
addressed going forward. I have communicated this to each of Ms Coombe, Ms 
Bowker and Mr Zwarts in my recent meetings with them in April 2015. I have also 
and confirmed that this will continue to be reviewed by DP World.

b) Facilities on site

i. Each of Ms Coombe, Ms Bowker and Mr Zwarts raised queries about the possibility 
of increasing security facilities on site. At all times, DP World has been prepared to 
consider reasonable accommodations concerning security at the Terminal, subject to 
an assessment of what is reasonable, practical and appropriate in the circumstances.

ii. Since I commenced in my role, DP World has arranged for a site security review to 
assess various safety and security issues in connection with the Terminal. The results 
of the review included some recommendations for enhancing security at the Terminal. 
As these recommendations would require a substantial investment, they required 








26

internal approval. As at the date of this statement, a number of recommendations have 
been approved for implementation. This includes:

1. introducing swipe card access to the women’s locker room;

2. putting additional cameras covering the entry into the women’s locker room and 
overalls common area;

3. putting additional cameras to cover the entrances into the amenities building 
including the stairway;

4. putting additional cameras to cover the administration walkway and stairs from 
ground floor to first floor; and

5. putting additional lighting in around the amenities building.

iii. DP World has previously considered other options with respect to security including 
for example the provision of round-the-clock personal protection to each of Ms 
Coombe, Ms Bowker and Mr Zwarts.

c) Complaint handling process and policy

i. Each of Ms Coombe, Ms Bowker and Mr Zwarts raised concerns about the way in 
which their complaints had been handled in the past;

ii. As set out above in paragraphs 24 to 26, since commencing in my role at DP World, 
complaints have been addressed in accordance with the Workplace Behaviour Policy. 
I have reviewed the requirements of the Workplace Behaviour Policy and the process
for conducting inquiries. I consider that their concerns are substantially addressed by 
the current complaint handling processes under the Workplace Behaviour Policy. I 
have discussed these issues with each of Ms Coombe, Ms Bowker and Mr Zwarts;

iii. Each of Ms Coombe, Ms Bowker and Mr Zwarts have raised concerns about returning 
to work in circumstances where not every issue that they have previous[ly] notified to 
DP World has been resolved and/or resolved to their satisfaction. I do not agree with 
this position and do not consider that it should prevent their return to work. We are 
undertaking a risk assessment and will not ask them to return to work until we are 
satisfied that steps have been taken to support and monitor their safety in the 
workplace. Many of the issues that they have been raised have been addressed by DP 
World. In circumstances where they continue to raise new issues with DP World (even 
though they have not in fact been at work for many months) it is difficult to see that 
this approach would ever enable them to return to work. I have taken steps to identify, 
consider and (where appropriate) address the specific issues that they have said are 
impacting their return to work. This process will be ongoing. [sic]

d) Interpersonal issues with other employees

i. DP World will manage interpersonal issues as and when they arise in accordance with 
its policies and procedures. As set out in this statement, steps have been taken to 
inform all employees of the expected standards of workplace behaviour and what to 
do if there is any inappropriate conduct at work;

ii. Each of Ms Coombe, Ms Bowker and Mr Zwarts identified various concerns about 
interpersonal conflict with other employees, including ostracism by other employees 
at work. I have had initial discussions about these issues with each of them, including 








27

to outline the expected standards of workplace conduct and the options that exist to 
deal with any new complaints of inappropriate conduct;

iii. I am aware that there are a number of interpersonal issues that have arisen at the past 
between employees at the Terminal, including Ms Coombe, Ms Bowker and 
Mr Zwarts. I acknowledge that further issues could arise in the future. However, as 
detailed in this statement, a number of steps have been taken to address these issues 
with the employees at the Terminal, to resolve the issues which had been raised in the 
past and to confirm DP World’s expectations that its employees will engage in 
appropriate workplace behaviour. If there are further issues which arise in relation to 
workplace behaviour in the future, these will be dealt with in accordance with the 
Workplace Behaviour Policy;

iv. I consider that the interpersonal difficulties which employees at the Terminal have 
identified are in part the product of the ongoing divisions in the workforce (which I 
have referred to in paragraph 16 above);

v. A key difficulty is ongoing interpersonal issues between different employees. It is not 
my role or DP World’s role to make employees like each other or force employees to 
socialise on a personal level (for example, to choose to eat lunch together on a break). 
I think everyone can choose who they are friends with and who they choose to 
socialise with. However, DP World does expect that its employees will meet the 
requirements to work together in a respectful manner. If DP World becomes aware of 
an employee being ostracised, it will address the issue to investigate what has occurred 
and ensure that appropriate standards of professionalism are maintained;

vi. In my current role, I receive informal and formal complaints regarding employees’
behaviour. If there is a complaint about an interpersonal issue, I will consider what 
steps are appropriate. The range of outcomes may include mediation between the two 
employees, counselling one or both of them to implementing a formal investigation or 
disciplinary process. There is an ongoing process of educating the workforce at the 
Terminal to ensure that the employees understand and engage in acceptable workplace 
behaviour;

vii. Even though each of Ms Coombe, Ms Bowker and Mr Zwarts have been absent from 
work since September 2014, they have continued to raise concerns about conduct at 
work during this time. They have also been the subject of concerns and complaints 
raised by other employees about inappropriate conduct at work; and

viii. However, the underlying levels of mistrust in the Terminal can result in some 
employees having a heightened sensitivity to interpersonal issues. I am conscious that 
as a result of their previous concerns, each of Ms Coombe, Ms Bowker and Mr Zwarts 
may be sensitive to such conduct. For example, recently Ms Bowker attended the 
Terminal on 14 April 2015 to discuss her return to work. She arrived at our meeting 
visibly upset and explained that she had encountered an employee between the car 
park and the administration building on her way into the meeting. She alleged that this 
person had rolled his eyes. In the circumstances, Ms Bowker indicated she took this 
interaction to form part of the overall conduct which concerned her at the Terminal 
and that this caused her to be very upset. While I would not ordinarily regard an “eye 
roll” as amounting to an allegation which would warrant investigation, I subsequently 
spoke to the employee concerned and to Ms Bowker about the issue. This is an 
example of the potential difficulties that may face the workforce, including Ms 
Coombe, Ms Bowker and Mr Zwarts.








28

Mr Holland has reviewed Ms Coombe’s function for the purpose of her return to work, and a 
return to work plan has been provided to Ms Coombe. As at the date of this statement, Mr 
Holland is currently reviewing the function for Ms Bowker and Mr Zwarts. I expect to provide 
draft return to work plans to each of them shortly.’77

[55] Mr McCluskey supplemented this evidence as follows:

‘. . . At the time of my first statement, certain security upgrades had been approved but not 
implemented. Since 22 May 2015, the following security upgrades have been implemented at 
the West Swanson Terminal:

a) swipe card access has been installed for access to the womens’ locker room and 
programming is currently underway;

b) additional security cameras have been introduced to cover entry into the womens’ locker 
room and the overall common area;

c) additional security cameras have been introduced to cover the entrances into the amenities 
building including the stairway;

d) additional security cameras have been introduced to cover the administration walkway and 
stairs from ground floor to the first floor; and

e) additional lighting has been introduced around the amenities building.

. . . in the context of the return to work meetings I have had with Ms Coombe, Ms Bowker and 
Mr Zwarts, they have each raised concerns to me in connection with DP World’s finalisation 
of the complaint and allegations that they had raised. This was discussed in some of the return 
to work meetings and calls that I outlined in my first statement and are set out above. I 
understood that each of Ms Coombe, Ms Bowker and Mr Zwarts sought a more 
comprehensive response to what issues had been considered by DP World and what the result 
of DP World’s inquiries and investigations into these issues had been (in addition to the 
responses that had been provided to them previously).

As a result, I sought to prepare for each of Ms Coombe, Ms Bowker and Mr Zwarts a 
document that set out the concerns they had raised, including formal and informal complaints, 
and including concerns that dealt with conduct other than bullying and harassment. My 
purpose in this exercise was to address their concern that they wished for more comprehensive 
information about these issues. My objective was [to] get this information together so that they 
would each have a comprehensive response to identify the outcomes of each issue raised. [sic]

As I was aware that a number of the issues had been raised some time prior to when I 
commenced in my role, I reviewed DP World’s records, made inquiries of various employees 
of DP World and instructed Seyfarth Shaw Australia to assist with preparation of a document 
that would set out the allegations raised by Ms Coombe, Ms Bowker and Mr Zwarts 
concerning other employees of DP World and the status of each matter.

On 20 July 2015, a document has been provided to the solicitors for each of Ms Coombe, Ms 
Bowker and Mr Zwarts identifying the status and outcome of the various concerns and 
allegations raised by them involving DP World employees . . .

                                               
77 Exhibit 25 at [74][78].








29

In relation to one of the concerns identified by Ms Bowker, she has recently provided some
further evidence in connection [to] this matter. DP World has engaged an external investigator 
to investigate the matter. That process is ongoing as at the date of this statement. [sic]

. . .

I refer to paragraph 75 of my first witness statement, which set[s] out in paragraph[s] (a) to (h) 
various meetings with Ms Bowker, Ms Coombe and Mr Zwarts in connection with their return 
to work. In addition to those meetings, the following meetings have occurred since 22 May 
2015: [sic]

a) 27 May 2015: I attended a meeting with Ms Cutajar, Mr Holland, Ms Coombe and her 
support person Rebecca Campbell;

b) 15 June 2015: I attended a meeting with Ms Bowker and Mr Holland;

c) 16 June 2015: I attended a meeting with Mr Zwarts and Mr Holland; and

d) 24 July 2015: I attended a meeting with Ms Bowker, Ms Campbell and Mr Holland.

As at the date of this statement, there are further meetings with Ms Bowker and Ms Coombe 
planned for next week.

. . . Return to work plans and risk assessment have been prepared by DP World and I have 
provided these to each of Ms Coombe, Ms Bowker and Mr Zwarts as follows:

a) Ms Coombe

i. On 22 May 2015, I sent Ms Coombe a return to work plan for her review and for 
discussion at the meeting on 27 May 2015 . . .

ii. At the meeting on 27 May 2015, Ms Coombe had the opportunity to provide comments 
to me on the return to work plan. She was also provided with a copy of a risk 
assessment prepared by DP World . . .

iii. Following the above meeting, on 11 June 2015 Ms Coombe emailed me providing 
comments on the risk assessment and attaching a table of risks . . .

iv. On 23 June 2015, I sent Ms Coombe an email regarding her return to work, attaching a 
revised return to work plan and risk assessment . . .

b) Ms Bowker

c)
i. On 12 June 2015 I sent Ms Bowker an email attaching a return to work plan for 

discussion . . .

ii. At the meeting on 15 June 2015, Ms Bowker had the opportunity to provide comments 
to me on the return to work plan and risk assessment which was provided to her in that 
meeting;

iii. Ms Bowker sent me and Mr Holland an email on 17 June 2015 at 2:35pm with a 
suggestion in connection with the risk assessment. I responded to Ms Bowker’s email 
on 19 June at 4:19pm . . .








30

iv. Ms Bowker sent an email to me, Mr Lee and Mr Holland on 19 June 2015 at 3.19pm 
outlining various comments in connection with the risk assessment and her return to 
work . . . I confirmed receipt of this email in my email back to Ms Bowker at 4:19pm 
and confirmed that I would review this and respond early the next week . . .

v. On 25 June 2015 at 10.55am , I sent Ms Bowker an email responding to her email of 19 
June 2015 at 3.19pm and attaching a revised return to work plan and risk assessment . . .

c) Mr Zwarts

i. On 1 April 2015, Mr Zwarts sent me an email setting out his concerns about returning to 
the workplace . . .

ii. On 12 June 2015 I sent Mr Zwarts an email attaching a return to work plan for 
discussion . . .

iii. At the meeting on 16 June 2015, Mr Zwarts had the opportunity to provide comments to 
me on the return to work plan and risk assessment which was provided to him in that 
meeting; and

iv. On 19 June 2015, I sent Mr Zwarts an email attaching a revised risk assessment 
document and meeting notes for the meeting that occurred on 16 June 2015 . . .

In addition to the specific meetings and correspondence noted above, I have had telephone 
calls and emails directly with the Applicants and their representatives, including Mr Lange of 
Piper Alderman and Ms Campbell of Campbell Employee Relations in connection with their 
leave arrangements and their return to work.’78 [References to annexures omitted]

[56] In addition, but unrelated to the Applicants’ circumstances, a WorkSafe inspector 
conducted a site visit at WS Terminal and a review of DP World’s systems to prevent and 
respond to workplace bullying. The inspector prepared an entry report dated 19 May 2015 in 
which he concludes that DP World:

 has comprehensive risk control processes in place to prevent and respond to 
workplace bullying;

 has comprehensive training in place to prevent and respond to workplace bullying; 
and

 is meeting its obligations under the Occupational Health and Safety Act 2004 to 
provide a safe working environment free from risks to health and safety in regards to 
workplace bullying.79

[57] The essence of the Applicants’ criticism of DP World’s efforts to produce a risk 
assessment and a RTW plan applicable to each of them may be summarised as follows:

 A thorough risk assessment cannot be undertaken until an investigation or enquiry 
into each outstanding complaint or concern raised by the Applicants has been 
completed and the outcome communicated to the relevant Applicant;

                                               
78 Exhibit 26 at [5] and [7][15].
79 Exhibit 26 at [6] and Annexure GM55 at [5], [7] and [8].








31

 The risk assessments that have been completed are not specific to the circumstances 
faced by the Applicants and are generic in nature, thus they fail to identify and 
address the specific risks of further workplace bullying that confront the Applicants;

 There was inadequate consultation and certainly no agreement in the preparation of 
the risk assessments and RTW plans;

 The risks and the control measures identified in the risk assessments do not 
thoroughly and robustly address the Applicants’ specific concerns and the RTW 
plans developed lacked ‘hard measures’ to address the continuing risk that has been 
identified;

 The control measures identified in the risk assessments do not address, and are 
inadequate to, combat the continuing and prevailing culture of the Code; and

 Some controls identified in the risk assessments have already been proven to be 
ineffective;

 The RTW plans developed lacked ‘hard measures’ to address the continuing risk that 
has been identified.80

[58] The specific nature of these criticisms was given amplification in the evidence of 
Ms Rebecca Campbell, a Workplace and Employee Relations Consultant who acted as a 
support person for Ms Coombe and Ms Bowker during the course of various meetings with 
DP World during which the risk assessments and the RTW plans were discussed. Ms 
Campbell’s evidence which is reproduced below is partly opinion, partly hearsay, and I 
observe that particular allegations made about responses given by DP World representatives 
during certain meeting are disputed. I do not need to resolve that dispute. The evidence is 
reproduced to give context to the Applicants’ concerns. Relevantly, Ms Campbell’s evidence 
was as follows:

‘I have attended meetings with DP World representatives concerning Annette Coombe and 
Sharon Bowker as follows:

(a) 27 May 2015 (attended by Coombe, McCluskey, Holland and Claire Cutajar);

(b) 24 July 2015 (attended by Bowker, McCluskey and Holland);

(c) 27 July 2015 (attended by Coombe, McCluskey and Holland); and

(d) 29 July 2015 (attended by Bowker, David Gunzburg and Seta Samimi).

In the course of those meetings, I have acted as a support person for Coombe and Bowker. I 
have also participated in exchanges with DP World representatives where invited to do so, and 
in response to any questions asked of me directly by DP World representatives.

In the course of those meetings, I had exchanges and observed responses from DP World 
representatives in relation to the following issues:

                                               
80 See Applicants’ Outline of Final Submissions (14 August 2015) at [24][26].








32

(a) Identification and resolution of unresolved risks to safety;

(b) Investigation and complaint handling process; and

(c) Demonstration of cultural change.

…

The meetings included a focus on the adequacy of the risk assessments prepared by DP World 
and on which DP World relied in advising Bowker and Coombe that (as was put in an email to 
Coombe from McCluskey on 23 June 2015… the position of DP World was that “there are no 
identified threats or risks that prevent your return to work or which have prevented you from 
returning [to work] earlier”.

In the meeting on 27 May 2015, Holland and McCluskey both said words to the effect that DP 
World would not know how safe it was for the applicants to return to work until they are 
actually back in the workplace and “sitting in the seat” or had “time in the chair”.

The meeting continued with words put by Holland and McCluskey to the effect:

(a) An example of DP World’s lack of capacity to predict or control the behaviour of 
employees toward Coombe was given as, if Coombe were to walk past the smoking shed, 
“you couldn’t guarantee that employees won’t say anything to Annette, especially in light 
of the current antibullying action”;

(b) DP World would “only get surety [of safety] by time in the chair” and “at the end of the 
day it’s about time in the chair”;

(c) DP World couldn’t “control or predict how people were going to behave in light of the 
action [the applicants were taking] in the Commission against the company and the 
MUA”; and

(d) Holland considered the risk assessments were “just pieces of paper” which Holland 
likened to “AVO’s and domestic violence - they are pieces of paper that don’t necessarily 
stop people from behaving badly”.

The logic of this concerned me on the basis that it implied no action could be taken by DP 
World to increase its capacity to identify and introduce measures to mitigate against particular 
risks that the applicants could be exposed to in the workplace associated with their having 
commenced these proceedings. It also concerned me because my understanding of the process 
of workplace risk assessment is that a risk should be identified by reasonably available means 
before it manifests itself, rather than by allowing a risk situation to develop and seeing 
whether the risk occurs.

I put to Holland and McCluskey during each meeting that DP World could and should take 
action by, for example, completing investigations into remaining ‘open’ issues and taking 
action to address risks identified in those processes before deciding that no risk was present. 
No substantive response was provided to this proposition other than that DP World did not 
consider it necessary to do so.

In the meeting on 24 July 2015 I gave as an example, the risk of death or injury which was 
represented by the incident in which while working on a ship, Knott had twice dropped a bar 
narrowly missing Bowker (in September 2014), and put to McCluskey that without having 
investigated that incident it could not be said that there are “no risks” in the workplace, where 
a serious safety issue was outstanding and if not dealt with could end up with Bowker injured 








33

or dead. McCluskey did not give a substantive response, other than to say he did not know 
what had happened as it had not been investigated yet.

In the course of the meetings, in connection with the identification of risk, I asked Holland and 
McCluskey what information had been available to DP World leading to a decision to allocate 
external security/protective services to each of the Applicants, and how the risk assessment 
had accommodated that information. No substantive response was provided.

…

I had a number of exchanges with McCluskey in those meetings in which I became concerned 
that McCluskey was unable to identify or discuss details as to the status and outcomes of 
investigations being conducted or which had been completed by DP World, and the process 
had not involved checking information with the complainants or keeping them regularly 
informed as to the progress or promptly conveying to them the outcomes of investigations.

Prior to the meeting on 27 July 2015, Coombe had been provided with a summary document 
. . . During the meeting with Coombe, Coombe asked McCluskey where the proposed 
Equipment Controller (EC) training would take place. McCluskey said at a workstation 
outside the supervisors’ office. Coombe identified that that would place her in directly in the 
vicinity of two supervisors who had threatened her as set out in a complaint by her (Kearney 
and Hodge), and that according to the summary document the complaint against them was still 
open after a very significant period of time.

McCluskey was unable to identify the outstanding issue or the nature of the threat, but stated 
that Coombe should not have a concern because supervisors are “held to account”. McCluskey 
said he would have to check what had occurred in relation to the threat, and gave no basis to 
identify that either of the supervisors making the threat had been or were being “held to 
account”. This led into a discussion about McCluskey’s knowledge of and familiarity with the 
summary document . . . as Coombe identified that it contained inaccuracies, and gave her no 
confidence in the quality of the document or any investigations. McCluskey said words to the 
effect that it had been compiled by DP World’s solicitors, not him, and he would schedule 
another meeting to go through the summary document.

In the course of the series of meetings, an issue was raised of whether DP World would 
consider issues raised informally as complaints requiring some action in the event the 
information revealed a potential breach of workplace policies. This occurred when Bowker on 
24 July 2015 gave an example of her dissatisfaction with DP World’s response to her 
complaint that Peter Brooker had reported back to employees at the West Swanson Terminal 
(WST) about protective services presence at her house, but the investigation had not dealt 
with that issue. McCluskey said in response that it hadn’t been investigated because it was 
only an informal complaint which had not come through the “proper complaint process”, but 
that he had spoken to Brooker who had denied the conduct. I said words to the effect that if 
McCluskey had information of concern about workplace conduct, regardless of how the 
information had come to him it would surely be pursued. McCluskey then said words to the 
effect that he would and does treat information about workplace conduct as a complaint 
regardless of whether made formally or informally.

…

During the series of meetings, Holland and McCluskey on several occasions sought to assure 
Bowker and Coombe that they could rely on the culture of the workplace having started to 
change and issues were taken seriously and dealt with appropriately and quickly. I became 
concerned that despite this there were several examples arising during the series of meetings 
of conduct which did not appear consistent with the Applicants being able to trust that conduct 








34

in the workplace would be reasonably predictable. Examples of my concern were raised in the 
discussions . . .’81

[59] The Applicants also gave evidence about the development of the risk assessments and 
the RTW plans. Ms Coombe gave evidence, inter alia, that:

 She explained to DP World that she wanted all of her complaints and concerns 
appropriately investigated and managed so that she could feel confident about safety 
returning to work and that the investigations needed to be included in her return to 
work arrangements as they were all ‘risks’ to which she may be exposed when she 
returned to work;82

 She was led to believe that she should be able to participate in an external risk 
assessment, as the risk assessment was being conducted specifically for her, but that 
this had not to date occurred and she did not feel that the risk assessment process has 
been conducted transparently or sufficiently enough to deal with her specific 
scenario;83

 The failure by DP World to resolve all of her outstanding complaints prevented her 
from returning to work and perpetuated the risk and the uncertainty of a return to 
work;84

 She is not persuaded that a change in DP World policies deals with her issues and 
concerns about returning to work in an unsafe environment;85

 She expects that on a return to work she would not be actively ostracised, however 
she does not believe that the workforce or management have the necessary self-
discipline to control any form of ostracism that might be exhibited towards her on 
her return.86

[60] Ms Bowker’s evidence was to similar effect. Ms Bowker said, inter alia, that:

 She disagreed with DP World’s position that the on-going and outstanding 
investigations into the complaints should not prevent her from returning to work;87

 She maintained that the resolution of her complaints and the capacity to have 
confidence that complaints will effectively and quickly be dealt with in a way that 
acknowledges the impact of the culture of silence is part of a safe workplace;88

 She does not have confidence in DP World’s procedure for investigating complaints, 
in part because, DP World has taken a very long time to investigate her concerns 
without providing her with any real explanation for the delay;89

                                               
81 Exhibit 17 at [4]–[18].
82 Exhibit 6 at [96].
83 Ibid at [97].
84 Ibid at [100].
85 Ibid at [99].
86 Ibid at [101].
87 Exhibit 2 at [78].
88 Ibid.
89 Ibid at [79].








35

 She acknowledged the steps taken by DP World to conduct a review of security 
including the installation of surveillance cameras but maintained that there had 
always been surveillance cameras all over the WS Terminal, but there never 
appeared to be any available footage to verify the claims that the various Applicants 
had made;90

 She maintained that DP World misunderstood the nature of the ostracism 
experienced by her, when, as Mr McCluskey characterised in his witness statement, 
that ‘interpersonal difficulties . . . are in part the product of the on-going divisions in 
the workforce’ and that his suggestion, for example, that Ms Bowker should sit at a 
table where the other staff are not sitting so that she would not be ostracised, is no 
solution at all.91

[61] Mr Zwarts gave evidence inter alia, that:

 The constant failure by DP World to verify issues raised means that there has not 
been an appreciable change in attitude amongst the workforce;92

 DP World has not taken any steps of which he is aware that would result in 
complaints and concerns raised being dealt with any more effectively or
expeditiously under the current policy than was the case under the pre-existing 
policy;93

 Based on his observations, he does not believe that the initiatives discussed by 
Mr McCluskey in his evidence have achieved anything to make real inroads in 
dealing with the ‘culture of silence’ and its impact on whether the outcome of 
complaints made to DP World reflect the actual behaviour about which a complaint 
is made.94

[62] I accept that the Applicants genuinely hold the beliefs and views expressed by them in 
their evidence and that the concerns that they have expressed about returning to the workplace 
are genuinely held concerns. Their concerns are wholly understandable given their respective 
experiences of conduct directed towards them in the workplace since mid-2013.

[63] I also accept on the evidence that DP World has, in preparing its risk assessments 
relating to each Applicant, tried to identify the kinds of bullying conduct about which there is 
a real possibility could re-occur when Applicants return to work. This is evident in the various 
annexures attached to the further witness statement of Mr McCluskey and in particular the 
risk assessments found amongst those annexures.95 It is apparent that DP World has assessed 
the gravity of each risk it has identified and the likelihood of the each identified risk occurring 
in the workplace; DP World has identified how each risk it has identified is likely to arise and 
how it will be eliminated or controlled.96

                                               
90 Ibid at [80].
91 Ibid at [81].
92 Exhibit 12 at [33].
93 Ibid at [32].
94 Ibid at [38].
95 Exhibit 26, Annexures GM–63, GM–67 and GM–70.
96 Ibid.








36

[64] The risk assessments identify that which is regarded as an inherent risk, that is the risk 
identified without control measures being adopted, and a residual risk, that is the assessment 
of the level and gravity of the remaining risk after control measures identified have been 
implemented. As Mr Holland said in his evidence, this is a standard risk management 
approach or assessment tool used to measure the inherent level of identified risks and the 
residual risk following the implementation of control measures aimed at eliminating or 
reducing the identified risk as far as reasonably practicable.97

[65] In addition, DP World has prepared RTW plans for each Applicant, which include 
some specific measures to ensure relevant personnel of DP World are aware of the identified 
risks, will monitor the risks and act if any such risks eventuate.98 I accept DP World’s 
submission that the approach it has adopted is a conventional and appropriate system to 
manage workplace risks arising from such conduct.99 I also accept on Mr McCluskey’s 
evidence that DP World has taken a number of steps directed to minimising the prevalence of 
bullying and other inappropriate workplace conduct, and improving security at WS Terminal 
as well as the capacity to verify the occurrence of unacceptable conduct.

[66] I turn then to the specific criticisms of the risk assessments and the RTW plans raised 
by the Applicants and to which earlier reference has been made. First, there is the issue of the 
adequacy of consultation and the absence of agreement of the Applicants in the preparation 
and finalisation of the risk assessments and RTW plans. As I have already observed, the 
criticism that there is an absence of agreement misunderstands the nature of these instruments. 
A RTW plan is an instrument usually prepared by an employer pursuant to workers 
compensation legislation in discharge of obligations to return injured workers to the 
workplace, where consultation but not agreement is required. Similarly, risk assessments are 
undertaken to assist, relevantly an employer to discharge the employer’s obligations under 
occupational health and safety legislation, in relation to which obligations to consult (but not 
to agree) arise. DP World cannot be fairly criticised for an absence of agreement on the 
content of these instruments.

[67] As to consultation, in my view, the evidence supports a conclusion that DP World has 
undertaken a significant level of consultation with the Applicants about the risks it has 
identified and about those identified by the Applicants. The evidence discloses that DP World
has accepted risks identified by the Applicants and that it has included such risks in its risk 
assessment. I am satisfied on the evidence that DP World has engaged in sometimes detailed 
exchanges with the Applicants about their respective concerns and that these issues have been 
discussed at various meetings held with the Applicants by DP World.

[68] I accept Mr Holland’s evidence that the risk assessments for each Applicant had been 
prepared taking the view that DP World was better to err on the side of caution and produce 
the risk assessment based on investigations into outstanding complaints being affirmed and 
that control measures were identified to mitigate against the recurrences of conduct the 
subject of the complaint.100 Indeed, Ms Campbell acknowledged that during a meeting on 
27 May 2015 attended by Ms Campbell and Ms Coombe, DP World representatives said that 

                                               
97 Exhibit 37 at [13]–[15].
98 Exhibit 26, Annexures GM–63, GM–67 and GM–69.
99 Outline of Closing Submissions of DP World (21 August 2015) at [9].
100 Transcript PN 4657–PN 4658.








37

the risk assessment had been prepared from the perspective that all risks coming from the 
complaints should be addressed, regardless of whether they were substantiated or not.101

[69] As to the substance of the consultations with each Applicant, Ms Bowker gave 
evidence that she was provided with risk assessments by both Mr Holland and 
Mr McCluskey.102 She attended meetings with DP World representatives about the risk 
assessment103 and accepted that she had an opportunity to provide input into the risk 
assessment document and raise to any risks that she thought were relevant to her during 
discussions at the meetings and various email exchanges.104

[70] The evidence discloses that: 

 At a meeting on 15 June 2015, Ms Bowker and DP World representatives discussed 
the risk assessment;105

 Ms Bowker sent emails to Mr McCluskey and Mr Holland on 17 June 2015106 and 
19 June 2015107 which contained comments on the risk assessments. In the 19 June 
2015 email, Ms Bowker set out a number of matters that she sought be addressed by 
DP World; 

 DP World, through Mr McCluskey, responded on 25 June 2015, via an email to 
Ms Bowker attaching a revised RTW plan and risk assessment.108 A review of the 
risk assessment attached to the email discloses that it seeks to address the matter 
identified by Ms Bowker. By way of example the issues of ostracism,109 graffiti,110

and the Code111 are each dealt with in the risk assessment as are many other matters 
raised by Ms Bowker;112

 A further discussion about the risk assessment occurred at a meeting held on 25 July 
2015at which Ms Bowker raised concerns about matters she considered had not been 
included and Mr Holland explained where these were incorporated into the risk 
assessment.113 Ms Bowker said that, although she was not sure if all the issues were 
covered, the majority of them had been;114

 Ms Bowker also gave evidence that everything had been discussed and covered.115

                                               
101 Transcript PN 2801.
102 Transcript PN 333–PN 334.
103 Transcript PN 351–PN 355.
104 Transcript PN 783–PN 784.
105 For example Transcript PN 764.
106 Exhibit 26, Annexure GM–65.
107 Transcript PN 354; PN 371 and Exhibit 26, Annexure GM–66.
108 Exhibit 26, Annexure GM–67.
109 Ibid at Items 1–10, 13–14 and 16.
110 Ibid at Items1– 5 which deal with the risk of vandalism and property damage.
111 Ibid at Item 15.
112 The issue of the update of the women’s change room to include male change room – Item 5; inclusion of additional words 
to describe behaviour such as physical violence — Items 1–5, 8 and 13, false allegations — Item 15, on-going ostracisation 
— Items 1–10, 13–14 and 16 and property damage — Items 1–5; the ship was identified as a very dangerous place — Items 
8–9 and 14.
113Transcript PN 775.
114 Transcript PN 835–PN 837.
115 Transcript PN 616–PN 619.








38

[71] As to consultation with Ms Coombe, she gave evidence there had been no consultation 
with her from the first risk assessment to the second risk assessment.116 Ms Coombe accepted 
that she had the opportunity to raise the risks she was concerned about and talk to DP World 
about why she had those concerns.117 The evidence discloses that Ms Coombe participated in 
discussions with DP World about the risk assessment and that she provided written comments 
which were considered by DP World representatives when developing the second risk 
assessment and RTW plan, for example: 

 Ms Coombe sent a table to Mr McCluskey on 9 April 2015 which set out comments 
concerning risks that she perceived in connection with her return to work;118

 Ms Coombe was sent the draft RTW plan by DP World on 22 May 2015 for 
discussion119 and a meeting was scheduled to discuss the draft plan or perhaps only 
the risk assessment;120

 Ms Coombe attended a meeting with DP World representatives on 27 May 2015,121

at which a risk assessment was provided and discussed.122 Ms Coombe identified 
that there were matters that should be included in the risk assessment, such as the 
Code, her open complaints, sabotage and ostracisation.123

 DP World and Ms Coombe also discussed alternative work locations and jobs;124

 Ms Coombe sent a further email to DP World on 11 June 2015 in which she set out 
her comments on the perceived risks.125 The matters identified included concerns 
about adverse conduct towards her while in the Equipment Control role and in the 
administrative building and concerns about being singled out for special treatment.126

 By email sent on 23 June 2015, DP World provided Ms Coombe with a further RTW
plan and risk assessment,127 with the former appearing to have been modified to 
include both internal roles and external alternative roles. The risk assessment also 
appeared to identify risks and proposed control measures associated with various 
matters raised such as verbal abuse, intimidation, ostracisation, violence, physical 
assault, the Code and fabricated or vexatious reports;128

 A further meeting was held on 27 July 2015129 at which the risk assessment was 
discussed;

[72] Though there was some dispute about the extent to which various assessments in 
Ms Coombe’s risk assessment had changed, and reasons for the change, from one draft to the 
                                               
116 Transcript PN 1273.
117 Transcript PN 1478–PN 1479.
118 Transcript PN 1494–PN 1532; Exhibit 10.
119 Exhibit 26, Annexure GM–60.
120 Transcript PN 1487–PN 1491.
121 Transcript PN 1156; Exhibit 5, Attachment AFC–57.
122 Transcript PN 1159–PN 1162.
123 Transcript PN 1170 and PN 1185.
124 Transcript PN 1209, PN1597 and PN 1600.
125 Transcript PN 1189, Exhibit 5, Attachment AFC–58.
126 Transcript PN 1643–PN 1646.
127 Transcript PN 1482, Exhibit 26, Annexure GM–63.
128 Exhibit 26, Annexure GM–63.
129 Transcript PN 1209.








39

next, I am satisfied with the explanation given by Mr Holland as to the reasons for changing 
the assessments, which appear to be based on his improved knowledge of the site after taking 
up his current role.130

[73] As to the position of Mr Zwarts it seems there had been discussions and exchanges of 
proposals between DP World and Mr Zwarts about the risk assessments and matters he 
wished to have considered by DP World. For example:

 During a meeting between DP World representatives and Mr Zwarts on 14 April 
2015, at which Mr Zwarts discussed his concerns about sabotage and security;131

 A draft RTW plan was sent to Mr Zwarts on or about 12 June 2015;132

 On 16 June 2015 Mr Zwarts attended a meeting with DP World representatives,133 at 
which Mr Zwarts raised issues with the RTW plan;134

 A revised risk assessment together with notes of the 16 June 2015 meeting were sent 
to Mr Zwarts by email on 19 June 2015.135

 Mr McCluskey told Mr Zwarts at the conclusion of the 19 June 2015 email that if he 
had any questions he should call Mr McCluskey, and Mr Zwarts’ evidence was that 
there have been numerous emails and numerous correspondence with 
Mr McCluskey.136

[74] It seems to me that the Applicants’ concerns about the adequacy of the consultation is 
coloured by a view that the risk assessments and RTW plans should be finalised by 
agreement. Whilst doubtless that would be desirable, it is not in my view essential. It seems 
clear enough that consultation with the Applicants about these instruments did occur and the 
views expressed by the Applicants have been taken into account, though not every view 
expressed has been accepted by DP World.

[75] Turning next to the Applicants’ criticism to the effect that a thorough risk assessment 
cannot be undertaken until an investigation or enquiry into each outstanding complaint or 
concern raised by the Applicants has been completed, and the outcome communicated to the 
relevant Applicant. I do not accept this in the context of the circumstances faced by the 
Applicants. It seems to me clear enough that the risk assessments prepared by DP World 
address both at a general level and at a level of specificity, bullying conduct of the kind 
experienced by each of the Applicants. Moreover, as I have earlier indicated, Mr Holland 
gave evidence, which I accept, that the risk assessments for each Applicant had been prepared 
taking the view that DP World was better to err on the side of caution and produce the risk 
assessments based on investigations into outstanding complaints being affirmed and that 
control measures were identified to mitigate against the recurrences of conduct the subject of 
the complaint.137 This point had been communicated at least to Ms Coombe.138

                                               
130 Transcript PN 4434–PN 4470.
131 Transcript PN 2060–PN 2071.
132 Transcript PN 2077–PN 2082.
133 Transcript PN 1970–PN 1971.
134 Transcript PN 2083.
135 Transcript PN 1967–PN 1970; Exhibit 26, Annexure GM–70.
136 Transcript PN 2004.
137 Transcript PN 4657–PN 4658.








40

[76] As to the question whether risk assessments that have been completed are specific to 
the circumstances faced by the Applicants, it seems to me on reviewing each risk 
assessment139 and taking into account that which fell from the consultation discussed earlier, 
that the assessments have been prepared in response to hazards and risks identified by DP 
World and each of the Applicants. The risk assessments are responsive to the concerns raised 
by each Applicant. This criticism is not made out on the evidence.

[77] Next is the criticism that the risks and the control measures identified in the risk 
assessments do not thoroughly and robustly address the Applicants’ specific concerns and that
the RTW plans developed lacked ‘hard measures’ to address the continuing risk that has been 
identified. The nature of the criticism and the difficulty in articulating solutions to the 
criticism are best encapsulated in the following extracts from the transcript of proceedings:

‘THE DEPUTY PRESIDENT: Is the point that you’re trying to elicit that the risk assessments 
that have been undertaken have been inadequate to mitigate the risk?

MR RINALDI: Essentially yes, your Honour.

THE DEPUTY PRESIDENT: Well, in relation to the past risk assessments, that could have 
been done in her statement.

MR RINALDI: Yes. And they’re really superseded by the more recent ones.

THE DEPUTY PRESIDENT: Well, why don’t we focus on the more recent ones then?

MR RINALDI: Yes.

And in terms of those risk assessments provided to you by Mr Holland, Ms Bowker, what’s 
your view of the adequacy of those risk assessments?---The – I’ve had two meetings in relation 
to the risk assessment. The first meeting was describing to me how they’re created, how it 
works. It was a generic risk assessment. It just covered a lot of – a lot of basic issues around 
bullying. We had a fairly lengthy meeting about what I would like included in it, if I was willing 
to accept a generic risk assessment. I was understanding that there’d be an assessment in 
relation to my own personal needs returning back to the workplace. We had that meeting. I- - -

Who had that meeting?---Pardon?

Who had that meeting?---Who – sorry?

Who was there?---Adam Holland and Glenn McCluskey and myself. And I followed it up with 
an email but I think there were about six points that I would like added to the risk assessment.
We didn’t actually get into – we just basically talked about identifying the risks - we didn’t even 
talk about the measures in place. And then they were going to have another meeting with me at 
a later date to then discuss the measures and – which they put in place to combat those risks.
And that meeting was on the 24th – maybe – it might have been – there was two meetings 
anyway. So- - -

24 July?---Yes, I think so. That was the second meeting. And I noticed there were a few things 
that I had asked to be put in that weren’t there, so we had issues, for example, there was just a 
generic – ostracisation and I’m saying what about ongoing ostracisation in large groups of 

                                                                                                                                                  
138 Transcript PN 2801–PN 2802.
139 Exhibit 26, Annexures GM–63, GM–67 and GM–70.








41

people, like mentality, graffiti, the risks of making a complaint, risks for verifying complaints, 
risk if you’re not a union member, risk if you don’t strike – all these things that I clearly 
identified that were going on in our workplace. There were actual risks for employees that 
weren’t in that document. So even though it was happening to me and they were only my set of 
circumstances, I know that it should have really covered a generic one anyway. So we were –
there was a bit of toing and froing about what should be in, what shouldn’t, what’s generic, 
should it be for me? And we never really got to the bottom of it – we still haven’t as we speak 
today. Also, I think the last meeting I had on 24 July, I had been sent the updated document and 
I was just looking at the measures that were in place for that risk assessment. So I do recall in 
the meeting with Adam Holland, I said to him, well you know, “You’re not clearly identifying 
the risk for me. What do you think the main risk for me to be returning to workplace?” And he 
said, “Ostracisation”. And I said, “Okay, well where’s that in my document?” for me, my 
personal set of circumstances were ostracisation. Because it’s not going to be the same for 
everybody else – our issues are fairly extreme and there are specific issues around us because of 
the situation we’re they’re in. And he said, “Well, the measures are here in the document”. I 
looked at the document and said, “I’ve tried those measures, I’ve tested those measures out, 
they’re not working for me so we obviously need to put some hard measures in in relation to my 
return”. That was our last meeting we had which was on 24 July and we haven’t actually come 
up with any solution since then. So the risk assessment discussions have been to and fro and 
there’s a level of, I suppose, disagreement around those.

. . . 

You said there’s a lack of hard measures. Can you give some – and again, it’s probably partly 
what you just have been saying, but is there anything in particular that you feel was necessary as 
hard measures that hasn’t been proposed?---Gee, you know, I’ve spent a lot of time thinking 
about that, how to go back into the workplace feeling fulfilled and safe. It’s hard when you 
know that the management team are never getting to the bottom of anything, so the code of 
silence is the biggest danger to me. It’s very hard to be expected to go back to work knowing 
that the only way you’d be able to verify your complaint is if you’re assaulted in the perfect set 
of circumstances and that would be under a security camera with an executive watching over.
Other than that, I’ll fall short of having anything verified. So I have really tried hard about what 
I could do. Working with particular people would help. You know, Stephen Zwarts is, you 
know, has been a fantastic person to work with although it puts pressure on him having to watch 
over me. And to be honest, we had those measures in place in the past and I was hip and 
shouldered while he was looking down at a sheet, a worksheet – he’s a foreman – and missed 
the whole incident. So – but it does minimise it, but it won’t you know, get rid of it, which you 
know, I’ve thought about who I could work with. To be honest, I’ve made complaints and I 
have stipulated my witnesses and some of those people were friends of mine. DP World have 
interviewed them and they’ve denied everything. So in other words, the people I think I can rely 
on, I can’t. So – and I now know that. So it’s really about we have to identify the risk and put 
measures in place so I can just go to work, set about doing my tasks, consider the inherent risk 
that comes with the job, but I don’t think I should have to navigate the additional risks of being 
assaulted, ostracised and bullied. I don’t think that’s appropriate in light of my circumstances.
So very difficult, I think it would have a lot to do with who you work with and somehow in 
getting to the truth about what’s actually going on. I – I don’t know. I don’t – I really – I really 
don’t know.’140

[78] As DP World has pointed out,141 the risk assessments and RTW plans show that DP 
World has implemented a number of control measures aimed at reducing or mitigating the 
risks that have been identified and to provide support, monitoring and escalation options to 

                                               
140 Transcript PN 345–PN 355 and PN 591.
141 Outline of Closing Submissions of DP World (21 August 2015) at [10]–[12].








42

deal with issues if they arise. It is evident that the measures taken or proposed to be taken by 
DP World extend beyond the promulgation and distribution of new policies and include:

 Implementation of new CCTV; 

 Improved security access arrangements; 

 Briefings on expected standards of behaviour to all supervisors and managers 
dealing with the Applicants;

 New contact officers;

 New management personnel with specific responsibilities for dealing with concerns;

 The provision of a support person to work alongside;

 Rostering the Applicants to a particular panel or in a particular work area; 

 Daily report back meetings for initial period;

 Weekly management review meetings; and

 Ongoing review and consultation about RTW arrangements to make adjustments if
required.142

[79] I am satisfied that the control measures proposed by DP World are directed 
specifically at the identified risks, that is, those identified by DP World and by the Applicants 
themselves. I agree with DP World’s submission143 that the Applicants’ criticism of 
inadequacy is supported only by their respective opinion evidence. No expert evidence was 
called by the Applicants. I accept that the Applicants’ opinions are genuinely held and are the 
product of a desire, based on their respective past experiences, of a guarantee that future 
identified risks will not manifest. But DP World has, and it seems to me is willing to continue, 
to take steps to combat the identified risks and workplace bullying more generally. 

[80] As to the RTW plans, it seems to me that these documents contain, so called ‘hard 
measures’. Moreover, each RTW plan is an evolving instrument and there continues to be a 
willingness on the part of DP World to continue its development and refinement in 
consultation with the Applicants. So much seems clear from the follow extract from the 
transcript:

‘But you appreciate as well that the return to work document is an evolving document so it sets 
out work arrangements that you then meet and confer about. You’re aware of that?---Yes, I am 
aware of it but I think what we all need to be aware of is that I have had a lot of discussions 
about a lot of the issues that are going on in the workplace and I would have thought at least if 
you were going to provide me with a return to work document, some things, you know, wholly 
on your radar would have been written in the return to work document. For example if you are 
unable to do anything substantial with Mick Bracken because of his behaviour, for whatever 
reason, you’ve done your investigation, you’ve had to apply a written warning or whatever it 

                                               
142 Ibid at [11]. See also Exhibit 25 at [29]–[70]; Exhibit 26 at [7]–[19] and Exhibit 36 at [18]–[20].
143 Outline of Closing Submissions of DP World (21 August 2015) at [12].








43

is, and I have to go to work and work alongside him, surely there’d have to be some measures, 
hard measures, to ensure my safety with that man? And - - -

So you mean by hard measures, measures that separate you, the two of you?---Whatever we 
can come up with. I mean, you know, whatever we can come up with to make sure that I’m 
not going to be assaulted again.

I just want to understand what you mean. You’ve used that expression a number of times. I 
want to know what you mean?---Hard measures meaning clean. Not a big broad, “You know, 
we’ve got a policy”. Hard measures meaning firm, direct. Like the hard measure to me is that 
I’m working with Stephen Zwarts. That’s a hard measure. It’s clearly identified. Yes.

Okay, so let’s actually look at the document. So if you can turn over from the email to the 
return to work plan?---Where is it? Okay.

So you note that it says that, “Prepared in conjunction with the risk assessment plan”. So these 
two documents work together. Do you see that?---Mm-hm.

And it talks about what’s going to happen in your first week of return?---Yes.

And then possibly part of the second week - I’m down to the bottom paragraph. Because 
you’ll see there are various refresher training that’s recommended?---Yes. Yes.

And given the time you’ve been away from work?---Yes.

So:

The above training is then completed during the first week and possibly part of the second 
week.

And:

Timing is then determined by the successful completion of training modules.

And:

Following the completion of the training it’s anticipated that you will resume a normal shift 
roster performing the duties as detailed below.

?---Yes.

And then the duties that are to be performed are on the second page?---Yes.

And that’s your normal duties essentially, isn’t it?---Yes.

And that’s consistent with your preference not to have preferential treatment, isn’t it?---Yes.

And then in terms of the workplace supports, aids or modifications to be provided, there’s 
then a list which I won’t go through. But you see how they’re set out there?---Yes.

And in addition to that there are various control measures in the risk assessment that are being 
implemented to support your return to work in various parts of the workplace, described as the 
process, activity or work area?---Look, like I said before this document looks fantastic, right?
Look, the return to work plan is not finished. This document isn’t even finished. The last 








44

meeting I had with the defendant, Adam Holland said, “We’ve still got to work on this 
document”. So we’ve still got work to do on the document in my return to work plan.

And there’s no resistance to continuing to consider these issues, is there? It’s something in fact 
that the company wants to do with you?---Of course. But we’ve got to have this done before I 
go back to work. I mean, we can’t have me going back to work without it sorted and - but the 
other thing too is that some of the measures that you’ve got in place, I’ve tried them out. So if 
for example the workplace policy and the training for the employees and - is all that the 
measure is, and I’ve made a complaint and you’re not able to get to the bottom of it and the 
person has lied and there’s been no ramification, then that part of it has failed me. So then 
we’ve got to work out, “Okay, you’re not able to discipline that person because you can’t get 
to it, but you know what, we think Sharon’s been exposed to that behaviour. So we’re not able 
to get to the truth. We have the code of silence. So let’s just accept without disciplining that 
person, let’s accept that’s happening to her. So what hard measures other than what we’ve got 
in place can we put in place for her to make sure that she can just go back to work?” That’s 
what I’m asking.’144

[81] Turning then to the question whether the control measures identified in the risk 
assessments address, or are adequate to combat, the continuing and prevailing culture of the 
Code . The Applicants’ submitted that DP World’s policies are ineffective in the face of the 
Code and that this is particularly evident in the outcomes to the Applicants’ complaints. They 
submitted that since January 2015, DP World has investigated some of the Applicants’ 
complaints in accordance with its new policy and following investigation, DP World reached 
an outcome that it could not substantiate some of the Applicants’ complaints, and sent letters 
informing the Applicants of such. They submitted that what is clear from those letters is not 
that the behaviour did not happen, but rather that there is a reluctance of witnesses to co-
operate and verify complaints, as they claim they do not recall events.145 This reluctance is 
said to be due to the fear of ramifications for breaching the Code.146

[82] I have already concluded that although I have little doubt that DP World has and is 
taking steps to address the Code and culture at WS Terminal, I do not accept Mr McCluskey’s 
evidence that a Code does not exist at WS Terminal, and to which some employees still 
adhere. I also accept on the evidence and based on the Applicants’ recent experience with the 
progress of some of their complaints, that there remains a reluctance on the part of some 
employees at the WS Terminal to co-operate and verify complaints. This is consistent with the 
experience of Mr McCluskey.147 I also accept that more may be done to address the Code. I 
will return to this later in these reasons.

[83] The criticism that some control measures identified in the risk assessments have 
already been proven to be ineffective are not, with respect, properly made out since the 
Applicants have been absent from the workplace for significant periods since September 
2014. To the extent that the control measures relate to complaints made during those absences
the criticism seems on the evidence to relate to DP World’s policy and the Code,148 the matter 
is dealt with immediately above.

The position of Mr Zwarts

                                               
144 Transcript PN 849–PN 869.
145 Exhibit 2 at [41]–[42], Attachment SLB–47; Exhibit 12 at [12], Attachment SHZ–35.
146 Transcript PN 840 and PN 1358. See also PN 3582 re Mr McCluskey’s understanding of the code of silence.
147 Exhibit 25 at [15(b)].
148 Transcript PN 828.








45

[84] The evidence given by Mr Zwarts during the hearing before me raises the question 
whether I can be satisfied, in relation to him, that there is a risk that he will be bullied at work 
by the individual or group of individuals. Mr Zwarts’ evidence was as follows:

‘How do you feel about the prospect of going back to work now?---It’s not an option.

Are there things that could be done, steps that could be taken, to make it become an 
option?---Short of - - -

You’ve obviously thought about it, I assume?---Yes.

Do you have some thoughts about the feasibility of going back or whether certain steps need to 
be taken?---Yes, look, I think for us, we’re stuffed. You know, our careers - my career is 
stuffed. I’ve got nowhere to go. Nowhere. You know, this has caused family problems. I swore 
to - you know, I said to my wife, “Don’t make me choose. I’m going to do the right thing.”
I’ve jeopardised my marriage, put her through hell and we have gone through nearly two years 
of - and for what? For sticking up for doing the right thing. You know, she was asked to be a 
witness, for God’s sake, for something that went on, you know, at work. It’s just ridiculous, 
you know. Look, I did a bullying and - you know, all these people are saying, “Oh, it’s 
confidential,” and whatever. This isn’t the past. This is what we’re living, you know. It’s all 
right for them to say, “Oh, look, forget it. Forget it,” you know, “This is,” you know, “pre this 
and pre that.” This is the baggage we’re carrying, you know, and that’s - we can’t forget it.
You know, we can’t forget it. Ostracisation. You know, I was one of the - I was a very lucky 
person at this workplace. I had it all. I had, you know, the respect of the company, the workers, 
the union people. I had everything and I just couldn’t allow - you know, I’ve fixed up other 
stuff. I’ve tried to, you know, fix up things with people. I thought if I backed up Sharon, 
people would take me for what I was, but it’s just - the culture there is just too powerful. I’ve 
got plenty of supporters. They’re just too scared to step up. That’s the bottom line. They’re 
intimidated and, you know, quite frankly, I don’t blame them. I don’t blame them. Had we 
have known this was going on, we would have put our head in the sand. I did a bullying and 
harassment course with Kate Conlon and Sheryl Pastro, the HR people there. I went into this 
meeting and I think it was a four-hour thing. Anyway, the first two hours, not bad. It was good.
The second two hours, it was basically what I felt was all about me. I had to focus on a picture, 
because I was getting upset. So I’m focusing on this picture and I could tell Sheryl and that 
knew that I was getting upset. Anyway, at the end of the meeting, I walk out. Kate Conlon 
rings me up. She said, “Oh, it was pretty confronting, wasn’t it?” I said, “Yes, it was.” I said, 
“Very good presentation, but what a load of crap.” Anyway, I just walked off. You know, all 
the rest of them were mingling in the room and I had to get out. It was crap to me. You know, 
it was a good presentation and what they’re telling us, you know, fantastic, but at the end of 
the day you do what they say and here we are. You know, it’s just wrong. It’s just wrong and, 
unfortunately, I think people - you know, you lot are used to it. I’m not. I’m not. I’m just a 
worker. I just go to work, do my work and, you know, try and do the right thing. I don’t know 
why I’m like - I’ve got a - you know, my wife comes home and she tells me about stuff that 
has gone on at her work, and how, you know, blokes treat her. I’ve got a step-daughter. She 
worked at Safeway. She’d tell me, you know, about some of the pigs at her work. It disgusts 
me. You know, look - you know, it’s just wrong.’149

[85] On one view of this evidence, Mr Zwarts is unwilling to return to the workplace and 
there is no arrangement that could be put in place that would enable him to return. It seems 
clear from the most recent medical report that Mr Zwarts is fit to return to his duties and that 
there is no medical or psychological restriction preventing him returning to full duties.150 That 

                                               
149 Transcript PN 2101–PN 2104.
150 Exhibit 41.








46

medical report also observes that the ‘only barrier to return to work is the perceived level of 
lack of safety at work’.151 If Mr Zwarts is able but unwilling to return to work, then it seems 
to me clear enough that I cannot conclude that there is a risk that he will be bullied at work.

[86] However, this evidence cannot be understood in the abstract. The weight given to it 
needs to be assessed in context. Mr Zwarts has not resigned and his employment has not been 
terminated by DP World. He is fit to return to work, but is reluctant to do so because of his 
past experience, his perception of the level of safety and his general view as to his future as a 
stevedore. From his evidence extracted above, one senses an air of hopelessness borne out of 
a prolonged absence from work, his past experience of bullying conduct directed at him and at 
the other Applicants, and genuine fear of returning to work. In my view, this sense of 
hopelessness colours Mr Zwarts’ view that returning to the workplace is not an option. It 
would therefore be wrong to take his view as expressed above at face value without taking 
into account the circumstances in which it was uttered. Though I cannot force Mr Zwarts to 
return to work, I am not prepared to conclude that he will not. 

The MUA Respondents

[87] As I have earlier observed, the MUA Respondents whilst formally denying the 
allegations that have been made accepted, on the basis of the evidence before the
Commission, that there is a sufficient basis for the Commission to be satisfied that the 
Applicants have been bullied at work and to make the finding that is sought in relation to the 
Applicants.152

[88] The MUA Respondents submited153 that the requirement in s.789FF(1)(b)(ii) must be 
read in conjunction with the definition of bullying in s.789FD. Therefore, the Commission 
must be satisfied that there is a risk that there will be future repeated unreasonable behaviour 
towards the Applicants at work which would create a risk to health and safety. They
submitted that this risk must be more than speculative or remote to warrant the Commission’s 
intervention and at a minimum there must be a real risk. There is nothing controversial about 
this submission.

[89] The MUA Respondents submitted that there are four reasons the Commission should
not be satisfied that there is the requisite risk that the Applicants will continue to be bullied at 
work within the meaning of s.789FF(1)(b)(ii). These are dealt with below.

[90] The MUA Respondents submitted first, that the most recent conduct relied on by the 
Applicants occurred in September 2014,154 and the oldest conduct dates back to August 2013. 
The MUA Respondents say that the passage of time since particular conduct has occurred 
should be taken into account when determining whether that conduct can be relied on to 
establish future risk. It would seem to be an uncontroversial general proposition that as times 
passes after an incident less weight might be placed on that conduct as indicating a risk of 
future similar conduct. However, the particular circumstances in which time passes must also 
be taken into account.

                                               
151 Ibid.
152 The MUA Respondents’ written Outline of Final Submissions (21 August 2015) on this point were confined by 

Ms Coombe and Ms Bowker, but they accepted that in the evident that the jurisdiction argument raised in relation to 
Mr Zwarts was not accepted, the position the MUA Respondents had adopted in respect of Ms Coombe and Ms Bowker 
would also apply to Mr Zwarts; See Transcript PN 5091–PN 5093.

153 See generally MUA Respondents Outline of Final Submissions (21 August 2015) at [25]–[34].
154 Amended Points of Claim at [95B].








47

[91] Whilst I accept that the passage of time is a relevant consideration, the MUA 
Respondents’ submission ignores the fact that the Applicants have not been at work since 
September 2014.155 In these circumstances, it might equally be said that all that has happened
is that conduct of the kind experienced by the Applicants at work has dissipated vis-à-vis the 
Applicants because the Applicants have not been at work, and nothing more. In the 
circumstances of this case I do not accept that the passage of time should be treated in the 
manner suggested by the MUA Respondents.

[92] The MUA Respondents say secondly, that the state of affairs at the workplace has 
changed significantly since the alleged conduct. The changes include: 

 endorsing the ‘Zero Tolerance for Bullying Harassment and Violence in the 
Maritime Industry’ booklet which communicates to members that the MUA is 
opposed to bullying in the Maritime industry;156

 publishing an article in the Union Journal titled ‘MUA says “no” to workplace 
harassment & bullying’ which communicates to members that the MUA is opposed 
to bullying in the Maritime industry;157

 preparing a joint workplace statement with DP World which communicates to 
members that the MUA and DP World are opposed to bullying at DP World 
workplaces;158

 engaging an external consultant to develop policies for delegates and officials in 
relation to handling bullying and harassment issues;159

 providing training to officials, delegates and health and safety representatives in 
relation to bullying and harassment;160

 the incoming Victorian Branch Secretary has reaffirmed the Branch’s opposition to 
bullying and harassment in the Maritime industry by sending a communication to all 
members employed at the workplace;161

 appointing National Workplace Stop Bullying Officers to assist members facing 
bullying.162

[93] These are all laudable initiatives or developments. They will doubtless have some 
positive impact at WS Terminal and elsewhere in the Maritime industry. But these do not, 
with respect, show that things have changed on the ground. Moreover, it is evident that some 
of these initiatives are in their infancy163 or underdeveloped.164

                                               
155 Exhibit 25 at [72]; Exhibit 26 at [16].
156 Exhibit 19 at [35]; Attachment IB–10.
157 Exhibit 19 at [38]; Attachment IB–12.
158 Exhibit 19 at [39]; Attachment IB–13.
159 Exhibit 19 at [44]; Attachment IB–16.
160 Exhibit 19 at [45]–[46]; Attachment IB–16 and IB–17.
161 Exhibit 20 at [4]–[5]; Attachment IB–18.
162 Exhibit 20 at [7]; Attachment IB–19. 
163 See for example Transcript PN 3053–PN 3070.
164 See for example Transcript PN 3093–PN 3104.








48

[94] The MUA Respondents also pointed to the following matters as evidencing a change 
to the state of affairs at the workplace:

 Mr Mark Johnston is no longer employed by DP World; 

 The Federal Court challenge to Mr Johnston’s dismissal has been dismissed;165

 Mr Mark Kirkman is no longer employed by DP World;166

 Mr Bobby Guy is no longer employed by DP World; 

 A number of employees have been counselled or have received disciplinary 
warnings from DP World; 

 Mr David Schleibs is no longer an elected MUA official that has responsibilities at 
the workplace although he is seeking or at least making enquires about re-
employment with DP World;167

 the leadership of the Victorian Branch of the MUA has recently changed;168

 there has been a turnover of the DP World management team at the workplace; 

 DP World has taken various relevant steps including: 

o amending its Anti-Bullying policies;169

o implementing a register of complaints;170

 improving CCTV at the workplace;171

 conducting an extensive and thorough return to work process;172 and 

 installation of swipe access to the women’s change rooms at the workplace and other 
security and surveillance measures.173

[95] Many of these matters are canvassed earlier in these reasons, and I accept that they 
contributed to a changed state of affairs for the better.

[96] Thirdly, the MUA Respondents say that the Applicants failed to submit who will 
create the risk of future bullying and instead refer to five broad and imprecise issues. For 
reasons that will become apparent shortly I do not accept this submission. It is accepted that 
some of the individuals or members of the group responsible for the Bullying Behaviour

                                               
165 See [2014] FCA 1321.
166 Noting that Mr Kirkman has an extant unfair dismissal remedy application made pursuant to s.394 of the Act.
167 Exhibit 38.
168 Exhibit 20 at [9]–[13].
169 Exhibit 25 at [20]. 
170 Exhibit 25 at [25].
171 Ibid at [77].
172 Exhibit 26 at [12]–[19].
173 Exhibit 25 at [77].








49

directed at the Applicants were unknown then, and remain unknown. However, the group of 
individuals is able to be identified with some precision, as I have endeavoured to describe 
earlier in these reasons. The Code and culture earlier described continues to exist and does so 
because some of the group of individuals continue to adhere to the Code and Culture.

[97] As to the MUA Respondents’ submission that it is not apparent how it could be said 
that the five issues, identified by the Applicants – ‘continuing code of silence’, ‘inadequate 
workplace investigations’, ‘incomplete workplace investigations’, ‘inadequate return to work 
arrangements’ and ‘delay in dealing with issues’ - could be capable of indicating a risk of 
future bullying by any particular individuals. The answer becomes self-evident once it is 
accepted that I am able to identify, by some description, the individual or group of 
individuals, whether known or unknown, who engaged or participated in the Bullying 
Behaviour by reference to the system of authority and control at WS Terminal and that there 
are likely to be unknown individuals still employed by DP World who subscribe to the 
system. Whilst I accept that the five issues identified by the Applicants do not speak directly 
to the risk of bullying, they do speak of an assessment of the gravity of the risk of the 
Applicants being bullied by members of this group when the Applicants return to work. It is 
not necessary, in my view, to identify the form that workplace bullying might take in order to 
be satisfied that there is a risk of it. It is sufficient, in my view, to be satisfied as I am that the 
members of a group who adhere to the Code and system earlier described engaged in Bullying 
Behaviour, that the Code and system contributed to the Bullying Behaviour, that the Code and 
system continues to exist at WS Terminal, and in the result there is a risk of repeated 
unreasonable behaviour directed to the Applicants, continuing by members of the group as 
identified.

[98] Fourthly, the MUA, Mr Dean Mitchell and Mr Michael Bracken have provided 
undertakings that will decrease any future risk. I will deal with the undertakings later in these 
reasons but, for present purposes, I accept that the undertakings proffered are relevant in 
considering the terms of any orders that I might make.

Risk of bullying at work

[99] DP World sets out in a comprehensive fashion, in its final submissions, an analysis of 
the assessed level of residual risk (or re-occurrence), after control measures have been 
factored in, that is attributable to each of the kinds of conduct experienced by the Applicants 
when they were bullied at work.174 I accept the analysis to the extent that it underpins and 
explains DP World’s rationale for the risk assessments undertaken and the RTW plans it has 
prepared. Beyond that, it is unnecessary for me to make any findings about that analysis..

[100] Based on the analysis and the risk assessments undertaken, DP World submitted that 
the nature and level of the risks as assessed by DP World do not disclose any residual risk 
which would prevent the Applicants from returning to work. DP World submittted that there 
are clear processes to support the Applicants and it rejects the Applicants’ assertion that the 
RTW process was actioned prematurely.175

[101] DP World says that the identified risks do not constitute an imminent risk to the health 
and safety of the Applicants. It submitted that in the current circumstances, it is not contested 
that there are risks that would arise from the Applicants return to work but there is no 
                                               
174 Outline of Closing Submissions of DP World (21 August 2015) at [14]–[18].
175 Ibid at [19].








50

suggestion on the evidence that there is an imminent risk to health and safety which would 
prevent them from doing so.176

[102] The anti-bullying provisions of the Act are not directly concerned with the question 
whether a worker who has been bullied should return to work. The anti-bullying provisions 
are relevantly concerned with identifying whether there is a risk that a worker who has been 
bullied at work by an individual or group of individuals, will continue to be bullied at work by 
the individual or group of individuals.177

[103] I accept that it has not been established that upon a return to work any of the 
Applicants face an imminent risk to their health and safety. In addition, the most recent 
medical evidence provided on behalf of each Applicant is, that from a medical and 
psychological point of view, each Applicant is fit to return to work.178 Consequently, there 
does not appear to be any barrier, save for their genuinely held concern about returning to 
work, to the Applicants’ return to work at WS Terminal.

[104] But the question for me is not whether there is an imminent risk to any of the 
Applicants’ health and safety upon a return to work, rather it is a question whether I am 
satisfied that when the Applicants return to work that there is a risk that they or any of them 
will be bullied at work by the individual or group of individuals who, or which had 
previously, engaged in bullying conduct directed towards the Applicants. The risk must be a 
real risk, but it need not be imminent. For the reasons that follow, I am satisfied in each case 
that upon their return to work at WS Terminal there is a risk that Ms Coombe, Ms Bowker 
and Mr Zwarts will be bullied at work by the group of individuals earlier described.

[105] As I have earlier indicated, not all individuals, or members of the group, who had 
engaged in the bullying were able to be identified, and some remain unknown. Some 
individuals involved in the bullying conduct no longer work for DP World.179 Some have 
been counselled about expected behaviour, and disciplinary action has been taken against 
individuals where allegations have been substantiated. The Applicants have not been at work 
since September 2014 and the apparent catalyst for the conduct directed towards the 
Applicants, Mr Johnston, was removed from the workplace some time ago and failed in his 
bid for reinstatement in the Federal Court.

[106] For reasons already given, relating to the Code, I do not accept that the steps taken by 
DP World have had the effect of eradicating the system of authority and control at WS 
Terminal which stands apart from DP World, as earlier described.180 Moreover, whilst some 
individuals who subscribe to the system and who engaged in bullying conduct were identified 
and dealt with by DP World, other individuals within the group were unknown and remain so. 
Whilst the rollout of DP World’s policy and connected training, together with the regular 
reminders and tool box meetings reinforcing the expected standards of behaviour will no 
doubt have touched some of the unknown individuals, that some employees of DP World 
continue to remain reluctant to be involved in complaints, do not want to be named, or are 
reluctant to state what occurred or to nominate any witnesses, speaks to the continuing 
influence of the Code and system at WS Terminal and the existence of a group that continues 
                                               
176 Ibid at [20]–[21].
177 Section 789FF(1)(b) of the Fair Work Act 2009.
178 Exhibits 39, 40 and 41.
179 Exhibit 25 at [19] and Exhibit 26 at [20].
180 Transcript PN 4874–PN 4876. See also Maritime Union of Australia v DP World Melbourne Ltd [2014] FCA 1321 at 

[156].








51

to subscribe to that system. The other security related measures taken by DP World will likely 
minimise the opportunities for these unknown members of the group to engage in bullying 
conduct.

[107] As victims of Bullying Behaviour that has been enabled by the Code and system and 
as individuals who have railed against it, it would be a curious conclusion to suggest that 
there is no real risk that the Applicants, upon their return to work at WS Terminal, would not 
again be subjected to bullying by some of the group of individuals who continue to subscribe 
to the Code and system. That there is a risk that the Applicants will, on their return to work, 
be bullied at work by the group of individuals who continue to subscribe to this Code and 
system, is not merely a conceptual possibility. It is a real risk that is founded on the evidence 
of the Applicants’ past experiences and recognition that the culture endemic in the system, 
though changing, will take more time and effort to shift, change and ultimately eradicate.

Should orders be made?

[108] Pursuant to s.789FF(1), the Commission has a broad discretion to make any order it 
considers appropriate to prevent the worker from being bullied at work by the individual or 
group of individuals. In considering whether an order is appropriate to prevent future bullying 
it seems to me appropriate that I should take into account my findings about the nature and 
extent of the risk that each Applicant will continue to be bullied at work. An order must have,
as its aim or purpose, the prevention of bullying by the individual or group of individuals vis-
à-vis the worker. 

[109] Having regard to the context and statutory purpose, the word ‘prevent’, being 
undefined in the Act, is to be given its ordinary meaning. That is, to stop or prevent a thing 
from occurring or to hinder its occurrence or to stop, prevent or hinder a person doing a 
thing.181

[110] Section 789FF(2) provides that the Commission must, in considering the terms of an 
order, take into account a number of matters.

[111] DP World has submitted that I should take the following matters into account:

 the outcomes of the various investigations that have been undertaken by DP World 
internally and by external investigators;

 DP World’s Anti-Bullying Policies; and

 the outcomes arising from complaints made under the Anti-Bullying
Policies.182

[112] I accept that these matters are relevant.

[113] The Applicants have at [105] of their Amended Points of Claim set out a range of 
orders they say should be made. Some further orders sought are contained in their 
submissions.

                                               
181 For a full definition of ‘prevent’ see Oxford English and Macquarie Concise Dictionary.
182 Outline of Submissions of DP World (24 July 2015) at [32].








52

[114] Attached to this decision is a table prepared by the Applicants at my request (but 
which includes the position of DP World extracted from a document it provided to the 
Applicants)183 which conveniently sets out the competing positions of the Applicants and DP 
World in relation to the orders that should be made. I have set out an additional column which 
contains my decision on each remedy sought.

[115] I do not intend to traverse each order sought by the Applicants beyond that which I 
have set out in the table, principally because I accept that DP World has taken steps to 
implement or proposes to implement measures that are aimed at addressing the relief sought 
by the Applicants. For example and as set out in DP World’s submissions:184

 The Applicants have been provided with particulars of each concern, the findings of 
DP World about those matters and how it has been addressed;185

 Risk assessments have been provided to the Applicants and consultation with them 
has occurred;186

 The Anti-Bullying Policies have been amended, and substantially addressed each 
issue;187

 DP World has implemented a register of complaints;188

 As it has previously, DP World has specific regard to interim actions;189

 An evidence based approach is taken to complaints on the basis of the balance of 
probabilities;190

 DP World requires managers and supervisors to conduct monitoring and prevent 
victimisation;191

 DP World provides reasons in writing in relation to the outcome of a complaint;192

 Training programs have been implemented, which include examples of appropriate 
and inappropriate conduct;193

 DP World has reviewed CCTV coverage of the site and improved it where 
practicable;194

                                               
183 Emails and attached tables from Solicitors for the Applicants and DP World respectively, sent to my Chambers and each 

dated 1 September 2015.
184 Outline of Submissions of DP World (24 July 2015) at [33].
185 Exhibit 25 at [77]; Exhibit 26 at [7]–[11].
186 Exhibit 26 at [12]–[19].
187 Exhibit 25 at [86]–[128]; Exhibit 36 at [12].
188 Exhibit 25 at [25] and [102].
189 Ibid at [25] and [103].
190 Ibid at [25], [92]–[99] and Annexure GM–13.
191 Ibid at [107]–[111] and Annexure GM–13, Exhibit 36 at [41]–[42].
192 Exhibit 25 at [25] and [112]–[114] and Annexures GM–21, GM–22, GM–26, GM–27, GM–32, GM–33, GM–36, GM–40, 
GM–42, GM–45, GM–47 and GM–49.
193 Exhibit 25 at [59], Exhibit 36 at [35], [37]–[38], [40], [42] and [46]–[49].
194 Exhibit 25 at [77], Exhibit 26 at [5], Exhibit 36 at [52].








53

 Managers are regularly present at toolbox meetings;195

 Independent mediation is considered as an option to resolve complaints where 
appropriate;196and

 DP World has made clear its expectations that employees will co-operate with 
investigations and be honest.197

[116] However, I do not accept that further orders of the Commission are not necessary or 
appropriate in relation to those matters or other matters. In the circumstances, I consider that 
orders to the effect set out below directed to DP World are appropriate to prevent the 
Applicants from being bullied at work by the individual or group of indivisuals. As I have 
noted earlier there appears to be no medical or psychological restriction preventing the 
Applicants return to work. I have also concluded that it has not been established that there is 
an imminent risk to the health or safety of the Applicants in the event of a return to work. The 
orders that I propose to make are therefore directed to preventing the Applicants being bullied 
at work, having regard to the risk that I have identified. The orders that I propose will require 
variable periods of time to implement. Each of the orders can be implemented while the 
Applicants are at work. It is not necessary that DP World has completed any of the tasks 
necessary to give effect to my orders before the Applicants have returned to work. That said, 
DP World should give effect to the orders as quickly as is reasonably practicable.

Proposed orders

1. DP World is to arrange for a Work Safe Victoria inspector to attend a meeting 
separately convened with each Applicant and DP World representatives in order to 
review and finalise:

a. The risk assessment that has been prepared for each Applicant; and

b. The RTW plan for each Applicant.

2. DP World will implement any further control measures or any other steps identified 
and included in the risk assessments or RTW plans following the meeting(s) in [1] 
above.

3. Once the Applicants return to work, DP World is to actively monitor the effectiveness 
of the control measures and other steps identified in the risk assessment and RTW
plans applicable to each Applicant and take reasonably practicable steps, after 
consulting the relevant Applicant, to alter or strengthen any control measure as may be 
necessary having regard to the circumstances of each Applicant while at work.

4. DP World is to inquire into, arrange for and commission, the training of any of its 
management personnel who are, or are likely to be required by DP World, to 
investigate complaints about workplace bullying at WS Terminal. The training is to 
include a focus on forensic investigative techniques including obtaining and managing 

                                               
195Exhibit 25 at [122]–[123], Exhibits 36 at [51].
196 Exhibit 25 at [125]–[126].
197 Ibid at [127]–[128].








54

of information, interviewing complainants, interviewing witnesses, manner of 
questioning and active listening, observing and assessing.

5. In conjunction with the training referred to above, DP World is to commission the 
preparation and deploy for use by managers, of a workplace investigation instruction 
manual.

6. DP World is to review and amend its DP World Employee Handbook 2013 and its 
Workplace Behaviour Policy to ensure that these instruments make clear that:

a. Workplace bullying is an occupational health and safety issue;

b. Investigating workplace bullying complaints is one of the actions taken by DP 
World to comply with its obligations to provide and maintain a safe working 
environment under applicable OHS legislation;

c. Employees have a duty under OHS legislation to co-operate with DP World in 
any action it takes to comply with its OHS obligations, including action to 
investigate allegations of workplace bullying;

d. Employees also have a contractual duty to co-operate with DP World by 
providing honest answers to questions when asked and to follow lawful and 
reasonable directions given by DP World;

e. DP World expects that employees will comply with [c] and [d] above when 
asked to participate in any investigation or inquiry into a workplace bullying 
complaint or to provide information in relation to such an investigation or 
inquiry; and

f. A failure by an employee to comply with [c] or [d] above may lead to 
disciplinary action and in cases of serious failures, to dismissal.

7. DP World will develop and deploy training, training materials and other information 
reasonably necessary to support and reinforce the review and amendment of the DP 
World Employee Handbook 2013 and the Workplace Behaviour Policy.

8. DP World is to review, in consultation with the Applicants, the recommendations 
contained in the Security Risk Assessment prepared by Matryx Consulting Pty Ltd in 
April 2015, and give consideration to whether any further measures recommended by 
Matryx Consulting Pty Ltd, but not implemented by DP World, should be 
implemented.

[117] Turning then to the undertakings proffered by the MUA Respondents. During the 
proceedings the following undertaking was proffered by the MUA:

‘The National Executive of the MUA undertakes to use its reasonable endeavors (sic) to have 
the National Council of the MUA pass a resolution that: 

a. the MUA reiterates its absolute commitment and firm and longstanding policy for the 
prevention and eradication of workplace bullying and harassment in any form; 








55

b. The MUA encourages any officers or members who are witnesses to conduct relied on 
in complaints of alleged bullying and harassment (other than individuals the subject of 
such allegations) to participate in interviews and cooperate with the process of 
investigation; 

c. [W]here necessary the MUA will appoint an external independent investigator to 
investigate any future allegations of bullying and harassment made by a member of 
the MUA to the MUA against MUA officials or MUA employees; and 

d. [S]hould an investigation be conducted under (c) above the investigator will report 
his/her findings and recommendations to the National Executive and the complainant 
on a confidential basis.’198

[118] The undertaking is a welcome development, however I will only accept the 
undertaking in lieu of making orders on the following conditions:

1. Confirmation that paragraph [b] of the proposed resolutions applies to 
investigations conducted by an employer or person appointed by the employer;

2. That the resolution foreshadowed is passed by the National Council of the MUA
before 28 February 2016;

3. The MUA further undertakes to prepare a newsletter and distribute that newsletter 
amongst MUA members at WS Terminal, within seven days of the passing of the 
resolution by the National Council of the MUA setting out in full the resolution 
with particular emphasis on paragraphs [a] and [b] thereof;

4. MUA officials are instructed that when visiting WS Terminal, for a period of 12 
months after the National Council of the MUA passes the resolution, they are to 
distribute copies of the newsletter to any member with whom the official has 
contact and to reinforce the importance of its content to that or those members.

[119] The MUA is to advise my chambers within seven days of the date of this decision 
whether these conditions are accepted. In the event that the conditions are accepted, I propose 
deferring any further consideration of any orders that might be directed to the MUA until I 
receive confirmation that the resolution foreshadowed has been passed by the National 
Council of the MUA.

[120] Mr Mitchell proffered the following undertaking:

‘Dean Mitchell undertakes that he will accept and agree to any alteration made to his roster by 
DP World for the purpose of ensuring that he is not rostered to work a shift with Annette 
Coombe, Sharon Bowker of (sic) Stephen Zwarts on condition that there is no reduction of his 
ordinary hours of work or any overtime as a result of such an alteration.’199

                                               
198 MUA Respondents’ Outline of Final Submissions (21 August 2015) at [4].
199 Ibid, at [5].








56

[121] I note the undertaking and I now seek confirmation from DP World whether any such 
alteration on the conditions specified is possible. If it is, then I recommend that DP World 
implement the alteration.

[122] Mr Bracken proffered the following undertaking: 

‘Michael Bracken undertakes that he will accept and agree to any alteration made to his roster 
by DP World for the purpose of ensuring that he is not rostered to work a shift with Annette 
Coombe, Sharon Bowker of (sic) Stephen Zwarts on condition that there is no reduction of his 
ordinary hours of work or any overtime as a result of such an alteration.’200

[123] As with Mr Mitchell, I note Mr Bracken’s undertaking and I seek confirmation from 
DP World whether any such alteration on the conditions specified is possible. If it is, then I 
recommend that DP World implement the alteration.

[124] During the proceedings I enquired of Counsel for the MUA Respondents whether the 
MUA would send an official to WS Terminal to meet with MUA members in order to 
facilitate a smooth transition of the Applicants RTW.201 In response the MUA has provided 
the following undertaking:

‘The MUA undertakes that Joe Italia, Victorian Branch Secretary will attend the West Swanson 
site and address MUA members employed by DP World at the site to reaffirm the MUA’s 
commitment to the prevention of bullying and harassment and its opposition to such conduct; 
and to encourage its members to treat the applicants respectfully should they return to work.’202

[125] I welcome and accept this undertaking.

[126] I also indicated to Counsel for the MUA Respondents that the undertakings proffered 
by Mr Mitchell and Mr Bracken might carry more weight if they said something in relation to
their intended future conduct and demeanour towards the Applicants.203 In response,
Mr Mitchell and Mr Bracken each gives the following undertaking (without any admission as
to liability):

‘He undertakes that he will not approach Annette Coombe, Sharon Bowker or Stephen Zwarts 
for 12 months from the date of this undertaking unless he is required to do so to perform the 
duties and functions of his role at DP World.’204

[127] I am content with that undertaking, but trust that when contact is necessary in the 
performance of their respective duties and functions, the contact is respectful.

Conclusion

[128] For the reasons given I am satisfied that:

                                               
200 Ibid, at [6].
201 Transcript PN 5198.
202 Email from MUA’s representative containing undertaking sent to my Chambers on 26 August 2015.
203 Transcript PN 5392.
204 Email from MUA’s representative containing undertaking sent to my Chambers on 26 August 2015.








57

a) Ms Bowker was, during the period between mid-2013 and July 2015, bullied at 
work in that she was, whilst at work in a constitutionally-covered business 
conducted by DP World, subjected repeatedly to unreasonable behaviour engaged 
in by an individual or a group of individuals and that behaviour created a risk to her 
health and safety;

b) Ms Coombe was, during the period between mid-2013 and July 2015, bullied at 
work in that she was, whilst at work in a constitutionally-covered business 
conducted by DP World, subjected repeatedly to unreasonable behaviour engaged 
in by an individual or a group of individuals and that behaviour created a risk to her 
health and safety; and

c) Mr Zwarts was, during the period between August 2013 and July 2015, bullied at 
work in that he was, whilst at work in a constitutionally-covered business 
conducted by DP World, subjected repeatedly to unreasonable behaviour engaged 
in by an individual or a group of individuals and that behaviour created a risk to his 
health and safety.

[129] For the reasons given, I am satisfied that when the Applicants return to work that there 
is a risk that each of them will be bullied at work by some members of the group of 
individuals as earlier identified, which had previously engaged in Bullying Behaviour directed 
towards the Applicants. The risk is a real risk but I am not satisfied that there is an imminent
risk to the Applicants’ health or safety if they return to work.

[130] I consider that orders to the effect set out earlier and directed to DP World are 
appropriate to prevent the Applicants from being bullied at work by the members of the group
of individuals. Each of the orders can be implemented while the Applicants are at work. It is 
not essential that DP World completes any of the tasks necessary to give effect to my orders 
before the Applicants have returned to work.

[131] I note that DP World indicated that if I were inclined to make orders it may wish to be 
heard. DP World should notify my chambers within seven days of the date of this decision 
whether, in light of the orders I propose to make, it wishes to be heard. DP World is also to 
advise my chambers within seven days whether it is possible to implement the undertaking 
proposed by Mr Bracken and Mr Mitchell.

[132] The MUA is to advise my chambers within seven days of the date of this decision 
whether the conditions I have proposed relating to its undertakings are accepted. In the event 
that the conditions are accepted, I propose deferring any further consideration of any orders 
that might be directed to the MUA until I receive confirmation that the resolution 
foreshadowed has been passed by the National Council of the MUA.

[133] Leave is granted to any party to seek a report back or progress hearing within 12 
months of this decision on giving the other parties written notice.

DEPUTY PRESIDENT


WORK COMMISSION THE SEAL OF




 



58

Appearances:

M. Rinaldi for the Applicants.

H. Skene for DP World Melbourne Limited.

Y Bakri for The Maritime Union of Australia and other MUA Respondents.

Hearing details:

2015.
Melbourne:
August 3, 4, 5, 6 and 24.

Final written submissions:

Applicants, 14 August 2015.
MUA, 21 August 2015.
DP World, 21 August 2015.

Printed by authority of the Commonwealth Government Printer

Price code J, PR573226 








59

COMPARATIVE POSITION IN RELATION TO THE RELIEF SOUGHT BY THE 
APPLICANT

ITEM Relief sought DP World position Applicants’ position Decision
APOC 104A(a) 
(relief sought
as at 27
January 2015)

That DP

World 

provide the 

applicants

with written

particulars 

of:

(a) each 

complaint

DP World

considers
has been
identified
to it under

the DP 

World

Bullying 

Policy by or

on behalf of

the 

applicants

and when;

(b) in

respect of 

each such

issue, what

steps have 

been taken

by DP World

to deal with 

the issue; and

(c) in respect

of each such

issue, if those

steps include 

findings of

fact in a 

workplace 

investigation,

what are the

findings of 

fact and what 

management

action has been 

Summary of the
position:

This has occurred. The

Applicants have

received a number of

updates on their

complaints from DP

World at various points

in time from 2013 to

date. In June 2015, Mr 

McCluskey arranged for

a summary document to

be provided to each of

the Applicants setting

out all the issues and

concerns they had

raised and what the 

outcome of those

matters was.

While DP World

understands that in a 

number of instances the 

Applicants are not

satisfied with the 

outcome or the level of

detail provided, these

documents do set out

the outcome of each

matter, whether the

allegation was 

substantiated or not

substantiated and what

management action has 

been taken to address

the issue, save for those

matters which do not

directly involve the

Applicants.

Evidence references:

Statement of 

McCluskey at 

paragraphs 30-33 and

80-84. See also the

This has been partially 

implemented, 

predominantly by the 

provision of GM56-

GM58 and other material

in McCluskey statement

of May 2015.

Particulars of findings of 

fact, in particular where a 

complaint has been 

accepted as

‘substantiated’, are not

adequately provided.

Particulars of dates on 

which each complaint 

dealt with in GM56-

GM58 were received and

dealt with are not

adequately provided (that

is, not provided

consistently with 

recording of other 

complaints in Register of 

Complaints (Exhibit 32))

Where a complaint has not
been investigated or 
resolved, particulars of 
management steps taken to
deal with the complaint have
not been adequately 
provided.

I accept the 

submission of DP 

World, in that this 

claim has been 

met. To the extent 

that there are 

matters 

outstanding, I 

would expect that 

the outstanding 

matters would be 

finalised 

expeditiously but I 

do not propose 

making any order.








60

ITEM Relief sought DP World position Applicants’ position Decision
taken as a result. specific particulars of 

complaints set out in

paragraphs 33-54 and

the annexures referred 

to therein.

Further statement of 
McCluskey at paragraphs
7-11 and annexures GM-
56, GM-57 and GM-58.

APOC 104B 

(relief sought

as at 27

January 2015)

That DP

World 

provide each 

applicant

with 

particulars of

a proposal

under which

he or she can

return to

work without 

unreasonable

risk,

including the

risk or risks

DP World has 

identified, in 

sufficient

detail to 

permit

consultation 

with each

applicant as

to the

suitability of 

the proposal

to manage

such risks.

Summary of the
position:

This has occurred. DP

World has provided to

each of the Applicants 

a return to work

proposal which
includes a detailed risk 
assessment
which sets out the

identified risks and

proposed control

measures. Extensive

consultation has 

occurred with the

Applicants and 

revised return to work

plans and risk 

assessments have

been provided.

Evidence references:

This evidence is 

summarised in 

paragraphs 9.1, 9.2, 9.3

and 9.4 of the Outline

of Closing Submissions 

of DP World. See also:

� Further
statement of
McCluskey at
paragraphs
12-19 and the
annexures 
referred to
therein.

� Statement of
Holland at 

This has been partially 

implemented.

The RTW and Risk 

Assessment documents 

were provided in/from late 

May 2015. The adequacy 

of those documents is 

contested. In particular, 

the reasons and evidence 

for quantification of risks 

have not been adequately 

established.

(See also Applicants’ 
Outline of Final 
Submissions [24]-[28] and 
references therein)

I agree with the 

submission of 

DP World. I do 

not propose to 

make the order 

sought, however, 

I propose to 

make a related 

order.








61

ITEM Relief sought DP World position Applicants’ position Decision
paragraphs 11-21.

APOC

105(a) (relief 

sought as at 27

January 2015)

That DP

World amend

its complaint

handling 

processes and 

policy to

provide that a

complaint will 

be

acknowledged

in writing

within 24

hours of

receipt

Summary of the
position:

DP World’s Policy

requires a prompt

acknowledgement of 

a complaint. This is 

typically done 

within 24 hours-48

hours. However, it

is not practical to

require a written

acknowledgement 

within 24 hours in

every case, for 

example, over a

weekend (or other 

non-working day) or

in the case of system

delays. If a

complaint is not

received in writing

this may also impact

the response time.

Evidence references:

Statement of 

McCluskey at 

paragraph 25(c),

86 and 87.

See also the Workplace
Behaviour Policy in
annexure GM-13 at 
paragraph 13.1: “After
submitting a complaint,
you will be advised 
promptly of who will be
progressing your
complaint, and the next
steps in the complaint 
process.”

This has not been 

implemented.

What amounts to prompt 

acknowledgement in the 

new DP World policy is 

not conditioned on any 

objectively reasonable 

factor. Employees work

24/7 rotating shifts and 

promptness requires 

consideration of when

the employee may next

work.

Further, DP World has 
contended that its handling
of complaints is “prompt”
despite unexplained delays
of many months in finalising 
those complaints. An 
objective standard remains
necessary.

I do not 

think the 

position of 

the 

Applicant’s 

has any 

practical 

utility and is 

unnecessaril

y restrictive. 

I propose to 

make 

related 

orders in 

relation to 

DP World’s 

policies.

APOC

105(b) (relief 

sought as at 27

January 2015)

That DP

World amend

its complaint

handling 

processes and 

policy to

Summary of the
position:

DP World’s Policy

requires a complainant

to be advised of the 

next steps in the

This has not been 

implemented.

Where, as here, DP World 

has had a significant 

history of failing to

provide updates (even

I do not 

think the 

position of 

the 

Applicant’

s has any 








62

ITEM Relief sought DP World position Applicants’ position Decision
provide that a

complainant 

will be

notified in 

writing of an 

anticipated 

timeframe in 

dealing with a

complaint

within 48 

hours,

including of 

any change

complaint progress.

This is typically done

in writing or by verbal

update, with steps

being taken during the 

process to advise

employees of any

interim actions as

appropriate. However,

it is not practical or 

desirable to set a

timeframe to 

completion at the start

of a complaint process

or mandate when

updates must be given. 

There are also

circumstances in which

it may not be

appropriate to provide

updates to employees

in respect of matters

that do not directly

concern them.

Evidence references:

Statement of 

McCluskey at 

paragraphs 25(c), 88,

89 and 90.

See also the Workplace
Behaviour Policy in
annexure GM-13 at 
paragraph 13.1: “After
submitting a complaint,
you will be advised 
promptly of who will be
progressing your
complaint, and the next
steps in the complaint
process.”

when expressly requested)

on its management of 

complaints, and where 

there is desirability in 

providing a level of 

certainty (as evidenced in 

Statement of Jodie 

Thomas) proper 

management of 

expectations of 

complainants remains 

important, but is not been 

provided by DP World 

current arrangements.

(See also Applicants’ 
Outline of Final 
Submissions [29]-[30], [32])

practical 

utility and 

is 

unnecessar

ily 

restrictive. 

I propose 

to make 

related 

orders in 

relation to 

DP 

World’s 

policies.

APOC

105(c)(A) 

(relief

sought as at

9 August

That DP

World amend

its complaint

handling 

processes and 

Summary of the
position:

DP World’s Policy

requires complaints to

be dealt with in 

This has not been 

implemented.

In the face of clear and 

uncontested evidence of 

I do not 

accept the 

Applicants’ 

proposed 

order as 








63

ITEM Relief sought DP World position Applicants’ position Decision
2014) policy to

provide that

DP World

will not refuse

to deal with or

cease dealing

with a 

complaint if

the

complainant

cannot 

identify a

direct or 

corroborating 

witness

accordance with the

procedure set out in the

policy. It is not the

case that DP World

refuses to deal with a

complaint if there are

no direct or 

corroborating

witnesses. This is not

what occurs.

This can be seen on

the evidence filed in

this case. With

respect to the

Applicants, there are 

complaints which

have been 

substantiated despite a 

lack of direct or

corroborating

evidence.

Evidence references:

Statement of 

McCluskey at 

paragraphs 25(e), 91,

92 and 93.

See also section 13 of the 
Workplace Behaviour
Policy in annexure GM-
13, which sets out how
complaints about 
unacceptable workplace
behaviour will be dealt 
with by DP World.

the continued existence of 

a ‘code of silence’ the 

inclusion of a condition to 

ensure that its impact is 

reduced at the WST 

workplace is important.

As DP World says it (at 
least currently) undertakes
investigations consistently
with this, the 
implementation of this 
condition is not 
burdensome.

(See also Applicants’ 
Outline of Final 
Submissions [20] and 
references therein)

practical. I 

propose to 

make a 

related 

order.

APOC
105(c)(B) 
(relief sought
as at 9 August
2014)

That DP World 
amend its 
complaint
handling 
processes and 
policy to provide 
that DP World
will not refuse to
deal with or
cease dealing
with a complaint
if witnesses say
they cannot
recall events

Summary of the
position:

DP World’s Policy

requires complaints to

be dealt with in 

accordance with the

procedure set out in the

policy. It is not the

case that DP World

refuses to deal with a

complaint if the

As for position relating to 
POC 105(c)(A)

I do not accept the 
Applicants’ 
proposed order as 
practical. I propose 
to make a related 
order.








64

ITEM Relief sought DP World position Applicants’ position Decision
witnesses say they

cannot recall the

events. This is not

what occurs.

Where a witness says

that they cannot recall,

DP World may consider

whether further steps

are required to test what

has been said or assist

the witness to recall the 

issues. How far the

investigator chooses to

take it will depend on

all the circumstances

involved.

Evidence references:

Statement of 

McCluskey at 

paragraphs 25(e), 91,

92 and 93.

See also section 13 of the 
Workplace Behaviour
Policy in annexure GM-
13, which sets out how
complaints about 
unacceptable workplace
behaviour will be dealt 
with by DP World.

APOC

105(c)(C) 

(relief

sought as at 

9 August 

2014)

That DP

World amend

its complaint

handling 

processes and 

policy to

provide that

DP World will 

not refuse to

deal with or

cease dealing

with a 

complaint

without 

exhausting all 

avenues of 

Summary of the
position:

DP World’s Policy

requires complaints to

be dealt with in 

accordance with the

procedure set out in the

policy, which requires

an evidence based

approach to be taken.

DP World takes

reasonable steps to

identify and review the 

available evidence

which it considers to be

relevant to the issues

Not implemented.

As for position relating to
POC 105(c)(A).

Further, this relief is 

consistent with the 

ordinary requirement

that an investigator must 

obtain all reasonably 

available information 

before making a 

determination. What 

amounts to reasonably 

available information

will depend on the 

circumstances, and may 

I do not accept the 
Applicants’ proposed 
order as practical. I 
propose to make a 
related order.








65

ITEM Relief sought DP World position Applicants’ position Decision
obtaining

relevant 

evidence,

including 

CCTV, mobile 

phone records, 

email, social 

medial, access

card swipe

records, 

radio/comms

logs, all

potential 

witnesses and 

recording of

phone calls

raised, which may

include witnesses,

recordings, CCTV,

work logs, electronic

records and other 

records. However,

these inquiries will

depend on what issues

are involved and the

prospect that such

evidence will be

relevant to the outcome.

DP World also 

considers any evidence

that is brought forward

by the parties to a 

complaint.

It would be unworkable

to require DP World to

exhaust all avenues of 

obtaining relevant

evidence, before 

finalising any

investigation. This 

would be likely to result

in delays in resolving

complaints and

expending time and

resources to obtain

evidence which may not 

impact the outcome.

Evidence references:

Statement of 

McCluskey at 

paragraphs 94-

99.

See also section 13 of

the Workplace

Behaviour Policy in 

annexure GM-13,

which sets out how

complaints about 

unacceptable

workplace behaviour 

will be dealt with by

DP World. Paragraph

include any or all of the 

examples cited. DP 

World appears to accept 

the proposition that that 

condition is an 

appropriate requirement

but has failed to include

it in the current policy.

It would be appropriate

to include it given that

there have been clear

failures (for example, Mr 

McCluskey in

investigating the 

complaint against Mr 

Brooker interviewed

only Mr Brooker who

denied the conduct – Mr

McCluskey did not seek

to identify or interview

the person who could

have given contrary

evidence, Mr Groat).

The relevant policy 

requires that DP World 

must give the complainant 

an opportunity to put 

forward or identify 

evidence on which he or 

she relies. The evidence 

demonstrates has not 

occurred in relation to

most of the Applicants’ 

complaints. This relief 

provides an additional 

mechanism to support the 

existing policy
requirement that DP
World is to give the 

complainant an 

opportunity to put forward 

or identify evidence on 

which he or she relies

(See also Applicants’
Outline of Final 
Submissions [30] and the 








66

ITEM Relief sought DP World position Applicants’ position Decision
13.2 identifies the 

following evidence

based requirements:

� “A decision-
maker must be 
impartial and
must made a 
decision based
on a balanced 
and considered 
assessment of
the information 
and evidence 
before him or
her, without 
favouring one
party over 
another.

� “Decisions must
be based upon evidence, 
judged on the basis of a
balance of probability 
rather than on 
speculation or suspicion.
A decision-maker should
be able to clearly point
to the evidence on which
the inference or
determination is based.”

references therein)

POC

105(c)(D) 

(relief 

sought as at 

9 August 

2014)

That DP

World amend

its complaint

handling 

processes and 

policy to

provide that

DP World

will not refuse

to deal with or

cease dealing

with a 

complaint

without 

considering 

whether the

facts alleged

in the

complaint are

Summary of position:

DP World does

consider evidence of

patterns of behaviour

and similar fact

scenarios where this is

relevant to a complaint.

Substantiated and

unsubstantiated 

allegations which are

relevant will be taken

into account. However, 

evidence of other

allegations may be of

limited use in

determining if a 

particular complaint is 

substantiated.

Evidence reference:

This has not been 

implemented.

DP World’s evidence 

discloses that it has not 

considered whether any 

of the conduct directed 

against the Applicants is 

motivated by the same or

a similar attitude, which

is a particularly relevant 

consideration in relation

to the Applicants. This

relief would require DP

World to consider

whether the same or a

similar motivation was a

reason for conduct, and

require it to identify the

root cause of conduct at 

I do not 

accept the 

Applicants’ 

proposed 

order as 

practical. I 

propose to 

make a 

related 

order.








67

ITEM Relief sought DP World position Applicants’ position Decision
more likely to

have occurred

due to 

similarity

with other 

allegations

Statement of McCluskey
at paragraphs 100 and
101.

an early point.

(Applicants’ Outline of Final
submissions [20]- [23])

POC 105(d) 

(relief sought

as at 9 August

2014)

That DP

World amend

its complaint

handling 

processes and 

policy to

provide that

DP World 

maintain a

register of all

workplace 

complaints

and

issues

investigated

Summary of position:

DP World does keep

a register of 

complaints under the

Policy.

Evidence reference:

Statement of 

McCluskey at 

paragraphs

25(i) and 102.

See also Exhibit 32,
which is a copy of the
complaint register as at
14 July 2015.

Implemented in or 

around mid-2015.

Given the 

Applicants’ 

concession, 

orders are 

not 

necessary.

POC 105(e) 

(relief sought

as at 9 August

2014)

That DP

World amend

its complaint

handling 

processes and 

policy to

provide that

DP World 

consider and 

advise a 

complainant

of interim

action to be 

taken to

preserve the

interests of all 

parties,

including 

workplace 

separation

Summary of position:

This is part of DP

World’s complaint

handling process. 

Where it is 

appropriate to adopt 

interim arrangements

to address the work

relationship between

the employees

involved in a 

complaint, those

employees who are

affected will be

advised of the

changes.

Evidence reference:

Statement of McCluskey
at paragraphs 25(g) and
103.

This has not been 

implemented.

No policy requirement

has been introduced and

no example of a 

workplace separation has

been identified other than 

removal of the

Applicants from the

workplace (September

2014), which has been

subsequently reversed

without explanation (in

June/July

2015).

I accept 

DP 

World’s 

position.

POC 105(f) 

(relief sought

as at 9

That DP

World amend

its complaint

Summary of position:

The DP World Policy

Implemented Given the Applicants’ 
concession, no orders 
are necessary.








68

ITEM Relief sought DP World position Applicants’ position Decision
August 2014) handling 

processes and 

policy to

provide that

DP World

apply a

“balance of 

probabilities” 

standard to

factual 

findings in 

determining

any 

complaint,

and will not

consider 

whether any

later 

challenge will

result in any

decision 

being difficult

or expensive

to defend

requires a balance of 

probabilities standard to 

be applied to all

complaints (including

any allegation that a 

complaint has been

made vexatiously).

Evidence reference:

See the Workplace

Behaviour Policy,

annexure GM-13, at 

paragraph 13.2:

“Decisions must be

based upon evidence,

judged on the basis of

a balance of 

probability rather than

on speculation or

suspicion. A decision-

maker should be able

to clearly point to the

evidence on which the

inference or 

determination is 

based.”

See also the statement of 
McCluskey at paragraph
104, 105 and 106.

POC 105(g) 

(relief sought

as at 9 August

2014)

That DP

World amend

its complaint

handling 

processes and 

policy to

provide that

DP World

monitor the

actions of

others

towards a 

complainant

in order to

ensure no 

victimisation

occurs,

including 

Summary of position:

The DP World Policy

specifies that 

victimisation is 

unacceptable conduct

which is prohibited and

that its employees are

required not to engage

in such conduct.

Further, there are

specific requirements

under the policy on

managers and 

supervisors to monitor

their employees and

take reasonable action

to prevent unacceptable 

conducts. Specific

Implemented Given the Applicants’ 
concession, no orders 
are necessary.








69

ITEM Relief sought DP World position Applicants’ position Decision
access to

overtime, and

job

allocations or

other

positions

reminders have also

been provided to all

managers and

supervisors at WST.

Further, DP World has
processes in place to
ensure that rostering and
allocation of overtime
and extensions is in
accordance with the
needs of the business and
that these decisions are
recorded.

The return to work plans
for the Applicants include
briefings to be provided to
all levels of management
on DP World’s 
expectations regarding
appropriate workplace
behaviour, the Policy and
the return to work of the 
Applicants, as well as
regular (initially daily)
reviews to be conducted.

Evidence reference:

The Workplace

Behaviour Policy, 

annexure GM-13 at

the following 

paragraphs:

� Paragraph 6.1: 
“Victimisation 
is unlawful. 
Victimisation
occurs when a
person is
subjected to, or 
threatened
with, any form 
of detriment for
raising a 
complaint, 
providing 
information 
about a 
complaint, or
otherwise being








70

ITEM Relief sought DP World position Applicants’ position Decision
involved in the 
resolution of a
complaint. 
Victimisation …
will not be 
tolerated by DP
World”;

� Paragraph 10.1:
All employees 
of DP World 
Australia are
required to, 
amongst other
matters, “ensure
they do not 
engage in any 
unacceptable 
behaviour” and
“report any
unlawful or 
unacceptable 
conduct they 
see”;

� Paragraph 11.1: 
Managers and
Supervisors are
expected to,
amongst other
matters, 
“monitor the 
health and 
safety of all 
employees who
report to them”
and “take 
reasonable 
action to 
prevent 
unacceptable 
workplace
behaviour”; and

�
Paragrap

h 13.3: “No one 
will be 
victimised or 
disadvantaged
as a result
of making a
complaint, 
planning to
make a 








71

ITEM Relief sought DP World position Applicants’ position Decision
complaint or
acting as a 
witness to a
complaint.”

Statement of 

McCluskey at 

paragraph 107, 108,

109, 110 and 111.

Statement of Jena at 
paragraph 13.

Return to work plans

in the further 

statement of 

McCluskey, annexures

GM-63, GM-67 and

GM-69.

POC 105(h) 

(relief sought

as at 9 August 
2014)

That DP World 
amend its 
complaint
handling 
processes and 
policy to provide 
that DP World
set out its
decision in any
complaint in a 
statement of 
reasons

Summary of position:

The DP World Policy

specifies that 

complaints will be

responded to in writing

and that the decision

maker should be able to

clearly point to the

evidence on which the 

determination is based.

In practice, this is often

done by way of written

letter which identifies

the outcome and the

reasons for that 

outcome.

It would not be

practical or desirable

for a detailed or

legalistic statement of 

reasons to be provided,

given that this level of 

detail is not required in

every case and the

prospect that significant 

resources may need to

be involved in this

exercise.

This has not been 

implemented.

DP World asserts that 

each decision maker has 

a course of reasoning to 

support a decision.

A short statement 

identifying that course of 

reasoning provides a 

complainant with a basis 

to appreciate and accept 

the reasoning and result, 

or to identify where the 

reasoning has failed. No 

suggestion has been made

that a statement of 

reasons must be detailed 

or legalistic.

The outcome letters 

received by the Applicants 

lack a statement of this 

kind which, had it been 

provided in a timely way, 

may have led to earlier 

resolution.

I do not 

propose to 

make the 

order. DP 

World 

should 

explain the 

outcome of 

any 

investigatio

n to a 

complainant 

and a 

respondent, 

but I agree 

with DP 

World that 

the order 

sought is 

not a 

practical nor 

desirable 

component 

of a 

workplace 

investigatio

n process.








72

ITEM Relief sought DP World position Applicants’ position Decision

Evidence reference:

The Workplace

Behaviour Policy, 

annexure GM-13, set

out the following

requirements:
� At paragraph 
13.2: “Decisions must
be based upon

evidence, judged
on the basis of a

balance of 
probability rather
than on 

speculation or 
suspicion. A decision-
maker should be
able to clearly 
point to the evidence 
on which the 
inference or

determination is 
based.”

� At paragraph
13.3: 
“Complaints 
about 
unacceptable 
workplace 
behaviour will
be responded to
in writing.”

Statement of 

McCluskey at 

paragraphs 25(h),

112, 113 and 114.

See also the following

examples of written

responses provided to

the applicants in 2015

which are in evidence:

GM-21 (also at AFC-

46), GM-22 (also at
SZH-34), GM-

27, GM-33 (also at SZH-
35), GM-

36 (also at SLB-40),
GM-40, GM-

Further, where, as here, 

there is a conflict in DP 

World’s own

investigation results in 

some cases, a statement

would have assisted in

identifying the issue at an

early stage to permit DP

world to deal with the

discrepancy.

(Applicants’ Outline of Final
Submissions [30] and
references therein)








73

ITEM Relief sought DP World position Applicants’ position Decision

42 (also at SLB-47),

GM-45 (also at SLB-

43), GM-47 (also at

AFC-

47), GM-49, GM-84,
AFC-45, AFC-

48 and SLB-46.

POC 105(i) 

(relief sought

as at 9

August

2014)

That DP

World amend

its complaint

handling 

processes and 

policy to

provide that

DP World 

require its 

employees at

the Site to

undertake 

anti-bullying 

training on no

less than an

annual basis,

and the 

training will

include a

direction to all

employees that 

any use of 

terms such as

“lagger”,

“scab” or the

like will result 

in disciplinary

action

Summary of position:

The DP World Policy

specifies that abusive,

insulting and offensive 

language is 

unacceptable 

behaviour. It does not

specify particular

words. However where 

offensive language is

used in a derogatory

manner or to bully or 

harass an employee,

this conduct is clearly

in breach of the Policy.

It would be unhelpful

to seek to develop a 

list of specific words, 

given the potential

resources involved in

this exercise (and 

keeping it up to date).

Further, having a list 

of prescribed language

may be unduly 

restrictive: it may

result in employees

misunderstanding their 

obligations and

(incorrectly) inferring

that they are able to

use any language

which did not appear 

in the list.

The Compass training

has also included

specific prohibitions

Implemented. Given the Applicants’ 
concession, no orders 
are necessary.








74

ITEM Relief sought DP World position Applicants’ position Decision
on use of offensive

language and set out

the standards of

expected behaviour

for the DP World 

workforce.

Training on workplace

behaviour has been

conducted from 2013

to

2015, as well as

reminders from 

management,

workplace 

presentations, bulletins,

toolbox meetings and

announcements with 

the MUA. DP World is 

currently reviewing

how often the training 

should be refreshed.

Evidence reference:

The Workplace

Behaviour Policy, 

annexure GM-13, set

out the following

requirements:

� In paragraph 1 
(which deals with 
Workplace 
Bullying), it 

states that:

“‘Unreasonable 
behaviour’
means
behaviour that
a reasonable
person, having 
regard to all the 
circumstances, 
would expect to
victimise, 
humiliate,
undermine or 
threaten an
employee or a 
group of








75

ITEM Relief sought DP World position Applicants’ position Decision
employees” and 
“For examples
of the type of
behaviours 
which may 
constitute 
bullying please 
see Appendix
1.”

� In paragraph 3
(which deals
with
Harassment), it 
states that
“there are
many types of
verbal, non-
verbal and
physical 
behaviours that
could amount to 
harassment”
and “a single 
incident can
amount to 
unlawful
harassment and 
the 
unacceptable 
behaviour could
be verbal, 
written,
physical, 
gestures, the
display of
offensive 
material and
objects, or 
contact via
social media… 
See Appendix 3
for examples of
harassment.”

� Appendix 1
specifies that 
direct bullying 
may include 
“abusive,
insulting or 
offensive 
language” and 
“behaviour or
language that








76

ITEM Relief sought DP World position Applicants’ position Decision
frightens, 
humiliates, 
belittles or
degrades”.

� Appendix 3
specifies that 
examples of
harassment may 
include “use of 
offensive or
obscene 
language.”

Statement of

McCluskey at 

paragraphs 59

and 115-120.

Statement of Jena at 
paragraphs 34-38, 40-41,
44 and 49.

Statement of Holland at
paragraph9(c).

POC 105(j) 

(relief sought

as at 9

August

2014)

That DP

World amend

its complaint

handling

processes and 

policy to

provide that

DP World 

review and

expand CCTV

coverage at 

the Site to the 

extent

possible to 

prevent

anonymous

graffiti and

will utilise

that facility in 

investigating 

complaints

Summary of position:

A number of additional

security cameras have

been introduced at 

WST following the

Matryx security review

in May 2015. Where 

relevant, that footage

may be used in

investigating

complaints.

Evidence reference:

Statement of 

McCluskey at 

paragraphs 25(d),

77(b) and 121.

Further statement of 

McCluskey at 

paragraph 5.

Statement of Jena at 

Implemented. Given the Applicants’ 
concession, no orders 
are necessary.








77

ITEM Relief sought DP World position Applicants’ position Decision
paragraph 52.

POC 105(k) 

(relief sought

as at 9 August

2014)

That DP

World amend

its complaint

handling 

processes and 

policy to

provide that

DP World 

Managers

attend toolbox

meetings and

report any

poor conduct

to DP World

who will deal

with the

report as a 

complaint

Summary of position:

The DP World Policy

requires managers to

identify and address 

unacceptable workplace

conduct, regardless of

whether a complaint 

has been made. With

respect to toolbox

meetings, although 

management

representatives often do

attend these meetings,

this is subject to the

needs of the business.

It would not be

practical to require this

at every meeting.

Further, under the

Policy, it is the 

responsibility of all

DP World 

employees to

ensure that they 

identify and

address any 

unacceptable

behaviour which 

occurs.

Evidence reference:

The Workplace

Behaviour Policy, 

annexure GM-13, at:

� Paragraph 10.1:
“All employees
are required to
…. Report any
unlawful or 
unacceptable 
conduct they 
see occurring to
others in 
accordance 
with the 

Implemented Given the Applicants’ 
concession, no orders 
are necessary.








78

ITEM Relief sought DP World position Applicants’ position Decision
complaint 
procedure in
this Policy”;
and

� Paragraph 11.1:
Managers and
Supervisors are 
expected to
“take 
reasonable 
action to 
prevent 
unacceptable 
workplace
behaviour and 
respond 
promptly if they 
observe 
unacceptable 
behaviour
irrespective of 
whether a
complaint has 
been made”.

Statement of 

McCluskey at 

paragraphs

122-124.

Statement of Jena at 
paragraph 51.

POC 105(l) 

(relief sought

as at 9

August

2014)

That DP

World amend

its complaint

handling 

processes and 

policy to

provide that

upon

receiving a

complaint, DP 

World

consider 

whether 

engagement

of an 

independent 

Summary of the
position:

DP World already

considers this issue on a

case-by-case basis as 

appropriate, including

both internal mediation

(which is often 

“independent” from the

issues and parties

directly concerned in

the dispute) and

external mediation. 

Where DP World

considers that external

mediation is 

Not implemented. 

Consideration of this is

not a required step in

the relevant policy. In 

circumstances where 

findings of external 

investigators

favourable to 

Applicants have been 

rejected without 

explanation

(Gunzburg), and

external investigators 

have dealt with 

I do not propose 

to make such an 

order. The nature 

of any inquiry or 

investigation and 

the appointment 

of a mediator 

should be 

determined as the 

circumstances 

warrant. The 

proposed order 

builds in 

unnecessary 








79

ITEM Relief sought DP World position Applicants’ position Decision
mediator

would assist

to resolve the

complaint,

and if so, will

engage an

independent 

mediator to 

conduct a 

mediation on

the next

working day 

on which

involved 

employees are 

available

appropriate, it would

not be appropriate to 

mandate a timeframe of 

one working day given

the practicalities 

involved in arranging

this.

Evidence reference:

Statement of 

McCluskey at 

paragraphs

125-126.

Statement of Jena at 
paragraph 19.

complaints of other 

employees but not been 

referred complaints by

the Applicants

(Halliday) (see Exhibit

32), the benefits of 

external 

investigation/mediation 

are not demonstrated to 

have been applied or 

considered, or

considered in a timely

way.

Subject to practicalities, 

DP World appears to 

accept the proposition 

that that condition is an 

appropriate requirement
but has failed to include it
in the current policy.

rigidity. I accept 

that DP World’s 

response is 

appropriate.

POC 105(m) 

(relief sought

as at 9 August

2014)

That DP

World amend

its complaint

handling 

processes and 

policy to

provide that

DP World

must advise

witnesses 

during

workplace 

investigations

that giving

misleading 

answers,

including “I

don’t recall”

when this is

not correct, 

will be dealt 

with as a

disciplinary

issue

Summary of the
position:

The DP World Policy

requires employees to

comply with lawful 

and reasonable

directions in relation

to any investigation. 

Where DP World

considers a witness is 

not being truthful,

steps may be taken to

address the issue 

either in the

investigation or as a 

disciplinary issue.

The Policy is clear that

any breaches may

result in disciplinary

action being taken.

Evidence reference:

Not implemented.

In circumstances where 

misleading or non-

responsive interviews are 

identified as a principal 

exposure, the specific 

implementation of this 

condition remains 

appropriate.

DP World appears to 

accept the proposition 

that that condition is an 

appropriate requirement

but has failed to include

it specifically in the

current policy.

I propose to make 
related orders.








80

ITEM Relief sought DP World position Applicants’ position Decision
The Workplace

Behaviour Policy, 

annexure GM-13, in

paragraph

10.1, states that all

employees are required

to:

� “read, 
understand and 
comply with this 
Policy;

� “ensure they do 
not engage in
any 
unacceptable
conduct”;

� “ensure they do
not aid, abet or
encourage 
other persons to
engage in 
unacceptable 
workplace 
behaviour”; and

� “comply with
all lawful and 
reasonable 
directions in 
relation to
investigations 
conducted by
the Company in
relation to 
breaches of this
Policy”.

The Workplace
Behaviour Policy also
states in section 15 that:
“If an employee
breaches this policy, 
they may be subject to
disciplinary action. In
serious cases this may 
include termination of 
employment.”

Statement of McCluskey
at paragraphs 25(e) and
127-128.

APOC 106 That DP World Summary of position: Relief agreed to by DP I propose to make 








81

ITEM Relief sought DP World position Applicants’ position Decision
(relief

sought as at

27 January

2015)

report back to
FWC on its
progress in 
implementing
the above 
requirements in 
paragraph 105 
above, the 
adequacy of the
particulars in 
paragraph 104A 
above, and in 
implementing
the proposal in 
paragraph 104B 
within three 
months.

If the Commission

forms the view that

any future bullying

conduct would be

curtailed by the

prospect of a report

back, DP World would 

not oppose such an 

order.

References:

This issue is 

addressed in 

paragraph 28(d) of

the Outline of closing

submissions dated 21
August 2015.

See also See also
Transcript from 3
August 2015 at PN59-64
and from 24 August
2015, at PN5339-5340.

World related orders.

Submissions 

dated 7 July

2015 

paragraph 38.1

That the 
Commission
refer the WST
workplace to the
President with a
request that the
Commission 
allocate a
member to
monitor the
WST workplace
as he or she
deems fit under
the 
Commission’s 
“developing
better 
workplaces” 
program

This relief was first

sought in the 

Applicants’ Outline of

Submissions filed on 7

July 2015.

Summary of position:

There are clear policies

and procedures already

in place. Duplication

of these policies and 

procedures will not

have any utility and

would not prevent

future bullying.

References:

This issue is 

addressed in 

paragraph 37 of the

Outline of 

Submissions of DP

World Melbourne

Not implemented, not 

agreed to by DP World. 

Applicants continue to 

seek this relief for reasons 

set out in Submissions 

dated 7 July 2015 in 

paragraphs 12-14, and 36-

37.

DP World appears to take 

issue with the date on 

when this relief was 

identified.

This relief was considered 

appropriate to seek 

following provision of 

previously undisclosed DP

World material filed in 

this proceeding in early

2015.

I do not propose to 

make the request.








82

ITEM Relief sought DP World position Applicants’ position Decision
Limited dated 24

July

2015.

See also Transcript from 
3 August 2015 at PN59-
64.

Submissions 

dated 7 July 

2015

paragraph

38.2

That DP

World issue a

revised

Whistleblower 

Policy which 

provides for

an internal 

ombudsman 

function that

will be 

required to

regularly

report to the

DP World

group board

on the level

and nature of 

interpersonal 

complaints

and the 

timeliness of

DP World in

dealing with

those 

complaints

(without 

requiring the 

internal 

ombudsman to 

take any steps

to resolve the 

complaints,

which 

function

would remain

with line 

managers and 

human

resources 

staff). We are 

This relief was first
sought in the Applicants’
Outline of Submissions 
filed on 7 July 2015.

Summary of position:

There is no evidence to

justify such an order.

There is no evidence 

that reporting to the

board of DP World or

establishment of an 

internal ombudsman

function would

facilitate resolution or 

prevention of any future

bullying of the

Applicants (or any other 

person).

The evidence does

demonstrate that there

are clear policies and 

procedures already in 

place for complaints of

bullying conduct and 

escalation of these

issues. Duplication of

these policies and 

procedures will not

have any utility and 

would not prevent

future bullying.

References:

This issue is 

addressed in 

paragraph 37 of the

Outline of 

Submissions of DP

Not implemented, not 

agreed to by DP World.

Applicants continue to 

seek this relief for reasons 

set out in Submissions 

dated 7 July 2015 in 

paragraphs 12-14, 16 and 

36-37.

DP World appears to take 

issue with the date on 

when this relief was 

identified.

This relief was considered 
appropriate to seek 
following provision of 
previously undisclosed DP
World material filed in this 
proceeding in early 2015.

I accept DP 

World’s 

submission and 

do not propose to 

make such an 

order.








83

ITEM Relief sought DP World position Applicants’ position Decision
instructed DP

World has a

current 

whistleblower

policy that

excludes 

interpersonal

issues.

World Melbourne

Limited dated 24 July

2015 and in

paragraph 28(g) of

the Outline of

Closing Submissions

of DP World

Melbourne Limited

dated 21 August

2015.

See also Transcript from 
3 August 2015 at PN59-
64 and from 24 August
2015, PN5375.

Submissions 

dated 14

August 2015 

paragraph 41

Not require the 
Applicants to 
attend for work, 
without loss of
pay, until it has
engaged an
independent 
occupational 
psychologist to 
review and 
recommend any 
changes to DP 
World’s present 
return to work 
plans for the 
Applicants.

This relief was first
sought on 2 August
2015.

Summary of position:

This type of order is not

directed towards

preventing future

bullying. There is no

evidence to justify such 

an order. Unless there

is an imminent risk to

the Applicants, it is 

appropriate for them to

return to work, subject

to them being medically

fit to do so. To the

extent that there is a

question about the 

Applicants’ fitness to

work, this is a medical

question. The reports in 

evidence demonstrate

that there is no medical

condition which prevent 

their return to work at

the current time.

In any event, to the

extent that the relief

sought requires

payment, this order

cannot be made under 

Not implemented, not 

agreed to by DP World. 

Applicants continue to 

seek this relief for reasons 

set out in Submissions 

dated 14 August 2015 

paragraphs 34-35.

DP World appears to take 

issue with the date on 

when this relief was 

identified.

This relief was considered 
appropriate to seek 
following steps taken by DP
World in June/July 2015 to
seek a return to work when it
raised RTW and Risk
Assessment documents.

I propose to make a 

related order.








84

ITEM Relief sought DP World position Applicants’ position Decision
section 789FF.

References:

This issue is addressed

in paragraph 28(e) of

the Outline of Closing

Submissions of DP

World Melbourne

Limited dated 21

August 2015.

See also Transcript from 
3 August 2015 at PN59-
64 and from 24 August
2015, PN5371-5374 and
Exhibits 39-41.

Submissions 

dated 14

August 2015 

paragraph 42

Re-credit any 
annual or
personal leave
used by the 
Applicants in
and from June
2015 (that is, 
when the DP
World direction 
to each applicant
to take special
leave ended) up 
to the date the 
Commission
order in the
above paragraph
applies

This relief was first
sought on 2 August
2015.

Summary of position:

This type of order is not

directed towards

preventing future

bullying. There is no

evidence to justify such 

an order. In any event,

to the extent that the

order requires payment,

this order cannot be 

made under section

789FF.

References:

This issue is addressed

in paragraph 28(f) of

the Outline of Closing

Submissions of DP

World Melbourne

Limited dated 21

August 2015.

See also See also
Transcript from 3
August 2015 at PN59-64
and from 24 August
2015, PN5369-5370.

Not implemented, not 

agreed to by DP World. 

Applicants continue to 

seek this relief for reasons 

set out in Submissions 

dated 14 August 2015 

paragraphs 34-35.

DP World appears to take 

issue with the date on 

when this relief was 

identified.

This relief was considered 

appropriate to seek 

following steps taken by 

DP World in June/July

2015 to seek a return to 

work when it raised RTW 

and Risk Assessment 

documents.

This is not an order 

directed to stopping 

bullying.

Cases cited by this decision: