Application by Purcell, Susan - [2016] FWC 2308

1

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

Ms Susan Purcell

v

Ms Mary Farah and Mercy Education Ltd T/A St Aloysius College
(AB2015/261)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 11 JULY 2016

Application for an order to stop bullying; whether applicant bullied at work; unreasonable 
conduct; reasonable management action; whether created risk to health and safety; some of 
the conduct alleged is repeated unreasonable behaviour towards the applicant that created a 
risk to the applicant’s health and safety; facilitated or mediated meetings proposed before 
consideration of any Orders.

Introduction

[1] It is a sad indictment on the capacity of two education professionals and the 
educational institution in which they are employed, that to resolve an obviously tense 
interpersonal relationship involving some mutual animus, resort must be had to this tribunal 
and the anti-bullying provisions of the Fair Work Act 2009 (Act). But, that it seems is the way 
of things, with workplace combatants all too keen to cede to a third party the capacity to 
resolve conflict, which with a modest amount of goodwill, some introspection and reflection,
ought be capable of resolution by the combatants themselves. In my respectful opinion, this is 
a case in point.

[2] Ms Susan Purcell is the applicant in this proceeding and is a teacher employed by 
Mercy Education Ltd T/A St Aloysius College (Mercy Education). 

[3] On 25 May 2015, Ms Purcell made an application for an order to stop bullying
pursuant to s.789FC of the Act. Ms Purcell would like the Fair Work Commission 
(Commission) to make a finding and issue a statement to the effect that she has been bullied at 
work by Ms Mary Farah, the first respondent and Principal of St Aloysius College (College). 

[4] The application sets out various incidents of alleged unreasonable behaviour or 
conduct engaged in by Ms Farah on which Ms Purcell relies to make good her allegation that 
she was bullied at work.

[5] Ms Purcell was first employed by Mercy Education in 1994. She left in 1995 and 
returned in 1998, and has been employed as a teacher by Mercy Education at the College ever 

[2016] FWC 2308

DECISION


E AUSTRALIA FairWork Commission




 



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since.1 Ms Purcell was appointed as the VCAL Co-ordinator in 2010 but ceased this role in 
2015.2 Ms Purcell was elected as an Occupational Health and Safety Representative (OH&S 
Representative) in May 2013.3

[6] Ms Farah was appointed the Principal of the College in 2013.4 She had a mandate 
from the Board of Mercy Education to effect change and to arrest a declining enrolment at the 
College. As is commonly the case, some staff were resistant to change and preferred the status 
quo. Ms Purcell gave evidence that she became increasingly concerned about Mercy 
Education’s bullying policy shortly after Ms Farah commenced as Principal and, during her 
first Occupational Health and Safety (OH&S) meeting on 28 May 2013, she raised the issue 
of bullying and the need to update the policy.5 Shortly after this meeting, Mr Brian Collins, 
former Business Manager of the College, resigned.6

[7] A new Business Manager, Mr Andrew Coates, was appointed by Mercy Education to 
the College. On 28 September 2013, Mr Coates attended an OH&S meeting and, at the 
meeting, agreed to review the bullying policy by the end of the year.7 However, this did not 
eventuate and by 2014, Ms Purcell became very concerned about the bullying policy. She 
again raised the issue at an OH&S meeting on 1 April 2014.8

[8] Ms Purcell contends that, at that stage, there was no Deputy Principal at the College
because Ms Anne Henderson had resigned from that position in 2013 after Ms Farah had been 
appointed. Ms Anne Henderson continued to be listed in the outdated bullying policy as the 
complaints officer. The result of this, according to Ms Purcell, was that there was neither a 
Deputy Principal nor a complaints officer to whom staff could raise any concerns they may 
have regarding bullying, and this was of particular concern to Ms Purcell because her
evidence was that most complaints being made to her were about Ms Farah.9

[9] Ms Purcell did not bring this issue up again until the end of 2014, but according to her 
statement the bullying policy was revised and re-issued in 2015 after she filed complaints in 
December 2014.10

[10] From approximately January 2015 to early July 2015, Ms Purcell was on long service
leave (LSL). She returned from LSL on the understanding that the current Deputy Principal, 
Ms Rachel Valentine, would deal with any employment issues on behalf of Ms Farah as an 
interim measure on account of this application.

[11] Ms Purcell has identified a number of incidents occurring from late 2013 and 
continuing after her return from LSL in mid-2015 which she maintains were together repeated 
unreasonable behaviour by Ms Farah towards her. Each of the incidents is discussed later in 
this decision. The case advanced by Ms Purcell also contained allegations of conduct by Ms 
Farah towards other staff members, and allegations about Mr Coates’ conduct towards Ms 
Purcell and others. I have not dealt with these allegations in determining this part of the 
                                               
1 Exhibit 2 at [3].
2 Ibid at [5].
3 Ibid at [7].
4 Ibid at [9].
5 Ibid at [12].
6 Ibid at [14].
7 Ibid; Exhibit 2, SP-2.
8 Ibid at [15].
9 Ibid.
10 Ibid at [17]; Exhibit 2, SP-3.








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proceeding save where regard to these allegations was necessary in the context of the 
principal allegations of conduct by Ms Farah towards Ms Purcell. I have also not taken into 
account the evidence of the telephone conversation between Ms McCallum and Ms Purcell on 
28 August 2015 as on the whole I found the evidence of what was said, the nature of the notes 
made and how much of the conversation was recorded, as unreliable. Although I have not 
referred to every portion of the evidence that has been led in this lengthy proceeding, I have 
considered all of it. However, for reasons indicated above, I have not taken into account some 
of the evidence, during this phase of the proceeding. I also note that Mercy Education has, 
unless otherwise stated, adopted and relied upon the submissions made by Ms Farah.11

Summary

[12] I have concluded that four of the incidents about which Ms Purcell complains, taken 
together, amount to repeated unreasonable behaviour by Ms Farah towards Ms Purcell, the 
effect of which caused Ms Purcell distress and thereby created a risk to Ms Purcell’s mental 
health. Consequently, Ms Purcell was bullied at work. My reasons for that conclusion follow 
below.

Jurisdiction

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

[14] That I have jurisdiction to deal with the application is not in contention in the sense 
that the application for an order or orders under s.789FF is a valid one. Ms Purcell is a worker 
for the purposes of s.789FC of the Act, in that she is an employee of Mercy Education which 
operates a business known as St Aloysius College. There is no dispute that this business is a 
constitutionally-covered business within the meaning of s.789FD of the Act.

[15] There is also no suggestion that Ms Purcell does not reasonably believe that she has 
been bullied at work.

[16] In Mac v Bank of Queensland Limited and Others,12 Hatcher VP undertook a detailed 
analysis of the jurisdiction created by Part 6–4B of Chapter 6 of the Act and its application. 
The Vice President observed as follows:

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

(1) If:

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

(b) the FWC is satisfied that:

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

                                               
11 Outline of Final Submissions of Mercy Education Limited at [33].
12 [2015] FWC 774.








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

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

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

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

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

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

[76] The first prerequisite - which I would read as meaning “in accordance with s.789FC” -
effectively imports the requirement in s.789FC(1) that an application for an order under 
s.789FF may only be made by “A worker who reasonably believes that he or she has been 
bullied at work”. “Worker” for the purposes of Part 6-4B is defined in s.789FC(2) to have the 
same meaning as in the Work Health and Safety Act 2011 (WHS Act), but does not include a 
member of the Defence Force. Section 7 of the WHS Act defines what a worker is for the 
purpose of the WHS Act. The main part of that definition is contained in s.7(1), which 
provides:

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

(a) an employee; or 

(b) a contractor or subcontractor; or 

(c) an employee of a contractor or subcontractor; or 

(d) an employee of a labour hire company who has been assigned to work in the 
person's business or undertaking; or 

(e) an outworker; or

(f) an apprentice or trainee; or 

(g) a student gaining work experience; or 

(h) a volunteer; or 

(i) a person of a prescribed class. 

[77] Other subsections of s.7 supplement the definition: s.7(2) includes identified officers and 
employees of the Australian Federal Police; s.7(2A) includes members of the Defence Force; 
s.7(2B) includes persons holding or acting in offices created by a law of the Commonwealth or 
a law of a Territory (other than the ACT, the Northern Territory and Norfolk Island); s.7(2C) 
includes persons who constitute or act as the person constituting a public authority; s.7(2D) 
includes persons who are or act as a member or deputy member of a public authority; s.7(2E) 
includes persons who are or act as a member or deputy member of a body established by or 
under an Act for a public authority for a purpose associated with the performance of the 
functions of the public authority; and s.7(2F) includes persons of a class who engage in the 








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activities or perform the acts specified in s.7(2G) and who are declared by the Minister by an 
instrument in writing to be workers for the purposes of the WHS Act. These extensions of the 
definition in s.7(1) of the WHS Act would all be caught by the cross-referential provision in 
s.789FC(2) of the FW Act and thus be subject to Part 6-4B of the FW Act except members of 
the Defence Force.

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

[79] An applicant under s.789FC must not only be a worker but must be one who “reasonably 
believes that he or she has been bullied at work”. The expression “reasonable belief” and 
similar expressions are utilised in a wide variety of contexts by the statutory and common law. 
It is clear from cases decided in those differing contexts that not only must the requisite belief 
be actually and genuinely be held by the relevant person, but in addition the belief must be 
reasonable in the sense that, objectively speaking, there must be something to support it or 
some other rational basis for the holding of the belief and it is not irrational or absurd. For 
example, in the context of the Federal Court rules concerning applications for preliminary 
discovery, which require the holding by Ms Purcell of a reasonable belief that that there may be 
a right to obtain relief against another person not presently a party to a proceeding in the Court,
it has been held that “there must be some tangible support that takes the existence of the alleged 
right beyond mere ‘belief’ or ‘assertion’ by Ms Purcell” or that “there must be some evidence 
that inclines the mind towards the matter of fact in question”. In relation to a NSW statutory 
provision prohibiting legal practitioners from providing legal services on a claim or defence of 
a claim for damages unless the practitioner reasonably believed that the claim or defence had 
reasonable prospects of success, it has been held that the practitioner’s belief that there was 
material which justified proceeding will not be reasonable if it “unquestionably fell outside the 
range of views which could reasonably be entertained”. In relation to the concept of a 
“reasonable hypothesis”, it has been held that in order to be a reasonable one a hypothesis must 
be rationally based and possess some degree of acceptability or credibility, and must not be 
irrational, absurd or ridiculous. These examples all illuminate the way in which the 
Commission should approach the task of considering whether Ms Purcell worker has the 
necessary reasonable belief such as to confer standing to make an application under s.789FC.

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

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








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789FD When is a worker bullied at work?

(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally-covered business:

(i) an individual; or 

(ii) a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of 
which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action 
carried out in a reasonable manner.

(3) If a person conducts a business or undertaking (within the meaning of the Work 
Health and Safety Act 2011) and either:

(a) the person is:

(i) a constitutional corporation; or 

(ii) the Commonwealth; or 

(iii) a Commonwealth authority; or 

(iv) a body corporate incorporated in a Territory; or

(b) the business or undertaking is conducted principally in a Territory or 
Commonwealth place;

then the business or undertaking is a constitutionally-covered business.

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

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

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








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the worker (ie Ms Purcell). The individual(s) who engage in the unreasonable behaviour 
towards the worker need not be ‘at work’ at the time they engage in that behaviour.

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

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

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

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

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

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

[86] The next element in the s.789FD definition is that an “individual” or “a group of 
individuals ... repeatedly behaves unreasonably towards the worker or a group of workers of 
which the worker is a member ...”. Under s.2B of the Acts Interpretation Act 1901 (Cth) the 
word “individual” in an Act refers to a natural person unless a contrary intention is indicated. 
There is nothing in section 789FD or any provision of Part 6-4B which suggests that bullying at 
work is something which can be engaged in by a corporation. There is no stated restriction upon 
which individuals may engage in the relevant behaviour; as was pointed out in Bowker:

‘[31] ...The individuals engaging in the unreasonable behaviour need not be workers, for 
example they could be customers of the business or undertaking in which Ms Purcell
works. Nor do the relevant statutory provisions contain any requirement for these 








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individual(s) to be ‘at work’ at the time they engage in the unreasonable behaviour which 
Ms Purcell contends constitutes bullying.’

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

‘109. The Committee went on to note that ‘repeated behaviour’ refers to the persistent 
nature of the behaviour and can refer to a range of behaviours over time and that 
‘unreasonable behaviour’ is behaviour that a reasonable person, having regard to the 
circumstances may see as unreasonable (in other words it is an objective test). This would 
include (but is not limited to) behaviour that is victimising, humiliating, intimidating or 
threatening.’

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

‘[41] Having regard to the approach urged by the authorities, the concept of individuals 
‘repeatedly behaving’ unreasonably implies the existence of persistent unreasonable 
behaviour but might refer to a range of behaviours over time. There is no specific number 
of incidents required for the behaviour to represent ‘repeatedly’ behaving unreasonably 
(provided there is more than one occurrence), nor does it appear that the same specific 
behaviour has to be repeated. What is required is repeated unreasonable behaviour by the 
individual or individuals towards Ms Purcell worker or a group of workers to which Ms 
Purcell belongs.

[43] ‘Unreasonable behaviour’ should be considered to be behaviour that a reasonable 
person, having regard to the circumstances, may consider to be unreasonable. That is, the 
assessment of the behaviour is an objective test having regard to all the relevant 
circumstances applying at the time.’

[89] I respectfully agree with those statements, but I would add three further observations about 
the interpretation and practical application of the expression “repeatedly behaves 
unreasonably” in s.789FD(1)(a). First, the expression falls within a definition provision. The 
function of a legislative definition, as was pointed out by McHugh J in Kelly v R, is not to enact 
substantive law, but to provide aid in construing the statute. A definition provision is therefore 
not to be interpreted in isolation and thereby given a meaning which negates the evident policy 
or purpose of a substantive enactment. Part 6-4B has the evident purpose of establishing a 
mechanism by which the bullying of workers at work may be stopped. In interpreting, and 
applying, the expression “repeatedly behaves unreasonably” as it appears in s.789FD(1)(a), the 
concept of repeated unreasonable behaviour is not to be approached in a manner which divorces 
it from that purpose. The subject matter is bullying at work, and that must be borne steadily in 
mind in any consideration as to whether particular behaviours are unreasonable for the purpose 
of s.789FD(1)(a). A consideration of unreasonable behaviour which loses sight of the objective 
and subject matter of Part 6-4B may lead to the provisions not achieving their intended 
purposes, or being used for a purpose that was not intended.

[90] The second observation is that unreasonableness and its converse, reasonableness, are 
familiar legal concepts applicable in a range of diverse contexts. In Giris Pty Ltd v Federal 
Commissioner of Taxation Windeyer J said: “It is, of course, true that, as a measure in fact of 
time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common 








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law...”. Where, in an anti-bullying case such as this one, the requisite repeated unreasonable 
behaviour towards the workers is said to be constituted by or include unreasonable 
discretionary managerial decisions directed to that worker, some useful guidance may be 
obtained in assessing whether the definitional standard in s.789FD(1)(a) is met from decisions 
concerning judicial review of administrative discretionary decision-making. In Minister for 
Immigration and Citizenship v Li the High Court considered the standard of unreasonableness 
applicable to such decision-making. The plurality (Hayne, Kiefel and Bell JJ), in considering 
the well-known formulation of unreasonableness stated in Associated Provincial Picture 
Houses Ltd v Wednesbury Corporation, said that the legal standard of unreasonableness 
“should not be considered as limited to what is in effect an irrational, if not bizarre, decision -
which is to say one that is so unreasonable that no reasonable person could have arrived at it”. 
They concluded their analysis by saying: “Unreasonableness is a conclusion which may be 
applied to a decision which lacks an evident and intelligible justification”. That formulation 
provides a useful yardstick for the application of the provision in a case such as this one. 

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

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

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

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

‘[44] The unreasonable behaviour must also create a risk to health and safety. Therefore 
there must be a causal link between the behaviour and the risk to health and safety. Cases 
on causation in other contexts suggest that the behaviour does not have to be the only 
cause of the risk, provided that it was a substantial cause of the risk viewed in a common 
sense and practical way. This would seem to be equally applicable here.

[45] A risk to health and safety means the possibility of danger to health and safety, and 
is not confined to actual danger to health and safety. The ordinary meaning of ‘risk’ is 
exposure to the chance of injury or loss. In the sense used in this provision, the risk must 
also be real and not simply conceptual.’

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








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[95] Section 789FD(2) is loosely modelled upon provisions in Australian workers’ 
compensation statutes which exclude employers’ liability for certain workplace injuries caused 
by reasonable management action. In the context of s.789FD as a whole, the subsection does 
not operate as an exclusion as such but only operates (as expressly stated) to avoid doubt, since 
it is clear that reasonable management action undertaken in a reasonable manner would not 
constitute unreasonable behaviour under s.789FD(1)(a) in the first place. However it does serve 
to provide guidance in the interpretation and application of the unreasonable behaviour element 
of s.789FD(1)(a) in circumstances where an applicant alleges that management action such as 
performance management, disciplinary action, allocation of work, restructuring of the 
workplace and employer directions constitutes bullying. In Re SB there is a detailed exegesis of 
this provision, based on authorities concerning analogous workers’ compensation decisions, 
with which I respectfully agree but which it is not necessary to set out here.”13 [Endnotes 
omitted]

[17] I respectfully adopt the Vice President’s analysis in Mac.

Reasonable management action

[18] As the incidents about which complaint is made raise for consideration whether the 
conduct or behaviour as alleged was reasonable management action carried out in a 
reasonable manner, it is necessary to say something about that issue. If the alleged behaviour 
can be said to be reasonable management action carried out in a reasonable manner, the 
behaviour will not amount to a worker being bullied at work.14

[19] The Explanatory Memorandum15 relevantly provides as follows:

“New section 789FD – When is a worker bullied at work?

107. New subsection 789FD(1) provides that a worker is bullied at work if, while the 
worker is engaged by a constitutionally-covered business, another individual, or 
group of individuals, repeatedly behaves unreasonably towards the worker, and that 
behaviour creates a risk to health and safety.

…

111. The Committee also found that balanced against this definition is the need for 
managers to be able to manage their staff. New subsection 789FD(2) is included to 
clarify that reasonable management action when carried out in a reasonable manner 
will not result in a person being ‘bullied at work’.

112. Persons conducting a business or undertaking have rights and obligations to take 
appropriate management action and make appropriate management decisions. They 
need to be able to make necessary decisions to respond to poor performance or if 
necessary take disciplinary action and also effectively direct and control the way 
work is carried out. For example, it is reasonable for employers to allocate work 
and for managers and supervisors to give fair and constructive feedback on a 
worker’s performance. These actions are not considered to be bullying if they are 
carried out in a reasonable manner that takes into account the circumstances of the 
case and do not leave the individual feeling (for example) victimised or 
humiliated.”

                                               
13 Ibid at [74] – [95].
14 Section 789FD(2).
15 Explanatory Memorandum to the Fair Work Amendment Bill 2013.








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[20] The assessment of reasonableness is a question of fact and the test is an objective 
one.16 In Ms SB, Hampton C set out the test that should be used in order to determine whether 
management action is reasonable:

“[49] Determining whether management action is reasonable requires an objective assessment 
of the action in the context of the circumstances and knowledge of those involved at the time. 
Without limiting that assessment, the considerations might include:

 the circumstances that led to and created the need for the management action to be 
taken;

 the circumstances while the management action was being taken; and

 the consequences that flowed from the management action.

[50] The specific ‘attributes and circumstances’ of the situation including the emotional state 
and psychological health of the worker involved may also be relevant.

[51] The test is whether the management action was reasonable, not whether it could have 
been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’. In general 
terms this is likely to mean that:

 management actions do not need to be perfect or ideal to be considered reasonable;

 a course of action may still be ‘reasonable action’ even if particular steps are not;

 to be considered reasonable, the action must also be lawful and not be ‘irrational, 
absurd or ridiculous’; 

 any ‘unreasonableness’ must arise from the actual management action in question, 
rather than the applicant’s perception of it; and

 consideration may be given as to whether the management action involved a significant 
departure from established policies or procedures, and if so, whether the departure was 
reasonable in the circumstances.

[52] For the circumstances in s.789FD(2) of the FW Act to apply, the management action 
must also be carried out in a ‘reasonable manner’. Consistent with the approach above, what is 
‘reasonable’ is a question of fact and the test is an objective one.

[53] Whether the management action was taken in a reasonable manner may depend on the 
action, the facts and circumstances giving rise to the requirement for action, the way in which 
the action impacts upon the worker and the circumstances in which the action was 
implemented and any other relevant matters.”[Endnotes omitted]17

[21] The reasonableness of management action will depend on the action taken, the 
circumstances, the way in which the action impacts upon the worker, the implementation of 

                                               
16 Re Ms SB [2014] FWC 2104 at [52].
17 Ms SB [2014] FWC 2104 at [49]-[53]; Re GC [2014] FWC 6988.








[2016] FWC 2308

12

the action and any other relevant matters.18 Furthermore, as Hatcher VP observed in Mac, “an 
employee must be able to demonstrate that the decision to take management action lacked any 
evident and intelligible justification such that it would be considered by a reasonable person 
to be unreasonable in all the circumstances”.19

[22] It should also be observed that “management action” is apt to describe a range of 
conduct which affects an employee. Management action is not confined to matters that might 
be regarded as a managerial decision. The term catches a much wider form of conduct or 
behaviour including such things as performance and disciplinary matters, the allocation of 
work and the way in which work is to be carried out.

Conduct alleged

[23] I now turn to Ms Purcell’s allegations of unreasonable behaviour by Ms Farah towards 
her. There are 16 incidents of unreasonable behaviour alleged and I address each separately
below.

Incident One – VCAL Classroom and Co-ordinator’s Office

[24] The unreasonable behaviour complained of by Ms Purcell is said to have begun in or 
about October or November 2013. At that time, Ms Purcell learned that Ms Farah had made a 
decision not to allocate a dedicated classroom to the VCAL program in 2014.20 VCAL is a 
“hands on” alternative to the VCE program for senior students and requires a large amount of 
physical resources and materials.21 Ms Purcell had been the VCAL Co-ordinator since 2010 
and the VCAL program had always been allocated a dedicated classroom during that time.22

Ms Purcell does not suggest that the VCAL program required a specific or particular 
classroom, just one that was designated for the program, as the program seems to have been 
assigned different designated classrooms over the period of four years.23

[25] In November 2013, Ms Purcell organised a meeting with Ms Farah to discuss issues 
with the VCAL program, including the decision not to allocate a dedicated classroom to the 
program. The attendees at the meeting included Ms Purcell, Ms Farah, Mr Justin Roberts and 
Ms Anna Marizita (Year Level Co-ordinators), Ms Bernadette Doufalidis (VCAL teacher) 
and Ms Anne Henderson (then Deputy Principal).24

[26] Ms Purcell alleges that when the meeting started “it was obvious from Mary’s body 
language that she was angry”.25 Ms Purcell alleges that Ms Farah “folded her arms across her 
chest, kept shaking her head no and stared at me unblinking”.26 It is also alleged that Ms 
Farah sternly rejected the suggestions made during the meeting, and Ms Purcell claims that 
she felt “discouraged” and “upset by her abrupt, angry tone and body language and was 
embarrassed in front of my colleagues”.27 Throughout cross-examination, Ms Purcell

                                               
18 Keen v Workers Rehabilitation & Compensation Corporation (1998) 71 SASR 42; [1998] SASC 6519; Re Ms SB [2014] 
FWC 2104 at [52].
19 Mac v Bank of Queensland & Ors [2015] FWC 774 at [102].
20 Exhibit 2 at [19].
21 Ibid at [18].
22 Ibid.
23 Transcript PN760.
24 Exhibit 2 at [20].
25 Ibid at [21].
26 Ibid.
27 Ibid.








[2016] FWC 2308

13

maintained her view that Ms Farah was angry during this meeting, basing this view on her 
observation of Ms Farah’s body language, tone and intense stare during the meeting.28

[27] Ms Farah contends that she was not angry during this meeting. She also contends that 
she had no reason to be angry with Ms Purcell and that she could not remember anything 
specific Ms Purcell had said during the meeting.29 She expressed regret that Ms Purcell had 
taken offence at what she said or did during the meeting and indicated that she thought they 
had a good working relationship.30 Ms Henderson gave evidence that she had attended the 
meeting, that Ms Purcell raised concerns about the non-allocation of a dedicated classroom 
for the VCAL program and that Ms Farah told Ms Purcell that her request was refused.31 Ms 
Henderson makes no allegation that Ms Farah posited body language from which it could 
obviously be discerned that she was angry.32 Indeed, despite chronicling a number of largely 
irrelevant or at the least, tangentially relevant allegations about Ms Farah’s relationship with 
other employees of Mercy Education, Ms Henderson did not corroborate Ms Purcell’s view of 
Ms Farah’s conduct or demeanour during the meeting in November 2013.33

[28] The evidence does not support a conclusion that Ms Farah was angry during the 
meeting in November 2013. Interpreting body language, gestures and voice tones is fraught 
with danger and it seems clear that both Ms Henderson and Ms Purcell, though in attendance 
at the same meeting, drew different conclusions from Ms Farah’s body language, gestures and 
tone of voice, with the former giving no support in her evidence to Ms Purcell’s 
interpretation. The vagaries and subjective nature of body language interpretation is best 
summed up by the following extract from the transcript: 

“Now you've inferred from the body language at the meeting at paragraph 21 of your statement, 
going back to your statement, your affidavit, that Ms Farah was angry and your basis for that 
was your reading of her body language. That's correct?---(No audible reply)

So it's - - -

THE DEPUTY PRESIDENT: Ms Purcell, you nodded your head then. You didn't actually 
speak. You will need to?---Sorry.

Yes?---Could you repeat the question please?

MR MILLAR: I am sorry.  For the purposes of the transcript you'll need to make sure you 
give an audible answer?---Okay, and please just one question at a time.

Of course?---Thank you.

The view that you'd expressed in paragraph 21 about it being obvious that Ms Farah was angry 
was based on your reading of her body language at that meeting?---And her answers which 
were "No", "No".

And what I'm putting to you is that it's quite possible, is it not, that you misread her 
demeanour?---No.

                                               
28 Transcript PN741 – PN756.
29 Exhibit 21 at [29].
30 Ibid.
31 Exhibit 18 at [27].
32 See for example Exhibit 19 at [8].
33 Exhibit 18 at [8]-[26] and then at [27].








[2016] FWC 2308

14

And that she wasn't angry?---I believe she was.

You believe she was?---Yes.

But that's based on your observation of her body language, her demeanour during the 
meeting?---And the tone and the intense stare, yes.

And the tone and intense stare that you say - - -?---Yes.

But it's not as if she lost her cool during the meeting or said anything intemperate?---No, other 
than - no, what I've described.”34

But even if Ms Purcell’s assessment were correct, it cannot be supposed from that assessment 
alone that Ms Farah was angry at her.

[29] Ms Farah gave evidence that the reason the VCAL program was not allocated a 
dedicated classroom in 2014 was based on a decision to demolish the particular building 
where the classroom was located in order to make way for a dedicated year 7 area, which 
would help attract increased enrolments. Ms Farah contends that she consulted the leadership 
team about this decision and also received the approval of the Board of Mercy Education.35

She also gave evidence that Ms Purcell approached her when the demolitions began and asked 
for a new dedicated classroom. Ms Farah contends that she explained to Ms Purcell that, at 
previous schools she had worked at, the VCAL program did not have a dedicated classroom 
and that she saw no need for one at the College. She also offered that separate storage could 
be provided for the items used by students, if necessary.36 Ms Henderson agreed, during her 
evidence, that the need for the VCAL program to have a separate classroom was not a view 
shared by everyone,37 and that ultimately, a decision about classroom allocations was a matter 
for the Principal based on a broad discretionary assessment, and requiring the juggling of 
competing priorities and limited resources.38

[30] Ms Purcell contends that following the abovementioned meeting, her VCAL students 
asked if they could write a letter to Ms Farah outlining reasons for a dedicated classroom and, 
Ms Purcell agreed providing she could first proofread the letter.39 Ms Farah acknowledged 
receipt of a letter from the students on 29 November 2013.40 The circumstances in which the
letter was organised, drafted and sent to Ms Farah was challenged in cross-examination, but 
Ms Purcell contended that it was the students’ idea, that she proofread the letter before it was 
sent and that she was in the classroom while they prepared it. Ms Purcell insisted that students 
in the VCAL program are encouraged to take initiative and that this is “not atypical in a 
VCAL program”.41 She denied that she encouraged the students to challenge the authority of 
Ms Farah, and asserted that she only corrected the grammar and “made sure the language was 
diplomatic”.42

                                               
34 Transcript PN745 – PN757.
35 Exhibit 21 at [25].
36 Ibid at [30].
37 Transcript PN2956 – PN2957.
38 Transcript PN2958 – PN2961.
39 Exhibit 2 at [22]; PN773 – PN798.
40 Exhibit 21 at [31]; Exhibit 21, MF-2B.
41 Transcript PN773 – PN783.
42 Transcript PN794 – PN797.








[2016] FWC 2308

15

[31] Whatever may have been the motivation for the students’ letter, I do not accept that 
Ms Purcell’s involvement in the letter was designed to challenge the authority of Ms Farah. 
Objectively viewed, the students’ had an interest in the decision not to allocate a classroom to 
the VCAL program. It seems to me appropriate that those concerns be expressed in the 
manner they were. That Ms Purcell was involved in, and even encouraged the students to 
write the letter, is not evidence of any undermining, rather it shows no more than guiding 
students to express concerns in an appropriate and civil manner. There is no suggestion that 
Ms Purcell coerced or incited the students to write the letter. Moreover, the text of the letter 
itself43 could hardly be described as provocative or undermining. It is in terms politely 
expressed, hopeful of reconsideration and sets out the major reasons for a classroom 
allocation. If only all dissent were able to be expressed in such convivial terms. Ms Farah’s 
concern that the students were being used by Ms Purcell “as a tool to basically challenge”44

the decision was, with respect, a complete overreaction.

[32] Ms Purcell was informed, many months after the students’ letter had been sent to Ms 
Farah, by Ms Henderson, that Ms Farah was not impressed by receipt of the letter from the 
students and had said to Ms Henderson words to the effect, “If she wants to operate like this I 
will teach her”.45 Ms Farah gave evidence that she was concerned that Ms Purcell was using 
the students to challenge her decision. She was also disappointed that Ms Purcell had spoken 
to the students about the classroom allocations at such an early stage.46 Ms Farah also gave 
evidence that she said to Ms Henderson that she would “show Ms Purcell how professionals
should act”.47 I do not accept Ms Farah’s version of her conversation with Ms Henderson, and 
prefer Ms Henderson’s version for the following reasons: 

 Ms Henderson presented as a calm and considered witness, making appropriate 
concessions during cross-examination;48

 Ms Henderson’s answers to questions suggesting that she was motivated in raising 
issues concerning Ms Farah’s interactions with some staff, including Ms Purcell, by 
tensions between her and Ms Farah49 or by professional jealousy,50 were 
impressively answered and consistent with my overall impression of her as a truthful 
witness;

 Ms Farah’s version of the words she says she had used were not put to Ms 
Henderson in cross-examination. This was perhaps unsurprising since Ms Farah did 
not suggest in her witness statement51 that Ms Henderson’s account was inaccurate 
or incomplete. Indeed, the conversation does not rate a mention despite Ms Farah
benefiting from the provision of Ms Henderson’s statement in advance of preparing 
her own, and in which the words said to have been used by Ms Farah are set out;52

                                               
43 Exhibit 21, MF-2B.
44 Transcript PN3512.
45 Exhibit 18 at [27]; Transcript PN2975 – PN2995.
46 Exhibit 21 at [31].
47 Transcript PN3508.
48 See for example Transcript PN2957 – PN2962 and PN2973 – PN2975.
49 Transcript PN3012 – PN3016.
50 Transcript PN3035 – PN3043.
51 See Exhibit 21.
52 Exhibit 18 at [27].








[2016] FWC 2308

16

 Ms Farah adopted the content of her witness statement as true and correct in every 
particular53 as her evidence-in-chief and no application was made to adduce any 
further evidence-in-chief;

 Ms Farah’s version of the conversation with Ms Henderson first came to light in 
cross-examination,54 at which time Ms Farah says that she was “positive that she 
said that”,55 but not so positive as to include the version in her evidence-in-chief. 
Nor did she give instructions about her version of the conversation to her lawyers;56

 Ms Farah’s evidence about her view of Ms Purcell’s involvement in the students’ 
letter was, to say the least, inconsistent. On the one hand, Ms Farah gave evidence 
that she was “concerned that Susan may have been using the students to challenge” 
her decision,57 yet on the other she said that she regarded Ms Purcell’s involvement
as though it “wasn’t a big deal”.58

[33] That said, I am not satisfied that anything material came of the conversation. The 
conversation was not immediately disclosed to Ms Purcell and indeed, she did not become 
aware of it until about mid to late 2014,59 after Ms Purcell had first contacted Ms 
Henderson.60 Moreover, Ms Farah’s comments were likely made to Ms Henderson in 
confidence, as senior colleagues and in the expectation that the words would not later be 
quoted to others.61

[34] Furthermore, after the students’ letter, a brief email exchange62 followed between Ms 
Farah and Ms Purcell, as well as subsequent email exchanges which show a positive 
relationship,63 or at least one that had not been manifestly affected by Ms Purcell’s 
involvement in the students’ letter.

[35] Indeed, this issue at the heart of the students’ letter and of Ms Purcell’s concern was 
resolved when another member of the leadership team, Mr Robert Ruzbacky, who was also 
teaching a VCAL unit agreed that a dedicated VCAL classroom was appropriate. After 
conducting some investigations64 he approached Ms Farah indicating that there was a spare 
classroom. Ms Farah then agreed to allocate a dedicated room to the VCAL program.65

[36] Ms Purcell submits that the decision not to allocate a dedicated classroom to the 
VCAL program was not based on any demonstrable logic.66 I cannot agree. Whilst reasonable 
minds might differ as to the need for, or merits of, a dedicated classroom, it is not in dispute 
that at the time, the initial decision not to allocate a classroom was made by Ms Farah, a 

                                               
53 Transcript PN3066 – PN3067.
54 Transcript PN3508.
55 Transcript PN3509.
56 Transcript PN3531 – PN3540.
57 Exhibit 21 at [31]; Transcript PN3512.
58 Transcript PN3519.
59 Transcript PN2987 – PN2989.
60 Transcript PN2995 – PN3008.
61 Transcript PN2973 – PN2977.
62 Exhibit 21, MF-2D.
63 Exhibit 21, MF-2E.
64 Exhibit 32 at [13].
65 Exhibit 2 at [25]; Exhibit 21 at [35]; Exhibit 32 at [11] – [14].
66 Applicant's Outline of Submissions at [18].








[2016] FWC 2308

17

number of classrooms including the one then dedicated to the VCAL program were to be 
demolished in order to make way for a year 7 area.67

[37] Thereafter, decisions about the allocation of classroom resources needed to be made 
and these decisions fell to Ms Farah, who in making such decisions, is faced with the prospect 
of juggling competing priorities with limited resources, and ultimately when such decisions 
are made, not everyone affected will be happy.68 The ultimate decision that Ms Farah made, 
affected not only Ms Purcell but also those students who would participate in the VCAL 
program in 2014. There is little by way of probative evidence from which it might be inferred 
that the decision about which complaint is made, was directed to Ms Purcell or that she was 
being singled out or targeted by Ms Farah in making her decision. Though the decision 
affected Ms Purcell, I accept Ms Farah’s explanation of her reasons for making it. The 
decision was not conduct towards Ms Purcell merely because it affected her. In any event, the 
decision in the circumstances, was a reasonable one.

[38] Ms Purcell’s perception of Ms Farah’s demeanour during the November 2013 meeting 
is just that, a perception, and, as already indicated, is not corroborated by others who attended 
the meeting, in particular by Ms Henderson. There is little doubt, in my view, that Ms Farah
was unhappy with Ms Purcell’s conduct after she had made a decision, but it cannot be 
inferred from that unhappiness that the original decision was made for the purpose suggested 
by Ms Purcell. Moreover, that Ms Farah changed her view and ultimately allocated the VCAL 
program a dedicated classroom points to the contrary, and shows that her decision-making 
was not affected by her earlier displeasure at Ms Purcell’s involvement in the students’ letter. 

[39] Furthermore, I do not accept the submission of Ms Purcell to the effect that, as Ms 
Farah was ultimately persuaded by Mr Ruzbacky to allocate the VCAL program a classroom
based on the same arguments advanced by Ms Purcell, that this is indicative that Ms Farah’s 
conduct was for the purpose of singling out and targeting Ms Purcell. It might equally be said 
that, as Ms Farah changed her view, an inference might be drawn that the initial decision was 
not directed at isolating or targeting Ms Purcell at all. But more relevantly, the submission 
ignores the evidence of Mr Ruzbacky that he was approached by Ms Purcell towards the end 
of 2013 and asked by her whether he could find “a spare classroom to dedicate to the VCAL 
program”, and after investigating several rooms he identified a possible room which he then 
communicated to Ms Farah as part of his request that a dedicated classroom be allocated to 
the VCAL program.69 So it is then, that armed with information that a “spare classroom” 
would be available in 2014 for use by the VCAL program, Ms Farah changed her position and 
allocated a dedicated classroom. If the purpose or motivation of Ms Farah in making the 
original decision was to isolate or target Ms Purcell, then one would have expected much 
greater resistance to the allocation from Ms Farah than that which obviously occurred.

[40] Shortly following this incident, the offices occupied by Senior Level Coordinators 
were vacated for renovations. Other staff members, including the VET Coordinator and the 
two Year Level Co-ordinators were given another office but Ms Purcell was not, even though 
there was a vacant office.70 An office was said to have remained vacant for the first half of 
2014 and then given to another staff member in the second semester.71 Ms Purcell attached to 

                                               
67 Exhibit 21 at [25].
68 Transcript PN2958 – PN2962.
69 Exhibit 32 at [12] – [13].
70 Exhibit 2 at [24]; Exhibit 2, SP-5.
71 Ibid.








[2016] FWC 2308

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her witness statement a copy of the phone directory for semester one which indicated that, at 
that time, the office was empty.72

[41] Ms Farah set out the reason for the vacated offices (renovations) in her witness 
statement. She explained which staff members were allocated new offices and her reasons for 
the allocation. She explained that Ms Purcell was given a dedicated desk in the staff study 
room together with approximately 20 other teachers.73 Ms Purcell gave evidence that,
ultimately the issue was resolved with another member of the leadership dedicating a room 
for use by the VCAL Co-ordinator (Ms Purcell).74 Ms Farah said that it never occurred to her 
that Ms Purcell should need an office, as VCAL Co-ordinator, after the renovations.75 I do not 
accept Ms Farah’s evidence in this regard. As the passages from the transcript extracted below 
indicate, Ms Farah was well aware that Ms Purcell wanted an office:

“Okay. Can I take you to paragraph 41 of your statement? You say there it never occurred to 
you after the renovations that students should need an office as VCAL coordinator but Susan 
had raised this very issue with you in December 2013, hadn't she? I think you just gave that 
evidence. So it did occur to you that she might need an office as VCAL coordinator, didn't it, 
because she raised that with you?

THE DEPUTY PRESIDENT: In fairness, it depends on how one reads that sentence.

MR MATSON: Sorry, your Honour?

THE DEPUTY PRESIDENT: It depends on how one reads that sentence: it might equally be 
saying that after the renovations it never occurred to me that she needs an office; that is, after 
April 2014 rather than it never, ever occurred to me. You follow?

MR MATSON: I understand there's a small ambiguity there. But it did occur to you that Susan 
needed an office in 2014, didn't it?---When she told me.

She raised it with you?---She raised it with me that she wants to make phone calls, correct.

You knew that she'd had an office in 2013?---Yes, she did.

She raised with you, when the renovations started and she was going to be displaced, that she 
wanted an office and she had given you her reasons. The other staff who had been displaced 
from that same area had been given offices. That's correct, isn't it?---That is correct but I stand 
by my decision that VCAL role doesn't need an office.”76

[42] This, together with the obvious knowledge that Ms Purcell had an office in her 
capacity as VCAL Co-ordinator before the renovations and was displaced by them, makes the 
statement that it never occurred to Ms Farah that Ms Purcell would need an office as VCAL 
Co-ordinator after the renovations, seem weak, self-serving and frankly, disingenuous.
Indeed, it seems clear that Ms Farah did not allocate an office to Ms Purcell because Ms Farah
was firmly of the view that the VCAL Co-ordinator “doesn’t need an office”.77

                                               
72 Exhibit 2, SP-5.
73 Exhibit 21 at [36]-[41].
74 Exhibit 2 at [25].
75 Exhibit 21 at [41].
76 Transcript PN3688 – PN3695.
77 Transcript PN3647 and PN3696.








[2016] FWC 2308

19

[43] Ms Farah’s decision not to allocate an office to the VCAL Co-ordinator seems tinged 
with some arbitrariness when account is taken of the following matters: 

 The VCAL Co-ordinator had an office prior to the renovations;

 The other teachers whose offices had to be vacated because of the renovations were 
each allocated an office elsewhere in the College;78

 These other teachers occupied positions of VCE Co-ordinator and team leaders 
respectively;79

 Ms Farah provided an explanation for the subsequent allocation of an office to the 
VCE Co-ordinator,80 but no particular explanation is provided for the allocation of 
an office to each of the team leaders in preference to Ms Purcell; 

 The rationale for the allocation of offices post renovations, which were completed in 
March or April 2014 to the Gifted and Talented Education Co-ordinator, the 
Learning Support Leader and the Integration Officer81 is also unexplained; and

 An office at the College remained vacant for two terms in 2014.82

[44] But it does not follow that the conduct was towards Ms Purcell. The conduct 
complained of must, in my view, be viewed in context. First, it seems to me clear that the 
decision relates to the need for a VCAL Co-ordinator to have an office, it is not a decision that 
is personal to Ms Purcell, although she is affected by the decision. It is the need of the “role” 
that was assessed, not the person.83 That “needs” assessment was undertaken by Ms Farah
who concluded that the VCAL Co-ordinator did not need an office for reasons which included 
that the VCAL Co-ordinator was part of a group of staff, described as “middle leaders”, each 
of whom do not have offices.84 The needs assessment was doubtless also affected by Ms 
Farah’s view as to the need for the VCAL program to be allocated a dedicated classroom and 
her experience at other schools.85 Ultimately, decisions about use and allocation of the 
College’s scarce and finite resources are matters for the Principal and doubtless will 
sometimes be met with unhappiness or be the subject of controversy.

[45] Having regard to this context, it seems to me that the office allocation decision was not 
directed to Ms Purcell. It was based on an assessment that the position of VCAL Co-ordinator 
does not need an office. That position pertains today to the role of VCAL Co-ordinator, which 
is no longer occupied by Ms Purcell.86 For the reasons earlier given, I do not accept that the 
conversation between Ms Farah and Ms Henderson shortly after the students’ letter was 
received, shows either directly or indirectly that the office allocation decision was made to
target or isolate Ms Purcell. It follows that the office allocation decision was not a case of 
conduct towards Ms Purcell. But even if it could be so described, I do not consider the office 

                                               
78 Transcript PN3608 – PN3609.
79 Exhibit 21 at [38].
80 Ibid at [39].
81 Ibid at [40].
82 Transcript PN3660 – PN3673.
83 Transcript PN3609 and PN3659.
84 Transcript PN3659.
85 Exhibit 21 at [30].
86 Transcript PN3696.








[2016] FWC 2308

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allocation decision to be unreasonable. As Principal, Ms Farah was entitled to conclude that 
the VCAL Co-ordinator did not need an office. The reasons for that conclusion given by Ms 
Farah, are neither illogical nor unintelligible. That others might disagree with the assessment 
is beside the point. Reasonable minds might differ on the assessment,87 but that that is so, 
does not render the assessment or the decision made by reason of the assessment 
unreasonable.

Incident Two – Recycled Goods Market

[46] The escalating exchange between Ms Purcell and Ms Farah about the Recycled Goods 
Market underscores the animus between the two and is instructional in how molehills become 
mountains. 

[47] The incident began on 30 May 2014 following the organisation and conduct of a 
Recycled Goods Market by the students in Ms Purcell’s VCAL program. Ms Farah, in a note 
from the Principal to staff about various matters, acknowledged the work of Ms Purcell and 
the VCAL students in relation to the Recycled Goods Market. The acknowledgement read as 
follows: 

“A note from the Principal

…

VCAL
Congratulations to Sue and all the VCAL students on quite a magnificent re-cycled Fashion 
Parade”88

[48] Ms Purcell says that she corrected the mistaken reference to “Fashion Parade” in a 
light-hearted way in an email to all staff.89 The text of the email is reproduced below:

“A huge thank you to all the staff who contributed to the success of the VCAL RECYCLED 
GOODS MARKET

…

While the hotdogs looked slim and shapely in their Brumby cloaks…they were not 
Gucci…just Don

While the sausages sizzled on the cat walk and also donned Brumby, they were not 
Versace…just Coles

The closest thing to the Paparazzi were the papier mache piñata pigs for sale in the Hall.

While it was an exciting event, it was not a fashion parade. (see Principal’s weekly note)

…”90

                                               
87 For example Mr Ruzbacky thought that Ms Purcell “most likely should have had an office”, see Transcript PN6894 –
PN6897.
88 Exhibit 2 at [26]; Exhibit 21, MF-3C.
89 Exhibit 2 at [26].
90 Exhibit 2, SP-7; Exhibit 21, MF-3D.








[2016] FWC 2308

21

[49] As mentioned above, Ms Purcell contends that this email was sent in a “light-hearted 
way”, however, Ms Farah claims that she felt humiliated by Ms Purcell’s email.91 Ms Farah
contends that she considered the “…remarks and the general tone of her email to be 
unprofessional, offensive and humiliating”.92 Ms Farah also indicated that Ms Purcell should 
have contacted her directly, and if she had done so Ms Farah would have apologised and 
issued a note to the staff clarifying the mistake.93

[50] Ms Purcell gave evidence that Ms Farah sent Ms Purcell several emails stating Ms 
Farah expected more from a Co-ordinator and claiming that Ms Purcell had deliberately 
humiliated her.94 Ms Purcell alleges that Ms Farah made no attempt to discuss her concerns 
before sending the emails. She contends that she was very upset and that it is “not in my 
nature to set out to humiliate”.95

[51] As indicated above, Ms Purcell and Ms Farah exchanged various emails following the 
Principal’s note and Ms Purcell’s all staff email. Ms Farah gave evidence that she sent an 
email to Ms Purcell “expressing her views” about Ms Purcell’s all staff email.96 The text of 
Ms Farah’s email reads as follows:

“Dear Sue,

Thank you for all the work you did with the students ensuring such a successful event. I really 
appreciate all the work you did and only wished to acknowledge that in my note last week –
although perhaps made in gest, I did not appreciate your comment to staff. Highlighting 
innocent mistakes by staff is not a trait of mine, nor one I respect in others. I expect more from 
Coordinators.

Thank you

Regards,

Mary”97

[52] Ms Purcell responded by email, the text of which provides:

“Hi Mary

I’m glad I created this reaction. My comments were done in gest (as are most, as this is my 
way of coping with stress) and I suppose it may not have been your intention to trivialise an 
enormous effort, nevertheless as a CO-Ordinator, a professional and ultimately a human I 
want to mention the following points.

1. I feel as if the VCAL program is viewed as the ugly duckling of the school eg the 
classroom, no office, no access to telephone as I used to have. The students and parents 
have commented on this a number of times.

2. I feel as if the high number of students, some quite challenging, is taken for granted

                                               
91 Exhibit 21 at [54].
92 Ibid.
93 Ibid.
94 Exhibit 2 at [27]; Exhibit 2, SP-8; Exhibit 21, MF-3E.
95 Exhibit 2 at [27].
96 Exhibit 21 at [55].
97 Exhibit 21, MF-3E.








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3. I know that we are all being paid to fulfil our roles, yet reading your weekly Principal 
notes, it is obvious that some receive all your accolades and accurate descriptions of the 
work undertaken

While you have no respect for me as a Co-Ordinator, I know I am doing an exceptional job 
under the circumstances given the feedback from parents, colleagues and students.

Regards

Susan”98

[53] Ms Farah replied by email as follows:

“Thank you for your comments Sue.

I would have preferred that you had made a time to come and speak with me regarding some 
of your frustrations regarding VCAL – with your preferred solutions – rather than making a 
public statement intended to insult me.

I apologise for referring to the Market as a Fashion Parade – after I was happy to support the 
initiative and after speaking with the girls, it seemed they were most excited by the fashion 
aspect and that’s what stuck in my mind. My only and simple intention was to publicly 
acknowledge your efforts and the girls’ success, with no intention of upsetting you. Your 
reaction has been surprising.

As with any Coordinator who has ‘frustrations’ I would have expected an approach to be made 
to me to discuss how things could be improved – I thought, Sue, that we had that sort of 
relationship, and that’s what has disappointed me most, particularly as you confirmed your 
deliberate intent to insult.

Nevertheless, I am very happy to set up a meeting later in the week so that we can work 
together to see how your VCAL frustrations can be addressed – as you’re aware, I am in the 
process of trying to improve all areas of the College and anything I can do to help will be 
done.

Thanks 

Mary”99

[54] Ms Purcell’s reply was as follows:

“…I find the comments ‘making a public statement intended to insult me’ and ‘you confirmed 
your deliberate intent to insult’ very offensive as this was not the case and it is not in my 
nature.

My intention, as an effective VCAL Co-Ordinator, was merely to clarify a misunderstanding 
regarding an aspect of my program.

I thought, in a light hearted sense, I was being diplomatic as I included you in the joke.

                                               
98 Exhibit 2, SP-9; Exhibit 21, MF-3F – email from Applicant dated 1 June 2014, 3:07pm.
99 Exhibit 21, MF-3F – Email from First Respondent dated 1 June 2014, 5:14pm.








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As for my ‘frustrations’ with VCAL, I did attempt to address them when I set up a meeting 
with you late last year. Bernadette Doufalidis and Justin Roberts were also in attendance and 
also expressed concern over the high number and variety of student combinations in the class 
for 2014.

I feel it is also important to mention that in all my years of teaching, this is the first unpleasant 
incident I have had with a Principal.

If you consider a meeting is necessary, please let me know.

Like you, I also feel disappointed because I have been misunderstood and I truly thought you 
knew me better. We shared many laughs…”100

[55] Following this email exchange Ms Farah sent a correction email to all staff.101

[56] What then should be made of these exchanges? To begin with, Ms Farah not only 
acknowledged but congratulated Ms Purcell and all the VCAL students “on quite a 
magnificent” Recycled Goods Market in her Principal’s note.102 Unfortunately, as it turns out,
Ms Farah referred, erroneously, to the Recycled Goods Market as a fashion parade. There is 
no suggestion, much less any evidence, that the misnomer was deliberate. It is also doubtless 
the case that Ms Purcell’s all staff email in which she refers to and corrects the error in the 
Principal’s note was not intended to be malicious but rather, light-hearted. That said, it is 
rarely wise to refer to and highlight a mistake of another in an email that is widely circulated. 
It would have been prudent for Ms Purcell to have simply brought the error to the attention of 
Ms Farah and allowed her to correct it. That would have been the end of the matter.

[57] I can well understand that Ms Farah was embarrassed at having her error, however 
light-hearted the intention, highlighted in an all staff email. Ms Farah’s email to Ms Purcell
following the all staff email was, in the circumstances, not an unreasonable response. A phone 
call to discuss the matter, preceded perhaps by a day’s delay and calm reflection, might have 
been a better approach, but reasonableness is not to be judged by the lofty standards of best 
practice. The email begins with a thank you and an expression of appreciation of the work 
undertaken in relation to the Recycled Goods Market. It proceeds with an acknowledgement 
that the correction in the all staff email might have been made in jest and concludes with Ms 
Farah telling Ms Purcell that she did not appreciate having her innocent mistake highlighted 
to all staff. Ms Farah says that such conduct is not a trait of hers and one she does not respect
in others. Finally, Ms Farah says that she expects more from co-ordinators.103

[58] From here, the correspondence that passes between the two gets out of hand. There is 
first Ms Purcell’s suggestion in her reply, that she supposes “it may not have been your 
intention to trivialise an enormous effort”,104 with the obvious implication that Ms Purcell
regarded the Principal’s note as doing that very thing. The email concludes with that which I 
regard as a complete mischaracterisation by Ms Purcell of Ms Farah’s preceding email 
referred to above, that highlighting innocent mistakes by staff “is not a trait of mine, nor one I
respect in others. I expect more from Co-ordinators”. Ms Purcell writes in her email that:

                                               
100 Exhibit 21, MF-3F – email from Applicant dated 1 June 2014, 5:45pm.
101 Exhibit 2 at [27]; Exhibit 2, SP-9; Exhibit 21, MF-3G.
102 Exhibit 21, MF-3C.
103 Exhibit 21, MF-3F – email from First Respondent dated 1 June 2014, 2:39pm.
104 Exhibit 21, MF-3F – email from Applicant dated 1 June 2014, 3:07pm.








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“[W]hile you have no respect for me as a Co-Ordinator, I know I am doing an exceptional job 
under the circumstances given the feedback from parents, colleagues and students”105

[59] On no measure could Ms Farah’s concluding remarks be read as a criticism of Ms 
Purcell’s performance as the VCAL Co-ordinator. In my view, the tone and substance of Ms 
Purcell’s response was ill advised and was not assisted by the opening salvo that “I’m glad I 
created this reaction”.106

[60] Ms Farah’s reply was, in my view, for the most part reasonable and conciliatory. 
Again, a day’s reflection before sending the email might well have resulted in the omission of 
that part of the email which, after expressing disappointment that Ms Purcell’s frustrations,
expressed in the email referred to above, were not first discussed with Ms Farah, carries on 
with the barb “particularly as you confirmed your deliberate intent to insult”.107 This 
interpretation of Ms Purcell’s opening salvo is, in my view, exaggerated and with respect, a 
little bit precious. The email concludes with an offer to meet with Ms Purcell to discuss the 
issues that she had raised in her email.

[61] The final email in this chain is from Ms Purcell. Unsurprisingly she takes issue with 
Ms Farah’s exaggeration noted above. Otherwise, the email is not particularly controversial or 
inflammatory; although I note two matters. First, Ms Purcell does not take up the offer to 
meet with Ms Farah to discuss her concerns about the VCAL program. This was unfortunate. 
Secondly, the sentence in Ms Purcell’s email that “I thought, in a light-hearted sense, I was 
being diplomatic as I included you in the joke”108 shows a lack of awareness that all staff 
emails which highlight mistakes made by another, however light-heartedly expressed, might 
tend to offend (and in this case did offend) the person whose mistake has been highlighted.

[62] In my view, for the most part, Ms Farah’s emails in the chain discussed above were 
reasonable and proportionate. I agree with Ms Farah’s submissions that some of Ms Purcell’s 
responses, as set out in the chain of emails, were intemperate. As I have said, a degree of 
delay before responding, and reflection as well as a face-to-face meeting to discuss the 
various issues raised, rather than corresponding in the heat of the moment, would likely have 
avoided much of the angst that the various emails caused. But, I do not accept that the emails 
sent by Ms Farah to Ms Purcell amount to Ms Farah behaving unreasonably towards Ms 
Purcell when viewed in the context of the exchange as a whole, and Ms Purcell’s contribution 
to the exchange.

Incident Three – Meeting on 6 June 2014

[63] On 2 June 2014, Ms Farah asked her personal assistant (Ms Martelli) to organise a 
meeting with Ms Purcell to discuss the issues raised by Ms Purcell in relation to the VCAL 
program, and also to discuss the way Ms Purcell had communicated in the abovementioned 
emails.109 Ms Purcell gave evidence that upon receipt of the meeting request she contacted Ms 
Therese O’Loughlin, an official of the Independent Education Union (Union) seeking advice. 
According to Ms Purcell, Ms O’Loughlin and Ms Purcell agreed that it was not necessary for 
Ms O’Loughlin to attend the meeting.110

                                               
105 Ibid.
106 Ibid.
107 Exhibit 21, MF-3F – email from First Respondent dated 1 June 2014, 5:14pm.
108 Exhibit 21, MF-3F – email from Applicant dated 1 June 2014, 5:45pm.
109 Exhibit 21 at [61].
110 Exhibit 2 at [28].








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[64] Ms Purcell then alleges that she received an email from Ms Martelli asking whether 
“Theresa would attend the meeting tomorrow as she hadn’t replied to the invitation”.111 Upon 
receipt of this email, Ms Purcell contends that she was confused because she had not invited 
Ms O’Loughlin and when Ms Purcell sought clarification from Ms Martelli, she apologised 
for the confusion and told Ms Purcell that she thought Ms Purcell had sent the invitation to 
Ms O’Loughlin. Ms Purcell concluded that Ms Farah must have sent the invitation to Ms 
O’Loughlin.112 Ms Farah contends, however, that on 4 June 2014 she received an automatic 
message from her Outlook email advising her that Ms Purcell had forwarded the calendar 
invitation to Ms O’Loughlin.113 Ms Farah further contends that she first became aware that 
Ms O’Loughlin had been invited to the meeting, from Ms Martelli, who had access to Ms 
Farah’s emails, when Ms Martelli forwarded an email to Ms Farah from her own email 
account.114

[65] Ms Purcell alleges that during the meeting on 6 June 2014, Ms Farah told her to be 
careful about what she puts in emails because she had sent the meeting invitation to the 
Union.115 Ms Purcell claims she did not send the invitation to Ms O’Loughlin, but she did not 
argue with Ms Farah because she was unsure how Ms Farah would react.116 Ms Purcell
believed that, based on her assessment of Ms Farah’s tone of voice, she was testing Ms 
Purcell to find out what contact she had with the Union. Ms Purcell also felt that Ms Farah
was disapproving of her contact with the Union as, in the words of Ms Purcell, “she continued 
to stare at me until I dropped my gaze”.117

[66] Ms Farah’s evidence about the meeting is quite different. Ms Farah contends that
during the meeting she said to Ms Purcell, words to the effect of “We need to be careful about 
what we write in our emails” and says that this comment was made in reference to Ms 
Purcell’s email sent to all staff regarding the Recycled Goods Market and not in relation to the 
meeting invitation to Ms O’Loughlin.118 During the meeting, Ms Farah says that she 
apologised to Ms Purcell if she had offended her in her note to staff and that Ms Purcell said 
she didn’t mean anything by the comments.119 She says that she told Ms Purcell how much 
she values the VCAL program and that if there were any issues with the program, Ms Purcell
should discuss them with Ms Farah. Ms Farah also gave evidence that she told Ms Purcell that 
Ms Purcell had invited Ms O’Loughlin to the meeting and that this is why her personal 
assistant was asking whether Ms O’Loughlin was attending. She said that Ms Purcell denied 
having done so and Ms Farah did not press the issue.120

[67] According to Ms Purcell, the meeting ended on a cordial note but she was still worried 
about Ms Farah’s comment mentioned above.121 Ms Farah, likewise, was under the 
impression that the meeting ended on a positive note.122

                                               
111 Exhibit 2 at [29]; Exhibit 2, SP-10.
112 Ibid.
113 Exhibit 21 at [64]; Exhibit 21, MF-4B.
114 Ibid; Exhibit 21, MF-4C.
115 Exhibit 2 at [30].
116 Ibid.
117 Ibid.
118 Exhibit 21 at [66].
119 Ibid.
120 Ibid at [66]-[67].
121 Exhibit 2 at [30].
122 Exhibit 21 at [70].








[2016] FWC 2308

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[68] Ms Purcell contends that following the meeting, she was told by Ms O’Loughlin that 
the invitation for the meeting was sent to her by Ms Martelli.123 However, Ms Farah gave 
evidence that she received an automatic message from her Outlook email advising that Ms 
Purcell had forwarded the appointment to Ms O’Loughlin. Additionally, Ms Martelli, who 
also gave evidence in the proceedings, said that on 4 June 2014 she saw a notification in Ms 
Farah’s Outlook calendar that Ms Purcell had forwarded the invitation to Ms O’Loughlin.124

Ms Martelli also said that she sent an email to Ms Farah about that notification,125 and when 
she noticed on the following day that Ms O’Loughlin had not accepted the invitation, this led 
to an email exchange between her and Ms Purcell about whether Ms O’Loughlin would be 
attending.126 Ms O’Loughlin was in attendance during the proceedings, but did not give 
evidence.

[69] There is clearly a contest about who invited Ms O’Loughlin to the meeting on 6 June 
2014. 

[70] Ms Purcell submits that, despite Ms Farah’s insistence to the contrary,127 it was Ms 
Martelli who sent the meeting invitation to Ms O’Loughlin. She did this at 3.56pm on 3 June 
2014.128 It was the following day, in the context of discussing the meeting with Ms 
O’Loughlin, that Ms Purcell forwarded the invitation to Ms O’Loughlin.129 Ms Purcell was 
clear that she did not forward the invitation with an intention to “invite” Ms O’Loughlin, but 
merely to let her know that the meeting was on.130 Ms Purcell contended that, in the absence 
of evidence to the contrary, it should be assumed that the automatically generated “Meeting 
Forward Notification” was generated immediately upon the invitation being forwarded to Ms 
O’Loughlin. In any event, the notification was received by Ms O’Loughlin on the Tuesday (3 
June 2014).131 Ms Purcell contends that she did not invite Ms O’Loughlin to the meeting,132

and that when she forwarded the meeting notification on 4 June 2014, Ms O’Loughlin had 
already been invited by Ms Martelli on 3 June 2014.133

[71] Ms Farah submits that, consistent with Ms Martelli’s evidence, Annexure MF-4C 
includes Ms O’Loughlin only because the invitation was forwarded by Ms Purcell and that, 
by forwarding the meeting notification, Ms Purcell “invited” Ms O’Loughlin.

[72] A resolution of this contest is required only if I accept Ms Purcell’s evidence that,
during the meeting, Ms Farah told Ms Purcell to “be careful what you put in emails as (I had) 
sent the meeting invitation to the Union”.134  On this issue I prefer the evidence given by Ms 
Farah, for the following reasons: 

 On Ms Purcell’s version of events, one is required to accept the premise that Ms 
Farah invited or caused to be invited, Ms O’Loughlin, to a meeting on 6 June 2014 
and that thereafter Ms Farah not only would deny doing so, but would insist that Ms 

                                               
123 Exhibit 2 at [30].
124 Exhibit 24 at [7]; Exhibit 24, AM-1B.
125 Ibid at [8]; Exhibit 24, AM-1C.
126 Ibid at [9]; Exhibit 24, AM-1D.
127 Transcript PN5859 and following.
128 Exhibit 21, MF-4C; Transcript PN977.
129 Transcript PN996.
130 Transcript PN988 – PN996.
131 Transcript PN1044.
132 Exhibit 2 at [29].
133 Exhibit 21, MF-4C.
134 Exhibit 2 at [30].








[2016] FWC 2308

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Purcell has done so for the purpose of discovering whether Ms Purcell had contact 
with the Union.135 In my view, this is simply not a plausible premise;

 The phrase “be careful what you put in emails as you sent the meeting invitation to 
the Union”, said to have been uttered by Ms Farah, appears to me to make little 
sense since the reference to what you put in emails would suggest content of emails,
rather than the fact that a third party had been invited to a meeting. The phrase, read 
in its totality, seems to me to be disjointed and more likely the product of Ms 
Purcell’s interpretation of the words which, both parties agree, were uttered to the 
effect that Ms Purcell should be “careful what you put in emails”;

 The meeting on 6 June 2014 was convened for the purpose of discussing the email 
exchange between Ms Farah and Ms Purcell concerning the Recycled Goods Market. 
Given this context, and Ms Farah’s evidence that she said words to the effect that Ms 
Purcell should be “careful what you put in emails” and her explanation of that 
comment was a reference to the all staff email about the Recycled Goods Market,136

Ms Farah’s version is inherently more likely and credible.

[73] In these circumstances, neither the meeting nor that which occurred during the
meeting can be said to be unreasonable behaviour by Ms Farah towards Ms Purcell.

Incident Four – ICT Tech

[74] This incident in effect concerns an allegation of bullying behaviour experienced by a 
colleague of Ms Purcell. The colleague, Mr Adrian De Zordi, gave evidence during the 
proceedings in relation to his experience.137 Insofar as it is relevant to Ms Purcell’s complaints 
of bullying to which she says she has been subjected, Mr De Zordi contends that on 17 June 
2014, he spoke with Ms Purcell expressing his anxiety in attending a meeting with Ms Farah
about his impending resignation, as he had secured other employment.138 Ms Purcell and Mr 
De Zordi agreed that he would send an email to Ms Farah advising that he would like Ms 
Purcell to attend any meeting between himself and Ms Farah. Subsequently, Mr De Zordi sent 
his resignation by email to Ms Farah139 and followed this up with another email advising her 
that he would like Ms Purcell to attend any meeting.140

[75] Mr De Zordi alleges that, at 10.00pm that same night, he received an email from Ms 
Farah indicating that if he insisted on having Ms Purcell present at any meeting, then Ms 
Farah did not want to have the meeting. The text of the email was as follows:

“Adrian

If/when a Principal asks an employee to discuss his/her resignation, it is to acknowledge the 
work and contribution s/he has made to the community, to arrange termination details and to 
extend his/her best wishes. However, as your email reads that you are not comfortable to have 
a conversation with me without another staff member present, I do not see the need for this to 
occur.

                                               
135 Ibid.
136 Transcript PN3810.
137 Exhibit 7.
138 Ibid at [14]-[15]. 
139 Exhibit 7, AD-1.
140 Exhibit 7 at [15].








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To arrange termination details: Andrew will make a time with you next week to arrange return 
of iPad, keys etc. I will expect a formal letter of resignation, signed and dated, no later than 
tomorrow so that your two week’s notice is effective – this resignation letter is to be addressed 
to me and will need to be handed to Antoinette so it can be processed.

Mary”141

[76] Ms Purcell gave evidence that the next time she saw Ms Farah was on 20 June 2014 at 
a social gathering in the staffroom.142 When Ms Purcell first took a seat there was someone 
blocking her from Ms Farah’s view. However, she believes that Ms Farah pushed her chair 
back deliberately so that she had a clear view of Ms Purcell. She claims that she received 
several angry glares from Ms Farah and said that she felt very frightened. Ms Purcell felt that 
Ms Farah was angry with her because Mr De Zordi had mentioned her in his email. Ms 
Purcell’s evidence is that she has felt more targeted and very stressed ever since this point.143

[77] Ms Farah’s evidence about this incident is that she does not really remember much 
about it as it did not stand out to her as unusual at the time.144 She said that she did not hold 
Mr De Zordi’s resignation or emails against Ms Purcell and claims that, if she had an issue 
with Ms Purcell, at that time, she would have called her in for a meeting.145

[78] The way in which Ms Purcell seeks to make good the allegation that this incident 
amounted to unreasonable behaviour by Ms Farah towards Ms Purcell, is set out in the 
submissions of Ms Purcell as follows:

“46. Around 17 June 2014, Ms Purcell in her capacity as OHS Rep, received a request for 
her help from the 19 year old ICT Technician, Adrian De Zordi in respect of his 
resignation.146 Ms Farah was annoyed that Mr De Zordi was resigning, that he had not 
named Ms Farah as a referee for other employment and that he would not disclose 
where he was going to work.147 She was further annoyed that Mr De Zordi had 
confided in Ms Purcell about matters to do with his resignation and wanted Ms Purcell 
to be present at any meeting.148

47. Ms Farah expects, as a matter of courtesy and standard practice, that an employee 
resigning will meet with the Principal.149 Ms Farah takes the view that this expectation 
is very widely understood – so much so that she surmised that perhaps Mr De Zordi 
was only unaware of it because he was ‘a younger gentleman’.150 Ms Farah 
communicated this expectation to Mr De Zordi by email.151

48. Mr De Zordi’s email offers to meet and sets out times that he was available to do 
so.152 There was no reason why Ms Farah could not meet with Mr De Zordi. Ms Farah 
determined not to proceed with the meeting on the basis that Mr De Zordi had 

                                               
141 Exhibit 7, AD-2 – email from First Respondent dated 17 June 2014, 10.42pm.
142 Exhibit 2 at [38].
143 Ibid.
144 Exhibit 21 at [82].
145 Ibid.
146 Exhibit 7 at [15].
147 Ibid at [13].
148 Transcript PN3914 – PN3921.
149 Exhibit 21 at [75]; Transcript PN3897 – PN3898.
150 Transcript PN3903 – PN3905.
151 Exhibit 7, AD2.
152 Ibid.








[2016] FWC 2308

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indicated that he was ‘not comfortable to have a conversation with (her) without 
another staff member present’ and that staff member was Ms Purcell. Ms Farah was 
unable to advance any other reason for deciding not to go ahead with a meeting 
beyond repeatedly asserting that there was ‘no need’ and that she did not ‘need to 
explain why sometimes (she decides she doesn’t) need to have meetings with staff’.153

49. Ms Farah gave evidence that she felt ‘unjustly accused’ by Mr De Zordi’s advice that 
he wanted to bring another member of staff to any meeting.154

50. Ms Farah goes further and says that she ‘would have expected that, if anyone else was 
to attend the meeting, then it would be Andrew Coates…’.155 The inference is that, 
had Mr De Zordi chosen Mr Coates to accompany him, Ms Farah may have proceeded 
with the meeting. The inescapable conclusion is that Ms Farah was refusing to meet 
because the meeting would have involved Ms Purcell.

51. The fact that Ms Farah was annoyed and curious is borne out by the fact that she 
asked Mr Coates to establish Mr De Zordi’s reasons for leaving and the position he 
was going to.156 Ms Farah neglected to mention in her statement that she had asked Mr 
Coates to speak to Mr De Zordi and sought to give the impression this was on Mr 
Coates’ initiative.157 Mr Coates assertion that the approach was made because Mr De 
Zordi seemed upset’158 and was made ‘more out of concern than anything’159 is 
irreconcilable with Mr Coates own evidence that he did not ask after Mr De Zordi’s 
welfare, but asked Mr De Zordi ‘where he was off to’, called Mr De Zordi ‘silly, 
misguided and immature’ and used the term ‘couldn’t give a rat’s arse’.160 Note that in 
answer to the question from the Commission, Mr Coates began again to say that he 
had asked where Mr De Zordi was going, but stopped himself.161

52. Despite the equivocation by Ms Martelli162 and Ms Farah,163 Ms Farah was (if not 
both were) likely to be aware of Mr De Zordi’s resignation on the afternoon of 17 
June 2014.164 Ms Farah was in her office.165 The request to look at the printer was a 
device to meet with Mr De Zordi without Ms Purcell. Ms Martelli repeatedly insisted 
she had sought help from the ‘the IT Department’, but had, in fact, specifically 
directed her request to Mr De Zordi when other IT personnel were available. Mr De 
Zordi’s evidence is that this itself was exceptional.166 In any case it is not disputed that 
they were aware of Ms Purcell’s role by the following day.

53. Ms Farah did not take up any issues about this with Ms Purcell, but on 20 June 2014 
(St Aloysius Day), Ms Purcell received a number of angry glares from Ms Farah in 
the staffroom.167 This conduct was intended to convey Ms Farah’s annoyance and 
caused Ms Purcell to be very frightened. This conduct was unreasonable and 
threatening.

                                               
153 Transcript PN4247.
154 Transcript PN3921 and PN4450.
155 Exhibit 21 at [76].
156 Exhibit 7 at [18]; Exhibit 8 at [12]; Exhibit 26 at [5].
157 Exhibit 21 at [81]; Transcript PN4271 – PN4275.
158 Exhibit 26 at [4].
159 Transcript PN6168.
160 Exhibit 26 at [5]; Transcript PN6185 – PN6194.
161 Transcript PN6194.
162 Exhibit 24 at [11]-[12].
163 Exhibit 21 at [74]-[75].
164 Transcript PN5984 – PN6016.
165 Transcript PN5998.
166 Transcript PN2232 – PN2237.
167 Exhibit 2 at [38]; Transcript PN1108 – PN1113, PN1125 – PN1136.








[2016] FWC 2308

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54. Glaring at Ms Purcell in these circumstances does not constitute ‘management action’ 
and, in any event, was not reasonable, nor ‘carried out’ in a reasonable manner.”168

[79] This is, with respect, a leap in the reasoning which is not supported by the evidence or 
any inference that might be reasonably drawn from the evidence. The submission amounts to 
no more than suppositions made about motives of Ms Farah in order that they fit the case 
theory. The central supposition is that Ms Farah was annoyed that Mr De Zordi had confided 
in Ms Purcell about his resignation and had wanted Ms Purcell to be present at any meeting 
convened to discuss his resignation. Ms Farah denies that she was annoyed. Ms Purcell’s 
submission to the effect that Ms Farah’s annoyance is borne out by the fact that she had asked 
Mr Coates to try to establish Mr De Zordi’s reasons for resigning, and the position into which 
he would become employed, is rejected. It is equally, if not more likely, a plausible 
explanation that Mr Coates was deployed in order to satisfy that which would, I think, be a 
reasonable reaction by a Principal to try to establish the reason for an employee’s resignation.

[80] Neither can the subsequent discussion between Mr Coates and Mr De Zordi provide 
any foundation for the central supposition that Ms Farah was annoyed.  Ms Farah had no 
control over what was said between Mr Coates and Mr De Zordi and it is not suggested that 
she did.

[81] Furthermore, the submission that Ms Martelli’s request to Mr De Zordi to look at the 
printer was a device to meet with Mr De Zordi without Ms Purcell, is simply not made out on 
any objective view of the evidence as a whole. First, to make good the submission Ms 
Martelli would have needed to have been instructed or requested by Ms Farah to ask Mr De 
Zordi to attend. That such a request was made was denied by Ms Martelli.169 Secondly, Mr De 
Zordi’s email to Ms Farah on 17 June 2014, in which he suggested that if any meeting was 
required that he would ask Ms Purcell if she would attend, was sent at 4.01pm.170 Ms 
Martelli’s request to Mr De Zordi was sent on 17 June 2014 at 4.12pm.171 It is, in my view,
unlikely that in the 11 minutes that passed between these two emails that Ms Farah would 
have read the first email and instructed Ms Martelli to send the second email. According to 
Ms Martelli, and there is no probative evidence to the contrary, Ms Farah would not have 
been aware of any of this as she was busy with back to back appointments that afternoon.172

Thirdly, despite the submission that the request was a device to have Mr De Zordi attend the 
office of Ms Farah, the email requests no such thing. It provides as follows:

“Hi Adrian,

I need some assistance with printing booklets. Minh tried to show me on the photocopier 
downstairs but it wasn’t working. Can you please help?”173

[82] Fourthly, Ms Farah eventually responded to Mr De Zordi’s email at 10.42pm on 17 
June 2014. This is consistent with Ms Martelli’s evidence that Ms Farah was unaware of Mr 
De Zordi’s email or, of Ms Martelli’s email request for assistance at or about the time each 
was sent.

                                               
168 Applicant’s Outline of Submissions dated 19 February 2016.
169 Transcript PN 6021 – PN 6022.
170 Exhibit 7, AD 2.
171 Exhibit 24, AM–1A.
172 Exhibit 24 at [13].
173 Exhibit 24, AM–1A.








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[83] In summary, I accept Ms Farah’s evidence that she felt unjustly accused by Mr De 
Zordi’s advice in his email that he wanted to bring another person to any meeting. Whether or 
not that feeling was soundly based is beside the point. That feeling explains why Ms Farah
did not proceed with any meeting. There is an insufficient evidentiary basis, for the reasons 
discussed above, to conclude that the refusal to meet was directed at Ms Purcell.

[84] Furthermore, the suggestion that on 20 June 2014, Ms Purcell received a number of 
angry glares from Ms Farah in the staff social gathering and that this conduct was intended to 
convey Ms Farah’s annoyance about her involvement with Mr De Zordi (discussed above) is 
not supported by anything more than Ms Purcell’s perception, and the conclusion based on 
her perception of Ms Farah’s demeanour, that it must have been motivated by the earlier 
incident.

[85] Having had the benefit of observing Ms Farah while she gave evidence and in the 
court more generally, I have little doubt that Ms Farah’s gaze at another person might be 
construed as glaring. It seems to me, based on those observations, that it is in Ms Farah’s 
nature and make up that her facial expressions have the unfortunate consequence that they 
might be interpreted by others as glaring. However, it is one thing to suggest that Ms Farah
looked at Ms Purcell during a staff social gathering in a manner that might be construed as 
glaring, it is quite another to attach a particular motivation to a facial expression, which based 
on my, albeit unqualified, observations of Ms Farah, is likely to be the result of unconscious 
rather than conscious factors. The connection is not made out, and in the circumstances, even 
if the glaring occurred in the manner suggested by Ms Purcell, I am not persuaded that it 
amounted to unreasonable behaviour directed towards Ms Purcell.

Incident Five – Staff Meeting and General

[86] The first of the incidents falling under this general heading is said to have occurred at 
a staff meeting held on 23 June 2014 at which Ms Purcell and Ms Farah were in attendance. 
Ms Purcell gave evidence that Ms Farah turned and glared at her when she was leaving the 
meeting. She contends that a colleague noticed and later asked her whether Ms Farah was 
glaring at her. Ms Purcell says that she felt very intimidated and singled out.174 Ms Farah’s 
evidence about this incident was that she does not glare at staff and that she does not 
remember looking at Ms Purcell on this occasion.175

[87] Ms Purcell further contends that from this time on, she “experienced regular 
expressions of hostility”176 from Ms Farah. Ms Purcell refers to a number of occasions where 
she felt that Ms Farah would position herself in a room specifically so that she could stare at 
Ms Purcell and glare at her when she made eye contact. Ms Purcell contends that when, on the 
occasions, Ms Farah glared at her, Ms Purcell would turn away and that she felt apprehensive 
and isolated. She also said, that on a number of occasions, Ms Farah would turn her back 
when she walked into the room and that Ms Farah would greet others around her, but ignore 
Ms Purcell. Ms Purcell contends that there were only three occasions in 2014, following this 
incident, when Ms Farah spoke to her and that, on each of these occasions, she was 
accompanied by a member of the leadership team.177

                                               
174 Exhibit 2 at [39].
175 Exhibit 21 at [84].
176 Exhibit 2 at [40].
177 Ibid at [40]-[42].








[2016] FWC 2308

32

[88] Without wishing to diminish Ms Purcell’s feelings of apprehension brought about by 
her perception of Ms Farah’s stares and glares, to which she says she was subjected, I am not 
persuaded there is a sufficient evidentiary basis from which it can be concluded that the 
conduct (glaring and ignoring) occurred as alleged. As I have earlier observed, I can well 
understand how a perception of glaring might arise given my observations of Ms Farah, but 
such a perception, even when accompanied by Ms Purcell’s description of her view as to the 
difference between glaring and staring, remains a perception only.178 Such corroboration as is 
offered by, for example, Ms Asha Jacob, is in the form of generalised and non-specific 
observations: 

“18. Sue repeatedly told me that school was becoming more stressful, difficult and an 
unpleasant place for her. I repeatedly witnessed Mary not acknowledging Sue and 
turning her back on her. I witnessed Mary isolating Sue during 2014, in particular, 
during recess or lunch. Mary would often enter the staff room greeting various staff 
and conspicuously ignore Sue.

19. On occasion, I have also witnessed Mary cast ‘glares’ at Sue during staff briefings.”179

[89] As Ms Jacobs conceded, little by way of specific examples or instances were offered 
by her.180

[90] Moreover, there is a degree of commonality, travelling beyond a common but 
independent recollection, between Ms Jacobs’ statement and that of Ms Purcell. For example, 
Ms Jacobs says “Mary would often enter the staffroom greeting various staff and
‘conspicuously’ ignore Sue”.181

[91] Ms Purcell’s evidence was that “it was very conspicuous when she does it in the 
staffroom…”.182

[92] The reference in each statement to “conspicuously” and “conspicuous” is firstly a 
subjective evaluation, and suggestive of a deliberate strategy on the part of Ms Farah.183

Secondly, it strikes me as unlikely the two people would independently have come to a 
subjective evaluation that particular conduct (or in this case an omission) was undertaken 
conspicuously. It seems to me clear, that at least some discussions about these allegations 
occurred between Ms Jacobs and Ms Purcell,184 the effect of which is to render unreliable the 
generalised corroborative evidence of Ms Jacobs.

[93] Moreover, that individual perceptions about stares and glares are by themselves an 
unreliable foundation from which to infer or conclude the conduct occurred, much less that is 
unreasonable, is underscored by the following evidence given by Ms Purcell and by Ms 
Renee Schulberg about the same incident or series of incidents. Ms Purcell gave evidence 
that:

                                               
178 Transcript PN1125 – PN1136.
179 Exhibit 13 at [18] – [19].
180 Transcript PN2674 – PN2678.
181 Exhibit 2 at [41].
182 Ibid.
183 See Transcript PN2677.
184 See Transcript PN2675.








[2016] FWC 2308

33

“40. From this time on I experienced regular expressions of hostility from Mary. If I was 
sitting in the staffroom during morning briefings, she would position herself so she 
could stare at me and when I made eye contact she would glare back at me. I recall 
one morning briefing in particular in November. Mary glared and I turned away. The 
second time she glared I put my bag on the table. My Red bag had text on it in large 
letters saying ‘Humanity Australia’ The letters were big enough for Mary to read from 
where she was. I do not know if the words on the bag caused Mary to do so, but she 
quickly turned away. I felt very apprehensive and isolated. Other staff members 
(including Renee Schulberg and Asha Jacob) have commented on her glaring at me 
during some of these briefings.”185

[94] Ms Schulberg says:

“24. I regularly witnessed Mary placing herself in the staffroom in such a place as she 
would have a clear view of me and, at the same time, of Sue Purcell. This happened 
on at most of these meetings in the second half of 2014 which Mary attended. It was 
extremely obvious that we were the targets of her anger and she was apparently happy 
for all the people at the meetings to know this. In fact, other staff noticed that she was 
glaring at me or Susan. After one such meeting I remember asking another member of 
staff whether she had noticed Mary glaring at me and they agreed that she was.”186

[95] Both statements are replete with generalisations and suggestive perceptions of motive.
For example Ms Purcell’s suggestion that eye contact from her “caused” Ms Farah to “glare 
back” simply underscores the subjective nature of this kind of evidence. Similarly, Ms 
Purcell’s evidence that the words “Humanity Australia” written on a red bag which Ms 
Purcell placed on the table, might have caused Ms Farah to “quickly turn away” after one of 
the episodes of glaring, is not probative evidence but rather, is opinion based on a subjective 
perception of conduct in search of motive, to explain conduct. It is not, with respect, rational
or reasoning.

[96] I agree with the submissions of Ms Farah that these allegations are vague, and the 
evidentiary basis upon which the allegations are said to have foundation, is simply insufficient 
to establish that the conduct occurred, much less that it was unreasonable.

Incident Six – OH&S Committee

[97] The alleged incident is said to have occurred on 24 June 2014 when the OH&S 
Committee held a meeting in Ms Farah’s office. The Business Manager at the time, Mr 
Coates had, according to Ms Purcell, told the Committee Members to hold the meeting in Ms 
Farah’s office.187

[98] The evidence given by Ms Purcell was that halfway through the meeting, Ms Farah
stormed into her office with her fists clenched, glanced around at everyone and glared at Ms 
Purcell. Ms Farah is said to have turned to Mr Coates and asked “what is going on?”.188 Ms 
Purcell alleges that after Mr Coates told Ms Farah that it was an OH&S meeting, Ms Farah
folded her arms, turned to Ms Purcell and angrily replied, “well you have to leave now”.189

Ms Purcell said that Ms Farah’s tone was very aggressive and that Ms Farah “directed her 

                                               
185 Exhibit 2 at [40].
186 Exhibit 9 at [24].
187 Exhibit 2 at [43].
188 Ibid.
189 Ibid.








[2016] FWC 2308

34

command at me”.190 Ms Purcell contends that she felt humiliated and afraid by this 
incident.191

[99] The OH&S Committee meeting thereafter continued in another room.192

[100] Ms Farah contends that, upon returning from a visit to a nearby primary school, she 
was startled to discover Mr Coates, Ms Purcell and the other two members of the OH&S 
Committee sitting in her office. Furthermore, she contended that she was particularly startled 
because the layout of her office meant that they were obscured from her view until she was 
already in the office.193 Ms Farah pointed out that there are a number of meeting rooms 
available for staff to use throughout the school and that no one, other than Ms Farah herself, 
has meetings in her office because of the confidential nature of documents kept in her office. 
She also noted that no one had sought permission to use her office on this day.194

[101] Ms Farah’s evidence was that, upon seeing the group in her office she “immediately 
focused her attention on Andrew. Andrew was the most senior person…and I knew he was 
the only person at the table who had a key…I assumed he had let them all in”.195 Upon being 
informed by Mr Coates that the Committee were holding an OH&S meeting in her office 
because the boardroom was being used, Ms Farah contends that she asked them to find 
another location and that she directed her comments to Mr Coates in particular.196

[102] Ms Farah conceded, during oral evidence, that not only was she slightly irritated as 
stated in her witness statement,197 but she was also annoyed.198 She maintained, however, that 
she did not believe she was aggressive or hostile, although she acknowledged that when she 
asked the members of the Committee to leave she did so firmly.199 In her witness statement, 
Ms Farah said that she “would not have clenched (her) hands or crossed (her) arms at the time 
because (she) would have been holding (her) handbag…”.200 Ms Farah claims that she did not 
pay attention to Ms Purcell or anyone other than Mr Coates because he was the only one in 
the OH&S Committee with keys to her office.201 Moreover, Ms Farah gave evidence that 
while Ms Purcell and others might have perceived that she had clenched her fists, she was 
“100 percent positive” that she did not, nor was it the case that she might have done so, or 
was not aware of doing so.202

[103] As to the issue of “clenched fists”, Ms Farah gave a demonstration of something she 
does when she is stressed,203 which according to my recollection of the demonstration,
involved Ms Farah keeping her hands by her side and closing her fingers. She said that at the 
same time she would take a deep breath.204 Ms Farah also demonstrated that her view of 
clenched fists involved raising her arms and making a fist with each hand.

                                               
190 Ibid.
191 Ibid.
192 Transcript PN1165.
193 Exhibit 21 at [88]-[90].
194 Ibid at [91].
195 Ibid at [92].
196 Ibid at [93].
197 Ibid at [94].
198 Transcript PN4361 – PN4362.
199 Transcript PN4364.
200 Exhibit 21 at [94].
201 Ibid.
202 Transcript PN4365 – PN4369.
203 Transcript PN4391 – PN4396.
204 Transcript PN4395.








[2016] FWC 2308

35

[104] This is perhaps a distinction without a difference, but I accept Ms Farah’s explanation 
as to her habit in response to stress. Given this, it also seems to explain why others might 
perceive such a gesture as an expression of anger, frustration and even a source of fear in the 
workplace. I would expect therefore, Ms Farah, now armed with knowledge of the potential 
effect of her gesture on others, to take some positive steps to address her responses to stressful 
situations.

[105] That said, it is not disputed that Ms Farah was unaware that her office was being used 
for a meeting, that prior permission had not been sought and that she was taken by surprise 
when she entered her office to find it occupied by a group of people.

[106] That Ms Farah would be annoyed, seems to me to be unremarkable. I do not accept 
that Ms Farah singled out Ms Purcell by her sternly delivered comment that the members 
should leave, though I can well understand that any person present might consider such a 
comment as one directed to them personally. Ultimately, there was a gathering of people in 
Ms Farah’s office without her permission or knowledge. Would it have been better to have 
asked the members to leave politely? Yes of course. Was it unreasonable in the circumstances 
for Ms Farah to be annoyed and to state firmly, and even invoking Ms Farah’s stressful 
situations response, to tell members they must leave? Not in my opinion.

[107] I agree with the submissions of Ms Farah that inconsistencies in some of the evidence 
about particular matters given by Mr Coates and Mr Borg amounts to no more than 
inconsistencies about trivial matters, and consequently do not alter my assessment of the 
conduct alleged, viewed in the circumstances in which it occurred. Moreover, that Ms Farah 
may have been looking at Ms Purcell when she said “You’ll need to get out”,205 does not 
result in the conduct being directed towards Ms Purcell. It is not suggested that by those 
words Ms Farah wanted only Ms Purcell to leave. Ms Farah was annoyed, with some 
justification, that a group of uninvited people were using her office and she wanted them all to 
leave. Ms Farah conveyed that desire in a firm manner. That everyone else who was present 
understood the statement uttered to be a direction that they should all leave is evident by their 
subsequent conduct in leaving the office. The evidence does not establish that this is conduct 
by Ms Farah towards Ms Purcell, nor that it was unreasonable in the circumstances.

Incident Seven – Staff Association and farewell for Pamela Zaharias

[108] Ms Purcell was a member of a Staff Association that operated at the College. She gave 
evidence that a member of the Staff Association usually farewells a member of staff who is
leaving and, so when she learned, on 26 June 2014, that a colleague, Ms Pamela Zaharias, had 
resigned, she sent an email to the President of the Staff Association informing her of Ms 
Zaharias’ resignation and asking whether they should do something. Ms Purcell did not 
receive a reply to the email and so she asked Ms Renee Schulberg, a friend of Ms Zaharias, to 
make a quick speech and give her a card the following day.206

[109] Ms Purcell contends that, at about 1.00pm on 27 June 2014, Ms Farah communicated 
Ms Zaharias’ resignation to all staff in her weekly bulletin. About half an hour later, at a staff 
lunch, Ms Schulberg gave a short speech and Ms Purcell’s evidence is that, during the speech, 

                                               
205 Transcript PN6131 – PN6133.
206 Exhibit 2 at [45]-[46].








[2016] FWC 2308

36

Ms Farah made her way to the back of the room and spoke quite loudly to a caterer.207 The 
words uttered by Ms Farah were to the effect of “I cannot believe this”.208 Ms Farah then 
immediately stood directly behind the chair on which Ms Purcell was sitting and placed her 
hand on the back of it. Ms Purcell says that she felt quite apprehensive and anxious about this 
because of the alleged recent aggressive behaviour of Ms Farah towards her.209

[110] Ms Schulberg was called to Ms Farah’s office after giving the speech and was told by 
Ms Farah that she should not have given the speech. It is not in dispute that Ms Farah was 
angry at Ms Schulberg, that she asked Ms Schulberg who else was involved and that Ms 
Schulberg disclosed Ms Purcell by name.210 It is also not in dispute that Ms Schulberg 
apologised to Ms Farah.211 Ms Schulberg returned to the staffroom very upset because Ms 
Farah was angry and told Ms Purcell that Ms Farah had told her to stay away from Ms Purcell
and some others because they were trouble. Ms Purcell contends that she felt threatened by 
this news.212

[111] A good deal of evidence was given about who had a role in giving farewell speeches 
and the past practice in this regard.213 But for reasons that will shortly become apparent 
nothing turns on this. 

[112] Ms Purcell seeks to attribute Ms Farah’s conduct during her meeting with Ms 
Schulberg as conduct directed towards Ms Purcell, principally because it is said that Ms Farah
might have expected Ms Schulberg to convey Ms Farah’s anger to Ms Purcell. This is evident 
from the following extract of Ms Purcell’s outline of submissions: 

“67. Ms Farah communicated her dislike for Ms Purcell and made disparaging remarks about 
her (‘they’re trouble’) and warned Ms Schulberg not to ‘get in with that particular group of 
staff’. Ms Schulberg returned to the staffroom and conveyed Ms Farah’s anger to Ms 
Purcell,214 as Ms Farah might have expected she would do. Ms Farah did not raise any concern 
with Ms Purcell directly215 but had effectively conveyed her anger towards, and dislike of Ms 
Purcell to Ms Schulberg, and to Ms Purcell through Ms Schulberg. This conduct was 
unreasonable, threatening and caused Ms Purcell to feel targeted and isolated.”216

[113] That this was, or might have been, the expectation of Ms Farah is not only 
unsupported by the evidence, but directly contrary to it. To begin with, Ms Schulberg gave 
evidence that she was told by Ms Farah not to discuss their meeting with anyone but did so 
nonetheless as is evident below: 

“Yes. Just say what you want to say in relation to it?---Just elaborate. Yes. So Susan approached 
me at my desk after the meeting. I was told I wasn't allowed to talk about what was discussed 
in this meeting by Mary. And I was not okay after this meeting. I was crying and very, very 
anxious and very, very overwhelmed, and I obviously felt like I couldn't talk to anybody, but I 
know that Sue was mentioned in that meeting, and I felt that she had a right to know that she 

                                               
207 Exhibit 2 at [48].
208 Transcript PN4945 – PN4946.
209 Exhibit 2 at [49]; Transcript PN1207.
210 Exhibit 9 at [10]; Transcript PN4857 – PN4858; PN4875 – PN4879.
211 Exhibit 9 at [10]; Transcript PN4873.
212 Exhibit 2 at [50]-[51].
213 For example: Exhibit 21 at [100] – [101]; Exhibit 2 at [46]; Exhibit 3 at [30]; Exhibit 19 at [9]; Exhibit 10 at [6]; Exhibit 2 
at [107]; Exhibit 13 at [10]; Transcript PN1174 – PN7173; PN1190; PN2602; PN2612; Exhibit 15; Exhibit 23.
214 Transcript PN2282; PN1195.
215 Exhibit 21 at [109].
216 Applicant’s Outline of Submissions at [67].








[2016] FWC 2308

37

was mentioned in that meeting. And that Mary was very unhappy with her in that meeting, so I 
did mention that to Sue, at that stage, and no other content of that meeting was mentioned at 
that time.”217

[114] Moreover, the suggestion that Ms Farah might have expected Ms Schulberg to speak 
to Ms Purcell about the meeting or that which was said during the meeting relating to Ms 
Purcell was not directly put to Ms Farah and seems contrary to the line of cross-examination 
that was pursued as is clear below:

“She also told me, ‘Do not mention this conversation to anyone. This is between you and me.’

Do you remember that part of the conversation?---I actually - yes, I did say that to her. I said 
to her there's no need to discuss this any further because I was going to speak to Elaine Kent.

It was more than just no need to mention it any further, wasn't it?---I can't remember my exact 
words.

Well, you say - you said a moment ago you do remember this part of the conversation where 
she says:

She also told me, ‘Do not mention this conversation to anyone. This is between you and me.’

Do you remember that?---I can't remember the exact words but on these lines perhaps, yes.

That's a direction to an employee not to talk about a conversation, isn't it?---I couldn't stop her 
if she wants to talk about it.

Well, you can direct her to, you're her manager, aren't you?---Yes, but I've been directing them 
obviously through lots of things here but they haven't been following either.

Well, it may be that it was your direction that she doesn't follow. But did you issue the 
direction is the question?---As I said to you, I would have said to her there's no need to discuss 
this any further, but I can't remember the exact words.

So you say you didn't direct her not to speak with people about this?---I said to you I would 
have said to her, no need to talk about it, but I can't remember my exact words.

So all you said to her was there no need to discuss it?---I said to her - I said to you this was 
basically the content of my statement to her, but I can't remember my exact words.

So was - you can't remember your exact words. Was the import of your words, "Don't worry 
about discussing this with anyone else" or was it, "Don't discuss it with anybody else"?---I 
can't remember but I'm being honest and I'm telling you my words would have been on the 
line, there's no need to talk about it.

Well, that would have been a strange thing to say, wouldn't it?---Not necessarily because 
really you don't want to create more friction between the staff and everything else. It 
happened, we're moving on, and we will just sort it out. There's no need to fuel it and make it 
into gossip.

                                               
217 Transcript PN2282.








[2016] FWC 2308

38

Well, that's different though, isn't it? If you're asking her not to fuel it, then you would ask her 
not to speak to people, not direct her not to speak to people?---I made the statement for it and 
I'm - I don't know what I said, I can't remember what I said. I stick by my statement.

Thank you.”218

[115] The connection advanced by the Applicant is simply not made out. Moreover, when 
combined with the undisputed fact that Ms Farah took no step to raise the matter with Ms 
Purcell,219 the evidence does not support any finding that Ms Farah’s conduct during the 
meeting with Ms Schulberg was conduct towards Ms Purcell. That said, whilst it might have 
been appropriate to have a discussion with Ms Schulberg about the farewell, on no account 
can it be said that the nature of the exchange, angry as it was, was reasonable.

[116] There is a further aspect of the incident involving the farewell of a staff member in 
relation to which complaint is made. After Ms Farah had made the audible comment “I cannot 
believe this” to the caterer, it was said that Ms Farah stood directly behind Ms Purcell and 
placed her hand on the back of the chair on which Ms Purcell was sitting, and that this had 
made Ms Purcell quite anxious because of that which, Ms Purcell says, had been recent 
aggressive behaviour towards her.220 Ms Farah does not remember putting a hand on the back 
of the chair occupied by Ms Purcell or, for that matter, where Ms Purcell was sitting.221 Taken 
at face value, and putting to one side Ms Purcell’s feelings of apprehension and anxiety and 
the reasons she attributes for that apprehension, the actions of Ms Farah in placing a hand on 
the back of the chair occupied by Ms Purcell can hardly be described as unreasonable 
behaviour. The evidence on this issue does not support a finding that there was unreasonable 
behaviour by Ms Farah towards Ms Purcell. Furthermore, for the reasons given above, the 
attempt by Ms Purcell in her submissions to combine the chair incident with the content of the 
meeting between Ms Farah and Ms Schulberg, must be rejected.

Incident Eight – Annual Review Meeting

[117] Mercy Education conducts Annual Review Meetings (ARM) every year for staff, 
including both teaching and non-teaching staff. ARM’s are dealt with in the Victorian
Catholic Education Multi-Enterprise Agreement 2013 (Agreement) which applied to Mercy 
Education and Ms Purcell during the relevant period. The evidence of Ms Farah was that each 
ARM is typically conducted by two members of the leadership team and that she does not 
conduct all of them. Ms Farah indicated that Ms Theresa Daunt was chosen to lead Ms 
Purcell’s ARM because she could discuss her teaching, and Mr Coates, the Business 
Manager, was chosen as the second member of the leadership team because of his contact 
with Ms Purcell through the OH&S Committee. Ms Farah asserted that it did not occur to her 
at the time that Ms Purcell might be offended by this decision.222

[118] On 25 June 2014, Ms Farah sent an email to staff about the ARM process, inviting 
staff to indicate whether they wanted her to conduct their ARM.223 On 28 July 2014, Ms 
Farah received an email from Ms Purcell questioning the reasons for Mr Coates’ presence in 

                                               
218 Transcript PN4923 – PN4937.
219 Exhibit 21 at [109].
220 Exhibit 2 at [49].
221 Transcript PN4948 – PN4955; Final Outline of Submissions of Mary Farah at [54].
222 Exhibit 21 at [121]-[123].
223 Exhibit 21, MF-7A.








[2016] FWC 2308

39

her ARM.224 According to Ms Farah, an email exchange between Ms Purcell and Ms Farah
followed, in which it was agreed that Ms Farah would conduct Ms Purcell’s ARM, rather than 
Mr Coates.225

[119] Ms Purcell’s belief is that, in appointing Mr Coates to conduct her ARM, Ms Farah
was singling her out because Mr Coates was not a teacher and because she, Ms Purcell, was 
the only member of the teaching staff to have Mr Coates appointed to conduct her ARM.226

Ms Purcell referred to encounters she had had with Mr Coates in which she had been 
intimidated by him and submitted that she raised her concern about the decision to appoint Mr 
Coates with Ms Farah. Ms Purcell was not happy with Ms Farah’s explanation and felt that it 
was very unfair. She says that she was afraid and stressed because of Mr Coates’ apparent 
reputation to be verbally aggressive.227

[120] Ms Purcell said that she contacted the Union and sent a letter to Ms Farah questioning 
the decision to appoint Mr Coates.228 According to Ms Purcell, upon receipt of this letter, Ms 
Farah offered to personally conduct her ARM. Ms Purcell contended that although she felt
apprehensive and uneasy about Ms Farah conducting her ARM, she was too afraid to ask for 
another member of the leadership team.229

[121] Evidence was given by Ms Loretta Cotter, the Deputy Secretary of the Union. 
Essentially, Ms Cotter’s evidence was that, in her roles as both a teacher and Union official, 
she had never encountered a situation where a business manager conducted the ARM of a 
teacher. She maintained this throughout cross-examination and although the business manager 
did not, in the end, conduct Ms Purcell’s ARM, Ms Cotter gave a clear indication that this is 
unusual in her experience and that it raised concern for her.230

[122] The differences in the accounts of the exchanges between Ms Purcell and Ms Farah
are marginal. The gravamen of the dispute is the decision to nominate Mr Coates to 
participate in the first place (there being no dispute that he did not participate), and whether 
that decision was unreasonable. There can be no dispute that the decision was conduct or 
behaviour which was directed towards Ms Purcell.

[123] Ultimately, I have come to the conclusion that the decision was unreasonable for the 
following reasons:

 Mr Coates is not a trained teacher;

 Ms Purcell had had recent “unpleasant dealings” with Mr Coates and this was known 
to Ms Farah;231

 Mr Coates was only allocated to conduct Ms Purcell’s ARM and was not allocated to 
conduct any other teacher’s ARM in 2014 or at any other time;232

                                               
224 Exhibit 21, MF-7B.
225 Exhibit 21, MF-7B.
226 Exhibit 2 at [56].
227 Ibid at [58]-[62].
228 Ibid at [64]; Exhibit 2, SP-15.
229 Exhibit 2 at [65].
230 See Exhibit 1 at [4]-[12]; Transcript PN94 – PN125; Transcript PN189.
231 Transcript PN1281; PN5204; PN5208; Exhibit 11 at [19].
232 Transcript PN5252 – PN5256 (note that at PN5256, the second sentence of transcript should read “it was the only one to 
which he was ever assigned?”).








[2016] FWC 2308

40

 There were a number of logical alternatives (such as other members of leadership 
who conducted other teachers’ ARM’s);233

 Before starting at the College, Mr Coates had no background in education;234

 Not only is Mr Coates not well versed in AITSL Standards as suggested by Ms 
Farah, he does not know what AITSL Standards are;235

 Mr Coates had never before been assigned to conduct or participate in an ARM for a 
teacher;236

 Ms Farah did not convey to Mr Coates that Ms Daunt would lead Ms Purcell’s 
ARM,237 nor is there any evidence that this was communicated to Ms Purcell when 
the decision to involve Mr Coates was communicated;

 The suggestion that Mr Coates was selected in part because he could comment on 
Ms Purcell’s role as an OH&S Representative is, with respect, errant nonsense. An 
OH&S Representative is elected by employees of a designated workgroup and the 
representative has such functions and powers as are conferred by the Occupational 
Health and Safety Act 2004. The discharge of such functions are not within the 
purview of an employer to review in the context of an ARM; and

 In fact, during Ms Purcell’s ARM there was no specific discussion about Ms 
Purcell’s OH&S Representative role.238

[124] Moreover, Ms Farah’s various justifications for assigning Mr Coates to Ms Purcell’s 
ARM, none of which stand up to scrutiny, serves only to underscore the unreasonable nature 
of the decision. These included:

 Mr Coates was “well versed in AITSL Standards”,239 (but then that Ms Daunt was 
jointly assigned to “lead the ARM” and to “discuss (Ms Purcell’s) teaching”240). As 
discussed above, Mr Coates was clearly not well versed in AITSL standards;

 Ms Purcell could “leverage off his industry expertise”,241 but Mr Coates, whose 
expertise is primarily in business management,242 was not asked to conduct the 
ARM’s for Accounting or Business Management teachers.243 Ms Purcell taught year 
8 students English;244

                                               
233 Applicant’s Outline of Submissions at [79].
234 Transcript PN6163.
235 Transcript PN6260.
236 Transcript PN6264 – PN6265.
237 Transcript PN6276 – PN6281.
238 Transcript PN6968 – PN6969.
239 Exhibit 21, MF-7B; Transcript PN5238.
240 Exhibit 21 at [123].
241 Exhibit 21, MF-7B.
242 Exhibit 26 at [1]; Transcript PN6162 – PN6163.
243 Transcript PN5252 – PN5256.
244 Transcript PN1593; PN5779.








[2016] FWC 2308

41

 Ms Farah wanted Mr Coates to “have the experience” of conducting teacher ARM’s 
but had not assigned him to any other teacher ARM in either 2014 or 2015;245

 Ms Farah thought that Mr Coates and Ms Purcell had a “good relationship” and that 
this would make for a “relaxing atmosphere”246 despite accepting that they had 
recent differences.247 When pressed and unable to provide any basis for her view that 
they had a “good relationship”, Ms Farah asserted that a “professional relationship is 
a good relationship”;248 and

 Ms Farah said that Mr Coates could offer comment in relation to OH&S, but, in 
addition to my earlier observations, Ms Purcell’s role as OH&S Representative is a 
volunteer elected role. While there is no apparent prohibition on such volunteer 
activities being mentioned in an ARM, the OH&S Representative role is not part of 
Ms Purcell’s role as a teacher and there is no place for reviewing an OH&S role in 
the ARM. An ARM is to review teaching practices249 and is required to “focus on 
affirming achievements and suggesting avenues for professional development…in 
accordance with AITSL standards…”.250 Moreover, the ex post facto nature of this 
justification is clearly disclosed by the fact that once the ARM proceeded, no 
mention was made of OH&S and OH&S was not mentioned in the minutes of the 
meeting.251

[125] Though the decision by Ms Farah to allocate Mr Coates to participate in Ms Purcell’s 
ARM was doubtless “management action”, for the reasons given above it was not reasonable. 
It seems to me that there was no evident or intelligible justification for the decision to assign 
Mr Coates to participate in Ms Purcell’s ARM.

[126] That said, the impact of the original decision is mitigated by the fact that, once 
objection was taken, the decision was reversed and Mr Coates did not ultimately participate in 
Ms Purcell’s ARM.

Incident Nine – ARM Outcome

[127] Ms Purcell’s ARM was conducted on 5 August 2014 by Ms Farah and Ms Daunt. Ms 
Farah’s evidence was that, other than a few small issues, she thought Ms Purcell’s ARM was 
positive.252

[128] Ms Purcell contends that Ms Farah “picked on several trivial things” including:

“ questioning why I had participated in the Salvation Army Red Shield Appeal with students 
as it was not a Catholic organisation; (the words Salvation Army are highlighted in yellow 
on her copy of my ARM)

 telling me I should not use the term ‘students with issues’ – it should be ‘students with 
difficulties’; (the words ‘students with issues’ are highlighted in yellow on her copy of my 
ARM)

                                               
245 Transcript PN5211 – PN5213; PN5252 – PN5256.
246 Transcript PN5201.
247 Transcript PN5204.
248 Transcript PN5207 – PN5209.
249 Transcript PN1279.
250 Victorian Catholic Education Multi-Enterprise Agreement 2013, clause 24.1(a).
251 Transcript PN6965 – PN6969.
252 Exhibit 21 at [129]-[130].








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 making a vague comment about needing to ‘work on communication’ but with no 
explanation or examples. She told me if I have a problem communicating with her I should 
communicate with Therese Daunt – the other staff member who attending the ARM. I 
replied that I did not have a problem communicating with her.”253

[129] Ms Farah also informed Ms Purcell that she would not be teaching any VCAL subjects 
in 2015 because she was taking LSL.254 Ms Purcell felt that she received no positive feedback 
from Ms Farah during her ARM, other than a brief comment on the Recycled Goods Market 
and she was very upset by this. She gave evidence that she never received the last page of her 
ARM which provides feedback from Ms Farah and allows the staff member to read and sign 
it. Ms Purcell had received this last page in previous years. Copies of her 2013 and 2014 
ARM’s were attached to her witness statement.255

[130] Ms Farah gave evidence that Ms Purcell mentioned raising money for the Salvation 
Army during the ARM and that this led her to “suggesting that next year Susan should 
consider raising money for the Mercy institution because the College is a Mercy Education 
and Catholic school, and so we should direct our fundraising efforts accordingly”.256 Ms 
Farah conceded that she was irritated because Ms Purcell was answering her questions with 
“Yes, Mary” or “No, Mary” and that she asked her stop.257 It was, she said, at this point that 
she told Ms Purcell that they needed to work on their communication.258

[131] Ms Farah denies being angry with Ms Purcell at any point during the ARM and 
apologised if Ms Purcell thought she was. Ms Farah claimed that she did not glare at Ms 
Purcell but conceded that she “would have” looked at her intently while listening to her 
answers.259 Ms Farah said that Mercy Education did not give staff member’s formal 
confirmation of their ARM outcomes due to being short-staffed in 2014. She indicated that, 
following appointment of the new Deputy Principal, however, meetings were arranged with 
all staff members early in 2015 to review and update the 2014 ARM outcomes and that, 
apparently, this was not possible in the case of Ms Purcell because she was on LSL. She 
understood that the new Deputy Principal intended to meet with Ms Purcell upon her return 
from LSL but that this was “put aside” when Ms Purcell disputed the Deputy Principal’s 
handling of her return to work after LSL.260

[132] Ms Daunt took notes during Ms Purcell’s ARM.261 Ms Purcell’s ARM was opened by 
Ms Farah, and Ms Daunt thought that Ms Farah was positive and light in her approach. Ms 
Daunt believed that Ms Farah had initially congratulated Ms Purcell on the work she had 
completed throughout the year.262 Ms Purcell says that she did not receive any positive 
feedback other than the brief comment on the Recycled Goods Market.263

[133] Ms Farah set out her recollection of the ARM as follows:

                                               
253 Exhibit 2 at [66].
254 Ibid at [67].
255 Ibid at [68]; Exhibit 2, SP-16.
256 Exhibit 21 at [130(c)].
257 Transcript PN5283 – PN5287.
258 Exhibit 21 at [131].
259 Ibid at [133].
260 Ibid at [134].
261 Exhibit 2, SP–16.
262 Exhibit 33 at [15].
263 Exhibit 2 at [68].








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“130. Aside from a few small issues, I thought Susan’s Annual Review Meeting was 
positive. I largely followed the same pattern I follow for all Annual Review Meetings: 

(a) I congratulated Susan on her achievements during the year, including all the work 
that she does as part of the VCAL Program and all of the extra time she spends 
with her students. I also thanked her for her commitment to the College.

(b) I then asked Susan for her highlights for the year. Susan mentioned the Recycled 
Goods Market, the huddle program, and how much money the VCAL Program had 
raised and who they gave it to.

(c) It was at this point that Susan mentioned raising money for the Salvation Army 
Red Shield Appeal. This led me to suggesting that next year Susan should consider 
raising monies for a Mercy institution because the College is a Mercy Education 
and Catholic school, and so we should direct our fundraising efforts accordingly.

(d) I asked Susan about her students’ IT skills. Susan gave me some examples. At one 
point, Susan mentioned having a student with ‘issues’. It was at this point that I 
said in reply, ‘We don’t have students with issues, we have students with 
difficulties’. I said this because I don’t like describing students as having ‘issues’. I 
find it disrespectful to the students.

(e) I asked Susan how the girls in the VCAL program are going generally. She gave 
me a reply but I cannot remember it now.”264

[134] Ms Farah suggested in her oral evidence that Ms Daunt’s notes, to which reference 
was made above, perhaps did not capture the totality of the discussion at the meeting and that 
Ms Farah had had other notes taken by her, or perhaps by Ms Daunt, but in any event, these 
were not produced in the proceedings.265 Ms Farah’s evidence in this regard was, with respect, 
rather confused and, in my view, wholly unreliable. Ultimately, I accept Ms Purcell’s 
evidence that, during the ARM Ms Purcell was not given any positive feedback. The best 
record of that which was discussed during Ms Purcell’s ARM are the notes taken by Ms 
Daunt. Those notes do not reflect any positive feedback. One would expect a record of an 
ARM to record positive feedback if it were given, after all this is a document which is 
ultimately kept on an employee’s file as one of the indicators of performance. Moreover, I 
also accept Ms Purcell’s description of the ARM insofar as she says that Ms Farah “picked on 
several trivial things”. That Ms Farah chose to discuss the Salvation Army door knock as part 
of the social justice activities in an ARM seems to me to be very trivial.

[135] In my view, the conduct of Ms Purcell’s ARM was less than satisfactory. It was of 
short duration266 and does not appear to have given adequate attention to the various matters 
that were set out by Ms Purcell in the self-assessment parts of the ARM document.267 That 
said, I am not satisfied that the conduct or outcome of the ARM amounted to unreasonable 
behaviour. It was doubtless a very poor example of anything verging on best practice. That 
trivial matters were discussed, that positive performance was generally not given, or that more 
substantive matters were not addressed, does not in my view change the character of that 
which was undoubtedly a poorly executed ARM, into unreasonable behaviour.

                                               
264 Exhibit 21 at [130].
265 See Transcript PN5264 – PN5273.
266 Transcript PN6967.
267 Exhibit 2, SP-16.








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Incident Ten – Sick Leave

[136] On 14 August 2014, Ms Purcell was home on sick leave for the third consecutive day. 
On this same day, an accounts and payroll clerk employed by Mercy Education sent an email 
to all staff stating that “a medical certificate must be produced when the number of sick days 
taken exceeds 5 days in any one year”.268 The email also advised that a medical certificate 
must be provided if a staff member takes more than two consecutive days of sick leave or if 
such leave is taken before or after a public holiday.

[137] Evidence was given by the accounts and payroll clerk, Ms Pina McCallum, that in her 
role, she is required to enter data into an electronic database relating to staff leave. The 
database generates a warning when a staff member is required to provide a medical certificate 
and Ms McCallum asserts that on 14 August 2014, she received warnings from the database 
about four staff members who had been absent on sick leave that week.269 After a discussion 
with Ms Farah, Ms McCallum and Ms Farah agreed that Ms McCallum would send a general 
reminder email to all staff about the requirement to provide a medical certificate and that Ms 
McCallum would ask each of the four staff members to provide a medical certificate.270

Emails were also later sent to the four employees the subject of the database alert, including 
Ms Purcell.271

[138] Following this, Ms McCallum sent an email to Ms Purcell apologising that she “had to 
send this”.272 Ms McCallum gave evidence that Ms Farah “told me in hindsight that we 
should have waited a week for the staff to voluntarily provide medical certificates before 
chasing them up”.273 Ms McCallum asserts that, at Ms Farah’s request she attempted to recall 
the emails, “but it was too late because they had already been sent”.274 It is Ms Purcell’s belief
that a number of staff made the connection between the timing of the emails and the fact that 
she was on leave at the time. This made her feel isolated and targeted.275

[139] The Agreement deals with the evidentiary requirement for sick leave as follows:

“30.8 Evidence of sick leave

An Employee who has given his or her Employer notice of the taking of sick leave must, if 
required by the Employer, provide the Employer with a certificate of a registered health 
practitioner or evidence that would be satisfactory to a reasonable person that the leave is 
taken for a reason specified in clause 30.1(b)(i) for:

(a) any absence of more than two consecutive working days;

(b) any absences where the number of sick days already taken without the production of a 
certificate from a registered health practitioner exceeds five working days in a school year; 
or 

                                               
268 Exhibit 21, MF-8C; Exhibit 28, PM-1A.
269 Exhibit 28 at [10].
270 Exhibit 28, PM-1B.
271 Exhibit 21, MF-8B
272 Exhibit 2, SP-17; Exhibit 21, MF-8C; Exhibit 28, PM-1C.
273 Exhibit 28 at [15].
274 Ibid.
275 Exhibit 2 at [69].








[2016] FWC 2308

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(c) any absence on the week day immediately before or immediately after a public holiday so 
long as that week day is a working day.”276

[140] As earlier indicated, emails were sent by Ms McCallum, on 14 August 2014, to the 
four employees the subject of the database alert.277 Ms Farah indicated that these emails were 
sent because the staff members had each taken more than five days of sick leave and were 
required to produce a medical certificate, however, it appeared that her recollections about 
this incident were not clear.278 According to Ms Farah the usual process is that staff call or 
text Mr Robert Ruzbacky to let him know when they are sick. Ms Farah’s understanding is 
that Mr Ruzbacky informs the payroll clerk who then advises Ms Farah whether there is an 
issue or whether a staff member is required to provide a medical certificate. Upon return to 
work, the staff member completes a leave form which is left in Ms Farah’s pigeon hole for 
signature.279

[141] Ms Farah contends that the emails were not sent specifically because Ms Purcell was 
on leave at the time,280 and the evidence given by Ms McCallum as to the warning or alert 
generated by the electronic database supports this contention.

[142] Ms Purcell’s submissions assert “tacit” acknowledgement, by Ms McCallum and by 
Ms Farah, that sending the sick leave email to all staff was an unreasonable action, as set out 
below:

“100. Ms McCallum tacitly acknowledged that the email to Ms Purcell was not reasonable 
by giving the email the bolded title ‘Sorry Sue but had to send that email to you for 
sick leave’.281 In evidence, Ms McCallum was concerned that Ms Purcell would be 
‘alarmed’ upon receiving the email.282

101. Ms McCallum tacitly acknowledged that the email to the other 3 staff was not 
reasonable by giving evidence that the staff would have been ‘surprised’ by the email 
and asserting that she believes that she spoke to these staff and explained why she sent 
the emails.283

102. The Commission should infer from this evidence that it was well understood by both 
Ms Farah and Ms McCallum that the sending of such an email was confrontational 
and not an act they would have undertaken in the light and perfunctory manner in 
which it is described in their statements.284

103. Ms Farah further tacitly conceded that staff would make the connection with Ms 
Purcell by asserting that she ‘did not ask (Ms McCallum) to (send) it that day’285 and 
later asked Ms McCallum to recall the email.286 Accordingly, Ms Farah was aware 
that staff would also make the connection with Ms Purcell. Notwithstanding that Ms 
Farah’s assertions should otherwise not be accepted, in this respect Ms Farah has 

                                               
276 See Victorian Catholic Education Multi Enterprise Agreement 2013; Exhibit 21, MF-8A.
277 Exhibit 21, MF-8B.
278 Exhibit 21 at [137].
279 Ibid at [136].
280 Ibid at [139].
281 Exhibit 2, SP-17.
282 Transcript PN6538.
283 Exhibit 28 at [14].
284 Exhibit 21 at [135] – [139]; Exhibit 28 at [11] – [14].
285 Transcript PN5386 – PN5387.
286 Transcript PN5388; PN6509.








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tacitly conceded that sending the email to all staff on that day was an unreasonable 
action.287”288

[143] So far as Ms McCallum is concerned, the “tacit” admission is said to arise from her 
email to Ms Purcell which read “Sorry Sue but had to send that email to you for sick 
leave”.289 The sending of the email supports no such conclusion. Apart from anything else, it 
is not responsive to the all staff email, which was sent at 10.48am,290 but rather it was sent at 
12.08pm291 in relation to the sick leave email sent by Ms McCallum to Ms Purcell at 
12.06pm.292

[144] Moreover, the words “had to send that email to you for sick leave” is consistent with 
that assessment.

[145] As to the tacit admission by Ms Farah, Ms Purcell points to the following evidence:

“When do you say you asked her?---I asked – I said we should send it, but maybe – and she 
went ahead and sent it, and I asked her to recall it but it was a bit too late to recall it.”293

[146] From this, it is said that a conclusion should be drawn that Ms Farah was aware that 
staff would draw a connection to Ms Purcell, and so the conduct was unreasonable. That, with 
respect, requires several leaps of logic, which I will not make. The sending of a general 
reminder about sick leave, seems to me to be no more than an administrative exercise, which 
is wholly unremarkable. That an attempt was later made to recall the all staff email does not 
demonstrate unreasonableness in sending it in the first place. Ms McCallum explained the 
reason for the attempt to recall the emails as Ms Farah told her that “in hindsight we should 
have waited a week for the staff to voluntarily provide medical certificates before chasing 
them up”.294

[147] The sending of the emails, in my view, was not unreasonable, nor was the all staff 
reminder conduct towards Ms Purcell.

Incident Eleven – Professional Development Day

[148] The next incident is said to have occurred at a Professional Development (PD) day 
held at the College on the last day of Term 3, 2014. Ms Purcell’s evidence is that Ms Farah
sat at a table occupied by Ms Purcell and others, and that throughout the day Ms Farah was 
“aloof and dismissive”.295 When asked to join in activities, Ms Farah declined. Ms Purcell
gave evidence that she felt targeted by this behaviour and that the other staff noticed. Another 
teacher at the same table, according to Ms Purcell’s evidence, later commented to Ms Purcell
words to the effect, “She’s so cold today. She’s very upset with you”.296

                                               
287 Transcript PN5388.
288 Applicant’s Outline of Submissions at [100] – [103].
289 Exhibit 2, SP-17 at p.2.
290 Exhibit 21, MF-8C.
291 Exhibit 2, SP-17 at p.2.
292 Exhibit 2, SP-17 at p.3.
293 Transcript PN5388.
294 Exhibit 28 at [15].
295 Exhibit 2 at [70].
296 Ibid.








[2016] FWC 2308

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[149] Ms Farah’s evidence in relation to this incident was that she arrived late and that there 
were only a few seats left. She joined the table near the back of the room and indicated that 
Ms Purcell, Ms Jacobs, Ms Dorothy Tarazia and Mr Paul Ives were at that table. She said that 
she was getting irritated at the others on her table because they were talking during a 
presentation and she thought it was rude. She said she looked at them to give them a hint to 
stop speaking. Those involved apparently noticed her looking at them and stopped talking. In 
relation to Ms Purcell’s assertion that Ms Farah declined to contribute to the group sessions,
Ms Farah claimed that she did not want to take over as Principal and that she preferred to hear 
what the staff had to say. She noted that she would have been looking at everyone as they 
spoke but does not believe she was glaring at Ms Purcell, or anyone else.297 That staff were 
talking during a presentation is denied by both Ms Purcell298 and Ms Jacobs.299

[150] In any event, Ms Purcell does not complain about any glaring directed to her by Ms 
Farah on that day.300

[151] The suggestion that Ms Farah’s conduct during the PD day was unreasonable and 
directed towards Ms Purcell was said to arise because of the context in which it occurred.
Namely having regard to some of the incidents, to which earlier reference has been made in 
this decision, Ms Purcell had reason to suspect that the conduct was directed at her. Moreover,
it is said that several teachers made the connection that Ms Farah was expressing her 
disapproval of Ms Purcell. Although I readily accept that Ms Purcell might well have had 
reasons to suspect that the conduct was directed at her, particularly as she appears to have 
been encouraged in this view by Ms Jacobs and Ms Tarazia,301 there is simply an insufficient 
evidentiary basis from which one can confidently conclude that the conduct complained of 
was directed at Ms Purcell. Moreover, the conduct complained of is that Ms Farah was 
“aloof” and “dismissive during our activities and discussions”, apparently because she had 
declined to participate in them. 

[152] It is doubtless the case that a school Principal participating in a PD day with staff 
should avoid the appearance of aloofness, disinterest or dismissiveness. Such conduct might 
be described as “poor form” or lacking leadership, but it is not in my view unreasonable 
behaviour, and there is, as I have already indicated an insufficient evidentiary basis to 
conclude the behaviour was directed toward Ms Purcell, much less that the conduct alleged 
was motivated by past interaction between Ms Farah and Ms Purcell.

Incident Twelve – Reduction of Hours

[153] Ms Purcell says that she received two emails from Ms Farah’s personal assistant, Ms 
Martelli, informing her that Ms Farah wanted to meet to discuss her employment in 2015
upon her return from LSL. Ms Purcell replied to that email and attached a copy of the email 
exchange to her witness statement.302 After what appears to be some confusion over the 
scheduled time, a meeting took place on Wednesday, 5 November 2014. During the meeting,
Ms Farah informed Ms Purcell that her time allotment would drop from 0.88 to 0.70 from the 
start of 2015. A letter dated 6 November 2014 was sent to Ms Purcell to confirm the reduction 

                                               
297 Exhibit 21 at [142]-[146].
298 Exhibit 3 at [40]; Transcript PN1420 – PN1426.
299 Exhibit 14 at [5] – [6]; Transcript PN2660 – PN2665.
300 See Exhibit 2 at [70];Applicant's Outline of Submissions at [111]; Transcript PN2662.
301 Exhibit 2 at [70].
302 Ibid at [71]; Exhibit 2, SP-18.








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in hours, which she was to sign and return by 7 November 2014.303 Ms Purcell asked for an 
extension as she did not receive the letter until 7 November 2014. Ms Purcell’s Union had
advised Ms Purcell that the Agreement required Ms Farah to provide staff with a reason for
any hours reduction, and to consult, and that Ms Farah had not complied. Ms Purcell queried 
the reason for the reduction in her hours via email304 and Ms Farah replied by informing her 
that the hours would be reduced as Ms Purcell would no longer be coordinating VCAL in 
2015. This was the only communication Ms Purcell received regarding the reason for the 
reduction. Ms Purcell was concerned the reduction would mean her salary would be reduced 
during her LSL in 2015. However, this did not turn out to be the case.305

[154] According to Ms Farah, it was not appropriate that Ms Purcell be appointed VCAL 
Co-ordinator in 2015 as she was going to be on LSL for the first half of the year.  For this 
reason, another staff member was appointed VCAL Co-ordinator for 2015 and this 
subsequently meant a reduction in Ms Purcell’s hours,306 as the additional time allocated for 
the performance of Co-ordinator functions was not required. Ms Purcell does not complain 
about the reduction in hours per se, but says that the manner in which the reduced hours were 
notified and implemented was unreasonable because:

“ Ms Farah did not comply with the process for reducing the time fraction of a teacher, set out 
at clause 15 of the Victorian Catholic Education Multi-Enterprise Agreement 2013;

 The real reason for the decision was withheld;

 The time given to respond to the variation letter was unreasonable; and

 The effect on Ms Purcell’s income during her leave, which could have been very significant 
was not clarified.”307

[155] Contrary to the submissions of Ms Farah, it does seem to me that clause 15 of the 
Agreement applies to the alteration of hours and that Mercy Education, through the actions of 
Ms Farah, might not have complied with its obligations. That said, I accept that the alteration 
was the natural consequence of the altered status of Ms Purcell’s responsibilities.

[156] Furthermore, I accept the evidence given by Ms Martelli about the dates by which Ms 
Purcell had to reply, which was as follows:

“16. In October 2014 Mary asked me to prepare letters to staff members regarding changes 
in their hours of work. I remember creating drafts of these letters, all of which sought 
the staff member to confirm their new workload by 7 November. When Mary 
eventually met with the staff about their hours I would then finalise their letter.

17. On 30 October 2014 Mary asked me to organise a meeting between her and Susan 
Purcell to confirm Susan’s leave and work load. I sent Susan an email (Annexure 
‘AM-1G’) before setting up an appointment in Mary’s Outlook calendar for 31 
October 2014 at 10:30am and sending a meeting invitation to Susan (Annexure ‘AM-
1H’).

                                               
303 Exhibit 2 at [72]-[73]; Exhibit 2, SP-20.
304 Exhibit 2, SP-22.
305 Exhibit 2 at [75]-[77].
306 Exhibit 21 at [147]-[149].
307 Applicant’s Outline of Submissions at [118].








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18. On 30 October, 6:06pm, Susan sent me an email to say that she was not available for 
the meeting on 31 October 2014 (Annexure ‘AM-1I’). On the morning of 31 
October, I discussed this in person with Susan at around 9:45am and agreed to change 
the meeting date to 5 November 2014. Despite this, I didn’t get around to changing 
the original meeting in the calendar scheduled for 10:30am as I hadn’t had a chance to 
find a new day/time. Susan did follow me up about this that afternoon and at 3:52pm I 
sent the rescheduled appointment for Wednesday 5 November (Annexure ‘AM-1J’). 
The College was closed on 3 and 4 November 2014. Susan and I then exchanged 
further emails on 3 and 4 November 2014 (Annexure ‘AM-1K’).

19. I know Mary met with Susan on 5 November 2014 because afterwards I had to finalise 
Mary’s letter for Susan. I sent that letter out after Mary signed it (Annexure ‘AM-
1L’). I finalised that letter by using the draft letter I had created earlier and updating 
the date of the letter from the original date the letter was drafted to 5 November. 
However I forgot to update the date that Susan had to respond by, which was 7 
November in my draft. This was my mistake. Other staff who received similar letters 
also had to respond by the same day, but they had more time to respond because they 
met Mary and therefore received their letters earlier than Susan did.”308

[157] This was mistaken conduct by Ms Martelli about which Ms Farah was unaware.

[158] The reasons for the alteration were ultimately communicated and the pay concerns 
resolved.

[159] In these circumstances, notwithstanding a lack of communication in the initial 
meeting, the conduct complained of was not unreasonable, though it fell well short of best 
practice.

Incident Thirteen – LSL payment

[160] Ms Purcell had, in May 2014, applied to take LSL during the first six months of 
2015.309 Ms Purcell’s LSL had been approved by Ms Farah on 25 July 2014,310 however her
request for six weeks’ leave at half pay was an arrangement that also required approval. By 
early December 2014, Ms Purcell had yet to receive confirmation that the leave at half pay 
had been approved.311 On 9 December 2014, Ms Purcell was in the staffroom discussing 
whether her LSL arrangement had been approved with Ms McCallum when Ms Farah entered 
the staffroom. Ms Purcell’s evidence was that Ms McCallum had assured her that the half pay 
arrangement had been approved and signed off.312 Ms McCallum appears to confirm that this 
was the case,313 although when the evidence given during her cross-examination is read as a 
whole, it seems clear that Ms McCallum was referring to LSL being approved, rather than the 
half pay arrangement, which Ms McCallum clearly regards as one and the same.314

[161] Ms Purcell’s evidence is that Ms Farah came towards her with her fists clenched and 
stood very close to her. Ms Farah folded her arms across her chest and looked at her 
aggressively. Ms Purcell felt quite threatened. Ms Purcell contends that Ms Farah then asked 

                                               
308 Exhibit 24 at [16] – [19].
309 Exhibit 21, MF-10B.
310 Exhibit 21, MF-10E.
311 Exhibit 21 at [157]; Exhibit 2 at [81].
312 Exhibit 2 at [82].
313 Transcript PN6558 – PN6559.
314 Transcript PN6590 – PN6601.








[2016] FWC 2308

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whether they were discussing Ms Purcell’s LSL and she told Ms Purcell, in an angry tone, “I 
have not signed off on it. You have to wait”.315

[162] Ms Purcell contends that Ms McCallum looked very upset and embarrassed at this and 
when Ms McCallum attempted to explain to Ms Farah what she had told Ms Purcell, Ms 
Farah interrupted, glared at Ms Purcell and repeated that she needed to sign off on it. Ms 
Farah then told Ms McCallum to follow her and they both left. Ms Purcell says she was very 
distressed by the incident and upon visiting her doctor, was given a certificate to take leave 
for the rest of the week. Ms Purcell also gave evidence that she visited a psychologist around 
this time.316

[163] Ms McCallum’s evidence of the incident on 9 December 2014 is somewhat different 
to that of Ms Farah in that she recalls Ms Farah stating that she had approved Ms Purcell’s 
LSL.317 This evidence is clearly inconsistent with Ms Farah’s own evidence in that Ms Farah
says that she had said words to the effect that: “I still need to sort that out”.318 Ms McCallum
contends that Ms Farah appeared upset that they were talking. She also noticed that there was 
something wrong with Ms Purcell but did not mention it at the time.319

[164] Ms Farah said that when she approached Ms McCallum and Ms Purcell in the 
staffroom on 9 December 2014, she thought that they had been “gossiping” about her and Mr 
Coates.320 This “thought” was based, in part, on earlier information that had been provided to 
her by a “staff member” to the effect that the staff member had overheard Ms McCallum and 
Ms Purcell gossiping about Mr Coates,321 and in part because, according to Ms Farah, Ms 
McCallum and Ms Purcell “immediately appeared to change their tone when they saw” Ms 
Farah.322

[165] According to Ms Farah, she approached Ms McCallum and Ms Purcell to ask them 
what they had been talking about, because she had the distinct impression that the two were 
gossiping about her and Mr Coates.323 Ms Farah conceded that, in hindsight, she should not 
have interrupted the conversation between Ms Purcell and Ms McCallum, and says that she 
recalled that Ms Purcell, in answer to Ms Farah’s enquiry said that the two had been talking 
about Ms Purcell’s LSL, to which Ms Farah said words to the effect that “I still need to sort 
that out”.324 Ms Farah concedes that she should not have said this, because Mr Coates and Ms 
McCallum were sorting out Ms Purcell’s leave. She explained that she was irritated at the 
time because she thought that Ms McCallum and Ms Purcell had been gossiping, and she 
wanted to stop the conversation.325

[166] On 17 December 2014, Ms Purcell received an email from Ms McCallum informing 
her that her LSL had been approved.326

                                               
315 Exhibit 2 at [80]-[83].
316 Exhibit 2 at [84]-[85].
317 Exhibit 28 at [19].
318 Exhibit 21 at [160].
319 Exhibit 28 at [19].
320 Exhibit 21 at [160].
321 Ibid.
322 Ibid.
323 Ibid.
324 Ibid.
325 Ibid.
326 Exhibit 2, SP-24.








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[167] It seems to me clear on the evidence, that Ms Farah conveyed to Ms Purcell that the 
issue of LSL on half pay was still to be sorted out by Ms Farah in circumstances where Ms 
Farah knew that this was not the case. Moreover, Ms Farah did so because she was irritated on 
the basis of a baseless, or at least a tenuous, belief that Ms McCallum and Ms Purcell had 
been gossiping about Ms Farah and Mr Coates.

[168] Ms Farah submits that it was known to her that Ms Purcell was, at that time, pursuing 
allegations against Ms Farah with the Board of Mercy Education and, consequently, that Ms 
Farah had every reason for unease about what was being discussed by staff members.327

Moreover, Ms Farah submits that the exchange between Ms Purcell and Ms Farah on 9 
December 2014 was not unreasonable because, ultimately, the discussion “went nowhere” as 
the matter had been finalised by Ms McCallum and Mr Coates.

[169] As to the first submission, that knowledge cuts both ways. It might equally be said that 
alluding to a suggestion that Ms Purcell’s LSL approval was still outstanding, when that was 
not the case, in circumstances where Ms Purcell had only just sought to make a complaint 
about Ms Farah to the Board of Mercy Education, was calculated to reinforce in the mind of 
Ms Purcell that Ms Farah knew about the complaint and was not happy about it. 

[170] As to the second submission, whether the conversation went nowhere, in the sense that 
the LSL issue had been resolved, is with respect, beside the point. It seems to me inherently 
unreasonable for a Principal to knowingly mislead an employee about the status of that 
employee’s LSL application. That she communicated the misinformation in circumstances, on 
Ms Farah’s own evidence, of irritation, which Ms McCallum described as Ms Farah being 
visibly or clearly upset,328 in my opinion serves to underscore the unreasonable nature of the 
behaviour that was directed towards Ms Purcell.

[171] The conduct about which complaint here is made was directed by Ms Farah towards 
Ms Purcell and, was unreasonable.

Incident Fourteen – Letter – Return from long service leave

[172] On or about 24 April 2015, Ms Purcell received a letter from Mercy Education signed 
by Mr John Shannon, the Chairman of the Board of Mercy Education,329 which provided as 
follows: 

“Dear Susan

Thank you for your willingness to accept the MEL Board’s invitation to meet with the Board 
Director, Lucy Molony and Executive Officer, Eugene Lynch, on 31 March at Alphington. 
The Board appreciated the opportunity to speak with you about the preliminary assessment 
report prepared by independent consultant, Zandy Fell, and to consider how best to re-build 
relationships between yourself and Principal, Mary Farah.

I understand from feedback provided to the Board from Lucy and Eugene that currently you 
do not wish to enter into facilitated mediated discussions with Mary.

                                               
327 Exhibit 21 at [159].
328 Transcript PN6570 – PN6575.
329 Exhibit 2, SP-29.








[2016] FWC 2308

52

Since our meeting we have met with Principal, Mary Farah and advise that Mary will make 
your allotment available to you when it is finalised but certainly, in accordance with College 
protocols, two weeks prior to the end of term 2.

It is important, from our perspective, that all parties are able to make a fresh start when you 
return in Semester Two. Mary has indicated on many occasions that she will always treat all 
staff with respect and accord.

There are College policies, however, with which all staff must comply and these include the 
following:-

 Respectful Workplace Policy
 Staff Expectations and College Daily Operations Policy
 Dress Code Protocol
 Staff Performance and Development Policy

In addition Susan, Mercy Education, at the request of the ISMAPNG Leadership Team has 
developed a Code of Conduct for all staff in all its schools. This policy may be accessed on the 
link http://www.mercy.edu.au/resources/dsp-default.cfm?loadref=130

Susan, before you return to work, it is a requirement that you indicate that you will abide by 
these policies. You may indicate your agreement via email to Eugene Lynch by the 31st May.

We hope Susan, that you are refreshed by your Long Service Leave, and that you enjoy your 
return to teaching the girls at St Aloysius and helping them grow into the best young women 
they possibly can be.

Yours sincerely

John Shannon
Board Chair

cc: Mary Farah”330

[173] The requirement contained therein was subsequently reversed in correspondence to Ms 
Purcell from Mr Shannon dated 20 May 2015331 which in terms was as follows:

“Dear Susan

I am writing to clarify some questions that have arisen from our letter dated 24 April 2015.

The key concern driving that communication was to confirm that the Principal, Mary Farah, is 
looking to make a fresh start to the relationship, and to obtain some communication from 
yourself that you are able to offer the same when you return to the College in Semester Two. 
Our meeting with the IEU Representatives yesterday was positive in this regard.

Whilst we understand that this process has been stressful for all participants it is important that 
we are able to focus on rebuilding relationships moving forward. Mercy Education remains 
willing and available to assist in this process required.

                                               
330 Exhibit 2, SP-29.
331 Exhibit 2, SP-30.






http://www.mercy.edu.au/resources/dsp-default.cfm?loadref=130


[2016] FWC 2308

53

In closing, I confirm that you are not required to provide any documentation prior to your 
return from leave in Semester Two.

Yours sincerely

John Shannon
Board Chair

cc: Mary Farah”332

[174] The letter, in my view, overstates somewhat the requirement that Ms Purcell indicated
that she would abide by the policies to which reference is made, before she returned to work 
from LSL. Ms Purcell submits that, that which she described as a demand, was unreasonable 
because:

 Ms Farah had a role in developing the letter because she had had discussions with 
Mr Shannon about Ms Purcell’s return to the College and her concerns were 
reflected in the letter;333

 A letter of this kind had not been issued to other staff returning from long service 
leave or other leave;334

 The threatening tone of the letter and the implication contained therein that Ms 
Purcell would not be permitted to return to work unless she gave the required 
indication as set out in the letter;

 The requirement in the letter was not pressed in subsequent correspondence, but only 
after intervention from the Union.

[175] It is doubtless the case that the Board of Mercy Education, through its Chairman, 
consulted Ms Farah before sending the correspondence of 25 April 2015 to Ms Purcell, and 
perhaps also framed the correspondence to take into account concerns raised by Ms Farah,335

but it does not follow that Ms Farah caused the correspondence to be sent. The letter sets out 
the context in which it was sent, namely the complaints by Ms Purcell to the Board, the 
investigation of the complaint, the outcome of the complaint and the reluctance expressed by 
Ms Purcell to participate in a facilitated mediated discussion with Ms Farah. 

[176] I well understand how the overstating of a so-called “requirement” to agree to abide by 
particular policies as an apparent condition of returning to work might have caused concern 
on the part of Ms Purcell. That part of the letter was clumsily and inelegantly expressed, to 
say the least. But when reading the letter as a whole, I cannot conclude that the broad message 
sought to be conveyed, was in the circumstances, unreasonable.

[177] That said, the letter was not conduct or behaviour by Ms Farah towards Ms Purcell. It 
was conduct or behaviour by Mercy Education towards Ms Purcell.

                                               
332 Exhibit 2, SP-30.
333 Transcript PN3140 – PN3143.
334 Transcript PN3148 – PN3158.
335 Transcript PN3141 – PN3142.








[2016] FWC 2308

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Incident Fifteen – Requirement to undertake induction course upon return from Long Service 
Leave

[178] Ms Purcell returned from LSL on 13 July 2015. Upon her return to work, she was 
advised that she was required to undertake an induction program. Ms Purcell participated in 
the induction on 23 July 2015 as instructed.336 The induction document is stated to be for 
“new staff”,337 and Ms Purcell is the only staff member of the College returning from LSL, to
have been required to participate in the program.338

[179] Ms Farah submits that she had nothing to do with this decision. On her evidence, Ms 
Farah apparently questioned the need for Ms Purcell to undertake the induction training, but 
indicated that Ms Purcell should be treated “like any other staff member”.339

[180] Ms Farah gave evidence as follows: 

“In relation to the induction, did you discuss Susan's participation the induction training with 
Ms Valentine?---Not at all.

Not at all?---Not at all. They brought it to my attention afterwards and I asked, ‘What are you 
doing?’

After the induction was completed, that's the first time you heard about it?---No, beforehand and 
I said, ‘What are you actually doing?’ ‘Oh, we're just going through the policies and she is not 
the only one.’ I said, ‘That's fine. Just treat Susan like any other staff member’.”340

[181] Ms Purcell argues that Ms Farah’s assertion that she played no role in this decision is 
“not credible”.341 Ms Purcell submits as follows:

“135. Ms Farah’s assertion that she had no role in the decision is not credible. There were only 
38 teachers employed at St Aloysius342 and Ms Farah gave evidence that they must 
normally go to her in relation to training.343 Ms Farah’s evidence was that she makes all 
manner of day-to-day operational decisions344 including in relation to training 
requirements.345 Ms Farah was acutely aware of Ms Purcell’s impending return to work. 
Ms Farah’s concerns were so significant that they were documented in the letter from Mr 
Shannon to Ms Purcell of 20 May 2015.346

136. It can be inferred that Ms Farah had sufficient interest in the matter that she would not 
have wholly isolated herself from decisions about what, if any, requirements were to be 
made of Ms Purcell upon her return to work. The assertion that Ms Farah’s involvement 
was limited to being informed that ‘they were going to induct her and the main thing is the 
emergency management plan’347 is inherently unbelievable in circumstances where, on Ms 
Farah’s own evidence:

                                               
336 Applicant’s Outline of Submissions at [134]; Outline of Final Submissions of Mary Farah at [88].
337 Exhibit 2, SP-31.
338 Exhibit 2 at [109].
339 Transcript PN5687.
340 Transcript PN5685 – PN5687.
341 Applicant’s Outline of Submissions at [135].
342 Transcript PN4776.
343 Transcript PN3095.
344 For example, see Transcript PN3085 – PN3088; PN3114.
345 Transcript PN3095.
346 Exhibit 2, SP-30.
347 Transcript PN5763.








[2016] FWC 2308

55

 Ms Farah was very concerned about Ms Purcell’s return to work,
 Ms Farah had been involved in the re-writing of the Bullying policy in advance of Ms 

Purcell’s return,
 Only Ms Purcell and one other staff member were to be inducted,
 No induction had ever previously been required of a returning staff member, and 
 Mr Shannon had, motivated by Ms Farah’s concerns, sought but failed to obtain Ms 

Purcell’s signature on the new Respectful Workplace Policy.”348

[182] Ms Purcell further contends that Ms Farah gave “conflicting and evasive evidence”349

as to whether she had discussed the induction of Ms Purcell. Ms Purcell submits that Ms 
Farah’s assertion that she could not have participated in the decision to require Ms Purcell to 
undertake the induction on the basis of an email Ms Farah received from the Union indicating 
that “We think it is appropriate that while this process continues any communications you 
need to have with Ms Purcell in the workplace are handled through the Deputy Principal”350 is 
“not believable”.351

[183] Furthermore, Ms Purcell argues that Ms Farah had, through Mr Shannon, 
unsuccessfully sought to compel Ms Purcell to sign the new bullying policy and that she 
achieved this desire by requiring Ms Purcell to participate in the induction program.352

[184] As discussed above, I do not accept that Ms Farah caused the correspondence of 24 
April 2015 to be sent to Ms Purcell. Also, as mentioned above, I consider it likely that the 
overstating of a so-called “requirement” to agree to abide by particular policies, as an 
apparent condition of returning to work, might have caused concern on the part of Ms Purcell.
It remains the case, however, that there is no probative evidence to establish that Ms Farah
caused the correspondence to be sent.

[185] The policy requiring returning staff who have been on leave which extended for 6 
months or more, was introduced in September 2015.353 Ms Purcell returned from LSL in July 
2015. Ms Purcell argues that there was no evidence of any such policy being in existence in 
July 2015, or for that matter, prior to September 2015, and given that Ms Farah conceded this 
point during oral evidence,354 I accept this argument. In addition, the induction documentation 
specifically states that it is for “new staff”355. Ms Purcell contends that the requirement that 
she participate in the induction made her feel isolated and targeted,356 and that it was 
unreasonable and demeaning.357

[186] Ms Purcell contends that the requirement that she attend the induction and sign the 
acknowledgement, particularly in the context of the letter from Mr Shannon to Ms Purcell,358

constituted bullying conduct and that this decision did not constitute “management action”.359

                                               
348 Applicant’s Outline of Submissions at [135] - [136].
349 Ibid at [137].
350 Ibid at [138].
351 Ibid.
352 Ibid at [139].
353 Applicant’s Outline of Submissions at [141]; Transcript PN5731 – PN5738.
354 Transcript PN5695 – PN5706.
355 Applicant’s Outline of Submissions at [143]; Exhibit 2, SP-31.
356 Transcript PN1599.
357 Applicant’s Outline of Submissions at [143].
358 Exhibit 2, SP-29.
359 Applicant’s Outline of Submissions at [145] – [146].








[2016] FWC 2308

56

[187] Ms Farah contends that she was not involved in the decision to require Ms Purcell to 
undertake the induction and that “induction is, after all, a means of supporting staff360 rather 
than penalising them”.361 Taken as a general proposition, this is undoubtedly the goal of an 
induction, however in the particular circumstances, I do not agree with the contention and I 
am of the view that the requirement was unreasonable for the following reasons:

 Ms Purcell was instructed to undertake the induction before the policy requiring staff 
returning from 6 months leave or more to do so was introduced. Ms Purcell returned 
from LSL in July 2015 and the policy was introduced in September 2015;

 No other staff member (returning from short term leave), before Ms Purcell, had 
been required to undertake induction;

 The other staff member required to undertake induction at the same time as Ms 
Purcell had resigned from the College in 2012 and was commencing a new contract 
of employment, after an absence of more than 2 years;362

 The evidence of Ms McCallum that another staff member, who at the time the 
evidence was given (21 December 2015) was to take LSL in 2016, would be 
required to participate in an induction363 does not assist in assessing whether 
requiring Ms Purcell in July 2015 to undertake an induction was reasonable. It would 
be surprising if evidence, other than that given by Ms McCallum, were given in the 
context of an allegation by Ms Purcell that she was singled out, with these
proceedings still on foot.

 The induction documentation clearly indicates that it is aimed at “new staff”; and

 Given that Ms Purcell had been employed at the College for approximately 20 years, 
the changes within the College during the period of the 6 months of LSL were 
minimal and could have simply been communicated to Ms Purcell in short written or 
oral form upon her return.

[188] Moreover, I do not accept that Ms Farah was not involved in the decision to require 
Ms Purcell to undertake the induction. Ms Farah knew, before the induction commenced that 
Ms Purcell was to be required to undertake the induction. She was in a position to intervene 
but did not. From this, I infer that Ms Farah, at the very least endorsed the decision, as she 
had both the knowledge and authority to overturn it. Moreover, Ms Farah’s evidence that she 
said “Just treat Susan like any other staff member”364 is difficult to accept in circumstances 
where no policy existed, and no previous staff member returning from LSL had been required 
to undertake such an induction, facts about which Ms Farah was well aware.365 In fact, by 
allowing the Deputy Principal to require Ms Purcell to undertake the induction in these 
circumstances, was treating her differently to other staff members. The unexplained absence 
of Ms Valentine in giving evidence (discussed later in this decision) does not assist Ms Farah 
in persuading me that she was not involved in the decision. I am therefore satisfied that the 
                                               
360 Transcript PN5963.
361 Outline of Final Submissions of Mary Farah at [90].
362 Applicant’s Outline of Submissions at [142]; Transcript PN5741 – PN5751; Exhibit 2 at [109].
363 Transcript PN6834 – PN6835.
364 Transcript PN5687.
365 Transcript PN5688; PN5689 – PN5706.








[2016] FWC 2308

57

requirement for Ms Purcell to undertake an induction upon her return from LSL was 
unreasonable behaviour by Ms Farah towards Ms Purcell. 

[189] The requirement that Ms Purcell undertake the induction was “management action” 
but for the reasons given, it was not reasonable. In my view, there is no evident or intelligible 
justification for requiring that Ms Purcell undertake the induction.

Incident Sixteen – Allocation of Mentor

[190] Ms Purcell was also assigned a mentor upon her return from LSL and this is said to be
a deliberate action by Ms Farah to target Ms Purcell.366 Ms Purcell’s evidence is that no other 
staff member had a mentor at the time and, to her knowledge, no other staff member had ever 
been assigned a mentor after returning from less than twelve months leave.367 No evidence 
was adduced to establish otherwise. Ms Purcell’s evidence is that she felt singled out, targeted
and demeaned by being unilaterally assigned a mentor.368

[191] Ms Purcell was advised that she had been assigned a mentor during the induction 
program. The mentor assigned to her was a person with less teaching experience and less 
knowledge of the College than Ms Purcell.369

[192] The role of the mentor is set out in the “Induction Information for New Staff 2015”370

document as follows:

“Role of The Mentor
A successful Mentor is characterized as being:

Supportive: A Mentor is one who supports the needs and aspirations of the Mentee. 
This supportive attitude is cricital for the successful development of the mentee. A 
Mentor must encourage the Mentee to accept challenges and overcome difficulties.

Patient: A Mentor is patient and willing to spend time performing mentoring 
responsibilities. A mentor allows adequate time to interact with the Mentee. Time 
requirements are defined by both the Mentor and the Mentee.

Good Motivator: A Mentor is someone who inspires a mentee to do better. A Mentor 
needs to be able to motivate a Mentee through encouraging feedback and challenging 
work assignments (where applicable).

Effective Teacher: A Mentor must not only teach the ‘skills of the trade,’ but also 
manage the learning of the Mentee. This means the Mentor must actively try to 
recognize and use teaching opportunities.

Values St Aloysius and the teaching profession: A Mentor takes pride in St 
Aloysius and relishes the everyday challenges that typically arise. A Mentor 
understands the mission, vision, and values of the College, and supports the College’s 
initiatives.

                                               
366 Transcript PN1594.
367 Exhibit 2 at [113]; Transcript PN1594.
368 Applicant’s Outline of Submissions at [151].
369 Ibid at [148]; Exhibit 2 at [113]; Transcript PN1593.
370 Exhibit 30.








[2016] FWC 2308

58

Accepts others: A Mentor is one who shows regard for another’s wellbeing. Every 
person, including the Mentor, has certain vulnerabilities and imperfections that must 
be accepted.

Refer to Mentor Role Description for more detail.”371

[193] Ms Purcell submits that the decision to allocate a mentor was made by Ms Farah and 
that Ms Farah’s evidence to the contrary, was contradictory and should not be accepted. In 
particular, Ms Purcell argues that Ms Farah: 372

“ pretended not to know the reasons why a mentor was assigned, but asserted that it was with 
a good intention;373

 asserted that she had not discussed the assignment of a mentor with Ms Valentine;374

 used the words ‘we appointed’;375

 conceded that she ‘supported (her) deputy with the decision she made’;376 and

 gave evasive evidence, such as trying to conflate the general support given by a team leader 
with the appointment of a mentor.377”

[194] Ms Purcell further submits that, although Ms Farah claimed she had nothing to do with 
the assignment of a mentor, she advanced a number of reasons supporting the decision which 
she then declined to reinforce in cross-examination. The reasons given by Ms Farah included:

 Changes to the curriculum (but as conceded by Ms Farah no changes were made 
within the 6 months that Ms Purcell was on LSL);378

 The mentor was there to support everyone (but was assigned as a mentor to Ms 
Purcell by Ms Valentine);379 and

 Encouraging conversation (which Ms Farah conceded could be conducted with any 
other staff member).380

[195] Ms Purcell also contends that the decision to allocate a mentor did not constitute 
management action, but to the extent that it may, then it was not reasonable in that it was:

“ Unprecedented at St Aloysius381

 Out of step with the practice in Catholic Education in Victoria;382

                                               
371 Exhibit 30 at p.4.
372 Applicant’s Outline of Submissions at [149].
373 Transcript PN5764; PN5769; PN5773; PN5768.
374 Transcript PN5771 – PN5772.
375 Transcript PN5793.
376 Transcript PN5784 – PN5786.
377 Transcript PN5793 – PN5795.
378 Applicant’s Outline of Submissions at [150]; Transcript PN5791 – PN5793.
379 Ibid; Transcript PN5794 – PN5795.
380 Ibid; Transcript PN5781 – PN5783.
381 Exhibit 2 at [113]; Transcript PN1593; as to departure from established procedures supporting a finding of not carried out 
in a reasonable manner, see Yu v Comcare [2010] AATA 960.
382 Exhibit 1 at [14] – [15].








[2016] FWC 2308

59

 With very particular application to Ms Purcell,383

 Nonsensical in that the person allocated to mentor Ms Purcell was 

o a less experienced teacher,

o with less experience teaching English

o with less experience working at St Aloysius;384 and

o was not teaching the same year level or areas of English as Ms Purcell;385

 Implemented mandatorily, and such that other staff might be aware that Ms Purcell 
required mentoring;386

 Taken in circumstances which point to unreasonableness including that, in late 2014, Ms 
Purcell had filed two sets of complaints about the conduct of Ms Farah.387

 Implemented such as to target, embarrass, humiliate and isolate Ms Purcell.”388

[196] Ms Farah contends that she had nothing to do with the decision and, accordingly, it 
was not conduct by Ms Farah towards Ms Purcell.389 She says the decision was made by her 
deputy, Ms Valentine. Ms Farah submits that allocating a mentor is a form of support, and 
that most of the leadership team, including Ms Farah herself, have mentors.390

[197] The evidence given by Ms Farah in relation to this allegation is contradictory, 391

unconvincing and, in my view, not credible. Ms Farah was aware that the Deputy Principal 
had appointed a mentor to Ms Purcell upon her return from LSL. She supported the 
decision392 and said that Ms Valentine’s intentions were good.393 Ms Farah is the Principal of 
the College and, according to her own evidence, she is involved in the day to day operational 
decisions, hiring and firing of staff, she makes the decision as to whether or not to place staff 
on performance management plans and she is involved in the decisions regarding training 
requirements.394

[198] Moreover, the induction document in which the decision to allocate a mentor to Ms 
Purcell was set out,395 carried a “Principal’s Welcome” above the name of Ms Farah. In 
addition, although Ms Farah suggested that she did not discuss the allocation of a mentor with 
Ms Valentine,396 I think that is unlikely given that the induction (of which allocation of the 

                                               
383 Despite the assertion that most leadership have mentors (Transcript PN5769), no other teachers have had mentors 
unilaterally allocated to them.
384 Exhibit 2 at [113]; Transcript PN1593; PN57765; PN5779.
385 Transcript PN1593; PN1603.
386 Exhibit 2 at [113].
387 Georges v Telstra Corporation Limited [2009] AATA 731.
388 Applicant’s Outline of Submissions at [153].
389 Final Outline of Submissions of Mary Farah at [92].
390 Final Outline of Submissions of Mary Farah at [93]; Transcript PN5769.
391 Transcript PN5793; PN5795.
392 Transcript PN5770.
393 Transcript PN5768.
394 Transcript PN3095; PN3085 – PN3088 and PN3114.
395 Exhibit 30 at p.4.
396 Transcript PN5771.








[2016] FWC 2308

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mentor was a part) was not discussed with Ms Valentine.397 Indeed, I am not sure how Ms 
Farah would have formed the view that Ms Valentine’s intentions were good without 
discussing the decision. 

[199] Ms Valentine was held out as the person who made both the decision to require Ms 
Purcell to undertake an induction and to allocate a mentor yet she was not called to give 
evidence. The reason she was not called is unexplained by Ms Farah. It seems clear that she 
could have been called since on at least one occasion, Ms Valentine was in the courtroom 
during the hearing.398 In the circumstances, I draw the inference that her evidence would not 
have assisted Ms Farah.399 The cumulative effect of all this is that I am satisfied that the 
decision to allocate a mentor to Ms Purcell was that of Ms Farah.

[200] I also accept that the decision was unreasonable for the following reasons: 

 According to the induction document given to Ms Purcell which sets out the 
allocation of a mentor, “each new staff member will have a mentor”.400 Ms Purcell
was not a new staff member and had rendered nearly two decades of teaching service 
at the College;

 The reasons advanced by Ms Farah for the allocation of a mentor were confused and 
unconvincing;401 and

 The mentor allocated was a less experienced teacher, with a lesser period of service 
at the College, with less experience in teaching English and was not teaching the 
subject at the same level as Ms Purcell.402

[201] Consequently, I am satisfied that the decision to allocate a mentor to Ms Purcell was
unreasonable conduct or behaviour of Ms Farah towards Ms Purcell.

[202] Although the decision to allocate a mentor to Ms Purcell was “management action”, 
for the reasons given, it was not reasonable. There is no evident or intelligible justification for 
the allocation of a mentor to Ms Purcell in the circumstances.

What is bullying behaviour under the Act?

[203] Section 789FD of the Act provides as follows:

“789FD When is a worker bullied at work?

(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally-covered business:

(i) an individual; or
(ii) a group of individuals;

                                               
397 Transcript PN5770.
398 Transcript PN6398 – PN6399.
399 Jones v Dunkel (1959) 101 CLR 298.
400 Exhibit 30 at p.18.
401 Transcript PN5791 – PN5788; PN5793 – PN5795 and PN5781 – PN5783.
402 Transcript PN1593; PN5776; PN5779.








[2016] FWC 2308

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repeatedly behaves unreasonably towards the worker, or a group of workers of
which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action
carried out in a reasonable manner.

(3) If a person conducts a business or undertaking (within the meaning of the Work
Health and Safety Act 2011) and either:

(a) the person is:

(i) a constitutional corporation; or
(ii) the Commonwealth; or
(iii) a Commonwealth authority; or
(iv) a body corporate incorporated in a Territory; or

(b) the business or undertaking is conducted principally in a Territory or
Commonwealth place;

then the business or undertaking is a constitutionally-covered business.”

Repeated unreasonable behaviour

[204] It is apparent from the analysis above that I have found that Ms Farah has repeatedly 
behaved (incidents eight, thirteen, fifteen and sixteen) unreasonably towards Ms Purcell. 

[205] For the reasons given earlier I do not consider that any of the four incidents
constituting the repeated behaviour amount to reasonable management action carried out in a 
reasonable manner.

[206] In order that the repeated unreasonable behaviour identified may be said to be bullying 
at work it is also necessary to conclude that the repeated behaviour creates a risk to health and 
safety.

Risk to health and safety

[207] In Ms SB, Hampton C provided the following analysis in relation to the “risk to health 
and safety” element in s.789FD as follows:

“[44] The unreasonable behaviour must also create a risk to health and safety. Therefore there 
must be a causal link between the behaviour and the risk to health and safety. Cases on 
causation in other contexts suggest that the behaviour does not have to be the only cause of the 
risk, provided that it was a substantial cause of the risk viewed in a common sense and 
practical way. This would seem to be equally applicable here.”403 [Endnotes omitted]

                                               
403 Re Ms SB [2014] FWC 2104 at [44]; See also Newcastle Wallsend Coal Co Pty Ltd v Workcover Authority (NSW) 
(Inspector McMartin) [2006] NSWIRComm 339; 159 IR 121 at [301].








[2016] FWC 2308

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[208] A risk to health and safety means the possibility of danger to health and safety, and is 
not confined to actual danger to health and safety.404 The ordinary meaning of “risk” is the
exposure to the chance of injury or loss; a hazard or dangerous chance,405 however, the risk 
must be real and not merely conceptual.406

[209] It is clear that it is not necessary that an applicant demonstrate that he or she has 
suffered actual injury or loss in order to demonstrate the necessary risk.407

Incident Eight – Annual Review Meeting

[210] For the reasons set out at [117] to [126] above, the decision to nominate Mr Coates to 
participate in Ms Purcell’s ARM was unreasonable conduct or behaviour of Ms Farah directed 
towards Ms Purcell. The decision was likely, in the circumstances of her poor relationship 
with Mr Coates, to have caused Ms Purcell some distress. However, as the decision was not 
ultimately implemented once objection was taken, the impact of the decision on a risk to 
health and safety is, in my view, somewhat mitigated. Taken in isolation, the decision, which 
was not implemented, is in my view unlikely to have posed a risk to Ms Purcell’s health or 
safety, but the incident is not isolated and so the cumulative effect of the repeated behaviour 
on the risk to health and safety must be taken into account. 

Incident Thirteen – LSL Payment

[211] For the reasons set out at [160] to [171], the deliberate communication of the 
misinformation about Ms Purcell’s LSL payment by Ms Farah was unreasonable behaviour 
and was, clearly directed towards Ms Purcell. The conduct appears to have been motivated by 
a groundless suspicion about gossiping, and was, in my view, calculated to cause uncertainty 
in the mind of Ms Purcell and is likely to have caused her distress.  

Incident Fifteen – Induction Course

[212] As detailed at [178] to [189] above, I have concluded that the requirement that Ms 
Purcell undertake induction, upon her return to work after LSL, constitutes unreasonable 
behaviour by Ms Farah towards Ms Purcell. That she was required to undertake the induction 
in the circumstances was likely to have caused Ms Purcell to be distressed.

Incident Sixteen – Allocation of Mentor

[213] It is also my view that the allocation of a mentor was an unreasonable decision. I have 
set out my reasons for this conclusion at [190] to [202] above and am satisfied that the 
decision was that of Ms Farah. The allocation of a mentor to Ms Purcell, given her years of 
experience and absent any demonstrable need for a mentor would likely have been a source of 
embarrassment to Ms Purcell and a source of distress.

[214] As discussed earlier in this decision, it is not necessary that Ms Purcell demonstrate 
she has suffered actual injury or loss in order to establish a risk to health and safety. Ms 

                                               
404 Thiess Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252, 78 NSWLR 94 at [65]-[67]; Abigroup 
Contractors Pty Ltd v Workcover Authority of New South Wales (2004) 135 IR 317 at [58]; Ms SB [2014] FWC 2104.
405 Macquarie Dictionary definition.
406 Re CG [2014] FWC 6988 at [49]-[50].
407 Mac v Bank of Queensland & Ors [2015] FWC 774.








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Purcell provided two very brief reports from a general practitioner and a psychologist, both of 
whom she presented to after 18 June 2015.408 However, neither the general practitioner nor 
the psychologist were called to give evidence during the proceedings. 

[215] Ms Purcell submits that she was exposed to “multiple and repeated instances of 
isolation, targeting, disparagement to other staff and demeaning treatment” and asserts that 
“No further evidence is required to establish that exposure to such treatment raises a real risk 
to health and safety”.409 There must be a causal link between the behaviour and the risk, and 
that risk must be real and not just conceptual.

[216] In my view, Ms Purcell’s perception as to risk, cannot be the sole determinant of the 
risk to health and safety. Ms Purcell contends that she has experienced distress, and 
significant stress and anxiety as a result of the conduct complained of.410 Having observed Ms 
Purcell during these proceedings, I have no doubt that the events complained of have affected 
her wellbeing. As I have indicated above, the incidents are likely to have caused distress to 
Ms Purcell. Moreover, the cumulative effect of the incidents is likely to have heightened the 
level of distress. Some of the distress experienced by Ms Purcell will have, in my view, been 
caused by her perception of Ms Farah’s attitude towards her, and Ms Purcell’s perception of 
Ms Farah’s demeanour, facial expressions and manner, rather than the conduct of Ms Farah.

[217] Nonetheless, the four incidents which I have concluded constitute repeated 
unreasonable behaviour were likely to have caused distress and thereby posed a real risk to 
Ms Purcell’s mental health. The allocation of a mentor and the requirement that Ms Purcell 
participate in the induction program was, in the circumstances, insulting, embarrassing and 
humiliating. Ms Farah’s communication of the status of Ms Purcell’s LSL application was not 
only unnecessary, but in my view calculated to cause uncertainty in the mind of Ms Purcell.
The decision to nominate Mr Coates to conduct Ms Purcell’s ARM did not have any 
legitimate purpose and was likely to have caused Ms Purcell some distress given her previous 
dealings with Mr Coates and about which Ms Farah was aware. 

[218] It follows that Ms Farah repeatedly behaved unreasonably towards Ms Purcell and that 
behaviour created a risk to the health and safety of Ms Purcell. Ms Purcell was bullied at 
work.

What orders if any should be made?

[219] These proceedings were ultimately conducted on the basis that I would first make 
findings as to whether bullying at work occurred, and that if I were satisfied that there has 
been bullying of Ms Purcell by Ms Farah at work, I would separately deal with the question of 
whether there is an ongoing risk of bullying, and if so what orders (if any) should be made.411

This was appropriate having regard to the array and nature of the allegations made by Ms 
Purcell, and the need to consider both the question of ongoing risk and the need for any 
consequential orders having regard to the conduct actually found as constituting bullying at 
work.

                                               
408 Exhibit 2, SP-34; See also Report of Melanie Hunter, Psychologist filed 23 September 2015.
409 Applicant’s Outline of Submissions at [164].
410 Ibid at [165] – [166].
411 See Transcript PN13 – PN28.








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[220] As I have concluded that there are four incidents which together constitute repeated 
unreasonable behaviour by Ms Farah towards Ms Purcell that create a risk to health and 
safety, it is appropriate to now establish a program by which the question whether any orders 
should be made is to be considered and determined.

[221] As I have endeavoured to indicate at the outset of this decision, the relationship 
between Ms Purcell and Ms Farah is an obviously tense one involving some mutual animus. It 
appears to me that this poor relationship is at the heart of many of the issues about which 
complaint has been made, whether or not the evidence about those issues has ultimately 
persuaded me that they constitute part of the repeated unreasonable behaviour. I consider that 
interpersonal relationship disputes are best resolved through the efforts of the parties and 
perhaps assisted by some form of facilitation or mediation. Any orders that I might make will 
likely favour one side over the other. Such orders will only be made after further evidence is 
received and submissions are made, the effect of which will be to reinforce established views 
that each party has of the other rather than to facilitate some form of reconciliation between 
the parties. The latter is much more likely to produce a lasting positive improvement in the 
working relationship between Ms Farah and Ms Purcell than any order that I might make. The 
better the relationship repair, the less likely it will be that orders are necessary. Although Ms 
Purcell has previously declined to embark upon a restorative process proposed by Mercy 
Education, I would urge her to reconsider. That the offer was made is, in my view, 
recognition that there is a relationship in need of repair. This is a good start.

[222] With this in mind, I propose for the parties’ consideration that they engage with each 
other in a series of mediated or facilitated meetings with the aim of repairing their relationship 
and engaging in a dialogue that will accommodate an ongoing professional working 
relationship and a safe working environment.

[223] If the parties are unwilling to engage with each other in the way I have suggested, then 
the parties are to file in my chambers within 14 days of the date of this decision an agreed 
form of directions which will facilitate the expeditious hearing and determination of the 
question whether orders should be made pursuant to s.789FF of the Act.

Conclusion

[224] For the reasons given, incidents eight, thirteen, fifteen and sixteen taken together,
amount to repeated unreasonable behaviour by Ms Farah towards Ms Purcell and that 
behaviour created a risk to Ms Purcell’s mental health. Consequently, I am satisfied that Ms 
Purcell was bullied at work by Ms Farah. The parties are to give consideration to participating 
in a facilitated or mediated series of meetings with the aim of repairing an obviously damaged 
working relationship. If the parties, or one of them, are not willing to participate, the parties 
are to file consent directions in my chambers by 25 July 2016 to facilitate the expeditious 
hearing and determination of the question whether orders should be made pursuant to s.789FF 
of the Act.

DEPUTY PRESIDENT


WORK COMMISSION THE SEAL OF




 



[2016] FWC 2308

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Appearances:

Mr D. Matson of the IEU on behalf of Ms Purcell.

Mr R. Millar of Counsel on behalf of Ms Farah.

Mr J. Forbes of Counsel on behalf of Mercy Education.

Hearing details:

2015.
Melbourne.
November 9, 10, 11, 12 and 13.
December 21.

2016.
Melbourne.
March 23.

Final written submissions:

Applicant’s Outline of Submissions, 19 February 2016.

Outline of Final Submissions of Mary Farah, 10 March 2016.

Second Respondent’s Outline of Final Submissions, 16 March 2016.

Applicant’s Reply Submissions, 22 March 2016.

Printed by authority of the Commonwealth Government Printer

Price code J, PR578996

Cases cited by this decision: