Application by Burbeck, Katherine (Kate) - [2017] FWC 4988

1

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

Katherine (Kate) Burbeck

v

Alice Springs Town Council; Georgina Davison; Skye Price; Clare Fisher
(AB2017/120)

COMMISSIONER WILSON MELBOURNE, 6 OCTOBER 2017

Application for an FWC order to stop bullying.

INTRODUCTION

[1] This decision concerns an application made under the Fair Work Act 2009 (FW Act) 
anti-bullying provisions by Katherine Burbeck, an employee of the Alice Springs Town 
Council (ASTC, or the Council). Ms Burbeck’s application alleges numerous elements of 
conduct, said to be bullying, by several employees of the Council, namely Georgina Davison 
its Manager Library Services; Clare Fisher, its Library Operations Team Leader and Skye 
Price its Director Corporate and Community Services.

[2] Since Ms Burbeck is employed by a body corporate incorporated in the Northern 
Territory, there is jurisdiction for the application to proceed (s.789FD(3)(iv) FW Act, and 
s.25(1) of the Local Government Act (NT)).

[3] The Commission’s assessment of allegations of bullying at work is an objective 
assessment of whether behaviour and conduct that occurred was unreasonable with an 
attendant likely risk to health and safety. Behaviour and conduct that, objectively considered, 
is reasonable management action is not bullying at work. Even having found objectively there 
was bullying at work, the Commission must then assess, also objectively, whether there is a 
risk of the conduct continuing, also with a further risk to health and safety. After that point, 
the Commission is vested with the discretion to make orders or not.

[4] The evidence supports a finding that Ms Burbeck has been bullied at work, within the 
meaning of the FW Act and that it is appropriate to make orders dealing with the behaviour 
and conduct that has arisen.

APPLICABLE LEGISLATION

[5] The FW Act’s provisions in relation to anti-bullying are contained within Part 6-4B—
Workers bullied at work, with s.789FD setting out the circumstances of when a worker is 
bullied at work:

[2017] FWC 4988

DECISION


E AUSTRALIA FairWork Commission




 



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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.”

[6] Section 789FF sets out the powers of the Commission to make orders in the event that 
it is satisfied there is bullying at work:

“789FF FWC may make orders to stop bullying

(1) If:

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

(b) the FWC is satisfied that:

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








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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.

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

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

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

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

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

BACKGROUND

[7] Ms Burbeck presented her own case to the Commission and was assisted by Mr Ken 
Turner, who is also an employee at the Council.

[8] Mr Chris Turner, solicitor, and Mr K McCann, both of whom are employed by the 
ASTC, represented Ms Davison, Ms Price and Ms Fisher and the interests of the ASTC.

[9] Ms Burbeck has been employed by the ASTC in the Alice Springs Public Library 
since 2005. Her present position is that of Children’s and Youth Services Officer. She was on 
long service leave until April 2016 and during the period she was away, Lynda Wickham 
moved into a newly created position of Programs Team Leader and Ms Burbeck commenced 
reporting to her. Prior to Ms Wickham being appointed to that position Ms Burbeck had 
reported to Ms Davison, the Library Manager.1

[10] Ms Burbeck has not been at work since October 2016, when she proceeded on leave.

[11] Following discussion by me with the parties in a conference prior to the formal start of 
proceedings, six broad matters were agreed as requiring determination in this decision as to 
whether any, some, or all were bullying;

 Performance counselling – a decision by ASTC to commence performance 
counselling Ms Burbeck after a performance appraisal meeting on 22 June 2016;

 The “respect” email – a decision by ASTC to investigate Ms Burbeck’s conduct in 
relation to an alleged Code of Conduct breach as a result of her reply to email from 

                                               
1 Exhibit A1, Witness Statement of Katherine Burbeck, Attachment B, [1] – [3].








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her Manager on 23 June 2016 seeking team members adhere to certain 
organisational cultural matters, including showing respect to each other;

 Two workplace grievances – ASTC’s dealing with two workplace grievances 
lodged by Ms Burbeck during July 2016;

 The First Allegations letter – ASTC’s decision to issue a letter on 12 October 2016 
alleging Ms Burbeck had breached its Code of Conduct and requiring her 
attendance at a meeting to answer the allegations set out therein;

 The Second Allegations Letter – ASTC decision to issue a letter on 20 October 
2016, also alleging Ms Burbeck had breached the Code of Conduct and also 
requiring her attendance at a meeting to answer the allegations set out within the 
letter;

 The February 2017 annual leave approval revocation – the decision of ASTC to 
revoke approval for Ms Burbeck to take annual leave in February 2017.

[12] Ms Burbeck’s submissions and evidence to the Commission raises more claims than 
the foregoing matters. Since that is the case, I have had regard to all the evidence and that of 
the ASTC, and each of the witness statements provided by Georgina Davison, Skye Price and 
Claire Fisher in making a decision as to whether there has been workplace bullying involving 
Ms Burbeck.

[13] The six categories of alleged workplace bullying to which I have referred above are 
the categories I considered at the start of the determinative conference may be arguable as 
workplace bullying. No evidence led in the determinative conference caused me to form the 
view that additional categories of matters should be considered in detail for workplace 
bullying in this decision.

[14] Evidence was received in the determinative conference from Ms Burbeck, her 
psychiatrist, Dr Bernard Hickey. Each of the persons named, Ms Davison, Ms Price and Ms 
Fisher gave evidence on their own and on each other’s behalf. Ms Biggi Gosling, the 
Council’s Human Resources Manager also gave evidence on behalf of Ms Davison, Ms Price 
and Ms Fisher.

THE COMMISSION’S CONSIDERATION OF ANTI-BULLYING APPLICATIONS

[15] An applicant for an order from the Commission to stop bullying under s.789FC of the 
FW Act must not only be a worker but one who “reasonably believes that he or she has been 
bullied at work”, with that belief being actually and genuinely held, as well as it being 
reasonable in an objective sense.2 The term “worker” has the same meaning as in the Work 
Health and Safety Act 2011 (Cth), but does not include a member of the Defence Force.3

[16] Conduct does not occur “at work” merely because it has a substantial connection to 
work.4 The question of whether behaviour or conduct occurred “at work” does not necessarily 

                                               
2 Mac v Bank of Queensland Limited & Others [2015] FWC 774 [79].
3 Fair Work Act 2009 (Cth) s.789FC(2).
4 Mac v Bank of Queensland Limited & Others [2015] FWC 774 [84].








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equate to the performance of work and will require a consideration of the context, including 
custom and practice, and the nature of the worker’s contract.5

[17] Ascertainment of “unreasonable behaviour” in the context of Part 6-4B of the FW Act 
requires application of an objective test having regard to all the relevant circumstances 
applying at the time.6 The Explanatory Memorandum which accompanied the Bill from which 
this legislation arises makes reference to the earlier majority report of the House of 
Representatives Standing Committee on Education and Employment, entitled “Workplace 
Bullying - We just want it to stop” and made the following points about behaviour and its 
assessment by the Commission:

“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.”7

[18] The conduct to be considered is that of natural persons, given that there is no provision 
in Part 6–4B that suggests bullying at work is something which can be engaged in by a 
corporation;8 however the individuals engaging in the unreasonable behaviour need not be 
workers, for example they may be customers.9

[19] Repeatedly behaving unreasonably implies the existence of persistent unreasonable 
behaviour and it 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.
‘Unreasonable behaviour’ should be considered to be behaviour that a reasonable person, 
having regard to the circumstances, may consider to be unreasonable.10 Consideration of the 
question of whether an individual or group “repeatedly behaves unreasonably” will require a 
purposive approach and “unreasonableness is a conclusion which may be applied to a decision 
which lacks an evident and intelligible justification”.11 Further, for conduct to be reasonable it 
does not have to be the best or the preferable course of action, rather the conduct will be 
objectively assessed as to whether what was done was done “reasonably”, not whether it 
could have been done more reasonably or differently.12

[20] It will be necessary for the Commission to determine whether the alleged behaviour 
actually occurred, and once the necessary findings of fact have been made, the Commission 
can then determine whether the behaviour was unreasonable.13

                                               
5 Bowker & Ors v DP World Melbourne Limited & Ors [2014] FWCFB 9227, see [50], [53].
6 Re SB [2014] FWC 2104 [43].
7 Explanatory Memorandum, Fair Work Amendment Bill 2013 (Cth), p.29.
8 Mac v Bank of Queensland Limited & Others [2015] FWC 774 [86].
9 Bowker & Ors v DP World Melbourne Limited & Ors [2014] FWCFB 9227 [31].
10 Re SB [2014] FWC 2104 [41], [43]
11 Mac v Bank of Queensland Limited & Others [2015] FWC 774 [89] [90]; with reference to Minister for Immigration and 

Citizenship v Li (2013) 249 CLR 332 [76].
12 Ibid [91]; with reference to Bropho v Human Rights & Equal Opportunity Commission (2004) 135 FCR 105 [79].
13 Ibid [92].








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[21] In relation to the risk to health and safety of unreasonable behaviour, there must be a 
causal link; however, the behaviour does not have to be the only cause of the risk, but a 
substantial cause of the risk viewed in a common sense and practical way. A risk will be the 
possibility of danger to health and safety, and not necessarily actual danger.14 The reference 
within s.789FD(2) of the FW Act to the effect that the definition of “bullied at work” does not 
apply to reasonable management action carried out in a reasonable manner is not an exclusion 
but a reference for the avoidance of doubt. The reference to reasonable management action 
carried out in a reasonable manner serves to provide guidance in the interpretation and 
application of s.789FD(1)(a) in circumstances in which it is alleged that management action 
such as performance management, disciplinary action, allocation of work, restructuring of the 
workplace and employer directions constituted bullying.15

CONSIDERATION OF MS BURBECK’S COMPLAINTS OF ALLEGED BULLYING

Ms Burbeck’s allegations generally

[22] As set out above, there are 6 main allegations of bullying which require consideration 
and determination.

[23] While Ms Wickham has since left the employment of ASTC and did not give evidence 
in these proceedings, the overall evidence before the Commission allows a finding that Ms 
Burbeck had some significant difficulties with Ms Wickham as her supervisor. She felt that 
Ms Wickham was insufficiently qualified to hold the position that she did and that in some 
respects she herself was more qualified. A significant part of the Commission’s dealing with 
this matter has involved an airing of those concerns, without practical resolution.

[24] Amongst her grievances, and by way of background for matters of timing and context 
for the bullying complaints she advances, Ms Burbeck thought that her own position should 
be reclassified, which was not agreed to by Ms Davison in April 2016 and she told Ms 
Davison she had concerns about reporting to Ms Wickham and another officer “as neither of 
them were formally qualified to supervise other staff”.16 Ms Burbeck’s witness statement to 
the Commission on the subject states:

“Georgina Davison disagreed with me and stated that she did not think formal 
qualifications were necessary in the position of Programs Team Leader. Georgina and 
I both agree that we were not speaking critically about Lynda Wickham personally or 
inappropriately, but about her role more generally.”17

[25] In May 2016 Ms Burbeck met with Ms Wickham, who appeared to relate to her some 
of the things that she had previously said to Ms Davison, which Ms Burbeck had regarded as 
a private discussion. Ms Burbeck says about this incident:

“10. … In addition to discussing our usual work matters, Lynda Wickham also 
commented on the information I had sent to Georgina Davison when I had emailed her 
to ask to meet with her. Lynda read aloud this email which I had sent solely to 

                                               
14 Re SB [2014] FWC 2104 [44]–[ 45].
15 Mac v Bank of Queensland Limited & Others [2015] FWC 774 [95].
16 Exhibit A1, Attachment B, [6].
17 Ibid.








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Georgina Davison and which related to the private discussion I had had with her. 
Lynda Wickham then attempted to illicit from me my thoughts on whether I was 
happy in my job and whether I had any issues I wanted to discuss with her.

11. I did not mention to Lynda Wickham the concerns I had expressed to Georgina 
Davison about her working in her role without a qualification. However, I discussed 
the stress and difficulties that my heavy work load was currently creating for me, and 
the difficulties I had in planning and preparing quality programs when I was given 
additional major tasks such as the Million Stories Project.

12. I also expressed to Lynda Wickham my desire to have my position reclassified as a 
librarian after I graduated from my degree. She stated to me that when she had 
completed the course of study which she had undertaken some years previously, she 
did not automatically get her position reclassified to a higher level. She had to wait 
until a position became available which she then applied for. I was surprised to hear 
this as I had understood that Lynda Wickham had dropped out of the technician’s 
diploma shortly after undertaking it. However, I did not question the veracity of Lynda 
Wickham’s claim about this at that time. Lynda Wickham discussed her own 
professional development at some length and it was clear to me that she was asserting 
that she had completed her course of study.

13. Lynda did not offer me any assistance in addressing the issues I had raised about 
my work load but instead tried to make the issues my fault by suggesting that I needed 
to learn to manage my time better by undertaking time management training. Lynda 
Wickham was apparently unaware that I had already undertaken this training during 
my time working in the library. Furthermore, I had been managing my time very 
successfully, delivering a large number of quality programs in for the ten years I had 
worked in the children’s and youth area and that I always received excellent feedback 
from library patrons and fellow staff on my work.

13. I discussed the new process of making project briefs, and shared something I had 
learned in studying project management at university. In response Lynda Wickham 
made an inappropriate comment to me indicating that she thought I knew more than 
other staff because I had been to university, claiming that I did not know more than 
other staff. Lynda Wickham also accused me of being patronising to her without 
supplying me with any details when I asked her how I had been patronising. She 
would not allow me to discuss the issue with her further. I later decided to speak to the 
library manager about this inappropriate behaviour.

14. This meeting went for approximately 1.5 hours and I felt stressed and exhausted 
afterwards. It seemed that the conversation went around in circles with Lynda 
Wickham trying to turn all the problems we discussed into my problems and not assist 
me.”18

Performance counselling – from June 2016

[26] A performance appraisal pro forma was completed by Ms Burbeck and provided to her 
manager, Lynda Wickham, on 15 June 2016 and was the subject of discussions between the 

                                               
18 Ibid, Attachment B.








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two and Ms Davison on 22 June 2016. Before Ms Burbeck met with the Council 
representatives, and after she had provided the pro forma to them, they had inserted in the 
document some feedback to Ms Burbeck both in respect of her own comments and matters 
they considered important to raise with her.

[27] Each of Ms Burbeck and the ASTC managers were unhappy in the discussion on 22 
June 2016 with what had been expressed in different parts of the completed pro forma. In 
addition, Ms Burbeck puts forward that she was upset by some of the feedback given in the 
meeting about her communication style, which she considered to be unjustified. Two parts of 
the performance appraisal form were identified as potentially the subject of unjustified or 
unreasonable criticism.

[28] The first matter dealt with Ms Burbeck’s consistency with what is referred to as a 
“personal” Council Value to the effect that “Council employees are adaptable, dedicated and 
demonstrate high personal integrity”. In response to the question “[w]ere you consistently 
punctual?”, Ms. Burbeck self-rated herself as “good” and commented “[s]ometimes I’m a 
little bit late but I stay after 5pm to make up for this. There are some days when I don’t finish 
until after 5pm anyway.” The feedback from the Management Representatives included an 
“unacceptable” grading and that “Kate needs to manage her time better. This includes 
consistently working a 7.6 hour day rather than using TOIL frequently. I also needed to insist 
that Kate came to work on a Wednesday at 8:30am as there were issues with being late for 
staff meetings. This instruction was followed.”19

[29] The second matter relates to Ms Burbeck’s consistency with the “internal” Council 
Value to the effect that “Council employees treat their fellow employees and the organisation 
with respect”. In response to the question “[d]id you communicate and work effectively with 
others in your unit?”, Ms Burbeck self-rated her alignment as “good”, making the comment “I 
share my ideas and communicate with my colleagues”. The Council’s managers’ response 
was that Ms Burbeck “needs work” and that “[s]ometimes Kate can come across as a little 
condescending. She does seem to try not to do this in meetings with whole of staff, however 
sometimes in one on one meetings she can come across this way. I’d like to see this improve 
in the coming year”.20

[30] The three participants discussed this feedback in the meeting, with Ms Davison 
endeavouring to use some things said by Ms Burbeck in the meeting as illustrations of the 
feedback she had given.

[31] A comment that Ms Burbeck had been consistently late with reports to the ASTC was 
withdrawn with the managers agreeing the statement was not accurate.

[32] Ms Burbeck, through her written comments, as well as in the discussion in the meeting 
used the appraisal as an opportunity to give feedback to her managers and the Council about 
things she saw as needing improvement in the library and which by all accounts had been 
concerns held by her for some time. These matters included the need for consultation with 
employees about decision-making and that without consultation she was hindered in her 
ability to run existing programs to a sufficient quality. She also gave opinions about the 

                                               
19 Ibid, Attachment E, p.2.
20 Ibid, Attachment E, p.4.








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library’s organisational structure. Ms Burbeck’s evidence is that she felt under attack and 
uncomfortable in the meeting.

[33] The product of the performance appraisal meeting was a view on the part of Ms 
Davison and Ms Wickham that Ms Burbeck needed greater supervision in the form of weekly 
meetings with Ms Wickham, as well as needing to undergo training on matters of 
communication and self-awareness. The former issue stemmed from Ms Davison’s belief that 
some of Ms Burbeck’s complaints about an unacceptably high workload may have stemmed
from poor time management and priority setting. The latter issue stemmed from the 
managers’ perceptions that Ms Burbeck could appear condescending and patronising in her 
communications to them and with other staff.

[34] Ms Davison’s evidence is that the need for these subjects to be addressed was not only 
identified in the meeting, but both were also agreed by Ms Burbeck as matters for action. 
While I accept the subjects were identified in the meeting, I do not accept they were agreed as 
matters for action. It is more likely Ms Burbeck was told that action was to be pursued on the 
subjects, with that being a course she did not actively oppose.

[35] At the conclusion of the meeting on 22 June 2016, Ms Burbeck was not told either as a 
result of the matters discussed in the performance appraisal meeting or for any other reason, 
that she would be required to be involved in a formal performance management process.

[36] Ms Davison says that she avoided that term. However, straight after the performance 
appraisal meeting finished she went to see the Council’s Human Resources Manager, Tony 
Jennison:

“25. During the performance appraisal Kate agreed to attend weekly meetings with 
Lynda to monitor her workload because Kate said her workload was too big. It was 
also to ensure she settled into the team and the new structure and improve Kate’s 
communication skills. It was not labelled as performance counselling or management 
because I did not want to frighten her.

26. When the performance appraisal meeting was complete, I went directly to Tony 
Jennison Acting Director Corporate and Community Services to discuss how the 
meeting had proceeded. I explained my concerns about Kate’s communication, not 
settling into the new structure and how we were planning to address these with weekly 
meetings between Kate and Lynda. Tony wrote on the performance appraisal ‘support 
performance management for Kate’ which may have been because I had labelled the 
weekly meetings ‘performance management’ without thinking. If so, this was an 
honest mistake on my part.

27. There was no collusion between anyone. There is no requirement for the CEO to 
have signed off on anything prior to organising these meetings. The words 
‘performance counselling’ were not used to describe these meetings; it was weekly 
meetings to ensure Kate is on track with her work - this was to avoid putting pressure 
on Kate or scaring her.”21

[37] Mr Jennison then wrote on the performance appraisal:

                                               
21 Exhibit R2, Witness Statement of Georgina Davison.








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“I concur with comments made by the Manager Library Services. Support 
performance management process for Kate”22

[38] The Alice Springs Town Council Enterprise Agreement 201523 (the ASTC Agreement 
or the Agreement) sets out the agreed basis for performance management of the Council’s 
employees. The Agreement makes a distinction between performance appraisal and 
performance counselling with the relevant definitions being as follows;

“B1 Performance appraisal system

Performance appraisal is an essential tool that is relevant at all levels of Council. It 
provides a means to build trust through open and regular discussions and improve 
organisational performance by linking individual, team and organisational objectives 
and outcomes. It also provides a means to define workplace expectations, recognise 
good performance and to manage performance issues, identify learning and 
development opportunities.”

“B2 Performance counselling

Performance counselling is used to address performance issues relating to an 
employee. Its objective is to assist the employee through appropriate training, 
coaching and/or mentoring.”

[39] Demonstrably the conversation between Ms Burbeck, Ms Wickham and Ms Davison 
on 22 June 2016 was consistent with the procedures set out within the Agreement for 
performance appraisal. The Agreement provides the following procedures for performance 
counselling:

“B2.1 Where a manager/supervisor has concerns relating to performance or the ability 
of the employee to conform with all requirements of their position description, the 
manager/supervisor will raise these concerns in an initial performance counselling 
session with the employee and, where appropriate, work with them to develop a 
performance improvement strategy against which progress will be monitored.

B2.2 At these meetings the following should be identified:

• areas where the employee has not demonstrated the required standard of performance 
or has not conformed with all requirements of their position description
• expected standards of performance or requirements of the position description
• strategies and support required to enable the employee to reach the required 
performance level, or conform with requirements of their position description 
including a time frame for improvement or conformance

B2.3 Should the performance management strategy be unsuccessful, action may be 
taken with the approval of the CEO. This action may take the form of:

                                               
22 Exhibit A1, Annexure E, p.10
23 AE417587.








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• demotion to a position reduced in classification and salary
• transfer to another position/department
• termination of employment

B2.4 Written notification of actions must be provided to the employee.”

[40] The decision taken by Ms Davison and/or Mr Jennison about the commencement of 
performance counselling of Ms Burbeck appears consistent with this clause.  A person under a 
performance counselling plan, as that term is used within the ASTC Enterprise Agreement, is 
not necessarily subject to disciplinary action, unless the processes set out in Clauses B2.3 and 
B2.4 are involved.  If those clauses are not invoked, the more appropriate description is that 
the employee is being managed in accordance with the standardised and agreed procedure set 
out within the Enterprise Agreement.

[41] Mr Jennison did not give evidence in these proceedings. Ms Davison’s evidence, 
elliptical in many matters, includes her giving several different responses to the same or 
similar questions and her recollection being unclear in parts. Despite Ms Davison being 
reluctant to term what she had put to Mr Jennison as being matters of either “performance 
counselling” or “performance management” and endeavouring to put forward the view that 
these were merely to be weekly meetings with Ms Burbeck to ensure she was on track with 
her work, I find that her intention was actually to initiate a formal performance management 
process in respect of Ms Burbeck. Ms Davison’s discomfort in using the terminology 
“performance counselling” or “performance management” is regrettable, and I have no doubt 
that it was her intention to put around Ms Burbeck’s performance a formal process by which 
she could be called to account in the event there was no or insufficient change.

[42] On its own though this decision by Ms Davison and supported by Mr Jennison is not 
unreasonable conduct on their part and is instead reasonable management action carried out in 
a reasonable manner. Plainly, at the time each made their decision they had some concerns 
about Ms Burbeck’s capacity to perform to the required standard on the two subjects referred 
to. It can hardly be unreasonable on the part of either of them or the ASTC to put in place the 
process they did. While Ms Davison’s discomfort in using the terminology “performance 
counselling” or “performance management” may be regrettable, as well as hardly best 
practice, the avoidance of clear and specific communication to affected employees about their 
decisions is nonetheless a common fault found in many frontline managers.

[43] Because the decision by the ASTC to commence performance counselling of Ms 
Burbeck is not unreasonable conduct on the part of the Council or any person and is instead 
reasonable management action carried out in a reasonable manner, it is not conduct that would 
lead to a finding of bullying within the meaning of s.789FD(1) of the FW Act.

Initiation of disciplinary meeting in relation to Ms Burbeck’s response to the “respect” email 
– 23 June 2016

[44] On 23 June 2016, Clare Fisher, the Library Operations Team Leader, sent an email to 
a number of employees about what she regarded to be “a slip in the amount of respect shown 
between some team members”. The email was sent at 11:20 AM and comprised the following:

“Hi all,








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I’m a little disappointed that l have to say this, but I’ve noticed lately that there seems 
to be a slip in the amount of respect shown between some team members.

1. Check the way you talk to people - even if you don’t intend to, are you coming 
across as patronising? Rude? Pushy? Disrespectful?

2. Do you communicate with each other the same way you would with your Team 
Leaders or Manager? Everyone deserves the same level of respect - irrespective of 
employment level, age or education.

3. If a team member is trying to teach or share some knowledge with you, please listen 
with respect and take it on board.

4. If YOU are imparting knowledge to another team member, don’t use patronising 
language or belittle them. No one will learn while being made to feel insignificant.

5. Remember that everyone learns at different rates and in different ways - the way 
YOU learn, is not necessarily the way THEY learn and there is no right or wrong, just 
different.

Any negative feelings towards each other should not be brought to the work 
environment - let’s build each other up instead of tearing people down.

Respect is a two-way street - you give it to get it - so choose your attitude, be patient 
and understanding with others and let’s all enjoy and be thankful we have such a 
wonderful workplace and colleagues.

Clare

Clare Fisher
Library Operations Team Leader
Alice Springs Public Library”24

[45] About an hour later Ms Burbeck replied to Ms Fisher and all those who had received 
the original email as well as copying Mr Jennison into her reply, with her email responding as 
follows:

“Hi Clare,

                                               
24 Exhibit A1, Attachment H.


RESPECT ALL THE PEOPLE




 



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While I strongly agree with you about the importance of respect and good 
communication, in particular, being positive rather than negative, I think it’s important 
to deal with specific issues directly, with the people involved or concerned, wherever 
possible. Buy this I mean that if someone has made a complaint to you, or to their 
supervisor, it will be brought to the attention of the person accused of being rude or 
patronising, and it can be appropriately addressed. Furthermore, this process ensures 
that other staff members who have not behaved thus are not left wondering if perhaps 
they have accidentally offended someone or been misinterpreted. Furthermore, by 
communicating directly, and following appropriate procedures, the process allows for 
fair and open communication, and for the person has been accused of behaving in an 
offensive way to have the opportunity to reply to the accusations, and possibly refute 
them.

Alternatively, if no one complains, or no one is spoken to directly about offensive 
behaviour, staff can continue with their work as usual without having to be concerned 
that something they’ve said or done has been misunderstood or upset someone.

In line with this, and in the interests of good communication within the library, I will 
mention that recently, I’ve been told that my behaviour has been found to be 
patronising. I know who this issue is with, all parties have had an opportunity to 
address it, and I’ve refuted the claims.

I am curious to know how these issues came to your attention, and if you intend to 
raise them with the people whose behaviour you to found to be inappropriate.

I hope this does not come across as patronising, rude or demeaning, but rather, in the 
spirit in which is intended: to promote honest, open, effective communication which 
demonstrates respect and concern for everyone and their wellbeing.

Thank you,

Regards,

Kate Burbeck
Children’s and Youth Services Officer
Alice Springs Public Library”25

[46] Shortly after receiving that email, Ms Fisher responded again with her own email 
asking the team to disregard Ms Burbeck’s email which she considered to be an unrelated 
issue. Her communication comprised the following:

“Hi team,

It may be difficult, but please disregard the below email from Kate - this is an 
unrelated issue.

                                               
25 Ibid.








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14

Please rest assured, my initial email was only meant as a reminder to ALL of us, to 
keep the positive team spirit and support happening - especially in the rather trying 
times we’ve had lately.

My intention was not to upset or make people feeling guilty, I just want us all to be 
mindful when communicating with each other. We have such a diverse group of 
people working here and each and every one of you bring something wonderful to the 
team - I would much prefer that we focus on those positives, than dwell on negatives.

Thank you all for your continued support and effort - I’m thankful every day I made 
the move to Alice 

Please come and see me if you have any concerns.

Clare Fisher
Library Operations Team Leader
Alice Springs Public Library”26

[47] Later the same day Ms Burbeck was provided with a letter from Ms Davison calling 
her to account for her earlier email. The letter alleged that Ms Burbeck had contravened the 
Council’s Code of Conduct and that it was the second time this year that she had 
demonstrated similar contravention. She was required to attend a meeting between Ms Fisher 
and Mr Jennison to answer the allegation. Ms Davison’s letter consisted of the following:

“Dear Ms. Burbeck

WORKPLACE COMMUNICATION

On Thursday 23 June 2016 Operations Team Leader Clare Fisher sent an email to all 
Library staff regarding communication and respect. Your response to this was to email 
your views on this issue to all of the Library staff.

This action is in direct contravention of Section 4.4 Council’s Code of Conduct which 
states:

An employee must behave in a professional manner in the course of carrying out their 
duties which includes treating a fellow employee and all those in the workplace with 
courtesy, dignity and respect at all times.

This is the second time this year you have demonstrated similar inappropriate 
behaviour. On the 26 April 2016, you were warned and made to apologise by me, 
regarding an inappropriate email you sent to Yarra Libraries.

In order for you to provide an explanation regarding this important issue, you are 
requested to attend a meeting between Clare Fisher and Manager, Human Resources 
Tony Jennison in the CCS meeting room at 9.00am on Monday 27 June 2016.

As this matter may be of a serious nature, disciplinary action could result.

                                               
26 Ibid.








[2017] FWC 4988

15

You therefore have the opportunity to be accompanied by a relevant union 
representative or support person.

Yours faithfully,

Georgina Davison
Manager, Library Services”27

[48] Ms Fisher’s witness statement does not address directly the subject of how the matter 
came to move managerially between her last response to all recipients including Ms Burbeck 
at 1:47 PM and the letter being issued by Ms Davison to Ms Burbeck later that day. Ms 
Davison’s witness statement also does not address the detail of the managerial response 
between the two points. Ms Davison in her witness statement cavils with the proposition that
this was a disciplinary letter:

“31. There was no disciplinary letter issued to Kate on 23 June 2016: it was an 
invitation to attend a disciplinary meeting. After Kate had sent her reply to Clare’s 
email and copied Tony Jennison into the email, Tony emailed and phoned me to 
advise me that Kate’s email was inappropriate. (I had not seen the email at that stage.) 
I read the email and then discussed with Tony what action we should take. We decided 
that we should have a disciplinary meeting with Kate to address her communication 
style. I was on holidays at the time of the meeting on 29 June 2016.”28

[49] The response that this was no disciplinary letter is not only counterfactual but also not 
consistent with the meaning of the correspondence within the context of the procedures set 
out within the ASTC Enterprise Agreement. Clause C2 .1 of the Agreement provides:

“C2 Disciplinary meetings

C2.1 When a manager/supervisor has concerns relating to breaches of policy or the 
inappropriate behaviours of an employee a disciplinary meeting will be arranged to 
include:

• employee
• manager/ supervisor
• HR department
• subject to availability, a relevant union representative or employee support person 
(unless waived by the employee)”

[50] Although the Council’s Code of Conduct is not called up with in the Enterprise 
Agreement it plainly must be regarded as a “policy” for the purposes of clause C2.1.
Respectfully, a letter to a Council employee that alleges they have been “in direct 
contravention” for the second time of the Council’s Code of Conduct; that they are required 
“to provide an explanation regarding this important issue”; and that because the “matter may 
be of a serious nature, disciplinary action could result” can be seen in no other way than as 
being a disciplinary letter.

                                               
27 Ibid, Attachment G.
28 Exhibit R2.








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16

[51] The letter was and must reasonably be viewed as a “disciplinary letter” and it is 
disingenuous to endeavour to cast it in another light.

[52] The allegation is made in the 23 June 2016 letter that Ms Burbeck contravened clause 
4.4 of the Council’s Code of Conduct. The relevant part of the Code, referred to above in Ms 
Davison’s letter, casts an obligation on employees to observe certain standards of personal 
conduct including the element referred to, which is within Clause 4.4, entitled “Bullying”.
The part of the clause referred to within the 23 June 2016 letter omits the important sentence 
immediately before it which provides context to the quoted sentence by providing a definition 
of “bullying behaviour” and an expectation that employees behave in a professional manner. 
To the extent that the sentence quoted in the Code is an elaboration of what is bullying, it is 
doubtful that Ms Burbeck’s behaviour in sending the email would meet the defined standard. 
In addition, some further context is given by the other parts of the wider Clause 4, which is as 
follows:

“4. Standards of Personal Conduct

An employee will observe the following principles of conduct:

4.1 Selflessness
An employee must not act in order to make financial gain or other benefits for 
themselves, their families or their friends.

4.2 Integrity
An employee must not:

• be influenced in the performance of their duties by any financial or other obligation 
that they might have in a private capacity to individuals or organisations; or
• act for an improper or ulterior purpose or on irrelevant grounds.

4.3 Objectivity

Matters being considered by an employee should be dealt with consistently, promptly 
and fairly. This involves dealing with matters in accordance with approved 
procedures, in a non-discriminatory manner, and in conformity with natural justice. 

When using any discretionary powers, an employee should ensure that they take all
relevant facts into consideration, have regard to the particular merits of each case, and 
not take irrelevant matters or circumstances into consideration.

4.4 Bullying

An employee will not engage in bullying behaviour, that being unreasonable 
behaviour, both obvious and hidden, that intimidates, humiliates or causes harm to an 
individual or group within a workplace.

An employee must behave in a professional manner in the course of carrying out their 
duties which includes treating a fellow employee and all those in the workplace with 
courtesy, dignity and respect at all times.








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17

4.4.1 Behaviour towards others generally

An employee must:

• efficiently and politely serve the public and Council customers;
• treat members of the public fairly and equitably and with respect, courtesy, 
compassion and sensitivity;
• treat an elected member of Council (Member) with respect and dignity;
• not misuse their position to influence others in order to gain an advantage for 
themselves or others;
• refrain from any form of conduct, in the performance of their duties, which may 
cause any reasonable person unwarranted offence or embarrassment or undertaking 
improper conduct or partial performance of their public duties;
• not act in relation to others in a manner that is unreasonable, unjust, oppressive or 
discriminatory; and
• at all times conduct themselves in a manner which maintains and strengthens the 
public’s trust and confidence in the integrity of the Council and must never undertake 
any action which will bring the Council, employees or Members into disrepute.

4.5 Openness

An employee should be open and clear about all the decisions and actions that they 
take.”

[53] The remaining parts of the clause are not relevant to this decision.

[54] Following the issuing of the disciplinary letter, a meeting was held on 29 June 2016 
between Ms Burbeck, with Mr Turner on her behalf and an ASU representative by phone, Ms 
Fisher and Mr Dennison. Ms Fisher records the conduct and outcome of the meeting as 
follows:

“19. Kate was reluctant to answer direct questions about her motive and why she 
hadn’t sought clarification of the issue prior to the meeting. Tony then suggested a 
short break so he and I could discuss Kate’s written response and actions that may be 
implemented by Council. Before leaving the room, the ASU representative asked that 
no disciplinary action be taken against Kate.

…

21. Once the meeting reconvened, Tony explained we were eager to reach a positive 
outcome due to Kate’s 10 year working history with Council. He then explained that at 
this stage, Council would not be undertaking any disciplinary action, but we required 
the following outcomes from Kate:

• an apology to myself regarding Kate’s inappropriate email
• participation in performance counselling sessions regarding Kate’s communication 
style”29

                                               
29 Exhibit R3, Witness Statement of Clare Fisher.








[2017] FWC 4988

18

[55] There is nothing within Ms Burbeck’s email which could be regarded as 
“unreasonable behaviour, both obvious and hidden, that intimidates, humiliates or causes 
harm to an individual or group within a workplace”, being the test established by the Code of 
Conduct. The high point of the complaint about her email appears to be that she used the 
words:

“In line with this, and in the interests of good communication within the library, I will 
mention that recently, I’ve been told that my behaviour has been found to be 
patronising. I know who this issue is with, all parties have had an opportunity to 
address it, and I’ve refuted the claims.

I am curious to know how these issues came to your attention, and if you intend to 
raise them with the people whose behaviour you to found to be inappropriate.”

[56] It could be that by using the words “I know who this issue was with” that the 
communication might somehow cause alarm to whomsoever that person was; however there 
is nothing within Ms Burbeck’s words or any of the evidence which would give rise to the 
view that the words were somehow a threat. While such a person might have some level of 
alarm, identification of a complainant is hardly something unknown to the nature or 
progression of workplace complaints. People who make complaints in the workplace about 
others of an attitudinal, skill or behavioural nature must inevitably expect the person about 
whom they complain to either know or suspect where the complaint came from. It would be
an unusually vulnerable person who felt threatened by Ms Burbeck’s language as set out in 
her 23 June 306 email.

[57] None of the evidence of any of the Persons Named in this matter would support a 
finding that Ms Burbeck’s communication by email on 23 June 2016 was in contravention of 
any part of the Council’s Code. That much should have been obvious to Ms Davison and 
anyone else who advised on the decision to write the disciplinary letter. As a result, the 
disciplinary letter from Ms Davison must be regarded as likely retaliatory and punitive for an 
action from a staff member that was considered perhaps to be annoying, unwarranted, or 
misguided. Consequently, it cannot be regarded as reasonable management action carried out 
in a reasonable manner.

[58] The finding is therefore open to the Commission that Ms Davison’s letter of 23 June 
2016 which initiated a disciplinary meeting in relation to Ms Burbeck’s response to the 
“respect” email of the same day was unreasonable conduct and was not reasonable 
management action carried out in a reasonable manner, which is a foundation element for a 
finding of bullying within the meaning of s.789FD(1) of the FW Act.

ASTC’s dealing with two workplace grievances lodged by Ms Burbeck in July 2016

[59] During July 2016 Ms Burbeck lodged with the Council two grievances separately 
pertaining to Ms Wickham and Ms Davison. The two written grievances were left on Ms 
Davison’s desk on 19 July 2016. Ms Davison says that she did not read either of the letters 
and instead took them directly to the Council’s human resource staff.30

                                               
30 Exhibit R2, [33]; Exhibit A1, [16].








[2017] FWC 4988

19

[60] Ms Davison’s opinion is that the grievances had been lodged by Ms Burbeck since 
“she did not want to attend the performance counselling sessions” that had been arranged by 
that time.31

[61] The first grievance appears to have been lodged by Ms Burbeck on 8 July 2016 and 
relates to an allegation about Ms Wickham and things she said in the course of a meeting on 
22 June 2016 that Ms Burbeck in any event did not attend. Ms Burbeck had discussed with 
Ms Wickham the fact that staff had not been noting holiday program bookings on the 
appropriate booking sheet:

“Prior to this meeting, on the same morning of the 22nd June 2016, I had gone to the 
information desk and opened the school holiday program booking folder. In doing so, 
a handwritten note had fallen out of the folder. The note contained information 
regarding a patron’s request to book children into holiday program activities, and the 
patron’s contact details. I checked the programs that the note referred to and I saw that
the patron had not been booked into the activities as per the information on the note. I 
then phoned the patron and confirmed that they wished to be booked into the activities 
referred to on the note. I then booked them into the activities. The note was not signed 
by a staff member so I did not know who had written it. Shortly after this Danielle 
Schaeche arrived at the information desk and when I asked her whose handwriting she 
thought was on the note, she indicated it was Jerry’s. 

Danielle left the information desk and shortly afterwards Lynda walked past. I 
explained to Lynda how I had found the note, that I had called the patron and that I 
had booked the patron’s children into the activites, but that I was concerned that 
someone had not completed the booking properly. I also told Lynda that someone had 
informed me that it was Jerry’s handwriting on the note. I asked Lynda if she would 
try to resolve the problem as my supervisor, and my expectation was that she would 
speak directly with the person who had left the note, if possible.”32

[62] Apparently Ms Wickham had undertaken to raise this matter in the operational team 
meeting on 22 June 2016 together with advice about the need for staff to follow the 
appropriate procedure. The allegation made by Ms Burbeck is that Ms Wickham lied in the 
meeting about the problem which had arisen, saying something to the effect of “that because 
of people not following correct procedures, kids had missed out on participation in the 
programs”.33 Ms Burbeck says that Ms Wickham had told her that she had told a “white lie”
in the meeting. The “white lie” is said to be the claim that “kids had missed out”, when in 
actuality no child had missed participation in the program. Ms Burbeck was greatly concerned 
that it would be obvious to those participating in the meeting not only that the information 
was a lie, since no one had missed out but also that its source would be seen as her by those in 
the meeting.

[63] This first grievance from Ms Burbeck was considered by a panel of people including 
Ms Price and Ms Gosling. Ms Price had only come to her position of Director Corporate and 

                                               
31 Exhibit R2 [34].
32 Exhibit A1, Attachment C.
33 Exhibit R5, Respondent’s Further Bundle of Documents, Attachment 10.








[2017] FWC 4988

20

Community Services on 18 July 2016. She and Ms Gosling met with Ms Burbeck on 21 July 
as well as interviewing a number of other people, including Ms Wickham.34

[64] The outcome of the investigation of the first grievance was communicated to Ms 
Burbeck in a meeting held on 29 July with the following set out in a note sent to Ms Burbeck 
on 2 August 2016:

“In response to the grievance dated 1 July 2016 the panel found that in the staff 
meeting referring to the incident regarding the holiday program booking process, 
Lynda did not use any staff names. Therefore Kate’s claims relating to the damage to 
her reputation are unsubstantiated.

Further, no bullying claim could be substantiated. Kate made reference to a meeting 
which she did not attend. Her claims on what occurred at that meeting are hearsay.”35

[65] The second grievance lodged by Ms Burbeck related to the conduct of the 
performance appraisal meeting in June 2016. This matter also was investigated by the Council 
using the same process as referred to immediately above. The outcome report on the second 
grievance was in the following terms:

“Kate made several claims regarding her performance appraisal which was conducted 
on 12 June 2016.

The appraisal meeting was conducted by Georgina who had been Kate’s supervisor for 
the majority of the past 12 months. Lynda was, as Kate’s current supervisor also
present during the meeting. The panel found that the performance appraisal process 
was conducted in a compliant manner and that it was not utilised as a disciplinary tool 
as claimed by Kate.

It is apparent that Kate’s time management has an opportunity for improvement. 
Evidence of this can be seen from the late submission of her performance appraisal. It 
was due 3 May 2016 and was submitted by Kate to her supervisor on 15 June 2016 
(after returning from Long Service Leave on 1 April 2016 Kate was absent only on 13 
and 26 April 2016 as well as 16-18 May 2016 due to illness).

The claims of slander and defamation as well as bullying through Kate’s performance 
appraisal could not be substantiated.

Officers have a responsibility to respect the views of others in particular their 
supervisors even if they do not agree with them.

A difference of opinion does not constitute bullying. Furthermore, constructive 
feedback about opportunities for improvement in a formal performance appraisal 
meeting does not constitute slander and defamation. Discussion related to 
opportunities for training, mentoring and support are routinely discussed during all 
performance appraisals.

                                               
34 Exhibit R4, Witness Statement of Skye Price, [4] – [6].
35 Exhibit A1, Attachment J.








[2017] FWC 4988

21

Kate’s concept of the performance appraisal process has identified an opportunity for 
Council’s performance appraisal template and guidelines to be reviewed.”36

[66] Ms Price recalls in connection with this allegation that Ms Wickham had 
acknowledged to those investigating the complaint that she had done the wrong thing,
however, in deciding whether to sanction Ms Wickham, Ms Price took into account that there 
had been no attribution to an individual staff member of the claim that “kids had missed out”. 
Ms Price’s witness statement on the subject relates the following about the outcome meeting:

“7. Later, 29 July, a summary of claims was prepared. Subsequently, Kate was invited 
to attend a grievance outcome meeting 2 August, from 1:00pm, until 2:00pm. Kate 
approached the meeting in a combative manner. Kate did not enable me to provide her 
with advice about the outcome of her grievances. Instead, she was intentionally 
aggressive and somewhat conceited in her approach. Kate was courteously thanked for 
her attendance at the meeting and politely provided with a written summary of the 
grievance outcomes. I suggested to Kate that she might like to read the written 
summary and she took the opportunity to do so.

8. Kate was visibly dissatisfied when she concluded perusing the document. Kate was 
focussed upon the subject of Lynda Wickham’s qualifications and raised other matters, 
too. I advised Kate that we were respectful of privacy legislation and that if she has an 
interest in the qualifications of individual staff members that she should discuss them 
directly, with the individual concerned. I reiterated to Kate that Human Resources 
would not be providing information relating to other staff members. Kate interrupted 
me on more than one occasion when I was part way through a sentence.

9. During the meeting Kate was extended the opportunity to speak freely. She went 
back over her grievances and sought to revisit elements of the grievances. In some 
instances Kate provided definitions of bullying, in an authoritative manner. Kate was 
permitted to methodically raise all of the things that she wanted to share about the 
elements of the grievances. When she had concluded, she was reminded that an 
investigation had been completed.”37

[67] A review of these two grievances and the process by which the Council considered 
them does not disclose any inappropriate or unreasonable handling. There is nothing within 
the process by which the matters were considered or decided upon which would disclose 
unreasonable conduct by any person toward Ms Burbeck.

[68] The outcome in respect of the first grievance is logical in the circumstance. Ms 
Burbeck had not been in attendance at the meeting and was not in a position to directly 
identify what may or may not have been said in the meeting. The information which the 
Council took into account included material from people who had been directly involved in 
the meeting. There is nothing within the material before the Commission which would 
suggest that the Council should not have accepted the direct evidence of those in attendance.
Further, even had it accepted Ms Burbeck’s contention that somehow comments made in the 
meeting were obviously referable to her, it would be well within the bounds of reasonable 
decision-making to conclude that the conduct complained about and its potential breach of 

                                               
36 Ibid.
37 Exhibit R4.








[2017] FWC 4988

22

accepted norms of behaviour in the Council was of a very low level and that no further action 
was required in relation to the complaint.

[69] There is no unreasonable conduct on the part of the ASTC in respect of Ms Burbeck in 
relation to her first July grievance. The actions of the ASTC in relation to the grievance were 
reasonable management action taken in a reasonable manner.

[70] The outcome in respect of the second grievance is similarly logical in the 
circumstance. The complaint is, within the context of my analysis of the performance 
appraisal meeting set out above, without foundation. There were behaviours on the part of Ms 
Burbeck that required correction through some mechanism. The Council was within its rights 
to require that be done within the performance counselling processes of the Enterprise 
Agreement. In the material Ms Burbeck provided to the Commission about this grievance she 
sets out at some length her contention that being told that her demeanour could be viewed as 
condescending by some amounted to defamation on the part of the person communicating that 
information to her:

“We discussed this point at some length. I asked Georgina what she was referring to 
with this comment. She told me that another staff member (she would not say who it 
was) had told her that I had been patronising to her. Georgina told me she thought I 
would benefit from some sort of selfawareness training, so I could become more aware 
of how I come across to others. I said that being patronising was a very subjective 
accusation, and that it was a matter of perception, not an objective evaluation of my 
performance. She said that it was her prerogative to put her opinion into my 
performance appraisal. I disagreed that the allegations had been substantiated. 
Georgina told me that during the meeting that we’d had to discuss my role, she 
recalled that I’d been patronising to her then also. She repeated some things she 
vaguely remember that I’d said, mimicking my assertive tone at the time. She claimed 
that it was partly because I’d used her name that she thought I’d been patronising. 
When I said that was just her perspective, she asserted firmly that it was the ‘reality’. I 
said firmly, ‘‘no, Georgina, it’s subjective”. She then said ‘See! See! (pointing at me) 
you’re doing it now! She then looked at Lynda for confirmation of this allegation. I 
signed the performance appraisal with the caveat that I wrote a comment on it stating 
that Georgina’s comment about me being condescending was subjective and 
unsubstantiated, and such issues or complaints against me would be better addressed 
using appropriate methods. This comment about me is a defamatory, ad hominem 
attack on my character and it is damaging to my professional reputation. That it 
remains written on my performance appraisal constitutes defamation. Furthermore, if 
someone is telling other staff members that I have patronised them when this is an 
untrue statement which damages my reputation, and if Georgina is furthering this 
allegation without seeking evidence to substantiate it or refute it, both Georgina and 
the third party are guilty of slander”38

[71] While that may be her view, it was apparently equally the view of those conducting 
the performance appraisal that there was some level of condescension exhibited on occasion 
by Ms Burbeck to others. Her supervisors were in a position to objectively assess that and 
communicate their concern to her. The fact that they did so is within their right as well as 
obligation to raise. An employee seen as being condescending to others may well not be 

                                               
38 Exhibit A1, Attachment F.








[2017] FWC 4988

23

complying with the relevant standards of workplace behaviour. It must be borne in mind that 
by the time of the performance appraisal Ms Burbeck had some apparent difficulty with Ms 
Wickham, whom she thought was underqualified, particularly in comparison with her own 
qualifications. Rather than attacking this feedback as being slanderous or defamatory Ms 
Burbeck may have been better advised to seek details of what was considered to be the 
condescending behaviour and accept that some change may be required in her communication 
style.

[72] In the overall context of the evidence before the Commission as well as considering 
the state of relationships between all concerned, Ms Burbeck’s complaint that what had been 
said to her in the performance appraisal meeting amounted to “slander and defamation as well 
as bullying” is nothing more than overstated rhetoric. There is no evidence that anything said 
in the meeting fits the definition of any of those terms.

[73] There was no unreasonable conduct on the part of ASTC in respect of Ms Burbeck in 
relation to her second July grievance. The actions of the ASTC in relation to the grievance 
were reasonable management action taken in a reasonable manner.

[74] Because the Council’s actions in relation to both of Ms Burbeck’s grievances were not 
unreasonable conduct on the part of the Council or any person and is instead reasonable 
management action carried out in a reasonable manner, it is not conduct that would lead to a 
finding of bullying within the meaning of s.789FD(1) of the Act.

The First Allegations Letter – 12 October 2016

[75] On 7 October 2016 Ms Davison reported hearing Ms Burbeck speak in a raised voice 
to Ms Wickham who was still at that time her supervisor. Ms Davison’s evidence on the 
subject includes:

“36. I was in my office when Kate was speaking over the top of and raising her voice 
at Lynda Wickham regarding her work. I heard Lynda say ‘Kate it’s your job’ and 
mentioned about time management and planning. Kate kept repeating herself loudly 
and speaking over the top of Lynda and Lynda stopped speaking. She ended the 
conversation by saying ‘righto Kate’. I was just about to get up and intervene as Kate 
was very disrespectful to Lynda.

37. I asked Kate to meet with me at 4pm on that day to discuss the incident that had 
occurred in the morning. Kate had indicated that she wanted a support person with her 
which I initially agreed to. I then spoke with Skye Price about Kate having a support 
person and she advised me that it was not necessary as it was not a disciplinary 
meeting, simply a meeting to discuss the incident. I went to meet with Kate and said 
that she would not need a support person to which she replied ‘it’s my right’.

38. I asked her to come with me into the multi-purpose room as I would not discuss in 
a public forum. I said to Kate again that I would not allow a support person to be there. 
She said she has had legal advice saying that she should have someone each time there 
is a meeting. She said, ‘well I may not have anything to comment on if I can’t have 
someone here’. I said, ‘I still need to speak with you about it now’ and she sat down.








[2017] FWC 4988

24

39. I explained to Kate that all staff need to be respectful and courteous toward all 
staff members to comply with the code of conduct. I then said staff also need to adhere 
to requests and directions from supervisors. Kate said, ‘I wasn’t disrespectful or rude, I 
didn’t raise my voice and I didn’t talk over the top of her, she talked over the top of 
me’. I said, I heard you Kate, you were raising your voice and talking over the top of 
her. You weren’t listening to what she was saying but talking over the top of her’.

40. Kate complained that ‘Lynda breached her right to privacy by saying ‘this is what 
she meant by time management”. I stated that I didn’t hear that. I said, ‘that is a 
separate issue, I’m currently addressing the fact that you were rude and disrespectful 
when you spoke to Lynda.’ Kate talked over the top of me a couple of times and I said 
to her, ‘you’ve just done it to me, you spoke over the top of me’. Kate then stopped 
and sat quietly.

41. When I had finished speaking, she paused a little and said, ‘have you finished? I’m 
just checking so you don’t accuse me of talking over the top of you’. She did this each 
time I finished speaking from then on in an extremely sarcastic way.

42. Kate said, ‘if I was disrespectful or rude I had every right to be because she 
breached my confidentiality and that’s a serious matter that I won’t be letting go’. I 
said, ‘just to clarify, you are saying that you weren’t rude of disrespectful but if you 
were that it was Lynda’s fault’. Kate said, ‘I’m saying that she has no right to breach 
my confidentiality’. Kate said, ‘you do whatever you want with this Georgina, I’m not 
letting this go, it’s a serious matter’. I said, ‘don’t tell me what to do please’. Kate 
said, ‘I’m just saying you can do whatever you like with this’. I said, ‘I’m going to 
have to decide where to go from here’.”39

[76] Following this event a request was sent to Ms Burbeck to attend a disciplinary meeting 
on 17 October 2016, however the meeting did not take place because Ms Burbeck left work in 
the course of 12 October 2016 and at the time of the hearing had not returned since that 
time.40

[77] As a consequence, an allegations letter was sent to Ms Burbeck on 12 October 2016 
(the First Allegations Letter). The relevant part of letter set out the following:

“Dear Ms Burbeck,

On Friday 7 October 2016 you were overheard by your Manager Georgina Davison 
speaking in a raised voice to your supervisor Lynda Wickham, in the presence of 
another staff member.

This is a breach of the Section 4.4 of Council’s Code of Conduct which states:

An employee must behave in a professional manner in the course of carrying out their 
duties which includes treating a fellow employee and all those in the workplace with 
courtesy, dignity and respect at all times.

                                               
39 Exhibit R2.
40 Ibid, [45].








[2017] FWC 4988

25

This is the third time this year you have demonstrated similarly inappropriate 
behaviour. On the 26 April 2016 you were cautioned and directed to apologise to 
Yarra Libraries concerning the inappropriate e-mail you sent them; and then on 23 
June 2016 in response to an e-mail from Clare Fisher regarding workplace 
communication and respect, you also received a written warning.

With this incident being the third breach of the Code of Conduct in less than six 
months, Council deems this as being a breach of section C3 pertaining to Serious 
misconduct, of the Alice Springs Town Council Enterprise Agreement (2015).

Section C3.1 of the Enterprise Agreement states:

Serious misconduct may result in the immediate termination of employment or other 
serious disciplinary action when proven.

Serious misconduct has its ordinary meaning and includes:

• wilful or deliberate behaviour by an employee that is inconsistent with the 
continuation of the contract of employment

In order for you to provide an explanation regarding this serious issue, you are to 
attend a meeting between yourself, Director CCS Skye Price, Manager Library 
Georgina Davison, and Acting Manager Human Resources Alan Riley in the CCS 
Meeting Room of the Council Civic Centre at 10 am Monday 17 October 2016.

As this matter is of a serious nature, disciplinary action could result.

You have an opportunity to be accompanied by a relevant Union representative or 
support person.

Yours sincerely,

Skye Price
Director Corporate & Community Services”41

[78] Having received this correspondence Ms Burbeck’s Union, the ASU, advised Ms Price 
that the letter was in error when it referred to a warning having been received previously.42

Ms Price’s response to the communication, given on 20 October 2016 was brief and to the 
point, including that correspondence to Ms Burbeck on 29 June 2016 “stipulates in closing, 
‘This letter will be placed on your personal file. Any further work performance issues of this 
nature may lead to more serious action being taken by Council’”.43 Having received that 
response the ASU took the matter up again on 21 October 2016 putting forward that a 
warning had not previously been provided to Ms Burbeck.44 The issue of whether or not there 
actually was a warning was resolved in the Council’s outline of submissions, in which it was 

                                               
41 Exhibit A1, Attachment N.
42 Exhibit A1, Attachment Q.
43 Exhibit R5, [15].
44 Ibid.








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26

indicated the reference was in error and that an amendment would be made on Ms Burbeck’s 
personal file to that effect.45

[79] Ms Burbeck puts forward about the incident on 7 October 2016 that she believed Ms 
Wickham exhibited inappropriate behaviours herself and that at the end of the day she 
forwarded this email to Ms Wickham as well as Ms Davison:

“Hi Lynda,

This morning I spoke to you about the 6-12s Club program and Young Writers Club 
Program and told you that it would be difficult for me to have these programs ready by 
the end of the day, due the busy week I’d had with the school holiday program, having 
arrived back at work after 4 weeks of leave during September, and that this was a 
potential issue that I fore seen in August and I had mention it to you at that time, at our 
one on one meeting. These programs are usually prepared in this sort of time frame 
and it is not usually an issue. It is done this way in order to accommodate requests 
from the participating children regarding planning for the next term’s program.

You responded by saying ‘this is what I mean about your time management, Kate’. 
This was said loudly in a public area in front of other staff members and was a breach 
of my confidentiality, as it pertained to issues regarding my performance counselling.

I believe this comment was inappropriate and I’m seeking an explanation and apology 
from you regarding it.

Regards,
Kate Burbeck”46

[80] Ms Burbeck’s recollection of the overall incident includes that the discussion was not, 
in her view, “an argument”. Despite it not being an argument, she is nonetheless critical of Ms 
Wickham’s conduct toward her:

“On Friday 7th October 2016, at midday, I spoke to my supervisor Lynda Wickham in 
the shared staff room. I gave her my planned children’s programs for the next school 
term and and explained that I would be unlikely to have time to finish some remaining 
promotional and booking form tasks associated with the program before the Monday 
of the next week.

She said she was dissatisfied that these tasks would be delayed until Monday.

I explained that I’d had a very busy week, having just returned from 4 weeks leave 
prior to that week, and had been busy running the school holiday program. I told her 
that I had another school holiday program activity on that afternoon, and as such, I 
would only have about 1 hour to do the remaining tasks that day.

She then stated in a loud voice, within the presence of other staff members “this is 
what I mean about your time management, Kate”.

                                               
45 Exhibit R1, Respondents’ Outline of Submissions, [29].
46 Exhibit A1, [22]; Attachment P.








[2017] FWC 4988

27

This public criticism by Lynda referred to the outcomes of my performance appraisal 
and my pending performance counselling, and as such, it was a breach of my privacy 
and a breach of Council’s code of Conduct.

I responded in a firm and assertive manner, stating that this issue was not caused by a 
deficiency with my time management, but rather, by me having too little time to do the 
tasks in that week. I reminded her that I had already notified her of this potential 
difficulty in getting these tasks done in that week, at our fortnightly meeting in 
August, before I went on leave. I then suggested to her that it may be a good idea in 
future to have another staff member assist with such work if I’m on leave, to make 
sure it is done in time.

Lynda then said to me that these tasks were my job, and my responsibility alone.

I began to explain that I have other tasks in my job than just providing programs, as I 
also provide customer service, which involves answering the phones and providing 
other assistance to the public.

However, I was unable to finish this sentence, because Lynda spoke over the top of 
me.

This conversation was not, in my view, an argument, and I did not raise my voice or 
speak over the top of Lynda.”47 (underlining added)

[81] Evidence given to the Commission includes that the Council did not do anything about 
Ms Burbeck’s own complaint about Ms Wickham’s behaviour. It did not consider that the 
complaint required investigation.

[82] After consideration of all the evidence on the matter there is some justification for the 
Council to have sought to discuss with Ms Burbeck her alleged conduct in the discussion with 
Ms Wickham and, if it was found wanting, to call her to account.

[83] Ms Burbeck presented to the Commission as an assertive person who is prepared to 
communicate to others what she perceives as her rights as well as to communicate anything 
which she considers to be an injustice done to her. However, it is apparent from all the 
evidence as well as Ms Burbeck’s demeanour in the course of the determinative conference 
that she does not necessarily reciprocate by being prepared for others to raise with her 
injustices perceived to have been done to them. In short, the Commission can see how some 
of the workplace arguments that Ms Burbeck has complained about have taken place and have 
come to be perceived by her as inappropriate conduct by the other party without any 
concession that her own conduct may be in question.

[84] I accept what Ms Davison has to say when she says that she overheard the 
conversation between Ms Burbeck and Ms Wickham and that she believed Ms Burbeck had 
raised her voice. However, the evidence before the Commission is that this was probably 
unlikely to be an incident involving unduly raised voices. Ms Burbeck’s recollection of the 
overall incident includes that the discussion was not an argument. Even if it was an argument, 

                                               
47 Ibid, Attachment O.








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such things, as well as raised or loud voices, do occur in workplaces from time to time – even 
in libraries. However, not all arguments or occasions of loud or raised voices can or should be 
characterised as breaches of codes of conduct and the like. They may simply be arguments. 
To consider all arguments, loud or raised voices as breaches of codes of conduct and the like 
would be to import standards of conduct into workplaces that simply are not the standards to 
be expected of citizens in other parts of their lives. Much depends on the context of what 
happened.

[85] Ms Davison’s judgement that the matter needed to be the subject of disciplinary action 
is likely coloured by her view, held by October, that Ms Burbeck was, or was becoming, 
unmanageable. Ms Price recalls at the time of drafting the First Allegations Letter that the 
issues surrounding Ms Burbeck appeared to be escalating.

[86] In overall context, a decision to pursue disciplinary action against Ms Burbeck in 
relation to this matter was unwise and bordering on unreasonable, for the reason that the 
evidence does not support that there was shouting or abusive words used in the exchange 
from Ms Burbeck to Ms Wickham; merely that she raised her voice, most likely in an 
assertive but not yelling manner, and that altogether she may have been brusque in the 
exchange with Ms Wickham. Ms Burbeck, of course, complains that Ms Wickham 
reciprocated, similarly raising her voice – but apparently not so much as to be, in Ms 
Burbeck’s view, an argument – as well as breaching her confidentiality by raising issues 
regarding her performance counselling.

[87] However it is, of course up to individual workplaces to determine the standards of 
behavioural conduct they accept in their workplace, notwithstanding that not all arguments or 
loud or raised voices will be breaches of codes of conduct and the like. The relevant part of 
the Council’s Code of Conduct does not meaningfully assist determination of this matter.
Because Ms Davison, as the apparent complainant, overhead the conversation, and Ms Price 
considered that Ms Burbeck’s behaviour had been escalating, as well as that it is not 
compellingly unreasonable to have required Ms Burbeck to attend a disciplinary meeting on 
the subject, I accept that the decision of Ms Price and the Council in this regard was open to 
them.

[88] However, that does not dispose of the question of whether the decision was 
unreasonable, and in finality, I consider it was. The decision not to similarly investigate Ms 
Burbeck’s complaints about Ms Wickham pushes Ms Price’s overall decision into the 
province of unreasonable conduct.

[89] Neither Ms Davison or Ms Price saw a need to take Ms Wickham to account for the 
allegations made against her by Ms Burbeck, who put forward in an email to Ms Wickham 
with a copy to Ms Davison that Ms Wickham had said loudly in a public area in front of other 
staff members that “this is what I mean about your time management, Kate”, which was 
apparently a response to Ms Burbeck informing her that it would be difficult to complete 
certain work by the end of the day.48 Ms Davison’s reasoning for not investigating the 
complaint included that she had overheard the conversation and did not think Ms Wickham’s 
conduct was problematic. Ms Price shared that view. However, in doing so, the Council 
denied Ms Burbeck the chance to put forward her version of the discussion and the points 
within it that Ms Burbeck saw as inappropriate or unreasonable on Ms Wickham’s part. The 

                                               
48 Ibid, [22]; Attachment P.








[2017] FWC 4988

29

failure to seriously consider Ms Burbeck’s complaint about Ms Wickham disregards Ms 
Burbeck’s complaint of provocation and looks like a pre-ordained decision by the Council, as 
if it were saying “we know what went on and have already determined you were in breach of 
the Code, but let’s hear if you have anything to say in the way of mitigation before we 
determine the penalty”.

[90] For that reason, I am unable to find that the decision in total was reasonable 
management action carried out in a reasonable manner, since there was no counterpart 
investigation of Ms Burbeck’s complaint about Ms Wickham. Although it is noted by Ms 
Price that Ms Wickham had announced her retirement from the Council in July and that she 
intended to retire on 9 December 2016, the failure by Ms Price to be even-handed in her 
calling to account of the people involved, especially in the light of Ms Burbeck’s written 
complaint about Ms Wickham leads to the conclusion that the Council’s overall decision was 
not reasonable management action carried out in a reasonable manner.

[91] The finding is therefore open to the Commission that Ms Price’s decision set out 
within the First Allegations Letter of 12 October 2016 which alleged Ms Burbeck had 
contravened the Council’s Code of Conduct in the interaction she had with Ms Wickham on 
Friday, 7 October 2016 and initiated a disciplinary meeting was unreasonable conduct and 
was not reasonable management action carried out in a reasonable manner, which is a 
foundation element for a finding of bullying within the meaning of s.789FD(1) of the Act.

The Second Allegations Letter – 20 October 2016

[92] On 20 October 2016, Ms Burbeck was sent a further allegations letter while she was 
on sick leave which partly subsumes the matters raised in the 12 October 2016 letter as well 
as putting forward five other allegations (the Second Allegations Letter). The correspondence 
is set out below:

“Dear Ms Burbeck,

INVITATION TO DISCIPLINARY MEETING

As you were not able to attend the disciplinary meeting that was scheduled for 
Monday 17 October 2016, you are invited to a disciplinary meeting Monday 24 
October 2016 at 10.30 am in the Civic Centre, CCS meeting room. Present at this 
meeting will be Director CCS, Skye Price, Manager HR, Tony Jennison and Manager 
Library Services, Georgina Davison. You are invited to bring a support person to this 
meeting. At the meeting the following matters will be discussed:

1. It is alleged that 17 August 2016 you left work without approval and without 
informing your supervisor until you had left the workplace, after walking out of a 
performance counselling session. You were then absent Thursday and Friday on 
personal leave, however posted on social media about your play rehearsal on 
Thursday night 18 August 2016.

If this is substantiated this may amount to a breach of Council’s Enterprise Agreement 
2015 which states:

Required hours








[2017] FWC 4988

30

E5.4 An employee will account for their hours worked and any leave taken in a 
manner suitable to Council.
E5.5 The employee must work their required hours at the times directed by Council.

2. It is alleged that 23 August 2016 you took unapproved TOIL. You sent an 
email to the acting Operations Team Leader stating “I’m wanting to use an hour 
of TOIL this morning from 11-12pm. As you’re not there to ask, I will assume 
this is fine.”

If this is substantiated this may amount to a breach of Council’s Enterprise Agreement 
2015 which states:

TOIL E6.6: Any request to take unscheduled TOIL must be approved in advance by 
the supervisor.

3. It is alleged that 30 September 2016 you were absent from work without 
approval. It was discussed with your Manager, prior to recreational leave that your 
leave would only be approved to 29 September 2016 due to operational 
requirements.

If this is substantiated this may amount to a breach of Council’s Enterprise Agreement 
2015 which states:

Annual Leave F1.2: Any accrued annual leave may only be taken with the written 
approval of Council. To avoid doubt, annual leave may not be taken prior to its 
approval.

4. It is alleged that Wednesday 5 October 2016 following an activity for the 
school holiday program, you signed your timesheet as having finished work at 
9.25 pm, but you had set the alarm at 9.09 pm and left the building.

If this is substantiated this may amount to a breach of Council’s Enterprise Agreement 
2015 which states:

Required hours E5.4 An employee will account for their hours worked and any leave 
taken in a manner suitable to Council.

5. It is alleged that Friday 7 October 2016 you were overheard by your Manager 
Georgina Davison speaking in an unnecessarily raised voice to your supervisor 
Lynda Wickham, in the presence of another staff member.

If this is substantiated this may amount to a breach of Council’s Code of Conduct 
which states:

Section 4.4: An employee must behave in a professional manner in the course of 
carrying out their duties which includes treating a fellow employee and all those in the 
workplace with courtesy, dignity and respect at all times.

6. It is alleged that Wednesday 12 October 2016 you left work without prior 
approval after receiving an invitation to a disciplinary meeting.








[2017] FWC 4988

31

If this is substantiated this may amount to a breach of Council’s Enterprise Agreement 
2015 which states:

Required hours

E5.4 An employee will account for their hours worked and any leave taken in a 
manner suitable to Council.
E5.5 The employee must work their required hours at the times directed by Council.

The purpose of this meeting is to discuss the matters outlined above with you. The 
meeting is also intended to offer you an opportunity to respond to our concerns about 
your performance and conduct. Please understand that the matters we intend to discuss 
with you at this meeting are serious and, dependent on your responses may lead to 
disciplinary action which may include termination of your employment. If you fail to 
attend the meeting or do not respond to the allegations we will be left to make a 
determination on the information we have available.

Yours sincerely,

Skye Price
Director Corporate and Community Services”49

[93] The reasons the Council chose to provide, including the Second Allegations Letter to 
Ms Burbeck, and especially items 1, 2, 3 and 4 have not been cogently explained to the 
Commission, even in the course of the determinative conference for this matter. Those matters 
had not been previously put to Ms Burbeck; item 5 is a repetition of the allegation put in the 
First Allegations Letter and item 6 relates to what Ms Burbeck did when she received the First 
Allegations Letter.

[94] The best explanation that has been given for issuing the Second Allegations Letter is 
that after there were some difficulties in getting Ms Burbeck to attend the disciplinary 
meeting scheduled for 17 October, including for the reason that she left work on 12 October 
and commenced sick leave, Ms Davison:

“… approached Skye regarding a range of different issues that came to light 
concerning Kate. It was decided that a further invitation to a disciplinary meeting be 
sent to Kate to include consideration of these other concerns as well as the 7 October 
incident. We were keen to address all Kate’s issues in an effort to establish a positive 
way forward for all concerned.”50

[95] As well as noting in her evidence that during October 2016 she perceived the overall 
difficulties associated with Ms Burbeck had been escalating, Ms Price also partly deals with 
the decision to issue the Second Allegations Letter in her witness statement:

“11. An incident occurred in the library involving Kate and Lynda Wickham, 7 
October and Manager Library Services, Georgina Davison approached me about the 

                                               
49 Ibid, Attachment R.
50 Exhibit R2, [46].








[2017] FWC 4988

32

matter, later that day. Subsequently, Human Resources consulted with the Western 
Australian Local Government Association Human Resources department, to obtain 
professional advice. Upon receiving feedback, Wednesday 12 October 2016, it was 
decided to send correspondence to Kate, inviting her to attend a disciplinary meeting, 
to discuss and resolve Council’s concerns, as well as Kate’s recent conduct and 
actions.

12. The correspondence sent to Kate dated 20 October 2016, clearly stipulates in the 
closing paragraph that, “The purpose of this meeting is to discuss the matters outlined 
above with you. The meeting is also intended to offer you an opportunity to respond to 
our concerns about your performance and conduct”. It was intended to disclose all of 
Council’s concerns with the Kate, in an open and transparent manner. This was a 
gesture in the interests of addressing and resolving the situation.

13. I feel incredibly strongly about ensuring that all staff members are equipped to 
undertake their respective work roles to the best of their abilities; and that they have 
every opportunity related to fulfilling work roles, as well as work satisfaction. If team 
members are not satisfied in their work roles, then they’re less inclined to be 
productive, engaged contributors, as Council personnel; and at Council’s customer
service points. As a consequence, it is important to raise employee relations matters as 
swiftly and comprehensively as possible, to ensure that they’re suitably addressed and 
resolved.”51

[96] Despite this endeavour to raise employee relations matters as swiftly and 
comprehensively as possible, there is no evidence that anything happened between 12 and 20 
October 2016 that caused the Council to reasonably take the view that new matters of concern 
demanded being brought to Ms Burbeck’s attention within a disciplinary context. There is 
also no explanation before the Commission about who looked for these extra matters, or why 
they had not previously been brought to Ms Burbeck’s attention.

[97] The best that appears to be able to be said about the decision to issue the Second 
Allegations Letter is that the Council seemed to be attempting to be bringing to a head all of 
its grievances against Ms Burbeck. Perhaps it thought that if it was going to have a debate 
with Ms Burbeck about her demeanour and conduct and her future with the Council then it 
needed to roll everything into the one process.

[98] While that possibility is acknowledged, the decision ultimately is an unreasonable one. 
The matters complained about in the Second Allegations Letter, with the exception of the last 
two matters, items 5 and 6, are also rather old, each predating the 12 October 2016 First 
Allegations Letter, as well as never previously having been raised with Ms Burbeck by 
anyone, even verbally. The first four matters relate to Ms Burbeck’s timekeeping and surely 
should have been the subject of a discussion between her and her front line supervisor rather 
than being escalated into a disciplinary meeting process. The fifth matter referred to in the 
correspondence is, of course, the subject of the First Allegations Letter, and the sixth relates 
to Ms Burbeck leaving the workplace on 12 October 2016, possibly without informing 
anyone, after being informed in the First Allegations Letter of the need to attend a disciplinary 
meeting on 17 October 2016.

                                               
51 Exhibit R4.








[2017] FWC 4988

33

[99] Notwithstanding that the motive of the Council may have been to roll into the one 
process all of its grievances about Ms Burbeck, that decision and the manner in which it did 
so was unreasonable and looks to be a process on the part of the Council to trawl for matters 
that may be held against Ms Burbeck in a disciplinary sense. Ms Price’s decision to issue the 
Second Allegations Letter was unreasonable conduct and it was not reasonable management 
action taken in a reasonable manner.

[100] The finding is therefore open to the Commission that Ms Price’s letter of 20 October 
2016 which initiated a disciplinary meeting in relation to Ms Burbeck’s response to the 
“respect” email of the same day was unreasonable conduct and was not reasonable 
management action carried out in a reasonable manner, which is a foundation element for a 
finding of bullying within the meaning of s.789FD(1) of the Act.

Annual leave approval revocation – February 2017

[101] Ms Burbeck has also raised a complaint that annual leave which had been approved in 
October 2016 was unjustifiably revoked in February 2017.

[102] The background to this is that Ms Burbeck applied for 15 days annual leave, 
apparently on 3 October 2016. Her leave application refers to the desired period of absence as 
being 13 February to 3 March 2017. She made the application in accordance with the requisite 
leave form. The initial application was rejected, a decision which Ms Burbeck considered to 
have been made on an incorrect basis, being that she would have insufficient leave accrued by 
the time of the leave. She took the matter up with the payroll department, who she says 
accepted there had been an apparent error, after which she resubmitted her leave application 
form. Ms Burbeck puts forward that a payroll officer informed her in December that the leave 
had been approved by payroll and that her resubmitted form was with Ms Price. Ms Burbeck 
was also aware that her leave was showing as approved on an intranet bulletin board and the 
Library’s Outlook calendar.52

[103] In early February 2017 Ms Burbeck became aware that what she understood to be 
approval of her leave application approval had been revoked.

[104] When she had need to communicate with the Council regarding the fact that she would 
not be attending for work in the period 6 February to 12 February 2017 inclusive for reasons 
of medical illness, Ms Burbeck sent an email to the relevant officer making that fact known to 
them, as well as drawing to their attention the fact that she had learned her annual leave had 
been revoked. She asked the officer concerned, with a copy Ms Davison to have the leave 
reinstated.53

[105] Ms Davison responded shortly after thanking her for her advice that she would not be 
attending for work in the following week and advising that “your leave application was not 
approved as there wasn’t enough available leave”.54 After receiving this advice from Ms 
Davison, Ms Burbeck queried whether its basis was factual:

“Hi Georgina,

                                               
52 Exhibit A1, Attachment V.
53 Exhibit R5, Attachment 16.
54 Exhibit A1, Attachment U.








[2017] FWC 4988

34

Thank you for your reply. However, there seems to have been some kind of an 
administrative error.

My leave for February 2017 was in fact approved in December last year. In October 
2016, after the form was returned to me from you with a note saying that I did not 
have enough leave accumulated at that time, I took the leave form back to Jay in 
payroll and he then took into consideration how much leave I would have accrued by 
February 2017 (rather than my leave balance as at October 2016), and as you may 
recall, I resubmitted the form to you which was accepted.

In line with the leave balance that Jay had re-calculated at that time, my most recent 
payslip shows that I currently have 16.85 days of annual leave available. I had 
requested 15 days on the form.

So, clearly your statement is incorrect as I do in fact have enough annual leave 
available.

Furthermore, your statement that my annual leave was not approved is also incorrect. I 
spoke with Kylie Wells in payroll in December last year and she informed me that my 
leave form had been approved by payroll and was with the director and subsequent to 
this, I had It confirmed that my February annual leave was listed on the Intranet as 
being approved, and it also appeared on the library’s shared Outlook calendar. There 
are numerous witnesses to this annual leave request having been approved.

Moreover, while I can appreciate that an honest mistake may have been made in this 
matter, it is entirely unreasonable that this change to my approved leave has been 
made without Council notifying me of the change, particularly during my absence 
from work while on sick leave.

I reiterate my request that my leave be reinstated.

Thank you and I look forward to hearing from you.

Kate”55

[106] It would appear that this correspondence from Ms Burbeck was not responded to 
either by Ms Davison or anyone else in the Council.

[107] It is not readily apparent to the Commission why Ms Burbeck wanted annual leave at 
the relevant time. When she raised the matter in February, she had been continuously absent 
since 12 October 2016 and, on 3 February 2017, provided a medical certificate for the period 
6 February 2017 to 12 February 2017. There is no evidence before the Commission that Ms 
Burbeck expected to return to work at the end of the annual leave period if it had been 
approved. In fact, the totality of the evidence points to it being unlikely that Ms Burbeck 
would have returned to work at the end of the annual leave period.

                                               
55 Exhibit A1, Attachment V.








[2017] FWC 4988

35

[108] The evidence in relation to this matter includes Ms Burbeck’s contention that when 
she checked about the matter with an officer in the payroll department she was told that the 
leave approval application was still with the relevant Director, being Ms Price, being told the 
form was still with her and on her desk. The evidence also includes that, for a time at least, 
Ms Burbeck’s annual leave was recorded on an intranet staff leave list, but that at some time, 
likely in February 2017, the approval indication was removed, apparently at the time the staff 
member who looked after leave approvals, but who was not responsible for approving the 
leave, realised the leave had not been approved.56 In her response to the Commission Ms 
Davison sets out the following response:

“Kate’s annual leave application was never approved by Skye Price or myself.
 Kate applied for leave – the form indicated she did not have enough leave.
 I signed the leave form as not approved and handed it to Lynda Wickham.
 Lynda Wickham advised Kate that it wasn’t approved and to see Kylie Wells 

when she returned to work from leave and resubmit another form.
 Skye Price asked me for information about the form and I advised her that I had 

not approved it as there was not enough leave indicated in the appropriate 
column.

 Skye Price signed the form as not approved.
 This is the last time I saw the form until I asked for a copy from Payroll Officer, 

Kylie Wells’ files.”57

[109] The material before the Commission indicates that Ms Burbeck was seeking 15 days 
annual leave between 13 February 2017 and 3 March 2017. When she made the application 
on 3 October 2016 the payslip for the pay period straddling that date (being for pay date 12 
October 2016) refers to Ms Burbeck’s recreation leave balance being 9.32 days. The payslip 
for the pay period straddling the date on which Ms Davison sent her email to Ms Burbeck 
(relating to pay date 15 February 2017) shows that Ms Burbeck had 17.81 days recreation 
leave accrued at that time. Ms Burbeck’s email to Ms Davison on 5 February 2017 querying 
what had happened made the point that her “most recent payslip shows that I currently have 
16.85 days of annual leave available. I had requested 15 days on the form”.58

[110] In listening to the evidence on the subject, it would appear that there has been a 
miscommunication between a number of people including those within the payroll department 
as well as the lack of attention to basic management concerns both by Ms Davison and Ms 
Price. Why it could be that an employee is either told that she has insufficient leave when 
demonstrably her accrued leave balance is greater than the leave to be taken, or why it took so 
long to actually make a decision about the second leave application, are not matters that have 
been explained adequately to the Commission.

[111] In considering this matter overall, the refusal of the first leave application, made in 
October 2016 cannot be considered to be unreasonable conduct on the part of anyone in the 
Council. It may have been a mistake on their part, but then mistakes are hardly unknown.

[112] When she realised the basis of what she perceived to be an incorrect decision, Ms 
Burbeck was within her rights to make a second leave application, which she did, apparently 

                                               
56 Person Named Response Form, F74, Davison, p.10.
57 Ibid, p.11.
58 Exhibit A1, Attachment V.








[2017] FWC 4988

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in December 2016. At that time she was entitled to have a decision made about the leave 
application in accordance with the usual two constructs for consideration of leave applications 
– will there be sufficient leave accrued at the relevant time?; is it convenient for reasons of 
overall team and resource management for the leave to be taken?

[113] The ASTC Enterprise Agreement provides that the Annual Leave clause is to be “read 
with and is subject to Division 6 of Part 2.2 of the Fair Work Act 2009.” (Clause F1.1.1). The 
Clause provides that “accrued annual leave may only be taken with the written approval of 
Council” and that annual leave may not be taken prior to its accrual. (Clause F1.2); further the 
taking of leave clause is to be read with and subject to s.88 of the Act (Clause F2.1.1). That 
section provides that an employer “must not unreasonably refuse to agree to a request by the 
employee to take paid annual leave”.

[114] No argument of substance is put to the Commission that approval of the leave could 
not proceed on the basis of either team or resource management considerations. The reliance 
by Ms Davison in February on an insufficiency of accrued leave as being the basis for refusal 
of leave is plainly in error, and unreasonably so.

[115] The evidence is inconclusive about which of Ms Davison or Ms Price had the 
appropriate delegation to approve Ms Burbeck’s leave. Irrespective, the finding can be made 
that in the face of Ms Burbeck’s 5 February 2017 email contending that she had sufficient 
leave, Ms Davison had a duty to check whether that was actually the case. Had she checked 
and established that was factually correct she would likely have an obligation to either 
approve the leave or, if she did not have the requisite leave approval delegation, to inform the 
delegate that the leave should be approved. The fact that these things were not done by Ms 
Davison and/or Ms Price and/or such other officer who may hold the requisite leave approval 
delegation is unreasonable conduct and is not reasonable management action taken in a 
reasonable manner.

[116] The finding is therefore open to the Commission that Ms Fisher’s revocation of Ms 
Burbeck’s February 2017 annual leave was unreasonable conduct, as was the decision not to 
check Ms Burbeck’s contention that she had sufficient accrued leave and, if so, to then not 
reinstate the leave approval. The same was not reasonable management action carried out in a 
reasonable manner. These findings are a foundation element for a finding of bullying within 
the meaning of s.789FD(1) of the FW Act.

[117] As set out in the analysis above, I am satisfied that four of the six allegations analysed 
in this decision amount to unreasonable conduct against Ms Burbeck and which are not able 
to be characterised as reasonable management action carried out in a reasonable manner.
Those four matters are as follows:

 The decision by ASTC to investigate Ms Burbeck for her conduct in replying on 23 
June 2016 to her whole team to Ms Fisher’s “respect” email;

 The decision by ASTC to issue the First Allegations Letter, dated 12 October 2016 
regarding the allegation of inappropriate conduct in a conversation with Ms 
Wickham on 7 October 2016;

 The decision by ASTC to issue a Second Allegations Letter to Ms Burbeck on 20 
October 2016 encompassing a range of matters not previously raised with her; and








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 The decisions associated with the revocation of approval for Ms Burbeck’s 
February 2017 annual leave; including the failure to check she had sufficient 
accrued leave and if so, to reinstate the leave approval.

[118] In considering the risk that such conduct may have to a person’s health and safety the 
Commission has held that the analysis involves a consideration of the possibility of danger 
and that the risk needs to be more than conceptual:

“[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.59 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.60 The ordinary meaning of ‘risk’
is exposure to the chance of injury or loss.61 In the sense used in this provision, the risk 
must also be real and not simply conceptual.”62 (footnotes in original)

[119] Assessment of the general safety risks associated with an eventuality is usually 
undertaken within a risk management framework, typically calling for the identification of 
potential risks; the introduction of measures to control the risk; and the means to report on and 
respond to identified instances.  In relation to the specific circumstance of an individual 
employee and whether an eventuality may pose a risk to their safety, several factors can be 
expected to require consideration, including the likelihood or foreseeability of the indicated 
event to occur and the consequences if it does. In the context of a matter such as this, the 
likelihood of the “eventuality” referred to in this form of risk analysis is the likelihood of an 
adverse reaction of some kind to each of the four decisions.

[120] The evidence before the Commission about the risk that any one of these matters 
individually creates to Ms Burbeck’s health and safety is at best slight. Clearly Ms Burbeck 
puts forward the contention that her current medical condition is wholly attributable to the 
conduct she has experienced at work and has factored within the proceedings before the 
Commission in this matter. She says about these matters:

“I have been diagnosed by two psychiatrists as suffering from Adjustment Disorder as a 
result as of the workplace stress that I have been subjected to via this ongoing and 
repeated unreasonable behaviour. I am currently unable to return to work and remain 
under medical supervision.”63

                                               
59 Newcastle Wallsend Coal Co Pty Ltd v Workcover Authority (NSW) (Inspector McMartin) [2006] NSWIRComm 339; 159 

IR 121 at [301].
60 Thiess Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252, 78 NSWLR 94 at [65]-[67]; Abigroup 

Contractors Pty Ltd v WorkCover Authority of New South Wales (2004) 135 IR 317 [58].
61 Macquarie Concise Dictionary definition.
62 Ms SB [2014] FWC 2104.
63 Exhibit A1, Attachment B, [46].








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[121] Ms Burbeck’s evidence is consistent with that of her psychiatrist Dr Hickey who, at 
the time of the determinative conference had seen Ms Burbeck on two occasions on 1 and 18 
November 2016. His opinion is that Ms Burbeck “has adjustment disorder with depressed and 
anxious mood, caused by the work stress” and that he thinks the “remedy is through sorting 
out the work issue, and mediation”.64 However, this evidence is generalised and does not 
sufficiently connect the symptoms described with the conduct experienced, as well as being a 
diagnosis formed in November 2016, some time after the last time Ms Burbeck had been in 
the workplace. Necessarily, his report was based on her retrospective reporting of her reaction 
to things that had already happened, as opposed to being a report based on her apprehension 
about things that were possible future actions by her employer.

[122] Of the four matters found by me to be unreasonable conduct on the part of the 
Council, three occurred before November 2016 and two of those, the “respect” email and the 
First Allegations Letter, were before Ms Burbeck left the workplace on 12 October 2016 in a 
situation, she says, of some distress. The Second Allegations Letter was given to her after that 
date, and presumably in the knowledge the Council had of Ms Burbeck’s claim of distress 
from the First Allegations Letter. The February 2017 annual leave revocation was also after 
that date and decided in the full knowledge of Ms Burbeck’s claimed medical condition.

[123] Consideration of each matter on its own does not lead to the view that an adverse 
reaction to any one of the two decisions before 12 October 2016 was especially foreseeable. 
Every day of the week, people in workplaces are challenged about their behaviour or conduct, 
or may be asked to attend meetings to discuss allegations. Such adverse reaction as may arise 
for any single event of this type is, in the absence of direct knowledge of a known risk factor,
unlikely to have foreseeable serious adverse health consequences. While one may be annoyed 
or concerned about being challenged about one’s behaviour or conduct such annoyance or 
concern would only rarely lead to serious adverse health consequences.

[124] However, the fact that there were four matters over a relatively short period; that two 
of the decisions was after 12 October 2016, when Ms Burbeck’s distress became apparent to 
the Council; and that each seems connected to the other in patterns of escalating tension 
means that by the time the Second Allegations Letter was issued the foreseeability of an 
adverse reaction to that and subsequent decisions was or should have been identifiable.

[125] However, the scale of that risk was not high and likely in the low to medium range.  
Such risk as there was must, in any event, be seen in the context of how both parties had got 
to that point.

[126] Firstly, I am unpersuaded that the actual risk of the conduct of the Council and people 
within it was much greater than a likelihood of creating a feeling of injustice, even when the 
compound effect of all four decisions is considered. Secondly, it is to be observed that, as 
discussed in several parts of the evidence referred to above, Ms Burbeck is an assertive 
employee, quite willing to defend herself and point out injustices that have been done to her.
She has had ready access to, and availed herself of, assistance from a skilled union as well as 
a workplace lawyer. She has been prepared to challenge those injustices through a variety of 
forums including through the internal grievance process of the Council, as well as the 
Commission. Her overall assertiveness and resilience would likely have reduced the extent to 
which any unreasonable behaviour toward her created a risk to health and safety.

                                               
64 Exhibit A2, Witness Statement of Dr Bernard Hickey.








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[127] Notwithstanding such view, the legislative requirement is to consider whether or not 
the repeated unreasonable behaviour created a risk to health and safety:- it did; albeit at a 
relatively low to medium level and because of the compounded effect of the four decisions.

[128] Accordingly, the Commission must make a finding that Ms Burbeck has been bullied 
at work within the meaning of s.789FD of the FW Act.

s.789FF(1) – risk of repetition

[129] The risk of a continuation of the conduct I have found to be unreasonable without 
intervention from the Commission is low to medium.

[130] To an extent one would trust that a public institution, such as the Council would accept 
the findings made in this decision and ensure no repetition of such behaviour along with an 
improvement in their decision making in relation to Ms Burbeck would occur. On the other 
hand, I see little in the way of insight by either the Council as a corporate entity or the 
managers concerned that they could have better handled Ms Burbeck’s situation. Account 
must also be taken of the fact that Ms Burbeck has very little, if any, insight either into how 
her own behaviour is perceived, or how it may have led to the present situation (matters which 
are developed further on in this decision).

[131] Without good managerial insight into the situation or a change in Ms Burbeck’s own 
presentation to her managers, it is probable that at least some of the behaviours I have found 
to be unreasonable may be repeated, or fresh unreasonable behaviour may occur.

[132] As a result, I find there is a risk of further conduct that may be regarded as bullying.
For the same reasons set out in relation to the risk analysis of the past conduct, I find that the 
possible future conduct may also present a somewhat low to medium risk to Ms Burbeck’s 
health and safety.

[133] In summary, I have found that Ms Burbeck has been bullied at work and that such 
behaviour created a risk to her health and safety. I have also found a risk of further conduct of 
this nature, also with a risk to her health and safety.

[134] It is therefore appropriate to consider whether orders may be made by the Commission 
and, if so, the terms of such orders.

Possible orders

[135] The FW Act requires in s.789FF(2) that the Commission must take into account 
certain matters associated with an order:

“789FF(2) In considering the terms of an order, the FWC must take into account:

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








[2017] FWC 4988

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

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

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

[136] Relevant to s.789FF(2)(a), there has been no investigation by or on behalf of the 
Council into Ms Burbeck’s allegations. While the Commission is aware that Ms Burbeck has 
made a claim for workers’ compensation benefits and that her claim requires investigation for 
that purpose, no evidence has been presented about the outcomes of that investigation, or of 
any other investigation that may have been undertaken.

[137] In relation to ss.789FF(2)(b) and (c), the ASTC Enterprise Agreement provides for a 
grievance procedure in Clause C1. The procedure is basic, providing only for discussion 
between an employee and their supervisor, the HR Manager and the Chief Executive Officer, 
and does not provide for a matter to be escalated to an external body, such as the Commission, 
whether for conciliation, mediation or arbitration. Ms Burbeck discussed certain of her 
grievances without success with the Council’s Chief Executive Officer, Rex Mooney on 22 
August 2016. The meeting was called by Ms Burbeck in furtherance of her rights under the 
Enterprise Agreement65 and related to her belief that Ms Price had not properly investigated 
or decided the two grievances she had notified the Council about in July 2016. Ms Burbeck’s 
evidence about the meeting was included that Mr Mooney “later rejected my grievances 
outright, stating that he could find nothing to support my complaints”.66 None of the 
Council’s witnesses contradicted this evidence or elaborated on the matters that caused Mr 
Mooney to decide the matter in this way.

[138] None of the other matters about which Ms Burbeck is concerned, or alleges bullying, 
have been the subject of progression through the ASTC Enterprise Agreement procedures. 
Given the state of the relationships between all concerned and that the Enterprise Agreement 
does not provide for the referral of an unresolved dispute to the Commission or other neutral 
body, I do not consider that further utilisation of the grievance procedure would lead to a 
result agreed or accepted by the parties.

[139] In relation to s.789FF(2)(d), I consider Ms Burbeck’s own conduct and behaviour has 
been unreasonable at times, which contributed to, or otherwise explains, the conduct and 
behaviour of the Council, Ms Fisher, Ms Davison and Ms Price.

[140] Matters such as this are rarely to be seen as involving universally poor behaviour 
projected toward one person, who then projects universally good behaviour to their 
protagonists. In many instances of actual or alleged bullying seen by the Commission there 
are elements of poor behaviour in both, or multiple directions.

[141] And so it is in Ms Burbeck’s case.

                                               
65 Ibid, Attachment B, [36].
66 Ibid, Attachment B, [38].








[2017] FWC 4988

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[142] Ms Burbeck appears to have resented her supervisor, and what she perceived to be her 
lack of qualifications, especially when compared to her own. Far too much time has been 
taken up in the conciliation and arbitration of this matter about Ms Burbeck’s concerns with 
Ms Wickham’s qualifications for it not to be obvious that Ms Burbeck had a problem in 
reporting to Ms Wickham. She thought she was unqualified and was a liar, and it is likely that 
her own behaviour towards Ms Wickham and others in the management chain was less than 
exemplary as a result.

[143] The Council appears to have reasonably formed the view, relatively early after Ms 
Burbeck had returned from long service leave in April 2016, that Ms Burbeck needed to 
improve in respect of her timekeeping and her interpersonal communications with other staff. 
Neither of these matters is unfounded or unjustified in the evidence and neither is hardly a 
controversial matter to be put to an employee in the course of a performance appraisal 
meeting. The Council put those matters firmly and professionally to Ms Burbeck in the 
performance appraisal meeting held on 22 June 2016.

[144] At one level Ms Burbeck wants to be seen as impervious to these critiques of her 
performance, however she has not ever really engaged with the Council about either matter.
Her attack on the decision to involve her in performance counselling in June 2016 is little 
more than a diversionary tactic: – while the attack is on foot it perhaps enables her to avoid 
the substance of the critique.

[145] The evidence before the Commission leads to the conclusion that Ms Burbeck likely 
does have a problem in adhering to the Council’s timekeeping expectations and her 
demeanour was likely seen as wanting by some of her colleagues with there being some 
objective foundation to their perceptions. Identification of those matters in a performance 
appraisal meeting along with an expectation of improvement is hardly unreasonable, let alone 
bullying in the circumstances presented in this matter.

[146] Ms Burbeck’s comments in her performance appraisal on the timekeeping question are 
illustrative as a first example of the Ms Burbeck’s approach to time-keeping. In response to 
the performance appraisal question “[w]ere you consistently punctual?”, Ms. Burbeck self-
rated herself as “good” and commented “[s]ometimes I am a little bit late but I stay after 5pm 
to make up for this. There are some days when I do not finish until after 5pm anyway.” This 
appears to be Ms Burbeck firmly saying “I will manage my own time”.

[147] When the management representatives graded her timekeeping as “unacceptable” and 
stated “Kate needs to manage her time better. This includes consistently working a 7.6 hour 
day rather than using TOIL frequently”,67 it attracted a complaint of unfairness and was seen 
by her as bullying.

[148] The second example is when Ms Burbeck became distressed and left the premises on 
12 October 2016 after being issued with the First Allegations Letter in which she was told she 
needed to attend a disciplinary meeting on 17 October 2016. After receiving the letter, she 
sent Ms Davison an email with the subject “I’m going home for home (sic) for the day”.68 Ms 
Burbeck says that after receiving the First Allegations Letter, she “was extremely stressed and 

                                               
67 Ibid, Attachment E, p.2.
68 Exhibit R5, Attachment [13].








[2017] FWC 4988

42

left work on sick leave after notifying Georgina Davison via email”.69 Ms Burbeck’s 
submission is that her email to Ms Davison amounts to notification of her intention to leave 
the premises early. Ms Price argues that when she left, Ms Burbeck did not advise anyone of 
her departure.70 That characterisation of the circumstance is probably correct – Ms Burbeck 
got the letter; quickly typed an email to say that she was going home for the day, without 
ascertaining that Ms Davison had seen it; and then left without actually speaking with anyone. 
In a strict sense, the email may be a notification to the Council that she was leaving for the 
day, but in no sense does it satisfy the reasonable need of any employer to be informed by its 
employees of their whereabouts. The Council was entitled to expect more than an email.

[149] These examples illustrate Ms Burbeck’s likely views about the matter of timekeeping: 
– it is her time to keep and she sees no need to conform to expected norms or directions on the 
subject from her employer.

[150] In relation to her interpersonal communications, there is sufficient evidence before the 
Commission to find that Ms Burbeck likely needs development in that regard. Rather than 
accepting criticism from her managers, she objects to what they might say. There is a pattern 
on such occasions of querying, seeking further information, challenging, debating, blocking 
and generally pushing back at all opportunities.

[151] Ms Fisher’s “respect” email 23 June 2016 serves to illustrate these features of Ms 
Burbeck’s communication style. The email from Ms Fisher to all staff is largely an 
uncontroversial communication from a front line supervisor to her staff with it being put 
forward that “your standards have been slipping; please pay attention to our values”. While 
the efficacy of such a communication may be debatable, with success being dependent on the 
transgressors realising the communication is directed at them and then being sufficiently 
motivated to change, the email’s content simply do not warrant reply even to Ms Fisher, let 
alone the wider team.

[152] Rather than accepting the cultural challenge posed by Ms Fisher, Ms Burbeck 
questions why the email was sent generally and not raised directly with the given employee or 
employees. She self-identifies as having been told her behaviour has been found to be 
patronising and challenges Ms Fisher – how did these issues come to your attention? In all, 
this technique of not accepting minor and otherwise relatively normal directions and always 
wanting the last word is both wearying as well as wearisome, and it is no way to run an
employment relationship.

[153] Those matters – Ms Burbeck’s disaffection with Ms Wickham and her unwillingness 
to meaningfully engage on the matters of her timekeeping and her interpersonal 
communications – have coloured the play-out of the employment relationship since mid-2016 
for all apparent sides. As individual incidents, the matters are, or should be, relatively minor; 
however within this relationship the matters have escalated in the way traversed at length 
above.

[154] My findings of behaviour and conduct on the part of Council officers are therefore to 
be seen within the context of Ms Burbeck’s own conduct and behaviour having a contributory 

                                               
69 Exhibit A1, [23].
70 Exhibit R4, [14]








[2017] FWC 4988

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effect. The presence of this contributory behaviour and conduct inevitably tempers 
consideration of what may be done about the conduct about which Ms Burbeck complains.

[155] After consideration of all of the relevant factors and evidence, I consider it to be 
appropriate to make an order in this matter, however I consider that any order should be 
limited to matters reasonably necessary to reset the employment relationship and to allow all 
concerned to move forward within those relationships on an even basis. In my opinion that 
basis needs to unequivocally:

1. Ensure Ms Burbeck is not subjected to the unilateralism of decision-making by the 
Council and its officers featured in those decisions I have found to be unreasonable 
conduct;

2. Ensure Ms Burbeck has confidence she will not be subject to further unreasonable 
decisions or conduct by the Council; and

3. Ensure the Council is able to raise with Ms Burbeck the concerns it has about her 
performance and have her act positively on those concerns.

[156] The Orders to be made by the Commission in this matter will be the following:

1. The requirement of Ms Burbeck issued in the meeting held on 29 June 2016 that Ms 
Burbeck apologise to Ms Fisher for the email she sent to the library team on 23 June 
2016 is set aside and is of no effect;

2. The requirements for Ms Burbeck to respond to and answer the matters set out in the 
First and Second Allegations letters dated 12 October 2016 and 20 October 2016 are 
set aside and are of no effect and the Council is ordered not to take any further action 
in relation to the matters set out in those letters;

3. The Council is ordered to approve any future application made by Ms Burbeck for 
annual leave, provided that she has complied with the Council’s leave applications 
processes and policies and that she has sufficient leave accrued to cover the period of 
leave applied for and that her absence from work on annual leave does not cause 
undue inconvenience for other library staff members or the library as a whole;

4. Ms Burbeck will participate in performance counselling on the two matters set out in 
the performance appraisal of June 2016 as requiring development on her part, namely 
issues associated with her timekeeping and interpersonal communication skills, with it 
being possible that performance counselling on those matters may include a request to 
attend skills development training;

5. The Council’s next assessment of Ms Burbeck’s performance in accordance with its 
standard performance appraisal system will be no earlier than four months from the 
date she returns to work;

6. Ms Burbeck will comply with and follow the Council’s Code of Conduct and its 
policies and procedures on Time Off In Lieu and working hours and any directions 
given to her by the Council which are consistent with the Code, the policies and 
procedures;








[2017] FWC 4988

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7. The Council will, within two months of the date of these orders, arrange for the 
conduct of anti-bullying and positive communication training by an external provider 
for persons employed in its library and the training will be attended by Ms Burbeck, 
Ms Fisher, Ms Davison and Ms Price as well as the other employees of the library;

8. The Council will, within two months of the date of these orders, review its procedures 
for commencing disciplinary action (however described) against staff members; 
handling interpersonal or workplace bullying grievances raised by staff members; and 
for investigating complaints of workplace bullying.

COMMISSIONER

Appearances:

Ms K. Burbeck on her own behalf. 
Mr C. Turner Solicitor and Mr K. McCann on behalf of the Respondent.

Hearing details:

2017.
Melbourne:
17-18 July.

Printed by authority of the Commonwealth Government Printer

Price code G, PR596355


OF THE FAIR WORK C AUSTRALIA MMISSION THE SEAL

Cases cited by this decision: