1
Fair Work Act 2009
s.604 - Appeal of decisions
Mr Miroslav Blagojevic
v
AGL Macquarie Pty Ltd; Mitchell Seears
(C2018/3125)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT KOVACIC
COMMISSIONER HAMPTON MELBOURNE, 20 JULY 2018
Appeal against decision [2018] FWC 2906 of Commissioner Saunders at Newcastle on
23 May 2018 in matter number AB2017/585 – application for a stop bullying order – whether
conduct was bullying behaviour – reasonable management action carried out in a reasonable
manner – no arguable case of error – no public interest – permission to appeal refused.
Introduction
[1] On 23 May 2018 Commissioner Saunders issued a decision1 (the Decision) dismissing
Mr Blagojevic’s application for an order to stop bullying by his employer, AGL Macquarie
Pty Ltd (AGLM) and his supervisor, Mr Seears (collectively, the Respondents).
Mr Blagojevic has lodged an appeal against the Decision.
[2] An appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) is an appeal by way
of rehearing and the Commission’s powers on appeal are only exercisable if there is error on
the part of the primary decision maker.2 There is no right to appeal and an appeal may only be
made with the permission of the Commission. The matter was listed for hearing in respect of
both permission to appeal and the merits of the appeal. The background to the proceedings
before Commissioner Saunders is uncontroversial and may be shortly stated.3
[3] Mr Blagojevic has been employed by AGLM as an Asset Engineer since late 2006.
Mr Seears commenced working at AGLM as Mr Blagojevic's supervisor on
29 November 2016.
[4] Mr Seears placed Mr Blagojevic on a performance improvement plan (a PIP) in
March 2017, and a revised PIP in June 2017. Mr Blagojevic participated in nine PIP meetings
1 [2018] FWC 2906.
2 This is so because on appeal FWC has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC
(2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
3 Set out in the Respondent’s Outline of Submissions at [11]-[16] and uncontested by Mr Blagojevic. See Transcript 13 July
2018 at [20]-[21].
[2018] FWCFB 4174
DECISION
E AUSTRALIA FairWork Commission
[2018] FWCFB 4174
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with Mr Seears and Ms Price (AGLM's People and Culture Business Partner) between
March 2017 and October 2017.
[5] Mr Blagojevic has been absent from work since 30 October 2017, when he provided
AGLM with a medical certificate certifying him as unfit for work.
[6] On 3 November 2017, Mr Blagojevic applied to the Commission for orders to stop
bullying pursuant to s.789FC of the Act, asserting that a decision by Mr Seears to place him
on a PIP in March 2017 and a revised PIP in June 2017 constituted bullying at work.4
The Statutory Framework
[7] The relevant provisions are set out in Part 6-4B of the Act (ss 789FA-789FL). Part 6-
4B was inserted into the Act by the Fair Work Amendment Act 2013 (Cth) (the 2013
Amendment Act).
[8] The scope of the Commission’s power to make orders to stop bullying is set out in
s.789FF:
‘(1) If:
(a) a worker has made an application under section 789FC; and
(b) the FWC is satisfied that:
(i) the worker has been bullied at work by an individual or a group of
individuals; and
(ii) there is a risk that the worker will continue to be bullied at work by the
individual or group;
then the FWC may make any order it considers appropriate (other than an order requiring
payment of a pecuniary amount) to prevent the worker from being bullied at work by the
individual or group.
(2) In considering the terms of an order, the FWC must take into account:
(a) if the FWC is aware of any final or interim outcomes arising out of an
investigation into the matter that is being, or has been, undertaken by another
person or body - those outcomes; and
(b) if the FWC is aware of any procedure available to the worker to resolve grievances
or disputes - that procedure; and
(c) if the FWC is aware of any final or interim outcomes arising out of any procedure
available to the worker to resolve grievances or disputes - those outcomes; and
(d) any matters that the FWC considers relevant.’ (emphasis added)
4 Decision at [2].
[2018] FWCFB 4174
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[9] Section 789FC(1) sets out who may apply to the Commission for an order under
s.789FF to prevent a worker from being bullied at work:
‘s.789FC(1) A worker who reasonably believes he or she has been bullied at work may apply to
the FWC for an order under section 789FF.’ (emphasis added)
[10] The definition of ‘bullied at work’ is central to the operation of Part 6-4B. A worker
may only apply to the Commission for an order under s.789FF if they reasonably believe that
they have been ‘bullied at work’ (s.789FC(1)). The Commission’s power to make orders to
stop bullying is only enlivened if, among other matters, the Commission is satisfied that the
applicant worker has been ‘bullied at work’ (s.789FF(1)(b)).
[11] It can be seen that s.789FF establishes three prerequisites to the exercise of the power
to make anti-bullying orders:
1. A worker must have made an application under s.789FC.
2. The Commission must be satisfied that the applicant worker has been bullied at
work by an individual or group of individuals.
3. The Commission must be satisfied that there is a risk that the applicant worker will
continue to be bullied at work by the individual or group of individuals.
[12] In the proceedings at first instance there was no contest that Mr Blagojevic is a worker
who reasonably believes that he has been bullied at work, and that he has made an application
to the Commission for an order under s.789FF of the Act. Accordingly, there was a valid
application before the Commission.
[13] The second condition required the Commission to be satisfied that Mr Blagojevic has
been bullied at work by an individual or a group of individuals.
[14] Section 789FD of the Act sets out the test for establishing whether a person has been
bullied at work. It provides as follows:
‘(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 behaved 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.’
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[15] The test is objective. What is reasonable is a question of fact. Behaviour is
unreasonable if a reasonable person, having regard to all the circumstances, may consider it to
be unreasonable.5
[16] The expression ‘repeatedly behaved unreasonably’ in s.789FD(1)(a) of the Act falls
within a definition provision and is to be interpreted and applied with reference to the policy
or purpose of Part 6–4B of the Act, which is to establish a mechanism by which the bullying
of workers at work may be stopped.6
[17] A one-off incident will not be a sufficient basis for the making of an application to the
Commission.7 Provided there is more than one occurrence, there is no specific number of
incidents required to meet the condition of “repeated” behaviour, nor does the same specific
behaviour have to be repeated.8 The statutory provision requires repeated unreasonable
behaviour by the individual or a group of individuals towards the applicant worker or a group
of workers to which the applicant belongs.9
[18] Section 789FD(2) qualifies the definition of when a worker is bullied at work such that
it does not apply to ‘reasonable management action carried out in a reasonable manner’. There
are three elements to this qualification:
the behaviour must be management action;
the taking of such management action must be reasonable; and
the management action must be carried out in a manner that is reasonable.10
[19] The expression ‘management action’ in s.789FD(2) is not confined only to managerial
decisions but encompasses a wider range of conduct or behaviour which affects an employee,
including such things as performance and disciplinary matters, the allocation of work and the
way in which work is to be carried out.11 Placing an employee on a PIP clearly falls within the
scope of the expression ‘management action’.
[20] To determine whether the action constitutes “reasonable management action” it is
necessary to undertake “an objective assessment of the action in the context of the
circumstances and knowledge of those involved at the time”.12 The test for reasonable
management action is whether the “management action was reasonable, not whether it could
have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’.”13
5 GC [2014] FWC 6988 (GC) at [47].
6 Mac v Bank of Queensland Limited [2015] FWC 774 at [89] (‘Mac v BOQ’).
7 Re SB (2014) 244 IR 127; [2014] FWC 2104 (Re SB) at [41].
8 GC at [45].
9 Ibid; Mac v BOQ at [88]-[89].
10 GC at [52].
11 Purcell v Ms Mary Farah and Mercy Education Ltd T/A St Aloysius College [2016] FWC 2308 at [22].
12 Re SB at [49]. See also Comcare v Martinez (No. 2) [2013] FCA 439 at [83] dealing with related concepts.
13 Re SB at [51] see also Mac v BOQ at [91].
http://www.fwc.gov.au/decisionssigned/html/2014fwc2104.htm
http://www.fwc.gov.au/decisionssigned/html/2014fwc6988.htm
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[21] The specific question of whether placing a worker on a PIP constituted “reasonable
management action” for the purposes of s.789FD(2) of the Act, was considered by
Vice President Hatcher in Mac v Bank of Queensland Limited.14 In that case, the applicant,
Ms Mac, argued that the managerial decision to impose, and continue to impose, a PIP on her,
was not reasonable management action because the shortcomings in her performance had not
been sufficiently serious to justify that decision being made.15 In assessing the reasonableness
of this managerial decision, the Vice President did not attempt to form his own judgment as to
whether Ms Mac’s overall performance was satisfactory, explaining:16
‘… I do not consider that an assessment of whether the imposition of the PIP on Ms Mac was
unreasonable requires the Commission to engage in the process of attempting to form its own
judgment as to whether her overall performance was satisfactory or not and to substitute its
judgment for that of the relevant BOQ managers and supervisors. Even if a different and better
opinion of Ms Mac’s work performance could legitimately be formed on the evidence before
me, that would not be sufficient to show that the decision to introduce the PIP was
unreasonable. What is necessary is for Ms Mac to demonstrate that the decision to introduce
the PIP lacked any evident and intelligible justification such that it would be considered by a
reasonable person to be unreasonable in all the circumstances.’ (emphasis added)
[22] In the Decision subject to appeal the Commissioner agreed with the approach taken by
the Vice President and applied it to the matter before him, noting:
‘It follows that I do not need to form my own judgment as to whether Mr Blagojevic’s overall
performance was satisfactory or not. The primary issues for determination are whether the
decision to introduce the PIP or revise it lacked any evident and intelligible justification, and
whether the introduction and implementation of the initial and revised PIP was carried out in a
reasonable manner.’17
[23] It is convenient to note here that Mr Blagojevic did not challenge this aspect of the
Commissioner’s decision; nor did he contend that Mac v BOQ was wrongly decided. For our
part, we agree with the observations of Vice President Hatcher set out at [21] above.
The Decision
[24] The Commissioner sets out the relevant statutory provisions and the proper
interpretation of those provisions at [10] to [21] of the Decision. At [22] the Commissioner
records Mr Blagojevic’s acknowledgement that the decision to place him on the initial and
revised PIP constituted management action and his challenge to the proposition that it was
reasonable management action carried out in a reasonable manner. The Commissioner
summarises Mr Blagojevic’s bullying allegations at [23] to [25], noting his main contention
that the five areas of concern used by Mr Seears to justify putting him on the initial and
revised PIP are ‘either made up completely, or based on facts but intentionally distorted in a
way that my performance looks worse than it really is’.18 The Respondent’s response is set
out at [26].
14 Mac v BOQ.
15 Mac v BOQ at [101].
16 Ibid at [102].
17 Decision at [21].
18 Decision at [23]; Exhibit A3.
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[25] The five ‘areas of concern’, along with examples, tabled in the initial PIP, were as
follows:19
Area of Concern Example/ Further Information
Delivery of commitments Examples of areas that require improvement:
HSE Action request (Ravensworth Plant investigation into failed discharge pipe work
at Chilcotss Creek) to extension despite having 7 weeks to obtain report. When the
HSE action was investigated it was not complete and thorough as it had been pushed
through quickly to meet the timeline rather than complete the full scope.
Action Orientation in
addressing plant issues
Several plant issues being unaddressed:
Electrical and Control issues with the Ravensworth Plant.
Outstanding notifications and work orders in the Ravensworth Plant.
Budget Control and
understanding of the work
being executed in his plant
The PO approval for the $15k ALS work was an example of being detached from the
work being completed in his area. Understanding of open work orders and defects as
per the December digestion of current work in the Rav plant.
Working with peers and
obtaining deliverables
Acceptance of lack of action by peers within the water contract management and
TWPS of not executing work and deliverables.
Example was Chilcotts creek investigation. Emails are ineffective in gaining action
from personnel.
Example electrical work, lots of emails behind getting work done.
Equipment strategy residing
in SAP as a central location.
Other systems outside of
SAP are meant for support
only.
Miro has provided examples of using spreadsheets, word documents etc. for his
strategy which is not a sustainable solution. All strategy set up, strategy changes should
all be living in SAP. Examples have been air receiver work in the dry dust plant,
actions out of the Chilcotts creek pipe failure have been to manage a change outside
the system.
19 Ex R4; attachment MS-3.
[26] The Commissioner dealt with each of the areas of concern in the Decision. Areas of
concern one, two and four are addressed at [79] to [88] and based on the findings made there
the Commissioner concludes (at [88]):
‘Consequently, I am satisfied on the balance of probabilities that Mr Blagojevic’s complacency
and lack of leadership in relation the electrical and control issues at the Ravensworth Plant and
Chillcotts Creek myHSE Action was an evident and intelligible justification for Mr Seears to
place Mr Blagojevic on a PIP.’
[27] Area of concern three is addressed at [89] to [92] and the Commissioner concludes (at
[92]):
‘I accept that it was reasonable for Mr Seears and AGL to expect Mr Blagojevic to
appropriately manage the budget for the Ravensworth Plant and therefore it was reasonable for
these concerns to form part of the justification for Mr Seears’s decision to place Mr Blagojevic
on a PIP when he did not improve in this area. It follows that this issue provided an evident
and intelligible justification for putting Mr Blagojevic on a PIP.’
[28] Area of concern five relates to Mr Blagojevic’s alleged use of systems other than SAP
to store his strategy for equipment. Mr Blagojevic argued that this was a trivial error that
[2018] FWCFB 4174
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could have been prevented or corrected by Mr Seears’ instruction. This area of concern is
addressed at [93] to [96] and the Commissioner concludes (at [96]):
‘I accept that Mr Seears had a genuine concern that some information was being recorded on
documents and in systems outside SAP in circumstances where Mr Seears reasonably required
all relevant information to be included in SAP. Mr Seears ultimately made the decision to
remove this area of concern from the PIP on 7 June 2017, because he formed the view that Mr
Blagojevic was hung up on it and it was distracting them from focusing on the main tasks set
out in the PIP. That was an appropriate and reasonable course to take in the circumstances.’
[29] The events leading up to the revised PIP and the revised PIP are set out at [97] to [100]
and [101] to [108] respectively.
[30] In the course of the Decision the Commissioner made several findings of fact in
relation to critical matters, including:
(i) Mr Seears' decision to place Mr Blagojevic on a PIP was a result of his view in
relation to Mr Blagojevic's performance, and was not influenced by inappropriate
considerations;20
(ii) Mr Blagojevic's complacency and lack of leadership in relation (to) the electrical
and control issues at the Ravensworth Plant and Chilcotts Creek myHSE Action was
an evident and intelligible justification for Mr Seears to place Mr Blagojevic on a
PIP;21 and
(iii) Mr Seears' action in placing Mr Blagojevic on the initial PIP and then revising and
maintaining the PIP was reasonable management action carried out in a reasonable
manner.22
[31] As to (i), the relevant finding is in the following terms:
‘Based on the evidence outlined in paragraphs [72] – [74] above, I am satisfied that Mr Seears’s
made the decision to put Mr Blagojevic a PIP as a result of him forming his own mind as to Mr
Blagojevic’s underperformance. I do not consider that Mr Seears’s motivation in placing Mr
Blagojevic on a PIP was malicious, intended to make Mr Blagojevic’s life miserable or in any
way influenced by Mr Blagojevic’s complaint against Mr Logan. Such a finding is supported
by the fact that Mr Seears decided to place two other AGL employees within the external plant
team on a PIP around February 2017.’23
[32] The Commissioner ultimately found, at [116], that Mr Blagojevic had not, as alleged
by him, been bullied within the meaning of s.789FD of the Act. On that basis the
Commissioner concluded that he did not have the power to make any of the orders sought by
Mr Blagojevic and dismissed the application.
[33] The basis for the Commissioner’s conclusion is set out at [113] to [114]:
20 Decision at [75].
21 Decision at [88], and confirmed at [114].
22 Decision at [114].
23 See Decision at [62].
[2018] FWCFB 4174
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‘On many occasions throughout his employment with AGL, Mr Blagojevic received feedback
from his supervisors that his performance was exceeding expectations. Having become
accustomed to such feedback, it is perhaps understandable why, subjectively speaking, Mr
Blagojevic found Mr Seears’s decision to place him on a PIP to be devastating news. However,
any unreasonableness must arise from the actual management action in question rather than Mr
Blagojevic’s perception of it.
I am satisfied that Mr Blagojevic’s performance in relation to a range of issues, including the
electrical and control issues at the Ravensworth Plant and the Chillcott Creek myHSE Action,
provided an evident and intelligible justification for Mr Seears’ decision to place Mr
Blagojevic on a PIP. It was reasonable for Mr Seears and AGL to expect Mr Blagojevic to
demonstrate leadership in his role as an Asset Engineer by taking responsibility for the timely
completion of work in connection with the assets assigned to Mr Blagojevic, including by
expecting and requiring Mr Blagojevic to influence and, where necessary, place pressure on
others to complete work in the time required. Mr Seears complied with AGL policy in
providing Mr Blagojevic with informal coaching and an opportunity to improve before placing
him on the PIP and thereafter, provided him with a range of measures of support in an attempt
to assist him to improve his performance. Further, Mr Seears own manager, Mr Barry Millar
(AGL’s Head of Engineering), was consulted in relation to Mr Blagojevic’s PIP. Mr Millar
formed the view that Mr Blagojevic’s PIP was reasonable and achievable. The revised PIP
was put in place after lengthy discussions between Mr Blagojevic and Mr Seears and on the
basis of genuine and reasonable concerns on Mr Seears’ part that Mr Blagojevic was not
performing at the necessary level in some aspects of his role as an Asset Engineer. I am
satisfied that Mr Seears’ action in placing Mr Blagojevic on the initial PIP and then revising
and maintaining the PIP was reasonable management action carried out in a reasonable
manner.’
The Appeal
[34] Mr Blagojevic seeks permission to appeal the Decision pursuant to s.604 of the Act.
[35] An appeal under s.604 of the Act is an appeal by way of rehearing. The Commission’s
powers on appeal are only exercisable if there is error on the part of the primary decision
maker.24 There is no right to appeal and an appeal may only be made with the permission of
the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if
satisfied that it is ‘in the public interest to do so.’ Permission to appeal may otherwise be
granted on discretionary grounds.
[36] The task of assessing whether the public interest test is met is a discretionary one
involving a broad value judgment.25 In GlaxoSmithKline Australia Pty Ltd v Makin a Full
Bench of the Commission identified some of the considerations that may attract the public
interest:
‘... the public interest might be attracted where a matter raises issues of importance and general
application, or where there is a diversity of decisions at first instance so that guidance from an
appellate court is required, or where the decision at first instance manifests an injustice, or the
24 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
25 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch
(2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty
Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46] .
[2018] FWCFB 4174
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result is counter intuitive or that the legal principles applied appear disharmonious when
compared with other recent decisions dealing with similar matters.’26
[37] Other than a special case in s 604(2), the grounds for granting permission to appeal are
not specified. Considerations which have traditionally been treated as justifying the grant of
permission to appeal include that the decision is attended with sufficient doubt to warrant its
reconsideration and that substantial injustice may result if refused.27
[38] It will rarely be appropriate to grant permission to appeal unless an arguable case of
appealable error is demonstrated. This is so because an appeal cannot succeed in the absence
of appealable error.28 However, the fact that the Member at first instance made an error is not
necessarily a sufficient basis for the grant of permission to appeal.29
[39] Mr Blagojevic submits that it is in the public interest to grant permission to appeal,
because:30
(i) whether someone can be held accountable over the delivery of projects when
he does not have authority over the execution teams is an issue of general
importance and application; and
(ii) the Decision manifests an injustice, because of the complaints that are set out
at [40] below.
[40] Mr Blagojevic’s complaints about the Decision can be summarised31 as follows:
(i) the Commissioner failed to consider whether the conduct that Mr Blagojevic
complained of amounted to bullying, and instead only considered the examples
that Vice President Hatcher set out in Mac v BOQ at [99];32
(ii) the Commissioner incorrectly dealt with the reasonableness of Mr Seears’
concerns about Mr Blagojevic’s work performance, and an alternative
approach is for the Commission to retain an expert engineer to answer whether
someone could be held accountable for the execution of work when the person
does not have any authority over execution teams;33
(iii) the Commissioner should not have relied on Mr Seears’ evidence, because
Mr Seears was not a credible witness, his actions were malicious, and the file
26 [2010] FWAFB 5343, 197 IR 266 at [24] – [27]
27 Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481.
28 Wan v AIRC [2001] FCA 1803 at [30]
29 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services
Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review in Coal & Allied
Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia
represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
30 Submissions of Miroslav Blagojevic dated 22 June 2018 at [4].
31 As set out in the Respondent’s Outline of Submissions at [22]-[23] and uncontested by Mr Blagojevic; See Transcript 13
July 2018 at [2]-[23].
32 Submissions of Miroslav Blagojevic dated 22 June 2018 at [5].
33 Submissions of Miroslav Blagojevic dated 22 June 2018 at [15].
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note he created outlining his concerns about Mr Blagojevic’s performance was
unreliable;34
(iv) the evidence does not disclose any evident and intelligible justification for
Mr Seears to have placed Mr Blagojevic on a PIP, and the findings that the
areas of concern listed in the PIP are made out is contrary to evidence that
Mr Blagojevic led;35
(v) there was no evident and intelligible justification for Mr Seears to place
Mr Blagojevic on the revised PIP;36 and
(vi) the PIP and the revised PIP was implemented in an unreasonable manner, and
it was not open to the Commissioner to find that:37
(a) Mr Seears did not deliberately tighten the timelines for the completion of
expectations and work actions in the revised PIP; and
(b) the expectations, work actions and or timelines contained in either the
initial PIP or the revised PIP were not unreasonable or unachievable.
[41] It is convenient to deal first with the public interest grounds advanced by
Mr Blagojevic. As to the first ground ([39](i)), the issue of when and to what extent someone
can be held accountable for the delivery of a project is a matter to be determined on the
available evidence in a particular case. Contrary to the submission advanced by
Mr Blagojevic it is not an issue of general importance or application.
[42] To the extent that Mr Blagojevic’s submissions suggest that the issue of general
importance or application is the approach the Commission must take when dealing with the
reasonableness of a supervisor's concerns about an employee's performance, we note that this
issue was addressed in Appellant v Respondent.38 In that matter the Full Bench refused
permission to appeal in that instance, and confirmed that the Commission is not required to
undertake a merits review of each aspect of an employer's assessment of an employee's
performance when it is considering whether behaviour amounts to reasonable management
action.39 We would also observe that Mr Blagojevic does not challenge the principles adopted
by Commissioner Saunders, rather he challenges the Commissioner’s findings and
conclusions in giving effect to those principles.
[43] As to the second ground ([39](ii)), Mr Blagojevic contends that the Commissioner
erred in the manner he identifies (summarised at [40]) and on that basis it is said that the
Decision manifests an injustice. For the reasons set out below, we are not persuaded that
Mr Blagojevic has established an arguable case of error in respect of the various issues
identified and accordingly we are not satisfied that the Decision manifests an injustice.
34 Submissions of Miroslav Blagojevic dated 22 June 2018 at [26].
35 Submissions of Miroslav Blagojevic dated 22 June 2018 at [11].
36 Submissions of Miroslav Blagojevic dated 22 June 2018 at [6] and [7].
37 Submissions of Miroslav Blagojevic dated 22 June 2018 at [25].
38 [2015] FWCFB 1972.
39 Appellant v Respondent [2015] FWCFB 1972 at [30].
[2018] FWCFB 4174
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[44] Accordingly, no issue of general application or principle arises; the Decision does not
manifest an injustice and nor is the result counter-intuitive, such as to enliven the public
interest.
[45] As mentioned earlier, a finding that it is ‘in the public interest’ to grant permission to
appeal requires the grant of permission; but permission to appeal may otherwise be granted
on discretionary grounds. We will now consider whether the submissions advanced by
Mr Blagojevic demonstrate an arguable case of error in the Decision. Before turning to deal
with each of the arguments we propose to say something about the general approach to
challenging findings of fact on appeal.
[46] In the joint reasons in Fox v Percy,40 in a passage which has been applied since,41
Gleeson CJ, Gummow and Kirby JJ said:
‘[An appellate court] must, of necessity, observe the ‘natural limitations’ that exist in the case of
any appellate court proceedings wholly or substantially on the record.42 These limitations
include the disadvantage that the appellate court has when compared with the trial judge in
respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which an
appellate court reading the transcript, cannot always fully share.’43
[47] More recently, in Short v Ambulance Victoria,44 the Full Court of the Federal Court
summarised the principles to be applied by an appellate court or tribunal when considering
challenges on appeal to findings of fact made at trial in circumstances where those findings
rested on assessments of credibility:
‘It was central to Mr Short’s case that the real reasons for the refusal to appoint him to higher
duties were not as Mr Standfield and Ms Ray testified, and he attacked the credibility of their
account. The authorities set a high bar for an appellant seeking to overturn credit findings. In
Devries v Australian National Railways Commission the majority per Brennan, Gaudron and
McHugh JJ observed:
More than once in recent years, this Court has pointed out that a finding of fact by a trial
judge, based on the credibility of a witness, is not to be set aside because an appellate court
thinks that the probabilities of the case are against - even strongly against - that finding of fact.
If the trial judge’s finding depends to any substantial degree on the credibility of the witness,
the finding must stand unless it can be shown that the trial judge “has failed to use or has
palpably misused his advantage” or has acted on evidence which was “inconsistent with facts
incontrovertibly established by the evidence” or which was “glaringly improbable”.
In Fox v Percy at [26] - [31] Gleeson CJ, Gummow and Kirby JJ reiterated that a finding of
fact by a trial judge, based on the credibility of a witness, will usually only be set aside upon
40 Fox v Percy (2003) 214 CLR 118; 197 ALR 201; 38 MVR 1; [2003] HCA 22 at para 23.
41 Australian Securities and Investments Commission v Hellicar (2012) 86 ALJR 522; 286 ALR 501; 88 ACSR 246; [2012]
HCA 17 at para 130; Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357;
270 ALR 204; [2010] HCA 31 at para 76.
42 Dearman v Dearman (1908) 7 CLR 549 at 561; 15 ALR 287 at 291; [1908] HCA 84. See also Scott v Pauly (1917) 24
CLR 274 at 278-81; 24 ALR 27 at 31-3; [1917] HCA 60.
43 Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 at 637; [1985] 1 AII ER 635 at 637, per Lord
Scarman, with reference to Joyce v Yeomans [1981] 1 WLR 549 at 556; [1981] 2 AII ER 21 at 26. See also Chambers v
Jobling (1986) 7 NSWLR 1 at 25.
44 Short v Ambulance Victoria [2015] FCAFC 55 at [98]-[99].
[2018] FWCFB 4174
12
appeal where incontrovertible facts or uncontested testimony demonstrate that the judge’s
conclusions are erroneous, or where it is concluded that a decision was clearly improbable or
contrary to compelling inferences.’ (citations omitted).
[48] These principles have been consistently applied by Full Benches of the Commission
for many years. In the context of appeals, Full Benches have consistently held that findings of
fact made by a Member at first instance must stand unless it can be shown that the Member
‘has failed to use or has palpably misused (their) advantage’ or has acted on evidence which
was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was
‘glaringly improbable’.45
[49] We turn to the stated complaints about the Decision, noting that there is some overlap
in those matters.
(i) Failure to consider whether the conduct that Mr Blagojevic complained of amounted to
bullying
[50] It is evident from a reading of the Decision that the Commissioner refers to, describes,
and assesses the behaviours that Mr Blagojevic complained amounted to bullying by
Mr Seears. Amongst other matters, Mr Blagojevic contended that the decision to introduce the
PIPs ‘lacked any evident and intelligible justification such that it would be considered by a
reasonable person to be unreasonable in all the circumstances’.46
[51] The Decision acknowledges Mr Blagojevic’s opinion that the decision to introduce the
PIP and the revised PIP was unreasonable,47 and that the implementation of the initial and
revised PIP was carried out in an unreasonable manner.48 However, as the Commissioner
correctly observes, any unreasonableness must arise from the actual management action rather
than Mr Blagojevic’s perception of it.49 In this regard, the Commissioner was satisfied on the
available evidence that:
(a) Mr Seears genuinely held concerns about Mr Blagojevic’s performance;50
(b) Mr Seears’ concerns provided an evident and intelligible justification for placing
Mr Blagojevic on both the PIP51 and the revised PIP;52
(c) the work expectations, actions and timelines in either the initial PIP or the revised
PIP were not unachievable or unreasonable;53 and
(d) the PIP was implemented in accordance with AGLM's policies,54 and not in an
unreasonable manner.55
45 Barwon Health – Geelong Hospital v Dr Mark Colson; Dr Mark Colson v Barwon Health – Geelong Hospital [2013]
FWCFB 4515; City Motor Transport Group v Devcic [2014] FWCFB 6074; Jones v Ciuzelis [2015] FWCFB 84; Colin
Wright v AGL Loy Yang Pty Ltd [2016] FWCFB 4818.
46 Transcript 13 July 2018 at [29].
47 Decision at [23], [76], [90].
48 Decision at [24].
49 Decision at [19] and [113].
50 Decision at [75].
51 Decision at [88] and [92].
52 Decision at [101].
53 Decision at [105].
54 Decision at [66], [70], [73], and [114].
http://www.fwc.gov.au/decisionssigned/html/2015fwcfb84.htm
http://www.fwc.gov.au/decisionssigned/html/2014fwcfb6074.htm
[2018] FWCFB 4174
13
[52] In so doing, the Commissioner did not simply rely upon the examples of bullying
conduct found in Mac v BOQ or the subjective views of any of the parties. Rather, he
objectively considered the conduct raised in the application based upon the evidence before
the Commission, as he was required to.
We are not satisfied that an arguable case of appealable error has been established in relation
to this ground of appeal.
(ii) The reasonableness of Mr Seears’ concerns with Mr Blagojevic's work performance
[53] The Commissioner correctly identified the approach he was required to take at [20]
and [21] of the Decision. The Commissioner was not required to review Mr Blagojevic’s
performance and substitute his own assessment of whether or not Mr Blagojevic’s
performance was satisfactory for that of Mr Seears.56 It was sufficient for the Commissioner
to find that Mr Seears’ concerns were genuinely held and that there was an evident and
intelligible justification for them. The Commissioner’s findings in this regard were clear and
based on evidence which he recorded inthe Decision..
[54] This ground of appeal does not disclose any arguable case of appealable error.
(iii) Findings about Mr Seears’ credibility and Mr Seears’ motives
[55] The Commissioner found that each of the witnesses (including Mr Seears) generally
gave truthful evidence about the relevant matters of fact.57
[56] The Commissioner was satisfied by the evidence, including Mr Seears’ evidence, that
Mr Seears’ motivation in placing Mr Blagojevic on a PIP was not malicious.58
[57] Mr Blagojevic asserts that Mr Seears was not a credible witness. However, the
Commissioner was well placed to make this assessment based on his observation of the
witness.
[58] In this regard, Mr Blagojevic complains about the Commissioner’s reference to
Mr Seear’s notes of his interactions with Mr Blagojevic59 as ‘contemporaneous’, pointing to
what he identifies as the properties of the document.
[59] Mr Seears did not describe his notes as ‘contemporaneous’ in his statement,60 or in the
evidence that he gave during the hearing, and was asked no question relevant to the issue.
Accordingly, there is no evidence in relation to the date they were first created, or, if created
after the event, whether they were prepared from contemporaneous primary notes.
[60] However, even if the finding that Mr Seears notes were contemporaneous was not
based on evidence, this does not establish an appealable error. The Commissioner found
Mr Seears to be a credible witness, and the information contained in Mr Seears’ file note is
consistent with the evidence that Mr Seears gave at the hearing. The Commissioner had the
55 Decision at [99] and [105].
56 Appellant v Respondent [2015] FWCFB 1972 at [30].
57 Decision at [6].
58 Decision at [72] – [75].
59 Statement of Mitchell Seears dated 27 February 2018; attachment MS-2.
60 Statement of Mitchell Seears dated 27 February 2018 at [5].
[2018] FWCFB 4174
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benefit of observing Mr Blagojevic cross examine Mr Seears about the matters in the file note
during the hearing. We observe that the Commissioner also directly questioned Mr Seears
about a range of issues that arose from Mr Blagojevic’s competing contentions.
[61] This ground of appeal does not disclose any arguable case of appealable error. We are
not satisfied that it has been shown that the Commissioner ‘has failed to use or has palpably
misused (his) advantage’ or has acted on evidence which was ‘inconsistent with facts
incontrovertibly established by the evidence’ or which was ‘glaringly improbable’.
(iv) No evident and intelligible justification to place Mr Blagojevic on a PIP
[62] The Commissioner identified the issues for determination and set out the approach that
he adopted in resolving the issues at [20] and [21] of the Decision.
[63] On the basis of the evidence before him, the Commissioner was satisfied that the
following aspects of Mr Blagojevic’s performance provided an evident and intelligible
justification for Mr Seears to place Mr Blagojevic on a PIP:
(a) Mr Blagojevic’s lack of leadership and regular and urgent communications
with relevant personnel, which resulted in the myHSE Action that was
assigned to him not being completed to the required standard by the extended
deadline of 16 February 2017;61
(b Mr Blagojevic’s lack of leadership and failure to put ‘pressure’ on relevant
personnel to ensure that works within his plant were completed in a timely
manner;62 and
(c) Mr Blagojevic’s understanding of forecasting and budget control.63
[64] The Commissioner also considered that Mr Seears’ requirement that all relevant
information be included in SAP was reasonable, and Mr Seears had genuine concerns that
Mr Blagojevic was not complying with this requirement when he decided to place
Mr Blagojevic on the PIP.64
[65] The Commissioner considered that Mr Seears acted reasonably by removing area of
concern five, which related to Mr Blagojevic’s use of systems other than SAP to store his
strategy for equipment, when Mr Seears formed the view that it was distracting Mr Blagojevic
from focussing on the main tasks in the PIP.65
[66] Mr Blagojevic asserts that a number of the findings that the Commissioner made in
determining that there was an evident and intelligible justification to place Mr Blagojevic on
the PIP are not correct, because they are contrary to the evidence that Mr Blagojevic led. For
example, Mr Blagojevic contends that:
61 Decision at [87] - [88]. The circumstances of the Chilcotts Creek myHSE action were considered at [54] – [61], and
evidence and findings about the responsibilities of Mr Blagojevic's role are set out at [79] – [87] of the Decision.
62 Decision at [87] and [88]. The circumstances of Mr Seears' concerns about the condition of the Ravensworth Plant are at
[50] – [53], [62] of the Decision.
63 Decision at [92].
64 Decision at [96].
65 Decision at [96].
[2018] FWCFB 4174
15
(a) the finding that the position description applicable to the role of Asset
Engineer applied to Mr Blagojevic is contrary to Mr Blagojevic’s evidence;66
(b) Mr Blagojevic did not approve a $15,000 purchase order to ALS Limited for
incomplete work;67
(c) Mr Blagojevic only had responsibility for the Instrumentation and Control
(I&C) works between September 2016 and May 2017, and they remain
incomplete, however, Mr Blagojevic is the only person that has been pursued
over them;68
(d) Mr Blagojevic escalated issues to Mr Seears during fortnightly meetings with
the external plant team (called ‘RARs’), and this was sufficient escalation;69
(e) Mr Blagojevic demonstrated leadership skills, when he realised that the I&C
Team had not performed I&C works in his plant, he raised the issue with the
I&C Manager;70
(f) ‘Area of concern 5’ in the PIP (relating to the requirement for all equipment
strategy to reside in SAP) was not limited to Mr Blagojevic’s use of systems
other than SAP to store his strategy for equipment, and included Mr
Blagojevic’s actions in updating a strategy document that resided outside of
SAP in accordance with a myHSE requirement;71 and
(g) Mr Seears was aware that another employee was responsible for updating
information about pressure vessels in SAP when he decided to place Mr
Blagojevic on the PIP.72
[67] The Commissioner considered and gave weight to Mr Blagojevic’s evidence in regard
to each of the findings he made, expressly referring to Mr Blagojevic’s position in relation to
issues in many instances.
[68] Amongst other matters, there was, in effect, a dispute in the evidence about the extent
of the responsibilities that attached to Mr Blagojevic’s role for works outside of his immediate
budget accountability and the actions that might be taken to influence the progress in relation
to any such work. Mr Blagojevic’s oral submissions before the Full Bench highlighted among
other things the existence of that dispute.
[69] There was sufficient evidence to support the Commissioner's findings about these
matters and to support his conclusion that there was an evident and intelligible justification
for Mr Seears’ decision to place Mr Blagojevic on a PIP. The relevant evidence is also set out
in the Decision. The challenged findings were reasonably open on the evidence.
66 Submissions of Miroslav Blagojevic dated 22 June 2018 at [12] – [14]. The Commissioner deals with this at [79] – [85] of
the Decision.
67 Submissions of Miroslav Blagojevic dated 22 June 2018 at [4] and [8]. The purchase order is referred to at [56], [60] and
[89] of the Decision.
68 Submissions of Miroslav Blagojevic dated 22 June 2018 at [16].
69 Submissions of Miroslav Blagojevic dated 22 June 2018 at [16].
70 Submissions of Miroslav Blagojevic dated 22 June 2018 at [16].
71 Submissions of Miroslav Blagojevic dated 22 June 2018 at [20].
72 Submissions of Miroslav Blagojevic dated 22 June 2018 at [19].
[2018] FWCFB 4174
16
[70] This ground of appeal does not establish an arguable case of error.
(v) No evident and intelligible justification to place Mr Blagojevic on the revised PIP
[71] Mr Blagojevic contends that there was no feedback given to him about not complying
with the first PIP and that the second PIP was introduced because, amongst other matters,
Mr Seears did not like the outcome of the first PIP and wanted the Appellant to fail.73
[72] Based on Mr Seears’ evidence, the Commissioner was satisfied that Mr Seears
continued to hold genuine, reasonable and justified concerns in relation to Mr Blagojevic's
performance at the time the revised PIP was put in place, and this was an evident and
intelligible justification to place Mr Blagojevic on the revised PIP.74
[73] Mr Seears met with Mr Blagojevic between 15 March 2017 and 23 June 2017 to
discuss the PIP.75 Ms Price (the employer’s People and Culture Business Partner) also
attended those meetings, and her notes of those meetings were admitted into evidence.76
Ms Price’s notes show that:
(a) Mr Blagojevic did not agree to the PIP actions and timeframes until 23 June 2017,
although he refused to sign the PIP;77 and
(b) Mr Seears provided Mr Blagojevic with feedback on his performance during those
meetings.78
[74] Many of the concerns about the scope of the responsibilities and the extent of actions
taken by Mr Blagojevic set out earlier (at [64]) remained at this time. There was also
apparently a difference of view about priorities associated with some of the uncompleted
tasks. The existence of this difference of view was in our view reinforced by Mr Blagojevic’s
oral submissions.
[75] The Commissioner’s findings on all of these aspects were reasonably open on the
evidence and no arguable case of appealable error has been shown in respect of this ground of
appeal.
(vi) Finding that the PIP was not implemented unreasonably
[76] The Commissioner was satisfied that Mr Seears’ decision to place Mr Blagojevic on
the initial PIP, and then revising and maintaining the PIP, was reasonable management action
carried out in a reasonable way.79
[77] In reaching this conclusion, the Commissioner expressly considered and rejected
Mr Blagojevic’s contentions that Mr Seears forced Mr Blagojevic to agree to the timeline for
73 Appeal transcript at PN67 to PN70.
74 Decision at [101]
75 Decision at [97].
76 Decision at [98].
77 Statement of Anthea Price dated 27 February 2018, attachment AP-3 (meeting note from 23 June 2017).
78 See, for example, statement of Anthea Price dated 27 February 2018, attachment AP-3 (meeting notes from 24 March
2017, 7 June 2017, 22 June 2017).
79 Decision at [114].
[2018] FWCFB 4174
17
the completion of expectations and work actions in the revised PIP,80 and that Mr Seears
intentionally tightened the timelines in the PIP so that it was harder for Mr Blagojevic to meet
them.81
[78] Mr Blagojevic also contended that the PIPs were implemented unreasonably due to the
impact upon his mental health, which was, or should have been, evident to the Respondents. It
appears to be common ground that Mr Blagojevic advised his employer that he was visiting a
Psychologist, was on medication, and that he was not coping with the implementation of the
PIP. We accept that the continuation of a PIP or similar process where a worker is not well
enough to participate in such a process, may, depending upon the circumstances, constitute
unreasonable behaviour. That assessment must be made objectively, taking into account all of
the relevant circumstances.
[79] In this case, the Commissioner dealt with this aspect at [99] of the decision in the
following terms:
“I accept that at some point during these meeting, Mr Seears realised that
Mr Blagojevic’s health was being adversely affected by the PIP process. Although
Mr Seears (and AGL) knew the process was affecting Mr Blagojevic’s health, I am not
satisfied that, in continuing to impose the PIP on him, Mr Seears was carrying out the
implementation of the PIP in an unreasonable manner. Mr Seears offered
Mr Blagojevic his personal support and coaching and confirmed his ability to access
AGL’s EAP. 87 I accept that Mr Seears and/or Ms Price also took the following
reasonable actions in response to requests made by Mr Blagojevic at meetings during
the period from March to June 2017:
made enquiries to ascertain whether there were any suitable alternative roles in
AGL;
organised for the initial PIP to be independently reviewed by Mr Barry Miller, Head
of Engineering. Ms Price gave evidence that during a meeting between herself, Mr
Miller and Mr Blagojevic on 31 May 2017, Mr Miller explained to Mr Blagojevic
that he had reviewed the PIP and he considered the expectations to be reasonable and
achievable. Mr Miller did not give evidence in these proceedings; however, I accept
Ms Price’s account of the meeting, which is supported by her minutes of the
meeting;
acted slowly throughout the PIP process to ensure Mr Blagojevic understood the
requirements of the plan;
referred Mr Blagojevic to Ms Nam Silvestri, AGL’s Return to Work Coordinator.
This step was taken when it appeared that Mr Blagojevic’s mental health was
suffering. AGL asked Mr Blagojevic to give Ms Silvestri permission to speak to his
treating doctor to obtain information about his mental health. As a result of that
process, Mr Blagojevic’s treating doctor completed a treating doctor questionnaire
and provided it to AGL; and
removed the fifth area of concern from the PIP.”
80 Decision at [103].
81 Decision at [105].
[2018] FWCFB 4174
18
[80] These findings were reasonably open to the Commissioner given the extensive
evidence82 about Mr Seears’ awareness of the issue, the strategies adopted to support
Mr Blagojevic, and the fact that when it became clear that the Appellant was not capable of
coming to work or participating in the PIP, the PIP was paused. Further, the findings about
the objective justification for the implementation of the PIPs are also relevant in this context.
[81] This ground of appeal does not demonstrate an arguable case of appealable error.
Conclusion
[82] In the Decision, the Commissioner dismissed the application83 on the basis that he was
satisfied that Mr Seears’ action in placing Mr Blagojevic on both the initial PIP and the
revised PIP, and the implementation of the initial and revised PIP, was reasonable
management action carried out in a reasonable manner.84
[83] The Commissioner also determined that Mr Blagojevic was not bullied at work by the
Respondent and made the following observations:
‘[113] On many occasions throughout his employment with AGL, Mr Blagojevic
received feedback from his supervisors that his performance was exceeding
expectations. Having become accustomed to such feedback, it is perhaps
understandable why, subjectively speaking, Mr Blagojevic found Mr Seears’s decision
to place him on a PIP to be devastating news. However, any unreasonableness must
arise from the actual management action in question rather than Mr Blagojevic’s
perception of it.’
[84] In this regard, we also note that the Decision confirms that Mr Blagojevic is an
experienced, diligent and hard-working Professional Engineer with particular skills that are
highly valued.85
[85] The Commissioner further concluded:
‘[114] I am satisfied that Mr Blagojevic’s performance in relation to a range of issues,
including the electrical and control issues at the Ravensworth Plant and the Chillcott
Creek myHSE Action, provided an evident and intelligible justification for Mr Seears’
decision to place Mr Blagojevic on a PIP. It was reasonable for Mr Seears and AGL to
expect Mr Blagojevic to demonstrate leadership in his role as an Asset Engineer by
taking responsibility for the timely completion of work in connection with the assets
assigned to Mr Blagojevic, including by expecting and requiring Mr Blagojevic to
influence and, where necessary, place pressure on others to complete work in the time
required. Mr Seears complied with AGL policy in providing Mr Blagojevic with
informal coaching and an opportunity to improve before placing him on the PIP and
thereafter, provided him with a range of measures of support in an attempt to assist
him to improve his performance. Further, Mr Seears own manager, Mr Barry Millar
(AGL’s Head of Engineering), was consulted in relation to Mr Blagojevic’s PIP. Mr
82 Transcript 10 April 2018 at PN1466 to PN1566.
83 Decision at [116].
84 Decision at [114].
85 Decision at [1].
[2018] FWCFB 4174
19
Millar formed the view that Mr Blagojevic’s PIP was reasonable and achievable. The
revised PIP was put in place after lengthy discussions between Mr Blagojevic and Mr
Seears and on the basis of genuine and reasonable concerns on Mr Seears’ part that Mr
Blagojevic was not performing at the necessary level in some aspects of his role as an
Asset Engineer. I am satisfied that Mr Seears’ action in placing Mr Blagojevic on the
initial PIP and then revising and maintaining the PIP was reasonable management
action carried out in a reasonable manner.
[115] I reject the contention that the PIP process was put in place by Mr Seears in an
effort to have Mr Blagojevic removed from AGL; instead, I am satisfied that it was put
in place in a genuine attempt to improve Mr Blagojevic’s performance.’
[86] For the reasons given earlier (at [41] to [44]) we are not satisfied that it is in the public
interest to grant permission to appeal. Further, having regard to the grounds of appeal, the
submissions of the parties and the circumstances of this matter, we do not identify any
arguable case of an appealable error on the part of the Commissioner. We are therefore not
satisfied that the Decision is attended with doubt such as to warrant its reconsideration on
appeal and we are not persuaded that substantial injustice may result if permission to appeal is
refused.
[87] Permission to appeal is refused.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR609017
Appearances:
M Blagojevic on his own behalf.
D Williams, with permission, for the Respondent.
Hearing details:
Sydney.
2018.
13 July.
