1
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Stephen Cain
v
Stuart Downing; Logan Howlett; Lee-Anne Smith; Kevin Allen
(AB2020/244)
DEPUTY PRESIDENT BEAUMONT PERTH, 8 MAY 2020
Application for an FWC order to stop bullying – interim order to stop bullying – Leanne
Mayson v Mylan Health Pty Ltd followed - statutory interpretation of the term ‘at work’ –
special paid leave and suspension said to be ‘at work’
[1] On 23 October of 2019, Mr Stephen Cain, the Chief Executive Officer (CEO) of the
City of Cockburn (the City), emailed a complaint of workplace bullying to the Elected
Members of the City’s Council (the Council). In response, the Council held an informal
meeting to discuss Mr Cain’s complaint. They reached consensus that an investigation was
necessary, Mr Cain’s request for personal leave would be accepted and his IT access would be
temporarily suspended during the investigation - enabling a reprieve from his purported
excessive workload, an issue which he had identified was causing him stress.
[2] When the complaint was made, it was evident it centred on the alleged conduct of
Councillor Leanne Smith (Councillor Smith). Mr Cain noted in his separate letter to
Mayor Logan Howlett, of 24 October 2019, ‘[T]he concerns outlined in this document relate
to interpersonal relations between me and Councillor Smith and the impact this has had on
me’.1 The impact referred to was upon Mr Cain’s health and well-being.
[3] By letter of 28 October 2019, Mayor Howlett confirmed receipt of Mr Cain’s
complaint and informed him an external consultant would investigate the matter. Mayor
Howlett continued that Mr Cain would not be required to attend work until the investigation
was complete and due consideration had been given to the investigative report by Council.2
In the letter it was explained Mr Cain’s focus was to be on his physical and mental health. A
Special Council Meeting (SCM) was held on 4 November 2019, and a subsequent letter was
issued to Mr Cain of 6 November 2019, where he was again instructed not to attend work or
work related events, IT access was suspended, and Mr Cain would be placed on special paid
leave.3
1 Affidavit of Stephen Gerard Cain – 8 April 2020 (First Cain Affidavit) Annexure SC-4.
2 Ibid Annexure SC-2.
2 Ibid Annexure SC-2.
3 Ibid Annexure SC-6.
[2020] FWC 1914
DECISION
E AUSTRALIA FairWork Commission
[2020] FWC 1914
2
[4] On 25 November 2019, Mayor Howlett received an email from Mr Cain that referred
to the direction not to attend work and the employment restrictions. The email concluded that
the ‘apparent reason for the City and each of the Elected Members when they made the
resolution to take such adverse action against me would appear to be because of my
complaint’. By email dated 28 November 2019, Mr Cain again informed Mayor Howlett that
there was no proper basis for the Council to place him on special paid leave under his contract
– and again referred to such conduct being improper and adverse action against him because
he had made a complaint.4
[5] Mr Cain was interviewed on 5 December 2019 by a Dr Helen Sitlington, the
consultant engaged to conduct the workplace investigation into Councillor Smith’s alleged
workplace bullying. Mr Cain had prepared notes for his meeting with Dr Sitlington5 and in
those notes he tabled complaints about Councillor Kevin Allen. The complaints included that
Councillor Allen had persistently made derogatory remarks about him in emails and had
repeatedly undermined him in the CEO Performance Review Committee meetings.6 Mr Cain
noted that the intention of Councillor Allen had been to have Mr Cain replaced – which, Mr
Cain said, was confirmed in an email exchange between two other Councillors.
[6] Come 6 December 2019 however, Mr Cain now faced allegations of misconduct and
was suspended on pay pending an investigation into the allegations (misconduct
investigation).7 At the time of the hearing, Council had not yet determined the outcome of
the misconduct investigation; a meeting of the Council was to be convened for this purpose,
on 16 April 2020.
[7] This matter was expedited to hearing because the utility of the proposed orders sought
(see Annexures A and B) would be nullified if the Commission did not deliver its ‘verdict’
before the SCM on 16 April 2020.
[8] It followed that on 6 April 2020, Mr Cain applied for urgent interim orders to prevent
Mayor Howlett, Councillor Smith, and Councillor Allen, from effectively having any further
involvement about, concerning, or in relation to the bullying complaint or misconduct
allegations (see Annexure A to this decision). The interim order extended to a Mr Stuart
Downing, the Acting CEO, who Mr Cain had appointed. In short, the interim order required
Mr Downing to refrain from taking any further action in the discussion, consideration of, or
the making by any person of any determination concerning or in the relation to the bullying
complaint and misconduct allegations. In the alternative, where interim orders were not
available, Mr Cain sought a declaration and final orders (see Annexure B to this decision).
[9] At this juncture it should be said, Mr Cain initially made a complaint of workplace
bullying to the Council in early January 2020. Prior to that time Mr Cain had, in
correspondence to the City, alluded to the elements generally associated with a general
protections claim. However, by 10 January 2020, his focus appeared to have turned squarely
to an application for an order to stop bullying against five named respondents. Those five
named respondents were the City, Mr Stuart Downing, Acting CEO of the City,
4 Witness Statement of Logan Kenneth Howlett (Mayor Howlett Witness Statement) Annexure LKH-9.
5 First Cain Affidavit Annexure SC-9.
6 Ibid Annexure SC-9.
7 Ibid Annexure SC-11.
[2020] FWC 1914
3
Mayor Howlett, Councillor Smith and Councillor Allen; all of whom received a draft Form
F72 on 10 January 2020. That draft Form F72 was however, not filed with this Commission.
[10] The outcomes of Dr Sitlington’s report were communicated to Mr Cain in a letter of
12 March 2020, which confirmed that Dr Sitlington’s investigation report was presented to
Council for consideration at the SCM on 11 March 2020.8 The letter provided that at the
SCM the Council had passed several resolutions, including to accept and implement
initiatives as recommended by the City’s lawyers, Jackson McDonald in response to Mr
Cain’s bullying complaint.
[11] Having had the opportunity to hear from Counsel for Mr Cain (instructed by Allion
Partners) and Counsel for Mr Downing and the City, concerning whether the Commission had
jurisdiction to make interim orders in this matter as requested, I decided it did not, having
adopted the approach of the Deputy President in Leanne Mayson v Mylan Health Pty Ltd and
others (Mayson).9
[12] I concluded that the Commission had no power to make an order – whether interim or
final, to stop ‘bullying’, unless satisfied that the two limbs in s.789FF(1)(b) had been met.
First, the Commission must be satisfied that Mr Cain has been bullied at work by an
individual or group of individuals and second, there is a risk that at work Mr Cain will
continue to be bullied by the individual or group of individuals identified in his application.
[13] Based on the evidence before me, I was not satisfied that Mr Cain had been bullied at
work by the First Respondent (Mr Stuart Downing), the Second Respondent (Mayor Logan
Howett) or the Fourth Respondent (Mr Allen).
[14] Regarding the Third Respondent, Councillor Smith, I was satisfied that
Councillor Smith had engaged in repeated unreasonable behaviour toward Mr Cain for a
period, noting however that for approximately two months in 2020, Councillor Smith was
suspended. However, with respect to s789(FF)(1)(b)(ii), I was not satisfied that there is a risk
that at work Mr Cain will continue to be bullied by Councillor Smith.
[15] Based on the above, I concluded the Commission was absent jurisdiction to make the
proposed interim order sought, or the proposed final order. Therefore, I dismissed the
application and, accordingly, an Order10 was issued to that effect on 16 April 2020.
[16] During the hearing several contentious issues were raised, which has regrettably led to
a lengthy decision. Those issues included whether Mr Cain was ‘at work’ when the
unreasonable repeated behaviour was said to have occurred, and whether the orders sought
were an available remedy. Further, while the City was not a ‘named person’ or respondent to
the proceedings, I nevertheless decided to hear from it given its enmeshment in the factual
matrix and its status as employer.11 My reasons for the decision follow.
8 Ibid Annexure SC-10.
9 [2020] FWC 1404 (‘Mayson’).
10 PR718272.
11 Fair Work Act 2009 (Cth), s.590.
[2020] FWC 1914
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Background
[17] The background to this matter is detailed and extensive. Material filed was
voluminous. An appreciation must then be had that not all nuances of the evidence are
covered. Yet, a forensic lens was warranted at times, in light of the numerous particulars
relied upon by Mr Cain to evince he had been bullied and was at risk of such continuation.
[18] Mr Cain commenced employment with the City as its CEO in November 2004.12 He
purported that in an Ordinary Council Meeting in August 2019, his contract of employment
was extended until June 2023.
City of Cockburn
[19] Mr Cain gave the following uncontested evidence concerning the City:
The City is a ‘local government’ as defined in section 1.4 of the Local Government
Act 1995 (WA) (LG Act). It is designated a ‘city’ further to section 2.4 and 2.5(1) of
the LG Act. The City is a body corporate, with the capacity of a legal person and can
be sued in its name by reason of section 2.5(2), (3) and (6) of the Act.
Section 3.59 of the Act expressly addresses commercial enterprises by local
governments. By section 6.15 of the Act, a local government may receive revenue
and income from a number of different sources in addition to rate and services
charges.
The City’s activities include commercial and land leases, an agreement on royalties
from a small power station (at its landfill), a marina (that charges commercial fees),
and a commercial landfill that included a re-cycled goods shop…
On 7 April 2020, at https://www.cockburn.wa.gov.au/getattachment/44d515a9-8050-
4f5b-926a-72a700fc026f/ECM)8498510_v1_Annual-Business-Plan-2019-2020-
pdf.aspx, I found a document that is represented as the City’s Annual Business Plan
for 2019/2020. I understand from page 4 and 5 of this document under the heading
‘Operating Income’ that the City’s total income for the period is anticipated to be
around $157M of which fees and charges are budgeted to be $29.36m (about
18.7% of income).13
The bullying complaint and leave
[20] The day before Mr Cain emailed his bullying complaint to the Elected Members, he
received an email from Councillor Allen, who had forwarded an email concerning issues at a
property where the occupants had burned material generating purported toxic fumes.
Councillor Allen’s email dated 22 October 2019, and addressed to Mr Cain, and two of the
City’s Executive Team, stated ‘[W]hen are we going to grow some balls and act on this
location?’.14 Mr Cain’s response to Councillor Allen’s email was to forward it to Mr Arndt
(Director of Planning and Development), requesting him to file it, add it to the chronological
12 First Cain Affidavit Annexure SC-4.
13Ibid [9]-[11].
14 Ibid Annexure SC-18.
[2020] FWC 1914
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summary, and note to Councillor Allen that his remarks are not acceptable (referencing the
Elected Members’ Code of Conduct).15
[21] Mr Cain said that on 23 October 2019 he sent an email to each of the Elected
Members16 and a letter to Mayor Howlett17 outlining that over a long period, the three Elected
Members had engaged in repeated behaviour toward him that had resulted in him feeling
depressed, stressed and exhausted.18
[22] The email dated 23 October 2019 to Elected Members outlined a series of complaints
that had been made against Mr Cain over a period. In brief those complaints included:
a) a complaint lodged several years ago by a former Elected Member to the Corruption
and Crime Commission (CCC). The CCC handed the matter over to the Public Sector
Commission (PSC) who found that the complaint was of no substance and
subsequently dismissed it;
b) a complaint by an Elected Member in 2018 by way of an ‘anonymous’ letter to
Mayor Howlett outlining a series of grievances and allegations. Mr Cain advised
Mayor Howlett that the City’s Director of Governance and Community Services
would review the complaint and report back his findings to Mayor Howlett, which
occurred. The complaint was unsubstantiated; and
c) innuendo with regard to the CEO Review and Performance Assessment process
(discussed at an August Council Meeting). Mayor Howlett was briefed, and Mr Cain
referred the matter to the PSC, who through the governing body of the sector, the
Department of Local Government, Sport and Cultural Industries, appointed a senior
investigator to assess the complaint. The complaint was unsubstantiated and
dismissed.19
[23] Mr Cain further explained in his email dated 23 October 2019, that over the past
month all he had virtually done in his role was to process complaints that involved Elected
Members.20 Mr Cain noted that the Local Government Act 1995 (WA) (Local Government
Act) did not cite behaviour management of Elected Members as a core function of a CEO, but
this was, according to Mr Cain, what had occurred.21
[24] Further to the processing of complaints, Mr Cain raised that for almost a decade he
had been subjected to a steady increase in inappropriate behaviour toward him.22 This
behaviour, which started off as the occasional derogatory remark, had evolved into a sustained
process of harassment and bullying.23 Examples provided included derisory conduct, false
15 Ibid Annexure SC-18.
16 Ibid Annexure SC-3.
17 Ibid Annexure SC-3.
18 Ibid [14].
19 Ibid Annexure SC-3.
20 Ibid Annexure SC-2.
21 Ibid Annexure SC-2.
22 Ibid Annexure SC-2.
23 Ibid Annexure SC-2.
[2020] FWC 1914
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allegations, excessive communication and a range of other hostilities.24 Mr Cain identified
that much of the behaviour had come from one individual.25
[25] Mayor Howlett gave evidence that Mr Cain’s personal assistant, Ms Spearing,
delivered the letter of 24 October to his office on 24 October 2019.26 The envelope was
marked confidential27 and Mayor Howlett confirmed that he did not show it to anyone else.28
Regarding the contents of the letter, Mayor Howlett stated that he did not understand that the
content of letter referred to any action he may have taken towards Mr Cain.29
[26] In the letter to Mayor Howlett of 24 October 2019, Mr Cain identified the one
individual referred to in the email dated 23 October 2019; as Councillor Smith. Mr Cain
stated in his letter that Councillor Smith had been elected in October 2009, and in October
2017 was also elected by the Council as its Deputy Mayor, which she had held until the
expiry of the term in October 2019.30 Mr Cain thereafter proceeded to list seven events over
the course of 2011- 2019, in which there had been incidents (related to alcohol consumption)
concerning Councillor Smith, which he had been left to deal with.
[27] The letter of 24 October 2019 then proceeded to detail examples of Councillor Smith’s
behaviour towards Mr Cain, it read:
• Email 14 November 2013 (attachment 5) criticising the conduct of the community
meeting that had kicked off the Cockburn Community response to the Local Government
Reform announcements.
• Email 12 April 2017 (attachment 6) that included remarks:
"You are sooooooo missing the point Stephen. How misinformed you are around
mental health and inclusion. That's frightening!
• Email 9 June 2017 (attachment 7) that included remarks to me:
"I have very grave concerns regarding the leadership being shown.
If it was not for the integrity and good values displayed by our Mayor I would really
struggle to work beneath such concerns."
• While I provided further guidance to Cr Smith on the background to the issue, her
response to me on 9 June 2017 (attachment 8) became more personal·stating:
"You are missing my point- very convenient of you.
I am not responding any further and like I said 'you have to sleep at night"'
• On 22 March 2016 (attachment 9) it became necessary to write to Cr Smith about her
conduct and the impact it was having on the Administration, especially the generation of
excessive email and interference with operational matters.
• On 10 May 2018, prior to consideration of a planning item (14.3) for the May
Ordinary Council Meeting; Cr Smith made public statements to all Elected Members and staff
24 Ibid Annexure SC-2.
25 Ibid Annexure SC-2.
26 Mayor Howlett Witness Statement [19].
27 Ibid [19].
28 Ibid [19].
29 Ibid [21].
30 First Cain Affidavit Annexure SC-4.
[2020] FWC 1914
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present that were highly critical of me. In this instance she had been cautioned about
engagement had with the developer (item proponent) and an Alternative Recommendation
made by her. Cr Smith's own actions on this matter were unlawful and subsequently resulted
in a Standards Panel complaint being lodged and upheld (complaint 60 of 2018.)
• On 30 May 2018 (attachment 10) a further letter of advice was issued about Elected
Member behaviour towards staff; the majority of the staff complaints related to Cr Smith's
behaviour.
• On 18 June 2018 (attachment 11) another letter was sent to Cr Smith complaining
about her conduct.
• On 3 August 2018 Cr Smith sent an email to the Executive group alleging staff
concerns stating:
"I would just like to add that over the last few months the mayor and I have also
received multiple anonymous concerns from multiple staff to [sic] frightened to give
feedback"
• On 6 August Mayor Howlett sent two further emails (attachment 12), the first at
3:25pm, the next at 3.57pm, which included a formal response to Cr Smith's allegation in
which he stated:
"I advised you that I have not received multiple anonymous concerns from multiple
staff ... "
• On 9 August 2018 (attachment 13) Cr Smith was asked to substantiate her remarks,
but refused to do so.
• On 9 February 2019 (attachment 14) sought permission to attend a training event,
including the following statement:
"Appreciate it's a long shot given my last name is not Terblanche."
• On 20 September 2019 (attachment 15) a complaint was sent to Cr Smith and Cr Eva
about their poor behaviour in front of guests and staff. When it was pointed out to Cr Smith
that she had initiated the incident she simply dismissed the comments.
• On 14 October 2019 (attachment 16) Cr Smith sent an email to the Executive and
copying the City's Communications Manager with the heading of 'Stalking'. That email
included imagery from my personal Facebook page with the direct inference in the email that I
had been stalking her. This mortified me and advice was provided that simply explained how
such connections could occur (see emails 14 October 2019).31
[28] The letter of 24 October 2019, set out that from 2010, Councillor Smith had engaged
in a steadily increasing level of hostility and inappropriateness directed towards Mr Cain.32
Mr Cain noted that in his role as CEO he had formally advised her, counselled and at times
cautioned her when necessary; all to no effect.33 Mr Cain expressed that many of the issues
that had been raised in his letter of 24 October 2019, were covered by the Elected Member
Code of Conduct (Code), however, adherence to the Code remained a voluntary undertaking
and notwithstanding breaches of the ‘Rules of Conduct’ had been lodged – such statute did
31 Ibid Annexure SC-4.
32 Ibid Annexure SC-4.
33 Ibid Annexure SC-4.
[2020] FWC 1914
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not provide general protection for himself from the retaliatory behaviour of Councillor
Smith.34
[29] In both the email dated 23 October 2019 and the letter of 24 October 2019, Mr Cain
outlined that his personal mental health and physical health had been significantly impacted –
necessitating medical care, pharmacological support and other assistance. In the email,
Mr Cain stated:
This situation has had a sustained and substantial impact on my mental and physical health. I
have constant headaches, am constantly fatigued, succumbed to a second instance of shingles
in the past two years and am now taking other medications to deal with the stressful
environment I have been placed in. I am exhausted. The staff have seen the direct impact it is
having on me and my Executive has urged I take time off; recognising that I am struggling to
fulfil my role under this burden. This morning my GP has also prescribed rest and other
support measures.35
[30] Mayor Howlett gave evidence that on 24 October 2019, he attended an informal
meeting of Elected Members, with the exception of one Councillor.36 The Executive Team
were in attendance, comprising of Mr Downing, Mr Green (Director of Governance and
Community Services), Mr Arndt, and Mr Sullivan (Director of Engineering & Works).37 The
topic of discussion was Mr Cain’s email dated 23 October 2019.38
[31] From the evidence of Mayor Howlett, it is evident that those at the meeting held a
view that immediate action was required to ensure Mr Cain’s health and well-being were
protected,39 an independent investigator should enquire into Mr Cain’s complaint,40 workers’
compensation forms should be made available to him and the Employee Assistance
Program,41 he should be informed that he did not need to concern himself with Council
business and needed to rest,42 and there should be a restriction put in place regarding emails,
otherwise he would continue to expose himself to the workload.43
[32] By letter dated 28 October 2019,44 Mayor Howlett acknowledged receipt of Mr Cain’s
medical certificate, which certified Mr Cain unfit for work for the period of 23 October 2019
to 8 November 2019, and Mr Cain’s allegations of behaviour which he believed constituted
bullying and/or harassment.45 Mayor Howlett went on to explain that an external consultant
would be engaged to investigate Mr Cain’s allegations, and that he would not be required to
attend work until the investigation was completed and Council had given due consideration to
34 Ibid Annexure SC-4.
35 Ibid Annexure SC-4.
36 Mayor Howlett Witness Statement [23].
37 Ibid [23].
38 Ibid [28].
39 Ibid [31].
40 Ibid [32].
41 Ibid [32].
42 Ibid [34].
43 Ibid [35].
44 First Cain Affidavit Annexure SC-2.
45 Ibid Annexure SC-2.
[2020] FWC 1914
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the investigative report.46 In the letter, it was explained that Mr Cain’s focus was to be on his
physical and mental health, and that to ensure the necessary separation from work issues
Council had requested that his IT system access (including email) be temporarily suspended
for the duration of his absence.47
[33] The letter of 28 October 2019, further informed Mr Cain about the City’s Employee
Assistance Program, provided a Workers’ Compensation Claim Form (in the event Mr Cain
elected to make a claim), and identified Mr Downing or the Manager of Human Resources as
a point of contact.48
[34] Mr Cain gave evidence that on 4 November 2019, without notice to him, the Council
held a SCM and made a resolution to the effect that he would be placed on ‘special paid
leave’ whilst an investigation took place.49 This was despite the fact, said Mr Cain, that he
was still on sick leave.50
[35] Mayor Howlett explained that as Mayor he can call SCMs.51 The procedure for doing
so is set out in the Local Government Act 1995 and the City’s Standing Orders.52 He called a
SCM for 4 November 2019, to enable the Council to consider and resolve to make decisions
in a formal Council Meeting on how to address and resolve Mr Cain’s bullying complaint.53
That part of the meeting was held behind closed doors, meaning the public were excluded,
and representatives of the law firm Jackson McDonald were present.54 At the SCM, Council
resolved to initiate an investigation in Mr Cain’s bullying complaint and to place Mr Cain on
special paid leave while the investigation was taking place (therefore precluding him from
work and work related functions).55 At hearing, it was explained that instead of Mr Cain
exhausting his personal leave, the Council saw fit to place him on special paid leave.
[36] According to Mr Cain, he initially sent correspondence to Mayor Howlett and
thereafter there was correspondence between his lawyers, Allion Partners, and Jackson
McDonald, who represented the City, about his objection to being unilaterally placed on
‘special paid leave’ as there was no basis under his employment contract to do so.56 Mr Cain
said he understood from the correspondence, he was being kept away from the workplace to
protect his safety and wellbeing pending an investigation into his bullying complaint.57 While
the City informed Mr Cain that reliance was placed on the Bullying Policy to take the action it
46 Ibid Annexure SC-2.
46 Ibid Annexure SC-2.
47 Ibid Annexure SC-2.
48 Ibid Annexure SC-2.
49 Ibid [26].
50 Ibid [26].
51 Mayor Howlett Witness Statement [35].
52 Ibid [35].
53 Ibid [41].
54 Ibid [41].
55 Ibid [43].
56 First Cain Affidavit [27].
57 Ibid [27].
[2020] FWC 1914
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had, Mr Cain said he disputed this (noting that notwithstanding his request, a full copy of the
Bullying Policy had not been provided).58
4 November Council resolution
[37] With regard to the 4 November Council resolution, Mr Cain stated Councillor Smith
was involved in the SCM – despite it being evident from his bullying complaint that she was
the subject of the allegations he had made.59 Further, Mr Downing, from what could be seen
of the minutes of the SCM, made the recommendation regarding the special paid leave.60 The
minutes of the SCM at point 10 ‘Council Matters’ note that the author was Mr Downing, and
the recommendation was to provide the CEO with special paid leave.61
Media coverage of the 4 November Council resolution
[38] Mr Cain gave evidence that his feelings of stress, embarrassment and humiliation were
heightened by media coverage after the 4 November Council resolution.62 Mr Cain observed
that he was informed of the 4 November Council resolution by letter of 6 November 2019 that
arrived at his home on 7 November 2019. However, Mr Cain stated on 5 November 2019, he
was informed by the CEO of the City of Belmont that there had been a segment on the
Channel 9 news about the reported outcomes of the SCM held on 4 November 2019.63
[39] Mr Cain provided further detail of media reports, enquiries by media outlets by phone,
and the presentation of the media to his house and that of his mother.64
City’s direction on 6 November 2019 and subsequent correspondence
[40] Mr Cain stated the letter of 6 November 2019 from Mayor Howlett informed him the
City had ‘resolved’ that he not attend work or work-related matters - including addressing
emails, or attending functions, events, conferences and related travel until ‘the matters’ were
resolved.65 Mr Cain said that in correspondence between his lawyers and Jackson McDonald,
he argued to no avail, it was not open to the City to make such resolution.66 However, the
letter of 6 November explained ‘…Council felt that it was obliged, under safety legislation to
ensure that you were not required to attend work or attend work related matters until the
matter had been investigated…. Consequently, I confirm that on 4 November 2019 the
Council resolved to provide you with special paid leave pending the outcomes of the
investigation…’.67
58 Ibid [29].
59 Ibid [30].
60 Ibid [31].
61 Ibid Annexure SC-5.
62 Ibid [40].
63 Ibid [40].
64 Ibid [40].
65 Ibid [37].
66 Ibid [37].
67 Ibid Annexure SC-6.
[2020] FWC 1914
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[41] On 15 November 2019, Mayor Howlett sent a letter to Mr Cain advising him of the
appointment of an investigator, and that the investigator wanted to meet with him.68 By email
dated 18 November 2019, Mr Cain responded to Mayor Howlett, noting he was happy to
assist the City with its investigation, and he had a number of questions about the conduct of
the investigation and its terms of reference.69
[42] By letter of 21 November 2019, Mayor Howlett confirmed receipt of Mr Cain’s
medical certificate certifying him unfit for the period 15 November 2019 to 8 December 2019.
Regarding the terms of reference for the investigation, Mayor Howlett responded these had
been set by the Council and the investigation would be conducted accordingly.70 Further, the
City was investigating Mr Cain’s concerns about the City not providing him with a safe
working environment.71 Mr Cain had previously raised the issue of the City reimbursing him
for reasonable legal costs regarding the investigation. Mayor Howlett referred Mr Cain to the
relevant policy on indemnifying employees for legal costs.72
[43] On 25 November 2019, Mr Cain emailed Mayor Howlett, having copied in
Mr Downing, and stated, among other matters:
Dear Logan
Further to the email I have sent this morning, I refer to that part of your letter dated
21 November 2019 concerning my legal fees and observe as follows:
1. As I have already suggested in correspondence, the investigation will not be effective
without access to a lot of material that is confidential and that I do not think will be able to
be accessed by the investigator, but which I have knowledge of. I need legal assistance in
the investigation to help protect both me and the City from any inadvertent disclosure by
me of that confidential information and in order that I can best assist the City with the
matters to be investigated.
2. Further, in my experience, the investigation is not the usual workplace variety given the
nature of my complaint, which concerns the conduct of elected members of the
collective group of persons that runs the City (the Council of the City) which, in turn,
has as its objective the provision of good government for the persons in its district. The
investigation is a proceeding that has been commissioned by the City through its legal
advisors, and the investigator is acting on instructions from those legal advisors, Jackson
McDonald.
…
5. The City has initiated the investigation, which will necessarily involve me. There can be
no suggestion that I acted improperly in making my complaint. To the contrary, I
consider that I was duty bound to do so given the nature of my complaint relates to the
Conduct of Elected Members.
6. Also, in light of the above matters, I consider that it would not be procedurally fair for me
to have to deal with investigation without legal representation.73 (bold my emphasis).
[44] Mayor Howlett gave evidence that, on 25 November 2019, he received an email from
Mr Cain that referred to the direction not to attend work and the employment restrictions
68 Mayor Howlett Witness Statement [49], Annexure LKH-4.
69 Ibid [49], Annexure LKH-5.
70 Ibid Annexure LKH-6.
71 Ibid Annexure LKH-6.
72 Ibid Annexure LKH-6.
73 Ibid Annexure LKH-7A.
[2020] FWC 1914
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(IT/email access) as set out in the letter of 28 October 2019. Those directions predated the
SCM on 4 November 2019.74 Mr Cain sought clarification how and under what authorisation
the ‘Council has requested’ the actions described in Mayor Howlett’s letter of 28 October
2019.75 The email further outlined that Mr Cain could not see any reason why he needed to
await the completion of the investigation before returning to work, and he was confused by
the reference to ‘special paid leave’ when he was currently on sick leave.76 Having referred to
the work activities he would be unable to complete if precluded from returning to work on
9 December 2019, Mr Cain concluded the email of 25 November 2019, stating:
…I consider that such action would be adverse to me in that -
1. the inference would be that I was suspended because of conduct on my part that made
it necessary for the City to ban me from the workplace;
2. such an inference would be damaging to my reputation;
3. at the same time, I would be prevented from enhancing my reputation by being able to
attend to these and other matters as CEO after 9 December 2019.
The apparent reason for the City and each of the Elected Members when they made the
resolution to take such adverse action against me would appear to be because of my
complaint. I consider that would not be a proper reason for the taking of the adverse
action by the City and the Elected Members.
[45] Mr Cain’s email dated 25 November 2019, continued at length to address:
a) the lack of notice of the SCM on 4 November 2019 (contrary to established City
protocols requiring advice of any pending matter before Council to be advised to
the ‘Proponent(s)/Submitters’);
b) he was not advised of the outcome of the SCM on 4 November 2019, until
6 November 2019, conduct which was inconsistent with the duty of good faith
owed to him by the City;
c) his correspondence to the City dated 23 October 2019 was marked ‘Private and
Legal in Confidence’ and yet details of the correspondence were referenced in the
SCM agenda (which is available to the public), therefore constituting, in Mr Cain’s
view, a breach of confidentiality;
d) extensive media coverage saw Mr Cain being advised of employment decisions by
the media prior to any advice of the City (breach of the City’s duty of good faith
owed to him);
e) Councillor Smith posted a link to the SCM agenda on her Facebook page citing
‘Special Council Meeting relating to the CEO’s allegations of an unsafe workplace
and unfit to attend work’ and ‘I look forward to any investigation triggered by the
CEOs unsafe workplace claims and wish him well in his mental health recovery’,
this, said Mr Cain, constituted an action inconsistent with Local Government
(Rules of Conduct) Regulations 2007;
f) reasons for being provided with the terms of reference;
g) restoration of full access to all of Mr Cain’s email to allow him to deal with the
investigation.77
74 Ibid Annexure LKH-7B.
75 Ibid Annexure LKH-7B.
76 Ibid Annexure LKH-7B.
77 Ibid Annexure LKH-7B.
[2020] FWC 1914
13
[46] Mayor Howlett responded to Mr Cain’s email dated 25 November 2019, by letter of
28 November 2019, explaining that in his email to the Elected Members dated 23 October
2019, Mr Cain had stated that the steady increase in inappropriate behaviour towards him…
had ‘evolved into a sustained process of harassment and bullying’.78 In addition, Mr Cain had
outlined the impact the behaviour and workplace environment had on him, and as a
consequence the Council had, at the SCM on 4 November 2019, resolved to:
a) initiate an investigation as per the Terms of Reference contained in the legal advice
attached under separate confidential cover, and consider the outcomes and advice
arising from the investigation at a further Meetings; and
b) provide the CEO with special paid leave whilst the investigation takes place, on the
basis that he is not to return to work or attend work related functions pending the
outcomes of the investigation being considered by the Council.79
[47] By email dated 25 November 2019, Councillor Smith asked Mr Downing: (a) for a
copy of Mr Cain’s contract extension; (b) to clarify whether Mr Cain was on sick leave or
special leave; and (c) for information on Mr Cain’s last medical check-up.80 On 26 November
2019, Mr Downing appears to have provided a copy of the contract extension letter, clarified
that Mr Cain was on special leave, and was unable to answer the last question asked.81 A
further email from Councillor Smith read:
So because 7 out of the 10 Elected Members voted to renew the contract even though it was
not up for renewal for another 12 months we now have a 5 year commitment to Mr Cain. I
also note the decision ignored the recommendation of the CEO Performance review
committee who agreed to look at the renewal at a later date. If for some reason we were
obliged to pay Mr Cain out what would the total amount be?82
Investigation of the bullying complaint
[48] Mr Cain stated that he understood that Jackson McDonald appointed Dr Sitlington to
investigate his bullying complaint having considered the correspondence between Allion
Partners and Jackson McDonald.83 Mr Cain said he met with Dr Sitlington on
5 December 2019. However, he considered he was unable to prepare as well as he would
have preferred because he had been denied access to workplace materials that would have
assisted, and he was denied a copy of the Terms of Reference for the investigation.84
[49] It appears that Dr Sitlington generated a document titled ‘Particulars of Complaint’
and one titled ‘Summary of Attachments’.85 Mr Cain expressed that Dr Sitlington’s
‘Particulars of Complaint’ is a summary of his bullying complaint but not a complete record
of what was discussed.86
78 Ibid Annexure LKH-8.
79 Ibid Annexure LKH-8.
80 First Cain Affidavit Annexure SC-22.
81 Ibid Annexure SC-23.
82 Ibid Annexure SC-23.
83 Ibid [42].
84 Ibid [45].
85 Ibid [44].
86 Ibid [47].
[2020] FWC 1914
14
[50] The evidence shows that Dr Sitlington met with Mr Downing on 7 January 202087 and
Mayor Howlett on 8 January 2020.88 Mayor Howlett gave evidence that during February
2020, Mr Downing informed him that Dr Sitlington had provided a report to Jackson
McDonald who were in the process of reviewing that same report and preparing written legal
advice on the Doctor’s findings and what actions the City could take in response.89
[51] Mr Downing gave evidence that the bullying investigation was completed,
Dr Sitlington prepared an initial report and a supplementary report,90 and those reports were
provided to him from Jackson McDonald on or about 3 March 2020. On 4 March 2020,
Mayor Howlett sent to Mr Downing a letter calling for a SCM on 11 March 2020.91 The
SCM occurred on the proposed date, and whilst most Councillors were in attendance,
Councillor Smith was not, due to her suspension issued by the State Administrative Tribunal
for two months from 3 February 2020 to 3 April 2020.92
[52] Regarding the instructions provided on behalf of the City to its lawyers, Mr Downing
stated he had, in all meetings with the City’s legal advisors, included at least another
representative of the City – predominately a Mr Don Green, and in his absence, Mr Arndt.93
Mr Downing explained that he wanted other members of the Executive Team involved in
instructing the City’s legal advisors and considering their advice to demonstrate it was not
only him as the Acting CEO engaging lawyers in this matter, but him on behalf of the City
with the support of the key members of the Executive Team.94
Attempt to return to work
[53] By email dated 28 November 2019, Mr Cain informed Mayor Howlett there was no
proper basis for the Council to place him on special paid leave under his contract – and again
referred to such conduct being improper and adverse action against him because of his
complaint.95 In short, Mr Cain’s grievances included among others:
a) there was no basis for Mayor Howlett to purport to enforce a Council resolution by
directing Mr Cain to adhere to it; and
b) there was no proper basis for the Council to make the resolution in the first place –
there being no concept of special paid leave under Mr Cain’s employment contract,
therefore a direction to stay away from work and not attend work related matters
pending completion of the investigation would be improper as that would constitute
adverse action because of his complaint.
87 Statement of Stuart Nigel Downing (Downing Statement) [36].
88 Mayor Howlett Witness Statement [66].
89 Ibid [79].
90 Downing Statement [38].
91 Ibid [39].
92 Ibid [45].
93 Ibid [49].
94 Ibid [50].
95 Mayor Howlett Witness Statement Annexure LKH-9.
[2020] FWC 1914
15
[54] Mr Cain noted in his email of 28 November 2019, that as he had not been suspended
from duty, he would be attending for work on Monday, 2 December 2019, at 9.00am, to
perform his usual duties.96
[55] Mr Cain gave evidence that the City’s Executive (including Mr Downing), informed
him, in substance, they felt bound to follow the Council’s direction and that, therefore, they
and his staff would be unavailable to work with him if he returned.97 Mr Cain said that he did
not return to work.98
The outcome of the bullying complaint
[56] Mr Cain said that he understood from a letter of 12 March 2020 authored by Jackson
McDonald to Allion Partners that Dr Sitlington completed a report on her investigation at a
time that was unknown to Mr Cain.99 The report was said to have been presented to the
Council at a SCM on 11 March 2020.100 On 9 March 2020, Mr Cain discovered on the City’s
website that a SCM was to be held 11 March 2020. Having found that a SCM was to be held,
he made a request, via the City’s on-line process on 9 March 2020 to make a deputation to
that meeting.101 The request was declined by Mayor Howlett and communicated to Allion
Partners by Jackson McDonald.102
[57] The letter of 12 March 2020, confirmed that Dr Sitlington’s investigation report was
presented to Council for consideration at the SCM on 11 March 2020.103 The letter set out
that the Council had passed the following resolutions at the SCM:
That Council:
1) receive the report;
2) adopt and implement the following initiatives as recommended by Jackson McDonald:
1. Arrange training for the elected members (to be conducted upon Cr Lee-Anne
Smith's return from suspension) focussed on building an appropriate employee /
elected member relationship framework and training on the issue of workplace
bullying (to be undertaken by elected members and the executive of the City);
2. Note any recorded past allegations of inappropriate conduct by Cr Lee-Anne
Smith, to determine whether anything needs to be reported to the Standards Panel, is
to be examined by the Complaints Officer;
3. Review the Elected Member Code of Conduct and amend any content to
clarify acceptable levels of conduct when dealing with employees of the City, noting
that this is an interim measure pending the introduction of a mandatory Code of
Conduct to be included in the Local Government Act 1995;
96 Ibid Annexure LKH-9.
97 First Cain Affidavit [38].
98 Ibid [39].
99 Ibid [48].
100 Ibid [48].
101 Ibid [50].
102 Ibid [50].
103 Ibid Annexure SC-10.
[2020] FWC 1914
16
4. Review the Elected Member Communications Policy to clarify acceptable
levels of conduct between elected members and employees when communicating on
matters related to the functions of the City of Cockburn;
5. Appoint the Director, Governance and Community Services to be its
Complaints Officer in accordance with Section 5.120(1) of the Local Government Act
1995 (LG Act);
3) once the City has initiated steps to implement these recommendations, the Mayor is to provide
written notice to the CEO of the measures that the City is implementing to meet its obligations
under the Occupational Safety and Health Act 1984, and any other statutory requirements;
4) update the Crime and Corruption Commission (CCC) and Department of Local Government,
Sport and Cultural Industries (DLGSCI) that:
1. The Sitlington Investigation has concluded;
2. The City is considering what measures will be implemented to meet its
obligations under the OSH Act and other statutory requirements;
5) provide a copy of the reports and advices to the CCC and DLGSCI on the basis that legal
privilege is retained by the City by ensuring that these agencies use relevant powers to seek
the reports and advices.
6) provide direct Human Resources and workplace support to the CEO, on request;
7) provide written clarification on the responsibilities of the CEO under the Local Government
Act in managing the behaviour of Elected Members;
8) request the CEO to initiate a review of the role and responsibilities of the CEO position to
determine whether the job can be redesigned, or workload distributed and provide a report of
the review to the Chief Executive Officer Performance & Senior Staff Key Projects Appraisal
Committee Meeting in July 2020;
9) conduct a mentoring exercise between the CEO and all elected members within two (2)
months to ensure an understanding of the roles of all parties;
10) conduct a mentoring exercise between the CEO and the Mayor to ensure the liaison role
between these two positions (as specified in Sections 2.8(1)(f) - Role of the Mayor) and 5.41
(e) of the LG Act) are clearly identified and understood;
11) review the functionality of briefing sessions to ensure that protocols and guidelines are clearly
understood and implemented.104
Allegations of misconduct against Mr Cain
[58] Mr Downing gave evidence that around 20 November 2019, the City became aware of
potential allegations of misconduct against Mr Cain.105 However, before this date some
enquiries had ensued.
[59] According to Mr Downing, on 11 November 2019, the online edition of the West
Australian published an article regarding Mr Cain and included was a link to pictures of two
pages (Newspaper Document).106 The article was subsequently reposted on the Facebook
pag of Councillor Smith.107 Mr Downing stated that around 11 November 2020, he was asked
by Elected Members if he knew who had leaked the statement of Mr Cain (Newspaper
Document).108
104 Ibid Annexure SC-10.
105 Downing Statement [23].
106 Ibid [51].
107 Ibid [52].
108 Ibid [53].
[2020] FWC 1914
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[60] On or around 20 November 2020, Mr Downing, with others from the City, had a
conference call with Jackson McDonald and it was noted the document in the link in the
West Australian was not the same as the complaint sent by Mr Cain to Elected Members on
23 October 2019 and copied to the Directors of the City.109 Mr Downing asked a
Mr McKinley to compare the two versions – Mr Cain’s bullying complaint dated 23 October
2019 with the Newspaper Document. Mr McKinley surmised that the Newspaper Document
appeared to be a draft of the formal complaint emailed on 23 October 2019.110 In following
this up, Mr Downing thereafter instructed Mr Fellows, the City’s Manager of Information
Services, to check the City’s systems to see whether it was only the ‘Council Version’ of the
Mr Cain’s complaint that had been sent to Elected Members as opposed to the Newspaper
Document.111
[61] Having conducted a search of Mr Cain’s emails, it was identified that on
23 October 2019, Mr Cain had sent an email to persons working at other local government
locations such as Swan, Kalamunda, Rockingham and Gosnells informing them of his leave
of absence due to ‘[S]ustained harassment and personal attacks, in fighting within the EM
group along with constantly dealing with the Standards Panel complaints’.112
[62] According to the evidence given at hearing, Mr Downing had received feedback that
an external consultant reported Mr Cain had been at a work-related event whilst on special
paid leave.113
[63] Mr Downing gave evidence that he and Mr Green sought advice from Jackson
McDonald about these matters (the three above matters) and advised Elected Members of
them. Mr Downing said that he did so, because as Acting CEO, he believed he was required
to notify Council of potential allegations of misconduct that had come to his attention.
[64] In response, Mayor Howlett called for a SCM on 4 December 2019. At the SCM, the
Council resolved to put three allegations of misconduct to Mr Cain, to suspend him on pay
and to engage an independent investigator to investigate the misconduct allegations (the
December Resolution).114
[65] The evidence of Mr Downing aligns with that of Mr Cain, who said that he received a
letter of 6 December 2019 from Mr Downing informing him of three allegations of
misconduct against him.115
[66] A further letter of 12 December 2019, was provided to Mr Cain, setting out the
particulars of the allegations of misconduct.116 The first allegation concerned the email dated
23 October 2019, a version of which Mr Cain was alleged to have provided to another person,
109 Ibid [53].
110 Ibid [55].
111 Ibid [56].
112 Ibid SND-18.
113 Transcript PN1299.
114 Downing Statement [24]; First Cain Affidavit [58], Annexure SC-11.
115 First Cain Affidavit [58].
116 Ibid Annexure SC-12.
[2020] FWC 1914
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including but not limited to a person involved in the media.117 The letter of 12 December
2019, set out that a newspaper article, in the online edition of the West Australian newspaper
published a story titled ‘Cockburn CEO Stephen Cain’s bombshell email to councillors
reveals cause of stress leave’, included in the story were pictures of two pages (Newspaper
Document).118
[67] While the letter of 12 December 2019 acknowledged that the Newspaper Document
was not the email of 23 October 2019, several observations were made that included that the
Newspaper Document appeared to be a revised version of the email dated 23 October 2019.119
A further observation was that the Newspaper Document had a handwritten annotation
highlighting a spelling mistake regarding the word ‘though’ – the email dated 23 October
2019 read ‘through’. It was, in addition noted, the Newspaper Document had the name
Stephen Cain in the top left-hand corner of the document. The letter continued, ‘when a
person prints an email or draft email displayed in his/her email viewer (e.g. Outlook), his/her
name is printed in the top left-hand corner of the email.120
[68] The second allegation set out that Mr Cain had sent an email titled ‘Leave of Absence
– In Confidence’ dated 23 October 2019 to other local government CEOs.121 The third, that
Mr Cain had attended a NGAA National Congress Conference on or about 10 November
2019 whilst on special paid leave and that he was instructed not to attend work or any work-
related matters at this time.122
[69] Mr Cain was informed via the letter of 12 December 2019, a Mr Brendan Cusack of
Cygnet Workplace Investigations would investigate the allegations. Mr Cusack had been
engaged by Jackson McDonald.123
[70] For various reasons, the workplace investigation into Mr Cain’s misconduct appears to
have been on foot for a couple of months. During December 2019 and January 2020, two
scheduled interviews were arranged for Mr Cain to meet with Mr Cusack. With regard to the
interview scheduled for 20 December 2019, Allion Partners informed Jackson McDonald on
the morning of the interview that Mr Cain would not be attending.124 They asked for the
meeting to be rescheduled the week commencing 6 January 2020 as the Allion Partners office
was closing down for Christmas.125 While a second interview was scheduled for early
January 2020, Mr Cain did not attend, citing that the direction to attend the interview was not
a lawful and reasonable direction.126
[71] By letter of 17 January 2020, Allion Partners informed Mr Cusack that ‘[W]e did not
consider that it was necessary for us to do anything more than that because, as noted in our
letter, on behalf of our client, we have corresponded with Jackson McDonald, the lawyers for
117 Ibid Annexure SC-12.
118 Ibid Annexure SC-12.
119 Ibid Annexure SC-12.
120 Ibid Annexure SC-12.
121 Ibid Annexure SC-12.
122 Ibid Annexure SC-12.
123 Ibid Annexure SC-12; Downing Statement [28].
124 Downing Statement SND-19.
125 Ibid SND-19.
126 Ibid SND-19.
[2020] FWC 1914
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the City of Cockburn, in relation to this matter. Included in that correspondence is our
client’s position on the issues pertaining to the allegations that have been levelled against him
by the City’. 127 The letter referred to in the correspondence to Mr Cusack, appears to be the
letter authored by Allion Partners of 12 December 2019, in which responses were provided to
the three allegations.128
Media coverage of the allegations of Mr Cain’s suspension
[72] On 12 December 2019, Mr Cain said that he read an article in ‘The West” with the
headline ‘The Wash-Up on the Suspended CEO’. The article was sub-headed ‘Council fat cat
on $380k “not back at work until 2020”’.129 Mr Cain stated that the article disclosed
information that had been discussed in at the SCM on 4 December 2019.130
Contacting Elected Members and a draft workplace bullying application
[73] Mr Downing gave evidence that Mr Cain was provided with a direction from Council
that he not contact any of the Elected Members during the workplace investigation.131
However, Mr Downing stated he was aware that during the investigation, Mr Cain’s legal
representatives made contact with Elected Members on several occasions.132 On 8 January
2020, Allion Partners sent copies of a draft bullying application that was proposed to be filed
in the Fair Work Commission, to Councillors Kirkwood, Terblanche, Eva, Separovich, Stone,
Corke and Widdenbar and thereafter on 10 January to Mayor Howlett and Councillor
Allen.133
[74] Mr Downing stated Mr Cain also instructed Allion Partners to write to him on
10 January 2020 attaching a draft bullying application.134
[75] The draft bullying application received by Mr Downing described, at Attachment B,
the behaviour that Mr Cain considered constituted bullying – levelled at Councillor Smith,
Councillor Allen, Mayor Howlett and Mr Downing:
1. Harassment of the applicant by the respondents including by, without limitation,
failure by the respondent, Mr Stuart Downing, to abide by the City’s Council
Meeting policy in not providing the applicant with advice of the conduct of a
Special Council Meeting on 4 November 2019 that was specifically in relation to
the applicant; and failure to notify the applicant of the outcomes of that Special
Council Meeting until after it had been extensively covered by the media.
2. Derogatory and defamatory comments by the respondents Councillor Smith and
Councillor Allen.
127 Ibid SND-21.
128 Ibid SND- 22.
129 First Cain Affidavit [65].
130 Ibid [65].
131 Downing Statement [28].
132 Ibid [29](c), (d) and (e); Annexure SND-10, SND-11 and SND-12.
133 Ibid [29](a) and (b).
134 Ibid [30].
[2020] FWC 1914
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3. Breaches by the respondents Councillor Smith and Councillor Allen of the City of
Cockburn’s Elected Members Code of Conduct and the Elected Members
Communication Policy.
4. Failure by Mayor Howlett to liaise as required with the applicant concerning
breaches by Councillors of the City of Cockburn’s Elected Members Code of
Conduct.
5. Denial of procedural fairness by the City of Cockburn by failing to ensure that the
respondents Councillors Smith and Allen refrain from discussing and considering
and/or determining the applicant’s bullying complaint.
6. By reason of the matters set out in the preceding paragraph, failure by the City of
Cockburn to comply with its Bullying Policy.
7. Unlawful and/or unreasonable direction by the City of Cockburn to the applicant
to take purported ‘special paid leave’ even though the applicant was then on
authorised sick leave.
8. Imposition of a ban by the City of Cockburn on the applicant from attending work-
related functions and events because of the unlawful and/or unreasonable direction
by the City of Cockburn to the applicant to take purported ‘special paid leave’.
9. Denial by the City of Cockburn of the applicant’s access to workplace email on the
basis f the unlawful and/or unreasonable direction by the City of Cockburn to the
applicant to take purported ‘special paid leave’.
10. Denial by the City of the applicant’s access to the workplace on the basis of the
unlawful and/or unreasonable direction by the City of Cockburn to the applicant to
take ‘special paid leave’.
11. By reason of one or more of the matters set out in paragraph 7,8,9 and 10 above,
breaches by the City of Cockburn of the contract of employment between it and
the applicant.
12. Denial of procedural fairness by the City of Cockburn in denying the applicant
access to documentation necessary to allow his proper participation in the
investigation into his bullying complaint.
13. Allegations of misconduct made by the City of Cockburn against the applicant
because he made the bullying complaint.
14. Baseless allegations of misconduct made against the applicant.
15. Substitution of fresh allegation of misconduct against the applicant without proper
authorisation of such by the Council of the City of Cockburn.
16. Knowing involvement of the respondent Stuart Downing with the actions
complained of by the City of Cockburn.
17. Failure by Councillors Smith and Allen to refrain from discussing and considering
and/or determining the applicant’s bullying complaint and the allegation of
misconduct levelled against the applicant.
18. Failure by the City of Cockburn to engage in mediation as required by cl.15.1 of
the contract of employment made between it and the applicant.135
[76] Covering letters to the draft workplace bullying applications directed to
Councillors Allen and Smith, Mayor Howlett and Mr Downing set out that they were to let
Allion Partners know by close of business on 15 January 2020, whether they wished for
Allion Partners to personally serve them with the final application document. Evidence given
by the four aforementioned persons, was that they did not receive a final application
document until such time as an application was filed with this Commission on 6 April 2020.
135 Ibid Annexure SND-9.
[2020] FWC 1914
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Pending SCM in April 2020
[77] Mr Cain gave evidence that in a telephone conversation on 7 April 2020 with Ms Julia
Klobas, a former employee of the City who held the position of Personal Assistant to Mr
Cain, he was informed that she had been told by Councillor Smith on 6 April 2020 that
another SCM was being called ‘for next week’. Mr Cain said he had not received any notice
from the City and was otherwise unaware of any such proposed SCM.136
Legislative framework
[78] The Commission is established by the Act and derives its powers from the same. It is
not a Court of record. Its functions are set out in s.577 and the matters it is required to take
into account in performing its functions are prescribed in s.578.
[79] In Re George137 the jurisdiction of the Commission was further examined. The
relevant paragraphs at [30] –[32] are extracted below:
[30] I would also accept that the Commission might need to form some views about the
apparent legal validity of various decisions and actions in order to determine its jurisdiction to
deal with matters. For example, assuming the Commission otherwise had jurisdiction, this
could include forming a view about whether the conduct of the parties in light of the purported
resolutions was unreasonable so as to potentially form part of findings relevant to s.789FD of
the FW Act – whether there has been bullying conduct. In forming those views, even on these
and other legal questions, the Commission is not exercising judicial power.
[31] For this and other purposes, the Commission may also have regard to legislation made by
State Parliaments, in this case South Australia, and other instruments, and determine relevant
legal and factual issues provided they properly arise within a jurisdiction established by the
FW Act.
[32] However, even when the Commission needs to form a view on a legal question in order
to find or exercise its jurisdiction in matters of this particular nature, those views do not of
themselves actually declare the legal rights more generally. For example, the Commission
could not conclusively determine for purposes beyond its jurisdiction whether the SGM and
SEM, were at law validly convened or whether the apparent resolutions were at law validly
passed and complied with the various requirements of the APY Act. Ultimately, only a Court
of competent jurisdiction (a Court of record) could make a binding declaration on those
matters.
[80] Part 6-4B of the Act sets out the provisions which are in part, relevant to the
application. Included is s.789FC, which prescribes who may make an application for an order
to stop bullying:
789FC Application for an FWC order to stop bullying
(1) A worker who reasonably believes that he or she has been bullied at work may apply to the
FWC for an order under section 789FF.
136 First Cain Affidavit Annexure SC-14.
137 [2017] FWC 4349.
[2020] FWC 1914
22
(2) For the purposes of this Part, worker has the same meaning as in the Work Health and
Safety Act 2011, but does not include a member of the Defence Force.
Note: Broadly, for the purposes of the Work Health and Safety Act 2011, a worker is an
individual who performs work in any capacity, including as an employee, a contractor, a
subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a
volunteer.
(3) The application must be accompanied by any fee prescribed by the regulations.
(4) The regulations may prescribe:
(a) a fee for making an application to the FWC under this section; and
(b) a method for indexing the fee; and
(c) the circumstances in which all or part of the fee may be waived or refunded.
[81] The Act provides some clarification as to when one considers a worker has been
‘bullied at work’:
789FD When is a worker bullied at work?
(1) A worker is bullied at work if:
(a) while the worker is at work in a constitutionally-covered business:
(i) an individual; or
(ii) a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of which the
worker is a member; and
(b) that behaviour creates a risk to health and safety.
(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out
in a reasonable manner.
(3) If a person conducts a business or undertaking (within the meaning of the Work Health and
Safety Act 2011) and either:
(a) the person is:
(i) a constitutional corporation; or
(ii) the Commonwealth; or
(iii) a Commonwealth authority; or
(iv) a body corporate incorporated in a Territory; or
(b) the business or undertaking is conducted principally in a Territory or
Commonwealth place;
then the business or undertaking is a constitutionally-covered business.
[82] There is of course a necessity for a relevant future risk concerning the bullying
behaviour, which is addressed in the prerequisites that exist for the Commission to make an
order, established by s.789FF:
789FF FWC may make orders to stop bullying
(1) If:
[2020] FWC 1914
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(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.
CONSIDERATION
Jurisdiction - ‘constitutionally covered business’
[83] It is evident that Part 6-4B is enlivened in circumstances where the worker is at work
in a ‘constitutionally-covered business’ Before turning to consider the term ‘at work’, I note
that it was uncontentious that Mr Cain is a ‘worker’ who works in a ‘constitutionally covered
business’ and is able to make an anti-bullying application under Part 6-4B of the Act.
However, given the employer is the City of Cockburn, and for completeness, the point
regarding a ‘constitutionally covered business’ is considered further.
[84] The workplace in this matter is not located in a Territory and there is no suggestion
that it is conducted by the Commonwealth or a Commonwealth authority. Assuming, for
present purposes, that the workplace is a business or undertaking within the meaning of the
Work Health and Safety Act 2011 (Cth), in order to be a constitutionally-covered business and
fall within the scope of s.789FD, it must be conducted by a constitutional corporation.
[85] The term ‘constitutional corporation’ is defined in s.12 of the Act in the following
terms: ‘constitutional corporation means a corporation to which paragraph 51(xx) of the
Constitution applies’. The Australian Constitution refers to ‘constitutional corporations’ as
being: ‘[F]oreign corporations, and trading or financial corporations formed within the limits
of the Commonwealth’. Of these types of corporations, only the trading corporation is
potentially relevant.
[2020] FWC 1914
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[86] The Full Bench in Gregory James Thurling v Glossodia Community Information and
Neighborhood Centre Inc. T/A Glossodia Community Centre138 provided a comprehensive
overview of the law on whether a corporation is a trading corporation, starting with the
extraordinarily helpful summary provided by Steytler P in the Western Australian Court of
Appeal decision in Aboriginal Legal Service (WA) Inc v Lawrence (No 2).139
[87] The principles outlined in those abovementioned authorities have been adopted and
applied when arriving at the conclusion that the City is a constitutional corporation. The
evidence relied upon to draw such conclusion included the City’s activities of leasing land
and commercial premises, an agreement on royalties from a small power station, a marina
(that charges commercial fees), and a commercial landfill that included a re-cycled goods
shop.140 Mr Cain’s evidence was that the operating income was purported to be $157 million
for the period 2019/2020 as stated in the City’s Annual Business Plan for 2019/2020, of
which fees and charges are budgeted to be $29.36 million (about 18.7% of income).141
The orders sought
[88] Mr Cain first articulated his bullying complaint in his email to Elected Members on
23 October 2019 and his letter to Mayor Howlett of 24 October 2019. The correspondence is
detailed and specific. The 24 October 2019 letter included numerous attachments.
[89] Neither email nor letter suggested that Mr Cain had any concerns about his treatment
by Mr Downing, Mayor Howlett or Councillor Allen at the time he sent those letters.
However, in his application, Mr Cain now contends that Mayor Howlett’s failure to ‘manage’
the Elected Members was an ongoing historical issue and that Councillor Allen had made
inappropriate remarks dating back to 2010.
[90] With respect to Mr Downing, Mr Cain states that it can be inferred that as the Acting
CEO at all times material to the application, Mr Downing was the person who had taken
action against Mr Cain purportedly in the name of the City. The contention thereafter being,
Mr Downing’s behaviour could not be characterised as reasonable management action.
[91] One of the prevailing issues that Mr Cain appeared to have with Mayor Howlett,
Councillor Allen and Councillor Smith, the triumvirate of Elected Members, was their
continued participation in the meetings and affairs of the Council in circumstances where they
had a conflict of interest – either actual or perceived, because of the bullying complaint
levelled against them. Clearly, this is a tongue in cheek synopsis and an oversimplification of
the multitude of behaviours complained of, which are detailed at paragraphs [150] – [212] of
this decision.
[92] In short, Mr Cain contends he has been bullied at work and there is a risk he will
continue to be bullied at work by the named respondents. Mr Cain sought interim orders, but
if interim orders were unavailable, he also sought final orders.
138 [2019] FWCFB 3740.
139 [2008] WASCA 254.
140 First Cain Affidavit [11].
141 Ibid [11].
[2020] FWC 1914
25
Interim orders
[93] Mr Cain applied for interim orders claiming that, unless such orders were made, the
named Respondents in the matter would continue to be involved in, and thereby be able to
promote, the taking of disciplinary action against him by the Council, including the
termination of his employment, which would render a nullity the relief sought by him.
[94] Some four and a half months after Mr Cain made his bullying complaint, the Council
determined certain outcomes from an investigation into that matter by Dr Sitlington (see
paragraph [56] of this decision). It was Mr Cain’s view that such outcomes did not
appropriately deal with the risk that he will continue to be bullied at work by each of the
named Respondents.
[95] At the time of the hearing, the Council had yet to determine the outcome of the
misconduct investigation. However, a meeting of the Council was scheduled for 16 April
2020 for this purpose. Mr Cain observed that the named Respondents had variously been
involved in determinations by the Council of matters concerning him since he made his
bullying complaint, including the allegations of misconduct that were subsequently levelled
against him. Mr Cain submitted that the four Respondents should not be so involved in the
Council meeting scheduled for 16 April 2020.
[96] In circumstances where the Commission did not accept that it had the power to make
interim orders unless first satisfied that Mr Cain has been bullied at work and there is a risk
that he will continue to be bullied at work, Mr Cain submitted the Commission could be
satisfied of these matters - on the findings of fact which were open to be made, and which
should be made.
[97] With respect to the Commission’s power to make the interim orders sought, Mr Cain
submitted that the Commission had jurisdiction and power under ss.589(2), 595(3) and 789FF
of the Act. Referring to the decision of the Full Bench in South Eastern Sydney Local Health
District v Lal142 (South Eastern), Mr Cain submitted that in that decision there was no
disagreement between the parties that the test for interim orders was whether there was a
serious question to be tried and the balance of convenience favoured the grant of the orders.143
[98] Regarding the source of such power, it was said that s.589(2) empowered the
Commission to make an interim order in relation to a matter before it. Mr Cain contended, in
this case, the ‘matter’ was the controversy of whether he had been bullied at work and
whether there is a risk he will continue to be bullied at work, in which case the Commission
may make any order that it considers appropriate.
[99] A proper construction of s.589(2) of the Act, submitted Mr Cain, did not require that
any part of the matter be determined by the Commission before its power is enlivened to
make an interim order. Rather, s.589(2) is enlivened once there is a matter before the
Commission. If there is such a matter, the Commission can make an interim order in relation
to that matter.
142 [2019] FWCFB 1475.
143 [2019] FWCFB 1475, [19].
[2020] FWC 1914
26
[100] It was observed that s.589(2) appears in the context of Subdivision B of Part 5-1 of the
Act concerning the conduct of matters before the Commission. The Commission’s discretion
to make an interim order pursuant to s.589(2) is not limited to a consideration of any
particular matters. Section 577(a) provides that the power must be exercised in a manner that
is fair and just. Section 789FE requires the Commission to start dealing with an application
made under s.789FC within 14 days, which has been done.
[101] On that basis, advanced Mr Cain, properly construed there is no requirement under the
Act that the Commission be satisfied that Mr Cain be bullied at work and that there is a risk
that he will continue to be bullied at work before it can exercise its power to make interim
orders under s.589(2).
[102] In the decision of Lynette Bayly144 (Bayly), Ms Bayly applied for an interim order
effectively preventing the respondents from continuing with a workplace investigation into
her conduct, and from taking disciplinary action against her pending the determination of the
application made under s.789FC. The interim order was sought under s.589(2). The
respondent argued, in part, that the Commission had been asked to prospectively injunct the
employer from possibly dismissing Ms Bayly. That is, the Commission was being asked to
essentially use the anti-bullying jurisdiction to step in and prevent a possible adverse action,
without consideration as to whether the dismissal was justified.
[103] Having considered ss.789FC, 789FD, 789FF, and the Fair Work Amendment Bill 2013
Revised Explanatory Memorandum, the observations of the Commissioner can be reduced to
the following:
a) there are two prerequisites to the making of substantive orders in matters of this kind.
Firstly, a finding that the worker has been bullied at work by an individual or a group
of individuals; and secondly, that there is a risk that the applicant worker will continue
to be bullied at work by the individual or group concerned;145
b) where there is no risk that the applicant worker will continue to be bullied at work by
the individual or group concerned, there is no prospect that the s.789FC application
can succeed;146
c) any orders must be directed towards the prevention of relevant future unreasonable
conduct and be informed by, but not necessarily limited to, the prior unreasonable
conduct as found. However, any orders must deal with the actual future risk, based
upon appropriate findings, and having regard to the considerations established by
s.789FF(2) of the Act.147
[104] Before considering the applicable legal principles regarding interim orders under
s.589(2), the Commissioner in Bayly noted that whether the Commission was empowered to
make an interim order in connection with a s.789FC application was not contentious and
therefore proceeded on that basis.148
144 [2017] FWC 1886
145 Ibid [25].
146 Ibid [26].
147 Ibid [26].
148 Ibid [26].
[2020] FWC 1914
27
[105] The Commissioner adopted the principles set out in Quinn v Overland (Quinn) as
cited in the decision of Australian Manufacturing Workers’ Union v WW Wedderburn Pty Ltd
(Wedderburn).149 In Quinn, Bromberg J explained that an application for interlocutory relief
required the consideration to address two main inquiries. The first, whether the applicant has
made out a prima facie case in the sense that if the evidence remains as it is, there is a
probability that at the trial of the action the applicant will be entitled to relief.150 The second,
whether the inconvenience or injury which the applicant would be likely to suffer if an
injunction were refused outweighs or is outweighed by the injury which the respondent would
suffer if an injunction were granted.151 When considering whether there was a prima facie
case and the balance of convenience, the Commissioner said regard was to be had to the
substantive application , the jurisdictional context of the application, and the circumstances of
the parties.152
[106] The Commissioner in Bayly observed that the approach taken in Wedderburn was on
all fours with that adopted by the Deputy President in Worker A, Worker B, Worker C,
Worker D and Worker E v Automotive, Food, Metals, Engineering, Printing and Kindred
Industries Union known as the Australian Manufacturing Workers' Union; Communications,
Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of
Australia and others listed in Schedule A,153 a decision which similarly involved issuing
interim orders in a s.789FC anti-bullying application.
[107] Counsel for Mr Cain correctly acknowledged that, in the Full Bench decision of South
Eastern, the question of whether the conditions in s.789FF(1)(b) required satisfaction prior to
the making of an interim order did not arise for consideration in the appeal.154 The appellant
had accepted in its appeal that the appropriate test to be applied was whether the application
gave rise to a serious question to be tried and the balance of convenience.
[108] However, in the recent decision Leanne Mayson v Myland Health Pty Ltd and others
(Mayson)155 the Deputy President rejected a contention that s.589(2) was a discrete source of
power that enabled the making of an interim anti-bullying order, and that the requirements of
s.789FF need not be met. He effectively conceptualised the argument before him as a
question as to whether s.589(2) enabled the Commission to issue an administrative ‘interim’
injunction in relation to any matter that might be before it, despite what the substantive
provisions in question might say about the Commission’s jurisdiction.
[109] Acknowledging that there had been a number of matters in which applications seeking
interim anti-bullying orders in the nature of an administrative injunction have been successful,
on the basis that the applicant has established a serious question to be tried, together with a
favourable balance of convenience (see the aforementioned decisions), the Deputy President
observed that it did not appear from those cases that there was any argument about the
149 [2016] FWC 2260.
150 Ibid [5].
151 Quinn v Overland as cited in Australian Manufacturing Workers’ Union v WW Wedderburn Pty Ltd [2016] FWC 2260,
[5].
152 Lynette Bayly [2017] FWC 1886, [34].
153 [2016] FWC 5848.
154 [2019] FWCFB 1475, [19].
155 [2020] FWC 1404.
[2020] FWC 1914
28
jurisdictional question. The parties proceeded on a common assumption about the
Commission’s power under s 589(2) in the context of an anti-bullying application.
[110] The salient passages are found at the commencement of the consideration in Mayson,
they read:
[17] Section 589(2) states that the Commission ‘may make an interim decision in relation to a
matter before it.’ It is not an independent source of power to issue interim orders, whether in
the nature of interlocutory administrative injunctions or any other temporary decision. Absent
a particular ‘matter before it’, the Commission has no power to do anything at all under
s 589(2). To the extent that it might be contended that s 589(2) can be used in respect of any
‘dispute’ that might be referred to the Commission, s 595 makes clear that the Commission
may deal with a dispute ‘only if (it) is expressly authorised to do so under or in accordance
with another provision of this Act.’ Section 589(2) is not such a provision.
[18] The ‘matter’ now before the Commission, for the purpose of s 589(2), is an application
made under s 789FC. That application alleges that a worker has been bullied at work. It seeks
an order under s 789FF to prevent a worker from being bullied by an individual or group. Any
order I make in relation to this application will be an order under s 789FF. The relevant
requirements of that section must be satisfied.156
[111] Having had the opportunity to hear from Counsel for Mr Cain and Counsel for
Mr Downing and the City, on whether the Commission had jurisdiction to make interim
orders in this matter as requested, I decided it did not, and in doing so I have followed the
reasoning of the Deputy President in Mayson.
[112] As was the case in Mayson and for the reasons explained therein, I am not persuaded
that s.589(2) is a discrete source of power that enables the making of an interim anti-bullying
order, and that the requirements of s.789FF of the Act need not be met.
[113] Section 789FC of the Act provides that a worker who reasonably believes that he or
she has been bullied at work may apply to the Commission for an order under section 789FF.
I note in this respect, I was satisfied that Mr Cain held such reasonable belief – as will be
traversed later.
[114] Section 789FD sets out that which is meant by the phrase ‘bullied at work’. That a
person who has made an application has been bullied at work by an individual or a group of
individuals is one of the matters about which I must be satisfied before considering whether to
exercise my discretion to make an order to stop bullying under s.789FF.
[115] As s.789FF(1)(b) makes clear, I must be satisfied not only that Mr Cain has been
bullied at work by an individual or group of individuals but also that there is a risk that he will
continue to be bullied at work by that individual or group of individuals.
[116] Therein lays the difficulty for Mr Cain. It seems to me that I have no power to make
an order – whether interim or final, to stop bullying, unless I can be satisfied of the two limbs
in s.789FF(1)(b). Relevantly I must be satisfied not only that Mr Cain has been bullied at
work by an individual or group of individuals but also that there is a risk that at work Mr Cain
156 Ibid.
[2020] FWC 1914
29
will continue to be bullied by the individual or group of individuals identified in his
application.
[117] From what I have said, it necessarily follows that I do not have jurisdiction to make an
interim order to stop bullying –unless the relevant requirements of s.789FF are satisfied.157
Section 789 FF
[118] Section 789FF of the Act includes three preconditions on the making of an order to
stop bullying. They are:
a) the worker made an application pursuant to s.789FC (s.789FF(1);
b) the Commission is satisfied that the worker has been bullied at work
(s.789FF(1)(b)(i)); and
c) there is a risk that the worker will continue to be bullied at work (s.789FF(1)(b)(ii)).
[119] Mr Cain advanced that the Commission could be satisfied that Mr Cain had been
bullied at work and there is a risk that he will continue to be bullied at work, based on
findings of fact that are open to be made, and which he contends should be made.
Reasonable belief - s.789FC(1)
[120] For this type of application, an applicant must ‘reasonably believe’ that she or he has
been bullied at ‘work’. For the belief to be considered ‘reasonable’, it must be one that is
actually and genuinely held, as well as it being reasonable in an objective sense.158 When
speaking of an ‘objective sense’ it has been said that this in turn means ‘there must be
something to support it or some other rational basis for the holding of the belief and it is not
irrational or absurd’.159
[121] In the decision of Mac v Bank of Queensland Limited & Others160 (BOQ), the Vice
President expressed that it can be anticipated that in most cases it will not be in dispute that
the applicant reasonably believes he or she has been bullied at work, such as to permit the
making of an application under s.789FC(1), and the Commission will be able to find without
difficulty that the first prerequisite in s.789FF(1) is satisfied.
[122] In BOQ, the Vice President referred to the belief of being bullied at work being a
‘reasonable belief’ in the sense it has something tangible to support it and is not entirely
irrational, absurd or ridiculous.161 The reference to ‘tangible’ would appear to import that a
reasonable belief is one where there is perceptible evidence to support the belief. That is, the
belief is not illusory. Further, if the belief is to be reasonable then its premise ought to be one
of logic.
[123] In this case, it did not appear to be in issue that Mr Cain held a reasonable belief. The
bullying conduct complained of in respect of the three Elected Members and Mr Downing
157 Ibid.
158 Mac v Bank of Queensland Limited & Others [2015] FWC 774, [79].
159 Ibid [79].
160 Ibid [80].
161 Ibid [96].
[2020] FWC 1914
30
was exhaustively detailed with references to what had been said, and in some circumstances
the provision of direct evidence which was said to support the occurrence of the conduct
complained about. It was therefore the case that I found little difficulty arriving at the
conclusion that the requisite belief was held.
‘At work’ – s.789FF
[124] Section 789FF requires that the bullying occur ‘at work’. In the context of whether the
term ‘at work’ extended to circumstances of suspension or personal leave there had, according
to Mr Downing and the City, been limited consideration by the Commission. However,
Counsel for both Mr Cain and Mr Downing noted the observation of the Vice President in
BOQ,162 where in obiter dicta he stated at para [149]:
…it has not been necessary for me to determine whether all of the pleaded instances of
behaviour occurred while Ms Mac was “at work”, although if it was necessary for me to do so,
I would have found that many if not all of the instances of behaviour dating after Ms Mac
went off work because of illness on 7 March 2014 did not occur “at work”.
[125] The City and Mr Downing similarly directed the Commission’s attention to the
decision of Richardson v Optus Retailco Pty Ltd & Ors,163 (Richardson), which dealt with a
s.789FC application. In Richardson it was said that there appeared to be no possibility of a
risk of future bullying at work by the named individuals because the applicant in that case was
not presently at work, having being stood down pending the outcome of the disciplinary
process arising from a co-worker’s complaint.164
[126] The gravamen of the argument for the Mr Downing and the City, was that after
24 October 2020, Mr Cain was not attending work, was not accessing his work email due to
restrictions and not attending work related events. Therefore, it was reasonable to infer for
the purposes of s.789FF(1)(b)(i) that Mr Cain was not ‘at work’ from 24 October 2019 until
the day of the hearing.
[127] The question of when a worker is ‘at work’ in a constitutionally-covered business was
considered at length in the Full Bench decision of Bowker v DP World Melbourne Limited &
Ors (Bowker).165 The conclusions reached by the Full Bench were as follows:
[48] We have concluded that the legal meaning of the expression ‘while the worker is
at work’ certainly encompasses the circumstance in which the alleged bullying
conduct (ie the repeated unreasonable behaviour) occurs at a time when the worker is
‘performing work’. Further, being ‘at work’ is not limited to the confines of a physical
workplace. A worker will be ‘at work’ at any time the worker performs work,
regardless of his or her location or the time of day. As we have mentioned, the focal
point of the definition is on the worker (ie the applicant). The individual(s) who
engage in the unreasonable behaviour towards the worker need not be ‘at work’ at the
time they engage in that behaviour.
162 Ibid.
163 [2019] FWC 5441.
164 Ibid [34] – [35].
165 [2014] FWCFB 9227.
[2020] FWC 1914
31
[49] While a worker performing work will be ‘at work’ that is not an exhaustive
exposition of the circumstances in which a worker may be held to be at work within
the meaning of s.789FD(1)(a). For example, it was common ground at the hearing of
this matter that a worker will be ‘at work’ while on an authorised meal break at the
workplace and we agree with that proposition. But while a worker is on such a meal
break he or she is not performing work. Indeed by definition they are on a break from
the performance of work. It is unnecessary for us to determine whether the provisions
apply in circumstances where a meal break is taken outside the workplace.
[50] In our view an approach which equates the meaning of ‘at work’ to the
performance of work is inapt to encompass the range of circumstances in which a
worker may be said to be ‘at work’.
[51] It seems to us that the concept of being ‘at work’ encompasses both the
performance of work (at any time or location) and when the worker is engaged in
some other activity which is authorised or permitted by their employer, or in the case
of a contractor their principal (such as being on a meal break or accessing social
media while performing work).’
[128] In Purcell v Farah and Mercy Education Ltd T/A St Aloysius College,166 (Purcell) the
Deputy President observed that the Full Bench rejected a submission that conduct occurs ‘at
work’ merely because it has a substantial connection to work. The Deputy President
acknowledged that the Full Bench recognised the difficulty in delineating the boundaries of
what is meant by the words ‘at work’ in s.789FD(1)(a), saying that the approach to this should
be developed over time on a case by case basis. The Deputy President went on to cite the Full
Bench in Bowker, who said:
[53] In most instances the practical application of the definition of ‘bullied at work’ in
s.789FD will present little difficulty. But there will undoubtedly be cases which will
be more complex, some of which were canvassed during the course of oral argument.
For example, a worker receives a phone call from their supervisor about work related
matters, while at home and outside their usual working hours. Is the worker ‘at work’
when he or she engages in such a conversation? In most cases the answer will be yes,
but it will depend on the context, including custom and practice, and the nature of the
worker’s contract.167
[129] As was the case in Purcell, this case raises a complex issue of whether Mr Cain was
‘at work’ at the material times. Mr Cain relies upon certain behaviours of Mr Downing,
Mayor Howlett, Councillor Smith and Councillor Allen, to substantiate his claim that he has
been bullied. However, it can be argued that Mr Cain was not ‘at work’ from 23 October
2019 until the date of the hearing, as he was on personal leave, then special paid leave, and
thereafter suspended on pay.
[130] It should be noted at this point, there is no issue regarding Mr Cain having been ‘at
work’ for the purpose of the complaints outlined in the email dated 23 October 2019 and the
letter to Mayor Howlett of 24 October 2019. Further, particulars in the application that refer
to the increasing isolation of Mr Cain by Mayor Howlett since about 2010, and an increasing
workload since 2017, are behaviours, that in my view, similarly occurred at work. That is not
where the issue lies.
166 [2016] FWC 2308.
167 [2014] FWCFB 9227, [53]; as cited in Purcell, [84].
[2020] FWC 1914
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[131] In Bowker, the Full Bench appreciated the difficulty with confining the term ‘at work’
to simply the ‘performance of work’. The Full Bench stated that ‘at work’ encompassed
situations where the worker was also engaged in some other activity which is authorised or
permitted by their employer.
[132] Yet arguably there will be circumstances where a worker is ready, willing and able to
work, remains in receipt of their salary, but is unengaged in work ‘activity’ having been
instructed not to do so. Examples that come to mind include where a workplace enquiry is on
foot and the worker is instructed not to attend work for its duration. A worker may have been
suspended pending an enquiry into allegations against them, or they may have been placed on
special paid leave notwithstanding they are medically certified fit for work by their general
practitioner. However, in the circumstances referred to, one would anticipate that the
employer or otherwise, may reserve the right to further direct the employee to attend
interviews or meetings or otherwise respond to what is asked of them or directed. That is, the
employee is required to remain ready, willing and able to work. These circumstances differ
markedly to those where the worker is unable to work (for example whilst on personal leave),
or is not ready, willing and able to work.
[133] The principles governing statutory interpretation are well known and therefore I will
not repeat them at length. In Huntsman Chemical Company Australia Pty Limited T/A RMAX
Rigid Cellular Plastics & Others,168 the Full Bench described the contemporary approach to
statutory construction and emphasised the importance of the purposive approach, noting the
requirements of s.15AA of the Acts Interpretation Act 1901 (Cth). Suffice to say, words of a
statute are construed according to their ordinary meaning having regard to their context and
legislative purpose. Context includes the existing state of the law, the mischief the legislative
provisions were intended to remedy and the legislative history.169
[134] As observed, the Full Bench in Bowker expressed that the concept of being ‘at work’
encompasses both the performance of work (at any time or location) and when the worker is
engaged in some other activity which is authorised or permitted by their employer or, in the
case of a contractor, their principal (such as being on a meal break or accessing social media
while performing work). The meaning attributed to the term ‘at work’ almost seems to
necessitate some form of action -whether performance or activity. The word ‘activity’ has
several meanings including: 1. the state of action; doing; 2. the quality of acting promptly;
energy; 3. a specific deed or action; sphere of action: social activities; 4. an exercise of energy
or force; an active movement or operation; and so on.170
[135] When a worker is suspended, instructed not to attend work, or is on special paid leave,
it is difficult to conceive that they are performing work or otherwise they are engaged in some
‘other activity which is authorised or permitted by their employer’. It is of course already
recognised that the term does not import a requirement of being the confined to a physical
workplace.
[136] Mr Cain was initially on a period of personal leave; he then commenced special paid
leave and was thereafter suspended on pay. During his special paid leave and suspension,
168 [2019] FWCFB 318.
169 See Construction, Forestry, Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619, [59]; Peabody
Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FWCFB 2042, [26]-[37]
170 Macquarie Dictionary Publishers, Macquarie Dictionary Online (at 20 April 2020) ‘activity’.
[2020] FWC 1914
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Mr Cain was provided with instruction to attend, or offered the opportunity to attend,
interviews for the purpose of the workplace bullying investigation and the misconduct
investigation. In the circumstances of this matter, Mr Cain was ready, willing and able to
work (for the most part of his absence), there were two investigations occurring that required
his input, and his absence from the workplace was authorised by the Council.
[137] Some of the behaviour Mr Cain relied upon to form the foundation of his application
occurred when he was perhaps perceived to be ‘off work’. The particulars of the alleged
unreasonable behaviour arose, for the most part, from the very process and procedures
adopted by the Council to address MrCain’s bullying complaint and misconduct allegations.
That is, some of the behaviour complained of could be construed to have been management
action. I make no finding at this stage whether such action was reasonable.
[138] It follows that I fail to see why these alleged unreasonable behaviours remain
impervious to this jurisdiction simply because at the relevant time Mr Cain was unable to be
‘at work’ – that is performing work or undertaking an authorised ‘activity’, because of the
instruction provided by his employer, the City. This is particularly the case when that very
instruction is said to have formed part of the repeated unreasonable behaviour.
[139] Section 789FD(2) of the Act is a qualification which reinforces that bullying conduct
must of itself be unreasonable.171 It also emphasises the right of management to take
reasonable management action in the workplace. In its application, the provision comprises
three elements:
a) the behaviour (being relied upon as bullying conduct) must be management action;
b) it must be reasonable for the management action to have been taken; and
c) the management action must have been carried out in a manner that is reasonable.172
[140] In Ms SB, the Commissioner observed that the Explanatory Memorandum refers to
management decisions and decisions about how work is to be carried out. This, said the
Commissioner, suggests that the term may be required to be given a wide meaning under
s.789FD(2) and that the Legislature intended everyday actions to effectively direct and control
the way work is carried out to be covered by the exclusion.173
[141] Clearly, determining whether management action is reasonable requires an objective
assessment of the action in the context of the circumstances and knowledge of those involved
at the time.174 However, if it were accepted that Mr Cain was not ‘at work’ in circumstances
of being directed not to attend work or attend work related events, and of course having had
IT access suspended, therefore precluding working from home, then the management action
taken by the City over three to four months would appear to be immune to objective scrutiny.
[142] It is difficult to reconcile this with the protective purpose of Part 6-4B, a Part that was
enacted to provide an individual right of recourse for persons who are bullied at work to help
resolve the matter quickly and inexpensively.175 The provisions of this Part would be
171 Ms SB [2014] FWC 2104.
172 Ibid.
173 Ibid.
174 Georges and Telstra Corporation Limited [2009] AATA 731, [23] as cited in Ms SB [2014] FWC 2104, [49].
175 Anti-bullying measure – Schedule 3 Fair Work Amendment Bill 2013 29 House of Representatives, [88].
[2020] FWC 1914
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effectively neutered in the aforementioned circumstances. As observed, in some
circumstances that instruction in and of itself, might form part of the alleged repeated
behaviour that is said to be unreasonable.
[143] Part 6-4 of the Act has broad coverage regarding the type of applicants who can apply
for an order under s.789FF. The use of the word ‘worker’ purportedly extends the Part’s
application to employees, contractors, subcontractors, outworkers, trainees, students gaining
work experience and volunteers. It is therefore unsurprising that the Part does not refer
simply to the concepts of an ‘employer’, ‘employee’ and ‘employment’ or ‘employed’.
Having adopted the meaning for the term ‘worker’ from the Work Health and Safety Act
2011, the Explanatory Memorandum176 explains that the definition is broad citing examples
of coverage:
The term extends to persons who carry our work in any capacity for a ‘person conducting a
business or undertaking’ (PCBU), including as an employee, a contractor, a subcontractor, an
outworker, an apprentice, a trainee, a student gaining work experience or a volunteer. The
term also extends to include other persons who are deemed to be workers by section 7 of the
WHS Act for the purpose of that Act, including Members of the Australian Defence Force,
Members of the Australian Federal Policy and Commonwealth Statutory Officers.177
[144] The term ‘at work’ when viewed in this context can be seen to effectively provide a
‘neutral’ term that avoids confining the operation of the Part to the binary relationship of the
employer and employee – in ‘employment’ or whilst ‘employed’. Section 789FD similarly
adopts the language of ‘worker’, ‘at work’ and identifies that it is an ‘individual’ who is the
antagonist in the scenario. The language adopted in Part 6-4 emphasises that the jurisdiction
extends beyond the employment relationship, and in this respect the meaning attributed to the
term ‘at work’ should, in my view, be read in this light.
[145] Mr Cain was on special paid leave and suspended during the period in which some of
the repeated unreasonable behaviours were said to have occurred. During both of these
periods, his non-attendance at work and non-performance had been directed – that is the
Council (City) had authorised the same. Compliant with those instructions, save responding
to allegations or assisting with the workplace bullying investigation, he was not engaged in
the performance of work (at any time or location) or some other ‘activity’ (as defined)
authorised or permitted by the Council.
[146] However, as was observed by the Full Bench in Bowker, the term ‘at work’ will
encompass a range of circumstances. In this case, I have concluded that Mr Cain was ‘at
work’ notwithstanding his absence from the work location and non-performance of the usual
daily responsibilities associated with his role. Council authorised the special paid leave and
thereafter the suspension. While in the true sense of the word he may not have been
otherwise engaged in an ‘activity’, as that term may generally be construed, nonetheless, the
periods of absence were authorised and directed by his employer and Mr Cain ‘acted’178
accordingly by complying with the same.
176 Ibid [103].
177 Ibid [103].
178 See Macquarie Dictionary Publishers, Macquarie Dictionary Online (at 20 April 2020) ‘act’.
[2020] FWC 1914
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Has Mr Cain been bullied?
[147] In order to satisfy the legislative requirement at s.789FF(1)(b)(i), Counsel for
Mr Downing and the City advanced that Mr Cain must demonstrate he has previously been
bullied at work.
[148] Mr Cain first articulated his bullying complaint in his email to Elected Members on
23 October 2019 and his letter to Mayor Howlett on 24 October 2019. Counsel for
Mr Downing and the City observed that neither email nor letter suggested at that time Mr
Cain had any concerns about his treatment by Mr Downing, Mayor Howlett or
Councillor Allen. However, clearly the position changed after 23 October 2019, and it is that
period, up until the date of the hearing, where the focus initially lies.
[149] Regarding that period, it is not inaccurate to state much of the conduct complained of
with respect of Mr Downing, Mayor Howlett and Councillor Allen could be characterised as
the action taken, or the process followed, when managing Mr Cain’s bulling complaint and
investigation into his alleged misconduct. Therefore, it is timely to draw upon the detailed
exegesis of s.789FD(2) in Re SB,179 as the Vice President did in BOQ.180 In Re SB, the
Commissioner stated the following salient points:
[46] Behaviour will not be considered to be bullying conduct if it is reasonable management
action carried out in a reasonable manner.
[47] Section 789FD(2) of the FW Act is not so much an “exclusion” but a qualification which
reinforces that bullying conduct must of itself be unreasonable. It also emphasises the right of
management to take reasonable management action in the workplace. In its application, the
provision comprises three elements:
● the behaviour (being relied upon as bullying conduct) must be management action;
● it must be reasonable for the management action to have been taken; and
● the management action must have been carried out in a manner that is reasonable.
[48] The Explanatory Memorandum refers to management decision and decisions about how
work is to be carried out. This suggests that the term may be required to be given a wide
meaning under s.789FD(2) and that the Legislature intended everyday actions to effectively
direct and control the way work is carried out to be covered by the exclusion.
[49] Determining whether management action is reasonable requires an objective assessment
of the action in the context of the circumstances and knowledge of those involved at the time.
Without limiting that assessment, the considerations might include:
● the circumstances that led to and created the need for the management action to be taken;
● the circumstances while the management action was being taken; and
● the consequences that flowed from the management action.
[50] The specific ‘attributes and circumstances’ of the situation including the emotional state
and psychological health of the worker involved may also be relevant.
179 [2014] FWC 2104, [47]-[53].
180 [2015] FWC 774.
[2020] FWC 1914
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[51] The test is whether the management action was reasonable, not whether it could have
been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’. In general
terms this is likely to mean that:
● management actions do not need to be perfect or ideal to be considered reasonable;
● a course of action may still be ‘reasonable action’ even if particular steps are not;
● to be considered reasonable, the action must also be lawful and not be ‘irrational,
absurd or ridiculous’;
● any ‘unreasonableness’ must arise from the actual management action in question,
rather than the applicant’s perception of it; and
● consideration may be given as to whether the management action involved a
significant departure from established policies or procedures, and if so, whether the
departure was reasonable in the circumstances.
[52] For the circumstances in s.789FD(2) of the FW Act to apply, the management action
must also be carried out in a ‘reasonable manner’. Consistent with the approach above, what is
‘reasonable’ is a question of fact and the test is an objective one.
[53] Whether the management action was taken in a reasonable manner may depend on the
action, the facts and circumstances giving rise to the requirement for action, the way in which
the action impacts upon the worker and the circumstances in which the action was
implemented and any other relevant matters.
[54] All of the requirements of s.789FD(1) must be read together. In terms of the issues in
dispute in this case, this means that the Commission must consider whether an individual or
group of individuals have repeatedly behaved unreasonably towards the applicant and whether
that behaviour has created a risk to health and safety. A positive finding on each of these
elements, and if appropriate, a finding that the circumstances contemplated in s.789FD(2) of
the FW Act do not apply to the behaviour, must be made for the Commission to find that the
applicant worker has been bullied at work. [Footnotes omitted]181
Mr Downing
[150] The application detailed at length the repeated unreasonable behaviour of Mr
Downing, which was said to have created a risk to Mr Cain’s health and safety. Each
behaviour is considered.
Unlawful and/or unreasonable directions to Mr Cain and denial of Mr Cain’s access to the
workplace and to workplace materials
[151] The application noted to the effect that on 6 November 2019, Mr Cain was:
i. placed on ‘special paid leave’ despite being on authorised sick leave;
ii. banned from attending work-related functions and events; and
iii. banned from the workplace and from accessing workplace email and other
workplace materials.
[152] There was no dispute that on 24 November 2019, Mayor Howlett called an informal
meeting of Council and members of the Executive Team. At that meeting the Council, not
Mr Downing, resolved to restrict Mr Cain’s access to emails on the basis that such restriction
was necessary otherwise Mr Cain would continue to expose himself to the workload he had
181 Ms SB [2014] FWC 2104.
[2020] FWC 1914
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complained about. In the letter of 28 October 2019 to Mr Cain, it was explained that
Mr Cain’s focus was to be on his physical and mental health, and to ensure the necessary
separation from work issues Council had requested his IT system access (including email) be
temporarily suspended for the duration of his absence.182
[153] The City and Mr Downing submitted it was the Council who resolved to put
restrictions in place to ensure Mr Cain was protected from the stressors he was experiencing
in the workplace. The evidence supports this contention. Mr Cain had after all identified
stressors which included dealing with work emails and engaging with Elected Members at
work and at work related events. The restrictions implemented appeared to be a responsible
response.
[154] A resolution was made at the SCM on 4 November 2019 to the effect that Mr Cain
would be placed on ‘special paid leave’ whilst an investigation took place.183 The Council,
not Mr Downing, resolved to put Mr Cain on ‘special paid leave’. The reason provided was
that Council did not want Mr Cain to use his accrued sick leave entitlements during a period
when he was on leave because he felt unsafe at work. In my view the explanation was
plausible, and the action taken was reasonable. While there was suggestion by Mr Cain that
the Council operated in a manner that for the most part saw it simply adopting the
recommendations advanced by, in this case, the Acting CEO, there was no evidence which
pointed to the Council abrogating its responsibilities or working at the behest of Mr Downing.
As Mr Downing pointed out in his evidence, the decisions to place Mr Cain on special paid
leave and direct him not to attend work were made by the Council after five hours of
deliberation during the SCM on 4 November 2019. There was no reason advanced to
disbelieve Mr Downing in this respect.184
[155] While Mr Cain may have considered such instructions or restrictions constituted an
unilateral and unlawful variation of his contract of employment, the actions taken in the
context of the application on foot, and given the circumstances that Mr Cain had reported had
beleaguered him for some time, appeared more than reasonable. Further, in the context of
providing a safe working environment, it is understandable that the Council saw fit to remove
Mr Cain from the very environment that was, according to him, laden with stressors and
effecting his health, until such time as the Council could investigate the issues raised and
arrive at an outcome with respect to them. Again, it was not Mr Downing that resolved to
direct Mr Cain that he had been placed on special paid leave.
[156] As it was, Mr Cain understood from the correspondence that he was being kept away
from the workplace to protect his safety and wellbeing pending an investigation into his
bullying complaint.185 While Mr Cain may have disputed whether the Council had a legal
basis for the instruction (authorised by an express or implied term of the contract), and attests
his request for a copy of the Bullying Policy, which was said to have been the source of
authority for the instruction given was denied – it nevertheless remains the case that on any
objective level the instructions given or restrictions put in place appeared resoundingly
reasonable in light of the complaints made and health impacts described.
182 First Cain Affidavit Annexure SC-2.
183 Ibid [26].
184 Downing Statement [33].
185 First Cain Affidavit [27].
[2020] FWC 1914
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[157] It is not the case that the conduct complained of in this part constitutes unreasonable
behaviour – whether by the Council or Mr Downing – however, noting that such assertion is
not directed toward the Council or the City.
Unfair behaviour towards Mr Cain since about 24 October 2019
[158] Concerning further unfair behaviour, the particulars relied upon included a failure:
i. to notify Mr Cain of a SCM on 4 November 2019 and to give him notice that
the purpose of the meeting included matters concerning him, in breach of the
Council Meetings Policy of the City of Cockburn; and
ii. to promptly communicate to Mr Cain the 4 November resolution;
[159] While Mr Cain took issue about not being notified of the SCM held on
4 November 2019, again, I do not consider that such omission constituted unreasonable
behaviour, as that term is understood by reference to the Act. According to Mr Downing and
the City, there was no legal obligation on Mr Downing to inform him of the SCM – a point
that was not rebutted.
[160] Mr Cain stated he had received a letter of 6 November 2019, in which he was
informed of the resolution of 4 November 2019. In this respect Mr Cain gave evidence that
he received a letter of 6 November 2019 from Mayor Howlett in which he was informed to
the effect that the Council had ‘resolved’ that he not attend work or work-related matters,
including emails, functions, events, conferences and related travel until ‘the matters’ are
resolved.186 I do not think it can be said that there was a failure to ‘promptly’ communicate
with Mr Cain the 4 November resolution – given the lapse of only two days. While it may
have been the case that the Council could have been swifter with its communication, the Act
does not require management actions that are perfect or ideal. The action taken was
reasonable.
Other particulars of unfair behaviour
[161] Further examples of unfair behaviour towards Mr Cain included that an investigation
had been commenced in November 2019 into allegations of misconduct against Mr Cain
without notice to Mr Cain. Having heard from Counsel for Mr Cain, and in light of Mr Cain’s
evidence, it appeared Mr Cain held an expectation that prior to formally notifying him about
the allegations, they would have been informally broached with him.
[162] While some businesses may adopt this approach with their employees, others may
prefer to provide precise written information of alleged misconduct to their staff. There does
not appear to be anything out of the ordinary concerning the latter approach. Perhaps much
will turn on the relationship between employer and employee, and past practices. There was
no evidence to suggest that the past practice adopted was one where allegations were
‘informally’ broached, prior to written notification of the same. As it was, Mr Cain was
informed of the allegations after the Council resolved to investigate the matter and to engage
an investigator to do so. Mr Cain was informed of this by letter on 6 December 2019. Again,
the action taken, or process followed, is not coloured by unreasonableness.
186 Ibid [37].
[2020] FWC 1914
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[163] Mr Cain asserted it was unfair behaviour to have commenced the misconduct
investigation in December 2019, in circumstances where an investigator had been appointed
to investigate the allegations, and yet he had not been notified of the allegations. I disagree
that this constituted unfair or for that matter, unreasonable behaviour.
[164] The engagement of the investigator prior to Mr Cain being notified of the allegations
appears to have founded Mr Cain’s assertion. Yet even if it was the case that an investigator
was appointed prior to Mr Cain being informed of the allegations, this again does not appear
illogical or absurd. It is within the realm of reasoned behaviour that having identified
allegations of misconduct, the employer may prefer to inform the employee of the allegations,
how the investigation will unfold, who is appointed to conduct the investigation and who is
the point of contact, at the same time. Such a process does not appear, in the context of this
matter, to deny Mr Cain procedural fairness. Further, were there a denial of procedural
fairness it does not necessarily follow that the conduct falls under the remit of unreasonable
behaviour such that it forms part of bullying behaviour.
[165] The letter of 6 December 2019 to Mr Cain, stated it was the Council’s decision to
investigate the matters. The letter of 6 December 2019 did not identify the investigator at that
point but noted ‘the City is currently in the process of determining the investigation process.
You will be given further detail regarding the investigation process and allegations next
week…’. The latter letter of 12 December 2019 provided particulars of the alleged
misconduct and confirmed the appointment of Mr Cusack. I do not consider there is merit in
the contention that the process adopted by Mr Downing on behalf of the City was unfair.
[166] The unfair behaviour also covered the denial by the City of Mr Cain’s access to
records, which he purported to have required to properly prepare for and participate in the
investigation by the City into his bullying complaint, in breach of the Bullying Policy of the
City. The contention is absent merit. With respect to this, I observe only that when Mr Cain
provided Mayor Howlett with his complaint letter of 24 October 2019, he referred to
seventeen attachments all of which accompanied the letter. It was therefore the case that
accompanying the complaint were records sought to be relied upon by Mr Cain.
[167] Counsel for Mr Cain, said in effect that the Bullying Policy did not constitute a
direction by the City, and therefore there was nothing for Mr Cain to abide by simply by
reason of the Bullying Policy - it simply informs employees what the City may do if felt it
appropriate to do so. Even if there were a breach of the Bullying Policy, as Mr Cain suggests,
it remains unclear how this constituted bullying as defined in s.789FD, and how Mr Downing
is responsible for such breach when Council made the decision to restrict Mr Cain’s access to
the IT system, not Mr Downing.
[168] Mr Cain claimed that the failure to notify him of the SCMs on 4 December 2019,
13 January 2020, 11 March 2020 and 26 March 2020, and to give him notice that the purpose
of the meetings was to consider matters concerning him constituted unfair behaviour. There
was no legal obligation on Mr Downing to inform Mr Cain that those meetings were being
held. While Mr Cain may have preferred to have been notified of the SCMs, Mr Downing not
doing so does not in my view constitute unfair behaviour in the absence of an obligation to do
so.
[169] Mr Cain advanced that the unfair behaviour was evinced by Mr Downing failing to
take steps or proper steps to ensure as far as possible that Mayor Howlett, Councillor Smith
[2020] FWC 1914
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and Councillor Allen, as the case may be, refrained from being involved in Mr Cain’s
bullying complaint and the allegations of misconduct against Mr Cain, including, without
limitation, at the SCM on 4 November 2019, 4 December 2019, 13 January 2020,
11 March 2020 and 26 March 2020. From the evidence led by the three Elected Members and
the City, I am unable to conceive how Mr Downing had authority to restrain such Elected
Members. Evidence given was suggestive that the position of CEO or Acting CEO may
include a responsibility to advise Elected Members. The evidence of Councillor Smith,
whom I had no reason to disbelieve as she seemed remarkably forthright, was to the effect
that advice was given by the CEO or Acting CEO on request by the Elected Member.
Additionally, Councillor Smith noted to the effect that the Elected Member was free to make
of that advice whatever she or he chose.
[170] Additionally, Mr Cain contended Mr Downing did not take steps to ensure he was
provided with an opportunity to respond to the report of one Dr Sitlington, into his bullying
complaint, and one Mr Brendan Cusack, into the allegations of misconduct against him.
There was no legal or procedural obligation on Mr Downing to ensure Mr Cain had an
opportunity to respond to these investigation reports. The evidence shows that Mr Cain was
given opportunity to participate in both investigation processes. Reliance on this ‘omission’
by Mr Downing does not in my view evince unfairness, and the submissions of Counsel for
Mr Cain do not advance the matter further. The contention is meritless.
[171] The assertion of unfair conduct extended to Mr Downing engaging in unreasonable
behaviour because of his failure to take reasonable steps to ensure that Mayor Howlett
allowed Mr Cain an opportunity to address the Council. The evidence did not lead to this
conclusion. Mr Downing did not have legal authority to provide Mr Cain with an opportunity
to address the Council. Further, it is unclear what action would constitute ‘reasonable steps’
and why Mr Downing was so obliged to take reasonable steps to ‘ensure’ that another person,
in this case, Mayor Howlett, acted in a certain way.
[172] The unreasonableness of Mr Downing’s behaviour extended to the cancelling of the
scheduled SCM on 26 March 2019. Yet the evidence before me was that Mr Downing had no
legal ability or authority to cancel Council meetings. The contention of unreasonableness is
not made out.
Public disclosure of personal information
[173] The public disclosure of Mr Cain’s personal information without his consent formed
part of the unreasonable behaviour Mr Downing is said to have engaged in. Mr Cain
contended that Mr Downing disclosed, in the agenda for the SCM on 4 November 2019,
personal medical information pertaining to his fitness for work status. However, Counsel for
Mr Downing and the City advanced that Mr Downing was not responsible for the preparation
of the agenda, and the item was to be considered behind closed doors. It followed no
members of the public were present when the item was discussed. Given the evidence led, I
was unpersuaded that Mr Downing’s conduct was unreasonable. It was not apparent that Mr
Downing had prepared the agenda, and as it was, Mr Cain had already disclosed the state of
his health to several CEOs, therefore placing the information into the public domain.
Unfair behaviour regarding the allegations of misconduct
[2020] FWC 1914
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[174] Unfair behaviour was said to have occurred on 6 December 2019, when it was alleged
that Mr Cain had engaged in misconduct in circumstances where:
i. the particulars of the allegations did not support an inference of misconduct by
Mr Cain when referred to the SCM on 4 December 2019; and
ii. one of the allegations was baseless regarding the improper attendance at a
certain conference on 10 November 2019 whilst on ‘special paid leave’ – in
circumstances where Mr Cain had not been in attendance.
[175] While Mr Downing may have assumed responsibility for bringing to the attention of
the Council the allegations, ultimately it was the Council, not Mr Downing, who resolved to
put the allegations to Mr Cain in writing, and determined the appropriate wording of the
misconduct allegations against him. The assertion that Mr Downing acted unfairly by putting
to Mr Downing the allegations of misconduct, is unsupported by the evidence led.
[176] Mr Cain contended that it could be inferred that as Acting CEO, at all material times it
was Mr Downing who acted against him purportedly in the name of the City. Such an
assertion again suggests that the Council, or rather those persons who constituted the Council,
had no independence of thought and unquestioningly followed the recommendations of the
Acting CEO. There is no evidence before me to draw that conclusion. Further, while it was
asserted that one of the allegations was baseless regarding improper attendance at a particular
conference, the evidence given, which I had no cause to disbelieve, was that an error had been
made regarding the name and location of the conference –which was latterly corrected. While
Mr Cain held the view that the particulars of the allegations did not support an inference of
misconduct, such allegations were not absurd or unfounded by evidence. It could not be said,
therefore, that they were unreasonable, or that putting them to Mr Cain to respond to was
unreasonable.
Other allegations
[177] Mr Cain asserted that on 19 December 2019, a new allegation of misconduct was
levelled against him. This was, according to Mr Cain, an unauthorised and unfair substitution
of a new allegation of misconduct in circumstances where there was not the proper
authorisation by the Council to do so, and without apology or explanation to Mr Cain. The
evidence of Mr Downing was to the effect that an error was made in the original allegation
and was he therefore corrected it. That error in the third allegation against Mr Cain was such
that it referred to Mr Cain attending the NGAA Conference when it was the LG Pro dinner.
The behaviour of Mr Downing in correcting the error when it came to his attention formed, in
my view, part of the reasonable management decisions taken by him. Further, the correction
made left unadulterated the crux if the issue, which was an allegation that Mr Cain had
attended a work-related event in circumstances where instructed not to do so.
[178] Regarding the contention that Mr Downing had acted unreasonably and unlawfully
when he did not mediate with Mr Cain about the matters then in issue – namely the workplace
bullying investigation and the misconduct allegation, it was the Council, not Mr Downing,
that was responsible for determining whether, when and on what basis it would mediate with
Mr Cain. The behaviour pointed to was not conduct engaged in by Mr Downing. Further,
Mr Cain’s employment contract, which dealt with mediation, expressly provided that
[2020] FWC 1914
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mediation did not relate to disciplinary action or terminating employment. The City and Mr
Downing sought clarification what it was Mr Cain wished to mediate about – there appeared
to not have been further follow up by Mr Cain.
[179] Mr Cain submitted he had been unfairly isolated, given a staff member was precluded
from seeing him whilst he was on sick leave on 11 November 2019. However, as of
11 November 2019, the City considered that Mr Cain was on special paid leave and an
investigation was underway concerning allegations of workplace bullying. Mr Cain had, by
this time, reported that his mental and physical health had been significantly impacted, and
consequently the Council had resolved that for the protection of Mr Cain’s safety and
wellbeing he would not attend to any work related matters.
[180] Given all the circumstances, the conduct of Mr Downing in this respect can be seen to
be reasonable management action in that he was upholding the terms of Mr Cain’s special
paid leave as determined by the Council. That is not to suggest that the conduct in question
was best practice or perfect. Perhaps with the benefit of hindsight, allowing a staff member
(on the proviso they were not a witness in the workplace investigations on foot) to have
visited Mr Cain would have been a legitimate allowance. All the same, Mr Downing’s
conduct was not unreasonable.
Mayor Howlett
[181] Mr Cain asserted that Mayor Howlett had engaged in repeated unreasonable behaviour
towards him that created a risk to his health and safety. I have found this not to be the case.
[182] It was advanced that Mayor Howlett had unfairly isolated Mr Cain since about 2010,
by his failure to properly discharge his role and assist Mr Cain in managing the unacceptable
behaviour within the Elected Member group. However, the evidence at hearing was that
Mayor Howlett had no legal authority to ‘manage’ the behaviour of other Elected Members,
which I accept. The evidence showed that Mayor Howlett was absent authority to manage the
performance or behaviour of other Elected Members, including the alleged unacceptable
behaviour by Councillor Smith and others towards Mr Cain and others.
[183] Mr Cain also considered Mayor Howlett had behaved unfairly since about
4 November 2019, because despite his purported conflict of interest as a person against whom
Mr Cain alleged bullying conduct, he had repeatedly failed to refrain from being involved in:
i. consideration by the Council of the City of Mr Cain’s bullying complaint
notified by Mr Cain in an email on 23 October 2019 to the Elected Members of
the Council and on 24 October 2019 to Mayor Howlett as amplified in an
interview with one Dr Sitlington on 5 December 2019;
ii. in the making of a resolution by the Council at a SCM on 4 November 2019;
and
iii. consideration by the Council of allegations of misconduct levelled against
Mr Cain by Mr Downing including a SCM on 4 December 2019,
13 January 2020 and 11 March 2020.
[184] In Re George, the Commissioner observed that the Commission might need to form
some views about the apparent legal validity of various decisions and actions in order to
[2020] FWC 1914
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determine its jurisdiction to deal with matters.187 The Commissioner continued that assuming
the Commission otherwise had jurisdiction, this could include forming a view about whether
the conduct of the parties in light of the purported resolutions was unreasonable so as to
potentially form part of findings relevant to s.789FD of the Act - whether there has been
bullying conduct.188
[185] Based on the evidence given, there appeared to be no legal or procedural obligation on
Mayor Howlett to remove himself or Councillors Smith and Allen, from considering and
voting on the matters that were raised at the SCM regarding Mr Cain (see paragraphs [226] –
[233] of this decision). Further, I do not consider that Mayor Howlett’s inclusion in the
SCMs invalidated the decisions made or resolutions passed.
[186] Further, I do not consider that the content of such resolutions was in anyway
unreasonable given the circumstances. Mayor Howlett was not formally the subject of
Mr Cain’s bullying complaints until January 2020 (when Mr Cain raised allegations against
Mayor Howlett for the first time). By that time, both the bullying and the misconduct matters
were being independently investigated – which in my view was an appropriate course for the
Council to have taken.
[187] Mr Cain asserted that Mayor Howlett had provided him with unreasonable and
unlawful directions– on 28 October, in effect banning Mr Cain from the workplace and
denying him access to workplace resources. However, as has been previously observed, it
was the Council that met informally on 24 October 2019, and determined the course of action
to take, not Mayor Howlett himself. Given all the circumstances, particularly the content of
Mr Cain’s email dated 23 October 2019, it is understandable why the Council determined that
for Mr Cain’s safety and wellness there needed to be a complete separation from work. Mr
Cain’s report regarding his health was unequivocal in its terms – he said he had resorted to
medical care, pharmacological support and other assistance.
[188] Both parties provided a detailed account of the chronology regarding the progression
of Mr Cain’s bullying complaint. Mr Cain expressed there was an undue delay regarding the
bullying investigation and that Mayor Howlett did not ensure an expeditious determination by
the Council of his complaint. I do not consider that this was the case. It was evident that the
workplace investigation process was somewhat prolonged. However, the delays encountered
did not appear attributable to the conduct of Mayor Howlett.
[189] Mr Downing and another member of the Executive Team facilitated the investigative
process conducted by Jackson McDonald and Dr Sitlington. There is no evidence to suggest
that Mayor Howlett was unavailable or uncooperative concerning his interview for the
purpose of the investigation. Mr Downing received the workplace bullying reports from
Jackson McDonald on 3 March 2020 and on or around that time, Mayor Howlett was advised
the bullying investigation was completed. On 4 March 2020, one day later, Mayor Howlett
sent to Mr Downing a letter calling for a SCM on 11 March 2020.189 The SCM occurred on
the proposed date.
187 Re George [2017] FWC 4349, [30].
188 Ibid [30].
189 Downing Statement [39].
[2020] FWC 1914
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[190] Similarly, Mr Cain contends that Mayor Howlett occasioned an undue delay, as he did
not ensure an expeditious determination by the Council of the allegations of misconduct
against Mr Cain. It was purported that Mayor Howlett had failed to ensure such allegations,
which were first the subject of a resolution of Council on 4 December 2019, were dealt with
by Council expeditiously.
[191] I do not intend to traverse all the evidence in this respect concerning the
correspondence exchanged between Allion Partners and Jackson McDonald regarding the
misconduct enquiries. The background information provided at the start of this decision goes
some way to outline the positioning by missives - adopted by both firms (see paragraphs [20]
to [36]). Mr Downing and the City contend that Mayor Howlett was not responsible for
delays relating to the bullying and misconduct investigation processes and that Mr Cain was a
major contributor in the delay in those matters being finalised. The contention is not without
merit and, at the very least, I find that the delays were not attributable to the conduct of Mayor
Howlett – whether by his action or purported omission in ensuring the expediting of the
process.
[192] Mr Cain asserted that Mayor Howlett had unreasonably refused him the opportunity to
address the Council by way of deputation – at the SCM on 11 March 2020 and the SCM
scheduled for 26 March 2020, in relation to the allegations of misconduct by him. In short, the
action constituted reasonable management action because of the following reasons: (a) Mr
Cain was suspended from work at the time; (b) Mr Cain was not privy to the material before
the Council in those meetings; (c) the meetings were closed to members of the public and (d)
Mr Cain had been given numerous opportunities to participate in the bullying investigation
and the misconduct investigation. However, if the Council were deciding whether to
terminate Mr Cain’s employment, before doing so, one would anticipate that Mr Cain would
be afforded the opportunity to respond and provide to Council mitigating circumstances
which may negate such decision. The omission of such step may establish procedural
unfairness, but that in and of itself may not constitute unreasonable behaviour for the purpose
of this jurisdiction – much turns on context, and of course consideration whether the
behaviour (if found to be unreasonable) is repeated.
Councillor Smith
[193] Mr Cain alleged that Councillor Smith had engaged in repeated unreasonable
behaviour towards him that created a risk to his safety and health. The behaviours detailed in
Mr Cain’s application are set out below.
a) Abusive language by Councillor Smith – since about 2010, during various Elected
Member Briefing Sessions.
b) False allegation by Councillor Smith – in about May, June, August and December
2018, and August and October 2019.
c) Inappropriate remarks by Councillor Smith – since about 2010, in various emails to
Mr Cain and other staff of the City.
d) Unfair behaviour by Councillor Smith– since about 4 November 2019, despite their
conflict of interest as persons against whom Mr Cain alleges bullying conduct,
repeated failure by either one or more of Mayor Howlett, Councillor Smith and
Councillor Allen to refrain from being involved in:
i. consideration by the Council of the City of Mr Cain’s bullying complaint
notified by Mr Cain in an email on 23 October 2019 to the Elected Members of
[2020] FWC 1914
45
the Council and on 24 October 2019 to Mayor Howlett as amplified in an
interview with one Dr Sitlington on 5 December 2019;
ii. in the making of a resolution by the Council at a SCM on 4 November 2019;
and
iii. consideration by the Council of allegations of misconduct levelled against
Mr Cain by Mr Downing including an SCM on 4 December 2019, 13 January
2020 and 11 March 2020.
e) Unfair social media – postings by Councillor Smith about Mr Cain on her Facebook
page on or about 4 November 2019, 7 November 2019 and 13 November 2019 of
material concerning Mr Cain’s bullying complaint.
[194] Starting with the contention that Councillor Smith had engaged in unfair behaviour by
participating in Council meetings since 4 November 2019, despite her ‘conflict of interest’, I
note, as I did previously with respect to the findings concerning Mayor Howlett, that the
evidence given did not support there being any legal or procedural obligation on the
Councillor to remove herself from considering and voting on those matters.
[195] As, I have said with respect to the findings concerning Councillor Allen, even if it
were the case that Councillor Smith had an impartiality conflict, the evidence provided, which
was not rebutted, was that Councillors who declare an impartiality interest (conflict interest)
are expected to consider and vote on that particular matter – provided that they declare that
interest. According to the evidence, if a Councillor is present in the Council meeting, they
have a duty to exercise a vote.
[196] The circumstances regarding Councillor Smith, somewhat differ to Mayor Howlett
and Councillor Allen, in that for two months she was suspended from the Council. Therefore,
for the period of 3 February 2020 to 3 April 2020,190 Councillor Smith did not have input into
the allegations of misconduct – particularly at the SCM on 11 March 2020.
[197] By letter of 24 October 2019, Mr Cain set out in detail the behaviours of Councillor
Smith which had led him to conclude that the Councillor had made numerous rude, abusive,
or inappropriate remarks, and had made false or unfounded allegations. At hearing,
Councillor Smith led no evidence to rebut the content reported in the letter of 24 October
2019. Further, it should be noted that examples of such conduct arise from direct evidence.
While not listed at length, some examples are provided.
[198] By email dated 13 October 2019, Councillor Smith informed ‘12 Directors Executive
Team DL’ and Ms Samantha Seymour-Eyles, the City’s Manager of Corporate
Communications of the following:
Subject: Stalking
Dear Stephen
I know social media is way behind catching up so far a policy goes.
While I have blocked you and others from my Facebook page, other candidates and
community members who are NOT your friends have asked me – why does
STEPHEN CAIN (picture attached) keep coming up as a possible friend
190 Ibid [45].
[2020] FWC 1914
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I contacted Facebook and they said the reason this happens is – if YOU are looking at
their pages YOU may come up as a POSSIBLE friend.
Not sure how we deal with this new faze of (stalking), policy, etc
Something the naïve Facebookers may want to consider.
Kindest Regards
Lee-Anne191
[199] On each occasion I have had read this email, I am discouraged that an Elected Member
of a Council would engage in such puerile conduct. Putting aside that somehow Councillor
Smith was elected as a Councillor of the City, and arguably is required to act in that position
absent absurdity, she has, without any semblance of cogent evidence, directed a complaint of
‘stalking’ against Mr Cain. That Mr Cain would understandably be humiliated and
embarrassed given the audience copied to the email (Email address: ‘12 Directors Executive
Team DL’ directs email to all members of the City’s Executive Team),192 and the substance of
that which was said, perhaps goes without saying. The email speaks for itself.
[200] Yet, that is not all of it. In email correspondence mid-April 2017, an issue appeared to
have arisen regarding a constituent’s access to a meeting in which the constituent wanted to
ask questions and convey her issues. Councillor Smith had sent to Mr Cain the Access and
Inclusion Plan link in an email titled ‘Inclusion’. That constituent in question was away on
business at the time of the scheduled meeting, and a representative of the City (not Mr Cain)
explained there would be no meeting minutes accessible as it was a workshop conducted on a
one on one basis. Mr Cain wrote to Councillor Smith explaining:
Thanks for this clarification. I was aware that a number of landowners accepted the offer of
separate briefings due to their absence, these are being coordinated so that all relevant staff
(planning, roads, environment) will be in attendance as required. Ms Cole is on a business trip
and to the best of our knowledge has no physical disability.
The only person that attended last night with a physical disability had their needs covered.
Likewise the residents that had a language problem were represented by their son as their
translator.193
[201] Councillor Smith replied on 12 April 2017, having copied in ‘15 Elected Members
DL; Directors’:
You are sooooooo missing the point Stephen.
How misinformed you are around mental health and inclusion.
That’s frightening.
[202] Once again, Councillor Smith considered it appropriate to copy in an audience of the
City’s Directors and Elected Members. In no uncertain terms, by sending that email, she
disparaged Mr Cain.
191 Cain Statement Annexure SC-4, Attachment 16.
192 Witness Statement of Donald Mervyn Green [9].
193 Cain Statement Annexure SC-4.
[2020] FWC 1914
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[203] Following an issue regarding another Councillor seeking a matter to be noted without
debate, Mr Cain emailed Councillor Smith on 9 June 2017 explaining the position taken. The
email from Mr Cain was in neutral terms and informative. Councillor Smith responded
within a minute of receiving the email, only to Mr Cain, ‘Wrong wrong wrong Councillor
Protelli referenced this seconds before voting in item 15.11’.194 Councillor Smith thereafter
sent a further email dated 9 June 2017, copying in on the chain ‘Directors’, and stated ‘I have
very grave concerns regarding the leadership being shown. If it was not for the integrity and
good values displayed by our Mayor I would really struggle to work beneath such concerns’.
Having copied in the other Directors of the City, Councillor Smith called into question Mr
Cain’s leadership capability in front of his subordinates; the conduct was completely
unreasonable.
[204] That unreasonableness manifested itself again in an email around the same time, one
that appears to be linked to the chain of correspondence dated 9 June 2017, where Councillor
Smith stated to Mr Cain, again with ‘12 Directors Executive Team DL; 15 Elected Members
DL’ copied, ‘you are missing my point – very convenient of you. I am not responding any
further and like I said ‘you have to sleep at night’’.
[205] I have found that not only has Councillor Smith made inappropriate remarks toward
Mr Cain, at least since 2017 (albeit one email dates back to 2013), but that such conduct is
unreasonable and has been repeated. I do not consider that any of incidents referred to above
constitute repeated behaviour that amounts to reasonable management action carried out in a
reasonable manner.
[206] Concerning the remainder of the Councillor Smith’s purported conduct, specifically,
the abusive language directed towards Mr Cain, false allegations and unfair social media, the
evidence led by Mr Cain was not rebutted. On this basis, I am content to believe Mr Cain’s
evidence, and am satisfied Councillor Smith’s behaviour towards Mr Cain was unreasonable
and repeated.
Councillor Allen
[207] Mr Cain alleged that Councillor Allen had engaged in repeated unreasonable
behaviour towards him that created a risk to his safety and health. My first observation
regarding the contentions levelled at Councillor Allen, are that they are remarkably tenuous
and do not advance Mr Cain’s argument that he has been bullied by Councillor Allen.
[208] Mr Cain argued he had borne for some time inappropriate remarks being made by
Councillor Allen in various emails to him and other staff at the City. One email was
submitted in evidence. As detailed at paragraph [20] of this decision, in the course of email
correspondence, Councillor Allen had stated in an email addressed to Mr Cain, and to which
Mr Arndt and Mr Lefort were copied, ‘[W]hen are we going to grow some balls and act on
this location’.
[209] Councillor Allen explained that he had copied in both Mr Arndt and Mr Lefort to the
email because it was a Council issue and a planning issue that had been going on without
resolution. It was Councillor Allen’s view that it was becoming embarrassing for the Council
194 Ibid Annexure SC-4.
[2020] FWC 1914
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and for him, as it was in his particular ward. When asked if he considered the email
disparaging of Mr Cain, Councillor Allen expressed that the offending sentence was not
directed to a person, but rather ‘as us as the City’. Having read the email correspondence, I
find Councillor Allen’s explanation plausible. It was not an appropriate turn of phrase and it
is not excused by stating one has a very open relationship with another (Mr Cain), or that
what you see is what you get, however, it remains the case that the statement was not directed
to Mr Cain, but rather was referring to the Council and the City as a collective.
[210] Like the argument advanced against Mayor Howlett and Councillor Smith, Mr Cain
contended Councillor Allen had embarked in unfair behaviour since 4 November 2019:
a) despite their conflict of interest as persons against whom Mr Cain alleges bullying
conduct, repeated failure by either one or more of Mayor Howlett, Councillor Smith
and Councillor Allen to refrain from being involved in:
a. consideration by the Council of the City of Mr Cain’s bullying complaint
notified by Mr Cain in an email on 23 October 2019 to the Elected Members of
the Council and on 24 October 2019 to Mayor Howlett as amplified in an
interview with one Dr Sitlington on 5 December 2019;
b. in the making of a resolution by the Council at a SCM on 4 November 2019;
and
c. consideration by the Council of allegations of misconduct levelled against
Mr Cain by Mr Downing including an SCM on 4 December 2019, 13 January
2020 and 11 March 2020.
[211] As I have noted previously, based on the evidence given, there appeared to be no legal
or procedural obligation on Councillor Allen to remove himself from considering and voting
on those matters. Councillor Allen gave evidence he did not believe himself to be the subject
of Mr Cain’s workplace bullying complaint until he received the draft application on
10 January 2020. Given the application was not filed with the Commission, he considered
that Mr Cain had decided not to proceed with the application. When it was observed that as
of 10 January 2020, Councillor Allen was aware of the complaint made against him regarding
bullying, and yet he had participated in the Council meeting of 13 January 2020,
Councillor Allen responded that he did not believe he had an impartiality conflict.
[212] Even if it were the case that Councillor Allen had an impartiality conflict, evidence
provided, which was not rebutted, was that Councillors who declare an impartiality interest
(conflict interest) are expected to consider and vote on that particular matter – provided that
they declare that interest. According to the evidence, if a Councillor is present in the Council
meeting, they have a duty to exercise a vote. In such circumstances the contention of unfair
behaviour is not made out.
Is there a risk of future bullying?
[213] In Ms SB,195 Hampton C provided the following analysis in relation to the ‘risk to
health and safety’ element in s.789FD as follows:
[44] The unreasonable behaviour must also create a risk to health and safety. Therefore there
must be a causal link between the behaviour and the risk to health and safety. Cases on
195 Ms SB [2014] FWC 2104, [44].
[2020] FWC 1914
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causation in other contexts suggest that the behaviour does not have to be the only cause of the
risk, provided that it was a substantial cause of the risk viewed in a common sense and
practical way. This would seem to be equally applicable here.
[214] 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.196 The ordinary meaning of ‘risk’ is the
exposure to the chance of injury or loss; a hazard or dangerous chance,197 however, the risk
must be real and not merely conceptual.198
[215] An investigation had been conducted into Mr Cain’s complaints outlined in his email
dated 23 October 2019 and letter of 24 October 2019, with a view to ensuring that Mr Cain
was provided with a safe workplace going forward. The investigation appears to have
concluded in February 2020, the Council reviewed the investigation report in March 2020,
and resolved to take steps to ensure Mr Cain’s safety. Mr Cain was informed of these steps in
correspondence of 12 March 2020.
[216] A comparison of the final orders sought by Mr Cain and the steps set out in the
Council’s resolution, revealed that the Council has already resolved to take a number of the
steps requested by Mr Cain. In addition, the Council had undertaken to implement a suite of
additional measures.
[217] On this basis, there was no evidence before the Commission that there is a risk to
Mr Cain’s safety in the workplace going forward. While the outcomes of the workplace
bullying investigation had not been implemented at the time of hearing, this was
understandable given the outstanding matter of the misconduct investigation on foot. As it
was, Mr Cain was suspended and had no access to IT systems. Therefore, his interactions
with Councillor Smith were minimal, if occurring at all. Furthermore, there was no evidence
before the Commission to suggest that the Council, having adopted the report and outcomes
concerning the workplace bullying investigation, would renege on its commitment to ensure
the outcomes were carried through.
[218] By way of observation only, Mr Cain had indicated his intent to make the first
application in early January 2020. A relatively unchanged version of the application was
ultimately filed in early April. Had Mr Cain been concerned about ‘continued bullying’, it
would, in my view, been reasonable to assume that he would not have waited three months to
file the application.
[219] It was submitted to the effect that the triumvirate of Elected Members, that is the
actors responsible for what was happening to Mr Cain, had reason to be predisposed against
him and those same actors were the ones who are making decisions concerning his
employment.
196 Thiess Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252, 78 NSWLR 94, [65]-[67]; Abigroup
Contractors Pty Ltd v Workcover Authority of New South Wales (2004) 135 IR 317, [58]; Ms SB [2014] FWC 2104;
Purcell v Farah and Mercy Education Ltd T/A St Aloysius College [2016] FWC 2308, [208].
197 Macquarie Dictionary Publishers, Macquarie Dictionary Online (at 20 April 2020) ‘risk’; Purcell v Farah and Mercy
Education Ltd T/A St Aloysius College [2016] FWC 2308, [208].
198 Re CG [2014] FWC 6988, [49]-[50]; Purcell v Farah and Mercy Education Ltd T/A St Aloysius College [2016] FWC
2308, [208].
[2020] FWC 1914
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[220] The evidence shows that Councillors Smith and Allen were opposed to the extension
of Mr Cain’s contract –their evidence in this respect was that they were dissatisfied regarding
the process undertaken concerning the contract extension. Further, while Councillor Smith
had sought to understand a ‘pay out’ figure if Mr Cain’s contract was brought to an end, the
context of the email discussion – again was referable to the process that had been undertaken
which resulted in the contract extension. The evidence of Councillors Smith and Allen on
these points was compelling. Direct evidence adduced and the oral testimony of both,
supports a finding, that it was the process which was of concern.
[221] The gravamen of Mr Cain’s case was that all persons named and involved in making
decisions about his employment, had a conflict of interest, were biased, or had an
apprehension of bias in matters concerning his bullying complaint. From Mr Cain’s point of
view, the bottom line was that he did not seek to oppose the Council determining outcomes of
misconduct at the SCM – but his contention was effectively that those accused of bullying
should not be the judges, as they might be tainted bias or potential conflict of interest. I do
not consider this to be an ongoing risk of future bullying.
[222] The circumstances before me, have not led me to a finding or conclusion that
Mr Downing, Mayor Howlett, or Councillor Allen acted unreasonably. Concerning
Councillor Smith, she had acted unreasonably repeatedly, but such behaviours, in my view,
had been addressed appropriately in the workplace bullying investigation outcomes. The
continuing participation of the three Elected Members and Mr Downing in Council meetings
did not represent a risk that Mr Cain will continue to be bullied at work. There is already in
place a procedural process for Council to follow which addresses circumstances of a conflict
of interest or impartiality in Council meetings.
[223] To restrain the Elected Members from voting in matters concerning Mr Cain, is in my
view not about addressing the risk of continued bullying, but is about precluding
democratically appointed Elected Members from complying with their obligation to vote on
certain Council matters in accordance with subordinate legislation. More on this point is
traversed at paragraphs [226] to [233].
[224] Therefore, Mr Cain has not made out the final requirement of s.789FF(1)(b)(ii) and his
application must therefore not succeed.
[225] For the sake of fulsomeness and notwithstanding my above conclusion, I have briefly
addressed other arguments pressed by the City and Mr Downing.
Are the orders sought misconceived?
[226] Counsel for Mr Downing and the City advanced that the only significant, additional
orders sought by Mr Cain, which were not addressed in Council’s resolution (see letter of
12 March 2020), are orders which seek to restrain Mayor Howlett, Councillor Smith and
Councillor Allen from being involved in any discussions, consideration or voting on
resolutions relating to Mr Cain’s bullying complaint and misconduct allegations in their role
as Elected Members of the Council, and of course the restraints sought regarding
Mr Downing. Having considered those orders, they do not appear to be directed towards the
prevention of relevant future unreasonable conduct – they target actual or perceived bias, or as
referred to in the language of the three Elected Members, ‘impartiality’.
[2020] FWC 1914
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[227] Section 789FF of the Act provides that if the Commission is satisfied that
ss.789FF(b)(i) and (ii) have been met, then it may make any order it considers appropriate.
While the use of the word ‘any’ appears to provide the Commission with authority to issue a
wide range of orders, the discretion regarding the type of order that may be issued is not, in
my view, unfettered. Clearly the order is to be directed towards the prevention of relevant
future unreasonable conduct and be informed by, but not necessarily limited to, the prior
unreasonable conduct as found.199 Further, the Commission must take into account any
procedure available to the worker to resolve grievances or disputes, or final or interim
outcomes arising out of an investigation into the matter, or procedures available to resolve the
grievance.
[228] In this matter, the Elected Members’ legal obligations in terms of considering and
voting on council resolutions are governed by the Local Government Act and the Local
Government (Rules of Conduct) Regulations 2007 (Conduct Rules). Counsel for Mr
Downing and the City pointed to regulation 11 of the Conduct Rules which deals with Elected
Members’ conduct in circumstances of a potential (non-financial) conflict of interest. An
interest is defined in Rule 11(1) as:
interest means an interest that could, or could reasonably be perceived to, adversely affect the
impartiality of the person having the interest and includes an interest arising from kinship,
friendship or membership of an association
[229] While the Conduct Rules inform that the council member who has an interest in any
matter to be discussed at a council meeting must disclose the nature of the interest, there is no
requirement that they are to be excluded because of that interest. Section 5.21 of the Local
Government Act sets out the requirements regarding voting. It states:
1) Each council member and each member of a committee who is present at a meeting of the
council or committee is entitled to one vote.
2) Subject to section 5.67, each council member and each member of a committee to which a
local government power or duty has been delegated who is present at a meeting of the council
or committee is to vote.
[230] Section 5.67 of the Local Government Act sits within Division 6 of Part 5 – Disclosure
of financial interest and gifts. In this case s.5.67 Local Government Act, is not relevant
because it is directed to a conflict of interest that pertains only to a financial interest or gift.
[231] The City of Cockburn Standing Orders Local Law – gazetted in the Western
Australian Government Gazette on 22 September 2016 outlines the process to be followed
concerning the ‘Declaration of Impartiality Interest’. It provides:
1) In this clause:
Interest under this clause means an interest of a personal nature which a member or
employee has in a matter which is not required to be disclosed under Part 19 or Part
20, but which a reasonable person knowing the facts might assume would influence
the consideration of that matter by the member or employee. (Examples are
applications for an approval consent or licence by a parent, sibling, adult child or
close friend of a member or employee).
199 Re George [2017] FWC 4349, [23].
[2020] FWC 1914
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2) If a member or employee attending a meeting of the Council has an interest under this
clause in any matter proposed to be considered at that meeting the member or
employee should disclose that interest at the meeting before the discussion of the
relevant matter that requires a decision to be made by Council.
3) A member expected to disclose an interest under this clause in a matter shall remain in
the chamber or room of the meeting while the matter is discussed and voted upon.
4) In applying the preceding clause, a member must bear in mind the obligation under
clause 5.21(2) of the Act to vote at meetings where the member is present.
5) The decision to disclose an interest under this clause is a decision to be made by the
member or employee and is not to be determined by resolution of the meeting.
[232] If it were the case that ss.789FF(b)(i) and (ii) were satisfied, I would still have found it
inappropriate for the Commission to make orders set out in proposed orders 7-9 in Annexure
B of the application. The Western Australian State government has sought to address issues
of conflict of interest and impartiality in its subordinate legislation. In circumstances of
impartiality, the Local Government Act (see s.5.21), obliges the council member to vote, and
there is no requirement that council members who have disclosed impartiality are to refrain
from considering agenda items.200 Were an order were issued in the terms sought at proposed
order 7 of Annexure B, it would conflict with the obligations placed upon the Elected
Members by the State legislature, and in addition would, in my view, address bias – actual or
perceived, not unreasonable repeated conduct (i.e. workplace bullying).
[233] If actual or potential bias of the Triumvirate was the problem, then the issue is one as
to whether Council (or the three Elected Members) is properly exercising its powers under its
enacting legislation. This, in my view, can only be determined by a Court of competent
jurisdiction. While the findings and conclusions reached during the course of writing this
decision negate a requirement to address this point at length, in my view, final orders 7 and 8,
set out in Annexure B, are beyond the jurisdiction of this Commission to grant.201
Is it Mr Cain’s intention to interfere with the disciplinary process?
[234] Counsel for Mr Downing and the City submitted that Mr Cain’s filing of the
application and request that the hearing be expedited, three months after first circulating the
application to potential parties – appeared not to be based upon there being an imminent risk
of bullying. Rather, the motivating force appeared to be the desire to have Mayor Howlett,
Councillor Allen and Councillor Smith removed from the group of Elected Members who
would consider and vote on the Council’s resolutions regarding the misconduct investigation
which was to be considered in the 17 April 2020 SCM. Counsel for Mr Cain correctly noted
that the risk does not have to be ‘imminent’.
[235] The Commission has stated that the anti-bullying jurisdiction should not be used as ‘a
means of hampering, or even stopping justified disciplinary action, implemented by an
employer, as a reasonable management response to an employee’s poor performance or
misconduct’.202 According to Counsel for Mr Downing and the City, based upon the evidence
and the submissions of Mr Cain, the application sought to do that which the Commission has
expressly deemed unacceptable.
200 Witness Statement of Donald Mervyn Green DM6-2
201 Re George, [33]-[40]. See also: Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140.
202 [2019] FWC 5278, [26].
[2020] FWC 1914
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[236] Counsel continued that such intention was revealed in Mr Cain’s submissions in which
he argued for interim orders being granted to prevent Mayor Howlett, and Councillors Allen
and Smith, from taking part in the discussions and consideration around the misconduct
investigation or voting on any resolution arising from the misconduct investigation. Mr Cain
had argued that the interim orders were necessary to ‘preserve the applicant’s cause of action’.
[237] As to the purpose of this application, and the events that led up to it being made, it is
observed that come 23 and 24 October 2019, Mr Cain had not taken issue with the behaviour
of Mayor Howlett, Mr Downing or Councillor Allen. His focus at that time was firmly fixed
on Councillor Smith’s behaviour. What followed thereafter were numerous objections by
Mr Cain about the procedures and processes adopted by the three Elected Members and
Mr Downing to address: (a) his complaint of workplace bullying; and (b) the allegations of
misconduct. At the heart of this matter, as evinced by the proposed orders sought, were
Mr Cain’s concerns about bias.
[238] The aforementioned objections were characterised as behaviours which were
unreasonable, unfair, unlawful, unauthorised, and undue. All of which, concerning the
conduct post 23 and 24 October 2019, I have found not to be the case. While a wordsmith
might by prolix turn of phrase attempt to dress certain conduct or behaviour (in this case
predominately alleged procedural deficits) with the cloak of bullying, it is timely to recall the
words of the Vice President in BOQ203 who said that the following conduct was such ‘which
one might expect to find in a course of repeated unreasonable behaviour that constituted
workplace bullying’:
…intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation,
terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional
abuse, belittling, bad faith, harassment, conspiracy to harm, ganging up, isolation,
freezing out, ostracism, innuendo, rumour mongering, disrespect, mobbing, mocking,
victim-blaming and discrimination.
[239] While the list of behaviours set out in BOQ are not exhaustive they are indicative of
the nature of behaviours which one might expect in these types of applications. There may
well be occasions where management action is found to be unreasonable or has not been
carried out in a reasonable manner. Hence giving rise to findings of behaviour such as bad
faith. However, I have found that not to be the case here, and I do not consider it desirous to
reflect on Mr Cain’s motives for making the application because they have no bearing on the
findings made or conclusion reached in this case.
203 [2015] FWC 774, [99].
[2020] FWC 1914
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DEPUTY PRESIDENT
Appearances:
T Caspersz of Counsel for the Applicant
H Millar of Counsel for the City of Cockburn and S Downing
L Howlett, named person
L Smith, named person
K Allen, named person
Hearing details:
2020.
Perth (by video):
April 15, 16.
Printed by authority of the Commonwealth Government Printer
PR718221
WORK MMISSION
[2020] FWC 1914
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Annexure A
Interim orders pursuant to ss. 595, 589 and 789FF of the Fair Work Act 2009
Pending determination of the within application, the Fair Work Commission as constituted by
… ORDERS THAT:
1. The first respondent (Stuart Downing) shall refrain from taking any further action in
relation to or being involved either directly or indirectly in the discussion or consideration
or making by any person, including without limitation the Council of the City as
constituted under the Local Government Act 1995 (WA) (the Council), of any
determination including any resolution by the Council about, concerning or in relation to
the bullying complaint and the misconduct allegations;
2. Without limiting the generality of order no. 1, the second, third and fourth respondents
(respectively, Mayor Howlett, Councillor Smith and Councillor Allen) shall refrain from
taking any further action in relation to or being involved either directly or indirectly in the
discussion or consideration or making by any person of any determination including any
resolution by the Council about, concerning or in relation to the bullying complaint and
the misconduct allegations;
3. Nothing in these orders shall be construed as preventing or inhibiting any action or
involvement by any officer of the City of Cockburn other than Stuart Downing and any
Elected Member of the Council of the City of Cockburn other than Mayor Howlett,
Councillor Smith and Councillor Allen from being involved either directly or indirectly in
the discussion or the consideration of or the making by any person of any determination
including any resolution by the Council about, concerning or in relation to the bullying
complaint and the misconduct allegations;
4. Nothing in these interim orders shall be construed as preventing or inhibiting any inquiry
or investigation into the bullying complaint and the misconduct allegations by the City of
Cockburn, the Minister appointed under the Local Government Act 1995 (WA), the
Department of Local Government, Sport and Cultural Industries established under that
Act, the Public Sector Commissioner established under the Public Sector Management
Act 1994 (WA) or any other body with jurisdiction in relation to such matters;
5. Unless the Commission orders otherwise, the parties shall keep confidential all documents
filed in this application and proceedings and shall use such documents for the purpose of
these proceedings only save as otherwise required by law or unless necessary to take
professional advice in relation thereto or for the purposes of and relating to any inquiry or
investigation referred to in the preceding order no. 4;
6. There be liberty to a party to apply to the Commission on 24 hours’ written notice to the
other parties.
For the purpose of these interim orders –
i. ‘The bullying complaint’ means the applicant’s complaint notified in an email
dated 23 October 2019 to the Elected Members of the City of Cockburn and a
letter dated 24 October 2019 to Mayor Howlett, as amplified in an interview
between the applicant and one Dr Sitlington on 5 December 2019;
ii. ‘The misconduct allegations’ means the allegations of misconduct levelled against
the applicant first notified to him in a letter dated 6 December 2019 from Stuart
Downing.
[2020] FWC 1914
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Annexure B
Orders sought by the applicant pursuant to s. 789FF of the Fair Work Act 2009
The Fair Work Commission as constituted by …
DECLARES AND ORDERS THAT:
1. The applicant was bullied at work by:
a. Stuart Downing;
b. further and alternatively, Mayor Howlett;
c. further and alternatively, Councillor Smith;
d. further and alternatively, Councillor Allen;
2. Within four weeks of the date of the Commission’s order, each of the respondents shall
file in the Commission a programme of training to be undertaken by each of them on and
in relation to the City of Cockburn’s Elected Member Code of Conduct or similar code of
conduct (the Elected Member Code of Conduct Training);
3. Without limiting the generality of order no. 2, each of the respondents shall attend the
Elected Member Code of Conduct Training;
4. Within four weeks of the date of the Commission’s order, each of the respondents shall
file in the Commission a programme of training to be undertaken by each of them on and
in relation to the City of Cockburn’s Bullying Policy for Staff (the Bullying Policy
Training);
5. Without limiting the generality of order no. 4, each of the respondents shall attend the
Bullying Training;
6. Stuart Downing shall refrain from taking any further action in relation to or being
involved either directly or indirectly in discussion or the consideration of or the making by
any person, including without limitation the Council, of any determination including any
resolution by the Council about, concerning or in relation to the bullying complaint and
the allegations of misconduct;
7. Mayor Howlett, Councillor Smith and Councillor Allen shall refrain from taking any
further action in relation to or being involved either directly or indirectly in the discussion
or the consideration of or the making by any person of any determination including any
resolution by the Council about, concerning or in relation to the bullying complaint and
the misconduct allegations;
8. Nothing in these orders shall be construed as preventing or inhibiting any action or
involvement by any officer of the City of Cockburn other than Stuart Downing and any
Elected member of the Council of the City of Cockburn other than Mayor Howlett,
Councillor Smith and Councillor Allen being involved either directly or indirectly in the
discussion or the consideration of or the making by any person of any determination
including any resolution by the Council about, concerning or in relation to the bullying
complaint and the misconduct allegations;
9. Nothing in these orders shall be construed as preventing or inhibiting any inquiry or
investigation into the bullying complaint and the misconduct allegations by the City of
Cockburn, the Minister appointed under the Local Government Act 1995 (WA), the
Department of Local Government, Sport and Cultural Industries established under that
Act, the Public Sector Commissioner established under the Public Sector Management
Act 1994 (WA) or any other body with jurisdiction in relation to such matters.
For the purpose of these orders –
[2020] FWC 1914
57
i. ‘The bullying complaint’ means the applicant’s complaint notified in an email dated 23
October 2019 to the Elected Members of the City of Cockburn and a letter dated 24 October
2019 to Mayor Howlett as amplified in an interview between the applicant and one Dr
Sitlington on 5 December 2019;
ii. ‘The misconduct allegations’ means the allegations of misconduct levelled against the
applicant first notified to him in a letter dated 6 December 2019 from Stuart Downing.
