1
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Lev Shinkarsky
v
Yarra City Council and another
(AB2024/69)
DEPUTY PRESIDENT COLMAN MELBOURNE, 3 MAY 2024
Application for an order to stop bullying – application dismissed
[1] This decision concerns an application made by Lev Shinkarsky for an anti-bullying
order under s 789FC of the Fair Work Act 2009 (Act). Mr Shinkarsky contends that at various
times from September 2023 he was subjected to bullying by his employer, Yarra City Council,
and its infrastructure manager, Peter Moran. The Council and Mr Moran (respondents) deny
that Mr Shinkarsky was bullied and oppose the making of an order.
[2] A worker is ‘bullied at work’ if, while the worker is at work in a constitutionally covered
business, an individual or group of individuals ‘repeatedly behaves unreasonably towards the
worker’ and that behaviour ‘creates a risk to health and safety’ (s 789FD(1)). The Commission
is empowered to make an anti-bullying order if it is satisfied that the worker ‘has been bullied
at work’ (s 789FF(1)(b)(i)), and that there is also ‘a risk that the worker will continue to be
bullied at work’ (s 789FF(1)(b)(ii)).
[3] Mr Shinkarsky gave evidence about the circumstances which he believes amounted to
bullying. In brief summary, this evidence, which Mr Shinkarsky adopted in part from his
application and written submissions, and which he supplemented in oral evidence, was to the
following effect:
• On 18 September 2023, and again on 20 September, Mr Moran yelled at him in front
of other employees and accused him of making numerous mistakes without providing
him with any details or evidence. Mr Moran removed Mr Shinkarsky as the manager
for public lighting projects because he had allegedly failed to perform to the required
standard, but this was not true.
• Mr Moran later sent him an email stating that he was ‘incapable’ of doing the public
lighting project, when in fact he had been successfully doing this work for 25 years.
• Around this time, Mr Moran told him that he had taken too many days of personal
leave, but he had been absent for only 24 days in the past 12 months.
[2024] FWC 1158
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 1158
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• From late September 2023, he was required to come into the office five days a week,
supposedly for the purpose of allowing the Council to monitor his performance, while
all other employees were able to work three days a week in the office and two days
from home.
• On 20 November 2023, he made an internal anti-bullying complaint to the Council,
but the response he received did not satisfactorily address his concerns.
• On 31 January 2024, the Council’s general manager sent him an email stating that he
had spoken to Mr Moran and given him some advice but did not say what this was.
Mr Shinkarsky then lodged his anti-bullying application in the Commission.
• At a meeting on 21 March 2024, he was invited to consider taking up different roles
at the Council, but he declined because these were all at lower rates of pay.
• On 21 March 2024, he was told that the internal investigation into his bullying
complaint had found two of his allegations partly substantiated, but he was not told
which ones, or which parts. He was told that his previous supervisor, Ciaran Maher,
would be his manager.
• Mr Shinkarsky said that Mr Maher had also been involved in ‘intentional negative
actions’ towards him: on 31 January 2024, Mr Maher sent him an email claiming that
he had been absent during working hours; on 6 February 2024, Mr Maher sent him an
email containing an accusation about being away from his desk; and also on that day,
Mr Maher and Mr Moran told him off for having a non-work discussion with a
colleague.
• Mr Shinkarsky said that he was a good worker and that no concerns had been raised
about his performance by his immediate manager, Kisina Sofele. He believed Mr
Moran and Mr Maher had behaved unreasonably towards him.
• He stated that this conduct had left him feeling anxious whenever he needed to be in
the office, and that he had developed insomnia and high blood pressure and had started
taking medication. He has been on sick leave since 7 February 2024.
• Mr Shinkarsky said that he felt that the Council had him under surveillance and that
its attitude to him was affecting his health. He said that he did not believe that the
Council would provide him with support and assistance if he returned to work.
[4] Mr Shinkarsky submitted two brief witness statements from unidentified persons who
spoke about Mr Moran’s interaction with Mr Shinkarsky on 18 and 20 September 2023. I
decline to have regard to these documents because they contain anonymous hearsay. The
Commission is not bound by the rules of evidence but generally applies them as they reflect
principles of fairness and probative value. It is not safe or fair for the tribunal to rely on an
unattributed hearsay statement.
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[5] Monique Bateman, the Council’s manager of people and culture, gave evidence that the
Council did not consider that Mr Shinkarsky had been subjected to bullying. Her evidence was
to the following effect:
• Mr Shinkarsky’s regular supervisor, Mr Maher, had been on extended leave in 2023,
and his temporary supervisor, Mr Sofele, had been struggling. Mr Moran, who is Mr
Sofele’s manager, had been assisting him with some of his duties, including in relation
to the management of Mr Shinkarsky.
• The Council had required Mr Shinkarsky to attend the office 5 days a week as a means
of managing his performance and also to provide him with appropriate support.
• The Council’s investigation of Mr Shinkarsky’s internal complaint had found that two
of the nine allegations he had raised were partly substantiated, namely that Mr Moran
had raised his voice at Mr Shinkarsky on 18 and 20 September 2023. However, it
found that Mr Moran had not yelled at him. Action was taken in the form of
counselling. Mr Moran had expressed remorse. While the conduct was not acceptable,
it did not amount to bullying.
• Ms Bateman and a colleague met with Mr Shinkarsky on 21 March 2024 and advised
him that two of his allegations had been found to be substantiated in part. They also
told him that the Council’s requirement that he work five days a week in the office
had been reviewed and would now cease. He would have the same working from home
arrangements as other employees. The requirement that he attend the office 5 days a
week had been reasonable in light of the Council’s concern about his performance.
• At the meeting on 21 March 2024, Ms Bateman asked Mr Shinkarsky for permission
to contact his doctor in order to seek information on his medical condition and his
return to work, but he declined to give his permission.
• The Council believed that there was a reasonable basis for its concerns about Mr
Shinkarsky’s performance and that it and Mr Moran had taken reasonable
management action to address these concerns.
• The Council continued to seek his permission to contact his doctor to obtain
information on what support he might require in order to return to work.
• The Council wants Mr Shinkarsky to return to work and perform to the best of his
ability. It does not want him to feel like he is looking over his shoulder.
[6] Mr Moran gave evidence to the following effect:
• He had various interactions with Mr Shinkarsky in 2023 while helping Mr Sofele deal
with Mr Shinkarsky’s performance issues. He had known Mr Shinkarsky for some
years and they had previously got on well, but they did not have regular contact.
• On 18 September 2023, he asked Mr Shinkarsky why he had still not returned a work
phone that had been recalled by the Council, and Mr Shinkarsky requested yet another
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extension, which he granted. Mr Moran was frustrated with Mr Shinkarsky’s failure
to return the phone. He acknowledged that during the conversation he raised his voice,
but not to the point of yelling.
• On 20 September 2023, he had a meeting with Mr Shinkarsky to address concerns
about his performance but Mr Shinkarsky kept interrupting. Mr Moran raised his voice
slightly to cut across these interruptions, but he did not yell.
• Mr Moran said that he should not have raised his voice and that he apologised for
doing so. He had been a manager at the Council for 11 years and had never previously
been the subject of any complaints. He also noted that he was unlikely to have regular
contact with Mr Shinkarsky now that Mr Maher had returned and was again Mr
Shinkarsky’s supervisor.
[7] I make the following findings. First, I accept Mr Moran’s evidence that he raised his
voice on 18 and 20 September 2023, but not to the point of yelling. The difference is potentially
a fine one, and as Mr Shinkarsky said, even with an instrument recording, there could be
disagreement about when one crosses the line. I also find that Mr Moran is sincere in his regret
about having raised his voice on those days. I note that Mr Moran has been employed at the
Council for 11 years and that he has not been the subject of any other complaint, either prior to
September 2023 or since. It is understandable that Mr Shinkarsky might be upset by Mr Moran’s
raised voice. Raised voices are to be avoided in the workplace but rare deviations should not be
judged too harshly.
[8] Secondly, I find that the Council took Mr Shinkarsky’s complaint seriously. It
investigated the matter and reach a reasonable conclusion. In my opinion the Council should
have told Mr Shinkarsky which allegations had been upheld in part and why. This might have
helped him to put the matter behind him. Its failure to do so however was not unreasonable
conduct that created a risk to health and safety.
[9] Thirdly, even if the two instances of the raised voice amounted to repeated unreasonable
conduct, I do not consider that they amounted to bullying because I am not persuaded that they
caused a risk to health and safety. The fact that Mr Shinkarsky says that he is unwell and that
he believes that this and other conduct has adversely affected his health is not sufficient.
Generally there must be objective evidence that demonstrates the existence of a particular risk
to health and safety, as well as evidence to sustain a conclusion that there is a causative link
between the impugned conduct and that risk, rather than some other cause for the risk. Further
and in any event, I find that it is very unlikely that there will be further episodes of a raised
voice being directed at Mr Shinkarsky, firstly because Mr Moran genuinely regrets raising his
voice and in my view will not raise his voice again, and secondly because Mr Moran and Mr
Shinkarsky will have little contact now that Mr Maher has returned to work and is managing
Mr Shinkarsky, and Mr Moran sits two levels of management above him.
[10] Fourthly, it was not unreasonable of Mr Moran to say that he believed Mr Shinkarsky
was incapable of undertaking the public lighting project. What he meant by this was that he
believed Mr Shinkarsky was presently incapable of doing this, not that he was intrinsically
incapable of it. Mr Moran noted in his evidence that Mr Shinkarsky was a capable worker. In
any event, it is not unreasonable for a manager to express a sincerely held opinion about a
[2024] FWC 1158
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worker’s performance or capacity. That is core business for a person whose job involves
managing people.
[11] Fifthly, I find that the Council had concerns about Mr Shinkarsky’s performance and
that this was the reason that he was required to attend the office five days a week. This was a
reasonable requirement. It is irrelevant in these proceedings whether Mr Shinkarsky’s
performance was poor or good. The Council’s concerns were genuinely held.
[12] Sixthly, based on Mr Shinkarsky’s own evidence, I am not persuaded that his current
supervisor, Mr Maher, acted unreasonably towards him. The three examples cited by Mr
Shinkarsky are ordinary encounters between a manager and a worker concerning conduct and
performance. There is no indication of anything inappropriate or unreasonable on Mr Maher’s
part. Mr Maher’s email to Mr Shinkarsky of 31 January 2024 was attached to Mr Shinkarsky’s
submissions. It politely asked Mr Shinkarsky to let him know what work he had done that
morning, and noted that, from Mr Maher’s observations, Mr Shinkarsky had been away from
his desk for most of the time despite having no meetings in his calendar. Mr Maher also said
that he had seen Mr Shinkarsky having several conversations and phone calls and asked whether
these were related to work. Mr Maher’s email of 6 February 2024 asked Mr Shinkarsky where
he had been between 11.20 and 12.40 that morning, as he had been absent yet had no meetings
in his calendar. These are perfectly reasonable questions for Mr Maher to have put to Mr
Shinkarsky. The tone of the email messages is polite and professional. As to Mr Shinkarsky’s
account of his interaction with Mr Moran and Mr Maher on 6 February 2024, I find this too to
be a routine matter not involving unreasonable behaviour on their part.
[13] Finally, I accept Ms Bateman’s statement that the Council wants Mr Shinkarsky to
return to work and that it does not want Mr Shinkarsky to feel like he is looking over his
shoulder. I am confident that the Council will bear this in mind when he returns to work. Equally
however the Council needs to be able to address its concerns about Mr Shinkarsky performance.
I also consider that Mr Shinkarsky should allow the Council to seek further information from
his doctor about how it can facilitate his return to work.
[14] Mr Shinkarsky has a different perception about many of these matters. He genuinely
believes that he has been subjected to bullying and that there is a risk of this recurring. But the
Commission must make an objective assessment of the evidence and make findings based on
the balance of probabilities. I am not persuaded that Mr Shinkarsky was bullied at work, or that
there is a risk that he will be bullied at work in the future. The jurisdictional requirement in s
789FF(1)(b)(ii) has not been established. The application is dismissed.
DEPUTY PRESIDENT
Appearances:
L. Shinkarsky for himself
WORK COMMISSION THE SEAL OF THE F
[2024] FWC 1158
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M. Bateman for Yarra City Council
Hearing details:
2024
Melbourne
1 May
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PR774497
