1
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Hugo Meagher
(AB2024/611)
DEPUTY PRESIDENT DEAN CANBERRA, 23 DECEMBER 2024
Application for an FWC order to stop bullying – application dismissed.
[1] Mr Hugo Meagher made an application pursuant to s.789FC of the Fair Work Act 2009
for an order to stop bullying that he alleges has taken place within his workplace. Mr Meagher
is employed by the Commonwealth as represented by the Department of Employment and
Workplace Relations (the Department) as a graduate lawyer.
[2] The application named three female employees holding supervisory roles over Mr
Meagher (the Persons Named) as engaging in bullying behaviour towards him. The Persons
Named are his Supervisor, Manager and Director.
[3] At the hearing of this matter, Mr Meagher represented himself and Mr Davidson of the
Australian Government Solicitors appeared for the Department and the Persons Named. Mr
Meagher gave evidence on his own behalf. The Persons Named, who are all lawyers, gave
evidence on their own behalf and on behalf of the Department. The Persons Named were not
required for cross examination by Mr Meagher.
[4] I consider it unnecessary to name the Persons Named in this decision given my findings
about Mr Meagher’s allegations of bullying.
[5] For the reasons that follow, I find that Mr Meagher was not bullied at work, nor is he at
any ongoing risk of bullying, and so I will dismiss his application.
Relevant legislation
[6] Section 789FC of the Act sets out when a person can make an application to the
Commission for an order to stop bullying:
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.
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DECISION
AUSTRALIA FairWork Commission
[2024] FWC 3569
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(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.
[7] Section 789FD of the Act sets out the requirements for a person to have been bullied at
work:
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.
[8] Section 789FF of the Act sets out when the Commission may make an order to stop
bullying:
FWC may make orders to stop bullying
(1) If:
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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.
Observations and preliminary findings
[9] It is unfortunately necessary to make some observations about the conduct of Mr
Meagher in this matter before dealing with the application.
[10] Mr Meagher has been exceptionally difficult to deal with. Despite having completed a
law degree he was unable to follow the most basic of instructions to prepare a witness statement
that would form his evidence in chief in the proceedings. Instead, and despite numerous
attempts to explain what a witness statement is, both verbally and in writing, including
providing an example to him, Mr Meagher submitted a Statement of Claim. When subsequently
directed to provide a witness statement, he refused.
[11] His Statement of Claim provides inaccurate and misleading commentary about emails
between him and the Persons Named. The inaccuracies are obvious on a review of the emails
themselves compared with his description of same in his Statement of Claim.
[12] For example, Mr Meagher asserted that he was told by the Director that he was not
allowed to reply to emails from the First Assistant Secretary (FAS). This was in the context of
an email to all staff from the FAS regarding the completion of mandatory training. In cross
examination, Mr Meagher confirmed he was referring to an email from the Director which
included the following:
“Just based on what you’ve said, I personally wouldn’t email [name redacted] / a FAS
directly with that type of question and I suspect that was what [name redacted] was
getting at. There is nothing strictly prohibiting you from doing so, but I’d ordinarily
direct those type of procedural questions to a FAS’ EO or EA (to demonstrate that I
understand their priorities and business, and the fact that their EO/EA are likely able to
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answer my question). It’s about exercising your judgement as to the most appropriate
line of inquiry. [Name redacted] is lovely and responsive and I’m sure she had no
objections - but you may encounter FAS’ that don’t respond well to these types of
questions which may be better directed to an EO.”
[13] Having been taken to this email in cross examination, Mr Meagher continued to assert
that the email said he could not email a FAS directly.
[14] The tone of Mr Meagher’s numerous emails both to my Associate and to representatives
of the Department was in my view unprofessional and inappropriate.
[15] During the hearing, Mr Meagher was belligerent, rude, obstructive, refused to concede
points he clearly should have, and regularly refused to answer questions directly. Even after
many directions to him to answer the questions he was being asked, and after I raised with Mr
Meagher that he was being highly evasive during cross examination, he continued to do so.
[16] During the hearing, in reference to one or more of the Persons Named, he:
a. Said he didn’t care whether she is dead or alive1;
b. Referred to one as a moron who had no credibility2;
c. Said “what kind of moron sets that task” in reference to a request by his Supervisor
for a brief (1-2 page) file note about a High Court decision;3
d. Said “I should have been nastier” towards one of the Persons Named4; and
e. Said “I don’t give a shit about Ms [Name redacted]5”
[17] He also characterised the reasonable and appropriate questions asked of him during
cross examination as ‘fucking ridiculous’ and made a highly improper and baseless accusation
that Counsel for the Department was trying to mislead the Commission in relation to his cross
examination.6
[18] Mr Meagher scheduled a medical appointment in the middle of the hearing, which he
did not inform the Commission of until the day prior to the hearing.
[19] Mr Meagher was not a credible witness. To the extent there is any factual controversy
as between the evidence of Mr Meagher and the evidence of the Department’s witnesses, I
accept the evidence of the Department’s witnesses.
Allegations of bullying
[20] Mr Meagher began work on 5 February 2024 with the Department, having been
previously employed as a Legal Officer with the Attorney General’s Department.
First allegation
[21] Mr Meagher’s first allegation of bullying was essentially that he was required to attend
work at a certain time, and that in doing so the Department was in breach of the relevant
enterprise agreement. He said this was because he did not have a ‘formal’ agreement with the
Department as to when he would attend work, and his only obligation was to attend within the
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bandwidth hours. He also gave evidence of having an undiagnosed sleep disorder which he said
he advised the Department of, and that he may need additional flexibility as a result.
[22] In his first few weeks of employment, he was required to participate in various training
and induction type programs. He says that at certain times he was not given breaks between
training sessions which meant he might have had to engage in new content for 3-4 hours.
[23] He says he raised concerns about the ‘inflexible schedule’ which did not allow for proper
breaks. He says that on one occasion he requested a break between two 2-hour training sessions
due to fatigue and hunger, but this was declined.
[24] Mr Meagher complained that he was reprimanded for arriving late to scheduled
meetings on two occasions.
[25] He received an email on 23 February from his Supervisor which was as follows:
“Hi Hugo
I just wanted to schedule a time to see how you are settling in and discuss some of our
expectations for the role.
I hope to discuss the flexible working arrangements available, and how you feel you are
managing your work and outside work commitments.
I would also like to discuss use of time at work (inc. for personal reasons).
Look forward to catching up.
[Name redacted]”7
[26] Mr Meagher replied to this email indicating he was happy to ‘have a chat’ and asked
that if there was to be any constructive feedback given to him, that he be provided with an
outline of those matters so he could prepare with a view to resolving any differences in
observations or opinions.
[27] The response to Mr Meagher is set out below in full as it forms the basis of the first
allegation of bullying:
“Hi Hugo, of course and I appreciate you coming prepared.
I agree that every workplace is different, so I want to ensure our (and the department's)
expectations are clear from the beginning so we can support you to succeed. I think the
below expectations would be consistent across APS roles.
The feedback we will be discussing is that you have been late to quite a few meetings,
and appear to be having difficulty arriving at work or managing your calendar and
commitments to ensure that you are present for your first meeting. I was hoping to
discuss the best ways to keep up to date on emails and calendar appointments, and
manage your schedule.
I also want to discuss use of your time when at work. I have personally observed you
online shopping or conducting research (for example into real estate) during meetings,
and others have provided this feedback.
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I am also aware that you have been using your work email and work time to correspond
regarding personal disputes. This feedback has come from four different staff.
The department expects that devices and work time are primarily used for work
purposes, but will allow reasonable personal use of these devices in accordance with the
ICT policy. I am happy for staff to use the internet and work time for personal research
and correspondence here and there, and you will find that everyone does. However, I
expect the team to focus when in meetings and not use work-time for personal reasons
when they have work tasks outstanding. Given you haven't provided any work products
yet, I just want to make sure you understand that we expect you to prioritise work related
tasks while at work.
Mostly, I am concerned about your fatigue during training and the work day, particularly
from a wellbeing perspective. I saw you drifting off during out ISC meeting this week,
and have been informed that this occurred during another training session where [name
redacted] needed to rouse you. I have approved an outside work application, and now a
study leave application, so I just want to ensure there's nothing else I should be aware
of that is impacting your ability to perform at work.”8
[28] Mr Meagher alleges that this email was an instance of bullying because the overall tone
was accusatory and out of context and there was insufficient evidence or detail provided, and
that the Department was at serious risk of breaching s.13(8) of the Public Service Act 1999
(Cth).
[29] He also alleged that the Department victimised him because “they personally had
observed non-work conversation and activity take place by some of the ‘four’ employees that
amounted to comparable or more time in non-work activities than was alleged by the Defendant
to the Plaintiff. The feedback was biased and unfair and this deliberately targeted feedback
fostered subsequent mistrust”.
[30] Finally, Mr Meagher alleged that the tone and context of the email was “menacing and
out of context”. He said, “from the tone of the email, it appears to menace, threaten or embarrass
as the Plaintiff had not given consent and was not told that the Plaintiff was under video
surveillance for the purpose of performance management”. The reference to video surveillance
turned out to be a reference to Microsoft Teams meetings. He also asserted that participation in
a Microsoft Teams meeting was illegal video surveillance.
[31] This is clearly not a matter of bullying. There is nothing in the email in question that
could be considered menacing, threatening or in any way inappropriate. It was sent because Mr
Meagher had requested an indication of the issues to be discussed. It was in my view a
reasonable and appropriate response.
[32] Obviously, there is nothing unreasonable in expecting Mr Meagher to attend scheduled
meetings or training sessions on time, in circumstances where there are other people involved
in the training program or meetings. Nor is there anything unreasonable in setting clear
expectations about how he uses his time while at work or expressing concern about him falling
asleep during meetings.
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Second allegation
[33] The second allegation of bullying involved Mr Meagher corresponding with the First
Assistant Secretary of the Department by email on 8 March 2024, in which he replied to a
circular email which stated that “mandatory training requirements are now due in HUB and
there will be a prize for the branch who are first to reach an 80% completion rate”. Mr Meagher
emailed her to seek clarification as to whether only overdue or all mandatory training had to be
completed before this time. The First Assistant Secretary replied that “you only need to
complete overdue training” which he said was important to him to know from a work
prioritisation perspective.
[34] Mr Meagher had also joined an internal Department Network and offered to volunteer
for an event on 15 March 2024. He said he had been informed that volunteering could be
counted as part of his corporate contribution however this was a conversation he needed to have
with his supervisor, or otherwise HR could provide advice in relation to his entitlements under
the enterprise agreement.
[35] Mr Meagher then received an email from his Supervisor to the effect that it was at her
discretion as to whether the time was approved as work time or whether it would be taken as
flex time.
[36] Also related to this allegation is that Mr Meagher asserted he was told he was not
allowed to speak with HR or senior management to make complaints or seek clarification on
Department policies.
[37] Mr Meagher alleges that the Supervisor subsequently approached him without warning
or notice, and accused him of breaching sections 13(1), (3), (5) and (11) of the Public Service
Act by engaging in behaviour which undermined her as his supervisor. He said the Supervisor
told him that his conversations with the FAS and the Event Organiser constituted various
breaches of the APS Code of Conduct.
[38] Immediately after this interaction, Mr Meagher wrote to the Director to file an incident
report because the allegations, in his view, constituted a serious interpersonal conflict and could
have the potential to endanger health and safety if it occurred again. He also denied the
allegations, and said that by approaching him without notice, raising her voice and accusing
him of serious misconduct, this could have breached her performance obligations. Mr Meagher
also suggested that a ‘welfare check’ take place on the Supervisor.
[39] The Director, having spoken to the Supervisor, subsequently informed Mr Meagher that
his Supervisor acknowledged she was frustrated and provided some context as to why she was
feeling this way, which the Director considered would be useful for Mr Meagher to hear
directly, and suggested the three of them talk when she was back in the office a few days later.
[40] Mr Meagher says that in the meeting that followed on 15 March, the Director then
authorised the Supervisor to take sole control of the meeting and make accusations that Mr
Meagher had breached various provisions of the APS Code of Conduct. He also says that during
the ‘prolonged’ presentation, he continued to express ‘firm and assertive concern’ that his
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Supervisor’s conduct was utterly disrespectful, and that at no stage did the Director attempt to
manage the meeting professionally. Further, he complains that he was not provided any support
person or witness to the conversation.
[41] Mr Meagher also alleges that towards the conclusion of the meeting his Supervisor
accused him of harassing her in contravention of his employment obligations. Mr Meagher
contended that this accusation carries serious sanctions including termination and exclusion
from employment in the Australian Public Service and is a declarable incident before the court
when attempting to gain admission as a lawyer.
[42] The Director gave evidence of what occurred in the meeting on 15 March, which I prefer
over that of Mr Meagher. The evidence of the Director was that she had spoken with the
Supervisor who told her she had been frustrated because Mr Meagher was not following any
feedback that had been given to him, or progressing any tasks. There was no mention of any
breach of the APS Code of Conduct during this conversation. Her evidence also included that
Mr Meagher was told his Supervisor felt undermined when he continued to pursue a leave issue
and a training issue when she had already resolved the issues with him.
[43] I am satisfied that at no time was there any mention of any breach of the APS Code of
Conduct, or any suggestion of misconduct by Mr Meagher.
[44] On 17 March 2024 Mr Meagher wrote an email to his Supervisor and copied in the
Department Secretary advising of his intention to lodge a formal complaint against her if she
did not attempt to improve the culture of the work area.
[45] Mr Meagher alleges that the meeting of 15 March and the preceding events constituted
bullying, and that his Supervisor had been dishonest in her representations about her
management style and the culture of the team.
[46] In essence, the complaint is that he had not experienced any “friendly or supportive
behaviour. Rather, the Plaintiff was of the view that his colleagues had a ‘cagey’ disposition
and had met him with a culture of suspicion which had not dissipated since he commenced”.
[47] The evidence in relation to this allegation cannot objectively be construed as bullying.
There is nothing in any email to Mr Meagher that could reasonably be interpreted as the
Department alleging Mr Meagher had breached any provision in the Public Service Act or Code
of Conduct. The content of the meeting that took place does not disclose any conduct that could
properly be considered bullying.
[48] Further, there is no evidence to support Mr Meagher’s assertion that he was told he was
not allowed to speak with HR or senior management to make complaints or seek clarification
on Department policies.
Third allegation
[49] Mr Meagher says he commenced a period of personal leave on or around 18 March 2024
“due to insufficient support or direction from HR or [the Director] regarding his workplace
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relationship with [his Supervisor] since her formal complaint. He said he expressed severe
discomfort about being in the same physical space as her, noting the nature of the allegations.
[50] On or around 20 March he was informed that his complaint of 17 March had been
allocated to a Senior Case Manager to conduct an initial assessment.
[51] On or around 22 March Mr Meagher says he was informed by the Director that a new
supervisor was to be assigned to him.
[52] The new supervisor was the third Person Named, being the Manager.
[53] Mr Meagher said that there was a meeting held on 8 April between the Director, the
Manager, Mr Meagher and his support person to discuss his return to work, his Practical Legal
Training, new supervisory arrangements and general working arrangements with his new
Manager.
[54] On 17 April Mr Meagher submitted a piece of research work to the Manager. He said
the Manager’s comments included that “the document is not consistent with what we had
discussed on Thursday and does not reflect the suggested headings and format set out in my
detailed feedback to you on 8 April … I am happy to discuss further with you how to synthesise
this research into a memo that is useful and fit for purpose. The attached memo may be a helpful
example”.
[55] Mr Meagher alleges that this feedback was ‘condescending and stern’ and was not
warranted. He rejected the accusation that his work was not consistent with what had been
discussed.
[56] He then ‘reworked’ the work on 18 April and resubmitted it to the Manager.
[57] On 18 April the Manager wrote to Mr Meagher in the following terms:
“Hi Hugo
Your PLT professional placement is currently scheduled to be completed between
8 April 2024 and 3 May 2024.
During that time, you are required to complete:
• hour requirement: 105 hours of professional placement across 15 days, and
• task requirement: a variety of suitable tasks. The placement Task Checklist provides
a guide for suitable tasks, and recommends:
o at least eight times in total, and
o at least one task from each group heading.
In identifying suitable tasks I have also been guided by the work level standards
expected of an APS5 level paralegal role, and you and I have together agreed a task
list to allow you to undertake a variety of tasks for a variety of senior lawyers in the
department.
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I am concerned that you will not meet either the hour or the task requirement. None of
the tasks on your task list have been completed, and you have not reached out to any
of the senior government lawyers instructing you to manage due dates in light of your
absences. I do note the draft you send through on the [name redacted] memo this
morning, and I will send you through my feedback on that task separately, but it still
requires substantial work.
In fairness to you, I wanted to raise these concerns with you before the completion of
the PLT professional placement period, and give you the opportunity to bring a support
person to that discussion. Can you please advise if you are available for a discussion
next week, perhaps on Wednesday 24 April? I note that I intend to ask [name redacted]
to attend also, to take notes, and because she is ultimately responsible for signing off
on your completion of your PLT professional placement. If you have concerns or
questions about this proposed approach please let me know.”9
[58] Mr Meagher replied by email on the same day in the following terms
“Thanks for your feedback.
My apologies but I find the content of your email to me to be vague and superficial and
as such I am not in a position to comment as I am unable to determine the contents you
are raising.
If you would like to approached (sic) me with specific issues, I am happy to comment
on those. However, may I please suggest that instead of consistently calling me into
meetings, which is exasperating and stressful and hinders my performance - perhaps
you could overserve that I have always implemented your instructions and have been
progressing at a satisfactory standard based on the nature of the task I have been
assigned and the level of competency required, noting I am still in training and the nature
of the tasks I have only encountered one time. I argue that in each submission I have
presented you has been appropriate due to the nature of the task and the instructions
provided. I have never been in the situation where supervisors have been so critical of
work being completed for the FIRST time. I would understand if the work was continued
to be submitted on numerous occasions with the same errors after feedback but this
clearly is not this situation. I would like to at this stage actually work on my task list
instead of constantly needing to defend my actions when I am doing nothing wrong.
Please note I have needed time off from the department due to unsubstantiated
harassment allegations an I am happy to proceed with a formal complaint if my absence
has affected my performance away from work, however I believed taking a period of
absence was the right thing to do
If you would like a meeting, I will organise a representative from Leo Cussen, the Union
and / or HR to attend. I am of the view there has been a pattern of behaviour I have
witness here which has attempted to victimise me and degrade my work ethic and
competency. I completely reject this. For example, you have stressed that you need to
be work on an urgent task with [name redacted], which I will do and then send me a
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vague and unsubstantial email which further takes up my time and energy and detracts
from my ability to actually complete my role here.
Please note the PLT placement can be completed anytime until 6 months after course
completion in August so I can always request an extension if you have any concerns
about this.”10
[59] Mr Meagher then forwarded these emails to the Departments HR team with the
following message:
“Firstly, can you please pass on to my supervisory that if they are going to raise issues
such as the below, that they do it at a more appropriate time, such as late in the afternoon
when I have had the day to complete my work and then can digest the comments in my
own time. I think it too distracting and cumbersome to have to deal with subjective
arguments during work hours which has the potential to compound the issue and hinder
my performance.
Secondly, it is completely incorrect and unfair to assert that none of the tasks on my list
have been completed. [Name redacted] has often given me inadequate instructions and
only just recently this week provided me with the correct template. I should have been
using since being assigned a significant research memo. If I was provided with the
template and clear instructions from the initial setting of the task, the work could have
been completed much sooner and closer to her expectations.
Third, I have been on a period of personal leave based on being provided a lack of
guidance and support after an unsubstantiated harassment allegation was yielded at me.
This has affected my workflow and I have needed to push back deadlines due to my
absence from the office. I spoke to [name redacted] at length yesterday about how I was
going to proceed with my task management for the rest of the week and we agreed on a
way forward, I submitted a big piece of research work to her yester and have been
working on completing an urgent task with another AGL today, which is all to the
timeframe we agreed. I am not confused that she has changed her position and raised
this as an issue formally today, when there was nothing untoward discussed yesterday.
Fourth, I explained to [name redacted] that I didn't know how long each task was going
to take and was therefore hesitate in approaching SGLs immediately yesterday to
arrange extension as I still might have been able to meet to set deadlines of Friday
afternoon. I said I would play it by area and have a response by today as to whether any
consultation was needed. She has also raised this as an issue although I thought we had
a different agreement.
I have sought clarification for my PLT provider over this issue, as I need certainty
around my placement arrangements. I have been passing on my feedback to [name
redacted] and [name redacted] on practical assessment with my provider which has been
very encouraging and is completely at odds with the feedback I have received from
[name redacted]. Id required, my provider can organise an alternate workplace for me
to complete my training, but I will need to advise them urgently if this is the case. I will
be devastated if I did not pass the practical component as I have had to pay $12,000
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without any HECS etc. to complete it. I will quite unsupported by the Department at this
stage.
Happy to discuss further if needed.”11
[60] Mr Meagher alleges that his Manager’s email constituted bullying because he had
approval to complete his PLT by January 2025 before a request for an extension was needed,
and that his Manager had never checked in on him. He alleged she should have known that a
task list would have been overwhelming for a person in his situation, and this also constituted
bullying.
[61] Mr Meagher alleges he was advised by the Manager that a performance management
conversation had been arranged with the Director on 24 April to discuss failing him at his
Practical Legal Training (PLT).
[62] Mr Meagher says that after he made his complaint against his Supervisor, Manager and
Director to HR by email of 18 April, his Manager was subsequently removed as his PLT
supervisor.
[63] Mr Meagher also alleges he should not have been threatened with failing his PLT and it
was the insufficient guidance from the Department that made it extremely difficult for Mr
Meagher to complete his tasks in an efficient manner.
[64] The evidence of the Department was that at no stage was Mr Meagher threatened with
failure of his PLT. Rather, it raised a concern that he was not on track to meet his PLT
requirements within the timeframe that had been identified. I consider this to be an entirely
appropriate matter to raise with Mr Meagher well before any PLT deadline was reached.
[65] In terms of Mr Meagher’s complaint as to a lack of guidance, I am satisfied that the
guidance provided to him was more than adequate. This included instructions prior to the
commencement of a task and feedback during and after the task was completed.
[66] Again, I am not satisfied that the matters complained of by Mr Meagher constituted
bullying.
Overall consideration of allegations
[67] Having considered the allegations, individually and collectively, and in light of the
findings already made, I am satisfied that Mr Meagher has not been bullied at work within the
meaning of s.789FD. All action taken in relation to Mr Meagher was reasonable management
action and was undertaken reasonably.
[68] Every matter raised by Mr Meagher were examples of reasonable management action
undertaken in a reasonable manner. It is entirely appropriate for a manager or supervisor to give
early notice of performance or conduct related concerns to an employee, as was the case here.
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[69] There is nothing in the emails from the Persons Named to Mr Meagher which could
objectively be considered as anything other than appropriate, respectful and reasonable. There
was simply no bullying behaviour at all.
[70] The facts, objectively viewed, do not support the claims Mr Meagher has made.
[71] In making this finding, I have taken account of all of the material filed by the parties.
[72] In making this finding, I have also had regard to the decision of Commissioner Hampton
in Re SB12, and in particular the following paragraphs:
“[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.
…
[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.” (Citations omitted)
[73] In summary, the matters raised with Mr Meagher, involving his lateness to work and to
scheduled meetings, falling asleep in meetings, and delays in producing work, were all matters
that ought to have been raised with him. It is incumbent on any employer to set clear
[2024] FWC 3569
14
expectations of work performance, and this is what the Department appropriately and
professionally did. Clearly, Mr Meagher’s conduct in the workplace was unacceptable and
ought to have been dealt with.
Ongoing risk of bullying
[74] While I have found that no bullying has occurred, for completeness I find that there is
no risk of ongoing bullying as Mr Meagher moved to a different team prior to the hearing of
this application, and there is no prospect of any of the Persons Named supervising him in the
future.
Costs
[75] The Department foreshadowed an application for costs in relation to this application on
the basis that this application had no reasonable prospects of success. Costs will be considered
in the normal way if or when such application is made.
Conclusion
[76] Mr Meagher has not been bullied at work. Accordingly, I dismiss the application.
DEPUTY PRESIDENT
Appearances:
H Meagher on his own behalf.
J Davidson of Australian Government Solicitor for Commonwealth as represented by the
Department of Employment and Workplace Relations, and on behalf of the Persons Named.
Hearing details:
2024.
By video:
October 31.
Printed by authority of the Commonwealth Government Printer
PR782747
OF THE PAIR WORK THE FAIR ORK CO ADOTSALLA MMISSION THE SEALO
[2024] FWC 3569
15
1 Transcript PN121.
2 Transcript PN403 and PN413.
3 Ibid.
4 Transcript PN546.
5 Transcript PN583.
6 Transcript PN464 and PN468.
7 Attachment TM-01 to Exhibit 5.
8 Ibid.
9 Attachment GB-23 to Exhibit 6.
10 Attachment NM-13 to Exhibit 4.
11 Attachment NM-14 to Exhibit 4.
12 [2014] FWC 2104.
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwc2104.htm
