[2014] FWC 2104

FAIR WORK COMMISSION

DECISION

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

Ms SB
(AB2014/1035)

COMMISSIONER HAMPTON

ADELAIDE, 12 MAY 2014

Application for an FWC order to stop bullying - Manager alleging that employees supervised were bullying as a result of them making bullying allegations against her and other unreasonable conduct - alleged lack of management support - whether individuals repeatedly behaving unreasonably so as to create a risk to health and safety - whether application taken simply as a response to bullying allegations being made against applicant - role of external investigation discussed - evidence assessed - some conduct found bordering on unreasonable but not sufficient to meet the statutory definition - no basis to make an order - application dismissed.

1. Introduction and background

[1] Ms SB (the applicant) has made an application for an order to stop bullying under s.789FD of the Fair Work Act 2009 (the FW Act). The application alleges bullying conduct by another employee, Ms CC, and others who are or were in her workplace. The workplace concerned is conducted by her employer (the employer).

[2] The application was subject to a hearing, which was conducted in private as permitted by s.593(3)(a) of the FW Act. Given the nature of the matters considered in this application, the fact that it relates to ongoing employment relationships and my findings, I have also “anonymised” the names of the parties and individuals in this decision. 1

[3] The applicant represented herself in this matter. The employer and CC were represented by an employee of a Registered Employer Organisation. 2 Given these circumstances, I provided appropriate assistance and latitude in the presentation of the applicant’s case; particularly to ensure that there was a common understanding of the issues in dispute and to ensure that, as far as possible, the disputed matters were raised with relevant witnesses.3 I also took steps during the examination of witnesses to inform myself about relevant matters. I must however determine the application based upon evidence that is before the Commission.

[4] I also note that after the hearing of this matter, all parties sought that the decision be deferred to permit further private discussions to take place. These proceeded before another Member of the Commission. The parties in due course requested that I make a determination of this application.

[5] The applicant commenced employment with the employer as a Delivery Support Team Leader in mid June 2013 and was in effect the manager of a team of Delivery Support Officers (DSOs) who were based at one of the two operational locations of the employer; namely location C and location B.

[6] CC, and the other employee directly cited in the application as having behaved unreasonably, are or were DSOs in the team reporting to the applicant.

[7] One of the former DSOs, Ms NP, made a bullying complaint against the applicant in August 2013. An investigation by the employer found the complaint to be unsubstantiated. In due course, NP was transferred to the other location and has since left employment with the employer.

[8] CC has denied the allegations of unreasonable conduct and in fact made bullying allegations against the applicant immediately prior to the lodgement of this application. The competing allegations were investigated on behalf of the employer in the immediate lead up to the hearing of this matter. The investigation apparently found that the allegations against the applicant were justified in part, whereas the complaints by the applicant were not apparently substantiated. I will return to the impact of those conclusions upon this matter.

[9] The applicant seeks orders from the Commission directed at stopping the alleged conduct by CC, compliance by the employer and others with the workplace bullying policies operating at the workplace, and the monitoring of workplace behaviour by the employer.

[10] During the course of this matter, the applicant raised concerns about the actions or non-actions of her immediate manager (DD) and the conduct of the human resources staff of the employer (HR). Although not directly cited in the application as individuals whose conduct was relied upon as bullying behaviour, their alleged conduct set some of the context for the applicant’s concerns.

[11] The employer has opposed the application on a number of grounds including the contention that there was an absence of repeated unreasonable conduct and that any conduct by itself was reasonable management action taken in a reasonable manner.

[12] CC was served with the application and provided with an opportunity to be heard in the matter. She gave evidence, in effect, as part of the employer’s case.

2. The application

[13] Section 789FC of the FW Act provides as follows:

“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.

(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.”

[14] There is no contest that the applicant reasonably believes that she has been bullied at work 4 or that she is a worker as defined.

3. The cases presented

3.1 The applicant

[15] The applicant relies either directly or indirectly upon the following elements of alleged unreasonable conduct: 5

● the making (and receipt by management) of two separate complaints of bullying against her from NP and CC;
● the acceptance of those complaints for investigation by the employer;
● that following the favourable finding in relation to the complaint from NP, the employer took no adequate action to prevent similar inappropriate conduct (ie. further complaint) from being made again;
● being the target of ongoing malicious rumours in the workplace without receiving support from the employer;
● being harassed and badgered on a daily basis by CC;
● CC documenting the applicant’s conduct; and
● being humiliated as a consequence of rumours and gossip because the employer did not notify employees as to the outcome of the complaints.

[16] The applicant gave evidence in support of her application. She also relied upon evidence from the following who were, or had been, DSOs from the group managed by the applicant: 6

● SB - Operations Administration Officer who is based at location C;
● CM - who is based at location C having previously worked at the other location;
● HW - who is based at the location B office but attended meetings at the location C office; and
● LG - who is based at the location B office but attended meetings at the location C office.

[17] The applicant contends that NP, CC and some others were not “on board” with the establishment of the Delivery Support Team and this led to a difficult environment and a culture where the bullying of her took place.

[18] The applicant accepts that management has in most circumstances a responsibility to investigate bullying allegations. However, she contends that the allegations made by CC were unfounded, part of a campaign to bully her as the Manager, and undertaken in concert with NP. In that context, the applicant contends that management should not have given the complaints any credence at all.

[19] Amongst other matters, the applicant further contends that CC and NP and others were spreading rumours in the workplace about her and that she was harassed and badgered on a daily basis by CC. This also included the contention that CC was taking notes of her conversations with the applicant.

[20] The applicant also relied upon an alleged failure of the employer to properly investigate false rumours about an alleged incident associated with a social function and to notify others that it lacked any foundation.

[21] In terms of the investigation of her own allegations against CC, the applicant does not rely upon this as an example of bullying conduct in its own right. She does however, have concerns about how the investigation was conducted, disputes its outcome and relies upon it as an indication that she is at risk of future bullying. In addition, the applicant considers that she did not have the opportunity to put forward her complaints when she first sought to discuss the matter with HR.

[22] Generally, the applicant contends that unless appropriate action is now taken, she will continue to be bullied at work by CC.

3.2 The employer and CC

[23] The employer opposed the application on a number of grounds including:

● CC and the employer had not behaved unreasonably towards the applicant;
● There was no evidence of repeated unreasonable behaviour;
● There was no evidence of any risks to the applicant’s health and safety;
● There was no evidence of a future risk of unreasonable behaviour; and
● There was no relevant behaviour to which any order might apply.

[24] The employer relied upon evidence from the following:

● DD - Finance and Commercial Manager to whom the applicant reports;
● MS - Human Resources Manager who had overall responsibility for the investigations conducted in relation to the matters associated with this application;
● CJ - Industrial Relations Adviser who conducted the initial investigation into the allegations made by CC, arranged for an external investigation in relation to the counter claims of bullying after the making of this application, and had other dealings with the parties in this matter; and
● CC - DSO and the individual named in the application.

[25] The report of the investigation conducted on behalf of the employer, subsequent to the lodgement of this application, was not provided to the Commission. The employer relied upon legal professional privilege on the basis that it had been conducted by a legal firm in direct contemplation of these proceedings. When challenged by the Commission about apparent reliance upon the outcomes given that position, the employer confirmed that it was not seeking to rely upon the actual outcomes for present purposes. Rather, it contended that sufficient information about the scope and nature of the investigation was known from other witnesses and that this was sufficient to demonstrate how it was conducted.

[26] As outlined earlier, the applicant did not rely upon the post-application investigation as evidence of bullying conduct in its own right, but did so as support for her proposition that there was a risk of ongoing bullying conduct; principally on the basis that no action was being proposed in relation to CC (and others). I also note that potential disciplinary action involving the applicant has been signalled by the employer.

[27] The employer contends that it was both reasonable and required for it to investigate the complaints by NP and CC. It did so following appropriate practices, which included engaging an external resource in the latter investigation.

[28] The employer and CC reject any notion of a conspiracy between CC and NP and contend that the commonality of some of the complaints was not unusual in the circumstances and highlight that many of the complaints by CC related to events after NP had left the workplace.

[29] The employer also contends that the applicant did not raise any concerns about alleged bullying prior to the bullying complaint being made by CC and that the applicant did not in fact consider herself to have been bullied prior to that event. Further, it argues that there was no real evidence of unreasonable conduct upon which the application could be based.

[30] In terms of the approach to definition of bullying conduct in s.789FD, the employer contends that the concept of an individual(s) “repeatedly behaving unreasonably” required that the unreasonable conduct must have occurred more than twice. 7

3.4 Observations on the witness evidence

[31] I found each of the witnesses generally gave evidence in an honest fashion, albeit that many of the positions reflected in those statements were based upon second-hand information, contained generalities rather than details, and involved potentially inflated notions. It was also evident to me that the statements of many of the witnesses were somewhat subjective and influenced by their perspectives of the people involved. These latter observations apply in particular to the applicant, CC and some of the DSOs.

[32] I also note that one of the witnesses for the applicant (CM) was unwilling to provide details of the incidents apparently summarised in her statement. This is perhaps understandable given the ongoing working and reporting relationships, however it did mean that little weight could be given to that evidence on the critical issues.

[33] Both the applicant and CC sought to rely upon statements that were apparently made by persons who were either unwilling or unable to attend to give evidence. I did not admit those statements into evidence and have given them no weight given the potentially prejudicial import of the statements and the inability to test the veracity of the evidence.

4. What constitutes bullying behaviour under the Act?

[34] Section 789FD of the FW Act provides as follows:

“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.”

[35] There is no contest that the employer is conducting a business or undertaking within the meaning of the Work Health and Safety Act 2011 (WHS Act) or that it is a constitutionally-covered business. It is also accepted by all parties in this case that the alleged conduct, if it occurred, took place whilst the applicant was at work.

[36] As a result, the issues in dispute in this case are whether an individual or group of individuals have repeatedly behaved unreasonably towards the applicant and whether any such behaviour has created a risk to health and safety. Depending upon the nature of those findings, in considering whether there has been repeated unreasonable behaviour, I also need to consider whether any of the conduct was reasonable management action taken in a reasonable manner.

[37] As a Full Bench 8 recently stated, ascertaining the meaning of the provisions of the Act necessarily begins with the ordinary and grammatical meaning of the words used.9 The words must be read in context by reference to the language of the Act as a whole and to the legislative purpose.10 Section 578(a) of the FW Act also directs attention to the objects of the FW Act and s.15AA of the Acts Interpretation Act 1901 requires that a construction that would promote the purpose or object of the FW Act is to be preferred to one that would not promote that purpose or object. The purpose or object of the FW Act is to be taken into account even if the meaning of a provision is clear. When the purpose or object is brought into account an alternative interpretation may become apparent. If one interpretation does not promote the object or purpose of the FW Act, and another does, the latter interpretation is to be preferred. Section 15AA requires the Commission to construe the FW Act, not to rewrite it, in the light of its purpose.11

[38] Further, Mason J affirmed in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd: 12

“Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasise the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise.” 13

[39] There are no specific objects applicable only to Part 6-4B of the Act. There are however, objects in s.3 of the Act that should be taken into account.

[40] The Explanatory Memorandum 14 relevantly stated as follows:

“New section 789FD – When is a worker bullied at work?

107. New subsection 789FD(1) provides that a worker is bullied at work if, while the worker is engaged by a constitutionally-covered business, another individual, or group of individuals, repeatedly behaves unreasonably towards the worker, and that behaviour creates a risk to health and safety.

108. This definition reflects the definition of workplace bullying that was recommended in the Workplace Bullying ―We just want it to stop report. The Committee considered the existing definitions used by State, Territory and federal jurisdictions and expert evidence and concluded that there were three criteria that were most helpful in defining bullying behaviour – the behaviour has to be repeated, unreasonable and cause a risk to health and safety.

109. The Committee went on to note that ‘repeated behaviour’ refers to the persistent nature of the behaviour and can refer to a range of behaviours over time and that ‘unreasonable behaviour’ is behaviour that a reasonable person, having regard to the circumstances may see as unreasonable (in other words it is an objective test). This would include (but is not limited to) behaviour that is victimising, humiliating, intimidating or threatening.

110. New subsection 789FD(1) covers bullying behaviours carried out by an individual or a group of two or more individuals.

111. The Committee also found that balanced against this definition is the need for managers to be able to manage their staff. New subsection 789FD(2) is included to clarify that reasonable management action when carried out in a reasonable manner will not result in a person being ‘bullied at work’.

112. Persons conducting a business or undertaking have rights and obligations to take appropriate management action and make appropriate management decisions. They need to be able to make necessary decisions to respond to poor performance or if necessary take disciplinary action and also effectively direct and control the way work is carried out. For example, it is reasonable for employers to allocate work and for managers and supervisors to give fair and constructive feedback on a worker’s performance. These actions are not considered to be bullying if they are carried out in a reasonable manner that takes into account the circumstances of the case and do not leave the individual feeling (for example) victimised or humiliated.” 15

[41] Having regard to the approach urged by the authorities, the concept of individuals ‘repeatedly behaving’ unreasonably implies the existence of persistent unreasonable behaviour but might refer to a range of behaviours over time. There is no specific number of incidents required for the behaviour to represent ‘repeatedly’ behaving unreasonably (provided there is more than one occurrence), nor does it appear that the same specific behaviour has to be repeated. What is required is repeated unreasonable behaviour by the individual or individuals towards the applicant worker or a group of workers to which the applicant belongs.

[42] An applicant may rely upon conduct that took place prior to the commencement date of the new provisions, 16 to demonstrate bullying conduct.17

[43] ‘Unreasonable behaviour’ should be considered to be behaviour that a reasonable person, having regard to the circumstances, may consider to be unreasonable. That is, the assessment of the behaviour is an objective test having regard to all the relevant circumstances applying at the time.

[44] The unreasonable behaviour must also create a risk to health and safety. Therefore there must be a causal link between the behaviour and the risk to health and safety. Cases on causation in other contexts suggest that the behaviour does not have to be the only cause of the risk, provided that it was a substantial cause of the risk viewed in a common sense and practical way. 18 This would seem to be equally applicable here.

[45] A risk to health and safety means the possibility of danger to health and safety, and is not confined to actual danger to health and safety. 19 The ordinary meaning of ‘risk’ is exposure to the chance of injury or loss.20 In the sense used in this provision, the risk must also be real and not simply conceptual.

[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 21 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. 22

[50] The specific ‘attributes and circumstances’ of the situation including the emotional state and psychological health of the worker involved may also be relevant. 23

[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’. 24 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’; 25
● 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. 26

[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. 27

[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.

5. The general context for the alleged conduct of CC and others

[55] I will deal with the specific grounds principally relied upon by the applicant shortly, however it is appropriate to set the context for those matters based upon the evidence before the Commission.

[56] As a result of a business restructure in March 2013, the DSOs roles and functions were consolidated into the Delivery Support Team. The team was based in two locations and although there was not a great deal of employee transfer between the locations, they all reported to the one manager and performed similar roles. The team would meet at one of the locations on a reasonably regular basis.

[57] The applicant was appointed in June 2013 to manage the team. The appointment was on the basis of a six month “probationary period”. One of the challenges for the applicant was to manage a team which comprised employees who had been drawn from other work groups and it is likely that some of the employees did not initially embrace that change.

[58] There are differing views about the management style of the applicant from within the Delivery Support Team and it is likely that NP and CC are amongst a group who do (or did) not feel comfortable about the applicant or her approach to the relatively new team. Based upon the evidence before the Commission, these are largely matters of style and manner.

[59] There is another group amongst the DSOs who are very supportive of the applicant as their manager.

[60] NP made a bullying complaint against the applicant in August 2013. On 15 August 2013, NP spoke inappropriately to the applicant first thing that morning. This exchange occurred immediately after NP had lodged the complaint against the applicant, but before management had informed the applicant of that event.

[61] Following an investigation by the employer of NP’s complaint, these allegations were found to be unsubstantiated. I note that this “finding” does not of itself mean that the allegations were false or vexatious. Rather, the employer’s HR did not in its view consider that the alleged conduct represented bullying conduct.

[62] In due course, NP was transferred to the other location and has since left employment with the employer. This transfer, although not intended as such, was seen by some of the DSOs who supported the applicant as a reward for NP.

[63] After the complaint by NP had been investigated, there were some discussions with the applicant about management support and a letter about this issue was apparently provided by management. The support proposed involved access to the employer’s Employee Assistance Program (EAP), mentoring and management training.

[64] Of the two locations at which the DSOs were based, the issues predominately involved one site; location C. At location C, the applicant’s desk was located as part of an open plan environment with the DSOs and DD, the applicant’s manager, was also in relative close proximity. Indeed, after NP was moved, the applicant proposed to move closer to the work team and this was discussed with DD. This was ultimately reversed when DD advised the applicant that this was not supported by him.

[65] I find that the applicant’s relationship with DD was generally open and constructive and the applicant had the opportunity to discuss concerns about CC, and matters more generally, with her Manager from time to time. Although the applicant raised concerns about certain aspects of CC’s performance, the issues now relied upon as bullying conduct were not discussed. The fact that the applicant was on “probation” for most of the time leading up to the making of this application is a factor, but in my view is not a full explanation for not doing so.

[66] The concerns about CC that were discussed with DD arose in part from the applicant’s perception of CC as being a fragile and sensitive person. 28

[67] I note also that CC had raised some concerns about the alleged conduct of the applicant with DD and these were not discussed with the applicant prior to the immediate events leading to this application. These include CC’s concerns about the applicant moving her desk closer the work group, and to her in particular. CC did however request that these concerns remain confidential and not be disclosed to the applicant.

[68] On 6 January 2014, in the course of a discussion with CC, the applicant became aware that CC was apparently taking notes of the conversation. It is evident that the applicant became concerned with these events and left the immediate workplace and located herself to the other work site.

[69] On 7 January 2014, CC made a complaint of bullying against the applicant to HR.

[70] Without knowing that CC had made a bullying complaint, the applicant sought to have a discussion with HR about CC. At the outset of those discussions, HR advised the applicant that CC had formally lodged a complaint of bullying against her. The applicant did not then raise her own bullying allegations with HR but subsequently considered her position and lodged this application.

[71] I note that CC has been absent from work for long periods after making the bullying complaint against the applicant. CC has been diagnosed with a range of physical and psychological symptoms consistent with high distress arising from the workplace.

[72] The applicant has also been subject to a diagnosed medical condition related to these events and is currently subject to a return to work arrangement as part of an accepted workers compensation claim. At the time of the hearing, this involved working from home three days per week however the arrangements involve a graduated return to the workplace depending upon progress.

[73] Interim reporting arrangements concerning the Delivery Support Team have been put in place as a result of the applicant’s absence from the workplace.

[74] The evidence reveals that the applicant is considered to be a capable and competent worker whose management experience has been valued by the employer.

6. Was the applicant bullied at work?

[75] An overall view of the behaviour and the circumstances is required, however it is convenient to start with a consideration of the key elements relied upon by the applicant.

[76] The application directly cited only CC as the individual whose behaviour was unreasonable, however, by implication the conduct of the HR staff and her direct manager has also been raised in this case. The position in response from the employer has dealt with the broader issues including these aspects. I therefore leave aside for present purposes whether the application should have been cast more broadly or an amendment sought.

[77] The application also relied in part upon the alleged conduct of NP and what the applicant saw as CC’s collaboration with NP.

6.1 The complaints of bullying against the applicant by NP and CC

[78] There are two aspects arising from this element. The receipt and investigation of the complaints and the making of the allegations themselves.

[79] I accept that the applicant may well have considered the making of the complaints to be part of a campaign against her and that she was certainly distressed in particular by the making of the second allegation. However, the receipt of the two complaints by management and the conduct of investigations in response were not unreasonable. Indeed, that course of action was the only reasonable and prudent response.

[80] In terms of the making of the allegations themselves, I would accept that the making of deliberately false or misleading allegations against another worker could be found to be unreasonable. The allegations made by NP were investigated by the employer and were not substantiated. This does not necessarily mean that they were false allegations or made mischievously, and there is very little evidence about them before the Commission.

[81] As to the allegations made by CC, these were also investigated and substantiated in part. I place no weight on those findings given the absence of evidence as to the basis of the conclusions reached. I do not however need to determine the substantive merit of those allegations for present purposes, other than to consider whether the making of the allegations represents unreasonable behaviour directed towards the applicant.

[82] I have heard direct evidence from the applicant and CC about those allegations. There is apparently some commonality of allegations with those made earlier by NP, although this is not of itself insightful given that each was made in relation to the same manager in the context of the same workplace and alleged conduct. Further, some of the issues raised against the applicant are very minor. However, I am satisfied that the making of the allegations by CC was not of itself unreasonable and there is insufficient evidence to support the notion that these were made as part of any form of coordinated campaign against the applicant.

6.2 The failure to take appropriate action to support the applicant after the initial complaint by NP

[83] The applicant was concerned that in light of the findings that the allegations by NP against her were not substantiated, the employer did not take sufficient steps to support her as a manager. The support proposed involved access to the organisation’s Employee Assistance Program (EAP), mentoring and management training.

[84] In particular, the applicant contends that management should have ensured that the support, with the exception of the EAP, was provided. I note that the applicant already had access to some professional support and did not seek the EAP service.

[85] In terms of the mentoring and training, it is apparent from the evidence of the applicant that she did not see the value of that support at the time and communicated this to management. There was also a period during 2014 when the applicant was unwell and not in the workplace and it was not unreasonable to delay proceeding with any form of management training of the nature proposed, in those circumstances.

[86] I note that after the lodgement of this application, the applicant has confirmed that the management training is being sought and that arrangements were made prior to the hearing of this application for the training to occur after that time.

[87] I find that HR and DD as the applicant’s manager should have been more proactive in ensuring that the support was provided to the applicant in the period after the allegations of NP had been dealt with. However, it was not of itself unreasonable for the employer not to have insisted that it take place at that time, given her response.

[88] With the benefit of hindsight, all parties would have been better served by proceeding with the additional training and mentoring when originally proposed.

6.3 Conduct during team meetings

August 2013 team meeting

[89] On 2 August 2013, there was a staff meeting of the DSO team where DD attended for the first time. During this meeting, NP directed a number of questions to DD about potentially working from home and related matters. This was perceived by the applicant, and some others at the meeting, as an attempt to ignore and undermine the applicant. DD stated that the issues should be raised with her line manager. On balance, I find that this was done, on at least one occasion, without referring to the applicant by name. In the circumstances, this was unfortunate, and although not intended, represented a lost opportunity to more fully support the applicant given the tensions in the working relationship with NP at the time.

September 2013 meeting

[90] In September 2013, the applicant did not attend a team meeting that she arranged and would normally have attended. The applicant indicated in evidence that she did not attend because NP would be there. The meeting occurred in the period after the making and rejection of the bullying compliant by NP, and at a time where NP would apparently avoid some meetings where the applicant was in attendance.

[91] It is not clear on the evidence whether the applicant informed her manger or the team that she was not attending. I also note that the applicant attended other team meetings after this time involving NP. 29 In any event, when the applicant did not attend, and after waiting some time, a number of the participants in the meeting, including CC, made some negative comments about the applicant as a manager.

December 2013 meeting

[92] In the December 2013 team meeting there was some discussion about annual leave arrangements and CC raised concerns about whether she was the only employee from the team working at that time. CC may also have complained about being left off an email, which if made, was not accurate. There is insufficient evidence to support a finding that the language or tone used by CC in this exchange was inappropriate or unreasonable.

[93] These events are not in my view significant and fall well below what might be considered to be unreasonable conduct in the context in which they took place. This includes the fact the meeting was intended to be a round table discussion where concerns of this nature might be raised and discussed.

6.4 The spreading of rumours and gossip about the applicant

[94] There is evidence to support the notion that there was a level of discussion in the workplace about the applicant including her management style. This evidence also leads to an inference that NP, CC and other DSOs may have been involved, however there is very little detail or actual evidence upon which more definitive findings can be made. In particular, there is little or no direct evidence about CC spreading what might be called rumours and unreasonable commentary about the applicant.

[95] There was an anonymous allegation associated with a work Christmas function. This was considered by the employer who made some initial inquiries. The applicant was advised that there was no substance and it would not be taken further. The applicant contends that the employer should have spoken to at least one particular employee to support her position, more fully investigated the matter, and made its findings known more broadly.

[96] There is no evidence that the allegation about the applicant’s conduct at the function had any substance. The decision not to fully investigate the matter in the circumstances was reasonable. Although the applicant would have preferred a full investigation and a more fulsome public exoneration, this would have created a focus and further attention upon the allegation that may well have also been unwelcome.

[97] There is no evidence linking this allegation to CC and only general speculation about who may have been involved. 30 In determining this application, I have however taken account of the fact that this false rumour may have been deliberately spread to annoy or harm the applicant.

6.5 The investigation of the applicant’s complaints against CC

[98] The applicant has raised concerns about how her complaints against CC were investigated. These are not relied upon as evidence of the alleged bullying conduct supporting the application but rather, as an indication that if bullying behaviour is found by the Commission, there is a likelihood of future unreasonable conduct.

[99] Although the results of the investigation have been provided to the applicant and the Commission, the full report and evidence about how the investigation was conducted were not. The employer relied upon legal professional privilege in that regard. As a result, I place no weight upon the outcomes of the investigation so far as it might otherwise have cast light upon the conduct of CC and the applicant. At least in terms of the conduct of CC as relevant to this present application, I have heard direct evidence from the applicant and CC (and others) about those matters and I rely upon my direct findings in that regard.

[100] I do however find that the engagement of an external person to investigate both competing allegations was not unreasonable. There was also nothing unreasonable about the apparent general approach adopted to the investigation by the legal firm. Nothing the applicant has put to me would lead me to a contrary finding as to the conduct of the investigation. The apparent findings of the investigation are however at odds with certain findings made by me from the evidence in relation to the applicant’s motives and I will return to the implications of the investigation shortly.

[101] Given the applicant’s position in relation to the external investigation and my ultimate findings in this matter, it was not necessary for me to consider whether legal professional privilege applied to that investigation and/or whether the employer had waived any privilege by seeking to rely to some degree upon its outcome. 31

6.6 Other matters

[102] The applicant also referred to various other matters which might be best described as relating to or arising from the culture within the workplace. These include allegations that CC spoke rudely or dismissively to the applicant at times. There are some aspects of an unhelpful culture in the workplace that are evident in the above findings. There is however little direct or robust evidence of other behaviour that might be described as being unreasonable for present purposes.

7. Conclusions and orders

[103] There are various matters that are not in dispute in this case including the nature of the workplace as a constitutionally-covered workplace, the applicant is a worker and any alleged conduct, if it occurred, took place at work. In that light, the Commission must firstly 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. If appropriate, I must also consider whether the circumstances contemplated in s.789FD(2) of the FW Act apply to the behaviour.

[104] NP and CC are individuals within the contemplation of s.789FD(1), 32 and this finding also extends to the applicant’s Manager, DD, and to the individual persons who have made up HR in this case.

[105] I accept that the making of vexatious allegations against a worker, spreading rude and/or inaccurate rumours about an individual, conducting an investigation in a grossly unfair manner and some of the other allegations made by the applicant are capable of being considered as unreasonable conduct of the kind contemplated by s.789FD(1). This depends upon the nature of the actual conduct and the context. I also accept that a manager may be subject to bullying behaviour by employees who report to them.

[106] However, the evidence about those matters in this case is insufficient to provide a basis for findings that an individual or group of individuals have repeatedly behaved unreasonably towards the applicant so as to create a risk to health and safety. In terms of most of the elements relied upon by the applicant, I am not satisfied that the alleged behaviour occurred and/or was unreasonable in the context that it occurred. Some of the behaviour as I have found was bordering upon unreasonable but not such as to fall within the scope of bullying behaviour as defined by the Act. In particular, I cannot be satisfied, based upon the evidence before the Commission, that the limited degree of unreasonable behaviour by the individuals concerned was such that it created a risk to heath and safety.

[107] As a result, I am not satisfied that the applicant has been bullied at work within the meaning of s.789FD of the FW Act. Consequently, there is no basis to consider the making of orders and this application must be dismissed. I so order.

[108] Given the ongoing relationships being canvassed in this decision and the particular features of this application, I consider that it is appropriate to make some additional comments to assist the parties.

[109] It should be clear that I have not found that the applicant acted vexatiously in bringing this application. The applicant considered that she had been bullied and although I have not been persuaded that this took place within the meaning of the FW Act, I do not consider that the application was made without any foundation. There are also some cultural, communication and management issues in this workplace that should be addressed by senior management.

[110] I have also not made findings about the outcomes of the external investigation as they apply to the allegations made by CC against the applicant. However, I note that there is some tension between some of my findings and those apparently reached by the external investigation on other matters that were directly relevant to this application.

[111] The employer should have regard to the findings and observations made by the Commission in dealing with the investigation and the members and management of the Delivery Support Team in the future.

Appearances:

SB, the applicant in person.

D Miller and R Soh of the Australian Industry Group for the employer and CC.

Hearing details:

2014:

Melbourne

April 1.

Further conciliation before Rowe C:

2014

Melbourne

April 22 and concluded by parties on 5 May.