| [2015] FWC 5565 [Note: An appeal pursuant to s.604 (C2015/5280) was lodged against this decision - refer to Full Bench decision dated 6 April 2016 [[2016] FWCFB 1914] and 6 April 2016 [[2016] FWCFB 1914]] respectively for result of appeal.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Hammon
v
Metricon Homes Pty Ltd T/A Metricon Homes and others
(AB2015/225)
COMMISSIONER ROE |
MELBOURNE, 14 AUGUST 2015 |
Application for an FWC order to stop bullying - whether action complained of constitutes bullying.
[1] Mr Hammon has made an application for an order to stop bullying under Section 789FD of the Fair Work Act 2009 (the Act). The application alleges bullying conduct by another employee, Matt Brand. The Applicant alleges that other managers have also been complicit in and/or have participated in this behaviour.
[2] Mr Hammon has been employed by Metricon since July 2009. At first he worked as a building estimator and he transferred to the position of site manager in September 2010. He was regarded as a trainee site manager for the first four months and then he was allocated sites to manage independently.
[3] Mr Hammon’s material in this case was voluminous and detailed. The material was not always in chronological order and at times specific allegations were buried in more generalised statements lacking particular detail or a time frame. I have carefully considered all of the matters; however, in some cases I deal with a particular class of allegations of inappropriate behaviour rather than each particular allegation. I have also focused in the decision on the major issues of alleged inappropriate behaviour raised and I do not canvas every detail raised.
[4] Having regard to the final submissions of Mr Hammon and to the evidence presented I consider that Mr Hammon’s major concerns are as follows:
a) The alleged failure of Metricon to increase his pay in line with expectations and/or the delay in such pay progression. Mr Hammon says that this was because of discrimination by Mr Brand. In particular Mr Hammon believes he was held back because of the actions or recommendations of Mr Brand, the failure of Mr Brand to provide appropriate training and support and the failure of Mr Brand to provide adequate opportunity to gain experience on double story building. Mr Hammon says that he raised each of these issues directly with Mr Brand and that did not resolve the problem. Mr Hammon says that he subsequently raised these issues at various levels within Metricon and it took many years for action to be taken.
b) The alleged failure of Metricon to provide him with the opportunity to transfer to the central area where the variety of work and career opportunities are greater. Mr Hammon says that this was because he had not been given adequate opportunity to perform work on double story buildings and this was because of discrimination by Mr Brand. Mr Hammon also says that Mr Brand intervened in the selection process for the central area position to unfairly stop his progression.
c) The action of Metricon in February and March 2015 in alleging a number of OHS breaches by Mr Hammon. This resulted in the closure of a number of his construction sites and an investigation which found that there had been some breaches of policy and procedure. Metricon then issued a first and final warning against Mr Hammon. Mr Hammon alleges that his sites were particularly targeted by Mr Brand and Mr Grant. Mr Hammon alleges that the alleged breaches were minor and that there were worse obvious breaches on other sites but that no other site managers sites were closed down and no other site manager was subject to discipline. Mr Hammon also says that when the sites were closed they were very close to completion. Mr Hammon says that if the sites had not been closed his results (e.g. time to complete house construction) would have been so outstanding that his application to move to central area would have been much more likely to have been successful. Mr Hammon alleges that Mr Brand and Mr Grant took this action in order to harm his progression.
d) The alleged failure of Metricon to investigate Mr Hammon’s allegations of bullying and unfair treatment which he raised in October 2013 and again in March 2014 in a timely manner and the alleged failure to consider his bullying complaint when investigating Mr Hammon’s alleged breaches of policy in February 2015.
e) Mr Hammon alleges that Metricon and its managers create a highly competitive and stressful environment in which individual performance against key performance indicators is constantly monitored and is published and shared amongst employees. Bonus payments and opportunities for progression are linked to this process. Mr Hammon alleges that there was a failure to properly recognise his achievements in this process.
f) Mr Hammon says that he was allocated an unreasonable workload by Mr Brand and Mr Grant and that this was injurious to his health and impacted on his ability to progress.
g) Mr Hammon says that his ability to access a Certificate IV building course was delayed by Mr Brand. Mr Hammon says that all other site mangers were able to complete the course and that his enrolment in the course was unnecessarily delayed.
h) Mr Hammon says that after the issuing of the first and final warning in March 2015, Metricon and Mr Hammon agreed that it was not viable for him to continue working in his current team reporting to Mr Cooper who then reports to Mr Brand and through him to Mr Grant. Metricon proposed two alternatives to Mr Hammon, transfer to another team in the northern suburbs which would involve considerable additional travel time in the company allocated vehicle to get to and from work each day or return to a job in estimating, a role Mr Hammon had performed prior to becoming a site manager. Mr Hammon says that the later role would be paid at a considerably lower rate when compared to his current role.
[5] Mr Hammon referred to a number of other incidents which were linked to these issues or which he says otherwise constituted unreasonable behaviour:
a) Mr Hammon alleges that in the first fortnight of his training as a site manager there was a look alike board in the office. A picture of Mr Hammon as a dwarf was placed on that board along with pictures attributed to other employees.
b) Mr Hammon alleges that early in his training a painter was abusive towards him and he heard others including Mr Brand laughing about the situation.
c) Mr Hammon alleges that during the initial training period the site manager who was assisting him called him a lackey.
d) Mr Hammon alleges that he was deliberately trapped in the ceiling of a house by Mr Brand.
e) Mr Hammon alleges he was threatened or insulted by another worker at the 2013 end of year function. He alleges that he raised this issue with Mr Duncan who took no action. At the following year’s end of year function the same worker challenged him to an arm wrestle. He raised this with Mr Cooper, whom Mr Hammon says is associated with Mr Brand. Mr Cooper took inadequate action in response to the incident.
f) Mr Grant suggested in an email that Mr Hammon’s pay be delayed to show him what it is like for building contractors not to get paid because of Mr Hammon’s failure to complete relevant paperwork.
g) In February 2015 Mr Brand’s immediate manager Mr Cooper suggested in an email to HR that Mr Brand was not able to cope with his normal work. Ms Keo from HR suggested to Mr Cooper that it was inappropriate to raise such a matter with HR without first raising it with the employee. Mr Cooper agreed to apologise and did so to Mr Hammon. He also said that he would put the apology in writing but failed to do so.
h) After Mr Hammon received the first and final warning in March 2015 he did not return to work. He has been unwell and has been pursuing his alleged bullying application. Metricon allegedly restricted his remote email access given that he was not at work.
[6] I generally found Mr Hammon to be a sincere witness. I have no doubt that he tried to tell the truth. I also have no doubt that Mr Hammon has a very deep sense of injustice and hurt about his treatment by Metricon and this is particularly directed at Mr Brand and Mr Grant. However, perhaps in part because of his distress, I am satisfied that Mr Hammon does not have a clear and accurate memory of events. The failure to present his material in clear and chronological order is in my view illustrative of Mr Hammon’s confusion. I am satisfied that Mr Hammon had a tendency to reach sweeping and general conclusions from isolated events. He calls upon totally unrelated events from a different time period to support his conclusions or assertions about a particular event. Mr Hammon was also quick to draw conclusions about the motivation of Mr Brand and others.
[7] I am satisfied that Mr Hammon made some statements without proper evidence. For example he said in his statement that “Matt and Ross do not care about safety.” I accept the evidence of Mr Brand and Mr Grant that they both care a great deal about safety and seek to implement Metricon’s policies and procedures in respect to safety to the best of their ability. Mr Hammon accused Mr Brand of being “corrupt and a bully”. Mr Grant quite correctly responded to this by observing that it was slanderous. Mr Hammon produced no evidence to support an allegation that Mr Brand is corrupt. Mr Hammon accused Mr Grant of behaving in an intimidating manner in front of his neighbours when he came to collect the work car from Mr Hammon. I was satisfied that there was nothing improper about Mr Grant’s actions in coming to collect the car from Mr Hammon. It is not in contention that Mr Grant remained in his car and so did nothing to attract the attention of the neighbours. I am satisfied that Mr Grant did not park across Mr Hammon’s drive as suggested by Mr Hammon.
[8] Mr Hammon says that when he moved into the site management role the manager responsible for his appointment, Mr Warburton, told him that he would start on $55,000 and after four months training this would increase to $65,000 and after about two years’ experience he would be paid an industry standard of around $85,000 to $90,000. Considering the evidence in context I am not satisfied that there was a firm contractual commitment to these figures. I am satisfied that Mr Warburton was identifying the sort of increases which might be expected subject to satisfactory progress and performance and that the amounts and timeframes were indicative or illustrative. I am also satisfied by the evidence from Metricon witnesses that all site managers have been subjected to salary freezes during some of this period and in other periods there have been only small increases paid. Between 2011 and 2015 Mr Hammon received bonuses totalling $16,109.98. His base salary also increased from $55,000 to $62,339.45 on 2 July 2011, to $68,715.60 on 19 September 2011, to $69,724.77 on 1 July 2012, to $73,478.26 on 1 July 2013, to $83,478.26 on 16 March 2014. It is evident that Mr Hammon’s pay has increased largely in line with the expectations he says that he was given by Mr Warburton except that it took an additional six months for the first increase to occur and then the increase to “industry standard” took around three years instead of the expected two years.
[9] I am satisfied that Mr Brand was not responsible for Mr Hammon’s pay rate. The decisions about pay increases for employees are determined through a complex process involving a number of people. Mr Brand’s assessment of Mr Hammon’s performance was one input into the process. Mr Hammon complained about his rate of pay on a number of occasions. I am satisfied that, partly in response to those complaints, Mr Hammon’s pay was reviewed and increased. Metricon accepted that there were some unfortunate delays in addressing Mr Hammon’s dissatisfaction with his pay progression. However, I am satisfied from the history of increases and bonuses that there is no basis to conclude that Metricon or any of its managers engaged in unreasonable behaviour in respect to Mr Hammon’s rate of pay.
[10] Mr Hammon says on the one hand that he was given low level duties during the training period which was unnecessary and held him back given his previous skills and experience. On the other hand he says that he was not provided with enough training and support. Mr Hammon says that no other site manager has been labelled a trainee. I accept the evidence of Mr Grant and Mr Brand that a number of the other site managers have been and continue to be labelled as trainees and treated in a similar manner to Mr Hammon. Mr Hammon says that some other site managers were given the opportunity to manage sites more quickly than he was. There is insufficient evidence concerning the skills and experience of these managers.
[11] Mr Hammon says that on occasion he was told to sit in the corner and watch. This is denied by Metricon but I am satisfied that even if this did occur it could not be unreasonable action given that observing others work is an established part of a training or learning process. Mr Hammon says that each of the 5 site managers, one at a time, sat with Mr Brand while he criticised their work in front of the group. If this is true it might not have been an ideal training practice but it does not suggest differential treatment of Mr Hammon.
[12] Mr Hammon says that in the first week of work he was sent to a site to discuss a possible ordering error with a painter. The painter became angry and abusive. He later heard Mr Brand talking and laughing about this in the office. Mr Hammon believes that he was set up to be abused. Mr Hammon says that it could have been done over the phone to avoid confronting a difficult person. I consider it most unlikely that the confrontation was a set up. I am satisfied that being sent to a site to discuss the ordering error with the painter was a reasonable part of training and development.
[13] Mr Hammon says that an offensive photo of a dwarf with his name written on the photo was displayed on the wall in the office by Mr Brand. Metricon say that a look alike board was initiated by a staff member, not Mr Brand. Metricon witnesses say that the board contained humorous pictures of all staff members in the office, including Mr Brand and Mr Hammon. Mr Hammon does not recall Mr Brand’s picture. Mr Hammon did not complain about the board at the time. I am satisfied that Mr Brand was not responsible for the look alike board. I am satisfied that the board was inappropriate and that Mr Brand as the relevant manager should have stopped it. This was unreasonable behaviour by Mr Brand which impacted on Mr Hammon. Failure to act can be unreasonable behaviour. However, I am not satisfied that the board was directed at Mr Hammon.
[14] As I identify later when dealing with the performance management process, the culture in this area of Metricon appears to be robust. Correspondence is copied widely, performance data on individuals is widely shared and comments are made in front of others. This culture can be confronting and at times distressing for those like Mr Hammon who are sensitive. The look alike board is an example of how this approach can be inappropriate and unreasonable.
[15] Mr Hammon says that he was called a lackey by Matt Fennessy and told to clean sites by hand and do material deliveries. It is a normal part of any training program for employees to learn a range of duties. However, the use of the term lackey, if it occurred, would be inappropriate. Mr Fennessy was not called as a witness. I therefore accept Mr Hammon’s evidence and find that this was unreasonable behaviour. I am not satisfied that Mr Hammon raised this particular allegation with Mr Brand or with Metricon human resources.
[16] Mr Hammon says that he was left waiting by Mr Hennessy for long periods of the day without instruction and Mr Hammon told Mr Brand that he was not receiving relevant training. A person in training is not always in the best position to judge the appropriateness of the training program as they don’t know what it is that they need to learn. It is obvious that Mr Hammon was given responsibility to manage sites after a relatively short period of time. There is no basis to conclude that the training provided was unreasonable behaviour.
[17] Mr Hammon says that he complained to Mr Warburton about the quality of the training he was receiving and Mr Warburton said that he would take it up with Mr Brand. Mr Hammon says that Mr Brand then told Mr Hammon that he wasn’t happy that Mr Hammon had complained. I am not satisfied, considered in context, that this was unreasonable behaviour.
[18] Mr Hammon says that Mr Brand spoke to him in a patronising way and deliberately did not train him properly so as to make him fail. I am satisfied that Mr Hammon and Mr Brand had differing perceptions of Mr Hammon’s level of knowledge and experience. However, I do not consider that this difference in perceptions constituted unreasonable behaviour by Mr Brand. I accept the evidence of Mr Brand that he was not setting Mr Hammon up for failure. In fact it is obvious from the various performance reports that Mr Brand considered that Mr Hammon was learning and progressing satisfactorily.
[19] Mr Hammon says that on one occasion during the training period he was told by Mr Brand to go into a roof cavity to switch off a light and while he was in the roof Mr Brand closed the access panel and removed the ladder leaving him stuck in the ceiling with no light. Mr Hammon said that he managed to remove the access panel and jump down to the floor. Mr Brand denies that this occurred. It is an extremely serious allegation which if true would constitute seriously unreasonably behaviour of a type which would contribute to a bullying finding. However, I note that Mr Hammon complained to Metricon Human Resources about Mr Brand on a number of occasions over subsequent years and it is not suggested that he ever raised this particular allegation. In some circumstances employees may be scared to raise allegations or may be reluctant to do so because they may find repeating particular stories to be humiliating or embarrassing. However, I am not satisfied that this is the situation in Mr Hammon’s case. Mr Hammon was not reluctant to put forward his complaints and did so in detail on a number of occasions. In Mr Hammon’s performance reviews there is a consistent comment from his managers, endorsed by Mr Hammon, that Mr Hammon is open and honest in expressing his views particularly in group discussions. I therefore find it strange that Mr Hammon did not raise this most obvious and serious incident. On this matter I prefer the evidence of Mr Brand to that of Mr Hammon. I am not satisfied that Mr Brand deliberately stranded Mr Hammon in a roof cavity.
[20] I am satisfied that although Mr Hammon was in the same team as Mr Brand for most of the time, he was only directly managed by Mr Brand for 4 months, he was then working at Keysborough under the supervision of Mr Rasmussen for 4 months and then he was supervised by Matt Duncan. Mr Duncan was then responsible for Mr Hammon’s performance reviews in 2011, 2012, 2013 and 2014. In recent months Mr Hammon was supervised by Mr Cooper. The 2011 performance review of Mr Hammon occurred about 9 months after he commenced work as a trainee site manager. In the 2011 review management makes overwhelmingly positive comments about Mr Hammon and Mr Hammon makes comments which complement rather than contradict those assessments. Mr Hammon refers in the 2011 review to the alleged occasion when he had 21 sites to manage as a positive which illustrates his capacity and the nature of his learning.
[21] As observed earlier Mr Hammon was particularly concerned that he did not get a pay increase after the end of the 4 month training period but instead had to wait nine months before receiving the increase he expected. He links this to unfairly negative reviews of his performance by Mr Brand. I cannot find any strong evidence to support a conclusion that Mr Brand provided unreasonably negative reviews of Mr Hammon’s performance and even less evidence that this was the reason for any delay in Mr Hammon’s pay adjustment. Metricon’s pay review system for site managers is totally at the discretion of management. It is not regulated by award or collective agreement. The fact that increases may differ from expectations in both timing and quantum is entirely to be expected and I am satisfied that Mr Hammon’s experience would have been shared by many other employees.
[22] Mr Hammon says that at the time of the 2013 performance review he had built 40 houses in the previous 12 months and this was the best performance of his team. He says that this was not acknowledged but instead he was taken to task about insignificant issues. In fact the July 2013 performance review says “Employee comments: quantity is outstanding because I have settled around 40 houses in 12 months by working extremely hard. Manager Comments: On average Jade has managed a high workload larger than expected of our SMs. This was an extremely difficult time for all to manage. Some months Jade managed to settle 7 houses which is a great effort.” The incident when Mr Hammon was taken to task occurred some months later on 10 October 2013.
[23] In each of Mr Hammon’s performance reviews there is acknowledgment by management of his positive performance. It is true that Mr Hammon consistently rates himself more highly than his managers. However, there is no basis to conclude that Mr Hammon was discriminated against or was treated unreasonably by his managers and particularly by Mr Brand.
[24] In April 2013 Mr Hammon had a meeting with Human Resources and outlined a number of concerns. Mr Hammon requested the meeting to be informal and confidential and he specifically asked human resources to not take any action. The notes of that meeting kept by Human Resources show that Mr Hammon:
• Felt that in the initial period of his work as a site manager he was given low level duties which prevented him from progressing.
• Felt that Mr Brand has a personal grudge against him.
• Felt that his pay had not been increasing as he had expected it to do so. He believed that he had been given a commitment about this likely pay progression by Mr Warburton. Mr Hammon believed that others were progressing in their pay more quickly and that his treatment was unfair.
• Believed that he was being micromanaged and not being encouraged and supported.
• Wanted to be transferred to central region where there would be more challenging work. Mr Warburton told him that “it was not a matter of if but when”. When Mr Hammon advised Mr Brand that he wanted to transfer Mr Brand said that it had to be approved by him after discussion with the other managers. Mr Hammon believed that Mr Brand had given negative feedback to other managers and this reduced his chances of moving to central. Mr Hammon said that other colleagues had told him that this had in fact occurred.
• Conceded that he wasn’t the only one who was unhappy and that all the site managers in the Southern region where Mr Hammon was based had a meeting and expressed their unhappiness with work pressures and negative feedback.
[25] Mr Hammon says that the building coordinator was constantly abusing him and was rude to him in front of Mr Duncan. Mr Brand produced an email exchange which documents communication problems between Mr Hammon and Ms Logan in July 2013. Ms Logan was annoyed at Mr Hammon’s delays in completing paperwork. Mr Brand says that Mr Hammon conceded that he had been slow in responding to Ms Logan’s requests. I accept this evidence. I also have no reason to doubt Mr Hammon’s statement that Ms Logan was rude to him. However, I accept Mr Brand’s evidence that the situation was resolved and did not continue.
[26] There is no direct challenge to the accuracy of the minutes of the meeting of 10 October 2013 provided by Mr Brand. Those minutes do say that Mr Brand believes that Mr Hammon could be successful in the site manager role. However, Mr Brand was concerned about Mr Hammon’s state of mind and his statements about not wanting to work for Metricon. Mr Hammon says that he was performing very well and instead of acknowledging this Mr Brand raised “insignificant issues”. There is no basis to conclude that the matters raised were insignificant. The issues were failure to enter sick leave into the system, completion of customer presentation prior to CM approval at one site, delay in updating a landscaping event which delayed payment to a tradesperson, and delay in updating a damaged dishwasher report despite three reminder emails. None of these matters was regarded as major but it is obvious that they are not insignificant.
[27] Mr Hammon says that at the time of the 2012 performance review he was required to work an excessive number of sites and this affected his performance results and his salary increase. I accept the evidence from Metricon which demonstrated that all site managers were faced with an additional work load and that Mr Hammon’s workload was not exceptional compared to others.
[28] Mr Hammon says that in September 2014 he was issued with twice the amount of starts he was supposed to have in one month. This resulted in an unmanageable number of completions in February 2015. Mr Brand provided statistics which show that there were a larger number of starts for the south team in September than in surrounding months. However, the data shows that in the south team Mr Hammon was not allocated a greater workload than a number of other site managers in the team. Mr Hammon raised some issues about the accuracy of the data as a measure of actual workload. I accept that there may be some limitations in the data but I am satisfied by the evidence of Metricon that these limitations would not alter the overall conclusion that there was no deliberate action by Metricon managers to allocate Mr Hammon an unreasonable or a disproportionate workload.
[29] I accept that Mr Hammon’s high workload in this period contributed to his level of stress and may have contributed to the incidents which led to the closure of his sites.
[30] Mr Hammon says that there is a competitive environment created between site managers through the publication of individual and team performance against many performance indicators. Metricon denies that a competitive environment is created. Having considered the evidence as a whole I am satisfied that there is a real basis to Mr Hammon’s concerns. The site managers are, despite their title, a fair way down the Metricon hierarchy. They are not senior managers and the complexity of their performance measurement and payment system has created stress for Mr Hammon. There is inevitably considerable tension between the focus on time completion targets and on occupational health and safety, customer satisfaction and quality. I am satisfied that whether intended or not the publication of performance data and the linkage between this and salary rewards and other recognition inevitably creates competition and considerable risks and pressures for some employees. It is of course reasonable management action to introduce a reporting and performance system. However, I have some doubts that this was carried out in a reasonable manner in the case of Mr Hammon. There was insufficient evidence to reach a firm conclusion.
[31] After about a year working as a site manager Mr Hammon told his manager, Mr Duncan, that he would like to move eventually to the central area and build more large double storey houses and that he would like to get more experience in that area to help his career aspirations. Mr Hammon says that he believes that Mr Brand instructed Mr Duncan to hold Mr Hammon back and to not give him more exposure to double storey work. I am satisfied that Mr Hammon did seek more double storey work and that eventually management responded to his complaints about this matter and provided access to more of this sort of work. I am not satisfied that Mr Brand took any action to deny Mr Hammon access to double storey work. I am not satisfied that the degree of access to double storey work was unreasonable behaviour directed at Mr Hammon.
[32] Mr Hammon wanted to be transferred to central region where there would be more challenging work. Mr Warburton told him that “it was not a matter of if but when”. When Mr Hammon advised Mr Brand that he wanted to transfer Mr Brand said that it had to be approved by him after discussion with the other managers. Mr Hammon believed that Mr Brand had given negative feedback to other managers and this reduced his chances of moving to central. Mr Hammon said that other colleagues had told him that this had in fact occurred. Another person was selected for the central region site manager role.
[33] I accept the evidence of Mr Brand that he was not present at the interview for the central region position. Metricon say that it is was a merit based selection process and that Mr Hammon was unsuccessful because of his lack of experience on double storey homes. Following this Mr Brand says that it was proposed to move Mr Hammon to an area under Mr Cooper so that he would get more experience on double storey homes. There is insufficient basis to conclude that the selection process for the central region site manager role was unfair. I also accept the evidence of Metricon that it operates a selection process for vacant positions and that Mr Warburton would not have guaranteed a particular position to Mr Hammon at a particular time.
[34] On 24 February 2014 Mr Grant emailed finance as follows: “Kristi, I tell payroll not to pay the SM on the next pay run so he knows how it feels.”
[35] The Site Manager (SM) referred to was Mr Hammon. The email was in response to an email from finance to Mr Hammon and a range of his managers:
“Hi all
Last week we contacted Jade regarding the below invoice received that the release payment task has not been marked complete in Clickhome. Jade advised that the works have been completed. To date the release payment task has still not updated. Please be advised that the below sub-contractor missed payment due to this.”
[36] Mr Hammon acknowledged in an email to Ms Zelos in HR on 24 February 2014 that the failure to complete the release payment task was his error. He asked if he should be worried about getting paid and also inquired about “what qualifies me to use the stress leave I have accumulated” and said that “I have tried to contact you several times this year in relation to the bullying, discrimination and equal pay issues that we discussed last year”.
[37] Ms Zelos responded on 24 February 2014 and apologised for the delay in responding to his calls the previous week. Ms Zelos said that it was her understanding that the concerns raised at the last meeting in October 2013 had been resolved and that Mr Brand and Mr Hammon had agreed to work to improve their relationship and a pay increase had been granted to Mr Hammon. The issue about access to more double storey builds had been raised with management and if it was still an issue Mr Hammon was asked to let her know. Ms Zelos said that in respect to the withholding of pay she believed “Ross is trying to be humorous but obviously came out a little off side.” Ms Zelos said that Mr Hammon was entitled to use personal leave provided that proper notice was given and medical certificates provided.
[38] Mr Hammon replied on 28 February 2014. In that correspondence he said that the issues with Mr Brand had not been resolved. He said that Mr Brand had been bullying him and cited “excessive criticism, blocking my move into central, renegotiating my agreed salary after two years and trying to force me to resign.” Mr Hammon requested to know what action has been taken to stop the bullying he had reported at the last meeting in October 2013. Mr Hammon acknowledged that since the last meeting he had been given 3 more double storey sites. Mr Hammon explained that he was still dissatisfied about his pay. He considers that the failure to increase his pay in line with expectations was a further attempt to force him to resign. He said that he did not regard the threat to his pay as a joke.
[39] Mr Hammon says that as a result of the intervention by Ms Zelos, Mr Brand left Mr Hammon alone and he agreed to keep working.
[40] I am satisfied that Mr Grant’s actions in sending the email about stopping Mr Hammon’s pay were inappropriate. Considered in context these were not reasonable management actions. It would have been reasonable for Mr Grant to counsel Mr Hammon about the consequences for contractors when he is tardy with the completion of paper work. However, the practice of copying large numbers of people into communications of this type is humiliating and an inappropriate exercise of authority. The threat to stop pay was also disproportionate and inappropriate.
[41] Metricon did respond to Mr Hammon’s allegations concerning his pay, his access to double storey houses, and his desire to transfer to the central area. However, I am satisfied that Metricon failed to properly investigate and respond to the bullying allegations made by Mr Hammon in October 2013. Mr Brand gave evidence that he was not interviewed by Metricon about the allegations that he had bullied Mr Hammon. I am satisfied that the failure to clearly investigate and respond to the allegations in a timely manner contributed to Mr Hammon’s stress. Metricon suggest that Mr Hammon did not want his complaint investigated. I accept that this was the case initially. I also accept the evidence of Mr Hammon that this was not the case after October 2013 but Mr Hammon did not always communicate this consistently. I am satisfied that Metricon thought that it had addressed the particular issues raised by Mr Hammon. As in these proceedings Mr Hammon made sweeping statements which were not always in a chronological order. The actions of Metricon in trying to particularise matters and focus on resolving the issues were understandable. Mr Hammon did not raise with management many of the specific matters raised in these proceedings. Once Metricon became aware of Mr Hammon’s bullying complaint to the Fair Work Commission they offered to undertake an independent investigation of the matters raised. Given all these circumstances I am not satisfied that the failure to investigate and respond was unreasonable management action.
[42] Mr Hammon says that a manger tried to start a fight with him following an end of year break up gathering in 2013 and again in 2014. Mr Hammon says that he reported the matter to Mr Duncan in 2013 and to Mr Cooper in respect to the 2014 incident and they allegedly did nothing.
[43] Mr Duncan did not give evidence. Mr Hammon did not raise these incidents with Metricon prior to making the bullying application to the Fair Work Commission. I found Mr Hammon’s description of what happened at the 2013 gathering to be vague. There is insufficient detail before me to reach a conclusion about the 2013 incident.
[44] Mr Brand says that he is aware that in December 2014 at a work function a site manager did ask Mr Hammon for an arm wrestle. Mr Hammon raised this matter with Mr Cooper in January 2015. Mr Cooper investigated and confirmed that the incident did occur. He asked Mr Hammon if he wanted to put in a complaint and Mr Hammon said no. I am satisfied that the behaviour was inappropriate and that Metricon should have taken the matter further. It should not have been up to Mr Hammon to make a formal complaint. Mr Cooper’s actions in requiring a formal complaint were inappropriate.
[45] On 7 May 2014 Mr Hammon raised concerns about not being able to complete the Certificate IV in building and construction. I am not satisfied that Mr Hammon was prevented from undertaking a Certificate IV in Building. He enrolled in October 2013. The employer explained difficulties in scheduling enrolments with RMIT. Mr Hammon was unable to do one of the courses because his annual leave would have meant he missed some classes. Mr Hammon was of the view that this shouldn’t have prevented him from being included. It is possible that Mr Hammon may have been correct in his view but there is no basis to conclude that the decision to delay Mr Hammon’s participation was for any other reason than the one that was stated by Metricon. I accept the evidence of Mr Brand that there are still a number of site managers who have not completed the course and some of them have been longer serving than Mr Hammon.
[46] On Thursday 12 February 2015 Mr Cooper raised with Ms Keo in HR his concern about Mr Hammon’s health. Mr Hammon had not attended two compulsory office meetings and had rung in sick but had continued to send out work emails from home.
[47] There was then a meeting about the matter with HR on Friday 13 February 2015.
[48] Ms Keo agreed that it was inappropriate for Mr Cooper to suggest in writing to HR that Mr Hammon was unable to cope with normal site manager duties without first raising the issue with Mr Hammon. I agree with Ms Keo, however, this was not a significant incident of inappropriate behaviour and Mr Cooper did apologise. I am satisfied that Mr Hammon was stressed and distraught and was in need of urgent assistance. There is no reason to conclude that Mr Cooper was trying to harm Mr Hammon.
[49] On 12 February 2015 Mr Johnstone carried out what Metricon says was a routine inspection of Mr Hammon’s sites. Mr Johnstone found a number of problems and he emailed his report to Mr Hammon by email.
[50] On Friday 13 February 2015 Mr Hammon was asked to go to the sites and complete all safety inspections. Mr Hammon says that he did complete the inspections and emailed the manager to confirm at 7.20pm.
[51] On 17 February 2015 Mr Brand and Mr Cooper conducted an audit of the site at 1948 Cherryfield Avenue Keysborough and found discrepancies between Mr Hammon’s National Safety Check list and the actual situation at the site. Mr Hammon had ticked yes to compliance with the National Safety checklist when in fact the site was not compliant. On 17 and 18 February all of Mr Hammon’s sites were audited.
[52] Early the following day, Wednesday 18 February 2015 Mr Brand and Mr Cooper went to the sites and closed them due to alleged safety breaches. Mr Hammon rang Mr Cooper 6 times that day but received no return call. At the end of that day Mr Hammon was suspended pending an investigation. Mr Hammon provided written responses to the allegations as part of the investigation.
[53] A first and final warning was issued.
[54] The investigation was conducted by Rom Keo and Emily Makarucha from Human Resources and by Zandy Fell of the ZALT Group. Rom Keo and Zandy Fell interviewed Mr Cooper and Mr Johnstone. The allegations were provided to Mr Hammon and he provided a written response and following that there was a face to face interview with Ms Keo and Ms Makarucha.
[55] The investigation found that it was common for site managers to not complete the scaffolding section of the National Safety report even though the photos showed that scaffolding was installed on site. Mr Hammon’s explanation that the system did not allow completion of this section properly was plausible. However, it is clear that Mr Hammon was trying to sign off that the scaffolding was OK so it is reasonable to act on the basis that he certified it was OK. The investigation found that Mr Hammon’s practices were not consistent with the training he had received from Mr Johnstone on 21 January 2015. They also found that Mr Hammon’s perception of safety on a building site falls below Metricon’s expectations, policies and procedures.
[56] The investigation found that:
• At 1948 Cherryfield Avenue there is a gap in the side fencing and temporary fences which is visible in photos taken on 12 February by Mr Johnstone, on 13 February by Mr Hammon and on 17 February by Mr Cooper.
• At 1948 Cherryfield Avenue there is sand over the footpath visible in the photographs taken by Mr Hammon on 13 February and photos taken by Mr Cooper on 17 February.
• At 1948 Cherryfield Avenue there are a number of internal and external housekeeping issues visible in the photos taken by Mr Johnstone and Mr Cooper.
• At 1948 Cherryfield Avenue there were loose scaffolding pieces and tiles sitting on the top floor of the scaffolding. This is visible in the photos of Mr Hammon of 13 February 2015 and in the photos of Mr Cooper of 17 February 2015.
• Mr Hammon had completed the National Safety Checks in the Clickhomes system to state that all OHS was compliant. Mr Hammon emailed Mr Cooper that all OHS was completed and this was confirmation that the sites were OHS compliant when they were not.
• At Lot 118 Wendyn Avenue there were problems identified with the scaffolding. Mr Grant was on site when Mr Hammon attended on 18 February 2015. There was a notice which had been erected by Mr Cooper and Mr Grant that the scaffold was not safe and there was to be no entry or work on the scaffold. Mr Grant reiterated this to Mr Hammon but despite this Mr Hammon entered the site and the scaffolding. Mr Hammon advised that “there were only two planks that had not been reinstalled after the flashing was completed and I reinstalled them and could not find any other defects to the scaffold”.
• At Lot 280 Newbury Street there were problems identified with a missing rail in the scaffolding. Mr Hammon certified that the site was safe when according to Metricon it was not. Mr Hammon responded that it was the error of the plumbing contractor, and the plumbers were to use a ladder not the scaffolding for the downpipe work and they should have completed roof work whilst the scaffolding was in place and they failed to do so. The investigators found that the scaffolding was unsafe due to the missing rail and this was substantiated in Mr Hammon’s photograph and in Mr Cooper’s photograph. The investigators found that Mr Hammon did not instruct work to be performed in an unsafe manner but that he should have been aware of the problem and the failure to do so led to potentially unsafe work.
[57] The investigation found that there has been a relationship breakdown between Mr Cooper, Mr Brand and Mr Hammon and that a specific strategy will be required for the parties to work together again effectively. The investigation found that Mr Hammon was not allocated unfair or excessive workload. The investigation found that Mr Brand and Mr Cooper had not targeted Mr Hammon and that the catalyst for this investigation was the independent audit conducted by the OHS field officer. Mr Johnstone said that he was not asked to audit Mr Hammon’s sites and that he works through the list of site managers. Mr Johnstone reported that the result of his audit of Lot 1948 Cherryfield Avenue was below average but not a fail.
[58] Mr Cooper told the investigation that all site managers had been told that fortnightly OHS compliance checks would be made. Site managers are expected to complete inspections by a specified date. Reminders were provided to all site managers of the deadline of 14 February 2015. On 13 February 2015 Mr Hammon texted to Mr Cooper that OHS was all done. The report was emailed on 16 February 2015.
[59] Mr Hammon says that Mr Grant and Ms Keo told him that they had not even read his response to the allegations. I am not satisfied that this is correct. The investigation report specifically refers to the responses provided by Mr Hammon. Some of the original allegations were not found to have been made out after considering Mr Hammon’s response.
[60] Mr Hammon alleges that his sites were particularly targeted by Mr Brand and Mr Grant. I accept the evidence of the Metricon witnesses that Mr Jonhstone conducts regular audits of all site managers. I am not satisfied that Mr Hammon was particularly targeted.
[61] I am satisfied that Mr Brand and Mr Grant were not responsible for the health and safety issues identified by Mr Johnstone in his inspection of the sites.
[62] I accept the evidence of Mr Hammon that had his sites not been closed he would have achieved very good results for completion rates on those sites and this would have assisted him in his quest for relocation to other jobs and further career progression.
[63] I accept that it is possible that there were safety breaches on other sites as alleged by Mr Hammon. Mr Hammon himself reports that a number of site managers and other managers have left Metricon employment in recent times. I accept the evidence of Mr Grant that 7 people have been warned due to OHS issues following inspections and one employee had their employment terminated. It would not be reasonable to assume that Metricon can identify and act upon every possible safety breach. However, I am not satisfied that there is evidence to determine that Metricon would not take action against identified safety breaches.
[64] I accept the evidence of Mr Grant that the only sites closed this year have been Mr Hammon’s sites. This suggests that the action is unusual but it does not necessarily mean that Mr Hammon was targeted unreasonably.
[65] Having considered the voluminous evidence about the alleged breaches I do not agree with Mr Hammon that the alleged breaches were minor. I agree that they were not the most serious breaches one could find on a building site, however, they were serious breaches. Gaps in fencing pose a serious health and safety risk to the public, particularly children. Gaps in scaffolding and obstructions on scaffolding are a particularly serious issue. Poor housekeeping can pose a serious health and safety risk to a range of contractors on site.
[66] Mr Hammon alleges that the matters which were substantiated were substantiated on the basis of faulty evidence. The investigators had access to photographs and information provided by Mr Johnstone from his visit on 12 February, photographs and information provided by Mr Hammon in his reports of 13 February (received on 16 February) and the photographs and information provided by Mr Grant and Mr Cooper concerning their visits on 17 February. Mr Hammon argues that it is possible that things had been changed between 13 February and 17 February 2015. Mr Hammon suggests that fences and other items could have been moved by contractors on site during that period.
[67] I am satisfied that Mr Brand did not have a significant role in the decision to close the sites or in the investigation or in the decision to issue the warning. Mr Brand did note problems at Cherryfield Drive and alerted Mr Cooper. I am not satisfied that this was anything other than Mr Brand doing his job. I note that a number of other allegations were not substantiated by the investigation and that in the main this was because the investigators considered and accepted Mr Hammon’s responses to the allegations.
[68] I am also satisfied that:
• There was a reasonable basis for the investigators to conclude that at 1948 Cherryfield Avenue there is a gap in the side fencing and temporary fences which is visible in photos taken on 12 February by Mr Johnstone, on 13 February by Mr Hammon and on 17 February by Mr Cooper. I observed the photographs and came to the same conclusion. I accept that it is not beyond doubt but there is no basis to conclude that the actions of Mr Grant and Mr Cooper in closing the site and pursuing this issue were unreasonable or vexatious.
• There was a reasonable basis for the investigators to conclude that at 1948 Cherryfield Avenue there is sand over the footpath visible in the photographs taken by Mr Hammon on 13 February and photos taken by Mr Cooper on 17 February 2015. I accept that there appears to be some difference in the two photographs but I am satisfied that this is explained by the different light and angle in the two photographs. Again I accept that it is not beyond doubt but there is no basis to conclude that the actions of Mr Grant and Mr Cooper in closing the site and pursuing this issue were unreasonable or vexatious.
• There was a reasonable basis for the investigators to conclude that at 1948 Cherryfield Avenue there are a number of internal and external housekeeping issues visible in the photos taken by Mr Johnstone and Mr Cooper. My observations of the photographs suggest seriously poor housekeeping. I accept that it is possible that some, but by no means all, of these matters could have arisen on the weekend of 14 and 15 February 2015. However, there is no basis to conclude that the actions of Mr Grant and Mr Cooper in closing the site and pursuing this issue were unreasonable or vexatious.
• There is no doubt that at 1948 Cherryfield Avenue there were loose scaffolding pieces and tiles sitting on the top floor of the scaffolding. This is visible in the photos of Mr Hammon of 13 February 2015 and in the photos of Mr Cooper of 17 February 2015. Mr Hammon is of the opinion that these matters were not serious or in breach of requirements. I prefer the evidence of Mr Grant that these matters are clear breaches of requirements. The pile of tiles on the scaffolding are precarious and an obvious hazard. There is no basis to conclude that the actions of Mr Grant and Mr Cooper in closing the site and pursuing this issue were unreasonable or vexatious.
• I am satisfied that it was reasonable for the investigation to conclude that Mr Hammon had completed the National Safety Checks in the Clickhomes system to state that all OHS was compliant when this was not the case. There is no basis to conclude that the actions of Mr Grant and Mr Cooper in closing the site and pursuing this issue were unreasonable or vexatious.
• Mr Hammon accepts that he entered the site and the scaffold at 118 Wendyn Avenue despite the clear signs stating that this was not to occur. I also accept that Mr Grant reinforced this instruction. I understand that Mr Hammon is of the view that the problems with the scaffolding were not particularly serious but I am satisfied that it was a reasonable instruction. Although the investigators did not find all allegations to be substantiated, I am not satisfied that the closure of the site was unreasonable or vexatious
• I am satisfied that at Lot 280 Newbury Street the scaffolding was unsafe and there was a missing rail clearly visible in both Mr Hammon and Mr Cooper’s photographs. I am satisfied that there was a reasonable basis for the investigators findings in respect to this site. Although the investigators did not find all allegations to be substantiated, I am not satisfied that the closure of the site was unreasonable or vexatious
[69] I am not satisfied that the actions of closing the sites, conducting the investigation or issuing the warning involved unreasonable actions by Metricon or Mr Brand or Mr Grant.
[70] I am satisfied that Mr Hammon was justifiably aggrieved at the failure of Mr Grant or Mr Cooper to promptly advise Mr Hammon of the site closures and the reasons for them. Mr Grant considered that it was Mr Cooper’s role to do this and Mr Cooper did not do it in a timely fashion. Mr Grant should either have done it himself or made sure that Mr Cooper did it more quickly. However, there is no reason to believe that this was anything other than a “stuff up”.
[71] I am not satisfied that the requirement to complete the health and safety reports was unreasonable. I accept that Mr Hammon was under pressure. However, he and the other site managers were given reasonable notice of the need to complete the reports and Mr Cooper offered to provide him with assistance to complete the work.
[72] Mr Hammon was told that his current position in the South team was untenable. Mr Hammon agrees that he cannot continue to work under Mr Grant and Mr Cooper. Two options were put forward by Metricon. Mr Hammon does not agree to these options. One is to return to an estimating job which Mr Hammon says would be at a much reduced salary and the other is to be a site manager in an area which is in the northern suburbs and this would involve significantly more daily travel in the work assigned car. I can understand why Mr Hammon regards these proposals as a further punishment and as bullying behaviour. Given that all parties agreed that Mr Hammon could no longer work under Mr Grant and Mr Cooper a solution needs to be found. I am satisfied that Mr Hammon has been too upset to discuss options properly. I am satisfied that Metricon is open to discuss options and was not putting forward a final position. I am not satisfied that the response of Metricon was unreasonable behaviour in the circumstances. I urge Metricon to undertake that discussion with Mr Hammon following this decision.
[73] Mr Hammon complains that he has had his access to emails restricted since he received the warning. Mr Hammon has not worked since the time of the warning. I am satisfied that Metricon has been prepared to allow Mr Hammon access to materials necessary for his bullying case. It is reasonable for an employer to place some restrictions on remote access to emails in circumstances where the employee is not available to attend work.
[74] I am satisfied that Mr Hammon is suffering from Adjustment Disorder which was not present prior to 2011 and which directly relates to his experiences at work. I base my conclusions on observing Mr Hammon in the witness box and reading his submissions and also on the report of his treating psychologist dated 30 June 2015. I am therefore satisfied that the work place behaviour complained of by Mr Hammon created a risk to health and safety. That risk continues.
[75] I have adopted the approach to the legislative requirements in this matter as set out in the decision of Commissioner Hampton in Ms SB. 1
[76] I am satisfied and it was not in contention that Mr Hammon is a “worker” as defined by Section 789FC of the Act. I am also satisfied having considered all of the evidence that Mr Hammon reasonably believes that he has been bullied at work. I am satisfied that the preconditions for making an application as specified in Section 789FC have been met in this case.
[77] Based upon the requirements of Section 789FD and the considerations set out in the decision of Commissioner Hampton in Ms SB, to obtain orders Mr Hammon must establish that:
a) He was subject to unreasonable behaviour;
b) That the behaviour was repeated;
c) That he was subject to the repeated unreasonable behaviour while he was at work;
d) That the behaviour is not reasonable management action carried out in a reasonable manner;
e) That the behaviour created a risk to health and safety; and
f) If the orders are not made there is a risk that he will continue to be bullied at work.
[78] For the reasons discussed earlier I am satisfied that a number of incidents of unreasonable behaviour directed at Mr Hammon did occur. Those incidents were:
• Mr Fennessey’s actions in calling Mr Hammon a lackey.
• The failure of Mr Brand to act to remove the look alike board.
• Mr Grant’s actions in sending the email about stopping Mr Hammon’s pay.
• The arm wrestle incident at the 2014 end of year function and the failure of management to pursue this matter after finding it was substantiated.
[79] I am satisfied that these incidents did occur at work and were not reasonable management action carried out in a reasonable manner. However, these incidents were not the major issues raised by Mr Hammon. I have found those major issues did not constitute unreasonable behaviour. Mr Brand is only responsible for one of the incidents which I have found to be substantiated and this failure to act was not directed specifically against Mr Hammon. As there is no repetition, there is no basis for a bullying finding against Mr Brand. Mr Grant is only responsible for one of the incidents. By itself it is not particularly serious and it was not repeated and therefore there is no basis for a bullying finding against Mr Grant. I am not satisfied that Mr Fennessey, Mr Brand, Mr Grant and Mr Cooper were acting in concert to harm Mr Hammon. Considering the four substantiated matters as whole I am not, on balance, satisfied that the test of “repeated unreasonable behaviour while at work” is met.
[80] I therefore cannot make orders in this matter. However, I have pointed in this decision to some short comings in Metricon’s practices. I hope they will be addressed. I also recommend that Mr Hammon and Metricon meet to seek to resolve outstanding issues.
COMMISSIONER
Appearances:
Mr J Hammon represented himself.
Ms M Hotchkin appeared for the Respondent.
Hearing details:
2015
Melbourne
July 17 and 31
1 [2014] FWC 2104, [34] to [54].
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