[2016] FWC 5592 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s 789FC - Application for an order to stop bullying
Xiaoli Cao
v
Metro Assist Inc; Rita Wilkinson
(AB2016/258)
DEPUTY PRESIDENT SAMS |
SYDNEY, 19 AUGUST 2016 |
Application for a Fair Work Commission order to stop bullying – welfare services – long standing complaints – two investigations – external mediation – whether manager’s actions ‘reasonable management action taken in a reasonable manner’ – complaints not bullying – respondent’s policies complied with – investigations fair, reasonable and transparent – no risk to health and safety – application dismissed.
[1] Ms Xiaoli Cao (‘Ms Cao’ or ‘the applicant’), claims she has been bullied at work by her Manager, Ms Rita Wilkinson (‘Ms Wilkinson’). Ms Cao is employed by Metro Assist Inc. (‘Metro’ or ‘the respondent’), as a Tenants Advocate. She commenced employment with Metro in 2008. Her work involves providing welfare and support services to underprivileged and at-risk members of the community in inner and southwestern Sydney, largely through case management of clients of their particular housing or welfare issues.
[2] Ms Cao claims that her Manager has engaged in unreasonable behaviour towards her since 2013, which is said to include the following:
• Repeatedly exhibiting aggressive, humiliating, intimidating, belittling & retaliatory behaviour;
• Repeated and persistent undue criticism including inaccurate accusations about my quality of work;
• Repeatedly, intentionally and unreasonably disputing and delaying my entitlements;
• Repeatedly exhibiting rudeness and demeaning sarcasm;
• Repeatedly taking unreasonable management actions in an unreasonable manner;
• Repeatedly taking unreasonable administrative actions in an unreasonable manner;
• Repeatedly misleading staff and other team members;
• Repeatedly failing in her duty of care;
• Repeatedly and consistently treating me differently from other team members; and
• Repeatedly exhibiting mistrust resulting in my having a low self-esteem and a high sensitivity to my interpersonal issues;
[3] On 12 January 2016, Ms Cao filed an application with the Fair Work Commission (‘the Commission’) for orders to stop bullying under s 789FC of the Fair Work Act 2009 (the Act). Section 789FC of the Act reads 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.
[4] Ms Cao sought that the following orders be made by the Commission:
• An order to stop bullying;
• A formal written apology from Ms Wilkinson and Mr Bacchiella;
• For Metro to conduct training for all staff to further educate them regarding prevention and appropriate responses to workplace bullying as well as workplace rights;
• Additional training for Ms Wilkinson and Mr Bacchiella with regards to appropriate and effective management;
• Metro to develop comprehensive and meaningful workplace policy and procedures pertaining to workplace bullying with particular guidance from Safe Work NSW;
• Metro to review its industrial grievance policies and procedures to establish formal, impartial, transparent and external investigative measures into workplace bullying issues;
• Metro to establish fair policy and procedures in regards to workload allocation with particular focus on the re-distribution of casework;
• Continuation of existing interim reporting measures for three months whilst the aforementioned are enacted. Following this professional development, interim reporting measures may be removed and Ms Wilkinson may resume her role as my manager for a six month trial period;
• Akin to case Applicant v Respondent [AB2014/1052] after six months of direct supervision by Ms. Wilkinson, with the proviso no further unreasonable or bullying behaviour is exhibited, I reserve my workplace rights, but may consider pursuing an application to have the order to stop bullying revoked; and
• Any other orders which Fair Work Commission may deem reasonable and appropriate.
[5] On 20 January 2016, a response to the application was filed by Mr Lou Bacchiella, the Chief Executive Officer (CEO) of Metro. For present purposes, the response identified that Metro had conducted two separate investigations into Ms Cao’s complaints against Ms Wilkinson, both of which concluded that Ms Wilkinson had not behaved in the manner described by Ms Cao and that she had not been bullied by her. Notwithstanding these conclusions, both Ms Cao and Ms Wilkinson had agreed to participate in two mediation sessions conducted by a Community Justice Centre and they reached an agreement on 17 February 2015.
[6] Proceedings in this matter commenced on 17 February 2016, when the Commission convened a conference for the purposes of exploring a resolution of Ms Cao’s complaints and the apparent ongoing conflict between her and Ms Wilkinson. Regrettably, no resolution was able to be reached and the matter was listed for hearing on 31 May 2016. Directions were issued for the filing and service of evidence relied on by both parties in the arbitration. At the hearing, Ms Cao was represented by her daughter, Ms S Hardy, and Metro was granted permission to be represented by a lawyer, pursuant to s 596 of the Act. Mr R Hassall appeared for both Metro and Ms Wilkinson.
THE EVIDENCE
[7] The following persons provided written/oral evidence in the proceeding:
The applicant
[8] Ms Cao’s evidence was set out in a chronology of events with corresponding emails and other documents.
[9] Ms Cao claims that during 2012-13, Ms Wilkinson overburdened her with casework and additional shifts. She believed this arose from Ms Wilkinson’s decision to recruit unqualified persons to the team. She said that she became overwhelmed by the extra work and brought her concerns to Ms Wilkinson’s attention in numerous emails sent during 2013. She was also preoccupied with her ill parents in China. On 12 September 2013, Ms Wilkinson left two extra cases in Ms Cao’s pigeonhole, allegedly without consulting her. Ms Cao responded by refusing to take on the extra two cases. It was from this point on that Ms Cao alleges Ms Wilkinson began to bully and harass her.
[10] On 22 November 2013, Ms Wilkinson instructed Ms Cao to complete a task which Ms Cao felt was ‘unreasonable’. Ms Cao also felt Ms Wilkinson’s aggressive tone was intimidating and hampered her autonomy in the workplace. She sent an email to Ms Wilkinson explaining her position. On 3 February 2014, Ms Cao commenced five months’ unpaid leave in order to visit her sick parents in China.
[11] On her return in July 2014, Ms Cao said she requested and was refused a spread of work hours over more days. Despite being instructed not to work her preferred hours to attend training, Ms Cao ignored the instruction. Ms Cao claimed that on 24 July 2014, Ms Wilkinson shouted at her to ‘be independent’ after she was excluded from an email list. She believed this behaviour was shocking and said it caused her a great deal of emotional distress.
[12] On 1 August 2014, the applicant alleged that Ms Wilkinson interrogated her aggressively in front of other staff about the time taken to complete a task. She believed Ms Wilkinson was micromanaging her, which made her feel undermined and embarrassed. Ms Wilkinson allocated another worker’s case to her on 12 August 2014, ignoring her own request to reduce her workload. Ms Cao said Ms Wilkinson also embarrassed and humiliated her in a team meeting on 12 August 2014.
[13] On 12 September 2014, Ms Wilkinson accused Ms Cao of ‘wrongdoing’ in respect of entering case details in the system and demanded she write up detailed case notes. Ms Cao did not believe this was necessary and told her so.
[14] In late September 2014, there were requests from Ms Wilkinson in respect of Ms Cao’s travel expenses and reimbursements. In an email to Ms Wilkinson copying in other employees, Ms Cao accused Ms Wilkinson of bullying her.
[15] Ms Cao’s complaints about Ms Wilkinson reached a formal point when she lodged a grievance with the then-CEO on 14 October 2014. On 14 November 2014, the new CEO Mr Bacchiella responded as follows:
‘Dear Xiao Li,
Re: Grievance
I am writing to acknowledge our discussion on the 3rd of November regarding the grievance you lodged against yours [sic] supervisor, Rita Wilkinson, and the various elements which you outlined in your complaint.
In follow up, Nina Shahi [the former CEO] and I met with Rita on the 6th of November and explained the nature and detail of the complaint and provided her with an opportunity to address the points you raised, namely:
• unreasonable work expectations
• aggressive ad [sic] intimidating conduct
• persistent and undue criticism including inaccurate accusations about the quality of work
• intentional and unreasaonable delay of workers’ entitlements
Rita provided a response to each point and assured us that there was no malice towards you, and she expressed a differing opinion on the points raised in the grievance.
Having considered the matter we believe that the best way forward is to introduce a mediation process with an external mediator where the matters can be addressed and hopefully resolved.
I would be grateful if you could please let either me or Nin [sic] know if this is acceptable to you. If so, Nina can make the necessary arrangements and determine a timeframe that is mutually suitable for mediation to commence.’
[16] A mediation session was held on 20 January 2015. The next day, Ms Cao claimed Ms Wilkinson belittled her in front of other team members by accusing her of providing a client with inaccurate advice. Ms Cao also believed Ms Wilkinson had instructed the receptionist to record the times she left the office for a break. On 5 February 2015, Ms Cao complained to Mr Bacchiella about Ms Wilkinson’s continued bullying.
[17] On 17 February 2015, an agreement was reached in mediation as follows:
‘1. Rita and Xiaoli have today discussed their issues and concerns at length, and have agreed to work in harmony in future.
2. Xiaoli and Rita agree to communicate with one another in a polite and respectful manner, and assure each other that the past will not be repeated.
3. Rita and Xiaoli agree that once Metro Assist policies and procedures regarding mileage have been finalised, mileage claims will be assessed in accordance with these policies and Google as a baseline.
4. Xiaoli and Rita agree that they will mark their times in and out on the board whenever its [sic] possible.
5. Rita and Xiaoli agree that any clarification and misunderstanding between them will be discussed in private.
6. Xiaoli and Rita agree that all issues and concerns be dealt with as soon as possible in an appropriate workplace manner.
7. Rita and Xiaoli agree that when Rita requests to see a file, she will explain the reason to Xiaoli. Otherwise, the request will be for supervision or archiving.
8. Both parties agree that if need arises in future they can return to mediation.
9. Rita and Xiaoli agree that a copy of this Agreement be given to Lou Bacchiella.’
[18] Ms Cao prepared a background paper of her understanding of the above agreement and sent it to Mr Bacchiella and Ms Wilkinson. On 27 April 2015, Ms Cao believed Ms Wilkinson was trying to allocate another caseworker’s work to her.
[19] After that date it was not until 17 November 2015 that a further incident occurred, in which Ms Wilkinson accused her of being disrespectful for not responding to her emails. On 1 December 2015, Ms Wilkinson was alleged to have aggressively accused Ms Cao of leaving work early. On 3 December 2015, Ms Cao wrote to Mr Bacchiella lodging a second complaint regarding those incidents and accusing Ms Wilkinson of breaching the mediation agreement. On 11 December 2015, Ms Wilkinson queried the hours Ms Cao spent at the New South Wales Civil and Administrative Tribunal (NCAT) on Wednesday 25 November 2015 (9:15 am to 6:15 pm) and demanded an explanation.
[20] On 14 December 2015, Mr Bacchiella and Ms Lisa Wilkinson (no relation) from Human Resources interviewed Ms Cao as part of their investigation of Ms Cao’s complaints. Ms Cao prepared her own notes of the meeting after disputing the notes taken by the respondent. Her notes indicate her intention to take legal advice. Ms Cao said that on 22 December 2015, Ms Wilkinson attacked her for ‘doing things differently’ in front of team members.
[21] On 7 January 2016, Ms Cao was advised of the outcome of the investigation as follows (although the letter is dated 22 December 2015 and the applicant was on leave from 23 December 2015 to 6 January 2016):
‘Following our meeting on 14th December 2015, we have investigated your complaints against Rita Wilkinson and I wish to advise you of the outcome of this and the next steps going forward.
The allegations you made were discussed in detail with Rita Wilkinson. Specifically, in relation to your allegation of bullying, Ms. Wilkinson refutes these claims and insists that she does not have different expectations of you compared to the rest of the Tenancy Team.
Overall, we find that Ms. Wilkinson is enacting organisational policies and procedures with regards to leave requests, time in lieu accrual and usage, and monitoring the work of her team. As you will recall, there has been extensive consultation around these issues.
I acknowledge that situations may arise at the last minute that are outside your control, as reflected in the circumstance of being asked to represent a client at the Tribunal where it was not possible to obtain prior approval for additional hours worked. However, it is not unreasonable for supervisors to request the whereabouts of workers at any given time. This is critical in terms of the organisation’s duty of care to its workers.
As a forward measure, we have asked Ms. Wilkinson to attend management/leadership skills training in early 2016. We will also arrange external peer supervision for the team in 2016 and monitor the situation over the coming months.’
[22] On 11 January 2016, the applicant advised Mr Bacchiella that ‘I am disappointed, disillusioned and totally dissatisfied with the investigation and outcome…’. Soon after this, Ms Cao obtained medical advice following the stress and anxiety she was experiencing. No workers’ compensation claim was made.
[23] After conferences with the Commission with respect to Ms Cao’s General Protections claim, Johns C recommended on 19 January 2016:
‘Further, to the conciliation conference conducted in the Fair Work Commission (Commission) today, the Commission recommends that both parties give further consideration to a basis upon which the working relationship between them might end by way of a confidential mutual agreement (including both parties committing to not disparaging the other after the employment relationship ends).’
[24] As a result of advice from her doctors, Ms Cao requested and was granted a reduction in her hours of work from 28 hours to 14 hours a week from 18 May 2016 to 18 November 2016. It was agreed that she would work on Monday and Thursday one week and Monday and Friday in the alternate week. However, Ms Cao was still required to report to Ms Wilkinson, given the small team structure involved.
[25] In cross-examination, Ms Cao said she works in a team of five and she had reported to Ms Wilkinson since she first commenced employment in 2008. Ms Wilkinson manages five areas in the service, within which 10 employees are managed by her. Ms Cao agreed that before September 2013, she had always accepted extra cases allocated to her by Ms Wilkinson, but had not accepted extra cases since then.
[26] In respect of being ‘ordered’ by Ms Wilkinson to write a letter and show it to her on 22 November 2013, Ms Cao agreed she had already intended to write the letter anyway. She said it was ‘unreasonable’ for Ms Wilkinson to insist she show her the letter and she wanted to know why. Ms Cao believed that by Ms Wilkinson asking her about a particular case, this was ‘intrusive’. It was ‘unreasonable’ for Ms Wilkinson to disagree with her on how to handle a case.
[27] Ms Cao gave evidence that the respondent had accommodated her request for five months’ unpaid leave. She denied that when she returned, she merely returned to normal duties. She conceded that her role required her to take on urgent cases at short notice, yet she only took on two extra cases in two and a half years.
[28] It was Ms Cao’s evidence that Ms Wilkinson had spoken to her aggressively and shouted. She believed it was unreasonable to be asked to complete case notes, which were unnecessary. Ms Cao accepted that she had been paid all her outstanding expenses.
[29] Ms Cao acknowledged that the outcome of Mr Bacchiella’s first investigation was that she and Ms Wilkinson would engage in mediation conducted by a Community Justice Centre. Despite being aware the mediation was confidential, she prepared a report about it and sent it to Mr Bacchiella. She denied her report undermined Ms Wilkinson or that she was spreading negative rumours about Ms Wilkinson based on anonymous comments made about 5 years ago. Ms Cao said that someone had called Ms Wilkinson ‘two-faced’ without naming the person or the circumstances. Nevertheless, this confirmed her views of Ms Wilkinson.
[30] Ms Cao was asked about an email she wrote, but only sent to herself, in which she described Ms Wilkinson as having ‘you obtain your current position from doing office politics’.
[31] Ms Cao conceded Mr Bacchiella had agreed to her request for counselling and she participated in three sessions.
[32] Ms Cao said that after being dissatisfied with the respondent’s second investigation, she lodged a General Protections claim and a complaint to WorkCover NSW (now Safe Work NSW). Legal Aid had advised her to lodge an anti-bullying claim and a General Protections application. She believed her Safe Work NSW complaint was still pending. Ms Cao agreed that as a result of conciliation before Johns C, she had interim reporting arrangements and had made a request to work two days, rather than four days a week, which had been agreed to.
[33] In re-examination, Ms Cao raised the difference in her caseload compared to that of Ms Rachael McCormick. Ms Cao claimed that Ms Wilkinson did nothing about the disparity in case loads. Ms Hardy put a number of hypothetical questions to Ms Cao which were irrelevant.
Mr Bacchiella
[34] Mr Bacchiella has worked for the respondent in management roles since October 2010. He is directly responsible for six Managers and Team Leaders and indirectly for 55 full-time, part-time and casual employees, and a number of volunteers.
[35] Mr Bacchiella’s evidence detailed the role of Metro and its funding sources from various NSW Government Departments and Agencies. He attached a compendium of the respondent’s policies dealing with governance and human resource matters, including bullying and harassment. The Anti-Bullying policy is annexed to this decision as Annexure A. He said that the respondent offers comprehensive training on these policies which both Ms Cao and Ms Wilkinson had attended. Mr Bacchiella set out the role and duties of both Ms Wilkinson and Ms Cao.
[36] Mr Bacchiella described receiving Ms Cao’s first complaint on or around 27 October 2014 and his investigation of the allegations against Ms Wilkinson. He interviewed both Ms Cao and Ms Wilkinson.
[37] Ms Cao complained that:
‘(a) [she] had been allocated an excessive caseload at a time when she was experiencing family issues (she had just returned from 5 months unpaid leave during which her father had passed away, and her mother had Alzheimer’s);
(b) Ms Wilkinson was inflexible, dictatorial and had an authoritative style; and
(c) [she] was still waiting on a travel claim to be process, and that there had been a previous delay in processing leave pay.’
[38] Mr Bacchiella determined that:
‘(a) the allegations were not substantiated because, in my view, Ms Wilkinson’s conduct at all times:
(i) was reasonable;
(ii) fell within the scope of her role as Ms Cao’s manager…
(iii) was not aggressive, intimidating or unduly critical;
(iv) did not intentionally delay payment to Ms Cao; and
(v) did not create a risk to the health and safety of Ms Cao or any other person.
(b) Notwithstanding my decision that Ms Wilkinson acted appropriately, I decided that the issues raised… would be appropriate for mediation because it was, in my view, important that Ms Wilkinson and Ms Cao be able to work together amicably on an ongoing basis.’
[39] Mr Bacchiella was aware that Ms Cao and Ms Wilkinson attended two mediation sessions and an agreement was reached. Without requesting it, he received an email from Ms Cao on 22 July 2015 setting out her views on the mediation.
[40] Mr Bacchiella said that in late February 2015, Ms Cao requested an external counsellor paid for by the respondent. The respondent provided her with the names of three independent psychologists and agreed to pay for three sessions. However, Ms Cao did not pursue any arrangements for a session with the named psychologists.
[41] It was Mr Bacchiella’s evidence that Ms Wilkinson had come to him expressing difficulty with managing Ms Cao without it being interpreted by Ms Cao as ‘bullying’. He believed Ms Wilkinson’s requests were reasonable and similar to requests made to other staff, and no other staff member had made complaints about Ms Wilkinson. On 5 March 2015, Ms Wilkinson informed Mr Bacchiella of the adverse impact Ms Cao was having on other team members.
[42] In December 2015, Mr Bacchiella received emails from Ms Cao in which she alleged that Ms Wilkinson had breached the mediation agreement and complained of further bullying behaviour by Ms Wilkinson. This became the second complaint, which he investigated with Ms Lisa Wilkinson, Human Resources Manager. In a meeting with Ms Cao in which she set out her allegations, Mr Bacchiella offered further mediation. Ms Cao said she did not want to report to Ms Wilkinson, had consulted a solicitor and that Ms Wilkinson should undergo leadership training. Mr Bacchiella advised her she needed to continue to report to Ms Wilkinson, but she need only do so by email.
[43] Ms Wilkinson met with Mr Bacchiella and Ms Lisa Wilkinson and denied ‘targeting’ Ms Cao. She explained that:
‘(i) I asked [Ms Cao] to attend to the Tenancy Intake Line, because Mr Ahearn, had an urgent personal matter to attend to.
(ii) On the last day of the mediation sessions of the earlier complaint, [Ms Cao] wanted me to sign a statement admitting I had bullied her. Both mediators expressed dismay and later said to me that [Ms Cao] was “difficult” and “did not like to be supervised”.
(iii) I have to treat [Ms Cao] differently to the other team members because I cannot ask her the simplest of things without being accused of bullying. I feel her demeanour changed after the departure of Mukesh. (Mr Mukesh Mahajan is a former employee.)
(iv) I want [Ms Cao] to abide by the terms of the organisation. For example, she took sick leave the week before and still has not submitted a leave form.’
[44] Mr Bacchiella concluded that:
‘(a) There was insufficient evidence provided by Ms Cao or Ms Wilkinson to constitute a claim of bullying, and Ms Lisa Wilkinson and I were satisfied that Ms Wilkinson had not asked for anything extraordinary of Ms Cao, or treated her different to the way she treated other team members. To our knowledge, there had not been any complaints against Ms Wilkinson by other team members.
(b) Ms Wilkinson’s actions were reasonable and fell within the scope of her role and did not pose a risk to the health and safety of Ms Cao or any other person.
(c) Ms Wilkinson was upholding the organisation’s policies and procedures relating to leave entitlements and WHS which had been widely communicated to the whole organisation through staff in team meetings and in email notifications.
(d) Managers had participated in training around WHS, including bullying. Staff had participated in internal training conducted by Mr Tony Tonous, the WHS Officer, on several occasions and locations to ensure staff we [sic] were aware of policies and procedures. Ms Cao had attended such training.’
[45] Notwithstanding the above, Ms Wilkinson agreed to undertake further leadership training and that external peer support would be offered to the team if it was being adversely affected. Ms Cao was advised of this outcome on 22 December 2015.
[46] On 12 January 2016, Ms Cao filed a General Protections claim. In light of this, Mr Bacchiella decided to have Ms Cao report to Mr Paul Ahearn until the matter was completed. As a result of a conference, convened by Johns, C on 19 January 2016, the Commission issued the recommendation set out at paragraph [23] above. Mr Bacchiella believed that the interim reporting arrangements were not sustainable in the long term as the team was small and consisted of part-time employees.
[47] A third complaint was received from Ms Cao alleging ‘harsh’ treatment by Ms Wilkinson during a meeting which Mr Bacchiella attended on 22 December 2015. During the meeting, Ms Cao expressed her belief that her approach about ‘cold calls’ to the office was correct, despite it being contrary to policy. Mr Bacchiella did not believe Ms Wilkinson’s comments were inappropriate or constituted bullying. No further action was taken in respect of the third complaint as the application for an order to stop bullying, overtook it. Mr Bacchiella said that on 22 April 2016, he met with a Safe Work NSW inspector concerning the same complaints made by Ms Cao against Ms Wilkinson.
[48] In Mr Bacchiella’s view, Ms Cao had not and is not being bullied by Ms Wilkinson. In any event, the respondent has put in place a number of measures to minimise any risk of bullying and to ensure management action is reasonable. These include:
(a) Regular supervision meetings which I [Mr Bacchiella] undertake with managers including Ms Wilkinson in which we discuss any issues relating to the respective teams and their performance. Managers are always able to consult me between supervisions [sic] meetings as the need arises.
(b) Issues pertaining to HR, WHS and staff matters are also discussed at regular Managers Meetings which are held fortnightly.
(c) Making available comprehensive policies and procedures that address all aspects of the work environment, including appropriate work conduct, management and bullying and harassment. …
(d) Training managers and other employees, including in bullying and harassment, managing difficult people and WHS…
(e) Providing Ms Wilkinson with further and additional training in leadership and management…
(f) Making available external peer supervision as outlined… above.
[49] Mr Bacchiella was confident that Ms Cao’s complaints were properly investigated and had not revealed any bullying or unreasonable requests by Ms Wilkinson. Ms Wilkinson’s requests to Ms Cao were in accordance with the respondent’s policies. He expressly rejected criticism of him by Ms Cao over the investigations and the efforts to minimise any impact on her health. He had arranged for counselling and different interim reporting. He noted Ms Cao’s medical evidence was both retrospective and belated.
[50] The respondent had arranged for mediation and for Ms Wilkinson to attend leadership training, which she undertook voluntarily. Support and assistance, including compassion for Ms Cao’s request for five months’ leave and working two days a week, had been provided. Mr Bacchiella believed that Ms Wilkinson had merely exercised her judgment and responsibilities as a Manager, while Ms Cao had continuously refused to respond to, or comply with reasonable requests with respect to workload, leave, expenses and adherence to the respondent’s policies and procedures.
[51] Mr Bacchiella believed that the respondent takes its duty of care responsibilities seriously. He noted that no one else had complained about Ms Wilkinson or himself. He stated that Metro would not be apologising to Ms Cao or have her supervised by someone else. There was no one else within a small team who had the skillset or expertise in tenancy issues to do so.
[52] In oral evidence, Mr Bacchiella said that almost immediately after he became the CEO, he had received complaints from Ms Cao about Ms Wilkinson. These were only allegations at the time, and he took steps to investigate the complaints. He did not believe there was any direct threat to Ms Cao’s health at the time, as the complaints spanned a considerable period of time.
[53] Mr Bacchiella acknowledged that he had introduced interim reporting measures in January 2016 as a result of Ms Cao’s s 372 General Protections application to the Commission. Mr Bacchiella recalled that there had been a mediation agreement between Ms Cao and Ms Wilkinson and then a period of almost a year where no complaints were made.
[54] Mr Bacchiella agreed that he had not interviewed Ms Cao’s fellow team members, who had expressed discomfort over a meeting he had attended in which Ms Wilkinson accused Ms Cao of giving incorrect advice. One of the employees, Ms Botica, actually sought advice from the relevant union. He agreed he met only with Ms Cao and Ms Wilkinson, but he had been present in any event and had observed what had occurred. He could not recall any accusation being made against Ms Cao of providing incorrect advice to a client. Mr Bacchiella also recalled a team meeting concerning the policy of handling ‘drop-in’ clients. Ms Wilkinson had simply asked Ms Cao if she had departed from the policy. Mr Bacchiella believed the policy needed to be reviewed to ensure consistency when another team member (Ms Paridis) expressed support for Ms Cao’s handling of the ‘drop-in’ issue.
[55] Mr Bacchiella was asked about Ms Wilkinson’s evidence and said that ‘Xiaoli was not happy that I asked her to justify the $30 reimbursement for two days per month and reacted by screaming at me.’ He agreed that this might be seen to be workplace harassment (if true), but he did not believe he needed to take direct action, as this was in the context of Ms Wilkinson’s concerns about her own ability to manage Ms Cao. He would be reviewing all the allegations.
[56] As to Ms Cao’s request to reduce her hours to 14 hours a week, Mr Bacchiella said that he did not agree to Ms Cao being supervised by someone other than Ms Wilkinson. However, supervision was only by email reports to Ms Wilkinson and not face-to-face contact. It was inappropriate for Mr Ahearn to supervise her on an ongoing basis, as he had his own significant workload.
[57] In re-examination, Mr Bacchiella explained that, with respect to the incident of Ms Cao alleging that Ms Wilkinson screamed at her, Ms Wilkinson had not requested any action be taken and it became part of the wider investigation involving Ms Cao’s complaints.
Ms Wilkinson
[58] Ms Wilkinson has been employed by the respondent since 1999. She commenced her role of Manager, Tenancy and Financial Inclusion in August 2014. Ms Wilkinson supervises over 10 staff members, who work a mix of full-time, part-time and casual hours. Ms Wilkinson said that Ms Cao’s role is responsible for providing:
‘ (a) Information and advice to tenants by telephone and face to face;
(b) duty advocacy at Liverpool NCAT one day per fortnight;
(c) extended assistance to tenants through writing letters, drafting and preparing applications to NCAT and Housing Appeals Committee;
(d) representation through written submissions and attendances at NCAT and HAC; and
(e) community education to other community organizations and tenants.’
[59] Ms Wilkinson said that during 2015 and 2016, Ms Cao had taken over 240 hours of annual leave and personal/carer’s leave. Two other team members had taken considerable hours of personal leave, meaning she had to assume ongoing casework in addition to her role as Manager. Ms Cao has reported to Ms Wilkinson since 2008, and until late 2013, they had a good working relationship. In late November 2013, Ms Wilkinson had queried Ms Cao about her hours of work at a NCAT hearing and the need to contact her if she left work early.
[60] Ms Wilkinson set out the various allegations made against her by Ms Cao in late November 2014. Ms Wilkinson denied behaving aggressively towards or intimidating Ms Cao, and denied that her requests of Ms Cao amounted to bullying. Ms Wilkinson believed Ms Cao was reluctant to provide or discuss files, and resented being asked about her files. Ms Wilkinson said that Ms Cao had a history of non-attendance at staff forums. She denied shouting at her, speaking abruptly to her or micromanaging her.
[61] As to Ms Cao’s claim that she was overworked, Ms Wilkinson said that Ms Cao had never provided her with details of her ongoing cases, and refused to complete casework summary reports, which were needed to ensure cases were equitably allocated across the team. Ms Wilkinson denied requiring Ms Cao to maintain a higher standard than others and denied she delayed processing her reimbursement claims in an attempt to bully her.
[62] Ms Wilkinson said she was surprised that shortly after their mediation agreement, Ms Cao sent her an email raising the same issues discussed at the mediation, and other matters. Ms Cao accused her of abusing her power, making ridiculous demands and bullying. Ms Wilkinson believed Ms Cao had no intention of honouring the mediation agreement and would continue to accuse her of bullying. Ms Wilkinson believed Ms Cao’s letter to Mr Bacchiella about the mediation was designed to undermine it.
[63] On our around 14 December 2015, Ms Cao made a second list of complaints against her. Ms Wilkinson denied shouting at Ms Cao, acting aggressively or treating her differently to her detriment. Ms Wilkinson believed Ms Cao’s language about her was ‘mean and disparaging’. Ms Wilkinson found Ms Cao’s claim of her being a racist was without merit and offensive. Rather, Ms Wilkinson believed she was being bullied by Ms Cao’s continued false allegations and her refusal to accept any performance direction or management from her. It was Ms Cao who had, on occasions, yelled at her.
[64] Ms Wilkinson was of the opinion that Ms Cao had refused to accept her as a manager since August 2014 and this explained her behaviour and attitude towards her. As for being overwhelmed by work, Ms Wilkinson said Ms Cao had never informed her of work-related stress or provided her with medical evidence. When she returned from five months’ leave, she took over the same number of files that a locum had attended to in her absence, without complaint.
[65] Ms Wilkinson denied Ms Cao’s version of the meeting on 22 December 2015. Rather, Ms Cao became worked up and quite emotional. Ms Wilkinson tried to get her to slow down by saying ‘whoa… whoa… whoa…’, not ‘wow… wow… wow…’. She had not insulted her. Ms Wilkinson recalled one occasion on which she had asked the receptionist when Ms Cao had returned from lunch, as she had noticed Ms Cao had been taking extended breaks to which she was not entitled.
[66] In relation to the orders sought by Ms Cao, Ms Wilkinson said:
‘(a) I deny that I have bullied Ms Cao and, in my view, an order to stop bullying should not be made;
(b) I do not consider that I have behaved in a way for which I should apologise to Ms Cao;
(c) I believe that Metro has already implemented comprehensive training and policies/procedures in relation to appropriate workplace behavior, bullying and the management of grievances;
(d) Whilst I have undertaken supervision training in the past, I am undertaking further training this year;
(e) A system exists in relation to the management and allocation of case work files within TAAS [the Tenants’ Advocacy and Advice Service];
(f) It is not practical to continue an interim layer of management between Ms Cao and myself in such a small team; and
(g) I do not believe I require direct supervision in my supervision of staff under my management.’
[67] In cross-examination, Ms Wilkinson said that she had requested Ms Cao to prepare case notes in November 2013 concerning a particular rental repayment agreement, so that if someone needed the information and she was not there, it would be on file. To date, Ms Cao had not provided the information.
[68] Ms Wilkinson said that Ms Cao’s request for reduced daily hours was not consistent with the service being funded to operate between 9:00 am and 5:00 pm. The policy had changed in 2015. In any event, this decision was made by the CEO, and time off in lieu had to be approved. Ms Cao refused to accept the direction and took the time off in lieu she had wanted anyway.
[69] With respect to the reimbursement of expenses, Ms Wilkinson went to the accounts manager after noticing some discrepancies and then raised it with Ms Cao. Ms Wilkinson conceded there was a delay in approval being finally given. With respect to Wi-Fi, Ms Wilkinson had asked her what it was for and Ms Cao did not reply or provide any explanation.
[70] As to the ‘drop-in’ client policy, Ms Wilkinson said that the policy was started in August 2014, and in December 2015, Ms Cao had informed the team at a meeting that she was doing something different to what the policy required. As a result, a review of the policy was to be undertaken in 2016.
[71] Ms Wilkinson said that she had noticed that it was not unusual for Ms Cao to not be in her office in the afternoon and that she would work over lunch and go out around 3:00 pm and not return. Ms Wilkinson took no action over this issue.
[72] Ms Wilkinson said that in making comparisons about workload, it is necessary to get information from team members as to ongoing open cases, types of cases and their complexity. Ms Cao had made comments about other team members’ workloads, when they had expressly told her not to do so.
[73] Ms Wilkinson acknowledged that Ms Cao’s last performance appraisal was in 2014. She said this was because it had become increasingly difficult to communicate with Ms Cao and she would not follow her instructions.
SUBMISSIONS
For the applicant
[74] Ms Cao relied on the definition of bullying found in s 789FD of the Act, and on a decision of Hampton C in Re: SB [2014] FWC 2104, to establish that Ms Wilkinson’s behaviours were unreasonable, repetitive and amounted to bullying (as defined). She described the specific behaviours thus:
‘a. Excessive workload expectations and disproportionate allocation of cases by Ms Wilkinson is unreasonable behavior as it was enacted without consideration or consultation with me with regards to my existing workload and capacities to handle additional cases. Ms Wilkinson’s behavior deliberately ignores the stress and exhaustion I have been experience [sic] due to my being over loaded with work. I tis also a form of differential treatment as it takes advantage of my competency by Ms Wilkinson intentional [sic] in distributing the work unequally.
b. Micro-managing and surveillance of me is unreasonable behavior as it removed my independence and autonomy in making decisions (which is an essential requirement under the job description), fostering a culture of suspicion and paternalism.
c. Belittling, humiliating and demeaning behavior towards me including persistent and undue criticism including inaccurate accusations about my quality of work is unreasonable behavior as it is not a form of performance management, but is aimed at humiliating me.
d. When this behavior occurs in the presence of co-workers it serves to diminish my reputation.
e. Deliberately creating barriers to and delaying my entitlements constitutes unreasonable behavior as it violates my work rights and impacts my livelihood.’
[75] Ms Cao submitted that these behaviours exposed her to actual harm to her health and safety, as demonstrated by the medical reports from her general practitioner and psychologist. Ms Cao argued that there was a causal link between her symptoms and the workplace stress she was experiencing due to Ms Wilkinson’s bullying.
[76] Ms Cao set out the relevant provisions of the Work Health and Safety Act 2011 (NSW) to argue that Mr Bacchiella had not fulfilled his duty of care to her by failing to provide interim reporting measures and ‘deliberately conducted a shallow and biased investigation’. By so doing, Mr Bacchiella knowingly allowed the risk of harm (to her) to be perpetuated.
[77] Ms Cao rejected the respondent’s claim that it was not practical to change her reporting arrangements because interim reporting arrangements had been put in place in January 2016 and continued to operate. She said that despite Mr Bacchiella’s knowledge of the risk to her health and safety after repeated communications with him, he took no steps to minimise the risk and effectively facilitated the bullying towards her.
[78] Ms Cao opined that despite all the investigations, correspondence, mediation and discussions, Mr Bacchiella and Ms Wilkinson maintained her claims were baseless. Their failure even to acknowledge her grievances justified the making of the orders sought. She believed the orders were the only mechanism available to protect her from the repeated unreasonable behaviour of Ms Wilkinson.
[79] Ms Cao submitted that she had demonstrated that ‘the respondent’s behaviour fundamentally lacked any form of intelligible justification and therefore must be understood as bullying’. She contended that the respondent had disguised the unreasonable nature of its behaviours as management action and had falsely accused her of incompetence, wrongdoing and inappropriate behaviour to hide its ‘abuses of power’ as corrective action.
[80] Ms Cao categorised the accusations made against her as:
● Causing harm to Ms. Wilkinson’s safety, health and well-being;
● Inappropriate behaviour including screaming;
● Harassment and pressuring of other workers to collude against and thereby subvert the authority of Ms. Wilkinson;
● Underperformance by undertaking only one ongoing case, compared to the average six to ten;
● Providing incorrect advice to tenants;
● Failing to fulfil the requirements for case-note recording;
● Repeated breaching of policy; particularly in regards to time in lieu, leave requirements and handling drop-in clients;
● Accessing petty cash without approval;
● Taking excessive and unentitled breaks; and
● Over-claiming mileage reimbursement.
[81] If these allegations were true, then the respondent had valid grounds for her dismissal. Ms Cao rationalised that since she had not been disciplined, let alone dismissed, and there was no evidence to support these allegations, that it really demonstrated what lay behind the respondent’s unreasonable actions. Ms Cao concluded that these allegations were malicious and libellous, and constituted further examples of bullying against her.
For the respondent
[82] Mr Hassall submitted that Ms Cao had not been bullied within the meaning of Part 6-4B of the Act in that:
‘2.
3. The Respondent has policies, procedures and training programs in place in order to minimise the risk of bullying in its workplace.
4. Accordingly, it is submitted that:
● the applicant is not entitled to an order to stop bullying;
● the Fair Work Commission… should refrain from making an order to stop bullying; and
● the Commission should dismiss the application.’
[83] Mr Hassall set out the history of the applicant’s complaints against Ms Wilkinson and the actions taken by Mr Bacchiella to investigate her numerous complaints. Mr Bacchiella found that Ms Wilkinson had acted:
Despite his conclusions, Ms Cao disputed the outcome of his investigations and filed a s 372 (General Protections) application and a bullying complaint with Safe Work NSW.
[84] Mr Hassall said that the issues in this case were, firstly, whether Ms Wilkinson’s actions were reasonable management action carried out in a reasonable manner and, if the Commission were to find it was not, whether her actions amounted to bullying and were at risk of continuing. Mr Hassall submitted that ‘unreasonableness’ is a high threshold at law and the test of ‘reasonable management action’ is likely to mean:
[85] Mr Hassall said the onus of proof was on Ms Cao to demonstrate that the management action lacked any evident and intelligible justification. The test was an objective one.
[86] Mr Hassall referred to Ms Cao’s own evidence of being dissatisfied with Ms Wilkinson, her refusal to comply with her instructions and her disregard for the respondent’s policies and procedures. This included the following:
‘a. admissions that “to do things differently is not mean (sic) disrespecting your instruction, only means doing things effectively, especially on such minor matters”, and
b. challenging Ms Wilkinson’s authority, for example by:
i. stating “you had confirmed that case summary was introduced by you for the purpose of allocate (sic) your case at mediation. I have said unless there is a fair system of case allocation, I refuse to do it”
ii. disobeying a reasonable and lawful direction regarding use of [time off in lieu] to obtain shorter days, then alleging the direction was bullying despite Ms Wilkinson providing a prior explanation as to why the Applicant would not be permitted to work shorter days, and
iii. stating “[R]egardless, I agreed if you want me to bring any of my file to you I request to be provided with a valid reason, otherwise you may access the files yourself anytime without wasting my time by needing to deliver them”.
After returning from extended leave in mid-2014, Ms Cao continued this type of behaviour and, in effect, undermined Ms Wilkinson’s management. That behaviour, on Ms Cao’s own evidence includes Ms Cao referring to herself as “always being friendly, respectful, dedicated and hardworking” and:
a. referring to Ms Wilkinson as:
i. having obtained her “current position from doing office politics”
ii. abusing “your power on certain individual for rediculiourse (sic) demand. The conclusion is you have been unreasonably, over excise (sic) your given power to bully me”, and
iii. having “deliberately falsify the truth to disparage others”
b. suggesting Ms Wilkinson “undertake relevant training to equip yourself with skills that match your position as a team leader”
c. suggesting Ms Wilkinson’s “initial insistence upon a statement of usage” was “ridiculous”
d. alleging that “… this adverse treatment I have been receiving from Ms Wilkinson is for my being Chinese background in the team”, and
e. stating “for this type of ongoing behaviour of Ms Wilkinson I have lost faith in her. I believe that for her ongoing behaviour my relationship with Ms Wilkinson is much damaged”.’ (references omitted)
[87] Mr Hassall put that the respondent had acceded to Ms Cao’s requests where possible and implemented measures to rebuild the relationship between Ms Cao and Ms Wilkinson. However, the respondent was not prepared to demote Ms Wilkinson in favour of Ms Cao’s preferred manager. Ms Cao reacted adversely to every attempt to obtain information from her and whenever she was questioned. In the context of the operational requirements of the business, its budgets and operational hours, Ms Cao’s unreasonable requests could not be accommodated. Finally, Mr Hassall said that the application should be dismissed as Ms Cao had not been subject to workplace bullying and was not at risk of bullying.
CONSIDERATION
Statutory provisions and relevant principles
[88] Section 789FD of the 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.
[89] Section 789FF deals with the making of orders by the Commission. It is set out as follows:
789FF FWC may make orders to stop bullying
1. If:
(a) a worker has made an application under section 789FC; and
(b) the FWC is satisfied that:
(i) the worker has been bullied at work by an individual or a group of individuals; and
(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;
then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.
2. In considering the terms of an order, the FWC must take into account:
(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body--those outcomes; and
(b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes--that procedure; and
(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes--those outcomes; and
(d) any matters that the FWC considers relevant.
[90] There is no dispute that Metro is a constitutionally-covered business for the purposes of being a respondent to an application under s 789FC of the Act. Further, there is no doubt that Ms Cao is a worker for the purposes of s 789FC(1) of the Act and that the incidents alleged to constitute bullying occurred while Ms Cao was ‘at work’. However, I note that the incidents in 2013 obviously occurred before the commencement of Part 6-4B of the Act on 1 January 2014. In accordance with the Full Bench decision in McInnes [2014] FWCFB 1440, incidents of alleged bullying behaviour occurring before the commencement of Part 6-4B are able to be taken into account in proceedings brought under s 789FC of the Act, conditional upon the alleged bullying behaviour continuing beyond 1 January 2014.
[91] While strongly denying the allegations of bullying, the respondent did not contest Ms Cao’s belief that she has been bullied at work. There is no suggestion that Ms Cao’s ongoing employment is threatened by dismissal, or that she intends to resign, or that either party wishes to otherwise bring her employment to an end. As I understand it, Ms Cao remains ‘at work’, albeit under an agreed arrangement for two days a week and under a different interim reporting arrangement until this matter is concluded. This means that Ms Cao must not only establish that she has been bullied at work within the meaning of s 789FC, but that there is a risk to her health or safety which justifies orders being made by the Commission under s 789FF of the Act.
[92] For the above reasons, I am satisfied that Ms Cao’s application under s 789FC is a valid application for determination by the Commission.
[93] There is no doubt that the numerous incidents, occurring over almost three years and alleged by Ms Cao to constitute examples of her being bullied by Ms Wilkinson, took place (Mr Hassall conceded as much). Accordingly, it is unnecessary for the Commission to make findings as to whether the incidents actually occurred. It is plainly obvious that the essential issue to be determined by the Commission is whether any, some or all of the incidents, complained about by Ms Cao, constitute actual bullying such as to justify the making of anti-bullying orders under s 789FF or, in the alternative, as strongly pressed by the respondent, that the incidents were no more than ‘reasonable management action carried out in a reasonable manner’.
[94] In GC [2014] FWC 6988, Hampton C said at paragraphs 45-59:
‘[45] 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.
[46] An applicant may rely upon conduct that took place prior to the commencement date of the new provisions, to demonstrate bullying conduct.
[47] ‘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.
[48] The behaviour must occur whilst the applicant is at work.
[49] 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. This would seem to be equally applicable here.
[50] 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. The ordinary meaning of ‘risk’ is exposure to the chance of injury or loss. In the sense used in this provision, the risk must also be real and not simply conceptual.
[51] Behaviour will not be considered to be bullying conduct if it is reasonable management action carried out in a reasonable manner.
[52] 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.
[53] The Explanatory Memorandum refers to management decision and decisions about how work is to be carried out. This suggests that the term may be required to be given a wide meaning under s.789FD(2) and that the Legislature intended everyday actions to effectively direct and control the way work is carried out to be covered by the exclusion.
[54] 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.
[55] The specific ‘attributes and circumstances’ of the situation including the emotional state and psychological health of the worker involved may also be relevant.
[56] The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’. In general terms this is likely to mean that:
● management actions do not need to be perfect or ideal to be considered reasonable;
● a course of action may still be ‘reasonable action’ even if particular steps are not;
● to be considered reasonable, the action must also be lawful and not be ‘irrational, absurd or ridiculous’;
any ‘unreasonableness’ must arise from the actual management action in question, rather than the applicant’s perception of it; and
consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances.
[57] 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.
[58] 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.
[59] 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 (the Managing Director) has repeatedly behaved unreasonably towards the applicant whilst the applicant was at work 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.’ (endnotes omitted)
[95] In Amie Mac v Bank of Queensland Limited & Ors [2015] FWC 774, Hatcher VP said at paragraphs 87-9:
‘[87] The requirement for repeated unreasonable behaviour is clearly a core element of Part 6-4B. The Explanatory Memorandum to the Fair Work Amendment Bill 2013 through which Part 6-4B was enacted discloses that the definition of bullying at work in s.789FD, including this element, reflected a recommendation for such a definition contained in the report of the House of Representatives Standing Committee on Education and Employment “Workplace Bullying - We just want it to stop”. In referring to that report, the Explanatory Memorandum said:
“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.”
[88] In Re SB, the Commission (Hampton C) discussed the requirement for repeated unreasonable behaviour in the following terms:
“[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.
[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.”
[89] I respectfully agree with those statements, but I would add three further observations about the interpretation and practical application of the expression “repeatedly behaves unreasonably” in s.789FD(1)(a). First, the expression falls within a definition provision. The function of a legislative definition, as was pointed out by McHugh J in Kelly v R, is not to enact substantive law, but to provide aid in construing the statute. A definition provision is therefore not to be interpreted in isolation and thereby given a meaning which negates the evident policy or purpose of a substantive enactment. Part 6-4B has the evident purpose of establishing a mechanism by which the bullying of workers at work may be stopped. In interpreting, and applying, the expression “repeatedly behaves unreasonably” as it appears in s.789FD(1)(a), the concept of repeated unreasonable behaviour is not to be approached in a manner which divorces it from that purpose. The subject matter is bullying at work, and that must be borne steadily in mind in any consideration as to whether particular behaviours are unreasonable for the purpose of s.789FD(1)(a). A consideration of unreasonable behaviour which loses sight of the objective and subject matter of Part 6-4B may lead to the provisions not achieving their intended purposes, or being used for a purpose that was not intended.’ (endnotes omitted)
[96] I turn now to the specifics of this case. In my view, facts and circumstances referred to above, serve to demonstrate some common features of applications brought under s 789FC of the Act. It is manifest that Ms Cao holds an unshakeable conviction that she has been bullied by Ms Wilkinson over the course of nearly three years. My impression, from observing Ms Cao, is that her conviction is genuinely held by her. However, it does not necessarily follow that Ms Cao’s conviction is objectively reasonable or that she was actually bullied, within the meaning of s 789FD of the Act, or as the term might generally be understood by the objective bystander.
[97] Ms Cao’s allegations have been the subject of two investigations, a mediation agreement, a s 372 General Protections application, a complaint to Safe Work NSW and, of course, these proceedings. In my view, Ms Cao’s dogged, single-minded belief in the righteousness of her cause of action, no matter what the result of any investigation of her complaints, particularly those conducted by the employer, she was not prepared to accept any outcome, unless it unequivocally vindicated her complaints against Ms Wilkinson and resulted in disciplinary action being taken against Ms Wilkinson. Even accepting that Ms Cao was correct in her allegations against Ms Wilkinson, disciplinary action against Ms Wilkinson was never going to be an outcome, nor would it be appropriate for orders of that kind to be made by the Commission. The underpinning intent of the Commission’s anti-bullying jurisdiction is to correct behaviour, not to serve as a vehicle for revenge or retaliation.
[98] Like many anti-bullying cases, the answer to this application is not necessarily found by defining what bullying is, but rather, what it is not. This appears to be the statutory purpose of the words in subs 789FC(2):
‘(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.’
[99] In my judgement, Ms Cao has little or no understanding of what bullying behaviour in the workplace is. Rather, she focussed entirely on how she felt about the incidents involving Ms Wilkinson, and not on whether these incidents were reasonable management action carried out in a reasonable manner.
[100] In essence, Ms Cao’s allegations seem to me to be a disguise for another unrelated reason why Ms Cao steadfastly holds to her view that she has been bullied by Ms Wilkinson. In my view, Ms Cao’s allegations have their origin in the fact that she did not get a promotion she had applied for in 2013, and that Ms Wilkinson was promoted around this time. Her disappointment turned to resentment, then antagonism and finally to an arrogant and blatant refusal to comply with Ms Wilkinson’s directions or acceptance of Ms Wilkinson’s authority. It became a serious management and interpersonal office problem that could not be ignored.
[101] Ms Cao, unsurprisingly, denied that her views of Ms Wilkinson and her dealings with her had anything to do with what happened in 2013, but there are examples in her evidence which lead me to a different conclusion.
[102] Firstly, in an email dated 25 January 2015, which Ms Cao said she had just written to herself, she said, inter alia, ‘You obtain your current position from doing office politics.’ When pressed, Ms Cao said in transcript:
‘This evidence, that’s what reflect my – inside me, how I feel, yes.’
[103] Secondly, throughout her materials, Ms Cao continually refers to Ms Wilkinson as the Team Leader, rather than as the Manager, as if she cannot bear even to think of Ms Wilkinson as being a Manager.
[104] Thirdly, as previously mentioned, the orders Ms Cao originally sought in this case included orders that Ms Wilkinson be disciplined and demoted. To my mind, this demonstrates the motivation of Ms Cao was to secure some form of revenge, because Ms Wilkinson was promoted and she was not.
[105] Fourthly, I accept Ms Wilkinson’s evidence that she felt Ms Cao resented her promotion and refused to recognise her role as Manager as a result.
Findings on Ms Cao’s complaints
[106] I have carefully reviewed each of the examples of alleged bullying by Ms Wilkinson towards Ms Cao, particular with respect to the numerous emails that were tendered in the proceedings.
[107] My reading of the emails in 2013-14 disclose that while Ms Cao was raising issues about her excessive workload, Ms Wilkinson’s responses were courteous, co-operative and even friendly. They were certainly not aggressive. I observe that Ms Cao quite improperly sought to compare her workload with others in the team, which she had no right to do. She did so even though she had been expressly told by others in the team that they did not want her making comments about their workloads.
[108] It is clear to me from the emails after 22 November 2013 that Ms Cao believed Ms Wilkinson was intimidating her. However, it is my opinion that the undercurrent was that Ms Cao believed Ms Wilkinson’s requests and instructions were limiting her autonomy and therefore any scrutiny of where and what she was doing called into question her professional experience and expertise. Even so, I consider Ms Wilkinson’s requests were always polite and non-threatening, even when it was Ms Wilkinson who was provoked by Ms Cao refusing to provide information on her expenses, refusing to write up case notes for files and, on one occasion, blatantly ignoring Ms Wilkinson’s direction not to take particular hours off as time off in lieu. It appears to me that Ms Cao wanted to ‘run her own race’, with little supervision or oversight, and when Ms Wilkinson made reasonable requests of her, she perceived this as questioning her professionalism. It was nothing of the sort according to the respondent’s policies.
[109] I also note that Ms Cao’s requests for five months’ leave for personal reasons and her requests to reduce her working hours were not resisted by management or Ms Wilkinson. On the contrary, those requests were readily acceded to, as were the suggestions for mediation and interim reporting arrangements. However, even the interim reporting arrangements were criticised and rebuffed by Ms Cao.
[110] In any event, Ms Wilkinson’s relatively restrained responses and reasonable requests must be viewed in the context of the extreme language used by Ms Cao when referring to Ms Wilkinson and her alleged conduct. It was clear to me that Ms Cao was intent on undermining Ms Wilkinson, albeit in subtle ways. For example, after an agreement was reached in mediation - which was intended to be confidential - Ms Cao prepared a background paper of what she understood to have been the agreement and sent it to Mr Bacchiella. In it, she repeated the same accusations against Ms Wilkinson and her own negative views of Ms Wilkinson’s conduct. She even raised unsubstantiated opinions of unnamed persons given five years earlier that ‘she [Ms Wilkinson] has two faces, she is not easygoing and very ambitious in a bad way’. This was hardly reflective of the mediated agreement between Ms Wilkinson and Ms Cao.
[111] What I also found rather curious was that there was a large gap, from April 2015 to 17 November 2015, when there was seemingly no report of any incident between the pair. This goes to the question of whether the alleged behaviour was repeated behaviour of the requisite kind required by s 789FD(1).
[112] As to the allegation that Ms Wilkinson belittled and humiliated Ms Cao in team meetings, there was no corroborating evidence brought by Ms Cao that other team members believed Ms Wilkinson was acting in this way towards her. The highest the evidence got was two employees expressing concern at the tone of the meeting. In fact, the two employees record:
‘We would also like to state that our feelings of frustration and unease are not your doing Rita.’
Ms Cao could have summonsed other team members to give their version of what occurred in these meetings. The only corroborating evidence is from Mr Bacchiella, who attended at least two team meetings. He did not accept that Ms Wilkinson had acted in a bullying manner (humiliating or belittling) towards Ms Cao. Given my overall assessment of the witness evidence, I accept Mr Bacchiella’s version of events and his assessment of the conduct of Ms Wilkinson.
[113] That said, while I am prepared to accept that Ms Wilkinson’s verbal directions to Ms Cao may have been direct or even forceful, that is a long way short of a claim that she was shouting, hostile and angry. It most certainly does not amount to bullying.
[114] It is difficult to reconcile Ms Cao’s allegations that the respondent and Ms Wilkinson had not complied with Metro’s policies and procedures when she wilfully sought to breach them herself, or seek an exemption from the policy (as she did in August 2015 with respect to her request to change her hours). In addition, Ms Cao conceded that there was a policy in respect of handling ‘drop-in’ clients, but that she just happened to disagree with it.
[115] There were further accusations that the respondent had not conducted proper or transparent investigations, which resulted in unfair outcomes for Ms Cao. There is no substance to these claims. As mentioned earlier, nothing would have satisfied Ms Cao unless the outcome was exactly as she wanted it. In my view, Mr Bacchiella’s investigations, which included interviewing both Ms Cao and Ms Wilkinson, consulting with Human Resources staff, and actually being present when Ms Cao’s complaints were said to have occurred, were fair, reasonable and transparent. Ms Cao was given every opportunity to put her case and her version of events. In some cases, she followed up with missives as to how she perceived the investigations and their outcomes. There is no mandatory requirement on the employer to engage an outside or external person to conduct the investigations. In any event, I doubt it would have made any difference if an external investigator found against Ms Cao’s complaints.
[116] Notwithstanding Mr Bacchiella’s finding that there was no basis for Ms Cao’s claims of bullying, he recommended mediation, encouraged Ms Wilkinson to undergo further management training (which she did voluntarily) and accepted Ms Cao’s medical certificates and requests for reduced hours and different interim reporting arrangements. Ms Cao was satisfied with none of this. In my opinion, it was Ms Cao who was behaving unreasonably. I am satisfied Mr Bacchiella’s two investigations were sound, appropriate and responsive.
[117] In dealing with the applicant’s initial complaints of being overworked, I accept Mr Bacchiella’s and Ms Wilkinson’s evidence that Ms Cao was treated no differently to other members of the team. To suggest that being given two extra files in two and a half years was being overwhelmed by work was an absurd gross exaggeration. In any event, Ms Cao’s own evidence was that extra files were taken up in cases of urgency, or the absence of other staff. In a small team environment of professionals that was expected and routine. In any event, Ms Cao did not even end up dealing with the files, because she adamantly refused to do so. It is somewhat difficult to claim that you are overworked when you refuse to do the extra work. I note that there was no disciplinary or performance-related action taken against Ms Cao for this refusal. Moreover, Ms Cao’s claim that she was given more work when she returned from five months’ leave does not sit comfortably with the evidence. I accept that Ms Cao took up the work of the locum who had filled in for her and that at no time had the locum complained about Ms Wilkinson or an excessive workload.
[118] While I have not determined this case on witness credit per se, it would be remiss of me not to comment on the demeanour of, and evidence given by the witnesses in this case. Regrettably, I found Ms Cao to be an argumentative and defiant witness who sought only to answer questions which she believed best suited her case against Ms Wilkinson. Not once was she prepared to accept that any of her behaviour or conduct was even inappropriate, including when the evidence was plainly contrary to her version of events. Ms Cao’s evidence was completely overwhelmed by her own belief that she had done nothing wrong and Ms Wilkinson was the aggressor - the bully.
[119] On the other hand, I found Ms Wilkinson’s evidence to have been truthful and believable. Although understandably nervous and feeling pressured, I cannot accept that Ms Wilkinson’s conduct was unreasonable or that any of the incidents alleged by Ms Cao constituted examples of bullying behaviour. She was acting within the parameters of managing a small team in a fair and equitable manner. Her requests for Ms Cao to comply with the policies of the respondent and her discretionary directions were routine, regular and unremarkable. The requests were not made to belittle, humiliate or otherwise cause hurt or distress to Ms Cao. It was not bullying.
[120] It is incumbent on me to consider the medical evidence provided by Ms Cao in her defence. This consisted primarily of a letter from her General Practitioner dated 23 January 2016 and a letter from her referred psychologist dated 31 January 2016.
[121] In the letter from Dr Mary Chung, the General Practitioner reports as follows:
‘This is to certify that on 24/1/2015, Mrs Cao came to see me claiming that she had been a victim of bullying at work by her team leader. She also said that because of the bullying, she became excessively anxious and stress [sic] at work and was having difficulty sleeping. She was prescribed sleeping medication and referred to see a psychologist for evaluation and counselling on 24/1/2015.
Since January 2015, she has been coming to our clinic frequently, complaining of stress at work. This has caused her to have episodes of increasing headache requiring regular analgesia, shortness of breath, palpitations, abdominal pain, insomnia, fear and anxious of (sic) going to work in the morning, loss of interest in life and hopelessless (sic). In my opinion, all these symptoms are suggestive of anxiety depression most likely related to her situation at work.
Mrs Cao said that even though there were mediations arranged for her and her team leader, so far the work situation has not changed. I would therefore be grateful if you could assist Mrs Cao in resolving her work situation as soon as possible as these (sic) has caused her tremendous mental anguish and affects her physical health.’
[122] The letter from Mr Wei Lu, a registered psychologist, said:
‘Ms Cao was referred by her GP, primarily for work related stress. The initial referral was made on 24th Jan 2015. We have had five consultations (on 13th May 2015, 2nd Dec 2015, 10th Jan 2016, 20th Jan 2016 and 31st Jan 2016) to date. She claimed that she has been subject to workplace bullying.
Her presenting symptoms include sleep disturbance, depressed mood, headache, sense of hopeless (sic), anxiety, high irritability, agitation, sadness, sense of hopelessness, and fear toward work.
Her presenting symptoms are consistent with Adjustment Disorder with Mixed Anxiety and Depressed Mood. Adjustment disorder occurs when an individual is unable to cope (sic) the stressor effectively.
The consultations have focused on stress management, problem solving, and cognitive therapy. Her mood has been slowly improved throughout the management.
In my opinion, her current psychological condition is suggestive for ongoing intervention. She advised that she has attempted to resolve the issue with her team leader, however the situation remained unchanged. In my opinion, a supportive working environment is highly recommended…’
[123] It is clear that from January 2015, Ms Cao was visiting her General Practitioner, and that she was consulting with a psychologist from May 2015 to January 2016. However, there was no evidence that Ms Cao was experiencing an overwhelming workload or was suffering from any detrimental physical, emotional or psychological issues from the second half of 2013 through to 2014, which was serious enough for her to seek medical advice.
[124] It is also unclear from the evidence whether Ms Cao had made the respondent aware that she was suffering physical and psychological stress throughout the period from late 2013 to early 2015 (except for her five months of leave in early 2014) such as to result in her being required to take personal leave. However, in February 2015, Ms Cao advised Mr Bacchiella that she was suffering from headaches and sleeplessness, and that she had consulted her General Practitioner and psychologist. She requested that the respondent pay for such sessions. Mr Bacchiella agreed to pay for three sessions, if she attended one of three independent psychologists. She declined to do so, claiming it was not possible to arrange a consultation.
[125] What is apparent from the medical evidence (such as it was) is the following:
1. There was no evidence of Ms Cao requiring time off to recover from the emotional and physical strain she claims she was experiencing.
2. There was no evidence of Ms Cao being prescribed antidepressants or other directly-relevant medication to deal with her symptoms, other than sleeping medication to address her difficulty sleeping.
3. While both practitioners recommended that her work issues be resolved to assist her physical and mental wellbeing, neither of them expressly recommended what the respondent was to do, let alone that she should not be managed by Ms Wilkinson.
4. Both practitioners were only making observations on what Ms Cao had told them in the past. The letters were retrospective. They had no information from the respondent as to its views of the circumstances. Neither of the practitioners was called to give evidence and be cross-examined. I readily accept, of course, that the respondent did not seek to test the medical evidence.
[126] While I acknowledge that this limited medical evidence may establish a causal link between Ms Cao’s physical and mental state and how she felt she was being treated at work, it does not establish a causal link between how she felt and Ms Wilkinson’s actual interactions with her, such as to establish that Ms Wilkinson had bullied her.
[127] It was not until 8-10 May 2016 that Ms Cao saw both practitioners and they recommended that she reduce her workload due to stress at work, with Dr Chung expressly recommending she work two days a week. No medication appears to have been prescribed. The evidence reveals that the respondent agreed to this request, without hesitation. There has been no further medical evidence of Ms Cao’s condition since early May 2016.
In a rather strange final submission, Ms Cao queried why that she had not been disciplined or dismissed if she was guilty of any wrongdoing or breaches of policy according to the respondent. In my view, Ms Cao should be thankful she was not disciplined for her constant refusal to comply with reasonable directions of her Manager. She should be very careful about her conduct in the future. I consider that in the context of threats of legal action, actual action taken by Ms Cao and her unwillingness to accept any rapprochement with Ms Wilkinson, it was perfectly understandable that the respondent was ‘treading on eggshells’ every time a new complaint was made that was unresolved to Ms Cao’s satisfaction. In my opinion, it had ample evidence to have justified some form of disciplinary action being taken against Ms Cao.
CONCLUSION
[128] For the aforementioned reasons, I have found that the numerous examples of allegations of unreasonable behaviour by Ms Wilkinson were not supported by the evidence. Nor were the allegations of a character as to fit within the meaning of bullying conduct found in the Act. The actions of Ms Wilkinson were reasonable management action carried out in a reasonable manner. The respondent has appropriate policies for dealing with allegations of the kind made by Ms Cao, and it investigated her complaints in a fair and transparent fashion.
[129] Given that the prerequisite to the making of anti-bullying orders is based on a further risk to the health and safety of Ms Cao, as contemplated by s 789FF of the Act, is a finding that the conduct complained about was bullying as defined, this application must be dismissed. I order accordingly.
[130] The only two recommendations I would make in this case are firstly, in future, where an employee vigorously asserts that an internal investigation into bullying allegations will lack transparency or independence, it may be prudent for the employer to engage an independent third party to conduct the investigation. I hasten to add that in the circumstances of this case it would have unlikely made any difference to the outcome.
[131] Secondly, Ms Cao is an intelligent and an experienced professional in her area of expertise. In my view, a workable, courteous and professional relationship between Ms Cao and Ms Wilkinson is not beyond salvaging. As difficult as it might be, I strongly recommend they both work very hard to achieve such a result.
DEPUTY PRESIDENT
Appearances:
Ms S Hardy for the applicant.
Mr R Hassall with Ms J Kneebone, solicitors, for Metro Assist Inc.
Hearing details:
2016;
Sydney,
31 May.
Annexure A
15. WORKPLACE BULLYING
15.1 Preamble
Bullying at work is any form of behaviour which is offensive, intimidating, malicious or insulting or is an abuse or misuse of power intended to undermine, humiliate, denigrate or injure individuals or groups. Bullying leads to stress and then to illness and behavioural problems if prolonged. A very high proportion of people subjected to bullying change their job as a result.
Bullying at work is a health and safety, employment rights and a trade union issue. It causes job insecurity and adverse health effects and often arises out of an imbalance of power in the workplace, which a trade union can address.
Bullying can happen between any co-workers, or by clients (horizontal relationship), customers, contractors or others from outside the workplace.
Bullying can take many forms:
● Direct verbal and physical threats
● Unfair use of disciplinary and assessment procedures
● Blocking access to promotion, training, overtime
● Setting impossible deadlines and targets
● Withholding information essential to do the job properly
● Excessively tight supervision
● Public humiliation including being shouted at
● Persistent and undue criticism including inaccurate accusations about quality of work
● Undermining responsibility
● Abusive references to age, sex, race, disability or other personal characteristics
● Spreading malicious rumours
● Physical isolation from other workers
Under occupational health and safety legislation, employers have a legal duty to control all health and safety hazards in the workplace. This includes organisational structures and behaviours which may lead to bullying. Employers have to consult with their employees about policies and procedures to eliminate all hazards and risks from the workplace. There is no excuse for causing or allowing bullying.
15.2 Policy
The Management Committee of the Metro Assist will not tolerate any form of bulling in the workplace. Therefore, it assumes responsibility for raising awareness and providing training for all staff, volunteers and students. In addition, The [sic] Management Committee will provide support for those who are experiencing bullying. Staff or Management Committee members engaged in any form of bullying will be subject to the grievance procedure.
15.3 Procedures for Staff’s [sic] Member’s Supervisor
a. Provide advice, guidance and support for people who believe they are being bullied, for example suggesting that they keep an ‘incident diary’
b. Represent workers in any proceedings which take place
c. Raise the issue with the CEO outlining procedures which may be instrumental in getting it resolved
d. Assisting workers to obtain medical and other professional help
e. Ensure all complaints about bullying are kept confidential if this is required by the complainant
f. Provide protection for any worker against further victimization
g. Ensure that the complainant is informed and supported to draw on union or legal advice.
15.4 Procedures for all Staff
a. Checking with the worker concerned to offer support by:
● refusing to participate in any form of bullying
● tell [sic] them they have the legal right not to be bullied
● tell [sic] them that you are willing to act as a witness (if you have witnessed this), or a support person to process the complaint
b. If requested by the worker being bullied, asking the person concerned to stop the offending behaviour
c. Recording the date, place time (sic) and details (including any witnesses) of the incident
d. Contribute to the workplace environment by consistently demonstrating ethical and professional behaviour.
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