| [2017] FWC 3136 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Darren Lacey and Chris Kandelaars
v
Murrays Australia Pty Limited; Andrew Cullen
(AB2017/141 and AB2017/157)
COMMISSIONER ROE |
MELBOURNE, 8 JUNE 2017 |
Application for an FWC order to stop bullying.
[1] Mr Lacey and Mr Kandelaars have applied for bullying orders against Andrew Cullen and their employer Murrays Australia Pty Limited t/a Murrays Australia (Murrays). The Applicants are bus drivers employed by Murrays. Mr Cullen was a manager of the Applicants. The Applicants allege that Mr Cullen has bullied a group of employees of which the Applicants are members. Murrays and Mr Cullen offered a joint defence to the applications. Given that the allegations relate to the same employee and that there is to some extent an alleged common course of action, the parties agreed that the matters be heard together.
[2] Mr Cullen and Murrays accept that Mr Cullen engaged in some inappropriate behaviour, although they deny that, when viewed in context, the behaviour amounted to bullying. Following the complaints, Murrays has altered Mr Cullen’s duties so that he is no longer responsible for the supervision of the drivers, for investigating incidents, assessing drivers or disciplining drivers. He remains responsible for training drivers and may record breathalyser results from time to time. Murrays therefore argues that there is no longer any risk that Mr Lacey and Mr Kandelaars will be bullied at work by Mr Cullen. Murrays also argue that given the size of the workplace and the layout of the office, it is not possible to eliminate all contact between Mr Lacey and Mr Kandelaars and Mr Cullen. They argue that this limits the utility of any orders. They also argue that Mr Kandelaars has declined to work unless and until there is an order preventing contact between Mr Cullen and himself. Murrays argues that unless FWC is prepared to make an order which has this effect, Mr Kandelaars is not at on-going risk because he would not return to work.
[3] Based upon the requirements of Section 789FD of the Fair Work Act 2009 (the Act) and the considerations set out in the decision of Commissioner Hampton in Ms SB 1, to obtain orders the Applicants must establish that:
a) They were subject to unreasonable behaviour;
b) That the behaviour was repeated;
c) That they were subject to the repeated unreasonable behaviour while they were 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 they will continue to be bullied at work 2.
[4] I am satisfied and it was not in contention that Mr Lacey and Mr Kandelaars are “workers” as defined by Section 789FC of the Act. I am also satisfied having considered all of the evidence, that they reasonably believe that they have been bullied at work. I am satisfied that the preconditions for making an application as specified in Section 789FC of the Act have been met in this case.
[5] The alleged incidents occurred whilst employees were at work so (c) above is not in contention. There is evidence of “risk to health and safety” in that Mr Kandelaars has been unable to attend work since he lodged his application and Mr Lacey has provided medical evidence that satisfies me that he has been suffering from stress and anxiety following the alleged incidents. To the extent that the behaviour is established, then (e) is not in contention.
[6] In total 12 bus drivers, including the Applicants, gave evidence in this case. They all complained about Mr Cullen’s behaviour. There were also reports from others who did not appear as witnesses about inappropriate behaviour by Mr Cullen. The Applicants submit that the evidence from the other drivers adds credibility to the Applicants concerns and to their evidence and makes the case for a finding that there is an on-going risk and that orders are necessary and appropriate, stronger. I agree that the evidence of the other drivers is relevant for this purpose. However, it does not relieve the Applicants of the requirement to establish that they were each subject to repeated unreasonable behaviour from Mr Cullen whilst at work and that the behaviour was not reasonable management action carried out in a reasonable manner.
[7] It is therefore both necessary and appropriate to consider the alleged conduct involving the Applicants first.
[8] Mr Kandelaars alleged that throughout his employment at Murrays’ Mr Cullen:
[9] Mr Kandelaars says that he has felt unable to return to work because he is fearful of being around Mr Cullen.
[10] On 18 October 2016, an incident occurred which led to a complaint by Mr Kandelaars. He was starting his shift and completing pre-shift paperwork, when Mr Cullen came out of the office and sat next to him. He wanted to discuss why Mr Kandelaars had not cleaned the bus he was driving on Saturday 15 October. The reason why Mr Kandelaars had not cleaned the bus is that by “20.30 he was out of driving hours and therefore notified Sydney logs to defect the coach to which they agreed”. The logbook entries made by Mr Kandelaars for the day showed, that he had worked for 14 hours (inclusive of breaks) and therefore was unable to complete further duties. Mr Cullen claimed that Mr Kandelaars had time left to complete cleaning and refuelling. Mr Cullen produced a telematics report which he said showed that Mr Kandelaars had stopped at Apollo Bay at 12.33 pm whilst the logbook shows that Mr Kandelaars had a break at Apollo Bay at 12.45 pm. Mr Kandelaars said that the logbook entry was in fact correct. Mr Kandelaars believed that Mr Cullen was telling him to falsify the log book and to complete the log book in a different manner than he had been instructed. Mr Cullen said that there was nothing in the logbook which says that you can’t do it the way he suggested and told him that it was a loophole which could be used. Mr Kandelaars was then upset and running late. Mr Cullen offered to assist Mr Kandelaars to get ready but Mr Kandelaars refused. Mr Kandelaars says that Mr Cullen’s approach caused him unnecessary stress prior to him driving the coach.
[11] Mr Cullen acknowledges that Mr Kandelaars was in fact correct concerning the method for completing the log book (i.e. Mr Kandelaars was correct in using the rounded up or rounded down time). If Mr Kandelaars had followed Mr Cullen’s instructions concerning alteration to the log book and working additional time to complete cleaning and refuelling, he would have been in conflict with fatigue laws.
[12] Mr Kandelaars was dissatisfied with the way in which Murrays handled his complaint. In his view, Murrays accepted that Mr Cullen had made a mistake and considered that was pretty much the end of the matter 3. However, Mr Kandelaars felt that it was unacceptable that the person responsible for driver training did not know how to correctly fill in log books and its link to fatigue laws. He was also concerned about the stress the incident caused him. I agree with Mr Kandelaars.
[13] I am satisfied that Mr Cullen’s behaviour on 18 October 2016 was unreasonable behaviour and it was not reasonable management action carried out in a reasonable manner.
[14] Bus drivers work in a difficult and stressful environment. It is important that management actions do not unnecessarily add to the stress of drivers given the personal and public safety implications. Bus drivers at Murrays also work very long days of up to 14 hours. In these circumstances, conversations with drivers at the beginning or at the end of shifts need to handled carefully and unnecessary confrontation avoided. In this context, it was inappropriate and unreasonable for Mr Cullen to confront Mr Kandelaars about his failure to clean and refuel the bus when the log book entry, when matched against the telemetric data, demonstrated that there were no problems with Mr Kandelaars actions. It is not reasonable management action to falsely accuse a driver of avoiding duties in circumstances where they have worked a 14 hour day and have acted consistently with fatigue requirements. In fact, for management to make such an approach is to apply indirect and inappropriate pressure on drivers not to comply with fatigue and logbook requirements.
[15] In my view, this is not some trivial error on the part of a manager. Mr Cullen as the person responsible for managing the drivers and for their training had a duty to properly understand how log books should be completed and their relationship to fatigue regulations. This duty was absolutely central to his responsibilities as a manager.
[16] Mr Kandelaars gave evidence that in the period after the 18 October 2016 incident, there were a number of “minor incidents that weren’t worth putting a formal complaint in”. Mr Kandelaars says that Mr Cullen was nit picking and gave as examples him raising issues about driving a bit slower in the depot and randomly pulling up telematics reports where an alarm went off for a speed of 103. Mr Kandelaars gave evidence that these reports were not always 100% accurate. Mr Kandelaars said that Mr Cullen has no communication skills.
[17] Of course, if Mr Kandelaars was speeding or driving too fast in the depot, it would be reasonable management action for Mr Cullen to raise these issues.
[18] Mr Kandelaars made a second formal complaint about Mr Cullen on 5 February 2017 arising from incidents on 3 February 2017 and on 1 February 2017. Mr Kandelaars says that Mr Cullen:
“suddenly threw some papers in front of me on the desk and said well here is [sic] some papers for you to sign. I looked at Andrew with some surprise and said what’s this?. He said it was a pretrip damage report for me to sign, when I asked about the damage he said it was a scratch under the bumper and probably been there for a few years but I was the last driver.” 4
[19] Mr Kandelaars says that he said that he would not sign it straight away and would make some inquiries regarding the damage. Mr Cullen insisted that Mr Kandelaars sign and got quite agitated and snatched the paper work back and that he was beaching company policy by not signing. Mr Kandelaars says that he then took the necessary steps to take his coach out and Mr Cullen approached him again and told him that the trailer was parked in the wrong spot by another driver and he would move it and observed that drivers were not following company policy.
[20] Mr Cullen accepts that the damage appeared to be old damage. Mr Cullen says that when Mr Kandelaars refused to sign, he said words to the effect: “you can do that and what about if I write that you refused to sign and follow company procedure”. Mr Cullen says that he then wrote this on the form and showed it to Mr Kandelaars, reminding him again that everyone had to follow procedures and there were consequences if they didn’t.
[21] Two days prior to this incident, when Mr Kandelaars was finishing his shift and had just parked the coach, Mr Cullen came onto the coach and made Mr Kandelaars restart the coach and drive around the depot “just to prove that you can idle around the depot because I dared use the accelerator to move out of the wash bay.” 5
[22] Mr Cullen says that he took this action after he heard the coach accelerate out of the wash bay. He says that he was not angry but he was firm. He says that Mr Kandelaars did not complain about his actions at the time. Having observed Mr Cullen and having heard the evidence from the other drivers, I am satisfied that Mr Cullen’s firmness would reasonably be perceived as abruptness or aggressiveness.
[23] Mr Kandelaars says that Mr Cullen was abrupt and aggressive and simply instructed him to drive without explanation. Mr Cullen accepts that he did not provide an explanation. I accept the evidence of Mr Kandelaars.
[24] Mr Kandelaars considered that this was belittling him in front of other drivers. Mr Kandelaars also considers that he was being micro managed and unnecessarily watched and this put stress on him. Mr Kandelaars told management on the 15 February that he would not work as he had concerns for his safety and that of his passengers, until his complaint about Mr Cullen’s harassment was resolved.
[25] I accept that Murrays encouraged drivers to drive slowly in the depot and to avoid acceleration out of the wash bay. I also accept that Murrays have a policy that the last driver must report any damage on the vehicle at the end of each shift. If damage is discovered and it has not been reported, then it is deemed as the responsibility of the last driver.
[26] To the extent that the policy concerning reporting of damage on vehicles is reasonable, it is reasonable for managers to draw drivers’ attention to the policy. However, it is inevitable that a policy which attributes old damage to the last driver regardless of whether or not the driver is responsible will cause conflict and upset. In circumstances where the damage is not immediately obvious and is old, it is not reasonable management action to require a driver to accept responsibility for the damage and to then escalate the matter into a disciplinary matter regarding refusal of reasonable instruction and refusal to follow policy.
[27] It is of course reasonable to have a policy to avoid acceleration in the depot in order to decrease noise and promote safety. It is therefore reasonable for managers to raise this issue with drivers. However, it is not reasonable management action carried out in a reasonable manner in these circumstances, to treat drivers like naughty school children and to humiliate them in front of their peers by requiring them to drive a circuit of the depot under instruction. This is particularly the case in circumstances where Mr Cullen accepts that Mr Kandelaars was a good and competent driver.
[28] I am satisfied that Mr Cullen’s behaviour on 1 and 3 February 2017, was unreasonable behaviour and it was not reasonable management action carried out in a reasonable manner.
[29] Mr Lacey makes similar general complaints about Mr Cullen’s behaviour to those raised by Mr Kandelaars. He also submitted two formal complaints to management about Mr Cullen’s behaviour. The first complaint related to an incident on 15 October 2015.
[30] On 14 October 2015, Mr Lacey had worked from 6.00 am to take children on a tour and had returned to the depot at about 7.00 pm. When he took the bus out in the morning, he was unfamiliar with the vehicle and when checking the existing damage to the vehicle with the damage report he was unsure. He asked another driver who told him that he thought the report aligned with the existing damage. However, to be sure, he took photos and emailed them so that it had a time and date stamp. Mr Lacey commenced work again the next day at 3.00 pm. Mr Cullen approached and began to question Mr Lacey about damage to the bus he had used the previous day and why he had not reported it. Mr Lacey explained the situation and that he would email him the photos. Mr Lacey says that Mr Cullen said that this was not good enough and that the photos meant nothing and reminded him that he was on probation. Mr Lacey said that this confrontation made him stressed and he then made an error about his route and as a result was eleven minutes late arriving at the airport. When he came into work the next day, Mr Cullen and Mr Clarke confronted Mr Lacey about being late at the airport. Mr Lacey apologised for his error but felt upset about the badgering and confrontational approach taken by Mr Cullen.
[31] In response to this complaint, Mr Cullen was sent on a conflict resolution course and this was an outcome agreed to by Mr Cullen and Mr Lacey. 6 I accept the evidence of Mr Lacey concerning these events. In particular, I accept his evidence that he did not think that there was any inconsistency between the previous report on the condition of the bus and the damage he saw when he inspected the vehicle. A report is only required if there is an inconsistency. He did however have some doubt and as a result he took pictures. Mr Lacey’s actions were both reasonable and responsible. I also accept his evidence that Mr Cullen was inappropriately aggressive both on 15 and 16 October 2015.
[32] Mr Cullen accepts that he said something like “you are on probation and this is one of things we look at”. Considered in context, I am satisfied that this is reminding Mr Lacey that he is on probation and this would reasonably be seen as a threat.
[33] Mr Lacey says that the incident “shook him to the core”. This may well be how Mr Lacey feels but considered objectively, the incident does not appear to be at that level of severity.
[34] Murrays in these proceedings sought to deny that there was anything unreasonable about Mr Cullen’s conduct on 15 and 16 October 2015 and sought to claim that Mr Lacey was correctly admonished for misconduct. I find this position surprising, given that Murrays obviously agreed at the time that Mr Cullen’s behaviour had been inappropriate and unreasonable because they agreed to require him to attend a conflict resolution course as a direct consequence of his actions on this occasion.
[35] I agree that it was not reasonable management action carried out in a reasonable manner to be dismissive of Mr Lacey’s efforts to deal with his uncertainty about the damage matter by using photos and emails. Nor was it appropriate in the circumstances to threaten Mr Lacey’s employment. Nor was it appropriate in the circumstances to speak aggressively towards Mr Lacey.
[36] The second complaint by Mr Lacey occurred in December 2016. Mr Lacey received a note in his online roster system indicating that his attendance was required at a meeting with management on 8 December 2016, in relation to the following subject: “issue dismissal warning. Personal use of company vehicle, work diary”. Mr Lacey spoke to Mr Blewitt, another manager, who said that the meeting was to discuss a recent breach by Mr Lacey of fatigue laws. Mr Lacey met with Mr Blewitt who issued Mr Lacey with a warning in respect to his breach of fatigue laws. Following that, Mr Cullen said that he wanted to speak to Mr Lacey about alleged unauthorised use of a company vehicle.
[37] Murrays agrees that Mr Cullen refused a reasonable request by Mr Lacey to reschedule the meeting; refused Mr Lacey’s request for a support person contrary to policy; and became frustrated and heated in his discussions with Mr Lacey. Murrays argues that both Mr Cullen and Mr Lacey used raised voices and that to some extent what happened occurred because of a misunderstanding. Mr Lacey says that Mr Cullen was shouting, his fists were clenched and he was red in the face. Mr Cullen accepts that he may have shouted but denies that his fists were clenched.
[38] Murrays agreed that “some aspects of Mr Cullen’s conduct towards Mr Lacey on 8 December 2016, constituted inappropriate behaviour that was inconsistent with the “Murrays’ Equal Opportunity, Discrimination, Harassment, Bullying and Workplace Violence Policy”.
[39] Mr Lacey says in respect to the allegation that he had used the vehicle unauthorised, that on that day he had a 5.00 am start and he lived 200 meters from where the job was and so, he took the limousine to his house during the three hour break between that job and the next job. He had worked five hours and was entitled to a break. He spent about 40 minutes at the house. Mr Lacey says that he advised the control centre of what he was doing at the time. Mr Lacey says that there is no policy which prevents the conduct in which he engaged and that effectively his conduct was authorised by the Sydney control centre. Mr Lacey accepted that he knew that Mr Cullen did not approve of drivers taking the vehicle home.
[40] Mr Cullen accepted that it was normal practice for drivers not to return to depot when they had a break in the middle of a shift and that this was not contrary to the company policy 7. Mr Cullen also conceded that he knew that Mr Lacey did not use the company vehicle for personal use but simply went home for a break. Mr Cullen also said that he knew that Mr Lacey didn’t do anything wrong and yet he still booked a disciplinary meeting with him.8 Considering all of the evidence, I do not consider that it was reasonable for disciplinary action to be taken against Mr Lacey for stopping the limousine at his house for a break to which he was entitled.
[41] Mr Haig was a witness to the confrontation between Mr Lacey and Mr Cullen on 8 December 2016. Mr Haig agreed under cross examination that Mr Cullen was red in the face. He also gave evidence that Mr Cullen appeared quite angry and that this manifested itself by Mr Cullen yelling and circling the room.
[42] Mr Lacey says that around late November 2016, he opened the bus door in the depot which hit the mirror arm of a neighbouring bus. He says that Mr Cullen was in a bus nearby and he drove over and spoke to Mr Lacey. Mr Lacey confirmed that he had hit the mirror and Mr Cullen told Mr Lacey that he would need to complete an incident report. I have no doubt that this was reasonable management action. However, Mr Lacey complained that Mr Cullen spoke in an aggressive and raised voice and that another trainee driver was present at the time. Having observed Mr Cullen in the witness box and considering the weight of the evidence as a whole, I am prepared to accept Mr Lacey’s evidence and conclude that this was unreasonable action by Mr Cullen and it was not reasonable management action carried out in a reasonable manner. It was not in itself a particularly serious incident.
[43] Mr Lacey raised some other more general allegations. However, because I am satisfied that Mr Cullen’s behaviour on 15 October 2015 and 8 December 2016 was unreasonable behaviour and it was not reasonable management action carried out in a reasonable manner, it is not necessary to deal with the more general allegations.
[44] Generally, I found the other drivers who gave evidence to be convincing witnesses. They displayed great commitment to their jobs and to the company and it took considerable courage for many of them to come forward to give evidence.
[45] I did not form the opinion that they were a group of poorly behaved workers who were refusing to accept reasonable discipline as suggested by Murrays. I did not form the opinion that they were some form of lynch mob out to undermine a manager who was just doing his job to enforce company policies in the interests of the safety of the travelling public.
[46] I am satisfied that the evidence of the other drivers established a number of other incidents where Mr Cullen swore at drivers or humiliated drivers or unnecessarily harassed drivers. Mr Cullen accepts that he swore at Mr Sahnkovich on at least two separate occasions and that he called Mr Jergovic an idiot. 9 In another case, Mr Bartrop was filling up his bus with petrol at a station near the bus depot at the end of a long shift. It was late and the service station was very quiet. Mr Bartrop left the keys in the bus ignition and the door open when he went into the service station office to pay for the petrol. This was contrary to Murrays procedures. Mr Cullen was watching at the time unknown to Mr Bartrop. Mr Cullen went into the bus without being seen when Mr Bartrop was in the service station office. Mr Cullen moved Mr Bartrop’s bag out of sight and took the keys and then waited in the dark in the coach for Mr Bartrop to return. Mr Cullen accepted that this is what occurred.10 Mr Bartrop was understandably frightened and shocked when he returned to the bus. Mr Cullen gave evidence that “Mr Bartrop returned and immediately noticed his brief case missing, cursed many times over, and walked towards the service station building and returned continuing to curse.”11 It was only after this that Mr Cullen revealed his presence.
[47] I consider this to be an example of totally inappropriate and unreasonable behaviour. I do not consider that it is the role of management to “teach an employee a lesson”. Such punishment and humiliation of employees is not reasonable management action.
[48] Mr Bartrop described a number of subsequent incidents where Mr Cullen harassed and yelled at him. Mr Cullen denied that he targeted Mr Bartrop.
[49] The remaining allegations raised by the other drivers were generally denied by Mr Cullen. It is not necessary to make findings in respect to these other numerous allegations in order to reach an appropriate conclusion in this matter.
[50] I accept that Mr Cullen’s behaviour was not always unreasonable. I am sure that sometimes Mr Cullen engaged in reasonable management action taken in a reasonable manner. I accept that in some cases, the drivers’ characterisation of Mr Cullen’s behaviour was exaggerated. However, I do not consider it inevitable that the role of managing the drivers is necessarily steeped in conflict. 12 It is inevitable that drivers who perform a difficult and stressful job on shifts that extend for up to 14 hours will make errors and will exhibit some divergence from policies and procedures. It is necessary for management to address these issues but this will not inevitably lead to conflict and dysfunction. I consider that Mr Cullen’s view of the drivers and their behaviour was in part coloured by his poor communication skills and his choice of inappropriate management techniques. I reject the submission that Mr Cullen was the victim of a campaign of wilful disobedience.
[51] I am satisfied that Mr Kandelaars and Mr Lacey were subject to repeated unreasonable behaviour whilst at work and that the behaviour was not reasonable management action carried out in a reasonable manner. The behaviour created a risk to health and safety.
[52] I am satisfied that Mr Cullen has bullied Mr Kandelaars and Mr Lacey.
[53] This is the most difficult question in this case. Murrays have substantially changed Mr Cullen’s duties since 7 March 2017. Mr Cullen is no longer responsible for the supervision of the drivers, for investigating incidents, assessing drivers or disciplining drivers. He remains responsible for training drivers and may record breathalyser results from time to time.
[54] Most of the drivers gave evidence that they continued to feel at risk despite the change in Mr Cullen’s role. Mr Sidhu, the driver who represented the Applicants at the hearing, argued strongly that further action was required. I appreciate the depth of feeling and the vulnerability of those who have been victims of bullying. The view expressed by the affected drivers is legitimate and has some merit. The role of the Commission in these matters is not to punish but to take steps necessary to stop bullying.
[55] I accept that the action of changing the role of Mr Cullen is not in itself sufficient. I consider that an essential further step is to recognise that bullying has occurred. This is essential because
[56] Mr Sidhu was not convinced that the changes to Mr Cullen’s role were permanent and was sceptical about the practicality of the proposed arrangements for the assessment of drivers by a senior driver rather than by Mr Cullen. I accept the evidence of Mr Lee and Mr Murray about the changes and that appropriate alternative arrangements for driver assessments will be put in place. I am confident that Murrays do not intend to return Mr Cullen to his former roles in the foreseeable future.
[57] The bullying incidents with one possible exception do not relate to Mr Cullen’s duties as a trainer. In most cases, the drivers who gave evidence said that Mr Cullen was a good trainer and they did not allege inappropriate behaviour by Mr Cullen when he was working as a trainer. 13 Mr Cullen gave evidence that he did not have any concerns about the driving ability of Mr Lacey or Mr Kandelaars.14
[58] The one incident complained of since Mr Cullen’s duties have changed relates to a breathalysing test Mr Cullen conducted on Mr Jergovic on 20 March 2017. Mr Jergovic says that Mr Cullen showed him briefly how to use the device. It was the first time Mr Jergovic had used the device. Mr Jergovic pushed a button believing that he needed to reset the unit. Mr Jergovic in his statement says that Mr Cullen “angrily moved my finger from the unit, yelling at me, “Not that button”. Mr Jergovic says that he felt humiliated and anxious. In cross examination, Mr Jergovic said that Mr Cullen was not yelling but that he was “really angry”.
[59] Mr Cullen denies that he yelled at Mr Jergovic or that he was angry with him. He says that he was slightly annoyed that Mr Jergovic was unable to follow a simple procedure. He says that he asked him three times to move his thumb off the button and then on the third time, he tapped his thumb to indicate that he needed to remove it so the machine could record his reading. Mr Cullen’s role was to train Mr Jergovic on how to use the machine as part of the new breathalysing procedure.
[60] Mr Murray investigated the incident. Mr Cullen accepted that he should not have touched Mr Jergovic and Mr Murray counselled him that he should not do it again. I accept that Mr Jergovic felt uncomfortable. I also accept that Mr Cullen did not demonstrate best practice training procedure. Considering the situation overall, I am satisfied that Mr Cullen was undertaking reasonable management action but did not do so in a reasonable manner. On balance, I do not consider this to be a serious incident of unreasonable or inappropriate conduct.
[61] Given the number of incidents and the number of drivers who hold serious and soundly based concerns, I accept that there was a serious risk that bullying conduct would continue. However, I also accept that the risk of that conduct continuing has been very substantially reduced by the change in Mr Cullen’s role. Mr Lee gave evidence that the aim of the restructure was to remove the chance of further conflict between Mr Cullen and the drivers. 15
[62] I do not accept the submission of Murrays that because Mr Kandelaars has declined to work unless and until there is an order preventing contact between Mr Cullen and himself, and that because such an order is impractical and inappropriate, Mr Kandelaars is not at on-going risk because he will not return to work. Just because Mr Kandelaars is currently of the view that he will not work unless there is an order preventing any contact, does not mean that this will remain Mr Kandelaars opinion. It would not be appropriate to conclude that there is no risk of bullying continuing for that reason.
[63] I accept that the workplace is relatively small and that the office area overlooks the depot where the buses are located. It is not possible to avoid a situation where those in the office have some contact with the drivers and where the drivers can be observed from the office. At one point it was suggested by Mr Sidhu that Mr Cullen could work with some clerical/administrative workers in a back office or that Mr Cullen not deal with drivers alone. I do not consider this practical given Mr Cullen’s skills and background. Mr Cullen has performed the training and management role for many years. There is only one work location for Murrays in Victoria. I do not consider that an Order requiring complete separation between Mr Cullen and other drivers and Mr Lacey and Mr Kandelaars in particular, or requiring another person to always be present, would be a practical or balanced response at this stage.
[64] I consider that my finding that bullying has occurred when combined with the reduced risk due to Mr Cullen’s new role should be sufficient to protect Mr Lacey and Mr Kandelaars from the risk of further bullying. I therefore consider that an Order is not necessary or appropriate in the circumstances of this case. Should further unreasonable behaviour occur, a new application can be made.
COMMISSIONER
Appearances:
S Sidhu for the Applicants
R Preston of Counsel and A Crowley for the Respondent and Murrays
Hearing details:
2017
Melbourne
May 9, 22
2 [2014] FWC 2104, [34] to [54].
3 PN819.
4 PN793.
5 PN793.
6 Exhibit #A12 Witness Statement Cover Letter dated 19.04.2017.
7 PN1309 to PN1312.
8 PN1316 and PN1317.
9 PN1499 and PN1510.
10 PN1439 and PN1440.
11 Statement of Mr Cullen, at paragraph 211(xi).
12 Outline of Submissions of Murrays, at paragraph 8(a).
13 Statement of Lacey 25 January 2017 at 53-54, PN246 to PN250, Statement of Sahnkovich at page 1, PN86 to PN93, PN196 to PN201, PN774, PN1019.
14 PN1270 to PN1272.
15 PN1178.
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