DECISION

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

John Krnjic
(AB2016/497)

Application for an FWC order to stop bullying.

Introduction

[1] Mr John Krnjic has been employed as a Team Member in the Electrical Department at Bunnings Group Ltd T/A Bunnings Warehouse (“Bunnings”) since 2009 and works at the Northland Shopping Centre Store in Preston. He is employed on a part-time basis and typically works on three days each week.

[2] On 15 July 2017 Mr Krnjic made an application to the Fair Work Commission (“the Commission”) alleging he had been bullied at work by his ‘G4’ or Team Leader, Ms Jenny Morihovitis. She commenced employment with Bunnings on 5 April last year and has been Mr Krnjic’s Team Leader since that time. However, Mr Krnjic has been off work since June last year after he was suspended on 16 June following a complaint made by Ms Morihovitis. Bunnings decided after an investigation into that incident that a previous first and final warning given to Mr Krnjic should now be extended by a further period of 12 months. He currently remains off work on unpaid sick leave, which is supported by on-going medical certificates. Bunnings has indicated that when he is cleared fit to return to work the extended period of the first and final warning will commence from that date.

[3] Mr Krnjic also alleges he has been bullied by management at the Store. He has also made complaints in the past about other employees during his employment with Bunnings, however, none of those individuals remain in employment at the Northland Store.

[4] The matter was dealt with in conference on 29 August 2016, but was unable to be resolved. Mr Krnjic then requested it be dealt with by way of arbitration, however, Bunnings suggested it could most effectively be progressed by way of a further conference. No agreement was able to be reached and so the matter was set down for hearing on 22 February 2017. However, the proceedings on that day were eventually confined to dealing with certain procedural issues that arose. The application was finally heard on 29 March and 17 May 2017.

[5] Mr John Krnjic appeared on his own behalf. Mr Nicholas Barkatsas from the Victorian Chamber of Commerce and Industry appeared on behalf of Bunnings.

The Issues to be Determined

[6] Section 789FC of the Fair Work Act 2009 (Cth) (“the Act”) relevantly states:

“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.” 1

[7] Section 789FD of the Act continues to deal with “When is a worker bullied at work?” It relevantly states:

“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.” 2

[8] Section 789FF of the Act continues to deal with the circumstances in which the Commission may make orders to stop bullying. It relevantly states:

“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.” 3

[9] Therefore, the Commission is now required to determine whether Mr Krnjic has been “bullied at work” in terms of the provisions contained in ss.789FC and FD of the Act and, if so, whether is it appropriate for orders to be made under s.789FF to prevent him from being bullied at work in the future?

The Evidence and Submissions

[10] Mr Krnjic provided a statement dated 6 March 2017, together with a number of additional attachments, in accordance with the directions issued. His statement details various incidents that occurred prior to Ms Morihovitis commencing at the Northland Store. However, he also indicated in cross-examination that none of the employees involved in those earlier incidents continue to be employed at the Northland Store.

[11] His witness statement indicates that Ms Morihovitis commenced at the store in April last year and is his “G4” or Team Leader. On 19 May 2016 she was working with him in the Electrical Department assisting to put stock away when during their conversation she asked what had happened to his face. (Mr Krnjic’s statement indicates that the left side of his “face droops and he is unable to move his left arm.” 4) Mr Krnjic said he found this question to be “deeply disrespectful and hurtful.”5 He also rejects the explanation provided by Ms Morihovitis that she made the enquiry because of concerns about his safety. He said the way she approached him and asked about his appearance was unacceptable and he felt he was being discriminated against. He also considered the questioning went well beyond what might be considered to be a routine enquiry.

[12] He also took issue in cross-examination with what occurred in that discussion and said he did not ask Ms Morihovitis about her family, and whether she was married or had children. He also denied that the discussions simply involved two employees getting to know each other better, and said his participation was “just courtesy.” 6 However, he did acknowledge that he asked Ms Morihovitis about her accent and where it was derived from.

[13] The next incident occurred around three weeks later on 8 June 2016. Mr Krnjic went to the tool shop to get the WAVE machine, being the Work Assisted Vehicle, which is used to gain access to the higher shelving. As he was about to collect the machine his phone rang. Ms Morihovitis was on the line and repeatedly asked what he was doing in the tool shop, and how long he had been there. Mr Krnjic said he attempted to respond but given the incessant questioning found it pointless to continue the conversation and handed the phone to another employee.

[14] Mr Krnjic was again using the WAVE machine the next morning when he was asked by an employee from another Department if he could borrow it. Mr Krnjic later went to retrieve the machine and when returning was asked by another employee if he could scan some tickets she was unable to reach. He said Ms Morihovitis then “burst into the aisle and abruptly asked me what I was doing there.” 7 She said she could not afford to have her team members away from the Electrical Department, and made a big deal about something that could have been dealt with relatively quickly. He described her response as being “like a tornado.”8 He said Ms Morihovitis then confronted him again after he had taken his lunch break and said he needed to report to her before taking breaks. In his view Ms Morihovitis had “called me on the dot to check if I’m there or not.”9 In his view he was being singled out and treated differently from other employees.

[15] Mr Krnjic then decided to take the matter up with the Store Manager, and contacted her on the following day. However, despite repeated requests he was told she was too busy and not able to speak with him. Similar requests made by his Union representative at the time were also unsuccessful. Mr Krnjic said by this time he was becoming increasingly stressed by what was happening and consulted his GP, Doctor Daniela Todaro, who gave him a certificate for two days off work because of work-related stress.

[16] On Wednesday, 15 June 2016, Mr Krnjic called the Duty Coordinator at the Store and told him he had been cleared fit to return to work. He was advised in response that he would need to talk to the Coordinator when he came into work. Mr Krnjic then commenced his shift on the following morning, but was called into a meeting with the Coordinator and told he had been suspended and should go home. Mr Krnjic said he was given no explanation for this decision, other than that the Coordinator had been instructed by the Store Manager to pass on this advice. He was then told that an investigation was being carried out into what had occurred and he would be required to attend a meeting on Wednesday, 22 June 2016, to discuss the outcome.

[17] Mr Krnjic then received a phone call from Ms Kelly Sullivan from Bunnings’ HR Department. She said she wanted to provide him with the opportunity to talk about his on-going issues at work. She also said she would find out why he had been suspended. He then received a further letter confirming he was required to attend a meeting on 22 June 2016, with the Area Manager, Mr Anthony Carnovale, and the Operations Manager, Mr Simon Jones. The letter also indicated that the meeting was to deal with allegations of “refusing to perform tasks as directed by your G4 and speaking to a member of the team in a disrespectful manner.” 10

[18] Mr Krnjic did not expect to receive a fair outcome from the meeting, given his previous experience with Mr Carnovale. However, he was then unable to attend the meeting because of illness. After then visiting the Store as a customer on a Saturday morning he received a further letter from Mr Carnovale, advising he was not to attend the Store in any capacity while certified as unfit for work. He said he again felt bullied and intimidated by this action.

[19] Mr Krnjic then agreed to participate with an investigation into what had occurred but became concerned about the time taken to carry out the investigation. He was also concerned that it was being carried out by a representative from the Victorian Chamber of Commerce and Industry, who had been appointed by Bunnings and was not, in his view, independent of both parties. He said the final report from the investigation “was full of factual errors and which was greatly distorted.” 11 He also said management has “intentionally and calculatedly stalled this whole process expecting that I will somehow depart.”12 He also felt that each time there was a change of management in the Store he was required to prove himself again, and his previous experience and knowledge was simply ignored or not recognised. The stress he had experienced at work had also left him feeling concerned about his personal well-being when he returned.

[20] Mr Krnjic also provided a statement from another employee, Mr Neville Pitt, who has been employed by Bunnings for the past 10 years. He was in the tool shop with Mr Krnjic on 8 June last year when Ms Morihovitis called Mr Krnjic on the phone. He said that after a brief discussion Mr Krnjic asked him to take the phone and he spoke with Ms Morihovitis. He said she appeared very agitated and asked where Mr Krnjic was and how long he had been there. He described her actions as “pure harassment” 13 and said Mr Krnjic was “very shaken”14 by what had occurred.

[21] He also provided a statement from Ms Elizabeth Lett. She asked Mr Krnjic to scan some items in the aisle she was working in while he was passing with the WAVE machine. Ms Morihovitis was also present, and Ms Lett tried to explain to her that she had asked for Mr Krnjic’s help and assistance, but her approach and attitude in response was “very abrupt.” 15

[22] Mr Krnjic also attached various medical reports, including one dated 11 August 2016, which was an Independent Medical Examination carried out by Doctor Richard Prytula, a Consultant Psychiatrist/Psychoanalyst. It was conducted in response to a WorkCover claim made by Mr Krnjic. The report indicates in conclusion that Mr Krnjic “has developed symptoms of anxiety and depression and an Adjustment Disorder with mixed Anxious and Depressed mood.” 16

[23] It also indicates that Mr Krnjic’s principal criticism “is that the most recent manager has micromanaged him and that this is a distinctly different approach to that employed with other workers.” 17 It also notes, “When I asked the worker about his deformity he seemed to have no difficulty in giving me an explanation and the details of his current limitations as a consequence of this. He describes an inappropriate question from a manager however it appears to be within the manager’s role to acquaint themselves with workers as she says in her statement. There is a question of whether the worker was not in his usual comfortable state of mind when the interaction with the manager occurred in which he may have taken the manager’s comment in a more sensitive than required way however I’m not in a position to determine this.”18

[24] Mr Krnjic indicated, in conclusion, that while Bunnings considered that its actions could be justified on the basis of being reasonable management action they had left him feeling worthless and totally degraded. He had also endeavoured to take up his concerns with senior management, but no one had been prepared to make time to speak with him.

[25] Bunnings objects to the application for a stop bullying order on the basis that:

•  there has been no repeated unreasonable behaviour;

•  in the absence of any such behaviour there cannot be a risk to health and safety; and

•  in any event the circumstances involved represented reasonable management action carried out in a reasonable manner.

[26] It submits that Mr Krnjic was involved in two separate discussions with Ms Morihovitis on 8 and 9 June last year about the allocation of work tasks and his whereabouts in the Store. Ms Morihovitis subsequently lodged a formal written complaint on 10 June 2016 to the Store Manager about his reaction and response. He was then suspended from duty while the complaints were investigated. A meeting was then scheduled for 22 June 2016 to discuss the outcome of the investigation, but it was deferred after Mr Krnjic was unable to attend on medical grounds.

[27] On 24 June 2016 Mr Krnjic made a formal complaint about Ms Morihovitis concerning the incidents on 8/9 June and Bunnings then decided, given the complaints by both employees, that an external party would be appointed to carry out an investigation into what had occurred. The investigation process took some time to complete because of the difficulty in getting Mr Krnjic to participate. However, it was finally completed and Mr Krnjiche was informed of the findings on 9 January 2017 and invited to provide a response. It found that some allegations made against him involving inappropriate and/or disrespectful behaviour were substantiated. One allegation made about Ms Morihovitis was also substantiated, and it was decided that she should receive counselling in response. In Mr Krnjic’s case it was decided that the previous first and final warning he had been given would be extended for a further period of 12 months commencing from the date of his return to work. However, he has not returned to work at this point since last attending on 16 June 2016.

[28] Bunnings submits, in conclusion, that Mr Krnjic failed to provide appropriate responses to reasonable and legitimate questions made about his whereabouts in the Store. In addition, he made an inappropriate comment to his Team Leader when he said words to the effect of “You’re not a policewoman, stop asking so many questions.” 19 He also failed to act in accordance with reasonable directions given to him. He has accordingly acted unreasonably and in an insubordinate manner, and there was no evidence to substantiate his allegations of workplace bullying.

[29] Ms Morihovitis has worked for Bunnings since 5 April 2016 as a G4, or Team Leader,
and her responsibilities extend to the Electrical Department at the Northland Store. After commencing work at the Store she made a point of getting to know the employees in her team, but found it difficult with Mr Krnjic, and every time she had a discussion with him he would disagree or make reference to how the work used to be performed. She also denied the allegations made by him about her being rude and swearing during the course of their conversations.

[30] She was then involved in a discussion with Mr Krnjic in May 2016 when they were both working together filling shelves. She asked about his family and his background, including his nationality, as part of wanting to “break the ice” and get to know him better. She was also wanting to understand whether there were any issues that had the potential to impact upon her team members in regard to their health and safety at work. She then asked Mr Krnjic if she could ask him a personal question. He responded by indicating that she could ask him about anything. She then asked about his appearance, and whether he had injured himself at work, or had been that way since birth. She said Mr Krnjic explained what had occurred and she told him she had asked the question from a safety perspective and whether a work-related injury was involved. She said Mr Krnjic did not object in the discussions to her questions, and they carried on talking in a conversation that lasted for around 10 minutes. He also asked her about her accent, which she was embarrassed about and didn’t want to discuss, but answered anyway. She emphasised again that Mr Krnjic did not raise any issues with her at the time about what was discussed, nor did he take up the matter with the Home Coordinator at the Store.

[31] On 8 June 2016 Ms Morihovitis received a call from another Supervisor, who indicated that a member of her team was in the tool shop “doing nothing.” 20 She walked across and saw Mr Krnjic in the tool shop leaning on the wave machine talking to another employee. She paged him and asked him to call her, which he did straight away. She then asked how long he had been in the tool shop for and he said around 2 minutes. He then passed the phone to another employee, but when she asked to speak to him again he told her, “you’re not a policewoman, stop asking so many questions.”21 She said she found this comment offensive and was only wanting to understand where her team members were and what they were doing. She then spoke to the Coordinator to inform him about what had happened, but Mr Krnjic again called out in an angry voice saying, “you’re not a policewoman” and “stop asking so many questions.”22

[32] On the next day she was again unable to locate Mr Krnjic in the Store and walked around trying to find him. She finally found him in another aisle and calmly asked what he was doing. He responded by indicating he was helping another employee. She confirmed he was helping her put some tickets up on a higher shelf with the WAVE machine. Ms Morihovitis said she had no problem with Mr Krnjic helping but wanted him to be in his Department, given the volume of work that needed to be dealt with. Later on the same day she was again unable to locate him. She then had a further discussion with him when he returned to the Electrical Department, but he was reluctant to answer her questions. She emphasised again that she needed to know where her team members were, and it was not appropriate for him to be leaving his designated Department and going to other parts of the Store. She subsequently spoke to the Store Manager about what had happened and was told to detail the matter in writing. She did this in a letter dated 9 June 2016, which she provided to the Complex Manager on the next day.

[33] She also indicated in cross-examination that she had endeavoured to show care and respect in her dealings with Mr Krnjic, and the present circumstances had only arisen because he was not prepared to follow required procedures, and had not been prepared to listen and accept the directions given to him.

[34] Ms Kelli Sullivan is the Human Resource Manager with Bunnings and has been in that role since April last year. She refers in her evidence to a number of allegations made by Mr Krnjic about various employees in the period from September 2010 until June 2015, however, none of those employees are still employed at the Northland Store.

[35] She said Mr Krnjic contacted her by phone on 17 June last year and told her about the discussion with Ms Morihovitis in May when she asked about his appearance, and how he felt he was now being constantly monitored by Ms Morihovitis. He also told her that he had tried to talk with the Store Manager about these issues, but had been unable to arrange a meeting. He also said he had now been suspended from work, but was unsure about why this had occurred. Ms Sullivan indicated in response that she would make enquiries and arrange for a letter to be sent to him setting out the allegations and the nature of the investigation process.

[36] A letter dated 17 June 2016 was then sent to him confirming that a complaint had been made by Ms Morihovitis alleging he had refused to perform certain tasks as directed, and had spoken to her in a disrespectful manner. A meeting to discuss these allegations was scheduled for 22 June 2016, but Bunnings was then advised that Mr Krnjic would not be attending due to illness. He subsequently provided a medical certificate confirming his inability to attend. He also proceeded to make a “counter complaint” against Ms Morihovitis.

[37] Ms Sullivan then spoke again with Mr Krnjic and he again emphasised that he believed he had done nothing wrong. He also said he did not trust the management at Bunnings to properly investigate what had occurred, given his experiences in the past. Ms Sullivan then suggested an independent investigation could be carried out, and Mr Krnjic agreed this would be acceptable. Ms Sullivan then instructed Ms Amy Bell from the Victorian Chamber of Commerce and Industry to carry out the investigation.

[38] However, on 14 June 2016 Bunnings became aware Mr Krnjic had made an application to the Human Rights Commission claiming he had been discriminated against because of his disability. On the next day he lodged this application with the Fair Work Commission.

[39] Ms Sullivan then had a series of discussions with Mr Krnjic’s General Practitioner, Doctor Todaro, about his ability to participate in the investigation process. Doctor Todaro finally confirmed on 6 September 2017 that she believed he was now able to be involved, and a meeting with Mr Krnjic was arranged with Doctor Todaro to also attend as his support person. However, this meeting did not go ahead because Mr Krnjic subsequently refused to accept both a confidentiality commitment and the fact that he would not be entitled to receive a copy of the report of the investigation, when completed.

[40] Further communications were then exchanged in an endeavour to reach agreement on terms that would enable Mr Krnjic to agree to participate in the investigation. Agreement was finally reached and a meeting with the investigator, Ms Amy Bell, took place on 11 November 2016. She then sent a draft of her notes of the meeting to Mr Krnjic, but he advised in response that, in his view, the notes contained many factual errors. He also indicated that he did not want to go through the process again and refuse to participate in any further discussions. Further attempts to have him engage with the investigation process were unsuccessful.

[41] Ms Sullivan wrote again to Mr Krnjic on 9 January 2017 and provided details of the investigation’s summary findings which involved the following conclusions.

● He had attempted to evade the questions from his Team Leader in the discussions on 8 June and acted in a disrespectful manner.

● The Team Leaders behaviour on the same day was not necessarily ideal but nothing further was indicated.

● The claim that Mr Krnjic had walked away from his Team Leader in the discussions could not be substantiated.

● The Team Leader had acted in an abrupt manner but that was perhaps understandable in all the circumstances.

● Mr Krnjic was also found to have acted in a disrespectful manner when asked about his breaks from work, and when he failed to comply with other directions.

● Ms Morihovitis’ actions in making reference to Mr Krnjic’s appearance in the discussions in May were unreasonable and/or inappropriate.

[42] She also proposed that they now meet to discuss the findings. This meeting finally took place on 6 February 2017 with the Store Manager also attending. Ms Sullivan said Mr Krnjic told her that he had tried to discuss the matter with the Store Manager, but she had not been prepared to make time to meet with him. He also could not understand why the matter had escalated to this point.

[43] After a break in the discussions Ms Sullivan said she and the Store Manager decided it was appropriate for the first and final warning previously issued to Mr Krnjic to be extended for a further period of 12 months, which would commence from the date of his return to work. He was then informed of this decision.

[44] Bunnings also referred, in conclusion, to the relevant legislative provisions and to various authorities which have considered how these provisions should be applied and interpreted. It made particular reference to the decision of Vice President Hatcher in Amie Mac v Bank of Queensland Limited & Ors [2015] FWC 774 and his conclusions about what is required in order to be satisfied that “the worker reasonably believes that he or she has been bullied at work.” It referred, in particular, to the following extract from the decision:

“… not only must the requisite belief be actually and genuinely be held by the relevant person, but in addition the belief must be reasonable in the sense that, objectively speaking, there must be something to support it or some other rational basis for the holding of the belief and it is not irrational or absurd.” 23

[45] It continues to submit that this requirement has not been satisfied in the present application, based on the evidence now before the Commission. It next made reference to the requirement in the legislation that “an individual or a group of individuals repeatedly behaves unreasonably towards the worker.” 24 In this context it referred to the decision of Commissioner Hampton in Re SB [2014] FWC 2104, where he concluded:

“… 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.” 25

[46] It submits this decision makes clear that any assessment about what constitutes unreasonable behaviour should be judged on an objective basis having regard to all of the circumstances involved.

[47] Bunnings submits that the alleged bullying behaviour. In this case is based on what it describes as “four discrete conversations or interactions”. 26 These involve, firstly, the conversation between Mr Krnjic and Ms Morihovitis in May last year in which reference was made to his appearance and her accent, amongst other things. Secondly, the discussion on 8 June 2016 when Mr Krnjic was in the tool shop. Thirdly, the discussion on the next morning when Mr Krnjic was assisting another employee in another part of the store to scan some tickets and, finally, the conversation that took place later on that day after Mr Krnjic had returned from his lunch break.

[48] In its submission these circumstances, whether taken separately or in conjunction, cannot be said to constitute repeated and unreasonable behaviour. They instead involve “routine queries or directions from a supervisor to a team member as to the applicant's whereabouts in a busy and large retail environment.” 27 At the same time Bunnings does acknowledge that it was not appropriate for issues about Mr Krnjic’s appearance to have been raised in conversation by Ms Morihovitis, however, it continues to submit that the evidence still does not establish that Mr Krnjic has been bullied at work. It also submits that he was responsible in part for delays that occurred during the investigation process.

Consideration

[49] The submissions and evidence before the Commission in this matter makes clear that the circumstances involve two strong personalities who both have a genuine commitment to their work. Mr Krnjic, on the one hand, appears to have derived a significant degree of satisfaction from his employment. He has particular expertise in dealing with the products and services in the Electrical Department and is proud of the advice and assistance he provides to customers. It also appears that he has been prepared to provide support to other staff in the store as well. He has now been off work for some time, but would like to return to work as soon as possible.

[50] It is also clear that he has had some difficult issues with some employees that he has worked with during the time he has been employed by Bunnings. However, the submissions and evidence in these proceedings only concern what has occurred in more recent times and, in any case, the employees referred to previously are no longer employed at the Northland Store, and cannot be said to now represent a “risk that the worker will continue to be bullied at work” 28 in the future.

[51] The primary focus of this matter is instead upon the one individual who is named specifically, being Ms Jenny Morihovitis, who has been Mr Krnjic’s G4 or Team Leader since she was first employed by Bunnings in April last year. Mr Krnjic’s application also makes reference to the management in the Store, and their failure to acknowledge or act in response to his concerns.

[52] I have no reason to doubt that Mr Krnjic believes he has been bullied by being singled out and treated differently from other employees. However, that of itself is not sufficient to establish he has been “bullied at work” in the context of the legislative framework contained in the Act. I now turn to deal with the application against the background of that legislation, and the authorities that have considered how those provisions should be applied.

[53] As indicated at the outset, s.789FF requires that various pre-requisites be satisfied in order to establish that a worker has been “bullied at work.” It, firstly, requires that the employee “reasonably believes that he or she has been bullied at work.” 29 This in turn requires that not only must the belief be actually and genuinely held, but it must also be a reasonable belief when viewed objectively and not something that is, for example, based on an irrational or absurd view. The Commission must, secondly, be satisfied that “an individual” or “a group of individuals” have repeatedly behaved unreasonably towards the employee, and “that behaviour creates a risk to health and safety.30 The legislation also makes clear that “reasonable management action carried out in a reasonable manner”31 does not constitute bullying at work.

[54] These various requirements were considered in some detail by Vice President Hatcher in the matter of Amie Mac v Bank of Queensland Limited; Michelle Locke; Matthew Thompson; Stacey Hester; Christine Van Den Heuvel; Jane Newman [2015] FWC 774, which was handed down in February last year.

[55] After reviewing the various requirements of s.789FD in some considerable detail the Vice President came to the following conclusions about what the legislation requires:

“[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.

[90] The second observation is that unreasonableness and its converse, reasonableness, are familiar legal concepts applicable in a range of diverse contexts. In Giris Pty Ltd v Federal Commissioner of Taxation Windeyer J said: “It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law...”. Where, in an anti-bullying case such as this one, the requisite repeated unreasonable behaviour towards the workers is said to be constituted by or include unreasonable discretionary managerial decisions directed to that worker, some useful guidance may be obtained in assessing whether the definitional standard in s.789FD(1)(a) is met from decisions concerning judicial review of administrative discretionary decision-making. In Minister for Immigration and Citizenship v Li1 the High Court considered the standard of unreasonableness applicable to such decision-making. The plurality (Hayne, Kiefel and Bell JJ), in considering the well-known formulation of unreasonableness stated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation, said that the legal standard of unreasonableness “should not be considered as limited to what is in effect an irrational, if not bizarre, decision - which is to say one that is so unreasonable that no reasonable person could have arrived at it”. They concluded their analysis by saying: “Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”. That formulation provides a useful yardstick for the application of the provision in a case such as this one.

[91] The third observation is that in order for conduct to be reasonable, it does not have to be the best or the preferable course of action. In Bropho v Human Rights & Equal Opportunity Commission, in interpreting the word “reasonably” as it appeared in s.18D of the Racial Discrimination Act 1975 (Cth), French J (as he then was) said:

“[79] ... It imports an objective judgment. In this context that means a judgment independent of that which the actor thinks is reasonable. It does allow the possibility that there may be more than one way of doing things ‘reasonably’. The judgment required in applying the section, is whether the thing done was done ‘reasonably’ not whether it could have been done more reasonably or in a different way more acceptable to the court.”

[92] In considering whether there has been unreasonable behaviour by an individual or group of individuals, it will of course be necessary for the Commission to determine whether the alleged behaviour actually occurred. Once the Commission has made the necessary findings of fact about the behaviour, it can then determine whether the behaviour was unreasonable.

[93] The final element in the s.789FD(1) definition is that the relevant behaviour “creates a risk to health and safety”. In relation to this element, I respectfully agree with the following analysis of Commissioner Hampton in Re SB, which is supported by authorities (cited by the Commissioner) concerning analogous provisions in NSW workplace health and safety legislation:

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

[45] A risk to health and safety means the possibility of danger to health and safety, and is not confined to actual danger to health and safety. 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.”

[94] It is clear that it is not necessary for an applicant to demonstrate that he or she has suffered an actual detriment to health or safety - that is, actual illness or injury - in order to demonstrate the necessary risk. However, the existence of such an illness or injury may be relied upon as a manifestation of the necessary risk, provided of course that the requisite causal link to the unreasonable behaviour at work has been established.” 32

[56] I am satisfied, in summary, that the decision makes clear that it is first necessary to establish the existence of repeated unreasonable behaviour. This can extend to encompass a range of behaviours over different periods of time. Secondly, “unreasonable behaviour” can be viewed as behaviour that a reasonable person would consider to be unreasonable. The Vice President also provided the following additional observations about what constitutes “repeatedly behaving unreasonably.” The expression should first be considered in terms of the intention to prevent bullying at work. Secondly, “unreasonableness” should not be limited to something which is, for example, irrational, bizarre or so unreasonable that no reasonable person could have contemplated that course of action. It should instead be “applied to a decision which lacks an evident and intelligible justification.” 33 Thirdly, for conduct to be considered to be reasonable it does not have to be the best or the preferred course of action. The test instead involves consideration of whether something was done reasonably, and not whether it could have been done in a more reasonable or different way. Finally, it is necessary to establish that the relevant behaviour “creates a risk to health and safety.” This requires that there be some causal link between the behaviour and the risk to health and safety when viewed in a common sense and practical way. I have endeavoured to apply these principles and this approach to the determination of the present matter

[57] The first incident to be considered in the context of an individual “repeatedly behaving unreasonably” is perhaps the most significant in terms of the importance now attached to it by Mr Krnjic. It occurred during the course of a discussion with Ms Morihovitis, not long after she had first been employed by Bunnings, and was working in the Northland Store as Mr Krnjic’s G4 or Team Leader. The conversation took place while both were working in the Store stocking shelves. There is no dispute about what was raised in the discussion by Ms Morihovitis, which Mr Krnjic now claims he found “deeply disrespectful and hurtful.” 34 She asked him about his appearance and whether he had been like that since birth, or whether it was the result of a more recent injury or accident. However, there is a significant divergence of view about the context in which the question was asked. Mr Krnjic rejects the suggestion it was asked as part of a broader conversation. He also rejects the suggestion it was asked in the context of a concern for his health and safety.

[58] Ms Morihovitis paints a very different picture. As a newly appointed Team Leader in the Store she wanted to get to know each of her team members better, and had been involved in various discussions with each of them. On this occasion she and Mr Krnjic had been talking about their families and their family backgrounds, when she asked if she could raise another issue. Mr Krnjic raised no objection. She also said he did not take issue with her or appear upset when she asked the question and he answered calmly. He also asked her about her accent, which she was embarrassed and uncomfortable about, but she answered because she didn’t want to cause any upset. (Mr Krnjic did acknowledge in cross examination that he asked about her accent. 35) Ms Morihovitis also said her question was couched in the context of Mr Krnjic’s health and safety, and whether there were any issues impacting on him that she needed to be aware of in this context.

[59] I am satisfied, firstly, that Ms Morihovitis’ behaviour in raising the issue of Mr Krnjic’s appearance was, at best, insensitive and inappropriate. The investigation into the incident reached a similar conclusion. Mr Krnjic was a long-standing employee. Any issues impacting on his ability or capacity at work would have been known to other Managers or Supervisors and Ms Morihovitis could have satisfied herself by directing her enquiries in that direction. As indicated, she was also cautioned about her actions after a complaint was later made by Mr Krnjic. However, while describing Ms Morihovitis’ behaviour as insensitive and inappropriate, I am not concluding that she acted in a malicious way, or with an intent to cause harm or distress. She may well have been motivated by a genuine desire to get to know Mr Krnjic better, and by a concern to understand whether there was anything that had the potential to impact upon his health and safety. It is also noted that she was asked about things in the same conversation that made her feel uncomfortable. It also appears that Mr Krnjic did not raise a complaint about their conversation at the time, and it was only some weeks later in conjunction with other events that he raised the issue. This also suggests he did not consider the conversation to be of particular significance at the time it occurred.

[60] It is also evident that Ms Morihovitis’ actions at this point were a “one-off” and not something that formed any part of a pattern of repeated unreasonable behaviour.

[61] The remaining incidents occurred some weeks later over a period of two days. The evidence of both Mr Krnjic and Ms Morihovitis is consistent in some respects, in that it is acknowledged that Mr Krnjic was away from the Electrical Department for a time while retrieving the WAVE machine. He also assisted another employee in another Department during some of this time. Ms Morihovitis was concerned in response about these absences from his Department, and about where he was and why, and she confronted him about this on two occasions during that two-day period. However, the evidence then diverges in terms of how Mr Krnjic responded. He denies, in particular, that he responded by making “policewoman” references to Ms Morihovitis, and by refusing to speak with her on the phone. He claims instead that he was singled out and treated differently from other employees. He also claims that senior managers in the Store refused to speak to him about his concerns.

[62] Having reviewed the submissions and evidence I am, firstly, unable to conclude that Ms Morihovitis’s behaviour in these circumstances was unreasonable. A Team Leader with responsibility for a group of team members in a large retail store is entitled to understand where those team members are and what they are doing. A Team Leader is also entitled to expect that those same team members will engage in discussions about these issues when asked to do so. It is also acknowledged that Ms Morihovitis was relatively new to the Store, having only been employed in April last year. Her demeanour in the witness box indicates that she is a strong personality who has an equally strong commitment to her role at work. Her manner and her actions in the circumstances might also have been somewhat abrupt, and she might well have handled the situation with more sensitivity. In addition, as a newly appointed Team Leader her approach in dealing with her team members was likely different from her predecessors, and this may have created concern among some employees, particularly those of long-standing. However, these things alone are not enough to substantiate the serious claim of behaving in a way that can be said to constitute workplace bullying. In addition, given the evidence that is now before the Commission it is not possible to conclude that Mr Krnjic was singled out, micromanaged, or treated differently from anyone else in the same situation. That case is simply not made out based on the available evidence.

[63] The legislation also imposes a requirement for repeated behaviour. It is accepted that a limited number of examples of particular behaviour might constitute repeated behaviour and Commissioner Hampton in the decision in Re SB has made clear that there is no specific number of incidents required in this context. The present matter essentially involves two separate sets of circumstances. Firstly, the conversation that took place in May and, secondly, the issues to do with Mr Krnjic’s whereabouts in the Store in June. As indicated, it is acknowledged that a relatively limited number of incidents might constitute repeated behaviour. However, I am not satisfied that the events involved in the present circumstances can be said to demonstrate a concerted pattern of behaviour that involves repeatedly behaving unreasonably. It follows that I am again unable to conclude that they constituted bullying at work.

[64] However, these conclusions do not ignore the fact that there are some concerning aspects involved in all the circumstances of this matter. For example, it appears that Mr Krnjic was suspended from work after a complaint made by Ms Morihovitis without being given an understanding of why this occurred. He only received formal confirmation of this after making contact with Ms Sullivan in the corporate HR department. She then arranged for a letter to be sent to him detailing the allegations and what was proposed in response. In addition, it is regrettable that senior managers in the Store were not prepared to make themselves available to speak to Mr Krnjic about his concerns. It is also not clear why Mr Krnjic was given a directive that he not attended the Store as a customer until such time as he was cleared as fit to return to work. It should also be emphasised that I am not expressing any view in this decision about whether it was appropriate or not for Mr Krnjic to have been given a first and final warning, and for that warning to be extended by a further period of 12 months as a consequence of the circumstances involved in this matter.

Conclusion

[65] I have already indicated that this matter involves two strong personalities. Mr Krnjic has worked at Bunnings for some time and is understandably proud of his product knowledge and his ability to assist customers and other staff members. At the same time Ms Morihovitis is a relatively new employee and as a Team Leader was endeavouring to work with her team, and carry out her role and responsibilities in a way that she believed was appropriate and in accordance with what was expected of her by her employer. This involved her having a clear understanding about where her team members were and what they were involved in. Mr Krnjic was perhaps unhappy about this level of scrutiny and believed he should have a degree of autonomy in terms of how he carried out his role and responsibilities. All of these factors have clearly created a degree of tension and difference of view between Mr Krnjic and Ms Morihovitis. However, for the reasons set out in this decision I am unable to conclude in all the circumstances that Ms Morihovitis has repeatedly behaved unreasonably toward Mr Krnjic in a way that can be said that he has been bullied at work. It follows that his application must be dismissed. It is to be hoped that he is now in a position where he is able to return to work and resume his duties.

COMMISSIONER

Appearances:

J Krnjic on behalf of himself.

N Barkatsas of the Victorian Chamber of Commerce and Industry for the Respondent.

Hearing details:

2017.

Melbourne:

February 22

March 29

May 17

 1   Fair Work Act 2009 (Cth) s 789FC.

 2   Fair Work Act 2009 (Cth) s 789FD.

 3   Fair Work Act 2009 (Cth) s 789FF.

 4   Witness statement of Applicant, dated 3 March 2017 at p 7.

 5   Witness statement of Applicant, dated 3 March 2017 at p 7.

 6   Transcript at PN543.

 7   Witness statement of Applicant, dated 3 March 2017 at p 8.

 8   Transcript at PN712.

 9   Transcript at PN804.

 10   Witness statement of Applicant, dated 3 March 2017 at p 11.

 11   Witness statement of Applicant, dated 3 March 2017 at p 12.

 12   Ibid.

 13   Witness statement of Neville Pitt, dated 16 June 2016.

 14   Ibid.

 15   Witness statement of Elizabeth Lett, dated 17 August 2016.

 16   Attachment to witness statement of Applicant, dated 3 March 2017, “Independent Medical Examination conducted by Dr Richard Prytula”, dated 11 August 2016, at p 9.

 17   Ibid.

 18   Ibid.

 19   Respondent’s Outline of Submissions, dated 22 March 2017, at [15].

 20   Exhibit B1 at [15].

 21   Exhibit B1 at [22].

 22   Exhibit B1 at [25].

 23   Amie Mac v Bank of Queensland Limited; Michelle Locke; Matthew Thompson; Stacey Hester; Christine Van Den Heuvel; Jane Newman [2015] FWC 774 at [79].

 24   Fair Work Act 2009 (Cth) s 789FD.

 25   Re SB [2014] FWC 2104 at [41].

 26   Transcript at PN742.

 27   Transcript at PN750.

 28   Fair Work Act 2009 (Cth) s 789FF(1)(b)(ii).

 29   Fair Work Act 2009 (Cth) s 789FC(1).

 30   Fair Work Act 2009 (Cth) s 789FD(1).

 31   Fair Work Act 2009 (Cth) s 789FD(2).

 32   Amie Mac v Bank of Queensland Limited; Michelle Locke; Matthew Thompson; Stacey Hester; Christine Van Den Heuvel; Jane Newman [2015] FWC 774 at [87] to [94].

 33   Ibid at [90].

 34   Witness statement of Applicant, dated 3 March 2017 at p 7.

 35   Transcript at PN530.

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