DECISION

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

Ms Caroline McCutcheon
v
Fine Wine Wholesalers Pty Ltd; Mrs Veronica Lawrence
(AB2017/625)

Application for an order to stop bullying – no repeated unreasonable behavior – reasonable management action – application dismissed.

[1] On 25 November 2017, Ms Caroline McCutcheon (Ms McCutcheon) made an application to the Fair Work Commission (the Commission) under section 789FC of the Fair Work Act 2009 (Cth) (the Act) for an order to stop bullying conduct she alleged had taken, and may in the future take place, within her workplace (the Application). The workplace concerned is Fine Wine Wholesalers Pty Ltd (Fine Wines), a wine wholesaler selling wines and spirits in the hospitality industry located in Western Australia.

[2] Ms McCutcheon commenced her employment as a Sales Area Manager with Fine Wine on 27 April 2015. She is a full time employee and continues to be employed.

[3] Ms McCutcheon alleges that she has been subject to bullying conduct during the course of 2017 by the Managing Director of Fine Wines, Ms Veronica Lawrence (Ms Lawrence). From 23 November 2017, Ms McCutcheon had been absent from work having submitted a WorkCover WA Medical Certificate.

[4] Fine Wines and Ms Lawrence deny the allegations of bullying conduct. They assert some of the alleged conduct did not occur at all. They claim other alleged conduct was not bullying as it constituted reasonable management action conducted in a reasonable manner.

[5] It should be acknowledged from the outset that both parties had spent much time in preparation for the hearing. It followed that the material filed and thereafter tendered by the parties was voluminous, and at times some submissions were somewhat prolix. However, I consider that I have distilled from the material and evidence before me that which I consider relevant to determining the issues at hand. This does not in any way suggest that some evidence or a submission has been overlooked. But, as is always the case, all the evidence of the parties cannot be replicated verbatim, and some submissions were more on point than others.

[6] Having considered all of the evidence before me and the submissions advanced by both parties, I have not found that Fine Wines and Ms Lawrence did not repeatedly behave unreasonably toward Ms McCutcheon and my reasons why I have dismissed the Application follow.

BACKGROUND

[7] Ms McCutcheon was initially employed as an Area Manager, but with the departure of a Key Account Manager, Ms Lawrence decided to split that Key Account Manager role between all five Area Managers and the territories (geographical areas for which the Area Manager was responsible for) were revised. Ms McCutcheon was provided with a more senior title but retained a geographical area of responsibility 1 and for the purpose of this decision is simply referred to as an Area Manager.

[8] Ms McCutcheon’s position involved servicing approximately 190 accounts in the metropolitan area and 55 regional accounts 2. According to Ms Lawrence, Ms McCutcheon had the least amount of accounts to service; the regional accounts were serviced physically by one attendance per year and tele marketed monthly3.

[9] It was said that an Area Manager is required to complete 8-12 visits to customer premises per day following their Journey Planner 4. The Journey Planner is a document detailing the territory of the Area Manager set out by day and by week in geographical runs over a 4, 6 or 9 week cycle with top accounts called on at the start of the month5.

[10] Ms Lawrence’s evidence was that given Ms McCutcheon’s number of accounts in her territory, her Journey Planner should have included 5 existing customers on average per day plus 3 to 5 customers per day which were accounts that Fine Wine wanted to convert into active customers 6. However, it was the case that Ms McCutcheon’s Journey Planner was rarely completed7.

[11] An Area Manager’s daily routine includes the preparation of a run sheet each morning based upon their Journey Planner, regional telemarketing and corporates. Telemarketing and servicing corporates is not something that an Area Manager works on every day, such activity therefore necessitates inclusion on the daily run sheet when plans are in place to undertake these tasks 8. The run sheet is emailed each day to the Sales Support Manager or Ms Lawrence by 9.00am9.

[12] After preparation of the run sheet the Area Managers go out to visit customers entering data in real time into Opmetrix via their iPads. The iPads are connected through mobile phone networking back to the office of Fine Wines 10.

[13] Ms Lawrence explained that a visit to a customer’s premises would entail a check of stock on hand, complete stock takes, target and propose new wines, close the deal, place the order and set the call up for a return visit 11. A visit to a restaurant included analysis of the restaurant menu and wine list to identify gaps, preparation of a suggested wine list to meet the requirements of the business and its manger, including offering to design and print a complete wine list12.

[14] Each time a visit to a customer is made or a call is placed, Ms McCutcheon was required to open the customer account on Opmetrix 13. Within Opmetrix the procedure for a sales call is said to be detailed and includes agreed pricing, special delivery details, date of completed wine lists and other details (collectively the calling card).

[15] At times an Area Manager is expected to arrange a winemaker day for a supplier between the hours of 9.00am until 7.00pm-10.00pm including an end of day tasting or winemaker dinner 14. The winemaker days are scheduled in advance and Fine Wines is said to have procedures for conducting all dinners/events, which include the procedures for ordering the wines for the dinners, how the wines are charged out and so forth15.

[16] Each Area Manager has a budget by value, which is based on the territory they cover and is linked to their salary by way of commission 16. The budget is the key performance indicator for determining an Area Manager’s performance17. The budget is developed annually and is based on sales history of the previous recent years plus an amount added from the previous year actual to accommodate new business and price increases18. It is usual that the budget increases by 3-9% each year.

[17] Ms McCutcheon’s position was referred to as being ‘on premise’. Being ‘on premise’ meant that she had more interaction with winemakers than anyone in the Sales Team because she was required to look after restaurants and bars. In contrast, being off premise meant servicing liquor stores where an Area Manager could be in and out in ten minutes 19.

[18] On 7 July 2017, Ms Lawrence presented a report to Ms McCutcheon identifying accounts in Ms McCutcheon’s territory with a breakdown of the number of accounts and calling structure.

Ms McCutcheon’s performance

[19] Ms Lawrence’s evidence was that Ms McCutcheon’s call rate was 3 to 4.3 calls to trade customers a day and the regional telemarketing had been neglected by Ms McCutcheon and consequently had been moved to office staff to undertake from August 2017. The sales from Pilbara and Kimberley telemarketing were still allocated to the sales for her territory. Ms McCutcheon’s sales for 2017, prior to going on personal leave, were at 80% of budget, which was similar to the year prior, said Ms Lawrence.

[20] Ms Lawrence said that she had discussed with Ms McCutcheon on several occasions in sales meeting and in one to one discussions about her failure to follow a well-planned Journey Planner 20. In general Ms McCutcheon lacked attention to detail and her instructions to the Sales Team were haphazard according to Ms Lawrence21.

[21] According to Ms McCutcheon, part of her role as an Area Manager on premise, meant that she had more interaction with winemakers than anyone in the sales team 22. Ms McCutcheon continued that sometimes she would have two different winemakers in one week, which was a big deal on the road because her average day would commence at 6.30am doing administration and preparation, and then she would collect a winemaker by 7.45am and spend the day on the road with the winemaker23. Ms McCutcheon said that she was required to write a report of the event that evening and submit photos first thing in the morning to enable Ms Gianotti, Sales Support Manager (Ms Gianotti), to upload the photos on the social media platform for Fine Wines24.

[22] There were times when Ms McCutcheon was too tired to send through a report of the event and the next day an email would be sent to the effect of ‘Under most circumstances, anyone who has a winemaker on the road has a wine dinner, I expect that the report to be delivered on the same evening and then my colleagues would say to me: “You must have been in trouble. You’ve obviously not done that”’ 25. Ms McCutcheon reports having felt absolutely embarrassed and humiliated26.

[23] Ms Lawrence’s evidence was that Ms McCutcheon’s budget was increased by only $10,000 (unlike other Managers who had a $400,000 increase) because she never met budget previously.

March 2017

[24] Ms Lawrence said that in March 2017, Ms McCutcheon had approached customers of Fine Wines to solicit references for her performance review. She did so without the approval of Ms Lawrence 27.

Winemakers’ Event 27 June 2017

[25] Ms McCutcheon was responsible for arranging a winemaker event on 27 June 2017. It followed, according to Ms Lawrence that it was up to Ms McCutcheon to arrange the dinner or tasting of some sort, as part of that day 28. Ms McCutcheon was informed of the event through a supplier visit calendar that was circulated in February and it was said that she received several reminders of the event in the months and weeks prior to the sales meetings and through emails29. Ms Gianotti said that she sent reminders to Ms McCutcheon in the daily email bulletin on 14 June, 21 June and 22 June 2017 to ensure she organised the function30.

[26] It was expected that Ms McCutcheon would book the restaurant, invite various customers to the dinner, check with the restaurant that supply the wines, liaise over the menu and book the wines out through Opmetrix to be picked, packed and delivered at least the day before to be chilled and ready for the event 31.

[27] Ms Gianotti said that she had found out that Ms McCutcheon had not put in an order for any wines on the day of the actual event 32, and ended up picking up the wines and delivering them to the function33.

[28] Ms Lawrence arrived at the venue for the event 15 minutes prior. The owner of the restaurant informed Ms Lawrence that a booking had been made, but he was unaware that a wine maker and trade customers were attending and that wines would be supplied 34. Further, there had been no arrangements regarding the menu so Ms Lawrence resolved this with the owner35.

[29] When Ms McCutcheon arrived at the event Ms Lawrence said she made light of Ms McCutcheon’s oversights and said that Ms McCutcheon owed Ms Gianotti some flowers for delivering the wines at the last minute, as she had saved the day 36. Ms Lawrence and Ms Gianotti observed that Ms McCutcheon did not take kindly to Ms Lawrence’s remark about buying flowers and thereafter asked twice to discuss it with Ms Lawrence notwithstanding that they were in front of customers37. Ms Lawrence declined the request and informed Ms McCutcheon to discuss it with her tomorrow. Prior to guests being seated at the event, Ms McCutcheon informed Ms Lawrence that she was going to go home38.

[30] Ms Lawrence escorted Ms McCutcheon away from the group and spoke to her. Ms McCutcheon informed Ms Lawrence that she was going to leave Fine Wines 39. Ms Lawrence said that she then asked Ms Lawrence to think about what she was saying and to keep things in perspective40. Ms McCutcheon agreed to stay for the remainder of the event. Ms Lawrence went home having agreed to discuss the matter with Ms McCutcheon the next day.

[31] Ms Susan Hutchinson, customer at the event (Ms Hutchinson), gave evidence that Ms Lawrence repeatedly said to Ms McCutcheon that she should give Ms Gianotti flowers because she had brought the wine 41. Ms Hutchinson observed that at first Ms McCutcheon laughed off the comment but as Ms Lawrence persisted, Ms McCutcheon said ‘I don’t think I need to give any flowers’42. Ms Hutchinson observed that Ms Lawrence and Ms McCutcheon went to a separate area of the venue and spoke for approximately five minutes43. On their return Ms Hutchinson said Ms McCutcheon looked clearly upset and Ms Lawrence looked annoyed44. Ms Hutchinson added that not long after being seated at a table Ms Lawrence said to Ms McCutcheon ‘I’ve organised some starters because you probably haven’t done that’45. Ms Hutchinson felt that the exchange between the two was ‘very, very uncomfortable’46.

[32] The next day Ms Lawrence and Ms McCutcheon discussed the previous night’s events and again Ms McCutcheon threatened to resign 47. Ms Lawrence said she asked Ms McCutcheon if that was really what she wanted, and outlined to her that had she followed procedures none of what was experienced would have happened48. To resolve the issue Ms Lawrence allocated one of the sales support staff to assist Ms McCutcheon for an hour each Friday49. Ms McCutcheon said the arrangement did not last as Ms McCutcheon was not sufficiently organised to email an outline of what she wanted prior to the meeting with the support staff member50. Ms McCutcheon had a contrary view why the arrangement did not last.

Christmas 2017 complaint

[33] Fine Wines received a complaint concerning Ms McCutcheon prior to Christmas 2017 51. A customer had attempted to place an order based on information that Ms McCutcheon conveyed. However, the calling card that Ms McCutcheon had submitted was deficient and Ms McCutcheon had not informed the customer the correct information concerning the Christmas deals52. The customer had become heated in his discussions with Ms McCutcheon and Ms Lawrence asked Ms McCutcheon to have a face to face discussion with the customer to resolve things53. Ms Lawrence ultimately liaised with the customer to remedy the situation54.

Other performance issues

[34] Ms Lawrence gave evidence that Ms McCutcheon had poor time keeping skills, referring to her tardiness regarding an event in February 2016 and a lack of wine knowledge. Ms McCutcheon had committed to making it a priority to learn about wine including the completion of the Wine and Spirit Education Training level 2 and 4 course, but had not done so. Ms McCutcheon’s evidence was that she had not engaged in any misconduct, there were no performance issues and she was never given any performance management 55.

[35] Ms Lawrence said that Ms McCutcheon’s data entry on Opmetrix was often incorrect and needed to be checked by the Sales Support Team, or alternatively she failed to place or process orders. This view was shared with Ms Amanda Goodhew, Office Manager (Ms Goodhew), who had observed that Ms McCutcheon was somewhat disorganised in relation to the administrative aspects of her role, and frequently sent through portions of work that were incomplete 56.

[36] Ms Lawrence had opted to persevere with Ms McCutcheon because notwithstanding the abovementioned issues, Ms McCutcheon presented well and had developed a good rapport with a number of customers. However, Ms McCutcheon’s performance had deteriorated over the past 12 months according to Ms Lawrence 57.

Comments concerning Ms McCutcheon’s boyfriend

[37] Ms McCutcheon asserted that Ms Lawrence had made adverse comments about her boyfriend (the Boyfriend) in a sales meeting in March 2017 58. Ms McCutcheon’s account was that Ms Lawrence had insinuated that her Boyfriend was going to break her heart as he likes younger girls59. Ms McCutcheon said that the comments had been constantly ongoing and had led her to feel insecure and less confident in herself60.

[38] Ms Lawrence explained that she had known the Boyfriend for 10 years prior to him working for Fine Wines for a period of seven years 61. The Boyfriend had sent Ms Lawrence a text message of him and Ms McCutcheon, and in the sales meeting the subject of the romance was referred to. Ms Lawrence said that she contributed to the conversation stating ‘watch out he doesn’t break your heart, he’s a party boy’62.

Comments about Ms McCutcheon’s appearance

[39] Ms McCutcheon stated that Ms Lawrence had made untoward comments about her appearance that included that she looked like Barbie 63. Ms McCutcheon gave evidence that Ms Lawrence commented on her dress code and shoes64 and that she found this insulting and hurtful especially as there was a room full of people on such occasions65.

[40] Ms Lawrence’s evidence was that Ms McCutcheon presented exceptionally well and is very good looking 66. Ms Lawrence denied making untoward comments albeit that she recalled asking Ms McCutcheon what had happened when one day she arrived at work with red swollen eyes67, and had in the past commented that with regard to makeup, she preferred Ms McCutcheon’s natural look68.

[41] There was in addition an assertion that Ms Lawrence had suggested that the female Area Managers wear revealing clothing to achieve sales 69. Ms Lawrence said that she could not recall even joking about unbuttoning buttons and considered it was banter amongst the Sales and Administrative Team70. However, Ms Lawrence recalled that Ms Gianotti had put this phrase in a daily email some time previously and she had asked Ms Gianotti not to use that phrase in written communications71.

A trip to Kuala Lumpur for dental work

[42] In October 2017, Ms McCutcheon asked Ms Lawrence if she could take annual leave in late October to early November to have dental work done overseas. Ms Lawrence did not say no but reminded Ms McCutcheon it was a busy time of year and to look at finding another way to have her dental work completed 72.

[43] On 23 October 2017, Ms McCutcheon sent a text message to Ms Lawrence informing her about a hospital admission and that she could call ‘Dr Yusif’ at Mindarie Harbourside Medical Centre 73. Ms Lawrence was surprised by the hospital admission because she had seen pictures on Facebook of Ms McCutcheon socialising the night before74.

[44] Ms McCutcheon submitted a medical certificate to Fine Wines on or about 24 October 2017 for a period of absence from 23 to 27 October 2017. On 28 October 2017, Ms Lawrence received an email from the Boyfriend regarding a further medical certificate for Ms McCutcheon from Dr Mutahar of Harbour Side Medical Centre (Dr Mutahar), which deemed Ms McCutcheon unfit from 30 October 2017 until 9 November 2017, inclusive.

[45] Ms Lawrence arranged for the collection of Ms McCutcheon’s iPhone and iPad to ensure that she would not have the pressure of dealing with incoming calls and work emails/messages 75. A spare mobile for personal use with a prepaid sim was provided to Ms McCutcheon76. On receipt of the iPad, Ms Gianotti went through the emails and transactions to look to see what had to be followed up77. When doing so, Ms Gianotti came across notes which indicated that Ms McCutcheon had been making enquiries of dentists in Kuala Lumpur to obtain dental work78, and arranging accommodation for the period 27 October 2017 until 8 November 201779.

[46] The two notes on the iPad read:

Renaissance Hotel 5 start KL – 6 nights $574!

Flight 30/10-6/11 $240 – Fly Air Asia (go sky scanner) 31/10/17 cheaper

$814 Total Cost

Park Royal KL – 5 Star – 6 Nights $580

Mon 16/10/2017 6:36PM

KL Leave (sick)

Leave Oct 30^th

Return Nov 6/7^th

5/6 Business Days

Waiting on Dentist Update in KL

Tue 17/10/2017 1:09AM

[47] Both notes included a date and time stamp. Those stamps were inserted on the Notes in the iPad by Ms Gianotti. Ms McCutcheon’s evidence initially was that she did not recognise the two notes 80, but she quickly corrected that she recognised the top note but not the bottom81. Ms McCutcheon conceded at least 16 October 2017 she had been making enquiries about the trip to Kuala Lumpur82. Concerning the second note, Ms McCutcheon denied that she had made it and stated ‘the system can be manipulated’ when it was observed that Ms Gianotti’s evidence was that she retrieved the note off Ms McCutcheon’s iPad and the iPad had been in Ms McCutcheon’s sole custody on 17 October 201783.

[48] While Ms McCutcheon had a Fine Wines mobile for her personal use, having had it dropped off to her whilst absent from work, she did not call Ms Lawrence to notify of the subsequent absence. Therefore, on 30 October 2017, Ms Lawrence called Ms McCutcheon to enquire how she was 84. Ms McCutcheon informed Ms Lawrence that her condition was under control; she was doing well and was focused on getting her dental work completed85. In response, Ms Lawrence queried whether Ms McCutcheon was going to Kuala Lumpur and whether her doctor knew86. Ms McCutcheon confirmed that she was going and that her doctor knew87. When giving evidence Ms McCutcheon said that she did not think ‘even Dr Yusof was aware at the time’88:

You hadn't told him, so that's a fair assumption.  He didn't know, did he?  He didn't know of the plan to go overseas?---I never had this plan to go overseas.  I took it upon myself when I was unwell at home, and the reason why I had done it was because I was thinking Mrs Lawrence had said the best time for the business was end of October, start of November.  I was off unwell, I thought, "How can I do this?  Jump on a flight, I get my tooth fixed and rest at the hotel."  I swear on oath that's exactly what I done.  I never went out, I never went anywhere, I stayed in the hotel and I rested 89.

[49] Ms Lawrence said that she expressed to Ms McCutcheon that she could take annual leave but that she was going to challenge the medical certificate as she was not comfortable with her going overseas on sick leave 90. Ms McCutcheon departed for Kuala Lumpur on or around 1 November 2017 and planned to return when the medical certificate expired91.

[50] Ms Lawrence contacted the Australian Health Practitioner Regulation Agency (AHPRA) to complain about the General Practitioner, Dr Mutahar, issuing a medical certificate knowing that the patient was going on overseas travel for elective dental work 92. On 17 January 2018, Ms Lawrence received a letter in response from AHPRA stating that the General Practitioner was unaware that Ms McCutcheon was travelling overseas93.

Harbourside Medical Centre

[51] Ms Lawrence said that she made one phone call to Harbourside Medical Centre (Centre) and asked to speak to Dr Mutahar, Ms McCutcheon’s primary care physician, who she was advised by reception was unavailable 94. Ms McCutcheon disputed this and asserted that Ms Lawrence had made more than one phone call to the Centre95.

[52] Ms Lawrence said she asked to speak to the Practice Manager and was told that person was unavailable so Ms Lawrence asked if she could leave her number and have her call returned 96. No one from the Centre returned Ms Lawrence’s call. Ms Lawrence gave evidence that she wanted to speak to a General Practitioner to clarify that the Practitioner was providing a medical certificate knowing the patient was travelling overseas97.

[53] Dr Mutahar gave evidence that while there was one occasion that Ms Lawrence admitted contacting the Centre, she had made contact on multiple occasions. Dr Mutahar said that four days after 22 October 2017, the Centre received quite a disturbing call from Ms Lawrence who demanded to speak to him 98. Dr Mutahar continued:

Subsequent to that phone call, multiple other phone calls were made by Ronnie Lawrence.  These were witnessed by myself.  These changed from harassing phone calls to threatening our staff, making accusations.  They affected the mental state of our reception staff.  She threatened to damage our business and also that the phone calls got to the point, Ronnie Lawrence actually stated that she - we needed to transfer her medical records, Caroline McCutcheon's medical records to her.  Which is obviously against patient confidentiality which we completely denied on multiple times 99.

[54] Ms Pam McKenzie, a receptionist at the Centre, received the phone call from Ms Lawrence and in that respect said the following:

Okay, yes, when she called, of course, I didn't know what the call was about.  She didn't - she came across very aggravated and sort of aggressive in her manner.  She said that she has received Caroline's medical certificate and it does not - and she didn't understand how the doctor, meaning Dr Yusof Mutahar, could write a medical certificate for a period of her going overseas for elective surgery.  At this stage, I had absolutely no idea what she was talking about as patient/doctor confidentiality is not something I deal with, so it was hard for me to pick up on what she was talking about to start with.  So she went through and she said that the doctor had no right to write her a medical certificate so that she could go overseas, take time off work to go overseas and, like I said, I had no idea as to what she was talking about.

She then continued on threatening legal action and saying that she had got legal advice on the issue because she didn't understand what was going on, but she was also very angry and - I think it's Mrs Ronnie Lawrence - demanded to speak with Dr Yusof Mutahar immediately.  I explained to her that Dr Yusof Mutahar was away and he wasn't due back until the following week.  I offered to take a message for her to pass on to him, but she was very, very insistent and angry, continually interrupting me, and she demanded - first of all, she said that it wasn't suitable and would like to speak with the owner of the medical centre, and I said, "Well, the owner of the medical centre's also a doctor and he's in a patient consultation" and I would pass on the message if she would like to leave one with me, and she basically just hung up 100.

[55] The Centre’s progress notes on Ms McCutcheon (Exhibit A5) include a notation ‘[A]lso note that patient employer tried to call the practice and spoke with the staff’. There were no further notations in the medical notes to show that Ms Lawrence had contacted the Centre 101, and it appeared to be common practice that phone calls such as the one Ms Lawrence made would be notated in the patient’s medical record102. Ms McKenzie said she received no further calls from Ms Lawrence, but noted that she worked part-time.

[56] Mr Naeem Noori the Practice Manager for the Centre gave the following evidence:

Concerning the calls, the calls were said to have been made by a lady who's also responded to this matter, a Ms Ronnie Lawrence, do you have any knowledge of any calls made by a Ms Ronnie Lawrence, concerning a patient of the practice, Ms Caroline McCutcheon?---When I was told about this story, I heard this before, I don't even remember a call, or I don't know about Caroline, I don't know about Ronnie.  I went through the system, the procedure was very (indistinct) or any issue, or anything of concern, or anything which we think is important to record, which is unusual kind of.  It's recorded on the medical director's record.

Okay?---I had a thorough look throughout all of Caroline's records, there was one call in which one of the receptionists, Pam McKenzie, wrote out the details of that, she had a call regarding one of - that Ronnie was complaining and all of the - she had all of the stuff that she wanted to speak to the doctor, the doctor was on annual leave, or something.  He was not available and then she was advised that she will get the message to him.  Probably she was complaining that he issued the medical certificate for treatment for something, you know, but I had a look through all of the medical certificates throughout the history of Caroline, there was nothing like that.  There were normal medical certificates, like when you go to the doctor that doesn't mention a reason, it says that we recommend that this person stays off work for, say, one week or two weeks or something like that, there was one of those.  There were a couple of psychologist things, that probably Caroline has seen a psychologist.

That's okay.  We're mainly interested concerning any notation.  So your evidence is, and please inform me if I have it incorrect, that it's usually the case that if there is such a phone call, or a grievance or something raised, with regard to a matter such as an inquiry, that would be recorded on the patient's medical record.  You've undertaken a review of the medical record of Ms Caroline McCutcheon and you've noted that there was one such call from Ms Ronnie Lawrence, which you've referred us to?---Yes.  Yes 103.

Ms McCutcheon’s well being

[57] Dr Mutahar gave evidence that he had seen Ms McCutcheon a total of 40 times since her first appointment on 4 August 2017, he was her primary care physician and as of 20 October 2017 she had mentioned having stress at work but was not depressed 104. Dr Mutahar said:

I'd just like to give a conclusion point, if that's okay.  In conclusion, being the primary care physician of Caroline McCutcheon and seeing her approximately 40 times over a significant period of time, I am in a good position to give my opinion that when I first saw Caroline, there was no history of mental health disorders.  She had never had a history of depression, she had never been on antidepressants.  Her mental state examination was always normal.  She was a highly motivated individual who put her work first, even in front of her illnesses, despite at times giving her recommendations to stay off work.

However, due to her alleged workplace bullying, I saw a significant deterioration in her mood and despite getting a multidisciplinary team involved, she developed depression, which in my opinion, was directly a result of her workplace bullying from her employer.  She displayed all the cardinal symptoms of depression.  Her concentration was low, her mood was low, her affect was low, she was emotional.  Thus far, she has responded well to the antidepressants and she has been compliant with them, and compliant with the follow-up 105.

[58] In cross examination Dr Mutahar was asked that when informing himself what may or may not have occurred at Fine Wines whether he had relied on others rather than just Ms McCutcheon, he responded:

Have you relied on others, other than Ms McCutcheon in informing yourself as to what may or may not have occurred in the respondent's workplace?---Yes.

Who is that?---That's Ronnie herself.

You said just earlier that you had never had a communication with her.  You now change your testimony?---I have communicated - but she has communicated with our staff on multiple occasions.

Let me ask that question again.  I'm being given two answers with respect.  You said earlier in your evidence you'd never spoken to her?---Correct.

You're now saying that you have, which one is it?---She has communicated to our staff at the practice.

That's not you.  Has she spoken to you?---She tried to speak with me.

But she didn't?---But I did not speak to her 106.

[59] However, in cross examination Dr Mutahar admitted that as early as 7 September 2017, Ms McCutcheon had requested a mental health plan in circumstances where that had been no complaint of mistreatment in the workplace but an indication of other stressors occurring in her life 107.

A return to work

[60] Ms McCutcheon returned to work on 8 November 2017. Whilst Ms Lawrence was on bereavement leave at this time she returned to meet with Ms McCutcheon and informed her that she was disappointed with the way she had gone about the trip and that the planning of the trip had been found on the iPad 108, and that the information that had been on her calling cards had been insufficient for Fine Wines to build upon in her absence and the tasks could not be followed up109. Ms Lawrence recalls that the meeting was calm, that Ms McCutcheon reported feeling better and that she instructed Ms McCutcheon that going forward she must follow Fine Wines’ procedures110. Later that evening Ms Lawrence received an email from Ms McCutcheon that she was delighted to be back and was feeling extremely healthy111.

[61] Ms McCutcheon’s recollection of the meeting on 8 November 2017 differed. She recalled that Ms Lawrence expressed that she was ‘disappointed’ and ‘absolutely disgusted’ in her 112. Ms McCutcheon said that Ms Lawrence remarked ‘the way you left my business, you put the office under pressure. You caused angst’113. Reference was made to the period taken and that it should have only been two or three days114. Ms McCutcheon said that she felt verbally attacked, humiliated and felt that she was being spoken to like a child115.

[62] On 10 November 2017, Ms McCutcheon visited Ms Lawrence at home and brought with her flowers and a sympathy card 116. Ms Lawrence said that Ms McCutcheon stayed for approximately an hour and had a glass of wine with her and her husband before hugging her goodbye on departure117.

[63] On 22 November 2017, Ms Lawrence reviewed the sales records and noted that on 20 November 2017, Ms McCutcheon’s sales budget was $17,173.00 and actual sales were $1,552.00 118. Similarly, sales were down on the next day, and on 22 November 2017, Ms Lawrence noticed that Ms McCutcheon had not entered any calling cards on the system and only one order (from a phone in)119. Ms McCutcheon explained that on 19 November 2017, she had exceeded expectations by making $24,000.00 of sales120 and the two months prior she was the only Area Manager who had landed 96% of budget121.

[64] Ms Lawrence called Ms McCutcheon on 22 November 2017 and enquired what she was doing to which Ms McCutcheon said she was dealing with a big corporate account that had fallen through, but refused to provide further detail 122. Ms McCutcheon provided evidence that the big corporate account was through a friend of a friend who was having an event at Mindarie Marina and they were going to be placing an order123. Although persistently questioned on the point in cross examination, Ms McCutcheon was not forthcoming with the name of the corporate account although she later referred to the name ‘Rod’124.

[65] Ms Lawrence said that according to Opmetrix, Ms McCutcheon had no trade customers for that day 125. Ms McCutcheon informed Ms Lawrence that because Ms Lawrence had required that she work late the night before that was the reason for no customers. Ms Lawrence said that she responded that she had not requested Ms McCutcheon to work late and all that was expected was that she follow her Journey Planner126.

[66] At approximately 4.00pm on 22 November 2017, Ms McCutcheon presented to the Fine Wines office and dropped off on a colleague’s desk absent explanation her iPad, iPhone and a workers’ compensation medical certificate 127. All telephone records and emails had apparently been deleted between 19 November 2017 and 21 November 2017 so Fine Wines was unable to determine any arrangements made with customers128. The following day, on 23 November 2017, Ms McCutcheon made her Application.

[67] Ms McCutcheon having lodged the workers’ compensation claim expressed that Ms Lawrence had caused the workers’ compensation insurer not to pay out her claim 129, and asserted that she had been informed this by Allianz. However, when questioned in cross examination, Ms McCutcheon’s evidence was that she had been informed that her ‘employer is disputing the claim against you’130.

[68] During the course of the proceedings Ms Goodhew gave evidence that with regard to Ms Lawrence providing feedback that ‘unfortunately people take this negatively and misconstrue her behaviour’ 131. Ms Goodhew expanded on this and said:

So Ronnie may contact one of the sales rep's customers that she knows well and assist them in achieving a sale and sometimes, you know, in that help they may take it the wrong way but it's her assisting them to reach their budget and their target.  And that sometimes can result in - she's actually trying to help them and get them the commission and get the company to budget, to be able to bring the money in, and sometimes that's misconstrued as she is sort of trying to take over or - but then later when there's a meeting to discuss the account, it's positive and the rep then has more direction of how they need to move forward with an account 132. 

[69] I am left with the ineffaceable impression that there now exists between the parties acrimony.

LEGAL FRAMEWORK

[70] I am satisfied that the conduct alleged by Ms McCutcheon is said to have taken place in a workplace that is conducted by a ‘constitutionally-covered business’ under ss 789FD(3) of the Act.

[71] The Commission must apply the statutory definition of bullying set out in ss 789FD(1) and (2) of the Act:

(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.

[72] Management action includes management discussions and decisions about how work is done and everyday actions to effectively direct and control the way work is done 133. The Commission must determine whether the management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’134.

[73] To satisfy the Commission that bullying occurred, Ms McCutcheon must be able to demonstrate that the decision to take management action or the management action itself lacked any evident and intelligible justification such that it would be considered by a reasonable person to be unreasonable in the circumstances 135. In Amie Mac v Bank of Queensland Limited and Others136, the Vice President made the following observation with regard to ascertaining whether the introduction of a performance improvement plan was justified:

To determine whether any of Ms Mac’s explanations fully rebutted the examples of underperformance identified would require a micro-analysis of each relevant event which is simply not possible on the evidence before me. More importantly, I do not consider that an assessment of whether the imposition of the PIP on Ms Mac was unreasonable requires the Commission to engage in the process of attempting to form its own judgment as to whether her overall performance was satisfactory or not and to substitute its judgment for that of the relevant BOQ managers and supervisors. Even if a different and better opinion of Ms Mac’s work performance could legitimately be formed on the evidence before me, that would not be sufficient to show that the decision to introduce the PIP was unreasonable. What is necessary is for Ms Mac to demonstrate that the decision to introduce the PIP lacked any evident and intelligible justification such that it would be considered by a reasonable person to be unreasonable in all the circumstances. For the reasons already stated, Ms Mac has not succeeded in demonstrating this. There was an evident and intelligible justification for the PIP based on the earlier identification by experienced persons who managed or supervised her of shortcomings in her performance and the assessments she received through the documented PDA process.

[74] The Commission is only able to make orders to stop bullying as provided for by s 789FF of the Act. Orders to stop bullying can only be made if bullying (as defined) has occurred and if ‘there is a risk that the worker will continue to be bullied at work by the individual or the group’ 137.

[75] The power to make a bullying order is discretionary. While the Commission may make any order it considers appropriate, it has no power to make an order requiring payment of a pecuniary amount. Any orders made must be preventative in nature, that is, forward looking; they must be designed to ‘prevent the worker from being bullied at work by the individual or the group’ 138.

[76] In considering the terms of an order, the Commission must take into account:

(a) if the FWC is aware or 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 139.

SUBMISSIONS

Ms McCutcheon

[77] The essence of Ms McCutcheon’s case included that Fine Wines and Ms Lawrence:

➣ had spread untrue malicious rumours in front of the sale team regarding her Boyfriend;

➣ had made humiliating remarks to Ms McCutcheon about her appearance when she was unwell due to illness, when her appearance was affected due to an allergic reaction, and when she wore too much make up and looked like Coco the Clown;

➣ embarrassed Ms McCutcheon by informing her that she looked good for her age, had a better figure and legs than herself in circumstances where Ms McCutcheon is much younger than Ms Lawrence;

➣ would advise female staff to wear revealing items of clothing, short skirts and low cut tops to achieve sales;

➣ made remarks that she couldn’t afford Ms McCutcheon’s wages if she did not hit her budget;

➣ had set unreasonable work expectations which included a daily run from seven calls to 12 calls a day and increasing administration requests regards to new business accounts;

➣ questioned the taking of sick leave;

➣ illegally requested Ms Lawrence’s medical records and illegally discussed the health of Ms McCutcheon with the Centre’s reception;

➣ required Ms McCutcheon to work on a public holiday in or about April 2017; and

➣ caused the workers’ compensation insurer not to pay Ms McCutcheon’s compensation claim.

Fine Wines

[78] Fine Wines denied that it or Ms Lawrence had engaged in bullying and said that the Application was vexatious and made in attempt by Ms McCutcheon to evade the consequences of her misconduct and her underperformance. In respect of Ms McCutcheon’s specific allegations, Fine Wines submitted that either:

➣ the alleged behaviour did not occur;

➣ the alleged behaviour was not unreasonable; or

➣ the alleged behaviour was reasonable management action.

[79] Further, Fine Wines advanced that in carrying out reasonable management action a degree of stress and humiliation was likely to be perceived by Ms McCutcheon.

[80] Ms Lawrence was said to have carried out reasonable management action in response to:

➣ Ms McCutcheon’s long-term underperformance; and

➣ recent misconduct involving Ms McCutcheon’s attempt to claim time off for an overseas trip to Kuala Lumpur as paid sick leave.

CONSIDERATION

[81] I now turn to the consideration of whether Ms McCutcheon has been bullied in the workplace by Fine Wines and the named person Ms Lawrence.

Performance issues

[82] It was apparent from Ms Lawrence’s evidence that Ms McCutcheon’s performance had declined over the course of 2017 and it was not explained by her assumption of the Key Account Manager position or that she worked on premise. I have of course considered that for periods Ms McCutcheon was absent from work for medical reasons.

[83] The evidence was such that Ms McCutcheon was placing an inadequate number of calls 140. It was a difficult exercise to ascertain from Ms McCutcheon the number of calls she was required to make and the number she actually made. She did herself no favours by her obfuscation and on this point I acknowledge the submission of Fine Wines that Ms McCutcheon was:

evasive and obfuscating in a number of her answers under cross examination. The Applicant demonstrated an unwillingness to make sensible and obvious concessions… 141

[84] It appeared that Ms McCutcheon was required to complete 8-10 calls a day, a number which Ms McCutcheon considered unreasonable due to her work on premise. Work on premise meant that Ms McCutcheon had more interaction with winemakers and services venues such as restaurants and bars, which she said took more time. However, Ms McCutcheon conceded during cross examination that she averaged seven calls a day 142. The evidence of Fine Wines was that Ms McCutcheon’s call rate had dropped to 3 to 4.3 calls to trade customers a day. There was no cogent evidence or reason put forward why this evidence should not be believed.

[85] Ms Lawrence gave evidence that Ms McCutcheon had not complied with requirements to complete the Journey Planner and demonstrated a lack of attention to detail and provision of adequate information in Opmetrix to allow the Sales Support Team to effect sales 143. Further, with regard to the planning of some events it was evident that Ms McCutcheon’s organisational skills were somewhat lacking or she otherwise had not communicated effectively with the Sales Support Team to ensure everyone knew their role with regard to the preparation for the event.

[86] According to Ms McCutcheon there was an expectation that she would submit a report of a winemaker’s event on the evening that it concluded. If there were such an expectation and it were enforced, then in my view that would be unreasonable. This is particularly so given the work required during the course of a winemaker’s event day, the completion time for the day and noting that there was no evidence to suggest that the report was sufficiently critical that a delay in its submission would impact on Fine Wines’ operations. However, no evidence was forthcoming to show that this expectation was in anyway enforced.

[87] With regard to her performance review in March 2017, Ms McCutcheon, of her own volition, sought to solicit references from the customers of Fine Wines absent authority to do so from Ms Lawrence 144. This type of behaviour is most odd, unprofessional and lacks insight. It inevitably places the customers of Fine Wines in the most awkward position of being put on the spot to produce a reference for Ms McCutcheon. While some may have been happy to do so, it was nevertheless an imposition. The position would clearly differ if a customer proffered feedback or Ms McCutcheon was supported in the endeavour by Fine Wines who endorsed the communication advanced to the customer.

[88] Ms Lawrence’s evidence was that Ms McCutcheon’s budget had only been increased by $10,000, an amount dissimilar to that of other Area Managers who saw their budgets increased by $400,000. Ms Lawrence gave evidence that Ms McCutcheon’s budget was not increased due to her inability to meet her budget in the past.

[89] There was dispute about the value of the sales Ms McCutcheon had delivered in the week of 20 November 2017, and while Ms McCutcheon’s sales had been down for a couple of days, Ms McCutcheon expressed that sales on a day prior had not been taken into consideration.

[90] Ms Lawrence had reviewed the sales records and noted that on 20 November 2017, Ms McCutcheon’s sales budget was $17,173.00 and actual sales were $1,552.00 145. Similarly, sales were down on the next day, and on 22 November 2017, Ms Lawrence noticed that Ms McCutcheon had not entered any calling cards on the system and only one order (from a phone in)146.

[91] Ms McCutcheon’s decline in sales over the course of 20 and 21 November 2017, triggered Ms Lawrence to enquire what she was doing to which Ms McCutcheon said she was dealing with a big corporate account that had fallen through, but refused to provide further detail 147. Ms Lawrence said that according to Opmetrix, Ms McCutcheon had no trade customers for that day148.

[92] Ms Lawrence’s enquires of Ms McCutcheon regarding her activities and location, and the feedback concerning her performance do not appear to be unreasonable. Concerning the aforementioned performance issues there is evident and intelligible justification such that Ms Lawrence’s actions would be considered by a reasonable person to be reasonable in all the circumstances.

Winemakers’ Event 27 June 2017

[93] I am satisfied that Ms McCutcheon was responsible for arranging a Winemakers’ Event on 27 June 2017 (Winemakers’ Event) 149 and that a discussion took place between Ms McCutcheon and Ms Lawrence about Ms McCutcheon’s failure to arrange wine, menu and to provide the owner of the restaurant confirmation of attendees. In and of itself I consider that the Winemakers’ Event provides further example of Ms McCutcheon’s underperformance. However, it is the conduct of Ms Lawrence that now falls into focus.

[94] I have considered the evidence of Ms Gianotti, Ms Susan Hutchinson customer at the event (Ms Hutchinson), Ms Lawrence and Ms McCutcheon. There were undoubtedly similarities concerning the evidence of all four, particularly with regard to the sequence of events. Further, Ms Lawrence, and Ms Gianotti reported to the effect that after the initial interaction with Ms Lawrence concerning buying flowers, Ms McCutcheon had not taken kindly to the remarks. I am satisfied that early in the piece Ms McCutcheon had become upset by the ‘flower’ remark, it having been said in front of others.

[95] With regard to the accounts provided, I am of the view that Ms Hutchinson’s perception of what occurred likely reflects the most accurate of accounts. Her evidence was absent embellishment and in effect she was a bystander having no apparent investment in the interaction that was occurring before her. While it is the case that Ms McCutcheon called Ms Hutchinson as a witness and may have established a positive customer relationship with her, I am not inclined to consider this impugned the evidence of Ms Hutchinson.

[96] Ms Hutchinson gave evidence that Ms Lawrence repeatedly said to Ms McCutcheon that she should give Emma flowers because she had brought the wine 150. Ms Hutchinson observed that at first Ms McCutcheon laughed off the comment but as Ms Lawrence persisted, Ms McCutcheon said ‘I don’t think I need to give any flowers’151. Ms Hutchinson observed that Ms Lawrence and Ms McCutcheon went to a separate area of the venue and spoke for approximately 5 minutes152. On their return Ms Hutchinson said that on their return Ms McCutcheon looked clearly upset and Ms Lawrence looked annoyed153.

[97] Ms Hutchinson added that not long after being seated at a table Ms Lawrence said to Ms McCutcheon ‘I’ve organised some starters because you probably haven’t done that’ 154. Ms Hutchinson felt that the exchange between the two was ‘very, very uncomfortable’155.

[98] In all the circumstances one can appreciate why Ms Lawrence was dissatisfied with Ms McCutcheon’s performance when it came to arranging the Winemakers’ Event. However, that dissatisfaction was manifested by untoward comments made not only in front of Ms McCutcheon but evident in a public setting. To indicate to others that Ms McCutcheon had not brought the wine and then to suggest in front of others, including Ms McCutcheon’s colleague, that Ms McCutcheon should buy the colleague flowers is an inappropriate approach to performance management. The content of what was said and the setting in which the words were uttered rendered the conduct as that which one would consider belittling and I am satisfied Ms Lawrence’s conduct was unreasonable.

Comments concerning Ms McCutcheon’s boyfriend

[99] Ms McCutcheon is of the view that Ms Lawrence had spread untrue malicious rumours about her Boyfriend. I accept the evidence of both Ms Lawrence and Ms McCutcheon that Ms Lawrence had said words to the effect that Ms McCutcheon’s boyfriend was going to break her heart, or may break her heart.

[100] Remarks, commentary, statement or response about the fidelity (or potential fidelity) of an employee’s partner is a subject matter that is not appropriate within a workplace. Such a remark may perhaps seem fitting and might otherwise be welcomed by the recipient in another context. However, in the workplace there is simply no place to jest that an employee’s partner may break his or her heart. Clearly, Ms Lawrence perceived that her lengthy friendship with the Boyfriend and her relationship with Ms McCutcheon was such that a level of familiarity was justified and it followed the comment was acceptable. It was not, particularly given that Ms Lawrence was Ms McCutcheon’s manager.

[101] However, given all the circumstances, particularly the relationship between Ms McCutcheon, Ms Lawrence and the Boyfriend, on balance I am not satisfied that the behaviour was unreasonable as that term is understood under s 789FD(1) of the Act.

Comments about Ms McCutcheon’s appearance

[102] Ms Lawrence’s evidence was that Ms McCutcheon presented exceptionally well and is very good looking 156. Ms Lawrence denied making untoward comments about Ms McCutcheon’s appearance albeit she said that in the past she had commented that with regard to makeup she preferred Ms McCutcheon’s natural look157.

[103] Ms McCutcheon submitted that she was embarrassed by Ms Lawrence informing her that she looked good for her age, had a better figure and legs than herself, in circumstances where Ms McCutcheon was much younger than Ms Lawrence. Reference was made to Ms McCutcheon looking like a Barbie doll and Coco the Clown although Ms Lawrence disputed making such remarks.

[104] It appears that there was a blurring of the line between employee and acquaintance/friend. This perhaps was evident when Ms McCutcheon visited Ms Lawrence during a time when Ms Lawrence was bereft and stayed for a period to socialise, drinking wine, and notably when Ms Lawrence passed comment about the Boyfriend. I am satisfied that both parties had fostered a level of familiarity between the two of them that may have exceeded that usually found in an employment relationship. This does not in any way excuse inappropriate comments made but does provide context for a comment such as a preference for a ‘natural look’ being considered by Ms Lawrence as a compliment.

[105] On the evidence before me I am not satisfied that the comments directed to Ms McCutcheon concerning her physicality were such that the behaviour of Ms Lawrence was unreasonable as understood under s 789FD(1) of the Act.

Unbutton a button

[106] Ms McCutcheon’s evidence was that Ms Lawrence had suggested that the female Area Managers wear revealing clothing to achieve sales 158. Ms Lawrence said that she could not recall even joking about unbuttoning buttons and considered it was banter amongst the sales and administrative team159. I am satisfied that Ms Lawrence made no such comment to Ms McCutcheon, and that once aware a comment such as that had been made in the context of the Sales Team responded promptly and appropriately.

A trip to Kuala Lumpur for dental work

[107] Fine Wines submitted that Ms Lawrence was said to have carried out reasonable management action in response, in part, to recent misconduct involving Ms McCutcheon’s attempt to claim leave for an overseas trip to Kuala Lumpur as paid personal leave.

[108] I have considered the evidence of Ms Lawrence, Ms McCutcheon, and Ms Gianotti, in addition to the two notes on the iPad and the evidence of Dr Mutahar, with regard to Ms McCutcheon’s trip to Kuala Lumpur.

[109] I am satisfied that in October 2017, Ms McCutcheon asked Ms Lawrence if she could take annual leave in late October to early November to have dental work done overseas and Ms Lawrence did not say no, but reminded Ms McCutcheon it was a busy time of year and to look at finding another way to have her dental work completed 160.

[110] Further, I am unconvinced that the note on the iPad titled ‘KL Leave (sick)’ was the product of a staff member of Fine Wines manipulating the system. It is apparent from the evidence, including that of Ms McCutcheon, that from on or around 16 October 2017, she was planning a trip to Kuala Lumpur to have a tooth treated in or around late October toward early November 2017 notwithstanding Ms Lawrence’s instruction to find another way to have her dental work completed.

[111] Ms McCutcheon gave evidence that she considered the time when she was absent from work due to another illness was an opportune time in which to have her tooth fixed 161. And, while Ms McCutcheon had asserted that Ms Lawrence had informed her that the end of October to the start of November was the best time for the business to get her tooth fixed, I am unconvinced that was the case.

[112] Ms Lawrence said that she expressed to Ms McCutcheon that she could take annual leave but that she was going to challenge the medical certificate as she was not comfortable with her going overseas on sick leave 162. Ms McCutcheon departed for Kuala Lumpur on or around 1 November 2017 and planned to return when the medical certificate expired163.

[113] I am satisfied that Ms Lawrence’s actions regarding her enquiring with Ms McCutcheon about her trip to Kuala Lumpur to have her tooth fixed were justified in all the circumstances. Ms McCutcheon said that in the meeting on 8 November 2017, Ms Lawrence directed toward her expressions of ‘disappointed’ 164 and ‘the way you left my business, you put the office under pressure. You caused angst’165. These were not in my view unreasonable.

[114] Highlighting to Ms McCutcheon that the information on her calling cards was insufficient for Fine Wines to undertake follow-up with customers in her absence, appears to be valuable feedback.

[115] Ms McCutcheon said that she felt verbally attacked, humiliated and felt that she was being spoken to like a child 166.

[116] In Amie Mac v Bank of Queensland Limited; Michelle Locke; Matthew Thompson; Stacey Hester; Christine Van Den Heuvel; Jane Newman 167 (BOQ) the Vice President observed at [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 Li 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. (Footnotes omitted)

[117] The Federal Court in Comcare v Martinez (No 2) 168 (Comcare), considered a question of law concerning the words ‘but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment’ in s 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth). Section 789FD(2) of the Act contains the words of exclusion, ‘to avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner’. While the decision does not elucidate the meaning of ‘behaves unreasonably’ or ‘reasonable management action carried out in a reasonable manner’ for the purpose of the Act, it nevertheless points to what I consider to be a salient observation and useful guidance. That observation is that ‘some degree of humiliation may often be a consequence of a manager exercising his or her legitimate authority at work’169.

[118] In BOQ 170 during a longueur in the hearing, there was an attempt to draw up a list of the features at least some of which one might expect to find in a course of repeated unreasonable behaviour that constituted bullying at work171. The list included the following: intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination172.

[119] ‘Behaviour’ that is said to have the feature of ‘humiliation’ by its very reference requires an act or conduct toward another that makes them feel humiliated. The behaviour does not become ‘unreasonable’ simply because the person purports that they felt humiliated. An objective assessment of the behaviour and a decision whether it is unreasonable is what is required 173. While there may be features which one might expect to find in a course of repeated unreasonable behaviour that constitute bullying at work, those features are simply that, they are features.

[120] Having considered the conduct of Ms McCutcheon regarding the trip to Kuala Lumpur for dental work and Ms Lawrence’s response to the same, I have concluded that Ms Lawrence was exercising her legitimate authority at work to make the enquiries she did and to express her disappointment in Ms McCutcheon’s conduct. While it may be the case that Ms McCutcheon felt that she had been verbally attacked and humiliated, I am of the view that she had simply been addressed with regard to her conduct and any feelings encountered may have been a consequence of Ms Lawrence’s exercise of her legitimate authority at work.

[121] Ms McCutcheon’s actions of sending an email later in the evening of 8 November 2017 174, painted a different picture to what she purported occurred earlier in the day in the meeting. It is difficult to reconcile the inconsistency between purported humiliation and endearing correspondence. On a review of the evidence there appears to be friendly and solicitous emails to Ms Lawrence on 8 November 2017 and on the following day175.  On 10 November 2017, Ms McCutcheon visited Ms Lawrence at home and brought with her flowers and a sympathy card176. Ms Lawrence said that Ms McCutcheon stayed for approximately an hour and had a glass of wine with her and her husband before hugging her goodbye on departure177. The friendly and solicitous emails, and the interaction on 10 November 2017, are inconsistent with the proposition that Ms McCutcheon had been verbally attacked and humiliated.

Harbourside Medical Centre

[122] Ms McCutcheon submitted that Ms Lawrence had illegally requested Ms Lawrence’s medical records and illegally discussed the health of Ms McCutcheon with the Centre’s reception.

[123] Ms Lawrence said that she made one phone call to the Centre (Centre) and asked to speak to Dr Mutahar, Ms McCutcheon’s primary care physician, who she was advised by reception was unavailable 178. Ms Lawrence said she asked to speak to the Practice Manager and was told that person was unavailable so Ms Lawrence asked if she could leave her number and have her call returned179. Ms McCutcheon disputed this and asserted that Ms Lawrence had made more than one phone call to the Centre180.

[124] On 23 October 2017, Ms McCutcheon sent the following text message to Ms Lawrence:

Tried calling you

My doctors admitting me to hospital

Iv took a flare up

Not well

You can call Dr Yusif Mindarie Harbourside Medical Centre 181

[125] Ms Lawrence responded on that same day at 5:13pm:

Hello Caroline

Please give a text with how u are?

We are worried about u.

If required we can collect your iPad and if u can divert your mobile to office

To relieve the stress/pressure of managing customer calls

Thanks Ronnie 182

[126] Having considered the evidence before me, I am satisfied that Ms Lawrence called the Centre on one occasion and spoke in a most discourteous manner to Ms McKenzie. While Ms McCutcheon had provided consent for Ms Lawrence to contact Dr Mutahar, I am of the view that the consent provided in the aforementioned text message did not extend to permitting Ms Lawrence to contact Dr Mutahar directly to challenge his assessment of her fitness for work or otherwise the validity of the medical certificate that Ms McCutcheon provided.

[127] While Ms Lawrence’s behaviour in this instance was misguided and intrusive, I am satisfied that her actions were not such that they fell under the remit of behaving unreasonably toward Ms McCutcheon.

[128] Ms Lawrence’s discourtesy was regrettably directed to Ms McKenzie. I am of the view that Ms McKenzie should not be subjected to such conduct as part of her work. But, this is to an aside. I appreciate that Ms Lawrence was understandably agitated. Notwithstanding her instruction to Ms McCutcheon that the proposed time to have her teeth fixed was unsuitable due to it being busy with the lead up to Christmas, Ms McCutcheon had persisted with the Kuala Lumpur trip. Ms McCutcheon had apparently thought it opportune to initially use a period of personal leave for teeth fixing notwithstanding that her state of being unfit was premised on another condition that had for all intents and purposes resolved.

[129] It is therefore understandable that Ms Lawrence placed Ms McCutcheon on notice that that she was going to challenge the medical certificate as she was not comfortable with her going overseas on sick leave 183. Ms Lawrence’s action was a reasonable management action executed in a reasonable manner, although the action was not ideal and was not the best or preferable course of action184.

[130] 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’ 185. In general terms this is likely to mean that management actions do not need to be perfect or ideal to be considered reasonable and a course of action may still be ‘reasonable action’ even if particular steps are not186.

Other issues

[131] Ms McCutcheon having lodged the workers’ compensation claim expressed that Ms Lawrence had caused the workers’ compensation insurer not to pay out her claim 187, and asserted that she had been informed this by Allianz. The submission that this constitutes, or is otherwise an example of being bullied at work, is absent merit based on the evidence before me.

[132] Ms McCutcheon advanced that the requirement for her to work on a public holiday in April 2017 provided yet another example of her being bullied in the workplace. However, the evidence was such that it did not eventuate that she worked on the public holiday, and she was not the only employee who was asked to work on that particular day 188. Therefore, I am unconvinced that such behaviour was unreasonable.

Conclusion

[133] Repeated unreasonable behaviour is 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 of repeated unreasonable behaviour, 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” 189. 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.

[134] In Re SB  190, the Commissioner 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.

[135] In BOQ 191 the Vice President stated:

…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.

[136] Having considered all of the evidence before me, I have arrived at a finding that on one occasion Ms Lawrence behaved unreasonably toward Ms McCutcheon, namely at the Winemakers’ Event on 27 June 2017.

[137] It is evident however that the Act contemplates the repetition of unreasonable behaviour, not just the one occurrence. The denouement is at this point Ms McCutcheon remains employed but has advanced she is currently off work because of the circumstances traversed in this decision. Clearly Ms McCutcheon’s current absence from the workplace minimises the risk to her health and safety. However, an order to stop bullying conduct addresses behaviour that may in the future take place within a workplace and there was no evidence before me to suggest Ms McCutcheon may or will not return to the workplace due to her state of fitness.

[138] Section 789FD(1)(b) requires me to have regard to Ms Lawrence’s behaviour and whether it creates a risk to Ms McCutcheon’s health and safety. However, while I was referred to what Ms McCutcheon considered were various examples of unreasonable behaviour by Ms Lawrence, I have concluded that they were not. It therefore follows I have determined that Ms Lawrence and Fine Wines, have not repeatedly behaved unreasonably toward Ms McCutcheon and having arrived at this conclusion, I do not consider it necessary to consider the second limb of s789FD(1). The Application is dismissed and an order 192 to that effect is published simultaneously with this decision.

[139] During the course of the proceedings Ms Goodhew gave evidence that with regard to Ms Lawrence providing feedback (to employees) that ‘unfortunately people take this negatively and misconstrue her behaviour’ 193. Ms Goodhew expanded on this and said ‘sometimes that's misconstrued as she is sort of trying to take over or - but then later when there's a meeting to discuss the account, it's positive and the rep then has more direction of how they need to move forward with an account’194.  While I have concluded on the evidence before me that Fine Wines and Ms Lawrence have not bullied Ms McCutcheon at work, this is not to say that an adjustment in Ms Lawrence’s management approach is not warranted if there is a perception held by some employees that ‘she is sort of trying to take over’.

DEPUTY PRESIDENT

Appearances:

Ms C McCutcheon, representing herself as the Applicant.

Ms E Lochan, on behalf of the Applicant.

Mr J Long, Panetta McGrath, on behalf of the Respondent and Person Named.

Ms J Edinger, Panetta McGrath, on behalf of the Respondent and Person Named.

Hearing details:

2018.

27, 28 & 29 March.

Perth.

Final written submissions:

Applicant: 6 April 2018.

Respondent: 9 April 2018.

Printed by authority of the Commonwealth Government Printer

<PR608520>

 1   Exhibit R1 Witness Statement of Veronica Helen Lawrence (Exhibit R1) [24] – [25].

 2   Ibid [26].

 3   Ibid [26] – [27].

 4   Ibid [28].

 5   Ibid [29].

 6   Ibid [30].

 7   Ibid [31].

 8   Ibid [45].

 9   Ibid [46].

 10   Ibid.

 11   Ibid [33].

 12   Ibid [35].

 13   Ibid [36].

 14   Ibid [61].

 15   Ibid [61]-[63].

 16   Ibid [38].

 17   Ibid.

 18   Ibid [40].

 19   Transcript PN1867-1868

 20   Exhibit R1.

 21   Ibid [55].

 22   Transcript PN1659.

 23   Ibid.

 24   Ibid PN1660.

 25   Ibid PN1663.

 26   Ibid.

 27   Exhibit R1 [103].

 28   Ibid [65].

 29   Ibid [66].

 30   Exhibit R4 Witness Statement of Ms Emma Gianotti (Exhibit R4) [36] Annexure ELG-02.

 31   Exhibit R1 [67].

 32   Exhibit R4 [37].

 33   Ibid [38].

 34   Exhibit R1 [70].

 35   Ibid.

 36   Ibid [71].

 37   Ibid [72]; Exhibit R4 [42].

 38   Exhibit R1 [73].

 39   Ibid.

 40   Ibid [74].

 41   Transcript PN1490.

 42   Ibid.

 43   Ibid PN1491.

 44   Ibid.

 45   Ibid.

 46   Ibid PN1492.

 47   Exhibit R1 [77].

 48   Ibid [78].

 49   Ibid [79].

 50   Ibid.

 51   Ibid [82].

 52   Ibid [84].

 53   Ibid.

 54   Exhibit R1 [86].

 55   Transcript PN2245.

 56   Exhibit R5 [6] – [7].

 57   Exhibit R1 [101].

 58   Ibid [106].

 59   Exhibit A10 p5.

 60   Ibid.

 61   Exhibit R1 [106].

 62   Ibid [108].

 63   Transcript PN1644.

 64   Ibid.

 65   Ibid.

 66   Exhibit R1 [112].

 67   Ibid [113].

 68   Ibid [114].

 69   Ibid [115].

 70   Ibid [116].

 71   Ibid [117]; Exhibit R4 [68]-[69].

 72   Ibid [120].

 73   Ibid [121].

 74   Ibid [122].

 75   Ibid [127].

 76   Ibid.

 77   Ibid [129]; Exhibit R4 [53].

 78   Exhibit R1 [131]; Exhibit R4 [53] Annexure ELG-04.

 79   Exhibit R1 [132]; Exhibit R4 [55] Annexures ELG-05 & ELG -06.

 80   Transcript PN2007.

 81   Ibid PN2008.

 82   Ibid PN2016.

 83   Ibid PN2059.

 84   Exhibit R1 [137].

 85   Ibid [138].

 86   Ibid.

 87   Ibid.

 88   Ibid PN2143.

 89   Ibid PN2144.

 90   Exhibit R1 [139].

 91   Transcript PN2234.

 92   Exhibit R1 [146].

 93   Ibid.

 94   Ibid [142]; Transcript PN367.

 95   Transcript PN369.

 96   Exhibit R1 [144].

 97   Ibid [145].

 98   Transcript PN521.

 99   Ibid PN526.

 100   Ibid PN2505-2506.

 101   Ibid PN832.

 102   Ibid PN2512.

 103   Ibid PN2536-2538.

 104   Ibid PN517-520.

 105   Ibid PN684-685.

 106   Ibid PN714-720.

 107   Ibid PN731-738.

 108   Exhibit R1 [151].

 109   Ibid [152].

 110   Ibid [155].

 111   Ibid [162] VHL-09.

 112   Transcript PN1679.

 113   Ibid.

 114   Ibid.

 115   Transcript PN1680.

 116   Exhibit R1 [166].

 117   Ibid.

 118   Ibid [169].

 119   Ibid [170].

 120   Transcript PN2249.

 121   Ibid PN2270.

 122   Exhibit R1 [172].

 123   Transcript PN2284.

 124   Ibid PN2301.

 125   Exhibit R1 [173].

 126   Ibid [174].

 127   Ibid [175].

 128   Ibid [176].

 129   Transcript PN2308.

 130   Ibid PN2311.

 131   Ibid PN1280.

 132   Ibid PN1280.

 133   Re Ms SB [2014] FWC 2104 [48].

 134   Ibid [51].

 135   Ibid [102].

 136   [2015] FWC 774 [102].

 137   Subsection 789FF(1)(b)(ii)) of the Act.

 138   Subsection 789FF(1) of the Act.

 139   Subsection 789FF(2) of the Act.

 140   Transcript PN1898.

 141   Respondent’s Closing Submissions [29].

 142   Transcript PN1874.

 143   Exhibit R1 [82]; Exhibit R1 [84].

 144   Exhibit R1 [103].

 145   Ibid [169].

 146   Ibid [170].

 147   Ibid [172].

 148   Ibid [173].

 149   Ibid [66].

 150   Transcript PN1490.

 151   Ibid.

 152   Ibid PN1491.

 153   Ibid.

 154   Ibid.

 155   Ibid PN1492.

 156   Exhibit R1 [112].

 157   Ibid [114].

 158   Ibid [115].

 159   Ibid [116].

 160   Ibid [120].

 161   Transcript PN2144.

 162   Exhibit R1 [139].

 163   Transcript PN2234.

 164   Ibid PN1679.

 165   Ibid.

 166   Ibid PN1680.

 167   [2015] FWC 774.

 168   [2013] FCA 439.

 169   Ibid [76].

 170   [2015] FWC 774 [99].

 171   Ibid [99].

 172   Ibid.

 173   Ibid [87].

 174   Exhibit R1 [162]; VHL-09.

 175   Ibid VHL-10.

 176   Ibid [166].

 177   Ibid.

 178   Ibid [142]; Transcript PN367.

 179   Exhibit R1 [144].

 180   Transcript PN369.

 181   Exhibit R1 VHL-06.

 182   Ibid.

 183   Ibid [139].

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

 185   Bropho v Human Rights & Equal Opportunity Commission (2004) 135 FCR 105 at [79].

 186   Ms SB [2014] FWC 2104 [51].

 187   Transcript PN2308.

 188   Ibid PN1968.

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

 190   [2014] FWC 2104 [51].

 191   [2015] FWC 774 [99].

 192   PR608521.

 193   Transcript PN1280.

 194   Ibid.