[2018] FWC 4147
FAIR WORK COMMISSION

DECISION


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

Application by Ms A
(AB2017/506)

DEPUTY PRESIDENT ASBURY

BRISBANE, 13 JULY 2018

Application for an FWC order to stop bullying.

[1] Ms A applies to the Fair Work Commission (the Commission) for an order to stop bullying pursuant to s. 789FC of the Fair Work Act 2009 (the Act). Ms A alleges bullying conduct against a person named in the application, which occurs in the workplace of B Pty Ltd, the corporate entity engaged to provide management services to a residential complex which is a community titles scheme (the Complex).

[2] For reasons which will be outlined in this decision the public version of this decision and the order made by the Commission do not identify the parties.

[3] Ms A is a Director of B Pty Ltd, together with her husband Mr D who is also a director. Ms A has named one person in her application, Mr C who is the Chairman of the Body Corporate Committee for the Complex. Ms A alleges multiple instances of conduct by Mr C that she asserts is bullying behaviour. The majority of the conduct complained of by Ms A involves Mr C sending what she describes as excessive emails sent continuously. Ms A further asserts that Mr C tries to blame the manager for a range of issues with the complex and interferes unreasonably in the letting business conducted by the manager.

[4] In her Form F72 Application, Ms A lists 11 allegations against Mr C, most of which occurred multiple times or are ongoing issues. Additional issues were also raised in Ms A’s written submissions and in her oral evidence at the hearing of her application. It is not in dispute that while carrying out the work associated with the manager’s role at the Complex, Ms A is at work in a constitutionally covered business for the purposes of s.789FD. Accordingly, emails to Ms A by Mr C as chairman of the Body Corporate Committee are directed to Ms A in her capacity as a Director of B Pty Ltd and Ms A is at work in a constitutionally covered business, regardless of the physical location at which she receives and reads the emails.

[5] Mr C objects to the application on the basis that he asserts that his conduct is reasonable management action taken in a reasonable way. Further, Mr C asserts that his actions are in response to Ms A failing to comply with her responsibilities under the management agreement that governs the provision of management services at the Complex.

[6] It appears that many of the issues which have generated the dispute arise from competing interpretations of the management agreement which governs the relationship between B Pty Ltd and the Body Corporate Committee for the Complex and of the role and responsibilities of the manager under the agreement. The matters in dispute were subject of an interim agreement but were ultimately not resolved at conciliation and the matter was listed for Hearing on 16 and 17 April 2018.

[7] Ms A filed a brief witness statement in relation to this matter, and relied on the information contained in her original Form F72 Application, as well as raising additional issues contained in amended sections of the original applicant. Ms A also filed a large volume of supporting material, largely consisting of copies of emails and photographs as evidence of the allegations of bullying conduct. 1 Mr C filed a response to Ms A’s application and also tendered a large volume of material including a somewhat unusual exhibit – three rocks in a plastic bag – which Mr C asserted the manager had failed to remove from the pool and which Mr C had removed himself.

[8] Many of the emails were relied on by the parties in respect of more than one allegation and multiple copies were tendered. A number of allegations were circular in nature and repetitive. I have considered all of the material filed but have not detailed all of the material in this Decision.

[9] The remedy sought by Ms A as set out in her application seeks the Commission monitor Mr C’s behaviour on an ongoing basis and that Mr C:

[10] Ms A gave evidence on her own behalf. Evidence in support of Ms A’s application was also given by Mr D. The evidence of Ms A and Mr D was given with the assistance of a Mandarin interpreter. Mr C also gave evidence on his own behalf. Both parties were self-represented.

[11] The legislative provisions dealing with applications for orders to stop bullying are contained in Part 6-4B of the Act. Section 789FC provides as follows:

“789FC Application for an FWC order to stop bullying

(1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.

(2) For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force.

Note: Broadly, for the purposes of the Work Health and Safety Act 2011, a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.

(3) The application must be accompanied by any fee prescribed by the regulations.

(4) The regulations may prescribe:

(a) a fee for making an application to the FWC under this section; and

(b) a method for indexing the fee; and

(c) the circumstances in which all or part of the fee may be waived or refunded.”

[12] Section 789FD of the FW Act defines when a worker is bullied at work as follows:

“789FD When is a worker bullied at work?

(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally-covered business:

(i) an individual; or

(ii) a group of individuals; repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.

(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:

(a) the person is:

(i) a constitutional corporation; or

(ii) the Commonwealth; or

(iii) a Commonwealth authority; or

(iv) a body corporate incorporated in a Territory; or

(b) the business or undertaking is conducted principally in a Territory or Commonwealth place; then the business or undertaking is a constitutionally-covered business.”

2. Evidence and submissions

The management agreement and performance of manager’s duties

[13] A number of documents were provided by both parties at a preliminary conference and at the hearing, reflecting the management agreement signed by Ms A when the entity B Pty Ltd was engaged as the building management services provider. Documents were also tendered that demonstrated variations made to the management agreement over several years before or after the management agreement was assigned to B Pty Ltd. 2 As previously noted, many of the allegations made by Ms A relate to Ms A’s assertions that Mr C is expecting the manager to undertake tasks or responsibilities that are not included in the management agreement.

[14] Conversely, Mr C asserts that the conduct that Ms A alleges is bullying is reasonable management action taken in a reasonable way on the basis that Mr C is requiring compliance with the management agreement on the part of Ms A. Mr C also asserts that the conduct Ms A complains of involves reasonable requests to the manager to undertake particular tasks that are within the scope of that agreement and are being unreasonably refused to be undertaken. Accordingly, it is necessary to consider the terms of the management agreement that are relevant to the issues in dispute between the parties.

[15] The documentation tendered by the parties establishes that the management agreement for the Complex was assigned to B Pty Ltd by deed executed on 13 June 2014. The deed also provided for Ms A and Mr D to purchase a lot within the scheme – the Manager’s lot. Clause 5 of the deed provides that B Pty Ltd as the assignee agrees to perform all of the caretaker’s and letting agent’s duties and obligations in the agreements as if the assignee was the original caretaker and letting agent. The management agreement under which the management services are to be performed dated 18 August 2017, was appended to Ms A’s application and tendered during the hearing.

[16] The agreement provides for reimbursement to the manager for the cost of all materials used for the performance of duties including cleaning materials and garden supplies which are to be used for the performance of duties for the Body Corporate only and not for individual lots. Reimbursement for the amount expended by the manager for telephone calls made on behalf of the body corporate is also provided for with a process for determining the reasonable quantum of such calls based on records to be kept by the manager, in the event that agreement is not reached in relation to this matter. Schedule One item 1 to the agreement provides for general duties and obligations on the part of the manager as follows:

[17] Of particular relevance to the present dispute is item 1(w) of Schedule 1 which provides (as varied by deed executed on 2 June 2014):

[18] Under cross-examination Ms A agreed that she did not reside on a full time basis at the property but maintained that Mr D did reside at the property and performed the management services in accordance with the agreement. In this regard the agreement provides for the manager’s duties to be carried out by a director where the manager is a corporation. Ms A said that she attends at the manager’s office at the complex, which is attached to the manager’s residence, for the purposes of performing office work and answering emails. Ms A said that she also undertakes some supervision of contractors. Ms A also looks after rental properties in the complex and attends body corporate meetings. Other work around the complex involving maintenance and cleaning is done by Mr D. 3

[19] Ms A also said that she carries the mobile telephone by which contact with the manager can be made. 4 Mr C contended that the mobile telephone is never answered at any time that he attempts to contact the manager and that it always goes to message bank.5 There is also a dispute between the parties in relation to the extent of the cleaning, gardening and maintenance duties required of the manager under the management agreement. Mr C tendered a deed varying the management agreement dated 31 May 2009, which indicated that the body corporate had resolved to increase the remuneration paid to the manager by $8,000.00 per annum and in consideration of that increase, the manager had agreed to perform additional cleaning, gardening and maintenance duties as set out in the deed. The variations included pruning trees, hedges and shrubs in all areas and disposing of branches and clippings as necessary. Mr C asserted that the amount of $8,000.00 had a present value of $15,000.00 when increases to the manager’s remuneration since that date were taken into account.

[20] Ms A agreed with the proposition that the only contact she had with Mr C was when she attended meetings of the body corporate committee he convened as chairman, or by email. 6 In response to a question from me regarding how Mr C was able to bully her in these circumstances, Ms A said that the bullying occurred before she moved out of the complex, and that Mr C continued to send her emails that she considered were unreasonable, and caused her to feel stressed.7 Ms A said that Mr C could send up to seven emails a day querying where she was, what work had work had been done and also threatening to reduce the manager’s remuneration or terminate the contract. Ms A said that this had caused her to move away from the Complex and had impacted on her family life because of the stress she felt and had led to her marriage to Mr D breaking down. Given the concession made by Ms A to the effect that the conduct of which she complains essentially involves emails sent to her by Mr C, I intend to focus on this issue.

[21] In relation to the 1999 variation to the management agreement, Ms A maintained that it did not include work that required specialist skills including trimming trees above standard height. Mr C maintained that the $8,000.00 increase, which had been indexed annually with increases to the manager’s remuneration, was intended to cover the engagement of any specialist contractors required to perform the trimming of trees above standard height.

[22] Both parties tendered a report prepared for the body corporate committee by Management Rights Advice and Service Consultants (the Management Rights Report). Mr C contended that no reliance should be placed on the Management Rights Report on the basis that the consultant who prepared it did not spend time with the members of the Committee before writing it. The Management Rights Report states that it evaluates that duties and responsibilities in the Caretaking Agreement to identify areas that may require attention prior to the sale of the management rights.

[23] The Management Rights Report notes that the pruning of trees, hedges and shrubs in all areas and disposal of clippings and the slashing, cleaning and planting of large banks and undeveloped areas are key areas of change from the original agreement. Among the critical assumptions in the Management Rights Report are that the manager may employ contractors to complete the duties prescribed in the management agreement. Actions identified in the Management Rights Report as being required include discussion between the manager and the committee in relation to the cutting back of several trees by professional contract and the trimming standard and responsibilities of all high hedges bearing in mind the necessary Health, Safety and Welfare Regulations governing working at heights.

[24] The Report concludes that: “The existing caretaking agreement is very generic in the instructions to the caretaker and offers all stakeholders little comfort for the ongoing management of the scheme.” The Report also observes that many of the areas designed as natural bushland are unsafe to traverse without the assistance of a harness and that the caretaker cannot complete clearing work on these slopes because of insurance limitations. Reservations are expressed about the extent of cutting back bushes and the need for this to be done by a specialist contractor and the safety issues associated with trimming hedges over 1.5 metres. The Report also identifies that some of the scope of works in relation to gardening is in excess of industry standard, and that the 1999 deed of variation in relation to these matters needs to be clarified. Further the Report states that generally work at heights requiring a ladder or a platform is not included in minor works under a caretaking/management agreement.

[25] The Report does not address the issue of whether the management agreement requires B Pty Ltd to pay for specialist contractors who may be required to perform the broader scope of works resulting from the 1999 variation. As previously noted, Ms A accepts that the management agreement was varied in 1999 but does not accept that it requires specialist contract work which cannot be performed by the manager to be paid for by B Pty Ltd. Mr C contends that the manager is required to pay for such works.

[26] Mr C states that the Management Services Report was prepared by an outside person who liaised with the managers and walked around with them. Mr C met the author of the Report for a few minutes only and did not get the chance to talk to him or other committee members and discuss all areas after the inspection was completed and before the Report was written. Mr C also points to the parts of the Report which are said to conflict with A’s views about “policing” and “enforcing” the by-laws. Further, Mr C points to the fact that the Report refers to the need for engagement of specialist contractors to perform some work under the management agreement. In this regard, Mr C points to the management agreement which states that:

[27] Mr C contends that the confusion about the terms of the management agreement should be addressed by the managers and the committee attending mediation to: “redo the whole agreement and salary package to make it clearer to everyone.” Mr C also states that the current situation is causing him stress and anxiety as he has been tasked by the Committee with liaising with the managers and has spent many sleepless nights trying to work out what to do to get the managers to do what they are supposed to do under the agreement.

Allegation 1

[28] The first allegation made by Ms A was that Mr C had said to her in a threatening manner, “I will give you a big boom” at the committee meeting of 14 February 2016. Ms A said that she was threatened and insulted by this language and reported the interaction to the strata manager, the body corporate committee and to the police. Ms A said she did not request that the Police record the call.

[29] Mr C denies having ever said “I will give you a big boom” and contended that there was no committee meeting held on 14 February 2016. In addition, Ms A did not raise the point during her cross examination of Mr C. There is insufficient evidence to support this allegation and I make no finding in relation to it.

Allegation 2

[30] This allegation concerned emails sent by Mr C to Ms A between 3 February 2016 and 12 September 2017 including complaints about the remuneration her company received from the Body Corporate for managing the complex in return for services Mr C perceives as inadequate. Ms A perceived the language in the emails to be insulting and abusive. Ms A relies on several emails from Mr C that she asserts make unreasonable requests, including tasks that are outside of the responsibilities contained in the management agreement. Mr C agreed that he had regularly raised the issue of remuneration in reference to tasks being incomplete or not completed with the required frequency, but disputed that his communications were insulting, abusive or rude. Mr C said at the hearing that when you read his emails to Ms A, he had said that if Ms A did not want to do the duties then they should negotiate and take money back. 8

[31] One of the email chains tendered by Ms A in relation to this allegation commences with an email from Mr C dated 3 February 2016 asking for a copy of an email sent to Ms A on 18 January 2016. It appears that the 18 January email was from a resident making a complaint about a loud telephone call on the evening of 17 January 2016. It appears that Ms A put the complaint into a spreadsheet distributed to the body corporate committee. The spreadsheet was not in evidence. Mr C states that the email was supposed to have been about him and that he wanted to be given a copy. Mr C further states that the appropriate thing for Ms A to have done would have been to raise the matter with him before circulating the complaint to the Committee.

[32] In the email exchange, Ms A tells Mr C that the email of complaint cannot be forwarded to him for privacy reasons and that: “it should not be a problem any more if only talk loud one time, so there is no action required.” Mr C states that this caused him distress as he believed that he had been found guilty of making the loud telephone call without being given an opportunity to respond to the allegation and that the matter had been made public by being placed before the body corporate committee. There are a series of emails where Mr C demands the email is provided to him and Ms A refuses but advises the date and time it was received. In an email of Monday 8 February sent at 8.05 am, Mr C requests an apology from Ms A and raises an additional issue stating that he hopes Mr D has mown the grass and cleaned up a certain area by the weekend.

[33] Ms A’s response to that email points out that Mr C’s request relates in part to an exclusive use area and that the manager is not responsible for mowing or cleaning such areas. There is then an exchange in which Mr C asserts that the requirement in the management agreement for mowing and aerating all lawns includes exclusive use areas and that Mr C knows that B Pty Ltd has been charging people for doing that and that he will complain to the Office of the Commissioner for Body Corporate and Community Management (BCCM) about this. Mr C further states that he just wants Ms A to do what she is paid for and supposed to do.

[34] In her response, Ms A again points out that the exclusive areas are not within the area of responsibility of the manager and that this had been agreed and finalised with a previous committee. Mr C’s response at 3.45 pm on Monday 8 February 2016 is: “I suggest you read your duties again and not take any notice of what previous committees illegally did.” When Ms A again asserts that responsibility for the exclusive use areas had changed many years before B Pty Ltd took over the management agreement and that these changes are legally binding, Mr C responds: “Well we should take back the money we are paying you to do it. It’s about $15,000.00 now.”

[35] In a further email dated Saturday February 13 2016 sent at 11.56 am, Mr C asserts that Mr D does not work ten hours a day at the complex and that he is never seen. In response to Ms A’s assertion that it is not the responsibility of the manager to clean or maintain exclusive use areas, Mr C states:

[36] Mr C concedes in his evidence to the Commission that the management agreement in relation to this issue is ambiguous and that he was in error asserting that the manager is responsible for lawn in the exclusive use areas. However Mr C maintains that any confusion on his part is understandable given the ambiguity in the management agreement.

Allegation 3

[37] Ms A alleges that since 2015, Mr C refused to pay certain maintenance fees and rejected claims for reimbursement of expenses related to managing The Complex Villas, such as petrol and telephone calls. Ms A understood the purported basis for this refusal was that Mr C asserted that the invoices were incomplete, however she claimed that she followed the same process as the previous managers had done for over a decade. Ms A has indicated that there are now expenses of around $600.00 for which she is yet to be reimbursed. 9

[38] Mr C believes the management agreement makes no provisions for Ms A’s company to claim these expenses. Mr C has also provided information about claims that have already been processed for items such as phone and internet charges, clothing, office equipment and delivery of notes that he believes should not have been paid to Ms A in the amounts claimed, if at all. Mr C said at the hearing that the expenses Ms A was seeking to claim were her own business’ expenses which would be dealt with in the end of year tax return filed by B Pty Ltd. 10 Further, Mr C disputes that his correspondence regarding the expenses Ms A was claiming was bullying, and said that when he commenced as treasurer of the body corporate he decided to look at what was being paid for, and put a stop to things he didn’t believe were legitimate.11

[39] Mr C said at the hearing that Ms A’s company was charging the Body Corporate for phone calls made by A and for the preparation, printing and delivery of notices, including notices addressed to the manager’s lot. 12 Mr C stated that he has not refused to pay the invoices but is currently collating the information to determine what expenses should be paid by the Body Corporate in relation to these outlays, in accordance with the management agreement.13

[40] As previously noted, the management agreement provides for reimbursement to the managers for materials used for the performance of the duties including fuels, cleaning materials and gardening supplies. There is also provision for reimbursement of telephone calls made by the manager on behalf of the body corporate, and a process where agreement is not reached involving the manager keeping records of the calls over a three month period.

[41] It is not clear from the evidence about whether agreement was reached in relation to an amount for telephone calls. The emails in relation to this allegation indicate that on 16 April 2016 at 7.20 pm, Ms A sent an email to the committee attaching an invoice for petrol and telephone calls and spreadsheets detailing what the expenditure was for. Mr C sent an email at 10.39 pm in response (with copies to each committee member) stating:

[42] There was also correspondence in relation to petrol where Mr C states that it is not right that the body corporate pay for petrol in circumstances where the manager is using the body corporate’s mower for its own purposes (to mow lawns in exclusive areas for which a fee was charged to the resident). Ms A states in response that the petrol is used for travel and that B Pty Ltd had purchased a mower and have not used body corporate tools. Mr C also stated in that email that he was offended that Ms A would ask for an amount of $32.23 for telephone calls when there was a budget of $10.00 per month and that he would be taking the invoices to the strata title management company for the complex.

[43] Ms A did not dispute that the body corporate’s mower had been used in the past for work in exclusive areas. In an email in relation to these matters dated 6 September 2016 and sent at 4.40 pm, Mr C again raised the issue of the $8,000.00 in the manager’s salary which he asserts is now around $15,000.00 and said there are a lot of questions around what it was given for. In an email responding to Ms A’s assertion that he wanted to remove the amount from the salary, Mr C states that he had never said that the body corporate should get rid of the amount but rather had wanted clarification on what exactly the body corporate was getting for the amount. Mr C added the comment that: “At the moment it is my opinion that it is very little.” (email sent at 9.06 am on 7 September 2016).

[44] The issue involving chicken wire is dealt with among other matters, in a series of emails commencing on 21 November 2016 when Mr C emailed Ms A at 6.25 pm asking where Mr D was that day and what he did. Ms A responded at 5.50 am on 22 November stating that Mr D was in the complex and did the general routine on that day. Mr C responded at 6.03 am on 22 November 2016 stating that Mr D did not do the general routine that day. A responded to that email asserting that Mr C had been giving them trouble for a year and that they wanted to make the complex better. Mr C’s response at 7.22 am on 22 November 2016 was that Mr D should remove some chicken wire; keep on trimming bushes; and clear leaves between the top and middle row of units.

[45] Ms A’s response at 9.05 am on 22 November 2016 is that the chicken wire removal is not the responsibility of the manager as it involves removing existing facilities. The leaves in the particular area are also asserted to be outside the responsibility of the manager but Ms A states that she will arrange a time to get it done since it is good for the whole complex. A further states that they will arrange a time for the trimming also. Mr C’s response at 9.40 am expresses that he is staggered by the reply and that the manager should do the jobs not required of a skilled tradesman as per the contract and at 9.45 am Mr C sent a further email asking what else the manager did other than suck up a few leaves, empty bins and do the pool. Ms A’s response is that the agreement does not require them to do anything that does not require a skilled tradesperson, only those things that are in the contract. Further Ms A states that the leaves and trimming will be done but the removal of the chicken wire is the same as cutting trees down to 1.5 metres and is not the manager’s responsibility. There are further emails in which Ms A maintains that the removal of the chicken wire is not in the agreement and Mr C maintains that the agreement requires in general duties and obligations that the manager will perform tasks that do not require the services of a skilled tradesperson.

[46] In her evidence to the Commission Ms A maintained that the chicken wire which Mr C sought to have removed was part of an expensive fence erected at the direction of the body corporate committee. Mr C maintained that Ms A misunderstood the direction and that he was asking for chicken wire to be laid on the ground in a particular area to prevent a bush turkey from making a nest in that area.

Allegation 4

[47] In her application, Ms A contends that Mr C has repeatedly questioned the duties in the management agreement, and made demands which were unreasonable. To support this allegation Ms A filed emails which she submits demonstrate that Mr C used abusive and aggressive language towards her when making these demands.

[48] Mr C believes that the requests he has made with regard to areas in the complex being kept clean and tidy have been reasonable and that any complaints he has made about these standards not being meet are appropriate.

[49] The emails produced by Ms A in relation to this matter are emails from Mr C requesting that Ms A and B Pty Ltd take steps in regards to the ongoing security of the complex, policing of bylaws, and the removal of chicken wire in part of the complex. The issues associated with chicken wire have been previously dealt with in relation to allegation three. In relation to these allegations Ms A also tendered emails in which she asserted Mr C made unreasonable demands in relation removal of leaves. In a series of emails in January 2017 Mr C asserts that Mr D has not been seen clearing leaves in the complex when this task is required to be performed daily and Ms A responds denying the allegation. In one email Ms A accuses Mr C of bullying, using threatening language and assigning meaningless tasks to the manager. In response Mr C states that with regard to Ms A’s assertion that the committee is not paying expenses for petrol and other costs, he is happy to ask the committee to reduce the caretaker’s salary if Ms A thinks it is within the power of the committee to change payments to her without the contract being changed.

[50] Ms A also produced emails commencing in December 2015 where she raised an issue of a boy trying to open mailboxes and bending mailbox doors. Ms A’s email suggests purchasing a fake camera as a security measure. Ms A’s initial email was sent at 1.35 pm on 8 December 2015. Mr C’s response at 8.34 pm on the same date raises a number of questions about whether Ms A or Mr D took steps to stop the boy opening the mail boxes and states that it is the role of the manager to check latches on mailboxes. Mr C also suggests that residents in rental properties managed by Ms A are provided with keys to mailboxes at cost to the owner. A responds by stating that the matter was reported by residents and that if the managers had seen the boy they would have taken steps to stop him opening the letter boxes. Ms A also states that it is a matter for owners whether or not they lock their letter boxes. Mr C’s response is to inform Ms A that as part of the security in the complex the managers should go around and warn residents who leave their letter boxes unlocked of the security risk, rather than simply emailing the committee informing them that reports of letterboxes being broken into have been received.

[51] There was also a significant debate between the parties about the meaning of the requirement to “police” bylaws found in the manager’s agreement and a considerable amount of email traffic on this point. Ms A’s evidence about this matter was confusing. In her oral evidence to the Commission, Ms A appeared to accept that if the manager saw breaches of bylaws such as children playing in a dangerous manner on the premises, cars parked in areas where they were not allowed, evidence of pets being kept without permission and the like, those matters would be raised directly with the persons engaging in the conduct.

[52] However in response to emails from Mr C requesting that Ms A ask people parked in no parking areas to move their cars, Ms A refuses asserting that it is the job of the manager to “enforce” the bylaws. In other emails Ms A advises that it is not the role of the manager to knock on doors to inform residents of pets causing a disturbance or to ask children to stop riding bicycles in areas where they cause danger to themselves or others or to request the parents of those children to stop them engaging in such activities.

[53] Mr C denies that he demanded enforcement of the bylaws, submitting that he has asked that the property managers “police” them in accordance with the management agreement. As part of the policing process, he requested that Ms A raise the issues in question with the person involved and report back to the committee with the response received. I also note that the Management Rights Advice Report filed by Ms A in support of her application, states that among the items requiring attention by the caretaker is the enforcement of bylaws in relation to tenants and owners moving waste items in a timely manner and that it is usual for management agreements to include a requirement for managers to police bylaws.

[54] Mr C denies that he has used threatening language, or intimidated or harassed Ms A. Mr C submits that asking Ms A to do what she gets paid to do does not amount to bullying conduct. Mr C asserts that Ms A does not want to adhere to the management agreement dated 31 May 1999, including items contained in schedule two that outlines cleaning, gardening and maintenance duties. 14

[55] Ms A considered an issue Mr C raised about the cleanliness of a toilet to be an example of an unreasonable expectation. Ms A states that the toilet in question was cleaned as per the usual schedule, and believes that Mr C held the unreasonable expectation that it would be clean at all times. Ms A tendered emails in relation to this issue commencing with an email sent by a person other than Mr C on 8 February 2018 at 12.38 pm. Mr C then sent an email at 6.15 pm agreeing that the toilet was dirty at the relevant time. The email exchange between Ms A and Mr C continued into the evening with the final email in the exchange being sent by Mr C at 11.28 pm and Ms A at 11.41 pm. Ms A also tendered other emails in which Mr C made comments to committee members to the effect that issues would not have occurred if the managers were doing their job.

[56] Mr C considers it not unreasonable to raise these issues outside of ordinary business hours, arguing that property managers’ duties and responsibilities cannot be confined to ordinary business hours. Mr C submits that according to Schedule 2 of the deed of engagement dated 27 April 2001, the managers daily duties were to clean and disinfect toilets and basins, and that this was an example of Ms A attempting to avoid her duties. 15

[57] By way of further example of unreasonable expectations in Mr C’s communications, Ms A raised two separate issues relating to water leaks at the complex requesting that plumbing works undergo an approval process of the entire committee, which Mr C believed to be unreasonable as it did not address the ability to respond to an emergency. Mr C’s concern was that in circumstances such as a sewer main bursting, the time taken to convene a meeting of the committee and/or contact all members for ratification of works would result in significant harm from both a financial and a health perspective. In response to this proposal by email dated 12 September 2017, Mr C states: “Don’t be so stupid [Ms A]. That sort of approval process for this site is crazy and you know it.”

Allegation 5

[58] Ms A alleges that Mr C demanded work that was outside of the management agreement, and sought to accuse the management company of breach of the agreement if they did not perform the work. These requests related to the cleaning and maintenance of exclusive use areas of the complex. Ms A also said Mr C had asked her clean an area behind his backyard that was his exclusive use area. 16 Ms A asserts that according to the management agreement, cleaning and maintenance duties are limited to the common areas of the complex.

[59] Mr C conceded that he had the expectation that the property managers would attend to all lawns including the exclusive use areas and that he had made requests in this regard, but submitted that he had ceased sending such requests in approximately February 2016 when he realised that it was indeed outside of the management agreement. However Mr C noted that the agreement had been amended to include all lawns and said that no reduction in salary had been made when Ms A refused to care for lawns in exclusive areas. Mr C also raised in response his complaint that the property managers had been using a lawnmower and petrol owned by the Body Corporate, to mow exclusive use areas of the complex and to charge the residents for the service. Mr C asserted that the management company also did not have a right to charge for working on gardens in the exclusive use areas, and said owners of the units had complained and had the fees refunded.

[60] Ms A responded to this allegation by noting that the Body Corporate loaned the lawnmower to unit owners, and that her company charged for the work performed outside of the management agreement. Ms A also said that B Pty Ltd has purchased its own lawnmower to address the situation but did not deny that at one point the lawn mower which was the property of the body corporate had been used as alleged by Mr C. Ms A also tendered an email sent by Mr C at 11.12 pm on Saturday 13 February 2018 in which he states that Ms A should not tell lies, and that he intends to get money back from B Pty Ltd.

Allegation 6

[61] Ms A referred to complaints from Mr C relating to the tidiness of the area in front of his door in her application. Mr C raised the issue via a number of emails to Ms A and maintains that the area is common property and should be cleaned daily, weather permitting, as per the management agreement. In cross examination, Mr C conceded that daily cleaning might not be necessary, but stated that his dissatisfaction with the current frequency of cleaning.

[62] Ms A disputes that the area is common property and is required to be cleaned under the agreement. She further considers Mr C’s complaints unreasonable, noting that he complained when there were very few leaves remaining in front of his door and the fact that the complex is located in a bushland area.

Allegation 7

[63] Ms A stated in her application that Mr C repeatedly emailed her regarding his expectation that the management company enforce by-laws of the Body Corporate by knocking on every resident’s door and speaking to them to prevent issues relating to the conduct of children on site. Ms A argued that for these types of situations, alternative resolutions should be sought through the local council.

[64] Mr C’s response was that he believes “any good managers” would go around to all the properties to ensure that people do not break bylaws, and that he only expected this and a report back to the Body Corporate. He raised an allegation that instead of this, the managers had a practice of charging the Body Corporate an amount of $0.50 per note to communicate issues to residents, which included charges for notes to their own unit.

[65] During the hearing, Ms A acknowledged that she would raise any contravention of the bylaws should she observe the relavent activity occurring, such as children riding skateboards in the complex or a person interfering with letterboxes. She confirmed that she had asked approached children riding bikes without helmets or making excessive noise directly. Ms A agreed that the management agreement required that she also make contact with the parents of the children and raise the issue with them.

[66] However, Ms A argued that the insertion of the clause requiring “policing” of the bylaws into the management agreement was an illegal delegation of the Body Corporate’s duties under the relevant legislation. She said she had received legal advice on this point from her solicitor. Further, Ms A noted that some of the body corporate committee members were parents of the children contravening the bylaws, so they would be aware of the issues and could enforce those bylaws directly. She also considered raising these issues directly with the children a safety issue for her, as in the past her door had been hit with a bat by the child of a committee member. If she were required to police compliance with the bylaws, Ms A submitted that this could be done effectively by making phone calls and sending emails to the residents.

Allegation 8

[67] Ms A alleged that Mr C was inappropriately involving himself in rental issues such as smoke alarm monitoring, refunds of bond payments, and disputes between the tenants and the property managers.

[68] Mr C responded that he had three tenants come to him with issues that they had with the property managers, and that he considered that as the chairman of the body corporate committee, he is obliged to provide assistance when requested. Mr C said that an issue raised twice was the property managers’ requirement of additional rent on top of the bond amount, and two weeks’ rent paid in advance of moving in. Mr C also said that he told the relevant tenants that he would check this with the Residential Tenancies Authority (RTA) and that the RTA advised that these requirements were illegal and the letting agents could be fined. Mr C said he reported this information back to the tenants and that he did not make any accusations against the managers.

[69] Mr C also described situations where new tenants had complained to him that their units were dirty when they moved in and said that he considered that the Body Corporate should be doing everything that they can to elevate the standard of cleanliness at the complex in order to attract better tenants. He also referenced a situation where a mattress had been left behind by a tenant, for which he approved the removal cost of $30.00. He also said that the property managers did not act upon his approval and he considered that they should have supervised the tenants while they were moving out, as per the management agreement, so that items were not left behind.

[70] A further example raised by Ms A of Mr C’s involvement in tenancy issues concerned repair to a steel plate in the driveway of a particular unit. Mr C had advised the tenants that it should be dealt with by the Body Corporate, however Ms A felt that this was incorrect and undermined her advice to the tenants that any repair to the steel plate was to be at their expense, based upon her understanding that they had removed a screw in the steel plate to facilitate a smoother path into the driveway for their vehicle.

[71] During her cross examination, Ms A extracted a concession from Mr C that he had emailed tenants regarding some of these issues, however Mr C maintained that he had only retrieved and forwarded information from the RTA to the tenants, saying he had advised the tenants to contact the RTA directly. Ms A argued that Mr C was advising tenants in an inappropriate way and should not have been involving himself in tenancy matters. She submitted that Mr C was siding with the tenants in disputes and assisting them to go to the RTA.

Allegation 9

[72] In addition to Ms A’s allegations relating to Mr C’s unreasonable expectations for work to be completed that is outside the parameters of the management agreement, Ms A described Mr C’s requests for the property managers to organise and pay for skilled tradespeople to complete tree maintenance and plumbing works. Ms A took exception to this, disputing that the caretaking arrangement required the management company to pay for these services themselves. She argued that while the management agreement does not distinguish between small and large trees, she considered that the scope of the agreement only extended to maintenance of small trees. Ms A considered that a tree over two metres in height would require a skilled tradesperson to attend to pruning and other duties, and that completing this work would present occupational health and safety and insurance issues.

[73] Mr C considered that tree maintenance was provided for in the agreement, and was part of the property managers’ duties, regardless of whether they outsourced the work. He pointed out that additional funds paid to the current and former property managers as a result of the variation to the management agreement in 1999 were allocated specifically for this purpose, including where external tradespeople were required, and that was the reason for the lack of distinction in the agreement in relation to the height of trees to be trimmed.

Allegation 10

[74] Ms A stated that since April 2017, Mr C impeded upon the exclusive use of a storeroom by the property managers when he used it to store wheel stoppers prior to their installation. Ms A contacted Mr C to remind him that it was not for use by the Body Corporate, and an email exchange followed which also touched on storage of other Body Corporate equipment. Ms A states that she took exception to the manner in which the issue was raised, which she felt to be a direction from Mr C to store the wheel stoppers in her exclusive use area.

[75] Mr C submitted that he was under the impression that the purpose of the storeroom was to store Body Corporate equipment, and that he had advised Mr D that the wheel stoppers were to be stored there. Mr D disputed this account in his evidence. Mr C further stated that he did not personally place the wheel stoppers in the exclusive use area and was advised a week after the fact that someone else had stored them in the storeroom. Mr C submitted during the hearing that he had organised for all of the Body Corporate equipment to be removed from the storeroom and placed in the pool area by 20 April 2018, in response to Ms A’s concerns about infringement on her exclusive use area.

Allegation 11

[76] Ms A’s application stated that she has run into difficulties when organising repairs and maintenance around the complex, and that when owners raise similar issues they do not face the same difficulties she does. Ms A that Mr C responds to her in an aggressive and abusive manner when she raises these requests. Her allegation in this instance related to damage to the pool area, deck replacement and repairs, and a plumbing request.

[77] Mr C denies that he has been purposefully creating obstacles for Ms A, stating that he has made reasonable requests for further information from Ms A about the work orders she is raising in order to ascertain the scope and urgency of the requested repairs. He cites the plumbing work that was carried out in allegation 9 that he believes did not require the attendance of a professional plumbing company.

[78] With regard to the issue of the deck replacements and repairs, Mr C highlighted what he believes to be a misunderstanding on the part of Ms A about the information he sent through regarding this. The emails tendered by Ms A evidence that Mr C is attempting to correct a misunderstanding on her part. However they are replete with gratuitous comments about Ms A’s inability to understand what Mr C is saying in the emails.

Other relevant issues

[79] Mr C gave evidence about a pool gate in support of his contentions that his concerns about Ms A and her ability to manage the complex were reasonable. The series of events according to the evidence of Mr C was that at 1.12 pm on Saturday 17 March 2018, a committee member reported that a hinge on the pool gate at the complex was broken and that the gate was not secure. The committee member advised that her husband would purchase some hinges and repair the gate. At 7.06am on Sunday 18 March 2018 Mr C saw Mr D walking to the gate with some tools. At 8.11am on 18 March 2018 Mr C observed that the pool gate had been completely removed and nothing put in its place.

[80] At some point the strata title manager for the complex became involved. Ms A advised that Mr D had removed the pool gate and stored it in the swimming pool unit. In a later email Ms A advised that a sign stating that the pool was closed was placed on the gate. A committee member emailed Ms A accusing her and Mr D of total negligence on the basis that a child could have walked into the open enclosure and not been able to read the sign. Mr C disputed that a sign had been erected in any event. The strata manager for the complex corresponded with Ms A informing her that the gate should not have been removed and that the pool should have been locked off by zip ties being applied to the gate and that the body corporate would have been liable if a child had drowned in the pool. The email goes on to point out that as the building manager Ms A should be aware of her responsibilities and that as the contract requires the building manager to live on site, this issue should have immediately been dealt with.

[81] Ms A responded to the email, copying the members of the body corporate committee into her response, as follows:

[82] In response to an email stating that the direction about the pool gate was not unreasonable, Ms A continued to debate the point maintaining that appropriate steps had been taken by removing the gate because it was broken in any event and expressing surprise at the views expressed in earlier emails from committee members and the strata manager.

[83] Mr C submits that Ms A’s response to this issue is unacceptable and is indicative of her propensity to refuse to accept responsibility for her conduct. Mr C further submits that Ms A’s response demonstrates the manner in which she is deflecting blame for her incompetence by accusing persons who raise legitimate issues of bullying.

3. Consideration

[84] After considering the evidence I am satisfied that Ms A’s performance as a manager or a director of the entity providing management services to The Complex leaves much to be desired. It is apparent that Ms A does not reside at the premises. The management agreement provides that a director of the property manager may perform the role, and Ms A states that the manager’s role is being performed by Mr D. However, Ms A concedes that the mobile telephone number provided for the purposes of contact in accordance with the management agreement is the number for a telephone in her possession. Ms A also maintains that she contacts Mr D if necessary and directs him to attend to any issues at the complex. Clearly Ms A has determined that Mr D will provide the management services but has remained as the principal contact for the body corporate and residents including by keeping control over the telephone by which they may make contact with the building manager.

[85] This arrangement is inconsistent with the intent of the management agreement which requires that the manager be on the site or be contactable by mobile telephone between the required hours. It also clear from the evidence that Ms A has a tendency to query most requests directed to her and to draw artificial distinctions – for example the insistence that the manager is not required to “enforce” by laws when the management agreement provides for them to be “policed”. The Report tendered by Ms A indicates that there is nothing out of the ordinary about a management agreement making such a provision. Further, Ms A accepted in her oral evidence that it is the role of the manager to approach persons seen to be breaching by-laws and at very least, point out the breach. The emails stating Ms A’s refusal to undertake such tasks are at odds with her evidence, and appear to be contrary to the manager’s obligations under the agreement. Further, if Ms A believes that the requirement to police by laws is illegal, she should seek to have that matter dealt with by the relevant authority or tribunal.

[86] The refusal to deal with chicken wire is another example. On the evidence of Mr C, this was not a task that requires specialist trade skills and one which should have been performed by the manager. The task involved placing chicken wire on the ground to prevent bush turkeys from making a nest. In this context the request made by Mr C about the chicken wire is not unreasonable. It is also probable that the issues with the pool – such as the presence of rocks in the water and the lack of cleanliness of the pool toilets – are the result of a failure to undertake a daily inspection.

[87] Ms A’s irrational and unreasonable response to the incident involving the removal of the pool gate is another case in point. The removal of the pool gate undertaken by Mr D was inexcusable and inconsistent with his duty of care as the manager of The Complex designated by B Pty Ltd. The conduct of Mr D created a real risk of drowning if a child had wandered into the pool area in circumstances where it is known that children reside at the complex. Instead of accepting the correct advice and instruction of the strata title manager about the matter, Ms A accused that manager of “unreasonable blaming and unrealistic expectation.” That response is inconsistent with Ms A’s role as a director of B Pty Ltd and her obligation to ensure that services as required by the management agreement are provided to the residents of the complex.

[88] In my view, there are very few issues raised in the emails and other communication from Mr C, in his capacity as chairman of the body corporate committee, which are not reasonable matters to be raised with Ms A in her capacity as a director of B Pty Ltd. One exception is Mr C’s requests for mowing or other work on exclusive use areas. However, Mr C conceded that his view in this regard was incorrect and that he had ceased to insist on this work being done. Mr C’s view that the management agreement covered all mowing is understandable given that it is ambiguous as confirmed in the Management Services Report filed by Ms A. There is no evidence that Mr C has continued with his insistence on the exclusive use areas being mowed at the cost of the manager, and I am not satisfied that this behaviour will continue. Other exceptions are dealt with later in this decision.

[89] I have had regard to the fact that English is not Ms A’s first language and that some of the issues between Ms A and Mr C may be a case of information being lost in translation. I have also had regard to the fact that Mr C has grievances with Ms A which have some valid basis. While Mr C has sent a large number of emails to Ms A, she has not hesitated to respond and has sent an equally large number of emails to Mr C. In short, Ms A is not entirely blameless in the situation which currently exists with respect to her relationship with Mr C. However, after weighing all of the evidence, I am satisfied that while the majority of issues raised by Mr C are reasonable, the manner in which he has raised them, and the frequency of his complaints, is not reasonable. I am also satisfied that some of the issues raised by Mr C are not reasonable.

[90] Mr C has engaged in a practice of sending emails to Ms A at times which are significantly outside the core hours during which the manager is required to be contactable. While I accept that the manager should be contactable at any time in the case of an emergency, none of the issues in these emails are of an emergent nature. Mr C has also used sarcastic and derogatory language in his emails to Ms A and has published those comments to other body corporate committee members. In this regard Mr C has sent emails referring to Ms A as a liar and has made comments about her credibility, her ability to perform the work under the contract and her command of English. This conduct is unreasonable, is repeated and I accept Ms A’s evidence that it is creating a risk to health and safety by affecting her personal wellbeing. I am also satisfied that there is a risk that this behaviour will continue.

[91] It is also the case that Mr C has engaged in debate about the remuneration payable under the management agreement. Mr C acknowledges that the management agreement is ambiguous and that there should be mediation between the parties to resolve these matters. I agree with Mr C on those points. I also agree that it is arguable that the remuneration under the agreement includes an amount in recognition of a broader range of tasks being undertaken by the manager or through the manager engaging and paying for contractors to undertake some specialised work and in particular the pruning of trees at heights that require special equipment. It is also the case that the management agreement requires the manager to police by laws and that Ms A takes issue with this requirement and the manner in which it can be met.

[92] However, there are appropriate mechanisms and processes to resolve such disputes than a war engaged in by email. Mr C as chairman of the body corporate committee has access to a strata management company and to other sources of information about how such disputes should be resolved. It is not reasonable for Mr C to continue to send emails to Ms A raising issues about why remuneration under the agreement is set at a particular level; what the remuneration covers; and whether it should be reduced. Such emails will not resolve the underlying issue and they are causing distress to Ms A. They are not an appropriate mechanism to deal with this issue. Mr C’s raising of this issue in emails to A is unreasonable behaviour which is repeated and is creating a risk to health and safety by affecting Ms A’s personal wellbeing. I am also satisfied that there is a risk that this behaviour will continue. I have the same view in relation to the debate about “policing” by laws.

[93] I do not accept that it is inappropriate for Mr C to receive and respond to complaints made by persons renting properties that are managed by Ms A. Mr C is the chairman of the body corporate committee and any resident regardless of whether they are an owner or a tenant, is entitled to seek Mr C’s assistance in that capacity. That Mr C seeks advice from appropriate authorities on behalf of persons who approach him in this capacity is not unreasonable and does not constitute bullying.

4. Conclusions

[94] As required by s. 789FF I am satisfied that Ms A is a worker and that notwithstanding that she is not blameless in the situation in which she finds herself, Ms A reasonably believes that she has been bullied at work. Ms A has been bullied by emails sent to her by Mr C. The bullying conduct involves Mr C sending emails to Ms A about matters which are not urgent at times which are not reasonable. The bullying conduct also involves the inclusion in the emails of sarcastic and derogatory language in relation to Ms A and is exacerbated by the fact that the emails are disseminated to other members of the committee of management of the body corporate. Notwithstanding that most of the emails deal with issues which it is reasonable for Mr C to raise in his capacity as chairman of the body corporate committee for the Complex, the manner in which Mr C articulates those issues, and the frequency of his emails is not reasonable.

[95] The bullying conduct also involves Mr C in appropriately using emails to articulate his concerns about the remuneration payable to B Pty Ltd under the management agreement. I am satisfied that notwithstanding that these are reasonable issues for Mr C to raise in his capacity as chairman of the body corporate committee for the complex, the manner in which those issues are raised is not reasonable, and email communication is not an appropriate mechanism to resolve the dispute about this issue.

[96] Ms A states that the conduct has and continues to have a significant impact on her personal wellbeing and has contributed to the breakdown of her marriage. I am satisfied that the conduct constitutes a risk to Ms A’s health and safety. I am also satisfied that there is a risk that the conduct which I have found to be bullying will continue. Accordingly, I am satisfied that I should make an order to prevent Ms A from being bullied at work.

[97] The order I intend to make will deal with the timing, subject matter and content of any future emails Mr C sends to Ms A. The orders will also require Mr C to attempt to contact the manager by telephone before sending an email in relation to a particular issue. In order to facilitate telephone contact between Mr C and the person designated to perform manager’s duties, the order will also require that Ms A, as a director of B Pty Ltd, ensure that Mr D who is also a director and who is providing the management services on behalf of B Pty Ltd, has a mobile telephone upon which he can be contacted by members of the body corporate committee and residents of the complex in accordance with the management agreement.

[98] I do not accept that it is appropriate to place any further limitations on Mr C’s ability to perform his role as Chairman of the body corporate committee, and the restrictions sought by Ms A are not necessary to address the conduct of which she complains.

[99] I have issued the orders and this decision without identifying the parties involved. I have done so on the basis that it will be more conducive to the resumption and continuation of on-going safe and productive working relationship between Ms A and Mr C. I am also satisfied that the identification of the parties would also result in the identification of the complex, which may impact other residents. In this regard Ms A and Mr C should note that conflict of the kind dealt with in this decision could adversely affect their own interests and those of others in terms of the values of properties in the complex. The complete version of the orders has been provided to each of the relevant parties.

[100] The orders will issue with this decision.

DEPUTY PRESIDENT

Appearances:

Ms A on her own behalf.

Mr C on his own behalf.

Hearing details:

2018.

16 & 17 April.

Brisbane.

Printed by authority of the Commonwealth Government Printer

<PR608977>

 1   Exhibit 2 Applicant’s bundle of documents

 2   Exhibit 1 Management Agreement Documents

 3   Transcript 16 April 2018 at PN147 - 150

 4   Transcript 16 April 2018 at PN427.

 5   Transcript 16 April 2018 at PN442.

 6   Ibid at PN151

 7   Ibid at PN152 – 158.

 8   Ibid at PN901

 9   Exhibit 2 Applicant’s bundle of documents

 10   Transcript 16 April 2018 PN569

 11   Ibid at PN567-568

 12   Ibid at PN578

 13   Ibid at PN574

 14   Replies to Material 03 Evidence 01 of Applicant filed on 27 March 2018

 15   Replies to Material 06 Evidence 04 of Applicant filed on 27 March 2018.

 16   Ibid at PN165