DECISION

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

Paula Taylor
(AB2018/558)

Application for an FWC order to stop bullying – worker employed in family business - matrimonial dispute between business owners – no single employer position - bullying conduct established – orders necessary to prevent future bullying – orders made and published

[1] On 10 September 2018 Paula Taylor (Mrs Taylor, formerly Paula Garrard-Talbot) made an application (AB2018/558) to the Fair Work Commission (Commission) under section 789FC of the Fair Work Act 2009 (FW Act) seeking an order to stop bullying 1. The application identified two respondents: Mrs Taylor’s employer Hoad Water Cartage Pty Ltd (Hoad Water Cartage or the employer) and a person named Mr (William) Mark Hoad (Mr Hoad). The application specified Charmaine Joy Hoad (Mrs Hoad) as a contact person for the employer.

[2] Mrs Taylor was and remains employed by Hoad Water Cartage Pty Ltd on a part time basis as Finance and Administration Manager and Human Resources Manager.

[3] Hoad Water Cartage is a private family company jointly owned by husband and wife William Mark Hoad and Charmaine Joy Hoad. Hoad Water Cartage is in the business of carting water in and around South Australia. It commenced operations in approximately 1988. The business is conducted from a matrimonial property at Carey Gully in the Adelaide Hills. On that property is a homestead and, separately portable offices, trucks, related business equipment and personal assets. In 2015 Hoad Water Cartage purchased Andy’s Water Transport. Thereafter Hoad Water Cartage operated its business from Carey Gully under dual trading names: Hoad Water Cartage and Andy’s Water. A separate small manufacturing business Optiblue Pty Ltd (Optiblue) is also operated by Mr and Mrs Hoad but owned by Mr Hoad.

[4] Mrs Taylor’s application was filed and dealt with by the Commission in the shadow of an acrimonious matrimonial dispute between Mr and Mrs Hoad which remains before the Federal Circuit Court of Australia (the Court).

[5] The application was also dealt with in the context of an application filed two weeks earlier (31 August 2018) by Charmaine Joy Hoad in which Mrs Hoad sought anti-bullying orders against William Mark Hoad (Mrs Hoad’s application) 2. A decision in that matter is reserved.

[6] I issued directions on Mrs Taylor’s application on 27 September 2018, 1 November 2018, 15 November 2018, 28 November 2018, 3 December 2018 and 25 January 2019.

[7] I directed 3 that this application and Mrs Hoad’s application be conciliated concurrently. I conducted conferences on the applications on 5 October and 31 October 2018. On my recommendation (agreed to by Mrs Taylor, Mr Hoad and Mrs Hoad) Commissioner Platt conducted member assisted conciliation and mediation on 23 November 2018, 27 November 2018 and 19 December 2018.

[8] Notwithstanding these processes, Mrs Taylor’s application did not resolve 4. Mrs Taylor then indicated an intention to proceed to arbitration. I directed5 that her application be determined separately from Mrs Hoad’s.

[9] Mrs Taylor, Mr Hoad and Mrs Hoad each filed written materials in advance of the hearing.

[10] Two different responses were filed each purportedly on behalf of the employer. A response dated 12 September 2018 was filed by Mrs Hoad. A response dated 20 September 2018 was filed by Mr Hoad. Mrs Hoad’s response asserted that bullying of Mrs Taylor has occurred and is continuing, and supported orders being made against Mr Hoad. The response filed by Mr Hoad denied that bullying occurred or is continuing and sought dismissal of the application.

[11] Mrs Taylor’s application was heard in court on 18 and 21 February 2019 6. At Mr Hoad’s request, I took steps in advance of the hearing to ensure appropriate security within the court precinct. No jurisdictional issues arose. Mrs Taylor, Mr Hoad and Mrs Hoad appeared. Each was self-represented. Each gave evidence.

[12] Mrs Taylor gave her evidence professionally, carefully and largely without gloss or emotion. Her recall was generally undisturbed by the anxiety she was clearly under or the acrimonious circumstances between Mr and Mrs Hoad. She made significant effort to recall precisely and to not overstate her case. I consider her a reliable witness.

[13] Mr Hoad gave evidence. Whilst he endeavoured to be of assistance to the Commission in recalling events, his evidence was verbose and at times selective. It carried a certain bravado. Whilst his evidence is not wholly unreliable I treat it with caution.

[14] Mrs Hoad gave evidence with reasonable clarity though her antipathy towards Mr Hoad was readily apparent. I exercise a certain degree of caution in considering whether an unfavourable gloss was imposed on matters pertaining to Mr Hoad’s conduct.

[15] Some of the evidence before me strayed from factual matters into hearsay, opinion, assumption and commentary. In a bullying matter such as this, that is not surprising. I place reduced levels of weight on such evidence except where corroborated by direct evidence, is uncontested or inherently plausible. I am not bound by the rules of evidence but consider them to be a good and useful general guide. I adopt the approach of a Full Bench of this Commission which has said:

“The Commission is obliged by statute to perform its functions in a manner that is fair and just pursuant to s. 577(a) of the Act. Although it is not bound by the rules of evidence and procedure, the Commission tends to follow the rules of evidence as a general guide to good procedure. However, that which is ultimately required is judicial fairness, and that which is fair in a given situation depends on the circumstances.” 7

Position of the employer

[16] An issue arose concerning the position of the employer, and Mrs Hoad’s appearance. Mr Hoad objected to Mrs Hoad participating in proceedings on the ground that he was the Managing Director of Hoad Water Cartage and that he and only he had authority to speak on behalf of the employer in the matter. He contended that Mrs Hoad was a ‘rogue director’ 8. Mrs Hoad said that she was at all relevant times and remained a director of the employing entity and was also its Director of Finance. I granted permission for Mrs Hoad to participate in proceedings on the basis that she had a relevant interest in proceedings as a director of Hoad Water Cartage irrespective of whether she or Mr Hoad could speak on behalf of the employer9. Further, Mrs Hoad had relevant evidence concerning her interactions with Mrs Taylor in the workplace.

[17] On 25 January 2019 I directed that:

“[16] The FAIR WORK COMMISSION DIRECTS that if Mark Hoad or Charmaine Hoad purport to file materials on behalf of the employer Hoad Water Cartage Pty Ltd trading as Hoad Water Cartage or Andy’s Water Transport (the employer) they be directed to indicate the basis on which that person purports to have the authority to speak on the application on behalf of the employer.”

[18] Having regard to the evidence and submissions, in the unusual circumstances of this matter, I conclude that neither Mr Hoad nor Mrs Hoad is in a position to claim authority to speak on behalf of the employer. The two sole directors present opposing positions on the application. Whilst a managing director of a company would ordinarily carry authority to speak on behalf of the company as an employer, these are not ordinary circumstances. Mr Hoad is subject to a Court Order under which Mrs Hoad undertakes a role that includes “human resources” 10. That same Court Order restrains and injuncts Mr Hoad from “providing any instruction or direction on any matter relating to the duties or terms of employment” of Paula Taylor “save those then exercised”11. Nor can Mrs Hoad rely on either her directorship or her “human resources” role to assert the authority of the employer. Whilst a senior officer or owner of a small business with authority to deal with human resources would generally carry authority to speak on behalf of the employer on workplace matters, this would also ordinarily be subject to the say-so of the managing director.

[19] The employer’s position is a stalemate between its two directors and unable to expressed with one voice. Being unable to discern a coherent employer’s position, I give it no weight. I do not however disregard the material filed in its name. I receive the material filed by Mr Hoad in his ‘employer response’ and his evidence and submissions as relevant to his capacity as both a director, as ‘Managing Director’ (and ‘Operations Manager’) and as a person named. I receive the material filed by Mrs Hoad in her ‘employer response’ and her evidence and submissions as relevant to her capacity as both a director and as the ‘Director of Finance’ which includes a human resources role. Each has given evidence that this material on which they rely is true and correct to the best of their knowledge and belief. Together with Mrs Taylor’s evidence, that body of material from persons who have established an interest in these proceedings is sufficient to deal with the application.

The Facts

[20] I make the following findings from the oral and documentary evidence before me. I do so based on the demeanour of witnesses, the tone and manner of giving evidence, the consistency (or otherwise) between oral evidence and witness statements, the existence (or otherwise) of corroborating evidence, and the inherent plausibility of versions of events.

[21] I prefer the evidence of Mrs Taylor to Mr Hoad where there is inconsistency. It was more credibly and reliably presented, with less inconsistency and selectiveness.

[22] Mrs Taylor is a long term (15 year) friend of Mrs Hoad. She has known Mr and Mrs Hoad for a substantial period of their marriage.

[23] Hoad Water Cartage purchased Andy’s Water Transport in 2015.

[24] After the purchase it became readily apparent to Mr and Mrs Hoad that the expanded business required the engagement of a manager to more professionally organise their compliance, finance and administrative affairs (including human resources).

[25] In about March 2016 Mr Hoad approached Mrs Taylor to undertake the role. Mrs Taylor agreed. She was engaged by Hoad Water Cartage to work as a part time Finance and Administration Manager on the books and administrative affairs of the three businesses: Hoad Water Cartage, Andy’s Water Transport and Optiblue. She worked approximately 30 hours a week at a negotiated rate. She commenced in about April 2016.

[26] Mrs Taylor was assisted by Mrs Hoad and an accountant (Ms C 12, who resigned in 2018).

[27] In the early months of 2016 Mrs Taylor developed procedures to track delivery jobs (undertaken by drivers) and payments. Conflict soon arose with a logistics manager Mr A. 13 Mr A took exception to Mrs Taylor issuing new polices and requiring administrative accountability by drivers. She was subjected to belittling comments based on gender. She drew this unsatisfactory situation to the attention of Mr and Mrs Hoad recognising that this may be a product of a ‘blokey’ culture inherited from Andy’s Water Transport.

[28] At Mrs Taylor’s suggestion, in about May 2016 Mr and Mrs Hoad agreed to convene regular formal management meetings to assist coherent decision making, secure clarity in work to be done and by whom and ease the difficulty Mrs Taylor was experiencing in introducing change and having her role respected. These meetings commenced.

[29] In mid-2016 Mr A left the business. Mr B 14 was appointed Logistics Manager.

[30] In mid-2016 Mrs Taylor was, in addition to her finance and administration role, appointed dispatch co-ordinator. Over the course of the next 12 months the work environment settled, the business made strides although Mrs Taylor continued to witness but was not unduly impacted by the ‘blokey’ culture amongst drivers, sales and logistics staff (operations).

[31] Mrs Taylor, in her role as Human Resources Manager oversaw (together with Mr and Mrs Hoad and Mr B) the implementation of the employer’s Human Resources and Procedure Policy Manual 2017. 15 This Manual includes a Code of Conduct Policy and an Equal Opportunity and Anti Bullying Policy.

[32] In mid-2017 a series of conflicts arose between Mrs Taylor and Mr B in which Mrs Taylor believed that Mr B (under Mr Hoad’s influence) was not providing support or respect for her position. Due to perceived resistance from Mr Hoad, Mrs Taylor became reluctant to train staff. She considered Mr Hoad to be overly critical of her work and inconsistent (passive-aggressive) in dealing with her especially in relation to dispatching work. She was reprimanded by Mr Hoad, but considered male staff (including Mr B) not similarly reprimanded when mistakes were made. She asked to be taken off dispatching work due to her heightened level of anxiety. She considered Mr Hoad’s conduct and to a lesser extent Mr B’s conduct discrimination and bullying. She was frustrated at not being consulted on all human resources (HR) matters and not having some of her calls answered. She asked Mr Hoad to desist and take action against the bullying behaviour but says that he would reply that she was wasting his time with such complaints or that action would be taken in his time frame, not hers. When she complained, Mr Hoad accused Mrs Taylor of “playing the power thing again” 16.

[33] In the second half of 2017 Mrs Taylor’s work environment further deteriorated. She experienced resistance from drivers when introducing new procedures (such as reporting forms), when trying to introduce or seek compliance with health and safety protocols, when questioning (for payroll purposes) work sheets and working hours, and increasingly felt usurped in her duties by Mr Hoad and Mr B (including limits placed on her dealing with drivers). She considered there to be a “culture of disrespect for my position” 17.

[34] In about November 2017 serious matrimonial conflict boiled over between Mr and Mrs Hoad. This created severe tension and strain in the work environment for all managers including Mrs Taylor. Mr and Mrs Hoad separated. Mr Hoad lived off the property but worked on the property. Mrs Hoad lived and worked on the property.

[35] Mrs Taylor worked closely alongside Mrs Hoad who was the Director of Finance and with whom she regularly consulted. Mr Hoad became increasingly critical of Mrs Taylor, including by levelling criticism of her professionalism which she regarded as personal and insulting. Mr Hoad believed that Mrs Taylor was involved in a conspiracy with his wife against him and his business.

[36] Upon the marriage breakdown, in-person communication on business matters between Mr Hoad and Mrs Taylor ceased. Each communicated only by telephone or email.

[37] In early 2018 Mrs Taylor advised Mr Hoad that she considered his conduct towards her insulting and belittling. She also told him that she felt very uncomfortable about telephone conversations with him in which he would ask questions of her that related to her knowledge (or otherwise) of private matters between he and Mrs Hoad.

[38] In about March 2018 Mr Hoad also called a stop to management meetings given the breakdown of his relationship with Mrs Hoad.

[39] Due to the difficult work environment, from early 2018 Mrs Taylor did not attend the workplace at Carey Gully. With Mr and Mrs Hoad’s knowledge and consent, she worked from home.

[40] From about March 2018 Mr Hoad demanded from time to time that Mrs Taylor send him regular (sometimes daily) lists of tasks she was performing. Mrs Taylor’s evidence was that no other employees were subjected to such demands by Mr Hoad. Mrs Hoad made no such demands of Mrs Taylor. Mrs Taylor says she felt humiliated by such requests which she considered questioned her work ethic.

[41] In about April 2018 telephone contact between Mrs Taylor and Mr Hoad ceased. Thereafter, and to the present (except for cross examination in these proceedings and one face to face interaction in late 2018), their contact was by email only.

[42] In about April 2018 Mrs Taylor was deeply distressed at the bullying she considered she was subjected to, and the general work environment. She considered it unhealthy and psychologically unsafe. She expressed her distress to Mrs Hoad. Mrs Taylor anonymously contacted Safe Work SA to seek advice. Mrs Hoad then contacted Safe Work SA and requested intervention.

[43] Safe Work SA attended the workplace in April 2018. Three separate Improvement Notices under the Work Health and Safety Act 2012 (SA) were issued by Safe Work SA on 24 April 2018 18. The Notices required Hoad Water Cartage to:

● In consultation with relevant workers, the PCBU must develop and implement a safe system of work to minimise the risk to psychological health at the workplace. Workers are to be provided with instruction and training on the safe system of work that is implemented;
● Ensure all workers are provided with training in the contents and use of document titled Code of Conduct Policy; and
● Ensure all workers are provided with training in the contents and use of document titled OHSE 027 Incident Investigation Report.

[44] In the wake of the Safe Work SA Improvement Notices, certain policies and training were formalised and job descriptions updated. Mrs Taylor’s job description was as Finance and Administration Manager and as Human Resources Manager.

[45] Mrs Taylor’s relationship with Mr B improved (after Mr B took special leave). In his capacity as responsible for occupational health and safety (OHS), Mrs Taylor reported to Mr B on a number of occasions that she considered herself to be subject to bullying by Mr Hoad. No specific remedial action was taken.

[46] In mid-2018 Mr Hoad sent a number of emails to Mrs Taylor critical of her work and copied those emails to the accountant (Ms C). Mrs Taylor considered that copying Ms C into belittling emails addressed to her by Mr Hoad was humiliating and demeaning. Mr Hoad also copied some of these emails to his lawyer. Mrs Taylor considered this intimidating conduct.

[47] The matrimonial dispute became litigious in early 2018. Mr Hoad applied for an order from the Federal Circuit Court of Australia that Mrs Hoad be removed as a director of Hoad Water Cartage. Mrs Hoad cross claimed. On 21 May 2018 a Consent Order was made by the Court under the Family Law Act 1975 (Cth). This Court Order was an interim order pending resolution of a property dispute between Mr Hoad and Mrs Hoad over business and personal assets consequent on the dissolution of their marriage (that matter is set down for trial in the Court in 2019, unless otherwise resolved).

[48] Paragraphs 2 to 4 of the Court Order 19 provide as follows:

“2. That in respect of the parties’ businesses “Andy’s Water Transport”, “Hoad Water Cartage” and “Opti-Blue”:

2.1. In accordance with the businesses’ Operations Chart the Husband do continue in his roles as Managing Director and Operations Manager and oversee all areas as per the organisational chart and coordinate drivers, deliveries and dispatch, undertake servicing and maintenance of all equipment and vehicles, negotiations with suppliers and clients, maintenance of assets and stock control and in respect of Opti-Blue, stock manufacture through delegation to and management of the Logistics/Sales Manager Mr [B]; and

2.2. In accordance with the businesses’ Operations Chart, the Wife do continue in her role as Director of Finance and oversee and undertake business development, management of customer accounts, payroll, database management, human resources, administration, technical support and development through delegation to and management of the Finance Administrative Manager Ms P Garrard-Talbot and the outsourcing of accounting to [Ms C] and marketing to Mr T Taylor.

2.3. That the parties be restrained, and an injunction is hereby granted restraining each of them from removing and/or destroying any business records from the operations office of the business or from removing or changing any locks fitted to the business premises.

2.4. That the Wife be restrained, and an injunction is granted restraining the Wife from:

2.4.1. providing any instruction or direction on any matter relating to the duties or terns of employment of [Mr B] in his capacity as the sales and logistics manager and occupational health and safety representative of the businesses;

2.4.2. communicating with the drivers of the businesses as to any operational matters or giving of any directions whatsoever to the drivers employed by the businesses as to operational matters;

2.5. That the Husband be restrained, and an injunction is granted restraining the Husband from providing any instruction or direction on any matter relating to the duties or terms of employment of Paula Garrard-Taylor in her capacity as the finance and administrative manager of the business save as to those matters which the Husband presently instructs/directs in accordance with the Operations Chart.

2.6. That the Wife do continue to collect all incoming mail of the businesses on a daily basis and, after inspection of same, provide such mail to the Husband and/or any appropriate employee by close of business on the date of collection.

2.7. that the parties do all such things as may be necessary to arrange for after-hours calls to be diverted to a virtual receptionist with Office Earth and all after hours emergency calls to be diverted to the Husband or a suitable employee at the direction of the Husband AND for that purpose, the Wife forthwith return to the Husband the mobile telephones of the businesses as are utilised for the purpose of business sales and enquiries.

3. That the parties be hereby restrained, and an injunction be granted restraining each of them from transferring, mortgaging, assigning, disposing of or diminishing the value of the parties joint or individual interests in the real or personal property of each of them.

4. That the parties are hereby restrained and an injunction is granted restraining each of them from denigrating the other to or in the presence of employees, suppliers, contractors to the business.”

[49] Both Mr and Mrs Hoad acknowledged before me that the essence of the Court Order was that, as an interim arrangement, and in the words of Mr Hoad, “I was still to run the business and oversee the day to day management of all three businesses, being Andy’s Water Transport, Hoad Water Cartage and Optiblue. The wife was to continue in her role of managing the accounts and other administrative tasks.” 20 In fact, Mrs Hoad is the Director of Finance, a director of Hoad Water Cartage, its equal owner and its company secretary.

[50] As part of the Court Order, Mr and Mrs Hoad also referenced the Organisational Chart for the business of both Andy’s Water Transport and Hoad Water Cartage. 21 The Organisational Chart relevantly provides as follows:

[51] In September 2018 Mr Hoad decided that Mrs Taylor was not complying with his instructions and that she should receive a formal warning. The context was that Mrs Taylor considered that under the Organisational Chart she was required to report on finance and administrative matters to Mrs Hoad and that under the Court Order it was Mrs Hoad and not Mr Hoad who could direct her on finance and administration. Conversely, Mr Hoad considered that he had such authority and that disputing his authority was insubordinate on Mrs Taylor’s part. Mr Hoad decided to instruct his lawyers to write and send a letter of warning to Mrs Taylor, which they duly did on 10 September 2018. 22 The letter warned of dismissal “should your behaviour continue”. It concluded:

“We confirm that under the organisational chart our client is Managing Director and you are to answer to him.”

[52] Alarmed at both this escalation as well as the threat of dismissal coming from Mr Hoad’s lawyers, Mrs Taylor considered that the bullying had to be brought to a head. The next day, 11 September 2018, she filed these proceedings.

[53] On 4 October 2018 Mr Hoad sent Mrs Taylor an email 23, copied to Mrs Hoad, in which Mr Hoad said that he had “become aware that your immediate manager has been denying you a comfortable and safe working environment…this is a complaint that I take seriously and unaware of until recently and apologise on behalf of my company. Please let me know if you would like your complaint escalated to a higher level…if you need a new office chair please select one…”. The “immediate manager” Mr Hoad was referring to was Mrs Hoad. The context was that Mrs Taylor had mentioned in conversation to Mr B the utility of a new chair. No complaint was ever made to Mr B. Mr B mentioned this to Mr Hoad in casual conversation. Despite their close working relationship, Mr Hoad’s email was met with a hostile reaction by Mr B. In an emailed reply to Mr Hoad, to Mrs Hoad and to Mrs Taylor dated 4 October 201824, Mr B said (in part) as follows:

“To Mark:…I did not expect this unprofessional manner by you…I will not endorse your email. Paula has never indicated to me that Charmaine has ever neglected her duties towards her or have I indicated that to you in any way.”

He went on:

“To Paula: I would like to apologise to you for any discomfort caused by my actions...it was not intended to cause you distress in any way. Nor did I expect it to be handled in this way.”

He pointedly concluded:

“To Mark and Charmaine:…Please consider retaining an independent manager to oversee the business during these strained times until your personal matters are resolved.”

[54] Notwithstanding this application being the subject of conciliation by the Commission at that very time (conferences having been conducted by myself between Mr Hoad and Mrs Taylor on 5 and 31 October 2018), in November 2018 Mr Hoad decided that Mrs Taylor was again not complying with his instructions and that she should receive a second formal warning. The context was twofold.

[55] Firstly, on 9 October Mrs Hoad was alleged to have driven a motor vehicle dangerously on the property in the proximity of workers and other persons, creating an OHS risk. Mr Hoad asked Mrs Taylor to investigate and report to him on Mrs Hoad’s allegedly dangerous actions. Mrs Taylor provided Mr Hoad a report which, on 30 October, he considered inadequate and protective of Mrs Hoad 25. Mr Hoad then sent Mrs Taylor a list of eight questions to which he required answers. Mrs Taylor replied providing additional information. Mr Hoad considered the reply unsatisfactory. He considered that she had not complied with his direction.

[56] Secondly, Mr Hoad then on 2 November 2018 emailed Mrs Taylor in the following terms: 26

“Please prepare the relevant documentation to issue Charmaine Hoad a formal written warning concerning her dangerous and aggressive actions in the workplace. Send them to me today so I can review them before forwarding to Charmaine.”

Mrs Taylor replied by email a short time later:

“I will have a response shortly. As you could understand, due to your lawyer being continually included in your correspondence, I will have to seek legal advice due to this matter being presently before fair work.”

[57] Mrs Taylor engaged a lawyer, who replied by letter asserting that Mr Hoad’s direction was unreasonable and should be withdrawn.

[58] Mr Hoad considered that Mrs Taylor’s refusal to prepare a warning letter directed at Mrs Hoad was also insubordinate. He then instructed his lawyers to send a second letter of warning (this time to Mrs Taylor’s solicitors), which on 12 November 2018 they duly did. 27 The letter concluded:

“Your client’s failure to respond to the lawful direction of the Managing Director as required is a breach of her position…and is totally inappropriate. Our client instructs that there is clear evidence of a conspiracy between your client and Mrs Charmaine Hoad to denigrate, bully and harass him into submission…our client has no alternative but to issue her with a second formal warning and ask her to meet her duties and obligations…”

[59] Shortly after Mrs Taylor saw a doctor who diagnosed her as suffering stress and anxiety from the workplace environment. She informed Mr Hoad and Mrs Hoad that she would be absent for two days on personal leave (stress) other than preparing the payroll.

Current Status

[60] On 5 December 2018 Mrs Taylor suffered an anxiety attack in the early hours of the morning and was placed by her doctor on light duties under South Australian (WorkCover) laws.

[61] Despite being on light duties, on 21 December 2018 Mr Hoad sent Mrs Taylor approximately 50 emails with attachments requesting her to process reimbursements for his expenses. That afternoon Mrs Taylor was certified by her doctors as unable to work for two weeks.

[62] On 4 and 18 January 2019 Mrs Taylor was certified as able to return to work on light duties with reduced hours. Her health and capacity to work was and remains under ongoing medical supervision and assessment by her doctors and WorkCover’s return to work officers.

[63] Mrs Taylor continues to be employed as Finance and Administration Manager and as Human Resources Manager albeit on reduced hours (from approximately 30 per week to 15 per week). She has been employed for almost three years.

[64] Mrs Taylor continues to communicate with Mr Hoad only by email and works from home.

[65] Mrs Taylor says that the alleged bullying is continuing although taking more subtle forms. She claims for example that Mr Hoad is allegedly allowing employees to ignore or not comply with procedures or policies put in place by Mrs Taylor under her responsibilities as human resources manager.

[66] Mrs Taylor says that the past and continuing bullying of her has caused and continues to cause anxiety, stress, sleeplessness, headaches and is materially impacting her quality of life.

[67] Mrs Taylor fears for her job. She believes that if she defends herself in the workplace then Mr Hoad will consider her subordinate and dismiss her or send her further intimidating letters from his lawyer which will increase her anxiety. She also fears that she will be ostracised or discriminated against for having made a WorkCover claim.

[68] Mrs Taylor seeks the following orders: 28

1. That all my duties and authority be reinstated as per my job description including that I am able to communicate with the drivers/staff without hindrance or intimidation.

2. That I report directly to Ms Charmaine Hoad.

3. That Mr Hoad be restrained from providing any instruction or direction on any matters relating to my duties or terms of employment in my capacity as Finance and Administration Manager of the business.

4. That Mr Hoad discuss business with me by email only or through Ms Hoad.

5. That Mr Hoad only discuss business with me.

6. That there be a revised Organisational Chart for clearer definition and reflection of job descriptions (as it seems to be in dispute at present).

7. That Mr Hoad attend a management/leadership training course (unfortunately, online will only be completed by others).

8. That Mr Hoad attend and complete an anti-bulling training course.

9. That I receive a written retraction from Mr Hoad and from Lindblom Lawyers re unlawful disciplinary procedures.

10. That a number of further anti-bullying policies, procedures and training for the business and staff be implemented.

11. Any further orders the Commission sees fit.

Was Mrs Taylor bullied at work?

[69] Section 789FD(1) of the FW Act provides:

“(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.”

[70] It should be noted that reasonable management action carried out in a reasonable manner is not bullying conduct. 29

[71] Mrs Taylor submits that she was bullied at work soon after commencing in 2016. She submits that it was Mr Hoad who bullied her and persons under his control. She submits that the bullying commenced prior to the matrimonial problems between Mr and Mrs Hoad and progressively became more intense, personal and intolerable. She submits that the bullying took a variety of forms including:

● Rudeness and abuse;
● Exposing her to private vitriol;
● Exclusionary behaviour;
● Unreasonable work demands and scrutiny; and
● Unreasonable threats to dismiss.

[72] Each of the categories of conduct contended by Mrs Taylor, if established on the evidence, are capable of constituting bullying conduct if individually or collectively that conduct was repeated, created a risk to health and safety and was unreasonable.

[73] Mr Hoad disputes that some of the events or incidents outlined by Mrs Taylor occurred, or occurred in the manner portrayed. In this decision I make findings of fact on those disputed matters.

[74] Mr Hoad submits that in respect of events which he agrees occurred or which I find to have occurred, his conduct was reasonable management action taken in a reasonable manner, and therefore not bullying. This incudes, for example, “my requests, as Managing Director, for information that I need to know to properly and effectively manage and run my business, or to my requests for money to be spent for the continued operation of the business.” 30 Mr Hoad further submits that “Paula has sided with Charmaine and has allowed the matrimonial dispute with Charmaine to influence her behaviour towards me…The allegations of bullying and harassment made by Paula substantially arise from her failure to understand the Organisational Structure.”31

[75] Aside from his oral evidence and documentary material in this proceeding, Mr Hoad relies on an affidavit dated 13 September 2018 32 which he swore in the Court proceedings in support of his further application to remove Mrs Hoad as a director of the employer.

[76] For her part, Mrs Hoad says that she witnessed bullying conduct against Mrs Taylor and was unable to prevent such conduct in light of the matrimonial dispute. She also submits that she witnessed the impact of bullying on Mrs Taylor and was sufficiently concerned to seek intervention by Safe Work SA and then launch her own anti-bullying proceedings in the Fair Work Commission.

[77] I now deal with each of the primary forms of bullying conduct alleged by Mrs Taylor.

Rudeness and abuse

[78] Mrs Taylor’s evidence was that, on multiple occasions in the course of her employment Mr Hoad communicated with her in a rude, belittling and abusive manner which made her feel personally and professionally insulted and humiliated. She also contends that Mr Hoad failed to intervene when other staff spoke to her in a rude or belittling manner.

[79] Mr Hoad denies having been rude, belittling or abusive towards Mrs Taylor whether in person, over the phone or by email.

[80] I am satisfied that soon after commencing employment Mrs Taylor was described on more than one occasion as “that fucking woman” by Mr A in the presence of Mr Hoad and Mrs Hoad, and that no action was taken by Mr Hoad to protect her from that abuse. Mrs Hoad took action by writing to Mr A expressing her distaste for the behaviour. 33

[81] I am satisfied that on more than one occasion Mr Hoad told Mrs Taylor that “no one else would employ you” or words to that effect, with the inference that she should consider herself grateful to be working for him.

[82] I am satisfied that on more than one occasion Mr Hoad used gender laced language to demean Mrs Taylor and her working relationship on finance and accounts with Mrs Hoad, for example by referring to her as part of a “girls club”, a “girlfriends club” 34 and that “they don’t know what they are doing because they aren’t truck drivers”. In evidence to the Commission Mr Hoad said:

“The cultural difference there is not the men, it’s not the male staff, the cultural difference is the female staff thinking that the males don’t like them. It’s extremely one sided, all the guys there, they’re all, most of them are about my age, all got ex-wives and kids and that sort of thing. All the employees are rough around the edges but they’re still gentlemen. They have upmost respect for any female young or old. They’re the sort of people that still open the door for a lady, they’ll stop and change a tyre on the side of the road for a lady and that’s what the guys are like and they’ll still do the same and have the upmost respect for Charmaine and Paula.” 35

[83] Mr Hoad’s opinion is not supported by the weight of evidence before me. Mr Hoad continues to blame female staff employed by Hoad Water Cartage (Mrs Taylor and Mrs Hoad) for an unsatisfactory workplace culture. There is clearly a divide and an unsatisfactory workplace culture evidenced by the fact that a mature and capable employee such as Mrs Taylor feels belittled and disrespected. The evidence before me suggests that its cause is threefold: in part a product of the blokey attitudes inherited when the business purchased Andy’s Water Transport; in part a product of a failure of leadership on Mr Hoad’s part to show respect for Mrs Taylor’s role and to demand respect for her and the female staff from amongst the operations team; and in part a product of the tense and strained atmosphere created by the bitter matrimonial dispute between Mr and Mrs Hoad. Mrs Taylor’s alignment and personal friendship with Mrs Hoad has not assisted in the current environment, but it is not a cause of the workplace culture or bullying conduct.

[84] I am also satisfied that on more than one occasion Mr Hoad used demeaning language that was insulting to Mrs Taylor’s professionalism and standing.

[85] For example, in his employer response to Mrs Hoad’s application (F73) Mr Hoad referred to “the wife and her sidekick Mrs Taylor” 36 Describing Mrs Taylor as a “sidekick” is appalling conduct, compounded in seriousness by it being expressed in an official document lodged in Commission proceedings. When this was put to Mr Hoad in cross examination he apologised to Mrs Taylor and claimed that his lawyer was to blame and that he had been unaware of that reference. The apology was expressed sincerely but only under the pressure of the witness box. The F73 was not filed by Mr Hoad’s lawyer, it was filed by Mr Hoad himself. The F73 was not signed and dated by Mr Hoad’s lawyer but signed and dated by Mr Hoad himself, in his own hand. Whether or not his lawyer drafted paragraph 2.2 of the F73 Mr Hoad is responsible for its content and what is said by him or in his name.

[86] Similarly, in his affidavit of 13 September 2018 (on which Mr Hoad expressly relies in this proceeding) he refers to Paula Taylor as “our bookkeeper”. Aside from the fact that the term “bookkeeper” is antiquated language, Mrs Taylor performs duties in the business more substantial than simply keeping the books. She has human resources responsibility and has responsibility to require compliance by staff with legal and financial obligations. Being described as “our bookkeeper” is misleading and disrespectful of the totality of the role she undertakes.

[87] Beyond using words such as these, the evidence overwhelmingly points to a finding that Mr Hoad was regularly dismissive and belittling of Mrs Taylor when she sought to complain of demeaning or dismissive conduct towards her by Mr Hoad or by persons working in ‘operations’.

[88] Whilst I take account of the differing context of each email communication, including that (on some of these occasions) Mr Hoad was expressing a legitimate business frustration as Managing Director and Operations Manager, the content and autocratic tone of many of his email communications to Mrs Taylor is in combination evidence of bullying conduct. For example:

● “our drivers need to be number one in this company and listened to” 37
● “this again is a classic example of why accounts should not be trying to take over and run sales dispatch and operations. It is clearly not working with you both performing at a substandard level” 38
● “you have both had a serious and negative effect on the morale and confidence in the company that I founded in 1988” 39
● Mr Hoad signing off emails with words such as “with regrets again” 40
● “I don’t take kindly to your blaming attitude” 41
● “Would you both stop wasting my time, why do you have to make things so complicated” 42
● “I have taken offence to your previous email…in no other workplace would your bad behaviour and total lack of respect towards your employer be tolerated…This matter is now closed. Do not reply to this email” 43
● “would you both stop wasting my time and making things so complicated” 44
● “stop wasting my time with trivial crap” 45
● “stop giving Charmaine false, misleading and unprofessional advice!!” 46
● “you are to stop any further involvement with the metred hydrants immediately apart from paying the water account…Do not reply, the matter is closed” 47

[89] It is relevant however to note that whilst this was the oft experienced tone and content of Mr Hoad’s communication with Mrs Taylor in 2018 (following the matrimonial split between Mr and Mrs Hoad), it had not always been thus. In a frank exchange of text messages in September 2017 (prior to the matrimonial split) the following was said between Mrs Taylor and Mr Hoad: 48

“Paula: I just need to let you know that I don’t ever get upset because our conversations get heated. I would prefer that any day that they be that way and honest than civil and false. Have a good weekend.

Mark: Hi Paula. I’ve just read your text and thanks for your kind words. I feel the same as well perhaps that’s why we work so well together. You have a great weekend also and I’ll look forward to working with you on Monday.”

[90] Regrettably, the tone of this 2017 exchange was the exception not the rule, particularly throughout 2018.

[91] I find that rude and dismissive communication by Mr Hoad including by email belittled Mrs Taylor, and that this behaviour was aggravated when copied to or witnessed by other persons. Mrs Taylor had good reason to feel that her professional and personal standing was being disrespected by such communication. Some of these emails were copied to the accountant (Ms C) and others directed at both Mrs Taylor and Mrs Hoad.

Exposing Mrs Taylor to private vitriol

[92] The acrimonious matrimonial separation between Mr and Mrs Hoad was acknowledged by all parties before me as ugly and creating an uncomfortable and at times unbearable tension in the workplace.

[93] The evidence supports a conclusion that from time to time both Mr Hoad and Mrs Hoad made some efforts to try to keep managers and employees away from their personal vitriol. On other occasions however their feelings were apparent and expressed.

[94] Being a long term friend of Mrs Hoad and working in the business closely with Mrs Hoad it was not surprising that from time to time Mrs Taylor would be exposed to either Mr Hoad’s unhappiness with his estranged wife or Mrs Hoad’s unhappiness with her estranged husband.

[95] Mrs Taylor submits that Mr Hoad exposed her to his vitriol against Mrs Hoad, was told by Mrs Taylor that she was uncomfortable about that, but that Mr Hoad continued to persist either by expressing opinions or seeking information about Mrs Hoad.

[96] There is evidence to support Mrs Taylor’s position.

[97] On 10 November 2017 Mr Hoad sent text messages to Mrs Taylor and to Mr B concerning personal matters. 49 I do not consider these to have been unreasonable. Whilst personal in nature, they were advising of the matrimonial split.

[98] On 2 February 2018 50 Mrs Taylor told Mr Hoad in a telephone conversation that she did not want to be involved with his personal situation.

[99] On 29 March 2018 51 Mr Hoad had a phone conversation with Mrs Taylor in which he pressed her to answer personal questions and disclose personal opinions. Mrs Taylor responded “Please just can we talk about business?” Mr Hoad persisted. Mrs Taylor again said “Please can we talk about work this is making me uncomfortable”. Mr Hoad persisted.

[100] On 30 August 2018 52 Mrs Taylor told Mr Hoad “I respectfully ask again that I not be put in a position of conflict between you and Charmaine”.

[101] On 8 June 2018 Mrs Taylor included in an email to Mr Hoad the following: 53

“I understand the personal issues you are both having, however the stress being felt by me, your ongoing accusations that you include me in so that you can continue your personal fight with Charmaine is unfair”

[102] Mr Hoad replied on 11 June 2018 accusing Mrs Taylor of raising his personal life:

“It’s disgusting that you continually bring up my personal life in work related conversations. It’s very unprofessional and obviously a personal attack against myself, and it will stop today!”

[103] The evidence before me does not support a conclusion that Mrs Taylor instigated discussion with Mr Hoad about his personal life in any work context once the matrimonial separation became apparent. Mr Hoad’s email of 11 June 2018 has no foundation in fact. The converse is the weight of evidence before me: that at least from early 2018 (and although not a regular feature of their communication) there were a number of occasions in which Mr Hoad raised his private matrimonial issues with Mrs Taylor and in a work context thus exposing her to the ugliness of the matrimonial dispute. Even taking into account the blurring of their work and personal relationship by virtue of Mrs Taylor’s prior association with the Hoads, doing so was unreasonable once Mr Hoad was informed by Mrs Taylor that she felt uncomfortable with such communication and had asked him to desist.

[104] I am also satisfied that the office chair incident of October 2018 was an example of Mr Hoad seeking to leverage his vitriol against Mrs Hoad by inappropriately engaging his managers (including Mrs Taylor) in his personal battle with Mrs Hoad. Mr Hoad’s faux concern for Mrs Taylor’s well-being in his email of 4 October 2018 was as unsubtle as a sledgehammer. It was rightly met with a scathing put down by Mr B who in no uncertain terms told Mr Hoad that he had misrepresented Mrs Taylor’s position in an unprofessional manner.

[105] Mr Hoad’s faux concern for Mrs Taylor was repeated in the witness box when, in answer to a question from her about her legal liabilities if she was withheld information, he replied “I’ve got your back the whole time…I’d back you a hundred percent” 54. This statement was made insincerely and in a condescending tone.

[106] Similarly, for reasons also set out in this decision, I consider Mr Hoad’s request of Mrs Taylor in November 2018 to prepare a warning letter directed at Mrs Hoad to be evidence of his unwillingness to limit Mrs Taylor’s exposure to his personal feelings towards his estranged wife.

Exclusionary behaviour

[107] Mrs Taylor contends that she was excluded from involvement in and consultation on matters for which she was employed. There are two primary elements to this submission: that Mrs Taylor was unreasonably excluded from phone or dispatch work by Mr Hoad or Mr B; and that that Mrs Taylor was unreasonably excluded from human resources activities by Mr Hoad except when he required such activities of her.

[108] In relation to dispatch work, there is some evidence 55 that Mrs Taylor complained to Mr Hoad that she considered some of her tasks to have been taken over or absorbed into the work of Mr B. However I do not consider that evidence sufficient to sustain an allegation of bullying conduct. Mr B had, as a central role, responsibility for logistics. Mrs Taylor performed dispatch work for a period but gave it up, albeit with some reluctance when her work was overly criticised. Mrs Taylor was unhappy about not performing such work but I am satisfied that there were business reasons for dispatch being conducted by operations staff.

[109] Ms Taylor also submits that Mr Hoad restricted her engagement and interactions with drivers. There is evidence that Mr Hoad on occasions did instruct Mrs Taylor not to have direct dealing with a driver or drivers. There is also evidence that Mrs Taylor made her concerns known to Mr Hoad; for example on 21 August 2018 she said, by email: “I believe I’m being restricted from carrying out my job by being restricted from communicating with other staff” 56. To the extent that dealing with drivers, operations staff or third parties was an incident of her role as Finance and Administration Manager and Human Resources Manager this was an unreasonable constraint. However, on some occasions the limitations were based on reasonable operational and efficiency considerations rather than being exclusionary behaviour.

[110] In part, I find exclusionary behaviour established on those occasions when Mrs Taylor was unreasonably directed not to engage with or was made unwelcome when engaging with operational staff and where such engagement was an incident of her finance, administration and human resources roles.

[111] In relation to her role as Human Resources Manager I accept the evidence of Mrs Taylor that she was increasingly not consulted by Mr Hoad in advance of Mr Hoad employing operational staff, and that her role in relation to recruitment was increasingly confined to processing paperwork once employment has been decided upon rather than undertaking pre-employment tasks such as checking CV referees of applicants and making recommendations to Mr or Mrs Hoad about employing candidates. I consider this exclusionary behaviour to be made out on the evidence before me. Whilst Mr Hoad strenuously advanced his right as Managing Director and Operations Manager to employ operational staff, it was not reasonable to exclude his Human Resources Manager from consultation and dialogue on recruitment matters. This is particularly so given the terms of the Court Order which expressly provided Mrs Hoad (not Mr Hoad) with a specific role overseeing “human resources”.

[112] I also conclude that Mrs Taylor’s concerns at the exclusionary behaviour were well founded. On 22 March 2018 she put it to Mr Hoad this way, by email: “My discussions and concerns…are going unheard. With the increasing chances of the business being audited due to valuation, it is my concern that I will be liable for decisions I have not made or been involved in with regarding payroll, HR (work hours accumulated, work injuries etc).” 57 I am satisfied that these were reasonably expressed concerns and it was not reasonable for Mr Hoad to fail to act on them.

Unreasonable work demands and scrutiny

[113] Mrs Taylor submits that Mr Hoad would make erratic and unreasonable work demands on her, and subject her work to unreasonable critical scrutiny.

[114] A threshold issue in considering this contention is whether, in light of the Court Order of 21 May 2018, Mr Hoad was lawfully empowered to issue any instruction to Mrs Taylor with respect to her work, or subject her work to critical scrutiny.

[115] Paragraph 2.5 of the Court Order expressly injuncts Mr Hoad as follows:

“2.5. That the Husband be restrained, and an injunction is granted restraining the Husband from providing any instruction or direction on any matter relating to the duties or terms of employment of Paula Garrard-Taylor in her capacity as the finance and administrative manager of the business save as to those matters which the Husband presently instructs/directs in accordance with the Operations Chart.”

[116] It is clear from the Court Order, when read as a whole, and the evidence before me, that the intention of the parties to the Order was (as an interim arrangement pending a settlement of business and other matrimonial assets) that Mrs Hoad would manage, oversee and direct those employees undertaking finance, administration and human resources functions whilst Mr Hoad would manage, oversee and direct employees undertaking operations (logistics, sales, driving).

[117] Relevantly, two of the managers of Hoad Water Cartage are specifically named in the Court Orders: Mr B and Mrs Taylor. Mrs Hoad is restrained with respect to directing Mr B (paragraph 2.4); Mr Hoad is restrained with respect to directing Mrs Taylor (paragraph 2.5). Mr Hoad is empowered to delegate to Mr B (paragraph 2.1); Mrs Hoad is empowered to delegate to Mrs Taylor (paragraph 2.2).

[118] Mr Hoad relies on the words in paragraph 2.5 of the Court Order “save as to those matters which the Husband presently instructs/directs in accordance with the Operations Chart” (the carve-out) to submit that he retains general power to direct Mrs Taylor in his capacity as Managing Director.

[119] I do not agree. Mr Hoad cannot rely on the carve-out to invoke a general authority to direct or instruct Mrs Taylor on all matters relating to her employment. To do so would defeat the intent and purpose of the primary restraint in paragraph 2.5. Mr Hoad’s position fails to take sufficient account of the fact that the carve-out is not a saving provision of a power to direct at large; it is only a savings provision with respect to powers he previously exercised and where those powers are consistent with the Operations Chart.

[120] The Operations Chart is the same document as referred to in this decision and in the evidence before me as the Organisational Chart. The Organisational Chart does not provide a basis on which it can be reasonably concluded that Mrs Taylor can be solely directed or directed at large by Mr Hoad. That chart provides that Mr Hoad and Mrs Hoad are at an equal level of hierarchy in the business. It provides a line of reporting by Mrs Taylor to both Mr Hoad and Mrs Hoad. It should be applied in a sensible manner and in the context of the Court Order read as a whole.

[121] In circumstances where Mrs Hoad (Director of Finance) was hierarchically equivalent to Mr Hoad (Managing Director), I consider that a reasonable application of the Organisational Chart in the context of the Court Orders read as a whole would have been that:

● Mrs Taylor in her capacity as Manager of Finance and Administration reported in the first instance to (and took direction from) Mrs Hoad on finance matters (including finance and payroll relating to operational staff); and

● Mrs Taylor in her capacity as Manager of Finance and Administration reported in the first instance to (and took direction from) Mr Hoad where the matter concerned the administration of operational staff and the business as a whole (including its customers); and

● Mrs Taylor in her capacity as Human Resources Manager reported in the first instance to (and took direction from) Mrs Hoad on human resources matters (including both administrative, finance and operational staff).

[122] Given the injunction in paragraph 2.5, I do not consider that Mr Hoad had reasonable grounds to generally direct or instruct Mrs Taylor on all or any matter relating to her duties or terms of employment.

[123] This application of the Court Order and the Organisational Chart would not have prevented Mr Hoad from requesting information of Mrs Taylor. Mr Hoad simply could not have instructed or directed her to have done so on financial or human resources matters. Only Mrs Hoad could have so directed or instructed. If a request had been made of Mrs Taylor by Mr Hoad on such matters, the manner of responding to that request would then have been a matter between Mrs Taylor and Mrs Hoad. Either Mrs Taylor could have complied with the request by communicating directly back to Mr Hoad, or equally she could have (without sanction or being said to breach her employment contract) referred the request to Mrs Hoad, sought Mrs Hoad’s direction on how to comply with the request or responded to the request through the agency of Mrs Hoad.

[124] It follows that as Mr Hoad has been injuncted since 21 May 2018 by orders of the Court from directing Mrs Hoad in relation to finance or human resources matters in the business, then any such direction or instruction he has given may have been unlawful.

[125] I do not need to determine in any final sense the lawfulness of Mr Hoad’s authority to have directed Mrs Taylor. This is because the anti-bullying provisions of the FW Act are concerned with reasonableness rather than lawfulness. An unlawful direction would be unreasonable behaviour within the meaning of section 789FD(1)(a) of the FW Act. So too may be a lawful direction.

[126] In the course of 2018 Mr Hoad regularly directed Mrs Taylor to list her daily tasks to be performed or which were performed. She found this demeaning. There is no evidence before me that Mr Hoad required this of any other employee. Mrs Taylor’s evidence, which I accept, is that he did not. Nor is there any evidence that Mrs Taylor was failing to perform tasks relevant to her role prior to such directions or instructions being issued. Whether lawful or not, Mr Hoad’s conduct in so doing was unreasonable.

[127] Not all of Mr Hoad’s requests for information or directions of Mrs Taylor were excessive or unreasonable. However, on more than one occasion they were. For example sending 50 emails on 21 December 2018 seeking expense reimbursements for himself drove Mrs Taylor into the hands of her doctors. Whilst I accept Mr Hoad’s evidence that he was not intending all of the reimbursements to be administered then and there, he failed to make this apparent to Mrs Taylor, at least initially. Whether lawful or not, it was unreasonable conduct.

[128] Mr Hoad’s criticisms of Mrs Taylor’s performance, usually expressed by email were also unfair and unreasonable. His criticisms were communicated in a rude and abrupt tone. They had an emotional edge, often referring to Mrs Taylor’s performance being unacceptable in the context of equal commentary about the performance or mental state of Mrs Hoad. Given the friendship between Mrs Hoad and Mrs Taylor, and given that they worked closely together on finance and administrative matters, Mr Hoad failed to objectively assess Mrs Taylor’s performance. His assessments were unreasonable in substance and in manner of communication.

Unreasonable threats to dismiss

[129] Mr Hoad engaged in both direct and indirect threats to dismiss Mrs Taylor.

[130] The indirect threats were occasional passive aggressive comments along the lines that no-one else other than he would be likely to employ her.

[131] The direct threats were the two warning letters sent by Mr Hoad’s lawyers on 10 September 2018 and 12 November 2018. The first warning letter contained an express threat of dismissal. The second, being a further (second) warning contained that threat by inference.

[132] Neither of the warnings were reasonably based.

[133] Mrs Taylor was entitled to take the view that the Organisational Chart did not require her to solely take instruction from Mr Hoad or take instruction on finance matters without reference to the Director of Finance (Mrs Hoad). Yet Mr Hoad considered her insubordinate for indicating that she would be directed by Mrs Hoad on financial matters and report to Mr Hoad through Mrs Hoad on such matters if that was appropriate. This was more than a reasonable interpretation of the Organisational Chart by Mrs Taylor in the context of the Court Order. It ought to have been readily apparent to Mr Hoad that Mrs Taylor was ‘the meat in the sandwich’ between he and Mrs Hoad and at the very least clarity around her reporting obligations needed to be provided through sensible discussion with her and Mrs Hoad. Instead, Mr Hoad ‘flew off the handle’, sent aggressive emails and issued a formal letter of warning of termination. In doing so he acted unreasonably.

[134] The second warning was more egregiously unreasonable. I am satisfied that Mr Hoad was entitled to question the report Mrs Taylor prepared on the OHS incident concerning Mrs Hoad. Mr B, who reported to Mr Hoad, was after all the OHS manager. However, whether incomplete or not (and there is some reason to conclude that it was incomplete 58) Mrs Taylor’s report was not unprofessionally prepared. If Mr Hoad had concerns with her report or investigation they required sensible discussion not a directive email demanding answers to eight questions and then a second written warning. What made the second warning particularly egregious is the fact that Mr Hoad demanded Mrs Taylor to prepare disciplinary material against Mrs Hoad. In the context of the matrimonial separation and its acrimony, and in the context of Mrs Taylor reporting to and working alongside Mrs Hoad, this was an unreasonable demand upon Mrs Taylor. Mrs Hoad was not just another employee; she was a co-owner. Mrs Taylor was not simply being asked to “do her job”, as Mr Hoad contended.59 She was having her loyalty tested in an act of gamesmanship. It demonstrated poor judgment on Mr Hoad’s part and disregard for the difficult circumstances in which Mrs Taylor was already placed. If Mr Hoad seriously wanted to have documentation prepared to discipline his co-owner, estranged wife and Finance Director he could have asked his lawyer to do just that. He was not incapable of doing so; he had asked his lawyer to prepare disciplinary correspondence targeted at Mrs Taylor. The unreasonableness of the second warning was compounded by the fact that it was issued at that very time Mrs Taylor had commenced these anti-bullying proceedings and that her application was the subject of conciliation by the Commission.

[135] Both warnings were also unreasonable in the manner in which they were delivered. On neither occasion was it reasonable for Mr Hoad to instruct his lawyer to send warnings to Mrs Taylor under the lawyer’s letterhead. Even allowing for Mr Hoad’s expressed lack of capability to prepare warning letters himself, he could have asked his lawyer to prepare a draft and then sent it by email or by letter under his own hand. Mr Hoad did not do this because he wanted to intimidate Mrs Taylor to the greatest degree possible. It drove Mrs Taylor herself to have to consult a lawyer, commence her own legal proceedings (anti-bullying) and later see a doctor and make a WorkCover claim. Even allowing for the fact that her lawyer corresponded with Mr Hoad’s lawyers prior to the second warning, this was bullying conduct.

Conclusion on bullying conduct

[136] I have found that Mr Hoad engaged in multiple forms of bullying conduct directed at Mrs Taylor and that it was unreasonable behaviour.

[137] Aside from being unreasonable by objective standards, it was also contrary to the employer’s own Code of Conduct Policy and Anti Bullying Policy.

[138] The Code of Conduct provides that each employee is to exercise “fairness, equality, courtesy, consideration and sensitivity in dealing with other employees...” 60 Mr Hoad failed to do so in his dealings with Mrs Taylor.

[139] The Equal Opportunity and Anti Bullying Policy provides that the employer is “committed to providing a workplace free from discrimination, sexual harassment and bullying. Behaviour that constitutes discrimination, sexual harassment or bullying will not be tolerated…” 61 That is not the work environment in which Mrs Taylor was working.

[140] The bullying conduct was serious and conducted over a prolonged period. It was initially driven by Mr Hoad’s unwillingness to provide full and proper respect for Mrs Taylor’s role and her position as a female manager. Once the matrimonial acrimony between Mr and Mrs Hoad spilled over into the workplace in 2018, his bullying conduct was driven by a lack of objectivity to the near impossible position he and Mrs Hoad had placed Mrs Taylor in light of their matrimonial conflict. Mrs Taylor became collateral damage in the matrimonial dispute, and Mr Hoad was indifferent to that consequence. It was compounded by a failure to provide clarity to Mrs Taylor about her reporting obligations or to resolve disagreement between the directors about those obligations. The need to do so should have been self-evident in light of Mr Hoad’s one-sided view about the May 2018 Court Order and its reference to the Organisational Chart. That view continued to be expressed by Mr Hoad in the witness box in these proceedings. In an exchange in cross examination he said in a directive tone to Mrs Taylor:

“I’m your boss Paula. Charmaine’s your manager, I’m your boss. We need to clarify this.” 62

[141] Rather than giving level-headed thought to Mrs Taylor’s circumstances, Mr Hoad allowed Mrs Taylor to be collateral damage in his animus towards his estranged wife, and her attitude towards him.

[142] Lest this decision be misunderstood, I make it clear that in so finding I pass no observation on whether Mrs Hoad has acted reasonably or otherwise towards Mr Hoad or who is blameworthy or more blameworthy for the matrimonial acrimony spilling over into the workplace and for the dispute over personal and business assets. That is not the issue before the Commission. My jurisdiction in this matter is solely related to whether Mrs Taylor, whilst at work, was subjected to bullying behaviour and (if so) by which individual or group of individuals and (if so) what can reasonably be done to prevent future bullying.

[143] I recognise that Mr Hoad (and Mrs Hoad) also found themselves in difficult positions. They had a private family business that they wished to continue to operate in the midst of a bitter matrimonial separation. Although each see a personal interest in not eroding business value and Mr Hoad in particular holds a deep attachment to the business he first established in 1988, none of this excuses or explains bullying behaviour. It is the responsibility of adult persons who own a business, when placed in a position of personal dispute, to have sufficient presence of mind to comply with their lawful obligations including to their employees if they wish to maintain direct personal involvement in the business during that period of private turbulence.

[144] Nor do I conclude that the management action Mr Hoad took was taken in a reasonable manner. It was devoid in tone and style of fairness or due process.

[145] I also find that Mr Hoad’s conduct created a risk to Mrs Taylor’s health and safety. Indeed, not just a risk but an actuality. It drove Mrs Taylor to distraction and ultimately into the hands of her doctors and, not surprisingly, a WorkCover claim. It damaged her psychologically and impacted her quality of life and professional esteem. It has made her fearful for her job, fearful of opening emails and fearful of what the day’s work may bring.

[146] I also find that Mrs Taylor remained professional and showed restraint in conduct and language even when making complaints to Mr Hoad about his conduct. This could not have been, and was not easy. Mrs Taylor did very little to bring the bullying conduct onto herself other than deciding (as was her right) to continue working for the Hoads notwithstanding their matrimonial dispute. Allowing for the fact that she was a long-term friend of Mrs Hoad, she tried as best she could to stay above the fray and maintain professional poise on business matters.

[147] Her considered approach is illustrated, for example, in this text exchange with Mr Hoad on 9 February 2018: 63

“Me: Mark I was not being disrespectful or back chatting to you. I informed you I was be put in the middle and uncomfortable. I’m now feeling bullied as I have informed you I was uncomfortable. I did not question you on a decision.

Mark Hoad: I’d never bully you or anyone else, I asked you to do a job and you questioned me, if anything I’m the one who is bullied.

Me: I didn’t question you. I said I couldn’t put your hotel through the books and explained why. I can put it as a drawing. Which is what I have done. I double checked with [Ms C] to make sure I wasn’t wrong. I did that in your favor so if I was wrong I would change it. Now you have told me I’m disrespectful.

Mark Hoad: You questioned me yesterday.

Me: I asked what rate you wanted for Chari-lee. Please tell me what I said no to. I understand you are stressed and frustrated however you are accusing me of something out of your frustration.”

[148] And in this frank email to Mr Hoad on 7 April 2018: 64

“Good afternoon Mark,

Regarding your email communication this morning, I find the emails I’m now receiving are quite distressing due to the false and misleading accusations you are putting upon me, furthering the stress I have been under for the last 6 months within the company.

I’m trying to work with conflicting information for example, only a short while ago you requested that I manage the phone every day after hours and all weekends. I explained that I was happy to help and support, however I didn't want to work 7 days a week.

Now I'm being accused of “THIS AGAIN IS A CLASSIC EXAMPLE OF WHY ACCOUNTS SHOULD NOT BE TRYING TO TAKE OVER AND RUN SALES, DISPATCH AND OPERATIONS!!!

IT CLEARLY NOT WORKING WITH YOU BOTH PERFORMING AT A SUBSTANDARD AND POOR LEVEL.”

This statement is belittling and personally insulting as I’m trying to support this business in a number of areas in times when we short of staff these last couple of weeks. I feel this statement is unfair.

This Easter has been the busiest time the company has had since it was acquired. I could not foresee what has transpired in the past couple of weeks, with staff shortages and the extra work load. Since this time I have only experienced more negative accusations than I have in the past six months, when all I wish to do is support the business in a viable manner.

I have behaved in a professional manner including informing you that fair work advise that “should we pay Rob, we should seek legal advice in case of future repercussions”. Not that I think there would be, however I need to keep the directors informed.

We have discussed the Ferguson job on the 28th March at 12.03pm, I messaged you that I had made the arrangements for the delivery to Fergusons and that the client had spoken with me and all was fine. This issue was resolved.

The following weeks order was dispatched to Graham Francis on the 31^st March, so that we were organised well in advance and this should not occur again. I have spoken to Rob regarding this dispatch and at that time I spoke with Rob it was still listed to Graham. It was then issued to Trevor for the Friday to deliver (see Attached; the dispatched job with the date it was entered).

I will contact Reveal on Monday and find out if there is a journal register to demonstrate that it had been attended to, yes this was unfortunate that the delivery was missed, however this was not through a error of mine or Charmaine’s.

I do understand that you are under immense stress however I feel these accusations are unwarranted as I’m doing my best under the circumstances. Please note that I am working as hard as possible for both directors while the company is going through this period.

Kind Regards

Paula Garrard-Talbot”

[149] Having found:

● That Mr Hoad engaged in unreasonable behaviour towards Mrs Taylor;
● That Mr Hoad’s repeated this behaviour on multiple occasions;
● That Mr Hoad’s behaviour was not reasonable management action carried out in a reasonable manner; and
● That Mr Hoad’s behaviour created a risk to her health and safety,

I conclude that Mrs Taylor was bullied within the meaning of the FW Act.

Is there a risk that Mrs Taylor will continue to be bullied at work?

[150] The Commission is only able to make orders to stop bullying as provided for by section 789FF of the FW 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” (section 789FF(1)(b)(ii)).

[151] Mrs Taylor continues to be employed, albeit on light duties. The matrimonial dispute between Mr Hoad and Mrs Hoad remains on foot and remains acrimonious. Both continue to work in the business. Mr Hoad contested this application and, apart from an apology in the witness box for describing Mrs Taylor as a “side-kick” he displayed no regret or remorse for the conduct he engaged in. He denies some of the conduct I have found to have occurred, and considers all other to have been reasonable management action. He has an unreformed view about Mrs Taylor being part of a conspiracy against him and his business and, to date, appears indifferent to the bullying she has experienced and its impact on her.

[152] In these circumstances I conclude that there is a real and present risk that Mrs Taylor will continue to be bullied at work.

Remedy

[153] 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”. 65

[154] 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.” 66

[155] Given my findings and conclusions, I consider it appropriate to make orders by way of remedy, within the statutory framework.

[156] In making these orders I take into account all of the evidence and material before me.

[157] The orders I make are informed by but not necessarily limited to the prior unreasonable conduct which I have found. 67 They are directed at preventing future bullying of the type found to have occurred and variants thereof.

[158] I also have regard to the considerations established by section 789FF(2) of the FW Act and in particular:

● The Improvement Notices issued by Safe Work SA following its investigation in April 2018 (section 789FF(2)(a));
● The consent orders of the Federal Circuit Court of Australia of 21 May 2018 (section 789FF(2)(a)); and
● The employer’s Code of Conduct Policy and the employer’s Equal Opportunity and Anti Bullying Policy and in particular the stated procedure 68 to make, receive and investigate a discrimination or bullying complaint set out in the Equal Opportunity and Anti Bullying Policy (section 789FF(2)(b)).

[159] I do not consider it appropriate to simply make these findings and then leave remedial steps to the employer or to Mr Hoad once having reflected on my findings. Nor do I consider it appropriate to leave the matter to Mrs Taylor to invoke the investigation procedure under the employer’s policy. Neither course would be likely to prevent bullying. Mr Hoad has not displayed a willingness to remediate bullying behaviour even in the face of an application having been filed before the Commission. Given that the employer does not speak on this matter with one voice, invoking a procedure overseen by the employer is likely to result in the very stalemate between Mr and Mrs Hoad that has so frustrated Mrs Taylor and which has prevented a workplace solution being found. In the unusual circumstances of this matter, invoking the employer’s internal procedure is unlikely to have utility and may have the perverse effect of providing a further time frame for bullying conduct to continue.

[160] In making these orders I am cognisant that orders made in this jurisdiction are enforceable by the Courts as a civil remedy provision. 69 This means that the person affected can apply to a Court for an order for a financial penalty against the alleged wrong-doer, or for any other order the Court considers appropriate such as an injunction. Orders should not be made lightly and where they are made, they should be expressed in such a manner that clearly establishes enforceable obligations upon relevant identified parties.70

[161] Mrs Taylor has urged upon me ten orders. I have had regard to each of the orders sought. I consider the orders sought to be directed at the prevention of bullying. I consider that they are directed at relevant subject matters. I will not however make orders in the precise terms sought by Mrs Taylor. I will make orders that I consider have significant utility, are directed at the most serious and present risk of future bullying, and are capable of implementation and enforcement. I also have particular regard to the unique context in which the orders I make are to be implemented; that context being:

● a family business where the husband and wife are co-directors and in the midst of an acrimonious but unresolved matrimonial dispute;
● where Mrs Taylor performs work for the benefit of both the husband and wife and the business as a whole and works in close association with the wife in doing so;
● where the husband opposes orders being made but the wife supports orders being made;
● where the employer is incapable of speaking on this matter with a coherent singular voice and thereby unlikely to implement orders with common purpose or singular intent;
● where, largely by agreement, Mrs Taylor has already removed herself from the workplace, is working from home and is not communicating with Mr Hoad other than by email;
● where Mrs Taylor is working on light duties, is in the care of medical professionals and has her return to work capabilities regularly assessed by her doctors and WorkCover return to work officers; and
● where the future of the business and the ongoing employment of persons in the business (including Mrs Taylor) is uncertain and in part dependant on the manner in which business assets are to be distributed or dealt with by final orders of the Court in the context of a future property settlement between the husband and the wife or Court determination.

[162] This unique combination of considerations leads me to make orders that are directive at specific conduct.

[163] I consider the Orders under five subject matters:

● Discipline and termination;
● Giving direction and reporting;
● Communication and interaction;
● Role and responsibilities; and
● Training and education.

Discipline and termination

[164] I have found that Mr Hoad’s conduct in wrongly alleging unreasonable insubordinate behaviour by Mrs Taylor, seeking to discipline her and issuing formal warnings placing her at risk of termination to have been bullying conduct. There is a real risk that Mr Hoad will continue to take unreasonable management action against Mrs Taylor, and do so in an unreasonable manner either directly or through the agency of third parties such as legal practitioners.

[165] The evidence convinces me that the risk of unreasonable disciplinary behaviour against Mrs Taylor should be removed insofar as possible and that this be done as a matter of some urgency.

[166] I also consider it appropriate for Mr Hoad to be required to immediately take steps to remediate the unreasonable written warnings issued to Mrs Taylor. They were unjustified in substance and in the manner in which they were issued. The evidence is that they have had a profound unsettling effect on Mrs Taylor.

[167] Having regard to the fact that some mechanism needs to be available for Mrs Taylor to be sanctioned should her work performance (objectively assessed) be deficient or should she engage in misconduct warranting dismissal or formal warning, I consider it appropriate to vest Mrs Hoad with this sole authority for the time being. Doing so is consistent with the human resource responsibilities of Mrs Hoad under the Court Order and consistent with her seniority as a director of the company. Although she is aligned to Mrs Taylor, she is more likely than Mr Hoad to do so in a manner that is not bullying, for example by exercising reasonable judgment on such matters and taking action in a reasonable manner.

[168] With respect to disciplinary matters, past warnings and termination I will order:

That, other than Charmaine Joy Hoad, neither William Mark Hoad nor any person acting for William Mark Hoad or operating under his instructions (whether being an external legal practitioner, a manager working in the business or other third party) or acting for the employer is to take any action which:

a) Disciplines, warns or cautions Paula Louise Taylor with respect to her work performance or conduct; or

b) Terminates the employment of Paula Louise Taylor, threatens to terminate her employment or unreasonably induces her to resign from her employment.

That warning letters issued by solicitors of William Mark Hoad to Paula Louise Taylor dated 10 September 2018 and 12 November 2018 be removed by Hoad Water Cartage Pty Ltd from her personnel file, be rendered of no effect and be withdrawn.

That within seven (7) days of the commencement of this Order William Mark Hoad send Paula Louise Taylor under his hand an email informing her that the warning letters of 10 September 2018 and 12 November 2018 have been withdrawn with immediate effect.

Giving direction and reporting

[169] A fundamental issue at the heart of the bullying conduct by Mr Hoad is not simply the manner of Mr Hoad’s interactions with Mrs Taylor but the view he holds that, despite the Court Order, he has a right as Managing Director to direct and instruct Mrs Taylor in all matters relating to her work. In contrast, Mrs Hoad believes that she has the responsibility to provide that direction and instruction at least in the first instance. Mrs Taylor has no clarity around her reporting obligations. The strongly held difference in view between Mr and Mrs Hoad on the meaning of the Court Order has created and continues to create a build-up of tension and uncertainty that has become a fertile ground for bullying conduct.

[170] It is appropriate that orders be made concerning Mrs Taylor’s reporting obligations for that reason, but not that reason alone. I also take into account that since the Court Order and on more than one occasion Mr Hoad’s directions to Mrs Taylor, even if lawful, were unreasonable and communicated in an unreasonable manner.

[171] Conversely, there is no evidence of bullying conduct of Mrs Taylor by Mrs Hoad. An exclusive reporting obligation to Mrs Hoad and a concomitant obligation on Mrs Taylor to exclusively take instruction and direction from Mrs Hoad is reasonable at least as an interim measure and is likely to prevent the risk of future bullying.

[172] I have considered whether a reporting obligation and the power to issue direction and instruction to Mrs Taylor should remain vested in Mr Hoad insofar as an instruction or direction would relate to operational matters only. I have decided against this course for three reasons: firstly, Mr Hoad’s manner of communication and not just the subject matter of his communications with Mrs Taylor has been established to be bullying conduct; secondly, Mr Hoad has misused an ill-defined carve-out in the 21 May 2018 orders to engage in bullying conduct and there is a real risk that any further carve-out would be similarly misused to defeat the purpose of the order; and thirdly, my orders will not prevent Mr Hoad from making reasonable requests of Mrs Taylor on operational matters and her responding to reasonable requests.

[173] I take into account the broadly intended structure agreed by Mr and Mrs Hoad at the time of the Court Order on 21 May 2018, that Mr Hoad be responsible for and have reporting obligations to him from operations staff, and that Mrs Hoad be responsible for and have reporting obligations from finance, administration and human resources staff. This scheme, as an interim arrangement for the business pending resolution of matters between Mr and Mrs Hoad is a reasonable framework but, in practical implementation it has not prevented bullying of Mrs Taylor. Hence, it is appropriate to supplement that structure for the purposes of preventing future risk of bullying. The supplementation I will order is that no carve-out will be provided to Mr Hoad that saves his ill-defined historical authority to instruct or direct Mrs Taylor. The evidence before me is that Mr Hoad has misused the authority vested by that carve-out by issuing unreasonable directions to Mrs Taylor since 21 May 2018 and by doing so in an unreasonable manner. In these circumstances, the order of this Commission will, in respect of Mrs Taylor’s future work and reporting obligations, be consistent with but narrower than paragraph 2.5 of the Court Order.

[174] I am conscious that orders concerning reporting, particularly if they restrict the authority of Mr Hoad to direct Mrs Taylor, may to a limited degree add an element of inefficiency to private business operations. Where this is a necessary consequence of an anti-bullying order of this kind, it is the product of the exercise of a statutory jurisdiction. Such consequences must be said to have been within the contemplation of the parliament when enacting the jurisdiction, otherwise the power to make preventative orders would not have been provided for. Such consequences are however one reason why orders in this jurisdiction should not be made lightly.

[175] This consequence in the context of the operations of Hoad Water Cartage should not be overstated. A Court Order already injuncts Mr Hoad from instructing or directing Mrs Taylor, at least in certain respects. Further, my orders will not prevent Mr Hoad from making reasonable requests of Mrs Taylor, including the provision of information or documentation or follow-up on specified matters. They will simply be directed at preventing the issue of an instruction or direction by Mr Hoad. Mrs Taylor will be required to adhere to her common law duty to comply with reasonable requests of her employer, but will be able to respond to Mr Hoad’s requests either directly or through the agency of Mrs Hoad. This will avoid Mrs Taylor being forced to expose herself to direct communication with Mr Hoad if she does not feel capable of doing so.

[176] Further, given that the evidence before me establishes that Mr Hoad has been willing to use the agency of others to intimidate Mrs Taylor, the orders I make will be directed at Mr Hoad acting directly or through an external agent.

[177] With respect to direction and reporting I will order:

That Paula Louise Taylor in her capacity as Manager of Finance and Administration of Hoad Water Cartage Pty Ltd report to and take direction from Charmaine Joy Hoad on finance and administrative matters (including finance and payroll relating to operational staff).

That Paula Louise Taylor in her capacity as Human Resources Manager of Hoad Water Cartage Pty Ltd report to and take direction from Charmaine Joy Hoad on human resources matters (including administrative, finance and operational staff).

That, irrespective of whether direction or instruction on such matters is or has been previously provided or authorised, William Mark Hoad neither directly nor through an external agent acting on his behalf further instructs or directs Paula Louise Taylor with respect to the performance of her work duties. This Order does not prevent William Mark Hoad from making reasonable requests of Paula Louise Taylor with respect to her work duties insofar as they concern the operation of the business. Should such a request be received, Paula Louise Taylor may communicate directly with William Mark Hoad or may alternatively refer the request to Charmaine Joy Hoad or respond to the request through the agency of Charmaine Joy Hoad.

Communication and interaction

[178] An equally fundamental issue at the heart of the bullying conduct by Mr Hoad is the manner of Mr Hoad’s interactions with Mrs Taylor. I have found the manner of Mr Hoad’s communication on repeated albeit not all occasions to be bullying conduct. This conduct has progressively worsened over the past twelve months since the matrimonial dispute between Mr and Mrs Hoad.

[179] It is appropriate to make orders concerning the method of communication and interaction between Mr Hoad and Mrs Taylor, at least in this interim period when matters between Mr and Mrs Hoad remain unresolved.

[180] To a certain degree Mr Hoad and Mrs Taylor have put distance between themselves and restricted the medium through which they communicate in order to manage their relationship. That has been sensible, but has not been sufficient to prevent bullying conduct. I will make orders that give effect to the informal arrangements currently in place, but which also seek to prevent bullying in the forms it has continued to manifest even with those informal arrangements in place. It is regrettable that the Commission is put in a position where this is required. It is regrettable that orders are made requiring adult persons to act civilly in their communication as employer to employee and as business owner to manger. Yet that is what is required in these circumstances.

[181] With respect to communication and interaction I will order:

That, on matters relating to her work for the business, William Mark Hoad communicate only with Paula Louise Taylor by email except where otherwise agreed or as required by law.

That William Mark Hoad provide no instruction to his solicitors (or other person not employed in the business) to communicate on his behalf with Paula Louise Taylor on matters relating to her work for the business.

That William Mark Hoad not communicate with Paula Louise Taylor on personal matters or matters relating to the matrimonial dispute between he and Charmaine Joy Hoad and shall limit such communication to matters relating to the business.

That communication by William Mark Hoad with Paula Louise Taylor be professional, respectful and business-like and not be abusive, rude or harassing and in particular such communication not refer to Paula Taylor as a “side-kick”, part of a “girl’s club” or “girlfriend’s club” or accuse her of “wasting my time” or being part of a “conspiracy with the wife” or signing off emails with words to the effect “with regrets again”.

That communication by Paula Louise Taylor with William Mark Hoad be professional, respectful and business-like and not concern personal matters or matters relating to the matrimonial dispute between he and Charmaine Joy Hoad.

That William Mark Hoad not denigrate or disparage Paula Louise Taylor to any owner, manager, employee, customer, supplier or other third party of the business whilst Paula Taylor performs work for the business.

That William Mark Hoad not require Paula Louise Taylor to enter the property from where the business is conducted but that this Order not preclude Paula Louise Taylor from entering the property should she be required to do so to give effect to her work duties.

Role and responsibilities

[182] The evidence before me is that Mrs Taylor is Manager of Finance and Administration and as Human Resources Manager of Hoad Water Cartage. I have concluded on the evidence before me is that Mr Hoad has, from time to time (but not always) engaged in exclusionary behaviour which has restricted Mrs Taylor from performing her full range of duties including interaction with operations staff where it has been necessary for her to do so, and that this has been bullying conduct.

[183] I consider it appropriate in these circumstances to make orders to prevent the risk of this bullying occurring in the future. There is no objective reason why Mrs Taylor should not be permitted to perform her full range of duties for which she was employed, subject to doing so in a satisfactory manner and being medially capable of doing so within her designated hours of work. In particular, given my findings concerning bullying emanating from in part a workplace culture, it is necessary to order that Mrs Taylor not be restricted or limited from communicating with any manager, employee, customer, supplier or other third party of the business (including drivers) should it be necessary for her to do so in the performance of her work duties.

[184] I do not consider it necessary to make orders varying the existing scope of the job description of Manager of Finance and Administration and Human Resources Manager. I do so for two reasons. Firstly, whilst Mrs Taylor is apprehensive that her role in both respects is not being fully respected, the bullying conduct does not relate to inadequacy with the job descriptions per se, but rather the conduct of Mr Hoad in arbitrarily or inconsistently exhibiting exclusionary behaviour. Secondly, the orders I will make concerning direction and reporting are intended to provide clarity that will prevent future bullying concerning all work performed within the job descriptions. There is greater utility in making those orders than in varying the job descriptions.

[185] Further, given that Mrs Taylor is currently on light duties, it would be likely that some of her duties (such as payroll) will be given higher priority than others. That level of detail is a matter best dealt with at the workplace level (between Mrs Taylor and Mrs Hoad in the first instance) rather than be the subject of Commission orders.

[186] With respect to Mrs Taylor’s role and responsibilities I will order:

That Paula Louise Taylor be allowed by the employer and by William Mark Hoad to perform, to the extent that her working hours and medical capacity permit, the full range of duties of Manager of Finance and Administration and of Human Resources Manager of Hoad Water Cartage Pty Ltd.

That William Mark Hoad not restrict or limit Paula Louise Taylor from communicating with any manager, employee, customer, supplier or other third party of the business (including drivers) should it be necessary for her to do so in the performance of her work duties.

Training and Education

[187] It is not uncommon when orders are made in the Commission’s anti-bullying jurisdiction for orders to include matters concerning the provision of training on anti-bullying and workplace harassment and on the making or updating of policies or procedures on such matters.

[188] I have considered whether there is utility in making orders to this effect. In particular I have considered whether to order that Mr Hoad, Mrs Hoad or other employees or officers of the employer undertake a course or courses of training in anti-bullying conduct, on the impact of bullying on individuals or on discrimination and harassment.

[189] In the unusual circumstances of this matter, although the seriousness of the bullying conduct warrants remediation, I am not convinced that there is sufficient practical utility in such an order. In a family business whose owners are in dispute and where the future ownership and structure is uncertain there is little value in training if training is not likely to result in behavioural change. The bitter and acrimonious matrimonial dispute between Mr and Mrs Hoad, which has created an environment of tension and contributed to the bullying behaviour, is not conducive to such training being a productive investment, at least at this point in time. I also take into account that the future of persons who may be trained is in flux given the uncertainty over the outcome of the distribution of jointly held business assets and who will work for whom in what businesses. I also have regard to the fact that the employer is unlikely to have a common purpose in either the training or remediating workplace culture subsequent to the training.

[190] I also take into account that the Improvement Notices issued by Safe Work SA were directed at training, and that the steps taken in light of these Notices were not sufficient to prevent further bullying of Mrs Taylor.

[191] Given the absence of sufficient practical utility in the context of this matter, and given the greater utility to prevent bullying via the other orders I will make, I will issue no orders concerning training and education.

Other matters

[192] Although Mrs Taylor indicated that she has tried to limit knowledge that she is on WorkCover for fear of being seen as weak or ostracised, no party before me has applied to anonymise or restrict the publication of this decision or orders.

[193] I am conscious that a decision of this nature discloses inner workings and conflict within a private business. I am also conscious that it largely focuses on two persons, Mrs Taylor and Mr Hoad. It necessarily does so, given that Mrs Taylor has made this application and given that Mr Hoad is the person named in her application. There may be other persons with views on this matter, but none other than Mrs Taylor, Mr Hoad and Mrs Hoad have come before me or been called by persons before me to give evidence. I have however not unnecessarily expanded in this decision on matters of a personal nature nor identified other persons in the narrative of events except where it has been necessary to do so. I see no public interest in the identification of Mr A and Mr B, or Ms C. I have anonymised their names in this decision.

[194] This is a decision of the Commission. Consistent with the principles of transparency and open justice 71 it is to be published.

[195] In terms of operative date, I have considered both practicality and the need for appropriate immediacy lest Mrs Taylor be subjected to further bullying conduct. In these circumstances I will order that:

● the order concerning the withdrawal of past warning notices issued to Mrs Taylor and concerning the prohibition on Mr Hoad or an agent on his behalf disciplining or terminating the employment of Mrs Taylor will have immediate effect from the date and time of publication of this decision; and

● the other orders will have effect seven (7) days from the date of publication of this decision.

Conclusion

[196] I conclude that Paula Taylor was bullied at work by William Mark Hoad within the meaning of the FW Act.

[197] I conclude that there is a risk that Paula Taylor will continue to be bullied by William Mark Hoad at work.

[198] I conclude that it is appropriate to make orders to prevent bullying at work of Paula Taylor. I do so in the terms of the published Order.

[199] I conclude that it is appropriate to publish this decision and the Order made and hereby do so.

DEPUTY PRESIDENT

Appearances:

P. Taylor, on her own behalf

W. M. Hoad, on his own behalf

C. Hoad, on her own behalf

Hearing details:

2019.

Adelaide.

18 and 21 February.

Printed by authority of the Commonwealth Government Printer

<PR705993>

 1   Application filed 11 September 2018

 2   AB2018/537

 3   Directions, 27 September 2018

 4   The status of Mrs Hoad’s application is at issue in separate proceedings conducted on 15 February 2019

 5   Directions, 25 January 2019 at [17]

 6   I conducted a jurisdictional hearing on Mrs Hoad’s application on 15 February 2019, at which time a decision was reserved

 7   Pearse v Viva Energy Refining Pty Ltd [2017] FWCFB 4701 at [14]. See also section 591 of the FW Act and King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, 17 March 2000) Print S4213 at [61] - [62]; Enterprise Flexibility Agreement Test Case (Print M0464) at page 13; Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 509

 8   Mr Hoad Written Submission 8 February 2019 (by email 8.2.2019 4.02pm)

 9   Audio transcript 18 February 2019 at 10.27am

 10   Exhibit MH1 Order of Federal Circuit Court 21 May 2018 in file number ADC1438/2018 paragraph 2.2

 11   Exhibit MH1 Order of Federal Circuit Court 21 May 2018 paragraph 2.5

 12   This decision anonymises the identity of Ms C. The parties are aware of her identity. It is the person referred to in paragraph 2 page 6 of Exhibit A6

 13   This decision anonymises the identity of Mr A. The parties are aware of his identity. It is the person referred to in paragraph 6 page 1 of Exhibit A6

 14   This decision anonymises the identity of Mr B. The parties are aware of his identity. It is the person referred to in paragraph 5 page 2 of Exhibit A6

 15   A10

 16   A6 Taylor Statement page 3

 17   A6 Taylor Statement page 4

 18   A6 Taylor Statement Attachment I

 19   MH1. Paragraphs 2.1, 2.2 and 2.4.1 have anonymised the identity of Mr B and Ms C for the purposes of this Decision

 20   MH2 Affidavit of Mark Hoad 13.9.2018 paragraph 7

 21   A6 Taylor Statement Attachment H; MH2 Attachment WMH1

 22   A4

 23   A6 Taylor Statement Attachment D page 1

 24   A6 Taylor Statement Attachment D page 2

 25   A6 Taylor Statement Attachment F

 26   A6 Taylor Statement Attachment F

 27   A4

 28   A8 page 5

 29   Section 789FD(2) FW Act

 30   F1 Application to Dismiss 8.2.2019 paragraph 2.2 at (3)

 31   F1 Application to Dismiss 8.2.2019 paragraph 2.2 at (6) and ((7)

 32   MH2

 33   CH3 Email 11 August 2016

 34   A1 page 2 phone conversation 2 March 2018

 35   Audio transcript Mr Hoad evidence 21 February 2019 11.15am

 36   F73 in AB2018/537 at paragraph 2.2

 37   A7 Email Mark Hoad to Paula and Charmaine 7 April 2018 8.35am

 38   A7 Email Mark Hoad to Paula and Charmaine 7 April 2018 8.35am

 39   A7 Email Mark Hoad to Paula and Charmaine 7 April 2018 8.35am

 40   For example, A7 Email Mark Hoad to Paula and Charmaine 7 April 2018 8.35am

 41   A8 Email Mark Hoad to Paula and Charmaine Hoad cc [Ms C] 2 May 2018 4.45pm

 42   A9 Email Mark Hoad to Paula and Charmaine Hoad 6 June 2018 1.53pm

 43   A6 Taylor Statement Attachment B Email Optiblue to Paula 11 June 2018 4.54pm

 44   A6 Taylor Statement Attachment B Email Mark Hoad to Charmaine; Paula 6 June 2018 1.52pm

 45   A6 Taylor Statement Attachment B Email Mark Hoad to Charmaine; Paula 16 April 2018 10.34am

 46   A6 Taylor Statement Attachment C Email Mark Hoad to [Ms C]; Paula; Charmaine 5 August 2018 9.22am

 47   A6 Taylor Statement Attachment C Email Mark Hoad to Paula 22 August 2018 8.45am

 48   A9

 49   A11 10 November 2018

 50   A1 page 2

 51   A1 page 4

 52   A2 Email 30 August 2018 9.32am

 53   A6 Taylor Statement Attachment B Email 8 June 2018 12.01pm

 54   Audio transcript Mr Hoad evidence 21 February 2019 10.45am

 55   A1 page 3 telephone conversation Mr Hoad and Mrs Taylor 22 March 2018

 56   A3 page 3 Email 21 August 2018 10.35am

 57   A6 Taylor Statement Attachment B page 1

 58   Audio transcript Mr Hoad evidence 21 February 2019 10.23am

 59   Audio transcript Mr Hoad evidence 21 February 2019 10.26am

 60   A10 page 10

 61   A10 page 24

 62   Audio transcript Mr Hoad evidence 21 February 2019 10.38am

 63   A9 page 2

 64   A6 Attachment 7

 65   Section 789FF(1) FW Act

 66   Section 789FF(2) FW Act

 67   Appeal by Churches and Others [2016] FWCFB 2367 at [32]

 68   A10 pages 26 - 28

 69   Section 789FG FW Act

 70   Application by LP [2016] FWC 763 at [25]

 71   Mac v Bank of Queensland and Others [2015] FWC 774 at [6] to [7]; United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board [2017] FWCFB 2500 at [32] to [34]