[2019] FWC 4463

The attached document wholly replaces the document previously issued with the code [2019] FWC 4454 on 26 June 2019 to correct document referencing.

Associate to Deputy President Masson

27 June 2019.

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

LM
(AB2018/797)

Application for an FWC order to stop bullying – applicant alleges manager engaged in repeated unreasonable behaviour over several months – considered whether some of the behaviour constituted reasonable management action carried out in reasonable manner - no basis to make order – application dismissed.

Introduction

[1] LM (the Applicant) made an application for orders to stop bullying pursuant to s 789FC of the Fair Work Act 2009 (the Act) on 24 December 2018 (the Application). The Applicant alleges that he has been bullied at work during his employment with “A” Pty Ltd (A P/L) by Ms MC (MC) who is his manager. A P/L provides business and employment services across Australia directed to supporting people find employment or start their own businesses.

[2] At the time of the alleged bullying incidents, the Applicant was employed by A P/L at its Collingwood office as a National Enterprise Incentive Scheme (NEIS) Consultant. The Collingwood office staffing of A P/L at the time of the Application comprised the Applicant, his former colleague Mr WV (WV) and their manger MC. The Applicant alleges in his Form F72 application, that he has been exposed to bullying by MC through a series of incidents over a four month period which are summarised as follows:

(1) MC alleged to have inappropriately discussed other staff in front of the Applicant and WV. (Allegation 1- Inappropriate Staff Discussions)

(2) MC alleged to have cautioned the Applicant’s colleague WV following an interaction of WV with staff of a coffee shop close to AP/L’s Collingwood office. (Allegation 2 - 2 Birds Café Incident).

(3) MC alleged to have given a direction to the Applicant and WV not to take phone calls while with clients (Allegation 3 – Phone Call Direction).

(4) MC alleged to have made comments to the Applicant regarding WV’s desk being untidy, having confidential documents on it and as a consequence being in breach of privacy requirements (Allegation 4 – Privacy Breach Incident).

(5) A P/L alleged to have failed to respond to or answer a question raised by the Applicant as to whether a record had been made or retained on the Applicant’s personal file, in relation to a complaint made by a client in respect of the Applicant and WV. (Allegation 5 – Personal File Request).

(6) Intimidating or aggressive conduct engaged in by MC with the Applicant and WV in relation to arranging and conducting a meeting to discuss a client complaint on 15 November 2018 (Allegation 6 – Client Complaint Meeting).

(7) MC claimed to have directed WV shortly after commencing in her role that he was not to tell “dad jokes” during training. The Applicant claims such instruction didn’t occur to his knowledge (Allegation 7 – Dad Joke Direction).

(8) MC alleged to have given directions to the Applicant and WV in respect of their out of hours conduct following a social event at which the Applicant, WV and MC attended (Allegation 8 – Social Event Incident).

(9) MC alleged to have inappropriately touched LM’s shoulder during a discussion in the Abbottsford office (Allegation 9 – Shoulder Touching Incident).

[3] A conference of the parties was conducted before the Commission on 25 January 2019 but failed to resolve the matter. The Applicant saw no utility in further conciliation and sought the formal determination of the application. Directions were subsequently issued for the filing of submissions and materials and the matter was set down for a hearing on 29 and 30 April 2019.

[4] The hearing of the Application was conducted concurrently with the hearing of a related anti-bullying application by WV which dealt with substantially the same allegations against MC. That latter application by WV was subsequently dismissed pursuant to s 587 of the Act but evidence adduced in relation to WV’s application has necessarily been considered as part of my determination of the Application.

[5] At the hearing, the Applicant represented himself and gave sworn evidence. Evidence was also given in support of the Applicant by;

•  WV – former NEIS Consultant with A P/L and colleague of the Applicant;

•  Ms JL (JL) - an employment consultant of B P/L, a company that previously shared offices with A P/L in Abbottsford, Victoria;

•  Mr GG (GG) – Training Manager with a Registered Training Organisation (RTO) that accredits and supports A P/L in the delivery of training courses.

[6] A P/L was represented at the hearing by Mr DP (DP) who is their Senior HR Manager. Evidence was called from the following witnesses;

•  MC – A P/L’s Regional Manager for Victoria and Southern Tasmania

•  Ms BM (BM) – A P/L’s National Operations Manager

•  Mr AM (AM) – A P/L’s Human Resources Business Partner

[7] In the normal course, the interests of open justice mean that decisions of the Commission will generally identify all parties. In all of the particular circumstances of this matter, I have “de-identified” the names of the parties and individuals in this decision. My reasons for doing this include the nature of some of the matters considered in this application. Further, the identification of the workplace would also tend to identify the applicant and other individuals concerned. I also note that this matter has been heard in a private hearing and all parties either supported, or did not oppose, the issuing of a decision in this form.

Background and Evidence

[8] Before turning to consider the evidence regarding the specific allegations made by the Applicant regarding MC’s conduct, it is useful to provide some background which is as follows.

[9] The Applicant has been employed in his current role as an NEIS Consultant since November 2016. In that role he is required to support delivery of the NEIS program which provides training and business set-up mentoring assistance to job seekers who are interested in starting and running a small business. In his role he reports to MC who commenced as the Regional Manager for Victoria and Southern Tasmania for A P/L on 15 July 2018.

[10] On MC’s commencement as the Manager with A P/L in July 2018, the Applicant, WV and MC were located in A P/L’s Abbotsford office which A P/L shared with B P/L, an unrelated company. On or about 1 October 2018 A P/L moved from the Abbottsford office to a new office location in Collingwood of which A P/L was the sole tenant.

[11] According to the Applicant, prior to MC’s commencement as Manager in July 2018, he worked well with his prior Manager who left the organisation in May 2018. There were, according to the Applicant and WV, no issues ever raised with the Applicant by the previous Manager regarding his performance or the manner in which he performed his duties. 1

[12] The Applicant states that following MC’s commencement in July 2018 there were a number of small incidents relating to MC’s behaviour which appeared strange to him and WV. The conversations and comments attributed by the Applicant and WV to MC, which caused them concern variously included; open criticism of the Applicant’s colleagues, 2 the constant telling of stories that had a theme of highlighting MC’s superiority,3 bizarre stories including MC’s dating experiences,4 criticisms of training MC received on commencement in her role5 and queries by MC regarding the manner in which colleagues of the Applicant and WV completed spreadsheets.6 The Applicant also states that MC “seemed to want to establish her dominance which only created a toxic environment to work in.”7

[13] MC states that she was, due to the claimed lack of specificity of the allegations, unsure of the strange behaviour or bizarre stories that the Applicant and WV refer to in their evidence. 8 She did however concede having told the Applicant and WV one story regarding an ill-fated dating experience9 and also that the training she received on her commencement was inadequate.10 As regards to the claim of her having criticised colleagues, she states that over the months that she worked with the Applicant and WV she felt that she had established a good relationship with both men, and that at times she was just “venting” rather than criticising colleagues.11 MC denied the claim that that she sought to establish her dominance and felt that up until when the Applicant ceased working in the office in December 2018, that “there was much good humour in the office, friendly banter between all of us and they appeared to be very happy – it was hardly a toxic environment.”12

[14] According to the Applicant there was a dramatic change in MC’s behaviour following the move of the office to the new location in Collingwood in early October 2019. The Applicant believed that this change was because MC was no longer constrained in her behaviour by the shared office arrangements that had existed prior to the move. 13 A number of specific alleged incidents, that are the subject of specific allegations considered below, appeared to come to a head following a complaint made by a client of A P/L on or about 14 November 2018 in respect to the conduct and behaviour of the Applicant and WV.

[15] MC states that in mid November 2018 a female client made a formal complaint against both the Applicant and WV. In the complaint the client described the Applicant and WV as “smelly old men, racist and sexist”. According to MC she subsequently rang the complainant and during an hour long conversation, received a long list of complaints regarding the Applicant and WV. The complaints variously included, that WV told racist and sexist jokes; that the complainant had been kept waiting by the Applicant at his desk, while he arranged parking for a guest speaker and also took phone calls; and that she felt that WV manipulated the clients to be competitive. 14 Following her having received the complaint and after having spoken to the complainant, MC arranged a meeting with the Applicant and WV on 15 November 2018 to discuss the complaints.

[16] During the course of the meeting on the 15 November 2018 MC advised the Applicant and WV that she had dismissed all but three of the complaints raised by the client. Those three remaining matters were that of WV telling “dad jokes” in training sessions, the Applicant talking too loudly and also taking phone calls during meetings with clients. The matters raised by MC with the Applicant and WV were not, according to MC, raised as disciplinary matters and it was made clear to both men that no record would be placed on their personal files. 15

[17] There is some contest between MC, the Applicant and WV as to the background to the complaint and the manner in which the meeting of 15 November 2018 was arranged and conducted. Notwithstanding that conflict of evidence, of which I will shortly deal with in considering Allegation 6, it is uncontroversial that the outcome of the meeting was that WV was asked not to tell jokes during client training sessions or meetings, that the Applicant was asked not to speak so loudly and that the Applicant and WV were advised that they should not take phone calls while in meetings with clients. 16

[18] Following the meeting held on 15 November 2019, MC was concerned that both the Applicant and MC remained upset at the complaints and outcome. MC described the behaviour of the Applicant and WV in the days following their 15 November 2018 meeting as surly and abrupt in their communication with her. 17 In subsequent discussions with the National Operations Manager BM, it was agreed to arrange a further meeting on 28 November 2018 involving MC, BM, WV and the Applicant.

[19] The meeting conducted on 28 November 2018 was conducted by telephone with MC, WV and the Applicant in the Collingwood office while BM was in Sydney. BM reinforced the outcomes of the earlier meeting of 15 November 2018. The Applicant remained concerned along with WV, that there may be an adverse record placed on their personal file arising out of the client complaint of 14 November 2018. 18 BM states that she advised both the Applicant and WV during the meeting on 28 November 2018, that nothing would be recorded on their personal files arising from the client complaints.19

[20] Following the 28 November 2018 meeting MC sent an email to the Applicant and WV in the following terms;

“Hello (names redacted),

Further to our conversation with (name redacted) in that we discussed that whilst you may think the jokes are innocent kid’s jokes the client’s perception is the crucial factor. Many clients who may be offended will not say so however we have a written complaint and it is important to realise that others may feel the same way.

Furthermore, it is important that clients feel their privacy is protected

Therefore I ask that you:

(1) Refrain from telling jokes both in class and to clients

(2) Moderate your voices so they are not loud

(3) Refrain from answering the phone while you have clients with you.” 20

[21] On 5 December 2018 WV and the Applicant sent correspondence to A P/L’s Head of People, Performance and Culture in which they made several complaints regarding MC. 21 Following receipt of that correspondence, AM was instructed to undertake an investigation of the allegations which were in substantially the same terms as those pressed by the Applicant in this matter. AM separately interviewed the Applicant and WV by telephone on 7 December 2018, and completed his report on 21 December 2018.22 Due to the Christmas period the completed Report was not provided to the Applicant until early in the New Year.

[22] The Report relevantly concluded as follows;

(a) Although many of the events could be substantiated, the subsequent complaints following could not be substantiated.

……….

(b) The evidence does not demonstrate that MC or BM demonstrated bullying, intimidating or unreasonable behaviour throughout this process as defined under the Fair Work Act (Cth) 2009.

(c) Although some of the events were substantiated or partially substantiated, upon further investigation and context, MC’s actions were considered reasonable within her role as their manager.

………….” 23

[23] The Applicant ceased work on 7 December 2019 and has not returned to the office since. A subsequent workers compensation claim filed by the Applicant on 3 January 2019 was declined by A P/L’s insurer on 31 January 2019. The Application for workers compensation identified the date of injury as 15 November 2018. 24

[24] I now turn to consider the specific allegations made regarding MC’s conduct towards the Applicant.

Allegation 1- Inappropriate Staff Discussions

[25] The Applicant states that MC regularly spoke openly and critically of colleagues of the Applicant who worked in other offices of A P/L. 25 In doing so it was claimed by the Applicant and WV that the conduct was a breach of privacy, was inappropriate, showed a lack of discretion, was intimidating and unprofessional. The allegation was a general one and only one staff member who was the subject of such discussion was specifically referred to in the evidence of the Applicant, that being a staff member in the Ringwood office.26

[26] MC concedes in her evidence that she confided in the Applicant and WV in respect of a particularly difficult consultant who worked in A P/L’s Ringwood office. She further states that following a particular meeting with that consultant and on returning to the Collingwood office, she was exhausted and disclosed her frustration with that consultant to the Applicant and WV. She did so she says because of the relationship she had built up over time with the Applicant and WV, and that her comments were a means of venting rather than criticising another staff member. 27 MC also states that she subsequently disclosed to her Operations Manager and HR the nature of the conversation she had with the Applicant and WV regarding the “difficult consultant.”28

Allegation 2 - 2 Birds Café Incident

[27] This allegation relates to an incident that occurred shortly after the move of A P/L to the Collingwood office. MC states that the incident occurred on the first day after the office move as she recalled that she, WV and the Applicant had to seek directions from a local person as to where they could get a coffee. They were directed to a nearby café called the 2 Birds Café 29 to which they then walked to.

[28] It was stated by MC that on departure from the 2 Birds Café after having purchased a coffee, she had reason to speak with WV regarding the manner in which he addressed a young female who served MC, WV and the Applicant at 2 Birds Café. She states that WV addressed the young female in her native language and referred to her as “beautiful”, which appeared to MC to make both the young female uncomfortable and the adjacent barista annoyed. 30 Contrary to the evidence of the Applicant and WV, MC states that she did not direct WV to not use a foreign language. Rather, after leaving the shop MC states that she cautioned WV about being careful about calling a young girl “beautiful”, given he was a 60 year old male and how his using such a term might be misinterpreted.31

[29] Both the Applicant and WV rejected MC’s evidence that the incident took place immediately after the office move, and both referred to training that the Applicant was undertaking at that time, which meant the Applicant had not yet started in the Collingwood office in that first week of October. 32 The tenor of this line of evidence was that by the time the alleged incident did take place, WV had established a sufficient rapport with the staff of the 2 Birds Café such that his use of the term “beautiful”, in addressing the young lady, could not have caused offence. Furthermore, according to the Applicant, the staff of the 2 Birds Café found WV’s attempts to speak in their language highly amusing.33 In any event, the Applicant concedes that the incident occurred in the first week or so after the move of A P/L to the Collingwood office.34

[30] The Applicant went on to state that while MC’s cautionary words were directed to WV, the Applicant was upset by those comments because as a first generation Australian he had experienced first-hand prejudice and racism directed at himself. He consequently found MC’s comments insensitive and racist. The Applicant questioned MC’s rights to caution WV as she did. 35 MC rejected the Applicant’s characterisation of her comments to WV as racist or that she was speaking badly of immigrants.36

Allegation 3 – Phone Call Direction

[31] This allegation arose out of the client complaints referred to above at paragraph [15] – [20]. As detailed above, the circumstances that led to the complaint included that the Applicant took phone calls during a meeting with a client which provoked, in part, a subsequent complaint regarding the Applicant and WV’s behaviour. The Applicant now concedes that A P/L’s subsequent direction to both him and WV to not take phone calls while in meetings was not unreasonable. Rather, it is his contention that the manner in which the client complaint was raised and addressed with the Applicant and WV on 15 November 2018 and subsequently, constituted bullying conduct. I will consider this as part of Allegation 6 below.

Allegation 4 – Privacy Breach Incident

[32] The Applicant states that both he and WV were spoken to by MC in relation to client files being left on their desks, but in the Applicant’s case the complaint was made by MC on the 16 November 2018 to the Applicant in respect of WV who was absent on an RDO on that day. He further states that while he and WV work in an open office environment and that clients do walk in from time to time, it is not possible to work on client files without having the files on their desks. He also referred to a reduced risk of privacy breaches following the relocation of A P/L from the Abbottsford to Collingwood offices, this being due to less pedestrian traffic in the Collingwood office. He also states that at one point in November 2018 MC “had a go” at WV about client files, and that he (the Applicant) could not understand the “context of her aggression.” 37

[33] MC states that on 16 November 2018, the day on which WV was absent on an RDO, she packed away WV’s files with the Applicant. She denied having “had a go” at WV and states that she merely asked him to put away the client files to protect client privacy, having previously spoken to WV regarding client files being left on his desk. She also disagreed with the Applicant’s description of the Collingwood office as providing less risk of privacy breaches, and referred to the location of the desks close to the front door in that office which made it more likely that a file left on a desk might be seen by a client. 38

Allegation 5 – Personal File Request

[34] The Applicant alleges that in the meeting of 28 November 2018 held to discuss the client complaints, he asked BM and MC what he and WV had done wrong. He states that during the meeting he asked that if they had done nothing wrong then written confirmation should be provided, stating that the allegations that were raised in the client complaint had been dismissed. The Applicant states that BM did not respond to his request for such confirmation. 39 The Applicant and WV also raised concerns as to the process followed by MC and BM in dealing with the client complaints, and whether it had been handled in accordance with company disciplinary policy.

[35] BM states that the complaints raised in their original form were potentially serious for the organisation. 40 However, she confirmed to the Applicant and WV during the meeting of 28 November 2019 that there was nothing recorded on their files arising from those client complaints.⁴¹ MC also states that both the Applicant and WV were advised during the meeting of 28 November 2018, that there was no reason for a record of the complaints to go on their personal files and that no record would be made. She further states that despite the Applicant claiming that a record of the complaint would be retained by the Department of Jobs and Small Business Complaints Register, she did not advise the Registered Training Organisation (RTO), with which A P/L worked, of the complaint as she believed she was not required to.

[36] The obligation of A P/L to advise the RTO of a client complaint was the subject of some evidence from GG, the RTO’s National Training Manager, who confirmed that notification of a client complaint to the RTO was required in circumstances where the complaint came from a client participating in an RTO accredited program. 42 He also confirmed that reporting of a complaint would also depend on whether it related to the RTO’s compliance, or whether it was a matter just for A P/L and was in respect of an NEIS benefit.43 No evidence was adduced that would establish that the client complaint was of such a nature as to require notification to the RTO.

Allegation 6 – Client Complaint Meeting

[37] This allegation relates to the manner in which the meeting held on 15 November 2018 was arranged and conducted by MC. Both the Applicant and WV now concede that the matters specifically raised and discussed were not the issue, that of the dad jokes, the taking of phone calls in the presence of clients and speaking too loudly. Rather it was the manner in which MC raised those matters that was of concern and which constituted bullying.

[38] The Applicant states that following the receipt of the client complaint on the 14 November 2018, the meeting held on 15 November 2018 was arranged at short notice by MC and extended beyond normal working hours, which he and WV claim belies MC’s statements that the matters raised were not raised in a disciplinary context. The Applicant further states that MC commenced the meeting in an aggressive manner towards WV, which left both the Applicant and WV in a state of shock. The Applicant also states that at the end of the meeting he felt confused and unsupported.

[39] For his part WV states that MC’s approach in the meeting made it feel like an interrogation and that MC was aggressive at the start of the meeting. He acknowledged however, that through the course of the meeting MC “took on board what we had said about the allegations made”, and that after he and the Applicant had explained everything to MC she advised them there was nothing to answer. 44 The Applicant also states that despite requests to MC, documentation of the various allegations made against the Applicant and WV was not provided to them.45

[40] MC states that on receipt of the complaint on 14 November 2018 she discussed it with the Applicant who acknowledged to MC that it (the complaint) could escalate 46, following which they sat down and drafted a response to the complainant. The response to the complainant provoked further emails from the complainant and a phone call from MC to the complainant. MC states that both the Applicant and WV were in possession of various emails from the complainant, so they were well aware of the detail of the complaints made.47 None of the emails exchanged with the complainant that were referred to by the Applicant and MC were adduced in evidence.

[41] MC further states that because she had received a written complaint it was necessary to discuss the complaints with the Applicant and WV. She consequently arranged a meeting with the Applicant and WV for the afternoon of 15 November 2018, the reason for that day being that WV was on an RDO the following day. While a number of complaints were made, most were in MC’s view not valid and were dismissed. 48 She advised the Applicant and MC of this during the meeting and also that only three of the issues raised were valid.49

[42] As regards the conduct of the meeting on 15 November 2018, MC gave evidence in strong contrast to that of the Applicant and WV. She flatly rejected the Applicant and WV’s claim that she had commenced the meeting aggressively. 50 MC states that in actual fact WV became extremely aggressive after she raised the issue of dad jokes with him, the result being he “leapt up” from his chair and proceeded to pace back and forwards around the meeting room while variously shouting at MC that he would be getting a lawyer, that the client had no right to complain about him and that MC’s action in calling him to the meeting led him to feel unsupported by A P/L. According to MC the Applicant also shouted a demand to know what was going on their records. She states that WV “vented” for half an hour and then both men angrily walked out.51 This she said was despite her having dismissed all of the issues raised in the complaint with the exception of the three matters, that of WV’s dad jokes, the taking of phone calls in the presence of clients and the Applicant speaking too loudly.

Allegation 7 – Dad Joke Direction

[43] The essence of the allegation is that during the meeting of 28 November 2018, and in the context of a direction from BM to WV to not tell jokes during training courses, MC is alleged to have interjected to state that she had previously told WV in her first month of employment not to tell dad jokes. The Applicant states that MC’s claim to have given such an instruction to WV sat uneasily with her having only recently participated in a client feedback session, where specific feedback was given by clients in relation to WV’s use of dad jokes. 52 He further states that WV advised him immediately after the meeting on 28 November 2018 that MC’s claim was a blatant lie.53 WV also gave evidence that no such instruction had been given to him by MC in her first month of employment.54

[44] MC states that in her first month of employment with A P/L she raised the issue of dad jokes with WV and that he should be mindful of the impact such jokes may have. She denied it was a directive but more a comment in passing. 55 She also gave evidence confirming the conduct of the client feedback session during which the issue of WV’s jokes was canvassed with clients.56

Allegation 8 – Social Event Incident

[45] This allegation relates to MC having cautioned the Applicant and WV in the wake of MC, the Applicant and WV having attended a dinner at the Terminus Hotel with employees of B P/L on 26 September 2018. The dinner occurred immediately prior to A P/L’s move from the Abbotsford office, which they shared with B P/L, to their new Collingwood office. It was ultimately uncontested, despite WV’s initial reluctance in his evidence to answer a relevant question, 57 that during the course of the dinner a telephone was passed around among some of the attendees and that pornography was viewed on the telephone.

[46] According to MC, on the following day she spoke with the Applicant and WV and advised them that in future she would decline to attend any dinners with B P/L staff. She took this position as she considered the event of the previous evening to be a business dinner and as such she did not wish to be seen as condoning the viewing of pornographic material at such an event. She found such material offensive both professionally and personally. She further cautioned the Applicant and WV to consider whether any future functions held with B P/L staff were business or private social events. If it were a business event she could not defend or condone the viewing of pornographic materials. She further states that she made it clear to the Applicant and WV that what they did at private social events had nothing to do with A P/L. 58

[47] The Applicant and WV characterised the caution given by MC as a direction as to who they could socialise with in their private time. They gave evidence that the dinner in question was a social event and not a business event, and as such MC could not give them directions as to attendance or how to behave at a private social event. The nature of the event was confirmed by JL who worked for B P/L and organised the dinner. She states that the event was purely social and that MC was, along with all other staff in the shared Abbottsford office, invited out of courtesy due to her being in the Abbotsford office at the time of the event. 59

[48] JL denied that the dinner on 26 September 2018 was a business dinner organised to farewell A P/L’s staff from the Collingwood office, and referred to a subsequent dinner held for that purpose to which only the Applicant and WV were invited along with B P/L staff. No evidence was adduced as to when or where the subsequent dinner took place. JL went on to state that MC was not invited to that subsequent “farewell” dinner as she had left the Abbottsford office by that stage, and that it was a more a social event to farewell the Applicant and WV. 60

[49] The Applicant and WV strove in their evidence to characterise the dinner of 26 September 2018 as a purely social one by reliance on MCs’ previous advice to them that, according to A P/L policy, business events could not be conducted at pubs. 61 The Applicant and WV state that as the dinner was held in a pub, ipso facto, the dinner could not be a business event based on MC’s previous advice.

[50] MC rejected the logic advanced by the Applicant and WV that the nature of the event, i.e. business or social, could be determined by reference to whether the event was held in a pub. She maintained her understanding that the dinner was a business event organised by B P/L to recognise that A P/L was leaving the Abbotsford premises. In addressing the argument as to whether the dinner was a business event because it was held in a pub, she distinguished the circumstances of where A P/L organised an event from that of where A P/L staff were invited to attend a dinner as was the case on the 26 September 2018. 62

Allegation 9 – Shoulder Touching Incident

[51] The Applicant states that he was inappropriately touched by MC during a discussion about political correctness. While unable to identify the exact date of the incident, the Applicant states that it took place in the Abbotsford office in September 2018. In describing the incident he states that MC came up behind him while he was seated at his desk and placed both of her hands on his shoulders. The Applicant characterised the behaviour as sexual harassment and states that it was unnerving and awkward. 63

[52] The Applicant rejected MC’s evidence that she asked his permission before placing her hands on his shoulders. 64 While stating that he regarded the touching as threatening and a violation of his personal space at the time, he did not make a formal complaint. He attributed his failure to report the incident at the time to the conditioning of his generation, that being as a male you were expected to “suck it up” and get on with your job.⁶⁵

[53] The Applicant also resisted MC’s evidence that the incident took place in the Collingwood office and in doing so referred to the location of the desks in the Abbotsford office, which the Applicant states allowed a person to walk up from behind him while he was seated at his desk. He produced photos of the Abbottsford office desk arrangement in support of that contention.⁶⁶ He went on to state that the Collingwood office arrangements did not, because of the desk arrangements, allow somebody to come up from behind and place their hands on his shoulders.

[54] WV confirmed that the incident occurred in the context of a discussion about political correctness and states that it occurred around August 2018 in the Abbottsford office. He went on to state that the Applicant was seated at his work station and the next minute MC had her hands on his shoulders, and was explaining that her actions could be seen as harassment. WV states that he observed the Applicant to be uncomfortable during the incident. 67

[55] MC rejected the Applicant’s version of the events. She was adamant that the incident occurred in the Collingwood office, as unlike the Abbottsford office, the desk set-up in the Collingwood office did not allow the Applicant to be approached from behind which she denied doing. 68 She further states that she sought consent to place a hand on the Applicant’s shoulder and steadfastly denied placing both hands on his shoulders. Rather, she states that she approached the Applicant from the front and side due to the placement of his desk, and then placed one of her hands on the Applicant’s left shoulder as a demonstration of how a simple action could be considered sexual harassment. She further states that the Applicant responded at the time to her suggestion that such an action could be seen as sexual harassment as “rubbish”.69

Miscellaneous Allegations

[56] While not specifically pressed as discreet allegations of bullying, other incidents were also raised by the Applicant and WV as evidence of the bullying nature and conduct of MC. These further incidents included;

(1) MC “directed” the Applicant and WV to call a work colleague regarding that colleagues 50^th birthday, well knowing that the Applicant and the colleague in question were not on good terms following a previous incident between the two men;

(2) MC asked the Applicant for two “lifts” home in circumstances where the Applicant felt uncomfortable after the shoulder touching incident;

(3) MC complained to the Applicant and WV about the quality of training she received on her commencement with A P/L; and

(4) MC bragged about putting a representative of the Department of Small Business and Jobs in her place.

[57] In response to the alleged incidents summarised immediately above MC variously states that;

(1) While aware that the Applicant and the colleague who was having a 50^th birthday did not have a pleasant history, MC denied directing the Applicant to ring him. Rather she simply made both the Applicant and WV aware of their colleague’s birthday and that they may wish to call him. She also emailed all the other consultants in the Victoria and Southern Tasmania region, and extended the same invitation that they may wish to call their colleague on his milestone 50^th birthday. 70

(2) MC states that the Applicant offered to give her a lift home on a couple of occasions as it was reasonably close to where he dropped WV off at the bus or tram stop. 71

(3) MC acknowledged that she commented to the Applicant and WV that she would have preferred better training in relation to the various systems used by A P/L as she felt they were not covered in enough detail. She also acknowledged being critical of a particular trainer engaged to deliver a course on “How to deal with challenging behaviours”. 72

(4) While acknowledging that she knew a particular lady at the Department of Small Business and Jobs, she denied ever stating that she intended to put her or any other representative of that government department in their place. 73

Legislation

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

“789FC Application for an FWC order to stop bullying

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

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

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

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

(4) The regulations may prescribe:

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

(b) a method for indexing the fee; and

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

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

“789FD When is a worker bullied at work?

(1) A worker is bullied at work if:

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

(i) an individual; or

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

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

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

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

(a) the person is:

(i) a constitutional corporation; or

(ii) the Commonwealth; or

(iii) a Commonwealth authority; or

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

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

[60] Section 789FF defines in the circumstances in which the Commission may make orders dealing with an individual that has been bullied at work:

“789FF FWC may make orders to stop bullying

(1) If:

(a) a worker has made an application under section 789FC; and

(b) the FWC is satisfied that:

(i) the worker has been bullied at work by an individual or a group of individuals; and

(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;

then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group

(1) In considering the terms of an order, the FWC must take into account:

(a) if the FWC is aware of 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.

Consideration

[61] It is evident from the statutory provisions that the Commission’s exercise of statutory power to issue anti-bullying orders requires the establishment of three pre-requisites, that being;

(1) A worker must have made an application under s. 789FC;

(2) The Commission must be satisfied that the applicant worker has been bullied at work by an individual or group of individuals; and

(3) The Commission must be satisfied that the applicant worker will continue to be bullied at work by an individual or group of individuals.

[62] In approaching the first pre-requisite, the task was considered by Hatcher VP in Amie Mac 74 and in doing so he identified that it was necessary to determine firstly whether the applicant was a worker as defined in s. 789FC(2). I respectfully adopt the Vice President’s reasoning. Subject to having found the applicant to be a worker as defined, it is then necessary to be satisfied that the applicant worker “reasonably believes he or she has been bullied at work.” In considering what constitutes a reasonable belief that would establish the necessary application standing the Vice President observed as follows;

“[79] An applicant under s.789FC must not only be a worker but must be one who “reasonably believes that he or she has been bullied at work”. The expression “reasonable belief” and similar expressions are utilised in a wide variety of contexts by the statutory and common law. It is clear from cases decided in those differing contexts that not only must the requisite belief be actually and genuinely be held by the relevant person, but in addition the belief must be reasonable in the sense that, objectively speaking, there must be something to support it or some other rational basis for the holding of the belief and it is not irrational or absurd. For example, in the context of the Federal Court rules concerning applications for preliminary discovery, which require the holding by the applicant of a reasonable belief that that there may be a right to obtain relief against another person not presently a party to a proceeding in the Court, it has been held that “there must be some tangible support that takes the existence of the alleged right beyond mere ‘belief’ or ‘assertion’ by the applicant” or that “there must be some evidence that inclines the mind towards the matter of fact in question”. In relation to a NSW statutory provision prohibiting legal practitioners from providing legal services on a claim or defence of a claim for damages unless the practitioner reasonably believed that the claim or defence had reasonable prospects of success, it has been held that the practitioner’s belief that there was material which justified proceeding will not be reasonable if it “unquestionably fell outside the range of views which could reasonably be entertained”. In relation to the concept of a “reasonable hypothesis”, it has been held that in order to be a reasonable one a hypothesis must be rationally based and possess some degree of acceptability or credibility, and must not be irrational, absurd or ridiculous. These examples all illuminate the way in which the Commission should approach the task of considering whether the applicant worker has the necessary reasonable belief such as to confer standing to make an application under s.789FC.

[80] It can be anticipated that in most cases it will not be in dispute that the applicant reasonably believes he or she has been bullied at work such as to permit the making of an application under s.789FC(1), and the Commission will be able to find without difficulty that the first prerequisite in s.789FF(1) is satisfied. I cannot identify any decided anti-bullying case to date in which the making of an application under s.789FC(1) was put in issue. However in this case the respondents have, in their Points of Defence, contended that Ms Mac’s belief that she had been bullied at work was not, objectively, reasonable, and accordingly her application was beyond the Commission’s jurisdiction. Accordingly it is necessary for me to give more detailed consideration to this issue. (footnotes omitted)”  75

[63] As regards consideration of the second pre-requisite, I am satisfied on review of the statutory provision and the relevant authorities that the task before me requires that I consider and establish the following;

•  Whether the Applicant was “bullied at work”, that is within a constitutionally covered business,

•  Whether the relevant behaviour complained of by the Applicant was engaged in by an “individual” or “group of individuals”;

•  Whether the relevant behaviour has the character of repeated unreasonable behaviour;

•  Whether the relevant behaviour creates a risk to the health and safety of the Applicant; and

•  Whether the relevant behaviour constitutes reasonable management action carried out in a reasonable manner.

[64] It follows from the above that a necessary step is for me to make findings of fact in relation to the relevant behaviour alleged to have occurred in in the present matter. A useful summary of the kind of behaviour that may fall into the category of repeated unreasonable behaviour that constitutes bullying was also detailed in Amie Mac. The Vice President said as follows;

“[99]……… During a longueur in the hearing, I attempted to draw up a list of the features at least some of which one might expect to find in a course of repeated unreasonable behaviour that constituted bullying at work. My list included the following: intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination……” 76

[65] I believe the Vice President’s summary to be a useful, though not exhaustive list of behaviours that may assist my task. I will turn shortly to a consideration of the relevant behaviour in the present matter.

[66] Finally, it is clear from the terms of s 789FF of the Act that, if I am satisfied that the Applicant has been bullied at work, the next step is for me to then determine whether there is a risk that the Applicant will continue to be bullied at work. In assessing that risk, I must be satisfied that the risk that the Applicant will continue to be bullied at work by an individual or group of individuals although not imminent, must be real, and not merely a conceptual or hypothetical risk.

Is the Applicant a worker that reasonably believes that he has been bullied at work?

[67] It was not disputed that the Applicant was a “worker” employed by a “constitutionally covered organisation” and that the alleged incidents occurred at “work”. Although I have ultimately found the substance of the application and the vast majority of individual allegations lack merit, there is nonetheless some foundation to the Applicant’s belief that; he has been bullied at work, that a risk of such conduct continuing exists and that the alleged conduct poses a risk to his health and safety. I am not persuaded that the basis on which the application was made by the Applicant was necessarily “irrational, absurd or ridiculous”. It follows form my conclusion that the Applicant has made an application under s. 789FC as required by s. 789FF(1)(a).

Has the Applicant been “bullied at work”?

[68] I turn now to consider whether the Applicant has been bullied at work by MC as alleged. This requires me to consider whether MC has engaged in repeated unreasonable behaviour towards the Applicant, such as to create a risk to the Applicant’s health and safety. Give the number of alleged incidents it will be necessary for me to consider whether each of those incidents occurred, and if so whether such behaviour constituted repeated unreasonable behaviour towards the Applicant.

Allegation 1- Inappropriate Staff Discussions

[69] While the Applicant raised the allegation on the basis of there having been multiple discussions and comments made by MC in respect of colleagues, only one specific example was identified, that of a Ringwood consultant. MC concedes that she had spoken about the Ringwood consultant to the Applicant and WV out of frustration on her return to the Collingwood office following a meeting with that consultant. I accept MC’s evidence that at the time of the incident she believed she had established a rapport with the Applicant and WV such that she felt comfortable to “vent” regarding the Ringwood office staff member. She further states that she understood that discussing the relevant staff member was inappropriate and she reported it to her manager.

[70] The Applicant and WV also referred to various “bizarre” personal stories told by MC but apart from the ill-fated dating experience disclosed to the Applicant and WV by MC, which she acknowledged in her evidence, no other specific examples were raised by the Applicant in support of the allegation.

[71] I am satisfied that MC, at the time of the discussion about the Ringwood consultant, believed that she had developed a sufficient rapport with the Applicant and WV, such that she felt able to express her frustration regarding one of her direct reports. As the direct report in question was a peer of the Applicant and WV, such “venting” was inappropriate and should not have occurred, even if it is understandable that a small office environment might encourage a degree of manager candour with the staff that might not otherwise occur in a larger office.

[72] The conduct of MC was indiscreet and unprofessional in my view. It is also however clear that MC, by her having self-reported the incident to her Manager, acknowledged that such behaviour should not have occurred. While MC’s candid discussion with the Applicant and WV was inappropriate, I am not persuaded that the behaviour was directed towards the Applicant or a group of employees he was part of nor could it be reasonably foreseen by MC, that such a conversation was likely to have been perceived by the Applicant as bullying. Furthermore, there was no evidence by way of further detailed examples that would support the Applicant’s allegation that there was repeated conduct of this type.

[73] I am satisfied that the incident of MC discussing a direct report from the Ringwood office occurred but that such action of MC, while inappropriate, did not constitute unreasonable behaviour directed towards the Applicant or WV.

Allegation 2 - 2 Birds Café Incident

[74] Much of the Applicant’s case in respect of this allegation appears to turn on the timing of the incident, and whether WV had by the time of the incident, established a rapport with the owners and staff of the 2 Birds Café such that he was able to engage in friendly banter in the staff member’s native language.

[75] I am satisfied that based on the Applicant’s own evidence and taken at its highest, the incident took place within a “week or so” of A P/L moving into the Collingwood office. I am further satisfied that after leaving the café MC cautioned WV about the wisdom of referring to a young lady, he at best barely knew, as “beautiful”. MC’s concern arose from her assessment, with which I agree, that a middle aged man referring to a young lady as “beautiful”, be that in English or in another language, is apt to be misinterpreted as foolish and uninvited or worse still sleazy, regardless of the motive. I am fortified in my conclusion on this point by the evidence of MC, which was not rebutted, as to the young female staff member’s apparent discomfort and the barista’s annoyed reaction to the use of the term “beautiful” by WV.

[76] As to the Applicant’s claim that the caution issued to WV by MC was racist, there is nothing before me that could reasonably support such a conclusion. I reject such a suggestion. I found MC’s version of events and evidence to be credible and in the absence of any effective rebuttal I accept that she did not direct WV to not speak in the native language of the café staff. Rather, it was the use of the term “beautiful” that was at issue which led to the caution to WV to be careful in the use of such terms given the potential for misinterpretation.

[77] I am satisfied that an incident occurred in which MC cautioned WV regarding the use of the term “beautiful” in his addressing a young female staff member at the 2 Birds Café in early October 2018. I am further satisfied that MC did not direct WV not to engage with staff of the café in their native language, but rather cautioned WV as to the use of the term “beautiful” and the impact it had on the female staff member. As regards the Applicant’s further contention, there is no basis on which to conclude that MC’s comments were racist or unwarranted. They were an appropriate caution to WV in the circumstances. The action was in my view reasonable management action carried out in a reasonable manner.

Allegation 3 – Phone Call Direction

[78] It is uncontested that arising from the client complaint of 14 November 2018, MC directed the Applicant and WV to not take phone calls during meetings with clients. This is an entirely appropriate business practice, and no criticism is made of MC in requiring the Applicant to follow such a protocol out of normal business courtesy and respect for clients. While the Applicant accepted that such a direction was reasonable he takes issue with the manner in which the issue was raised and communicated, which I will deal with below when dealing with Allegation 6.

[79] I am satisfied that the Applicant was directed both verbally during a meeting on 15 November 2018 and in writing following the meeting of 28 November 2018, that he should not take phone calls while in meetings with clients. Such a direction is in my view a reasonable management action. I am further satisfied that the direction was carried out in a reasonable manner for reasons that are detailed below with respect to Allegation 6.

Allegation 4 – Privacy Breach Incident

[80] It is uncontested that MC spoke with both WV and the Applicant regarding WV leaving private client files on his desks. MC’s concern was clearly related to WV. There was no evidence that the Applicant was specifically cautioned by MC regarding leaving files on his desk, although he was spoken to by MC about WV’s client file practices in WV’s absence.

[81] While it self-evident that a client file may need to be on the desk when it is being worked on it, is also entirely reasonable and to be expected that when a confidential client file is no longer required for use it should be placed in secure storage, particularly at the end of the day or when a consultant is not in the office. There is nothing unreasonable about MC requiring compliance of the Applicant and WV with appropriate client file privacy practices. Having said that, it would in my view be inappropriate for MC to be canvassing or complaining to the Applicant about WV’s client file privacy practices in WV’s absence as is alleged to have occurred in the present case. MC states that she and the Applicant placed WV’s client files in the storage cupboard while WV was absent on an RDO. She did not rebut the Applicant’s evidence that she complained about WV’s privacy practices whilst doing so. She did however firmly deny “having a go” at WV as claimed by the Applicant.

[82] I am satisfied that MC spoke with both WV and the Applicant regarding client file privacy issues, the issue of WV’s compliance being the focus. No evidence was adduced that MC held a particular concern regarding the Applicant’s privacy practices. While I accept that MC may have been short with WV regarding his putting files away, I also accept on the basis of MC’s evidence that she had previously raised the issue with WV and may have been frustrated with WV, hence her complaint to the Applicant when putting away WV’s files when WV was on an RDO.

[83] While the office in which the Applicant, WV and MC worked is small it is important that MC keep a “professional” distance and refrain from complaining to one of her reports in respect of the other. While MC may have held concerns regarding WV’s privacy practices, she should have confined her discussion of that to her direct dealings with WV. While MC discussed her concern regarding WV with the Applicant, which was in my view professionally indiscreet, it does not fall into the category of unreasonable behaviour.

Allegation 5 – Personal File Request

[84] This allegation goes to a verbal request that the Applicant and WV made for written confirmation that nothing would be recorded on their files arising from the client complaint made in November 2018. The Applicant claims that MC and BM failed to respond to that request, such failure constituting unreasonable behaviour.

[85] Both MC and BM gave evidence that they advised the Applicant and WV more than once that nothing would be recorded on their personal files arising from the client complaint. That advice did not satisfy the Applicant who pressed for advice to be provided in writing. I find nothing inherently unreasonable in an employer not confirming in writing that no record is to be made on an employee’s personal file. In fact it would be the practice of many employers to only make a record on an employee’s file in circumstances where misconduct or performance deficiencies warranted disciplinary action of some form. That was not the case in the present matter and the advice provided by both MC and BM was clear that no record would be placed on the Applicant’s personal file.

[86] It is apparent from both the Applicant and WV’s evidence that they regarded themselves as strong performers. It is further noted that the Applicant’s performance was not at any stage put in issue by A P/L. The Applicant and WV were clearly offended by the complaints raised in relation to their conduct and their evident sensitivity may explain the Applicant’s request for confirmation that no record would be placed on his file. In any case I am satisfied that both MC and BM addressed the concern raised by the Applicant in both the meeting of the 15 and 28 November 2018.

[87] I am satisfied that arising from the client complaint in November 2018 MC and BM concluded that no disciplinary action was warranted and as such no record was to be placed on the Applicant’s personal file. This was communicated to the Applicant in meetings on the 15 & 28 November 2018. I am further satisfied that while the Applicant was dissatisfied with the verbal advice and requested confirmation in writing, MC and BM did not believe written confirmation was necessary. I am not persuaded in the circumstances that their not providing written confirmation that no record would be placed on the Applicant’s personal file was unreasonable behaviour.

Allegation 6 – Client Complaint Meeting

[88] This allegation goes to the manner in which MC arranged and conducted the meeting on 15 November 2018.

[89] I am satisfied that following receipt of the client complaint of 14 November 2018, MC spoke with the Applicant and they jointly prepared an email response to the complainant. The Applicant acknowledged to MC at the time that the complaint could “escalate”. I am also satisfied that various email correspondence between A P/L and the complainant was available to both the Applicant and WV, and that they were both aware of the particular complaints. Unhelpfully, neither the Applicant nor A P/L produced copies of relevant email correspondence in the proceedings.

[90] The meeting subsequently arranged by MC for the 15 November 2018 was schedule to occur prior to WV’s RDO on the Friday. The timing of the meeting was not unreasonable in my view given that MC was dealing with a formal client complaint. The claim by the Applicant and WV that the timing of the meeting and the manner of it being arranged was unreasonable is also without foundation in my view. The fact that MC wished to deal with the matter quickly with the involvement of both the Applicant and WV does not establish grounds for criticism. Seeking to read into the timing of the meeting a disciplinary context deliberately misconstrues the intention of the meeting in my view.

[91] As regards the conduct of the meeting and the alleged behaviour of MC, I prefer the evidence of MC for the following reasons.

[92] Firstly, there is some conflict in the evidence of the Applicant and WV. Whereas the Applicant describes MC as aggressive at the commencement of the meeting and that he left the meeting feeling confused and unsupported, WV gave a somewhat different version. WV states that while he felt the meeting was initially conducted as an interrogation, he went on to give evidence that through the course of the meeting MC took on board what he and the Applicant had to say. WV on his evidence left the meeting believing he had been listed to by MC. The Applicant made no such concession.

[93] Secondly, I found MC to be measured and persuasive in her evidence and provided a version of events more aligned with WV’s, at least to the extent that through the course of the meeting she confirmed that the majority of the client complaints against the Applicant and WV had been dismissed. The Applicant’s statement as to his feeling confused and unsupported does not bare scrutiny in light of the dismissal of the majority of the client complaints which MC refers to in her evidence.

[94] Thirdly, as regards the demeanour and conduct of MC, the Applicant and WV during the meeting of 15 November 2018, I have had the benefit of observing the demeanour and behaviour of each of them during the course of the hearing of this matter and in particular during their evidence. Having observed each of them I find MC’s description of the Applicant and WV’s behaviour during the 15 November 2018 as more apt to be believed.

[95] I am consequently satisfied that in arranging and conducting the 15 November 2018 client complaint meeting, MC’s behaviour was not unreasonable. I am further satisfied that her conduct constituted reasonable management action carried out in a reasonable manner.

Allegation 7 – Dad Joke Direction

[96] Neither the applicant nor WV ultimately cavilled with A P/L’s instruction to WV to cease telling jokes during training programs. They both accepted the right of A P/L to issue such an instruction. The Applicant was however aggrieved at the statement MC was alleged to have made during the meeting of 28 November 2018, to the effect that she had previously instructed WV in the first month of her employment with A P/L not to tell jokes during training programs. The claim by MC to have made such a statement was untrue according to both the Applicant and WV. MC denied having given a direction to WV but did claim to have cautioned him as to being “mindful” of how such jokes might be perceived by clients.

[97] At issue is the accuracy and/or honesty of MC’s alleged comment in the meeting of 28 November 2018. MC did not rebut the Applicant’s and WV’s evidence that she made a statement in the meeting of 28 November 2018, to the effect that she claimed to have told WV in her first month of employment that she didn’t like him telling jokes in training programs. I accept that MC made such a comment in the meeting of 28 November 2018.

[98] At issue then is whether the statement made by MC in the meeting of 28 November 2018 was true or not. WV denies a caution was given to him by MC regarding the telling of jokes as claimed by MC. The Applicant was not a witness to any such warning but also acknowledges that he could not with certainty say whether such a warning was or wasn’t given to WV. He relied heavily in his evidence on WV’s strong denial of having received such a caution.

[99] In determining whether MC did in fact caution WV in the first month of her employment it is relevant to have regard to subsequent events. Of particular relevance is the client feedback session held in September 2018 during which MC obtained feedback from clients regarding WV’s training. The feedback from clients also included comments on WV’s jokes in class. While most of the clients were apparently ambivalent about WV’s jokes, it did not in any event appear on the evidence to prompt any follow-up by MC with WV regarding his refraining from using such jokes as a training tool in class. If MC had a strong view as to the merit or wisdom of WV using jokes in class, it would seem that a relevant time to have raised those concerns would have been immediately following her receiving client feedback. That does not appear to have occurred and the issue did not come to a head until the client complaint of 14 November 2018. This leads me to favour the evidence of WV that he did not receive a caution from MC in the first month of her employment with A P/L regarding his telling of jokes.

[100] Having preferred the evidence of WV as to the claimed caution regarding telling jokes not having been given to him in MC’s first month of her employment, I am left to conclude that MC’s statement in the meeting of 28 November 2018 that she had done so was self-serving. While it is difficult to ascribe a motive to MC’s behaviour, one apparent benefit to MC in claiming to have previously cautioned WV regarding the wisdom of telling jokes, is that of shoring up her position on the issue in the eyes of her manager BM. Ultimately however, it is not necessary to make findings as to MC’s motive. It is sufficient for me to find that despite having claimed to have previously cautioned WV regarding telling jokes I am not persuaded that such a caution was given by MC.

[101] I am satisfied in the circumstances of the meeting on the 28 November 2018 and given the apparent sensitivity of both the Applicant and WV to any criticism of their performance or conduct, that MC’s statement that she had previously cautioned WV regarding his joke telling was both unwise and untrue. It should have been foreseeable to MC that such a statement was likely in the circumstances to have a negative impact on both WV and the Applicant. I am consequently satisfied that the statement by MC constituted unreasonable behaviour.

Allegation 8 – Social Event Incident

[102] It is not contested that a dinner occurred on 26 September 2018 at the Terminus Hotel to which all of the A P/L and B P/L staff in the Abbottsford office were invited to attend. Nor was it contested that during the course of the evening a phone was passed around among some attendees with pornography being shown. MC took offense at this occurring both personally and professionally in the context of what she regarded as a business event. She stated to the Applicant and WV the following day that she would not attend such events with B P/L in the future, and cautioned the Applicant and WV regarding attending such events where pornography may be shared.

[103] The Applicant took issue with what he and WV regarded as an instruction as to who they socialised with in their private time. The Applicant and WV sought to rely on previous advice from MC regarding A P/L business events not being held in pubs in support of their view that the dinner of 26 September 2018 was a “social” event. The Applicant’s description of the dinner as a social event was supported by JL who organised the event and invited MC “out of courtesy”, because she was in the Abbottsford office at the time. JC denied that the event was organised to recognise the departure of A P/L from the Abbottsford office.

[104] I found the evidence of JL unconvincing in relation to the nature of the event. She was unable to effectively reconcile the invitation extended to MC to attend the event of 26 September 2018, with the fact that MC was not invited to a subsequent “farewell” event to which the Applicant and WV were invited. 77 The rationale offered by JC was that by the time the “farewell” dinner was held, MC was no longer in the Abbottsford office and that in any event both events were social events. It is noted that the date and location of the “farewell” dinner was not clarified, but it is clear that by the time that event occurred several weeks later both WV and the Applicant had also left the Abbottsford office.

[105] While much was made by the Applicant and WV as to the event being a purely social event I accept that MC regarded the event as a business event held to recognise the departure of A P/L from the Abbottsford office. This was in my view a reasonably held belief of MC having regard to the fact that all A P/L and B P/L staff in the Abbottsford office were invited, and given the timing of the dinner relative to the imminent departure of A P/L from the Abbottsford office. It is ultimately unnecessary for me to decisively resolve the point of whether it was a social or business dinner. This is because the caution conveyed to the Applicant and WV regarding the viewing of pornography, while given in the context of MC viewing it as a business event, had an important caveat that what the Applicant and WV did in their private time was not a matter for A P/L. Importantly, I do not accept the contention of the Applicant that MC gave an instruction to he and WV not to socialise with B P/L staff. That characterisation of the caution given by MC is, on the evidence before me, misconceived.

[106] I am satisfied that MC cautioned the Applicant and WV regarding attending future business events in circumstances where pornography may be shared. I am further satisfied that the caution was given in the context of MC’s reasonably held belief, that the dinner of 26 September 2018 was a business event organised by B P/L to recognise A P/L’s departure from the Abbottsford office. I find no tension in MC’s view of the dinner as a business event and her previous advice to the Applicant and WV that A P/L would not authorise the conduct of a business event at a hotel. The circumstances of the dinner in which B P/L invited A P/L staff are clearly distinguishable from circumstances where A P/L were organising an event and had the capacity to determine the location of the event.

[107] Importantly, I am not persuaded that the caution given by MC was an instruction that the Applicant could or should not socialise privately with B P/L staff. The caution was confined to attendance and viewing of pornography at business events. In the circumstances I am satisfied that it was an appropriate caution and was reasonable management action carried out in a reasonable manner.

Allegation 9 – Shoulder Touching Incident

[108] The Applicant states that the incident occurred in the Abbottsford office in September 2018, in which MC is alleged to have approached the Applicant from behind while he was seated at his desk, and then placed both her hands on the Applicant’s shoulders. The Applicant states that MC’s conduct constituted sexual harassment, an invasion of his privacy and had a significant impact on him. WV provided evidence in support of the Applicant’s version of events, although WV states that the incident occurred in August 2018. The apparent relevance of the office location in which the incident occurred is that, according to the Applicant, he cannot be approached from behind in the Collingwood office because of the work station configuration whereas the Abbottsford office work station configuration did allow such an approach from behind.

[109] MC for her part was adamant that the incident occurred in the Collingwood office and that she approached the Applicant from the front and side, and after asking the Applicant whether it was ok, placed one of her hands on the Applicant’s left shoulder to demonstrate a point she was making regarding sexual harassment.

[110] I found the evidence of both the Applicant and WV on the incident to be contrived and unconvincing. While both acknowledged that the incident occurred in the context of a discussion in relation to sexual harassment, the Applicant rejected the evidence of MC that she sought permission and also states that the incident occurred while he had his back to MC. There is a significant tension between acknowledging that the incident occurred while holding a discussion while at the same time having his back to MC. I find it inherently unlikely that the Applicant would have had his back to his manager during the admitted conversation on sexual harassment. My view of the unreliability of the Applicant’s evidence is reinforced by his admitted failure to report at the time what he now claims to have been sexual harassment.

[111] By contrast, MC gave clear consistent evidence as to the context of the incident and the manner in which she sought permission from, and then approached the Applicant from the front and side to place her hand on his left shoulder. She also described the Applicant’s reaction at the time as that of rubbishing her suggestion that such touching could be seen as sexual harassment. The Applicant did not contradict MC’s evidence as to his reaction.

[112] As to the location of the incident I accept that there may be a different recollection and I don’t criticise any of the parties for that. It is clear in any event, based on the photos provided of the Abbottsford office desk configuration, that approaching the Applicant while he was seated at his workstation could also have occurred from the left front and side of the Applicant in that office. I don’t regard the office location of the incident as ultimately critical to my findings on what occurred.

[113] I am satisfied on the evidence that an incident occurred whereby during a discussion on sexual harassment, MC approached the Applicant from the front and side and after asking his permission placed a hand on his left shoulder to demonstrate a point she was making, regarding how a seemingly innocuous act could be perceived as sexual harassment. I also accept that the Applicant reacted to the point made by MC with a degree of incredulity that such an act could constitute sexual harassment.

[114] I am satisfied that incident does not constitute sexual harassment by MC towards the Applicant. To find otherwise as the Applicant has urged would be to be seriously confect the context and events.

Miscellaneous Allegations

[115] As regards the miscellaneous allegations raised by the Applicant, I do not regard them as supporting the allegations of repeated unreasonable conduct on the part of MC for the following reasons.

[116] I am not persuaded that MC “directed” the Applicant to call a colleague with whom he had an unfavourable history with on his colleague’s 50^th birthday. I accept that the Applicant, along with all other staff reporting to MC, were invited by her to call their colleague on his milestone birthday if they wished. The Applicant’s attempt to characterise this action on the part of MC as bullying is simply wrong.

[117] I am similarly not persuaded that MC pressured the Applicant to give her a lift home. As regards to the claim that the shoulder touching incident left the Applicant feeling uncomfortable in MC’s presence, I find that entirely unconvincing given my earlier findings regarding the veracity of the Applicant’s version of the shoulder touching incident.

[118] I accept that MC complained about the quality of training she had undertaken on commencement with A P/L. This does not constitute unreasonable behaviour directed towards the Applicant or WV such as to support the claim of bullying.

[119] I am unable to conclude whether MC made the statement that is attributed to her in relation to the representative of the Department of Small Business and Jobs being “put in her place”. Even if such a statement were made it is difficult to see how that could be viewed as bullying conduct. At worst, such a statement might be seen as professional bragging, no more no less. I am not persuaded that it constitutes bullying conduct if it occurred.

Summary of allegations

[120] While I have found that MC engaged in inappropriate behaviour by discussing her frustration with work colleagues of the Applicant (Allegation 1 & 4), that conduct does not constitute unreasonable behaviour for the purpose of satisfying s 789(1)(a)(ii). I have also found that the untrue statement that MC made in the meeting of 28 November 2018 regarding having previously cautioned WV over his telling of jokes constituted unreasonable behaviour (Allegation 7).

[121] I have also made findings in relation to the remaining allegations. There were a number of incidents where MC’s engaged in reasonable management action carried out in a reasonable manner; specifically Allegations 2, 3, 6 and 8. I am also satisfied that the balance of the incidents on which I have made findings did not involve unreasonable behaviour on the part of MC.

[122] While I have found one instance of unreasonable behaviour and some inappropriate management behaviours by MC, I have not identified any conduct that would fall into the broad description and examples of behaviours identified by Hatcher VP in Amie Mac which I have reproduced above at paragraph [63]. I find the allegations made by the Applicant as largely lacking in merit. To the extent that I have found some unacceptable behaviour, it is limited and minor in nature and does not establish a basis for finding that the Applicant has been bullied at work.

Conclusion

[123] I am not satisfied that MC has engaged in repeated unreasonable behaviour towards the Applicant or group of workers that the Applicant is a member of. The Applicant has failed to establish the required criteria under s 789FF (1) of the Act to support a conclusion that he has been “bullied at work” in accordance with the definition provided at s 789FD of the Act. Having reached this conclusion it is unnecessary for me to consider and determine whether a risk of further bullying exists.

[124] The Applicant’s application for an order under s789FC of the Act is consequently dismissed. An order to giving effect to this will be issued in conjunction with this decision.

DEPUTY PRESIDENT

Appearances:

L M on his own behalf.

D P for the Respondent

Hearing details:

2019
Melbourne
29 & 30 April.

Printed by authority of the Commonwealth Government Printer

<PR709766>

 1   Exhibit A2, Witness Statement of Applicant, dated 22 February 2019, paragraph 8; Exhibit 1, Witness Statement of WV, dated 22 February 2019, paragraph 9

 2   Exhibit A1, paragraph 13

 3   Exhibit A2, paragraph 14

 4   Exhibit A1, paragraph 14

 5   Exhibit A2, paragraph 14

 6   Exhibit A1, paragraph 14

 7   Exhibit A2, paragraph 14

 8   Exhibit R3, Witness Statement of MC, dated 24 March 2019, paragraph 10

 9   Ibid

 10   Ibid, paragraph 8

 11   Ibid, paragraph 10

 12   Ibid

 13   Exhibit A2, paragraph 15

 14   Exhibit R2, Witness Statement of MC, dated 24 March 2019, paragraph 22

 15   Ibid

 16   Transcript at PN532

 17   Ibid

 18   Exhibit A2, paragraph 43

 19   Exhibit R4, Witness Statement of BM, dated 12 April 2019, paragraph 46

 20   Exhibit R3, paragraph 34

 21   Respondent’s Outline of Submissions, Attachment A

 22   Exhibit R5, Witness Statement of AM, dated 25 March 2019, Attachment A – Investigation Report

 23   Ibid

 24   Respondent’s Outline of Submissions, Attachment G

 25   Exhibit A2, paragraph 14, Exhibit A1, paragraph 13

 26   Applicant’s Response to refuting of Allegations

 27   Exhibit R2, paragraph 9

 28   Ibid

 29   Transcript at PN491

 30   Ibid, paragraph 13

 31   Exhibit R2 at paragraph 13, Transcript at PN495-PN497

 32   Transcript at PN215

 33   Exhibit A2, paragraph 16

 34   Transcript at PN 433-PN434

 35   Exhibit A2, paragraphs 16-20

 36   Ibid, paragraph 13

 37   Ibid, paragraphs 31-38

 38   Exhibit R2, paragraph 20

 39   Exhibit A2, paragraph 43

 40   Transcript at PN884

41 Exhibit R4, paragraph 46

 42   Transcript at PN 1173

 43   Ibid at PN 1199

 44   Exhibit A1, paragraph 39

 45   Exhibit A2, paragraph 25

 46   Transcript at PN507

 47   Ibid at PN508

 48   Transcript at PN515

 49   Exhibit R2, paragraph 22

 50   Transcript at PN587

 51   Ibid, paragraph 22, Transcript at PN522-PN529

 52   Exhibit A2, paragraphs 46-47

 53   Ibid, paragraph 48

 54   Exhibit A1, paragraph 51

 55   Exhibit R3, paragraph 30

 56   Ibid, transcript at PN538-PN539

 57   Transcript at PN198

 58   Exhibit A1, paragraph 11

 59   Transcript at PN1092-PN1096

 60   Transcript at PN1104-PN1115

 61   Ibid at PN205

 62   Ibid at PN734-PN737

 63   Exhibit A2, paragraph 11, Transcript at PN398-PN400

 64   Ibid at PN401

65 Transcript at PN423-PN424, PN459

66 Exhibit A3, Photos of Abbottsford office desk arrangements

 67   Exhibit A1, paragraph s 16-17

 68   Transcript at PN678, PN686-PN687

 69   Exhibit R2, paragraph 7; Transcript at PN689

 70   Transcript PN835-PN838

 71   Exhibit R2, paragraph 9

 72   Ibid, paragraph 10

 73   Ibid

 74   Amie Mac v Bank of Queensland and others [2015] FWC 774

 75   Ibid at paragraph [79]-[80]

 76   Ibid at paragraph [99]

 77   Transcript at PN1103-PN1118