DECISION

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

Stephen Cain
v
Stuart Downing; Logan Howlett; Lee-Anne Smith; Kevin Allen
(AB2020/244)

Application for an FWC order to stop bullying – interim order to stop bullying – Leanne Mayson v Mylan Health Pty Ltd followed - statutory interpretation of the term ‘at work’ – special paid leave and suspension said to be ‘at work’

[1] On 23 October of 2019, Mr Stephen Cain, the Chief Executive Officer (CEO) of the City of Cockburn (the City), emailed a complaint of workplace bullying to the Elected Members of the City’s Council (the Council). In response, the Council held an informal meeting to discuss Mr Cain’s complaint. They reached consensus that an investigation was necessary, Mr Cain’s request for personal leave would be accepted and his IT access would be temporarily suspended during the investigation - enabling a reprieve from his purported excessive workload, an issue which he had identified was causing him stress.

[2] When the complaint was made, it was evident it centred on the alleged conduct of Councillor Leanne Smith (Councillor Smith). Mr Cain noted in his separate letter to Mayor Logan Howlett, of 24 October 2019, ‘[T]he concerns outlined in this document relate to interpersonal relations between me and Councillor Smith and the impact this has had on me’. 1 The impact referred to was upon Mr Cain’s health and well-being.

[3] By letter of 28 October 2019, Mayor Howlett confirmed receipt of Mr Cain’s complaint and informed him an external consultant would investigate the matter. Mayor Howlett continued that Mr Cain would not be required to attend work until the investigation was complete and due consideration had been given to the investigative report by Council. 2 In the letter it was explained Mr Cain’s focus was to be on his physical and mental health. A Special Council Meeting (SCM) was held on 4 November 2019, and a subsequent letter was issued to Mr Cain of 6 November 2019, where he was again instructed not to attend work or work related events, IT access was suspended, and Mr Cain would be placed on special paid leave.3

[4] On 25 November 2019, Mayor Howlett received an email from Mr Cain that referred to the direction not to attend work and the employment restrictions. The email concluded that the ‘apparent reason for the City and each of the Elected Members when they made the resolution to take such adverse action against me would appear to be because of my complaint’. By email dated 28 November 2019, Mr Cain again informed Mayor Howlett that there was no proper basis for the Council to place him on special paid leave under his contract – and again referred to such conduct being improper and adverse action against him because he had made a complaint. 4

[5] Mr Cain was interviewed on 5 December 2019 by a Dr Helen Sitlington, the consultant engaged to conduct the workplace investigation into Councillor Smith’s alleged workplace bullying. Mr Cain had prepared notes for his meeting with Dr Sitlington 5 and in those notes he tabled complaints about Councillor Kevin Allen. The complaints included that Councillor Allen had persistently made derogatory remarks about him in emails and had repeatedly undermined him in the CEO Performance Review Committee meetings.6 Mr Cain noted that the intention of Councillor Allen had been to have Mr Cain replaced – which, Mr Cain said, was confirmed in an email exchange between two other Councillors.

[6] Come 6 December 2019 however, Mr Cain now faced allegations of misconduct and was suspended on pay pending an investigation into the allegations (misconduct investigation). 7 At the time of the hearing, Council had not yet determined the outcome of the misconduct investigation; a meeting of the Council was to be convened for this purpose, on 16 April 2020.

[7] This matter was expedited to hearing because the utility of the proposed orders sought (see Annexures A and B) would be nullified if the Commission did not deliver its ‘verdict’ before the SCM on 16 April 2020.

[8] It followed that on 6 April 2020, Mr Cain applied for urgent interim orders to prevent Mayor Howlett, Councillor Smith, and Councillor Allen, from effectively having any further involvement about, concerning, or in relation to the bullying complaint or misconduct allegations (see Annexure A to this decision). The interim order extended to a Mr Stuart Downing, the Acting CEO, who Mr Cain had appointed. In short, the interim order required Mr Downing to refrain from taking any further action in the discussion, consideration of, or the making by any person of any determination concerning or in the relation to the bullying complaint and misconduct allegations. In the alternative, where interim orders were not available, Mr Cain sought a declaration and final orders (see Annexure B to this decision).

[9] At this juncture it should be said, Mr Cain initially made a complaint of workplace bullying to the Council in early January 2020. Prior to that time Mr Cain had, in correspondence to the City, alluded to the elements generally associated with a general protections claim. However, by 10 January 2020, his focus appeared to have turned squarely to an application for an order to stop bullying against five named respondents. Those five named respondents were the City, Mr Stuart Downing, Acting CEO of the City, Mayor Howlett, Councillor Smith and Councillor Allen; all of whom received a draft Form F72 on 10 January 2020. That draft Form F72 was however, not filed with this Commission.

[10] The outcomes of Dr Sitlington’s report were communicated to Mr Cain in a letter of 12 March 2020, which confirmed that Dr Sitlington’s investigation report was presented to Council for consideration at the SCM on 11 March 2020. 8 The letter provided that at the SCM the Council had passed several resolutions, including to accept and implement initiatives as recommended by the City’s lawyers, Jackson McDonald in response to Mr Cain’s bullying complaint.

[11] Having had the opportunity to hear from Counsel for Mr Cain (instructed by Allion Partners) and Counsel for Mr Downing and the City, concerning whether the Commission had jurisdiction to make interim orders in this matter as requested, I decided it did not, having adopted the approach of the Deputy President in Leanne Mayson v Mylan Health Pty Ltd and others (Mayson). 9

[12] I concluded that the Commission had no power to make an order – whether interim or final, to stop ‘bullying’, unless satisfied that the two limbs in s.789FF(1)(b) had been met. First, the Commission must be satisfied that Mr Cain has been bullied at work by an individual or group of individuals and second, there is a risk that at work Mr Cain will continue to be bullied by the individual or group of individuals identified in his application.

[13] Based on the evidence before me, I was not satisfied that Mr Cain had been bullied at work by the First Respondent (Mr Stuart Downing), the Second Respondent (Mayor Logan Howett) or the Fourth Respondent (Mr Allen).

[14] Regarding the Third Respondent, Councillor Smith, I was satisfied that Councillor Smith had engaged in repeated unreasonable behaviour toward Mr Cain for a period, noting however that for approximately two months in 2020, Councillor Smith was suspended. However, with respect to s789(FF)(1)(b)(ii), I was not satisfied that there is a risk that at work Mr Cain will continue to be bullied by Councillor Smith.

[15] Based on the above, I concluded the Commission was absent jurisdiction to make the proposed interim order sought, or the proposed final order. Therefore, I dismissed the application and, accordingly, an Order 10 was issued to that effect on 16 April 2020.

[16] During the hearing several contentious issues were raised, which has regrettably led to a lengthy decision. Those issues included whether Mr Cain was ‘at work’ when the unreasonable repeated behaviour was said to have occurred, and whether the orders sought were an available remedy. Further, while the City was not a ‘named person’ or respondent to the proceedings, I nevertheless decided to hear from it given its enmeshment in the factual matrix and its status as employer. 11 My reasons for the decision follow.

Background

[17] The background to this matter is detailed and extensive. Material filed was voluminous. An appreciation must then be had that not all nuances of the evidence are covered. Yet, a forensic lens was warranted at times, in light of the numerous particulars relied upon by Mr Cain to evince he had been bullied and was at risk of such continuation.

[18] Mr Cain commenced employment with the City as its CEO in November 2004. 12 He purported that in an Ordinary Council Meeting in August 2019, his contract of employment was extended until June 2023.

City of Cockburn

[19] Mr Cain gave the following uncontested evidence concerning the City:

The City is a ‘local government’ as defined in section 1.4 of the Local Government Act 1995 (WA) (LG Act). It is designated a ‘city’ further to section 2.4 and 2.5(1) of the LG Act. The City is a body corporate, with the capacity of a legal person and can be sued in its name by reason of section 2.5(2), (3) and (6) of the Act.

Section 3.59 of the Act expressly addresses commercial enterprises by local governments. By section 6.15 of the Act, a local government may receive revenue and income from a number of different sources in addition to rate and services charges.

The City’s activities include commercial and land leases, an agreement on royalties from a small power station (at its landfill), a marina (that charges commercial fees), and a commercial landfill that included a re-cycled goods shop…

On 7 April 2020, at https://www.cockburn.wa.gov.au/getattachment/44d515a9-8050-4f5b-926a-72a700fc026f/ECM)8498510_v1_Annual-Business-Plan-2019-2020-pdf.aspx, I found a document that is represented as the City’s Annual Business Plan for 2019/2020. I understand from page 4 and 5 of this document under the heading ‘Operating Income’ that the City’s total income for the period is anticipated to be around $157M of which fees and charges are budgeted to be $29.36m (about 18.7% of income). 13

The bullying complaint and leave

[20] The day before Mr Cain emailed his bullying complaint to the Elected Members, he received an email from Councillor Allen, who had forwarded an email concerning issues at a property where the occupants had burned material generating purported toxic fumes. Councillor Allen’s email dated 22 October 2019, and addressed to Mr Cain, and two of the City’s Executive Team, stated ‘[W]hen are we going to grow some balls and act on this location?’. 14 Mr Cain’s response to Councillor Allen’s email was to forward it to Mr Arndt (Director of Planning and Development), requesting him to file it, add it to the chronological summary, and note to Councillor Allen that his remarks are not acceptable (referencing the Elected Members’ Code of Conduct).15

[21] Mr Cain said that on 23 October 2019 he sent an email to each of the Elected Members 16 and a letter to Mayor Howlett17 outlining that over a long period, the three Elected Members had engaged in repeated behaviour toward him that had resulted in him feeling depressed, stressed and exhausted.18

[22] The email dated 23 October 2019 to Elected Members outlined a series of complaints that had been made against Mr Cain over a period. In brief those complaints included:

a) a complaint lodged several years ago by a former Elected Member to the Corruption and Crime Commission (CCC). The CCC handed the matter over to the Public Sector Commission (PSC) who found that the complaint was of no substance and subsequently dismissed it;

b) a complaint by an Elected Member in 2018 by way of an ‘anonymous’ letter to Mayor Howlett outlining a series of grievances and allegations. Mr Cain advised Mayor Howlett that the City’s Director of Governance and Community Services would review the complaint and report back his findings to Mayor Howlett, which occurred. The complaint was unsubstantiated; and

c) innuendo with regard to the CEO Review and Performance Assessment process (discussed at an August Council Meeting). Mayor Howlett was briefed, and Mr Cain referred the matter to the PSC, who through the governing body of the sector, the Department of Local Government, Sport and Cultural Industries, appointed a senior investigator to assess the complaint. The complaint was unsubstantiated and dismissed. 19

[23] Mr Cain further explained in his email dated 23 October 2019, that over the past month all he had virtually done in his role was to process complaints that involved Elected Members. 20 Mr Cain noted that the Local Government Act 1995 (WA) (Local Government Act) did not cite behaviour management of Elected Members as a core function of a CEO, but this was, according to Mr Cain, what had occurred.21

[24] Further to the processing of complaints, Mr Cain raised that for almost a decade he had been subjected to a steady increase in inappropriate behaviour toward him. 22 This behaviour, which started off as the occasional derogatory remark, had evolved into a sustained process of harassment and bullying.23 Examples provided included derisory conduct, false allegations, excessive communication and a range of other hostilities.24 Mr Cain identified that much of the behaviour had come from one individual.25

[25] Mayor Howlett gave evidence that Mr Cain’s personal assistant, Ms Spearing, delivered the letter of 24 October to his office on 24 October 2019. 26 The envelope was marked confidential27 and Mayor Howlett confirmed that he did not show it to anyone else.28 Regarding the contents of the letter, Mayor Howlett stated that he did not understand that the content of letter referred to any action he may have taken towards Mr Cain.29

[26] In the letter to Mayor Howlett of 24 October 2019, Mr Cain identified the one individual referred to in the email dated 23 October 2019; as Councillor Smith. Mr Cain stated in his letter that Councillor Smith had been elected in October 2009, and in October 2017 was also elected by the Council as its Deputy Mayor, which she had held until the expiry of the term in October 2019. 30 Mr Cain thereafter proceeded to list seven events over the course of 2011- 2019, in which there had been incidents (related to alcohol consumption) concerning Councillor Smith, which he had been left to deal with.

[27] The letter of 24 October 2019 then proceeded to detail examples of Councillor Smith’s behaviour towards Mr Cain, it read:

•  Email 14 November 2013 (attachment 5) criticising the conduct of the community meeting that had kicked off the Cockburn Community response to the Local Government Reform announcements.

•  Email 12 April 2017 (attachment 6) that included remarks:

"You are sooooooo missing the point Stephen. How misinformed you are around mental health and inclusion. That's frightening!

•  Email 9 June 2017 (attachment 7) that included remarks to me:

"I have very grave concerns regarding the leadership being shown.

If it was not for the integrity and good values displayed by our Mayor I would really struggle to work beneath such concerns."

•  While I provided further guidance to Cr Smith on the background to the issue, her response to me on 9 June 2017 (attachment 8) became more personal·stating:

"You are missing my point- very convenient of you.

I am not responding any further and like I said 'you have to sleep at night"'

•  On 22 March 2016 (attachment 9) it became necessary to write to Cr Smith about her conduct and the impact it was having on the Administration, especially the generation of excessive email and interference with operational matters.

•  On 10 May 2018, prior to consideration of a planning item (14.3) for the May Ordinary Council Meeting; Cr Smith made public statements to all Elected Members and staff present that were highly critical of me. In this instance she had been cautioned about engagement had with the developer (item proponent) and an Alternative Recommendation made by her. Cr Smith's own actions on this matter were unlawful and subsequently resulted in a Standards Panel complaint being lodged and upheld (complaint 60 of 2018.)

•  On 30 May 2018 (attachment 10) a further letter of advice was issued about Elected Member behaviour towards staff; the majority of the staff complaints related to Cr Smith's behaviour.

•  On 18 June 2018 (attachment 11) another letter was sent to Cr Smith complaining about her conduct.

•  On 3 August 2018 Cr Smith sent an email to the Executive group alleging staff concerns stating:

"I would just like to add that over the last few months the mayor and I have also received multiple anonymous concerns from multiple staff to [sic] frightened to give feedback"

•  On 6 August Mayor Howlett sent two further emails (attachment 12), the first at 3:25pm, the next at 3.57pm, which included a formal response to Cr Smith's allegation in which he stated:

"I advised you that I have not received multiple anonymous concerns from multiple staff ... "

•  On 9 August 2018 (attachment 13) Cr Smith was asked to substantiate her remarks, but refused to do so.

•  On 9 February 2019 (attachment 14) sought permission to attend a training event, including the following statement:

"Appreciate it's a long shot given my last name is not Terblanche."

•  On 20 September 2019 (attachment 15) a complaint was sent to Cr Smith and Cr Eva about their poor behaviour in front of guests and staff. When it was pointed out to Cr Smith that she had initiated the incident she simply dismissed the comments.

•  On 14 October 2019 (attachment 16) Cr Smith sent an email to the Executive and copying the City's Communications Manager with the heading of 'Stalking'. That email included imagery from my personal Facebook page with the direct inference in the email that I had been stalking her. This mortified me and advice was provided that simply explained how such connections could occur (see emails 14 October 2019). 31

[28] The letter of 24 October 2019, set out that from 2010, Councillor Smith had engaged in a steadily increasing level of hostility and inappropriateness directed towards Mr Cain. 32 Mr Cain noted that in his role as CEO he had formally advised her, counselled and at times cautioned her when necessary; all to no effect.33 Mr Cain expressed that many of the issues that had been raised in his letter of 24 October 2019, were covered by the Elected Member Code of Conduct (Code), however, adherence to the Code remained a voluntary undertaking and notwithstanding breaches of the ‘Rules of Conduct’ had been lodged – such statute did not provide general protection for himself from the retaliatory behaviour of Councillor Smith.34

[29] In both the email dated 23 October 2019 and the letter of 24 October 2019, Mr Cain outlined that his personal mental health and physical health had been significantly impacted – necessitating medical care, pharmacological support and other assistance. In the email, Mr Cain stated:

This situation has had a sustained and substantial impact on my mental and physical health. I have constant headaches, am constantly fatigued, succumbed to a second instance of shingles in the past two years and am now taking other medications to deal with the stressful environment I have been placed in. I am exhausted. The staff have seen the direct impact it is having on me and my Executive has urged I take time off; recognising that I am struggling to fulfil my role under this burden. This morning my GP has also prescribed rest and other support measures. 35

[30] Mayor Howlett gave evidence that on 24 October 2019, he attended an informal meeting of Elected Members, with the exception of one Councillor. 36 The Executive Team were in attendance, comprising of Mr Downing, Mr Green (Director of Governance and Community Services), Mr Arndt, and Mr Sullivan (Director of Engineering & Works).37 The topic of discussion was Mr Cain’s email dated 23 October 2019.38

[31] From the evidence of Mayor Howlett, it is evident that those at the meeting held a view that immediate action was required to ensure Mr Cain’s health and well-being were protected, 39 an independent investigator should enquire into Mr Cain’s complaint,40 workers’ compensation forms should be made available to him and the Employee Assistance Program,41 he should be informed that he did not need to concern himself with Council business and needed to rest,42 and there should be a restriction put in place regarding emails, otherwise he would continue to expose himself to the workload.43

[32] By letter dated 28 October 2019, 44 Mayor Howlett acknowledged receipt of Mr Cain’s medical certificate, which certified Mr Cain unfit for work for the period of 23 October 2019 to 8 November 2019, and Mr Cain’s allegations of behaviour which he believed constituted bullying and/or harassment.45 Mayor Howlett went on to explain that an external consultant would be engaged to investigate Mr Cain’s allegations, and that he would not be required to attend work until the investigation was completed and Council had given due consideration to the investigative report.46 In the letter, it was explained that Mr Cain’s focus was to be on his physical and mental health, and that to ensure the necessary separation from work issues Council had requested that his IT system access (including email) be temporarily suspended for the duration of his absence.47

[33] The letter of 28 October 2019, further informed Mr Cain about the City’s Employee Assistance Program, provided a Workers’ Compensation Claim Form (in the event Mr Cain elected to make a claim), and identified Mr Downing or the Manager of Human Resources as a point of contact. 48

[34] Mr Cain gave evidence that on 4 November 2019, without notice to him, the Council held a SCM and made a resolution to the effect that he would be placed on ‘special paid leave’ whilst an investigation took place. 49 This was despite the fact, said Mr Cain, that he was still on sick leave.50

[35] Mayor Howlett explained that as Mayor he can call SCMs. 51 The procedure for doing so is set out in the Local Government Act 1995 and the City’s Standing Orders.52 He called a SCM for 4 November 2019, to enable the Council to consider and resolve to make decisions in a formal Council Meeting on how to address and resolve Mr Cain’s bullying complaint.53 That part of the meeting was held behind closed doors, meaning the public were excluded, and representatives of the law firm Jackson McDonald were present.54 At the SCM, Council resolved to initiate an investigation in Mr Cain’s bullying complaint and to place Mr Cain on special paid leave while the investigation was taking place (therefore precluding him from work and work related functions).55 At hearing, it was explained that instead of Mr Cain exhausting his personal leave, the Council saw fit to place him on special paid leave.

[36] According to Mr Cain, he initially sent correspondence to Mayor Howlett and thereafter there was correspondence between his lawyers, Allion Partners, and Jackson McDonald, who represented the City, about his objection to being unilaterally placed on ‘special paid leave’ as there was no basis under his employment contract to do so. 56 Mr Cain said he understood from the correspondence, he was being kept away from the workplace to protect his safety and wellbeing pending an investigation into his bullying complaint.57 While the City informed Mr Cain that reliance was placed on the Bullying Policy to take the action it had, Mr Cain said he disputed this (noting that notwithstanding his request, a full copy of the Bullying Policy had not been provided).58

4 November Council resolution

[37] With regard to the 4 November Council resolution, Mr Cain stated Councillor Smith was involved in the SCM – despite it being evident from his bullying complaint that she was the subject of the allegations he had made. 59 Further, Mr Downing, from what could be seen of the minutes of the SCM, made the recommendation regarding the special paid leave.60 The minutes of the SCM at point 10 ‘Council Matters’ note that the author was Mr Downing, and the recommendation was to provide the CEO with special paid leave.61

Media coverage of the 4 November Council resolution

[38] Mr Cain gave evidence that his feelings of stress, embarrassment and humiliation were heightened by media coverage after the 4 November Council resolution. 62 Mr Cain observed that he was informed of the 4 November Council resolution by letter of 6 November 2019 that arrived at his home on 7 November 2019. However, Mr Cain stated on 5 November 2019, he was informed by the CEO of the City of Belmont that there had been a segment on the Channel 9 news about the reported outcomes of the SCM held on 4 November 2019.63

[39] Mr Cain provided further detail of media reports, enquiries by media outlets by phone, and the presentation of the media to his house and that of his mother. 64

City’s direction on 6 November 2019 and subsequent correspondence

[40] Mr Cain stated the letter of 6 November 2019 from Mayor Howlett informed him the City had ‘resolved’ that he not attend work or work-related matters - including addressing emails, or attending functions, events, conferences and related travel until ‘the matters’ were resolved. 65 Mr Cain said that in correspondence between his lawyers and Jackson McDonald, he argued to no avail, it was not open to the City to make such resolution.66 However, the letter of 6 November explained ‘…Council felt that it was obliged, under safety legislation to ensure that you were not required to attend work or attend work related matters until the matter had been investigated…. Consequently, I confirm that on 4 November 2019 the Council resolved to provide you with special paid leave pending the outcomes of the investigation…’.67

[41] On 15 November 2019, Mayor Howlett sent a letter to Mr Cain advising him of the appointment of an investigator, and that the investigator wanted to meet with him. 68 By email dated 18 November 2019, Mr Cain responded to Mayor Howlett, noting he was happy to assist the City with its investigation, and he had a number of questions about the conduct of the investigation and its terms of reference.69

[42] By letter of 21 November 2019, Mayor Howlett confirmed receipt of Mr Cain’s medical certificate certifying him unfit for the period 15 November 2019 to 8 December 2019. Regarding the terms of reference for the investigation, Mayor Howlett responded these had been set by the Council and the investigation would be conducted accordingly. 70 Further, the City was investigating Mr Cain’s concerns about the City not providing him with a safe working environment.71 Mr Cain had previously raised the issue of the City reimbursing him for reasonable legal costs regarding the investigation. Mayor Howlett referred Mr Cain to the relevant policy on indemnifying employees for legal costs.72

[43] On 25 November 2019, Mr Cain emailed Mayor Howlett, having copied in Mr Downing, and stated, among other matters:

Dear Logan

Further to the email I have sent this morning, I refer to that part of your letter dated 21 November 2019 concerning my legal fees and observe as follows:

1. As I have already suggested in correspondence, the investigation will not be effective without access to a lot of material that is confidential and that I do not think will be able to be accessed by the investigator, but which I have knowledge of. I need legal assistance in the investigation to help protect both me and the City from any inadvertent disclosure by me of that confidential information and in order that I can best assist the City with the matters to be investigated.

2. Further, in my experience, the investigation is not the usual workplace variety given the nature of my complaint, which concerns the conduct of elected members of the collective group of persons that runs the City (the Council of the City) which, in turn, has as its objective the provision of good government for the persons in its district. The investigation is a proceeding that has been commissioned by the City through its legal advisors, and the investigator is acting on instructions from those legal advisors, Jackson McDonald.

…

5. The City has initiated the investigation, which will necessarily involve me. There can be no suggestion that I acted improperly in making my complaint. To the contrary, I consider that I was duty bound to do so given the nature of my complaint relates to the Conduct of Elected Members.

6. Also, in light of the above matters, I consider that it would not be procedurally fair for me to have to deal with investigation without legal representation. 73 (bold my emphasis).

[44] Mayor Howlett gave evidence that, on 25 November 2019, he received an email from Mr Cain that referred to the direction not to attend work and the employment restrictions (IT/email access) as set out in the letter of 28 October 2019. Those directions predated the SCM on 4 November 2019. 74 Mr Cain sought clarification how and under what authorisation the ‘Council has requested’ the actions described in Mayor Howlett’s letter of 28 October 2019.75 The email further outlined that Mr Cain could not see any reason why he needed to await the completion of the investigation before returning to work, and he was confused by the reference to ‘special paid leave’ when he was currently on sick leave.76 Having referred to the work activities he would be unable to complete if precluded from returning to work on 9 December 2019, Mr Cain concluded the email of 25 November 2019, stating:

…I consider that such action would be adverse to me in that -

1. the inference would be that I was suspended because of conduct on my part that made it necessary for the City to ban me from the workplace;

2. such an inference would be damaging to my reputation;

3. at the same time, I would be prevented from enhancing my reputation by being able to attend to these and other matters as CEO after 9 December 2019.

The apparent reason for the City and each of the Elected Members when they made the resolution to take such adverse action against me would appear to be because of my complaint. I consider that would not be a proper reason for the taking of the adverse action by the City and the Elected Members.

[45] Mr Cain’s email dated 25 November 2019, continued at length to address:

a) the lack of notice of the SCM on 4 November 2019 (contrary to established City protocols requiring advice of any pending matter before Council to be advised to the ‘Proponent(s)/Submitters’);

b) he was not advised of the outcome of the SCM on 4 November 2019, until 6 November 2019, conduct which was inconsistent with the duty of good faith owed to him by the City;

c) his correspondence to the City dated 23 October 2019 was marked ‘Private and Legal in Confidence’ and yet details of the correspondence were referenced in the SCM agenda (which is available to the public), therefore constituting, in Mr Cain’s view, a breach of confidentiality;

d) extensive media coverage saw Mr Cain being advised of employment decisions by the media prior to any advice of the City (breach of the City’s duty of good faith owed to him);

e) Councillor Smith posted a link to the SCM agenda on her Facebook page citing ‘Special Council Meeting relating to the CEO’s allegations of an unsafe workplace and unfit to attend work’ and ‘I look forward to any investigation triggered by the CEOs unsafe workplace claims and wish him well in his mental health recovery’, this, said Mr Cain, constituted an action inconsistent with Local Government (Rules of Conduct) Regulations 2007;

f) reasons for being provided with the terms of reference;

g) restoration of full access to all of Mr Cain’s email to allow him to deal with the investigation. 77

[46] Mayor Howlett responded to Mr Cain’s email dated 25 November 2019, by letter of 28 November 2019, explaining that in his email to the Elected Members dated 23 October 2019, Mr Cain had stated that the steady increase in inappropriate behaviour towards him… had ‘evolved into a sustained process of harassment and bullying’. 78 In addition, Mr Cain had outlined the impact the behaviour and workplace environment had on him, and as a consequence the Council had, at the SCM on 4 November 2019, resolved to:

a) initiate an investigation as per the Terms of Reference contained in the legal advice attached under separate confidential cover, and consider the outcomes and advice arising from the investigation at a further Meetings; and

b) provide the CEO with special paid leave whilst the investigation takes place, on the basis that he is not to return to work or attend work related functions pending the outcomes of the investigation being considered by the Council. 79

[47] By email dated 25 November 2019, Councillor Smith asked Mr Downing: (a) for a copy of Mr Cain’s contract extension; (b) to clarify whether Mr Cain was on sick leave or special leave; and (c) for information on Mr Cain’s last medical check-up. 80 On 26 November 2019, Mr Downing appears to have provided a copy of the contract extension letter, clarified that Mr Cain was on special leave, and was unable to answer the last question asked.81 A further email from Councillor Smith read:

So because 7 out of the 10 Elected Members voted to renew the contract even though it was not up for renewal for another 12 months we now have a 5 year commitment to Mr Cain. I also note the decision ignored the recommendation of the CEO Performance review committee who agreed to look at the renewal at a later date. If for some reason we were obliged to pay Mr Cain out what would the total amount be? 82

Investigation of the bullying complaint

[48] Mr Cain stated that he understood that Jackson McDonald appointed Dr Sitlington to investigate his bullying complaint having considered the correspondence between Allion Partners and Jackson McDonald. 83 Mr Cain said he met with Dr Sitlington on 5 December 2019. However, he considered he was unable to prepare as well as he would have preferred because he had been denied access to workplace materials that would have assisted, and he was denied a copy of the Terms of Reference for the investigation.84

[49] It appears that Dr Sitlington generated a document titled ‘Particulars of Complaint’ and one titled ‘Summary of Attachments’. 85 Mr Cain expressed that Dr Sitlington’s ‘Particulars of Complaint’ is a summary of his bullying complaint but not a complete record of what was discussed.86

[50] The evidence shows that Dr Sitlington met with Mr Downing on 7 January 2020 87 and Mayor Howlett on 8 January 2020.88 Mayor Howlett gave evidence that during February 2020, Mr Downing informed him that Dr Sitlington had provided a report to Jackson McDonald who were in the process of reviewing that same report and preparing written legal advice on the Doctor’s findings and what actions the City could take in response.89

[51] Mr Downing gave evidence that the bullying investigation was completed, Dr Sitlington prepared an initial report and a supplementary report, 90 and those reports were provided to him from Jackson McDonald on or about 3 March 2020. On 4 March 2020, Mayor Howlett sent to Mr Downing a letter calling for a SCM on 11 March 2020.91 The SCM occurred on the proposed date, and whilst most Councillors were in attendance, Councillor Smith was not, due to her suspension issued by the State Administrative Tribunal for two months from 3 February 2020 to 3 April 2020.92

[52] Regarding the instructions provided on behalf of the City to its lawyers, Mr Downing stated he had, in all meetings with the City’s legal advisors, included at least another representative of the City – predominately a Mr Don Green, and in his absence, Mr Arndt. 93 Mr Downing explained that he wanted other members of the Executive Team involved in instructing the City’s legal advisors and considering their advice to demonstrate it was not only him as the Acting CEO engaging lawyers in this matter, but him on behalf of the City with the support of the key members of the Executive Team.94

Attempt to return to work

[53] By email dated 28 November 2019, Mr Cain informed Mayor Howlett there was no proper basis for the Council to place him on special paid leave under his contract – and again referred to such conduct being improper and adverse action against him because of his complaint. 95 In short, Mr Cain’s grievances included among others:

a) there was no basis for Mayor Howlett to purport to enforce a Council resolution by directing Mr Cain to adhere to it; and

b) there was no proper basis for the Council to make the resolution in the first place – there being no concept of special paid leave under Mr Cain’s employment contract, therefore a direction to stay away from work and not attend work related matters pending completion of the investigation would be improper as that would constitute adverse action because of his complaint.

[54] Mr Cain noted in his email of 28 November 2019, that as he had not been suspended from duty, he would be attending for work on Monday, 2 December 2019, at 9.00am, to perform his usual duties. 96

[55] Mr Cain gave evidence that the City’s Executive (including Mr Downing), informed him, in substance, they felt bound to follow the Council’s direction and that, therefore, they and his staff would be unavailable to work with him if he returned. 97 Mr Cain said that he did not return to work.98

The outcome of the bullying complaint

[56] Mr Cain said that he understood from a letter of 12 March 2020 authored by Jackson McDonald to Allion Partners that Dr Sitlington completed a report on her investigation at a time that was unknown to Mr Cain. 99 The report was said to have been presented to the Council at a SCM on 11 March 2020.100 On 9 March 2020, Mr Cain discovered on the City’s website that a SCM was to be held 11 March 2020. Having found that a SCM was to be held, he made a request, via the City’s on-line process on 9 March 2020 to make a deputation to that meeting.101 The request was declined by Mayor Howlett and communicated to Allion Partners by Jackson McDonald.102

[57] The letter of 12 March 2020, confirmed that Dr Sitlington’s investigation report was presented to Council for consideration at the SCM on 11 March 2020. 103 The letter set out that the Council had passed the following resolutions at the SCM:

That Council:

1) receive the report;

2) adopt and implement the following initiatives as recommended by Jackson McDonald:

1. Arrange training for the elected members (to be conducted upon Cr Lee-Anne Smith's return from suspension) focussed on building an appropriate employee / elected member relationship framework and training on the issue of workplace bullying (to be undertaken by elected members and the executive of the City);

2. Note any recorded past allegations of inappropriate conduct by Cr Lee-Anne Smith, to determine whether anything needs to be reported to the Standards Panel, is to be examined by the Complaints Officer;

3. Review the Elected Member Code of Conduct and amend any content to clarify acceptable levels of conduct when dealing with employees of the City, noting that this is an interim measure pending the introduction of a mandatory Code of Conduct to be included in the Local Government Act 1995;

4. Review the Elected Member Communications Policy to clarify acceptable levels of conduct between elected members and employees when communicating on matters related to the functions of the City of Cockburn;

5. Appoint the Director, Governance and Community Services to be its Complaints Officer in accordance with Section 5.120(1) of the Local Government Act 1995 (LG Act);

3) once the City has initiated steps to implement these recommendations, the Mayor is to provide written notice to the CEO of the measures that the City is implementing to meet its obligations under the Occupational Safety and Health Act 1984, and any other statutory requirements;

4) update the Crime and Corruption Commission (CCC) and Department of Local Government, Sport and Cultural Industries (DLGSCI) that:

1. The Sitlington Investigation has concluded;

2. The City is considering what measures will be implemented to meet its obligations under the OSH Act and other statutory requirements;

5) provide a copy of the reports and advices to the CCC and DLGSCI on the basis that legal privilege is retained by the City by ensuring that these agencies use relevant powers to seek the reports and advices.

6) provide direct Human Resources and workplace support to the CEO, on request;

7) provide written clarification on the responsibilities of the CEO under the Local Government Act in managing the behaviour of Elected Members;

8) request the CEO to initiate a review of the role and responsibilities of the CEO position to determine whether the job can be redesigned, or workload distributed and provide a report of the review to the Chief Executive Officer Performance & Senior Staff Key Projects Appraisal Committee Meeting in July 2020;

9) conduct a mentoring exercise between the CEO and all elected members within two (2) months to ensure an understanding of the roles of all parties;

10) conduct a mentoring exercise between the CEO and the Mayor to ensure the liaison role between these two positions (as specified in Sections 2.8(1)(f) - Role of the Mayor) and 5.41 (e) of the LG Act) are clearly identified and understood;

11) review the functionality of briefing sessions to ensure that protocols and guidelines are clearly understood and implemented. 104

Allegations of misconduct against Mr Cain

[58] Mr Downing gave evidence that around 20 November 2019, the City became aware of potential allegations of misconduct against Mr Cain. 105 However, before this date some enquiries had ensued.

[59] According to Mr Downing, on 11 November 2019, the online edition of the West Australian published an article regarding Mr Cain and included was a link to pictures of two pages (Newspaper Document). 106 The article was subsequently reposted on the Facebook pag of Councillor Smith.107 Mr Downing stated that around 11 November 2020, he was asked by Elected Members if he knew who had leaked the statement of Mr Cain (Newspaper Document).108

[60] On or around 20 November 2020, Mr Downing, with others from the City, had a conference call with Jackson McDonald and it was noted the document in the link in the West Australian was not the same as the complaint sent by Mr Cain to Elected Members on 23 October 2019 and copied to the Directors of the City. 109 Mr Downing asked a Mr McKinley to compare the two versions – Mr Cain’s bullying complaint dated 23 October 2019 with the Newspaper Document. Mr McKinley surmised that the Newspaper Document appeared to be a draft of the formal complaint emailed on 23 October 2019.110 In following this up, Mr Downing thereafter instructed Mr Fellows, the City’s Manager of Information Services, to check the City’s systems to see whether it was only the ‘Council Version’ of the Mr Cain’s complaint that had been sent to Elected Members as opposed to the Newspaper Document.111

[61] Having conducted a search of Mr Cain’s emails, it was identified that on 23 October 2019, Mr Cain had sent an email to persons working at other local government locations such as Swan, Kalamunda, Rockingham and Gosnells informing them of his leave of absence due to ‘[S]ustained harassment and personal attacks, in fighting within the EM group along with constantly dealing with the Standards Panel complaints’. 112

[62] According to the evidence given at hearing, Mr Downing had received feedback that an external consultant reported Mr Cain had been at a work-related event whilst on special paid leave. 113

[63] Mr Downing gave evidence that he and Mr Green sought advice from Jackson McDonald about these matters (the three above matters) and advised Elected Members of them. Mr Downing said that he did so, because as Acting CEO, he believed he was required to notify Council of potential allegations of misconduct that had come to his attention.

[64] In response, Mayor Howlett called for a SCM on 4 December 2019. At the SCM, the Council resolved to put three allegations of misconduct to Mr Cain, to suspend him on pay and to engage an independent investigator to investigate the misconduct allegations (the December Resolution). 114

[65] The evidence of Mr Downing aligns with that of Mr Cain, who said that he received a letter of 6 December 2019 from Mr Downing informing him of three allegations of misconduct against him. 115

[66] A further letter of 12 December 2019, was provided to Mr Cain, setting out the particulars of the allegations of misconduct. 116 The first allegation concerned the email dated 23 October 2019, a version of which Mr Cain was alleged to have provided to another person, including but not limited to a person involved in the media.117 The letter of 12 December 2019, set out that a newspaper article, in the online edition of the West Australian newspaper published a story titled ‘Cockburn CEO Stephen Cain’s bombshell email to councillors reveals cause of stress leave’, included in the story were pictures of two pages (Newspaper Document).118

[67] While the letter of 12 December 2019 acknowledged that the Newspaper Document was not the email of 23 October 2019, several observations were made that included that the Newspaper Document appeared to be a revised version of the email dated 23 October 2019. 119 A further observation was that the Newspaper Document had a handwritten annotation highlighting a spelling mistake regarding the word ‘though’ – the email dated 23 October 2019 read ‘through’. It was, in addition noted, the Newspaper Document had the name Stephen Cain in the top left-hand corner of the document. The letter continued, ‘when a person prints an email or draft email displayed in his/her email viewer (e.g. Outlook), his/her name is printed in the top left-hand corner of the email.120

[68] The second allegation set out that Mr Cain had sent an email titled ‘Leave of Absence – In Confidence’ dated 23 October 2019 to other local government CEOs. 121 The third, that Mr Cain had attended a NGAA National Congress Conference on or about 10 November 2019 whilst on special paid leave and that he was instructed not to attend work or any work-related matters at this time.122

[69] Mr Cain was informed via the letter of 12 December 2019, a Mr Brendan Cusack of Cygnet Workplace Investigations would investigate the allegations. Mr Cusack had been engaged by Jackson McDonald. 123

[70] For various reasons, the workplace investigation into Mr Cain’s misconduct appears to have been on foot for a couple of months. During December 2019 and January 2020, two scheduled interviews were arranged for Mr Cain to meet with Mr Cusack. With regard to the interview scheduled for 20 December 2019, Allion Partners informed Jackson McDonald on the morning of the interview that Mr Cain would not be attending. 124 They asked for the meeting to be rescheduled the week commencing 6 January 2020 as the Allion Partners office was closing down for Christmas.125 While a second interview was scheduled for early January 2020, Mr Cain did not attend, citing that the direction to attend the interview was not a lawful and reasonable direction.126

[71] By letter of 17 January 2020, Allion Partners informed Mr Cusack that ‘[W]e did not consider that it was necessary for us to do anything more than that because, as noted in our letter, on behalf of our client, we have corresponded with Jackson McDonald, the lawyers for the City of Cockburn, in relation to this matter. Included in that correspondence is our client’s position on the issues pertaining to the allegations that have been levelled against him by the City’.  127 The letter referred to in the correspondence to Mr Cusack, appears to be the letter authored by Allion Partners of 12 December 2019, in which responses were provided to the three allegations.128

Media coverage of the allegations of Mr Cain’s suspension

[72] On 12 December 2019, Mr Cain said that he read an article in ‘The West” with the headline ‘The Wash-Up on the Suspended CEO’. The article was sub-headed ‘Council fat cat on $380k “not back at work until 2020”’. 129 Mr Cain stated that the article disclosed information that had been discussed in at the SCM on 4 December 2019.130

Contacting Elected Members and a draft workplace bullying application

[73] Mr Downing gave evidence that Mr Cain was provided with a direction from Council that he not contact any of the Elected Members during the workplace investigation. 131 However, Mr Downing stated he was aware that during the investigation, Mr Cain’s legal representatives made contact with Elected Members on several occasions.132 On 8 January 2020, Allion Partners sent copies of a draft bullying application that was proposed to be filed in the Fair Work Commission, to Councillors Kirkwood, Terblanche, Eva, Separovich, Stone, Corke and Widdenbar and thereafter on 10 January to Mayor Howlett and Councillor Allen.133

[74] Mr Downing stated Mr Cain also instructed Allion Partners to write to him on 10 January 2020 attaching a draft bullying application. 134

[75] The draft bullying application received by Mr Downing described, at Attachment B, the behaviour that Mr Cain considered constituted bullying – levelled at Councillor Smith, Councillor Allen, Mayor Howlett and Mr Downing:

1. Harassment of the applicant by the respondents including by, without limitation, failure by the respondent, Mr Stuart Downing, to abide by the City’s Council Meeting policy in not providing the applicant with advice of the conduct of a Special Council Meeting on 4 November 2019 that was specifically in relation to the applicant; and failure to notify the applicant of the outcomes of that Special Council Meeting until after it had been extensively covered by the media.

2. Derogatory and defamatory comments by the respondents Councillor Smith and Councillor Allen.

3. Breaches by the respondents Councillor Smith and Councillor Allen of the City of Cockburn’s Elected Members Code of Conduct and the Elected Members Communication Policy.

4. Failure by Mayor Howlett to liaise as required with the applicant concerning breaches by Councillors of the City of Cockburn’s Elected Members Code of Conduct.

5. Denial of procedural fairness by the City of Cockburn by failing to ensure that the respondents Councillors Smith and Allen refrain from discussing and considering and/or determining the applicant’s bullying complaint.

6. By reason of the matters set out in the preceding paragraph, failure by the City of Cockburn to comply with its Bullying Policy.

7. Unlawful and/or unreasonable direction by the City of Cockburn to the applicant to take purported ‘special paid leave’ even though the applicant was then on authorised sick leave.

8. Imposition of a ban by the City of Cockburn on the applicant from attending work-related functions and events because of the unlawful and/or unreasonable direction by the City of Cockburn to the applicant to take purported ‘special paid leave’.

9. Denial by the City of Cockburn of the applicant’s access to workplace email on the basis f the unlawful and/or unreasonable direction by the City of Cockburn to the applicant to take purported ‘special paid leave’.

10. Denial by the City of the applicant’s access to the workplace on the basis of the unlawful and/or unreasonable direction by the City of Cockburn to the applicant to take ‘special paid leave’.

11. By reason of one or more of the matters set out in paragraph 7,8,9 and 10 above, breaches by the City of Cockburn of the contract of employment between it and the applicant.

12. Denial of procedural fairness by the City of Cockburn in denying the applicant access to documentation necessary to allow his proper participation in the investigation into his bullying complaint.

13. Allegations of misconduct made by the City of Cockburn against the applicant because he made the bullying complaint.

14. Baseless allegations of misconduct made against the applicant.

15. Substitution of fresh allegation of misconduct against the applicant without proper authorisation of such by the Council of the City of Cockburn.

16. Knowing involvement of the respondent Stuart Downing with the actions complained of by the City of Cockburn.

17. Failure by Councillors Smith and Allen to refrain from discussing and considering and/or determining the applicant’s bullying complaint and the allegation of misconduct levelled against the applicant.

18. Failure by the City of Cockburn to engage in mediation as required by cl.15.1 of the contract of employment made between it and the applicant. 135

[76] Covering letters to the draft workplace bullying applications directed to Councillors Allen and Smith, Mayor Howlett and Mr Downing set out that they were to let Allion Partners know by close of business on 15 January 2020, whether they wished for Allion Partners to personally serve them with the final application document. Evidence given by the four aforementioned persons, was that they did not receive a final application document until such time as an application was filed with this Commission on 6 April 2020.

Pending SCM in April 2020

[77] Mr Cain gave evidence that in a telephone conversation on 7 April 2020 with Ms Julia Klobas, a former employee of the City who held the position of Personal Assistant to Mr Cain, he was informed that she had been told by Councillor Smith on 6 April 2020 that another SCM was being called ‘for next week’. Mr Cain said he had not received any notice from the City and was otherwise unaware of any such proposed SCM. 136

Legislative framework

[78] The Commission is established by the Act and derives its powers from the same. It is not a Court of record. Its functions are set out in s.577 and the matters it is required to take into account in performing its functions are prescribed in s.578.

[79] In Re George 137 the jurisdiction of the Commission was further examined. The relevant paragraphs at [30] –[32] are extracted below:

[30] I would also accept that the Commission might need to form some views about the apparent legal validity of various decisions and actions in order to determine its jurisdiction to deal with matters. For example, assuming the Commission otherwise had jurisdiction, this could include forming a view about whether the conduct of the parties in light of the purported resolutions was unreasonable so as to potentially form part of findings relevant to s.789FD of the FW Act – whether there has been bullying conduct. In forming those views, even on these and other legal questions, the Commission is not exercising judicial power.

[31] For this and other purposes, the Commission may also have regard to legislation made by State Parliaments, in this case South Australia, and other instruments, and determine relevant legal and factual issues provided they properly arise within a jurisdiction established by the FW Act.

[32] However, even when the Commission needs to form a view on a legal question in order to find or exercise its jurisdiction in matters of this particular nature, those views do not of themselves actually declare the legal rights more generally. For example, the Commission could not conclusively determine for purposes beyond its jurisdiction whether the SGM and SEM, were at law validly convened or whether the apparent resolutions were at law validly passed and complied with the various requirements of the APY Act. Ultimately, only a Court of competent jurisdiction (a Court of record) could make a binding declaration on those matters.

[80] Part 6-4B of the Act sets out the provisions which are in part, relevant to the application. Included is s.789FC, which prescribes who may make an application for an order to stop bullying:

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.

[81] The Act provides some clarification as to when one considers a worker has been ‘bullied at work’:

789FD When is a worker bullied at work?

(1) A worker is bullied at work if:

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

(i) an individual; or

(ii) a group of individuals;

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

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

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

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

(a) the person is:

(i) a constitutional corporation; or

(ii) the Commonwealth; or

(iii) a Commonwealth authority; or

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

(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;

then the business or undertaking is a constitutionally-covered business.

[82] There is of course a necessity for a relevant future risk concerning the bullying behaviour, which is addressed in the prerequisites that exist for the Commission to make an order, established by s.789FF:

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.

(2) 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

Jurisdiction - ‘constitutionally covered business’

[83] It is evident that Part 6-4B is enlivened in circumstances where the worker is at work in a ‘constitutionally-covered business’ Before turning to consider the term ‘at work’, I note that it was uncontentious that Mr Cain is a ‘worker’ who works in a ‘constitutionally covered business’ and is able to make an anti-bullying application under Part 6-4B of the Act. However, given the employer is the City of Cockburn, and for completeness, the point regarding a ‘constitutionally covered business’ is considered further.

[84] The workplace in this matter is not located in a Territory and there is no suggestion that it is conducted by the Commonwealth or a Commonwealth authority. Assuming, for present purposes, that the workplace is a business or undertaking within the meaning of the Work Health and Safety Act 2011 (Cth), in order to be a constitutionally-covered business and fall within the scope of s.789FD, it must be conducted by a constitutional corporation.

[85] The term ‘constitutional corporation’ is defined in s.12 of the Act in the following terms: ‘constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies’. The Australian Constitution refers to ‘constitutional corporations’ as being: ‘[F]oreign corporations, and trading or financial corporations formed within the limits of the Commonwealth’. Of these types of corporations, only the trading corporation is potentially relevant.

[86] The Full Bench in Gregory James Thurling v Glossodia Community Information and Neighborhood Centre Inc. T/A Glossodia Community Centre 138 provided a comprehensive overview of the law on whether a corporation is a trading corporation, starting with the extraordinarily helpful summary provided by Steytler P in the Western Australian Court of Appeal decision in Aboriginal Legal Service (WA) Inc v Lawrence (No 2).139

[87] The principles outlined in those abovementioned authorities have been adopted and applied when arriving at the conclusion that the City is a constitutional corporation. The evidence relied upon to draw such conclusion included the City’s activities of leasing land and commercial premises, an agreement on royalties from a small power station, a marina (that charges commercial fees), and a commercial landfill that included a re-cycled goods shop. 140 Mr Cain’s evidence was that the operating income was purported to be $157 million for the period 2019/2020 as stated in the City’s Annual Business Plan for 2019/2020, of which fees and charges are budgeted to be $29.36 million (about 18.7% of income).141

The orders sought

[88] Mr Cain first articulated his bullying complaint in his email to Elected Members on 23 October 2019 and his letter to Mayor Howlett of 24 October 2019. The correspondence is detailed and specific. The 24 October 2019 letter included numerous attachments.

[89] Neither email nor letter suggested that Mr Cain had any concerns about his treatment by Mr Downing, Mayor Howlett or Councillor Allen at the time he sent those letters. However, in his application, Mr Cain now contends that Mayor Howlett’s failure to ‘manage’ the Elected Members was an ongoing historical issue and that Councillor Allen had made inappropriate remarks dating back to 2010.

[90] With respect to Mr Downing, Mr Cain states that it can be inferred that as the Acting CEO at all times material to the application, Mr Downing was the person who had taken action against Mr Cain purportedly in the name of the City. The contention thereafter being, Mr Downing’s behaviour could not be characterised as reasonable management action.

[91] One of the prevailing issues that Mr Cain appeared to have with Mayor Howlett, Councillor Allen and Councillor Smith, the triumvirate of Elected Members, was their continued participation in the meetings and affairs of the Council in circumstances where they had a conflict of interest – either actual or perceived, because of the bullying complaint levelled against them. Clearly, this is a tongue in cheek synopsis and an oversimplification of the multitude of behaviours complained of, which are detailed at paragraphs [150] – [212] of this decision.

[92] In short, Mr Cain contends he has been bullied at work and there is a risk he will continue to be bullied at work by the named respondents. Mr Cain sought interim orders, but if interim orders were unavailable, he also sought final orders.

Interim orders

[93] Mr Cain applied for interim orders claiming that, unless such orders were made, the named Respondents in the matter would continue to be involved in, and thereby be able to promote, the taking of disciplinary action against him by the Council, including the termination of his employment, which would render a nullity the relief sought by him.

[94] Some four and a half months after Mr Cain made his bullying complaint, the Council determined certain outcomes from an investigation into that matter by Dr Sitlington (see paragraph [56] of this decision). It was Mr Cain’s view that such outcomes did not appropriately deal with the risk that he will continue to be bullied at work by each of the named Respondents.

[95] At the time of the hearing, the Council had yet to determine the outcome of the misconduct investigation. However, a meeting of the Council was scheduled for 16 April 2020 for this purpose. Mr Cain observed that the named Respondents had variously been involved in determinations by the Council of matters concerning him since he made his bullying complaint, including the allegations of misconduct that were subsequently levelled against him. Mr Cain submitted that the four Respondents should not be so involved in the Council meeting scheduled for 16 April 2020.

[96] In circumstances where the Commission did not accept that it had the power to make interim orders unless first satisfied that Mr Cain has been bullied at work and there is a risk that he will continue to be bullied at work, Mr Cain submitted the Commission could be satisfied of these matters - on the findings of fact which were open to be made, and which should be made.

[97] With respect to the Commission’s power to make the interim orders sought, Mr Cain submitted that the Commission had jurisdiction and power under ss.589(2), 595(3) and 789FF of the Act. Referring to the decision of the Full Bench in South Eastern Sydney Local Health District v Lal 142 (South Eastern), Mr Cain submitted that in that decision there was no disagreement between the parties that the test for interim orders was whether there was a serious question to be tried and the balance of convenience favoured the grant of the orders.143

[98] Regarding the source of such power, it was said that s.589(2) empowered the Commission to make an interim order in relation to a matter before it. Mr Cain contended, in this case, the ‘matter’ was the controversy of whether he had been bullied at work and whether there is a risk he will continue to be bullied at work, in which case the Commission may make any order that it considers appropriate.

[99] A proper construction of s.589(2) of the Act, submitted Mr Cain, did not require that any part of the matter be determined by the Commission before its power is enlivened to make an interim order. Rather, s.589(2) is enlivened once there is a matter before the Commission. If there is such a matter, the Commission can make an interim order in relation to that matter.

[100] It was observed that s.589(2) appears in the context of Subdivision B of Part 5-1 of the Act concerning the conduct of matters before the Commission. The Commission’s discretion to make an interim order pursuant to s.589(2) is not limited to a consideration of any particular matters. Section 577(a) provides that the power must be exercised in a manner that is fair and just. Section 789FE requires the Commission to start dealing with an application made under s.789FC within 14 days, which has been done.

[101] On that basis, advanced Mr Cain, properly construed there is no requirement under the Act that the Commission be satisfied that Mr Cain be bullied at work and that there is a risk that he will continue to be bullied at work before it can exercise its power to make interim orders under s.589(2).

[102] In the decision of Lynette Bayly 144 (Bayly), Ms Bayly applied for an interim order effectively preventing the respondents from continuing with a workplace investigation into her conduct, and from taking disciplinary action against her pending the determination of the application made under s.789FC. The interim order was sought under s.589(2). The respondent argued, in part, that the Commission had been asked to prospectively injunct the employer from possibly dismissing Ms Bayly. That is, the Commission was being asked to essentially use the anti-bullying jurisdiction to step in and prevent a possible adverse action, without consideration as to whether the dismissal was justified.

[103] Having considered ss.789FC, 789FD, 789FF, and the Fair Work Amendment Bill 2013 Revised Explanatory Memorandum, the observations of the Commissioner can be reduced to the following:

a) there are two prerequisites to the making of substantive orders in matters of this kind. Firstly, a finding that the worker has been bullied at work by an individual or a group of individuals; and secondly, that there is a risk that the applicant worker will continue to be bullied at work by the individual or group concerned; 145

b) where there is no risk that the applicant worker will continue to be bullied at work by the individual or group concerned, there is no prospect that the s.789FC application can succeed; 146

c) any orders must be directed towards the prevention of relevant future unreasonable conduct and be informed by, but not necessarily limited to, the prior unreasonable conduct as found. However, any orders must deal with the actual future risk, based upon appropriate findings, and having regard to the considerations established by s.789FF(2) of the Act. 147

[104] Before considering the applicable legal principles regarding interim orders under s.589(2), the Commissioner in Bayly noted that whether the Commission was empowered to make an interim order in connection with a s.789FC application was not contentious and therefore proceeded on that basis. 148

[105] The Commissioner adopted the principles set out in Quinn v Overland (Quinn) as cited in the decision of Australian Manufacturing Workers’ Union v WW Wedderburn Pty Ltd (Wedderburn). 149 In Quinn, Bromberg J explained that an application for interlocutory relief required the consideration to address two main inquiries. The first, whether the applicant has made out a prima facie case in the sense that if the evidence remains as it is, there is a probability that at the trial of the action the applicant will be entitled to relief.150 The second, whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted.151 When considering whether there was a prima facie case and the balance of convenience, the Commissioner said regard was to be had to the substantive application , the jurisdictional context of the application, and the circumstances of the parties.152

[106] The Commissioner in Bayly observed that the approach taken in Wedderburn was on all fours with that adopted by the Deputy President in Worker A, Worker B, Worker C, Worker D and Worker E v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and others listed in Schedule A, 153 a decision which similarly involved issuing interim orders in a s.789FC anti-bullying application.

[107] Counsel for Mr Cain correctly acknowledged that, in the Full Bench decision of South Eastern, the question of whether the conditions in s.789FF(1)(b) required satisfaction prior to the making of an interim order did not arise for consideration in the appeal. 154 The appellant had accepted in its appeal that the appropriate test to be applied was whether the application gave rise to a serious question to be tried and the balance of convenience.

[108] However, in the recent decision Leanne Mayson v Myland Health Pty Ltd and others (Mayson) 155 the Deputy President rejected a contention that s.589(2) was a discrete source of power that enabled the making of an interim anti-bullying order, and that the requirements of s.789FF need not be met. He effectively conceptualised the argument before him as a question as to whether s.589(2) enabled the Commission to issue an administrative ‘interim’ injunction in relation to any matter that might be before it, despite what the substantive provisions in question might say about the Commission’s jurisdiction.

[109] Acknowledging that there had been a number of matters in which applications seeking interim anti-bullying orders in the nature of an administrative injunction have been successful, on the basis that the applicant has established a serious question to be tried, together with a favourable balance of convenience (see the aforementioned decisions), the Deputy President observed that it did not appear from those cases that there was any argument about the jurisdictional question. The parties proceeded on a common assumption about the Commission’s power under s 589(2) in the context of an anti-bullying application.

[110] The salient passages are found at the commencement of the consideration in Mayson, they read:

[17] Section 589(2) states that the Commission ‘may make an interim decision in relation to a matter before it.’ It is not an independent source of power to issue interim orders, whether in the nature of interlocutory administrative injunctions or any other temporary decision. Absent a particular ‘matter before it’, the Commission has no power to do anything at all under s 589(2). To the extent that it might be contended that s 589(2) can be used in respect of any ‘dispute’ that might be referred to the Commission, s 595 makes clear that the Commission may deal with a dispute ‘only if (it) is expressly authorised to do so under or in accordance with another provision of this Act.’ Section 589(2) is not such a provision.

[18] The ‘matter’ now before the Commission, for the purpose of s 589(2), is an application made under s 789FC. That application alleges that a worker has been bullied at work. It seeks an order under s 789FF to prevent a worker from being bullied by an individual or group. Any order I make in relation to this application will be an order under s 789FF. The relevant requirements of that section must be satisfied. 156

[111] Having had the opportunity to hear from Counsel for Mr Cain and Counsel for Mr Downing and the City, on whether the Commission had jurisdiction to make interim orders in this matter as requested, I decided it did not, and in doing so I have followed the reasoning of the Deputy President in Mayson.

[112] As was the case in Mayson and for the reasons explained therein, I am not persuaded that s.589(2) is a discrete source of power that enables the making of an interim anti-bullying order, and that the requirements of s.789FF of the Act need not be met.

[113] Section 789FC of the Act provides that a worker who reasonably believes that he or she has been bullied at work may apply to the Commission for an order under section 789FF. I note in this respect, I was satisfied that Mr Cain held such reasonable belief – as will be traversed later.

[114] Section 789FD sets out that which is meant by the phrase ‘bullied at work’. That a person who has made an application has been bullied at work by an individual or a group of individuals is one of the matters about which I must be satisfied before considering whether to exercise my discretion to make an order to stop bullying under s.789FF.

[115] As s.789FF(1)(b) makes clear, I must be satisfied not only that Mr Cain has been bullied at work by an individual or group of individuals but also that there is a risk that he will continue to be bullied at work by that individual or group of individuals.

[116] Therein lays the difficulty for Mr Cain. It seems to me that I have no power to make an order – whether interim or final, to stop bullying, unless I can be satisfied of the two limbs in s.789FF(1)(b). Relevantly I must be satisfied not only that Mr Cain has been bullied at work by an individual or group of individuals but also that there is a risk that at work Mr Cain will continue to be bullied by the individual or group of individuals identified in his application.

[117] From what I have said, it necessarily follows that I do not have jurisdiction to make an interim order to stop bullying –unless the relevant requirements of s.789FF are satisfied. 157

Section 789 FF

[118] Section 789FF of the Act includes three preconditions on the making of an order to stop bullying. They are:

a) the worker made an application pursuant to s.789FC (s.789FF(1);

b) the Commission is satisfied that the worker has been bullied at work (s.789FF(1)(b)(i)); and

c) there is a risk that the worker will continue to be bullied at work (s.789FF(1)(b)(ii)).

[119] Mr Cain advanced that the Commission could be satisfied that Mr Cain had been bullied at work and there is a risk that he will continue to be bullied at work, based on findings of fact that are open to be made, and which he contends should be made.

Reasonable belief - s.789FC(1)

[120] For this type of application, an applicant must ‘reasonably believe’ that she or he has been bullied at ‘work’. For the belief to be considered ‘reasonable’, it must be one that is actually and genuinely held, as well as it being reasonable in an objective sense. 158 When speaking of an ‘objective sense’ it has been said that this in turn means ‘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’.159

[121] In the decision of Mac v Bank of Queensland Limited & Others 160 (BOQ), the Vice President expressed that 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.

[122] In BOQ, the Vice President referred to the belief of being bullied at work being a ‘reasonable belief’ in the sense it has something tangible to support it and is not entirely irrational, absurd or ridiculous. 161 The reference to ‘tangible’ would appear to import that a reasonable belief is one where there is perceptible evidence to support the belief. That is, the belief is not illusory. Further, if the belief is to be reasonable then its premise ought to be one of logic.

[123] In this case, it did not appear to be in issue that Mr Cain held a reasonable belief. The bullying conduct complained of in respect of the three Elected Members and Mr Downing was exhaustively detailed with references to what had been said, and in some circumstances the provision of direct evidence which was said to support the occurrence of the conduct complained about. It was therefore the case that I found little difficulty arriving at the conclusion that the requisite belief was held.

‘At work’ – s.789FF

[124] Section 789FF requires that the bullying occur ‘at work’. In the context of whether the term ‘at work’ extended to circumstances of suspension or personal leave there had, according to Mr Downing and the City, been limited consideration by the Commission. However, Counsel for both Mr Cain and Mr Downing noted the observation of the Vice President in BOQ, 162 where in obiter dicta he stated at para [149]:

…it has not been necessary for me to determine whether all of the pleaded instances of behaviour occurred while Ms Mac was “at work”, although if it was necessary for me to do so, I would have found that many if not all of the instances of behaviour dating after Ms Mac went off work because of illness on 7 March 2014 did not occur “at work”.

[125] The City and Mr Downing similarly directed the Commission’s attention to the decision of Richardson v Optus Retailco Pty Ltd & Ors, 163 (Richardson), which dealt with a s.789FC application. In Richardson it was said that there appeared to be no possibility of a risk of future bullying at work by the named individuals because the applicant in that case was not presently at work, having being stood down pending the outcome of the disciplinary process arising from a co-worker’s complaint.164

[126] The gravamen of the argument for the Mr Downing and the City, was that after 24 October 2020, Mr Cain was not attending work, was not accessing his work email due to restrictions and not attending work related events. Therefore, it was reasonable to infer for the purposes of s.789FF(1)(b)(i) that Mr Cain was not ‘at work’ from 24 October 2019 until the day of the hearing.

[127] The question of when a worker is ‘at work’ in a constitutionally-covered business was considered at length in the Full Bench decision of Bowker v DP World Melbourne Limited & Ors (Bowker). 165 The conclusions reached by the Full Bench were as follows:

[48] We have concluded that the legal meaning of the expression ‘while the worker is at work’ certainly encompasses the circumstance in which the alleged bullying conduct (ie the repeated unreasonable behaviour) occurs at a time when the worker is ‘performing work’. Further, being ‘at work’ is not limited to the confines of a physical workplace. A worker will be ‘at work’ at any time the worker performs work, regardless of his or her location or the time of day. As we have mentioned, the focal point of the definition is on the worker (ie the applicant). The individual(s) who engage in the unreasonable behaviour towards the worker need not be ‘at work’ at the time they engage in that behaviour.

[49] While a worker performing work will be ‘at work’ that is not an exhaustive exposition of the circumstances in which a worker may be held to be at work within the meaning of s.789FD(1)(a). For example, it was common ground at the hearing of this matter that a worker will be ‘at work’ while on an authorised meal break at the workplace and we agree with that proposition. But while a worker is on such a meal break he or she is not performing work. Indeed by definition they are on a break from the performance of work. It is unnecessary for us to determine whether the provisions apply in circumstances where a meal break is taken outside the workplace.

[50] In our view an approach which equates the meaning of ‘at work’ to the performance of work is inapt to encompass the range of circumstances in which a worker may be said to be ‘at work’.

[51] It seems to us that the concept of being ‘at work’ encompasses both the performance of work (at any time or location) and when the worker is engaged in some other activity which is authorised or permitted by their employer, or in the case of a contractor their principal (such as being on a meal break or accessing social media while performing work).’

[128] In Purcell v Farah and Mercy Education Ltd T/A St Aloysius College, 166 (Purcell) the Deputy President observed that the Full Bench rejected a submission that conduct occurs ‘at work’ merely because it has a substantial connection to work.  The Deputy President acknowledged that the Full Bench recognised the difficulty in delineating the boundaries of what is meant by the words ‘at work’ in s.789FD(1)(a), saying that the approach to this should be developed over time on a case by case basis. The Deputy President went on to cite the Full Bench in Bowker, who said:

[53] In most instances the practical application of the definition of ‘bullied at work’ in s.789FD will present little difficulty. But there will undoubtedly be cases which will be more complex, some of which were canvassed during the course of oral argument. For example, a worker receives a phone call from their supervisor about work related matters, while at home and outside their usual working hours. Is the worker ‘at work’ when he or she engages in such a conversation? In most cases the answer will be yes, but it will depend on the context, including custom and practice, and the nature of the worker’s contract. 167

[129] As was the case in Purcell, this case raises a complex issue of whether Mr Cain was ‘at work’ at the material times. Mr Cain relies upon certain behaviours of Mr Downing, Mayor Howlett, Councillor Smith and Councillor Allen, to substantiate his claim that he has been bullied. However, it can be argued that Mr Cain was not ‘at work’ from 23 October 2019 until the date of the hearing, as he was on personal leave, then special paid leave, and thereafter suspended on pay.

[130] It should be noted at this point, there is no issue regarding Mr Cain having been ‘at work’ for the purpose of the complaints outlined in the email dated 23 October 2019 and the letter to Mayor Howlett of 24 October 2019. Further, particulars in the application that refer to the increasing isolation of Mr Cain by Mayor Howlett since about 2010, and an increasing workload since 2017, are behaviours, that in my view, similarly occurred at work. That is not where the issue lies.

[131] In Bowker, the Full Bench appreciated the difficulty with confining the term ‘at work’ to simply the ‘performance of work’. The Full Bench stated that ‘at work’ encompassed situations where the worker was also engaged in some other activity which is authorised or permitted by their employer.

[132] Yet arguably there will be circumstances where a worker is ready, willing and able to work, remains in receipt of their salary, but is unengaged in work ‘activity’ having been instructed not to do so. Examples that come to mind include where a workplace enquiry is on foot and the worker is instructed not to attend work for its duration. A worker may have been suspended pending an enquiry into allegations against them, or they may have been placed on special paid leave notwithstanding they are medically certified fit for work by their general practitioner. However, in the circumstances referred to, one would anticipate that the employer or otherwise, may reserve the right to further direct the employee to attend interviews or meetings or otherwise respond to what is asked of them or directed. That is, the employee is required to remain ready, willing and able to work. These circumstances differ markedly to those where the worker is unable to work (for example whilst on personal leave), or is not ready, willing and able to work.

[133] The principles governing statutory interpretation are well known and therefore I will not repeat them at length. In Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 168 the Full Bench described the contemporary approach to statutory construction and emphasised the importance of the purposive approach, noting the requirements of s.15AA of the Acts Interpretation Act 1901 (Cth). Suffice to say, words of a statute are construed according to their ordinary meaning having regard to their context and legislative purpose. Context includes the existing state of the law, the mischief the legislative provisions were intended to remedy and the legislative history.169

[134] As observed, the Full Bench in Bowker expressed that the concept of being ‘at work’ encompasses both the performance of work (at any time or location) and when the worker is engaged in some other activity which is authorised or permitted by their employer or, in the case of a contractor, their principal (such as being on a meal break or accessing social media while performing work). The meaning attributed to the term ‘at work’ almost seems to necessitate some form of action -whether performance or activity. The word ‘activity’ has several meanings including: 1. the state of action; doing; 2. the quality of acting promptly; energy; 3. a specific deed or action; sphere of action: social activities; 4. an exercise of energy or force; an active movement or operation; and so on. 170

[135] When a worker is suspended, instructed not to attend work, or is on special paid leave, it is difficult to conceive that they are performing work or otherwise they are engaged in some ‘other activity which is authorised or permitted by their employer’. It is of course already recognised that the term does not import a requirement of being the confined to a physical workplace.

[136] Mr Cain was initially on a period of personal leave; he then commenced special paid leave and was thereafter suspended on pay. During his special paid leave and suspension, Mr Cain was provided with instruction to attend, or offered the opportunity to attend, interviews for the purpose of the workplace bullying investigation and the misconduct investigation. In the circumstances of this matter, Mr Cain was ready, willing and able to work (for the most part of his absence), there were two investigations occurring that required his input, and his absence from the workplace was authorised by the Council.

[137] Some of the behaviour Mr Cain relied upon to form the foundation of his application occurred when he was perhaps perceived to be ‘off work’. The particulars of the alleged unreasonable behaviour arose, for the most part, from the very process and procedures adopted by the Council to address MrCain’s bullying complaint and misconduct allegations. That is, some of the behaviour complained of could be construed to have been management action. I make no finding at this stage whether such action was reasonable.

[138] It follows that I fail to see why these alleged unreasonable behaviours remain impervious to this jurisdiction simply because at the relevant time Mr Cain was unable to be ‘at work’ – that is performing work or undertaking an authorised ‘activity’, because of the instruction provided by his employer, the City. This is particularly the case when that very instruction is said to have formed part of the repeated unreasonable behaviour.

[139] Section 789FD(2) of the Act is a qualification which reinforces that bullying conduct must of itself be unreasonable. 171 It also emphasises the right of management to take reasonable management action in the workplace. In its application, the provision comprises three elements:

a) the behaviour (being relied upon as bullying conduct) must be management action;

b) it must be reasonable for the management action to have been taken; and

c) the management action must have been carried out in a manner that is reasonable. 172

[140] In Ms SB, the Commissioner observed that the Explanatory Memorandum refers to management decisions and decisions about how work is to be carried out. This, said the Commissioner, suggests that the term may be required to be given a wide meaning under s.789FD(2) and that the Legislature intended everyday actions to effectively direct and control the way work is carried out to be covered by the exclusion. 173

[141] Clearly, determining whether management action is reasonable requires an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time. 174 However, if it were accepted that Mr Cain was not ‘at work’ in circumstances of being directed not to attend work or attend work related events, and of course having had IT access suspended, therefore precluding working from home, then the management action taken by the City over three to four months would appear to be immune to objective scrutiny.

[142] It is difficult to reconcile this with the protective purpose of Part 6-4B, a Part that was enacted to provide an individual right of recourse for persons who are bullied at work to help resolve the matter quickly and inexpensively. 175 The provisions of this Part would be effectively neutered in the aforementioned circumstances. As observed, in some circumstances that instruction in and of itself, might form part of the alleged repeated behaviour that is said to be unreasonable.

[143] Part 6-4 of the Act has broad coverage regarding the type of applicants who can apply for an order under s.789FF. The use of the word ‘worker’ purportedly extends the Part’s application to employees, contractors, subcontractors, outworkers, trainees, students gaining work experience and volunteers. It is therefore unsurprising that the Part does not refer simply to the concepts of an ‘employer’, ‘employee’ and ‘employment’ or ‘employed’. Having adopted the meaning for the term ‘worker’ from the Work Health and Safety Act 2011, the Explanatory Memorandum 176 explains that the definition is broad citing examples of coverage:

The term extends to persons who carry our work in any capacity for a ‘person conducting a business or undertaking’ (PCBU), including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer. The term also extends to include other persons who are deemed to be workers by section 7 of the WHS Act for the purpose of that Act, including Members of the Australian Defence Force, Members of the Australian Federal Policy and Commonwealth Statutory Officers. 177

[144] The term ‘at work’ when viewed in this context can be seen to effectively provide a ‘neutral’ term that avoids confining the operation of the Part to the binary relationship of the employer and employee – in ‘employment’ or whilst ‘employed’. Section 789FD similarly adopts the language of ‘worker’, ‘at work’ and identifies that it is an ‘individual’ who is the antagonist in the scenario. The language adopted in Part 6-4 emphasises that the jurisdiction extends beyond the employment relationship, and in this respect the meaning attributed to the term ‘at work’ should, in my view, be read in this light.

[145] Mr Cain was on special paid leave and suspended during the period in which some of the repeated unreasonable behaviours were said to have occurred. During both of these periods, his non-attendance at work and non-performance had been directed – that is the Council (City) had authorised the same. Compliant with those instructions, save responding to allegations or assisting with the workplace bullying investigation, he was not engaged in the performance of work (at any time or location) or some other ‘activity’ (as defined) authorised or permitted by the Council.

[146] However, as was observed by the Full Bench in Bowker, the term ‘at work’ will encompass a range of circumstances. In this case, I have concluded that Mr Cain was ‘at work’ notwithstanding his absence from the work location and non-performance of the usual daily responsibilities associated with his role. Council authorised the special paid leave and thereafter the suspension. While in the true sense of the word he may not have been otherwise engaged in an ‘activity’, as that term may generally be construed, nonetheless, the periods of absence were authorised and directed by his employer and Mr Cain ‘acted’ 178 accordingly by complying with the same.

Has Mr Cain been bullied?

[147] In order to satisfy the legislative requirement at s.789FF(1)(b)(i), Counsel for Mr Downing and the City advanced that Mr Cain must demonstrate he has previously been bullied at work.

[148] Mr Cain first articulated his bullying complaint in his email to Elected Members on 23 October 2019 and his letter to Mayor Howlett on 24 October 2019. Counsel for Mr Downing and the City observed that neither email nor letter suggested at that time Mr Cain had any concerns about his treatment by Mr Downing, Mayor Howlett or Councillor Allen. However, clearly the position changed after 23 October 2019, and it is that period, up until the date of the hearing, where the focus initially lies.

[149] Regarding that period, it is not inaccurate to state much of the conduct complained of with respect of Mr Downing, Mayor Howlett and Councillor Allen could be characterised as the action taken, or the process followed, when managing Mr Cain’s bulling complaint and investigation into his alleged misconduct. Therefore, it is timely to draw upon the detailed exegesis of s.789FD(2) in Re SB, 179 as the Vice President did in BOQ.180 In Re SB, the Commissioner stated the following salient points:

[46] Behaviour will not be considered to be bullying conduct if it is reasonable management action carried out in a reasonable manner.

[47] Section 789FD(2) of the FW Act is not so much an “exclusion” but a qualification which reinforces that bullying conduct must of itself be unreasonable. It also emphasises the right of management to take reasonable management action in the workplace. In its application, the provision comprises three elements:

•  the behaviour (being relied upon as bullying conduct) must be management action;

•  it must be reasonable for the management action to have been taken; and

•  the management action must have been carried out in a manner that is reasonable.

[48] The Explanatory Memorandum refers to management decision and decisions about how work is to be carried out. This suggests that the term may be required to be given a wide meaning under s.789FD(2) and that the Legislature intended everyday actions to effectively direct and control the way work is carried out to be covered by the exclusion.

[49] Determining whether management action is reasonable requires an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time. Without limiting that assessment, the considerations might include:

•  the circumstances that led to and created the need for the management action to be taken;

•  the circumstances while the management action was being taken; and

•  the consequences that flowed from the management action.

[50] The specific ‘attributes and circumstances’ of the situation including the emotional state and psychological health of the worker involved may also be relevant.

[51] The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’. In general terms this is likely to mean that:

•  management actions do not need to be perfect or ideal to be considered reasonable;

•  a course of action may still be ‘reasonable action’ even if particular steps are not;

•  to be considered reasonable, the action must also be lawful and not be ‘irrational, absurd or ridiculous’;

•  any ‘unreasonableness’ must arise from the actual management action in question, rather than the applicant’s perception of it; and

•  consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances.

[52] For the circumstances in s.789FD(2) of the FW Act to apply, the management action must also be carried out in a ‘reasonable manner’. Consistent with the approach above, what is ‘reasonable’ is a question of fact and the test is an objective one.

[53] Whether the management action was taken in a reasonable manner may depend on the action, the facts and circumstances giving rise to the requirement for action, the way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters.

[54] All of the requirements of s.789FD(1) must be read together. In terms of the issues in dispute in this case, this means that the Commission must consider whether an individual or group of individuals have repeatedly behaved unreasonably towards the applicant and whether that behaviour has created a risk to health and safety. A positive finding on each of these elements, and if appropriate, a finding that the circumstances contemplated in s.789FD(2) of the FW Act do not apply to the behaviour, must be made for the Commission to find that the applicant worker has been bullied at work. [Footnotes omitted] 181

Mr Downing

[150] The application detailed at length the repeated unreasonable behaviour of Mr Downing, which was said to have created a risk to Mr Cain’s health and safety. Each behaviour is considered.

Unlawful and/or unreasonable directions to Mr Cain and denial of Mr Cain’s access to the workplace and to workplace materials

[151] The application noted to the effect that on 6 November 2019, Mr Cain was:

i. placed on ‘special paid leave’ despite being on authorised sick leave;

ii. banned from attending work-related functions and events; and

iii. banned from the workplace and from accessing workplace email and other workplace materials.

[152] There was no dispute that on 24 November 2019, Mayor Howlett called an informal meeting of Council and members of the Executive Team. At that meeting the Council, not Mr Downing, resolved to restrict Mr Cain’s access to emails on the basis that such restriction was necessary otherwise Mr Cain would continue to expose himself to the workload he had complained about. In the letter of 28 October 2019 to Mr Cain, it was explained that Mr Cain’s focus was to be on his physical and mental health, and to ensure the necessary separation from work issues Council had requested his IT system access (including email) be temporarily suspended for the duration of his absence. 182

[153] The City and Mr Downing submitted it was the Council who resolved to put restrictions in place to ensure Mr Cain was protected from the stressors he was experiencing in the workplace. The evidence supports this contention. Mr Cain had after all identified stressors which included dealing with work emails and engaging with Elected Members at work and at work related events. The restrictions implemented appeared to be a responsible response.

[154] A resolution was made at the SCM on 4 November 2019 to the effect that Mr Cain would be placed on ‘special paid leave’ whilst an investigation took place. 183 The Council, not Mr Downing, resolved to put Mr Cain on ‘special paid leave’. The reason provided was that Council did not want Mr Cain to use his accrued sick leave entitlements during a period when he was on leave because he felt unsafe at work. In my view the explanation was plausible, and the action taken was reasonable. While there was suggestion by Mr Cain that the Council operated in a manner that for the most part saw it simply adopting the recommendations advanced by, in this case, the Acting CEO, there was no evidence which pointed to the Council abrogating its responsibilities or working at the behest of Mr Downing. As Mr Downing pointed out in his evidence, the decisions to place Mr Cain on special paid leave and direct him not to attend work were made by the Council after five hours of deliberation during the SCM on 4 November 2019. There was no reason advanced to disbelieve Mr Downing in this respect.184

[155] While Mr Cain may have considered such instructions or restrictions constituted an unilateral and unlawful variation of his contract of employment, the actions taken in the context of the application on foot, and given the circumstances that Mr Cain had reported had beleaguered him for some time, appeared more than reasonable. Further, in the context of providing a safe working environment, it is understandable that the Council saw fit to remove Mr Cain from the very environment that was, according to him, laden with stressors and effecting his health, until such time as the Council could investigate the issues raised and arrive at an outcome with respect to them. Again, it was not Mr Downing that resolved to direct Mr Cain that he had been placed on special paid leave.

[156] As it was, Mr Cain understood from the correspondence that he was being kept away from the workplace to protect his safety and wellbeing pending an investigation into his bullying complaint. 185 While Mr Cain may have disputed whether the Council had a legal basis for the instruction (authorised by an express or implied term of the contract), and attests his request for a copy of the Bullying Policy, which was said to have been the source of authority for the instruction given was denied – it nevertheless remains the case that on any objective level the instructions given or restrictions put in place appeared resoundingly reasonable in light of the complaints made and health impacts described.

[157] It is not the case that the conduct complained of in this part constitutes unreasonable behaviour – whether by the Council or Mr Downing – however, noting that such assertion is not directed toward the Council or the City.

Unfair behaviour towards Mr Cain since about 24 October 2019

[158] Concerning further unfair behaviour, the particulars relied upon included a failure:

i. to notify Mr Cain of a SCM on 4 November 2019 and to give him notice that the purpose of the meeting included matters concerning him, in breach of the Council Meetings Policy of the City of Cockburn; and

ii. to promptly communicate to Mr Cain the 4 November resolution;

[159] While Mr Cain took issue about not being notified of the SCM held on 4 November 2019, again, I do not consider that such omission constituted unreasonable behaviour, as that term is understood by reference to the Act. According to Mr Downing and the City, there was no legal obligation on Mr Downing to inform him of the SCM – a point that was not rebutted.

[160] Mr Cain stated he had received a letter of 6 November 2019, in which he was informed of the resolution of 4 November 2019. In this respect Mr Cain gave evidence that he received a letter of 6 November 2019 from Mayor Howlett in which he was informed to the effect that the Council had ‘resolved’ that he not attend work or work-related matters, including emails, functions, events, conferences and related travel until ‘the matters’ are resolved. 186 I do not think it can be said that there was a failure to ‘promptly’ communicate with Mr Cain the 4 November resolution – given the lapse of only two days. While it may have been the case that the Council could have been swifter with its communication, the Act does not require management actions that are perfect or ideal. The action taken was reasonable.

Other particulars of unfair behaviour

[161] Further examples of unfair behaviour towards Mr Cain included that an investigation had been commenced in November 2019 into allegations of misconduct against Mr Cain without notice to Mr Cain. Having heard from Counsel for Mr Cain, and in light of Mr Cain’s evidence, it appeared Mr Cain held an expectation that prior to formally notifying him about the allegations, they would have been informally broached with him.

[162] While some businesses may adopt this approach with their employees, others may prefer to provide precise written information of alleged misconduct to their staff. There does not appear to be anything out of the ordinary concerning the latter approach. Perhaps much will turn on the relationship between employer and employee, and past practices. There was no evidence to suggest that the past practice adopted was one where allegations were ‘informally’ broached, prior to written notification of the same. As it was, Mr Cain was informed of the allegations after the Council resolved to investigate the matter and to engage an investigator to do so. Mr Cain was informed of this by letter on 6 December 2019. Again, the action taken, or process followed, is not coloured by unreasonableness.

[163] Mr Cain asserted it was unfair behaviour to have commenced the misconduct investigation in December 2019, in circumstances where an investigator had been appointed to investigate the allegations, and yet he had not been notified of the allegations. I disagree that this constituted unfair or for that matter, unreasonable behaviour.

[164] The engagement of the investigator prior to Mr Cain being notified of the allegations appears to have founded Mr Cain’s assertion. Yet even if it was the case that an investigator was appointed prior to Mr Cain being informed of the allegations, this again does not appear illogical or absurd. It is within the realm of reasoned behaviour that having identified allegations of misconduct, the employer may prefer to inform the employee of the allegations, how the investigation will unfold, who is appointed to conduct the investigation and who is the point of contact, at the same time. Such a process does not appear, in the context of this matter, to deny Mr Cain procedural fairness. Further, were there a denial of procedural fairness it does not necessarily follow that the conduct falls under the remit of unreasonable behaviour such that it forms part of bullying behaviour.

[165] The letter of 6 December 2019 to Mr Cain, stated it was the Council’s decision to investigate the matters. The letter of 6 December 2019 did not identify the investigator at that point but noted ‘the City is currently in the process of determining the investigation process. You will be given further detail regarding the investigation process and allegations next week…’. The latter letter of 12 December 2019 provided particulars of the alleged misconduct and confirmed the appointment of Mr Cusack. I do not consider there is merit in the contention that the process adopted by Mr Downing on behalf of the City was unfair.

[166] The unfair behaviour also covered the denial by the City of Mr Cain’s access to records, which he purported to have required to properly prepare for and participate in the investigation by the City into his bullying complaint, in breach of the Bullying Policy of the City. The contention is absent merit. With respect to this, I observe only that when Mr Cain provided Mayor Howlett with his complaint letter of 24 October 2019, he referred to seventeen attachments all of which accompanied the letter. It was therefore the case that accompanying the complaint were records sought to be relied upon by Mr Cain.

[167] Counsel for Mr Cain, said in effect that the Bullying Policy did not constitute a direction by the City, and therefore there was nothing for Mr Cain to abide by simply by reason of the Bullying Policy - it simply informs employees what the City may do if felt it appropriate to do so. Even if there were a breach of the Bullying Policy, as Mr Cain suggests, it remains unclear how this constituted bullying as defined in s.789FD, and how Mr Downing is responsible for such breach when Council made the decision to restrict Mr Cain’s access to the IT system, not Mr Downing.

[168] Mr Cain claimed that the failure to notify him of the SCMs on 4 December 2019, 13 January 2020, 11 March 2020 and 26 March 2020, and to give him notice that the purpose of the meetings was to consider matters concerning him constituted unfair behaviour. There was no legal obligation on Mr Downing to inform Mr Cain that those meetings were being held. While Mr Cain may have preferred to have been notified of the SCMs, Mr Downing not doing so does not in my view constitute unfair behaviour in the absence of an obligation to do so.

[169] Mr  Cain advanced that the unfair behaviour was evinced by Mr Downing failing to take steps or proper steps to ensure as far as possible that Mayor Howlett, Councillor Smith and Councillor Allen, as the case may be, refrained from being involved in Mr Cain’s bullying complaint and the allegations of misconduct against Mr Cain, including, without limitation, at the SCM on 4 November 2019, 4 December 2019, 13 January 2020, 11 March 2020 and 26 March 2020. From the evidence led by the three Elected Members and the City, I am unable to conceive how Mr Downing had authority to restrain such Elected Members. Evidence given was suggestive that the position of CEO or Acting CEO may include a responsibility to advise Elected Members. The evidence of Councillor Smith, whom I had no reason to disbelieve as she seemed remarkably forthright, was to the effect that advice was given by the CEO or Acting CEO on request by the Elected Member. Additionally, Councillor Smith noted to the effect that the Elected Member was free to make of that advice whatever she or he chose.

[170] Additionally, Mr Cain contended Mr Downing did not take steps to ensure he was provided with an opportunity to respond to the report of one Dr Sitlington, into his bullying complaint, and one Mr Brendan Cusack, into the allegations of misconduct against him. There was no legal or procedural obligation on Mr Downing to ensure Mr Cain had an opportunity to respond to these investigation reports. The evidence shows that Mr Cain was given opportunity to participate in both investigation processes. Reliance on this ‘omission’ by Mr Downing does not in my view evince unfairness, and the submissions of Counsel for Mr Cain do not advance the matter further. The contention is meritless.

[171] The assertion of unfair conduct extended to Mr Downing engaging in unreasonable behaviour because of his failure to take reasonable steps to ensure that Mayor Howlett allowed Mr Cain an opportunity to address the Council. The evidence did not lead to this conclusion. Mr Downing did not have legal authority to provide Mr Cain with an opportunity to address the Council. Further, it is unclear what action would constitute ‘reasonable steps’ and why Mr Downing was so obliged to take reasonable steps to ‘ensure’ that another person, in this case, Mayor Howlett, acted in a certain way.

[172] The unreasonableness of Mr Downing’s behaviour extended to the cancelling of the scheduled SCM on 26 March 2019. Yet the evidence before me was that Mr Downing had no legal ability or authority to cancel Council meetings. The contention of unreasonableness is not made out.

Public disclosure of personal information

[173] The public disclosure of Mr Cain’s personal information without his consent formed part of the unreasonable behaviour Mr Downing is said to have engaged in. Mr Cain contended that Mr Downing disclosed, in the agenda for the SCM on 4 November 2019, personal medical information pertaining to his fitness for work status. However, Counsel for Mr Downing and the City advanced that Mr Downing was not responsible for the preparation of the agenda, and the item was to be considered behind closed doors. It followed no members of the public were present when the item was discussed. Given the evidence led, I was unpersuaded that Mr Downing’s conduct was unreasonable. It was not apparent that Mr Downing had prepared the agenda, and as it was, Mr Cain had already disclosed the state of his health to several CEOs, therefore placing the information into the public domain.

Unfair behaviour regarding the allegations of misconduct

[174] Unfair behaviour was said to have occurred on 6 December 2019, when it was alleged that Mr Cain had engaged in misconduct in circumstances where:

i. the particulars of the allegations did not support an inference of misconduct by Mr Cain when referred to the SCM on 4 December 2019; and

ii. one of the allegations was baseless regarding the improper attendance at a certain conference on 10 November 2019 whilst on ‘special paid leave’ – in circumstances where Mr Cain had not been in attendance.

[175] While Mr Downing may have assumed responsibility for bringing to the attention of the Council the allegations, ultimately it was the Council, not Mr Downing, who resolved to put the allegations to Mr Cain in writing, and determined the appropriate wording of the misconduct allegations against him. The assertion that Mr Downing acted unfairly by putting to Mr Downing the allegations of misconduct, is unsupported by the evidence led.

[176] Mr Cain contended that it could be inferred that as Acting CEO, at all material times it was Mr Downing who acted against him purportedly in the name of the City. Such an assertion again suggests that the Council, or rather those persons who constituted the Council, had no independence of thought and unquestioningly followed the recommendations of the Acting CEO. There is no evidence before me to draw that conclusion. Further, while it was asserted that one of the allegations was baseless regarding improper attendance at a particular conference, the evidence given, which I had no cause to disbelieve, was that an error had been made regarding the name and location of the conference –which was latterly corrected. While Mr Cain held the view that the particulars of the allegations did not support an inference of misconduct, such allegations were not absurd or unfounded by evidence. It could not be said, therefore, that they were unreasonable, or that putting them to Mr Cain to respond to was unreasonable.

Other allegations

[177] Mr Cain asserted that on 19 December 2019, a new allegation of misconduct was levelled against him. This was, according to Mr Cain, an unauthorised and unfair substitution of a new allegation of misconduct in circumstances where there was not the proper authorisation by the Council to do so, and without apology or explanation to Mr Cain. The evidence of Mr Downing was to the effect that an error was made in the original allegation and was he therefore corrected it. That error in the third allegation against Mr Cain was such that it referred to Mr Cain attending the NGAA Conference when it was the LG Pro dinner. The behaviour of Mr Downing in correcting the error when it came to his attention formed, in my view, part of the reasonable management decisions taken by him. Further, the correction made left unadulterated the crux if the issue, which was an allegation that Mr Cain had attended a work-related event in circumstances where instructed not to do so.

[178] Regarding the contention that Mr Downing had acted unreasonably and unlawfully when he did not mediate with Mr Cain about the matters then in issue – namely the workplace bullying investigation and the misconduct allegation, it was the Council, not Mr Downing, that was responsible for determining whether, when and on what basis it would mediate with Mr Cain. The behaviour pointed to was not conduct engaged in by Mr Downing. Further, Mr Cain’s employment contract, which dealt with mediation, expressly provided that mediation did not relate to disciplinary action or terminating employment. The City and Mr Downing sought clarification what it was Mr Cain wished to mediate about – there appeared to not have been further follow up by Mr Cain.

[179] Mr Cain submitted he had been unfairly isolated, given a staff member was precluded from seeing him whilst he was on sick leave on 11 November 2019. However, as of 11 November 2019, the City considered that Mr Cain was on special paid leave and an investigation was underway concerning allegations of workplace bullying. Mr Cain had, by this time, reported that his mental and physical health had been significantly impacted, and consequently the Council had resolved that for the protection of Mr Cain’s safety and wellbeing he would not attend to any work related matters.

[180] Given all the circumstances, the conduct of Mr Downing in this respect can be seen to be reasonable management action in that he was upholding the terms of Mr Cain’s special paid leave as determined by the Council. That is not to suggest that the conduct in question was best practice or perfect. Perhaps with the benefit of hindsight, allowing a staff member (on the proviso they were not a witness in the workplace investigations on foot) to have visited Mr Cain would have been a legitimate allowance. All the same, Mr Downing’s conduct was not unreasonable.

Mayor Howlett

[181] Mr Cain asserted that Mayor Howlett had engaged in repeated unreasonable behaviour towards him that created a risk to his health and safety. I have found this not to be the case.
[182] It was advanced that Mayor Howlett had unfairly isolated Mr Cain since about 2010, by his failure to properly discharge his role and assist Mr Cain in managing the unacceptable behaviour within the Elected Member group. However, the evidence at hearing was that Mayor Howlett had no legal authority to ‘manage’ the behaviour of other Elected Members, which I accept. The evidence showed that Mayor Howlett was absent authority to manage the performance or behaviour of other Elected Members, including the alleged unacceptable behaviour by Councillor Smith and others towards Mr Cain and others.

[183] Mr Cain also considered Mayor Howlett had behaved unfairly since about 4 November 2019, because despite his purported conflict of interest as a person against whom Mr Cain alleged bullying conduct, he had repeatedly failed to refrain from being involved in:

i. consideration by the Council of the City of Mr Cain’s bullying complaint notified by Mr Cain in an email on 23 October 2019 to the Elected Members of the Council and on 24 October 2019 to Mayor Howlett as amplified in an interview with one Dr Sitlington on 5 December 2019;

ii. in the making of a resolution by the Council at a SCM on 4 November 2019; and

iii. consideration by the Council of allegations of misconduct levelled against Mr Cain by Mr Downing including a SCM on 4 December 2019, 13 January 2020 and 11 March 2020.

[184] In Re George, the Commissioner observed that the Commission might need to form some views about the apparent legal validity of various decisions and actions in order to determine its jurisdiction to deal with matters. 187 The Commissioner continued that assuming the Commission otherwise had jurisdiction, this could include forming a view about whether the conduct of the parties in light of the purported resolutions was unreasonable so as to potentially form part of findings relevant to s.789FD of the Act - whether there has been bullying conduct.188

[185] Based on the evidence given, there appeared to be no legal or procedural obligation on Mayor Howlett to remove himself or Councillors Smith and Allen, from considering and voting on the matters that were raised at the SCM regarding Mr Cain (see paragraphs [226] – [233] of this decision). Further, I do not consider that Mayor Howlett’s inclusion in the SCMs invalidated the decisions made or resolutions passed.

[186] Further, I do not consider that the content of such resolutions was in anyway unreasonable given the circumstances. Mayor Howlett was not formally the subject of Mr Cain’s bullying complaints until January 2020 (when Mr Cain raised allegations against Mayor Howlett for the first time). By that time, both the bullying and the misconduct matters were being independently investigated – which in my view was an appropriate course for the Council to have taken.

[187] Mr Cain asserted that Mayor Howlett had provided him with unreasonable and unlawful directions– on 28 October, in effect banning Mr Cain from the workplace and denying him access to workplace resources. However, as has been previously observed, it was the Council that met informally on 24 October 2019, and determined the course of action to take, not Mayor Howlett himself. Given all the circumstances, particularly the content of Mr Cain’s email dated 23 October 2019, it is understandable why the Council determined that for Mr Cain’s safety and wellness there needed to be a complete separation from work. Mr Cain’s report regarding his health was unequivocal in its terms – he said he had resorted to medical care, pharmacological support and other assistance.

[188] Both parties provided a detailed account of the chronology regarding the progression of Mr Cain’s bullying complaint. Mr Cain expressed there was an undue delay regarding the bullying investigation and that Mayor Howlett did not ensure an expeditious determination by the Council of his complaint. I do not consider that this was the case. It was evident that the workplace investigation process was somewhat prolonged. However, the delays encountered did not appear attributable to the conduct of Mayor Howlett.

[189] Mr Downing and another member of the Executive Team facilitated the investigative process conducted by Jackson McDonald and Dr Sitlington. There is no evidence to suggest that Mayor Howlett was unavailable or uncooperative concerning his interview for the purpose of the investigation. Mr Downing received the workplace bullying reports from Jackson McDonald on 3 March 2020 and on or around that time, Mayor Howlett was advised the bullying investigation was completed. On 4 March 2020, one day later, Mayor Howlett sent to Mr Downing a letter calling for a SCM on 11 March 2020. 189 The SCM occurred on the proposed date.

[190] Similarly, Mr Cain contends that Mayor Howlett occasioned an undue delay, as he did not ensure an expeditious determination by the Council of the allegations of misconduct against Mr Cain. It was purported that Mayor Howlett had failed to ensure such allegations, which were first the subject of a resolution of Council on 4 December 2019, were dealt with by Council expeditiously.

[191] I do not intend to traverse all the evidence in this respect concerning the correspondence exchanged between Allion Partners and Jackson McDonald regarding the misconduct enquiries. The background information provided at the start of this decision goes some way to outline the positioning by missives - adopted by both firms (see paragraphs [20] to [36]). Mr Downing and the City contend that Mayor Howlett was not responsible for delays relating to the bullying and misconduct investigation processes and that Mr Cain was a major contributor in the delay in those matters being finalised. The contention is not without merit and, at the very least, I find that the delays were not attributable to the conduct of Mayor Howlett – whether by his action or purported omission in ensuring the expediting of the process.

[192] Mr Cain asserted that Mayor Howlett had unreasonably refused him the opportunity to address the Council by way of deputation – at the SCM on 11 March 2020 and the SCM scheduled for 26 March 2020, in relation to the allegations of misconduct by him. In short, the action constituted reasonable management action because of the following reasons: (a) Mr Cain was suspended from work at the time; (b) Mr Cain was not privy to the material before the Council in those meetings; (c) the meetings were closed to members of the public and (d) Mr Cain had been given numerous opportunities to participate in the bullying investigation and the misconduct investigation. However, if the Council were deciding whether to terminate Mr Cain’s employment, before doing so, one would anticipate that Mr Cain would be afforded the opportunity to respond and provide to Council mitigating circumstances which may negate such decision. The omission of such step may establish procedural unfairness, but that in and of itself may not constitute unreasonable behaviour for the purpose of this jurisdiction – much turns on context, and of course consideration whether the behaviour (if found to be unreasonable) is repeated.

Councillor Smith

[193] Mr Cain alleged that Councillor Smith had engaged in repeated unreasonable behaviour towards him that created a risk to his safety and health. The behaviours detailed in Mr Cain’s application are set out below.

a) Abusive language by Councillor Smith – since about 2010, during various Elected Member Briefing Sessions.

b) False allegation by Councillor Smith – in about May, June, August and December 2018, and August and October 2019.

c) Inappropriate remarks by Councillor Smith – since about 2010, in various emails to Mr Cain and other staff of the City.

d) Unfair behaviour by Councillor Smith– since about 4 November 2019, despite their conflict of interest as persons against whom Mr Cain alleges bullying conduct, repeated failure by either one or more of Mayor Howlett, Councillor Smith and Councillor Allen to refrain from being involved in:

i. consideration by the Council of the City of Mr Cain’s bullying complaint notified by Mr Cain in an email on 23 October 2019 to the Elected Members of the Council and on 24 October 2019 to Mayor Howlett as amplified in an interview with one Dr Sitlington on 5 December 2019;

ii. in the making of a resolution by the Council at a SCM on 4 November 2019; and

iii. consideration by the Council of allegations of misconduct levelled against Mr Cain by Mr Downing including an SCM on 4 December 2019, 13 January 2020 and 11 March 2020.

e) Unfair social media – postings by Councillor Smith about Mr Cain on her Facebook page on or about 4 November 2019, 7 November 2019 and 13 November 2019 of material concerning Mr Cain’s bullying complaint.

[194] Starting with the contention that Councillor Smith had engaged in unfair behaviour by participating in Council meetings since 4 November 2019, despite her ‘conflict of interest’, I note, as I did previously with respect to the findings concerning Mayor Howlett, that the evidence given did not support there being any legal or procedural obligation on the Councillor to remove herself from considering and voting on those matters.

[195] As, I have said with respect to the findings concerning Councillor Allen, even if it were the case that Councillor Smith had an impartiality conflict, the evidence provided, which was not rebutted, was that Councillors who declare an impartiality interest (conflict interest) are expected to consider and vote on that particular matter – provided that they declare that interest. According to the evidence, if a Councillor is present in the Council meeting, they have a duty to exercise a vote.

[196] The circumstances regarding Councillor Smith, somewhat differ to Mayor Howlett and Councillor Allen, in that for two months she was suspended from the Council. Therefore, for the period of 3 February 2020 to 3 April 2020, 190 Councillor Smith did not have input into the allegations of misconduct – particularly at the SCM on 11 March 2020.

[197] By letter of 24 October 2019, Mr Cain set out in detail the behaviours of Councillor Smith which had led him to conclude that the Councillor had made numerous rude, abusive, or inappropriate remarks, and had made false or unfounded allegations. At hearing, Councillor Smith led no evidence to rebut the content reported in the letter of 24 October 2019. Further, it should be noted that examples of such conduct arise from direct evidence. While not listed at length, some examples are provided.

[198] By email dated 13 October 2019, Councillor Smith informed ‘12 Directors Executive Team DL’ and Ms Samantha Seymour-Eyles, the City’s Manager of Corporate Communications of the following:

Subject: Stalking

Dear Stephen

I know social media is way behind catching up so far a policy goes.

While I have blocked you and others from my Facebook page, other candidates and community members who are NOT your friends have asked me – why does STEPHEN CAIN (picture attached) keep coming up as a possible friend

I contacted Facebook and they said the reason this happens is – if YOU are looking at their pages YOU may come up as a POSSIBLE friend.

Not sure how we deal with this new faze of (stalking), policy, etc

Something the naïve Facebookers may want to consider.

Kindest Regards

Lee-Anne 191

[199] On each occasion I have had read this email, I am discouraged that an Elected Member of a Council would engage in such puerile conduct. Putting aside that somehow Councillor Smith was elected as a Councillor of the City, and arguably is required to act in that position absent absurdity, she has, without any semblance of cogent evidence, directed a complaint of ‘stalking’ against Mr Cain. That Mr Cain would understandably be humiliated and embarrassed given the audience copied to the email (Email address: ‘12 Directors Executive Team DL’ directs email to all members of the City’s Executive Team), 192 and the substance of that which was said, perhaps goes without saying. The email speaks for itself.

[200] Yet, that is not all of it. In email correspondence mid-April 2017, an issue appeared to have arisen regarding a constituent’s access to a meeting in which the constituent wanted to ask questions and convey her issues. Councillor Smith had sent to Mr Cain the Access and Inclusion Plan link in an email titled ‘Inclusion’. That constituent in question was away on business at the time of the scheduled meeting, and a representative of the City (not Mr Cain) explained there would be no meeting minutes accessible as it was a workshop conducted on a one on one basis. Mr Cain wrote to Councillor Smith explaining:

Thanks for this clarification. I was aware that a number of landowners accepted the offer of separate briefings due to their absence, these are being coordinated so that all relevant staff (planning, roads, environment) will be in attendance as required. Ms Cole is on a business trip and to the best of our knowledge has no physical disability.

The only person that attended last night with a physical disability had their needs covered. Likewise the residents that had a language problem were represented by their son as their translator. 193

[201] Councillor Smith replied on 12 April 2017, having copied in ‘15 Elected Members DL; Directors’:

You are sooooooo missing the point Stephen.

How misinformed you are around mental health and inclusion.

That’s frightening.

[202] Once again, Councillor Smith considered it appropriate to copy in an audience of the City’s Directors and Elected Members. In no uncertain terms, by sending that email, she disparaged Mr Cain.

[203] Following an issue regarding another Councillor seeking a matter to be noted without debate, Mr Cain emailed Councillor Smith on 9 June 2017 explaining the position taken. The email from Mr Cain was in neutral terms and informative. Councillor Smith responded within a minute of receiving the email, only to Mr Cain, ‘Wrong wrong wrong Councillor Protelli referenced this seconds before voting in item 15.11’. 194 Councillor Smith thereafter sent a further email dated 9 June 2017, copying in on the chain ‘Directors’, and stated ‘I have very grave concerns regarding the leadership being shown. If it was not for the integrity and good values displayed by our Mayor I would really struggle to work beneath such concerns’. Having copied in the other Directors of the City, Councillor Smith called into question Mr Cain’s leadership capability in front of his subordinates; the conduct was completely unreasonable.

[204] That unreasonableness manifested itself again in an email around the same time, one that appears to be linked to the chain of correspondence dated 9 June 2017, where Councillor Smith stated to Mr Cain, again with ‘12 Directors Executive Team DL; 15 Elected Members DL’ copied, ‘you are missing my point – very convenient of you. I am not responding any further and like I said ‘you have to sleep at night’’.

[205] I have found that not only has Councillor Smith made inappropriate remarks toward Mr Cain, at least since 2017 (albeit one email dates back to 2013), but that such conduct is unreasonable and has been repeated. I do not consider that any of incidents referred to above constitute repeated behaviour that amounts to reasonable management action carried out in a reasonable manner.

[206] Concerning the remainder of the Councillor Smith’s purported conduct, specifically, the abusive language directed towards Mr Cain, false allegations and unfair social media, the evidence led by Mr Cain was not rebutted. On this basis, I am content to believe Mr Cain’s evidence, and am satisfied Councillor Smith’s behaviour towards Mr Cain was unreasonable and repeated.

Councillor Allen

[207] Mr Cain alleged that Councillor Allen had engaged in repeated unreasonable behaviour towards him that created a risk to his safety and health. My first observation regarding the contentions levelled at Councillor Allen, are that they are remarkably tenuous and do not advance Mr Cain’s argument that he has been bullied by Councillor Allen.

[208] Mr Cain argued he had borne for some time inappropriate remarks being made by Councillor Allen in various emails to him and other staff at the City. One email was submitted in evidence. As detailed at paragraph [20] of this decision, in the course of email correspondence, Councillor Allen had stated in an email addressed to Mr Cain, and to which Mr Arndt and Mr Lefort were copied, ‘[W]hen are we going to grow some balls and act on this location’.

[209] Councillor Allen explained that he had copied in both Mr Arndt and Mr Lefort to the email because it was a Council issue and a planning issue that had been going on without resolution. It was Councillor Allen’s view that it was becoming embarrassing for the Council and for him, as it was in his particular ward. When asked if he considered the email disparaging of Mr Cain, Councillor Allen expressed that the offending sentence was not directed to a person, but rather ‘as us as the City’. Having read the email correspondence, I find Councillor Allen’s explanation plausible. It was not an appropriate turn of phrase and it is not excused by stating one has a very open relationship with another (Mr Cain), or that what you see is what you get, however, it remains the case that the statement was not directed to Mr Cain, but rather was referring to the Council and the City as a collective.

[210] Like the argument advanced against Mayor Howlett and Councillor Smith, Mr Cain contended Councillor Allen had embarked in unfair behaviour since 4 November 2019:

a) despite their conflict of interest as persons against whom Mr Cain alleges bullying conduct, repeated failure by either one or more of Mayor Howlett, Councillor Smith and Councillor Allen to refrain from being involved in:

a. consideration by the Council of the City of Mr Cain’s bullying complaint notified by Mr Cain in an email on 23 October 2019 to the Elected Members of the Council and on 24 October 2019 to Mayor Howlett as amplified in an interview with one Dr Sitlington on 5 December 2019;

b. in the making of a resolution by the Council at a SCM on 4 November 2019; and

c. consideration by the Council of allegations of misconduct levelled against Mr Cain by Mr Downing including an SCM on 4 December 2019, 13 January 2020 and 11 March 2020.

[211] As I have noted previously, based on the evidence given, there appeared to be no legal or procedural obligation on Councillor Allen to remove himself from considering and voting on those matters. Councillor Allen gave evidence he did not believe himself to be the subject of Mr Cain’s workplace bullying complaint until he received the draft application on 10 January 2020. Given the application was not filed with the Commission, he considered that Mr Cain had decided not to proceed with the application. When it was observed that as of 10 January 2020, Councillor Allen was aware of the complaint made against him regarding bullying, and yet he had participated in the Council meeting of 13 January 2020, Councillor Allen responded that he did not believe he had an impartiality conflict.

[212] Even if it were the case that Councillor Allen had an impartiality conflict, evidence provided, which was not rebutted, was that Councillors who declare an impartiality interest (conflict interest) are expected to consider and vote on that particular matter – provided that they declare that interest. According to the evidence, if a Councillor is present in the Council meeting, they have a duty to exercise a vote. In such circumstances the contention of unfair behaviour is not made out.

Is there a risk of future bullying?

[213] In Ms SB, 195 Hampton C provided the following analysis in relation to the ‘risk to health and safety’ element in s.789FD as follows:

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

[214] A risk to health and safety means the possibility of danger to health and safety, and is not confined to actual danger to health and safety. 196 The ordinary meaning of ‘risk’ is the exposure to the chance of injury or loss; a hazard or dangerous chance,197 however, the risk must be real and not merely conceptual.198

[215] An investigation had been conducted into Mr Cain’s complaints outlined in his email dated 23 October 2019 and letter of 24 October 2019, with a view to ensuring that Mr Cain was provided with a safe workplace going forward. The investigation appears to have concluded in February 2020, the Council reviewed the investigation report in March 2020, and resolved to take steps to ensure Mr Cain’s safety. Mr Cain was informed of these steps in correspondence of 12 March 2020.

[216] A comparison of the final orders sought by Mr Cain and the steps set out in the Council’s resolution, revealed that the Council has already resolved to take a number of the steps requested by Mr Cain. In addition, the Council had undertaken to implement a suite of additional measures.

[217] On this basis, there was no evidence before the Commission that there is a risk to Mr Cain’s safety in the workplace going forward. While the outcomes of the workplace bullying investigation had not been implemented at the time of hearing, this was understandable given the outstanding matter of the misconduct investigation on foot. As it was, Mr Cain was suspended and had no access to IT systems. Therefore, his interactions with Councillor Smith were minimal, if occurring at all. Furthermore, there was no evidence before the Commission to suggest that the Council, having adopted the report and outcomes concerning the workplace bullying investigation, would renege on its commitment to ensure the outcomes were carried through.

[218] By way of observation only, Mr Cain had indicated his intent to make the first application in early January 2020. A relatively unchanged version of the application was ultimately filed in early April. Had Mr Cain been concerned about ‘continued bullying’, it would, in my view, been reasonable to assume that he would not have waited three months to file the application.

[219] It was submitted to the effect that the triumvirate of Elected Members, that is the actors responsible for what was happening to Mr Cain, had reason to be predisposed against him and those same actors were the ones who are making decisions concerning his employment.

[220] The evidence shows that Councillors Smith and Allen were opposed to the extension of Mr Cain’s contract –their evidence in this respect was that they were dissatisfied regarding the process undertaken concerning the contract extension. Further, while Councillor Smith had sought to understand a ‘pay out’ figure if Mr Cain’s contract was brought to an end, the context of the email discussion – again was referable to the process that had been undertaken which resulted in the contract extension. The evidence of Councillors Smith and Allen on these points was compelling. Direct evidence adduced and the oral testimony of both, supports a finding, that it was the process which was of concern.

[221] The gravamen of Mr Cain’s case was that all persons named and involved in making decisions about his employment, had a conflict of interest, were biased, or had an apprehension of bias in matters concerning his bullying complaint. From Mr Cain’s point of view, the bottom line was that he did not seek to oppose the Council determining outcomes of misconduct at the SCM – but his contention was effectively that those accused of bullying should not be the judges, as they might be tainted bias or potential conflict of interest. I do not consider this to be an ongoing risk of future bullying.

[222] The circumstances before me, have not led me to a finding or conclusion that Mr Downing, Mayor Howlett, or Councillor Allen acted unreasonably. Concerning Councillor Smith, she had acted unreasonably repeatedly, but such behaviours, in my view, had been addressed appropriately in the workplace bullying investigation outcomes. The continuing participation of the three Elected Members and Mr Downing in Council meetings did not represent a risk that Mr Cain will continue to be bullied at work. There is already in place a procedural process for Council to follow which addresses circumstances of a conflict of interest or impartiality in Council meetings.

[223] To restrain the Elected Members from voting in matters concerning Mr Cain, is in my view not about addressing the risk of continued bullying, but is about precluding democratically appointed Elected Members from complying with their obligation to vote on certain Council matters in accordance with subordinate legislation. More on this point is traversed at paragraphs [226] to [233].

[224] Therefore, Mr Cain has not made out the final requirement of s.789FF(1)(b)(ii) and his application must therefore not succeed.

[225] For the sake of fulsomeness and notwithstanding my above conclusion, I have briefly addressed other arguments pressed by the City and Mr Downing.

Are the orders sought misconceived?

[226] Counsel for Mr Downing and the City advanced that the only significant, additional orders sought by Mr Cain, which were not addressed in Council’s resolution (see letter of 12 March 2020), are orders which seek to restrain Mayor Howlett, Councillor Smith and Councillor Allen from being involved in any discussions, consideration or voting on resolutions relating to Mr Cain’s bullying complaint and misconduct allegations in their role as Elected Members of the Council, and of course the restraints sought regarding Mr Downing. Having considered those orders, they do not appear to be directed towards the prevention of relevant future unreasonable conduct – they target actual or perceived bias, or as referred to in the language of the three Elected Members, ‘impartiality’.

[227] Section 789FF of the Act provides that if the Commission is satisfied that ss.789FF(b)(i) and (ii) have been met, then it may make any order it considers appropriate. While the use of the word ‘any’ appears to provide the Commission with authority to issue a wide range of orders, the discretion regarding the type of order that may be issued is not, in my view, unfettered. Clearly the order is to be directed towards the prevention of relevant future unreasonable conduct and be informed by, but not necessarily limited to, the prior unreasonable conduct as found. 199 Further, the Commission must take into account any procedure available to the worker to resolve grievances or disputes, or final or interim outcomes arising out of an investigation into the matter, or procedures available to resolve the grievance.

[228] In this matter, the Elected Members’ legal obligations in terms of considering and voting on council resolutions are governed by the Local Government Act and the Local Government (Rules of Conduct) Regulations 2007 (Conduct Rules). Counsel for Mr Downing and the City pointed to regulation 11 of the Conduct Rules which deals with Elected Members’ conduct in circumstances of a potential (non-financial) conflict of interest. An interest is defined in Rule 11(1) as:

interest means an interest that could, or could reasonably be perceived to, adversely affect the impartiality of the person having the interest and includes an interest arising from kinship,

friendship or membership of an association

[229] While the Conduct Rules inform that the council member who has an interest in any matter to be discussed at a council meeting must disclose the nature of the interest, there is no requirement that they are to be excluded because of that interest. Section 5.21 of the Local Government Act sets out the requirements regarding voting. It states:

1) Each council member and each member of a committee who is present at a meeting of the council or committee is entitled to one vote.

2) Subject to section 5.67, each council member and each member of a committee to which a local government power or duty has been delegated who is present at a meeting of the council or committee is to vote.

[230] Section 5.67 of the Local Government Act sits within Division 6 of Part 5 – Disclosure of financial interest and gifts. In this case s.5.67 Local Government Act, is not relevant because it is directed to a conflict of interest that pertains only to a financial interest or gift.

[231] The City of Cockburn Standing Orders Local Law – gazetted in the Western Australian Government Gazette on 22 September 2016 outlines the process to be followed concerning the ‘Declaration of Impartiality Interest’. It provides:

1) In this clause:

Interest under this clause means an interest of a personal nature which a member or employee has in a matter which is not required to be disclosed under Part 19 or Part 20, but which a reasonable person knowing the facts might assume would influence the consideration of that matter by the member or employee. (Examples are applications for an approval consent or licence by a parent, sibling, adult child or close friend of a member or employee).

2) If a member or employee attending a meeting of the Council has an interest under this clause in any matter proposed to be considered at that meeting the member or employee should disclose that interest at the meeting before the discussion of the relevant matter that requires a decision to be made by Council.

3) A member expected to disclose an interest under this clause in a matter shall remain in the chamber or room of the meeting while the matter is discussed and voted upon.

4) In applying the preceding clause, a member must bear in mind the obligation under clause 5.21(2) of the Act to vote at meetings where the member is present.

5) The decision to disclose an interest under this clause is a decision to be made by the member or employee and is not to be determined by resolution of the meeting.

[232] If it were the case that ss.789FF(b)(i) and (ii) were satisfied, I would still have found it inappropriate for the Commission to make orders set out in proposed orders 7-9 in Annexure B of the application. The Western Australian State government has sought to address issues of conflict of interest and impartiality in its subordinate legislation. In circumstances of impartiality, the Local Government Act (see s.5.21), obliges the council member to vote, and there is no requirement that council members who have disclosed impartiality are to refrain from considering agenda items. 200 Were an order were issued in the terms sought at proposed order 7 of Annexure B, it would conflict with the obligations placed upon the Elected Members by the State legislature, and in addition would, in my view, address bias – actual or perceived, not unreasonable repeated conduct (i.e. workplace bullying).

[233] If actual or potential bias of the Triumvirate was the problem, then the issue is one as to whether Council (or the three Elected Members) is properly exercising its powers under its enacting legislation. This, in my view, can only be determined by a Court of competent jurisdiction. While the findings and conclusions reached during the course of writing this decision negate a requirement to address this point at length, in my view, final orders 7 and 8, set out in Annexure B, are beyond the jurisdiction of this Commission to grant. 201

Is it Mr Cain’s intention to interfere with the disciplinary process?

[234] Counsel for Mr Downing and the City submitted that Mr Cain’s filing of the application and request that the hearing be expedited, three months after first circulating the application to potential parties – appeared not to be based upon there being an imminent risk of bullying. Rather, the motivating force appeared to be the desire to have Mayor Howlett, Councillor Allen and Councillor Smith removed from the group of Elected Members who would consider and vote on the Council’s resolutions regarding the misconduct investigation which was to be considered in the 17 April 2020 SCM. Counsel for Mr Cain correctly noted that the risk does not have to be ‘imminent’.

[235] The Commission has stated that the anti-bullying jurisdiction should not be used as ‘a means of hampering, or even stopping justified disciplinary action, implemented by an employer, as a reasonable management response to an employee’s poor performance or misconduct’. 202 According to Counsel for Mr Downing and the City, based upon the evidence and the submissions of Mr Cain, the application sought to do that which the Commission has expressly deemed unacceptable.

[236] Counsel continued that such intention was revealed in Mr Cain’s submissions in which he argued for interim orders being granted to prevent Mayor Howlett, and Councillors Allen and Smith, from taking part in the discussions and consideration around the misconduct investigation or voting on any resolution arising from the misconduct investigation. Mr Cain had argued that the interim orders were necessary to ‘preserve the applicant’s cause of action’.

[237] As to the purpose of this application, and the events that led up to it being made, it is observed that come 23 and 24 October 2019, Mr Cain had not taken issue with the behaviour of Mayor Howlett, Mr Downing or Councillor Allen. His focus at that time was firmly fixed on Councillor Smith’s behaviour. What followed thereafter were numerous objections by Mr Cain about the procedures and processes adopted by the three Elected Members and Mr Downing to address: (a) his complaint of workplace bullying; and (b) the allegations of misconduct. At the heart of this matter, as evinced by the proposed orders sought, were Mr Cain’s concerns about bias.

[238] The aforementioned objections were characterised as behaviours which were unreasonable, unfair, unlawful, unauthorised, and undue. All of which, concerning the conduct post 23 and 24 October 2019, I have found not to be the case. While a wordsmith might by prolix turn of phrase attempt to dress certain conduct or behaviour (in this case predominately alleged procedural deficits) with the cloak of bullying, it is timely to recall the words of the Vice President in BOQ 203 who said that the following conduct was such ‘which one might expect to find in a course of repeated unreasonable behaviour that constituted workplace bullying’:

…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.

[239] While the list of behaviours set out in BOQ are not exhaustive they are indicative of the nature of behaviours which one might expect in these types of applications. There may well be occasions where management action is found to be unreasonable or has not been carried out in a reasonable manner. Hence giving rise to findings of behaviour such as bad faith. However, I have found that not to be the case here, and I do not consider it desirous to reflect on Mr Cain’s motives for making the application because they have no bearing on the findings made or conclusion reached in this case.

DEPUTY PRESIDENT

Appearances:
T Caspersz of Counsel for the Applicant
H Millar of Counsel for the City of Cockburn and S Downing
L Howlett, named person
L Smith, named person
K Allen, named person

Hearing details:
2020.
Perth (by video):
April 15, 16.

Printed by authority of the Commonwealth Government Printer

<PR718221>

Annexure A

Interim orders pursuant to ss. 595, 589 and 789FF of the Fair Work Act 2009

Pending determination of the within application, the Fair Work Commission as constituted by … ORDERS THAT:

1. The first respondent (Stuart Downing) shall refrain from taking any further action in relation to or being involved either directly or indirectly in the discussion or consideration or making by any person, including without limitation the Council of the City as constituted under the Local Government Act 1995 (WA) (the Council), of any determination including any resolution by the Council about, concerning or in relation to the bullying complaint and the misconduct allegations;
2. Without limiting the generality of order no. 1, the second, third and fourth respondents (respectively, Mayor Howlett, Councillor Smith and Councillor Allen) shall refrain from taking any further action in relation to or being involved either directly or indirectly in the discussion or consideration or making by any person of any determination including any resolution by the Council about, concerning or in relation to the bullying complaint and the misconduct allegations;
3. Nothing in these orders shall be construed as preventing or inhibiting any action or involvement by any officer of the City of Cockburn other than Stuart Downing and any Elected Member of the Council of the City of Cockburn other than Mayor Howlett, Councillor Smith and Councillor Allen from being involved either directly or indirectly in the discussion or the consideration of or the making by any person of any determination including any resolution by the Council about, concerning or in relation to the bullying complaint and the misconduct allegations;
4. Nothing in these interim orders shall be construed as preventing or inhibiting any inquiry or investigation into the bullying complaint and the misconduct allegations by the City of Cockburn, the Minister appointed under the Local Government Act 1995 (WA), the Department of Local Government, Sport and Cultural Industries established under that Act, the Public Sector Commissioner established under the Public Sector Management Act 1994 (WA) or any other body with jurisdiction in relation to such matters;
5. Unless the Commission orders otherwise, the parties shall keep confidential all documents filed in this application and proceedings and shall use such documents for the purpose of these proceedings only save as otherwise required by law or unless necessary to take professional advice in relation thereto or for the purposes of and relating to any inquiry or investigation referred to in the preceding order no. 4;
6. There be liberty to a party to apply to the Commission on 24 hours’ written notice to the other parties.

For the purpose of these interim orders –

i. ‘The bullying complaint’ means the applicant’s complaint notified in an email dated 23 October 2019 to the Elected Members of the City of Cockburn and a letter dated 24 October 2019 to Mayor Howlett, as amplified in an interview between the applicant and one Dr Sitlington on 5 December 2019;
ii. ‘The misconduct allegations’ means the allegations of misconduct levelled against the applicant first notified to him in a letter dated 6 December 2019 from Stuart Downing.

Annexure B

Orders sought by the applicant pursuant to s. 789FF of the Fair Work Act 2009

The Fair Work Commission as constituted by …

DECLARES AND ORDERS THAT:

1. The applicant was bullied at work by:

a. Stuart Downing;
b. further and alternatively, Mayor Howlett;
c. further and alternatively, Councillor Smith;
d. further and alternatively, Councillor Allen;

2. Within four weeks of the date of the Commission’s order, each of the respondents shall file in the Commission a programme of training to be undertaken by each of them on and in relation to the City of Cockburn’s Elected Member Code of Conduct or similar code of conduct (the Elected Member Code of Conduct Training);
3. Without limiting the generality of order no. 2, each of the respondents shall attend the Elected Member Code of Conduct Training;
4. Within four weeks of the date of the Commission’s order, each of the respondents shall file in the Commission a programme of training to be undertaken by each of them on and in relation to the City of Cockburn’s Bullying Policy for Staff (the Bullying Policy Training);
5. Without limiting the generality of order no. 4, each of the respondents shall attend the Bullying Training;
6. Stuart Downing shall refrain from taking any further action in relation to or being involved either directly or indirectly in discussion or the consideration of or the making by any person, including without limitation the Council, of any determination including any resolution by the Council about, concerning or in relation to the bullying complaint and the allegations of misconduct;
7. Mayor Howlett, Councillor Smith and Councillor Allen shall refrain from taking any further action in relation to or being involved either directly or indirectly in the discussion or the consideration of or the making by any person of any determination including any resolution by the Council about, concerning or in relation to the bullying complaint and the misconduct allegations;
8. Nothing in these orders shall be construed as preventing or inhibiting any action or involvement by any officer of the City of Cockburn other than Stuart Downing and any Elected member of the Council of the City of Cockburn other than Mayor Howlett, Councillor Smith and Councillor Allen being involved either directly or indirectly in the discussion or the consideration of or the making by any person of any determination including any resolution by the Council about, concerning or in relation to the bullying complaint and the misconduct allegations;
9. Nothing in these orders shall be construed as preventing or inhibiting any inquiry or investigation into the bullying complaint and the misconduct allegations by the City of Cockburn, the Minister appointed under the Local Government Act 1995 (WA), the Department of Local Government, Sport and Cultural Industries established under that Act, the Public Sector Commissioner established under the Public Sector Management Act 1994 (WA) or any other body with jurisdiction in relation to such matters.

For the purpose of these orders –

i. ‘The bullying complaint’ means the applicant’s complaint notified in an email dated 23 October 2019 to the Elected Members of the City of Cockburn and a letter dated 24 October 2019 to Mayor Howlett as amplified in an interview between the applicant and one Dr Sitlington on 5 December 2019;

ii. ‘The misconduct allegations’ means the allegations of misconduct levelled against the applicant first notified to him in a letter dated 6 December 2019 from Stuart Downing.

 1   Affidavit of Stephen Gerard Cain – 8 April 2020 (First Cain Affidavit) Annexure SC-4.

 2   Ibid Annexure SC-2.

Ibid Annexure SC-2.

 3   Ibid Annexure SC-6.

 4   Witness Statement of Logan Kenneth Howlett (Mayor Howlett Witness Statement) Annexure LKH-9.

 5   First Cain Affidavit Annexure SC-9.

 6   Ibid Annexure SC-9.

 7   Ibid Annexure SC-11.

 8   Ibid Annexure SC-10.

 9   [2020] FWC 1404 (‘Mayson’).

 10   PR718272.

 11   Fair Work Act 2009 (Cth), s.590.

 12   First Cain Affidavit Annexure SC-4.

 13  Ibid [9]-[11].

 14   Ibid Annexure SC-18.

 15   Ibid Annexure SC-18.

 16   Ibid Annexure SC-3.

 17   Ibid Annexure SC-3.

 18   Ibid [14].

 19   Ibid Annexure SC-3.

 20   Ibid Annexure SC-2.

 21   Ibid Annexure SC-2.

 22   Ibid Annexure SC-2.

 23   Ibid Annexure SC-2.

 24   Ibid Annexure SC-2.

 25   Ibid Annexure SC-2.

 26   Mayor Howlett Witness Statement [19].

 27   Ibid [19].

 28   Ibid [19].

 29   Ibid [21].

 30   First Cain Affidavit Annexure SC-4.

 31   Ibid Annexure SC-4.

 32   Ibid Annexure SC-4.

 33   Ibid Annexure SC-4.

 34   Ibid Annexure SC-4.

 35   Ibid Annexure SC-4.

 36   Mayor Howlett Witness Statement [23].

 37   Ibid [23].

 38   Ibid [28].

 39   Ibid [31].

 40   Ibid [32].

 41   Ibid [32].

 42   Ibid [34].

 43   Ibid [35].

 44   First Cain Affidavit Annexure SC-2.

 45   Ibid Annexure SC-2.

 46   Ibid Annexure SC-2.

Ibid Annexure SC-2.

 47   Ibid Annexure SC-2.

 48   Ibid Annexure SC-2.

 49   Ibid [26].

 50   Ibid [26].

 51   Mayor Howlett Witness Statement [35].

 52   Ibid [35].

 53   Ibid [41].

 54   Ibid [41].

 55   Ibid [43].

 56   First Cain Affidavit [27].

 57   Ibid [27].

 58   Ibid [29].

 59   Ibid [30].

 60   Ibid [31].

 61   Ibid Annexure SC-5.

 62   Ibid [40].

 63   Ibid [40].

 64   Ibid [40].

 65   Ibid [37].

 66   Ibid [37].

 67   Ibid Annexure SC-6.

 68   Mayor Howlett Witness Statement [49], Annexure LKH-4.

 69   Ibid [49], Annexure LKH-5.

 70   Ibid Annexure LKH-6.

 71   Ibid Annexure LKH-6.

 72   Ibid Annexure LKH-6.

 73   Ibid Annexure LKH-7A.

 74   Ibid Annexure LKH-7B.

 75   Ibid Annexure LKH-7B.

 76   Ibid Annexure LKH-7B.

 77   Ibid Annexure LKH-7B.

 78   Ibid Annexure LKH-8.

 79   Ibid Annexure LKH-8.

 80   First Cain Affidavit Annexure SC-22.

 81   Ibid Annexure SC-23.

 82   Ibid Annexure SC-23.

 83   Ibid [42].

 84   Ibid [45].

 85   Ibid [44].

 86   Ibid [47].

 87   Statement of Stuart Nigel Downing (Downing Statement) [36].

 88   Mayor Howlett Witness Statement [66].

 89   Ibid [79].

 90   Downing Statement [38].

 91   Ibid [39].

 92   Ibid [45].

 93   Ibid [49].

 94   Ibid [50].

 95   Mayor Howlett Witness Statement Annexure LKH-9.

 96   Ibid Annexure LKH-9.

 97   First Cain Affidavit [38].

 98   Ibid [39].

 99   Ibid [48].

 100   Ibid [48].

 101   Ibid [50].

 102   Ibid [50].

 103   Ibid Annexure SC-10.

 104   Ibid Annexure SC-10.

 105   Downing Statement [23].

 106   Ibid [51].

 107   Ibid [52].

 108   Ibid [53].

 109   Ibid [53].

 110   Ibid [55].

 111   Ibid [56].

 112   Ibid SND-18.

 113   Transcript PN1299.

 114   Downing Statement [24]; First Cain Affidavit [58], Annexure SC-11.

 115   First Cain Affidavit [58].

 116   Ibid Annexure SC-12.

 117   Ibid Annexure SC-12.

 118   Ibid Annexure SC-12.

 119   Ibid Annexure SC-12.

 120   Ibid Annexure SC-12.

 121   Ibid Annexure SC-12.

 122   Ibid Annexure SC-12.

 123   Ibid Annexure SC-12; Downing Statement [28].

 124   Downing Statement SND-19.

 125   Ibid SND-19.

 126   Ibid SND-19.

 127   Ibid SND-21.

 128   Ibid SND- 22.

 129   First Cain Affidavit [65].

 130   Ibid [65].

 131   Downing Statement [28].

 132   Ibid [29](c), (d) and (e); Annexure SND-10, SND-11 and SND-12.

 133   Ibid [29](a) and (b).

 134   Ibid [30].

 135   Ibid Annexure SND-9.

 136   First Cain Affidavit Annexure SC-14.

 137   [2017] FWC 4349.

 138   [2019] FWCFB 3740.

 139   [2008] WASCA 254.

 140   First Cain Affidavit [11].

 141   Ibid [11].

 142   [2019] FWCFB 1475.

 143   [2019] FWCFB 1475, [19].

 144   [2017] FWC 1886

 145   Ibid [25].

 146   Ibid [26].

 147   Ibid [26].

 148   Ibid [26].

 149   [2016] FWC 2260.

 150   Ibid [5].

 151   Quinn v Overland as cited in Australian Manufacturing Workers’ Union v WW Wedderburn Pty Ltd [2016] FWC 2260, [5].

 152   Lynette Bayly [2017] FWC 1886, [34].

 153   [2016] FWC 5848.

 154   [2019] FWCFB 1475, [19].

 155   [2020] FWC 1404.

 156   Ibid.

 157   Ibid.

 158   Mac v Bank of Queensland Limited & Others [2015] FWC 774, [79].

 159   Ibid [79].

 160   Ibid [80].

 161   Ibid [96].

 162   Ibid.

 163   [2019] FWC 5441.

 164   Ibid [34] – [35].

 165   [2014] FWCFB 9227.

 166   [2016] FWC 2308.

 167   [2014] FWCFB 9227, [53]; as cited in Purcell, [84].

 168   [2019] FWCFB 318.

 169   See Construction, Forestry, Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619, [59]; Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FWCFB 2042, [26]-[37]

 170   Macquarie Dictionary Publishers, Macquarie Dictionary Online (at 20 April 2020) ‘activity’.

 171   Ms SB [2014] FWC 2104.

 172   Ibid.

 173   Ibid.

 174   Georges and Telstra Corporation Limited [2009] AATA 731, [23] as cited in Ms SB [2014] FWC 2104, [49].

 175   Anti-bullying measure – Schedule 3 Fair Work Amendment Bill 2013 29 House of Representatives, [88].

 176   Ibid [103].

 177   Ibid [103].

 178   See Macquarie Dictionary Publishers, Macquarie Dictionary Online (at 20 April 2020) ‘act’.

 179   [2014] FWC 2104, [47]-[53].

 180   [2015] FWC 774.

 181   Ms SB [2014] FWC 2104.

 182   First Cain Affidavit Annexure SC-2.

 183   Ibid [26].

 184   Downing Statement [33].

 185   First Cain Affidavit [27].

 186   Ibid [37].

 187   Re George [2017] FWC 4349, [30].

 188   Ibid [30].

 189   Downing Statement [39].

 190   Ibid [45].

 191   Cain Statement Annexure SC-4, Attachment 16.

 192   Witness Statement of Donald Mervyn Green [9].

 193   Cain Statement Annexure SC-4.

 194   Ibid Annexure SC-4.

 195   Ms SB [2014] FWC 2104, [44].

 196   Thiess Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252, 78 NSWLR 94, [65]-[67]; Abigroup Contractors Pty Ltd v Workcover Authority of New South Wales (2004) 135 IR 317, [58]; Ms SB [2014] FWC 2104; Purcell v Farah and Mercy Education Ltd T/A St Aloysius College [2016] FWC 2308, [208].

 197   Macquarie Dictionary Publishers, Macquarie Dictionary Online (at 20 April 2020) ‘risk’; Purcell v Farah and Mercy Education Ltd T/A St Aloysius College [2016] FWC 2308, [208].

 198   Re CG [2014] FWC 6988, [49]-[50]; Purcell v Farah and Mercy Education Ltd T/A St Aloysius College [2016] FWC 2308, [208].

 199   Re George [2017] FWC 4349, [23].

 200   Witness Statement of Donald Mervyn Green DM6-2

 201   Re George, [33]-[40]. See also: Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140.

 202   [2019] FWC 5278, [26].

 203   [2015] FWC 774, [99].