DECISION

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

Rohit Rohit
(AB2020/466)

Application for an FWC order to stop bullying - applicant alleges colleague engaged in repeated unreasonable behaviour

Introduction

[1] Mr Rohit Rohit (the Applicant) made an application for orders to stop bullying pursuant to s 789FC of the Fair Work Act 2009 (the Act) on 13 July 2020 (the Application). He alleges that he has been bullied at work during his employment with Toll Transport Pty Ltd (Toll) by Mr Gary Ackland and Mr Andrew Braganza who are Toll managers at the Coles Distribution Centre (CDC) at Laverton (the Laverton site) where Toll has a contract.

[2] The Applicant alleges that he has been exposed to a pattern of repeated bullying and harassment by Mr Ackland and Mr Braganza which may be summarised as follows;

(1) The Applicant alleges that he was bullied by Mr Ackland and Mr Braganza following an incident that occurred at the Coles Toronga store on 3 February 2020 during which the Applicant claims to have been verbally abused by an employee of Coles (Allegation 1 – Coles Toronga incident).

(2) The Applicant claims to have been bullied/harassed by Mr Ackland when directed on 10 March 2020 to undertake scissor hoist training which all truck drivers were required to undertake as a consequence of client (Coles) requirements (Allegation 2 – Scissor hoist incident).

(3) The Applicant alleges that he was bullied/harassed in front of work colleagues by Mr Braganza on 31 March 2020 when he was directed to clock off immediately rather than waiting for a particular time to clock off at the sign-out machine (Allegation 3 - Sign-out machine incident).

(4) The Applicant alleges that he was bullied/harassed by Mr Ackland in respect of disciplinary action arising from a vehicle collision at the Laverton site (Allegation 4 – Vehicle damage disciplinary action incident).

(5) The Applicant alleges that he was bullied/harassed by Mr Ackland in relation to a proposed roster change in that Mr Ackland improperly raised the issue of the Applicant’s family circumstances in a meeting conducted on 10 June 2020 (Allegation 5 – Roster change incident).

(6) The Applicant alleges that he was bullied/harassed and that his privacy was infringed upon when, following a minor collision on 23 July 2020 in which the Applicant was involved, Mr Braganza, Mr Ackland and another colleague Mr Hodge viewed in-cab camera footage of the Applicant in an open plan office and that other staff were able to see the footage (Allegation 6 – Review of video footage incident).

(7) The Applicant alleges that he was bullied/harassed by Mr Braganza and Mr Ackland through instructions/directions in respect of load allocations to the Applicant on 21 August 2020 (Allegation 7 – Load allocation incident).

[3] By way of remedy the Applicant seeks orders that;

(1) Mr Ackland and Mr Braganza be transferred from the Laverton site to another Toll site;

(2) All staff at the Laverton site, including supervisors and managers, undertake training in bullying/harassment policies;

(3) Toll’s policy on bullying and harassment be reviewed by the Commission; and

(4) The final warning issued to the Applicant in respect of the Vehicle damage disciplinary action incident be formally withdrawn.

[4] A conference of the parties was conducted on 7 August 2020 following which I issued a Recommendation on 10 August 2020. The Recommendation failed to resolve the matter. Further conferences of the parties were then conducted on 4 & 22 September 2020 that also failed to resolve the Applicant’s concerns. The Applicant then requested that his application be formally determined following which directions were issued for the filing of submissions and materials and the matter was set down for a hearing on 5 November 2020.

[5] At the hearing the Applicant appeared on his own behalf and gave sworn evidence. He also called three witnesses;

•  Mr Gurvinder Singh – Toll driver at Laverton site

•  Mr Diljit Singh – Toll driver at Laverton site

•  Mr Jasvir Singh Mann – Toll driver at Laverton site

[6] Toll, Mr Braganza and Mr Ackland were represented at the hearing by Toll’s Senior IR Manager Ms C McCutcheon. Three witness were called by Toll to give evidence;

•  Mr G Ackland – Toll Site Manager at Laverton site

•  Mr A Braganza – Toll Operations Manager at Laverton site

•  Ms H Pink – Toll HR Business Partner

Background and Evidence

[7] The Applicant commenced employment with Toll as a truck driver on 27 February 2019. He is employed under the terms of the Toll – TWU Agreement 2017 - 2020 1 (the Agreement) and is based at the Laverton site.2

[8] Mr Ackland is the Site Manager at the Laverton site and commenced in that role in April 2020. He is responsible for all operations at the Laverton site including safety, compliance, customer relationships, performance management and disciplinary matters. 3 Mr Ackland says he does not have much day to day interaction with the drivers as they are managed by a team of 8 fleet allocators and supervisors at the Laverton site.4 Mr Braganza is the Operations Manager at the Laverton site, has been employed by Toll since February 2019, reports directly to Mr Ackland and is responsible for day to day site operations, including managing the fleet operators and supervisors who allocate work. Mr Braganza provides support to Mr Ackland in relation to performance management and disciplinary matters.5

[9] I now turn to the evidence in relation to the Applicant’s specific allegations.

Allegation 1 – Coles Toronga incident

[10] The Applicant states that he was delivering a load to the Coles Toronga store on 3 February 2020 during the course of which delivery he claims that there was an incident in which he was verbally abused and threatened by a Coles Storeman. He immediately reported the incident to the Toll Fleet Controller during the course of which conversation he stated that he was so upset that he was not in a state to drive the truck back to the Laverton site. Shortly after the initial phone call to the Fleet Controller, the Applicant received a phone call from Mr Craig Hodge who is the Program Risk and Safety Manager for Toll at the Laverton site. He advised the Applicant that if he was not comfortable driving back, he (Mr Hodge) would pick him up. Mr Hodge also told the Applicant that he would then need to take the Applicant to a doctor to get him medically assessed as to whether he was fit to drive. 6

[11] The Applicant says that he was scared at the prospect of being medically assessed and potentially being unable to drive which would impact his pay. He felt he had no choice and did not want to expose himself to a risk of not being able to drive so he made the decision to drive back to the Laverton site. On the 4 February 2020 the Applicant attended a medical practice and received a certificate stating that he was unfit to work due to a medical condition from 5 to 6 February 2020. 7 The Applicant made a formal complaint about the incident which led to an investigation. Under cross examination the Applicant confirmed that at the conclusion of the investigation he spoke with Mr Ackland who advised him of the outcome.

[12] Mr Ackland states that at the time of the incident he was not employed at the Laverton site but became involved in the operations at the site in early February even though he did not commence in the Site Manager role until April 2020. He says he became involved in the investigation into the incident at the Coles Toronga store in early March 2020 and reviewed the various witness statements that had been taken at the time of the incident. He also spoke with the Coles Toronga store manager. Mr Ackland says that he then met with the Applicant to advise him of the outcome of the investigation which was that there were two contradictory versions of the events and that the Applicant’s allegations were unable to be substantiated. He said to the Applicant that both parties could have handled the situation better. 8

[13] Under cross examination Mr Ackland acknowledged that Toll’s management of the incident on the day could have been better. Specifically, Toll management should have directed the Applicant to park his truck up so that he could be picked up and driven back to the Laverton site given his stated distress arising from the incident.

Allegation 2 – Scissor hoist incident

[14] The Applicants states that he was pressured to do scissor hoist training by Mr Ackland and Mr Hodge on 10 March 2020 in circumstances where he believed that the drivers were not being paid for this extra duty. According to the Applicant, Mr Ackland and Mr Hodge spoke to the Applicant in an aggressive manner in the open office and told him that unless he did the training, he would not get any work. 9

[15] The scissor hoist training arose from a safety initiative introduced by Coles according to Mr Ackland and was required to be undertaken by all Laverton site drivers. If drivers did not complete the training, they would be unable to make deliveries to Coles stores. Following a conversation between Mr Ackland and the Applicant, the Applicant agreed to do the training. Mr Ackland rejected that he had made any threats or otherwise to the Applicant. 10

Allegation 3 - Sign-out machine incident

[16] On 31 March 2020 the Applicant says that he was insulted and humiliated in front of other drivers when he was instructed to clock off while standing in front of the sign-out machine waiting for a particular time to elapse. The Applicant says that he was waiting for the time to click over so that the sign-out time matched his ‘run sheet’ and that he would be paid to the nearest 15 minutes. The Applicant says that he felt targeted and singled out by Mr Braganza. The Applicant subsequently sent an email to Mr Braganza explaining why he was waiting and sought clarification as to the policy in respect of whether drivers were paid by the minute or to the nearest 15 minutes. 11

[17] In a meeting conducted on the 1^st April 2020 the Applicant, accompanied by Mr Gurvinder Singh, met with Mr Braganza to discuss the previous day’s incident. Mr Singh confirmed in his evidence that Mr Braganza had said in the meeting that it had not been his intention to insult the Applicant but that he was concerned that some drivers ‘add extra time’ and that Mr Braganza was anxious to discourage that practice as it cost the company money. Following further discussion in relation to the incident Mr Braganza apologised to the Applicant. 12

[18] Mr Braganza states that he observed the Applicant standing at the sign-out machine waiting to clock off for the day so he went over and asked him why he was waiting, told him he was wasting time and that he should sign out if he had finished work for the day. Mr Ackland did not recall seeing any other drivers in the vicinity of the sign-out machine and rejected the Applicant’s assertion that he had spoken aggressively. He acknowledged receiving the Applicant’s email later that day but did not respond to it. 13

[19] Mr Braganza agreed that a meeting with the Applicant was held on 1 April 2020 at which he attended with Mr Hodge. During that meeting Mr Braganza says he clarified the sign-out procedures and assured the Applicant that it was not his intention to target the Applicant in questioning him at the sign-out machine on 31 March 2020.

Allegation 4 – Vehicle damage disciplinary action incident

[20] The Applicant was involved in an accident in his truck on the weighbridge at the Laverton site on 4 May 2020 which led to an investigation. The estimated cost of the damage was approximately $22,000. Shortly after the accident the Applicant was interviewed and stood down pending the outcome of the investigation. During a second interview on 6 May 2020 in relation to the incident the Applicant admitted that he had been distracted and apologised over the incident. In a further meeting on 13 May 2020 at which Mr Ackland and Mr Braganza attended along with the Applicant and his support person, the Applicant was advised of the disciplinary outcome, that of a final written warning. 14

[21] According to Mr Ackland the Applicant was unhappy with the disciplinary outcome and requested the contact details of Ms Connie Coleiro (HR Business Partner) who had been present at the 6 May 2020 meeting. Mr Ackland declined to provide her direct phone number as she did not have a Toll mobile number and he was reluctant to provide her personal contact details. Mr Ackland advised the Applicant that he could contact Toll’s ‘HR Assist’ or he could speak to the TWU, as Mr Ackland understood the Applicant’s brother was a TWU delegate. 15 Mr Braganza confirmed this exchange in his evidence.16

[22] The Applicant says that he felt treated unfairly given his honesty and admission of inattention and error. He also says that he was pressured to accept the disciplinary action by signing the final warning letter during the meeting on 13 May 2020. 17 He also states that Mr Ackland and Mr Braganza failed to follow Toll’s grievance policy by directing him to take up any concerns he had with the TWU rather than allowing him to resolve the matter directly with Toll which was his preference. The Applicant referred in his evidence to a text message from Mr Braganza that evening in which Mr Braganza confirmed that if the Applicant wanted to pursue any concerns over the final warning he needed to “to go through the union”.18 Mr Braganza agreed that he sent the text and states that he did not mention HR in the text as Mr Ackland had already advised the Applicant of that path during the meeting earlier that day.19

[23] Mr Ackland rejected that the Applicant had been pressured to sign the warning letter. He further stated that asking employees to sign off on disciplinary letters is standard practice as it ensures a record of employee acknowledgement of the content of the letter and does not constitute an employee agreeing with the outcome. 20 According to Mr Ackland the Applicant provided a certificate of capacity on 18 May 2020 which stated he was unfit for normal duties from 19 May to 17 June 2020 and also made a formal complaint to Group Security regarding the final warning.21 The final warning was not withdrawn.

Allegation 5 – Roster change incident

[24] On 10 June 2020 a meeting was conducted involving the Applicant, his support person Mr Diljit Singh, Mr Ackland and Ms Holly Pink, who is a Toll HR Business Partner. The purpose of the meeting was to conduct a mediation session in relation to a formal bullying complaint the Applicant had made on 19 May 2020, the details of which were provided to Ms Pink in an email from the Applicant on 25 May 2020. 22

[25] Mr Ackland states that at the conclusion of the above-referred meeting on 10 June 2020 he provided the Applicant with a commencement of consultation letter regarding a proposed roster change which if implemented would have required the Applicant to change his days and hours of work. Two roster options were provided. The Applicant complains that in discussing the proposed roster change Mr Ackland improperly raised and discussed the Applicant’s family circumstances. Comments allegedly made included that it would be okay if the Applicant didn’t see his wife for 3 days as a consequence of the roster change, and that he (the Applicant) could look after his new-born child on his days off when his wife was working. Mr Diljit Singh confirmed this exchange in his evidence. 23 At the conclusion of the discussion Ms Pink suggested to the Applicant that he take the letter home, consider which option works best for him and discuss it with his wife.24

[26] The Applicant also states that he felt threatened by Mr Ackland as he claims that during the course of the roster discussion Mr Ackland said to him in the context of the Applicant’s resistance to the roster change that “one of your friends have taken me to fair Work and nothing has happened against me”, the perceived threat being that there was no way to resist the roster change. Mr Diljit Singh confirmed the exchange. 25

[27] Mr Ackland denied making the alleged comments in relation to having been taken to Fair Work and says that he cannot recall any mention of Fair Work in the meeting. 26 Ms Pink says she did not hear the comments alleged to have been made.27

[28] Mr Ackland denied pressuring the Applicant to accept a particular roster change and stated that the business was making roster changes that impacted all drivers. Following consideration of the proposed roster change, the Applicant requested an alternative arrangement whereby he would work Tuesday to Saturday with his starting and finishing times remaining unchanged. Mr Ackland agreed to the Applicant’s request. 28

Allegation 6 – Review of video footage incident

[29] On 23 July 2020 the Applicant was involved in a minor accident in which a third party hit the mirror of the Applicant’s truck while it was stationary at traffic lights. The Applicant reported it to the Fleet Controller and upon returning to the Laverton site was requested to undertake a drug and alcohol test and provide information relating to the accident. 29

[30] Mr Braganza as part of the investigation requested a copy of the in-cab video footage consistent with Toll’s Use of In-Cab Camera Footage Group Policy. 30 On receipt of the footage which he is authorised to request along with Mr Ackland, Mr Braganza opened the footage up on his computer at his desk which is situated in an open plan office. Mr Ackland and Mr Hodge were also present to view the footage. On opening the footage, Mr Braganza realised that the footage received was from an incorrect time period and he closed it immediately. Mr Braganza states that he was unaware that there were any other employees in the vicinity apart from Mr Ackland and Mr Hodge who are both authorised to view in-cab camera footage for the purpose of conducting an investigation.31

[31] The Applicant alleges that Mr Braganza opened the video footage and that other employees not authorised to view the footage were in the vicinity and able to view the footage. He says that this conduct amounted to breach of privacy, intentional spying and was part of targeting him. He further contends that the viewing of the footage was in breach of Toll policy and part of a campaign by his mangers to frame him. 32

[32] Mr Braganza confirmed that following concerns raised by the Applicant in relation to privacy, it was now common-practice for in-cab camera footage to be only viewed in a private office. 33

Allegation 7 – Load allocation incident

[33] The Applicant alleges that on 21 August 2020 he was intimidated by a staff member who was working under the direction of management whereby his allocated work got “snatched in front of me through the Fleet allocator and given to a Anglo-Australian Driver because that driver is one of their favourites.” 34 He states that the intimidation which occurred under the supervision of Mr Ackland and Mr Braganza was racially motivated.

[34] Mr Braganza gave evidence that a load was allocated by a Fleet Allocator to another driver prior to the Applicant’s arrival at work on 21 August 2020 and then on the Applicant’s arrival was also mistakenly allocated to him. The Applicant was then notified of the error and the mistakenly allocated load was taken off him. The Applicant raised concerns with Mr Braganza following which he spoke with the fleet allocators arising from which discussion he was satisfied that a genuine mistake had been made. This was then explained by Mr Braganza to the Applicant and he was allocated another load for the day which also generated overtime. Mr Braganza states that he did not instruct the fleet allocators to not allocate the load in question to the Applicant. 35

Other matters

[35] The Applicant furnished various letters from medical practitioners which he says provide further evidence that his treatment by Mr Ackland and Mr Braganza has had an impact on his health and constitutes bullying, harassment and racial discrimination. Those statements are as follows;

(1) A letter dated 6 October 2020 from Dr Mohammed Hossain which states that he saw him on 18 May 2020 during which consultation the Applicant reported to him that he had “experienced bullying, harassment and racial discrimination at workplace happened on 15^th May 2020…” 36

(2) A letter dated 6 October 2020 from Dr Neil Acharekar in which he states that he saw the Applicant on 28 May 2020 during which consultation the Applicant had reported he “had experienced bullying, harassment and racial discrimination at workplace which had occurred on 15 May 2020 at Toll Logistics, Laverton…” 37

(3) A letter dated 15 October 2020 from Dr Angie Aquilina (Chiropractor) in which she referred to an initial consultation with the Applicant on 6 July 2020 and 4 treatments he had received up to the 15 October 2020. Dr Aquilina in her letter refers to the Applicant’s particular medical condition but says nothing about the alleged causes. 38

Legislation

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

“789FC Application for an FWC order to stop bullying

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

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

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

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

(4) The regulations may prescribe:

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

(b) a method for indexing the fee; and

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

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

“789FD When is a worker bullied at work?

(1) A worker is bullied at work if:

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

(i) an individual; or

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

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

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

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

(a) the person is:

(i) a constitutional corporation; or

(ii) the Commonwealth; or

(iii) a Commonwealth authority; or

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

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

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

“789FF FWC may make orders to stop bullying

(1) If:

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

(b) the FWC is satisfied that:

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

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

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

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

(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body—those outcomes; and

(b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes—that procedure; and

(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes—those outcomes; and

(d) any matters that the FWC considers relevant.

Consideration

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

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

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

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

[40] In approaching the first pre-requisite, the task was considered by Hatcher VP in Amie Mac³⁹ and in doing so he identified that it was necessary to determine firstly whether the applicant was a worker as defined in s. 789FC(2). I respectfully adopt the Vice President’s reasoning. Subject to having found the applicant to be a worker as defined, it is then necessary to be satisfied that the applicant worker “reasonably believes he or she has been bullied at work.” In considering what constitutes a reasonable belief that would establish the necessary application standing the Vice President observed as follows;

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

[80] It can be anticipated that in most cases it will not be in dispute that the applicant reasonably believes he or she has been bullied at work such as to permit the making of an application under s.789FC(1), and the Commission will be able to find without difficulty that the first prerequisite in s.789FF(1) is satisfied. I cannot identify any decided anti-bullying case to date in which the making of an application under s.789FC(1) was put in issue. However in this case the respondents have, in their Points of Defence, contended that Ms Mac’s belief that she had been bullied at work was not, objectively, reasonable, and accordingly her application was beyond the Commission’s jurisdiction. Accordingly it is necessary for me to give more detailed consideration to this issue. (footnotes omitted)” ⁴⁰

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

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

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

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

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

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

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

“[99]……… During a longueur in the hearing, I attempted to draw up a list of the features at least some of which one might expect to find in a course of repeated unreasonable behaviour that constituted bullying at work. My list included the following: intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination……”41

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

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

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

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

Has the Applicant been “bullied at work”?

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

Allegation 1 – Coles Toronga incident

[47] There is no dispute between the parties that the Applicant was involved in an incident at the Coles Toronga store on 3 February 2020 involving himself and a Coles employee. Nor is it in dispute that shortly after reporting the incident the Applicant had a discussion with Mr Hodges following which the Applicant decided to drive his truck back to the Laverton site from the Coles Toronga store despite Mr Hodges offering to pick him up. The Applicant says he made the decision to drive back out of a concern that if he didn’t do so he would be required to undertake a medical assessment which he believed could have resulted in him not being able to work. I accept the Applicant’s explanation for his decision to drive back to the Laverton site.

[48] There is no evidence that there was a direct discussion between the Applicant and either Mr Braganza or Mr Ackland prior to the Applicant’s decision to drive back to the Laverton site. In fact, Mr Ackland hadn’t even commenced in the role of Site Manager at that stage and only became involved in early March 2020 as part of the investigation into the incident and close out of the investigation with the Applicant. In circumstances where neither Mr Braganza nor Mr Ackland were involved in communication with the Applicant at the time of his decision to drive back to Laverton immediately after the Coles Toronga incident, it cannot be said there was unreasonable conduct on their part that led to the Applicants decision.

[49] Mr Ackland readily conceded that Toll could have handled the situation better on the day and should have directed the Applicant to park his truck up given his stated distress. I agree with Mr Ackland’s concession on this point. Toll should not have left it to the Applicant to decide whether he drove back to the Laverton site. That misjudgement on the part of Toll supervision on the day may be criticised now but I am not persuaded that the failure to direct the Applicant to park his truck up on the day of the incident constituted unreasonable behaviour directed towards the Applicant, let alone by Mr Ackland or Mr Braganza.

[50] As regards the post incident investigation I am satisfied that an investigation was conducted in relation to the Applicant’s complaints regarding the Coles Toronga store employee’s behaviour towards him and the outcome was that the Applicant’s allegations were not substantiated due to contradictory versions provided by the involved parties. This outcome was communicated directly to the Applicant by Mr Ackland, which the Applicant acknowledged. While the Applicant may have felt aggrieved with the outcome, the lack of substantiation of his allegations does not support an argument that there was either a lack of effort in investigating the allegations or a lack of support for the Applicant on the part of Toll or Mr Ackland.

[51] I am not persuaded that the conduct of either Mr Ackland (who was not in the Laverton Site Manager role at the time) or Mr Braganza, on the day of the incident on the 3 February 2020, constituted unreasonable behaviour directed towards the Applicant. Nor am I persuaded that the post incident investigation, in which Mr Ackland became belatedly involved, constituted unreasonable behaviour directed towards the Applicant.

Allegation 2 – Scissor hoist incident

[52] I accept Mr Ackland’s unchallenged evidence that all Toll drivers at the Laverton site were required to undertake scissor hoist training due to their client’s (Coles) safety requirements. That the Applicant may have been unhappy about that because he felt that he and the other drivers were not being adequately compensated for the extra duties does not found a claim of unreasonable behaviour directed towards him by Mr Ackland. The Applicant was not singled out and any suggestion to the contrary is misconceived.

[53] There was a discussion between Mr Ackland and the Applicant on 10 March 2020 during which I accept Mr Ackland stated to the Applicant that unless he did the training, he would be unable to deliver loads to Coles stores. Such a statement is unsurprising given Mr Ackland’s evidence that the training requirement was imposed as a mandatory requirement by Coles. While the Applicant may have perceived Mr Ackland’s statement as a threat, I do not agree with that characterisation. It was a simple and perhaps blunt statement of the reality confronted by Toll and its drivers as a consequence of its key customer’s requirements. The pressure the Applicant perceived that he should do the training was due in my view to reasonable management action carried out in a reasonable manner by Mr Ackland.

Allegation 3 - Sign-out machine incident

[54] It is not contested that on 31 March 2020 the Applicant was at the sign-off station waiting for a particular time to clock off. The Applicant conceded in his evidence that he was doing so to ensure that he was paid to the nearest 15 minutes and to ensure that his working time matched his run sheet. I accept that Mr Braganza challenged the Applicant and directed him to clock off if he had finished work for the day. I also accept that Mr Braganza did so out of a concern that some employees were abusing the sign-off system for the purpose of getting additional pay even though they had finished work for the day. That concern appears to have been borne out by the Applicant’s own evidence that he was seeking to ensure he got rounded up to the nearest 15 minutes.

[55] The Applicant says that Mr Braganza was aggressive and that he felt singled out and humiliated as he states the incident took place in front of other staff. Mr Braganza says he could not recall seeing other drivers in the vicinity and rejected the Applicant’s evidence that he was aggressive. Unhelpfully, no other witnesses were called to give evidence as to the incident. The fact that the Applicant felt so aggrieved by the incident leads me to believe that it was more likely than not that other staff were in the vicinity, the presence of witnesses likely aggravating the Applicant’s sense of injury. There is insufficient evidence before me however to conclude that Mr Braganza was aggressive as asserted by the Applicant.

[56] I am satisfied that in a follow up meeting on 1 April 2020 Mr Braganza assured the Applicant that he had not intended to single him out or insult him. I also accept that in apologising to the Applicant, Mr Braganza implicitly acknowledged the impact the incident had on the Applicant.

[57] In my view Mr Braganza had a right to challenge the Applicant and direct him to clock off. The Applicant by his actions was seeking to secure additional payment even though he had finished work. However, the manner in which Mr Braganza raised the issue with the Applicant was not appropriate. The direction should have been given quietly or in private.

Allegation 4 – Vehicle damage disciplinary action incident

[58] I am satisfied that the Applicant’s inattention, which he concedes led to a collision on the Laverton site weighbridge on 4 May 2020, caused significant damage and cost to his employer of some $22,000. The investigation that followed led to a final warning being issued to the Applicant which he contends was harsh having regard to his honesty and contrition. The Applicant’s sense of injustice as to the disciplinary action he received is utterly misplaced when one considers the potential implications of inattention while driving a heavy vehicle. I am not persuaded that the final warning was inappropriate or constituted unreasonable conduct on the part of Mr Ackland or Mr Braganza.

[59] As regards the request for the Applicant to sign the final warning letter, I accept that the request is standard practice for Toll as it is for many other employers. I also accept Mr Ackland’s evidence that an employee by signing is not acknowledging that they agree with the particular disciplinary action but rather are acknowledging receipt of the letter and disciplinary outcome.

[60] It is clear that the Applicant was unhappy with the final warning and he wanted to know how he could challenge it. Mr Ackland gave evidence, confirmed by Mr Braganza’s evidence, that he told the Applicant during the meeting on 13 May 2020 that he could take up his concern with HR Assist or the TWU. While the subsequent text message from Mr Braganza to the Applicant referred only to the TWU I don’t regard that in itself as significant.

[61] I am satisfied that Toll’s investigation of the weighbridge accident that occurred on 4 May 2020 and its decision to issue a final warning to the Applicant constituted reasonable management action carried out in a reasonable manner.

Allegation 5 – Roster change incident

[62] The Applicant was notified of a proposed roster change during a meeting on 10 June 2020 with Mr Ackland and Ms Pink. Toll were implementing roster changes in respect of all of its drivers at the Laverton site. The Applicant’s notification was consistent with Toll’s consultation obligation under the terms of the Agreement which relevantly states as follows;

“14. Consultation on workplace change

…………………

(c) In addition to the above, where there is a proposed change to Transport Workers’ regular rosters or ordinary hours of work Toll must provide information to the Transport Workers about the change and invite the affected Transport Workers to give their views about the impact of the change, including any impact in relation to their family or caring responsibilities.

…………………..”

[63] The Applicant took exception to Mr Ackland’s alleged comments during the meeting on 10 June 2020 regarding his family circumstances and his (Mr Ackland’s) suggestions as to how the Applicant could manage those family responsibilities. I am satisfied that Mr Ackland did make the comments regarding the Applicant’s family responsibilities attributed to him on the basis of the evidence of Mr Diljit Singh. While the Applicant was obviously sensitive to any reference to his family in the context of the proposed roster change, Toll was in fact compelled to consider the impact of the proposed roster change on the Applicant’s family or caring responsibilities.

[64] In my view it was not only appropriate but necessary for Mr Ackland to consider the impact of the proposed roster change on the Applicant’s family and caring responsibilities, consistent with Toll’s obligations under the consultation clause in the Agreement. Perhaps it could have been done in a more sensitive manner, but I am not persuaded that the manner in which the issue was raised and discussed constituted unreasonable conduct by Mr Ackland directed towards the Applicant.

[65] Notwithstanding the Applicant’s concerns regarding the manner in which the roster change proposal was raised and discussed on 10 June 2020 in the context of his family and caring responsibilities, it is telling in my view that Toll ultimately agreed to an alternate roster proposal put forward by the Applicant. The accepted roster allowed the Applicant to better manage his family and caring responsibilities then did the initial roster proposal put forward during the meeting on 10 June 2020. The willingness of Toll to consider the family and caring responsibilities of the Applicant in agreeing to an alternative roster undermines the Applicant’s complaint that he was subject to bullying/harassment.

[66] I turn now to the alleged comments made by Mr Ackland in the meeting on 10 June 2020 regarding him having been previously taken to the Commission by another employee without success. Mr Ackland denies having made the comments and Ms Pink who was at the meeting had no recollection of the comments being made. That evidence was in conflict with the evidence of both the Applicant and Mr Diljit Singh. Unhelpfully, neither party sought to challenge the conflicting evidence of the other party’s witnesses on this point during cross examination. In the circumstances I prefer Mr Diljit Singh’s evidence. Toll did not seek to challenge that evidence under cross-examination or otherwise call into question the credit of Mr Singh.

[67] Having accepted Mr Singh’s evidence it appears that the comment was made by Mr Ackland in the context of the roster discussion and the rights Toll had to implement roster change under the Agreement. True it is that, subject to complying with its consultation obligations, Toll has an ability to alter the hours of work under the terms of the Agreement. Mr Ackland’s comments appear to have been framed in that context and were at the very least clumsily communicated. Those comments may have reasonably given rise to a perception on the Applicant’s part that he was being threatened or pressured to accept the roster change. In my view the explanation by Mr Ackland of Toll’s rights under the Agreement was heavy handed. So much is clear by Ms Pink’s intervention to encourage the Applicant to take the letter home and discuss it with his wife.

[68] I consequently find that the conduct of Mr Ackland in relation to his comments on the inability of the Commission to interfere in a decision of management at the Laverton site were ill-judged and not appropriate in the context of a discussion with the Applicant on a roster change. To that extent I find the comments were unreasonable and counterproductive in circumstances where the relationship of the Applicant with Mr Ackland appeared not particularly constructive, more so in the wake of the final warning the Applicant received on 13 May 2020.

Allegation 6 – Review of video footage incident

[69] I am satisfied that the practice of viewing in-cab camera footage in an open plan office, as occurred following the Applicant’s 23 July 2020, was not appropriate. Mr Braganza was entitled to request and view the footage consistent with the In-Cab Camera Footage Group Policy as part of his investigation of the minor accident the Applicant was involved in. Mr Braganza’s desk is an open plan office and by viewing the footage at his desk the potential arose that staff not authorised to view the footage may have been able to view the footage.

[70] The Applicant complained that other staff viewed the footage, although Mr Braganza gave evidence that he was unaware that other staff were in the area, aside from Mr Ackland and Mr Hodge who were at Mr Braganza’s desk at the time. No evidence was adduced that confirmed which other employees viewed the footage although I accept that the Applicant had a legitimate concern as to the lack of privacy that arose from the practice of viewing the footage in an open plan office environment.

[71] As regards the Applicant’s claim that the viewing of the footage was part of intentional spying, targeting, a breach of policy and an attempt to frame him, those submissions are devoid of merit. It is clear that the Applicant was involved in a minor accident on 23 July 2020 for which he was required to undertake a drug and alcohol test. The In-Cab Camera Footage Group Policy makes clear that authorised staff, which includes both Mr Braganza and Mr Ackland, may access in-cab footage to “assist in the investigation of incidents, accidents, near misses and complaints.” 42 Mr Braganza’s request for the footage following the minor accident was consistent with the policy.

[72] I am not persuaded that Mr Braganza’s request and viewing of in-cab video footage of the Applicant by him, Mr Ackland and Mr Hodge was unreasonable conduct directed towards the Applicant. Toll has properly conceded however that the practice of viewing in-cab camera footage in the open plan office was not ideal and has now changed its practice so that footage is viewed in a private office to avoid any risk of unauthorised staff being able to view the footage. This is an appropriate measure and should be retained.

Allegation 7 – Load allocation incident

[73] The Applicant alleges that a load allocated to him was “snatched” from him and given to a more favoured Anglo-Australian driver on the morning of 21 August 2020. Mr Braganza’s unchallenged evidence, which I accept, was that a load previously allocated to another driver that morning prior to the Applicant’s arrival at work was then reallocated by a fleet allocator to the Applicant by mistake. That mistaken allocation to the Applicant was then corrected by the fleet allocator which the Applicant took umbrage at, perceiving it was a continuation of a pattern of bullying/harassment directed towards him.

[74] There is no evidence that the allocation of the load, albeit mistakenly made to the Applicant on the morning of the 21 August 2020, was made under the direction of either Mr Braganza or Mr Ackland. Mr Braganza became involved only when the Applicant came to him to complain about the issue, following which Mr Braganza investigated and established that the allocation of the load to the Applicant was made by mistake and then corrected by the fleet allocator. Mr Ackland had even less involvement as he only became aware of the issue when the Applicant and Mr Braganza came to his office to discuss the issue, arising from which he attributed the incident to a misunderstanding on the Applicant’s part in respect of load allocation.

[75] To address the Applicant’s concern Mr Braganza arranged for the allocation of a different load which as it turned out also ensured the Applicant received overtime for the load. The Applicant’s claim that he was subject to bullying/harassment by either Mr Braganza or Mr Ackland in relation to the load allocation on 21 August 2020 is in my view without any merit.

Summary of allegations

[76] I have found that Mr Ackland engaged in inappropriate behaviour by the manner in which he sought to discourage the Applicant from resisting the roster change by way of the comments Mr Ackland made about the role of the Commission in the meeting on 10 June 2020 meeting (Allegation 5 – Roster change incident). I have also found that the manner in which Mr Braganza confronted the Applicant regarding his sign-off on 31 March 2020 ought to have been handled differently, that is quietly and privately.

[77] I have also made findings in relation to the remaining allegations. There were some incidents where Mr Ackland and Mr Braganza engaged in reasonable management action carried out in a reasonable manner; specifically, Allegations 2 & 4. I am also satisfied that the balance of the incidents on which I have made findings did not involve unreasonable behaviour on the part of either Mr Ackland or Mr Braganza.

[78] While I have found one instance of inappropriate management behaviour by both Mr Ackland and Mr Braganza, it is limited and minor in nature in my view and does not establish a basis for finding that the Applicant has been bullied at work.

Conclusion

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

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

DEPUTY PRESIDENT

Appearances:

R. Rohit on his own behalf

C. McCutcheon for the Respondent

Hearing details:

2020
Melbourne
5 November

Printed by authority of the Commonwealth Government Printer

<PR724220>

 1   AE426430 PR598506

 2   Exhibit R1, Witness Statement of Mr Gary Ackland dated 2 November 2020 at [6]

 3   Ibid at [2]-[4]

 4   Ibid at [8]

 5   Exhibit R2, Witness Statement of Mr Andrew Braganza dated 29 October 2020 at [1]-[4]

 6   Exhibit A1, Witness Statement of Mr Rohit Rohit at page 3

 7   Ibid at page 5

 8   Exhibit R1 at [10]-[13]

 9   Exhibit A1

 10   Exhibit R1 at [14]-[18]

 11   Exhibit A1 at page 7

 12   Exhibit A2, Witness Statement of Mr Gurvinder Singh, dated 15 October 2020 at [6]-[9]

 13   Exhibit R2 at [7]-[11]

 14   Exhibit R1 at [19]-[24]

 15   Ibid at [25]

 16   Exhibit R2 at [17]

 17   Exhibit A1 at page 9

 18   Ibid at page 10

 19   Exhibit R2 at [18]

 20   Exhibit R1 at [26]

 21   Ibid at [27]-[28]

 22   Exhibit R3, Witness Statement of Ms Holly Pink, dated 30 October at [7]-[13]

 23   Exhibit A10, Witness Statement of Mr Diljit Singh, dated 10 October 2020 at [11]-[14]

 24   Ibid at [15], Exhibit R3 at [15]

 25   Exhibit A10 at [10]

 26   Exhibit R1 at [33]

 27   Exhibit R3 at [16]

 28   Exhibit R1 at [34]-[35]

 29   Exhibit R2 at [20]

 30   Ibid, Attachment AB1

 31   Ibid at [21]-[23]

 32   Exhibit A1 at page 20

 33   Exhibit R2 at [24]

 34   Exhibit A1 at page 21

 35   Exhibit R2 at [25]-[27]

 36   Exhibit A4, Letter dated 6 October 2020 from Mr Mohammad Hossain

 37   Exhibit A5, Letter dated 6 October 2020 from Dr Neil Acharekar

 38   Exhibit A6, Letter dated 15 October 2020 from Dr Angie Aquilina.

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

40 Ibid at paragraph [79]-[80]

41 Ibid at paragraph [99]

 42   Exhibit R2, Attachment AB1