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

Abraham (Abram) Garcia
v
Launceston City Mission Inc, Peter Freak, Bernadette Jones, Luke Cowen
(AB2021/448)

Application for an FWC order to stop bullying – not satisfied applicant was bullied at work –reasonable management action – application dismissed.

[1] On 11 August 2021, Mr Abraham (Abram) Garcia made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (Cth) (the Act). Mr Garcia alleges that he has been bullied at work during his employment with Launceston City Mission Inc (City Mission). Mr Garcia is a casual worker and volunteer at City Mission.

[2] Mr Garcia alleges that he has been subjected to bullying at work by Mr Peter Freak, Ms Bernadette Jones and Mr Luke Cowen, each of whom is employed by City Mission. In his Form F72 application, Mr Garcia also alleges that “Jeremy Warehouse Manager” was involved in bullying. It is apparent that Jeremy is Mr Jeremy Van Engen. Mr Garcia also refers in his F72 to unspecified “other employees at the Youngtown site” that he alleges were involved in bullying. It is not clear who those employees are. However, for reasons that will become apparent, I am not satisfied on the evidence that Mr Garcia has been bullied at work by any employees, named or unnamed.

The proceedings

[3] An attempt was made to conciliate a resolution to this matter to resolve the issues between the parties. However, this proved to be unsuccessful, and directions were then issued on 8 November 2021 for the parties to file materials and for the matter to be arbitrated. The directions also scheduled the matter for hearing before me on 13 and 14 December 2021 on Microsoft Teams. Mr Garcia represented himself at the hearing and Ms Abbey George was granted permission to appear for City Mission and the persons named. 1

[4] City Mission has raised a jurisdictional objection to the application. That is, that the actions of City Mission and the persons named can be characterised as reasonable management action undertaken in a reasonable manner. 2 No other jurisdictional objections are raised.

Background

[5] To a significant extent, the factual background to this matter is common ground between the parties. There are some factual contests which require resolution and are dealt with later in the decision, most notably the contest as to the behaviour of Mr Garcia with respect to Ms Alana Budgen.

[6] Mr Garcia was first engaged by City Mission on 15 May 2018 as a volunteer at the Youngtown site, primarily in the Warehouse and the Garden Centre. Mr Garcia would regularly assist the Warehouse team with deliveries each Wednesday and assist in the Garden Centre on the weekends.

[7] On 21 February 2019, Mr Garcia received an offer for casual employment from City Mission, which he accepted. The position title was “Casual Moving with the Mission Transport Worker”. 3 The casual role was in support of Mission on the Move (MOTM), a service offered by City Mission to assist vulnerable people in moving residence. In this role, Mr Garcia assisted Drivers as an offsider. City Mission would be contacted by a customer requesting assistance, and the Driver would go to the customer’s house and provide them with a quote. If accepted by the customer, the Driver would then contact Mr Garcia to come and assist them in moving the customer’s belongings. It is Mr Garcia’s hope to work as a Driver for City Mission in the future.4

[8] From the commencement of his casual employment in February 2019 through to early 2020, Mr Garcia was generally engaged as a casual employee for 30 hours per fortnight. He also continued as a volunteer throughout this period. Mr Garcia was awarded a number of certificates in recognition of his volunteering and his personal qualities in this period.

[9] In March 2020, as a result of the coronavirus (COVID-19) pandemic, Mr Garcia was placed on JobKeeper. On or around one month later, Mr Garcia returned to work as a casual employee for City Mission, assisting with maintenance work as there were no moving jobs being carried out at the time. Mr Garcia was generally engaged for 15 hours per week in this capacity, which remained the status quo until the end of September 2020. For a short time thereafter, Mr Garcia gradually recommenced his normal duties as MOTM services recommenced.

Mr Garcia’s original complaint

[10] On 1 December 2020, Mr Garcia sent a complaint by email to City Mission’s People and Culture Manager, Ms Bernadette Jones. 5 The substance of the complaint that Mr Garcia made is as follows.

[11] On 26 November 2020, Mr Garcia had a conversation with a Driver, Mr Phillip Chick. Mr Garcia asked about upcoming MOTM jobs on Thursday and Friday. Mr Chick told Mr Garcia that he would be the offsider for a MOTM job on Thursday, but that another newly employed offsider would do the Friday shift.

[12] Mr Garcia became concerned as he had been the offsider on every MOTM job, other than when he was unwell, since the commencement of his casual employment on 21 February 2019. Shortly after being told that he would not get the Friday shift by Mr Chick, Mr Garcia raised his concern with the Warehouse Manager, Mr Jeremy Van Engen. Mr Van Engen told Mr Garcia he was not reliable and raised a number of issues, including:

•  that Mr Garcia started his breaks early, that he was reluctant to do jobs, and that he was sleeping on the job;

•  that Mr Garcia was leaving work as soon as he got back from his Wednesday deliveries, and was not willing to do additional work; and

•  that Mr Garcia was using his depression “as an excuse”. 6

[13] Mr Garcia stated that he was not informed of any of these issues before he was taken off shifts. Furthermore, that Mr Van Engen said that he did not raise the issues with him previously because he did not want to upset Mr Garcia. Mr Garcia also claims that he was on a volunteer shift on Wednesday and always completed his assigned work before leaving, and he was not obliged to do additional work. He also noted that Mr Van Engen had told him that he was required to do 15 hours of voluntary work per week, which was incorrect. Mr Garcia described this conversation with Mr Van Engen as bullying behaviour, and a starting point for the other alleged bullying behaviour. I deal in more detail with the evidence about what occurred during the discussion between Mr Van Engen and Mr Garcia on 26 November 2020 later in the decision.

[14] On 27 November 2020, Mr Garcia met with Mr Luke Cowen, the Operations Manager, Recycling and Logistics, and raised the same concerns. Mr Cowen was apparently aware of these issues. Mr Garcia noted that it was unclear when Mr Van Engen informed Mr Cowen of the issues and he had concerns about their friendship. Mr Garcia considered that Mr Cowen “already made his mind up” concerning his future at City Mission and that he said these things because he “isn’t happy with me and would rather see me go”. 7

[15] Subsequent to these events and the email sent on 1 December 2020, Ms Jones held a meeting with Mr Garcia on 8 December 2020. During the meeting, the pair documented a list of acceptable outcomes to the issues raised in the complaint. The outcomes are set out in an email sent by Ms Jones to Mr Garcia which is referred to later in the decision. 8

[16] On 9 December 2020, Mr Garcia emailed Ms Jones raising issues in relation to the complaint and the meeting and reiterating his belief that the new casual employee was hired to replace him, not to cover his shifts when he was unwell. 9 Ms Jones responded later that day referring to the outcomes documented in the meeting on 8 December 2020, specifically, that Mr Van Engen was to undergo performance management training and training for managing people with a mental illness.10

[17] On 15 December 2020 Ms Jones received a text message from Mr Garcia stating he was “not doing too well” and did not want to speak to a stranger. Ms Jones called Mr Garcia immediately. During that conversation Mr Garcia accepts that he said words to the effect of the way he was feeling made him understand why people bring a gun to work. 11 Ms Jones said that sounded like a threat. Mr Garcia then assured Ms Jones that he was not making a threat, and that this was just a feeling that he would not act on.12

[18] On 17 December 2020, a second meeting was held to discuss the complaint and outcomes with Mr Garcia, Ms Jones and Mr Cowen present.

[19] On 18 December 2020, Mr Garcia sent an email to Ms Jones. 13 In summary, Mr Garcia stated that:

•  he was not happy with what had transpired at the meeting the previous day;

•  other staff had changed their demeanour around him;

•  the situation placed him under a large amount of stress, and caused him mental health issues, for which he wanted an apology;

•  he had had suicidal thoughts;

•  Mr Van Engen was not stressed during the conversation which was the subject of the complaint of 1 December 2021, but rather was already angry with Mr Garcia;

•  Mr Van Engen’s assumptions about the situation were not justified;

•  Mr Van Engen cannot deal with people as his position requires;

•  Mr Van Engen was not truly sorry for his actions; and

•  City Mission was not taking the complaint seriously.

[20] On 23 December 2020 Mr Garcia and Mr Hallam, the Chaplain, had a meeting. The notes from that meeting are, in summary, as follows:

•  Mr Garcia wanted a 24/7 support person available to him, which Mr Hallam said was not possible, but suggested alternative support contacts for outside business hours;

•  Mr Garcia asked Mr Hallam to “take notes for his proof down the track when he needs it”, to which Mr Hallam expressed concerns;

•  Mr Hallam recorded that Mr Garcia said “City Mission saved his life”, that he had very little outside the organisation and that he feels losing shifts and not getting a paid position is a betrayal by City Mission;

•  Mr Garcia referred to the culture of gossip, backstabbing and politics in the workplace, and that management was a part of this culture;

•  Mr Garcia felt that he was being bullied so that he would want to leave;

•  Mr Garcia said that he wanted City Mission to take him seriously;

•  Mr Garcia talked a lot about Mr Van Engen, saying among other things that Mr Van Engen was the reason he had lost his casual position;

•  Mr Garcia said that while the meeting on 17 December 2020 had “got the ball rolling”, he was not able to discuss what he wanted to discuss and felt that Mr Van Engen, while acknowledging the problem, had not dealt with it;

•  Mr Garcia noted that he had been experiencing personal issues because of the situation, and felt abandoned by City Mission;

•  Mr Garcia raised concerns about the faith of City Mission’s employees (not Christian); and

•  Mr Hallam noted that Mr Garcia appeared to be holding onto the fact that he was promised a paid role. 14

[21] On 5 January 2021, Ms Jones sent a letter concerning the outcome of the meeting of 17 December 2020 to Mr Garcia (note, the letter is dated 5 December 2021, but it is not in dispute the correct date was 5 January 2021). 15 Ms Jones set out the outcomes in that letter as follows:

“•  I apologised on behalf of the organisation that you had not been effectively managed. This was, in some part, due to the fact that in the system Luke Cowen was assigned as your manager, but in reality your day-to-day duties needed to be managed by Jeremy Van Engen.

•  This meant that the responsibility for your management was effectively falling between the gaps, and leading to a lack of opportunity for you to receive and give appropriate feedback on your performance.

•  It was agreed that Jeremy would undertake training in Performance Management, as this was already scheduled to take place in the new year.

•  It was agreed that all management in Social Enterprise would benefit from training in working with people with a mental illness and we would work towards making that a requirement.

•  Luke offered to make offers of alternative roles where appropriate to make up for the structure changes that were happening due to the expansion of the transport service of the Mission. This expansion would also potentially result in a change to position descriptions and role requirements, which would be advised in due time.

•  Jeremy apologised for his treatment of you and the way he spoke to you.

•  Jeremy agreed not to make assumptions in the future regarding working hours.

•  It was agreed that, due to the ineffective management of your performance, that no issues that had been previously raised would be included in any performance review, effectively giving you a clean slate regarding your performance.

•  It was agreed that any issues moving forward would be dealt with as they arose, and in an appropriate manner.”

[22] On 6 January 2021, Mr Garcia called Ms Jones and said that he did not believe the matter to be resolved and he wanted to sit in a room with Mr Van Engen and deal with the issues. Ms Jones refused the request as from her perspective the “sit-down” and apology had already occurred. Ms Jones was concerned that Mr Garcia simply wanted a further opportunity to berate Mr Van Engen. 16 The pair discussed what further outcomes were sought and whether Mr Garcia needed assistance to deal with the situation.

Warning for threatened violence

[23] On 8 January 2021, Mr Cowen told Mr Garcia that he was to take some time away from work because he was threatening violence. It appears that on 23 December 2020, Mr Garcia said to another employee “they are lucky that I don't give people knuckle sandwich”. It is unclear whether Mr Garcia made this comment in reference to any particular person. 17

[24] A meeting was held on 8 February 2021 with Mr Garcia, Ms Jones and City Mission’s General Manager Social Enterprise, Mr Peter Freak. The group discussed the potential for Mr Garcia returning to work. It appears that City Mission was of the view that Mr Garcia would return as a volunteer and Mr Garcia thought that he would return to work “just like before”, that is, at Youngtown as a volunteer. 18

[25] A warning letter dated 25 January 2021 was given to Mr Garcia at the meeting on 8 February 2021 which states the following:

“We refer to the recent complaint against you alleging inappropriate conduct on 23 December 2020; namely that you used violent [and] threatening language regarding coworkers. On 15 December, during a conversation with Bernadette Jones (Manager People and Culture) you also made threatening comments against your colleagues. While you have insisted that you would not follow through with these threats and we understand they have come from a place of frustration, verbal threats against the safety our workers are very serious. Conduct of this nature is in breach of the following policies: Professional Ethics and Conduct, Duty of Care, and Communication and, therefore, conduct of this nature is unsatisfactory.

You are also advised that the abovementioned policies and any corresponding procedures will need to be reviewed by you within the next three weeks. Further breaches will result in further disciplinary action, which may include termination of your employment.

To reiterate, our expectation is that you abide by City Mission policies and procedures at all times. As a worker with City Mission you are required to behave in a responsible and professional manner at all times.

You are encouraged to seek assistance from our Chaplaincy service or our Employee Assistance Provider, Converge, at this time if you require it. If you require any further support in this matter beyond that outlined above, please do not hesitate to contact management. I will follow up with you in three weeks. If you wish to respond to this warning letter, please do so by replying in writing.” 19

Plans to return to volunteering

[26] On 25 February 2021, Mr Garcia contacted Mr Cowen to discuss his planned return to volunteering. Mr Cowen told Mr Garcia he could not return to Youngtown due to changes in the volunteering requirements and offered volunteering positions at two other City Mission locations.

[27] On 25 February 2021, Mr Garcia sent an email to Mr Freak after this call suggesting that there was a need for a volunteer at Youngtown, that he wanted to be placed at Youngtown and that he had the right to be placed at Youngtown because of the length of his tenure. Mr Freak responded by email on 26 February 2021, addressing the various points in Mr Garcia’s email. Mr Freak referred to dynamic business needs and stated that allocation of volunteers was not on a “who was there first” basis. Mr Freak also highlighted the “fresh start” available to Mr Garcia should he commence volunteering at another location. He also warned against going to members of Mr Cowen’s team, or others, to seek further information. 20

[28] On 27 February 2021, Mr Garcia sent a text message to Ms Jones stating that he believed, on the basis of the meeting on 8 February 2021, that he would return as a volunteer at Youngtown and that the threat issue had been dealt with. 21

[29] On 1 March 2021, Mr Cowen sent Mr Garcia a text message asking about whether he had considered volunteering at the other locations. Mr Garcia responded saying that he would return to Youngtown but that he could help out at the other sites if needed. 22 Mr Cowen responded by saying that there was not a suitable position available at the Youngtown Warehouse. Mr Garcia then sent a lengthy email to Mr Freak which is summarised below:

•  he was being required to reapply as a volunteer and make a new volunteering agreement;

•  he was going to return to his previous volunteering role in the Warehouse and the Garden Centre;

•  Mr Freak had agreed to him returning to Youngtown at the meeting;

•  he would return to Youngtown to volunteer that week and that Mr Freak should tell Mr Cowen to “not try and stop [him]”;

•  Mr Freak should inform the staff of his return; and

•  he had been bullied and mistreated. 23

[30] In a reply email sent later that day, Mr Freak informed Mr Garcia that he was required to follow management directions and that if he showed up at Youngtown he would be asked to leave. 24

Police incident at Youngtown

[31] On 2 March 2021, Mr Garcia went to the head office to see Stephen Brown, CEO of City Mission. Mr Brown was not present, but Mr Garcia saw Mr Freak. A conversation occurred, and Mr Garcia indicated to Mr Freak that he was going to Youngtown. Mr Freak advised management at Youngtown of the situation and sent an exclusion notice barring Mr Garcia from entering City Mission’s places of business to Mr Van Engen.

[32] Mr Garcia then arrived at Youngtown and walked into the office of Mr Van Engen. The exchange between Mr Van Engen and Mr Garcia is dealt with in more detail later in the decision. Mr Van Engen attempted to give Mr Garcia the exclusion notice. 25 Around this time, another staff member contacted the police who came and escorted Mr Garcia from the premises.

Termination of casual employment

[33] The materials before the Commission refer to a chain of correspondence with Mr Brown and an exchange of emails with Mr Garcia and Mr Hallam between 10 March 2021 and 24 March 2021. The Commission only has some of this correspondence, and there is some difference in the respective accounts put forward by the parties. However, there are three emails of importance which provide sufficient detail of what occurred.

[34] On 10 March 2021, Mr Garcia emailed the office of City Mission, addressing the email to Mr Brown. He set out a complaint about Mr Freak and Mr Cowen in relation to the police incident on 2 March 2021 and asked to talk to Mr Brown about bullying. This appears to be the second email Mr Garcia sent in relation to the incident. Additionally, in the email Mr Garcia:

•  requested a copy of a letter which Mr Van Engen had tried to give him at the incident (likely the exclusion notice);

•  stated he was still an active employee of City Mission; and

•  stated he understood he was apparently banned from all of City Mission’s sites and requested something in writing to give effect to the ban.  26

[35] After several other emails, on 24 March 2021, Mr Brown emailed Mr Garcia with the subject line “Termination of Casual Employment” which states as follows:

“Thank you for your recent correspondence regarding your position as a casual worker and volunteer with City Mission.

I did send you the Exclusion Notice that Chris Browning attempted to give you on 2^nd March, earlier in the week.

Following discussions with the Managers involved, I can now inform you that your position as a casual employee has been terminated. To be involved with City Mission any worker must commit to follow lawful and reasonable management direction. As you have recently refused to do that on a number of occasions, your role will cease immediately.

I do wish you well in the future. Up until recent issues during the last six months, you have been a valuable member of the team and we have appreciated your work. I note that you have mentioned on a number of occasions that City Mission was a lifesaver for you. I sincerely hope you find other ways to find a sense of fulfilment and continue to be involved in your co community. I suggest Volunteering Tasmania might be a good way to explore other opportunities.” 27

[36] On 26 March 2021 Mr Brown sent the following to Mr Garcia:

“On 25th Feb 2021 you were advised by the Operations Manager Recycling and Logistics, Luke Cowen, that there was no longer a volunteer position available at the Warehouse or Mission Garden and Salvage. You were offered positions at Uptipity or George Town which you refused. He then instructed you not to go to Youngtown. Your response was: "Sorry, but it's not your decision who volunteers and where". As an Operations Manager, Luke has the authority to decide where volunteers are required and placed.

On 2nd March 2021 the General Manager Social Enterprise, Peter Freak, also advised you that you were not to go to Youngtown.

You disregarded both senior managers and made your way to Youngtown on that day. You were then asked to leave the premises by Luke Cowen and you refused. He advised that the police would remove you if you did not leave. An attempt was made to issue you with an exclusion notice at this time and you refused to take it.

You were then removed from premises by the police.

This disregard for reasonable and lawful management instruction is unacceptable from a volunteer or paid worker and therefore, inconsistent with the continuation of your volunteering arrangement and employment contract.

I consider this the end of the matter and you are requested to have no further contact with any City Mission employee.” 28

Unfair dismissal application

[37] On 30 March 2021, Mr Garcia filed an application with the Commission claiming he was unfairly dismissed. A settlement was reached in the matter after a mediation conducted by Commissioner McKinnon. The terms of the settlement, included relevantly that:

•  City Mission was to arrange a confidential 1-hour meeting between Mr Garcia, Ms Jones and a more senior member of the management team so that Mr Garcia can explain the impact of the events leading to dismissal and their effect on him and give him the opportunity to heal;

•  City Mission would immediately reinstate Mr Garcia in his casual role and, if things progressed well over the remainder of 2021, reinstate him as a volunteer initially at a location other than Youngtown but with the aim of returning to volunteering at Youngtown by 1 July 2022 at the latest;

•  City Mission would implement a “fairness in rostering” system to ensure that Mr Garcia has at least the same opportunity as others performing the same work to be offered, and to accept, shifts of work;

•  Mr Garcia would acknowledge and accept a final written warning. The terms of the final warning are such that any further unsatisfactory conduct would result in the termination of his employment;

•  Mr Garcia would provide a medical certificate advising he was fit for work; and

•  Mr Garcia would direct queries about his employment in the first instance to Mr Cowen and Mr Freak.

[38] The meeting agreed to as part of the terms of settlement was held on 6 July 2021 with Mr Garcia, a support person, Mr Brown and Ms Jones in attendance. Mr Garcia provided a medical certificate advising he was fit for work from 1 July 2021. The meeting notes record, relevantly, as follows:

•  Mr Garcia could go out to a different site to work where he gets along with another employee;

•  Mr Garcia commented that gossip could lead to the issues arising again, and that he feels volunteers are just being used;

•  Mr Garcia commented that City Mission did not know how to deal with bullying; and

•  Mr Garcia hoped his goal to replace a full-time Driver was not ruined. 29

Attempts to recommence work at a new location

[39] On 8 July 2021, Mr Freak called Mr Garcia to discuss return to work plans. It appears that Mr Freak told Mr Garcia he required some paperwork for a police check and that Mr Garcia would need to be picked up from his house for MOTM shifts. Mr Garcia took issue with the latter and sent an email to Ms Jones saying that he had the right to come to work and present at Youngtown for shifts and did not want to be picked up. Ms Jones replied stating that Mr Freak was the Operations Manager and was therefore the person who made that decision. She also noted that Mr Garcia could consider requesting a different, neutral location to be picked up from. 30

[40] Mr Garcia responded to Ms Jones via email on 9 July 2021. He said that the condition to be picked up from his house was not in the contract and refused the condition moving forward. 31 Mr Garcia also sought the advice of the Commission on the issue, by way of an email to Chambers of Commissioner McKinnon. The Commissioner’s Chambers informed Mr Garcia that the Commission could not offer legal advice and provided contact details of people who may be able to assist him.32

[41] On 12 July 2021, Ms Jones sought clarification as to whether Mr Garcia was saying he will refuse shifts when they are offered to him. On 13 July 2021, Mr Garcia replied saying he said what he needed to say and would not discuss the matter any further. He also requested paperwork alluded to by Mr Freak during their phone call, and that he expected MOTM shifts. 33

[42] On 19 July 2021, City Missions legal representative, Ms Abbey George, sent a letter to Mr Garcia. The contents of that letter are as follows:

“We confirm that Launceston City Mission has sought our assistance following your

recent correspondence.

We confirm as follows:

•  Your matter with the Fair Work Commission has been discontinued. This means that it has been finalised and the Commission is no longer involved.

•  You remain a casual employee, accordingly future shifts will be dictated by operational needs. So, although the Employer will continue to implement a “fairness in rostering” system to ensure that you have the same opportunity as other Employees, this does not mean that you will be guaranteed shifts. Shifts will be offered when they become available.

•  In order to assist with the facilitation of you performing shifts, the Employer is directing you to attend the Mission Shop at Prospect located at 142 Westbury Road Prospect [(Prospect)], which is closer to your home than the Youngtown location.

•  The direction provided is a reasonable one and also is one which is covered by the Contract of employment signed by you dated 21 February 2019 which states at Clause 2 You may at any time be required to work at a different location nominated by the Employer on either a temporary or permanent basis.

•  We also note that the Contract denotes your acceptance to abide by policies and procedures of the Employer which was also again encapsulated in the Terms of Settlement and the Warning signed by you.

You will be contacted when a shift is available at which time you are directed to attend the workplace as outlined above.

If you do not, then this will be taken as refusal of working the shift and it will be allocated to another Employee. It will also be taken as refusal to follow a reasonable direction and a formal process may result.” 34

[43] Mr Garcia responded to Ms George by email the same day, saying “no thank you”. 35 Mr Garcia emailed Mr Freak his police check on 23 July 2021. In that email he apologised to Mr Freak for making him feel disrespected during the incident on 2 March 2021.36

[44] Mr Freak replied on 26 July 2021, stating that Mr Garcia was able to commence work before the police check was returned, and asked Mr Garcia whether, given his response to Ms George, he intended to work at Prospect. In his reply, Mr Garcia said that his “no thank you” was in relation to Ms George’s request to read the letter set out above. He was of the view that, unless he was before a Court or the Commission, he was not required by law to read the letter. He further expressed some confusion as to whether the offer to work shifts at Prospect was on top of his MOTM shifts, or whether he was being asked to go to Prospect to be picked up for his MOTM shifts. Mr Freak re-sent the letter of Ms George’s and confirmed that Mr Garcia was being offered an MOTM shift at Prospect, and that nothing had changed but the location of the work.   

[45] Mr Garcia replied later that day, affirming his view that he was not required by law to read the letter, and that he expected to be texted in advance for an MOTM shift soon as required by the contract.  37 Mr Freak responded, setting out clause 2 of the contract which stipulates that Mr Garcia may at any time be required to work at a different location nominated by the Employer. He also wrote:

“You have now been instructed three times that there has been a change to the location of your work. When you have agreed to attend work as a Moving with the Mission attendant at Prospect Mission Shop we will be in a position to offer you shifts. As per my last two emails, will you follow our reasonable management instruction and attend work at Prospect when you are advised that a shift is available?” 38

[46] Mr Garcia responded on 27 July 2021, as follows

“The part of the casual contract that you are referring to is saying that City Mission can have me do shifts at other City Mission locations.

But I won't be doing a shift at the prospect site, so it's not applicable in regards to your demand that I must go there to be picked up for a moving with the mission shift sorry.” 39

[47] On 28 July 2021 Mr Freak emailed Mr Garcia stating that Mr Garcia’s interpretation of the casual contract was incorrect, and that he would offer Mr Garcia shifts once he had read the letter, understood the shift was at a new location and agreed to follow the reasonable and lawful direction. 40 Mr Garcia sent the following email in reply:

“You're joking aren't you?

If you think that the wording of that casual contract means being picked up at prospect to be taken somewhere else, then I think you should take the rest of the day off as you are clearly not feeling well.

What it means is that CM can require Scott (works at garden center on weekends) to go to prospect for a shift(s). How you can interpreate it any other way is quite frankly laughable.

I am 2000% sure that any judge will agree with me on my and every one I've spoken to agrees, (pastors, doctors, business owners, Psychologist) interpretations.

I have discussed with you this issue even though I had already said end of subject. I did this in the hope that reason would prevail.

Which leads me to a question.

At what point does city mission actually follow it's values and mission statements?

From the beginning of this mess with Jeremy's gross incompetence till this very day, city mission managment ( yourself, luke, Bernadette, Stephen Brown) have all shown yourselves to operate in complete opposite of the organization's core beliefs and values.

You should all be ashamed.

So,

Your new condition of a shift is not in the signed contract so it is void and voilates the terms of the fwc contract.

You will notice that the FWC contract includes times and places (work, volunteering and allowing access to all sites) within it so a condition like this new prospect condition being picked up from another location until a certain time would also have been required in the contract.

You can't make an agreement and then change it in anyway. At least, not legally.

So, this means you either give me a shift or city mission will be breaking the contract.

I am confident that should we go again before the fair work commission or a court, city mission will be found in the wrong.

So either give me a shift in the next 4 weeks (btw, the fair work commission contract said immediate return to work, nearly 2 months ago) or you will have broken the contract.

********************

You have absolutely no legal grounds to not allow me to attend Youngtown for a moving with the mission shift. ( you should read that again).

********************

Also, for your information, contracts and policies are not laws, they must remain in the within the laws of Australia or they are not legal.

As for your repeated bringing up Abbey, you clearly don't have an understanding of what is and isn't allowed/legally in Australia law.

I repeat, you have no legal grounds, to base this latest (not agreed on) condition, or to restrict access to the Youngtown site to fulfil my role.

In fact, I have a contract that says I can do my role and what would be commonly understood and accepted to do so.

4 weeks.

Thank you.

Abram.” 41

[48] On 29 July 2021, Mr Garcia sent another email to Mr Brown, Mr Freak, Ms Jones and City Mission’s office email. The subject line of the email is “Letter Of Notice Regarding Abram Garcia’s Position At City Mission & The Fair Work Commission Contract”. In summary, the email stated that:

•  he is required by the terms of settlement to return to work immediately;

•  the terms of settlement say nothing about working at Prospect;

•  if City Mission did not give him a shift by 26 August 2021, he would consider the employment relationship terminated; and

•  he should be allowed to do what other offsiders do (like come into work and have a coffee). 42

[49] On 30 July, Mr Garcia sent two more emails to the same group of people. 43 The first is as follows:

“Oh sorry, I did not require a response from City Mission to the email I sent City Mission yesterday morning (29th of July 2021).

All that City Mission has to now do is ethier give me a shift (in line with the contract) or break the contract by not giving me a shift.

The emails that I received yesterday afternoon have not been read and will only be needed/read when before the fair work commission or a court, or.......

I have been given legal advice that my email (sent yesterday morning) IS legal and if at the end of the time frame I have not received a shift (inline with the conditions within the contract and under regular work place laws), that I am legally allowed to claim for unfair dismissal.

I just want to add that City Mission should be so ashamed of itself, as it clearly does not follow it's own mission statements and values.

The problem is that people support city mission with the belief that City Mission is s Christian organization. The way I have been treated by staff (management and co-workers) has me,

100…00% [the percentage in the email has been shortened for the purposes of this decision]

that city mission is lying to the community ( your sign & website says one thing and city mission does the complete opposite.

A bikey gang is more Christian then City Mission!!!!

I have much more I could say buy I'll leave that for the Fair Work Commission, a court, and if need be....... the media.

Have a terrible day, you evil people.”

[50] The second is as follows:

“I want to apologise as I assumed that the emails that I received yesterday afternoon were by City Mission staff.

While I meant every word I said in my last email, I am sorry that I assumed a reply was sent from City Mission (with the same bullcrap) that I have had to deal with in recent times. I've had ENOUGH.

I was a loyal hard working volunteer and worker that struggles with depression, I did not gossip, lie, or treat anyone in a bad way. What really ticks me off that dispite this, city mission staff ( management included) have treated me like ( apologies for a bad word ) shit.

So I apologise for my assumption which lead to me sending my last email ( 30 or so minutes ago ), but not for what I said. You (City Mission) in treating me so poorly have made me feel this way.

Please don't bother with replies. Ethier give me a shift (text and email please with date and time) or break the contract.

Thank you.

Abram (CM you made me want to kill myself) Garcia.”

[51] City Mission interpreted the second email as a threat that Mr Garcia would engage in self-harm. Mr Freak called the police and advised them of the situation, including Mr Garcia’s mental health and his previous statements about bringing a gun to work.

[52] Shortly after the second email was sent, Ms Jones sent an email to Mr Garcia in response to his email of 29 July 2021. She reiterated the position set out by Mr Freak as set out in his email on 28 July 2021.

[53] On the night of 30 July 2021, Mr Garcia sent Ms Jones two text messages. Mr Garcia claims the police attended his house and told Mr Garcia he had threatened City Mission staff with a gun. The text messages informed Ms Jones of Mr Garcia’s intention to commence proceedings for defamation against City Mission and Ms Jones specifically. 44

[54] Mr Garcia lodged his application for an order to stop bullying on 11 August 2021. City Mission was notified of the application for an order to stop bullying on 13 August 2021.

The Submissions and Evidence

[55] The background set out above is important context for the key elements Mr Garcia’s claims that he has been bullied at work. While allegations of bullying are made against various individuals, it is apparent that the central complaint made by Mr Garcia is that City Mission has determined that he is not to return to Youngtown, and that he considers this a breach of the settlement agreement brokered by the Commission to settle the unfair dismissal application. However, that central complaint is clearly connected to the history set out above and the related claims that the persons named have engaged in bullying behaviour.

[56] Before dealing with the evidence in detail, it is prudent to make some general observations about this case and in particular Mr Garcia. The claims that Mr Garcia makes against various individuals are broad ranging and his submissions and evidence were often difficult to follow. He suffers from depression and has clearly struggled with his mental illness for many years. Mr Fleming, Mr Garcia’s psychologist, provided a letter in support of Mr Garcia which confirmed that Mr Garcia suffers from depression. 45 Efforts were made during the proceedings to accommodate the challenges Mr Garcia faced in that regard. In dealing with this matter, I have taken into account Mr Garcia’s personal circumstances, in particular, the state of his mental health. I have endeavoured to provide him with appropriate help in the presentation of his case. Where necessary, this included adjournments, extensions of time to file and mention hearings to explain the process to Mr Garcia.

Mr Garcia’s evidence and submissions as to the alleged bullying behaviour

[57] Having considered the extensive written materials and oral evidence of Mr Garcia, what follows is a summary of what I understand to be the key aspects of the application made by Mr Garcia.

[58] In Mr Garcia’s F72 application, he states that the primary reason for making the application is that City Mission has made threats which are not true and “also they have added a condition to our recently made and signed FWC contract. I feel that their new condition treats me differently to all other staff, and is the continuing of being bullied/mistreated by City Mission.”

[59] As to the first point, Mr Garcia accepts that he expressed suicidal thoughts, 46 made a reference to having an understanding as to why some people bring a gun to work,47 and made threats to give unspecified people a knuckle sandwich.48 Notwithstanding, Mr Garcia does not consider that one of these threats, (though it is not clear which one) is “legally” a threat. Further, Mr Garcia claims that Ms Jones had accepted his explanation for making one of the threats. He is also concerned that when the police attended his home to deal with his threat of self-harm, that they made reference to his earlier claims about bringing a gun to work.49

[60] As to the second point, the “added condition” to the FWC contract that Mr Garcia refers to is the requirement to work out of a site other than Youngtown. It is apparent that the requirement by City Mission to not work at Youngtown, either as volunteer or casual worker, is at the centre of the claims of bullying made by Mr Garcia. To the extent that the persons named in the application have directed that Mr Garcia not to work at the Youngtown site, this is alleged bullying behaviour on the part of those persons. However, there are also specific allegations of bullying against the persons named as follows.

[61] In respect to Ms Jones, Mr Garcia asserts that she accepted the reference to bringing a gun to work was not a threat yet the fact that the threat was made continues to be referred to. 50 Having considered the evidence, there is nothing to suggest the conduct of Ms Jones in responding to the reference Mr Garcia made to bringing a gun to work was bullying behaviour.

[62] Mr Garcia claims the demand from Mr Freak that Mr Garcia read a letter that the representative of City Mission had sent to him was a form of bullying. Requesting that Mr Garcia read that letter is clearly not bullying behaviour.

[63] I understand Mr Garcia to assert that the actions of Mr Cowen in stopping him from attending the Youngtown site on 2 March 2020 was bullying behaviour. 51 Mr Garcia also alleges that Mr Cowen told him he cannot go to Youngtown as other people did not want him there.52

[64] I note that when Mr Garcia first made the application, there was a significant focus on Mr Cowen as a source of bullying behaviour. I note that on the evidence before me, there is insufficient evidence to satisfy me that Mr Cowen was engaging in bullying behaviour. At worst, Mr Cowen treated Mr Garcia as a worker rather than volunteer. Objectively, this is not bullying behaviour. However, even if that finding is not correct, Mr Cowen no longer works for City Mission and for that reason there is not a risk of further bullying from Mr Cowen.

[65] There are also claims that Mr Van Engen engaged in bullying behaviour. In November 2020 there was an exchange between Mr Van Engen and Mr Garcia. It seems common ground that the exchange was started by Mr Garcia querying why he had not been given a particular shift and/or why another person had been engaged to do the moving work. Mr Van Engen then told Mr Garcia why he had not been given the shift. 53

[66] Mr Van Engen also told Mr Garcia the service was expanding and more staff would be hired, 54 and told Mr Garcia that as a casual he could not be guaranteed shifts and additional staff would be employed.55 Mr Garcia is clearly upset with the claimed “assumptions” made about him by Mr Van Engen.56 Mr Garcia disputed that what occurred was an argument.57 However Mr Van Engen was clear that it “did heat up on that day”.58

[67] As mentioned in the background above, a meeting was convened to resolve the complaint of Mr Garcia that arose from the meeting. It is apparent that Mr Garcia remains upset about the outcome of the meeting that was held with Ms Jones, Mr Van Engen and Mr Cowen on 17 December 2020. The outcomes of that meeting are recorded in the letter sent to Mr Garcia by Ms Jones dated 5 December 2021 and are set out at paragraph [21] above. As noted earlier, there is an error and the letter should be dated 5 January 2021. 59 The outcomes include apologies from Mr Van Engen and Ms Jones and a range of actions to take place.

[68] When asked by me during the hearing if Mr Van Engen had apologised, Mr Garcia was initially evasive and somewhat obsessed as to whether Mr Van Engen was stressed or not at the time of the argument between them. Ultimately, Mr Garcia conceded that Mr Van Engen did apologise, 60 and part of that apology related to not raising performance concerns with Mr Garcia earlier.61

[69] Mr Garcia also called some witnesses to give evidence. One of these was Ms Vanessa Mitchell who gave evidence which is summarised as follows:

•  She has known Mr Garcia for approximately 6 years. She regarded him highly when she met him but has watched him become a “man that is insecure and has low self-esteem”.

•  This process has taken a toll on Mr Garcia’s mental health and wellbeing, and he has required ongoing support.

•  Mr Garcia considered City Mission to be his support network, and he has lost his “purpose in life”.

•  She has attended meetings with Mr Garcia and City Mission where outcomes and agreements were reached, only to find that additional conditions were added. This has worsened Mr Garcia’s mental health.

•  City Mission have let Mr Garcia down by not considering his needs. Mr Garcia “needs to be dealt with on an individual level, not one process is appropriate for all employees”.

•  Mr Garcia realises he has not conducted himself appropriately on all occasions, but his mental health and feelings that he is being ignored or misunderstood have “clouded his judgement”. 62

[70] Notably, Ms Mitchell made a point of saying that she had spent some time going through City Mission’s statements with the Mr Garcia, 63 this evidence contradicted Mr Garcia’s claim that he had not looked at the witness statement of Mr Van Engen.64

[71] Another witness for Mr Garcia, Mr King, confirmed that there was discussion amongst some staff as to whether Mr Garcia would turn up on certain days as it was the case that Mr Garcia would not turn up on certain days that he should have been there. 65

City Mission’s Witnesses

Evidence of Jeremy Van Engen

[72] Mr Van Engen is engaged by City Mission as the Warehouse Manager in the Youngtown Warehouse. He also manages the Moving with the Mission staff. Mr Garcia is one of Mr Van Engen’s casual staff for Moving with the Mission, and reports directly to Mr Van Engen. In his witness statement, Mr Van Engen outlines the following timeline of events:

26 November 2020

•  Mr Garcia confronted Mr Van Engen in the workplace seeking more paid work in order to reach the 30 hours required by Centrelink.

•  The “confrontation” caught him by surprise, and he indicated to Mr Garcia that he did not want to discuss the matter at that time. Mr Garcia persisted, and the conversation escalated into an argument about Mr Garcia’s reliability.

17 December 2020

•  Mr Van Engen met with Ms Jones and Mr Garcia to discuss the 26 November 2020 “altercation”.

•  Mr Van Engen apologised for the way he spoke to Mr Garcia. While the meeting made Mr Van Engen feel “very uncomfortable”, he considered the matter closed. Mr Garcia accepts that Van Engen did apologise. 66

2 March 2021

•  Mr Van Engen was advised by Mr Freak that if Mr Garcia comes on site, that he should issue him with an exclusion notice, and that if he refuses to leave, he should call the police.

•  Mr Garcia came on site and into Mr Van Engen’s office, stood in the doorway and blocked his exit, making him feel trapped and very anxious. Mr Garcia denies that he blocked Mr Van Engen from the exit, but accepts he may have “felt trapped, uncomfortable, whatever”. 67

•  Mr Garcia berated and judged Mr Van Engen and questioned his faith.

•  Mr Van Engen attempted to give Mr Garcia the exclusion notice, but he refused to take it. Someone else contacted the police and Mr Garcia was escorted by the police from the premises.

[73] Mr Van Engen states that he is frustrated by Mr Garcia’s behaviour towards him, his attack on his value system, and refusal to listen or take direction from him. He does not trust Mr Garcia to treat him respectfully or interact with other staff on the site appropriately.

Evidence of Phillip Chick

[74] Mr Chick is engaged by City Mission as a part-time Moving with the Mission Transport Worker. Mr Garcia works with Mr Chick as one of his casual offsiders. In his witness statement, Mr Chick states that he has worked closely alongside Mr Garcia and is aware of his mental struggles. Mr Chick also makes the following statements about Mr Garcia:

•  That Mr Garcia’s mood changed every day, and the unpredictability worries Mr Chick.

•  That Mr Garcia sometimes gave advice to customers which was wrong and contradicted what Mr Chick had told customers.

•  That Mr Garcia would fall asleep in the truck on longer trips. Mr Chick spoke to Mr Garcia about the requirement to be awake in case he has a medical episode at the wheel. Mr Garcia denied falling asleep however then conceded he may have “rested his eyes” and then ultimately that he may have fallen asleep. 68

•  Mr Garcia spoke to Mr Chick about “smoking pot and going looking for magic mushrooms”. When this was put to Mr Garcia, he was extremely evasive and said these were personal conversations. 69

•  Mr Chick encouraged Mr Garcia to attend homes with him to learn quoting, however he refused to do this and insisted he be dropped back off at the Youngtown Warehouse. Mr Chick changed his routine to drop Mr Garcia off and arranged to do quotes the next day.

•  Mr Garcia would only do the tasks that he wanted to do.

Evidence of Alana Budgen

[75] Ms Budgen is engaged by City Mission as Relief Manager and Expeditor and most often works in Youngtown. Ms Budgen had contact with Mr Garcia at the Newnham shop where he was working as a volunteer on the truck that came from the Youngtown Warehouse. In her witness statement, Ms Budgen gave the following evidence:

•  Twice when working at Newnham, Mr Garcia asked Ms Budgen if he could take a photo of her, which she declined. Mr Garcia said, “not a sexy one, one I can look at on my deathbed”. Ms Budgen declined. Her evidence in the hearing was that she first felt uncomfortable when Mr Garcia asked for her photo. However, as she felt compassionate toward Mr Garcia, she did not complain about his conduct at that time. 70 Mr Garcia conceded that he had asked her if he could take her photo on a number of occasions.71

•  Mr Garcia had expressed romantic feelings towards Ms Budgen on a number of occasions and had spoken to others about this. After asking for Ms Budgen’s phone number, Ms Budgen declined and indicated that she was in a relationship.

•  Ms Budgen is aware of Mr Garcia’s suicidal thoughts. During the hearing she described her assessment of him as a “troubled man of sorts”. 72

•  That Mr Garcia told Ms Budgen he would look for magic mushrooms and encourage another staff member from Mission Garden and Salvage to use them, and that he had used them. The use of magic mushrooms concerned Ms Budgen due to Mr Garcia’s mental health issues.

•  That Mr Garcia sometimes did not follow directions and that Ms Budgen was concerned about his unpredictability.

[76] Ms Budgen was at the Youngtown site on 2 March 2021, unpacking a pallet in the Youngtown Warehouse. Ms Budgen gave the following evidence in relation to the incident which occurred on that day:

•  That Mr Chris Browning (Operations Manager Retail) informed Ms Budgen that Mr Garcia was on site and that the police had been called to remove him. Ms Budgen had not been told why. She was not concerned at this point because she knew that he was in the office with Mr Van Engen.

•  That Ms Budgen heard Mr Garcia calling her name and was then immediately concerned as she did not know why the police were coming on site. Mr Garcia then said something about her moving back to Adelaide, but it did not make much sense. Ms Budgen was anxious and not “really taking it in”.

•  Mr Garcia approached Ms Budgen and she put her hands out to keep a distance between them. Mr Garcia continued to approach, and Ms Budgen started backing away keeping her hands stretched out in front of her. Ms Budgen backed up against some gear in the building. Mr Garcia disputes this aspect of Ms Budgen’s evidence strongly, calling it a lie. 73

•  That Mr Garcia was not acting aggressively, but Ms Budgen was worried that she might be in danger, and his behaviour made her feel extremely uncomfortable.

•  At that point, Mr Cowen arrived and told Mr Garcia that he needed to leave, and that the police had been called. Ms Budgen then left and went to the Electrical Department where she felt safer.

•  That during this encounter, Ms Budgen felt threatened and uncomfortable, and that should Mr Garcia come back to Youngtown, she would fear for her safety. She said during the hearing she realised how unpredictable he was on that day. 74

[77] Ms Budgen also gave the following evidence during the hearing in an exchange with Mr Garcia:

“I felt uncomfortable throughout this whole two years. Abram.  I had made, you know, excuses in my mind for your actions back then and I've had a lot of time to think about it and I have been uncomfortable for a lot of that time, but I thought that I was doing what was best to not bringing it to light and not making a fuss out of this.  But if I could go back to the first question you asked me in relation to the photos, I would have stopped it there and then and gone to management.” 75

[78] Mr Garcia accepts that he asked Ms Budgen for her photo a couple of times, 76 but denies he expressed romantic feelings for her.77 He accepts it is “possible” he asked her for her phone number.78 As to the conversations about magic mushrooms, again Mr Garcia was evasive but conceded it was “possible”. He disputes that Ms Budgen backed away from him in the manner that she describes. Of significant concern, Mr Garcia’s made references to Ms Budgen as an attractive lady who therefore has to accept that she has to deal with people who are “mesmerised” by her.79 In effect he blames Ms Budgen for not raising concerns about the issues.80 To be clear, as a victim of the unwanted behaviour from Mr Garcia, it is not Ms Budgen’s fault that Mr Garcia has engaged in that behaviour.

Evidence of Bernadette Jones

[79] Ms Jones is engaged by City Mission as Manager People and Culture. Ms Jones has had many interactions with Mr Garcia while he was a volunteer, and during his employment. Ms Jones states that up until December 2020, Mr Garcia had always been pleasant and respectful and spoke highly of City Mission. Furthermore, that she has always treated Mr Garcia in a professional and supportive manner. In her witness statement, Ms Jones also gave the following evidence.

Addressing the 26 November 2020 event

•  That Ms Jones helped Mr Garcia address his complaint about the treatment by Mr Van Engen on 26 November 2020.

•  That Ms Jones organised and helped mediate the meeting that took place on 17 December 2021 (error, should be 2020) with Mr Van Engen and Mr Cowen. During this meeting, they addressed Mr Garcia’s concerns and outcomes that he sought in their meeting on 8 December 2020. Mr Garcia also received an apology on behalf of the organisation for the confusion around the reporting structure, and from Mr Van Engen for the way that he spoke to him on 26 December 2020. City Mission considered the matter closed. During the hearing, Ms Jones confirmed that given the actions that took place she considered the matter was closed but that Mr Garcia was the only person in the room since then that has refused to “move on”. 81

•  Mr Garcia wanted an opportunity to work through the issues with Mr Van Engen after the conclusion of the matter, but Ms Jones considered this counterproductive as an apology had been offered. Ms Jones also held concerns that Mr Garcia would berate Mr Van Engen.

•  During a telephone call on 6 January 2021, Ms Jones offered Mr Garcia access to the Employee Assistance Program to help him work through his feelings regarding the incident with Mr Van Engen on 26 December 2020.

15 December 2020 (the witness statement states 2021, which is an obvious error)

•  Mr Garcia sent Ms Jones a text message at 8:09 pm stating that he was not doing too well and did not want to speak to a stranger. She then immediately called him as she was concerned for his welfare. Mr Garcia expressed suicidal thoughts and indicated that the way he was feeling made him understand why people “bring a gun to work”.

•  That Ms Jones recommended Mr Garcia speak with their Employee Assistance Program, but he reiterated that he did not want to speak to a stranger. She also recommended that he speak to his doctor as she was concerned for his mental health.

•  Mr Garcia assured Ms Jones that he would not hurt himself. She told Mr Garcia that what he said came across as a threat. Mr Garcia then assured her that he was not making a threat and did not own a gun.

•  Ms Jones told him that his language was “very inflammatory and concerning”, and he said that it was just an expression of frustration.

Employee concerns

•  When following up with staff after the 2 March 2021 incident, Ms Jones discovered that Mr Garcia had spoken to several staff members about looking for and taking “magic mushrooms”.

•  One staff member indicated that they feared making a formal statement regarding Mr Garcia, and that he regularly spoke to them about taking magic mushrooms and encouraged them to try them. They also spoke of stress that they experienced due to speaking to Mr Garcia about his depression and suicidal ideation.

•  Mr Garcia had also spoken to Ms Jones and a number of staff about his suicidal thoughts, and that staff have expressed that they feel ill-quipped to deal with Mr Garcia when he makes threats of self-harm.

•  Staff also informed Ms Jones of Mr Garcia’s infatuation and inappropriate behaviour towards Ms Budgen.

Evidence of Peter Freak

[80] Mr Freak is engaged by City Mission as General Manager Social Enterprise. He has been employed by City Mission since 10 September 2018. In his witness statement, Mr Freak submits that:

•  In email conversation between 25 February 2021 and 1 March 2021 between Mr Freak and Mr Garcia regarding a return to volunteering, Mr Garcia was directed not to return to the Youngtown site due to the needs of the business and concerns about other workers on site.

•  On 2 March 2021, Mr Garcia attended the offices at Frederick Street and requested to see the CEO. The CEO was not present, and Mr Garcia instead saw Mr Freak. Mr Garcia indicated that he was going to record the conversation but did not gain his permission to do so.

•  Mr Garcia said words to the effect that he was advising Mr Freak that he will be returning to volunteer at the Youngtown site, and was informing him of this, not seeking permission.

•  That Mr Freak instructed Mr Garcia not to attend the Youngtown premises, and that if he did, he would be asked to leave. Mr Garcia then left Frederick Street. Mr Freak then telephoned to advise Mr Cowen and Mr Van Engen, who are both based in Youngtown, of these events.

•  Later on 2 March 2021 Mr Freak received a phone call informing him that Mr Garcia was on site at Youngtown, and that he confirmed that he should be asked to leave. Further, Mr Freak sent an exclusion notice to be given to Mr Garcia and instructed that should Mr Garcia refuse to leave the police should be called to remove him. He was later informed by Mr Cowen that he initially refused to leave but left after some time after numerous requests.

•  That Mr Freak recommended to the CEO that Mr Garcia’s volunteering position and casual employment be terminated because of his refusal to follow direction.

[81] Mr Freak also states that between 23 July 2021 and 30 July 2021 a series of emails were exchanged between Mr Garcia and himself in an attempt to arrange a return to work. Mr Garcia refused to follow direction to read the correspondence, refused working arrangements, and disparaged City Mission and its staff.

City Mission’s submissions

[82] City Mission submits that the conduct alleged to have occurred towards Mr Garcia is not bullying behaviour and was reasonable management action taken in a reasonable way.

[83] City Mission submits that subsequent to the parties reaching a settlement in the previous unfair dismissal proceedings, several employees approached Ms Jones raising concerns they had about Mr Garcia. As a result of these concerns, City Mission made the “reasonable decision that it would be best for everyone if Mr Garcia was to operate out of the Prospect Site so that everyone at Youngtown continued to feel safe.”

[84] City Mission submits that the decision to move Mr Garcia to the Prospect Site was also influenced by the following factors:

•  The effect on Mr Garcia would be minimal as he is a casual employee. Furthermore, he is on the worksite for a minimal period before completing his work in a truck off site.

•  Mr Garcia has shown a history of not following the reasonable direction of Youngtown management, leading to concerns that this would continue.

•  Mr Garcia has previously been escorted off the Youngtown premises by police after he failed to follow reasonable direction.

•  Mr Garcia’s failure to follow reasonable direction causes the vulnerable people at City Mission to feel unsafe and is also a risk to Workplace Health and Safety (WHS).

•  Mr Garcia has not acknowledged or accepted responsibility for his past behaviour, warnings given to him and his removal from City Mission by police.

•  Mr Garcia has not provided any reasons for his refusal to enter or work at the Prospect site, nor has he considered the suggestion that he be relocated to a different site (such as the Frederick Street site). Mr Garcia also refused the initial proposal that he be picked up from his home.

[85] City Mission submits that it proposed a solution which would allow Mr Garcia to work whilst ensuring that City Mission meets their WHS obligations as far as reasonably practicable.

[86] City Mission submits that the decision to relocate Mr Garcia to another site is reasonable management action taken in a reasonable way because:

•  Mr Garcia’s contract of employment allows for his relocation and in this instance the location is closer to Mr Garcia’s home. Furthermore, relocation is not unusual practice and does not constitute bullying.

•  Mr Garcia’s complaint was not made as a bullying complaint in compliance with City Mission’s policies and procedures, however, it was addressed and resolved.

•  Mr Garcia has received a warning about his behaviour through the proper process.

•  Mr Garcia has a history of not following reasonable directions, and the addressing of disciplinary issues and his inappropriate behaviour is also part of reasonable management action.

•  Concerns were raised by employees of City Mission regarding the behaviour of Mr Garcia. City Mission notes that the concerns raised by the other employees had not been raised at the time of the conference which led to the settlement in the previous unfair dismissal proceedings.

•  Mr Garcia states that City Mission has threatened Mr Garcia not to return to the workplace, and this is not true.

•  Mr Garcia does not appear to understand that people on site are uncomfortable with him due to his refusal to follow management instructions and his behaviour which resulted in his removal from the Youngtown site by the police.

•  City Mission notes that Mr Garcia was offered the employee assistance program on several occasions and has also accessed in-house chaplaincy.

The law to be applied

[87] A worker who reasonably believes that he or she has been bullied at work may apply to the Commission for an order to stop bullying. Section 789FC of the Act provides:

“789FC Application for an FWC order to stop bullying or sexual harassment

(1) A worker who reasonably believes that he or she has been bullied or sexually harassed 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.”

[88] Section 789FD of the Act sets out when a worker has been bullied at work, as below:

“789FD When is a worker bullied at work or sexually harassed 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.

(2A) A worker is sexually harassed at work if, while the worker is at work in a constitutionally-covered business, one or more individuals sexually harasses the worker.

(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.”

[89] 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.”

[90] The Constitution, in effect, defines “constitutional corporations” as follows:

“Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth.” 82

[91] The circumstances in which the Commission may make orders to stop bullying are set out in s.789FF of the Act, as produced below:

“789FF FWC may make orders to stop bullying or sexual harassment

(1) If:

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

(b) either or both of the following apply:

(i) the FWC is satisfied that the worker has been bullied at work by an individual or a group of individuals, and the FWC is satisfied that there is a risk that the worker will continue to be bullied at work by the individual or group;

(ii) the FWC is satisfied that the worker has been sexually harassed at work by one or more individuals, and the FWC is satisfied that there is a risk that the worker will continue to be sexually harassed at work by the individual or individuals;

then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to:

(c) if subparagraph (b)(i) applies—prevent the worker from being bullied at work by the individual or group; or

(d) if subparagraph (b)(ii) applies—prevent the worker from being sexually harassed at work by the individual or individuals; or

(e) if subparagraphs (b)(i) and (ii) apply:

(i) prevent the worker from being bullied at work by the individual or group; and

(ii) prevent the worker from being sexually harassed at work by the individual or individuals.

(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

Factual determinations and findings of witness credit

[92] To a significant extent, the key facts are not in contest. However, there are some factual disputes that need to be resolved, particularly the disputed evidence of Ms Bugden.

[93] The evidence of Mr Garcia has to be seen through the prism of his struggle with depression and I have taken that into consideration as a factor when considering the behaviour of Mr Garcia and the behaviours of those he has been working with at City Mission.

[94] My observations of Mr Garcia during the hearing were that he was evasive on matters that he preferred not to be traversed, such as the allegations from a number of witnesses that he was often discussing consuming magic mushrooms with colleagues and the allegation, ultimately conceded, that he at times fell asleep at work. There is also the revelation that Mr Garcia had been assisted by Ms Mitchell to go through the witness statements, contradicting his claim that he had not seen the witness statement of Mr Van Engen. 83 While I think that Mr Garcia was generally honest with his evidence, he was very evasive on matters where he thought that findings adverse to his interests may be made. During the proceedings Mr Garcia became upset and emotional on a number of occasions. On one particular occasion, he lost his temper and slammed his fist on the desk and screamed loudly into the microphone on the computer. His anger on that occasion was squarely directed at Ms Jones.84 The behaviour itself is of significant concern. However, of even greater concern is the lack of insight of Mr Garcia into his behaviour.

[95] Ms Bugden was a cogent and forthright witness who was very clear and measured with her evidence throughout the proceedings. Ms Jones was also a forthright witness who, while showing an enormous amount of compassion towards Mr Garcia, was very clear in her recollections of events. Mr Van Engen presented as an honest and forthright witness. Mr Chick was also clear and cogent with his evidence. To the extent there is a contest on the evidence, I prefer the evidence of Ms Bugden, Ms Jones, and Mr Van Engen and Mr Chick over that of Mr Garcia. Central to the consideration in this case is the claim by Ms Jones that the decision to not return Mr Garcia to Youngtown is one made based on the WHS concerns of many staff at Youngtown and that she agrees with the decision. I am satisfied that there is clear evidence that staff at Youngtown have legitimate concerns about working with Mr Garcia, some of which are outlined below.

[96] With respect to Mr Van Engen, I prefer his evidence that on the day Mr Garcia attended Youngtown, after having been told not to, Mr Garcia stood in the doorway and blocked his exit, making him feel trapped and very anxious. I am also satisfied that Mr Garcia has also berated Mr Van Engen. In this context, it is understandable Mr Van Engen is frustrated with Mr Garcia’s past aggressive behaviour, and refusal to listen and take directions from him. He feels “uncomfortable and anxious” with the thought of having Mr Garcia on site at Youngtown again.

[97] I am satisfied Mr Chick is worried about Mr Garcia’s mood swings and “not knowing what state he is from day to day.” I have observed Mr Garcia’s mood swings first-hand during the hearing.

[98] Ms Budgen has been worried that she might be in danger due to Mr Garcia’s behaviour which also made her feel “extremely uncomfortable”. She has also felt threatened during encounters with Mr Garcia before. She indicated that if Mr Garcia was to come back to Youngtown she would fear for her safety, and that Mr Garcia’s unpredictability would “put everyone in harms way, not just physically but mentally”. Having regard to the evidence, it is entirely understandable that Ms Bugden feels this way.

[99] The evidence is clear that these staff, who work at Youngtown, would prefer not to work with Mr Garcia again for the reasons given. Their preference in this regard is entirely understandable. However, that does not mean that the decision by City Mission to have Mr Garcia attend at Prospect is not bullying behaviour. While it is clear that it is management action that is responsive to the concerns of the employees the question is whether it is reasonable management action taken in a reasonable manner. It is to that question which I will now turn.

Is the alleged behaviour reasonable management action carried out in a reasonable manner?

[100] In Ms SB, 85 Commissioner Hampton provides a framework for considering this aspect of the anti-bullying provision:

“[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.” 86[footnotes omitted]

[101] Mr Garcia is clear he would not have signed the settlement agreement to resolve the unfair dismissal claim if he knew he would not return to Youngtown. It is difficult to understand his confusion on this point. Firstly, the agreement was reached after the events that ultimately led to his dismissal, with his removal by police from Youngtown after he was expressly told not to go there and ignored the direction. His attendance at Youngtown was clearly a live issue before his dismissal.

[102] Secondly, the agreement makes clear that as long as things go well in terms of the relationship between Mr Garcia and City Mission over the remainder of 2021, Mr Garcia could return to volunteering at a location other than Youngtown (emphasis added). There is an aim to have Mr Garcia return to Youngtown by July 2022 at the latest.

[103] As to his work as a casual employee, Mr Garcia has agreed to resume work as a casual employee and accept shifts for which he is ready, willing and able to work. City Mission has been offering Mr Garcia shifts at Prospect, not at Youngtown and it is clearly this aspect that aggrieves Mr Garcia, and he sees this as an additional condition to the settlement agreement. It is not. City Mission is entitled to offer him work at Prospect and not at Youngtown. It is not in contest that Prospect is closer to the home of Mr Garcia. There is no evidence it is unreasonable for him to work there. It is consistent with his contract of employment which provides that:

“Your usual place of employment will initially be 351 Hobart Road, Youngtown, as well as any other location required to fulfil the duties of your position. You may at any time be required to work at a different location nominated by the Employer on either a temporary or permanent basis.” 87

[104] Further, while the requirement to not work shifts at Youngtown is not expressly provided for in the terms of settlement, having regard to the history of this matter, combined with the express requirement for a staged return to volunteering at Youngtown subject to a satisfactory relationship, it should hardly be a surprise to Mr Garcia that there is a requirement for him to work elsewhere.

[105] Having regard to all of the circumstances in this matter, I am satisfied that City Mission deciding to direct Mr Garcia to work at Prospect, a location closer to his home, rather than Youngtown in order to deal with the legitimate concerns of the Youngtown employees, was reasonable management action carried out in a reasonable manner. It is consistent with his contract of employment and the settlement agreed to as part of his unfair dismissal application. The location is closer rather than farther from Mr Garcia’s home. Further, it is a reasonable response by City Mission to the genuine concerns of Youngtown employees about working with Mr Garcia.

[106] Of course, there may be other management actions that could have been taken to deal with the concerns of the Youngtown employees which were more reasonable, though it is not apparent what these might be. In any event, that is not the test. The test is whether the management action actually taken is reasonable. I am satisfied that the action taken by City Mission, viewed objectively against the extensive background to this matter, to direct Mr Garcia to work at Prospect is reasonable management action carried out in a reasonable manner as contemplated in s.789FD(2) of the Act. Therefore it follows that s.789FD(1) of the Act does not apply to the action taken and therefore Mr Garcia has not been bullied at work.

Are there other behaviours identified that constituted bullying behaviour?

[107] Aside from the action to relocate Mr Garcia to Prospect rather than Youngtown, it is necessary to consider the other alleged bullying behaviours of the persons named in the application.

[108] In Amie Mac v Bank of Queensland Limited and Others, 88 the Commission indicated that some of the features which might be expected to be found in a course of repeated unreasonable behaviour constituting bullying at work were:

“... 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.”

[109] Earlier in the decision I determined that I am not satisfied, on the evidence before me, that the specific behaviours claimed to be bullying behaviours of persons named could be considered bullying behaviour such that Mr Garcia has been bullied at work.

[110] The only other behaviour that is relevant and that has not been dealt with entirely is that of Mr Van Engen during November 2021 where it is common ground that he told Mr Garcia he was not reliable and raised a number of issues, including:

•  that Mr Garcia started his breaks early, that he was reluctant to do jobs, and that he was sleeping on the job;

•  that Mr Garcia was leaving work as soon as he got back from his Wednesday deliveries, and was not willing to do additional work; and

•  that Mr Garcia was using his depression “as an excuse”. 89

[111] In my view, the conduct of Mr Van Engen on the relevant date falls short of bullying behaviour. It was certainly not wise to use that occasion to unload a number of hitherto unmentioned concerns on to Mr Garcia. However, it is common ground that a number of the concerns he raised had a basis in fact, such as the sleeping on the job. However, he should not have made the comment about Mr Garcia using his depression as an excuse. Overall, objectively viewed, what happened that day was not bullying behaviour. However, even if it was, it is not bullying behaviour as defined by the Act as there is no evidence of repeated behaviour consistent with s.789FD(1) of the Act.

[112] To the extent that Mr Garcia considers any other person at City Mission has engaged in bullying behaviour, I am not satisfied that is the case for the reasons set out above. There is simply insufficient evidence to support such a proposition. In fact, the evidence shows an organisation that, particularly through the agency of Ms Jones, has turned itself inside out to accommodate the needs of Mr Garcia, with an understanding of the importance to him of his engagement with City Mission.

Conclusion

[113] Having considered the evidence in this matter, I am satisfied that the actions of City Mission are reasonable management actions undertaken in a reasonable manner. Further I am not satisfied that there is evidence of any other bullying behaviour. As I am not satisfied that Mr Garcia has been bullied at work, the application for a bullying order is dismissed.

COMMISSIONER

Appearances:

Mr Garcia, Applicant.
A George for City Mission, Ms Jones, Mr Cowen and Mr Freak.

Hearing details:

2021
Melbourne (by Microsoft Teams):
December 13 and 14.

Printed by authority of the Commonwealth Government Printer

<PR737939>

 1   Transcript at PN6.

 2   Digital Court Book (DCB), page 27.

 3   DCB, page 56.

 4   Form F72 at Q7.1.

 5   DCB, page 113.

 6   DCB, page 75 – 76.

 7   DCB, page 77.

 8   I DCB, page bid at 117.

 9   DCB, page 124 -125.

 10   DCB, page 124.

 11   Transcript at PN285.

 12   DCB, page 34.

 13   DCB, page 122.

 14   DCB, page 428.

 15   DCB, page 127.

 16   DCB, page 400.

 17   DCB, pages 230 and 391.

 18   DCB, page 31.

 19   DCB, page 42.

 20   DCB, page 446 - 447.

 21   DCB, page 96.

 22   DCB, page 105 - 107.

 23   DCB, page 168.

 24   DCB, page 168.

 25   DCB, page 35.

 26   DCB, page 194 - 195.

 27   DCB, page 45.

 28   DCB, page 46.

 29   DCB, page 431.

 30   DCB, page 444 - 445.

 31   DCB, page 444.

 32   DCB, page 156.

 33   DCB, page 443.

 34   DCB, page 328 - 329.

 35   DCB, page 112.

 36   DCB, page 173.

 37   DCB, page 175 - 176.

 38   DCB, page 178.

 39   DCB, page 182.

 40   DCB, page 188.

 41   DCB, page 187 - 188.

 42   DCB, page 454.

 43   DCB, page 454.

 44   DCB, page 455.

 45   DCB, page 84.

 46   PN284.

 47   PN285.

 48   PN132 and PN137.

 49   DCB, page 13 -14.

 50   PN187.

 51   PN110.

 52   PN192.

 53   PN91.

 54   PN636.

 55   PN640 and PN646.

 56   PN99, PN102, PN104 and PN115.

 57   PN664.

 58   DCB, page 396.

 59   DCB, page 35.

 60   PN256 - PN257.

 61   PN628.

 62   DCB, page 120.

 63   PN347.

 64   PN250.

 65   PN384.

 66   PN256.

 67   PN259.

 68   PN263.

 69   PN226.

 70   PN874.

 71   PN271.

 72   PN867.

 73   PN277.

 74   PN877.

 75   PN902.

 76   PN269.

 77   PN271.

 78   PN273.

 79   PN1232.

 80   PN1235.

 81   PN962.

 82   Australian Constitution s.51(xx).

 83   PN250.

 84   PN1089.

 85   [2014] FWC 2104.

 86   Ms SB [2014] FWC 2104, [46] - [53].

 87   DCB, page 56.

 88   [2015] FWC 774 (Hatcher VP, 13 February 2015), [99].

 89   DCB, page 75 - 76.