DECISION

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

Donovan Christopher (J.n.r) Scott
v
Vita People Pty Ltd, Josie Williams
(AB2021/312)

Allegations for an FWC order to stop bullying

[1] On 3 June 2021, Mr Donovan Christopher Jnr Scott (Mr Scott) filed an application pursuant to s.789C of the Fair Work Act 2009 (the Act) to the Fair Work Commission (the Commission) for an order to stop bullying. Mr Scott’s employer is Vita People Pty Ltd (Vita People). The application sought an order to stop bullying against Ms Josie Williams, Business Manager at the North Queensland Telstra Business Technology Centre, and Mr Matt Parks, Regional Manager Brisbane.

[2] Vita People is part of the Vita Group, providing services to Telstra, including operating Telstra stores.

[3] After listing the matter for a telephone conference on 1 July 2021, I issued Directions for filing of material in relation to the application and determined to hear the matter at a hearing. On 23 July 2021, I issued Amended Directions for the filing of material and listed the matter for Hearing on 1 September 2021. A further amended Notice of Listing was issued on 2 September 2021, noting the matter was to proceed to hearing on 16 September 2021.

[4] Mr Scott seeks a remedy in response to the alleged workplace bullying pursuant to Part 6-4B of the Act. It is not in dispute that Mr Scott is an eligible worker to bring a claim of this kind under this jurisdiction.

[5] On 25 June 2021, I was informed that Mr Parks no longer worked at Vita People, and accordingly, he was no longer a person named in the proceedings.

Relevant legislation

[6] 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 relevant 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.”

[7] 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.”

[8] 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.”

Hearing

[9] The matter was heard by way of video Hearing via Microsoft Teams on 16 September 2021. Mr Scott appeared on his own behalf, giving evidence in support of his application. Vita People and Ms Williams were represented by Ms Bec Dowell, HR Business Partner who also gave evidence. Mr Todd Cope, Regional General Manager of North and South East Queensland gave evidence. Ms Williams gave evidence.

Summary of submissions and evidence of Mr Scott

[10] Mr Scott gave evidence by way of a written witness statement, reply statement and oral evidence in these proceedings. He commenced with Vita People on 4 April 2018 and is currently engaged as a Territory Account Manager. His responsibility primarily includes managing a portfolio of over 1000 business customers.

[11] Mr Scott has sought for the Commission to acknowledge the alleged bullying that has occurred at his workplace and make recommendations to implement policy amendments to protect himself, and other employees, for now and the future.

[12] Mr Scott stated that prior to issues from April 2021, he has never previously had any disciplinary issues “to this magnitude”. He described himself as very passionate, committing to every activity he engages in.

[13] Mr Scott advised that the targets for work have always been focused on three verticals: serving Vita Group, Telstra and their customers. These are measured by different metrics:

•  Vita Group - mainly focused on gross profit, customer service, securing cash flow and ensuring repeat business;

•  Telstra - supporting the various political/business relationships, secured over the years through various business development ventures also adding to their catalogue of services that are provided to their small business customers. These services are in relation to cybersecurity, marketing, unified communications, and more.

•  Serving customers - the way they bring revenue in via sale of solutions but also securing repeat business, is by having a high level of customer service indicated by their Net Promoter Score (NPS) results.

[14] As a Territory Account Manager, Mr Scott stated he is on a retainer of $65,000 per annum, with a commission structure which he explained. He stated that he consistently achieved requirements when they were attainable before the change in management and the introduction of COVID-19. When there was some recovery from COVID-19, he stated that new targets were introduced, which was a normal feature, but he considered that they were not attainable. He stated that nobody in the business achieved the target, and nobody received the ‘PM2’ payment. He raised concerns at the time but was given the same ‘spiel’ about Telstra requirements and the contract with them. He was told that Vita People had no control over it. Mr Scott considered that Telstra does not set the targets internally and therefore the remuneration structure is different.

[15] The PM2 targets were set as follows, which Mr Scott considered to be unattainable:

[16] Mr Scott’s evidence is that in July 2021 there were admissions made that the 100 classification call target was not suitable. He considered that it should be something that is done in day-to-day dealings with customers.

[17] Mr Scott considered that making about five calls per day over the month, which could take up to 40 minutes per call, depending on how talkative the customer is, is not productive. He considered that it could take up to three hours in his workday and may not lead to sales. He didn’t wish to make the calls in the way he was directed to because he considered that it:

•  Took time away from customers he had already built a relationship with;

•  Took time away from current projects in play; and

•  The fact that his previous system of emailing a customer had worked where he received engagement from those that wanted to and did not from those that did not.

[18] Mr Scott advised that in the week before 29 April 2021, he had a conversation with Ms Williams about the GES unassigned list where he had advised her that he would complete it during the last week of the month of April. An email from Ms Williams made it clear that he had 92 calls to make, whereas his colleagues had 47, 25, 22 and 8 calls to make, yet there was only four days of the month to meet the target. Mr Scott stated that he wanted to invest time in meeting the other targets because it was easier to go through and classify accounts in the last few days. In the third quarter, Mr Scott explained that he had met the GES unassigned target using his methodology.

[19] When Mr Scott arrived at work on 29 April 2021, Ms Williams raised this issue with him. Mr Scott informed Ms Williams that he would spend the last day of the month, 30 April 2021 doing the GES unassigned lists. According to Mr Scott, Ms Williams replied, “This was not good enough”, and asked how Mr Scott was going to call all those customers in one day? Mr Scott replied that he was not going to call them but merely classify at his discretion and as he develops a relationship with them, he would amend it should that classification change. Ms Williams advised that it was a requirement from Telstra that he call all the customers and spend time on the phone with them before classifying them.

[20] Mr Scott asked to view his employment contract, mentioning that he may need to have a conversation with Human Resources (HR) to understand his obligations under the contract he had signed. Shortly thereafter on 29 April 2021, Mr Scott received an email from Ms Bec McDowall, Human Resources Business Partner advising that Ms Williams had contacted her advising that Mr Scott wished to speak to her and provided a copy of his employment contract and Vita People – Employer Greenfields Agreement 2009 (the Greenfields Agreement). Upon review of both the employment contract and the Greenfields Agreement, Mr Scott believed that neither document mentioned a requirement to complete 100 GES unassigned calls.

[21] Mr Scott spoke to Ms McDowall later this day, informing her that he had no issues with the target, or with management’s directions to do so, however he wished to challenge the expected process. Mr Scott believed the process could be done in a way that ensures team members’ current customer relationships were not negatively impacted, that team members would retain enough time to hit the targets while being commissionable, and where the Telstra requirements would still be met. Mr Scott was of the view that Ms McDowall was prepared for this call as she only reiterated Mr Scott’s obligations to the contract. Mr Scott then asked for an escalation process which might facilitate a change to process. Ms McDowall responded that there was none and that the managers would have to approve it.

[22] After the phone call, Ms Williams entered the room. Mr Scott reiterated his position and his conversation with Ms McDowall. Ms Williams presented Mr Scott with a Performance Improvement Plan (PIP). She told him that due to his lack of performance, he was now to enter a PIP to improve his performance.

[23] Mr Scott said he reviewed the PIP and instantly rejected it as he believed some of the issues raised were fabricated and was a misrepresentation of himself and current performance. Mr Scott further challenged the methodology of implementing the PIP, noting there was no prior conversation, nor was it collaborative as he had no idea about it. Mr Scott requested a formal meeting where some of the issues on the PIP could be raised.

[24] Shortly thereafter, Ms Williams sent an email to Mr Scott reiterating what was discussed during the meeting, attaching a copy of the PIP, and advising that a formal meeting was not necessary:

“As discussed this morning here is the performance improvement that I have signed and is now in place for the following weeks till 31st May.

This performance improvement plan is set to support and help you with your work activities, if there is anything you feel needs to be added or that you would like more support with, please let me know so we can discuss.

As this is a performance improvement plan, there is no need for a formal meeting as this is an improvement plan for myself/management/vita to help and support you through these improvement activities set out with the date for review.

Let me know if you have any questions/concerns or would like to further discuss anything.”

[25] That morning, Mr Scott sent an email to Ms Williams, Ms McDowall, Mr Parks and Mr Rhys Wawryck, Territory General Manager. The email, addressed to Ms Williams, advised as follows:

“As discussed I acknowledge that you have presented a Performance improvement plan and just wanted to reiterate my request to have meeting to unpack this:

- My understanding of PIP’s is that there needs to be 3 months of consecutive underperformance

- This has been sprung and there hasn’t really been prior notice or warning for performance improvement and I was not consulted around this…”

[26] Mr Scott further stated that he had asked Ms McDowall, via email, about the PIP. Ms McDowall responded to Mr Scott’s email above at 11:37am on the same day:

“From a policy and procedural perspective I can confirm there is no defined period of prior underperformance required for a plan to be implemented, only that a concern exists and improvement is required.

The goal of a performance plan is to improve performance to the required standard. As such a performance plan is a remedial activity, not a disciplinary action, and therefore does not require formal notice to be introduced. It is an activity that can be discussed in a normal one on one with your leader and you can contribute further to the plan if you have any further ideas for different or additional improvement or support activities.

You can speak further with both Josie and Matt on additional contributions you would like to make to the plan, Josie may then update the plan accordingly.”

[27] Mr Scott is of the view that Ms McDowall’s statement in respect to there being no defined period of prior underperformance required is contradictory of the PIP fact sheet, policy and procedure. He further believed that according to the PIP fact sheet, the PIP is an escalation in the performance improvement journey. He submitted that an escalation cannot be remedial, as posed by Ms McDowall in her email.

[28] In light of Ms McDowall’s email correspondence, Mr Scott emailed Ms Williams that day, further challenging the PIP. Ms Williams responded by email stating that everything was in place and that it cannot be changed. In the same email, Ms Williams stipulated that she was more than happy to discuss further during the one-on-one meeting the next day. Mr Scott recalled emailing Ms Williams and Mr Park advising that he had not signed the PIP because he believed the PIP was not done fairly and equitably, and to sign it would mean he agreed with their assessment.

[29] On the same afternoon, 29 April 2021, Mr Scott replied to Ms McDowall’s earlier email that day, advising he understood a bit more about the PIP. However, Mr Scott advised that at the time he felt the advice from Ms McDowall was wrong, which was confirmed later. Mr Scott told Ms McDowall that he would brush up on internal processes but also asked about the consequences of not being able to fulfil the requirements.

[30] Mr Scott advised he had concerns about the PIP and did not agree to sign it. He raised those concerns in an email to Ms Williams on 30 April 2021. In this email, Mr Scott advised that the fact she had told Mr Scott he was not to listen to educational material while provisioning or processing contracts felt more like a punishment rather than a plan for improvement. This was on the basis that he says that everyone else in the business listens to music or podcasts. Mr Scott also reiterated in the email that while processing, he cannot be on the phone speaking to customers and that everyone else in the business engaged in this activity. Mr Scott noted he did not sign the PIP because he was still seeking an amendment to the PIP and was advised by Ms Williams that the PIP did not need to be signed by Mr Scott for it to be implemented.

[31] Mr Scott recalled attending a meeting with Ms Williams on 30 April 2021. During this meeting, Mr Scott challenged the PIP presented to him on 29 April 2021 and noted that the only amendment made by Ms Williams was to fix a syntax error on the document. Mr Scott raised his concerns in an email on the same date, addressed to Ms Williams. Ms Williams then advised that everything on the PIP was correct and that it was in place until 31 May 2021 when Mr Scott’s GES unassigned demonstrated improvement. Mr Scott noted that it was Ms McDowall who advised that past performance did not count in relation to PIPs.

[32] Mr Scott stated that around this time, sales staff were also advised that a strategic portfolio plan needed to be produced by each of them. Mr Scott explained he had done this several times before, however, Ms Williams inserted into Mr Scott’s calendar that he was required to work with her on his strategic portfolio plans so that she could “help” him. The meeting was scheduled for 3:00pm on 4 May 2021, titled “Portfolio Presentation Draft Due”. In the invite, Ms Williams wrote:

“Hey Ilona and Donovan, Can you please send your draft Portfolio Presentations, if you have not started working on it, then we will take this afternoon to sit in one of the meeting rooms and work on it together.”

[33] Mr Scott advised he had been with the business for more than three years, however, he had to be separated from the main working area while other team members had not completed theirs either and had minimal experience. Mr Scott added to this advising that this was done to him in a public forum. He believed this was so Ms Williams could try to assert herself and this frustrated Mr Scott as it undermined his previous experience and success in the business. He also viewed this to be a tactic to make Mr Scott’s working environment uncomfortable.

[34] Sometime on or around 6 May 2021, Mr Scott engaged in an internal conversation with a colleague, Ms Ilona Dougall on MS Teams chat. In this chat, Mr Scott asked whether Ms Dougall had managed to submit her presentation. Ms Dougall responded, “STILL PLAYING LOL”. Mr Scott noted that whilst Ms Dougall had not finished the presentation before he had submitted his, he was still made to sit in a room with the manager “like a child in detention” in front of other staff members. Mr Scott advised that the manager’s justification was that he had not completed his draft, however, Mr Scott submitted that “she is not my mother or teacher and even if I hadn’t completed the activity I should have been free to face the consequences of my action or inaction”. Mr Scott further advised that the fact that this happened to him only makes him believe it was targeted solely at him and not towards other team members.

[35] On 4 May 2021, Mr Scott submitted his Portfolio Plan draft as requested by Ms Williams. He submitted his final draft on 5 May 2021. Mr Scott stated that at this point, he had requested from internal team members evidence to show he had been doing what Ms Williams and Mr Parks had alleged he was not doing. Mr Scott had sent through customer CST requests for the month which he explained to be indicative of the customer service requests that he allegedly was not doing.

[36] On the same day, Ms McDowall replied to the email Mr Scott sent on 29 April 2021 advising that Mr Winter had returned from annual leave and would be taking over. But also said that it would be ideal for Mr Scott to meet the requirements.

[37] Mr Scott attended a meeting in the morning of 5 May 2021 where results had been displayed of other team members’ performance, and Mr Scott noticed that another team member, Mr Harry Dodeja had also not met the GES requirements. Mr Scott considered that Mr Dodeja’s results were close to his own. Mr Scott held suspicions that he was being targeted and so asked Mr Dodeja if he had received any feedback about his results, to which Mr Dodeja replied that he had not. Mr Scott submitted that this confirmed his suspicion of being targeted because whilst Mr Dodeja and he had similar results and that their GES unassigned had both been low in that metric, Mr Dodeja did not receive any verbal feedback whereas Mr Scott had gone straight to a PIP. Mr Scott further submitted that if the Telstra requirement was so crucial then its importance would be reiterated across the business.

[38] On 6 May 2021, Mr Scott emailed Ms Williams, Mr Parks and Mr Winter where he raised his concerns about the lack of consistency in the information provided and approach. Mr Scott had been advised that nothing could be done once a PIP was in place, then was advised that he was “heard”, and they were going to make some amendments. In the email, Mr Scott raised the following:

•  whether amendments would be made to the time requirement;

•  raised concerns of the PIP and its application citing that he felt targeted;

•  reiterated that he felt prior consultation and a more collaborative approach to improvement would have been more appropriate; and

•  advised that if a PIP could be implemented so flippantly then any manager with a vendetta could use it to hinder movement within the business due to the stigma attached to it.

[39] On 7 May 2021, Mr Scott sent an email to the general HR administration email and Mr Winter specifically about the internal grievance process. Mr Scott noted that nothing was sent through about this, however, he noticed that Mr Winter later emailed a process through to the Commission during these proceedings. On the same day, Mr Winter contacted Mr Scott via email to organise a time to talk about the situation. On 10 May 2021, Mr Scott attended a meeting with Mr Winter to touch base over the situation. Mr Scott reiterated his concerns over the PIP, the “fabrication” of the concerns on the PIP and the lack of data to support his alleged “poor” performance and the situation.

[40] On 12 May 2021, Mr Winter emailed Mr Scott about availability to touch base in the points Mr Scott had raised in the phone call about some of the unfair claims and stipulations. Mr Scott advised that he was available anytime and if he missed a call, he would touch base. On 14 May 2021, Mr Scott emailed to follow up as he had not heard back from Mr Winter. Mr Winter then replied, confirming availability. Mr Scott and Mr Winter spoke where they confirmed that the additional “misrepresentations” from the initial PIP had been removed.

[41] Mr Scott said he met with Ms Williams on 17 May 2021 where she presented the PIP, stripped of the ‘misrepresentations’. However, at this time, Mr Scott had researched the PIP fact sheet and found that the PIP implementation had been ‘wrong’ from the beginning. Mr Scott advised that none of the preliminary collaborative consultation had been carried out and he had been ‘blind sighted’. He further viewed that PIPs are not meant to be implemented during major business environmental changes where they had sold the Newcastle, NSW segment of the business and were selling South East Qld. Mr Scott stated there was an ambiguity in relation to their roles and their futures in the business during the months of April, May and June. Mr Scott further noted that there was no previous underperformance. He had just challenged the new process by which they wanted them to do it when Mr Scott’s original process was fine in quarter three.

[42] On the same day, Mr Scott emailed Mr Parks, Ms Williams, Mr Winter and the general HR email with detailed concerns around the PIP implementation and application, considering the aforementioned information he had found. Mr Scott also articulated in the email that now that they had changed the PIP after having all the ‘misrepresentations’ removed, the date for the end of the PIP had not been changed which was an unfair expectation. Mr Parks called Mr Scott at 4:40pm where Mr Parks threatened him with disciplinary action in the way of a misconduct hearing for not signing off on the PIP. Mr Scott said this call happened in front of staff where even Ms Dougall had communicated with Mr Scott via text and Facebook messenger, telling him to back himself up and keep requesting for these threats to be put into writing. Mr Scott emailed Mr Parks, Mr Winter and the general HR email advising of this threatening behaviour. Mr Scott advised in this email of Mr Parks’ use of words to the effect that he “think very carefully about what I am doing”, and also attached the call log. Mr Scott requested that Mr Parks only contact him via email until this situation is resolved.

[43] On 18 May 2021, Mr Scott emailed Mr Winter, Mr Parks, Ms Williams and the HR Administration email advising that he would wish that all correspondence on this matter be put in writing as he could not understand how an improvement plan, which was advised by Ms McDowall in a previous email, being remedial in nature would warrant such a response from his manager’s manager calling to make threats. Mr Scott also revisited his concerns of an agenda being present advising that he did not feel like his improvement was of concern. Mr Scott advised that by this time, he had engaged with a Union for advice. He was advised that a course of action and his ability to assert his rights to request a stop bullying and harassment order.

[44] Mr Winter responded to Mr Scott via email on 18 May 2021, advising that Mr Parks felt he had acted within his rights as a manager and that they had taken further steps to revise the PIP. However, Mr Winter did not address Mr Scott’s concerns with the timeframe but mentioned that the PIP is meant to be a coaching tool, not a disciplinary action. Mr Scott responded to this email later that day, advising as follows:

“I appreciate your response and have a few questions in your professional opinion,

If you are working for an organization and you are put on a performance improvement plan, while been advised it’s a company thing and remedial, however it is around the time that you have started asking questions around the relevancy of a target or even the delivery around it, While somebody else in a very similar situation wasn’t dealt with In the same manner but with the same manager , would that not be targeting or would you not see it that way?

Also while you have been an exemplary team member in the past, working tirelessly with your clientele and stakeholders to deliver on set expectations and suddenly you’ve been hit with an escalation process around improvement that has a lot of things on there that are fabricated to paint a picture of poor performance when everybody but the manager involved would refute, How would you perceive that??

Then you are told it can’t be reviewed , but then it can and it has , but then you read the process and it hasn’t been followed and factors haven’t been taken to account, How do you view this??

Then you raise in internal grievance around these things advising that you are feeling targeted but them get reassured that you’re not but because you challenge the PIP and the nature of it and the delivery of it. You get a call from a Manager above yours threatening you with formal action if you didn’t sign the PIP , which is supposed to be supportive and based on improvement, but a small caveat , you have been advised that you didn’t need to sign the PIP in writing for it to be in place as well as the date of the PIP had not been extended out to reflect the revision and you were now required to do twice the work in less the time, but still hit another target in order to get your rem ? Does this look like a supportive environment and circumstance to be in?

Have you ever had a team member that has gone through this process and have actually improved?

I have a few more questions [..]

If a Vita manager calls a team member because he feels a certain way about something however the team member advises he is in the middle of a task and it would be easier to schedule something later, does that manager have the right to try to force the team member to stay on the phone??

If the team member advises the manager after answering the same question 3 times that he is beginning to feel duress and undue especially after being threatened with formal action to sign a document without 24 -48 hrs to even think about it (also the document is supposed to be remedial) whether that manager has the right to force the team member to be on a call?” [original text kept]

[45] On 19 May 2021, Ms Williams sent Mr Scott the following email:

“Hey Don,

You are still on 126 for the month and have only completed 13 this month = 8 days left in month to complete 87 = 11 per day is now the requirement.”

[46] Mr Scott responded:

“Hi Josie

Thanks for the reminder, would prefer not to get them as I am working on it and I don’t need to be micromanaged. I am also currently working with HR around this as well and so do not need to be notified about it. Respectfully I have access to the report and can manage myself.”

[47] It is Mr Scott’s evidence that he felt he was being micromanaged with an intention to make him feel unsettled in the workplace.

[48] On 20 May 2021, Mr Scott contacted Vita People’s Telstra Liaisons team to discuss the strategies in reaching the GES unassigned target, however they did not know what he was talking about. After a brief explanation, the Telstra Liaisons personnel understood and advised Mr Scott around the strategy for the classification of customers. Mr Scott submitted that this led to feelings of being targeted further based on the following:

•  Mr Scott was on a remedial coaching plan around the classification of customers;

•  It was important enough to PIP Mr Scott over and threaten him over, but not enough to at least speak to another team member about their performance;

•  While the issue had never been getting them done, now that Mr Scott was not doing it the way Mr Parks and Ms Williams wanted it done, he was doing it wrong?; and

•  Advice that Telstra just wanted it done.

[49] On 20 May 2021, Mr Scott sent an email to Mr Trajceski and Mr Winter advising the following:

“Good Afternoon Tony

I just wanted to thank you for your time on the phone yesterday it was the more civil conversations I have had around this issue since this debacle began, I appreciate the ability to agree to disagree on certain things however work progressively toward a common goal and I believe that is servicing out customers to the best of our ability while fostering the relationship with Telstra, while in service to Vita. We covered off a few talking points yesterday :

- The reasoning behind GES unassigned (while agreeing on the premise, disagreeing on the methodology)

- The PIP (Which you have acknowledged I didn’t have to sign however still in place even though that terms had only been properly ratified 17/05/2021 with an end date of the 31^st/05/2021, as well as not assuming)

- Respect

You acknowledged my right to challenge the PIP in not signing it and even advised that you could respect that, a challenge which is still in place due to the nature implementation and the organizational circumstances that were not taken into consideration but also my feeling of being targeted due to the circumstances surrounding the PIP especially in asking questions around the GES unassigned, but also the additional conditions on the original PIP especially in asking questions around the GES unassigned, but also the additional conditions on the original PIP which were grossly over zealous and reaching to make me look worse than the actual situation. I would like to advise that rather than address these they were merely taken off the PIP without an acknowledgement and I was merely advised that the PIP had been revised, I have all 3 copies of the PIP’S that have been handed to me.

The other issue that is currently being addressed (I hope) and I am waiting to hear from @Tim Winter about is the rights of team members, whether in management or on the front line and the interactions between them and where exactly the line is ? You mentioned that you were aware of some of the dealings, I’m not sure the depth of that awareness as we didn’t get into those details however I listened while you regaled me with the expectations, which I appreciate, around the PIP. This entire situation leads into the other point you have made about respect. I wish you could have heard the conversations had around this time and even on Monday as I believe I was respectful as possible while asserting and defending myself while threatened with signing the PIP or being met with formal action as early as the next day, a PIP that I’ve been advised by both HR, Josie and yourself that did not need signing.

Is this kind of behaviour accepted ? as per @Tim Winter email, Matt felt he had the right as my manager to call me and address me in this manner. If you were me would you feel targeted and bullied especially in light of everything? I would like to thank you for opening your door as I feel like you might be the more reasonable person to engage with. I would like you to know I am dedicating this afternoon to finalizing some ISR’s and getting on to that list, I may be able to reach the target by the 31^st and still make commissions.

Cheers
Donovan Scott”

[50] On 24 May 2021, Mr Scott requested further clarification from Mr Winter around the emails he had sent Mr Winter previously. On 28 May 2021, Mr Winter advised that he would call Mr Scott when Mr Scott returned from personal leave.

[51] The application to the Commission was made on 3 June 2021. Mr Scott received confirmation from the Commission on 4 June 2021 regarding his application having been received. Mr Winter would not have known about the application made to the Commission at this point in time. Mr Winters sent the following email to Mr Scott:

“Hi Donovan,

I apologise for the delay in getting back to you, and also I was aware that you have been on personal leave this week.

I appreciate your grievances however we have spoken about your concerns with the performance improvement plan and the reasons it was provided to you. I felt in our conversation you advised that you understood the metric. You also mentioned that by speaking with Tony it provided you with further clarity and how vital it was in line with our partnership with Telstra.

In relation to be contacted by your manager the actions taken by Matt were a reasonable management action. Matt’s purpose was to speak with you regarding an matter in an urgent and timely manner.

I hope that has provided further clarity for you.

I would like to advise that as a team member at Vita Group if you feel aggrieved regarding any matter in the workplace that you can refer to Vita Group’s Grievance Resolution Procedure which is available on Vita Pulse.”

[52] Mr Parks called Mr Scott on 4 June 2021 advising of a disciplinary hearing, however could not specify what Mr Scott was accused of. Mr Scott asked Mr Parks why he was not advised informally of any wrongdoing. However, Mr Parks did not respond. A letter was provided to Mr Scott, informing his of the disciplinary hearing on 7 June 2021, allowing him to bring a support person with him. The letter details the following allegation:

“Allegations of Misconduct

Vita Group have alleged that you have engaged in conduct that, if substantiated, may represent a breach of Vita Group’s Code of Conduct and the Group’s Core Values and Behaviours. Specifically, the allegations that assert misconduct include:

i. Breach of Vita Group’s Code of Conduct, specifically, section 4.3 and section 4.4

a. It is alleged that on multiple occasions across April and May 2021, you have spoken and treated your manager in an inappropriate and disrespectful nature, whilst in the workplace.

In the circumstances we consider this conduct, if substantiated, represents a serious risk to Vita Group which may justify disciplinary action up to and including termination of your employment….”

[53] Later that day Mr Scott replied in email advising that he considered the allegation to be vague and he considered it was an attempt to intimidate and bully him. On 7 June 2021, having received the anti-bullying application made by Mr Scott, Mr Winter informed Mr Scott that the disciplinary hearing would be temporarily postponed to allow Mr Scott the opportunity to air his grievance with the Commission.

[54] On 18 June 2021, the sale of the business concluded. Mr Parks and Mr Winter left the business.

[55] On 25 June 2021, I directed the parties to participate in a telephone conference before me on 1 July 2021. During the conciliation conference, Mr Scott advised he learnt that the PIP was being side-lined while ever this application was before the Commission.

[56] Mr Scott submitted that upon touching base with Mr Cope, and explaining the situation, Mr Cope had decided not to pursue the disciplinary meeting. He also considered that Mr Cope understood Mr Scott’s reasons for his dissatisfaction with how the GES unassigned was performed. He considered that he should have been afforded an apology from Ms Williams, but he was also satisfied that Mr Cope understood his position.

[57] On 15 July 2021, Mr Scott was asked by Ms Williams to deal with a customer of hers as she was busy. Mr Scott served the customer, fulfilling their initial request but updating some of the pricing that would see them spending $1,500 instead of $250. While Ms Williams praised Mr Scott publicly, she pulled him aside to express annoyance that he did that. Mr Scott emailed Mr Cope. The following day, Ms Williams sent an email to the team advising to “sell, sell, sell” where there is opportunity.

Other undated materials of Mr Scott

[58] Mr Scott provided screenshots of an instant message discussion on MS Teams with Ms Williams. In this screenshots, Ms Williams wrote to Mr Scott, advising “Next time you are going to a store – can you please let everyone know and ask if anyone else needs anything # teamworkmakesthedreamwork and Alex is looking for 5 iphones and has been for a week”. Mr Scott responded in less than an hour, advising:

“Hey 100% agree however in order for there to be teamwork there needs to be communication and I was unaware of Alex’s predicament but trust that if it was important he would have come to me as he has in the past. I’m beginning to feel micro managed now when I am just trying to serve my customers and hit my target, these handsets were needed yesterday abs warehouse only appraised me of their stock situations yesterday so there is a deadline, I’m hoping this can be appreciated , thank you” [original text kept]

Mr Scott’s Material in Reply

[59] Mr Scott advised it felt “bittersweet” to view the witness statements of Ms Williams, Ms McDowall and Mr Cope, learning what they thought of him. He stated that he is thankful there are objective governing bodies that he can turn to and escalate matters, having put himself at the “mercy” of the Commission.

[60] Mr Scott stated that in relation to the allegations that he had spoken to and treated Ms Williams inappropriately and disrespectfully, the first time he saw the allegations was within Ms Williams’ witness statement and annexures.

[61] Mr Scott recalled that when he and Mr Cope met, Mr Cope advised that his intention was to gauge what Mr Scott’s issues were. It is his evidence that Mr Cope informed him to use his discretion and classify his customers as he saw fit.

[62] It is Mr Scott’s view that the policies around misconduct and performance at Vita People, and based on Ms Williams’ statement, there is a myriad of allegations centred around the following:

•  Behavioural (perception based) – lateness in the workplace, leaving work early, using Mr Scott’s size to threaten and intimidate Ms Williams, hostility and rudeness, not following identification process, customer complaints; and

•  Performance (merits based) – hitting target, GES classifications;

[63] Mr Scott advised that each policy has a process by which these scenarios are dealt with. He is of the view that each of the allegations have been made but none of the processes had been followed. Mr Scott further questioned what constitutes as behaviour and whether it is a one off or repeated?

[64] Mr Scott said that Ms Williams’ use of plurals within her witness statement stood out to him, indicating repeated behaviour of Mr Scott. He considered that she had made a mountain out of a molehill. While he understood “managers discretion”, he advised that such discretion can be abused which is why there are processes and policies to guide them and to address situations before they are escalated. Mr Scott advised that this opportunity had never been afforded to him in a formal context.

[65] Mr Scott referred to Annexures 1 and 2 of his witness statement where it indicated he was hitting the GES unassigned target as well as the GP targets for March 2021. However, a PIP was implemented in April 2021. Mr Scott advised that only after the PIP had been challenged and amended four times, was when he was then accused of inappropriate conduct and summoned for a disciplinary hearing.

[66] Mr Scott stated he was accused of not following “ID” processes but noted he had never been on a Telstra compliance report. Mr Scott advised that the governing organisation, Telstra, still has accepted paperwork and provided Mr Scott with CorpSME tags, through submitting paperwork as per their requirements, which he says is the only power he has. Mr Scott had also been accused of stealing sales from colleagues, but there had been no statement or evidence provided. Rather, Mr Scott is of the view that after being reprimanded, he had been provided an email where Ms Williams has indicated to them to “SELL SELL SELL”.

[67] Mr Scott sent an email to Mr Cope on 16 July 2021 asking for further clarification on matters:

“I just wanted to touch base after our conversation the other week. I hope that our meeting and conversation has revealed some of the values that I adhere to and the level of decision I bring to activities that I engage in. I appreciate the fact that we are entering uncharted waters and don’t want to be the 80/20 guy 20% of the team highlighting 80% of the issues but I had a conversation with Josie yesterday that has raised some concerns for me.

- She has advised we are reviewing the MQC’s and targets in order to make them more realistic and attainable, which you had already advised in our conversation (much appreciated)

- We spoke about the GES – unassigned aspect where she has tried to reiterate it being part of the contract with Telstra and offered to show me the agreement which I am pretty keen to look at because I believe I can propose a solution that will serve both Vita and Telstra but also mitigate losing time chasing minimal ROI re time spent. If my understanding of the requirement is correct it will satisfy Telstra while allowing our small team to maximize their results (PM1 and PM2 alike)

After having a challenging conversation around the GES aspect, I explained to her the reason why the whole system failed over especially in relation to the API between Vita view and CSSA and how rather than rectifying the situation decisions were made by management to continue on that path. She then admitted some information had come to light but didn’t want to elaborate. I then asked again “ if I were to assign my entire portfolio would that mean I didn’t have to worry about it further?’ she then confirmed no I would have another 100 to do the next month, and this is another concern because it means that we have completely gone away from account management model for which we were upskilled and trained for ?

The major concerns for me :

- If I went and ticked this box throughout my portfolio and actually started building relationships with customers or growing their wallet share (which is the TBTC program) then this would detract from the budding relationships especially If I couldn’t deliver within expected timeframes (it takes about 2 – 3 positive interactions to build trust)

- (Realistically the GES unassigned stuff can be an opportunity for supplementary sales to fill our pipeline while waiting for complex solutions to be claimed)

- How big will the portfolios actually get? and how many customers are there to actually classify and of those customers which of them are actually meant to be account managed? I have been doing the GES list and haven’t come across a single $1k monthly spend. She advised that Telstra have a use for it but wasn’t able to articulate it to me, we had a VC for apple with Jeff Yerbury where he reiterated the same vision for the TBTC since Pail Edmonson however we’re not actually doing that right now.

- Will we eventually get GES unassigned lists of customers with a higher monthly spend?, our Geozone is pretty large.

- Josie has related that she is not having time to do certain tasks and allocating tasks which is understandable , I’ve been allocated a sale from her for a customer in her portfolio because she was busy and I turned a $250 sale into a $1500 sale and while praised publicly has taken me aside to chastise me and say I should have alerted her to the opportunity, it wasn’t a complex sale I just updated the other mobile plans and fixed plans, last interaction they had with Vita was Nov 2020. I had to reiterate that my performance is a reflection of her and that when I win she does to.

- Are we redefining o-ur roles? How can we consolidate the requirement to sell these complex solutions and focus on the MQC’s when even after doing entire portfolios we could just be added with more tasks that will detract from being profitable while servicing the Telstra requirements.

It’s my hope that outside of these concerns you view this through the filter of someone that cares about the customers, the client and actually succeeding and doing the job and fulfilling the Vision that was sold to me.”

[68] Mr Scott also noted that he had received positive comments from staff and customers in relation to his behaviour. Mr Scott referred to LinkedIn recommendations made by colleagues making similar positive comments. For example, one of Mr Scott’s colleagues said as follows:

“Donovan has been our contact for all Telstra related matters for more than 3 years. He is professional, always contactable, responds promptly, no issue is too big or too small and he deals with all queries start to end. Donovan has dealt with sales and technical issues for our organisation and always looks for the best result for his client. I would recommend Donovan to any organisation.”

[69] Mr Scott considers it unfortunate that, rather than following the grievance procedures and investigating the allegations, Ms Williams has made an accusation that Mr Scott uses his large physical size to intimidate her. Mr Scott stated he does his best to ensure that even if he is being challenged, he is not threatening. He stated that he has never threatened or tried to stand over anyone and particularly not in the workplace.

[70] Mr Scott noted Ms Williams’ evidence that she had to block Mr Scott on multiple social media accounts from contacting her outside of work hours. Mr Scott advised that when Ms Williams started, she had connected with him on social media at her initiative. Mr Scott’s evidence is that he was hesitant to accept the friend request as he preferred to keep his work and personal life separate as he had previously lost friendships. He did, however, accept her request.

[71] Mr Scott noted that Ms Williams stated that they had been friends and there had been informal interactions. Mr Scott recalled one situation where he was frustrated about work and had messaged Ms Williams about it. He said he did so because she had earlier told him it was a safe place to talk and even disagree about things. Mr Scott advised they had disagreed, and Ms Williams blocked him on social media. When they went to work the next day, they both addressed it and apologised to each other. Mr Scott advised he has never attempted to contact Ms Williams on social platforms following this incident. He stated that it was a once-off, yet it had been made by Ms Williams to appear like a regular occurrence.

[72] Mr Scott concluded his reply submissions stating that he is hoping to get through this process and put this entire situation behind him. He submitted that, while he may not mention seeing a psychologist, or experience anxiety or stress, this does not mean it does not affect him. He said:

“One of the things that I have been taught is to never let your good be spoken evil of, and regardless of the outcome I am happy to have asserted myself and pursued this. If I am ever blessed with children, I would like to instil in them not to just be walked over if you see something to believe in to fight for it as well as always be honest and maintain good character and integrity.”

Evidence of Ms Williams

[73] Ms Williams commenced employment with Vita People in January 2020. After initially holding the position of Service Account Manager at Vita People’s North Queensland Telstra Business Technology Centre (North Queensland TBTC), Ms Williams was promoted to the position of Business Manager at the North Queensland TBTC. In this position, Ms Williams is responsible for:

(a) Management of the TBTC;

(b) Leading, managing and supporting a team of territory account managers across North Queensland;

(c) Managing a shared portfolio of 5000+ business customers;

(d) Resolving customer complaints;

(e) Ensuring Telstra’s policies and procedures are being followed by members of her team; and

(f) Managing the team in order to meet targets, KPIs and minimum quarterly commitments (MQC’s) set by Telstra.

[74] Ms Williams stated that she is Mr Scott’s immediate manager and works in the same physical location as him. She has weekly one-on-one meetings with Mr Scott where they discuss matters such as his performance against targets, sales pipeline, company updates, changes in processes or procedures etc. and whether Mr Scott requires any additional support.

[75] Ms Williams stated that until recently, Mr Parks was employed by Vita People in the position of General Manager TBTC. In this position, Mr Parks was primarily responsible for the overall management of all the Telstra Business Technology Centres across the country. Mr Parks was Ms Williams’ manager. His employment ended on 25 June 2021. Since Mr Parks’ departure, Mr Todd Cope, Regional General Manager of North and South East Queensland, has become Ms Williams’ manager.

GES Classifications

[76] The North QLD TBTC manages 5000+ small to medium business customers, allocated to it by Telstra. Ms Williams explained that Telstra uses multiple systems and platforms to manage their customers. One of Telstra’s requirements is that account managers make contact (conduct a “check in”) with each customer in their portfolio at least once per quarter. This is typically done by phone.

[77] Ms Williams stated that in addition, each quarter, Telstra releases new minimum quarterly commitments (MQC’s) that each TBTC around the country must meet. Under Vita People’s dealership/licence agreement with Telstra, each TBTC is required to complete the designated MQC’s each quarter, otherwise the agreement/licence can be terminated.

[78] Ms Williams stated that for the January 2021 quarter (Q3), Telstra included “GES classifications” as one of the MQC’s. This meant that each TBTC needed to go through their customers and classify them as either “Gold, Silver, Bronze or Copper”. Customers were to be classified based on their level of spend and the number of times the account manager would typically contact the customer each quarter.

[79] Ms Williams stated that the classification process was intended to be completed during a “check-in” with the customer (or during any other phone call with the customer). The North QLD TBTC was required to classify 3,500 of its customers by 30 June 2021 and the remaining 1,500 by 30 September 2021. To meet this target, each account manager at the North QLD TBTC was asked to speak with and classify a designated number of customers per day/ month. For the January 2021 quarter, each account manager was asked to classify 60 customers in January, 90 in February and 100 in March. For the April quarter it was 100 customers per month (with an express direction to complete at least five classifications per day - which would take between a total of 15 and 45 minutes per day).

[80] Ms Williams was responsible for managing the completion of the GES classifications. As part of this, Ms Williams sent regular emails to all team members setting out how may classifications they had completed and how many they were still required to complete. Ms Williams also stated that she discussed performance of this task at weekly meetings.

[81] Ms Williams recalled that from the outset, Mr Scott was very dismissive of the requirement to complete GES classifications. He made it clear that he considered the requirement to be unnecessary and not a good business practice. He also voiced his concern that completion of the task impacted his ability to generate sales and therefore earn commission. Ms Williams stated that Mr Scott made his opinion well known throughout the office.

[82] Ms Williams stated that Mr Scott refused to complete the GES classifications on a daily basis (as he had been instructed), and instead would only work on them toward the end of the month, and only if he had time. This was a problem as he often would not complete all of his classifications. For example, in January 2021 he only completed 45 out of 60 classifications, representing 75% of his task. In February 2021 he completed only 28 out of 90 classifications, representing 31% of his task. In contrast, in March 2021, he completed all 100 of the 100 classifications he was required to make because he worked on this task on a more regular basis.

[83] According to Ms Williams, when she attempted in April 2021 to discuss this issue with Mr Scott during their weekly one-on-one meetings and the team’s weekly meetings, he repeatedly stated that he did not want to complete this task and that he saw no value in it. Mr Scott repeatedly told Ms Williams that he thought the GES classifications were “stupid” and a “waste of time” and would argue with her about the requirement.

[84] Ms Williams understood that Mr Scott wanted to prioritise sales activities which generated more commission for him. Mr Scott’s repeated refusal to comply with the business’ requirements in relation to GES classifications was a source of great concern to Ms Williams and Mr Parks.

[85] Ms Williams recalled in a one-on-one meeting with Mr Scott in the week commencing 19 April 2021, Mr Scott told her that he would complete his GES classifications during the last week of the month (the following week), provided that he had hit his PM1 target.

[86] Ms Williams explained that Mr Scott’s approach in waiting until the end of the month meant that he would need to complete all 100 classifications in the one day which would take him a whole day. This approach was not acceptable because it increased the risk that Mr Scott would be unable to complete all of the classifications in time and meant that he would be unable to complete other daily tasks on the day he elected to complete this task.

Commission Structure

[87] Ms Williams stated that Territory Account Managers are eligible for commission payments. Up until recently, Territory Account Managers were eligible for commission based on their performance against two separate performance measures. Performance Measure 1 (PMl) focuses on the gross profit generated by the account manager, with commission being payable once a certain level of gross profit is reached. Performance Measure 2 (PM2) focuses on the account manager’s performance in respect of four designated MQC’s each quarter. The amount of commission an employee could earn under PMl was higher than that under the PM2 metric.

[88] Ms Williams confirmed that for the January - March 2021, and April - July 2021 quarters, completion of the GES classifications was one of the MQC’s which were included in the PM2 target/commission scheme. As no employee at the North QLD TBTC had achieved their PM2 targets in the last 12 months, a decision was made to abolish the PM2 part of the commissions scheme in August 2021.

Performance concerns

[89] Ms Williams stated that for several months she was concerned with numerous aspects of Mr Scott’s performance including:

(a) his failure to complete his GES classifications in the required timeframes;

(b) his failure to complete assigned Telstra Leads within Telstra’s 4-hour contact rule;

(c) his failure to submit customer service requests to the Business Plus Support team in line with Telstra’s account management program;

(d) his failure to meet Telstra ID requirements;

(e) him using work time (up to two hours per day at times) to listen to personal podcasts and training videos on Linkedln (at the expense of completing other tasks such as his GES classifications); and

(f) him arriving for work late without any notification or explanation (and similarly leaving work during the day without notification or explanation).

[90] Ms Williams stated that she raised these concerns with Mr Scott many times during their weekly one-on-one meetings. In addition, these issues had also been raised with him by Mr Parks, Mr Heath Atkins, Pre Sales Engineer, and Ms Heather Sharp, Project Manager.

[91] Ms Williams stated that since being promoted to Business Manager, Mr Scott’s attitude towards her had changed and he had become rude and condescending towards her. For example, Mr Scott would:

(a) call her “dude”, “bro” or “man” despite that fact that she is a female;

(b) make comments which indicated that he did not accept her as his manager;

(c) question her experience and say things like “maybe one day [she] would learn”;

(d) openly criticise the way she was doing her job; and

(e) when asked to do something - respond in an aggressive, hostile, dismissive; or rude way (often saying things like “this is stupid, I am not doing it”.)

[92] During the hearing, Ms Williams stated that she told Mr Scott in November 2020 that she did not like him calling her “dude, bro or man”. She stated that he still does it.

[93] Ms Williams stated that after four months of attempting to get Mr Scott to meet the requirements in relation to GES classifications, and having been told again in the week commencing 19 April 2021 that Mr Scott did not intend to follow her instructions in relation to the completion of the GES classifications, on 27 April 2021 she emailed members of the HR team, Ms Hall and Mr Winter, setting out a summary of the concerns she and Mr Parks held, and seeking advice and support in relation to managing Mr Scott’s performance. Following this email, Ms Williams recalled that she spoke to Ms Hall who advised that a PIP should be implemented. In Mr Winter’s absence, Ms Williams worked with Ms McDowall to draft the PIP.

Implementation of Performance Improvement Plan

[94] Ms Williams stated that on the morning of 29 April 2021, Mr Scott asked to meet with her in private to discuss his GES classifications, to which she agreed. Ms Williams recalled that at that point in time Mr Scott had only completed 8 of his GES classifications and therefore still had 92 to complete by the following day. Ms Williams’ evidence is that during the discussion:

(a) Mr Scott again told her that he didn’t think he should have to complete this task, saying that he thought that the business structure should change and expressing the view that completion of this task brought no value to him;

(b) Whilst she tried to explain why the task needed to be completed he continued to argue with her about the requirement to complete this task and told her that he felt there was no value in it;

(c) Mr Scott told her that he was only going to complete his classification if he met his PM1 sales target and “if he had time”

[95] During this discussion Mr Scott asked for a copy of his employment contract. Ms Williams enquired with Ms McDowall and asked for a copy to be provided to him.

[96] After 15 minutes of the conversation going “round in circles” Ms Williams presented Mr Scott with the PIP. The PIP was due to run from 30 April 2021 until 31 May 2021 and identified two key areas for improvement. The first related to meeting targets in relation to GES classifications - in this respect a target of 5 per day/25 per week was set (consistent with other team members). The second related to actioning customer service requests within 24 hours. In addition, Mr Scott was directed not to listen to personal podcasts or training videos during working hours (unless such training was mandatory training required by Vita People).

[97] Ms Williams stated that she was not given much of an opportunity to discuss the PIP with Mr Scott as he immediately rejected it and disputed its contents. Ms Williams recalled that he became very hostile and aggressive towards her. In particular, he spoke to her in a raised voice whilst throwing his hands up into the air, he spoke over the top of her, he said “Dude you’re wrong, this is bullshit”, he said that Ms Williams was ruining his career and he told Ms Williams she was a bad person and bad manager.

[98] Ms Williams stated that Mr Scott is larger than her and she felt intimidated by his conduct and, as such, she ended the meeting. Later that morning, Ms Williams emailed Mr Scott a copy of the PIP. Mr Scott sent various emails on 29 April 2021, disputing the need and appropriateness of the PIP as well as the lack of prior notice and consultation regarding the issues raised in it. Following those emails, Ms Williams agreed to meet with Mr Scott the following day to further discuss the PIP.

[99] Ms Williams stated that Mr Scott’s assertion that he was not consulted about the PIP and had not been given any prior notice or warnings in relation to his performance was incorrect. Ms Williams had discussed with Mr Scott her concerns regarding the completion of his GES classifications and the other issues covered off in the PIP on multiple occasions during their one-on-one meetings.

[100] On 30 April 2021, Ms Williams met with Mr Scott to further discuss the PIP. Ms Williams recalled that Mr Scott seemed calmer than the day before and more willing to discuss the PIP. However, when they started to discuss the GES requirement, he persisted in disputing this requirement and explaining why it should not be part of Telstra’s business structure. He again asked why he had to do it and said that the way he does his job should not include this performance requirement.

[101] Ms Williams stated that she attempted to explain this was not something that she created or mandated and this it is a Telstra requirement for every account manager, including herself. Mr Scott then expressed how “betrayed” he felt and said that Ms Williams had “lost all his trust” and that “she had gone about this the wrong way”. According to Ms Williams, Mr Scott stated that she should have talked to him about the issues rather than implementing the PIP. In response, Ms Williams reminded him that she had raised these issues with him multiple times in weekly one-on-one meetings.

[102] Ms Williams felt that they were going round in circles. Ms Williams then said to Mr Scott that even if the task is time-consuming or frustrating, everyone needs to do it as it is a Telstra requirement and therefore not negotiable. According to Ms Williams, Mr Scott then said that he did not want to sign the PIP and that he would seek legal advice. Ms Williams reiterated that the PIP was being implemented to support him to get on track.

[103] Following the meeting, Ms Williams sent Mr Scott a revised version of the PIP which corrected a typo. In the email, Ms Williams advised:

“Afternoon Donovan,

Please see updated PIP, apologies for confusion around;

‘Watching Podcasts/listening to online coaching/developing videos through other platforms is prohibited during working hours unless they are Telstra/Vita mandatory/required learning.’

Kind regards,

Josie Williams”   

[104] Mr Scott responded to this email shortly after, advising:

“Not a problem good thing I called it out hey. So just to be clear it is prohibited for me to do so in light of the fact that I mentioned I only do this when provisioning contracts and proposals and try to be as constructive as possible while still doing tasks I can’t be on the phone for ? Just wanting to reiterate that there are other team members company wide that do this too.”   

[105] Ms Williams responded to Mr Scott, advising “that is correct as per the PIP” due to “GES unassigned calls haven’t/aren’t being completed and needs to be a focus for us to improve”. Mr Scott replied reiterating that calls cannot be made “GES or otherwise” while processing paperwork or proposals. Mr Scott raised that this felt like a punishment rather than an improvement opportunity. Shortly after, Mr Scott sent a separate email to Mr Parks and Ms Williams regarding the PIP and wanting to formally note certain matters. These matters are as follows:

•  Mr Scott had been advised that he is only to listen to educational material during processing times, whether contracts or ISR, but all done during times that he is not on the phone or required to be. Mr Scott raised that Vita is an organisation that sometimes reimburses employees for courses taken on education especially where it benefits the team member and the business.

•  There is no measurement of customer service request determining success or failure and as such, Mr Scott advised he could do thousands but still fail. He does not know what kind of plan cannot determine a measurement of success, and that it is noted in the system how many requests are made.

[106] Ms Williams met with Mr Scott on 5 May 2021 to review his performance against the PIP. During this discussion, Mr Scott’s performance in relation to GES classifications for April 2021 was discussed. It was noted that he had only completed 15 out of 100 classifications. Other elements of the PIP were also discussed, such as the ADSL disconnections and portfolio presentation. Ms Williams told Mr Scott during this meeting that she had taken on board his comments and concerns regarding the PIP. She further mentioned that she was actively speaking to HR and Mr Parks to try to come to a resolution so that all parties were happy and comfortable moving forward.

[107] The following day, Mr Scott sent Ms Williams, Mr Parks and Mr Winter an email continuing to dispute the PIP. The email, addressed to Ms Williams, said as follows:

“As advised yesterday (05/052021) by you wanting to review the PIP again post 1:1 where you advised nothing could be done. You have advised “you have heard me” and would like to review it after advising that once it was in place it could not be amended. I need to find out what these amendments will do to the date range of the PIP regarding the requirements of it and the delivery dates required on it and how this affects me. I have articulated this in an email with all the involved parties as per Bec’s (previous HR) email as I am trying to figure out the best course of action for me.

I must admit I am still blindsided with being presented this after seeking further clarification on some of the tasks and the value they add but also have major concerns:

- The PIP and application and entire circumstances around it felt targeted to me – is this really for improvement of are you trying to establish some form of dominance? This is the reason why I asked for prior consultation because in any business setting team members should be able to work collaboratively on their improvement rather than be handed with a document with a list of “to do’s”

- The issue of a PIP with trying to move within Vitagroup especially after your advice yesterday. I feel it might hinder future opportunity and if it can be handed to a team member flippantly. It means that any team leader with a vendetta could use it as a weapon in a professional context.

I’m hoping some additional dialogue may be needed around this in the interest of actual intention, equal and fair treatment within the business. Some review may actually be needed and I don’t feel comfortable just dealing with you or Matt Parks in this matter, in light of these circumstances.

Thank you

Donovan Scott
Territory Account Manager”

[108] Ms Williams sent an email to Mr Scott on 10 May 2021 setting out some actions that needed to be worked on together. Mr Scott responded to this email, stating that he was happy to develop a framework based on Ms Williams’ expertise and experience. However, Ms Williams felt that his comment in his response, that “there are some instances of effective pre call planning feel [sic] might be a bit out of your range”, to be condescending in nature.

[109] Ms Williams advised that from the time she issued the PIP to Mr Scott, she was in daily contact with members of the HR team to ensure that appropriate processes and procedures were being followed in relation to the PIP and that the working environment was safe for everyone. Ms Williams raised that she was particularly concerned because Mr Scott’s conduct towards her in relation to the PIP was aggressive, hostile and rude.

[110] Following discussions with Mr Winter, Ms Williams stated that a decision was made to amend the PIP to only address the issue of the GES classifications. It was thought that this change would make Mr Scott more accepting of the PIP and reduce the level of hostility surrounding it. Ms Williams met with Mr Scott on 17 May 2021 where she presented this revised version of the PIP. However, Ms Williams advised that during this meeting, Mr Scott was very rude and condescending towards her. He threw his hands up in the air and said words to the effect, “I disagree with the GES requirements so much that I am willing to be walked out of here over it”. Ms Williams asked Mr Scott to reconsider his approach to this and told him that she had an obligation to enforce the GES requirements as part of his role. Mr Scott continued to express his disagreement with the PIP and the GES requirements before leaving the room saying, “I look forward to seeing how this plays out and who’s right and who’s wrong.”

[111] Following the meeting, Ms Williams reported to Mr Parks what had occurred and expressed her distress at the way in which Mr Scott had spoken and acted towards her during the meeting and in general. Later that day, Mr Scott sent an email to Mr Parks and Ms Williams continuing to dispute the PIP. The email, addressed to Mr Winter, Ms Williams and Mr Parks, said as follows:

“As discussed with Jose today when presented with the updated PIP I have decided not to sign It as I still do not agree with the terms in which is has been presented, My reasons for this are as follows, I was advised the PIP was a remedial action where performance was lacking in this instance is used as a method to improve performance, the underlying aspect is I had reached the GES unassigned target in Q3 however management was not happy with the way I achieved it when everybody has a different way of working. I would like to reiterate I am not against doing them however to believe a better method of delivery should be made available (as we have the capability) to bring more value to Vita , our customer and ourselves.

- As per the PIP fact sheet PIP’s are escalation points that are implemented as part of a formal meeting and consultation – none was had and I was advised In writing from HR that this did not have to occur.

- I was only presented a PIP after challenging the delivery of 1 aspect of the PM2 target, and advising I’d prefer to consult with HR, however no other aspects of the target were addressed , leading me to believe this was just a attempt to whip me into submission for this one thing.

- I would also like to note that I had gone through and classified all of my customers (in my portfolio) before this became a “requirement”, I had done this before anybody else across the TBTC program, however now with the reshuffle of portfolios all of my previous work has been shuffled and now I have to detract from servicing my customers to attend to time consuming tasks with minimum return, against not against classification (as I have completed it before) but I believe there is a better way of doing it and am not being heard.

- The other reason why I am challenging the PIP is because the process around the delivery of the PIP was rushed especially where due diligence is required because of the consequences attached to it. There have been circumstances around this that have been overlooked. Please observe the extracts from the PIP fact sheet :

There have definitely been: Third Party Factors, Organizational Factors, The business has been selling pieces of the business ICT arm, Newcastle in March, and South Qld in May/June. As well as a reshuffle of the portfolios 4 – 5 times since November 2020.

Please also refer to the improvement plan Timetable, as mentioned in the fact sheet there is a requirement of consultation, however as advised by HR there is no consultancy period and a PIP can be handed out at a managers discretion i.e. whenever they feel like it.

The other Issues I would like to raise is upon reviewing the PIP and supposedly agreeing to it the timeframe has not been changed even though there has been a significant time since it was originally introduced, which is unfair because outside of challenging it I now have to spend extra time to meet the requirement in half the time while still having to adhere to other targets of which I may be PIP’d for next :/ especially. This particular circumstance has been managed a certain amount of inconsistency to the actual process.

In conclusion I would like to reiterate I am not against classifying out customers but believe as we are part of an account management model that it needs to be done with a certain amount of due diligence in order to gain a significant value return for Vita and our customers. Am happy to discuss…”

[112] Ms Williams advised that she understood that a telephone conversation took place later that afternoon between Mr Parks and Mr Scott. Ms Williams, however, was not privy to that conversation but was present in the room when Mr Scott received the call from Mr Parks. Mr Scott spoke in a very loud voice during the call, as though he wanted everyone else in the office to hear. Shortly after the call, Mr Parks informed Ms Williams that he had called Mr Scott to try and have a chat with him about what had happened, however Mr Scott refused to speak to him.

[113] On 18 May 2021, Ms Williams emailed Mr Scott a copy of the revised PIP. On 19 May 2021, after consultation with Mr Winter, Ms Williams sent an update to Mr Scott on his progress in relation to his GES classifications, being that Mr Scott was still on 126 for the month and had only completed 13 for that month. She reminded him that he had 8 days left in the month to complete 87 calls. Mr Scott responded on the same day, advising the following:

“Thanks for the reminder, would prefer not to get them as I am working on it and don’t need to be micromanaged. I am also currently working with HR around this as well and so do not need to be notified about it. Respectfully I have access to the report and can manage myself.”

[114] Ms Williams spoke to Mr Winter later that day to make a complaint in respect of Mr Scott’s conduct towards her which reached a situation which she considered to be unbearable. Mr Winter asked for Ms Williams to send through her complaint in writing, which she did on 20 May 2021.

[115] Ms Williams understood from her subsequent discussions with Mr Winter and Mr Parks that a disciplinary process was to be commenced in relation to Mr Scott’s conduct towards her. Ms Williams was later informed that a decision had been made to place the disciplinary process on hold as a result of Mr Scott filing his application in the Commission.

Performance following implementation of PIP

[116] Ms Williams stated that after the implementation of the PIP, Mr Scott continued to fail to meet the required GES classification target. In particular, Mr Scott only completed 32% of his calls in May, 18% of his calls in June, and 27% of his calls in July. Ms Williams advised that for context, her review of the GES classification records indicate that every other team member at the North Qld TBTC has completed 98% - 100% of their GES classifications since January 2021.

[117] On the advice of Mr Winter, the PIP was put on hold in June 2021 as a result of Mr Scott filing his application with the Commission. Since that time, Ms Williams has not been involved in any further formal review meetings regarding the PIP or any disciplinary processes in relation to Mr Scott. Ms Williams advised she has continued her day-to-day management of Mr Scott as per normal. She stated that she has had, and continues, to have significant difficulties working with and managing Mr Scott. Mr Scott has told Ms Williams on multiple occasions that he thinks Ms Williams is a bad manager and a bad person, and that he does not want Ms Williams as his manager. She stated that Mr Scott would frequently arrive to work late without any explanation and would also leave the workplace without notice at least three times per week. Ms Williams described Mr Scott’s behaviour towards her when she asks a question of him to be rude and hostile.

[118] Ms Williams stated that Mr Scott’s behaviour towards her remains unaddressed, and he has performance issues. She did note that for the July – September quarter, Mr Scott has been completing his GES classifications.

Strategic portfolio plan

[119] Ms Williams referred to Mr Scott’s statement where he mentioned the strategic portfolio plan and that Ms Williams had engaged in conduct designed to undermine him and make his work environment uncomfortable. In response, Ms Williams stated that each Account Manager is required to complete a portfolio presentation once every three months. The portfolio presentation sets out their future sales strategies and the Account Managers present on current opportunities and progress with targets and MQC’s. For the fourth quarter presentation, Account Managers were asked to present a strategic plan for their customers. A draft of each Account Manager’s plan was due to be submitted to Ms Williams by 29 April 2021, with final versions due on 5 May 2021. On 4 May 2021, during the morning team meeting, Ms Williams reminded all team members that their final presentation was due the following day and asked that any outstanding drafts be sent to her by lunchtime. She then followed this up with an email.

[120] Ms Williams sent a separate email to Mr Scott and one of his colleagues as they were the only two who had not sent to her their drafts. In this email, Ms Williams stated that she would sit down with them to work on their presentations that afternoon if they had not completed it. Mr Scott’s colleague sent Ms Williams a draft of their presentation shortly thereafter.

[121] Later that day, Ms Williams sat down with Mr Scott in the meeting room to assist him with his presentation. She helped him with finding multiple reports and provided suggestions on the content of his report. At no time whilst working on the report did Mr Scott say or do something that would indicate that he felt uncomfortable or that Ms Williams was being unreasonable. On the contrary, Ms Williams advised that Mr Scott appeared to be grateful for the help as he thanked her for helping him. On 5 May 2021, Ms Williams sent an email to Mr Scott with some suggestions regarding his draft presentation.

“Harry”

[122] In Mr Scott’s witness statement, he stated that his colleague, “Harry” had also not been meeting his GES classifications targets but that he was not performance managed in relation to this issue. Ms Williams agreed that Harry has not been performance managed for his failure to meet his GES classification targets. This was because during the relevant period, Harry was the only Territory Account Manager at the Brisbane Telstra Business Technology Centre and therefore there was a considerable additional workload on him. Ms Williams explained that usually there would be three to four Territory Account Managers.

[123] As a result of the higher than usual workload on Harry, Mr Parks made a decision to allocate Harry’s GES classifications to other staff members. Ms Williams stated that those staff members completed the required GES classifications on time and in line with the required targets.

Business change

[124] Ms Williams referred to Mr Scott’s witness statement where he claimed that during April, May and June 2021 there was ambiguity in relation to his role and future in the business as a result of the sale of the Newcastle segment of the business and the pending sale of the South East Queensland part of the business. On that basis he asserted that a PIP should not have been implemented during this time. Ms Williams advised that whilst the business was and is undergoing a period of change, there has been no change to the requirements of Mr Scott or any other Territory Account Manager’s role. In particular, the requirements in relation to GES classification (which were introduced in January 2021) have remained the same throughout this period.

Prior performance issues

[125] In response to Mr Scott’s assertion that he had no previous underperformance and that the PIP arose because he challenged the new process, Ms Williams stated this is not correct. Rather, Mr Scott was placed on a PIP as a remedial step given his repeated failure to complete GES requirements as directed and the other performance issues identified earlier.

Events of 15 July 2021

[126] Ms Williams referred to the incident on 15 July 2021 where Mr Scott assisted one of Ms Williams’ customers. Ms Williams explained that in the circumstances where a customer requires assistance and their account manager is unavailable, the rule is that another staff member will assist the customer with their immediate request and then refer the customer back to their account manager.

[127] On 15 July 2021, Ms Williams asked Mr Scott to activate two post-paid new numbers (PPN’s) for one of her clients as she was tied up with something else. However, rather than simply activating the two PPN’s, Mr Scott offered the customer a full account review. When he got off the call with the customer, Mr Scott said, words to the effect, “I just got $1,500 from that sale”. Ms Williams found this confusing as the general rule is to complete the one-off transaction and for anything more, they were to refer the customer back to their account manager (which in this case was Ms Williams). On this occasion, Mr Scott did not do this and instead went into the customer’s account and actively sought more sale opportunities. Ms Williams was aware that he had done this to other account managers as well which made them unhappy as they missed out on the commission for the sale. Ms Williams felt it was necessary to explain to Mr Scott that while she does not mind if he does that in her accounts, he should not do this in respect of other account managers’ client as it would likely upset them.

[128] Mr Scott referred to an email that Ms Williams sent to the team on 16 July 2021, which told the team to “sell, sell, sell”. Ms Williams explained that this email clearly stated that she was referring to situations where a staff member is dealing with one of her customers and not in relation to dealing with another general staff member’s customers.

Impact of Mr Scott’s conduct towards Ms Williams

[129] From the start of 2021, when Ms Williams had completed her training and became Mr Scott’s manager, Ms Williams found Mr Scott’s behaviour and attitude towards her as being inappropriate, rude and hostile. Ms Williams stated she has had to block Mr Scott from multiple social medial platforms, leave work early due to Mr Scott’s condescending way of speaking to her, and call in sick due to panic attacks resulting from his conduct towards her. In addition, Ms Williams advised she has started seeing a psychologist to help manage the effect of his conduct has had, and continues to have, on her.

Consultation with HR

[130] Ms Williams advised that when seeking to implement the PIP and post implementation, she has at all times acted in consultation with and on the instruction of her manager at the time, Mr Parks, and members of the HR team.

Evidence of Ms McDowall

[131] Ms McDowall commenced employment with Vita People in the HR team on 18 March 2016. Ms McDowall explained that Vita People is a company within the Vita Group. Vita Group has a licence from Telstra to operate designated Telstra Stores across Australia.

[132] In November 2020, Ms McDowall was promoted to the position of HR Business Partner where she is responsible for stakeholder support in their Retail ICT Western Australia Telstra Licensees Stores and Queensland Retail Contact Centre. “ICT” stands for Information Communications and Technology.

[133] Ms McDowall advised that the business had undergone a period of significant change in recent months due to the sale of the ICT part of the business. As a result, a number of HR and managerial employees involved in the matter are no longer employed with Vita People.

Role of other relevant persons

[134] Until recently, Mr Winter was employed by Vita People in the position of HR Business Partner where he was responsible for stakeholder support in the business ICT Telstra Business Technology Centres and Retail ICT Victoria and Tasmania Telstra Licensee Stores. Ms McDowall advised that Mr Winter is no longer employed by Vita People, with his employment ending on 25 June 2021.

[135] Until recently, Ms Jessica Hall was employed by Vita People as the HR Advisory Manager where she was responsible for managing the team of HR Business Partners (including Ms McDowall and Mr Winter). Ms Hall is no longer employed by Vita People, with her employment ending on 29 June 2021.

[136] Mr Scott is employed as a Territory Account Manager at the North Queensland TBTC. Ms Williams is the Business Manager at the North Queensland TBTC and she is Mr Scott’s manager. Until recently, Mr Parks was the General Manager TBTC where he was responsible for managing all of Telstra Business Technology Centres across the country. Mr Parks was Ms Williams’ manager, however, he is no longer employed by Vita People with his employment ending on 25 June 2021.

[137] Mr Tony Trajceski was the General Manager of Business and Enterprise ICT where he was responsible for managing business and enterprise channels. Mr Trajceski was Mr Parks’ manager. Mr Trajceski’s employment ended with Vita People on 25 June 2021. Mr Todd Cope is the Regional General Manager of North and South Queensland of Vita People. Since Mr Parks’ and Mr Trajceski’s departure, Mr Cope has taken over their responsibilities and is therefore Ms Williams’ current manager.

Mr Scott’s employment terms

[138] Ms McDowall advised that the terms and conditions of Mr Scott’s employment are as set out in the Letter of Offer dated 9 October 2019 (Contract) and the Vita People Pty Ltd Terms & Conditions of Employment (Employer Greenfields Agreement 2009) (Greenfields Agreement). Mr Scott’s base salary is $65,000 per annum. In addition to his salary, Mr Scott is entitled to commission. For the 2020/2021 financial year, Mr Scott was paid $9,475.22 (gross) in commission.

Performance management procedure

[139] Ms McDowall stated that Vita People has a documented performance and conduct management policy. Of particular relevance, Part 5.3.2 concerns the implementation of a PIP.

“5.3.2 Remedial Action

When managing performance and conduct, Vita Group may implement remedial actions with a team member. Remedial actions include resetting expectations and providing further coaching, guidance, advice, feedback, mentoring, training and further direction.

It is important to note that remedial action may be undertaken by the Business at any stage of the managing performance and conduct process. A disciplinary process does not need to have commenced in order to impose remedial action.

Vita Group may implement performance plans with team members when performance issues are first identified. These plans allow Vita Group to reset the expectations and performance expected and set clear actions and support to improve a team members performance over a reasonable set period. Performance plans can also be used as a remedial support performance improvement following the issuance of a disciplinary outcome.”

[140] Ms McDowall stated that under this policy, the implementation of a PIP is a remedial action. The intention is for a PIP to be implemented to address concerns regarding performance, and as a means to assist the team member to make the necessary changes. Within Vita Group, a PIP is not in itself considered to be a disciplinary action or process.

Implementation of performance improvement plan

[141] Ms McDowall advised that she was asked by Ms Hall on 27 April 2021 to assist Ms Williams with preparing and implementing a PIP in respect of Mr Scott. Ms McDowall was asked to assist as Mr Winter was on leave at the time. Ms McDowall was provided with a copy of an email from Ms Williams to Mr Hall, Mr Winter and Mr Parks which summarises Ms Williams’ concerns regarding Mr Scott’s performance. Briefly put, the concerns were in respect to Mr Scott’s:

•  Conduct and behaviour towards the team, customers and Ms Williams;

•  Ability to meet the job requirements, such as classifying customers, account or portfolio management, sales, performance and KPI’s/targets;

•  Orchestrating of cross-functional resources and teams to solve underlying service issues and problems and remediate customer issues; and

•  Managing service requests in a timely manner to meet customer expectations and grow incremental revenues from each customer within the portfolio.

[142] Later that same day, Ms McDowall spoke with Ms Williams about a potential PIP for Mr Scott based on the concerns she and Mr Parks held about Mr Scott’s inconsistent performance to date and the impact it was having on the North Queensland TBTC. Based on her conversation with Ms Williams, and the content of Ms Williams’ email of 27 April 2021, Ms McDowall was satisfied that it would be reasonable to implement a PIP to support change in Mr Scott’s behaviours and reprioritisation of work requirements. Ms McDowall recommended that the PIP focus on two to three chosen metrics.

[143] On 27 and 28 April 2021, Ms Williams drafted the PIP in consultation with Ms McDowall and Mr Parks. Ms McDowall reviewed the final version of the PIP and was comfortable with its content. It is Ms McDowall’s understanding that Ms Williams intended to meet with Mr Scott on 29 April 2021 to discuss the PIP.

[144] On 29 April 2021, Ms Williams called Ms McDowall and advised that Mr Scott wanted a copy of his employment contract. Ms McDowall sent an email to Mr Scott with the contract and Greenfields Agreement. Mr Scott called Ms McDowall later that morning, advising he wished to discuss the relevance of the GES classification metric in the PIP as he felt that it was not an appropriate use of his time to be completing the task and he wanted to challenge its relevancy. Ms McDowall replied that his question was operational in nature and that she could not provide clarity on Telstra requirements. Ms McDowall redirected him to Mr Parks.

[145] Later that same day, Mr Scott emailed Ms Williams and copied Ms McDowall, Mr Parks and Mr Rhys Wawryck (Territory General Manager), raising concerns about the PIP. Ms McDowall responded to Mr Scott’s email, advising as follows:

“From a policy and procedural perspective I can confirm there is no defined period of prior underperformance required for a plan to be implemented, only that a concern exists and improvement is required.

The goal of a performance plan is to improve performance to the required standard. As such a performance plan is a remedial activity, not a disciplinary action, and therefore does not require formal notice to be introduced. It is an activity that can be discussed in a normal one on one with your leader and you can contribute further to the plan if you have any further ideas for different or additional improvement or support activities.

You can speak further with both Josie and Matt on additional contributions you would like to make to the plan, Josie may then update the plan accordingly.”

[146] On 4 May 2021, after returning from a period of leave, Ms McDowall responded to Mr Scott’s last email from 29 April 2021 and also informed him that Mr Winter was back from leave and would take over management of the matter from a HR perspective. Ms McDowall confirmed she had no contact with Mr Scott about this or any other matter since her email of 4 May 2021 and she has not been involved in any subsequent decisions about the PIP, the grievances filed by Mr Scott or Ms Williams, or the disciplinary process involving Mr Scott.

Internal grievance

[147] Notwithstanding the above, Ms McDowall understood from Vita People’s records that Mr Scott enquired via email with Mr Winter and the HR Team on 7 May 2021 whether Vita People had a grievance procedure. She has also attached a series of emails between Mr Winter and Mr Scott from which it appeared that Mr Scott and Mr Winter had a discussion on Monday, 10 May 2021 and that Mr Scott then sought a further discussion with Mr Winter. Ms McDowall advised that it is unclear from Vita People’s records whether a further discussion took place.

[148] Ms McDowall further understood from Vita People’s records that on 17 May 2021, Mr Scott sent an email to Mr Winter complaining about the PIP and a phone call he had received from Mr Parks that day, stating that he felt the call amounted to bullying by Mr Parks. The correspondence indicates that Mr Winter attempted to address Mr Scott’s concerns and clarify his expectations. Mr Winter also referred Mr Scott to the Grievance Resolution Procedure if he wished to lodge a grievance.

Disciplinary Process

[149] Upon review of Vita People’s records, Ms McDowall understood that on 20 May 2021, Ms Williams called Mr Winter to report inappropriate conducted engaged in by Mr Scott towards her in recent months. As a result of Ms Williams’ complaint, Mr Parks and Mr Winter decided that it was appropriate to commence a disciplinary process in relation to Mr Scott’s alleged conduct towards Ms Williams.

[150] On 4 June 2021, Mr Scott was provided with a request to attend a disciplinary hearing. from what Ms McDowall understood from Vita People’s records, the intention was for that hearing to take place on 7 June 2021, but a decision was made to postpone the hearing as a result of Mr Scott’s application to the Commission. It is Ms McDowall’s understanding that Ms Hall made this decision.

Current status of PIP and Disciplinary matter

[151] In early July 2021, Ms McDowall was informed by Mr Cope (after speaking with Mr Scott) that he decided that a PIP was not necessary in order to manage the issue of GES classifications with Mr Scott as Mr Scott had made verbal assurances to Mr Cope that he would complete this task. Mr Cope further told Ms McDowall that he would put the disciplinary process in relation to Mr Scott’s conduct towards Ms Williams on hold pending an outcome in the Commission matter. Mr Cope told Ms McDowall that if Mr Scott did not meet the requirements of his role, or engaged in further inappropriate behaviour towards Ms Williams, that he would reassess the situation and the action to be taken.

Prior performance issues

[152] In Mr Scott’s statement, he stated that he had no previous performance issues and that the PIP arose because he challenged a new process. Ms McDowall denied this was the case. She could see from Vita People’s HR records that Mr Scott has a history of performance issues and has been the subject of two prior PIPs under different managers in the North Queensland TBTC.

[153] The first PIP was implemented in early May 2019 by Mr Scott’s then manager, Mr Rhys Wawryck. This PIP was related to a requirement for Mr Scott to improve his performance in relation to sales/gross profit. This plan was completed in late May 2019 and no disciplinary action was taken. The second PIP was implemented in September 2019 by Mr Scott’s then manager, Mr Stuart McDonald. This PIP was related to a requirement for Mr Scott to improve his performance in relation to sales/gross profit. The plan was completed in November 2019 and no disciplinary action was taken.

[154] I questioned Mr Scott on this issue during the hearing, noting that he had not provided any written evidence on this issue and had been provided an opportunity to rebut any evidence in his reply material. Mr Scott agreed that he had earlier been subject to two PIPs.

[155] Noting that the two earlier PIPs had been issued to him by two men, I questioned Mr Scott; did he have any objection to those PIPs having been issued? He said he did not. I asked Mr Scott; did his violent objection to the PIP having been issued by Ms Williams to him have anything to do with the fact that Ms Williams is a woman? Mr Scott denied this.

Statement of Mr Cope

[156] Mr Cope commenced employment with Vita People on 23 July 2015. Currently, Mr Cope holds the position of Regional General Manager of North and South East Queensland. On 28 June 2021, Mr Cope became responsible for the overall management of the North QLD TBTC where both Mr Scott and Ms Williams work. Since commencing this role, Mr Cope became Ms Williams’ direct manager and Mr Scott’s “2up” manager.

[157] In the week commencing 28 June 2021, Mr Cope attended the North Queensland TBTC and addressed the team in a group setting about the forward outlook for the Centre, their immediate challenges, their obligations under the Telstra Dealer Agreement and about Mr Cope’s expectations regarding their teamwork, individual activity, and his directive about customer service. It was in this meeting where Mr Cope spoke about Vita People’s obligation to classify customers (a Telstra Partnership condition) and about the need to serve all customers (including Mass Market) whilst ensuring that they work cohesively as a team, particularly with scheduling outbound visits to customers to ensure coverage conducive with their duty of care, safety, and continuity of the trade at the Centre.

[158] The following day Mr Cope and Ms Williams met with several team members at the Centre to further introduce himself and to confirm their understanding of the points covered in the team meeting. It was at this time that Mr Cope met with Mr Scott and briefly touched upon the fact that Mr Cope appreciated that there was a legacy grievance, and that Mr Cope did not particularly feel the need to become involved and that it would progress as per the process of these grievances. Mr Scott mentioned that he had been put on a PIP for not making the required classification calls. Mr Cope reiterated their obligations under the Telstra Dealer Agreement and Mr Scott conceded that he understood. Mr Cope also clarified his expectations around Mr Scott’s future conduct and performance, as he did with all other team members on this visit. He made it very clear that Ms Williams was the Business Manager of the North Queensland TBTC and Mr Scott’s direct leader, and should Mr Scott have any issues regarding the requirements of his role or his ability to perform his duties, that he should speak directly to Ms Williams about it and reach out to Mr Cope if there were any concerns.

[159] Since Mr Cope’s visit to the North Queensland TBTC, Mr Cope has heard from Mr Scott on two occasions; once with a suggestion around what success looked like in the Territory Account Manager role – a catalyst for a review and subsequent change to commissions structure. The other was in his annual performance review where Ms Williams and Mr Cope reviewed his performance and his values. It was noted by Mr Scott that he had been “preoccupied” with his legacy issue, but he made an ongoing commitment to their business, his role and to his own activity and performance.

[160] Mr Cope advised that he had several conversations with both Ms Williams and Ms McDowall since assuming responsibility for the North Queensland TBTC regarding the interaction between the Commission’s process in this present application and the disciplinary process that was commenced against Mr Scott prior to Mr Cope taking over responsibility for the centre. Mr Cope was expecting the Commission’s determination of the anti-bullying application to be completed in a relatively short timeframe and therefore decided to hold off progressing the disciplinary matter until that process has been completed. At no stage did Mr Cope inform Mr Scott that he would not be proceeding with the disciplinary process.

[161] Ms Williams has reached out to Mr Cope on several occasions throughout mid-2021 to express a continued frustration with Mr Scott and his conduct towards her. Mr Cope advised that there appears to be ongoing issues which needs to be resolved, following the completion of this matter in the Commission.

Submissions of Vita People and Ms Williams

[162] The position of Vita People and Ms Williams (collectively referred to as the Respondents) is that Mr Scott has not been subject to any unreasonable behaviours by Ms Williams, Mr Parks or any other employee of Vita People. It was submitted that the conduct complained of by Mr Scott is reasonable management action carried out in a reasonable way.

Performance Management Plans

[163] The Respondents disagreed with Mr Scott’s allegation that the implementation of the PIP was unreasonable and that he was unfairly targeted. It was submitted that the PIP was implemented as a result of Ms Williams and Mr Parks providing evidence of several performance concerns to Vita People’s HR team. A summary of the performance concerns was set out in an email from Ms Williams to members of the HR team on 27 April 2021. Relevantly, the email stated as follows:

“Afternoon Tim/Jessica,

Would like some assistance in regards to a team member; Donovan Scott and a discussion/performance meeting in regards to a few things.

•  Conduct/attitude (Vita Values) with the team, customers and myself.

•  Job Requirements; classifying customers, account/portfolio management, sales, performance, KPl’s/targets.

Examples:

1. Recently Donovan has been coming into work late and/or missing scheduled weekly team meetings.

2. Have been receiving complaints around Donovan’s customer service, recently Donovan did not submit a CHOWN and instead asked the customer from his portfolio to send it direct the CHOWN team, this is not in lines with our account management program or business plus, the CHOWN did not get completed for more then a year, the customer recently got in touch with me and I submitted/completed. This is just 1 example of Donovan not following through on customer service requests, even though we have had this discussion before. When I passed this on to Donovan to complete, his response was “Tammy submitted this, he needs to go to the CHOWN team.”

3. Recently Donovan stated “You can submit a CorpSME on an account, to get around 100pts of ID” Implying that a Corpmse means you don’t need to get 100 pts of ID. I immediately pulled Donovan aside and explained the ID process, sent him the links from our knowledge and had a discussion with him as this completely against Telstra’s Fraud policy. However before pulling him aside, he continually challenged the ID process and said that is not how is has been taught to do it, he continually argued with me on the matter until I pulled him out of the room and after having a discussion with him. (Whole team was present).

4. Donovan has also recently been listening to/watching podcasts during work hours and saying that he “is in a meeting” when he is instead watching a live video on Linkden. I have asked Donovan to stop this during work hours (last month during 1:1), however he has continued to listen/watch them as his iPhone came on loud last week as his headphones disconnected as he went to the toilet (Heather Sharp can confirm). I was going to discuss this with him in his 1:1 however he called in sick.

5. MQC targets, each month there is a requirement of contacting at least 100 customers in your portfolio, this is a Telstra requirement and Donovan to date has left it to the last week to complete. At first, he was very reassuring that he was just busy this month however this has continued throughout Q3 and Q4, again we have already discussed this however Donovan is continuing to not complete the GES unassigned and have proper conversations with customers.

6. Donovan is very disruptive during work hours, often commenting on Vita/Telstra’s requirements and degrading them, again we have discussed this multiple times, as well as other Managers in other departments (Matt, Heather, Heath), however he continues to put down the current quarterly commitments, disregarding vita values and his requirements for portfolio management.

7. Donovan’s attitude/response to the team/myself when questioned about something is extremely aggressive and inappropriate. Donovan has now Texted me outside of work on 2 occasions to continue a conversation that was not up for discussion around policy and procedures, I have had to block Donovan on multiple social media platforms and have warned him of his misconduct. As well as, when he has been late to work, I have reached out to him and asked where he is for health and safety reasons and his response “I’ll explain when I see you.”

8. Territory Account Manager Responsibilities; (Donovan does not submit cases for customers and often send them to Telstra tools or links) (discovered last week).”

[164] These above issues were discussed during the hearing. Having heard from both Mr Scott and Mr Williams on these concerns of Ms Williams, I heard the following evidence:

1. Ms Williams stated that for three weeks he was coming into work late. He was missing team meetings and not arriving at work until 9:15am. She stated that he was aggressive towards her when she asked why he was late. Mr Scott stated that he has only been late on three occasions.

2. Mr Scott could have submitted the CHOWN.

3. Mr Scott stated he didn’t argue with Ms Williams regarding the ID requirements. She informed him that it was non-negotiable.

4. Ms Williams considers the videos Mr Scott watches on LinkedIn to be ‘somewhat educational’. Mr Scott said that it is audio only, and he listened to them when he is doing processing work. He would take 1-2 hours to watch a video and say that it was a live feed. He stated it was a checkpoint webinar.

5. This was an agreed fact.

6. Ms Williams stated she had raised with him his disruptive behaviour. Mr Scott stated that he did not think he was being disruptive. Ms Williams stated that she was informing him of his job requirements.

7. Ms Williams stated that she told him that she did not wish to discuss outside of work hours the issue of work. Mr Scott stated that he only did this once.

[165] I informed Ms Williams and Mr Scott that I wished to view the Microsoft Teams chat between them to learn of their tone towards each other when they write on this platform. This was provided to me. Having reviewed, other than a few minor testy moments over five or more months, the written commentary to each other is pleasant and acceptable.

[166] The Respondents submitted that two members of the HR team, being Ms Jessica Hall, HR Advisory Manager and Ms Bec McDowall, reviewed the concerns raised by Ms Williams, which they understood were shared by Mr Parks, and considered that it would reasonable to implement a PIP. According to the Respondents, the PIP was implemented in accordance with Vita People’s Performance and Conduct Management Policy.

[167] The Respondents’ view is that Ms Williams acted in a reasonable manner when meeting with Mr Scott to discuss and provide him with a copy of the PIP. The Respondents highlighted that Mr Scott does not appear to allege that Ms Williams said or did anything that was unreasonable or would amount to bullying conduct in any meeting or discussion with him regarding the PIP. On the contrary, Vita People submitted that it could be argued that Mr Scott’s behaviour towards Ms Williams during meetings associated with the PIP has at times been unreasonable and upsetting to her.

[168] Regarding Mr Scott’s statement that he appears to be aggrieved by what he feels was a lack of prior consultation before implementing the PIP, the Respondents submitted that:

(a) A PIP is not a disciplinary action;

(b) A PIP is a remedial action designed to assist a team member in improving areas of their performance. It is designed to be implemented early on where there is a performance issue (so that it can be more readily rectified);

(c) There is no requirement under Vita People’s Performance and Conduct Management Policy for there to be consultation before implementing a PIP;

(d) In any event, Ms Williams had repeatedly spoken to Mr Scott regarding the key issues with his performance that were ultimately covered off in the PIP.

[169] Regarding Mr Scott’s perception of the GES classification task, the Respondents submitted that:

(a) The GES classification task is a task whereby account managers (such as Mr Scott and Ms Williams) have to classify each of their customers according to a ranking system;

(b) The classification of all customers was a requirement set by Telstra;

(c) Failure to complete the GES classification in the timeframe set by Telstra could result in the cancellation of the licence for the store in which Mr Scott works;

(d) The requirement to complete this task was given to all members of the team (not only in Mr Scott’s store but in all Telstra business stores);

(e) Ms Williams repeatedly tried to explain to Mr Scott the importance of the task and its need for completion (irrespective of Mr Scott’s personal views regarding its utility);

(f) Mr Scott’s repeated and deliberate failure to complete this task as directed was entirely unreasonable given the circumstances.

Portfolio presentation

[170] The Respondents disagreed with Mr Scott’s position that he was aggrieved by the requirement that he sit with Ms Williams to complete a portfolio presentation on 4 May 2021, in circumstances where he had previously completed such presentations unassisted, on the grounds that this conduct was designed to undermine him and make his work environment uncomfortable.

[171] The Respondents noted that Mr Scott does not appear to allege that Ms Williams said or did anything that was unreasonable during the time they spent together working on the presentation. Instead, the Respondents noted that it seems that Mr Scott’s primary objection is that he was required to sit with Ms Williams at all.

[172] In response to Mr Scott’s allegations regarding the portfolio presentation, the Respondents submitted that:

(a) Ms Williams’ conduct in requiring Mr Scott to sit down with her to complete the presentation and her conduct whilst they completed the presentation together was entirely reasonable;

(b) All team members were required to complete a portfolio presentation;

(c) Ms Williams had communicated to all team members that they needed to provide her with a draft of these presentations by 29 April 2021, with the final presentation due on 5 May 2021;

(d) On the morning of 4 May 2021, Ms Williams reminded all team members that their final report was required the following day and any outstanding drafts were due by lunchtime;

(e) At this time Ms Williams had received draft presentations from all team members with the exception of Mr Scott and one other employee;

(f) As a result, Ms Williams emailed Mr Scott and the other employee and said that she would sit down with both of them that afternoon to help them complete their presentation;

(g) The other employee subsequently emailed Ms Williams her presentation. This meant that Mr Scott’s presentation was the only one outstanding;

(h) As such, Ms Williams sat down with Mr Scott to help him complete his presentation. She assisted him by finding multiple reports that he needed for his presentation. At no time did Mr Scott indicate that he felt that this was inappropriate or unreasonable in any way.

Phone call of 17 May 2021

[173] The Respondents referred to Mr Scott’s allegation that the was aggrieved following the phone call he received from Mr Parks on 17 May 2021 wherein Mr Parks attempted to raise with Mr Scott a complaint that Ms Williams had made about Mr Scott’s conduct towards her in a meeting earlier that day.

[174] The Respondents submitted that Mr Parks is no longer employed by Vita People and therefore Vita People is limited in its ability to provide direct evidence regarding the content of the phone call between Mr Parks and Mr Donovan on 17 May 2021.

[175] Despite this, the Respondents submitted that Vita People’s records indicate that:

(a) Mr Scott reported to the phone call to Mr Winter and indicated that he felt Mr Parks’ behaviour during the phone call amounted to bullying;

(b) Mr Winter spoke with both Ms Williams and Mr Parks after he received Mr Scott’s complaint;

(c) It would appear as though Mr Winter’s assessment of the situation was that Mr Parks had acted reasonably during the phone call.

Disciplinary process

[176] The Respondents referred to Mr Scott’s allegation that the implementation of the disciplinary process against him was unreasonable and amounted to bullying by Mr Parks. The Respondents submitted that the decision to commence the disciplinary process was made by Mr Parks and Mr Winter, both of whom are no longer employed by Vita People.

[177] The Respondents submitted that Vita People’s records suggest that the decision to commence the disciplinary process was made as a result of a complaint made by Ms Williams to Mr Winter on 20 May 2021 regarding Mr Scott’s behaviour towards her in relation to the PIP generally and also more particularly during a meeting between her and Mr Scott on 17 May 2021. The Respondents’ view is that it was appropriate to commence a disciplinary process in relation to Mr Scott’s conduct towards Ms Williams.

Reasonable management action

[178] The Respondents submitted that none of the conduct alleged by Mr Scott amounts to unreasonable conduct capable of being categorised as bullying. The conduct was reasonable management action carried out in a reasonable way.

[179] The Respondents referred to the decision of Commissioner Hampton in Ms SB 1 where he observed that 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.”2 The Respondents further cited the following passage from the Commissioner:

“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.”

[180] The Respondents submitted that their actions and conduct associated with the PIP does not amount to bullying as it constitutes reasonable management action carried out in a reasonable way. The Respondents further submitted that:

(a) The decision to implement the PIP in relation to the identified performance issues was a management action;

(b) An objective assessment of the situation supports a conclusion that it was reasonable to put in place a PIP in relation to the issues identified with Mr Scott’s performance;

(c) Management actions do not need to be perfect or ideal to be considered reasonable;

(d) Ms Williams and the relevant members of the HR team acted reasonably in their interactions with Mr Scott regarding the PIP;

(e) At all times, Ms Williams and other relevant persons acted in good faith and in compliance with Vita People’s Performance and Conduct Management Policy.

[181] The Respondents submitted that in relation to Ms Williams’ actions and conduct associated with the portfolio presentation, such conduct does not amount to bullying as it constituted reasonable management action carried out in a reasonable way. The Respondent submitted that Ms Williams’ actions in asking Mr Scott to sit down with her to complete his presentation was management action.

[182] The Respondents contended that an objective assessment of the situation supports a conclusion that it was reasonable for Ms Williams to ask Mr Scott to sit down with her to work on the presentation given he was the only team member who had not submitted their presentation within the required timeframe.

[183] The Respondents submitted that in relation to Mr Parks’ actions and conduct during the phone call on 17 May 2021, the Respondents submitted that:

(a) The making of the call was management action;

(b) It was reasonable for Mr Parks to call Mr Scott to discuss the complaint that Ms Williams had made regarding Mr Scott’s conduct towards her in a meeting earlier that day;

(c) It is unable to confirm or deny whether or not Mr Parks acted reasonably during the course of the phone call;

(d) Even if Mr Parks did not act reasonably during this particular call - a single unreasonable act does not of itself constitute bullying or render management action otherwise unreasonable.

[184] Finally, regarding the Respondents’ actions and conduct associated with the commencement of a disciplinary process against Mr Scott, the Respondents’ position was that such conduct does not amount to bullying as it constitutes reasonable management action carried out in a reasonable way.

[185] The Respondents contended that the decision to commence a disciplinary process against Mr Scott as a result of his conduct towards Mr Williams was a management action. An objective assessment of the situation supports a conclusion that it was reasonable to commence such a process in light of the conduct complained of by Ms Williams. The Respondents submitted that in implementing the disciplinary process Mr Parks and Mr Winter acted in good faith and in compliance with Vita People’s Performance and Conduct Management Policy.

Risk of future bullying

[186] Regarding the risk of future bullying the Respondents noted that Mr Parks is no longer employed by Vita People. Therefore, to the extent that the Commission is satisfied Mr Parks engaged in bullying conduct towards Mr Scott, there is no risk of that conduct continuing.

[187] Further, the Respondents noted that the PIP is no longer in place. Instead, Mr Scott has provided verbal assurances that he will complete the GES classification task as required (and for the quarter July – September 2021 has been doing so).

[188] Finally, the Respondents submitted that the disciplinary process in relation to Mr Scott’s conduct towards Ms Williams on 17 May 2021 (and prior) has also been put on hold pending the resolution of this matter. It is Vita People and Mr Todd’s intention to recommence the process as soon as this matter is finalised.

Consideration

GES unassigned

[189] Mr Scott’s consternation regarding the reasonable and lawful direction to complete a certain number of GES unassigned tasks each month is extraordinarily immature. Ms Williams didn’t create or determine the numbers that all Account Managers needed to achieve; Vita People determined it as a business, based on its client’s requirements. It was a Telstra requirement that Vita People contact 3,500 of its customers by 30 June 2021 and the remaining 1,500 by 30 September 2021. With such a significant task to perform, it is understandable that monthly targets were set for each account manager. Everybody had their fair share of calls to make, including Ms Williams.

[190] The petulance of Mr Scott in not wanting to do this task because he didn’t think it valuable underscores the disruptive and rude behaviour that I consider he has demonstrated towards Ms Williams.

[191] In the first three months of 2021, Mr Scott was on course to significantly fail a requirement that had been set for him and his peers. He achieved 45/60 in January 2021, but then performed only 28 out of the required 90 calls in February 2021. While he had complete success in March 2021, by the last week in April 2021, it was clear that he was not going to achieve the requirements of his role.

[192] Instead of spreading out the task over the month, as tedious and as irrelevant as he considered it to be, he left it to the last days of April 2021 to make up the shortfall which was impossible to do. He achieved only 15 from 100 calls he was required to make in April 2021. He was suitably and responsibly informed by Ms Williams of his obligation. He then went on a tedious, aggressive and unnecessary frolic for several months, arguing over the requirement to fulfil the task. The effect of his disputation of having to perform this task, a task performed satisfactorily by his peers, is that he whinged and moaned about it when he had no right to do so.

[193] No employee will ever like every single task they are required to perform. There are many tasks that employees perform which they consider to be irrelevant, unnecessary, unpleasant, of no utility or boring. Reasonable employers will try and limit the amount of unpleasant tasks an employee is required to perform, but in life, these tasks need to be performed by somebody.

[194] At the time, Telstra required Vita People to perform these tasks, and Vita People paid its employees to perform these tasks. Mr Scott was not singled out to perform this particular task, however, he carried on as though he was. Where he relied on the fact that his colleague, Harry was not issued with a PIP over this issue, I accept Ms Williams’ evidence that Harry was not ultimately required to meet relevant targets due to his geography and a lack of colleagues.

[195] Ms Williams’ frustration with Mr Scott’s disputation of the GES unassigned calls was completely reasonable and understandable. Mr Scott’s continued reluctance to perform this required task is evidenced when his May, June and July 2021 results are considered – achieving only 32%, 18% and 27% respectively.

[196] I consider that from April 2021, Mr Scott considered that because he was disputing the task, and informing his management how stupid and idiotic he considered the task to be, he would be excused from having to perform it. His colleagues, were, on Ms Williams’ evidence, meeting their full quota. Mr Scott, it seems to me, relished being the ‘squeaky wheel’.

[197] I am not satisfied that in respect of requiring Mr Scott to meet the required GES unassigned classifications, Ms Williams acted unreasonably towards Mr Scott. I am further satisfied that Ms Williams’ conduct was reasonable management action carried out in a reasonable manner. Ms Williams had the full support of her managers, the HR team and her employer. For Ms Williams to have been acting unreasonably towards Mr Scott, all of these managers would have had to have been acting unreasonably towards Mr Scott, which they were not.

Performance Improvement Plan

[198] Mr Scott certainly made a very big fuss about having been placed on a PIP in late April 2021. His evidence to the Commission is that he had never been involved in a disciplinary matter of this magnitude before.

[199] He had earlier been placed on a PIP by two male managers and successfully worked his way through those. He knew what was required of him; focus on what was specifically required within the PIP and work through it so that a PIP is then withdrawn. In April 2021 this was not his first experience being placed on a PIP.

[200] Ms Williams had been trying to address with Mr Scott his failure to meet the GES unassigned classifications throughout April 2021. He decided he knew better and would not accept Ms Williams’ advice, coaxing and ultimately her decision to place him on PIP. One of his first reactions was that he understood he needed to have had three consecutive months of underperformance to be placed on a PIP. Even though there is no such requirement within the policy, Mr Scott had failed to meet the requirements of him in January, February and April 2021. If that’s what he thought was a threshold for the generation of a PIP, he had met the threshold, albeit having performed satisfactorily in March 2021. There was, of course, no threshold, but he had certainly been underperforming in a particular task for three of the past four months.

[201] When he was placed on a PIP, requiring particular effort to be made on a very particular task, he thumbed his nose at it, with incredibly low percentages achieved for the next three months. Having made a complete shambles of his figures for April 2021, he was tasked with making five phone calls per day in order to meet the goal of 100 calls in the month. He simply could not be trusted to meet this requirement without breaking it up into daily tasks. He had demonstrated this in the last few days of April 2021.

[202] Ms Williams was correct to place Mr Scott on a PIP. She did so with full authority of management. She did not need his consent to do so, nor his agreement as to what was within the PIP. I accept that there was some discussion once the first version was put to him and some minor refinement of the PIP. It did not require Mr Scott’s consent to settle the PIP. I consider Mr Scott’s objection to the process adopted by Ms Williams, with the support of HR, to be unreasonable and not supported by the policy.

[203] Even when he knew what was required of him in May 2021, and by 19 May 2021 had completed only 19 calls, Mr Scott rudely informed Ms Williams that he didn’t need to be reminded and he considered that she was micro-managing him. While he said that he could manage it himself, he clearly could not. He made only 32% of the calls required of him in May 2021 despite his sarcastic email to Ms Williams.

[204] Having observed Mr Scott throughout the video hearing and having regard to all of the material before me, I reasonably conclude that Mr Scott would have been unlikely to have addressed his manager in such a condescending and rude manner if his manager was male. I reasonably conclude that Mr Scott was disrespectful to Ms Williams because she is female, and I conclude that he has, at times, been blatantly misogynistic towards her.

[205] I consider that Mr Scott was aggrieved to have been placed on a PIP because he considered that he needed to somewhat agree with the measurements and the particular areas of focus. The employer’s policy does not require this.

[206] Mr Scott was further advised that he wasn’t to watch or listen to podcasts or videos for the duration of the PIP, which was only one month in length, unless it was specific to Vita People or Telstra. I consider this to be a reasonable and lawful direction given Mr Scott had failed to meet the other requirements of him. His disputation included others being permitted to listen to various things while they performed administrative work. Mr Scott should have understood that, while ever an employee is performing the work required of them, they might be permitted other privileges. What he considered to be educational and important does not equate to a right to listen to this material during work time.

[207] I am satisfied that the prohibition on listening to such material was a lawful and reasonable direction and appropriate to be within the PIP issued to Mr Scott. It is akin, if you like, to not being able to eat dessert until one finishes their meal. If Mr Scott was meeting all of his required tasks, I cannot fathom Vita People holding any concern with him spending administrative time listening to various podcasts. He was not, however, coming close to meeting all of the required tasks.

[208] I accept Ms McDowall’s evidence that Vita People’s Managing Performance & Conduct Policy differentiates between remedial action and disciplinary action. It provides a very clear distinction. I am satisfied that the PIP that Mr Scott was placed on was remedial action and not disciplinary action, and that it was appropriate to do so in the circumstances.

[209] I am not satisfied that in placing Mr Scott on a PIP, including the manner in which she did, Ms Williams acted unreasonably towards Mr Scott. I am further satisfied that Ms Williams’ conduct was reasonable management action carried out in a reasonable manner. Ms Williams had the full support of her managers, the HR team and her employer. Again, if Ms Williams had been acting unreasonably towards Mr Scott, then all of these managers were acting unreasonably towards Mr Scott, which they were not.

Strategic portfolio plan

[210] Mr Scott was alone in not having provided to Ms Williams his draft strategic portfolio plan. Where he considered that his colleague, Ms Dougall had similarly not provided her draft, I was provided evidence that Ms Dougall did, in fact, provide to Ms Williams her draft on the afternoon of 4 May 2021 prior to the planned 3:00pm meeting.

[211] On the evidence before the Commission, it is clear that Ms Williams provided appropriate assistance to Mr Scott to improve upon his strategic portfolio plan when she met with him on 4 May 2021. If Ms Dougall hadn’t provided her draft when she did, she would have been in the meeting too. This is clear from the invitation sent by Ms Williams to both employees.

[212] Mr Scott’s suggestion that he was made to feel like a child in detention and Ms Williams was doing this to assert some form of control over him is an extraordinary claim which I do not accept. Disturbingly, in his evidence he suggested that Ms Williams is not his mother or teacher, and if he hadn’t completed the activity, he should have been free to face the consequences of his inaction.

[213] On this issue, I consider that Mr Scott has a significant insecurity regarding Ms Williams’ management of him. She assisted him to meet his obligation. She helped him ‘get over the line’. He has now, without justification, turned it into an alleged power play by Ms Williams.

[214] I am not satisfied that Ms Williams acted unreasonably towards Mr Scott when she required him to meet with her on 4 May 2021 to work on his strategic portfolio plan. I am further satisfied that Ms Williams’ conduct was reasonable management action carried out in a reasonable manner.

Inappropriate conduct towards Ms Williams

[215] Having reviewed the chat messages between Mr Scott and Ms Williams, I consider that Ms Williams has overstated any concerns she had with Mr Scott’s written communication within them. There are very few instances where the written conversation was less than pleasant or not professional. Their chat dialogue is largely professional and often friendly. Having reviewed undated text messages between the two, at one stage their text messages were playful and fun, including inviting each other to drinks and to meet each other’s friends.

[216] I do consider, however, that Mr Scott has for many months been very disrespectful towards Ms Williams by continually verbally referring to her as dude, bro or man. I accept that Ms Williams repeatedly informed him of her displeasure at being referred to in masculine terms. I am of the view that Mr Scott has deliberately continued to use these references towards Ms Williams. I accept Ms Williams’ evidence that he was continuing to use these terms towards her right up until the date of the hearing in September 2021.

[217] Mr Scott’s conduct towards Ms Williams when she informed him on 29 April 2021 that he was to be placed on a PIP was unacceptable. I accept that he said to her, “Dude, you’re wrong, this is bullshit”, and informed her that she was ruining his career. Further, I accept that he told her she was a bad person and a bad manager.

[218] On 6 May 2021, Mr Scott wrote:

•  “The PIP and application and entire circumstances around it felt targeted to me – is this really for improvement of are you trying to establish some form of dominance? This is the reason why I asked for prior consultation because in any business setting team members should be able to work collaboratively on their improvement rather than be handed with a document with a list of ‘to do’s’”

•  “The issue of a PIP with trying to move within Vitagroup especially after your advice yesterday. I feel it might hinder future opportunity and if it can be handed to a team member flippantly. It means that any team leader with a vendetta could use it as a weapon in a professional context.”

[219] I am of the view that Mr Scott was attempting to undermine Ms Williams’ authority when he sent this to her and to Mr Parks and Mr Winter. The suggestion that she was trying to dominate him betrays a man concerned that his manager is female, in a superior position. Mr Scott ought to have been fully cognisant of his relevant failures at this point in time. He was, in my view, attempting to cause trouble for Ms Williams, rather than being legitimately aggrieved.

[220] His concern that having been issued a PIP might affect his future career did not seem to cause him any issue when he was earlier issued with and satisfied the requirements of two PIPs. He knew there was a fulfilling career available to him after having been issued a PIP.

[221] I accept Ms Williams’ evidence that she considered an email from Mr Scott to various managers, suggesting that there are some instances of her relevant experience which might be “out of [her] range” to be condescending. I consider that Mr Scott felt he had a free platform, including the HR team and other managers to take cheap shots at Ms Williams.

[222] I am satisfied that Ms Williams appropriately reported Mr Scott’s conduct to the HR team and it is something that Vita People says that it wishes to address with Mr Scott after this application has been determined. I informed Vita People that its letter to Mr Scott of 4 June 2021 did not, in my view, provide sufficient specificity of the allegation of improper conduct towards Ms Williams. He would, through these proceedings now be aware of all of the allegations. If Vita People does wish to continue with a disciplinary process with Mr Scott, it should detail in any letter to him the specific allegations. I would also caution Vita People against calling disciplinary meetings “hearings”.

[223] I would implore Mr Scott to reflect on what I have said in this decision and offer to Ms Williams a suitable apology for the manner in which he has spoken inappropriately towards her. Such an apology, if made and if genuine, and supported by conduct, might satisfy Vita People not to continue a disciplinary process.

Conclusion

[224] In order to make final orders in a bullying application, there are two requirements under s.789FF(b) of the Act. The Commission must first find that Mr Scott has been bullied at work by an individual or a group of individuals and secondly that there is a risk that Mr Scott will continue to be bullied at work by the individual or group concerned.

[225] Once these two requirements have been satisfied, s.789FF confers on the Commission a broad, discretionary power to make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent an employee from being bullied at work.

[226] There is no dispute that the employer is a constitutionally-covered business, and it is also accepted by the parties in this case that the alleged conduct, if it occurred, took place whilst Mr Scott was at work.

[227] The application of s.789FD has been discussed in various decisions of the Commission where it has been held that the terms of s.789FD are to be applied objectively and that s.789FD(2) ‘reasonable management action carried out in a reasonable manner’ is not so much an “exclusion” but a qualification which reinforces that bullying conduct must of itself be unreasonable.³ It also emphasises the right of management to take reasonable management action in the workplace.⁴

[228] The issues in dispute in this case are therefore whether Ms Williams has repeatedly behaved unreasonably towards Mr Scott and whether any such behaviour has created a risk to his health and safety. In considering whether there has been repeated unreasonable behaviour the Commission needs to consider whether any of the conduct was reasonable management action taken in a reasonable manner.

[229] In Mac v Bank of Queensland Ltd,⁵ Hatcher VP provided the following examples of conduct “which one might expect to find in a course of repeated unreasonable behaviour that constituted bullying at work” as including:

“… 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.”6

[230] In Edwards v E S Trading Co (Discounts) Pty Ltd (t/as E & S Kitchen, Bathroom Laundry),⁷ an employee’s genuinely held belief that she was being bullied at work was insufficient to enliven the Commission’s jurisdiction. The conduct must not only be perceived as being bullying, but that belief “must be reasonable in the sense that it is able to be supported or justified on an objective basis.”

[231] In Ms SB, Hampton C observed that:

“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”8 

[232] The Commissioner also relevantly stated:⁹

“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.”

[233] Having regard to the non-exhaustive list of examples of conduct at [229], on the evidence before me, I am not satisfied that Ms Williams has behaved unreasonably towards Mr Scott. Further, I am not satisfied that if she did on one occasion, it is behaviour which has been repeatedly unreasonable.

[234] The Commission can only act when its jurisdiction is invoked, and even then, there is a discretion whether to issue orders to prevent the continuation of any bullying.

[235] The evidence has not established, to my satisfaction, that Ms Williams has acted unreasonably towards Mr Scott. Having regard to all the circumstances, I am not satisfied that Mr Scott has been bullied by Ms Williams at work. If it were necessary to do so, I would find that all of Ms Williams’ conduct is reasonable management action carried out in a reasonable manner.

[236] In reaching that conclusion, it has not been necessary for me to determine whether the alleged instances of bullying behaviour created a risk to Mr Scott’s health and safety. As an aside, I recommend to the parties that Vita People’s employee assistance program be made available to Mr Scott to allow him to explore opportunities to improve his interpersonal skills. He has been employed by Vita People for a reasonable period of time and appears to me to be knowledgeable in his chosen career.

[237] Because I am not satisfied that Mr Scott was bullied at work, as alleged, there is no power to make the orders sought, and the application is dismissed. An order giving effect to this will be issued in conjunction with this decision.

COMMISSIONER

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 1   [2014] FWC 2104 at [49].

 2   Ibid at [51].

3 Mac v Bank of Queensland Ltd [2015] FWC 774 at [95].

4 GC [2015] FWC 6988 at [47], [52] and Amie Mac v Bank of Queensland Limited and others [2015] FWC 744.at [48], [88].

5 [2015] FWC 744.

6 Ibid at [99].

7  [2016] FWC 8223 at [61].

8  [2014] FWC 2104 at [49].

9 Ibid at [51].