AB

[2015] FWC 3353

[2015] FWC 3353

FAIR WORK COMMISSION

DECISION

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

AB
(AB2014/1525)

COMMISSIONER LEE MELBOURNE, 4 JUNE 2015

Application for an FWC order to stop bullying - reasonable management action - application dismissed.

Background and case outline

[1] Ms AB (the Applicant) has made an application under s.789FC of the Fair Work Act 2009 (the FW Act) for an order to stop bullying conduct she alleges has taken place, and may in the future take place, within her workplace.

[2] The Applicant is a case worker consultant with The Salvation Army (Vic) Property Trust as Trustee for The Salvation Army (Vic) Social Work trading as The Salvation Army Employment Plus (hereafter referred to as the Employer). The bullying is alleged to have taken place and is alleged to be continuing.

[3] The bullying complaint is directed at the Employer, and two persons named in the application, Mr AC and Ms AD.

The proceedings

[4] Commissioner Johns was initially allocated this matter. Some efforts were made by the Commissioner to resolve the issues between the parties which proved to be unsuccessful. The matter was then allocated to me for arbitration.

[5] Directions were issued on 27 February 2015 for the filing of material. The Directions indicated that the matter would be listed for hearing before me on 13 April 2015 in Melbourne.

[6] The Applicant represented herself at the hearing. Mr C Broadbent sought permission to appear for the Employer and the two persons named. After considering the arguments put forward by Mr Broadbent, and the views of the Applicant, I determined to grant permission to appear to Mr Broadbent pursuant to section 596(2)(a) of the Act, as I was satisfied that representation would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

[7] At the commencement of the proceedings having considered the views of the Applicant and Mr Broadbent on behalf of the Employer and the persons named, I determined that the transcript of the proceedings would be marked confidential. I also determined that the names of the individual persons identified as allegedly bullying the Applicant, and the name of the Applicant herself would remain confidential. I determined that the name of the Employer, the first respondent, would remain public.

[8] Mr Broadbent for the Employer and the persons named in the application noted at the hearing that it was not sought that witness names be marked confidential. Given the circumstances however, and the likely ability to identify persons through circumstance, I have determined to refer to witnesses who gave evidence by reference to their marked statements. I have also determined to refrain from identifying the location of the workplace of the Applicant.

[9] The Employer has raised a jurisdictional objection to the application. That is, that the actions of the Employer and the persons named, can be characterised as reasonable management action undertaken in a reasonable manner.

The evidence

[10] The Applicant is an employment consultant. She has been employed in that role for approximately 9 years. Her role is to undertake a number of activities to assist job seekers in their quest to find employment. According to the position description developed in October 2010, these activities to assist job seekers include such things as; helping to identify vacancies; motivation, mentoring and coaching. There is an extensive range of claims made by the Applicant that relate to the bullying allegations. It is convenient to set these out and deal with the evidence in respect to a number of themes and issues that emerged from the evidence.

Servicing “Stream 4” job seekers.

[11] The 2010 position description sets out various responsibilities of the Applicant’s role including case management of “stream 1” to “stream 4” job seekers. While the 2010 job description has been recently updated, the provisions dealing with “streams” did not change.

[12] Clients of the employment services are classified by Centrelink into various streams. Evidence as to how the streams are differentiated was set out by the Applicant in transcript;

“...So each client that comes in has an assessment through the Centrelink system. Stream 4 may be somebody who is recently out of prison and they have drug issues, mental health issues, schizophrenia, they are considered not job-ready. So we have to address their barriers by putting them into various programs and then determine when we believe they’re ready to be placed into work.

...The onus of that rests on us. So I don’t really want responsibility for putting somebody into a job and then somebody gets hurt either. It goes against the grain of what I believe in. Stream 1 are generally job-ready, they are considered capable of finding work with a bit of guidance and a bit of support and that was what I was doing for those nine years. Stream 2s and stream 3s, they may be people who don’t - or stream 2 could be just somebody who doesn’t have a lot of education, they need a bit more help, and stream 3 is somewhere between that 2 and 4, so they could have barriers but they’re considered easier to address than a stream 4.

...That’s not saying that every client might not have barriers. I mean, sometimes we have people come in as stream 1 and then we do an assessment and they’re found to have a lot more, but generally stream 4, they’ve got barriers and we’re aware of them.” 1

[13] The Applicant did not dispute, under cross examination, that “stream 4” clients could include a range of profiles including single parents or persons who are homeless as examples. 2

[14] The Applicant’s evidence is that since midway through 2014 there has been significant change to her role as an employment consultant. The key issue is that, for the first eight to nine years of her employment, the Applicant was only servicing “stream 1” clients. However, in mid 2014, all staff was advised verbally that all consultants would now have a rainbow caseload (that is, they would all service “stream 1-4” clients).

[15] It is not in dispute that prior to this time, the Applicant had generally only serviced “stream 1” clients, notwithstanding that her position description is and always was clear that she can be required to service all four streams.

[16] The reasons that the Applicant was specializing in “stream 1” was not clear. However, it is clear that requiring her to service all clients, while consistent with the terms of her position description, was a change from what she had been doing for a considerable period of time.

[17] The Applicant takes a particular objection to servicing “stream 4” clients as she gave evidence that she doesn’t feel safe dealing with this stream of clients. It was generally accepted in the evidence that “stream 4” clients are more challenging to place than “stream 1” clients, however, the Applicant accepted that her job description required her to service all streams. 3

[18] Importantly, witness B7 gave evidence that every employment consultant across the country works to the same position description which provides for a “rainbow caseload”. In that sense there was nothing unique about the circumstances of the Applicant with the notable exception that the Employer had chosen not to require her to service all streams in the past.

[19] In that context, a requirement to have an employee to work in accordance with their position description absent any other issue arising could hardly be said to constitute bullying behaviour.

Workload management

[20] It was clear from the evidence of the witnesses that there was an acknowledgement that the organisation had not been managing staff efficiently and that the organisation set about improving staff management and improving efficiency. The introduction of Mr AC and the new human resources team to the organisation was a key part of this renewed focus.

Double Booking

[21] There is now in place a system of “double booking” clients. The Applicant claimed that this leads to clients having to wait, when both clients turn up. In turn, clients become dissatisfied leading to complaints from clients for which the consultants are accountable.

[22] Mr AC explained the double booking system was to take account of the fact that job seeker attendance rates are approximately 50% and therefore the decision was taken to allow for double bookings to allow for the high level of non attendance and improve the utilisation of staff.

[23] The evidence from the Employer was to the effect that double booking did not double the case load but rather minimised the amount of time during the day that consultants were not seeing clients. Witness B1 and Mr AC gave evidence that when group bookings occur, there would be enough consultants, including the manager to accommodate all of the clients. 4 I note that witness B7 seemed to think that the double booking system only occurred at Christmas5 but Mr AC was clear that double bookings were now an ongoing part of the way the business operates. Considering the evidence on workload as a whole, I am not satisfied that the system of double bookings led to an unreasonable workload impact on the Applicant.

Staff turnover and vacancies

[24] There has been a high level of staff turnover and vacancies in the organisation since 2014 and it is claimed that this has lead to additional pressure on Applicant. In fact the Applicant is now the only consultant remaining from those who worked at the premises in mid 2014.

[25] There are approximately four employment consultants at the site where the Applicant works. 6 I note that the Employer in their closing submissions conceded that there had been a reasonably high turnover of staff. I am satisfied this would have placed some additional pressures on the Applicant to adequately perform in her role. However, I was satisfied with the evidence of witness B7 that the staff were replaced in a reasonably swift manner.7

[26] I note that Ms AD claimed that she had no concerns about such a dramatic level of turnover. 8 Her evidence was contradicted somewhat by witness B7 who gave the following evidence when asked if she was concerned about the level of staff turnover:

“It is a concern Commissioner. It has been a consequence of implementing a high performance culture...The organisation was in a position where it was losing money. The Greater Salvation Army was actually taking money out of its social programs to support Employment Plus and it was made very clear that could not go on, so a brand new HR Team was brought in to implement a high performance culture to bring people up to speed, to assist them wherever possible, but there were a lot of staff who opted out of that process, long term staff who...had never been held to account. They may have had KPI’s but had never actually been held to account for those KPI’s, so they may have missed KPI’s for 12 months in a row and nobody had ever had a conversation with them” 9

[27] Witness B7 stated that this level of turnover was not unique to the Applicant’s work site and had been a characteristic of many sites around the country. 10

[28] The evidence of witness B7 on this point provided an insight into the rapidly changing work environment faced by the Applicant. She was forced to adjust to a more active management after a lengthy period of the organisation managing her and her colleagues very poorly. However, while this was a change that had a personal impact on the Applicant, particularly with the high turnover, there is no evidence that the approach taken amounted to bullying behaviour directed at the Applicant, particularly given the evidence of the timely replacement of vacancies in the organisation.

Other workload issues:

[29] The amount of time allotted to initial appointments has been reduced from the amount that was allocated at the commencement of the JSDM (Job Service Delivery Model) system. Witness B1 confirmed that initial appointments were one hour but that had been reduced to 30 minutes. However, there was no evidence that this had a detrimental impact on the Applicant’s workload.

[30] The Applicant gave evidence that it was unreasonable that she is required to participate in the “Job Club” event at 9.30 am in the morning as that start time does not allow her time to check and respond to emails. Witness B4 gave evidence about the purpose of the “Job Club” 11. The Applicant’s involvement in the “Job Club” was not onerous in my view nor the requirement the Applicant participate in it at 9.30am.

[31] The Applicant claims that other duties normally undertaken by the national body of the Salvation Army are now to be undertaken by the employment consultants and that staff are now required to produce daily and weekly reports for management. Mr AC gave evidence as to the need for the reports. The Applicant agreed that
Mr AC had shown her where to access the information to produce the reports. On the evidence it seemed that while the reporting requirements were, from the Applicant’s perspective, new and unnecessary, the fact that an agency such as the Employer is required to produce reports is not remarkable and the requirement for the Applicant to contribute to them was reasonable.

[32] There were also three witness statements submitted by the Applicant, which were provided from former workers at the Applicant’s work site. These witnesses did not attend the hearing. I admitted the statements but noted the objection from Mr Broadbent on behalf of the Employer and the persons named, who stated that he wanted to be able to cross examine the witnesses. Generally the witness statements refer to experience with increased workload and associated stress.

[33] However, I note that one of the witnesses sent a letter to Mr AC when she resigned stating that she enjoyed her time in the organisation. 12 Generally, the three statements provided personal perspectives from former employees as to the work environment during their time with the Employer. They support the claims of the Applicant that there was an increase in workload intensity during 2014. However, they do not provide evidence that supports the claims of bullying behaviour directed at the Applicant. In any case, given the witnesses did not appear to attest to the evidence or be cross examined, it was not possible to place any weight on the evidence provided.

[34] Witness B1 gave evidence that the JSDM was implemented in early 2014 following a decline in organisational performance and that the ongoing viability of the Employer was being considered. The JSDM led to all consultants undergoing training and witness B1 stated that;

“The functions and role of Employment consultants has not changed. but the efficiency with which they undertake their role and conduct their function has been improved by this model.” 13

[35] In summary, the evidence is that the Applicant’s workload is consistent, in terms of the number of clients, with her colleagues in the organisation. The Applicant claimed that she had in excess of 100 clients on her caseload. 14 Witness B7 gave evidence that the Applicant had a caseload of 65 in January but that as it varies it may be at a different level now.15 Mr AC gave evidence that there is an average of 120 cases for full time staff and that the Applicant currently had approximately 75 cases.16

[36] As the Applicant is part time working as a 0.6 and full timers have 120 clients, the applicant has proportionately the same caseload. I am satisfied on the evidence that the case load of the Applicant would not appear to be unreasonable with reference to the case loads of her colleagues. I do not accept that the Applicant had a case load of 100.

[37] The Applicant’s pattern of work was 9.30am to 5.00pm and she agreed when questioned that generally she was not requested to stay back at work to complete tasks. In fact, Mr AC was clear that he insisted that staff leave work on time to allow for work/life balance and that evidence was not contradicted. The Applicant confirmed that she was not criticised for not completing certain tasks prior to finishing work for the day. 17 The Applicant confirmed that she always had a lunch break of 45 minutes usually taken at 1pm and other breaks at times to suit the workload.18

Performance Management

[38] The Applicant submits that she has been unreasonably performance managed and micro managed by Mr AC and been required to attend one on one meetings with him with no support person present. Mr. AC gave evidence that the Applicant had not met all the essential requirements of her performance criteria and was therefore marked as “partially met expectations”. A copy of her performance plan was in evidence and it shows that she was assessed as “strongly performing” in some areas, “meeting expectations” in others and “not meeting expectations” in others, notably related to the failure to service “stream 4” clients.

[39] The Applicant was concerned that Mr AC had unnecessarily criticised her during performance appraisal meetings. This particularly related to Mr AC marking her down on her performance regarding “respect” and “values”, associated with her concerns about servicing “stream 4” clients. However, witness B7s evidence is that the performance appraisal was conducted the same way for the Applicant as it was for other staff and the fact the Applicant is unhappy with the appraisal does not invalidate it.

[40] The Applicant was assessed in the recent performance assessment as achieving 57 out of a possible 100. The evidence of witness B7 was that the average score is 62 out of 100 and it would be difficult for an employment consultant to obtain more than 75 out of 100. 19

[41] It was clear from the Applicant’s evidence that she was deeply distressed that her refusal to service “stream 4” clients was the basis for the finding that she was not meeting the values of the organisation. However, Mr AC gave evidence that, to the extent that the Applicant was suggesting that all “stream 4” job seekers were difficult or violent would be judgemental towards that cohort of job seekers 20, and that this was the basis for the finding that the Applicant did not meet the values requirements of the Employer. Essentially, Mr AC was concerned that the Applicant had taken a view that all “stream 4” clients were difficult and violent. Considering the evidence on this issue, I am satisfied that, given it was required by the position description that the Applicant service this stream of clients, it is not unreasonable that her refusal to do so become a matter of note in her performance appraisal.

[42] In short, there has been an historical failure of the organisation in the past to assess individual performance. The introduction of individual performance management has been a significant change for the Applicant, but on the evidence, the manner in which it has been introduced or administered does not appear to be unreasonable.

Occupational Health and Safety

[43] The Applicant claims that there is a decline in occupational health and safety at the workplace. There are a number of aspects to this claim which to some extent are inter-related.

[44] In mid 2014 there was a change in the system whereby clients are now notified by SMS that their Centrelink payments have been affected as a result of missing an appointment with an employment consultant. The Applicant asserts that there has been no assessment of the risks associated with this change as the Applicant feels that clients will become irate with the employment consultants when their payments are affected. There is also a concern from the Applicant with the removal of high counters with glass screens separating staff from clients and the removal of reception staff meaning clients have direct access to staff and are directly visible. These changes the Applicant feels do not account for the increase in drug use amongst clients including “ice”.

[45] A lot of attention in the evidence was directed to an incident in 2012, which the Applicant clearly found distressing where a client of another job referral service attended the work site and engaged in violent and threatening behaviour. There was no dispute on the evidence that this event occurred. However, it was established that the person who gave cause for concern was not a “stream 4” job seeker of the Employer but a person who had been incorrectly referred by another agency. 21 There was no evidence before me that anyone was harmed during the incident. Witness B4 gave evidence that she was only aware of that one incident giving rise to a health and safety concern.

[46] However, the Applicant also made reference to another incident where a client made threats over the phone to her and other staff. 22 However, while it was clear that the Applicant found this incident distressing, the incident does not support the claim that working with “stream 4” clients is unsafe.

[47] As part of the organisations response to the Applicant’s concerns about working with “stream 4” clients, she was offered further training on managing conflict. The evidence was that she performed outstandingly well in the training provided on conflict management. 23

[48] Further, witness B7 gave evidence that a recent Worksafe inspection had been performed and that the inspection did not highlight any issues with safety of staff at the workplace. 24

[49] Considering all of the evidence, I am not satisfied that there is a risk to the health and safety of the Applicant as a result of her being required to work with “stream 4” clients or for any other reason.

Unreasonable behaviour of AC and or others

[50] There are associated concerns from the Applicant relating to comments that Mr. AC allegedly made to her and other concerns about the behaviour of Mr AC.

[51] The Applicant claims that Mr AC made reference to her status as a single mother when discussing the profile of clients in “stream 4”. 25 Mr AC claimed in his evidence that he had no recollection of making the reference to single mothers at all.

[52] I did not find the claim of Mr AC that he made no mention of single mothers whatsoever credible. However, I do accept his evidence that he didn’t know the Applicant was a single mother as he had no knowledge of the Applicant before starting at the organisation and the conversation occurred on only the second day he worked with her. 26 I am satisfied Mr AC made the reference to single mothers but that it wasn’t directed at the Applicant’s personal circumstances. It was for the purpose of providing an example of the types of person who could end up in “stream 4”. While in the circumstances it proved the example of single mothers was a poor choice, I am not satisfied he selected that example for the purpose of bullying the Applicant.

[53] The Applicant was also concerned about references Mr AC made, when discussing “stream 4” jobseekers, to an incident he experienced as a young man where a job seeker allegedly held some scissors to his throat. Mr AC characterised this conversation as an attempt to demonstrate the infrequency of clients becoming violent as it was the only incident in his career working with various job seekers. 27 The Applicant in her evidence did not appreciate the anecdote and felt rather that it reflected a dismissive approach to her concerns on the part of Mr AC.28

[54] Having considered the evidence on this matter, while I think that the attempt of Mr AC to allay the concerns of the Applicant was misguided, it was a genuine attempt by him to try to have a member of his staff undertake the role he was asking her to undertake. In that context, it was not bullying behaviour. In any case, I was satisfied on the evidence that Mr AC was circumspect about the incident and I think unlikely to rely on that anecdote or similar ones for “coaching purposes” in the future.

[55] The Applicant made reference to a single occasion when Mr AC requested to her to pre-date a document for Centrelink as the deadline for it to be submitted had passed and it was not possible to get the system to accept the form unless the date was changed. The Applicant was not comfortable with changing the date and told Mr AC of her concern. 29 Mr AC gave evidence that she was not criticised for what was her failure to lodge the application on time but wanted for his own reasons to submit the claim to Centrelink to assist them with their information gathering. Indeed the Applicant’s evidence was that Mr AC, while asking her to put in the wrong date, asked her to provide an explanation of what had occurred in the text of the document. Overall, I was satisfied that the actions of MR AC were directed to “getting around” the technology to lodge the form rather than intent to deceive Centerlink. There was no particular benefit to Mr AC other than his desire to keep Centrelink informed. His request in that context was not bullying behaviour.

[56] As a result of a “clean desk” policy promoted by the General Manager of Operations, the Applicant’s personal items were packed into a box by other staff, while the Applicant was on leave. 30 The Applicant felt humiliated by this incident, as she was unaware of why her items were packed away when she returned from leave. The Applicant gave evidence that she thought she was being required to change desks, and it was not until late in the day that she was advised why her things had been packed up.

[57] Mr AC’s evidence on this was that it was a mistake on his part that he did not inform the Applicant why her things were packed up and that his failure to do so was not deliberate. 31 I accept the evidence of Mr AC that it was not done on purpose, but the episode reflects poorly on the management of Mr AC. In an office of only four staff, it is unlikely that Mr AC was unaware that the Applicant was upset and confused by the incident and it could have been defused with a direct and clear conversation. Mr AC did not dispute that he walked past the Applicant six or seven times in the day. However, I accept evidence of Mr AC that he did not set out to humiliate the Applicant. Moreover, I am satisfied that this type of incident is unlikely to be repeated.

[58] As to the approach of Mr AC to management generally, witness B7 the gave evidence that in all of her interactions with Mr AC he has been reasonable and lawful in his directions to staff, that he has not singled out any staff member or treated anyone differently and that the Applicant has simply been asked to undertake what are the inherent requirements of her role. Witness B7 was not aware of any indications that the Applicant is being subjected to any repeated unreasonable behaviour and she did not believe the Applicant has been unreasonably performance managed or micromanaged. I found the evidence of witness B7 overall forthright and credible and accept her evidence as to the general approach to management of Mr AC.

The law to be applied

[59] For the Applicant’s application to proceed the behaviour must have taken place in a workplace that is conducted by a constitutionally-covered business. This arises from s.789FD of the FW Act, which is in the following terms:

“789FD When is a worker bullied at work?

(1) A worker is bullied at work if:

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

(i) an individual; or

(ii) a group of individuals;

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

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

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

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

(a) the person is:

(i) a constitutional corporation; or

(ii) the Commonwealth; or

(iii) a Commonwealth authority; or

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

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

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

[60] The term “constitutional corporation” is defined in s.12 of the FW Act in the following terms:

“constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.”

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

“Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth.” 32

Did the alleged behaviour create a risk to health and safety?

[62] In a recent judgement Ms SB 33, Commissioner Hampton considered this component of the legislation. :

“[43] Unreasonable behaviour’ should be considered to be behaviour that a reasonable person, having regard to the circumstances, may consider to be unreasonable. That is, the assessment of the behaviour is an objective test having regard to all the relevant circumstances applying at the time.

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

[45] A risk to health and safety means the possibility of danger to health and safety, and is not confined to actual danger to health and safety. The ordinary meaning of ‘risk’ is exposure to the chance of injury or loss. In the sense used in this provision, the risk must also be real and not simply conceptual.” 34[footnotes omitted]

[63] Based on my consideration of the evidence on risk to health and safety, I am not satisfied the behaviour created a risk to health and safety.

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

[64] Again, the recent decision of Commissioner Hampton provides a framework for considering this aspect of the anti-bullying provision:

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

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

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



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



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

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

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

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



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



• the consequences that flowed from the management action.

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

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

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



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



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



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



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

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

[53] Whether the management action was taken in a reasonable manner may depend on the action, the facts and circumstances giving rise to the requirement for action, the way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters.” 35[footnotes omitted]

[65] It is clear that the Applicant’s job description requires her to service “stream 1” to “stream 4” clients. It is also clear that she has never done so during her time working for this Employer. It is evident that this change, combined with the changed approach to performance management (associated with the drive of the organisation to improve its performance) is a major driver of what has led to the Applicant to make the bullying claims.

[66] The totality of the evidence does not lend support to the Applicant’s claim that it is unreasonable that she service “stream 4” clients. I have taken into account that the Applicant has never serviced this group. However, support by way of additional training has been offered and accepted at which the Applicant excelled. There is no evidence supporting the concerns expressed by the Applicant about the safety of working with “stream 4” clients.

[67] The position description is patently clear that the Applicant is required to service all streams as a part of her role. It is her refusal to do so that has underpinned some of the other events. As discussed above, some of the events I found to be of some concern but I am not satisfied any of them amounted to bullying behaviour. Moreover, all of the events canvassed have to be considered within the context of the Applicant’s continued and unreasonable refusal to undertake the “stream 4” work, and the consequent efforts of her manager Mr AC to get her do that work.

[68] There is no doubt that the organisations work intensity has increased and there is a greater focus on performance management. This was necessary in order for the organisation to survive financially. In turn, this has lead to a significant turnover of staff.

[69] Overall, the Applicant struck me as a genuine individual with a strong commitment to the values and objectives of the organisation that she works for. She presented as a credible, earnest employee. It is unfortunate but not necessarily surprising that the Applicant was having difficulty adjusting from a long period of moribund management to an environment where the organisation was now performance focussed. However, while this represents a significant change in her working environment, the fact that it occurred and the method of its implementation did not amount to bullying.

Conclusion:

[70] Having considered the evidence in this matter, I am satisfied that this issues of concern to the Applicant are reasonable management actions undertaken in a reasonable manner. The actions taken by the two persons named was reasonable management action undertaken in order to manage the functions of the Employer. Moreover, I am not satisfied that the behaviour created a risk to health and safety. As I am not satisfied that the Applicant has been bullied at work, the application for a bullying order is dismissed.

COMMISSIONER

Appearances:

AB appeared on her own behalf

C Broadbent sought and was granted permission to appear for the Employer, Mr AC and Ms AD

Hearing details:l

2015.

Melbourne:

April 13.

Final written submissions:

Applicant, 23 April 2015

Employer and persons named, 30 April 2015

 1   PN170-172

 2   PN247-249

 3   PN353-368

 4   PN455

 5   PN679

 6   PN529

 7   PN824-831

 8   PN536

 9   PN819

 10   PN818

 11   PN603 and PN610-617

 12   Attachment 3 to the witness statement of Mr AC

 13   Witness statement of witness B1, [8]

 14   PN178

 15   PN801-802

 16   PN879-881

 17   PN397 and PN410

 18   PN378-383

 19   PN717

 20   PN894

 21   PN690-692

 22   PN253

 23   PN924-925 and PN996

 24   PN695-706

 25   PN168

 26   PN894

 27   PN892

 28   PN263

 29   PN220

 30   PN754

 31   PN1013

 32   Australian Constitution s.51(xx).

 33   [2014] FWC 2104

 34   Ms SB [2014] FWC 2104, [43] - [45]

 35   Ms SB [2014] FWC 2104, [46] - [53]

Printed by authority of the Commonwealth Government Printer

<Price code C, PR567449>