Abigail Valenzuela
[2024] FWC 2072
•2 AUGUST 2024
| [2024] FWC 2072 |
| FAIR WORK COMMISSION |
| INTERIM DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Abigail Valenzuela
(AB2024/525)
| COMMISSIONER MATHESON | SYDNEY, 2 AUGUST 2024 |
Application for an FWC order to stop bullying – application for interim orders – application dismissed.
On 12 July 2024 Ms Abigal Vanelzuela (Applicant) applied for orders to stop bullying at work. The Applicant is an employee of the Commonwealth of Australia (Employer/Respondent) working for the Australian Taxation Office. There are three persons named in the Form F72 application who the Applicant alleges has bullied her at work (Persons Named).
This decision deals with an Application made by the Applicant for interim orders in relation to that application.
Background
The Applicant is an APS 5 Economist, whose employment with the Employer commenced on 4 December 2023.[1] The Applicant was initially on a 6 month probation period set to end on 3 June 2024.[2] The Applicant’s probation was extended and the Applicant was placed on a Performance Improvement Plan (PIP) that commenced on 11 June 2024.[3] On 8 July 2024 the final PIP meeting was conducted and it was proposed the Applicant’s employment be terminated.[4] The Applicant has been absent from work on paid miscellaneous leave since 24 July 2024.[5] On 25 July 2024 the Employer wrote to the Applicant notifying her that it was considering terminating her employment and inviting a response by 1 August 2024.
As noted above on 12 July 2024 the Applicant made her application in AB2024/525 to the Commission. The matter was allocated to my Chambers on 26 July 2024.
On Friday, 26 July 2024 the Applicant requested that the matter be listed for an urgent conference and a conference was held for this purpose on Tuesday, 30 July 2024. During that conference the Applicant indicated that she intended to make an application for urgent interim orders on the basis that the termination of her employment was impending. I requested that the Applicant make her application in writing specifying the precise nature of the interim orders sought.
Later on 30 July 2024 the Applicant filed a Form F1 Application stating:
‘FAIR WORK ACT 2009 - SECT 370
(b) the general protections court application includes an application for an interim injunction.
In relation to FWC applications AB2024/525 and C2024/4865, I seek that the Fair Work Commission make a determination on whether there was bullying, occupational health and safety, discrimination breaches about general protections at work, by the respondents on the applicant before the ATO terminates the applicant’s employment at the ATO as APS5 Economist on the grounds of performance involving conduct at work about communication to the ATO of submissions that have merit on ATO deliverables.
The applicant would like to call witnesses Sophia Wang, Shaun The and Olivia working in Caroline’s team to give an account of the applicant’s conduct and technical capacity and performance in the 6 months at ATO’.
The orders sought were expressed in the Form F1 Application as follows:
‘I seek that FWC make a determination on the matters AB2024/525 before the ATO counts the 7 days that the applicant decide whether to resign from her ATO employment or to allow that ATO terminate her.’
The Commission wrote to the Applicant noting that the above did not appear to be an application for interim orders but rather presented as a request to hear the substantive matter in full by a date that is unclear. Clarification from the Applicant was sought as to whether this was the case and by what date she was seeking that a determination be made. The Applicant responded as follows:
‘I seek that an order to the effect that the Respondent refrain from terminating me until the substantive matter is listed for hearing and decided.
I confirm:
3.that I am not seeking interim orders but rather to have the substantive matter AB2024/525 heard and determined; and
- that hearing and determination be made 1st of August or before ATO terminates me’.
As the response remained unclear the Commission sought clarification as to whether the Applicant was:
- seeking “an order to the effect that the Respondent refrain from terminating [your employment] until the substantive matter is listed for hearing and decided”; or
- not seeking interim orders, but rather seeking to have the substantive matter AB2024/525 heard and determined and have the matter heard and determined by 1 August 2024 or before the Respondent terminated her employment.
The Applicant responded via email stating:
‘My preference is:
OPTION A:
Have the substantive matter AB2024/525 heard and determined and have the matter heard and determined by 1st of August 2024 or before my employer terminates my employment.
In the alternative, if option A is not viable:
OPTION B:
An interim order to the effect that the Respondent refrain from terminating my employment until the substantive matter is listed for hearing and decided.
The basis for both option A and B is so that the matter can be heard and determined by the Fair Work Commission before the Respondent terminates me’.
Given the Applicant was seeking to have her substantive matter heard and determined within a two day timeframe, in the circumstances of this matter I did not consider that this would enable all parties, one of whom is currently away on leave and does not return until the end of August, sufficient time to file submissions, witness statements and other materials upon which they wished to rely so as to enable the substantive matter to be determined in a procedurally fair manner in circumstances where accusations of bullying have been made. I declined to issue directions for the filing of materials and for the hearing of the substantive application and substantive orders sought by 1 August 2024.
In relation to the interim orders sought, being an interim order to the effect that the Employer refrain from terminating the Applicant’s employment until the substantive matter is listed for hearing and decided, I provided an opportunity for the Applicant to be heard and issued directions for the filing of submissions, witnesses statements and other material upon which the parties wished to rely ahead of an urgent hearing on 1 August 2024.
The Employer filed a witness statement for Ms Caroline Bath, the Applicant’s manager, who gave evidence in the proceedings. While the Applicant did not file a witness statement, she was permitted to give sworn evidence in the proceedings. In light of the significant volume of materials filed in relation to the interim application, the majority of which have also been filed by the Applicant in support of the substantive application, I indicated that my decision in relation to this matter would not be published until 2 August 2024 and the Employer indicated that no decision to terminate the Applicant’s employment would be made until the end of that day.
Applicant’s submissions
The Applicant made submissions in the body of an email dated 31 July 2024. The Applicant submitted:
· ‘It is difficult to dismiss that the behaviours of the 7 staff in 1.1 files (being two files attached to the email entitled ‘sexual harassment account 1.pdf’ and ‘sexual harassment account 2.pdf) are not harassment bordering inappropriate suggestions that are sexual in nature’;
· ‘Unreasonable behaviour and work demands’ (with reference to a number of files attached to the email);
· ‘Management’s right to make decisions about poor performance showed intellectual dishonesty. Management conduct to direct and control the way work is carried out was aggressive, without positive comment and is composed of negative comments that were threatening and harsh. The time frame within which to complete the tasks would not be given to any one in the team that the applicant works in. There was a sudden targeting of the applicant with distressing remarks from management. Management has not met with the applicant and sincerely shown how the applicant can improve but was making comments tantamount to harassment and discouragement’.
The Applicant filed a number of other attachments to her Form F72 application and hearing submissions which can be summarised as follows:
An excel spreadsheet with a number of tabs containing data and graphs;
documents named:
o‘evidence 1’ which appears to be emails between the Applicant and various employees of the Employer on various dates; including cordial exchanges between the Applicant and one of the Persons Named as well as the Applicant and another employee on 29 and 30 January 2024 and technical input provided by the Applicant to those employees on 24 and 25 January 2024;
o‘evidence 3’ which includes emails from the Applicant to one of the Persons Named and another employee on 29 January 2024 and 1 February 2024;
o‘evidence 4’ being emails between the Applicant and various employees of the Employer on various dates between 2 and 13 February 2024;
o‘evidence 5’ being an undated email from the Applicant to another employee which appears to relate to the ‘GST WRE Model’;
o‘evidence 6’ and ‘evidence 7’, being emails between the Applicant and various employees of the Employer on various dates in February 2024;
o‘evidence 8’ which is an undated 64 page document which appears to be information relating to the ‘GST WRE Main Model’;
o‘evidence 9’, ‘evidence 10’ and ‘evidence 11’ which appear to be emails relating to results of modelling or technical content;
o‘evidence 12’ and ‘evidence 13’ being emails between the Applicant and various employees of the Employer on various dates in May 2024;
a document named ‘effectsformat(002)’ depicting data and lines of code;
a document titled ‘GST Treatment Impact DPS LVIG registration, lodgment, sustained compliance’;
a document titled ‘Performance Improvement Plan (Probation)’ dated 9 July 2024;
a document named ‘Placeborcode’ being a word document containing what appear to be lines of code;
a document named ‘Presentation 1’ being a document presenting task findings dated June 2024;
a redacted document titled ‘Placebo GST Model FY24 Q3’ being a report of a model;
a document titled ‘Measuring and reporting fraud tax gap in Australia and similar jurisdictions’;
a document titled ‘LVIG Current Bespoke approach Current State Review and Assessment’;
a document titled ‘Methods to estimate fraud in tax gap’;
documents named ‘sexual harassment account 1’ and ‘sexual harassment account 2’ being emails between the Applicant and various employees of the Employer;
documents named ‘16 May BAS Annualisation Feedback’, ‘23 May BAS Annualisation Feedback’ and ‘27 May BAS Annualisation Feedback’ being emails dated May 2024 between the Applicant and various employees of the Employer;
a document named ‘Placebo task feeback last week PIP’ being an email dated 9 July 2024 from an employee of the Employer to the Applicant;
a document named ‘Public Interest Disclosure’ which appears to be a statement written by the Applicant about the ‘WRE statistical models’;
an email attaching a letter with the subject line ‘Consideration of Termination of Employment – Section 29(3)(f) Public Service Act 1999’ dated 25 July 2024.
The Applicant also filed a document named ‘firstwaveofbullingviamisinterpretationstatementsinprivateconversation’ being an undated email from Ms Bath to the Applicant in which Ms Bath states:
the purpose of the email is to follow up regarding a conversation on 5 April, which is said to have occurred following an incident where the Applicant provided messages to an employee regarding another employee team drinking and advice on belief systems;
Ms Bath and the Applicant spent a long time talking through what is appropriate behaviour and not, providing the example that it is not part of your role to give personal advice to your peers or their managers in relation to their personal life;
a discussion was had around the Applicant doing the work that has been asked of her instead of conducting her own analysis, which may be misleading when she didn’t completely understand the background, business content or model and that this was outlined in your first probation report;
it was explained to the Applicant that it was important to work collaboratively with others and abide by the Code of Conduct;
during a discussion on 22 April:
oMs Bath observed an instance where the Applicant was seeking that Ms bath override a decision made by other employees in relation to additional research on a GST model;
oMs Bath indicated that she would not override their decision, and that the Applicant should check with them the reasons that they didn’t think the research was beneficial or warranted, so that she could understand the context and their point of view;
othe Applicant asked Ms Bath if she could “do this work in secret” and not tell them about it to which Ms Bath indicated this would not be appropriate behaviour and would be contrary to the feedback and direction previously provided to her about focussing on doing the work that she had been tasked with;
oMs Bath asked the Applicant to maintain accurate working time records as she had been recording 7.21 a day, which does not reflect the time she was starting and finishing work;
othe Applicant said she did not want to record overtime, to which Ms Bath explained this was a requirement, that it was not appropriate for the Applicant to log on and work on weekends, unless her manager has asked her to do s o and if her work loads could not be managed within regular weekday bandwidth hours, the Applicant was to talk to her about this;
oMs Bath explained that working well with others and being appropriate were integral values of the APS and the ATO, that the Applicant’s behaviour needed to change and if she was unable to adapt in terms of working with others, communication and maintaining professional working relationships, the Applicant may not be the right fit for the role.
The Applicant also sent approximately fifteen emails forwarding various email correspondence to the Commission and copying the Commission into emails to the ATO between 24 July and 26 July 2024 in relation to her substantive applications.
The Applicant made oral submissions during the hearing and by way of summary submitted that the requirements imposed on her during the PIP process were unreasonable. The Applicant also disputes that her performance was poor.
Employer’s submissions
The Employer filed submissions ahead of the hearing on 1 August 2024 and submitted that the alleged conduct concerning the Applicant’s managers (the Persons Named) was reasonable management action carried out in a reasonable manner.
In response to the Applicant’s allegations the Employer submitted:
the Applicant was not subject to ‘sudden targeting’ but was the subject of a comprehensive PIP following opportunity to improve her performance;
there was no ‘intellectual dishonesty’ to the decisions about the Applicant’s performance and the decisions were made following robust consideration of the objective evidence based on the tasks assigned to the Applicant in the PIP;
the Applicant was provided adequate time in which to complete the two key tasks assigned to her in the PIP;
the Applicant met with Ms Bath and the Applicant’s supervisors on a number of occasions during the PIP, these meetings provided detailed feedback over the four week period of the PIP and were designed to provide the Applicant with an opportunity to improve her performance;
the conduct of Ms Bath, the Applicant’s manager, was not aggressive, threatening or harsh but was courteous and reasonable.
In relation to the allegations of sexual harassment the Employer noted that these allegations are new, were not raised in the Applicant’s application and it is unclear if the Applicant also now seeks an order seeking to stop sexual harassment. In this regard the Employer submitted that:
if such an order is sought, the Applicant ought to be required to make that application;
in any event, in order to make an order to stop sexual harassment the Commission would need to be satisfied that the Applicant has been sexually harassed and there is a risk that the Applicant will continue to be sexually harassed;
based on the material currently before the Commission it cannot be satisfied that the Applicant was sexually harassed.
In this regard the Employer submitted that the allegations set out in the documents ‘sexual harassment account 1’ and ‘sexual harassment account 2’ are confusing, noting that the Applicant states in ‘sexual harassment account 2’ that:
‘After all, sexual discrimination is denying a person support, in their choice of a certain attitude toward the electrifying, engaging, pleasurable even enslaving and all person engaging act of sexual intimacy. This is true for all types of choices by all people.’
The Employer submitted that the conduct complained of appears to relate to normal workplace interactions and engagements with no harassment and of no sexual character but in any event are being investigated by the Employer. The Employer submitted that on any proper view, none of the alleged conduct can be said to be sexual harassment within the meaning of ss.527D and 12 of the Act or s.12 of the Sex Discrimination Act 1984 (Cth).
Consideration
Section 798FF of the Act provides:
If:
(a) a worker has made an application under section 789FC; and
(b) the FWC is satisfied that:
(i)the worker has been bullied at work by an individual or a group of individuals; and
(ii)there is a risk that the worker will continue to be bullied at work by the individual or group;
(c) then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.
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.
The Commission’s jurisdiction to make interim orders in applications made under s.789FA of the Act was considered by a Full Bench of the Commission in Ms Virginia Wills v Grant, Marley & The Government of New South Wales, Sydney Trains and Another[6] (Wills). In that matter it was accepted that the Commission has the power to make an interim order dealing with an application made under s.789FC of the Act however the dispute concerned the basis on which such power may be exercised.[7] The Full Bench agreed with the analysis of Deputy President Colman in Mayson v Mylan Health Pty Ltd[8] that:[9]
in relation to an application made under s.789FC, an order made in relation to that application will be an application under s.789FF and the relevant requirements of that section must be satisfied;[10]
‘s.789FF confers jurisdiction on the Commission to make an anti-bullying order if, and only if, it is satisfied that the worker has been bullied at work, and that there is a risk that the worker will continue to be bullied at work. In order to be satisfied that a worker has been bullied at work, the Commission would first need to make factual findings about what has occurred and assess whether the behaviour of relevant persons may be characterised as falling within the definition of ‘bullied at work’ in s.789FD(1). This would require the Commission to make a finding that the impugned conduct was repeated and also unreasonable, that the conduct was towards a worker, and that it created a risk to health and safety.’[11]
Following the approach of the Deputy President Colman in Mayson v Mylan Health Pty Ltd[12], as endorsed by the Full Bench in Wills,[13]I consider that before an order can be made in this matter, I need to be satisfied that:
the Applicant has been bullied at work; and
there is a risk that she will continue to be bulled at work.
Allegations of bullying
As noted above, the Applicant alleges that she has been bullied at work and by way of summary this allegation appears to be connected to the actions of the Persons Named in providing feedback in relation to her work that she does not agree with, extending her probationary period, instigating the PIP, task allocation and feedback during the course of the PIP and in foreshadowing that the termination of her employment was under consideration.
The Respondent filed a witness statement for Ms Bath, the Applicant’s manager, who gave evidence in the proceedings. Ms Bath gave the following evidence:
Ms Bath is responsible for the management of a team that estimates revenue effects resulting from the ATO’s interactions with clients.[14]
The Applicant commenced employment in her team on 4 December 2023 as an APS 5 Economist and was initially on a 6 month probationary period set to end on 3 June 2024.[15]
APS 5 Economists are required to assist in model development and running models.[16]
Formal probation review sessions were conducted with the Applicant on 7 March 2024, 23 April 2024 and 23 May 2024 and at each of the sessions the Applicant’s performance was rated as ‘improvement required’.[17]
Under the ATO performance management system the rating ‘improvement required’ means that an employee does not meet the expected level of contribution during the probation period and their manager will proactively support them to get back on track.[18]
Where action taken to address the performance gap does not lead to a satisfactory level of performance, further action should be taken including implementation of a Performance Improvement Plan (PIP).[19]
On 30 May 2024 the Applicant was advised that her probation period would be extended until 3 September 2024 to allow more time for further support to be provided to her to close identified performance gaps and that a PIP would be implemented.[20]
On 6 June 2024 the Applicant was provided with the PIP for her feedback and it was implemented from 11 June 2024 to 11 July 2024 covering three areas:
oProfessional communication;
oFollowing instructions;
oProfessional Workplace Behaviour.[21]
The performance expectations as set out in the PIP included:
oAct in accordance with the APS Code of Conduct and Values including being Impartial, Committed to service, Accountable, Respectful and Ethical.
oWork collaboratively in the team environment, developing and maintaining professional working relationships with co-workers, internal and external stakeholders, values the input of others and contributes to resolving differences.
oBe accountable for prioritising my workloads – speak to me if there are any issues with a ‘priority clash’ or with meeting a ‘deadline’.
oCommunicate clearly, actively listen to others and respond with respect.
oEnsure that work is of a high quality, meeting task requirements/objectives with minimal errors.
oUphold the work level standard required as an APS5 including:
§Work independently or under limited guidance in relation to area of expertise. Complex or difficult issues are discussed with team leaders or experts.
§Have an awareness of changes in the broader work environment that may impact on work objectives.
§Perform objective and systematic research and analysis to obtain accurate conclusions based on evidence.
§Develop and maintain internal relationships.
§Undertake activities to develop knowledge and expertise in relation to professional skills.[22]
Ms Bath agreed with the Applicant that she would be supported in having informal access to two supervisors of the work task allocation for the duration of the four week period, being two of the Persons Named.[23]
The Applicant had formal weekly meetings with the Persons Named to provide clear observational feedback and to assist her to understand her work on hand, delivery timeframes and interim modelling.[24]
In order to assess the Applicant’s performance she was given two main tasks established by two supervisors.[25]
Ms Bath asked one of the supervisors to establish one of the tasks so that an EL2 employee (other than Ms Bath) who had not previously worked with the Applicant had input into how the Applicant’s work was assessed.[26] Ms Bath said she considered this was a fair approach as it provided a wider degree of input and assessment for the Applicant.[27]
One of the two tasks the Applicant was required to undertake was the ‘LVIG task’. Ms Bath said:
othis required the Applicant to translate a procedure into a method statement;[28]
othis task did not require code writing or running of code but rather, required the Applicant to write out in plain English what the code was doing in the format of a method statement; [29]
oa method statement template was provided to the Applicant to complete as well as a completed method statement;[30]
othis task was chosen because it was a straight forward task that would allow the Applicant to demonstrate her communication skills and ability to follow instructions;[31]
othis task was deemed reasonable and appropriate as it had recently been set for an APS 4 (acting APS 5) and they had completed it within a week, while also having several other pieces of work on hand.[32]
The other task the Applicant was required to undertake was the ‘GST Placebo task’ which required the Applicant to set up a script to run a placebo test on the GST model.[33] Ms Bath said:
othis task required the Applicant to set up a script to run a placebo test on the GST model;
oan example script was provided to the Applicant which she was required to review and update;
othe Applicant was also required to prepare a report outlining her findings and was provided with an example report to show what was expected;
othe Applicant was provided with an outline of step-by-step instructions to assist in updating the example script for the GST Model and was also given a walk-through of the example script before commencing the task;[34]
othe task was chosen because it had been asked of others new to the team to complete;[35]
oan APS 5 employee who was new to the team was asked to complete the same task in relation to the Companies model and it was completed within a week.[36]
Ms Bath said she considered the tasks to be reasonable and appropriate as they had been set previously for staff at the Applicant’s level and completed within the time frames, while also having several other pieces of work on hand.[37]
Ms Bath said weekly meetings associated with the PIP took place between the Applicant and Persons Named on 18 June 2024, 24 June 2024, 2 July 2024 and 8 July 2024. Ms Bath said the last two of these meetings were also attended by a HR officer and the Applicant was invited to bring a support person.[38]
Ms Bath said that during each weekly meeting the Applicant had the opportunity to present tasks completed in response to the PIP and respond to feedback regarding her tasks.[39]
In relation to the LVIG task, Ms Bath said the final method statement submitted by the Applicant was not well written, the explanation of the method was not clear, easy to understand or described in plain English and despite verbal and written feedback provided in weeks 1-4, the method still contained incorrect and irrelevant information.[40]
In relation to the GST Placebo task, Ms Bath said the final written response submitted by the Applicant was not clear, concise or well written, the response overall lacked structure, the Applicant’s explanations and justifications weren’t tailored to the relevant audience and the supervisor had provided feedback that he had to read the document multiple times to try to understand it, and had to make many links and inferences to make sense of the information and analysis provided.[41]
Ms Bath said that throughout the 4 week PIP period the Applicant continued to not follow the instructions provided to her for both the tasks and in particular:
ofor the LVIG task, the Applicant did not follow the instructions or use the templates and examples provided – despite feedback being provided on this each week;
ofor the GST Placebo task, the Applicant did not complete the tasks in line with the instructions provided and her email responses and written reports have continued to contain out-of-scope information.[42]
Ms Bath said the Applicant’s performance did not improve during the 4 week PIP and at the final PIP meeting on 8 July 2024, she advised the Applicant that the outcome of the PIP was that expectations were not met and that termination of her employment would be recommended.[43]
Section 789FD of the Act provides:
‘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’.
Allegations of sexual harassment
As noted above, the Applicant stated in her submissions:
‘It is difficult to dismiss that the behaviours of the 7 staff in 1.1 files (being two files attached to the email entitled ‘sexual harassment account 1.pdf’ and ‘sexual harassment account 2.pdf) are not harassment bordering inappropriate suggestions that are sexual in nature’
The document ‘sexual harassment account 1.pdf’ is an email chain between the Applicant and employees of the Respondent. This includes:
an email from a HR Officer of the Respondent to the Applicant on 23 July 2024 in relation to a request the Applicant has made for a ‘Review of Employment Action’ lodged on 22 July 2024 regarding a decision to extend the Applicant’s probation period. The HR Officer is not one of the three persons named in the application. In that email the HR Officer communicates the process for such a review, stating:
‘Following a review of the material provided by you and through further investigation, the delegate may determine:
1.That your matter falls outside of the scope and is considered non-reviewable in accordance with the Regulations, or
2.The request is reviewable, and a full review of all relevant material is undertaken.
3.In this circumstance the delegate will either confirm the decision; vary the decision OR set the action aside and substitute a new action.
You will receive a detailed written response on the delegates decision and my completed report. This process can take up to three months from the date you submitted however, I will keep you updated on the progress at regular intervals.
Please reach out if you have any questions or concerns’;
an email from the Applicant to the HR Officer at 1:19 PM on 24 July 2024, copying three others, stating what she is working on, stating that she had been complained about as clogging inbox’s and expressing her intention to inform the HR Officer regularly about her work and from where it was accessible. The email then proceeds to provide extracts from OECD documents and purports to provide a summary of the Applicant’s work activities across a seven month period along with the following statement:
‘I have completed work in the last 7 months that are related to this current pieces of work. All these are summarised below and is stated by Caroline Bath as unprofessional, misinformed, offensive. ATO’s dismissal of my work below in
its recommendation to terminate me due to sending email that clogs inboxes among other reasons, is defamatory, fraudulent (stating as true, what is known as false – manager’s allegation of my work as without merit), adverse action where my occupational health and safety rights are misreperesented (sic), coerced as non-existent and violated through repetitive shameful bullying, where HR officers who are witnessing the behaviour, are defensive and pressing of such conduct despite the evident agitated and injured state of the employee. I have met all deadlines nonetheless and submitted work of high quality, well written and thought of which were all dismissed with no opportunity to present. I have recuperated from fever and cough and have returned to work continuing as above stated’’
another email from the Applicant to the HR Officer at 2:00PM on 24 July 2024, copying three others, stating:
‘Test questions about whether manager conduct complies with ‘Working Well’ are:
1.Is it common practice to give the task of completely annotating 1800 lines of code in R language due date in 7 working days from task notification, to all WRE or Revenue Performance team members, who have been in their role for four months? This harsh task assignment was done after the manager Caroline said that tasks I did which were presented to her were distracting and misinformed. The GST model method statement indicates that the version control 2017-2019 contained the tests presented to her which I proposed were possible leads in improving the model. Kumu and George recognized the value, but Caroline flatly grossly accuses me of work that is distracting and misinformed, while admitting that the GST model is left behind in quality, and that she had no formal training in statistics. Why is my work always rashly dismissed while others’ works are not?
2.Is it common practice to give the task of method statement writing to a 6 month in the role employee, involving computer notation and code deciphering a deadline of 5 working days, where no access and prior training of the application was conducted, whereas the rest of the team are given months to learn it? I say 5 working days because during the PIP, the managers were coercing results every few days in a conference
where all of them negatively criticise with dismissive tones.
3.Is it common practice to give the task of writing a computer program by oneself without the right to ask a team member any question, saying that the task must be done independently, a deadline of 5 working days while another task was given within the 5 working days? I found this satisfying because I am a computer programmer, and I completed the lines of code in 2 days and was able to run in in the next 5 days. I do not think George would be courageous enough to give this challenge to new graduates or entrants. They will be decrying the many bugs I found which I solved myself.
4.After all tasks were given submissions by the employee, there was no feedback given as per HR’s recommendation of valuing work. Are all team members subject to management’s right to detraction of their subordinate as not understanding the statistical model and not being able to write in plain English despite all the submissions?
5.Is it management’s practice to deny task extensions even though it is obvious that logistically in regard to access of data and newness of task I am greatly disadvantaged and in addition, I am told repeatedly that these are tasks you are to conduct INDEPENDENTLY?
I am pursuing tertiary education roles and am very much affected by ATO manager’s right to make these statements against me. I have been teaching in tertiary for decades. I have been responsible for saving costs in large companies. Executive management of these companies still correspond with me and recognize the foundational work I completed during my stay with them. I am not financially stable. Does ATO have the right to destroy me?
Please ask these questions above. Are all ATO employees subject to these or is it just me? Or perhaps the question should be asked, did the above happen because ATO would deny that these happened as I write and describe them?
Your email that it will take 3 months does not align with the mission of ‘Working Well’.
The above matters appear to relate to concerns the Applicant held about the extension of her probationary period, Ms Bath’s perception of the Applicant’s performance and suggest the Applicant believed the timeframes imposed for the completion of tasks were unreasonable, with the Applicant inferring that tasks assigned to her required her to:
annotate 1800 lines of code in R language within 7 working days;
write a method statement involving computer notation and code deciphering within 5 working days, where no access and prior training of the application was conducted.
The file ‘sexual harassment account 1’ also contains other emails concerning employes who are not the Persons Named including:
an email from the Applicant to the HR Officer on 24 July 2024, at 7:20PM, copying three others, stating that she would like to make a report about inappropriate behaviour by six members of staff. Among the allegations are allegations that:
oa woman in the kitchen made comments to the Applicant about her ‘hair being let down’. The Applicant stated in the email ‘I was uncomfortable at this comment and have stopped talking to her. She continues to greet me every morning even though I stopped responding. At one morning during her early entry into the office, she said that a manager forced their person on her. I am not sure whether she wants me to overhear that it is common practice for employees to be initiated into widespread eroticism or morbid curiosity’;
oanother woman spoke to her in the kitchen offering advice about how to do her job. The Applicant states in this email ‘I first talked to her but then I found her very fresh. She kept on asking questions even though I was not responding. She went to my desk after several attempts to speak to me and then sat beside me and I noticed her legs were open towards me. After this occasion where she said she wanted to learn more from me, she tried to greet me several times and then ask me again what is wrong. On all occasions I avoided her’;
oanother woman ‘always talks loud on the floor’. The Applicant’s email stated that ‘She said that she is divorced and that she takes whoever comes’. The email states that the employee is on good terms with the others and states ‘actions are putting pressure on me about the difficulty of my situation. I think they know I am on probation, and when they make fresh and forward movements like this, it is unnecessary’;
oa male who the Applicant describes as an ‘executive officer’ asked her personal questions about jewellery when she spoke to him about buying a pearl ring. The Applicant stated in the email ‘He then asked me whether I yearned for more. I saw him move his hips in a gyrating manner after this conversation’.
oanother male made a comment that the Applicant was ‘old school and taking notes on paper’ the Applicant alleged that this male ‘also appeared to make gyrating hip movements after conversations like this’;
oanother male who the Applicant said ‘always stops in front of me every morning greeting me and expecting me to greet back even though he knows I would be terminated’.
The Applicant goes on to say in this email ‘The people on the floor have been hostile but have exhibited these above behaviours even they know that I would be terminated.
I would include all the above in my complaint’;
another email from the Applicant to the HR Officer on 24 July 2024, at 7:28PM, copying three others and the Commission raising a concern that Ms Bath had made accusations that she breached the code of conduct and providing context that:
oin her third month of employment she ‘heard a colleague making a presentation and his voice was sounded depressed’;
oshe told an officer in confidence, ‘because this officer spoke about his going to a religious service with his fiancé, that to fight low energy, the colleague should if he is secular in outlook research Jordan Peterson for outlooks about handling personality. If the colleague is Catholic, that the Rosary is a solution’;
oMs Bath said these statements were advice and breaches of the code of conduct.
The Applicant appeared to raise concern in this email that:
othe ATO had recommended ‘Yoga and other Eastern religion meditation for mind health openly’ and while when she mentioned other options she was accused of giving advice;
othe ATO was ‘breaching Constitutional Law which did not allow government to peddle or recommend any religion’ and should have an equal attitude towards all religion;
othis was a breach of the Applicant’s freedom of speech.
The Applicant also raised concern about an employee sitting close to her desk sipping a drinking bottle loudly in front of her.
another email from the Applicant to the HR Officer on 24 July 2024, at 7:32PM, copying three others and the Commission:
orequesting the HR Officer to tell an employee who worked on the same floor as the Applicant to ‘stop positioning in front of [the Applicant] when greeting her in the morning as if wanting to get a response from [her] when multiple times [she] already was unresponsive’; and
oalleging the employee’s continued conduct in stopping in front of the Applicant to greet her and look at her in the face was harassment’.
The email states she has had problems with six other employees.
an email from the Applicant to the HR Officer on 25 July 2024, copying three others and the Commission stating:
‘The major reason I was recommended for termination is that I am unprofessional in my conduct. One evidence given is that people on the floor with whom I worked with complained that one day, during the third time that I was in a call with the three managers for the PIP, my voice was agitated. Caroline then lied that I did not go into the room during the last call. I was in a room in the last call. I was not in a room during the second to the last call which she granted permission for. There are inconsistencies with Caroline’s write up about me. It shows that her statements cannot be proven on the balance of probabilities. You can ask me repeatedly about the occasions of the
alleged breaches and incapacities in the workplace and I can tell you from memory all the numbers and words in their pristine form.
Caroline said in an email that my voice being agitated on the floor during the call was a stain to the reputation of the team and that I should go to a private room next time. I never thought my reaction with be intense at this claimed agitated voice during the call. The three managers were badgering me with negative comments and no positive
comments at all. I was explaining to the managers that to keep my composure, I must say the good things I have done in the tasks because all comments given during the weekly check ins were negative criticism. Caroline kept on saying that the point of the PIP is to make me follow instructions and that I am not following instructions.
After the people on the floor are loud and behave in a manner described in the prior email, it was once that I had a voice not of tone as usual, and it is used against me for termination and said to be destructive to the reputation of the team.
This is vilification and discrimination at the time when I am already greatly burdened by tasks not given to normal team members for the last two months’.
an email from the HR Officer to the Applicant on 26 July 2024:
oacknowledging receipt of her emails;
onoting that her investigation will be limited to allegations of bullying, harassment, discrimination and sexual harassment, that her team does not consider claims of defamation and expressing an understanding that the Applicant had matters with the Commission;
onoting that the emails outline new allegations and seeking more information;
an email from the Applicant to the HR Officer and another on 26 July 2024 stating:
‘It is my intention to give evidence that the following events occurred and that the events caused me to react in a manner I did not want. It is up to the decision maker to determine whether it was sexual harassment, harassment, bullying, discrimination or vilification’.
The email goes on to make the following allegations in relation to six employees:
oIn relation to the first employee the Applicant states:
‘I first met her at the kitchen. I was completing the Placebo Test task for my Performance Improvement Plan and was reading from my Basic Business Statistics textbook about sampling. She then started engaging me in conversation asking questions. I then said I was reading something I needed to know about in a task and that I have a problem with management recognizing my work merits. She offered advice about not saying details but just give solutions and that I should ask people to give me the files that I do not have access to. I found the time she took from me as cumbersome, because none of what she said was applicable. She then started approaching more than twice it appears on purpose. She asked me a question another morning in the kitchen saying why am I so early and whether I live in the building floor. She sat beside me, being in pants, with her legs open noticeably by me, saying that she wants to learn from me. She even started noticing a Bible that I have open on my desk. After this visit from her, I started to avoid her. One morning she said, ‘what is the problem?’. I did not return a reply and walked off. I crossed path with her twice more around the toilets. I avoided eye contact. I do not want to cross path with her again if her attitude is to interrogate me further. She can learn wisdom from another person’.
oIn relation to the second employee the Applicant states:
‘I used to talk to her about her sister who was having problems in her job as a museum customer service staff. I said I could not give advice but that she should read up on the matter and that at the workplace, one should decide how to conduct oneself. But one morning, she suddenly at the kitchen early in the morning, I usually arrive early like her, she said that ‘my hair was down’ or something to this effect. I said that I had aloe vera which I can give her if she wants and then she said she would say so if she wanted aloe vera. I found her statement uncomfortable and no longer spoke to her. She continues to elicit a response from me though every time she greets me. I do not want to speak to her too much after she said the phrase ‘my hair was down’. I then overheard Natalie say some words to the effect that a boss forced on her in some way. Natalie usually talks early in the morning about complaints about her boss. But when I no longer was responsive to her or was open to talking to her, I heard her say that a boss forced on her or words to this effect. I no longer would like to speak at length too much with her because it appears that there might be some permissiveness in intimacy about employee to employee or employer to employee or boss to subordinate. This was over the months of April or May mornings’.
oIn relation to the third employee the Applicant stated that:
oshe saw the employee talking to two other employees;
oshe saw these employees more than once;
othe employee said she was divorced and takes whoever in relation to which the Applicant stated ‘This is the only retort I was affected by’;
oif she sees the three employees ‘in chummy basis, putting together these incidents gives me the impression that there is a wearing down of my resolve to not be sexually permissive as I am a Christian’
oshe states she considers the conduct of the three women ‘should not include conduct that could influence one who is of a different value system to be worn down. It is common sense to know that when impressions about moral standard are given hints like these, it is easy for the vulnerable employee who is to be fired from probation or at risk of employment to be battered or beleaguered. This was just a few weeks ago probably midday’.
oIn relation to the fourth employee the Applicant stated she remembered him distinctly ‘sipping loudly from a bottle’ and said she thought this was ‘not only uncouth but would pressure me to think sexually when such conduct is loud and indiscrete. The Applicant indicated she was afraid of going to work after the incident and would cover her vision of the employee as he was seated sometimes directly across her. The Applicant said when the work from home days increased, she was more at ease. The Applicant stated in that this employee ‘tries to elicit responses to this ‘good morning’ greets as he comes in the office’ and she felt coerced but lately gained the confidence once or twice not to return the greeting. The Applicant stated that the employee stops and turns to her when he comes into the office for the early greeting and she keeps her head down. The Applicant stated she was considering resigning early in her employment because she was not sure about the employee’s behaviour nor her interpretation. However the Applicant said that now that he keeps on greeting her and appearing as though she owes him a response, she is more prepared to write about this conduct.
oIn relation to the fifth employee Applicant said she remembered telling the employee about buying a ring and her personal reasons for this and the employee asked her whether she was a woman who would not be satisfied or words to this effect. The Applicant said she saw him move his hips in a gyrating manner while he was at his desk and while she was at my desk at well on the same row. I stopped talking to him after this.
oIn relation to the sixth employee the Applicant said that he told her that we was old school and writing things on paper when she had been asked to write annotation for 1800 lines of R code. The Applicant also alleged that the employee also engaged in hip gyration at his desk and when she was at her desk and after this event she never talked to him again.
In her email to the HR Officer the Applicant stated in relation to these allegations:
‘Taken all together pressure is applied on me to think about things I do not want to think of at the workplace, where it is difficult to dismiss that the conduct does not refer to an intention to elicit a sexual like response from me, to make fun of me or scare me or crush my spirit. I … Thank you again for your request for more detail. It is up to you whether you investigate sexual harassment. All I say is that the above have occurred and the consequence to me are as I state them’.
The document ‘sexual harassment account 2.pdf’ is an email addressed to the Commission dated 27 July 2024. That email raises a number of matters including:
a concern that colleague economists in Ms Bath’s team (who are not the Persons Named) and who do the same work as the Applicant spend ‘many minutes chit chatting on the floor’ and that the Applicant does not find the time to do so as she lacked the time to finish the requirements of tasks given to her across the prior eight weeks;
that she found errors in a colleague’s lines of code that have been overlooked or not responded to by the Persons Named;
in relation to the placebo test required of the Applicant as a part of her performance improvement plan, the Persons Named have stated that her work is unreliable for the GST model, have dismissed her work and not recognised any merit;
she was not given time to present her work to the colleagues assessing her;
one of the Persons Named ‘ambushed’ the Applicant with a false allegation that she failed to apply a criteria;
her work on the placebo test has found errors and that one of the Person’s Named did not discuss these technicalities with the other Persons Named.
The email in the document entitled ‘sexual harassment account 2.pdf’ goes on to make allegations about a seventh employee, who was not named in the application and who she said appears to have been hired from a pool of graduates. The accusation she makes against this employee is that on the first day he sat at a desk to the left front of the Applicant, the employee, ‘with his left hand and head titled very slightly downward but still above the horizontal, turned away’ from the Applicant, ‘ran his fingers through his hair on the left side of his head’ while still not looking at the Applicant. The Applicant said in her email ‘I had the feeling that he knew I noticed this movement of his for a second part of a second. This movement to me cannot be dismissed as not eliciting some erotic feeling.’
The Applicant goes on to say in her email that she never attempted to make eye contact with the employee after that time and has never spoken to him, always keeping her head down when he would work on the same floor as her. The Applicant goes on to say in the email:
‘Because the movement was ambiguous as whether it can be interpreted as a mere movement of a person to fix his hair or as a movement that intentionally elicits sexual response or oppression to force to think about sex at work, I never gave room in my decency as a person to give him the benefit of the doubt…
I do not make a judgment about narrative 7 and narratives 1, 2, 3, 4, 5 and 6 in yesterday’s email. I would not move from the position though that the conduct of these 7 staff could be improved as to their being ambiguous.
After all, sexual discrimination is denying a person support, in their choice of a certain attitude towards the electrifying, engaging, pleasurable and even enslaving and all person engaging act of sexual intimacy. This is true for all types of choices by all people.’
Having considered the evidence of the Applicant and Ms Bath and the materials the Applicant relies on in seeking interim orders and which are currently before the Commission it appears to me that there have been concerns about the Applicant’s performance during her role and that despite nearing the end of her probationary period Ms Bath has sought to give her an opportunity to address these concerns through the PIP, has set tasks for the Applicant to complete taking into account what is expected of other employees at her level and the time it takes for these employees to complete those tasks, has provided examples and templates to assist her in completing the tasks, has conducted multiple meetings to provide feedback and that despite the tasks allocated to her and guidance provided in relation to how those tasks should be executed the Applicant has not been able to overcome those performance concerns.
While it is clear the Applicant does not agree with the assessment of her performance made by the Persons Named or her Employer, the materials and evidence provided by the Applicant has not, at this stage in the proceedings, been sufficient to satisfy me that the course adopted by the Persons Named was unreasonable. As such, I am not satisfied at this stage in the proceedings that the Applicant has been bullied at work and am therefore unable to make the order sought by the Applicant. The conduct alleged in relation to the Persons Named does not, on basis of the material currently before the Commission, appear to relate to allegations of sexual harassment and no application of that nature has been made in respect of those persons.
The above allegations made about the seven other employees who are not the Persons Named do not lead to a finding that the Applicant has been bullied at work by those persons and to the extent that she wishes to make a further application alleging sexual harassment by others it is the Applicant’s prerogative to make such an application but that is not the application currently before me. As noted by the Respondent the Act provides that the term ‘sexually harass’ has the meaning given to it by 28A of the Sex Discrimination Act 1984 (Cth). The making of the above allegations by the Applicant does not in and of itself establish that sexual harassment has occurred and questions as to whether the conduct alleged could properly be considered sexual harassment as defined in section 28A of the Sex Discrimination Act 1984 (Cth), and whether sexual harassment did, as a question of fact, occur would be best ventilated in an application directed at orders to stop sexual harassment, in which the persons accused of such conduct should be provided with an opportunity to respond to the accusations made against them, rather than a determination about this being made in the current application.
Conclusion
As I am not satisfied at this stage in the proceedings that the Applicant has been bullied at work or that she is at risk of further bullying. I am unable to make the order sought by the Applicant. As the Full Bench in Wills noted that the fact that the requisite state of satisfaction may be reached, or not reached, at an interlocutory hearing on the basis of the material before the Commission does not foreclose the result of the final hearing.[44]
The Application for interim orders is dismissed and I will engage further with the parties about how the substantive application should be dealt with.
I note that during the course of these proceedings, the Employer has foreshadowed that the Applicant has referred to sensitive information that may relate to the Employer’s enforcement and compliance activities and held concern about the potential for such information to be in the public domain. The Employer proposed that the decision be provided to the parties but not be published on the Commission’s website for a period of two weeks to enable the Employer to review the materials filed in relation to the application, the transcript of proceedings, this decision and its contents and if necessary, make an application for confidentiality orders. The Applicant did not object to this course of action during the hearing. As such, this decision has been provided to the parties on a confidential basis and the Employer is required to make an application for any confidentiality orders that it wishes to make by Friday, 9 August 2024. Unless otherwise ordered by the Commission, the decision will be published on the Commission’s website on 16 August 2024.
COMMISSIONER
Appearances:
Mrs A Valenzuela on her own behalf.
Mr S Witton of Australian Government Solicitor on behalf of the Employer.
Hearing details:
Sydney.
Video by Microsoft Teams.
1 August 2024.
[1] Statement of Ms Caroline Bath (Bath) at [3].
[2] Bath at [3].
[3] Bath at [13] and [15].
[4] Bath at [28].
[5] Bath at [36].
[6] [2020] FWCFB 4514.
[7] [2020] FWCFB 4514 at [30].
[8] [2020] FWC 1404.
[9] [2020] FWCFB 4514 at [34].
[10] [2020] FWC 1404 at [20].
[11] [2020] FWC 1404 at [19].
[12] [2020] FWC 1404.
[13] [2020] FWCFB 4514.
[14] Bath at [2].
[15] Bath at [3].
[16] Bath at [4].
[17] Bath at [5] – [6].
[18] Bath at [7].
[19] Bath at [10].
[20] Bath at [13].
[21] Bath at [15].
[22] Bath at [16].
[23] Bath at [17].
[24] Bath at [17].
[25] Bath at [18].
[26] Bath at [18].
[27] Bath at [18].
[28] Bath at [18].
[29] Bath at [18].
[30] Bath at [18].
[31] Bath at [19].
[32] Bath at [19].
[33] Bath at [18].
[34] Bath at [18].
[35] Bath at [20].
[36] Bath at [20].
[37] Bath at [21].
[38] Bath at [22] – [23].
[39] Bath at [24].
[40] Bath at [25].
[41] Bath at [26].
[42] Bath at [27].
[43] Bath at [28].
[44] [2020] FWCFB 4514.
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