Ahmed Osman

[2023] FWC 2830

[2023] FWC 2830

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Ahmed Osman

(SO2022/267)

COMMISSIONER WILSON MELBOURNE, 9 NOVEMBER 2023

Application for an FWC order to stop bullying; whether Applicant bullied at work; whether conduct unreasonable or reasonable management action; whether conduct created risk to health and safety. Conduct of Applicant and impact on workplace. Recommendation issued.

1. Mr Ahmed Osman has made an application pursuant to Part 6 – 4B of the Fair Work Act 2009 (FW Act) alleging bullying at work by numerous of his co-workers at an Australian Postal Corporation (Australia Post) facility known as the Melbourne Gateway Facility (MGF) at Tullamarine.

1. The allegations Mr Osman makes were originally against eight co-workers, however two of those have left MGF and so, even if it were possible to make findings they had been engaged in bullying (which I do not) it would not be possible to make orders in respect of those people or their conduct. He advanced 41 allegations in all.

1. This decision, at least in respect of Allegations 16, 17 and 34 must be read in conjunction with a separate document, Confidential Reasons for Decision, which is the subject of a confidentiality order of the Commission pursuant to s.594(1)(d) of the FW Act.

1. For the reasons I detail below and in the Confidential Reasons for Decision I have not found any of the allegations are substantiated as “bullying at work” for the purposes of the FW Act.

BACKGROUND

1. Mr Osman has worked as a Mail Officer at Australia Post since 2015. The facility in which he works is physically very large with around 250 people employed there.[1] The facility works around-the-clock using heavy sorting loading and other equipment to do its tasks. It is described as having an area of several football fields.

1. Mr Osman claims bullying at work from people both higher than him in the Australia Post hierarchy as well as those working at the same level. He claims bullying conduct started in 2016 and has continued since; potentially escalating in recent time. The Persons Named in the initiating application were:

• Timothy Singleton

• David Harrison

• Sylvio Bignoux

• Brett Watkins

• Marissa Bozzo

• Alexander Banting

• Luke Harrison

• Neil Loring.

1. Two of the Persons Named left Australia Post’s employment before the application was formally heard (Luke Harrison and Neil Loring). A further person, Katrina Eishold was added to the list of people involved after I became satisfied there was a prima facie case to be answered on her part. The seven people who are now the subject of this decision and their positions within Australia Post are:

• Timothy Singleton, MPC2 at Tullamarine Parcel Facility (previously Acting Process Leader at MGF)

• David Harrison, Area Manager at MGF

• Sylvio Bignoux, Manager Verification Notes at MGF

• Brett Watkins, Processing Manager North at MGF

• Marissa Bozzo, Mail Officer at MGF

• Alexander Banting, Mail Officer at MGF

• Katrina Eishold, Operations Manager Network Operations at MGF.

1. Mr Osman has made 41 allegations against these people. His original application involved Allegations 1 to 40 with Allegation 41 being added as a result of my decision to seek a response on that allegation and others involving Ms Eishold. The 41 allegations considered in this decision are:

Allegation No.

Drawn from Exhibit A1 – Applicant Submissions filed on 13 February 2023

Allegation 1 – String Cutting Incident

Allegation 2 – ULD Shunting Incident

Allegation 3 – Earphone Incident

Allegation 4 – Close Standing Incident

Allegation 5 – Crying Co-worker Incident

Allegation 6 – No Talking Instruction Incident

Allegation 7 – Pillar Stretching Incident

Allegation 8 – ID Photo Incident

Allegation 9 – Workplace Flexibility Request Incident

Allegation 10 – Text Message Incident

Allegation 11 – Shoulder Brushing Incident

Allegation 12 – Early Break Incident

Allegation 13 – Profanity Allegation Incident

Allegation 14 – First Workplace Issues Meeting Incident

Allegation 15 – Coughing Incident

Allegation 16 – Washbasin Incident

Allegation 17 – Disabled Toilet Incident

Allegation 18 – Hidden ID Incident

Allegation 19 – ‘Good Until You Talk to Me’ Incident

Allegation 20 – Recording Incident

Allegation 21 – Hand Gesture Incident

Allegation 22 – First 6AM Shift Change Request

Allegation 23 – Second 6AM Shift Change Request

Allegation 24 – Fourth 6AM Shift Change Request

Allegation 25 – Second Workplace Issues Meeting Incident

Allegation 26 – Forklift Roster Incident

Allegation 27 – Early Start Incident

Allegation 28 – Annual Leave Reduction Incident

Allegation 29 – Third 6AM Shift Change Request

Allegation 30 – Booked Leave Removal Incident

Allegation 31 – Forklift Safety Incident

Allegation 32 – Call Credit Incident

Allegation 33 – Public Holiday Shift Incident

Allegation 34 – Fitness for Duty Assessment

Allegation 35 – Excessive Monitoring Incident

Allegation 36 – Medical Appointment Leave Incident 

Allegation 37 – QFE Role Incident

Allegation 38 – First Eishold Harassment Incident

Allegation 39 – Second Eishold Harassment Incident

Allegation 40 – Income Deduction Incident

Drawn from Exhibit A4 – filed by Applicant on 9 March 2023

Allegation 41 – Requirement to Refresh Forklift Training

PRELIMINARIES

1. Mr Osman’s application was made on 7 June 2022 and was the subject of two conciliation conferences before me. After conciliation failed to achieve an agreed result, it was referred by me for determination.

1. The Application was the subject of a mention hearing on 9 March 2023 to determine a number of preliminary matters and a merits hearing was convened by me over six days on 14 – 15 March, 11 – 13 April and 7 July 2023. Final written submissions were received in the matter on 28 August 2023.

1. Mr Osman appeared for himself and Mr Spargo, Landers & Rogers, solicitors, appeared for Australian Post and each of the Persons Named with permission having been given by me to be represented in these proceedings by a lawyer. In this decision I refer to the Persons Named and Australia Post collectively as the Group Respondents.

1. I am satisfied from the evidence that Mr Osman is a “worker” as defined by s.789FC, which provides that the term has the same meaning as in the Work Health and Safety Act 2011 and that Australia Post being a Commonwealth Authority the Commission has jurisdiction to hear and determine Mr Osman’s application.

1. Oral evidence was received from Mr Osman, as well as Mr Steven Mifsud and Mr Jim Bassiliadis on his behalf. Of the Persons Named (as amended), Mr Brett Watkins, Mr David Harrison, Mr Timothy Singleton, Mr Sylvio Bignoux and Ms Katrina Eishold gave oral evidence, with Mr Tony Stavropoulos giving evidence on behalf of all the Persons Named and Australia Post. I did not require Ms Bozzo or Mr Banting to give oral evidence for the reasons explained further in this decision.

1. Ms Mary Long and Mr Bajram Lumani gave evidence under an order for attendance applied for by Mr Osman

1. Before turning to the evidence two notes require being made:

• Unless the context requires otherwise references in this decision to “Mr Harrison” are references to David Harrison, who is Luke Harrison’s father; and

• Mr Osman is a person of colour and is a Muslim. I refer to these matters only for the reason that several of Mr Osman’s allegations refer to discrimination against him for either or both attributes. He is also not a speaker of English as a first language.

Representation

1. On 9 March 2023 I gave permission for the Group Respondents to be represented by a lawyer. For the reasons set out below, I am persuaded that it is appropriate for me to grant permission for the Group Respondents to be represented by lawyers with me reaching this conclusion having regard to the criteria within s.596 of the FW Act as well as the particular facts of the matter and the submissions made by each party to me about representation.

1. Determination of the question of representation requires consideration of s.596 of the FW Act, which is in the following terms:

“596 Representation by lawyers and paid agents

(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a)   it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b)   it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

(3) The FWC’s permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2-3 or 2-6 (which deal with modern awards and minimum wages).

(4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:

(a)   is an employee or officer of the person; or

(b)   is an employee or officer of:

(i)an organisation; or

(ii)an association of employers that is not registered under the Registered Organisations Act; or

(iii)a peak council; or

(iv)a bargaining representative;

that is representing the person; or

(c) is a bargaining representative.”

1. The Group Respondents rely upon the criteria in s.596(2) (a) and (b) as supporting its application, submitting:

• In relation to s.596(2)(a): that the matter is complex and as such would benefit from the involvement of a lawyer to clearly present evidence and assist logistically, thus improving the efficiency of the hearing.

• In relation to s.596(2)(b): the Respondents who are employees of Australia Post have no experience as advocates or in the anti-bullying provisions of the FW Act and are not in a position to represent themselves effectively.

1. The proper interpretation of s.596, was considered by Flick J of the Federal Court in Warrell v Walton[2]:

“[24] A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission...”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.”[3]

1. It is well established that in order for permission for representation to be granted under this section, the Commission must first determine if there exists a jurisdictional prerequisite to the exercise of discretion by virtue of at least one of the three conditions in s.596(2) of the Act being met. The Commission must then decide whether or not to exercise the discretion to grant permission.[4] It is only where the first step is satisfied that the second step arises, which involves a consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.[5] The task of determining whether any of the criteria in s.596(2) is satisfied involves the making of an evaluative judgment akin to the exercise of a discretion.[6] Satisfaction of one of the s.596(2) criterions does not dictate that the discretion is automatically to be exercised in favour of granting permission.[7]

1. In respect of s.596(2)(a), even if legal representation would enable a matter to be dealt with more efficiently, a lack of complexity may still mean that permission is refused.[8] Sheer volume of documents or the existence of extraneous issues does not equate to complexity, with the Commission routinely being required to deal with such factors.[9] While the consideration of complexity must be treated as a matter of significance in consideration of this criterion, ultimately the issue is whether the grant of permission would enable the matter to be dealt with more efficiently.[10]

1. The relevant complexity is that there are several Persons Named with the case requiring evidence from numerous other witnesses from both sides. There is an inherent complexity associated with that number of interests and requirements for evidence. It would be completely unwieldly for the Commission to allow the Applicant and up to 6 others to ask questions of each witness, as well as to make individual submissions. Further the failure of the Applicant to coherently articulate the grounds of his application, the allegations of bullying behaviour, or the orders sought, leaving uncertainty as to the matters to be argued or the means by which his application would proceed, whether in the form of a hearing or determinative conference. I was satisfied that representation of the Group Respondents by lawyers has the likelihood of enabling the matter to be dealt with more efficiently.

1. Satisfaction on those matters is a precursor to a grant of permission for legal representation pursuant to s.596(2)(a).

1. I am not though satisfied of the matters within s.596(2)(b), that it would be unfair not to permit legal representation as the Group Respondents are unable to represent themselves effectively. Senior Deputy President Richards considered the operation of s.596(2)(b) at length in CEPU v UGL Resources (which consideration has not been disturbed by Govender). I do not repeat his consideration here, other than to note it and that he concluded “the totality of the observed circumstances will be important, as will the genuineness of any asserted belief that is said to be held”.[11] I doubt very much from the events associated with this file that no person employed within Australia Post, whether legally trained or not, would be unable to represent the company in these proceedings, at least in the manner of summarising the salient points of the Respondent’s case or to assist the Persons Named in presenting their cases, to the extent their mutual interests aligned. The Group Respondents have therefore failed to satisfy me that s.596(2)(b) is a ground for consideration of a grant of legal representation.

1. As set out above, the decision to grant permission is not merely a procedural step but is a two-step process. First it must be determined if one of the requirements in s.596(2) have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted.[12]

1. Having determined that the only ground enlivened by the Group Respondent’s application is whether a grant of legal representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter, I noted the Applicant’s objection, principally on the ground that he is unrepresented and that Australia Post has internal legal resources it may turn to, I considered that the possibility that there will be a significantly improved handling of the proceedings because of the Group Respondent’s representation is a factor in favour of the discretion being exercised.

1. It follows from a grant of permission for legal representation to the Group Respondents that some measure of unfairness flows to the Applicant, however the need for the Group Respondents case to be presented in an orderly and competent manner likely outweighs the disadvantage to the Applicant, whether actual or perceived. Such disadvantage as accrues can be alleviated through the giving of appropriate assistance by me to the Applicant, such as through assisting him to frame questions of witnesses; explaining matters of procedure to him; and where necessary suggesting he explore topics not initially raised by him or moving on from topics which do not have a significant probative value. On balance, I considered that the matter of potential efficiency to be gained through the grant of representation outweigh the potential for imbalance for the Applicant in the determinative conference. The Group Respondents were therefore granted permission to be legally represented in the forthcoming proceedings in this matter.

Format of proceedings

1. The proceedings were dealt with by way of a Determinative Conference, conducted as informally as possible but with the opportunity for each of Mr Osman and Mr Spargo for the Group Respondents to ask questions of each witness and to make submissions as considered relevant with that course being the most effective and efficient way to resolve the matter.

APPLICABLE LEGISLATION

1. The FW Act’s provisions in relation to anti-bullying are contained within Part 6-4B—Workers bullied at work, with s.789FD setting out the circumstances of when a worker is bullied at work:

“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.”

1. Section 789FF sets out the powers of the Commission to make orders in the event that it is satisfied there is bullying at work:

“789FF             FWC may make orders to stop bullying

(1) If:

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

(b) the FWC is satisfied that:

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

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

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

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

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

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

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

(d) any matters that the FWC considers relevant.”

1. The term “bullied at work” has the meaning given by s.789FD(1) of the FW Act, referring as it does to a worker, while at work, having an individual or group of individuals repeatedly behave unreasonably towards them with the behaviour creating a risk to health and safety. The sorts of behaviours that may be encompassed within the definition are very broad. By no means a complete list of unreasonable behaviour includes; “intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination”.[13]

1. The Commission’s assessment of allegations of bullying at work is an objective assessment of whether behaviour and conduct that occurred was unreasonable with an attendant likely risk to health and safety. “Unreasonable behaviour” is that which a reasonable person, having regard to the circumstances, may consider to be unreasonable.[14]  The definition is to be applied within a Part of the Act dealing with bullying at work:

“… and that must be borne steadily in mind in any consideration as to whether particular behaviours are unreasonable for the purpose of s.789FD(1)(a). A consideration of unreasonable behaviour which loses sight of the objective and subject matter of Part 6-4B may lead to the provisions not achieving their intended purposes, or being used for a purpose that was not intended.”[15]

1. The reference within s.789FD(2) of the FW Act to the effect that the definition of “bullied at work” does not apply to reasonable management action carried out in a reasonable manner is not an exclusion but a reference for the avoidance of doubt. The reference to reasonable management action carried out in a reasonable manner serves to provide guidance in the interpretation and application of s.789FD(1)(a) in circumstances in which it is alleged that management action such as performance management, disciplinary action, allocation of work, restructuring of the workplace and employer directions constituted bullying.[16] Assessment of reasonable management action carried out in a reasonable manner will require consideration of the following;

“[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[17] 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[18].

[50] The specific ‘attributes and circumstances’ of the situation including the emotional state and psychological health of the worker involved may also be relevant[19].

[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’.[20]  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’[21];

·  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[22].

[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.”[23] [24]

1. Having found objectively there was bullying at work, the Commission must then assess, also objectively, whether there is a risk of the conduct continuing, also with a further risk to health and safety. While requiring a causal link, the behaviour does not have to be the only cause of the risk, but a substantial cause of the risk viewed in a common sense and practical way. A risk will be the possibility of danger to health and safety, and not necessarily actual danger[25] , however the risk needs to be more than conceptual:

“[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.[26] 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.[27] The ordinary meaning of ‘risk’ is exposure to the chance of injury or loss.[28] In the sense used in this provision, the risk must also be real and not simply conceptual.”[29] (footnotes in original)

1. After finding a person has been bullied at work the Commission is vested with the discretion to make orders or not. An applicant’s own conduct is a matter that the Commission may consider relevant under s.789FF(2)(d) when considering the terms of an order.[30]

INTERIM CASE MANAGEMENT DECISION

1. On 12 April 2023 I disclosed to the parties an interim decision for the disposition of each of the allegations (the Interim Case Management Decision). The purpose of the interim decision was to endeavour to bring the Determinative Conference to a quicker conclusion than may otherwise have been the case. I followed the Interim Case Management Decision, given on transcript only, with written Directions on 20 April 2023. Differences between the matters set out in the 20 April 2023 Directions and the matters proposed by me at earlier times on the record are as a result of the updates or corrections I considered to be necessary. In the 20 April 2023 Directions I advised the parties:

• 30 of the allegations (or parts of them referring to a particular person only) may be determined by me without the need for further evidence

• several allegations do not require determination or have no reasonable prospects of success, either in total, or in respect of a particular person

• 2 allegations require evidence to be taken from Mr Bignoux

• I should consider allowing the amendment of Mr Osman’s application to make Ms Eishold a Person Named and to determine those parts of three allegations pertaining to her.

1. The allegations to be determined without the need for further evidence:

• 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14

• 16 (as it relates to Mr David Harrison)

• 17 (as it relates to Mr Watkins and Mr David Harrison)

• 19, 20, 21, 22, 24

• 25 (as it relates to Mr David Harrison)

• 26, 27, 32, 34, 35, 37 and 41.

1. Allegations which do not require determination or have no reasonable prospects of success (for the reasons they relate to the conduct of either Mr Luke Harrison or Mr Neil Loring, both of whom are no longer employed by Australia Post and are no longer Persons Named for the purposes of these proceedings):

• 15, 16 (as it relates to Mr Luke Harrison)

• 17 (as it relates to Mr Luke Harrison)

• 18

• 25 (as it relates to Ms Marjorie Hofilena)

• 29 and 31.[31]

1. Allegations requiring oral evidence to be taken from Mr Bignoux:

• 23 and 33.

1. Allegations requiring evidence to be taken from Ms Eishold (should she be joined to the proceedings as a Person Named):

• 36, 38 and 39.

1. Allegations requiring the provision of information about Mr Osman’s leave balances:

• 28, 30 and 40.

1. Allegation 29 was wrongly classified by me in the 20 April 2023 Directions and should have been listed as able to be determined without the need for further evidence.  

CONSIDERATION OF THE ALLEGATIONS

Witnesses

1. In addition to receiving evidence from Mr Osman, the following witnesses provided a written witness statement, however not all gave oral evidence:

• Jim Bassiliadis

• Steven Mifsud

• Steven Dimitrievski (in addition to an initial witness statement Mr Dimitrievski also later filed a joint statement with Mr Jerry Zaldarriaga)

• Tony Stavropoulos

• Timothy Singleton

• Brett Watkins

• David Harrison (in addition to an initial witness statement Mr Harrison filed a further witness statement addressing Allegation 41)

• Sylvio Bignoux

• Katrina Eishold

• Marissa Bozzo

• Alexander Banting.

1. Ms Marissa Bozzo, Mr Alexander Banting, Mr Steven Dimitrievski and Mr Jerry Zaldarriaga were excused by me from giving oral evidence as I did not consider there was utility in hearing oral evidence from each for the following reasons:

Ms Marissa Bozzo and Mr Alexander Banting:

• Ms Bozzo admits through her written witness statement to certain conduct in respect of Allegations 19 and 20 with the matters capable of being determined by me on the basis of the material so far before the Commission.

• Mr Banting admits through his written witness statement to certain conduct in respect of Allegation 21 with the matter capable of being determined by me on the basis of the material so far before the Commission.

Mr Steven Dimitrievski and Mr Jerry Zaldarriaga:

• Mr Dimitrievski’s individual statement is in relation to Allegation 31 involving Mr Loring who is no longer part of these proceedings, with the allegation no longer requiring determination or without a reasonable prospect of success. 

• A joint statement from Mr Dimitrievski and Mr Zaldarriaga is in relation to Allegation 41 only and is not likely to substantially add to the Commission’s knowledge of that allegation or to resolve such inconsistencies as there may be between those who have given oral evidence about the events leading to the allegation.

Observations about the witness evidence and matters of credit

Ahmed Osman

1. I recognise that Mr Osman did the best he could in presenting and testing his claims, taking into account that he is a self-represented applicant. Despite conducting the proceedings as informally as was possible he was required to give his evidence-in-chief to me and to be subject to cross-examination from Mr Spargo, acting for the Group Respondents.

1. While I accept he endeavoured to be truthful Mr Osman’s evidence is not reliable on key points of difference between him and several of the Persons Named. He is also prone to embellish or to over-state both what he says about events or what he says others may have stated to him. He does not accept that he himself makes mistakes, while being unforgiving of mistakes made by others. He frequently, and unduly, attributed poor motives to the actions of others when there is no good evidence that the other person was acting with malice or poor intentions. His recollection on key matters is poor, which is not helped by the fact that so many of his allegations are many years old and very poorly supported by agreed dates or documentary evidence.

1. Mr Osman has difficulty hearing things said to him and appears when told things which conflict with his expectations to not properly understand what is said as it is spoken in English.

1. This observation requires the following context: 

• First, I conducted the entire main proceedings seated at the bar table of Court 1 or Court 12, with the parties seated on the opposite side. Mr Osman was mostly seated no more than 1.5m from me and about 2m from Mr Spargo. He was assisted throughout by an Arabic interpreter, who provided interpretation to Mr Osman as needed and on occasion.

• Second, I readily acknowledge that I speak at a low volume which means representatives sometimes have difficulty in hearing me, especially when seated at the bench in a room as large as Court 1 and Court 12, however as I have mentioned, I was seated at the bar table for the entire merit proceedings.

1. I mention these matters since it is very clear to me that Mr Osman has a hearing difficulty of very significant proportions. Despite being seated so close to him during the proceedings there were innumerable occasions on which I needed to repeat questions, observations, or directions, despite projecting my voice greater than usual.

1. The implication of these matters for Mr Osman’s evidence is two-fold. First, it leads me to conclude that in relation to the events which took place in the workplace he likely misheard or did not hear at all many of the things discussed in the key conversations recollected in his allegations. The likelihood of there being elevated operational floor background noise coupled with his hearing and language processing difficulties means his recollections of conversations is unreliable. Second, when Mr Osman complains that people yelled or shouted at him I doubt that such is yelling or shouting in anger; more likely it was speaking with a raised voice possibly to ensure he heard whatever it was being said. Then again it must be observed that other witnesses also freely used yelling, screaming and shouting characterisations about Mr Osman when they probably meant merely that he spoke with a raised voice.

Jim Bassiliadis

1. Mr Bassiliadis is a former Australia Post employee who gave evidence in support of Mr Osman. He put forward the opinion that Mr Osman displayed a confident attitude not hiding from raising matters of concern. He expressed the opinion that Mr Osman has been targeted because of his confidence in dealing with management and that Mr Osman raised concerns with him particularly about Mr Harrison who “was always trying to catch him out by monitoring his activity on the floor, and to see what he was doing throughout his shift”.[32] He recollected Mr Harrison saying to him about Mr Osman “he’s trouble and wasting my time, I don’t like him, nobody does, Brett wants him out to so fix it”[33] responding to Mr Harrison that if he had an issue he needed to resolve it himself.

1. Mr Bassiliadis also gave evidence that questions would be asked to management meetings about Mr Osman to the effect of “what’s he doing?, how come no one has written him up for work performance issues?”[34] He would respond by saying he did not have a problem with Mr Osman and recollects an occasion in which this interaction took place with Mr Watkins:

“Brett Watkins added by saying “are you with us, or with him”? I replied “this is an issue that does not involve me, and Ahmed works great with me, what seems to be the problem and why isn’t David dealing with it”? Brett stated “David is your line manager and he’s asking you to deal with it” I replied “he’s not doing anything wrong, what is there to deal with”? Brett replied “just fix it””[35]

1. Each of Mr Harrison and Mr Watkins deny these matters. Generally, about Mr Bassiliadis, the Group Respondents submit that his evidence is not directly relevant to any of the allegations, and that his evidence about the various meetings he recollected was vague and confused. They argued as well that he may be a disgruntled former employee having resigned after failing to gain a promotion within Australia Post.[36]

1. I consider that Mr Bassiliadis’ evidence requires being treated with considerable caution. The lack of detail he provides about when key conversations took place causes difficulties, with me unable to pinpoint any of his criticisms and particularly those of Mr Watkins and Mr Harrison with the dates of Mr Osman’s allegations.

Steven Mifsud

1. Mr Mifsud gave evidence that in 2018 he was a Process Leader on the 10.30 PM shift at MGF before transferring to the dayshift in 2019. He worked with Mr Osman for 3 – 4 years. His evidence was that he vaguely recalled Allegation 2 and that he had a meeting with Mr Osman and Mr Singleton in the office after the incident although he cannot recall the content of the conversation that took place.

1. Although he does not remember the particulars of the conversation, he does remember advising Mr Singleton to apologise to Mr Osman for the language that he had used.

1. Mr Mifsud also gave evidence that he raised with Ms Long, his Shift Production Manager, some matters Mr Osman had raised with him during 2018 – 2019 and he along with Ms Long met to allow Mr Osman to discuss his grievances.

1. I accept Mr Mifsud’s evidence.

Bajram Lumani

1. Mr Lumani gave evidence following the issuing of an Order by me at the request of Mr Osman to attend. Mr Lumani gave evidence that he is a long serving employee of Australia Post and is currently employed as an SMO.

1. Mr Lumani’s oral evidence chiefly revolved around Allegation 35 that he saw Mr Harrison standing on the bridge for a few minutes observing Mr Osman and him working.[37] Mr Lumani confirmed that a part of Mr Harrison’s role as Area Manager is to observe people working in the facility and he was unsure if Mr Harrison was observing other people at the time.

1. I accept Mr Lumani’s evidence, while noting that its import is very confined.

Mary Long

1. Ms Long gave evidence following the issuing of an Order by me at the request of Mr Osman to attend. The relevant matters on which she gave evidence are dealt with as appropriate in the consideration below of several allegations. I accept her evidence and prefer it to that of Mr Osman’s to the extent of any inconsistency.

Tony Stavropoulos

1. Mr Stavropoulos is Australia Post’s Head of Workplace Relations and gave evidence about the investigation he conducted into the complaints made by Mr Osman. The limited range of his evidence and the fact there are no significant inconsistencies between his evidence and Mr Osman leads me to accept his evidence in full.

Timothy Singleton

1. Mr Singleton is one of the Persons Named. He worked at MGF as an Acting Process Leader from about 2016 and since November 2021 works at another Australia Post facility, the Tullamarine Parcel Facility.[38] He was required to supervise the work of numerous people, including Mr Osman. He was the focus of many of Mr Osman’s complaints, some of which are quite old and general in nature, meaning that Mr Singleton’s recollection of the events in question was understandably not strong, and not helped by Mr Osman’s lack of precision both about details of the complaint and when they occurred.

1. The concern I hold about Mr Singleton’s evidence relates to denials he gave about swearing at work. In particular Mr Singleton denied strongly the allegations Mr Osman made that he swore at people at work. I consider it likely that his denials are probably too strong and that he may well have sworn to others in the course of his supervision duties. Both Mr Mifsud and Ms Long recollect occasions where he had sworn to others at work, and Ms Long acknowledged he had been counselled on the subject. While stating in his witness statement that he avoids “swearing at work, especially when I am in a supervisor position”[39] he did not acknowledge the matter reported by Ms Long, that he has sworn at subordinates a few times and that he has been spoken to about this.[40]

1. I cannot therefore treat Mr Singleton’s evidence as entirely reliable. At best it must be treated with caution. The caution though is limited since he otherwise endeavoured to answer questions fully and to the best of his recollection, stating when he could not precisely recollect a particular matter.

Brett Watkins

1. Mr Watkins is Australia Post’s Processing Manager North responsible for the activities not only of MGF but also two other facilities, one at Tullamarine and one at Somerton, responsible for 763 employees in total, 254 of whom work at MGF. He is a senior leader with several managers, including Ms Eishold, reporting to him.[41]

1. His evidence included the contextual matter that he does not have much direct interaction with employees at the three sites. The importance of this matter of context is that it assists in understanding those parts of his evidence in which he said he was not aware of particular happenings or did not become involved in matters such as setting rosters. As a senior manager several levels higher than frontline supervisors such as Mr Harrison, such is understandable.

1. For a number of reasons Mr Watkins has had intermittent contact with Mr Osman as a result of the complaints he has made.

1. Mr Watkins’ evidence is generally capable of acceptance, although I note a significant inconsistency within his written evidence which was then not tested in his oral evidence. On the one hand he states emphatically that he is not involved in requests for shift changes which are handled by the manager and shift manager.[42] On the other he gives evidence about two occasions on which he was involved in and decided shift change requests for Mr Osman. First he agreed to an approach from Mr Osman’s union in March 2020 to have Mr Osman remain on the 7 AM shift.[43] Second he was involved in a discussion with Mr Osman that led to agreement that he trial a particular shift change and then told Mr Bignoux that he (Watkins) had agreed to a trial.[44] The statements are not easily reconciled, at least on the evidence before me, as the two instances show he was involved in shift change requests. I assume the error is a slip in drafting his witness statement, however given that the subject was not tested in his oral evidence cannot be confident that such is the case. More likely than it being the case that he is never involved in requests for shift changes the evidence is probably resolved with it being the case that he is occasionally involved, choosing the cases where he is. However that was never put to Mr Watkins in his oral evidence.

1. Because of these inconsistencies and since I discern no reason to view Mr Watkins’ evidence generally as not capable of acceptance, I proceed on the basis that I accept his evidence but not in relation to his involvement in requests for shift changes. I prefer his evidence to that of Mr Osman to the extent of any other inconsistency.

David Harrison

1. Mr Harrison is one of the Persons Named and as it happens a key figure in many of the allegations. He currently works for Australia Post as an Area Manager at MGF, having particular responsibility for the small parcels section, dealing with parcels weighing less than 2kg. Two process leaders report to him and through them a further 46 staff.[45]

1. His evidence was in total impressive with him being prepared to answer fully questions put to him, including those the answer to which may have reflected poorly on him. While evidently sometimes frustrated with the tone or relevance of some of Mr Osman’s questions he nonetheless answered them in some detail, sometimes after querying the necessity to do so or what the matter may be that Mr Osman was focussing on. His recollection of events and dates was superior to Mr Osman and he was prepared to explain to the Commission in some detail what had happened and why.

1. I prefer Mr Harrison’s evidence to that of Mr Osman where there is an inconsistency between the two.

Sylvio Bignoux

1. Mr Bignoux is presently the Manager Verification Notes at MGF and reports to Ms Eishold. Between August 2020 and the end of 2021 he acted as the Shift Production Manager for the day shift, which is where he became aware of Mr Osman. Mr Bignoux is one of the Persons Named and in involved in five allegations.

1. Mr Bignoux’s evidence was that all of the conversations and interactions he had with Mr Osman were him undertaking the requirements of his role. In his current role Mr Bignoux does not have cause to interact with Mr Osman regularly however as a Manager at MGF he does address staff issues that arise from time to time.

1. The relevant matters on which he gave evidence are dealt with in the consideration section of this decision. I accept his evidence and prefer it to that of Mr Osman’s to the extent of any inconsistency.

Katrina Eishold

1. Ms Eishold is presently Operations Manager Network Operations for Australia Post at MGF. Ms Eishold was joined as a Person Named in the proceedings after the commencement of the merits hearing.

1. Ms Eishold gave evidence that she has responsibility for overall management and running of MGF and generally does not have direct interaction with Mail Officers as their queries should be escalated through their direct report managers. She does however deal with Mail Officers on occasion when an issue has been escalated to her or where a Mail Officer has not followed proper process.

1. Mr Osman has alleged that a number of interactions with Ms Eishold constitute bullying which is denied by Ms Eishold. These are not substantiated for the reasons set out below and I accept Ms Eishold’s evidence and prefer it to that of Mr Osman’s to the extent of any inconsistency.

Applications in respect of Neil Loring and Luke Harrison dismissed

1. Before hearing the evidence on Mr Osman’s allegations I was informed by Australia Post that Neil Loring and Luke Harrison had left its employment after which I advised the parties that I would dismiss the allegations in respect of these two people. I did this for the reasons I now set out.

1. The relevant remedy in respect of an application for an order to stop bullying is an order which the Commission considers appropriate “to prevent the worker from being bullied at work by the individual or group”.[46] The discretion to make an order to stop bullying can only be exercised if the Commission is satisfied that:

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

·there is a risk that the worker will continue to be bullied at work by the individual or group of individuals.[47]

1. Therefore, before issuing an order under s.789FF, the Commission must be satisfied there is a risk that the worker will continue to be bullied at work. If the Commission is not satisfied there is a risk that the worker will continue to be bullied at work by the individual or group of individuals, the application must fail.

1. Thus, even if I was satisfied Mr Osman has been bullied at work by either or both of these two Persons Named, I must also be satisfied there is a risk that he will continue to be bullied at work by the one or both of them and that it is appropriate to make an order to prevent him from being bullied at work. Absent the existence of a risk of continued bullying at work by the individual or group of individuals, there is an absence of power to make an order.[48]

Consideration of each allegation

1. I turn now to each of the allegations made by Mr Osman. The allegations are dealt with mostly in numeric sequence (which means that some are not in chronological order), however several are grouped together as the subject or factual matters lend themselves to dealing with the allegations as a group.

Allegation 1 – String cutting incident

1. Mr Osman’s first allegation relates to an incident which took place in August 2019. Mr Osman and Mr Singleton were working on a small parcel machine. Their role was to unload the small parcels, cutting the tags, opening the bags, and tipping the contents of the bag into the small parcel machine.[49] Mr Osman alleges Mr Singleton swore at him when telling him not to cut the bags saying, “don’t cut the fucking bags we pay a fucking $20 bucks for it”.

1. Mr Singleton submits that he explained to the whole team the requirement to cut the tags properly so that the bags could be reused. He says that Mr Osman was working too quickly and was damaging the bags. Mr Singleton took Mr Osman aside and explained to him the requirement to cut the tags properly. Mr Singleton denies having made the comments alleged by Mr Osman and in particular denies swearing at him.[50]

1. For his part Mr Osman denies in his evidence that Mr Singleton ever said to the team of mail officers that they need to be careful when cutting the tags so as to not damage the bag, because then the bag cannot be reused. He also says that Mr Singleton swears in normal conversation.[51]

1. There is also a minor discrepancy in the evidence with Mr Singleton saying that at the time he was an Acting Process Leader, with Mr Osman saying he was not. The weight of the evidence before me though suggests that Mr Singleton was in fact an Acting Process Leader at the relevant time.

1. In the Group Respondents’ reply submissions they argue that Mr Singleton was an Acting Process Leader at the time of the incident, and that it was normal for him to provide instructions to mail officers regarding work matters, including how to correctly cut and tip bags. There was a reasonable basis for Mr Singleton to speak with Mr Osman about his conduct. They speculate that Mr Osman may have misheard Mr Singleton, or “is misremembering given the passage of time or that his evidence about what Mr Singleton said was coloured by his evident disdain for him”.[52]

1. I do not find this allegation to be substantiated, either as to its facts or its characterisation as bullying.

1. The allegation put forward by Mr Osman consists of two essential physical parts; that Mr Singleton was shouting and that within the shouting he swore.

1. Mr Singleton denies shouting at Mr Osman, but agrees he instructed Mr Osman that he was working incorrectly and that he needed to change so as not to cut the bags:

“12. I saw that Ahmed was cutting tags with a green cutter.  Because Ahmed was cutting too quickly he was cutting the bags as well as the tags.

13. I told the team that they needed to cut the tags and to slow down. 

14. Ahmed gave me a look as if he didn't understand my instruction. I wasn't sure if this was because English isn't Ahmed's first language or that he had had trouble hearing me.

15. I then took Ahmed aside to try and explain it to him.  I explained it to him slowly.  I said that if we cut the tags they're no good and we can't reuse them.  Because I have worked with people from a lot of different nationalities and cultures I am used to experiencing language barriers sometimes.”[53] (underlining added)

1. Mr Singleton’s comment above that Mr Osman may not have understood his instruction, perhaps because of language or of hearing impediment resonates in my impressions of Mr Osman as well (elaborated upon by me above). I consider it likely that Mr Singleton did not shout at Mr Osman, but spoke to him firmly and even a bit more loudly than one would in a quiet environment to a person with no history of mishearing. I do not find that the volume or tone of Mr Singleton’s voice on the occasion dealt with in Allegation 1 was unduly loud or aggressive.

1. Mr Singleton is adamant that he did not swear at Mr Osman, although that disagreement appears to be a matter of degree. In response to this allegation and Allegation 2 the denial appears to be use of the word “fucking” with Mr Singleton’s witness statement confirming he used the word “bloody” in connection with Allegation 2. Mr Mifsud, a witness on behalf of Mr Osman, gave evidence that Mr Singleton did in fact swear, albeit somewhat ambiguously giving these answers to Mr Spargo in cross-examination in respect of Allegation 2:

“Do you think you would recall, if he had been swearing in that meeting?---Probably not, because Timothy had a tendency to say the F word a lot.  So it would just be normal language if Tim had sworn.

When you say he had a tendency to say the F word a lot, is that in a – for emphasis, in every day conversation, or directing it someone?---I don't recall Timothy saying the F word to somebody in regards to, let's say, doing a job or something like that.  It was more in just everyday conversation he'd use the F word a lot.

For emphasis as we all might do sometimes with swear words?---Yes, he used to use it quite a lot.”[54]

1. Mr Mifsud though suggested that Mr Singleton’s swearing was somewhat a casual figure of speech:

“MR SPARGO:  (Indistinct) have a go.  When you say you might use it three times in a 10-word sentence, is that in quite a casual, everyday sort of a way?---Yes.

So there's no particular malice or aggression in his swearing?  He's not necessarily angry or worked up, it's just in a casual way; is that fair to say?---Yes.  The experience that I've had with Tim, in talking to Tim, it's more of a casual basis.

Yes.  And I think you said to me, it's not like he would do it at someone, about a job; it would just more be in a casual way.  Is that - did I understand your evidence correctly?---Yes.  I don't know what he would have done with – with someone in regards to Ahmed.  He could have, but I - I've never - I've never heard it.”[55]

1. Ms Long also gave this evidence about Mr Singleton in answer to a question from Mr Spargo:

“Was Mr Singleton in the habit of using the f-word, directed at his subordinates?---He has a few times, yes, and he has been spoken to.”[56]

1. While specifically about another allegation, the evidence from Mr Mifsud and Ms Long stands as a partial explanation for some of the conduct complained of in Allegation 1, at least as it goes to the things said by Mr Singleton. While I accept he was endeavouring to be truthful to the Commission about the words he said, the fact that at least two people other than Mr Osman say he is a habitual or casual swearer suggests it to be likely that when he had to say something to Mr Osman about not cutting the bags, what was said included the words alleged by Mr Osman.

1. In forming my views on this matter, and the other allegations involving swearing, I note there is a difference between bad language in the workplace and swearing at somebody in an outburst and that the latter might be considered offensive.[57] It is relevant that the conduct in question was not an expletive-laden rant in the workplace and objectively the conduct could be seen as “conversational swearing” and “acceptable in a blue-collar environment”.[58] The conduct should be assessed against a culture of swearing in the workplace and the rules of the workplace.[59]

1. In consideration of the evidence of all relevant witnesses, it is likely that Mr Singleton remonstrated with Mr Osman in August 2019 with words to the effect of “don’t cut the fucking bags we pay a fucking $20 bucks for it”, however I do not find that statement to be bullying or an elemental conduct toward a finding of bullying. It was not said aggressively or shouted. What Mr Singleton had to say – don’t incur unnecessary cost – was a reasonable thing for a supervisor to communicate to a team member. In the context of a large industrial workplace where instructions have to be given it was reasonable management action carried out in a reasonable manner. For the avoidance of doubt if I was satisfied the words were unnecessarily shouted or spoken aggressively, or the swearing for the purposes of intimidation I would likely not characterise the conduct as reasonable management action carried out in a reasonable manner.

1. Allegation 1 is not substantiated as an incident of bullying at work.

Allegation 2 – ULD shunting incident

1. Mr Osman’s second allegation is a further complaint against Mr Singleton, stemming from an unspecified date in 2018,[60] earlier in time than Allegation 1. The allegation involves ULD’s which are a large, cage-like container; about 1 m³ weighing about 100 kg unladen and up to 250 kg when loaded.[61] Mr Osman alleges that Mr Singleton shouted at him from a distance to ‘stop’ whilst he was working shunting ULD’s and when Mr Osman queried what the issue was Mr Singleton said to him “don’t fucking shunt the ULD’s you are killing the fucking power lifter”.

1. Mr Singleton concedes that he shouted at Mr Osman on the operational floor to gain his attention when he identified that Mr Osman was creating an unsafe working environment by shunting multiple ULD’s. However, he denies that he swore at Mr Osman although he does recall saying something to the effect firstly of “you can't shunt ULDs, it's unsafe”. Which was not responded to by Mr Osman. He then yelled out to Mr Osman and when they were closer said “You can’t bloody shunt the ULDs, it’s not safe. You’ll hurt somebody. I will let you off with a warning now but don’t let me catch you doing it again”. Mr Singelton says Mr Osman acknowledged this by saying “alright”.[62] Mr Singleton’s evidence is that he held a safety concern seeing several ULD’s being shunted at a time with a powerlifter.[63]

1. Mr Osman later raised a complaint alleging he was being picked on because of his race. Mr Singleton denies the accusation that he was picking on Mr Osman because of his race and asserts that his shouting to gain Mr Osman’s attention was necessary to stop him immediately from performing an unsafe act.[64]

1. The complaint made by Mr Osman is recalled by Mr Singleton, but not by Ms Long, the person to whom he complained and who is also said by Mr Osman to have witnessed the events. She concedes that the events he refers to could have occurred, but that she does not recall them.[65]

1. Ms Long though accepts that shunting multiple ULD’s is a serious safety incident and that it would have been appropriate for Mr Singleton to use a raised voice to gain Mr Osman’s attention as it is a noisy work environment.[66] She also gave this evidence about the allegation of swearing in cross-examination by Mr Spargo:

“Now, Mr Osman says, and Mr Singleton denies, that Mr Singleton did not merely yell and stop, but he also yelled at him, 'Don't fucking shunt the ULDs, you are killing the fucking power (indistinct)', and he swore at him in that aggressive way.  If that had - would that be - if that sort of behaviour had occurred do you expect you would remember it, because it would be quite out of the ordinary?---There's quite a bit of swearing that goes on.  I don't recall the incident and, like I said to Ahmed, I don't dispute that it happened.

Mr Singleton denies that he swore at Mr Osman, in the process of telling him to stop. Now, you say you don't recall the incident but - - -?---If I was there I would have told Tim about his language.”[67]

Further:

“Was Mr Singleton in the habit of using the f-word, directed at his subordinates?---He has a few times, yes, and he has been spoken to.”[68]

1. Mr Mifsud, a co-worker of Mr Osman who gave evidence on his behalf recollected the incident and that he advised Mr Singleton that he should apologise to Mr Osman for the way he spoke to him, even though he did not see the event firsthand but was involved in a brief meeting after the incident.[69]

1. In the Group Respondents’ closing submissions it is argued that Mr Osman agreed in cross-examination about the importance of workplace safety and the responsibility of all employees to call out unsafe practices, but that he “disputes Mr Singleton's ability to comment on correct and safe process”.[70] The Group Respondents’ also submit “that it will generally be reasonable for anyone, but particularly someone in a leadership position, to call out unsafe behaviour. Indeed, this is a key responsibility of leadership positions in workplaces such as the MGF”.[71]

1. The evidence allows a finding that Mr Singleton shouted out to Mr Osman a direction that he not shunt the ULD’s, with Mr Singleton’s own evidence agreeing he did so and that he swore when doing so, using the word “bloody”. The factual point of difference between the two are the words used by Mr Singleton. For similar reasons as set out above, I find it likely that he indeed did shout out “don’t fucking shunt the ULD’s you are killing the fucking power lifter”.

1. Mr Singleton asserts that the direction was followed by an explanation and a warning, along the lines of “it’s not safe. You’ll hurt somebody. I will let you off with a warning now but don’t let me catch you doing it again”. It is likely these things were said and understood by Mr Osman, which likely explains why he was so aggrieved about the incident.

1. I am not sure in the context of Mr Osman’s many complaints about his co-workers that a bullying complaint would have been avoided if Mr Singleton had merely stated with a raised voice “don’t shunt the ULD’s you are killing the power lifter”. The absence of swearing would still leave the fact that Mr Osman was directed and somewhat loudly and I consider it likely that those elements would still have led him to object.

1. In finding Mr Singleton likely swore I do not consider his overall evidence to be unreliable. He may be embarrassed to admit to the Commission that is how he communicated or may think he will get into trouble with Ms Long or others if he conceded that is what occurred. Mr Singleton’s overall evidence was given in a way in which suggested he was endeavouring to be open and honest to the best of his recollection and, save on this matter, he was willing to accept propositions about his conduct.

1. The more important question is whether either the content or the tone of Mr Singleton’s communication to Mr Osman was unreasonable.

1. They were not.

1. The content of Mr Singleton’s direction was reasonable, whether or not embellished with the words attributed to him by Mr Osman. Shunting multiple cubic metre sized ULDs each potentially with a mass of up to 250 kg is an inherently dangerous activity and cannot be thought a good idea. Mr Singleton was both within his rights and his obligations to direct Mr Osman to stop immediately and to not continue shunting. Coupling the direction with a caution or warning is also not unreasonable in the context of MGF operations with large and potentially dangerous powered equipment.

1. It is possible that any directive communication can be tonally unreasonable, whether or not coupled with shouting or swearing. However the evidence before me does not support either that Mr Singleton’s tone was menacing or even unreasonable. He accepts that he raised his voice and directed Mr Osman. Even so, Mr Singleton’s evidence is that this was done twice: when the first direction was not responded to, he came closer to Mr Osman and stated the direction again.

1. The preponderance of evidence before me is that the operational floor is a noisy environment and that Mr Osman has hearing or language difficulties. Those circumstances mean it was highly likely that Mr Osman did not hear the first direction and that it was reasonable for Mr Singleton both to move much closer to Mr Osman and repeat his direction, but with a higher-than-normal speaking volume (that is, a raised voice).

1. Allegation 2 is not substantiated as an incident of bullying at work.

Allegation 3 – Earphone incident

1. In his third allegation Mr Osman alleges that whilst he was working on country mail on chute 5 lifting the ULD upwards whilst wearing an earphone in one ear, Mr Singleton shouted at him from a long distance and pointed at his ear telling him to remove the earphone. Mr Osman also alleges that Mr Singleton micromanaged him for half an hour.[72]

1. Mr Singleton stated in his witness statement that he does not recall this incident and submits that it did not happen as country mail is on chute 1 not chute 5; however in his oral evidence he agree he recalled an event in which he had told Mr Osman to take out an earbud.[73] Mr Singleton says in his witness statement that if he had observed Mr Osman wearing an earphone he would have asked him to remove it as they are against industry standard practice and create a risk to health and safety. He also stated that he would not have had time to observe Mr Osman for a period of 30 minutes due to his other obligations during his shift.[74] Mr Singleton’s oral evidence includes that he told Mr Osman to take out his earphone, but that he disagreed he had shouted.[75]

1. The Group Respondents’ closing submissions refer to Mr Osman accepting “that he did not know when the incident occurred or whether it was before headphones were prohibited on the operational floor, as he is unable to specify when this incident occurred” and that “there is lots of heavy machinery and equipment being used at the MGF and that headphones are deemed unsafe”.[76]

1. While evidence was not directly led to the effect that headphones are not permitted on the operational floor for safety reasons or when the prohibition came into effect, with the matter being referenced merely by a question from the Group Respondent’s lawyer Mr Spargo who suggested to Mr Osman “that there's a rule that staff should not wear headphones while using load shifting equipment, because that's a safety issue”[77] I accept that such a rule is in place.

1. Mr Osman’s evidence about Allegation 3 is, at best, patchy and potentially unreliable. He has difficulty positioning the event either by reference to a firm date or the task he was undertaking at the time. Mr Singleton’s evidence is not much better; first not recalling the event in his witness statement, and then accepting there may have been such an interaction but arguing he had not shouted at Mr Osman.

1. If I accept Mr Osman’s contentions as correct – that Mr Singleton shouted at him to take out his earbud – I cannot for two reasons of context make a finding that it was unreasonable conduct. The first matter of context is the obvious; the operational floor is noisy with a lot of heavy machinery in use. Isolating oneself from the surrounding environment by listening to music, radio or podcasts would hardly be working safely and I accept what Mr Singleton had to say to the effect that the use of headphones “would pose a safety issue because the individual wouldn't be able to hear the equipment operating around them or instructions properly”.[78] The second matter of context is that any communication with Mr Osman will often require a raised voice as a result of his hearing difficulties, and especially so when the speaker is not next to him and there is background noise. This is not to say that no incident of shouting at Mr Osman can be unreasonable, merely that I am not satisfied it was in relation to this allegation.

1. Allegation 3 is not substantiated as an incident of bullying at work.

Allegation 4 – Close standing incident

1. Mr Osman says about his fourth allegation that he was working on a machine known as the SPSS Induction No.6 and he was speaking to a third employee Rowel who was driving a forklift. Another employee named Jon was working in front of him. Mr Osman alleges when he and Rowel finished their conversation Mr Singleton came and stood close behind him. Mr Osman submits that the distance between Mr Singleton and himself was so close that he was not able to turn around to see who was standing behind him as they would have made physical contact.[79]

1. Mr Osman opted to sit on a table as he could not turn around at which point Mr Singleton allegedly said to Mr Osman “are you fucking distracting my staff”.

1. Mr Singleton recalls this event in his witness statement but disputes that Mr Osman was working with Jon rather he says that it was Ben Casper who was present. His recollection of the incident is that he was supervising his team on the casterdeck. He was about 15-20 metres away from where Mr Osman was working on a forklift. Mr Osman was being loud and distracting other staff, “being a hooligan”.[80] Mr Singleton went over to Mr Osman asked him to tone down his behaviour to which Mr Osman agreed by saying “ok”.

1. Mr Singleton submits that around 30 minutes later Mr Osman was still behaving in a loud manner. Mr Singleton went over to Mr Osman again and asked him to tone down his behaviour. Mr Singleton says that he kept his distance from Mr Osman.

1. Mr Osman continued to act in a loud and distracting manner and Mr Singleton went over to him a third time and said “I am concerned because you're so loud, you need to tone it down. Do you have a condition that means you can't control yourself talking loudly?" Mr Singleton believes he was standing closer to Mr Casper than Mr Osman. Mr Singleton then instructed his team on the casterdeck to try and ignore Mr Osman.

1. In his oral evidence Mr Singleton submits that he went up to Mr Osman and spoke to him asking him to tone it down because he was being too loud and distracting the workers on the casterdeck. Mr Singleton denies that he was aware at the time that Mr Osman was uncomfortable with being approached by him. He denied that any part of his direction to Mr Osman involved swearing.[81]

1. Mr Osman puts the proposition to Mr Singleton that he should have approached his supervisor if there was an issue rather than approaching Mr Osman directly. The response from Mr Singleton was that he approached Mr Osman as he was responsible for both the small parcel machine and the casterdeck.

1. Mr Osman has not directly contradicted the central part of Mr Singleton’s response to the allegation, namely that he was being noisy and distracting and that Mr Singleton had to speak with him three times. The point of difference between the parties then is that Mr Singleton denies that he swore at Mr Osman and denies that he was standing as close to him as alleged.  The evidence on those matters is dimmed with the passage of time and is insufficient to establish that what took place was inappropriate let alone unreasonable.

1. Against the context that Mr Singleton had to speak with Mr Osman three times I find his direction to be reasonable.

1. Allegation 4 is not substantiated.

Allegation 5 – Crying co-worker incident

1. In his fifth allegation Mr Osman advances that he witnessed an employee Emily Clow crying. He stopped his work and approached her and asked if she was okay. Mr Osman says that she did not respond to his question, and he went to a Process Leader Lina Aualii and reported what he had witnessed.

1. At the end of the shift Mr Singleton called the fixed term staff with the exception of Ms Clow into a meeting and advised that they had received an extension on their fixed term contracts. Mr Singleton offered an opportunity to an employee Dani to speak and also an employee Angela to speak on what had occurred with Ms Clow. Mr Osman asked if he could speak and Mr Singleton responded “you shut up, I know you’re a rude person and don’t respect the elders and you reported me to Steven the other day and Steven advised me to apologize to you but I’m not that kind of person to apologize to you.”[82]

1. Mr Osman says that this made him feel frustrated and he dropped his hat on the floor and Mr Singleton said “hey, relax, relax that is what you are”.

1. Mr Singleton’s recollection in his witness statement accounts that Ms Clow got along well with Mr Osman however Mr Osman always clashed with Angela Mackintosh. Ms Clow approached Mr Singleton because she did not like the way Mr Osman had spoken to her as it was annoying Ms Mackintosh. Ms Clow reported that Mr Osman would approach her in front of Ms Mackintosh and hug her or say thinks like “you’re looking so beautiful today”.

1. Ms Clow when asked if the behaviour made her uncomfortable responded “no”. Ms Mackintosh when asked about the behaviour said “I just ignore it now, I’m here to do my job and get paid, I’m not here to stuff around.” Neither of those two gave evidence in these proceedings. For his part Mr Singleton reports that Ms Clow and Ms Mackintosh had a falling out which he believes was started by something to do with Mr Osman. I do not rely upon these untested assertions.

1. Mr Singleton spoke to Mr Osman and said “you need to stop stirring the pot between them. You know they’re having a fight, don’t get involved.” Mr Singleton called Ms Clow and Ms Mackintosh into a meeting to attempt to resolve the situation. Mr Osman was also invited as a witness or support person. During the meeting Ms Mackintosh and Mr Osman began arguing and when Mr Osman asked to say something Mr Singleton responded “no you’re here to listen to the story, I’ll talk to you after.”

1. Mr Osman then made a comment about Mr Singleton not apologising to him for alleged incident number 2 to which Mr Singleton responded “Mate, that’s a different subject, I won’t apologise for calling you out for doing an unsafe act.” Mr Singleton denies that he told Mr Osman that he was rude or a rude person rather he submits that he said “you have to be quiet, you can’t just interrupt. Your interrupting is rude. You’ll get your chance to talk, but not now.” Mr Singleton does not recollect that Mr Osman dropped or threw his hat onto the ground.

1. In his oral evidence Mr Singleton denied that he said anything of the type that he is accused of by Mr Osman.[83] His account of the event was that he asked Mr Osman to be quiet as he was there as an impartial witness to the incident between Ms Clow and Ms Mackintosh. The parties agree that words were said but the point of difference between the parties is what was said as Mr Singleton denies that he told Mr Osman to “shut up” and denies calling him “a rude person”.

1. It is obvious from the evidence that the interaction between the two men was firm and robust, irrespective of whether Mr Singleton actually described Ms Osman as being rude. Mr Singleton’s own evidence supports that he told Mr Osman not to speak, stating “I asked you to be quiet because you were a witness, and as a witness you need to be there for both sides of the story, to hear both sides” and agreeing he recollected saying to Mr Osman “you’re here to listen to the story, I’ll talk to you after”.[84] That communication is a firm instruction, given through an exercise of organisational power and it would have been understood by Mr Osman as such.

1. The Australia Post investigation into Mr Osman’s complaints spoke with a number of people involved in this particular incident and weighed the circumstances. The investigation notes that Mr Singleton puts forward that he was attempting to mediate the matter between disputing employees; that he called Mr Osman into the meeting as a witness and that during the discussion Ms Mackintosh and Mr Osman started arguing; and that he denies he said to Mr Osman that he was a rude person. Mr Singleton apparently also mentioned to the investigator that the date of the allegation does not align as Mr Osman was on dayshift at the time. Ultimately the investigation made the following determinations:

“Consideration of Evidence

In arriving at my findings, I have taken into account all the information made available to me.

·I am satisfied that there was a meeting where Tim Singleton was attempting to resolve this matter between Emily and Angela

·Tim Singleton denies saying to Ahmed Osman that he is a rude person.

·Based on the differing accounts and the witnesses could not recall the discussion I am unable to establish that Tim Singleton spoke inappropriately to Ahmed Osman.

Finding – Based on all the available evidence I find the Allegation is Unable to be Proven.”[85]

1. The nature of workplace investigations is that there will be differing recollections from witnesses either because they genuinely do not recollect in the same manner, or that it is convenient to embellish the circumstances or not to recall. However there is a need for the investigator to get to the bottom of what occurred on the balance of probabilities, if nothing else. The findings set out above that the investigator was unable to establish that Mr Singleton spoke inappropriately may have been a product of what was before the investigator, which may well have not included some of the material now before me.

1. What is unambiguously before me is that Mr Singleton agrees he said to Mr Osman “you’re here to listen to the story, I’ll talk to you after”. The evidence on the subject is not that it was a request to allow another person to speak first or was a plea to calm down, but rather it was a direction. As a result, I am not able to adopt the investigator’s finding that there was no inappropriate communication; plainly there was to some level.

1. Although the direction could and should have been given more politely it was not. It is unlikely the communication conforms with Australia Post’s policies about respectful communication.

1. That being said, I do not find that the communication by Mr Singleton was unreasonable conduct on his part or that the nature of the communication carried with it a risk to health and safety. The context in which Mr Singleton delivered the direction was a disputation between three other employees, of which Mr Osman was one. He found himself having to remonstrate with them about what had gone on and what should be done about the circumstance.

1. It is unclear what Mr Singleton means with his evidence that he told Mr Osman “to be quiet because you were a witness, and as a witness you need to be there for both sides of the story, to hear both sides”[86] Plainly most witnesses speak about what they have seen and heard rather than listen to the experience of others. However, taking the initial direction at face value that Mr Osman should listen to what has been said and then speak to Mr Singleton later is not an unreasonable position for a manager to take in the course of a meeting dealing with matters such as this. The nature of communications with Mr Osman are such that there will be occasions where his contribution is potentially not only not needed at that time but also potentially unhelpful to the task at hand. I do not accept from the evidence before me that the direction in question could reasonably be construed to carry with it a risk to health and safety. The words were not said aggressively. They were not said in a way which made it clear that Mr Osman’s contribution would never be taken into account.

1. I do not find Allegation 5 to be substantiated.

Allegation 6 – No talking instruction incident

1. Through his sixth allegation Mr Osman puts forward that Mr Singleton instructed Mr Jesse Fyfe and Mr Aaron Forster to not speak to him. He does not put forward a date or date range in which this alleged conduct occurred.

1. Mr Osman says that he did not hear Mr Singleton say to Mr Fyfe and Mr Forster not to speak to him. He says that Mr Fyfe’s behaviour towards him changed, and he was told of what Mr Singleton said to Mr Fyfe and Mr Forster.[87] After giving evidence that “Tim Singleton, he never, ever wants me to be in such kind of situation, to be happy or smile or laugh or whatever, so that’s why I believe”. Mr Osman continued that he, Mr Fyfe and Mr Forster would have a code word for when Mr Singleton was approaching.[88]

1. Mr Singleton denies that he ever told Mr Fyfe and Mr Forster not to speak to Mr Osman.[89] The three men would work together on night shift and Mr Singleton told them "I don't mind if you have a laugh and a joke as long as the work gets done."[90]

1. The Group Respondents submit that there is no direct evidence of the instruction being given and note that Mr Osman admitted that he was drawing an inference based on his perception of the actions of his coworkers. They submitted that Mr Osman “negatively interprets everything Mr Singleton does and is unable to view his actions objectively”.[91]

1. I do not accept Mr Osman’s attribution of motive to Mr Singleton; it is not grounded on any rational evidence and is merely Mr Osman’s speculative thoughts about Mr Singleton. Even taking into account the beneficial purpose of the anti-bullying provisions there is no warrant to accept ungrounded speculation of motive as an explanation for actual demonstrable behaviour.

1. I do not find Allegation 6 to be substantiated.

Allegation 7 – Pillar stretching incident

1. In his seventh allegation Mr Osman submits that he was using a pillar in the building to stretch, and that he was bullied when Mr Singleton told him not to do so as the pillar could fall. He also submits that Mr Singleton threatened him by repeatedly saying he would report Mr Osman who would lose his job as a result.[92] Various dates are put forward about when the incident is said to have occurred. The Applicant’s Outline of Submissions on this matter simply say that it occurred “one day”.[93] Mr Singleton says in his witness statement that he is not sure when the incident or incidents are said to have occurred.[94] The Australia Post investigation report into Mr Osman’s allegations say that it occurred in 2019.[95] In his oral evidence before the Commission Mr Osman for the first time put forward that it occurred multiple times:

“58. The AFP spoke to spoke to all present before asking to speak with me outside of the room..  The officers told me that they believed the incident was a miscommunication.  They told me they had come so quickly because they had though there was a severe physical altercation taking place which involved more than two people.  

59. Just before 7.45am, I escorted the AFP officers to their cars as they were leaving.  The officer role me that the incident nothing to do with them.  He asked me if Ahmed has a mental health concern.  He told me that they had been trying to reason with Ahmed, using words to the effect of "you're wasting our resources" and "there's no threat to your safety".  The officer also asked me if Ahmed could work at another location.  I advised the officer that Australia Post had offered Ahmed the opportunity to trial jobs at other Australia Post locations, however Ahmed had not taken us up on the offer.”[252]

1. The core facts of this situation are not especially in dispute; Mr Osman reacted to being told to undertake training for the day; there was an altercation with Mr Harrison; Mr Osman enlisted the assistance of a union delegate and health and safety representative; he reacted further to Mr Harrison and called the AFP who attended and then left without taking any formal action.

1. There is no discernible unreasonable conduct on the part of Mr Harrison associated with this allegation. The notification that Mr Osman needed to have further forklift training is or should be an unremarkable corporate event. It may not have been what Mr Osman was expecting to do that day and he may have thought he did not require such training; however what was asked of him is not a matter that should cause distress let alone accusations of bullying.

1. Mr Osman over-reacted to the events, clearly.

1. He has not offered a clear explanation as to why he acted in the manner he did, or why the actions of Mr Harrison were unreasonable and should be found by me to be bullying conduct. He has put forward no evidence that would suggest he had been suspended from work.

1. Mr Osman may have been ill at the time, or his dislike of Mr Harrison may have heightened to such a level that he could not rationally deal with Mr Harrison. Those things though are not matters within the evidence before me.

1. I accept the evidence of Mr Harrison and Ms Eishold in the manner they have described in their witness statements and oral evidence. I prefer their evidence on this subject to that of Mr Osman.

1. There is no basis within the evidence before me for Mr Osman to have called the AFP. He was not under threat at the time from Mr Harrison or anybody else, real or reasonably apprehended. Mr Harrison was trying to disengage from the situation; however being sighted by Mr Osman his presence triggered a strong reaction from Mr Osman which included him calling the AFP.

1. Mr Osman’s actions in these events were objectively unreasonable. His complaints about Mr Harrison’s actions had no foundation; there was no rational basis to not comply with the direction to undertake refresher gas forklift training or to see it as unreasonable conduct on the part of Mr Harrison specifically or some other person generally; and there was no rational basis to be afraid of Mr Harrison or anyone else and call the police.

1. I find that there was no unreasonable conduct on the part of Mr Harrison or Ms Eishold or any other of the Persons Named. There conduct was reasonable and proportional. In the first stage of the dispute Mr Harrison was doing nothing more than explaining what was directed and why. In the second stage of the dispute after Mr Osman became emotional Mr Harrison and Ms Eishold endeavoured to defuse the situation.

1. Allegation 41 is not substantiated.

SUMMARY OF FINDINGS

1. From the above I have found:

·     The allegations in respect of Neil Loring and Luke Harrison (Allegations 15, 16, 17 and 18 as they relate to Mr Luke Harrison and Allegation 31 as it relates to Mr Loring) have not been determined as the two Persons Named are no longer employed by Australia Post.

·     Allegation 25 as it relates to Majorie Hofilena has not been determined as she is not a Person Named.

·     None of the other allegations have been substantiated as bullying conduct, albeit that I have found unreasonable conduct on the part of Mr Harrison in respect of Allegation 10.

1. It follows from these findings that bullying as defined in the FW Act cannot be found, with the consequence that orders cannot be contemplated in respect of any of the Persons Named in Mr Osman’s application. His application must therefore be dismissed and an order doing so is issued at the same time as the publication of this decision.

RECOMMENDATION

1. It is inescapable from the evidence that the relationship between Mr Osman and his supervisors, managers and coworkers is fraught to the point of collapse. Managers manoeuvre carefully around him so as not to provoke further complaints. Other staff who have been the subject of complaints actively avoid him. For example, Ms Bozzo’s witness statement highlights that since February 2020 she would avoid making contact with him, and Ms Eishold gave evidence that when discussing his annual leave requests she told him that he was given special consideration:

“I told Ahmed that he had been dealt with differently and given special consideration.  In saying this I meant that, in light of the bullying complaint, Ahmed was being given preferential or better treatment than other staff.  …  The special consideration was to take different approaches to certain matters, e.g. for me to deal with Ahmed directly on leave and other issues he might raise, given he raised concerns about his more direct managers.”[253]

1. Of course, the fact of differential treatment can be found to be bullying if it met the legislative requirements set out in the FW Act. However, I am satisfied that such is not the case here; rather than the differential treatment being unreasonable it is instead reasonable with the way Mr Osman is treated being a product of his behaviour.

1. Much of Mr Osman’s conduct as in evidence before me has been unreasonable.

1. He frequently makes complaints about workplace events that in most instances should not lead to complaints. He does not let go of matters that have been the subject of discussion and attempted resolution by his supervisors and managers. The most obvious example of this is his campaign to move to a shift with a 6 AM start time, which was ultimately successful from 18 October 2022 when he moved to the earlier shift after the 7 AM shift was abolished.[254]

1. He lacks the insight and resilience to see that much of what has been complained of in these proceedings has often been the result of his own conduct or that he may need to simply work with the actions of others, including the directions and decisions of his supervisors and managers. He shows no awareness that either his hearing loss or state of mental health is impacting on his relationships at work or may be compounding his perceptions of negative experiences at work.

1. The breadth of people complained about by Mr Osman and the time period over which the complaints have been made likely creates an ongoing problem for him being able to rebuild and maintain constructive working relationships. There is little question that the viability of his continued employment with Australia Post will depend on Mr Osman putting his complaints and these proceedings behind him and not making further complaints with little justification.

1. These circumstances lead me to RECOMMEND the following steps be taken in order to ensure Mr Osman’s continued employment:

1. Australia Post should explore a move for Mr Osman from MGF and if one is offered he should accept it. Discussion of a change to his work location is dealt with in Mr Watkins’ evidence:

“41. I spoke to Ahmed [in March 2023] and offered him the opportunity to transfer to the Melbourne North Parcel Delivery Centre in Somerton if it would assist him from a mental health perspective.  I thought this offer might be enticing to Ahmed as moving to another facility would mean that Ahmed would no longer has to work with any of other persons named in his application.  I am responsible for the Melbourne North PDC, but as I have said earlier in this statement I do not have much direct interaction with employees at the sites, other than with the leadership team.

42. I told Ahmed that he could maintain his 6am shift, if he wanted to take up the offer.

43. The Melbourne North PDC is only around 5 minutes from Ahmed's home, so I also thought this might be more convenient for him as well.  

44. Ahmed was apprehensive.  He told me that he doesn't want to move away from his friends at MGF, but said he would consider it. 

45. I have not heard back from Ahmed yet in response to the offer.  Ahmed is welcome to remain at MGF but I thought this could be a suitable alternative for him.”[255]

This proposition should be renewed or an alternative put forward and Mr Osman should actively consider the proposal, from the perspective that it could give him a clean break from the concerns that have afflicted his time at MGF.

There will unlikely be a perfect world in which none of the Persons Named or others for whom he has a disaffinity work at a new site. That situation should not be a reason for a change not to take place.

This recommendation is advanced not only out of concern for re-establishing a viable working relationship into the future with Mr Osman’s coworkers and supervisors, but also out of recognition for the consequences of him continuing to work with some of the people named in these proceedings, and especially Mr Singleton and Mr Harrison. Whereas Mr Singleton relocated to another Australia Post facility in November 2021, Mr Harrison remains at MGF. I consider it potentially a risk to the health and safety of all three men for them to be in the same reporting line for the foreseeable future.

1. Australia Post should explore the availability of training for Mr Osman on the subjects of self-awareness, complaint advancement and conflict avoidance. Many, even most, of the allegations dealt with in this decision could have been avoided through a shared language between Mr Osman and his direct supervisors about how they see each other and how conflict may be avoided.

   Much of the conflict that has arisen is petty and to the extent that it is two-sided probably reflective of a likely poor workplace culture.

   For his part, Mr Osman seems not to understand that his hearing loss causes difficulties both to him as well as other seeking to communicate with him. He also does not seem to understand that not every grievance requires pursuit to the ultimate limit or that the grievance might have simply arisen because of a basic human error, rather than it being the product of a conspiracy against him. He needs to have tools and a language for progressing and resolving future workplace complaints.

   I consider that training on these matters may be of assistance. Training should not only be offered, but accepted and undertaken by Mr Osman.

2. Mr Osman should provide to and discuss with Ms Eishold, or another manager at the same level if he moves work location from MGF, an independent medical report which cogently identifies the extent matters affecting his health. Australia Post should arrange for the obtaining of such a report and Mr Osman should give the appropriate consent for it to be obtained and its results to be transmitted to Australia Post, provided its handling is then the subject of appropriate privacy safeguards.

   This should not be undertaken in such a way that suggests an inability on the part of Mr Osman to undertake the inherent requirements of his job, but rather in a manner than assists both he and his supervisors understanding the issues he faces at work as well as developing some strategies to overcome those problems.

1. The Recommendations are for the action of Australia Post and Mr Osman. I invite each to give active consideration to them and to advise the Commission and each other of the acceptance of the above within 14 days of the publication of this decision, that is by Thursday 23 November 2023.

CONCLUSION

1. For the reasons set out above, Mr Osman’s application is dismissed and an order doing so is issued at the same time as the publication of this decision.

COMMISSIONER

Appearances:

Mr A. Osman for himself
Mr W. Spargo for the Group Respondents

Hearing details:

2023.
Melbourne.
14 – 15 March, 11 – 13 April and 7 July.

Final written submissions:

Applicant 31 July 2023
Group Respondents 28 August 2023

[1] Exhibit R6, Witness Statement of Brett Watkins, dated 8 March 2023, filed 8 March 2023, [3]; Exhibit R10, Witness Statement of Katrina Eishold with three attachments, dated 12 May 2023, Statement filed 13 June 2023 and attachments filed 10 July 2023, [4].

[2] [2013] FCA 291.

[3] Accepted by the Full Bench of the Commission as the correct approach to s.596 of the Act in New South Wales Bar Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663.

[4] Appellant v Respondents[2014] FWCFB 4297; Emily Oratis v Melbourne Business School[2014] FWCFB 3869, [5].

[5] ERGT Australia v Mr Kevin Govender[2021] FWCFB 268, [48].

[6] Asciano Services Pty Ltd v Hadfield[2015] FWCFB 2618, [19].

[7] ERGT Australia v Mr Kevin Govender[2021] FWCFB 268, [48].

[8] King v Patrick Projects Pty Ltd[2015] FWCFB 2679, [15].

[9] Ibid, [17].

[10] Singh v Metro Trains Melbourne[2015] FWCFB 3502, [16].

[11] [2012] FWA 2966, [21].

[12] Warrell v Fair Work Australia [2013] FCA 291, [26].

[13] Amie Mac v Bank of Queensland Limited & Others[2015] FWC 774, 247 IR 274, [99].

[14] Re SB[2014] FWC 2104, [42].

[15] Amie Mac, [89].

[16] Ibid, [95].

[17] Re SB[2014] FWC 2104, [48].

[18] Ibid, [49].

[19] Ibid, [50].

[20] Bropho v Human Rights & Equal Opportunity Commission (2004) 135 FCR 105, [79].

[21] See Von Stieglitz and Comcare [2010] AATA 263, [67].

[22] See the discussion in Department of Education & Training v Sinclair [2005] NSWCA 465.

[23] Keen v Workers Rehabilitation & Compensation Corporation (1998) 71 SASR 42.

[24] Re SB[2014] FWC 2104.

[25] Re SB[2014] FWC 2104, [44] – [ 45].

[26] Newcastle Wallsend Coal Co Pty Ltd v Workcover Authority (NSW) (Inspector McMartin) [2006] NSWIRComm 339; 159 IR 121, [301].

[27] Thiess Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252, 78 NSWLR 94, [65] – [67]; Abigroup Contractors Pty Ltd v WorkCover Authority of New South Wales (2004) 135 IR 317, [58].

[28] Macquarie Concise Dictionary definition.

[29] Ms SB [2014] FWC 2104.

[30] Burbeck v Alice Springs Town Council[2017] FWC 4988, [139], [154].

[31] In preparing this decision I realised Allegation 29 required determination and could not be dismissed on the ground that it lacked reasonable prospects of success – see discussion below in relation to Allegation 29.

[32] Exhibit A2, Witness Statement of Jim Bassiliadis, undated, filed 13 February 2023.

[33] Ibid.

[34] Ibid.

[35] Ibid.

[36] Group Respondent’s Closing Submissions, dated 28 August 2023, filed 28 August 2023.

[37] Transcript, PN 2084.

[38] Exhibit R5, Witness Statement of Timothy Singleton with one attachment, dated 8 March 2023, filed 8 March 2023, [2] – [3].

[39] Ibid, [16].

[40] Transcript, PN 3102.

[41] Exhibit R6, Witness Statement of Brett Watkins, dated 8 March 2023, filed 8 March 2023, [3].

[42] Ibid, [27].

[43] Ibid, [5].

[44] Ibid, [21].

[45] Exhibit R7, First Witness Statement of David Harrison with two attachments, dated 8 March 2023, filed 8 March 2023, [3] – [4].

[46] Fair Work Act 2009 (Cth) s.789FF.

[47] Ibid, ss.789FF(1)(b)(i) and (ii).

[48] Willis v Capital Radiology Pty Ltd T/A Capital Radiology; Ms Peita Carroll; Ms Marie Gibson; Mr Dominik Kucera⁴

(Willis) [2016] FWC 716 at [15].

[49] Exhibit R5, Witness Statement of Timothy Singleton with one attachment, dated 8 March 2023, filed 8 March 2023, [10].

[50] Transcript, PN 3788.

[51] Ibid, PN 437.

[52] Group Respondent’s Closing Submissions, dated 28 August 2023, filed 28 August 2023, [23] – [25].

[53] Exhibit R5, Witness Statement of Timothy Singleton with one attachment, dated 8 March 2023, filed 8 March 2023.

[54] Transcript, PN 2024 – 2026.

[55] Ibid, PN 2053 – 2055.

[56] Ibid, PN 3102.

[57] Diaz, Guillermo (William) v Anzpac Services (Australia) Pty Limited[2016] FWCFB 7204.

[58] Boris, Boris v Metcash Trading Limited T/A Metcash [2019] FWC 3993, upheld on appeal.

[59] Jalea, Eleanora v Sunstate Airlines (Queensland) Pty Ltd T/A QANTAS Link [2012] FWA 1360.

[60] Transcript, PN 3817.

[61] Transcript, PN 462; Exhibit R5, Witness Statement of Timothy Singleton with one attachment, dated 8 March 2023, filed 8 March 2023, [18].

[62] Exhibit R5, Witness Statement of Timothy Singleton with one attachment, dated 8 March 2023, filed 8 March 2023, [28].

[63] Transcript, PN 3821 – 3827.

[64] Exhibit R5, Witness Statement of Timothy Singleton with one attachment, dated 8 March 2023, filed 8 March 2023, [18] – [24].

[65] Transcript, PN 2486 – 2494.

[66] Ibid, PN 3091 – 3094.

[67] Ibid, PN 3095 – 3096.

[68] Ibid, PN 3102.

[69] Ibid, PN 2010 – 2019.

[70] Group Respondent’s Closing Submissions, dated 28 August 2023, filed 28 August 2023, [33].

[71] Ibid.

[72] Exhibit A1, Applicant’s Outline of Submissions, filed 13 February 2023, appearing at Digital Court Book, 16, 66.

[73] Transcript, PN 3889; Group Respondent’s Closing Submissions, dated 28 August 2023, filed 28 August 2023, [44].

[74] Exhibit R5, Witness Statement of Timothy Singleton with one attachment, dated 8 March 2023, filed 8 March 2023, [29] – [30].

[75] Transcript, PN 3891 – 3897.

[76] Group Respondent’s Closing Submissions, dated 28 August 2023, filed 28 August 2023, [44] – [45].

[77] Transcript, PN 495.

[78] Exhibit R5, Witness Statement of Timothy Singleton with one attachment, dated 8 March 2023, filed 8 March 2023, [30].

[79] Exhibit A1, Applicant’s Outline of Submissions, filed 13 February 2023, appearing at Digital Court Book, 16, 66.

[80] Exhibit R5, Witness Statement of Timothy Singleton with one attachment, dated 8 March 2023, filed 8 March 2023, [33].

[81] Transcript, PN 4021 – 4025.

[82] Exhibit A1, Applicant’s Outline of Submissions, filed 13 February 2023, appearing at Digital Court Book, 16, 66.

[83] Transcript, PN 3934; 3947 – 3953.

[84] Ibid, PN 3947, 3951.

[85] Exhibit R4, Witness Statement of Tony Stavropoulos with eight attachments, dated 8 March 2023, filed 8 March 2023, appearing at Digital Court Book p.267.

[86] Transcript, PN 3947.

[87] Ibid, PN 565.

[88] Ibid, PN 582 – 582.

[89] Exhibit R5, Witness Statement of Timothy Singleton with one attachment, dated 8 March 2023, filed 8 March 2023, [54].

[90] Exhibit R5, Witness Statement of Timothy Singleton with one attachment, dated 8 March 2023, filed 8 March 2023, [54] – [55]; Transcript PN, 4055 – 4066.

[91] Group Respondent’s Closing Submissions, dated 28 August 2023, filed 28 August 2023, [57].

[92] Exhibit A1, Applicant’s Outline of Submissions, filed 13 February 2023, appearing at Digital Court Book, p.67.

[93] Ibid.

[94] Exhibit R5, Witness Statement of Timothy Singleton with one attachment, dated 8 March 2023, filed 8 March 2023, [56].

[95] Exhibit R4, Witness Statement of Tony Stavropoulos with eight attachments, dated 8 March 2023, filed 8 March 2023, appearing at Digital Court Book, p.267.

[96] Transcript, PN 4097 – 4104.

[97] Exhibit R5, Witness Statement of Timothy Singleton with one attachment, dated 8 March 2023, filed 8 March 2023.

[98] Transcript, PN 4086 – 4092.

[99] Ibid, PN 3766.

[100] Ibid, PN 4105.

[101] Ibid, PN 4086 - 4094.

[102] Exhibit R4, Witness Statement of Tony Stavropoulos with eight attachments, dated 8 March 2023, filed 8 March 2023, appearing at Digital Court Book, p.264.

[103] Exhibit A1, Applicant’s Outline of Submissions, filed 13 February 2023; appearing at Digital Court Book, p.67.

[104] Transcript, from PN 620.

[105] Exhibit R7, First Witness Statement of David Harrison with two attachments, dated 8 March 2023, filed 8 March 2023, [15].

[106] Transcript, PN 622.

[107] Ibid, PN 2519.

[108] Ibid, PN 2517.

[109] Ibid, PN 2539.

[110] Exhibit R7, First Witness Statement of David Harrison with two attachments, dated 8 March 2023, filed 8 March 2023, [19].

[111] Transcript, PN 643 – 658.

[112] Group Respondent’s Closing Submissions, dated 28 August 2023, filed 28 August 2023, [2].

[113] Exhibit R4, Witness Statement of Tony Stavropoulos with eight attachments, dated 8 March 2023, filed 8 March 2023, appearing at Digital Court Book, p.219.

[114] Transcript, PN 5021.

[115] Exhibit A1, Applicant’s Outline of Submissions, filed 13 February 2023, appearing at Digital Court Book, p.68.

[116] Transcript, PN 685.

[117] Ibid, PN 5023.

[118] Exhibit R6, Witness Statement of Brett Watkins, dated 8 March 2023, filed 8 March 2023, [7].

[119] Exhibit R4, Witness Statement of Tony Stavropoulos with eight attachments, dated 8 March 2023, filed 8 March 2023, appearing at Digital Court Book, p.271.

[120] Exhibit R7, First Witness Statement of David Harrison with two attachments, dated 8 March 2023, filed 8 March 2023, DH – 1, appearing at Digital Court Book, p.180.

[121] Ibid, [29] – [37].

[122] Ibid, appearing at Digital Court Book, p.180.

[123] Transcript, PN 732 – 733.

[124] Exhibit R4, Witness Statement of Tony Stavropoulos with eight attachments, dated 8 March 2023, filed 8 March 2023, appearing at Digital Court Book, p.272.

[125] Exhibit A1, Applicant’s Outline of Submissions, filed 13 February 2023; appearing at Digital Court Book, p.68.

[126] Exhibit R6, Witness Statement of Brett Watkins, dated 8 March 2023, filed 8 March 2023.

[127] Transcript, PN 4274; see also Transcript, PN 4288.

[128] Ibid, PN 767 – 779.

[129] Transcript, PN 4320 – 4324.

[130] Group Respondent’s Closing Submissions, dated 28 August 2023, filed 28 August 2023, [91].

[131] Transcript, PN 781 – 783.

[132] Ibid, PN 784.

[133] Exhibit R4, Witness Statement of Tony Stavropoulos with eight attachments, dated 8 March 2023, filed 8 March 2023, appearing at Digital Court Book, p.274.

[134] Exhibit A1, Applicant’s Outline of Submissions, filed 13 February 2023, appearing at Digital Court Book, p.68.

[135] Exhibit R6, Witness Statement of Brett Watkins, dated 8 March 2023, filed 8 March 2023, [27].

[136] Witness Statement of Marissa Bozzo, dated 8 March 2023, filed 8 March 2023.

[137] Group Respondent’s Closing Submissions, dated 28 August 2023, filed 28 August 2023, [111]; Transcript, PN 874.

[138] Witness Statement of Marissa Bozzo, dated 8 March 2023, filed 8 March 2023, [24].

[139] Exhibit R9, Witness Statement of Sylvio Bignoux with attachments, dated 8 March 2023, filed 8 March 2023, [9] – [17].

[140] Exhibit A1, Applicant’s Outline of Submissions, filed 13 February 2023, appearing at Digital Court Book, p.70.

[141] Witness Statement of Alexander Banting, dated 8 March 2023, filed 8 March 2023, [4] – [9].

[142] Exhibit R6, Witness Statement of Brett Watkins, dated 8 March 2023, filed 8 March 2023, [9].

[143] Exhibit A1, Applicant’s Outline of Submissions, filed 13 February 2023, appearing at Digital Court Book, p.70.

[144] Exhibit R6, Witness Statement of Brett Watkins, dated 8 March 2023, filed 8 March 2023, [15].

[145] Ibid.

[146] Ibid, [15] – [21].

[147] Exhibit R6, Witness Statement of Brett Watkins, dated 8 March 2023, filed 8 March 2023.

[148] Transcript, PN 1033 – 1036.

[149] Ibid, PN 1012 – 1023.

[150] Ibid, PN 1040.

[151] Ibid, PN 4584 – 4593.

[152] Ibid, PN 1042 – 1046.

[153] Exhibit A1, Applicant’s Outline of Submissions, filed 13 February 2023; appearing at Digital Court Book, p.70.

[154] Ibid.

[155] Exhibit R9, Witness Statement of Sylvio Bignoux with attachments, dated 8 March 2023, filed 8 March 2023.;.

[156] Transcript, PN 5727 – 5728.

[157] Ibid, PN 5768.

[158] Exhibit A1, Applicant’s Outline of Submissions, filed 13 February 2023, appearing at Digital Court Book, p.71.

[159] Ibid.

[160] Exhibit R7, First Witness Statement of David Harrison with two attachments, dated 8 March 2023, filed 8 March 2023.

[161] Ibid.

[162] Transcript, PN 5218 – 5222.

[163] Exhibit R9, Witness Statement of Sylvio Bignoux with attachments, dated 8 March 2023, filed 8 March 2023, [28] – [29].

[164] Transcript, PN 5237.

[165] Ibid, PN 1317 – 1318.

[166] Ibid, PN 1238.

[167] Ibid, PN 1230.

[168] Ibid, PN 1259.

[169] Ibid, PN 1248.

[170] Ibid, PN 1250 – 1252.

[171] Ibid, PN 1254 – 1255.

[172] Ibid, PN 1315 – 1317.

[173] Exhibit A1, Applicant’s Outline of Submissions, filed 13 February 2023, appearing at Digital Court Book, pp.70 – 71.

[174] Exhibit R6, Witness Statement of Brett Watkins, dated 8 March 2023, filed 8 March 2023, [27].

[175] Transcript, PN 4669.

[176] Ibid, PN 4674.

[177] Exhibit R4, Witness Statement of Tony Stavropoulos with eight attachments, dated 8 March 2023, filed 8 March 2023, appearing at Digital Court Book, pp.274 – 275.

[178] Exhibit R6, Witness Statement of Brett Watkins, dated 8 March 2023, filed 8 March 2023, [21].

[179] Ibid, [27].

[180] Exhibit A1, Applicant’s Outline of Submissions, filed 13 February 2023, appearing at Digital Court Book, p.70.

[181] Transcript, PN 1328.

[182] Ibid, PN 1136 – 1144.

[183] Exhibit A1, Applicant’s Outline of Submissions, filed 13 February 2023, appearing at Digital Court Book, p.71.

[184] Ibid.

[185] Exhibit R7, First Witness Statement of David Harrison with two attachments, dated 8 March 2023, filed 8 March 2023, [52].

[186] Ibid.

[187] Ibid, [57] – [58].

[188] Transcript, PN 4851 – 4854, 5211.

[189] Load Shifting Equipment – see Exhibit R5, Witness Statement of Timothy Singleton with one attachment, dated 8 March 2023, filed 8 March 2023, [30].

[190] Exhibit A1, Applicant’s Outline of Submissions, filed 13 February 2023, appearing at Digital Court Book, p.97.

[191] Ibid, p.98.

[192] Transcript, PN 1164 – 1166.

[193] Ibid, PN 1153 – 1169.

[194] Exhibit R4, Witness Statement of Tony Stavropoulos with eight attachments, dated 8 March 2023, filed 8 March 2023, appearing at Digital Court Book, p.272.

[195] Exhibit R7, First Witness Statement of David Harrison with two attachments, dated 8 March 2023, filed 8 March 2023, [48].

[196] Exhibit A1, Applicant’s Outline of Submissions, filed 13 February 2023, appearing at Digital Court Book, p.71.

[197] Ibid, p.73.

[198] Group Respondent’s Closing Submissions, dated 28 August 2023, filed 28 August 2023, [159] – [160].

[199] Applicant’s Closing Submissions, dated 31 July 2023, filed 31 July 2023, p.4.

[200] Group Respondent’s Outline of Submissions, filed 8 March 2023, appearing at Digital Court Book, p.164.

[201] Applicant’s Closing Submissions, dated 31 July 2023, filed 31 July 2023, Attachment.

[202] Transcript, PN 2710.

[203] Applicant’s Document Bundle: appearing at Digital Court Book, p.95.

[204] Transcript, PN 3544 – 3545.

[205] Ibid, PN 3647.

[206] Group Respondent’s Closing Submissions, dated 28 August 2023, filed 28 August 2023.

[207] Transcript, PN 1687 – 1695.

[208] Comcare Report; appearing at Digital Court Book, pp.56 – 61.

[209] Transcript, PN 2578 – 2579.

[210] Ibid, PN 2576 – 2580; 2588.

[211] Ibid, PN 2953 – 2596.

[212] Exhibit R2, Email from Mary Long to Brett Watkins, 23 August 2021.

[213] Transcript, PN 1350 – 1387.

[214] Exhibit A1, Applicant’s Outline of Submissions, filed 13 February 2023, appearing at Digital Court Book, p.72.

[215] Exhibit R9, Witness Statement of Sylvio Bignoux with attachments, dated 8 March 2023, filed 8 March 2023, [37] – [53].

[216] Transcript, PN 1404 – 1405.

[217] Ibid, PN 1407.

[218] Ibid, PN 1455.

[219] Ibid, PN 1457.

[220] Ibid, PN 5670 – 5671.

[221] Ibid, PN 5873 – 5874.

[222] Exhibit A1, Applicant’s Outline of Submissions, filed 13 February 2023, appearing at Digital Court Book, p.73.

[223] Exhibit R7, First Witness Statement of David Harrison with two attachments, dated 8 March 2023, filed 8 March 2023.

[224] Transcript, PN, 1520 – 1533.

[225] Ibid, PN 2084 – 2111.

[226] Exhibit A1, Applicant’s Outline of Submissions, filed 13 February 2023, appearing at Digital Court Book, p.73.

[227] Transcript, PN 1547 – 1553.

[228] Ibid, PN 1556 – 1578.

[229] Exhibit R10, Witness Statement of Katrina Eishold with three attachments, dated 12 May 2023, Statement filed 13 June 2023 and attachments filed 10 July 2023, [8].

[230] Ibid.

[231] Ibid, [13] – [15].

[232] Exhibit R10, Witness Statement of Katrina Eishold with three attachments, dated 12 May 2023, Statement filed 13 June 2023 and attachments filed 10 July 2023.

[233] Transcript, PN 1633.

[234] Ibid, PN 1639.

[235] Ibid, PN 2887 – 2891.

[236] Exhibit R6, Witness Statement of Brett Watkins, dated 8 March 2023, filed 8 March 2023, [39].

[237] Exhibit A1, Applicant’s Outline of Submissions, filed 13 February 2023, appearing at Digital Court Book, p.73.

[238] Ibid.

[239] Exhibit R10, Witness Statement of Katrina Eishold with three attachments, dated 12 May 2023, Statement filed 13 June 2023 and attachments filed 10 July 2023.

[240] Ibid, [44].

[241] Ibid, [45] – [47].

[242] Transcript, PN 3272 – 3276.

[243] Ibid, PN 3288 – 3299.

[244] Ibid, PN 3305.

[245] Exhibit R8, Further Witness Statement of David Harrison with one attachment, dated 6 April 2023, filed 6 April 2023, [10].

[246] Exhibit A4, Additional documented filed 8 March 2023 by Applicant, located at Digital Court Book, pp.149 – 150.

[247] Ibid.

[248] Exhibit R8, Further Witness Statement of David Harrison with one attachment, dated 6 April 2023, filed 6 April 2023.

[249] Ibid.

[250] Ibid.

[251] Ibid.

[252] Exhibit R10, Witness Statement of Katrina Eishold with three attachments, dated 12 May 2023, Statement filed 13 June 2023 and attachments filed 10 July 2023.

[253] Ibid, [40].

[254] Exhibit R6, Witness Statement of Brett Watkins, dated 8 March 2023, filed 8 March 2023, [9].

[255] Exhibit R6, Witness Statement of Brett Watkins, dated 8 March 2023, filed 8 March 2023.

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