Appellant v Respondent
[2015] FWCFB 1972
•22 APRIL 2015
| [2015] FWCFB 1972 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Respondent
(C2014/7706)
SENIOR DEPUTY PRESIDENT HARRISON | SYDNEY, 22 APRIL 2015 |
Appeal against decision [2014] FWC 6285 of Senior Deputy President Drake at Sydney in AB2014/1136 - application for order to stop bullying dismissed - appeal alleging errors in decision - complaint about representation of respondent - permission to appeal refused.
[1] This decision concerns an appeal pursuant to s.604 of the Fair Work Act 2009 (Cth) (the Act) against a decision dismissing the appellant’s application for an order to stop bullying. Senior Deputy President Drake found, at first instance, that the appellant had not been bullied at work. Accordingly, she found there was no power to make the orders sought and the application was dismissed.
The Act - relevant provisions
[2] An appeal such as this which is made under s.604 of the Act is an appeal by way of rehearing with the Fair Work Commission’s (the Commission’s) powers only being exercisable if there is error on the part of the primary decision-maker. There is no right to appeal; an appeal may only be made with the permission of the Full Bench.
[3] Section 604(2) requires the Full Bench to grant permission to appeal if satisfied that it is “in the public interest to do so”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. The public interest is not satisfied simply by the identification of error, or a preference for a different result. 1 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...” 2
[4] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted as justifying the grant of permission to appeal (or “leave” to appeal, as it was previously described) include that the decision is attended with sufficient doubt to warrant its reconsideration or that substantial injustice may result if leave is refused. It will rarely be appropriate to grant permission to appeal unless an arguable case of appellable error is demonstrated. This is so because an appeal cannot succeed in the absence of appellable error. 3
[5] The appellant’s originating application was made under s.789FC of the Act for an order to stop bullying. The relevant provisions concerning such an application are as follows:
“789FC Application for an FWC order to stop bullying
(1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.
...
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.
...
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.
...”
Procedural rulings
[6] The respondent sought permission to be represented by Ms Masters, a solicitor of the Australian Government Solicitor. In accordance with s.596(2)(a) of the Act we ruled that allowing the respondent to be represented would enable the appeal to be dealt with more efficiently, taking into account the complexity of the matters raised in it.
[7] In his notice of appeal, the appellant seemed to maintain that it was the role of the Commission at first instance to have conducted a full examination of the appellant’s work performance for itself and rule upon each of the instances when that performance had been the subject of comment, enquiry or a management process. To our knowledge, no previous Full Bench had considered this matter. We decided we would be assisted by Ms Masters addressing this issue.
[8] We note that, before Her Honour, the Community and Public Sector Union (CPSU) had filed a notice of its acting for the appellant. It had also acted for him prior to the filing of his s.789FC application. It did not seek to appear as an advocate for him on appeal, although no notice of ceasing to act had been filed.
[9] In the hearing at first instance, the respondent was represented by Ms N, an employee from the respondent’s Human Resources Branch. We accept the respondent’s submission that the appellant made serious allegations against Ms N in the hearing before Her Honour and continued to maintain them on appeal. In light of the serious allegations made against Ms N, we accept it was reasonable for her to not be required to represent the respondent on appeal. It was possible she may have needed to give evidence in the appeal. It would not have been appropriate that she be required to act as her own advocate. We accepted the submission that there were no other suitable individuals in the employ of the respondent able to represent it at the appeal hearing.
[10] The appellant also made allegations in his grounds of appeal about rulings made by Her Honour suggesting bias and procedural unfairness. It was difficult for us to understand the allegations as the appellant did not identify, in a clear manner, the particulars of his complaints, the transcript paragraphs where the issues may have arisen or the places in Her Honour’s reasons for decision which were relied upon to support the allegations. We decided we could only consider this allegation in an informed way with the assistance of counsel. We interpose to note that the appellant subsequently withdrew some allegations he had made, though he maintained others. As it transpired, none of the allegations directed to the manner in which Her Honour conducted the hearing were made out on appeal. There was no substance to them.
[11] We should also note that the appellant did not file an appeal book in accordance with the rules and what he did file contained documents that were not marked as exhibits below. It was unclear to us from the appellant’s submissions which documents he maintained should be in an appeal book, which may be the subject of an application to lead fresh evidence and which the appellant thought could be considered by us regardless of any ruling being made. We considered we would also be assisted by Ms Masters in addressing these matters.
[12] Finally, we should record that it was the respondent who volunteered to make up the appeal books, for which we are appreciative. Nevertheless, the appellant complained about their content and that they did not contain documents he wanted them to contain despite the fact those documents were not in evidence before Her Honour.
Proceedings before the Senior Deputy President and Her Honour’s decision
[13] The Senior Deputy President heard this matter over three days. Additional written submissions were filed after the third hearing date. The appellant was represented by Mr Pickells of the CPSU. The respondent was represented by Ms N, an employee in the respondent’s Human Resources Branch.
[14] A reading of the transcript of the hearings reflects that Her Honour went to some lengths to explain to the parties, and the appellant in particular, the manner in which she would hear his application and the considerations that were relevant to establishing whether he had been bullied at work. On many occasions, Her Honour needed to advise the appellant about the matters he should be addressing and those which may not prove to be of any relevance or assistance to his case. Although the appellant did not file one primary affidavit or statement, Her Honour was prepared to accept a number of documents he had collated which described a broad range of aspects of his employment with the respondent about which he was dissatisfied. It is fair to observe that a number of the matters addressed in the documents were either of no or only marginal relevance to the statutory considerations Her Honour had to take into account. Despite the assistance given to the appellant, he frequently insisted on pursuing irrelevant matters or arguing about matters after a ruling on them had been made.
[15] There was a great deal of documentation tendered by the appellant. It comprised emails, memoranda, policy handbooks, certificates of qualifications, government publications, medical certificates and performance appraisals. The appellant also provided opening and final written submissions. He gave oral evidence in the hearing.
[16] The respondent also filed opening and final submissions. It tendered a statement of Mr R, the respondent’s Branch Director for a period of the relevant time over which the appellant says he was bullied. Mr R’s statement annexed a large amount of documentation concerning the personnel management of the appellant. A statutory declaration was also filed by Mr R addressing an allegation made by the appellant that he had forged certain documentation. We refer later to a ground of appeal which raises this allegation and find it is without substance.
[17] The respondent also filed a statutory declaration of Mr H, the Branch Director prior to Mr R. It too had numerous annexures concerning management and performance issues relating to the appellant.
[18] We have considered all of the evidence led before Her Honour and intend only to briefly summarise it.
[19] The appellant is considered a senior employee of the respondent, for which he has worked since 2010. His application under s.789FC of the Act alleged substantial and continuous bullying behaviour from Mr R. Her Honour sets out examples in her decision at paragraphs [3] to [5]. The appellant submitted that this behaviour adversely affected his health and was giving him anxiety and insomnia.
[20] The appellant referred to a performance review and capability survey prepared in mid-2012 by Mr M, his then-supervisor, which reflected that his performance had then been generally assessed in positive terms. 4 However, we note that the potential implementation of a Performance Improvement Plan (PIP) had been discussed as early as 21 December 2011.5
[21] Many internal emails were relied on to demonstrate the bullying behaviour the appellant submitted he was subjected to. The appellant also gave as an example of the bullying from Mr R a formal warning letter dated 31 January 2014. 6 This letter outlined the history of performance concerns both Mr R and numerous former supervisors had with the appellant since late 2012. It outlined the measures that had been taken to address these concerns, such as the implementation of a PIP from November 2013. The letter identified the clauses of the relevant enterprise agreement relating to managing work performance which fails to meet expectations and noted the respondent’s guidelines for managing underperformance. The letter also detailed Mr R’s dissatisfaction with the appellant’s standard of work performance before and during the PIP. The following matters are referred to as areas where the appellant had not met the required standard of work performance:
1. follow-through on instructions and guidance “as directed from supervisors and senior officers”;
2. communication with superiors, teams within the organisation and other stakeholders when working on projects and tasks;
3. taking responsibility for work projects to achieve results;
4. accepting and acting on feedback provided during the PIP; and
5. appreciating obligations the appellant had concerning the development of his staff.
[22] The letter outlined the next steps that would occur, the timing of those steps and the possible outcomes.
[23] The respondent relied on statements from Mr R and Mr H, as well as documentation of supervisors collated over some years to demonstrate that the appellant had been underperforming at his level for a considerable time. They addressed the attempts which had been made to improve his performance. They explained that the actions taken were part of the ordinary course of performance management of an employee.
[24] There had been meetings with the appellant and his union representative to discuss the appellant’s performance and also the PIP that would be implemented. The PIP was intended to run for five weeks, but was extended due to the appellant’s direct supervisor changing. The PIP was then extended to enable an additional period for the new person to supervise the appellant. Numerous feedback sessions, both formal and informal, were referred to.
[25] A significant amount of documentation concerning issues with the appellant in the lead up to the November 2013 PIP was in evidence. It identifies disagreements about instructions and tasks given to the appellant by his supervisors and an inability to follow instructions and perform tasks to the requisite standard. In respect of one of the appellant’s supervisors, it was noted the appellant would make “sweeping...quite derogatory” comments which were “antagonising and unhelpful...unsubstantiated criticisms and sweeping negative remarks”, and would make accusations of bullying against the supervisor because of that supervisor’s “piercing eye contact and the way he raised his fingers” when he spoke to the appellant. 7 On 6 August 2013, performance concerns were relayed to the appellant and he was also informed of “areas that he needed to improve”.8 On 15 and 16 August 2013, another supervisor and the appellant drafted a new plan on specific areas where performance had to improve.
[26] In her reasons for decision, Her Honour referred to and described the range of behaviours which the appellant described as bullying behaviours he was subjected to by Mr R. Her Honour also referred to allegations of bullying by Ms N which the appellant had raised after his s.789FC application was filed. She reproduced a number of examples the appellant relied on as constituting bullying. Reference was made by her to the witness evidence called by the respondent. Her Honour considered the workplace reviews that had been undertaken over a period from 2011 to the date of the hearings. She detailed the evidence led by Mr R in relation to the concerns he had about the appellant's performance and the actions he had taken over a period of time to address them. She addressed internal investigations that had been undertaken when, on two occasions, the appellant had complained about Mr R's actions. There had been no evidence found of workplace bullying. She referred to the PIP which had been implemented for the appellant. It was observed that at that time a representative of the CPSU had appeared for him. She also referred to the evidence of Mr H. She concluded that she was satisfied that Mr R’s concerns about the appellant’s performance were not motivated by an intention to bully him.
[27] Her Honour was not satisfied either Mr R, or Ms N, or any other employee of the respondent had engaged in bullying conduct. She accepted that the appellant honestly held the belief that all action that was taken to manage his performance was motivated by a malevolent desire to terminate his employment. She found there was no justification for the appellant holding that belief. She concluded that all of the material before her demonstrated an ordinary exercise of management prerogative in dealing with the appellant’s performance and that it was done in an “ordinary fashion”. She said that, if anything, the appellant was not co-operating with the process in an appropriate manner. Her Honour was not satisfied any of the officers of the respondent had engaged in bullying conduct. She dismissed the application.
The grounds of appeal and hearing before us
[28] The appellant’s notice of appeal contains some paragraphs elaborating the reasons why he says the decision below was in error and should be quashed. However the notice of appeal is more in the nature of a submission than an identification of appellable error. The appellant filed an outline of submissions 9 which he said developed his grounds of appeal. At the commencement of the hearing of the appeal he tendered and read from a document titled “My presentation at Fair Work Commission”.10
[29] We have considered all of the matters raised by the appellant in the documents referred to in the preceding paragraph. We are not persuaded they identify any appellable errors in Her Honour’s reasons for decision.
[30] We agree with the respondent that there appear to be four main complaints in the appellant’s submissions. We will refer to each as a ground of appeal. The first is the manner in which the Senior Deputy President dealt with the reasonableness of the appellant’s supervisor’s concerns about his work performance. Contrary to the appellant’s submissions, it was not necessary for her to undertake a complete investigation of all of the background to the performance concerns and make findings about each of those occasions. We agree with the respondent that she was not required by the relevant provisions of the Act to set out a point-by-point merits review of each aspect of the respondent’s assessment of the appellant’s work performance over the period from 2012 to the date of the hearings. Her Honour’s task was to consider the evidence she had before her and whether, assessed objectively, that evidence constituted bullying behaviour and, in that context, whether it comprised no more than reasonable management action carried out in a reasonable manner. Overwhelmingly, the evidence supported the finding she made. This was a case where, over a period of time, numerous supervisors of the appellant had concerns about his performance. From late 2011, supervisors had begun to consider formal performance management options, including a PIP, but had, in the first instance, invoked mediation and other informal measures. This did not result in an acceptable improvement in the appellant’s performance. He was not performing at a standard expected of an employee at an APS Level 6 classification. This ground of appeal does not establish any appellable error.
[31] The second ground of appeal is no more than a comment on one aspect of the range of matters Mr R took into account in managing the appellant’s performance. It reflects no error. It was not necessary for Her Honour to identify the particular action which she thought was of minor significance. In isolation, the complaint, for example, about the use of the social club’s glassware may well have been considered insignificant. We agree with Ms Masters, however, that it was the manner in which the appellant responded to an enquiry about this issue which reflected the unacceptable way in which he interacted with his colleagues. His actions were an example of the broader concerns Mr R had about the appellant’s capacity to listen to instructions, act on them in a timely way and adequately complete tasks allocated to him.
[32] The third ground of appeal concerns an allegation made by the appellant against Mr R that he forged documents and fabricated issues. This is a serious allegation and was thoroughly addressed and answered in evidence below. The allegation was without merit. We rely on, and adopt, the submissions of the respondent on this ground. They are contained in paragraphs 13 to 18 of its written submissions on appeal. 11
[33] The fourth ground of appeal is that Her Honour failed to give proper weight to the conduct of Ms N. This concerned “without prejudice” communications with the appellant in the period between hearings. It was not appropriate for that correspondence (or the matters referred to in it) to be sent to Her Honour’s chambers. Nor, we should here note, was it appropriate for the appellant to refer us to it and to make submissions about it. This is not a ground of appeal which identifies any appellable error. Further, it is not one which warrants the grant of permission to appeal.
[34] We agree with the respondent that the appellant’s fifth and sixth grounds repeat matters raised in ground 3. We have addressed these matters and need make no further comment about them.
Conclusion
[35] We are not persuaded the grounds of appeal enliven the public interest such as to warrant the grant of permission to appeal, nor are we persuaded that Her Honour’s decision was attended by sufficient doubt such as to warrant its reconsideration or that substantial injustice would result if permission were refused.
[36] The appeal is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
The appellant appeared on his own behalf.
The respondent was represented by Ms V Masters, solicitor.
Hearing details:
Sydney.
2014.
December 18.
2015.
January 20.
1 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review: Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54.
2 [2010] FWAFB 5343.
3 Coal and Allied Operations v AIRC (2000) 203 CLR 194 at [17]-[21]; Wan v AIRC (2001) 116 FCR 481.
4 N3 attachments 8 and 9.
5 Respondent 3: attachment A.
6 N9.
7 Respondent 3 at para 11.
8 Respondent 3: attachment F.
9 Exhibit A2.
10 Exhibit A1.
11 Exhibit R1.
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