Applicant v Respondent

[2014] FWC 6285

[2014] FWC 6285 [Note: An appeal pursuant to s.604 (C2014/7706) was lodged against this decision - refer to Full Bench decision dated 22 April 2015 [[2015] FWCFB 1972] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Applicant
v
Respondent
(AB2014/1136)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 31 OCTOBER 2014

Application for an FWC order to stop bullying.

[1] The applicant lodged an application for an order to stop bullying on 24 March 2014.

[2] I heard this application in Sydney on 22 and 28 May and 2 September 2014. The final hearing was delayed because of the applicant's ill-health. Final submissions were received on 24 September 2014.

[3] The applicant is a senior employee with a Commonwealth department. His application detailed alleged bullying behaviour which commenced after he came into contact with a Mr PR as follows:

“1. He tells me to go back where I came from.

2. He constantly intimidates me to terminate my employment.

3. He constantly makes hurtful remarks and makes me feel less important and undervalued.

4. He always puts me down and criticises my every move.

5. He distorts facts and fabricates information about me.

6. He patronises and puts me down under the guise of having performance issues.

7. He treats me like a slave - he expects me to jump every time he asks me to do a task for him.

8. He fabricates non-existing performance issues.

9. He speaks with me in a condescending manner which has been humiliating.

10. All his actions demonstrate that he is trying to get me into trouble.

11. He checks on me what time I arrive and leave the office.

12. He is making my life miserable which has affected my health adversely, and impacted on every aspect of my life.”

[4] Examples of particular bullying behaviour were provided in the application and are extracted below:

“A Recent example - I was one of two contact officers for an APS5 position, advertised internally as temporary for a period of 12 months. The position advertised reports directly to me. This internal position only required an expression of interest ie it was not intended to hold interviews.

I asked PR why he is not allowing me to be involved in the selection process. PR replied because I have decided so and I will use somebody else. He said if you complain about this I will say we needed a female on the selection panel. At that point PR decided to interview the applicants, to cover his prejudice attitude.

PR’s continuous harassment and bullying affected my health adversely, my blood pressure is now extremely high and in dangerous territory. There is no-one I can talk to in the NSW office.

......

When I received praise from an external client, PR was upset and argued that I do not deserve to receive any praise from this external client. PR manipulated information and convinced PW (the Regional Director who is retiring in weeks) to agree with him about this, despite the fact that the internal client (DE) had expressed the same praise. Any Manager would be happy to receive good comments about their staff members. But not PR. He maintained his aggressive protest that I do not deserve the praise and it was meant for others.”

[5] The applicant gave further examples of alleged bullying in his submissions and correspondence. Amongst others these included:

● an instance of bullying after he was admonished for failing to contact a colleague who was absent from work. These were said to have been cited by Mr PR as evidence of communication failures by the applicant.
● an instance of bullying after being admonished for failing to promptly complete a Community of Statisticians evaluation. The evaluation was completed by the applicant at a later time.
● an instance of bullying by Mr PR after being informed, without reference to specific examples, of his inability to accept feedback and communicate respectfully.
● an instance of bullying by the person representing the respondent at the hearing before me.

[6] He outlined the immediate risk to his health and safety as follows:

“I am a single parent and this continuous harassment and bullying have given me extreme high blood pressure, anxiety and insomnia. I am concerned if something happens to me who will look after my kids.”

[7] The orders applicant sought are:

“1. Stop this bullying.

2. Stop having any dealings with PR.

3. Make inquiries why the respondent does not have a credible and transparent system of investigating bullying in the workplace.”

[8] In its Response, the respondent outlined the report the applicant provided to it regarding his alleged bullying by Mr PR.

“The applicant emailed Ms N, Director, People Management and Wellbeing Section on 31 October 2013 seeking advice on the respondent policy in relation (sic) concerns he had with his current and previous managers. Ms N advised him to refer the matter to his senior manager, Mr W. Refer Attachment 1.

In November 2013, the applicant raised concerns with the Regional Director, Mr W regarding his current and previous managers work performance and treatment of him. This followed feedback from his current manager Ms B. Please refer to Attachment 1a - applicant’s email to Mr W and Mr W’s response.

In January 2014, the applicant emailed a complaint to Mr W (NSW Regional Director) and Ms N, Director, People Management and Wellbeing Section (PMaW). The complaint raised his concerns about the conduct of his Acting Director, Mr R and two previous managers. Mr L, Acting Director PMaW, asked Mr W to undertake initial inquiries into the applicant’s allegations and provide him with a report. Following Mr W’s initial inquiries and after consideration of all material available, Mr L provided a response to the applicant advising that he would not be instigating a formal investigation. Mr L concluded that each occasion was linked to his managers raising concerns about the applicant’s work performance. This was normal management action to address the performance concerns. Please refer to Attachment 2 - Complaint, Mr W’s report and Mr L’s response to the applicant.”

[9] The applicant had previously made allegations of bullying against his supervisor Mr TM. Upon withdrawing those allegations, the applicant was subsequently placed under a new supervisor Ms B.

[10] The applicant relied upon the workplace reviews conducted in 2011 and 2012 by his then supervisor Mr TM. He submitted that these positive reviews demonstrated positive workplace diligence and capacity. He also relied upon electronic mail from clients praising his performance in organising seminars and relied on the contrast between those appraisals and the outcome of the performance reviews conducted by Mr PR to demonstrate workplace bullying.

[11] The applicant’s submissions largely comprised generalised statements that Mr PR’s performance reviews were characterised and motivated by bias and were without any factual basis.

[12] Mr PR provided a statement 1 and was cross-examined. Mr PR is a senior manager within the respondent organisation. Mr PR had a number of concerns regarding the applicant's performance. These included:

● his ability to use the Notes system for communication and knowledge management to meet their expectations;
● his ability to follow-through on instructions and guidance as directed from his supervisor or other senior officers;
● his ability to communicate appropriately on projects or tasks; and
● his ability to take responsibility for managing work projects to achieve results, including communication with all stakeholders to projects.

[13] The respondent reacted to two complaints by the applicant concerning Mr PR by providing investigations into his allegations by senior management. On both occasions, after an internal investigation, the respondent did not find any evidence of workplace bullying.

[14] The respondent instituted a Performance Improvement Plan (PIP) for the applicant which was intended to run for five weeks. The PIP required Mr PR to give continual feedback to the applicant regarding performance issues. Towards the end of the program the applicant engaged a representative of the Community and Public Sector Union (CPSU) to be present via telephone link during scheduled performance meetings. Following the final meeting of the PIP on 22 January 2014, the applicant was held to have partially satisfied one out of the five criteria.

[15] A number of examples of bullying identified by the applicant concerned issues that were issues selected to be addressed under the PIP. Mr PR asserted:

“It is against this background, within the context of a structured program aimed at achieving improvements in specific aspects of (the applicant)’s work performance, that the actions which he complains of have occurred.”

[16] Mr MH provided a statement 2 and was cross-examined by telephone link. His evidence was that, although the applicant had received some positive feedback on his performance, this did not conflate to suitability as a manager.

[17] In my determination of this applicationI have not confined my consideration to the exhibits presented by the applicant. I have also considered the various submissions and electronic mail provided to me by the applicant from commencement of his application.

[18] In essence, the applicant alleges malevolently motivated micromanagement of his performance by Mr PR, unrestrained by any senior management, to bully him and bring about his termination of employment. He also alleges intimidating conduct by Ms DN up to and including conduct in the hearing before me and in discussions between the parties.

[19] The respondent’s response to this allegation is that the applicant is underperforming at his level and that it has been attempting to manage his work for the purpose of improving his performance. It rejects any suggestion of bullying and submits that the applicant's perception of what has been ordinary management of his performance is misconceived.

[20] I am not in a position to make a finding about the reasonableness of Mr PR’s concerns regarding the applicant's performance, or whether or not a completed investigation of these issues would demonstrate inadequate performance, nor would it be appropriate for me to do so. Some of the issues raised by Mr PR seem to be of minor significance to me and would appear to be unlikely to demonstrate a significant failure of performance. Other matters appear more significant.

[21] I am however, satisfied and find that Mr PR’s concerns about the performance of the applicant are not motivated by an intention to bully him. There is sufficient material before me to satisfy me that neither Mr PR nor Ms DN, nor any other employee of the respondent, has engaged in bullying conduct. I accept that it is the applicant's honestly held belief that all action taken to manage his performance has been motivated by a desire to establish a reason to terminate his employment. That perception of a malevolent motivation, and an apprehension of termination of employment as an outcome of that conduct, has given rise to significant health issues for the applicant. The applicant is concerned about his continued employment and the financial stability of his family.

[22] I am not persuaded that there is any justification for the applicant’s belief. All of the material which I have considered demonstrates an ordinary exercise of management prerogative. I am satisfied that the respondent's managers are managing the applicant's performance in an ordinary fashion. I am not equally satisfied that the applicant is engaging in that review in a co-operative fashion.

[23] As I am not satisfied that the respondent, or any of its officers, have engaged in bullying of the applicant, the application is dismissed.

SENIOR DEPUTY PRESIDENT

 1   Exhibit ABS2

 2   Exhibit ABS3

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