Application by John Dlima

Case •

[2024] FWC 549

•

5 MARCH 2024
[2024] FWC 549

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

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

Application by John Dlima

(AB2023/299)

DEPUTY PRESIDENT O’NEILL

MELBOURNE, 5 MARCH 2024

Application for an FWC order to stop bullying

Introduction

  1. Mr Dlima has been employed by Receivables People Solutions Pty Ltd (RPS) as a Customer Relationship Officer since 27 May 2019.  He has applied for an order to stop bullying in the workplace concerning alleged bullying conduct by six senior managers and human resource officers (Persons Named) since 2020.

  1. The Persons Named submit that the application should be dismissed. They submit that Mr Dlima’s belief that he has been bullied at work is not objectively reasonable, that the actions that form the basis of the allegations have been reasonable and/or have been reasonable management action carried out in a reasonable manner and that the evidence supports a finding that in some instances, the Applicant has himself engaged in bullying conduct towards others, particularly a HR employee, Ms Kayani.

  1. At the hearing Mr Dlima gave evidence in person as did Mr Rob Whelan, the General Manager of RPS and Ms Kayani, Human Resources Business Partner.

  1. RPS is a related entity of Panthera Finance Pty Ltd (Panthera), along with ARL Collect Pty Ltd, and the parties refer to various documents of the three entities in the documents submitted.

Jurisdiction

  1. Section 789FF of the Fair Work Act 2009 (Cth) (the Act) confers on the Commission a broad power to make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent a worker from being bullied at work.

What constitutes bullying?

  1. In order to consider making an order, the Commission must be satisfied that Mr Dlima has been bullied at work by an individual or a group of individuals.

  1. Section 789FD of the Act sets out the test for establishing whether a person has been bullied at work, and provides:

“(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 behaved 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.”

  1. The test is objective. If a person strongly and genuinely believes that they have been subjected to bullying behaviour which makes them feel belittled or unvalued, that does not mean that, viewed objectively, it does constitute bullying.  Different people react in different ways, and behaviour that to one person may seem like bullying, to another person might be unremarkable. What is reasonable is a question of fact. Behaviour is unreasonable if a reasonable person, having regard to all the circumstances, may consider it to be unreasonable. 

Repeatedly behaved unreasonably

  1. The expression “repeatedly behaved unreasonably” in s.789FD(1)(a) of the Act is to be interpreted and applied with reference to the policy or purpose of Part 6–4B of the Act, which is to establish a mechanism by which the bullying of workers at work may be stopped.

  1. A one-off incident will not be a sufficient basis for the making of an application to the Commission. Provided there is more than one occurrence, there is no specific number of incidents required to meet the condition of “repeated” behaviour, nor does the same specific behaviour have to be repeated.

  1. The statutory provision requires repeated unreasonable behaviour by the individual or a group of individuals towards the applicant worker or a group of workers to which the applicant belongs.

  1. In Mac v Bank of Queensland, Vice President Hatcher (as he then was) provided the following examples of conduct “which one might expect to find in a course of repeated unreasonable behaviour that constituted bullying at work”:

“… intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical 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.”[1]

  1. In Momirovski and Others,[2] Deputy President Easton held that not all unreasonable conduct is bullying; there must be a bullying element to the unreasonable conduct to bring it within jurisdiction, given the purpose of the jurisdiction is to stop workplace bullying. I agree with the Deputy President in this regard.

Reasonable management action

  1. Section 789FD(2) of the Act provides that a worker will not be bullied at work if the alleged behaviour constitutes reasonable management action carried out in a reasonable manner.

  1. The Explanatory Memorandum relevantly provides as follows in relation to s.789FD(2) of the Act:

New section 789FD – When is a worker bullied at work?
…

111. The Committee also found that balanced against this definition is the need for managers to be able to manage their staff. New subsection 789FD(2) is included to clarify that reasonable management action when carried out in a reasonable manner will not result in a person being ‘bullied at work’.

112. Persons conducting a business or undertaking have rights and obligations to take appropriate management action and make appropriate management decisions. They need to be able to make necessary decisions to respond to poor performance or if necessary take disciplinary action and also effectively direct and control the way work is carried out. For example, it is reasonable for employers to allocate work and for managers and supervisors to give fair and constructive feedback on a worker’s performance. These actions are not considered to be bullying if they are carried out in a reasonable manner that takes into account the circumstances of the case and do not leave the individual feeling (for example) victimised or humiliated.[3]

  1. The expression “management action” is not confined only to managerial decisions but encompasses a wider range of conduct or behaviour which affects an employee, including such things as performance and disciplinary matters, the allocation of work and the way in which work is to be carried out.[4]

  1. To determine whether the action constitutes “reasonable management action” it is necessary to undertake “an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time”.[5]

  1. The test for reasonable management action is whether the “management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’.” I adopt Commissioner Hampton’s explanation of these concepts in Re SB:

“In general terms this is likely to mean that:

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

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

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

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

·     consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances.”[6]

  1. I have adopted this approach in considering this application.

Witness Credibility

  1. A significant part of what took place is not disputed. In the main, the contest is whether the conduct constitutes bullying. 

  1. Mr Dlima submitted that the evidence of both Mr Whelan and Ms Kayani lacked credibility and alleges that they both committed offences under s.678(1) of the Act by giving false and misleading statements and evidence.

  1. I reject Mr Dlima’s submissions which is largely based on his disagreement with the explanations and contextual information provided by Mr Whelan and Ms Kayani. That Mr Dlima does not accept explanations provided or agree with evidence given, does not mean the witnesses lied. To the contrary, I found each of the witnesses to give truthful evidence, based on their subjective opinions of what occurred. As discussed below, their evidence was inherently plausible and consistent with documentary evidence.

  1. As I explained earlier, the question of whether Mr Dlima was bullied is an objective test. It is not sufficient that Mr Dlima genuinely believes that he has been subjected to bullying behaviour. I need to assess whether the conduct, if satisfied it occurred, viewed objectively, was bullying having regard to all the circumstances.

  1. Ms Richardson, Ms Kelly, Mr Terranova and Mr Hough did not give evidence. In relation to the allegations against them, I have relied upon the evidence led by other witnesses, including Mr Dlima and submitted documents.

Was Mr Dlima bullied at work?

  1. Mr Dlima commenced his employment working in the Insurance Team. 

  1. Frequently throughout his employment, Mr Dlima has been dissatisfied with various actions, omissions and decisions of management, and when he complained about them, was dissatisfied with how they were dealt with. The total number of ‘complaints’ made by Mr Dlima is not entirely clear because there are multiple references to ‘complaints’ throughout the documents and submissions filed but not all have been submitted. What is abundantly clear from the below account is that it is a large number. Some may not be formal complaints raised through the relevant grievance procedure. Ms Kayani’s evidence is that she estimates Mr Dlima has made about 30 complaints that she is aware of. To put that in context, Ms Kayani’s evidence was that from when she commenced in May 2022 there have been a total of 2 or 3 complaints from the approximately 80 employees that she is responsible for, not including Mr Dlima.  Ms Kayani also gave evidence that she receives about 35 emailed queries from Mr Dlima each month compared to approximately one email each six months from other employees.[7] 

  1. It seems that Mr Dlima’s first complaint was made in December 2019 concerning music being played by another team member.[8] Many of the managers and human resources officers he raised complaints about are no longer employed, and so, whilst he believes that he was bullied by many of these individuals, he does not rely on their actions to establish that he is being bullied at work. Instead, he alleges that six senior managers and HR officers have engaged in bullying towards him, both individually and as ‘gang bullying’.  Mr Dlima alleges that he was bullied by:

·     Rob Whelan, General Manager of RPS since December 2020 (previously employed by Panthera);

·     Jamie Hough, Director Panthera Finance;

·     Amy Kayani, HR Business Partner for RPS;

·     Lorinda Richardson, Head People & Culture;

·     Joanna Kelly, HR Business Partner; and

·     Frank Terranova, Chief Financial Officer & Company Secretary.

  1. He contends that there was an organisational culture of bullying supported by Mr Hough, Mr Terranova, Mr Whelan and Ms Richardson, and that this systemic and collective bullying by senior management starting from when he made a complaint in March 2020 and continues to date. He alleges that it involves ‘not responding to specific complaints; excessive long delays in responding to my complaints; singling me out because I have  made complaints; breach to process mentioned in Grievance Policy; breach to NES guidelines; breach to the modern Award; continued lack of duty of care and due diligence, declining to meet me to attempt to resolve; lies by HR and GM; misleading comments by Mr Hough have made me feel bullied.”[9]

  1. Before dealing with the specific allegations of bullying made by Mr Dlima, it is helpful to set out some factual background and context.

March – December 2020

  1. Between March and July 2020, a number of events were organised at the workplace including a PJ Day on 25 March, a Cultural Day on 26 June, a Pizza Friday on 10 July, an awards ceremony on 24 July and a team lunch on 31 July. In the context of the COVID-19 Pandemic, Mr Dlima was concerned that insufficient steps were taken to ensure social distancing and that his health and safety were put at risk. 

  1. Two days after the PJ Day, Mr Dlima complained to the then Operations Manager, Sam Adair, about what he considered to be inadequate attention to ensure distancing at the workplace in the context of the COVID-19 pandemic. Ms Adair advised that she would not be able to respond for a few weeks because she was preoccupied with COVID-19 related issues.[10] Having not received a response from Ms Adair, on 10 July the Applicant made a complaint to Mr McArthur, HR Adviser. The complaints were about the Cultural Day event, Ms Adair’s non-response to his complaint, Ms Adair working in a manner oblivious to the risk of COVID-19, a complaint about another team member regarding access to incentives, and about music played by a team member.[11]  On 27 July 2020, Mr McArthur advised him that there would be a delay in responding to his complaints because of a greatly increased workload from the pandemic. On 31 July, the Applicant requested his complaints be escalated to the head of ARL and raised further instances of an alleged disregard of safety measures at the Annual Awards and team lunch events.[12] On 3 August, Mr McArthur assured the Applicant that his complaints were not being ignored and would be discussed with the CFO or Company Director. A further complaint was made to Mr McArthur on 10 August 2023.[13]  The same day in a telephone discussion, Mr McArthur reiterated he would discuss the complaints with the CFO and that as all staff were working from home, there was no immediate risk in relation to safety measures. On 13 August, Mr McArthur advised the Applicant that he would arrange a time for the then General Manager to meet with him. Also on 13 August, the Applicant emailed Mr McArthur that he was ‘fed up’ and “I will close the matter as unresolved and that I may take the matter externally thru the Fair work or Worksafe though I have not had a proper think about my next action.”[14] On 19 August, Ms Adair met with the Applicant concerning whether management had ensured a safe workplace, the conclusion of which was that the Applicant respectfully disagreed with Ms Adair.[15]

  1. From 6 August 2020, the Melbourne office was closed and all employees worked from home.[16]

  1. In a team meeting on 26 August 2020, the Applicant along with several other employees raised concerns with management’s intention to set particular productivity KPIs. The same day, Ms Adair raised concerns with the Applicant’s work performance and required him to start completing a work tracker daily.  The Applicant made a further complaint to Mr McArthur following Ms Adair’s direction to complete a daily tracker, including that Ms Adair had considered his earlier complaints resolved at the 19 August meeting.[17]

  1. The next day, the Applicant commenced a period of absence from work, lodging a workers compensation claim due to feeling bullied at work. On 28 August 2020, the Applicant submitted a certificate of capacity that he was not fit to attend work until 11 September 2020.

  1. He was absent between 27 August 2020 and 10 October 2020. On 7 October 2020, after the claim was rejected, Mr McArthur advised the Applicant that the company was comfortable that it had acted reasonably, and that all of his issues had been managed through reasonable management action. He was also advised that upon his return to work on 10 October 2020, he was to be working in the Corporate International (PayPal) team.[18] The Applicant felt victimised because he was the only team member transferred out of the insurance team at that time and it impacted him financially as there was a reduced opportunity to earn a bonus in the new team.[19]

  1. On 9 October 2020, the Applicant asked Mr McArthur for the contact details for the head of the company so that he could escalate complaints about Mr McArthur’s delay in responding to his complaints, lack of due diligence, vague communication and the ongoing “deliberate defiance” and negligence of health and safety guidelines. In his email he refers to having received a response on 7 October.

  1. On 12 October 2020, the Applicant escalated his complaints to the then CFO, Mr Pearce.  The complaints were that Ms Adair did not respond to his complaint of 27 March 2020, that management were negligent in not enforcing COVID-19 safety measures, and that the Grievance Resolution Procedure had not been followed because Mr McArthur did not address his complaints in a timely manner and his complaints were being dealt with by human resources staff instead of being escalated to the CEO.[20] 

  1. On 16 October 2020, Mr Pearce responded stating that he was satisfied that management have followed all required processes, that ARL does provide a safe work environment, monitors its workplace health and safety measures and adheres to its business continuity plan, and that he considers that Mr Dlima’s complaints have been dealt with in a satisfactory manner. He said that “I now consider this grievance closed out.”[21] Mr Pearce also specifically responded to each of the outcomes Mr Dlima had requested, including payments, responses to all previous complaints and provision of a plan to create a safe workplace.[22]  Mr Dlima’s response included that “Now that the internal complaint escalation process is exhausted, I may now proceed with my complaints externally.”[23]

  1. Separately on 21 October, the then General Manager advised Mr Dlima that he was satisfied that the company has always acted appropriately, “having worked with you extensively to address and resolve your complaints. I am also aware that these grievances have been investigated and closed by Worksafe. Given that both internal and external parties agree our team have always practised reasonable management, the company consider the matters now resolved. Welcome back and let’s aim high, work together and ensure ARL achieves even greater success.”[24]

  1. Mr Dlima was working from home until his first day in the office on 22 December 2020.  That day, Mr Dlima was asked to attend a training session at the office conducted by Mr Rahul. Mr Dlima alleges that at the commencement of the session, the safe distancing rule was knowingly broken because Mr Rahul asked staff at the commencement if anyone objected to him allowing one extra person than could be safely accommodated in a room of that size.

  1. None of the people involved in the above events are the subject of the application.

June – November 2021

  1. Although it is not entirely clear, it appears that from December 2020 to 16 June 2021 Mr Dlima at least largely worked from home. On 11 June 2021, Mr Dlima requested to work from home and was advised a few days later by Mr Whelan that he was required to return to the office or provide a medical certificate. Mr Dlima also reported his concerns to WorkSafe on 11 June 2021.[25]  On 16 June 2021, Mr Dlima returned to work in the office and made a complaint to Ms Adair that another team member was working without wearing a mask properly.  On 22 June 2021, Mr McArthur informed Mr Dlima that the other team member had a medical exemption regarding mask wearing. The Applicant felt bullied because he was put in an unsafe situation. [26]

  1. On 9 September 2021, Mr Dlima emailed Mr Hough requesting a meeting as there continued to be unsafe situations despite his complaints to senior managers.  On 13 September 2021, Mr McArthur informed the Applicant that whilst it had been confirmed during a recent site visit that ARL was compliant with the DHHS directions, Mr Hough had agreed to allow Mr Dlima to voluntarily stand down from his position and return when he is more comfortable and reminded him of the employee assistance program available.[27]

  1. On 25 November 2021 at a training program, Mr Dlima reported to his team leader, Mr Shekhar, that chairs were placed too close together in the training room and were not at a safe distance. He made an incident report which was acknowledged on 30 November 2021 by Mr Cole, the then Health & Safety Manager, noting it had been resolved by Mr Shekhar by arranging for the chairs to be moved.[28]

  1. On 18 February 2022, Mr Dlima meet with Mr Whelan and a HR Advisor and says that he was told not to bring up old complaints, that his earlier complaints had been closed and that he could face disciplinary action if he continued to pursue old complaints.[29]

February 2022 onwards

  1. On 21 February 2022, staff were informed by Ms Adair that a 2IC position in the Insurance Team was available. 

  1. On 11 March 2022, Mr Dlima is informed by Ms Raschke that the 2IC position had been withdrawn.

  1. Shortly thereafter, the Applicant applied for another position as Performance Lead, reporting to Ms Adair. Mr Dlima was interviewed for the role on 5 April but was not successful. On 7 April 2021, Mr Dlima queried why Ms Adair participated in other interviews for the role, but not his. When advised that Ms Adair was unavailable at the interview time requested by Mr Dlima (which he denies), he complained that he felt victimised by Ms Adair’s non-attendance and that Ms Raschke was lying and covering up for Ms Adair.[30]

  1. Also on 7 April 2021, Mr Dlima made a separate complaint about another team leader (Mr Bourke), and when called by Ms Kelly about it, Mr Dlima said that he did not want to pursue the complaint.[31] However, a few days later he changed his mind and emailed Ms Kelly saying that he does want an investigation. Ms Kelly responded that the matter was closed, and that he should speak directly with Mr Bourke.

  1. Later in April 2022, when Mr Dlima applied for a Team Leader position in the Call Centre team, he was advised by Mr Westmore that his application did not proceed to the interview stage because he lacks the personal attributes to be a team leader. On 26 April 2022, Mr Dlima made a complaint about the comment about his personal attributes.[32]  On 28 April 2022, Ms Kelly emailed and advised him that the reason he was not interviewed was because he had been unsuccessful at the recent 2IC role. Mr Dlima challenged this because the 2IC position had been withdrawn, rather than him being unsuccessful.[33]

  1. Two days later he emailed Ms Richardson and complained that he was being bullied and victimised by ARL including the HR team and requested an investigation into that, the complaint about the personal attributes comment, Ms Adair not responding to his complaints, and that the HR team members had given “wrong reasons and lies to cover up actual reasons”.[34]

  1. In between 28 April and 20 June, Mr Dlima “sent many emails” to Ms Richardson complaining of her delay in responding. It appears that Ms Richardson found that the reason given to Mr Dlima as to why Ms Adair did not participate in the interview was because of previous concerns raised that Ms Adair was biased against the Applicant.[35]

  1. On 30 June 2022 Ms Richardson sent Mr Dlima a summary of her findings.[36]  Ms Richardson’s investigation report is not in evidence, although there is some suggestion that the investigation concluded that Mr Dlima’s accusations of bias were unsubstantiated, but that a more structured communication and delivery should have occurred.[37] 

  1. The summary of findings indicates that the investigation dealt with the following allegations:

(a)That the 2IC position was advertised, then withdrawn, and then readvertised as Performance Leader, “therefore John may not have been favourable for the role”;

(b)That John’s interview for the Performance Leader was staged, the interview was rushed and Sam Adair did not attend John’s interview but did attend all other interviews for this role;

(c)That the 2IC Call Centre successful applicant was pre-determined and despite being advised all previous 2IC applications in the last 3 months would be considered, this may not have been the case.”[38]

  1. The investigation concluded that:

“The questions asked were consistent for all candidates and all answers to interview questions were recorded. All applicant responses were evaluated in the same way. All successful applicants demonstrated desired skills and/or experience during the application and interview process.

The decision to withdraw the 2IC role was not to disadvantage any applicant. Evidence showed through documentation and sufficient business justification for the restructure.
Documentation was received and reviewed around the reason for Sam not attending the interview. Due to previous concerns raised indicating Sam might be bias towards John, she did not attend to reduce the concern and organised an appropriate alternative.”[39]

  1. I also note that in July 2022 the Applicant made a second workers’ compensation claim which was accepted. The Applicant had no capacity for work between July 2022 until 7 August 2023.

  1. On 1 July 2022, Mr Dlima made a further complaint to Ms Richardson that it took 2 months for the investigation, that her investigation was a cover up, and did not deal with all his complaints, namely those against members of the HR team.[40]

  1. On 5 July Ms Richardson informs Mr Dlima that his complaint has been forwarded to Mr Whelan, and on 4 August 2022, Mr Whelan meets Mr Dlima to provide clarity of Ms Richardson’s summary of findings and that he was the hiring manager for the Performance Lead role.

  1. Mr Dlima was unsatisfied with Mr Whelan’s response and escalated the complaint to Mr Hough. Mr Dlima did so on 2 September 2022, complaining to Mr Hough that Mr Whelan was misleading him by saying he was the hiring manager which was not what the relevant policy provided.  He sought a response to his concerns; that disciplinary action be taken against Mr Whelan, Ms Richadson and Ms Adair; and financial compensation. Mr Hough responded to Mr Dlima on 13 September 2022. His response included: “you are a valued member of the Panthera team” and “it is always a tough job selecting the right candidates for roles within the organisation and even though you weren’t selected, it is good to see that you were given the opportunity to apply. I am sure that you are aware that we have no obligation to give you a role just because you applied for it. Taking that into consideration, if you would like me to investigate further can you please be more specific with your complaint and realistic with your expectations about what may be done about them.”[41]

  1. On 15 September 2022, Mr Dlima sent a further email to Mr Hough requesting responses to various complaints. On 8 November 2022, Mr Hough informed Mr Dlima that complaints against the management team had been previously dealt with and that the company has all required measures in place to protect the health and safety of staff.[42]

  1. On 9 November 2022, a facilitated discussion took place related to Mr Dlima’s workers’ compensation claim. Mr Whelan and Ms Kayani attended along with the Applicant. The notes of that discussion record that Mr Dlima raised many of his complaints set out above and said that until his past complaints had been reviewed to his satisfaction, he would not feel comfortable to return to work. Mr Whelan said that it was not the case that his complaints had not been investigated or addressed, but that Mr Dlima was not willing to accept any outcome. A second facilitated discussion was to occur however Mr Dlima withdrew his consent to participate in it.[43]

  1. On 24 November and 2 December 2022, Mr Dlima requested a meeting with Mr Terranova to discuss his complaints, which Mr Terranova declined.[44]

  1. On 29 May 2023, Mr Dlima asks Ms Kayani to find out why two years earlier, he had been told in March 2021 by Mr Rahul Lal (Manager Compliance) not to apply for a role in his team and that he was concerned his complaints were resulting in him being treated unfavourably. Ms Kayani responds that it could take some time to gather information and respond.

  1. On 20 June 2023, Mr Dlima emails Mr Hough stating that he feels bullied by Mr Hough because he has not received a specific response to his complaints and because Mr Terranova had declined to meet with him to discuss his complaints.[45]

  1. On 28 June 2023, the Applicant complains to Ms Kayani that he had not been paid his superannuation since commencing on workers compensation.  On 7 July 2023, Ms Kayani acknowledged that the superannuation had not been paid due to an administrative oversight and would be corrected immediately.[46]

  1. On 4 July 2023, Mr Dlima makes a complaint to Mr Whelan because he has had no response to his email to Ms Kayani of 29 May 2023 and because the Grievance policy does not have a timeframe. Mr Whelan responds on 7 July 2023 advising that “The Grievance policy outlines the business process and timeframe for clarity. As discussed previously, timeframes for any dispute/grievance depends on the amount of preliminary information available and the amount of time an investigation can take to gather further information and evidence.”[47]

  1. On 10 July 2023, Mr Dlima makes a complaint to Mr Hough that investigators are deliberately delaying the process for reasons including covering up the wrongdoings of management, and their lack of competence or negligence.

  1. On 10 July 2023, Mr Dlima receives an email from Ai Group Workplace Lawyers on behalf of ARL stating that his complaints of May and June 2023 are historic and closed.[48] At this point the Applicant had been absent on workers compensation with certificates that he had no capacity for work for almost 52 weeks since July 2022. He is then asked to attend a meeting to review his ongoing employment. On 12 July 2023, the Applicant complains to Mr Hough and Ms Kayani that he should not have to deal with the company’s lawyers.[49] Prior to any decision being made concerning his ongoing employment, on 13 July 2023 the Applicant advised that he would have full capacity to return to work on 7 August 2023 and that various health and other support he had received had helped him to accept the reality and finality of the situation.[50]

  1. On 28 July 2023, Mr Dlima made a request for a flexible working arrangement which was declined on 4 August 2023.[51]

  1. On 31 July 2023, Mr Dlima made a complaint to Ms Kayani alleging breaches of health and safety legislation.[52]

  1. On 7 August 2023, Mr Dlima returned to work, but alleges that he was told by Ms Kayani to go home after about an hour.[53]

  1. On 7 August 2023, Mr Dlima queried with Ms Kayani the date the 52-week obligation under the workers compensation scheme expired. Ms Kayani responded the next day suggesting that he speak with the insurer, Allianz.[54]

  1. On 17 August 2023, Mr Dlima complains to the HR team that the sun blind near his window is causing excessive glare.[55] On 18 August 2023, Ms Kayani responds advising that the concern has been reported to building management, and his complaint is being closed. However, the blind was not repaired, at least not in a timely fashion.[56]

  1. On 18 August 2023, Mr Dlima makes a further request for a flexible working arrangement, seeking to work 4 days a week.

  1. Mr Dlima made further complaints in September 2023 concerning arrangements for a private mediation between the parties.[57] Upon his objecting to the first mediator proposed, arrangements were changed and an alternative mediator organised.  On 6 September 2023, Mr Dlima made a complaint to Ms Kayani about this.

  1. On 12 September 2023, Mr Dlima complained to Ms Kayani and copied to Mr Whelan that the company had not responded to his request for a flexible working arrangement within the prescribed time frame.[58] On 3 October 2023, Mr Dlima informed Mr Whelan that Ms Kayani had deliberately not forwarded him information he needed to provide to the mediator and was advised to speak to Ms Kayani directly about this.[59]

  1. Mr Dlima also made complaints to his team leader about the timer when staff go on their breaks. The timer can start at somewhere between around 20 and 90 seconds rather than zero, leading Mr Dlima to be concerned that it reduced the permitted break time. Mr Dlima’s team leader advised him, in response to his complaint, that his concern was not warranted because the system recomputes and takes into account the difference in the timer start time. Mr Dlima was also advised in writing that the issue will not have any negative impact on his performance, and that it was a system issue that had been raised with the system owners directly.[60]

The allegations of bullying

  1. Before turning to the specific allegations of bullying Mr Dlima has made, several observations can be made from the factual context set out above and the documentation before the Commission.

  1. The type of conduct identified by Vice President Hatcher that one might expect to find in allegations of bullying referred to in paragraph 12 above, are strikingly absent from Mr Dlima’s allegations against the persons named. Instead, the allegations largely relate to compliance with various policies and legislation, delays in responses to Mr Dlima’s queries and complaints, inconsistent information given to Mr Dlima as to why he was unsuccessful in two recruitment exercises and a myriad of alleged lies and cover-ups by management.

  1. The written communications from all the company’s managers to Mr Dlima were and remained polite, professional, and respectful. That is so, despite an inevitable degree of frustration that was likely felt given the volume of emails, queries, requests, and complaints made by Mr Dlima, and his refusal to accept the outcome. Further, not all of Mr Dlima’s communications can be described in the same way, with many serious allegations made of ‘deliberate misconduct’, ‘pathetic standard of service’, ‘management has lied’ and ‘used deceit to cover up wrongdoings’ and similar. Further, whilst some issues raised by Mr Dlima were clearly legitimate, others were trivial. For example, on 6 September 2023 Mr Dlima raised a concern with Ms Kayani, Mr Whelan, and Ms Richardson that he was addressed in some emails from Ms Kayani as “hey”, which he considered inappropriate.[61]

  1. It is also clear that at times there were delays in responding to Mr Dlima’s communications and he was, on occasion, given inconsistent and conflicting information. It is unfortunate that this occurred and it would have been preferable for at least some of Mr Dlima’s concerns to have been addressed earlier than they were and perhaps differently. But that some actions of management could have been done differently and better, does not mean that any person engaged in bullying towards Mr Dlima. Further, Mr Dlima acknowledged in October 2020 that the internal dispute process was exhausted and advised that he may proceed with his complaints externally. It was entirely reasonable for the company to treat those matters as finalised from an internal perspective, and unreasonable for Mr Dlima to continue to raise them subsequently, having elected not to proceed with them externally.

  1. As I indicated above, in my view, not all conduct even if objectively unreasonable, constitutes bullying behaviour.

  1. Mr Dlima was clearly dissatisfied with the action or lack thereof taken in response to his concerns, and the number and nature of his complaints escalated to very serious allegations of negligence, ‘cover-ups’, lies and incompetence with no more than suspicion. However, the volume, nature and tone of his complaints and queries was, itself, unreasonable in all the circumstances and inappropriate.

  1. I now turn to the specific allegations of bullying against each of the persons named, referencing the paragraph numbers in the Applicant’s closing submissions.[62]

Allegations against Rob Whelan

  1. Mr Rob Whelan is the General Manager of Receivables People Solutions Pty Ltd. The allegations against him are:

Allegation 1 (Paragraph 14): March to July 2020
Mr Whelan allowed events such as the Cultural day, PJ day and Annual awards function and in doing so, Mr Dlima alleges was “an act of omission and wilful negligence” by Mr Whelan, “ignoring risks to health and safety due to COVID-19” despite the Applicant’s complaints.

  1. It is not clear precisely what action Mr Whelan is said to have taken that constitutes repeatedly behaving unreasonably towards the Applicant. There is no evidence Mr Whelan played any active role in organising or allowing the events. In any event, I do not find that the holding of the events constitutes bullying behaviour by any person. Nor do I find that the responses at the time to Mr Dlima’s concerns was bullying. His concerns were responded to appropriately in the circumstances. Ms Adair and Mr McArthur informed him that responses to his concerns would be delayed because of the greatly increased workload relating to COVID-19.  This was not unreasonable given that at this time organisations were facing enormous challenges in responding to the pandemic and complying with varying public health directions. Mr Dlima was assured that his concerns were not being ignored and would be discussed with senior management. A meeting with Ms Adair was held with him to discuss his concerns. Further, the Applicant advised that he was closing the matter and may take it up externally.  It was reasonable for management to consider that the matter had been finalised. Mr Dlima did not, it seems, take the matter up externally.  I am not satisfied either that Mr Dlima had a reasonable belief that he had been bullied by Mr Whelan, nor that any bullying occurred.

Allegation 2 (Paragraph 18): February or March 2022
Mr Dlima was “threatened at a meeting with Cathryn Raschke (HR Advisor) and Rob Whelan about disciplinary action including dismissal” if the Applicant pursued old matters that the company had closed.  Further, that Mr Whelan had “tried to cover up Ms Adair” who Mr Dlima alleges made him complete a daily tracker in an act of retaliation.

  1. In relation to the alleged threat of disciplinary action there is no clear evidence of precisely what Mr Whelan or Ms Raschke is alleged to have said during the meeting in February or March 2022.  I note that Panthera’s Disputes and Grievance Policy makes clear that vexatious or frivolous complaints may result in disciplinary action and that grievances already dealt with, will not be actioned. It may be that the policy was being drawn to Mr Dlima’s attention.  By this point in time, Mr Dlima had continued to raise complaints and not accepted the outcome and so it was not unreasonable for Mr Whelan to advise that it was not acceptable to continue to raise grievances that had been closed. As to the alleged ‘cover up’, there is simply no evidence to suggest that Mr Whelan was involved in a cover up of any kind.  I accept his evidence that he was not involved in the decision to require Mr Dlima to complete a tracker. I also accept his evidence that where an employee, as Mr Dlima had here, raised concerns about productivity KPIs, they can be required to complete a tracker. He also stated that the tracker is neither a performance management tool nor a disciplinary measure. I am not satisfied either that Mr Dlima had a reasonable belief that he had been bullied by Mr Whelan, nor that any bullying occurred.

Allegation 3 (Paragraph 19): Oct 2020-Jan 2021
Mr Whelan engaged in bullying by trying to “cover up the adverse action taken by Ms Adair” when transferring him from the insurance team to the PayPal team. This was done as “retaliation by Sam Adair because [he] had made a complaint against her because of the daily tracker and because [he] had made a workers compensation claim.”

  1. Again, there is simply no evidence to support the allegation, nor clarity as to what was being ‘covered up’.  Like many others, it is a serious allegation made without any rational basis or evidence. Mr Dlima did not dispute Mr Whelan’s evidence that he had declined an invitation in January 2021 to move back to the Insurance Team or to another team. Mr Dlima says “I did not take up the offer because I felt safer in the much smaller PayPal team that had only 2 other consultants unlike the insurance team that had 8 other consultants and so more inter-team interactions.”[63] Mr Dlima alleges that the offer was only made after he had alleged contraventions of the Fair Work Act. There is no evidence of these matters, and that Mr Dlima had the opportunity to return to the Insurance Team, but chose not to, is inconsistent with his stated dissatisfaction with the transfer.

Allegation 4 (Paragraphs 21-23):  9-22 June 2021
Mr Whelan engaged in bullying conduct by:

(a)   Refusing Mr Dlima’s request to work from home in June 2021 “despite knowing that was at a risk to [Mr Dlima’s] health and safety”; and

(b)   His insistence for Mr Dlima to return to work from office but then “failed to provide a safe working environment”, because “the consultant who worked next to [Mr Dlima] was working without his mask covering his mouth”; and

(c)   Failing to make sure team leaders monitor compliance strictly. Because Mr McArthur had responded to his complaint to Ms Adair about his mask wearing colleague and “felt the management headed by Rob Whelan had instructed Ms Adair to stay away from” him.

  1. Upon receipt of the complaint by Mr Dlima regarding the colleague not wearing a mask, Mr Dlima was provided with a reasonable explanation, namely that the person had a medical exemption.  This allegation does not establish any unreasonable conduct by any person, and there is simply no evidence to support Mr Dlima’s ‘feeling’ that Mr Whelan had instructed Ms Adair to stay away from him. A refusal of a request to work from home is not unreasonable conduct in the circumstances.

Allegation 5 (Paragraph 25): 25 Nov 2021
Mr Whelan engaged in bullying conduct because he ignored the Applicant’s concerns about safety because when he returned to work in the office on 25 November 2021, there was inadequate distance between some chairs at a training session.

  1. Mr Dlima’s concerns were not ignored, and there is no evidence that Mr Whelan nor any of the persons named had any involvement in the location of chairs at the training session. As set out at paragraph 44 above, the incident report submitted by Mr Dilma was acknowledged promptly, noting that the concern had been resolved by the chairs being moved. No allegation of bullying is made out.

Allegation 6 (Paragraph 26): 11 March 2022
Mr Dlima felt bullied because the position for the 2IC was withdrawn and Mr Whelan must have known as he was the Head of the Department, and Mr Dlima “felt he was supporting Ms Adair with her bullying.”

  1. There is simply no evidence to support this allegation and it is no more than speculation on the part of Mr Dlima.

Allegation 7 (Paragraph 33): 4 August 2022
Mr Dlima felt bullied when Mr Whelan said “he was the hiring manager and that was a lie” and that he was “engaging in a cover up to close [Mr Dlima’s] complaints against Lorinda Richardson and Sam Adair.”

  1. As the Recruitment Policy and Mr Whelan’s evidence makes clear, the Recruitment Policy definition of ‘hiring manager’ is that it is usually the leader whom the vacant position reports to but may be another member of leadership.[64] There is no evidence that Mr Whelan was lying nor engaging in a ‘cover up’ of any kind.

Allegation 8 (Paragraph 41): 7 July 2023
Mr Whelan engaged in “gaslighting” the Applicant by making “misleading comments that timeframes were clear” in the Grievance Policy, when it was not. Only an earlier version of policy had clear timeframes.

  1. Two Grievance Policies were before the Commission, one for ARL and one for Panthera. It is not entirely clear which policy applied at relevant times.  Both policies have a footer indicating a final approval date of 2 June 2021 and a revision date of 2 June 2022. The ARL Policy sets out specific indicative timeframes for particular stages of the process and the Panthera Policy does not.[65]

  1. However, in my view, nothing arises from this because I am not satisfied that Mr Whelan’s email to Mr Dlima of 7 July 2023 set out at paragraph 66 constitutes unreasonable conduct. There is no evidence that his reference to inclusion in the policy of a timeframe in the email was a deliberate error, and it does not constitute ‘gaslighting’. It is not conduct amounting to bullying.

Allegation 9 (Paragraph 43): 10 July 2023
Mr Dlima felt bullied by being asked to attend a meeting without prior indication that they may not continue employment beyond 52 week’s absence on workers compensation leave.

  1. There was nothing unreasonable about asking Mr Dlima to attend this meeting.

Allegation 10 (Paragraph 44): 7 August 2023
Mr Dlima felt “discriminated” when asked by Ms Kayani to go home after about an hour and that he “remember[ed] seeing Mr Whelan at the office that day” and that she would have had to get approval from Mr Whelan and so he was “definitely consulted before sending [him] home”

  1. I accept Ms Kayani’s evidence in relation to this incident which she maintained during cross-examination. I accept that she did not tell Mr Dlima to go home. Rather, she met with the Applicant and spoke about how he was feeling about returning to work. It was his first day back in the office after a significant absence and it was the first day in a new office building, systems were not online and as a result there was no work to do. She said to Mr Dlima that she did not know how long it would take for the systems to be up and running and asked him if he would like to stay at work or go home. Her only motivation in doing so was her concern for his wellbeing given the length of time he had been away from the office and that he was returning to a new office with new team members and systems that were not operational. Mr Dlima said that he would stay until his Team Leader, Arun Shekhar, arrived.  Mr Shekhar subsequently told Ms Kayani that the Applicant wanted to go home, to which she said that was fine. He left and was paid for the day.[66] Far from being bullying conduct, it was a thoughtful and generous act by Ms Kayani towards Mr Dlima. It was not bullying.

Allegation 11 (Paragraph 46): 7 August 2023
Mr Dlima states that he felt bullied and harassed by all of the persons named because they repeatedly “blam[ed] [him] for the facilitated discussions that failed and saying that there was no point in them having any discussions with [him] because they will fail as [Mr Dlima is] only interested in a payout”. Mr Dlima claims this is harassment because the persons named “don’t seem to move on to real discussion to discuss real matters that may lead to some if not full resolution”.

  1. This is not an allegation of bullying. At its highest it is an expression of an opinion that they may have held, which in all the circumstances, was not an unreasonable one.

Allegation 12 (Paragraph 49): 23 August 2023
Mr Dlima felt “harassed” by the language in the F73 form filed on behalf of the persons named, “twisting the meaning of the word finality.”

  1. The completion of the Form F73 and submissions to the Commission does not constitute an allegation of bullying conduct by any person named.

Allegation 13 (Paragraph 50): 5-6 September 2023
This allegation is in relation to the selection of a mediator, where Mr Dlima alleges that Ms Kayani must have been acting on directions of superior management, including Mr Whelan.

  1. Similarly, the selection of a mediator is not an allegation of bullying conduct by either Mr Whelan nor Ms Kayani.

Allegation 14 (Paragraph 51): 25 Sept – 3 Oct
This is an allegation of ‘gang bullying’ by the persons named because Ms Kayani must have been acting on senior management directions, when she did not forward an email the mediator had asked her to.

  1. This allegation concerns arrangements for mediation with an alternative mediator, following Mr Dlima’s rejection of the first mediator proposed.  Ms Kayani had been asked on 25 September to forward information to Mr Dlima in advance of the mediation planned for 4 days later. The same day she messaged Mr Dlima seeking his consent to pass on his details to the mediation organiser. Mr Dlima messaged the next morning agreeing to this.  Ms Kayani’s evidence in cross-examination was that she was being extra cautious in light of the previous concerns he had raised and sought his consent before providing his details to the organiser.[67]   Again this is not only unreasonable conduct but was a thoughtful and highly reasonable approach for Ms Kayani to take.

Allegation 15 (Paragraph 52): 5 Sept – 13 Nov 2021
Mr Dlima says he was bullied by Mr Whelan when he sent an email to “all staff that there can be disciplinary action taken” if staff take more than the allotted time for breaks, because there was a system problem with the clocks which reduced break time by 20 and 59 seconds and Mr Whelan knew that the clock timer was faulty.

  1. This is an instance where Mr Dlima alleges that the evidence of Ms Kayani is “misleading and a lie”. There is no evidence of this and as set out above in paragraph 77 it was made clear to Mr Dlima when he raised the issue, that there was no negative impact on his performance because of the clock timer system errors, which had been raised with the system owner.  In any event, an email from Mr Whelan to all staff indicating that taking longer than permitted breaks may be a disciplinary issue, was not unreasonable, and there is no evidence that Mr Whelan was aware of the system errors when he sent the email.

Allegation 16 (Paragraph 53): 7 Aug – 10 Nov 2023
Mr Dlima alleges that he felt bullied because of the “excessive workload as the number
of account actioned was on most days more than 50 percent above the productivity target” and that he now feels afraid to make complaints.

  1. This allegation does not identify what specifically Mr Whelan is alleged to have done that constitutes bullying. Mr Dlima claims to have felt afraid to make complaints, however it does not seem to have deterred him from making them. In any event, there is insufficient evidence to make any findings about whether Mr Dlima’s workload was excessive.

Allegations against Amy Kayani

  1. Ms Kayani is a Human Resources Business Partner. The allegations against her are that:

Allegation 17 (Paragraph 35): 12 October 2022
Mr Dlima alleges he “felt harassed because [he] was given the run around for about 2 months by Amy Kayani” and that RPS provided incorrect payroll data to Allianz and he felt bullied because this was done “deliberately” to reduce his weekly payment shopping that would get him back to work sooner.

  1. There is simply no evidence of any deliberate conduct by Ms Kayani.

Allegation 18 (Paragraph 38): 29 May– 10 July 2023
Mr Dlima alleges he felt bullied by Ms Kayani as she did not respond with an outcome to his complaint made on 29 May 2023 against Rahul Lal who in March 2021 had asked Mr Dlima not to apply for a role in the team, despite informing him that she would respond.

Allegation 19 (Paragraph 42): 10 July 2023
Mr Dlima felt bullied when he received a response to his complaint from the employer’s lawyers, AI Group. He felt “threatened to receive the communication” from lawyers whilst still an employee and felt that he should be receiving responses from the employer directly and not lawyers.

  1. Mr Dlima’s complaint of 29 May 2023 related to an allegation of conduct more than 2 years earlier. Ms Kayani’s evidence, which I accept, is that she spoke with Rahul Lal, reviewed the relevant records and did not find anything that indicated Mr Dlima had been looked at unfavourably before the interview. She also noted that when Mr Dlima raised a similar issue in 2022, he did not raise any concerns about this previous issue. It would have been preferable for Ms Kayani to have informed Mr Dlima of her view, but the failure to do so does not constitute bullying behaviour. In any event, on 10 July 2023 AI Group Workplace Lawyers wrote to Mr Dlima on behalf of ARL. They advised that his emails to Ms Kayani of 29 May, 19 June, 21 June and 3 July 2023 relate to historical grievances which had previously been investigated with outcomes communicated to Mr Dlima and were formally closed. As to receiving the correspondence from his employer’s legal representative rather than directly, this does not constitute bullying.

Allegation 20 (Paragraphs 43 and 44): 10 July 2023 and 7 August 2023
These allegations are set out above in relation to Mr Whelan. For the same reasons, this allegation does not constitute bullying by Ms Kayani.

Allegation 21 (Paragraph 45): 7 August 2023
Mr Dlima alleges that he felt bullied because Ms Kayani was giving him the “run around” when she asked him to enquire with Allianz about the date when the employers 52-week obligation period ended,

  1. There is no evidence of any deliberate conduct by Ms Kayani and her suggestion to him that he contact Allianz directly was not unreasonable in the circumstances.

Allegation 22 (Paragraph 47): 11 August 2023
Mr Dlima alleges that Ms Kayani engaged in bullying conduct as she failed to respond to his request to change his contract hours from 38 to 37.5, following a change to his employment contract from ARL to RPS in June 2023.

  1. This is not an allegation of bullying conduct and was superseded by Mr Dlima’s numerous flexible work arrangement requests.

Allegation 23 (Paragraph 48): 18 August 2023
Mr Dlima alleges that he felt “harassed” as he did not receive a timely response from Ms Kayani to his request for a flexible working arrangement made on 18 August 2023, which was not responded to until 15 October 2023. Agreement was finally reached in November 2023.

Allegation 24 (Paragraph E): Sep-Oct 2023
Mr Dlima states that in Ms Kayani’s Statement, she “lied” about the complaint for flexible work arrangements as she states that she only realised on 15 October 2023 that she had overlooked his request, when she was reminded on 12 September 2023.

  1. In relation to these two related allegations, the failure to provide a timely response is not, of itself, evidence of bullying. Further, I accept Ms Kayani’s evidence that between August and October 2023, she was receiving a large number of emails from Mr Dlima, and it was difficult to keep track of his requests and respond promptly.  I accept that on about 15 October 2023, she realised she had overlooked his request of 18 August 2023, apologised for the oversight and asked him to clarify his request. I reject Mr Dlima’s submission that Ms Kayani lied to him. In the context of a large number of emails from Mr Dlima, it is inherently likely that one or more would be overlooked. I also accept that she made genuine proactive efforts to seek clarification from the Applicant about his requests, of which he had made multiple.  A separate flexible working request was approved.[68]

Allegation 25 (Paragraphs 46, 49, 50, 51 and 52)

  1. These allegations are set out above in relation to Mr Whelan. For the same reasons, this allegation does not constitute bullying by any person.

  1. Ms Kayani also gave evidence regarding her interactions with Mr Dlima. As noted above, Ms Kayani estimates that Mr Dlima has made about 30 complaints that she is aware of. To put that in context, Ms Kayani’s evidence was that from when she commenced in May 2022, there have been a total of 2 or 3 complaints from the approximately 80 employees that she is responsible for.  Ms Kayani also gave evidence that she receives about 35 emailed queries from Mr Dlima each month compared to approximately one email each six months from other employees.[69] 

  1. Ms Kayani’s evidence is that she spends significantly more time considering and responding to the Applicant’s emails than she does for any other employee, and he also telephones her more than any other employee and regularly asks for ad-hoc meetings.[70]

  1. Ms Kayani further gave evidence that she has been very uncomfortable with how the Applicant has interacted with her has become fearful of him, and has caused her stress and anxiety, including having nightmares. She stated that in her interactions with him Mr Dlima frequently becomes loud and aggressive, and talks in a way that is demeaning and belittling. 

  1. In closing submissions, Mr Dlima alleged that Ms Kayani gave false and misleading evidence, and committed an offence under s678(1) of the FW Act.[71]  This is because Mr Dlima only had one substantial meeting in person with Ms Kayani, and according to Mr Dlima’s memory, other than two video conferences around 6 July 2022 there have been no video conferences with Ms Kayani since 7 August 2023.

  1. There is no evidence to support such a serious allegation against Ms Kayani and it was not put to her. Ms Kayani agreed that there had been no video conferences since 7 August 2023, but clarified that her statement referred to the duration of her employment, which included various Teams meetings. I readily accept Ms Kayani’s evidence. As a witness, Ms Kayani was clearly becoming upset as Mr Dlima became increasingly agitated and loud during his cross-examination and regularly interrupted her, which was consistent with her evidence about his conduct. At one point, I invited Mr Dlima to take a few minutes, as he was becoming quite agitated. Whilst I accept Ms Kayani’s evidence, I do not find that Mr Dlima was deliberately intimidating Ms Kayani. I consider it more likely he spoke louder and quicker when he became agitated and frustrated, which comes across as aggressive and is unaware of the impact of his behaviour on others.[72]

Allegations against Jamie Hough

  1. Mr Hough is the Director of Panthera Finance. The allegations against him are:

Allegation 26 (Paragraph 16): March-August 2020
Mr Hough, by “an act of omission”, failed to provide a safe working environment at work.

  1. This is not an allegation of bullying behaviour by Mr Hough. There is no evidence of any role played by Mr Hough in relation to the events between March and August 2020. Whilst as a Director, Mr Hough likely had broad responsibilities under health and safety legislation, there is no evidence of any direct involvement by him.

Allegation 27 (Paragraph 17): 10 Aug – 15 Oct 2020
Mr Dlima alleges he was bullied by Mr Hough by being ‘in the loop’ in regards to various complaints made by the applicant and was therefore “indirectly engaged in the cover up” and closing of complaints.

  1. As I have found in relation to Mr Whelan, there is no evidence of a ‘cover up’ of any kind, and no evidence of Mr Hough’s involvement. In any event, this is not an allegation of bullying conduct by Mr Hough.

Allegation 28 (Paragraph 20): 22 December 2020
This allegation is referred to above and related to Mr Dlima feeling bullied because the “training room had more people than it could safely accommodate,” creasing a risk to his health and safety, and that was Mr Hough’s “responsibility as a Director.”

  1. This is not an allegation of bullying conduct by Mr Hough.

Allegation 29 (Paragraph 24): 9-13 September 2021)
Mr Dlima felt “let down” when Mr Hough declined to meet with him to address his concerns “about the continuing negligence of the management at Melbourne”.

  1. Mr Hough was under no obligation to meet with the Applicant, and not agreeing to do so does not constitute unreasonable action. Mr Dlima’s concerns were addressed by Mr McArthur.

Allegation 30 (Paragraph 25: 25 November 2021)
This allegation is referred to above in relation to the safe distancing of chairs. Mr Dlima alleges that he felt bullied because his repeated complaints since March 2020 had not delivered the desired result and management continued to be careless and negligent.

  1. For the same reasons, this is not an allegation of bullying conduct by Mr Hough.

Allegation 31 (Paragraph 34: 13 September 2022)
Mr Hough’s response of 2 September 2022 when he says “if you would like me to investigate further can you please be more specific with your complaint and realistic with your expectations about what may be done about them’ which Mr Dlima took to mean he should not expect an unbiased outcome and that he was engaging in the cover up and supporting the bullying of Richardson and Whelan.

  1. Mr Hough’s email was more than reasonable in the circumstances, and there is simply no basis for Mr Dlima’s interpretation of it.

Allegation 32 (Paragraph 36): 8 November 2022
Mr Dlima felt bullied by Mr Hough because he was “misleading [him] that the whistleblower policy is to call out breaches of the law,” and that he mentioned he would get someone to get in touch to discuss his complaints, but Mr Terranova declined to do so.

  1. This is not evidence of bullying conduct by Mr Hough. Mr Hough’s email to Mr Dlima responded to several earlier emails from him and merely provided short responses to these, including referring to some elements of the whistleblower policy. It did not purport to be a full summary of the Policy which Mr Dlima had access to, as he included it in the documentation he submitted.[73]

Allegation 33 (Paragraph 39): 20 June 2023
“I inform Mr Hough that I feel bullied by him because Mr Terranova has declined to discuss my complaints.”

  1. I have found that Mr Terranova’s decision to not meet with Mr Dlima was not bullying, and is certainly not bullying by Mr Hough.

Allegation 34 (Paragraph 40): 28 June 2023
Mr Dlima felt bullied when he realised he was not paid superannuation whilst on workers’ compensation and felt bullied by Mr Hough because Mr Dlima had “been insisting on a meeting to discuss negligence by management at Melbourne since 2020 but he has declined to meet [him] and the negligence and carelessness seems to keep continuing”.

  1. This is another formulation of the complaint by Mr Dlima that Mr Hough declined to meet with him. It was not unreasonable. The failure to pay superannuation was a mistake that was rectified as soon as it was pointed out by Mr Dlima.

Allegation 35 (Paragraph 42): 10 July 2023
This allegation is referred to above when Mr Dlima received a letter from the employer’s lawyers AI Group.

  1. In the circumstances where Mr Dlima had made such a large number of complaints, refused to accept the outcome, and continued to agitate the same issues, it was not unreasonable for the company to arrange for its lawyers to correspond in this way. It was not unreasonable.

Allegations against Frank Terranova

  1. Mr Terranova is the Chief Financial Officer and Company Secretary. The allegations against him are:

Allegation 36 (Paragraph 37): November – December 2022
Mr Terranova declined to meet the Applicant and discuss his complaints as assured by Mr Hough, and it “was obvious” that Mr Terranova and Mr Hough were engaged in a “cover up” and so were not going to respond to Mr Dlima’s complaints in accordance with the Grievance Policy that mentions ‘the investigator will ensure an impartial process’. Mr Dlima believed that Mr Terranova hoped he would “get fed up and resign.”

  1. Mr Terranova did not act unreasonably in declining to meet with Mr Dlima to discuss his complaints.  A large amount of several manager’s time and effort over an extended period of time had already gone into dealing with Mr Dlima’s complaints and they had been wholly unsuccessful in resolving them. Mr Terranova’s response made clear his reasons.  It was not unreasonable, in the circumstances, for Mr Terranova to decline to meet with Mr Dlima.

Allegation 37 (Paragraphs 46, 49, 50 and 51)

  1. These allegations are set out above in relation to Mr Whelan. For the same reasons, this allegation does not constitute bullying by any person.

Allegations against Joanna Kelly

  1. Ms Kelly is a Human Resources Business Partner. The allegations against her are:

Allegation 38 (Paragraph 29): 7-15 April 2022
Mr Dlima felt bullied when Ms Kelly informed him that “she will not investigate the complaint because [he] had initially asked her not to investigate” and that in his view, that “was not an acceptable reason.”

  1. In the circumstances, Ms Kelly did not act unreasonably. The complaint concerned a team leader, Mr Bourke, and Mr Dlima told Ms Kelly that he thought discussing the complaint with her was a waste of time, that he was working from home and only in the office a few days and was unlikely to see Mr Bourke in the near future.[74]  Where Mr Dlima had advised that he did not want the matter investigated, but changed his mind a few days later, it was not unreasonable for Ms Kelly to say that the matter was closed but that he could discuss his concerns with Mr Bourke directly. There is no obligation to investigate every complaint made by an employee and Ms Kelly’s action did not constitute bullying.

Allegation 39 (Paragraph 31): 28 April 2022
Mr Dlima felt bullied by Ms Kelly when “she lied that [his] application for the team leader position did not progress to the interview stage because [he] was recently unsuccessful at the interview for the 2IC Insurance position” which Mr Dlima states “was a lie” because he was never interviewed for the 2IC insurance position as it was withdrawn.

  1. I accept that there was inconsistent and inaccurate information given to Mr Dlima as to why his application for a team leader position was unsuccessful. However, there is no evidence that Ms Kelly lied. Whilst unfortunate and unhelpful, it does not, of itself, constitute an act of bullying. Ms Richardson conducted an internal investigation into the matters raised by Mr Dlima concerning the recruitment process, the outcomes of which were communicated to Mr Dlima. As noted at paragraph 52, Mr Dlima’s allegations of bias were not substantiated, but clearer communication should have occurred.

Allegation 40 (Paragraphs 43, 46, 49, 50 and 51).

  1. These allegations are set out above in relation to Mr Whelan. For the same reasons, these allegations do not constitute bullying by any person.

Allegations against Lorinda Richardson

  1. Ms Richardson is the Head of People & Culture. The allegations against her are:

Allegation 41 (Paragraph 32): 28 April 2022 – 28 June 2022
Mr Dlima felt bullied because Ms Richardson was taking “too long” to investigate which did not comply with Grievance Policy in force which states that complaints should be investigated by HR in 7 days; and, “more importantly” it became obvious that she was “engaging in a cover up to protect the image of her HR team” and Sam Adair.

  1. There is not a great deal of evidence about the investigation conducted by Ms Richardson, nor the precise complaint made that triggered it. It does seem clear that the investigation did not extend to the conduct of the Human Resources staff, and Ms Richardson should have communicated that to Mr Dlima. Ms Richardson’s findings about the reason for Ms Adair not being involved in the interview is also contrary to what Mr Dlima was told at the time.  Providing inconsistent information simply fuelled Mr Dlima’s suspicions and was unhelpful. However, I do not consider it constitutes bullying behaviour by Ms Richardson, nor any other person named.  That an investigation took longer than the timeframes indicated in a policy does not amount to bullying conduct. The matter was responded to by Mr Hough on 8 November 2022. This allegation is no more than an unfounded suspicion of the Applicant, without any evidence.

Allegation 40 (Paragraphs 46, 49, 50 and 51)

  1. These allegations are set out above in relation to Mr Whelan. For the same reasons this allegation does not constitute bullying by any person.

Conclusion

  1. Whilst Mr Dlima clearly believes very strongly that he has been subjected to bullying behaviour by the persons named over an extended period of time, his belief is largely based on speculation and suspicion and not evidence. Any action or inaction by a manager that Mr Dlima does not agree with is considered by him to constitute bullying.

  1. However, the legislation requires that I focus on the reasonableness of the relevant conduct, rather than Mr Dlima’s subjective perception of it. The conduct complained of by Mr Dlima, whilst in a small number of instances was not ideal, does not rise anywhere close to the level of being unreasonable workplace conduct in the sense required by Part 6-4B of the Act.

  1. For the reasons set out above, I am not satisfied that the incidents raised by Mr Dlima, considered either individually or collectively, was bullying within the meaning of s.789FD of the Act.  I therefore do not have the power to make any of the orders sought by him, and his application is dismissed.

DEPUTY PRESIDENT

Appearances:
Mr Dlima appearing on his own behalf.
Ms J Knoth Solicitor for Ai Group, with permission on behalf of the Respondent.

Hearing details:

2023
November, 29

Final written submissions:

13 December 2023


[1] [2015] FWC 774 at [99].

[2] [2023] FWC 3299.

[3] Explanatory Memorandum to the Fair Work Amendment Bill 2013.

[4] Purcell v St Aloysius College[2016] FWC 2308 at [22].

[5] Re GC[2014] FWC 6988 at [47].

[6]  Re SB[2014] FWC 2104 at [51].

[7] Transcript PN1208-1216.

[8] Hearing Book (“HB”), p.185.

[9] Applicant’s Form F72, HB p.25.

[10] HB p.187.

[11] HB p.187.

[12] HB p.187.

[13] HB p.196.

[14] HB p189.

[15] HB p.189.

[16] HB p.188

[17] HB p.189-191.     

[18] HB p.9.

[19] Ibid.

[20] HB p.163-165.

[21] HB p.162.

[22] Ibid.

[23] Ibid.

[24] HB p.196

[25] HB p.37.

[26] HB p.10.

[27] HB p.207.

[28] HB p.11.

[29] HB p.11.

[30] HB p.12.

[31] HB p.40

[32] HB p.12.

[33] HB p.41.

[34] HB p.12.

[35] HB p.174.

[36] HB p.13.

[37] HB p.310.

[38] Applicant’s Reply Submissions – Annexure ATM9k.

[39] Ibid.

[40] HB p.13.

[41] HB p.170.

[42] HB p.13.

[43] HB p.93-95.

[44] HB p.14.

[45] HB p.14

[46] HB p.70.

[47] HB p.78.

[48] HB p.44

[49] HB pg.45.

[50] HB p.45-48, 313, Applicant’s List of Documents - ATM 11 HB pg.83.

[51] HB p.46.

[52] Ibid.

[53] Witness Statement of Mr Dlima at [98], HB pg.46.

[54] Witness Statement of Mr Dlima at [103], HB p.46, 90.

[55] Witness Statement of Mr Dlima at [111], HB p.47.

[56] Witness Statement of Mr Dlima at [113-114], HB p.48.

[57] Witness Statement of Mr Dlima at [117-118], HB p.48.

[58] Witness Statement of Mr Dlima at [122], HB p.49.

[59] Witness Statement of Mr Dlima at [124-125], HB p.49.

[60] HB p.364-365.

[61] HB p.381, 212, 374, 375.

[62] Applicant’s Closing Submissions dated 4 December 2023.

[63] Applicant’s Closing Submissions dated 4 December 2023.

[64] HB p.115.

[65] HB p.112-113, 123-130.

[66] Witness Statement of Ms Kayani, HB p351-352.

[67] Transcript PN1056.

[68] Witness Statement of Ms Kayani at [20-28], HB p.136.

[69] Transcript PN1208-1216.

[70] Witness Statement of Ms Kayani, HB p.352.

[71] Applicant’s Reply at [9].

[72] Transcript PN1158-1168.

[73] HB p.144-157, p160.

[74] Witness Statement of Mr Dlima at 57, HB pg.40.

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