Application by Lindsay Rosenblum
[2023] FWC 1640
•12 JULY 2023
| [2023] FWC 1640 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Application by Lindsay Rosenblum
(AB2023/222)
| COMMISSIONER HUNT | BRISBANE, 12 JULY 2023 |
Application for an FWC order to stop bullying – employer seeking to investigate applicant and potentially dismiss applicant from her employment – application for interim orders – whether appropriate to make interim orders – ex tempore decision made – interim order made.
On 7 June 2023, Ms Lindsay Rosenblum made an application to the Fair Work Commission (the Commission) under s.789FC of the Fair Work Act 2009 (the Act), seeking an order to stop bullying. Ms Rosenblum is employed by Qld Trade Services Builders Pty Ltd t/a QLD Trade Services Builders (QTSB). The application alleges various elements of bullying conduct by Mr Bryan Roberts, Director of QTSB, together with his wife, Mrs Julie Roberts. Mrs Roberts is an Accountant from Accountancy Bookkeeping Tax Solutions (ABTS), working in the vicinity of QTSB. She also recently became a part-time employee of QTSB. QTSB and Mr and Mrs Roberts are collectively the Respondents in this matter.
QTSB is a labour hire and building services company based in Airlie Beach, Queensland. QTSB employs Ms Rosenblum, an American national, as an accounting manager/accountant on a full-time basis.
ABTS occupies office space within the QTSB premises in Airlie Beach and performs accountancy work for QTSB. Ms Rosenblum asserts that she and Mrs Roberts routinely perform accounting work for QTSB together.
Without going into all of the allegations Ms Rosenblum has made against the Respondents, in her application she asserted that the Respondents have engaged in bullying of her, including unwarranted disciplinary action. Ms Rosenblum has not attended work since mid-April 2023 when she became unwell. She has largely been on unpaid leave. She has made a claim for workers’ compensation; the decision of which is pending.
On 21 June 2023, Employsure Law Pty Ltd communicated that it was acting on behalf of QTSB and Mr Roberts. A Form F73 was filed on behalf of QTSB. Mr Roberts elected, as is his right, not to complete a Form F74. QTSB objected to the application on the basis that the alleged bullying was reasonable management action, carried out in a reasonable manner.
Mrs Roberts sent the following email to the Anti-Bullying Sexual Harassment team on 20 June 2023:
“Dear Fair Work Commission
This matter has nothing to do with me and is not my concern.
Rosenblum has included me in this claim, but not the previous claims she has made.
Rosenblum thinks that me giving the correct and honest information to companies handling claims on her behalf is bullying towards her.
Rubbish, the truth is the truth, not bullying.
I have no intention of completing any forms on behalf of my business or myself in this matter.
Rosenblum was not employed by me, I did not work with her and have never worked with her.
QTS has separate offices next door. Rosenblum has an office next door not in my office space.
I did not work for QTS in any capacity prior to Rosenblum becoming ‘sick’.
Rosenblum and I do not do routine accounting work together for QTS.
We have an accountant in Townsville that Rosenblum dealt with, not me.
I find Rosenblum’s demands threatening and bordering on bullying towards me.
I have no intention of putting myself through this farce of a claim.
Should you have any queries, please do not hesitate to call me.
Kind Regards,
Julie Roberts
Senior Accountant”
The application was allocated to me on 26 June 2023. On 30 June 2023, correspondence was sent from my chambers to the parties, informing them of a telephone conference to take place at 2:00pm on 6 July 2023. Mrs Roberts had not copied in the other parties to her correspondence of 20 June 2023, and accordingly it was provided to the other parties. The correspondence included the following communication:
“A link to the Commission’s Stop Bullying Bench Book is provided for the benefit of the parties: Stop Bullying Benchbook (fwc.gov.au)
In consideration of Ms Roberts’ email, the Commissioner directs Ms Julie Roberts to attend the conference. If Ms Roberts is unwilling to attend as directed, the Commissioner will issue an order for her attendance. Ms Roberts may give consideration to page 57 of the Bench Book, explaining a case determined before the Commission where the persons named did not work within the same business as the applicant, but within the same vicinity.”
Ms Rosenblum’s representative advised that her barrister was not available on 6 July 2023 to participate in the telephone conference. Communication was sent to the parties, moving the conference to 17 July 2023. Mrs Roberts communicated that she was not available on 17 July 2023, as she is an accountant and it is tax season, stating that she has back-to-back appointments on that day.
On 4 July 2023, my Associate wrote to the parties with proposed dates for a telephone conference. Mrs Roberts communicated that she was only available on 28 July 2023 and noted that her calendar is filling up quickly. Ms Rosenblum’s representative communicated that her barrister was also available on 28 July 2023.
Application for interim order
On 5 July 2023, Ms Rosenblum’s representative made an application for an interim order as follows:
“…for the duration of the anti-bullying proceeding:
1. The Respondents suspend the current disciplinary process against the Applicant with immediate effect.
2. The Respondents do not instigate further disciplinary processes against the Applicant.
3. The Respondents take no action, and cause no action to be taken, that leads to the termination of the Applicant’s employment; and
4. The Respondents only communicate with the Applicant via the Applicant’s legal representative.”
The application was made as Mrs Roberts sent a letter directly to Ms Rosenblum (not through her representative) on 5 July 2023. The letter was sent on QTSB letterhead and was authored by Mrs Roberts, Accountant.
The letter contained 12 allegations of serious misconduct, spanning the period from June 2021 to April 2023. The letter included the following:
“If proven these matters may result in the termination of your employment without notice.
Prior to any decision being made, and to enable a full and detailed investigation of this matter, we request your attendance at a disciplinary meeting which has been specifically convened to provide a suitable opportunity for you to respond to these particular allegations.
This disciplinary meeting is to be conducted at 3.30 pm on 6 July 2023 via Zoom Conference call.
Zoom Link: Zoom Link
Meeting ID: [REDACTED]
You are expected to make every effort to attend this meeting and are placed on notice that the Company reserves the right to make a determination in your absence if you fail to attend this meeting for whatever reason.
The Company confirms a representative of Employsure will be present at the meeting. The role of the Employsure representative is to support/facilitate the meeting and to ensure procedural fairness.
I will have sole responsibility for the conduct of this meeting, together with any resulting decision which is to be made.
You are of course welcome to bring a support person to this meeting should you choose.
All matters and information relating to these allegations are confidential and you are directed not to discuss them with any other person without my express prior consent. Any failure by you to maintain confidentiality may lead to disciplinary action.
If you have any enquiries in relation to this matter, please contact me on [number].
Yours sincerely
Julie Roberts
Accountant”
Given the urgency of the application, with the potential for a decision to be made to terminate Ms Rosenblum’s employment as early as 6 July 2023, including if she did not attend the meeting ‘for whatever reason’, I listed the matter for Hearing by video using Microsoft Teams at 11:30am (AEST) on 6 July 2023. Ms Rosenblum was granted leave to be represented by Mr Chris O’Callaghan of O’Callaghan Workplace Law. QTSB, ABTS and Mr and Mrs Roberts were granted leave to be represented by Ms Mariam Noorzai of Employsure Law.
Ex tempore decision and interim order made
At the conclusion of the hearing on 6 July 2023, I delivered a brief ex tempore decision. I informed the parties I would issue an interim order, which I did on 6 July 2023 [PR763993]. I informed the parties I would issue reasons for the decision.
Relevant Legislation
Section 589 of the Act provides as follows:
“589 Procedural and interim decisions
(1)The FWC may make decisions as to how, when and where a matter is to be dealt with.
(2)The FWC may make an interim decision in relation to a matter before it.
(3)The FWC may make a decision under this section:
(a)on its own initiative; or
(b)on application.
(4)This section does not limit the FWC’s power to make decisions.”
Interim order application – grounds
Ms Rosenblum pressed for the making of an interim order on the following grounds:
· The parties are due to attend a conference shortly.
· One of the examples of bullying that Ms Rosenblum alleges is the taking of unwarranted disciplinary action. Ms Rosenblum contends that the letter she received in the morning of 5 July 2023 is further unwarranted disciplinary action.
· Ms Rosenblum is currently off work with an illness she alleges was caused by bullying.
· The Respondents are trying to avoid the Commission’s anti-bullying process by terminating Ms Rosenblum’s employment prior to the conference to take the matter out of the Commission’s jurisdiction.
· Given Mrs Roberts email to the Commission of 20 June 2023, it is unclear what authority (if she has any at all) Mrs Roberts is acting under when she sent the letter to Ms Rosenblum, particularly when Employsure appear to be representing some of the Respondents.
· The conduct of the Respondents is unreasonable and is aggravating Ms Rosenblum’s illness and enlivens the Act’s costs jurisdiction.
· If the disciplinary process is not suspended with immediate effect, then Ms Rosenblum will be unable to secure the remedy she seeks from the Commission.
· The balance of convenience favours the granting of the application given there is no discernible prejudice to the Respondents in doing so – Ms Rosenblum is not at work and she is not drawing a salary from the Respondent.
· This is a serious question to be tried at the full hearing.
Ms Rosenblum’s submissions
Ms Rosenblum referred to the Full Bench decision of Virginia Wills v Grant, Marley & The Government of New South Wales, Sydney Trains and Another,[1] where the Full Bench comprehensively prescribed the Commission’s approach to dealing with s.589(2) applications made within the anti-bullying regime of the Act.
It was submitted that the Full Bench made it clear that the Commission has the power to make interim orders in applications for anti-bullying orders.[2] It also made it clear that the usual judicial rules the Courts apply when considering the granting of injunctive relief do not apply to applications for interim orders in applications under s.789FC of the Act. In doing so, it emphasised that the preconditions to be met are found in s.789FF of the Act, namely that:
· the worker has been bullied at work by an individual or a group of individuals; and
· there is a risk that the worker will continue to be bullied at work by the individual or group.
In describing how the Commission can be satisfied that those preconditions are met, the Full Bench relevantly stated:
“[…] The Appellant’s submission proceeds on the apparent assumption that, at an interlocutory hearing in which an applicant for an anti bullying order seeks an interim decision pursuant to s.589(2), it would not be possible for the Commission to reach the requisite state of satisfaction concerning the matters specified in s.789FF(1)(b)(i) and (ii). That assumption is not valid. What provisions of this nature require is ‘an opinion or satisfaction formed reasonably upon the material before the decision maker’. We can see no reason why, for the purpose of an interlocutory hearing, it would be impossible for an applicant to put before the Commission sufficient material for the Commission to reach the requisite state of satisfaction under s.789FF(1)(b)(i) and (ii) at that time. In this case in particular, it seems to us that the primary facts of the Appellant’s case that the conduct of the disciplinary process to date has been unreasonable can for the most part be established on the basis of the written communications passing between the parties, with the question of whether the Commission may be satisfied as to the 789FF(1)(b)(i) and (ii) matters turning on the proper inferences to be drawn from those primary facts. Once the requisite state of satisfaction has been reached, the Commission has a wide discretion under s.789FF(1) as to the making of appropriate interim orders to remain in place pending the final hearing and determination of the application.” (emphasis added by the Applicant).
Ms Rosenblum contended that there is nothing controversial in this approach to meeting the required state of opinion or satisfaction, particularly in interlocutory applications.
Further, given the narrow scope of this application, to make the interim order, Ms Rosenblum submitted the Commission need not be satisfied that all the incidents Ms Rosenblum lists in her original application constitute bullying, nor need it be satisfied that there is a risk of that course of conduct continuing. To make the interim order, the Commission must simply be satisfied that the resumption of the disciplinary process as notified to Ms Rosenblum on 5 July 2023:
· constitutes bullying of Ms Rosenblum at work by the Respondents; and
· if the disciplinary process is not suspended for the duration of the proceeding, there is a risk that Ms Rosenblum will continue to be bullied at work by the Respondents.
Ms Rosenblum sought an interim order in respect of one specific mechanism she submitted the Respondents employed to bully her - unwarranted disciplinary action. She submitted that although that mechanism has its genesis in a broader course of conduct of repeated unreasonable behaviour outlined in the original application, it is unnecessary for the Commission to determine the balance of those allegations. The Commission can, however, have regard to the material relating to those matters because it is “material before the Commission”.[3]
No prejudice to the Respondents
Ms Rosenblum submitted that there is no prejudice to the Respondents in the Commission making an adverse interim finding because as the Full Bench recognised, it may transpire that further evidence comes to light that changes the Commission’s ultimate view.[4]
Furthermore, prejudice must also be assessed in light of what the Respondents can lawfully do with an employee who:
· is absent with a mental health condition;
· has exercised their workplace right to make an application under workers’ compensation; and
· has exercised their workplace right to make an anti-bullying application to the Commission.
Ms Rosenblum is not receiving any payment from the Respondent on account of being on unpaid leave.
The Employsure email
Employsure provides advice and advocacy to employers. It has two arms; Employsure Pty Ltd which provides advice to employers; and Employsure Law Pty Ltd, a law firm. Legal advice from Employsure Law Pty Ltd may attract legal professional privilege. Advice from Employsure Pty Ltd would not attract legal professional privilege.
On 17 April 2023, Ms Rosenblum stated that Mr Roberts called Employsure after he screamed obscenities at her on the telephone, and it was after that incident that she received the following email from Employsure Pty Ltd, addressed to Mr Roberts but sent to an email account she manages:
“Dear Bryan
Our line was disconnected and I attempted to give you a call on [REDACTED] however, I was unable to reach you at this time and I have left you a voice message.
I would confirm the following advice:
- there is no evidence or written confirmation of the pay increase change that stipulates 100k inclusive superannuation, this will be difficult to prove, however, I do still recommend conducting a serious misconduct disciplinary meeting and see if she admits to this allegation. In the meantime, I would recommend looking to see if there was any email correspondence or text message exchange of this pay rise.
- I would also recommend to include her refusal to follow management instructions to work from office and her failure to attend the meeting.Could you please contact me back on [REDACTED] so I can discuss this further for you and advice on the disciplinary process?
Regards
Thas
…
Lead Employment Relations Advisor
Employsure Pty Ltd”
Ms Rosenblum submitted that the email from Employsure speaks for itself, where she denies she has overpaid herself and where she maintains that her agreed salary with Mr Roberts since January 2022 has been $100,000 plus superannuation. Ms Rosenblum contended that the Respondent took no action to prevent the Employsure email reaching her and she considers it was done purposely to intimidate her.
Ms Rosenblum submitted that the Employsure email demonstrates that the Respondent does not have any evidence that she has been purportedly overpaying herself, instead suggesting the disciplinary meeting take place in the hope she might make an admission. It is submitted that the Respondents followed the Employsure advice, seeking to illicit a ‘confession’ from Ms Rosenblum and commenced disciplinary action knowing there were no grounds to do so.
It was submitted that commencing disciplinary action against Ms Rosenblum was disingenuousness, and it was calculated to apply unreasonable pressure on her to agree to something she had no obligation to agree to.
5 July 2023 letter
In respect of the 5 July 2023 requirement to attend a disciplinary meeting on 6 July 2023, it was submitted the following is evidence of unreasonable behaviour:
· It was issued knowing that Ms Rosenblum had sought the assistance of the Commission to resolve her bullying complaints and the Commission was in the midst of scheduling a conference.
· It was issued knowing that Ms Rosenblum was absent with a mental illness in respect of which she has made an application under the Workers Compensation and Rehabilitation Act 2003 (Qld) (WCR Act).
· It was issued without having regard to the Work Capacity Certificates Ms Rosenblum supplied to the Respondents which note her condition and her functional incapacity.
· It was issued knowing that the Respondents had refused to release Ms Rosenblum’s employee records, which made responding to many of the allegations levelled against her impossible.
· The allegations themselves are vague and unparticularised, making responding to them almost impossible other than denying them in general terms.
· The Respondents afforded Ms Rosenblum barely 24 hours to prepare for a disciplinary meeting addressing a multitude of serious allegations, including theft.
· The Respondents expected Ms Rosenblum to respond without having access to the company’s IT systems to evaluate the veracity of the charges and/or marshal exculpatory evidence.
· Ms Rosenblum was placed on notice that a determination could be made in her absence if she failed to attend the meeting “for whatever reason”.
· Despite Mrs Roberts on 20 June 2023 vehemently claiming not to have anything to do with the matters Ms Rosenblum complains about, confusingly she is now investigating and determining the allegations against Ms Rosenblum; and
· The Respondents imposed requirements on Ms Rosenblum, namely that employees absent with illness respond to disciplinary allegations and participate in disciplinary meetings, that employees with a mental disability cannot comply with, or can only comply with whilst suffering serious disadvantage in the form of an aggravation of her mental health condition.
It was submitted that the timing of the issuance of the 5 July 2023 letter also raises an inference adverse to the Respondents, in that Ms Rosenblum is fast approaching a period of three months of absence from work which may remove the protection s.352 of the Act currently affords her.
In all the circumstances, the Applicant submitted that the resumption of the disciplinary process has all the hallmarks of a feeble attempt to disguise the predeterminism in the forthcoming termination.
Risk of further bullying
Ms Rosenblum submitted that nothing, it seems, will deter the Respondents from their unreasonable behaviour towards her. She submitted that the involvement of WorkCover Queensland, Ms Rosenblum’s income protection insurer, and the involvement of Ms Rosenblum’s legal representative failed to yield even a temporary abatement of the bullying of her. The Commission’s involvement upon the application having been made, it is submitted, has escalated the behaviour where termination of employment is threatened.
Ms Rosenblum submitted that the tone and content of Mrs Roberts’ correspondence of 20 June 2023 to the Commission is further bullying of her, as Mrs Roberts engages in belittling and dismissive conduct, and makes derogatory statements about Ms Rosenblum. Exception is taken to the following statement:
“I did not work for QTS in any capacity prior to Ms Rosenblum becoming ‘sick’”.
Ms Rosenblum asserted that Mrs Roberts’ email to the Commission reflects the unreasonable conduct she describes in her original application, and the conduct was not any better in the hearing before the Commission on 6 July 2023. Mrs Roberts was asked in cross-examination about Ms Rosenblum’s illness to which she answered that Ms Rosenblum conveniently became ill when she received the first disciplinary letter. When pressed if she considered Ms Rosenblum has a medical condition now, she answered no, she does not accept that she has a medical condition.
It is Ms Rosenblum’s position that unless the Respondents withdraw the disciplinary allegations, the process will run its course and it is inevitable that a decision adverse to Ms Rosenblum will be made. While the Respondents stated during the hearing that the disciplinary meeting of 6 July 2023 would not occur, it could be reinstated on another day, and the Respondent may seek to insist Ms Rosenblum to attend, even if she does not have capacity to do so on account of her illness.
Witness Statement of Ms Rosenblum
Ms Rosenblum stated that on 3 April 2023, following her refusal to agree to Mr Roberts’ demand to work from the office full-time, a junior colleague named Steph called her and requested the Employsure client ID number. Ms Rosenblum gave it to her. Later that day, Ms Rosenblum received an email from Employsure with work from home policies added to the sample contract and handbook.
On 17 April 2023, Ms Rosenblum received the email from Employsure at [27].
Ms Rosenblum stated that when she read the email from Employsure on 17 April 2023, she was shocked that Mr Roberts was pursing her when he had no evidence of wrongdoing. She suspected that he had purposely allowed the Employsure email to come to her in order to intimidate her.
Invite to disciplinary meeting of 5 July 2023
Throughout the dispute Ms Rosenblum has had with the Respondents, Ms Rosenblum has retained Mr O’Callaghan, and he has been corresponding with them on her behalf. Ms Rosenblum was not therefore expecting to receive an email and a letter directly from Mrs Roberts.
Mrs Roberts has communicated with Ms Rosenblum via her solicitor since she commenced exercising her rights at work. Ms Rosenblum considered some of those communications are aggressive and intimidating. Ms Rosenblum considered Mrs Roberts’ email to the Commission at [6] to be especially hurtful. She is also of the view that Mrs Roberts has made derogatory and false representations to WorkCover Queensland and to her income protection insurance provider about her.
Ms Rosenblum was not expecting to receive a letter directly from Mrs Roberts with a range of serious allegations, inviting her to a disciplinary meeting. Ms Rosenblum also noticed that Mrs Roberts now appears to have an Accountant role with QTSB, which is in all likelihood is very similar to the function that she performs, and she found it intimidating to read this on her letter and email.
Ms Rosenblum does not understand many of the allegations, and she cannot respond without further details. On her behalf, Mr O’Callaghan sought her employee records from the Respondent which were refused. Ms Rosenblum stated that not having them compounds the difficulty in responding to allegations concerning her wages and entitlements.
Ms Rosenblum stated that her health also prevents her from responding to the allegations. For a while now, she has been unwell and under the care of her General Practitioner and a psychologist. Ms Rosenblum made a WorkCover claim and provided the Respondents with Work Capacity Certificates which show she lacked capacity to work.
Ms Rosenblum stated she does not know what her leave balances are because her employer has not provided her with any payslips or her employee records since she took leave. She is not receiving an income from her employer. She considered that it is costing QTSB very little, if anything, to continue her employment given she is on unpaid sick leave.
Ms Rosenblum stated that when working, she never knew when Mr Roberts would attend work on any given day. She lived in a constant state of trepidation because of the erratic way he treated her. Ms Rosenblum said this is continuing in the way the Respondents are responding to her anti-bullying application, by sending to her an inflammatory document out of the blue.
On 5 July 2023, when she received the email from Mrs Roberts to attend a disciplinary meeting the next day, Ms Rosenblum said her chest started to burn and her throat tightened. Hours later, she still had not eaten and her head was pounding. She slept very little that night. She said she is overwhelmed and on the verge of tears.
As a result of receiving the letter, she consulted a psychologist she is seeing due to the alleged bullying. Ms Rosenblum’s psychologist provided the following letter after her consultation on 5 July 2023:
“To Whom It May Concern,
RE: Ms Lindsay Rosenblum
Ms Rosenblum has been attending therapy with me for several months. She currently meets the criteria for a diagnosis of Post Traumatic Stress Disorder (PTSD), initiated by altercations within her work environment with her employer. Due to the nature of these interactions, Ms Rosenblum has additionally developed symptoms aligning with Agoraphobia. Putting her at substantial risk of social isolation and further mental health decline.
It is my professional opinion that confrontation with her employer, in the form of a disciplinary meeting, at this time, would have a significant negative impact on Ms Rosenblum’s recovery, risking escalation of symptoms and a deterioration of any progress Ms Rosenblum has made thus far.
Please do not hesitate to contact me if you have any questions or concerns.
Kind Regards
Sarah Krueger
Psychologist”
Ms Rosenblum said she is tired of the falsehoods levelled at her and of having to defend herself against scurrilous allegations that have the potential to ruin her career as an Accountant. Ms Rosenblum said she has PTSD from working with the Respondents and she is struggling to get out from under it. She does not want to be fearful of leaving the house by herself.
Ms Rosenblum gave oral evidence during the hearing and was cross-examined. She stated that she attempted to resign in January 2022, and it was at this point she negotiated new contractual terms with Mr Roberts, providing for a salary of $100,000 plus superannuation. This was verbally agreed to and had been in place up until April 2023 when it was challenged, and the accusations made against her. She stated that Mr Roberts has approved payroll every fortnight and seen every one of her payslips during this time.
Ms Rosenblum stated that the bullying behaviour intensified when she was directed to return to working from the office full-time. She had largely been working from home since January 2022.
The Respondents’ Submissions
The Respondents submitted that the serious question of whether Ms Rosenblum has been in fact bullied is yet to be determined, and while Ms Rosenblum is not actually present at work, there is no risk to her of being bullied.
The Respondents referred to s.789FD of the Act, which relevantly sets out the circumstances in which a worker has been bullied at work, namely:
“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 employees;
repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
(b)that behaviour creates a risk to health and safety.
(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.
(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:
(a)the person is:
(i)a constitutional corporation; or
(ii)the Commonwealth; or
(iii)a Commonwealth authority; or
(iv)a body corporate incorporated in a Territory; or
(b)the business or undertaking is conducted principally in a Territory or Commonwealth place;
then the business or undertaking is a constitutionally-covered business.”
The Respondents deny that Ms Rosenblum has been subject to repeated unreasonable behaviour that would create a risk to health and safety.
The Respondents contended that Ms Rosenblum has never expressed dissatisfaction at her treatment in the workplace or made a complaint (informally or formally) of any kind relating to her treatment in the workplace, bullying or harassment. None of the behaviours or conduct can be linked to a risk to the health and safety of Ms Rosenblum or any other employee. The Respondents submitted that Ms Rosenblum refers to risks of health and safety that are merely conceptual, not real.[5]
Regardless, the Respondents submitted that even if the behaviour fell within the meaning of s.789FD(1) of the Act, which is denied, the behaviour does not amount to bullying as it was reasonable management action carried out in a reasonable manner.
The Respondents noted that the test is whether the management action was reasonable, not whether it could be more reasonable or more acceptable.[6] The Respondents submitted any conduct they have engaged in was reasonable management action carried out in a reasonable manner.
The Respondents contended that Ms Rosenblum may perceive their actions to be unreasonable, but Ms Rosenblum does not take the actual circumstances into consideration. Any unreasonableness must arise from the actual management action in question, rather than Ms Rosenblum’s perception of it.[7]
The Respondents submitted that Ms Rosenblum has not shown that the management action lacked any evidence or intelligible justification, such that it would be considered by a reasonable person to be unreasonable in all the circumstances.[8]
In any event, the Respondents submitted that they have acted reasonably in:
· discussing with Ms Rosenblum’s her decision to overpay herself;
· writing to Ms Rosenblum of allegations of serious misconduct, including theft, and misconduct on 17 April 2023; and
· scheduling a disciplinary meeting to discuss the allegations on 19 April 2023 and 6 July 2023 (now postponed indefinitely).
The Respondents asserted that the reasonable management actions were conducted in a reasonable manner as Ms Rosenblum was:
· provided fair processes;
· provided reasonable explanations for the Respondents’ decisions and actions; and
· not denied the opportunity to have a support person at any meetings scheduled by QTSB.
The Respondents submitted that at all material times Ms Rosenblum has been treated with respect in the workplace.
The Respondents relied on the jurisdictional objection established in section 789FD(1) of the Act and submitted that the application lacks jurisdiction to be determined by the Commission.
The Respondents relied on the following authorities as binding upon the Commission to dismiss the interim orders ought by Ms Rosenblum, being:
· Mayson v Mylan Health P/L and Ors[2020] FWC 1404 (Colman DP, 17 March 2020); and
· Ms Virginia Wills v Grant, Marley & The Government of New South Wales, Sydney Trains and Another[2020] FWCFB 4514 (Ross J, Hatcher VP and Gostencnik DP, 28 August 2020).
In Mayson,[9] the applicant sought interim orders to stop her employer and four named individuals from taking further disciplinary action against her or terminating her employment until the final hearing and determination of her workplace bullying application. The application for interim orders was dismissed.
The Deputy President in Mayson rejected the applicant’s argument that s.589(2) of the Act is a discrete source of power for the Commission to make interim orders in workplace bullying cases. An application under s.789FC alleging that a worker has been bullied at work seeks an order under s.789FF to prevent the worker from being bullied by those individuals. Any order made in relation to a s.789FC application is an order under s.789FF and needs to meet its requirement.
It was not enough for the Commission, in this case, to be persuaded that the applicant had a prima facie case and that the balance of convenience was in her favour in order to make the interim orders. As the Deputy President was not yet satisfied that the worker had been bullied at work, or that there was a risk that the bullying would continue, the Commission did not have power to make orders to stop the behaviour and dismissed the application for interim orders.
The Respondents in this matter submitted an interim order to stop bullying cannot be issued based only on a prima facie case, or serious question to be determined, and the balance of convenience favouring the grant of the interim order. The Commission can only make an order to stop bullying, including an interim order, if it is satisfied that a worker has been bullied at work and there is a risk that the bullying will continue.
The Commission rejected the applicant’s argument that an interim order should be granted because it was necessary for her employment to continue so that the Commission could determine her workplace bullying application. The purpose of making orders to stop workplace bullying is to prevent a worker from being bullied at work, not to prevent the termination of their employment.
In relation to the Full Bench decision of Wills,[10] the applicant in that matter filed an application for interim orders to restrain the respondents from taking any further step in relation to its investigation of the applicant, imposing any disciplinary sanction on the applicant and/or terminating the applicant’s employment. The application for interlocutory relief was dismissed and the decision was appealed.
The Respondents noted that the appeal was dismissed as the Full Bench was not satisfied that the worker had been bullied at work or that there was a risk that the bullying would continue.
The Respondents submitted that relevantly, in the matters of Mayson and Wills, it was established that the Commission can only make an order to stop bullying, including an interim order, if it is satisfied that a worker has been bullied at work and there is a risk that the bullying will continue.
The Respondents claim that this matter is yet to fully establish and determine whether Ms Rosenblum has a prima facie case. The Respondents submitted that the Commission cannot be satisfied that Ms Rosenblum has been bullied at work given the matter is yet to be heard at a formal hearing or trial. As this is a two-pronged test, whether Ms Rosenblum faces a risk of continued bullying is also highly relevant to this matter. The Respondents agrees with Ms Rosenblum that there is a serious question to be tried at a full hearing, which only highlights the Commission’s inability to make the order sought by Ms Rosenblum.
It is submitted that there is no risk to Ms Rosenblum of being ‘bullied’ or the continuance of the alleged bullying as Ms Rosenblum is no longer attending work and is not drawing a salary from QTSB. Furthermore, the disciplinary meeting which was scheduled for 6 July 2023 has been postponed to a later date (yet to be fixed). The Respondents, therefore submitted that this application, on the facts, fails on both prongs of the relevant test to be applied.
Additionally, the Respondents asserted that the purpose of making orders (inclusive of interim orders) to stop workplace bullying is to prevent a worker from being bullied at work, not to prevent the termination of their employment. It submitted that the purpose of the application for an interim order is clearly to prevent the disciplinary process (which would be categorised as reasonable management action) which could ultimately lead to Ms Rosenblum’s termination. It is submitted that the Commission should not intervene in the Respondents’ disciplinary process.
For the reasons outlined above, the Respondents submitted that the Commission should dismiss the application for an interim order.
Evidence given by Mrs Roberts at the Hearing
A witness statement was not prepared by Mrs Roberts prior to the hearing; she gave oral evidence and was cross-examined. Mrs Roberts stated that she now performs work part-time as an Accountant for QTSB as well as performing work in her own business. She has been vested with decision-making authority by Mr Roberts with respect to decisions QTSB might make about Ms Rosenblum.
In evidence-in-chief, Mrs Roberts stated that up until 17 April 2023, she had never seen Ms Rosenblum display signs of stress. She considered Ms Rosenblum made herself unavailable to attend work due to receiving notice of disciplinary action surrounding an investigation into her annual salary. Further, she was being requested to perform work in the office, rather than continue to work from home.
Mrs Roberts stated that when COVID-19 first came to Australia, the employees in the business were converted from permanent employees to casual employees. The business decided in 2022 to then convert employees to permanent, however it was discovered that Ms Rosenblum had unliterally done so in respect of her own conditions six months earlier. That is, she was accruing annual leave and sick leave without the approval of Mr Roberts.
In cross-examination, Mrs Roberts agreed that one can bully another if they continue to have contact with the person. She confirmed that she sent the letter of 5 July 2023 directly to Ms Rosenblum. She stated that she did so as she needs the business to ‘move forward’. She did so on the advice of Employsure Pty Ltd (the advice arm of Employsure). She said she thought it was a good business decision to do so.
Mrs Roberts stated that she sent the letter because the business needs to know where business processes are located, and in respect of some of these issues, only Mrs Rosenblum knows the processes. She accepts that the letter issued to her raised none of the business process issues.
Mrs Roberts stated that it’s difficult to find people to perform work in a regional area and Ms Rosenblum’s position hasn’t been filled, even with temporary employees.
In oral evidence, Mrs Roberts stated that she does not accept that Ms Rosenblum has a medical condition. She considers that she conveniently became ill when she received a disciplinary letter.
In re-examination, Mrs Roberts stated that Ms Rosenblum was asked to work from the office to show others how work is done. Ms Rosenblum refused, saying she thought there was a better way to do it. When she received a disciplinary letter, within 24 hours she had produced a medical certificate certifying her unfit for work, specifying only a ‘medical condition’.
In answering questions from me as to when the business may wish to meet with Ms Rosenblum to put all of the allegations to her, Mrs Roberts stated she will seek advice from Employsure and do what they advise. Mrs Roberts said this would occur at some point. Mrs Roberts does not have regard to Ms Rosenblum being unwell.
Evidence given by Mr Roberts at the Hearing
A witness statement was not prepared by Mr Roberts prior to the hearing; he gave oral evidence and was cross-examined.
Mr Roberts stated that the Employsure email to him of 17 April 2023 was accidentally sent to Ms Rosenblum.
He stated that continuing to employ Ms Rosenblum on unpaid leave does not come without cost; the business continues to pay workers’ compensation premiums in respect of her employment. He considers her continued absence to be detrimental to the business and it is difficult to replace her. One casual employee worked for two weeks, then left to return home overseas. The business now has an advertisement on Seek.
Mr Roberts stated that he does have evidence that Ms Rosenblum was overpaying herself. He considers the business is entitled to have a meeting with her to discuss the issue. When pressed as to when that would occur, he said the business would take advice from Employsure.
Consideration
Having heard oral evidence on 6 July 2023, together with Ms Rosenblum’s written evidence filed the morning of the hearing, I satisfied myself that while Ms Rosenblum was at work (albeit on unpaid sick leave), Mrs Roberts had repeatedly behaved unreasonably towards her. I was satisfied that the behaviour had created a risk to Ms Rosenblum’s health and safety. I was further satisfied that the action was not reasonable management action carried out in a reasonable manner. I was satisfied that there was a risk that Ms Rosenblum would continue to be bullied at work by Mrs Roberts. Accordingly, I found it necessary that an interim order be made to prevent the Respondents from taking any further steps to finalise the investigation of Ms Rosenblum and engage in any further disciplinary action on Ms Rosenblum until the determination of the s.789FC application.
My satisfaction above is in respect of Mrs Roberts’ conduct towards Ms Rosenblum on the following occasions:
(a) The email of Mrs Roberts to the Commission dated 20 June 2023 where she stated that Rosenblum had become ‘sick’. I consider this to be an extraordinarily rude attack on Ms Rosenblum’s integrity. Mrs Roberts did not have the decency to address Ms Rosenblum by her title. Further, by suggesting that she was ‘sick’ indicates that Mrs Roberts considers this is untrue. Ms Rosenblum had been certified as unfit for work for a period of approximately two months when Mrs Roberts wrote the above email. None of the Respondents have sought to require Ms Rosenblum to be examined by an independent medical examiner if there was any doubt about her capacity;
(b) The email Mrs Roberts sent directly to Ms Rosenblum on 5 July 2023, requiring her to attend a disciplinary meeting the next day to address 12 allegations. It was inappropriate for Mrs Roberts to directly email Ms Rosenblum while she is legally represented; the fact that Ms Rosenblum is legally represented is known to Mrs Roberts. Further, it was unreasonable to title the letter a disciplinary meeting, when in truth, it ought to have been an investigation meeting, as allegations were proposed to be put to Ms Rosenblum. It was unreasonable to inform Ms Rosenblum in the letter that any failure to attend the meeting, for whatever reason, might result in a decision being made, which could include termination of her employment. Ms Rosenblum was certified unfit to attend for work, let alone a serious investigation meeting requiring her attendance one day after receipt of the allegations. None of Mrs Roberts’ actions were reasonable management action carried out in a reasonable manner;
(c) Mrs Roberts’ conduct during the hearing. Mrs Roberts’ attitude towards Ms Rosenblum’s incapacity was disturbing. Mrs Roberts came across as aggressive and extraordinarily disrespectful of Ms Rosenblum’s absence from work, which is unpaid. Further, Mrs Roberts’ explanation that by calling the 6 July 2023 meeting she wanted to learn of the business processes that only Ms Rosenblum appears to know is implausible. None of those questions were posed within the 5 July 2023 letter. The purpose of the meeting was to put a large number of allegations of serious misconduct towards Ms Rosenblum and for Mrs Roberts to solely make a determination on those issues; and
(d) Mrs Roberts could not provide a satisfactory answer as to when a further disciplinary meeting (which ought to be an investigation meeting) might occur. She said she would obtain advice, however I held genuine concern that Mrs Roberts would, in the absence of an interim order of the Commission being made, act unreasonably towards Ms Rosenblum. Mrs Roberts did not provide any undertaking to the Commission in respect of her future conduct towards Ms Rosenblum, and if she had have made some commitment, based on my perception of Mrs Roberts’ conduct during the hearing, I consider there to be some risk that Mrs Roberts would not hold herself to such a standard.
For the sake of clarity, the decision I made on 6 July 2023 to make an interim order in these proceedings did not relate to any matters other than those described in [92] above. I have not formed any view as to whether the earlier incidents complained of by Ms Rosenblum constitute unreasonable behaviour by Mr or Mrs Roberts. Such matters would be dealt with at a hearing of the substantive complaints.
In respect of Mr Roberts’ conduct, it appears that he has vested in Mrs Roberts the decision-making powers with respect to matters involving Ms Rosenblum. Given what I have stated at [93] above, the decision I made on 6 July 2023 did not take into consideration any alleged conduct involving Mr Roberts. Any alleged bullying by Mr Roberts will be the subject of a further hearing where evidence with respect to the substantive allegations arising pre-5 July 2023 will be given by all parties.
The interim order made by me further prevents the Respondents from communicating directly with Ms Rosenblum. I considered it essential to protect Ms Rosenblum from direct communication from Mrs Roberts, which I accept has caused Ms Rosenblum distress.
It appears the parties are available to participate in a conference before me on 28 July 2023, where the application will be progressed, and programming of a future hearing discussed. If the parties are interested and available, I am pleased to work with them to find an earlier date to convene the conference. The parties are invited to communicate with my chambers if they so wish.
COMMISSIONER
Appearances:
C O’Callaghan of O’Callaghan Workplace Law, with permission, for Ms Rosenblum.
M Noorzai of Employsure Law, with permission, with B Roberts of Qld Trade Services Builders Pty Ltd t/a QLD Trade Services Builders and J Roberts of Accountancy Bookkeeping Tax Solutions.
Hearing details:
Brisbane
Video by Microsoft Teams.
2023.
6 July.
[1] [2020] FWCFB 4514.
[2] Ibid [30].
[3] [2020] FWCFB 4514, [48].
[4] Ibid [49].
[5] Re SB [2014] FWC 2104, [44] – [45].
[6] Ibid [81].
[7] Ibid.
[8] Amie Mac v Bank of Queensland Limited and Others [2015] FWC 774, [102].
[9] Mayson v Mylan Health P/L and Ors[2020] FWC 1404.
[10] Virginia Wills v Grant, Marley & The Government of New South Wales, Sydney Trains and Another[2020] FWCFB 4514.
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