Application by Lulu Lisa Liang-Godber
[2023] FWC 108
•17 JANUARY 2023
[2023] FWC 108
The attached document replaces the document previously issued with the above code on 17 January 2023.
Inserting the text, “Printed by authority of the Commonwealth Government Printer”, after the Commissioner’s stamp.
Associate to Commissioner Hunt
Dated 17 January 2023
| [2023] FWC 108 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Application by Lulu Lisa Liang-Godber
(SO2022/589)
| COMMISSIONER HUNT | BRISBANE, 17 JANUARY 2023 |
Application for an FWC order to stop bullying – urgent hearing listed – concerns raised regarding compliance with association rules – only Commonwealth Minister may suspend Chair of association – request for adjournment.
On 27 November 2022, Ms Lulu Lisa Liang-Godber (Ms Liang-Godber) filed an application pursuant to s.789FC of the Fair Work Act 2009 (the Act) to the Fair Work Commission (the Commission) for an order to stop bullying.
Ms Liang-Godber is the Chair of Regional Development Australia Brisbane Incorporated T/A RDAB (RDAB), having been appointed on 1 January 2021. It is a voluntary position.
RDAB is an incorporated association with rules (Rules) governing the association’s functions. The Rules declare that Regional Development Australia is a national network of committees made up of local leaders who work with all levels of government, business and community groups to support the economic development of their regions.
RDAB is the Brisbane chapter of Regional Development Australia. The Honourable Kristy McBain MP, Minister for Regional Development, Local Government and Territories is the Minister responsible for RDAB. The Rules declare that the Minister appoints the Chair to the committee. The Chair then appoints the Deputy Chair and other committee members[1] after consultation and agreement with the Minister (in the case of the Deputy Chair),[2] and in consultation with state and local government counterparts where they are a funding partner. The length of the Deputy Chair’s appointment is as directed by the Minister, and the length of the other members of the committee is determined by the Chair.[3]
Ms Robin Roberts is the Deputy Chair of RDAB, having been appointed on 7 April 2021. Ms Roberts is an Associate Professor at Griffith University.
Mr Shaun Conroy is the Executive Director of RDAB. Mr Conroy is not a member of the committee; he is an employee.
Ms Liang-Godber has made this application, seeking a stop bullying order against Ms Roberts and Mr Conroy.
Complaints against Ms Roberts
Ms Liang-Godber alleges that Ms Roberts has bullied her in the following ways (summarised):
· She has undermined her in order to be elected Chair;
· She has stated, “Lisa your English is not very good let me write it and you can just sign it”;
· She has demanded Ms Liang-Godber not talk to the relevant federal government department;
· She tells people she was elected by the Minister, but she was not; and
· She makes Ms Liang-Godber feel belittled and makes comments about her use of the English language (Ms Liang-Godber is originally from China).
Ms Liang-Godber noted that on 27 October 2022, Ms Sinead Wormald, Office Administrator made a complaint in respect of Ms Liang-Godber. Mr Conroy discussed the complaint with Ms Roberts and added his own complaint in respect of Ms Liang-Godber when forwarding the complaint to the committee members (excluding Ms Liang-Godber).
Ms Roberts then called an urgent committee meeting which was held on 28 October 2022. Ms Liang-Godber was excluded from the meeting. At the commencement of the meeting, one of the committee members sought to pass a motion of no-confidence in Ms Liang-Godber as Chair. This was passed unanimously. It was resolved that as an outcome of the no-confidence vote, the Chair is not to take any responsibilities or duties and is not to make any contact with committee members or staff. It was resolved that the vote of no-confidence would be referred to the Department of Infrastructure, Transport, Regional Development, Communications and the Arts (the Department).
The meeting minutes reflect that the second item of business involved the complaint received in respect of Ms Wormald. It was resolved that Ms Liang-Godber had 10 days to respond, and her response would be due 11 November 2022. It was resolved that the Chair should be directed not to make any contact with Ms Wormald or any other staff members or committee members, other than to reply to the complaint.
Following the meeting, Ms Roberts emailed Ms Liang-Godber to inform her of the committee’s actions, seeking her response by close of business, 11 November 2022.
The Rules providing the following at Rule 12:
“12. Disciplining of members
(1) A complaint may be made to the committee by any person that a member—
(a) has persistently refused or neglected to comply with a provision or provisions of these rules or the RDA Code of Conduct and Ethics; or
(b) has failed to attend three (3) consecutive committee meetings without leave from the committee; or
(c) has persistently and wilfully acted in a manner prejudicial to the interests of the association.
(2) On receiving such a complaint, the committee must—
(a) as soon as practicable, cause notice of the complaint to be served on the member concerned;
(b) Within two (2) working days, notify the Commonwealth Department;
(c) give the member at least 10 working days from the time the notice is served within which to make written submissions to the committee in connection with the complaint; and
(d) take into consideration any submissions made by the member in connection with the complaint.
(3) If, after considering the complaint and any submissions made in connection with the complaint, the committee is satisfied that the facts alleged in the complaint have been proved, and that the committee should make a request to the Commonwealth Minister in the case of the Chair that the member should be suspended or removed, or consult with the Commonwealth Minister in the case of a member other than the Chair about the suspension or removal of that member the committee must:
(a) notify the Commonwealth Department of the request to remove suspend or consult on suspension or removal and the reasons for the committee’s decision to make that request; and
(b) cause written notice to be given to the member of the committee’s request, of the reasons given by the committee for having made that request.
(4) If, after considering the complaint and any submissions made in connection with the complaint, the committee is either not satisfied that the facts alleged in the complaint have been proved, or is not satisfied that the committee should make a request to the Commonwealth Minister that the Chair should be suspended or removed, or is not satisfied that the committee should consult with the Minister about the suspension or removal of a member other than the Chair the committee must notify the Commonwealth Department of the reasons for the committee’s decision in writing.
(5) Upon receiving a request under rule 12(3),to suspend or remove a Chair the Commonwealth will either:
(a) accept the request and suspend or remove the member; or
(b) reject the request.
(6) Rule 12 is subject to rule 18. If, after receiving details of the complaint through the Commonwealth Department (following notice of the complaint under sub-rule 12(2)(b)), the Commonwealth Minister decides to suspend or remove the Chair under rule 18, the committee must immediately cease the process outlined in rule 12 (if applicable) upon receiving notice from the Commonwealth Minister of the suspension or removal. Nothing in rule 12 affects the ability of the Minister to suspend or remove a member under rule 18.
(7) A member has no right of appeal against the members’ suspension or removal from office under this rule.”
I note that that the email correspondence from Ms Roberts to Ms Liang-Godber does not appear to me to declare an allegation that Ms Liang-Godber had persistently refused or neglected to comply with a provision of the Rules or the RDA Code of Conduct and Ethics, or that she has persistently and wilfully acted in a manner prejudicial to the interests of the association. There is no assertion that she has failed to attend three consecutive meetings without leave of the committee.
Ms Liang-Godber responded to the correspondence asserting that there had been a smear campaign and she considered the correspondence to constitute bullying and racism. She requested a copy of the 28 October 2022 committee minutes and asserted that the meeting was not held in accordance with the Rules. Ms Liang-Godber concluded in correspondence dated 31 October 2022:
“I am still the Chair of RDA Brisbane Board and will continue to act in that Capacity.”
On 31 October 2022, Ms Liang-Godber sought to call an extraordinary general meeting for 3 November 2022. This meeting did not occur, however a meeting of three committee members attended a meeting with respect to a video project proposal. A quorum of committee members was not present, however a flying minute dated 3 November 2022 records other committee members having endorsed the relevant project and therefore the motion was carried. Ms Liang-Godber’s name was removed from the committee members eligible to vote on the motion.
On 22 November 2022, a further flying minute records that the committee (excluding Ms Liang-Godber) resolved to approve Mr Nathan Schokker, Treasurer, to open new bank accounts while the dispute with Ms Liang-Godber remained unresolved.
On 25 November 2022, the following correspondence was sent to Ms Liang-Godber:
“Dear Lisa
RE: Outcome of employee complaint and actions taken by the Board
As you are aware a complaint was made of workplace bullying by the Office Administrator against you. You were provided with 10 days, in accordance with the Rules to provide a written response. You provided a response which did not address the allegations of workplace bullying made by the Office Administrator. You were therefore provided with an additional opportunity to provide further written responses. You did not take the opportunity to provide any additional written responses with the reasonable timeframe provided.
On Friday 18 November 2022, the Board met to consider the complaint made against you. The Board unanimously found that the allegation against you was substantiated. The Board on 18 November 2022 also considered in light of the outcome of the employee complaint, the vote of no confidence and your conduct since you were advised of the employee complaint, that it was appropriate to seek the assistance of the Minister.
In accordance with the Rules, the Board have written to the Minister through the Departmental contact, asking that the Minister remove you from your position as Chair and remove you from the Board of the RDAB. The reason the Board has taken this step is because of the below four matters:
1. On 28 October 2022 the Board members present at a Board meeting unanimously voted in favour of a resolution, being a “vote of no confidence” in the Chair.
2. A complaint had been received from a staff member of workplace bullying which has now been substantiated against the Chair.
3. The conduct of the Chair has resulted in the RDAB being unable to meet its obligations to pay employees on time. The Chair, despite advising that she would not approve any payments, has subsequently approved payments with significant delay.
4. Deterioration of the relationship between the Chair and the majority of Board members.
As the matter is now before the Minister it is appropriate to direct that you remain stood aside from the Board of the RDAB until such time as the Minister makes a determination on the request from the RDAB Board.
You are also directed not to communicate with any staff member of the RDAB or Board members whilst this matter is being considered by the Minister.
Should you have any questions regarding the above directions, please contact the Ministers Office for the RDA Program as the matter is now with them.
Kind regards
Nathan Schokker
RDAB Treasurer (acting Secretary)”
Complaint against Mr Conroy
Ms Liang-Godber complains that Mr Conroy has bullied her in the following ways (summarised):
· He has made her role as Chair difficult since his contract was renewed in early July 2022;
· Since that time, he has been unhappy and spoke with Ms Roberts behind Ms Liang-Godber’s back, with him now reporting to Ms Roberts;
· He has only consulted with Ms Roberts to seek leave approval for staff;
· He continuously makes snide remarks;
· He refuses to respond to her emails or phone calls but is happy to respond to other committee members; and
· Ms Liang-Godber feels bullied and discriminated against by him.
Responses by Ms Roberts and Mr Conroy
Ms Roberts denies the allegations made by Ms Liang-Godber. Ms Roberts contends that any assistance she has provided Ms Liang-Godber with writing has been respectfully given and well-received by Ms Liang-Godber until 28 October 2022.
Mr Conroy denies the allegations made by Ms Liang-Godber. His position is that he liaises with various members of the committee as the need arises. He contends that the Executive Director does not require the Chair’s approval to undertake tasks and functions approved by the committee and included in the strategic business plan. Mr Conroy contends that on one occasion, Ms Liang-Godber sought to improperly prohibit him from liaising with contacts from the Department.
Telephone conference
On 3 January 2023, the application was allocated me. I convened a telephone conference on 12 January 2023. Ms Liang-Godber was represented by Ms Gemma Adams, Principal Lawyer, GLR Law. Ms Roberts and Mr Conroy were represented by Ms Cheryl-Anne Laird, Partner, Mazars.
As I had not yet been provided with a copy of the Rules, during the conference a copy was emailed to my chambers. Upon reading the Rules, I provided a preliminary view that it was unclear if the committee had properly exercised its powers within the Rules. I informed the parties that such a determination might be a matter for the Minister, or a Court of competent jurisdiction. I indicated the following concerns in relation to whether the Rules have been satisfied.
The communication provided by the committee to Ms Liang-Godber indicates that the referral to the Minister was because the committee had made a finding that the complaint made by Ms Wormald was substantiated and that a vote of no-confidence was passed. I expressed my preliminary view that the Rules might require a complaint and communication of a complaint to allege to Ms Liang-Godber of a specific breach of 12(1) of the Rules, namely 12(1)(a) or 12(1)(c), noting that 12(1)(b) did not seem relevant.
Further, the Rules provide at Rule 18:
“18. Removal or suspension of member
(1) The Commonwealth Minister may remove or suspend any member from the association (and therefore the committee) before the expiration of the member's term of appointment by providing written notice to the committee and the member being removed or suspended.
(2) The Chair may remove or suspend any member from the association (and therefore the committee) before the expiration of the member's term of appointment only after consulting with the Commonwealth Minister and then by providing written notice to the committee and the member being removed or suspended.
(3) The removal or suspension of the member from the association is effective from the date the notice is taken to be received under rule 40.
(4) A member has no right of appeal against the member’s suspension or removal from office under this rule.”
I provided to the parties a preliminary view that only the Minister has the power, pursuant to the Rules to remove or suspend the Chair.
In correspondence received during the conference, it became clear that Ms Roberts wrote to the Department on 1 November 2022, providing a detailed timeline of events. Ms Roberts concluded the email:
“The RDAB requires your assistance and in particular we seek confirmation that in all of the circumstances, the Chair, Lisa Liang should cease and desist in the role of Chair whilst your office considers the no confidence vote and the reasons for it. In the absence of such action, we do not see how the Board can continue to function effectively given there is a majority view that they do not have confidence in the Chair and the Chair does not appear to have acknowledged this.
We re affirm – the response to the staff complaint by the Chair is required by Friday 11 November and the next scheduled Board Meeting is Tuesday 28 November 2022.
I am not privy to any response from the federal government department, nor have I viewed the correspondence of the committee to the Minister or to the Department following the committee’s meeting on 18 November 2022.
Ms Liang-Godber contends that she is prohibited from attending or participating in any committee functions, including meetings, by virtue of the communication sent to her by the committee. She contends that such prohibition is not permitted.
Urgent hearing listed
Having heard from the parties and suggesting to Ms Liang-Godber she may wish to seek relief in a Court of competent jurisdiction, I determined it appropriate to list the application for an urgent hearing on account of the decision by the committee, including Ms Roberts, to prohibit Ms Liang-Godber from fulfilling any of her duties as Chair. I listed the matter for an in-person hearing on 19 January 2023, requiring the parties to file their material by no later than 10:00am on 18 January 2023.
On 13 January 2023, Ms Roberts and Mr Conroy sought an adjournment of the hearing on account of unavailability of witnesses. Ms Roberts stated the following:
“1. I am an Associate Professor at Griffith University.
2. As part of my employment at Griffith University, I am currently completing a major research report which is due in the week ending 20 January 2023.
3. Meeting the due date requires the dedication of considerable time to the research project, including time spent on weekends and beyond ordinary working hours.
4. It is extremely important that the research project is completed by 20 January 2023. Failure to deliver the project by that date may considerably impact my ability to obtain future research funding.
5. As I am obliged to secure funding as a condition of my employment, a diminished ability to obtain research funding may impact my position as Associate Professor.
6. The failure to deliver the project by 20 January 2023 also risks reputational damage to myself and my employer.”
Mr Conroy noted that he is available on 19 January 2023, however he is not a member of the committee and not privy to all discussions of the committee.
Dr Nagaraj Gopisetty is a committee member and would be required to give evidence. He is presently on annual leave in the United Kingdom and will not return to Australia until after 21 January 2023.
Mr Peter Kinne is a committee member and is known to be having eye surgery on 20 January 2023. He has informed Mazars, presumably, that he is not able to provide a witness statement by 18 January 2023, nor attend a hearing before the Commission on 19 January 2023. Ms Margo Couldrey, committee member, signed a statement to say that she contacted Mr Kinne by telephone on 13 January 2023. He informed her that he was presently seriously ill and admitted to hospital.
In the application requesting an adjournment of the hearing listed for 19 January 2023, it was put that the next committee meeting is not scheduled until 28 February 2023. It was suggested that a hearing date no earlier than 30 January 2023 would not prejudice Ms Liang-Godber. It was put that a commitment could be made that any decision requiring the committee’s approval prior to 28 February 2023 could be made by flying minute, with Ms Liang-Godber permitted to participate in the same manner as any other committee member. I take it that Ms Liang-Godber would be entitled to vote upon any resolutions put to committee members and recorded in a flying minute.
On 15 January 2023, Ms Liang-Godber communicated that she opposed the adjournment sought on the following bases:
· Meetings have been held excluding her and there is no guarantee that meetings won’t be held in her absence;
· The committee is likely seeking an adjournment in the hope that the Minister makes a prompt decision thus ending this application;
· She is still the Chair and is responsible and liable for decisions of the committee;
· The unavailability of witnesses is more to do with witness convenience and if witnesses had to attend by video or telephone that would not be an impediment to the efficient hearing listed for 19 January 2023; and
· Ms Liang-Godber is suffering health issues due to what she says is bullying and any delay will significantly impact her health.
On 16 January 2023, Ms Laird pressed the adjournment request on behalf of Ms Roberts and Mr Conroy. The fact that Ms Roberts, Dr Gopisetty and Mr Kinne have full-time jobs and owe a duty to their employers was pressed, noting that each of them acts in a voluntary capacity as committee members, and in the case of Ms Roberts, as Deputy Chair. It was stated that upon his return from overseas, Dr Gopisetty can commence preparation of a witness statement, and upon Mr Kinne being well, he too can prepare his material.
In respect of Ms Liang-Godber’s stated ill-health, it was submitted that a commitment not to hold committee meetings until 28 February 2023 will ensure that she is not required to interact in person, including by video with any of the other committee members, other than by participating in a flying minute.
At 5:46pm on 16 January 2023, Ms Liang-Godber pressed for the hearing on 19 January 2023 for the following reasons:
· RDAB has a prescheduled upcoming Capital City RDA Expo in February 2023 requiring the Chair to be involved. There will be extensive communication with Ministers at Federal, State and Brisbane City levels and she will be representing RDAB at the event; and
· The Chair has a number of scheduled high-level Government engagements representing RDAB, including an invitation from the Lord Mayor of Brisbane to attend a Brisbane City Council Function on 23 January 2023.
It was submitted that delaying the urgent hearing will allow Ms Roberts and Mr Conroy to exclude Ms Liang-Godber from all business discussions which will impact RDAB funding agreements with the Commonwealth.
At 6:22pm on 16 January 2023, Ms Laird sent correspondence that the Expo referred to by Ms Liang-Godber will occur on 23-24 February 2023.
Consideration
I decided to urgently list the application because of the concerns I held that Ms Liang-Godber was prohibited from participating in meetings of the committee, by a decision of the committee. I informed the parties of my preliminary view that this may be, in accordance with the Rules, usurping the role of the Minister as only the Minister has the authority to suspend the Chair.
It is clear that the committee has met numerous times and made decisions in the absence of Ms Liang-Godber. The Commission has been informed that a commitment can be given that the committee will not meet as a committee until 28 February 2023, unless by way of a flying minute, for which Ms Liang-Godber is entitled to participate.
While I am not entirely satisfied with the position given that Ms Liang-Godber is Chair and according to the Rules would preside as chairperson at every meeting,[4] having regard to Rule 21(2), which permits any member of the committee to call additional meetings of the committee, it appears to me that meetings by way of a flying minute can be properly attended to by the committee, including with the participation of Ms Liang-Godber, prior to 28 February 2023.
With respect to official engagements Ms Liang-Godber wishes to attend and participate in within the coming weeks, there is certainly some prejudice to her in delaying the hearing if she is directed by the committee by virtue of its decisions not to attend and participate in the events. My preliminary view is that these are matters that should be decided by the Minister, not the other members of the committee.
The most pressing engagement is on 23 January 2023. The other significant engagement is in late February 2023.
Having weighed up all of the submissions, noting the prejudice to Ms Liang-Godber with respect to the 23 January 2023 engagement, and noting that numerous witnesses are unavailable for various legitimate reasons, I am satisfied that the Commission could not properly inform itself of the matters between the parties if a hearing continued to be listed on 19 January 2023.
On the basis that I do not consider there to be sufficient prejudice to Ms Liang-Godber of a short delay in the hearing of this matter, other than in respect of the 23 January 2023 engagement, I will vacate the hearing of 19 January 2023 and list the matter on a later date, to be determined, but certainly within the month of February 2023.
If the committee does intend to meet by any means prior to 28 February 2023 other than by way of a flying minute, and excluding Ms Liang-Godber, Ms Roberts is directed by me to inform my chambers of such decision within 12 hours of the decision being made.
Conclusion
The hearing of 19 January 2023 is vacated with a listing date to be determined. Directions will be issued after consulting with the parties as to their availability.
COMMISSIONER
[1] RDAB Rules, Rule 3(1).
[2] RDAB Rules, Rule 5(4).
[3] Ibid.
[4] RDAB Rules, Rule 23(1).
Printed by authority of the Commonwealth Government Printer
<PR749677>
2
0
0