Application by Maheep Singh Basra

[2024] FWC 3359

[2024] FWC 3359

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Application by Maheep Singh Basra

(AB2024/306)

COMMISSIONER HUNT BRISBANE, 3 DECEMBER 2024

Application for an FWC order to stop bullying

1. On 29 April 2024, Mr Maheep Basra made an application to the Fair Work Commission (the Commission) pursuant to s.789FC of the Fair Work Act 2009 (the Act) for an order to stop bullying. Mr Basra is employed by Shepcon Qld Pty Ltd T/A Kraftur (Kraftur) and sought for the Commission to make an order to stop bullying against three named persons employed by Kraftur. The Persons Named are:

·   Mr Adrian Prevost, Managing Director;

·   Mr John Nolan, Site Leader; and

·   Mr Bradley Ewin, Site Leader.

1. The matter was allocated to me on 22 May 2024, and I listed the matter for a telephone conference on 30 May 2024. A further telephone conference was held on 20 June 2024, and following that conference, I issued directions for the filing of evidence and submissions. The matter was heard in person in Brisbane on 26 July and 15 August 2024. Mr Basra represented himself at the hearing. Kraftur and the Persons Named were granted permission to be represented by Mr Colin Dorber of Workplace Connect Pty Ltd.

1. The following people gave evidence and were cross-examined:

• Mr Basra

• Mr Adam Ciobo, Concrete Finisher

• Mr Steven Dimitriesvski, Carpenter

• Mr Aden McGuane, Carpenter

• Mr Nolan

• Mr Prevost

• Mr Ewin

1. Kraftur is a concreting contracting company founded in 2015 by Mr Prevost. Mr Basra commenced employment with Kraftur in August 2022 as a Labourer.

1. Mr Basra seeks a remedy in response to alleged workplace bullying pursuant to Part 6-4B of the Act. It is not in dispute that Mr Basra is an eligible worker to bring a claim under this jurisdiction. Mr Basra has not been at work since 29 April 2024.

RELEVANT LEGISLATION

1. A worker who reasonably believes that he or she has been bullied at work may apply to the Commission for an order to stop bullying. Section 789FC of the Act provides:

“789FC Application for an FWC order to stop bullying

(1)        A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.

(2)        For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force.

Note:    Broadly, for the purposes of the Work Health and Safety Act 2011, a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.

(3)        The application must be accompanied by any fee prescribed by the regulations.

(4)        The regulations may prescribe:

(a)        a fee for making an application to the FWC under this section; and

(b)        a method for indexing the fee; and

(c)        the circumstances in which all or part of the fee may be waived or refunded.”

1. Section 789FD of the Act sets out when a worker has been bullied at work, as follows:

“789FD When is a worker bullied at work?

(1)        A worker is bullied at work if:

(a)        while the worker is at work in a constitutionally-covered business:

(i)an individual; or

(ii)a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b)        that behaviour creates a risk to health and safety.

(2)        To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.

(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.”

1. The circumstances in which the Commission may make orders to stop bullying are set out in s.789FF of the Act, as produced below:

“789FF  FWC may make orders to stop bullying

(1)        If:

(a) a worker has made an application under section 789FC; and

(b)        the FWC is satisfied that:

(i)the worker has been bullied at work by an individual or a group of individuals; and

(ii)there is a risk that the worker will continue to be bullied at work by the individual or group;

then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.

(2)        In considering the terms of an order, the FWC must take into account:

(a)        if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body—those outcomes; and

(b)        if the FWC is aware of any procedure available to the worker to resolve grievances or disputes—that procedure; and

(c)        if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes—those outcomes; and

(d)        any matters that the FWC considers relevant.”

Evidence of Mr Basra

1. In his Form F72 Application, Mr Basra complained of a number of incidents involving the Persons Named alleged to have occurred between December 2022 and April 2024.

December 2022 incident

1. Mr Basra stated that in December 2022, Mr Ewin verbally bullied him in front of colleagues. On a day in December 2022, Mr Basra left work to collect his child from childcare. Mr Ewin was not present at the time Mr Basra left work, so Mr Basra notified other colleagues of his departure.

1. The following morning, during a team meeting, Mr Basra stated that Mr Ewin called him out in front of colleagues, saying that Mr Basra would be required to locate Mr Ewin every day before he leaves for work, because he is a “slippery cunt”. Mr Basra stated that following this incident, Mr Ewin introduced him to two other Site Supervisors as a “slippery cunt”.

1. Mr Basra said that he did not complain about this incident as he had only commenced employment approximately three months earlier, and as other employees had also started calling him “slippery”, he did not want to make the situation worse.

1. Following this incident, Mr Basra stated that he did not work with Mr Ewin again until 2024.  In oral evidence given during the Hearing, Mr Basra stated that Mr Ewin had never referred to him in that way again.

August 2023 incidents

1. Mr Basra stated that in August 2023 a colleague, Mr Reed Townsend had refused to work with Mr Nolan due to mistreatment. Mr Basra was then sent to work with Mr Nolan, and within a few days considered that he was being bullied by Mr Nolan as he was directed to perform additional tasks outside of his responsibility. Mr Basra was preoccupied with his own work and was unable to perform any additional tasks. He stated that Mr Nolan threatened to remove him from the site and said that he had been “taking the piss for too long”.

1. When pressure washing a laser screed machine, Mr Nolan approached him and told him that he should be done with the machine within an hour after a concrete pour is finished, saying that he got paid by the hour so should be working as quickly as possible and assisting other employees. Mr Basra also stated that Mr Nolan mentioned that others had referred to Mr Basra as a “lazy labourer”. Mr Basra highlighted that Mr Nolan repeated the word “labourer” because he had recently been promoted from a Labourer to a Laser Screed Operator.

1. Mr Basra approached other employees to ask if they considered him lazy and had complained about him to Mr Nolan. Mr Jeremy Croton replied that one day he and other employees had observed Mr Basra from a distance and could see that his shoulders were curled in and that he was walking very slowly. Mr Croton suggested to Mr Basra that he walk more briskly and show urgency. Mr Croton told Mr Basra he was not suited for the job because he is a “sensitive soul”.

1. Mr Basra stated that Mr Nolan provided a false account of the time it took Mr Basra to pressure wash the laser screed machine, claiming that the concrete pour had been completed earlier than it actually had.

1. Following this incident, on his way back home, Mr Basra called Mr Dave Lowry, Construction Manager to report Mr Nolan’s behaviour, saying that he no longer wanted to work with Mr Nolan. Mr Basra received a call from Mr Richard Booth, Operations Manager, informing him he would visit the site the following day. After Mr Booth visited Mr Basra, Mr Basra considers that Mr Nolan had convinced other employees that Mr Booth was visiting site to reprimand Mr Basra.  Another employee approached Mr Basra and asked whether he had been warned about taking too long to wash up.

1. Mr Booth informed Mr Basra that as there was no other Laser Screed Operator available, he would need to complete the project with Mr Nolan. Mr Booth advised Mr Basra and Mr Nolan not to engage with each other, however Mr Basra stated that rumours persisted despite this.

1. Mr Basra described another incident where while driving a forklift on uneven ground, a pallet fell and was run over by the forklift. Mr Nolan teased him about this and sent memes to colleagues about his poor driving skills. Mr Croton proposed that Mr Basra buy beers for the team because of the broken pallet, which Mr Basra did, however he stated this was done in order for him to be made fun of, rather than a light-hearted joke.

February 2024 incidents

1. Until February 2024, Mr Basra had been operating 2D laser screeds. In February 2024, Mr Basra was requested by Mr Lowry to begin 3D operations training. Mr Lowry suggested that Mr Ewin, the Allocation Manager at the time, allocate Mr Basra to Mr Nolan’s work site. Mr Basra’s evidence is that 3D operations commence setup at 1:00am, but Mr Ewin did not allocate him to begin until 1:45am, by which time the 3D operations were already set up, thereby preventing Mr Basra from completing his training. Mr Basra stated that Mr Ewin then allocated him to labouring duties for the rest of his shifts on 23 and 26 February 2024. Mr Basra noted that Kraftur’s policies and procedures provide that 3D setup takes 45 to 60 minutes.

1. On the morning of 26 February 2024, Mr Basra called Mr Ewin, telling him that due to a family emergency he would not be able to work the following day. Mr Ewin ended this call in a rush and told him that it would be sorted out later. Mr Basra sent a follow-up text message at 11:00am, and Mr Ewin replied that he would have a look at the situation soon. Mr Basra later received a text message from Mr Ewin stating that he would be working the following day at 4:15am. Mr Basra attempted to call Mr Ewin, but the call went unanswered.  The following text messages were exchanged from 2:05pm on 26 February 2024:

Mr Basra:Hi Brad, I got 4:15am start on my deputy.  I will have to finish at 10:30 if you still want me to make this shift.

Mr Ewin:        [thumbs up emoji]

Mr Basra:       Let Johnny [Mr Nolan] know also please
  Thanks mate

Mr Ewin:        Done mate I wanted you in the laser screed tomorrow start learning 3d

Mr Basra:       Appreciate it mate.  I am pretty keen for it myself [thumbs up emoji]

1. Mr Basra was rostered to commence work at 4:15am on 27 February 2024, while his trainer for the morning was rostered to commence at 4:00am. Operations were scheduled to commence at 4:30am. Given Mr Basra’s evidence that setup takes approximately 45 minutes, he stated that he commenced work at 3:45am and told Mr Ewin, Mr Booth and Mr Prevost that he needed to start at least 45 minutes prior to the commencement of operations, in accordance with Kraftur’s procedures. Mr Basra stated that he was compensated for his early start, and that following this incident every operator was rostered to start at 3:30am.

1. At approximately 9:30am on 27 February 2024, after completing the morning’s work, Mr Basra received a text message from Mr Nolan instructing him to begin working on another task. Mr Basra replied, saying that he was to finish work at 10:30am. Mr Nolan replied that he had not been told of this, and said that Mr Basra was to finish at 12:15pm. Mr Basra then sent a screenshot of his conversation with Mr Ewin where the 10:30am finish had been discussed.  Mr Nolan than logged Mr Basra off at 10:15am, when Mr Basra was still at the jobsite until 10:35am.

1. In material filed in the Commission in support of his application, Mr Basra stated that he was dealing with a family emergency on 27 February 2024, hence why he had to leave work early at approximately 10:30am.  He repeated this statement of “family emergency” on no less than eight occasions in one set of material to the Commission.  In evidence given during the Hearing, Mr Basra explained that his wife flew interstate on the morning of 27 February 2024 to look after a family member.  Accordingly, Mr Basra had care of his 4-year-old child.

1. Mr Basra organised for his neighbours to care for his child overnight on 26 February 2024 so that he could start work early on 27 February 2024 and return to collect his child late-morning on 27 February 2024.  His neighbour could only care for his child until late-morning.

1. His child normally attends childcare on Mondays, Wednesdays and Fridays.  27 February 2024 is a Tuesday.  Mr Basra confirmed that he did not make any inquiries of the childcare centre his child attends to see if his child could be cared for on Tuesday, 27 February 2024.

1. I suggest to Mr Basra that his description of the matter as a “family emergency” was a significant over-dramatisation of the circumstances and he was simply in need of childcare for his pre-school aged child, circumstances experienced by many parents.

1. In the Hearing, Mr Basra also revealed that he had been paid carer’s leave for the period 10:30am until his usual finishing time, despite his child being well.  That is, Kraftur, through Mr Ewin, agreed to pay Mr Basra to look after his well, young child, because he had to look after his child, despite not exhausting inquiries about if his child could be cared for by the child’s usual carers (assuming Mr Basra’s neighbours could drop the child to childcare).   Mr Basra was particularly upset that Mr Nolan had stated that he finished at 10:15am and not 10:30am.  This is despite being paid carer’s leave from 10:15am.  It was later rectified such that he was paid wages up until 10:30am and then carer’s leave from 10:30am.

1. During the Hearing, Mr Basra described 27 February 2024 as a “living hell”.

1. Mr Basra called Mr Booth and informed him of the morning’s events. Mr Booth then amended his finishing time, and told him that they would discuss the incident the following day. Mr Basra stated that he did not hear any further from Mr Ewin until later in the day, when Mr Ewin allocated him to commence work at 6:00am the next day.

1. At 3:38pm on 27 February 2024, Mr Basra sent Mr Ewin the following text message:

“Hey Brad, I rang you to have a chat about my 6am start tomorrow morning mate.  My wife is away this week and I am the only person looking after my 4 year old.  Finishing at 2:30 is too late for me this week. 

Could you please give me an early start 4am or early?  It’s only for this week”

1. Mr Ewin replied as follows:

“Hey mate do what hours you can tomorrow, the list was published at 12:45 you can’t expect me to change the list at 3:35 in the afternoon mate for your convenience, if you need to leave early any day moving forward let me know the day before or in the morning as the list gets worked on during the morning, let red know in the morning”

1. Mr Basra considered that Mr Ewin was “fixated” on ensuring that he did not start early and attract early start penalty rates.

1. He also stated that Mr Nolan ensured that he only completed labouring duties and did not participate in any 3D Operations. Mr Basra stated that Mr Nolan’s second-in-charge, Mr Zac Shaw, admitted that Mr Nolan designated tasks for everyone, including some tasks for Mr Basra that he was not qualified to do. Mr Basra reported this to Mr Booth, who visited him on site. Mr Basra told Mr Booth that he was being harassed at work, and on a scale from 0-10, had been feeling a ‘0’ due to the recent events. Mr Booth assured Mr Basra that things would improve.

1. The following was exchanged on the Kraftur’s Deputy software on the afternoon of 27 February 2024, read by the team:

Mr Nolan:Big shout out to all the boys at DP world today, big day with a combi, driveway and crossover, total of 2114m2, 535m3 and thanks to the boys who stayed back and helped get everything ready for tomorrow, your hard work does not go unnoticed and is much appreciated.

Mr Basra: Only showed up because didn’t wanna let the team down, otherwise had a lot going on at home front.  That’s what we do for each other in a team. Great work boys [strong arm emoji]

Mr Nolan:Communication is key Baz, would have been nice to have been given a heads up

Mr Basra:That should be a pointer for Brad.  Communication is the key Brad [smile face emoji]

Ben and myself had a hectic morning getting yelled at for start screeding on the laser screed while we were putting height tapes on the star pickets.  Didn’t get time all morning to come and see you John.  Specially when Brad had confirmed with me that he had notified you.

Another key would be, getting enough time to set out and plot 3D pours.  Both me and Ben started half an hour before our start time to make sure everything was ready for pour, yet I am negotiating for 15 mins at the end of the day.

Mr Croton:[Michael Jackson eating popcorn – “Don’t mind me just here to read the comments” meme]

1. On 28 February 2024, Mr Ewin came to site and spoke to Mr Basra after Mr Basra declared that Mr Ewin had poor communication on the Deputy software the day before.  Mr Ewin told him he should not have made a comment on Deputy. Mr Basra then asked Mr Ewin to give him 45-60 minutes’ set up time in accordance with Kraftur’s policies. However, the following day, he received only 30 minutes’ set up time, starting at 4:00am while other operators started at 3:30am.

1. Mr Basra confronted Mr Ewin about his start times, who told him that he had been considerate towards his family circumstances and had given him the start times he requested, and that it was Mr Nolan who was deliberately changing the start times. He asked Mr Prevost to arrange a meeting between Mr Basra and Ms Melissa Hibbs, Kraftur’s Office Manager.  When asked by Mr Prevost why he wanted to speak with Ms Hibbs, Mr Basra stated that he was being discriminated against and harassed. Mr Prevost arranged a meeting between himself, Mr Basra, Mr Booth and Ms Hibbs for 4 March 2024.  Ms Hibbs was not present.  Mr Basra said that he addressed all of his issues in the meeting, and Mr Prevost expressed sympathy for Mr Basra, stating that they would try to make the workplace enjoyable for him.

1. It would seem that Mr Basra worked 4 March 2024 to 4 April 2024 without any issue or complaint in respect of any of the Persons Named.

April 2024 meeting

1. On 4 April 2024, Mr Booth sent the following email to Mr Basra, copying in Mr Prevost and Mr Lowry:  

“Hi Baz,

I hope this email finds you well.  I wanted to extend my gratitude for meeting with me on Tuesday to discuss the issues you brought to our attention on Monday, March 4^th.

During our conversation, I mentioned that I had another meeting with John Nolan on Tuesday morning. Here are the key points we discussed:

·John expressed that he holds no animosity towards you and wants to ensure you feel comfortable communicating with him directly.

·He mentioned that there have been reports from other workers indicating that you have been discussing these issues outside of our conversation.  It’s important to understand that gossip can impede our progress in resolving these matters effectively.

·We have standardized appropriate start times for Somero setup and distributed them to site leaders to facilitate better scheduling.  Additionally I have spoken with Dave about ensuring we providing you with the necessary training on 3D setup to bolster your confidence in this area.

Moving forward, I would appreciate your assistance in addressing any rumours or hearsay surrounding this issue.  If approached, simply acknowledging that the matter is being actively addressed in consultation with me should suffice.

Once again, thank you for your time and cooperation in working towards a resolution.  If you have any further concerns or require additional information, please don’t hesitate to reach out.”

1. On 6 April 2024, Mr Basra responded to Mr Booth as follows:

“Hi Richard,

Thanks for your email.  It’s always great to hear from you as well as see you on site. 

While I value John’s recent remarks, I feel there are still some important aspects of the situation that may need further clarification.  Throughout my various professional experiences, I’ve always found it comfortable to communicate with John.  However, an incident at Frasers Woolworths, where I was subjected to demeaning comments from John, understandably affected our communication dynamic.  I promptly reported the incident to upper management, seeking guidance on how to proceed.  Despite this, I’ve continued to encounter challenges, particularly regarding conflicting instructions from managers.  At Frasers, I was advised not to engage with John following the incident, a stance supported by upper management. However, subsequent feedback from Brad suggested a different approach, leading to confusion and uncertainty.

During our meeting on March 4^th, Adrian expressed disbelief that Brad was unaware of the incident at Yatala, raising concerns about the decision-making process regarding my allocations.  Despite these discussions, I was back to work with John without prior consultation or consideration of my comfort level.  In summary, I believe there hasn’t been a satisfactory resolution to this matter.

It was nice to have a quick chat with you on Tuesday.  It was nearly end of the shift, I was still in the middle of doing Dogman duties moving mesh on site and we had a brief conversation near the office sheds addressing John’s feedback on the situation and how I feel about it.  I am more than happy to have another meeting with yourself and preferably Melissa also as I am really curious to get feedback from HR Department on the whole situation.

Thank you for your attention to this matter. I look forward to your response and the opportunity to find a resolution that ensures a comfortable and productive work environment for all parties involved.”  

1. Mr Booth did not reply to this email, but instead called Mr Basra on 11 April 2024 to arrange a 30-minute on-site meeting the following day on 12 April 2024 at 11:30am.  Mr Basra had intended, along with other employees, to attend a Celebration of Life service for a former Kraftur employee at 2:00pm on 12 April 2024 in Broadbeach.  It had been determined that all shifts would conclude at 11:00am that day to allow all employees time to prepare for the service. Mr Basra considered that organising a meeting with him at 11:30am was inappropriate and did not give him adequate time to shower and change and travel for the service.  Mr Booth then adjusted the time to 10:30am.  Mr Basra requested that the meeting be postponed to the following Monday. Mr Booth replied that the issues needed to be resolved before the next week. Mr Basra stated that he then reluctantly agreed to the meeting at 10:30 am on 12 April 2024.

1. On the morning of the meeting, feeling overwhelmed, Mr Basra told Mr Booth that it was inappropriate for the meeting to be held just prior to the funeral, and firmly requested that the meeting be postponed to Monday. He again requested that Ms Hibbs be present in the meeting, but Mr Booth told him that Ms Hibbs was no longer employed by Kraftur.

1. The meeting took place on 15 April 2024 at 12:00pm. Mr Prevost and Mr Booth were in attendance, and Mr Basra was accompanied by a support person, Mr Mick Rawlinson. Mr Basra’s evidence is that Mr Prevost asked in a loud and aggressive manner why Mr Basra wanted someone from HR present and who had told him that Ms Hibbs worked in HR. Mr Basra stated he became nervous and said that he had read somewhere that Ms Hibbs worked in HR, and that he was being harassed at work and needed help which he had not been getting. Mr Prevost denied that Ms Hibbs had ever worked in HR and said that he, Mr Booth and Mr Lowry had HR training, and that Mr Basra could speak to any of them.  In evidence given during the Hearing, Mr Basra stated that Mr Prevost was speaking so loudly he had spittle.

1. Mr Prevost said during the meeting that Mr Basra had been harassed in connection with his family circumstances, but blamed the issues on poor communication between managers. Mr Basra asked Mr Prevost what Kraftur’s policies on harassment are. Mr Prevost asked Mr Basra if he had read the policies posted on the wall outside. Mr Basra said that he had, but that the majority of these policies related to sexual harassment. Mr Basra further stated that he had been experiencing extreme stress and no longer felt safe at work. Mr Prevost told him that supervisors would receive training so that employees are treated appropriately.

1. Mr Basra also raised during the meeting the issue of early shift starts being distributed evenly on Mr Nolan’s site. Mr Basra stated that there had been a meeting in which it was decided that everyone would get an even share of early starts. Within two days on the site, Mr Basra said that Mr Nolan was personally changing Mr Basra’s start times so that he would not receive the early shift penalty rates. Mr Basra stated that Mr Prevost asked Mr Booth about this. Mr Booth said that he was unaware of this situation, and Mr Basra’s query was then dismissed.

1. Mr Basra located a post on Deputy from Ms Hibbs announcing herself as the HR and Payroll Officer on 13 November 2023. Mr Basra took a screenshot of this post and sent it to Mr Prevost, who replied saying that it was a miscommunication. Mr Prevost later sent an email to Mr Basra, stating that he had a conversation with Mr Nolan and Mr Ewin, and they would be receiving training. However, Mr Basra said that despite the complaints he had made against them, they both received promotions, while his complaints remained unresolved.

1. Mr Prevost sent the following email to Mr Basra on 16 April 2024, copying in Mr Booth and blind copying Mr Lowry:

“Baz

Thank you for taking time to talk to Richard and myself.  We have heard your concerns and summarises below action taken and further action being taken by Kaftur:

·     Dave Lowry has taken over labour allocation, and we are happy to understand you hold Dave in high regard.

·     A frank conversation has been had with both John and Brad

·     Dave will ensure you are not allocation to a John N site until Kraftur can re-earn your confidence in working with John.

·     Should the labour list be done by someone other than Dave and communication error has you being allocation to Johns site – Please ensure you call Dave in the first instance alerting him to this.  Should Dave be unavailable – please speak to me.

·     Several site supervisors including John and Brad have been booked into dedicated management training courses to assist in improving their management of people.

·     Kraftur has recently set up a process whereby all employees have regular 90-day Q-convo check-ins with a nominated senior site leader.

·     Karl Hibbs has elected to be your senior site leader and will be in touch booking a Q-Convo with you.

·     Karl is being offered assistance and training around leadership and people management to assist him with his mentorship role.

·     Ultimately Dave Lowry remains your Manager (Boss) however Karl will be an important first point of call to work with you on your career with Kraftur.

·     There is a new project at the Port of Brisbane (BWS) that involves large external PT pours like Medlog.

·     Matt Rawlinson will be the Kraftur site supervisor, and an opportunity exists for you to be trained on using the S15R laser screed on tracks and enjoy soe of the night shift penalty rates. Please speak to both Dave and Matt about this.

·     Kraftur is initiating another full companywide survey and listening session using the same consultant employed in 2022.

·     The findings of this survey will be openly communicated with all site leaders in a workshop environment lead by an experienced consultant with the aim of improving the management of behaviour across our business and addressing some of the workplace cultural issues you raised.

·     We are happy you accept that at Kraftur, laser screed operators still get involved and help with general site labouring duties as required by various site supervisors.

I will check in with you in 6 weeks’ time and trust you will find these changes, initiatives, and opportunities for you acceptable.”

1. Mr Prevost forwarded the email above to Mr Lowry on the same day and added the following message:

“Dave

As below, please ensure Baz is not allocated to John N site until Kraftur can re-earn confidence from Baz that he does not feel unsafe.

Please work with Matt R if Baz is the right person for Laser Screed Track Training.

If so please arrange for appropriate time with Matt and Baz to get Baz proficient on tracks outside of concrete.
If Matt R does not have the time and does not feel confident to train Baz, Kraftur is happy to invest in an external trainer if required.  Please let me know.”

Late April 2024

1. From approximately mid-April 2024, Mr Basra started working at a new job site. On 18 April 2024, the Site Supervisor, Mr James Abercombie, approached Mr Basra and asked in an aggressive manner why Mr Basra he was standing around and doing nothing. At this time, Mr Basra stated he was assisting in repairing a broken pressure cleaner, and while it did not appear that he was physically doing anything, he was fault finding and problem solving.

1. At 12:00pm on 22 April 2024, Mr Basra completed work for the day. Mr Abercrombie asked him to complete an additional task. Mr Basra said this was done without him being asked whether he wanted or was able to complete the task, however he agreed to assist. Just before starting the task, Mr Basra encountered another colleague, and they had a brief chat. Mr Abercrombie saw this and confronted Mr Basra, asking him why he was still there instead of completing the task he had been assigned. Mr Basra told Mr Abercrombie that he has to allow him some time in between tasks to have a break, especially given that morning Mr Basra stated he had worked for eight hours without a break. Mr Abercrombie then asked Mr Basra to collect his belongings and go home. Mr Basra stated that he never got paid for the 30-minute break he did not receive that day, despite raising it with Mr Lowry.

1. At 10:00am on 29 April 2024, Mr Basra notified Mr Abercrombie that he needed a break from work to visit a doctor as his mental health had been suffering. Mr Abercrombie suggested that Mr Basra finish all of his tasks first and then take a break. At 11:30am, Mr Basra completed his tasks and told Mr Abercrombie that he was going to go on a break. Mr Abercrombie suggested that Mr Basra should finish his shift before visiting a doctor. Mr Basra then called Mr Lowry, expressing that he urgently needed to visit a doctor that day. Mr Lowry suggested that as Mr Basra was not suffering an injury, he could visit his family doctor. 15 minutes later, Mr Lowry sent Mr Basra a text message saying that he was happy to arrange a doctor appointment for Mr Basra after the following day’s concrete pour. Mr Basra then saw a GP on his own initiative. He stated that if it were not for his own efforts, he would have been back to work operating heavy machinery while unfit to do so.

1. In evidence given during the Hearing, Mr Basra stated he had eight weeks’ experience in a particular task but considered that he had “mastered” the task because he had performed that task twice by himself.  He considered Mr Ewin was engaging in bullying of him because Mr Ewin had said that Mr Basra was not ready.  He considered that Mr Ewin was undermining his “professional skills”.  

1. He agreed that he had been granted 31 hours’ paid leave in addition to his statutory entitlements.

1. He does not wish to return to work if he has to work with either Mr Ewin or Mr Nolan.

1. On 3 June 2024, Mr Basra provided a medical certificate from his GP to Kraftur stating the following:

“I have examined Mr Maheep Basra who in my opinion is suitable to return to work from 04/06/2024 for suitable duties (avoiding power tools, high risk work).  I have asked him to monitor symptoms after starting work and get medical help if needed.  He is currently waiting for a review with Psychiatrist.

1. Mr Basra is required to perform high risk work as defined by the Work Health and Safety Regulation 2011 (QLD), and accordingly, pursuant to the above medical certificate, was not fit to perform the work required of him.

1. Mr Basra was examined again on 23 July 2024 by his GP who declared him fit for usual duties from 24 July 2024.  During the Hearing, Mr Basra stated that he would not return to work if he had to work with Mr Ewin or Mr Nolan.  Accordingly, he did not return to work.  

Orders sought by Mr Basra

1. Mr Basra seeks a number of orders.  He considers that he has been bullied and harassed by all three Persons Named.  He seeks orders so that the Persons Named will cease bullying and harassment to him.  This includes direct interactions as well as indirect interactions such as spreading rumours, verbally threatening, making demeaning comments and purposely creating challenges at work.

1. Mr Basra seeks an order that Kraftur provide to him proper and sufficient time to set up laser equipment before concreting commences.  He seeks an order that he be supervised by Mr Karl Hibbs.

1. Mr Basra seeks an order that the workplace be regularly monitored for compliance with anti-bullying policies, with periodic reporting to the Commission or an independent third party to ensure the work environment remains free of bullying.   Further he seeks a mechanism for confidential reporting of future incidents of bullying without fear of retaliation.

1. He seeks an order that he have limited interaction with the Persons Named.

Evidence of Mr Adam Ciobo

1. Mr Adam Ciobo is a Concrete Finisher formerly employed by Kraftur. Mr Ciobo stated that his experience of working with Mr Nolan was initially positive. However, after he and Mr Basra, whom he considered his friend, were assigned to work together under Mr Nolan’s supervision, he considered that Mr Nolan’s behaviour changed upon realising that he and Mr Basra were friends. Mr Ciobo stated that when he broke a tool on-site, Mr Nolan demanded that he purchase beers to compensate for the damage, and that Mr Nolan said he had recently made Mr Basra do the same thing.

1. When a case of beer was brought to site, Mr Nolan drank with Mr Ciobo and other employees on site. A six-pack was consumed in the car park.  Mr Nolan then took the remaining 18 beers home.

1. During his last day of employment at Kraftur, Mr Ewin told him to return all tools to Kraftur. Mr Ciobo said that he had never taken any tools from work. Mr Ewin then implied that Kraftur would withhold his salary if he had taken any tools. Mr Ciobo considered this to be a threat from Mr Ewin.

Evidence of Mr Steven Dimitrievski

1. Mr Steven Dimitrievski is a Carpenter formerly employed by Kraftur. Mr Dimitrievski’s evidence is that he worked with Mr Nolan on only two occasions. On one occasion, Mr Nolan admonished him in front of 5-6 other employees after they had all walked over to speak with another employee, shouting from a forklift, “Hey Steve, are you gonna fucking do anything today or what?”

1. During his other shift with Mr Nolan, Mr Dimitrievski stated that he was tasked with forming garden beds around the office without any plans or clear instructions, other than a supervisor providing some guidance about the direction of the fall and the placement of dowels. At the end of the shift, Mr Nolan questioned why the dowels were placed where the supervisor had directed and stated that the measurements provided by the supervisor for the garden bed were wrong. Mr Nolan then instructed Mr Dimitrievski and another employee to pack up and go. Mr Dimitrievski stated that this suggested Mr Nolan considered they had no idea what they were doing.

1. Mr Dimitrievski stated that he recalls working with Mr Basra in 2023, where Mr Nolan displayed “overbearing authority” and made “belittling comments such as, ‘forget about jumping in the mud, just go over there and start rolling plastic’”.

1. Mr Dimitrievski does not consider that Mr Basra has been bullied by Mr Prevost or Mr Ewin.  He stated during the Hearing that when Mr Basra asked him to make his statement in these proceedings, he probably was not in the right headspace, having been dismissed by the Respondent for making a comment on the Deputy commentary read by all.

Evidence of Mr Aden McGuane

1. Mr Aden McGuane is a Carpenter formerly employed by Kraftur. Mr McGuane stated he understood Mr Dimitrievski had been dismissed based on anonymous feedback posted on Deputy.  He stated that during his time at Kraftur, Mr Basra never supported or encouraged any bullying and was a “good worker with a great attitude”.

EMPLOYER’S AND PERSONS NAMED MATERIAL

Form F73 Employer Response

1. Mr Prevost completed the Form F73 Employer Response on his own behalf and on behalf of Kraftur.

1. In relation to allegations that Mr Nolan had observed Mr Basra completing his work slowly and inefficiently, Kraftur submitted that in a conversation with Mr Basra on 25 August 2023, Mr Booth explained that as Mr Basra was washing the machine at the far end of the site, he could not be seen by Mr Nolan and others. Mr Booth advised Mr Basra to only wash the machine outside, and then return to the building to complete other tasks.

1. Kraftur submitted that on 29 August 2023, Mr Booth spoke to Mr Nolan, who confirmed that Mr Basra’s performance had been improving. Mr Booth raised this at Kraftur’s weekly leadership team meeting, and Mr Booth was tasked with presenting Mr Basra with a work improvement recognition letter. This was provided to Mr Basra on 31 August 2023, and Mr Basra expressed his appreciation for this on his LinkedIn profile.

1. On 21 February 2024, a client of Kraftur, Laminex, required Kraftur to cease work and recommence on 8 March 2024. Mr Basra had been working on the Laminex project under the supervision of Mr Abercrombie, operating the S-15R laser screed. During the stoppage of work on the Laminex project, Kraftur seized an opportunity to provide its employees, including Mr Basra, with continuous work by redirecting them to the DP World project supervised by Mr Nolan. It was submitted that Mr Lowry viewed this as an opportunity for Mr Basra to receive 3D Operations training on the DP World site.

1. Kraftur submitted that 27 February 2024 was a particularly busy day, with 18 employees, including Mr Basra, working at the DP World site under the supervision of Mr Nolan. The employees were recognised for their performance that day by Mr Prevost, who posted an announcement on Deputy. Mr Nolan also posted a message of appreciation on Deputy. In the comments of that post, the exchange at [36] took place between Mr Basra and Mr Nolan, which Kraftur submitted was an example of Mr Basra venting his personal frustrations.

1. On 28 February 2024, Mr Booth received the following text message from Mr Basra at 5:55am:

“Good Morning Richard

I need to sit down with someone and have a chat about some of the issues I have had with allocations in the past two days. I have not been given any support when the chips were down in my personal life. It just makes my whole work experience salty and I loose motivation to work.

I asked Brad to give me 4 am or early start because I am the only person looking after my 4 year old this whole week. There’s 485 operating at Toll POB. I could easily been have allocated there yet Brad felt the urgency to allocate me at 6 am to jackhammer some excessive concrete at DP world.
I have heaps more to say that’s why it’s better to have sit down and have a chat about it rather than me sending you long text messages.
Regards,
Baz”.

1. Mr Booth responded to the text message, arranged to meet Mr Basra on site during the morning, and asked if Mr Basra needed to leave early that day. Mr Basra informed Mr Booth that he needed to leave at 1:30pm. Mr Booth then met with Mr Basra at approximately 10:00am. Kraftur submitted that Mr Booth also had a conversation with Mr Nolan that day. Mr Nolan stated that Mr Basra had not informed him that Mr Basra needed to leave early that day.

1. On 29 February 2024, Mr Basra attended the office in the afternoon and requested to speak with Ms Hibbs, however Ms Hibbs was on personal leave that day. Mr Prevost asked Mr Basra why he wanted to speak specifically with Ms Hibbs. Mr Basra said that it was because he was being harassed at work by Mr Nolan. Mr Prevost suggested they have a meeting on 4 March 2024, by which point he anticipated Ms Hibbs will have returned to work.

1. Mr Prevost checked to ensure that Mr Basra was comfortable with his work allocation on 1 March 2024 at the Toll site. Mr Basra advised he was happy to work at this site. Mr Prevost sent a meeting invite to Mr Basra, Mr Booth and Ms Hibbs for a meeting on 4 March 2024. Mr Prevost also spoke to Mr Lowry to ensure that Mr Basra was not allocated to the DP World project while the Laminex project was still suspended. Mr Basra would then recommence on the Laminex site once work on that site resumed.

1. On 4 March 2024, citing personal reasons, Ms Hibbs resigned from her employment with Kraftur, and sent a resignation letter by email the following day. Ms Hibbs therefore did not participate in the scheduled meeting with Mr Basra. Kraftur submitted that it was for this reason that Mr Prevost could not explain Ms Hibbs’s absence from the meeting to Mr Basra.

1. Mr Booth, Mr Basra and Mr Prevost attended the meeting, during which Mr Basra detailed his complaints. Kraftur submitted that the word “unsafe” was not used during the meeting, but the word “harassed” was. Kraftur acknowledged that the behaviour complained of by Mr Basra did not align with Kraftur’s values, and the following commitments were given to Mr Basra:

·   A discussion would be held with Mr Ewin and Mr Nolan to understand their accounts of the situation;

·   Mr Basra would not be allocated to the DP World project site until the matter was resolved;

·   Mr Basra would return to the Laminex project site under Mr Abercrombie’s supervision; and

·   A follow-up meeting with Mr Basra would be arranged after the work on the Laminex project was complete.

1. On 5 March 2025, Kraftur held a leadership team meeting, in which Mr Basra’s concerns were discussed. It was decided that Mr Lowry and Mr Booth would have conversations with Mr Ewin and Mr Nolan, and there would then be a conversation with Mr Basra. Mr Booth met only with Mr Nolan in March.

1. On 2 April 2024, Mr Booth met with Mr Basra, confirming his discussions with Mr Nolan. Mr Booth sent a follow-up email to Mr Basra on 4 April 2024, confirming their discussions. Mr Basra responded to this email on 6 April 2024, stating that his issues remained unresolved, and requesting a meeting with Mr Booth and Ms Hibbs.

1. The meeting occurred on 15 April 2024, after being rescheduled from 12 April 2024 at Mr Basra’s insistence on account of the memorial service for a former employee. At the meeting, Kraftur submitted that Mr Prevost was interested to find out why Mr Basra wanted to speak with Ms Hibbs. After the meeting, Mr Prevost sent the email at [48] to Mr Basra.

1. Kraftur submitted that Mr Basra has been reluctant to perform labouring duties reasonably required of him by Mr Nolan and Mr Abercrombie, and this has been documented in Deputy and raised with Mr Lowry and Mr Booth. Kraftur submitted that Mr Lowry and Mr Booth’s management of Mr Basra’s performance concerns has been reasonable management action.

1. Kraftur noted that in February 2024, it implemented a performance management plan, and leadership team members completed online performance management courses provided by the Fair Work Ombudsman.

1. In April 2024, Kraftur offered anti-bullying training to site supervisors. Mr Nolan and Mr Ewin attended this training. Kraftur stated that it is considering including a formal training workshop at a site supervisor conference later in the year.

1. In April 2024, Mr Paul Ryan commenced employment with Kraftur in the position of General Manager. Mr Ryan has been briefed on the issues involving Mr Basra and has been tasked with leading a return to work program for Mr Basra.

1. In relation to the allegation that Mr Basra was instructed to purchase beers, Kraftur noted that its alcohol policy prohibits alcohol being consumed on site. After becoming aware of instances of on-site alcohol consumption, Mr Lowry reminded staff of the alcohol policy via a Deputy announcement on 24 February 2024.

1. Kraftur did not specifically respond to the allegations that Mr Ewin prevented Mr Basra from completing 3D operations training, considering it a matter for Mr Ewin to address. However, Kraftur stated that on the basis of an investigation conducted, it considered Mr Ewin’s actions to be reasonable management action.

Response to February 2024 incidents

1. Kraftur submitted that the issues on 27 February 2024 were the result of communication failures between Mr Basra and Mr Nolan. Kraftur submitted that it would have been reasonable for Mr Basra to speak with Mr Nolan at the beginning of his shift, regardless of any conversations he had with Mr Ewin beforehand, to remind Mr Nolan of the need for an early finish. Kraftur submitted that Mr Nolan had a very busy day scheduled, and it could appreciate Mr Nolan being frustrated at learning that Mr Basra was finishing early. Mr Nolan recorded the following journal note on Deputy on 27 February 2024 in relation to the incident:

“Left site after 6 hrs, said he had told Brad previous day that he had to finish early, told me 5 mins before he left.

No respect or communication shown from Baz. I could have got someone else to fill his shift and not be down a man mid way through a pour.
Regularly finishes his shift whenever he feels like it and leaves site.”

1. Kraftur submitted that Mr Nolan “assures” he has no personal motives against Mr Basra.

1. In relation to the meetings held in March 2024, Kraftur submitted that Mr Prevost does not recall the word “unsafe” being used in the meeting of 4 March 2024, but the word “harassed” was used. However, Mr Prevost does recall the word “unsafe” being used in the 15 April 2024.

1. Kraftur submitted that Mr Basra’s allegation that it took too long for Kraftur to respond to his email of 6 April 2024 is “overly sensitive and insensitive to the pressures managers were facing”.

Response to allegations against Mr Prevost

1. Kraftur denied that Mr Prevost prevented Mr Basra from accessing HR. Mr Prevost intended to involve Ms Hibbs in Mr Basra’s complaint but could not do so because of her resignation. Kraftur submitted that Mr Prevost’s handling of the situation was reasonable management action.

1. Kraftur submitted that Mr Prevost is “direct and frank in his management approach”, but not aggressive. It stated that Mr Prevost’s approach to Mr Basra was the same as his approach to any other person. Kraftur stated that Mr Prevost is working on his management style to prevent misinterpretation.

1. Kraftur further denied that Mr Prevost shut down Mr Basra’s voice during the 15 April 2024 meeting. Mr Rawlinson approached Mr Prevost following the meeting and told him that he thought it was a good meeting. After the meeting, in addition to sending a summary of the meeting to Mr Basra, Mr Prevost sent an email to Mr Lowry asking him to ensure that Mr Basra is not allocated to a site supervised by Mr Nolan.

Response to allegations regarding penalty shifts

1. Kraftur submitted that in March and April 2024, the only night shifts available were at the DP World project and to a lesser degree, the Toll project. As a commitment had been made not to allocate Mr Basra to a site supervised by Mr Nolan after 27 February 2024, he could not be allocated to the DP World project. Mr Basra was allocated some night shifts on the Toll project. He was also allocated to the CH Pinkenba project, and when operations on that project were delayed, the Stockland Yatala project. Kraftur submitted that it was Mr Lowry’s intention to allocate Mr Basra to a new FKG project at the Port of Brisbane when he was not required at Pinkenba, but this project only started in May after Mr Basra had commenced personal leave.

1. Kraftur submitted that its management of this situation was reasonable management action.

Response to Mr Basra’s allegation that he has been promoted to Laser Screed Operator

1. Per Mr Basra’s appointment letter dated 29 November 2022, he was engaged by Kraftur has a CW1 Labourer. Kraftur submitted that his payslips demonstrate that as of May 2024, he has remained in that position.

1. Kraftur noted that in 2023, Mr Basra was offered an opportunity to commence training in laser screed operations, which he accepted. Mr Basra completed a career plan, which Kraftur submitted demonstrates that he has several general site worker (CW1) competencies but only some Concreter (CW2) competencies. Kraftur submitted that an opportunity exists for Mr Basra to gain more CW2 competencies, but Mr Basra’s assertion that he has been promoted is incorrect.

Response to Mr Basra’s allegation that Mr Nolan and Mr Ewin have been promoted

1. Kraftur noted that it has 11 site supervisors, 4 of which (Mr Nolan, Mr Ewin, Mr Murray Ward and Mr Karl Hibbs) are considered senior, and have been considered senior for some time.

1. Kraftur commenced a process of conducting quarterly conversations in September 2023 between supervisors and office staff. The 4 senior site supervisors were ultimately made responsible for holding these conversations. Employees were notified of this via Deputy and emails in April 2024. Mr Basra was notified on 26 April 2024 that Mr Hibbs would be his line manager and mentor for the purpose of the quarterly conversations.  Kraftur therefore submitted that Mr Basra has misunderstood the positions of Mr Nolan and Mr Ewin, and that they have not been promoted.

Response to allegations against Mr Abercrombie

1. Kraftur submitted that it is in Mr Abercrombie’s nature to be assertive. Mr Basra’s performance on 19 April 2024 concerned Mr Abercrombie, and Mr Abercrombie posted the following Deputy journal note:

“Disappointed with Baz again today. Refused to do a simple task and lay out plastic so I told him to go home.”

1. Mr Abercrombie spoke about this issue with Mr Lowry, who spoke to Mr Prevost. Mr Prevost visited the site on 22 April 2024 with Mr Ryan, and they spoke to Mr Abercrombie about Mr Basra. Mr Prevost suggested to Mr Abercrombie that he avoid taking a “strong stance” in relation to Mr Basra. Mr Ryan took the view that as the new General Manager, he should initiate a conversation with Mr Basra. Mr Prevost agreed with this approach.

1. Mr Ryan visited Mr Basra onsite on 24 April 2024. Mr Ryan reported that their conversation went well, and Mr Basra told Mr Ryan that he had been experiencing some difficult family issues.

1. Kraftur provided evidence of Deputy journal notes from various employees, noting their conversations with Mr Basra in which he suggested that there were pressing family matters.

1. Kraftur submitted that it is committed to implementing a return-to-work plan for Mr Basra managed by Mr Ryan and Ms Giovanna Donnithorne-Tait. The plan involved Mr Basra working under the supervision of Mr Hibbs. Mr Ryan contacted Mr Basra on 19 May 2024 to discuss return-to-work options.

1. In evidence given during the Hearing, Mr Prevost stated that Kraftur has spent $275,000 on improvements to culture.  Ms Hibbs was never a HR Manager, but did perform some HR administrative functions.

1. In cross-examination, Mr Prevost considered that any issues Mr Basra had with any personnel in August 2023 had been resolved.  He was awarded recognition and a voucher to have his car cleaned as he took great pride in his car.

1. Mr Prevost stated that there was a concern held in respect of what Mr Basra was engaged in after completing laser screed operator duties.  It appeared to take a long time, and supervisors wanted him to be tasked with performing other duties.

1. It appeared to Mr Prevost that Mr Basra did not have any activity with Mr Nolan for the period of August 2023 to 27 February 2024.  Mr Prevost considers that all relevant parties could have conducted themselves better on 27 February 2024.  It was an exceptionally busy day, and Mr Prevost considers that Mr Basra should have informed Mr Nolan he needed to leave that day at 10:30am.

1. Mr Prevost acknowledges that he sent Mr Basra to work with Mr Nolan at the DP World site even after he said that he would not. Only two hours of work was performed before it rained and all employees were sent home.

Submissions of Kraftur

1. Kraftur submitted that the orders sought by Mr Basra are not orders that the Commission would typically make in respect of applications under s.789FC of the Act. Kraftur denied Mr Basra’s allegations of bullying and submitted that the evidence provided does not disclose any bullying conduct by the Persons Named or Kraftur.

1. Kraftur noted that Mr Basra has made a workers’ compensation application which has been declined, on the basis that the evidence examined by WorkCover Queensland demonstrated that Kraftur had engaged in reasonable management action.

1. Kraftur submitted that Mr Basra’s material contains assertions, assumptions and supposition, and cannot be properly tested. It further submitted that Mr Basra has not provided direct or indirect evidence of acts of bullying by the Persons Named or by Kraftur.

Evidence of Mr John Nolan

1. Mr Nolan completed a Form F74 Response to Mr Basra’s application and filed a witness statement in the proceedings.

1. Mr Nolan stated that he was unaware of any claim that Mr Townsend had refused to work with him. He stated that Mr Townsend has worked onsite with him on multiple occasions since August 2023, including as recently as 3 April 2024.

1. Mr Nolan denied that he started to bully Mr Basra in August 2023 by instructing Mr Basra to assist with tasks outside of his area of responsibility. Mr Nolan stated that as a site supervisor, he is entitled to delegate tasks according to operational demands, and the tasks he instructed Mr Basra to complete fell within the scope of his duties.

1. Mr Nolan rejected Mr Basra's claim that he told Mr Basra he would be “kicked out of the site” if he did not help the finishers in the morning for their setup. Mr Nolan stated that another employee reported that Mr Basra was sitting and looking at his phone while other employees prepared for the concrete pour. Mr Nolan stated he spoke with Mr Basra about the importance of maintaining a cooperative and supportive environment, which includes helping other team members as required. He later spoke with Mr Basra, praising his performance in driving the laser screed, but stating that he needed to improve the time it takes for him to wash the machine. Mr Basra said he would try to improve.

1. Mr Nolan did not notice an improvement in Mr Basra’s performance over the following days and sent a message to Mr Booth and Mr Lowry on 24 August 2023, asking them to speak with Mr Basra. Mr Nolan said he had observed a decline in Mr Basra’s attitude and performance. The next day, Mr Booth spoke with Mr Basra onsite and told Mr Nolan that their conversation had gone well, and Mr Basra agreed to work towards improving his time management skills.

1. Later on 25 August 2023, Mr Nolan stated that Mr Basra confronted him, saying he had no right to contact Mr Booth or Mr Lowry, that Mr Nolan was “no good at [his] job”. Mr Basra also said that he would take as long as he wanted to wash the laser screed. Mr Nolan stated that he told Mr Basra his role was to drive the laser screed and assist with other duties as required.

1. Mr Nolan stated nothing should be made of the fact that he used the word “labourer” to describe Mr Basra. Mr Nolan’s evidence is that the term is widely used in the construction industry, and he has been using it to describe general site duties, noting that labouring duties may be required of all employees on site.

1. Mr Nolan stated that Mr Basra’s application that he had lied about the time it took for Mr Basra to wash the machine is false. Mr Nolan said that he consulted the log which confirmed the time he had said was correct. Mr Nolan said that his expectation that Mr Basra should wash the machine within 60 minutes is not unrealistic and is based on his observations of the time it takes other employees to complete the task.

1. Mr Nolan stated that he never told colleagues that Mr Basra is lazy, and did not convince anybody that he had arranged for Mr Basra to get into trouble. Mr Nolan also denied that he was advised by Mr Booth not to engage with Mr Basra, as this would be an unrealistic approach to supervision.

1. Mr Nolan said that he had not been made aware of the claim that he laughed when Mr Basra drove a forklift over a tool. To Mr Nolan’s knowledge, this incident occurred on 10 August 2023. Following an incident in which Mr Basra crashed into a steel column while driving a forklift, Mr Nolan spoke with Mr Basra, but the job finished on a positive note, and Mr Nolan sent a message to Mr Basra recognising Mr Basra’s good work, which Mr Basra appreciated. Mr Nolan continued communicating with Mr Basra until the end of the job in September 2023.

1. In relation to Mr Basra’s 27 February 2024 allegations, Mr Nolan stated that he sent a message to Mr Basra at 9:26am, asking him to start stripping star pickets and edge boards from a driveway once he was finished washing the laser screed. Mr Basra then replied, saying that he was finishing at 10:30am and that he had notified Mr Ewin of this. Mr Nolan said that Mr Basra’s 8-hour shift was due to finish at 12:15pm and that Mr Basra should have informed him if he needed to finish early. Mr Nolan said that he did not “throw a tantrum” or pressure Mr Basra to remain on shift. Mr Nolan said once Mr Basra left, he logged Mr Basra off for the end of his shift.

1. In evidence given during the Hearing, Mr Nolan stated that he logged Mr Basra off at 10:25am.  It is clear on the evidence before the Commission that at 10:25am, Mr Nolan logged Mr Basra as having completed his shift at 10:15am.  Mr Basra stated he was still working until 10:30am – 10:35am.  Mr Booth ended up correcting the time sheet until 10:30am, and Mr Basra was then paid carer’s leave for the remainder of the day.

1. Mr Nolan said that he has no control over the time Mr Basra’s shifts commence. He described that the allocations process involves him notifying the allocations manager of the number and skill level of workers required for a pour and the time the pour will start. The allocations manager then organises the start times based on this information. Mr Basra had not been allocated to start early, and Mr Nolan stated that he did not require one hour extra to setup, as it had been previously organised that another employee, Mr Ben Hopkinson, would start at 3:30am and setup the 3D system, as he had recently received training on how to use this system. Mr Nolan said that Mr Hopkinson was the only operator qualified in setting up the system, and that Mr Basra was allocated to assist with the pour and receive some training, time permitting. Mr Nolan said that Mr Basra was not scheduled for training.

1. Mr Nolan said that he was not onsite on 28 February 2024 and had given instructions to Mr Shaw regarding the tasks that needed to be completed that day. Mr Shaw was responsible for the allocation of work that day.

1. Mr Nolan refuted the claim that he deliberately altered Mr Basra’s start times and allegations or had any personal motive against Mr Basra. He stated that his actions are always guided by professional standards and the requirements of the project. The DP World project has several components that require employees to start at various times from 1:00am to 6:30am, and start times are rotated amongst employees. Mr Nolan said this was a standard process to ensure the efficient allocation of resources and timely completion of projects.

1. The following email was sent by Mr Nolan to Mr Prevost, Mr Booth and Mr Lowry on 28 March 2024, in response to reports Mr Nolan said he had received from other employees:

“I am writing request a meeting with you to discuss a matter of concern regarding a fellow colleague's behaviour.

Over the past few months, there have been several instances where Baz has made comments to other coworkers. These comments have been brought to my attention by multiple individuals, and I believe it is important for us to address this issue promptly.

Given the nature of the comments and their potential impact on our team dynamics, I believe it is necessary for us to discuss this matter further and explore potential solutions. Additionally, I am concerned about the potential repercussions on morale and productivity if this behaviour continues unchecked.

I am available to meet at your earliest convenience to discuss this matter in more detail. Please let me know a time that works best for you.

Thank you for your attention to this matter, and I look forward to speaking with you soon.

Best regards,

John Nolan”

1. Mr Nolan stated that he had received reports from other employees that Mr Basra was telling colleagues that he would report Mr Nolan for bullying. Mr Nolan had a meeting with Mr Booth and Mr Lowry on 2 April 2024. Mr Booth said that he would speak to Mr Basra about the comments from other employees. Mr Nolan received an email from Mr Booth on 4 April 2024, and he believed from that email that some of the issues were being resolved.

Evidence of Mr Bradley Ewin

1. Mr Ewin completed a Form F74 Response to Mr Basra’s application and filed a witness statement in the proceedings.

1. Mr Ewin denied that he called Mr Basra a “slippery cunt”.

1. While supervising a job at the Port of Brisbane, Mr Ewin stated that a number of Kraftur employees had approached him and commented on the high morale level amongst the team under his supervision. Mr Ewin stated that he thought Mr Basra was among those individuals who approached him. Mr Ewin stated that before Mr Basra would leave the site he would wave to Mr Ewin, and Mr Ewin would wave back if he was comfortable for Mr Basra to leave for the day.

1. Mr Ewin stated that in relation to the proposed 3D operations training for Mr Basra, the intent of rostering Mr Basra at 1:45am was not squarely related to the training, but was to ensure Mr Basra could gain proficiency in driving the S-485 screed on site before he undertook the training. Mr Ewin stated that the nature of this machine is such that it is critical that an operator has proficiency in operating this machine before they complete any 3D operations training.

1. Mr Ewin stated that he received feedback from other employees that Mr Basra was struggling with the S-485 screed, so he and Mr Lowry allocated Mr Basra to the S-15 laser screed, which is easier to operate.

1. Regarding the events of 27 February 2024, Mr Ewin stated that Mr Basra was scheduled for a 4:15am start that day. Mr Hopkinson had recently returned to the site, having received international training on the 3D system. He was therefore scheduled to commence at 3:30am, as only one person was required to setup the machine, and he was the only person capable of doing so. Once set up, Mr Ewin considered that Mr Basra could then follow Mr Hopkinson’s advice on driving the screed. Mr Ewin stated that Mr Basra finished early that day due to family commitments, and he asked Mr Basra to do the best he could, but if he did not have time to clean the machine, someone else would. Mr Ewin stated that Mr Basra left early and was paid for a full day.

1. Mr Ewin stated that he tries not to vary his workers’ start times if they are doing night pours and tries to maintain consistency amongst shift allocations as a means of fatigue management.

1. Mr Ewin stated that he attended the site on 28 February 2024 to drop off a piece of equipment. After doing so, he spoke to Mr Basra and “quietly and calmly”, without raising his voice or standing over Mr Basra, said to Mr Basra, “hey if you don’t mind please don’t call me out on our newsfeed, as doing labour allocation and logistics is an extremely busy job which entails 100s of calls daily and many movements of materials to all the other job sites”.

1. Mr Ewin stated that at no time did he bully or intimidate Mr Basra, and he has never had another employee complain about how he manages day-to-day operations.

1. In evidence given during the Hearing, Mr Ewin stated that he informed Mr Nolan on 26 February 2024 that Mr Basra would need to finish at 10:30am on 27 February 2024.

1. Mr Ewin stated that he would very rarely work with Mr Basra in future – maybe once or twice per month.  He committed to not denigrating him.

CONSIDERATION

1. In respect of Mr Basra’s assertion that in late 2022, Mr Ewin referred to him as a “slippery cunt”, I find on the balance of probabilities that Mr Ewin did make this statement.  This, of course, affected Mr Basra at the time, however he has worked with Mr Ewin since and no other disrespectful comments have made by Mr Ewin to or about Mr Basra.

1. While Mr Basra did not work with Mr Nolan for a considerable period of time, when he was tasked to work with Mr Nolan on 27 February 2024, it was a very busy day and Kraftur reasonably required Mr Basra to perform work at the DP World site, supervised by Mr Nolan.  There was no criticism of Mr Nolan by Mr Basra until such time as Mr Basra reminded Mr Nolan that he had to leave work at 10:30am.

2. I accept that Mr Ewin informed Mr Nolan on the afternoon of 26 February 2024 that Mr Basra needed to leave work at 10:30am on 27 February 2024.  However, given how frantically busy Mr Nolan was that day, he simply forgot.  I do not consider that there was anything malicious in Mr Nolan’s direction to Mr Basra to perform another job mid-morning; it simply slipped his mind that Mr Basra was permitted to leave.

1. Mr view is that Mr Basra unreasonably carried on about being required to leave at 10:30am on account of driving home to then attend to his 4-year-old child being cared for by neighbours.  Mr Basra was permitted to leave and undertake his parental responsibilities.  He was then granted paid leave for the remainder of the day, which in my view was particularly generous of Kraftur and his managers.  Mr Basra’s child was not ill; simply in need of adult supervision.  Mr Basra had not made any inquiries of her regular childcare centre if she could be accommodated that day with the assistance of neighbours dropping her there given her parents were unable to.

1. The over-dramatisation of 27 February 2024 as a “family emergency” and Mr Basra experiencing a “living hell” demonstrates to me that Mr Basra has a very limited coping mechanism.  The exaggeration that Mr Nolan was malicious in allocating a further job, having been informed of Mr Basra’s need to leave early and understandably, being so busy, forgot, is demonstrative of Mr Basra having a limited capacity to deal with the usual vicissitudes of life, including being a parent of a young child.

1. Mr Basra’s then horror at having been clocked off by Mr Nolan at 10:15am instead of 10:30am, while still being paid for the day demonstrates to me that Mr Basra has little cognisance of the realities of Mr Nolan’s responsibilities and juggling a very busy concrete pour and so many workers.  It ought not to have been a huge deal, but Mr Basra made it one.   He was upset, it seems, at having 15-20 minutes of carer’s leave deducted from his accrual when his employer was already being quite generous in paying Mr Basra for the remainder of the day, likely to be more generous than the entitlement in s.97 of the Act.

1. I consider Mr Basra’s snarky comments on the Deputy communication on 27 February 2024 to have been unreasonable.  Mr Ewin politely raised his concern with Mr Basra on 28 February 2024 and left it at that.  Mr Ewin did not engage in any unreasonable conduct by informing Mr Basra that he ought not to have made those comments.

1. Mr Basra takes exception to being referred to as a labourer.  He is a labourer, and sometimes performs higher duties, including laser screed functions.  His assertion during the Hearing that he had mastered some duties within a period of eight weeks of sometimes performing the task, including twice by himself demonstrates, in my view, that Mr Basra has an inflated sense of his abilities.

1. Kraftur, through its managers, has been wanting to see Mr Basra succeed.  Mr Ewin was, in late February 2024, wanting to have Mr Basra learn new skills.   Mr Nolan’s earlier concerns in 2023 about Mr Basra taking too long to clean concreting material are reasonable management concerns, particularly in respect of concrete.  Mr Nolan was not, in my view, picking on Mr Basra; Mr Nolan is a far more experienced operator than Mr Basra, and if he considered Mr Basra was taking too long, it was reasonable management action carried out in a reasonable manner to require him to speed up his duties, allowing him to be redirected into other duties. On Mr Basra’s own account, after he directly asked others if they thought he was lazy, a colleague confirmed that he did appear to be slow and not showing requisite urgency. 

1. Mr Basra’s concerns as to holding a serious discussion some short time before a colleague’s memorial service were valid, and he successfully convinced management to defer the discussions until the following week.  I am certain that Kraftur will learn from that experience and consider the sensitive nature of the matter.

1. Mr Basra’s insistence that Ms Hibbs be present to provide HR advice caused consternation to Mr Prevost.  He was aware that Ms Hibbs had resigned, but Mr Basra did not.  Mr Basra was certain that Ms Hibbs was a HR Advisor, but Mr Prevost knew her not to be.  Only some time later did Mr Basra find information that directed HR inquiries to Ms Hibbs in earlier communication sent by her.  Mr Basra ought to have accepted on Mr Prevost’s reckoning that Ms Hibbs was not available, and in any event, he was meeting with the Managing Director, a person who could make decisions in respect of his concerns.

1. I do not accept that Mr Prevost was acting as aggressively as Mr Basra asserts in the 15 April 2024 meeting.  Mr Prevost agrees that he was raising his voice, and that he was very direct, but I accept that there was, to a degree, frustration with Mr Basra and the issues he was raising. The exaggeration of the 27 February 2024 situation would, in my view, be frustrating.

1. In any event, Mr Prevost took action to ensure that at least in the interim period, Mr Basra would not need to work with Mr Nolan.  This was going to be accommodated, and Mr Nolan and Mr Ewin required to undertake management training, which they have done.

1. I do not consider Mr Basra’s complaint either in respect of Mr Ewin or Mr Nolan regarding his shift start times to constitute bullying.  Both employees have a significant task in ensuring manning levels, customer needs and budgets and all other considerations are met.  It is reasonable management prerogative to organise and coordinate shift start times among a large group of employees.  Mr Basra’s insistence that he ought to start earlier to benefit from penalty rates and be provided with more set-up time is unreasonable.  The business has invested in a particular employee being internationally trained and it is not for Mr Basra to insist that he start work at a certain time or be afforded his declared set-up time if the business decides otherwise, which I consider they have reasonably done.  The business, including Mr Nolan and Mr Ewin is better placed than Mr Basra to determine appropriate setup times.

Conclusion

1. In order to make final orders in an anti-bullying application, there are two requirements under s.789FF(b) of the Act. The Commission must first find that Mr Basra has been bullied at work by an individual or a group of individuals and secondly that there is a risk that Mr Basra will continue to be bullied at work by the individual or group concerned.

1. Once these two requirements have been satisfied, s.789FF confers on the Commission a broad, discretionary power to make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent an employee from being bullied at work.

1. There is no dispute that the employer is a constitutionally-covered business, and it is also accepted by the parties in this case that the alleged conduct, if it occurred, took place whilst Mr Basra was at work.

1. The application of s.789FD has been discussed in various decisions of the Commission where it has been held that the terms of s.789FD are to be applied objectively and that s.789FD(2) ‘reasonable management action carried out in a reasonable manner’ is not so much an ‘exclusion’ but a qualification which reinforces that bullying conduct must of itself be unreasonable.[1] It also emphasises the right of management to take reasonable management action in the workplace.[2]

1. The issues in dispute in this case are therefore whether Mr Prevost, Mr Nolan and Mr Ewin have repeatedly behaved unreasonably towards Mr Basra, and whether any such behaviour has created a risk to his health and safety. In considering whether there has been repeated unreasonable behaviour the Commission needs to consider whether any of the conduct was reasonable management action taken in a reasonable manner.

1. In Mac v Bank of Queensland Ltd,[3] Hatcher VP (as he was then) provided the following examples of conduct “which one might expect to find in a course of repeated unreasonable behaviour that constituted bullying at work” as including:

“… intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal 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.”[4]

1. In Edwards v E S Trading Co (Discounts) Pty Ltd (t/as E & S Kitchen, Bathroom Laundry),[5] an employee’s genuinely held belief that she was being bullied at work was insufficient to enliven the Commission’s jurisdiction. The conduct must not only be perceived as being bullying, but that belief “must be reasonable in the sense that it is able to be supported or justified on an objective basis.”

1. In Ms SB, Hampton C (as he was then) observed that:

“whether management action is reasonable requires an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time”.[6]

1. The Commissioner also relevantly stated:

“The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was “more reasonable” or “more acceptable”. 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.”[7]

Mr Ewin

1. I have determined that some years ago, while Mr Basra was at work, Mr Ewin made a very offensive statement about him.  Quite understandably, Mr Basra was upset by this vile remark, and it caused some risk to his health and safety.  Other than in respect of this statement being made once (or three times according to Mr Basra) in late 2022, it has not been repeated. 

1. If it were necessary to determine how many times it was said to or about Mr Basra, I would do so.  If it had been said on more than one occasion, I would find that it was repeated unreasonable behaviour to constitute bullying pursuant to s.789FD(1)(a) of the Act.  However, given that I am satisfied that there is no risk that Mr Ewin will engage in this conduct towards or about Mr Basra in the future, the threshold required pursuant to s.789FF(1)(b)(ii) has not been met.  For the sake of clarity, I am satisfied that Mr Ewin will not likely engage in any conduct towards Mr Basra to cause a risk that he will continue to be bullied at work by Mr Ewin.

1. I am of the view that if Mr Basra was required to work with Mr Ewin in the future, Mr Ewin would engage in reasonable behaviour towards Mr Basra.

Mr Nolan

1. In respect of Mr Nolan’s conduct towards Mr Basra, I accept that Mr Basra has, at times, felt uncomfortable around Mr Nolan.  I am not satisfied, however, that there is any instance where Mr Nolan has behaved unreasonably towards Mr Basra.  It is concerning, however, that there appears to be a culture of suggesting to employees that purchasing beer for the site would be appropriate when they have messed up.  In Mr Basra’s case, it was not Mr Nolan who suggested he should purchase beer, it was Mr Croton. 

1. Understanding the nature of the concreting industry, there will be times of great urgency.  Mr Nolan has a large responsibility and will have to issue directions at times. I do not consider the workplace directions issued to Mr Basra to-date to have been unreasonable. 

1. I consider Mr Nolan’s conduct on 27 February 2024 to be entirely understandable, including having forgotten that Mr Basra had to leave work early, and I consider Mr Basra’s description of the events of 27 February 2024 to be overly and unreasonably fragile.

1. While Kraftur determined in April 2024 that Mr Basra ought not be assigned to work with Mr Nolan, I consider it was for an interim period of time and to allow Mr Nolan to undertake training to improve his management skills.  The last thing Kraftur wanted was an ongoing claim, and it was easier to ensure that Mr Basra considered he was safe in the workplace.  The separation could be accommodated, and in Mr Basra’s best interests, it was.

1. I am not satisfied that Mr Nolan has repeatedly engaged in unreasonable behaviour towards Mr Basra, and therefore Mr Basra has not been bullied by him.

1. I am of the view that if Mr Basra was required to work with Mr Nolan in the future, Mr Nolan would engage in reasonable behaviour towards Mr Basra.

Mr Prevost

1. Mr Basra’s complaint about Mr Prevost is largely confined to one meeting.  Mr Prevost also accommodated Mr Basra’s concerns when he agreed to separate Mr Nolan and Mr Basra for an interim period on 15 April 2024.

1. I am not satisfied that Mr Prevost has repeatedly engaged in unreasonable behaviour towards Mr Basra, and therefore Mr Basra has not been bullied by him.

1. In April 2024, Kraftur employed Mr Ryan, and I am of the view that Mr Ryan will provide an avenue for Mr Basra in the event of any future concern he has in respect of any employee’s conduct and would be a good resource if Mr Basra has any concerns about Mr Prevost’s conduct, albeit it is recognised that Mr Prevost is senior to Mr Ryan.

Disposition

1. Because I am not satisfied that Mr Basra has been bullied at work as alleged, and further, there is no risk that he will continue to be bullied at work by the Persons Named, there is no power to make the orders sought, and the application is dismissed. An order giving effect to this will be issued in conjunction with this decision.

1. 
   Kraftur has previously encouraged Mr Basra to return to work under Mr Karl Hibbs, with occasional supervision and interaction with Mr Ewin and Mr Nolan.  Ultimately it is a matter for Mr Basra if he wishes to return to work under those circumstances.  If he does not, there would appear to me to be some risk to Mr Basra’s continuing employment.

COMMISSIONER

Appearances:

M Basra for the Applicant.
C Dorber, with permission, for Shepcon Qld Pty Ltd T/A Kraftur and the Persons Named.

Hearing details:

2024.
Brisbane.
26 July & 15 August.

Final written submissions:

30 August 2024.

[1] Mac v Bank of Queensland Ltd[2015] FWC 774 at [95].

[2] GC [2015] FWC 6988 at [47], [52] and Mac v Bank of Queensland ltd [2015] FWC 744 at [48], [88].

[3] [2015] FWC 744.

[4] Ibid at [99].

[5] [2016] FWC 8223 at [61].

[6] [2014] FWC 2104 at [49].

[7] Ibid at [51].

Printed by authority of the Commonwealth Government Printer

<PR781974>