Application by Mr Ming Kei Wong
[2024] FWC 2856
•15 OCTOBER 2024
| [2024] FWC 2856 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Application by Mr Ming Kei Wong
(AB2024/629)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 15 OCTOBER 2024 |
Application for orders to stop bullying – chef de partie – absence due to injury – absence notified – additional request to notify shift manager – whether additional request bullying conduct – request refused – disciplinary meeting – whether disciplinary meeting bullying conduct – disciplinary action not taken – whether delay in notifying outcome bullying conduct – bullying conduct not established – application dismissed – observations on employer systems
On 22 August 2024 Ming Kei (Frank) Wong (Mr Wong or the applicant) applied to the Commission) under section 789FC of the Fair Work Act 2009 (FW Act) for an order to stop bullying.
The application is against Skycity Adelaide Pty Ltd and two named persons, Mr Sebastian Popp and Ms Katherine Quaziz (collectively the respondents).
I held conferences and issued directions on 16 and 23 September 2024. I directed the parties to privately conciliate. That occurred, but the matter did not resolve.
I heard the application by video on 8 October 2024. All parties were self-represented.
I received evidence from four persons:
Ming Kei (Frank) Wong, applicant and Chef de Partie;
Sebastian Popp, Executive Sous Chef;
Katherine Quaziz, Human Resources Business Partner; and
Cameron Tannock, General Manager People and Culture.
All witnesses were conscientious and sought to provide accurate evidence based on their recall. Apart from a number of minor matters, the facts are largely not in dispute.
Facts
Background
Skycity is the operator of the Adelaide casino. Its business operations include hospitality and catering services. It employs persons in a variety of departments. Two such departments include ‘Conference and Events’ and the ‘Kitchen’ Department.
Mr Wong is an employee engaged in the Conference and Events Department. He is a Chef de Partie. He reports to the Executive Sous Chef, Mr Popp.
Mr Wong is employed under the Skycity Adelaide Casino/United Workers Union Enterprise Agreement 2021 (the Skycity Enterprise Agreement).
At the time of the relevant events, Mr Wong had applied for a different role in the casino, as a finance officer. That application was undetermined at the time of the alleged bullying but shortly thereafter Mr Wong was advised that his application was unsuccessful.
At the time of the alleged bullying Mr Wong was a full time employee. He subsequently converted to casual employment.
In early July 2024, Mr Wong was advised by Mr Popp that a slowdown of business in the Conference and Events Department meant that he may need to be moved to the Kitchen Department.
On 12 July Mr Wong was advised by Mr Popp that the move was necessary and would occur from 15 July. Mr Popp did not inform Mr Wong that the move was temporary but in Mr Popp’s mind it was likely to be temporary until business activity in the Conference and Events Department picked up. Mr Wong was placed on a fortnightly roster in the Kitchen Department. In that department he was reporting to the Head Chef Ms Kel Delaney.
Mr Wong was not happy about the move or the proposed fortnightly roster. Some of the shift times did not suit his personal circumstances. He immediately spoke to Mr Popp. An interim agreement to allow time to adjust was reached whereby Mr Wong would take two weeks annual leave (not work the 15 July fortnightly roster in the Kitchen Department) but work any busy days in that period in the Conference and Events Department.
This arrangement applied for the fortnight of 15 to 28 July.
The next roster in the Kitchen Department was the fortnight from 29 July 2024. Mr Wong worked his first rostered shift in that department on 30 July 2024. He worked that day and the week following.
Events 7 August
Mr Wong was due to start a shift in the Kitchen Department at 3.00pm on 7 August 2024. Mr Wong injured his back on a recreational walk that morning. He was not well enough to work the rostered shift.
At about 1.00pm Mr Wong contacted Skycity’s ‘DHS wellness@work’ system and notified his absence.
The DHS system (and its related procedure and protocol) require employees who are unable to work due to illness or injury to make phone contact prior to their rostered shift and speak to a contracted medical officer. The Skycity employee identifies their name, employee number and nature of their illness or injury. The DHS medical officer provides some basic medical guidance. The DHS system then sends an automated message to that employee’s manager advising of their absence from the rostered shift. The manager to whom the system automates the message is the manager recorded in the DHS system as managing that employee. Each seven to ten days Skycity’s human resources department updates the DHS system as it becomes advised of internal employee movements or changes of manager.
In the case of Mr Wong, on 7 August 2024 the DHS system recorded Mr Popp as his manager. This is because Mr Wong had not been permanently moved to the Kitchen Department. No administrative change or instruction to the DHS system had been made which would have automatically informed Ms Delaney of an absence by Mr Wong.
Mr Popp was occupied providing hospitality services at lunchtime and in the afternoon of 7 August. He received contact from Ms Delaney at about 3.30pm asking if he knew whether Mr Wong would be working that day (as Mr Wong had not attended at 3.00pm as rostered). Mr Popp checked his device and saw a DHS message to the effect that Mr Popp had phoned in unable to work.
Not wanting a repeat of that day’s situation where communication delay about a rostered absence occurred, Mr Popp sent Mr Wong text messages at 3.44 and 3.45pm:[1]
“Hey there
Do me a favour and let Kel know when your sick”.
Starting nine minutes later (at 3.54pm) and over the following five minutes (until 3.59pm) Mr Wong replied with seven consecutive text messages to Mr Popp. They read:[2]
“Oh sorry, not wanna open an communication channels there to get more nuisance.” (3.54pm)
“Being placed there is already very disturbing. I just want to be there, do the work, and go. Not wanna anything more. Sorry.” (3.55pm)
“Also, I only say yes to anything there. I don’t wanna argue on anything, or any opinions, especially she’s going through the treatment.” (3.56pm)
“I will be back there tomorrow anyway for the week.” (3.56pm)
“Thank you pls inform her. I don’t want her to have my contact.” (3.57pm)
“She can speak to me in the kitchen.” (3.57pm)
“I mean I am a ball being kicked around. I don’t needed to be contacted.” (3.59pm)
Mr Popp did not reply.
Mr Wong returned the next day (8 August) and continued to work in the Kitchen Department.
Skycity’s human resources department was alerted to Mr Wong’s refusal to inform Ms Delaney when he is sick.
Separately from matters involving Mr Wong, on 9 August 2024 Mr Tannock sent an email to all Skycity staff reminding them of the requirement to use the DHS hotline to report absences from work due to sickness.[3]
Events 12 and 13 August
On 12 August 2024, Mr Wong was informed by an email and letter from a human resources advisor, Ms Lisa Moore, that he was required to attend a meeting the following day "regarding concerns in relation to not following reasonable management instruction".[4] He was invited to bring a support person. The letter stated that “depending upon the outcome of the process, you may be subject to disciplinary action”.[5]
Mr Wong replied that evening seeking assurances that his finance officer application would not be adversely affected by the meeting. He also requested that, prior to the meeting, Skycity’s legal department provide its human resources department an October 2023 agreement reached between Skycity and Mr Wong on earlier unrelated workers compensation litigation in the South Australian Employment Tribunal.
Ms Moore replied that persons from other departments would not be involved in the meeting.
The meeting of 13 August 2024 took place, face to face, and was attended by Mr Wong, a support person, Ms Quaziz (HR Business Partner), Ms Moore (HR Adviser and note taker) and Mr Popp. Prior to the meeting Mr Wong telephoned Ms Quaziz. She confirmed that the meeting would only discuss the allegation concerning the refusal to inform Ms Delaney of sick leave absences.
Notes of the meeting are in evidence.[6] Mr Wong’s evidence was that the notes are incomplete and, in several respects, inaccurate. Ms Quaziz deposed that the notes are accurate but not a verbatim record. I generally accept Ms Quaziz’s evidence. The incomplete elements appear to relate to other issues (the finance officer application and the earlier SAET proceedings) which, if discussed at the meeting (they may have been discussed in the pre-meeting phone call), were not material to the meeting’s purpose. The incomplete content includes a request by Mr Wong that the meeting be cancelled on the basis that it was unjustified, and that request being denied.
Ms Quaziz commenced the meeting by indicating that Mr Wong had notified the DHS wellness@work system on 7 August, but then sent messages to Mr Popp which she stated “were disgruntled and disrespectful in tone”. that Mr Wong had refused to contact Ms Delaney and that Mr Wong did not wish to communicate with Ms Delaney except when he was at work.[7]
Mr Wong’s explanation (accepted by Mr Wong in evidence as correctly recorded) was as follows:[8]
“Frank asserted that he followed the correct protocol by notifying DHS of his absence and informing his manager. He emphasised that it is Sebastian's responsibility to inform Kelly Delaney and that he is not obligated to perform Sebastian's duties. Frank further stated that his responsibility was to call DHS, and he does not feel the need to be nice in doing so.
Katherine reminded Frank of his obligation to adhere to SkyCity's values-Own it, Share it, and Live it.
Frank reiterated his frustration, stating that it is not his job to perform Sebastian's duties, including communicating with Kelly. He expressed that Kelly is a co-worker, and it is not his responsibility to communicate with her, particularly as she has a practice of contacting team members outside of work hours, which he finds a nuisance. Frank insisted that Sebastian should fulfill his own duties and that there is no reason for a manager to contact him directly in such matters. Frank stated he did not have Kelly's details and didn't want them.”
Ms Quaziz then stated that Skycity considered Mr Popp’s request to be reasonable and Mr Wong’s refusal unreasonable. Mr Wong became frustrated that Skycity did not accept his position. Mr Wong indicated that the request by Mr Popp was expressed as a discretionary “favour” which he was entitled to refuse; especially since he had complied with Skycity’s DHS procedure. Twice Ms Quaziz adjourned the meeting to allow a break for Mr Wong and his support person to cool down. Mr Wong re-stated that he “worked for Catering and Events”, reported to Mr Popp, “would not be doing any favours to Sebastian (Mr Popp)” and, as he did not think that he was being shown respect by Mr Popp, would show Mr Popp “a lower standard of respect”.[9]
With the meeting not reaching a resolution and running longer than scheduled, Ms Quaziz closed it indicating that Mr Wong could provide further information and that Skycity would consider what if any disciplinary action would be taken.
Immediately following the meeting, Ms Quaziz had another pre-arranged meeting with Mr Wong to discuss a separate matter he had raised.
Upon listening to Mr Wong’s position and explanations, Ms Quaziz’s provisional view was that Mr Wong had not acted reasonably when responding to Mr Popp’s request, but that no disciplinary action should be taken because Mr Wong had notified the DHS hotline and because the move to the Kitchen Department was temporary.
Ms Quaziz did not inform Mr Wong of this provisional view because she wanted to speak to other managers before confirming Skycity’s position.
For his part, Mr Wong was upset by the events generally and the 13 August meeting in particular. He went on two week’s personal (stress) leave (until 31 August) during which he accessed Skycity’s employee assistance programme. During this period Mr Wong was advised that he was unsuccessful in applying for the finance officer position.
Decision on disciplinary action
Skycity decided not to take disciplinary action against Mr Wong. However, Ms Quaziz decided not to immediately inform Mr Wong because he was absent on personal leave.
Not having heard from Skycity for a week, and at the suggestion of the employee assistance programme, on 20 August 2024 Mr Wong filed a bullying application in the Commission.
Separately, Mr Wong sought a change in his employment status from full time to casual. This was confirmed by Skycity on 29 August 2024, with the change taking effect from 16 September 2024.[10]
Skycity filed a response in the Commission on 2 September. In its response Skycity indicated that “the performance issue was low level” and that “no disciplinary action was taken as a result of the meeting”.[11]
Mr Wong was served and read the employer’s response on 3 September. This was the first time he learnt that no disciplinary action was to be taken against him.[12]
On 4 September 2024 Ms Quaziz wrote to Mr Wong:[13]
“Hi Frank
I hope this email finds you well.
I note that you have returned to working following your personal leave.
As discussed, please see attached notes taken from the meeting. No formal disciplinary action has been recorded however these notes from our meeting have been kept on your personal file.
If you have any questions, please feel free to reach out.
Thanks
Katherine”
Submissions
Mr Wong
Mr Wong submits that he was subject to workplace bullying by Skycity, Mr Popp and Ms Quaziz.
The bullying conduct alleged by Mr Wong is threefold:
requiring him, whilst on personal leave, to take an additional step to notify his absence to a person who was not his official manager;
convening, and then refusing to cancel, the meeting on 13 August; and
delaying advice on the outcome of the meeting for three weeks (13 August to 4 September).
Mr Wong submits that this conduct, individually and collectively, constituted workplace bullying.
Mr Wong submits that the bullying conduct created a risk to his health and safety, evidenced by the fact that he had to take a period of personal (stress) leave from 13 August until 31 August 2024.
Mr Wong seeks:
a finding that Skycity “abused its managerial power”;
a direction that he will not be required to take any steps when notifying a personal leave absence other than complying with the DHS wellness@work procedure and protocol;
an apology from Mr Popp; and
recission of all records of the meeting, and of the fact that disciplinary action was considered.
Skycity (and the persons named)
Skycity submit that the action it took was reasonable management action carried out in a reasonable manner (s 789FD(2)). That being so, no workplace bullying occurred.
Skycity submit that whilst Mr Wong complied with the DHS procedure the additional request by Mr Popp was reasonable in the circumstances given that:
Mr Wong was temporarily working in another department managed by Ms Delaney. In order to enable her to plan around employee absences, it was a reasonable request that Mr Wong message Ms Delaney if he was to be absent from a rostered shift;
Mr Popp’s responsibilities did not always enable him to immediately identify and on-forward to other managers employee absences that were notified to him via the DHS system; and
the request made of Mr Wong was capable of being simply complied with via a text message from him to Ms Delaney. He was capable of complying, evidenced by the seven text messages he sent to Mr Popp refusing to do so. His reasons for refusing to do so were disrespectful and unreasonable.
Skycity submit that the decision to convene a meeting was reasonable because an apparent refusal to comply with a management direction had occurred, and this needed discussion and explanation. In indicating that disciplinary action was possible, Skycity was providing procedural fairness. Skycity did not foreshadow disciplinary action, only indicated that it was possible depending on the circumstances.
The decision to not impose a disciplinary sanction but to leave the notes of the meeting on the record was proper and professional. Mr Wong was subsequently given the opportunity to put a written statement on the file to correct or comment on the meeting notes. He did not take up that offer.
There was no undue delay in advising Mr Wong that no disciplinary outcome would be taken. He was advised once a decision was made and when it was apparent that he had returned to work from personal leave. Not informing Mr Wong whilst he was on personal leave was reasonable.
As there was no workplace bullying within the meaning of the FW Act, the application should be dismissed.
Consideration
Section 789FD(1) of the FW Act provides:
“(1) A worker is bullied at work if
(a) While the worker is at work in a constitutionally-covered business:
(i)an individual; or
(ii)a group of individuals;
repeatedly 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.
It should be noted that reasonable management action carried out in a reasonable manner is not bullying conduct (s 789FD(2)).
A remedy can relate only to the prevention of future bullying. No order can be made unless it is found, as a jurisdictional fact, that the worker was bullied, that the bullying was repeated and that there is a risk of continued bullying at work (s 789FF).
No jurisdictional issue arises. Mr Wong was a worker as defined. Skycity is a constitutionally covered business.
I now deal with each of the bullying allegations by Mr Wong.
Request to notify shift manager
Mr Wong submits that he was bullied by Skycity and Mr Popp when Mr Popp required him, whilst on personal leave, to take an additional step to notify his absence to a shift manager (Ms Delaney) who was not his official manager.
There is some merit in Mr Wong’s contention though, for the following reasons, I have not found the conduct by Skycity or Mr Popp to be bullying conduct as defined.
It is readily apparent, and not contested, that Mr Wong exercised a workplace right under both the FW Act and the Skycity enterprise agreement to take personal leave on 7 August 2024.
It is also undisputed that Mr Wong’s obligation as an employee was to provide prior notification to Skycity via the DHS hotline of an intended absence from a rostered shift due to illness or injury. Mr Wong complied with this obligation at lunchtime on 7 August, some hours prior to the 3.00pm scheduled shift commencement.
The issue which arises is whether the additional request made of Mr Wong by Mr Popp, to also notify the head of the Kitchen Department and his then shift manager Ms Delaney of absences due to sickness was “unreasonable behaviour towards the worker” (s 789FD(1)) or, conversely, “reasonable management action carried out in a reasonable manner” (s 789FD(2)).
Characterising the request is relevant because whether it was a mere suggestion (that Mr Wong had a discretion to refuse) or, rather, an instruction (that Mr Wong was expected to comply with) may bear on reasonableness. Without being definitive (because circumstances of each case matter), it is less likely that a mere discretionary suggestion would be bullying conduct compared to an instruction or direction which carries the burden of compliance.
I do not find that Mr Popp’s request was a mere suggestion. I find that despite the words Mr Popp used, his text message to Mr Wong was a request expected to be complied with. Objectively, it was an instruction. Relevant to this finding is:
whilst Mr Popp used the phrase “do me a favour” as a prefix to stating what he wanted done, Mr Popp was aware at the time he messaged that Mr Wong had already complied with the DHS procedure. He wanted something more done;
the request came from Mr Wong’s regular manager, a person with authority over him; and
the request sought that Mr Wong do something connected to work.
That Mr Wong had already exercised a workplace right to take personal leave and complied with Skycity’s policy and protocol concerning the DHS hotline are material factors weighing against a finding that the additional request was reasonable.
Also weighing in favour of a finding that the request was unreasonable is that it required additional contact at a time when Mr Wong was unfit for work.
Also relevant, and weighing further in Mr Wong’s favour, is that Mr Popp could have himself contacted Ms Delaney, and that Skycity (and not Mr Wong) was responsible for the DHS system. To the extent that the system automated an absence notification to Mr Wong’s regular manager (Mr Popp) and not his temporary manager (Ms Delaney) was Skycity’s responsibility, not Mr Wong’s.
However, the request was made in circumstances where:
Mr Wong knew that he was at that time working in another department managed by Ms Delaney and not Mr Popp. To enable Ms Delaney to plan around employee absences, it was reasonable that she be informed if Mr Wong was to be absent from a rostered shift;
Mr Popp’s responsibilities did not always enable him to immediately identify and on-forward to other managers employee absences notified to him via the DHS system; and
the request of Mr Wong was capable of being complied with via a simple text message from him to Ms Delaney. That he could do so is evidenced by the seven text messages he sent to Mr Popp refusing to do so.
These considerations weigh somewhat against a finding that the request was, in context, unreasonable and that it was reasonable management action caried out in a reasonable manner. However, it remains the case that an instruction to Mr Wong to message Ms Delaney was unnecessary to enable orderly shift planning because Ms Delaney could have been alerted by Mr Popp directly.
Considered overall, Mr Wong has at least an arguable case that the request was unreasonable because it was accompanied by an expectation of compliance in circumstances where he had already exercised a workplace right. If required to make a finding on that point, I would so find despite the request having a rational basis.
However, there are two reasons why a finding of workplace bullying cannot be made.
Firstly, the conduct was not repeated. The request was only made once. Given that I have (below) found that subsequent conduct relied on by Mr Wong was not bullying conduct, I do not find that unreasonable conduct was repeated even if the alleged bullying conduct is considered collectively. There cannot be a finding of workplace bullying because s 789FD(1) requires unreasonable conduct to be repeated.
Secondly, s 789FD(1) requires a finding that the repeated conduct carried, in an objective sense, a risk to health and safety. Whilst the request of Mr Wong, even if unreasonable, clearly upset him (evidenced by his seven text responses in five minutes) there is no evidence to suggest that the conduct was sufficiently serious or impactful that it was likely to have that effect. The request was direct but politely communicated. Mr Popp was not provoked by and did not respond to Mr Wong’s reactions, or being told to himself “pls inform her”. That Mr Wong returned to work the next day, and worked uninterrupted for the following week, suggests that the request did not have that impact. Whilst Mr Wong went on stress leave a week later, that was after the 13 August meeting and likely a consequence of it and not simply the request made six days earlier.
Refusal to withdraw the allegation and cancel disciplinary meeting
Mr Wong submits that he was bullied by Skycity and Ms Quaziz when they convened, and then refused to cancel, the meeting on 13 August or withdraw the allegation.
I do not find that convening a formal meeting to consider the issue was, objectively considered, unreasonable. I observe though that it was only one of several reasonable options available to the employer.
For example, and at least in hindsight, it would have been equally, if not more, reasonable to have dealt with the matter less formally; such as by an off the record meeting between Mr Wong and Mr Popp mediated by the human resources department.
However, an assessment of reasonableness is to be made on the objective facts as they existed at the time, and not by reference to hindsight. Those objective facts were:
it was at the very least a lawful request by Mr Popp, and one made politely and without inflammatory language;
a refusal had been made been made by Mr Wong;
the refusal was to a person of seniority (his manager and departmental head);
the refusal had been communicated in a heightened manner (seven text messages in five minutes) which, even allowing for language differences, could reasonably be seen as an overreaction;
the refusal was accompanied by Mr Wong telling his manager that the manager should do what he had been asked to do; and
the refusal did not concern the relationship with Mr Popp only, it also concerned the relationship with Ms Delaney. In those responses Mr Wong indicated that he did not wish to have his contact details provided to Ms Delaney (despite her being his then shift manager) or to deal with her other than when he was on a rostered shift.
In the circumstances, and given that on at least one view (Mr Popp’s) a lawful and reasonable instruction had been refused, it was not unreasonable for Skycity to decide that the issue needed formal discussion and explanation. Without such, Skycity could not form a considered view on whether the refusal (by Mr Wong) was reasonable or in breach of his employment obligations. The first step in a disciplinary process in which an allegation is put and responded to serves that purpose, though was not the only option available.
In indicating to Mr Wong that disciplinary action was possible, Skycity was being transparent and procedurally fair. Skycity did not suggest that a disciplinary sanction was inevitable; it expressly indicated that this was “dependent upon the outcome of the process”.
Ms Moore communicated clearly to Mr Wong about the meeting. Ms Quaziz also made the effort to speak to Mr Wong prior to the meeting to attempt to clarify its purpose and allay his concerns. The meeting which occurred was orderly, involved attempts to de-escalate tension, allowed for an explanation to be put and was, in general, procedurally fair. I reject Mr Wong’s submission to the contrary.
I do not find that Skycity or Ms Quaziz bullied Mr Wong by refusing to withdraw the allegation or cancel the meeting.
Delay in advising disciplinary outcome
Mr Wong submits that that he was bullied by Skycity and Ms Quaziz because they delayed advising him of the outcome of the meeting for three weeks (13 August to 4 September).
In this three week period Skycity was not further investigating the matter; rather it was (in the first couple of days) considering its position and then (for the balance of the period) waiting for Mr Wong to return from personal leave.
I agree with Mr Wong that this was a lengthy period and one which likely contributed to his already anxious state. However, for most of this period (13 to 31 August) Mr Wong was absent on personal leave. It was not unreasonable for Skycity to not inform Mr Wong whilst he was on personal leave, particularly given that the very conflict concerned his resistance to communicating to a shift manager whilst he was on personal leave.
Whilst the four day period that then elapsed coincided with Mr Wong filing his application in the Commission and it being served on Skycity, it was not unreasonable for Skycity to advise its decision over this period.
I do however consider that Skycity could have better handled the communication had it provided the outcome (no action other than retaining the meeting record on file) to Mr Wong prior to filing its response in the Commission, and avoiding Mr Wong first reading the outcome via the employer’s response to a third party (the Commission).
Considered overall, I do not consider the delay in advising Mr Wong of the outcome of the meeting or its timing to have been bullying conduct.
Conclusion
I have not found that Mr Wong was bullied, as defined, by Skycity or Mr Popp on 7 August 2024 when Mr Popp required him, whilst on personal leave, to take an additional step to notify his absence to a shift manager Ms Delaney.
I have not found that Skycity or Ms Quaziz bullied Mr Wong by refusing to withdraw the allegation or cancel the 13 August 2024 meeting.
I have not found that Skycity or Ms Quaziz bullied Mr Wong by way of the delay in advising the outcome of the meeting or the timing of such advice.
There being no workplace bullying as defined, I am not required to consider whether there is a risk of continued bullying at work.
In those circumstances, I am unable to consider whether any order should be made under s 789FF.
It is apparent from my findings that whilst both Skycity, Mr Popp and Mr Wong faced a challenging and disputed situation, there are learnings on all sides.
I have observed in these reasons that other options were open to Skycity short of convening a formal meeting of potential disciplinary consequence to resolve the workplace conflict. I have observed that a request by a manager that an employee notify a different manager when absent on personal leave may be unreasonable if compliance has already occurred with existing policy and procedure. I have observed that it is Skycity’s responsibility, and not that of an employee, to ensure its automated sick leave notification system is calibrated as far as possible to the correct line manager. I have observed that the nature of an employee’s response to a manager’s request, including any overreaction, can impact the way that the response is viewed and reviewed by their employer.
That no disciplinary action was taken against Mr Wong, despite his refusal to comply with his manager’s request, because he had already exercised a workplace right in accordance with policy and procedure, may provide a basis for rebuilding the workplace relationship.
The application is dismissed. An order giving effect to this decision is issued in conjunction with its publication.[14]
DEPUTY PRESIDENT
Appearances:
M. K. Wong on his own behalf
C. Tannock, of and on behalf of Skycity Adelaide Pty Ltd and the persons named
Hearing details:
2024.
Adelaide (Video)
8 October
[1] A2 Attachment 8
[2] Ibid
[3] A2 Attachment 6
[4] A2 Attachment 9
[5] R2
[6] R3
[7] R3 page 1
[8] R3 page 2
[9] Ibid
[10] A2 Attachment 4
[11] F73 pages 8/11 and 6/11
[12] Mr Wong filed a reply in the Commission on 4 October 2024
[13] Email produced by Mr Wong post-hearing, with permission
[14] PR780264
Printed by authority of the Commonwealth Government Printer
<PR780263>
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