Application by Ms Y

[2021] FWC 6347

[2021] FWC 6347

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Application by Ms Y
(AB2021/321)

COMMISSIONER O’NEILL MELBOURNE, 16 NOVEMBER 2021

Application for an FWC order to stop bullying

[1] Ms Y has been employed by the Respondent School as the Human Resources Manager since December 2019. She has applied for an order to stop bullying in her workplace.

[2] Ms Y relies on 9 instances of what is alleged to be unreasonable behaviour to establish that she has been bullied by each of Mr B who is the Director Staff & Strategy, Mr M the Deputy Principal and Mr D, the Principal of the School. The alleged behaviour took place between September 2020 and April 2021.

[3] On 21 May 2021, Ms Y lodged a worker’s injury claim with WorkSafe Victoria (which was subsequently accepted). She was absent from work from 14 May 2021, until she started a graduated return to work on 7 October 2021.

[4] The Respondents submit the application should be dismissed because Ms Y was not subject to bullying, rather that the persons named took reasonable management action carried out in a reasonable manner.

Hearing

[5] I heard this matter on 5, 21 and 22 October 2021. At the hearing, Ms Y, the Respondent and each of the 3 persons named were legally represented, with permission.

[6] Ms Y provided three witness statements and gave evidence in person. Mr B, Mr M and Mr D gave evidence on behalf of the School and the persons against whom allegations of bullying have been made. A further witness, Ms D, gave evidence in support of the School in relation to one incident.

[7] At the hearing both parties requested an order, pursuant to section 594 of the Fair Work Act 2009 (Cth) (Act) to anonymise the name of the Applicant, other witnesses and people referred to, and the name of the School. I granted the application, finding that anonymising the names of the persons and School involved, but otherwise publishing reasons for the decision, struck the right balance between the interests of open justice and the potential harm of naming them. 1

Jurisdiction

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

[9] In order for the Commission to exercise its power under s.789FF of the Act to make any order it considers appropriate in respect of Ms Y’s application, there are three conditions that must be met:

(a) first, Ms Y must have made an application under s.789FC of Act;

(b) secondly, the Commission must be satisfied that Ms Y has been bullied at work by an individual or group of individuals; and

(c) thirdly, the Commission must be satisfied there is a risk that Ms Y will continue to be bullied at work by an individual or group.

Application

[10] I am satisfied that Ms Y is a worker, that she reasonably believes that she has been bullied at work and has made an application to the Commission for an order under s.789FF of the Act. Accordingly, I am satisfied that there is a valid application before the Commission.

What constitutes bullying? 2

[11] The second condition requires the Commission to be satisfied that Ms Y has been bullied at work by an individual or a group of individuals.

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

“(1) A worker is bullied at work if:

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

(i) an individual; or

(ii) a group of individuals; repeatedly behaved unreasonably towards the worker, or a group of workers of which the worker is a member; and

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

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

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

Repeatedly behaved unreasonably

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

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

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

[17] In Mac v Bank of Queensland, Vice President Hatcher provided the following examples of conduct “which one might expect to find in a course of repeated unreasonable behaviour that constituted bullying at work”:

“… intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim blaming and discrimination.” 3

Reasonable management action

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

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

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

…

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

112. Persons conducting a business or undertaking have rights and obligations to take appropriate management action and make appropriate management decisions. They need to be able to make necessary decisions to respond to poor performance or if necessary take disciplinary action and also effectively direct and control the way work is carried out. For example, it is reasonable for employers to allocate work and for managers and supervisors to give fair and constructive feedback on a worker’s performance. These actions are not considered to be bullying if they are carried out in a reasonable manner that takes into account the circumstances of the case and do not leave the individual feeling (for example) victimised or humiliated.” 4

[20] The expression “management action” is not confined only to managerial decisions but encompasses a wider range of conduct or behaviour which affects an employee, including such things as performance and disciplinary matters, the allocation of work and the way in which work is to be carried out. 5

[21] To determine whether the action constitutes “reasonable management action” it is necessary to undertake “an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time”. 6

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

“In general terms this is likely to mean that:

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

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

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

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

•  consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances.” 7

[23] The question of whether placing a worker on a performance improvement plan (PIP) constituted “reasonable management action” for the purposes of s.789FD(2) of the Act, was considered by Vice President Hatcher in Mac v Bank of Queensland. In that case, the applicant, Ms Mac, argued that the managerial decision to impose, and continue to impose, a Performance Improvement Plan on her, was not reasonable management action because the shortcomings in her performance had not been sufficiently serious to justify that decision being made. 8 In assessing the reasonableness of this managerial decision, Vice President Hatcher did not attempt to form his own judgment as to whether Ms Mac’s overall performance was satisfactory, explaining:

“… I do not consider that an assessment of whether the imposition of the PIP on Ms Mac was unreasonable requires the Commission to engage in the process of attempting to form its own judgment as to whether her overall performance was satisfactory or not and to substitute its judgment for that of the relevant BOQ managers and supervisors. Even if a different and better opinion of Ms Mac’s work performance could legitimately be formed on the evidence before me, that would not be sufficient to show that the decision to introduce the PIP was unreasonable. What is necessary is for Ms Mac to demonstrate that the decision to introduce the PIP lacked any evident and intelligible justification such that it would be considered by a reasonable person to be unreasonable in all the circumstances.”  9 (emphasis added)

[24] I agree with this approach and adopt it in considering this application.

Witness Credibility

[25] A significant part of what took place is not disputed. In the main, the contest is whether the conduct constitutes bullying. There are however several direct conflicts in the evidence, and I must form a view about what occurred. That requires me to make an assessment between conflicting evidence from the witnesses.

[26] Overall, I found Ms Y to be a genuine witness. She gave very considered, precise and consistent evidence. She steadfastly maintained the truthfulness of her evidence in extensive cross-examination. At the same time, she was reluctant to concede matters. For example, when being cross-examined about an issue relating to the onboarding of an employee, she did not accept that her email to Mr B was critical or rude, or that she was being at all critical of him, where on its face, it was both. 10 In the main, I do not think she was doing so to be disingenuous, rather that it reflects a highly structured and somewhat inflexible way of thinking.

[27] Without hesitation I found each of Mr B, Mr M and Mr D to be honest, credible, and impressive witnesses. Each was thoughtful and considered. They were not defensive and agreed to many propositions put to them by counsel for the Applicant. For example, Mr B volunteered that he was frustrated with Ms Y over her refusal to undertake the volunteer program. Where their evidence traversed the same issue, it was broadly consistent both in witness statements and cross-examination. Their witness evidence was also consistent with and supported by emails and other documents in evidence. Mr B’s demeanour, both as a witness and as the author of many emails to Ms Y in evidence, was reflective, polite, appreciative, and respectful.

[28] Where there is a direct conflict between the evidence of Ms Y and the persons named, I have preferred the evidence of Mr B, Mr M, Mr D and Ms D.

[29] As I explained earlier, the question of whether Ms Y was bullied is an objective test. It is not sufficient that Ms Y genuinely believes that she has been subjected to bullying behaviour, or genuinely felt belittled or unvalued. I need to assess whether the conduct, if satisfied it occurred, viewed objectively, was unreasonable having regard to all the circumstances.

Was Ms Y bullied at work?

[30] Ms Y relies on the 9 instances of alleged unreasonable behaviour set out below.

1. The Synergetic Software training issue

[31] Around April 2020, Ms Y was required to work on the Synergetic Staff Kiosk. She had not used it before and felt that she required training to be able to use it effectively. On 3 September 2020 she emailed her supervisor, Mr B to this effect, however Mr B did not respond.

[32] Ms Y’s evidence is that she asked Mr B again about the training on 9 September 2020 where, after a meeting with the IT team, she said to him “We now come to appreciate the technicality and the complexity of the system. Can I please go for this training?” She says that Mr B did not answer her and just gave her a blank look. On 16 November 2020 after a demonstration of the system, Ms Y says that she said to Mr B “now you understand that it’s even better now the prototype of that system that I have engaged in and I am going to be the administrator. Can you please look into my request?” She says Mr B again gave her a blank look and walked away. Ms Y does not suggest that on either occasion she mentioned the earlier email request that Mr B had not responded to. 11 Ms Y says that she felt unvalued and unimportant and that she was being targeted by Mr B so as to make her duties more difficult to perform.

[33] Mr B does not recall receiving Ms Y’s original email request and denies that she made further requests for the training on 9 September and 16 November. He says that he overlooked the email and that this was a mere oversight, in the context of receiving around 100 emails per day.

[34] Mr M’s evidence is that in December 2020, Ms Y raised with him the issue of Mr B not responding to her original email request, however she did not make any mention of the subsequent requests she says she made. 12

[35] I accept Mr B’s evidence that he overlooked the email request of 3 September, and I find that that this was not unreasonable behaviour. Overlooking a single email in the context of receiving a large number is unremarkable and, when it occurs, it is not unusual for senders to follow-up with a reminder email. Ms Y could have done this.

[36] There is a direct conflict in the evidence of Ms Y and Mr B about whether two further requests were made. I do not find that Ms Y made the further requests to Mr B on 9 September and 16 November. I consider it unlikely that had such requests been made, Mr B would not have responded at all, stared blankly and walked away. Mr B’s evidence is also consistent with Mr M’s evidence, where when Ms Y raised with him Mr B’s non-response to her email request, she made no mention of having made subsequent requests. I consider it to be more likely that either Ms Y’s recollection of what was said was inaccurate, or that if she did say something to Mr B, it was not a clear request for him to approve her undertaking the training.

2. The School Leadership Framework issue

[37] Ms Y’s and Mr B’s account of this incident are entirely different in important respects.

[38] Ms Y’s evidence was that around July 2020 she spent a considerable amount of time and effort developing a school leadership framework. She provided a draft to Mr B and Mr M on 31 August 2020. Her efforts were acknowledged both by the then Principal, Mr H, and Mr B. Mr B applauded her for her ‘initiative and hard work’. 13 Ms Y asserts that at a meeting with Mr B on 12 November 2020, he told her that he would present it on her behalf at the upcoming strategic planning day. Based on this, she prepared a PowerPoint presentation for him. When she followed up after the planning day, Mr B told her he didn’t present it because he didn’t have enough time and used his allotted time to present his own work. This made her feel unvalued, humiliated, and unsupported.

[39] Mr B denies that he agreed to present the Applicant’s work at the strategic planning day or any other forum. Instead, he says that as part of a project Mr M had instructed him to undertake – to set up a Middle Leaders Appraisal Program – he had asked Ms Y to reach out to her contacts in human resources at other schools for relevant information. This request was sent by email. 14 Mr B says that instead she contacted deputy principals at other schools and subsequently arranged meetings with other schools and organisations, which Mr B considered were unprofessional and embarrassing.15 In short, the framework had never been requested and was not what she had been asked to do. Mr B was not on the agenda to present anything at the strategic planning day, and he did not do so. Mr M’s evidence on this issue corroborates Mr B’s. After Mr B told Ms Y that the framework was not what he had asked for and was not part of the Strategic Plan, she nonetheless forwarded it to the new Principal in January 2021, Mr D. This caused some tension between them.

[40] I accept Mr B’s and Mr M’s evidence in relation to this issue and find that Mr B was not on the agenda to present at the strategic planning day and did not do so. Their evidence as to what occurred is consistent with the documentary evidence 16 and Ms Y’s recollection as to what occurred is improbable in the circumstances. I find that Mr B did not undertake to Ms Y that he would present the framework to the strategic planning day or that he later told her that he didn’t do so because he used his time to present his own work. Mr B’s actions were reasonable management action carried out in a reasonable manner.

3. The Strategic Improvement Plan issue

[41] On 9 February 2021, Ms Y emailed Mr B to ask if she could review his version of the Strategic Improvement Plan, that she contends they had been working closely together on developing. There was some confusion as to whether the document in question was a strategic improvement plan or an annual action plan. Mr B sent her a screenshot of a portion of the document, which was blurry and unintelligible. Ms Y made further requests for the document, but Mr B did not provide it. Ms Y asserted that she needed the document to perform her role, however the basis for this was not made clear. Ms Y contends that she was given no explanation why it was not provided.

[42] Mr B’s evidence was that it was not his document, it sat with the Deputy Principal. 17 He was unsure whether he could send the annual action plan to Ms Y because it was incomplete and likely to change and was a document usually reserved for leadership staff only. That is why he sent her a screenshot of the relevant section relating to HR and culture. Mr B’s evidence is that he discussed with Ms Y that he would provide a document with the relevant HR information.18

[43] Counsel for Ms Y submitted that it was unreasonable to ignore Ms Y’s request for something she considered important to perform her role, and that if there was a reason for not doing so, it was not conveyed to Ms Y. There was no evidence that not having the document meant that Ms Y was unable to perform part of her role.

[44] I accept Mr B’s evidence as to why he did not provide the full document to Ms Y and that he discussed the issue with her. Given that Ms Y was not a member of the senior leadership team, was not entitled to the document, and that Mr B had agreed to provide relevant information to her, I consider Mr B’s decision to not provide the particular document to Ms Y was not unreasonable behaviour.

4. The Staff Wellbeing Presentation issue

[45] Around the end of October 2020 Ms Y decided to prepare a PowerPoint presentation on staff wellbeing which would be available via Microsoft Teams and include a message from the then Principal, Mr H.

[46] Ms Y’s evidence is that on 11 November 2020, Mr H advised her that he was willing to provide a short video message to include in the presentation and would schedule the filming on 24 November 2020 to do so. However, the calendar entry for the filming of Mr H’s message was subsequently cancelled and not rescheduled. In a discussion with Mr B on 24 November 2020, Ms Y says that he told her that he did not support the presentation but provided no reasons for his view and asked her in what she considered to be a hostile tone, why she had prepared it. Ms Y said that she took the initiative to do so because it was part of her role. Ms Y was hurt and confused, and she believed that Mr B was instrumental in cancelling the meeting with Mr H, and was acting vindictively. 19

[47] Mr B’s evidence is that on 24 November 2020 he explained to Ms Y why he did not support the presentation. He considered the presentation unsuitable because: it had never been raised or discussed at Staff Wellbeing Committee meetings, which Ms Y is a member of; that rolling out another video presentation was not suitable at that time as the School had just come out of an extended period of remote learning using Microsoft Teams; that the content had already been seen by staff as it was drawn from the School’s Twitter pages, and that Mr H had recently given a staff wellbeing presentation to all staff. He also told her that the Staff Wellbeing Coordinator and the Director of Marketing also considered it unsuitable. He says that in a calm and clear manner he thanked Ms Y for her efforts and denies addressing her in a hostile tone. He says that Ms Y became upset during the discussion when he made it plain that her presentation would not be used. 20

[48] Mr M also gave evidence that the quality of the presentation was not high, and that he shared Mr B’s view that another online presentation for staff, in the circumstances, was inappropriate. Mr M also gave evidence that Mr H had told him that he cancelled the scheduled filming on 24 November 2020, as the meeting had been scheduled by his assistant, and when he found out what it was about, he did not see it as relevant. 21

[49] Counsel for Ms Y submitted that it was unreasonable to cancel her presentation by removing the appointment to film the introduction, in circumstances where no reason was conveyed to her for this. In the alternative it was submitted that the manner in which it was conveyed to Ms Y was unreasonable, in that she simply had the matter deleted from her calendar and there was no discussion about how her work might be used. The cancellation of the filming was said to be one of a series of actions that formed the decision to cancel the presentation without any suggestion as to how Ms Y might approach it differently. 22

[50] Both Ms Y and Mr B agree that the presentation was discussed in a one-on-one meeting on 24 November 2020. They disagree as to Mr B’s tone and demeanour and the level of explanation provided by Mr B as to why the presentation would not be used. I prefer Mr B’s evidence as to what occurred, and I find that he did provide Ms Y with an explanation of why he did not support the presentation, and that he did not become hostile when doing so. Mr B’s evidence is consistent with Mr M’s evidence as to the suitability of the presentation. I find it likely that Ms Y was upset and as a result, perhaps did not absorb the full details of what he said to her.

[51] I find that Mr B’s decision to not support the presentation and his explanation to Ms Y was both reasonable and appropriate conduct as her direct manager. I find that he played no role in the cancellation of the filming of Mr H’s planned introduction. I am not satisfied that this constituted an incident of bullying.

5. Exclusion from Staff wellbeing meetings

[52] In late 2020, Ms Y became aware she was being excluded from regular staff wellbeing meetings between Mr B and the Staff Wellbeing Coordinator. She met with Mr B to understand why she was being excluded. She says that Mr B told her that it was because Mr M had instructed him to and provided her with no reason for that instruction. 23

[53] However, Mr B’s evidence is that when he commenced in the role of Director of Staff and Strategy in March 2020, he was not aware that Ms Y was entitled to attend these meetings. There were two meetings, one on 24 April and one on 8 May 2020 which were held offsite and online. He did not intentionally exclude Ms Y, and as soon as he became aware of it in about August 2020, he apologised to her in a human resource team meeting and immediately invited her to attend the meetings. Up until this point neither Ms Y nor the Staff Wellbeing Coordinator had informed him that she was entitled to attend these meetings. His evidence was that he was responsible for the error, and that he never said Mr M had told him to exclude her, and Mr M had never said this to him. 24 Mr M confirms that Mr B told him about his oversight, and that he had never instructed him to exclude Ms Y from the meetings, and he had never turned his mind to the matter.25

[54] I find that there was no intent to exclude Ms Y from attending the two staff wellbeing meetings on 24 April and on 8 May 2020. Mr B was still new to the role, and no-one had told him that she was entitled to attend. If Ms Y had been excluded from attending over a longer period of time, at some point it may have become unreasonable, as it would be somewhat surprising that the HR Manager did not participate in staff wellbeing meetings and warrant Mr B making enquiries. However, when the matter was drawn to his attention, he rectified it immediately and apologised. In the circumstances, I do not consider it was unreasonable.

[55] I consider it inherently improbable that Mr B told Ms Y that he had been instructed to exclude Ms Y from the meetings, and to that extent I prefer Mr B’s evidence on that point.

6. Undermining staff recruitment responsibilities

[56] The sixth instance of alleged bullying relates to Ms Y’s assertion that on a number of occasions Mr B undermined her authority by directly contacting the School’s external recruitment agency. Ms Y asserts that this was her responsibility as part of overseeing and managing recruitment processes. Whilst Ms Y asserts that this behaviour occurred on a number of occasions, only one instance – relating to the recruitment of a visual arts teacher - was detailed. Mr B advised the agency in an email that Ms Y was copied into, that the relevant offer of employment was on a full-time and not a part-time basis, as Ms Y had originally been advised. 26 Ms Y then emailed the agency representative and Mr B advising that “At my end I received conflicting information and not being kept in the correspondence. Hence I already asked Peter and you to keep me in the communication loop to ensure we are all on the same page.” Mr B considered this response to be unprofessional and emailed her saying “Could we present a united and team front particularly dealing with outside agencies and externals. I do not think this is a good reflection on either of us.”27

[57] Mr B’s position was that as the senior manager ultimately responsible for staffing at the School, it was incumbent on him to maintain relationships with the agency, and in this particular case, there was some urgency involved. His evidence was that he did not contact the agency to embarrass or humiliate Ms Y, but to ensure that urgent time parameters were met.

[58] Ms Y maintains that in directly contacting the agency without informing her, Mr B deliberately set out to undermine, humiliate and embarrass her. 28

[59] The contact with the agency by Mr B was not unreasonable, nor unusual in the circumstances, and I accept Mr B’s evidence that he had no intention to embarrass Ms Y. Viewed objectively, the contact was reasonable and appropriate. I also consider that Ms Y’s reaction, and her communication to the external party saying she had received conflicting information and was not being included in correspondence, was unprofessional and did not reflect well upon her.

[60] It does not constitute bullying.

7. Recruitment of a Casual Employee

[61] The seventh alleged incident related to Ms Y being directed to issue a contract to a former casual employee, who was being employed to assist with an upcoming overnight school camp. The employee had last worked at the School in 2019 and had provided a National Police Check (NPC) at that time. He also held a current Working with Children Check. Extensive witness and documentary evidence was given, and the facts and interactions between the persons involved are largely not in dispute. 29

[62] In short, there was a disagreement as to whether the person was a new employee. New employees are required to provide a National Police Check. Police checks for existing employees are considered current for a 5-year period.

[63] Ms Y was originally asked to onboard the employee on 19 February 2021 by the Coordinator of Outdoor Education. There was some evidence that Ms Y had given the Coordinator conflicting information about the requirements.

[64] Following various exchanges, on 12 March 2021, Mr B asked Ms Y to onboard the employee. Ms Y refused to do so, partly based on advice from the Compliance Officer that each NPC only had a currency of six months. Ms Y’s view was that the person needed to obtain an updated police check.

[65] Mr B’s evidence was that he was satisfied that onboarding the employee was not a child safety risk, in circumstances where it was a returning staff member with a reasonably recent police check. The employee was needed urgently for the camp and without him the School would fall short of the government mandated ratios for staff/students for camps and excursions, itself a child safety consideration.

[66] Mr M’s evidence was that he spoke to Mr B about the issue, that they checked the School’s policies to ensure that they were complying with its child safety obligations, which they were, and he directed Mr B that a police check was not required on this occasion. 30

[67] On 15 March 2021, Mr B emailed Ms Y stating that the decision to onboard the employee sat with him, and that whilst he “appreciate[d] your due diligence, attention to detail and focus on child safety protocols. due to the context of this situation … I have made the decision to approve the onboarding of [the employee]. I can speak with you in more detail when we meet.” 31

[68] However, Ms Y’s response was to maintain her view that an updated police check was required. 32. Her email included: “It seems to me now that you didn’t communicate with Brent and just conveniently ask HR to issue contract knowing that the police check is dated Jan 2019.”33

On 16 March 2021, Mr B again emailed Ms Y reiterating that the employee was a ‘returning’ and not a ‘new’ employee, and that it was not Ms Y’s decision to make to refuse to issue the contract and that the delay was placing student safety at risk. He went on:

“I do not believe this is your intent however I find your email rude and disrespectful, and am very disappointed with your statements. Please do not reply to this email and when we have our next HR meeting I am happy to discuss. For the third time, could you please issue the contract to [the employee] as soon as possible?” 34

[69] Ms Y’s response to this was to email Mr B and Mr M on 17 March 2021 with:

“Hi [Mr B] and [Mr M]

I feel manhandled by [Mr B] with his statement of repeatedly using his position, it comes across to me as arrogant. I wish to highlight that this manhandling manner of me has been ongoing for a period of time, including incidents that I emailed to [Mr M’s] attention on 9 December 2020.

For [Mr B] to email me with a statement that my email is rude and disrespectful, without considering my difficulty in meeting my role responsibility, is unsupportive.

Being in such a state, I would like to ask for a meeting with [Mr M] or a neutral party to review the matter.

I would like to be excused from any meeting with [Mr B] as mentioned by him in his below email. I fear to be manhandled by him again.” 35

[70] In cross-examination Ms Y continued to maintain that Mr B did not have the authority to issue a direction to implement a decision in relation to a staffing matter, because it was against the overarching policy of the School. Indeed, Ms Y’s evidence was that if Mr B did not comply with a policy to the very letter, he was misusing his power. 36

[71] Ms Y ultimately issued the contract on 17 March 2021.

[72] Counsel for the Applicant submitted that issuing the direction was unreasonable behaviour because it related to a policy directed at child safety and it was contrary to Ms Y’s advice as a senior human resource professional. In the alternative, it was submitted that the direction wasn’t given in a reasonable manner as there were inadequate attempts to understand her position and she was given no rational basis for the direction. 37

[73] In my view, Ms Y’s belief that the School’s policy was the ultimate, immutable authority on the issue which overrode any authority of the senior executives of the School, was not reasonable, especially for a person at such a senior level. It was consistent with her approach towards her role and responsibilities in other respects. For example, her reliance on the precise language in her position description (regarding onboarding of ‘volunteers’ not being in her role because her position description stated ‘employees’) reflected a similarly inflexible and uncompromising approach that is at the heart of much of the conflict and tension between her and Mr B.

[74] In all the circumstances, I do not consider that the direction to issue a contract and onboard the employee was unreasonable. As a professional and senior employee Ms Y initially acted appropriately in raising her concerns. However, both Mr B, and later Mr M and Mr D, explained to her that they did not consider it necessary for new police check to be obtained, and that if there were any problems, Ms Y would not be held to account. Further, it was not unreasonable for Mr B and Mr M to decide that the onboarding of the employee was appropriate, they had the authority to do so, and exercised that authority reasonably. The direction to Ms Y was reasonable, however Ms Y’s continued refusal to follow it was not.

8. The Volunteer Program issue

[75] The facts relating to the volunteer program issue are largely uncontested.

[76] On 30 April 2021 Mr B instructed Ms Y to take over and oversee the School’s volunteer program, and to attend a handover meeting on 4 May 2021. Overseeing the program involved Ms Y being responsible for the onboarding of volunteers.

[77] Ms Y’s understanding was that this was the responsibility of the Compliance Officer and was outside her position description. Her position description included responsibility for employees but did not specifically state that this included volunteers. She told Mr B this, and that she could not oversee the program as she was under-resourced and over-worked. She would however attend the handover meeting so that she could better understand the program, but not to oversee it. 38

[78] Mr M’s evidence was that historically the program had been managed by Human Resources. Ms Y’s predecessor had been tasked with reviewing the volunteer program but left without it being done. As Ms Y was new to the role, he asked the Compliance Manager to review it from a compliance perspective, with the intention that the actual onboarding would be again undertaken by the HR Manager. 39 A casual employee was engaged who had prepared the documentation and processes for onboarding, and it was her last day on 5 May 2021.40 Mr B arranged a handover meeting with Ms Y before the casual employee finished.

[79] When she was sent a meeting invite for the handover meeting, Ms Y declined it. Mr B called her and said that it was part of her role and she needed to attend. Mr B’s evidence is that Ms Y said that “she would not be taking over the program and that she was taking a stand.” Mr B was taken aback at Ms Y’s refusal to carry out what he considered a reasonable direction. 41 He also emailed her saying he was disappointed that she had declined the meeting invite and explained that he had been directed by Mr M and another senior employee that she was to attend the handover meeting.

[80] Ms Y responded on 4 May 2021 saying that she felt intimidated and bullied by Mr B, Mr M, and another employee because of their persistent unreasonable request for her to attend the meeting and oversee the program. When Mr B sent a further meeting invite on 5 May 2021, Ms Y again declined it.

[81] On 4 May 2021, a meeting between Ms Y, Mr D, Mr M and Mr B took place. The Principal, Mr D, raised Ms Y’s failure to follow the direction to take over the onboarding of volunteers, and told her that she was to follow Mr B’s directions. Mr D offered to assist Ms Y with her workload and suggested she make a list of the tasks she was working on so that they could discuss what could be reallocated. In response, Ms Y accused the Principal of “victim blaming”. 42

[82] Counsel for the Applicant submitted that there was no meaningful attempt to resolve the substantial issues and workload. The Principal’s suggestion was submitted to be just “tinkering around the edges”. 43

[83] Ms Y also contended that the School was obliged to consult with her on this issue under the terms of the enterprise agreement. Counsel for the Applicant submitted that clause 9.2(a) of the agreement required the School to establish a mechanism to ensure fair workload, and under subclause (b) to not have an unfair unreasonable or excessive workload. Counsel submitted there was no evidence that a mechanism was in place or used and in the alternative, clause 9.2(b) applied. Whilst not a great deal of reliance was placed on this submission it does not appear to me that the School was obliged under the enterprise agreement to undertake consultation with Ms Y about the issue.

[84] I do not consider that the onboarding of volunteers was outside Ms Y’s responsibilities. The distinction between onboarding employees which is clearly in her position description, and onboarding volunteers is not substantial. I find that the direction to Ms Y to oversee the program was reasonable in the circumstances. Whilst Ms Y’s concerns about the impact on her workload were no doubt legitimate, the evidence was that on several occasions additional support had been made available to her. Further the Principal had indicated an openness to address any such concerns, but Ms Y rebuffed him in strong and impolite terms.

8A. Alleged intimidating confrontation regarding the volunteer program

[85] Perhaps the most serious allegation made by Ms Y is about a conversation between her and Mr B on 30 April 2021. The parties agree that there was a discussion in the corridor outside a conference room following the end of a meeting they had both attended. According to Ms Y, she was reduced to tears because Mr B repeatedly told her, ‘in an extremely hostile manner’, 44 that she had to attend the handover meeting about the volunteer program. Mr B’s evidence is that he approached Ms Y and calmly asked her if she could attend the handover meeting as it was the casual employee’s last day. According to Mr B, Ms Y ‘raised her voice and looked at him in an angry way’.45 Mr B says that he neither berated nor harassed the applicant.46 He disputes that Ms Y was in tears and says that he was simply asking her to complete a task that was within her role.47

[86] The only other evidence about this exchange was from Ms D. 48 Ms D came past to remind Mr B that he was running late for his next meeting. She witnessed little of the exchange, and Ms Y disputes her account. However, her evidence was that whilst it was obvious that Mr B and Ms Y were having a very serious discussion, Mr B appeared calm and not frustrated or angry, and she did not hear him raise his voice. Ms Y looked agitated to Ms D, appeared to be upset and was talking more loudly than Mr B. She did not recall Ms Y crying, and Mr B did not seem angry, but rather a little bewildered and in shock. Ms Y looked visibly upset/agitated. Based on what she had seen, she said words to the effect “it looked like [Ms Y] was bullying you”.49 I accept Ms D’s evidence regarding her observations of the demeanour of Ms Y and Mr B.

[87] There is insufficient evidence to support a finding that Mr B behaved inappropriately or unreasonably. I find that there was perhaps a tense exchange and disagreement, but I am far from satisfied that Mr B either physically intimidated or spoke in a hostile manner to Ms Y.

[88] Counsel for the Applicant submitted that if there was insufficient evidence to justify a finding that there was a hostile, aggressive or intimidating tone or stance used by Mr B, it was unreasonable to approach Ms Y to discuss this in a corridor, when he knew it was a sensitive subject and one that he had conceded he was frustrated about.

[89] In circumstances where Ms Y had refused a direction to oversee the volunteer program and time was of the essence, I do not consider that it was unreasonable for Mr B to take the opportunity to again calmly ask Ms Y to attend the handover meeting.

9. The Suspension

[90] The final alleged instance of unreasonable behaviour is said to be that Ms Y was suspended from her employment on 3 June 2021. It was not clearly articulated how any such suspension constituted unreasonable behaviour and the Respondents deny that Ms Y was, in fact, suspended. The submissions focused on the revocation of Ms Y’s access to her work email account and the direction from the School that she remained at home on full pay and that she attend an independent medical examination. 50 Ms Y’s evidence included that she believed she was suspended because she had raised with Mr M various concerns about Mr B. These related largely to the 7^th allegation of unreasonable behaviour (recruitment of the casual employee), and Ms Y’s belief that Mr B had acted unreasonably, and that she felt bullied by and fearful of him.51

[91] Ms Y met with Mr M on 18and 22March 2021. When she was dissatisfied with Mr M’s response, she escalated her concerns and met with the Principal, Mr D, on 30April 2021. She said she was finding it difficult to work with Mr B and sought an investigation into Mr B’s “repeated unreasonable conduct …. his non-compliance of child safety obligations …. and misuse of supervisory power…” 52 On 5 May 2021, Ms Y emailed a further request for a workplace investigation to the Principal, and a further email on 13May.

[92] Mr D’s evidence is that by mid-May 2021, he had formed the opinion that Ms Y was not performing to the level required and that there was a real and emerging issue with her attitude and conduct. He considered her behaviour had become a disciplinary issue that needed investigating. He decided it was appropriate to offer Ms Y an opportunity to decide whether she wanted to continue at the School, and whether she wanted to leave on mutual terms. From Mr D’s perspective, Ms Y was clearly not happy with management at the School and he and Mr B were struggling with managing her. 53

[93] Mr D arranged for a without prejudice letter to be prepared, which Mr M handed to Ms Y on 13May 2021. The letter advised that the School had concerns about Ms Y’s conduct and that it intended to deal with these issues prior to arranging an investigation of Ms Y’s concerns. It provided two options, with the alternative involving Ms Y resigning. 54

[94] Ms Y’s evidence is that this was the first time that any performance or conduct issues had been raised with her. Mr M gives evidence to the contrary. 55 I accept Mr M’s evidence, and in addition, I consider that it should have been clear to Ms Y by this point, including from multiple emails and from the meeting with Mr D, Mr M and Mr B on 4 May 2021, that there were significant issues with the way she had been interacting with Mr B, for example in not following his direction to engage the casual employee.

[95] Receiving the letter greatly distressed Ms Y, and she admitted herself to hospital that evening. She subsequently lodged a workers’ compensation claim and was off work. 56 Her claim form included that she faced workplace bullying, that she was issued a letter that she consider resigning or face disciplinary actions, and that she was “suffer[ing] psychological injury with suicidal thoughts” and was “traumatised by the incident” and attended a hospital emergency department for assistance.57

[96] On 27 May 2021, her work email access was suspended. 58 Mr M’s evidence was that this was done so that she would not feel the need to undertake work while she recovered on workers compensation.59

[97] On 31 May 2021, Ms Y provided a certificate of capacity for a partial return to work - working from home. Ms M’s evidence was that the School did not consider that it had been provided with sufficient information to fulfil its health and safety obligations. The Applicant was referred to an independent medical examination on 3 June 2021. However, she refused to do so. She lodged two applications with the Commission and made complaints to WorkSafe Victoria in June and July 2021. 60

[98] Ms Y started a graduated return to work on 7 October 2021.

[99] I have no doubt that Ms Y was seriously unwell after receiving the 13May letter. However, viewed objectively, I am satisfied that the letter, the subsequent suspension of her email access, and the direction to attend an independent medical examination, were all reasonable actions in the circumstances.

Conclusion

[100] I accept that Ms Y has been genuinely highly distressed and gravely affected by her perception of what occurred. However, the legislation requires that I focus on the reasonableness of the relevant conduct, rather than Ms Y’s subjective perception of it.

[101] For the reasons set out above, I am not satisfied that the incidents raised by Ms Y, considered either individually or collectively, involved unreasonable behaviour by any of the persons named. I find that Ms Y has not been bullied within the meaning of s.789FD of the Act. I therefore do not have the power to make any of the orders sought by her, and her application is dismissed.

[102] I am conscious that this decision leaves the parties to now consider the best way forward, in circumstances where there has been a significant breakdown in the relationship between Ms Y (herself a senior employee) and the most senior leaders at the School, and where the School has foreshadowed that it is considering taking disciplinary action against Ms Y. I encourage the parties to engage in discussions to resolve any outstanding matters in an informal way.

COMMISSIONER

Appearances:

G Cafarella of Counsel for the Applicant.
N Harrington of Counsel for the Respondent.

Hearing details:

2021.
Melbourne (by video):
October 5, 21, 22.

Printed by authority of the Commonwealth Government Printer

<PR735800>

 1   Transcript PN2511-2562 (22 October 2021).

 2   Much of the summary below of the legislation and case law is taken from the helpful overview set out by Deputy President Saunders in Application by Poh Keng Chang [2019] FWC 3178.

 3   [2015] FWC 774 at [99].

 4   Explanatory Memorandum to the Fair Work Amendment Bill 2013.

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

 6   Re GC[2014] FWC 6988 at [47].

 7   Re SB[2014] FWC 2104 at [51].

 8   Mac v Bank of Queensland Limited[2015] FWC 774 at [101].

 9 Ibid at [102].

 10   Transcript PN553-559 (5 October 2021).

 11   Transcript PN1208-1209 (21 October 2021).

 12   Exhibit R5, Witness Statement of Mr M, para 24 (Digital Hearing Book (DHB) p 206).

 13   Exhibit A2, Witness Statement of Ms Y in reply, para 6 (DHB p 252).

 14   Exhibit R6, Witness Statement of Mr B, Annexure 1 (DHB p 234).

 15   Exhibit R6, Witness Statement of Mr B, para 32 (DHB p 224).

 16   Exhibit R6, Witness Statement of Mr B, Annexures 1-3 (DHB pp 234-236, 238).

 17   Transcript PN1893 (21 October 2021).

 18   Transcript PN1889 (21 October 2021).

 19   Exhibit A1, Witness Statement of Ms Y, paras 44-50 (DHB pp 75-77).

 20   Exhibit R6, Witness Statement of Mr B, paras 47-54 (DHB pp 226-227).

 21   Exhibit R5, Witness Statement of Mr M, paras 33-36 (DHB pp 207-208).

 22   Transcript PN2256-2259 (22 October 2021).

 23   Exhibit A1, Witness Statement of Ms Y, paras 53-56 ( DHB pp 77-78).

 24   Exhibit R6, Witness Statement of Mr B, paras 55-61 (DHB p 227).

 25   Exhibit R5, Witness Statement of Mr M, paras 37-39 (DHB p 208).

 26   Exhibit R6, Witness Statement of Mr B, Annexure 5 (DHB p 244).

 27   Ibid.

 28   Exhibit A2, Witness Statement of Ms Y in reply, para 10 (DHB p 254).

 29   See for example, Exhibit A1, Witness Statement of Ms Y, Annexures 12-13 (DHB pp 130-137).

 30   Transcript PN1474 (21 October 2021).

 31   Exhibit A1, Witness Statement of Ms Y, Annexure 12 (DHB pp 130-131).

 32   Ibid.

 33   Ibid.

 34   Ibid.

 35   Ibid.

 36   Transcript PN582-603 (5 October 2021).

 37   Transcript PN2208-2219 (22 October 2021).

 38   Exhibit A1, Witness Statement of Ms Y, para 98 (DHB p 86).

 39   Transcript PN1347-1351 (21 October 2021).

 40   Exhibit R6, Witness Statement of Mr B, para 90 (DHB p 232).

 41   Ibid para 89.

 42   Exhibit R7, Witness Statement of Mr D, para 22 (DHB p 187).

 43   Transcript PN2235-2236 (22 October 2021).

 44   Exhibit A1, Witness Statement of Ms Y, para 103 (DHB p 87).

 45   Exhibit R6, Witness Statement of Mr B, para 91 (DHB p 232).

 46   Ibid.

 47   Ibid para 93.

 48   Exhibit R8, Witness Statement of Ms D.

 49   Ibid para 10.

 50   Exhibit A1, Witness Statement of Ms Y, paras 123 – 128 (DHB pp 90-91).

 51   Ibid para 87 (DHB pp 84-85).

 52   Ibid para 89 (DHB p 85).

 53   Exhibit R7, Witness Statement of Mr D, paras 34-37 (DHB pp 189-190).

 54   Exhibit R1.

 55   Exhibit R5, Witness Statement of Mr M, para 73 (DHB p 212).

 56   Transcript PN964 (5 October 2021).

 57   Exhibit A1, Witness Statement of Ms Y, Annexure 19 (DHB p 153).

 58   Transcript PN934 (5 October 2021).

 59   Exhibit R5, Witness Statement of Mr M, para 79 (DHB p 213).

 60   Transcript PN1049-1051 (5 October 2021).