Application by Poh Keng Chang
[2019] FWC 3178
•8 MAY 2019
| [2019] FWC 3178 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Application by Poh Keng Chang
(AB2018/695)
DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 8 MAY 2019 |
Application for an FWC order to stop bullying – applicant not bullied at work – application dismissed.
Introduction and background
[1] Located within the East Maitland Bowling Club is the Billabongs Restaurant. It is a buffet style restaurant where patrons can select food from a range of stations, including grill/bbq, Asian, sushi, soup and carvery, pizza and pasta, seafood and salad. The Billabongs Restaurant is owned and operated by Billabongs Restaurant Pty Ltd (Billabongs). Mr Jimmy Po is the managing director of Billabongs. His daughter, Ms Jenny Po, is a director of Billabongs. Mr Jimmy Po opened the Billabongs Restaurant about 24 years ago, but it is now run by Ms Po and her husband, Mr Ly Do.
[2] Ms Po’s duties include marketing, management and human resources. Mr Do is one of the 35 employees of Billabongs. Mr Do’s position is Restaurant Manager and he has responsibility for employees working in the kitchen and employees working on the floor of the Billabongs Restaurant, in addition to a range of general management responsibilities.
[3] Ms Poh Keng Chang commenced employment with Billabongs in the position of Cook on 1 July 2018. On 8 November 2018, Ms Chang filed an application for an order to stop bullying in the Fair Work Commission (Commission). Ms Chang’s application, as filed, was focused primarily on her allegation that she had been threatened at the Billabongs Restaurant by a colleague, Mr Ryan Chan. Following a number of conferences before the Commission, Billabongs put in place a regime on 12 December 2018 whereby Ms Chang would not have any communication or involvement with Mr Chan at work except in the case of an emergency. Both Ms Chang and Billabongs accept that this regime has been working effectively since 12 December 2018 and there is no reason to doubt that it will continue to work effectively into the foreseeable future.
[4] On 13 March 2019, Ms Chang informed the Commission, in writing, that she was no longer pressing any allegation of bullying against Mr Chan. On the same day, Ms Chang filed a table containing 33 allegations of bullying against Ms Po, Mr Do and Mr Jimmy Po, most of which were new allegations. A copy of that table of allegations is set out in paragraph [24] below.
[5] Although Ms Chang did not seek leave to amend her application for orders to stop bullying or to add Ms Po, Mr Do and Mr Jimmy Po to the proceedings as “persons named”, I made directions to ensure all relevant persons were made aware of the new allegations and were given a fair opportunity to respond to them. Accordingly, I have treated the table of allegations as, in effect, an addendum to Ms Chang’s application for orders to stop bullying.
Hearing
[6] I heard this matter on 1 May 2019. At the hearing, Ms Chang represented herself. Billabong, Ms Po, Mr Do and Mr Jimmy Po were represented by Ms Wilkinson, solicitor, with permission.
[7] Ms Chang adduced extensive written and oral evidence in support of her case. 1 I have read and had regard to all of that evidence in deciding this matter. She also called another employee of Billabong, Ms Ka On Lam, to give evidence on her behalf. Ms Chang and Ms Lam were supported by a translator at the hearing.
[8] Ms Po and Mr Do gave evidence in the proceedings on behalf of Billabong and the persons against whom allegations of bullying have been made by Ms Chang.
Jurisdiction
[9] Section 789FF of the Fair Work Act 2009 (Cth) (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.
[10] 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 Chang’s application, there are three conditions that must be met:
(a) first, Ms Chang must have made an application under s.789FC of Act;
(b) secondly, the Commission must be satisfied that Ms Chang 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 Chang will continue to be bullied at work by the individual or group.
Application
[11] There is no contest that Ms Chang is a worker, 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, there is a valid application before the Commission.
What constitutes bullying?
[12] The second condition requires the Commission to be satisfied that Ms Chang has been bullied at work by an individual or a group of individuals.
[13] Section 789FD of the Act sets out the test for establishing whether a person has been bullied at work. It provides as follows:
“(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.”
[14] The test is objective. 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. 2
Repeatedly behaved unreasonably
[15] 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.
[16] A one-off incident will not be a sufficient basis for the making of an application to the Commission. 3 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.4 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.5
[17] In Mac v BOQ, Vice President Hatcher provided (at [99]) 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.”
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: 6
“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.”
[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. 7
[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”. 8 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’.”9 I adopt Commissioner Hampton’s explanation of these concepts in GC (at [56]):
“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.”
[22] 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 BOQ. In that case, the applicant, Ms Mac, argued that the managerial decision to impose, and continue to impose, a PIP on her, was not reasonable management action because the shortcomings in her performance had not been sufficiently serious to justify that decision being made. 10 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:11
“… 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.” (emphasis added)
[23] I agree with this approach and will adopt it in the present case.
Bullying alleged by Ms Chang
[24] The table of allegations filed by Ms Chang on 13 March 2019 is set out below:
Describe alleged bullying conduct | Who engaged in the alleged bullying conduct? | When did the alleged bullying conduct occur? | Orders sought in relation to the alleged bullying conduct | ||
1 | Breach of the employment contract/Award/NES | Company Director JENNY PO did not give the explanation of Overtime rate which is $ 22.63 per hour in employment contract. The $ 27.25 is standard rate based on division of my salary ($ 54,000) by 38 hours per week. The Award rate is assumed to apply because there is nothing particularly in the Contract. The contractual conditions cannot be less favorable than Award conditions. My wages is set by the Award not my contract. | Jenny Po | 9/july/2018- current | Order to correct Pay and payslip and superannuation based on award |
2 | Breach of the employment contract/Award/NES | For 1st working week (02/07 – 08/07/2018) of employment period , I worked for 5 days and got in cash $ 954.5 without a payslip. JENNY PO responded that this is training wages on the first week, so that is. Before starting the employment period, she did not said any probation and training period to me. According to Registered and Licensed Clubs Award 2010 [MA000058], this amount of wages is lower paid with no tax PAYG and Superannuation. [As I know, It is also be happening on other employee]. | Jenny Po | 2- 8/July/2018 | Order to correct Pay and payslip and superannuation based on award |
3 | Breach of the employment contract/Award/NES | As Per 4 weeks period, I regularly work up to or more than 152 hour with only 6 normal roster days off . Breaching of Registered and Licensed Clubs Award 2010 [MA000058] 26.3 (e) Company did not pay me for overtime hour or offering time off. | Jenny Po | 1/july/2018- current | Order to correct Pay and payslip and superannuation based on award |
4 | Breach of the employment contract/Award/NES | Breaching of Registered and Licensed Clubs Award 2010 [MA000058] 18.1(a) Company do not give any notice of overtimeand do not paid an meal allowance for work overtime for more than 2 hours. | Jenny Po | 1/july/2018- current | Order to correct Pay and payslip and superannuation based on award |
5 | Misrepresentation/ Underpay/ Undue influence or pressure | Most of the Payslips show 38 ordinary working hours, it is not match up to my actual working hour and penalty hour (overtime and Working rostered days off). I was forced to accept a guarantee of annual earnings. | Jenny Po | 1/july/2018- current | Order to correct Pay and payslip and superannuation based on award |
6 | Adverse action : Changing an employee's job to their disadvantage | I am employed as a Grill Station cook. I denied to learn and work in BBQ station and other station before job offer. As my first working day, I was assigned and work in BBQ station and hurt my fore arms,I reported to Jenny Po, Jenny said that she will talk to Manager Ly Do. This is second time confirmed I am a grill cook verbally. | Jenny Po Ly Do | 5/07/2018 | Order to stop changing my job in verbal and writing until 1-July 2019. |
7 | Misrepresentation | I requested formal work enrollment . Jenny did not provide employee handbook, introduce me to all the colleagues for my position. I took initiative to ask for how to taking off day, leave. she replied that only thing is write your requesting day off on the worker calendar. this is important and related to an incident happened at 23/1/2019. | Jenny Po | 5/07/2019 | Order the company to do proper and formal Enrollment or orientation to new and existing employees. |
8 | Work Place Bullying/ Negligence of employee's work safety. | Jeff, mainly work at BBQ Station, complaint the chopping board is very dangerous to use. Mid August 2018, I will sometimes help BBQ to chop meat with using the "out of order" chopping board. Jeff appeal me to raise the changing of chopping board issue to Ly and Jenny at the counter , I did it. I told Ly and Jenny at the same time the chopping board is endangering the health and safety of the users, especially BBQ Station cook. since 24 Jan 2019 ,the chopping board was adjusted but it still not be fit to work safety requirement with the using standard currently. | Jenny Po Ly Do | 08/2018 to current | FWC Please notify related department (work safety) |
9 | Company failing to comply with a legal obligation and not giving employee a health and safety working environment/Adverse action: preventing me to use a work place right. | Ryan used to be rude without asking my permission to use my grill pan when I am using. Ryan wanted to use my pan , but I decline him in 2 reasonable reasons and in a manner way. He become aggressive with holding his spatula towards me and distance is very close to my knees. He threatened my life and loudering his voice to me that "you are a fucking bitch, do you believe I give you a punch now?" I quickly exit to Reception seeking protection from Jenny and reported to her. At the same day, I requested Jenny to organize a meeting with Ryan,me and Jenny to overcome work Place Bullying Issue and I want to find out is there any misunderstanding. Ultimately, only Jenny and me went to the meeting .Jenny said to me that Ryan won't give me a hit and he was making a joke. Jenny didn't tell me company has Grivance policy. Ryan is serious misconduct. | Jenny Po | 13/10/2018 12:45-13:45 | Based on Grievance report, I want Writing Apology letter from Ryan for what he Threatened me. Company oblidge to ensure every employees understand and conducting anti bullying rules and regulation in work place. (eg. employee and management training programme) |
10 | Adverse action : Changing an employee's job to their disadvantage/ Discriminating between employees/ mind game/ humiliating between employees. | I was suddenly called to attend a meeting by Ly with no agenda. Ryan Chan chaired the meeting, complaint my work performance Ly want me to work in Grill Station as well as Noodle Station At the same time.I rejected. At last in the meeting, Ly want to change my job from Grill station to Wok station for 4 weeks with no reasonable reasons. I asked what is the wok cook job responsibility and is that as same as what Ryan was doing. Ly said that: It's different from what Ryan was doing. And more than that. I reported to Jenny at my Lunch Break and denied to accept the job changing. The meeting has no report , no minute provided. Jenny said Ly is the person handle this. It's continuously happen but no writing record. Whenever I was called out ,I feel embarassed and read something weard from my collegues eye to me. | Ly Do | 27/10/2018 | Stop unreasonable and informal meetings invitation by Ly and management. Order Ly to attend management trainning class. |
11 | Work Place Bullying/ misrepresentation | Ly Do Issued me a letter of cencern alleged I didn't wash my hands after using bathroom. I disagreed the content and reject the allegation at the same day in writing. I reported to Jenny Po . A Grievance report was sent to me and ask me to fill. This is the ever First time I aware Grievance report. Management did not go through investigation and issued me a letter of concern as informal warning. | Ly Do | 28/10/2018 '15/12/2018 | Order to company Provide evidence or Apology in writing if not true. Delete this in my personnel file. |
12 | Work Place Bullying/ misrepresentation | I was firstly introduce and invited to write grievance report at 29/10/2018 without guideline, definition and only through Email. I firstly aware of company management preventing employee to use workplace right. At the 15/12/2018, I asked jenny to provide colleagues witness for not washing hand, Jenny said there is no witness and just to emphasis a customer complaint to me and force me to accept the letter of concern. This is unreasonable management action and unacceptable bullying and defamation. | Jenny Po | 29/10/2018 | Order company to introduce grievance policy to employees, ensure the employees understand their rights. |
13 | Work Place Bullying/ Mind Game/ Misrepresentation | I was invited to Displinary meeting at 2Nov and the meeting date is 5-Nov with using my off day, and 4 to 6 Nov is my Off Day and had explained to Jenny. In reply I am force to attend the meeting or face possible Displinary action. At the 7th Nov 2018, I disagree but had been called to attend meeting in person for more than 2 times by Jenny. | Jenny Po | 2/11/2018 | Stop unreasonable and informal meetings invitation by management. |
14 | Work Place Bullying/ Adverse action | 2/11 I told Ly , I want him to assist me in AVPO application to prevent Ryan continuous bullying. Ly asked me to borrow him the AVPO application material He promised to return the following day. He didn't. 3/11, I seeked jimmy Po help to contact Ly, and at the afternoon , I called Ly,Ly said he will not back to company. The AVPO application is overdue at 3/11 I aware of company management preventing employee to use workplace right and discriminating me and in favour of Ryan. | Ly Do | 3/11/2018 | order Ly do to be honest and returning the APVO application Form with detail filled in and my Signature. If ly lost it , Declare it in writing. |
15 | Work Place Bullying/ Misrepresentation/ Adverse Action | I was first force to attend Disciplinary meeting and meeting date is 7/11/2018. No agenda and purpose was given. Jenny Po comes to me in person to force me to attend displinary meeting at 7/11/2018. Again Jenny Po come to Grill Station in person tell me I have a right to seek support person and giving me 1 hour to seek. Employsure Pty Ltd has Alexandra Woods for their representative. The meeting is only Ms Alexandra and me , Ms Alex couldn't prove herself is from Employsure Pty Ltd from any documents and no agenda is provided. She wanted me to google search her. Also, she had more than 2 times to said that this is my only time to explain for myself. And more than 1 time to giving me a 5 minutes break to call for support person. I had declared the meeting held at 7/11/2018 is informal meeting to Ms Alex verbally and Write to Jenny Po. No minute and report is received from Employsure Pty Ltd and company. | Jenny Po | 5/11/2018 '7/11/2018 | Stop unreasonable and informal meetings invitation by management. |
16 | Adverse action: Against employee having or using work place right | I write to reply the company asking to rearrange meeting at 14/11/2018 for insufficient time to look for potential support persons. I write to management ,request for translator in the meeting Jenny rejected my request. | Jenny Po | 8/11/2018 '10/11/2018 | Stop unreasonable and informal meetings invitation by management. Stop Playing Mind game. |
17 | Work Place Bullying/ Mind Game/ Misrepresentation | I am ready myself for meeting at 14/11/2018. Jenny and no one notify me to cancel meeting. At night ,I received a hard copy letter from Jimmy Po and email from Jenny Po said a disciplinary meeting is cancelled and rescheduled at 21/11/2018. Displinary meeting guidance and Minutes issued by Employsure Pty Ltd, Signed by Jenny Po and Sent from Jenny Po. I aware that I am unfairly treated. I had been turned to be an accused person from complaint person. Chair person is Jenny Po. note taker is Ms Alexandra Woods. It's very pressure from mind game . My health is getting worse from the unreasonble management actions. | Jenny Po | 14/11/2018 | Stop unreasonable and informal meetings invitation by management. Stop Playing Mind game. |
18 | Work Place Bullying/ Mind Game | I am ready myself for meeting at 21/11/2018 Jenny Po cancelled the disciplinary meeting and email me 7 minutes before the meeting starts. | Jenny Po | 21/11/2018 | Stop unreasonable and informal meetings invitation by management. Stop Playing Mind game. |
19 | Adverse action: Against employee having/ Work Place Bullying or using work place right/ deliberately acts of unlawful harassment | Ryan come to Grill Station and taking photo of me while I am cooking at 10:35am 10:38am I reported this to the only mangement on duty, Jimmy Po. I requested immediately delete whatever picture taken about me. No immediate management action is acted. 10:42am I reported this to Jenny Po using what apps she replied she will investigate. I am frightened Ryan to use my for photo for any reasons. I do not received notice Ryan is authorised to take picture for company or company activities. Jimmy Po do not tell me Ryan Chan is authorised to take picture when I report to him. Jenny said Ryan taking picture for company.I aware I was discriminating and favour of Ryan. It's unlawful to taking my picture without my permission and in a work place. | Jenny Po Jimmy Po | 17/11/2018 | stop Anyone deliberate acts of unlawful harassment. Stop Company unfairly treated and discriminating between employees. |
20 | Adverse action:Agaist employee having/Work Place Bullying | 9am 5/12/2018 Ly arrange an investigation meeting all of sudden in person. And write email to me to join a displinary meeting. Jenny Po did not provide a license interpreter in the meeting according to Fairwork conference mutual agreement. Employsure Pty Ltd Ms Alexandra Woods take initiatives to call her company colleagues to interprete for me. I do not have support person and I take voice recording with everyone agreement. No meeting agenda at 5/12/2018 is provided , meeting purpose is not clear. I disagree with the meeting decision. | Jenny Po Ly Do | 5/12/2018 | Stop unreasonable meetings invitation by Ly and management. Order Billabong management to provide Employsure investigation resources and material . |
21 | coercion | 15/12/2018 company published a Roster schedule period from 17-23/ Dec/2018, Roster show I need to work from 11-21/Dec 2018 , total 11 days Roster Notice Period is 2 days. I immediately reported to Restaurant Manager Ly Do and Request him to arrange off day for me. Ly Do do not accept my appeal and ask me talk to Jenny Po. | Ly Do | 15/12/2018 | Fair work Order according to employment ACT. |
22 | Undue influence or pressure/ coercion | I reported I do not want to work for 11 days straight up with no off day to Jenny Po. I Emphasised that Ly and I had an verbal agreement on my Off days is fixed and always fall on Monday and Alternate Tuesday ,This agreement is start at early November as I refused to work at Grill Station and Noodle Station together at the same roter work day. Jenny Po force to change my rostered day off 18 /12/2018(Tue) to working day. Allow me to rest on Monday. Jenny said to me that If you intend to off on tuesday, take sick leave. I had clearly expressed to Jenny Po I am unwilling to work at 18/12/2018,It is not my work day. But she said I am put to work at that day ,and will be on the roster. | Jenny Po | 16/12/2018 | Fair work Order according to employment ACT. |
23 | Undue influence or pressure/ misrepresentation | Jenny Po is using management power to alter my annual leave days from 3 days to 2days. Which is agaist out previous verbal agreement. I do not agree with altering my annual leaves without discussion. | Jenny Po | 19/12/2018 | Fair work Order according to employment ACT. |
24 | Undue influence or pressure | I was told Annual leave could not be accumulated and will be clear every half year by Jenny Po before work starting. I requested Jenny to cash out my annual leave left over in 2018 in the Leave request form. She replied in the leave request form, Annual leave does not cash out with no reason provided. | Jenny Po | 23/1/2019 | Fair work Order according to employment ACT. |
25 | Work Place Bullying/ Misrepresentation/ Adverse Action/ Mind Game | 12/1/2019 ,I asked Roster Planner (Joanne He) for Kitchen Department how to apply Time Off In Lieu.And expressed to her this is my first time to take time off in lieu. Joanne He replied time off in lieu talk to her is ok. Joanne and I discussed and agreed to Time off in lieu 22/1/2019 wity using my public holiday working day 1/10/2018. '19/1/2019 Roster scheduled is published in the kitchen public area ,it's showned 21 and 22 January is my off day. 23/1/2019 I received a dispcilinary invitation letter in person for accused for my absense at 22 January and failed to follow reasonable management action from Ly around 10:40am when I having break time. Same day ,Joanne He gave me a leave request form ask me to help to fill up for the application of time off in lieu at 22/1/2019. 23/1/2019 Kitchen department start to apply taking time off in lieu need to submit Leave request form application. Around 8:20PM ,Ly ask me to ready a support person and he might get 2 Justice in Peace to the displinary meeting. I replied to Ly, I might try to get a Jp and I will report this incident and seek help from Fair Work .Ly agreed. I write to reply Ly and Carbon copy to Jenny for my response on these allegations at the same day. The displinary meeting notice period is 3 days. | Ly Do | 23/1/2019 | Fair work Order according to employment ACT. |
26 | Adverse action agaist employee to have or use a work place right/coercion | Ly Do is a chair person at 25/1/2019 ,I am accused person, Ly has a suport person Zac Davies (Human Resource Manager in East Maitland Bowling Club) atteded displinary meeting. Everyone is agree to have voice recording. Nearly End Of meeting, Ly banned me from seeking Lawyer advice or seeking help from Fair Work without his consent. Reminding me at least 2 times with giving me a reason ,this is an internal meeting , otherwise I would lead to displinary action. | Ly Do | 25/1/2019 | Fair work Order according to employment ACT. |
27 | misrepretation/ Unreasonable Management action | I received a warning letter but titled as letter of concern with what app conversation capture but this evidence did not showed and advised in the displinary meeting held at 25/1/2019. I told Ly that I did not aware of the "evidence" conversation providing in investigation meeting. Ly gave me an employee hand book at the same day. Ly did not gave me witness statement or other investigation resources copy. | Ly Do | 1/2/2019 | Order to Provide all investigation materials. Fair Work order according Employment act. |
28 | Employee serious misconduct/ Company failing to comply with a legal obligation and not giving employee a health and safety working environment. | Ryan used to smoked at the door way exit and breaching of 4 meter smoking law. Due to the second hand smoke drift to the kitchen and I was working in the back kitchen ,I start choking and make me feeling unwell for 3 days. I complained to Ly for Ryan smoked at the door way exit Ly noticed and replied that might be rainning outside. | Ly Do | Since Aug 2018 | order Stop and ensure employees understand Federal law- Smoking ACT I want Company capture CCTV at 23-Feb-2019 inform related department (Health and Work Safety) |
29 | Employee serious misconduct/ Company failing to comply with a legal obligation and not giving employee a health and safety working environment. | I write to complaint Mr Ryan Chan and smokers whom may breach of 4 meters smoking law to Jenny Po. I do not see fact finding investigation. I do not see management action. | Jenny Po | Since 23/2/2019 | Stop This and report to related department. |
30 | Adverse Action | I am forced and Liable to make Fried Ice Cream for Approximately 200 pieces a week I am a Grill cook. Changing/add job to disadvantage . I never agree with this job duty by verbal to Jenny. It has been one time to be seriously confirmed by Jimmy Po. The work operation is complicated and explained here: 0: Set up trays. 1: Scope 200 pcs Ice cream 2: Cut 12 whole breads into very thin slice with using machine (nobody train) and clean the machines and floors. ( Take 2-3 hours to finish) 3: Use the bread covers 200 pcs Ice cream 4: Mix bread crumb and Coconut shread , Prepared barter (30 Mins) 5: Form the semi finished product with barter and model them into round shapes with crumb. (more than 2 hours) | Jenny Po Jimmy Po | Since August 2018 | Order to stop. |
31 | Work Place Bullying | “Right of Search" is introduced in the employee handbook chapter 8 Clause 1. This is unfair to employees. The conduct could constitute an assault or breach of Human rights. | Billabong Management | Since Feb 2019 | Order company to refer Australia human rights law. |
32 | failing to comply with a legal obligation and not giving employee a health and safety working environment. | Individual Music broadcasting happening since I join the company in work hours. Employee handbook Chapter 8 Clause 3 bans for this. When come to my turn to broadcast individual songs, I was told to tune down for 1 times. Numbers of colleagues failed to practice , I had verbally complained to management but I didn't see proper management action. Especially when managers is not around. | Billabong employees Billabong Management | Since July 2018 | Ensure fairly treated to all employees. |
33 | Work Place Bullying | 3 Grievances from 29/10/2018 until 12/3/2019 ,1 is not properly overcome. other 2 is open status (5 months and ongoing) | Billabong Management | Since 29/10/2018 | Order to Provide all investigation materials from Employsure. Fair Work order according Employment act. |
[25] On 23 April 2019, Ms Chang filed another version of her table of allegations in which she included her reply to the responses given by Ms Po and Mr Do to the allegations in their witness statements. I have had regard to the table filed by Ms Chang on 23 April 2019 in deciding this matter.
[26] I will now address each of the allegations in Ms Chang’s table, under the following headings.
Chopping board (allegation 8)
[27] In about August 2018, Ms Chang raised an issue in relation to a chopping board used in the kitchen of the Billabongs Restaurant. The chopping board in question is not one which Ms Chang ordinarily uses. It is ordinarily used by an employee who works on a different service station to Ms Chang.
[28] Ms Chang complained that the legs on the chopping board were wobbly, which made the chopping board unstable and therefore unsafe. In response, Ms Po and Mr Do arranged for a maintenance employee to fix the chopping board. The maintenance employee removed the wooden legs from the chopping board and replaced them with metal legs. However, Ms Chang was not satisfied with this response because the replacement of the wooden legs on the chopping board with metal legs meant that the chopping board was lower than its original height and therefore unsafe because it gave rise to the risk of a back or other injury. In response, Mr Do arranged for a bespoke chopping board to be made with adjustable legs. The new chopping board is due to arrive in the Billabongs Restaurant in early May 2019. Ms Chang complains that it has taken too long to resolve these concerns, notwithstanding that she only used the chopping board occasionally before it had its wooden legs removed and once or twice, on a voluntary basis, after the wooden legs were removed.
[29] I accept that the conduct of Ms Po and Mr Do in relation to this issue has been reasonable. They did not ignore the concerns raised by Ms Chang. They responded to those concerns in a reasonable way: first, by having the chopping board repaired and, secondly, by having the chopping board replaced by a bespoke product. The delay in having the issue resolved has been caused by the different approaches taken to try to address the issue and the ordering of a bespoke replacement chopping board. In all the circumstances, the conduct of Ms Po and Mr Do has not caused an unreasonable delay in resolving this issue.
Letter of concern dated 28 October 2018 (allegations 11 & 12)
[30] I accept that on 28 October 2018 Mr Do was informed (a) by a front of house supervisor at the Billabongs Restaurant that a customer had complained that Ms Chang had left a cubicle in the toilet without washing her hands and (b) by another employee that they had witnessed Ms Chang using the bathroom at work without washing her hands. Ms Chang denies these allegations.
[31] There is a dispute as to whether Mr Do spoke to Ms Chang in relation to the washing hands issue on 28 October 2018. However, I do not need to resolve that dispute. Ms Chang complains that she should not have received the “letter of concern” from Mr Do later on 28 October 2018 because she did not fail to wash her hands. Importantly, the “letter of concern” expressly states that it “is not intended to be a formal warning and does not form part of the company’s disciplinary procedure” and that “it will be kept in your personnel file and thus takes the form of what is considered to be a reasonable written management instruction.” The letter goes on to state:
“It is essential that you never use the bathroom without thoroughly washing your hands. You are a valued member of the team and without consistency our business and your personal development will not grow. I hope you understand the need for me to set out my concerns in writing…”
[32] It is important to understand, by way of context, that Ms Chang works primarily at the grill station in the Billabong Restaurant, where she can be seen by patrons. Although Ms Chang wears gloves when handling food, it is vitally important to the reputation of the Billabongs Restaurant that patrons do not have any reason to be concerned about the hygiene standards of employees working in the Billabongs Restaurant.
[33] As Ms Po explained in her oral evidence, there was no investigation and no finding that Ms Chang had failed to wash her hands after using the bathroom at work. Ms Po and Mr Do decided that rather than making findings and potentially taking disciplinary action against Ms Chang, they would remind Ms Chang in a letter dated 28 October 2018 of the essential requirement that she “never use the bathroom without thoroughly washing” her hands. In any event, given the importance of the need for patrons of the Billabongs Restaurant to have no reason to doubt the hygiene standards of employees working in the kitchen, I consider it would have been reasonable for Mr Do and Ms Po to have been satisfied on the balance of probabilities, on the basis of the two complaints received by Mr Do, that Ms Chang engaged in the alleged conduct and a “letter of concern” should be sent to her reminding her of her obligation to wash her hands after using the bathroom.
[34] The fact that the “letter of concern” has remained on Ms Chang’s personnel file does not establish that disciplinary action was taken against Ms Chang in relation to this issue. The existence of the letter will only become relevant in the future if Ms Chang does not wash her hands after using the bathroom at work. If such an event were to occur, Billabongs would be able to consider the event in light of the fact that in October 2018 Ms Chang had been reminded of her obligation to wash her hands after using the bathroom.
[35] In all the circumstances, I am satisfied that neither Mr Do nor Ms Po acted unreasonably towards Ms Chang in relation to this issue. I am also satisfied that providing the letter dated 28 October 2018 to Ms Chang was reasonable management action carried out in a reasonable manner.
Letter of concern dated 1 February 2019 (allegations 7 & 25-27)
[36] In January 2019, Ms Chang exchanged the following WhatsApp communications with Ms Po in relation to her application to take time off in lieu of overtime:
“Ms Chang:
“… I mean i would like to claim time off in lieu.”
Ms Po:
“Yes sure Phil [Chang]! When do you want time off? Can you please fill out a leave form for the dates you want to request and pass to Joanne. Thanks”
[37] Ms Chang did not fill out a leave form or respond to Ms Po’s direction that she do so. Ms Chang claims she did not see Ms Po’s response to her WhatsApp message and instead approached another employee, Joanne, who told her to write on the roster that she was having a day off on 22 January 2019. Ms Chang proceeded to make such an entry on the roster and took 22 January 2019 off work.
[38] Ms Po spoke to Joanne, who informed her that Ms Chang had told her that Ms Po had approved the time off in lieu. Ms Chang denies this. Ms Chang contends that she asked Joanne how to take time off in lieu and she followed the process explained to her by Joanne. I do not need to resolve the issue about the contested conversation between Ms Chang and Joanne. Nor do I need to resolve the dispute about whether Ms Chang received the Employee Handbook in December 2018, as contended for by Ms Po, and therefore should have been aware of the process for taking time off in lieu. It is not in dispute that Ms Chang asked Ms Po how to take time off in lieu and Ms Po responded in writing (on WhatsApp) to inform her of the correct procedures. Ms Chang did not follow that procedure. Even accepting that Ms Chang did not read Ms Po’s response directing her to complete a leave form for the time off in lieu she wanted to take, that was a failure on Ms Chang’s part. Having asked the most senior person at Billabong, Ms Po, to take time off in lieu, Ms Chang should have checked her messages, read the response by Ms Po and followed her direction in that regard. In all the circumstances, I am satisfied that Ms Po and Mr Do acted reasonably towards Ms Chang in relation to this issue. I am also satisfied that providing the “letter of concern” dated 1 February 2019 to Ms Chang for failing “to follow reasonable management instruction” was reasonable management action carried out in a reasonable manner.
Ms Chang’s duties and responsibilities (allegations 6, 10 & 30)
[39] Ms Chang’s written contract of employment states that she is employed by Billabongs in the position of “Cook”. During her telephone interview, Ms Chang claims she was told by Ms Po that she would be working 90% of the time on the grill station. Ms Po says that she told Ms Chang that she would be working mostly on the grill station. Both Ms Po and Ms Chang agree that Ms Po sent photos to Ms Chang of the grill station in the Billabongs Restaurant at about the time of the telephone interview.
[40] I find, on the balance of probabilities, that Ms Po told Ms Chang that she would be working most of the time on the grill station. I do not accept that Ms Po told Ms Chang that it would be 90% of her time. It seems unlikely that such a percentage figure would be given by Ms Po in the context of a busy restaurant where most of the cooks in the Billabongs Restaurant work on different stations from time to time and those who work mostly or exclusively on one station are, as Mr Do explained in his oral evidence, willing to work on other stations where the need arises.
[41] In the period from the commencement of her employment on 1 July 2018 to about October 2018, Mr Do tried on a number of occasions to get Ms Chang to agree to work on stations other than the grill station in the Billabongs Restaurant. During one of these discussions, I accept Mr Do’s evidence that after Ms Chang said she would work on the wok station, Mr Do said to Ms Chang words to the effect: “This is fantastic, I can’t wait to see what you’ve got Phyl [Chang].” Mr Do had a smile on his face when he made this comment. Ms Chang interpreted the look on Mr Do’s face as one of belittlement and she felt humiliated as a result. However, I accept Mr Do’s evidence that he smiled when he made this comment because he was genuinely happy and excited to see the level of Ms Chang’s skills in areas of the kitchen other than the grill station.
[42] Ms Chang has generally been resistant to working on stations other than the grill station and has worked mostly on the grill station during her employment at the Billabongs Restaurant. Indeed, Mr Do is now resigned to the fact that it is too difficult to get Ms Chang to work on a station other than the grill station, so she only works on the grill station.
[43] I consider Ms Chang’s refusal, in her position as a Cook, to work on stations other than the grill station to be unreasonable (apart from her unwillingness to work on the bbq because she is not tall enough to work on it in a safe manner). Ms Chang acknowledges she has the skills and experience to work on other service stations in the kitchen of the Billabongs Restaurant. In a busy kitchen such as at the Billabongs Restaurant, it is reasonable for an employer to ensure its Cooks are multi-skilled, so it can roster staff efficiently and cover for employee absences. It follows that the attempts made by Mr Do for Ms Chang to work on stations other than the grill station and the bbq were reasonable.
[44] In the Billabongs Restaurant, the Cook working on the grill station is, and has been for 24 years, responsible for preparing deep fried ice cream. Ms Chang reluctantly undertakes this work, but believes she should not have to prepare deep fried ice cream because (a) it is not, in her view, the work of a grill cook and (b) she is too busy on the grill station to do the additional work of preparing a dessert such as deep fried ice cream. I am satisfied it is reasonable for Billabongs Restaurant to direct a person employed as a Cook, such as Ms Chang, to prepare deep fried ice cream, as well as working on the grill. Mr Do will, however, need to ensure there is adequate staff employed on a shift, so that Ms Chang is reasonably able to keep up with her work on the grill station, as well as her work in preparing deep fried ice cream.
[45] For the reasons given, I am satisfied that neither Mr Do nor Ms Po has acted unreasonably in relation to the requests and instructions given to Ms Chang to undertake various types of work in the Billabongs Restaurant. I am also satisfied that this conduct by Mr Do and Ms Po constitutes reasonable management action carried out in a reasonable manner.
Smoking (allegations 28-29)
[46] Ms Chang has raised issues with Ms Po and Mr Do in relation to employees smoking near the exit of the back kitchen at the Billabongs Restaurant. I am satisfied that Ms Po and Mr Do have taken appropriate action to respond to these issues, including by issuing a verbal warning and a written warning to Mr Chan for smoking in the wrong areas. In relation to Ms Chang’s allegations that Ms Po smokes near the Billabongs Restaurant, 12 I accept Ms Po’s evidence that she has not been smoking in the wrong areas, but even if she had, her conduct in doing so would not constitute bullying of Ms Chang.
Rostering in December 2018 (allegation 21-24)
[47] Ms Chang requested annual leave around Christmas 2018, which is a very busy time for the Billabongs Restaurant and it does not generally allow employees to take annual leave at that time. Notwithstanding this, Billabongs acceded to Ms Chang’s request to take annual leave from 22 to 27 December 2018. The rosters for Billabongs’ staff had to be adjusted to enable Ms Chang to take this annual leave. In the result, Ms Chang was inadvertently rostered to work 11 days straight prior to Christmas 2018. Ms Chang raised this issue with Ms Po, who responded by text with the following message to Ms Chang:
“Sorry didn’t realise u will be working 11 days straight. U will have Monday 17th Dec off. Thanks. Speak to you tomorrow.”
[48] There was a dispute between Ms Chang and Ms Po about 18 December 2018. Ms Po believes that Ms Chang had agreed to work on 18 December 2018 as part of the agreement to allow her to take annual leave over Christmas. Ms Chang says there was no such agreement, and 18 December 2018 was one of her normal rostered days off. As events transpired, Ms Po was sick on 18 December 2018 and took sick leave on that day. No action was taken against Ms Chang in relation to this issue.
[49] I consider that the disagreement about whether Ms Chang was required to work on 18 December 2018 was a genuine misunderstanding and was not a result of, and did not constitute, unreasonable conduct on the part of Ms Po or Mr Do. Further, I am satisfied that the rostering of Ms Chang in December 2018, including the annual leave taken by Ms Chang in that month, was not unreasonable and constituted reasonable management action carried out in a reasonable manner.
Investigation into dispute between Ms Chang and Mr Chan (allegations 9, 13, 15-18 & 20)
[50] Billabongs engaged Employsure Pty Ltd (Employsure) to conduct an investigation into the dispute between Ms Chang and Mr Chan. In connection with that investigation, a number of meetings were arranged with Ms Chang, many of which had to be postponed for one reason or another. Eventually, Ms Chang participated in a long meeting on 5 December 2018 with a representative of Employsure.
[51] Employsure completed its investigation in December 2018 and found:
(a) Mr Chan had not engaged in bullying, harassment, sexual discrimination or sexual harassment towards Ms Chang; and
(b) Mr Chan and Ms Chang have conflicting opinions about how work should be performed and both employees have not acted appropriately and professionally towards each other in the workplace.
[52] In January 2019, Ms Chang was provided with a copy of a summary of the findings and recommendations made by Employsure. Ms Chang does not agree with the findings or recommendations and says the investigation was not appropriate.
[53] I am satisfied that it was reasonable for a small business such as Billabongs to engage a third party to conduct an investigation into the dispute between Ms Chang and Mr Chan. I am satisfied on the evidence adduced in these proceedings that Ms Chang was given a fair opportunity to participate in the investigation and to respond to allegations made as part of that investigation. I am also satisfied that it was reasonable for Billabongs to put in place a regime whereby there would be no contact or communication between Ms Chang and Mr Chan at the workplace except in the case of an emergency.
[54] In all the circumstances, I am satisfied that neither Mr Do nor Ms Po engaged in any unreasonable behaviour towards Ms Chang in relation to the investigation into the dispute between Ms Chang and Mr Chan. In addition, the action taken by Mr Do and Ms Po to have investigated, and put in place measures to address, the dispute between Ms Chang and Mr Chan, was reasonable management action carried out in a reasonable manner.
Ms Chang’s application for an apprehended violence order (allegation 14)
[55] In about November 2018, Ms Chang approached Mr Do in relation to an apprehended violence order she wanted to apply for against Mr Chan. Ms Chang asked Mr Do to fill out an application, part of which required the disclosure of Mr Chan’s personal details. Mr Do informed Ms Chang that he was not “obligated to discuss Mr Chan’s personal information” with her, but he would speak to Ms Chang’s lawyer if they wanted to discuss the matter with Mr Do.
[56] In a later discussion, Ms Chang requested Mr Do to return the apprehended violence order application to her. Mr Do gave evidence, which I accept, that he had misplaced the application form and informed Ms Chang that he had done so.
[57] I am satisfied that Mr Do acted reasonably in not disclosing Mr Chan’s personal details to Ms Chang. I also accept that Mr Do’s conduct in misplacing the apprehended violence order application form was a genuine mistake, and did not constitute unreasonable behaviour within the meaning of s 789FD of the Act.
Music in the workplace (allegation 32)
[58] In the past, there has been a practice of kitchen staff playing music at their work station in the Billabongs Restaurant. In January 2019, Ms Po received a telephone call from an employee of the Billabongs Restaurant informing her that Ms Chang was playing loud music at work and the employee could not hear the phones ringing or answer calls. Following this incident, Ms Po prohibited all staff from playing music at work. I am satisfied that in doing so Ms Po has not engaged in unreasonable behaviour. It will be a matter for Mr Do and Ms Po to take steps to address any non-compliance with the new prohibition on the playing of music at work.
Photographs at work (allegation 19)
[59] Ms Chang complained to Mr Jimmy Po and Ms Po that Mr Chan came to the grill station on 17 November 2018 and took a photo of Ms Chang while she was cooking. Ms Po raised the issue with Mr Chan, who told her that he took the photo to show Ms Po that Ms Chang was using Billabongs food to cook a staff meal on work premises, contrary to a Billabongs policy. Ms Po informed Mr Chan that it did not look as though there was enough food for a staff meal. Ms Po did not take any action against Ms Chang in relation to this issue. Further, Ms Po has decided that in the event a photograph of a meal prepared by staff is required by Billabongs in the future, Ms Po will direct employees to seek prior permission from the cook when seeking to take the photo. In all the circumstances, I am satisfied that this issue does not warrant a finding of unreasonable behaviour.
Right of search (allegation 31)
[60] Ms Chang is concerned that Billabongs’ Employee Handbook includes a right on the part of Billabongs to carry out searches of employees and their property (including vehicles) while the employee, or their property, is on Billabongs’ premises or during the performance of their duties. No such search has been carried out, or threatened to be carried out, on Ms Chang or her property. Whether any such search in the future is reasonable and lawful will depend on a range of circumstances.
Unresolved grievances (allegation 33)
[61] Ms Chang complains that of the three grievances she has raised with Billabongs, one is not “properly overcome” and two have an “open status”.
[62] I accept Mr Do’s evidence that none of Ms Chang’s grievances remain “open” or have not been properly addressed. For example, Ms Chang’s grievances concerning receiving “letters of concern” on 28 October 2018 and 1 February 2019 have been properly resolved by a decision on the part of Ms Po and Mr Do to retain the letters on Ms Chang’s personnel file, and Ms Chang’s grievance concerning her dispute with Mr Chan has been investigated and properly addressed by the “no communication” regime put in place on 12 December 2018.
Alleged breaches of award and contract (allegations 1 to 5)
[63] I am satisfied on the evidence that (a) Ms Chang was paid cash for the first week of her employment because she had not provided Billabongs with her bank account details or tax file number, (b) Ms Chang is provided with two meals a day, in lieu of a meal allowance, and (c) Ms Chang and Ms Po agreed on an annual salary of $54,000 plus superannuation and (d) Ms Chang’s contract of employment clearly states that any entitlement to overtime she has will be calculated on a base hourly rate of $22.63.
[64] In her table of allegations submitted on 13 March 2019, Ms Chang included a number of allegations to the effect that Billabongs has breached the Registered and Licensed Clubs Award 2010 (Award), her employment contract, and the National Employment Standards (NES). The relief sought by Ms Chang in respect of these allegations is an order to “correct pay and payslip and superannuation based on award”. As I explained to Ms Chang during the hearing, I do not have the power in an anti-bullying application to make orders for the payment of a pecuniary amount. 13
[65] I do not make any findings in these proceedings about whether Billabongs has breached any obligation it owes Ms Chang under the Award, her contract, or the NES. Ms Chang may pursue her breach of Award, contract, and NES claims with the Fair Work Ombudsman or in other proceedings. In order to consider those claims properly, they would, unlike in these proceedings, need to be sufficiently particularised and supported by detailed evidence. On the evidence adduced in these proceedings, I am not satisfied that Ms Po or Mr Do has engaged in any unreasonable behaviour in connection with Ms Chang’s allegations concerning breach of the Award, her contract, and the NES.
Additional steps to ensure Ms Chang’s safety in the workplace
[66] Ms Po gave evidence, which I accept, that she will take the following additional steps to address issues raised by Ms Chang:
(a) Ms Po will conduct a training session for employees and management in relation to inappropriate workplace behaviour, bullying and the management of grievances;
(b) Ms Po will direct employees to seek prior permission from the Cook when seeking to take a photo of a prepared meal;
(c) Ms Po has arranged for a new chopping board with adjustable legs to be made for use in the kitchen of the Billabongs Restaurant;
(d) Ms Po will ensure rosters will be published at least two weeks in advance; and
(e) Ms Po will provide each new employee with a copy of the Employee Handbook when they commence employment.
[67] I am satisfied that these are reasonable and appropriate measures to ensure that all employees of Billabongs, including Ms Chang, feel safe in the workplace and have a better understanding of what is required of them.
Conclusion
[68] I accept that Ms Chang has been genuinely upset about various events and issues in the workplace. However, the legislation requires that I focus on the reasonableness of the relevant conduct, rather than Ms Chang’s perception of it.
[69] Even if I accepted that Mr Chan behaved unreasonably towards Ms Chang by threatening her in October 2018, I am satisfied, for the reasons given above, that there has been no repeated unreasonable behaviour by Mr Chan, Ms Po, Mr Do and/or Mr Jimmy Po towards Ms Chang or a group of workers to which Ms Chang belongs.
[70] Ms Chang has raised a number of issues in the workplace. I am satisfied that Billabongs has responded to those issues in a reasonable manner. Mr Do and Ms Po have also raised a number of issues with Ms Chang and taken action in respect of them, including issuing her with two “letters of concern”, one of which constitutes disciplinary action and the other does not. The behaviour of Mr Do and Ms Po in relation to those matters has had an evident and intelligible justification and constitutes reasonable management action taken in a reasonable manner.
[71] Part of the tension in the workplace has arisen from Ms Chang’s reluctance or refusal to undertake work which she does not believe falls within the scope of her position as a Cook at the Billabongs Restaurant. Although Ms Po made the representation to Ms Chang that she would be working mostly in the grill section of the Billabongs Restaurant, it is reasonable for Billabongs to issue directions requiring Ms Chang to work in other sections of the Billabongs Restaurant, from time to time, provided it is safe to do so and Ms Chang is given adequate instruction and training, if required.
[72] For the reasons set out above, I find that Ms Chang 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 Ms Chang. Ms Chang’s application for orders to stop bullying is dismissed.
DEPUTY PRESIDENT
Appearances:
Ms Wilkinson, solicitor, on behalf of Billabongs Restaurant, Ms Jenny Po, Mr Ly Do and Mr Jimmy Po.
Ms Chang, on behalf of herself.
Hearing details:
2019.
Newcastle:
1 May.
Printed by authority of the Commonwealth Government Printer
<PR708102>
1 Exhibits A1 to A57
2 GC[2014] FWC 6988 (GC) at [47]
3 Re SB (2014) 244 IR 127; [2014] FWC 2104 (Re SB) at [41]
4 GC at [45]
5 Ibid; Mac v Bank of Queensland Limited[2015] FWC 774 (Mac v BOQ) at [88]-[89]
6 Explanatory Memorandum to the Fair Work Amendment Bill 2013
7 Purcell v St Aloysius College at [22]
8 Re SB at [49]
9 Re SB at [51] see also Mac v BOQ at [91]
10 Mac v BOQ at [101]
11 Ibid at [102]
12 Ex A57 at [50]
13 Section 789FF(1) of the Act