Application for an FWC order to stop bullying. Action of employer and supervisor reasonable management action, application dismissed.

[2017] FWC 6154

[2017] FWC 6154

FAIR WORK COMMISSION

EX-TEMPORE DECISION

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

David Kotevski
(AB2016/660)

DEPUTY PRESIDENT BULL PERTH, 27 NOVEMBER 2017

Application for an FWC order to stop bullying. Action of employer and supervisor reasonable management action, application dismissed.

[1] This matter was heard in Sydney on 13 and 14 November 2017. At the conclusion of the proceedings on the second day, the matter was adjourned and the parties were advised that the Commission would hand down its decision on transcript later that day which it did. This is the published version of the decision in transcript edited for style and clarity. 1

[2] Mr David Kotevski, the applicant, has been employed by MSS Security Pty Ltd (MSS Security), the respondent in this matter, as a security officer since January 2011. The second respondent is Mr Matthew Farlow, the New South Wales State Operations Manager. Mr Kotevski alleges that he was, and is, subject to bullying by his employer MSS Security Pty Ltd and in particular by Mr Farlow.

[3] In Mr Kotevski’s initial application he alleged bullying by a Joseph Premnath, the Site Security Manager at the HMAS Watsons Bay Naval Base and at the time Mr Kotevski's direct supervisor.

[4] Mr Kotevski was employed as a Security Officer at the Watsons Bay site and his allegation stated that Mr Premnath had been, and was, behaving in an offensive manner designed to cause Mr Kotevski harm and harassment. Mr Kotevski alleged that Mr Premnath made constant false accusations about him, causing him to feel stressed and affecting his general wellbeing. MSS Security responded, referring to the process it had undertaken pursuant to its harassment and bullying policy.

[5] Action was taken by MSS Security against Mr Premnath as a result of Mr Kotevski's complaint, including coaching of Mr Premnath, but MSS Security found no evidence of bullying.

[6] A number of conciliation conferences between the parties were held before the Fair Work Commission following the filing of the application. One outcome agreed to was for Mr Kotevski to temporarily transfer to another work site until the retirement of Mr Premnath, anticipated to be in early 2017. Subsequently, Mr Kotevski was transferred to the Randwick Naval Barracks.

[7] A complicating factor in Mr Kotevski's working arrangement arises from his current work restriction following a workplace injury where he slipped on a banana skin on stairs while at work. Mr Kotevski is unable to drive for longer than 40 minutes, making it difficult to travel to work and home within a 40 minute time span at some work sites, especially during peak traffic times.

[8] Section 789FF(1)(b)(ii) of the Fair Work Act 2009 (FW Act) requires the Commission to be satisfied that if a worker has been bullied, that there is a risk that the worker will continue to be bullied at work by the individual named, in considering whether the Commission will issue an order or otherwise.

[9] On the cessation of Mr Premnath's employment in April 2017, it was accepted by Mr Kotevski that there was no possibility of Mr Premnath continuing to bully him, even if he had done so in the past. As Mr Premnath is no longer in the MSS Security workforce the Commission cannot be satisfied that there is an ongoing risk of bullying from Mr Premnath.

[10] Mr Kotevski now submits that the bullying is being perpetrated by another MSS Security employee, Mr Matthew Farlow, the New South Wales State Operations Manager. As a result he has filed an amended application to reflect this allegation.

[11] A number of events are referred to by Mr Kotevski which occurred prior to his original application filed in October 2016, which did not make any complaint against Mr Farlow.

[12] No witness statement has been provided by Mr Kotevski as directed by the Commission however it appears that four events in particular are the genesis of Mr Kotevski's amended bullying application.

[13] Firstly, an event on 19 January 2017 where he arrived at the Randwick Barracks without his work tie and safety vest, resulting in a written warning signed by Mr Farlow.

[14] Secondly, an event on 7 February 2017 when he did not attend work at the Randwick Barracks due to illness, which resulted in a written warning regarding his conduct during an investigation concerning the incident, the written warning was also signed by Mr Farlow.

[15] Thirdly, the changing of his roster at Watsons Bay Barracks which does not now accommodate his travel restrictions, making him unable to return to Watsons Bay.

[16] Fourthly, Mr Farlow putting pressure on him to prevent him from undertaking his walking exercises while at work in regard to his workers compensation injury.

[17] Mr Kotevski also raised issues with his pay, but conceded they have been remedied, or are in the process of being remedied and are not examples of being bullied by Mr Farlow.

[18] Taking each complaint separately, I have reached the following conclusions.

[19] In regard to the written warning signed by Mr Farlow, for arriving at the Randwick Barracks on 19 January 2017 without his full uniform which included a tie and his visibility safety vest, Mr Kotevski submitted the issue was trivial and did not warrant a written warning as he did not refuse to wear a tie or his safety vest. While not producing any evidence, he states that other employees who have not attended work with a tie have not received written warnings. His evidence was that he had misplaced his tie and assumed that the work site would have one that he could wear.

[20] Mr Geoff Alcock, the New South Wales Executive General Manager, gave evidence of the need to maintain dress standards at all Navy work sites.

[21] Mr Farlow, who issued the warning, stated that the warning was for failing to adequately prepare for and attend duty fully attired. Mr Farlow stated that while Mr Kotevski was provided with a high visibility safety vest by his Site Manager at the time, there was no tie available onsite and he worked his shift without one on the day in question. This was in contravention of the MSS Security Employment Standing Instructions. Mr Farlow stated that he had issued a written warning to other employees for not wearing their tie, although no direct evidence of this was provided.

[22] It is accepted that attending work with a tie and safety vest is a work requirement that Mr Kotevski breached. In this case he was given a written warning. While other sanctions were available to the employer, such as a verbal counselling, MSS Security submits that a written warning was reasonable management action carried out in a reasonable manner.

[23] While other employers may have chosen not to issue a written warning, I am not able to conclude that the written warning was unreasonable management action as the conduct occurred and was in breach of the policy which was known to Mr Kotevski and required to be followed. Wearing the correct work attire at all times was a requirement at Navy work sites.

[24] In respect to the second written warning issued on 7 February 2016, arising from Mr Kotevski not attending for work at the Randwick Barracks, he stated that he phoned in to the ACT call centre of MSS Security to advise of his impending absence due to being ill. When MSS Security became aware of his absence they sought to ascertain from Mr Kotevski whether he had notified MSS Security that he was not attending work and the reason for the absence. Mr Kotevski was adamant that he had phoned in to advise of his absence, however MSS Security could not find any record of this phone call.

[25] Mr Kotevski's only witness, Mr Humpherston, a Service Delivery Coordinator based in the ACT, who gave evidence by video conference, was unable to support Mr Kotevski's assertion that he phoned in on 7 February 2017. Although Mr Kotevski submits that this was contrary to what he had said during an earlier telephone conversation on 8 July 2017, which was played during the hearing and supported Mr Kotevski’s recollection of the conversation. In respect to this conversation, Mr Humpherston said his response at the time was incorrect as he was confused with the dates as the event was five months earlier, and that he could not have taken Mr Kotevski's call at the time as he did not start work on this day until 20 minutes to midnight that evening, well after the time the call was allegedly made.

[26] As MSS Security had no record of the call they required Mr Kotevski to provide a written response and an explanation for his absence. MSS Security submitted that trying to obtain a response from Mr Kotevski proved exceptionally difficult over a long period and while no issue was subsequently taken with Mr Kotevski's notification of his absence or the reasons for his absence he did receive a written warning stating that his conduct during the investigation process was uncooperative and evasive.

[27] This letter was also signed by Mr Farlow. Mr Kotevski disagrees with the written warning and wants the written warning removed as it, in his view, constitutes bullying.

[28] This issue was resolved during the hearing on the basis that MSS Security agreed to withdraw the written warning of 24 March 2017. Despite much evidence on this subject I do not need to deal with the issue as Mr Kotevski's request has now been accommodated, which is to MSS Security’s credit.

[29] Thirdly, in respect to the change of roster, from October 2016 Mr Kotevski was working at the Watsons Bay Barracks on a restricted roster, being eight hours a day, four days a week, as his workplace injury did not allow him to work a normal 12 hour day or evening roster.

[30] Mr Kotevski was described by MSS Security as a supernumerary, as this roster was not paid for by the client. He had previously worked the hours of 9pm to 5am for night shift and 5am to 1pm for day shift. In October 2016, Mr Farlow determined that his eight hour shift should be worked between 9am and 5pm during the days for operational reasons, and 9pm to 5am for night shifts.

[31] At the time of Mr Farlow’s decision there was no travel restriction listed on Mr Kotevski's medical clearance. Following the direction from Mr Farlow a medical clearance was received stating that Mr Kotevski should not drive for longer than 40 minutes without a break. Mr Kotevski states that working 9am to 5pm meant that he would take longer than 40 minutes to drive to and from work at this time of the day. Working his previous hours he could have arrived well within the 40 minute period.

[32] Mr Kotevski currently works at the Randwick Barracks three days a week and spends one day a week offsite doing job seeking arranged by MSS’s workers compensation insurer, Allianz. His working hours as a supernumerary are 6am to 2pm, this being the time slot that allows him to travel to Randwick Barracks in under 40 minutes, with Randwick Barracks being a closer location to his residence than the Watsons Bay Barracks.

[33] Mr Kotevski transferred to Randwick while Mr Premnath was working at Watsons Bay. Now that Mr Premnath has left Watsons Bay, Mr Kotevski wishes to return to Watsons Bay to work his previous hours of 9pm to 5am as an evening shift and 5am to 1pm as a day shift. Mr Kotevski submits that his inability to return to Watsons Bay is a result of bullying by Mr Farlow.

[34] In response, Mr Farlow stated that the requirement for Mr Kotevski to work eight hours at Watsons Bay between 9am to 5pm was to accommodate his eight hour work restriction 2 and to allow the Watsons Bay Site Manager to be freed up during these hours to attend to other duties. It was only when the travel restriction was raised, after the advice of the roster change, that the hours could not be worked. Requiring him to work these hours at Watsons Bay would be in conflict with the medical capacity clearance that places travel restrictions on Mr Kotevski. Mr Farlow states that the hours currently worked at Randwick allow compliance with his travel restrictions.

[35] Mr Farlow's evidence was that once Mr Kotevski's travel restrictions are removed he will be able to return to Watsons Bay. MSS Security points to Mr Kotevski's employment contract which allows MSS Security to direct its employees to any site at which it has a security contract. I accept that for genuine operational reasons at Watsons Bay, that is, to allow the Site Manager to perform other duties after 9am that Mr Kotevski is required to work his eight hours from 9am to 5pm on day shifts. I accept that he cannot work 9am to 5pm on day shifts with his current driving restrictions.

[36] I accept that MSS Security has the ability to transfer its Security Officers across sites as part of their employment contract. I accept that Mr Kotevski’s current working arrangements are in compliance with his WorkCover restrictions. As such, I do not find that his inability to resume work back at Watsons Bay, with hours unsuitable to MSS Security, as constituting bullying. The current working arrangements at Randwick assist Mr Kotevski to meet his medical restrictions and result from an accommodation by MSS Security. The action taken by MSS Security is reasonable management action carried out in a reasonable manner.

[37] Fourthly, Mr Kotevski alleges Mr Farlow put pressure on him to prevent him from undertaking his walking exercises while at work in regard to his workers compensation injury. In Mr Kotevski's amended application he states that since his workplace accident, Mr Farlow has been prejudiced and unsupportive. He states that Mr Farlow, in February 2017, applied considerable pressure to prevent him undertaking his walking exercises which are part of his treatment under his WorkCover medical capacity certificate.

[38] Mr Farlow responded by stating that Site Manager, Dragan Markov, informed him that Mr Kotevski was, during his working shift, undertaking walking exercises away from his immediate work location, out of sight of work colleagues and would simply disappear. He was also absent for periods longer than that stipulated on his WorkCover certificate and did so without notifying his immediate manager. On this basis he was reminded by Mr Farlow of the requirement to notify management when he needed to conduct his walking exercises, and to do so within proximity to his work location. No further action was taken by Mr Farlow or MSS Security. Mr Farlow was cross-examined on this matter by Mr Kotevski and he did not resile from his evidence. I note that this complaint was not raised in Mr Kotevski's initial bullying application.

[39] For Mr Kotevski’s application to succeed, the management action taken by Mr Farlow must be unreasonable or carried out in an unreasonable manner. Mr Farlow was advised by a site manager of conduct undertaken by Mr Kotevski in relation to his walking exercises that was not in keeping with the existing medical capacity certificate and that raised issues as to his whereabouts. He was put on notice by Mr Farlow to rectify these matters and no further action was taken. It was reasonable management action carried out in a reasonable manner.

[40] It is also noted that Mr Kotevski had little direct contact with Mr Farlow. There was certainly no day to day contact and the evidence was that the contact that did occur was less than once a month. Mr Kotevski raised a number of other issues that were either not relevant or could not possibly constitute bullying as defined under the FW Act.

[41] Mr Kotevski has not been able to demonstrate to my satisfaction that Mr Farlow or MSS Security has repeatedly behaved unreasonably towards him. The conduct complained of fits within the ambit of reasonable management action carried out in a reasonable manner.

[42] Having arrived at this conclusion I have taken into account the removal of the written warning of 24 March 2017, that Mr Kotevski had some legitimate grievances that were not resolved or investigated to his satisfaction and that MSS Security will look to returning Mr Kotevski back to Watsons Bay when his medical restrictions are either removed or allow this to occur.

[43] On occasions MSS Security’s communication to Mr Kotevski could have been better, but mere imperfection in undertaking management action does not make it unreasonable under the FW Act, and, it must be repeated, unreasonable behaviour that creates a risk to health and safety. Mr Kotevski's complaint was not without some merit, hence MSS Security’s withdrawal of his 24 March warning letter after some obvious deficiencies were brought to light during the hearing.

[44] The Commission can only act when its jurisdiction is invoked, and even then there is discretion whether to issue orders or not. On the basis of what I have said in respect to the complaints made by Mr Kotevski and the defence raised by MSS Security, the application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr David Kotevski on his own behalf

Ms Kirsten Bryant of MSS Security Pty Ltd

Hearing details:

2017.

Sydney

13 November

14 November

 1  See extra curial publication (1997) 9 Judicial Officers’ Bulletin Gleeson CJ at 25

 2   Shifts are normally for 12 hours

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