Bao Quan Chen v Kevin Hu, Xin Jin Shan Chinese Language & Culture School Inc - [2025] FWC 2974

[2025] FWC 2974

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Bao Quan Chen
v

Kevin Hu, Xin Jin Shan Chinese Language & Culture School Inc.

(AB2024/174)

COMMISSIONER HARPER-GREENWELL

MELBOURNE, 7 OCTOBER 2025

Application for an FWC order to stop bullying

Mr Baoquan Chen (Mr Chen) lodged an application with the Fair Work Commission pursuant to s.789FC of the Fair Work Act 2009 (the Act) for an order to stop bullying against Mr Kevin Hu (Mr Hu), the Principal of Xin Jin Shan Language and Culture School Inc (XJS).

Mr Hu denies the allegations and submits that Mr Chen has not been bullied at work and therefore the Application must be dismissed.

Background and procedural matters

It is helpful in this matter to set out some background facts before considering the specific grounds principally relied upon by Mr Chen in his application.

Mr Chen commenced employment with XJS in October 2019 as an Administration Coordinator reporting to Mr Hu and has since continued in his employment in various roles on a series of fixed term contracts. At the time of making his application Mr Chen held the position of Resource Support/Campus Yard Duty Officer.

Mr Hu commenced in his role as the Principal of XJS on 30 April 2004. Mr Hu is also a member of the XJS School Council along with four other members being Mr Haoliang Sun (Mr Sun) Chairman, Dr Zhian Sun, Ms Pan Zampogna and Ms Qiong Chen. Ms Jing Cao, Teacher at XJS and Mr Hu gave evidence in these proceedings. XJS and Mr Hu were represented by Irwell Law (formerly Employsure).

Mr Chen is the former Chairperson of the Western Chinese Language School incorporated (WCLS). In 2022 the Fair Work Ombudsman initiated legal action in the Federal Circuit and Family Court (FCFCOA) against the WCLS and Mr Chen for alleged underpayment of wages. The relevance of Mr Chen’s role with WCLS will later become apparent.

Mr Chen represented himself and filed a substantial amount of material in these proceedings of which a significant proportion was repeated. Mr Chen was in my view sufficiently accommodated due to not being represented. Mr Chen was given an opportunity to prepare his questions for cross-examination in advance and conducted a very lengthy cross-examination of the witnesses. I did not allow some of Mr Chen’s questions because either the evidence was not in contention, or I had formed the view that his questions were akin to fishing for information not related to his allegations or they were not relevant to the matters I needed to consider in the present application. Mr Chen raised another allegation at the start of proceedings, which I address separately in my conclusion.

Most of the evidence filed by Mr Chen was admitted without objection. Where Mr Chen provided evidence that had been translated from Mandarin (Chinese) to English using google translate, other than when identified in this decision, XJS did not object to the translation. Whilst I don’t repeat all of Mr Chen’s submissions and evidence in this decision, I have had regard to the evidence I consider relevant to the matters that I need to decide, and I have considered any objections to the evidence raised by either party.

During proceedings Mr Chen pressed to have his written transcriptions of a conversation he had recorded between employees without their knowledge or prior consent. XJS objected to some of that evidence being admitted. I allowed the objection pertaining to the covert recording of a conversation with Ms Cao and refused to admit that evidence for reasons set out later in this decision. Although Mr Chen was informed that I would not be admitting the evidence Mr Chen proceeded to raise the content of the covert recordings during his cross-examination of Ms Cao. Mr Chen was cautioned on several occasions about his line of questioning however in my view he feigned ignorance and continued to make submissions from the bar table about the covert recordings. I have properly considered the objection to the evidence and it is dealt with later in this decision,

Mr Chen made an application for an order for Mr Yang Zhigang and Mr Sun to appear and give evidence. I declined to grant the order for Mr Zhigang to appear as I was not persuaded by Mr Chen that the matters in contention to which he sought the evidence of Mr Zhigang went to the main matters that needed to be decided. I did however grant the second order and Mr Sun complied with the order and gave evidence in these proceedings. Mr Sun’s evidence about some of the allegations was at times inconsistent, however it is my view that Mr Sun was conflicted and at times concerned about offending either Mr Hu or more likely Mr Chen, and this may have contributed to the inconsistencies in his evidence.

Jurisdiction

Mr Chen has made an application for a stop bullying order. Section 789FD contains the meaning of when a worker is “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 behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
(b) That behaviour creates a risk to health and safety

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

The reference within s.789FD(2) of the FW Act, to the effect that the definition of “bullied at work” does not apply to reasonable management action carried out in a reasonable manner, is not an exclusion. But a reference for the avoidance of doubt. The reference to reasonable management action carried out in a reasonable manner, serves to provide guidance in the interpretation and application of s.789FD(1)(a), in circumstances in which it is alleged that management action such as performance management, disciplinary action, allocation of work, restructuring of the workplace and employer directions, constituted bullying. Assessment of reasonable management action carried out in a reasonable manner will require consideration of the following;

“[47] Section 789FD(2) of the FW Act is not so much an “exclusion” but a qualification which reinforces that bullying conduct must of itself be unreasonable. It also emphasises the right of management to take reasonable management action in the workplace. In its application, the provision comprises three elements:

• the behaviour (being relied upon as bullying conduct) must be management action;
• it must be reasonable for the management action to have been taken; and
• the management action must have been carried out in a manner that is reasonable.

[48] The Explanatory Memorandum refers to management decision and decisions about how work is to be carried out. This suggests that the term may be required to be given a wide meaning under s.789FD(2) and that the Legislature intended everyday actions to effectively direct and control the way work is carried out to be covered by the exclusion.

[49] Determining whether management action is reasonable requires an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time. Without limiting that assessment, the considerations might include:

• the circumstances that led to and created the need for the management action to be taken;
• the circumstances while the management action was being taken; and
• the consequences that flowed from the management action.
[50] The specific ‘attributes and circumstances’ of the situation including the emotional state and psychological health of the worker involved may also be relevant.
[51] The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’. In general terms this is likely to mean that:

• management actions do not need to be perfect or ideal to be considered reasonable;
• a course of action may still be ‘reasonable action’ even if particular steps are not;
• to be considered reasonable, the action must also be lawful and not be ‘irrational, absurd or ridiculous’;
• any ‘unreasonableness’ must arise from the actual management action in question, rather than the applicant’s perception of it; and
• consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances.[1]
[52] For the circumstances in s.789FD(2) of the FW Act to apply, the management action must also be carried out in a ‘reasonable manner’. Consistent with the approach above, what is ‘reasonable’ is a question of fact and the test is an objective one.
[53] Whether the management action was taken in a reasonable manner may depend on the action, the facts and circumstances giving rise to the requirement for action, the way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters.”[2]

If the Commission finds objectively there was bullying at work, the Commission must then assess, also objectively, whether there is a risk of the conduct continuing, with a further risk to health and safety. While requiring a causal link, the behaviour does not have to be the only cause of the risk, but a substantial cause of the risk, viewed in a common sense and practical way. A risk will be the possibility of danger to health and safety, and not necessarily actual danger, however the risk needs to be more than conceptual.[3]

After finding a person has been bullied at work, the Commission is vested with the discretion to make orders or not. An applicant’s own conduct is a matter that the Commission may consider relevant under s.789FF(2)(d) when considering the terms of an order.[4]

I now turn to deal with each of the grounds of alleged bullying relied on by Mr Chen.

Evidence and Factual findings

First incident of alleged bullying; Changes to Mr Chen’s employment contracts

Mr Chen submits the first instance of alleged bullying was a series of unauthorised changes to his position. Mr Chen submitted that Mr Hu has bullied him by changing the position title on his employment contracts each year and that these changes amounted to humiliation.

First and Second Contract

Mr Chen has been engaged by XJS in various positions through a succession of fixed term contracts since November 2019. The first contract (First Contract) accepted and signed by Mr Chen on 28 October 2019 was written in English and was for the position of “Administration Coordinator” for a fixed term from 1 November 2019 to 30 June 2020. Attached to the contract was a position description written in Mandarin (Chinese) with the English translated title of “Administrative Manager”. Mr Chen alleges there was an unauthorised change to the title in his first contract of employment. The sole basis for Mr Chen’s contention is a WeChat message sent by Mr Sun on 1 November 2019 announcing Mr Chen’s appointment as “Administrative General Manager”.

According to Mr Chen, on 28 October 2019, Mr Hu sent him a contract appointing him as the “School Administrative Manager”. Mr Chen says he discovered that Mr Hu had “secretly” altered his position in the First Contract from “Administrative General Manager” to “Administrative Manager”. Mr Chen submits it was the decision of the school committee to employ him as the “Administration General Manager”.

The second contract (Second Contract) received by Mr Chen was an offer of employment for a fixed term from 1 July 2020 to 30 June 2021 in the same position he previously held as Administration Coordinator. Mr Chen signed and agreed to the second contract on 28 June 2020 without raising any prior concerns with the XJS School Council, Mr Hu or Mr Sun. Mr Chen is aggrieved because his position title in the Second contract remained the same as the First contract.

According to Mr Hu, prior to Mr Chen’s appointment the XJS School Council had discussed his appointment and salary before approving his employment contract. He says XJS School Council agreed that Mr Chen would be employed as the “office manager”. Mr Hu says the XJS School Council agreed to employ Mr Chen as an office manager and the English title on Mr Chen’s contract was to reflect the Award that they had applied at that time.

It is uncontroversial that Mr Chen’s contract was issued and signed before Mr Sun announced Mr Chen’s appointment and at that time Mr Chen had not made any complaint or brought to Mr Hu’s attention any concerns. The first time Mr Hu became aware that Mr Chen had concerns about the first and second contracts was when he made his stop bullying application. Further, I note that Mr Chen raises no concern about the functions he was to perform in those roles, his concerns are limited to the position title. Six years after signing and accepting his employment contracts Mr Chen is now particularly aggrieved that his First and Second Contracts did not include the words “General and Manager”.

It is also uncontroversial that Mr Chen had not applied for a role at XJS and his employment came about because Mr Sun had proposed that XJS employ Mr Chen. The uncontested evidence is that Mr Sun as Chairperson of the XJS School Council had also set Mr Chen’s salary. There is no evidence before me that Mr Sun or the XJS School Council made a decision to engage Mr Chen in the role of “Administrative General Manager” before he was issued with his First Contract. There is no evidence before me that Mr Chen was promised a different role by either Mr Hu or Mr Sun or the XJS School Council. The factual circumstances are that Mr Chen was offered a fixed term position with XJS in the position of Administrative Coordinator as set out in the First Contract, he signed and accepted the First Contract as it was presented to him.

I also make the following observations about Mr Chen’s evidence pertaining to the first allegation, Mr Chen was prone to inflammatory statements, and I considered his perception was quite often different to the factual circumstances. I questioned Mr Chen about what I thought to be an incorrect translation he had provided for the position title on the First Contract. Mr Chen was insistent that on 28 October 2019, Mr Hu had sent him a contract appointing him as the “School Administrative Manager”. Whilst there may have been some language translation issues, for the avoidance of doubt there is no evidence before me that Mr Hu had ever issued an employment contract to Mr Chen for the position of “School Administrative Manager”. Mr Chen did eventually concede that he had not been appointed as the “School Administration Manager”.

Having considered Mr Sun’s and Mr Hu’s evidence pertaining to the First Contract, the evidence supports that XJS School Council had discussed Mr Chen’s job title and the requirements of his role during a School Council meeting in 2019 and it was decided to employ Mr Chen as an Administrative Manager.[5] Mr Chen’s role title on his first employment contract was never altered and the evidence before me does not support a finding that Mr Hu “secretly” changed the title on Mr Chen’s First Contract.

Mr Chen is wrong about his assertion that Mr Sun’s WeChat message is evidence that Mr Hu “secretly” changed his position title. Mr Chen also incorrectly infers that Mr Sun’s WeChat message is evidence that the XJS School Council had made a decision that his position title should have been “Administration General Manager”. Mr Sun’s WeChat message was not intended to convey that a different decision had been reached by the XJS School Council. The reason the title of Mr Chen’s role in the WeChat message was not consistent with the employment contract was because Mr Sun was not concerned with the title of the role and held the view that the English titles “general manager” and “manager” are quite similar and in his opinion, he did not see any major difference in using the two terms. Therefore, I am not satisfied that there is any evidence of bullying conduct by Mr Hu pertaining to the First Contract.

Turning to the inconsistencies in the role titles between the employment contracts and the position descriptions. The position title on the First Contract is different to the position description which was issued in conjunction with the First Contract. I have formed the view that the inconsistency in the position titles does not lend itself to support Mr Chen’s assertion that Mr Hu “secretly” changed his title to bully him. It simply reflects the evidence before me that neither Mr Sun, the XJS School Council or Mr Hu and in the absence of any particular Human Resource expertise, consistently applied the position title across all the engagement paperwork received by Mr Chen. I accept Mr Hu’s evidence that the inconsistency between the position description and the First Contract was simply because he had attempted to use what he referred to as an English/Australian suitable position title that would reflect the Award at that time.

I am not persuaded by Mr Chen’s assertion that Mr Hu “secretly” altered his First Contract. I do not consider the first allegation to be an incident of bullying behaviour.

Third and Fourth Contract

The third contract (Third Contract) signed and accepted by Mr Chen on 4 February 2021, was again for the position of Administration Coordinator for a fixed term from 1 January 2021 to 31 December 2021. The attached “job description” was written in both English and Mandarin (Chinese). The English title on the accompanying position description was Administration Coordinator, the title written in Mandarin (Chinese) was Administrative Manager. Mr Chen signed and accepted the contract on 4 February 2021.

Mr Chen submits that Mr Hu made unauthorised changes to his job description by changing the English title of his position from “Administrative Manager” to “Administration Coordinator”. Mr Chen submits he had no choice but to accept the “unfair treatment”. Mr Chen says he signed the Third Contract against his will.

Mr Hu submits on 20 December 2020, the XJS School Council conducted a meeting, and it was decided to keep Mr Chen’s job title as Administration Coordinator for 2021. Mr Hu says Mr Chen signed and returned the employment contract without raising any concerns.

Mr Sun confirmed that the XJS School Council did discuss Mr Chen’s role. He says however it never really clearly identified the English title for Mr Chen’s role. Mr Sun said the XJS School Council didn’t have any serious discussions about Mr Chen’s actual role title and that he didn’t really pay attention to the issue himself. Again, Mr Sun says that his only concern was whether Mr Chen signed his employment contract and if he didn’t sign or if he raised any concerns then he would have a serious discussion.

The fourth contract (Fourth Contract) signed and accepted by Mr Chen was for a fixed term period from 1 January 2022 to 31 December 2022 in the position of Office Manager.

Mr Hu submits that on 28 November 2021, the School Council decided to accept advice from its employment consultant that it should be applying the Educational Services (Schools) General Staff Award 2020 (Educational Services Award). According to Mr Hu, as a consequence of adopting the Educational Services Award, the XJS School Council decided to change Mr Chen’s position title in his employment contract to Office Manager. Mr Chen’s responsibilities were not altered however he received a pay increase.

On 4 February 2022, Mr Chen made an inquiry to Mr Hu about having to work on Saturdays stating that he had previously only worked Monday to Friday. Mr Hu responded stating that the new role requirement was for someone to work on Saturday’s. Mr Hu explained that the contract Mr Chen had signed and accepted required him to work on Saturdays and was issued in accordance with the decision of the XJS School Council. Mr Chen responded stating that he had accepted and signed the contract because he trusted the “schools decision” and stated that if there were to be future changes he would need to be consulted.

On 5 February 2022, Mr Chen sent a message to Mr Sun informing him that he had raised a concern about the Fourth Contract he had signed. Mr Chen stated “I really don’t care about the titles and benefits because I am grateful and satisfied with my work at the school”. Mr Chen appeared to be more concerned about Mr Hu discussing his work and other matters “in public groups”. Mr Chen then sent another message to Mr Sun complaining that his position title had changed in the Fourth Contract after it had already been signed and accepted.

Mr Sun’s evidence is that he responded to Mr Chen asking if he had signed the contract. Mr Sun says that he told Mr Chen that if he had signed the contract then he had accepted the changes to his position and he took no further action. It appears that the complaint was raised with Mr Sun and not Mr Hu and Mr Sun did not consider the matter any further. Mr Chen took the matter no further.

Mr Hu produced evidence in which the ongoing employment of Mr Chen and other employees including their salaries and position titles was discussed at the XJS School Council meeting. The document produced which details each of the roles for discussion including Mr Chen’s was presented at the XJS School Council meeting by the secretary Ms Li Hong. Mr Hu says the Committee members were asked to review the document because it formed the basis for the new employment contracts. Subsequent, to the XJS School Council’s approval the contracts were issued.

The factual scenario pertaining to the change in the title in the Third and Fourth Contract originates from complaints that were the catalyst to XJS seeking external employment law advice regarding its compliance with its statutory obligations. Whilst I make no findings about the advice, the evidence before me is that Mr Hu acted on that advice with XJS School Council approval. Mr Hu consulted with the XJS School Council and the XJS School Council approved the changes to the titles of the contract. The title in Mr Chen’s contract was amended to reflect the relevant Award before it was issued and accepted by him. Regardless, the fact remains Mr Chen was presented with a new employment contract some time after his previous fixed term contract came to an end. It was a matter for Mr Chen as to whether he agreed to accept the new offer of employment or not. Mr Chen accepted the new offers of a fixed term contract and now he retrospectively seeks to argue that the changes to those contracts were bullying action by Mr Hu.

Before I conclude my findings about the Third and Fourth Contracts I make the following observations. It is clear on the evidence before me that Mr Chen has a close relationship with Mr Sun and he had raised the concerns that he held about the position titles in the contracts after he had signed and accepted them. Mr Sun is the Chairman of the XJS School Council and after receiving Mr Sun’s response it was Mr Chen’s decision to take no further action, it is unreasonable for Mr Chen to now blame Mr Hu for the decision and actions of Mr Sun.

Whilst I accept that it is not ideal that Mr Chen has been engaged on a series of fixed term contracts, there is no evidence before me that suggests he has ever been coerced into accepting each of the roles offered to him by XJS. Mr Chen willingly accepted the new positions before commencing his employment under the new fixed term contracts. Although I have formed the view that on a closer examination of the roles there may be some issues with the nature of the successive employment contracts and Mr Chen may have a different argument about his employment status, this was not an argument advanced by either party.

I am not persuaded that Mr Hu’s efforts to ensure XJS employment contracts were compliant with the Award could be considered as bullying. Mr Hu acted on the advice provided and it was reasonable for him to do so. Even if Mr Hu had acted on incorrect advice, I would not consider his actions to be anything other than reasonable management action. As often is the case, not all employers expertly administer the advice they have received and, in this case, I do not consider Mr Hu’s lack of expert knowledge in the area of employment contracts to be bullying behaviour against Mr Chen. I am not persuaded that Mr Hu “made unauthorised changes” to the title on Mr Chen’s Third or Fourth Contract. Mr Hu was authorised to make the changes. He had not acted on his own, the changes were approved by Mr Sun and the XJS School Council prior to the issuing of the contracts which were subsequently accepted by Mr Chen.

Fifth and Sixth Contracts

The fifth contract (Fifth Contract) signed and accepted by Mr Chen on 4 February 2023 was for a fixed term from 4 February 2023 to 3 December 2023 for the position of Executive Manager of the School. Mr Chen appears to not have any contention about this contract.

The sixth contract (Sixth contract) signed and accepted by Mr Chen on 15 January 2024 was for a fixed term from 1 January 2024 to 31 December 2024 for the position of Resources support/Campus yard duty officer. The changes to the Sixth Contract are dealt with later in this decision.

Second incident of alleged bullying: Printing of the third-grade expansion workbooks

The second incident of alleged bullying relied upon by Mr Chen is in relation to the printing of the “Third Grade Workbooks” (the workbooks). It appears Mr Chen’s main contention is that he was not permitted to attend a meeting during the investigation into allegations against Mr Pan, and he was not informed of the outcome of that investigation.

It is uncontroversial that on 1 March 2022, Mr Chen received a request to print 300 copies of the Third Grade Expansion Workbooks. On 4 March 2022, Mr Hu instructed Mr Pan to collect the workbooks from Mr Chen and complete the collection form confirming he had done so. On 5 March 2022, the grade 3 teachers notified Mr Hu that they had not received the Workbooks.

On 19 March 2022, Mr Hu wrote to Mr Chen stating that the grade 3 students had not yet received the workbooks and requested that he arrange for them to be printed and distributed the following week. Although Mr Hu had not accused Mr Chen of doing anything wrong, Mr Chen provided the following written response:

“Kevin:
I was afraid that something would go wrong in the management process and the punishment would not be clear, so I strictly carried out the procedures for picking up, delivering and signing the goods. This is the receipt form at the time, and we printed it as scheduled. Teacher Pan Zhiyan signed for it above. Please ask him to look it up. He can’t shirk responsibility like this in the face of facts.”

Mr Hu says at the time of making the request for the workbooks to be printed he explained to Mr Chen his primary concern was that the workbooks were printed and distributed on time. However, Mr Chen had refused to print the workbooks insisting that Mr Pan be found at fault. After Mr Chen had refused to print the workbooks, Mr Hu made inquiries to ascertain what had happened to the missing printed workbooks. Mr Hu reviewed the collection form and confirmed that Mr Pan had signed for the collection of the workbooks along with other materials being a total of 1680 items, however Mr Chen had not co-signed as the person checking that the materials collected were correct and all accounted for.

It is not in contention that at time Mr Hu requested for Mr Chen print the workbooks he did not blame either Mr Pan or Mr Chen for the absence of the workbooks. Mr Hu says he made repeated requests for Mr Chen to print the workbooks however he continued to refuse. Consequently, on 28 April 2022, Mr Hu notified Mr Sun of the events that had occurred between 4 and 19 March 2022.[6] Mr Sun was also informed that both Mr Hu and Ms Wang had instructed Mr Chen on separate occasions to print the workbooks however he had refused to do so.

Mr Sun says he contacted Mr Chen and asked about the workbooks, Mr Chen informed Mr Sun that he had since printed the workbooks for the second time. Mr Sun contacted Mr Hu and informed him that Mr Chen had printed the workbooks for the second time, he then considered the matter resolved. According to Mr Hu, Mr Sun informed him that he had told Mr Chen it was not right to refuse Mr Hu’s instruction to print the workbooks.

Mr Chen initially refused to comply with Mr Hu’s request to reprint the workbooks. He also insisted that the matter of the missing Workbooks be investigated, and an investigation was conducted. Mr Chen contacted Mr Hu on a number of occasions for an update on the investigation. According to Mr Hu on each occasion he informed Mr Chen that he would be contacted if he was required to participate in the investigation. Mr Chen does not appear to dispute this.

On 3 May 2022, Mr Hu emailed Mr Chen to advise that he had consulted with a “labour and management consulting company” and was following its advice pertaining to the allegation that Mr Pan had already received the original prints of the workbooks, which the teachers did not receive. He advised Mr Chen that amongst other things Mr Pan would be notified that he was to attend a meeting regarding the allegations against him. Mr Chen was advised that he could not or was not required to attend that meeting. Mr Chen appears to have taken offence to being told he couldn’t attend the meeting with Mr Pan and Mr Hu. Mr Chen became concerned that he was a “suspect needing to be avoided”. Mr Chen was also asked to provide the printing records from the printer however for reasons unknown he refused. Mr Hu says that after conducting the investigation and in the absence of the print records he was not able to determine who was at fault. He notified the XJS School Council, and no further action was taken.

Before concluding my findings on the second allegation I make the following observation, Mr Chen’s written responses were often disproportionate to Mr Hu’s actions, requests or instruction. In his correspondence to Mr Chen regarding conducting the investigation Mr Hu made no allegations or criticism towards Mr Chen, he simply followed the external advice he had received which was reasonable in my view. Further at no time either prior to or during the investigation into the missing workbooks had Mr Hu ever accused Mr Chen of any wrongdoing and there has never been any disciplinary action taken against him. I also note that Mr Chen had failed to comply with a reasonable management direction by refusing to provide the printer records however no disciplinary action was taken against him for his non-compliance with a reasonable management direction.

Whilst I make no finding about the adequacy of that legal advice provided to Mr Hu, Mr Hu is not an expert in human resources and I accept that he was acting in accordance with how he understood the advice provided. Mr Chen’s grievance was that he was not permitted to attend that meeting between Mr Hu and Mr Pan. In my view, Mr Chen, without reasonable cause became suspicious about Mr Hu’s intentions when he was informed that he was not permitted to attend the interview with Mr Pan. Given it was Mr Chen who made the allegations against Mr Pan it was perfectly reasonable that he was not in attendance during the investigation interview. If Mr Chen believes that he was entitled to attend the meeting with Mr Hu and Mr Pan during the investigation into the allegations against Mr Pan, he is mistaken. Regardless of Mr Chen’s belief and his unfounded suspicions about Mr Hu, it was perfectly reasonable for Mr Hu to inform Mr Chen that he was not permitted nor required to attend the interview with Mr Pan.

Mr Chen is also aggrieved that he was not informed about the outcome of the investigation. Whereas Mr Hu holds the view that he had already informed Mr Chen on several occasions that he was not required to be part of the investigation. Mr Hu advised XJS School council of the outcome, however it appears that he did not inform Mr Chen. Regardless, Mr Chen insisted on more than one occasion on knowing what the outcome of the investigation was. Mr Hu did not respond in writing to Mr Chen’s ongoing persistence for information about the outcome of the investigation because he had formed the view that the matter had been dealt with and the XJS School Council had been notified of the outcome. Regardless, in my view had Mr Hu or the XJS Council informed Mr Chen that the investigation had been concluded Mr Chen would not have continued to seek answers.

Whilst I accept that Mr Hu was acting on the advice he had been provided by the employment and labour consulting company, it would have been reasonable to advise Mr Chen that the XJS School Council had been advised of the outcome and no further action was being taken. However, I have formed the view that Mr Hu’s failure in process could not be considered to be bullying in the context that Mr Chen alleges.

Third incident of alleged bullying: Public holiday benefits

Mr Chen alleges that Mr Hu had treated him differently to Mr Pan by unfairly denying him access to retrospectively apply for leave for the Queen’s Birthday public holiday which was on 14 June 2022. Mr Chen also appears to be aggrieved by the letter sent from Mr Hu to Mr Chen on 17 April 2023 in which he raises his concerns about Mr Chen’s disregard for following the correct procedures for applying for leave.

It is not necessary for me to set out all of the evidence pertaining to the alleged third incident of bullying. The relevant facts are as follows. On 8 March 2023, Mr Chen was absent from work. That same day he emailed Mr Hu notifying him he was taking a day off in lieu of the previous year’s Queen’s Birthday Public Holiday (Monday, 14 June 2022).

That same day Mr Hu provided the following written response:

“Hello Baoquan!
According to your 2022 contract, your working hours are Tuesday, Wednesday, Thursday, Friday and Saturday. The Queen’s Birthday Public Holiday is on Monday, which is your day off, and there is no compensatory leave. Please understand.
Therefore, you need to apply for leave today for financial record.
Thank you!”

Mr Chen was aggrieved by the response he received and proceeded to challenge Mr Hu’s decision emailing him on numerous occasions requesting amongst other things access to the employment law advice he had received and direct access to the employment lawyers who were providing the advice. Mr Chen sent multiple emails in one day regarding the same issue and confronted Mr Hu in person in the office. Consequently, Mr Hu sent a more detailed response again reiterating that he had obtained and was acting on the advice received. Mr Hu explained that because Mr Chen worked from Tuesdays to Saturday and because the public holiday did not fall on his ordinary working day and he was not required to work on the Monday, he was not entitled to be paid for the public holiday. Mr Hu reminded Mr Chen that he had previously sent emails to all full-time and part-time employees concerning the issue. In response Mr Chen again sent multiple emails often in short succession to Mr Hu challenging his decision and again requested access to the legal advice provided by the consultants which Mr Hu declined.

Mr Chen disregarded Mr Hu’s decision and becuase of Mr Chen’s conduct, on 17 March 2023, Mr Hu wrote to Mr Chen advising that he had raised the issue with Mr Sun and that Mr Sun would meet with Mr Chen when he was to attend the office the following week. Mr Sun attended the office the following week, however Mr Hu was away and Mr Sun did not meet with Mr Chen.

Mr Chen again sent numerous emails and text messages to Mr Hu about the issue of the public holiday. On 25 March 2023, Mr Hu provided Mr Chen with a letter from the legal consultants explaining the decision regarding public holidays. This did not satisfy Mr Chen so later on that same date he wrote to Mr Hu stating that if he was not entitled to be paid for the public holiday then Mr Pan should not be entitled to be paid either and that Mr Pan should have his personal leave deducted.

On 28 March 2023, Mr Chen sent an email to the XJS School Council complaining about Mr Hu’s decision regarding his request to be compensated for the public holiday. Mr Chen requested that the XJS School Committee “consult, discuss and make fair decision based on the issues he raised”. Mr Chen wrote that he would accept the decision made by the XJS School Council.

On 29 March 2023, Mr Sun and Mr Hu met with Mr Chen. During the meeting Mr Chen was informed because the public holidays fell on days that Mr Chen did not ordinarily work, he was not entitled to an additional paid day of leave to compensate for Queens Birthday Public Holiday. Mr Sun and Mr Hu suggested the matter be resolved by Mr Chen submitting a leave application to be paid personal leave for the day he was absent on 8 March 2023. Mr Chen agreed and the following day, Mr Hu provided Mr Chen with a leave application to be completed and returned. On 30 March 2023, Mr Chen submitted a completed leave request form for the 8 March 2023 absenteeism.

On 17 April 2023, Mr Hu wrote to Mr Chen thanking him for supporting the schools leave system and based on the advice of the consultant from Employsure he was providing him with a letter. The content of the letter is as follows:

“Further to our discussion held on 29^th March 2023, I am writing to underline my concerns and confirm the outcome of that discussion.
As you are aware the topic of our conversation was your failure to attend work on the 8^th of March without approved leave. The Xin Jin Shan Chinese Language and Culture School requires that each employee lodge all leave applications with reasonable notice and as soon as practicable. If you fail to make the appropriate application, you are not entitled to take the leave and you may be the subject of disciplinary action.
This letter is to be treated as confirmation that I have discussed my concerns with you and that you are expected to make every effort to address the shortcomings that have been identified.
This letter is not intended to be a formal warning and does not form part of the company’s disciplinary procedure; however, it will be kept in you personnel file and thus takes the form of what is considered reasonable management instruction.
It is essential that you follow the correct process when taking leave. 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. Should these areas of concern not improve, you actions may be considered misconduct and subject you to disciplinary action
If you have any enquiries in relation to this matter, please contact me…”

Mr Chen took offence to the letter and on 24 April 2023, Mr Chen replied to Mr Hu asking that he provide the letter in Chinese and a second email asking if the consultants had sought Mr Hu’s opinion before drafting the letter. Mr Hu responded to the first email. Mr Chen once again sent “many” emails to Mr Hu on the same subject however Mr Hu chose not to respond because he was not going to provide a different answer to the matter. Mr Hu had formed the view that Mr Chen was intentionally being antagonistic.

Mr Chen then wrote a complaint to the XJS School Council. It is not necessary for me to repeat the content of that complaint in full other than to say that amongst other things, Mr Chen demanded answers to whether Mr Hu’s correspondence was representative of the XJS School Council’s view. He was aware that Mr Pan was allowed to take the public holiday off and therefore it was his opinion he should be able to do the same, Mr Chen complained that Mr Hu had not given him direct access to the consulting company that was providing advice on employment law matters to the school and that he considered the correspondence received from Mr Hu on 17 April 2023 was intended to “insult, warn, threaten and bully” him. It is unclear if the XJS School Council responded however Mr Sun seems to have decided that the matter was resolved when Mr Chen lodged his leave application. It is however clear that Mr Chen had decided the matter was not resolved and he made a further complaint to the Community Languages Victoria Incorporated Executive Director on 10 May 2023. It is unclear what the outcome of that complaint was.

It is necessary for further context to make the following observation before I make my findings about the third allegation. The evidence before me is that after having had to deal with past complaints about XJS to the Fair Work Ombudsman about matters of employment law compliance, XJS engaged an external employment law firm with which it consults in order to ensure future compliance. One of those matters of non-compliance was Mr Pan’s terms of employment. Regardless, Mr Pan is considered to be a full-time employee who works Monday to Friday and was entitled to the public holiday. Further, Mr Chen is subject to ongoing litigation pertaining to the Western Chinese Language School for alleged employment law related non-compliance matters. Mr Hu did not consider it appropriate for Mr Chen to have access to XJS legal consultants at that time. Mr Hu was under no obligation to give Mr Chen access to XJS legal consultants. Mr Hu was also within his rights to seek advice about the public holidays and act on that advice. He had no obligation to provide Mr Chen with a copy of that advice although it appears that he chose to do so in an attempt to manage Mr Chen’s unreasonable behaviour.

I have formed the view that Mr Chen was being opportunistic when he notified Mr Hu he was taking a day of in lieu for a public holiday from the year prior. I have formed the view that in all of the circumstances pertaining to Mr Chen’s complaint about his public holiday entitlements his conduct could not be considered the acceptable conduct of a reasonable person. I consider Mr Hu’s responses to have been appropriate management responses, and he has been extraordinarily patient showing considerable constraint towards Mr Chen whose conduct can only be described as antagonistic. It is my view that Mr Chen unreasonably challenged Mr Hu’s decision based on his incorrect belief that he was entitled to be paid for a public holiday that did not fall within his ordinary working days. Mr Hu in my view responded appropriately by informing Mr Chen that he had sought external advice and as previously stated it was not unreasonable for him to refuse to provide a copy of the correspondence pertaining to that advice received from the employment law consultants.

When Mr Chen continued to be antagonistic, Mr Hu reached out to Mr Sun for support. My observation is that when it comes to issues of compliance for employment law related matters at XJS, Mr Sun appears to assume some if not all matters can be resolved informally. In his own words he does not always concern himself with the detail. On this occasion Mr Sun again attempted to resolve the matter informally and a resolution was reached as to how the leave sought by Mr Chen would be characterised. Mr Hu then took what I would consider to be reasonable management action by issuing a request for Mr Chen to reasonably comply with XJS’s leave procedures in the future. I do not consider Mr Chen’s conduct in response to Mr Hu’s direction to be conduct of a reasonable person. I consider Mr Chen’s response to the reasonable management action taken by Mr Hu to have been completely disproportionate. I accept Mr Hu’s evidence that when he issued a communication to all staff about public holiday leave entitlements Mr Chen took it as an opportunity to unreasonably fabricate circumstances targeting Mr Hu. The evidence supports a finding that Mr Hu was simply performing his role as Principal whilst attempting to comply with the employment law advice he had received on the issue of public holidays. I am not satisfied that Mr Hu’s conduct in this instance could be considered bullying. I consider Mr Chen’s allegations to be baseless.

The fourth incident of alleged bullying: Ms Jing Cao’s work schedule and complaint

Mr Chen alleges that Mr Hu fabricated a complaint by Ms Cao in an attempt to “frame” and bully him.

The facts pertaining to this allegation are as follows. According to Mr Chen’s employment contract and position description for the relevant period he held the position of Office Manager and was responsible for supervising the attendance of administration staff in the head office. For reasons that are not clear, Mr Chen decided to make inquiries about Ms Cao’s attendance at work. Ms Cao reports to Mr Huang and he reports to Mr Hu, she does not report to Mr Chen. Mr Chen sent Ms Cao an email on 5 July 2023 asking about her work schedule for the holidays. Ms Cao replied on 7 July 2023 stating that she was working her usual hours during the holidays. On 8 July 2023, Mr Chen again emailed Ms Cao inquiring about her office attendance for the week prior. On 12 July 2023, Mr Chen again emailed Ms Cao asking if she had worked that day. Ms Cao replied that same day informing Mr Chen she had worked. Mr Chen sent the following reply:

“Teacher Cao,
Could you please tell me if during your two-week vacation, “normal work” refers to working in the office or working from home?
I just want to understand nothing else.
Thank you!”

On 18 July 2023, Ms Cao emailed Mr Hu in which she raised concerns about Mr Chen’s conduct. She stated that Mr Chen had been asking her colleagues about her attendance. Ms Cao stated that she felt uncomfortable because she did not report to Mr Chen. Ms Cao sought to clarify if Mr Chen was acting on his own or if he was being instructed to make inquiries about her work arrangements. In the email Ms Cao also sought to confirm if she was required to provide her overtime and sick leave requests to Mr Chen.

On 20 July 2023, Mr Chen again emailed Ms Cao asking if she had attended head office for work the previous day and stated that he was still waiting for her to reply to his previous email.

On 8 August 2023, Mr Hu contacted Mr Sun and informed him about Ms Cao’s complaint with the XJS School Council. On either 9 or 10 August 2023, Mr Sun contacted Mr Chen. Mr Chen and Mr Hu have a different understanding of what was discussed. Mr Hu says that Mr Sun had conveyed that he had informed Mr Chen that he was not required to investigate other colleagues’ attendances and that if he had any issues, he should raise them with Mr Hu. Mr Chen does not deny that Mr Sun was making inquiries into an alleged complaint by Ms Cao.

On 11 August 2023, Ms Cao attended the printing room to print some exam papers. At the time Mr Chen was utilising the printer. Ms Cao submits Mr Chen was aggressive and harassed her in the printing room about the complaint she had made, Mr Chen denies that the conduct occurred. Ms Cao was not aware that at some stage during the discussion Mr Chen had begun to record the interaction. According to Ms Cao when she arrived at the printing room Mr Chen was using the printer. After waiting approximately 90 minutes Mr Chen was still using the printer. Ms Cao asked how long he would be, and Mr Chen initially refused to speak to her because he was eating his lunch. Ms Cao says when she returned and again approached Mr Chen he started pointing his finger at her and yelled at her, asking why she had complained to the School Council about him. Mr Chen denies that this had occurred. Ms Cao says she began crying and Mr Chen continued to yell at her before she left the room.

Ms Cao approached Mr Hu and recounted what had occurred. Mr Hu then rang Mr Sun and explained to him what Ms Cao had told him, before passing the phone to Ms Cao and allowing her to explain to Mr Sun what had happened in the printing room. Ms Cao’s evidence is that she believed Mr Chen was harassing her. She stated she felt scared and frightened during her interaction with Mr Chen.

Later that day Mr Chen wrote to Mr Hu requesting a copy of Ms Cao’s complaint and threatened to “file a lawsuit” against Ms Cao for allegedly false accusations against him. On 15 August 2023, Mr Hu responded to Mr Chen’s email stating that Mr Sun had dealing with the situation and that he was unable to provide any further response.

On 17 August 2023, Mr Chen approached Mr Hu in person requesting that he provide to him the specifics of Ms Cao’s complaint. Mr Chen says Mr Hu refused to discuss the complaint with him. Mr Chen says Mr Hu fabricated the incident to create a false basis for later accusing him of harassing Ms Cao.

I note that the premise for Mr Chen’s bullying allegation against Mr Hu is that he fabricated Ms Cao’s complaint against Mr Chen. However, in his submissions and evidence in this matter Mr Chen now alleges that the conduct complained about by Ms Cao did not occur and that Mr Hu has bullied him by providing Ms Cao’s complaint to the XJS School Council.

Mr Hu did not fabricate Ms Cao’s complaint. Ms Cao sent an email raising concerns about Mr Chen’s conduct towards her on 18 July 2023. Mr Chen’s wrongly contends that Mr Hu had incorrectly characterised Ms Cao’s email as a complaint because she didn’t specifically use the word “harassment” in her email. Mr Chen’s view is ill-informed, just because Ms Cao did not specifically use the term harassment in her email, this does not mean that it wasn’t a complaint about Mr Chen’s conduct. Ms Cao’s evidence is that she had made a complaint to Mr Hu about Mr Chen because she felt harassed by Mr Chen’s behaviour towards her, however in an attempt to allow Mr Chen to “save face” she carefully worded her email to Mr Hu. Ms Cao believed that when she made her complaint XJS would appropriately manage her complaint. Ms Cao lodged a subsequent complaint externally however for reasons that are not entirely clear she withdrew her external complaint. I found Ms Cao to be a reliable witness and I accept her evidence that she felt threatened by Mr Chen’s conduct and his conduct was the catalyst for the complaint she made against him.

I also accept Ms Cao’s evidence that after raising her concerns about Mr Chen’s conduct when she approached Mr Chen in the print room he asked her why she had complained about him and started yelling and pointing his finger at her. Mr Chen says that during the exchange in the print room Ms Cao denied that she made a complaint and therefore Mr Hu had fabricated that she made a complaint. As stated earlier, the evidence supports a finding that Ms Cao did make a complaint about Mr Chen’s conduct. She also made an external complaint about his conduct. I accept Ms Cao’s evidence that when Mr Chen approached her in the print room and asked her why she complained about him she was frightened, and her first instinct was to diffuse the situation by telling Mr Chen she hadn’t complained. Ms Cao’s evidence is that she left the print room in a distressed state and spoke to both Mr Hu and Mr Sun about what had happened.

Before concluding my findings about the fourth allegation of bullying it is necessary to address my decision to uphold the objection to the admittance of the covert recording pertaining to the fourth allegation. Mr Chen sought to have a transcript admitted that he had produced of a covert recording he had taken of a conversation between Ms Cao and himself another work colleague without seeking their permission. The reason Mr Chen sought to have the transcript admitted as evidence is because it proved that Ms Cao says that she did not make the complaint. XJS objected to the admission of the evidence on the basis that it would be procedurally unfair as it had not been put on notice that Mr Chen was going to seek to rely on the evidence, XJS had not been provided with a copy of the recording prior to proceedings, and it could not verify Mr Chen’s transcription was accurate. XJS relied on the decision of the then Commissioner Cloghan in Mr Schwenke v Silcar Pty Ltd T/A Silcar Energy Solutions[7] in which the Commissioner expressed the following about the applicant secretly recording a meeting with its employer:

“[60] Honesty, obedience, diligence, competence and due care are the foundation stones of an employee’s duty to an employer. It is sometimes wrapped up under the term “good faith” or “duty of fidelity”.”

The then Commissioner went on to find that Mr Schwenke did not seek or obtain the permission of the meeting participants to have the meeting recorded and that the omission raises two issues for employers generally. In the first instance, the employee is not being open and transparent in their actions with the employer. Secondly, if such an action becomes known to the employer, the necessity of trust and confidence in the employment relationship is undermined. Henceforth, the integrity or probity of the employee’s actions is not free from doubt for the employer.

I agree with the view formed by the then Commissioner that secretly recorded discussions are objectionable because one party is being deceptive and purposefully misleading the other party. I also consider secret recordings of a conversation with a co-worker or recordings of other co-workers conversations without their consent to be highly inappropriate and it is unfair to those who are being secretly recorded.

XJS also submits that the recording was illegal under the Surveillance Devices Act 1999. Deputy President Colman considered the application of the Surveillance Devices Act 1999 in Tawanda Gadzikwa v Australian Government Department of Human Services[8] and observed that the Surveillance Devices Act in Victoria prohibits a person from using a listening device to record a private conversation to which the person is not a party, without the express or implied consent of each party to the conversation. Relevantly the Deputy President expressed the following view:

“[83] Unless there is justification, I consider the secret recording of conversations with co-workers to be highly inappropriate, regardless of whether it may also constitute a criminal offence in the relevant jurisdiction. The reason it is inappropriate is because it is unfair to those who are secretly recorded. They are unaware that a record of their exact words is being made. They have no opportunity to choose their words carefully, be guarded about revealing confidences or sensitive information concerning themselves or others, or to put their best foot forward in presenting an argument or point of view. The surreptitious recorder, however, can do all of these things, and unfairly put himself at an advantage. Moreover, once it is known that a person has secretly recorded a conversation, this is apt to produce a sense of foreboding in others, an apprehension that they must be cautious and vigilant. This is potentially corrosive of a healthy and productive workplace environment. Generally speaking, the secret recording of conversations with colleagues in the workplace is to be deprecated.”

Regardless of whether or not Mr Chen was using a listening device to record the private conversation, I share the views of the Deputy President. Further, the transcript produced by Mr Chen was a selected portion of the recorded conversation and not the entire conversation. I consider the evidence Mr Chen sought to rely on without the full context of the conversation he is alleged to have recorded has little probative value because in her evidence Ms Cao does not deny that she said to Mr Chen that she had not made a complaint. I accept Ms Cao’s evidence that she had said this because Mr Chen’s conduct was aggressive and she felt threatened.

The evidence supports a finding that Mr Hu did not create or fabricate a complaint against Mr Chen. The complaint Ms Cao raised about Mr Chen was as a consequence of Mr Chen’s unacceptable conduct towards her. Mr Hu acted appropriately by bringing Ms Cao’s complaint to the attention of the XJS School Committee. I have formed the view that Mr Hu’s conduct in this matter was reasonable management action and did not constitute bullying against Mr Chen.

Fifth allegation of bullying: Management of Blip

Mr Chen alleges Mr Hu has deprived him of his contractual rights by not allowing him to manage Blip, an application used to record the attendance of staff. Mr Chen also alleges Mr Hu engaged in corrupt behaviours however he has not provided specific details or evidence to support his allegation.

By way of background, prior to the Covid Pandemic, XJS recorded staff attendance on a spread sheet which was a manual record managed by Mr Chen. It is not in contention that during the Covid Pandemic XJS School Council moved to trial an online self-attendance recording app called Blip. On 9 May 2023, following a successful trial, Mr Hu emailed all staff to announce that the XJS School Council had approved the “Blip App” for everyone’s use. After a successful transition to the electronic recording of staff attendance, Mr Chen was informed that he was no longer required to keep his manual attendance records.

Shortly after receiving the email Mr Chen responded to the email stating that because attendance work was his responsibility, he required Mr Hu to provide a copy of the attendance record “for each staff member every day”. It was observed that Mr Chen was aggrieved at not being involved in the implementation or management of the new electronic time keeping system Blip.

On that same day, Mr Hu replied to Mr Chen stating that the records in Blip included personal details of staff that did not report to him and he would not be providing him with the reports. Further, Mr Hu had formed the view that Mr Chen’s position description only required him to supervise the attendance of administration staff in the head office, and he did not require the attendance records of all employees in order to perform that function.

Once again Mr Chen responded immediately to the correspondence objecting to Mr Hu’s decision as the Principal of XJS. Mr Chen accused Mr Hu of amongst other things, violating the “work contract” and depriving him of his “legal right to reasonably perform” his duties.

Later that same day Mr Chen sent an email to the XJS School Council complaining about Mr Hu’s decision. It is unclear if the XJS School Council provided a response.

On 21 June 2023, Mr Chen sent a response to Mr Hu’s email sent to all staff about using mobile phones to record attendance in the Blip app, ordinary hours, overtime and he advice about safety issues concerning one of the rooms. Mr Chen wrote to Mr Hu suggesting he publish the attendance report each week as an incentive for employee compliance and improve school management. Mr Chen proceeds to step out a number of concerns and views he has about staff attendance compliance and the Blip app.

On 28 September 2023, Mr Hu emailed staff informing them of the XJS School Council’s decision to return staff to the office post Covid. Mr Chen subsequently emailed staff advising amongst other things that he would be “strictly implementing the school boards decision and will be resuming paper-based attendance sign-in and sign out system.” Mr Chen directed all staff to attend the administration office and sign in at the commencement of the day and sign out at the administration office at the end of the day.

After receiving a number of complaints Mr Hu sent out further correspondence to make clear to staff that they were only required to use the Blip app to record their attendance. In response Mr Chen sent another complaint to the XJS School Council stating amongst other things that he thought all the attendance records should be published. In response to Mr Chen’s email to the XJS School Council, Mr Hu again reiterated that Mr Chen was responsible for the supervision of administration staff and not the whole school and he was to report any concerns about staff attendances directly to Mr Hu. Mr Hu reiterated that Mr Chen cannot force employees that work outside of the administration office to attend the office and manually sign in. Mr Hu raised his concern that Mr Chen had acted without authorisation and had caused unnecessary confusion for staff by sending an email directing staff to attend the administration office to manually sign in.

Mr Sun confirmed that the XJS School Council had received complaints about Mr Chen’s conduct, and his actions had caused “a lot of issues or dissatisfaction” with staff including Ms Cao. Mr Sun says his concern was that if Mr Chen had access to the reports, he would use it inappropriately to check on staff attendance and therefore he approached Mr Chen to inform him of his concerns. Mr Sun says that he told Mr Chen if he was going to check on staff records then he needs to have a witness and do it the “appropriate way”. Mr Sun says he didn’t inform Mr Chen that he couldn’t check on staff attendances. It is probable based on my earlier findings that Mr Sun did provide different responses to both Mr Hu and Mr Chen. I hold the view that Mr Sun’s relationships with Mr Chen and his lack of concern with formal process has inhibited Mr Hu’s capacity to adequately resolve issues and created uncertainty when Mr Hu has attempted to manage Mr Chen.

I am not persuaded that Mr Chen has made out his case for the alleged bullying in this instance. The XJS School Council made a decision during Covid to introduce the Blip app to electronically record staff attendance. At the time the new system was introduced Mr Chen was engaged as the Office Manager and the 4 February 2023 to 3 December 2023 contract applied at that time. The relevant position description provides that the core objectives of Mr Chen’s role include amongst other tasks was to supervise the attendance, work progress and work evaluation of the “admin staff in the head office”. Mr Chen’s position description also includes a statement that his role may change to meet the overall objective of the school, and he was to fulfil other duties as required by management and other department personnel as requested/required. It is clear from the position description that Mr Chen’s role was limited to the supervision of the attendance of the administration staff in head office only. The position description does not suggest that he had any role in the responsibility of recording staff or teacher attendances unless he was directed to do so. It was at all times open to Mr Hu to inform Mr Chen that he was not required to record attendances for the teachers or any other staff. Mr Hu’s instruction on this matter was a reasonable management action permitted within the scope of Mr Chen’s position description.

I have formed the view that Mr Chen unreasonably refused to comply with Mr Hu’s decision and instead sought to undermine his decision by issuing his own direction to staff requiring them to continue with the manual practice of signing the spreadsheet in his office which was in contradiction to the direction of Mr Hu as the Principal of XJS. I accept the evidence of Mr Hu that the attendance records which are now managed by the HR department include personal information and information about staff leave arrangements and other special arrangements that may contain private information. For those reasons it is not acceptable nor appropriate for Mr Chen to have access to the information contained within the electronic attendance records for all staff. I am satisfied that the correspondence from Mr Hu to Mr Chen pertaining to this allegation has at all times been reasonable. Again, Mr Chen has wilfully ignored and refused to comply with the reasonable direction of Mr Hu. The evidence lends towards a finding that Mr Chen complaints are at times vexatious and he is obstructing Mr Hu’s ability to properly perform his role.

Sixth allegation of bullying: Exclusion from holiday gifts

Mr Chen says Mr Hu excluded him from receiving gifts such as Mooncakes and dumplings during major Chinese and Australia public holidays. Mr Chen specifically refers to two occasions, the first being excluded from receiving Mooncakes as a gift. The second occasion referred to by Mr Chen is that he was not invited to attend the 30^th anniversary celebration on 21 April 2023 and submitted that being excluded from the event was bullying. Mr Chen submits that by not receiving the gifts or being able to attend the 30^th anniversary celebration he lost his dignity and suffered immense psychological trauma.

Mr Hu submits that generally the school has no policy about how often or to whom gifts should be given, however gifts for teachers and administration staff are generally organised by the campus managers of the school, and it is not ordinarily the decision of the Principal. Mr Hu says that Mr Chen has been the recipient of past gifts and he has personally issued Mr Chen with a $200 gift card in the past.

Mr Hu says on 5 March 2023, the XJS School Council decided to hold a lunch and issued an invitation to celebrate the 30^th anniversary to all teachers who had more than 10 years of service. Mr Chen commenced employment in 2019 and therefore he did not receive an invitation because he had not met the service requirements.

It is not in contention that Mr Sun sent a message to staff announcing the 30^th anniversary luncheon for XJS his announcement states:

“The 30^th anniversary luncheon of Xinjinshan Chinese School will be held at noon on 21 April (Friday) (in Monash City). At the same time, teachers who have been engaged in teach and administrative work in our school for a long time will be commended.
We sincerely invite you, as teachers who have served the school for more than ten years, to participate in this celebration.

The evidence provided by Mr Chen regarding the 30th anniversary celebrations indicates that the decision to invite staff with 10 or more years of service to the dinner was not made by Mr Hu. The decision was made by the XJS School Council, and it was Mr. Sun, not Mr. Hu, who issued the invitations. It is quite a stretch for Mr Chen to suggest that the absence of an invitation could be attributed to Mr Hu. It was a matter for the organisers to decide who could attend and the decision was reached at the discretion of the XJS School Council.

Mr Chen also contends that he did not receive the gift for the 30^th Anniversary celebration. The gifts were purchased and distributed to those staff who attended the 30^th anniversary, there is no evidence before me to the contrary. If the XJS School Council decided to extend the gifts to other employees then that was a discretionary decision that the XJS School Council was entitled to make. It is not in contention that Mr Chen had not worked as a paid employee for XJS for at least 10 years and therefore he was not entitled to attend the 30^th anniversary dinner. I am not persuaded that the absence of an invitation for Mr Chen to attend could be considered bullying.

Mr Chen also raises concerns about Mr Hu’s purchase and distribution of the Mooncakes. I took Mr Chen’s evidence to be an attempt to establish that Mr Hu was somehow involved in misappropriation of funds. Mr Chen’s allegations of misappropriation are not a matter that I need to decide in this application as they are distinct from the claims of alleged bullying. XJS raised an objection during the proceedings to the evidence produced by Mr Chen, I understood the objection to be that Mr Chen was attempting to rely on evidence in these proceedings that was produced for an existing matter before the courts. Mr Field acting for XJS belatedly raised his objection. Regardless, the evidence produced by Mr Chen when considered in the context of this matter and at its highest is evidence that Mr Hu placed an order for Mooncakes on behalf of both the WCLS and XJS. It does not assist to make out Mr Chen’s claim that Mr Hu had bullied him by excluding him from receiving Mooncakes as a gift.

The evidence pertaining to the sixth allegation supports a finding that the WCLS and XJS are responsible for the decision-making for the purchasing of Mooncakes as gifts for special holidays it chooses to observe. Once the decision has been made to purchase the Mooncakes, Mr Hu has previously been the person to place the order for Mooncakes for both schools in order to obtain a better price. The practice of the WCLS and the XJS was that each individual only received one gift item and Mr Chen had in the past in his role as Chairman of WCLS received his Mooncakes from WCLS consequently he was not entitled to a second gift from XJS. Further, I note that Mr Chen had also been responsible for collecting the Mooncakes for WCLS. Whilst Mr Hu has in the past purchased the Mooncakes, it was the Campus managers (of which I understand there are four) who distributed the Mooncakes not Mr Hu. This evidence remained undisturbed. I am not satisfied that there is sufficient evidence before me that would persuade me that Mr Hu had deprived Mr Chen of any entitlement he may have had to receiving Mooncakes on each occasion Mr Chen seeks to rely on.

Seventh allegation of bullying: Dismissing without notice and forcing office relocation.

Similar to Mr Chen’s other allegations his description of the seventh allegation involves inflammatory statements without factually describing the bullying conduct he alleges occurred. Mr Chen submits that:

“On 1 December 2023, I received an email from Principal Hu. The email content was very mysterious, not revealing the specific agenda or content of the meeting. This was an unregulated behaviour by Principal Hu to deceive employees.”

The email Mr Chen refers to is an invitation by Mr Hu for all teachers to attend a meeting in the administrative office on 5 December 2023. Mr Hu states that the purpose of the meeting was to convey a decision made by the XJS School Council about changes to the administration function.

During the meeting held on 5 December 2023, Mr Hu conveyed the decision of the XJS School Council to make changes to the way administration work was managed. The XJS School Council resolution signed by Mr Sun on 29 November 2023 states:

“The School Council accepts and approves that considering the facts of the operational cost and the change of how the administration work has been done within the school, the administration office of the school will be removed from 2024. There will be no mechanism of administration office within the school anymore. The three employees in the original administration office would go through the process of redundancy as instructed by Employsure and the relevant redundancy pay would be made in accordance with regulations of Fair Work Commission. The school would properly handle the aftermath of the redundancy for the three employees in accordance with relevant regulations”.

On 5 December 2023, Mr Chen attended a meeting with Mr Hu, Mr Pan and Zhigang Yang. Hong Li also attended and kept records of the meeting. During the meeting Mr Chen requested and was provided with a copy of the XJS School Council resolution. The contemporaneous notes of the meeting record Mr Chen as stating he agrees with the decision of the XJS School Council.

Mr Chen then submits:

“On 11 December 2023, Principal Hu sent me an email. Without prior notice, individual discussion, fair communication, or pointing out any violations, Principal Hu used his principal powers to abolish the office and my “office manager” position, placing me in the redundancy process.”

The email Mr Chen refers to states:

“Hello, Manager Chen Baoquan,
Thank you for attending the first meeting on December 5 regarding the administrative office layoff process. We sincerely invite you to attend the second meeting on December 13 to discuss changes to your position and listen to your opinions. Please find the attached meeting invitation letter.
Hu Peikang.”

The email was accompanied by a proposed change to working arrangements statement which set out the considerations of XJS and an invitation to attend a further consultation meeting. The statement informed Mr Chen that his views would be considered before a final decision was reached. Mr Chen was also informed that he was entitled to have a support person.

On 12 December 2023, Mr Chen attended a second consultation meeting. Mr Hu and Hong Li were also in attendance. During the meeting Mr Chen was offered redeployment into the position of Resource Support/Campus Yard Duty Officer. Mr Chen requested that he be provided with a copy of the contract and job description for the new role. Mr Chen was provided with the new contract and job description for the new role on 15 December 2023. It is not in contention that Mr Chen signed and returned the contract accepting the new role on 15 January 2024.

Mr Hu submits that at the time of the resolution the XJS School Council decided to close down the administration office and those employees who accepted redeployment would be relocated to a new office. According to Mr Hu the reason it was decided to close the administration office was because post Covid the functions of the administration office were reduced. The office no longer dealt with the same number of in person inquiries because people were making most of their inquiries on-line. On 20 February 2024, he informed Mr Chen that the office would be moving and advised him of the new office location.

On 27 February 2024, Mr Hu again sent an email to Mr Chen letting him know that the office move would take place on 1 March 2024.

Mr Hu’s evidence is that due to Mr Chen sending an aggressive email response to his request for him to move office he spoke to Mr Sun requesting that he advise Mr Chen that he was required to move office.

On 29 February 2024, Mr Chen informed Mr Hu that he was refusing to relocate to the new office. Mr Hu held the belief that Mr Sun had instructed Mr Chen that he had to move office however he still refused to do so. Mr Hu says that when he spoke to Mr Chen, he became aggressive and screamed and shouted at him. Consequently, he reported the situation to Mr Sun. Mr Hu says that Mr Chen became so aggressive that he ended up calling the police for assistance. Mr Hu says Mr Chen began video recording the situation and made a number of threats. Mr Hu says out of concern for Mr Chen’s wellbeing he called Mr Chen’s brother and requested that he come and collect Mr Chen. As a consequence of Mr Chen’s behaviour, the school then arranged for Mr Chen to seek medical assistance. Mr Chen did not attend the medical appointment.

Mr Chen now submits that he did not have to move because the XJS School Council resolution states that the school will “no longer maintain the Administrative Office, not that I need to vacate this office!” (emphasis added).

Mr Chen also now contends that Mr Hu “set up a comprehensive and malicious trap”. Mr Chen alleges that Mr Hu constructed a systematic plan to remove him from the school. Mr Chen says that based on his “work ability, positive performance, and good character” the school committee members gave him a continued work opportunity.

I first turn to consider the alleged redundancy. There is no evidence before me that the process undertaken by XJS to restructure the administration arm of the business was action by Mr Hu to specifically remove Mr Chen from XJS. Mr Chen alleges he was dismissed by way of redundancy however this is factually incorrect. To the contrary Mr Chen was redeployed by Mr Hu into a new role under the new proposed structure.

Whether Mr Chen’s role was made genuinely redundant was not raised in these proceedings. There is insufficient evidence before me to determine whether or not those changes resulted in Mr Chen’s role being made genuinely redundant and I have formed the view that it is not necessary for me in the context of Mr Chen’s bullying application to do so.

Mr Sun gave evidence that he was not involved in the decision regarding the restructure. I found the evidence of Mr Sun regarding the restructure to be inconsistent with the material evidence before me and I rely on my earlier observations about the reasons for Mr Sun being an unreliable witness. Regardless, the facts support a finding that Mr Sun signed and issued the XJS School Council resolution of 23 November 2023 in which the decision was made by the XJS School Council to “remove the administration office”. Therefore, it was Mr Sun and the XJS School Council who authorised the decision to make changes to the way the administration work at XJS was conducted and it was Mr Hu’s role to implement those changes. I am not persuaded that Mr Hu in carrying out his duties during the restructure of the administrative arm of XJS constitute bullying action against Mr Chen.

I now turn to deal with Mr Chen’s contention that “Mr Hu acted recklessly and implemented a forced relocation without showing the latest decision of the school committee, which led to a quarrel.” Mr Chen submits that Mr Hu “ordered and insulted me in a bad attitude”. Essentially, I took Mr Chen’s contention to be the allegation that his desk was forcefully removed from his office by the removalist hired by Mr Hu when Mr Chen refused to comply with Mr Hu’s request that he vacate the office on 1 May 2024. Mr Chen says that Mr Hu spoke to him harshly, exhibited a bad attitude, and aggressively pressured him. Further, Mr Chen believed that Mr Hu did not have the authority to make the decision about the office relocation.

Mr Chen produced a transcript of an alleged discussion he had with Mr Hu on 1 March 2024, when Mr Hu had met with him to organise the office move. During the discussion Mr Chen had refused to move office because he believed Mr Hu had no decision-making authority on the matter. Mr Chen did not produce the original audio recording of the conversation. Whilst the first part of the recording was obtained without Mr Hu’s knowledge or consent, he did not object to it being admitted into evidence.

I have had regard to the recording in the context of my views about covert recordings expressed earlier in this decision. I have formed the view that without the person being recorded being informed of what was occurring the person recording may act to construct circumstance that would otherwise not have occurred. I have taken this into account when considering the transcript and hold the view that Mr Chen acted to construct the conversation recorded. However, I have determined from the transcript that Mr Hu requested that Mr Chen move office, Mr Chen refused to comply and would not follow Mr Hu’s direction, instead he made a number of allegations about Mr Hu’s character and challenged his authority. Mr Hu asked that Mr Chen comply with his request and Mr Chen refused stating the request was unreasonable because the statement issued by the XJS Council does not specifically include a statement that he had to move office. The conversation continued in this pattern for a period of time with Mr Hu becoming increasingly frustrated with Mr Chen’s unreasonable responses.

It is clear from the transcript and Mr Chen’s oral evidence that he was refusing to comply with Mr Hu’s direction to move office. Mr Chen had formed the view that because the resolution of the XJS School Council did not specifically state that Mr Chen was to move office then Mr Hu had no authority in the matter. Mr Chen’s oral evidence was that he did not have to comply with any direction given by Mr Hu without specific instruction from the XJS School Council, or in my view, more specifically, Mr Sun’s direction.

After the initial discussion Mr Chen informed Mr Hu that he was going to record the discussion. Mr Chen mislead Mr Hu by not informing him that he had already been recording the conversation. However, I make no criticism about the responses from Mr Hu to Mr Chen during the covert recording of the conversation. The only observation I make is that Mr Hu appears to have made every attempt to keep the conversation professional and each time Mr Chen attempted to coerce him into entering into an argument about other unrelated matters or making slanderous statements, Mr Hu diverted the discussion back to the matter he was trying to deal with, being the relocation of the office.

I make a further observation about the content of the recording. It became apparent that Mr Hu had formed the view that the reason Mr Chen had persistently questioned his decision making authority and refused to comply with his directions was because Mr Chen also held the role as Chairman of the WCLS and saw himself as having the same level of authority as Mr Sun, therefore Mr Chen believed that he did not have to comply with Mr Hu’s direction.

It is uncontroversial that the discussion between Mr Chen and Mr Hu became heated and therefore unpleasant and consequently Mr Hu rang Mr Sun in an attempt to diffuse and resolve the matter. However, it was the conduct of Mr Chen that escalated to the point that Mr Hu had to call for external assistance. Whilst Mr Chen and Mr Hu exchanged some unpleasant comments in my view Mr Chen’s conduct was completely unacceptable. Mr Hu had issued a reasonable direction which Mr Chen had refused to follow because he did not believe he should have to take direction from Mr Hu. In my view the conduct of both individuals was unacceptable conduct for a workplace, however when considered in the context of the surrounding circumstances Mr Hu’s conduct (other than the argument that occurred) was reasonable management action.

Additional allegation

Mr Chen raised an additional allegation once his application was already on foot. Mr Chen submits that Mr Hu not allowing him to return to work in person in the office is Mr Hu distorting the truth and amounts to bullying, additionally that XJS refusing to reimburse Mr Chen’s psychiatric treatment significantly impacted his physical and mental health and life.

Following the 1 March 2024 incident, XJS requested Mr Chen provide a medical certificate confirming his fitness for work. An appointment for Mr Chen to visit a psychologist was arranged by XJS and they were prepared to cover the costs for this appointment. Mr Chen did not attend the scheduled appointment however did see a general practitioner of his own choosing. XJS consulted Employsure and considered Mr Chen’s response that he had seen a doctor and determined that this was sufficient in the circumstances and a certificate confirming his fitness to return to work was not necessary. Mr Chen has since received further medical treatment and sought reimbursement of $1290 from XJS which they have declined to pay.

At the time of the hearing and since the making of this application Mr Chen had been working from home. XJS has at all times continued to pay his salary. Mr Chen submits that not allowing him to return to the workplace is another instance of Mr Hu bullying him. Whilst I didn’t grant permission for Mr Chen to file further materials, regarding this allegation XJS has complied with the resolution reached by the parties for how Mr Chen’s employment should be managed whilst his application was being determined. The direction for Mr Chen to work from home was in his own best interest and was a reasonable decision in the circumstances. Additionally, XJS was under no obligation to pay Mr Chens medical expenses. It was open to Mr Chen at all times to make a workers compensation claim if he suffered a workplace injury.

I have set out my findings above to each of Mr Chen’s allegations. I make some final observation and further findings about Mr Chen’s conduct pertaining to each of the allegations set out above. Mr Chen was prone to inflammatory statements without sufficient evidence. Mr Chen’s first allegations were counter intuitive and if I had formed the view that Mr Chen was a reasonable person who was capable of acting in a reasonable way, then I would have considered that his allegation was vexatious. However, based on some of the evidence submitted which I have had regard to and not set out in this decision due to the personal nature of the evidence, and I do not intend on repeating it in this decision, I have formed the view that Mr Chen was not acting as a reasonable person.

Although Mr Chen reported to Mr Hu, he refused to comply with his directions questioning every decision he made and persistently undermined his authority. Mr Chen refused to comply with a reasonable management directions by refusing to reprint the missing Workbooks. Mr Chen did not comply with Mr Hu’s request for the printer records which again was a refusal to comply with a reasonable management direction. Mr Chen has been obstructive and gave evidence that he did not believe he should have to comply with the directions of Mr Hu. Mr Chen would often send multiple emails in succession challenging Mr Hu’s decision making or insisting that Mr Hu acquiesce to his demands, some of this conduct in my view was behaviour consistent with upward bullying. It is reasonable to conclude that Mr Chen’s conduct became so difficult for Mr Hu to manage that after telling Mr Chen he wasn’t required to be involved in the investigations into the missing workbooks, in order to avoid any further conflict Mr Hu simply decided not to respond to any further correspondence from Mr Chen.

Mr Chen was unable to identify his own shortcomings or how his behaviour contributed to the circumstances in which he finds himself. Whilst I have concluded that there may be some issues with Mr Chen’s successive contractual arrangements, I am not satisfied that Mr Hu has bullied Mr Chen. Instead, Mr Hu as Mr Chen’s direct manager has had to carefully navigate Mr Chen’s unreasonable behaviour and at times distorted perception of events. Mr Chen has as much of a responsibility to comply with XJS policies and show respectful behaviours at work as Mr Hu.

I found Mr Chen’s redundancy allegation to be baseless, Mr Chen allegation was also factually incorrect, he had not been dismissed, he was redeployed and was offered and accepted a new role with XJS.

I found Ms Cao to be a reliable witness and preferred her evidence over Mr Chen’s where the facts were in dispute. Mr Chen’s allegation that Mr Hu had falsely fabricated Ms Cao’s complaint was illogical and unsubstantiated. Mr Chen was acting beyond his authority when he inquired about her attendance and refused to follow a reasonable direction given to him by Mr Hu. Mr Chen’s position description did not require him to monitor or record Ms Cao’s attendance activities. His position description allowed for Mr Hu to reasonably vary Mr Chen’s duties and when the Blip attendance system was accepted by the XJS School Council it was reasonable for Mr Hu to do so.

For each of the allegations Mr Chen made against Mr Hu, taking into account the evidence and each of my findings set out in this decision, in all of the circumstances I am not persuaded that Mr Hu’s conduct constituted bullying action against Mr Chen. I consider Mr Hu’s actions in the most difficult of circumstances to have been reasonable management action.

Conclusion

In conclusion, Mr Chen believes that he has been bullied at work and has applied for the Commission to make a stop bullying order under section 789FC of the Act.

The Commission can only make orders to stop bullying if it is satisfied that Mr Chen has been bullied at work by an individual or a group of individuals; and there is a risk that he will continue to be bullied at work by the individual or group. To obtain those orders Mr Chen must establish that he was subject to unreasonable behaviour that was repeated whilst at work and that behaviour created a risk to his health and safety.[9] I am not satisfied that Mr Chen has established that Mr Hu subjected him to unreasonable behaviour that was repeated whilst at work.

Therefore, I do not consider it appropriate to make an order under s.789FC of the Act, and Mr Chen’s application is dismissed.

COMMISSIONER

Appearances:

B. Chen for himself
B. Field for the Respondent

Hearing details:

2024.
Melbourne
September 24 and 26
October 25
November 26

[1] See the discussion in Department of Education & Training v Sinclair [2005] NSWCA 465.

[2] Keen v Workers Rehabilitation & Compensation Corporation(1998) 71 SASR 42.

[3] Ms SB [2014] FWC 2104.

[4] Burbeck v Alice Springs Town Council [2017] FWC 4988, [139], [154].

[5] Transcript PN547.

[6] Transcript PN1632.

[7] Mr Wayne Schwenke v Silcar Pty Ltd T/A Silcar Energy Solutions[2013] FWC 4513.

[8] Gadzikwa Tawanda v Australian Government Department of Human Services T/A Department of Human Services[2018] FWC 4878.

[9] Ms SB [2014] FWC 2104.

Printed by authority of the Commonwealth Government Printer