Benjamin Peter Harrison v The Trustee for UBT Marketing Trust, Mathew Burazin and Peter Ireland
[2024] FWC 1422
•30 MAY 2024
| [2024] FWC 1422 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Benjamin Peter Harrison
v
The Trustee for UBT Marketing Trust, Mathew Burazin and Peter Ireland
(AB2023/413)
| COMMISSIONER TRAN | MELBOURNE, 30 MAY 2024 |
Application for an FWC order to stop bullying – applicant not bullied at work – application dismissed.
On 15 September 2023, Mr Benjamin Peter Harrison applied for an order to stop bullying at work under s 789FC of the Fair Work Act 2009 (Cth) (the Act). Mr Harrison’s employer is the Trustee for UBT Marketing Trust (UBT/the Employer) and he says that he was bullied by his manager, Mr Matthew Burazin, IT Support Team Leader, and Mr Peter Ireland, Human Resources Manager. Mr Harrison says that the bullying occurred from around January 2023 until he took a period of leave from work from 24 August 2023.
The Employer operates a number of businesses and, relevant to this matter, provides IT services to community organisations. Mr Harrison is employed in the position of IT Support Agent and is located in the Employer’s Bendigo office in Victoria. Mr Burazin is located in the Bowral office in New South Wales. Mr Ireland is located in the Homebush office in New South Wales. The Employer, Mr Burazin and Mr Ireland, (together, the Respondents) deny that they have subjected Mr Harrison to any bullying conduct and further say that the actions complained of were reasonable management action.
The Commission may make any order it considers appropriate to stop bullying but only if it is satisfied that the worker has been bullied at work and that there is a risk that the worker will continue to be bullied at work. I am not satisfied that Mr Harrison has been bullied at work. My detailed reasons follow.
Procedural History
I held conferences on 27 October and 23 November 2023 to discuss and explore resolution of this matter. Those discussions were not successful.
I issued directions and parties filed outlines of argument, witness statements and documents in accordance with those directions.
I held a hearing via Microsoft Teams on Monday 19 and Tuesday 20 February 2024.
Mr Harrison represented himself and gave evidence on his own behalf. On Mr Harrison’s application I ordered, under s 590(2)(a) of the Act, for Ms Louise Hutcheson to appear and give evidence. Mr Harrison also applied for other persons to be ordered to attend. I declined to make those orders together with orders for the production of documents and my reasons are set out below.
I granted permission under s 596(2)(a) for the Respondents to be represented by Ms Kristen Lopes of Colin, Biggers and Paisley. Mr Harrison objected to permission being granted for the Respondents to be represented. I was persuaded by the Respondents’ submissions that representation would assist me to deal with the matter more efficiently, taking into account the factual complexity of the matter and the amount of material to be canvassed. Mr Burazin, Mr Ireland and Mr Tushar Randev, Regional Department Manager, gave evidence on behalf of the Respondents.
Applications under s 590
Prior to the hearing and filing of materials, Mr Harrison applied under s 590 for documents to be produced and for the following persons to attend:
-Mr Mike Elliott;
-Mr Steve Goodsell;
-Ms Louise Hutcheson;
-Mr Ken Strange;
-Mr Jim Shemilt; and
-Mr Mathew Burazin
After the Respondents filed their materials, I revisited the applications for production of documents and orders for persons to attend.
I declined to make the orders sought under s 590(2)(c). Mr Harrison made two applications; both were the same and requested that a total of 34 categories of documents be produced. A majority of the relevant documents were provided in the Respondents’ materials. In relation to the documents that were not provided, I formed the view that they were not apparently relevant to the issues for my determination, except for Item 21. Item 21 was a request for a copy of all Skype chats, messages and MS Teams correspondence between Mr Burazin and Mr Harrison for the years 2021, 2022 and 2023. In relation to Item 21, I was of the view that while some messages and correspondence may be relevant, the request lacked sufficient particularity rendering it otherwise burdensome on the Respondent to produce the entirety of that category of requested items.
I declined to order that the following persons attend, as I formed the view that they would not give evidence that was relevant to the issues to be determined:
-Mr Mike Elliott;
-Mr Steve Goodsell;
-Mr Ken Strange; and
-Mr Jim Shemilt.
I declined to order that Mr Matthew Burazin attend, as he provided a witness statement in this matter and is a person named. It was therefore not necessary to make orders requiring his attendance.
I ordered that Ms Louise Hutcheson attend to give evidence as to her direct knowledge of interactions between Mr Harrison and Mr Burazin, and a specific incident in which Mr Harrison alleged that Mr Burazin excluded him from participation in a team and rapport building activity. These matters were relevant to some of the issues to be determined in this matter.
Background Facts
Mr Harrison has been employed by the Employer since October 2010. His job title is IT Support Agent / Desktop Support. He is located in the Employer’s Bendigo office.
Mr Burazin has been employed by the Employer since February 2015, initially in the role of Level 2-3 Desktop Engineer. Mr Burazin is located in the Bowral office. In October 2021, Mr Burazin became IT Support Team Leader, and therefore Mr Harrison’s manager and direct report.
Mr Ireland has been employed by the Employer as Human Resources Manager since 2020. Mr Ireland is located in the Homebush office.
In February 2023, Mr Harrison and Mr Burazin concluded Mr Harrison’s annual performance review process. The outcome of that review was that, in Mr Harrison’s assessment, his average rating was exceptional, whereas in Mr Burazin’s assessment of Mr Harrison, his average rating was excellent. In the Employer’s rating system, excellent was the second highest achievable category (exceptional being the highest achievable category).
From around February/March 2023, Mr Harrison began to experience Mr Burazin’s management as micromanaging.
On 12 May 2023, Mr Harrison sent an email to Mr Burazin headed – ‘Personal – Feedback from myself’. The email was lengthy and started with:
“I have never felt any pressure and or stress in my workplace, but in the last couple months I have started to feel this from you.”
In his email, Mr Harrison informed Mr Burazin that he felt micromanaged and that Mr Burazin was questioning everything, and questioning what he was doing as if he was doing nothing. Mr Harrison indicated that a colleague felt the same. Mr Harrison provided examples and asked for feedback which he preferred in writing.
On 23 May 2023, Mr Burazin replied to Mr Harrison’s email. The reply answered most paragraphs of Mr Harrison’s email. Mr Harrison found the reply to be defensive and dismissive. Mr Burazin’s email opened with:
“Apologies for the delayed response Ben, I tried to respond as best I can below.
Sometimes it can be difficult to relate this type of info and I’d really like to discuss these in further detail as there are many concerns listed in our 1 on 1 when I’m down there in the next 2 days as long as your [sic] comfortable doing so to ensure we are both on the same page as I do not want anything below to be potentially misunderstood.”
In June 2023, Mr Burazin attended the Bendigo office. A team event was scheduled for this visit. Mr Harrison, his colleague and Mr Burazin attended the event.
On 30 June 2023, Mr Harrison did not receive a 2% pay increase that other employees of the Employer received.
On 6 July 2023, Mr Harrison sent an email to Mr Tushar Randev, Regional Department Manager for the Employer and Mr Burazin’s manager setting out his issues with Mr Burazin and asking for time to discuss the matter and whether to involve human resources. Mr Randev arranged a meeting via Teams to discuss the matter together with Mr Ireland. This meeting occurred on 12 July 2023.
On 14 July 2023, Mr Harrison and Mr Burazin had a one-on-one meeting by telephone. Immediately after the meeting, Mr Harrison emailed Mr Ireland and Mr Randev and informed them that he felt Mr Burazin was bullying him, that he felt quite sick and was ready to walk out.
On 21 July 2023, Mr Harrison made a formal written complaint to human resources about Mr Burazin’s treatment of him. There were two areas of complaint:
-Withholding annual remuneration increase (Merit Review) and a performance bonus (known as the General Incentive Plan or GIP); and
-The way that Mr Burazin was managing Mr Harrison.
Mr Harrison sought the following outcomes:
-that the decision to withhold remuneration and GIP bonus be reconsidered and reversed;
-that Mr Burazin be held accountable for his treatment of Mr Harrison;
-that Mr Burazin apologise to Mr Harrison and the Employer’s management; and
-that Mr Burazin undertake further training on managing people.
Mr Harrison provided further information and examples to Mr Ireland and Mr Randev on 27 and 28 July 2023.
On 27 July 2023, Mr Ireland and Mr Randev met with Mr Burazin to inform him of the complaint against him. Mr Burazin provided a written response on 1 August 2023 and was interviewed on 2 August 2023.
On 21 August 2023, Mr Harrison had a further meeting with Mr Ireland and Mr Randev during which he was provided with the outcome of the Employer’s investigation into his complaints. The outcome was that all allegations were unable to be substantiated. However, the investigation also recommended various steps for resolution of the issues raised. These included:
-More regular one-to-one meetings between Mr Harrison and Mr Burazin
oThese were to be weekly for 6 weeks; moving to fortnightly thereafter or earlier if agreed; and
owhich would be facilitated by Mr Randev for a period of 3 months;
-In relation to the merit increase and performance bonus
oMr Burazin to provide Mr Harrison with an explanation for the withholding of the merit increase and bonus during the first scheduled one-to-one meeting;
oMr Harrison to update his goals, to be signed off by Mr Burazin and Mr Randev
oMr Burazin and Mr Randev to then evaluate Mr Harrison’s performance to determine payment of next quarter’s bonus;
-Mr Burazin to undertake a ‘detailed’ activity log to evaluate Mr Harrison’s role and update Mr Harrison’s position description, and the revised position description to be signed off by Mr Randev; and
-That Mr Harrison be reminded of his obligations to follow reasonable and lawful directions and for him to read relevant policies to ensure that he does not make frivolous or vexatious grievances.
On 24 August 2023, Mr Harrison experienced an acute stress reaction and has been off work on sick leave since this date.
As at the date of the hearing on 19 and 20 February 2024, Mr Harrison had not yet returned to work.
Orders Sought
Mr Harrison sought an order to stop Mr Burazin bullying him. He specifically sought orders that Mr Burazin stop micromanaging him and that his line manager change from Mr Burazin to Ms Hutcheson. Mr Harrison did not appear to seek any specific orders relating to his allegations of bullying by Mr Ireland. In relation to the wage increase and performance bonus, Mr Harrison acknowledged that the legislation does not permit me to order a compensation amount but argued that the failure to provide the wage increase in performance bonuses were part of his bullying claim.
Legislation
The relevant provisions are set out in Part 6-4B of the Act.
Section 789FF provides the scope of the Commission’s power to make orders to stop bullying:
“FWC may make orders to stop bullying
(1)If:
(a) a worker has made an application under section 789FC; and
(b) the FWC is satisfied that:
(i)the worker has been bullied at work by an individual or a group of individuals; and
(ii)there is a risk that the worker will continue to be bullied at work by the individual or group;
then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.
(2)In considering the terms of an order, the FWC must take into account:
(a)if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body--those outcomes; and
(b)if the FWC is aware of any procedure available to the worker to resolve grievances or disputes--that procedure; and
(c)if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes--those outcomes; and
(d)any matters that the FWC considers relevant.”
Section 789FC(1) sets out who may apply to the Commission for an order:
“Application for an FWC order to stop bullying
(1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.
(2) For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force.
Note: Broadly, for the purposes of the Work Health and Safety Act 2011 , a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.”
Section 789FD defines when a worker is ‘bullied at work’:
“When is a worker bullied at work?
(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.
(3)If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:
(a) the person is:
(i)a constitutional corporation; or
(ii)the Commonwealth; or
(iii)a Commonwealth authority; or
(iv)a body corporate incorporated in a Territory; or
(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;
then the business or undertaking is a constitutionally - covered business.”
Was Mr Harrison a worker who could make the application?
It was not in dispute, and I find, that Mr Harrison was a worker and that he was employed by a constitutionally covered business.
It was also not in dispute, and I am satisfied, that Mr Harrison reasonably believed that he has been bullied at work. He made complaints to the Employer prior to commencing this application and he has been unable to attend work due to the effect upon him of the subject matter of his complaints. His belief is reasonable, in that it has a rational basis as the events he complains of did occur.[1]
Was Mr Harrison bullied at work?
Mr Harrison alleges that he was bullied by Mr Burazin in the following ways. He said that Mr Burazin micromanaged him from around February/March 2023 by frequently questioning the amount of calls or tickets that Mr Harrison responded to during his work time, the length of time it took Mr Harrison to answer calls, and questioning the taking of breaks or working from home. Mr Harrison also alleged that Mr Burazin attempted to exclude him from a team event. Mr Harrison also alleged that Mr Burazin bullied him by failing to award a wage increase in June 2023 and the GIP performance bonus for the first quarter of 2023. Finally, Mr Harrison alleged that on 14 July 2023 during an approximately hour-long meeting Mr Burazin spoke to him in an aggressive manner by screaming and yelling after he had made a complaint to HR about Mr Burazin’s bullying of him.
Mr Harrison alleges that Mr Burazin bullied him when Mr Burazin micro-managed him
The examples that Mr Harrison provided of Mr Burazin micromanaging him included:
-asking that Mr Harrison submit a leave form for the period from 19 to 23 December 2022;
-seeking information about the work that he was performing, in particular calls that were abandoned or when breaks would be taken; and
-seeking information about working from home.
Mr Harrison gave evidence that his work colleague in the Bendigo office who was on the same team as him and who was also managed by Mr Burazin was undergoing a performance improvement process. Mr Harrison gave evidence that both he and his colleague would receive questions about abandoned calls. However, the questions about the abandoned calls did not occur contemporaneously with when they were abandoned which were sometimes outside of both his and his colleague’s working hours or during breaks. Mr Harrison also challenged that the concerns Mr Burazin had about length of calls and the client wait time as not justified or reasonable concerns.
The Respondents say that the matters raised do not amount to bullying and if the alleged conduct occurred, it constituted reasonable management action carried out in a reasonable manner. The Respondents’ evidence focused upon contextualising Mr Burazin’s questioning of Mr Harrison’s work within a frame of Mr Burazin attempting to understand why Mr Harrison had the lowest call and ticket completion rates of his team. Mr Burazin gave evidence that he asked his entire team, including Mr Harrison, about their roles, daily tasks and current workloads. This occurred on 7 October 2021. Mr Harrison replied on 12 October 2021.
There is no evidence that Mr Burazin asked any questions or followed up on Mr Harrison’s response until March 2023, when Mr Burazin began to interrogate Mr Harrison’s ticket volume and response times. Mr Burazin provided evidence of the questions he raised as well as the information he gathered about Mr Harrison’s work performance. Mr Burazin collated the data he collected about call statistics, but these were never shown to Mr Harrison.
Mr Burazin’s evidence was that he did not have scheduled regular one-on-one meetings with Mr Harrison, or any of his team members. He gave evidence that he had one-on-one meetings with his team members ‘usually at least once a month.’ However, he usually asked if the team member wanted to have a one-on-one meeting or if there was anything to discuss. He said that most times, the answer would be no, so a one-on-one meeting would not be conducted. Mr Burazin said that he had one-on-one meetings with Mr Harrison about as often as other people in the team but did not remember how often he had one-on-one meetings with Mr Harrison.
Mr Burazin formed the view that Mr Harrison did not want to engage with him in relation to his day-to-day workload.
Mr Burazin’s evidence was that he had not yet commenced a performance improvement process with Mr Harrison when the investigation of the bullying complaint against him commenced and after which Mr Harrison then went on sick leave.
Both parties put into evidence copies of emails and messages via Teams and Skype.
My findings regarding micro-management
I find that the specific examples of events that Mr Harrison alleged was bullying of him by Mr Burazin – such as checking about abandoned calls and asking Mr Harrison to return those calls, asking about the reason for working from home and reminding him to put in a leave form – did occur. I note that the communication relating to Mr Harrison’s leave form occurred in December 2022, which is prior to the time when Mr Harrison began to experience Mr Burazin’s management of him as micromanaging. I find that the communication was frequent and interrogative, but I do not consider that it rose to the level of unreasonable behaviour.
Overall, in determining whether behaviour was reasonable, regard must be had to the subject matter and object of Part 6-4B of the Act.[2]
The following types of behaviour have been described as unreasonable behaviour that could form bullying:[3]
-Intimidation, coercion, threats, humiliation, victimisation
-shouting, sarcasm, terrorising, belittling
-singling out, freezing out, bad faith
-malicious pranks, harassment, conspiracy to harm, ganging up, mobbing
-isolation, ostracism
-innuendo, rumour mongering, disrespect, mocking
-victim blaming, gas lighting
-physical abuse, verbal abuse, emotional abuse
Mr Harrison and Mr Burazin did not work in the same location and they communicated with each other remotely using various means. Mr Harrison’s evidence was that in the entire time that he was managed by Mr Burazin from October 2021 until August 2023, that they met on only two occasions. Mr Harrison’s evidence was that Mr Burazin sent him messages via Microsoft Teams and he generally communicated with Mr Burazin via Skype. Much of the issues around Mr Burazin’s questioning of Mr Harrison including in relation to working from home may have arisen from the manner of communication – that is, via text only – as tone and nuance are often lost in text.
In relation to the concerns about abandoned calls or wait times, it was not clear that these issues were brought to Mr Harrison’s attention at the time they occurred. Mr Burazin would be notified of the issues and then bring them to Mr Harrison’s attention. In addition, for Mr Burazin the issues were in the context of a review conducted by Mr Burazin that Mr Harrison had not yet been made aware of. Mr Burazin had an overall picture, which gave rise to his concerns, but Mr Harrison was not aware of this.
So, Mr Harrison brought his perspective to Mr Burazin’s questions of him, and his perspective was that the questions were an unjustified interrogation stemming from Mr Burazin’s lack of understanding and appreciation of the full picture of Mr Harrison’s workload. For his part, Mr Burazin’s perspective was suspicion about why Mr Harrison was being resistant and unwilling to engage with his enquiries in the context of his overall team perspective when Mr Harrison appeared to be the least productive team member.
I found Mr Harrison to be a generally credible and honest witness. Mr Harrison was particular and precise, and he has ruminated over events and communications with Mr Burazin under the impression that Mr Burazin bullied him. I found Mr Burazin to be evasive and unimpressive with poor recall. My overall impression is that Mr Burazin may have required further support in managing his team members who were remote from him.
I find that when Mr Burazin made enquiries of Mr Harrison about his work performance, that this was management action. It is management action because it relates to allocating work and providing feedback on performance. I also find that the behaviour was reasonable and carried out in a reasonable manner. The language in all the emails and messages was polite. Some of the messages were brief and could be misinterpreted as curt or abrupt, but not unreasonable nor unusual when messaging.
In relation to Mr Burazin questioning Mr Harrison about working from home, I find that the example of messages provided were again brief but did not indicate unreasonable behaviour by Mr Burazin. I provide an example below and note that the tenor of other messages were similar in that Mr Burazin accepted Mr Harrison working from home but wanted to know why.
“Mr Burazin: WFH OK, how come?
Mr Harrison: because we agreed that I could on Thursdays if I could. I hardly ever do it.
Mr Burazin: that’s fine no prob”
The behaviour was not unreasonable but nor was it ideal. Mr Burazin could have more clearly communicated to Mr Harrison the context of raising the issues and may have needed to consider how enquiring by message only (that is, without any verbal or face-to-face communication) could have led to misunderstandings. I prefer the evidence of Mr Harrison in relation to the number of one-to-one meetings that he and Mr Burazin had between January and July 2023, being only two. This appears to me insufficient in the context of the concerns that Mr Burazin had about Mr Harrison’s performance and renders his view that Mr Harrison was evading his enquiries difficult to support.
In the context of Part 6-4B of the Act, the test is whether management action was reasonable, and not whether it should have been undertaken in a more reasonable or more acceptable way.[4] Management actions do not need to be perfect or ideal in order to be reasonable.
Unreasonable behaviour that amounts to bullying conduct under the Act requires something more than what has occurred in this matter. Mr Harrison drew my attention to the case of Lacey and Kandelaars v Murrays Australia Pty Limited and Cullen.[5] In that case, Commissioner Roe found that bullying had occurred towards bus drivers. The findings related to the type of incidents and the context of behaviour when communicating about those incidents. For example, one bullying incident involved falsely accusing a driver in circumstances where they had worked a 14-hour day. Another involved requiring a driver to complete paperwork by throwing the papers in front of the driver and saying that if the driver failed to complete the paperwork, that the manager would take note that the driver failed to follow procedures, for which there were consequences. A final example was when the manager required a driver who had improperly accelerated in the depot to demonstrate his safe driving by making a slow circuit of the depot in front of his colleagues. In other incidents, it was relevant that the manager spoke in a raised voice, was confrontational and appeared angry, in that he was red in the face and may have had his fists clenched.
So, it can be the case that a manager questioning work performance could be unreasonable behaviour that amounts to bullying where it is also shown that the enquiries were unjustified, inappropriate, contextualised by other unfair and unreasonable behaviour such as threats and intimidation. I do not find that context exists here.
Mr Harrison alleges that Mr Burazin bullied him when Mr Burazin attempted to exclude him from a team building event
The team event occurred on 25 May 2023. Mr Harrison felt that Mr Burazin had attempted to exclude him and a colleague from the event. While Mr Harrison ultimately did attend the event, in his words, “[Ms Hutcheson] had to really fight with [Mr Burazin] for a week because he just explicitly wanted to exclude us from the teambuilding event.” Mr Harrison says that during the event, Mr Burazin barely spoke to him or his colleague.
Ms Hutcheson’s evidence was that she arranged for visiting colleagues from New Zealand to go to a local tourist attraction. Ms Hutcheson said that she asked Mr Burazin if Mr Harrison and his colleague could be included in the tour. She said that Mr Burazin replied that he would have to let her know as it was only Mr Harrison and one other IT team member available to respond to calls and tickets, so he was not sure whether it would be appropriate for both to attend. Ms Hutcheson gave evidence that she then followed up to say that she wanted the entire Bendigo office to go and that any tickets that came through could be dealt with by New Zealand and a different team member. Ms Hutcheson’s evidence was that Mr Burazin then replied, “That should be okay.” This exchanged occurred one day later. Ms Hutcheson and Mr Burazin communicated via Teams about this event.
Mr Burazin’s evidence was that he also attended the event. Mr Burazin gave evidence that he did approve for Mr Harrison and his colleague to attend the event and that he had been concerned that the IT service desk would not be attended for a significant period of time if both Mr Harrison and his colleague attended the event.
My findings about the allegations of excluding Mr Harrison from a team-building event
I find that this incident was not unreasonable or inappropriate behaviour by Mr Burazin. It is appropriate for a manager to consider whether there are enough staff to ensure that work is completed. The evidence did not demonstrate significant prolonged resistance to the inclusion of Mr Harrison and his colleague in the event.
Very little evidence was led by any party about what occurred during the event. I found Mr Harrison to be genuine and honest, and I believe his evidence that Mr Burazin barely spoke to him at the event. However, it was also an event including the entire Bendigo office and visitors from New Zealand and Mr Burazin. I do not consider that it was unreasonable behaviour amounting to bullying for Mr Burazin to not engage with Mr Harrison during this event.
Mr Harrison alleges that Mr Burazin bullied him when Mr Burazin denied him the 2023 wage increase and the first quarter 2023 performance bonus
In relation to the wage increase and performance bonus, Mr Harrison alleged that failing to award both was unjustified, which also demonstrated Mr Burazin’s lack of understanding of the work he performed. Mr Harrison understood that almost every person had received a 2% pay rise except for him and his work colleague in the Bendigo office. Mr Harrison argued that he should have received the pay increase as his most recent performance review was marked as excellent. Mr Harrison was also aggrieved that he was never provided with reasons for the denial of the wage increase and GIP performance bonus.
The Respondents say that the denial of the wage increase and performance bonus were based on an assessment. Relevant to that assessment were the performance appraisal process, a review process and an assessment of an employee’s performance during the period between January to July 2023 when the increase and bonuses would have been paid. For the GIP performance bonus, goals are set between an employee and their manager which creates tasks or milestones for each quarter, which feeds into a team goal that feeds into a business unit goal which ultimately feeds into the organisation goals. The Respondents also say Mr Burazin was not the sole decision-maker when deciding to not award the increase and bonus to Mr Harrison.
Mr Ireland gave evidence that the Employer has approximately 400 staff across Australia and New Zealand, and about 30 people did not receive a wage increase and between 20 and 35 people did not receive the quarterly GIP performance bonus. Mr Ireland also gave evidence that all staff and managers are trained in the goalsetting and GIP performance bonus process. Mr Ireland said that several training sessions are conducted to ensure that all staff in Australia and New Zealand have an opportunity to attend and records are kept. Mr Ireland gave evidence that Mr Burazin has attended most if not all of the manager training programs and he is aware of this because he facilitates a number of those programs.
My findings about the wage increase and performance bonus allegations
While I accept that in some cases, denial of a discretionary wage increase and performance bonus could amount to workplace bullying, I do not consider that has occurred in this case. The Employer has a clear and lengthy process in determining whether any particular employee receives the increase and the bonus. I accept the evidence of Mr Ireland that Mr Harrison was one of approximately 30 people who did not receive the wage increase and one of between 20 and 35 people who did not receive the GIP performance bonus.
I find that the Employer did provide Mr Harrison with its reasons for denying him the wage increase and the first quarter performance bonus, but those reasons were not acceptable to him. I can understand why someone who receives an average rating from his manager of “excellent” on his performance review would feel aggrieved about not receiving a wage increase or performance bonus. However I also accept the Employer’s evidence of how a performance appraisal is only one part of the decision to award an increase or performance bonus. Last, I accept the evidence of Mr Burazin that he made the decision to not award the wage increase or performance bonus to Mr Harrison in consultation with Mr Randev and Mr Ireland.
Mr Harrison alleges that Mr Burazin bullied him during a one-on-one meeting on 14 July 2023
Mr Harrison’s evidence is that in a meeting on 14 July 2023 (which was after he had submitted a formal complaint to HR about Mr Burazin’s behaviour towards him), Mr Burazin lectured him for 50 minutes in an extremely aggressive and overbearing manner. This meeting was conducted by telephone. Mr Harrison gave evidence that Mr Burazin spoke over the top of him, would not let him say more than a couple of words before interrupting him and belittled him like he was a naughty child. Mr Harrison also gave evidence that he asked Mr Burazin to stop at least three times. Mr Harrison’s evidence is that this was only the second meeting that he had with Mr Burazin for the entire year. Mr Harrison gave evidence that immediately after the meeting concluded, he made a further complaint about Mr Burazin’s behaviour towards him during this meeting.
Mr Harrison also gave evidence that as he had put in his complaint a week earlier, he expected that Mr Ireland and Mr Randev would have spoken with Mr Burazin; Mr Burazin would have realised his mistake; and that the purpose of the meeting was to apologise and, in Mr Harrison’s words, “be a big backflip.”
Ms Hutcheson gave evidence she had observed Mr Harrison upset at work. This appeared to be shortly after he learned that he would not be receiving the performance bonus. Ms Hutcheson also gave evidence that while she was in New Zealand for a leadership conference, Mr Harrison contacted her upset about Mr Burazin’s treatment of him and that she spoke with Mr Tushar Randev, Mr Burazin’s manager. The timing of this is likely to relate to the one-on-one meeting that Mr Harrison had with Mr Burazin.
Mr Burazin gave evidence that during this meeting, he discussed with Mr Harrison his goals and the performance review. He said that he attempted to discuss Mr Harrison’s concerns regarding the annual wage increase and performance bonus but that Mr Harrison informed him he did not want to discuss these as he had spoken with someone else and did not want to talk about it further. Following that meeting, Mr Burazin prepared a 4-page synopsis which he tended into evidence. The synopsis appears to be an email to Mr Harrison recapping the meeting, which was emailed to Mr Ireland and Mr Randev on 1 August 2023 as part of Mr Burazin’s response to the bullying complaint against him. Mr Harrison did not see the synopsis prior to the hearing.
The synopsis is a detailed and near-contemporaneous record of Mr Burazin’s recollections of the meeting. It summarises discussions relating to the performance bonus and wage increase and conversations regarding work including what Mr Harrison’s role encompassed and other work he performed which Mr Burazin may not have had oversight of. Mr Burazin reports in the synopsis that he informed Mr Harrison of the requirement to understand and keep a record of the work being performed and to set goals that were reportable and could provide statistics. The synopsis concluded with:
“at this stage Ben [Mr Harrison] then stated he was feeling pressure and that I was sending accusations his way in regard to his work ethic, Ben then advised he did not wish to continue discussing this any further and if any further discussion was required he will contact me.”
Mr Ireland and Mr Randev both confirm receipt of Mr Harrison’s email about the one-on-one meeting, which was also a contemporaneous record. Mr Ireland responded to that providing information about the Employer’s employee assistance program and stating that Mr Randev would call Mr Harrison to discuss. Mr Randev gave evidence of a brief telephone discussion which reiterated that they were investigating Mr Harrison’s complaints of Mr Burazin’s treatment of him and the support available from the EAP.
The Respondents’ evidence is also that while Mr Harrison sent an email on 6 July 2023 and then met via Teams with Mr Ireland and Mr Randev on 12 July 2023 about his concerns with Mr Burazin’s treatment of him, he also indicated that he was unsure about whether he wished to commence a formal complaint process. So, it was not until 21 July 2023 that Mr Harrison confirmed that he wished to make a formal written complaint, and 27 July that Mr Ireland and Mr Randev informed Mr Burazin of the complaint and investigation.
My findings about the 14 July 2023 meeting
As detailed above, I prefer the evidence of Mr Harrison to Mr Burazin in relation to their one-on-one meetings. This meeting was only the second one-on-one meeting in 2023 between Mr Burazin and Mr Harrison. It was by telephone, lengthy, and covered many of the matters that Mr Harrison felt aggrieved by. However, the evidence points to Mr Burazin not being aware on 14 July 2023 that Mr Harrison had made a complaint against him, although Mr Burazin had received an email from Mr Harrison in May 2023 that said that he was feeling pressure and micromanagement from Mr Burazin.
I have weighed up the evidence of Mr Harrison and Mr Burazin in relation to this meeting and conclude that while it was a lengthy and difficult meeting conducted by the telephone, it was not unreasonable behaviour that amounted to bullying. Both had different perspectives of the meeting but neither felt it to be a positive one. Nevertheless, I accept Mr Burazin’s evidence about what occurred during the meeting given his detailed contemporaneous note of it. Mr Harrison’s email to Mr Randev and Mr Ireland, which was also a contemporaneous record of the meeting, is about how he experienced it rather than the details of what Mr Burazin said to Mr Harrison. I accept that Mr Harrison experienced that meeting differently to Mr Burazin and that it was a very difficult and disappointing one for him because he had initiated the complaint against Mr Burazin and had the expectation that the meeting would achieve a resolution for his matter that included the reversal of the decision to not award him a wage increase or performance bonus.
Mr Harrison alleges that he was bullied by Mr Ireland
Mr Harrison alleges that he was bullied by Mr Ireland as HR failed to take his complaints seriously and did not formally and properly investigate his bullying complaint, and therefore failed to substantiate his bullying complaint. In his application, Mr Harrison also alleged that the outcome – in which he was informed that he should not make vexatious or frivolous complaints about bullying, and that doing so could result in disciplinary action – was bullying of him.
The Respondents argue that they complied with the Employer’s investigation policy and that Mr Ireland conducted an appropriate and robust investigation. The Respondents argued that non-substantiation of allegations does not amount to bullying. Mr Ireland and Mr Randev gave extensive evidence about the communications with Mr Harrison about his complaint, their considerations about whether it was a formal complaint and commencement of investigation, which included interviewing both Mr Harrison and Mr Burazin.
My findings regarding the allegations of bullying by Mr Ireland
I comment that a conclusion to a bullying investigation which includes the remark about not making vexatious or frivolous complaints to be unhelpful in this context. There appeared to be very little evidence that could justify such a remark as an outcome and it is understandable how Mr Harrison as a result of reading such a remark felt further aggrieved by the complaint process.
However, I find that Mr Ireland’s response to Mr Harrison’s complaint and his conduct of the investigation was reasonable and did not amount to bullying. The outcomes of the investigation, other than the final comment regarding vexatious complaints, appear reasonable and appropriate and are not bullying. The comment regarding frivolous and vexatious complaints was unhelpful and was not necessary in the circumstances, but also does not amount to bullying. Mr Harrison sought to point out the ways in which the investigation process did not strictly comply with the Employer’s policies. However unreasonable behaviour that amounts to bullying within the context of Part 6-4B of the Act requires a significant departure from established policies and procedures.[6] That is lacking here.
Did the behaviour create a risk to health and safety?
It is not contested that the behaviour created a risk to health and safety. The behaviour did affect Mr Harrison’s health and safety as he went on sick leave from 24 August 2023 and, as at the date of the hearing, was not yet ready to return to work. Mr Harrison gave evidence of the effect upon him, including severe anxiety and sleeplessness. Mr Harrison also gave evidence that his psychologist and general practitioner have advised him to wait on the outcome of this matter before working out how to get him back to work. I was not provided with any detailed medical evidence or reports, other than a certificate of capacity.
Is there a risk that Mr Harrison will continue to be bullied at work?
The Commission can make orders only if it is satisfied that a worker has been bullied at work and that there is a risk that the worker will continue to be bullied at work. I have not found that Mr Harrison was bullied at work by Mr Burazin or Mr Ireland. I therefore do not have the power to make any orders.
Even if I had found that bullying of Mr Harrison had occurred, there is currently no risk that he would be bullied at work because as stated above Mr Harrison is off work and may not yet be ready to return to work.
Orders Sought
The parties made submissions about the orders that Mr Harrison sought and their appropriateness, particularly in relation to changing the reporting line from Mr Burazin to Ms Hutcheson. I have not found that bullying occurred and cannot make orders. However, I wish to make some observations.
Mr Harrison says, and I believe him, that he likes his job and found the Employer to have been a great employer. He said that he wished to return to his previous role, free from bullying. He attempted to address his concerns appropriately. Initially he attempted to address them directly with Mr Burazin and when that did not result in a change to Mr Burazin’s behaviour, he then attempted to address his concerns through HR and Mr Ireland. It is unfortunate that someone who presented as dedicated to his work as Mr Harrison has ended up in this circumstance.
If the Employer wishes for Mr Harrison to return to work, it will need to undertake mediation between Mr Harrison and Mr Burazin as that relationship appears to have broken down. I am of the view that the outcomes of its investigation relating to more regular one-to-one meetings between Mr Harrison and Mr Burazin, with the facilitation of Mr Randev, are appropriate initial steps.
Conclusion and Order
As I am not satisfied that Mr Harrison has been bullied at work, I have no power to make a stop bullying order. The application is dismissed.
COMMISSIONER
Appearances:
Mr B Harrison for himself.
Ms K Lopes of Colin, Biggers and Paisley for the Respondent.
Hearing details:
19 and 20 February 2024
Video using Microsoft Teams
[1] Sharma v Lawson & Vet Partners Australia Pty Ltd[2022] FWC 2310 at [22].
[2] Sharma at [31].
[3] Sharma at [31]; Mac v Bank of Qld Limited and Others[2015] FWC 774 at [99].
[4] Re SB [2014] FWC 2104 at [51].
[5] [2017] FWC 3136.
[6] Re GC[2014] FWC 6988 at [56].
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