Burbeck v Alice Springs Town Council

[2017] FWC 4988

[2017] FWC 4988

FAIR WORK COMMISSION

DECISION

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

Katherine (Kate) Burbeck
v
Alice Springs Town Council; Georgina Davison; Skye Price; Clare Fisher
(AB2017/120)

COMMISSIONER WILSON MELBOURNE, 6 OCTOBER 2017

Application for an FWC order to stop bullying.

INTRODUCTION

[1] This decision concerns an application made under the Fair Work Act 2009 (FW Act) anti-bullying provisions by Katherine Burbeck, an employee of the Alice Springs Town Council (ASTC, or the Council). Ms Burbeck’s application alleges numerous elements of conduct, said to be bullying, by several employees of the Council, namely Georgina Davison its Manager Library Services; Clare Fisher, its Library Operations Team Leader and Skye Price its Director Corporate and Community Services.

[2] Since Ms Burbeck is employed by a body corporate incorporated in the Northern Territory, there is jurisdiction for the application to proceed (s.789FD(3)(iv) FW Act, and s.25(1) of the Local Government Act (NT)).

[3] The Commission’s assessment of allegations of bullying at work is an objective assessment of whether behaviour and conduct that occurred was unreasonable with an attendant likely risk to health and safety. Behaviour and conduct that, objectively considered, is reasonable management action is not bullying at work. Even having found objectively there was bullying at work, the Commission must then assess, also objectively, whether there is a risk of the conduct continuing, also with a further risk to health and safety. After that point, the Commission is vested with the discretion to make orders or not.

[4] The evidence supports a finding that Ms Burbeck has been bullied at work, within the meaning of the FW Act and that it is appropriate to make orders dealing with the behaviour and conduct that has arisen.

APPLICABLE LEGISLATION

[5] The FW Act’s provisions in relation to anti-bullying are contained within Part 6-4B—Workers bullied at work, with s.789FD setting out the circumstances of when a worker is bullied at work:

“789FD 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.”

[6] Section 789FF sets out the powers of the Commission to make orders in the event that it is satisfied there is bullying at work:

“789FF 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.”

BACKGROUND

[7] Ms Burbeck presented her own case to the Commission and was assisted by Mr Ken Turner, who is also an employee at the Council.

[8] Mr Chris Turner, solicitor, and Mr K McCann, both of whom are employed by the ASTC, represented Ms Davison, Ms Price and Ms Fisher and the interests of the ASTC.

[9] Ms Burbeck has been employed by the ASTC in the Alice Springs Public Library since 2005. Her present position is that of Children’s and Youth Services Officer. She was on long service leave until April 2016 and during the period she was away, Lynda Wickham moved into a newly created position of Programs Team Leader and Ms Burbeck commenced reporting to her. Prior to Ms Wickham being appointed to that position Ms Burbeck had reported to Ms Davison, the Library Manager. 1

[10] Ms Burbeck has not been at work since October 2016, when she proceeded on leave.

[11] Following discussion by me with the parties in a conference prior to the formal start of proceedings, six broad matters were agreed as requiring determination in this decision as to whether any, some, or all were bullying;

● Performance counselling – a decision by ASTC to commence performance counselling Ms Burbeck after a performance appraisal meeting on 22 June 2016;

● The “respect” email – a decision by ASTC to investigate Ms Burbeck’s conduct in relation to an alleged Code of Conduct breach as a result of her reply to email from her Manager on 23 June 2016 seeking team members adhere to certain organisational cultural matters, including showing respect to each other;

● Two workplace grievances – ASTC’s dealing with two workplace grievances lodged by Ms Burbeck during July 2016;

● The First Allegations letter – ASTC’s decision to issue a letter on 12 October 2016 alleging Ms Burbeck had breached its Code of Conduct and requiring her attendance at a meeting to answer the allegations set out therein;

● The Second Allegations Letter – ASTC decision to issue a letter on 20 October 2016, also alleging Ms Burbeck had breached the Code of Conduct and also requiring her attendance at a meeting to answer the allegations set out within the letter;

● The February 2017 annual leave approval revocation – the decision of ASTC to revoke approval for Ms Burbeck to take annual leave in February 2017.

[12] Ms Burbeck’s submissions and evidence to the Commission raises more claims than the foregoing matters. Since that is the case, I have had regard to all the evidence and that of the ASTC, and each of the witness statements provided by Georgina Davison, Skye Price and Claire Fisher in making a decision as to whether there has been workplace bullying involving Ms Burbeck.

[13] The six categories of alleged workplace bullying to which I have referred above are the categories I considered at the start of the determinative conference may be arguable as workplace bullying. No evidence led in the determinative conference caused me to form the view that additional categories of matters should be considered in detail for workplace bullying in this decision.

[14] Evidence was received in the determinative conference from Ms Burbeck, her psychiatrist, Dr Bernard Hickey. Each of the persons named, Ms Davison, Ms Price and Ms Fisher gave evidence on their own and on each other’s behalf. Ms Biggi Gosling, the Council’s Human Resources Manager also gave evidence on behalf of Ms Davison, Ms Price and Ms Fisher.

THE COMMISSION’S CONSIDERATION OF ANTI-BULLYING APPLICATIONS

[15] An applicant for an order from the Commission to stop bullying under s.789FC of the FW Act must not only be a worker but one who “reasonably believes that he or she has been bullied at work”, with that belief being actually and genuinely held, as well as it being reasonable in an objective sense. 2 The term “worker” has the same meaning as in the Work Health and Safety Act 2011 (Cth), but does not include a member of the Defence Force.3

[16] Conduct does not occur “at work” merely because it has a substantial connection to work. 4 The question of whether behaviour or conduct occurred “at work” does not necessarily equate to the performance of work and will require a consideration of the context, including custom and practice, and the nature of the worker’s contract.5

[17] Ascertainment of “unreasonable behaviour” in the context of Part 6-4B of the FW Act requires application of an objective test having regard to all the relevant circumstances applying at the time. 6 The Explanatory Memorandum which accompanied the Bill from which this legislation arises makes reference to the earlier majority report of the House of Representatives Standing Committee on Education and Employment, entitled “Workplace Bullying - We just want it to stop” and made the following points about behaviour and its assessment by the Commission:

“109. The Committee went on to note that ‘repeated behaviour’ refers to the persistent nature of the behaviour and can refer to a range of behaviours over time and that ‘unreasonable behaviour’ is behaviour that a reasonable person, having regard to the circumstances may see as unreasonable (in other words it is an objective test). This would include (but is not limited to) behaviour that is victimising, humiliating, intimidating or threatening.” 7

[18] The conduct to be considered is that of natural persons, given that there is no provision in Part 6–4B that suggests bullying at work is something which can be engaged in by a corporation; 8 however the individuals engaging in the unreasonable behaviour need not be workers, for example they may be customers.9

[19] Repeatedly behaving unreasonably implies the existence of persistent unreasonable behaviour and it might refer to a range of behaviours over time. There is no specific number of incidents required for the behaviour to represent ‘repeatedly’ behaving unreasonably. ‘Unreasonable behaviour’ should be considered to be behaviour that a reasonable person, having regard to the circumstances, may consider to be unreasonable. 10 Consideration of the question of whether an individual or group “repeatedly behaves unreasonably” will require a purposive approach and “unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”.11 Further, for conduct to be reasonable it does not have to be the best or the preferable course of action, rather the conduct will be objectively assessed as to whether what was done was done “reasonably”, not whether it could have been done more reasonably or differently.12

[20] It will be necessary for the Commission to determine whether the alleged behaviour actually occurred, and once the necessary findings of fact have been made, the Commission can then determine whether the behaviour was unreasonable. 13

[21] In relation to the risk to health and safety of unreasonable behaviour, there must be a causal link; however, 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. 14 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.15

CONSIDERATION OF MS BURBECK’S COMPLAINTS OF ALLEGED BULLYING

Ms Burbeck’s allegations generally

[22] As set out above, there are 6 main allegations of bullying which require consideration and determination.

[23] While Ms Wickham has since left the employment of ASTC and did not give evidence in these proceedings, the overall evidence before the Commission allows a finding that Ms Burbeck had some significant difficulties with Ms Wickham as her supervisor. She felt that Ms Wickham was insufficiently qualified to hold the position that she did and that in some respects she herself was more qualified. A significant part of the Commission’s dealing with this matter has involved an airing of those concerns, without practical resolution.

[24] Amongst her grievances, and by way of background for matters of timing and context for the bullying complaints she advances, Ms Burbeck thought that her own position should be reclassified, which was not agreed to by Ms Davison in April 2016 and she told Ms Davison she had concerns about reporting to Ms Wickham and another officer “as neither of them were formally qualified to supervise other staff”. 16 Ms Burbeck’s witness statement to the Commission on the subject states:

“Georgina Davison disagreed with me and stated that she did not think formal qualifications were necessary in the position of Programs Team Leader. Georgina and I both agree that we were not speaking critically about Lynda Wickham personally or inappropriately, but about her role more generally.” 17

[25] In May 2016 Ms Burbeck met with Ms Wickham, who appeared to relate to her some of the things that she had previously said to Ms Davison, which Ms Burbeck had regarded as a private discussion. Ms Burbeck says about this incident:

“10. … In addition to discussing our usual work matters, Lynda Wickham also commented on the information I had sent to Georgina Davison when I had emailed her to ask to meet with her. Lynda read aloud this email which I had sent solely to Georgina Davison and which related to the private discussion I had had with her. Lynda Wickham then attempted to illicit from me my thoughts on whether I was happy in my job and whether I had any issues I wanted to discuss with her.

11. I did not mention to Lynda Wickham the concerns I had expressed to Georgina Davison about her working in her role without a qualification. However, I discussed the stress and difficulties that my heavy work load was currently creating for me, and the difficulties I had in planning and preparing quality programs when I was given additional major tasks such as the Million Stories Project.

12. I also expressed to Lynda Wickham my desire to have my position reclassified as a librarian after I graduated from my degree. She stated to me that when she had completed the course of study which she had undertaken some years previously, she did not automatically get her position reclassified to a higher level. She had to wait until a position became available which she then applied for. I was surprised to hear this as I had understood that Lynda Wickham had dropped out of the technician’s diploma shortly after undertaking it. However, I did not question the veracity of Lynda Wickham’s claim about this at that time. Lynda Wickham discussed her own professional development at some length and it was clear to me that she was asserting that she had completed her course of study.

13. Lynda did not offer me any assistance in addressing the issues I had raised about my work load but instead tried to make the issues my fault by suggesting that I needed to learn to manage my time better by undertaking time management training. Lynda Wickham was apparently unaware that I had already undertaken this training during my time working in the library. Furthermore, I had been managing my time very successfully, delivering a large number of quality programs in for the ten years I had worked in the children’s and youth area and that I always received excellent feedback from library patrons and fellow staff on my work.

13. I discussed the new process of making project briefs, and shared something I had learned in studying project management at university. In response Lynda Wickham made an inappropriate comment to me indicating that she thought I knew more than other staff because I had been to university, claiming that I did not know more than other staff. Lynda Wickham also accused me of being patronising to her without supplying me with any details when I asked her how I had been patronising. She would not allow me to discuss the issue with her further. I later decided to speak to the library manager about this inappropriate behaviour.

14. This meeting went for approximately 1.5 hours and I felt stressed and exhausted afterwards. It seemed that the conversation went around in circles with Lynda Wickham trying to turn all the problems we discussed into my problems and not assist me.” 18

Performance counselling – from June 2016

[26] A performance appraisal pro forma was completed by Ms Burbeck and provided to her manager, Lynda Wickham, on 15 June 2016 and was the subject of discussions between the two and Ms Davison on 22 June 2016. Before Ms Burbeck met with the Council representatives, and after she had provided the pro forma to them, they had inserted in the document some feedback to Ms Burbeck both in respect of her own comments and matters they considered important to raise with her.

[27] Each of Ms Burbeck and the ASTC managers were unhappy in the discussion on 22 June 2016 with what had been expressed in different parts of the completed pro forma. In addition, Ms Burbeck puts forward that she was upset by some of the feedback given in the meeting about her communication style, which she considered to be unjustified. Two parts of the performance appraisal form were identified as potentially the subject of unjustified or unreasonable criticism.

[28] The first matter dealt with Ms Burbeck’s consistency with what is referred to as a “personal” Council Value to the effect that “Council employees are adaptable, dedicated and demonstrate high personal integrity”. In response to the question “[w]ere you consistently punctual?”, Ms. Burbeck self-rated herself as “good” and commented “[s]ometimes I’m a little bit late but I stay after 5pm to make up for this. There are some days when I don’t finish until after 5pm anyway.” The feedback from the Management Representatives included an “unacceptable” grading and that “Kate needs to manage her time better. This includes consistently working a 7.6 hour day rather than using TOIL frequently. I also needed to insist that Kate came to work on a Wednesday at 8:30am as there were issues with being late for staff meetings. This instruction was followed.” 19

[29] The second matter relates to Ms Burbeck’s consistency with the “internal” Council Value to the effect that “Council employees treat their fellow employees and the organisation with respect”. In response to the question “[d]id you communicate and work effectively with others in your unit?”, Ms Burbeck self-rated her alignment as “good”, making the comment “I share my ideas and communicate with my colleagues”. The Council’s managers’ response was that Ms Burbeck “needs work” and that “[s]ometimes Kate can come across as a little condescending. She does seem to try not to do this in meetings with whole of staff, however sometimes in one on one meetings she can come across this way. I’d like to see this improve in the coming year”. 20

[30] The three participants discussed this feedback in the meeting, with Ms Davison endeavouring to use some things said by Ms Burbeck in the meeting as illustrations of the feedback she had given.

[31] A comment that Ms Burbeck had been consistently late with reports to the ASTC was withdrawn with the managers agreeing the statement was not accurate.

[32] Ms Burbeck, through her written comments, as well as in the discussion in the meeting used the appraisal as an opportunity to give feedback to her managers and the Council about things she saw as needing improvement in the library and which by all accounts had been concerns held by her for some time. These matters included the need for consultation with employees about decision-making and that without consultation she was hindered in her ability to run existing programs to a sufficient quality. She also gave opinions about the library’s organisational structure. Ms Burbeck’s evidence is that she felt under attack and uncomfortable in the meeting.

[33] The product of the performance appraisal meeting was a view on the part of Ms Davison and Ms Wickham that Ms Burbeck needed greater supervision in the form of weekly meetings with Ms Wickham, as well as needing to undergo training on matters of communication and self-awareness. The former issue stemmed from Ms Davison’s belief that some of Ms Burbeck’s complaints about an unacceptably high workload may have stemmed from poor time management and priority setting. The latter issue stemmed from the managers’ perceptions that Ms Burbeck could appear condescending and patronising in her communications to them and with other staff.

[34] Ms Davison’s evidence is that the need for these subjects to be addressed was not only identified in the meeting, but both were also agreed by Ms Burbeck as matters for action. While I accept the subjects were identified in the meeting, I do not accept they were agreed as matters for action. It is more likely Ms Burbeck was told that action was to be pursued on the subjects, with that being a course she did not actively oppose.

[35] At the conclusion of the meeting on 22 June 2016, Ms Burbeck was not told either as a result of the matters discussed in the performance appraisal meeting or for any other reason, that she would be required to be involved in a formal performance management process.

[36] Ms Davison says that she avoided that term. However, straight after the performance appraisal meeting finished she went to see the Council’s Human Resources Manager, Tony Jennison:

“25. During the performance appraisal Kate agreed to attend weekly meetings with Lynda to monitor her workload because Kate said her workload was too big. It was also to ensure she settled into the team and the new structure and improve Kate’s communication skills. It was not labelled as performance counselling or management because I did not want to frighten her.

26. When the performance appraisal meeting was complete, I went directly to Tony Jennison Acting Director Corporate and Community Services to discuss how the meeting had proceeded. I explained my concerns about Kate’s communication, not settling into the new structure and how we were planning to address these with weekly meetings between Kate and Lynda. Tony wrote on the performance appraisal ‘support performance management for Kate’ which may have been because I had labelled the weekly meetings ‘performance management’ without thinking. If so, this was an honest mistake on my part.

27. There was no collusion between anyone. There is no requirement for the CEO to have signed off on anything prior to organising these meetings. The words ‘performance counselling’ were not used to describe these meetings; it was weekly meetings to ensure Kate is on track with her work - this was to avoid putting pressure on Kate or scaring her.” 21

[37] Mr Jennison then wrote on the performance appraisal:

“I concur with comments made by the Manager Library Services. Support performance management process for Kate” 22

[38] The Alice Springs Town Council Enterprise Agreement 2015 23 (the ASTC Agreement or the Agreement) sets out the agreed basis for performance management of the Council’s employees. The Agreement makes a distinction between performance appraisal and performance counselling with the relevant definitions being as follows;

“B1 Performance appraisal system

Performance appraisal is an essential tool that is relevant at all levels of Council. It provides a means to build trust through open and regular discussions and improve organisational performance by linking individual, team and organisational objectives and outcomes. It also provides a means to define workplace expectations, recognise good performance and to manage performance issues, identify learning and development opportunities.”

“B2 Performance counselling

Performance counselling is used to address performance issues relating to an employee. Its objective is to assist the employee through appropriate training, coaching and/or mentoring.”

[39] Demonstrably the conversation between Ms Burbeck, Ms Wickham and Ms Davison on 22 June 2016 was consistent with the procedures set out within the Agreement for performance appraisal. The Agreement provides the following procedures for performance counselling:

“B2.1 Where a manager/supervisor has concerns relating to performance or the ability of the employee to conform with all requirements of their position description, the manager/supervisor will raise these concerns in an initial performance counselling session with the employee and, where appropriate, work with them to develop a performance improvement strategy against which progress will be monitored.

B2.2 At these meetings the following should be identified:

• areas where the employee has not demonstrated the required standard of performance or has not conformed with all requirements of their position description

• expected standards of performance or requirements of the position description

• strategies and support required to enable the employee to reach the required performance level, or conform with requirements of their position description including a time frame for improvement or conformance

B2.3 Should the performance management strategy be unsuccessful, action may be taken with the approval of the CEO. This action may take the form of:

• demotion to a position reduced in classification and salary

• transfer to another position/department

• termination of employment

B2.4 Written notification of actions must be provided to the employee.”

[40] The decision taken by Ms Davison and/or Mr Jennison about the commencement of performance counselling of Ms Burbeck appears consistent with this clause. A person under a performance counselling plan, as that term is used within the ASTC Enterprise Agreement, is not necessarily subject to disciplinary action, unless the processes set out in Clauses B2.3 and B2.4 are involved. If those clauses are not invoked, the more appropriate description is that the employee is being managed in accordance with the standardised and agreed procedure set out within the Enterprise Agreement.

[41] Mr Jennison did not give evidence in these proceedings. Ms Davison’s evidence, elliptical in many matters, includes her giving several different responses to the same or similar questions and her recollection being unclear in parts. Despite Ms Davison being reluctant to term what she had put to Mr Jennison as being matters of either “performance counselling” or “performance management” and endeavouring to put forward the view that these were merely to be weekly meetings with Ms Burbeck to ensure she was on track with her work, I find that her intention was actually to initiate a formal performance management process in respect of Ms Burbeck. Ms Davison’s discomfort in using the terminology “performance counselling” or “performance management” is regrettable, and I have no doubt that it was her intention to put around Ms Burbeck’s performance a formal process by which she could be called to account in the event there was no or insufficient change.

[42] On its own though this decision by Ms Davison and supported by Mr Jennison is not unreasonable conduct on their part and is instead reasonable management action carried out in a reasonable manner. Plainly, at the time each made their decision they had some concerns about Ms Burbeck’s capacity to perform to the required standard on the two subjects referred to. It can hardly be unreasonable on the part of either of them or the ASTC to put in place the process they did. While Ms Davison’s discomfort in using the terminology “performance counselling” or “performance management” may be regrettable, as well as hardly best practice, the avoidance of clear and specific communication to affected employees about their decisions is nonetheless a common fault found in many frontline managers.

[43] Because the decision by the ASTC to commence performance counselling of Ms Burbeck is not unreasonable conduct on the part of the Council or any person and is instead reasonable management action carried out in a reasonable manner, it is not conduct that would lead to a finding of bullying within the meaning of s.789FD(1) of the FW Act.

Initiation of disciplinary meeting in relation to Ms Burbeck’s response to the “respect” email – 23 June 2016

[44] On 23 June 2016, Clare Fisher, the Library Operations Team Leader, sent an email to a number of employees about what she regarded to be “a slip in the amount of respect shown between some team members”. The email was sent at 11:20 AM and comprised the following:

“Hi all,

I’m a little disappointed that l have to say this, but I’ve noticed lately that there seems to be a slip in the amount of respect shown between some team members.

1. Check the way you talk to people - even if you don’t intend to, are you coming across as patronising? Rude? Pushy? Disrespectful?

2. Do you communicate with each other the same way you would with your Team Leaders or Manager? Everyone deserves the same level of respect - irrespective of employment level, age or education.

3. If a team member is trying to teach or share some knowledge with you, please listen with respect and take it on board.

4. If YOU are imparting knowledge to another team member, don’t use patronising language or belittle them. No one will learn while being made to feel insignificant.

5. Remember that everyone learns at different rates and in different ways - the way YOU learn, is not necessarily the way THEY learn and there is no right or wrong, just different.

Any negative feelings towards each other should not be brought to the work environment - let’s build each other up instead of tearing people down.

Respect is a two-way street - you give it to get it - so choose your attitude, be patient and understanding with others and let’s all enjoy and be thankful we have such a wonderful workplace and colleagues.

Clare

Clare Fisher

Library Operations Team Leader

Alice Springs Public Library” 24

[45] About an hour later Ms Burbeck replied to Ms Fisher and all those who had received the original email as well as copying Mr Jennison into her reply, with her email responding as follows:

“Hi Clare,

While I strongly agree with you about the importance of respect and good communication, in particular, being positive rather than negative, I think it’s important to deal with specific issues directly, with the people involved or concerned, wherever possible. Buy this I mean that if someone has made a complaint to you, or to their supervisor, it will be brought to the attention of the person accused of being rude or patronising, and it can be appropriately addressed. Furthermore, this process ensures that other staff members who have not behaved thus are not left wondering if perhaps they have accidentally offended someone or been misinterpreted. Furthermore, by communicating directly, and following appropriate procedures, the process allows for fair and open communication, and for the person has been accused of behaving in an offensive way to have the opportunity to reply to the accusations, and possibly refute them.

Alternatively, if no one complains, or no one is spoken to directly about offensive behaviour, staff can continue with their work as usual without having to be concerned that something they’ve said or done has been misunderstood or upset someone.

In line with this, and in the interests of good communication within the library, I will mention that recently, I’ve been told that my behaviour has been found to be patronising. I know who this issue is with, all parties have had an opportunity to address it, and I’ve refuted the claims.

I am curious to know how these issues came to your attention, and if you intend to raise them with the people whose behaviour you to found to be inappropriate.

I hope this does not come across as patronising, rude or demeaning, but rather, in the spirit in which is intended: to promote honest, open, effective communication which demonstrates respect and concern for everyone and their wellbeing.

Thank you,

Regards,

Kate Burbeck

Children’s and Youth Services Officer

Alice Springs Public Library” 25

[46] Shortly after receiving that email, Ms Fisher responded again with her own email asking the team to disregard Ms Burbeck’s email which she considered to be an unrelated issue. Her communication comprised the following:

“Hi team,

It may be difficult, but please disregard the below email from Kate - this is an unrelated issue.

Please rest assured, my initial email was only meant as a reminder to ALL of us, to keep the positive team spirit and support happening - especially in the rather trying times we’ve had lately.

My intention was not to upset or make people feeling guilty, I just want us all to be mindful when communicating with each other. We have such a diverse group of people working here and each and every one of you bring something wonderful to the team - I would much prefer that we focus on those positives, than dwell on negatives.

Thank you all for your continued support and effort - I’m thankful every day I made the move to Alice

Please come and see me if you have any concerns.

Clare Fisher

Library Operations Team Leader

Alice Springs Public Library” 26

[47] Later the same day Ms Burbeck was provided with a letter from Ms Davison calling her to account for her earlier email. The letter alleged that Ms Burbeck had contravened the Council’s Code of Conduct and that it was the second time this year that she had demonstrated similar contravention. She was required to attend a meeting between Ms Fisher and Mr Jennison to answer the allegation. Ms Davison’s letter consisted of the following:

“Dear Ms. Burbeck

WORKPLACE COMMUNICATION

On Thursday 23 June 2016 Operations Team Leader Clare Fisher sent an email to all Library staff regarding communication and respect. Your response to this was to email your views on this issue to all of the Library staff.

This action is in direct contravention of Section 4.4 Council’s Code of Conduct which states:

An employee must behave in a professional manner in the course of carrying out their duties which includes treating a fellow employee and all those in the workplace with courtesy, dignity and respect at all times.

This is the second time this year you have demonstrated similar inappropriate behaviour. On the 26 April 2016, you were warned and made to apologise by me, regarding an inappropriate email you sent to Yarra Libraries.

In order for you to provide an explanation regarding this important issue, you are requested to attend a meeting between Clare Fisher and Manager, Human Resources Tony Jennison in the CCS meeting room at 9.00am on Monday 27 June 2016.

As this matter may be of a serious nature, disciplinary action could result.

You therefore have the opportunity to be accompanied by a relevant union representative or support person.

Yours faithfully,

Georgina Davison

Manager, Library Services” 27

[48] Ms Fisher’s witness statement does not address directly the subject of how the matter came to move managerially between her last response to all recipients including Ms Burbeck at 1:47 PM and the letter being issued by Ms Davison to Ms Burbeck later that day. Ms Davison’s witness statement also does not address the detail of the managerial response between the two points. Ms Davison in her witness statement cavils with the proposition that this was a disciplinary letter:

“31. There was no disciplinary letter issued to Kate on 23 June 2016: it was an invitation to attend a disciplinary meeting. After Kate had sent her reply to Clare’s email and copied Tony Jennison into the email, Tony emailed and phoned me to advise me that Kate’s email was inappropriate. (I had not seen the email at that stage.) I read the email and then discussed with Tony what action we should take. We decided that we should have a disciplinary meeting with Kate to address her communication style. I was on holidays at the time of the meeting on 29 June 2016.” 28

[49] The response that this was no disciplinary letter is not only counterfactual but also not consistent with the meaning of the correspondence within the context of the procedures set out within the ASTC Enterprise Agreement. Clause C2 .1 of the Agreement provides:

“C2 Disciplinary meetings

C2.1 When a manager/supervisor has concerns relating to breaches of policy or the inappropriate behaviours of an employee a disciplinary meeting will be arranged to include:

• employee

• manager/ supervisor

• HR department

• subject to availability, a relevant union representative or employee support person (unless waived by the employee)”

[50] Although the Council’s Code of Conduct is not called up with in the Enterprise Agreement it plainly must be regarded as a “policy” for the purposes of clause C2.1. Respectfully, a letter to a Council employee that alleges they have been “in direct contravention” for the second time of the Council’s Code of Conduct; that they are required “to provide an explanation regarding this important issue”; and that because the “matter may be of a serious nature, disciplinary action could result” can be seen in no other way than as being a disciplinary letter.

[51] The letter was and must reasonably be viewed as a “disciplinary letter” and it is disingenuous to endeavour to cast it in another light.

[52] The allegation is made in the 23 June 2016 letter that Ms Burbeck contravened clause 4.4 of the Council’s Code of Conduct. The relevant part of the Code, referred to above in Ms Davison’s letter, casts an obligation on employees to observe certain standards of personal conduct including the element referred to, which is within Clause 4.4, entitled “Bullying”. The part of the clause referred to within the 23 June 2016 letter omits the important sentence immediately before it which provides context to the quoted sentence by providing a definition of “bullying behaviour” and an expectation that employees behave in a professional manner. To the extent that the sentence quoted in the Code is an elaboration of what is bullying, it is doubtful that Ms Burbeck’s behaviour in sending the email would meet the defined standard. In addition, some further context is given by the other parts of the wider Clause 4, which is as follows:

“4. Standards of Personal Conduct

An employee will observe the following principles of conduct:

4.1 Selflessness

An employee must not act in order to make financial gain or other benefits for themselves, their families or their friends.

4.2 Integrity

An employee must not:

• be influenced in the performance of their duties by any financial or other obligation that they might have in a private capacity to individuals or organisations; or

• act for an improper or ulterior purpose or on irrelevant grounds.

4.3 Objectivity

Matters being considered by an employee should be dealt with consistently, promptly and fairly. This involves dealing with matters in accordance with approved procedures, in a non-discriminatory manner, and in conformity with natural justice.

When using any discretionary powers, an employee should ensure that they take all relevant facts into consideration, have regard to the particular merits of each case, and not take irrelevant matters or circumstances into consideration.

4.4 Bullying

An employee will not engage in bullying behaviour, that being unreasonable behaviour, both obvious and hidden, that intimidates, humiliates or causes harm to an individual or group within a workplace.

An employee must behave in a professional manner in the course of carrying out their duties which includes treating a fellow employee and all those in the workplace with courtesy, dignity and respect at all times.

4.4.1 Behaviour towards others generally

An employee must:

• efficiently and politely serve the public and Council customers;

• treat members of the public fairly and equitably and with respect, courtesy, compassion and sensitivity;

• treat an elected member of Council (Member) with respect and dignity;

• not misuse their position to influence others in order to gain an advantage for themselves or others;

• refrain from any form of conduct, in the performance of their duties, which may cause any reasonable person unwarranted offence or embarrassment or undertaking improper conduct or partial performance of their public duties;

• not act in relation to others in a manner that is unreasonable, unjust, oppressive or discriminatory; and

• at all times conduct themselves in a manner which maintains and strengthens the public’s trust and confidence in the integrity of the Council and must never undertake any action which will bring the Council, employees or Members into disrepute.

4.5 Openness

An employee should be open and clear about all the decisions and actions that they take.”

[53] The remaining parts of the clause are not relevant to this decision.

[54] Following the issuing of the disciplinary letter, a meeting was held on 29 June 2016 between Ms Burbeck, with Mr Turner on her behalf and an ASU representative by phone, Ms Fisher and Mr Dennison. Ms Fisher records the conduct and outcome of the meeting as follows:

“19. Kate was reluctant to answer direct questions about her motive and why she hadn’t sought clarification of the issue prior to the meeting. Tony then suggested a short break so he and I could discuss Kate’s written response and actions that may be implemented by Council. Before leaving the room, the ASU representative asked that no disciplinary action be taken against Kate.

…

21. Once the meeting reconvened, Tony explained we were eager to reach a positive outcome due to Kate’s 10 year working history with Council. He then explained that at this stage, Council would not be undertaking any disciplinary action, but we required the following outcomes from Kate:

• an apology to myself regarding Kate’s inappropriate email

• participation in performance counselling sessions regarding Kate’s communication style” 29

[55] There is nothing within Ms Burbeck’s email which could be regarded as “unreasonable behaviour, both obvious and hidden, that intimidates, humiliates or causes harm to an individual or group within a workplace”, being the test established by the Code of Conduct. The high point of the complaint about her email appears to be that she used the words:

“In line with this, and in the interests of good communication within the library, I will mention that recently, I’ve been told that my behaviour has been found to be patronising. I know who this issue is with, all parties have had an opportunity to address it, and I’ve refuted the claims.

I am curious to know how these issues came to your attention, and if you intend to raise them with the people whose behaviour you to found to be inappropriate.”

[56] It could be that by using the words “I know who this issue was with” that the communication might somehow cause alarm to whomsoever that person was; however there is nothing within Ms Burbeck’s words or any of the evidence which would give rise to the view that the words were somehow a threat. While such a person might have some level of alarm, identification of a complainant is hardly something unknown to the nature or progression of workplace complaints. People who make complaints in the workplace about others of an attitudinal, skill or behavioural nature must inevitably expect the person about whom they complain to either know or suspect where the complaint came from. It would be an unusually vulnerable person who felt threatened by Ms Burbeck’s language as set out in her 23 June 306 email.

[57] None of the evidence of any of the Persons Named in this matter would support a finding that Ms Burbeck’s communication by email on 23 June 2016 was in contravention of any part of the Council’s Code. That much should have been obvious to Ms Davison and anyone else who advised on the decision to write the disciplinary letter. As a result, the disciplinary letter from Ms Davison must be regarded as likely retaliatory and punitive for an action from a staff member that was considered perhaps to be annoying, unwarranted, or misguided. Consequently, it cannot be regarded as reasonable management action carried out in a reasonable manner.

[58] The finding is therefore open to the Commission that Ms Davison’s letter of 23 June 2016 which initiated a disciplinary meeting in relation to Ms Burbeck’s response to the “respect” email of the same day was unreasonable conduct and was not reasonable management action carried out in a reasonable manner, which is a foundation element for a finding of bullying within the meaning of s.789FD(1) of the FW Act.

ASTC’s dealing with two workplace grievances lodged by Ms Burbeck in July 2016

[59] During July 2016 Ms Burbeck lodged with the Council two grievances separately pertaining to Ms Wickham and Ms Davison. The two written grievances were left on Ms Davison’s desk on 19 July 2016. Ms Davison says that she did not read either of the letters and instead took them directly to the Council’s human resource staff. 30

[60] Ms Davison’s opinion is that the grievances had been lodged by Ms Burbeck since “she did not want to attend the performance counselling sessions” that had been arranged by that time. 31

[61] The first grievance appears to have been lodged by Ms Burbeck on 8 July 2016 and relates to an allegation about Ms Wickham and things she said in the course of a meeting on 22 June 2016 that Ms Burbeck in any event did not attend. Ms Burbeck had discussed with Ms Wickham the fact that staff had not been noting holiday program bookings on the appropriate booking sheet:

“Prior to this meeting, on the same morning of the 22nd June 2016, I had gone to the information desk and opened the school holiday program booking folder. In doing so, a handwritten note had fallen out of the folder. The note contained information regarding a patron’s request to book children into holiday program activities, and the patron’s contact details. I checked the programs that the note referred to and I saw that the patron had not been booked into the activities as per the information on the note. I then phoned the patron and confirmed that they wished to be booked into the activities referred to on the note. I then booked them into the activities. The note was not signed by a staff member so I did not know who had written it. Shortly after this Danielle Schaeche arrived at the information desk and when I asked her whose handwriting she thought was on the note, she indicated it was Jerry’s.

Danielle left the information desk and shortly afterwards Lynda walked past. I explained to Lynda how I had found the note, that I had called the patron and that I had booked the patron’s children into the activites, but that I was concerned that someone had not completed the booking properly. I also told Lynda that someone had informed me that it was Jerry’s handwriting on the note. I asked Lynda if she would try to resolve the problem as my supervisor, and my expectation was that she would speak directly with the person who had left the note, if possible.” 32

[62] Apparently Ms Wickham had undertaken to raise this matter in the operational team meeting on 22 June 2016 together with advice about the need for staff to follow the appropriate procedure. The allegation made by Ms Burbeck is that Ms Wickham lied in the meeting about the problem which had arisen, saying something to the effect of “that because of people not following correct procedures, kids had missed out on participation in the programs”. 33 Ms Burbeck says that Ms Wickham had told her that she had told a “white lie” in the meeting. The “white lie” is said to be the claim that “kids had missed out”, when in actuality no child had missed participation in the program. Ms Burbeck was greatly concerned that it would be obvious to those participating in the meeting not only that the information was a lie, since no one had missed out but also that its source would be seen as her by those in the meeting.

[63] This first grievance from Ms Burbeck was considered by a panel of people including Ms Price and Ms Gosling. Ms Price had only come to her position of Director Corporate and Community Services on 18 July 2016. She and Ms Gosling met with Ms Burbeck on 21 July as well as interviewing a number of other people, including Ms Wickham. 34

[64] The outcome of the investigation of the first grievance was communicated to Ms Burbeck in a meeting held on 29 July with the following set out in a note sent to Ms Burbeck on 2 August 2016:

“In response to the grievance dated 1 July 2016 the panel found that in the staff meeting referring to the incident regarding the holiday program booking process, Lynda did not use any staff names. Therefore Kate’s claims relating to the damage to her reputation are unsubstantiated.

Further, no bullying claim could be substantiated. Kate made reference to a meeting which she did not attend. Her claims on what occurred at that meeting are hearsay.” 35

[65] The second grievance lodged by Ms Burbeck related to the conduct of the performance appraisal meeting in June 2016. This matter also was investigated by the Council using the same process as referred to immediately above. The outcome report on the second grievance was in the following terms:

“Kate made several claims regarding her performance appraisal which was conducted on 12 June 2016.

The appraisal meeting was conducted by Georgina who had been Kate’s supervisor for the majority of the past 12 months. Lynda was, as Kate’s current supervisor also present during the meeting. The panel found that the performance appraisal process was conducted in a compliant manner and that it was not utilised as a disciplinary tool as claimed by Kate.

It is apparent that Kate’s time management has an opportunity for improvement. Evidence of this can be seen from the late submission of her performance appraisal. It was due 3 May 2016 and was submitted by Kate to her supervisor on 15 June 2016 (after returning from Long Service Leave on 1 April 2016 Kate was absent only on 13 and 26 April 2016 as well as 16-18 May 2016 due to illness).

The claims of slander and defamation as well as bullying through Kate’s performance appraisal could not be substantiated.

Officers have a responsibility to respect the views of others in particular their supervisors even if they do not agree with them.

A difference of opinion does not constitute bullying. Furthermore, constructive feedback about opportunities for improvement in a formal performance appraisal meeting does not constitute slander and defamation. Discussion related to opportunities for training, mentoring and support are routinely discussed during all performance appraisals.

Kate’s concept of the performance appraisal process has identified an opportunity for Council’s performance appraisal template and guidelines to be reviewed.” 36

[66] Ms Price recalls in connection with this allegation that Ms Wickham had acknowledged to those investigating the complaint that she had done the wrong thing, however, in deciding whether to sanction Ms Wickham, Ms Price took into account that there had been no attribution to an individual staff member of the claim that “kids had missed out”. Ms Price’s witness statement on the subject relates the following about the outcome meeting:

“7. Later, 29 July, a summary of claims was prepared. Subsequently, Kate was invited to attend a grievance outcome meeting 2 August, from 1:00pm, until 2:00pm. Kate approached the meeting in a combative manner. Kate did not enable me to provide her with advice about the outcome of her grievances. Instead, she was intentionally aggressive and somewhat conceited in her approach. Kate was courteously thanked for her attendance at the meeting and politely provided with a written summary of the grievance outcomes. I suggested to Kate that she might like to read the written summary and she took the opportunity to do so.

8. Kate was visibly dissatisfied when she concluded perusing the document. Kate was focussed upon the subject of Lynda Wickham’s qualifications and raised other matters, too. I advised Kate that we were respectful of privacy legislation and that if she has an interest in the qualifications of individual staff members that she should discuss them directly, with the individual concerned. I reiterated to Kate that Human Resources would not be providing information relating to other staff members. Kate interrupted me on more than one occasion when I was part way through a sentence.

9. During the meeting Kate was extended the opportunity to speak freely. She went back over her grievances and sought to revisit elements of the grievances. In some instances Kate provided definitions of bullying, in an authoritative manner. Kate was permitted to methodically raise all of the things that she wanted to share about the elements of the grievances. When she had concluded, she was reminded that an investigation had been completed.” 37

[67] A review of these two grievances and the process by which the Council considered them does not disclose any inappropriate or unreasonable handling. There is nothing within the process by which the matters were considered or decided upon which would disclose unreasonable conduct by any person toward Ms Burbeck.

[68] The outcome in respect of the first grievance is logical in the circumstance. Ms Burbeck had not been in attendance at the meeting and was not in a position to directly identify what may or may not have been said in the meeting. The information which the Council took into account included material from people who had been directly involved in the meeting. There is nothing within the material before the Commission which would suggest that the Council should not have accepted the direct evidence of those in attendance. Further, even had it accepted Ms Burbeck’s contention that somehow comments made in the meeting were obviously referable to her, it would be well within the bounds of reasonable decision-making to conclude that the conduct complained about and its potential breach of accepted norms of behaviour in the Council was of a very low level and that no further action was required in relation to the complaint.

[69] There is no unreasonable conduct on the part of the ASTC in respect of Ms Burbeck in relation to her first July grievance. The actions of the ASTC in relation to the grievance were reasonable management action taken in a reasonable manner.

[70] The outcome in respect of the second grievance is similarly logical in the circumstance. The complaint is, within the context of my analysis of the performance appraisal meeting set out above, without foundation. There were behaviours on the part of Ms Burbeck that required correction through some mechanism. The Council was within its rights to require that be done within the performance counselling processes of the Enterprise Agreement. In the material Ms Burbeck provided to the Commission about this grievance she sets out at some length her contention that being told that her demeanour could be viewed as condescending by some amounted to defamation on the part of the person communicating that information to her:

“We discussed this point at some length. I asked Georgina what she was referring to with this comment. She told me that another staff member (she would not say who it was) had told her that I had been patronising to her. Georgina told me she thought I would benefit from some sort of selfawareness training, so I could become more aware of how I come across to others. I said that being patronising was a very subjective accusation, and that it was a matter of perception, not an objective evaluation of my performance. She said that it was her prerogative to put her opinion into my performance appraisal. I disagreed that the allegations had been substantiated. Georgina told me that during the meeting that we’d had to discuss my role, she recalled that I’d been patronising to her then also. She repeated some things she vaguely remember that I’d said, mimicking my assertive tone at the time. She claimed that it was partly because I’d used her name that she thought I’d been patronising. When I said that was just her perspective, she asserted firmly that it was the ‘reality’. I said firmly, ‘‘no, Georgina, it’s subjective”. She then said ‘See! See! (pointing at me) you’re doing it now! She then looked at Lynda for confirmation of this allegation. I signed the performance appraisal with the caveat that I wrote a comment on it stating that Georgina’s comment about me being condescending was subjective and unsubstantiated, and such issues or complaints against me would be better addressed using appropriate methods. This comment about me is a defamatory, ad hominem attack on my character and it is damaging to my professional reputation. That it remains written on my performance appraisal constitutes defamation. Furthermore, if someone is telling other staff members that I have patronised them when this is an untrue statement which damages my reputation, and if Georgina is furthering this allegation without seeking evidence to substantiate it or refute it, both Georgina and the third party are guilty of slander” 38

[71] While that may be her view, it was apparently equally the view of those conducting the performance appraisal that there was some level of condescension exhibited on occasion by Ms Burbeck to others. Her supervisors were in a position to objectively assess that and communicate their concern to her. The fact that they did so is within their right as well as obligation to raise. An employee seen as being condescending to others may well not be complying with the relevant standards of workplace behaviour. It must be borne in mind that by the time of the performance appraisal Ms Burbeck had some apparent difficulty with Ms Wickham, whom she thought was underqualified, particularly in comparison with her own qualifications. Rather than attacking this feedback as being slanderous or defamatory Ms Burbeck may have been better advised to seek details of what was considered to be the condescending behaviour and accept that some change may be required in her communication style.

[72] In the overall context of the evidence before the Commission as well as considering the state of relationships between all concerned, Ms Burbeck’s complaint that what had been said to her in the performance appraisal meeting amounted to “slander and defamation as well as bullying” is nothing more than overstated rhetoric. There is no evidence that anything said in the meeting fits the definition of any of those terms.

[73] There was no unreasonable conduct on the part of ASTC in respect of Ms Burbeck in relation to her second July grievance. The actions of the ASTC in relation to the grievance were reasonable management action taken in a reasonable manner.

[74] Because the Council’s actions in relation to both of Ms Burbeck’s grievances were not unreasonable conduct on the part of the Council or any person and is instead reasonable management action carried out in a reasonable manner, it is not conduct that would lead to a finding of bullying within the meaning of s.789FD(1) of the Act.

The First Allegations Letter – 12 October 2016

[75] On 7 October 2016 Ms Davison reported hearing Ms Burbeck speak in a raised voice to Ms Wickham who was still at that time her supervisor. Ms Davison’s evidence on the subject includes:

“36. I was in my office when Kate was speaking over the top of and raising her voice at Lynda Wickham regarding her work. I heard Lynda say ‘Kate it’s your job’ and mentioned about time management and planning. Kate kept repeating herself loudly and speaking over the top of Lynda and Lynda stopped speaking. She ended the conversation by saying ‘righto Kate’. I was just about to get up and intervene as Kate was very disrespectful to Lynda.

37. I asked Kate to meet with me at 4pm on that day to discuss the incident that had occurred in the morning. Kate had indicated that she wanted a support person with her which I initially agreed to. I then spoke with Skye Price about Kate having a support person and she advised me that it was not necessary as it was not a disciplinary meeting, simply a meeting to discuss the incident. I went to meet with Kate and said that she would not need a support person to which she replied ‘it’s my right’.

 24   Exhibit A1, Attachment H.

 25   Ibid.

 26   Ibid.

 27   Ibid, Attachment G.

 28   Exhibit R2.

 29   Exhibit R3, Witness Statement of Clare Fisher.

 30   Exhibit R2, [33]; Exhibit A1, [16].

 31 Exhibit R2 [34].

 32   Exhibit A1, Attachment C.

 33   Exhibit R5, Respondent’s Further Bundle of Documents, Attachment 10.

 34 Exhibit R4, Witness Statement of Skye Price, [4] – [6].

 35   Exhibit A1, Attachment J.

 36   Ibid.

 37   Exhibit R4.

 38   Exhibit A1, Attachment F.

 39   Exhibit R2.

 40   Ibid, [45].

 41   Exhibit A1, Attachment N.

 42   Exhibit A1, Attachment Q.

 43   Exhibit R5, [15].

 44   Ibid.

 45   Exhibit R1, Respondents’ Outline of Submissions, [29].

 46   Exhibit A1, [22]; Attachment P.

 47   Ibid, Attachment O.

 48   Ibid, [22]; Attachment P.

 49   Ibid, Attachment R.

 50   Exhibit R2, [46].

 51   Exhibit R4.

 52   Exhibit A1, Attachment V.

 53   Exhibit R5, Attachment 16.

 54   Exhibit A1, Attachment U.

 55   Exhibit A1, Attachment V.

 56   Person Named Response Form, F74, Davison, p.10.

 57   Ibid, p.11.

 58   Exhibit A1, Attachment V.

 59   Newcastle Wallsend Coal Co Pty Ltd v Workcover Authority (NSW) (Inspector McMartin) [2006] NSWIRComm 339; 159 IR 121 at [301].

 60   Thiess Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252, 78 NSWLR 94 at [65]-[67]; Abigroup Contractors Pty Ltd v WorkCover Authority of New South Wales (2004) 135 IR 317 [58].

 61   Macquarie Concise Dictionary definition.

 62   Ms SB [2014] FWC 2104.

 63   Exhibit A1, Attachment B, [46].

 64   Exhibit A2, Witness Statement of Dr Bernard Hickey.

 65   Ibid, Attachment B, [36].

 66   Ibid, Attachment B, [38].

 67   Ibid, Attachment E, p.2.

 68 Exhibit R5, Attachment [13].

 69   Exhibit A1, [23].

 70   Exhibit R4, [14]

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