Carol Anne Gray v Great Lakes Aged and Invalid Care Association Limited T/A Glaica House Hostel
[2017] FWC 7048
•22 DECEMBER 2017
| [2017] FWC 7048 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Carol Anne Gray
v
Great Lakes Aged and Invalid Care Association Limited T/A Glaica House Hostel; Christine Desmond; Josephine Bain
(AB2017/235)
COMMISSIONER SAUNDERS | NEWCASTLE, 22 DECEMBER 2017 |
Application for an FWC order to stop bullying – whether applicant bullied at work – reasonable management action – application dismissed.
[1] Ms Carol Anne Gray alleges that she has been bullied at work within the meaning of s.789FD of the Fair Work Act 2009 (Cth) (Act). In her application to the Fair Work Commission (Commission) for an order to stop bullying (Application) dated 20 April 2017, Ms Gray named Ms Christine Desmond and Ms Josephine Bain as the persons who she alleges have engaged in bullying behaviour.
Background
[2] Ms Gray is employed as a Catering Assistant by Great Lakes Aged and Invalid Care Association Limited (GLAICA). She has been employed by GLAICA since 10 April 2006. GLACIA is a not-for-profit organisation that provides aged care services at a number of facilities in the Forster/Tuncurry area in New South Wales, including GLAICA House where Ms Gray works. As a Catering Assistant, Ms Gray is responsible for duties which include picking up meals from the main kitchen and delivering meals to the residents on a trolley, preparing menus for the residents, preparing tea, coffee and toast, cleaning of the cluster kitchen and washing up and returning clean dishes to the main kitchen. During her shift Ms Gray works from a cluster kitchen which is a small kitchen with a dishwasher, fridge and crockery. Each cluster kitchen is responsible for a number of sections of residents at GLAICA House. Each section of residents has 15 residents, except one which has 22 residents.
[3] Ms Desmond is employed as the Catering Supervisor at GLAICA House and she commenced employment there in October 2007. As the Catering Supervisor, Ms Desmond is responsible for cooking all meals for the residents, catering purchases and orders, creating budgets and reports to management on costings and working with the Food Authority for the yearly inspection of the facility.
[4] Ms Bain is employed as the Manager Resident Care at GLAICA House and commenced employment there on 10 September 2012. As the Manager Resident Care, Ms Bain is responsible for managing approximately 165 employees at the GLAICA House facility and overseeing the clinical and personal care of residents at the facility. She is also responsible for the rostering of clinical and care employees. Since 2017, she has assisted with the management of the catering department while Mr John Quinn, General Manager of GLAICA, has been involved in managing the construction of GLAICA’s new independent living units in Forster.
[5] Ms Gray has identified a number of alleged incidents occurring between 2012 and 2017 which she maintains amount to bullying behaviour by Ms Desmond and Ms Bain respectively towards her. The relief sought by Ms Gray includes an order that GLAICA, Ms Desmond and Ms Bain apologise to her for the way she has been treated.
[6] Ms Gray has not been at work at GLAICA since 6 October 2017. She has made a claim for workers’ compensation and liability was accepted by the insurer on 10 November 2017. 1
Hearing
[7] I heard this matter on 23 and 24 November 2017. At the hearing, Ms Gray represented herself and Ms K Lopes, solicitor, was granted permission to represent GLAICA, Ms Desmond and Ms Bain.
[8] Ms Gray gave evidence in support of her case. She also called evidence from:
● Ms Narelle Lean, an employee of GLAICA,
● Mr Melvin Anthony Broussard, Ms Gray’s son;
● Ms Sharyn Roberts, a former employee of GLAICA; and
● Ms Joanne Bramble, a former employee of GLAICA.
[9] Ms Desmond and Ms Bain each gave evidence, as did Mr John Quinn, General Manager of GLAICA, and Ms Karen McBride, Quality Coordinator of GLAICA House.
Jurisdiction
[10] Section 789FF of the Act confers on the Commission a broad power to make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent a worker from being bullied at work.
[11] In order for the Commission to exercise its power under s.789FF of the Act to make any order it considers appropriate in respect of the Application, there are three conditions that must be met:
(a) First, Ms Gray must have made an application under s.789FC of Act;
(b) Secondly, the Commission must be satisfied that Ms Gray has been bullied at work by Ms Desmond and/or Ms Bain; and
(c) Thirdly, the Commission must be satisfied that there is a risk that Ms Gray will continue to be bullied at work by Ms Desmond and/or Ms Bain.
Application
[12] The first condition requires Ms Gray to have made an application under s.789FC of the Act. Section 789FC of the Act provides as follows:
“789FC 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, and outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.
(3) The application must be accompanied by any fee prescribed by the regulations.
(4) The regulations may prescribe:
(a) a fee for making an application to the FWC under this section; and
(b) a method for indexing the fee; and
(c) the circumstances in which all or part of the fee may be waived or refunded.”
[13] There is no contest that Ms Gray is a worker, reasonably believes that she has been bullied at work, and she has made an application to the Commission for an order under s.789FF of the Act. Accordingly, there is a valid application before the Commission.
What constitutes bullying?
[14] The second condition requires the Commission to be satisfied that Ms Gray has been “bullied at work” by Ms Desmond and/or Ms Bain.
[15] Section 789FD of the Act sets out the test for establishing whether a person has been bullied at work. It provides as follows:
“(1) A worker is bullied at work if:
(a) while the worker is at work in a constitutionally-covered business:
(i) an individual; or
(ii) a group of individuals;
repeatedly behaved unreasonably towards the worker, or a group of workers of which the worker is a member; and
(a) 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.”
Repeatedly behaves unreasonably
[16] The expression “repeatedly behaves unreasonably” in s.789FD(1)(a) of the Act is to be interpreted and applied with reference to the policy or purpose of Part 6–4B of the Act, which is to establish a mechanism by which the bullying of workers at work may be stopped.
[17] The test is objective. What is reasonable is a question of fact. Behaviour is unreasonable if a reasonable person, having regard to the circumstances, may consider it to be unreasonable. 2
[18] In determining whether behaviour concerning or constituting discretionary managerial decisions directed to a worker is unreasonable it is useful to consider whether the behaviour “lacks an evident and intelligible justification”. 3 Conduct does not have to be the best or preferable course of action to be reasonable.4
[19] It is apparent from the reference to “repeatedly” in s.789FD(1) of the Act that a one-off incident will not be a sufficient basis for the making of an application to the Commission. 5 Provided there is more than one occurrence, there is no specific number of incidents required to meet the condition of “repeated” behaviour, nor does the same specific behaviour have to be repeated.6 The statutory provision requires repeated unreasonable behaviour by the individual or individuals towards the applicant worker or a group of workers to which the applicant belongs.7
Reasonable management action
[20] Section 789FD(2) of the Act provides an exception to the definition of “bullied at work” in circumstances where the alleged behaviour can be said to be reasonable management action carried out in a reasonable manner.
[21] The Explanatory Memorandum 8 relevantly provides in relation to s.789FD(2) of the Act as follows:
“New section 789FD – When is a worker bullied at work?
…
111. The Committee also found that balanced against this definition is the need for managers to be able to manage their staff. New subsection 789FD(2) is included to clarify that reasonable management action when carried out in a reasonable manner will not result in a person being ‘bullied at work’.
112. Persons conducting a business or undertaking have rights and obligations to take appropriate management action and make appropriate management decisions. They need to be able to make necessary decisions to respond to poor performance or if necessary take disciplinary action and also effectively direct and control the way work is carried out. For example, it is reasonable for employers to allocate work and for managers and supervisors to give fair and constructive feedback on a worker’s performance. These actions are not considered to be bullying if they are carried out in a reasonable manner that takes into account the circumstances of the case and do not leave the individual feeling (for example) victimised or humiliated.”
[22] The expression “management action” is not confined only to managerial decisions but encompasses a wider range of conduct or behaviour which affects an employee, including such things as performance and disciplinary matters, the allocation of work and the way in which work is to be carried out. 9
[23] To determine whether the action constitutes “reasonable management action” it is necessary to undertake “an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time”. 10 The test for reasonable management action is whether the “management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’.”11 I adopt Commissioner Hampton’s explanation of these concepts in GC (at [56]):
“In general terms this is likely to mean that:
• management actions do not need to be perfect or ideal to be considered reasonable;
• a course of action may still be ‘reasonable action’ even if particular steps are not;
• to be considered reasonable, the action must also be lawful and not be ‘irrational, absurd or ridiculous’;
• any ‘unreasonableness’ must arise from the actual management action in question, rather than the applicant’s perception of it; and
• consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances.”
Bullying alleged by Ms Gray
[24] At the commencement of the hearing, the parties were provided with a document prepared by the Commission, on the basis of the various materials filed by Ms Gray in support of her Application, setting out a list of 21 allegations of bullying conduct. The list was prepared in an attempt to ensure, as a matter of fairness, all parties understood the allegations Ms Gray was making and pursuing in these proceedings. Ms Gray was given the opportunity to review the list of 21 allegations and confirm whether the list was accurate and/or complete, and if not, whether she wanted any allegations amended, removed or added to the list. On the second day of the hearing, Ms Gray advised the Commission that there was an additional allegation she wanted to add to the list of bullying allegations she was pursuing in these proceedings. 12 With the addition of that allegation (Allegation 22), Ms Gray confirmed that the list of bullying allegations was accurate and complete, and the only allegations of bullying that were being pursued in these proceedings were the ones on the revised list of 22 allegations.13
Credibility and reliability of key witnesses
[25] Before I examine each of the 22 specific allegations of bullying in detail, it is appropriate that I address the credibility and reliability of the key witnesses in the proceedings.
[26] I found Ms Desmond to be a credible and reliable witness. She gave her evidence openly; she was not argumentative and answered the questions put to her in cross examination directly and responsively. Where Ms Desmond was not able to recall a particular matter relating to an alleged event some years ago, she said that she could not recall the matter. It would have been easy, and perhaps tempting, for her to deny each allegation put to her, particularly in circumstances where there were no witnesses to most of the alleged events on which Ms Gray relies. To her credit, Ms Desmond did not take that course.
[27] Ms Bain is an experienced manager of aged care facilities. She has worked in managerial roles in aged care facilities across a number of states in Australia. It is apparent from the evidence given by Ms Bain in these proceedings that her management style is fair but firm. She seems focused on ensuring residents receive appropriate care and work is conducted by employees in an efficient and reasonable manner. Ms Bain has a good recollection of most of the events relating to the allegations made against her. I found her evidence to be reliable and credible.
[28] Ms Gray has worked as a Catering Assistant for GLAICA House for more than 11 years. She enjoys caring for the residents in the facility and gets on well with a number of her work colleagues. However, Ms Gray perceives that she has been treated unfairly and unreasonably by management at GLAICA House in relation to a range of matters, many of which relate to managerial decisions concerning changes in work hours, shifts, and the way in which work is done in an effort to improve efficiency and the services provided to residents at the facility. Ms Gray’s concerns date back to 2012 and her resentment at a range of these managerial decisions seems to have grown over time to a point where she is now unwell, absent from the workplace, and is receiving medical treatment. In my view, it is apparent from the evidence given by Ms Gray in these proceedings that she has taken a very strong view about what she perceives to be the unreasonable and unfair conduct of managers at GLAICA House which has coloured her evidence and impacted adversely on the reliability of her recollection of disputed conversations and events in these proceedings. For these reasons, I generally prefer the evidence of Ms Desmond and Ms Bain to that of Ms Gray where there is a conflict.
Allegation 1
[29] Ms Gray contends that Ms Desmond engaged in unreasonable management action in March 2012 by reducing her rostered hours from 72 hours per fortnight to 60 hours per fortnight.
[30] The allocation of work to employees in accordance with a roster is management action. The reasonableness of rostering an employee to work a certain number of hours or type of shifts during a period is not determined based on how the worker subjectively perceives that action. An objective assessment is required of the action taken and other relevant contextual matters that existed at that time which gave rise to the action, such as the provisions of the employee’s contract of employment, any applicable industrial instruments and the requirements of the employer’s business.
[31] The Aged and Home Care, NSWNA and HSU East Multi-Enterprise Agreement 2011-2014 (Agreement) applied to Ms Gray’s employment in 2012. Clause 13.3(b) of The Agreement provides that:
“13 EMPLOYEE ENGAGEMENT
…
13.3 Part-time Employees:
(b) Before commencing part-time employment, the employer and employee will agree in writing the guaranteed minimum number of hours to be worked and the rostering arrangements which will apply to those hours.
…
16 ROSTERS
…
16.2 (a) A roster may be altered at any time so as to enable the service of the organisation to be carried on where another employee is absent from duty on account of illness or in an emergency. Where such alteration involves an employee working on a day which would have been his or her rostered day off, such employee may elect to be paid at overtime rates or have a day off in lieu which shall be mutually arranged.
(b) Sub-clause (a) shall not apply where the only change to the roster of a part-time employee is the mutually agreed addition of extra hours to be worked such that the part-time employee still has four rostered days off in that fortnight, as the case may be.”
[32] When Ms Gray commenced employment with GLAICA on 10 April 2006 it was pursuant to a written contract of employment dated 19 April 2006 (Employment Contract) that confirmed she was employed as a part-time Care Service Employee Grade 1. 14 The Employment Contract provided that her hours of work were as follows:
“Hours of Work
As a Permanent Part-Time Employee you will be employed for minimum of ten (10) hours per week and extra hours over a fortnight period may be offered.
A condition of employment is that your rostered working days and shifts may be subject to change to suit operational requirements, although every effort will be made to roster you for duty at times which are mutually convenient. Reference to 'shifts' include lengths and shift times. You will be given two weeks' notice of roster changes, but a shorter period of notice may occur to emergencies. Shifts may also change with appropriate notice when there is a need for daytime training or work monitoring.”
[33] It is not in dispute between the parties that for some time prior to 2012 Ms Gray regularly worked 72 hours per fortnight. Ms Desmond gave evidence that at the time when Ms Gray’s hours increased to 72 hours per week there had been an increase in residents at GLAICA House from about 70 to 100 residents and there were also a number of catering employees taking annual leave. These matters led to Ms Desmond deciding that additional Catering Assistants needed to be employed by GLAICA to meet the increased demands. Ms Desmond says that during the period between the increase in residents at GLAICA and the additional Catering Assistants being employed, a number of employees, including Ms Gray, agreed to work additional hours per week to meet the increased demands. Ms Desmond gave evidence, which I accept, that Ms Gray was aware from the onset that the increase in hours was only temporary until additional Catering Assistants were employed. 15
[34] In March 2012, Ms Gray’s rostered hours were changed to 60 hours per fortnight. Ms Desmond says that this change was because additional Catering Assistants had been employed by GLAICA. In cross-examination Ms Gray conceded that at the time in 2012 she did not consider Ms Desmond’s actions to be bullying. 16
[35] On 10 May 2012, Ms Gray lodged a complaint with the Fair Work Ombudsman (FWO) regarding underpayment of her hourly rate and the reduction in her rostered hours. 17 On 27 July 2012, the FWO found that the complaint could not be sustained because, based on the information provided, Ms Gray was being correctly paid as a Care Service Employee Grade 1 and there had been no agreement to vary the minimum hours specified in the Employment Contract to 72 hours per fortnight or any level over 10 hours per week.
[36] Given that a number of the examples of bullying alleged by Ms Gray against Ms Desmond relate to changes made to the roster by Ms Desmond, I make the following observations:
(a) Neither the Agreement nor the Employment Contract confer on Ms Gray a right or entitlement to any fixed rostering arrangement. It is an express condition of her employment that her rostered working days and shifts are subject to change to suit the operational requirements of GLAICA. This means that as a general proposition she is not entitled to work on any particular days, shifts, hours or kitchen cluster area and Ms Desmond, who is responsible for rostering Ms Gray to work on behalf of GLAICA, may change her rostered days, shifts, hours or kitchen cluster area for legitimate operational reasons provided that Ms Gray is rostered to work at least 10 hours per week; and
(b) The Employment Contract provides that Ms Gray “will be given two weeks' notice of roster changes, but a shorter period of notice may occur to emergencies.” The circumstances which would fall within the category of ‘emergencies’ are not defined in the Employment Contract. I am satisfied that an example of an emergency would include, but is not limited to, where there is a change in the operational requirements of GLAICA that was not anticipated when the roster was issued. There may be circumstances where a failure to comply with a contractual requirement to provide an employee with a period of notice of a change in roster would result in management action being found to have not been carried out in a reasonable manner. Much will depend on the facts.
[37] I am satisfied that Ms Desmond’s action in March 2012 of reducing Ms Gray’s rostered hours from 72 hours per fortnight to 60 hours per fortnight was reasonable management action carried out in a reasonable manner, for the following reasons:
(a) Ms Gray was not entitled to be rostered to work more than 10 hours per week. I accept Ms Desmond’s evidence that the increase in the hours of Ms Gray to 72 hours per fortnight was not agreed to be a permanent change. This is consistent with the fact that GLAICA was recruiting additional Catering Assistants at the time and Ms Gray was not given any oral or written promise that her hours of work had changed to 72 hours per fortnight;
(b) It is clear that Ms Gray considered the reduction in her hours from 72 to 60 per fortnight to be unfair because it had the negative effect of reducing her income and placing pressure on her ability to live and support her children. 18 However, Ms Gray’s perception of the apparent unreasonableness of the reduction of her hours does not itself make Ms Desmond’s action unreasonable. In circumstances where Ms Gray did not have a right to work at least 72 hours per fortnight and there were legitimate business reasons to reduce her hours from 72 to 60 per fortnight, namely the employment of additional Catering Assistants to service additional residents in the facility, it was reasonable for a manager such as Ms Desmond to amend a roster that had been in place for some time to meet the needs of the business; and
(c) Ms Gray was given notice of the change in her rostered hours by the posting of new rosters after the change from 72 hours per fortnight to 60 per fortnight was introduced.
Allegation 2
[38] Ms Gray contends that Ms Desmond engaged in bullying behaviour on 8 March 2012 by yelling at Ms Gray, “You’ve done it now, you’re losing more hours” in relation to Ms Gray going to Mr Quinn about her reduced hours.
[39] Ms Gray produced a number of handwritten diary notes which she says were made at about the time of certain events at GLAICA House. On 9 July 2012, Ms Gray made a diary note as follows:
“Around the beginning of March I noticed the Roster had been changed. I had been taken off and dropped to 60 hours also lossing [sic] every second weekend. I went to John Quinn and asked why my hours had been cut and nobody else. Also asked why Chris Desmond husband Robert had gained so many hours including weekends. John said he would talk to Chris.
When returning to work around the 8 March I was yelled at by Chris Desmond for going to John Quinn, where I was told “you done it now your lossing [sic] more hours.”
Chris stated about budget, but everyone else is gaining hors [sic]. I have been training people for 6 years. Chris put people from [Break tough??] in kitchen on weekends which meant I had to train them as I was supervising on the weekend, doing all cooking and making sure Residents need [sic] where meet [sic].” 19
[40] Ms Desmond gave evidence that she does not recall this alleged interaction, however she denies that she has ever yelled at Ms Gray. 20 Ms Desmond gave further evidence that she considers the correct procedure if an employee has a problem, such as with regards to the roster, is for them to go to her first and then go “over her head”, if they are not happy with the answer she gives. She says that a lot of the time that procedure was not followed and she found out about things later from management.21
[41] I find that in early March 2012 Ms Gray went to Ms Quinn to complain about the reduction in her hours from 72 hours per fortnight to 60 hours per fortnight. Mr Quinn advised Ms Desmond of Ms Gray’s complaint and Ms Desmond, in turn, had a conversation with Ms Gray in which she raised the issue of Ms Gray going “over her head” to Mr Quinn. I am satisfied that it is reasonable for a supervisor, who is responsible for the supervision and rostering of employees, to request that, in the first instance, an employee raise any issues with regards to the roster directly with the supervisor before going to senior management. What would not be reasonable in the circumstances would be to yell at an employee in a manner that leaves that person feeling victimised or humiliated.
[42] I find that it is probable that Ms Desmond was frustrated during the conversation because Ms Gray had gone “over her head” to Mr Quinn to complain about the roster. However, on the balance of probabilities I accept Ms Desmond’s evidence that she did not yell at Ms Gray as alleged or threaten to take hours away from Ms Gray. The evidence did not demonstrate that Ms Gray “lost more hours” after the alleged incident on 8 March 2012, which is what Ms Gray contends Ms Desmond said would happen to her as a result of her complaint to Mr Quinn. Accordingly, I find that this allegation has not been proven on the balance of probabilities.
Allegation 3
[43] Ms Gray contends that Ms Desmond engaged in unreasonable management action in 2012/3 by only rostering Ms Gray on 10:00am to 6:30pm shifts.
[44] Ms Gray relies on a handwritten diary note dated 10 September 2013 in relation to this allegation which relevantly provides as follows:
“I arrived at work at 10pm [sic]. Around 1030 I asked Chris why I was getting all 10 to 6.30pm. I told her I know you don’t like me but for 6 months I am walking to and from work even in the rain. She said I will take [sic] to you later.” 22
[45] As the Catering Supervisor, Ms Desmond was responsible for rostering catering employees within GLAICA with shifts to work. Ms Desmond gave evidence that she could not recall whether Ms Gray was only being rostered to work 10:00am to 6:30pm shifts in 2012/3. Ms Desmond gave evidence, which I accept, that when she prepares the rosters she tries to look at the jobs that are being done and what needs to be done on each shift and then tries to roster employees on that will do the best in that position.
[46] Ms Gray requested a meeting with Ms Bain on 28 November 2013. Ms McBride attended the meeting as Ms Gray’s support person. During the meeting Ms Gray raised a number of concerns that she had including that she would like to work some different shifts rather than always 10:00am to 6:30pm shifts as she walked to and from work. 23 Ms Bain agreed to investigate this concern and on 2 December 2013 Ms Bain sent a letter to Ms Gray confirming that she had requested Ms Desmond to place Ms Gray on more early shifts commencing with the new roster.24 Ms Bain gave evidence that this change in rostered shifts did occur. Ms Gray accepts that her rostered shifts were changed after Ms Bain made the request to Ms Desmond.25
[47] I am satisfied that Ms Desmond did roster Ms Gray to work only on 10:00am to 6:30pm shifts for a period of time in 2012/3, but she did not do so intentionally. Ms Desmond prepared the rosters acting in the best interests of the business and changed the rosters for Ms Gray, by giving her a variety of shifts, after the request was made by Ms Gray. I am satisfied that Ms Desmond’s conduct in this regard was reasonable management action carried out in a reasonable manner and did not constitute bullying conduct.
Allegation 4
[48] Ms Gray contends that Ms Desmond has engaged in bullying behaviour since 20 May 2012 by regularly embarrassing, humiliating, intimidating and belittling Ms Gray. Ms Gray alleges that this bullying by Ms Desmond began when Ms Gray made a complaint to the FWO on 20 May 2012. 26 No particulars or examples of the way in which Ms Desmond embarrassed, humiliated, intimated or belittled Ms Gray were provided.
[49] Ms Desmond denies that since 20 May 2012 she has embarrassed, humiliated, intimidated or belittled Ms Gray at work. She says that she considers the complaint Ms Gray made to the FWO as finalised and she does not think Ms Gray should keep going back to it. 27
[50] Ms Roberts and Ms Bramble gave evidence that they were bullied by Ms Desmond during their employment with GLAICA, however neither of them witnessed Ms Desmond bully Ms Gray in any way. 28 Given that Ms Roberts and Ms Bramble did not witness any of the alleged bullying conduct of Ms Desmond towards Ms Gray and the evidence they gave about being bullied by Ms Desmond was, for the most part, general in nature, I will give the evidence of Ms Roberts and Ms Bramble limited weight in support of Allegation 4.
[51] I prefer Ms Desmond’s evidence in relation to this allegation over that given by Ms Gray, Ms Bramble and Ms Roberts, particularly in light of the lack of particulars provided in relation to the allegation and my assessment of Ms Desmond as a credible and reliable witness. Accordingly, I find on the balance of probabilities that Ms Desmond did not embarrass, humiliate, intimidate and/or belittle Ms Gray.
Allegation 5
[52] Ms Gray contends that on 10 September 2013 Ms Desmond engaged in bullying behaviour by asking all staff except Ms Gray to leave the kitchen and then backing Ms Gray into the corner and saying awful and demeaning things in a raised voice while pointing her finger in Ms Gray’s face.
[53] Ms Gray relies on a handwritten diary note dated 10 September 2013 in relation to this allegation which provides as follows:
“I arrived at work at 10pm [sic]. Around 1030 I asked Chris why I was getting all 10 to 6.30pm. I told her I know you don’t like me but for 6 months I am walking to and from work even in the rain. She said I will take [sic] to you later.
Around 2pm Chris told all staff to leave the kitchen, she back me into the corner and with her finger in my face said awfull [sic] and demeaning things about me. The bullying at this time was constant.
I told her I would be writing a letter to John Quinn. She said you just do that” 29
[54] Ms Desmond gave evidence that she has no recollection of this incident 30 and denies that she has at any stage acted in an aggressive manner towards Ms Gray.31
[55] Ms Gray’s contemporaneous note supports her allegation against Ms Desmond, as does Ms Gray’s oral evidence to the same effect. The conversation followed an earlier conversation regarding Ms Gray questioning why she was only being rostered to work 10:00am to 6:30pm shifts. I find it is probable in the circumstances that Ms Desmond asked the other staff to leave the kitchen because she considered the conversation to be private as it related to Ms Gray’s rostered shifts.
[56] I find on the balance of probabilities that Ms Desmond did not say awful and/or demeaning things in a raised voice while pointing her finger in Ms Gray’s face. No evidence was adduced of the “awful and demeaning things” that Ms Desmond allegedly said to Ms Gray during the conversation and Ms Desmond denies acting in an aggressive manner towards Ms Gray, such as pointing her finger in her face. I accept Ms Desmond’s evidence in relation to this allegation. Accordingly, I find that this allegation has not been proven on the balance of probabilities.
Allegation 6
[57] Ms Gray contends that Ms Desmond engaged in unreasonable management action in late 2013 by rostering Ms Gray on nine shifts in a row one fortnight.
[58] Ms Desmond admits that on one occasion in late 2013 she did roster Ms Gray for nine shifts in a row one fortnight, but says it was an accident and it was fixed once the issue was raised with her. 32
[59] The Agreement provides as follows in relation to the arrangement of hours of an employee covered by the Agreement, such as Ms Gray:
“15.2 Arrangement of Hours
…
(c) Each employee shall be entitled to not less than four full days in each fortnight free from duty, or by agreement, two full days in each week free from duty (rostered days off), and every effort shall be made for such rostered days off to be consecutive, unless otherwise agreed.
(d) Each shift shall consist of no more than 10 hours of work at ordinary time (not including unpaid breaks) provided that an employee shall not work more than seven consecutive shifts unless the employee so requests and the employer agrees.”
[60] While rostering Ms Gray to work nine shifts in a row was not in accordance with clause 15.2(d) of the Agreement, I accept Ms Desmond’s evidence that it was an accident that was rectified once she was notified of her mistake. In the circumstances I find that such action was an inadvertent oversight on the part of Ms Desmond and, while not ideal, was not unreasonable. Accordingly, I am satisfied that Ms Desmond’s actions in late 2013 of rostering Ms Gray on nine consecutive shifts in a fortnight was reasonable management action carried out in a reasonable manner and does not constitute bullying.
Allegation 7
[61] Ms Gray contends that Ms Desmond engaged in unreasonable management action in November 2014 by removing Ms Gray from rostered shifts on a Saturday when she receives penalty rates.
[62] Ms Desmond admits that the roster has changed but says the change was because the facility has grown from 50 beds to 146 beds and the needs of the facility have changed. Notwithstanding this change, Ms Desmond maintains that Ms Gray has been given one weekend shift a fortnight, the same as all other staff. 33
[63] Ms Desmond does not deny that Ms Gray has been rostered to work fewer weekend shifts since changes were made to the roster than was the case prior to that time. However, in circumstances where Ms Gray does not have a right or entitlement to work a certain number of weekend shifts and the roster changes were made to all staff (in a similar way) to meet the needs of the business, I am satisfied that Ms Desmond’s conduct was reasonable management action carried out in a reasonable manner and does not constitute bullying.
Allegation 8
[64] Ms Gray contends that Ms Desmond engaged in unreasonable management action in 2017 by rostering Ms Gray to work in the Tasman cluster in which she had not worked in for 2 years.
[65] Ms Desmond admits that in 2017 she rostered Ms Gray to work in the Tasman cluster, however she says it was an accident and it was rectified as soon as she was notified of the event. 34
[66] I am satisfied that Ms Desmond did not intentionally roster Ms Gray to work in the Tasman cluster as some form of punishment, retribution or other unreasonable conduct. In the circumstances I find that such action was an inadvertent oversight on the part of Ms Desmond and was not unreasonable conduct towards Ms Gray.
Allegation 9
[67] Ms Gray contends that Ms Desmond engaged in unreasonable management action in February 2017 by reducing the length of Ms Gray’s shifts from 7 hours to 6 hours which restricted her ability to complete tasks in a timely manner and meant she needed to work ten shifts per fortnight instead of nine to earn the same remuneration.
[68] There was a meeting held on 11 January 2017 by Ms Desmond and Ms Bain with the catering employees to discuss changes to cluster kitchen positions. During the meeting, Ms Desmond explained to the employees that from 13 February 2017 the cluster kitchen shifts were being restructured from 3 x 7 hour shifts to 4 x 6 hour shifts. The new kitchen clusters shifts were as follows:
● Cluster kitchen 1 (CL1) – Tasman & GE working 8:00am to 2:30pm;
● Cluster kitchen 2 (CL2) – BS & BN working 7:30am to 2:00pm;
● Cluster kitchen 3 (CL3) – BE & BW working 7:30am to 2:00pm; and
● Cluster kitchen 4 (CL4) – AS, AN, GW working 7:30am to 2:00pm.
[69] The changes had the effect of increasing the total hours per day in the clusters kitchen by 3 hours, from 21 hours per day to 24 hours per day and reducing the number of residents that three of the cluster kitchens were responsible for from 45 residents to 30 residents. 35 In addition, a ‘K5 shift’ was removed from the roster. The K5 position worked 5 hours per day seven days per week and was responsible for cleaning and restocking two cluster kitchens per day. Ms Desmond gave evidence that the K5 position was removed because it was not working because the person was not performing up to the requisite standard.36
[70] All catering staff were informed during the meeting that they could ask Ms Desmond for extra shifts if they wished to keep their total number of hours the same. 37 Ms Gray did not attend this meeting as she was not rostered to work on that day, however she was advised about the matters discussed during the meeting shortly after on her return to work.
[71] On 18 January 2017, Ms Bain issued a memo to all Care Service Employees outlining their duties with regards to changes to cluster kitchen duties commencing on 20 February 2017 instead of 13 February 2017. This memo was a direct response to rumours and negative comments that were being spread by employees in relation to the changes. 38
[72] On 10 February 2017, a duty list was placed in each cluster kitchen on the information clipboard to inform employees of the changes prior to the changes commencing on 20 February 2017. 39
[73] On 18 February 2017, Ms Gray made an entry in the Continuous Improvement Log (2017/794) as follows:
“On February 13 2017 started new shifts in kitchen cluster BS & BN finishing at 2pm. I have not had time for afternoon tea. I did my time in motion with Karen. Each section takes 20 to 25 min to set up. This means I am not in BS to help with breakfast. The residents are complaining to me and are upset having to wait for care staff. Care staff are unable to run trays serve breakfast with the change of hours.”
[74] Ms McBride actioned Ms Gray’s complaint on 20 February 2017 by forwarding a copy to Ms Desmond to be tabled at a meeting on 21 February 2017.
[75] On 23 February 2017, Ms Gray made an entry in the Continuous Improvement Log (2017/803) as follows:
“Chris Desmond wrote on New Duty Listing that it take [sic] 10 min to set up BS & BN for breakfast. This is not true. It takes 20 to 25 min. Carol, Lucy, Mary. I have done my time in motion the kitchen cluster staff need a meeting with John Quinn, Michelle Fairbanks Lana Burnett to express their concerns in safe & threating [sic] environment.”
[76] Ms McBride actioned Ms Gray’s complaint on 24 February 2017 by forwarding a copy to Mr Quinn.
[77] In cross-examination, Ms Gray conceded that when she was informed of the change in shifts in January 2017 she did not think it was a form of bullying. Rather, she thought it was a way for GLAICA to save money and make the employees do more work. 40 She went on to explain that that when she found out that the shifts were being changed and she would have to change from working nine shifts per fortnight to ten shifts per fortnight to maintain her hours she approached Ms Desmond and said “I'm losing money again, Chris” and Ms Desmond responded, “Yes, I know that”. Ms Gray contends that Ms Desmond’s response was bullying, as was the fact that she was losing hours.41
[78] I am satisfied that Ms Desmond’s action in February 2017 by reducing the length of Ms Gray’s shifts from 7 hours to 6 hours was reasonable management action carried out in a reasonable manner, for the following reasons:
(a) The changes to shift lengths which took effect from 20 February 2017 did not just impact Ms Gray. The changes affected all catering employees at GLAICA House. I do not consider Ms Gray to have been targeted or singled out in any way to be given fewer hours. The changes were as a result of a bona fide decision of management to restructure the kitchen clusters shifts in an attempt to improve efficiency and productivity. In July 2017, Ms Gray was moved to a different cluster kitchen shift. That cluster kitchen shift had been allocated with 6.5 hour shifts, which meant that Ms Gray’s rostered hours were increased as a result of her being moved. In my view, this further supports the view that Ms Desmond had not targeted or singled out Ms Gray to reduce her hours;
(b) Ms Gray was not entitled to be rostered to work more than 10 hours per week, nor was she entitled to be rostered to work 7 hours per shift or nine shifts per fortnight; and
(c) The proposed changes to the roster were communicated to employees on 11 January 2017 and to Ms Gray shortly after 11 January 2017. Because the changes were not coming into effect until 20 February 2017, Ms Gray was given more than two weeks’ notice of the roster changes in accordance with her Employment Contract.
Allegation 10
[79] Ms Gray alleges Ms Desmond engaged in unreasonable management action on 9 March 2017 by not taking concerns raised by Ms Gray during the meeting seriously or recording those in the minutes of the meeting.
[80] On or about 23 February 2017, Ms Gray, Ms Lean and Ms Lucille Andrade each made an entry in the Continuous Improvement Log requesting a meeting to discuss their concerns with the roster changes that commenced on 20 February 2017. Ms Gray contends that she was not advised of the progress of this complaint and for the next 3 weeks she was “left in limbo” as to whether or not the meeting would take place. 42 Ms McBride gave evidence, which I accept, that Mr Quinn told her on 24 February 2017 that he did not want to hold a meeting with the catering employees before they had at least attempted to take their issues to Ms Desmond. Mr Quinn did not want to undermine Ms Desmond by allowing employees to bypass her and not give her a chance to investigate the issues raised. Ms McBride denies that the employees were “left in limbo” and says that she spoke to them on 24 February 2017 and told them they needed to speak to Ms Desmond on her return to work on 26 February 2017.43
[81] A meeting was organised to be held on 9 March 2017 between Ms Desmond, Ms Bain and the catering employees, including Ms Gray, to discuss the changes to cluster kitchen positions that commenced on 20 February 2017. Ms Desmond explained to staff at this meeting that she had spent eight shifts working with employees in different cluster kitchens and had found that two of the cluster kitchen shifts (CL1 and CL4) required an extra 30 minutes as the employees were required to walk further between sections and were responsible for more residents. Ms Desmond was of the view that the other two cluster kitchen shifts (CL2 and CL3) did not require an extra 30 minutes because they did not have as far to walk between sections.
[82] There are a number of separate allegations that arise from this meeting (i.e. Allegations 10, 11 and 18). As a result I will not set out all the evidence that relates to this meeting at this stage, however I have had regard to all the relevant circumstances in considering this allegation.
[83] Following the meeting on 9 March 2017, Ms Gray made a complaint to Ms Desmond that the minutes of the meeting did not include certain things that were discussed during the meeting. When this issue was raised the minutes of meeting were amended and redistributed. 44 The amendment was the inclusion of an additional discussion item “SOME STAFF NEED TO MOVE FASTER”.
[84] Ms Desmond maintains that she takes all complaints and concerns raised by staff seriously. She concedes that she is not the best minute taker and finds it hard trying to run a meeting and take minutes of the meeting at the same time.
[85] I am satisfied that on 9 March 2017 Ms Desmond took the concerns raised by Ms Gray during the meeting seriously and to the best of her ability recorded a summary of the matters discussed during the meeting in the minutes of the meeting. It is unsurprising that the minutes of the meeting are relatively brief and may miss some matters in circumstances where the same person who conducted the meeting also took notes. The fact that Ms Desmond revised the minutes of meeting when she was made aware that a certain matter had not been included in the minutes supports my finding that she did not intentionally leave out matters from the minutes of the meeting because she had not taken those matters seriously. In all the circumstances, I find on the balance of probabilities Ms Desmond took the concerns raised by Ms Gray during the meeting on 9 March 2017 seriously and did not deliberately refuse to record any matters in the minutes of the meeting. Any deficiency in the minutes taken by Ms Desmond was not intentional and does not constitute bullying conduct.
Allegation 11
[86] Ms Gray contends Ms Desmond engaged in unreasonable management action on 9 March 2017 by granting an extra 30 minutes per shift to the sections in which Ms Gray does not work.
[87] Ms Lean also gave evidence that when concerns were raised that there was not enough time for cluster kitchen shifts CL2 and CL3 to complete all their work within 6 hours, Ms Bain told the employees they will need “to move faster”. 45
[88] Ms Desmond gave evidence that she spent eight shifts working with employees in different cluster kitchens after the changes commenced in February 2017 to gain an understanding of whether the changes were working. She says that she formed the view that cluster kitchens shifts CL1 and CL4 should be given an additional 30 minutes because the employees were not getting their afternoon teas completed in time due to having more residents in those sections. She also formed the view that cluster kitchen shift CL3, where Ms Gray usually works, did not require the additional 30 minutes because they only have 15 residents that need afternoon tea. 46
[89] I am satisfied that Ms Desmond’s action on 9 March 2017 by granting an extra 30 minutes per shift to the sections in which Ms Gray does not work was reasonable management action carried out in a reasonable manner. As the Catering Supervisor, Ms Desmond is responsible for deciding how the kitchen cluster shifts will be structured, including the amount of time allocated to each kitchen cluster shift. I accept Ms Desmond’s evidence that she had genuinely formed the view that only cluster kitchens shifts CL1 and CL4 required an additional 30 minutes allocated to those shifts. She did not make this decision without any basis for it. She spent eight shifts working with different employees to gain an understanding of what was working and what was not working. She ultimately found that CL3 did not require an additional 30 minutes allocated to that shift. While Ms Gray did form a contrary view to Ms Desmond based on her own abilities to perform her duties within the allocated time, I am nevertheless satisfied that Ms Desmond’s action was reasonable management action carried out in a reasonable manner.
Allegation 12
[90] Ms Gray contends that Ms Desmond engaged in unreasonable management action by rostering Ms Gray to work with Ms Wendy Croft, a Care Service Employee at GLAICA with whom she has experienced conflict, and failing to respond to complaints raised by Ms Gray about such conflict.
[91] On 11 May 2016, Ms Gray made a complaint that Ms Croft pushed her when talking about Ms Croft having collected the resident’s water bottles too early. Ms Bain conducted an investigation into the matter and concluded that Ms Gray’s allegation had not been proven. Ms Bain sent a letter to Ms Gray in relation to her finding as follows:
“I have received your complaint dated May 11, 2016, that a CSE, Wendy Croft, pushed you when talking about the fact that Wendy had collected the residents' water bottles too early.
I have spoken to Wendy Croft and have also spoken to a number of residents who were present in the dining room when you and Wendy were discussing your concerns. I have also spoken to a Registered Nurse who was approached by a resident about this matter and another Registered Nurse who witnessed some of the incident.
CSE Wendy Croft admits that she did touch you on the arm but disputes that she pushed you. Wendy stated that she had collected the jugs for her to wash and that you were too upset to listen to her when she tried to explain that she was not expecting you to wash the water jugs.
A number of residents that I spoke to were very upset with your manner in the kitchen and that you were "ranting" and "carrying on", and slamming cupboard doors. One of the Registered Nurses agreed with this assessment and said you were banging cupboards and complaining. None of the residents I spoke to witnessed Wendy push you, although one resident did state that Wendy touched you on your arm or hand.
I have spoken to Wendy about the inappropriateness of her touching you and she is willing to apologise for that. However, I do not believe Wendy pushed you. I do believe that your manner and the way you managed this situation was very poor. It is unacceptable that the residents complained about your behaviour and your poor anger management. If this situation arises again you are to speak to your immediate supervisor, Chris Desmond, who will then let me know how she wishes to manage it.” 47
[92] On 28 June 2017, Ms Gray made a handwritten note in relation to another incident between her and Ms Croft (on 27 June 2017) as follows:
“On Tue at 11.55 I was serving out meals in BS. Wendy Croft started yelling at me in front of the residents. Wnedy has no respect for my time and is leaving kitchen fillfee [sic] taking me at least 40 minutes to clean the the [sic] kitchen. Resident were very upset and reported her yelling at me to team leaders Haley and Shane.”
[93] Ms Lean gave evidence that Ms Gray was regularly rostered to work in cluster kitchen CL2 where Ms Croft was also rostered to work. She contends that Ms Gray reported her concerns verbally to both Ms Desmond and Ms Bain and lodged numerous Continuous Improvement Logs about the situation but Ms Gray never received any responses to the Continuous Improvement Logs and continued to be rostered in the same area as Ms Croft. 48 In cross-examination, Ms Lean conceded that she is not a member of management and would not have known if an investigation was in fact undertaken in respect of the issues raised by Ms Gray about Ms Croft.49
[94] Ms Desmond gave evidence that Ms Gray was asked to put her concerns in writing because Ms Desmond did not roster Ms Croft to work; that was the responsibility of Ms Bain, and consequently she needed to raise the issue with Ms Bain. 50 Ms Desmond says that when she raised the issue with Ms Bain she did in fact separate Ms Gray and Ms Croft from working together.51
[95] Ms Bain gave evidence that in July 2017 she transferred Ms Gray to a different section of clusters kitchens as she and Ms Croft were having ongoing difficulties working together. The move was shortly after the incident between Ms Croft and Ms Gray on 27 June 2017. Ms Gray was happy with the transfer as the new section of clusters gave Ms Gray 30 minutes more per day to fulfil her duties as there was further to walk between the cluster kitchen to which she was moved. 52
[96] I am satisfied that Ms Bain and Ms Desmond did respond in a reasonable and timely way to complaints raised by Ms Gray about her conflict with Ms Croft. It is clear from Ms Bain’s letter dated 11 May 2016 and her decision to move Ms Gray shortly after the incident on 27 June 2017, that when Ms Gray made a complaint about Ms Croft’s behaviour Ms Bain took steps to investigate the complaint and take appropriate action. Because Ms Croft was a Care Service Employee, Ms Desmond was not responsible for rostering Ms Croft on shifts: that was the responsibility of Ms Bain. I accept Ms Desmond’s evidence that she did raise the issue with Ms Bain and appropriate steps were taken to respond to the issue. I am satisfied in the circumstances that Ms Desmond’s action was reasonable management action carried out in a reasonable manner.
[97] I find on the balance of probabilities that Ms Desmond did not engage in unreasonable management action by rostering Ms Gray to work with Ms Wendy Croft, a Care Service Employee at GLAICA with whom she has experienced conflict. After issues were raised concerning conflict between Ms Gray and Ms Croft rosters were changed. I also find that neither Ms Desmond nor Ms Bain failed to respond to complaints raised by Ms Gray about her conflict with Ms Croft.
Allegation 13
[98] Ms Gray alleges Ms Desmond engaged in unreasonable management action on or about 30 March 2017 by informing Ms Gray that she needed a medical clearance certificate to return to work from her medical absence from 21 to 29 March 2017.
[99] Ms Gray commenced a period of stress leave on 21 March 2017. Ms Desmond was not at work at the time of Ms Gray commencing the leave. Ms Desmond gave evidence that on her return to work, she did not receive a doctor’s certificate from Ms Gray but was told she had been on stress leave. Ms Desmond says that she believed at the time that Ms Gray was claiming workers’ compensation and she requested a medical clearance certificate for Ms Gray’s return to work in accordance with GLAICA’s usual practice. 53
[100] I am satisfied that Ms Desmond’s action on or about 30 March 2017 requesting a medical clearance certificate from Ms Gray following her return to work from a period of stress leave on 21 to 29 March 2017 was reasonable management action carried out in a reasonable manner. It is reasonable and appropriate for a manager or supervisor to request a medical clearance certificate in circumstances where the manager or supervisor understands the employee has made a workers’ compensation claim and returns to work from a period of leave in which they were unfit for work. I find that Ms Desmond made the request to Ms Gray under the mistaken belief that Ms Gray had made a workers’ compensation claim in relation to her absence, which was not the case at the time. While a medical clearance certificate was not in fact required for Ms Gray to return to work, I am satisfied that Ms Desmond’s action of requesting one was reasonable in the circumstances.
Allegation 14
[101] Ms Gray contends that Ms Desmond engaged in unreasonable management action on 30 March 2017 and 3 April 2017 by requiring Ms Gray to be followed around during her shift by Mr Robert Desmond (Kitchen Hand and the husband of Ms Desmond) to appraise her performance.
[102] There is a set amount of time allocated to do particular jobs throughout a kitchen cluster shift. GLAICA undertakes time and movement motion studies, otherwise known as “minutes in motion”, where someone walks around with an employee during their shift and observes how long it takes them to do each particular job to try and identify what they may not be doing or what they may be doing slower that they could do more quickly. 54
[103] Another employee of GLAICA (i.e. other than Mr Desmond) was scheduled to perform the minutes in motion with Ms Gray on her return from stress leave, however that employee had resigned before that could occur. 55
[104] Mr Desmond had 25 years' experience as a manager for Mid North Coast Area Health before he semi-retired and came to work in the kitchen at GLAICA House and assist with the Food Authority yearly food plan. 56 Ms Desmond gave evidence, which I accept, that she selected her husband to undertake a minutes in motion study with Ms Gray because he had done them with other people and had been doing audits of the facility. Ms Desmond also gave evidence, which I accept, that Ms Gray had in the past asked Mr Desmond how to do things and which was the better way to do things instead of coming to her, so that was another reason why Ms Desmond thought Mr Desmond would be suitable to do the minutes in motion with Ms Gray.57
[105] I accept Ms Desmond’s evidence as to the reasons she genuinely believed Mr Desmond would be suitable to do the minutes in motion with Ms Gray. I am satisfied that Ms Desmond’s action on 30 March 2017 and 3 April 2017 of arranging for Mr Desmond to conduct a minutes in motion with Ms Gray was reasonable management action carried out in a reasonable manner. I also accept that it was reasonable of Ms Desmond to arrange for Ms Gray to participate in a minutes in motion on 30 March 2017 and 3 April 2017, for other employees in Ms Gray’s position have participated in the same studies and they are undertaken for the legitimate purpose of seeking to improve the timeliness and efficiency of work at GLAICA House.
Allegation 15
[106] Ms Gray contends that Ms Desmond engaged in unreasonable management action on 3 April 2017 by placing Ms Gray on a Performance Improvement Plan (First PIP).
[107] GLAICA maintains, and I accept, that as GLAICA House cares for vulnerable elderly residents with chronic conditions and comorbidities, it is essential that infection control and cleanliness is to a very high standard.
[108] I accept that in late March 2017, Ms Desmond approached Ms Bain and advised that she was concerned that Ms Gray and another employee were not fulfilling their duties to an acceptable level and that Ms Desmond had discussed her concerns with them previously. In particular, Ms Desmond was concerned that Ms Gray was not meeting the standards of cleanliness required by the Food Safety Standards in the cluster kitchens she was rostered to work. Ms Bain advised Ms Desmond that a performance improvement plan could be an acceptable way to provide Ms Gray and the other employee with a plan to improve their performance to an appropriate and acceptable level. Because Ms Desmond had never used a performance improvement plan for an employee before, Ms Bain provided Ms Desmond with a template of a performance improvement plan and explained the benefit of using one. Ms Bain concedes that at the time she did not have a formal policy on the use of performance improvement plans at GLAICA. Ms Gray accepts that two other employees at GLAICA House had been placed on performance improvement plans in 2017. 58
[109] The First PIP was dated 3 April 2017 and was for a period of 3 months with monthly review meetings and weekly feedback meetings. The document listed under the heading ‘Required Outcomes’ the following:
“1. Management of time and tasks.
2. Service of afternoon tea to all residents that require it.” 59
[110] Ms Gray further makes the contention that she was issued with the First PIP following her going on stress leave. 60 She maintains that in 11 years of employment with GLAICA she has never had problems with her work performance. Ms Gray tendered a number of reference letters from various current and former employees at GLAICA that supported Ms Gray’s work ethic and performance at GLAICA.
[111] GLAICA maintains that Ms Gray was put on the First PIP to provide her with guidance on how to improve in the areas identified under the heading ‘Required Outcomes’. Ms Gray gave evidence that she does not agree that the purpose of the document was to assist her in her job performance but rather it was a form of bullying and she was just getting “picked on” by being put on it. 61
[112] It is contended that at no time did Ms Gray receive any explanation or follow up to this First PIP which resulted in Ms Gray being confused and upset. 62 Ms Desmond concedes that the performance improvement plans were introduced by Ms Bain and she had problems introducing the First PIP because she did not understand it well enough and what she needed to do with it.63
[113] On 20 April 2017, Ms Gray made her Application to the Commission for an order to stop bullying. I accept the evidence of Ms Desmond and Ms Bain that following Ms Gray lodging her Application with the Commission the follow up meetings set out in the First PIP did not occur because they were not sure if they could continue with the First PIP under the circumstances and they believed it would only exacerbate Ms Gray’s perception of being bullied. 64 Ms Gray contends that no discussions in relation to the First PIP took place in the period 3 April 2017 to 28 April 2017, when GLAICA were informed of her Application. I accept the evidence of Ms Desmond that while the First PIP states that Ms Gray is expected “to participate in weekly feedback meetings”, because she had never used a performance improvement plan before she was of the belief that the first meeting would be on the first review date of 3 May 2017.
[114] Ms Desmond gave evidence that a number of employees, including Ms Lean, complained about Ms Gray’s poor performance and asked not to be rostered in the section following Ms Gray on 15 June 2016 and 12 April 2017. Ms Desmond says she asked those employees to put their complaint in writing but they did not. 65
[115] Ms Lean denies that she complained about Ms Gray, rather she says that she made a general complaint to Ms Desmond in May 2016 about poor work performance by some of the other employees. Ms Lean says she did not use any names. She also denies that she complained to Ms Desmond on 12 April 2017 about Ms Gray’s poor work performance. 66
[116] Ms Bain said in cross-examination that the first review on 3 May 2017 for the First PIP did not go ahead because Ms Gray had commenced these Commission proceedings and Ms Bain, Ms Desmond and Mr Quinn had spoken and decided it was best to hold off with the First PIP because they did not know if they could continue with it while these proceedings were on foot. 67
[117] I am satisfied that Ms Desmond’s action on 3 April 2017 of placing Ms Gray on the First PIP was reasonable management action carried out in a reasonable for the following reasons:
(a) While Ms Gray has sought to rely on a number of references by current and former GLAICA employees in support of her work performance, Ms Gray admits that she had issues with performing her duties in the time allocated. 68 This is also supported by the numerous complaints that she made to Ms Desmond that she could not perform her duties within the time allocated for the new cluster kitchen shifts. I accept the evidence of Ms Desmond that she had received complaints from other employees about Ms Gray’s poor performance. However, I do not accept that Ms Lean’s complaint to Ms Desmond specifically mentioned Ms Gray but was a general complaint about work not being performed by catering employees. I find that since the commencement of the new cluster kitchen shifts on 20 February 2017 Ms Gray had issues with her management of time and tasks. In the circumstances, I find that placing Ms Gray on the First PIP was reasonable management action; it was a decision based on a legitimate concern about Ms Gray’s performance and a genuine desire to assist her to improve her performance to the requisite standard;
(b) I find that Ms Desmond provided some explanation about the performance improvement plan to Ms Gray on 3 April 2017, however I accept Ms Gray’s evidence that Ms Desmond did not adequately explain the procedure of a performance improvement plan. Ms Gray’s evidence in that regard is consistent with the evidence of Ms Desmond that she had never used a performance improvement plan before and Ms Bain’s concession that GLAICA did not have a formal policy on the use of performance improvement plans at the time. However, a course of action may still be ‘reasonable action’ even if particular steps are not. I find that placing Ms Gray on the First PIP was still reasonable even though Ms Desmond should have more properly and/or fulsomely explained the performance improvement plan to Ms Gray on 3 April 2017; and
(c) It is not in dispute between the parties that following Ms Gray being placed on the First PIP there were no review meetings held between Ms Gray and Ms Desmond or any other representative of GLAICA. I accept the evidence of Ms Desmond, Ms Bain and Mr Quinn that following Ms Gray making her Application to the Commission it was agreed by GLAICA management that they would hold off with the First PIP. This was not communicated to Ms Gray. Although it would have been preferable in the circumstances for GLAICA to have clearly communicated to Ms Gray that the First PIP would be put on hold until her Application was listed before the Commission, I do not find that this makes Ms Desmond’s action unreasonable. Further, the lack of any weekly meetings between the issue of the First PIP on 3 April 2017 and the filing of Ms Gray’s Application on 20 April 2017 was not intentional; it was as a result of a lack of understanding of the performance improvement process on Ms Desmond’s part. The absence of such meetings did not give rise to any practical or substantive unfairness to Ms Gray.
Allegation 16
[118] Ms Gray contends that Ms Desmond engaged in unreasonable management action on 16 August 2017 by placing her on a second Performance Improvement Plan (Second PIP).
[119] The Second PIP was dated 16 August 2017 and was for a period of 8 weeks. The document listed under the heading ‘Required Outcomes’ the following:
“1. To undertake the cleaning of the cluster kitchens, including cupboards, drawers, benches, fridge, microwave, tables and floors etc to the expected standard for infection control and to meet the Food Authority Standards.
2. To follow the duty lists and time frames as closely as possible to complete the work during the allotted shift. This includes, but is not limited to, preparation, setting up of trays, heating milk and filing tea pots, serving meals and completing menus.
3. To refill all stock during every shift ready for the next shift.
4. To maintain appropriate interpersonal relationships with all staff. (ie no complaints from other employees)
5. To behave in a professional manner in front of residents (no overt complaints, no banging of cupboard doors)
6. To maintain resident and staff confidentiality at all times.
7. To refrain from keeping a diary/notebook at GLAICA to keep notes about other employees
8. To book external appointments in advance outside of rostered shifts
The priority tasks are:
1. Follow the duty list
2. Follow the cleaning duties
3. Make any internal appointments (outside of the review dates) with Chris Desmond or Jo Bain to enable a note taker to be present at all times
4. Not to discuss issues/concerns with Chris Desmond or Jo Bain without a third person being present
5. Book external appointments in advance to enable you to attend shifts
If you have any concerns, discuss with the Catering Coordinator/Manager Resident Care in the presence of a third person”
[120] Ms Gray contends that she was placed on the Second PIP, which had thirteen points under the ‘Required Outcomes’ instead of the two points in the First PIP, because she made her Application to the Commission. 69
[121] Ms Desmond gave evidence that Ms Gray was the only employee put on a second Performance Improvement Plan because she was the only person who Ms Desmond found had problems with the work flow.
[122] Ms Bain gave evidence that the Second PIP had thirteen points, eight required outcomes and five priority tasks, because Ms Bain was of the view that Ms Desmond had not explained the First PIP properly to Ms Gray, so she thought it was better to have a detailed description of what GLAICA wanted and expected from Ms Gray. The objective, according to Ms Bain, was for Ms Desmond to provide support and education and try to get Ms Gray to work to the expected standard. 70
[123] Ms Gray’s primary issue with the Second PIP is that during her 11 years working at GLAICA she has never had problems with her work performance. 71 GLAICA contends that even though Ms Gray has been employed by GLAICA for a significant period of time, that does not mean she always does all of her work to the standard expected.72 In cross-examination, Ms Gray accepted that if an employee’s performance slips after 10 years it is appropriate for an employer to raise issues, however, she contended that she also thought it was appropriate for the employer to give the employee education on what they are doing wrong.73
[124] Ms Gray was requested by letter dated 14 August 2017 to attend a meeting on 16 August 2017 to discuss her performance and the introduction of the Second PIP. 74
[125] On 31 August 2017, Ms Gray attended the first review meeting regarding the Second PIP. In the meeting the notes record the following matters being discussed:
“Manager/Supervisor Comments
Written explanation of concerns given to Carol and discussed.
Written explanation of expectations discussed
Chris to meet with Carol on September 4, 5 & 7at 1430 in a random cluster chosen by
Chris to review that Carol's cleaning and restocking has been attended to an acceptable
standard. Carol able to have a support person.
Carol, Chris & Jo to meet on Tuesday September 5. Carol able to bring a support person Jo to arrange minute taker at each meeting.
Employee Self-assessment
Carol expressed her satisfaction with the discussion.
Carol would like to change shift times 0715 – 1415
Discussion about the keys” 75
[126] On 7 September 2017, Ms Gray attended the second review meeting regarding the Second PIP. In the meeting the notes record the following matters being discussed:
“Manager/Supervisor Comments
05/09 – cancelled by carol due to family emergency
07/09 – cleaning done properly, ? doing completed well done
Chris to request steel brushes from Frank to assist cleaning dishwasher hinges
Employee Self-assessment
Meetings are OK. Chris aware of which staff do and don’t assist
Carol can’t list/slide the dishwasher rack (weights less than 15 kgs)
Weighted 13.5kgs” 76
[127] On 14 September 2017, Ms Gray attended the third review meeting regarding the Second PIP. In the meeting the notes record the following matters being discussed:
“Manager/Supervisor Comments
13/09/17 – Carol off sick unable to attend meeting 12/9
Reviewed AS and AN kitchens. As clean but AN dishwashed had not been wiped on the outside and the plate in the microwave was dirty, with a dried stain. No restocking signed for in AS since Carol started on Monday
X3 ? today. Need to check with all staff about starting ?
Employee Self-assessment
Bristle brush not good, will get bristle brush of toothbrush size.
Starting @ 720 prefers”
[128] On 19 September 2017 Ms Gray attended the fourth review meeting regarding the Second PIP. In the meeting the notes record the following matters being discussed:
“Manager/Supervisor Comments
19/9 Carol did not attend meeting. Signed out of facility @ 1430
21/9 GW – all clean AS – food particles (dried) in microwave vents; AN – bench left too wet and not dried. AN kitchen floor left wet and staff slipped on floor. Need to make sure floor is dry
Employee Self-assessment
Don’t think I should be on work performance.
Concerned that other staff not being checked for their work.
Staff starting early finger print scanned @ different times. Can’t move the tray (dishwasher) weighed @ 6 kg kept full. Would prefer to move single objects.”
[129] On 26 September 2017 Ms Gray attended the fifth review meeting regarding the Second PIP. In the meeting the notes record the following matters being discussed:
“Manager/Supervisor Comments
An audit on the cleaning was done yesterday 25/9/17 with all and looking good. Its great to see that Carol is managing to get all her duties done.
Employee Self-assessment
No comments today.”
[130] I am satisfied that Ms Desmond’s action on 16 August 2017 of placing Ms Gray on the Second PIP was reasonable management action carried out in a reasonable for the following reasons:
(a) I am satisfied and find that Mr Desmond’s concerns about Ms Gray’s performance were not motivated by an intention to bully her but were in response to the issues Ms Gray was having with performing her duties in the time allocated;
(b) I accept the evidence of Ms Bain that the Second PIP was more detailed than the First PIP because she was of the view that Ms Desmond had not adequately explained and used the First PIP because she was unfamiliar with the process. I find that the Second PIP was more detailed so as to make it clearer to Ms Gray what part of her performance was being sought to be improved and what the responsibilities of each party were in the process. The fact that weekly meetings were conducted with Ms Gray to provide feedback on Ms Gray’s performance further support the reasonableness of the action and demonstrate that GLAICA had engaged in a detailed and lengthy process in a genuine attempt to assist Ms Gray improve her performance; and
(c) I do not accept that an employee such as Ms Gray should not be subjected to performance improvement management merely because she has not had any issues raised with her performance in the last 11 years. There is nothing particularly unusual about an employee who has not had any performance issues raised with them for a long period of their employment to have performance issues in the future. This is made more likely in circumstances where there is a change to the way in which their work is to be performed, such as is the case here.
Allegation 22
[131] I will deal with Allegation 22 now because it also relates to the Second PIP. Ms Gray contends that Ms Desmond engaged in unreasonable management action on 16 August 2017 by instructing Ms Gray in the Second PIP to refrain from keeping a diary notebook at GLAICA to keep notes about other employees. This instruction was recorded as point 7 under the ‘Required Outcomes’ in the Second PIP “To refrain from keeping a diary/notebook at GLAICA to keep notes about other employees.”
[132] It is not in dispute between the parties that during the meeting on 16 August 2017 this required outcome was explained to Ms Gray as follows:
“S.Mayhew: In relation to complaints Carol, you aren't to complain to other staff and vice versa if a staff member complains to you, tell them to go away. In relation to the diary please don't keep a diary, you are not to have one.
C. Gray: Stop right there, I was told I was allowed to keep a diary many years ago by D.Swann. Also about 20 staff have them so I should be able to as well.
S.Mayhew: Yes when I'm on the floor I have one to write down things so I don't forget but why do you have one Carol? What jobs do you need to remind yourself about? Why do you have a notepad?
C. Gray: There are respite residents that come in and I use the notepad to write down what they want to have for dinner on their first night.
S.Mayhew: Chris can we do the respite meals some other way?
C. Desmond: We have the menus just write their name and meal on that.
C. Gray: Well it was at the end of my shift.
S.Mayhew: Ok, well please just refrain from using a diary.
C. Gray: Well I can write whatever I want at home. No one can stop me.
S.Mayhew: That's correct, do what you like in your own time…” 77
[133] Ms Gray gave evidence, which I accept, that a poster was put up in the lunchroom entitled “Stop bullying: it’s in your hands”. The poster says inter alia that “If you think you are being bullied, what can you do? … Make a record: Keep a diary of details, including events, witnesses and any emails or correspondence”. 78 Ms Gray says that instructing her in the Second PIP to refrain from keeping a diary notebook at GLAICA was contrary to the bullying poster put up by GLAICA and was unreasonable.
[134] The outcome as described in the Second PIP required Ms Gray to “refrain from keeping a diary/notebook at GLAICA to keep notes about other employees” [emphasis added]. I find that the Second PIP did not instruct Ms Gray to not keep a diary at all to record details of events she considered to be bullying. In the meeting on 16 August 2017, Ms Mayhew advised Ms Gray, “…In relation to the diary please don't keep a diary, you are not to have one.” However, this statement needs to be considered in context. Later in the meeting Ms Mayhew told Ms Gray that she could record anything she liked in her diary at home or in her own time. This was consistent with the Second PIP prohibiting Ms Gray from keeping “a diary/notebook at GLAICA”. The purpose behind the direction was to keep Ms Gray focused on the tasks required of her and to enhance the prospect of Ms Gray undertaking the tasks required of her within the required timeframes, not to prevent Ms Gray from making notes about important events or conversations. Ms Gray remained free to make whatever notes she wanted to make in her work breaks or outside work hours. For those reasons, I find that point 7 under the ‘Required Outcomes’ in the Second PIP was reasonable management action carried out in a reasonable manner and did not constitute bullying.
Allegation 17
[135] Ms Gray contends that Ms Desmond engaged in unreasonable management action in 2017 by requiring Ms Gray to participate on five occasions in time and movement motion studies, whereas other employees only had to participate in time and movement motion studies on one occasion.
[136] It is correct that Ms Gray did participate in time and movement motion studies on five occasions at various times with Ms McBride, Ms Desmond, and Mr Desmond. 79 It is not in dispute between the parties that all other catering employees had to participate in time and movement motion studies once.80
[137] Ms Desmond gave evidence, which I accept, that Ms Gray was required to participate more than once in these studies because Ms Gray was telling Ms Desmond that she could not get her job done and by participating in the studies Ms Desmond believed Ms Gray could be shown how to get her job done in the allocated time. 81 I therefore accept that there was a reasonable basis for Ms Desmond’s decision to require Ms Gray to participate on five occasions in time and movement motion studies. It follows that I reject Ms Desmond engaged in bullying conduct, as alleged in Allegation 17.
Allegation 18
[138] Ms Gray contends that Ms Bain engaged in bullying behaviour on 9 March 2017 during a meeting by responding to Ms Gray’s request to rotate clusters in a raised voice, “it doesn’t matter what you say, it’s not going to happen” and telling her, “you’ll have to move faster”.
[139] As set out in paragraphs [80] to [81] above, the meeting on 9 March 2017 was held because there were a number of concerns amongst the employees about the changes made to the catering employees’ cluster kitchen shifts. 82
[140] Ms Lean gave evidence that during the meeting on 9 March 2017 Ms Bain not only spoke loudly she also used a very authoritative tone and used her hands in a very dictatorial manner. She says that Ms Bain was very dismissive of what employees were trying to say and employees were not given the opportunity to have any input into the meeting. 83 Ms Lean says that Ms Gray asked at one point during the meeting if the employees could rotate cluster kitchen shifts to be fair to all but was told by Ms Bain that “it didn't matter what she said, it was not going to happen”. Ms Lean contends that when speaking to Ms Gray, Ms Bain raised her voice and used her hands to take control of the conversation.
[141] Ms Gray accepted in cross-examination that during the meeting people were talking over one another and Ms Bain raised her voice to ask people to not talk over one another so that people could be heard, however she maintains that Ms Bain raised her voice and used her hand movements in an intimidating way more than one time. Ms Gray acknowledged that when Ms Bain raised her voice it was directed to all catering employees in the meeting, not just herself. Ms Gray maintains that what was a form of bullying conduct was Ms Bain telling her “That’s not going to happen” with aggressive hand movements and also that Ms Bain told Ms Gray “Well, you’ll have to move faster” in response to her question to Ms Desmond “So, you know, if we don't get time to do these duties what happens?” 84
[142] Ms Bain accepts that she said “That’s not going to happen” in response to Ms Gray’s request to do some shifts in the Tasman cluster (CL1). 85 Ms Bain also accepts that she said “Some of you will have to move faster” in response to someone saying that they could not get their work done in time. She maintains she said it to everyone and it was not just said to Ms Gray.86 Ms Bain agrees that the meeting was heated at times as the employees wished to express their views, often at the one time. Ms Bain accepts that she told everyone at the meeting in a raised voice to stop speaking over each other and to let everyone have a chance to speak and that only one person should speak at a time. Ms Bain says she did this because a lot of the employees were agitated about the changes and three or four people were talking at the same time while Ms Desmond was trying to explain things. She also accepts that she may have moved her hands in a stop motion to get people to stop talking over each other, but she does not specially recall doing so.87 She otherwise does not recall raising her voice at any other time during the meeting and says that she does not tend to raise her voice in meetings.88
[143] I find, on the balance of probabilities, that during the meeting on 9 March 2017 Ms Bain spoke in a raised voice to all employees for the purpose of asking everyone to stop talking over one another. I find that Ms Bain moved her hands in a stop motion during this exchange. I am satisfied that Ms Bain’s use of her hands was not intended to be, and was not, aggressive or intimidating. Having had the benefit of observing Ms Bain while she gave evidence, it is clear that Ms Bain generally uses her hands when she speaks. Ms Bain clarified in oral evidence that it is a habit she has developed over many years because her ex-husband of 20 years was deaf and her whole family uses sign language. I find that during the meeting Ms Gray asked whether the employees could rotate cluster kitchens and Ms Bain responded by saying “That’s not going to happen”. I also find that an employee raised concerns during the meeting that they could not get their work done in the rostered time and Ms Bain responded by saying “Some of you will have to move faster”.
[144] On the basis of my findings that Ms Bain did not raise her voice directly at Ms Gray during the meeting, raised her voice in an effort to stop employees talking over the top of one another, and did not use her hands in an aggressive or intimidating way, I am satisfied that Ms Bain did not engage in bullying conduct as alleged during the meeting on 9 March 2017. I can appreciate that it might have been disappointing for employees, such as Ms Gray, to have felt as though what they had to say was not being accepted by management during the meeting. Similarly, I can appreciate it would have been challenging for management to have employees during the meetings not accepting decisions that had been made about how work was to be performed and allocated at GLAICA House differently from 20 February 2017.
[145] I am satisfied that the responses given by Ms Bain during the meeting that rotating cluster kitchens “… was not going to happen” and “Some of you will have to move faster” was, objectively viewed, reasonable management action carried out in a reasonable manner for the following reasons:
(a) Ms Desmond gave evidence, which I accept, that when rostering employees to work in cluster kitchens she tries to keep people rostered in the same area, so that they get to know the residents, build relationships with the residents, get to know their likes and dislikes. Given that it is preferred that employees are rostered to work in a particular cluster kitchen for those reasons, I find it reasonable that a request by an employee to rotate cluster kitchens would be refused by management; and
(b) Ms Desmond gave evidence, which I accept, that prior to the meeting on 9 March 2017 she had followed employees around on eight shifts to see how they did their jobs and whether the tasks could be completed within the timeframes of the new cluster kitchen shifts. Following this Ms Desmond made the decision that two cluster kitchen shifts would be given an extra 30 minutes to perform their duties. It is clear that Ms Desmond had undertaken a review of the cluster kitchen shifts and had formed the view that employees who were working the other two cluster kitchen shifts that were not given an extra 30 minutes had enough time to perform their duties. Therefore, I find it reasonable for Ms Bain to tell employees who still had concerns that “Some of you will have to move faster.”
Allegation 19
[146] Ms Gray contends that Ms Bain engaged in bullying behaviour on 20 March 2017 by approaching Ms Gray from behind in an agitated state and saying in a raised voice that Ms Gray was not complying with the duty list.
[147] Ms Gray says that she responded to Ms Bain by saying “Jo, I'm sorry but I can't follow this duty list because I cannot get this hot box back to the kitchen by 12.30.”
[148] Ms Bain denies that she waved or threw the duty list in Ms Gray's face or that she spoke to Ms Gray in a raised voice or in an agitated manner. 89 Ms Bain says that she gave a copy of the duty list to two employees, including Ms Gray, because a number of care employees had approached management saying that certain catering staff had said they did not have to do a certain duty any more. Ms Bain says she approached Ms Gray, handed her the duty list and said “I just want you to follow this duty list" and then she kept walking.90 Ms Bain does not recall Ms Gray saying “Jo, I'm sorry but I can't follow this duty list because I cannot get this hot box back to the kitchen by 12.30.” She accepted in oral evidence that she may have been frustrated during the exchange because she had to go back to Ms Gray and show her the duty list.91
[149] Ms McBride gave evidence that on 20 March 2017 the senior registered nurse on duty had approached her on her arrival at work to say that kitchen hands had been telling the nurses that their duties had changed and the nurses had to do more. The senior registered nurse was concerned because this had caused disruption to residents’ meals. Ms McBride then went to speak to Ms Desmond about the matter, however as Ms Desmond was on leave that day she approached Ms Bain and asked her to speak to the kitchen hands and clarify the duty list that was still in place. Shortly later, Ms McBride was walking from her office to the clinical office and used the centre stairwell. When she reached the top of the stairs she proceeded to walk forward up the hallway six to eight paces and then she saw an interaction going on between Ms Gray and Ms Bain up the hallway near a kitchen bench. She saw that Ms Bain was leaning against the kitchen bench with a piece of paper in her hand and Ms Gray was standing on the other side of the kitchen bench near the fridge. She believed that the interaction likely involved Ms Bain clarifying the duties list with Ms Gray as she had discussed that with Ms Bain earlier that same day. Ms McBride says she stopped for about 20 seconds and observed Ms Bain and Ms Gray having a conversation. She did not hear any of the words spoken during the conversation, however she says that she did not hear any yelling or see any aggressive mannerisms or actions, such as Ms Bain waving her hands at Ms Gray. She then turned around and walked up the hallway the other way because she did not want to interrupt the conversation. Ms McBride’s recollection is consistent with a statement of events that she made on 22 May 2017. 92
[150] I found Ms McBride to be a witness of credit; she gave clear and consistent evidence and had a good recollection of the events. I prefer the evidence of Ms Bain and Ms McBride over Ms Gray’s evidence in relation to this issue. On that basis, I find, on the balance of probabilities, that on 20 March 2017 Ms Bain approached Ms Gray and told her “I just want you to follow this duty list” and gave her a copy of the duty list. I accept that Ms Bain was frustrated during the conversation, however I am satisfied on the balance of probabilities that Ms Bain did not yell at Ms Gray, wave her hands in Ms Gray’s face or throw the duty list at her. I find that because the conversation was short and Ms McBride had observed about 20 seconds of it, if Ms Bain had been yelling at Ms Gray or acting aggressively towards her Ms McBride would have observed this. I am satisfied that Ms Bain’s request for Ms Gray to follow the duty list was reasonable management action carried out in a reasonable manner. While I accept that Ms Gray may have felt some anxiety or apprehension at being approached by Ms Bain about the matter, it is reasonable and appropriate for a manager such as Ms Bain to direct and control the way work is carried out, provided it is done in a reasonable manner. In all the circumstances, I am satisfied that Ms Bain undertook reasonable management action in a reasonable manner and did not engage in bullying conduct, as alleged in Allegation 19.
Allegation 20
[151] Ms Gray contends that Ms Bain engaged in unreasonable management action on 6 October 2017 by approaching Ms Gray and demanding she attend a meeting that afternoon. Ms Gray gave evidence that no meeting was scheduled for 6 October 2017 and she was unprepared to attend one.
[152] A review meeting was scheduled in relation to the Second PIP for 3 October 2017. Ms Gray was at work on that day as was Ms Lean, who was going to attend the meeting as Ms Gray’s support person. Ms Desmond spoke to Ms Gray at around 2:00pm on 3 October 2017 and told her that the meeting would have to be cancelled because she had an appointment to have her tax done. Ms Gray advised Ms Lean that the meeting was not going ahead. 93
[153] There is a dispute between the parties regarding whether the meeting scheduled for 3 October 2017 was rescheduled to occur on 5 October 2017. Ms Gray says that when Ms Desmond cancelled the meeting it was not rescheduled. 94 Ms Bain gave evidence that she requested Ms Desmond to notify Ms Gray that the meeting would be rescheduled to 2:30pm on 5 October 2017 because Ms Gray was not scheduled to work on 4 October 2017.95 In cross-examination, Ms Desmond gave the following evidence regarding whether the meeting was rescheduled to 5 October 2017:
“Chris on 3 October around 2 o'clock, you told me that you had to go do your taxes, there wouldn't be a meeting. Did you reschedule a meeting with me at that point? --- I said we'll have to do another meeting.
Yes, but you did not say - - -? --- Well, I actually said Thursday and then I went to the doctors the day after that and I didn't come back to work after that.” 96
[154] On 5 October 2017, Ms Gray did not attend a meeting with Ms Bain at 2:30pm and in fact, according to GLAICA’s records, left work 10 minutes early that day. 97 On 6 October 2017 Ms Bain passed Ms Gray in the hallway and said to her as she passed her, “We'll have the meeting today that we should have had yesterday”, and then as she kept walking a few steps said, “And how come you left work early yesterday?” Ms Gray answered “I did sign out early but then I had to do something else, but I'm too sick today to think and I can't remember what I did, but I didn't leave early.” Ms Bain says she then kept on walking. Ms Bain regrets speaking to Ms Gray in the hallway because the Second PIP states that Ms Bain and Ms Gray will only talk with a support person and note taker present. Ms Bain denies that there was a heated discussion with Ms Gray and says that her interaction with Ms Gray on 6 October 2017 took approximately 15-20 seconds.98
[155] Following her interaction with Ms Bain on 6 October 2017, Ms Gray went and spoke immediately to Ms Fairbank, her Team Leader at GLAICA House, in the staff room and said in an agitated and distressed state “That bitch has done it again.” Ms Gray kept repeating herself and Ms Fairbank told her to calm down. Ms Fairbank asked her who she was talking about and Ms Gray responded “Jo”. Ms Gray explained that Ms Bain had approached her in the hallway and yelled at her as to why she had not attended a work performance meeting and that she was expected to attend one that day in her office. 99
[156] Ms Gray then approached Ms Lean and told her that she had just had a conversation with Ms Bain about attending a meeting that afternoon of which she was not aware. During the conversation with Ms Lean, Ms Gray said words to the effect: “She won't leave me alone, she's fucking with my head, I have to see a doctor, I need help!” Ms Lean gave evidence, which I accept, that during the conversation Ms Gray was visibly upset; she was shaking, her voice was quivering and she was having trouble breathing. 100 Ms Gray then left GLAICA at approximately 10:30am to go to see her doctor and she was issued with a WorkCover certificate.101
[157] I find on the balance of probabilities that Ms Desmond told Ms Gray that the meeting on 3 October 2017 was to be rescheduled to Thursday (5 October 2017), but the meeting did not take place on that day and Ms Gray was not told that the meeting would take place on the following day (6 October 2017). Accordingly, I accept that Ms Gray was not aware on 6 October 2017 when Ms Bain approached her that Ms Bain wanted to meet with her later that day.
[158] I am satisfied that Ms Bain’s action was reasonable management action carried out in a reasonable manner for the following reasons:
(a) A meeting was scheduled between Ms Gray, Ms Desmond and Ms Bain for 3 October 2017. This date was set out in the Second PIP as a review date. Prior to the 3 October 2017 review meeting, Ms Gray had attended five other review meetings that were generally held once a week. Accordingly, Ms Gray had sufficient notice that a meeting was to be held in early-October 2017 and while the meeting on 3 October 2017 did not take place it is reasonable that Ms Gray would have expected it to be held as soon as reasonably possible after 3 October 2017; and
(b) While it would have been preferable for Ms Gray to have been given more notice of the meeting than a few hours to ensure that her support person was also able to attend and so she could prepare, the test is not whether the management action could be ‘more reasonable’ or ‘more acceptable’. It was reasonable in the circumstances for Ms Bain to tell Ms Gray on 6 October 2017 that “we'll have the meeting today that we should have had yesterday”. I accept Ms Bain’s evidence that her discussion with Ms Gray in the hallway on 6 October 2017 was not heated and Ms Bain did not yell at Ms Gray.
Allegation 21
[159] Ms Gray contends that she is employed and paid as a Grade 1 kitchen hand while other kitchen hands at GLAICA with less experience than Ms Gray are paid as a Grade 2. She says that since the commencement of her employment with GLAICA in 2006 she has remained on Grade 1 even though the work that she does requires more experience than what would be expected of a Grade 1 employee. 102
[160] First, in relation to Ms Gray’s claim that she is incorrectly classified as a Grade 1 employee, Ms Gray made a complaint to the FWO on 10 May 2012 which raised this issue. On 27 July 2012, the FWO found that the complaint could not be sustained because, based on the information provided, it appeared to the FWO that GLAICA was “meeting its obligations under the Act and relevant industrial instruments in relation to the matters in dispute”. 103 At no time since 27 July 2012 has Ms Gray challenged the determination made by the FWO in a court or tribunal, apart from her re-agitation of the classification matter in these proceedings. In her oral evidence, Ms Gray conceded that she understood the outcome of her complaint to the FWO was that she was performing Grade 1 work and that was the correct classification for her position.104
[161] Secondly, in relation to Ms Gray’s claim that other kitchen hands at GLAICA with less experience than Ms Gray are paid as a Grade 2, I accept Ms Desmond’s evidence that other employees in the same role as Ms Gray are paid at the same rate and classified at the same grade as Ms Gray.. 105
[162] In view of (a) the FWO’s finding in relation to Ms Gray’s classification complaint, (b) Ms Gray’s acceptance that she is being classified and paid by GLAICA at the correct classification grade, (c) the evidence adduced in these proceedings not substantiating a claim that Ms Gray is being classified or paid at the wrong classification rate, and (d) other employees doing materially the same work as Ms Gray being classified and paid at the same rate as her, I find that Ms Gray is not being, and has not been, bullied by being classified and paid as a Grade 1 employee.
Conclusion
[163] For the reasons set out above, I find that Ms Gray has not, as alleged by her, been bullied within the meaning of s.789FD of the Act. I therefore do not have the power to make any of the orders sought by Ms Gray. The Application is dismissed.
COMMISSIONER
Appearances:
Ms C Gray on her own behalf.
Ms K Lopes, solicitor of Colin Biggers & Paisley, on behalf of GLAICA House.
Hearing details:
2017.
Newcastle:
November 23-24.
1 Exhibit A13
2 GC[2014] FWC 6988 (GC) at [47]
3 Mac v Bank of Queensland Limited[2015] FWC 774 (Mac v BOQ) at [90]
4 Ibid at [91]
5 Re SB (2014) 244 IR 127; [2014] FWC 2104 (Re SB) at [41]
6 GC at [45]
7 Ibid; Mac v BOQ at [88]-[89]
8 Explanatory Memorandum to the Fair Work Amendment Bill 2013
9 Purcell v St Aloysius College at [22]
10 Re SB at [49]
11 Re SB at [51]
12 Transcript at PN1263-1279
13 Transcript at PN1188-1189 and 1313-1316
14 Exhibit R1 at Attachment A
15 Transcript at PN727 and 844-847
16 Transcript at PN363-364
17 Exhibit A5 at Attachment A
18 Transcript at PN184-186
19 Exhibit A5
20 Transcript at PN848-849
21 Transcript at PN735
22 Exhibit A5
23 Exhibit R1 at [5]-[7]
24 Exhibit R1 at [8]-[9]
25 Transcript at PN393-395
26 Exhibit A5 at [25]
27 Transcript at PN856
28 Transcript at PN927-930
29 Exhibit A5
30 Transcript at PN731-732
31 Exhibit R2 at [9]; Transcript at PN736-737
32 Transcript at PN857-858
33 Transcript at PN859-860
34 Transcript at PN861
35 Transcript at PN708
36 Exhibit A3 at [27]; Transcript PN708
37 Exhibit R1 at [12]-[16]
38 Exhibit R4 at [9]
39 Exhibit R4 at 10
40 Transcript at PN436 & 462
41 Transcript at PN440, 456 & 460
42 Exhibit A5
43 Exhibit R3 at [5]-[9]
44 Exhibit A5
45 Exhibit A2 at [2]
46 Transcript at PN866
47 Exhibit R1 at Attachment E
48 Exhibit A2 at [6]
49 Transcript at PN140-145
50 Transcript at PN867
51 Transcript at PN868-869
52 Exhibit R1 at [37]-[38]
53 Form F74 Response by Ms Desmond dated 17 May 2017
54 Transcript at PN780-782
55 Exhibit R4 at [12]
56 Transcript at PN794
57 Transcript at PN795
58 Transcript at PN429-430
59 Exhibit A5
60 Exhibit A5 at [25]
61 Transcript at PN428-429
62 Exhibit A2 at [3]
63 Transcript at PN892
64 Exhibit R1 at [27]-[36]; Transcript at PN637-638
65 Transcript at PN746
66 Exhibit A3 at [8]-[12]
67 Transcript at PN637
68 Transcript at PN474-477
69 Transcript at PN763
70 Transcript at PN648
71 Transcript at PN473
72 Exhibit R2 at [27]
73 Transcript at PN481
74 Exhibit R1 at Attachment K
75 Exhibit R1 at [44]
76 Exhibit R1 at [44]
77 Exhibit R1 at Attachment K
78 Exhibit A12
79 Exhibit A2 at [6]
80 Transcript at PN784
81 Transcript at PN785
82 Transcript at PN575
83 Exhibit A3 at [18]
84 Transcript at PN463-465
85 Transcript at PN587
86 Transcript at PN588-589
87 Exhibit R1 at [17]-[21]
88 Transcript at PN577 and 590
89 Exhibit R1 at [22]-[24]
90 Transcript at PN582
91 Transcript at PN593
92 Exhibit R1 at Attachment F; Transcript at PN1015-1039
93 Exhibit A3 at [29]
94 Transcript at PN159-163
95 Transcript at PN659
96 Transcript at PN777-778
97 Transcript at PN659-670
98 Exhibit R1 at [49]-[63]
99 Exhibit A15
100 Exhibit A2 at [7]; Transcript at PN156-157
101 Exhibit A5 at [26]
102 Exhibit A5 at [17]-[18]
103 Exhibit R4 at attachment A
104 Transcript at PN380-391
105 Exhibit R2 at [14]-[15] and annexure A
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