Charmaine Hoad

[2019] FWC 7739

[2019] FWC 7739

FAIR WORK COMMISSION

DECISION

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

Charmaine Hoad
(AB2018/537)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 13 NOVEMBER 2019

Application for an FWC order to stop bullying – application to reopen – unresolved matrimonial dispute – no material changed circumstances – no significant practical necessity – application dismissed

[1] On 29 March 2019 the Fair Work Commission (the Commission) made a Decision 1 (the Decision) and issued Directions2 (the Directions) concerning an anti-bullying application3 by Charmaine Joy Hoad (Mrs Hoad or the Applicant). The person named in the application was (William) Mark Hoad (Mr Hoad).

[2] Arising from the Decision, I directed “that the anti-bullying application not be listed for further hearing except as provided for in this Direction” 4.

[3] On 26 August 2019 Mrs Hoad, by email to the Commission, made a request for her anti-bullying application to be reopened. She claims to do so consistent with the Direction.

[4] Given the self-represented nature of the parties and the case history, I have accepted Mrs Hoad’s email request as an application for reopening notwithstanding it not having been made in the form prescribed by the FW Act and associated Rules.

[5] On 25 September 2019 Mr Hoad, by email to the Commission, opposed the request to reopen.

[6] On 21 October 2019 I conducted a hearing on the reopening application. In advance of the hearing, I issued directions 5 for the filing of statements and materials. Both Mrs Hoad and Mr Hoad did so. I received oral and written evidence from both Mrs Hoad and Mr Hoad.

[7] I reserved my decision on the reopening application, which I now deliver.

[8] It should be noted that this decision does not concern Mrs Hoad’s reopening application dated 30 September 2019 in a separate but related matter Re Taylor AB2018/558. That reopening application is listed for hearing before me on 11 December 2019.

The anti-bullying application

[9] Mrs Hoad’s anti-bullying application has certain unique features. It concerns husband and wife co-directors of a company in whose workplace the husband and wife are both working. It concerns a matrimonial dispute between husband and wife that has led to their estrangement and (since the Decision) a divorce. It concerns proceedings before the Federal Circuit Court (and now the Family Court) concerning a dispute over the distribution of matrimonial assets, including business assets.

The Decision

[10] Mr Hoad sought dismissal of the anti-bullying application on jurisdictional grounds. The Decision determined two of three jurisdictional issues. The third jurisdictional issue remains live but, in light of the Decision, has not been determined.

[11] The jurisdictional issues dealt with by the Decision were: (1) whether a binding settlement agreement had been reached between the parties such that there was no further risk of bullying; and (2) whether a term of the alleged settlement agreement was that the anti-bullying proceedings be discontinued.

[12] The Decision found 6 that a binding settlement agreement had been reached between Mrs Hoad and Mr Hoad which included an agreement to discontinue these proceedings.

[13] I concluded that there was no utility in further proceedings and that, in the absence of further proceedings, the application had no reasonable prospects of success:

“[116] My finding that a binding settlement agreement was made which included an agreement that these proceedings would be discontinued is a sufficient basis to conclude that Mrs Hoad’s application should be dismissed in the exercise of both the general discretionary power in section 587 of the FW Act and by reference to the specific provisions of section 587(1)(c).

[117] It is true that the settlement of this matter has been agreed through the indirect route of a settlement of matrimonial property and business assets. However, the effect of that settlement on these proceedings is direct. There is no utility in proceeding with Mrs Hoad’s bullying application given that the settlement agreement will have the effect of Mrs Hoad ceasing to work in the business of Hoad Water Cartage.

[118] Further, hearing an application which has been the subject of an agreement to discontinue would not be consistent with the objects of the FW Act. In the absence of a hearing, there are no reasonable prospects of an application being successful. In the circumstances of this matter, I do not consider that this conclusion is disturbed by the lack of clarity over when a notice of discontinuance was to be filed. Whether it was agreed to be filed immediately (that is, upon the signing of the Heads of Agreement) or upon the interim arrangements in clause 17 taking effect or upon the sealing of Consent Orders by the Court, there was an agreement nonetheless not to proceed with this application because the parties had agreed to go their own way.”

[14] However, as to the disposition of the matter I declined to dismiss the application at that time for the following reason:

“[119] However, I have one reservation in dismissing the application on the basis of the general power in section 587 or the specific circumstance provided for in section 587(1)(c). The settlement agreement is conditional on its implementation. This requires the sealing of Consent Orders by the Court. If for some reason the Court does not seal orders based upon the Heads of Agreement, the Court may determine the matrimonial dispute by making alternate orders, either via different consent orders or by conducting a trial (which is scheduled).

[120] Should for some reason the Court not give effect to the settlement agreement or not otherwise dispose of the matrimonial dispute in a manner that separates Mrs Hoad from working alongside Mr Hoad, the basis on which Mrs Hoad agreed to discontinue the application may have materially altered.

[121] For this reason, and this reason alone, I will adjourn the application by Mrs Hoad until such time as final orders of the Court are sealed (whether by consent or otherwise) unless these proceedings have been otherwise discontinued. I will not list this matter for hearing in the interim unless material circumstances change, or by consent. Should this matter still be before the Commission at the time of the final Court Orders, I will require Mrs Hoad to notify the Commission of the Orders and will provide leave for Mr Hoad to make a fresh strike-out application if Mrs Hoad is to no longer work for Hoad Water Cartage. Mrs Hoad will have general liberty to apply should her application still be before the Commission but only if the basis on which she agreed to discontinue has materially altered.”

[15] Arising from the Decision I directed as follows: 7

“1. the anti-bullying application not be listed for further hearing except as provided for in this Direction;

2. leave be granted to the Applicant and to William Mark Hoad to apply on short but reasonable notice should it be considered necessary to vary or supplement this Direction or seek re-listing or dismissal of the anti-bullying application in light of changed circumstances, significant practical necessity, or agreement between the parties;

3. unless the anti-bullying application has been discontinued, the Applicant is to notify the Commission of the terms of the final Order of the Court within seven days of the Order being made;

4. should the final Order of the Court give effect in substance to the Heads of Agreement or otherwise have the effect that the Applicant is no longer to be employed by Hoad Water Cartage and should the anti-bullying application not be discontinued by such date, leave is granted to William Mark Hoad to make a further application within fourteen days of the final Order of the Court seeking dismissal of the anti-bullying application;

5. leave is granted to the Applicant to discontinue the anti-bullying application at any time from the date of this Direction.”

The reopening application

[16] Following the Decision, no further proceedings arose until the reopening application was made by Mrs Hoad on 26 August 2019.

[17] The ground stated by Mrs Hoad in her reopening application was expressed as follows: 8

“The FCC trial has been moved to a hearing for 9th September 2019 and to apply for a 5 days or more trial set for later 2019 or mid 2020.”

[18] Having heard Mrs Hoad’s evidence and submissions, the grounds advanced are more numerous. In summary, Mrs Hoad advances six grounds:

•  Since the Decision, the hearing in the Court to determine the distribution of matrimonial property, including business assets, has been delayed;

•  Since the Decision, Mr Hoad’s use of lawyers to seek interlocutory orders from the Court is causing Mrs Hoad stress and anxiety;

•  Since the Decision, Mr Hoad has denied Mrs Hoad access to business funds, including funds to appoint a human resource consultant;

•  Since the Decision, Mr Hoad has failed to communicate appropriately and is causing operational staff to not appropriately value Mrs Hoad’s role in the business;

•  Since the Decision, SafeWork SA has recommended that the terms of a previous Commission decision be clarified to minimise workplace misunderstanding; and

•  Since the Decision, Mr Hoad has taken inadequate steps to obtain training on workplace bullying and harassment.

[19] Mrs Hoad seeks that the Decision and Direction of 29 March 2019 be varied or supplemented with orders against Mr Hoad.

[20] Mr Hoad contests each of these grounds. He claims they are baseless. He submits that the Commission’s jurisdiction is being used as a forum to ventilate matrimonial grievances before the Court and improperly deal with matters that the Commission decided in March 2019 were the subject of a binding settlement agreement.

Consideration

[21] This decision does not determine the substantive allegations of bullying, whether allegations of past bullying or alleged bullying conduct since the Decision.

[22] This decision concerns only whether Mrs Hoad’s anti-bullying application should be reopened to enable those questions to be determined.

[23] My Decision and Directions of 29 March 2019 specified the circumstances in which Mrs Hoad or Mr Hoad would be granted permission to reopen the anti-bullying claim. Those circumstances were threefold:

• changed circumstances;

• significant practical necessity; or

• agreement between the parties.

[24] Given the reasons for Decision, I consider these criteria to continue to be appropriate measures in this case upon which to consider an application for reopening.

[25] There is no agreement between the parties.

[26] Accordingly, the grounds advanced by Mrs Hoad, either individually or collectively, need to establish changed circumstances since 29 March 2019 or significant practical necessity.

[27] I now consider each of these grounds.

Delay to Court hearing

[28] A trial to determine the property dispute between Mr and Mrs Hoad (including the business assets of Hoad Water Cartage Pty Ltd) was originally scheduled to occur before the Federal Circuit Court of Australia in August 2019.

[29] However, in the week prior to trial Mrs Hoad placed additional affidavit material before the Court relevant to the proceedings. As a consequence, agreement was reached between counsel for Mr and Mrs Hoad that the trial could not proceed on the scheduled dates given the new material and the complexity of the matter. Trial dates were vacated.

[30] On 12 August 2019 Judge Young of the Federal Circuit Court of Australia made the following Order: 9

“UPON NOTING THAT:

Counsel informed the Court that the trial was likely to take five days or more.

THE COURT ORDERS THAT:

The proceedings are transferred to the Family Court of Australia at Adelaide to be listed on a date to be fixed by that Court.”

[31] Lawyers for Mr Hoad subsequently made an application to the Family Court on 1 October 2019 seeking orders that the trial date be expedited. 10 Mrs Hoad’s evidence before me was that she intended to agree to an expedited trial. As at the date I reserved this decision, no trial date had been re-scheduled though the Family Court was hearing Mr Hoad’s interlocutory application on 4 November 2019.

[32] Both Mr and Mrs Hoad’s evidence before me was that they hoped for a trial in the Court at least in the early part of 2020.

[33] The delay in the trial was precipitated by Mrs Hoad filing late material with the Court. Whilst the trial has been delayed, this has occurred in the ordinary course of litigation before the Court, under the supervision of judicial officers of the Court and in the full knowledge and consent of the parties, including Mrs Hoad.

[34] My Decision of 26 March 2019 was premised on the basis that proceedings before the Court were live, and that the matrimonial property dispute will be either resolved between the parties via consent orders, or by determination of the Court. The precise timing of a final Court order was indeterminate at that time, and remains indeterminate.

[35] The delay in the matrimonial property proceedings is a new development but not, in context, one that warrants a reopening of Mrs Hoad’s application.

Legal action causing stress

[36] Mrs Hoad advances a related ground that the interlocutory orders sought in the Court by Mr Hoad, and the continued involvement of his solicitors, is causing her stress and anxiety. She says that Mr Hoad’s interlocutory application before the Court of 1 October 2019 is not simply seeking an expedited trial, but also orders for the release of funds from business accounts to cover his legal expenses.

[37] Prolonging the resolution of the matrimonial property dispute has the effect of Mr Hoad and Mrs Hoad continuing to work in their respective roles in the business of Hoad Water Cartage Pty Ltd, as outlined in the Decision. They work in a detached manner, but are required to interact from time to time. I accept that this continues to create a tense workplace environment and one that creates stress and anxiety.

[38] Litigation of contested matters between a former husband and wife, particularly prolonged litigation whether in the Court or in this Commission, is undoubtedly stressful to the litigants.

[39] However, both Mr Hoad and Mrs Hoad are legally represented before the Court. Mrs Hoad has contributed to the prolonging of the Court litigation with the most recent delay of the trial and her assertion that the Heads of Agreement referred to in the Decision was not a binding settlement agreement. Both Mr Hoad and Mrs Hoad have variously sought interlocutory orders of the Court during the life of the property dispute. In so doing, each have exercised their legal rights. Mr Hoad’s latest application (of 1 October 2019) is part of that continuum.

[40] The legal process before the Court is separate to these proceedings and, as noted, conducted under the supervision of appropriate judicial officers. There is nothing unique or special concerning the conduct of Mr Hoad or his lawyers or in the effect of that legal process on Mrs Hoad which cannot be brought before the relevant Court or which warrants a reopening of the anti-bullying claim.

[41] Mrs Hoad further submits that it is unreasonable for Mr Hoad to seek the advice and involvement of his lawyers on workplace or operational matters, and that this too causes stress and anxiety.

[42] In this decision I am only determining a threshold issue, not whether bullying conduct by Mr Hoad (directly or via his lawyers) has occurred or is a future risk. As a matter of principle, it is not improper for a business owner, including one in dispute with a co-owner, to seek legal advice on their rights and responsibilities. How that advice is obtained and communicated to others may be relevant to a bullying application where both co-owners continue to work in the same business.

[43] Without prima facie evidence of unreasonable action by Mr Hoad or his lawyers, stress on the part of Mrs Hoad arising from the continuing involvement of lawyers for Mr Hoad in dealings between Mr and Mrs Hoad is not a sufficient ground to reopen these proceedings.

Denial of access to business funds

[44] Mrs Hoad contends that, since the Decision, Mr Hoad has failed to approve Mrs Hoad accessing business funds for the engagement of a human resource specialist.

[45] My Decision of 26 March 2019 noted that Mrs Hoad performs the role of Director of Finance under a Consent Order of the Court made on 2 May 2018. This includes human resource functions. My decision in a related matter (an anti-bullying application by the Finance Administrative Manager and Human Resources Manager) 11 made it clear that persons working in the business in a human resource capacity report to and work under the supervision of Mrs Hoad even when they are required from time to time to liaise with Mr Hoad (as Managing Director) or act upon reasonable requests by Mr Hoad.

[46] The evidence before me is that in May 2019 Mrs Hoad sought to engage a human resource consultant (Evelyn Pollard Consulting) to assist on certain human resource and communications issues between business departments. Mr Hoad initially resisted this engagement, on the basis he believed that it should be paid by WorkCover as part of a Return to Work Plan concerning the Human Resources Manager. Subsequently, and when WorkCover declined to pay, Mr Hoad agreed to make business funds available. A Professional Services Agreement was then prepared between Hoad Water Cartage Pty Ltd and the consultant. The consultant commenced working in the business in September 2019. Both Mr Hoad and Mrs Hoad gave evidence that the initial work of the consultant has been beneficial and valued.

[47] Disagreements between business owners about the utility of engaging consultants are not uncommon in the ordinary course of business. Prima facie, those disagreements are not bullying conduct unless the disagreement is accompanied by bullying conduct that is repeated and creates a risk to health and safety.

[48] The material before me relied upon by Mrs Hoad does not appear to have that qualitative element.

[49] In any event, it would appear that the engagement of the consultant is no longer a live disagreement.

[50] In these circumstances, the dispute over the engagement of Evelyn Pollard Consulting is not a ground for reopening the anti-bullying application.

Failure to communicate or value role

[51] Mrs Hoad contends that there have been multiple occasions since my Decision of 26 March 2019 in which Mr Hoad has disrespected or devalued her role in the business, or failed to provide necessary information in a timely manner to her or persons under her supervision.

[52] The evidence before me suggests that there appear to have been a number of instances since the Decision wherein Mrs Hoad made complaints to this effect to Mr Hoad (by email). Whether those complaints are merited or constitute bullying conduct, is not a matter I have yet inquired into given that I am determining only the threshold issue of reopening.

[53] The recent examples given by Mrs Hoad of alleged exclusionary conduct mirror concerns of feeling devalued that were raised by Mrs Hoad in her substantive anti-bullying application of 31 August 2018.

[54] The nature of the allegation is not new, though it is alleged that the conduct is continuing.

[55] For reasons expressed in the Decision, I did not consider it appropriate to conduct a merits hearing of the exclusionary behaviour alleged in the originating application. I maintain that view. The new allegations are not changed circumstances nor do they constitute significant practical necessity to alter the decision I made not to hear the merits of the allegations, including the allegations of exclusionary behaviour.

SafeWork SA intervention

[56] In September 2019 Mrs Hoad notified a work health and safety complaint to SafeWork SA. Her notification raised thirteen particulars, including allegations concerning Mr Hoad and his conduct of business operations.

[57] A Senior Work Health and Safety Inspector (Mr Brennan) visited the workplace. On 26 September 2019 the Inspector issued six Improvement Notices under the Work Health and Safety Act 2012 (SA). 12

[58] By email of the same date to both Mr Hoad and Mrs Hoad, the Inspector outlined his findings and conclusions. Included in his “overview of topics discussed” the Inspector made the following observation: 13

“The interpretation of the Fair Work Commission Orders by various parties is creating conflict between departments. I recommend the PCBU seek clarity from the Fair Work Commission to reduce further conflict and confusion about the intent of the Orders.”

[59] Neither the Improvement Notices nor an accompanying Inspection Report deal directly with matters encompassed in Mrs Hoad’s bullying application. The Improvement Notices concern chemical storage, firefighting equipment, safety data sheets, electrical equipment, the OHSE Management Plan and fatigue management. Indirectly, however, there may be some overlap with issues raised by Mrs Hoad in her application to the Commission as the Improvement Notices concerning the OHSE Management Plan and fatigue management each refer to “confusion between departments”.

[60] The six SafeWork SA Improvement Notices of 26 September 2019 and the accompanying email of Inspector Brennan are a new development since my Decision of 26 March 2019.

[61] I take this into account in considering whether it is a changed circumstance or one that gives rise to significant practical necessity so as to warrant a reopening of Mrs Hoad’s anti-bullying application.

[62] I have concluded against this course for the following reasons:

Firstly, the “Fair Work Commission Orders” referred to by Inspector Brennan appear to relate to my orders of 21 March 2019 in a related but separate anti-bullying matter (Re Taylor) 14, not the application brought by Mrs Hoad. There are no orders or directions I made in dealing with Mrs Hoad’s application on 26 March 2019 which are directly or indirectly the subject of the Improvement Notices or observations by the Inspector. It would be inappropriate in proceedings on Mrs Hoad’s application (AB2018/537) to be taking evidence or submissions on, or considering variations to, orders made on the separate anti-bullying application Re Taylor (AB2018/558).

Secondly, I am not persuaded as to the utility of reopening Mrs Hoad’s application for the purpose identified by the Inspector. It is possible, but by no means certain, that a merits hearing of Mrs Hoad’s application would address the communication issues and “confusion between departments” referred to by the Inspector. Further, the evidence before me suggests that Mr Hoad and Mrs Hoad have, at least since their separation, maintained a continuing disagreement about working arrangements, their roles and responsibilities in the business and the nature of their authority and communication. For example, each has a different view on the proper application of the Consent Orders made by the Court on 2 May 2018. Given that, it is not surprising that each carries their own view of the orders I made in Re Taylor AB2018/558. There is a reasonable probability that, even with the best will in the world, any orders or revised orders made by the Commission about the respective roles, responsibilities or conduct of Mr or Mrs Hoad in the workplace would continue to be the subject of conflict and disagreement between them until such time as their matrimonial dispute is resolved.

Thirdly, in the absence of submissions and evidence in matter AB2018/558 from persons involved in that proceeding, I do not consider my decision or directions in AB2018/558 to be unclear or likely to precipitate or given rise to bullying conduct between Mr Hoad and Mr Hoad.

Fourthly, as noted in my decision of 21 March 2019 in Re Taylor, 15 the existence of Improvement Notices issued by SafeWork SA following a notification by Mrs Hoad is not a novel development. In April 2018 Mrs Hoad contacted SafeWork SA and requested intervention, leading to SafeWork SA issuing three separate Improvement Notices on 24 April 2018. Whilst the September 2019 Improvement Notices are new, the existence of intervention by SafeWork SA at the initiative of Mrs Hoad is not.

Inadequate anti-bullying training

[63] Mrs Hoad contends that Mr Hoad has failed to undertake adequate anti-bullying training since the Decision of 29 March 2019.

[64] Mr Hoad submitted that since hearings in the Commission “I have spent time, effort and money in upskilling my management skills, self-improvement and I have also received professional help. I have done in-house training courses on workplace bullying, harassment and email etiquette.” 16

[65] The evidence before me is that Mr Hoad completed an on-line ‘Workplace Discrimination, Harassment and Bullying for Managers’ course on 4 September 2019, and has enrolled in an external course to be conducted by Business SA in November 2019. 17

[66] In reply, Mrs Hoad submits that the on-line course completed by Mr Hoad was insubstantial.

[67] I made no orders or directions in this matter (or in the separate but related matter Re Taylor AB2018/558) that Mr Hoad undertake anti-bullying training.

[68] That Mrs Hoad seeks such an order or direction on her application is not new. Such a course is however predicated on a consideration of the merits of her anti-bullying application, which for reasons set out on 29 March 2019 I decided not to determine on the merits.

[69] I am in no doubt that Mrs Hoad considers the training her former husband has undertaken or plans to undertake is inadequate just as I have no doubt that Mr Hoad considers that it is adequate. The adequacy or inadequacy of a course of training that has not been the subject of Commission consideration let alone order is not a proper basis on which to reopen Mrs Hoad’s anti-bullying application.

Conclusion

[70] My decision of 29 March 2019 was to adjourn the application by Mrs Hoad until such time as final orders of the Court in the matrimonial dispute are sealed (whether by consent or otherwise). I did so on the basis that: 18

“There is no utility in proceeding with Mrs Hoad’s bullying application given that the settlement agreement will have the effect of Mrs Hoad ceasing to work in the business of Hoad Water Cartage.”

[71] In the Decision I further indicated that “I will not list this matter for hearing in the interim unless material circumstances change, or by consent.”

[72] The grounds on which Mrs Hoad’s application for reopening is made do not individually or cumulatively persuade me that material circumstances have changed to such a degree so as to set aside the reasons why I decided, with limited exceptions, not to further hear the substantive anti-bullying application in advance of the Court proceedings being concluded. The findings I made in the Decision concerning the settlement agreement remain. The processes before the Court to determine the distribution of matrimonial property remain live, despite the trial’s adjournment.

[73] I issue an order in conjunction with this decision dismissing Mrs Hoad’s application to reopen.

DEPUTY PRESIDENT

Appearances:

C. Hoad, on her own behalf

W. M. Hoad, on his own behalf

Hearing details:

2019.

Adelaide; by telephone.

21 October.

Printed by authority of the Commonwealth Government Printer

<PR714213>

 1   [2019] FWC 2034

 2   PR706280

 3 AB2018/537

 4   Directions PR706280 29 March 2019 at 1.1

 5   Directions 27 September 2019

 6   Decision at [93] and [100]

 7   Directions PR706280 29 March 2019

 8   Email Charmaine Hoad to Chambers Anderson DP 26 August 2019 3.28pm

 9   Attachment to Email Application 26 August 2019

 10 R7 and R8

 11   Re Taylor[2019] FWC 1794

 12 R2 WHM2

 13 R2 WHM2

 14   [2019] FWC 1794

 15   [2019] FWC 1794 at [42] to [44]

 16   Submission Mark Hoad 25 September 2019 paragraphs 6 to 9

 17 R3; R4

 18   [2019] FWC 2034 at [117]