Dianne Loveday

[2021] FWC 6575

[2021] FWC 6575

FAIR WORK COMMISSION

DECISION

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

Dianne Loveday
(AB2021/304)

COMMISSIONER MCKINNON MELBOURNE, 9 DECEMBER 2021

Application for an order to stop bullying – small business owner – worker in own business – alleged bullying by owner’s corporation members – bullying at work – orders made.

[1] Ms Dianne Loveday is a small business owner. She runs a family mediation service from two commercial units she owns at 539 Highett Road, Highett, Victoria. The building is managed by an owner’s corporation that has been dysfunctional for approximately four years. Ms Loveday is having trouble dealing with two other occupants of the building who also run businesses there: Mr Lester Beling and Mr Raymond Tyers. She has applied to the Commission for orders to stop bullying at work against them. At the time she applied, Ms Loveday was Chair of the owner’s corporation. She recently lost the position to Mr Beling.

[2] Mr Beling and Mr Tyers object to the application and deny that Ms Loveday has been bullied at work. Mr Tyers is also distressed by his dealings with the owner’s corporation. He says Ms Loveday is a lovely person and while he has not bullied her, he apologises for any distress she has suffered. Mr Tyers is no longer a member of the owner’s corporation and no longer has much contact with Ms Loveday. Mr Beling says the allegation of bullying is nonsense and rubbish and that he is the one who has been targeted by her. He says Ms Loveday lies and cannot be trusted. He makes no apology for his conduct toward her.

[3] The questions in this case are these:

1. Is Ms Loveday a worker in a constitutionally-covered business?

2. Has Ms Loveday been bullied at work?

3. If so, is there a risk that the bullying will continue?

4. If necessary, what orders should be made to stop the bullying?

Ms Loveday is a worker in a constitutionally-covered business

[4] The Commission can only deal with applications to stop bullying at work by workers who are at work in a constitutionally-covered business. The meaning of constitutionally-covered business is found in section 789FD(3) of the Act and includes a constitutional corporation, the Commonwealth, a Commonwealth authority, a body corporate incorporated in a Territory and a business or undertaking conducted principally in a Territory or Commonwealth place. A person who conducts a business or undertaking is a worker in that business if they carry out work in the business. 1

[5] Ms Loveday is at work in a constitutionally-covered business when she is carrying out work in the business of Bayside Resolve Pty Ltd trading as Bayside Mediation, a company she owns with her partner, Mr Michael Eagles. This is because Bayside Resolve Pty Ltd is a constitutional corporation. It trades in the provision of family dispute resolution services for a fee.

[6] Ms Loveday is not a worker when she is carrying out work in the business of the owner’s corporation, which is a body corporate but not a constitutionally-covered business. 2 The only potentially relevant category of business is that of constitutional corporation. However, the owner’s corporation was formed in Australia and is not a foreign corporation. It is also not a financial corporation - it does not borrow, lend or deal in finance.3 That leaves the possibility of the owner’s corporation being a trading corporation, which requires it to both have the capacity to trade and to undertake sufficient trading for this to be considered a substantial, and not merely peripheral activity of the corporation.4 The evidence does not establish this to be the case. The only activity of the owner’s corporation is to manage the building on behalf of its owners. It does so through a building manager contracted to carry out building management functions on its behalf. Trading activity is not a substantial activity of the corporation. I find the owner’s corporation is not a constitutional corporation.

[7] The significance of this distinction is that Ms Loveday can only have been bullied at work if the alleged bullying occurred while she was at work in her business.

Has Ms Loveday been bullied at work?

[8] A worker is bullied at work if a person or group repeatedly behaves unreasonably towards the worker (or a group of workers of which they are a member) while they are at work in a constitutionally-covered business, and the behaviour creates a risk to health and safety. 5 Bullying at work does not include reasonable management action carried out in a reasonable manner.

[9] There is no exhaustive definition of when a person is “at work” although these are words of limitation. Conduct that occurs while a person is not at work in a business covered by the legislation is not bullying at work. A worker will usually be at work when they are performing work - at any location or time of day. A worker may also be at work when they are engaged in some other activity which is authorised or permitted by their employer. 6

[10] Much of the alleged bullying in this case occurred while Ms Loveday was carrying out work in her capacity as Chair or member of the owner’s corporation. Ms Loveday used her work email address for owners’ corporation matters, and sometimes corresponded with the owner’s corporation during business hours. This was a matter of her choosing and for her convenience. It was not something done in or for the benefit of the business of Bayside Mediation. Meeting minutes for the owner’s corporation indicate that it is Ms Loveday who owns units in the building, rather than Bayside Mediation. Her participation in the owner’s corporation was (and is) a matter of interest to her personally. For these reasons, and to the extent that the application seeks orders to stop bullying while Ms Loveday was at work in the owner’s corporation, I am not satisfied that I have jurisdiction to deal with the dispute. The alleged behaviour did not occur while Ms Loveday was at work in her business. It was instead the product of disputes between owners in the building about how the building is managed and by whom. These are matters within the jurisdiction of the Victorian Civil and Administrative Tribunal and are more appropriately dealt with in that forum.

[11] However, I find jurisdiction to deal with the dispute in relation to alleged bullying that occurred when Ms Loveday and Mr Beling and/or Mr Tyers were at work in their own businesses and came into contact with each other in common areas of the building in the course of that work. It is not enough that the interaction occurred in or around the building, which is the workplace of each. To be within jurisdiction, the contact must also have occurred while Ms Loveday was at work in her business. Meetings in her office after hours, for the sole purpose of a meeting of the owner’s corporation, were not meetings that occurred while Ms Loveday was at work in her business.

The alleged bullying

[12] The alleged bullying by Mr Beling began in 2018, when Ms Loveday was negotiating with another unit owner in the building to buy Unit 4. Mr Beling approached her in the hallway and stated that he could out-bid her if he wanted to, but he wouldn't if Ms Loveday agreed to sell him one of the carparking spaces attached to Unit 4. Ms Loveday said she would sell Mr Beling the car space. She bought Unit 4 and then told him that she had decided not to sell him the car space.

[13] Ms Loveday says Mr Beling has bullied her ever since. The alleged incidents of bullying are:

1. The conversation above, where Mr Beling approached Ms Loveday and asked her to sell the carpark space to him.
2. In meetings and email exchanges between the owners’ committee, Ms Loveday’s comments are regularly disregarded and personal insults are made. Mr Beling talks over her in meetings and dismisses her statements as untrue or irrelevant. He has accused Ms Loveday of being a liar and dishonest, of not acting for everyone and having some power over owners who do not agree with Mr Beling and Mr Tyers. He copies his emails to a wider audience than necessary.
3. When Ms Loveday tried to call a meeting of the owner’s corporation in 2020, she was subjected to emails that were humiliating and replete with attacks of a personal nature. She felt ridiculed and discounted by Mr Beling.
4. Continuing ridicule and snide remarks since Mr Beling has taken over the role of Chair of the owner’s corporation. Attempts to engage in reasonable conversation with Mr Beling are shut down. He makes belittling remarks, has a dismissive attitude and in one email exchange, was very condescending. When Ms Loveday asked Mr Beling not to be condescending, he responded by sending her the definition of condescending with the comment “that's not him”. In another email exchange, Mr Beling told Ms Loveday not to give him any advice and “to leave this to him and [she] would be better off”. Ms Loveday saw this as a threat.
5. When Ms Loveday runs into Mr Beling in common areas of the building or the café downstairs, he is dismissive or tries to intimidate her. This includes letting doors close as she approaches, staring at her and mumbling under his breath.

[14] Allegations of bullying are also made in relation to Mr Tyers, and similar to those made against Mr Beling:

6. In email exchanges with the owners’ committee in Ms Loveday’s capacity as Chair, Mr Tyers would join Mr Beling in making belittling and disparaging remarks. Ms Loveday was accused of being a liar and dishonest, of not acting for everyone and having some power over owners who did not agree with the view of Ms Loveday held by Mr Beling and Mr Tyers.
7. When Ms Loveday tried to call a meeting of the owner’s corporation in 2020, she was subjected to emails that were humiliating and replete with attacks of a personal nature. She felt ridiculed and discounted by Mr Tyers.
8. Mr Tyers circulated an email to the building owners before the Annual General Meeting asserting that this application had been resolved and that Mr Tyers and Mr Beling had been vindicated. Mr Tyers claimed that Ms Loveday was not an employee and that the Commission had no jurisdiction.

[15] Allegations 1 and 5 are the only ones that deal with incidents occurring while Ms Loveday was at work in her business. Allegation 1 was an impromptu exchange about the sale of the Unit 4 carpark. Allegation 5 involves Mr Beling’s conduct toward Ms Loveday in common areas of the building. None of the allegations involving Mr Tyers relate to work that might be the subject of orders to stop bullying in this case.

Was Ms Loveday bullied at work by Mr Beling?

[16] Ms Loveday and Mr Beling have starkly different versions of the facts about their interactions in the building. In short, Mr Beling denies that any of the alleged bullying behaviour occurred. Where there is a conflict, I prefer Ms Loveday’s evidence because it is more credible and it is consistent with the tenor of correspondence between them in the conduct of owner’s corporation business. Mr Beling has a very direct manner. He is unafraid to make his feelings on a matter known. As he stated repeatedly at the hearing, he is a man of significant stature. He does not like Ms Loveday and has made this abundantly clear both to her and to others.

[17] It was not always the case that the two were in conflict. For many years, Ms Loveday and Mr Beling had a respectful and cooperative – even supportive - relationship. When Ms Loveday reneged on an agreement to sell him a carpark in 2018, Mr Beling was understandably upset. Rather than finding a way to move forward, however, Mr Beling has become increasingly and openly disrespectful toward Ms Loveday whenever the opportunity for conflict presents. Ms Loveday has contributed to the conflict at times both by her language and conduct.

[18] I am not satisfied that Mr Beling’s approach to Ms Loveday to buy a car park from her in connection with the sale of unit 4 in the building was bullying behaviour. It was a simple exchange, made at a time when Ms Loveday and Mr Beling shared a mutual respect, resulting in agreement.

[19] I am satisfied that since that time, Mr Beling’s conduct toward Ms Loveday in and around the building has repeatedly been unreasonable. The conduct has occurred while Ms Loveday was at work in her own business, including in common areas of the building and in the café downstairs. I find that Mr Beling has acted rudely toward Ms Loveday in these encounters, including on occasions by letting doors close as she approached. I find that Mr Beling has stared at Ms Loveday with the intention of intimidating her, while saying words she could not hear.

[20] Mr Beling’s behaviour toward Ms Loveday created a risk to Ms Loveday’s health and safety. The risk has materialised through its effect on Ms Loveday, who has had trouble sleeping, feels intimidated and unsettled and is scared of encountering Mr Beling when she goes to work in the building.

[21] Mr Beling is not in a position of managerial responsibility in relation to Ms Loveday. It is not relevant to consider whether his behaviour was reasonable management action.

[22] I am satisfied that Ms Loveday has been bullied at work in her business by Mr Beling. I am not satisfied that Ms Loveday has been bullied at work in her business by Mr Tyers.

Is there a risk that the bullying will continue?

[23] I am satisfied that there is a risk that the bullying will continue for so long as Ms Loveday and Mr Beling both have an interest in the building at 539 Highett Road. While restrictions related to the COVID-19 pandemic have reduced the regularity of in-person encounters, this is likely to increase as the situation stabilises and individuals return to work in their offices.

Should orders be made?

[24] The scope of the discretion to order a person to stop bullying at work is broad. I am satisfied that orders should be made in this case. The orders will not go so far as Ms Loveday urges. It is not reasonable or appropriate to restrict Mr Beling’s lawful right of access to his own property. The orders will instead seek to constrain the opportunity for conflict between Ms Loveday and Mr Beling and set some basic parameters for how they interact with each other while at work.

[25] In addition to the orders, I recommend that Ms Loveday establish a separate email account for use in matters external to her work in Bayside Mediation, and that time outside of work be scheduled each week to deal with owner’s corporation business. This will reduce the opportunity for conflict arising during working hours that might impair her preparation for, or delivery of, professional services.

[26] Orders will issue separately to this decision.

COMMISSIONER

Appearances:

M Eagles for the Applicant.

L Beling for himself.

R Tyers for himself.

Hearing details:

2021.

Melbourne (by video):

October 20.

Printed by authority of the Commonwealth Government Printer

<PR736629>

 1   Work Health and Safety Act 2011 (Cth), s.7(3).

 2   Fair Work Act 2009 (Cth), s.789FD(3).

 3   Re KuRingGai Co-operative Building Society (No.12) Ltd [1978] FCA 50.

 4   R v the Judges of the Federal Court of Australia; Ex parte Western Australia National Football League (Inc) [1979] HCA 6; Aboriginal Legal Service of Western Australia (Inc) v Lawrence [No 2] [2008] WASCA 254; United Firefighters’ Union of Australia v Country Fire Authority (2015) 228 FCR 497.

 5   Fair Work Act 2009 (Cth), s.789FD.

 6   Bowker & Ors v DP World & Ors [2014] FWCFB 9227 at [48]-[51].