Glenda Herbert
[2024] FWC 2498
•17 SEPTEMBER 2024
| [2024] FWC 2498 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Glenda Herbert
(AB2024/134)
| COMMISSIONER SCHNEIDER | PERTH, 17 SEPTEMBER 2024 |
Application for an FWC order to stop bullying
On the 1 March 2024, Ms Glenda Herbert (the Applicant) made an application under section 789FD of the Fair Work Act 2009 (Cth) (the Act) for an order to stop bullying in the workplace. The Applicant is employed by Swan Transit (the Employer).
Background
The application listed one fellow employee of the Respondent, Mr Paul Sargon (the Person Named). The Applicant and the Person Named were both employed as bus operators by the Employer.
The parties attended two conferences before the Commission in attempt to resolve the application without the need for a Hearing.
Ultimately, the parties could not reach a mutually agreeable resolution, and a Hearing was listed on 21 June 2024.
The Applicant commenced working for the Employer on 10 April 2010 as a bus operator.
The Applicant and the Person Named worked together for approximately five years and shared an amicable working relationship for the majority of that time.
In 2018, the Applicant and Person Named along with other employees of the Employer worked in Sydney for an extended duration. During this trip to Sydney, the working relationship between the Applicant and Person Named soured.
Following an incident between the Applicant and Person Named, the Applicant lodged a formal complaint to the Employer against the Person Named. The Employer took disciplinary action against the Person Named at the time of the complaint.
Following this, the Employer implemented measures to ensure the Applicant and Person Named would not be required to interact with each other during the workday, this included the following action:
·The Applicant and Person Named starting their workdays at different depots.
·The Employer attempting to ensure they did not have the same rest break or mealtimes at the same location.
The above measures worked well to prevent any further issues between 2018 and 2023.
However, on several occasions throughout 2023 to 2024 the Applicant and the Person Named happened to overlap rest breaks or mealtimes at the same location.
The Employer submits that this overlap was due to the scheduler working on those days not being aware of the practice of keeping the Applicant and Person Named away from each other.
Relevant Legislation
A worker who reasonably believes that he or she has been bullied at work may apply to the Commission for an order to stop bullying. Section 789FC of the Act provides:
“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, an 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.”
Section 789FD of the Act sets out when a worker has been bullied at work, as below:
“789FD When is a worker bullied at work?
(1)A worker is bullied at work if:
(a)a fee for making an application to the FWC under this section; and
(i)an individual; or
(ii)a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
(b)that behaviour creates a risk to health and safety.
(2)To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.
(3)If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:
(a) the person is:
(i)a constitutional corporation; or
(ii)the Commonwealth; or
(iii)a Commonwealth authority; or
(iv) a body corporate incorporated in a Territory; or
(b)the business or undertaking is conducted principally in a Territory or Commonwealth place;
then the business or undertaking is a constitutionally‑covered business.”
The circumstances in which the Commission may make orders to stop bullying are set out in s.789FF of the Act, as produced below:
“789FF FWC may make orders to stop bullying
(1)If:
(a)a worker has made an application under section 789FC; and
(b)the FWC is satisfied that:
(i)the worker has been bullied at work by an individual or a group of individuals; and
(ii)there is a risk that the worker will continue to be bullied at work by the individual or group;
then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.
(2)In considering the terms of an order, the FWC must take into account:
(a)if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body—those outcomes; and
(b)if the FWC is aware of any procedure available to the worker to resolve grievances or disputes—that procedure; and
(c)if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes—those outcomes; and
(d)any matters that the FWC considers relevant.”
Applicant’s Submissions
The Applicant’s submissions outline the history between the Applicant and the Person Named, detailing the incident that occurred in Sydney on 12 July 2018 and the subsequent workplace investigation that followed.
The Applicant submits that the bullying behaviour which had been investigated in 2018 commenced again in 2023 and has continued into 2024.
The Applicant made submissions that the incidents in 2024 involved “glares and gestures” from the Person Named towards the Applicant.
The Applicant submits that the Employer has failed to protect her from further instances of bullying from the Person Named and, as a result, the Applicant is seeking an order that the Employer ensure the Person Named does not come into contact with the Applicant.
Applicant’s Evidence
The Applicant’s evidence primarily focused on the events that occurred in Sydney on 12 July 2018 and the subsequent investigation.
As I will highlight further in this decision, the Applicant’s version of events as it relates to the Sydney incident and subsequent investigation is disputed by the Employer and Person Named.
The Applicant details the Sydney trip and states that the Person Named regularly interacted alone with her and infers that suggestive comments had been made by him to other coworkers.
The Applicant provides her side of events concerning the incident in the minivan. The Applicant outlines a conversation she overheard between the Person Named and another coworker after he had forgot to pick the coworker up at some earlier point in time. The Applicant states she mistakenly interpreted the interaction to be of a joking nature and started to laugh. The Applicant states that the Person Named directed a vitriolic outburst towards her in front of coworkers.
The Applicant states she was informed by others that the Person Named had suggested she was romantically interested in or involved with him.
The Applicant was unhappy with the resolution of the Sydney incident and did not believe the training required by the Person Named was adequate, instead suggesting an anger management course.
The Applicant gave evidence in relation to events that allegedly occurred which involved other employees in the period of 2018 and 2019.
The Applicant refutes any allegations that she was interested in or inappropriate towards the Person Named.
The Applicant outlines that the interactions between herself and the Person Named in 2023 and 2024 are further instances of workplace bullying and, as a result, seeks that the Employer keep the Person Named out of her space whilst at work.
Employer’s Submissions
The Employer submits that the Applicant has failed to provide any evidence to substantiate the assertion that bullying has occurred or that there is any risk of it continuing. Accordingly, the Respondent is of the position that the application should be dismissed.
The Employer made submissions regarding the events in Sydney in 2018 and asserts that the Applicant’s submissions and evidence were not consistent with the outcome or findings of its investigation into the incident.
The Employer confirms that Procare, who completed an independent third-party investigation in relation to the Sydney incident, made the following findings:
• The Person Named had verbally abused the Applicant in front of her peers, however, was not violent, threatening or physically abusive.
• Confirmed that the Person Named admitted telling colleagues that he thought the Applicant may have had romantic feelings towards the Person Named, however it was not substantiated that this was sexual harassment.
The Employer confirms that, following the investigation, the Person Named accepted his behaviour was inappropriate and offered an apology to the Applicant. The Person Named received a verbal warning for his conduct and failing to meet the required standards of the Employer’s Inappropriate Behaviour Policy.
The Employer submits that the Person Named has not been involved in any similar incidents with other employees of the Employer.
The Employer states that it is content to continue the standard process that has been in place since 2018, being that the Applicant and Person Named will not be rostered to have their meal breaks at the same location and time.
Navjot Singh Pannu – Evidence
Mr Navjot Singh Pannu is the Operations Manager for the Employer at the Midvale, Mundaring, and Ellenbrook Depot, having commenced his employment on 4 March 2024.
When commencing employment with the Employer, Mr Pannu was given instructions to ensure that the Applicant and the Person Named were rostered to have their meal breaks at different times to prevent any interaction.
On 1 May 2024 at around 11:45am, the Applicant met with Mr Pannu and enquired why he had allowed the Person Named to work at the same station as her.
The Applicant then explained that, earlier that morning, when she was exiting Midland Station in her bus, the Person Named was entering the Midland Station at the same time and had looked at the Applicant.
It was the understanding of Mr Pannu, based on the information he had received, that the Applicant and the Person Named did not have to be kept off the same route or not be present at the same train station.
Mr Pannu also provided evidence regarding an incident on 1 May 2024, at which time the Applicant alleges the Person Named glared at her and made unnecessary eye contact.
The Employer provided video footage from the internal camera of the bus driven by the Person Named on the date in question. The footage shows the Person Named entering the Midland bus station on the morning of 1 May 2024 at the time the alleged incident was said to occur.
It was the evidence of Mr Pannu that, having reviewed the video footage, he considered the conduct of the Person Named unproblematic noting that he simply turned into the bus depot in a safe manner in accordance with the duties of his role.
James Stanley – Evidence
Mr Stanley works for the Employer as a casual bus driver, having commenced this role in July 2022.
It was the evidence of Mr Stanley that on 22 March 2023 the below occurred:
“• After finishing work, at around 8:00pm, Mr Stanley and the Person Named returned to the Ellenbrook Depot to refuel, clean, and park their buses.
“• After completing their duties, Mr Stanley and the Person Named were having a general discussion in the lunchroom. Mr Stanley states no other employees were present at the commencement of the discussion.
“• Mr Stanley gave evidence that, after a few minutes of conversation, the Applicant entered the lunchroom and stated “What are you doing here? Get out, get out you filthy trout” in reference to the Person Named.
“• Mr Stanley states that the Person Named responded with “Excuse me? This is my workplace, I have just finished my shift and want to go home”.
“• It was the evidence of Mr Stanley that the Person Named did not provoke or attempt to provoke the Applicant. Mr Stanley states that the Person Named was calm and professional, describing him as a “perfect gentleman” during the interaction.
Allan Ritchie – Evidence
Mr Ritchie has worked for the Employer for over 20 years and currently works in the role of Area Manager.
Mr Ritchie provided evidence regarding the Sydney incident. It was the evidence of Mr Ritchie that he disagrees with the evidence of the Applicant regarding the Sydney incident.
Mr Ritchie confirms that the Person Named was disciplined, following the Sydney incident in 2018, and completed training to reinforce the expected stand of behaviour required moving forward.
Person Named
The Person Named denied that he had bullied or was continuing to bully the Applicant in the workplace. The Person Named is of the position that the interpersonal issues between himself and the Applicant have resulted in him now being targeted by the Applicant in response to her perception of his conduct.
The Person Named put forward a significant amount of material concerning the events that occurred in Sydney in 2018. In summary the Person Named put forth the below:
• The Applicant’s submissions are not consistent with the findings of the report completed by the Employer’s third-party investigator, Procare.
• The Person Named detailed how he had come to the suspicion that the Applicant may have had romantic interest in him during this trip, as she referred to him as “boyfriend” and repeatedly attempted to set up social interactions for the two. The Person Named states that he made some effort to avoid social interactions where the two would be alone.
• The Person Named discusses how he was informed by a coworker of the Applicant disparaging him as a worker. The Person Named sought to address this issue by confronting the Applicant in front of others, so that witnesses were present. The Person Named realises that the way in which he sought to address his grievance with the Applicant and doing so in the presence of others was not the best course of action and caused additional embarrassment.
• The Person Named asserts that he did not use foul language when addressing the Applicant and that he was positioned in a way that could not be considered physically threatening.
• The Person Named maintains that he never referred to the incident as a “lovers tiff” nor did he suggest that the two were in a relationship. The Person Named states that he concluded she may have interest in him due to her behaviour during the Sydney trip and concludes that the interpersonal issues the two now have may be a result of the Person Named commencing a relationship with another coworker.
• The Person Named acknowledges that he received a verbal warning for his conduct towards the Applicant whilst driving the minivan in Sydney and that he was then directed to complete further training. The Person Named was also required to issue a formal verbal apology to the Applicant which he did during a meeting organised by the Employer. The Person Named states that the Applicant expressed words to the effect that his apology was not satisfactory prior to lodging a further complaint regarding the Sydney incident with additional and untrue detail.
The allegations of sexual harassment were not substantiated by the third-party investigator.
From 2018 to present, the Person Named has not been warned or counselled for any subsequent incidents.
The Person Named put forth the following regarding the recent allegation of the Applicant which are the subject of this application:
• In relation to the incident in March 2023, the Person Named states that the Applicant initiated the verbal interaction and asserts that he did not escalate the situation. The Person Named states that he was simply speaking to another colleague prior to heading home at the end of his shift.
• In relation to the incident of 21 January 2024, the Person Named states that at no stage did he make a verbal comment to the Applicant. The Person Named states he was washing his dishes when the Applicant entered the meal room before making comment and leaving.
• The Person Named denies the allegation of the Applicant that he made prolonged and inappropriate eye contact with the Applicant on the morning of 1 May 2024 when their buses passed each other at a station.
• The Person Named maintains that he has not acted in a manner that could be considered bullying towards the Applicant and has actively avoided interaction with her since the Sydney incident. The Person Named states that these issues have caused him distress and believes that the conduct of the Applicant towards him is now the issue of concern.
Consideration
12 July 2018 Incident
The parties are in dispute regarding the events that occurred during a work trip to Sydney in 2018 and the events which followed. Although the incident in Sydney is only strictly relevant to the context of this application and relationship between the Applicant and Person Named, it is clear the process followed by the Employer in remedying this incident is at issue in light of the most recent allegations. The parties do not dispute that the Person Named acted in a manner contrary to the Employer’s policies towards the Applicant, despite the nature and extent of the conduct remaining somewhat disputed.
It is not disputed that an incident occurred which resulted in the Employer engaged Procare to complete an independent third-party workplace investigation in relation to the incident.
On assessment of the materials before me, I am satisfied that this issue was concluded by the Person Named receiving a verbal warning and being required to complete training to ensure there were no further instances of such behaviour. It is apparent that the investigation substantiated some but not all the allegations arising from the Applicant’s complaint.
The Applicant is clearly aggrieved at the outcome of this investigation and was not satisfied with the findings and subsequent disciplinary action taken against the Person Named by the Employer.
Following the outcome of the investigation and the disciplinary action, the Employer acted pragmatically and put in place rostering measures to minimise future workplace interactions between the Applicant and the Person Named. The measures implemented by the Employer included ensuring the two individuals commenced their respective shifts at different locations and would not overlap meal break or rest stop locations at the same time.
Events of 2023 and 2024
Between 2018 and March 2023 there is no evidence or accusations of the Person Named engaging in any bullying behaviour towards the Applicant.
On review of the material before me, I am not satisfied that there is sufficient evidence to substantiate the existence of bullying occurring during the incidents noted by the Applicant occurring in 2023 and 2024. Upon review of the materials, I am not satisfied that the Person Named acted in a manner that could constitute bullying. Further, I am not satisfied that the Person Named even acted in a manner that could be expected to initiate confrontation or escalate any of the interactions.
When the parties came into brief contact with each other in March 2023, the Person Named did not act in a manner that could be considered as bullying for the purposes of the Act. I am satisfied that the Person Named was simply having a conversation with a colleague when the Applicant entered the break room, the Person Named then only spoke to the Applicant after being provoked and, on assessment of the evidence before me, responded reasonably in a manner which appeared to be an attempt to end the interaction.
Likewise, in relation to the January 2024 incident, there is no suggestion that the Person Named behaved in an inappropriate manner towards the Applicant. From the submissions and evidence, the Applicant entered the break room, saw the Person Named was present, made a comment reflecting unhappiness with the situation, and left the break room.
Finally, in relation to the incident in May 2024, having witnessed the video footage of the Person Named entering the depot, I am not satisfied there are grounds to support the allegation that the Person Named acted in any concerning manner or in a way which could be considered bullying. Having viewed the video footage at the Hearing, I agree with the evidence provided by Mr Pannu. The conduct of the Person Named on 1 May 2024 is completely appropriate.
Findings
Having considered the submissions and evidence of the parties, I have concluded that the Applicant is not being bullied by the Person Named. Overall, the version of events regarding the various alleged incidents of bullying put forth by the Employer, and secondly the Person Named, are more consistent with the evidence presented in supporting documentation and by others present during the incidents that that of the Applicant.
For bullying to occur the Act requires repeated and unreasonable behaviour towards the Applicant. Based on the information before the Commission, I am not satisfied that there have been repeated incidents of unreasonable behaviour towards the Applicant by the Person Named. Accordingly, there is no scope for an order to stop bulling to be made.
I find the submission of the Applicant that the Employer has decided to leave the Applicant to manage the situation or fail to maintain separation between the pare to not be consistent with the material before me, notably the instructions provided to Mr Pannu upon him commencing in the position of Operations Supervisor in March 2024.
From the evidence provided by Mr Pannu, the Employer remains committed to continuing the custom and practice from 2018, of rostering the Applicant and Person Named to commence work at different locations and roster the parties to have their meal breaks at different locations at different times. However, as the Employer has noted, there will always be circumstances in which the parties may end up at the same location at the same time due to rostering issues occurring. Although it is apparent that the Applicant has a notable dislike of such overlap occurring, I am not satisfied that these incidents have imposed any risk of harm to the Applicant and the Person Named has not acted in an inappropriate manner during any of the recent incidents.
It is clear that there was in incident during the Sydney in 2018 in which the Person Named confronted the Applicant in a questionable and embarrassing manner. Following this singular incident, the Employer has made effort to keep the pair separated as it is clear any ongoing positive working relationship between the two has been tarnished. I am satisfied that the investigation, report, and procedures following the complaint were reasonable in the circumstances and that the remaining allegations could not be substantiated.
Further, it is clear that the Person Named has been notably affected and distressed following the fall out of the Sydney incident. In the event any overlap occurs, the Person Named appears to be too concerned and fearful of the Applicant’s reaction to interact and pose any sort of risk as is alleged.
Although it would be wise for the Employer to maintain the current rostering arrangement to avoid overlap for the sanity of all involved and due to the inability of the Applicant and Person Named to maintain a working relationship, there are no grounds upon which any orders could be issued due to my finding above.
In conclusion, I am not satisfied that bullying within the meaning of the Act has occurred. Accordingly, the application is dismissed and an Order reflecting this is issued.[1]
COMMISSIONER
[1] PR779222.
Printed by authority of the Commonwealth Government Printer
<PR779221>
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