Green v NT of Australia - [2022] NTLC 23

CITATION: Green v NT of Australia [2022] NTLC 023

PARTIES: Leslie John Green

v
Northern Territory of Australia

TITLE OF COURT: LOCAL COURT

JURISDICTION: CIVIL

FILE NO(s): 21940174

DELIVERED ON: 7 NOVEMBER 2022

DELIVERED AT: DARWIN

HEARING DATE(s): 21, 22 and 23 JUNE 2021

JUDGMENT OF: JUDGE AUSTIN

CATCHWORDS:

Contract – terms and conditions of employment – contractual obligation - incorporation express term – aspirational statement – prevention of bullying and harassment in workplace – implied common law term to provide safe and healthy working environment – scope of implied term – bullying and harassment and unreasonable management action

Return to Work Act 1986 (NT)

The Public Sector Employment Management Act 1993 (NT) Workers Rehabilitation and Compensation Act 1986 (SA)

The Northern Territory Public Sector Fire and Rescue Service Act (PFES)

Sullivan v Moody [2001] 207 CLR 567

New South Wales v Paige [2002] NSWCA 235

Sheldon v McBeath (1993) Aust Torts Rep 81-209

Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCACF 177

Jones v Dunkel (1959) HCA 8; 101 CLR 298

Re Ms SB [2014] FWC 2014

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Goldman Sachs JB Were Services Pty Ltd v Nikolich [2007] 163 FCR 62 Koehler v Cerebos (Australia) Ltd [2005] 222 CLR 44

Govier v The Uniting Church in Australia Property Trust (Q) [2017] QCA 12

Hayes v State of Queensland [2017] 1 QD R 337

Kelly v Atanaskovic Hartnell Corporate Services Pty Limited (No 2) [2022] State of South Australia v McDonald [2009] SASC 219

REPRESENTATION:

Counsel:

Solicitors:

Plaintiff: Ms Grimster & Mr Piper

Defendant: Mr Grove

Plaintiff: Piper Ellis and Associates

Defendant: Ward Keller

Judgment category classification: C

Judgment ID number: [2022] NTLC 023

Number of paragraphs: 303

IN THE LOCAL COURT

AT DARWIN IN THE NORTHERN TERRITORY OF AUSTRALIA

No. 21940174

JUDGE AUSTIN

Background

BETWEEN

Leslie John Green Plaintiff
AND

Northern Territory of Australia Defendant

REASONS FOR JUDGMENT

7 November 2022

The Plaintiff is claiming his employer, the Defendant, owed him a contractual duty of care to protect him against a foreseeable risk of harm arising out of his employment. He claims the duty arises out of both an express term of his contract of employment to prevent bullying and harassment in the workplace (Clause 59.1 - Partnership Agreement) 2004 and a common law implied term to provide a safe and healthy working environment.

The Plaintiff sued the Defendant for pecuniary damages arising out of the alleged breach of the terms of the employment contract at the workplace. There is no claim for personal injury and the claim is based in contract.

The Initiating Statement of Claim was filed by the Plaintiff on 28 October 2019. An amended Statement of Claim was filed on 8 October 2020.

A Defence was filed by the Defendant on 28 April 2020. An Amended Defence was filed on 26 October 2020.

An interlocutory application to amend the defence to add a limitation defence was filed by the Defendant on 23 April 2021. I refused that application on 17 June 2021.

The Respondents rely on their amended defence and the Plaintiff on their amended SOC.

The matter proceeded to hearing on 21, 22 and 23 June 2021. Multiple exhibits and evidentiary material were tendered at the hearing and Mr Green gave evidence. The evidence of the Plaintiff was largely uncontested.

Both parties provided pre-trial and concluding submissions orally and in writing on more than one occasion. The final written submissions and replies were filed by consent of the

parties by 22 December 2021. Further leave was then sought by the Plaintiff to file further written submissions and a defence reply which was consented to by the Defendant. These submissions were filed and served by 28 April 2022.

Overview

The Plaintiff, Mr Green’s claim arises out of events which occurred when he was employed by the Defendant as a Fire-fighter. In late 2015 he was promoted to the position of leading Fire-fighter to the Tennant Creek Fire-station. Whilst there he raised concerns with his superiors about his immediate supervisor, the Officer in Charge of the Tennant Creek Fire- station, Mr Nathan Ferguson. Mr Green complained to his superiors that OIC Ferguson’s conduct at work was causing him concerns. As a result of the complaints, Mr Green’s superiors at the Alice Springs Fire-station dealt with the matters he raised.

OIC Ferguson and Mr Green’s superiors subsequently initiated disciplinary proceedings against him on or about 27 or 28 October 2016 and the Defendant actioned those proceedings. Mr Green was suspended from duty during the workplace investigation, and he sought to defend the proceedings. On 16 December 2016 the Chief Fire Officer (CFO) made findings adverse to the Plaintiff which resulted in a disciplinary transfer of him on 12 April 2017, from his duties at Tennant Creek as 2nd Fire-officer to Alice Springs. His family moved to Adelaide.

The adverse outcome of the disciplinary proceedings was that Mr Green had breached discipline in 4 ways in regard to 4 conduct allegations. The Plaintiff appealed the outcome of the disciplinary proceedings on 24 March 2017 to the Public Sector Appeals Board (the Board). On 14 March 2018 his appeal was successful (written decision 18 May 2018) with the Board finding the Defendant had erred. The findings against Mr Green were set aside in their entirety. Mr Green however complains that the Defendant breached an express term of his contract of employment by failing to prevent bullying and harassment in the workplace and an implied common law term by failing to provide a safe and healthy work environment.

The Plaintiff’s case depends on him proving the existence and scope of the alleged (1) Express term and (2) Implied Term of his contract of employment and (2) that those terms were breached by his employer, and (3) the breach caused the Plaintiff to suffer financial loss/damage that was reasonably foreseeable.

The Defendant says the Plaintiff’s claim must fail as 1) he cannot establish on the evidence that Clause 59.1 - (Partnership Agreement) 2004, (PA), has been expressly incorporated into his contract of employment; 2) he cannot prove breach of the implied term; 3) he cannot claim damages for breach of the common law implied term for economic loss as opposed to personal injury; 4) the common law claim is statute barred by s52 of the Return to Work Act (NT) and further 5) that his claim for breach of contract for both alleged terms cannot include the disciplinary proceedings.

Whether the Plaintiff’s claim is actionable under an express term of the contract is contingent amongst other matters, on firstly determining whether clause 59 of the PA is incorporated into his employment contract as well as ascertaining precisely what conduct the Plaintiff relies on as the Defendant’s bullying and harassment in the workplace.

As to the implied common law term to provide a safe and healthy work environment, the Defendant concedes that term however the precise scope of the term is to be determined.

This court must determine whether the Plaintiff can hold the Defendant liable for any breach of an express term of the contract or an implied term of the contract from the fact: a) there was an alleged failure to action any complaint he made of OIC Ferguson’s conduct and
b) arising from the workplace investigation by the Defendant in connection with the process of the investigation of the complaints by OIC Ferguson about him, the disciplinary proceedings.

A significant issue is whether the Plaintiff asserts that the Defendant has failed to provide a safe system of work by not reasonably managing the disciplinary proceedings. If he has so pleaded, his claim may fail at common law. However if he has not so pleaded then his claim may be actionable at common law.

The issues in this case are:

Express Term:

a)Is the Plaintiff employed under a contract of employment?
b)Is Clause s59.1 of the Partnership Agreement 2004 (PA) expressly incorporated into his contract of employment;
c)What conduct is pleaded as the breach of contract by the Defendant?
d)Was the Plaintiff bullied and harassed by OIC Ferguson at work;
e)Did the Plaintiff complain to his superiors about OIC Ferguson’s conduct?
f)What was procedure (contractual) for the Defendant to manage workplace complaints about bullying and harassment?
g)Did his superiors fail to prevent bullying and harassment by OIC Ferguson of Mr Green by not managing his concerns about OIC Ferguson;
h)Was the Plaintiff bullied and harassed as a result of the disciplinary proceedings?
i)What procedure was the Defendant contractually obliged to comply with to manage the disciplinary proceedings?
j)What weight is to be given to the Public Sector Appeals Board Decision in determining if the Plaintiff was bullied and harassed by the Defendant at work?
k)Has the Plaintiff proven that the Defendant breached the express term by a) failing to prevent bullying and harassment of the Plaintiff at work by not dealing with his concerns about OIC Ferguson; and/or b) by not managing the disciplinary proceedings as contractually obliged to?

Implied Term:

l)Given the Defendant concedes there was an implied common law term of the Plaintiff’s employment contract that the Defendant would provide a safe and healthy work environment, what is the precise scope of that term;
m)Can the Plaintiff rely on both the conduct of the supervisor OIC Ferguson; the conduct of Mr Green’s superiors; and the internal disciplinary proceedings to ground the cause of action;
n)Has the Plaintiff pleaded that the Defendant has bullied and harassed him in the workplace and failed to provide a safe system of work by, amongst other matters, not reasonably managing the disciplinary proceedings?
o)Does Sullivan v Moody [2001] 207 CLR 567 and the State of New South Wales v Paige [2002] NSWCA 235; (2002) 60 NSWLR 371 preclude the existence of a duty owed by an employer to an employee to take care in doing acts that might injure an employee because the acts are done in the course of a workplace investigation; or

p)Has the Plaintiff limited his claim for breach of the implied common law contractual term in such a way that the claim raises only matters outside the process of the investigation of the complaints against him i.e. the disciplinary proceedings?
q)What is the significance if any of the Board’s findings;
r)Is the common law term only actionable for personal injury suffered at work or is it actionable for pecuniary damages/economic loss;
s)Is any common law claim under the implied common law contract term statute barred by s52 of the Return to Work Act NT;
t)If not statute barred, did the Defendant breach the common law term by failing to provide a safe and healthy working environment;
u)Did the Plaintiff suffer financial loss as a consequence of any breach of contract, express or implied term?

The Merits of the Application The Plaintiff’s Case

The Plaintiff’s case is the Defendant breached an express and an implied term of the employment contract where the Defendant failed to:

a)Express Term (Partnership Agreement Clause 59.1) 2004: take all reasonably practical steps to prevent harassment and bullying in the work place; and/or
b)Implied Term (Common Law): provide a safe and healthy system of work.

The Plaintiff’s case is that the breaches of the express and the implied terms of the contract are the 20 pleaded allegations, set out in paragraph 5a) – 5t) (express term) and paragraph 7 (the implied term which relies on the same particulars).

The Plaintiff’s case is his cause of action in contract commenced in late 2015 or early 2016 when he was transferred to Tennant Creek to commence his position as 2nd Fire Officer and there followed a continuous and cumulative series of relevant events which constitute the breach of the terms of his employment contract and culminated in his appeal to the Public Sector Appeals Board (the Board) and the decision of the Board on 14 March 2018 (Decision), or his forced uplift from Tennant Creek by his employer on or about 12 April 2017 (which occurred earlier in time).

The Plaintiff submits the evidence shows a continuing omission to take steps which would have prevented a) or provided b) (the contract terms above in paragraph 18). He asserts the breaches include the conduct of his direct supervisor OIC Ferguson from late 2015 to 30 August 2016, his superiors subsequent failure to prevent bullying and harassment in the workplace after he complained to them about OIC Ferguson’s conduct towards him and the subsequent disciplinary proceedings instigated by OIC Ferguson and his superiors on or about 27 and 28 October 2016.

The time of occurrence of the breach will turn on the construction of the particular contract, see Sheldon v McBeath1. The Plaintiff claims the notion of a continuing duty, as postponing the accrual of a breach of contract in his case, due to nature of the continuing duty as

1 Sheldon v McBeath (1993) Aust Torts Rep 81-209. In that case, an architect breached the contract in the design of the footings. The Court held that, in performing the contract, there was always the possibility (even if it were impractical) for the correction of the mistakes to take place and the architect had a continuing duty to do so. The Court held that, in that case, the breach occurred when the contract ended and the work handed over - as it was from that time that the architect ceased to have a role that would have allowed correction.

opposed to the Defendant’s contention. The Plaintiff asserts the breach accrued on the decision of the Board on 14 March 2018 (Decision, written decision on 14 May 2016), or his uplift from Tennant Creek by his employer on or about 12 April 2017 as a result of the disciplinary transfer (which occurred earlier in time).

The Defendant’s Case

The Defendant’s contention is that there are arguably distinct causes of action pleaded in paragraph 5 and 7 of the SOC, accruing each time the Defendant did something alleged in paragraph 5 and 7 as particularised.

The Defendant asserts the Plaintiff has not particularised a claim that facts and circumstances from 27 and 28 October 2016 onwards, (paragraph 5h) – t), the subject of the disciplinary proceedings constituted bullying or an unsafe work environment. The Defendant’s case is the disciplinary proceedings are not particularised in the Defendant’s claim as part of the bullying or unsafe work environment and that it is the conduct of OIC Ferguson alone, (paragraph 5a) – g), that is particularised as the bullying, with the last breach occurring on 30 August 2016.

Regardless of how the Plaintiff’s case is particularised the Defendant’s case is also that the facts and circumstances particularised including the disciplinary proceedings do not constitute bullying and an unsafe work environment and the claim is not made out.

Significantly the Defendant asserts that:

a)The Plaintiff cannot rely on the disciplinary proceedings to ground his cause of action to prove a breach of either the express or implied term asserted;
b)There is no Express Term as contended by the Plaintiff in the contract of employment;
Express Term (Partnership Agreement - Clause 59.1): to take all reasonably practical steps to prevent harassment and bullying in the work place; and/or
c)The Common Law Implied Term to provide a safe and healthy system of work is to prevent foreseeable risk of personal injury and therefore the Plaintiff’s claim for Economic Loss/Pecuniary Damages is not actionable at law;
Implied Term (Common Law): to provide a safe and healthy system of work.
d)Any common law action for damages is precluded by s52 of the Return to Work Act
Implied Term (Common Law): to provide a safe and healthy system of work;
e)The Plaintiff has failed to prove any breach of either the express or implied terms of the contract.

What Mr Green is alleging constitutes bulling and harassment and/or a failure to provide a Safe and Healthy System of work

The Plaintiff has nonetheless pleaded that, a) the supervisor OIC Ferguson’s conduct is part of the alleged breach; and b) his superiors conduct in failing to act on his concerns is part of the alleged breach; and c) that the Defendant’s conduct attributable to the employer on or about 27 and 28 October 2016 and afterwards, the disciplinary proceedings against him, also constitutes part of the continuous breach of the Defendant’s contractual duties.

Mr Green relies on all this conduct as contributing to the bullying conduct and says the Defendant failed to prevent such bullying in the workplace and this resulted in an unsafe work environment. The Plaintiff asserts a cumulative breach.

I remain of the view that while it may be arguable generally that the Plaintiff’s case could be pleaded as separate and distinct breaches or causes of actions, the nature of this particular case is that the Plaintiff alleges that the Defendant breached their contractual obligations due to multiple and cumulative acts/omissions attributable to the supervisor OIC Ferguson and the employer as a continuous course of conduct. Isolated incidents are not alleged as breaches of the terms of the contract.

The definition at law of what is required to prove bullying and/or harassment in the work place of and by its very nature usually and by necessity usually requires more than just one isolated act and/or omission by the offending party. A workplace where an employee is subject to bullying and harassment or a failure to prevent such conduct, may constitute an unsafe and unhealthy work environment.

The terms bullying and harassment may by their very definition both at common law and in statute variously defined, include the repetition of certain behaviours by a person or group of persons who act in an unreasonable way towards another targeted person AND their behaviour creates a risk to health and safety. An isolated incident of certain behaviour may constitute offensive or unreasonable behaviour that is unacceptable in the workplace but without it being repeated it may not reach the threshold of bullying behaviour or harassment unless it is repeated.

The Plaintiff submits that the breaches of the express and implied terms occurred over a period of time and had a cumulative effect. He submits that taken as a whole those breaches, viewed objectively, amount to a failure on the part of the Defendant to discharge the contractual duty of care owed to Mr Green.

The Defendant challenges the submission and argues that the disciplinary proceedings are not part of the conduct or circumstances constituting a failure to prevent bullying and harassment in the workplace/or a failure to provide a safe and healthy work environment and cannot be relied on as pleaded.

Mr Green’s grievance commenced in late November 2015 and continues to March 2018. All of the matters in evidence from the time he arrived in Tennant Creek and was supervised by OIC Ferguson provided part of the context in which the objective assessment of the conduct of the Defendant is to be made. However, in considering whether there was any breach of the express term or implied contractual duty of care, it is appropriate to consider, those events commencing in late 2015 as pleaded.

The Plaintiff relies on the same conduct to support a breach of both the express and implied terms as set out below.

The Plaintiff’s evidence

The Plaintiff’s evidence can be summarised as follows:

a)The Plaintiff commenced employment with the Defendant on or around 11 December 2005.2
b)The Plaintiff was engaged as a permanent employee on a contract of employment during his probationary period.

c)The Plaintiff signed a letter of offer on 19 February 2006 (Exhibit P1) which referred to the terms and conditions of his employment as contained in relevant

2 Exhibit P1; Transcript 21 June 2021, p11.

legislation and the applicable Enterprise Bargaining Agreement: The Public Sector Employment Management Act NT (PSEMA), The Northern Territory Public Sector Fire and Rescue Service Act (PFES), and the Rescue Services Partnership Agreement 2004 (PA) as amended from time to time3.
d)In November 2015 the Plaintiff was based in Alice Springs. He applied for and was approved for a promotional transfer to Tennant Creek in the position of 2nd Fire Fighter.4
e)The transfer was for a minimum period of two years and the Plaintiff was led to understand his senior officers would approve a five-year period in Tennant Creek.5 It was the Plaintiff’s intention to work in Tennant Creek for five years and be paid the benefits associated with that posting for that period.6
f)The Officer in Charge (OIC) at Tennant Creek was Nathan Ferguson.7
g)The Plaintiff’s senior officers in Alice Springs, Acting District Officer Kleeman and District Officer Letheby, were aware of issues with OIC Ferguson and warned the Plaintiff of those issues.8
h)They assured Mr Green they would be able to support him should OIC Ferguson act inappropriately,9 including by telling Mr Green:

“If I had any issues in Tennant Creek, I was to report back to [Acting District Officer Kleeman] or the District Officer, which would be Letheby, when he returned into his normal position in the (District Office) in Alice Springs because Tennant Creek falls under the Southern Command.”10

i)After his arrival in Tennant Creek Mr Green returned to Alice Springs to meet with A/ DO Kleeman and / or DO Letheby on a monthly basis11 and, among other things, he said he provided reports regarding bullying and harassment personally by OIC Ferguson,12 including in relation to the following:

i.OIC Ferguson directing Mr Green not to socialise with any volunteer fire fighters (auxiliaries) or any police officers within Tennant Creek;
ii.OIC Ferguson withholding invitations for Mr Green to socialise with Police;13
iii.an incident involving OIC Ferguson holding a child in a stress position against a fence at the fire station with an intention of teaching that child ‘discipline’;14
iv.being told by OIC Ferguson it is ‘his town’ and he can kick Mr Green in the balls if he wants to;15
v.being spoken to by OIC Ferguson like a “pre-drill instructor”;16

j)Mr Green gave evidence that he told DO Letheby about the incident with the child at the fence but that he never heard anything back about it.17

3 Transcript 21 June 2021, p 9-10.

4 Transcript 21 June 2021, p15; Exhibit P6, ASOC, para 5(a) 5 Transcript 21 June 2021, p16; Exhibit P5; ASOC, para 8(b) 6 Transcript 21 June 2021, p16.

7 Transcript 21 June 2021, p16; ASOC, para 5(b)
8 Transcript 21 June 2021, p16-17; Para 5(b) ASOC
9 Paragraph 5(c) ASOC
10 Transcript 21 June 2021, p17

11 Transcript 21 June 2021, p24, 25

12 ASOC; para 5(e)
13 Paragraph 5(d)(iv) ASOC; 21 Transcript 21 June 2021, p 17 – 18, 20, 26
14 Paragraph 5(d)(iii) ASOC; 23 Transcript 21 June 2021, p18, p 19.
15 Transcript 21 June 2021, p18, p24.

16 Paragraph 5(d)(i) ASOC; Transcript 21 June 2021, p18.

17 Transcript 21 June 2021, p.18

k)Mr Green said he raised the incident where OIC Ferguson said he could kick him in the balls if he wanted on a trip to Alice Springs to do the TAE course.
l)Mr Green said his superiors said they would speak to Ferguson generally about his behaviour not about a specific incident.18
m)Mr Green said that he told his superiors that OIC Ferguson said he could not associate or socialise with auxiliaries and they told him, something to the effect of ‘that is not true you know what the rules are associate with whoever you like’.19
n)Mr Green said he also expressed concern to DO Letheby and Chief Fire Officer (CFO) Spain about directions by OIC Ferguson to carry out tasks outside of what Mr Green understood to be the scope of the NTFRS duties, including assisting with the local Speedway. His evidence was that CFO Spain dealt with the issue immediately and put a stop to the speedway assistance, though he did not elaborate on who the CFO spoke to.
o)Mr Green asserted he was told by OIC Ferguson that he should not have brought up with DO Letheby and CFO Spain the issue of the Fire Service providing Fire Suppression at the Speedway at Tennant Creek and OIC Ferguson said that he would tell the speedway at the AGM that the speedway would not be able to function because the 2IC was too lazy to do fire suppression.20
p)Mr Green did not give evidence that he raised OIC Ferguson’s threats to tell the speedway he was lazy and this further conduct of OIC Ferguson with his superiors.
q)Mr Green also gave evidence about OIC Ferguson actively interfering with his social life and withholding invitations to police events however he stated he did not raise this with his superiors and he sorted out his social life himself and made his own friends.
r)Later in evidence Mr Greem said he did raise it with his mentor DO Kleeman who told him he could socialise with whoever he liked and to ignore Ferguson.
s)Mr Green gave evidence that OIC Ferguson spoke to him like a drill Sergeant but he did not raise this with his superiors.
t)Mr Green gave evidence of at least two situations where it was apparent that rather than addressing the issues A/DO Kleeman and/or DO Letheby relayed the complaints to OIC Ferguson which appeared to make him angrier and more upset with him for going outside the chain of command. Mr Green did not give evidence that he told his superiors that OIC Ferguson was getting angrier with him.21
u)Mr Green gave evidence that he spoke to his mentor A/DO Kleeman who was his immediate superior after OIC Ferguson and he dealt with some issues such as the auxiliary issue and the socialising with police issue.
v)With the other issues such as the speedway issue and the Emergency Services Issue A/DO Kleeman directed him to raise those with DO Letheby which he did.
w)Mr Green’s evidence was that telling his superiors was the process he understood he should follow re workplace complaints22.
x)Mr Green said when he raised the issues with DO Letheby he said “I hear what you are saying I will take them up with OIC Ferguson” but there was no offer of any meeting between the parties.23
y)In October 2016 OIC Ferguson and/or DO Letheby initiated disciplinary proceedings against Mr Green. When he attended work on 27 October he was informed he was under investigation and that a formal interview/meeting was to be performed the next day and he could have a support person attend with him.

18 Transcript 21 June 2021; p.24

19 Transcript 21 June 2021; p.24
20 ASOC, para 5(f); Transcript 21 June 2021, p19.
21 ASOC, para 5(g); Transcript 21 June 2021, p18-20.

22 Transcript 21 June 2021, p25.

23 ibid

z)On 28 October 2016 he was suspended from his employment from 28 October 2016.24

aa) Mr Green defended the disciplinary proceedings and denied any misconduct.25
bb) The Defendant offered Mr Green an option to discontinue the disciplinary proceedings against him without further action, if he agreed to a transfer back to Alice Springs, or to have an external investigator appointed to investigate and for Mr Green to remain in Tennant Creek while that occurred.26
cc) Mr Green opted to remain in Tennant Creek and have an external investigator appointed
dd) The evidence was that the Defendant determined they were not required to have an external investigator appointed. 27
ee) The Defendant did not appoint an external investigator and proceeded to make a decision that Mr Green had braced discipline and make adverse findings against Mr Green on all counts of alleged misconduct.28
ff) On 24 March 2017, after the decision of breach of discipline, the Defendant advised Mr Green that he would be transferred to Alice Springs on a disciplinary transfer.29

gg) On 12 April 2017 that occurred.30
hh) Mr Green’s wife and children relocated to Adelaide instead of Alice Springs.31
ii) Mr Green returned to work in Alice Springs under DO Letheby in May 2017.32
jj) Mr Green continued to defend the allegations of misconduct and appealed pursuant to section 59A (b) of the Public Sector Employment and Management Act (PSEMA).33

kk) Mr Green gave evidence that he left the Fire Service voluntarily on 5 December
ll) Mr Green denied committing any breaches of discipline. His evidence was ‘it was a stitch up’;34
mm) Mr Green gave evidence that he asked the Board if he could go back to Tennant Creek to finish his 5 year term as he wanted to save money. However when he moved back to Alice Springs it became clear to him the Board’s rulings were not going to be followed as DO Letheby introduced extra punishments on top of CFO Spain’s and DO Letheby was still supplying misleading information. Mr Green did not elaborate further.35
nn) On 16 April 2018, after the Board’s decision and prior to the 18 April deadline fixed by the Board where he was required to notify the Defendant of his election, Mr Green emailed CFO Spain about his concerns regarding returning to Tennant Creek and stated he would not be returning to Tennant Creek. CFO Mr Spain replied with about ½ an hour. The Correspondence was tendered as exhibit P12.36
oo) The HR Department emailed him on 30 July 2018 and notified him of actions taken as a result of the Board’s ruling. The email became exhibit P13.
pp)Mr Green voluntarily resigned on 5 December 2019 and commenced employment at QLD Fire and Rescue on 6 January 2020.

24 Transcript 21 June 2021, p27-28.

25 ASOC, para 5(k)-(n).

26 Transcript 21 June 2021, p68, Exhibit P7, para [51]; and Exhibit P12, para [45] – [49].
27 21 June 2021, p68, Exhibit P7, para [52]
28 ASOC, para 5(k-n); Transcript 21 June 2021, p70, Exhibit P7, para [53-56]
29 ASOC, para 5(k-n); Transcript 21 June 2021, p70, Exhibit P7, para [66]

30 ASOC, para 5(p); Transcript 21 June 2021, p70, Exhibit P7, para [72-73]

31 ASOC, para 5(q)
32 43 Transcript 21 June 2021, p71 & 85; Exhibit P7, para [72]; 44 ASOC, para 5(r).
33 46 ASOC, para 5(s); Transcript 21 June 2021, p71; Exhibit P7.
34 Transcript 21 June 2021, p77

35 Transcript 21 June 2021, p72

36 Transcript 21 June 2021, p72

On 14 March 2018 the Board set aside the disciplinary decision and made further directions, including:

a)that the Plaintiff be offered the option to return to Tennant Creek;
b)that the Plaintiff be offered the option to remain in Alice Springs;
c)that the Defendant pay the Plaintiff the relocation allowance pursuant to bylaw 28 which was denied to him in April 2017;
d)that the Defendant pay to the Plaintiff the difference between his relocation expenses for his family from Tennant Creek to Alice Springs;
e)that the Plaintiff’s leave entitlements be re-credited for the period 9 November 2016 to 15 April 2017;
f)that all relevant senior HR officers and any managers involved in supervising the Plaintiff be notified of the Board’s decision to set aside the disciplinary findings and action;
g)that the Defendant organise training and performance management plan for Ferguson;
h)that the Defendant organise conciliation between the Plaintiff and Ferguson, in the event he chose to relocate to Tennant Creek; and
i)Further directions in relation to processes of the Defendant.37

The Plaintiff alleged in written correspondence to the Chief Fire Officer on 16 April 2018, exhibit P12, that the Defendant did not take steps to address the unsafe work environment at Tennant Creek and that as a result Mr Green advised him that he was unable to return to Tennant Creek in the circumstances, including that it was a risk to his and his family’s mental health.38

Mr Green alleges that as a direct result of the Defendant failing to address the unsafe work environment in Tennant Creek, he was unable to resume his work at that location and suffered economic loss October 2016 to December 2020.39

The financial loss of Mr Green is set out in exhibits P14 through P21 tendered in these proceedings.

Defence Evidence

The Defendant broadly denied the particulars in paragraph 5 of the ASOC in the defence, but did not substantially challenge the evidence in chief of the Plaintiff in cross examination of Mr Green at the hearing.

The Defendant did however challenge Mr Green about his knowledge of any complaints regime at work at the time he started his employment and during his employment. The Defendant suggested to him that before the disciplinary proceedings were instigated against him, he did know about the procedure set out in the Public Sector Management Act (PSEMA) for making complaints about his employer or the behaviour of fellow employees by seeking a review under s59 of PSEMA.

Mr Green’s evidence was that he wasn’t aware he could make complaint’s to his union about his employer but agreed he became aware of the existence of complaint’s and grievance policies and procedures through his union as a result of what happened to him at

37 ASOC, para 5(t). Transcript 21 June 2021, p71 - 72; Exhibit P7.

38 Transcript 21 June 2021, p73 - 74; Exhibait P12, attachment to email.

39 ASOC, para 8; Transcript 21 June 2021, p75 - 72; Exhibits P14 – P21

Tennant Creek His evidence was that prior to the disciplinary proceedings he was under the impression he would tell management and he’d figure it out from there as he wasn’t told by Alice Springs how it worked40. His evidence was that he only read the section of the PA where he got paid prior to the disciplinary proceedings and he relied on his union delegates. However Mr Green agreed he did vote for the PA and was aware it was a negotiation.

Mr Green was asked in cross examination whether he ever made a formal complaint about OIC Ferguson’s conduct against him to his superiors rather than just relaying concerns to his superiors as set out above. Mr Green insisted that the method of complaining about his superiors was to report the conduct to his managers and supervisors and he believed he followed that process over many years and he followed the expected norm41

Mr Green gave evidence he made a formal complaint to the CFO under s59 PSEMA after the Board’s decision in his favour on 14 March 2018. The complaint was about OIC Ferguson’s bullying conduct towards him and the false allegations OIC Ferguson made against him during the disciplinary proceedings. A document was tendered as evidence of this complaint, exhibit P25. Mr Green also tendered exhibit P26 dated 2 October 2018 which was a letter from the CEO acknowledging the complaint was being taken seriously however as it could be the subject of confidential disciplinary proceedings Mr Green could not be privy to any developments. Mr Green gave evidence he believed his complaint resulted in no action being taken.

Mr Green also gave evidence about his understanding of his employer providing a safe and healthy work environment not only through the award by a psychologist, a Chaplin visiting the station and peer support to workers, he spoke of ongoing training regarding bullying and messages from the Minister and the Commissioner that bullying would not be tolerated. However Mr Green did not give details or particulars about any training or education he received about bullying in the workplace. He only made very general references in his evidence and no procedures or policies were put in evidence.

The Defendant had the opportunity to call witnesses at the hearing but no evidence was called by the Defendant nor was any evidence tendered. The Defendant did rely on the material tendered by the Plaintiff.

Exhibit P12 and P13 tendered by the Plaintiff is evidence that records the Defendant’s response to Mr Green’s assertion that the Defendant made no efforts to address the findings of the Board in the workplace around the time of the decision in April 2018.

Exhibit P12 shows that on 16 April 2018 approximately 30 minutes after receiving Mr Green’s correspondence at about 5pm outlining his complaint about the Defendant not remedying the unsafe work environment he alleged existed at Tennant Creek and notifying the CEO of his decision to elect to stay in Alice Springs as a result rather than return to Tennant Creek, the CFO Mr Mark Spain sent an email acknowledging Mr Green’s email and stating that under no circumstances would the Tennant Creek event be used to hinder Mr Green’s future prospects both within or outside of the NTFRS.

Exhibit P13 is a formal written response from the Human Resource area of NTFRS dated 25 July 2018 which was forwarded to Mr Green by the grievance section on 30 July 2018, documenting steps taken to formally address the Board’s findings and directions. This

40 Transcript 22 June; p13 XXN

41 Transcript 22 June; p. 14 XXN

email outlined the education and notification steps taken within the department and Alice Springs Fire-station to inform relevant parties and supervisors of the outcome of the Board’s decision; performance management of OIC Ferguson and that Mr Green’s complaint against OIC Ferguson was being actioned. It also documented a promotion of Mr Green via a merit selection process.

Mr Green did not put in any evidence about any complaint’s regime other than Clause 59 in the PA. The Clause refers to a grievance procedure under PSEMA. Mr Green’s evidence was he did not make a complaint under PSEMA about OIC Ferguson’s conduct until after the Board’s decision.

What conduct is relied on to prove the express and implied terms?

(Bullying conduct; failure to prevent bullying by superiors; disciplinary proceedings)

Mr Green contends that not only was he bullied and harassed by his immediate supervisor OIC Ferguson, when he complained to those superiors above him in the manner he had been encouraged to do, they failed to prevent the bullying by OIC Ferguson in the workplace. Mr Green testified that he expressed concerns to District Officer Letheby and Acting District Officer Kleeman about Ferguson but nothing happened to stop the behaviour.

Mr Green also complains that although the Defendant through its employees may have genuinely held the belief that Mr Green required some form of discipline, Mr Green contends that that the adverse outcome of the disciplinary proceedings was not reasonable and appropriate and his employer failed to make the workplace safe for him either after his disciplinary transfer from Tennant Creek to Alice Springs, or on the date of the Board’s appeal decision.

Mr Green also complains that once the disciplinary proceedings were instigated the Defendant did nothing to intervene to stop the disciplinary proceedings and this contributed to the failure to prevent him being bullied and harassed at work. In fact the Defendant through its employees instigated and prosecuted the proceedings to an adverse outcome. The Plaintiff relies on the findings of the Board to support his contentions and asks this court on the evidence to make the same finding.

Mr Green asserts that this conduct taken as a whole breached the contractual obligation to prevent bullying and harassment and the failure to provide a safe and healthy work environment and was quite likely to cause Mr Green an injury (in the form of a Psychological disorder). I find it is a significant matter that there was very little if any direct evidence about the existence of a risk to Mr Green of injury or harm.

It is contended in this case that that the Defendant has breached the contract in the following ways:

a)Mr Green was bullied and harassed in the workplace personally by OIC Ferguson between late 2015 and 30 August 2016;

b)Mr Green complained to his superiors, DO Letheby, A/DO Kleeman and CFO Spain about Ferguson’s conduct;
c)His superiors failed to take any action to investigate Mr Green’s complaints about OIC Ferguson’s bullying conduct;
d)The Defendant compounded OIC Ferguson’s bullying conduct by pursuing the disciplinary proceedings instigated by OIC Ferguson on or about 27 and 28 October

2016 against Mr Green which resulted in the adverse outcome for Mr Green in December 2016;
e)The Defendant did not intervene to stop the disciplinary proceedings;
f)The Defendant enforced the disciplinary transfer and uplifted Mr Green from Tennant Creek as a result of the disciplinary proceedings on 12 April 2017;
g)The Defendant failed to make the workplace safe for Mr Green to return to his position at Tennant Creek after the Board’s decision on 14 March 2018;
h)The disciplinary proceedings were unfair and should never have been brought;
i)The Defendant failed to respond to Mr Green’s enquiries about whether they would make the workplace safe for him to return to Tennant Creek and on 16 April 2018 Mr Green notified the Defendant he could not return to Tennant Creek and would be staying at Alice Springs.

Conduct by Ferguson

The conduct complained of by the Plaintiff is that OIC Ferguson specifically personally bullied and harassed him in the workplace between late 2015 and 30 August 2016 by

a)OIC Ferguson directing Mr Green not to socialise with any volunteer fire fighters (auxiliaries) or any police officers within Tennant Creek.42
b)an incident involving OIC Ferguson holding a child in a stress position against a fence at the fire station with an intention of teaching that child ‘discipline’.43
c)being told that OIC Ferguson can kick Mr Green in the balls if he wants to.44
d)being spoken to by Ferguson like a “pre-drill instructor”.45

Mr Green also testified he raised concerns with District Officer Letheby and Chief Fire Officer Spain about directions by OIC Ferguson to carry out tasks outside of what Mr Green understood to be the scope of the NTFRS duties, including assisting with the local Speedway.46

Has the Plaintiff asserted that the disciplinary proceeding were unreasonable management action carried out in an unreasonable manner?

An important issue to resolve is whether the Plaintiff has asserted that the disciplinary proceedings were unreasonable management actions carried out in an unreasonable manner and therefore constituted bullying and harassment of the Plaintiff in the workplace and whether such action created a risk to his health and safety.

The Plaintiff’s claim does as stated above, appear to raise matters outside the process of the investigation of the complaints made against him via the disciplinary proceedings in that he does assert that as a result of the disciplinary action the Defendant failed to remedy what had become an unsafe work environment by not implementing the Boards directions,47 however Mr Green’s claim is not be confined to those circumstances.

I do find that Mr Green complains of a) the failure of the Defendant to properly investigate workplace complaints made by him to his superiors about OIC Ferguson; and further b) that he complains that the Defendant did not intervene at any stage to stop the disciplinary proceedings and this should of occurred and he identifies particular steps in the process itself

42 Paragraph 5(d)(iv) ASOC; 21 Transcript 21 June 2021, p 17 – 18, 20, 26

43 Paragraph 5(d)(iii) ASOC; 23 Transcript 21 June 2021, p18, p 19.
44 Transcript 21 June 2021, p18, p24.
45 Paragraph 5(d)(i) ASOC; Transcript 21 June 2021, p18.

46 ASOC, para 5(f); Transcript 21 June 2021, p19.

47 Transcript 21 June 2021; p.39 submission of Plaintiff’s counsel Ms Grimster; exhibit P12 and P13

where this could have and should have occurred. He ultimately submits that the disciplinary proceedings were wrongly brought.

As in the case of Romero v Farstad Shipping (Indian Pacific) Pty Ltd 48 the Plaintiff is asserting that the process of the workplace investigation against him, the disciplinary proceedings was not conducted fairly and therefore constitutes unreasonable management action which contributed to the failure to prevent bullying and harassment and/or contributed to an unsafe and unhealthy work environment49. Mr Green’s counsel in submissions stated:

Ms Grimster: I would like to tell you about the process that was undertaken by Ferguson Letheby and Spain in initiating the disciplinary proceedings. In prosecuting the disciplinary findings against Mr Green I would like you to find that document (the Board’s written reasons for decision of 14 May 2016) relevant evidence that those things occurred. And I would like the evidence of things occurred to be found to be evidence of pleadings that bullying conduct occurred over the course of November 2015 all the way through to March 2018, when the disciplinary process was overturned.

So the way I have pleaded it and the way the court should find that we’ve pleaded our claim is that there was bullying conduct over that course of time and throughout that course of time, there were opportunities for the Defendant to intervene and stop that bullying and harassment and they didn’t. ….

Her Honour: … You want me to rely on their opinion or do you want me to rely on the fact that a, b, c, d and e happened and at the end of the day those matters did not justify in any way shape or form any disciplinary proceedings at all being taken against Mr Green?

Ms Grimster: the latter your Honour.

The Plaintiff’s written submissions (sought by the Court at the close of the evidence) in the disclose that Mr Green also complains that the Defendant failed to:

a)investigate or take steps to address the complaints by Mr Green (about Ferguson’s alleged bullying conduct); and
b)make any attempt to properly deal with the unsafe situation once the disciplinary action wrongly taken against the employee had been reversed; and
c)It remained impossible for the worker to return to his contracted position as the employer did not take any reasonable steps to make the workplace safe for him once the Board handed down its decision.

Mr Green has asserted certain steps taken during the disciplinary proceedings contributed to the bullying behaviour and the failure to prevent bullying and harassment in the workplace or an unsafe and unhealthy work environment as opposed to just relying on the outcome itself. Mr Green specifically asserts:

a)the institution of, and adverse outcome of the disciplinary proceedings contributed to the failure of the Defendant to prevent bullying and harassment in the workplace and/or the creation of the unsafe and unhealthy work environment (the impugned conduct), [para h Amended SOC]:
b)that during the workplace investigation itself, the suspension from duty contributed to the impugned conduct, [para i Amended SOC];

48 Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177

49 Transcript 21 June 2021; p.39 and submissions of Plaintiff’s counsel Ms Grimster on the weight to be given to the Public Sector Appeal Board’s

c)that CFO Spain advising Mr Green in writing of the adverse outcome and accusing him “of demonstrating a lack of honesty; and a willingness to provide false and misleading information” contributed to the impugned conduct [para k Amended SOC];
d)that CFO Spain advising Mr Green in writing of a disciplinary transfer and a formal caution and giving him time to respond contributed to the impugned conduct [para k Amended SOC];
e)Mr Green being advised by the Defendant that his disciplinary transfer to Alice Springs as would be actioned despite requesting he not be transferred contributed to the impugned conduct [para l, m, n, o Amended SOC];
f)Mr Green being transferred to Alice Springs contributed to the impugned conduct [para p Amended SOC].

I am satisfied Mr Green’s case relies on him proving that the disciplinary proceedings were wrongly taken, that the Defendant could have intervened to stop the proceedings and did not and that they were unfairly conducted. As such he is attacking the process itself and not just the outcome as being unreasonable.

The issue is, are his claims actionable under an express or implied term of his employment contract?

Mr Green does not specifically assert that there is a particular contractual duty that the Defendant owed him to manage the disciplinary proceeding in a particular manner which was breached, he relies on the express and implied contractual terms.

Background and Evidence

The Relevance of the Public Sector Appeal Board’s Decision of 14 March 2018 (published May 2018):

During the hearing the Defendant did not object to the tender of Exhibit P7, the Public Sector Appeal Board Decision of 18 May 2016 which included Agreed Facts P24 as an attachment to the decision, for the purposes of the damages assessment. The Defendant objected to the tender of the decision generally and submitted the decision was not relevant to the Plaintiff’s case regarding bullying and harassment. I disagree.

The Plaintiff wants to rely on the decision to show that the disciplinary proceedings as initiated and prosecuted by the Defendant should never have been commenced, were unfair and/or that the Defendant should have and could have intervened to stop them at certain steps along the way and did not do so.

As already stated, I find, in effect the Plaintiff is asserting that the disciplinary proceedings constituted unreasonable management action carried out in an unreasonable way.

Mr Green, the Plaintiff, gave evidence at the hearing and was cross examined by the Defendant. During his evidence Mr Green was taken to the statement of Agreed Facts P24 which was agreed between the parties as the facts forming the basis of the Appeal by the Plaintiff to the Public Sector Appeals Board (the Board) against the NT Fire Rescue Service Disciplinary Proceedings Decision. I find that he adopted the document effectively in its entirety and without objection during his evidence. He supplemented those facts with oral evidence which was unchallenged in Cross Examination. Documentary exhibits in the form of emails and letters were also tendered during his oral evidence without objection.

I find that Exhibit P7, including the Agreed Facts P24 was admitted by consent as part of the damages assessment for that purpose and as such as it was admissible for one purpose it was also admissible for other purposes. I also find as submitted by the Plaintiff that the decision is relevant to prove:

a)there was an appeal by Mr Green against the disciplinary findings;
b)there was an outcome which found that the Defendant had erred and the adverse outcome of the disciplinary proceedings was overturned in its entirety; and
c)there were specific directions made by the Board to the Defendant.

I also find however it is relevant to these proceedings not only that the Board effectively made findings against the Defendant but that the nature of those findings were that Mr Green’s claim that OIC Ferguson’s complaints against him were entirely without merit were upheld. This assertion goes to Mr Green’s claim before me.

The findings of the Board in no way binds me to come to the same conclusions they did about the disciplinary proceedings if that is an issue I must determine.

Likewise the findings of the Board also in no way relieves this court of its obligation to make its own decision about whether the conduct alleged is proven, constitutes bullying or harassment in the workplace or created an unhealthy and unsafe work environment or whether any cause of action lies as pleaded.

The Use of the Board’s Decision (reasons published 18 May 2018)

The Plaintiff invites the Court to draw a Jones v Dunkel53 inference, that calling any of the persons involved would not have assisted the Defendant’s case. The Plaintiff submits it is therefore open to the Court to make findings of fact on the basis of the Plaintiff’s evidence and records.

Significantly the Defendant did not put in any evidence at the hearing to contradict the Agreed Facts P7 which formed the basis of the findings of the Board’s decision. As such I find that I accept the Agreed Facts P7 as proven by the Plaintiff in these proceedings on the Balance of Probabilities.

However whilst I accept Mr Green’s unchallenged evidence on many material matters that does not mean I accept all the assertions he makes in the face of contradictory evidence in the form of documentation or emails or most importantly that his claim is made out.

On 14 March 2018 the Board handed down its decision. On 18 May 2018 the Board published its reasons for decision. The reasons are important to consider. Throughout the decision the Board found that on the 4 occasions alleged by the respondent the appellant did not breach discipline and that the finding that he did was unreasonable and the outcome for him was punitive and disproportionate when looked at objectively. The Board found that the Defendant had erred in finding the Plaintiff had breached discipline and set aside the findings entirely.

The Board also made particular reference to the suspension of the Plaintiff by the Defendant from 9 November 2016 for 5 months until his transfer on disciplinary grounds from Tennant Creek to Alice Springs. The Board found at para [35] of the written decision that the suspension was a disproportionate, unnecessary and unreasonable response to the alleged breaches of discipline.

The Board made the following findings in its concluding remarks at para [45]:

“.. with a clear understanding by all concerned that the appellant did not breach discipline, and that the Respondent’s finding he had, and the subsequent actions taken were unreasonable and unnecessary.”

On 14 March 2018 the Board set aside the disciplinary decision and made further directions, including:

a.   Option for the Plaintiff to be transferred back to Tennant Creek: that the Plaintiff be offered the option to return to Tennant Creek should he chose;
b.   Option for the Plaintiff to remain in Alice Springs: that the Plaintiff be offered the option to remain in Alice Springs if he chooses not to return to Alice Springs;
c.    Payment of Relocation Allowance: that the Defendant pay the Plaintiff the relocation allowance pursuant to bylaw 28 which was denied to him in April 2017;
d.   Payment of uplift down lift difference to Adelaide: that the Defendant pay to the Plaintiff the difference between his relocation expenses for his family from Tennant Creek to Alice Springs;
e.    Re-crediting of Leave Entitlements: that the Plaintiff’s leave entitlements be re- credited for the period 9 November 2016 to 15 April 2017;
f.     Notification of the setting aside of the Disciplinary Findings and the Actions: that all relevant senior HR officers and any managers involved in supervising the Plaintiff be notified of the Board’s decision to set aside the disciplinary findings and action;
g.    Management Training and Performance Management Plan for OIC Ferguson: that the Defendant organise training and performance management plan for Ferguson;
h.   Conciliation: that the Defendant organise conciliation between the Plaintiff and Ferguson, in the event he chose to relocate to Tennant Creek; and
i.      Conduct of Initial Meetings: that the Defendant Should Review its procedures for the calling of initial meetings regarding potential disciplinary matters and stated it was essential that an employee be provided well in advance of the meeting (at least 24 hours) with an agenda and copies of any supporting documentation for the allegations in order that they can provide an adequate response. The Board also emphasised the need for decision makers to be mindful at all times that decisions and actions taken must be fair, reasonable and proportionate to any breaches found. This is particularly so when suspension of an employee is contemplated;
j.      Right to a support Person at Meetings: that the Guidelines for Support Persons relied on by the NTFRS are outdated and have been superseded by the PSEMA Employment Instructions and do not mandate that Support Persons not be involved or speak in the process. The Board found:
…it seems likely in this particular matter that a better outcome might have been achieved had the support persons from the Union been permitted to more actively assist in the process and a meaningful dialogue been engaged in by all involved.

I find that the Board was a) critical of the CFO’s decision, the findings and the penalty imposed which was appealed by the Plaintiff [para 45]; and b) the Board was critical of the decision to suspend the Plaintiff during the proceedings [para 35]; and c) the Board also criticised the process of the investigation of the complaints made by OIC Ferguson in and

of itself. I find that direction i) and j) are directions in relation to processes of the Defendant.50

There was, also on my reading of the decision, a direct statement in para [39, 40] that the CEO could have and should have taken other action than the disciplinary proceedings but did not do so:

[39] The directions of the Board for the OIC to participate in management training and a performance management plan, is something which the CEO could have, and in the view of the Board, should have taken immediately upon learning of this matter and the manner in which the OIC and other officers involved were conducting themselves in handling the situation.

[40] The correct reaction, in the opinion of the Board, should not have been to permit the OIC and others to allow these relatively minor matters to escalate to the point of disciplinary action against the Plaintiff, but instead for the Senior Management to look at the behaviours of the OIC with a view to assisting him in developing his leadership capabilities and skills.”

This is an expression of the Board that in their opinion after conducting the appeal hearing the CEO could have and should not have permitted the disciplinary proceedings.

The question for this court is whether I am able to come to the same conclusion based on the Board’s decision and the Agreed Facts tendered as evidence. Essentially what is alleged on the evidence before me is that the disciplinary proceedings or the action as a whole constituted unreasonable management action carried out in an unreasonable manner.

It is important to note that Investigating alleged inappropriate work behavior in accordance with established policies and procedures is not bullying. Reasonable Management Action is justified feedback or disciplinary action that is carried out in a reasonable manner. Management Action is considered reasonable if it is fair, transparent, and consistent with established policies and procedures however it may unreasonable if the action is not justified, aggressive or undertaken with malicious intent.

In the case Re Ms SB [2014] FWC 2014, Commissioner Hampton said that ‘reasonable’ management action consisted of the following elements:

a)The behaviour of those being accused of bullying must be management action
b)It must be reasonable for management to take that particular action
c)The action itself must be carried out in a reasonable manner

In that case, the FWC stated that “the action doesn’t need to be perfect or ideal; overall, it may still be reasonable, even if particular steps are not; and the action must be lawful and not ‘irrational, absurd or ridiculous’. Furthermore, “any ‘unreasonableness’ must arise from the actual management action in question (rather than the employee’s perception of it) and there must be an element of adherence to established policies or procedures”.

For something to constitute unreasonable management action the test is not whether something is considered reasonable from the manager’s point of view it has to be objective. The test is also whether the management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’51.

Regarding the disciplinary proceedings, as stated I find the Plaintiff has not proven on the evidence that the Defendant breached the express term of the contract of employment if it is incorporated.

Further I find he is unable to rely on the disciplinary proceedings as being unfair as a breach of the implied term of his contract of employment to provide a safe and healthy work environment as the cause of action does not lie at common law. He also has not established on the evidence that the process of the disciplinary proceedings were flawed, they were wrongly brought, were unfair, or were unreasonable management action.

I find Mr Green also asks this court to find that the outcome of the disciplinary proceedings created an unsafe work environment under the Implied Term as his employer failed to make his workplace at Tennant Creek safe. The Plaintiff asserts his cause of action accrued on his uplift or on the board’s decision. They are different contentions. The decision of the CFO that he breached discipline was made in December 2018. He appealed the decision in April 2017. The decision of the Board on 14 March 2018 overturned the disciplinary outcome and made directions to the Defendant that required action, some regarding the Tennant Creek workplace which directly affected Mr Green and was contingent on Mr Green’s elections.

Before the Board’s decision Mr Green worked in Alice Springs. Mr Green has not given or tendered any evidence that he was bullied or harassed during this period or that his workplace was unsafe or unhealthy at Alice Springs. What he has asserted is it was unsafe to return to Tennant Creek during this time.

By 12 April 2018, 2 months after the Board’s decision, the Plaintiff had determined it would be unsafe to return to Tennant Creek and notified the Defendant of this fact and that he would not be returning to Tennant Creek. There is no evidence that the Plaintiff had elected to return to Tennant Creek before that date. I find Mr Green had lost confidence in the Defendant and indicated it was his view that the Defendant would not make Tennant Creek safe for him regardless of any action or inaction of the Defendant and thus he elected not to return.

I find the Defendant had determined to address some of the Board’s directions and this is evidenced in the CFO’s email to Mr Green of 16 April 2018 and the letter of 30 July 2018, Exhibit P26. I am unable to assess what other measures were being implemented or not at Tennant Creek as there is an absence of evidence to this effect. A statement that Mr Green’s election was not considered before his letter of 16 April 2022 is not sufficient evidence for me to conclude that the workplace at Tennant Creek was unsafe for him to return to. I have no evidence before me about where OIC Ferguson was at that time, who was at the Fire-station, how long it would have taken for any return to work to be processed and what steps would have been implemented once an election was made. Whilst this court cannot speculate, the absence of evidence about the state of affairs is

relevant. Mr Green’s perception is not a sufficient basis for this court to make a finding as sought by the Plaintiff. I find that Mr Green’s election on the basis he claims is not made out.

There is insufficient evidence for me to conclude that OIC Ferguson’s conduct alone constituted bullying and harassment. Significantly the Plaintiff relies on the combination of OIC Ferguson’s conduct; his superiors conduct and the Defendant’s institution and conduct of the disciplinary proceedings to make out his claim. For the reasons already given I find that the claim has not been made out.

Loss and damage

The Plaintiff claims damages for the breach of Employment Contract. He contends that he has suffered economic loss. Mr Green also claims special damages for economic loss, based upon the premature end of his promotion in Tennant Creek, his compulsory uplift to Alice Springs, his removal expenses and out of pocket expenses in relocating his family to Adelaide not Alice Springs. He also claims the salary difference from the forced relocation.

I do not accept Mr Green’s claim for damages as I find he has not established the Defendant breached his contract of employment and that Mr Green suffered economic loss as a result. Mr Green’s earning capacity was approximately the same at Alice Springs as in Tennant Creek and he was promoted. It increased slightly and in 2020 he sensibly chose to resign his post and relocate to QLD. He has mitigated his loss and is gainfully employed at a higher salary.

I do not accept that Mr Green employment prospects or long term promotional prospects have been adversely affected. He gained work as a Fire-fighter and then in another position. He is now earning more than he would have in that position.

If I had found breach of contract I would only have awarded nominal damages for any breach in any event. However, I will not award any amount for economic loss as no breach of contract has been proven.

I will hear the parties as to costs.