Hill
[2023] FWC 2394
•20 SEPTEMBER 2023
| [2023] FWC 2394 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Hill
(AB2021/203)
| COMMISSIONER MCKINNON | SYDNEY, 20 SEPTEMBER 2023 |
Application for an order to stop bullying at work
This decision is about change, and resistance to change, in the context of a transfer of power. It is about whether the poorly handled implementation of change resulted in bullying at work of the person most affected.
For approximately 34 years, Mr Andrew Hill has provided tennis coaching services at the St Anthony’s Tennis Club (the Club) in Marsfield, Sydney. The services are delivered through Mr Hill’s company, AJH Leisure Pty Ltd (AJH). For approximately 8 years, AJH was also the Club’s Tennis Court Administrator. Its contract for services was unlawfully terminated by the Club[1] with effect from 28 September 2020. Despite this, AJH continues to provide tennis coaching services for its clients at the Club’s premises and has a preferential arrangement for the hire of Club courts for this purpose.
On 13 April 2021, Mr Hill applied for orders to stop bullying at work under s.789FC of the Fair Work Act 2009 (the Act), including in his capacity as an employee of AJH, a constitutionally‑covered business for the purposes of Part 6‑4B of the Act.[2] The application was made in relation to members of the Club’s management committee (the Committee). Alternative dispute resolution failed to resolve the matter, and it was subsequently adjourned pending the outcome of related Federal Circuit and Family Court proceedings. Judgment in those proceeding was delivered on 25 January 2023[3] and (in relation to penalty only) on 12 April 2023[4].
The question now is whether Mr Hill has been bullied at work. The question arises in the context of changes in the composition of the Committee from 2018 and the gradual deterioration of its relationship with AJH (and Mr Hill) after that time. For the reasons that follow, I am not satisfied that Mr Hill has been bullied at work as alleged. If it were necessary to decide, I would also not have been satisfied of the risk that Mr Hill will continue to be bullied at work. The application will be dismissed.
The alleged bullying at work
A worker is “bullied at work” if a person or group of individuals 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 that is carried out in a reasonable manner.
If the Commission is satisfied that a worker has been bullied at work, and there is a continuing risk that they will be bullied at work, orders can be made to stop the bullying behaviour. The scope of the discretion to make orders of this kind is broad although it does not extend to the making of orders for the payment of money.
Mr Hill alleges that he has been bullied at work by Mr Bennett Tesara, Mr Sid Souksavath, Mr Simon Ong, Mr Boun Lui, Mr Jeremy Tan and Mr Leo Zhao. Each of these individuals was a member of the Committee at the time it is alleged that they engaged in bullying at work.
The alleged bullying behaviour is described by Mr Hill as aggressive or intimidating conduct (meeting outbursts, public rants and verbal abuse), belittling or humiliating comments (unsubstantiated accusations in meetings), spreading malicious rumours (defamation of character in words, posters and emails), unreasonable work expectations (restricting communication and withholding information, making changes to the work environment, including the courts, locked gates and turning off court lighting), and approaching other AJH staff with offers in their workplace suggesting they go somewhere else to work.
Specifically, it is alleged that:
In relation to Mr Tesara (Club President):
1. Mr Tesara was aggressive immediately in the new role toward Mr Hill and his coaches.
2. With Mr Souksavath, Mr Tesara walked onto court and aggressively approached a subcontractor to AJH while he was taking a lesson, asking them to leave the court and talk to Mr Hill.
3. In September 2020, Mr Tesara approached AJH coaches and suggested they go to other centres or work directly through the Club rather than through AJH.
In relation to Mr Souksavath (Club Treasurer):
4. In August 2019, Mr Souksavath withheld payment of AJH’s invoice – conduct said to have been repeated in July 2020 and August 2020 despite a Committee resolution in 2019 to “pay on time from now on”.
5. In June 2020, Mr Souksavath sent an email to court users defaming Mr Hill and suggesting an investigation. The email was subsequently rescinded as a system “error”.
6. Mr Souksavath verbally abused Mr Hill in meetings over grants, LED lights and online booking systems.
7. With Mr Tesara, Mr Souksavath walked onto court and aggressively approached a subcontractor to AJH while he was taking a lesson, asking them to leave the court and talk to Mr Hill.
8. In March 2021, Mr Souksavath created and posted a laminated poster on the clubhouse wall showing the Club’s erroneous financial position.
9. On 29 March 2021, Mr Souksavath approached AJH coaches and told them that table tennis was illegal, that Mr Hill was not in charge anymore, and that they did not have insurance.
10. On 11 April 2021, Mr Souksavath approached AJH’s table tennis coaches and told them not to coach because Mr Hill was not in charge anymore.
In relation to Mr Ong (Committee member):
11. In April 2020, Mr Ong verbally abused him in Chinese while he was the COVID Marshall at the courts.
In relation to Mr Lui and Mr Tan (Committee members):
12. In June 2020, the new Committee reinforced Mr Souksavath’s actions and misconduct and changed the conditions of AJH’s agreement with the Club. It coerced Mr Hill to accept the doubling of its rent, paying in advance for courts, denying refunds for wet days when courts were not used, and overcharging for electricity. Mr Lui and Mr Tan participated in mobbing and colluding to cover up Mr Souksavath’s misconduct.
In relation to Mr Zhao (Committee member):
13. In October 2020, Mr Zhao became angry and made a verbal threat to Mr Hill when he was asked if he had booked the court.
In relation to person(s) unknown (Committee member(s)):
14. Table tennis tables belonging to AJH were damaged in the clubhouse and their wheels and legs were broken.
Mr Hill says these events caused a risk to his physical and emotional health. He describes having increased blood pressure, tightness and headaches, and frustration at the lack of communication over the issues in dispute. No medical evidence was filed in the case. Mr Hill also submits that the Club is trying to force his business out through coercion, by changing his business and disrupting his coaching team.
The relief sought by Mr Hill is transparency about decisions made by the Club that affected AJH; a restoration of the former contract for Tennis Court Administrator between AJH and the Club; refunds; and a negotiated reasonable court hire fee rate. Mr Hill separately seeks that the Club not enter his worksite. The immediate difficulty with this aspect of his claim is that the worksite is one and the same as the Club’s premises.
It is not necessary to deal finally with the relief sought by Mr Hill. I would however observe that the Commission’s jurisdiction to stop bullying at work does not extend to the resolution of commercial disputes between corporate entities. The provisions of Part 6-4B of the Act are directed to the prevention of bullying of “workers” as defined in s.7 of the Work Health and Safety Act 2011 (Cth). While the scope of orders the Commission can make is broad, any such orders must be directed at stopping and/or preventing the bullying of a worker while they are at work. A company is not a worker for the purposes of Part 6-4B and it cannot be “bullied at work”. To the extent that the meaning of “worker” includes a person who conducts a business or undertaking, the relevant person must be an individual carrying out work in that business or undertaking, rather than the business or undertaking itself.
Relevant history
As Tennis Court Administrator, AJH was responsible for the Club’s court bookings, including collection of monies from hirers of the courts. Bookings were recorded in a spreadsheet on Mr Hill’s computer and monies received were kept in a bag in a drawer until the end of each month, when they were banked. It appears that until 2018, it was Mr Hill’s practice to deduct AJH’s fees from the monies received before banking the remainder into the Club’s account. The arrangement is described in an email from former Club Treasurer, Mr John Peacock, to Mr Hill - advising of the Club’s preference for Mr Hill to submit a monthly invoice covering his services and (court) expenses, which could coincide with his monthly deposit. At some point, the arrangement changed so that AJH’s management fee was paid first, and AJH then used that money to pay for its term fees.
In 2018, Mr Souksavath was appointed as Club Treasurer and took over the Club’s accounts. He started looking into the Club’s financial position. He formed the view that there was a lack of proper records, particularly in relation to income earned. Mr Souksavath asked Mr Hill to provide him with the booking and payment records so that he could reconcile the accounts. Mr Hill gave him access to the records that he kept, in the form of ‘yellow sheets’ and ‘green sheets’. Mr Souksavath was unable to reconcile the accounts and became concerned that the Club was losing approximately $9,600 each year.
Mr Souksavath’s efforts to address the Club’s finances set off some grumbling among members of the Club, including those previously responsible for the Club’s administration. In April 2019, Mr Hill received an email from former Club Secretary, Mr Peter Bach, advising him to give less information to Mr Souksavath, criticising his attempt to verify the records and apologising to Mr Hill for his “being targeted”. A later email from Mr Peacock described Mr Souksavath’s attempts to understand the records kept by Mr Hill in disparaging terms.
In the background, Mr Hill had been working with a start-up online booking system known as “VenuLocker”. VenuLocker offered AJH free use of its booking system for 6 months in return for its patronage. From 15 April 2019, Mr Hill agreed with VenuLocker that AJH would use its platform as the primary booking system for tennis coaching and court hire at the Club. Monies received would be transferred to Mr Hill’s account at the end of every month. At some point after this, AJH added a VenuLocker link on its webpage for use with its bookings.
In September 2019, Mr Souksavath did not pay AJH’s monthly management fee for August 2019. He made the decision because he wanted to receive payment from AJH for its Term 2 court hire fees first. This upset Mr Hill, who raised his concern with the Committee and explained that the Club had always paid AJH first, with this money then applied toward the term fees. At a meeting on 15 September 2019, the Committee resolved for the Club “to pay on time from now on”.
In or about October 2019, Mr Souksavath proposed the implementation of an online booking system for tennis court hire. The proposal was met with resistance from Mr Hill and Mr Peacock among others. Mr Peacock was sceptical of the benefits of change and concerned about the cost implications. Mr Souksavath responded to the effect that change was needed for income transparency and improved cash flow, and consistent with what other tennis clubs were doing. He assured Mr Peacock that the Club’s finances were his first priority.
Mr Souksavath identified 3 suppliers for a proposed online booking system, including VenuLocker. He asked Mr Hill to arrange for VenuLocker to answer some questions to help the Committee compare options. Mr Hill provided responses to Mr Souksavath’s questions and they met to discuss the matter, including whether an online booking system was the right way forward.
Mr Hill subsequently circulated his minutes of the meeting. Mr Souksavath responded, expressing concerns about what appeared to be a close relationship between Mr Hill and VenuLocker. He questioned whether VenuLocker’s software was fully developed and secure. He asked Mr Hill for contact details so that he could arrange for a meeting with VenuLocker’s team. Mr Hill did not provide the requested contact information to Mr Souksavath.
On 19 January 2020, the Committee voted to adopt an online booking system (but not VenuLocker). One consequence of this decision was that Mr Hill would no longer have a role in the management of court hire bookings or collection of monies for the Club. The decision was opposed by Mr Hill.
In February 2020, Mr Hill reached out to the Club’s Public Officer, Mr Greg Nell, about how meetings of the Committee were “turning negative” and about how he should deal with the Committee and its waning support for him. He sought information about whether the Club had an “anti-bully policy” or grievance procedure. There is no evidence of Mr Nell’s response.
On 22 March 2020, the NSW Government announced the closure of non-essential services in response to the COVID-19 pandemic. Mr Hill emailed AJH’s coaches, players and parents to advise that its sports coaching operations would be paused until further notice. He advised that the Club’s courts would remain open for social tennis and table tennis, and that court hire could be booked through VenuLocker on the AJH webpage.
On 24 March 2020, Mr Hill communicated AJH’s pandemic-related arrangements with the Committee. Mr Tesara responded on 25 March 2020 confirming that the courts remained open for hire. When Mr Hill responded by stating that “All permanents, casuals and club can book online on venulocker.com.”, Mr Tesara wrote to Mr Hill again. He asked Mr Hill to respect the decision of the Committee not to use VenuLocker and to stop using it for Club bookings immediately.
On 27 March 2020, the Club (with Mr Hill) decided to cease all activities at the tennis courts for reasons related to the pandemic.
On 31 March 2020, Mr Peacock wrote to the Committee suggesting that the Club should not proceed with its new online booking system while the courts were closed and it had no revenue. Mr Tesara responded to the effect that the online booking system project would be suspended and would resume once tennis courts were able to open again. He advised that the management fee paid to AJH was another major cost to the Club and suggested that it be reviewed while the courts were closed.
On 26 April 2020, the Committee met. On the agenda was a “Resolution to terminate the service of AJH Leisure Pty Ltd effective 01 May 2020”. A separate ‘no confidence’ motion was proposed in connection with closure of the tennis courts due to the pandemic. When the Club agreed to revise its position on closure of the courts, the ‘no-confidence’ motion did not proceed. Rather than terminate the services of AJH, the Committee resolved to investigate the future roles and responsibilities of the Court Manager.
On 10 May 2020, Mr Hill reported being “verbally abused” in Chinese by Mr Ong while acting as COVID Marshall and arranging for a changeover on Court 2. Mr Hill reported the use of a “highly aggressive” tone by Mr Ong, saying that a 10-year‑old girl next to him had translated the alleged verbal abuse, which was also witnessed by her father.
On a date that is not apparent, but likely before 31 May 2020, the Club established an “online transition team” to manage the transition to the online booking system. The team was comprised of Mr Souksavath, Mr Lui and a Mr Chan Souksavath.
On or about 31 May 2020, Mr Hill was notified in writing of changes to AJH’s role for the Club. The changes were mostly about use of the new online booking system. They included a request for Mr Hill to confirm existing permanent bookings so their times could be blocked in the new system by 9 June 2020. Whether Mr Hill complied with the request is not apparent.
On 6 and 9 June 2020 respectively, Mr Hill applied to the Commission to deal with a general protections dispute and for orders to stop bullying at work. The application for orders to stop bullying at work coincided with the launch of the new online booking system. The alleged bullying at work covers much of the same ground that is the subject of this application, but involved only 4 members of the Committee.
On 1 July 2020, the Club changed the way it invoiced AJH from ‘per term’ to ‘monthly’. Mr Hill alleges that Mr Souksavath withheld payment of AJH’s invoices in July 2020 and August 2020. While the evidence does not establish what occurred, it appears to have been connected in some way to this billing system change.
On 19 July 2020, the Club held its Annual General Meeting. Mr Lui, Mr Ong, Mr Tan and Mr Zhao were elected together with Mr Tesara as President and Mr Nhu Vo as Secretary. Three supporters of Mr Hill: Mr Peacock, Mr Bach and Mr John Grass, nominated for election but were unsuccessful.
On 9 August 2020, the Committee met to discuss AJH’s role. It resolved to terminate AJH’s services subject to legal advice, and to increase the court hire rate for AJH from the start of the next school term on a “pay before you play” basis, with no refund on wet weather and no cancellations. It also resolved to authorise receivables from and payable to AJH to be offset when settling monies.
On 30 August 2020, the contract for services between AJH and the Club was terminated in contravention of s.340(1) of the Act (general protections) in connection with Mr Hill’s exercise of a workplace right (the filing of his applications in the Commission).[6]
On 1 September 2020, the Club notified Mr Hill of changes to court hire arrangements, including increases in the hourly court hire fee, bringing forward the use of tennis court lights from 8.00pm to 5.00pm, no refunds for wet weather, no access to the clubhouse and a requirement to prepay at the start of term for the term’s hire. Mr Hill was not happy about the changes but continued to hire the courts for AJH’s use.
On 13 September 2020, the Committee resolved to require AJH to book court hire on a “pay before you play” basis at coach rates from 26 September 2020. It separately resolved that coaches would be disqualified from the role of tennis court supervisor “as a learning from previous arrangement”.
On 28 September 2020, AJH’s contract for the role of Tennis Court Administrator came to an end.
In early October 2020, Mr Zhao was playing tennis. Mr Hill saw him and said, in words to the effect, “You need to book – it’s called pay before you play, how about you do it while I’m here”. Mr Zhao responded, in words to the effect “You’re not in charge anymore, I don’t have to talk to you any more on that.” Mr Hill replied, in words to the effect “You may not have to, but I know that the people in charge would love to know you haven’t booked the court.” This made Mr Zhao angry. He approached Mr Hill who was on the other side of the tennis court fence and said that he did “kung fu”. Mr Hill replied, in words to the effect “That’s not necessary” and walked away toward his car. As he did, Mr Zhao walked in his direction. Mr Hill put his hand up and said, “Please stop”. Mr Zhao walked back and stayed away from Mr Hill.
On 23 November 2020, the Committee sent an email to Mr Hill asking him to remove his table tennis tables and equipment from the storage room inside the hall. Mr Hill did not action the request. Instead, in or about December 2020, he wrote to Mr Nell enquiring about whether the Committee was validly elected at the 2020 Annual General Meeting, and hence whether its decisions since that time were valid.
On a date unknown, Mr Hill’s table tennis tables were removed from the Clubhouse. Mr Hill alleges that the tables were broken in this process. There is no evidence to identify the person(s) who removed the tennis tables or even when or whether they were broken at the time they were removed. Mr Hill says only a member of the Committee could have been responsible in each case, but the state of the evidence does not permit such an inference. Mr Hill also says he made a police report about the matter and that the matter has not progressed.
On 26 April 2021, the Clubhouse was locked and no longer accessible to Mr Hill. Mr Hill sought immediate access for AJH’s use. On 19 May 2021, Mr Hill renewed his request for “instant access” to the Clubhouse for every time AJH hired the courts, so that it could be used for wet weather programs for kids, special needs, adults and the elderly. The Club responded to the effect that this blanket request for access was unreasonable and more information was required about its specific usage needs as well as AJH’s COVID-safe plans. The matter was brought to the attention of the Commission and a conference was held in relation to the matter on 26 May 2021.
In the meantime, on 17 May 2021, Marsh Sport (the Club’s insurer) confirmed that the Club did not have insurance coverage for table tennis under the Tennis Australia National Insurance Program and that it would not be covered for any injuries to members or negligence claims resulting from table tennis. Mr Hill asserts that AJH has its own insurance coverage for table tennis activities. There is no evidence to confirm or refute the assertion.
Has Mr Hill been bullied at work…
By Mr Souksavath?
The temporary withholding of payment to AJH for its management fees in August 2019 is not conduct capable of being characterised as bullying at work in relation to Mr Hill. It was action taken in the context of a commercial arrangement between the Club and AJH, and on the basis that AJH’s Term fees were 5 weeks late. It was behaviour toward AJH, rather than toward Mr Hill while he was at work, and I am not satisfied that it created any risk to health and safety.
The alleged email sent by Mr Souksavath in June 2020 to court users “defaming Mr Hill and suggesting an investigation” is not in evidence. It is not in dispute is that an email was sent and subsequently rescinded as a system “error”. Without knowing the content of the email, I cannot be satisfied that its contents were unreasonable or directed at Mr Hill.
The evidence does not establish that Mr Souksavath verbally abused Mr Hill in meetings over grants, LED lights and online booking systems. I am satisfied that there were different views expressed in Committee meetings about each of these matters, particularly in relation to the introduction of a new online booking system. The change of leadership caused a fracture in the relationship between past and present Committee members, with Mr Hill firmly in the ‘past’ Committee members’ camp. Members had varying views about the quality of decisions made by others, and some found this upsetting or even offensive. However, the state of the evidence is such that I cannot know what was said in these meetings that is alleged to have been verbal abuse. As a result, the allegation remains a mere assertion.
I have already noted that Mr Hill did not support changes proposed by Mr Souksavath, including to the online booking system. He had already made arrangements for AJH to use an alternative booking system and had a conflict of interest in relation to the matter. He was also reacting to the circumstance that AJH’s performance in handling court bookings, and keeping proper records, was in question. He found the Committee’s new direction, and its associated requests and lack of support, confronting. He resisted or did not action requests he did not agree with. I am satisfied that Mr Souksavath sometimes responded angrily to Mr Hill’s conduct in this regard and that he apologised when Mr Hill took issue with his tone.
This conduct on the part of Mr Souksavath was not bullying at work. It was not repeated unreasonable behaviour toward Mr Hill that created a risk to his health and safety, either in relation to the grants, the LED lights or the online booking system. The pair had obvious disagreements about the preferable course of action for the Committee to take. It was not unreasonable for Mr Souksavath to express his frustration with the resistance he was encountering from Mr Hill. When he apologised as soon as Mr Hill expressed concern about his tone, Mr Hill accepted his apologies.
Ultimately, both Mr Souksavath and Mr Hill could have handled their disagreements in a more respectful and professional manner. But that is all they were – disagreements about business decisions the Committee was entitled to make. While Mr Hill’s input was sought on behalf of AJH, it was not his role or responsibility to seek to challenge those decisions once made.
The allegation that with Mr Tesara, Mr Souksavath “walked onto court and aggressively approached a subcontractor to AJH while he was taking a lesson, asking them to leave the court and talk to Mr Hill”, is not established. The evidence is hearsay and does not establish what happened, or when, or in what circumstances. At its highest, it tends to confirm the deteriorating relationship between AJH and the Club.
I am not satisfied that Mr Souksavath engaged in bullying at work when in March 2021, he created and posted a laminated poster on the clubhouse wall showing the Club’s erroneous financial position. The alleged error relates to the correlation between income received and the period over which it was received, with the associated claim that an increase in income could be attributed to the introduction of the new online booking system. The poster itself is not in evidence. Mr Souksavath accepts that he displayed a document in the Clubhouse showing the financial position of the Club. He believed the information contained in the document to be correct. When he became aware that the document was of concern to Mr Hill, he removed it from display. It was part of the broader disagreement over introduction of the online booking system.
There is limited evidence in relation to whether on 29 March 2021, Mr Souksavath approached AJH coaches and told them that “table tennis was illegal, that Mr Hill was not in charge anymore, and that they did not have insurance”. It may be that there was an exchange of this kind, related to the dispute about AJH’s conduct of table tennis activities in the Clubhouse, although it was not until 17 May 2021 that the Club’s insurer confirmed the lack of insurance coverage for this type of activity. On the state of the evidence, I do not know what occurred or when. I am accordingly not satisfied that the alleged conduct was bullying at work toward Mr Hill. The same concern arises in relation to the allegation that on 11 April 2021, Mr Souksavath approached AJH’s table tennis coaches and told them not to coach because Mr Hill was not in charge anymore.
For these reasons, I am not satisfied on the evidence that Mr Hill has been bullied at work by Mr Souksavath.
By Mr Tesara?
I am not satisfied on the evidence that Mr Tesara was aggressive toward Mr Hill and other coaches employed or engaged by AJH. Mr Hill gave evidence that Mr Tesara had not been abusive, had not insulted or belittled him, and had not used offensive language toward him. He had not played any practical jokes on Mr Hill, or pressured him to behave inappropriately, or placed any unreasonable work demands upon him. Comments attributed to Mr Tesara in the minutes of Committee meetings about the state of the Club’s finances did not paint Mr Hill in a positive light, and he sided with Mr Souksavath rather than Mr Hill when there were disagreements. There is no evidence of any record in the minutes of Committee meetings that Mr Hill had been bullied. Further, the request for such a record appears to have been made after a meeting of the Committee, rather than in the meeting. If so, there would be no reason to record it in the minutes. In any event, the matter of whether Mr Hill had been bullied was in dispute.
As to the allegation that Mr Tesara walked onto court with Mr Souksavath and aggressively approached a subcontractor to AJH while he was taking a lesson, asking them to leave the court and talk to Mr Hill, the evidence is hearsay and not sufficiently probative for a finding to be made about what happened, or when, or in what circumstances. The same can be said about the allegation that in September 2020, Mr Tesara approached AJH coaches and suggested they go to other centres or work directly through the Club rather than through AJH. As before, the allegations tend only to confirm the deteriorating relationship between AJH and the Club.
For these reasons, I am not satisfied that Mr Hill has been bullied at work by Mr Tesara.
By Mr Ong?
In April 2020, Mr Hill says that Mr Ong verbally abused him in Chinese while he was the COVID Marshall at the courts. The allegation is not established. Mr Hill does not know what Mr Ong said on the day in question. The 10-year-old girl did not tell him. She communicated to him that Mr Ong had said some “bad things” or “sworn” in response to his request for players to come off the courts so that new people could come on. All that is established is that Mr Ong lost his temper. To the extent that the incident occurred as alleged, it was a single emotional outburst. It was not repeated unreasonable behaviour by Mr Ong toward Mr Hill.
I am not satisfied that Mr Hill has been bullied at work by Mr Ong.
By Mr Lui and Mr Tan?
In June 2020, Mr Hill submits that the new Committee reinforced Mr Souksavath’s actions and misconduct, changed the conditions of AJH’s agreement with the Club and coerced him to accept the doubling of his rent, paying in advance for courts, denying refunds for wet days when courts were not used, and overcharging for electricity. He alleges that Mr Lui and Mr Tan participated in mobbing and colluding to cover up Mr Souksavath’s misconduct.
It is not clear what Mr Hill means by the term “mobbing”, which in the Macquarie Dictionary, is defined to mean “to crowd around tumultuously”, or “to surround and attack with riotous violence”. There is certainly no evidence of conduct of that kind in the case. If the word “mobbing” is used in the sense of bullying by a group, rather than by an individual, it is simply a substitute for the word “bullying”, such that the allegation is one and the same with the allegation that Mr Hill was bullied at work. The allegation of “colluding” is a serious one, suggesting some form of fraudulent or secret cooperation by members of the Committee in relation to Mr Hill. There is no evidence of this kind of conduct by any of the named respondents. As best I can ascertain, the Committee made its decisions in the ordinary way, by resolution at scheduled meetings. Mr Hill was regularly invited to participate in those meetings even though he was not a member of the Committee.
In relation to the allegation of coercion, the most that can be said is that changes to the basis upon which AJH hired the Club’s courts were decided upon by the Committee – on what appears to be short notice - without the prior agreement of, or consultation with, AJH. Mr Hill left the Committee meeting while the changes were discussed. When he came back, the decision was communicated, and the increases “negotiated”. The outcome was a significantly cheaper rate for AJH than any other court hirer, and continued preference for AJH for block bookings at times chosen by Mr Hill.
I am not satisfied that Mr Hill was forced to agree to these changes on behalf of AJH, or that he was threatened in relation to accepting them, or that he otherwise had no effective choice but to agree. Mr Hill had opened up another tennis centre in 2020 when the Club was closed due to the pandemic. He had the choice of accepting or not accepting the changes. A choice was made on ordinary commercial terms that were beneficial to AJH in comparison to other court hirers, as well as in comparison to alternative options for court hire in the surrounding areas.
I am satisfied that changes were made to the rates payable by AJH to the Club for court hire following a resolution of the Committee, and that it is likely that Mr Souksavath was involved in the preparation of this resolution in his capacity as Treasurer. The minutes of the meeting of 9 August 2020 do not show how Mr Lui and Mr Tan voted in relation to these changes and there is no other evidence to suggest that Mr Lui and Mr Tan interacted with Mr Hill in a way that could be characterised as bullying. When asked if either had been abusive toward him, or insulting, or belittling, or had used offensive language or made unjustified criticisms, or pressured him to behave inappropriately or excluded him from workplace events, Mr Hill either denied it or did not know. He said that Mr Lui had been “quite nice” and had not behaved aggressively toward him.
For these reasons, I am not satisfied that Mr Lui and Mr Tan have bullied Mr Hill at work.
By Mr Zhao?
The incident in October 2020 involving Mr Hill and Mr Zhao occurred in the context of the ongoing dispute about the online booking system and only shortly after termination of AJH’s contract for the role of Tennis Court Administrator. The incident was provoked by an unhappy Mr Hill, who no longer had access to the online booking system and did not know if Mr Zhao had booked the court or not. He approached Mr Zhao and asked if he had booked the court, suggesting that he had not booked and should be reported.
There was no need for Mr Hill to interact with Mr Zhao in this way, and it is unsurprising that Mr Zhao became angry. I accept that his reference to “kung fu” came across as a verbal threat toward Mr Hill. The situation was resolved shortly afterward, when Mr Hill walked away, asked Mr Zhao to stop, and Mr Zhao stopped. Mr Hill suggests that the same thing occurred a second time, again provoked by Mr Hill. I am not satisfied on the evidence that the same thing happened twice.
Even if there was more than one incident, I would not have been satisfied that they involved repeated unreasonable behaviour by Mr Zhao toward Mr Hill while he was at work for AJH. At the time, Mr Hill was no longer acting as Tennis Court Administrator. He had no role in ensuring that players had booked and/or paid for the courts. Further, at the time of the incident in early October 2020, Mr Hill was walking away from the courts toward his car, suggesting that his activities for the day, whether as player or tennis coach, had come to an end.
Finally, Mr Hill says that Mr Zhao tried to intimidate him by giving him a “1-star rating” on Google. There is no evidence of the rating itself. Without knowing the content or context for what is alleged, I am unable to make any findings of fact in relation to the matter.
For these reasons, I am not satisfied that Mr Hill was bullied at work by Mr Zhao.
By some or all of the named individuals, acting as a group?
The general tenor of Mr Hill’s case is that on and after 2019, members of the Committee acted together toward him in a way that was bullying at work, by starting to pull away from the Club’s longstanding relationship with AJH. I accept that the Committee decided to go in a different direction and that this had consequences for Mr Hill and his business. I also accept that there were times when Mr Hill and individual members of the Committee let their emotions get the better of them and did not behave toward each other in a respectful and professional way. This occurred in the context of a schism between those who supported the new direction and those who resisted, in the context of a transfer of power from one management group, who relied heavily on Mr Hill and AJH to administer the courts, to another group who preferred to assume control over the Club’s bookings and finances and were entitled to do so.
There are lessons to be learned here for the Club. Implementation of change is rarely easy, particularly when the change represents a departure from longstanding practice. There are benefits that can flow from meaningful consultation and adequate notice of change after consideration has been given to concerns raised during the consultation process. Such steps can create the environment for acceptance, and even support, among those affected by the change. When they are absent, the likelihood of conflict grows.
Many of the decisions made by the Committee were for legitimate reasons. One was unlawful, and others were not implemented in a reasonable way. However, I am not satisfied that the Committee’s actions, either as a group or through the actions of its individual members, involved bullying at work toward Mr Hill. It was not repeatedly unreasonable behaviour toward Mr Hill, creating a risk to health and safety. The Committee’s actions were mostly directed at the Club’s commercial arrangements, including with AJH, rather than toward Mr Hill personally. Perhaps acting on the advice of others, Mr Hill decided early on not to cooperate fully with some of the Committee’s requests, and later acted in ways that only served to further the conflict between them.
One final observation. Not all members of the Committee that made decisions affecting AJH over this period were named by Mr Hill as respondents to the application, including in connection with the allegations of ‘mobbing’ and ‘colluding’. Further, there is passing reference in the materials to a link between the Club’s issues in this matter and the NSW Chinese Tennis Association. While it is not a matter about which any findings could be made, including for reasons of procedural fairness and lack of evidence, one possible inference is that race was a contributing factor to the conflict between supporters of Mr Hill and those who sought to take the Club in a different direction. If so, the matter should give pause to everyone involved with a view to ensuring that the Club is an inclusive space for all.
Is there a future risk of bullying at work?
Given my conclusions above, it is not necessary to deal with whether there is a risk that Mr Hill will continue to be bullied at work by the individuals named in his application. Had it been necessary to determine, I would not have been satisfied of the existence of such a risk.
Firstly, Mr Hill no longer sees members of the Committee, except sometimes on Sunday mornings between the time his coaching sessions finish and social Sunday tennis begins. He has instead followed the advice given to him by others about trying to minimise his interactions with Club members. Other than in connection with these proceedings, in the last 3 years, he has:
1. not spoken to Mr Tesara “even once”,
2. had minimal interactions with Mr Souksavath,
3. not spoken to Mr Ong, although he sees him sometimes when he goes to the courts and into the Clubhouse to get his equipment,
4. had cause to interact with Mr Tan once, in the Annual General Meeting, when Mr Hill asked a question about finances that Mr Tan answered.
5. Had one “quite cordial” conversation at the Annual General Meeting with Mr Lui and otherwise, minimal contact with him.
Mr Zhao has since left the Club.
Secondly, the Club has a new court manager, Mr Andy Phelan. Mr Hill can liaise with Mr Phelan about any issues related to the hire of the courts as required. There is no longer any need for him to interact directly with any members of the Committee.
Finally, the Club’s premises have been slated for site redevelopment as a childcare centre by or for the Catholic Church. There is no evidence about the progress of this plan since Committee meeting minutes recorded the need to find somewhere else to play social tennis on Sundays. If the plans have progressed, it may not be long before the option to play tennis at the Club’s premises comes to an end and with it, the prospect of further interaction between the parties.
Conclusion
For the reasons above, I am not satisfied that Mr Hill has been bullied at work by the individuals named in his application.
The application is dismissed.
COMMISSIONER
Appearances:
A Hill on his own behalf.
S Alexander of Alexanders Lawyers on behalf of the respondent.
Hearing details:
2023.
Sydney:
July 6.
Final written submissions:
July 27.
[1] Hill v St Anthony’s Tennis Club (No 2) [2023] FedCFamC2G 29.
[2] Hill [2023] FWC 1042.
[3] [2023] FedCFamC2G 29.
[4] Hill v St Anthony’s Tennis Club (No 2) [2023] FedCFamC2G 269.
[5] Fair Work Act 2009 (Cth), s.789FD.
[6] Hill & Ors v St Anthony’s Tennis Club [2023] FedCFamC2G 29.
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