Hong Liu
[2022] FWC 175
•28 JANUARY 2022
| [2022] FWC 175 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Hong Liu
(AB2021/376)
| COMMISSIONER WILLIAMS | PERTH, 28 JANUARY 2022 |
Application for an FWC order to stop bullying.
This decision concerns an application under section 789FC of the Fair Work Act 2009 (Cth) (the Act) for an order to stop bullying made by Mrs Hong Liu (Mrs Liu or the Applicant).
The Commission convened a conference in August 2021. However, the matter could not be resolved to the Applicant’s satisfaction. Consequently, the matter proceeded to a hearing on 18 October 2021.
Mrs Liu was represented by Mr Graham Outridge (Mr Outridge), her husband.
English is not Mrs Liu’s first language. The Commission was assisted during the hearing by a Mandarin speaking interpreter.
The person named in Mrs Liu’s application, Mr Johannes Homan (Mr Homan) was represented by his union representative Ms Justine Illich of the Shop, Distributive and Allied Employees Association.
Permission was granted for Woolworths Group Limited (Woolworths), the Applicant’s and Mr Homan’s employer, to call evidence and make submissions and they were represented by Mr Rayne Wade of Ashurst Australia.
Mrs Liu gave evidence on her own behalf and also called Mr Joshua Klassek (Mr Klassek), her previous Line Manager to give evidence.
Mr Homan gave evidence on his own behalf.
Evidence for Woolworths was given by Mr Matthew Spiteri (Mr Spiteri), the Operations Manager -Western Australia and Ms Stacey Seymour (Ms Seymour), Group Manager.
Factual findings
In the Applicant’s submission it is explained that she is a 60-year-old Chinese permanent resident who arrived in Australia in 2009 with little understanding of English.
She was first employed at the Woolworths Kalamunda store in November 2014.
The evidence of Ms Seymour is that in February 2020 the Applicant requested a transfer to Woolworths Miami Plaza Supermarket (the Miami Plaza Supermarket) as a fruit and veg Team Member because her family planned to relocate. The transfer was approved however the family relocation did not occur, but the Applicant continued her employment at the Miami Plaza Supermarket.
At the Miami Plaza Supermarket she was working a 25 hour a week permanent part-time role.
She worked Saturday, Sunday and Monday. Due to the revolving roster of her Supervisors, she worked under Mr Homan’s supervision on Saturday and Sunday in one week but only Monday the next week.
The Applicant’s evidence in chief[1] relevantly was that on Sunday shifts she worked with Mr Homan. Trucks arrived around 10:30a.m. each Sunday and they unloaded them. Goods are placed on wooden square pallets and those containing potatoes, sweet potatoes and other fruit and vegetables are very heavy.
Her evidence was that when she drags these pallets from the truck, she feels terrified the heavy pallet will overwhelm her and crush her because the cargo platform of the truck is higher than the store platform.
She says she always has to unload the trucks. Mr Homan will tell her to go back from the shop area to unload the goods through the loudspeaker of the store. She says she is required to unload the truck even if other employees are able to do it.
On Sundays there are usually three workers, herself, Mr Homan and one other young male worker but she says Mr Homan and the other worker are never called to unload the goods.
Her evidence in chief is that when she works with other Managers this is never the case. Usually whoever is behind unloads the goods together.
She says she does not complain about doing any work but some of the pallets are too heavy for her strength and she cannot drag them.
When she was struggling to pull the heavy pallet, she says the truck drivers would help her or young male workers from other Departments would come to help her proactively. She was grateful to them, but Mr Homan did not care.
She says Mr Homan always has a light pallet and sometimes a heavy one but never leaves a light one for her.
She says her physique is not that strong, but she obeys the instructions and tries her best to complete the task.
She says every time she must put down the work she is doing while other employees have nothing to do. She asks herself why this occurs and why she has to be called to do this every time. Her evidence is with other Department Managers it is not like this.
Another heavy task she says is the Department’s replenishment. This is to unload the baskets of fruit and vegetables from the pallets and put them on trolleys and push these to the outside of the customer area and then put the produce on the shelves. A single basket weighs 16 kg.
She says there are 12 to 13 wooden pallets coming in on Mondays and Saturdays. On the shift she works with Mr Homan and his partner Mr White they start at 7:00a.m. and she starts at 9:00 a.m.
When she arrives, she finds all the pallets are still sealed with plastic sheets and none have been opened. She feels extremely depressed then because the workload of three people is waiting for her to complete in a limited time which is unfair.
She says this is different when working with other Managers. With other Managers when she enters the work area the pallets have already been opened and some of the goods loaded so the workload for her does not feel too rushed or too heavy for the rest of her time. She can have some break time.
She says when she is working with Mr Homan and Mr White together, she has to give up her break time and lunchtime to complete the tasks. She worries every day about not being able to complete the tasks for the day and feels uncomfortable, but it almost never happens that she cannot complete the tasks.
She says since working with Mr Homan and Mr White she has observed Mr White’s work has reduced from four trolleys a day in January and March to only two trolleys and then he stopped doing this unloading task.
She says Mr Homan and Mr White share the light work of discounting products or cutting vegetables or counting the amount of products. These are easy and not physically demanding jobs.
The tasks Mr Homan gives her every day is only unloading the goods to the trolleys or unloading the goods to the shelves. She says no-one shares the heavy work with her. Her body feels overwhelmed, and she feels very tired every day, her back begins to ache and her leg and foot tremble.
She also says that after finishing the heavy unloading work she is assigned to clean up the garbage left from the two of them cutting vegetables. Although this work is not heavy, all the work they do not want to do is left to her and she feels uncomfortable.
Mr Homan never sees her work hard pushing trolleys and never helps to share the work. He does not care if she has a break or has eaten her lunch. He does not remind her that she has not taken a break.
She usually forgets about breaks because of being too busy. Other Team Leaders always remind her to take a break.
On Saturday, 20 March 2021 she felt unwell around 3:00p.m. and asked Mr Homan if she could take her lunch break. He gave her an angry face. Although he did not refuse, a few minutes later he asked her if she had enjoyed her lunch break. She said he seemed to want to stop her from going to her lunch break.
She looked at Mr Homan with pleading eyes hoping to get his help to share some of the work, but she says he uses his contemptuous gaze and makes her feel inferior to him. She feels humiliated and that it is unfair. She reported this to Ms Seymour as it was important to her feelings.
Twice after finishing loading trolleys, she went to the back Department work area to reload a trolley. There she saw Mr Homan and Mr White chatting and laughing. When she walked by Mr Homan sang and danced. She continued her work pushing the trolleys to load the goods and she felt very tired so walked by. She says they did not ask her about her job and she felt greatly humiliated to work in front of them like a slave. She reported this to her superiors but the response she got was just “Oh Hong you are not low class”.
In February and March 2021, she says she works hard every day to complete all of her work so there are not leftover goods piled on the storage area which causes trouble for the next day’s work. Even though she does all this hard work one day Mr Homan pointed at her with his finger and said she has to do her work faster. She asked him what he meant, and he replied, “You all of you”. At that moment, he pointed at her and said this.
She felt greatly humiliated and angry and did not understand because she had done her best and he did not care about her situation at all.
She asked to do counting and vegetable cutting work because she thinks she can do it faster and it would reduce some of her fatigue, but she says Mr Homan never answered and never gave her these job opportunities. She says sometimes she can do vegetable cutting work but just for products that customers request to purchase.
Regarding her health, she says her will is strong, but her body is not. Her health has declined with tingling in the back and left leg when lifting heavy objects and bending over and at the end of a day’s work.
In addition, she says because she hardly drinks water during the whole day, to reduce toilet breaks, she started to have headaches.
She asked other Managers for help, but they said they cannot fix this.
The Applicant has submitted a report from Capital Radiology WA dated 17 August 2021 regarding a CT scan of her lumbar spine.
The Applicant agreed that Mr Homan did not tell her not to take her break. He did not say she was not allowed to take her breaks.
The Applicant agreed that she may not ever be able to return to work because of her health.
The Applicant agreed that Woolworths, through Mr Spiteri and Ms Seymour, had made offers for her to relocate to other stores as a way of resolving her problems with Mr Homan. She was willing to relocate but will not agree to do this until her bullying complaint has been dealt with satisfactorily.
Under cross-examination the Applicant confirmed that she does not work on the registers and is not willing to do so.
The Applicant explained that when she worked at Kalamunda she did work on the registers at checkout a few times. However, on one occasion a customer could not understand her and was unhappy. Consequently, the Applicant asked the Manager at Kalamunda that she not work on registers again and this was agreed.
When she moved to the Miami Plaza Supermarket she told the Store Manager, Ms Lynn Taylor (Ms Taylor), what had occurred at Kalamunda and Ms Taylor then told the Department Manager that the Applicant does not need to do registers work.
When asked whether she had ever asked Mr Homan if she could work on registers, the Applicant failed to answer the question.
The Applicant explained that she was not forced to work beyond her rostered hours nor forced not to take breaks by Mr Homan, but she did these things because she had too much work to do. Similarly on occasions she did not drink water because she says she had too much work to do.
The Applicant agreed that the work of unloading the trucks was work all the Managers, not just Mr Homan, required her to do. However, she says the other Managers were more appreciative or grateful than Mr Homan of her doing this work.
She says that whilst unloading the pallets was part of her job, she objects to the fact that Mr Homan did not ask other staff to do this, he only asked her. He could have used other staff she says.
In re-examination the Applicant explained that Managers other than Mr Hohman gave her less heavy duties than unloading the trucks and replenishing, and more tasks that were lighter work.
Mr Homan’s evidence in chief is that he is the Assistant Manager of the Fruit and Vegetable Department of the Miami Plaza Supermarket.
He first worked for Woolworths in 2009. In 2012 he was offered a full-time position as an Assistant Department Manager of the Fruit and Vegetable Department.
From then until 2017 he worked across both the Service and Produce Departments as an Assistant Manager.
Around 2019 he worked as a Service Manager and managed a team of 64 staff. He worked in this role for under two years.
Around September 2020 having worked across both the Service and the Fruit and Vegetable Departments he chose to return to his original role as Assistant Manager within the Fruit and Vegetable Department only.
In this position he is supported in his development by both the Department Manager and the Store Manager.
Initially Mr Homan and Mrs Liu worked under the direction of Ms Karen Read (Ms Read) the Department Manager. Shortly after Christmas 2020 she moved to another Department and in January 2021 Ms Sherryn Gamble became the new Department Manager as part of her three-month secondment within the store.
Different Department Managers direct Department workers to perform their role a little differently. This might include doing certain tasks earlier or later in the day.
Mr Homan says he has never received any significance performance management nor any discipline for misconduct or poor performance.
Usually Saturdays and Sundays are the busiest days. Because of the increase in customers, workers in the Fruit and Vegetable Department are, on these days, regularly diverted to work on Priority 1 calls, which is to assist service staff process sales and customers at the registers, to ease excessively long queues.
In the past he has asked the Applicant if she would like to be trained to respond to Priority 1 calls on registers and she has told him she refuses to be trained on registers, because she is worried she cannot communicate as well as others and prefers to work on replenishment activities. He says he has assured her that her English language is fine, but she refuses to work on the register. The Applicant’s preference was also communicated to him by Ms Taylor and Ms Read.
Mr Homan says that Sunday truck deliveries tend to run a little later. When a delivery is made the back dock worker will empty the truck and bring the pallets halfway between the back dock and the fruit and vegetable fridge. The Fruit and Vegetable Department is then responsible for receiving the pallets, splitting and storing them as required.
Sometimes the back dock worker is not there and when this happens Mr Homan says he goes and empties the truck. Sometimes he would do it alone or if it’s busy will ask someone to assist him to speed up the process. He says he never directs staff to empty the truck without him.
On a Sunday he usually works from 9:00a.m. to 6:00p.m. and Ms Liu when she was working with him in that Department would be rostered from 9:00a.m. to 5:00p.m.
Generally, on Sundays he works with one other team member until 11:00a.m.
Consequently, if he needs help on a Sunday because the truck has delivered later the Applicant is the only other work available to assist him and he will call her to help him.
His evidence is he is not permitted to direct other workers from different Departments to do work for his Department. At 11:00a.m. on Sundays another Fruit and Vegetable Department worker is generally rostered to begin work.
If the truck was very late and arrived after 11:00a.m. on a Sunday, he would ask the other Fruit and Vegetable Department worker to assist him.
When a truck comes to deliver produce splitting the pallet for correct storage and/or preparation is important and Fruit and Vegetable Department workers are expected to split the pallets and get stock onto the floor or into the fridges when pallets are delivered as soon as possible.
His evidence is that there are some tasks that can only be undertaken by Managers. One of these is Multiple Location Counts (MLC), which must be completed each day and he would typically perform these as a Manager between 3:00p.m. and 5:00p.m. These and other managerial tasks are on occasion delegated to another trained Team Member to complete when both the Department Manager and Mr Homan are not available. A trained Team Member is directed to complete these activities by the Department Manager or the Store Manager. Mr White who is Mr Homan’s spouse and a former Team Member of his Department was trained to complete these duties at Ms Read’s discretion.
His evidence was that from time to time when he asked the Applicant to do particular tasks and she would say words to the effect of “I have more important work to do, and I don’t have time to help you” or when he asked her to take a trolley which had priority stock she would refuse to comply and stop what she was doing and say words to the effect of “No no no, I know what needs to go out and I’ll take them out. I am not taking these trolleys out.”
Although he considered her ignoring his directions inappropriate and unprofessional, he recognised that she always worked to a high standard within the Department.
He had raised his concerns about her refusal to follow directions with both Ms Read and Ms Campbell.
Ms Read had told him that the Applicant would do the same thing to her, that is ignore her directions, and she told him that she had spoken to the Applicant on a least one occasion to follow directions from supervisors and management.
His evidence was that the Applicant consistently works hard to meet and exceed Department standards, but she prefers to work independently and autonomously and struggles to take direction as part of a team.
His evidence was that he has not worked with the Applicant since she lodged her internal complaint against him in March 2021.
In the past the Applicant has complained to him when experienced Team Members left their Department and they had to train new Team Members.
He denies in any way he expected the Applicant to complete all the unfinished work within the Department. His evidence was he never required her or any person in his team to work through their tea breaks or unpaid meal breaks. His evidence was he does not require anyone to work overtime hours unless he received authority from the Department Manager. He has never required the Applicant to work overtime and he tells her to go home when he sees her continuing to work after her finish time.
On occasions when managing the team they have had huddles to discuss the day ahead but no-one is ever individually singled out for demanded increased performance. Rather he has said a few words of encouragement and communicated that they have a “really big day ahead so let’s all give 100% and let each other know if you’re struggling”. I prefer Mr Homan’s evidence on this issue and do not accept that he singled out the Applicant and told her she had to work faster.
His oral evidence was that on Sundays there is no back dock worker. So if a truck arrives before 11:00a.m., which is when other staff are usually rostered to begin, then the Applicant and himself are on most days the only ones there to unload the truck.
All staff use the manual pallet jacks and are trained to use these to unload trucks.
The Applicant has never said to him that she found unloading the trucks unsafe.
His evidence is that when the Applicant first started at the Miami Plaza Supermarket he offered to train her on responding to Priority 1 calls but she said she did not want to do that and preferred to work at replenishment. He confirmed under cross examination that the Applicant had said she did not want to work at the checkouts.
Under cross-examination he agreed, from the rosters, that on some Sundays there was also one other employee rostered on. However, his evidence was that commonly, from 10:00a.m. when the store opened to customers, that person would be occupied responding to Priority 1 calls so not able to help with unloading trucks.
His evidence was that the Applicant had said she only wanted to do replenishment work and whilst he respected this he also at least once a week offered her the opportunity to do cutting.
His evidence was that he had been told by Ms Read that the Applicant did not want to be trained to do MLC work and he asked her himself and she confirmed she did not want to be trained to do this.
He explained it is the Department Manager not himself who decides who does so-called managerial work such as MLC.
He agreed that he would call the Applicant to pull the pallets out of the truck on Sundays using the manual pallet jack but denies he would always give her this task even when there were other staff who could do it.
Under cross-examination he denied he ever told her to work back after the end of her shift. She would sometimes do this voluntarily even after he told her not to.
He agrees that on occasions he and Mr White at the back dock might be singing and dancing while they were working.
He denies that he ever spoke to the Applicant one-on-one and told her that she needed to work harder.
Considering the evidence regarding Priority 1 calls, which is immediately attending to customer demand at the registers, my finding is that the Applicant was quite content for the arrangement that had been made with her manager at the Kalamunda store to continue to apply at the Miami Plaza Supermarket, as it had been. Consequently, unlike other staff the Applicant was not required to make herself available to work on registers in response to a Priority 1 announcement. Self-evidently this was one light task she therefore did not perform.
I find the Applicant did not tell Mr Homan that she was struggling at times to unload the truck, nor did she tell him that she was not coping physically with her workload.
Ms Seymour gave evidence on behalf of Woolworths. She is employed in the position of Group Manager. She is responsible for 11 supermarkets which employ over 1300 team members.
Her evidence is that the Applicant made a complaint about Mr Homan’s behaviour to Ms Taylor in March 2021. She had not made any complaints about him prior to this.
On 6 April 2021 she received a statement from the Applicant raising concerns in relation to Mr Homan’s conduct and separately concerns about how the matter had been dealt with by Ms Taylor.
In responding to the Applicant’s bullying complaint, she interviewed six Woolworths’ employees including the Applicant and Mr Homan.
There was an initial attempt at mediation between Mr Homan and the Applicant undertaken by Ms Taylor, but this unfortunately was not successful.
On 13 April 2020 Woolworths decided that to ensure the Applicant’s well-being, her roster would be changed so she would not be working with Mr Homan.
At this time she was also working hours at Woolworths Mundaring store.
On 24 May 2021 Ms Seymour met with the Applicant and Mr Outridge to explain to them the outcome of the investigation.
That outcome was that three of the four allegations made by the Applicant had not been substantiated due to insufficient evidence but one was. The one substantiated allegation was that Mr Homan’s partner, Mr White, was a direct report to Mr Homan.
Ms Seymour then discussed with the Applicant ways to practically accommodate her concerns notwithstanding the outcome of the investigation.
Alternatives were raised and discussed including the Applicant remaining at the Miami Plaza Supermarket, or transferring to another store in the area, or transferring to another store closer to where she lived or changing her contracted hours so she did not work at the same time as Mr Homan.
None of these alternatives were acceptable to the Applicant.
The Applicant requested a written outcome of the investigation findings which was provided to her on 27 May 2021.
Under cross-examination, Ms Seymour was asked to confirm what was in a record of interview with the previous Manager of Produce Ms Read which formed part of Ms Seymour’s investigation.
Ms Seymour confirmed that Ms Read explained in the interview, amongst other things, that compared to how Ms Read had operated Mr Homan did not pick up the heavy lifting and banana splitting, which was just what he does. Ms Read had explained her view was this was because of poor management skills and was not malicious toward the Applicant, it was with everybody. Mr Read had told Ms Seymour that it’s just Mr Homan’s leadership style.
The record of interview also records Ms Read saying the Applicant was doing a lot of heavy lifting, that she knows the business, that she knows what customers need and she will strive for perfection. Ms Read’s view was that it is in the Applicant, so she would try to load, do trolleys etc. She would push herself to get the shop right and Mr Homan would allow that.[2]
As Ms Seymour reinforced the record of interview simply records Ms Read’s perspective on the issues.
Ms Seymour also confirmed that in her interview with Mr Homan he freely stated that the Applicant is a hard worker.
Mr Spiteri gave evidence on behalf or Woolworths. He is the Operations Manager of Woolworths Western Australia.
After Ms Seymour had concluded her investigations and met with the Applicant to explain her findings Mr Spiteri became involved because it became clear the Applicant was not satisfied with either Ms Taylor’s intervention or the outcome of Ms Seymour’s investigation and they felt it was necessary to meet the Applicant in a further attempt to address her concerns.
Consequently, he met with the Applicant and Mr Outridge on 2 June 2021.
The Applicant made it very clear she was not happy with the outcome of Ms Seymour’s investigation and the solutions the Applicant proposed was for Mr Homan to be removed from the store as her Manager.
Mr Spiteri was aware that at time, as it had been since the start of Ms Seymour’s investigation, the Applicant was not working with Mr Homan.
In response to her proposed solution, he explained that because Ms Seymour’s investigation found that her primary allegations of bullying by Mr Homan were not substantiated Woolworths would not in fairness to Mr Homan remove him from his job or relocate him to another store.
Notwithstanding this he says the Applicant was adamant that this was the outcome she wanted.
He says that they then discussed various other alternative solutions however in response to these alternatives the Applicant reinforced that she was right in what she had alleged and she was not prepared to consider any of the proposed alternatives. She said she felt that if she were to accept any of the proposed alternatives this would result in her “losing face” or words to that effect.
She also said she wanted the investigation outcome letter changed to reflect that her allegations had been substantiated so that once again she could “save face” or words to that effect. In response the Applicant was told that the investigation had been completed and Woolworths could not simply alter the outcome to reflect that Mr Homan had done things when the investigation had concluded that this was not the case. He says the Applicant was not accepting of this explanation and remained quite adamant that the investigation outcome letter should be changed.
This meeting lasted approximately two hours and ended with the Applicant saying she would take the matter to the Commission.
Legislation
Section 789FD of the Act prescribes when a worker is bullied at work. The section set out below.
“789FD When is a worker bullied at work?
(1) A worker is bullied at work if:
(a) while the worker is at work in a constitutionally-covered business:
(i) an individual; or
(ii) a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
(b) that behaviour creates a risk to health and safety.
(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.
(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:
(a) the person is:
(i)a constitutional corporation; or
(ii) the Commonwealth; or
(iii) a Commonwealth authority; or
(iv) a body corporate incorporated in a Territory; or
(b) the business or undertaking is conducted principally in a Territory or Commonwealth place; then the business or undertaking is a constitutionally-covered business.”
Unreasonable behaviour is behaviour that a reasonable person, having regard to the circumstances, may see as unreasonable. In other words, it is an objective test. The fact that someone feels they are being bullied is of course not the test.
The bullying behaviour must create the risk to health and safety.
A worker is bullied at work if, while the worker is at work, someone repeatedly behaves unreasonably towards the worker, and that behaviour creates a risk to health and safety.
Expressly however this does not apply to reasonable management action carried out in a reasonable manner.
Repeatedly behaving unreasonably involves the existence of continuing unreasonable behaviour, and may include a range of different behaviours over a period of time. There is no specific number of incidents required for the behaviour to be “repeated”, provided there is more than one occurrence.
The requirement that there is a risk to health and safety means the possibility of danger to health and safety, and is not confined to cases where the unreasonable behaviour presents an actual danger to an employee’s health and/or safety.
The ordinary meaning of “risk” is exposure to the chance of injury or loss. The risk is however required to be real and not simply conceptual. The onus is on the applicant to prove this.
Also the requirement is that that the bullying behaviour must create the risk to health and safety meaning that, there must be a causal link between the unreasonable behaviour and the risk.
Finally, before the Commission is able to make orders to stop bullying, it must also be satisfied that the circumstances are such that the employee will continue to be bullied at work by that particular individual complained about.
In considering the terms of an order the Commission might choose to make it must take into account any outcomes arising out of a grievance procedure available to the worker.
Repeated unreasonable behaviour?
Turning then to consider the facts in this matter in the context of the legislation above, I accept the evidence is that when Mr Homan is rostered on to be the Applicant’s Manager she is generally allocated more work that she characterises as heavy than she is allocated by other Managers. I also accept the Applicant’s evidence that Mr Homan does not directly assist her doing this work as much as other Managers do, nor apparently does he communicate to her his appreciation of her work as often as other Managers do.
Mr Homan as the Assistant Manager of the Fruit and Vegetable Department is responsible for running that Department as he thinks best. It is unsurprising that not all of the Managers running the same Department do this in exactly the same way. Consequently, it is unsurprising that the Applicant’s experience working under different Managers is different.
The Applicant’s preference for how Managers other than Mr Homan allocate work to her and interact with her does not demonstrate in any way that his management approach is wrong or incorrect. It could be that other employees prefer Mr Homan as their Manager for other reasons.
Unfortunately, it is not uncommon for employees to look at others in their workplace and feel that by comparison they are being treated unfairly by their Managers. Often this view is based on a limited appreciation of the multiple interacting factors influencing their Managers’ decisions and actions.
The equal distribution of tasks between all employees is a one-dimensional perspective which will often not be the best option for the operation of a business.
It is also not uncommon for individual employees to have strong opinions about how work should be undertaken and that their Managers are managing poorly.
In this case perhaps there is an opportunity for Mr Homan to improve his management approach.
However, the fact that some action could have been conducted differently, or in a more reasonable manner, does not mean that action was unreasonable.[3]
The Applicant has not been subject to any criticism by Mr Homan let alone warnings or disciplinary action about her performance. Rather, she is recognised by Mr Homan as a good worker.
The evidence is that the Applicant sometimes doesn’t take her breaks or a lunch break, and sometimes doesn’t drink water to avoid having a toilet break. However, nobody has told her she shouldn’t take these breaks.
Unfortunately, it seems that the Applicant’s positive work ethic, which she would normally be applauded for, is in this case counterproductive. She is at times her own worst enemy.
Not taking breaks or drinking water doesn’t allow her to rest and refresh and likely contributes to her feeling physically tired and overwhelmed at times. The Applicant is entitled to these breaks and should take them.
Significantly there is no evidence before the Commission that Mr Homan’s allocation of work to the Applicant nor how he assists her and otherwise interacts with her is motivated by malice towards the Applicant or is otherwise done in bad faith.
Consequently, considering all of the evidence and the circumstances in this case my decision is that Mr Homan has not behaved unreasonably towards the Applicant.
Separately, I am satisfied that Mr Homan’s allocation of work and other interactions with the Applicant was reasonable management action carried out in a reasonable manner.
Risk to health and safety?
Had the Commission concluded that the Applicant had been subjected to repeated unreasonable behaviour it would have also been necessary for the Commission to be satisfied that this behaviour created a risk to health and safety. For completeness I will also consider this issue.
The onus is on the Applicant to prove the repeated unreasonable behaviour created a risk to health and safety.
The evidence regarding a risk to health and safety was limited to one radiology report which said nothing about the Applicant’s work or workload causing her health problems. Consequently, there is no proper basis for the Commission to conclude that the behaviours complained of by the Applicant created a risk to health and safety.
So it is that had the Commission been otherwise persuaded that the Applicant had been repeatedly subjected to unreasonable behaviour the absence of that behaviour having created a risk to health and safety would have resulted in a conclusion that she had not been bullied at work within the meaning of the Act.[4]
Conclusion
The Applicant has not demonstrated that she has been subjected to repeated unreasonable behaviour at work.
The behaviour about which she complains was reasonable management action carried out in a reasonable manner.
The behaviour about which the Applicant complains did not create a risk to health and safety.
Consequently, within the meaning of section 789FD of the Act the Applicant is not a worker who has been bullied at work.
The Commission must now dismiss this application and an order [PR737794] to that effect will be issued.
Appearances:
G. Outridge on behalf of the Applicant.
R. Wade of Ashurst Australia representative for Woolworths.
J. Illich of the Shop, Distributive and Allied Employees Association representative for Mr Homan.
Hearing details:
2021.
Perth,
October 18.
[1] Exhibit A1.
[2] Court book at pages 128 to 130.
[3] See Ferguson and Commonwealth Bank of Australia [2012] AATA 718 at 118.
[4] See section 789FD (1)(b) of the Fair Work Act 2009.
Printed by authority of the Commonwealth Government Printer
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