James Willis v Marie Gibson
[2015] FWC 3538
•22 MAY 2015
| [2015] FWC 3538 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
James Willis
v
Marie Gibson; Capital Radiology Pty Ltd T/A Capital Radiology; Peita Carroll
(AB2014/1425)
Health and welfare services | |
COMMISSIONER LEWIN | MELBOURNE, 22 MAY 2015 |
Application for an FWC order to stop bullying.
[1] This decision concerns an application by Mr James Willis for an order to prevent alleged bullying at work pursuant to .789FC(1) of the Fair Work Act 2009 (Cth) (Act).
[2] The relevant statutory provisions of the Act are set out below:
“Section 789FC - Application for an FWC order to stop bullying
(1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under s. 789FF.
Section 789FF - FWC may make orders to stop bullying
(1) If:
(a) a worker has made an application under section 789FC; and
(b) the FWC is satisfied that:
(i) the worker has been bullied at work by an individual or a group of individuals; and
(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;
then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.
(2) In considering the terms of an order, the FWC must take into account:
(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body--those outcomes; and
(b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes--that procedure; and
(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes--those outcomes; and
(d) any matters that the FWC considers relevant.”
[3] It will have been observed that for the Commission to make Orders of the kind sought by Mr Willis the Commission must be satisfied that Mr Willis has been bullied at work, among other things. Section 789FD of the Act prescribes when a worker is bullied at work for the purposes of Part 6-4B of the Act, which comprises the framework, jurisdiction and powers of the Commission in relation to the determination of Mr Willis’ application.
[4] Section 789FD of the Act prescribes as follows:
“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.”
[5] The individuals said to have repeatedly behaved unreasonably towards Mr Willis are Ms Marie Gibson and Ms Peita Carroll. Ms Gibson is a General Manager. Ms Carroll is a Human Resources Manager. An order is also sought in relation to Capital Radiology Pty Ltd (Capital Radiology), Mr Willis’ employer (collectively, the Respondents).
[6] The application has been before the Commission for some time and has been heard and dealt with in various ways as the situation in the employment relationship has unfolded, dynamically.
[7] On 22 September 2014, Capital Radiology sought the dismissal of the application on the ground that the Respondent’s behaviour, which formed the factual basis of Mr Willis’s originating application, was reasonable management action carried out in a reasonable manner. At the time of the application, Mr Willis relied upon action taken by Ms Gibson and Ms Carroll in visiting his place of work unannounced and conducting an interview without notice. It is alleged that during this meeting, Ms Gibson behaved unreasonably by berating him, whilst Ms Carroll visually demonstrated amusement at his predicament.
[8] After some email interaction, Capital Radiology through Ms Carroll commenced disciplinary action about matters in respect of which evidence was given. The Respondents submitted that this disciplinary action should be considered reasonable management action carried out in a reasonable manner and the Commission should not further hear the application as there was, in the circumstances, no jurisdiction to do so. The Commission decided that it was unable to be satisfied that the actions complained of by Mr. Willis did constitute reasonable management action carried out in a reasonable manner and would therefore continue to hear and determine the application after a complete inquiry. 1
[9] Central to the contention of the Respondents for dismissal of the application on the ground of reasonable management action carried out in a reasonable manner was a notice in early September to Mr Willis from Ms Carroll informing Mr Willis that he was the subject of the Capital Radiology disciplinary process. The Commission was not satisfied that in the fine grained factual matrix applicable to the issues raised in relation to the notice of the commencement of the disciplinary process, the Respondents justified the commencement of that disciplinary process at that time. The Commission was of the view that a contributing causal factor was the conflation within Capital Radiology’s documented human resource management policy of employee performance management and disciplinary action. In my view, it could be somewhat confusing to Mr Willis that while the Respondent’s intention was the performance management of Mr Willis, the action was in fact disciplinary in nature, which Mr Willis found threatening.
[10] The Commission’s decision dismissing the jurisdictional objection of the Respondents was first issued ex tempore on 19 December 2014. On the same day, the Respondents advised that prior to the hearing and the ex tempore decision Capital Radiology had independently decided to cancel the disciplinary process and embark upon a performance management process. In my view, at this point the circumstances in which the application subsisted changed somewhat significantly. The Commission subsequently produced written reasons for the decision to dismiss the Respondent’s jurisdictional objection. 2
[11] In my view, it was unreasonable for Ms Gibson, the General Manager, and Ms Carroll, the Human Resources Manager, to arrive at Mr Willis’s place of work unannounced and to berate him about matters which were in some, if not most cases, a consequence of Mr Willis having only very recently commenced work as a radiographer and who the Respondent’s knew had undergone a relocation of residence in order to take up his position with Capital Radiology.
[12] Moreover, I consider that Mr Willis had been unreasonably placed in an ambiguous situation whereby he was employed by and responsible to Capital Radiology, but was expected to respond to the wishes of a person not employed by Capital Radiology, who had no medical qualifications, namely the practice manager of the GP clinic in which Capital Radiology’s medical imaging business was co-located. This was somewhat confusing for a new employee and in my view the manner of Ms. Gibson’s and Ms Carroll’s actions were unreasonably abrupt and threatening for Mr Willis.
[13] I reject the characterisation of the visit as routine. To be surprised by a joint visit from the General Manager and Human Resources Manager of a company with around five-hundred employees 3 and be subject to severe criticism based on complaints by a person employed by a different entity, I consider was unreasonable action carried out in and unreasonable manner. I consider that a simple and reasonable course of action would have been to advise Mr Willis of the proposed meeting and, even if only in the most summary terms, the purpose of the meeting, either by telephone or email, and attempt to explain the expectations of Mr Willis’ performance of his duties in the particular circumstances obtaining at the Clinic, in a supportive way.
[14] It does not require the wisdom of the ancients to appreciate the effect upon an employee, who has only recently started work and who is still working during a probationary period, of the unannounced actions of Ms Gibson and Ms Carroll. I judge that at one level or another Mr Willis would have experienced the actions and behaviour of Ms Gibson and Mr Carroll as threatening.
[15] In combination I consider the events of 30 May 2014 and the commencement of the disciplinary process, subsequently cancelled and withdrawn by the Respondents, to have been unreasonable behaviour of Capital Radiology’s General Manager and Human Resources Manger and action which was not carried out in a reasonable manner. Accordingly, I find that that this constituted repeated unreasonable behaviour. I considered that this behaviour created a risk of injury to Mr Willis’ psychological health and wellbeing, if it were to continue. I accept Mr Willis’ evidence that this behaviour made him feel threatened.
[16] I remain unconvinced that the actions of 30 May 2014 and the notification of commencement of a disciplinary process on 4 September 2014 were reasonable management action carried out in a reasonable manner. However, for reasons which will become clearer below, that of itself is not determinative of whether the Commission should make an Order of the kind sought.
[17] Accordingly, I find that there is jurisdiction to deal with Mr Willis’ application pursuant to s.789FF(b)(i) of the Act. However, I must consider whether the power to make the order sought by Mr Willis arises, having regard to the conditions set out in s.789FF(b)(ii) of the Act.
[18] Should I be satisfied that there is a risk that Mr Willis will continue to be bullied at work, the power to make an order on the application would arise pursuant to s.789FF(b)(ii) of the Act.
[19] Mr Willis’ employment situation has altered significantly since the withdrawal of the notice of commencement of the disciplinary process. A narrative of the relevant events would be very extensive. It is true to say that the relationship between Mr Willis and Capital Radiology has become very strained to the extent that, amongst other things, Mr Willis has been stood down with pay and has initiated proceedings in the Federal Circuit Court of Australia, in relation to allegations of breaches of his workplace rights.
[20] I have considered all of the interactions between Mr Willis and Capital Radiology since the withdrawal of the notice of commencement of disciplinary process advised to the Commission on 19 December 2014. I do not consider that any of the actions of the Respondent’s since the withdrawal of the notice have been unreasonable. Nor do I consider the actions taken by Capital Radiology in the course of the management of Mr Willis’ employment since that time to have been carried out in an unreasonable manner.
[21] While I offer no criticism of the actions taken by Capital Radiology in the management of Mr Willis’ employment since the 19 December 2014, I must weigh the possibility of unreasonable management action or reasonable management action carried out in an unreasonable manner occurring precipitously in the heightened atmosphere which has arisen.
[22] The situation has become highly adversarial. On the materials before me, Mr Willis has made strident accusations and allegations against Ms Gibson and Mr Carroll since the ex tempore decision of 19 December 2014. That situation has been managed at the highest level of the management of Capital Radiology with restraint and patience. In my view, Mr Willis has not been fully cooperative in relation to the process that has been put in place by Capital Radiology. Ms Gibson and Mr Carroll have had no direct interaction with Mr Willis in this regard. The management of Mr. Willis’ employment has recently been conducted by Capital Radiology’s Executive Director and Chief Financial Officer, Mr Dominik Kucera. 4 The situation is potentially, if not already, volatile. The issue of ongoing risk of bullying is therefore a matter which requires careful consideration.
[23] I have considered the ordinary meaning of the work risk. Set out below is the Macquarie Concise Dictionary entry for the term “risk”:
“1. exposure to the chance of injury or loss; a hazard or dangerous chance; to run risks.” 5
[24] I think the risk that is identified for the purposes of the Act is a hazard or danger that in the particular circumstances of an individual case the employee may be subject to further events of unreasonable behaviour of a kind identified by the Act, which would be likely to cause them to feel humiliated or victimised. A judgement of the probability of this is required by the Commission. However, the judgement required is either affirmative or negative. That is to say that, for the purposes of the relevant statutory provisions, it is not necessary to find that the probability is of a higher order of risk, a moderate level of risk or a low level of risk. Rather, if the Commission is satisfied that there is some level of risk, of whatever degree, the power to make an order to prevent such risk becoming manifest will arise (so long as the other conditions precedent to the power to make an order of the relevant type exist). The order of risk will inform the discretionary exercise of the power to make an order to prevent bullying and the likely form of any order which maybe considered appropriate.
[25] The order sought by Mr Willis is in the following terms:
“The HR Manager. Peita Carroll and the General Manager, Marie Gibson, should stop the bullying by subterfuge.
Their behaviour should be regularly monitored.
The employer’s bullying policy should be reviewed.” 6
[26] Following a Conference held on 15 October 2014, the Commission issued a draft agreement to the Parties for their consideration and were given an opportunity to respond to its terms. The draft agreement was drafted as follows:
“James Willis and Capital Radiology agree that the following are terms and conditions of Mr Willis’ contract of employment:
(1) Capital Radiology agrees that: where an issue concerning Mr Willis' employment and the performance of his duties and responsibilities arises for discussion, performance management or disciplinary procedures, Capital Radiology will act reasonably and in a reasonable manner at all times in the management and manner of management of Mr Willis’ employment.
(2) Where a matter of the kind mentioned in paragraph 1, above, arises, the matter will be communicated to Mr Willis in writing.
(3) Any matter of the kind arising in paragraph 1, above, will be notified to Mr Willis on seven days notice before Mr Willis is required to respond.
(4) Mr Willis will be provided with specific and detailed assertions and allegations in relation to his performance or conduct.
(5) Any assertions or allegations concerning Mr Willis’ performance or conduct will be supported by all relevant facts and information, so as to enable Mr Willis to be fully aware of the basis thereof.
(6) Mr Willis will be afforded an opportunity to respond, in writing, within a reasonable time, of no less than seven days, unless agreed otherwise, and a reasonable opportunity to obtain and present any relevant information or materials.
(7) Once Mr Willis has had a reasonable opportunity to respond to any assertion or allegation in relation to the performance of his duties and responsibilities, the parties will meet and confer, at a reasonably convenient time, to discuss and consider the relevant matters.
(8) Mr Willis will be provided with an opportunity to be represented or supported at any meeting or conference for the purpose of discussing any of the above matters.
(9) Capital Radiology will give due and reasonable consideration to anything put by Mr Willis in accordance with the above procedure before taking any decision in relation to any relevant matter.
(10) Capital Radiology will not take any action in relation to Mr Willis’ employment until the fair and proper application of the above procedure has been completed.”
[27] The draft agreement was not agreed upon by the parties.
[28] On 7 April 2015, following a Hearing held on 30 March 2015 at which Capital Radiology referred to the draft agreement above, the Commission issued a revised draft agreement to the parties for their consideration and were given an opportunity to respond to its terms. The revised draft agreement was redrafted as follows:
“James Willis and Capital Radiology agree that the following are terms and conditions of Mr Willis’ contract of employment:
(1) Capital Radiology agrees that: where an issue concerning Mr Willis' employment and the performance of his duties and responsibilities arises for discussion, performance management or disciplinary procedures, Capital Radiology will act reasonably and in a reasonable manner at all times in the management and manner of management of Mr Willis’ employment.
(2) Where a matter of the kind mentioned in paragraph 1, above, arises, the matter will be communicated to Mr Willis in writing.
(3) Any matter of the kind arising in paragraph 1, above, will be notified to Mr Willis on five days notice before Mr Willis is required to respond.
(4) Mr Willis will be provided with specific and detailed assertions and allegations in relation to his performance or conduct.
(5) Any assertions or allegations concerning Mr Willis’ performance or conduct will be supported by all relevant facts and information, so as to enable Mr Willis to be fully aware of the basis thereof.
(6) Mr Willis will be afforded an opportunity to respond, in writing, within a reasonable time, of no less than seven days, unless agreed otherwise, and a reasonable opportunity to obtain and present any relevant information or materials.
(7) Once Mr Willis has had a reasonable opportunity to respond to any assertion or allegation in relation to the performance of his duties and responsibilities, the parties will meet and confer, at a reasonably convenient time, to discuss and consider the relevant matters.
(8) Mr Willis will be provided with an opportunity to be represented or supported at any meeting or conference for the purpose of discussing any of the above matters. Should the provision of a support person be prevented within the five day notice to Mr Willis under paragraph 5, for bona fide reasons, a further 2 days notice will be provided.
(9) Capital Radiology will give due and reasonable consideration to anything put by Mr Willis in accordance with the above procedure before taking any decision in relation to any relevant matter.
(10) Capital Radiology will not take any action in relation to Mr Willis’ employment until the fair and proper application of the above procedure has been completed, except that should Capital Radiology consider it appropriate for Mr Willis to take special paid leave while the above procedure is followed it may direct Mr Willis to do so.”
[29] The revised draft agreement was not agreed to by the parties. The revised draft agreement addressed concerns voiced by Capital Radiology concerning the first draft, notably by the inclusion of paragraph 10 thereof. Capital Radiology was reluctant to enter into any such agreement and chose not to do so. Mr Willis sought additional terms in relation to the cancellation of records concerning the earlier actions of the Respondent’s.
[30] The issue I must now decided is whether there is a risk of unreasonable behavior by the Respondents which would arise in a strained employment relationship that would constitute bullying behavior by the Respondents toward Mr Willis pursuant to s.789FF(b)(ii) of the Act.
[31] The countervailing considerations are the Respondents’ careful attention to procedural fairness since the time of the ex tempore decision of 19 December 2014, when the disciplinary action commenced on 4 September 2014 was withdrawn on one hand. On the other hand, the possibility that the volatile situation which has developed could perhaps trigger precipitate behavior by one or all of the Respondents which would be unreasonable.
[32] I have carefully considered the action of the Respondents since the withdrawal of the disciplinary notice. In my judgment, it cannot be faulted. Moreover, I consider that what has been done since that time can in all cases be described as reasonable management action carried out in a reasonable manner.
[33] I note that during the course of the procedure adopted by Capital Radiology, Mr Willis has written inflammatory emails and made serious allegations against Ms Gibson and Ms Carroll. This communication has included demands for dismissal and derogatory descriptions of Ms Gibson and Ms Carroll’s character. In the face of this, Capital Radiology, Ms Gibson and Ms Carroll have not responded with anything I would consider to be bullying behavior within the meaning of the Act.
[34] Mr Willis has been stood down with pay while the procedure of Capital Radiology has been followed or attempts have been made to follow that procedure. I consider the procedure to be a reasonable one. Mr Willis’ work has been performed by another person at additional expense to Capital Radiology while attempts to follow the procedure have been made. 7
[35] On balance, in light of the evident intentions of the Respondents to follow fair procedure, I am unable to be satisfied that as long as the procedure is followed, with the same intention and caution, there is a risk that bullying of Mr Willis will continue. I therefore do not have the power to make an order in this matter. The application is dismissed. In the event of any allegations of further bullying being made by Mr Willis, Mr Willis may make another application.
COMMISSIONER
Appearances:
Mr J Willis on his own behalf.
Ms C Symons of Counsel for Capital Radiology Pty Ltd, Ms M Gibson and Ms P Carroll.
Final written submissions:
16 April 2015.
1 James Willis v Marie Gibson; Capital Radiology Pty Ltd T/A Capital Radiology; Peita Carroll[2015] FWC 1131
2 James Willis v Marie Gibson; Capital Radiology Pty Ltd T/A Capital Radiology; Peita Carroll[2015] FWC 1131
3 Transcript of Proceedings, James Willis v Marie Gibson; Capital Radiology Pty Ltd T/A Capital Radiology; Peita Carroll (Fair Work Commission, Commissioner Lewin, 13 March 2015) PN1556
4 Exhibit R3, [44]
5 The Macquarie Concise Dictionary (The Macquarie Library Pty Ltd, 2nd ed, 1988), 857
6 Form F72 - Application for an order to stop bullying, James Willis, 11 September 2014
7 Capital Radiology, ‘Respondent’s Submissions’, Submission in James Willis v Marie Gibson; Capital Radiology Pty Ltd T/A Capital Radiology; Peita Carroll, 17 February 2015
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