James Willis v Marie Gibson

[2015] FWC 1131

[2015] FWC 1131

FAIR WORK COMMISSION

REASONS FOR 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)

COMMISSIONER LEWIN MELBOURNE, 17 FEBRUARY 2015

Application for an FWC order to stop bullying — jurisdictional objection — whether reasonable management action carried out in a reasonable manner — jurisdictional objection not made out.

Introduction

[1] Mr James Willis made an application to the Fair Work Commission (the Commission) for an anti-bullying order under s 789FC of the Fair Work Act 2009 (the Act). Mr Willis’ application alleges that he had been bullied at work and is continuing to be bullied in his employment with Capital Radiology Pty Ltd (Capital Radiology).

[2] Capital Radiology made a jurisdictional objection that the Commission should not deal with Mr Willis’ application on the grounds that Mr Willis has not been and is not being bullied at work. Capital Radiology submitted that the actions of Capital Radiology through its General Manager and Human Resources Manager, which form the factual basis upon which Mr Willis’ application rests, is properly characterised as reasonable management action carried out in a reasonable manner.

[3] On 19 December 2014 I decided the jurisdictional objection ex tempore. I then stated that I would issue expanded reasons for that decision. These are my reasons.

Legislative scheme

[4] It is appropriate now to refer to the relevant statutory provisions which govern the hearing and determination of the jurisdictional objection in this matter.

[5] Section 789FC(1) of the Act provides that:

“A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF”.

[6] Section 789FD(1) of the Act provides that a worker is bullied while at work where an individual or group of individuals repeatedly behaves unreasonably towards the worker and that behaviour creates a risk to health and safety, as follows:

“(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.”

[7] Section 789FD(2) however, provides that it has no application to reasonable management action carried out in a reasonable manner, as follows:

“(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.”

Consideration

[8] Capital Radiology’s jurisdictional objection was made before the Commission completed the hearing of Mr Willis’ substantive application. If the jurisdictional objection were upheld, the Commission would cease to deal with Mr Willis’ application and would dismiss the application without full hearing of all of the evidence and submissions which would otherwise be provided as part of the proceedings on the application. In these circumstances, it is appropriate that it is for the party making the jurisdictional objection to provide sufficient evidence to satisfy the Commission of the substantive elements necessary to make out the jurisdictional objection, that is, to satisfy the Commission that no jurisdiction to hear the application exists and to hence dismiss the application without further hearing.

[9] In order to do so, Capital Radiology filed submissions and called Ms Marie Gibson, the General Manager, and Ms Peita Carroll, the Human Resources Manager to give evidence. After hearing the evidence, I was unable to be satisfied that the jurisdictional objection had been made out. Capital Radiology submitted that the actions referred to in the evidence of the witnesses was:

a) management action;

b) reasonable; and,

c) carried out in a reasonable manner.

[10] The evidence of the witnesses is to be judged objectively. What will be reasonable action carried out in a reasonable manner will require judgement by the Commission of what would be reasonable in the particular circumstances of a case.
[11] In determining Capital Radiology’s jurisdictional objection, the Commission needs to be satisfied, on the evidence before it, that the relevant action complained about by Mr Willis was, in all the circumstances, reasonable management action carried out in a reasonable manner by Ms Gibson and/or Ms Carroll.

[12] In my view, a requirement for relevant management action to be reasonable is that there must be some line of cause and effect between conduct, behaviour or performance of an employee, and the relevant management action, and that the management action is a reasonable and proportionate response to the attributes of the employee to which it is directed. In this case, the action taken in relation to Mr Willis was “disciplinary action”.

[13] The evidence for Capital Radiology, which was given by Ms Gibson and Ms Carroll, did not persuade me that there was such a logical causal link of the kind which could be judged as reasonable in the particular circumstances.

[14] On my objective consideration of the evidence in support of the jurisdictional objection, I was unable to make a satisfactory link between conduct, behaviour, or work performance, which constituted misconduct or unsatisfactory work performance by Mr Willis which would warrant “disciplinary action”.

[15] In my judgement, Ms Carroll found Mr Willis a problematic employee whose communication she considered was insufficiently subservient and respectful of authority. Moreover, it appears that Mr Willis complained about the conduct of staff of the clinic at which he was employed in relation to certain work practices. Ms Carroll thought such complaints inappropriate. On my evaluation of Mr Willis’ communication, which led to Ms Carroll’s dissatisfaction, while occasionally lengthy and verbose, and which contained details that were critical of such work practices, these communications were not inconsistent with Mr Willis’ performance of his duties. Reasonable minds may differ in relation to the efficiency and appropriateness of the relevant work practices at the clinic where Mr Willis is employed. However, differences of opinion about these things did not reasonably warrant “disciplinary action” as opposed to discussion about appropriate procedures with the employees involved.

[16] An example of a matter for which Mr Willis was subject to “disciplinary action” by Capital Radiology is as follows. The evidence suggested that “disciplinary action” was being taken by Ms Carroll in relation to what was described as Mr Willis’ email “etiquette” sometime after Mr Willis had responded positively to directions from his employer to amend his formatting and style of email communication, such as the use of capital letters and distribution of messages to particular persons within the organisation. In my view, in many respects, Mr Willis was responding effectively to management direction in relation to the performance of his duties, albeit, with some complaints about the way in which he was being treated prior to the “disciplinary action” being threatened against him.

[17] I note that there may have been a reasonable basis for orthodox performance management processes to be routinely applied in relation to Mr Willis’s discharge of his duties as a radiographer, in accordance with any reasonable requirements concerning the performance of his tasks. Particularly as Mr Willis was at the relevant time a relatively recent employee in the clinic at which he works. The management action involved was not of this kind. Rather, the management action taken was clearly identified as “disciplinary” in nature and could potentially have resulted in the termination of Mr Willis’s employment if Capital Radiology followed through the steps in its “disciplinary” procedure.
[18] It is of note that the evidence of Ms Gibson and Ms Carroll suggested some conflation between performance management and disciplinary action. This is unsurprising as the relevant company policies and procedures also evidence elements of this conflation. The relevant policy and procedure is headed: “Performance Management / Disciplinary Policy”. I set out the terms thereof below:

“1. Purpose

During the employment relationship, there may be occasions on which a staff members’ behaviour or work performance requires disciplinary action.

...

5. Policy

Disciplinary action will occur where there is concern with respect to a staff members’ performance or conduct in the workplace, failure to adhere to company policies, or failure to adhere to lawful and reasonable directions.”

[19] My consideration of the circumstances distinguishes between the objective basis upon which disciplinary action might have been reasonable in relation to Mr Willis’s conduct and work, on one hand, and the conduct of a performance management process on the other. It will have been observed, above, that despite apparent conflation, the Performance Management/Disciplinary Policy distinguishes between the two concepts, albeit imperfectly or at least is ambiguous. No doubt “disciplinary action” connotes something more threatening and sinister than performance management.

[20] On 4 September 2014 Ms Carroll sent a letter headed “Disciplinary Process” to Mr Willis. In the letter a number of alleged issues are referred to, said to have occurred between May and September 2014, including: efficiency, following direction, and attitude and rudeness. Within the Performance Management/Disciplinary Policy of Capital Radiology, disciplinary action is a stepped process which can lead to the termination of an employee’s employment.

[21] On the evidence before me concerning the issues referred to in the letter, Mr Willis had reasonably responded to matters concerning the efficiency of the clinic in which he was employed and which concerned processes and procedures for medical imaging and had revised his email communications. Mr Willis was communicating, fulsomely, with Capital Radiology. I think his communication was assertive, and at times mildly acerbic, but not insubordinate or confrontational. There was also an accusation of racism made by a staff member which, in my view, was misconceived on the material before me. The issue of alleged rudeness was insufficiently made out before me in the evidence so as to give rise to an objective basis upon which to reasonably commence disciplinary action against Mr Willis. One person’s rudeness may be another person’s frankness.

[22] I was therefore not objectively satisfied that there was conduct or behaviour by Mr Willis which could reasonably involve “disciplinary action” as opposed to routine performance management when the threatened “Disciplinary Process” was notified to Mr Willis.

[23] In this case, therefore, it is the management action which was taken in relation to Mr Willis, in the particular factual circumstances, which I remain to be satisfied was reasonable. It is apparent that Mr Willis felt threatened by the letter of 4 September 2014.

[24] In my view, disciplinary action taken against an employee involving multiple steps towards potential dismissal could reasonably be perceived to threaten the security of an employee’s employment, and cause them to feel threatened. Management action will not be taken reasonably where it places an employee under pressure when the action is not commensurate with the behaviour that is the basis of the disciplinary action.

[25] In the case of Mr Willis’ performance and conduct, in the context of Capital Radiology’s practices and procedures, I am not satisfied, on what is before me, that “disciplinary action” was reasonable. This is because I am unable to be satisfied that Mr Willis had behaved in a manner that warranted the threatened “disciplinary process”, which Mr Willis may cogently have believed could potentially lead to the termination of his employment.

[26] It is appropriate to note that in dismissing the jurisdictional objection, I have not reached the conclusion that Mr Willis has been bullied at work. Capital Radiology carried the burden to make out the jurisdictional objection which would lead to Mr Willis’ application being dismissed without the opportunity for Mr Willis to establish that he has been bullied at work. The case advanced by Capital Radiology has not risen to the level of the requisite satisfaction. In order to do so, the Commission would have to be objectively satisfied that threatened “disciplinary action” was based on a clearly evident and intelligible justification. I am not so satisfied.

[27] In relation to the substantive merits of this matter, in order for the Commission to exercise its powers to make an anti-bullying order, it will be necessary for the Commission to make a finding pursuant to s 789FD and 789FF of the Act that Mr Willis has been bullied at work; that such bullying behaviour creates a risk to health and safety; and, that there is a risk that Mr Willis will continue to be bullied at work. It is only once the Commission is satisfied of all of these elements that any power for the Commission to make an order to prevent continued bullying behaviour at work arises.

Decision

[28] The jurisdictional objection was dismissed for these reasons.

COMMISSIONER

Appearances:

Mr J Willis, on his own behalf.

Ms S McCowan, Service Industry Advisory Group, on behalf of the Respondents.

Hearing details:

Melbourne, 2 December 2014.

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