Jesse Ashley v v/Line Corporation

[2024] FWC 2765

[2024] FWC 2765

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Jesse Ashley
v

V/Line Corporation and others

(AB2024/631)

DEPUTY PRESIDENT COLMAN MELBOURNE, 3 OCTOBER 2024

Application for an order to stop bullying – application dismissed

1. Jesse Ashley has made an application under s 789FC of the Fair Work Act 2009 (Act) for an anti-bullying order against V/Line Corporation (V/Line). In his application Mr Ashley stated that between mid-2022 and August 2024 he had been bullied at work by his supervisor, Greg Egan, and another manager, Matthew Glover. Earlier today I dismissed the application, for reasons given briefly on transcript. These reasons are set out at [6] to [9] below and include a statement of my factual findings.

1. Mr Ashley said that the bullying conduct involved Mr Egan and Mr Glover forcing him to leave the workplace, to undergo medical tests, and to take annual leave. He said that on several occasions his managers had isolated him and accused him of things he had not done, and that attempts were made to force him to write statements of guilt. He said that he was required to provide medical certificates for sick leave absences on Fridays. He also said that he had been required to sign off on safety details on billions of dollars of public infrastructure despite not having the relevant qualifications, because his co-worker was computer illiterate and did not know how to use the work apps on his iPad. Mr Ashley said that he was concerned that he was going to be dismissed even for the most minor mistake. He sought an order that would prevent V/Line from creating a fake paper trail that might be used as a pretext to unlawfully dismiss him, and an order that would require V/Line to give his supervisor a warning about his behaviour.

1. V/Line, Mr Egan and Mr Glover denied that there was any unreasonable conduct on their part. They contended that Mr Ashley had been subjected to reasonable management action that was directed at addressing V/Line’s concerns about his performance and also his fitness for duty. In relation to performance, it referred to four incidents. The first occurred in July 2022 and involved the apparent misuse of a work iPad. The second incident was in August 2023, when it was reported that Mr Ashley had been lying on the grass while others were working. The third incident was in December 2023, when Mr Ashley failed to attend work and did not notify V/Line of his absence until a week later. The fourth occurred in June 2024 when Mr Ashley took his colleague’s iPad home and incurred excessive data usage for the month, some ten times the second highest usage of all work devices at the depot.

1. V/Line stated that the only time Mr Ashley was required to leave the workplace was in May 2023 when his medical clearance expired. V/Line declined to grant him leave without pay in the interim period because policy requires other forms of leave to be used first. Mr Ashley took annual leave, renewed his clearance, and returned to work. V/Line said that Mr Ashley was required to undergo medical clearances in line with his position description and the safety critical nature of his role. The respondents denied that Mr Egan or Mr Glover inappropriately ‘isolated’ Mr Ashley. Rather, they had spoken with him separately about performance issues, which was appropriate. V/Line said that its concerns about Mr Ashley’s performance were genuinely held. They denied trying to make Mr Ashley write statements of guilt and said that he was simply offered the opportunity to provide written statements if he so wished. So much can be heard from an audio file submitted to the Commission. The respondents said that medical certificates were required when reasonable, such as for sick leave absences prior to pre-approved leave. They denied that Mr Ashley had to sign off on safety details, or that his colleagues were computer illiterate.

1. A worker is ‘bullied at work’ if, while the worker is at work in a constitutionally covered business, an individual or group of individuals ‘repeatedly behaves unreasonably towards the worker’ and that behaviour ‘creates a risk to health and safety’ (s 789FD(1)). The Commission is empowered to make an anti-bullying order only if it is satisfied that the worker ‘has been bullied at work’ (s 789FF(1)(b)(i)), and that there is also ‘a risk that the worker will continue to be bullied at work’ (s 789FF(1)(b)(ii)).

1. At the determinative conference this morning, I dismissed the application for the following reasons.

1. First, I was not persuaded that Mr Egan, Mr Glover or V/Line had behaved unreasonably. I found that the respondents held genuine concerns about Mr Ashley’s performance and capacity, and that it was reasonable for V/Line to investigate them. Mr Ashley was required to leave the workplace when his medical clearance expired, and to use his annual leave, but there was nothing unreasonable about these things in the circumstances. He was not pressured into making confessions of guilt. I found that Mr Ashley was not ‘isolated’. He was spoken to in private about performance matters, which is appropriate. I found that Mr Ashley did not in fact sign off on safety details for large projects without qualifications; no details of these improbable claims were provided, and I accept V/Line’s statement that it has checked its assets database and that no work orders were signed off by Mr Ashley. In any event, he should not be signing off on matters that exceed his qualifications and authority. Finally, there was no evidence to support Mr Ashley’s theory that V/Line wanted to create a ‘fake paper trail’ to justify his dismissal, or that V/Line might dismiss him for the smallest error.

1. Secondly, no link was established between the conduct that Mr Ashely claimed to be unreasonable and any risk to his health and safety. In the absence of such a link, there is no power to make an antibullying order.

1. Thirdly, I found that there was no risk that Mr Ashley would be bullied at work in the future. There was no basis to conclude that he will be subject to unreasonable conduct that would create a risk to his health and safety at work.

1. As the conditions in s 789FF were not met, the Commission had no power to make an anti-bullying order. The application was therefore dismissed.

DEPUTY PRESIDENT

Appearances:

J. Ashley for himself
R. Glover for the respondents

Determinative conference details:

2024
Melbourne (by telephone)
3 October

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