Jodie Bain - [2023] FWC 2583

[2023] FWC 2583

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Jodie Bain

(SO2022/553)

COMMISSIONER SIMPSON

BRISBANE, 6 OCTOBER 2023

Application for an FWC order to stop bullying

On 9 November 2022, Ms Jodie Bain (Ms Bain / the Applicant) made an application pursuant to s.789FC of the Fair Work Act 2009 (the Act) to the Fair Work Commission (the Commission) for an order to stop bullying. The Applicant’s employer was, at the relevant times and continues to be, Montessori School Limited T/A Montessori School Fig Tree Pocket (the Employer/ the School) and the person named in the application is Mr Chris Peach (Mr Peach / the Person Named, together ‘the Respondent’).

History of the Matter

The matter was allocated to me on 23 November 2022 and I listed it for a conference on 16 December 2022. Following the conference, the matter was adjourned. Following a request from the Applicant’s Representative on 22 February 2023, the matter was listed for a Directions Hearing on 7 March 2023 as it remained unresolved. I set directions for the filing of material, and the matter was listed for hearing on 3, 4 and 5 May 2023.

At the commencement of the hearing on 3 May 2023, the parties agreed to adjourn into conference and engaged in settlement discussions. On 3 May 2023 the parties reached an interim agreement regarding the matter which was confirmed on the record. Following this, I adjourned the matter and told the parties my Associate would seek an update in a couple of months on the progress of steps agreed in the interim agreement.

On 8 June 2023, my chambers received an email from the Applicant’s representative noting that the matter has not been resolved by way of the interim agreement and requested that the matter be listed for final hearing. I listed the matter for directions hearing on 14 June 2023 and gave the parties an additional opportunity to file any additional material. The matter was listed for hearing on 25 July 2023 and an additional day on 11 August 2023 due to witness availability.

Background

The Applicant is employed in the role of Head of Children’s House (HoCH).

The Applicant asserts in this application that she has been subjected to repeated unreasonable behaviour, whilst at work, by Mr Peach, the School Principal. The Applicant asserts the unreasonable behaviour of Mr Peach falls within the following four categories:

a.Delegation of unreasonable workload;
b.Failure to undertake an appropriate inquiry into the complaints made by the Applicant in relation to her workload concerns;
c.The implementation and management of the performance management process; and
d.The unreasonable management of the Applicant whilst on personal/carers leave.

The Applicant submitted that the behaviour of Mr Peach was repeated, and was a risk to the Applicant’s health and safety. Further the Applicant submitted that the behaviour of Mr Peach was not reasonable management action carried out in a reasonable manner.

SUBMISSIONS AND EVIDENCE

The Applicant was represented by Mr Troy Spence of Counsel instructed by Saines Legal. The Respondent was represented by Mr Dan Pratt of Counsel instructed by Employer Services. Leave was granted for the parties to be legally represented. The Applicant relied on the witness statement of Mr Chris Murphy of 28 June 2023[1], the Applicant’s own witness statements of 29 March 2023[2], 26 April 2023[3], 28 June 2023[4] and 21 July 2023[5], a statement from Ms Andrea Garwell of 27 June 2023,[6] a statement from Ms Emma Marshall a solicitor at Saines Legal dated 28 June 2023,[7] a statement of Ms Wei Wang Psychologist dated 25 April 2023,[8] and a statement of Mr Nigel Saines of 10 August 2023.[9]

The Respondent relies on the witness statements of Mr Christopher Peach dated 18 April 2023,[10] 12 July 2023, [11] and 9 August 2023,[12] the statement of Ms Carolyn Saunders dated 12 July 2023,[13] and the statement of Mr David Robertson dated 13 July 2023.[14]

Repeated and Unreasonable Behaviour

The Applicant submitted that the assessment of repeated and unreasonable behaviour[15] is an objective test, as articulated in the parliament’s explanatory memorandum in the Fair Work Amendment Bill 2013:

109. The Committee went on to note that ‘repeated behaviour’ refers to the persistent nature of the behaviour and can refer to a range of behaviours over time and that ‘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). This would include (but is not limited to) behaviour that is victimising, humiliating, intimidating or threatening.[16]

The Applicant submitted that the then Commissioner Hampton in Ms SB provides the tests for determining repeated behaviour and unreasonable behaviour:

Having regard to the approach urged by the authorities, the concept of individuals ‘repeatedly behaving’ unreasonably implies the existence of persistent unreasonable behaviour but might refer to a range of behaviours over time. There is no specific number of incidents required for the behaviour to represent ‘repeatedly’ behaving unreasonably (provided there is more than one occurrence), nor does it appear that the same specific behaviour has to be repeated…[17]

…

‘Unreasonable behaviour’ should be considered to be behaviour that a reasonable person, having regard to the circumstances, may consider to be unreasonable. That is, the assessment of the behaviour is an objective test having regard to all the relevant circumstances applying at the time.[18]

Repeated

The Applicant says that the conduct engaged in by Mr Peach towards her was repeated behaviour over an extended period of time. The Applicant says that the workload concerns have been ongoing since at least January 2021.

The Applicant says that the behaviour of Mr Peach in failing to investigate her concerns has occurred on multiple occurrences. Further, the Applicant says that Mr Peach’s implementation of the performance management process and the management of that process has been deficient on multiple occurrences.

The Applicant contends that there has been multiple occurrences of unreasonable treatment of her whilst on personal carers leave.

Unreasonable Behaviour

The Applicant contended that the conduct of Mr Peach, when viewed objectively, either combined or separately, amounts to unreasonable behaviour.

The Applicant submitted the treatment of the Applicant by Mr Peach falls well below what a regular person would think is acceptable treatment by their manager.

Further, The Applicant submitted the behaviour of Mr Peach was unreasonable behaviour as it was inconsistent with:

a.The First Respondent’s policy;
b.The EBA; and
c.The Contract.

Caused Risk to Health and Safety

The Applicant submitted Section 789FD of the Act requires that for a finding that a worker has been bullied at work, the behaviour needs to create a risk to health and safety. The then Vice President Hatcher in Mac v Bank of Queensland made the following comments related to determining if there is a risk to health and safety:

“It is clear that it is not necessary for an applicant to demonstrate that he or she has suffered an actual detriment to health or safety - that is, actual illness or injury - in order to demonstrate the necessary risk. However, the existence of such an illness or injury may be relied upon as a manifestation of the necessary risk, provided of course that the requisite causal link to the unreasonable behaviour at work has been established.”[19]

It was contended that the Applicant has submitted direct evidence that she has suffered injury and continues to suffer injury because of Mr Peach’s behaviour.

Reasonable Management

The Applicant is of the opinion that the conduct she has been subjected to by the Applicant was not reasonable management action conducted in a reasonable manner.

The Applicant’s Role

The Respondent submitted that Applicant’s case is, broadly speaking, in two parts. First, assertions that the nature of her role as HoCH, and the duties she performed within it, constituted some element of unreasonableness such that it constituted bullying. The Respondent submitted that the nature of an employee’s role or position description cannot constitute “behaviour” such as referred to in section 789FD of the Act.

The Respondent submitted the clear purpose of section 789FD is evident by its grammatical or literal meaning derived from simply reading it.[20] It is a provision that’s purpose is to address the behaviour of individuals towards each other in the workplace. The Respondent noted the use in the provision of the word “individual” rather than “person” (which would include the corporate person that might be construed as the author of a position description or duty statement). The Respondent submitted that what the provision does not do, which would have been an easy thing for Parliament to do had it desired, is require the Commission to assess how reasonable a corporate person’s demands on a worker are by virtue of assessing the relevant duty statement.

The Respondent submitted the first assertion is without foundation in law and that part of the application should be dismissed. It was submitted it is without legal basis because the Commission is not empowered under the Act to address the Applicant’s complaints about how challenging her role is.

Allegations of Fact

The Respondent submitted the second element to the Applicant’s claim is that there were instances where the way Mr Peach managed her constituted unreasonable behaviour that caused a risk to the Applicant’s health and safety. This part of the claim rests upon allegations of fact.

UNREASONABLE WORKLOAD

The Applicant submitted Clause 6.7.2 of the EBA sets out the ordinary hours of work that the Applicant was required to work:

“Directed Duties – While it is expected that staff will be onsite from 8:15am to 3:30pm every school day, their directed duties will total no more than 32 hours and 30 minutes per week. Duties during this time are:

(a) Contact time
(b) Non-contact time, including planning and preparation
(c) Lunch and playground supervision, including outside of the school hours
(d) Staff meeting and professional development.”

It was submitted that clause 6.7.7 of the EBA makes it clear that the Applicant’s work hours were not to exceed those which are set out in clause 6.7 of the EBA:

The total number of hours expected of a full-time teacher shall not exceed those set out in clause 6.7 of the Agreement, providing that the following circumstances are not included in the designated school year:

(a) When the employee appointed to Head of School (HoS) position is performed duties in non - term weeks that are directly associated with the HoS position; and
(b) Exceptional circumstances, such as the requirement to provide pastoral care to students in the event of tragedy in the school community, in which an employee may be recalled to perform duties relating to their position.

The Employer will provide written notice of the term weeks and days in non - term times on which the employees are required to attend, not later than the commencement of the calendar year.
…

The Applicant submitted Clause 6.9 of the EBA provides specific information in relation to the Head of School position.

The Applicant submitted Clause 6.9.2 of the EBA provides for the Appointment of a teacher to the Head of School role:

Appointment - A teacher appointed to a HoS shall be provided with a letter of appointment, setting out the allowance payable, the release time and position description of the role. This allocation may be varied on an annual basis after consultation with the occupant. However, where such variation occurs, it will be committed to writing.

The Applicant submitted Section 6.9.5 of the EBA provides the Role and Responsibilities of the Head of School position:

Roles and Responsibilities – The role of Hos of the ‘Children’s House’ and ‘Primary School’ incorporate such tasks but is not limited to:

(a) Curriculum leadership through such mechanisms as:
(i) Overseeing and guiding the department and delivery of curriculum;
(ii) Mentoring staff;
(iii)Preparation and presentation of professional development;
(iv) Internal moderation of curriculum and standards;
(v) Maintain a general overview of student progress
(vi) Present parent education programs.

(b) Administration such as:
(i) Attending relevant School meetings (including with senior management) to discuss issues, solve problems and address concerns and to engage in shor and long term planning;
(ii)Deputising in the absence of the Principal;
(iii) Mediation as per the Disputes Resolution provision;
(iv)Coordination of resource procurement.

The Applicant submitted the Contract of employment provides that the release time for the Head of School – Children’s House is 32.5 hours per week. The Applicant submitted it is the Applicant’s assertion that there was an expectation that she works unreasonable additional hours.[21] It is the Applicant’s submission that Mr Peach, by adding additional roles and duties, created an unreasonable workload for the Applicant.[22]

The Applicant submitted in addition to being required to work unreasonable additional hours, Mr Peach required the Applicant to undertake duties and roles which were outside her position description and the EBA.[23] The Applicant submitted that where an employer requires an employee to work excessive hours, and take on duties outside those contained within their contract, the EBA, and role descriptions, such behaviour will be unreasonable. The Applicant further submits that Mr Peach imposing excessive workloads on the Applicant is unreasonable, even if the tasks are contemplated within the terms of clause 6.9.5 of the EA.

The Respondent submitted that the part of the Applicant’s case that goes to the size and scope of her Head of Children’s House role is misconceived. Section 789FD of the Act does not operate to the effect that the Commission becomes a clearinghouse for disputes around position descriptions. The provision is centred on the “behaviour” of one “individual” (or “individuals”) towards another (or others). The nature and size of a person’s position description is not relevant. The Respondent submitted that what is relevant is how individuals behave towards each other in the workplace. For that reason, the Applicant’s assertions around the size and nature of her position description (how busy she was from time to time) are irrelevant.

The Respondent submitted on the evidence, there is nothing unreasonable about why Mr Peach carried out an organisational change where the Applicant would be working two days a week in the classroom as it was for operational and financial reasons and entirely within Mr Peach’s lawful managerial prerogative, pursuant to the Agreement and pursuant to the Head of School stated roles and responsibilities within section 6.9.5 of the Agreement. It was also a change that was in accordance with the Applicant’s position description, that is called up in her employment contract, which contained an express acknowledgement that the terms of the position description did not limit or infringe on the employer’s ability to assign further duties from time to time.

The Respondent submitted Mr Peach’s evidence is that his primary concern in directing the Applicant to spend two days on (slimmed down) classroom duties was because the leadership role of Head of Children’s House was one that had oversight and guidance on the delivery of, and development of, curriculum, staff mentoring, internal moderation and maintaining of the general overview of student standards. Mr Peach’s evidence is that it was a critical part of being an effective Head of Children’s House that the incumbent spend at least two days a week engaged in some form of classroom duties, albeit limited so as to almost never require preparation or marking duties.

The Respondent submitted also on the evidence, there was nothing unreasonable about the way Mr Peach went about directing that change. It does not appear that the Applicant alleges there was some unreasonableness in the way in which this direction occurred. Rather, the Applicant seems to take issue solely with the fact that this change occurred at all.

The Respondent submitted at the 12 July 2022 “Teachers Meeting”, Mr Peach’s evidence is that he did not make any direction to the Applicant, or anyone else, that they ought to be working 50 to 60 hours a week. On the evidence, that was an open meeting to discuss issues that staff had raised that directly flowed from the Applicant’s management, which Mr Peach was trying to address. The minutes were circulated for that reason. It was submitted there is nothing unreasonable about the manner in which Mr Peach conducted himself at that meeting or afterwards.

The Respondent submitted on the evidence, there was no increase to the Applicant’s duties between March 2022 and July 2022. Mr Peach’s evidence is that the nature of the role can be such that it can be very busy from time to time and steady at others. The direction that heads of schools undertake shortlisting and reference checking of staff to be engaged in their departments, was not unique to the Applicant. It was a directive to all heads of schools. It was not unreasonable and had very sound operational and financial reasons underpinning it.

The Applicant accepted in her oral evidence that teachers volunteer a lot of extra time to carry out extracurricular work. The Applicant agreed that in relation to a request from Mr Peach on 2 June 2022 that she take the relief phone that someone else was found to do it and that it was not part of her normal responsibilities.

The Applicant had also raised additional responsibilities in the areas of Outside School Hours Care (OSHC) Relief Coordination, Question &Answer sessions, and School Tours and Student Registrar functions. The Applicant agreed that Ms Joanne Weir was the Relief Co-ordinator for periods of time in 2020 and in 2021 Mr Peach removed the requirement that Ms Weir report to the Applicant, and that responsibility was removed from the Applicant. The Applicant agreed Katrina Minchin was the Relief Co-ordinator from January 2021 to December 2021, and for six months from February 2022 to July 2022 Rebecca White took over that role. The Applicant said there were two weeks at the start of the year when she fulfilled this role. It was put to the Applicant that after Ms White left in mid July 2022 until 8 August 2022 everyone had to pitch in to help cover relief coordination and she accepted that, and another employee was engaged to take that role on from then until December 2022. The Applicant agreed Amber Blair took that role on in 2023.

The Applicant accepted that the school was looking for someone else to cover the role in the period it was vacant. The Applicant also accepted that she was asked to do a Q&A session on 22 August and agreed that was not something ordinarily in her role. The Applicant also agreed when she was asked to do a tour of the school for parents that was not something ordinarily within her role. The same applied in relation to the student registrar role referred to in the evidence of the Applicant.

The Applicant accepted that her role was a senior leadership role and her performance in the role impacted on others at the school, including other staff. The Applicant accepted Mr Peach never yelled at her, or swore at her or used any vulgar phrases directed at her. The Applicant accepted that she had not previously been the head of school whilst teaching. The Applicant accepted that she had supported a proposal put to the Board for the head of school role to be a full time role out of the classroom. The Applicant agreed that in 2019 the HoCH role was fulltime however the other head of school role was doing two days a week in the classroom. It was put to the Applicant that the current head of school is doing two days a week in the classroom and she said she did not know.

In re-examination the Applicant said the bulk of the tasks listed as having been removed were not entirely removed. The Applicant accepted that Mr Peach did restructure her role. It was put to the Applicant that Mr Peach wanted the Applicant to return to the classroom for 2 days a week because he wanted her to lead from the coalface. The Applicant did not recall that expression but said she was concerned about being back in the classroom for two days a week. It was put to the Applicant that a person in the classroom can engage with the curriculum better if she is delivering the curriculum. The Applicant said she was in the classroom all the time but accepted she was not teaching. The Applicant accepted she could engage directly with students and parents and was better connected to them when teaching two days a week. The Applicant agreed that the HoCH involved extra responsibilities to that of a teacher.

Mr Peach gave evidence that immediately previous to his current role he had been the Deputy Principal at the Inner Montessori School in Balmain, and before that he had been a teacher, Deputy Principal and Principal at the Eleonora Montessori School.

Mr Peach was referred to the employment contract of the Applicant dated 16 December 2019 that had a release time of 32.5 hours and that included the added responsibilities. Mr Peach agreed he was aware that the Applicant had an employment contract specifying 32.5 hours release time. Mr Peach accepted that he did not commit to writing the variation as required by clause 6.9.3 of the EBA however he maintained that he did consult as required by the clause. It was put to him he did not provide evidence of consultation with his statement. Mr Peach maintained he did consult.

Mr Peach did not agree that the change to working two days a week in the classroom increased the Applicant’s workload because he reduced the duties. Mr Peach rejected the proposition that on 15 July 2022 he said to the Applicant and Ms Garwell that they were expected to work 50 to 60 hours a week. Mr Peach said the Applicant had exaggerated the number of times she had been required to fill in for other people.

The Respondent submitted on the evidence, there was no direction by Mr Peach for the Applicant to work any unreasonable hours or do anything beyond the scope of the EBA and the Applicant’s position description. There was no exercise by Mr Peach of any authority beyond that which he was lawfully entitled to do pursuant to the terms the Agreement.

FAILURE TO INVESTIGATE WORKLOAD CONCERNS

The Applicant submitted that Mr Peach was notified on numerous occasions as to concerns the Applicant and other employees had about her unreasonable workload expectations.[24] The Applicant agreed that during her oral evidence that prior to the meeting on 20 July 2022 she did have discussions with Mr Peach about a list of tasks that she conducted on a day to day basis and she agreed that Mr Peach had asked her for that in response to her raising workload concerns. The Applicant accepted that she never provided that list to Mr Peach.

The Respondent submitted Mr Peach took steps to alleviate some of the pressures that the Applicant had complained about by restructuring her role so that several of the tasks that the Applicant complained she was spending too much time on were given to someone else. The Applicant complained that the tasks associated with Relief Coordination; Out of School Hours Coordinator (OSHC) Coordination and conducting parent tours were time-consuming and made her working life in the role of Head of Children’s House difficult. However, when those duties were given to someone else, the Applicant argued that that made little difference. The Respondent submitted that evidence demonstrates that the Applicant’s assertions ought not to be relied on. The Respondent submitted it is disingenuous to argue, as the Applicant does, that these tasks/duties were substantial when it suits her claim to do so, and then argue they were inconsequential when addressing the fact that Mr Peach had delegated them to someone else.

Mr Peach was referred to the evidence of the Applicant regarding a meeting on 11 May 2022, where she claimed to have said words to the effect of “I am feeling rather exhausted. This morning was crazy with absent staff. I wasn’t able to do anything other than arrange and provide cover. This has been happening a lot”. Mr Peach said he did not recall the statement and did not agree it was said.

Mr Peach was referred to the evidence of the Applicant where she claimed to have said to Mr Peach words to the effect of “I am capable of taking on the student support role, Chris, but I’m worried about the workload.” Mr Peach denied that the Applicant said that. Mr Peach appeared to accept that the Applicant did say that she was exhausted and the work had been relentless in a hallway conversation on 24 June 2022. Mr Peach said it was the end of term and everyone was exhausted. Mr Peach said he did not recall the Applicant saying she would need to start at 6am in order to do the relief coordinator role, and asking if she could finish earlier.

Mr Peach was referred to evidence in the statement of the Applicant where she said between March and July 2022 she was required to perform duties of others in the school because of resignations, staff absenteeism and an internal transfer including Student Registrar, Relief Co-ordinator and Children’s House Receptionist and Administrator. Mr Peach said there were exaggerations in the dates, and this is what happens when there are resignations without notice and this is part of leadership. Mr Peach agreed that the HoCH role was expanded to include duties previously part of the Director of Student Support. Mr Peach said it was laughable that this added 10 hours a week to the Applicant’s role.

Mr Peach said the evidence given in paragraphs 31 and 32 of the Applicant’s first statement were outrageous, embellished and exaggerated. Mr Peach said in his first statement that the Applicant very rarely did “on-call teaching” and from his interactions with the Applicant he deduced that she resented him for directing the Applicant to timetable herself for two days a week in the classroom. Mr Peach said there was many occasions when this did not occur and he had to follow it up. Mr Peach said on other occasions the Applicant had run late in preparing the timetable meaning staff did not have timetables until sometime during the week. Mr Peach said it left staff anxious about not knowing their routine. Mr Peach said in an email to the Applicant on Sunday 18 April 2021 he raised the performance issue with the Applicant of schedules going out to late.

The Respondent submitted Mr Peach sought input from the Applicant on numerous occasions by requesting the “busy list”. The Respondent submitted it was plainly false for the Applicant to allege, which she has done, that Mr Peach did not even bother to investigate her assertions as to being very busy. The Respondent submitted that on any reasonable view of the facts of this case, it is open to conclude that Mr Peach was investigating what could be done to address the Applicant’s concerns about workload. However, the Applicant was not forthcoming with the “busy list”. The Applicant also avoided engaging meaningfully with Mr Peach on an analysis of exactly why it was she seemed unable to get done what she was required to get done.

UNREASONABLE PERFORMANCE MANAGEMENT

The Applicant submitted In Mac v Bank of Queensland, the then Vice President Hatcher provided that performance management can be unreasonable management action:

“It is not unknown for performance management techniques to be used as a means to achieve and justify a predetermined outcome of termination of employment. Conceivably, if this occurred, it might be able to be characterised as a series of repeated instances of unreasonable behaviour such as to fall within the first limb of the definition of bullying at work.”[25]

The Applicant submitted Member Dr J D Campbell provides that frameworks and instruments have been created to ensure natural justice:

“I would also recognise that particular administrative action as pertaining to an individual employee are usually taken in accordance with a corporate policy framework and administrative instructions – frameworks and instructions that have been created as a consequence of consultation with staff and others, and often as such provide the context within and the context of a particular administrative action is taken.”[26]

The Applicant submitted in similar circumstances to the present application, the failure of a principal to appropriately follow procedures in the EBA and undertake appropriate investigations into underperformance, it was found to be unreasonable management action:

“It is not correct to characterise the Pathways to Improvement process as something that is not related to underperformance, when plainly it is, or that is informal, when plainly it is not. That approach, which is clear on the evidence to which I have referred, carries with it the risk that proper procedures may not be followed and unfairness may result. Consequently, Pathways to Improvement processes must be carefully and properly conducted in accordance with the applicable procedures to ensure procedural fairness and natural justice for the particular teacher. Furthermore, the procedures specified in the Collective Agreement and the Guidelines, and the right to internal review of related decisions, perform the important additional function of protecting against the arbitrary exercise of power without appropriate accountability.[27]

…

As I have said, it is not established to the reasonable satisfaction standard that Ms Yu was properly apprised of issues concerning her performance and she was not given adequate opportunity to respond to the details of these issues prior to Ms Maguire’s decision in November 2007 to institute a Pathways to Improvement process. To that extent she was denied procedural fairness. Even if these matters were discussed with her by Ms Maguire, Ms Bruce or Mr Anderson, no documentation was produced setting out the evidence concerning Ms Yu’s alleged underperformance.

I am reasonably satisfied that Ms Maguire’s decision concerning Ms Yu’s Pathways to Improvement process was made without proper regard to proper process and adequate documentation concerning Ms Yu’s performance. It appears that Ms Maguire did not consult Mr Anderson about Ms Yu’s performance and the need for a Pathways to Improvement process prior to making her decision late in November 2007. It is not established that Ms Maguire had regard to documentation compiled by Mr Anderson, Ms Yu’s supervisor, or anyone else for that matter, concerning the performance issues that are said to have warranted the initiation of the Pathways to Improvement process. It is not established that adequate documentation concerning Ms Yu’s alleged under-performance in 2007 was compiled. The legal procedures require that Ms Maguire ‘makes the decision regarding the implementation of the Pathways to Improvement process after discussion with the supervisor and assessment of the written documentation and any other evidence’. That did not occur in this case.”[28]

The Applicant submitted Clause 5.3 of the EBA provides for the process that the School needs to follow when reviewing underperformance of a staff member. Relevantly, clause 5.3.2 of the EBA sets out the stages for performance management:

“A formal review for unsatisfactory performance serves two purposes. Most importantly, it provides a further process for genuinely helping the employee improve their conduct, capacity or performance to a satisfactory level and it ensures that legal requirements relating to due process and documentation are complied with. When an employee’s conduct, capacity or performance is unsatisfactory or deficient, the following steps should be undertaken by the employer,

(a) Informal Discussion – The Principal or the delegated staff member should discuss the concerns informally with the relevant employee and give appropriate guidance.

(b) Investigation - A proper investigation of the circumstances should be carried out probably the informal discussion do not provide a successful outcome an investigation may include the following

(i) assessing any relevant documentation, including a personal file, and

(ii) interviewing persons who may have (or should have) of the employee’s performance.

(c) Formal Meeting – If, an appropriate investigation has been carried out, the employer is satisfied that there is substance to the allegation of unsatisfactory performance and wishes to investigate it further, a meeting should be arranged with the employee concerned as soon as practicable. Sufficient details and/or copies of the relevant documentation relating to the allegation/swill at the time of the notification the interview. The employee should be notified of the meeting, which should be confirmed in writing.

Notification should include:

(i) the time and place of the interview,
(ii) the general nature of the matters to be discussed, and

(iii) the employees right to have a person of their choice (including Union representative) present.

At the meeting:
(i) where an employee should have opportunity to have a support person present,
(ii) notes of the meeting should be taken, and
(iii) details of the deficient or unsatisfactory performance or incident should be provided to the employee. This should be in sufficient detail to ennoble to resolve address the issues raised,
(iv) the employee should be given the opportunity to respond to the allegations and to raise any other matters, was employee considers to be relevant. If the employee/employer want time to consider the matters raised, it should be the shortest reasonable time.
(v) The employer and employee should negotiate a time by which standards are to be
achieved.
…”

The Applicant asserts that Mr Peach failed to comply with the majority of his obligations prescribed by the Agreement, specifically:

a. Failure to undertake the Informal Discussion process required by clause 5.3.2 (a) of the EBA:
b. Failure to undertake a proper investigation required by clause 5.3.2 (b) of the EBA;
c. Failure to provide the notice details required for notification of the meeting required by clause 5.3.2 (c) of the EBA;
d. Failure to consider other matters raised by the Applicant in the Formal Meeting required by clause 5.3.2(c)(iv); and
e. Attending the Formal Meeting with a pre-determined outcome without taking the steps required by clause 5.3.2 (d) of the EBA.

The Applicant asserts that such failures in following an industrial instrument in the performance management of an employee cannot be considered reasonable management action caried out in a reasonable way.

Further to the deficiencies in the performance management process, the Applicant says that:

a. Prohibiting the Applicant from returning to work unless a meeting is held about her performance was unreasonable; and

b. The multiple occasions of emailing the Applicant, whilst on sick leave, after hours, demanding that the Applicant attend a performance meeting the day before her scheduled return to work was unreasonable.

The Respondent submitted that on the evidence, there were performance issues and there was nothing unreasonable in the way Mr Peach went about managing those issues with the Applicant. There are no assertions as to shouting or swearing/name calling or any other form of inappropriate behaviour. The Respondent submitted there was nothing inappropriate about Mr Peach seeking to provide some structure around improving the Applicant’s performance by way of the PIP. Especially in circumstances where all the evidence proves that the Applicant was not coping in the role at the time.

The Respondent submitted the evidence of both of the individual parties is that the Applicant was struggling to perform in her role as Head of Children’s House. Despite several years of experience as a teacher, the Applicant was quite new to that leadership role. The Respondent submitted that until Mr Peach arrived as principal on 14 April 2020, the brief experience the Applicant had in that leadership role was subject to limited supervision and had been for a little over a year.

The Respondent submitted prior to then, the Applicant had little in the way of feedback or observations about what she was doing and what was actually part of the HoCH role. The Applicant effectively answered to no one but herself prior to Mr Peach being appointed as Principal. The daily interactions (including observations, inquiries and feedback) with someone dedicated to the task of managing her performance in the role is something the Applicant had never experienced prior to Mr Peach arriving as Principal in April 2020.

The Respondent submitted Mr Peach’s evidence proves that the Applicant’s assertions that no performance issues were raised prior to the July 2022 meeting are untrue. Attachment CP-3 to Mr Peach’s statement is an e-mail chain raising performance issues dated 6 April 2021. This was over a year before the July 2022 meeting that the Applicant now says she was effectively ambushed at by performance allegations. That e-mail to the Applicant from Mr Peach relevantly says:

“This brings us back to an important point raised several times in the past – schedules are going out too late. In previous conversations we have spoken about getting the first draft out in week eight of term prior. With the school closure in week 10 of last term, it would have been the perfect and opportune time to complete these and have them finalised for Term 2 (with TBCs in place for roles we were not sure would be in place – e.g. Sarai for Nelum)”

The Applicant submitted that such a contention is unsound, and that instead CP-3 is an example of the unreasonable conduct that the Applicant complained of namely that:

a.Mr Peach’s email of Tuesday on 6 April 2021 was sent at “16:34” in the afternoon;
b.Instead of following up this email during work hours, he chose to email the Applicant 11 days later at 11:05 am on a Saturday, 17 April 2021;
c.Not satisfied with the response from the Applicant at 11:56 am on the same day, Mr Peach decided to email the Applicant again on Sunday, 18 April 2021 at 6:46 am;
d.Subsequently, the Applicant responded on the same day at 7.23 am.

The Applicant submits if, as the Respondent claims (which is not conceded), the conduct of Mr Peach set out above was evidence of him raising performance issues – the Applicant submits that this conduct, objectively assessed, could not be characterised as reasonable management action taken in a reasonable way. Particularly in circumstances where it was Mr Peach’s failure to follow this matter up during the Applicant’s usual work hours that has led to him emailing the Applicant repeatedly on a weekend.

The Applicant submits another example of the repeated unreasonable conduct of Mr Peach purporting to raise performance issues with the Applicant on a weekend is at paragraph [41] of Mr Peach’s Witness Statement, where he says the following:

“41. Other examples of instances where I raised issues I had with the applicant's performance prior to 20 July 2022 are:
…
(b) 29 May 2022 I emailed the applicant about better planning for events in the future to avoid last minute scrambling to find teachers who can present at those events (see my attachment marked "CP-6").”

The Applicant submits relevantly CP-6 of Mr Peach’s Witness Statement is an email sent from him to the Applicant on Sunday, 29 May at “13:06”.

The Applicant submits that by reason of the examples set out above, the Commission would be satisfied that such repeated, unreasonable conduct over a weekend would cause a risk to the Applicant’s psychological health and would meet the definition of bullying within the meaning of s 789FD of the Act.

The Respondent submitted Mr Peach also provides evidence of having asked the Applicant for the “busy list” on 7 July 2022. Mr Peach’s CP-2 is a diary note of the meeting where the “busy list” was sought.

The Respondent submitted Mr Peach’s evidence is that when he first arrived at the school in Term 2, 2020, he was greeted with a mess involving complaints by parents that had apparently not been managed (relating to bullying behaviour by a child) and a situation that the Applicant had allowed to continue between her and another staff member over rostering, which was part of the Applicant’s role.

The Respondent submitted it is also important to note that one of the first things Mr Peach noticed when he took over as Principal at the School was that the Applicant spent no time in classrooms and was engaged in effectively a full-time capacity performing a Head of Children’s House role. Mr Peach’s evidence is that, in his experience, the role of Head of Children’s House only required one, maybe two days a week, but certainly no more than three days a week “release” from teaching duties to adequately carry out the leadership duties. The evidence is that Mr Peach first addressed this with the Board. After doing so, Mr Peach exercised his (express) prerogative pursuant to section 6.9.2 of the Montessori School Ltd Enterprise Agreement 2021 (Agreement) to restructure the nature of the Applicant’s role so that it provided for three “release” days per week, not five (two days per week in classrooms).

The Applicant submitted the plain meaning of clause 6.9.2 of the Agreement contemplates that the variations to the structure of HoS may be made from time to time during the life of the Agreement. This cannot be reasonably construed as the Principal having carte blanche ability for the changing of duties and responsibilities. The Applicant submitted further to this, clause 5.5 of the Agreement requires Mr Peach to consult with the Applicant pursuant to the terms of that clause in circumstances where Mr Peach:

a.altered the Applicant’s hours of work;
b.restructured the Applicant’s job.

The Applicant submitted as such, any contemplated variation that is sought to be implanted utilising clause 6.9.2 of the Agreement , must be read as being limited by the consultation provisions set out in clause 5.5 of the Agreement.

The Respondent submitted Mr Peach’s evidence includes that he had communicated to the Applicant on several occasions that he held concerns regarding her performance. The Respondent submitted that there is nothing unreasonable about that or the way in which Mr Peach communicated those concerns to the Applicant. Mr Peach’s evidence is that he regularly spoke to the Applicant during their weekly principal/Head of Children’s House meetings about ways the Applicant needed to improve her performance. Mr Peach’s evidence also includes that he discussed with the Applicant staff survey results that Mr Peach told the Applicant contained areas of performance that the Applicant needed to improve in.

The Respondent submitted the tipping point for this matter appears to be the introduction by Mr Peach of a structured process for improving performance. Namely, the performance improvement plan (PIP). It was submitted there is nothing unreasonable about a manager seeking to introduce some structure to how a person can improve their performance, and by when. In fact, it would be quite unfair and unreasonable to not bring some structure to what was apparently a concept that the Applicant struggled to deal with. Namely, the true nature and scope of the Head of Children’s House role.

The Respondent submitted Mr Peach has also put on evidence in relation to the 20 July 2022 performance meeting. The Applicant’s assertion is that she was given no indication of what was to be discussed at the meeting, but the e-mail inviting the Applicant to the meeting says that “the meeting is to discuss your performance in your role as Head of Children’s House.” The Respondent submitted that it is hard to imagine a way in which Mr Peach could have made it any clearer that the meeting was to discuss the Applicant’s performance in her role as Head of Children’s House other than by saying (in writing) that “the meeting is to discuss your performance in your role as the Head of Children’s House”.

The Respondent submitted Mr Peach’s evidence proves that he raised a significant number of specific examples of underperformance during this meeting. It was contended there is nothing unreasonable about his doing so. Nor is it asserted by the Applicant that there was anything unreasonable in the manner in which Mr Peach went about raising those issues. There is no allegation of shouting, for example. There is no allegation of belittling or verbal/emotional abuse. It is not alleged that Mr Peach was disrespectful towards the Applicant in any way either. The Respondent submitted that on the evidence, the primary issue the Applicant had with the raising of these performance issues was that she refused to take responsibility for them (which is a significant part of the problem on Mr Peach’s evidence). Further, the Respondent submitted on that evidence, there is nothing unreasonable about the way in which Mr Peach behaved. Mr Peach’s evidence proves that the main issue was the Applicant’s ongoing inability to grasp, or accept, just what was required to adequately perform the Head of Children’s House role.

The Applicant accepted that it was part of Mr Peach’s role to raise any performance issues with her. The 2021 Children’s House Survey Feedback and 2022 Children’s House Survey Feedback was provided as attachments to the second statement of Mr Peach. The Respondent submitted that it did not rely on this material for a hearsay purpose but to demonstrate that issues were raised with the Applicant, and how Mr Peach conducted himself in raising those issues.

Mr Peach said in his second statement that he had spoken to the Applicant about things he was concerned about that she was not doing to a standard needed, but she would never accept there was a shortcoming. He said sometimes the Applicant would agree to engage with him on the topic but would never follow through. He said his request for the ‘busy list’ never came through. Mr Peach said he began to consider some sought of a formal process at around the time he started receiving several complaints from staff in Term 2 of 2022, either about the Applicant directly, or about things the Applicant was responsible for overseeing that were not being done.

Mr Peach said that he was concerned not just about the complaints he was receiving from staff but also about the feedback received each year in the staff survey in relation to question 34 – areas to improve for the Head of Children’s House. He said the feedback he was referring to was the Applicant being said to be too busy, that there were time management issues, that the Applicant was not responding to staff concerns or spending time with staff, or time in the classrooms.

Mr Peach said on 14 June 2022, he received an anonymous letter written by the Children’s House Class Directors, asking to meet. He said from what he heard at the meeting, he confirmed the view that he held at the time that there was in fact many duties of the HoCH role that the Applicant was just not carrying out. Mr Peach said that was the clearest point in time that he recalled thinking that his having polite chats with the Applicant was not working and that he needed to escalate to a formal process to manage the Applicant’s performance. He said he decided to prepare a PIP.

The Applicant was taken to the 2021 Childrens House Survey Feedback and she claimed during her oral evidence that she had not seen the document before. It was put to the Applicant that Mr Peach showed them to her and tried to discuss them with her. The Applicant denied that. It was put to the Applicant that Mr Peach says he showed the results to her on his computer screen in his office. The Applicant agreed she did meet for a weekly meeting with Mr Peach in his office.

The Applicant submitted that attachment to Mr Peach’s evidence concerning the survey results contained inadmissible hearsay, the identity of the Respondent’s to the survey is unknown and the primary data source relied upon to make the representations in the PowerPoint slides is not attached. The Applicant submitted in the alternative that the content is of little probative value and ought to be given little weight.

The Applicant agreed that Mr Peach read the PIP document to her at a meeting on 20 July 2022. The Applicant said at the time Mr Peach began to read the PIP to her she went into a bit of shock. The Applicant said she did not believe she had reached the point of being at that stage. The Applicant accepted she should have notice of performance issues. The Applicant said she was listening but may not have retained everything that was said.

The Applicant agreed that she took personal leave from 3 August to 12 August, and from 15 August to 19 August 2022. The Applicant agreed that she had not provided any specific information for the leave other than that she was unwell, and had provided medical certificates to that effect. The Applicant agreed that on Sunday 21 August 2022 at 6.22pm she emailed all staff that she was returning to work the next day. The Applicant said she then sent a second email seeking an extension of time to respond to the issues from the PIP meeting of 20 July 2022. The Applicant agreed that Mr Peach sent to an email to her on 24 August proposing a meeting where the Applicant could respond to the performance concerns raised with her on Wednesday 27 July, at 8.30am on Thursday 25 August.

The Applicant agreed that she asked for more time and the meeting was rescheduled to 26 August. The Applicant agreed that her next step was to instruct her lawyers to write to Mr Peach proposing to put the PIP off and review her job. The Applicant agreed that she did not attend a meeting with Mr Peach on 25 or 26 August concerning the PIP. The Applicant agreed that her position was the job was too big to perform in the time she had.

The Applicant was directed to email correspondence of 9 September 2022 at 4.48pm where Mr Peach directed the Applicant to attend a meeting with him on Monday 12 September 2022, and also said this would be a preliminary meeting and will set dates and times for the PIP. The Applicant agreed that Mr Peach was asking to meet before she returned to active duty. The Applicant agreed the meeting on 12 September did not proceed and that she had sent an email saying she was off sick. The Applicant agreed that was the last week of the term followed by two weeks of school holidays meaning she would be off work until the end of September 2023.

The Applicant agreed that on 30 September 2022 Mr Peach again asked for a medical clearance before returning to work, and again asked for a PIP meeting this time for 4 October 2022. The Applicant agreed that she again asked for more time because her support person was unavailable at that time. The Applicant agreed that Mr Peach then to reset the date to meet with the Applicant concerning the PIP to 10 October 2022. The Applicant agreed she did not meet with Mr Peach on 10 October 2022 and said she was on leave.

Mr Peach accepted that clause 5.3.2(a) of the Agreement required him to have an informal discussion, and that clause 5.3.2(b) required an investigation. Mr Peach accepted that the meeting with the Applicant on 27 July 2023, was a meeting under clause 5.3.2(c).

Mr Peach was referred to his first statement at paragraph 15 where he states as follows:

“That last element, the amount of time the applicant spent actively engaged in work, was something I spoke to the applicant about several times. The applicant would often say she was very busy in response to an issue or oversight that had occurred. When I started questioning and analysing why the applicant was so busy, she would deflect and not engage with me on it. On Thursday 7 July 2022 I asked the applicant to set out for me a list of tasks that she had to do regularly which made her so busy, which is what has become known as the “busy list”. I never received the busy list, despite my asking for it on several occasions…”

Mr Peach provided a copy of his diary notes of the meeting on 7 July 2022 which included the following:

“-Met to discuss CH Directors letter of 14/6 & 16/6
-Jodie said her workload was high, Chris asked Jodie to write down a list of her tasks/duties so that we could better understand & support this workload, if it was too high?..”

Mr Peach said he followed up asking for the busy list on 15 July 2022. He accepted he did not have a diary note of that. It was put to him that it was not noted in the PIP that he requested the busy list on 15 July. He accepted that but he said he did request it on 15 July.

Mr Peach said the informal discussions (referred to clause 5.3.2(a) of the enterprise agreement) occurred throughout 2020 and 2021. It was put to Mr Peach later during his evidence that he had not provided diary notes of any informal discussions. He said had had weekly agendas he had specific things that are all mapped out. He disagreed that the discussions never occurred.

It was put to Mr Peach that he had not conducted an investigation pursuant to clause 5.3.2(b) of the Agreement. Mr Peach said he did not have the list, and without it, it is difficult to conduct an investigation. He said he had not provided evidence of investigating the particular issue of the busy list. However, he said there were investigations in parts of the PIP. Mr Peach said he had exhausted all avenues. Mr Peach later said that the roster was not sent to him, and it needs to be sent at specific time, in reference to his evidence that the Applicant failed to produce rosters as she was required to do on time causing issues for staff. He did not accept that he did not conduct an investigation.

Mr Peach gave evidence that other instances of him raising issues with the Applicant’s prior to 20 July 2022 are on 13 June 2022 concerning school reports not being uploaded as directed. It was put to Mr Peach that he did not provide a diary note following this issue up with the Applicant and there is no evidence he investigated it. Mr Peach’s evidence was to the effect that it was clear it was not done.

Mr Peach said on 29 May 2022 he emailed the Applicant about better planning for events in the future to avoid last minute scrambling to find teachers who can present at events. It was put to Mr Peach that he was emailing the Applicant on a Sunday and he accepted he would not do that in the future however maintained it was one of many performance issues.

Mr Peach was referred to a letter he had described as an anonymous letter that was placed in his pigeon hole at work that read as follows:

“14 June 2022

To Jodie and Chris,
This letter is written on behalf of the Children’s House 3-6 Class Directors, in relation to ongoing concerns and topics which we would like to discuss and find resolution to.
We would like to schedule a meeting with yourselves and the Children’s House Directors, in which we would like to review and find possible resolutions for the issues we raise. These are in relation to:
-staffing arrangements, lunch/breaks and afternoon staffing
-Documentation
-Student Support
-Communication
-Relationship with management
We understand and appreciate that all Brisbane Montessori School Staff, and members of the Senior Leadership Team, are working hard in a number of areas to provide a wonderful learning environment for our students. However, there are topics which arise regularly in our reflective discussions at all levels, including plane, whole school, and class/pod meetings.
As a team we feel that we are unable to work effectively, efficiently or to the best of our potential, without some solutions being implemented to support these issues.
We look forward to hearing from you both about a time that would be suitable to meet. We request that this meeting occur after 3:15pm, so as not to be rushed.
Sincerely,
Children’s House 3-6 Directors.”

Mr Peach said this letter was one of the reasons that he decided to develop a PIP for the Applicant. The email he sent in response to the Children’s House Directors included advice that if the issues were to do with an individual he hoped they have discussed the matters raised with Ms Bain, as per the Complaints and Grievance Handling Policy. Mr Peach said if this is the case and matters remain unresolved, he was happy to meet individually with Class Directors so that he was able to get a better understanding of the specifics.

Mr Peach agreed that staff did not proceed to bring a grievance in relation to the Applicant. He agreed a meeting proceeded on 12 July 2022. Mr Peach was referred to the part of the minutes that record a suggestion that the role of the HoCH was too big, and his comments referencing roles that had been taken away from the HoCH. It was put to Mr Peach that despite the minutes recording that the Applicant was to work on her prioritisation and leadership skills that he did not say that in the meeting. Mr Peach said it was in the minutes and insisted that he did say it.

Mr Peach described five days (per week) of release as obscene and that he has been at two other Montessori Schools and there had never been that relief time, and it is one or two days. Mr Peach said he determined that is not how they were going to run the school and he spoke to the Board Chair about it and it was confirmed it was his delegation. Mr Peach said the issue was about finance as well, and the school can’t have five day relief positions for Heads of School. He said to do their job professionally they need to understand what was going on in the classroom.

It was put to Mr Peach that at the meeting staff wanted him to spend more time in the classroom. Mr Peach said staff were targeting the Applicant, but they wanted him to get around more. It was put to Mr Peach that sending out the minutes was unreasonable and undermined the Applicant as a leader. Mr Peach disagreed.

Mr Peach sent an email to the Applicant on 20 July 2022 inviting her to a meeting to discuss her performance, and that she was welcome to bring a support person. He accepted the email did not say he wanted to meet with the Applicant in accordance with clause 5.3.2(c) of the Agreement.

Mr Peach agreed that he said the meeting on 27 July 2023 was intended to be a meeting under clause 5.3.2(c) of the Agreement. Mr Peach said the notes taken by the note taker Ms Nos were more accurate than the notes taken by the Applicant’s support person her husband Mr Ferris. The minutes were emailed to the Applicant on 28 July and included the following:

“…

2. ‘Identified areas of development for Jodie (factual/perceived information provided from various sources)
a. Complaints from staff in the last 6 weeks

1. Deadlines not being met
e.g transition letter sent to parents late. CH Class Director reports deadline not met, request from Principal for “busy work” dot point list not met, “Other Events” calendar coordination not met.
2. Induction, onboarding and support staff is not adequate
e.g not initiated/completed for Lucy Reynolds, staff generally feel unsupported and unheard, too busy to support team (recurring theme)
3. Curriculum direction is not clear
e.g lacking direction and understanding of expectations (raised at the CH Class Directors Meeting), Principal facilitated Plane Meeting on Tuesday 19 July and it was evident staff were confused about the expectations around curriculum

b. CH Class Directors letter and subsequent meeting on Tuesday 12/7

1. Induction, onboarding and support of staff is not adequate
e.g Jodie is too busy to support the team (comment at meeting), staff request for Jodie to do a walk around each day to check-in

2. Communication/Organisation needs improvement
e.g communications often rushed, planning deadlines not met (event coordination, transitions, Other Events allocation for Class Directors, enrolments process, training and support re systems such as Transparent Classroom)

c. Staff and Parent survey feedback (July 2022) in response to the question “What are the greatest improvement areas for the Head of Children’s House?” – recurring theme

1. Busyness – Jodie is vey busy
e.g a) too busy to be polite or approachable; b) never has time – always too busy to listen to staff and does not follow through with matters she says she will; c) her “busyness” – therefore time management and leadership understanding and perspective to never say those words; d) balance – time worked for actual work done; e) she should not be telling us she can’t speak, she’s too busy or has to fetch her boys.
2. Organisation needs improvement
e.g a) lives in the moment and seems unable to forward plan; b) deflects problems/concerns addressed with her and sometimes avoids dealing with them at all; c) disorganised, not proactive; d) not creating opportunities for things to be discussed professionally; e) organisation so we aren’t being informed at the last minute, this pertains right across the board – forms, requests, reports, emails, her whole job in essence; f) responding to emails and other communication in a timely fashion; g) completing matters ahead of required dates so that teaching staff are not apologising to parents for late information.
3. Communication needs improvement
e.g a) responding to staff in an appropriate manner; b) ensuring all changes with routine or staffing are communicated as soon as possible; c) relationship building through daily check-ins with staff; d) communication for staff and also staff to her; e) poor communication – this is a huge problem for everyone; f) lack of communication about day to day issues that arise; g) poor communication and relationship skills; h) cannot do conflict resolution at all.
4. Professionalism/leadership challenges/failings
e.g a) has favourites among the staff; b) can disclose personal information to other staff members; c) generally can’t keep up with the demands of the job; d) listening to the concerns of the staff and responding; e) making the right decision rather than the popular one; f) fairness and equity for all regardless of position; g) need to micromanage is also apparent and leads to a team lacking in confidence; h) being confidential and personal information.
d. Request to former Children’s House Receptionist and Administration Officer to review Position Description

Included in the list of duties was the following information (are these part of the CH Receptionist and Administration Officer role?)
*Completing tasks required for Jodie
- Purchase orders
- Staff communication
- Setting up meetings
- Contacting families for ongoing purposes
- Viewing daily weather

Support for Jodie
Chris identified that there are areas of Jodie’s leadership that require development and a Performance Improvement Plan (PIP) will support this development. Chris had a PIP drafted and was anticipating collaboration at this meeting. We can develop the PIP when we meet again and when Jodie has had an opportunity to reflect on the above facts / perceptions of her leadership and we discuss matters further.
Chris: I am not looking for error. I am looking to support you. There are some areas for us to work together on. Between 27 July, 6 week-block, week 3 – week 9, review meeting 7 September was the original suggestion but this will need to be pushed back until we next meet and redraft a PIP.
Next steps
Jodie to review minutes and respond in writing to 2. Identified areas of development for Jodie (by Tuesday 9 August). Further discussion at next meeting (Wednesday 10 August) with a view to implement a PIP to support Jodie’s leadership development.”
The Applicant said in her evidence that the minutes were a concern to her as they included 44 examples of performance concerns, contained content that was not discussed at the meeting and omitted key events at the meeting. The Applicant said Mr Peach said to her that if her performance did not improve she would face termination, and admitted that examples of failing performance from anonymous surveys were neither investigated or substantiated. It was put to Mr Peach that he did not have informal discussions or investigate these issues and by failing to do it is was unreasonable for him to have a meeting with the Applicant pursuant to clause 5.3.2(c) of the Agreement. Mr Peach did not accept that.

During cross examination Mr Peach was taken to the minutes and it was put to him that he failed to have informal discussions, or to have investigated the issues identified as performance issues in the minutes. Mr Peach refuted that.

UNREASONABLE TREATMENT WHILST ON PERSONAL LEAVE

The Applicant submitted the National Employment Standards contained within the Act, and clause 4.4 of the Agreement, provide a workplace right for an employee to access personal leave when unfit for work due to illness and/or injury. The Applicant submitted the employer’s policy provides for a general guide as to the management of an employee who is on personal leave. The Applicant submitted the process of managing the personal leave of the Applicant has been unreasonable, because:

a. Emails have been sent by Mr Peach to the Applicant outside of regular school hours;[29]

b. Mr Peach continued to performance manage the Applicant whilst she was on sick leave;[30]

c. the Applicant was excluded from returning to work, despite having worked all day, to obtain a secondary medical certificate from the same doctor;[31]

d. The School failed to make payment of the Applicant’s statutory entitlements to personal cares leave;[32]and

e. Mr Peach required the Applicant to work whilst on personal/carers leave.[33]

The Respondent submitted the request for medical certification before returning to work after a significant absence was entirely reasonable in the circumstances. It was nothing more than an appropriate discharge of the employer’s duty of care to ensure that an employee who has had a significant absence for health reasons was not put in harm’s way by being returned to work without medical clearance. It would be unwise for any employer to not insist on advice from a medical practitioner, which is exactly what Mr Peach did, and in accordance with the relevant policy in place at the time.

The Respondent submitted as to the request for medical certification for ongoing absences, that too was in accordance with policy. The correspondence complained about was simply a reminder to the Applicant that her continued absence, without certification from a medical practitioner, could result in her leave being unpaid. There is nothing inappropriate or unreasonable about the conduct in those circumstances. The Applicant was at home at the time and that is why the correspondence was sent to her personal email address. Not doing so would have resulted in an unexpected cessation of paid leave.

It was put to Mr Peach that the Applicant sent an email to staff of Children’s House at 6.22pm on 21 August 2022 indicating she would be returning to work the next day and that Mr Peach complained he wasn’t consulted about this however he sent the Applicant an email at 7.13pm that evening saying on behalf of the whole Children’s House team how excited they all were to have her back, and they couldn’t wait to see her tomorrow. Mr Peach said he was trying to keep a good culture and positive vibe, and it was an error and a poor response. This was in the context of him sending an email at 12.29pm the following day to the Applicant asking for a medical clearance certifying that she was “ready, willing and able” to return to full duties, and advising her to take paid leave to obtain the medical clearance. He went on in the email to refer to the “show cause process”. It was put to Mr Peach that good management would have been to go and speak with the Applicant rather than send the email. Mr Peach said he was very busy and said in hindsight he could have done that. He did not accept that it was unreasonable to have sent the email rather than to have spoken directly to the Applicant. The Applicant’s evidence was she did not receive this email until 6.22pm that evening when reviewing work emails.

It was put to Mr Peach that he said that the PIP was in draft form however this contradicts referring to it as a show cause process. Mr Peach said it should say “PIP” and he said it was an error, and a mistake. Mr Peach was also asked about the reference to section 387(d) in his correspondence and his evidence was to the effect that he took advice on the drafting of the letter, and he did not understand himself that the reference pertained to a consideration in relation to whether a dismissal is unfair under the Act.

It was also put to Mr Peach that his email of 25 August 2022 at 6.27am where he states that before the Applicant can return to actual duty she must meet with him to respond to the performance concerns, in the context of not having corrected the reference to a show cause process in his earlier correspondence, and the Applicant’s earlier email indicating she was exasperated and concerned, was unreasonable. Mr Peach said he was trying to organise a process, being the PIP process.

On 6 September the Applicant’s solicitors Saines Legal sent correspondence to Mr Blunt as Chair of the Board of Directors of the School setting out a range of concerns on behalf of the Applicant, including in relation to her workload, and the proposed performance process and the PIP. The letter proposed that the excessive workload was unreasonable and created a risk to the Applicant’s health and safety, and that it is unreasonable management action to force the Applicant into a PIP when the workload concerns had not been dealt with. On 9 September Employer Services responded to Saines Legal on behalf the School noting the threat of a bullying application to the FWC and advising the School will defend its actions. The letter went on to advise that Mr Peach would set a date for the preliminary meeting for the development of a PIP for the Applicant and it was expected that the Applicant attend. The letter stated that the PIP is meant to be a collaborative process and Mr Peach is prepared to fully consider all of the Applicant’s concerns regarding workload. A meeting date was set for 12 September at 2pm. The letter advised that Mr Peach would be writing to the Applicant directly to issue the direction to attend the preliminary meeting.

Mr Peach sent an email to the Applicant at 4.48pm on 9 September directing her to attend the meeting. At 9.32am on 12 September the Applicant sent an email advising that she would be off sick that week and that she would provide a medical certificate. It was put to Mr Peach that emailing the Applicant directly when she was legally represented was unreasonable. He did not agree.

At 11.55am on Friday 30 September before the end of the holiday period Mr Peach sent an email to the Applicant advising that he needed to know the Applicant’s intentions regarding returning to duty in term 4, and reminding the Applicant that she would need a medical clearance and that they would need to meet before the beginning of school on Tuesday 4 October as a preliminary meeting to hear the Applicant’s responses to the various allegations put to the Applicant and to set times and dates for the PIP.

On Monday 3 October 2022, which was a public holiday, the Applicant sent an email to Mr Peach beginning with an apology stating that she knew her periods of illness over the last couple of months had put pressure on everyone. The Applicant expressed that she was saddened by what she perceived was a lack of support from Mr Peach, and advising that her husband, who is her support person, needed more notice in order to attend and asking that Mr Peach started to work with them to coordinate meeting times. Mr Peach responded at 12.16pm on the Monday stating that he was unclear on the Applicant’s intentions and if she was unable to attend work on Tuesday she would need to provide a medical certificate.

On 7 October 2022 Mr Peach wrote to the Applicant reminding her that she will require a full medical clearance to return to work and that if she intended to return they must meet sometime on Monday 10 October as a preliminary meeting to her response to the various allegations put to her and to set dates and times for the PIP. The Applicant did not return to work. The Applicant filed the application that is the subject of this decision on 9 November 2022. The Applicant also filed a workers compensation claim.

INTERIM AGREEMENT

On 3 May 2023 an Interim Agreement referred to above was reached between the parties and was read into the Commission transcript. The interim agreement as provided by the transcript was as follows:[34]

“The parties are committed to attempting to resolve this dispute before the matter is required to be heard by the Fair Work Commission and/or a final decision is made by the Fair Work Commission:

(1) the parties have agreed to take the following good faith steps in an attempt to resolve this matter amicably;

(a) the performance improvement process will be discarded;

(b) a third-party, qualified organisational psychologist (to be agreed between the parties) (1) will be engaged to provide

(i) mediation between Ms Bain and Mr Peach (initially three sessions); (2) other sessions as required;

(ii) to be funded by the Brisbane Montessori School;

(c) no later than week eight, term 2, a third-party, qualified professional (to be agreed between the parties) will be engaged to undertake a workload (time and motions study) into Ms Bain's current workload concerns. These services are to be funded by the Brisbane Montessori School;

(d) on receipt of the work load report the parties will
(i) if excessive work load engage in good faith discussions to reduce the work load of Ms Bain to an acceptable and safe level, taking into account the needs of Ms Bain, Mr Peach and the Brisbane Montessori School;
(ii) if work load appropriate, Mr Peach will work with Ms Bain to provide the appropriate coaching and training necessary to give Ms Bain a reasonable opportunity to succeed in any areas required;

(e) Ms Bain will return to work as follows:

(i) a gradual return to work from week 6 of term 2, (1) on a schedule agreed between Ms Bain and Mr Peach (paid only for hours worked); (2) in consultation with the organisational psychologist and (3) Ms Bain's treating GP;

(ii) in term 3 Ms Bain will return to her substantive full-time duties;
(iii) until point (1)(d) is completed the duties of Ms Bain will be agreed between Ms Bain and Mr Peach with the organisational psychologist aiding in those discussions and finally
(2), matter SO2022/553 will be adjourned until the above steps have been undertaken or until a party makes an application for this matter to be brought on for directions.”

As noted above, on 8 June 2023, my chambers received an email from the Applicant’s representative noting that the matter had not been resolved by way of the interim agreement and requested that the matter be listed for final hearing.

Communications with Mr Peach

The Applicant’s evidence was that on 15 May 2023, she was provided with a medical certificate advising that she could return to the School on a graduated return to work plan.

The Applicant said that on 18 May 2023, she wrote to Mr Peach advising that she was fit to participate in the return to work plan set out in the Interim Agreement and attached the medical certificate of 15 May 2023.

On 19 May 2023, the Applicant said she received correspondence from Mr Peach in reply to her email about her return to work. This read:

“Dear Jodie,
Thank you for your email.
Unfortunately, and as I understand, the arrangements for the interim agreement are not complete.
…”

Organisational Psychologist

The Applicant’s evidence was that on 30 May 2023, she was contacted by Dr Jason Wessel, the agreed organisational psychologist. During her conversation with Dr Wessel they organised an initial meeting on 1 June 2023 and a mediation between Mr Peach, Dr Wessel and herself on 2 June 2023.

It was the Applicant’s evidence that later on 30 May 2023 Dr Wessel contacted her to inform her that Mr Peach and the School would not be participating in a mediation at this point in time and the Applicant requested that Dr Wessel write to her with this information.

On 30 May 2023, the Applicant stated she received correspondence from Dr Wessel regarding the cancellation of the proposed initial meeting and mediation.

End of Interim Agreement

The Applicant stated that as at 8 June 2023, the Interim Agreement failed as a result of the School’s and Mr Peach’s conduct being:

·   Clause 1(b)(i)(1): Mr Peach’s failure to participate in mediation;
·   Clause 1(c): the appointment of Mr Robertson without agreement; and
·   Clause 1(e): the failure to allow the Applicant to return to a graduated return to work from week 6 of term 2.

Return to work 12 June 2023

On 12 June 2023 at 8:15am, the Applicant said she attended for work. The Applicant said she walked from her car to her office, and during her walk she had conversation with a number of staff members, placed her lunch in the fridge and clocked in. On arrival at the office, the Applicant said that she was not able to enter her office as Carolyn Saunders was in her office conducting a parent interview. The Applicant said she placed her belongings behind the reception desk.

The Applicant stated that she could see Ms Tanya Nos (Executive Assistant) near the entrance of the school and made her way out to see her. By the time she was near Ms Nos, the Applicant said she noticed Mr Peach approaching from the main carpark. The Applicant said when he arrived, she said hello and handed him a copy of the medical clearance. The Applicant’s evidence was that Mr Peach on receipt of the medical certificate said words to the effect of:

CP: I will look at this later... I will call you later
CP: Tanya can you come and be witness to this?

The Applicant’s evidence was that the following conversation then occurred or words to this effect:

JB: That is a doctor's certificate clearing me to return to work, I am really happy to be back. I was hoping to do some observations in the classrooms today. Would that be okay?

CP: No, you cannot go into the classrooms. I did not know anything about your return.

JB: Chris I am ready to work and will do so with the utmost professionalism.

CP: Thank you but I am the principal and I have not authorised your return. I will call you later.

JB: Are you asking me to leave
CP: Yes.
JB: So you are asking me to leave the school grounds?
CP: Yes.

The Applicant stated she then walked back to the office, had a conversation with Ms Ashleigh Irwin on the way and was met by Ms Donna Marsden (Business Manager) at the staff room door. The Applicant said she then had the following exchange with Ms Marsden:

DM: I am sorry Jodie but I have to ask you to leave.
JB: I know. I just need to sign out and collect my lunch.
JB: Are you going to escort me to my car?
DB: Yes.... Jodes, you just have to follow the process.
JB: Okay my car is in the staff carpark

The Applicant stated she collected her things and Ms Marsden escorted her to her car and they spoke about their families. The Applicant’s evidence was that the conversation ended with Ms Marsden saying words to the effect of ‘Just follow the process … just follow the process’.

The Applicant agreed that she hadn’t been at work since 3 August 2022 which was about 10 months at the time of giving her evidence at the hearing. The Applicant agreed she made a workers compensation claim for psychological injury citing what she believed was the management of Mr Peach of her as the reason for her injury. The Applicant accepted that upon her return there was the PIP meeting itself and four further occasions where Mr Peach had sought to meet with her about the PIP on her returning to work.

His previous employment includes as a Director of Operations, Independent Schools Queensland, Director (Strategic & Government Relations), Independent Schools Queensland and Executive Director, Independent Schools Queensland.

There was considerable disputation as to whether the Commission should admit the statement and report of Mr Robertson. The Applicant argued that Mr Robertson’s evidence was not relevant, as it does not rationally affect the assessment of the probability of Mr Peach repeatedly behaved unreasonably toward the Applicant, created a risk to her health and safety, and that there is a risk that the Applicant will continue to be bullied. The Applicant submitted that the Respondent failed to demonstrate that Mr Robertson was an expert, and his statement contains inadmissible hearsay and opinion evidence and should not be admitted and if it is it should be afforded no weight. The Applicant also submitted that Mr Robertson never interviewed the Applicant. The Applicant submitted that Mr Robertson was partisan, and the report was obtained by the Respondent to seek to bolster its case.

Mr Robertson agreed he didn’t have qualifications in industrial relations or law. It was put to Mr Robertson that he has never conducted a time in motion study. Mr Robertson said he has conducted many studies of staff in schools in his 33 years of involvement in independent schools. Mr Robertson accepted that he has never been a teacher. Mr Robertson said he has spent lots of time in classrooms but not teaching. He accepted he had not observed the work of the Applicant.

The methodology in the report said it included a review of relevant documentation, observations of Children’s House and discussions with various staff. Under a heading of ‘Process’ various steps are set out. Mr Robertson agreed he did not provide with his report the primary materials he refers to in his report, for example positions descriptions at other schools. He agreed that he did not interview the Applicant. Mr Robertson accepted that the notes he provided in response to the Commission order for production of material in relation to his report did not identify who was interviewed, or the questions asked or the answers provided or the length of the interviews. Mr Robertson said he interviewed Mr Peach and the acting HoCH. He said he interviewed another teacher but could not recall their name. Mr Robertson said he also spoke to the Head of Senior School for about 15 minutes but did not take notes of that meeting.

Mr Robertson said he spent a couple of hours in the classroom. He agreed he had been reliant on what other people said in terms how long tasks took, as well as his own judgement. He said he spent an hour with the Principal. He did not agree he needed to observe people doing the actual work and he could rely on his judgement. He agreed he has never been an employee of a school.

CLOSING SUBMISSIONS AND CONSIDERATION

The Applicant submits that the Commission should be satisfied there has been repeated unreasonable behaviour on the part of Mr Peach and there is a future risk to health and safety if orders are not made. The Applicant maintains the only mechanism to prevent future bullying is an order of the Commission. The Applicant relies on the decision of Deputy President Gostencnik in Purcell v Farah[38] to support a submission that the Commissions power to make orders is broad.

The Applicant seeks the following orders from the Commission:

a)That the Respondent immediately cease the performance management of Ms Bain commenced by Mr Peach on 27 July 2022.
b)That Mr Peach and the Board of the Montessori School Limited be required to undertake training regarding the prevention of workplace bullying within 2 months of this order being made.

c)That the Montessori School Limited and Mr Peach be permanently restrained from breaching the terms of Ms Bain’s employment contract dated 16 December 2019 in circumstances where the parties continue to be bound by such terms.

d)That Ms Bain is to return to the duties she performed as Head of Children’s House prior to the direction given by Mr Peach in January 2021 for Ms Bain to return to the classroom for two days per week.

e)That the Montessori School Limited or Mr Peach must not contact Ms Bain via email, telephone, sms or any other like method regarding performance related matters outside of Ms Bain’s ordinary hours of work, including, but not limited to:

i.weekends; and
ii.during periods of leave.

f)Prior to any future performance management be undertaken, Mr Peach is required to:
i.particularise the relevant performance issues in writing; and
ii.pursuant to clause 5.3.2 of the Montessori School Ltd Enterprise Agreement 2021 (EA), discuss the concerns informally with Ms Bain and give appropriate guidance; and
iii.follow the steps set out in clause 5.3 Review for Unsatisfactory Performance of the EA.

g)That the following occur:
i.That an independent third party be engaged to undertake an assessment (workload assessment) of the tasks required to be performed by Ms Bain pursuant to the terms of her employment contract and the EA to determine if these tasks can reasonably be performed during her ordinary hours of work.
ii.That the independent third party is to be agreed between Ms Bain and Montessori School Limited, in circumstances where agreement will not be unreasonably withheld by either party.
iii.That the workload assessment be undertaken with 3 months of this order being made.
iv.Pursuant to the findings of the workload assessment, the Montessori School Limited will take all necessary steps to ensure that work allocated to Ms Bain can be completed during her ordinary working hours pursuant to employment contract and the EA.

The Applicant submitted the order sought in relation to the performance issue is appropriate because the relevant terms of the Enterprise Agreement were not complied with, and in those circumstances the Commission should make an order to cease the performance management. It was submitted that the order in relation to requiring Mr Peach and the Board to undertaking bullying training was appropriate, given evidence of Mr Peach in relation to financial constraints indicating the training may be required to ensure conduct doesn’t occur again.

The Applicant submits that Mr Peach agreed that the performance management process was conducted pursuant to clause 5.3.2(c) however there was no evidence that Mr Peach had done the things required to do to get to clause 5.3.2(c) of the clause. The Applicant submitted that Mr Peach relied on clause 6.9.2 to give him the prerogative to direct the Applicant to work in the classroom for 2 days per week, and 6.9.3 sets out a process to be followed if there are variations. The Applicant submits the employment contract is a contract not pursuant to that clause, but in the alternative if the Commission makes a finding that the contract is contemplated by the Enterprise Agreement, the Respondent did not comply with the requirement that any changes be committed to writing.

The Applicant submitted that Mr Peach was aware of the Applicant’s 32.5 hours contractual arrangement to be released from teaching duties and he decided to ignore that, on the basis that he relied on provisions in the Enterprise Agreement that the Applicant submits he was not entitled to rely on, and that was not objectively reasonable.

The Applicant submits that Mr Peach directed her to do something other than what was in her contract. The Respondent referred to recent High Court authorities in Rossato,[39] Jamsek[40] and Personnel Contacting,[41]to say the Applicant’s contract is enforceable and an order requiring the Respondent to comply with the terms of the contract is reasonable.

The Applicant submits that an order (d) requiring that the Applicant be returned to her prior duties prior to January 2021 is appropriate and dovetails into order (c).

The Applicant submitted that the limits in relation to out of work contact as proposed in (e) is appropriate given Mr Peach’s contact with the Applicant at these times, including regarding performance management on weekends and school holidays was inappropriate. The Applicant said this was repeated conduct, and he conceded it was not great. The Applicant said Mr Peach relied on this to support his claim that he had raised issues the Applicant.

The Applicant also submitted the circulation of the minutes of the 12 July 2022 staff meeting before giving the Applicant an opportunity to see them was unreasonable, as was the content of the minutes. The Applicant said they were distributed to people who the Applicant supervised.

The Applicant submitted in relation to the meeting on 27 July 2022 the email of 20 July from Mr Peach did not advise that the meeting was proceedings under clause 5.3.2(c). The Applicant submits in relation to the PIP, that the first time the reference to the ‘busy list’ arose was the diary note of 7 July which did not say this was raised previously, and it was submitted this was the first time this had been raised. The Applicant submits that in relation to disciplinary issues, the Enterprise Agreement terms must be complied with and it was obvious Mr Peach had not had an informal discussion in relation to the issues identified in the PIP pursuant to section 5.3.2(a), or conducted an investigation pursuant to clause 5.3.2(b), and failure to comply with the terms of the Enterprise Agreement is not lawful, and reasonable management action is not available as a defence because employer are required to comply with an enterprise agreement and has not. The Applicant said there was no evidence of these things being done and it was unreasonable conduct.

The Applicant said when the Applicant sent an email to return to the workplace on Sunday 21 August, Mr Peach initially indicated excitement, but the next day sent an email referring to the PIP process as a show cause process and referring to section 387 of the Act. The Applicant submitted it may be the email was drafted by someone else, and Mr Peach did not understand certain things, however the test of unreasonable conduct is an objective test and this was unreasonable conduct given as a Principal he should have found out.

It was submitted that prior to the Applicant being away from the workplace, the Applicant had raised workload issues, and Mr Peach had taken no steps to address that. Further the alleged concerns about her performance is not supported by the Applicant having been made acting Principal. It was submitted that the performance appraisal of the Applicant for May 2021 signed off by the Principal does not support alleged concerns about her.

The Applicant also submits the constant contacting of the Applicant while on sick leave advising that she was required to attend a PIP meeting was also unreasonable behaviour.
The Respondent submitted that in the Applicant’s original submissions there are 5 identifiable limbs to the allegations of bullying:

(1) being the failure to investigate the workload concerns,
(2) the implementation of the performance management process and the management of that process,
(3) the expectation that the Applicant work outside normal hours,
(4) adding the teaching duties, and
(5) duties outside the position description or the enterprise agreement.

The Respondent submitted the case has morphed since then to include conduct on 12 June 2023.

In relation to the first limb, the Respondent denied there was a failure to address workload concerns, and referred to the issue about the ‘busy list’ and the Applicant’s failure to provide it. The Respondent rejected the submission that the Applicant was not evasive during her evidence, submitting that it took quite a while to work out that her denial that any busy list had been requested by Mr Peach, was the phrasing that was used, and she finally admitted that Mr Peach did ask her for the list of things that she does and it was diary noted by Mr Peach on 7 July 2022. I am satisfied from the evidence that Mr Peach asked the Applicant for the busy list and it was not provided.

The Respondent accepted that the Applicant argued with the amount of duties removed from her, but there is no dispute that Mr Peach did remove duties from the Applicant in response to her concerns. The Respondent submitted that the allegation is plainly false, and Mr Peach restructured the HoCH role to give some of the Applicant’s tasks to others including Relief Coordination, OSHC Coordination, Before Montessori Program, After Montessori Program, Vacation Care, School Holiday Program and conducting parent tours. Mr Peach also approved the employment of a Children’s House Receptionist and Administrator. I am satisfied from the evidence that Mr Peach did remove a range of duties as set out above from the Applicant as part of the arrangement for her to return to the classroom for two days a week.

The Respondent submits that Mr Peach asked the Applicant for the list of what she does and that was a responsible manager asking for what she does, and this is evidence (as it pertains to clause 5.3.2(c) of the Enterprise Agreement) that all of these things have been discussed. The Applicant never produced the list, other than in her evidence in this case. In relation to section 5.3.2(b) the Respondent submitted that Mr Peach was very direct in his evidence that these were simple investigations to conduct. For example, the roster that the Applicant was supposed to send out was not sent out. The Respondent submitted that the Applicant’s case that there was not an investigation was an artificial construction of clause 5.3.2 when the issues were such a simple matter. The Respondent submitted that was end of the investigation as it was such a simple matter.

The Respondent says it is clear that Mr Peach did react to the workload concerns, as there was a reaction and investigation, and that allegation cannot be made out. The Respondent submitted that even if it could be made out, it fails the test of what constitutes unreasonable management action. The Respondent submitted that in Mac v Bank of Queensland[42] also a case involving a PIP, and the Applicant in that matter said they were being bullied and the PIP was not appropriate as they were not failing in those areas and relied on their prior performance. The Respondent submitted that the then Vice President Hatcher concluded in Mac v BOQ that unreasonableness is a decision which lacks evident and intelligible justification, and that is the objective test. The relevant paragraph from that decision reads as follows:

“[90] The second observation is that unreasonableness and its converse, reasonableness, are familiar legal concepts applicable in a range of diverse contexts. In Giris Pty Ltd v Federal Commissioner of Taxation Windeyer J said: “It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law...”. Where, in an anti-bullying case such as this one, the requisite repeated unreasonable behaviour towards the workers is said to be constituted by or include unreasonable discretionary managerial decisions directed to that worker, some useful guidance may be obtained in assessing whether the definitional standard in s.789FD(1)(a) is met from decisions concerning judicial review of administrative discretionary decision making. In Minister for Immigration and Citizenship v Li the High Court considered the standard of unreasonableness applicable to such decision-making. The plurality (Hayne, Kiefel and Bell JJ), in considering the well-known formulation of unreasonableness stated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation, that the legal standard of unreasonableness “should not be considered as limited to what is in effect an irrational, if not bizarre, decision - which is to say one that is so unreasonable that no reasonable person could have arrived at it”. They concluded their analysis by saying: “Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”. That formulation provides a useful yardstick for the application of the provision in a case such as this one.”

The Respondent submitted that the ‘objectivity’ is not about whether Mr Peach thinks what he did was reasonable. The Respondent accepted that the Applicant genuinely believes she has been bullied. The Respondent submitted that is not however the test, and again referred to the decision in Mac where the then Vice President also said as follows:

“[100] It is not unknown for performance management techniques to be used as a means to achieve and justify a predetermined outcome of termination of employment. Conceivably, if this occurred, it might be able to be characterised as a series of repeated instances of unreasonable behaviour such as to fall within the first limb of the definition of bullying at work. However Ms Mac did not submit that Ms Hester, Ms Van Den Heuvel, Mr Thompson, Ms Locke or Ms Newman, had either jointly or singly engaged in the PIP process with the pre-determined objective of dismissing her from her employment with BOQ. Certainly no proposition of that nature was either pleaded in the Points of Claim or put to any of those witnesses in cross-examination.”

The evidence tends to support the fact of Mr Peach attempting to engage with the Applicant’s stated concerns about her workload and the Applicant herself being the obstacle to a proper examination of the full extent of her workload.

In relation to the second limb, the implementation of the performance management process and the management of that process, the Respondent submitted that Mr Peach’s evidence was clear that he was not using the PIP for the purpose of dismissing the Applicant. The Respondent submitted that there is no doubt that the use of certain terms such as ‘show cause’ and references to section 387(d) were not helpful, however it was apparent from the evidence of Mr Peach that he viewed the PIP process as an opportunity to address what he saw as deficiencies in the Applicant’s performance, and it was not intended to be some fait accompli managed exit of the Applicant. The Respondent referred to paragraph 102 of the decision in Mac which said as follows:

“[102] To determine whether any of Ms Mac’s explanations fully rebutted the examples of underperformance identified would require a micro-analysis of each relevant event which is simply not possible on the evidence before me. More importantly, I do not consider that an assessment of whether the imposition of the PIP on Ms Mac was unreasonable requires the Commission to engage in the process of attempting to form its own judgment as to whether her overall performance was satisfactory or not and to substitute its judgment for that of the relevant BOQ managers and supervisors. Even if a different and better opinion of Ms Mac’s work performance could legitimately be formed on the evidence before me, that would not be sufficient to show that the decision to introduce the PIP was unreasonable. What is necessary is for Ms Mac to demonstrate that the decision to introduce the PIP lacked any evident and intelligible justification such that it would be considered by a reasonable person to be unreasonable in all the circumstances. For the reasons already stated, Ms Mac has not succeeded in demonstrating this. There was an evident and intelligible justification for the PIP based on the earlier identification by experienced persons who managed or supervised her of shortcomings in her performance and the assessments she received through the documented PDA process.”

As was conceded by the Applicant the ‘busy list’ was not provided despite Mr Peach requesting it. The Respondent submits that the Applicant’s case is built on that fact that she was not performing in the role, but the reason for that was that the role was too big. The Respondent submits that supports its position that there was an intelligible justification for going through the PIP process. Mr Peach gave evidence that on numerous occasions he attempted to discuss these matters with the Applicant and the Applicant would indicate she would but deflected the issues, and the busy list was one example of that.

The Respondent said that Mr Peach then received the anonymous letter containing complaints from staff which Mr Peach indicated that if it pertained to an individual it should be pursued through the grievance process, and eventually a staff meeting was held, and Mr Peach’s evidence was at this point he realised he had to address the issues that the Respondent submitted he had been trying to raise with the Applicant without success and at that stage he decided to move to the PIP process.

The Respondent submits that the email sent prior to the meeting was clear that the meeting was an important meeting about her performance.

I am satisfied that the evidence establishes that Mr Peach had taken reasonable steps to attempt to investigate the basis for the Applicant’s claims about her workload, and that after being frustrated in those attempts by the Applicant’s failure to engage with Mr Peach’s attempts to work with him in regard to both the Applicant’s stated complaints, and Mr Peach’s own concerns about her performance, that there was and intelligible justification for proceeding with a performance management process. I am also inclined to the view having considered all of the evidence that Mr Peach had in fact complied with the steps required by clause 5.3.2 of the Agreement, however to the extent that it may be the case that there was any deficiency in this regard it would not amount to bullying.

In relation to the third limb concerning the expectation that the Applicant worked outside normal hours requirements the Respondent has denied Mr Peach had an unreasonable expectation that the Applicant work outside reasonable hours. The claim was that Mr Peach said that he expected people to work 50 or 60 hours a week. Mr Peach was clear in his evidence that he did not say this, and did not direct and did not convey this expectation to anyone and that he said in response to a comment from the Applicant that she was very busy that it would not surprise him in busy times that teachers do work those sought of hours. The Respondent submitted that the Applicant admitted that she did volunteer a lot of time and in the role. However, this is no evidence in this case of an unreasonable manipulation of duties, or forcing someone to work until midnight for example, such that there was an unintelligible reason for some conduct on the part of Mr Peach in relation to this issue. I am not satisfied having considered all of the evidence as set out above that Mr Peach had stated that he expected staff to work 50 or 60 hours a week, and am more inclined to accept his version that was to the effect that it was not unusual that this occurred in leadership roles, but he was not requiring or directing the Applicant or other staff to work those hours.
In relation to the fourth limb of adding the additional teaching duties roles outside the contract, the Agreement and position descriptions, the Respondent submitted that the Applicant’s case in this regard relies on the contract argument. The Respondent submitted that the starting point is that it is not permissible to contract out of an enterprise agreement, and the enterprise agreement says that the determination of the Head of School structure is the prerogative of the Principal, and variations to the structure may be made from time to time. The Applicant accepted that you cannot avoid obligations pursuant to an enterprise agreement, but you can agree to a contract that is of more benefit than an enterprise agreement and the 32.5 hours non-contact time is more beneficial than the enterprise agreement.

The Respondent pointed out that the evidence of Mr Peach was that it was his understanding that the contract allowed him to vary the hours, and his evidence was that in his mind that was in large part what rationalised the decision to put the Applicant back in the classroom. The Respondent said the Mr Peach used the word ‘obscene’ (in relation to 5 days release from classroom duties) and it was submitted that the Applicant had turned the collection of additional responsibilities into a full time job at $138,000 a year and it fell to him to fix that and he had the power to do it under the enterprise agreement and the contract. The Respondent submitted that clause 6.9.3 of the enterprise agreement says release time may be varied on an annual basis after consultation. Mr Peach gave evidence in his statement and during cross examination that there was consultation about this variation. The Respondent submitted that he did so to the point of frustration. The Respondent submitted that Mr Peach accepted there were things he could have done better, and he made reasonable concessions, including that in retrospect he should have diary noted every conversation he had with the Applicant, trying to gently raise the issue of underperformance. The Applicant submitted that by reason of clause 6.9.3 of the Agreement that the variation would be committed to writing, that the Respondents argument that conduct gives effect to the agreement should not be accepted.

The Respondent submitted that the contract says 32.5 hours release per week and the enterprise agreement says 2 hours per week. The Respondent submitted that it had become a standard that the incumbent in similar roles is released for one or two days per week from teaching duties. The Respondent submitted that the contract of employment calls up the position description which includes the following words; “..the terms stated herein in no way limit or infringe on any other duties that have or may be, assigned to me from time to time…”. The Respondent said the contract provides expressly for variation by agreement, and while the Applicant would say there was no agreement, agreement by performance even grudgingly given, constitutes agreement, and acceptance of the variation and subsequently performing the contract makes it too late to say there was not a variation of the employment contract by agreement because the person didn’t like what they were doing.

The Respondent submitted that it was Mr Peach’s evidence that it was far from ideal that the Applicant not be in the classroom at all from both an operational and financial perspective. Mr Peach said the role in the classroom keeps the person in touch with curriculum, staff, students, and guardians. The Respondent further submitted that the Applicant grudgingly admitted that being in the classroom did make her a better HoCH when it comes to designing curriculum, and keeps her more in touch with staff. The Respondent said for the Applicant to succeed on this issue it would need to prove there was no intelligible justification to move the Applicant back into the classroom. The Respondent submitted Mr Peach’s evidence was that he thought he had the power to do it, and the Respondent’s position was he did have the power to do it both under the enterprise agreement, and the contract, and even if he didn’t the decision still did not lack intelligible justification and therefore did constitute unreasonable management action.

The Respondent referred to the decision in AB[43] which involved a change in position, and an increase in work and the Commission held even an increase in workload does not constitute a decision that does not have an intelligible justification and does not constitute bullying.

The evidence is that the Applicant had been performing the HoCH role with the inclusion of two teachings days per week since January 2021. The enterprise agreement contemplates through clause 6.9 that it is the prerogative of the Principal to determine the Schools HoS structure, and to make variations to it from time to time. Release time is also intended to be a matter that involves consultation and negotiation however under the enterprise agreement, ultimately the final position is at the prerogative of the Principal. I am inclined to the view that in this case Mr Peach did consult with the Applicant about the change that would require her to spend two days per week in the classroom, and that whilst the Applicant did not like it, the Applicant through her conduct accepted the variation to her contractual arrangements. The Applicant now raises the fact of the variation not being committed to writing as stated in clause 6.9.3 of the enterprise agreement, however that does not have the effect of negating the change that was implemented some 21 months ago. I agree with the view that the Principal had the power under the enterprise agreement to make the change and the requirements of the enterprise agreement were met, with the exception of committing the variation to writing. The employment contract was also varied by agreement with the implementation of the change. However even if that view is incorrect, the implementation of the change does not meet the test of unreasonable behaviour to fall within the definition of bullying at work because the evidence supports the conclusion that Mr Peach had an intelligible justification for implementing the change.

In relation to the fifth limb concerning duties outside the position description or the enterprise agreement, the Respondent argues that when this issue was drilled down into in cross examination it related only to a couple of weeks at the beginning of 2021, and a period of a few weeks in July and August of that year when the incumbent had left, and the circumstances were temporary and isolated and there was an intelligible justification for the decision to require the Applicant to fill in and perform this extra work. The Respondent said that the Applicant’s evidence was that she admitted she was asked to perform a number of things which were not part of her role, and that is evidence that those duties were not the Applicant’s duties and it was not an unreasonable enlarging of her role. It was submitted that the School is not a large school and there will be points in time where leadership positions are just asked to pitch in and help from time to time. The evidence overall supports the position as has been put for Mr Peach that these additional duties were not for extensive periods of time, and were not significant in scale, were shared, and the reason the Applicant was asked to assist was in connection with circumstances that were unforeseen such as resignation. The evidence does not support a conclusion that Mr Peach’s actions in respect to this issue amounted to bullying.

The Respondent said the original case morphed to include allegations of unreasonable behaviour on 12 June 2023 where the Respondent submitted that the Applicant attempted to just slip in by sending an email as she arrived after 10 months absence handing the medical certificate to Mr Peach and saying ‘I am here and I’m going to do something other than what I would ordinarily do and for the fourth time in row I’m not going to try to address the PIP.’ It was submitted that Mr Peach had made clear that the Applicant needed to sit down with Mr Peach and address these issues and it is serious. I do not accept that Mr Peach’s conduct on 12 June 2023 was unreasonable given all of the circumstances and events that had occurred leading up to that date. It was not unreasonable for Mr Peach to have taken the view that he needed more specific information concerning the Applicant’s fitness for work, given the very lengthy period of absence, the Schools obligations under workplace health and safety law in the context of the dispute over the causes of her specific medical diagnosis as had been particularised in her workcover claim.

Disagreement over the conduct of the Time and Motion Study as part of the Interim Agreement

The Applicant submits that orders should be made in connection with the issue of the matters that were intended to be resolved through the Interim Agreement because the parties attempted to make an Interim Agreement to get the relationship back on track, however despite a requirement that the person who was to conduct the time and motion study had to be agreed, when this did not occur, the employer decided to push ahead anyway. The Applicant submitted that the terms of the interim agreement did not require the time and motion study to be completed prior to the Applicant returning to work. The Applicant submitted Mr Peach’s position on this was objectively unreasonable, as his view was that the part of interim agreement concerning the third-party qualified organisation psychologist could not proceed unless the part of the agreement concerning the time and motion study was also agreed. The Applicant submitted that the Interim Agreement contemplated things happening prior to week eight, and this was objectively unreasonable.

I do not accept that Mr Peach’s position was unreasonable in relation to this issue. The evidence disclosed that Mr Peach made repeated attempts to meet with the Applicant in relation to the issues he had wished to pursue with her in relation to the PIP prior to the making of in the Interim Agreement and the Applicant had for various reasons not done so for a very lengthy period of time. Mr Peach had a reasonable basis to be at least suspicious that the Applicant may continue to resist meaningfully engaging with thorough examination of the issues he wished to have independently assessed concerning her workload, after having returned to work. I am also inclined to agree with the Respondent’s view that Mr Robertson would appear to have been better qualified than the party proposed by the Applicant to conduct the time in motion study, and the failure to be able to reach an agreement over the conduct of the time and motion study raised legitimate concerns for the Respondent. I accept it was reasonable for Mr Peach to hold the view as he did that for the Interim Agreement to work it needed to proceed as an agreed package.

Independent Medical Examination

The Applicant submitted that there is no evidence other than what Mr Peach said that he intended to send the Applicant for an IME. The Applicant said Mr Peach was on notice from December 2022 that a workers compensation claim had been made and the nature of the adjustment disorder that was indicated the Applicant was suffering from. The Applicant submitted Mr Peach had been prepared to accept a medical certificate from her general practitioner earlier on, which indicates that the employer did not want the Applicant back in the workplace, and it was unreasonable conduct on the part of Mr Peach to direct the Applicant to go home where he had not previously taken steps to indicate he intended to require the Applicant to attend an IME. For similar reasons to those set out above, I do not accept that it was unreasonable for Mr Peach to have directed the Applicant not to remain at the School on 12 June 2023. It needs to be remembered that the Applicant had as at 12 June 2023 been away from the workplace for a very long time and the particulars concerning the Applicant’s diagnosis and alleged cause of injury as set out in the workcover claim were not know to Mr Peach prior to December 2022.

Evidence of Murphy and Garwell

The Applicant submitted Ms Garwell giving evidence given her position should be given weight. The Respondent submitted no weight should be afforded to the evidence of Ms Garwell as she is clearly bitter that she had failed in pushing back against breaching her contract. Ms Garwell’s contract included a requirement that she complete a specific course within three months, and Ms Garwell did not want to complete this specific course and proposed an alternative approach. Mr Peach’s insistence that she do so was reasonable and not indicative of unreasonable management action on his part. The Respondent submitted that Ms Garwell went behind Mr Peach’s back to a member of the Board.

The Respondent submitted that Mr Murphy’s evidence was to the effect that he had never seen Mr Peach in a room with the Applicant, and his evidence is opinion of propensity and should be given no weight.

I have considered the evidence of Ms Garwell and Mr Murphy and do not intend to afford them any particular weight. I am inclined to view that Ms Garwell’s evidence was coloured by her disappointment at being unable to convince Mr Peach to allow her to conduct a particular course of study in a manner which was to her preference and inconsistent with her contract of employment. Mr Murphy’s could not give any direct evidence of probative value concerning interactions between Mr Peach and the Applicant.

Evidence of Mr Robertson

I am inclined to agree with the Applicant that given a range of difficulties with being able to interrogate the sources of information that are relied upon to support the conclusions in Mr Robertsons report that it would be unsafe to afford it any significant weight and I do not intend to do so. However ultimately I have been satisfied that this matter can be determined without any need to consider that evidence.

CONCLUSION

I have found on the basis of the findings set out above that Mr Peach has not bullied Ms Bain, and on that basis it is not necessary to determine if there is a risk that Ms Bain will continue to be bullied at work by the Mr Peach. As I am not satisfied that Ms Bain was bullied at work, as alleged, there is no power to make any of the orders sought, and the application is dismissed. An order to this effect will be issued separately and concurrently with this decision.

COMMISSIONER

Appearances:

Mr Troy Spence of Counsel instructed by Mr Nigel Saines of Saines Legal for the Applicant.

Mr Dan Pratt of Counsel instructed by Mr Gil Muir of Employer Services for the Respondents.

Hearing details:

2023
Brisbane
25 July & 11 August

[1] Exhibit 1

[2] Exhibit 3

[3] Exhibit 4

[4] Exhibit 5

[5] Exhibit 6

[6] Exhibit 8

[7] Exhibit 9

[8] Exhibit 10

[9] Exhibit 15

[10] Exhibit 11

[11] Exhibit 12

[12] Exhibit 16

[13] Exhibit 13

[14] Exhibit 14

[15] Fair Work Act 2009 (Cth) s789FD(1)(a).

[16] The Parliament of the Commission Wealth of Australia, The House of Representatives, Explanatory

Memorandum to the Fair Work Amendment Bill 2013, par 109.

[17] Ms SB, [2014] FWC 2104, para 4.1

[18] Ibid, para 43.

[19] Amie Mac v Bank of Queensland Limited and Others [2015] FWC 774, para 94.

[20] Saraswati vR (1991) 172 CLR 1 at 7 (McHugh J).

[21] Affidavit – Jodie Bain – 29 March 2023 – Para 12, 15.

[22] Affidavit – Jodie Bain – 29 March 2023 – Para 12, 21.

[23] Affidavit – Jodie Bain – 29 March 2023 – Para 12, 13, 15, 17, 18, 26, 27, 29, 31, 32, 33.

[24] Affidavit – Jodie Bain – 29 March 2023 – Para 36, 57.

[25] Amie Mac v Bank of Queensland Limited and Others [2015] FWC 774, para 100.

[26] Georges and Telstra Corporation Limited [2009] AATA 731 (24 September 2009), para. 23.

[27] Jing Yu v Comcare [2010] AATA 960, 4.

[28] Ibid, 46

[29] Affidavit – Jodie Bain – 29 March 2023 – Para 65(a).

[30] Affidavit – Jodie Bain – 29 March 2023 – Para 50, 53, 60, 61, 63, 75, 78, 79.

[31] Affidavit – Jodie Bain – 29 March 2023 – Para 48.

[32] Affidavit – Jodie Bain – 29 March 2023 – Para 67, 68, 71.

[33] Affidavit – Jodie Bain – 29 March 2023 – Para 51.

[34] Transcript of May 2023 at PN26.

[35] AG-1.

[36] AG-2.

[37] Exhibit 2.

[38] [2016] FWC 2308 para [13].

[39] [2021] HCA 23.

[40] [2022] HCA 2.

[41] [2022] HCA 1 398 ALR 404, 312 IR 1.

[42] [2015] FWC 774.

[43] [2015] FWC 3353.

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