John Herrmann

[2021] FWC 6190

[2021] FWC 6190

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

John Herrmann
(AB2021/10)

COMMISSIONER MCKINNON MELBOURNE, 25 OCTOBER 2021

Application for orders to stop bullying at work – worker absent on workers’ compensation – no risk of continued bullying at work – not bullied at work by named individuals.

[1] John Hermann has been employed as a postal delivery officer by Australia Post – a constitutionally covered business - since April 2012. His time at Australia Post has not always been easy. He worked hard, but increasingly found the work environment challenging. In or about 2015, Mr Hermann says he was assaulted at work by a co-worker. In July 2018, he suffered what is described as a nervous breakdown. Mr Hermann has not worked since 31 July 2018. Instead, he is absent from work on workers’ compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). Australia Post is a self-insurer under the SRC Act. This means that Australia Post is both the employer of Mr Hermann and his insurer for workers’ compensation purposes.

[2] Mr Hermann’s feelings toward Australia Post have become increasingly negative over the period of his continuing absence from work. On 11 January 2021, Mr Hermann applied for orders to stop bullying at work under section 789FC of the Fair Work Act 2009 (the Act). Mr Hermann is an employee and a worker for the purposes of the Act, although he is not currently carrying out work. 1 His application relates to the rehabilitation and return to work program put in place for Mr Hermann by Australia Post and supported by Recovre, a third-party provider. It is not about his experience at work in the ordinary sense, even though that experience informs the context in which the application is made.

[3] Under the Act, a worker is bullied at work if one or more individuals repeatedly behave unreasonably towards the worker (or a group of workers of which the worker is a member). The behaviour must occur while the worker is at work in a constitutionally-covered business. It must also create a risk to health and safety. 2 Reasonable management action carried out in a reasonable manner is not bullying at work.3

[4] There is no exhaustive definition of when a person is “at work” although these are words of limitation. Conduct that occurs while a person is not at work in a business covered by the legislation is not bullying at work. A worker will usually be at work when they are performing work at any location or time of day. A worker may also be at work when they are engaged in some other activity which is authorised or permitted by their employer. 4 A person may not be at work while they are absent from work on workers’ compensation5, although each case will depend on its own facts and circumstances.

[5] If a worker has been bullied at work and there is a risk that this will continue, orders can be made to stop the bullying. The scope of the discretion to make orders to stop bullying is broad but does not extend to orders for the payment of money.

[6] In this case, the questions before me are these:

1. Was Mr Hermann “at work” when the alleged bullying occurred?

2. Was Mr Hermann bullied at work by the individuals named in his application, or were their actions reasonable management action, carried out in a reasonable manner?

3. Is there a risk that Mr Hermann will continue to be bullied at work by the individuals named in his application?

[7] The matter can largely be resolved by answering the third question, because I am not satisfied that there is a risk that Mr Hermann will continue to be bullied at work by the individuals named in his application. This absence of risk means that I cannot make orders to stop the bullying, even if I were satisfied that Mr Hermann has been bullied at work.

[8] To the extent that it is necessary to decide, however, I am not satisfied that Mr Hermann has been bullied at work by the individuals named in his application, to whom the orders he seeks are directed. This is for two reasons. Firstly, one of the allegations of bullying is made against an unidentified individual and cannot be established. Secondly, the remaining allegations of bullying behaviour are properly understood as reasonable management action, carried out in a reasonable manner.

[9] Given my findings, it is not necessary to decide whether Mr Hermann was at work when the alleged bullying behaviour occurred.

No risk of continued bullying at work

The three named individuals

[10] Mr Hermann’s application names three employees of Australia Post as having repeatedly behaved unreasonably toward him in a way that constitutes bullying at work. The three individuals are Ms Sammani Dharmatilleka (Workplace Rehabilitation Provider), Mr Michael Halloran (General Manager, Injury Management) and Mr Sokratis Kokonis (Head of MyHR).

[11] Ms Dharmatilleka resigned from Australia Post with effect from 30 July 2021. Mr Halloran resigned from Australia Post with effect from 1 October 2021. There is no apparent risk of any future interaction between these individuals and Mr Hermann while he is at work in the business of Australia Post.

[12] The primary allegation against Mr Kokonis is a case of mistaken identity. During a telephone conversation between Mr Hermann, Ms Rowena Yeomans and Ms Isobel McPhail of Australia Post on 4 December 2020, Mr Hermann says another person with “a female voice” interjected in the conversation and made an adverse comment to him about mental illness being different from physical illness, using the example of a person in a wheelchair. Mr Hermann says this was bullying at work because it was not reasonable to treat him differently due to mental, rather than physical, illness or injury. At the time, Mr Hermann associated the identity of the person who made the comment with the name “Kokonis” because he had recently received a letter from Mr Kokonis about a proposal to retire him on medical grounds.

[13] Mr Hermann now knows Mr Kokonis to be a male and concedes that the person interjecting in the conversation on 4 December 2020 is unlikely to have been him. The concession is consistent with the evidence of Mr Kokonis that he was not present during that conversation. I accept this evidence and find that Mr Kokonis did not interject or participate in the telephone conversation on 4 December 2020.

[14] There is also, on my assessment, no reasonable prospect of Mr Hermann returning to work at Australia Post, either in the near or distant future. That has been the case now for more than two years.

[15] On 29 July 2019, Mr Hermann wrote to Mr Halloran, including to say that “It’s pretty obvious that I wont (sic) be returning to Post on Medical recommendation and its none of my business how you Manage your Team and Employees at Post.” On 30 September 2019, Mr Hermann wrote to Ms Dharmatilleka and stated, among other things, that he would “not ever be returning to any section of” Australia Post. On 25 November 2019, an independent medical examination by psychiatrist Dr Frank Kai Tai Chow assessed Mr Hermann as “unfit to return to Australia Post”, stating that he was “not medically suitable to return to work at Australia Post in his pre-injury role or an alternative role within Australia Post”. On 25 November 2020, Australia Post commenced the process of medical retirement for Mr Hermann. The most recent available medical evidence indicates that in December 2020, Mr Hermann had no capacity for employment at all.

[16] Mr Hermann agrees that he is not medically fit to return to work at Australia Post, and has participated in rehabilitation and return to work efforts on this basis. His application to the Commission confirms the medical advice to Mr Hermann that he is not to return to Australia Post “in any form whatsoever”. The remedy he seeks is help leaving the company fairly, as well as the appointment of a third-party rehabilitation manager and reassessment of his medical condition to assist in his fair transition and return to work elsewhere. Orders of this kind would not be orders to stop bullying at work in Australia Post. They are directed instead at the transition of Mr Hermann away from that work.

[17] For these reasons, I am not satisfied of the risk that Mr Hermann will continue to be bullied at work by Ms Dharmatilleka, Mr Halloran or Mr Kokonis. With one exception, it is not necessary to decide whether they have bullied Mr Hermann at work.

Other employees of Australia Post

[18] Mr Hermann’s application refers to other individuals who are said to have engaged in behaviour toward him that amounts to bullying at work.

[19] Allegations are made against Fiona Whitten (National Manager Workers’ Compensation) and Rodney Lemish (Senior Employee Relations Partner – Deliveries, Community & Consumer), who Mr Hermann submits acted in a way that was unreasonable, intimidating or otherwise inappropriate toward him. As with the three named individuals, Ms Whitten and Mr Lemish are no longer employed by Australia Post. There is no risk that Mr Hermann will continue to be bullied at work by Ms Whitten or Mr Lemish.

[20] Mr Hermann also details repeated inappropriate conduct toward him by “delegates of post”, involving assaults, verbal abuse, harassment and discrimination from 2014-”. However, no orders are sought to stop or prevent this behaviour because of the reality that Mr Hermann is no longer at risk of bullying at work from employees in the delivery centres. None of these individuals are named as respondents to the application and as a result they have neither had an opportunity to respond to the allegations against them nor to be heard.

[21] As a matter of fairness, it is not appropriate that findings be made against these delegates of post in the circumstances. It is enough to say that if Mr Hermann’s recollection of events can be accepted, some of the behaviour of Mr Hermann’s team leaders and peers in Australia Post’s delivery centres over the years toward him has fallen well short of appropriate workplace conduct. It is regrettable that an application for orders to stop bullying at work was not made at a much earlier stage. A timely application may have assisted through early intervention and prevention, rather than allowing the situation to deteriorate as it has.

Not bullied at work

Mr Kokonis

[22] Mr Hermann submits that Mr Kokonis bullied him at work on and from 25 November 2020, in connection with a letter signed by Mr Kokonis, notifying him of Australia Post’s intention to retire him on medical grounds. In proposing his medical retirement, and by beginning that process, Mr Hermann submits that Australia Post: failed to comply with the SRC Act; withheld or ignored relevant information; improperly relied on the notion of invalidity retirement and coerced Mr Hermann to make an uninformed decision about his retirement. An immediate difficulty is that the facts relied upon to support these allegations mostly involve the alleged actions or omissions of Ms Dharmatilleka. As I have already noted, there is no apparent risk of any further interaction between Mr Hermann and Ms Dharmatilleka and it is not necessary to decide whether her actions or omissions in relation to Mr Hermann were bullying at work.

[23] The involvement of Mr Kokonis in the proposal to retire Mr Hermann on medical grounds cannot reasonably be considered bullying at work in the circumstances. Mr Hermann has been absent from work for more than two years. His medical advice is not to return to Australia Post. Mr Hermann both agrees with and supports this advice and has no intention of returning to work. There is also no obligation on an employer to continue to employ an employee indefinitely once they are no longer able to attend for work on medical grounds.

[24] The letter from Mr Kokonis about Mr Hermann’s proposed medical retirement was written in a reasonable tone and manner. It was based on the medical advice Australia Post had received about Mr Hermann’s ability to return to work. It contained information about the reasons for decision, mechanisms for review and related claim options. After the letter was sent, Mr Kokonis’ interaction with Mr Hermann was limited to reviewing Mr Hermann’s appeal of the decision to retire him on medical grounds, and I infer, internal discussion about a pause on the process while Mr Hermann’s concerns were considered. He does not know Mr Hermann or have any regular interaction with him at work.

The female HR delegate

[25] Mr Hermann concedes that it was not Mr Kokonis who interjected in the telephone conversation on 4 December 2020 but presses the allegation against an unidentified female “HR delegate”. The difficulty is that an application to stop bullying at work requires the individuals said to have engaged in bullying behaviour to be identified. Here, the identity of the person is not known and their participation in the conversation on 4 December 2020 is not established. Even if it could be, the behaviour does not appear to have been repeated. In those circumstances, I cannot find that the alleged comment was bullying at work.

Ms Whitten and Mr Lemish

[26] To the extent that it is necessary to consider the substance of the allegations made against Ms Whitten and Mr Lemish, I do not find their limited interactions with Mr Hermann to be bullying at work. These were objectively reasonable attempts to communicate with Mr Hermann, mostly for the purpose of responding to his concerns. They were not mocking or intimidating. They were respectful and polite. Mr Hermann’s own tone and choice of language in those interactions was not always appropriate. It is obvious that he was frustrated with Australia Post’s handling of his situation under the SRC Act, which he blames for his long absence from work and the reducing value of his worker’s compensation payments. At times he was also affected by medication used to treat his work-related condition. These circumstances help explain why he reacted so angrily to correspondence involving Ms Whitten and Mr Lemish, which he saw as a continuation of Australia Post’s bullying behaviour toward him. However, they do not mean that the conduct complained of was bullying at work. In my view, it was not.

Conclusion

[27] It is not the task of the Commission to make findings about whether Australia Post has complied with the SRC Act in its handling of Mr Hermann’s worker’s compensation claim. Those are matters more appropriately dealt with in the proper jurisdiction, which in this case is the Administrative Appeals Tribunal.

[28] As far as the application to stop bullying is concerned, I am not satisfied that Mr Hermann has been bullied at work by the individuals named in his application or that there is a risk that he will continue to be bullied at work by those individuals.

[29] The application is dismissed.

COMMISSIONER

Appearances:

J Hermann on his own behalf.
W Spargo for Australia Post and the three individual named respondents.

Hearing details:

2021.
Melbourne:
August 31.

Printed by authority of the Commonwealth Government Printer

<PR735180>

 1   Fair Work Act 2009 (Cth), s.789FC(2) (definition of worker); Work, Health and Safety Act 2011, s.7 (meaning of worker)

 2   Act, s.789FD(1).

 3   Act, s.789FD(2).

 4   Bowker & Ors v DP World & Ors [2014] FWCFB 9227 at [48]-[51].

 5   Amie Mac v Bank of Queensland & Ors [2015] FWC 774