Justin Simounds

[2016] FWC 5065

[2016] FWC 5065

FAIR WORK COMMISSION

DECISION

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

Justin Simounds
(AB2015/98)

DEPUTY PRESIDENT BARTEL ADELAIDE, 8 AUGUST 2016

Application for an order to stop bullying.

[1] Justin Simounds (the applicant) has filed an application pursuant to s.789FC of the Fair Work Act 2009 (the Act) seeking an order to stop bullying. The employer of the applicant at the relevant time is Event Personnel Australia Pty Ltd (EPA or the employer). Michael (Mick) Thompson, the Operations Manager for the employer, is a named respondent to the application and is alleged to have engaged in bullying behaviour toward the applicant.

[2] EPA provides work crews, including Riggers and Road Production Engineers (Roadies) for concert productions and other live performances. Its workload is dependent on the calendar of events and the contracts it obtains to supply labour.

[3] This matter has had a difficult history, beset by delays. The relevant chronology was set out in a decision issued in April 2016, 1 in which I considered whether the application should be dismissed pursuant to s.587 of the Act (the s.587 decision). One of the matters considered was whether the application had no reasonable prospect of success because the applicant could not meet the requirements to obtain an order to stop bullying. The requirements are set out in s.789FF(1) of the Act as follows:

“789FF FWC may make orders to stop bullying

(1) If:

(a) a worker has made an application under section 789FC; and

(b) the FWC is satisfied that:

(i) the worker has been bullied at work by an individual or a group of individuals; and

(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;

then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.

(2) …”

[4] EPA submitted that, as the applicant had not worked since April 2015, there was no risk that he would “continue to be bullied at work” as required by s.798FF(1)(b)(ii) of the Act.

[5] I noted in the s.587 decision that EPA had not indicated that no further shifts would be offered to the applicant; rather, it submitted that other circumstances prevented the employer from offering shifts to him at that time. In determining not to dismiss the application, I took into account the following factors:

● the applicant had not been dismissed;
● the failure to offer work was not connected to any misconduct or poor performance on the part of the applicant; and
● the reasons put forward by the respondent as to why the applicant had not been offered work were not permanent in nature. 2

[6] It is also the case that in the course of the applicant’s 20 plus years of employment with EPA there are previous instances where the applicant did not perform work for a year or more. 3 However, a different scenario emerged during the evidence of Mick Thompson, who is responsible for the allocation of work to employees. He gave evidence that the applicant failed to turn up to a shift offered to him in May 2015. When he contacted the applicant about it, he stated that the applicant was abusive and threatening towards him and this is the reason that the applicant had not been offered any work.4

[7] I also observed a level of animosity toward the applicant by Mick Thompson and other witnesses for EPA. I am now satisfied that EPA had no intention of offering shifts to the applicant over the past year and that it does not intend to offer further shifts to the applicant in the future. These proceedings could have been significantly curtailed if the employer had been direct with the Commission about its intentions in this regard rather than hiding behind the smokescreen of seasonal downturn and the applicant’s employment with one of EPA’s competitors. 5 The employer has foreshadowed a costs application against the applicant but given the above finding it may wish to reconsider its position.

[8] Having reached the view that the applicant is not at risk of being bullied “at work”, the requirement for an order to stop bullying in s.789FF(1)(b)(ii) of the Act cannot be met and the application must fail. 6

[9] It follows that it is not necessary for the Commission to address the incidents relied upon by the applicant to support his case that he has been bullied at work, however I consider that it is appropriate to make some comment about the cases presented as serious issues have been raised.

The applicant’s case

[10] The applicant portrayed the working environment as one where local management condones poor health and safety practices and deals with employees in an inappropriate manner, including abuse and belittling comments. He submitted that employees are too scared to complain because they will be denied shifts if they do so. In addition, he submitted that there was a lack of proper process available to employees to raise issues of concern and a lack of proper induction for new employees of EPA.

[11] The applicant also alleged that Mr Thompson extorted employees by demanding payment and other favours in order to provide work. 7

[12] The applicant identified four specific instances of alleged bullying behaviour in his particulars of claim. He called several witnesses to give evidence, all of whom had worked for EPA and worked with the applicant. The majority of this evidence consisted of complaints about their respective treatment by EPA and support for the applicant’s generalised complaint of inappropriate conduct, but little was relevant to the specific incidents identified by the applicant.

Bon Jovi Concert, AAMI Stadium, 10 December 2013

[13] The applicant alleges that, while he was allocated to the “dressing room call”, he was directed by George Gonis, the Operations Assistant for EPA, to show other employees how to put harnesses on in order to work on a platform eight metres above the main stage, or the equivalent of one and a half stories above ground level. The applicant said he refused the direction because it was evident that the employees did not have the required training to work at height as they did not know how to fit the safety harnesses.

[14] An altercation then ensued between the applicant and Mr Gonis. The applicant left the site and went to Mr Thompson’s house to complain. The applicant stated that Mr Thompson was not interested in his concerns and he was told to get back to work. The applicant stated that shortly after this incident he “… was sent on what is referred to and known as a ‘holiday’ … So that is a period of several months without work or reduction in calls and employment that you would normally get.” 8

[15] Mr Gonis stated that the harnesses were not required to be worn because there was a safety net under, and a handrail around the platform. He stated that the harnesses had been obtained only to provide ‘peace of mind’ for the employees. The applicant was directed to leave the site because he refused to comply with a lawful direction.

[16] According to Mr Gonis, at some point the climbing requirement was cancelled when the formation of the stage was altered. He disputed that this was because of the safety concerns raised by the applicant. He produced an email from the Production Manager, Colin Skals to Mr Thompson in January 2016, which stated that there were handrails on three sides of the platform and a safety net under the open side of the platform and further, that a Safety Officer was present from the start of the staging build until all equipment was removed from site. 9

[17] The applicant’s view is that he raised a legitimate health and safety issue and was subjected to abuse from Mr Thompson and denied shifts for doing so. Neither the applicant nor Mr Gonis apparently referred the issue to the Safety Officer on site, although I understand the applicant disputes that a Safety Officer was present at the time.

Rolling Stones Concert, Adelaide Oval, 24 October 2014

[18] The applicant alleges that Richard Hansen, Crew Chief with EPA spoke in a belittling and intolerant manner to EPA employees. He referred to an example of Mr Hansen’s conduct as follows, noting that this terminology and behaviour is commonplace:

“[Mr Hansen] stood up in front of the local crew and shouted, has everybody signed on? Good, now shut the fuck up, and then introduced the local crew to our bosses for the show saying, you are all slaves these are your masters you need to do whatever they tell you and no attitudes this is not a democracy.”

[19] Mr Hansen denied calling the crew “slaves” and stated that he tries to be “jovial” and upbeat with the crew. He stated that EPA crew are required to undertake work on the instruction of the client and that he tells the crew who will be their “master” for the shift. 10

Dr Who, Adelaide Entertainment Centre, 24 January 2015

[20] This is a complaint that Mr Thompson told the applicant that he would not be paying travel allowance for an upcoming event because he was making enough money with the Sunday rates he would be paid. Mr Thompson denied the allegation in his witness statement. 11 The allegation was not put to Mr Thompson under cross-examination.

Soundwave Concert, Rymill Park, 19 February 2015

[21] It is not in dispute that the applicant was assaulted by an employee of the production company, who was directing the applicant’s work at the time. The applicant’s complaint is that Mr Thompson did not offer appropriate support at the time; that it pressured him not to pursue the matter with the production company; and it failed to initiate an appropriate investigation. The applicant has a further complaint relating to the alleged withholding of documents in relation to his claim for workers compensation arising from the assault.

[22] Mr Thompson denies the allegations and stated that by the time he became aware of the incident the applicant had already called the police. He stated that he encouraged the applicant to seek medical assistance and to see a lawyer, 12 and that EPA supported the applicant’s workers compensation claim. He stated that an incident report was completed by the safety officer on site, but that EPA did not complete any documents relating to the incident.

[23] There was evidence from two of the applicant’s witnesses, Mr McIntyre and Ms Steed, who were employed around this time, that Mr Thompson and Mr Hansen were upset at the applicant and made comments to the effect that the assault was due to his difficult behaviour and that the incident had created problems for EPA.

Demands for money and services in order to be provided with shifts

[24] The applicant submitted an invoice and receipt for work he paid to Odd Job Brothers for work undertaken at Mr Thompson’s house in August and October 2014, for a total of $335.00. 13 The applicant stated that he assisted in undertaking the work and that Mr Thompson would not be aware that he also paid for the services.14

[25] The applicant also referred to a text message he sent to Mr Thompson in April 2015 advising that “Will be close to your place in about an hour, can do your carport roof will u be around???” 15 Further text messages between the applicant and Mr Thompson on 12 November 2013 contain a request from the applicant, “Is there work on?” and a response from Mr Thompson, “Don’t know is there any booty”. 16

[26] This material was put forward as evidence that Mr Thompson made demands for goods and services in return for the allocation of shifts. Mr Thompson stated that these matters were not related to EPA and that the applicant offered to do some work on one occasion only. He said that the applicant refused payment when it was offered and that he took a spare pair of secateurs instead. 17

[27] I am satisfied that the applicant performed and/or paid for work at Mr Thompson’s house on at least three occasions. Mr Thompson has not provided any reasonable explanation for this work or for the text exchange in November 2013, which he described as “friendly banter”. 18  The onus on the applicant in these proceedings is proof on the balance of probabilities, however clear and cogent proof is required in order for the Commission to make a finding that conduct of the type alleged by the applicant occurred. 19

[28] At the least, there was a blurring of the line between the professional and the personal relationship between Mr Thompson and the applicant. In my view this became an issue due to the absence of an appropriate policy framework that applied to the operations, coupled with the geographical isolation of the Adelaide operations from the EPA Human Resource Management which was conducted out of the head office in Perth. There is no EPA office in Adelaide, and Mr Thompson has an office in his house where he undertakes EPA work. I understand that Mr Joe Vecchiotti is senior to Mr Thompson in Adelaide but his role, if any, in relation to dealing with employees was not discussed at the hearing.

Observations on the working environment and practices

[29] There was little direct evidence provided about the employer’s operations. It is clear that work is often performed in a high pressure environment with several businesses supplying labour on site, including other labour hire companies and the production company.

[30] The work of the applicant and others with whom he worked fall under the heading of “crewing services” and their work may involve forklift driving, movement of equipment, stage dressing and attending to back stage requirements. The work may be undertaken at the direction of persons who are not EPA employees. It is a ‘robust’ environment consistent with general public perception of roadies and rock concerts.

[31] EPA submitted and I understand that for large events at least, safety is regulated on a site basis and EPA (and other companies engaged to provide labour or services) submit the safety systems and protective measures/equipment that will be put in place in advance of the engagement. Induction to EPA consists of the provision of written information to employees on commencement, some of which includes occupational health and safety information. Tool box meetings are conducted on each site where work is performed in relation to the location of facilities and key personnel on site, including in respect to safety issues.

[32] EPA engages its crewing employees on a casual basis. Other than an availability to perform the work and the necessary skills to do so, the basis on which a particular casual or casuals are engaged for work is at the discretion of the Operations Manager.

[33] There is no published grievance process for employees. Mr Thompson seemed flummoxed by questions as to whether there was a grievance process in place, noting that employees could always approach him if they had any questions or concerns. 20

[34] The operations management of EPA are employed because of their knowledge and experience in the industry. Their responsibility for the welfare of employees appears to be the implementation of checklist instructions at site toolbox meetings and the distribution of documentation to new employees of EPA. On the evidence, I could discern no oversight or internal checking mechanisms and no process available to employees to raise issues beyond their immediate managers.

[35] Wherever the truth lies on the competing positions put forward as to Mr Thompson’s response to the assault of the applicant, it was not the subject of any internal review or follow up by EPA and was seen as something outside EPA’s legal responsibility. Mr Thompson stated that the Safety Officer was employed by the people who ran the Soundwave concert and that “… safety of the site doesn’t really involve me. It’s the safety officer’s responsibility”. 21

[36] Witnesses for the applicant supported his claim that complaints are met with a ‘payback’ in the form of a ‘holiday’ from work and/or rejection of their complaints by management. I am unable to form a view as to whether this is a widespread practice, but as noted earlier there was a deliberate decision taken to deprive the applicant of shifts. I am satisfied that the absence of any HR policy infrastructure in regard to the allocation of shifts to employees or the proper management of complaints means that there is little or no accountability of site management in this regard.

[37] I consider that this is the applicant’s real complaint, and the specific bullying conduct as he has alleged has been pursued to ‘shine a light’ on what he sees as the norms of employment with EPA and the impact on employees. In his final submissions the applicant stated:

“It’s got to the point where it’s a blanket conduct that’s going on within the company. It’s not been assessed or looked at by anyone. It’s just getting a blind eye turned to it. People are getting injured; people are getting hurt as attested by my witnesses, including [witness name] on the day of Soundwave as she was injured too. But there was no injury report made out. When I went into the tent at the back of the crew room there were seven injured people in there. Yet as far as I know I’m the only person that lodged an application or an incident report over that. If you want to rewind for other shows then I would have been one of those people sitting there without any documentation either because I would have sat there and shut up. But it’s basically gone too far.

There are serious problems going on within the company and no one’s addressing them.” 22

Conclusion

[38] Notwithstanding the absence of a complaint/grievance procedure, the applicant could have approached matters with EPA in a more constructive manner. He was invited by Joe Vecchiotti to document his concerns but did not do so. He is an experienced employee with an awareness of the hierarchy and personnel within EPA, yet he failed to state his complaints in a coherent manner. A similar criticism can be made with regard to his approach to documentation and witness statements in these proceedings, which he appeared to regard as a mere formality to enable him to place large amounts of previously undisclosed evidence before the Commission.

[39] For the reasons set out earlier, the application for an order to stop bullying is dismissed. On the material presented I consider that there is a need for EPA to review policy settings and oversight at the operational level as discussed, however it is beyond the current jurisdiction of the Commission to take these matters any further.

DEPUTY PRESIDENT

Appearances:

Mr J Simounds in person

Mr B Douglas on behalf of the respondent with Ms M Ballantine

Hearing details:

2016:

Adelaide;

25, 26 May, 29 June.

 1   [2016] FWC 2040, particularly at [2] – [9].

 2 As above, at [40].

 3   Ex R3.

 4   At PN2285-6, 2293.

 5   This was discussed in the s.587 decision at [16] and [32].

 6   See Shaw v Australian and New Zealand Banking Group Ltd and Anor[2014] FWC 3408; Obatoki v Mallee Track Health & Community Services and Others[2015] FWCFB 1661.

 7   PN451, 528, 629; Ex A1.

 8   At PN452.

 9   Ex R2. Mr Skals is employed by the production company responsible for the concert.

 10   At PN3314.

 11   Ex R1 at paras 24 and 25.

 12   At PN2780.

 13   Ex A3 attach 99 and 100.

 14   At PN505.

 15   Ex A3 attach 139.

 16   ExA3, attachment 128

 17   At PN2830-2.

 18   At PN2826-34; PN2569-2580, respectively.

 19   Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others (1992) 110 ALR 449 at 449-450; Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.

 20   At PN2383-6.

 21   At PN2813.

 22   At PN3792-3.

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