Kim Hodgkins

[2019] FWC 3826

 

[2019] FWC 3826

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Kim Hodgkins
(AB2018/679)

DEPUTY PRESIDENT KOVACIC CANBERRA, 5 JUNE 2019

Application for an FWC order to stop bullying – application by the Applicant to amend her application to add the Australian Public Service Commissioner as a person against whom bullying is alleged – application not granted.

[1] On 29 October 2018 Ms Kim Hodgkins (the Applicant) filed an application under s.789FC of the Fair Work Act 2009 (the Act) seeking an order to stop bullying in accordance with Part 6-4B of the Act. The background to Ms Hodgkins’ bullying application is set out in the Fair Work Commission’s (the Commission) decision of 15 May 2019 regarding her application for various interim orders. 1

[2] On 13 May 2019 Ms Hodgkins sent an email to the Commission seeking to amend her bullying application to add several persons, including the Australian Public Service (APS) Commissioner, Mr Peter Woolcott AO, as persons against whom bullying is alleged. Ms Hodgkins’ application to amend her bullying application was the subject of a telephone mention and directions hearing on 17 May 2019 at which the Commission indicated that it would not grant Ms Hodgkins’ application to amend her bullying application in so far as it sought to add the APS Commissioner. The Commission further indicated that reasons for that decision would be issued at a later date. This decision sets out those reasons.

Background

[3] Ms Hodgkins’ email of 13 May 2019 included the following:

“I’m just confirming what I indicated orally during the hearing last Friday.

I wish to seek leave to amend my application for orders to stop bullying to add Mr Peter Woolcott, Commissioner Australian Public Service Commission to the proceedings as ‘persons named’.

…

As briefly discussed during Friday’s hearing, the three named parties above actions in the circumstances were grossly negligent, as all parties went out of their way to not address facts as part of their investigatory processes that were readily available, and significantly material to the situation.

As I also mentioned in the hearing on Friday, if this was a ‘line ball call’ I would be inclined to give parties the benefit of the doubt (as I usually do in similar situations of this nature), however, as the evidence indicates these situations aren’t even close to being ‘line ball’ calls.

It is readily obvious to ‘a reasonable person’ that there has been a multitude of events occur over a significant period of time (3 years), where named parties have gone out of their way to cover up significant fraud and maladministration in the public service in a collusive manner.

In summary, their actions in the circumstances were not only complicit with these actives, but were also participative, hence why I have sought stop bullying orders.

Further as discussed in hearings on Friday it was readily apparent that there was a real risk that staff would continue to be bullied at work and senior management did nothing to prevent this (Lacy and Kandelaars v Murrays and Cullen).

Also I have provided evidence that shows the numerous investigatory processes were not carried out in a manner as intended under the relevant legislation, which has served to exacerbate the effect of repeated bullying in the circumstances (Bowleer and Others v DP World Melbourne Ltd).

As also discussed during the hearing, I have throughout these processes advised work on many occasions about the detrimental impact this is having on me and others. Again work have gone out of their way to not address these issues (ie by refusing to interview the Procure to Pay team members, is just one example). In accordance with Nationwide News Pty v Naidu, given these events have gone on for such an extended period of time, it was reasonably foreseeable that if the behaviour continued it could cause significant psychiatric injury.

I would also like you to refer to the other cases that I mentioned during proceedings on Friday as well, as a minimum.

In summary, it was also readily apparent that you had not had the opportunity to read all material that I have filed in detail as part of my submission. As indicated in my 3 page covering letter as part of my submissions, it is my expectation that this material is assessed in entirety for these proceedings. As I noted material filed to date, is only a small indicative example (perhaps 10% of available material at best), remaining material will be forthcoming for the final hearing.

Please also note that I have included Mr Woolcott…in this correspondence for complete transparency.

I have also attached further evidentiary material which primarily relates to APSC conduct in the circumstances. There will be more when time permits...” (Text as per original)

[4] In short, Ms Hodgkins is aggrieved by the APS Commissioner’s decision not to conduct an investigation into allegations which she had made against the Chief Executive of the Australian Financial Security Agency (AFSA – the employer/principal named in Ms Hodgkins’ bullying application). In the APS Commissioner’s decision, which was emailed to Ms Hodgkins on 7 May 2019, the Commissioner indicated inter alia that he was unable to agree with Ms Hodgkins that the Chief Executive of AFSA had engaged in behaviour that constituted reprisal in respect of her public interest disclosures and that the evidence did not support her allegations that the Chief Executive had breached the APS Code of Conduct in relation to his dealings with her.

[5] Within an hour of receiving the APS Commissioner’s decision, Ms Hodgkins sent the following email to the APS Commissioner and a number of other parties, including the federal Attorney-General and Shadow Attorney-General, the Commonwealth Ombudsman and an official of the Construction, Forestry, Maritime, Mining and Energy Union.

“Dear Mr Woolcott

I have never before witnessed such abuse of power within the public sector and such negligence and cover up of wrong doing.

I have provided you with irrefutable evidence of AFSA senior executives employing multiple non-Australian citizens and committing multiple breaches, including but not limited to procurement breaches, and at every step you have gone out of you [sic] to cover these issues up.

I am disgusted!

I raised my concerns previously with you about you intentionally limiting the scope of your investigation (as per attached), which to me just evidences further intentional cover-up of significant and systemic maladministration with the Australian Public Service.

Please note I have ccd in other parties as I am raising a Public Interest Disclosure about your conduct, which needs to be investigated.”

[6] At the telephone mention and directions hearing on 17 May 2019 Ms Hodgkins appeared on her own behalf, while Mr Craig Rawson from the Australian Government Solicitor appeared for the APS Commissioner. Ms Catherine Mann appeared for AFSA.

The Applicant’s submissions

[7] In support of her application to amend Ms Hodgkins submitted inter alia that:

•  her primary reason for seeking to amend her application to add the APS Commissioner and others as persons against whom bullying is alleged was because of their negligence and bias in undertaking their duties, highlighting the following as examples:

→  undertaking investigations where evidence that was reasonably available and materially significant was ignored,

→  not following the rules of evidence,

→  not providing procedural fairness, and

→  ignoring conflicts of interest;

•  the APS Commissioner’s negligence could only be surmised by any reasonable person as being intentional, biased and contrary to the APS Code of Conduct and the APS Values;

•  if she was unable to bring this action against the APS Commissioner via the Commission it would unreasonably limit her right to appropriately escalate issues via the APS Commission and have confidence that those issues would be addressed appropriately, particularly given the APS Commissioner’s role in respect of inquiries into public interest disclosures that relate to alleged breaches of the APS Code of Conduct and inquiries into breaches of the APS Code of Conduct by Agency Heads;

•  the APS Commissioner’s final report into the matters she raised could not be considered reasonable;

•  the evidence was overwhelming that the APS Commissioner’s actions were negligent and intentional in the circumstances, citing the fact that the APS Commissioner had delegated aspects of the investigation to others as being suggestive of some sort of collusion or alternatively that the Commissioner’s decision was motivated by ill will as the evidence that had been ignored was so blatantly obvious;

•  she would be escalating further APS Code of Conduct matters to the APS Commission and wanted some confidence that those matters would be handled appropriately, adding that she had no faith that the Commissioner would perform his role as required; and

•  the reference in the APS Commissioner’s letter of 6 May 2019 identifying the scope for her to seek a review of his decision under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) in itself constituted further bullying and harassment which would see her further disadvantaged as she would need to pursue yet another action in her own time and using her own money.

[8] In response to a question from the Commission as to the order(s) which she would seek in respect of the APS Commissioner where he to be added as a party to her bullying application, Ms Hodgkins said that she would seek orders requiring the APS Commissioner’s report to be consistent with procedural fairness and the rules of evidence and requiring the APS Commissioner to undertake his investigation consistent with the APS Code of Conduct and APS Values.

[9] Ms Hodgkins cited several decisions in support of her application in respect of the APS Commissioner. Those decisions were Sharon Bowker, Annette Coombe and Stephen Zwarts v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The, Victorian Branch and Others (Bowker), 2 Naidu v Group 4 Securitas Pty Ltd & Anor (Naidu)3 and Ms SB4.

The APS Commissioner’s submissions

[10] It was submitted on behalf of the APS Commissioner that the Commissioner had never met Ms Hodgkins, had never spoken with her nor had he visited her workplace. More particularly, it was submitted that Ms Hodgkins was required to identify the nature of the unreasonable behaviour which she attributed to the APS Commissioner and the nature of orders that would be sought. In light of Ms Hodgkins’ abovementioned response regarding the orders she would seek against the APS Commissioner, the Commissioner’s representative characterised the orders as seeking ongoing supervision by the Commission of the handling by the APS Commissioner of Ms Hodgkins’ yet to be made complaints, adding that this would involve the Commission telling the APS Commissioner how to exercise his statutory functions under both the Public Service Act 1999 (the PS Act) and the Public Interest Disclosure Act 2013 (the PID Act). Against that background, it was submitted that there was no basis to join the APS Commissioner to Ms Hodgkins’ bullying application.

[11] Beyond that it was submitted on behalf of the APS Commissioner that there was nothing in the PID Act which:

•  conferred an entitlement to procedural fairness on a person in Ms Hodgkins’ position;

•  required the APS Commissioner or any principal officer to a conduct public interest disclosure inquiry in accordance with the rules of evidence; or

•  required that a public interest disclosure inquiry be conducted in accordance the APS Code of Conduct or APS Values.

[12] Finally, it was contended that there was nothing in any Act which conferred any status on the conduct of a public interest disclosure investigation or the response to a public interest disclosure that would meet the description of conduct directed towards Ms Hodgkins, conduct in the workplace or conduct which would ground the types of orders sought by Ms Hodgkins in respect of the APS Commissioner.

The statutory framework

[13] The provisions of the Act relevant to Ms Hodgkins’ application to amend her bullying application to add the APS Commissioner as a person against whom bullying is alleged are set out below.

“586 Correcting and amending applications and documents etc.

The FWC may:

(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or

(b) waive an irregularity in the form or manner in which an application is made to the FWC.

789FD When is a worker bullied at work?

(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally-covered business:

(i) an individual; or

(ii) a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

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

(3) …

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) In considering the terms of an order, the FWC must take into account:

(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body—those outcomes; and

(b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes—that procedure; and

(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes—those outcomes; and

(d) any matters that the FWC considers relevant.”

Consideration of the issues

[14] As can be seen from above, s.586 of the Act provides the Commission with a broad discretion to amend an application “on any terms it considers appropriate.”

[15] In considering whether or not to agree to exercise that discretion to amend Ms Hodgkins’ bullying application to add the APS Commissioner as a person against whom bullying is alleged I think it appropriate to have some preliminary regard as to the possibility that the requirements set out in s.789FF(1)(b) of the Act might be satisfied, i.e. that the Commission is satisfied that the worker has been bullied at work by an individual or a group of individuals and that there is a risk that the worker will continue to be bullied at work by an individual or a group of individuals. More particularly, where that possibility is assessed as low it may be that there is little practical utility in the Commission exercising the discretion available to it under s.586 of the Act to amend the application. This is not to say however that where circumstances evolve the assessment of that possibility might not also change such that it might be appropriate to exercise the discretion should a further similar application to amend be subsequently made.

[16] The circumstances in this case are that the APS Commissioner after assessing the material submitted to him by Ms Hodgkins declined firstly on 20 December 2018 and then again on 6 May 2019 to conduct an investigation into the allegations which Ms Hodgkins had made against the Chief Executive of AFSA. Based on the APS Commissioner’s letter of 6 May 2019, I note that the May 2019 decision arose in circumstances where Ms Hodgkins on 20 February 2019 formally requested that the Commissioner “revaluate” his decision of December 2018. Set out below is an extract from the Commissioner’s letter of 6 May 2019 which provides an overview of the issues raised by Ms Hodgkins, the Commissioner’s consideration of them and the reasons for his decision:

“1. I refer to your email of 20 February 2019 in which you formally requested I ‘revaluate’ my decision dated 20 December 2018 to decline to conduct an investigation into allegations you made against Mr Hamish McCormick, Chief Executive of the Australian Financial Security Authority. I have reviewed the material you sent up to the date of my first decision, and I advise that my decision stands. I understand you have been advised of your review options in relation to that decision.

Allegations received between 20 December 2018 and 26 April 2019

2. I note that in the material you provided in the period between my first decision of 20 December 2018 and the end of March 2019, your allegations against Mr McCormick appear to be about him engaging in alleged reprisal action against you, specifically:

a. Giving you lawful and reasonable directions about:

i. not using your work time to pursue your various complaints

ii. not emailing AFSA-specific material to multiple recipients

b. Instituting a Code of Conduct process against you;

c. Not agreeing to return you to your nominal position while you’re grievances are being considered;

d. Not selecting you for the position of Assistant Director, Financial Reporting;

e. You not receiving an IFA

f. Engaging the services of the Australian Government Solicitor in relation to your Stop Bullying application before the Fair Work Commission

3. It also appears you have alleged that Mr McCormick has breached the Code of Conduct in relation to his role under the Public Interest Disclosure Act 2013 (PID Act).

4. I have referred to the Information Sheet published by the Office of the Commonwealth Ombudsman entitled, Managing the Risk of Reprisal, February 2016. This guidance provides a non-exhaustive list of what a reprisal might look like. Upon reviewing the extensive material you have sent, I am unable to agree with you that Mr McCormick has engaged in behaviour that constitutes reprisal.

5. While you may feel victimised in the workplace as a result of decisions made in relation to your employment, the evidence does not support your allegations that Mr McCormick has breached the APS Code of Conduct in relation to his dealings with you.

6. In reaching this conclusion, I have had regard to the Ombudsman’s guidance about behaviour which does not constitutes [sic] a reprisal. The list includes reasonable administrative action taken to protect the discloser from detriment…

…

8. In my view, and based on the evidence, it was appropriate for Mr McCormick on 5 and 25 February 2019 to issue you with a direction under the PS Act and a reminder about your communications with internal and external agencies.

9. It is not a breach of the APS Code of Conduct for an agency head to put parameters around what amount of time employees may spend during work hours pursuing their grievances; nor is it a breach of the Code to stipulate that an employee may not disseminate material not pertinent to the employee’s grievance outside the agency. I note that you take a very broad view of ‘material pertinent to your grievance’, but it is not a breach of the Code for your agency head to take a different view.

10. I note Mr McCormick did not personally make the following decisions:

•  To not provide you with an IFA on or about June 2018

•  not selecting you for the position of Assistant Director, Financial Reporting

•  to commence a Code of Conduct on 4 December 2018

•  engaging AGS to represent AFSA before the Fair Work Commission in relation to your stop bullying application

•  on or about late September/early October 2018, under section 25 of the PS Act, re-assigning your duties from the Procurement area of AFSA to a specific project in the HR area and changing your reporting lines.

11. Accordingly, the actions listed above fall outside my remit.

12. In relation to your allegations that Mr McCormick breached the Code of Conduct in relation to a breach of section 43(5) of the PID Act, I note section 43(5) of the PID Act provides that the authorised officer must use their best endeavours to decide the allocation within 14 days after the disclosure is made to them.

13. The evidence shows you have provided a lot of material to a number of officers in AFSA. Accordingly, it is not unreasonable to assume that making decisions about what material does and does not constitute a PID takes time, which may take longer than 14 days. The PID Act expressly states ‘best endeavours’– this is not an absolute statutory timeframe. The fact that Mr McCormick did not decide the allocation of your PID within 14 days is not prima facie a breach of the Code of Conduct.

14. In relation to your allegations that Mr McCormick breached the Code of Conduct regarding his inaction in response to your concerns regarding the reprisal risk officer assigned to you, from the extensive material before me, I specifically refer to your email stated 7 and 12 March 2019 from you to Mr McCormick and to Ms Denton (your reprisal risk officer).

15. In these emails, you assert among other things that you have made a PID against Ms Denton, it is inappropriate for her to remain as your reprisal risk officer. I agree that ideally, it may have been prudent for Ms Denton to be relieved of her role as reprisal risk officer…

16. While it would appear that it was open to Mr McCormick to have taken action on this matter, I do not consider that his lack of attention is a prima facie breach of the Code of Conduct. I have had regard to the APSC guidance in Handling Misconduct, and in particular to paragraph 5.1.2…

Allegations received between 26 April 2019 and 5 May 2019

…

19. The content of the emails (and the numerous attachments) received in the week commencing 29 April 2019 may be broadly summarised under these headings:

a. AFSA allegedly being tardy in the handling of your PIDs, including appointing an external investigator

b. AFSA’s decision to appoint HWL Ebsworth to conduct investigations into two further PIDs you have lodged

c. AFSA continuing to proceed with a Code of Conduct investigation against you and putting limits on paid work time for you to respond to the allegations made against you

d. AFSA’s conduct before the Fair Work Commission, including AFSA engaging the Australian Government Solicitor (AGS)

e. AFSA’s decision of 27 February 2019 in relation to one of your PID allegations

f. AFSA not returning you to your original position in the Finance area

20. In relation to your claimed delays around AFSA handling of your PIDs, even where the delays may have been directly due to Mr McCormick’s action/inaction, given the amount of material you provide in the number of PID allegations you have made, I do not consider that these delays are a prima facie breach of the Code of Conduct.

21. In relation to the allegations in paragraph 19(c) above, I refer to paragraphs 7 to 9 above.

22. In relation to your allegations in paragraph 19(d) above, despite your dissatisfaction and claims that it is unfair, there are decisions by the FWC to support AFSA’s action to engage AGS.

23. In relation to your allegations in paragraph 19(e) above, Mr McCormick did not make this decision, and accordingly, this matter falls outside my remit. It is open to you to seek review of this PID decision with the OCO.

24. In relation to your allegations in paragraph 19(f) above, I refer to paragraphs 7 to 9 above.

Summary

…

26. In relation to your allegations which may specifically involve the AFSA CEO, my fresh decision in relation to the material you have sent since 20 December 2018 is to exercise my discretion to decline an investigation on the following bases:

•  Regulation 6.3(2)(e) provides that I may decline to conduct an investigation on the basis that your allegations ‘relate to decisions properly taken, or to policy properly adopted by the Agency Head, with which the person making the allegation disagrees’ in relation to the allegations at paragraphs 2 and 19(b) to 19(f).

•  Regulation 6.3(2)(d), whether the allegation identifies conduct which, if proven, would constitute a breach of the Code of Conduct – in relation to the allegation that Mr McCormick did not take appropriate action under the PID Act to allocate the PID in 14 days.

•  Regulation 6.3(2)(f), whether the cost of conducting an enquiry is justified in the circumstances – in relation to the allegation that Mr McCormick did not remove Ms Denton from the role as your risk reprisal officer in the allegations in paragraphs 19(a) and 19(b).” (Emphasis as per original)

[17] An objective reading of the Commissioner’s letter indicates that it provides a considered response to the issues raised by Ms Hodgkins.

[18] Beyond this, I note that:

•  there are currently no other matters initiated by Ms Hodgkins with the APS Commissioner for consideration/determination, though Ms Hodgkins foreshadowed at the telephone mention and directions hearing her intention to refer a number of other Code of Conduct matters to the APS Commission/Commissioner; and

•  there appears to be no regular interaction between the APS Commissioner and Ms Hodgkins, in this regard I note the point made by the Commissioner’s representative that the Commissioner had never met or spoken with Ms Hodgkins.

[19] Taken together, the above does not point to the APS Commissioner repeatedly behaving unreasonably towards Ms Hodgkins as per s.789FD(1)(a) of the Act.

[20] As previously mentioned, Ms Hodgkins relied on a number of decisions is support of her request to amend her bullying application. Among other things, Ms Hodgkins posited that her situation was similar to that which existed in Bowker, highlighting that the applicants in that case had raised in excess of 212 complaints and concerns and that the respondent, DP World, had failed to promptly deal with those complaints. The following extract from Bowker appears in that part of the decision headed “Inadequate workplace investigations, incomplete investigations and delay” and is relied upon by Ms Hodgkins given her concern that her various public interest disclosures have not been dealt with promptly by AFSA:

“[43] The annexure to the Applicants’ final submission, not reproduced here, chronicles the timing of the major steps taken by the Applicants in relation to their various complaints or concerns, and time that has passed since the complaints or concerns were raised. Attachments to Mr McCluskey’s further witness statement also give some detail as to the status or progress of the various complaints or concerns. There seems little doubt that there has been delay in advising the respective Applicants of the outcome of some of their complaints or concerns. In part this may be explained by issues of complexity arising, for example, from the passage of time between the complaint and the incident; whether the person against whom allegations are made was an employee, or was an employee at the time the complaint was made, whether the person is known or identifiable and the availability of persons to corroborate the allegations the subject of the complaint, and the need for considered advice. That said, in some cases, it has taken DP World 12 months or more to advise the relevant Applicant of the outcome of a complaint. On no account are such delays desirable. Given the apparent delay, coupled with the matters identified in the preceding paragraph and in the circumstances faced by the Applicants, it is understandable that their confidence in DP World’s investigative processes is shaken. Judging by a register of current workplace behaviour complaints tendered in evidence, and which records complaints received by DP World from various of its employees, there appears, in a number of instances, to be a significant period that passes between the date a complaint is received by DP World and the date on which the outcome is communicated to the complainant. In some cases, complaints made in the later part of 2014 are recorded in the register (as at 14 July 2015) as on-going. It is therefore apparent that the process can and should be improved notwithstanding the steps already taken as set out in the evidence of Mr McCluskey.” (Endnotes not included, underlining added)

[21] In circumstances where the APS Commissioner on 7 May 2019 responded to Ms Hodgkins request of 20 February 2019 to revaluate his decision of 20 December 2018, Ms Hodgkins’ contention that her situation is analogous to that in Bowker is not borne out in so far as it relates to the APS Commissioner. This is particularly so when regard is had to the underlined text in the above extract. In my view, the APS Commissioner dealt promptly with the issues raised by Ms Hodgkins.

[22] Ms Hodgkins also drew on the decision in Ms SB, contending that conducting an investigation in a grossly unfair manner is an example of bullying. In Ms SB Commissioner Hampton said:

“[105] I accept that the making of vexatious allegations against a worker, spreading rude and/or inaccurate rumours about an individual, conducting an investigation in a grossly unfair manner and some of the other allegations made by the applicant are capable of being considered as unreasonable conduct of the kind contemplated by s.789FD(1). This depends upon the nature of the actual conduct and the context. I also accept that a manager may be subject to bullying behaviour by employees who report to them.” 5 (Underlining added)

[23] However, when regard is had to the APS Commissioner’s response it is difficult to sustain an argument that his consideration of Ms Hodgkins’ complaint was conducted in a grossly unfair manner. To that end it needs to be recognised that not getting a decision that one seeks does not of itself make the process which lead to that decision “grossly unfair”.

[24] With regard to the decision in Naidu, Ms Hodgkins submitted that vexatious allegations against her in the APS Commissioner’s report constituted further bullying. 6 Ms Hodgkins did not identify the vexatious allegations she attributed to the APS Commissioner. However, I assume the reference may be to the following paragraph in the Commissioner’s letter of 6 May 2019:

“25. The material you have sent to my office and to my personal email address paints a picture of a deeply dissatisfied public servant who has a firmly held belief that her organisation has not adequately dealt with her original grievance about procurement/citizenship practices. During a period of over two years, your original disappointment/dissatisfaction appears to have changed into a situation where all adverse employment decisions are viewed as a personal reprisal, rather than as reasonable administrative action. Under my specified powers under the PS Act, I am not able to assist you in relation to your general workplace grievances against AFSA’s employees, except for the CEO.”

[25] While I accept that the Commissioner’s comments “pull no punches” and are particularly frank, it is difficult to characterise the comments as “vexatious allegations”.

[26] Another relevant consideration in respect of Ms Hodgkins’ application to amend in so far as it relates to the APS Commissioner is the statement in Ms Hodgkins’ email response of 7 May 2019 to the APS Commissioner’s decision of 6 May 2019 that that she was raising a public interest disclosure about the Commissioner’s conduct.

[27] Finally, I would observe that it is clear that Ms Hodgkins is particularly aggrieved by the APS Commissioner’s decision not to conduct an investigation into the allegations she made against the Chief Executive of AFSA. However, the appropriate mechanism for Ms Hodgkins to seek to have the Commissioner’s decision reviewed is via the ADJR Act and not the bullying jurisdiction under the Act.

Conclusion

[28] For all the above reasons, I decline to amend Ms Hodgkins bullying application to add the APS Commissioner as a person against whom bullying is alleged.

[29] In terms of next steps, Ms Hodgkins’ bullying application is listed for hearing on 24-26 July 2019. Further, Directions have separately been issued in respect of Ms Hodgkins’ application to amend her bullying application to add two other AFSA employees as persons against whom bullying is alleged.

Appearances:

K. Hodgins on her own behalf
C. Mann for the Australian Financial Security Agency

C. Rawson for the Australian Public Service Commissioner

Mention and Direction Hearing details:

2019

Canberra

May 17.

Printed by authority of the Commonwealth Government Printer

<PR708957>

 1   [2019] FWC 3344

 2   [2015] FWC 7312

 3 [2005] NSWSC 618

 4   [2014] FWC 2104

 5   Ibid at [105]

 6   The decision in Naidu is not authority for the proposition that vexatious allegations constitutes further bullying behaviour, though it is acknowledged that bullying behaviour can include the making of vexatious allegations against a worker.