Lev Shinkarsky v Yarra City Council
[2024] FWC 1158
•3 MAY 2024
| [2024] FWC 1158 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Lev Shinkarsky
v
Yarra City Council and another
(AB2024/69)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 3 MAY 2024 |
Application for an order to stop bullying – application dismissed
This decision concerns an application made by Lev Shinkarsky for an anti-bullying order under s 789FC of the Fair Work Act 2009 (Act). Mr Shinkarsky contends that at various times from September 2023 he was subjected to bullying by his employer, Yarra City Council, and its infrastructure manager, Peter Moran. The Council and Mr Moran (respondents) deny that Mr Shinkarsky was bullied and oppose the making of an order.
A worker is ‘bullied at work’ if, while the worker is at work in a constitutionally covered business, an individual or group of individuals ‘repeatedly behaves unreasonably towards the worker’ and that behaviour ‘creates a risk to health and safety’ (s 789FD(1)). The Commission is empowered to make an anti-bullying order if it is satisfied that the worker ‘has been bullied at work’ (s 789FF(1)(b)(i)), and that there is also ‘a risk that the worker will continue to be bullied at work’ (s 789FF(1)(b)(ii)).
Mr Shinkarsky gave evidence about the circumstances which he believes amounted to bullying. In brief summary, this evidence, which Mr Shinkarsky adopted in part from his application and written submissions, and which he supplemented in oral evidence, was to the following effect:
· On 18 September 2023, and again on 20 September, Mr Moran yelled at him in front of other employees and accused him of making numerous mistakes without providing him with any details or evidence. Mr Moran removed Mr Shinkarsky as the manager for public lighting projects because he had allegedly failed to perform to the required standard, but this was not true.
· Mr Moran later sent him an email stating that he was ‘incapable’ of doing the public lighting project, when in fact he had been successfully doing this work for 25 years.
· Around this time, Mr Moran told him that he had taken too many days of personal leave, but he had been absent for only 24 days in the past 12 months.
· From late September 2023, he was required to come into the office five days a week, supposedly for the purpose of allowing the Council to monitor his performance, while all other employees were able to work three days a week in the office and two days from home.
· On 20 November 2023, he made an internal anti-bullying complaint to the Council, but the response he received did not satisfactorily address his concerns.
· On 31 January 2024, the Council’s general manager sent him an email stating that he had spoken to Mr Moran and given him some advice but did not say what this was. Mr Shinkarsky then lodged his anti-bullying application in the Commission.
· At a meeting on 21 March 2024, he was invited to consider taking up different roles at the Council, but he declined because these were all at lower rates of pay.
· On 21 March 2024, he was told that the internal investigation into his bullying complaint had found two of his allegations partly substantiated, but he was not told which ones, or which parts. He was told that his previous supervisor, Ciaran Maher, would be his manager.
· Mr Shinkarsky said that Mr Maher had also been involved in ‘intentional negative actions’ towards him: on 31 January 2024, Mr Maher sent him an email claiming that he had been absent during working hours; on 6 February 2024, Mr Maher sent him an email containing an accusation about being away from his desk; and also on that day, Mr Maher and Mr Moran told him off for having a non-work discussion with a colleague.
· Mr Shinkarsky said that he was a good worker and that no concerns had been raised about his performance by his immediate manager, Kisina Sofele. He believed Mr Moran and Mr Maher had behaved unreasonably towards him.
· He stated that this conduct had left him feeling anxious whenever he needed to be in the office, and that he had developed insomnia and high blood pressure and had started taking medication. He has been on sick leave since 7 February 2024.
· Mr Shinkarsky said that he felt that the Council had him under surveillance and that its attitude to him was affecting his health. He said that he did not believe that the Council would provide him with support and assistance if he returned to work.
Mr Shinkarsky submitted two brief witness statements from unidentified persons who spoke about Mr Moran’s interaction with Mr Shinkarsky on 18 and 20 September 2023. I decline to have regard to these documents because they contain anonymous hearsay. The Commission is not bound by the rules of evidence but generally applies them as they reflect principles of fairness and probative value. It is not safe or fair for the tribunal to rely on an unattributed hearsay statement.
Monique Bateman, the Council’s manager of people and culture, gave evidence that the Council did not consider that Mr Shinkarsky had been subjected to bullying. Her evidence was to the following effect:
· Mr Shinkarsky’s regular supervisor, Mr Maher, had been on extended leave in 2023, and his temporary supervisor, Mr Sofele, had been struggling. Mr Moran, who is Mr Sofele’s manager, had been assisting him with some of his duties, including in relation to the management of Mr Shinkarsky.
· The Council had required Mr Shinkarsky to attend the office 5 days a week as a means of managing his performance and also to provide him with appropriate support.
· The Council’s investigation of Mr Shinkarsky’s internal complaint had found that two of the nine allegations he had raised were partly substantiated, namely that Mr Moran had raised his voice at Mr Shinkarsky on 18 and 20 September 2023. However, it found that Mr Moran had not yelled at him. Action was taken in the form of counselling. Mr Moran had expressed remorse. While the conduct was not acceptable, it did not amount to bullying.
· Ms Bateman and a colleague met with Mr Shinkarsky on 21 March 2024 and advised him that two of his allegations had been found to be substantiated in part. They also told him that the Council’s requirement that he work five days a week in the office had been reviewed and would now cease. He would have the same working from home arrangements as other employees. The requirement that he attend the office 5 days a week had been reasonable in light of the Council’s concern about his performance.
· At the meeting on 21 March 2024, Ms Bateman asked Mr Shinkarsky for permission to contact his doctor in order to seek information on his medical condition and his return to work, but he declined to give his permission.
· The Council believed that there was a reasonable basis for its concerns about Mr Shinkarsky’s performance and that it and Mr Moran had taken reasonable management action to address these concerns.
· The Council continued to seek his permission to contact his doctor to obtain information on what support he might require in order to return to work.
· The Council wants Mr Shinkarsky to return to work and perform to the best of his ability. It does not want him to feel like he is looking over his shoulder.
Mr Moran gave evidence to the following effect:
· He had various interactions with Mr Shinkarsky in 2023 while helping Mr Sofele deal with Mr Shinkarsky’s performance issues. He had known Mr Shinkarsky for some years and they had previously got on well, but they did not have regular contact.
· On 18 September 2023, he asked Mr Shinkarsky why he had still not returned a work phone that had been recalled by the Council, and Mr Shinkarsky requested yet another extension, which he granted. Mr Moran was frustrated with Mr Shinkarsky’s failure to return the phone. He acknowledged that during the conversation he raised his voice, but not to the point of yelling.
· On 20 September 2023, he had a meeting with Mr Shinkarsky to address concerns about his performance but Mr Shinkarsky kept interrupting. Mr Moran raised his voice slightly to cut across these interruptions, but he did not yell.
· Mr Moran said that he should not have raised his voice and that he apologised for doing so. He had been a manager at the Council for 11 years and had never previously been the subject of any complaints. He also noted that he was unlikely to have regular contact with Mr Shinkarsky now that Mr Maher had returned and was again Mr Shinkarsky’s supervisor.
I make the following findings. First, I accept Mr Moran’s evidence that he raised his voice on 18 and 20 September 2023, but not to the point of yelling. The difference is potentially a fine one, and as Mr Shinkarsky said, even with an instrument recording, there could be disagreement about when one crosses the line. I also find that Mr Moran is sincere in his regret about having raised his voice on those days. I note that Mr Moran has been employed at the Council for 11 years and that he has not been the subject of any other complaint, either prior to September 2023 or since. It is understandable that Mr Shinkarsky might be upset by Mr Moran’s raised voice. Raised voices are to be avoided in the workplace but rare deviations should not be judged too harshly.
Secondly, I find that the Council took Mr Shinkarsky’s complaint seriously. It investigated the matter and reach a reasonable conclusion. In my opinion the Council should have told Mr Shinkarsky which allegations had been upheld in part and why. This might have helped him to put the matter behind him. Its failure to do so however was not unreasonable conduct that created a risk to health and safety.
Thirdly, even if the two instances of the raised voice amounted to repeated unreasonable conduct, I do not consider that they amounted to bullying because I am not persuaded that they caused a risk to health and safety. The fact that Mr Shinkarsky says that he is unwell and that he believes that this and other conduct has adversely affected his health is not sufficient. Generally there must be objective evidence that demonstrates the existence of a particular risk to health and safety, as well as evidence to sustain a conclusion that there is a causative link between the impugned conduct and that risk, rather than some other cause for the risk. Further and in any event, I find that it is very unlikely that there will be further episodes of a raised voice being directed at Mr Shinkarsky, firstly because Mr Moran genuinely regrets raising his voice and in my view will not raise his voice again, and secondly because Mr Moran and Mr Shinkarsky will have little contact now that Mr Maher has returned to work and is managing Mr Shinkarsky, and Mr Moran sits two levels of management above him.
Fourthly, it was not unreasonable of Mr Moran to say that he believed Mr Shinkarsky was incapable of undertaking the public lighting project. What he meant by this was that he believed Mr Shinkarsky was presently incapable of doing this, not that he was intrinsically incapable of it. Mr Moran noted in his evidence that Mr Shinkarsky was a capable worker. In any event, it is not unreasonable for a manager to express a sincerely held opinion about a worker’s performance or capacity. That is core business for a person whose job involves managing people.
Fifthly, I find that the Council had concerns about Mr Shinkarsky’s performance and that this was the reason that he was required to attend the office five days a week. This was a reasonable requirement. It is irrelevant in these proceedings whether Mr Shinkarsky’s performance was poor or good. The Council’s concerns were genuinely held.
Sixthly, based on Mr Shinkarsky’s own evidence, I am not persuaded that his current supervisor, Mr Maher, acted unreasonably towards him. The three examples cited by Mr Shinkarsky are ordinary encounters between a manager and a worker concerning conduct and performance. There is no indication of anything inappropriate or unreasonable on Mr Maher’s part. Mr Maher’s email to Mr Shinkarsky of 31 January 2024 was attached to Mr Shinkarsky’s submissions. It politely asked Mr Shinkarsky to let him know what work he had done that morning, and noted that, from Mr Maher’s observations, Mr Shinkarsky had been away from his desk for most of the time despite having no meetings in his calendar. Mr Maher also said that he had seen Mr Shinkarsky having several conversations and phone calls and asked whether these were related to work. Mr Maher’s email of 6 February 2024 asked Mr Shinkarsky where he had been between 11.20 and 12.40 that morning, as he had been absent yet had no meetings in his calendar. These are perfectly reasonable questions for Mr Maher to have put to Mr Shinkarsky. The tone of the email messages is polite and professional. As to Mr Shinkarsky’s account of his interaction with Mr Moran and Mr Maher on 6 February 2024, I find this too to be a routine matter not involving unreasonable behaviour on their part.
Finally, I accept Ms Bateman’s statement that the Council wants Mr Shinkarsky to return to work and that it does not want Mr Shinkarsky to feel like he is looking over his shoulder. I am confident that the Council will bear this in mind when he returns to work. Equally however the Council needs to be able to address its concerns about Mr Shinkarsky performance. I also consider that Mr Shinkarsky should allow the Council to seek further information from his doctor about how it can facilitate his return to work.
Mr Shinkarsky has a different perception about many of these matters. He genuinely believes that he has been subjected to bullying and that there is a risk of this recurring. But the Commission must make an objective assessment of the evidence and make findings based on the balance of probabilities. I am not persuaded that Mr Shinkarsky was bullied at work, or that there is a risk that he will be bullied at work in the future. The jurisdictional requirement in s 789FF(1)(b)(ii) has not been established. The application is dismissed.
DEPUTY PRESIDENT
Appearances:
L. Shinkarsky for himself
M. Bateman for Yarra City Council
Hearing details:
2024
Melbourne
1 May
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