Luis Perez
[2016] FWCFB 7667
•25 OCTOBER 2016
| [2016] FWCFB 7667 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
(C2016/4966)
SENIOR DEPUTY PRESIDENT ACTON |
|
Appeal against decision [[2016] FWC 4097] of Commissioner Hampton at Adelaide on 1 August 2016 in matter number AB2015/640.
Introduction
[1] Mr Luis Perez made an application for an order under the Fair Work Act 2009 (Cth) (FW Act) to stop bullying. The application alleged bullying by a group of individuals at the Alice Springs Hospital where Mr Perez worked as a cleaner. The hospital is part of the Northern Territory Department of Health.
[2] Sections 789FC, 789FD and 789FF of the FW Act concerning bullying are relevantly as follows:
“789FC Application for an FWC order to stop bullying
(1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.
(2) For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force.
Note: Broadly, for the purposes of the Work Health and Safety Act 2011, a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer…
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) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:
(a) the person is:
(i) a constitutional corporation; or
(ii) the Commonwealth; or
(iii) a Commonwealth authority; or
(iv) a body corporate incorporated in a Territory; or
(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;
then the business or undertaking is a constitutionally-covered business.…
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.”
[3] Commissioner Hampton heard the application and, on balance, was not satisfied that there was relevant unreasonable behaviour towards Mr Perez (and/or the group of workers to which he belongs), whilst at work, so as to meet the requirements of s.789FD of the FW Act. 1 The Commissioner went on to conclude as follows:
“[142] Given my findings in this matter, there is no basis to consider the making of orders as contemplated by s.789FF of the FW Act. Amongst other requirements, a finding of bullying conduct is a prerequisite for the making of orders.
[143] Accordingly, this application must be dismissed and I so order.” 2 [Endnotes omitted]
[4] Mr Perez has appealed the Commissioner’s decision. The appeal is opposed by the Northern Territory Office of the Commissioner for Public Employment (NT Office). This decision deals with that appeal.
Grounds of appeal
[5] The grounds of appeal raised by Mr Perez are, in summary, the following:
1. The Commissioner erred in failing to find the NT Office and Mr Gregory Meldrum deliberately spoiled evidence.
2. The Commissioner erred in failing to find Mr Meldrum and Ms Wendy Thomas committed bullying conduct against him.
3. The Commissioner erred in not treating the evidence of Mr Meldrum and Ms Thomas and the submissions of the NT Office with caution when they potentially contravened the Statutory Declarations Act 1959 (Cth) and/or criminal law.
[6] Mr Meldrum was described in the Commissioner’s decision as a Food and Environmental Services Manager responsible for the strategic management of Food and Environmental Services at the hospital, including the work of Mr Perez and Ms Thomas.
[7] Ms Thomas was described as a Housekeeping Cleaner at the hospital and a Leading Hand.
[8] We will deal with the grounds of appeal in turn.
Spoiled evidence
[9] The spoiled evidence was some CCTV footage and some “Swipe Reports”.
[10] In respect of the CCTV footage, the Commissioner noted that the hospital has a series of CCTV cameras in work areas that record images, without sound, on a rolling basis so that unless the images recorded are placed on hold they are recorded over or deleted within 14 days. The Commissioner also noted that all but a few of the images on the CCTV footage on which Mr Perez sought to rely in support of his application had not been placed on hold by the relevant persons, despite requests by Mr Perez at the relevant time that they be so preserved.
[11] The Commissioner found that Mr Meldrum was not aware of, and did not take, the steps in “Advice 7”, a document providing advice to agencies in relation to records management and related matters, which is issued by the Records Policy Unit of the Northern Territory Department of Corporate and Information Services. Further, the Commissioner was satisfied that the CCTV footage was not preserved by the relevant persons because they considered it to be of little, if any, utility.
[12] The Commissioner did not accept that the absence of the CCTV footage had led to any unfairness in the proceeding before him and his determination of Mr Perez’s application. In that regard, the Commissioner considered both the nature of the CCTV footage, being video footage without sound, and the circumstances of the matter before him, including the nature of the issues and the facts not in dispute. The Commissioner went on to say:
“[66] CCTV is by definition, limited in its utility to the extent that it is intended to assist the resolution of what was said, and to a large degree, the demeanour of the participants in a conversation. In that latter regard, where conduct is alleged to be demonstrable or involve physical contact, or where the location of the parties is in dispute and relevant to the determination of the matter, I would accept the benefit of having CCTV footage as part of the evidence.
[67] In this case, there is a dispute about the location of one exchange, but that location is not a relevant factor in determining the nature of the exchange. There is generally no dispute that exchanges took place between the relevant persons and there is no reasonable suggestion that the body language of any of the parties was so demonstrable that CCTV footage would assist to determine which account was correct. There is a dispute about whether Mr Perez walked between Ms Kelly and another employee who were having a discussion, and the CCTV footage concerned in relation to that event was preserved. Mr Perez did tender that footage as part of his case. However, he did not seek to rely upon that footage to support his case in regard to that particular incident, and for reasons outlined above, that footage is of no real assistance in that respect.
[68] In terms of the other CCTV footage that was available, Mr Perez only sought to rely upon it as an example of the fact that the CCTV footage should have been retained…
[117] I have earlier considered whether the failure to retain the CCTV footage created unfairness for Mr Perez. Mr Perez also contends that this failure was, in its own right, unreasonable conduct that formed part of the bullying behaviour.
[118] It is apparent to me that Mr Perez has a particular focus upon CCTV footage as a form of evidence. It is also clear to me that there are competing considerations surrounding the retention of such footage. That is, there are privacy considerations associated with the viewing and retention of CCTV footage and these must be weighed along with the potential value of such footage as evidence in relevant matters.
[119] In this case, I have found that the absence of the CCTV footage did not lead to unfairness. However, this arises from the particular circumstances including the nature of the exchanges in question and the extent of common ground that, in most cases, exchanges took place. I do, however, consider that the employer’s response to the request for the retention of the CCTV footage was not always appropriate, particularly in terms of the alleged incidents before this application became a known prospect. That is, there is no indication that management took any steps to ascertain why Mr Perez considered the CCTV footage to be relevant and no steps were apparently made to view the footage to consider whether there was any evidentiary value. At least the first of these steps should have been taken in all cases, and where some potential relevance was shown, the second step undertaken.” 3
[13] With respect to the “Swipe reports”, the Commissioner said:
“[38] As part of the final hearing in this matter, Mr Perez took exception to the form of the provision, by the employer, of some written evidence about access through a particular door in the hospital that became relevant. This was undertaken at the request of the Commission in response to a production application made by Mr Perez. Mr Perez contends that the action, allegedly by ‘unknown people’, of placing a piece of paper over the bottom half of the swipe card reports, prior to photocopying and producing them, is a contravention of s.39 of the Crimes Act 1914. Mr Perez informed the Commission, in his closing submissions that he intended to bring these reports to the attention of the Northern Territory Police to be checked by their forensic experts, in order to determine whether or not they had been tampered with. I note that in response, Mr Finlay explained that the swipe card reports show only the entries for the days requested, with the piece of paper covering other dates or locations…
[69] As outlined earlier, during the latter stages of the proceedings, a contention arose about the extent of access through a particular entry door to the Old ED area. This arose in the context of the allegation by Mr Perez that he had been ‘rudely awoken’ by Mr Meldrum during his rest break. Access through various doors at the hospital is gained by using access passes that are provided to each employee. Swipe card entries are recorded and may be reported. In the lead up to the final submissions, Mr Perez sought that a production order be made for the swipe card reports for 29 May 2016.
[70] In the absence of an apparent basis for that day to be relevant, I requested that the swipe card records of the relevant door for 29 May and 11 June 2016 (where there had been some evidence about that day) be provided by the employer, which did take place. On the eve of the hearing, Mr Perez indicated that the reference to 29 May 2016 was a mistake and that he was after the records for 9 May 2016. Mr Perez also sought a delay in the provision of final submissions; to enable that report to be provided and for submissions to be made. I declined that course of action on the basis that the request for the 9 May 2016 report had been made so late; there was ample opportunity for that clarification to be raised earlier; the nature of the evidence already before the Commission – including the fact that the material already presented did not provide a basis to suggest that the records were false or misleading and it was not disputed that employees did use the door in question; the marginal value associated with the evidence given the particular issue; and because the production of the material would inevitably further delay the conclusion of the matter.” 4 [Endnotes omitted]
[14] Before us, Mr Perez submitted that:
● the spoiling of the evidence was contrary to the records retention policy of the Northern Territory government and requests by Mr Perez to retain, and Orders of the Fair Work Commission (FWC) to produce, the CCTV footage and the “Swipe reports”,
● the Commissioner erred in finding that Mr Meldrum was unaware of the retention policy given Mr Meldrum’s 13 years of employment at the hospital,
● parts of the “Swipe reports” were intentionally and wilfully rendered unreadable or indecipherable in contravention of s. 39 of the Crimes Act 1914 (Cth) and s. 129 of the Queensland Criminal Code,
● the Commissioner erred in finding the evidence could be spoiled as long as the respondents to his case considered it to be of little if any utility, and
● the spoiled evidence was fatal to the case against him and to the success of his case.
[15] Accordingly, Mr Perez submitted, we must “hold and find”:
“(1) that Respondents are in contempt of the Commission for tampering of the Swipe Reports and for breach of primary commission’s two (2) Form F52s above mentioned in [19] above;
(2) that Respondents are deliberate spoilators of evidence as claimed by Appellant (AB 404-408);
(3) that Respondents intentionally spoilated CCTV footage evidence and Swipe Reports to deny Appellant a fair trial in order to frustrate/pervert the course of justice;
(4) that Respondents abused their Discovery Obligations by the above-mentioned misconducts and must suffer ‘omnia praesumuntur contra spoilatorem’”. 5
[16] We are not persuaded there is any appealable error in or arising from the Commissioner’s decision with respect to the “spoiled evidence”.
[17] It is apparent from the Commissioner’s decision that the Commissioner was conscious in making his decision of the concerns of Mr Perez about the “spoiled evidence”. This included his concerns about it having been spoiled notwithstanding the government’s retention policy and the requests of Mr Perez, before the Orders of the FWC and in contravention of criminal law, as well as his concerns that spoiling it was part of bullying behavior. The Commissioner’s finding about Mr Meldrum’s lack of awareness about the records retention policy was reasonably open to the Commissioner on the material before him. Mr Meldrum’s lengthy service does not of necessity preclude such a finding.
[18] Further, when the Commissioner’s decision is properly read, it is evident that the Commissioner did not find, as suggested by Mr Perez, that evidence could be spoiled as long as the respondents to his case considered it to be of little if any utility. 6
[19] Having regard to the material and submissions before him on the “spoiled evidence”, the matters the Commissioner was required to consider, be satisfied as to or take into account under the FW Act and the requirements to afford Mr Perez procedural fairness, in our view the Commissioner’s conclusions on the “spoiled evidence” were correct. This includes the Commissioner’s finding to the effect that there was no unfairness to Mr Perez arising from the spoiled evidence.
No bullying conduct finding
[20] With respect to the claim of Mr Perez that the Commissioner erred in failing to find bullying conduct against him, Mr Perez submitted to us that the actions of Ms Thomas could not be reasonable management action because Ms Thomas was not a so called “Lead Hand”.
[21] Mr Perez also submitted that the Commissioner erred in finding Mr Meldrum’s act of disrupting Mr Perez in the middle of his tea break was reasonable management action because:
● Mr Perez was not working during the tea break and Mr Meldrum had no managerial oversight to disrupt Mr Perez,
● Mr Meldrum was not required to submit a Fair Work Commission Form F74 - Response from a person against whom bullying has been alleged to an application for an order to stop bullying,
● Mr Perez was ambushed by the evidence of Mr Meldrum as to why he disrupted Mr Perez during the tea break,
● the reason Mr Meldrum gave for disrupting Mr Perez was debunked during cross-examination, and
● there was nothing prohibiting Mr Perez from being in the area in which he took the tea break and other employees accessed the area.
[22] Mr Perez further submitted the Commissioner erred in failing to find that Ms Thomas calling Mr Perez a “pig” constituted unreasonable bullying behavior.
[23] In addition, Mr Perez submitted that the Commissioner erred in finding that Mr Meldrum was not in connivance with Ms Thomas, in circumstances where Mr Meldrum did not exercise his managerial responsibilities in respect of the bullying conduct of Ms Thomas, Mr Meldrum failed to implement or act on the employer’s record retention policy and on 9 May 2016 Mr Meldrum bullied Mr Perez.
[24] We have concluded from the material before the Commissioner that it is evident that Ms Thomas was a Leading Hand at the relevant times. Therefore, the submission that the actions of Ms Thomas could not be reasonable management action because she was not a Leading Hand is without foundation. Moreover, it is apparent from the Commissioner’s decision that he did not rely on the actions of Ms Thomas being reasonable management action. In his decision the Commissioner said that “[i]n the circumstances, it was not necessary to determine whether the actions of Ms Thomas, as a Leading Hand, would constitute management action given my findings.” 7
[25] We are not persuaded the Commissioner erred, as submitted by Mr Perez, in finding that in all the circumstances the actions of Mr Meldrum in respect of the tea break incident on 9 May 2016 were reasonable and appropriate, and were reasonable management action taken in a reasonable manner.
[26] In respect of the tea break, the Commissioner said:
“[46] …I do, however, consider that Mr Meldrum, at one point in his evidence, exaggerated to some extent the degree of immediate risk in explaining why it was inappropriate for Mr Perez to be sleeping in the Old ED area…
[51] Mr Perez contends that I should exclude the evidence of Mr Meldrum about the Old ED area and in particular that evidence going to whether it was an area that should not be generally accessed by the staff. Mr Perez describes that as being ‘ambush evidence’, in that it was not set out in the witness statement of Mr Meldrum filed in advance of his oral evidence. I have not excluded that evidence for the following reasons. The evidence arose directly from the testimony given by Mr Perez in cross-examination about the suitability of the Old ED area for him to take a nap and was consistent with the evidence already advanced by the respondent parties. Further, the evidence about those matters was put to Mr Perez during that cross-examination and during the course of the hearing and submissions in this matter, Mr Perez had a reasonable opportunity to deal with that material. This included considerable latitude being afforded to Mr Perez to provide additional evidence after he had closed his evidentiary case…
[76] Mr Meldrum is a Food and Environmental Services Manager responsible for the strategic management of Food and Environmental Services at the Alice Springs Hospital. This includes the work of Mr Perez and the other individuals who are parties to this application…
[106] The context for this incident is that Mr Perez had apparently made a practice of taking a nap during his rest breaks in an area of the hospital known as the Old ED. This involved Mr Perez setting up a place to nap where he would also store cans of soft drink. He would, during a break, grab a container with ice and drink the soft drink. There were no proper crib facilities in that immediate area, although that area could be used to access some toilets and lockers in an adjacent area.
[107] Mr Perez contends that on 9 May 2016, he was resting his eyes, during his 15 minute tea break, in one of the darkened unused rooms in the Old ED. He alleges that Mr Meldrum rudely woke him and demanded that he vacate the room. Mr Meldrum further requested that Mr Perez spend his breaks in the staff room in front of the kitchen.
[108] Mr Perez described the incident as making him feel disrespected, intimidated and belittled and contends that it was an unreasonable request of Mr Meldrum to ask him to take his lunch and tea breaks in the staff room instead of the Old ED.
[109] On 9 May 2016, Mr Perez emailed a HR representative with a complaint against Mr Meldrum and requested that the CCTV footage be preserved. This occurred.
[110] The employer contends that Mr Perez was found asleep in an area at a time that did not correspond with his scheduled break. It was also evident that Mr Perez had turned the area into a form of alternative crib facility. Mr Meldrum gave evidence that there is currently construction activity occurring in the space, and further that Mr Perez would have walked past a sign that said ‘Construction Area’ or ‘Construction Zone’ when he entered the area to rest his eyes. He also contends that Mr Perez has an allocated locker space in the staff tea room which is adjacent to the cleaners’ room, and further that there is a refrigerator and storage area for food. On that basis, the employer contends that there is no real need for Mr Perez to be entering the Old ED area unless he was undertaking cleaning of the adjacent offices and that the area was inappropriate for use in the manner described above.
[111] Furthermore, the employer contends that Mr Perez’s security pass was used to enter the Old ED 4 times on 11 June 2016; despite the request from Mr Meldrum to cease taking breaks in that area.
[112] Accordingly, there is a dispute as to whether the Old ED area was part of a construction zone, or more particularly whether Mr Perez’s presence represented a safety risk. I find that whether it was or was not part of an active construction zone, it was not an appropriate area for a tea break. That is, the Old ED area is part of, or leads to a construction zone and some minor work (moving ceiling tiles) may take place in that area from time to time. However, it is reasonably apparent that any serious construction work is taking place behind panelled construction hoardings. Although it was not a no-go zone and others accessed the area from time to time for reasons including to get to adjacent facilities that should be cleaned, there were no crib facilities in the immediate area where Mr Perez was camping and it would not be reasonably expected that an employee would exploit a largely unused section of the hospital in that manner.
[113] I do accept that Mr Perez may well have been taking his break at the time. That is, although it was not scheduled at that time, there was apparently some flexibility in the precise timing of those breaks. However, it was reasonable that in these circumstances Mr Meldrum should seek to ascertain what was taking place. He enquired as to whether Mr Perez was alright, and when he awoke, Mr Meldrum advised Mr Perez that he should not be taking his break in that area and that he should be using the crib facilities provided. Mr Perez questioned the location of the crib facilities and whether there was a working microwave.
[114] Importantly, Mr Perez was not counselled or warned about his use of the facilities. That is, he was advised that he should not be sleeping or taking his breaks in the Old ED area but was not disciplined about doing so to that point. This was appropriate because although it might well have been obvious that employees should not be using this area in that manner, Mr Perez had not been informed of that fact and there were no express instructions about such matters.
[115] I also note that although Mr Perez and other workers have a right to a tea break this would not mean that the break can be taken at any place within the hospital.
[116] In all of the circumstances, the actions of Mr Meldrum in terms of the 9 May 2016 incident were reasonable and appropriate. It was reasonable management action taken in a reasonable manner.” 8 [Endnotes omitted]
[27] In our view, the fact that Mr Perez was not working during the tea break is irrelevant to whether the actions of Mr Meldrum were reasonable management action. Mr Perez was at work at the relevant time. Further, as Mr Perez pointed out to us, the relevant enterprise agreement provides that the period of such breaks is to be regarded as time on duty for all purposes, with employees not being at liberty to leave the workplace during the period. The notion that Mr Meldrum had no managerial oversight of Mr Perez is without foundation given Mr Meldrum’s position.
[28] We also consider the absence of a Form F74 from Mr Meldrum is of no consequence in this matter given the manner in which the matter proceeded before the Commissioner. As the Commissioner correctly indicates in his decision, there can be no suggestion that Mr Perez was denied procedural fairness by the absence of the Form F74 or the evidence of Mr Meldrum about his disruption of the tea break.
[29] It is apparent from the Commissioner’s decision that the Commissioner was alive to the deficiencies in Mr Meldrum’s evidence about why he disrupted Mr Perez and to the fact that there was nothing prohibiting Mr Perez from being in the area in which he took the tea break and that other employees accessed the area. However, these considerations do not of necessity preclude a finding that the actions of Mr Meldrum in respect of the tea break incident were reasonable management action taken in a reasonable manner. This is particularly so given the other matters on which the Commissioner relied in support of his finding in this regard.
[30] In respect of the “pig” incident, the Commissioner said:
“[91] On 29 December 2014, Mr Perez was in the cleaners’ room. It is common ground that Mr Perez, without warning, gave a loud burp. Upon exiting the room, and in the presence of other cleaners, Ms Thomas called Mr Perez a ‘pig’.
[92] Mr Perez accepts that he burped but contends that in the Asian culture (where he previously lived), it was common practice and indeed a compliment to burp and that it was not necessary to excuse oneself. He further contends that the region of his original country is dominated by people of the ‘Muslim religion’ and thus for him it is very offensive to call someone a ‘pig’.
[93] On or around 30 December 2014, a meeting was conducted by Ms Sauvana. At the meeting Ms Sauvana requested both Mr Perez and Ms Thomas to shake hands and forget everything in the past. I note that there was little, if any, discussion about the events and this meant that Mr Perez did not describe the significance of being called a ‘pig’ and there was no real discussion about Ms Thomas’ perspective on the events. Whilst an informal meeting may have been appropriate, this was an inadequate process for dealing with the circumstances. I will return to this aspect later in this decision.
[94] It is clear to me that the incident took place largely in the manner advanced by both parties. That is, Mr Perez burped loudly and did not consider that such would cause offence or that an apology was necessary. Ms Thomas considered that this action was rude and called Mr Perez a ‘pig’, which was communicated in a manner that was not intended to be offensive. In many circumstances, nothing would flow from such an exchange. The absence of a mutual understanding about the competing cultural norms has meant that this incident has become more significant, at least for Mr Perez.” 9 [Endnotes omitted]
[31] It is apparent the Commissioner considered the “pig” incident in his decision. We are not persuaded the Commissioner erred in how he regarded this incident having regard to the circumstances surrounding its occurrence.
[32] In respect of the alleged connivance, the Commissioner said:
“7.8 The manner in which Perez’s complaints were dealt with
[120] This consideration includes the contentions made by Mr Perez that the employer did not investigate or properly deal with his various allegations and acted both unreasonably and in a manner inconsistent with the relevant policy.
[121] The relevant policy requirements include:
- Employees to take responsibility for raising concerns at a local level. They must also consider what actions could be taken to resolve their concerns, whether they have contributed to the situation, and to ensure that they contribute to the resolution in a reasonable and timely manner.
- Managers to be proactive in addressing any potential conflict, issue or concern and to judge all complaints on their merits and facts. Furthermore, they should take complaints seriously and treat complainants with sensitivity, respect and courtesy. They are to endeavour to have all workplace conflicts disclosed and acted upon, ensure lines of communication are kept open and consider whether they have contributed to the situation complained about. They should use all necessary steps to prevent complaints escalating and ensure appropriate action is taken if the complaint is substantiated.
[122] The policy also sets out a complaint process involving four steps which are as follows:
- Step 1: Consider the approach and take initial action
- Step 2: HR Services or other support
- Step 3: Escalation (only required when resolution is not reached through Steps 1 and 2)
- Step 4: Employee’s right to request review of action or decision.
[123] It is a reasonable inference that Mr Perez does not consider that his complaints were taken seriously when first advanced. There is some justification for this view, at least in relation to the earlier matters. That is, although the policy contemplates matters being resolved at a local level, there is an obligation on a manager to be proactive in addressing potential conflict and dealing with complaints. Further, although I have ultimately found, after detailed consideration of the evidence, little substance, I do not consider that all of the complaints made by Mr Perez were given sufficient attention when first made. Unfortunately, the lack of attention has, in some ways, then become the focus rather than the allegations themselves and opportunities to informally clarify the reasonable expectations of management, and Mr Perez, were not taken.
[124] It is also the case that Mr Perez did not use the complaint process to escalate many of the matters he had raised and this does lead to the conclusion that he was, in effect, willing to store up the matters to bolster his case against Ms Thomas.
7.9 Connivance between Thomas and Meldrum (and others)
[125] Mr Perez contends that Ms Thomas and Mr Meldrum (and others) ‘connived’ in the bullying conduct. He relied upon the concept of connivance including overlooking, being a secret accessary or failing to take steps to prevent it. This allegation was based, in part, upon the suggestion that Mr Meldrum did not properly deal with the allegations. I have largely dealt with this aspect earlier in this decision. To the extent that matters could have been handled differently, this does not suggest that there was any connivance in this case.
[126] This allegation also relies upon the fact that in the initial response provided to the application, Ms Thomas’ contact was nominated as being Mr Meldrum. In that regard, I note that when the original application was made by Mr Perez, Ms Thomas’ contact was nominated by him as being Mr Meldrum. Given that Ms Thomas does not have an individual work email address, this course of action was appropriate. However, to suggest that the employer following the same approach in the response document means that there was connivance between them, is simply without merit.
[127] Mr Perez also relied upon his submissions about the allegedly false evidence given by Mr Meldrum about the status of Ms Thomas, the conduct of Ms Thomas, and the events of 9 May 2016 as support for this proposition.
[128] There is no substance to this allegation.” 10 [Endnotes omitted]
[33] We concur with the Commissioner that the fact that the allegations of Mr Perez could have been dealt with differently, including by Mr Meldrum in the exercise of his managerial responsibilities, does not suggest that there was any connivance between Mr Meldrum and Ms Thomas. The failures of Mr Meldrum in respect of his managerial responsibilities are insufficient to make out the connivance submitted by Mr Perez.
[34] Nor are we persuaded that Mr Meldrum’s failures in respect of the records retention indicate he was in connivance with Ms Thomas. His failures in that regard are not “clear and irrefutable” evidence, as Mr Perez put it, that Mr Meldrum was in connivance with Ms Thomas. 11 We think the Commissioner’s findings on the reasons for those failures were reasonably open to the Commissioner and correct.
[35] We also think the Commissioner’s findings that in all of the circumstances, the actions of Mr Meldrum in terms of the 9 May 2016 incident were reasonable and appropriate, and that it was reasonable management action taken in a reasonable manner were, on the material before the Commissioner, reasonably open to him and were correct.
[36] Accordingly, we are not persuaded the Commissioner erred as suggested by Mr Perez in his finding to the effect that Mr Meldrum was not in connivance with Ms Thomas.
[37] For the reasons given above, we are not persuaded the bases on which Mr Perez relies establish any appealable error in the Commissioner’s failure to find there was bullying conduct against Mr Perez meeting the requirements of s.789 FD of the FW Act.
Potential legal contraventions
[38] There is no sound basis for concluding that the matters Mr Perez alleges constituted potential contraventions of the Statutory Declarations Act 1959 (Cth) and criminal law and the relevance of the alleged potential contraventions were not appropriately taken into account by the Commissioner when dealing with the evidence before him and making his decision on Mr Perez’s application. Mr Perez’s submission that the Commissioner erred in not treating the evidence of Mr Meldrum and Ms Thomas and the submissions of the NT Office with caution when they potentially contravened the Statutory Declarations Act 1959 (Cth) and/or criminal law is without foundation.
Conclusion
[39] Having regard to our findings and conclusions above in respect of the grounds of appeal raised by Mr Perez, and the absence of circumstances that attract the public interest, we are not satisfied we should grant Mr Perez permission to appeal in the public interest or otherwise. We decline to grant him permission to appeal and, to the extent necessary, dismiss his appeal.
SENIOR DEPUTY PRESIDENT
Appearances:
L Perez on his own behalf.
M Hathaway of the Northern Territory Office of the Commissioner for Public Employment, for the employer.
Hearing details:
2016.
Melbourne, Darwin and Alice Springs (video hearing):
October 20.
1 Luis Perez, [2016] FWC 4097 at [141].
2 Luis Perez, [2016] FWC 4097.
3 Ibid.
4 Ibid.
5 Appellant’s Outline of Submissions dated 26 August 2016 at paragraph 21.
6 See, for example, paragraph 63 in Luis Perez, [2016] FWC 4097.
7 Luis Perez, [2016] FWC 4097 at [133].
8 Luis Perez, [2016] FWC 4097.
9 Ibid.
10 Ibid.
11 Appellant’s Outline of Submissions dated 26 August 2016 at paragraph 44.
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