Matthew Schokman
[2023] FWC 2103
•23 AUGUST 2023
| [2023] FWC 2103 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Matthew Schokman
(SO2022/408)
| COMMISSIONER MCKINNON | SYDNEY, 23 AUGUST 2023 |
Application for an order to stop bullying – whether applicant bullied at work – whether reasonable management action
Mr Matthew Schokman is employed as a Plumber by Chiswick Plumbing Group Pty Ltd (Chiswick Plumbing) in Sydney, New South Wales. Chiswick Plumbing is part of a network of plumbing companies, including Network Plumbing, Killara and Rose Bay Plumbing (Killara Plumbing) and On the Go Plumbing. The business of Chiswick Plumbing is primarily domestic maintenance plumbing works, servicing strata, commercial and residential clients. Its office is based in Terrey Hills and it has storage and meeting facilities in Concord.
On 16 August 2022, Mr Schokman applied to the Commission for orders to stop bullying at work. The application alleges bullying behaviour in relation to Mr Schokman while he was at work at Chiswick Plumbing, by Mr Nathan Broughton (General Manager of Chiswick Plumbing), Mr Joel Celnikier (Plumber/Quoter) and Mr Greg McElroy (Consultant).
A worker is “bullied at work” if a person or group repeatedly behaves unreasonably towards the worker (or a group of workers of which they are a member) while they are at work in a constitutionally-covered business, and the behaviour creates a risk to health and safety.[1] Bullying at work does not include reasonable management action carried out in a reasonable manner.
If a worker has been bullied at work and there is a risk that the bullying behaviour will continue, orders can be made to prevent its recurrence. The scope of the discretion to make orders of this kind is broad.
It is not in dispute that Mr Schokman is a worker for the purposes of Part 6-4B of the Fair Work Act 2009 (Act) and that Chiswick Plumbing is a constitutionally‑covered business. The question is whether I am satisfied that Mr Schokman has been bullied at work by the individuals named in his application, and if so, whether I am satisfied that there is a risk that he will continue to be bullied at work by those individuals.
On the evidence, I am not satisfied that Mr Schokman has been bullied at work by the individuals named in his application. It follows that I cannot be satisfied that there is a risk that Mr Schokman will continue to be bullied at work by those individuals. The application will be dismissed.
These are my reasons.
Alleged bullying behaviour
The alleged bullying behaviour is described by Mr Schokman in his Form F72 application, which he adopted as his evidence in the proceeding. In summary, Mr Schokman alleges that he was subject to bullying behaviour:
1.Several months before August 2022, when Mr Celnikier spread rumours within the business about his ability to perform plumbing work,
2.On 11 August 2022, when Mr Celnikier called him while he was on sick leave about a job that had “gone south” the day before. Mr Celnikier is alleged to have started yelling, swearing and aggressively shouting at Mr Schokman, including by saying “Mind your own fucking business” and “Just to let you know you are not fucking welcome here and nobody wants you so don’t come to the dinner tonight as nobody wants you there and I will be fucking coming for you”,
3.On 12 August 2022, when Mr Schokman was called into the office for a meeting with Mr Broughton and Mr McElroy and told that he was no longer fit for Chiswick Plumbing, had lost the support of his colleagues, was struggling with his management duties, and an opportunity had come up at Killara Plumbing, and
4.On 13 and 15 August 2022, when Mr Schokman was pressured to relocate from Chiswick Plumbing to Killara Plumbing for 3 months training.
Submissions filed by Mr Schokman some 7 months after his application sought to expand the scope of the alleged bullying to include Chiswick Plumbing’s failure to clarify and pay him under the employee bonus scheme. The matter does not form part of the alleged bullying behaviour that underpins his application and there is no evidence to support it. Accordingly, this decision deals only with whether Mr Schokman has been bullied at work as alleged in his application.
Relevant background
Mr Schokman initially worked for Chiswick Plumbing Pty Ltd from 2009 to 2013. After a 5‑year hiatus, he returned to the business on 13 August 2018, working closely with the former owner of the business, Mr Lorenzo Poletto. This included managing the business while Mr Poletto was away and unwell. Mr Schokman had aspirations of buying the business one day.
Instead, Mr Poletto decided to sell the business to another entity. About a week before the sale went through, the new owners had a brief discussion with Mr Schokman about him buying in. This went nowhere and on 1 November 2021, Mr Poletto sold the business of Chiswick Plumbing Pty Ltd to Chiswick Plumbing Group Pty Ltd. The new owners installed Mr Nathan Broughton as General Manager. After Mr Schokman gave the new owners the impression that he only had a few modules left to complete his trade qualification, he was offered continuing employment as a Plumber in the installing side of the business. In the months that followed, new employees were also brought into the business, including Mr Joel Celnikier.
On 11 or 15 March 2022, Mr Schokman called Mr Broughton and asked him to meet him and two other plumbers on site. Mr Broughton agreed and attended the site. Mr Schokman proceeded to say that they had found another job at a competitor business and would stay if he agreed to proposed changes in their duties. At the time, the business was dealing with an increase in working from home arrangements in the community and a corresponding increase in workload. Mr Broughton did not want to lose three plumbers. After hearing them out, it was agreed that the employees would remain with Chiswick Plumbing.
On 15 March 2022, Mr Celnikier was at a job with Mr Matt Montibekler (plumber) and Mr Nathan Waltho (apprentice). He overheard Mr Waltho talking on the phone to Mr Schokman about two other plumbers, Mr Alex Stavrou and Mr Zaid Dubois. He heard Mr Schokman say, in words to the effect:
“Alex and Zaid went into the office and the reason why they had a meeting with Nathan (Broughton) is because they told him they were going to quit if Nathan didn’t sack Joel.”
Mr Celnikier got in his truck to leave the job and called Mr Broughton to ask if what Mr Schokman had said was true. Mr Broughton denied it “absolutely” and said he had nothing to worry about. Mr Celnikier told Mr Broughton not to do anything about it as he wanted to work with the employees involved.
On 16 March 2022, Mr Celnikier did not attend work. He was feeling anxious and thought no one liked him. He wondered if he should stay at Chiswick Plumbing. During the day, Mr Broughton sent him a message to ask if he was “all good”. In response, Mr Celnikier replied:
“I am not happy. I don’t think this position is suited to me. I think I am going to resign.”
Later that day, Mr Celnikier sent Mr Broughton his resignation. Mr Broughton called him and said, in words to the effect:
“Hey mate. You are going to have your ups and downs. It is just how you deal with it. Rest assured you have a support system here. We will get to the bottom of it and sort things out. Just give it some thought. You are a great guy and an asset, and we want you to be here. We think there are teething issues that we are seeing since taking on the Chiswick Plumbing business.”
Mr Celnikier thought about it overnight and decided to withdraw his resignation. The next day, 17 March 2022, he spoke to Mr Schokman over the phone and said, in words to the effect:
“I haven’t done anything to Alex or Zaid. I don’t get why they don’t like me. I haven’t even properly met them.
Mr Schokman replied, in words to the effect:
“That is what they are like. They are just jealous of you because you are the new person and you are winning quotes and they have something to compete against.”
Later on 17 March 2022, Mr Broughton spoke to Mr Celnikier and asked him to stay back after the next day’s team meeting, to meet with Mr Stavrou and Mr Dubois and sort out whatever the issues were. Mr Celnikier was anxious about doing so but agreed. He rang Mr Schokman to ask how he should approach the meeting, and Mr Schokman advised that he speak his mind and not “back down”.
On 18 March 2022, Mr Celnikier met with Mr Broughton, Mr Stavrou and Mr Dubois as agreed. Mr Broughton told them they needed to learn to get along; to work together rather than against each other; and not to gossip about each other. He encouraged them to build a working relationship as quoters, including by working on bigger jobs together. Mr Stavrou said he hadn’t really had any issues with Mr Celnikier, as they had not even met. Mr Celnikier’s concern about them not liking him was appeased, and at the end of the meeting they all shook hands.
After the meeting, Mr Dubois approached Mr Celnikier and then Mr Stavrou joined them. Mr Dubois told Mr Celnikier that he had a feeling Mr Schokman was “doing it to you too”. Mr Celnikier asked what he meant, and Mr Dubois said, in words to the effect:
“Matt is known for gossiping and making stuff up about people. Matt has basically said to us about you that you are here to take over our jobs and that we will not have a job in the future because you were employed to replace us.”
After some discussion, they agreed to communicate with each other if Mr Schokman said things they thought might not be true. Mr Stavrou said, in words to the effect:
“Let’s not let Matt know that we have all made amends. I can tell you now, he will call both of us, he will find out what happened, and will make out he is on both of our sides.”
They again shook hands and left.
It was not long before Mr Schokman called Mr Celnikier. He asked how the meeting had gone; whether he got everything off his chest; and whether he had “ripped in” to Mr Dubois and Mr Stavrou. Mr Celnikier said he had a client call and would call him back. Instead, he called Mr Dubois, and said, in words to the effect:
“You are right. Matt just called me. I didn’t want to speak to him though.”
Mr Dubois replied, in words to the effect:
“He hasn’t called me yet, but I will let you know when I hear from him.”
Later that day, Mr Dubois called Mr Celnikier to say that Mr Schokman had just called him. He reported Mr Schokman asking for information about what they had discussed and telling Mr Dubois he had “his back”. Mr Dubois also described Mr Schokman saying, in words to the effect:
“He has spoken to Scott (Irwin) and said that you haven’t quoted properly on jobs and that you have over-quoted on jobs.”
Mr Celnikier could not believe what he was hearing. He was annoyed that Mr Schokman would be talking him down to Mr Irwin, an owner of the business.
On 21 March 2022, Mr Celnikier rang Mr Broughton and told him he was getting tired of Mr Schokman’s gossiping. Mr Broughton said he would talk to Mr Schokman, and Mr Celnikier asked him not to mention any names. Mr Celnikier also sent Mr Broughton a formal complaint about Mr Schokman, describing his last week as “hell for me with a toxic spreader pretending to be a work mate of mine, spreading conversations that never happen and pretending to be the mediator”. He described the events of 17 and 18 March 2022 and then wrote:
“I am deeply disappointed in myself for not coming forward with Matt.s [sic] toxic behaviour as I feel I was deeply manipulated into believing he was there just looking out for me.
I am extremely pissed off having a day off last week due to stress, for no reason at the end of the day I literally stressed for no reason!
Feel free to contact me if you want me to give you more examples of Matt.s [sic] behaviours I reckon I got about 10 I can count.”
Mr Broughton was disappointed to read the email. He responded to Mr Celnikier with positive reinforcement and guidance and said he would take care of “the other bullshit” now that he had a “complete understanding of what has transpired” and would “put all the preventative measures in place”.
Mr Broughton then rang Mr Schokman and said to him, in words to the effect:
“Matt, gossiping is toxic to any workplace. You can’t gossip about people. You have to stop gossiping.”
It was about this time that Mr Broughton spoke to Mr Schokman about taking on more of a team leader role, following their discussion on 11 or 15 March 2022 about his request for less manual work. Likely, it was also an attempt to help Mr Schokman feel secure in his job and stop seeing Mr Celnikier as a threat. They discussed him taking on stock ordering and checking vehicle cleanliness. This was agreed and Mr Schokman assumed the role of Plumber/Team Leader.
Mr Schokman’s evidence suggests that the offer of the Team Leader role was made in or about June 2022, after he started to think about resigning when one of his jobs became a joke among his colleagues, for which he blamed Mr Celnikier. Mr Schokman submits that he called Mr Broughton and told him he would be handing in his two weeks’ notice, and that Mr Broughton (and Mr McElroy) offered to make him Team Leader of Operations as there was a skills shortage and they did not want to lose him and his experience. He says they also asked him to help with weeding out the gossip and backstabbing that was going on in the business, and that when Mr Schokman asked how, he was told to deflect it and give it no attention.
I accept the last of these contentions, but I do not accept Mr Schokman’s evidence about the timing of this conversation or its link to difficulties he was having with Mr Celnikier. I prefer Mr Broughton’s evidence that the Team Leader role was put in place in or about March 2022 in an effort to retain Mr Schokman rather than see him go to a competitor at a busy time for the business, still navigating the COVID-19 pandemic. This was at least two months before the job at the end of May 2022 to which Mr Schokman refers which involved taps that had been installed the wrong way round.
In April 2022, Mr Celnikier was approached by another plumber, Josh Evans-Cairns, after working on a job for an elderly customer who needed bathroom handrails installed. Mr Evans-Cairns said to him, in words to the effect:
“Matt is saying that you pressured the client to do that job. He is also saying you are not allowed to go back to the client, because the client fears you.
Matt has also told me that I shouldn’t trust you. He told me that Scott is on the same page, and you probably won’t have your job for too much longer.”
Mr Celnikier rang Mr Broughton and told him that Mr Schokman was still talking about him, including by going straight to Mr Irwin.
On 27 May 2022, there was a team meeting of employees. Mr Broughton, Mr Celnikier and Mr Schokman all attended. During the meeting, Mr Broughton said to everyone, in words to the effect:
“There seems to be a bad culture creeping in here which we do not want. I have been told that there has been backstabbing and gossiping. From this day forward, we are shutting down any type of gossiping or talking about people. If they are not in front of you, don’t talk behind their back. If you have a genuine issue, raise it with me. Otherwise, don’t talk about other people.”
At the end of the meeting on 27 May 2022, Mr Broughton asked Mr Schokman to stay back. He then said to him, in words to the effect:
“Matt, gossiping is bad for the company, especially for someone who wants to be a leader. Why do you think people don’t bring gossip to me? Because they know I am not interested in it. There is no benefit to it. Let’s get back to work.”
Mr Schokman replied, in words to the effect:
“Ok, no problems.”
On or about 30 May 2022, Mr Schokman was given a job in Balmain that required replacing shower taps. He attended site, replaced the hot and cold water tapware and tested them. He then realised they had (previously) been installed backwards. He rang Mr Celnikier who had quoted the job (also without knowing about the non-compliant installation) and asked him what to do about it. Mr Schokman says Mr Celnikier told him to “do it that way” - the clear inference being that Mr Celnikier told Mr Schokman to put the taps on the wrong way round. Mr Celnikier denies this and I accept his denial. Mr Schokman’s version does not make sense unless it is a reference to him doing the work described in the job order / quote, which is what Mr Schokman did. But the advice from Mr Celnikier is said to have been given after that was done, because it was only then that the installation issue was discovered.
What could Mr Celnikier have been telling Mr Schokman to “do …that way” about fixing the problem? There was only one way – which was to reinstall the taps with ‘hot’ on the left and ‘cold’ on the right. More likely, because of the time of day and what was involved to fix the issue, Mr Celnikier told Mr Schokman to leave it with him and said he would speak to the customer. Mr Celnikier did speak to the customer, who complained about Mr Schokman’s workmanship. Mr Celnikier “smoothed things out” and then contacted Mr Broughton to report the issue.
Mr Broughton spoke to Mr Schokman and asked him to go back to the job to fix the problem. When Mr Schokman told him that Mr Celnikier had told him to do it that way, he also said he was going to “knock his lights out”. Mr Broughton replied, in words to the effect:
“Mate, don’t speak that way. That is a silly thing to say. Let’s just get the job fixed.”
On 1 June 2022, Mr Schokman was speaking to Mr Nathan Waltho, an apprentice. Mr Waltho said he had overheard on a job that everyone was laughing about his job at Balmain, saying he did not know how to install hot water. This made Mr Schokman angry and he called Mr Celnikier. He said, in words to the effect:
“You think I am a bad plumber! You have been speaking badly about me regarding that Balmain job!”
Mr Celnikier asked him where he had heard that, and Mr Schokman replied that Mr Waltho had told him. Mr Celnikier then said:
“That’s impossible. I don’t speak to Nathan [Waltho] as he has not been on my jobs. I haven’t spoken to anyone apart from dispatch to book the job in. I am sick of the shit. I am particularly sick of your shit Matt. I have to go back to work. If you have an issue, meet up and talk to me. I don’t want to hear you mention my name.”
Both Mr Schokman and Mr Celnikier called Mr Broughton to report the conversation. Mr Celnikier complained that Mr Schokman was “talking shit again”, and said he was not saying anything about Mr Schokman. Mr Broughton told him to deal with it as best he could.
Later on 1 June 2022, Mr Celnikier was approached by Mr Waltho, who said to him, in words to the effect:
“You are talking shit Joel. Matt said you are rubbishing us and have dobbed us in and you are saying we are not competent.
Mr Celnikier told him to go away and not speak to him.
On 3 June 2022, there was a toolbox talk. Among other things, Mr Broughton spoke to the team about gossiping and backstabbing and said “Enough of the bullshit! Do I need to bring tampax to these meetings?” Mr Broughton has since acknowledged the inappropriate nature of this comment.
Despite the warning on 3 June 2022, the behaviour continued. Mr Celnikier, Mr Stavrou and Mr Dubois each complained to Mr Broughton about how Mr Schokman was talking them down to younger apprentices, including Mr Waltho.
On 21 June 2022, Mr Broughton went to speak with Mr Schokman. He said to him, in words to the effect:
“You tell me that you want to be in a more senior position in the company. If that is the case, you have to shut down the gossiping.”
Mr Schokman responded, in words to the effect:
“I understand and I will put a stop to gossiping.”
On 24 June 2022, there was a team meeting for staff including Mr Schokman. Gossiping came up again, and Mr Broughton said, in words to the effect:
“I am still being told that gossiping has been going on amongst the team. Gossiping is chatting about teammates short-comings or personalities opposed to actual work-related successes, problems or strategies. The gossiping has to stop. It is not good for people’s health, and it is not good for the business. There is to be no more gossiping, if you are presented with gossip, please shut it down and return the conversation to work matters in a professional manner.”
After the meeting, Mr Broughton asked Mr Schokman, Mr Dubois and Mr Stavrou to stay back. He said to them, in words to the effect:
“Look, I know you guys have had your differences in the past. Let’s put a stop to the negativity and focus on what your job is. If younger guys focus on gossiping, shut it down.
Let’s just shake hands and move on.”
Mr McElroy has a different recollection of what happened after the meeting on 24 June 2022. He says it was he and Mr Schokman who were asked to stay behind to speak with Mr Broughton, and that Mr Broughton said, in words to the effect:
“Matt, I have spoke to you before about gossiping. You have been asked to stop. People are telling me you are posting work on a WhatsApp group chat and criticising it.”
After Mr Schokman replied, in words to the effect: “I have a WhatsApp group for work, however it’s not me doing it, it’s others”, Mr McElroy says Mr Broughton told him to “stop the gossiping”.
The likely cause of the discrepancy is that each is talking about a different post-team meeting. The one material significance for present purposes is that if Mr McElroy’s evidence can be accepted, the WhatsApp group used by Mr Schokman was made known to Mr Broughton in June 2022, rather than August 2022, when Mr Broughton’s evidence suggests this was brought to his attention for the first time by Mr Celnikier (see further below). On balance, I prefer Mr Broughton’s recollection as to the timing of the conversation, because of his related evidence about his discussion with Mr Schokman on 11 August 2022.
In or around mid-July 2022, Ms Sally Noyen, who works in the office of Chiswick Plumbing, complained to Mr Broughton that Mr Schokman had been rude to her on the phone. She said he was talking about her behind her back and saying she was a “dope” for sending unsuitable technicians to a job on a busy day when she had no other options. She felt undermined by Mr Schokman and thought this was causing others not to trust her scheduling ability.
Mr Broughton rang Mr Schokman. He said, in words to the effect:
“Sally tells me you have mentioned to other staff she is not a good dispatcher and often makes the wrong decisions. Can you cut out talking to the other guys about her dispatching? Sally did not come from another plumbing company. She came from retail. She makes dispatching decisions based on my training. If you don’t agree with her dispatching decisions, speak to me. In the meantime, accept the jobs she gives you. If there is a problem, ring me.”
Mr Schokman responded by saying “Okay.”
In or around August 2022, Mr Celnikier complained to Mr Broughton that Mr Schokman was using a WhatsApp group chat to share photos of ‘poor workmanship’ of his colleagues to embarrass them. Mr Broughton advised that he had not asked Mr Schokman to set up a group chat.
On Wednesday 10 August 2022, Mr Schokman and Mr Waltho were working at a job in Campsie. Mr Celnikier attended the job to quote for a replacement sewer system. The customer approved the job to go ahead, and work started straight away. Mr Celnikier then went to another job in Engadine to quote, and Mr Schokman met him there. Mr Schokman left to go to the dentist as he had a toothache. Mr Celnikier later received a call from the Campsie job, from Mr Dubois’ brother, Zunaid Dubois. He said to Mr Celnikier, in words to the effect:
“They want us to stop work so that they can get some other quotes. They also want you to come back tomorrow to discuss the quote further.
Mr Celnikier told him to stop work and tell the customer he would be there the next morning.
On 11 August 2022, Mr Schokman was away from work due to his toothache. Mr Broughton noticed his absence from his name being blacked out on the dispatch board alongside the word “sick”. In the meantime, Mr Celnikier went to the Campsie job. Mr Waltho was there, together with Mr Zunaid Dubois, and Mr Broughton. The customer’s neighbour was screaming abuse at two of the workers, who had returned to their truck waiting for management to arrive.
When Mr Celnikier arrived, it was agreed that the job would not continue, and that Chiswick Plumbing would make the site safe. That was done, and they left the site. Later that day, Mr Zaid Dubois called Mr Celnikier and told him to listen to a conversation he was hearing between Mr Waltho and Mr Schokman. He put his phone on speaker, and Mr Celnikier heard the following exchange:
Mr Schokman: “Joel is ripping people off! This will be on A Current Affair!”
Mr Waltho: “(Laughing) Yeah, true.”
Mr Celnikier was annoyed and frustrated. He felt that Mr Schokman was working against him, saying one thing to his face and another behind his back. He also felt that Mr Waltho was disrespecting him. He decided enough was enough and called Mr Schokman directly. The following conversation occurred:
Mr Celnikier: “I am hearing you are speaking to people about my job when you shouldn’t be. If there are any problems, you need to come to me. I don’t get why we keep having these types of conversations.”
Mr Schokman: “I don’t know what you are on about. I haven’t spoken to anyone today!”
Mr Celnikier: “Mate, I know you have, because you have spoken to Nathan today. Zaid overheard you speaking to Nathan. Have you spoken to any of the boys today?”
Mr Schokman: “Yes, I’ve spoken to Nathan (Waltho), Matt (Montibekler), Josh (Evans-Cairns) and Stephen (Xenakis). I told Josh about the Campsie job yesterday. I told him the job had gone south, that a neighbour was involved, and that the elderly client seemed to have been over charged $64,000.”
Mr Celnikier: “Why did you speak to anyone about my job? You are spreading rumours. Just to let you know you are not fucking welcome here and nobody wants you so don’t come to the dinner tomorrow night as no one wants you there and I will be fucking coming for you.”
Mr Celnikier denies swearing at Mr Schokman or saying that he was “fucking coming for” him, but I accept Mr Schokman’s evidence on this matter. It is consistent with the emotional state of Mr Celnikier at the time, and Mr Broughton’s evidence (see below) about what was reported to him and acknowledged by Mr Celnikier with an apology to Mr Broughton.
Mr Celnikier then hung up and called Mr Broughton. He said, in words to the effect:
“I just spoke to Matt. He has been gossiping about my work again. He is talking to them about the big job I sold implying I have ripped off a customer. I am out there doing my best for the company and Matt is telling people I am overselling to get commission. The guy is calling me unethical. Saying I am ripping off old people. I know I spoke to you about it. How dare he go to younger guys!”
Mr Broughton replied, in words to the effect:
“Mate, I will give him a call and find out what is going on. I will speak to Scott and run the numbers. Don’t let it get to you - you have done nothing wrong. I even helped you with the pricing. We offered smaller solutions, but the customer wanted to get the entire pipe fixed. Not much you can do when they choose the larger options so they don’t have to worry about a sewer blockage again. The pipes were at least 50 years old.”
Mr Broughton then rang Mr Schokman, and they had the following conversation, in words to the effect:
Mr Broughton: “Hey mate, I just got a complaint from Joel. He says you are talking to other guys about his job. Why are you talking to the guys when you are not working?
Mr Schokman: “I talk to them every morning on a WhatsApp group call.”
Mr Broughton: “What is that about?”
Mr Schokman: “I just talk to them every morning to make sure they have what they need.”
Mr Broughton: “No one in this company is on commission. It is horrible for culture. If you pay people commission or incentive pay, you are open to guys cheating the system. They do the wrong thing by the customer. Joel is upset. He has worked hard to get this sale. He followed all the procedures. It is not right for you to talk to other guys about it.”
Mr Schokman: “Joel said he is going to come after me.”
Mr Broughton: “Ok. I will handle that. That is not acceptable. You have threatened him before, and I have handled that. I will handle this the same way.”
Mr Broughton then telephoned Mr Celnikier, and said, in words to the effect:
“Joel, I get you are upset, but you can’t say you are going after someone. You can’t speak that way to people.”
Mr Celnikier replied, in words to the effect:
“I am sorry. You know I get emotional about this stuff. It is hard when people accuse you of ripping off old ladies. It makes me feel like a piece of shit. It is not what I was trying to do.”
Later on 11 August 2022, Mr Broughton called Mr McElroy and told him they had a problem with Mr Schokman. He said that Mr Celnikier was upset, and that Ms Noyen and Mr Zaid Dubois were threatening to leave because of his behaviour. Mr McElroy spoke to Ms Noyen and asked what Mr Schokman had done to upset her. In response, she said, in words to the effect:
“I am sick to death of the backstabbing and innuendos that I don’t know what I am doing. He is making my life misery. If I have to continue to put up with him, I will leave.”
Mr Broughton and Mr McElroy began to think about what to do with Mr Schokman. They decided to put some space between him and Mr Celnikier, and to offer training and development to Mr Schokman. Mr Broughton spoke to Killara Plumbing’s General Manager, Mr Jason Bekley, and asked if he could take Mr Schokman under his wing for a couple of months. Mr Bekley agreed.
On Friday 12 August 2022, Mr Schokman returned to work. At about lunch time, he received a phone call asking him to come into the office at Terrey Hills. When he arrived, he was asked to wait in the boardroom. After a while, Mr Broughton and Mr McElroy walked in. As one would expect, the recollection of each participant about precisely who said what to whom in this meeting varies. But it is common ground that the purpose of the meeting was explained to Mr Schokman as the need to stop gossiping in the business and to put some space between him and Mr Celnikier. I find that they also discussed:
1.The view of the business that Mr Schokman was involved in the gossiping, had not shut it down, and had lost the support of the team,
2.A proposal for Mr Schokman to work for Killara Plumbing with Mr Jason Bekley and Mr Bruce Walker while receiving training and development.
3.Mr Schokman’s view that he was being punished because he reported Mr Celnikier for threatening him and telling him not to come to the dinner that night,
4.Mr Schokman’s resistance to working anywhere but Chiswick Plumbing,
5.That going to Killara Plumbing would mean he would still be employed by Chiswick Plumbing, but would use a Killara Plumbing truck and its equipment,
6.Mr Schokman’s request for a support person, and
7.What would happen if Mr Schokman did not agree to go to Killara Plumbing, including that he would not be following a management instruction and that he could resign.
Towards the end of the meeting, Mr Schokman asked for time to think about it over the weekend. Mr Broughton asked what he was thinking, and Mr Schokman replied, in words to the effect:
“I am 80% there. I just want time over the weekend.”
Mr Irwin then entered the room. He encouraged Mr Schokman to go to Killara Plumbing for his own development and to stop talking ill of people. He explained, in words to the effect:
“Joel would have got upset with you because he checked the pricing on that job with Nathan. He gave the customer cheaper solutions. She chose the most expensive solution, and he also contacted a relative to make sure they were happy with her making that type of decision. It is not right to call him unethical or immoral.”
It was agreed that Mr Schokman would speak to Mr McElroy the next day. Mr McElroy walked him to his truck, and then they exchanged words to the effect:
Mr McElroy: “Matt, about tonight…”
Mr Schokman: “Don’t worry, I’m not coming.”
Mr Schokman’s recollection is different. He says he was told not to attend the dinner he had helped to organise. But he also says he was concerned about the effects it would have if Mr Celnikier carried out his threat of “coming for him”, and that he did not want any trouble that night. Mr Broughton says he heard the exchange as recalled by Mr McElroy. On balance, I prefer the evidence of Mr Broughton and Mr McElroy on the subject. I consider it likely that their actions, rather than their words, gave Mr Schokman the impression that attending the dinner might not be a good idea. They may not have expressly told Mr Schokman “not” to attend, but it is clear that they were worried about what might happen if he did, as was he.
On Saturday 13 August 2022, Mr Schokman rang Mr McElroy. They had a short conversation, in which Mr Schokman said he wanted to work with the guys at Chiswick, but not as a leader. Mr McElroy said he wasn’t going to make any promises, told him to come in on Monday and they could discuss it further, and said it would work itself out. Mr Schokman raised the issue of a support person and asked if he was going to be sacked. Mr McElroy said it was not a matter of sacking, and to come in on Monday.
On Monday 15 August 2022, Mr Schokman attended the Terrey Hills office to meet again with Mr McElroy and Mr Broughton. Mr Schokman said he wanted a support person and Mr Broughton and Mr McElroy asked him why he wanted to reach out, who his support person was, and said that Mr Schokman’s job was not at risk. They agreed to go ahead with the meeting.
Mr Broughton asked Mr Schokman whether he would go to Killara Plumbing. Mr Schokman said he felt like he was being punished because Mr Celnikier had threatened him, and that he didn’t want to go to Killara. He did not think it was fair that he was being forced to relocate for training. He was asked to think about it and to work from Killara Plumbing the next day. He said he needed to speak to his support person.
Mr Schokman left the meeting briefly and called his support person but could not get through. Instead, he spoke to his father who told him not to make a decision and to ask for extra time. Mr Schokman returned to the meeting and after further discussion, including his suggestion that he remain at Chiswick Plumbing and work as a plumber but not Team Leader, they came to the understanding that Mr Schokman would be picked up at 6.00am the next morning to go to Killara. Mr Schokman was asked to return Chiswick Plumbing property, including an iPad and the keys to his truck, on the basis that he would get a Killara Plumbing truck the next day. Mr McElroy and Mr Broughton drove him home and helped him to remove his things from the truck. As they were finishing up, Mr Schokman said “See you tomorrow”.
At approximately 5.15pm that evening, Mr Broughton sent him a message saying:
“You right for me to pick you up at 6am tomorrow mate?”
In reply, Mr Schokman sent him a photo of a medical certificate for 15 to 17 August 2022, with the message:
“Sorry won’t be available until Thursday”.
On 16 August 2022, Mr Broughton asked Mr McElroy if he had heard from Mr Schokman. The answer was no. Mr McElroy sent Mr Schokman a message to ask where he was and received no reply. That evening, Mr Schokman applied to the Commission for orders to stop bullying at work. He has separately since made a worker’s compensation claim.
Has Mr Schokman been bullied at work?
Did Mr Celnikier spread rumours within the business about Mr Schokman’s ability to perform plumbing work?
This allegation relates to the Balmain job and the wrongly installed taps. I am satisfied on the balance of probabilities that Mr Schokman’s work in relation to the taps was the subject of discussion among the other plumbers, and likely not in favourable terms. From a plumber’s perspective, it was an obvious compliance issue that needed to be fixed, whether the work involved in reinstalling the pipework was part of the quote or not. The taps were not installed to Australian Standards.
I am not satisfied on the balance of probabilities that the source of this discussion was Mr Celnikier. He denies it, and his response at the time to both Mr Schokman and Mr Waltho when confronted are consistent with that denial. It is just as likely that someone other than Mr Celnikier shared the information with others. On the evidence before me, Mr Celnikier spoke both to Mr Broughton and to “dispatch” about the issue and the need for it to be fixed.
This allegation is not established.
The angry phone call between Mr Schokman and Mr Celnikier on 11 August 2022
Mr Celnikier is alleged to have started yelling, swearing and aggressively shouting at Mr Schokman, including by saying “Mind your own fucking business” and “Just to let you know you are not fucking welcome here and nobody wants you so don’t come to the dinner tonight as nobody wants you there and I will be fucking coming for you”,
I am not satisfied that Mr Celnikier yelled at Mr Schokman during this encounter, but I am otherwise satisfied that the factual elements of this allegation are established.
Was Mr Celnikier’s conduct unreasonable in the circumstances? Mr Schokman had been working to undermine Mr Celnikier almost from the time he joined Chiswick Plumbing in December 2021. This included telling others that Mr Celnikier was there to take their jobs, deliberately seeking to create tension between him and other plumbers, and maligning his integrity and competency as a plumber, including to one of the owners of the business and at least one of its apprentices. It is unsurprising that by August 2022, Mr Celnikier had had enough.
In the circumstances, I am not satisfied that it was unreasonable for him to respond angrily by telling him to “mind his own fucking business” when he heard Mr Schokman say that he was ripping people off. It was provocative of Mr Schokman to say to Mr Celnikier, as if in passing, that the elderly client had been overcharged, knowing that Mr Celnikier had prepared and negotiated the price.
I am satisfied that Mr Celnikier acted unreasonably when he let his anger get the better of him and told Mr Schokman that he was not welcome at Chiswick Plumbing, that he should not come to the dinner that night, and that if he did he would be “fucking coming for” Mr Schokman. This was a threat, potentially of violence. It was inappropriate workplace behaviour.
However, I am not satisfied that in acting this way towards Mr Schokman, Mr Celnikier bullied Mr Schokman at work. His actions on 11 August 2022 were not part of a repeated pattern of unreasonable behaviour. They involved, instead, a single outburst in response to the repeated unreasonable behaviour of Mr Schokman towards Mr Celnikier.
Proposed relocation to Killara Plumbing
It is alleged that Mr Broughton and Mr McElroy bullied Mr Schokman between 12 and 15 August 2022, when they told him he was no longer fit for Chiswick Plumbing, had lost the support of his colleagues, was struggling with his management duties, and was asked to relocate to Killara Plumbing for three months.
I am satisfied that Mr Schokman was told by Mr Broughton and Mr McElroy that he had lost the support of his colleagues and that he was struggling with his management duties. I am also satisfied that he was asked to work at Killara Plumbing for three months. I find that this was put to Mr Schokman as a “management instruction” with which he was expected to comply, although the change was ultimately not made because Mr Schokman did not consent.
I do not accept Mr Schokman’s assertion to the effect that this was the first time he was put on notice of any concerns about his performance. Mr Schokman had experienced direct conflict with Mr Celnikier and had been spoken to directly by Mr Broughton on several occasions about gossiping at work and the need to “shut it down”. He had participated in at least three team meetings where the matter was expressly discussed and discouraged.
In the circumstances, it was necessary to take some action to address the repeated unreasonable behaviour of Mr Schokman. Mr Broughton’s preference was to avoid a disciplinary process and to instead create some space between Mr Schokman and his colleagues, while seeking to develop Mr Schokman’s leadership skills by having him work closely with senior and experienced managers.
Killara Plumbing is an associated entity of Chiswick Plumbing. It was made clear to Mr Schokman that despite working with Killara Plumbing’s managers, he would remain employed by Chiswick Plumbing. There is no evidentiary basis for the proposition that despite the move being only temporary, it would have operated to prevent his return to Chiswick Plumbing.
Mr Schokman’s contract of employment provides for Mr Schokman to “start and finish on the designated site or at the office which ever is instructed by manangement [sic]”. It states that he may “be required to travel as reasonably necessary for the performance of” his duties. Much of what was anticipated in the three‑month training period was riding with the managers of Killara Plumbing, to observe and learn from their way of working, and to bring those skills with him back to his primary place of work.
In the circumstances, the request to Mr Schokman to undertake three months training at Killara Plumbing was reasonable management action. It was not bullying at work.
Other relevant matters
Much was made in submissions of the issue of whether Mr Schokman was denied a support person in his discussions with Chiswick Plumbing, in particular on 15 August 2022. I do not accept that there was a relevant denial. Mr Schokman was on notice of the meeting two days before it occurred. He did not ask for the meeting to be rearranged, or for his support person to attend, or bring his support person with him when he attended the meeting as earlier agreed. Even after raising the issue at the start of the meeting, Mr Schokman agreed to proceed. In the circumstances, nothing turns on the matter for the purposes of this decision.
Conclusion
I am not satisfied that Mr Schokman has been bullied at work by the individuals named in his application. It is accordingly not necessary to consider whether there is a risk that Mr Schokman will continue to be bullied at work by those individuals.
The application is dismissed.
Application for confidentiality orders
Chiswick Plumbing has sought an order restricting the publication of the names and addresses of the company and witnesses who gave evidence in the proceeding, based on the size of the business and certain alleged conduct of Mr Schokman.
The interests of open justice in this case outweigh the arguments in support of suppression of the name of the business or its witnesses. I will, however, order that the addresses of the individual witnesses not be disclosed other than for the purposes of this proceeding. This is a proportionate measure that can be taken to protect the personal information of those involved without undermining the principles of open justice.
COMMISSIONER
Appearances:
C Kuveju on behalf of the applicant.
M Baroni of Counsel for Chiswick Plumbing and the individual respondents.
Hearing details:
2023.
Sydney:
May 18.
Final written submissions:
June 15.
[1] Fair Work Act 2009 (Cth), s.789FD.
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