Mayger v Community Accommodation and Respite Inc T/A Cara
[2016] FCCA 2151
•9 August 2016 (ex tempore)
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MAYGER v COMMUNITY ACCOMMODATION AND RESPITE INC T/A CARA | [2016] FCCA 2151 |
| Catchwords: INDUSTRIAL LAW – Practice and procedure – pleadings – further and better particulars – pleadings – strike out application. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), ss.43 & 44 Federal Circuit Court of Australia Rules 2001 (Cth), rr.1.05 & 11.08 Fair Work Act 2009, ss.34 & 596 Migration Act 1958 (Cth) |
| Cases cited: Pugliese v Paull [2011] FMCA 95 Collins v Department of Finance and Deregulation [2011] FMCA 240 |
| Applicant: | MERILYN ANN MAYGER |
| Respondent: | COMMUNITY ACCOMMODATION AND RESPITE INC T/A CARA |
| File Number: | ADG 475 of 2015 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 29 July 2016 |
| Date of Last Submission: | 29 July 2016 |
| Delivered at: | Adelaide |
| Delivered on: | 9 August 2016 (ex tempore) |
| Reasons settled on: | 22 August 2016 |
REPRESENTATION
| The Applicant: | In person with the assistance of Mr M Mayger |
| Solicitors for the Respondent: | Mr S McGrath for Cowell Clarke Commercial Lawyers |
UPON NOTING THAT:
a)On the next occasion, the Court will hear submissions from the parties as to whether, by extension of having allowed Mr Mayger to appear as a McKenzie friend, he should be allowed to make submissions in open Court on behalf of the applicant; and
b)Counsel for the respondent has indicated that copies of various authorities referred to in the judgment of Nepal v Minister for Immigration & Border Protection [2015] FCA 366, if they are able to access them, will be provided to the applicant to assist her to prepare for the argument
THE COURT ORDERS THAT:
The Application by the applicant, pursuant to s.44 of the Federal Circuit Court Act 1999 (Cth), for Mr Mark Mayger to appear as a representative on behalf of the applicant, Ms Merilyn Ann Mayger, is dismissed.
Mr Mark Mayger is permitted to assist Ms Merilyn Ann Mayger as a McKenzie Friend in this application.
The applicant do provide within 28 days Amended Further and Better Particulars as to the complaints on which it relies in contravention of s.34 of the Fair Work Act2009 (Cth) as follows:
(a)Particulars of each and every complaint which the applicant alleges was made to the respondent, and with respect to each compliant:
(i)The date on which it was made;
(ii)Whether the complaint was made orally or in writing, and if in writing, whether by letter, fax, text message or email;
(iii)To whom the complaint was made; and
(iv)If the complaint was made orally, what was said.
Paragraphs 5, 6 and 9 of the Amended Claim are struck out.
The respondent do file and serve any Amended Response within 21 days after receipt of the Amended Further and Better Particulars.
Any application under r.11.08 of the Federal Circuit Court Rules2001 (Cth) for the appointment of a litigation guardian is to be made 7 days prior to the adjourned date.
Any further affidavit material to be relied upon by the parties for the purpose of the argument, are to be filed and served 7 days prior to the adjourned date.
Further consideration of the matter is adjourned to 2.15pm on 4 October 2016 before Judge Heffernan for interim argument with half an hour set aside.
The parties have liberty to apply.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 475 of 2015
| MERILYN ANN MAYGER |
Applicant
And
| COMMUNITY ACCOMMODATION AND RESPITE INC T/A CARA |
Respondent
REASONS FOR JUDGMENT
(Reasons settled from transcript)
There are two applications before me in this matter. The first is an Application in a Case filed 28 June 2016 by the applicant, Ms Mayger, that the Court make an order permitting her husband, Mr Mark Mayger, to represent her. This application is supported by the Affidavit of the applicant dated 28 June 2016.
The second is an Application in a Case filed 28 June 2016 by the respondent that the applicant be ordered to provide particulars at paragraph 4 of the Amended Claim as to the complaint, or complaints, in respect of which it is alleged the respondent was motivated to take adverse action against the applicant, and further, seeking that paragraphs 5 to 9 of the applicant’s claim be struck out. That application is supported by the Affidavit of Mr S McGrath dated 28 June 2016.
I will deal with the application for representation first.
Ms Mayger’s affidavit asserts that she wishes her husband to represent her. She states that she has the utmost confidence in him and that the events in the workplace, the subject of her application, have been emotionally traumatic for her, and as a result she does not feel confident representing herself.
Mr Mayger has been permitted to appear on behalf of his wife to date in these proceedings, including submissions on this application, without objection by the respondent, and quite properly so. In submissions of behalf of his wife Mr Mayger told the Court that his wife is very nervous with respect to these proceedings, and the effect of her termination by CARA, and the events leading up to it, has caused her to consider suicide.
She has been highly emotional and he submits has difficulty in recounting the relevant events. He submits the Court has an inherent jurisdiction to grant a right of audience. He makes the application pursuant to s.44 of the Federal Circuit Court of Australia Act 1999 (Cth) (‘the FCC Act’). His submission is that his presence as counsel will assist and not interfere with the proper process of the administration of justice.
In his submission, there are complexities to the case and he is in a better position to advance arguments than Ms Mayger as the applicant in person. Whilst he conceded that progress would be slow because he is not a lawyer, he submitted, perhaps logically, that this would inevitably be the case because Ms Mayger is also not legally trained.
For the respondent, Mr McGrath submitted that it is, in the present circumstances, outside the power of the Court to allow the application and, in any event, it would be inappropriate in all of the circumstances even taking into account the matters referred in the brief affidavit of the applicant. The applicant’s husband does not satisfy the circumstances identified in s.44(a) of the FCC Act. Mr McGrath submits that s.44(b) is not engaged because the regulations do not deal with representation, and the reference to another law of the Commonwealth in s.44(c) is not engaged because the Fair Work Act 2009 (Cth) (‘FW Act’) is silent as a representation in the Federal Circuit Court and the Federal Court.
Mr McGrath referred me to a number of authorities to support his submissions, some of which I will refer to later in these reasons. Rule 11.08 of the Federal Circuit Court of Australia Rules 2001 (Cth) (‘the FCC Rules’) deals with the topic of litigation guardians, but Mr McGrath submits that the application has not been made under that rule. But he submits that in any event the rule is clearly designed to cater for persons who labour under a legal incapacity.
The evidence put by the applicant does not, he says, establish that such incapacity exists in this case, and so he submits that even if I were to deal with the matter on that basis, the application must fail. The terms of s.44 of the FCC Act were not, Mr McGrath submitted, designed to accommodate a person’s inconvenience or reluctance to represent themselves. The fact that Ms Mayger is lacking in confidence is not a sufficient consideration, so his submission went.
The right to representation in this Court is dealt with by s.44 of the FCC Act. Section 44 states as follows. In short, a party is not entitled to be represented by another person unless they are entitled to practise; are a barrister or solicitor; or under the regulations the other person is taken to be an authorised representative; or, under another law of the Commonwealth the other person is authorised to represent the party.
There is no argument that Mr Mayger is not entitled to practise as a barrister or a solicitor in a Federal Court. Secondly, the regulations to the FCC Act are silent on the question of representation. This leaves subparagraph (c), whether another law of the Commonwealth authorises a person to represent the party.
Section 340 of the FW Act makes no reference to representation in this Court. Conversely, the FW Act does specifically deal with the question of representation before the Fair Work Commission and I refer to s.596 of the FW Act in that regard.
The parties have not been able to identify, and I have not been able to identify, any provision of any other Act which might come within the ambit of s.44(c). I will refer to the decisions of Judge Lucev cited by the respondent in its submissions.
The decision of Pugliese v Paull[1] is a decision of Judge Lucev of this Court which has dealt with the question of whether s.44(c) of the Act is engaged. In this case, whether the FW Act permits another person, in this case, Mr Mayger, to represent the applicant is the issue.
[1] [2011] FMCA 95.
His Honour Judge Lucev considered whether, and rejected, that subss.596(1) and (4) of the FW Act authorises a person to appear for a party. His Honour concluded that that section deals only with the right of the appearance before the Fair Work Commission.
Because the FW Act is silent on the topic of representation in this Court, his Honour concluded that the matter was entirely to be determined by reference to s.44 of the FCC Act. His Honour addressed the question of whether this Court has inherent jurisdiction to allow a person a right to an audience to appear on behalf of another. His Honour concluded that consistent with authority from the Federal Court, this Court does not have an inherent jurisdiction to allow an unqualified person to appear, and that the implied jurisdictional powers of the Court necessary to the exercise of expressly conferred powers did not extend to allowing the appearance of a non-lawyer.
The decision of Collins v Department of Finance and Deregulation[2] was another decision of Judge Lucev in which he followed his earlier decision in Pugliese.
[2] [2011] FMCA 240.
His Honour made a comment about the question of a McKenzie Friend and he impliedly found that it was within the jurisdiction for the Court to allow a McKenzie Friend. He noted that the allowance for a McKenzie Friend does not allow a person to appear to make representations in open court.
I will refer now, briefly, to the decision of Edelman J in Nepal v The Minister for Immigration and Border Protection[3], his Honour dealt with s.44 of the FCC Act. In that matter, in considering whether or not a non-lawyer might represent a party in a migration matter, his Honour said at paragraph 35:
“In summary, therefore, the only basis upon which Mr Remely could have been permitted to address the court to assist Mr Nepal before Judge Coates was by the exercise of the Court’s powers to regulate its own proceedings to allow Mr Remely to make submissions by extension of the concept of a McKenzie friend.
I address the limitations of that role in an earlier decision in this matter, Nepal v The Minister for Immigration and Border Protection [2015] FCA 366 at paragraphs 13 to 16.”
[3] [2015] FCA 499.
His Honour went on at paragraph 36:
“For these reasons Mr Remely had no right to represent Mr Nepal before Judge Coates but in any event there could not have been any error in the decision of Judge Coates which is the subject of this appeal because Mr Remely was not denied any right to assist Mr Nepal before Judge Coates.”
And I will explain for the benefit of the parties, in that matter, neither the applicant nor Mr Remely appeared at the hearing of the appeal. I will also note that in that decision his Honour found that the Migration Act1958 (Cth) did not give Mr Remely the power to represent Mr Nepal in court, and so it did not come within the terms of s.44(c) of the FCC Act.
Clearly, it is, on the basis of the decision of Edelman J, open for this Court to permit a person to have a McKenzie Friend. His Honour dealt with the difficulties and limitations of that role in the earlier interlocutory decision he gave in the same matter.[4] And I will refer briefly to his comments there.
[4] Nepal v Minister for Immigration and Border Protection [2015] FCA 366.
At paragraph 14 his Honour noted that in the decision of McKenzie v McKenzie[5] the Court had permitted a non-lawyer to provide assistance to a party to litigation. In that case the Court quoted from a much earlier decision dating back to 1831; and I will briefly mention that quotation:
“[a]ny person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions and may give advice.”[6]
[5] [1970] 3 WLR 472.
[6] Collier v Hicks (1831) 2 B & Ad 663, 669; 109 ER 1290, 1292, Lord Tenterden CJ.
And in this way the case of McKenzie underpinned the concept that we now refer to as ‘McKenzie Friend’ with longstanding principle.
But relevantly to this matter, Edelman J noted at paragraph 15:
“On occasion, courts have denied an application by a person to make oral submissions (by extension of this concept of a McKenzie friend) on the basis that a McKenzie friend cannot perform the role of an advocate.”
And his Honour cited Santos v The State of Western Australia[No 2][7] and he continued:
[7] [2013] WASCA 39 [10], McLure P.
“I doubt whether there is any such absolute prohibition on assistance by making oral submissions.”
His Honour then referred to a number of decisions relevant to whether there is a prohibition on allowing a McKenzie Friend to make submissions. His Honour then continued:
“Nevertheless, where a party cannot obtain representation by a lawyer, great care must still be taken before allowing a non-lawyer to speak for the party to legal proceedings. The non-lawyer is not regulated, the non-lawyer has not been trained in the ethical duties of lawyers to the court, and the non-lawyer may do more harm to the party than good.”
Clearly, all of the considerations submitted by Mr McGrath, both orally and in his written submissions, that go against the exercise of any discretion I found based on an inherent jurisdiction are relevant to the question, firstly, as to whether the applicant should be permitted to have a McKenzie Friend, and, secondly, whether that person should be permitted to address the Court.
Mr Mayger has submitted from the bar table that if he is not permitted to appear for his wife then she will terminate these proceedings. I take it that those are his instructions in this matter for the purpose of those submissions. Mr Mayger has presented to the Court to the best of his ability and has done so in a respectful and relatively succinct manner.
I have taken into account the concerns that have been raised by Mr McGrath in his Outline of Submissions wherein he noted the decision of Reynolds v The Minister for Health & Anor[8]. The Court emphasised that the rationale for having restrictions is so that the Court receives assistance from the parties directly who know their case, or a qualified practitioner who can make informed decisions. The Court noted that any discretion departing from the rationale would need to be exercised cautiously taking into account the following considerations: namely, the complexity of the case; any unusual or special difficulties experienced by the self-represented party; policy issues surrounding allowing a representative who is not subject to disciplinary measures and has no duty to the Court or the client; policy consideration of allowing lay advocates in inferior courts or tribunals; skills and experience of the proposed advocate; the protection of the client and the opponent from the conduct of a layperson as a representative; and, of course, the interests of justice.
[8] [2010] FMCA 43.
Whilst McKenzie Friends have been permitted in a variety of circumstances, it is always in circumstances where the Court has had consideration to matters of the type to which Mr McGrath drew my attention. As a general principle, the Courts have acted on the basis that a McKenzie Friend is not entitled to address the Court, and that if in the exercise of the right of a McKenzie Friend that person behaves in a way which is inimical to or impedes the efficient administration of justice, then that person can be removed as a McKenzie Friend.
It has been noted that what runs through all of the authorities as the guiding principle in the exercise of the discretion is the public interest in the attainment of the ends of justice. It has been further noted that the public has an interest in the efficient and expeditious disposal of litigation in the Courts and that, as a general rule, that can be effected by the parties employing qualified legal advisers and counsel.
I have taken into account all of those matters. I am satisfied that it is appropriate to allow Mr Mayger to act in the position of a McKenzie Friend. I accept the submission that given the complexities of the case, he would be in a better position than Ms Mayger to make certain decisions, and that Ms Mayger would benefit from having him act as a McKenzie Friend.
I have not yet reached any conclusion as to whether or not Mr Mayger should be permitted to address the Court in open court, and in effect, appear as her advocate. I will hear submissions on the next occasion as to whether, by extension of the McKenzie principle, he should be given a right of audience to permit him to address the Court on his wife’s behalf, and I will do so once counsel for the respondent has had an opportunity to consider the authorities referred to by Edelman J, and of course, Mr Mayger himself having an opportunity to consider those authorities.
The respondent seeks further and better particulars at paragraph 4 of the Amended Claim filed by the applicant. During the course of correspondence between the parties, which I will not summarise in full, the respondent sought, and the applicant provided, further and better particulars. She did this by filing an Amended Claim. The respondent submits that the amendments are ambiguous, vague and confusing and comprised seemingly inconsistent allegations.
To the extent that the Amended Claim complains of bullying, the respondent submits that it tries to incorporate a pleading irrelevant to this claim, and notes that this is a claim for contravention against a workplace right. As a result, the respondent submits that it is prejudiced, and in essence, still in the dark as to the particularity, and that they will incur costs and delay and that unless the situation is remedied, any trial in this matter will be attended by delay, will not be expeditious and will involve extra costs being incurred to the respondent.
The amended ground 4 reads as follows:
“4.We will present a number of emails, text messages and diary entries to show that Merilyn did indeed complain to her supervisors on numerous occasions about being bullied in the workplace from early in her employment right up to the day before she was dismissed.
a) See details below in paragraph 5.”
Ground 5 incorporates, in effect, the further and better particulars provided:
5.This same documentation also shows that Merilyn’s complaints were not dealt with in a satisfactory way by her supervisors. We argue that CARA did not comply with their obligations under the Fair Work Act 2009 or the South Australia Work Health and Safety Act 2012 because they did not control the bullying.
Added Note: We do not expect the Court to rule on the above acts. They are mentioned to indicate the seriousness of Merilyn’s complaints to Cara.
Further particulars are set out below. Personnel mentioned include:
Bronwyn Staple - House Manager and Merilyn’s immediate supervisor.
Moira Skewes - Area Manager and up-line to Staples.
Kiara - Care worker and Bully.
Kim Edwards - Care Worker and Bully.
a) Email (no 1) 27 July 2015. This email was the result of a request to Merilyn from her supervisor, B. Staples, to report on the general running of the Shackleton "A" house. Staples was concerned that this house was not meeting appropriate standards.
I. Problems included.
I. Continence pads (Softies) laying on the floor
II. Kiara sleeping-in (l hr, she was on sleepover shift) and foul language (WTF = what the fuck!)
III. Use of private phones contrary to supervisor directives
IV. Merilyn was uncomfortable with the staff atmosphere and “buried herself” in work
V. Indolent, lazy attitude to work
VI. Merilyn was given an “absurd” directive, not to wash a smelly and soiled face CPAP mask used to assist a disabled clients breathing. (The client wears this mask all night and drools into it).
VII. Merilyn comments that she finds it difficult to work with these girls
II. There are already signs of bullying here.
I. Being uncomfortable
II. “Absurd” directives
III. Difficulty working with staff
III. Isolating oneself is a symptom or result of bullying. See “Overcoming Mobbing” pages 130, 136-137, 180
b) Email (no 4) 14 Aug 2015. This email refers to Merilyn’s 6 week evaluation report. See attached report – Probation - New employee evaluation form HR-304(1) 29/6/15
I.This report is generally excellent except for a “clash of personalities”.
I. The Target of bullying is often characterised as having a “personality problem”. See “Overcoming Mobbing” pages 20, 50 and 317. This is a form of “blaming the victim”. Page 88.
II. The same report comments that it is a pleasure to have Merilyn at the service with her wealth of knowledge.
c) Email (no 5) 21Aug 2015. This email from Merilyn to Staples was sent to explain an innocent incident which Merilyn believed would be exaggerated by Kim Edwards and used against her in Kim’s bullying attacks and accusations.
I.This email may indicate the onset of hyper-vigilance on the part of Merilyn. “a state of keyed-up agitation and of constantly scanning the environment for incoming threats”. See “Overcoming Mobbing” page 172.
d) Email (no 6) 23 Aug 2015. This email is a very brief reply to Merilyn’s previous email.
e) Email (no 7) 23 Aug 2015. This is a reply to the previous email 6 where Staples gave a very brief thank you for the info. Merilyn was very worried that her concerns were being ignored or not taken seriously.
f) Email (no 8) 23 Aug 2015. This reply to email seven only added to Merilyn’s stress - there did not seem to be any indication of serious action being taken in regard to Merilyn’s growing anxiety and suffering caused by ongoing bullying.
I.This email exchange is consistent with page 138 of “Overcoming Mobbing”. The Target is characterised as “overwrought and over reactive”.
g) Phone Text message (no 9) 25 Aug 2016. This Text from Area Manager, Ms Skewes is a response to Merilyn’s telling her supervisor, Bronwyn Staples, about her ideas of suicide. However Merilyn felt the bullying was still not controlled.
h) Email (no 10) 29 Aug 2015. This email confirms approval for stress/sick leave. Merilyn had been constantly tearful and suicidal over the bullying which continued unabated.
i) Email (no 11). This was a meeting between Merilyn and Area Manager, Ms Skewes. Merilyn gave Skewes her Doctor Certificates in regard to her sick leave and clearance to return to work. During this meeting Skewes told Meg to “back off” if Kim Edwards started to bully and to “walk away”. This is what Merilyn had already tried to do on many occasions to no effect. During this meeting the Bully Kim Edwards walked in and out of the meeting room a number of times, until Skewes finally told her to stop interrupting and locked the door, even then Kim Edwards tried to open the door to re-enter. Skewes was clearly making no effort to stop the cruel harassment Merilyn was suffering. Merilyn was given no hint that she may be dismissed five days later.
I.Merilyn was put back to work with both of her bullies, Kim Edwards and Kiara.
II.The comments by Skewes to “back off” and “walk away” were totally inappropriate.
III.The Doctors Clearance did not mean she was clear to be bullied again.
IV.Skewes, showed a total lack of control over the bully Kim Edwards, allowing her to interrupt the meeting with Merilyn a number of times. Merilyn believes that Kim Edwards was not even rostered on for work that day, but came in especially to spy on proceedings and/or intimidate Merilyn.
V.Such negligence on Skewes’ part in failing to run a private meeting may either indicate incompetence, gross insensitivity, or even worse, a desire to intimidate Merilyn into resigning (Constructive Dismissal).
Section 386(1)(b) of the Fair Work Act provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act. Section 12 of the Fair Work Act defines the term ‘conduct’ to include an omission. The Fair Work Act reflects the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:
• Where the employee is effectively instructed to resign by the employer in the face of a threatening or impending dismissal; or
• Where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.
Workplace info website, viewed, 6/6/16,
j) Phone Text (no 12) 5 Sep 2015. (Merilyn to Skewes) This text was in response to a post-it note on the house notice board advising Merilyn and one of the bullies, Kiara, to attend a anti-bullying course together.
I.Merilyn was devastated to realise how callous and unprofessional her supervisor was. How could she discuss her particular bullying problem in a class with a lecturer while one of her bullies was in the same class?
II.The Text also mentions the inappropriate presence of Kim Edwards coming in and out during the previous meeting.
III.Cara has denied that the interruptions by Edwards at the previous meeting occurred. However this Text confirms that it did in fact happen. Skewes makes no denial in her reply about this appalling intrusion.
IV.Merilyn has come to the conclusion that her concerns “have fallen on deaf ears”.
k) Phone Text (no 13) 5 Sep 2015. Message Saturday 05/09/2015 at 6:33 PM: From Moira Skewes replying to Merilyn’s message of 05/09/2015 at 3:56PM. This Text by Skewes replies to Merilyn’s previous Text.
I. Skewes offers to put Merilyn on a different training session to Bully Kiara. However; Skewes makes no comment in regard to Merilyn’s revulsion about Kim Edwards “gate crashing” their private meeting.”
The respondent relies on r.16.45 of the Federal Court Rules 2011 (Cth) (‘the FC Rules’) which apply in these proceedings by virtue of s.43 of the FCC Act and r.1.05 of the FCC Rules. The respondent submits that the Amended Claim is worded in such a way as to make it ambiguous whether she was dismissed because she made one complaint or a series of complaints, and points to the use of the singular in paragraph 1, and the plural in paragraph 4. Further, paragraph 5 lists 11 communications between the applicant and the respondent. It is not possible to say on the present state of proceedings, so the respondent says, if the applicant asserts that each communication was, in fact, a complaint.
In submissions for the applicant, Mr Mayger confirmed that the applicant intended to identify numerous complaints.
I agree with the submission of the respondent. The Amended Claim does not properly particularise the complaints on which the applicant intends to rely. It is in many respects confusing and somewhat ambiguous. I will make an order for further and better particulars to be provided for paragraph 4 at the conclusion of these reasons.
I will now consider the strike-out application. The respondent seeks that paragraphs 5 to 9 of the Amended Claim be struck out. Paragraph 5 is above and paragraphs 6 – 9 are as follows:
“6.We will also argue and present referenced literature about workplace bullying to show that CARA’s actions have been consistent with definitions of a “bullying prone organisation”. These details about bullying will be important in showing that counter arguments from CARA lack credibility.
Further particulars
a)Many of the terms and descriptions of Merilyn used by Cara in their responses are actually symptoms of being bullied and of not being taken seriously by management. Such terms as “personality conflict”, “communication problems”, “Non team player” and “isolating oneself from co-workers”. These are not natural traits for Merilyn and do not describe what is really happening.
b)See “Overcoming Mobbing” pages 316-322, about what constitutes a mobbing prone and mobbing resistant organization.
c)It may be worth noting that the well-regarded and Mobbing resistant organisation in the example puts employee welfare second after client welfare on their website statement of Mission, Vision and Values. In contrast Cara does not even mention employees on its’ website statement of Vision, Work and Values. (“Overcoming Mobbing” pages 321-322.)
We have deleted the following paragraphs 7 and 8 as unnecessary.
9.We will go through CARA’s written response to our allegations (FWC Form F8A Employer Response to General Protections Application) and where possible cross examine the supervisors involved. We believe CARA’s response is factually incorrect and also uses terms and concepts (for instance “personality conflict”) that suggest a “bullying prone organisation” as described in expert literature on workplace bullying and mobbing.
Further Particulars in regard to FormF8A - Employers response
a)Para, a. - If Merilyn’s allegations (complaints) were investigated Merilyn was not part of it. No statements were taken from her and she was not informed about the investigations or their outcome. We can only guess at who the staff members referred to were.
b)Para, b. Merilyn does not recall being offered any apologies. It is not in her nature to reject an apology.
c)Para, c. In regard to meetings held. When were they held, where were they held, who was present and what was the outcome? Merilyn’s complaints were very serious and included unlawful conduct by other staff members towards her. Merilyn does not recall any meeting that reflected the gravity of her situation.
d)Para, d. If the matter had been responded to in a successful way then the fruit of that response would have been an end to the bullying. The fact is that Merilyn was continually put back on shift with the bullies and the bullying behaviour continued. The so-called coaching by Moira Skewes was in fact an attempt to have Merilyn accept damaging and unlawful behaviour. This advice to back off from the bully and ignore the behaviour is fatuous nonsense. (See “The Bully at Work” page 13).
e)Para, i. As previously mentioned; The Target of bullying is often characterised as having a “personality problem”. See “Overcoming Mobbing” pages 20, 50 and 317. This is a form of “blaming the victim”. Page 88.
The same report comments that it is a pleasure to have Merilyn at the service with her wealth of knowledge.
f)Para, I. Merilyn’s medical clearance to return to work was not a clearance to continue the bullying
g)Para, m. Merilyn is not mistaken about the fact of the intrusion by Kim Edwards into a private meeting. Ms Skewes is the one who is mistaken.
h)Para, n. See response to paragraph d.
i)Para, o. The fact that Bullying and Harassment Training was pre -arranged does not alter the point that a caring and responsive management would not expect Merilyn to attend such training with a perpetrator.
j)q. As Merilyn recalls it, a number of the so-called meetings were a chat with Bronwyn Staples in a public area while Staples was having a smoke with other smokers standing around. Also Staples offered to have a phone conversation with Merilyn while Staples was on night shift. This would have been, once a fortnight, after midnight, on a Saturday/Sunday morning shift. These meeting arrangements are clearly not a proper way to handle such important matter. In fact they suggest avoidance of the problem. Even at the two meetings where Skewes attended Merilyn recalls that neither of the supervisors had pen or paper to take notes. Nor did they have a diary to write details into.”
Mr Mayger, in his submissions, repeated the assertion that the respondent was a bullying-prone organisation. I agree with the submission of the respondent that the paragraphs complained of are not proper pleadings in this matter, in that in some respects it contains material of no value to the pleadings, it contains vexatious material in that the lack of purpose or value will cause frustration of the proceedings, it may cause prejudice, embarrassment and delay, and some of the particulars pleaded fail to disclose a reasonable cause of action as the breaches of bullying obligations under other Acts cannot be pursued in this matter. Further, the further and better particulars are ambiguous and it is not entirely clear what they are particulars of.
On the next occasion the Court will hear submissions from the parties as to whether, having allowed Mr Mayger to appear as McKenzie Friend, by extension, he should also be allowed to make submissions in open court on behalf of the applicant.
I make the following orders to be found at the beginning of these reasons.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Date: 22 August 2016
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