Michelle Margaret Ogden v Royal Australian Central Canteens Board T/A Navy Canteens, Iain William McAndrew, Yvonne Richards
[2022] FWC 775
| [2022] FWC 775 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Michelle Margaret Ogden
v
Royal Australian Central Canteens Board T/A Navy Canteens, Iain William McAndrew, Yvonne Richards
(AB2021/570)
| DEPUTY PRESIDENT CROSS | SYDNEY, 6 APRIL 2022 |
Application for an FWC order to stop bullying – Application dismissed.
Introduction
On 23 September 2021, Ms Michelle Ogden (the Applicant) filed an application (the Application) pursuant to s.789FC of the Fair Work Act 2009 (the Act) for orders to stop bullying at work. The Application alleged that bullying occurred in the course of the Applicant’s employment as a canteen employee in various canteens operated in Royal Australian Navy bases.
In addition to the Royal Australian Central Canteens Board (the First Respondent), the Application identified two persons against whom bullying was alleged, being:
(a) Mr Iain McAndrew. a Regional Manager of the First Respondent (the Second Respondent); and
(b) Ms Yvonne Richards, the Human Resources Manager of the First Respondent (the Third Respondent).
In this decision, the First, Second and Third Respondents shall be collectively referred to as the Respondents.
In the conduct of the Application, and at the hearing of the matter on 17 and 18 January 2022 (the Hearing), the Applicant represented herself. The Applicant consented to the Respondents being legally represented at the Hearing, and permission for such representation was formally granted to the Respondents. Mr Ward, Solicitor, represented the Respondents, and Mr Ward accepted that in the circumstance where an Applicant is unrepresented, but a Respondent is represented by lawyers, that there may be more involvement of the Commission in questioning witnesses than may ordinarily be expected.[1]
The Applicant gave evidence on her own behalf by way of an undated witness statement, and an email dated 10 January 2022, that was essentially a statement in reply. The Respondents relied upon witness statements of Mr McAndrew, Mr Allan Hansard and Ms Richards all dated 23 December 2021. All witnesses were cross-examined.
The Applicant did not prepare a draft order of the relief she sought, however in the Hearing the Applicant outlined that she sought orders that the Respondents comply with their policies and procedures, particularly the Performance Management Policy.[2]
Relevant Facts
The Applicant and the Respondents relied principally on a common bundle of documents. Those documents constituted a contemporaneous record of relevant occurrences, and many of those documents were annexed to the statements of the Respondents. Those documents, and the statements of the Applicant and the Respondents, disclosed the following:
(a)On 16 September 2019, the Applicant commenced employment with the First Respondent in the position of casual Food and Beverage Attendant, Level 2. As a Food and Beverage Attendant, the Applicant undertook the following duties and responsibilities:
·Ensure excellent and professional client service at all times.
·Set-up, reset and pack away food presentation areas as directed.
·Undertake general service duties of food and beverage in an effective friendly and professional manner.
·Communicate and liaise with team members, kitchen and other areas of operation.
·Follow hygienic food and beverage handling procedures.
·Provide general assistance in cleaning in kitchen and service areas, as directed.
·Any other duties as directed within the scope of job holder’s skills and capabilities.
·Ability to work in a team based environment.
·Able to work a flexible roster including early mornings, evening and weekend work where necessary.
·Other duties as required and outlined by management.
(b)In the period 16 September 2019, to early January 2021, the Applicant was located at HMAS Penguin where she ran a canteen alone. In January 2021, the Applicant was relocated to HMAS Watson working in a small team.
(c)On 13 August 2020, Mr McAndrew contacted Ms Richards to raise concerns about the Applicant, particularly regarding certain text messages he received from the Applicant.
(d)On 14 August 2020, the Applicant contacted Ms Richards regarding concerns she had with her relationship with Mr McAndrew and her belief that he was bullying her. The Applicant alleged Mr McAndrew made inappropriate comments to her regarding her appearance, including:
“Don’t touch me, I don’t know where you have been.”
“Look how young she looks. She’s a grandmother.”
“You’re big enough. You don’t need to eat anything from this shop.”
Mr McAndrew denies making any inappropriate comments.
(e)On 14 August 2020, Mr McAndrew took the crate of drinks out of the boot of the Applicant’s car and closed it heavily. That upset the Applicant and she raised her concerns with Mr McAndrew by text message, and with Ms Richards.
(f)In September 2020, the internet sim card used in canteens was cancelled by the First Respondent’s Canberra office, and the internet did not work. The canteens were not informed of this happening. The Applicant informed Mr McAndrew the internet was not working and he delivered a dongle to the canteen in order for the operation to continue. The internet problems interfered with the Applicant’s ability to order stock.
(g)There were many issues with supply during the COVID pandemic as suppliers did not have stock of items and delivery schedules were changed. The Applicant complained about the effect of those issues on the performance of her work.
(h)On 21 December 2020, the Applicant accepted an offer to convert from casual to permanent part time employment.
From January 2021, when the Applicant was moved from HMAS Penguin to HMAS Watson, there were both:
(A)Concerns raised about the Applicant’s behaviour by Mr McAndrew, his manager Rhonda Gregg (National Operations Manager) and the Applicant’s colleagues; and
(B)Concerns raised by the Applicant about some of her colleagues and Mr McAndrew.
(j)On 19 January 2021, the Applicant contacted Ms Richards to advise that she was once again experiencing intimidating behaviour from Mr McAndrew. The Applicant also advised that she had offended a co-worker named Johnathon with a comment, but she subsequently apologised when she realised the co-worker was offended.
(k)Between about 19 and 27 January 2021, the Applicant claimed that another co-worker named Adam constantly made cat noises at her, and on 27 January said to Johnathon regarding the Applicant “she just needs a good hard root.” There were other alleged interactions around that time between the Applicant, Johnathon and Adam that were summarised in an email sent by the Applicant to Mr McAndrew on 28 January 2021, in the following terms:
“Thank you Iain,
thank you for walking in when you did. I’m feeling sick really uncomfortable working here, been a very hard couple of weeks, he just doesn’t stop. I’m all for learning new things but I just don’t sit well with being told to do something that is wrong, the way he speaks is so wrong. I’m not homophobic as I have gay friends and family members but they are obviously of a higher standard. I’m the third wheel here, yesterday I caught him trying to steal half a dozen 600ml sprite drinks saying that they were out of date when I checked date they were good to end of March, so I put them back in the fridge. His comment was I was going to take them home John laughed and said “oh Adam” that doesn’t sit well with me. The way he openly loudly yells in the canteen about management swearing also doesn’t sit well with me. I have no need to lie and by now I’d hoped you know I don’t, I love my job but I can honestly say it’s getting to feel like I’m being pushed out clearly not wanted here. Don’t think I’ll be coming in tomorrow as I’m feeling quite anxious, is there someone else I have to tell besides yourself. I will be going to see Dr this afternoon so I’ll have a medical certificate.”
(l)Regarding the same incidents as those above, Mr McAndrew summarised what had occurred in an email to Ms Richards also on 28 January 2021, in the following terms:
“Good Morning Yvonne,
On the 19th of January I was over at Watson trying to repair an IT issue regarding the till.
Whilst I as there I noticed the tension in the group of staff being Adam, Jonathan and Michelle. I was witness to staff communicating poorly with each other and tried to mediate between Jono and Michelle by talking to them both individually and coming to what I thought was a path that they could work together.
As it seemed to be ok I thought it had resolved itself.
Today I attended the canteen to pass over stocktake sheets and check on the situation and I walked into Adam and Michelle essentially yelling at each other.
There was heated discussions going on and essentially Adam had told Michelle to chillaxe!? Unsure of what had previously been said I heard Jono ask Michelle to have a break and she said no she would go when she was ready. On this occasion I could not stay and discuss the situation as Watson is in Traffic Management and vehicles are not to be left for long and only deliveries can be made. I have texted Michelle to contact me when she can and I will have a welfare discussion with her.
At this stage I think the best thing to do is finalize Michelle’s working at Watson and Navy Canteens for that matter as I believe wherever I move her will not help. She was unhappy with her working conditions at Penguin whilst liking the environment could not settle into a good working routine. This is proving to be the case at Watson also. Unfortunately I believe we should finalize her employment today if possible by ending her probation period.
If you could please contact me to discuss when you are free that would be great.”
(m)On 3 and 18 February 2021, Ms Richards contacted the Applicant about her email of 28 January 2021, to Mr McAndrew. The Applicant advised that she would be seeking support from our Employee Assistance Provider, Assure Programs.
(n)From early January 2021, to April 2021, the Applicant was moved to all five other canteens in the First Respondent’s Sydney operations.
(o)In early March 2021, at HMAS Waterhen, the Applicant had co-workers named Max and Doris. There were points of friction that arose between the Applicant and those co-workers regarding such issues of food preparation, a burn injury to the Applicant and appropriate cleaning practices. Those co-workers also raised complaints against the Applicant that were summarised in correspondence that followed a performance management meeting that occurred on 15 March 2021, and was attended by the Applicant, Mr McAndrew and Ms Hannah Gibson, a Human Resources Business Partner engaged by the First Respondent. That letter was in the following terms:
“Dear Michelle,
Summary of Performance Meeting
I am writing to confirm our discussion in the performance meeting you attended at 11:00am on 15th March 2021. Iain McAndrew and I, Hannah Gibson (HR Business Partner – Employment Innovations), were present in the meeting. You were provided with notice of the meeting and the opportunity to bring a support person.
The purpose of the meeting was to notify you that Navy Canteens has received two complaints regarding your behaviour in the workplace. The complaints were similar in nature; relating to your colleagues feeling uncomfortable working with you and stating that your behaviour interrupts their work and business operations.
In the meeting, I summarised their main concerns which included the below behaviour:
·You are often very intrusive in your colleagues’ workspaces
·You interrupt your colleagues while they are performing a task, interfering with their work
·You sometimes demonstrate aggression towards decisions that you don’t agree with
·You sometimes fail to follow direction and protocol
·You demonstrate rudeness
·You sometimes display poor communication skills
·Most concerningly the complaints have said that they feel uncomfortable working with you and would prefer not to work with you moving forward
You were provided with the opportunity to respond. In your response, you largely denied the behaviour listed above and described a number of recent workplace issues reflecting potential communication, training and protocol problems that you have experienced at work.
Iain recognised your concerns but asked that these issues be discussed at another time as it was not relevant to the purpose of the meeting.
Iain and I tried to convey the seriousness of these complaints to you. Even though you deny this behaviour we ask you to please take these complaints very seriously and be mindful in your interactions with your colleagues moving forward.
Navy Canteen recognises that problems between colleagues will arise at work from time to time and has processes in place to deal with these efficiently, confidentially and formally. The meeting today was the first step in this process with the aim of rectifying these issues as soon as possible. We ask that you treat our discussion as highly confidential and do not discuss this matter with your colleagues.
Should there be any matters raised in this letter that you wish to discuss, please do not hesitate to contact me.”
(p)On 29 March 2021, the Applicant identified an issue with regard to unpaid overtime. Payment was subsequently made in May 2021.
(q)On 21 April 2021, the Applicant became absent from work on workers compensation due to a claim she made in relation to an injury she suffered on 28 January 2021. She has not worked the First Respondent since then, however remains an employee.
(r)On 6 May 2021, Ms Richards had a telephone discussion with the Applicant. The Applicant noted she had looked at the definition of bullying on the Fair Work website and that Mr McAndrew’s behaviour “ticked all the boxes.”
(s)On 2 August 2021, the Applicant made a formal complaint about the incidents with her co-worker Adam on 28 January 2021. That complaint was investigated and on 14 September 2021, the Applicant was provided with the outcome of the investigation which recommended no disciplinary action against Adam.
(t)In a Rehabilitation Progress Report dated 14 December 2021, the Registered Psychologist observed:
“Over the current reporting period At Work OH&S have been assisting and monitoring Ms Ogden’s rehabilitation and return to work. Following the initial assessment At Work OH&S has attended two case conferences with the treating doctor Dr Natalie Kordijan and Psychologist Peter from Good Thinking Psychology. Ms Emma Hayward, Employer Representative attended one of these case conferences. At both nominated treating doctor, discussions were held regarding Ms Ogden’s prognosis and abilities to return to Navy Canteens in her pre-injury position. Both Nominated Treating Doctor and Psychologist indicated that Ms Ogden would not be able to return to work at Navy Canteen under the supervision of her Supervisor due to current psychological symptoms. Both treating parties agreed that the best return to work option for Ms Ogden was to return to work with a new employer should Navy Canteen be unable to accommodate Ms Ogden with a new supervisor. During the case conferences Ms Ogden advised that she was lodging a claim through the Fair Work Commission reporting that in her opinion the employer had not managed her claims of bullying in an acceptable manner.
Following the case conferences A return to work plan was developed to assist Ms Ogden with her rehabilitation and return to work with a new employer. At Work OH&S experienced delays with Ms Ogden signing the plan due to Ms Ogden requiring input from her treating parties to review the return to work plan. On 22nd November 2021, Ms Ogden signed the return to work plan agreeing to participate in the activities outlined.
(Emphasis added)
(u)There have been occurrences where dispute has arisen regarding the correctness of workers compensation payments to the Applicant and she has alleged these constitute financial bullying.
The First Respondent has a Performance Management Policy (the PM Policy) that applies to the Applicant’s employment The PM Policy states its Application as being:
1. The purpose of this policy is to ensure all Navy Canteens’ employees subject to performance management action are treated fairly, impartially, with appropriate confidentiality and sensitivity. This policy applies to all Navy Canteens’ employees except casuals.
2. The primary objective of the RANCCB’s performance management process is to improve performance and to correct inappropriate behaviour. Accordingly, it is important that performance management procedures are applied promptly to avoid more serious consequences.
Relevant Evidence from the Hearing
(a) The Applicant
The Applicant presented as a forthright individual, and I have no difficulty accepting that where she perceived an issue arising in her employment she would promptly and prominently raise such issue, as she did on numerous occasions.
The Applicant noted that she first became aware that Mr McAndrew had concerns about her performance in the meeting of 15 March 2021.[3] The complaints that were ventilated were anonymous, and so difficult to deal with,[4] though as the Applicant only had two co-workers at that time, she could identify the complainants.[5]
The Applicant denied that by seeking to return to employment with the First Respondent she was acting contrary to the advice of medical practitioners. Her evidence was:[6]
“So aren’t you asking the Commission to make orders that are contrary to medical advice from medical practitioners? ‑No, I’m still employed with Navy Canteens and the only reason I’m not there is because of the bullying that I received from him and the way that I was treated. I am waiting for the outcome of this - obviously this whole Commission to see what actually does happen or where I can go, because if there are no orders made against him then it certainly wouldn’t be a place that anybody with a sound mind would want to return to. But obviously I have always stated I love my job; I never left there because of any other reason besides that.”
(b) McAndrew
It became clear that in the meeting of 15 March 2021, while the complaints of the Applicant’s co-workers, Doris and Max, were put to her, the responses that the Applicant provided were not considered either in the meeting or before the letter of 15 March 2021 regarding that meeting was sent.[7] That was in circumstances where Mr McAndrew didn’t entirely believe what Doris and Max said. In summary, Mr McAndrew gave the following evidence regarding the meeting of 15 March 2021:[8]
And then on the basis of what had been told to you, you conducted the performance meeting with the applicant? ‑Correct.
And she gave you responses that she felt explained to a certain extent why she feels people could’ve been making complaints against her? ‑Yes.
When I look at the summary of the performance meeting, it seems that you simply did not accept anything that was put to you by the applicant, without the need to speak with the complainants? ‑Okay.
Is that correct? ‑That’s correct.
(c) Richards
Ms Richards presented as a considered and responsive witness. She readily conceded that she may not have always been prompt and responsive to the Applicant’s concerns, though she did eventually respond to each email and phone call.[9]
In her statement, Ms Richards had described the Applicant as consistently demonstrating erratic and unsociable behaviours. Regarding that statement Ms Richards gave the following evidence:
Okay. Thank you. Any re-examination, Mr Ward? Or, before you do, Just a few questions from myself, Ms Richards. when I look at your statement, I think it is fair to say -and please dispute it if you disagree, but you talk of - you know, particularly at the paragraphs that I identified when we were making your affidavit at paragraph 37 particularly, about effectively it’s an accumulation of what were seen as difficulties that arose in a number of canteens that Ms Ogden worked in relation to. Now, When one looks at the evidence, is it fair to say that the problems - well, stepping through; the incident on 28 January was dealt with by Mr McAndrew speaking with all three parties and essentially there couldn’t be a determination of fault either way? ‑Yes. That’s true.
Okay. And then there’s the - the next issues that arose were around 1 March, following up to 9 March, which were involving Mr Thakker and Doris Pei Hua Xu, correct? ‑Yes. That’s right.
And they were the ones that were handled in an anonymous - - -? ‑Yes.
(indistinct) to anonymous complaints that everyone could work out apparently pretty quickly who it was and there seemed to be a determination in the performance management document that the fault lay with the applicant? ‑Yes. In terms of the behaviour that had been described to us by Mr Thakker and Doris.
Yes. And then finally there was some correspondence from Ms Gregg on 8 April? ‑Yes.
Okay. But to say that - to attribute some fault to the applicant in relation to each of those issues, it’s fair to say, is it not, that only the matter on the 15th or early March that were investigated in the meeting on 15 March were the subject of any performance management in accordance with the policy? ‑Yes. That’s right. They were - - -
The 28 January? ‑Yes. Sorry. At the time, in March, they were the only complaints, I suppose, that we had received about Ms Ogden.
Consideration
The circumstances in which the Commission’s power to make anti-bullying orders is
enlivened is set out in s.789FF(1) of the Act as follows:
(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.
As Vice President Hatcher identified in Mac v Bank of Queensland Ltd[10]
(Mac):
“s.789FF establishes three prerequisites to the exercise of the power to make anti-bullying orders:
(1) A worker must have made an application under s.789FC.
(2) The Commission must be satisfied that the applicant worker has been bullied at
work by an individual or group of individuals.
(3) The Commission must be satisfied that there is a risk that the applicant worker will
continue to be bullied at work by the individual or group of individuals.”
The first prerequisite is satisfied by the Application made by the Applicant. The
Applicant reasonably believes that she has been bullied at work and has sought orders under
s.789FF of the Act.
The second prerequisite requires satisfaction that the Applicant has been bullied at
work by an individual or a group of individuals. Section 789FD sets out the test for
establishing whether a person has been ‘bullied at work’. It provides at sub-sections (1) and
(2) as follows:
(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.
In Blogojevic v AGL Macquarie Pty Ltd ,[11] the Full Bench of the Commission found as
follows regarding s.789FD:
[15] The test is objective. What is reasonable is a question of fact. Behaviour is unreasonable if a reasonable person, having regard to all the circumstances, may consider it to be unreasonable.
[16] The expression ‘repeatedly behaved unreasonably’ in s.789FD(1)(a) of the Act falls within a definition provision and is to be interpreted and applied with reference to the policy or purpose of Part 6–4B of the Act, which is to establish a mechanism by which the bullying of workers at work may be stopped.
[17] A one-off incident will not be a sufficient basis for the making of an application to the Commission. Provided there is more than one occurrence, there is no specific number of incidents required to meet the condition of “repeated” behaviour, nor does the same specific behaviour have to be repeated. The statutory provision requires repeated unreasonable behaviour by the individual or a group of individuals towards the applicant worker or a group of workers to which the applicant belongs.
[18] Section 789FD(2) qualifies the definition of when a worker is bullied at work such that it does not apply to ‘reasonable management action carried out in a reasonable manner’. There are three elements to this qualification:
· the behaviour must be management action;
· the taking of such management action must be reasonable; and
· the management action must be carried out in a manner that is reasonable.
[19] The expression ‘management action’ in s.789FD(2) is not confined only to managerial decisions but encompasses a wider range of conduct or behaviour which affects an employee, including such things as performance and disciplinary matters, the allocation of work and the way in which work is to be carried out. Placing an employee on a PIP clearly falls within the scope of the expression ‘management action’.
[20] To determine whether the action constitutes “reasonable management action” it is necessary to undertake “an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time”. The test for reasonable management action is whether the “management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’.”
[21] The specific question of whether placing a worker on a PIP constituted “reasonable management action” for the purposes of s.789FD(2) of the Act, was considered by Vice President Hatcher in Mac v Bank of Queensland Limited. In that case, the applicant, Ms Mac, argued that the managerial decision to impose, and continue to impose, a PIP on her, was not reasonable management action because the shortcomings in her performance had not been sufficiently serious to justify that decision being made. In assessing the reasonableness of this managerial decision, the Vice President did not attempt to form his own judgment as to whether Ms Mac’s overall performance was satisfactory, explaining:
‘… I do not consider that an assessment of whether the imposition of the PIP on Ms Mac was unreasonable requires the Commission to engage in the process of attempting to form its own judgment as to whether her overall performance was satisfactory or not and to substitute its judgment for that of the relevant BOQ managers and supervisors. Even if a different and better opinion of Ms Mac’s work performance could legitimately be formed on the evidence before me, that would not be sufficient to show that the decision to introduce the PIP was unreasonable. What is necessary is for Ms Mac to demonstrate that the decision to introduce the PIP lacked any evident and intelligible justification such that it would be considered by a reasonable person to be unreasonable in all the circumstances.’
(emphasis added)
[22] In the Decision subject to appeal the Commissioner agreed with the approach taken by the Vice President and applied it to the matter before him, noting: ‘It follows that I do not need to form my own judgment as to whether Mr Blagojevic’s overall performance was satisfactory or not. The primary issues for determination are whether the decision to introduce the PIP or revise it lacked any evident and intelligible justification, and whether the introduction and implementation of the initial and revised PIP was carried out in a reasonable manner.’
[23] It is convenient to note here that Mr Blagojevic did not challenge this aspect of the Commissioner’s decision; nor did he contend that Mac v BOQ was wrongly decided. For our part, we agree with the observations of Vice President Hatcher set out at [21] above.
(Footnotes omitted)
It is notable in the Applicant’s case that the unreasonable behaviours alleged against
the Respondents are not of the kind identified by Vice President Hatcher in Mac as belonging
to a list of the features at least some of which one might expect to find in a course of repeated
unreasonable behaviour that constituted bullying at work. Vice President Hatcher observed:[12]
“My list included the following: intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination.”
However in Mac it was also observed that it was not unknown for performance management techniques to be used as a means to achieve and justify a predetermined outcome of termination of employment, and so be able to be characterised as a series of repeated instances of unreasonable behaviour such as to fall within the first limb of the definition of bullying at work.
Guidance on the application of the exclusion of reasonable management action carried out in a reasonable manner is provided in the Explanatory Memorandum to the Bill introducing the provision,[13] which provides:
“Persons conducting a business or undertaking have rights and obligations to take appropriate management action and make appropriate management decisions. They need to be able to make necessary decisions to respond to poor performance or if necessary take disciplinary action and also effectively direct and control the way work is carried out. For example, it is reasonable for employers to allocate work and for managers and supervisors to give fair and constructive feedback on a worker’s performance. These actions are not considered to be bullying if they are carried out in a reasonable manner that takes into account the circumstances of the case and do not leave the individual feeling (for example) victimised or humiliated.”
In her closing submissions, the Applicant identified five incidents as constituting bullying behaviour. They were:
(a)The slamming of the car boot in August 2020;
(b)Public humiliation from being called to a meeting in January 2021, and the failure of Mr McAndrew to address the comment by Adam on 27 January 2021;
(c)The email from Mr McAndrew to Ms Richards on 28 January 2021 suggesting termination of employment;
(d)The performance meeting of 15 March 2021, and the lack of procedural fairness; and
(e)The inappropriate comments of Mr McAndrew.
Upon considering the weight of the evidence I am unable to conclude that Mr McAndrew made the alleged inappropriate comments, but can conclude that the other events relied upon by the Applicant occurred.
The Respondents submitted in summary that:
(a)The Respondents deny having ever behaved unreasonably towards the Applicant;
(b)The Applicant has not been bullied at work within the meaning of section 789FD(1) of the Act;
(c)As no bullying has occurred, and also given that the Applicant is not in the workplace, the Fair Work Commission cannot be satisfied that there is a risk the worker will continue to be bullied at work (s 789FF(1)(b)(i)); and
(d)the circumstances of the matter do not create a situation where the Commission has jurisdiction to make a stop bullying order and accordingly the application should be dismissed.
The email from Mr McAndrew to Ms Richards on 28 January 2021 suggesting termination of employment certainly supports a conclusion that conduct of the Respondents was directed at least partially towards that aim. Combined with the failure of Mr McAndrew to address the comment by Adam on 27 January 2021, and the failure to consider the explanations of the Applicant in the performance meeting of 15 March 2021, before then issuing the letter of the same date, a course of conduct towards the termination of the Applicant’s employment is disclosed.
The Act, however, specifically protects the rights of persons conducting a business or undertaking to take appropriate management action and make appropriate management decisions. In determining the reasonableness of management action, the Commission does not engage in determining whether the Applicant’s overall performance was satisfactory or not. What is necessary is for the Applicant to demonstrate that the performance management lacked any evident and intelligible justification such that it would be considered by a reasonable person to be unreasonable in all the circumstances.
It is clear that the Applicant had a number of disputes with co-workers. The Respondents, upon becoming aware of those disputes, necessarily had to attempt to resolve those disputes. It is evident, particularly from the evidence of Ms Richards at the Hearing, that from around at least January 2021, the Respondents approached the resolution of such disputes with a predisposition that the Applicant must be the cause of such disputes.
The provisions of the First Respondent’s own Performance Management Policy, which “outlined a structured process based on interview, feedback and goal setting” does not appear to have been followed in even the most cursory fashion. Put simply, there may have been intelligible justification for the Respondents’ conclusions regarding the Applicant’s conduct and performance management, but that justification is clouded by the predispositions held regarding the Applicant.
The bullying provisions of the Act, however, are directed towards preventing future bullying behaviour, rather than providing redress for past conduct.[14] While I consider that the Respondents should seriously review the manner in which performance management of the Applicant has been conducted, assuming that conduct amounted to bullying conduct, I do not consider that there is a risk that the Applicant will continue to be bullied at work.
The Rehabilitation Progress Report dated 14 December 2021, noted that both parties agreed that the best return to work option for the Applicant was to return to work with a new employer should Navy Canteen be unable to accommodate the Applicant with a new supervisor. The Parties accepted that Mr McAndrew was the Manager of all canteens in New South Wales.
The Applicant has not attended the workplace for over eleven months. While she has submitted that she considers she has some ability to return to work, that submission stands in contrast to existing medical evidence.
If the medical advice regarding the Applicant is varied and there is an ability for her to return to work, any future conduct by the Respondents contrary to the Performance Management Policy may be found to constitute a repetition of unreasonable management action, and so bullying conduct.
Conclusion
While the conduct of the Respondents in dealing with the Applicant is concerning, and may constitute bullying conduct, as I cannot be satisfied that there is a risk that the Applicant will continue to be bullied at work, I have no discretion to make an order to stop bullying.
The Application is dismissed.
DEPUTY PRESIDENT
Appearances:
Ms M Ogden, on her own behalf
Mr W Ward, for the Respondents.
Hearing details:
2022
January 17 and 18.
Sydney (via videoconference)
[1] Transcript PN12.
[2] Transcript PN835.
[3] Transcript PN151
[4] Transcript PN 202 and 203.
[5] Transcript PN218.
[6] Transcript PN179.
[7] Transcript PN 466 to 507.
[8] Transcript PN555 to 558.
[9] Transcript PN770.
[10] (2015) 247 IR 274 at [75].
[11] (2018) 279 IR 380.
[12] (2015) 247 IR 274 at [99].
[13] Fair Work Amendment Bill 2013, at [112].
[14] Re: McInnes (2014) 241 IR 158 at [9].
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