Mircea Stancu

[2015] FWC 1999

[2015] FWC 1999

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Mircea Stancu
(AB2014/170)

Social, community, home care and disability services
COMMISSIONER LEE	MELBOURNE, 26 MARCH 2015

Application for an FWC order to stop bullying - various jurisdictional objections - no jurisdiction - application dismissed.

Background and case outline

[1] Mr Mirceau Stancu (the Applicant) has made an application under s.789FC of the Fair Work Act 2009 (the FW Act) for an order to stop bullying conduct he alleges has taken place, and may in the future take place, within his workplace.

[2] The Applicant is a volunteer with Australian Volunteers International (AVI). The bullying is alleged to have taken place while the Applicant was engaged as a volunteer to perform work as a Sanitation Engineer in The Ministry of Public Works and Utilities (The Ministry) in South Tarawa, Kiribati.

[3] The bullying complaint is directed at Ms. Kiji Faktaufon. Ms. Faktaufon is the AVI Country Manager for Fiji and Kiribati. The bullying complaint relates to a number of incidents and discussions the Applicant had with Ms. Faktaufon. Specifically the Applicant alleges that Ms. Faktaufon bullied him at their meeting on 10 September 2014; in the formal warning issued to him on 9 October 2014 (dated 1 October 2014); in an email dated 13 October 2014 and in a phone conversation held on 15 October 2014.

[4] AVI has raised a number of jurisdictional and other objections to the application. In summary these are:

• The Applicant is not undertaking “work” for AVI but rather performs work for The Ministry. While AVI submits that AVI itself is a constitutionally covered business 1, The Ministry is not a constitutionally covered business and is therefore outside of the anti-bullying jurisdiction.



• The actions AVI took did not create a risk to the health and safety of the Applicant.



• The actions of AVI can be characterised as reasonable management action.

[5] I note that a further jurisdictional consideration arises from the fact that the Applicant’s work location is in Kiribati. Irrespective of whether it is determined that the Applicant is working for AVI or The Ministry, there are limits to the geographical application of the FW Act which forms part of the consideration as to whether there is jurisdiction to determine the matter.

The proceedings

[6] I conducted a preliminary conference by telephone. Efforts were made to resolve the issues between the parties. The conference did not resolve the issues and subsequently, directions were issued for the filing of materials. The directions provided that material would be filed on all matters related to the application including the jurisdictional objections. Liberty was provided for either party to request a hearing. No hearing was requested by either party.

The evidence

[7] Witness statements were provided from Mr. Peter Britton (Executive Manager of International Services for AVI), Ms. Faktaufon (Country Manager Fiji and Kiribati) Mr Stancu, the Applicant and Sister Marella Rebgetz. I make clear for the benefit of both parties that I have read and considered all of the material filed. However, I will make reference in this decision only to those matters that are relevant to my determination in the matter.

Evidence relevant to where and for whom the applicant works as a volunteer

[8] AVI facilitated the placement of the Applicant as a volunteer to perform work as a Sanitation Engineer in The Ministry in South Tarawa, Kiribati as part of the “Australian Volunteers for International Development Program” (the AVID Program). This was done by way of a “nomination” of the Applicant to The Ministry. The nomination provides a CV for the Applicant, summarises his experience and asks The Ministry if they would like to accept the Applicant as their nominated candidate and if they do, to confirm it. The confirmation sent back to AVI by The Ministry states: “I confirm my acceptance of Australian Volunteer’s International nomination of MIRCEAU STANCU to work with my organisation Water Engineering Unit of the Ministry of Public Works and Utilities in the position of Sanitation Engineer”. The Applicant started his volunteering assignment in June 2014.

[9] The submission from AVI characterises its role in relation to the AVID Program as one where AVI is contracted by the Department of Foreign Affairs and Trade (DFAT) to provide program management services for the AVID Program. This includes: liaising with host organisations as to whether they qualify for involvement; receiving and processing requests by host organisations for the engagement of volunteers; selection and nomination of candidates to host organisations; assisting the volunteer move and settle in the host country; providing risk management of the volunteer while in the host country and assisting in the volunteers repatriation to Australia when the assignment ends.

[10] AVI provide a guidebook for Australian volunteers on the AVID Program. The guidebook sets out a range of information for volunteers and in particular provides evidence of the relationship between AVI and the volunteer before they leave for the host country, while they are away and when they return. Relevantly, it includes the following provisions:

● Confirmation of the assignment is conditional on the AVID Program Volunteer Code of Conduct (the Code of Conduct) which must being signed by the volunteer and the Host Organisation upon accepting the nomination of AVI.

● That working hours for volunteers are the same as a full time local employees in the Host Organisation. Public Holidays and sick leave are consistent with local employees.

● There is no access to TOIL arrangements but volunteers can make informal flexible arrangements for out of hours work with the Host Organisation.

● Special leave for a death in the family or similar must be approved by the AVI Country Manager and Regional Manager as well as the Host Organisation.

● Sets out AVI responsibilities and the responsibilities of the volunteer. These include a clear direction that the volunteer is not to undertake any paid work while on assignment as this would breach the Code of Conduct.

● States that the primary relationship is between the volunteer and the Host Organisation but that AVI must be included in any discussions about the ongoing viability of the assignment.

● That the volunteer is considered to be equivalent of an employee of the Host Organisation for day to day management purposes and the volunteer’s primary responsibility regarding workplace activities is therefore to the Host Organisation. However AVI is to be included in any discussion about major changes to the assignment.

● The volunteer is responsible for working towards the assignment objectives including regular communication with the Host Organisation. If the Host Organisation is dissatisfied with the volunteer, discussions with the volunteer and the Host Organisation are to occur. If they cannot be resolved, AVI will mediate. Ultimately, the Host Organisation is entitled to terminate the assignment of the volunteer.

● Sets out the insurance cover and other support that AVI provides for volunteers, including arrangements for payment of living allowances and airfares to the location as well as support when from AVI after returning home.

[11] The contents of the guide are generally consistent with the submissions of AVI as to the characterisation of the role of AVI in managing the AVID Program.

[12] The Applicant does not dispute that he performs work for The Ministry. The Applicant claims however that AVI also assumes an employer role and acts as the main employer “sub contracting” volunteers to the Host Organisation (in this case The Ministry).

[13] In support of this proposition, the Applicant submits that the following are responsibilities of AVI: selection of volunteers and the holding of interviews; recommending employment; providing strategic direction to the volunteer in his work; monitoring and evaluating the volunteers performance; providing the bulk (or all) of the remuneration for the employees work; reprimanding the volunteer for work behaviour and use of work resources and can terminate the volunteers’ employment. The Applicant submits further that these responsibilities occur with minimal or zero input from the Host Organisation.

[14] AVI dispute aspects of the characterisation of their role by the Applicant, in particular that they provide strategic direction to the Applicant, as AVI assert that this is primarily the role of The Ministry. AVI also dispute that the responsibilities of AVI occur with minimal or zero input from the Host Organisation.

Evidence related to the bullying claims

[15] The Applicant and AVI have submitted extensive material relevant to the circumstances that gave rise to the bullying claims. The key matters that arise from the material filed are as follows.

[16] A number of complaints about the behaviour of the Applicant were received by the AVI Country Manager, Ms. Faktaufon, not long after he commenced his assignment and over a relatively short period of time. Ms. Faktaufon raised these complaints with the Applicant, requesting him to take action to change behaviour in line with the Code of Conduct. Ms. Fakatufon raised these issues with the Applicant verbally over the phone and in person and in also writing. Ultimately, Ms Faktaufon on 1 October 2015 issued the Applicant with a first and final warning in regards to the various complaints made about his behaviour.

[17] The Applicant vigorously disputes the complaints made about him and feels that Ms. Faktaufon’s actions, (acting on what he considers to be unsubstantiated complaints, ultimately by way of a first and final warning) amounts to bullying behaviour. The alleged behaviour engaged in by the Applicant includes the following;

a. Inappropriate behaviour at a State dinner function on 12 July 2014.

[18] The Applicant attended a dinner function hosted by the President and First Lady of Kiribati in his capacity as a volunteer for the AVI. Ms Mary Flood, the AVI Regional Manager-Pacific was advised by a DFAT employee (Mr Mark Sayer) that the Deputy High Commissioner of New Zealand had reported a concern about the conduct of the Applicant at the dinner after the Applicant had had a conversation with the Deputy High Commissioner of New Zealand and a Ms. Magee. The concern was that the Applicant was intoxicated and made comments to the Deputy High Commissioner of New Zealand which he and his wife had found unacceptable. The Applicant disputes at some length the allegations that he was “drunk and disorderly” and its meaning in a legal context. He also disputes what he was alleged to have said to the High Commissioner and Ms. Magee. The Applicant claims that he said to Ms. Magee “Oh then may I kiss your hand madam” in response to her comments that she was a Manager of some responsibility. This particular behaviour was raised by Ms. Faktaufon with the Applicant in a face to face meeting as well as in the first and final warning letter. He was reminded of the need for his behaviour to be exemplary in a small community.

b. Inappropriateness of clothing and attire in public places.

[19] Ms. Faktaufon received a message from Ms. McLaren, the Peoples Lawyer for Kiribati advising her that the Applicant was walking around the streets with no shirt and wearing only bathing trunks and that another volunteer Mr. Meibusch had been counselling the Applicant in relation to excessive drinking and downloading movies using the workplace internet.

[20] Ms. Faktaufon counselled the Applicant in a face to face meeting about this on 10 September 2014. He was advised by her that while on occasion local males may dress without a shirt it was not appropriate for foreigners to do so. The Applicant does not dispute that he was not wearing a shirt but holds to the view that it is not reasonable to ask him to wear a shirt because the complaints came from expats and not “locals”; it is hot in Kiribati and not wearing a shirt helps the Applicant with his heat rash and that it is discriminatory for him not to be able to be shirtless in public.

c. Complaints from staff of Betio Lodge (the Kiribati Hotel) in relation of behaviour of the Applicant

[21] A local business made complaints about the Applicant using their internet service and not paying for the service. They also complained about the Applicant making comments about their internet service being slow and a waste of time. The Applicant claims that he reached an arrangement with the owner of the business that he could use the internet if he bought some coffee and/or food. The Applicant does not recall complaining about the internet but agreed that it is the sort of thing he might say. He disputes not paying for the internet service.

d. Inappropriate behaviour in the office

[22] There are two components to this. Firstly that the Applicant was sitting in his office, wearing shorts, with his legs up on the desk while an expatriate Nun sat nearby. The expatriate Nun in question, Sister Marella Rabgetz, provided a witness statement to the effect that she was not personally concerned by the Applicant’s feet being on the desk, for what she recalled was a period of limited duration.

[23] Secondly, that the Applicant was downloading movies from The Ministry internet and that this breached the Code of Conduct regarding professional standards. The Applicant did not appear to dispute that he was doing so though he does not directly address the accusation. The Applicant does state that The Ministry had authorised him to use the internet outside of work hours.

e. The “older man” incident

[24] The witness statements refer to an incident where the Applicant’s car came into contact with an “older man”. There is a dispute about who caused the collision. There is a claim that the Applicant almost ran over the older man’s foot. The Applicant claims in his witness statement that the older man, almost “ran over his car”. The Applicant claims that the man was aggressive and “waving his arms around” and that he was so intoxicated he could barely stand. A complaint was made after this incident that the Applicant used abusive and racist language towards the older man during the incident. The Applicant disputes the claims that he used racist and abusive language. He does agree he yelled at the man not to touch him. The Applicant claims that being reprimanded over this incident increases his risk to health and safety as it makes him less able to protect himself. There is also a claim made, related to this incident, that Ms. Faktaufon has created a health and safety risk by not informing the Applicant that the Betio Lodge security guard had been reprimanded for assisting the Applicant.

The law to be applied

[25] For the Applicant’s application to proceed, the behaviour must have taken place in a workplace that is conducted by a constitutionally-covered business. This arises from s.789FD of the FW Act, which is in the following terms:

“789FD When is a worker bullied at work?

(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally-covered business:

(i) an individual; or
(ii) a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.

(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:

(a) the person is:

(i) a constitutional corporation; or
(ii) the Commonwealth; or
(iii) a Commonwealth authority; or
(iv) a body corporate incorporated in a Territory; or

(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;

then the business or undertaking is a constitutionally-covered business.”

[26] The term “constitutional corporation” is defined in s.12 of the FW Act in the following terms:

“constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.”

[27] The Constitution, in effect, defines “constitutional corporations” as follows:

“Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth.” 2

The geographical application of the FW Act

[28] While it was not directly raised by either party, the geographical operation of the FW Act is relevant to this case. The relevant provisions are in Division 3 of Part 1-3 of the FW Act, in particular sections 31-35. It is not necessary to reproduce all of those provisions here but below are the provisions most relevant to the consideration in this case:

“31 Exclusion of persons etc. insufficiently connected with Australia

(1) A provision of this Act prescribed by the regulations does not apply to a person or entity in Australia prescribed by the regulations as a person to whom, or an entity to which, the provision does not apply.

Note 1: In this context, Australia includes the Territory of Christmas Island, the Territory of Cocos (Keeling) Islands and the coastal sea (see section 15B and paragraph 17(a) of the Acts Interpretation Act 1901).

Note 2: The regulations may prescribe the person or entity by reference to a class (see subsection 13(3) of the Legislative Instruments Act 2003).

(2) Before the Governor-General makes regulations for the purposes of subsection (1) prescribing either or both of the following:

(a) a provision of this Act that is not to apply to a person or entity;

(b) a person to whom, or an entity to which, a provision of this Act is not to apply;

the Minister must be satisfied that the provision should not apply to the person or entity in Australia because there is not a sufficient connection between the person or entity and Australia.

…

34 Extension of this Act beyond the exclusive economic zone and the continental shelf

Extensions prescribed by regulations

(3) Without limiting subsection (1), if the regulations prescribe further extensions of this Act, or specified provisions of this Act, in relation to all or part of the area outside the outer limits of the exclusive economic zone and the continental shelf, then this Act, or the specified provisions, extend accordingly to:

(a) any Australian employer; and

(b) any Australian-based employee.

(3A) For the purposes of extending this Act in accordance with subsection (3):

(a) any reference in a provision of this Act to an employer is taken to include a reference to:

(i) an Australian employer; and

(ii) an employer of an Australian-based employee; and

(b) any reference in a provision of this Act to an employee is taken to include a reference to:

(i) an employee of an Australian employer; and

(ii) an Australian-based employee.

…

35 Meanings of Australian employer and Australian-based employee

(1) An Australian employer is an employer that:

(a) is a trading corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or

(b) is a financial corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or

(c) is the Commonwealth; or

(d) is a Commonwealth authority; or

(e) is a body corporate incorporated in a Territory; or

(f) carries on in Australia, in the exclusive economic zone or in the waters above the continental shelf an activity (whether of a commercial, governmental or other nature), and whose central management and control is in Australia; or

(g) is prescribed by the regulations.

(2) An Australian-based employee is an employee:

(a) whose primary place of work is in Australia; or

(b) who is employed by an Australian employer (whether the employee is located in Australia or elsewhere); or

(c) who is prescribed by the regulations.

(3) However, paragraph (2)(b) does not apply to an employee who is engaged outside Australia and the external Territories to perform duties outside Australia and the external Territories.”

Consideration on jurisdiction.

Is the Applicant at work in a constitutionally covered business?

[29] There is no doubt that the alleged bullying behaviour occurred while the Applicant was at work. The question is whether the behaviour occurred while the Applicant was at work in a constitutionally covered business. This in turn requires a consideration of what business the Applicant was working in as a volunteer.

[30] The evidence above clearly demonstrates that the Applicant is at work, as a volunteer, in the business of The Ministry. It is The Ministry that is the direct beneficiary of the work that he performs as a Sanitation Engineer, not the AVID Program or AVI. It is The Ministry that has accepted the nomination from AVI for the Applicant to work for them. He works the hours determined by The Ministry, and takes day to day direction from them. The Host Organisation has the ultimate right to end the relationship with the volunteer under the terms of the program.

[31] I agree with the Applicant that the role of the AVI in respect to the Applicant remains significant while the Applicant is working in Kirabti. However, the role is restricted to the types of matters canvassed above, such as for example, ensuring that the Code of Conduct is followed. The role of AVI does not extend to dealing with what the Applicant does on a day to day basis. While AVI continues, particularly through the intervention of the Country Manager, to exert or seek to exert influence over the behaviour of the Applicant this does not, when the totality of the relationship is considered, mean that the Applicant is at work as a volunteer for AVI. He is working as a volunteer for The Ministry.

[32] In summary, it is clear from the material above that the Applicant in this matter is a volunteer for the AVID Program which in turn is managed by AVI. As a volunteer for the AVID Program the Applicant has been placed with a Host Organisation, The Ministry. It is for The Ministry that the Applicant works as a volunteer.

[33] The Ministry is located in Kiribati and clearly does not fall within the scope of s.789FD(3)(a)(ii),(iii),(iv) or (b). Nor does The Ministry fall within s789FD(3)(a)(i). The Ministry is clearly not a corporation formed within the limits of the Commonwealth.

[34] As the Applicant was not at work in a constitutionally covered business when the alleged behaviour occurred, the application falls outside the jurisdiction of the bullying provisions of the FW Act.

Does the application fall within the geographical application of the FW Act

[35] The Applicant is clearly working as a volunteer in Kiribati. The FW Act sets limits to its geographical application. This gives rise to a further jurisdictional consideration as to the scope of the FW Act to cover the Applicant while working as a volunteer in Kiribati.

[36] I have already set out some of the provisions of the FW Act relevant to this consideration above.

[37] Section 31 provides that the Act applies generally in Australia, the coastal sea and the territories of Christmas Island and the Cocos (Keeling) Islands. 3 It is clear that Kiribati is outside these geographic limits.

[38] While section 31 provides for the general application of the FW Act, section 34(3) of the FW Act provides for regulations to be made to allow for the extension or modification of the application of the FW Act beyond the Exclusive Economic Zone and the continental shelf in relation to Australian employers and Australian based employees. 4 A relevant regulation has been made, regulation 1.15F of the Fair Work Regulations 2009 (the Regulations) which provides for the extension of the application of the FW Act beyond the exclusive economic zone and the continental shelf to an “Australian based employer” and “Australian based employees”.

[39] However, the extension of the geographic reach of the FW Act brought about by regulation 1.15F is restricted to various parts of the FW Act, specifically, various subsections of Part 2 and Part 3 of the FW Act. The anti-bullying provisions of the Act are found in Part 6 of the Act and it is clear that regulation 1.15F does not allow for their extension. Thus it is clear that these provisions of the FW Act would not extend to the Applicant in Kiribati.

[40] Further, for any of the provisions of the FW Act to extend to the Applicant while he is working as a volunteer in Kiribati, he would need to be an Australian based employee within the meaning of s. 35 of the Act.

[41] Section 35(2)(a) provides that an Australian based employee is an employee whose primary place of work is in Australia. It is clear the Applicant’s primary place of work is not in Australia.

[42] Section 35(2)(b) provides that an Australian based employee is an employee who is employed by an Australian employer (whether the employee is located in Australia or elsewhere). However, 35(3) provides that paragraph (2)(b) does not apply to an employee who is engaged outside Australia and the external territories to perform duties outside Australia and the External Territories.

[43] The construction of section 35(3) of the FW Act was considered, albeit briefly, by the Full Court of the Federal Court of Australia in Cohen v iSOFT Group Pty. Limited 5. In that decision, the Full Court affirmed Justice Flicks earlier decision where it was held that the applicant in that matter was not an Australian based employee within the meaning of the FW Act. The Full Bench found that while there was evidence that the applicant performed some duties from time to time in Australia, “...those duties, whatever they were, were not sufficiently significant to displace the ordinary and natural construction of s35(3), that excludes from the operation of the Act overseas based employees who might perform no more than an insubstantial part of their duties in Australia.”6

[44] In my view, the circumstances of the Applicant in this matter fall squarely within this exclusion. He is working as a volunteer as a Sanitation Engineer in Kiribati. To the extent that he performs work within Australia as part of the AVID Program, through attending pre departure briefings for example, this is no more than an insubstantial part of his duties. For this reason the Applicant, while working as a volunteer in Kiribati is beyond the reach of the FW Act in its totality.

[45] It is clear from the foregoing consideration that there is no jurisdiction for the application to proceed.

Did the alleged behaviour create a risk to health and safety?

[46] In a recent judgement Ms SB 7, Commissioner Hampton considered this component of the legislation. :

“[43] Unreasonable behaviour’ should be considered to be behaviour that a reasonable person, having regard to the circumstances, may consider to be unreasonable. That is, the assessment of the behaviour is an objective test having regard to all the relevant circumstances applying at the time.

[44] The unreasonable behaviour must also create a risk to health and safety. Therefore there must be a causal link between the behaviour and the risk to health and safety. Cases on causation in other contexts suggest that the behaviour does not have to be the only cause of the risk, provided that it was a substantial cause of the risk viewed in a common sense and practical way. This would seem to be equally applicable here.

[45] A risk to health and safety means the possibility of danger to health and safety, and is not confined to actual danger to health and safety. The ordinary meaning of ‘risk’ is exposure to the chance of injury or loss. In the sense used in this provision, the risk must also be real and not simply conceptual.” 8[footnotes omitted]

[47] Having considered the material filed, I do not think that the behaviour of Ms. Faktaufon viewed objectively and having regard to the relevant circumstances applying at the time could be considered unreasonable. I deal with this further below in a consideration of whether the behaviour is reasonable management action.

[48] Irrespective of whether the action was reasonable, I am not satisfied that the behaviour created a risk to health and safety. The Applicant claims that the repeated unreasonable and false claims of Ms. Faktaufon have lead to “the creation of a health hazard”. However, there is no particularisation by the Applicant as to what that health hazard is.

[49] The Applicant claimed that being reprimanded unreasonably increases his health and safety risk. This was linked, in particular to the “older man incident” in as much as the Applicant claimed that by being prevented by Ms. Faktaufon from responding to an “aggressive male” he was being put at risk. This is a difficult proposition to accept for two reasons.

[50] Firstly, the Applicant claimed on numerous occasions that the “older man” was so intoxicated that he could barely stand up. It would seem unlikely that the “older man” represented a risk to the Applicant’s health and safety. The claim of the Applicant that the “older man”, a pedestrian, had almost “runover” his car is foolish. In any event, the Applicant had been reprimanded for the manner in which he spoke to the “older man” not for defending himself. There could hardly be said to be a causal link between the reprimanding from Ms. Faktaufon and the danger, if indeed there was one, from the intoxicated “older man”.

[51] Similarly the claim that the Applicant’s health and safety risk was increased by Ms. Faktaufon not informing him that Betio Lodge had reprimanded the security guard for helping him lacks the same causal link.

[52] Overall, having considered the material filed, I do not think that the behaviour of Ms. Faktaufon has created a risk to health and safety.

Is the alleged behaviour reasonable management action carried out in a reasonable manner?

[53] Again, the recent decision of Commissioner Hampton provides a framework for considering this aspect of the anti-bullying provision:

“[46] Behaviour will not be considered to be bullying conduct if it is reasonable management action carried out in a reasonable manner.

[47] Section 789FD(2) of the FW Act is not so much an “exclusion” but a qualification which reinforces that bullying conduct must of itself be unreasonable. It also emphasises the right of management to take reasonable management action in the workplace. In its application, the provision comprises three elements:

• the behaviour (being relied upon as bullying conduct) must be management action;



• it must be reasonable for the management action to have been taken; and



• the management action must have been carried out in a manner that is reasonable.

[48] The Explanatory Memorandum refers to management decision and decisions about how work is to be carried out. This suggests that the term may be required to be given a wide meaning under s.789FD(2) and that the Legislature intended everyday actions to effectively direct and control the way work is carried out to be covered by the exclusion.

[49] Determining whether management action is reasonable requires an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time. Without limiting that assessment, the considerations might include:

• the circumstances that led to and created the need for the management action to be taken;



• the circumstances while the management action was being taken; and



• the consequences that flowed from the management action.

[50] The specific ‘attributes and circumstances’ of the situation including the emotional state and psychological health of the worker involved may also be relevant.

[51] The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’. In general terms this is likely to mean that:

• management actions do not need to be perfect or ideal to be considered reasonable;



• a course of action may still be ‘reasonable action’ even if particular steps are not;



• to be considered reasonable, the action must also be lawful and not be ‘irrational, absurd or ridiculous’;



• any ‘unreasonableness’ must arise from the actual management action in question, rather than the applicant’s perception of it; and



• consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances.

[52] For the circumstances in s.789FD(2) of the FW Act to apply, the management action must also be carried out in a ‘reasonable manner’. Consistent with the approach above, what is ‘reasonable’ is a question of fact and the test is an objective one.

[53] Whether the management action was taken in a reasonable manner may depend on the action, the facts and circumstances giving rise to the requirement for action, the way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters.” 9[footnotes omitted]

[54] When one looks objectively at the facts in this matter, it is apparent that a number of complaints have been made about the Applicant. There are a number of sources of these complaints including: The Deputy High Commissioner for New Zealand; Ms. Magee; Ms. McLaren; the staff of Betio Lodge and other expatriates working or volunteering in Kiribati. Faced with a range of complaints, from a range of sources, Ms. Faktaufon gave evidence that she has made further enquiries in an attempt to establish the veracity of the claims made. Of course it is important that allegations put to the Applicant are soundly based and reasonable efforts should be made to establish the veracity of claims made rather than simply taking them at face value. The concerns expressed about behaviour have been referenced back to the Code of Conduct. The content of the Code of Conduct was clearly known to the Applicant, the signed copy of his declaration of acceptance of the Code of Conduct is in evidence. While the efforts of Ms. Faktaufon to establish the veracity of the claims are not perfect, overall the approach she has taken appears to be reasonable.

[55] As to the particular matters canvassed above, they fall within what could be considered reasonable management action. Even on the Applicant’s own evidence, his behaviour at the state function gives cause for concern. The complaints about his behaviour appeared to have emanated from both the New Zealand High Commissioner and Ms. Magee. It does not seem unreasonable that he was counselled and or warned about this behaviour.

[56] As to wearing or not wearing a shirt in public places, the Applicant had been told by AVI that the country he was working in prefers conservative dress amongst those visiting the country and this includes men wearing a shirt in the street. Ms. Faktaufon in her role as Country Manager is simply seeking compliance with this. I understand that the Applicant feels that this aspect of the Kiribati culture is unreasonable or in the alternative, that the cultural norm has been misapplied by Ms. Faktaufon. However, Ms. Faktaufon has clearly articulated her interpretation of the appropriate dress code to the Applicant and she has put that to the Applicant in a reasonable manner.

[57] Ms. Faktaufon gave evidence that she made enquiries of the owners of Betio Lodge about the complaints that were made in respect to the Applicant, in particular the alleged non payment for internet services and the complaints about the interaction. It was not unreasonable for her to act on those complaints and warn the Applicant.

[58] The complaint about the “feet on the desk” is the one matter I view differently. The complainant in that matter seemed to be particularly concerned about the effect on the expatriate nun who was in the office at the time. However, the nun mentioned, Sister Marella Rebgetz, who is also an engineer, made clear in a statement she supplied that “I did not have an issue with Mircea engaging in this behaviour for a limited time”. I am of the view the pursuit of the “feet on the desk” in the office is a trivial issue. Were this the only behavioural issue its pursuit by Ms.Faktaufon would not be reasonable.

[59] There is insufficient information on the claims of downloading of movies from the Ministry to express a concluded view on that matter.

[60] Overall, it is clear that the Applicant has an expectation of AVI and particularly of Ms. Faktaufon that she undertake an extraordinarily detailed level of investigation of the various complaints made about the Applicant. The expectation of the Applicant that she do so is unrealistic. Her failure to meet the Applicant’s expectations of the detail of the investigation does not render her behaviour unreasonable.

[61] The Applicant certainly should have been made aware of the various allegations made and given an opportunity to respond to them. It is apparent that, perhaps with one exception, that opportunity was given.

[62] There is a grievance process under the AVI guidebook. The grievance process was halted by AVI when this application was lodged. In my view, the grievance process is the proper place for the airing of concerns by the Applicant about whether the claims of his conduct are inaccurate or unfounded.

[63] Considering all of the material before me, I do not share the view of the Applicant that the manner in which Ms. Faktaufon has gone about counselling and warning the Applicant is unreasonable and I do not consider that her behaviour has created a risk to health and safety. The correspondence from Ms. Faktaufon to the Applicant is in measured and reasonable terms. There is no evidence that the manner in which Ms. Faktaufon conveyed her concerns to the Applicant in face to face meetings or over the phone was unreasonable. Considered overall, I consider the action taken by Ms. Faktaufon to reasonable management action carried out in a reasonable manner.

Conclusion:

[64] This application lacks jurisdiction as the Applicant is not working as a volunteer for a constitutional corporation. Further, as the Applicant works as a volunteer in Kiribati, the Applicant’s place of work is outside the geographic reach of the FW Act.

[65] In any case, I am not satisfied that there is unreasonable behaviour by Ms. Faktaufon or that the behaviour created a risk to health and safety. When considered overall, the action taken by Ms. Faktaufon was reasonable management action undertaken in a reasonable manner.

[66] The application for a bullying order is dismissed.

COMMISSIONER

 1   See Form F73 - Response from an employer/principal to an application for an order to stop bullying, files 10 November 2014

 2   Australian Constitution s 51(xx).

 3   See also the Explanatory Memorandum to the Fair Work Bill 2008, item 154

 4   Note: Australian employers and Australian based employees are defined in clause 35

 5 [2013] FCAFC 49

 6   Cohen v iSOFT Group Pty Limited, [2013] FCAFC 49, [54]

 7   [2014] FWC 2104

 8   Ms SB [2014] FWC 2104, [43] - [45]

 9   Ms SB [2014] FWC 2104, [46] - [53]

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