Mr Chris Lewis
[2025] FWC 29
•7 JANUARY 2025
| [2025] FWC 29 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Mr Chris Lewis
(AB2024/418)
| COMMISSIONER CONNOLLY | MELBOURNE, 7 JANUARY 2025 |
Application for an FWC order to stop bullying – applicant no longer an employee – no risk of bullying continuing – no instances of repeated, unreasonable behaviour found – alleged bullying found to be reasonable management action, carried out in a reasonable manner – application dismissed.
Mr Chris Lewis has made an application to the Fair Work Commission (Commission) for an order to stop bullying at work under s.789FC of the Fair Work Act 2009 (the Act). The application was made seeking stop bullying orders that apply to Spotless Facility Services Pty Ltd (Spotless or Respondent Employer) and its employees Mr Dale Gruber and Mr Robert Mosterd.
In support of his claims, Mr Lewis argues that he has been denied opportunities to work additional shifts and raised complaints about both him and others being denied shifts. He states he has made repeated requests for fair and transparent rostering and shift allocations and that his complaints and queries have been overwhelming ignored, not acted upon or not responded to. He submits that because he has complained he has been stood down from work and subjected to disciplinary action. He asserts that this conduct by both Mr Guber and Mr Mosterd on behalf of Spotless amount to conduct that meets the definition of bullying for the purposes of the Act.
Spotless do not accept that Mr Lewis has been subjected to bullying. Further, and in the alternative, they submit that the bullying he has alleged can be accurately described as reasonable management action, carried out in a reasonable manner. On this basis, they submit Mr Lewis’s application should be dismissed.
This decision considers Mr Lewis’s application for a stop bullying order. Specifically, it considers whether any of the actions Mr Lewis alleges he has been subjected too can be considered ‘bullying’ as defined in the Act.
Legislation
Section 789FF of the Act specifies when the Commission may make orders to stop bullying as follows:
789FF FWC may make orders to stop bullying
(1) If:
(a) a worker has made an application under section 789FC; and
(b) the FWC is satisfied that:
(i) the worker has been bullied at work by an individual or a group of individuals; and
(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;
then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.
It is not in contest that Mr Lewis is a worker who has made an application under s.789FC. The keys issues in this case are whether Mr Lewis has been bullied at work and whether there is a risk he will be continued to be bullied at work.
Section 789FD of the Act specifies when a worker is bullied at work as follow:
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.
It is accepted that Spotless is a constitutionally covered business and that the bullying Mr Lewis is alleged to have been subjected to occurred at work.
It is not accepted that Mr Lewis has been bullied at work within the meaning of the Act. Nor is it accepted that the actions of Spotless and its employees in dealing with Mr Lewis is not reasonable management action carried out in a reasonable manner.
It will not be the case all actions or behaviour Mr Lewis disagrees with, or perceives to be to his detriment, or that cause him offense will be considered bullying under the FW Act.
To be bullying, the actions Mr Lewis has been subjected to must be repeated and unreasonable and create a risk to health and safety.
The action must also not be reasonable management action caried out in a reasonable manner.
These concepts have been considered in previous decisions of the Commission.
Repeated behaviour must be behaviour of a persistent nature, although it can be a range of different behaviours over a period of time.[1]
In Amie Mac v Bank of Queensland Limited & Others, his Honour Justice Hatcher (Vice President as he was then) identified the test of determining what is unreasonable behaviour is an objective test.
The test is to identify behaviour that a reasonable person, having regard to all the relevant circumstances at the time, would consider unreasonable. His Honour went on to identify the sorts of behaviours that may be encompassed within this broad definition of unreasonable behaviour may include - “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”.[2]
The behaviour must have a causal link to endangering health and safety. It is not necessary, however, for an Applicant to demonstrate actual illness or injury as result of the behaviour. Evidence of a real risk to health and safety is enough.[3]
It is accepted that s.789FD(2) provides a qualification on what may be considered bullying by the Commission.[4] The qualification recognises that management have a right to give reasonable directions for the running of the business, provided they are provided in a reasonable way. As Commissioner Allison identified recently in Inderjeet Kaur following Deputy President Hampton (Commissioner as he was then) in Ms SB[5] - “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.”[6]
In Ms SB the Deputy President further commented in relation to reasonable management action carried out in a reasonable manner as follows:
“[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.” (footnotes omitted)
I have applied these provisions and the principles in the authorities above to the circumstances of this case in my consideration below.
Relevant Background
Mr Lewis commenced work as a part-time gym attendant for Spotless on 12 April 2017. His initial engagement was for 15.75 hours per week. At the time his bullying application was lodged, his minimum weekly engagement had increased to 34.75 hours per week.
Mr Lewis’s place of work is the Albury Wodonga Military Area. The area consists of sites serviced by Spotless through its defence contracts and includes sub-sites and facilities, at Latchford and North Bandiana which have pool and gym facilities used by defence personnel.
In his work, Mr Lewis reports directly to the Sport and Recreation Coordinator, a position currently held by Ms Zorica Stanic. Ms Stanic is assisted in her role by the Sport and Recreation Leading Hand who is principally responsible for rostering and allocating shifts to gym attendants. Mr Dale Gruber currently holds this Leading Hand position, reporting to Ms Stanic. Mr Robert Mosterd currently holds the position of Estate Maintenance and Operations Services (EMOS) Operations Manager. Ms Stanic and Mr Gruber report to Mr Mosterd.
Mr Lewis’s principal place of work was the North Bandiana gym. From 2017 up to 2021, he generally worked his minimum contracted hours at North Bandiana and would perform additional hours either there or at the Latchford pool facility. Prior to 2021, Mr Lewis made only informal complaints about shift allocations being unfair. He submits that he was aware of other employees who made more substantive complaints about unfair rostering and being subjected to bullying behaviour by Mr Gruber, including withholding work opportunities and physical threats.
Mr Lewis says that in 2021 and 2022 he made several complaints about Mr Gruber to Mr Mosterd. These included that he was being unfairly denied shifts, wage concerns, and that he felt threatened by Mr Gruber. He says that Mr Mosterd did nothing to investigate these complaints or failed to respond to him. And further, that when he advised Mr Gruber, he was going to complain to Mr Mosterd he was encouraged to “go ahead” as Mr Mosterd was his “mate”.
Following this response, Mr Lewis says he got on with minding his own business. He believed making complaints at work about “bullying or other matters” was largely futile. Moreover, that he had reservations about being threatened by Mr Gruber and what this might mean for his health and safety considering his understanding of Mr Gruber’s alleged threats to use firearms.
In early March 2023, Mr Lewis says he indicated he was available to work a Saturday shift that had not been advertised and was told it was already allocated to another member of staff by Mr Gruber.
In November 2023, he says he became aware that a staff member with the least hours of work had been unfairly denied an opportunity to work. He perceived this was yet another example of unfair treatment and bullying by Mr Gruber and resolved to do something about it.
Seeking to address these concerns, he lodged a s.739 dispute application seeking to have his rostering and shift allocation concerns addressed through the Commission. While not determined by the Commission, an outcome of this application was that the Respondent would advertise additional available shifts to all staff to express an interest in, which had not previously been occurring. A further outcome was that staff with concerns about how additional shifts were being allocated could raise them with Ms Stanic and Mr Mosterd.
Mr Lewis acknowledges these improvements. However, he remained concerned that staff did not have visibility of what additional shifts were being allocated and worked by others. As a result, staff members could not determine if the allocations were “fair”. He was also concerned staff were being unfairly excluded from opportunities to work at the Latchford ‘pool’ facility.
He maintains that:
“Mr Gruber further bullied myself from late February 2024 to late May 2024 by denying gym attendants an opportunity to work at Latchford with another lifeguard by advertising many shifts for life guard only.[7]
Despite his concerns, Mr Lewis continued to press for improvements in transparency and shift opportunities. He did so by variously contacting Mr Gruber, Ms Stanic and Mr Mosterd. In early March 2024, he also informed Mr Mosterd he had concerns for his health and safety because of Mr Gruber and that he was making a Workcover claim due to the ongoing ‘bullying’ he was being subjected to at work. Eventually, it was clarified that gym attendants were not to be denied opportunities to work at Latchford and that shifts worked were to be reported to all staff members by means of a “Group Chat”. At the same time, Mr Mosterd took steps to ensure Mr Lewis and Mr Gruber would not come into contact at work.
At the end of March 2024, Mr Gruber took steps to delete the “Group Chat” and no longer report additional shifts worked, and by whom, to all staff. This was because he had received complaints from staff members seeking to have their privacy protected.
On 27 March 2024, Mr Gruber made an application for a stop bullying order to the FWC alleging he was being subjected to bullying by Mr Lewis. Mr Gruber’s application was closed following actions taken by Spotless to remove Mr Gruber and Mr Lewis from contact and other steps to ensure Mr Gruber was not at risk of future alleged bullying. This included directions for Mr Lewis not to contact Mr Gruber or discuss Mr Gruber with other members of staff.
Mr Lewis believes Mr Gruber lied in making his bullying application and in related representations to the Commission. He claims this to be a further instance of bullying against him.
In May 2024, Mr Lewis made a further request of Mr Mosterd for Downer safety staff to contact him as he felt he was continuing to be bullied by management. He also wrote to Mr Edwina Miliotis from Downer’s personal injury team and requested an investigation into the bullying he believed he was being subjected to and the threat to his personal health safety posed by Mr Gruber.[8]
Mr Lewis’s concerns were also raised directly with Mr Aidan Blackman, Spotless Human Resources Manager. He was also advised of Spotless’s internal complaints procedure and provided with contact details for Mr Nick Atchison, a Spotless HR Representative outside of EMOS in response to his concerns with local management independence.
Also in May 2024, Mr Lewis received a formal letter from Downer advising him that he was not to contact Mr Gruber or engage in talking about Mr Gruber to other members of staff or customers. This correspondence also informed Mr Lewis that failing to follow this direction could result in disciplinary action being taken against him, including termination. Mr Lewis identifies this as a further instance of bullying.
On 6 June 2024, Mr Lewis filed this bullying application with the FWC alleging that the actions of Mr Gruber, Mr Mosterd, Ms Stanic, Mr Adian Blackman, and by extension Spotless, amounted to bullying by denying him a fair allocation of shits and failing to address, investigate or otherwise act in response to his complaints.
The Commission convened a series of conciliation conferences following the application. None were successful in addressing the issues of concern and I issued directions for the matter to be determined by evidentiary hearing. Prior to directions being finalised, Mr Lewis clarified his allegations of bullying to Mr Gruber, Mr Mosterd and, by extension, Spotless. Ms Stanic and Mr Blackman were removed as persons named in the application by the Applicant’s request.
Mr Lewis continued to perform work for the Respondent as directed. In August 2024 he was directed not to “stretch” on defence equipment by Ms Stanic which he contests and believes to be a further instance of bullying. On 13 September 2024, he was suspended from work with pay to allow for an investigation into allegations of misconduct against him following an incident on 12 September 2024. Mr Lewis disputes these allegations and identifies his suspension to be yet another instance of bullying.
Spotless’s position is that Mr Lewis has not been bullied at work, and nor is he at risk of being subjected to further bullying. They accept that some of the conduct alleged by Mr Lewis occurred but submit that all conceded conduct was reasonable management action, carried out in a reasonable way. It is their position that Mr Lewis’ application should be dismissed.
On 15 November 2024, after the hearing had concluded, Spotless advised my Chambers that Mr Lewis’ employment with the Respondent had ended by way of termination on 13 November 2024. Mr Lewis similarly advised his intention to dispute this decision, filing a general protections application that is presently before the Commission.
As Mr Lewis is no longer employed by the Respondent, I cannot make a finding that he is at risk of bullying at work and his application for a stop bullying order must be dismissed.
Despite this conclusion, given Mr Lewis’ employment came to an end after the hearing, for completeness, I have considered all the evidence in this matter. For the reasons set out below, even if I could be satisfied of the potential for Mr Lewis to be at risk of bullying in the workplace, I would not make a stop bullying order.
This is because, as set out below, I am not satisfied the conduct alleged to have occurred constitutes bullying within the meaning of the FW Act or was not reasonable management action, carried out in a reasonable way.
Has Mr Lewis been bullied at work?
Mr Lewis has presented a significant body of material dating back to before 2018 in support of his application. In summary, his argument is that the following conduct of Mr Gruber, Mr Mosterd and Spotless amounts to bullying:
Denying him shifts through unfair and non-transparent rostering practices;
Lies told by Mr Gruber, with the support of Spotless, to the FWC;
Spotless’s failure to respond or investigate complaints and safety concerns he raised;
Threats by Mr Gruber;
Threats of disciplinary action and directions not to use gym equipment;
Suspension from employment.
Together, the above amounts to the bullying complaints alleged by Mr Lewis. To the extent necessary, I have considered the evidence and submissions of each of these complaints below.
Bullying Complaint – 1
Mr Lewis argues that by being denied shifts, denied an opportunity to be offered shifts, and denied visibility of the additional shifts performed by other members of staff he has been subjected to bullying. Spotless argues that the allocation of shifts and its response to Mr Lewis’s request for shifts does not constitute bullying, but rather is reasonable management action carried out in a reasonable way.
The Applicant’s case
The evidence Mr Lewis presents is that in the years since 2018 he has missed out on shifts, despite being available to work. He also contends that he, and other gym attendants, have been denied opportunities to work additional hours at Latchford because they have not been advertised or made available. He identifies multiple occasions where this has occurred, including 22 occasions between 9 February and 31 May this year.[9]
He further contends that in not providing him and others the opportunity to work additional shifts Spotless has breached its policies and commitments to be fair and transparent with the allocation of work. Mr Lewis makes a point that he is most concerned about co-workers with the lowest earnings not being provided an opportunity to work additional shifts. He asserts this is the case and that Spotless has acted contrary to its policy and commitments by allowing, or not preventing, Mr Gruber from allocating additional shifts to himself, those he favoured or those who did not make problems for him.
Mr Lewis’s evidence is that he has consistently and repeatedly raised concerns about not being provided opportunities to work additional shifts. That he has sought a fair and transparent rostering and shift allocation system. He accepts there have been some improvements to allocations and opportunities for gym attendants to work additional shifts because of his complaints. He maintains however, that steps taken by Mr Gruber to stop making staff aware of additional hours available and worked, by deleting the “group chat” on grounds of privacy concerns undermines the improvements. His position is that by being repeatedly denied opportunities for additional shifts and denied a fair and transparent shift allocation system, despites his repeated requests, he has been subjected to bullying.
Mr Lewis’s position is supported by the statutory declaration of Mr Darell Lindner, who worked for the Respondent between 2014 and 2018, attesting to similar experiences of unfair rostering at the hands of Mr Gruber and Spotless management.[10]
The Respondent’s case
Spotless do not contest that Mr Lewis has made requests and complaints on behalf of himself and others with respect to its rostering and shift allocation systems. They accept not every one of these have been responded to or addressed in detail. Ultimately however, they maintain that the action taken by the Respondent in response to the rostering issues and complaints, is, and has been, reasonable management action carried out in a reasonable way. Their position is that it is uncontroversial that the management action of allocating shifts, directing and controlling how work is carried out is management action within the meaning of the FW Act.
They submit the question for the Commission with respect of Mr Lewis’ complaint of bullying is whether the manner in Spotless has allocated shifts and responded to Mr Lewis’ concerns is reasonable.
Mr Gruber, Mr Mosterd and Ms Stanic gave evidence on behalf of the Respondent. Consistently, their evidence is that the Respondent has a process and policy for determining how it allocates additional or vacant shifts required to be worked.[11] Mr Gruber maintains he has consistently applied the criteria to the allocation of additional shifts. Ms Stanic and Mr Mosterd maintain, as Mr Gruber’s managers, they are satisfied this has been the case. And further, that they have independently considered and assessed Mr Lewis’s complaints against the criteria and been satisfied it has been reasonably applied in a reasonable way.[12]
In further support of this position, the Respondent’s evidence is that Mr Lewis has consistently been provided, and taken, opportunities to work additional shifts. That when compared to other gym attendants at the facilities he was the highest earner of overtime and second highest earner of shift penalties for the period of 14 February 2022 to 25 February 2024.[13]
The Respondent rejects Mr Lewis’s assertions that he has being denied shifts at the Latchford facility and that the Respondent has lied to the Commission. Its position is that it is contractually required to ensure there is at least one trained lifeguard rostered on at the Latchford pool. That its operational preference is to prioritises gym attendants who are qualified lifeguards for both rostered and non-rostered work at Latchford. That it has offered Mr Lewis an opportunity to be trained as a lifeguard, but he has refused to take up these offers and that Mr Lewis has been provided opportunities to work at Latchford when it has been possible, consistent with its criteria for the allocation of additional shifts.
The Respondent also rejects Mr Lewis’s assertions that it is not been transparent about the allocation of additional shifts. Their position is that it has no obligations to report on the hours worked to, and by, every employee. Furthermore, that it has obligations to employees other than Mr Lewis with respect to their privacy concerns that is has acted on. Similarly, the Respondent rejects the evidence of Mr Lindner that he was bullied by Mr Gruber and subjected to unfair rostering practices. They maintain no such finding of bullying was made by either Spotless or the FWC and further that Mr Lindner’s concerns about rostering related to a failure to meet contractual entitlements that were addressed.
Consideration
I am satisfied that Mr Lewis has made numerous complaints and sought redress to concerns he had about the allocation of additional shifts to both him and co-workers. I am also satisfied and accept that, from his perspective, he was justified to make these complaints and concerns. I respect his concerns for co-workers he thought were being disadvantaged and the efforts he made to raise concerns on their behalf.
The evidence in this case is that Mr Lewis raised legitimate concerns about rostering and shift allocations. He has done so persistently and repeatedly for some time. On occasion, he also done so in a manner and tone directed at Mr Gruber that led Mr Gruber to make an application for a stop bullying order to the Commission.
While I accept the legitimacy of Mr Lewis’s concerns and his desire to ensure a fair and transparent allocation of work to himself and others, it does not follow that I accept he has been subjected to bullying. The evidence does not support this conclusion.
The Respondent’s position is that it has a process and criteria for the allocation of shifts. That it has consistently applied this process and that the evidence of Mr Lewis’s earnings and overtime for the relevant period do not support a conclusion he has been unfairly treated, targeted or disadvantaged. Furthermore, that Spotless has received, accepted and endeavoured to address Mr Lewis’s concerns.
The evidence shows there are some inconsistencies in the Respondent’s approach to Mr Lewis’s concerns and complaints. However, when I consider all the evidence in this case in the context of the circumstances and knowledge of those involved at the time’,[14] I find nothing unreasonable in its response. Nothing unreasonable in the way with which it has either gone about the allocation of additional shifts or considered and responded to Mr Lewis’s complaints and concerns.
It is well established that the allocation of work and shifts is management action. It is also well established that management actions do not need to be perfect or ideal to be considered reasonable. In addition, whether management action is reasonable is an objective test, considering all the relevant circumstances – that is, management action may still be reasonable even if an individual perceives it to be unfair.[15]
Considered in this light, I am not satisfied Mr Lewis’s complaints of unfair rostering practices amount to bullying conduct.
Bullying Complaint – 2
The Applicant’s case
Mr Lewis alleges that he has been subjected to further bullying conduct by Mr Gruber by virtue of the lies both Mr Gruber and Spotless have told the Commission. Mr Lewis asserts Mr Gruber has lied to the Commission by making complaints of bullying against him, by claiming gym attendants must be lifeguards to work at the Latchford gym; by claiming he allocated shifts fairly; and by denying threatening to harm people who make complaints about him.
Mr Lindner provided evidence to the Commission in support of Mr Lewis’s position that he heard Mr Gruber threatening to harm others.
The Respondent’s case
Spotless rejects Mr Lewis’s assertions. Their position is that the company has consistently maintained and communicated its position that the allocation of shifts and rostering was done consistent with its pre-determined policy and criteria. That this included a requirement for one trained lifeguard at Latchford and the consideration of cost, availability, fatigue management and other factors in accordance with its shift allocation systems.[16] They maintain that the fact Mr Lewis does not agree with its position or has misunderstood how it has been communicated does not constitute either lies to the Commission or an act of bullying.
Regarding the allegations that Mr Gruber made threats of harm to co-workers with a firearm in 2018, Spotless’s position is that it has not received a complaint of these occurring from any other member of staff, including Mr Lindner. The only person to have raised these concerns is Mr Lewis, who admits he was not present at the time the alleged threats were made and did not formally raise his concerns until February 2024. Spotless further state that they have conducted independent investigations into these allegations and identified nothing to support them.[17]
Consideration
There is no reliable evidence before me that either Spotless or Mr Gruber has lied to the Commission. Mr Gruber made a bullying application to the Commission, claiming he was being subjected to bullying by Mr Lewis in March 2024. Spotless responded to this complaint by taking management action to limit Mr Lewis and Mr Gruber’s contact, removing the risk of any further potential bullying occurring. No finding of bullying was made against Mr Lewis. The evidence presented in this case of repeated and persistent communication by Mr Lewis to Mr Gruber does not suggest that Mr Gruber’s application was without merit.
Spotless’s and Mr Gruber’s consistent evidence is that decisions to allocate rostered and additional shifts to gym attendants are made in accordance with its pre-determined policies and criteria. The evidence presented indicates some inconsistencies in this approach and some confusion with requirements for Lifeguards at Latchford.
However, there is no evidence before me that either Mr Gruber or other members of the Spotless management team have not endeavoured to allocate rostered and non-rostered shifts fairly to all available staff. Furthermore, the evidence in respect of Mr Lewis’s complaints and concerns with the allocation of shifts is that overwhelmingly these have been considered and where possible accommodated in line with Spotless’s criteria. The evidence that Mr Lewis has consistently been amongst the highest earning gym attendants supports this conclusion.
Mr Gruber has provided sworn evidence to this Commission that at no time has he threatened harm or violence to Mr Lewis or other members of staff. Mr Gruber presented as a reliable and credible witness, and I accept his evidence. Spotless’s independent enquiries into these allegations further support this conclusion and there is no evidence before me to indicate otherwise. In reaching this conclusion, I have considered Mr Lindner’s evidence. While I accept Mr Lindner has endeavoured to be of assistance to the Commission, I consider his admission that he did not hear Mr Gruber make this threat significant.[18]
Finally, I have considered Mr Lewis’s own evidence in proceedings that at no time has he ever been directly threatened by Mr Gruber. And further, that his concern about his health and safety was because of what he had heard about Mr Gruber. While I accept Mr Lewis may have a concern with Mr Gruber, there is no evidence before me to conclude Mr Lewis has been subjected to any threat, or that there is a risk arising to his health and safety because of Mr Gruber.[19]
It follows from the above, that I do not accept that Mr Lewis has been subjected to bullying by Mr Gruber or Spotless by alleged lies to the Commission. Furthermore, I do not accept that there is valid basis for Mr Lewis’s concerns to his health and safety arising from the alleged conduct of Mr Gruber.
Bullying Complaint – 3
The Applicant’s case
Mr Lewis claims that he has been subjected to a further act of bullying by Spotless failing to adequately respond to or investigate complaints and safety concerns he has raised about Mr Gruber. His evidence in support of this position is that since becoming aware of Mr Gruber’s alleged threats to harm those who he disliked or made complaints about him, and his decision to continue to raise concerns, he reached out to Spotless to investigate his safety concerns. He submits Spotless has either failed to respond to these complaints or take action to adequately address his concerns.
The Respondent’s case
Spotless’s position is that it has consistently acted reasonably in engaging with and responding to Mr Lewis’s complaints. They submit they have repeatedly investigated Mr Lewis’s complaints about unfair rostering and that Mr Lewis has not been satisfied with the outcome of these investigations and responses and continued to raise the same concerns. They maintain, as indicated above, that they have not found any basis of Mr Lewis’s complaints of unfair rostering. That they have acted reasonably in responding to Mr Lewis’s complaints and taken steps to accommodate his concerns where reasonable and possible.
Spotless’s further position is that on multiple occasions they have advised Mr Lewis of additional channels for him to make and escalate his complaints, that he has not acted upon. Their position is that the fact Mr Lewis feels he has been treated unfavourably by their responses to his complaints or being unsatisfied with the response does not make the management action unreasonable.
Regarding Mr Lewis’s concerns about Mr Gruber’s impact on his health and safety, Spotless submit they have acted on these concerns by taking steps to ensure Mr Gruber and Mr Lewis do not come into contact at work.
Consideration
The evidence in the case is that Mr Lewis consistently raised concerns about unfair rostering practices and that Spotless has acted reasonably in response to these complaints. I accept this evidence, and I am satisfied there is no basis for a finding of Mr Lewis being subjected to bullying on account of Spotless’s response, or lack thereof, to his complaints. I also accept that in making his complaints Mr Lewis has failed to follow the escalation policies and procedures suggested to him because he chose not to, due to his concerns with local management.
I am not satisfied however, that Spotless has set in place best practice policies and procedures for making, investigating and responding to complaints. In many instances, Mr Lewis was not provided any follow up or response to complaints he thought he had made. Nor does it appear was he provided with any thorough explanation of the reason and rationale for the responses apart from a simple email communication. It also appears to me that Spotless have discounted Mr Lewis’s concerns about his health and safety and treated all his complaints as one complaint about unfair rostering.
Whatever Spotless might think of Mr Lewis’s safety concerns, he has the right to make a complaint about concerns to his health and safety and to have these concerns treated seriously and considered on their merits. It is not enough for Spotless to claim it has discharged its obligations to Mr Lewis by separating him from contact with Mr Gruber. His complaints warranted being treated seriously, investigated and he was entitled to be provided with a response to his concerns. Mr Mosterd’s evidence accepts that Mr Lewis’s safety complaints were not thoroughly investigated and nor was he provided with a response.[20]
This is an inadequacy that needs to be addressed by Spotless. And while I have not been satisfied of a risk to Mr Lewis’s health and safety, it has no bearing on my conclusions, it should be treated with the urgency all concerns about employees’ health and safety deserve.
Bullying Complaint – 4
To the extent relevant, I have set out the evidence and my consideration of Mr Lewis’s assertion he has been subjected to bullying by virtue of alleged threats made by Mr Gruber above under Bullying Complain – 2. Mr Lewis concedes that Mr Gruber has not made any direct threats to him. Accordingly, I am satisfied Mr Lewis has not been subjected to bullying on the above basis.
Bullying Complaint – 5
The Applicant’s case
Mr Lewis submits that by being warned he could be subjected to disciplinary action for making contact with, or complaints about, Mr Gruber or raising other concerns he may have with anyone he has been subjected to bullying. Further, that the direction that he does not use gym equipment is another instance of him being bullied.
His submissions in support of these assertions are that because he has legitimate concerns for his safety, he has a right to raise concerns with Spotless management and beyond. That his rights to raise concerns also exists as a right to raise concerns with the Department of Defence or the Defence Ombudsman regarding any concerns arising from his time on defence properties.
He accepts that Spotless has a right to direct him not to contact with Mr Gruber. He maintains however, that what he has heard about Mr Gruber threatening other members of staff, has raised legitimate health and safety concerns in his mind that he is entitled to seek to be addressed. His position is that he has persistently raised these concerns at multiple levels throughout Spotless but that he has been ignored or received no response. By threatening him with termination for continuing to raise these concerns he submits he has been bullied at work.
With respect to the warning issued that he is not to use defence equipment in the gym, Mr Lewis’s position is that he has consistently been able to use matts placed on the gym floor for stretching. That he has never previously had a concern raised with him about stretching on the gym matts and that him being warned not to stretch on gym matts or otherwise use defence gym equipment is another example of bullying.
The Respondent’s case
Spotless accept that they have provided Mr Lewis with multiple warnings and clarifications of their expectations of him and the requirements of his position and conduct. This has included directions that he is not to communicate with Mr Gruber by any means and extended “to discussions with other contractors, clients and any other person you interact with in carrying out your duties”. Further, that they have also provided Mr Lewis with written directions not to use defence gym equipment. Both directions included reminders to Mr Lewis that should he not follow these directions he may be subject to disciplinary action, including termination.
It is Spotless’ position that in the circumstances of this case, it was entirely reasonable for Mr Lewis to be provided with the written directions and reminders as has occurred. They submit this is particularly the case given Mr Lewis’s pattern of persistently raising unfounded and unsubstantiated allegations about Mr Gruber without any evidence of the conduct alleged, threats to, or impact on his health and safety. In terms of the gym equipment direction, they maintain the consistent position is that the use of gym equipment, including matts, is not allowed by gym attendants and that Mr Lewis was aware of this requirement.
Consideration
There is nothing necessarily insidious about an employer providing employees with written notice or clarification of their requirements and expectations of them, including putting them on notice of the consequences of a failure to meet these requirements. In doing so however, it is critical employers ensure the expectations and consequences they are articulating are well founded and can be relied upon.
In the present case, Spotless’s warnings to Mr Lewis include as follows:
“I would like to remind all staff that under no circumstances are we to speak to our customers about other staff members…and that any breach may result in disciplinary action, including termination.”
…
This direction extends to any discussions with company employees, contractors, clients, and any other person who you interact with in carrying out your duties.”[21]
Mr Lewis interprets these directions as limiting his right to raise legitimate health and safety concerns and his right to report concerns to the Department of Defence or Defence Ombudsman. Considered from this perspective, they have merit. As Mr Mosterd accepted in proceedings, Spotless cannot expect that Mr Lewis does not report safety concerns or matters of concern to him to the Defence Department.[22]
In doing so, they have overstepped the line of reasonableness that might otherwise justify providing an employee with repeated warnings that they may be subject to termination. If the present circumstances where different I would be satisfied this conduct may amount to bullying and consider the making of an order for it to cease.
However, I do not accept that this is required. This is because the premise of Mr Lewis’s grievance are the safety concerns he has based on third party reports of things Mr Gruber is alleged to have said, for which there is no evidence to support.
Mr Lewis accepts he has not been threatened by Mr Gruber. He has not presented any other evidence or supporting material for me to conclude that his concerns for his safety from the conduct of Mr Gruber are of any merit. It follows from this conclusion that in persisting to raise purported safety concerns without any evidence or merit, Mr Lewis himself was behaving unreasonably.
This conclusion does not apply to the direction relating to gym equipment. I accept Spotless has a right to direct employees to comply with their requirement not to use defence gym equipment. In proceedings however, it became apparent the controversy around this direction was whether a large mat regularly found on the gym room floor counts as “gym equipment”. Whilst I accept this may be an important distinction, in the circumstances of this case where such a direction was not previously provided and Mr Lewis’s conduct at work was being monitored, I do not accept that in seeking to draw the distinction Ms Stanic may not have been otherwise motivated. I accept that from Mr Lewis’s perspective, he was entitled to perceive this to be the case and consider it as another instance of bullying.
Ultimately however, I accept that Spotless’s direction that Mr Lewis cease using defence gym mats was a lawful and reasonable direction. Mr Lewis was provided a direction not to use gym equipment on 29 August 2024 and 11 September 2024. His complaint is that in being directed not to use gym equipment he was being denied an opportunity to stretch, a further act of bullying. The direction on the 11 September 2024 was issued by Mr Mosterd because Mr Lewis did not comply with original direction. He accepts he was stretching on a mat, nowhere near gym equipment. The lawful direction Mr Lewis was provided was not to use defence equipment, including gym mats. Mr Lewis chose not to comply with this direction, presumably because of his perception it was bullying.
While I accept that from Mr Lewis’s position the direction not to use defence equipment was trivial, I do not accept the evidence supports a conclusion that Spotless or any of its employees were acting unreasonably in directing Mr Lewis not to use the defence equipment. The direction was clearly not to use defence equipment. While this may have meant Mr Lewis would need to find another area to stretch and lead him to believe he was being further subjected to bullying, there is no conclusive evidence before me to support this finding.
Bullying Compliant – 6
The Applicant’s case
Mr Lewis was suspended from work on full pay on 13 September 2024 following an incident the previous day when he is alleged to have engaged in misconduct. The misconduct alleged is that Mr Lewis behaved aggressively and inappropriately towards Ms Stanic and Ms Hocking by raising his voice, shouting and lunging towards Ms Stanic. He submits this suspension is another act of bullying by Spotless, Mr Mosterd and Ms Stanic.
In support of this position, Mr Lewis accepts that he “lost his cool” and yelled at Ms Stanic and Ms Hocking. He accepts this was not appropriate behaviour but denies acting aggressively or threateningly towards them. He does not accept his behaviour warranted being suspended from work. He argues his behaviour can be explained because of his frustration at what had occurred and perception that Ms Stanic and Ms Hocking’s approach to him was motivated to further aggravate and antagonise him. He further submits that the fact he returned to work on 13 September 2024 and engaged in an affable manner with Ms Hocking does not support a conclusion he was aggressive or threatening the previous day.
Supporting this position, Mr Lewis sought a video recording of the incident be made available to the Commission, which was played at the commencement of proceedings. He claims additional video evidence is available that will further support his position.
The Respondent’s case
Spotless deny Mr Lewis’s suspension is an act of bullying. Their position is simply that serious allegations of misconduct have been made against Mr Lewis. That the allegations related to Mr Lewis’s conduct and behaviour in the workplace and interaction with other employees. And that the allegations are serious and warranted further investigation. That Mr Lewis’s suspension from work to allow this investigation to occur is reasonable management action in all the circumstances, consistent with the company policies and procedures.
Consideration
At the commencement of the hearing, a video excerpt of the alleged incident involving Mr Lewis, Ms Stanic and Ms Hocking was played for the Commission at Mr Lewis’s request. The video did not include any audio records, and only confirms Mr Lewis quickly got up from his chair. No other conclusion can be made from this evidence.
The facts as to what was said between Mr Lewis, Ms Hocking and Ms Stanic are contested and were not conclusively presented to the Commission as the Respondent’s investigation remained underdetermined at the time of proceedings. Mr Lewis claims he was provoked by Ms Stanic and Ms Hocking approaching him. He does not accept they were genuinely concerned for his welfare but motivated to further bully and antagonise him. He accepts his language towards Ms Stanic was inappropriate. He does not accept he behaved in any way aggressively or threateningly and that he should have been suspended from employment.
Spotless’s position is it has legitimate concerns with the conduct and behaviour of Mr Lewis on 12 September 2024. That these concerns are serious and warrant further investigation, and that it determined the most appropriate way to conduct this investigation is with Mr Lewis suspended from work on pay. They maintained no conclusions or findings have or can be made as its investigations were ongoing at the time of the hearing. On this basis, they submit, the decision to suspend Mr Lewis is reasonable management action, carried out in a reasonable way consistent with its policies and procedures.
Mr Lewis accepts he lost his cool with Mr Stanic on 12 September 2024. He accepts his behaviour was inappropriate. I accept Mr Lewis may present a credible explanation for this conduct in the circumstance of this case. However, this is not the question I have to determine.
Whether Mr Lewis’s suspension from pay can be considered an instance of bullying turns on the rationale for Spotless’s decision to suspend him. The evidence presented, including Mr Lewis’s own admissions, is that his behaviour on 12 September 2024 was less than appropriate. On this basis alone, I am satisfied Spotless’s decision to suspend him does not constitute bullying but was reasonable management action, carried out in a reasonable way.
Repeated unreasonable behaviours
For the reasons above, I have not been satisfied that any of the identifiable individual complaints of bullying by Mr Lewis constitute unreasonable behaviour for the purposes of bullying under the FW Act.
I will now consider an overview of Mr Mosterd, Ms Stanic and Spotless’s behaviour towards Mr Lewis considering all the complaints to determine whether there is an overall pattern of repeated unreasonable behaviour.
This consideration does not lead me to conclude there is evidence to support a finding of repeated unreasonable behaviour. What is clear from the evidence in this case is that Mr Lewis has consistently and repeatedly raised concerns and complaints about rostering and shift allocations for some time. In receipt of these complaints, the overwhelming evidence is that Spotless management, including Mr Gruber and Ms Stanic, have genuinely considered what Mr Lewis has had to say and responded as possible and as appropriate, consistent with its policies and procedures.
It is the case that not every call, complaint or email has been responded to and Spotless management have not always achieved absolute compliance with its policies and procedures. However, there is no evidence before me to conclude Spotless or its representatives have acted in any way toward Mr Lewis consistent with behaviours encompassed within the definition of unreasonable behaviour that would amount to bullying.
On the contrary, despite the persistent, repeated and often inappropriate tone with Mr Lewis communicated his complaints, the evidence is that Mr Lewis has not been ignored, or had himself or his concerns disregarded. This is not to say Spotless has always agreed or acted on his concerns. That is not the case. Ultimately however, I am satisfied that in no way have they acted repeatedly unreasonably, or in an unreasonable way towards Mr Lewis that would meet with the definition of bullying within the FW Act.
Conclusion
On the material before me, I have determined that the behaviour of Mr Mosterd, Mr Gruber and Spotless towards Mr Lewis was not repeated, unreasonable behaviour and therefore not bullying for the purposes of the FW Act. I have also not been satisfied that Mr Lewis is exposed to a risk to his health and safety. For these reasons and the fact that Mr Lewis is no longer an employee of the Respondent, I cannot make a finding that he will continue to be bullied at work.
This is not to say that Spotless has been faultless in its management of its employment relationship with Mr Lewis. Certainly, as identified, Spotless needs to take more care with establishing the basis on which it directs employees not to communicate with others, and more consistency on how it applies its requirements for the use of gym equipment. In addition, Spotless should consider a more clearly established, communicated and transparent process for the allocation of shifts and rosters. It could also benefit from taking a firmer approach to addressing historical complaints made about other members of staff that have no evidentiary support or connection with employees’ conduct in the workplace.
Accordingly, Mr Lewis’s s.789FC application is dismissed.
COMMISSIONER
Appearances:
C. Lewis as the Applicant
A. Crockett on behalf of the Respondent
Hearing details:
16 October
Melbourne
2024
[1] See Allison C in Application by Miss Inderjeet Kaur [2024] FWC 3096 at [10] and Explanatory Memorandum, Fair Work Amendment Bill 2013 (Cth) 109.
[2] [2015] FWC 774.
[3] Ibid at [94].
[4] See Application by Ms SB [2014] FWC 2104 at [47].
[5] Ibid.
[6] Application by Inderjeet Kaur [2024] FWC 3096 at [14].
[7] Applicant’s Written Submissions dated 3 September 2024 at [14], Court Book page 6.
[8] Ibid at [23]-[26], Court Book page 10.
[9] Ibid at [14], Court Book page 7.
[10] Statutory Declaration of Mr Linder, Court Book page 252.
[11] See Respondent’s Written Submissions at [34], Court Book page 263.
[12] Ibid at [37] and [52], Court Book pages 264-267.
[13] Ibid at [46], Court Book page 265.
[14] Amie Mac v Bank of Queensland Limited & Others[2015] FWC 774.
[15] [2024] FWC 3096 at [48].
[16] Witness Statement of Dale Gruber at [10], Court Book page 292 and Witness Statement of Zorica Stanic at [13], Court Book page 2014.
[17] See Transcript of Proceedings on 16 October 2024 at [PN1254].
[18] Ibid at [PN129]-[PN136].
[19] Ibid at [PN436]-[PN461].
[20] Ibid at [PN1192]-[PN1200].
[21] Ibid at [PN340]-[PN343].
[22] Ibid at [PN1103]-[PN1112].
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