Mr Felix Stefan

[2017] FWC 4677

[2017] FWC 4677

FAIR WORK COMMISSION

DECISION

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

Mr Felix Stefan
(AB2017/332)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 8 SEPTEMBER 2017

Application for an FWC order to stop bullying – exclusionary conduct not found – single instance of unreasonable management conduct found - not repeated conduct - bullying claim not sustained – recommendations made - application dismissed

[1] On 19 June Mr Felix Stefan made an application to the Fair Work Commission (the Commission) under section 789FC of the Fair Work Act 2009 (the FW Act) for an order to stop bullying conduct he alleges has taken, and may in the future take place, within his workplace. The workplace concerned is a mushroom farm located in Virginia South Australia operated by SA Mushrooms (SA Mushrooms).

[2] Mr Stefan has been employed by SA Mushrooms for approximately six years as a mushroom grower. He is a full time employee. He continues to be employed.

[3] Mr Stefan alleges that he has been subject to bullying conduct since November 2016 by the employer’s General Manager Mr Brian Tipper and by its Managing Director and Chief Executive Officer Mr Nick Femia.

[4] On 24 June both Mr Tipper and Mr Femia lodged responses with the Commission. They each deny the allegations of bullying conduct. They assert some of the alleged conduct did not occur at all. They claim other alleged conduct was not bullying as it constituted reasonable management action conducted in a reasonable manner. The employer, SA Mushrooms, also submitted a response under Mr Tipper’s hand in similar terms.

Case Background

[5] I conducted three private conferences of Mr Stefan’s application on 11 July, 19 July and 2 August. Arising from these conferences, I issued a formal Recommendation to the parties on 20 July 1 and then issued an Amended Recommendation on 2 August.2

[6] The Commission’s Recommendations and Amended Recommendations were accepted by Mr Tipper, Mr Femia and SA Mushrooms (the employer parties). However, at a Directions Hearing on 10 August Mr Stefan exercised his right to accept some but not all of my Recommendations. Mr Stefan reaffirmed his intention to have his application heard and determined.

[7] At the Directions Hearing on 10 August I advised the parties that I considered conciliation to be exhausted and agreed to set the matter down for hearing and determination. I issued Directions on 11 August in advance of the hearing. I conducted a hearing of the matter by determinative conference on 1 September.

[8] At the Directions Hearing on 10 August I sought the views of the parties as to whether they considered it appropriate for me, as the Member of the Commission who had conducted the conciliation process and issued recommendations, to determine the matter, or whether they considered that the matter should be re-assigned to an alternate member of the Commission. All parties indicated support for the matter being heard and determined by myself. I considered this and agreed to that course. At the commencement of the hearing on 1 September I provided the parties with a further opportunity to affirm or express an alternate view on my role. Each confirmed their previously expressed position. I concurred with that view and proceeded to hear the matter, which I now determine.

[9] This matter has a history beyond the immediate application.

[10] It is the second application to the Commission’s anti-bullying jurisdiction made by Mr Stefan against SA Mushrooms, Mr Tipper and Mr Femia. The first, made in November 2016 3 was discontinued by Mr Stefan in March 20174 as part of a settlement agreement in which the parties accepted recommendations made by Deputy President Bartel on 19 January 2017. Mr Stefan prosecutes this second bullying application, in part, on the basis of what he asserts to be failures by the employer parties to appropriately implement their agreement to Deputy President Bartel’s recommendations. The employer parties deny this assertion and claim that they have implemented their obligations faithfully and in full. I deal with this matter later in this decision.

[11] I also note, for the record, that whilst the recommendations of Deputy President Bartel were expressed as “confidential and not to be relied upon in further proceedings”, all parties before me made reference to those recommendations where relevant to their position and agreed that I should make reference to them in dealing with this second application. 5

[12] In addition, a general protections application 6 under section 372 of the FW Act was made by Mr Stefan concerning the same or similar workplace matters. It was conciliated by Commissioner Platt at a conference on 19 June and subject to formal Advice on 20 June in which the Commissioner concluded that based on the material before him the general protections claim “would not have a reasonable prospect of success”. 7

[13] Consequently, this second bullying application was lodged with the Commission.

[14] Mr Stefan and the employer parties co-operated fully with the Commission in advance of and at the determinative conference. Mr Stefan was self-represented and attended with his wife, Ms Simona Stefan as a support person. Both gave evidence in support of his application. The employer parties each appeared at the hearing, with both Mr Tipper and Mr Femia giving evidence in support of their response and that of SA Mushrooms. Witness statements of two other employees Mr Igor Socican 8 and Mr Bill Chaaban9 were provided by the employer parties. Although Mr Stefan disagreed with one aspect of Mr Chaaban’s statement, it was agreed by all parties that these statements should be brought into evidence without the employees being called for cross examination. I considered this an appropriate course given the potential damage to personal relationships in the workplace that both Mr Stefan and Mr Tipper were keen to avoid.

[15] At the conclusion of proceedings I reserved my decision. In arriving at this decision I rely on all of the documentary material and oral evidence before me.

Legal Considerations

[16] There is no jurisdictional barrier to my determination of this matter. Mr Stefan has invoked the anti-bullying jurisdiction of the FW Act. I am satisfied that the conduct alleged by Mr Stefan is said to have taken place in a workplace that is conducted by a “constitutionally-covered business” under section 789FD(3) of the FW Act (by virtue of SA Mushrooms being a “constitutional corporation” under section 789FD(3)(a)(i)) and that Mr Stefan is a “worker” within the meaning of section 789FD of the FW Act.

[17] In dealing with anti-bullying applications, the Commission must apply the statutory definition of bullying set out in sections 789FD(1) and (2) of the FW Act:

“(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.”

[18] The Commission is only able to make orders to stop bullying as provided for by section 789FF of the FW Act. Orders to stop bullying can only be made if bullying (as defined) has occurred and if “there is a risk that the worker will continue to be bullied at work by the individual or the group” (section 789FF(1)(b)(ii)).

[19] The power to make a bullying order is discretionary. While the Commission may make any order it considers appropriate, it has no power to make an order requiring payment of a pecuniary amount. Any orders made must be preventative in nature, that is, forward looking; they must be designed to “prevent the worker from being bullied at work by the individual or the group”. 10

[20] In considering the terms of an order, the Commission must take into account:

“(a) if the FWC is aware or any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body – those outcomes; and

(b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes – that procedure; and

(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes – those outcomes; and

(d) any matters that the FWC considers relevant.” 11

Mr Stefan’s Case

[21] Mr Stefan claims that he has been bullied by way of both exclusionary conduct and by unreasonable disciplinary action by management. The particulars of his case can be summarised as follows:

Exclusionary Conduct

● His name has been removed from an out of hours contact list;
● He has been denied remote (home) computer access to monitor growing rooms;
● He has been denied the use of his personal mobile phone whilst working;
● He has not been provided first aid certificate training;
● He has had certain work duties altered in a way that he believes disadvantages him;
● He has been offered part time work when other growers are full time.

Unreasonable Disciplinary Action

● He has been subject to a Performance Improvement Programme and warnings which are unmerited and part of an unfair disciplinary process;
● Investigations into his alleged conduct and his complaints against others have been unfair and not independently assessed.

[22] He claims that the bullying has been undertaken by Mr Femia and Mr Tipper. Mr Stefan seeks orders against each of the employer parties to stop the existing, and prevent in the future, alleged bullying conduct.

The Employer Parties’ Case

[23] The employer parties say that:

● Mr Stefan’s name has not been removed from an out of hours contact list as there is no such list;
● The removal of remote (home) computer access to growing rooms was a business decision which continued interim arrangements established during a period of his absence on sick leave;
● The prohibition on Mr Stefan using his mobile phone whilst working is for safety reasons and not directed specifically at him. Some employees are permitted to have their mobile phones at work where this is needed for operational reasons, and this access is reviewed on a regular basis;
● Mr Stefan has not been denied access to first aid training, but this has been deferred until a group intake;
● Some of Mr Stefan’s work duties have been altered on account of certain duties being shared with new employees;
● Mr Stefan continues to work full time and the employer has no plans past or present to employ him part time;
● Mr Stefan’s performance review process and warnings are the product of reasonable management action taken in a reasonable manner;
● Investigations into Mr Stefan’s conduct have been fairly conducted. His complaints against others have been investigated and found to be unsubstantiated;
● Mr Stefan continues to make false claims and insinuations against Mr Tipper, Mr Femia and other persons which is of serious concern to the employer and damaging to the employment relationship.

Consideration

[24] I now deal with each of Mr Stefan’s claims in order to determine whether he has been bullied at work.

Out of Hours Contact List

[25] Mr Stefan claims that his name and phone number has been removed from an out of hours emergency contact list that was on the farm in the grower’s office. The employer parties gave evidence that there is and was no such list.

[26] I accept Mr Tipper’s evidence that he has made due inquiries since Mr Stefan first made this claim to ascertain the whereabouts of an emergency contact list. Those inquiries did not reveal the existence of a list, currently or in the recent past. Mr Tipper’s inquiries did however reveal that in the grower’s office there is a contact list set up by harvesting supervisors to contact their staff at short notice should unexpected absences need to be filled. Initially, Mr Stefan’s name was not on that list as he was a grower, not a harvester. Subsequently the names of growers were added to that list, some by hand and then in typed form. Exhibit D to the employer’s materials was provided to me and is a current copy of that type written form with Mr Stefan’s name on it. 12

[27] Mr Stefan’s evidence is that he is anxious because his name was taken off the (alleged) emergency contact list. Somewhat perplexing is his evidence that he is now anxious that is name is included on the harvesters contact list. He believes that the fact that his name is towards the bottom of that list is an indication that his standing as a long term employee is being diminished. He believes that because his name was originally handwritten not type written that he is not being respected.

[28] I do not find these contentions to be reasonable. I find that Mr Stefan has confused the harvester’s contact list with his belief that there was an emergency contact list. I accept Mr Tipper’s evidence of the circumstances in which Mr Stefan’s name came to be included on the harvester’s contact list. There is no reliable evidence before me to conclude that his name has been removed from any contact list.

[29] Mr Stefan’s contention concerning the out of hours contact list is not made out.

Remote Computer Access

[30] Mr Stefan claims that he has been denied remote (home) computer access for monitoring conditions in growing rooms. I accept his evidence that he was provided that access, at the employer’s discretion, since 2011 until going on sick leave in or around November 2016. He was on sick leave for about a month. On returning in December 2016 he was advised that he would no longer have that access.

[31] Mr Tipper’s evidence was that whilst Mr Stefan was on sick leave alternative arrangements were put in place whereby Mr Tipper himself exercised remote access. He made a business decision on Mr Stefan’s return to maintain that interim position, with Mr Stefan no longer undertaking that work. He has subsequently maintained that oversight, though has in recent months also included the Head Grower in that access.

[32] Mr Stefan has no contractual right or responsibility to undertake remote monitoring of growing room conditions whilst he has left work and is at home. Whether his employer wishes to provide that access is a matter for the business. In this case, the General Manager assumed that responsibility during his absence, and given the importance of maintaining oversight of growing conditions has elected to retain that role to himself and also provide access to the Head Grower who is a person in whom he has confidence to perform that task. I find that this was a business decision for business reasons. In electing not to maintain Mr Stefan in that role Mr Tipper had regard to his wellbeing (not requiring him to perform work responsibilities whilst at home), his absence on sick leave, and what he considered to be a general loss of confidence in aspects of his performance. In an effort to allay Mr Stefan’s concerns, Mr Tipper gave an undertaking during proceedings that the employer would not hold Mr Stefan responsible for any adverse circumstances occurring in growing rooms whilst he is not at work or not able to control. I consider this a reasonable undertaking.

[33] Mr Stefan’s contention concerning remote computer access is not made out. The undertaking given that Mr Stefan is not to be held accountable for growing conditions whilst not at work or not able to control should suffice to allay any concerns reasonably held by Mr Stefan.

Mobile Phone Use

[34] Mr Stefan claims that he has been denied the use of his personal mobile phone at work whilst other employees are permitted to use their mobile phones. His evidence was that he was allowed to use his phone from 2011 until December 2016. He believes that he needs his phone for safety reasons as he works in an environment where CO2 conditions can vary.

[35] Mr Tipper’s evidence is that the employer reviewed its policy concerning mobile phone use at work in December 2016 and resolved that the default position for safety reasons would be that no employee be permitted to use their personal mobile phone whilst at work (except in breaks) other than persons expressly authorised to do so.

[36] I accept Mr Tipper’s evidence that the decision to prohibit personal mobile phone use whilst at work was a business decision for legitimate safety reasons. It is not unreasonable for an employer to manage safety risks when persons work around machinery by requiring full care and concentration. Mr Stefan’s own evidence was that to operate machinery he needed two free hands. I also accept Mr Tipper’s evidence that risks associated with CO2 levels in growing rooms are managed by protocols known to employees, including Mr Stefan, and do not require personal mobile phone access. I also accept that it is reasonable for management, in a controlled manner, to authorise some exceptions to this rule. Mr Tipper and Mr Femia for example carry their personal mobile phones due to their movement across and outside the farm.

[37] Mr Stefan’s apprehension that this policy has been applied in an exclusionary fashion to disadvantage him arises from the fact that a trainee grower has been permitted access for the period of their probation, and that another employee was provided access. I accept Mr Tipper’s evidence that an employee was provided access in error and when that fact came to Mr Tipper’s attention then access was removed. I also accept Mr Tipper’s evidence that the trainee grower has access during their probation period only should they need to immediately contact management for guidance. This access will be next reviewed in October 2017.

[38] Although it was understandable that Mr Stefan initially held an apprehension that the no mobile phone policy was exclusionary to some degree, once these matters were corrected and explained to him (as they have been), it was no longer reasonable for him to hold that concern.

[39] Mr Stefan’s contention concerning mobile phone use is not made out.

First Aid Certificate Training

[40] Mr Stefan claims that he has not been provided first aid certificate training as required by his employment contract. In his period of employment, certain intakes of employees have been provided first aid training.

[41] Mr Tipper’s evidence was that this issue only came to light in Mr Stefan’s second bullying application, and that on checking Mr Stefan did have an employment obligation to maintain a first aid certificate. 13 Although his contract is silent on how training is to be provided and funded, Mr Tipper indicated that the practice of the business was to fund group intakes of mainly managers and supervisors on a periodic basis. He indicated that Mr Stefan had not been included in previous intakes due to the fact he is not a manager or supervisor and Mr Stefan had not indicated a concern in that regard.

[42] I am satisfied that whilst Mr Stefan has not been provided first aid training, that this is not the result of exclusionary behaviour by the employer. I note Mr Tipper’s evidence that the employer would be willing to include Mr Stefan in the next group intake, and to fund his first aid training. I also note Mr Stefan’s acceptance of that proposal.

[43] Mr Stefan’s contention concerning first aid training is not made out but is capable of resolution between the parties on the basis of the undertakings given in these proceedings.

Alteration of Work Duties

[44] Mr Stefan claims that he has had certain work duties altered in a way that he believes disadvantages him. His evidence was that in recent months he is doing less growing work and more general farm hand work. He says that some other employees have been assigned his growing tasks. As an experienced grower he considers it unfair and inappropriate for him to be doing unskilled work whilst others perform his skilled tasks.

[45] Mr Tipper’s evidence was that Mr Stefan continues to perform the skilled tasks of a grower. He says that new employees have been recently employed as growers and that some reallocation of work from Mr Stefan has occurred as a result. He says that all growers perform a variety of tasks and are not always employed performing skilled work.

[46] I accept Mr Tipper’s evidence. It is supported by documentation showing a spread of duties amongst the growers. 14 Although it is understandable that Mr Stefan feels uncomfortable with the fact that new employees have been employed and that some of his skilled tasks are being distributed amongst three other staff (including himself) this is a business consequence of employing more persons in production and seeking to train those new employees.

[47] Mr Stefan’s contention concerning reallocation of duties is not made out.

Part time Employment

[48] Mr Stefan claims that in February 2017 he was offered part time work by Mr Femia of approximately 20-24 hours per week in private discussions concerning the implementation of Deputy President Bartel’s recommendations. His evidence is that this has caused him anxiety as he wants to remain a full time employee.

[49] Mr Femia’s evidence was that Mr Stefan is employed as a full time employee and that no offer of part time employment has been made to Mr Stefan. He says that a misunderstanding may exist given that he did speak to Mr Stefan about reducing the amount of time he spends at work as a salaried employee. Mr Stefan produced an email 15 he sent to Mr Femia dated 20 February 2017 in which he (Mr Stefan) asserts that Mr Femia suggested a possible new employment contract of 24 hours per week. I also note Mr Tipper’s evidence which acknowledged that Mr Stefan’s employment contract is full time and could not be altered to part time employment without either being terminated or with his consent.

[50] Even if Mr Stefan was involved in discussions with Mr Femia about part time employment options in February 2017, there is no evidence of exclusionary behaviour as he remains a full time employee. Mr Stefan’s contention concerning part time employment is not made out.

Disciplinary Action Pre Application

[51] The most substantive aspect of Mr Stefan’s application is that disciplinary action taken by SA Mushrooms since November 2016 until the date of filing his application constitute bullying conduct.

[52] Mr Stefan’s evidence was that he was given a final written warning on 1 June concerning conduct on 24 May. He says the warning was unjustified. It relates to his alleged failure to protect the casing structure which enclosed soil and growing mushrooms. He claims he was following procedures advised to him the preceding day. He also claims that the warning was unfairly administered in that he was prevented from speaking to another employee, Mr Chaaban about the criticisms which the employer was levelling at him. Mr Stefan said that he was told to sign the warning. He also said that the warning made him feel anxious and has led him to believe that he will be dismissed if he makes any mistakes.

[53] Mr Tipper and Mr Femia both gave evidence that the final written warning on 1 June was justified. They said it concerned a serious risk to production and to production systems caused by Mr Stefan administering inadequate water levels. Mr Tipper’s evidence was that the warning was decided on only after he conducted an investigation of the matter. He said that Mr Stefan was provided a full opportunity to explain his conduct and respond to the employer’s concerns. He said that the warning was provided in writing and that Mr Stefan was asked to sign it but declined. The warning was then placed on his file in accordance with regular practice. He says that the warning provides that the consequence of further breaches “may” be dismissal, not “will” be dismissal. He accepts that he did intervene to prevent Mr Stefan speaking to Mr Chaaban about Mr Chaaban’s evidence to his investigation because he wanted to avoid Mr Chaaban being made to feel uncomfortable for having participated in the investigation, and to avoid a potential altercation.

[54] Mr Tipper said that the warning followed three earlier warnings given by SA Mushrooms to Mr Stefan including one in November 2016 16 before the first anti-bullying application.

[55] Mr Tipper further said that following the November 2016 warning Mr Stefan was placed on a Performance Improvement Programme but that Mr Stefan did not respond or participate effectively in that programme. Mr Stefan accepts that he was placed on a Performance Improvement Programme but claims that the employer did not provide him a fair opportunity to address concerns they had with his performance.

[56] I am satisfied that Mr Tipper issued warnings to Mr Stefan, including the final written warning of 1 June, based on a genuine belief that the warnings were justified and, at least in respect of the 1 June warning, after due investigation. I am not satisfied that his intervention in the discussion between Mr Stefan and Mr Chaaban was unreasonable. He wanted to maintain the integrity of his investigation. It did not deny Mr Stefan the capacity to put his explanation to the investigator.

[57] However, there is one aspect of the 1 June warning which was specifically claimed by Mr Stefan to constitute bullying conduct and which warrants deeper inquiry. He claims that Mr Femia, on 24 May, used loud and insulting language to him in the presence of other employees by calling him “the worst grower he had seen in his time at SA Mushrooms”, or words to this effect. Mr Femia did not deny that he told Mr Stefan this when he discovered the state of the casing structure. However, he said that the conversation was a private one between himself and Mr Stefan, and that it was not in earshot of other employees. He said he was firm in his voice and manner but not rude or threatening.

[58] Mr Stefan’s complaint that he had been bullied by Mr Femia was specifically investigated by Mr Tipper, as a subset to his investigation of the 24 May incident. It was conducted under the employer’s anti-bullying policy. 17 Mr Tipper investigated the matter, including by speaking to other staff as to whether they heard the altercation. He found that Mr Femia had said those words or similar to Mr Stefan but not in an inappropriate or threatening manner, nor in the presence of other employees. He did not uphold the bullying complaint. He informed Mr Stefan of his findings in a separate discussion after the meeting on 1 June that advised him of the written warning.

[59] I am satisfied that Mr Femia said the words alleged by Mr Stefan and was angry when he did so. I am satisfied that Mr Stefan was upset by Mr Femia’s demeanour and particularly by the generalised critical comment that he considered a slur on his skills. I do not find that other employees heard the exchange. While it was a heat of the moment remark by Mr Femia, it reflected a view he came to hold about Mr Stefan, and a view he repeated in his evidence. I make no finding as to whether that view is justified or not. I do, however find that it was a remark that would be likely to offend a long-serving employee and make them feel anxious and insecure about their job security. It was an injudiciously expressed view by a senior manager and owner. It did not contain expletives nor was it laced by foul language or threatening physical mannerisms. It was made in a private conversation and reflected a genuinely held view arising from what management considered a serious and unacceptable error by an experienced employee. In the circumstances it was poor human resources management but I do not consider that it could be characterised as bullying behaviour.

[60] In the context of the previous warnings and the Performance Improvement Programme, I therefore find that the warning of 1 June was reasonable management action taken in a reasonable manner. Accordingly, this element of Mr Stefan’s claim has not been made out.

[61] In making these findings about the nature of the disciplinary action taken by the employer parties, I emphasise that I have not considered whether the specific conduct alleged against Mr Stefan was either contrary to policy or contrary to his employment obligations. In this matter I am dealing with a distinct question: whether the disciplinary conduct of the employer and its representatives individually or in combination with other workplace factors constituted bullying conduct. I am not determining the level of seriousness of breaches of policy or performance let alone whether those breaches would or should count towards any future termination of employment.

Disciplinary Action Post Application

[62] During the period of Mr Stefan’s application being before the Commission two further instances of a disciplinary nature have arisen, and which became the subject of evidence at the hearing.

[63] I do not consider it inappropriate, unless the Commission has recommended otherwise or made interim orders to the contrary, for an employer to exercise its full rights to take reasonable management action in a reasonable manner concerning workplace issues as and when they arise. A bullying application is no shield of immunity from an employee’s contractual obligations and the employer’s contractual rights to enforce those obligations. Self-evidently though, an employer facing a bullying application ought to be aware that their conduct and that of persons in the workplace dealing with the applicant are under independent scrutiny by the Commission at least during the life of the application and in respect of its subject matter.

[64] Mr Stefan received a letter dated 10 August in which he was informed that SA Mushrooms considered he had been late to return to work on that day and that “this kind of poor timekeeping will not be accepted in the future” and “further transgressions may lead to disciplinary action.” 18

[65] Mr Stefan gave evidence that the claim of being late to work was unreasonable, that his views had not been sought on why he attended at the time he did, and that the letter made him feel anxious about his job security.

[66] Mr Tipper said 19 that he had decided to issue the letter. He claimed it was a written counselling, not a formal warning. He said that if there had been no history of erratic or (what he considered to be) false claims by Mr Stefan then he would have simply given a verbal counselling. However, in the context of the deteriorating relationship he had decided to put his counselling in writing.

[67] The circumstances leading up to the letter of 10 August concern Mr Stefan’s involvement in a Commission telephone conference of his bullying application held at 9am on 10 August. Mr Stefan had been rostered that day to commence work at 7am. The day prior he asked permission of Mr Tipper to participate in the teleconference from his home and come to work late, after the teleconference concluded. Mr Tipper declined. He required Mr Stefan to attend work at 7am and agreed to release him at 830am so he could travel home, participate in the teleconference and then return to work. It was agreed that Mr Stefan could have his 15 minute morning break at the end of the teleconference and then come to work. The letter of 10 August says as follows:

“Our research shows that it should have taken you 13-14 minutes to return to work. This means you would have returned approximately 30 minutes after the call ended, with the knowledge that other people were waiting for you to complete your work. However, you arrived back at work 45 minutes after the end of the call, 15 minutes later than anticipated.” 20

[68] On the evidence, I am satisfied Mr Stefan was not at fault with his timekeeping on 10 August. He lives about 15 minutes from the workplace. His evidence was, which I accept, that there were roadworks which delayed his return. In any event, I am not satisfied that a criticism of his lateness can be sustained. He did not linger at home unduly. He came to work at 7am despite his preference not to do so, and drove himself back home at 830am for the Commission conference then drove back to work. While he did not report to management on returning, he had already been at work that day, from 7am at management’s request. He was not asked for his explanation for his arrival time. I consider the decision to issue a letter alleging poor timekeeping on 10 August to have been unreasonable management action. The terms of the letter are also symptomatic of a seriously deteriorating relationship. That an employer feels compelled to undertake research on an employee’s likely travel times and to express that to the minute (“13-14 minutes”) in a disciplinary letter is evidence that Mr Stefan’s conduct is being minutely scrutinised. While an employer has the right to closely scrutinise employee conduct, that degree of analysis carries the risk that views and opinions become subjective rather than objectively assessed. I consider that is what occurred in this instance.

[69] This component of Mr Stefan’s claim is made out.

[70] The second post-application disciplinary issue raised by Mr Stefan is a letter dated 28 August in the following terms:

“Dear Felix

We would like to advise you that we will be holding an enquiry into poor work performance relating to growing decisions made in rooms 12, 13 and 14 on Thursday 24-2-2017.

The hearing will be held in the offices at SA Mushrooms, 153 Tozer Road, Waterloo Corner, at 10.00 on Wednesday 30-8-2017.

You have a right to a support person to assist you in the enquiry, however it is your responsibility to arrange for them to be present at the hearing.

Should you have any questions relating to this notification please don’t hesitate to contact me.

Nick Femia

Managing Director”

[71] Mr Femia’s evidence was that he had decided a formal process was required into certain work performance issues which he says occurred on 24 August (in evidence he corrected the date in paragraph 1 of the letter). Mr Tipper said that an independent process was being conducted by a company selected consultant. He said this was because of the seriousness of the issue and noted recommendations made by Deputy President Bartel and myself that in certain circumstances impartial or independent persons should conduct or oversee disciplinary processes.

[72] Mr Stefan said that he would attend the hearing but that it made him feel anxious about his job security. He questioned whether the employer was paying the consultant and whether the consultant had sufficient technical knowledge that could result in an informed finding. During the hearing I allowed Mr Stefan to cross examine Mr Femia and Mr Tipper on the issue of payment to the consultant and whether there were any past connections between the employer and the chosen consultant. Despite the employer’s objection, I considered Mr Stefan’s questions reasonable. The employer is funding the process and asserts that it is impartial.

[73] I do not consider it unreasonable for SA Mushrooms to have established an independent process to assess a work related issue concerning Mr Stefan. In circumstances where Mr Stefan has expressed concerns to the Commission that neither Mr Tipper nor Mr Femia are able to form a fair or impartial view about him, this is not an unreasonable course. While the recommendations made by Deputy President Bartel and myself concerning independent processes were made in the context of a caution that persons the subject of complaints should not determine those complaints, I do not consider the wider application of that suggestion unfair.

[74] However, it remains the case that SA Mushrooms, as Mr Stefan’s employer ultimately has the obligation to discharge its responsibilities of providing its employees a fair go all round on matters concerning discipline or dismissal. That cannot be outsourced to third parties.

[75] I was not asked to inquire into the events of 24 August, and make no finding or observation on the merits or otherwise of matters now before the independent process.

Previous Commission Recommendations

[76] Mr Stefan considers that SA Mushrooms has engaged in unreasonable management action on the ground that it has not implemented Commission recommendations by Deputy President Bartel arising from his first bullying application. He says that he discontinued that application only on the basis of undertakings by the employer to implement the recommendations.

[77] As noted earlier, the employer parties say they have implemented their obligations faithfully and in full. In particular they point to:

● The inclusion of a ‘Respect and Dignity Statement’ 21 in company policies;
● Management training on disciplinary policies;
● A meeting between Mr Tipper, Mr Femia and Mr Stefan to discuss his future with the employer;
● Monthly meetings between Mr Femia and Mr Stefan to discuss his performance;
● Development and communication of a ‘Grievance/Dispute Resolution Process’ 22; and
● Amended Workplace Bullying Policy 23.

[78] I am satisfied from a consideration of the recommendations of Deputy President Bartel and the evidence of Mr Tipper that these steps constitute substantive compliance with the recommendations made. Although monthly performance meetings with Mr Stefan were not held, the employer formed the view that the combination of the Performance Improvement Programme and an initial meeting in February 2017 was sufficient, and that monthly meetings could impose undue pressure on the relationship.

[79] I note that in addition to the initial meeting with Mr Stefan to discuss his future with the employer, a further meeting occurred between Mr Stefan and Mr Femia in August 2017. Although Mr Femia brought a witness into that meeting and did not engage freely in the informal dialogue sought by Mr Stefan, I consider that both parties approached that discussion genuinely. Given Mr Femia’s concerns about Mr Stefan’s performance and given the strained relationship, the level of formality of such dialogue is a matter for the parties, not the Commission.

[80] I also observe that I have drawn no inference concerning the attitude of the parties to my recommendations of 20 July and 2 August. Each party has exercised their right to accept, reject or accept in part my earlier recommendations. That is consistent with the nature of conciliation proceedings.

Alleged False Assertions

[81] The employer parties expressed concern throughout proceedings that Mr Stefan continues to make, in their view, false claims and insinuations against Mr Tipper, Mr Femia and other persons which is of serious concern to the employer and damaging to the employment relationship. In particular they point to assertions made that Mr Femia is sponsoring working visa rights for Mr Tipper and for another employee, with the inference that these persons are dependent on Mr Femia and lack objectivity in reviewing any dealings between Mr Femia and Mr Stefan.

[82] It is in the nature of proceedings of this type that assertions against persons are made and that they may create discomfort and strain relations. A feature of the bullying jurisdiction is that it provides a safe forum for persons to express what it is that is causing them to feel bullied at work. Of course the Commission should, and will, act to objectively assess claims, conciliate with a view to settlement, not be influenced by assertions or evidence that is not relevant and deal with material that may be scandalous, oppressive or frivolous. I do not consider that Mr Stefan’s assertions or materials fall into those categories. His application has not been made with the intent to harm reputations. He holds a genuine view that he has been targeted with exclusionary and unfair conduct. He has developed what he says is anxiety and depression, and has been medically treated. Nor have I found any basis to conclude that any of the employer parties have been motivated by other than what they consider to be the best interests of the business and its employees as a whole and their desire to act lawfully. They have been co-operative and participative in the multiple proceedings albeit somewhat frustrated by the ready access Mr Stefan has exercised in invoking the fair work jurisdiction.

[83] For the benefit of the parties, I note and affirm the following extract from my Recommendation of 20 July:

“The Commission notes that a relationship of mutual trust and respect is necessary for an employment relationship to be effective and productive. False or unsubstantiated allegations made by or against an employee, other employees or management do not contribute to a relationship of mutual trust and respect. Mr Stefan, Mr Femia, Mr Tipper and SA Mushrooms should take particular care to ensure that claims made concerning each other are factual and respectfully communicated and investigated, as the circumstances require.”

[84] I do not consider that Mr Stefan’s reference to the working visa status of any person employed by SA Mushrooms to be relevant nor to have affected or compromised the evidence or material presented by those persons. Nor do I accept Mr Stefan’s complaint that Mr Tipper is conflicted because as General Manager he also exercises human resource functions and some operational responsibilities.

Conclusion

[85] I have found that that SA Mushrooms letter of 10 August constituted unreasonable management action against Mr Stefan.

[86] It was not, however, repeated. Conduct is only bullying conduct under the FW Act if there is repeated unreasonable behaviour towards a worker which creates a risk to health and safety. Thus, I need not decide whether it created that risk.

[87] I have found repeated conduct of a disciplinary nature, but not found repeated unreasonable conduct. Other than the letter of 10 August, I have not found that the disciplinary action taken against Mr Stefan has, to date, been unreasonable. It is conduct that suggests an active and heightened scrutiny by the employer of his performance and willingness to subject his performance to minute investigation and decision-making. At this stage, I do not consider it to be intimidatory behaviour. While it is conduct which understandably makes Mr Stefan feel uncomfortable and anxious about his job security, if it is reasonable conduct carried out in a reasonable manner then it is not bullying conduct.

[88] Nor have I found Mr Stefan’s complaints concerning exclusionary conduct to be made out.

[89] However, I note that the employer parties accepted the following Recommendations which I made on 20 July:

“That SA Mushrooms commit to provide Mr Stefan with access to first aid training as part of a group intake by no later than 12 months from today’s date or at such other date as agreed by the parties;

That SA Mushrooms commit to review the operation of its ‘no mobile phones whilst working’ policy by no later than the end of October 2017, and in particular whether the exemption currently being provided to certain new or trainee employees should continue to apply to them; and

That Mr Stefan be provided with the opportunity to have a support person present should there be any further formal disciplinary meetings that may result in counselling, warnings or termination of his employment.”

[90] I re-affirm these Recommendations and recommend that they be accepted and implemented by SA Mushrooms notwithstanding this decision. In addition, I recommend, in light of my findings, that the employer parties immediately withdraw the letter of 10 August 2017 from Mr Stefan’s personnel record and place no reliance on it in any future disciplinary proceedings. Further, I recommend that the employer confirm in writing to Mr Stefan its undertaking given in these proceedings that that the employer would not hold Mr Stefan responsible for any adverse circumstances occurring in growing rooms whilst he is not at work.

[91] I make these Recommendations in the interests of providing the parties some basis on which to move ahead with their relationship.

[92] For these reasons, I find that Mr Stefan’s claim of bullying is not sustained. I dismiss the application. An Order will be issued in conjunction with this decision.

DEPUTY PRESIDENT

Appearances:

Mr F. Stefan, on his own behalf, and Mrs S. Stefan, for the Applicant

Mr N. Femia and Mr B. Tipper, for the Respondents

Hearing details:

2017.

Adelaide.

1 September.

 1   Re Stefan Recommendation, Deputy President Anderson, 20 July 2017

 2   Re Stefan Statement and Amended Recommendation, Deputy President Anderson, 2 August 2017

 3 AB2016/715

 4   Notice of Discontinuance 6 March 2017

 5   Recommendation 20 July 2017 at [3]

 6   C2017/3017

 7   Advice, Platt C, 20 June 2017

 8   Exhibit R4 Attachment C

 9   Exhibit R4 Attachment G

 10 Section 789FF(1) FW Act

 11 Section 789FF(2) FW Act

 12   Exhibit R4 Attachment D

 13   Exhibit A7 Job Specification ‘Mushroom Grower’

 14   Exhibit R4 Attachment B

 15   Exhibit A5

 16   Exhibit A13, written warning 18 November 2016

 17   Exhibit R7

 18   Exhibit A8

 19   Exhibit R4 Attachment J

 20   Exhibit A8 paragraph 1

 21   Exhibit R9

 22   Exhibit R8

 23   Exhibit R7

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