[2021] FWC 1288

FAIR WORK COMMISSION

DECISION

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

Mr Gareth McCullough
v
Mr Perry Hearnden; Mr Scott Meyer; Ms Bridgid Herbert
&
GPC Asia Pacific Pty Ltd T/A Repco Australia
(AB2020/44)

COMMISSIONER HUNT

BRISBANE, 10 MARCH 2021

Application for an FWC order to stop bullying – new Persons Named nominated during application – findings made by Commission relevant to contested facts – on evidence not satisfied any person has behaved unreasonably towards applicant – evidence falsely given by applicant to the Commission – application dismissed – no stop bullying orders made.

[1] On 22 January 2020, Mr Gareth McCullough made an application pursuant to s.789FC of the Fair Work Act 2009 (the Act) to the Fair Work Commission (the Commission) for an order to stop bullying. Mr McCullough’s employer is GPC Asia Pacific Pty Ltd, trading as Repco Australia (the Employer Party/GPC/Repco).

[2] Mr McCullough seeks a remedy in response to alleged workplace bullying pursuant to Part 6-4B of the Act. It is not in dispute that Mr McCullough is an eligible worker to bring a claim under this jurisdiction.

Original application

[3] Mr McCullough is employed in the role of Automotive Parts Interpreter (API), based in a Repco store/branch at Kippa-Ring, Queensland. The application filed by Mr McCullough in the Commission on 22 January 2020 alleged that he had been subjected to bullying by two of his co-workers at Repco’s Kippa-Ring branch, being:

• Ms Amanda Whitehead, Store Manager; and

• Mr Jethro Harvey, Customer Sales and Service Representative.

[4] On 9 March 2020, I convened an in-person conference between the parties to the original application. At the conference GPC confirmed that an internal investigation would be conducted into the allegations raised by Mr McCullough in the original application. Mr McCullough was on unpaid leave at this time.

[5] GPC’s internal investigation was completed on 1 May 2020. A letter setting out the outcomes from the internal investigation was provided to Mr McCullough, as below:

“1 May 2020

Mr. Gareth McCullough
Repco Kippa Ring
By email to [redacted]

Dear Gareth

Re: Outcome of GPC Asia Pacific investigation into bullying complaints and next steps

I refer to your application for an order to stop bullying (Application) filed with the Fair Work Commission on 22 January 2020, and the Conference before Commissioner Hunt in which we both participated on 9 March 2020 (Conference).

At the Conference, it was agreed that GPC Asia Pacific (GPC) would investigate the allegations of bullying made by you as set out in the Application (Allegations) and would provide you with findings following this investigation.

GPC's investigation is now complete. I set out below the findings made, on the balance of probabilities by GPC in respect of each of the Allegations. In making these findings, GPC has considered all relevant material available to it, in particular:

• the information you provided in writing and in our initial fact-finding meeting with you on 4 February 2020, which allowed GPC to understand the specific content of each Allegation;

• our investigation meetings held with team members named by you as relevant to each Allegation;

• your responses provided in response to GPC's preliminary view of the allegations in our meeting on 3 April 2020; and

• your further written responses in respect of the Allegations provided by email on 9 April 2020.

After careful consideration of all of the information we have to hand, please see below GPC's findings in respect of each Allegation. We apologise for the delay in providing these findings, such delay having arisen due to the unanticipated impact of COVID-19 on GPC's ordinary business operations.

Allegation 1 – Illegal Broadcast of recording made in the workplace.

The Allegation made by you is that, on 26 January 2019, Mr Jethro Harvey, then Customer Sales & Service representative, recorded you making comments while at work in the Repco Kippa-Ring store, with the recording subsequently being broadcast to other employees without your consent.

GPC finds this allegation to be unsubstantiated.

GPC has found, on balance, that there is insufficient evidence to support a finding that such a recording was ever made by Mr Harvey. Further, 5 of the 6 team members interviewed by GPC in relation to this matter (as nominated by you) have indicated they have no knowledge of any such recording.

We note that, even if GPC's factual findings in respect of this Allegation were incorrect, Mr Harvey has ceased employment with GPC effective 8 March 2020. To the extent you have expressed concern in your Application about being the target of bullying by Mr Harvey, even if it were accepted that such bullying had ever occurred (which has not been found by GPC), GPC considers that there is no risk of any such bullying at work continuing in future given the cessation of Mr Harvey's employment.

Allegation 2 - “Mid Life Crisis” note made by Amanda Whitehead on Invoice and directed at you

This Allegation made by you is that, on or around 19 December 2019, Ms Amanda Whitehead, then Store Manager, Kippa-Ring, recorded the comment "MID LIFE CRISIS????" on an invoice with the comment being directed by Ms Whitehead at you.

GPC finds this allegation to be unsubstantiated.

GPC accepts that, on 19 December 2019, an invoice was generated which contained the comment "MID LIFE CRISIS????". However, GPC finds that the comment stemmed from a conversation between Ms Whitehead and the customer named on the invoice. GPC has therefore determined, on balance, that the comment was intended to be directed towards that client, based on his conversation with Ms Whitehead.

We note that, even if GPC's factual findings in respect of this Allegation were incorrect, Ms Whitehead has ceased working at the Kippa-Ring branch as of 6 April 2020. To the extent you have expressed concern in your Application about being the target of bullying by Ms Whitehead, even if it were accepted that such bullying had occurred (which has not been found by GPC), GPC considers that there is no risk of any such bullying at work continuing given the cessation of Ms Whitehead's engagement at the Kippa-Ring branch.

Allegation 3 – Sick Leave Entitlements deducted by Ms Whitehead without justification

This Allegation is that your sick leave entitlements have been deducted without justification or explanation by Ms Whitehead. Specifically, you allege that sick leave was deducted on 10 January 2019, 17 January 2019 and 22 January 2019 without your permission. You have alleged that such deduction is not consistent with your personal records of time worked by you over these days.

GPC finds this allegation to be unsubstantiated.

GPC's records indicate as follows:

1. on 10 January 2019, you were absent from work for 4 hours, and 4 hours sick leave has been deducted. GPC's enquiries into this matter have confirmed that: a. you were dropped at hospital by Mr Kilburn at approximately 9:00 am; and

b. Mr Harvey brought you back to work at approximately 1:00 pm and, after taking a 30-minute lunch break, you recommenced work.

GPC therefore considers the deduction of 4 hours sick leave to be entirely consistent with your absence from work on this day;

2. on 17 January 2019, you left work for an eye appointment at approximately 2:00 pm and did not return to work. Your absence of 2.5 hours was therefore deducted from your sick leave. GPC considers this deduction to be consistent with the explanation of your absence as recorded; and

3. on 22 January 2019, you left work at approximately 1:50 pm to attend to a further matter in relation to your eye, being a non-standard appointment relating to your lenses/drops which needed to be checked. GPC's records indicate that you did not return to the workplace. As such, 2.6667 hours has been deducted from your sick leave as a pro rata reduction reflecting your departure at 1:50 pm. GPC considers this deduction to be consistent with the explanation of your absence as recorded.

While you have supplied your personal record of hours worked which you suggest is accurate, GPC is not prepared to accept your personal record as the preferred indication of your hours of work. There is no evidence to suggest that your handwritten record is a contemporaneous record of time actually worked. Further, to the extent you request in your written response of 9 April that GPC provide you with medical certificates to substantiate your absence on each of the abovementioned days, GPC does not consider such a request to be reasonable. The fact that no medical certificates may have been provided by you is in no way determinative of whether or not you were absent on the abovementioned dates and, in any event, has no bearing on the question of whether or not Ms Whitehead engaged in conduct towards you which constituted bullying, which is the central issue for determination in GPC's investigation.

Notwithstanding the above, if you do not wish for the abovementioned absences to be deducted from your sick leave, GPC is prepared to reverse these entries and instead treat the time as leave without pay, which will be reflected in the next pay run. Please confirm if you would like this action to be taken.

Again, we note that even if GPC's factual findings in respect of this Allegation were incorrect, Ms Whitehead has ceased working at the Kippa-Ring branch. To the extent you have expressed concern about being the target of bullying by Ms Whitehead, even if it were accepted that the conduct the subject of this Allegation constituted bullying (which has not been found by GPC), GPC considers that there is no risk of any bullying at work continuing given the cessation of Ms Whitehead's engagement at the Kippa-Ring branch.

Allegation 4 – Motor Vehicle

This Allegation is that, on 4 December 2019, Ms Whitehead requested that you provide the company ute used personally by you for the purpose of performing deliveries while you were off sick. You have alleged that the manner in which this vehicle was subsequently returned to you was unreasonable.

The facts of this Allegation as alleged by you are as follows:

1. on 10 December 2019, Ms Whitehead, accompanied by Mr Sean Allen, collected the ute from your residence;

2. on 13 December 2019, you reminded Ms Whitehead that you would require the ute returned to you by the morning of 16 December 2019, to which Ms Whitehead responded that the ute was required by the Equipment Department to perform deliveries; and

3. the ute was subsequently not returned to your residence. Instead, you were required to make your way to the airport to collect the ute in your personal time.

GPC finds this allegation to be substantiated.

GPC accepts that you were required to collect the ute from the airport on 18 December 2019. GPC has also determined that this requirement was unreasonable in the circumstances, albeit that it arose from a genuine need for use of the vehicle by the business.

While this Allegation has been substantiated on the facts, GPC has found that this conduct did not constitute bullying of you as that term is defined in the Fair Work Act 2009, given that:

1. while it was unreasonable that the vehicle was left at the airport where you were required to collect it rather than it being returned to your house, this arose due to a lack of understanding of your entitlement to use of the vehicle to and from work, rather than an intentional act by any individual or group of individuals which was unreasonable towards you;

2. even if it were accepted that leaving the vehicle at the airport constituted unreasonable behaviour by a specific individual or group of individuals towards you, there is no evidence to indicate that this behaviour has been repeated; and

3. it is not apparent that the behaviour has created any risk to your health and safety.

Following further discussions clarifying your entitlement to a use of a GPC vehicle, which is a unique arrangement amongst GPC staff members, I confirm that you have use of the vehicle to and from work, subject to the operational needs of the business. Where the company may not be able to extend use of the vehicle to you due to operational needs, the business will arrange alternate suitable methods of travel to and from work.

The vehicle has had a roadworthy inspection completed on 24 April 2020. As a result of that inspection, the passenger seat will be replaced and the roof lining repaired. Other than this the vehicle has been assessed as in good road worthy condition. Should there be further concerns with the vehicle, these should be raised with your line manager as they arise.

Outcome

GPC's investigation has found 1 of the 4 Allegations made by you to be substantiated on the facts.

GPC has not found any bullying conduct to be substantiated. Further, to the extent you have expressed concern about the conduct of both Mr Harvey and Ms Whitehead towards you, GPC has found no conduct by either that would constitute bullying as defined by the Fair Work Act. Further, with the departure of Mr Harvey from the business and Ms Whitehead no longer being engaged at the Kippa-Ring branch, GPC does not consider there to be any continued risk of bullying in future.

Your further enquiries and next steps

In your questions provided on 9 April 2020, you have sought an explanation as to why both Mr Harvey and Ms Whitehead have both ceased work at the Kippa-Ring store. The terms and conditions of the exit of both Mr Harvey and Ms Whitehead remain confidential and will not be disclosed.

As to your concern that you may be required to interact further with Ms Whitehead over the phone in future, you are reminded that you are able to raise concerns through any of GPC's resolution processes, including speaking with the person directly, escalating your concerns to your line manager or one up manager and raising your concerns through the company’s complaints resolution processes.

GPC now considers the matters raised by you in the Allegations to be resolved. We thank you for your participation in the matter and look forward to your continued engagement as a valued member of the team at the Kippa-Ring branch.

Regards

Bridgid Herbert
People & Culture Project Manager”

[6] On 16 June 2020, I convened a telephone conference between the parties to the original application. At the conference it was confirmed that Mr Harvey and Ms Whitehead no longer performed work at Repco’s Kippa-Ring store. At that time it was understood that they performed work at Repco’s Enoggera store. As Mr Harvey and Ms Whitehead would no longer work with Mr McCullough, I informed Mr McCullough that it would be unlikely an order could be made to stop bullying as there is no risk that he will continue to be bullied at work by them within the meaning of s.789FF(1)(b)(ii) of the Act (if, in fact he had been bullied by them). It was, therefore, appropriate both Mr Harvey and Ms Whitehead be removed as Persons Named to the application.

Amended application

[7] At the conference on 16 June 2020, Mr McCullough advised he wished to proceed with his application, making an amended application citing other Persons Named against whom bullying is alleged. On 23 June 2020, Mr McCullough filed an amended application, listing Persons Named to include:

• Ms Bridgid Herbert, People and Culture Project Manager;

• Mr Perry Hearnden, Area Manager; and

• Mr Scott Myers, Store Manager.

[8] Following a directions hearing of 24 July 2020, I issued directions for the filing of materials in preparation for hearing of the amended application against the newly nominated Persons Named.

Hearing

[9] The amended application was heard in-person in Brisbane on 18 August 2020 and 19 August 2020, and by telephone on 25 August 2020.

[10] Mr McCullough appeared for himself, giving evidence in support of his application. Ms Pamela Frostick, Mr McCullough’s mother attended as his support person.

[11] Mr Adam Battagello, Senior Associate of Lander and Rogers was granted leave pursuant to s.596 of the Act to appear for the Employer Party and Persons Named. At the commencement of the hearing Mr Myers was not in attendance. I was informed it was because the store was “busy.” I directed he attend as soon as possible, and he did so by 11:30am. Ms Herbert and Mr Hearnden attended at the commencement of the hearing.

[12] On application of Mr McCullough, I ordered the below persons attend the hearing to give evidence:

• Ms Amanda Whitehead, Store Manager;

• Mr Peter Ryman, Zone General Manager; and

• Mr Sean Allen, Customer Sales and Service Representative.

[13] On 17 November 2020, I received correspondence from Mr Battagello that Ms Herbert ceased employment with Repco on 13 November 2020 following her resignation. It is clear that an order to stop bullying is unable to be made against Ms Herbert given she no longer works with Mr McCullough.

Relevant legislation

[14] A worker who reasonably believes that he or she has been bullied at work may apply to the Commission for an order to stop bullying. Section 789FC of the Act provides:

“Application for an FWC order to stop bullying

(1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.

(2) For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force.

Note: Broadly, for the purposes of the Work Health and Safety Act 2011 , a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.

(3) The application must be accompanied by any fee prescribed by the regulations.

(4) The regulations may prescribe:

(a) a fee for making an application to the FWC under this section; and

(b) a method for indexing the fee; and

[15] Section 789FD of the Act sets out when a worker has been bullied at work, as below:

“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.”

[16] The circumstances in which the Commission may make orders to stop bullying is set out in s.789FF of the Act, as produced below:

“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.

(2) In considering the terms of an order, the FWC must take into account:

(a) if the FWC is aware of 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.”

Mr McCullough’s evidence

[17] Mr McCullough gave evidence by way of written witness statements and oral evidence in these proceedings. In his written materials, Mr McCullough provided the below evidence.

Mr McCullough’s role at Kippa-Ring

[18] Mr McCullough stated that the outcome of a previous anti-bullying application before the Commission, being matter AB2017/617, resulted in him accepting a transfer to Repco’s Kippa-Ring store from Repco’s Enogerra store. I note that this was a negotiated outcome before a staff conciliator of the Commission, and not as a result of a decision or recommendation of a member of the Commission.

[19] After what he described as “a short honeymoon period at Kippa-Ring,” Mr McCullough says “cultural” issues began to surface, including:

(a) unpaid overtime;

(b) non-compliance with the outcome reached in matter number AB2017/617 in not allocating him a half-day Saturday shift once per fortnight, which has resulted in financial pressure, despite continuous ignored requests to Mr Hearnden and Ms Herbert;

(d) sick leave entitlements removed without his permission; and

(e) an inappropriate comment made by Ms Whitehead on an invoice.

[20] Mr McCullough stated that he had witnessed a gradual reduction in his income since commencing at Repco’s Kippa-Ring store in December 2017, despite the agreement reached in case number AB2017/617 stating he would receive the “same pay and conditions.”

[21] The ‘agreement’ referred to by Mr McCullough about matter AB2017/617 is a Statement of Outcome, made on or around 8 January 2018, as below:

“Statement of Outcome

Case No: AB2017/617
Applicant: Mr Gareth McCullough
Employer/Principal: GPC Asia Pacific
Parties named in application: GPC Asia Pacific; Mr Daniel Rice

-------------------------------------------------------------------------------------------

Application made to the Fair Work Commission (the Commission) under s.789FC of the Fair Work Act, 2009 (the Act) to stop bulling at work.
The employer/principal and parties named in this application deny the allegations.

Mediation was held by telephone on Insert Date
Parties in attendance at the mediation:

The parties reached an agreement on the following basis:

• Respondent will provide a relocation to a new location outside the John Ogden’s region (which is acceptable to the Applicant – same pay conditions and within) by 22 December to formal

• Continue with Applicant’s current employment arrangement at Kippering until that time

• Provide management training and counselling for PN

• Parties to advise FWC by 22 December whether the matter has been resolved

When the terms of the agreement are finalised the applicant can file the attached Form F50, Notice of Discontinuance or advise the Commission by email or telephone that the file can be closed.”

[22] Mr McCullough stated that his API role in the Repco store no longer seems to exist, contrary to the prior agreement reached in the Statement of Outcome. He stated that while he is employed as an API, he considers that it looks more like a Retail Sales Assistant, performing full-time sales on the retail counter. He stated that he has worked with a number of API’s and none of them have worked full-time on the front retail counter of a branch.

[23] On this issue, Mr McCullough stated the following:

“Following an in-person appearance at the Fair Work Commission by all parties on March 9th 2020, after it was made clear by Commissioner Hunt that my employer could dismiss me without notice for three months of continual sick leave, it was agreed that it was in my best interests to return to work at the Kippa-Ring Branch. On March 11th 2020 I returned to work at the Kippa-Ring Branch to discover my desk had been dismantled and my chair was missing and I was now to fill the role of Retail Sales Assistant on the front counter, a role I have carried out with determination and success since that time. However I wish to return to the employment arrangement mentioned by Jessica Smith in Exhibit B and which was a key requirement in the Statement of Outcome in matter number AB2017/617.”

[24] He says he has been victimised because to effectively carry out his role as an API he requires a chair, desk, computer and phone, which have always been made available to him since his return to Repco in mid-2015.

The subcontracted driver direction

[25] Mr McCullough stated that on 5 May 2020, Mr Myers instructed a subcontracted delivery driver not to speak to him. When the subcontracted delivery driver asked Mr Myers for the reason, Mr McCullough understands Mr Myers replied to her that she distracts him. Mr McCullough’s evidence is that the subcontracted delivery driver was not given this instruction in relation to any other Repco employee, and that the instruction constitutes singling or freezing him out.

[26] Mr McCullough’s evidence was that he engages with all subcontracted delivery drivers in a similar manner and for similar timeframes.

13 May 2020 incident

[27] Mr McCullough said that on 13 May 2020, Mr Myers left the store at 10:30am, leaving Mr Michael Georgio, the Retail Team Leader to answer the phone. Mr McCullough’s evidence is that this was the job that he previously filled. However, Mr Myers instead instructed Mr McCullough to remain on the counter. Mr McCullough stated this constitutes belittling and humiliation.

[28] It was his evidence that in assigning a Retail Team Leader (Mr Georgio) to a task better suited to an experienced API (Mr McCullough), Mr Myers’ behaviour in obtaining the opinions of both Mr Dean Andrew and Mr Sean Allen indicates to him a conspiracy of harm, ganging up, freezing out and ostracism.

22 May 2020 incident

[29] On 22 May 2020, Mr Myers threw an oil filter at the shop window in frustration, shattering a window. Mr McCullough stated that Mr Myers asked Mr Georgio to tell Mr Hearnden that the window was always broken. Mr Myers told Mr McCullough that “the filter slipped,” which Mr McCullough says is false and constitutes intimidation.

[30] Mr McCullough stated that this incident has caused anxiety for him and other staff members, as they feel an object may be thrown at them. He asserted that the incident has been reported to Mr Hearnden with no clear action taken.

11 June 2020 incident

[31] On 11 June 2020, whilst Mr McCullough was upstairs in the store replacing some stock, he asked Mr Dean Ferris if he needed anything while he was up there. Mr McCullough says Mr Dean Andrew unnecessarily interrupted saying, “Gareth, get back to the front counter.” Mr McCullough responded, “Be quiet.” It is Mr McCullough’s evidence that Mr Andrew then called upon Mr Myers to assist in confronting Mr McCullough, resulting in a heated exchange.

[32] Mr McCullough’s evidence is that during the heated exchange, Mr Myers raised his hand within two centimetres of his face. He requested twice that Mr Myers’ hand be lowered. Mr McCullough considers this to be physical bullying and intimidation. He stated:

“Scott placing his hand too close to my face is a concern due to how easily he could strike me from such a close distance. It is of great concern that Scott chose to raise his hand to me in a location in the Branch that is not monitored by security cameras. On the same day, I informed Perry Hearnden of this exchange and Scott’s incident in breaking the shop window. To my knowledge, no action has been taken to address these issues.”

Video recording

[33] Mr McCullough gave evidence that he has been recorded in the workplace by Mr Harvey without his permission and the recording has been broadcast illegally to other staff members. Mr McCullough stated GPC’s investigation into this matter claims this to be unsubstantiated. He stated that no action has been taken to address this, nor has action been taken to prevent this happening in the future.

Company vehicle

[34] He stated that he has had a company vehicle “taken” from his possession. Mr McCullough has also been “forced” to collect the company vehicle from a location that has no access by public transport, that is, the airport. He stated that upon collection of the vehicle, it was in an unroadworthy/damaged and untidy state.

Health and safety in the store

[35] Mr McCullough gave evidence that he has been witness to the following events in the workplace:

(a) unacceptable treatment of other staff members and contractors by managers;

(b) a complete lack of support from the human resources department for not only his matters, but matters raised by other staff;

(d) subcontractors being hired over existing Repco staff;

(e) staff performing overtime as requested, without payment;

(f) staff members and contractors instructed to wash and clean the manager’s car;

(g) the previous Store Manager instructing an employee to fit an audiovisual component to her personal car during work hours; and

(h) a previous manager throwing stock at another staff member.

[36] Mr McCullough stated that the health and safety of Repco’s workers is put at risk by the method used by Mr Myers when dealing with the delivery stock. Mr McCullough says that Mr Myers places stock delivery totes in aisles making it unsafe for workers to access the aisles. Photographs were included in Mr McCullough’s evidence.

Formal complaints and Repco’s HR department

[37] Mr McCullough stated that on 19 February 2020, a number of formal complaints were sent by him to Ms Herbert. On 3 April 2020, a meeting was held to discuss the results of GPC’s findings of his formal complaints. On 9 April 2020, Mr McCullough provided a further reply to GPC’s findings, but he received an automated reply from Ms Herbert that she was on leave and no further contact was made by Ms Herbert.

[38] Mr McCullough stated that examples of GPC’s HR department’s “incompetence” are evident in his materials.

[39] Mr McCullough says he has developed health issues relating to GPC’s lack of adherence to its own anti-bullying policy.

Automated replies to correspondence with HR department

[40] Mr McCullough gave evidence that during the investigation of his formal complaints, Ms Herbert was “difficult” due to her ongoing out-of-office email replies to his attempts to contact her. This caused Mr McCullough to feel anxious and raised concerns as to whether his serious matters were being dealt with and awarded the necessary attention.

Return to work at Kippa-Ring store and the speeding ticket

[41] On this issue, Mr McCullough stated the following:

“Upon my return to work, a meeting was sought with me by HR and Perry Hearnden to discuss a speeding fine incurred by my company vehicle. Prior to this meeting that was held on Wednesday, April 22nd 2020, I had requested proof that I was driver at the time as my car was used on a daily basis by various other employees, to which I received a doctored delivery run sheet with the registration number of my vehicle hand-written on the run sheet. See EXHIBIT F. A follow-up meeting regarding this matter was held on Wednesday, April 29th 2020 at which no agreement could be reached in relation to this speeding fine.” [original text]

Mr McCullough’s submissions and further evidence

[42] Mr McCullough submitted that Ms Whitehead and Mr Harvey being “removed” from the Kippa-Ring store assisted his return to work in early 2020, as it removed the “toxic atmosphere” within the branch created by their behaviour. However, this was only for a short time as Ms Whitehead was replaced by an interim manager, Mr Myers, described by Mr McCullough as somebody with “similar weaknesses in communication style, diplomacy and management skills.”

Mr McCullough’s role

[43] Mr McCullough submitted that what he has endured in his time working at the Kippa-Ring branch is a gradual and deliberate erosion of his income and his role.

[44] Mr McCullough noted the outcome reached between the parties in matter AB2017/617 states “acceptable to the applicant - same pay conditions and within.” Whilst working at the Enoggera store, he was working one Saturday per fortnight and receiving overtime payment. Under Ms Whitehead at the Kippa-Ring store his Saturday shifts were reduced to one every three weeks, then one per month, then to no Saturday shifts at all without any explanation from Ms Whitehead other than, “I have casuals to look after.”

[45] Mr McCullough stated that this has negatively affected his income and ability to support his family. He submitted that if the branch could not accommodate him working a half-day shift every second Saturday, a transfer to the Kippa-Ring branch from Enoggera should never have been considered by the company.

[46] Mr McCullough further noted the agreed outcome also states, “to continue with applicant’s current employment arrangement at Kippa-Ring.....”. It was submitted that at no stage has GPC ever complied with this outcome, demonstrating a contempt of the processes of the Commission and a complete lack of respect for the outcome reached with the assistance of the Commission.

[47] Mr McCullough submitted that none of the people who gave evidence stated under oath in these proceedings that they were aware of the Statement of Outcome in matter AB2017/617. He considers this unprofessional conduct by all Persons Named. He submitted that the failure of the People and Culture Team to advise relevant colleagues of the outcome of matter number AB2017/617 shows a distinct lack of due diligence and professionalism. He submitted that the Commission should find that this “misunderstanding” is unjustifiable and has led to bullying behaviour towards him.

[48] Mr McCullough submitted he made a genuine attempt to return to work and continue to be an effective employee. He submitted that GPC had not made an attempt to ensure his transition from the Enoggera branch to the Kippa-Ring branch was smooth. He said that the HR Manager at the time, Ms Jessica Smith failed to conduct a welfare check following the completion of his transfer.

[49] Mr McCullough submitted that upon his return to the Kippa-Ring branch on 11 March 2020, two days after the first conference before me, Ms Whitehead asked him to work on the front counter. He noted that during his absence his workstation had been removed. He submitted that there was no reasonable explanation for its removal.

[50] He stated that under the management of Ms Whitehead his role had now changed from API to Delivery Driver to Retail Sales Assistant. He believes this was an attempt to humiliate him. It was submitted that whilst at the Enoggera branch has role was 98% trade and 2% retail. Since his transfer to the Kippa-Ring branch he stated that his role had changed from 75% trade and 25% retail to 30% trade and 70% retail without any communication, either written or oral. Mr McCullough conceded that he was content to perform deliveries to customers, to remove himself from the store to what he considered to be the toxic environment existing at the Kippa-Ring branch.

[51] It was submitted his hours of work have been adjusted on two occasions without written notification. It was submitted this change occurred without any consultation with Mr McCullough as required per section 8.2 of his employment contract. Mr McCullough says this is further indication of the toxic and unreasonable environment in which he was working.

[52] Mr McCullough submitted that under Mr Myers’ management, his role has continued to erode, as it did under the management of Ms Whitehead. He submitted that their managers, titled Area Managers have also allowed this to happen. He named them as having been, over time, Mr Jeff Anderson, Mr Brad Hall and Mr Hearnden. He submitted that pursuant to s.789FF(1)(a)(ii) of the Act, this constituted a group of individuals who repeatedly behaves unreasonably towards the worker. He considers that they have all engaged in continued and sustained bullying behaviour towards him.

[53] Mr McCullough submitted that he has made it clear during these proceedings that despite working approximately 100 hours of unpaid overtime, sick leave was still deducted from his accruals without any consultation with him.

Speeding Ticket

[54] On 25 February 2020, Mr McCullough received an email from Ms Sasha Porter, Fleet Support Officer claiming he was the driver of a vehicle pictured on a speeding fine received by GPC. During his email exchange with Ms Porter, she mentioned Ms Whitehead had indicated to her that he was driving the vehicle in question. Considering the state of the working relationship between Ms Whitehead and himself at the time, Mr McCullough felt it reasonable to request more than Ms Whitehead’s word that he was the driver.

[55] Mr McCullough was subsequently sent a copy of a document that had been altered by Ms Whitehead as “irrefutable proof” that he was the person driving the vehicle. Ms Whitehead did this without attempting to clarify with Mr McCullough that he was driving the vehicle at the time the speeding ticket was recorded on 7 November 2019. He asserted that the vehicle is consistently used by other staff without documentation being completed.

“Midlife crisis” invoice

[56] Mr McCullough submitted that the invoice on which Ms Whitehead put the comment “midlife crisis” is indicative of a management culture bereft of accountability, proper supervision, and respect for employees or the company.

Ms Herbert

[57] On 19 February 2020, Mr McCullough emailed a list of formal complaints to Ms Herbert. A telephone conference was held on 3 April 2020. This was some six weeks after his formal complaints were lodged and following ongoing difficulties that he experienced making contact with Ms Herbert.

[58] Mr McCullough believes there was an undue delay in the processing of his complaints. He submitted his evidence demonstrates a distinct lack of communication and difficulty maintaining communication with Ms Herbert. He submitted that Ms Herbert’s refusal to engage with his concerns is a form of emotional abuse and disrespect.

[59] Prior to Ms Whitehead leaving the Kippa-Ring branch, Mr McCullough made repeated inquiries to Ms Herbert requesting a transfer to another branch. He felt this was the best way to resolve the substantial difficulties he had and was still enduring under Ms Whitehead’s management. The only reply he received from Ms Herbert regarding a transfer was a copy of weekly job ads.

[60] Mr McCullough submitted that he has stated clearly that it is impossible to facilitate his own transfer. Continually responding to his request for transfer by emailing him internal job vacancies and attaching an application form for a new role is unreasonable, particularly when the only full-time position available in any capacity at one point was in Mount Isa. On numerous occasions he attempted to explain this to Ms Herbert, but he asserted that he has been ignored. He submitted that this indicates that Ms Herbert was engaging in a “tick-and-flick” exercise in forwarding Mr McCullough the internal job vacancies, therefore showing a distinct lack of commitment in assisting GPC staff from a human resources perspective.

[61] It was submitted that Ms Herbert’s lack of cooperation in assisting Mr McCullough to obtain a transfer away from the contemptuous and bullying behaviour of Ms Whitehead and Mr Harvey, in conjunction with her poorly handled investigation into his formal complaints, has been unreasonable and grossly unfair. As a People and Culture Manager, Ms Herbert is in a position to facilitate a transfer. As an API it is not part of his role to arrange a transfer for himself. Requesting a transfer from a People and Culture Manager and Area Manager is not contemptuous, patronising or entitled, he submitted. Mr McCullough repeatedly sought updates on the status of his transfer because he was eager to return to work in early 2020.

[62] It was submitted that the record of meeting of 3 April 2020 prepared by Ms Herbert should not be accepted as an accurate record due to the investigation being procedurally unfair and lacking integrity, which is why Mr McCullough refused to sign off on the paperwork. He submitted that despite his well-founded protests, Ms Herbert closed the investigation.

[63] It was submitted that the above described, combined with consistent out-of-office replies from Ms Herbert, is repeated behaviour which is unreasonable, leaving Mr McCullough to feel victimised and ignored. Mr McCullough believes at no stage has he been afforded a procedurally fair process. He asserted that his right to fair and impartial decision-making has been violated, as at no stage has Ms Herbert shown any concern for Mr McCullough’s welfare.

Allegation 1

[64] It was submitted that Ms Herbert’s failure to substantiate Allegation 1 (Mr Harvey’s recording and “illegal broadcast” thereof), despite being provided with a signed statutory declaration from Ms Wendy Lawson stating that the recording had been played to her, has made Mr McCullough feel ignored and disrespected.

[65] When Ms Herbert was asked under cross-examination if she believed that the statutory declaration provided by Ms Lawson was fraudulent, she replied “not necessarily.” It was submitted this answer is grossly inadequate. When asked under cross-examination, “In your opinion would recording a work colleague and broadcasting it constitute humiliation, bad faith, a malicious prank and disrespect?” Ms Herbert answered, “It could do.”

[66] Mr McCullough submitted that despite being provided with a statutory declaration from an existing employee (which he suggests was extremely courageous) Ms Herbert still could not be convinced that Mr Harvey had made a recording of him and broadcast it. He submitted that this is both unreasonable and procedurally unfair. He put that any suggestion that could be made that he and Ms Lawson are engaged in some form of conspiracy is highly offensive and disrespectful. Mr McCullough stands by his opinion that Ms Herbert’s findings are disrespectful and victim-blaming.

[67] Under cross-examination Ms Herbert stated one of the persons interviewed was Ms Whitehead. Considering the circumstances, Mr McCullough does not consider this reasonable. At no point did Mr McCullough provide the name of Ms Whitehead to Ms Herbert as a person to be questioned in relation to his complaints. He submitted that the continual reference to “five individuals” who remain unnamed by the Employer Party is unreasonable.

Allegation 2

[68] Mr McCullough submitted Ms Herbert has failed to substantiate his complaint relating to the words “midlife crisis” being deliberately placed on an invoice by Ms Whitehead. Whilst it could not be substantiated that the comment was aimed directly at Mr McCullough, the fact that a manager felt secure in engaging in such an act and the lack of timely action taken to address this behaviour is of great concern to Mr McCullough. Comments such as this on a company invoice are unreasonable, he submitted.

[69] It was submitted that at no stage has Ms Herbert attempted to clarify with Mr McCullough that comments such as the words “midlife crisis” are not acceptable to place on customer invoices. The fact that Ms Herbert could not substantiate something that had actually occurred is another limb in a procedurally unfair process and illustrates a continued pattern of unreasonable behaviour toward Mr McCullough by Ms Herbert, it was submitted.

Allegation 3

[70] Mr McCullough submitted that he has stated clearly during this application that sick leave should not have been deducted due to the substantial hours he worked in-lieu.

[71] At no stage did Ms Whitehead communicate to Mr McCullough that she was deducting sick leave on the relevant dates and at no stage did payroll contact him to confirm he was sick on the relevant dates. It was submitted this process is open to abuse and lacks integrity.

[72] The lack of integrity in GPC’s contemporaneous records was the sole reason Mr McCullough commenced documenting his own hours of work, he said. He has stated under oath that his handwritten hours of work are contemporaneous. Mr McCullough submitted he has estimated one hour of travel to the Mater Eye Hospital at South Brisbane and not the Redcliffe Hospital, which is five minutes travel away from Kippa-Ring branch. Mr McCullough suggested that it appears that Mr Battagello is confused as to the two hospitals.

[73] Mr McCullough submitted it has been proven that errors were made by Ms Whitehead in relation to the amount of sick leave deducted.

Allegation 4

[74] Mr McCullough noted that on two separate occasions (10 and 27 December 2019) Ms Whitehead took possession of his company allocated vehicle. On neither occasion was the vehicle returned to the point of its collection. On 18 December 2019, Mr McCullough had to arrange a lift from his wife to collect his company vehicle from Eagle Farm. No public transport was available to gain access to his company allocated vehicle.

[75] It was submitted that the above described was unreasonable, unnecessary and inflammatory. Mr McCullough asked Ms Whitehead to supply him with a formal request for the keys to the vehicle, which was ignored. These complaints were eventually substantiated, however to his knowledge no action has been taken nor has any communication with him occurred to finalise this complaint.

[76] Mr McCullough submitted that the Commission should note that Allegation 4 was originally “partially substantiated” by Ms Herbert. Ms Herbert’s lack of understanding in regard to his entitlements as an employee displays a distinct lack of professionalism and thoroughness, he submitted.

Mr Hearnden

[77] Mr McCullough submitted that despite a pleasant working relationship with Mr Hearnden, Mr McCullough has felt ignored by Mr Hearnden because his consistent requests for assistance with the return of Saturday work and the return of his workstation have not been addressed. Mr McCullough understands the difficult position Mr Hearnden is in due to him being the third Area Manager to make an attempt at resolving issues arising from his employment at the Kippa-Ring branch. However, it was submitted that Mr Hearnden has contributed to the continued erosion of Mr McCullough’s role.

[78] Mr McCullough submitted that the main reasons for his communication with Mr Hearnden were:

• to have the original outcome in AB2017/617 complied with;

• to have his workstation returned; and

• to have his income returned to where it was prior to his arrival at Kippa-Ring.

[79] Mr McCullough noted that when queried on the return of his workstation, the only response given by Mr Hearnden was, “Ask Scott.” It was submitted that this answer is unproductive and displays an ignorance to the issue Mr McCullough is raising.

[80] It was submitted that the responses provided by Mr Hearnden in relation to Saturday shift work have been inadequate and have not contributed in any way to a positive outcome on the matter. No communication has been undertaken with Mr McCullough regarding Saturday work, even at this late stage of his application to the Commission. Mr Hearnden is in a position to assist him to reach a satisfactory outcome and has clearly refused to do so, it was submitted.

[81] Mr McCullough submitted the Commission should find that Mr Hearnden has behaved unreasonably towards him due to his poor communication on the issue of Saturday shifts and lack of desire to assist him. No explanation has been provided by anyone within GPC as to why casual workers are preferred over Mr McCullough.

[82] During the proceedings, Mr Hearnden claimed that Mr McCullough indicated to him that he did not wish to be involved in the investigation into Mr Myers throwing a filter at the shopfront window on 22May 2020. Mr McCullough refutes this based on the fact that he sent him a text message informing him of the incident. It was submitted that being the only person in the branch prepared to have a serious incident such as this addressed clearly indicates the level of powerlessness felt by other members of the staff at the Kippa-Ring branch. To this date, no communication has been conducted with staff of the branch as a group to reassure them that an incident of this nature will not be reoccurring.

[83] It was submitted that, again, Mr McCullough’s right to fair and impartial decision-making has been violated by Mr Hearnden.

Mr Myers

[84] Mr McCullough noted that Mr Myers arrived at the Kippa-Ring branch on 1 April 2020 and openly stated to staff that he was there to help out and would only be assisting in the branch for “about two weeks.” Mr Myers’ arrival at the branch on this date was unannounced by management. As of 31 August 2020, Mr Myers is still engaged as an interim manager of the Kippa-Ring branch. No communication has been forthcoming from management regarding the duration of Mr Myers’ appointment and who will be taking over as full-time manager. This has made it difficult for Mr McCullough to have matters such as Saturday work and the replacement of his workstation addressed.

[85] Mr McCullough submitted that on 5 May 2020 a subcontracted delivery driver, Alex, engaged by the Kippa-Ring branch revealed to him that Mr Myers had instructed her not to talk to him because she “distracted” him. It was submitted that Mr Myers has not instructed Alex to cease contact with any other staff, leaving Mr McCullough feeling singled out.

[86] It was submitted that at no stage should a manager have the power to decide which staff members can communicate with each other. He submitted that it is not possible for a workplace to function efficiently and harmoniously if such an instruction is given. Mr McCullough does not expect Mr Myers’ directions to be perfect or ideal. However, he definitely expects them to be clear, fairly judged and presented in such a way as to not have an adverse effect on the harmony within the branch.

[87] It was submitted that Mr Myers’ conduct in throwing an oil filter at the shopfront window causing it to smash is aggressive and intimidating and should not be accepted. Mr Myers stated at hearing that he would apologise to staff for his clearly unacceptable behaviour. Mr McCullough stated he is yet to receive this apology, nor is he aware that any staff member other than Mr Allen has received said apology.

[88] Mr McCullough submitted that the Commission should find that the role required to be filled in Mr Myers’ absence was more suited to Mr McCullough’s skill set, rather than Mr Georgio’s skill set (the Retail Team Leader). Dealing with trade phone calls is the key role of an API. It was submitted that less than 10% of phone calls received by the branch are of a retail nature; 90% of phone inquiries are trade-based.

[89] Mr McCullough submitted Mr Myers’ deliberately placing Mr Georgio in the position was humiliating and disrespectful to him. This decision increased the level of animosity between Mr Myers and Mr McCullough that was already at a level that was proving difficult to manage.

[90] Mr Myers stated at hearing that he had difficulty approaching Mr McCullough because he was “aggressive.” Mr McCullough submitted that when challenged on this statement, Mr Myers had no evidence to substantiate his claim.

[91] Mr McCullough submitted that at the hearing, Mr Myers indicated that he is not familiar with workplace health and safety laws and GPC’s workplace health and safety standards required within the branch. He asserted that Mr Myers consistently and deliberately places objects in aisles that make it unnecessarily difficult for staff to safely navigate their way around the workplace. Mr McCullough submitted that this behaviour of repeatedly stacking totes in aisles, in conjunction with other incidents previously mentioned, is part of a pattern of repeated and unreasonable bullying behaviour by Mr Myers and is contrary to “management action conducted in a reasonable manner.”

[92] It was submitted that whilst being questioned, Mr Myers’ answers were vague and difficult to understand. Mr McCullough also submitted that Mr Myers’ witness statement provided to the Commission is confusing and inconsistent. He submitted that the transcript clearly indicates that Mr Myers was “not a witness of candour but presented as awkward and frustrated.”

CCTV footage filed by Mr McCullough

[93] Mr McCullough submitted that the CCTV footage he filed in these proceedings was crucial to demonstrate a clear behavioural issue displayed by Mr Myers. During the hearing there was much discussion as to why Mr McCullough watched the footage and who he showed it to.

[94] As it turns out, Mr McCullough was not in the video other than at the very beginning, but he did consider it necessary to obtain a copy of it and record it. When he recorded it, he did so while watching it with Alex, the contract delivery driver and a customer named Cameron. He is heard exclaiming, “Here we go, this is going to be awesome.”

[95] In reference to Mr Georgio, he stated, “….another big gun” in what I consider to be a disparaging way. When I questioned Mr McCullough on this, he denied that what he said was said to disparage Mr Georgio. He now agrees the comments made by him on the recording were inappropriate. He stated that he didn’t think he was mocking them, nor was it derogatory.

[96] He stated in answering questions from me that he wasn’t trying to be funny. He has since apologised to Mr Allen for any disrespect for what is said by him in the recording.

[97] Mr McCullough admitted to having shown the footage to his mother, his wife and friends, plus having sent it to one other work colleague at another branch. He agreed during the proceedings that it was not appropriate for him to have shown the footage widely. He stated that he did so because he needed other people’s support and advice.

[98] In final written submissions, Mr McCullough stated that he had sent the footage to a colleague to demonstrate what GPC considers to be acceptable conduct from a Store Manager. I inquired if there were any disciplinary actions on foot relevant to Mr McCullough’s sharing of the footage. I was informed that there had been one meeting and it was being investigated. Mr McCullough stated that Mr Ryman had asked him to delete it and he did so in front of him. He is uncertain if all copies of the footage have been deleted.

[99] As to why Mr McCullough appeared excited by the video, he submitted that finding amusement in an incident by no means lowers the level of its magnitude. He submitted that the amusement was found in the foolish behaviour undertaken by Mr Myers.

[100] Mr McCullough stated that because Ms Herbert had not substantiated the allegation against Mr Harvey that he had made a recording, when he wanted to demonstrate to the People and Culture/Human Resources Department that Mr Myers had thrown an object whilst in store, he required a copy of the recording.

Conduct of Mr McCullough

[101] Mr McCullough strongly disagrees with the Persons Named and GPC’s suggestion that he treats people with aggression and contempt. I too informed Mr McCullough, having observed him in-person during the proceedings that he appeared to me to be patronising, condescending and aggressive at times, and he has no self-awareness.

[102] Mr McCullough stated that he is under immense pressure in the workplace. He stated that he is nervous and inexperienced in these proceedings. He submitted that “at times my loud and clear voice can be assumed as aggression, however, a number of Repco clients suffer from industrial deafness and appreciate my clarity.”

[103] Mr McCullough submitted that when an attempt is made to bully and belittle him in the workplace, he will confront it. He suggested that unfortunately, people who engage in this behaviour can confuse his reaction as aggression. Other than a “frivolous” complaint made by Mr Harvey, there have been no other complaints made in writing by staff about his conduct.

Summary

[104] Mr McCullough submitted in summary that a reasonable person would agree that the behaviour “referred to and proven” in his stop bullying application, having regard to the circumstances, would be considered as unreasonable and repeated behaviour which has left him feeling victimised, humiliated and intimidated.

[105] It was submitted that due to the inaction and procedurally unfair process by Ms Herbert and her department, intervention by the Commission was not only required but essential. Similar behaviour was engaged in by Ms Jessica Smith from the People and Culture Team which led to the Statement of Outcome in AB2017/617, he submitted.

[106] Mr McCullough believes that enough evidence has been provided to prove that bullying has occurred and reoccurred. He submitted that due to the positions held by the involved persons, it is possible for bullying to occur in the future. Mr McCullough listed the people, noting that not all are Persons Named in these proceedings, to include:

• Mr Tim Fergus and Mr Peter Ryman (Zone Managers);

• Mr John Ogden, Mr Jeff Anderson, Mr Brad Hall and Mr Perry Hearnden (Area Managers);

• Ms Jessica Smith, Ms Bridgid Herbert and their associates (People and Culture Team); and

• Mr Daniel Rice, Ms Amanda Whitehead, Mr Scott Myers (Branch Managers).

[107] It was submitted that none of the abovementioned people have been able to address proven behavioural issues made in Mr McCullough’s current and previous applications. The Statement of Outcome in AB2017/617, he believes, was “in his favour” due to the evidence he provided, from himself and other staff members. He submitted that the fact all persons cross-examined were not aware of this outcome is unacceptable and he suggested that there is a reluctance to take accountability and ownership by the persons mentioned above.

[108] Mr McCullough referred the Commission to the decisions of Amie Mac v Bank of Queensland Limited and Ors 1 and Ms SB2 in support of his application.

Orders sought

[109] Mr McCullough stated he seeks the following orders be made by the Commission:

“1. Reinstatement of leave entitlements that I used to address this behaviour.

2. For my income and conditions at the Kippa-Ring branch to match that of the Enoggera branch as stated in a prior outcome (AB2017/617).

3. An order to cease the bullying culture that clearly exists within the company.

4. An explanation in writing from Bridgid Herbert detailing what it is that I've done wrong in order to receive the treatment that I have outlined.

5. An independent investigation by a company of my choice into my formal complaints and the bullying culture within the company in general.

6. A safe working environment.

7. Evidence that the cultural problems existing within the company are being addressed.

8. For the company to pay me for lost wages that I have incurred since my transfer to the Kippa-Ring branch.

9. For the staff at the Kippa-Ring Branch to be addressed as a group in relation to Scott's behaviour.

10. To be treated as a human being and not as a number.”

Materials produced by Order of the Commission

[110] With respect to Mr McCullough’s allegation that sick leave had been improperly deducted by Ms Whitehead, I ordered the Mater Eye Clinic to produce the following:

“1. With respect to an alleged absence of Mr Gareth John McCullough [address redacted] from his employment at GPC Asia Pacific Pty Ltd trading as Repco because of attendance at possible appointments at Mater Eye Clinic on 10 January 2019, 17 January 2019 and 22 January 2019:

(a) Records and confirmation of all the attendances of Mr Gareth John McCullough at the Mater Eye Clinic in the period 10 January 2019 to 22 January 2019 inclusive;

(b) Approximate times and duration of any appointments upon a practitioner on these dates.”

[111] On 21 August 2020, Mater Services Brisbane Limited (Mater) produce certain materials, confirming appointments together with appointment progress notes of Mr McCullough on:

• 22 January 2019;

• 17 January 2019; and

• 10 January 2019 (noting he was treated at Redcliffe Hospital not Mater).

[112] Mater’s records relevantly provided Mr McCullough was in attendance as below:

“…..

17^th Jan, 2019 – Ophthalmology Clinic (Dr Neha Sharma)

• Arrived: 03:04pm

• Departed: 04:11pm

22^nd Jan, 2019 – Ophthalmology Clinic (Dr Graham Lee)

• Arrived: 02:47pm

• Departed: 04:50pm

…..”

Respondent’s evidence

Evidence of Mr Perry Hearnden

[113] Mr Hearnden made a witness statement and appeared and gave evidence at the hearing. He has been employed by GPC and its predecessor companies since 25 August 1978. His roles have included being a Store Manager and Area Manager. Since 1 January 2020, he has been the Area Manager responsible for 14 Repco stores within Queensland.

[114] Mr Hearnden’s day to day responsibilities include addressing HR issues as they arise, driving store sales and making budget. Each of the Store Managers within his area report to him. Mr Hearnden reports directly to Mr Peter Ryman, Zone General Manager.

[115] It is Mr Hearnden’s evidence that he does not believe he has ever acted inappropriately towards Mr McCullough. Before this matter he thought that Mr McCullough and he were on friendly terms, for example they would discuss upcoming Brisbane Broncos games over text. He stated that he is shocked that allegations have been made against him.

29 April 2020 meeting

[116] Mr Hearnden agreed he met with Mr McCullough on 29 April 2020 to discuss the speeding ticket issue, but denied that it occurred in the manner alleged by Mr McCullough. He stated that in late January 2020, he became aware of a speeding ticket having been issued to a GPC company vehicle for a speeding violation on 7 November 2019. The ticket was accompanied by a photograph of the rear of the vehicle displaying the registration number plate.

[117] Around late February 2020, Mr Hearnden had a conversation with the then Store Manager at Kippa-Ring, Ms Amanda Whitehead, as to who may have had use of the vehicle. The effect of the conversation with Ms Whitehead was that the vehicle was the one which Mr McCullough used as personal transport to and from work in accordance with GPC’s Motor Vehicle Policy. Mr Hearnden also obtained a Fringe Benefits Tax Form signed by Mr McCullough which indicated that he had private use of the vehicle in question.

[118] It is Mr Hearnden’s recollection that from around early December 2019 to early March 2020, Mr McCullough was on a period of leave, and therefore he did not progress the matter further. Around early April 2020, he accessed Repco’s online record-keeping system to review the delivery records for the Kippa-Ring store on the day that the fine was incurred. Repco drivers must complete proof of delivery records showing deliveries performed on a given day. These records include:

(a) the name of the individual employee who has prepared the record;

(b) the date and departure time from the store; and

[119] It is Mr Hearnden’s evidence the records he located indicated that there were three drivers performing deliveries on 7 November 2019. The names recorded on the top right corner of the records indicated that one had been completed by Mr McCullough for that day. Mr Hearnden compared the account names recorded on the proof of delivery records and it appeared Mr McCullough was the only driver whose deliveries took him in the area of the speed camera on the day the ticket was issued.

[120] On 22 April 2020, Mr Hearnden spoke with Ms Jennifer Preston, People and Culture Business Partner, seeking her assistance in further investigating the matter. The same day he called McCullough and had a conversation to the following effect:

Mr Hearnden:	“Hi Gareth, I’m giving you a call regarding a speeding ticket Repco has received – I have double checked the manifests and it looks like you were running deliveries in the area on that day”
Mr McCullough:	“We both know it was probably me. How about we go halves? I don’t want to go through HR, let’s sort it out between you and me.”
Mr Hearnden:	“I don’t know if we’ll do that, but I’ll come back to you. I will also send you a letter shortly confirming that we need you to come in tomorrow afternoon to talk about this.”

[121] Mr Hearnden stated the proposal made by Mr McCullough was unusual, and he was not comfortable making a decision on the matter without first speaking to his manager, Mr Ryman. Immediately after the discussion with Mr McCullough, he called Mr Ryman, who advised that the business was not prepared to pay any part of a fine incurred by a staff member due to speeding.

[122] On 22 April 2020, Mr Hearnden sent Mr McCullough a letter confirming the arrangements for a meeting on 23 April 2020. On 23 April 2020, he met with Mr McCullough and his union representative at GPC’s offices. A record of discussion was prepared during the meeting.

[123] At the meeting, Mr Hearnden recalls Mr McCullough stating words to the effect that it would have been hard for him to have departed the store at 11:06am as indicated on the proof of delivery record, completed his deliveries and made it to the area of the speed camera by 11:20am when the fine was incurred. Mr Hearnden wanted to test this himself to determine if it was possible, or if it would indicate that Mr McCullough must have been in another vehicle on the day in question and was not responsible.

[124] On 29 April 2020, Mr Hearnden attended the Kippa-Ring store and left at 10:00am. He went to each customer site which the proof of delivery record indicated Mr McCullough had attended on 7 November 2019. At each site he waited approximately two minutes to take into account the time to drop a delivery. He then drove to the location of the speed camera and found that he was able to do so within a window of 14 minutes, being the same amount of time between when Mr McCullough left the Kippa-Ring Store on 7 November 2019 and when the fine was incurred.

[125] On 29 April 2020, Mr Hearnden and Ms Preston met in person with Mr McCullough and his union representative to further discuss the speeding ticket. A record of discussion was prepared during the meeting.

[126] Mr Hearnden found Mr McCullough’s conduct during the meetings on 23 and 29 April 2020 to be “very frustrating.” It is his evidence that Mr McCullough would vary between comments which effectively admitted his responsibility for incurring the fine, such as words to the effect, “I’m happy to pay it” and “I am not denying it’s me, it’s highly probably” before then stating that GPC needed to prove the matter “beyond reasonable doubt” and that he required “absolute proof” that he was responsible.

[127] Following these meetings with Mr McCullough, Mr Hearnden left the matter with Ms Preston. It is Mr Hearnden’s evidence that the handwritten notation of Ms Whitehead of the registration on the speeding fine did not form part of why he thought the speeding fine has been incurred by Mr McCullough.

Mr McCullough’s “incident report”

[128] On 11 June 2020, Mr Hearnden had a discussion with Mr McCullough about an exchange between Mr McCullough and Mr Myers. Mr Hearnden recalls they had a conversation to the following effect:

Mr McCullough:	“Perry, Scott was in my personal space today, he held his hand up right to my face. It was not acceptable and if it happens again I might not be able to help with happens.”
Mr Hearnden:	“Don’t do that. I will talk to Scott about it.”
Mr McCullough:	“By the way, Scott threw an oil filter and broke a window in the shop.”

[129] Mr Hearnden stated that given the seriousness of Mr McCullough’s tone during the above call, he immediately called Mr Myers to get his version of what had occurred. Mr Myers and Mr Hearnden had a conversation to the following effect:

Mr Hearnden:	“Scott, Gareth has called me today and said that you two had an argument and that you held your hand up to his face – is that right?”
Mr Myers:	“No, it was Gareth and Dean Andrew that were arguing. I stepped in to try and separate them and waved my hand. But my hand was nowhere near Gareth’s face.”

[130] Following his call with Mr Myers, Mr Hearnden telephoned both Ms Herbert and Mr Ryman. They discussed that Mr Hearnden needed to obtain a statement from Mr McCullough to understand the detail of what Mr McCullough said occurred. He subsequently called Mr McCullough and had a conversation to the following effect:

Mr Hearnden:	“Gareth I am just giving you a call about our discussion earlier today. We want to look into these matters but to do so would you be willing to make a statement so that we can know exactly what you said happened?”
Mr McCullough:	“I am not going to give you a statement. I don’t want to be involved.”
Mr Hearnden:	“If you do it make it easier for me if I know what you say happened.”
Mr McCullough:	“I won’t be giving you a statement, I’ll send you some dates and times.”

[131] On 16 June 2020, Mr Hearnden engaged in a text message exchange with Mr McCullough, as follows:

Mr McCullough:	“Following on from our conversation on the phone last Thursday 11/6 please ensure Scott keeps his hands outside my personal space.”
Mr Hearnden:	“Has he done it again today?”

[132] Given that five days had passed since the previous matter Mr McCullough called him about, Mr Hearnden assumed based on the above text that there must have been a further exchange between Mr McCullough and Mr Myers. Mr Hearnden called Mr Myers and had a conversation to the following effect:

Mr Hearnden:	“Scott, Gareth has messaged me today that you have had another argument – why were you in his personal space today?”
Mr Myers:	“I’ve hardly spoken to him at all today, I haven’t been anywhere near him except to give him some work.”

[133] After the discussion with Mr Myers, Mr Hearnden sent a text message back to Mr McCullough to clarify if he was referring to a new incident:

Mr Hearnden:	“I just had a go at Scott about this and he tells me he hasn’t since I spoke to him last week and today he has been busy and hasn’t been near you only to give you some tasks to do out the front. He tells me his hands have not been anywhere near you at all.”
Mr McCullough:	“No just making sure it stays that way. Thanks perry.”
Mr Hearnden:	“Ok. I thought something must have happened today.”

[134] Mr Hearnden gave evidence that he was confused as to why Mr McCullough would send him a message about the matter five days after the incident if nothing further had occurred, particularly given he had refused to supply a statement of his version of events.

[135] It was stated that, to the extent Mr McCullough alleges no action has been taken to address these matters, this is incorrect. The matter has been investigated and addressed by the business notwithstanding Mr McCullough’s refusal to participate in the investigation process.

[136] Mr Hearnden denies having in any way bullied Mr McCullough or acted unreasonably in relation to this matter. On it being brought to his attention, he immediately sought to discuss the matter with both him and Mr Myers, and immediately took further action in contacting them both when it appeared to him that a further incident had occurred. He stated that GPC has also progressed an investigation into the matters raised, despite Mr McCullough’s refusal to participate in that process.

Mr McCullough’s texts regarding Saturday overtime

[137] Mr Hearnden noted that Mr McCullough alleges that he has ignored emails and text messages from him regarding the allocation of a half-day Saturday shift to him every two weeks. He stated it is correct that he has not responded to every text message sent to him by Mr McCullough. However, Mr Hearnden denies ignoring Mr McCullough altogether.

[138] Mr Hearnden estimates that he had at least three to four discussions with Mr McCullough about this issue. Often when Mr McCullough sends him a text message, Mr Hearnden will call him directly, which is more common for him as he finds speaking on the telephone a more effective way of talking with employees. Notwithstanding Mr Hearnden’s explanations as to the issuing of weekend work, his evidence was that Mr McCullough will continue to press the issue, ignoring the fact that it has previously been discussed. Because of this, Mr Hearnden has begun to write down their discussions to ensure he had a record of what is discussed.

[139] On 2 April 2020, Mr Hearnden sent Mr McCullough a text, which read:

“Hey Gareth. At this stage I can’t guarantee any Saturday shifts. Not sure if you have seen the letter sent out last night from our CEO. In the letter there are a few things the company is doing to keep all staff employed which is the main focus. With the sales at present we have already cut a lot of casual usage and there is a total freeze on new starters etc. That’s why we cancelled replacing Jethro position. Also there is a review of trading hours so I am waiting to see what that looks like and how we may have to juggle hours for staff. With the corona virus things are changing all the time and we are in uncharted waters. Hope that all makes sense.”

[140] Mr Hearnden stated that the above message was reflective of the difficult conditions facing GPC’s business at the time in response to COVID-19. Many matters were in a state of flux at the time, including whether the business would continue to rely on casuals for weekend work to the extent it previously had.

[141] Mr Hearnden gave evidence that GPC has made the commercial decision to give Saturday work to casual employees, chiefly to:

(a) keep those causals “on the books” as employees to ensure they are available when the need arises for them to work more substantive hours (for example, during periods of leave by full-time/part-time staff and the traditionally busy Christmas period); and

(b) ensure that casuals remain up to date in their understanding of GPC’s business when it inevitably became necessary for them to work more substantive hours.

[142] Mr Hearnden stated that the above is consistent with what he had said to Mr McCullough each time he has raised the matter with him. He denies that he ignored Mr McCullough. He stated he has always sought to respond to Mr McCullough’s questions with an explanation of how the business currently issues weekend work.

Mr McCullough’s role

[143] In reviewing Mr McCullough’s witness statement in this matter, Mr Hearnden understands that he suggests his previous role no longer seems to exist at the Kippa-Ring store. If this is because Mr McCullough suggests “his” desk and chair have been removed and he is forced to perform a customer-facing role at the front counter of the store, Mr Hearnden does not agree with Mr McCullough’s characterisation that his role no longer exists.

[144] In Mr Hearnden’s experience at Repco, it is very common for employees in the API position to perform customer-service based functions in the counter at the store. The expertise of the API employee is often essential to ensuring customers within the store are served appropriately. Mr Hearnden also has no knowledge of a desk and chair earlier having been assigned to Mr McCullough at the store.

[145] Mr Hearnden stated that should Mr McCullough have issues with the amount of time he has to spend “on this feet” at the counter performing this function, he would attribute this to the additional work which has been required of all employees at the Kippa-Ring store in recent months (at the time of giving evidence). With the departure of Mr Harvey from the store and the imposition of a hiring freeze at GPC due to the impact of COVID-19, it may be that all staff members in the store have been busier than usual. This does not change the fact that in Mr Hearnden’s experience such functions are entirely normal for an API employee to perform.

Evidence of Mr Scott Myers

[146] Mr Myers made a witness statement and appeared and gave evidence at the hearing. Mr Myers has been employed by GPC since 2000, and since 2007 has held the position of Store Manager. Since 1 April 2020, he has been the Store Manager of Repco’s Kippa-Ring store.

[147] In Mr Myers’ capacity as Store Manager, his primary day-to-day responsibilities centre around planning of operations for the store, including:

(a) monitoring staff levels, including taking into account holidays and unexpected sick leave to ensure the store remains appropriately staffed;

(b) monitoring staff performance including ensuring customers are being appropriately served;

(d) assigning jobs on the stock floor -for example setting out of new stock; and

(e) undertaking stock takes.

Mr McCullough’s position

[148] It is Mr Myers’ evidence that he has worked with numerous API employees in his time at Repco and it is common that all API employees perform customer-facing retail functions in the Repco stores as required. He describes this as a key function of the role.

The subcontracted driver direction

[149] Mr Myers understands Mr McCullough’s allegation that on 5 May 2020, Mr Myers instructed Alex, a sub-contract delivery driver not to speak to Mr McCullough because she distracts Mr McCullough. It is Mr Myers’ evidence that contractors are engaged by Repco to assist in conducting deliveries to clients. The price for engaging these contractors is quite high, and as Store Manager he is keen to ensure that Repco gets value for its money in the engagement through the quick completion of deliveries.

[150] Mr Myers stated that he noticed that Mr McCullough tended to “hang around” and engage in lengthy discussions with Alex while she was at the store. He did not see a similar trend between Mr McCullough and other drivers engaged at the Kippa-Ring store. On around 5 May 2020, after Mr Myers noticed Mr McCullough again speak to Alex for longer than he considered appropriate or necessary, he said words to Alex to the effect, “Alex can you please stop talking to Gareth and go and do your deliveries.”

[151] Mr Myers denies that he made this comment because Alex distracts Mr McCullough. If anything, it is his view that Mr McCullough had the tendency to distract Alex. He asked that she progress the work for which she was engaged that day. In Mr Myers’ view this was reasonable given that the contract driver service is paid for by GPC, as is Mr McCullough’s time while at work.

The “13 May 2020 direction”

[152] Mr Myers stated that on 13 May 2020, he was due to commence a period of personal leave, and recalls asking Mr Dean Andrew, the Assistant Manager in the Kippa-Ring store, and Mr Sean Allen, a Customer Sales & Service Representative, their opinion on who they would like to assist them in staffing what they call the “trade phones” in his absence. These are the phones used for which they take orders directly from Repco’s trade-based customers, as opposed to retail customers.

[153] Mr Andrew and Mr Allen indicated to him that they would like Mr Michael Giorgio, the Retail Team Leader, to perform this role in his absence. Mr Myers was happy with Mr Giorgio’s customer-service skills and was confident that he could do the job while he was away.

[154] The day before Mr Myers commenced leave, he said words to the effect to Mr Giorgio, “Tomorrow I’m away, Michael I want you in the hot seat, helping out on the trade phones.” Mr McCullough was present when he said this and made no comment at the time.

[155] It is Mr Myers’ evidence that he never instructed Mr McCullough to remain at the counter. He stated he would be surprised if he had to give such an instruction, given that the service of customers in the store is a core function of the role that Mr McCullough is employed to perform.

[156] Mr Myers denies that he was bullying Mr McCullough when he put this arrangement in place prior to commencing leave. Before doing so, he sought the opinion of Mr Andrew and Mr Allen as to who they thought best-suited the role, and both indicated Mr Giorgio, which he agreed with. Placing Mr Giorgio in the role was Mr Myers’ attempt to ensure the best possible service was delivered to Repco’s trade clients.

[312] On these occasions he was repeatedly condescending, patronising and aggressive. It appeared that he was delighting in having managers in a witness box, being cross-examined by him. It was, finally, his “day in court,” and it seemed to me he was not going to let the opportunity pass him by.

[313] Rather bizarrely, if there arose the need for me to admonish Mr McCullough for the manner in which he spoke to the Persons Named or witnesses, at times he would slump over the bar table in an exaggerated, depressive state as though his world would end. He would, at times, go from a frenzied cross-examination where he was sometimes rude and condescending, to a depressed, dejected state. This could happen in a very short timeframe; almost manic to defeated.

[314] On several occasions I informed Mr McCullough that I had formed a view that he was patronising, condescending and aggressive at times during the hearing. He appeared to me to have no self-awareness of the way in which he spoke to witnesses so rudely.

[315] It would appear to me that Mr McCullough’s personality and his emotional intelligence has contributed to his angst within the workplace that he describes as having been in place across a large number of managers; well before the Persons Named came to manage him. Having observed Mr McCullough in person, it is unsurprising that he is difficult to work with, although nobody said that he is disliked.

[316] Having been involved in earlier proceedings before the Commission where Mr McCullough considered that he had succeeded in being granted a transfer, it is clear that he considers that this outcome was awarded or granted. It was not; it was an agreed position between Mr McCullough and management of GPC at that time.

[317] I will deal with the particular issues as raised or alleged in turn.

Allegation 1 – Illegal Broadcast of recording made in the workplace.

[318] On the balance of probabilities, I am satisfied that Mr Harvey made a recording of Mr McCullough in the workplace in January 2019, without Mr McCullough’s knowledge. I am satisfied that Mr Harvey showed the recording to Ms Lawson.

[319] While five out of six people interviewed claimed not to have seen or heard the recording, Ms Lawson has troubled herself to be involved in this issue by making a statutory declaration certifying that the recording was shown to her. At no time has GPC put to Ms Lawson that she is not telling the truth in this matter, and she remains an employee of GPC. Simply because five people did not declare that they had seen or heard the recording does not mean that it did not occur; Ms Lawson has stated, uncontested, that she has been shown the recording.

[320] The recording was not illegally made. It is not against the law in Queensland to make a recording of that nature without the other person’s knowledge. In many workplaces, however, it may breach company policies, and simply as a matter of respect for colleagues, in most circumstances it will be unwarranted and inappropriate to make secret recordings.

[321] I disagree with the findings made by Ms Herbert on behalf of GPC that the incident is unsubstantiated. I do not consider it was available for her to make that finding when proper regard ought to have been had for Ms Lawson’s evidence. I note that Ms Herbert also had regard to the fact that Mr Harvey was no longer employed by GPC at the time the findings were made.

[322] While I consider Ms Herbert’s finding to be incorrect, I am not satisfied it constituted bullying of Mr McCullough. I am not satisfied that Ms Herbert behaved unreasonably to Mr McCullough, and in any event, it was not repeated. While I consider her determination of the issue to be unreasonable on the information that she had available before her, I am not satisfied the unreasonable decision was behaviour towards Mr McCullough. She was, in my view, simply wrong about the issue before her.

[323] If Ms Herbert had determined that Mr Harvey had made the recording and shown it to Ms Lawson, the fact remains that Mr Harvey was no longer employed by GPC at around the time that determination would be made. The satisfaction would have been Mr McCullough’s, knowing that what he had asserted was true. It wouldn’t have changed the actual working environment, other than Ms Whitehead, a supporter of Mr Harvey, learning that GPC had concluded that the recording was made by Mr Harvey and shown to Ms Lawson.

Allegation 2 – “midlife crisis” invoice

[324] In my view, Mr McCullough has demonstrated an extraordinary level of paranoia in levelling this complaint firstly against Ms Whitehead, and then against Ms Herbert for not finding in his favour. I accept Ms Whitehead’s evidence that she wrote “midlife crisis” on the invoice as a joke between herself and a customer well-known to her about his expensive new car purchase.

[325] How Mr McCullough considered it was about him beggars belief. Even the manner in which he discovered the printed invoice makes it clear that it was not aimed at him.

[326] Whether he thinks Ms Whitehead should not have sent to the customer such a comment is not relevant. It was not offensive. It was, quite simply, none of his business. I accept Ms Herbert’s findings on this issue. They were the only findings available to her.

Allegation 3 – Sick Leave Entitlements deducted by Ms Whitehead without justification

[327] Having considered all of the evidence before me, I am satisfied that Mr McCullough took time off to attend to medical issues and such time was appropriately deducted from his personal leave.

[328] Mr McCullough first protested that because he considered that he did significant overtime, the time taken to attend to medical issues should be offset against the additional hours worked by him, and not deducted from his accrued personal leave. When this was not agreed to by Ms Whitehead, Mr McCullough aggressively sought to have GPC prove the time was not worked by him.

[329] At various times Mr McCullough demanded that GPC provide medical evidence of his appointments at various hospitals. He ought to have known that those documents could only be produced by GPC if he had provided them to it.

[330] After the first two days of hearing the Commission ordered production of medical records from various hospitals and those records are very telling. They accord with GPC records, and make clear to me that Mr McCullough’s alleged contemporaneous notes of his time and attendance are false records. I repeatedly put to Mr McCullough that his alleged contemporaneous notes appeared to me to be a false record on account of the handwriting, the use of the same pen and the manner in which the hours of work are recorded. Mr McCullough continued to assert that the records were contemporaneous. He even later did so in written final submissions in the face of the medical records demonstrating he could not have been work at work when he declared that he was.

[331] The assertions that I made to Mr McCullough are correct; the document produced by him is false, as is demonstrated by the medical records, particularly 17 and 22 January 2019. How Mr McCullough thought he could give false evidence to the Commission in support of his application is astonishing. Hospitals record attendance times. He supposedly made a contemporaneous record after 4:30pm on 22 January 2019 that he finished work at 4:30pm; he was at hospital between 2:37pm and 4:50pm. He has been caught out not only making repeated claims to his employer that he has been poorly done by, but in my view, been caught up in a twisted vengeance against Ms Whitehead and then later Ms Herbert, in which he has potentially committed an offence pursuant to s.678(1) of the Act:

“False or misleading evidence

Giving false or misleading evidence

(1) A person (the witness ) commits an offence if:

(a) the witness gives sworn or affirmed evidence; and

(b) the witness gives the evidence as a witness:

(i) in a matter before the FWC; or

(ii) before a person taking evidence on behalf of the FWC for use in a matter that the witness will start by application to the FWC; and

Penalty: Imprisonment for 12 months.

Note: A person will not commit an offence if the person carries out the conduct constituting the offence under duress (see section 10.2 of the Criminal Code ).”

Allegation 4 – private use of motor vehicle

[332] Ms Herbert determined that Mr McCullough’s complaint relevant to the requirement for him to pick up the vehicle from the airport to be substantiated. This is unsurprising because at the conference before me on 9 March 2020, I informed the parties present that it appeared to me that Mr McCullough had a right to full use of the company-provided vehicle pursuant to his employment agreement. If the vehicle was required when he was on leave, it would not be Mr McCullough’s responsibility to find his way to the airport from his home to then again have access to the vehicle. That is, he would not need to source his own lift to the airport.

[333] GPC adopted the recommendation given by me at the initial conference, and accepted that it had, naïvely, not been aware of Mr McCullough’s full entitlement. In the letter of 1 May 2020, it made clear to Mr McCullough that appropriate arrangements would be made in the future if the vehicle was needed for other use when he was on leave.

[334] I am satisfied that Ms Herbert’s findings on this issue are correct. The incident was inadvertent and did not constitute bullying. In any event, it was a single event.

Speeding fine

[335] Very disappointingly, Mr McCullough’s conduct relevant to the speeding fine issued on 7 November 2019, in the vehicle he regularly drives is, in my view, appalling. Where he was initially requested to confirm it was him driving the vehicle at the time the offence occurred, he stated to Mr Hearnden that they probably both know it was him, and he requested he and the company “go halves” in the fine. When he was informed that this would not occur, he then turned his attitude around and demanded evidentiary proof that it was him driving. The proof that he required was to the standard of beyond a reasonable doubt.

[336] Mr Hearnden was then put to the trouble of driving the particular route to satisfy himself that Mr McCullough was responsible for the speeding ticket. Mr Hearnden was required to have several meetings with Mr McCullough where he carried on, oscillating between suggesting he was the driver, to then exclaiming that it was a set-up by Ms Whitehead.

[337] On the balance of probabilities, I am satisfied that Mr McCullough was the driver of the vehicle when the traffic infringement occurred. Mr McCullough’s failure to accept that he was the driver of the vehicle resulted in the company paying a fine for the ticket at company rates of $889.00. Mr McCullough was, in my view, attempting to distract the attention away from his own offence to cast a shadow on Ms Whitehead simply for her linking him to the vehicle at the approximate time of the delivery by Mr McCullough.

[338] Mr Hearnden was extraordinarily patient with Mr McCullough. I consider that it was available to GPC to discipline Mr McCullough over his conduct on this issue.

Failure to roster Mr McCullough on Saturday overtime

[339] On the issue of Mr McCullough’s insistence that he has a right to work regular Saturday overtime, I consider his demands to be misconceived. He insists that he is entitled to it as part of the negotiated outcome when he transferred to the Kippa-Ring store.

[340] I do not accept that regular Saturday overtime was part of the arrangement for him to transfer. The transfer was at his insistence; he wanted to move branches to distance himself from a manager he alleged was bullying him. When Saturday overtime work was then reduced and later not offered, he demanded it be returned. “Same pay conditions” and “continue with current employment arrangement” mean just that; it doesn’t guarantee overtime hours beyond his ordinary working hours during the week where overtime hours may be offered and accepted, or refused. This is true if Mr McCullough did not wish to work overtime and GPC insisted that he must; he was transferred across for the same pay conditions being his rate of pay.

[341] During the hearing I put to Mr McCullough why GPC would wish to pay to him overtime rates on Saturdays when it could pay casual employees, whom it deems need regular hours of work to keep them interested, and at a cheaper rate than him? Mr McCullough initially suggested that his rate of pay would be cheaper, however I explained to him that it is not, where he would be entitled to time and a half and overtime, but with no requirement for superannuation. A casual employee working regular hours would be entitled to a casual loading and potentially superannuation, which would not be as expensive for GPC as employing Mr McCullough to perform those hours of work. This is true even having regard for the over-award payment Mr McCullough received.

[342] I am not satisfied that Mr McCullough has any right at all to demand regular Saturday overtime work, or that it was part of the negotiated outcome in January 2018.

[343] I am not satisfied that Ms Herbert acted unreasonably in dealing with requests relevant to this issue. It has not been addressed by Mr McCullough with Mr Myers. I accept that Mr Hearnden has appropriately responded to Mr McCullough on this issue. I accept entirely Mr Hearnden’s reasoning as to why GPC would wish to work casual employees on Saturdays as opposed to having Mr McCullough perform overtime hours on a Saturday.

Mr McCullough’s role at Kippa-Ring

[344] Having regard to the duties of an API, I am satisfied that Mr McCullough is skilled to be competently performing many facets of the role including trades advice on the telephone, selling retail in-store and delivery of products, where required.

[345] I do not consider GPC’s requirement to have Mr McCullough perform retail sales and delivery of products to be unreasonable, and it forms an ordinary part of his role having regard to his position description. If trade inquiries are taken by Mr McCullough, he is skilled to take such telephone calls. He may not be required by GPC to always be available to take trade calls.

[346] I do not consider that Mr McCullough has demonstrated that there is any form of bullying by requiring him to be “on his feet” and serving retail customers where, on his account, he now performs typically 30% trade and 70% retail. One of the stated physical requirements in the position description is “Ability to stand at desk for extended periods of time.”

[347] Where Mr McCullough complained that his desk and chair was removed once he returned from leave, I accept Ms Whitehead’s evidence that she considered that there were too many desks and phones than there were people, and lawfully and reasonably, the workstation was dismantled. I do not accept this was in any way related to Mr McCullough’s return from leave nor was it aimed at making his working life uncomfortable.

Mr Myers’ direction to Alex

[348] On or around 5 May 2020, Mr Myers said to Alex, the contract delivery driver, “Alex can you please stop talking to Gareth and go and do your deliveries.” Mr McCullough considers that this is a slight against him. He only raised this complaint after the initial application could not proceed due to the Persons Named no longer working for GPC, and if he wished to continue a bullying complaint, he was required to name new Persons Named.

[349] I consider Mr McCullough’s complaint to be entirely disingenuous. Mr Myers is entitled to direct a contract delivery driver to cease conversations with a GPC employee where he reasonably believes the talk is unnecessary and unproductive. He did so on this occasion, which I accept was a lawful and reasonable direction. He has not ostracised Mr McCullough.

13 May 2020 incident

[350] Where Mr Myers left the branch on 13 May 2020 for a period of personal leave and left Mr Georgio to answer the phone instead of Mr McCullough, Mr Myers sought the opinion of Mr Andrew and Mr Allen before doing so.

[351] In oral evidence, Mr Myers stated that the position held by Mr Georgio, Retail Team leader is more senior to the API role held by Mr McCullough. In any event, Mr Georgio’s trade background is as an auto electrician and he considered that he had the requisite background, knowledge and suitability with customers.

[352] Mr Myers’ decision does not constitute bullying of Mr McCullough and was a reasonable decision made by him exercising management prerogative.

Mr Myers’ filter throwing incident – 22 May 2020

[353] Curiously, Mr McCullough did not report the incident of Mr Myers throwing an oil filter through the window to Mr Hearnden, occurring on 22 May 2020 until 11 June 2020. I would have thought if he considered it to be such a risk to his health and safety, he would have reported it sooner.

[354] Having viewed the footage of Mr Myers on 22 May 2020, it is indeed disturbing to see his conduct. He was the most senior person in the store and he threw the oil filter in a fit of rage, in the presence of some employees, but not in Mr McCullough’s presence. His conduct was petulant and dangerous. His evidence to the Commission is that there has been a confidential outcome relevant to disciplinary action. This is not surprising; Mr Myers should be disciplined by GPC for his conduct on this day.

[355] Mr McCullough has, in my view, sought to include such an incident before the Commission to suitably embarrass Mr Myers, knowing that such conduct is unacceptable. He has not, however, been able to draw any suitable link as to how Mr Myers’ conduct on this day constitutes bullying of Mr McCullough. Where he says he is concerned that he is at risk of Mr Myers throwing something at him or at other staff, I am satisfied that no such risk exists.

CCTV footage filed by Mr McCullough

[356] Mr McCullough’s actions in viewing the CCTV footage of Mr Myers throwing the oil filter at the window is curious. He did not do so simply to secure the footage and ensure it wasn’t destroyed while delivering it to more senior management. Instead, Mr McCullough recorded the footage on his own phone while watching it with Alex, the contract delivery driver and Cameron, a customer. He did so on the day that the incident occurred.

[357] The recording demonstrates Mr McCullough’s purpose of obtaining the video; he wishes to embarrass Mr Myers as much as he can, and in doing so made derogatory and mocking comments about his co-workers. He referenced Mr Georgio as “another big gun” in a mocking way, and said about Mr Allen, a large man, “the big man.” He conceded that he had since apologised to Mr Allen.

[358] Mr McCullough’s actions in allowing Alex and Cameron to view the footage, as well as showing it to his mother, wife and friends, together sending it to another employee at another store is unfathomable. Where Mr McCullough took such offence at Mr Harvey secretly recording him and showing it to at least one other person, he considered it appropriate to use his personal device to record the misconduct of Mr Myers and even send his recording to another person. Once sent to another person, Mr McCullough has no control over where that recording may end up, despite his assurances that he has now deleted his own copy.

[359] It is not strictly necessary for me to do so, however I consider Mr McCullough’s actions in allowing others to view the footage, making mocking and disparaging comments about his co-workers, and sending a recording to another person to constitute misconduct.

11 June 2020 incident

[360] On the evidence before me, I am satisfied that there was an aggressive altercation between Mr McCullough and Mr Andrew on 11 June 2020. I accept that Mr McCullough did not like Mr Andrew directing him to get back to the front counter and the exchange became heated.

[361] Upon Mr Myers coming upon the heated exchange, I am satisfied that he properly intervened by directing Mr McCullough to go to the front counter, and in doing so he raised his hand to direct him. I do not accept that he put his hand within two centimetres of Mr McCullough’s face. To be within two centimetres of Mr McCullough’s face is an extraordinarily threatening action, and I note that Mr McCullough is a reasonably tall man. It would not be physically impossible for Mr Myers to reach within two centimetres of Mr McCullough’s face, however on the balance of probabilities, I accept Mr Myers’ evidence that he waved his hand between the men and the account that he gave to Mr Hearnden on the same day was truthful.

[362] It is curious that in the same conversation Mr McCullough reported to Mr Hearnden the incident of 11 June 2020, he sought to inform Mr Hearnden of the filter throwing incident which had occurred two weeks earlier. It took until that moment for Mr McCullough to alert management to an issue that he informs the Commission causes him to fear for his safety.

[363] Mr Hearnden then sought to obtain a written statement from Mr McCullough; he refused to participate, stating, “I don’t want to be involved.”

[364] Mr McCullough’s further text to Mr Hearnden on 16 June 2020 is curious, as it occurred on the same day that I convened a telephone conference with Mr McCullough where he stated that he wished to pursue the application but wished to name additional Persons Named as the earlier Persons Named were no longer employed. Having received Mr McCullough’s text message, Mr Hearnden was under the impression that there had been a further incident that very day, but Mr McCullough, it seems, was reiterating his concerns that he had made on 11 June 2020, without agreeing to participate in an investigation of his allegation.

[365] My impression of Mr McCullough is that he wished to alert management to some alleged issues involving Mr Myers, but was not prepared to back himself by making a formal statement. I consider that he was attempting to besmirch Mr Myers’ character.

Out of office emails and demand for a transfer

[366] Mr McCullough made much ado about Ms Herbert’s many out of office emails. Mr McCullough would not have been the only person to receive Ms Herbert’s out of office emails at that time; anybody who sent her an email on those particular dates would have received them.

[367] On 30 and 31 December 2019, Mr McCullough sent emails regarding “his transfer.” It is not surprising that Ms Herbert was on leave at this time of year. Upon returning from leave she sent him detailed information as to available roles he could apply for. The following day Mr McCullough stated he would commence proceedings in the Commission. By late January 2020, Mr McCullough, frustrated at not receiving the transfer he requested condescendingly asked Ms Herbert if she needed an explanation as to what a transfer is. He had, by this time, lodged his application before the Commission. Ms Herbert was not aware of this until 30 January 2020. Mr McCullough sent the following correspondence to Ms Herbert in early January 2020 which I consider, in all the circumstances, to be rude:

“The incompetence of the HR department has been made very clear to me in previous dealings I have had so any further issues I have will be taken directly to the FWC.”

[368] It appears to me that Mr McCullough, having had success in earlier being transferred, considered that if he made enough noise, a transfer would appear. Where Ms Herbert informed him that was not possible, and only suitable vacant roles could be considered, Mr McCullough threatened to make a complaint to the Commission and then did so. I consider Ms Herbert’s responses to Mr McCullough to be measured, patient and professional. I consider Mr McCullough to have been petulant, impatient, rude and condescending.

Return of vehicle

[369] Mr McCullough’s conduct in stating to Ms Whitehead when she went to retrieve the company vehicle from his home, “If you want the car back, put it in writing. You’re not very smart. If you wanted it you should have brought a second set of keys.” is, in my view, very disturbing. Mr McCullough should, at all times, conduct himself in a professional manner, whether he likes his manager or not.

Placement of stock delivery totes

[370] I have viewed photographs of stock delivery totes stored in aisles, requiring individuals to walk around them to save from falling over. It is not particularly safe, however the totes are readily visible and there appears to me to be sufficient room to move around them. It would be preferable if they were promptly moved from the floor. The fact that they are not immediately packed away does not constitute bullying of Mr McCullough.

Conclusion

[371] In order to make final orders in a bullying application, there are two requirements under s.789FF(b) of the Act. The Commission must first find that Mr McCullough has been bullied at work by an individual or a group of individuals and secondly that there is a risk that Mr McCullough will continue to be bullied at work by the individual or group concerned.
[372] Once these two requirements have been satisfied, s.789FF confers on the Commission a broad, discretionary power to make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent an employee from being bullied at work.
[373] There is no dispute that the employer is a constitutionally-covered business, and it is also accepted by the parties in this case that the alleged conduct, if it occurred, took place whilst Mr McCullough was at work.
[374] The application of s.789FD has been discussed in various decisions of the Commission where it has been held that the terms of s.789FD are to be applied objectively and that s.789FD(2) ‘reasonable management action carried out in a reasonable manner’ is not so much an “exclusion” but a qualification which reinforces that bullying conduct must of itself be unreasonable. 3 It also emphasises the right of management to take reasonable management action in the workplace.4
[375] The issues in dispute in this case are therefore whether an individual or group of individuals have repeatedly behaved unreasonably towards Mr McCullough and whether any such behaviour has created a risk to his health and safety. In considering whether there has been repeated unreasonable behaviour the Commission needs to consider whether any of the conduct was reasonable management action taken in a reasonable manner.
[376] In Mac v Bank of Queensland Ltd, 5 Hatcher VP provided the following examples of conduct “which one might expect to find in a course of repeated unreasonable behaviour that constituted bullying at work” as including:

“… 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.” 6

[377] In Edwards v E S Trading Co (Discounts) Pty Ltd (t/as E & S Kitchen, Bathroom Laundry), 7 an employee’s genuinely held belief that she was being bullied at work was insufficient to enliven the Commission’s jurisdiction. The conduct must not only be perceived as being bullying, but that belief “must be reasonable in the sense that it is able to be supported or justified on an objective basis.”

[378] In Ms SB, Hampton C observed that:

“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” 8

[379] The Commissioner also relevantly stated: 9

“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.”

[380] Having regard to the non-exhaustive list of examples of conduct at [376], on the evidence before me, I am not satisfied that any person has behaved unreasonably towards Mr McCullough. Further, I am not satisfied that if they had, it is behaviour which has been repeatedly unreasonable.

[381] The only matter I have found is that Ms Herbert should have determined that Mr Harvey made a recording of Mr McCullough in the workplace in January 2019 and showed it to Ms Lawson. I have determined that Ms Herbert’s incorrect findings on this issue does not constitute bullying of Mr McCullough. Ms Herbert’s letter of 1 May 2020 with GPC’s findings is otherwise exemplary.

[382] In addition, Mr Myers’ conduct on 22 May 2020 was entirely inappropriate. It did not, however, constitute bullying of Mr McCullough.

[383] The Commission can only act when its jurisdiction is invoked, and even then, there is a discretion whether to issue orders to prevent the continuation of any bullying.

[384] The evidence has not established to my satisfaction that the Persons Named have repeatedly behaved unreasonably towards Mr McCullough. Having regard to all the circumstances, I am not satisfied that Mr McCullough has been bullied at work by a person or group of persons at the workplace.

[385] In reaching that conclusion, it has not been necessary for me to determine whether the alleged instances of bulling behaviour created a risk to Mr McCullough’s health and safety. As an aside, I recommend to the parties that GPC’s employee assistance program be made available to Mr McCullough to allow him to explore opportunities to improve his interpersonal skills. He has been employed by GPC for a reasonable period of time and appears to me to be knowledgeable in his chosen career.

[386] Despite my condemnation of one part of Mr McCullough’s evidence to the Commission where I have considered it to have been falsely given, I consider that it would be useful for Mr McCullough to “tap in” to how he can improve his relationships with his work colleagues. Aged in his 40’s, Mr McCullough presumably has some decades of work to perform before he retires, and unless he can improve the manner in which he works with his colleagues, it is possible that he may experience difficulties in any workplace in which he works, not just with GPC. I have formed this view based on my observations of Mr McCullough’s personality, emotional intelligence and lack of self-awareness.

[387] Because I am not satisfied that Mr McCullough was bullied at work as alleged, there is no power to make the orders sought, and the application is dismissed. An order giving effect to this will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

McCullough G, Applicant.
Battagello A, for the Respondent.

Hearing details:

18 August 2020, Brisbane.
19 August 2020, Brisbane.
25 August 2020, by Telephone.

Final written submissions:

Final written submissions of the Applicant, 31 August 2020.
Final written submission of the Employer Party and Persons Named, 7 September 2020.
Final written submissions of the Applicant in Reply, 22 September 2020.

Printed by authority of the Commonwealth Government Printer

1 [2015] FWC 774.

2 [2014] FWC 2104.

3 Mac v Bank of Queensland Ltd[2015] FWC 774 at [95].

4 GC [2015] FWC 6988 at [47], [52] and Amie Mac v Bank of Queensland Limited and others[2015] FWC 744.at [48], [88].

5 [2015] FWC 744.

6 Ibid at [99].

7 [2016] FWC 8223 at [61].

8 [2014] FWC 2104 at [49].

9 Ibid at [51].

Mr Gareth McCullough v Mr Perry Hearnden

[2021] FWC 1288

10 MARCH 2021

DECISION