Mr Gregory Fox v Bollore Logistics Australia Pty Ltd T/A Bollore Logistics Australia Pty Ltd

[2018] FWC 1111

[2018] FWC 1111 [Note: An appeal pursuant to s.604 (C2018/1686) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

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

Mr Gregory Fox
v
Bollore Logistics Australia Pty Ltd T/A Bollore Logistics Australia Pty Ltd; Ms Tonaya Davie
(AB2017/449)

COMMISSIONER RIORDAN SYDNEY, 7 MARCH 2018

Application for an FWC order to stop bullying.

[1] Mr Gregory Fox (the Applicant) is engaged by Bollore Logistics Australia Pty Ltd (the Respondent) as a sub-contractor delivery driver. The Applicant is the Director of GCB Transport Services (GCB).

[2] The Respondent is the logistics co-ordinator for a retail cosmetic store called Sephora.

[3] The Applicant claims to be the preferred delivery driver for Sephora. Whilst there is no contract between the Applicant and Sephora, the Respondent has acknowledged that a relationship does exist between the Applicant and Sephora. The Applicant also performs work at the direct request from individual Sephora stores. All worked performed by the Applicant, whether it is initiated by the Respondent or Sephora, is billed through the Respondent on a monthly basis.

[4] The Applicant claims that he has been bullied by Ms Tonaya Davie, a Warehouse Team Leader employed by the Respondent, on the basis that deliveries to Sephora stores that he could have undertaken, Ms Davie deliberately gave to another courier company to deliver. The Applicant also claims that the Respondent restructured its distribution processes to deliberately frustrate the Applicant. The Applicant submitted that this bullying behaviour can be traced back to an incident that occurred between the Applicant and Ms Davie in May 2017.

[5] A Determinative Conference was conducted on 8 February 2018. The Applicant represented himself in this proceeding. The Respondent was represented by Mr Rob McGinty, its HR Manager. Witness statements were sworn by the Applicant and Ms Davie. Both witnesses were cross examined during the proceeding.

[6] Prior to May 2017, the Applicant and Ms Davie had a very good working relationship where they would converse on a variety of issues, including personal matters. On 2 May 2017, Ms Davie took offence to a comment from the Applicant in reply to a question that she had asked. It is not relevant as to what was said or what transpired immediately after the incident.

[7] Ms Davie was advised by her manager to keep her relationship “purely professional” with the Applicant. The Applicant claims that this change in attitude resulted in him being bullied by Ms Davie.

[8] The Respondent has denied that it has bullied the Applicant.

Legislation

[9] The relevant anti-bullying provisions of the Fair Work Act, 2009 (the Act) state:

Section 789FB

Meanings of employee and employer

In this Part, employee and employer have their ordinary meanings.

Section 789FD

When is a worker bullied at work?

(1)  A worker is bullied at work if:

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

(i)  an individual; or

(ii)  a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b)  that behaviour creates a risk to health and safety.

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

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

(a)  the person is:

(i)  a constitutional corporation; or

(ii)  the Commonwealth; or

(iii)  a Commonwealth authority; or

(iv)  a body corporate incorporated in a Territory; or

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

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

Background and Submissions

[10] The Applicant submitted that on a number of occasions Ms Davie deliberately did not use the Applicant for deliveries to Sephora 1, but had the goods delivered by a courier company.

[11] The Applicant also submitted that the change in the warehouse procedure was introduced to frustrate his capacity to perform work. The Applicant claims that he would regularly assist the Respondent’s employees in packing an order which was economically beneficial to both parties. However, the prohibition of drivers walking behind the dock area restricted this product practice.

[12] The Applicant also claimed that Ms Davie went out of her way to make his job harder in servicing his client Sephora, by not having the goods that needed to be delivered ready for delivery or by deliberately not sourcing the required goods from the warehouse.

[13] The Applicant stated that Ms Davie has recently been rewarded with a promotion, even after her bullying behaviour.

[14] The Respondent submitted that the Applicant’s allegations of victimisation and bullying cannot be substantiated.

[15] In response to the specific allegations identified by the Applicant, the Respondent submitted that Sephora had, on occasions, provided very short notice for delivery orders which required the Respondent to arrange a courier to make the deliveries instead of the Applicant.

[16] Further, the Respondent submitted that the Applicant is a sub-contractor to the Respondent. The Respondent claims that it is not obligated to only use the Applicant to perform work for Sephora. Further, that no contract exists between the Applicant and Sephora or the Applicant and the Respondent in relation to Sephora’s deliveries. The only contract in existence is the contract between Sephora and the Respondent as its logistics coordinator.

[17] The Respondent also advised that Ms Davie has not been promoted within the Respondent but simply moved to an administrative role in the business away from the delivery area in order to avoid contact with the Applicant.

[18] The Respondent tabled the invoices for GCB Transport Services for 2017. The Respondent highlighted that these invoices show a steady income stream for the Applicant over a 12 month period of more than $6,000 per month. The Respondent submitted that they were not obligated to use the Applicant exclusively for all of Sephora’s deliveries but that these invoices showed that the Applicant undertook the majority of these functions and on a consistent basis.

[19] The Respondent argued that they have done nothing more than implement “reasonable management action” by ensuring that they complied with their contract to meet the needs of their client and dealt with the workplace issues between the Applicant and Ms Davie.

[20] In reply, the Applicant submitted that, as Sephora has opened more stores throughout 2017, his business should have grown accordingly.

Consideration

[21] I have taken into account all of the submissions and evidence submitted by the parties.

[22] I have taken into account the comments of Hampton, C in Ms SB 2 where he said:

“[51] The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’. 3  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’; 4

•  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. 5”

[23] I have taken into account that the Applicant is suffering from a medical disorder (chronic long term depression) which, when activated, can trigger an “episode” which includes shouting and dysfunctional anger. I am satisfied that the Applicant was of the view that his on-going engagement with the Respondent was in jeopardy after he discovered that work that he thought should be allocated to him was given to another courier company.

[24] I have taken into account, that the Applicant and Ms Davie had a “falling out” over a comment made by the Applicant. Whilst there is no doubt that the Applicant’s comment was inappropriate, it is a pity that their good working relationship could not be restored. I also regard a previous comment from Ms Davie to the Applicant to also be inappropriate.

[25] I have taken into account, after studying the invoice payment statement provided by the Respondent, that the Applicant was paid $7,441 for his services in April, $6,515 in May, $12,630 in June, $7,202 in July, $7,790 in August and $9,734 in September. This payment summary identifies an on-going and consistent stream of work and income for the Applicant.

[26] I have taken into account that the Applicant has not provided any contract or correspondence from Sephora which indicates that he is Sephora’s preferred or exclusive delivery contractor. However, I have also taken into account that the Applicant does have a strong relationship with Sephora based on his experience and familiarity with Sephora’s goods, personnel and store locations.

Conclusion

[27] The incident between the Applicant and Ms Davie was extremely unfortunate. What the Applicant probably thought was a throwaway line which would be accepted in good humour by Ms Davie was actually offensive, inappropriate and humiliating. Ms Davie’s earlier comment to the Applicant was also highly inappropriate and offensive.

[28] I am of the view that the Applicant is a genuine individual. I am satisfied that the Applicant believes that he was subjected to bullying and victimisation by Ms Davie. However, I am not satisfied that the actions of Ms Daley satisfies the test of “repeatedly behaving unreasonably” towards the Applicant. To satisfy this criteria, the Applicant would need to show that the use of his services had been reduced by the Respondent. The Applicant’s invoices show that his workload and income has remained relatively constant over this period.

[29] It is not in dispute that the Applicant suffers from a “long term depressive condition” which results in “periods of dysfunctional anger”. I accept that the Applicant’s medical condition was exacerbated by his perceived treatment from Ms Davie.

[30] Whilst there is no disagreement between the parties that the Applicant provides an economical and superior level of service to Sephora, there is no documentary evidence to suggest that the Applicant was the preferred or exclusive delivery sub-contractor to Sephora. Undoubtedly his familiarity in relation to store locations and delivery points is a valuable and productive resource for both Sephora and the Respondent.

[31] However, this familiarity or productivity benefit does not create any form of a guarantee for the Applicant in relation to an exclusive delivery agreement with Sephora. Such a scheme would need documented evidence from Sephora in order for the Applicant to be able to prove that the Respondent’s actions in providing Sephora deliveries to a courier company, instead of giving it to him, was bullying behaviour on behalf of the Respondent.

[32] In line with the obiter in Ms SB, I am satisfied and find that the Respondent, by utilising an alternate courier to deliver to Sephora on a limited number of occasions was reasonable management action. However, the uncontested evidence in relation to Ms Davie’s conduct, whilst not bullying, identifies an employee who was not necessarily working with the best interests of the Respondent’s client in mind.

[33] Finally, even though the Applicant was trying to help both the Respondent and Sephora, I am satisfied and find that the Respondent’s actions in modifying the way that orders are to be picked up by the delivery drivers from the warehouse is also reasonable management action. It is highly unusual for any employer to allow a Contractor to simply walk through their warehouse or delivery dock and help themselves to the stored goods without the appropriate paperwork or authorisation. Such a scenario would make stock control impossible to monitor or maintain.

[34] For the reasons stated above, the application is dismissed.

[35] I so Order.

COMMISSIONER

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 1   Exhibit1 – PN45-49

 2   [2014] FWC 2104

 3   Bropho v Human Rights & Equal Opportunity Commission (2004) 135 FCR 105 at [79].

 4   See Von Stieglitz and Comcare [2010] AATA 263 at [67].

 5   See the discussion in Department of Education & Training v Sinclair [2005] NSWCA 465.

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