Mr Jianing Wang v Ms Liyang Lin, Darwin International Hotels Pty Ltd

[2022] FWC 2063

[2022] FWC 2063

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Mr Jianing Wang
v

Ms Liyang Lin, Darwin International Hotels Pty Ltd

(SO2022/88)

COMMISSIONER RIORDAN SYDNEY, 26 september 2022

Application for an FWC order to stop bullying

1. On 21 February 2022, Mr Jianing Wang (the Applicant) filed an application with the Fair Work Commission (the Commission) pursuant to s.789FC of the Fair Work Act 2009 (the FW Act) for an order to stop bullying. The Applicant is engaged by Darwin International Hotels Pty Ltd (the Respondent) as a Guest Service Agent at the Hilton Darwin.

1. The Applicant claims that he has been bullied by Ms Liyang Lin, Guest Relations Manager, on the basis that she has treated him unfairly as compared to other staff members and has made degrading comments to him. The Applicant has also raised concerns against Ms Katy Jackson, Director of Human Resources – Northern Territory, claiming that she had unprofessionally mishandled his complaint against Ms Lin and had not promoted him to an appropriate role.

1. The Respondent has denied that the Applicant was bullied, stating that the actions of Ms Lin and Ms Jackson were reasonable management action.

1. The matter was allocated to me on 8 March 2022. I conducted a Conference by Telephone on 9 March 2022, however the matter was unable to be resolved.

1. A Determinative Conference was conducted via Microsoft Teams on 19 May and 26 July 2022. The Applicant appeared and gave evidence on his own behalf in the proceedings. The Respondent was granted leave to be represented by Mr Michael Grove, Partner at Ward Keller.

1. The Applicant relied on the evidence of the following individuals, who attended for cross-examination at the Determinative Conference:

·   Athena Lua-Kap, former Guest Relations Manager for the Respondent.

·   Gautam Chopra, former Guest Service Agent for the Respondent.

·   Edward Tran, Concierge for the Respondent.

·   Fanie Vu, former Executive Lounge Host for the Respondent. 

1. The Respondent relied on the evidence of Ms Lin and Ms Jackson, who were cross-examined during the proceedings.

Legislative Provisions

1. The relevant anti-bullying provisions of the FW Act provide:

“789FB             Meanings of employee and employer

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

“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.”

Applicant’s Submissions

Alleged bullying behaviour

1. The Applicant submitted that Ms Lin had engaged in unreasonable treatment of him in the workplace in contravention of s.789FC of the FW Act, which included degrading comments as follows:

·   “Do you know how to do this or not on earth?”

·   “Nobody is going to teach you all the time.”

·   “You look worried and anxious, and your mind seems to be away all the time. Are you worried that you’re going to get fired again?”

·   “Just marry an old white guy, so you'll get your residency here.”

·   “You don’t look happy today. Did you get dumped?”

1. The Applicant provided further examples of actions taken by Ms Lin against him, which he considered to be degrading and disrespectful. These included the following:

·   Ms Lin blocked and unblocked the Applicant on Facebook;

·   Ms Lin interrupted the Applicant’s interactions with customers and took over the check-in process on a few occasions;

·   Ms Lin is not supportive towards the Applicant, is bossy, and enjoys giving orders;

·   Ms Lin is selective in who she is nice to at work, which the Applicant submitted included two of her female colleagues and employees in higher positions. The Applicant submitted Ms Lin treated him unfairly and with a lack of respect.

1. The Applicant submitted that when he raised concerns of workplace bullying to Ms Katy Jackson, Director of Human Resources – Northern Territory, on 30 November 2021, Ms Jackson responded:

“It is not bullying. If you say it’s bullying, now, tell me when did that happen, what she did, what is the pattern?” … “I’ve talked to Markus and Maurizio, they know about the situation and they’ve asked Lya to action on this. What else do you want?”

1. The Applicant submitted that Ms Lin’s behaviours were explained away by Ms Jackson stating that what Ms Lin had done was “alright, it happens everywhere, there is nothing wrong with what she said”. The Applicant submitted that Ms Jackson failed in her position as Director of Human Resources to remain neutral and professional in dealing with his complaints against Ms Lin. The Applicant submitted that Ms Jackson aligned with the management and therefore “picked a side”.

1. The Applicant also submitted that, in relation to a higher position he had applied and been selected for, Ms Jackson had “used [his] mental health condition, which [was] caused by workplace issues, against [him] as a reason of not giving [him] the position [he] fought for”. The Applicant submitted that he should be paid at the higher rate, from the moment he took on training. He submitted that the Respondent “testing on [his] capability” made no sense.

1. Further, the Applicant raised that he had been stood down/made redundant at the start of the COVID-19 pandemic because there were no other positions available to which he could be transferred. The Applicant submitted that he was hired as a Guest Service Agent and Executive Lounge Host, and that the Respondent had “manipulated behind the scenes” to make it seem like a legitimate redundancy. The Applicant submitted that another Guest Service Agent, who had joined the Respondent one month before him, had not been made redundant.

1. While Ms Jackson and Ms Lin stated in their responses that the Applicant did not raise any concerns of workplace issues until now, the Applicant contended that:

“a) In relation to workplace problems, if the managerial people in the company don’t have the integrity and obligation to avoid or seek to correct those issues, I have no accusation in bringing it up on a later but more suitable occasion.

b) As most people in this disadvantaged position — have a strong fear of losing the financial support provided by their job and is a massive pressure. Take colleagues’ experience into consideration, there were people who raised their concerns in the past who got treated differently and excluded, even forced to leave, the issues weren’t paid enough attention after all, not mention to be resolved.

c) I got treated differently ever since I raised the issues to Maurizio Del Ben and Katy Jackson in the 4th quarter of 2021, which proves the containment for that time being is right thing to do.”

Effects of the alleged bullying behaviour on the Applicant

1. The Applicant submitted that the behaviour as outlined above has caused significant negative consequences on his health and wellbeing, causing him to suffer depression, anxiety and sleep disturbances. The Applicant submitted that he believes himself to be one of the Respondent’s best employees. However, he submitted that due to the behaviour of Ms Jackson and Ms Lin, his confidence has been impacted including his trust of those around him. The Applicant submitted that he used to dedicate himself to his work, however the alleged bullying behaviour has caused him to have a poorer work performance and productiveness, including a lack of purpose or desire to succeed. In support of the effects of the alleged bullying behaviour on him, the Applicant filed and relied upon letters written by Dr Henry Kwiatkowski, Registered Psychologist, Employee Assistance Service Australia and Dr Mrigendra Das, Consultant Psychiatrist, Darwin Private Psychiatry.

1. The Applicant submitted that in raising his concerns with the Respondent, he was looking for a response that the matters would be investigated thoroughly, and the problems resolved by the Respondent. The Applicant submitted that this never occurred.

1. The Applicant submitted that he feels he has been treated this way due to his ethnicity and sexual orientation.

Remedy

1. The Applicant seeks Orders as follows:

·   That the Respondent be directed to carry out an external third-party investigation in relation to the matters raised by the Applicant. The Applicant specifically sought that ‘Willoughby and Associates’ be engaged as the investigator;

·   That the Respondent demote Ms Lin to a Guest Service Agent due to her workplace serious misconduct and lack of best practice leadership, integrity and character;

·   That the Respondent promote the Applicant to the position of Front Office Supervisor at Hilton Darwin;

·   That the Respondent not place the Applicant on any Performance Improvement Plans and/or engage in disciplinary action processes. The Applicant sought to rely here on the Commission decision in Frank Moretti v HJ Heinz Company Australia Ltd [2012] FWA 1016. It is noted that this is an unfair dismissal decision.

Respondent’s Submissions

1. The Respondent submitted that there is considerable dispute on what transpired during the incidents set out by the Applicant. The Respondent relied on the evidence of Ms Jackson and Ms Lin, submitting that on an objective assessment, the Commission should find that Ms Jackson and Ms Lin did not behave unreasonably towards the Applicant within the meaning of s.789FD(1) of the FW Act,[1] and did not bully the Applicant.

1. The Respondent contended that the Applicant has misconstrued or misapprehended his discussions with Ms Jackson and Ms Lin, which took place in the context of the Applicant’s perception of his role and responsibilities and his ongoing employment prospects, including promotion, with Hilton Darwin, and the disappointment he might have felt in relation to these outcomes. The Respondent submitted that in some instances, the relevant discussion or conduct involved reasonable management action carried out in a reasonable manner within the meaning of s.789FD of the FW Act.

1. The Respondent submitted that it is not clear on the Applicant’s evidence and submissions that the alleged conduct posed a risk to the Applicant’s health and safety, nor whether the Applicant sustained actual harm as a consequence of the alleged conduct.

1. The Respondent submitted that the orders sought by the Applicant are beyond the jurisdiction of the Commission and appear to be directed to punishing the Respondent’s employees for their alleged conduct. The Respondent submitted that the Applicant appears to seek orders for instituting a disciplinary process rather than being directed at stopping bullying behaviour, if found, in the future. The Respondent noted that the Commission’s powers are to make preventative orders only.[2] Therefore, the Respondent submitted that the Commission does not have jurisdiction to direct a third-party investigation, demote employees, promote employees, or direct the Respondent to provide alternative employment opportunities, or restrain the Respondent from performance managing or disciplining the Applicant, if appropriate.

Consideration

1. I have taken into account all of the submissions that have been provided by the parties and I have attached the appropriate weight to the evidence of the witnesses. The fact that an issue is not mentioned in this decision does not mean that it has not been taken into account. 

1. I have taken into account the comments of Commissioner Hampton in Ms SB,[3] 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’. 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.”

1. A number of the comments made by Ms Lin to the Applicant are unfortunate but do not, in my opinion, constitute bullying. I accept that they were made in a light-hearted manner and were not intended to invoke feelings of ridicule or worthlessness in the Applicant. I am satisfied that Ms Lin thought that her relationship with the Applicant was of a friendly enough nature for her to make these tongue in cheek remarks.

1. However, Ms Lin should take note that any comments, no matter how innocent or humorous they may be to the person saying them, about a colleague’s sexual orientation, employment security or visa status, may cause anxiety and depression. I am in no doubt that the Applicant did not find Ms Lin’s commentary to be amusing.

1. I do not accept that Ms Jackson has bullied the Applicant. Ms Jackson has acted in accordance with her obligations and duties as a HR Manager. The fact that the Applicant did not like Ms Jackson’s comments or responses, does not mean that the Applicant has been subjected to bullying.

1. Ms Jackson testified that the Applicant is a hard worker, but that she knew that he suffered from stress. In an attempt to not exacerbate the Applicant’s stress levels, Ms Jackson offered the Applicant a Team Leader role rather than the Supervisor’s role. I note that the Team Leader role was still a promotion for the Applicant.

Conclusion

1. I am satisfied and find that the actions of Ms Lin or Ms Jackson could not be regarded as bullying.

1. Ms Lin can be, on occasions, firm in her approach to the job, but she is a Supervisor and is required to appropriately manage the staff. Being a firm Supervisor does not constitute bullying behaviour. Undoubtedly, some of Ms Lin’s comments were inappropriate in one context but also could be regarded as good natured and light-hearted banter between friends. Ms Lin would be well advised to restrict those types of comments to a social setting rather than the workplace.

1. Ms Jackson acted in an appropriate and professional manner in relation to the Applicant’s complaints. Her decision in not appointing the Applicant to the more senior position was made in the best interests of the Applicant.

1. The Applicant is clearly good at his job and a valuable member of the Darwin Hilton team. I hope that he can address his stress issues and continue his career in the near future.

1. The Application is dismissed.

COMMISSIONER

[1] The Respondent relied here on: Amie Mac v Bank of Queensland Limited and Others[2015] FWC 774; Roberts v VIEW Launceston Pty Ltd as trustee for the VIEW Launceston Unit Trust T/A View Launceston and Others [2015] FWC 6556.

[2] South Eastern Sydney Local Health District v Kusum Lal[2019] FWCFB 1475.

[3] [2014] FWC 2104.

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