Mr Zuo Min Yu v Star Track Express Pty Ltd, Damian Pope, Robert Deangelo, Jaskaran Bedi, Fady Abouhaila - [2024] FWC 1853

[2024] FWC 1853

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Mr Zuo Min Yu
v

Star Track Express Pty Ltd, Damian Pope, Robert Deangelo, Jaskaran Bedi, Fady Abouhaila

(AB2023/327)

COMMISSIONER WILSON

MELBOURNE, 19 JULY 2024

Application for an FWC order to stop bullying; whether Applicant bullied at work; whether conduct unreasonable or reasonable management action; whether conduct created risk to health and safety. Bullying not found. Application dismissed.

Mr Zuo Min Yu has made an application pursuant to Part 6 – 4B of the Fair Work Act 2009 (FW Act) alleging bullying at work by several of his supervisors and managers at Star Track Express Pty Ltd (Star Track).

For the reasons I detail below, I have not found Mr Yu was “bullied at work” as that term is defined by the FW Act, and his application must be dismissed.

PRELIMINARIES

Mr Yu’s application to the Fair Work Commission was made on 28 July 2023 and was the subject of two conciliation conferences before me, on 5 September 2023 and 12 October 2023. His application raised allegations against each of five people (collectively referred to as the Persons Named);

Robert D’Angelo, Fleet Manager

Jaskaran Bedi, presently a Supervisor but sometimes working in a “higher duties” capacity;

Fadi Abouhaila, Duty Manager;

Amareh Elmi, Driver/Trainer;

A fifth person, who, at the time of the allegations first being made, was General Manager of the Tullamarine depot (referred to in this decision as the Fifth Person Named).

After conciliation failed to achieve an agreed result, the application was referred by me for determination.

Mr Yu was represented by Ms Rebecca Preston, of Counsel, instructed by McDonald Legal, solicitors. The Persons Named and Star Track were represented by Mr Will Spargo, Landers & Rogers, solicitors. Each party was granted permission by me to be represented in these proceedings by a lawyer. Oral evidence was received from Mr Yu on his behalf. Oral evidence was received on behalf of the Persons Named and Star Track from Mr D’Angelo, Mr Bedi, Mr Abouhaila and Mr Elmi.

I am satisfied from the evidence that Mr Yu is a “worker” as defined by s.789FC of the FW Act, which provides that the term has the same meaning as in the Work Health and Safety Act 2011 and that the Commission has jurisdiction to hear and determine Mr Yu’s application.

APPLICABLE LEGISLATION

The FW Act’s provisions in relation to anti-bullying are contained within Part 6-4B—Workers bullied at work, with s.789FD setting out the circumstances of when a worker is bullied at work:

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.

The term “bullied at work” has the meaning given by s.789FD(1) of the FW Act, referring as it does to a worker, while at work, having an individual or group of individuals repeatedly behave unreasonably towards them with the behaviour creating a risk to health and safety. The sorts of behaviours that may be encompassed within the definition are very broad. By no means a complete list of unreasonable behaviour includes; “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”.[1]

The Commission’s assessment of allegations of bullying at work is an objective assessment of whether behaviour and conduct that occurred was unreasonable, with an attendant likely risk to health and safety. “Unreasonable behaviour” is that which a reasonable person, having regard to the circumstances, may consider to be unreasonable.[2] The definition is to be applied within Part 6-4B of the FW Act, dealing with bullying at work and requires application in accordance with the objective and subject matter of the Part.[3]

The reference within s.789FD(2) of the FW Act, to the effect that the definition of “bullied at work” does not apply to reasonable management action carried out in a reasonable manner, is not an exclusion. but a reference for the avoidance of doubt. The reference to reasonable management action carried out in a reasonable manner, serves to provide guidance in the interpretation and application of s.789FD(1)(a), in circumstances in which it is alleged that management action such as performance management, disciplinary action, allocation of work, restructuring of the workplace and employer directions, constituted bullying.[4] Assessment of reasonable management action carried out in a reasonable manner will require consideration of the following;

“[47] Section 789FD(2) of the FW Act is not so much an “exclusion” but a qualification which reinforces that bullying conduct must of itself be unreasonable. It also emphasises the right of management to take reasonable management action in the workplace. In its application, the provision comprises three elements:

· the behaviour (being relied upon as bullying conduct) must be management action;
· it must be reasonable for the management action to have been taken; and
· the management action must have been carried out in a manner that is reasonable.

[48]The Explanatory Memorandum[5] refers to management decision and decisions about how work is to be carried out. This suggests that the term may be required to be given a wide meaning under s.789FD(2) and that the Legislature intended everyday actions to effectively direct and control the way work is carried out to be covered by the exclusion.

[49] Determining whether management action is reasonable requires an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time. Without limiting that assessment, the considerations might include:

· the circumstances that led to and created the need for the management action to be taken;
· the circumstances while the management action was being taken; and
· the consequences that flowed from the management action[6].

[50] The specific ‘attributes and circumstances’ of the situation including the emotional state and psychological health of the worker involved may also be relevant[7].

[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’.[8] 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’[9];
· 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[10].

[52] For the circumstances in s.789FD(2) of the FW Act to apply, the management action must also be carried out in a ‘reasonable manner’. Consistent with the approach above, what is ‘reasonable’ is a question of fact and the test is an objective one.

[53] Whether the management action was taken in a reasonable manner may depend on the action, the facts and circumstances giving rise to the requirement for action, the way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters.”[11] [12]

Having found objectively there was bullying at work, the Commission must then assess, also objectively, whether there is a risk of the conduct continuing, with a further risk to health and safety. While requiring a causal link, the behaviour does not have to be the only cause of the risk, but a substantial cause of the risk, viewed in a common sense and practical way. A risk will be the possibility of danger to health and safety, and not necessarily actual danger[13], however the risk needs to be more than conceptual[14]

After finding a person has been bullied at work, the Commission is vested with the discretion to make orders or not. An applicant’s own conduct is a matter that the Commission may consider relevant under s.789FF(2)(d) when considering the terms of an order.[15]

BACKGROUND

Mr Zuo Min Yu has been employed by Star Track as a delivery driver since 2012. His duties are to deliver and pick up customer’s parcels within a defined territory. He is one of many such drivers employed by Star Track and works from Star Track’s Tullamarine depot. Since at least 2022, Mr Yu has made complaints to and about his supervisors and managers. The complaints have become progressively more significant, and in 2023, became allegations of bullying conduct directed towards him by the five Persons Named, one of whom has since moved positions and is no longer engaged at the Tullamarine depot.

Each of Mr Yu and the Persons Named, with the exception of the fifth, gave evidence in the hearing conducted by me. The Fifth Person Named has been excluded from the proceedings, as a result of me being satisfied that he is no longer employed by Star Track, having resigned. Accordingly, I am satisfied that there is no prospect of any workplace bullying between this person and Mr Yu into the future.[16]

On 19 April 2024, after the hearing had concluded, Mr Yu’s solicitors advised the Commission that he would not be pursuing orders against Mr Abouhaila. The advice followed an invitation from me, on the basis of how the Applicant’s bullying allegations had been set out in his outline of submissions. While I held the view at the time that Mr Abouhaila should be excluded from the proceedings, my review of all the evidence shows Mr Abouhaila being involved in one matter close in time to one of Mr Yu’s allegations, which is the subject of comprehensive evidence before me. For completeness, I deal with that matter in this decision as well, although finding there was no bullying behaviour on the part of Mr Abouhaila.

The bullying allegations raised by Mr Yu stem from an ongoing conflict between Mr Yu and the Persons Named about the requirements Star Track has for the number of deliveries and pickups to be done in the time allowed. Mr Yu’s submissions on the subject say;

“Star Track has persistently refused Mr. Yu's numerous reasonable requests to address unachievable delivery targets and rejected the complete implementation of the Commissioner's recommendations aimed at gaining a clear understanding of and establishing achievable workloads. Despite this, Star Track continues to assert that Mr. Yu's performance is subpar, without presenting substantial evidence to support these claims. Star Track has provided evidence indicating that Mr. Yu's performance is actually on par with other drivers working the same number of hours.”[17]

Numerous allegations are put forward by Mr Yu to substantiate his fundamental concern, with his Outline of Submissions dealing with seven particular matters, ranging in time from April/May 2022, through to the end of 2023. These are set out in the form below in the Applicant’s written submissions;

Allegation 1 – Performance requirement change in April/May 2022

“7. When Mr. Yu initially commenced the Lilydale Run, he would commence work at 7:30am and had a 5:30pm cut off, with 2.5 hours allocated for loading, 1 hour allocated for driving to Lilydale, and 6 hours for delivery, with an average of 45 deliveries and 1 daily pickup being an average of 7.66 jobs per hour.
8. From on or about April/May 2022, the average total number of deliveries had increased to 60 deliveries per day being an average of 9.2-9.3 jobs per hour with a 5:30pm cut off.
9. Due to increasing demands, Mr. Yu has often had to forego meal breaks in order to achieve the required deliveries.”

Allegation 2 – Threat to change delivery region – 31 May 2023

“10. On 31 May 2023, Mr. Yu’s supervisor [GS] threatened to change Mr. Yu's delivery region (Lilydale region) as he returned to the depot with some undelivered deliveries.
Despite notifying the radio room of the situation, Mr. Yu was unreasonably reprimanded and threatened by [GS] that he would change Mr. Yu’s delivery region if he continued to return to the depot with undelivered items.”

Allegation 3 – Questioning about return to depot with undelivered items – 8 June 2023

“11. On 8 June 2023, [GS] approached Mr. Yu upon his return to the depot following the daily delivery and pickup route. [GS] questioned Mr. Zu as to why he had returned to the depot with undelivered deliveries. In response, Mr. Yu explained to [GS] that due to Startrack's imposition of mandatory meal breaks, he was unable to complete the delivery of all items within the allocated time frame and that when Mr. Yu communicated to the radio room, he was not granted an extension to deliver the additional items and as a result has returned to the depot with them. Mr. Yu significantly reduced his meal break time well below the required thirty minutes to complete the deliveries, however items were still undelivered by the cut off time of 5.30pm.”

Allegation 4 – Threat of unilateral change to region – 9 June 2023

“12. On 9 June 2023, at a meeting with Mr. Yu, [the Fifth Person Named] (General Manager), [CD] from the Transport Workers Union, [LS] (fellow employee of Startrack Express Pty Ltd) and Mr. Yu’s supervisor [GS], Mr. Yu was informed by [the Fifth Person Named] that he was required to complete 42 deliveries per day with 2 scheduled daily pickups. At that meeting and upon being informed of this new requirement, [CD] from the Transport Workers Union and [LS] communicated to [the Fifth Person Named]that two daily pickups were difficult to achieve with the number of required daily deliveries, a view that was shared by Mr. Yu. Upon hearing this objection from [CD] and [LS], [the Fifth Person Named] replied with a direction to Mr. Yu that “if you can’t do your job, I can change your region anytime” and that “one daily pickup equals one delivery”. Mr. Yu did not share [the Fifth Person Named’s] view as the completion of a daily pickup necessitates a time frame ranging between 15 and 45 minutes.”

Allegation 5 – Pressure to deliver all packages – July 2023

“14. On 14 July 2023, Mr. Yu was assigned a disproportionately large number of delivery jobs scattered throughout his region, whilst 15 jobs were assigned to another pickup driver in a smaller area. Despite informing his supervisor, Mr. Jaskaran Bedi by way of radio, that he ran out of time to complete all deliveries, Mr. Yu faced pressure and was instructed not to return to the depot with any undelivered items.
15. On 17 July 2023, Mr. Jaskaran Bedi confronted Mr. Yu about the returned deliveries, and when Mr. Yu expressed that he was feeling pressured to deliver all packages despite there not being enough time, he was told that he could leave the Company. Subsequently, during a routine scan check with [MD], Mr. Yu was aggressively and unreasonably shouted at by Mr. Jaskaran Bedi for not answering questions, despite Mr. Dunford being present to check the scan.
16. Later in the same day, when Mr. Yu was writing notes in his small notebook, Mr. Jaskaran Bedi shouted at him aggressively and unreasonably, prohibiting him from writing during working hours and ordering him to leave the depot.”

Mr Yu’s witness statement adds slightly to these claims saying;
“26. On 21 July 2023, Mr. Jaskaran Bedi gave me notice that my start time would change from 8:00am to 10:00am. The change to my start time from 8:00am to 10:00am reduced my income by $500 per week.
27. I questioned why my start time had changed, to which Mr. Abouhalia (sic) advised that he can change my start time with no reason.”[18]

The reference to Mr Abouhaila’s alleged conduct on 21 July 2023 is the only reference to him in the allegations and the Applicant’s evidence that requires being answered.

Allegation 6 – Threat to change region/redistribute work if returned to depot with undelivered items – June 2023

“17. On 22 June 2023, Mr. Deangelo met with Mr. Yu and unreasonably demanded that Mr. Yu MUST do all his deliveries and pickups within the allotted time and that if he does not, they will change his delivery region and source another driver to complete Mr. Yu’s region if he continued returning to the depot with undelivered items. Mr. Deangelo then said to Steven (Driver trainer) in the presence of Mr. Yu, that if Mr. Yu continues to return to the depot with any undelivered items, that Steven was to source someone else to complete Mr. Yu’s region.
18. On 22 June 2023, Mr. Deangelo, in the presence of Steve Bantragewas (sic) and Steven (Driver Trainer), threatened to source another driver to complete Mr. Zu’s region if he continued returning to the depot with undelivered items.
19. On 22 June 2023, Mr. Yu was assigned a driver trainer to shadow him on 23 June 2023. Prior to commencing his deliveries with the driver trainer, he was subjected to aggressive behavior from Mr. Robert Deangelo, Fleet Manager, who shouted at Mr. Yu in an aggressive manner insisting that on no uncertain terms that Mr. Yu must complete the tasks assigned to him of that day, no matter what the road conditions are, no matter what the weather is, otherwise he would ask Steve Bantrage was to organise others to do his work the following day.”

Allegation 7 – Kew trial; allegation that did not follow instructions – October/November 2023

“21. For the period of 23 October 2023 to 2 November 2023, a driver/trainer was placed with Mr. Yu on a trial in Kew. A summary was provided to the Commissioner concerning the findings of this trial, to which multiple findings are denied and rejected. Mr. Yu’s alleged failure to adhere to instructions and his responses to enquiries, is indicative of a clear absence of good faith. Mr. Yu rejects the driver/trainer’s allegation that he did not follow instruction during the Kew trial and submits that he acted on the driver/trainer’s instructions at all times except those times when he deemed it not safe to do so.” [19]

While the person alleged to have undertaken the actions, forming Allegation 7, is not directly named, the material before me shows it to be Amareh Elmi, a driver/trainer and one of the Person Named.

Because of the way in which evidence was drawn by the Applicant, not all of these allegations now require determination;

Allegation 1 reports what could be unreasonable conduct, however it is not connected to any named person, and does not require being considered further.

Allegations 2 and 3 do not relate to any of the supervisors and managers named as having been responsible for the bullying alleged by Mr Yu and so also do not require being considered further.

Allegation 4 relates to the fifth mentioned supervisor and manager, who has since left Star Track’s employment. Because he is no longer employed with Star Track, there is no reasonable prospect of success for a stop bullying order in relation to him.

Accordingly, I confine my considerations in this decision to those allegations remaining live and requiring determination, that is Allegations 5, 6 and 7. I do not further consider Allegations 1, 2, 3 or 4, other than for the purpose of background or informing my decision about one of the continuing allegations.

CONSIDERATION

Notwithstanding how his bullying complaints have been particularised, Mr Yu’s concerns about his treatment while at work transcend the period of the second half of 2023, with his concerns continuing at least to the time of the hearing.

The orders sought by Mr Yu, in the event the Commission is satisfied that there has been workplace bullying as defined within the FW Act, and is satisfied that orders are appropriate to make, are the following;

“1. An order for the Respondent to stop bullying at work.
2. An order for one or more of the named individuals to stop the specified behaviour (namely bullying of the Applicant).
3. An order for the Respondent to regularly monitor the behaviours of the employees found to have bullied Applicant.
4. An order for the employees to apologise to the Applicant for the bullying behaviour.
5. An order for the Respondent to provide all staff with additional training on appropriate workplace behaviour”

4.1Background matters

Mr Yu’s assigned delivery and pickup region is around Lilydale, in Melbourne’s outer east. Because the Star Track depot is located in Tullamarine, it takes a considerable amount of time each day to travel to and from the region. A system known as Descartes was used to allocate targets for work, but is no longer used, as it is regarded as outdated.[20] The same system took into account the time it would take a driver to travel to their region;

“12. Descartes also takes into account STEM times, which is the time taken to travel from the depot to the delivery area and the time to return, as well as to allocate necessary break times. The system's planner then calculates delivery times based on freight volumes (input data), time to complete the tasks, stem times between tasks and break times. The system will adjust the runs in accordance with demands, for example where drivers have a lot of deliveries for that day, the driver will be expected to do less pickups and vice versa.
13. As at September 2023, the Descartes metric for the 4A run in Lilydale which was being performed by Harry Yu indicated the capacity for the run was 59 stops/tasks, while the average daily stops/tasks was 50.”[21]

All drivers are expected to attend for work at the Tullamarine depot, to load their truck with assigned deliveries and to then undertake the day’s deliveries and pickups. They are then expected to stop activities at a particular time and after that time, to return to the depot (referred to as the cut-off time). In Mr Yu’s case, the cut-off time was 5:30 PM. Deliveries and pickups which have not been completed are then completed by a different driver, on an end-of-day shift, with the expectation that all deliveries and pickups will be completed in the same day, whether by the day driver, such as Mr Yu, or by an end-of-day driver.

Mr Yu’s work is directly supervised by at least two people, the Duty Manager (also known as the Radio Room Manager) and a Supervisor. In Mr Yu’s case, these people were respectively Mr Abouhaila and Mr Bedi (for various times at least).

Those people in turn reported to Mr D’Angelo, the Fleet Manager. He in turn reported to the General Manager, the Fifth Person Named, who resigned from Star Track’s employment in September 2023.

Mr Yu’s bullying complaints stem from two key grievances. Firstly, he believes that Star Track’s work expectations, regarding the amount of time it should takes him to complete his assigned duties, are unreasonable, . Second, Mr Yu complains that there have been too many changes made to his starting and finishing times, as well as to the number of deliveries and pickups he is expected to make each day. Overall, Mr Yu submits that he has been bullied when he does not meet the company’s shifting work expectations, and when he complains, he has been threatened and belittled.

Mr Yu is aged well into his 60s and appears fit and healthy. He presents as a softly-spoken, respectful person. His first language is Mandarin. Although he does not speak English as a first language, his understanding of English is commendable, if not perfect. Star Track assisted him with English language lessons at various times, which he attended. I noticed in the conciliations that he appears to compensate for deficiencies in language understanding by writing notes in both languages, which he then uses for response.

Mr Yu puts forward that he has a good grasp of the geography of his assigned Lilydale region; how best to get there from Tullamarine; and how to then structure a route for delivery and pickup.

When a parcel is delivered or picked up, drivers use a handheld scanner to scan the product as a means of receipting a parcel’s movement. Star Track expect drivers to use and rely upon a “show route” option on the scanner, which maps out the most efficient route for a driver to take, with the option providing a preferred sequencing of activity from the first delivery or pickup to the last. The option also assists drivers with a recommended loading pattern for their trucks: in short, the first items for delivery are recommended for loading closest to the truck’s door.

Star Track is critical of Mr Yu for not relying on the “show route” option and point to that failure on his part as potentially being the source of inefficiency, leading to a repeated – chronic even – inability to complete a day’s assigned tasks. Mr Yu’s response to complaints such as this is that he knows his region and lays it out in his mind in ways that the “show route” option on the scanner may not know. For example, he knows peak traffic times around schools and will avoid going near them at certain times, as they may be jammed up. He may also go first to shops or factories which may be closing soon, so that their consignments are completed when otherwise they may not be.[22]

Star Track consider many of Mr Yu’s habits to be inefficient. Including for the development of his case in this matter, Mr Yu habitually writes down his experiences and things said to him. At least some of the Persons Named see this as unduly time-consuming, taking him away from his core duties of delivery and picking up. An instruction not to write in his diary is a part subject of Allegation 5.

It is observable that Star Track’s expectations about the number of deliveries and pickups assigned to Mr Yu have changed numerous times, as have his start times and shift lengths. Star Track attribute this to an attempt to respond to Mr Yu’s capabilities, but also to its need to service its customers. Of particular note are changes made to the number of pickups assigned to Mr Yu. In addition to needing to attend to ad hoc pickups,[23] two customers, JDS and JBG, require a large number of consignments to be picked up on each scheduled pickup, which according to Mr Yu, would take a considerable amount of time to load and scan. The pickups at these two customers are not every day;

Between January 2023 to 31 May 2023 the JBS pickups were scheduled for Wednesday, Thursday and Friday, and the JDS pickups were scheduled for each day Monday to Friday.[24]

By the time of the hearing, this had moved to the JDS pickup being every day, and the JBG pickup being on Wednesday, Thursday and Friday.[25]

A continuing source of conflict between the parties has been Mr Yu’s regularly rostered starting and finishing times and the work expectations for each day. The following is summarised from the evidence about the changes made to Mr Yu’s work requirements;

Date/period	Start Time	Number of deliveries and pickups
Before April 2022	7:30 AM start	Expectation of 45 deliveries and 1 pickup.[26]
April – May 2022	7 AM start	60 deliveries and 0 pickups.[27]
November 2022	7 AM start	60 deliveries and 1 pickup (JDS) with an average of 20 items per pickup.[28]
End December 2022	7 AM start	Reduction in daily deliveries from 60 to 45 with 0 daily pickups.[29]
3 January 2023	7 AM start	47 – 50 deliveries per day, 0 pickups. After a discussion about the workload given further pickups from JDS.[30]
January 2023	7 AM start	Allocated 1 further pickup (JBG) for Thursdays and Fridays comprising an average of 60 boxes.[31]
January 2023	8 AM start	Requirement for 50 deliveries per day and two daily pickups (JBG and JDS).[32]
1 June 2023	8 AM start	45 deliveries per day with 2 daily pickups, JDS and JBG.[33]
9 June 2023	8 AM start	42 deliveries and 2 daily pickups.[34]
22 June 2023	8 AM start	Assigned a driver trainer to shadow him on 23 June 2023.[35]
21 July 2023	10 AM start[36]
4 – 10 October 2023	10 AM start	Lilydale run with Driver/Trainer) (Elmi)[37]
23 October 2023 – 2 November 2023	10 AM start	Kew run with Driver/Trainer (Elmi).[38]
13 November 2023	9 AM start	40 deliveries and 2 daily pickups.[39]
31 January 2024	9 AM start[40]	35 deliveries and 2 pickups[41]

In all cases, Mr Yu is expected to finish picking up and delivering at 5:30 PM and then return to the Tullamarine depot (referred to as the cut-off time). A later start time means fewer target deliveries, but in Mr Yu’s case, with no change to the scheduled pickups. A later start time also means less capacity to earn overtime payments, as the rostered finish time remains the same meaning his income also reduces.

Mr Yu’s work has been in connection with a route in the Lilydale region, with the exception of the period between 23 October 2023 and 2 November 2023, when he was assigned to the Kew run with Mr Elmi, a Driver/Trainer and one of the Persons Named.

As may be seen from the above table and, with the exception of the work associated with the Kew run in October/November 2023, there have been four substantive changes to the start time of Mr Yu’s shifts;

Originally, he started work each day at 7 AM;

In January 2023 the start time changed to 8 AM;
In July 2023 it changed to 10 AM; and
In November 2023 it became 9 AM.

For its part, Star Track and the Persons Named in these proceedings say that the changes were made as a response to the difficulties Mr Yu was experiencing in completing his work requirements. Aside from the shift start times, consequential changes were made from time to time about other elements of the work, including the amount of loading time Mr Yu was permitted as well as the end of shift cut-off time, when deliveries and pickups would stop and he was required to return to the Tullamarine depot.

Taken as a whole, the bullying conduct about which Mr Yu complains is the combination of changes to his regularly rostered shift start time; changes to delivery and pick up expectations; and the face-to-face behaviour of the Persons Named (taking into account that only Allegations 5, 6 and 7 remain on foot and require determination through this decision).

4.2Internal Investigation

Mr Yu’s application to the Fair Work Commission was made on 28 July 2023. Before that time, he had not raised any complaints about workplace bullying internally to Star Track. Once Mr Yu’s Fair Work Commission application had been received by Star Track, Star Track moved to internally investigate the allegations. That investigation was undertaken during August 2023 by Mr Marcus Chung, Employee Relations Case Manager. Mr Yu was invited to participate in the investigation, however chose not to.[42] Mr Chung did not give evidence in the Commission’s proceedings.

Mr Chung’s investigation (the Internal Investigation) tested five allegations, which broadly correspond to three of the allegations now before me (Allegations 2, 5 and 6). Allegations 1, 3 and 4 presently before me were not the subject of consideration in Mr Chung’s investigation.

The Internal Investigation report set out a template for consideration of the degree of satisfaction that could be achieved about any particular allegation;[43]

The Internal Investigation found that the first allegation was partially substantiated, whereas the other allegations were not substantiated at all. Mr Chung’s investigation records the allegations and high-level findings;[44]

“Allegation 1 – On 31 May 2023, [GS] threatened to change Mr Yu’s region when he returned to the depot with deliveries that he could not complete. Mr Yu then met with [GS] and [the Fifth Person Named], where it was stated to Mr Yu that his delivery region would be changed if he continued to return to the depot with undelivered items.
Finding:
Partially Substantiated. Based on the available evidence the investigator is satisfied that the incident did occur but not in a threatening manner as claimed by Mr Yu. The investigator has not found any breach of Our Ethics on behalf of [the Fifth Person Named]or [DS] and finds that the conversation that took place was within the scope of reasonable management action.”

“Allegation 2 – On 22 June 2023, Mr Yu attended a meeting with Mr Robert D’Angelo, [CD], and [SB]. During this meeting, Mr D’Angelo shouted at Mr Yu in an aggressive manner, insisting that Mr Yu must complete his tasks despite road or weather conditions, or else he would ask [SB] to organise others to do his work the following day.
Finding:
Unsubstantiated. Based on the available evidence the investigator is satisfied on the balance of probabilities that these incidents did not occur in the manner that was described by the complainant.”

“Allegation 3 – On 17 July 2023 at 10:06AM, Mr Yu was approached and questioned by Mr Jaskaran Bedi concerning deliveries he was unable to complete on 14 July 2023. Mr Yu stated that he ran out of time before the cut off time to get the deliveries done and informed Mr Bedi that he had notified the radio room that he had run out of time. Mr Bedi again asked why Mr Yu was unable to complete his deliveries, to which Mr Yu replied “you are giving me pressure”. In response, Mr Bedi stated “that is my job” to which Mr Yu then replied “you are giving me too much pressure in order to make me unsafe to drive and work”, at which point Mr Bedi then stated “if you feel pressure, you can leave”.
Finding:
Unsubstantiated. Based on the available evidence the investigator is satisfied on the balance of probabilities that these incidents did not occur in the manner that was described by the complainant.”

Allegation 4 – On 17 July 2023 at 10:20AM, Mr Yu brought his scanner to [MD] to check his scans before leaving for his deliveries. Mr Dunford said, “can I check your scan”, at which point Mr Bedi entered the conversation and shouted at Mr Yu “why don’t you answer his question” to which Mr Yu replied “I don’t think I need to answer as [MD] was checking my scan”.
Finding:
Unsubstantiated. Based on the available evidence the investigator is positively satisfied that these incidents did not occur in the manner that was described by the complainant.”

Mr Chung’s investigation concluded with the following;

“Recommendations
The investigation found only 1 of the 5 allegations sourced from Mr Yu’s written correspondence was substantiated. However, it should be noted that despite the allegation being substantiated, it is the investigators findings that the interaction did not occur in the manner depicted in the allegation and that no breaches of Our Ethics occurred.
Given that I could find no breaches of Our Ethics from the allegations, and unless Mr Yu comes forward and provides additional evidence of any other incidents that have not been addressed in this investigation, that no corrective or disciplinary action be taken against the four respondents.
However, it would be remiss of me to not acknowledge that Mr Yu has a very clear issue with management at Startrack Tullamarine. As such, it may be to the benefit of both parties to hold a formal discussion with an interpreter present to allow both parties to clearly communicate grievances and expectations for the purpose of establishing a sustainable working relationship. Aside from this, I would find it harsh, unjust and unreasonable to take any corrective or disciplinary actions against any of the named respondents.
It should also be noted that despite My [Sic] Fady Abouhaila being named as one of the respondents, I could find no evidence to suggest he had engaged in any misconduct against Mr Yu, and had not been mentioned by name in any of the specific allegations submitted by Mr Yu.[45]

4.3The allegations before the Commission

Consideration of Mr Yu’s claims of conduct by Star Track and the Persons Named now before the Commission, raises not only questions about particular events and the conduct surrounding those events, but also questions about the overall period of almost 2 years of Mr Yu’s employment. Over this period, tensions between Mr Yu and his supervisors and managers, including the Persons Named, have clearly risen to the point where there is significant distrust between both.

4.4Events in the first half of 2023

In January 2023, Mr Yu held concerns about his workload and raised them within Star Track. Before 2023, Mr Yu had been mostly coping with his workload.

In late 2022 he had been assigned pickups at JDS. On 11 January 2023, he complained to the manager, KD, that he couldn’t achieve the 50 deliveries per day. Mr Yu complained that he was unable to take his meal breaks and toilet breaks, in order to complete the 50 assigned deliveries on time.

Even after raising these concerns, Mr Yu’s start time was changed from 7 AM to 8 AM and he was required to still undertake 50 deliveries per day and two daily pickups. JDS pickups were required every day of the week, Monday to Friday and the JBG pickups were required Wednesday, Thursday and Friday.

In early 2023, due to these concerns held by Mr Yu about his workload, he instructed lawyers to write to Star Track identifying his concerns, which they did in March 2023. His application to the Commission illustrates why he was concerned;

“This significant change to Mr. Yu's hours and ways of working and the consequence of this change was evident on 24 January 2023, when Mr. Yu commenced work at 8:00AM accompanied in the truck with Startrack's trainer Christian, Mr. Yu's vehicle was loaded with 50 deliveries at the depot. On this day Mr. Yu was able to deliver 38 jobs, to achieve this he was required to forego his meal break and returned to the depot at 7:30pm with a remaining 12 deliveries unable to be delivered”[46]

Star Track responded to Mr Yu’s concerns through its corporate lawyers in April 2023. Unfortunately, his complaints were not engaged with and instead were batted away as being attributable to his own conduct or things that could be remedied through coaching. Part of Star Track’s response included this;

“Mr Yu’s productivity
18. StarTrack agrees that Mr Yu has not been completing all scheduled deliveries in recent months, and has started to bring freight back. This is partly because Mr Yu has failed to communicate with the radio room and request more time to complete his deliveries, or for other adjustments to be made to his schedule. Despite Mr Yu being directed to contact the radio room when he needs assistance, he fails to do so.
19. A number of actions have been taken to support Mr Yu recently in an effort to improve his performance, including:
a. Offering help with loading, which was refused;
b. Offering driver trainers to accompany him for the day, which was initially refused, before Mr Yu acknowledged that the driver trainers were there to assist with his run;
c. Having Mr Yu leave 10-15mins earlier, to avoid traffic;
d. Offering Mr Yu another run, with fewer bulk drops, smaller items, and closer to the depot, which was refused; and
e. Having the radio room stay in contact with him during the day.

20. Mr Yu has been shadowed by a driver trainer on two occasions recently, being on 20 January 2023 and 24 January 2023. A driver trainer was allocated to review his run, including assessing the time taken to load his truck, checking that his truck is loaded in a manner which enables him to quickly find his freight to be delivered, assess his efficiency in reaching all delivery points and pick ups, knowledge of delivery areas, relationship with customer, and so on.

Way Forward
21. StarTrack intends to continue coaching and supporting Mr Yu in achieving the required performance on his delivery run. It will continue to offer the support listed above at paragraph 19 to ensure Mr Yu can achieve his target of 50 deliveries per day.
22. A meeting will be scheduled for Mr Yu to attend with his supervisor to discuss the feedback from his driver trainer assessments.”[47]

There is no evidence before me that the supervisor meeting referred to in paragraph 22 of Star Track’s letter ever took place.

4.5Performance Data

Arising out of the conciliation convened by me, Mr Yu was provided by Star Track with performance data for an extended period. The data includes a chart of the combined number of deliveries and pickups per hour for the period of November 2022 to October 2023 and shows a negative trendline, suggesting a declining performance, at least on the combined number of deliveries and pickups each day. Instead of being around 6 per hour in November 2023, it appears to be around 4 per hour in August 2023.

I hesitate to rely either on the trendline shown in the chart or the underlying data tables, as the overall data table or the spreadsheet used to compile it was not the subject of sufficient submissions or evidence about what it shows, how the data was compiled or who compiled it. The data sheets were not provided to Mr Yu or his solicitors until well into 2024 and there is no evidence their contents were considered by the Persons Named or anyone else in Star Track in their decision making about Mr Yu. There is nothing within the data sheets that compares Mr Yu’s performance in the same way against any other Star Track pick-up and delivery driver. The best that can be said about the negative trendline for his hourly deliveries and pickups is that, if it has been properly compiled, it shows Mr Yu to have a case to answer as to why there has been such a decline over a relatively defined period.

While noting those cautions, the performance data also shows the following;[48]

Consignment note numbers – a daily number generally in the 80s in November 2022 and generally in the 40s in September 2023 (noting Mr Zuo was away from work for 5 days in September 2023, and that his start time in that month had moved to 10 AM);

Time on road – generally more than 9 hours per day in November 2022 and generally more than 8 hours per day in September 2023;
No timers – there were 5 occasions in December 2022 and 3 in September 2023 (data is not shown for this element in November 2022);
Lower performance than target – there were 3 occasions on which the performance target was not met in December 2022 and 3 in September 2023.

4.6Targets

In his oral evidence, Mr D’Angelo put forward that the target for the Lilydale run should not be 50, but rather 59.[49] He also said that Mr Yu had, in the past, been achieving the target, giving these answers in response to cross-examination by Ms Preston, Counsel for Mr Yu;

“So you can see he's being held to this standard that he is feeling impossible on this run. Can you see that?‑‑‑But he's achieved that standard before.
Exactly, and he's not achieving it now, but he's still being held to this standard when he doesn't think it's achievable and - - -?‑‑‑And that's why - and I continued by saying that we are offering that support, we are listening to what he's saying.
Yes?‑‑‑He hasn't been removed from his run, which I can do.
Yes?‑‑‑Right? Because, as I said, we didn't employ Harry for the Lilydale run, we employed him to be a StarTrack driver.
Yes, and so - - -?‑‑‑And we can put him - but we haven't, which we're listening to him that he wants to be here, so we want to help him in order to be in that run.
And it actually makes sense - - -?‑‑‑That's what we're trying to do.”[50]

Since 31 January 2024, Mr Yu’s delivery targets have been reduced to 35 deliveries and 2 pickups.[51]

4.7The Enterprise Agreement/consequences of current performance

Both parties sought to rely on provisions of the applicable enterprise agreement, the StarTrack – Transport Workers' Union Enterprise Agreement 2021[52] (the Enterprise Agreement).

Star Track sought to have Mr Yu accept that changes to his start time complied with the agreement. Mr Yu sought to highlight that, despite the Enterprise Agreement providing “There will be no targets, unless otherwise agreed by the parties, on the number of deliveries per day”[53], that was not the actual situation in the Tullamarine depot.

The Enterprise Agreement provides several matters of significance in these regards.

Clause 15.4, within a clause entitled “Productivity Improvements”, sets out the following in relation to delivery targets and so far as is relevant;

“5.4 There will be no targets, unless otherwise agreed by the parties, on the number of deliveries per day and all parties agree that, as individuals, they will all perform their duties in such a manner that they will strive for continuous improvement as a joint objective.
…”

Clause 46 (Ordinary Hours Of Work) prescribes that the ordinary hours of work shall be averaged over certain cycles as well as being worked on any day Monday to Friday. The clause then deals with the spread of hours in the following manner;

“46.3 The ordinary hours of work shall not exceed eight hours per day and shall be worked continuously (except for meal breaks) between the hours of 5.30 am and 6.30 pm. The spread of ordinary hours may be altered in any depot, yard or garage by one hour at each end by agreement between the Company and the majority of employees concerned and, if the employee(s) require, the employee’s representative.”

Clause 48 provides for start times to be fixed;

“48 Start Times
48.1 A regular starting time for each employee is to be fixed by the Company. Where the Company varies or changes the regular starting time of an employee the Company must give one week’s notice of such variation or change to the employee concerned.
…”

Consultation about changes to rosters or hours of work is dealt with either directly through the Enterprise Agreement or through the Road Transport And Distribution Award 2020 which is incorporated by reference within the enterprise agreement.[54]

Clause 17 of the Enterprise Agreement (Consultation Regarding Major Workplace Change) provides for consultation over major changes which have significant effects with “significant effects” defined to include “introduction of changes to the regular roster and/or the alteration of ordinary hours of work”. If a change to Mr Yu’s regular roster or ordinary hours of work is not a change subject to clause 17 of the Enterprise Agreement, (say if it is not a “major change”) then the change would in my view be subject to Clause 31 of the Award which requires there must be consultation with any employee affected by a proposed change to their regular roster or ordinary hours of work;
“31. Consultation about changes to rosters or hours of work
31.1 Clause 31 applies if an employer proposes to change the regular roster or ordinary hours of work of an employee, other than an employee whose working hours are irregular, sporadic or unpredictable.
31.2 The employer must consult with any employees affected by the proposed change and their representatives (if any).
31.3 For the purpose of the consultation, the employer must:
(a) provide to the employees and representatives mentioned in clause 31.2 information about the proposed change (for example, information about the nature of the change and when it is to begin); and
(b) invite the employees to give their views about the impact of the proposed change on them (including any impact on their family or caring responsibilities) and also invite their representative (if any) to give their views about that impact.

31.4 The employer must consider any views given under clause 31.3(b) .
31.5 Clause 31 is to be read in conjunction with any other provisions of this award concerning the scheduling of work or the giving of notice.”

In relation to delivery targets Mr D’Angelo gave this evidence in cross-examination by Ms Preston;

“Yes. And at clause 15.4 of the agreement, which you'll find on clause 205, which is the productivity improvements provision?‑‑‑M'mm.
You can see it says:
There will be no targets unless otherwise agreed by the parties on the number of deliveries per day, and all parties agree that, as individuals, they all perform their duties in such a manner that they'll strive for continuous improvement as a joint objective.
Do you see that?‑‑‑Yes.
Did you know about them?‑‑‑Yes.
But you're still holding him to targets?‑‑‑We're over, um, any of it if he's – if he's not making those targets, because every – every area has a required productivity, and we – and we – and we still need to, um, receive in order for the – the word I'm looking for, remuneration – it's a hard word, right – that we give our people, there's a requirement of productivity that we – that would be required by that. If were doing something that was not right, the union would always step in.”[55]

Mr D’Angelo also endeavoured to reassure Mr Yu he would not lose his job because of a failure to achieve Star Track’s targets, again in answers to Ms Preston;

“He is worried - - -?‑‑‑He's got - Harry's had no issue in terms of his employment. That's never in jeopardy. If he's got stress - he's always got employment, a job.
Well - - -?‑‑‑We were not going - we're not going to ever sack him over it.”[56]

Mr Yu does not put forward that he believes dismissal is imminent.[57]

Matters associated with the Award’s Clause 31 were not the subject of evidence before me. Star Track though sought to have Mr Yu agree it had a right arising under Clause 48 of the Enterprise Agreement to change his regularly rostered start times.[58] Such would depend on a finding that Clause 48 of the Enterprise Agreement was inconsistent with the provisions of the Modern Award and thereby should prevail. An implication of such a finding would be that the Enterprise Agreement had no provision which satisfied the obligation of the FW Act to include a term which required consultation with employees over changes to their regular roster or ordinary hours of work.

4.8Consideration of specific allegations

I now consider each of the allegations made by Mr Yu in detail (noting that for the reasons above only Allegations 5, 6 and 7 require determination and that it is unnecessary to determine Allegations 1, 2, 3 and 4).

Sequentially it is best to deal first with Allegation 6 (referring to events in June 2023), before dealing with Allegation 5 (events in July 2023)

Allegation 6 – Threat to change region/redistribute work if returned to depot with undelivered items – June 2023

At the core of Mr Yu’s sixth allegation are complaints that Mr D’Angelo demanded that Mr Yu do all of his deliveries and pickups within the allotted time and that if he failed to do so, his delivery region would be changed. These things were allegedly said to Mr Yu on 22 June 2023. The allegation also puts forward that Mr Yu was then assigned a driver trainer on the following day to shadow him in his activities. Mr Yu complains that Mr D’Angelo’s demeanour towards him in the meeting on 22 June 2023 involved aggression and shouting.

Mr D’Angelo’s recollection is that the meeting on 22 June 2023 came about because Mr Yu’s concerns about mounting pressure on him had been recently drawn to his attention. The meeting involved not only Mr Yu and Mr D’Angelo, but also SB, a driver liaison employee and CD a driver trainer and senior union delegate.[59] Mr D’Angelo says in his witness statement about the meeting;

“26. Harry said that he only had 5.5 hours in which to complete his tasks, and this was not enough time to take a lunch break. Initially Harry believed that he was entitled to a 1-hour lunch break.
27. I reiterated that Harry's lunch break must be taken daily, regardless of whether he is behind in his work. I also confirmed that he was entitled to a 30-minute lunch break only and the expectation that Harry would communicate with the radio room if he was having problems getting through the tasks. I explained that where possible, the radio room would assist.
28. I know it is a legal requirement to have a lunch break, and that if a driver is not taking their scheduled breaks it could be a fatigue management issue. I would never condone a driver being disciplined for not completing their tasks because they had to have their scheduled breaks.
29. I confirmed with Harry that his supervisors and higher duties had previously tried to assist with Harry's concerns about not having enough time by offering him an alternative run route to assist him with meeting his task allocation and reducing his stops from 50 to 45 stops a day. Generally, the higher duties is the person who directly discusses the runs and assists with planning for the drivers in their team.
30. Harry had declined the alternative run, but his stops were reduced from around 6 June 2023, when his delivery target had changed from 50 to 45 (being 43 stops and 2 deliveries). Harry said he felt the supervisors were trying to remove him from the Lilydale run when they offered him alternative runs. Harry did not identify any individual supervisors.
31. I explained that this was not the case, and the alternative runs were offered as there may be an easier run available with less pickups. Even though Harry declined this offer I thought this approach might go over better for him than if I'd simply told Harry that pickups are part of his job. I also thought that it would be a good idea to change the run that he was doing to one with less (or no) pickups. I felt that despite my efforts to help, support and accommodate Harry, he was an unwilling participant in the conversation.”[60]

Mr D’Angelo says that after these things were said, Mr Yu then raised concerns about his daily pickups, saying to Mr D’Angelo that he did not want to be doing pickups at all, which Mr D’Angelo felt was inconsistent with Mr Yu’s role as a pickup and delivery driver. Mr D’Angelo later arranged for Mr Yu’s Lilydale daily pickups to be pushed back by 30 minutes to allow Mr Yu more time to complete his deliveries first. Mr D’Angelo says that Mr Yu stated that he wanted to start at 7:30 AM, to which Mr D’Angelo responded that it “wasn’t possible as that earlier start time was available for drivers that were exceeding the number of stops required for their runs”.[61] Mr D’Angelo says that Mr Yu then agreed to doing 43 deliveries and two pickups, confirming that he had the capacity to perform that task allocation. After this conversation, Mr D’Angelo communicated a decision to Mr Yu, with which Mr Yu disagreed;

“36. I confirmed I would send a Driver Trainer out with Harry to further review the run route, to determine if any further changes were required. I then addressed the expectations of all drivers. As I was talking Harry said words to the effect of, “no, no, you are the boss and you can do what you like”. He believed that I could make whatever rules I choose, though this is not the case. At the top of the chain is our Enterprise Agreement and culture, minimum standards and procedures falls under this.
37. As I tried to get him to be as clear as possible to help him understand, Harry would be disruptive and antagonise in response. I also felt that Harry was getting agitated because he was interjecting and getting loud. He would also sit with his arms crossed and refuse to talk for an uncomfortable amount of time. We would ask if he was okay, and he would respond words to the effect of "I don’t agree."”[62]

Mr D’Angelo denies shouting at Mr Yu during the meeting or at any time, but acknowledges he may have raised his voice when Mr Yu was speaking over him to say “Can you please calm it down and listen to what I'm saying”[63] and;

“I did not say Harry must do his work regardless of road or weather conditions. Nor did I ever threaten to change his route and replace him. I explained to Harry what every driver's task is. I said as a driver you're required to do this particular run. You're required to do those stops. If you have any challenges that's when you raise it with your supervisor. If we have to make amendments, then we look to manipulate the numbers. Harry did not listen to this explanation. He calls it threatened time changes and took that as punishment.”[64]

The following day, 23 June 2023, Mr D’Angelo recalls seeing Mr Yu in the depot and began talking to him, including about matters which had been discussed in the previous day’s meeting. Mr D’Angelo’s evidence is that he reiterated to Mr Yu that breaks needed to be taken and that “our role is to put drivers in runs, provide them with 8 hours of work and provide a safe and prosperous environment for them to do so”.[65] Further;

“48. Harry was exactly the same in his conduct as the previous day. He closed his eyes, went silent, didn't respond for a while, and then said words to the effect of "I don't agree."
49. I deny that I behaved aggressively or shouted at Harry. I did not insist that he must complete the tasks assigned to him on that day no matter the road conditions or weather.”[66]

Mr Yu’s answers in cross-examination by Mr Spargo, acting for Star Track and the Persons Named, on the discussion on 22 June 2023 is illuminating, with him being precise about which of Mr D’Angelo’s contentions he accepted and which he did not. He stated that he thinks his memory of the meeting is “relatively clear, but I couldn't say that I clearly remember each sentence I have said or everyone's - each sentence they have said”.[67]

In his responses to Mr Spargo for Star Track, Mr Yu denied;[68]

that Mr D’Angelo had said to him that his supervisors and higher duties had tried to assist him by reducing his stops from 50 to 45 per day;

Mr D’Angelo had explained to him that the supervisors were not trying to move him off Lilydale but instead giving him the option of an alternative run which might be easier with less pickups;

that after Mr Yu expressed concerns about his daily pickup times, Mr D’Angelo said he would organise for his daily pickup times to be pushed back by 30 minutes;
he had requested a change to a 7:30 AM start time; and in response Mr D’Angelo had said that a 7:30 AM start time was not available as it was only being used for drivers who were exceeding the number of deliveries required by their run;
that Mr Yu said to Mr D’Angelo that he had the capacity to complete 43 deliveries and two pickups or that he specifically said “I have the capacity to complete that task”.

Mr Yu however agreed;[69]

that he had raised with Mr D’Angelo a concern about his daily pickup times;
the two had discussed how many deliveries and pickups he was doing;
Mr Yu discussed that he was doing 43 deliveries and two pickups.

With respect to the question asked of him about his capacity to do 43 deliveries and two pickups, Mr Yu gave the following evidence in cross-examination;

“Do you recall a discussion about how many deliveries and pick-ups you were doing during this meeting?‑‑‑He did.
And you spoke about the fact that you were doing 43 deliveries and two pick-ups; is that correct?‑‑‑He said it to me.
I'm going to suggest that you said to Mr D'Angelo that you did have the capacity to complete that task?‑‑‑I never agreed on that.
Okay. You may not have agreed, but did you tell him, 'I have the capacity to complete that task'?‑‑‑I didn't say that I can complete this kind of task because this is impossible.
So what did you say?‑‑‑Yes. I tried. In the meeting I tried to explain that the pick-up from [JBS] will take 40 to 90 minutes and another 20 minutes in another location and, however, they calculated instead of pick-up, just as the two units of deliveries. So 43 plus two equals 45 deliveries and I tried to explain to them that's not possible because one delivery only takes seven minutes and a half, but then the pick-up takes much, much longer. Yes, but they just interrupted me. You know, I explained all of this to them.”[70]

The allegation set out in Mr Yu’s Outline of Submissions alleges that on 22 June 2023, Mr D’Angelo “threatened to source another driver to complete Mr. Zu’s region if he continued returning to the depot with undelivered items”. Mr D’Angelo’s evidence, pertinent to 23 June 2023, was that he did not say someone else would be sourced “to complete the Lilydale run if Harry did not complete his deliveries”.[71] Mr D’Angelo was not cross-examined on this matter,[72] and none of the other material before me leans to a finding that such a threat was actually made.

Star Track’s letter to Mr Yu of 5 April 2023, responding to Mr Yu’s solicitor’s correspondence undertook that a meeting would be scheduled with Mr Yu and his supervisor to discuss the feedback from the driver assessments, however the meeting never took place.[73] Mr D’Angelo did not know about the commitment. None of the material before me would suggest that the meeting held with Mr Yu on 23 June 2024 is the one referred to in Star Track’s 5 April 2023 letter.

When the Internal Investigation was finalised, Mr D’Angelo was sent a letter on 4 September 2023 by Richard Whetton, Star Track’s State Operations Manager VIC/TAS, instructing him to hold such a meeting;

“The outcomes of the investigation
After taking a close look at the evidence, and considering the Investigating Officer’s recommendations, I agree with the findings of the Investigating Officer and conclude that you did not engage in bullying.
It’s important to us at Australia Post Group that every employee is treated fairly, so I’ve looked at the investigation process closely and I’m satisfied that it was thorough and fair, and that you were given the proper opportunity to respond to the allegation. I’ve also looked at each piece of evidence carefully and decided that your behaviour in relation to this matter did not breach Our Ethics and Minimum Standards and as such no action will be taken against you in relation to the matters investigated.
After looking closely at the evidence gathered during this investigation it has been identified that a language barrier exists which is hampering communication between both parties. I have therefore decided that the following action should occur to assist in maintaining a sustainable working relationship between you and work centre management.
·both parties to hold a formal discussion with an interpreter present to allow both parties to clearly communicate grievances and expectations.”[74]

The evidence does not address whether this meeting ever took place; however, I note Mr Bedi’s evidence in which he says he was instructed the same, but that it his understanding that “the meeting didn't take place because Harry refused to participate. I was, and still am, open to attending a meeting for this purpose.”.[75]

In his evidence, when cross-examined by Ms Preston, Counsel for Mr Yu, Mr D’Angelo accepted that Mr Yu felt unsupported in his complaints about workload and work pressures:

“He is communicating to you that his stress is due to the pick‑ups; yes?‑‑‑Yes.
That he doesn't have enough hours in the day to do his job, and that he wants extra hours?‑‑‑Yes.
That he wants - he's worried about the threat - and you don't call it a threat - that's okay - but in his mind, it's a threat. You understand that, don't you, of being forcefully transferred to another run; yes?‑‑‑I don't agree with the word 'forcefully' being transferred to another run because, as I keep repeating myself - right - we tried to listen to, one, our system and, two, the driver's concerns.
Okay. Let me rephrase. He is worried about being taken off the Lilydale run and being put on to another run without his agreement?‑‑‑Yes.
You knew that?‑‑‑Yes.[76]

Allegation 5 – Pressure to deliver all packages – July 2023

Allegation 5 relates to things said and done by Mr Bedi, particularly on 14 and 17 July 2023. Because of the proximity of these matters, both in subject and time, to a matter raised in respect of Mr Abouhaila, I consider it prudent to deal with that subject alongside the matters relating to Mr Bedi.

Mr Bedi’s role with Star Track has been subject to change over the relevant period of this application, with him working in various positions, most relevantly as a Supervisor in July 2023. In fact, 14 July 2023 was his first day in that role.[77] Mr Bedi describes the supervisory role in this manner;

“As a Supervisor, my primary duties included preparing paperwork for the drivers and providing general support and supervision while drivers are still at the Depot. General support and supervision includes following up with drivers who were unable to complete their allocated tasks. My duties do not include staffing the radio and I do generally will not have any contact with drivers when they return. Once drivers have left for their runs, Supervisors will generally reply to emails, follow up any issues, and plan for the next day.”[78]

Mr Yu alleges that Mr Bedi was responsible for allocating a disproportionately large number of delivery jobs to him on 14 July 2023, which were allocated throughout the region, whereas another driver received only 15 jobs. How that amounts to bullying as defined, is not clear to me, and no evidence of substance has been led on this part of the allegation. I therefore do not consider this aspect of the allegation any further.

Mr Yu says that Mr Bedi approached him, before he left the depot on 14 July 2023, and asked about his no timers. He says that such conversations happened quite often.[79] The performance data prepared by Star Track and provided by Mr Yu to the Commission shows that on 13 July 2023, Mr Yu had 4 no timers and had 6 on 14 July 2023.

Mr Yu states that he responded by saying words to the effect that he had insufficient time for pickups, and agrees that after he said these things, Mr Bedi told him how he should direct his efforts, “something along the lines of, 'Try your best not to bring anything back today”.[80] Mr Yu does not put forward this particular allegation in his written witness statement, saying instead;

“… when I told him that he was giving me too much pressure to deliver all packages despite there not being enough time, Mr Bedi replied words to the effect of “that is my job”. I expressed to Mr Bedi that that the pressure was making me unsafe to drive and work, to which Mr Bedi replied words to the effect of “If you feel pressure, you can leave!”.”[81]

In his oral evidence, Mr Yu accepted Mr Bedi had said to him words to the effect, “It is my job to ask you questions about your returns” and maintained that Mr Bedi also said “If you feel pressure you can leave”.[82] He also agreed that Mr Bedi had said to him words to the effect that he should “try your best not to bring anything back today” (being a formulation of words set out in Mr Bedi’s witness statement).[83]

Mr Bedi’s oral evidence dealt with what he meant by this statement, giving this explanation in cross-examination by Ms Preston;

“I'm sorry. So what you said to him, when he said he was having no time left due to pick-ups and handling boxes manually, you said that you don't really recall what you said, but you might have said to him, 'Try your best not to bring anything back'?‑‑‑Yes.

Yes, and so that's not a particularly helpful comment, is it, when you know that this is an ongoing issue?‑‑‑'Try not to bring anything back', as in just to encourage him, friendly. I have been very friendly with my team and all of the drivers. It was just in a friendly manner I told him, 'Try not to bring anything back. Do your best.' That's it.
Well, 'Do your best', and 'Try not to bring anything back', that's not the same thing, is it?‑‑‑According to me, yes.
So you're saying that if he does his best he won't bring anything back?‑‑‑'Try your best', not, 'Do your best.' 'Try your best.'
But you think if he does try his best he won't bring anything back?‑‑‑He can try.
And so you say you try to offer the maximum support to people with a view to minimising no timers?‑‑‑As a supervisor, yes.
Yes, and that, I suggest, is not doing your best to support Harry in identifying any issues and providing support to prevent no timers being brought back going forward. What do you say about that?‑‑‑I'm sorry, I didn't get your question. I'm sorry, can you repeat?
I'm saying that's not helpful, that comment that you made, where he has got an ongoing problem and he's saying, 'I can't actually manage my workload. I'm going to bring things back', for you just to say, not to ask him, 'Well, what is the issue exactly?' You know, 'Why are you having trouble loading it?' You're not asking questions like that that will help him. You're just telling him, 'Well, don't bring items back. Try your best and don't bring items back.' You accept that that's not particularly helpful in actually getting a better resolution of this no timers issue?‑‑‑Yes.
You accept that nothing is going to change from a comment like that? You accept that, don't you?‑‑‑Well, I have seen that you can try. He can maybe. That's the whole point. I'm telling him to try.”[84]

Mr Yu says that later the same day, on 14 July 2023, he notified the depot by radio that he had run out of time to complete all deliveries and would be returning to the depot with undelivered items.[85] There appears to be some confusion in the Applicant’s oral evidence as to whether this was a radio communication with Mr Bedi, or if it was instead a communication with Fadi Abouhaila (the phonetics of “Bedi” and “Fadi” are similar), however most of Mr Yu’s oral evidence on the subject makes reference to “Bedi”.[86] Mr Abouhaila notes a similar confusion in respect of what Mr Yu says about him, with Mr Yu asserting he spoke by radio with Mr Abouhaila on 6 June 2023,[87] which the latter says was not a conversation with him.[88]

These events took place on Friday, 14 July 2023 and Mr Yu’s next scheduled work was on Monday, 17 July 2023. On that day, Mr Yu says that Mr Bedi confronted him about the return deliveries and when Mr Yu told him that he was under too much pressure to deliver all the packages, despite there not being enough time, Mr Bedi responded with words to the effect of, “that is my job”.[89]

Mr Bedi accepts that, before becoming the supervisor on 14 July 2023, he already had some context for the difficulties being faced by Mr Yu in the performance of his duties. He knew that Mr Yu had been bringing back deliveries and that the issue had been raised by Mr Yu about the pickups.[90] Mr Bedi accepts that he approached Mr Yu on 14 July 2023 about the no timers and asked Mr Yu the reason for there being four the day before.[91]

Mr Bedi also accepts that, on the day he discussed these matters with Mr Yu, the latter had a load of more than 100 boxes to be picked up.[92] While hesitant to call that a “large load”, Mr Bedi accepted that it was “more than normal”.[93] Mr Bedi also said, in cross-examination by Ms Preston, that monitoring of the drivers’ loads occurred only when a driver was asked about their no timers;

“And do you monitor the number of boxes that are getting picked up at different points in time?‑‑‑Only when we ask him about the no timers and he tells us how many boxes he picked up.
So you just rely on what he says?‑‑‑Yes.
But otherwise you don't investigate the actual number of pick-ups?‑‑‑Pick-up or boxes?
Pick-ups. The number of boxes that he's picking up?‑‑‑No.
You don't know. So how do you know what's a big load and what's a little load?‑‑‑So if he tells us - if he tells that there was traffic issues, then it's a different story, but if he tells us that there was a pick-up issue, then we ask him how many boxes did he pick up.”[94]

Mr Yu’s concerns also turn to discussions with Mr Bedi on 17 July 2023, articulated in his witness statement in the following way;

“24. On 17 July 2023, Mr. Jaskaran Bedi confronted me about the returned deliveries, and when I told him that he was giving me too much pressure to deliver all packages despite there not being enough time, Mr Bedi replied words to the effect of “that is my job”. I expressed to Mr Bedi that that the pressure was making me unsafe to drive and work, to which Mr Bedi replied words to the effect of “If you feel pressure, you can leave!”. On the same day, Mr Matt Dunford asked me if he could check my scan, to which I complied and handed him my scan. Mr. Jaskaran Bedi then approached me and Mr Dunford and unreasonably shouted at me, saying words to the effect of “why you don’t answer his question!”, despite the fact that Mr. Dunford was already checking my scan.
25. On 17 July 2023 at around 10.30am, I was writing notes in my small notebook in the depot, when Mr. Jaskaran Bedi approached me and began shouting at me aggressively and unreasonably, saying words to the effect of “you cannot write here, you write need to use your own time, cannot use working time to write, you stop writing now and leave the depot”.” [95]

Mr Bedi accepts that the two had a conversation on 17 July 2023 about the return deliveries and that, in the course of the conversation, Mr Yu pulled out his diary. When he was asked about the return deliveries, Mr Yu made a reference to having sent Mr Bedi a text message through his driver’s scanner. Mr Bedi gave evidence in cross examination by Ms Preston that he then suggested Mr Yu might wish to look at another run, giving this evidence;

“At that time you said and what did he say?‑‑‑I asked him and because he doesn't want to reply. He said, 'Everything, I have sent a text.'
He did what?‑‑‑'I sent a text. I don't need to reply to you.'
That's what he said to you?‑‑‑Yes.
And did he send a text?‑‑‑Through his scanner maybe. Through his scanner.
I'm sorry, I don't understand?‑‑‑So you know if a driver is having trouble on the road he send a text through his scanner which goes to the radio.
Yes, to the radio room?‑‑‑To the radio room. Yes.
And you suggested that if he was feeling pressured he should look for a more suitable run?‑‑‑Yes.
I mean you don't know whether there's a more suitable run available?‑‑‑No.
And he might encounter the same problems on a different run that he was encountering on this run?‑‑‑I also mentioned, which is less bulky and so less pick-ups.
What do you mean by bulky?‑‑‑Which is called less boxes to load.
So the number of boxes rather than the size?‑‑‑Yes.
But you couldn't say for sure that there was a run that had less movement of boxes than what he had to do on the Lilydale run?‑‑‑No. At that time, no.
And do you say that you're not aware of a supervisor ever moving a driver's run without consulting the driver?‑‑‑Yes.
Would you be surprised if there was a requirement to move runs in circumstances like this?‑‑‑I just gave him a suggestion, but it was all on him if he wants to do that.
Yes, but he didn't want to leave the Lilydale run?‑‑‑He said nothing though.
Did you know that he didn't want to leave the Lilydale run?‑‑‑No.”[96]

Although it is not explicitly stated in Mr Yu’s outline of submissions that the following is a specific allegation of bullying attributable to Mr Bedi, its proximity to the events complained about on 14 and 17 July 2023, and its centrality to the complaints raised by Mr Yu, require it to be taken into account;

“On 21 July 2023 at approximately 9.30am, Mr. Jaskaran Bedi gave me notice that my start time would change from 8:00am to 10:00am. The change to my start time from 8:00am to 10:00am reduced my income by $500 per week.[97]

Later that day both Mr Yu and Mr Bedi discussed this subject with Mr Abouhaila.

Mr Bedi’s evidence about the change in start time is that, before making the change, he first consulted with two managers, including the Fifth Person Named, and;

“The purpose of the decision to change Harry's start time was to help Harry achieve his targets. By moving Harry to a 10.00 am start, his ordinary hours remained the same we were able to reduce his target deliveries to approximately 30-35 (down from 42 deliveries, which was already reduced from 50), which I felt would be far more achievable.”[98]

Mr Bedi felt justified in making the change because of the provisions of the Enterprise Agreement;

“61. The letter confirmed that Harry would have a week's notice prior to the change in his start time taking effect. This is in accordance with the requirements of our enterprise agreement, particularly clause 48.1 of the StarTrack -Transport Workers' Union Enterprise Agreement 2021 which states that "A regular starting time for each employee is to be fixed by the Company. Where the Company varies or changes the regular starting time of an employee the Company must give one week’s notice of such variation or change to the employee concerned". …
62. Drivers are only allowed to deliver until 5.30pm. Therefore, the written direction reduced his overall hours to 8 or 9 hours a day, rather than the 10 to 11 hours that Harry had been doing (because he was not finishing his deliveries in time). His ordinary hours remained the same, but his overtime hours were reduced. I acknowledge that this would have the effect of reducing his overall pay, however I considered this was necessary for operational reasons because Harry was simply not finishing his deliveries in ordinary time or at all.”[99]

In cross examination by Mr Spargo, it was put to Mr Yu that the change in start times was consistent with the Enterprise Agreement;

“All right. Now, on 21 July you've given evidence that Mr Bedi gave you notice that your start time would change to 10 am, is that correct?‑‑‑Yes.
Can I take you to page 226 of the court book please, Mr Yu? Are you there, Mr Yu?‑‑‑Yes.
Can you look at the clause 48, 'Start times' and the second sentence:

Where the company varies or changes the regular starting time of an employee, the company must give one weeks' notice of such variation or change to the employee concerned.
And Mr Bedi did give you one weeks' notice of a change to a 10 am start time, didn't he?‑‑‑Yes.
So do you accept that the notice you received was in accordance with the enterprise agreement which applied to you?‑‑‑He has no reason to change the time.
Okay. But it was in - I know you're concerned about the reason, but it was in accordance with the company's rights, under the enterprise agreement, wasn't it?‑‑‑Yes.”[100]

As referred to above this construct of the Enterprise Agreement depends on the view that Clause 31 of the incorporated Modern Award, which obliges consultation over changes to changes to regular rosters or hours of work, is inconsistent with Clause 48 of the Enterprise Agreement, and so has no application and that by implication the Enterprise Agreement had no provision which satisfied the obligation of the FW Act to include a term which required consultation with employees over changes to their regular roster or ordinary hours of work.

There are three elements in Mr Yu’s complaint about Mr Bedi. The first and second elements are allegations that he was shouted at by Mr Bedi on 17 July 2023, in two different events, first for not answering questions and second, later that day, when he was prohibited from writing notes in his notebook. The third element is the allegation that, a few days later, on 21 July 2023, Mr Bedi changed Mr Yu’s start time to 10 AM, leading him to suffer a large reduction in his income.

The evidence in relation to the first two matters is incomplete and does not entirely resolve whether the conduct complained about by Mr Yu occurred. After considering the evidence, I consider that it is more likely that Mr Bedi asked Mr Yu questions, which were not initially responded to by Mr Yu and that he then pressed the point, asking that they be answered, but not doing so in a manner that would be considered to be shouting. In respect of the allegation that Mr Bedi asked Mr Yu not to write in his diary about the matters then being discussed, the evidence resolves on the basis that Mr Bedi in fact asked that to happen, albeit that he did not do so in a way that was unreasonable or intimidating.

Mr D’Angelo’s evidence about his knowledge of the Internal Investigation report was unconvincing, with him endeavouring to give the impression that, even though the document was attached to his witness statement, he could not recall whether he had read it. Such lacks credibility, given his status as the main spokesperson in these proceedings for himself, his employer and the other Persons Named. The fact that Mr D’Angelo claims to not recall the document’s content or speak to what it had found, when he puts forward an apparently firm recall about other events around the same time, diminishes the extent to which I am able to accept his evidence on those matters.

That said, Mr D’Angelo’s evidence is generally capable of acceptance, as that of a manager once or twice removed from Mr Yu, endeavouring to deal with a difficult and problematic workplace dispute.

While accepting Mr D’Angelo’s evidence in generality, I do not go so far as to find that all of his actions were above criticism.

Mr D’Angelo did not endeavour in his conversations with Mr Yu to listen to his complaints or meaningfully engage with them, especially about the number of daily pickups and accept the complaints as something that required enquiry and investigation. There is no question that Mr Yu was trying to alert him to the difficulties he was experiencing in performing his job and in particular the difficulties associated with the work associated with the JDS and JBG pickups. Those complaints were not properly received and acted upon when they should have been, if not by Mr D’Angelo, then by a Supervisor or Higher Duties. Mr Yu did his best to alert Mr D’Angelo to a problem perceived by him. He was not being belligerent or argumentative, but wanted his concerns to be investigated and resolved. Mr D’Angelo failed to do this when Mr Yu’s desire was reasonable.

Mr Yu, even when speaking through an interpreter, tended towards very short and clipped statements, and evidently expresses frustration when his views are not engaged with or accepted. I accept that some of that may be a product of language difficulties. The evidence generally does not suggest that Mr Yu at any stage communicated with Mr D’Angelo or other supervisors in a way which would be considered inappropriate, Mr Yu was merely expressing legitimate concerns he held. Frustrated, certainly, but not inappropriate.

Mr Bedi endeavoured to present as something of a newcomer to the dispute, with the main allegations against him taking place on the first day of his appointment as a supervisor of Mr Yu. That presentation though was at odds with his obvious knowledge of the difficulties of managing Mr Yu, even at the point that he first came into the supervisory position. He plainly was not a novice when it came to understanding Star Track’s concerns about Mr Yu or what he was expected to do about those matters.

I accept Mr Yu’s evidence that he was questioned firmly by Mr Bedi as well as being instructed not to write in his diary, but do not go so far as to find that Mr Bedi shouted at or was aggressive towards Mr Yu. The context of the three discussions (14, 17 and 21 July), are all about the efforts being taken by Mr Bedi to hold Mr Yu to the targets he was expected to work to. The context of those meetings and the likely matters discussed do not easily suggest the conversations should be viewed as intimidating in and of themselves.

The concerns Mr Yu held about Mr Bedi saying words to the effect of “try your best to not bring anything back” are overstated, and those words themselves are not objectively unreasonable. The phrase was likely said close to the stated formula and is at worst passively unhelpful, likely being just a phrase to say when a supervisor has nothing else to say.

The statement attributed to Mr Bedi of having said, “that is my job”, when Mr Yu told him he felt pressured by the questions, are likely the product of difficulties with language on the part of Mr Yu. Mr Bedi recalls having said “"it is my job to ask you the questions about your returns”.[117] I consider it more likely that Mr Bedi used words close to those mentioned by him.

I consider that Mr Bedi’s questions to Mr Yu were reasonable, so far as they went.

Mr Yu raises the allegation that Mr Bedi shouted at him aggressively and unreasonably. The context of the discussions, the words attributed by each to the other and the absence of clear evidence there was actual shouting suggests likely there was not.

However, a consideration of the overall evidence about the interaction of the two demonstrates that Mr Bedi likely did not want to hear reasons from Mr Yu as to why he may be unable to perform the work expected of him, or to enquire into what could be done about those concerns. In his conversation with Mr Bedi, Mr Yu was putting forward firmly that, one of the particular reasons he could not complete his work as expected was because of the volume of parcels involved in the two scheduled pickups and the time taken to receive, scan and load the consignments. A reasonable supervisor would have engaged with what was being said by Mr Yu about the subject; asking him questions about his concerns; investigating whether those concerns were rationally held; and then inviting discussion about those matters. None of those things were undertaken by Mr Bedi.

The direction by Mr Bedi to Mr Yu to not write in his diary was reasonable. By the time the direction had been given, Star Track and its supervisors were obviously aware of Mr Yu’s practice and of the opinion that this was in itself an inefficiency on the part of Mr Yu, notwithstanding that Mr Yu was entitled to document the concerns he held about what was being asked of him by his employer. Mr Bedi’s direction to Mr Yu, to not write in his diary, needs to be taken as a direction that Mr Yu do so in his own time. There is nothing inherently wrong with such a direction, even given the likely view of Mr Bedi and others, that this was an inefficiency on the part of Mr Yu.

Mr Abouhaila’s actions were chiefly in relation to the change in start time direction given to Mr Yu and his subsequent complaint about the direction. Nothing within Mr Abouhaila’s evidence about this interaction suggests he went into the discussion with an open mind: his role was to reinforce to Mr Yu the decision that had already been made. He did not wish to listen to why Mr Yu objected to the change, or why Mr Yu was returning with undelivered parcels. However, he too had context for Mr Yu’s concerns and the difficulties he was experiencing. While Mr Abouhaila also may be criticised for insufficient consideration of, or inquiry into Mr Yu’s reasons, what he said or did in the meeting was not of itself unreasonable, in the sense of lacking an evident and intelligible justification.

Of all the witnesses, Mr Elmi was the most credible, and observably the most neutral. His evidence is the one which tips the balance in the findings I now make.

Mr Elmi travelled with Mr Yu for 14 shifts in October and November 2023, both in the Lilydale region and the Kew region. His key findings about those shifts are set out above. Of all the witnesses before me, Mr Elmi is the one at most distance from the supervisory/management arrangements of Mr Yu. That is, as a driver/trainer, he is not in the direct supervision path of Mr Yu. The manner in which he gave his oral evidence, as well as the content of that evidence, shows him to be dispassionate about the overall situation and the allegations made by Mr Yu.

Mr Yu accuses Mr Elmi of having directed him to perform at least one unsafe U-turn in Kew, which Mr Yu refused to do. Mr Elmi rejects the accusation. The evidence in this particular situation is basic, with no independent corroborative evidence available or elaboration of when and where the direction was given. The evidence does not establish the complaint Mr Yu advances. In the context of a parcel delivery service operating in busy suburban streets with an overall imperative of same-day delivery, I consider it possible that Mr Elmi did push Mr Yu to undertake a U-turn about which he was uncomfortable. If this occurred, it may have arisen out of frustration on the part of Mr Elmi about Mr Yu’s lack of urgency or unpreparedness to accept feedback or suggestions as to performance of his work. That said, with Mr Yu being the driver of the vehicle, with responsibly for the ultimate safety of the vehicle, its passenger and its contents as well as safety of other road-users and pedestrians, a decision to refuse to do a U-turn was plainly within his rights.

While noting that blemish within Mr Elmi’s evidence as well as noting that Mr Yu contests many of Mr Elmi’s observations, I prefer the evidence of Mr Elmi to that of Mr Yu where there are differences or inconsistencies between the evidence of the two.

The evidence of Mr Elmi establishes two things critical to the disposition of this application;

First, Mr Yu demonstrably has difficulty in performing the tasks asked of him, within the time allowed.

Second, Mr Yu is unwilling or unable to accept feedback about his performance.

In the context of the overall evidence given to me, these are chiefly issues to be addressed by Star Track, but also by Mr Yu. In this regard, it has been stated categorically by Mr D’Angelo that Mr Yu’s job is not under threat, regardless of his delivery and pickup challenges as well as the Enterprise Agreement having the status, according to Mr D’Angelo of being “at the top of the chain”[118] and providing “there will be no targets, unless otherwise agreed by the parties, on the number of deliveries per day”.[119]

At the practical level, in Mr Yu’s workplace, there are obviously targets on the number of deliveries per day and employees are expected to meet them, and they will be challenged if they do not. Despite saying on many occasions that “support” will be provided to Mr Yu, in order to meet those targets, the “support” is ethereal, with the exception of the very detailed assistance provided by Mr Elmi, which only came about as a result of matters recommended in the conciliation before me. Having taken the view that Mr Yu is, for whatever reason, unable to deliver and pick up the assigned number of parcels in his region within the time allocated, the support appears to be limited to reinforcing what the expectations might be and questioning him when those expectations are not met.

There is ample evidence before the Commission, put forward by Mr Yu on multiple occasions, that the assignment of the JDS and JBG pickups created a problem for him and were, so far as he was concerned, a significant part of the reason why he was unable to meet Star Track’s targets on the number of deliveries per day.

These complaints were not listened to or inquired into, and it is borderline unreasonable that they were not. While Mr Yu was being criticised for his performance, Mr Yu was explaining why his performance lacked, with no one listening or acting. Were it not for the driver/trainer reviews conducted in October and November by Mr Elmi, this failure would be open to a finding of unreasonableness.

It is apparent from Mr Elmi’s reports, which I accept, for the reasons set out above, that Mr Yu has problems of some significance in achieving his daily targets. Mr Elmi’s review of Mr Yu was conducted after the timing of Mr Yu’s principal allegations and the making of the application that is the subject of this decision.

It is inescapable from Mr Elmi’s evidence, which I accept, that Mr Yu does not work as efficiently or productively as he could, is resistant to accepting commentary about how he could work more efficiently and is particularly unreceptive to ideas which come from people within the management chain. While there are only limited things which Mr Yu can do about his physical capabilities, there are potentially a greater number of things which can be done in respect of his work practices.

On their own, those observations about Mr Yu do not demonstrate an absence of bullying behaviour. However, what they do, within the context of the matters requiring determination in Mr Yu’s case, is to illustrate objectively the managerial context within which his complaints were dealt with. That context, while certainly of a rigorous and target-defined delivery service, is also one in which imperfections of performance on the part of Mr Yu are evident. The reviews conducted by Mr Elmi and his very detailed critique of Mr Yu’s performance, which may be accepted as objective and largely balanced, legitimise the questions posed of Mr Yu by each of the Persons Named.

Mr Elmi’s critique of Mr Yu’s performance stands as objective evidence, both about workload, as well as about Mr Yu’s capabilities and areas for improvement. Despite the criticisms made by me of the Persons Named, the fact that Mr Elmi’s observations align relatively closely with the matters that were the subject of discussions between each and Mr Yu, allows the conclusion that the matters being discussed were reasonably held. In the absence of evidence that the manner in which these subjects were discussed with Mr Yu met the statutory bullying definition, it follows that I am unable either to find the subject matter of the discussions was bullying behaviour.

I am unable therefore, on the basis of the evidence before me, to find that any of the behaviour complained of by Mr Yu met the statutory definition of “bullied at work” within s.789FD(1)(a) of the FW Act. As I have made no findings of behaviour that meets the definition within s.789FD(1)(a), it is unnecessary for me to either consider the matter of a behaviour’s risk to health or safety (s.789FD(1)(b)) or whether any behaviour was reasonable management action carried out in a reasonable manner (s.789FD(2)).

CONCLUDING OBSERVATIONS

The situation in which all concerned now find themselves is likely unsatisfactory from every perspective. Although bullying has not been found in this decision, there are pressures on Mr Yu’s work performance, with Mr Elmi’s reports highlighting aspects of work process that need to be addressed. I accept what Mr D’Angelo says about Mr Yu’s job not being under threat.

An accommodation between all concerned needs to be discussed and achieved. That will require time and skill, as well as good faith from all concerned.

Mr Chung’s Internal Investigation was absolutely accurate, with its recommendation that all parties should hold a formal discussion with an interpreter present to allow both parties to clearly communicate grievances and expectations for the purpose of establishing a sustainable working relationship.

Such a meeting needs to take place in the near future and involve each of the Persons Named and Mr Yu. The meeting needs to be facilitated by a skilled professional not working at the Tullamarine depot.

The meeting needs to openly discuss the concerns Mr Yu holds for his workload from the two assigned pickups and the impact those pickups have on the balance of his day. It needs to hear his proposal about how that impact could be improved and discuss whether and how those ideas could be implemented either in whole or in part.

The meeting needs to consider what Mr Yu has to say about his starting time. Mr Yu did not like the fact his hours were unilaterally changed and given the depth of his feeling, should have the opportunity to discuss with his managers and supervisors why he holds his views. Consultation is a proven method of avoiding disputes and resolving concerns. Even if the current Enterprise Agreement does not require consultation over proposed changes to regular rosters or hours of work, it will be a feature of the next as it is legislatively required for approval.

The meeting must also consider and openly discuss what Mr Elmi has had to say about Mr Yu’s work processes. Mr Yu should not come to that discussion with the perspective that all Mr Elmi’s ideas are bad. Some of them might be, but others may have to be put into place in order to improve his workflow.

CONCLUSION

For the reasons set out above, Mr Yu’s application is dismissed and an order doing so is issued at the same time as the publication of this decision.

COMMISSIONER

Appearances:

Ms Preston for the Applicant

Ms Spargo for the Respondents

Hearing details:

15, 16 and 17 April.
2024.

[1] Amie Mac v Bank of Queensland Limited & Others[2015] FWC 774, 247 IR 274, [99].

[2] Re SB[2014] FWC 2104, [42].

[3] Amie Mac, [89].

[4] Ibid, [95].

[5] Re SB[2014] FWC 2104, [48].

[6] Ibid, [49].

[7] Ibid, [50].

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

[9] See Von Stieglitz and Comcare [2010] AATA 263, [67].

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

[11] Keen v Workers Rehabilitation & Compensation Corporation (1998) 71 SASR 42.

[12] Re SB[2014] FWC 2104.

[13] Re SB[2014] FWC 2104, [44] – [ 45].

[14] Ms SB [2014] FWC 2104.

[15] Burbeck v Alice Springs Town Council[2017] FWC 4988, [139], [154].

[16] See Bibawi v Stepping Stone Clubhouse Inc t/a Stepping Stone & Others[2019] FWCFB 1314; Willis v Capital Radiology Pty Ltd T/A Capital Radiology; Ms Peita Carroll; Ms Marie Gibson; Mr Dominik Kucera (Willis)[2016] FWC 716, [15].

[17] Applicant’s Outline of Submissions, [6]; Digital Hearing Book, p.25.

[18] Witness Statement of Zuo Min Yu; Digital Hearing Book, p.59

[19] Respondents’ Outline of Submissions, [19]; DHB, p.112.

[20] Transcript, PN 721 – 726.

[21] Witness Statement of Robert D’Angelo; Digital Hearing Book, p.116.

[22] Transcript, PN 123.

[23] Transcript, PN 2408 – evidence of Abouhalia; note the identity of the pickup client is broadly consistent with D’Angelo’s evidence at PN 904 – 905, but inconsistent with the evidence of D’Angelo at PN 1039.

[24] Yu WS, [15]; DHB, p.69.

[25] Transcript, PN 1040

[26] Amended witness Statement of Zuo Min Yu, [6]; Digital Hearing Book, p.68.

[27] Ibid, [7]; DHB, p.68.

[28] Ibid, [9]; DHB, p.68.

[29] Ibid, [10]; DHB, p.68.

[30] Ibid, [11]; DHB, p.68.

[31] Ibid, [12]; DHB, p.69.

[32] Ibid, [14] – [15]; DHB, p.69.

[33] Ibid, [16]; DHB, p.69.

[34] Ibid, [19]; DHB, p.58.

[35] Ibid, [22]; DHB p.70.

[36] Ibid, [26]; DHB p.70.

[37] Witness Statement of Amareh Elmi, [18]; Digital Hearing Book, p.265.

[38] Amended Yu WS, [30]; DHB p.70.

[39] Ibid, [28]; DHB p.70.

[40] Transcript, PN 205.

[41] D’Angelo WS, [60]; DHB p.123.

[42] Ibid, Attachment RDA – 12; DHB, p.162.

[43] Ibid; DHB, pp. 170 – 171.

[44] Ibid; DHB, pp. 163 – 166.

[45] Ibid; DHB, pp. 169 – 170.

[46] Zuo Min Yu F73 Application; DHB, p.13.

[47] Exhibit A4, Letter from Star Track, 5 April 2023.

[48] Yu Documents, Performance Data for Lilydale Run November 2022 to October 2023; DHB, pp.51 – 54.

[49] Transcript, PN 977 – 981.

[50] Transcript, PN 962 – 966.

[51] D’Angelo WS, [90]; DHB, p.123.

[52] AE515166; Witness Statement of Jaskaran Bedi, Attachment JSB – 3; Digital Hearing Book, pp.191 – 256.

[53] Ibid, Clause 15.4; DHB, p.205.

[54] Enterprise Agreement, Clauses 3 and 6.2

[55] Transcript, PN 1325 – 1330.

[56] Transcript, PN 1206 – 1207.

[57] Transcript, PN 3222.

[58] Transcript, PN 403.

[59] D’Angelo WS, [24]; DHB, p. 117.

[60] Ibid, pp.117 – 118.

[61] Ibid, [37], p.118.

[62] Ibid, pp.118 – 119.

[63] Ibid, [30]; p.119.

[64] Ibid, [40]; p.119.

[65] Ibid, [47]; p.119.

[66] Ibid, p.119.

[67] Transcript, PN 274.

[68] Transcript, PN 272 – 283.

[69] Transcript, PN 276 – 282.

[70] Transcript, PN 281 – 285.

[71] D’Angelo WS, [50]; DHB, p.119.

[72] Transcript, PN 3179.

[73] Exhibit A4, Letter from Star Track, 5 April 2023.

[74] D’Angelo WS, Attachment RDA 11; DHB, pp.159 – 160.

[75] Bedi WS, [92] and Attachment JSB – 5; DHB, pp.261 – 262.

[76] Transcript, PN 1201 – 1207.

[77] Transcript, PN 1653 – 1654.

[78] Bedi WS, [4]; DHB, p.179.

[79] Transcript, PN 336.

[80] Transcript, PN 339.

[81] Amended Yu WS, [24]; DHB, p.70.

[82] Transcript, PN 357 – 358.

[83] Transcript, PN 339; Bedi WS, [25]; DHB, p.182.

[84] Transcript, PN 1692 – 1700.

[85] Amended Yu WS, [23]; DHB, p.70

[86] Transcript, PN 347 – 363.

[87] Amended Yu WS, [23]; DHB, p.70

[88] Abouhaila WS, [18]; DHB, p.174.

[89] Amended Yu WS, [17]; DHB, p.69.

[90] Transcript, PN 1660 – 1663.

[91] Bedi WS, [23], [25] – [27]; DHB, pp.181 – 182.

[92] Transcript, PN 1672.

[93] Transcript, PN 1672 – 1674.

[94] Transcript, PN 1675 – 1679.

[95] Amended Yu WS; DHB, p.70.

[96] Transcript, PN 1725 – 1740.

[97] Amended Yu WS, [26]; DHB, p.70.

[98] Bedi WS, [60]; DHB, p.184.

[99] Ibid, pp.184 – 185.

[100] Transcript, PN 397 – 343.

[101] Amended Yu WS, [27]; DHB, p71.

[102] Abouhaila WS; DHB, p.175.

[103] Abouhalia WS; DHB, p.176.

[104] Transcript, PN 2204 - 2209.

[105] Transcript, PN 2210 – 2213.

[106] Bedi WS, Attachment JSB – 4; DHB, pp.257 – 260.

[107] Elmi WS, Attachment AE – 1; DHB, pp.279 – 280.

[108] Yu Documents, Performance Data for Lilydale Run November 2022 to October 2023; DHB, p.54.

[109] Elmi WS, Attachment AE – 1; DHB, p.280.

[110] Elmi WS, Attachment AE – 1; DHB, p.281.

[111] Elmi WS, Attachment AE – 2; DHB, pp.302 – 303.

[112] Amended Yu WS; DHB, p.60.

[113] Transcript, PN 438 – 439.

[114] Mac v Bank of Queensland Limited and Others[2015] FWC 774 at [90].

[115] [2024] FWC 549.

[116] [2023] FWC 3299.

[117] Bedi WS, [34]; DHB, p.182.

[118] D’Angelo WS, [36]; DHB, p.119.

[119] Clause 15.4; DHB, p.205.

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