Mrs Loredana Pastor
[2019] FWC 257
•26 MARCH 2019
| [2019] FWC 257 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Mrs Loredana Pastor
(AB2018/664)
DEPUTY PRESIDENT BINET | PERTH, 26 MARCH 2019 |
Application for an FWC order to stop bullying - bullying claim not sustained - application dismissed.
Introduction
[1] On 24 October 2018, Ms Loredana Pastor (Ms Pastor) filed an application (Application) with the Fair Work Commission (FWC) for an order to stop bullying in accordance with section 789FC of the Fair Work Act 2009 (Cth) (FW Act).
[2] Ms Pastor is employed by Aegis Aged Care Group (Aegis) at the Aegis Carrington Aged Care facility (Carrington Facility). Ms Pastor alleges that Ms Salome Zulu (Ms Zulu), a Clinical Nurse Manager (CNM) at the Carrington Facility, and Ms Aicha Swaray (Ms Swaray), an Assistant in Nursing (AIN) employed at the Carrington Facility, have engaged in bullying behaviour towards her.
[3] On 2 November 2018, Aegis lodged a Form F73 - Response from an Employer/Principal to an Application for an Order to Stop Bullying (Form F73). On 15 November 2018, Ms Zulu and Ms Swaray (Named Persons) each lodged a Form F74 - Response from a Person Against Whom Bullying has been Alleged to an Application for an Order to Stop (Form F74). Ms Zulu and Ms Swaray deny they have engaged in any bullying behaviour. Aegis assert that their investigations reveal that Ms Pastor has not been subjected to workplace bullying by Ms Zulu or Ms Swaray and that Ms Pastor’s application is false and vexatious.
[4] On 27 November 2018, the parties attended a conciliation conference before me, but the issues in dispute were unable to be resolved (Conciliation Conference).
[5] The Application was listed for hearing and determination by way of a Determinative Conference on 10 January 2019.
Permission to be Represented
[6] Section 596 of the FW Act sets out the circumstances in which the FWC may grant permission for a party to be represented, providing as follows:
“596 Representation by lawyers and paid agents
(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.
(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.”
[7] The Notice of Listing for the Conciliation Conference directed the parties to file written submissions in advance of the Conciliation Conference if they wished to apply for permission to be represented at the Conciliation Conference. The Notice of Listing also gave the parties the opportunity to object to the granting of permission. These directions provide parties with the comfort of attending at the Conciliation Conference having had the question of permission to be represented determined in advance of the Conciliation Conference.
[8] Ms Pastor was accompanied to the Conciliation Conference by her representative.
[9] Neither Ms Pastor nor her representative applied for permission for Ms Pastor to be represented at the Conciliation Conference nor filed any submissions in support of the granting of such permission in advance of the Conciliation Conference as directed. Aegis and the Named Persons therefore attended the Conciliation Conference on the presumption that none of the parties would be represented.
[10] Ms Pastor’s representative had been Ms Pastor’s support person in a disciplinary process that Aegis had commenced with Ms Pastor prior to the Application being filed. Aegis alleged that he had been aggressive and disruptive during that process and opposed him being granted leave at the Conciliation Conference and any future proceedings.
[11] Ms Pastor’s representative insisted that he was entitled to represent Ms Pastor as of right. He responded aggressively to my efforts to explain that there was no automatic right to be granted permission to be represented and displayed a lack of familiarity with FWC processes and the relevant law. The Named Persons and the Aegis representatives appeared to be intimidated by the conduct of Ms Pastor’s representative and the progress of the Conciliation Conference was delayed significantly endeavouring to resolve the matter.
[12] The purpose of the Conciliation Conference was to discuss with the parties the matters of concern to Ms Pastor and whether the parties could voluntarily agree to interim measures to address Ms Pastor’s concerns. More ideally it also provided an opportunity for the parties to agree to more permanent measures to resolve Ms Pastor’s concerns and protect and preserve the ongoing relationship between all the parties. Such an outcome would avoid the need for adversarial litigation with the associated risk of harm to the ongoing relationship between the parties.
[13] I was not satisfied that granting Ms Pastor permission to be represented at the Conciliation Conference would enable the matter to be dealt with more efficiently, taking into account the complexity of the matters to be discussed at the Conciliation Conference. It did not appear to me that Ms Pastor was unable to effectively represent herself nor that it would be unfair to require her to do so. In fact I took the view that it would be unfair to Aegis and (in particular) Ms Zulu and Ms Swaray to grant permission to Ms Pastor to be represented without notice to them and without the opportunity for them engage legal representation. I therefore refused Ms Pastor permission to be represented at the Conciliation Conference but initially permitted her representative to remain in the Conciliation Conference as her support person.
[14] During the course of the Conciliation Conference Ms Pastor’s representative raised his voice, was aggressive, disruptive and made incorrect assertions about the relevant legal principles. After several warnings he was asked to wait outside during the joint sessions. I informed both he and Ms Pastor that at any point during the Conciliation Conference should she wish to adjourn and speak to him she was welcome to do so.
[15] He later attempted to re-enter the room in which the Conciliation Conference was being held uninvited. He refused to leave and continued to argue with me in a raised voice until I informed him that I would request to have him removed if he didn’t withdraw from the room. He eventually withdrew from the room.
[16] I subsequently split the parties into private session. I permitted him to join Ms Pastor during the split session and to speak on her behalf during the split session.
[17] On 30 November 2018 directions were issued to the parties to file materials in advance of the Determinative Conference (Directions). The Directions, inter alia, invited the parties to make submissions as to whether the FWC should grant permission pursuant to section 596 of the FW Act for the parties to be represented by a lawyer or paid agent at the Determinative Conference.
[18] Ms Pastor sought permission to be represented at the Determinative Conference by the representative who had previously accompanied Ms Pastor to the Conciliation Conference.
[19] In support of her application for permission to be represented by him at the Determinative Conference, Ms Pastor submitted that:
a. She was unable to write a submission on her own.
b. She was unable to argue her case effectively.
c. It would be prejudicial to her case not to allow representation taking into consideration fairness between the parties.
d. It would be in the best interest of the fairness and justice.
e. It would provide her with access to support.
f. It would ensure that the matter is dealt with efficiently.
[20] In Warrell v Fair Work Australia1 the Federal Court held that,
“[24] A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission…”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.
[21] I note that involvement of representatives in the matter prior to the Determinative Conference had not enabled the matter to be dealt with more efficiently. In fact the Conciliation Conference was disrupted by Ms Pastor’s representative’s disruptive and aggressive manner. He also displayed a lack of familiarity with FWC processes and the relevant legal principles which did not suggest his participation would assist the efficient conduct of the Determinative Conference. Furthermore the Named Persons appeared to be highly intimidated by his conduct and reluctant to speak in his presence.
[22] Regardless of the identity or conduct of Ms Pastor’s chosen representative I was not satisfied that granting permission to Ms Pastor to be represented would enable the matter to be dealt with more efficiently taking into account the complexity of the matter, that Ms Pastor was unable to represent herself effectively or that it would unfair not to grant her permission to be represented taking into account fairness between herself and the other parties.
[23] Rule 12 of the Fair Work Commission Rules 2013 (Cth) provides that permission to be represented is not required for a representative to prepare and file written submissions and evidentiary material in accordance with directions in advance of a hearing date. Ms Pastor had the assistance of her representative to prepare her outline of submissions, her closing submissions and collate her evidentiary materials. She was not therefore required to write her own submissions nor was she compelled to make any oral submissions during the Determinative Conference.
[24] The determination of the Application turned almost entirely on the recollection of facts, mostly within Ms Pastor’s own knowledge. My observations of Ms Pastor during the Conciliation Conference is that while softly spoken she was capable of clearly articulating her recollections, views and opinions. I was not satisfied that granting her permission to be represented would enable the matter to be dealt with more efficiently taking into account the complexity of the matter. Nor was I satisfied that the Application involved such complexity that Ms Pastor could not properly put her case.
[25] My observations of Ms Zulu and Ms Swaray is that they were entirely overwhelmed and intimidated by the proceedings. Neither were represented at any stage in the proceedings. Neither led any additional evidence on their own account and relied entirely on the submissions and evidence of their employer. Ms Swaray on her own account has poor English literacy skills and her spoken English did not appear to be fluent. As to the question of fairness between the parties I am satisfied that Ms Pastor was far more capable of representing herself than either Named Person, and particularly Ms Swaray. As a matter of fairness it would not be appropriate to grant permission to Ms Pastor to be represented in circumstances where the Named Persons were not represented.
[26] Aegis did not seek permission to be represented. Its case was presented by Mr Waldron, their Manager – People and Culture. No evidence was led by Ms Pastor as to Mr Waldron’s relevant qualifications and experience which might create such unfairness that she should be granted permission to be represented. Notwithstanding Mr Waldron’s role I was not satisfied that he possessed such knowledge of the relevant legal principles or FWC processes such that it would be unfair to Ms Pastor to require her to present her own case.
[27] Having had the opportunity to observe the parties during conciliation and having considered the submissions of the parties, I was not satisfied that I should exercise my discretion to grant leave to be represented to Ms Pastor. I did however provide her with appropriate assistance and latitude in the presentation of her case and endeavoured to ensure that, as far as possible, the disputed matters were raised with relevant witnesses. I also took steps during the examination of witnesses to inform myself about relevant matters.2
Determinative Conference
[28] At the Determinative Conference Ms Pastor gave evidence on her own behalf. In addition to Ms Swaray and Ms Zulu, Mr Waldron called the following witnesses:
a. Ms Ashley Janine Van Rynevald (Ms Van Rynevald)
b. Mr Jan Artuz (Mr Artuz)
c. Ms Nibby Mann (Ms Mann)
d. Ms Rosemarie Swan (Ms Swan)
e. Ms Elizabeth Jane Green (Ms Green)
[29] Ms Zulu or Ms Swaray adopted the submissions of Aegis and did not call any additional witnesses.
[30] Ms Van Rynevald, Mr Artuz, Ms Mann, Ms Swan and Ms Green all appeared to give their evidence honestly, openly and without favour.
[31] Ms Zulu was clear and firm about her recollections of events.
[32] Ms Swaray and Ms Pastor were both softly spoken. Ms Swaray was candid about her interactions with Ms Pastor and provided detailed evidence of her recollections of those interactions. Ms Pastor’s recollection of events was on whole more vague than that of other witnesses. Her recollections appeared to be selective and, on occasion, dramaticised.
[33] Where their evidence differed I have preferred the evidence of other witnesses over that of Ms Pastor.
[34] Although he was not granted permission to represent Ms Pastor, her representative attended the Determinative Conference. I note that during the course of the proceedings I observed him attempting to ‘coach’ Ms Pastor by mouthing instructions to her while she was giving evidence under oath. I counselled him about the impropriety of his conduct. 3 Later in the proceedings he endeavoured to pass Ms Pastor a handwritten list of questions.4
[35] Ms Pastor filed written closing submissions on 1 February 2019. Aegis filed written closing submissions on 15 February 2019. Neither Named Person filed any written submissions.
Admission of evidence of discussions held during the Conciliation Conference and reasons for issuing the Confidentiality Order
[36] In her witness statement, and at the Determinative Conference, Ms Pastor sought to give evidence of discussions that occurred in the course of the Conciliation Conference. At the Determinative Conference Aegis objected to the admission of this evidence and made a request that confidentiality orders be issued with respect to this evidence. The request was formalised by Aegis in a Form F1 application on 14 January 2019.
[37] The grounds on which Aegis relied for the confidentiality orders were that the matters discussed at the Conciliation Conference were confidential and made on a without prejudice basis and therefore could not be relied on in any subsequent proceedings.
[38] Ms Pastor was invited to provide written submissions in response, and did so on 16 January 2019. Ms Pastor opposed the granting of the confidentiality orders and sought that the transcript be made available to the parties without redaction and that her witness statement be admitted into evidence without redaction.
[39] In support of her submission Ms Pastor cited section 131 of the Evidence Act 1995 (Cwth). She acknowledged that the FWC is not bound by the rules of evidence. However she pointed out that the FWC tends to follow the rules of evidence as a general guide to good procedure. She also made reference to a number of cases as authority for the principle that FWC proceedings should be conducted in a manner which is procedurally fair.
[40] Section 594 of the FW Act provides the FWC with the power to make orders with respect to the confidentiality of evidence given in hearings as follows:
“594 Confidential evidence
(1) The FWC may make an order prohibiting or restricting the publication of the following in relation to a matter before the FWC (whether or not the FWC holds a hearing in relation to the matter) if the FWC is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:
(a) evidence given to the FWC in relation to the matter;
(b) the names and addresses of persons making submissions to the FWC in relation to the matter;
(c) matters contained in documents lodged with the FWC or received in evidence by the FWC in relation to the matter;
(d) the whole or any part of its decisions or reasons in relation to the matter.”
[41] At the outset of the Conciliation Conference the parties were advised that all discussions during the Conciliation Conference were without prejudice and that the discussions were to be kept confidential by those present.
[42] These principles enable the parties undertaking conciliation to explore the possibilities for an agreed outcome without compromising their respective positions if a matter ultimately proceeds to arbitration. Conciliation provides parties with a low cost, speedy and flexible mechanism to resolve their disputes. In a jurisdiction characterised by an extremely high number of self represented parties this provides far more parties (particular those with limited financial resources or educational levels) access to justice than would be achievable if parties had only the alternative of a formal hearing. Most relevantly in this jurisdiction it provides a mechanism to resolve disputes without the potentially harmful impact of adversarial litigation, thus giving ongoing employment relationships the greatest opportunity to survive and flourish.
[43] Putting aside that Ms Pastor’s recollections of the Conciliation Conference differ significantly from my own, to admit her evidence with respect to discussions at the Conciliation Conference would undermine the effectiveness of the conciliation process.
[44] Aegis and the Named Persons entered into discussions during the Conciliation Conference on the presumption that those discussions were without prejudice and would remain confidential. As pointed out by Ms Pastor the FWC has an obligation to afford the parties procedural fairness. To allow Ms Pastor to subsequently treat those discussions as other than confidential and without prejudice would be a breach of procedural fairness.
[45] Departing from the principle of open justice by issuing confidentiality orders is permitted where not to do so would defeat the proper administration of justice. 5 An order made pursuant to section 594(1) of the FW Act must be clear in its terms and do no more than is necessary to secure the due administration of justice.6
[46] In accordance with these principles I therefore issued an order on 17 January 2019 in Print PR703900 in the following terms (Confidentiality Order):
“Pursuant to ss. 593 and 594 of the Fair Work Act 2009 (Cth), the Fair Work Commission (FWC) orders that:
A. All matters with respect to the resolution of this matter or the status of Ms Loredana Pastor’s workers compensation claim discussed at the conciliation conference in relation to this matter held on 27 November 2018, shall be confidential (Confidential Information).
B. The parties, their representatives and witnesses to the proceedings in relation to this matter shall keep the Confidential Information confidential and shall not publish or disclose the Confidential Information unless required to do so by law.
C. No person, other than the parties to the proceedings, shall be permitted access to the file of this matter, the audio recording of the Hearing held on 10 January 2019, (Hearing) or the transcript of the Hearing except on direction issued by a Member of the FWC.
D. Exhibit A1, the audio recording of the Hearing and the transcript of the Hearing shall be confidential and shall not be published or disclosed other than provided for at [C] of this Order.
E. If the FWC issues a decision which refers to the Confidential Information a confidential decision will be published for the use of the parties. Any decision, published for the use of the general public will be redacted insofar as it includes Confidential Information.
F. If the FWC issues a confidential decision which refers to the Confidential Information the parties must not publish or disclose that decision.”
[47] In her submissions opposing the granting of the Confidentiality Order Ms Pastor sought access to the transcript in an unredacted form. She did not express opposition to orders prohibiting the public to access the records of the Determinative Conference (in the form of transcript, oral recording or FWC file). The Confidentiality Order permits Ms Pastor to have access to the transcript without limitation but addresses the public interest of preserving the confidentiality of conciliation conferences.
[48] For the same reasons that I issued the Confidentiality Order I determined that I would not take into account Ms Pastor’s evidence with respect to discussions at the Conciliation Conference when determining this Application.
[49] In any event, to the extent that the evidence as to what occurred at the Conciliation Conference was sought to be relied upon by Ms Pastor as evidence of bullying by Mr Waldron, I note that when I queried Ms Pastor during the Determinative Conference whether she wished to formally press these allegations she confirmed that she did not. 7
Background
[50] Ms Pastor commenced employment with Aegis at the Carrington Facility in October 2014. 8
[51] Aegis is a family owned company founded in 1983 which owns and operates more than 25 aged care residences in the Perth metropolitan area. 9 Human resource support is provided to the various facilities by a human resource department, called People and Culture, located at the Aegis Central Office. Mr Artuz has been employed as a human resource consultant in the Aegis Central Office since 6 April 2011.10
[52] The Carrington Facility is located in Hamilton Hill in Western Australia and provides low and high care services to up to 119 residents. 11
[53] The delivery of care at the Carrington Facility is overseen by a Facility Manager. The Facility Manager is supported by two CNMs, Ms Zulu and Ms Swan. Ms Zulu has been employed as a CNM at the Carrington Facility since 6 May 2013. 12 Ms Swan has been a CNM since 28 July 2007.13 Ms Zulu was Acting Facility Manager from 10 September 2018 until 28 September 2018 while the then incumbent Facility Manager Ms Simone Baxter (Ms Baxter) was on annual leave. Ms Baxter subsequently resigned and Ms Van Rynevald was appointed Acting Facility Manager from 1 October 2018 until 2 November 2018 when a new Facility Manager, Ms Green, was appointed.14 Ms Van Rynevald has been employed by Aegis since 29 January 2013 and provides relief cover for Facility Managers and CNMs across all of the Aegis Facilities.15 Ms Green has been employed by Aegis for more than 7 years.
[54] The CNMs support the Facility Manager and are responsible for providing clinical leadership. Their responsibilities include allocating staff to work areas or ‘wings’ of the Carrington Facility. The Carrington Facility has four wings, those wings are called Forrest, Lodge North, Healy and Lodge South (Wings). 16 The care of residents is delivered by Registered Nurses, Enrolled Nurses and AINs. Ms Mann has been employed by Aegis as a Registered Nurse at the Carrington Facility since 5 June 2018. Ms Mann is responsible for planning care for residents and supervising Enrolled Nurses and AINs including Ms Pastor.17
[55] AINs provide personal care to residents according to care plans under the supervision of clinical staff. Ms Pastor and Ms Swaray are employed as AINs. Ms Swaray has been employed as an AIN at the Carrington Facility since 8 April 2007.
[56] On 10 May 2018 Ms Pastor was issued with a final written warning (Final Warning) in relation to her care of a patient (Patient Incident). 18 The incident in question was substantiated by way of video footage provided to Aegis by the resident’s family (Video of Patient Incident).
[57] On 5 September 2018 an altercation occurred between Ms Pastor and Ms Zulu.
[58] On 17 September 2018 Aegis wrote a letter to Ms Pastor informing her that they were commencing an investigation into the events of 5 September 2018 and the quality of her care of a patient (Misconduct Allegations) 19:
“It is alleged that:
1. On Wednesday 5 September 2018 you behaved in a totally inappropriate manner in an exchange with another work colleague, named Aicha. Your actions were in the direct view of the residents.
2. You also made racial remarks (Did not like working with African).
3. A resident [REDACTED] has refused to receive care from you because you are rough, uncaring and have caused her a skin tear in the past.
4. When the RN in charge attempted to discuss her concerns with you as to the above, your response was very aggressive and unnecessarily defensive. You were argumentative, rude and extremely dismissive and did not listen to what she outlined to you.”
[59] The letter invited Ms Pastor to respond to the Misconduct Allegations in writing by 25 September 2018 and directed that she attend an investigation meeting on 28 September 2018. 20
[60] At 10.02pm on Monday 1 October 2018 Ms Pastor emailed the then Facility Manager, Ms Van Rynevald, a written response to the Misconduct Allegations (Letter of Response). 21 In the Letter of Response, Ms Pastor denied that she swore at Ms Swaray or otherwise acted inappropriately. She also denied that she made any racial remarks regarding working with colleagues of African descent. Ms Pastor admitted that the patient in question had suffered a skin tear but says that this occurred accidentally. Ms Pastor did not accept that she was argumentative in her response to Ms Mann. Rather Ms Pastor says that Ms Mann had accused her of making a racial remark and she was merely insistent that she did not make the remark she was accused of making.22
[61] In the Letter of Response Ms Pastor also alleged that on 4 June 2018 Ms Swaray had threatened to hit her in the face. 23
[62] On 8 October 2018 Ms Pastor sent an email to Ms Van Rynevald alleging that Ms Swaray elbowed her waist as she passed Ms Pastor in the dining area at 8:40am on 1 October 2018. 24
[63] On 12 October 2018 Aegis sent a letter to Ms Swaray informing her that Ms Pastor had alleged that she had elbowed Ms Pastor in the side as she passed by Ms Pastor on 1 October 2018. The letter invited Ms Swaray to respond to the allegations in writing and directed that she attend an investigation meeting. 25
[64] The investigation meeting into the allegation made against Ms Swaray by Ms Pastor was conducted by Ms Van Rynevald in the presence of Ms Zulu on 19 October 2018. Ms Swaray denied the allegation and insisted that she was working in another wing on the day in question and hadn’t seen Ms Pastor. Ms Van Rynevald accepted Ms Swaray’s denial as truthful.
[65] On 22 October 2018 Aegis wrote to Ms Swaray informing her that the allegations by Ms Pastor against her had not been substantiated. 26
[66] An investigation meeting into the allegations made against Ms Pastor was held on 26 October 2018 (Investigation Meeting). The Investigation Meeting was attended by Ms Van Rynevald, Ms Woldan and Ms Pastor. The gentleman who attended the Conciliation Conference with Ms Pastor also attended the Investigation Meeting as a support person for Ms Pastor. At the conclusion of the meeting Ms Pastor was informed that she would be issued with a formal written warning. 27
[67] On 2 November 2018 Aegis issued the formal written warning and in the same correspondence provided Ms Pastor with the findings of the investigation in writing. In summary those findings were that: 28
a. In relation to the allegation that she directed abusive and inappropriate language at Ms Swaray Aegis found that the allegation had been substantiated by corroborative evidence from other co-workers and residents who had reported that Ms Pastor was often unprofessional, argumentative and rude.
b. In relation to the allegation that she had said she did not like working with Africans Aegis initially found that the allegation was unsubstantiated however in the course of investigating Ms Pastor’s allegations of bullying they say Ms Nibbs revealed that Ms Pastor had said that she did not like black people on a separate occasion.
c. In relation to the allegation that a resident had refused to receive care from Ms Pastor Aegis found the allegation was substantiated after both CNMs confirmed that the patient did not wish to receive care from Ms Pastor.
d. In relation to the allegation that she was argumentative in her response to Ms Nibbs about her handling of the patient Aegis found that this was substantiated given Ms Pastor did not address the incident in her response, that Ms Nibbs provided a statement that Ms Pastor was argumentative and that Ms Zulu also reported that Ms Pastor was argumentative with her when she raised with Ms Pastor her handling of the patient later the same day.
[68] In the same letter Aegis note that, as a result of an administrative error, those present at the Investigation Meeting were unaware of Ms Pastor’s previous Final Warning. The letter states that had they been aware of that warning that Ms Pastor would have been dismissed rather than given a further written warning. 29
[69] On 24 October 2018 Ms Pastor filed the Application with the FWC. In her Form F72 – Application for an Order to Stop Bullying (Form F72) Ms Pastor identifies the behaviour which she alleges she experienced and which she asserts constitutes bullying as follows:
“• Aicha Swaray is always bullying me and always trying to frustrate me in my work area. I have reported these incidents to the Clinical Nurse Manager, but nothing was done. For instance, on 4 June 2018, Aicha shouted at me that she would hit me on my face and that I would be full of blood. I simply avoided her, and went to report the matter to Salome Zulu, the Clinical Nurse Manager, but there was no investigation undertaken.
• On another occasion 5 September 2018, when I asked Aicha to come helped me on the floor Aicha shouted at me to leave her alone there was another carer who witnessed this incident, his name was Femi Oyewopo. Immediately Femi Oyewopo left, Aicha became more abusive, and pointing her fingers close my face in the corridor at the start of shift. I report this matter to Salome Zulu, the Clinical Nurse Manager, but there was no investigation undertaken again.
• Aicha Swaray always act physically aggressive towards me especially when I am alone with her and on 1st October 2018, she elbowed me in my ribs as she pretended to pass me by, despite there been plenty of room for her to walk by, I was in pain and reported the matter to the facility manager.
• Salome Zulu the Clinical Nurse Manager is always placing me in section where it is more demanding and difficult to work in. I do work for an extended period of time before, I get a single shift in a lighter duty area. This is workplace hazard and the rotation that is supposed to be in place is not implemented. Salome Zulu is in charge of allocating staff to the various work areas and does so on purpose.”
[70] Ms Pastor describes the remedy she seeks in her Form F72 as follows:
“The remedy I seek is that Aicha Swaray is rostered onto a different section or shifts that we both report to different persons in the workplace.
Secondly that the rotation of work in the heavy section be equitably rotated in fairness rather than a person being left to work in a heavy section for too long while others are given work area that are less stressful or difficult.”
Is there a valid application before the FWC?
[71] A worker who reasonably believes that he or she has been bullied while at work in a constitutionally covered business may apply to the FWC pursuant to section 789FC of the FW Act for an order to stop bullying. 30
[72] Section 789FC provides that:
“s.789FC Application for an FWC order to stop bullying
(1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.
(2) For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011 , but does not include a member of the Defence Force.
Note: Broadly, for the purposes of the Work Health and Safety Act 2011 , a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.
(3) The application must be accompanied by any fee prescribed by the regulations.
(4) The regulations may prescribe:
(a) a fee for making an application to the FWC under this section; and
(b) a method for indexing the fee; and
(c) the circumstances in which all or part of the fee may be waived or refunded.”
[73] A worker for the purposes of section 789FC(1) of the FW Act is defined in section 789FC(2) of the FW Act as an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer but expressly excludes members of the Defence Force. 31
[74] A constitutionally covered business is a person conducting a business or undertaking conducted principally in a Territory or Commonwealth place or where the person conducting the business or undertaking is a constitutional corporation, the Commonwealth, a Commonwealth Authority or a body corporate incorporated in a Territory. 32
[75] Section 789FC(3) provides that the an application for an order to stop bullying must be accompanied by the prescribed fee.
[76] There is no contest that Ms Pastor is a worker and that she believes that she has been bullied. The conduct which Ms Pastor asserts constitutes bullying is alleged to have occurred at the workplace.33
[77] There is no contest that Aegis is conducting a constitutionally-covered business.
[78] The Application was accompanied by a fee waiver request which was granted on 24 October 2018.
[79] I am therefore satisfied that there is a valid application before the FWC.
What constitutes bullying behaviour under the FW Act?
[80] Section 789FD of the FW Act sets out when a worker is bullied at work for the purposes of the FW Act. Section 789FD provides as follows:
“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.”
[81] According to section 789FD(1) of the FW Act workplace bullying occurs when an individual or group of individuals repeatedly behaves unreasonably towards a worker and the behaviour creates a risk to health and safety.
[82] Without limiting the scope of section 789FD of the FW Act, and depending on the nature and context of the conduct, bullying behaviours can include, but is not limited to:
a. aggressive and intimidating conduct 34
b. belittling or humiliating comments 35
c. victimisation 36
d. spreading malicious rumours 37
e. initiation rituals 38
f. exclusion from work-related events, 39 and
g. unreasonable work expectations. 40
[83] The phrase ‘repeatedly behaves unreasonably’ in section 789FD(1) of the FW Act implies the existence of persistent unreasonable behaviour. There is no specific number of incidents required for behaviour to amount to repeatedly behaving unreasonably, provided there is more than one occurrence. Nor does the same specific behaviour have to be repeated. What is required is repeated unreasonable behaviour by an individual or individuals towards the applicant worker or a group of workers to which the applicant belongs. 41
[84] Unreasonable behaviour’ is behaviour that a reasonable person, having regard to the circumstances, may consider to be unreasonable. The assessment of whether behaviour is unreasonable is therefore an objective test having regard to all the relevant circumstances applying at the time. 42
[85] The unreasonable behaviour must also create a risk to health and safety. The risk to health and safety must be real and not simply conceptual. Therefore there must be a causal link between the behaviour and the risk to health and safety. The behaviour does not have to be the only cause of the risk, provided that it was a substantial cause of the risk viewed in a common sense and practical way.43
[86] Reasonable management action conducted in a reasonable manner does not constitute workplace bullying. 44 To be captured by this exception:
a. the behaviour (being relied upon as bullying conduct) must be management action;
b. it must be reasonable for the management action to have been taken; and
c. the management action must have been carried out in a manner that is reasonable.
[87] In Application by G.C. [2014] FWC 6988 what is reasonable management action was described as follows:
[54] 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.
[55] The specific ‘attributes and circumstances’ of the situation including the emotional state and psychological health of the worker involved may also be relevant.
[56] The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’. In general terms this is likely to mean that:
● management actions do not need to be perfect or ideal to be considered reasonable;
● a course of action may still be ‘reasonable action’ even if particular steps are not;
● to be considered reasonable, the action must also be lawful and not be ‘irrational, absurd or ridiculous’;
● any ‘unreasonableness’ must arise from the actual management action in question, rather than the applicant’s perception of it; and
● consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances. [FOOTNOTES OMITTED]“
Has Ms Pastor been bullied at work within the meaning of the FW Act?
[88] This requires consideration of each of the allegations made by Ms Pastor and the response to those allegations, based upon the evidence, viewed objectively, that is before the FWC.
[89] In her materials filed in accordance with the Directions Ms Pastor alleges the following events occurred at the workplace and submits that these events constituted workplace bullying for the purposes of section 789FD of the FW Act. I note that her materials include allegations of bullying not raised by Ms Pastor in her Form F72 and in some instances; allegations which Aegis and the Named Persons say were first bought to their attention when Ms Pastor filed her materials.
Allegation – On 4 June 2018 Ms Swaray bullied Ms Pastor by shouting at her and telling her she would hit her in the face.
[90] Ms Pastor alleges that on 4 June 2018 Ms Swaray threatened to hit her in the face. Ms Pastor says that she reported the incident to Ms Zulu but did not receive any response. 45
[91] Ms Swaray denied in her statutory declaration and under oath at the Determinative Conference that such an incident ever occurred. In fact her evidence is that she and Ms Pastor worked amicably together until the events of 5 September 2018. 46
[92] Ms Zulu denied in her statutory declaration and under oath at the Determinative Conference that Ms Pastor reported any such incident to her. She says that she first became aware of the allegation on 1 October 2018 when Ms Pastor provided her written response to the Misconduct Allegations. Ms Zulu also says that Ms Pastor did not bring any other allegation of bullying to her attention prior to this date. 47
[93] When questioned under cross examination about when, where and how she reported the incident to Ms Zulu and what Ms Zulu’s response was Ms Pastor was vague with her evidence. 48
[94] There is no contemporaneous evidence to corroborate that either Ms Swaray made the alleged threat or that Ms Pastor reported it to Ms Zulu. The first record of Ms Pastor reporting the incident is on 1 October 2018 in Ms Pastor’s Letter of Response to the Misconduct Allegations made against her.
[95] Given the lack of detail in Ms Pastor’s recollections, the candid nature of Ms Swaray’s evidence in relation to the other allegations made against her, the lack of an contemporaneous record of the incident and the temporal nature between Ms Pastor reporting the alleged incident and the Misconduct Allegations being raised with Ms Pastor I am not satisfied that the incident occurred or that a report was made by Ms Pastor to Ms Zulu that such an incident occurred.
Allegation – On 5 September 2018 Ms Swaray bullied Ms Pastor by shouting at Ms Pastor to leave her alone when Ms Pastor asked Ms Swaray for assistance
[96] Ms Pastor says that at the start of the shift on 5 September 2018 she asked Ms Swaray for assistance however Ms Swaray shouted at Ms Pastor to leave her alone. Ms Pastor says that this interaction was witnessed by Mr Femi Oyewopo (Mr Oyewopo). Ms Pastor says that after Mr Oyewopo left the scene Ms Swaray came close to her and pointed her finger in Ms Pastor’s face. 49
[97] Mr Oyewopo was not called as a witness by Ms Pastor at the Determinative Conference. Ms Green gave evidence that when interviewed about the incident Mr Oyewopo said on the day in question he had witnessed Ms Swaray walking away from Ms Pastor and saying ‘leave me alone’ and Ms Pastor asking her where she was going. Ms Green says that Mr Oyewopo recalls Ms Pastor turning to him and saying “can you see she is giving me attitude... can you see that” and him saying to Ms Pastor “just manage things”. 50
[98] Ms Swaray’s evidence is that shortly after completing handover on 5 September 2018 Ms Pastor told her to assist her transfer a ‘double assist’ patient. Ms Swaray says that she told Ms Pastor that they did not do ‘double assisted’ transfers before breakfast because single transfer residents who were more mobile wanted to get to breakfast. Ms Swaray says that Ms Pastor became angry with her. 51
[99] Ms Swaray says that she had mistakenly left her handbag at the Nurses Station and needed to collect it. She says that as she proceeded to the Nurses’ Station to do so Ms Pastor shouted at her aggressively to come with her. 52
[100] Ms Swaray continued to the Nurses Station to collect her bag. 53
[101] Ms Nibbs says that Ms Swaray approached her and alleged that Ms Pastor was bullying her and saying mean things. She says she told Ms Swaray that she and Ms Pastor would need to resolve their disagreement and find a way to work together. 54
[102] Ms Nibbs says that subsequently at around 7:45am she attended the room of a resident with Ms Pastor to attend to the needs of the resident. Ms Nibbs alleges that in front of the resident Ms Pastor said words to the effect of: 55
“I hate black people, I can’t stand them.”
[103] Both the Named Persons appear to be of African descent.
[104] Ms Nibbs says that she told Ms Pastor she should not say things of this nature and that she needed to find a way to work with Ms Swaray. 56
[105] Ms Nibbs says that as she exited the room she observed Ms Swaray outside. Ms Nibbs says that Ms Swaray appeared to have overheard the conversation between herself and Ms Pastor and looked very unhappy. 57
[106] Ms Swaray describes the events that followed in her witness statement: 58
“When I returned and put down my handbag, she [MS PASTOR] said ‘Aicha, you are very rude’ with her arms crossed. I said, ‘I am not rude, you started it, because you should say good morning; instead you just started yelling at me’. There were no residents present during this interaction.
Ms. Pastor said, ‘do you know you told me once you would hit me and make me full of blood’. At this time, I was waving my finger, gesticulating, at chest level when I responded, ‘when did I say that’ Ms. Pastor slapped my finger away. A second time, while I was still gesticulating, I repeated when did I say that?’ Again she slapped my finger away and she said, ‘it is rude to point’. A third time, still waving my finger, I said ‘Lory, I’m not rude, tell me when I said that’. She slapped my finger away a third time and then I just walked away from her. I said I was going to find the RN to separate us, but I was not able to find the RN immediately, so I proceeded to undertake the care of the single assist residents. Ms. Pastor again asked if l was going to assist with resident [REDACTED] and I said ·’no, go and ask the nurse’. I said this because of the way she had spoken to me earlier. At no point during this exchange was my finger ever any closer to her than say 45 cm, and it was not above my shoulder height and certainly was not in her face. I was waving my finger gesturing or emphasizing my questions.”
[107] Ms Nibbs says to prevent further conflict she allocated Ms Swaray and Ms Pastor to different tasks to avoid them working together and reported the events of that morning to Ms Zulu. Ms Nibbs says Ms Zulu instructed her to complete an incident report, which she did. 59
[108] Ms Swaray, says at 9am in the presence of Ms Mann and Ms Zulu, she was asked whether she wanted to be separated from Ms Pastor. She says that she insisted that she was prepared to work together with Ms Pastor. When she returned to the floor Ms Swaray says that Ms Pastor asked her whether she thought that she disliked black people. Ms Swaray says that she responded as follows: 60
“When I returned to the floor Ms. Pastor said ‘Aicha do you really think I said, ‘I hate blacks or anything?’ In short, I replied by reiterating what Ms. Pastor had done to me that morning and the way she had spoken to me, as well as my displeasure as to the way she had spoken to me. Her response was to apologize to me. I accepted her apology. I said, ‘all I want is for us to work as a team on the floor’. She agreed this was the way we should work going forward.”
[109] Ms Swaray says at 10am during morning tea Ms Pastor called her into the TV Lounge and informed her that a resident was lodging a complaint against her. Ms Swaray says that she told Ms Pastor: 61
‘‘don’t worry, I will go and talk to her [the resident]. I will apologize to Nibby [Ms Nibbs] and Salome [Ms Zulu] for you.’’
[110] Ms Swaray says that Ms Pastor cried and she hugged her and they shared morning tea. After morning tea, Ms Swaray says that she went to talk to Ms Zulu and told her that she and Ms. Pastor had sorted out their problems and that she did not want the matter to be taken further. Ms Swaray says that Ms Zulu told her that Aegis could not just ignore the events of that morning. 62
[111] Ms Zulu confirmed that Ms Swaray had informed her after the morning tea break on 5 September 2018 that she and Ms Pastor had resolved their differences and asked to withdraw her complaint. Ms Zulu also confirmed that she told Ms Swaray that notwithstanding Ms Swaray’s request she was obliged to investigate the complaint.
[112] Ms Nibbs says that later the same morning she witnessed Ms Zulu, speak to Ms Swaray and Ms Pastor together. Ms Nibbs says Ms Zulu told them that it is not appropriate to make racial comments and they should resolve any personal differences. Ms Nibbs says that she was shocked when Ms Pastor denied making any racial comment and when she accused Ms Zulu of taking sides. Ms Nibbs says that in her view Ms Pastor was loud, inappropriate and unprofessional in her response to Ms Zulu. 63
[113] It is clear from the evidence of all witnesses that Ms Swaray and Ms Pastor ‘clashed’ on 5 September 2018. However, it is important to distinguish between conduct evidencing a disagreement from conduct that constitutes bullying for the purposes of the FW Act. I am not satisfied that Ms Swaray’s conduct was in the circumstances unreasonable or that it created a risk to health or safety.
[114] It is a characteristic of the human condition that, from time to time, work colleagues do not get on harmoniously. Both Ms Swaray and Ms Pastor should have resolved the order in which they performed their duties in a more collaborative manner. When emotions became elevated, Ms Swaray sensibly walked away from Ms Pastor and sought the intervention of a more senior staff member. This prevented any risk to health or safety occurring by the disagreement becoming more severe.
[115] There is no evidence that Ms Pastor made any formal complaint about Ms Swaray’s conduct on 5 September 2018. In fact the evidence before me is that it was not until Ms Pastor provided her Letter of Response on 1 October 2018 in which she responded to allegations of misconduct on her part on 5 September 2018 that she complained about Ms Swaray’s conduct on 5 September 2018.
[116] It appears that Ms Swaray and Ms Pastor had in fact reconciled their differences before lunch on the same day and the incident may well have otherwise passed without further consequence. However the allegations made by Ms Nibbs of racial discrimination by Ms Pastor were very serious and could not simply be ignored.
[117] In all the circumstances I am not satisfied that Ms Swaray’s conduct on 5 September 2018 in its own right or in combination with other conduct constituted workplace bullying.
Allegation - Ms Zulu bullied Ms Pastor by progressing the Misconduct Allegations against Ms Pastor
[118] Ms Pastor says that Ms Zulu was Acting Facility Manager when the Misconduct Allegations against her were first raised and that Ms Zulu was therefore responsible for the investigation into the Misconduct Allegations progressing and in doing so bullied Ms Pastor.
[119] Ms Zulu was Acting Facility Manager from 10 September 2018 until 28 September 2018, while the then incumbent Facility Manager, Ms Baxter, was on annual leave. Ms Zulu was therefore not Acting Facility Manager on 5 September 2018. The date on which the Misconduct Allegations were first reported.
[120] Ms Zulu says that Ms Mann reported that Ms Pastor had stated that she did not like working with blacks to Ms Baxter. Ms Zulu says that she understands that Ms Baxter discussed the allegation with the People & Culture Department and that a letter of allegation was issued to Ms Pastor on 17 September 2018. Ms Zulu says that she did not drive the process and that it was initiated by Ms Baxter and followed through by the People & Culture Department. Ms Zulu says that her only involvement was to sign the allegation letter on Ms Baxter’s behalf because Ms Baxter was absent on annual leave at the time the letter was ready to be issued to Ms Pastor. 64
[121] Given the nature of the allegations, particularly the allegation that Ms Pastor made comments of a racially discriminatory manner, Ms Zulu in her supervisory role had a positive obligation to ensure that the allegations about Ms Pastor’s conduct on 5 September 2018 were reported to the appropriate persons within Aegis. There is no evidence before me that Ms Zulu did anything to progress the investigation of the Misconduct Allegations other than ensuring that the allegations were reported. In the circumstances, Ms Zulu’s conduct was neither unreasonable or unsafe. If anything her conduct reduced the risk of bullying occurring in the workplace by ensuring allegations of inappropriate conduct were brought to the attention of senior management within the organisation.
[122] The process and timeliness of the handling of the allegations against Ms Pastor mirrors that of the process and timeliness of the handling of the allegations made by Ms Pastor against Ms Swaray.
[123] I am not satisfied that Ms Zulu’s involvement in the progression of the Misconduct Allegations against Ms Pastor constitutes bullying nor that the investigation into the Misconduct Allegations by Aegis in its own right or in combination with other conduct constituted bullying for the purposes of the FW Act.
Allegation – Ms Swaray bullied Ms Pastor by elbowing her in her waist as she passed Ms Pastor on 1 October 2018
[124] Ms Pastor alleges that Ms Swaray elbowed her in the region of her waist as she passed Ms Pastor in a dining area of the Carrington Facility at 8:40am on 1 October 2018. 65 Ms Pastor says that this caused bruising to her side and that she was in pain for several days after. According to Ms Pastor she reported the incident the same day to Administrative Officer Ms Allyson Delves (Ms Delves) and to Ms Van Rynevald.66
[125] Ms Delves was not called as a witness by Ms Pastor.
[126] Aegis explained that it did not call Ms Delves as a witness because she has been absent from work since November 2018 and that she has requested that Aegis have no direct contact with her. 67
[127] Ms Van Rynevald says that Ms Delves never mentioned the incident to her. 68 Aegis also note that Ms Pastor makes no reference to previously reporting the incident to Ms Delves in her email of 8 October 2018 when she alleges that she had previously informed Ms Van Rynevald of the incident.69]
[128] Ms Swaray denied in her statutory declaration, and under oath at the Determinative Conference, that such an incident ever occurred. In fact she says that on the date in question she was working on a different wing to Ms Pastor, did not enter any of the dining rooms in the Carrington Facility on that day 70 and did not see Ms Pastor in the course of the day.71 Ms Swan confirms that on the day in question Ms Swaray was allocated to Forrest Wing and Ms Pastor was allocated to Healy Wing and that given the significant distance between the two wings it is unlikely their paths would have crossed.72
[129] Ms Swaray asserts that had she struck Ms Pastor with the force necessary to inflict the wounds Ms Pastor alleges she suffered, that other staff or residents would have noticed the incident (given it was alleged to have occurred in the public dining area) or Ms Pastor’s injury (if she was in the amount of pain she alleges she was in). 73
[130] Both Ms Zulu and Ms Van Rynevald say that the first time they became aware of the allegation that the incident occurred was when Ms Pastor sent her email on 8 October 2018. Ms Van Rynevald denies that Ms Pastor’s assertion that she reported the incident to Ms Van Rynevald orally before the email of 8 October 2018. 74
[131] Notwithstanding that Ms Pastor did not report the alleged incident until after Misconduct Allegations were made against her Aegis say that it took seriously Ms Pastor’s allegations that she was elbowed by Ms Swaray and duly investigated the allegation.
[132] The investigation meeting was conducted by Ms Van Rynevald in the presence of Ms Zulu. Ms Swaray denied the allegation and insisted that she was working in another wing on the day in question and hadn’t seen Ms Pastor. Ms Van Rynevald says that she barely knew either Ms Zulu or Ms Pastor and did not afford any favouritism to either. Ms Van Rynevald accepted Ms Swaray’s denial as truthful. Ms Zulu says that she felt that the interview of Ms Swaray was thorough. 75
[133] Aegis concluded that the allegation could not be substantiated. 76
[134] Ms Pastor asserts that the injury she suffered was so severe that in retrospect she says she should have sought medical attention and reported the incident as an assault to the Police. However on the evening of the day on which the incident is alleged to have occurred Ms Pastor sent an email to the Facility Manager attaching her response to the Misconduct Allegations and reporting that Ms Swaray had bullied her on 4 June 2018 relevantly the letter makes no reference Ms Swaray elbowing her that same day. 77 In fact the evidence before me is that it was not until 8 October 2018 that Ms Pastor submitted a written report of the alleged incident involving Ms Swaray to Ms Van Rynevald.78
[135] There is no contemporaneous evidence that the incident occurred. Ms Pastor asserts that she is unable to corroborate the allegation with witness evidence because no residents were present. However, the incident is alleged to have occurred in a communal area of the Carrington Facility at a time it would normally be occupied by residents.
[136] On the balance of probabilities I am not satisfied that the alleged conduct occurred therefore it can not be considered evidence of repeated unreasonable conduct.
Allegation – Ms Zulu bullied Ms Pastor by not properly investigating Ms Pastor’s allegations that on 1 October 2018 Ms Swaray elbowed Ms Pastor in the waist.
[137] Ms Pastor says that as far as she was aware nothing was done about her complaint that Ms Swaray elbowed her in the waist as she passed by her on 1 October 2018. 79 She says that Ms Zulu bears some responsibility for this because Ms Zulu was Acting Facility Manager during this period and that this is further evidence of Ms Zulu bullying her.80
[138] Ms Pastor says that she only became aware that Aegis conducted an investigation into her complaint in the course of these proceedings. She says that a review of the documents related to that investigation indicates that the investigation was conducted hurriedly because the allegation letter sent to Ms Swaray (and attached as an annexure to Ms Swaray’s Form F74 contains no specified date for the investigation meeting or Ms Swaray’s written response. 81
[139] Both Ms Zulu and Ms Van Rynevald say that the first time they became aware of the allegation that Ms Swaray elbowed Ms Pastor in her waist was when Ms Pastor sent her email on 8 October 2018. Ms Van Rynevald denies Ms Pastor’s assertion that she reported the incident to Ms Van Rynevald orally before the email of 8 October 2018. 82
[140] Ms Van Rynevald and Mr Artuz agree that upon receipt of Ms Pastor’s email of 8 October 2018 containing the allegation Ms Van Rynevald promptly referred the email to the People and Culture Department as per standard Aegis procedure. 83
[141] Mr Artuz and Ms Van Rynevald both agree that a template letter was provided by Mr Artuz to Ms Van Rynevald to insert the time and date of the investigation meeting and the due date for the written response. 84
[142] Ms Van Rynevald and Mr Artuz identified the letter attached to Ms Swaray’s Form F74 as the draft letter sent to Ms Van Rynevald for Ms Van Rynevald to insert the time and date for the investigation meeting and for the provision of any written response. 85 Ms Van Rynevald tendered a copy of the letter which she ultimately forwarded to Ms Swaray which contains the relevant time and date for the investigation meeting and for the provision of a written response. That letter was sent to Ms Swaray on 12 October 2018 and informed her that Ms Pastor had alleged that she had elbowed Ms Pastor as she passed by Ms Pastor on 1 October 2018. The letter invited Ms Swaray to respond to the allegations in writing and directed that she attend an investigation meeting.
[143] The investigation meeting was conducted by Ms Van Rynevald in the presence of Ms Zulu. Ms Zulu only attended the meeting because the member of the People and Culture team who was scheduled to attend the meeting was unwell. Ms Van Rynevald asked Ms Zulu to attend the meeting as a witness in accordance with Aegis practices. Both Ms Van Rynevald and Ms Zulu say that Ms Van Rynevald conducted the meeting and was the decision maker not Ms Zulu. Ms Van Rynevald says that Ms Zulu did not influence her decision making in any way. 86
[144] I am satisfied that Ms Zulu’s involvement in the investigation was limited to that of an observer and that the decision maker was Ms Van Rynevald.
[145] The similarities in the allegation letters sent to Ms Swaray and Ms Pastor suggest that they were generated from a template. It appears that the draft template letter was inadvertently filed with the Form 74 rather than the version sent to Ms Swaray.
[146] I am not satisfied that Ms Zulu’s involvement in the investigation of the allegations made by Ms Pastor constitutes bullying. Nor am I satisfied that Aegis bullied Ms Pastor by not conducting a timely or fulsome investigation into the allegations made by Ms Pastor.
[147] Aegis concede that Ms Pastor was not advised of the outcome of the investigation into her complaint however they say that this was an administrative error which occurred due to the multiple changes of personnel in the role of Facility Manager during the period in which the investigation occurred. 87
[148] Given the evidence with respect to the change in personnel in the role of Facility Manager during the period in question, combined with the evidence of the nature of the investigation which was conducted, I am satisfied that the failure to notify Ms Pastor of the outcome of the investigation into her complaint was a result of human error. While the failure to notify Ms Pastor may not be best practice from a human resource perspective I am not satisfied that in all the circumstances that the failure to notify Ms Pastor of the outcome of the investigation was unreasonable conduct which amounted to bullying for the purposes of the FW Act.
Allegation – Ms Swaray bullied Ms Pastor by intentionally flicking water at Ms Pastor
[149] Ms Pastor says that a week after the alleged elbowing incident Ms Swaray intentionally splashed water on her while Ms Swaray was washing her hands. Ms Pastor says that when she complained Ms Swaray apologised and used paper towels to finish drying her hands. 88
[150] Ms Swaray described the incident in her witness statement in the following way:
“I had walked into the staff room to make a cup of tea. I went to the sink preparing to wash a cup to make my cup of tea and when I opened the tap up, there was an unexpected burst of water which sprayed water beyond the sink. Ms. Pastor was standing close to the sink and screamed out at me and was very upset. I was embarrassed and apologised to her on three occasions, then quickly left the room. I was too embarrassed and unsettled to even have my cup of tea after that. The staff members present were Delvyn McDonald and Neha Dangol.”
[151] Ms Van Rynevald says that Ms Pastor did not report the alleged incident to her and that she was unaware of Ms Pastor’s allegation that Ms Swaray splashed water in Ms Pastor’s face until these proceedings. 89
[152] The incident appears to have occurred by accident. I am not satisfied that Ms Swaray behaved unreasonably, that the splashing of water onto Ms Pastor was an example of repeated unreasonable conduct directed towards by Ms Swaray or that Ms Swaray’s conduct created a risk to health and safety.
Allegation – Ms Zulu bullied Ms Pastor by rostering her primarily to a more demanding work area rather than rotating her among work areas like other AINs
[153] Ms Pastor alleges that Ms Zulu bullied her by rostering her primarily to a more demanding work area rather than rotating her among work areas like other AINs and that this conduct created a risk to health and safety leading to Ms Pastor sustaining an injury to her shoulder.
[154] There is no evidence that Ms Pastor expressed any concerns about her roster with any of the Facility Managers or the CNMs. Ms Zulu says that Ms Pastor never raised with her concerns about where she was rostered. Ms Zulu also says that Ms Baxter never indicated that Ms Pastor had raised any such concerns with her. Ms Van Rynevald says that Ms Pastor never raised any concern with her either. 90
[155] The evidence of both Ms Zulu and Ms Swan is that until 3 December 2018 91 the rostering of AINs to particular Wings was performed by the CNM’s (Ms Zulu and Ms Swan) on a daily basis. They both agreed that these decisions were normally made jointly and that the decisions were only made independently on those occasions that operational priorities prevented a joint decision being made. For example if one CNM was meeting privately with a family.92
[156] Ms Swan and Ms Zulu both agree that neither allocate staff to particular Wings as a form of punishment nor do they intentionally ever allocate staff to a wing with heavier residents. 93
[157] In any event Ms Zulu says that the weight of residents is irrelevant because Aegis have a ‘no lift’ policy. Hoists and electronically adjustable beds are utilised to avoid the need to lift residents and to minimise the risk of manual handling injuries. In fact there is evidence that Ms Pastor was specifically counselled about ensuring she used the hoist when transferring a patient in 2015. 94
[158] Ms Nibbs confirmed that no staff member had ever indicated to her that they were more susceptible to injury in one wing of the Carrington Facility as opposed to another. 95
[159] Ms Zulu and Ms Mann say that the workload is similar for all AINs in all wings of the Carrington Facility barring fluctuations from time to time according to a particular resident’s unique needs at that time. 96
[160] Ms Swan and Ms Zulu say that at least three residents, or their families, have made complaints about Ms Pastor and indicated that they do not want Ms Pastor to provide care to them or their loved one. 97 Ms Swan says that it is Aegis practise not to allocate an AIN to a resident who has complained about that AIN. Ms Swan says that other AINs were rotated through the other Wings of the Carrington Facility more often because they did not have the same restrictions as Ms Pastor in terms of which residents they could be allocated to care for.
[161] Ms Pastor argued that there were multiple residents in each Wing therefore she could be allocated to any Wing and care for other patients who hadn’t complained about her.
[162] Ms Swan gave evidence that while some Wings did have a larger number of residents, the number of residents varied significantly from Wing to Wing. She conceded that the Healy Wing had as many as 30 residents however she explained that one of those residents was a “full assist” patient who required all four AINs rostered on that ward to assist when she was lifted and that patient was one who had complained about Ms Pastor. According to Ms Swan Lodge North was also occupied by a resident who had also complained about Ms Pastor but it housed only 16 residents. Ms Zulu’s evidence is that Lodge South with 43 residents was the only ward which did not contain residents who had previously complained about Ms Pastor and this was therefore the only Wing to which Ms Pastor could be allocated. 98
[163] Ms Swan also pointed out that she is responsible for Lodge Wings not Ms Zulu. 99
[164] While Ms Pastor tendered medical evidence that she is suffering a shoulder injury there is no evidence before me to establish that the injury occurred as a result of any bullying behaviour. There is no evidence before me that the workers compensation claim filed by Ms Pastor in relation to the injury has been accepted by the relevant insurer as having been incurred in the workplace. There is therefore no evidence of a causal connection between the alleged bullying and the injury. In any event based on the evidence I am not satisfied that a relevant risk arose from the conduct.
[165] There is no evidence that Ms Pastor raised concerns about her work allocation in advance of the misconduct allegations being raised against her or in advance of commencing these proceedings. Consequently, there is no evidence that Aegis would have refused to change her allocation had she identified reasonable grounds for that to occur. The evidence is that rostering decisions were generally not made independently by Ms Zulu and there appear to be genuine operational reasons why Ms Pastor was rostered to the work areas she was rostered to. The weight of witness evidence is that the workload of each Wing is comparable.
[166] I am therefore not satisfied that, to the extent that Ms Zulu was responsible for the rostering of Ms Pastor, that she did so in a manner which constituted workplace bullying.
Allegation – Aegis bullied Ms Pastor by showing the Video of the Patient Incident to other AINs but not Ms Pastor
[167] Ms Pastor alleges that in April 2018 during the investigation into the Patient Incident her support person requested that she be permitted to view the Video of the Patient Incident but that Mr Waldron had refused to allow her to do so. Ms Pastor says that on 4 September 2018 Ms Zulu told other AINs that she had been to Aegis Head Office and that she was told while she was there that the Video of the Patient Incident had been shown to AINs at other Aegis facilities. 100
[168] Ms Zulu says that the Video of the Patient Incident was shown to her and other CNMs at a regular Aegis CNM meeting but was not shown to any AINs. She agrees that after viewing the footage she took the opportunity to tell AINs at the Carrington Facility that she had viewed the footage and to remind AINs about the importance of quality care. 101
[169] Mr Artuz confirmed that the Video of the Patient Incident was shown only to CNMs and not to AINs. 102
[170] It is unclear why Mr Waldron declined to allow Ms Pastor to view the Video of the Patient Incident particularly given that it was shown to other staff, albeit more senior staff. However, I am not satisfied given my findings above that the failure to provide access is an example of repeated unreasonable behaviour directed towards Ms Pastor by Mr Waldron particularly, or Aegis more generally. It is also unclear how the refusal to allow Ms Pastor access to the video might create a risk to Ms Pastor’s health and safety. I am therefore not satisfied that the refusal to provide access to view the video constitutes bullying. Given the conclusion that the conduct does not constitute bullying I cannot order that Aegis provide Ms Pastor with access to the video however I would recommend that they consider doing so to enable her to address the allegations which led to her being issued with the Final Warning.
Other Matters
[171] During the course of the Determinative Conference, and in her Closing Submissions, 103 Ms Pastor alleged that the conduct of Mr Waldron in the Conciliation Conference and subsequently, amounted to bullying. I queried during the Determinative Conference whether she wished to formally press these allegations. She confirmed that she did not.104 Had she wished to do so it would have been necessary to adjourn the proceedings to allow Mr Waldron and Aegis to obtain legal advice and file evidence and submissions in relation to these allegations. As a matter of procedural fairness given the absence of an opportunity for Mr Waldron or Aegis to file any evidence or submissions in response to these allegations I have therefore not addressed them in this decision.
[172] In her closing submissions Ms Pastor also raised additional allegations of bullying against other individuals which were also not the subject of evidence before me in these proceedings. 105 I have also not addressed those allegations in this decision as a matter of procedural fairness given the absence of an opportunity for those individuals or Aegis to file any evidence or submissions in response to those allegations.
Conclusion
[173] I am not satisfied that Ms Zulu, Ms Swaray or Aegis either as individuals or as a group have repeatedly behaved unreasonably towards Ms Pastor or that the behaviour identified by Ms Pastor, to the extent that it actually occurred, created a risk to health and safety. Accordingly I am not satisfied that Ms Pastor has been bullied within the meeting of the FW Act.
[174] In her Form F72 the remedy sought by Ms Pastor was:
a. Ms Swaray to be rostered onto different work areas or shifts and that they both report to different persons in the workplace.
b. The rotation of work in the heavy section be equitably rotated in fairness rather than a person being left to work in a heavy section for too long while others are given work areas that are less stressful or difficult.
[175] In relation to the remedy sought by Ms Pastor, Aegis submitted that:
“22. Regardless of the outcome of this hearing, as previous discussed, effective 3 December 2018 Aegis Carrington has implemented a new rostering policy centred around continuity of care for our residents. Under this Resident Centred Care, to the extent possible, care staff are consistently assigned to the same set of residents to provide continuity of care as well as improve the nature of relationships between carers and residents. With the implementation of the Resident Centred Care, we no longer rotate our care staff, However as we have done with other staff we would consult with Ms. Pastor as to where she would be allocated. Therefore Ms Pastor should not look forward to being rotated through the various wings of the facility.
23. Regardless of the outcome of this hearing, Aegis has undertaken the appropriate action to ensure Ms. Pastor and Ms. Swaray have not been rostered on the same shift and wing since the incident on 5 September 2018.”
[176] Aegis of their own accord have taken steps to ensure that Ms Pastor and Ms Swaray have not been rostered to the same shift or Wing since the incident on 5 September 2018.
[177] Ms Pastor has been unable to establish that the workload in any particular Wing is more onerous than another. In any event under the new work allocation model she will not be allocated to a particular Wing. Rather she will be allocated, after consultation with her, to care for particular patients.
[178] Ms Pastor has been unable to establish that work has been allocated in an unfair manner in the past. There is therefore no basis to presume that work will be allocated unfairly to her under the new work allocation model.
[179] Ms Green gave evidence that all employees at the Carrington Facility were required to attend five mandatory training sessions on 8 March 2018 which addressed the topic of bullying in the workplace and reminded employees that bullying would not be tolerated in the workplace. 106 In light of the evidence above in relation to the investigation of bullying allegations in the workplace and Ms Green’s evidence with respect to staff training in relation to workplace bullying I am satisfied that Aegis have been proactive in preventing workplace bullying and responding to allegations of workplace bullying when they have been reported.
[180] Section 789FF of the FW Act sets out the circumstances in which the FWC may make an order to stop bullying:
“FWC may make orders to stop bullying
(1) If:
(a) a worker has made an application under section 789FC; and
(b) the FWC is satisfied that:
(i) the worker has been bullied at work by an individual or a group of individuals; and
(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;
then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.
(2) In considering the terms of an order, the FWC must take into account:
(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body--those outcomes; and
(b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes--that procedure; and
(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes--those outcomes; and
(d) any matters that the FWC considers relevant.”
[181] In order to make an order to stop bullying the FWC needs to be satisfied that a worker has been bullied at work by an individual or group of individuals and that there is a risk that the worker will continue to be bullied at work by that individual or group.
[182] I am not satisfied that Ms Zulu, Ms Swaray or Aegis either as individuals or as a group have repeatedly behaved unreasonably towards Ms Pastor or that the behaviour identified by Ms Pastor occurred or if it did that it created a risk to health and safety. Even if the conduct identified by Ms Pastor had constituted bullying for the purposes of the FW Act, in light of the steps taken by Aegis outlined above, I am not satisfied that there exists a future risk that Ms Pastor will be bullied at work by Ms Zulu, Ms Swaray or Aegis.
[183] In light of the above the Application is hereby dismissed. An order (Print PR706166) to this effect will be issued with this Decision.
DEPUTY PRESIDENT
Appearances:
Ms Loredana Pastor on her own behalf.
Ms Salome Zulu on her own behalf.
Ms Aicha Swaray on her own behalf.
Mr Grant Waldron for Aegis Aged Care Group.
Hearing details:
2019.
Perth.
10 January.
Final written submissions:
Applicant, 1 February 2019.
Aegis Aged Care Group, 15 February 2019.
Printed by authority of the Commonwealth Government Printer
<PR703899>
1 [2013] FCA 291.
2 This was done in a manner consistent with the statutory charter of the Commission. See the discussion of some of the relevant considerations for a similar Tribunal in Minogue v HREOC [1999] FCA 85.
3 Transcript at PN123-PN129.
4 Transcript at PN713.
5 Amie Mac v Bank of Queensland & Or [2015] FWC 774.
6 Seven Network (Operations) Limited & Ors v James Warburton (No 1) [2011] NSWSC 385 at [3].
7 Transcript at PN472.
8 Exhibit A1 at [4].
9 Aegis Aged Care Group, About Us Who is Aegis Aged Care (2019) < Exhibit R6 at [5].
11 Aegis Aged Care Group, Aegis Carrington Familiar sociable residence (2019) < Exhibit R4 at [4].
13 Exhibit R8 at [4].
14 Exhibit R9 at [6].
15 Exhibit R9 at [5].
16 Exhibit R4 at [5].
17 Exhibit R7 at [4]-[5].
18 Exhibit A1 at [8] and at Attachment LP-1.
19 Exhibit A1 at Attachment LP-1.
20 Ibid.
21 Exhibit R1.
22 Exhibit A1 at Attachment LP-1 – Letter dated 1 October 2018.
23 Ibid.
24 Exhibit A1 at Annexure LP-1 – Email dated 8 October 2018, Exhibit R2.
25 Exhibit A1 at Annexure LP-1 – Letter dated 12 October 2018.
26 Exhibit A1 at Annexure LP-1 – Letter dated 22 October 2018.
27 Exhibit A1 at Annexure LP-1 – Letter dated 2 November 2018.
28 Ibid.
29 Exhibit A1 at Annexure LP-1 – Letter dated 2 November 2018.
30 Section 789FC(1) of the FW Act and Bowker v DP World Melbourne (2014) 246 IR 138 at [51].
31 Fair Work Act 2009 (Cth) s.789FC(2).
32 Fair Work Act 2009 (Cth) s 789FD(3).
33 Applicant’s Outline of Submissions at [1]-[5].
34 Naidu v Group 4 Securitas Pty Ltd and Anor [2005] NSWSC 618
35 Naidu v Group 4 Securitas Pty Ltd (2005) NSWSC 618; Styles v Murray Meats Pty Ltd (Anti-Discrimination) [2005] VCAT 914.
36 Naidu v Group 4 Securitas Pty Ltd (2005) NSWSC 618
37 Willett v State of Victoria [2013] VSCA 76.
38 WorkCover Authority (NSW) (Inspector Maddaford) v Coleman [2004] NSWIRComm 317.
39 Willett v State of Victoria [2013] VSCA 76.
40 Naidu v Group 4 Securitas Pty Ltd and Anor [2005] NSWSC 618.
41 Application by G.C. [2014] FWC 6988.
42 Ibid at [47].
43 Newcastle Wallsend Coal Co Pty Ltd v Workcover Authority (NSW) (Inspector McMartin) [2006] NSWIRComm 339; 159 IR 121 at [301].
44 Fair Work Act 2009 (Cth) s 789FD(2).
45 Exhibit A1 at Attachment LP-1– Letter dated 1 October 2018 and Transcript at PN358.
46 Exhibit R3 at [10] and [7] and Transcript at PN552-553.
47 Exhibit R4 at [8]-[9] and Transcript at PN647-PN648.
48 Transcript at PN357-PN364.
49 Exhibit A1 at [19].
50 Exhibit R11 at [6]-[11].
51 Exhibit R3 at [11].
52 Ibid.
53 Ibid.
54 Exhibit R7 at [11].
55 Exhibit R7 at [12].
56 Ibid.
57 Exhibit R7 at [13].
58 Exhibit R3 at [11].
59 Exhibit R4 at [11] and Exhibit R7 at [13]-[14].
60 Exhibit R3 at [11].
61 Ibid.
62 Ibid.
63 Exhibit R7 at [15].
64 Exhibit R4 at [12].
65 Exhibit A1 at Annexure LP-1 – Email dated 8 October 2018, Exhibit R2.
66 Transcript at PN389-PN398.
67 Respondent’s Closing Submissions at [14].
68 Exhibit R9 at [6], Exhibit R9 at [7] and PN1121-PN1131.
69 Respondent’s Closing Submissions at [11].
70 Exhibit R3 at [18].
71 Transcript at PN558.
72 Exhibit R8 at [15].
73 Exhibit R3 at [20].
74 Exhibit R4 at [7], Exhibit R9 at [6], and Exhibit R9 at [7].
75 Exhibit R4 at [14] and Exhibit R9 at [9] and [11].
76 Exhibit A1 at Annexure LP-1 – Letter dated 22 October 2018.
77 Exhibit A1 at Annexure LP-1 – Letter dated 1 October 2018 and Annexure R1.
78 Exhibit R2.
79 Exhibit A1 at [10]-[11].
80 Ibid.
81 Exhibit A1 at [10]-[11] and Exhibit R10.
82 Exhibit R4 at [9] and Exhibit R9 at [6] and [7]
83 Exhibit R9 at [8] and Exhibit R6 at [12].
84 Exhibit R6 at [12] and Attachment A.
85 Exhibit R9 at [8] and at Attachment 1, Exhibit R10 and Exhibit R6 at [12].
86 Exhibit R4 at [14] and Exhibit R9 at [9] and [11].
87 Respondent’s Closing Submissions at [15].
88 Exhibit A1 at [21].
89 Exhibit R9 at [13].
90 Exhibit R9 at [15] and R4 at [17]
91 On 3 December 2018 Aegis introduced a new allocation system called Resident Centered Care where AINS are allocated to specific residents.
92 Exhibit R4 at [17] and Exhibit R8 at [8].
93 Exhibit R4 at [17] Exhibit R8 at [9].
94 Exhibit R4 at [17]-[18] and Attachment 1.
95 Exhibit R7 at [9].
96 Exhibit R4 at [21] and Exhibit R7 at [9].
97 Exhibit R4 at [19]-[20] and Attachment 2 and Exhibit R8 at [10].
98 Transcript at PN945-PN961.
99 Exhibit R8 at [12].
100 Exhibit A1 at [7]-[9].
101 Exhibit R4 at [7].
102 Exhibit R6 at [11].
103 Applicant’s Closing Submissions at [21].
104 Transcript at PN472.
105 Applicant’s Closing Submissions at [21].
106 Exhibit R11 at [14].
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