Mrs Miranda Jane Gore

[2016] FWC 2559

[2016] FWC 2559

FAIR WORK COMMISSION

DECISION

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

Mrs Miranda Jane Gore
(AB2015/642)

COMMISSIONER CLOGHAN PERTH, 24 MAY 2016

Application for an FWC order to stop bullying.

[1] This is an application by Mrs Miranda Jane Gore (Mrs Gore or Applicant) for an order to stop bullying against Mr Nia Evans, Mrs Adrienne Evans and Mrs Kristine Chadwick (by name or “three (3) employees”).

[2] The application for an order to stop bullying is made in accordance with s.789FC(1) of the Fair Work Act 2009 (FW Act).

[3] Mrs Gore and the three (3) employees are employed by the Yura Yungi Aboriginal Medical Service in Halls Creek, Western Australia (YYAMS or Employer).

[4] Following two conciliation conferences, the application was arbitrated in Halls Creek on 19 April 2016.

[5] At the hearing, Mrs Gore represented herself and gave evidence on her own behalf.

[6] The three (3) employees represented themselves and gave evidence on their own behalf.

[7] Mr Banks, Chief Executive Officer (CEO), made a closing submission on behalf of the Employer.

[8] Having considered the submissions, evidence and the legislation, I have concluded that Mrs Gore’s application should be dismissed. The following are my reasons for dismissing the application.

RELEVANT LEGISLATIVE FRAMEWORK

[9] Section 789FD of the FW Act provides when a worker is bullied at work as follows:

“(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.”

[10] Section 789FF of the FW Act relevantly provides:

“(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) ...”

CONSIDERATION

Relevant statutory context

[11] For a worker to be bullied at work, the statutory context is that the behaviour directed towards the worker is:

• repeated;



• unreasonable; and



• creates a risk to the person’s health and safety.

[12] “Repeated” is more than a single incident.

[13] “Unreasonable behaviour” is determined objectively having regard to all the circumstances.

[14] A “risk to health and safety” is the possibility of being exposed to harm or danger to one’s health and safety. The possibility or risk must be rationale and not an ideation.

[15] A person is not bullied if it is reasonable management action carried out in a reasonable manner. Reasonable management action refers to the ability of employers to take appropriate management action, including responding to poor performance, taking necessary disciplinary action and directing and controlling the way work is carried out.

RELEVANT BACKGROUND

[16] Mrs Gore is a casual receptionist.

[17] On 7 December 2015, a workplace incident occurred.

[18] Mrs Gore states in her application that the last time the alleged bullying behaviour occurred was 14 December 2015.

[19] Mrs Gore made this application on 16 December 2015.

[20] On 11 January 2016, Mrs Gore wrote a letter of complaint to the Board of the YYAMS in which she alleges, “bullying and harassment by certain staff towards myself”. Further, Mrs Gore states:

“The behaviour that I have been subjected to started when I was pressured by a number of Yura Yungi staff members to behave inappropriately which has then led to teasing, the making of practical jokes, aggressive behaviour and staff basically ignoring my work requests in accordance with my roles and responsibilities.

I have attached an outline of the details in relation to the behaviour that I have been subjected to by various Yura Yungi staff members…” 1 (my emphasis).

[21] The “attached” outlines one (1) incident involving Mrs Joan Wilson, Senior Aboriginal Health Worker on 3 December 2015. Mrs Gore concludes:

“Since that point in time, staff have made comments about me, made me feel uncomfortable in the workplace, and have also engaged in inappropriate work practices which has affected my mental state.” 2

[22] In both the original application and her amended application, Mrs Gore names a Ms Joan Seton as a person against whom bullying is alleged. In a further amended application, Ms Seton in removed. Ms Joan Seton is also known as Mrs Joan Wilson.

[23] I note also in the original application and the first amended application, Ms Adrienne Evans is not mentioned as a person against whom bullying is alleged. However, Ms Evans is added to the list of persons whom bullying is alleged in an amended application on 5 January 2016.

[24] It would appear that the incident in which Mrs Wilson, “tried to pressure me to behave inappropriately by trying to make me sign the letter” is not a behaviour which Mrs Gore believes constitutes bullying, as no application has been made against Mrs Wilson or her conduct. However, the alleged consequential behaviour of others is considered by Mrs Gore to constitute bullying behaviour.

[25] What then is the evidence of bullying which Mrs Gore alleges constitutes bullying? I begin with Ms Evans.

Ms Evans

[26] Mrs Gore states:

“After the New Year holidays for a week and a half Ms Evans and another worker had been coming into the reception every day in turn almost every half hour to an hour into the reception when they are not seeing Patients and if I were not at my desk they would check in the room at the front reception, as soon as they would see me present they would be on their way.

I know this because every time the pair left Reception they do not look or call out for any Patients in the waiting room. It is different when they seek a Patient, they usually call them out and take the patients into their consulting room…” 3 (my emphasis) (“checking up” allegations).

[27] Mrs Gore refers to two further incidents. Firstly, that Ms Evans, “to my surprise complimented another Casual receptionist worker how he does a great job”. Secondly, allegedly the impolite manner in which Ms Evans dealt with Ms Georgina Yeeda 4 and immediately after this incident, Ms Evans stating, “you’ll just have Georgina for the rest of the day I’m going home thanks to you! in a tone and pointing her finger at me”.5

[28] What is immediately noticeable is that Mrs Gore’s second amended application, while dated 16 December 2015, was forwarded to the Commission on 5 January 2016. With the exception of the “checking up” allegations, all other conduct alleging bullying was, on 13 January 2016 – over a week after naming Ms Evans as an alleged bully in her amended application on 5 January 2016.

[29] Even if I considered Ms Evans making a compliment about another employee, I have no hesitation, of itself, in concluding that this is not bullying of another employee who did not receive a compliment. Further, in seeking a compliment or “thank you” and not receiving one, is also, of itself, not an action of bullying towards another employee.

[30] With respect to the allegation of “checking up” on Mrs Gore, Ms Evans’ response is, “I have no idea what Miranda is talking about”. 6 I am inclined to accept this evidence.

[31] Mrs Gore agrees that it was a normal practice for Ms Evans to determine whether patients were in the Reception area. Obviously, if there were no patients, it was unnecessary for Ms Evans to call out a name. Ms Evans was doing what she normally did – checking to see if a patient was present. I am unable to agree with Mrs Gore that because Ms Evans continued with her normal practice and no patients were present, it can be inferred that she was “checking up” on Mrs Gore. Finally, Ms Evans gave uncontested evidence that as the only Registered Nurse, she was frequently in and out of the reception area to carry out administrative duties. 7

[32] The allegations of bulling, by “checking up” on Mrs Gore by Ms Evans, is also unusual in that Mrs Gore only refers to Ms Evans and not the “other” worker who allegedly was involved in the behaviour.

[33] Ms Evans admits that she told Mrs Gore that she was “going home on stress leave”. It would seem to me that it is good practice in a small organisation, to let the Receptionist know of one’s whereabouts. Ms Evans explained her “tone” was due to the context of just having read the Commission’s email which had named her as an alleged bully.

[34] In summary, I am not able to conclude that Ms Evans repeatedly behaved unreasonably towards Mrs Gore. The only purported unreasonable behaviour, prior to Ms Evans being named as an alleged bully, is the “checking up” allegation. Mrs Gore’s allegation suffers from the material defect that she is being selective about who bullied her – only Ms Evans, and not the other staff member. In any event, Ms Evans has a perfectly credible explanation for her actions.

[35] Finally, the other alleged bullying behaviours are all post the application, and in any event, objectively determined, are not unreasonable behaviour.

[36] Simply put, I am not satisfied that, having regard to all the circumstances, Ms Evans behaved in such a way as to conclude that she bullied Mrs Gore at work.

Ms Chadwick

[37] Ms Chadwick is described by Mrs Gore as a “Senior Receptionist acting Line Manager”.

[38] Mrs Gore describes the first allegation of bulling on 2 December 2015, as a “suspicious stare”. Ms Chadwick responds to this allegation by giving evidence that she “wasn’t at work due to my wedding”. 8

[39] Mrs Gore alleges that on 9 December 2015 at approximately 10:00 am, “I notice (sic) Kristine [Ms Chadwick] was more quieter and withdrawal (sic) than usual, I would approach her as normal for her assistance…seeing that Kristine acted in a hesitant manner towards me I started to feel something was not right emotionally”. 9

[40] Ms Chadwick responds that she was, at the time, at front reception with other staff, and Mrs Gore was treated no differently to the other receptionist. 10

[41] Mrs Gore’s next allegation against Ms Chadwick is that she stopped texting her to ask what time she would be at work or the required time to be at work. 11

[42] Ms Chadwick asserts that she is not Mrs Gore’s line manager. Notwithstanding this reporting arrangement, Ms Chadwick concedes that, as the senior receptionist, she sends text messages to the other receptionist, “if they are late and haven’t advised a person at work or they haven’t attended work at all”. 12

[43] From her evidence, it would appear that Ms Chadwick has a sense of obligation to the YYAMS to ensure reception runs as smoothly as possible. To this extent, within her own work area, Ms Chadwick appears to go beyond what is required for the position and text the other receptionists.

[44] Ms Chadwick makes the obvious statement that Mrs Gore should be aware of YYAMS practice that if an employee is not able to attend work, he or she should advise their supervisor/manager as a courtesy. 13

[45] I apprehend from her evidence that Ms Chadwick feels aggrieved such an allegation is made against her. She states, “I do believe that as an employee, it is your [Mrs Gore] sole responsibility…to let the workplace informed”. 14

[46] The allegation regarding Ms Chadwick ceasing texting Mrs Gore, was preceded by an incident involving the Applicant’s late attendance at work.

[47] Ms Chadwick’s evidence is that, within a few days of Mrs Gore stating that she has a contract to start at 10:00 am, Mrs Gore arrived at work at 10:30 am. 15 Ms Chadwick and Mrs Gore exchanged words in which Mrs Gore objected to Ms Chadwick’s “tone of voice” while she acted in a polite manner. Ms Chadwick’s evidence is that receptionists, including Mrs Gore, know that if a receptionist does not attend work on time, she has to sit on the front desk and help out.

[48] The incident is too petty to record in any further detail and does a disservice to the definition of being bullied at work.

[49] The final incident relates to Mrs Gore attending a doctor within working hours which led to the reception area being unattended.

[50] Mrs Gore states:

“Kristine [Ms Chadwick] had left for lunch without letting me know in courtesy she could have let me know. This attitude confirmed why she treated me the way she did and made me feel upset about the whole thing”. 16

[51] Ms Chadwick responds that earlier on the same morning she informed the Clinic Coordinator that she had to leave at 12 noon to attend a school function expecting reception to be covered by Mrs Gore. Mr Evans corroborated this evidence. Notwithstanding that Mrs Gore was seated next to Ms Chadwick that morning, Ms Chadwick gave uncontested evidence that Mrs Gore never mentioned “anything about seeing a doctor” 17 at midday.

[52] Having considered the totality of Mrs Gore’s allegations towards Ms Chadwick, I am satisfied that none of the incidents, separately or combined, can be described as repeated unreasonable behaviour which creates a risk to the Applicant’s health and safety.

[53] I now turn to allegations of bulling by Mr Evans towards Mrs Gore.

Mr Evans

[54] Mr Evans is YYAMS’ Clinic Coordinator.

[55] The first allegation of bullying is when Mr Evans requested Mrs Gore to write detailed messages for staff when that member of staff is unable to take a telephone call. 18 Mrs Gore suggested to Mr Evans that he should get the three (3) casual receptionists together “and talk to the group and not just me or else the same things are just going to keep happening”.19 Mr Evans did not reply to her suggestion.20

[56] The next instance of alleged bullying relates to when Mr Evans asked Mrs Gore whether she was aware of or had read the, “One Doctor Policy”. Mrs Gore stated that she had no knowledge of the Policy, at the time. However, when she read it later, she conceded that she was aware of it from the commencement of her employment. 21

[57] The evidence by Mrs Gore regarding the One Doctor Policy relates directly to an incident in which Mrs Gore had added two (2) new patients to see a doctor. This incident, it appears, led to a “patient overload” event.

[58] With respect to these two incidents, I am not satisfied that they qualify as being bullied at work. Mr Evans is the Clinic Coordinator and should be given latitude to inform staff on how to do their job as and when particular issues arise. Whether Mr Evans “picks up” suggestions of staff, is a matter for him; all staff suggestions are a matter for him to adopt or otherwise. Finally, I consider Mr Evans, as Clinic Coordinator, to be the best placed member of staff to avoid patient overload, and instruct a receptionist on ensuring this does not occur.

[59] The next incident of alleged bullying involved Mrs Gore dealing with a patient who allegedly had lost his driver’s licence because YYAMS had not “faxed off his documents”. At the time of the incident, Mr Evans was dealing with: an unexpected workload issue, a visiting specialist who needed computer login details, a staff member who had left unexpectedly and three (3) out of five (5) clinic staff absent. 22

[60] Mrs Gore asserts that when attempting to resolve whether the patient’s documents had been faxed, Mr Evans had “ignored” her by talking to somebody else after she had called out his name, and Mr Evans “wanted to walk off regardless of my presence”. 23

[61] Mrs Gore did eventually speak to Mr Evans. Mrs Gore’s written evidence is as follows:

“Nia [Mr Evans] replied and I quote, ‘I can’t do anything’, I said to Nia ‘well you need to speak to him because he is very upset about losing his license’ and then I walked off. The whole time of the event I was trying to figure out why Nia was being disrespectful towards me and then I started losing my concentration at work and feeling like I didn’t want to be there” 24 (my emphasis).

[62] Mr Evans concedes that on that particular day, for the reasons above in paragraph [59], he may have been distracted. However, his evidence is that he resolved the problem concerning the driver’s license even though it was a doctor’s responsibility.

[63] This interaction between Mrs Gore and Mr Evans is noticeable for a number of reasons. Firstly, after searching for three other staff, Mr Evans is the first person Mrs Gore discovers, and consequently, “her problem” becomes “his problem”. Further, after telling Mr Evans that he needs to speak to the patient, she walks away and ironically thinks why is he being “disrespectful” towards her.

[64] While “managing upwards” is a common feature of the workplace, it should be done with deftness. When “managing upwards” is met with resistance by a superior, an employee should not consider it “disrespectful”. For Mrs Gore to consider such a situation as “disrespectful” is to turn an organisation’s hierarchy “on its head”.

[65] The final allegation by Mrs Gore against Mr Evans relates to an incident in which he discovered reception had been unattended for 40 minutes. Mrs Gore was in a Doctor’s consulting room. Mr Evans knocked and when the Doctor opened the door, he advised Mrs Gore to return to reception and that she could see the Doctor after she finished work at 2:00 pm 25.

[66] Mrs Gore describes this event as “confronting”. Mrs Gore went back to reception and “sat there thinking to myself, ‘hang on I don’t need to be here at work after being treated and feeling like this’ and so I decided to go home”. 26

[67] Mr Evans describes the interaction as “firm but polite” 27

[68] I have some concerns regarding Mrs Gore’s evidence. Firstly, Mrs Gore states that “I started work at 10:00 am and arranged an appointment with a doctor at 12:00 noon”. However, with respect to her allegations against Ms Chadwick, she states that, “I came into work at Monday 14^th December 2015 at 10:30am…” 28

[69] I am satisfied, from the evidence, that Mrs Gore attended work 30 minutes late. Further, I am satisfied that this lateness caused Ms Chadwick to “cover” for her. Thirdly, I am satisfied that Mrs Gore did not advise her purported line manager that she had arranged to see a doctor in working hours. Fourthly, this arrangement led to the reception being unattended for 40 minutes. Fifthly, I find nothing untoward in Mr Evans requiring Mrs Gore to return to reception in the absence of staff.

[70] If Mrs Gore had adopted the common courtesy of letting others know what she intended to see a doctor, other arrangements could have been put in place to overcome Mr Evans having to instruct her to return to her post.

[71] Similar to Mr Evans and Ms Chadwick, I am satisfied, on the evidence, that Mr Evans’ actions did not constitute in Mrs Gore being bullied at work. Further, to avoid any doubt, I am satisfied that Mr Evans’ actions were reasonable management actions in all the circumstances.

CONCLUSION

[72] Parliament allows a worker who has been bullied at work to apply to the Commission for an order for others to stop bullying.

[73] Any application of alleged bullying is both inevitably, and importantly, highly contextual. However, the legislation does not provide for an applicant’s self-belief or self-conviction, to trump all other factors.

[74] An applicant’s perspective has to be balanced against the conduct of others, including reasonable management action carried out in a reasonable manner.

[75] It is normal, so I am informed, to see patterns in clouds or among trees. However, we also see patterns where others do not – especially gamblers. Sometimes we are just overly sensitive to what is happening around us when we allegedly see a pattern.

[76] Having a preference about how things should be done, like Mrs Gore, and suggestions not being agreed to by a supervisor, is not bullying. The choice is a matter for the supervisor. An employer gives a supervisor, a role and responsibilities. To deprive a supervisor of the ability to carry out their role in a reasonable way, as Mr Evans did, is not a breach of reasonable management action.

[77] While Mrs Gore may be sincere in her beliefs and views, the anti-bullying provisions of the FW Act, are to protect bullying behaviour, not substantially a person’s feelings.

[78] Having considered the facts and evidence, I am unable to conclude that Mrs Gore’s complaints of bullying are made out. The alleged bullying was over-estimated and insubstantial; in particular, there was no repetition of unreasonable behaviour.

[79] The conduct of Ms Evans, Ms Chadwick and Mr Evans cannot be given the expansive view of bullying as submitted by Mrs Gore. If the Commission adopted such a submission, reasonable workplace behaviour and reasonable management action, would cede to a person’s feelings of being anxious or uncomfortable.

[80] The facts and evidence, in this application, emphasise and reinforce that important distinction Parliament recognised between reasonable workplace conduct and a person having a self-belief or feelings of discomfort. Such self-belief or feelings does not automatically transform into bullying. Finally, I find, as Mrs Gore conceded, there was no risk to her health and safety by returning to work.

[81] The application is dismissed.

COMMISSIONER

Appearances:

M Gore on her own behalf.

A Evans on her own behalf.

K Chadwick on her own behalf.

N Evans on his own behalf.

Hearing details:

2016:

Halls Creek,

19 April 2016.

<Price code C, PR579373>

 1   Exhibit A1

 2   Exhibit A2

 3   Exhibit A7

 4   Exhibit A7

 5   Exhibit A7

 6   Exhibit R2

 7   Exhibit R2

 8   Exhibit A8 and R3

 9   Exhibit A8

 10   Exhibit R3

 11   Exhibit A8

 12   Exhibit R3

 13   Exhibit R3

 14   Exhibit R3

 15   Exhibit R3

 16   Exhibit A8

 17   Exhibit R3

 18   Exhibit A4

 19   Exhibit A4

 20   Exhibit A4

 21   Exhibit A4

 22   Exhibit R1

 23   Exhibit A5

 24   Exhibit A5

 25   Exhibit A5

 26   Exhibit A5

 27   Exhibit R1

 28   Exhibit A8

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