Ms Nadia Page

[2015] FWC 5955

[2015] FWC 5955

FAIR WORK COMMISSION

DECISION

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

Ms Nadia Page
(AB2015/235)

COMMISSIONER CLOGHAN PERTH, 9 SEPTEMBER 2015

Application for an FWC order to stop bullying.

[1] This is an application by Ms Nadia Page (Ms Page or Applicant) to the Fair Work Commission (Commission) for an order to stop bullying.

[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] Ms Page’s application is for an order against Ms Teo Latham (Ms Latham), Fremantle Markets stall owner and employee of Serakent Pty Ltd T/A Crystal Palace and Mr Tjaart Van Der Walt (Mr Van Der Walt), caretaker for Fremantle Markets and employee of Orbit Commercial Services Pty Ltd.

[4] The matter was unable to be resolved at mediation and conciliation, and accordingly, referred to a hearing.

[5] At the hearing, Ms Page represented herself and gave evidence on her own behalf. In addition, the following gave evidence for Ms Page:

• Ms S Dharma-Trumps;



• Ms K A Gray;



• Mr K I Miles; and



• Ms N Strickland.

[6] Ms Latham was represented by her husband. Ms Latham gave evidence on her own behalf.

[7] Mr Van Der Walt represented himself and gave evidence on his own behalf.

[8] This is my decision and reasons for decision on Ms Page’s application.

LEGISLATIVE FRAMEWORK

[9] Section 789FD of the FW Act relevantly provides:

“(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) ...”

[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) ...”

RELEVANT BACKGROUND

[11] Ms Page is an employee of Corrynnes Natural Soap, a market stall within Fremantle Markets.

[12] Ms Latham is an employee and owner of “Crystal Palace”, another market stall within the Fremantle Markets.

[13] Mr Van Der Walt is an employee of Orbit Commercial Services which is contracted to Fremantle Markets for cleaning services.

CONSIDERATION

Mr Van Der Walt

[14] Ms Page alleges that on 29 March 2015 at about 6:00 pm, Mr Van Der Walt approached her after leaving Ms Latham’s stall and said, “I’m going to kill you, I’m going to kill you”. Ms Page responded with the words, “that’s disgusting, what are you talking about?” In reply, it is alleged that Mr Van Der Walt said, “I’m sick of you and your soap crumbs” and walked away”. 1

[15] Later as Ms Page was leaving the Fremantle Markets, she approached Mr Van Der Walt and said to him, “why did you say you are going to kill me?” Mr Van Der Walt is alleged to have responded, “whatever, whatever” and walked away.

[16] Ms Gray was not present at the first exchange but was with Ms Page during the second incident and corroborated the second exchange of words between Ms Page and Mr Van Der Walt. 2

[17] Mr Van Der Walt denied he said to Ms Page that he was going to kill her. Mr Van Der Walt agrees that he approached Ms Page and asked her not to put soap scraps on the floor because he finds, as a cleaner, they are difficult to remove. Mr Van Der Walt agrees that Ms Page made a comment as he was leaving the Market but he did not hear it, however, he agrees he said “whatever”. 3

[18] In oral evidence, Ms Page submits that she really doesn’t know Mr Van Der Walt 4 and hardly ever sees him5. Despite her written evidence, Ms Page does not recall, in oral evidence, Mr Van Der Walt making a comment about soap scraps on the floor6. Further, Ms Page gave evidence that there are no soap scraps on the floor7 and, since that time, Ms Page has had no contact with Mr Van Der Walt.8

[19] Ms Page conceded that her interaction with Mr Van Der Walt was a “one off” 9. Further, Mr Van Der Walt’s comments were unexpected and unusual10. Finally, that she had no reason to believe that previous interactions between them would result in Mr Van Der Walt making such comments11.

[20] I am satisfied, on the evidence, that, even if Mr Van Der Walt made the comment alleged by Ms Page, he did not repeatedly behave unreasonably towards Ms Page as required pursuant to paragraph 789FD(1)(a) of the FW Act.

[21] On Ms Page’s own evidence, the interaction with Mr Van Der Walt was a one off and in the context of hardly even coming into contact with him.

[22] A worker, pursuant to paragraph 789FD is bulled at work, only if an individual, in this case, Mr Van Der Walt, repeatedly behaves unreasonably towards another worker - Ms Page.

[23] In coming to this conclusion, the Commission is not condoning Mr Van Der Walt’s comments to Ms Page, if they were made. Clearly, if the comments were made, they were unusual, unexpected and without any foundation.

[24] Further, such a statement as “I am going to kill you”, if made, is clearly intended to create a risk to a person’s health and safety.

[25] For the reasons above, it is not necessary to find conclusively whether the statements alleged to have been made by Mr Van Der Walt occurred. Even if they occurred, such comments were not repeated to meet the definition of a worker being “bullied at work”.

Ms Latham

[26] Both Ms Latham and Ms Page can be described as mature adults.

[27] Both work next to each other in the Fremantle Markets.

[28] Ms Page described Ms Latham as a “friend” and “neighbour”. 12 Ms Latham took issue, in cross examination, with Ms Page’s characterisation of Ms Latham as a “friend”. If it was a friendship, it ran out of steam some time ago.

[29] Ms Page’s first demonstration of alleged bullying occurred in May 2012, when allegedly Ms Latham asked Ms Page to open up a letter addressed to her employer regarding rent for the stall. Ms Page gave written and oral evidence that, after she left her stall, Ms Latham “took the letter without permission and subsequently returned it by leaving it between products at the back of the shop”. 13

[30] Ms Page concedes that she did not see Ms Latham take the letter 14 and to her knowledge, no other person saw her take the letter15. Similarly, neither Ms Page nor any other person saw Ms Latham return the envelope16. Ms Page came to the conclusion that Ms Latham took and returned the letter, because “we were the only two there”.17

[31] Ms Latham denies both in her written statement and in oral evidence, that she took the letter 18.

[32] Between May 2012 and November 2012, Ms Page asserts that Ms Latham “often stared at me with a hostile look” 19. Ms Latham’s written response is that she neither agrees nor disagrees with the statement20.

[33] It is not in dispute that Ms Latham stopped responding to Ms Page’s “hellos” or “good mornings”.

[34] An incident occurred on 3 November 2012 which again is in dispute by both parties.

[35] The next event between both parties is alleged to have occurred on 28 February 2015 when it is alleged that Ms Latham told Ms Page to “get fucked” 21. Ms Latham denies this happened22.

[36] After not speaking to each other since May 2012, this comment by Ms Latham appears to be a surprising way to recommence engagement with each other. However, my observation of the parties in proceedings was that, they were not tolerant of each other.

[37] Ms Latham’s evidence is that she has stayed away from Ms Page since 2012 and has not spoken to her 23.

[38] The next demonstration of bullying, according to Ms Page, is when her employer advised her that Ms Latham would be receiving a formal warning letter about her behaviour. Further, “after 19 March 2015, Teo Latham has told other stall traders false stories about what was happening between Teo Latham and I” 24. In addition, Ms Latham approached other stall holders who subsequently point and laugh at Ms Page. Finally, Ms Page alleges that Ms Latham continues to stare at her with a hostile look25.

[39] With the exception of staring at Ms Page with a hostile look, Ms Latham disagrees with the inferences being drawn regarding her discussions with other stall holders 26.

[40] Having dealt with the disputed facts, I now turn to the submissions of both parties.

[41] Ms Latham states:

“1 I started work in Fremantle markets in September 2008 and had a cordial relationship with Nadia Page when she began working in Corrynne’s soap shop in 2010.

2 Gradually I began to hear from other traders and market workers that Nadia was gossiping and attempting to stir up trouble for me. I ignored it at first, but in late 2012 I had had enough and told Nadia to mind her own business and stay away from me.

3 I have not spoken to her or have had anything to do with her since that time.

4 On Friday 17^th April, David Latham and myself were approached at our shop by Nadia’s employer, Corrynne Keatley. She apologised to both of us and said that she had advised Nadia not to go ahead with this and that Nadia had made complaints against “multiple people”. She added that she was bound by a duty of care to her employee, Nadia.

5 It is physically impossible for Nadia and myself to see one another when we are working (refer to photographic evidence).” 27

[42] Ms Page submits:

“ Intervention from fremantle market management to respond quicker to threats.
…

• To keep her [Ms Latham] distance as faraway from me and her stall being shifted to another spot in the markets further away.



• I would consider getting a restraining order so that I can do my job and not feel intimidated by Teo Latham.” 28

[43] I want to conclude my consideration with the observation that Ms Page commenced employment in 2010 at the Fremantle Markets and Ms Latham in September 2008.

[44] Bullying can manifest itself in many ways. I consider it uncontroversial to say that spreading misinformation or ill-will against others as bullying.

[45] It appears that a decision was made by Ms Latham some years ago to terminate any cordial or neighbourly relationship she had with Ms Page. Ms Page may have been disappointed with that outcome. However, it is not the role of the Commission to make judgement on Ms Latham’s decision – it is a decision Ms Latham has made and cannot be criticised for doing so.

[46] For over two years, there was no contact between the parties, or if so, it did not activate matters of significance. It appears to have been an arrangement that suited both parties.

[47] However, animosity between the parties appears to have arisen again in February 2015. While telling a person to “get fucked” seems an excessive way to express one’s feelings about a relationship which had been dormant for over two years, I have disputed evidence as to whether it occurred. Each party gave their respective evidence with conviction.

[48] Ms Page’s witnesses gave evidence but it is difficult to avoid the conclusion that, with the exception of Ms Gray, they did not like Ms Latham. Their evidence is not determinative of the issue for my determination.

[49] Ms Page’s challenge is to recognise and accept the fact that Ms Latham no longer wants to respond to her “hellos” or “good mornings”. Ms Latham has set the boundary for her relationship with Ms Page and it is one of non-commitment. Trying to reformulate the relationship into anything else, in my view, would be a waste of time and effort by Ms Page.

[50] Having set the boundary, Ms Latham’s challenge is to leave it at that. While I am not concluding that she did or did not tell Ms Page to “get fucked”, if she does engage in such conduct, it departs from normal social interaction in the workplace and fall within the definition of bullying if repetitive. Such conduct is a clear sign that Ms Latham is pursuing an interaction well beyond just wanting to be left alone. This also goes for criticism/gossip with other stall holders at Fremantle Markets. Scurrilous denigration of a worker in the workplace would certainly fall within the boundary of bullying.

[51] In conclusion, I turn to two matters. Ms Latham concedes that she stares at Ms Page with a hostile look. If, as Ms Latham states she wants to be left alone, I suggest she desist from such a practice. Ms Latham should get on with running the business.

[52] Finally, it appears that the enmity between both parties is well known to the management of Fremantle Markets.

[53] Hugh Mackay once described work as “occupational therapy”. I suggest that the management of Fremantle Markets consider, and implement, some therapeutic policies to assist in their expectations of how workers on stalls relate to each other in the Market.

CONCLUSION

[54] For the reasons set out above, it would be inappropriate to make an order pursuant to s.789FF(1) of the FW Act. However, I trust my observations above will assist in resolving matters between Ms Page and Ms Latham at Fremantle Markets.

COMMISSIONER

Appearances:

N Page, on her own behalf.

D Latham, on behalf of T Latham.

T Van Der Walt, on his own behalf.

Hearing details:

2015:

Perth,

24 August.

 1   Exhibit A2

 2   Exhibit A5

 3   Exhibit VDW1

 4   Transcript PN171

 5   Transcript PN171

 6   Transcript PN174

 7   Transcript PN177

 8   Transcript PN179

 9   Transcript PN180

 10   Transcript PN183

 11   Transcript PN185

 12   Transcript PN107

 13   Exhibit A2

 14   Transcript PN97

 15   Transcript PN98

 16   Transcript PN101 and PN102

 17   Transcript PN100

 18   Exhibit TL3

 19   Exhibit A2 (4)

 20   TL3 (4)

 21   Exhibit A2 (7)

 22   Exhibit TL3 (7) and Transcript PN518

 23   Transcript PN524 and PN525

 24   Exhibit A2 (9)

 25   Exhibit A2

 26   Exhibit TL3 (9) and (10)

 27   Exhibit TL2

 28   Exhibit A1

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