Ms Rachael Roberts v View Launceston Pty Ltd as trustee for the View Launceston Unit Trust T/A View Launceston

[2015] FWC 7244

[2015] FWC 7244

FAIR WORK COMMISSION

DECISION

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

Ms Rachael Roberts
v
VIEW Launceston Pty Ltd as trustee for the VIEW Launceston Unit Trust T/A View Launceston; Ms Lisa Bird; Mr James Bird
(AB2015/160)

Real estate industry
DEPUTY PRESIDENT WELLS	HOBART, 23 OCTOBER 2015

Application for an FWC order to stop bullying.

[1] On 23 September 2015 I delivered a decision ([2015] FWC 6556) (the decision) which held at [121]:

[121] I am satisfied the behaviour carried out by Mrs Bird fulfils the prerequisite criteria of s.789FD of the Act and therefore constitutes bullying at work of Ms Roberts.

[2] In the decision is also found there was a risk of Ms Roberts continuing to be bullied at work. Accordingly, I stated at [123]:

[123] I am therefore able, pursuant to s.789FF to make an order to stop the bullying at work of Ms Roberts. Due to the nature of the small workplace and a lack of submissions by the respondent as to the form any order should take, I will list the matter for a conference between the parties to discuss the order.

[3] A notice of listing was issued to the parties on 2 October 2015 for a conference to take place on Wednesday 14 October 2015 in Launceston. Subsequent to this listing and on 7 October 2015, the Respondents made a written application for me to recuse myself from further dealing with the matter, on the basis of apprehended bias. The conference listed for 14 October 2015 was reconstituted as a hearing for the recusal application. The parties were also advised to be ready to proceed with their submissions as to the form any stop bullying order should take, pending the outcome of the recusal application.

[4] Ms Roberts continued to represent herself and Mr Damien Durkin continued as advocate for the Respondents. Following oral submissions from the parties at the hearing on 14 October 2015 in relation to the recusal application, I delivered an ex tempore decision which dismissed the Respondents’ application for me to recuse myself. The parties were then directed to address me in relation to the content of a stop bullying order. These are my reasons for decision on remedy, that is, a stop bullying order, and should be read in conjunction with my reasons contained in [2015] FWC 6556.

[5] The relevant section of the Fair Work Act 2009 (the Act) dealing with the remedy of an application for a stop bullying order s.789FF and provides:

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.

Submissions

[6] Both parties made submissions in relation to the form the stop bullying order should take.

[7] Ms Roberts advances that the stop bullying order should include that no staff member denigrate her to another person, that Mrs Bird be required to say “good morning” to her and that her work be carried out in a timely manner by Mrs Bird. Further, Ms Roberts asks that as Mrs Bird does not supervise her, that Mrs Bird be ordered not to discipline her and that she not be left in a one-on-one situation with Mrs Bird. Ms Roberts also requests that Ms Bird not speak or act in an aggressive or abrupt way toward her, no make attempts to damage her reputation or credibility to Ms Roberts clients and that Mr Bird and Mr Claxton refrain from swearing and making crude offensive jokes in her presence.

[8] Ms Roberts raises the issue of publication of the order and reasons for decision as a way of clarifying the matters which were in dispute and to assist in re-establishing what she says is damage to her reputation due to incorrect media reporting on this matter. She seeks an order to the final order to stop bullying be published in the Real Estate Institute of Tasmania periodic publication.

[9] Finally, Ms Roberts submits that she be allowed to work from home, only attending the office when required for meetings and to collect and return keys for properties. Ms Roberts states there is no personal or professional bar in relation to real estate agents working from home and that such a request should be looked on favourably. It is said that Mrs Bird leaves the office at 3.30pm each day and is not present in the office at all on Saturdays and Sundays, which are the busiest days of the week for the business. Ms Roberts said she could arrange to meet clients at times most likely when Mrs Bird was not in the office.

[10] Ms Roberts states that she has been seven months without an income; that any workers compensation payments she received were all self-funded out of the real estate commissions she was due; and that any savings she had were now gone. Ms Roberts is keen to return to work quickly with an order in place.

[11] Mr Durkin submits that there is willingness on the part of the Respondents for Ms Roberts to return to the workplace and that mediation should form part of a transition back to work, and that an independent third party mediator be engaged to conduct mediation between Ms Roberts and Mr and Mrs Bird. Mr Durkin also suggests that Mr Allan Hart be the return to work contact for Ms Roberts for a period of a couple of months so that any matters that arise in the workplace can be dealt with by a person other than Mr Bird.

[12] Mr Durkin submits that there was originally an offer to Ms Roberts, following the first conciliation conference held in the matter, to work from home. However the offer was withdrawn, although Mr Durkin was vague as to why that offer had been withdrawn. Mr Durkin submits that any order in relation to Ms Roberts and Mrs Bird not being in the office together alone is impractical due to the small size of the office.

[13] At the hearing, Mr Durkin stated there was no objection to re-vising the issue of Ms Roberts working from home. 1

[14] Final written submissions from Ms Roberts lodged with the Commission on Friday 16 October 2015 indicate she has not been provided a copy of View Launceston’s anti-bullying policy despite having requested it; stating that all she had been provided with was a copy of the old staff member handbook. The respondents did not produce a copy of this policy at the substantive hearing in July 2015, although it was mentioned in the respondents’ closing submissions. Ms Roberts also submits that despite having tried to contact Mr Hart after the hearing on 14 October, to discuss working from home, Mr Hart had not responded to her contact.

[15] On Friday 16 October 2015 at 5.00pm Mr Durkin advised via email “Please advise DP Wells that we offer no submission in relation to Orders, contrary to my last email.” The Respondents did, however, respond to Ms Roberts’ final written submissions when provided with an opportunity to do so by this Commission. These submissions were received on Tuesday 20 October 2015 and provided a copy of View Australia Pty Ltd’s “View Tasmania New staff member Familiarisation Manual” (the staff manual). This manual provides, at pages 23 to 26 a definition on workplace bullying and sexual harassment. It itemises actions that are not considered workplace harassment, the effects of bullying or harassment on people and the company and proposed strategies to eliminate bullying and harassment. Relevantly at page 26 the manual states:

VIEW Australia Strategies to Eliminate Bullying and Harassment

VIEW Australia will take the following actions to prevent and control exposure to the risk of workplace bullying or harassment:

● provide all staff members with workplace bullying and harassment awareness training,
● develop a code of conduct for staff members to follow,
● introduce a complain handling system and inform all staff members on how to make a complaint, the support systems available, options for resolving grievances and the appeals process, and
● regularly review the workplace bullying and harassment prevention policy, complain handling system and training.

[16] The Respondents submit that a working from home arrangement is unworkable, but that Ms Hart supported a proposition that he “maintain a watching brief on Rachael’s return to work…”. 2 However Mr Hart advised he would not undertake a supervisory role for Ms Roberts’ employment, as that was the responsibility of the office manager, namely Mr James Bird. The Respondents strenuously rejected the submission of Ms Roberts that any order to stop bullying be published by either party or be provided to the media for publication.

Order to stop bullying

[17] There was nothing put to me by either party at the substantive hearing or the hearing on 14 October 2015 that indicates any investigation having taken place on the matters which form part of this application. Further there was nothing put to me by the Respondents as to a particular procedure available to Ms Roberts to resolve grievances or disputes, with the exception of their intent to introduce a complain handling system, which was recorded in the staff manual. Accordingly, I find ss.789FF(2)(a), (b) and (c) are not relevant to my considerations in this matter.

[18] Whilst I will not be ordering that a mediation take place between the parties, I make the strong recommendation that the Respondent engage an accredited mediator, who is independent to the parties, to conduct a mediation and that Ms Roberts and Mr and Mrs Bird participate in that mediation. I am of the view, approached in the correct context, mediation may be of assistance to the parties in re-establishing the employment relationship.

[19] I do not consider the working from home proposition as put forward by Ms Roberts is appropriate in the circumstances. Evidence at the substantive hearing in July 2015 was that Ms Roberts’ doctor had cleared her for a return to the workplace on the condition that anti-bullying orders were in place to facilitate her return. Ms Roberts’s submissions that she is capable of acting professionally and expects that others would be able to do the same are at the heart of re-establishing the employment relationship. 3 Accordingly, I do not consider that issuing an order for Ms Roberts to work from home is necessary.

[20] I am not satisfied that the content of the staff manual as it relates to workplace bullying, as provided by the Respondents in their further written submissions on 20 October 2015, provides an appropriate anti-bullying policy or procedure. Therefore I propose to issue orders dealing with the introduction by the Respondents of a stand-alone anti-bullying policy and procedure, together with a staff education programme on that new policy and procedure.

[21] Having regard for my reasons in the decision, the oral submissions of the parties, the written submissions of Ms Roberts and the Respondents following the further hearing, and the considerations contained in s.789FF(2)(d) I have concluded it is appropriate to make an order to stop bullying which:

● provides a process for re-establishing the employment relationship between Ms Roberts and her employer;
● addresses the behaviours of Mrs Bird, on which I have made findings previously in the decision at paragraphs [100], [103], [104], [109], [111], [112], [113], [115], [117] and [118];
● ensures a formal policy and process are in place to deal with any future incidences of bullying behaviour in the workplace; and
● addresses the education of all employees within the workplace of View Launceston as to appropriate standards of behaviour and any policy and process in place.

[22] Whilst I have made a recommendation that mediation occur between Ms Roberts, Mr Bird and Mrs Bird, I do not consider this to be mandatory for Ms Roberts’ return to work.

[23] The Order PR573139 giving effect to this decision and the previous decision in this matter has been issued separately.

DEPUTY PRESIDENT

Appearances:

Ms R Roberts, the Applicant

Mr D Durkin, for the Respondents

Date and place of hearing:

2015

14 October

Launceston

Further written submissions:

2015

16 October (Applicant)

20 October (Respondent)

 1   Transcript PN206

 2   Respondent’s final written submissions

 3   Transcript PN184

Printed by authority of the Commonwealth Government Printer

<Price code C, PR573140>