Ms Rajashree Datta
[2019] FWC 7287
•4 NOVEMBER 2019
| [2019] FWC 7287 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Ms Rajashree Datta
(AB2019/370)
DEPUTY PRESIDENT MASSON | MELBOURNE, 4 NOVEMBER 2019 |
Application for an FWC order to stop bullying – applicant alleges colleague engaged in repeated unreasonable behaviour - no basis to make order – application dismissed.
Introduction
[1] Ms Datta Rajashree (the Applicant) made an application for orders to stop bullying pursuant to s 789FC of the Fair Work Act 2009 (the Act) on 9 July 2019 (the Application). The Applicant alleges that she has been bullied at work during her employment with Austico Apparel Pty Ltd (Austico) by Mr Shane Tronerud (Mr Tronerud) who is a work colleague.
[2] The Applicant alleges in her Form F72 application, that she has been exposed to ‘verbal and physical aggression’ by Mr Tronerud over several years. The alleged bullying conduct may be summarised as follows:
(1) Applicant alleges that; Mr Tronerud asked her out on a date a few times when she first commenced employment with Austico in 2012 and that since her marriage broke down more recently, following which she commenced a new relationship in March 2019, Mr Tronerud has become very rude and unnecessarily aggressive towards her. (Allegation 1 – Date request)
(2) Mr Tronerud is alleged to have smashed a phone in front of the Applicant in the office in response to delays to a project that he and the Applicant were working on. (Allegation 2 – Phone throwing incident)
(3) Mr Tronerud is alleged to have sent the Applicant sarcastic and offensive emails. (Allegation 3 – Email communication)
(4) Mr Tronerud is alleged to have accused the Applicant in an aggressive manner of poor record keeping during an exchange on 8 July 2019. (Allegation 4 - 8 July 2019 Exchange)
[3] A conference of the parties was conducted before the Fair Work Commission (the Commission) on 5 August 2019 during which agreement was reached between the parties on a basis for the resolution of the matter. That agreement was reflected in a Statement subsequently issued by the Commission on 7 August 2019 and relevantly provided for the following in relation to the working arrangements to be implemented between the Applicant and Mr Tronerud;
“The following records the agreed outcome from the conference:
1. That all future email communication exchanged between Ms Datta and Ms Tronerud will be copied to Mr Turnbull.
2. That Ms Datta and Ms Tronerud will avoid telephone communication between each other.
3. Any face to face meetings/discussions between Ms Datta and Mr Tronerud will be held with a 3rd party present during such meetings/discussions.
4. Should any concerns arise in relation to the implementation of the above arrangements either Ms Datta or Mr Tronerud should raise their concerns with Mr Turnbull.” 1
[4] The Applicant contacted my chambers on 7 August 2019 and advised that notwithstanding the agreed outcome of the conference on 5 August 2019, she did not regard the matter as resolved and pressed for her application to be dealt with by way of formal determination. Directions were subsequently issued for the filing of submissions and materials and the matter was set down for a hearing on 17 & 18 October 2019.
[5] At the hearing, the Applicant was represented by Mr Uttio Chakraborty who is a friend of the Applicant. The Applicant gave sworn evidence in the matter. Mr Tronerud appeared on his own behalf and gave sworn evidence. Mr Nicholas Turnbull who is the Director of Austico appeared for Austico, gave sworn evidence himself and called the following witnesses, each of whom are currently employed by Austico and work with the Applicant and Mr Tronerud;
• Ms Sarah Bologna
• Ms Kelli Palmieri
• Ms Jay Gunawardena
• Mr Paul Galbraith
Background and Evidence
[6] Before turning to consider the evidence regarding the specific allegations made by the Applicant regarding Mr Tronerud’s conduct, it is useful to provide some background evidence as follows.
[7] Austico is a small family owned business located in Collingwood, Victoria that employees approximately 20 staff and imports clothing from China and Europe which it sells to menswear stores around Australia and to its major client David Jones. It also does some corporate work which involves bespoke design and manufacture of products for clients. 2 According to its Director Mr Turnbull the average length of services of its employees is 13.5 years.
[8] The Applicant has been employed by Austico since 2012. Her role requires her to source, order and arrange shipment of products for Austico from various suppliers in multiple countries. In that role she is required to work closely with Mr Tronerud who is in a sales role and is responsible for sourcing corporate clients in the Australian market, establishing relationships and selling bespoke products to particular clients. 3 Mr Tronerud has worked for Austico since 2009 and due to the nature of their roles has worked closely with the Applicant since her commencement with Austico in 2012.
[9] The Applicant states that for much of her employment with Austico she had a good working relationship with Mr Tronerud. The Applicant referred to her willingness to draw a picture on a whiteboard in the office in 2016 which depicted her as a cobra ready to strike Mr Tronerud who was portrayed as a mouse that would readily run off for support to Mr Turnbull.4 She acknowledged that the drawing revealed the good working relationship she had at the time with Mr Tronerud.5
[10] The Applicant acknowledged in her evidence that the nickname of ‘cobra’, which she was given to her by Mr Tronerud, reflected her style and stated that like her colleague Ms Gunawardena, who was similarly nicknamed the ‘taipan’ by Mr Tronerud, she was direct, clear and assertive. She also accepted that she was demanding in her approach to suppliers. 6
[11] Mr Tronerud confirmed that most of his work interaction was with the Applicant because of the nature of his and the Applicant’s roles. He states that he had attempted to maintain a positive relationship with the Applicant over the period he had worked with her however this had been stressful because of her style. Nonetheless he states that overall he had got on well with the Applicant. 7
[12] Mr Tronerud identified a point at which he felt the relationship between he and the Applicant changed. According to Mr Tronerud the change in his relationship with the Applicant arose out of a conversation between himself and the Applicant in mid-2019, during which the Applicant told him that he needed to ‘get out of the 1920s and upskill’. Mr Tronerud further states that the Applicant said to him that nobody within Austico liked him and that they only laughed at his jokes because he was the ‘bosses mate’. 8 He acknowledged that he resolved at that point to not accept what he described as her ‘rubbish emails’ and ‘aggression’ anymore, and adopted a more distant working relationship with the Applicant. While denying that he was aggressive in his subsequent dealings with the Applicant, he concedes that he mirrored the tone of the Applicants emails in his replies which could be sarcastic.9
[13] As regards the whiteboard drawing, Mr Tronerud states that he bestowed the nickname of ‘cobra’ on the Applicant to reflect the nature of her style. He also confirmed that when Ms Gunawardena started, he similarly nicknamed her the ‘taipan’ because of her tough approach to managing the money in her role as the business accountant. According to Mr Tronerud the according of nicknames reflected his sense of humour, neither the Applicant or Ms Gunawardena raised any concerns, and both appeared to embrace the nicknames. 10
[14] Evidence was also provided by other witnesses as to the general nature of the working relationship observed to exist between the Applicant and Mr Tronerud which may be shortly summarised as follows;
• In the working relationship between the Applicant and Mr Tronerud, Mr Turnbull and Ms Bologna state that the Applicant had until recently played a more dominant role with Mr Tronerud adopting a more submissive and compliant role. 11
• The working relationship between the Applicant and Mr Tronerud had appeared to Ms Palmeiri, Ms Bologna and Ms Gunawardena to have been an amicable one over several years. Both the Applicant and Mr Tronerud were seen to frequently share friendly conversations and jokes. 12
• The Applicant adopted a dominant role more generally in her dealings with other staff and with suppliers with whom she dealt with. 13
• It was acknowledged that professional disagreements arose between the Applicant and Mr Tronerud from time to time, but these were amicably resolved between them or with Mr Turnbull’s assistance. 14
[15] I now turn to the evidence in relation to the Applicant’s specific allegations.
Allegation 1 – Date request
[16] The Applicant states that shortly after she commenced her employment with Austico in 2013, Mr Tronerud showed some fondness towards her and asked her out for lunch which she declined. She also states that Mr Tronerud offered her some gifts which she also declined to accept. 15 She acknowledged that there were no witnesses to the requests for a date nor were there any emails or other records. She states that the requests were made by Mr Tronerud at his desk which is geographically separate from other staff.16
[17] Mr Tronerud states that he has no recollection of ever asking the Applicant out 17 and that he has no interest in developing a relationship with someone he works with.18 He further states that the only time he ever offered the Applicant a gift was when Austico secured a large contract with the Australian Army. That contract was financially beneficial for Mr Tronerud because of the commission basis on which he is engaged, which led him to want to recognise the Applicant and another employee’s support by buying them a bottle of champagne. Mr Tronerud confirmed that the Applicant declined the gift.19
[18] As regards the alleged feelings he held for the Applicant Mr Tronerud strenuously denied that he had ever harboured romantic feelings for her. He also gave evidence that he had never put himself in a position whereby he would socialise with the Applicant. 20 He also states that when the Applicant disclosed to him that she was getting divorced in early 2019 he responded sympathetically and moved on.21
[19] The Applicant claims in her application that her separation and divorce in 2019 followed by her starting a new relationship provoked aggressive and rude behaviour towards her by Mr Tronerud which she attributed to his ongoing feelings for her. Mr Tronerud flatly denied this and states that any change in his relationship with the Applicant was attributable to his being unwilling to tolerate the Applicant’s treatment of him over several years.
[20] Ms Palmeiri, Ms Bologna and Ms Gunawardena each confirmed in their evidence that at no stage had they observed Mr Tronerud ask the Applicant out for a date or pursue a romantic relationship with her. 22
Allegation 2 – Phone throwing incident
[21] The Applicant states that the phone throwing incident occurred during 2018 and arose from a conversation at her desk between herself and Mr Tronerud regarding a project for Rialto. Unhappy with the artwork that had come back from a supplier Mr Tronerud threw his phone down in anger on the floor in the vicinity of the Applicant and other staff in the office. The Applicant states she and other staff were quite stunned by the incident and that one of her colleagues (Kate) immediately got up and reported the incident to Mr Turnbull. 23
[22] Mr Tronerud confirmed the incident occurred. It arose according to Mr Tronerud from his frustration with his mistake in not checking the artwork for a product prepared by another staff member before it (the artwork) was sent to the supplier. The project was for a large corporate customer and there was a tight time frame for delivery. Mr Tronerud states that the incident, which he acknowledged was wrong, 24 was not directed at the Applicant or any other staff member but was due to his frustration with himself. He further states that he immediately apologised to the Applicant if his behaviour had given her a fright. 25
[23] Mr Turnbull confirmed the incident occurred, that he spoke with Mr Tronerud at the time, that Mr Tronerud apologised to him for the incident and that a record of the meeting was made and retained. 26 Mr Turnbull further states that since the incident there had been no repeat of the behaviour by Mr Tronerud.
[24] Ms Gunawardena confirmed that the incident, to which she was also a witness, occurred on 11 April 2018 in the vicinity of her desk which is located approximately 3 metres from the Applicant’s desk in the open plan office. She states her belief that the incident, while constituting unacceptable behaviour, was not directed at the Applicant or any other staff member in the office at the time. 27
Allegation 3 - Email communication
[25] The Applicant alleges that Mr Tronerud has sent her various sarcastic and offensive emails which she claims constitutes bullying conduct. Several emails were adduced in evidence by the Applicant and are dealt with below.
[26] The Applicant refers in her evidence to an email chain between the Applicant and Mr Tronerud on 18 May 2018 titled ‘RMC Silk Tie’ 28, which concluded with Mr Tronerud saying ‘…I love you Raj’ in reply to the Applicant stating to Mr Tronerud in the preceding email ‘It is 8.5cm. Should have gone to Specsavers!’. According to the Applicant she interpreted the comment as Mr Tronerud showing continued fondness for her. She distinguished Mr Tronerud’s comment in his email to that of the language used by another work colleague, Mr Galbraith in an email to her dated 9 July 2019 titled ‘Venice Blush ties’29 where Mr Galbraith starts with ‘Good morning darling’. She states that Mr Galbraith’s language was banter whereas Mr Tronerud’s comment reveals a different motive, that of his continuing fondness for her.30
[27] Mr Tronerud rejected the motive attributed to him by the Applicant. He states that the email exchange was in relation to his understanding of the measurement for an order which was incorrect. His response of “I love you Raj’ was simply in response to the Applicant’s comment ‘should have gone to Specsavers’ and was office sarcasm. He likened the tenor of his response to an email sent from the Applicant to himself dated 20 July 2017 titled ‘URGENT!!REPLY NOW!! 31’ where the Applicant says ‘…Until one day when Craig, Darren and I bury you under the shed and the throw the knife in the Yarra’.32
[28] The next email to be considered is an email dated 6 September 2018 33 which was sent from Mr Tronerud to the Applicant and relevantly states to the Applicant; ‘…NZ has no snakes did you know that. You and Taipan might be in trouble.’ The Applicant referred to the email as evidence of Mr Tronerud’s use of the term ‘snakes’ in describing both herself and Ms Gunawardena who is nicknamed the taipan by Mr Tronerud. The Applicant was unable to explain during her evidence how the email could be viewed as bullying.34
[29] Mr Tronerud in referring to the email of 6 September 2018 states that the Applicant has selectively used one email in a longer email chain that contained friendly banter and communication between himself and the Applicant, regarding a planned trip to New Zealand by the Applicant. He states that he had offered her several suggestions as to things to see and do while she was in New Zealand. He rejected the suggestion that the email was anything other than friendly banter with the Applicant. 35
[30] The Applicant refers to a further email chain between herself and Mr Tronerud dated 1 May 2019, 36 in which she initially emails Mr Tronerud requesting that he keep his tone and language to a ‘professional level’ and states to him that she finds him to be ‘very rude and aggressive’. Mr Tronerud responds to the Applicant by stating ‘Please see my mate’ which is a reference to Mr Turnbull. The email chain concluded with the Applicant emailing Mr Turnbull to which he responded, ‘I tried ringing you, can you see me re this after lunch?’. The Applicant states that the reference to my ‘mate’ by Mr Tronerud was not a very nice thing to say to a work colleague, and that the initial email to Mr Tronerud was prompted by aggressive phone calls and conversations she had experienced with Mr Tronerud.37
[31] The Applicant refers to a further email she sent to Mr Tronerud on 19 June 2019 titled Order:ST4591L 38 in which she again raises with Mr Tronerud her belief that he is ‘quite aggressive’ in his tone both in emails and when interacting in person with her. She concludes in the email by saying to Mr Tronerud ‘Curb your aggression and communicate in a respectable manner’. Mr Tronerud states that he does not believe that his communication with the Applicant was aggressive and further states that he decided in mid-2019 that he would not put up with her ‘rubbish emails’, her aggression or the way she spoke to him.39
[32] The final relevant email chain in evidence was that between the Applicant and Mr Tronerud on 20 June 2019 40 titled ‘Illawarra Scarf’ which concludes with Mr Tronerud stating to the Applicant ‘I think that’s rubbish’. Mr Tronerud earlier in the email chain, in referring to an explanation provided by a supplier, says ‘He’s taking the piss’.
[33] The Applicant states that the tenor of the communication in the email from Mr Tronerud is offensive and bullying. 41 She believes it was directed at her as it was in response to her conveying a technical explanation from a supplier in relation to an order. Mr Tronerud states that the comment was not directed at the Applicant but was expressing his opinion as to the explanation provided by the supplier which he did not accept. The Applicant did accept during questioning of her during her evidence in relation to the email, that Mr Tronerud’s response in the email was probably because he did not accept the supplier’s explanation, but she still felt it was a rude way of expressing that view.42
Allegation 4 – 8 July 2019 Exchange
[34] The Applicant states that an exchange took place between her and Mr Tronerud on 8 July 2019 at her desk in relation to an issue with the records for a customer order. The Applicant states that during the exchange Mr Tronerud accused her of not maintaining proper records and started making attacks on her and was ‘whispering and murmuring’ into her ears. She further states that he said to her ‘you have misplaced it, your records are not good enough.’ 43
[35] The applicant provided an email received from a work colleague Mr Galbraith which she contends supports of her version of events. The email was dated 9 July 2019 and relevantly states as follows;
‘Good morning darling. Are you back today?
Sorry to hear what happened y’day with Bluey. Appppaauullllling behaviour from him.
………’ 44
[36] The Applicant submits that the email from Mr Galbraith in referring to ‘Bluey’ is a reference to Mr Tronerud, and that the email supports her evidence that Mr Tronerud’s conduct was aggressive and bullying.
[37] Mr Galbraith gave evidence in relation to the exchange that occurred on 8 July 2019. He states that he only heard a ‘snippet’ of the exchange between the Applicant and Mr Tronerud as he was passing through the open plan office from the showroom to the warehouse. He states that he was running through to the warehouse and while doing so heard Mr Tronerud asking the Applicant for a sample in a raised voice. 45
[38] Mr Galbraith stated in further evidence that in sending the email to the Applicant on 9 July 2019 he had overreacted and dramatized the nature of the exchange by characterising Mr Tronerud’s behaviour as appalling. He did this out of his desire to show empathy to the Applicant and maintain a good relationship with her. He further concedes that characterising the behaviour of Mr Tronerud as appalling was unfair to Mr Tronerud because he had only heard 3 seconds of what transpired in the exchange between the Applicant and Mr Tronerud. 46
[39] Mr Galbraith readily conceded during his evidence that he was ‘two faced’ in his dealings with both the Applicant and Mr Tronerud in relation to the matter by privately expressing support to both of them. 47 He recognises that the ‘two faced’ nature of his behaviour was exposed by the Applicant’s reliance on his email of 9 July 2019 and he was annoyed about this. He says that he has conveyed his disappointment to the Applicant for dragging him into the matter and apologised to Mr Tronerud for ‘playing both sides of the fence’.48
[40] Ms Bologna gave evidence that she also overheard part of the exchange between the Applicant and Mr Tronerud on 8 July 2019 when she was walking from the showroom back to her desk in the open plan office. She states that she heard the Applicant repeatedly saying to Mr Tronerud in a loud voice ‘I don’t have the samples’ to which Mr Tronerud was calmly responding with words to the effect ‘Well if you don’t have it then did you misplace it?’. At the conclusion of the exchange she states that the Applicant simply walked off. 49
[41] Mr Tronerud strenuously denied the Applicant’s allegations variously referred to in her written submissions that he had ‘whispered and murmured’ to her that her ‘days were numbered’ or that he wanted her sacked from Austico. He stated that he had in fact gone to Mr Turnbull to tell him that if this matter (the Applicant complaints) was getting too difficult to manage Mr Tronerud would move on.
Other matters
[42] The Applicant also provided an email chain between herself and Mr Galbraith dated 30 May 2019 50 in which Mr Galbraith made various comments in relation to Mr Tronerud. Mr Galbraith variously stated in the email to the Applicant, ‘Let’s hope he is on his meds!’ which was an apparent reference to Mr Tronerud. In an earlier email in the chain Mr Galbraith also stated ‘… (PS has bluey been in & is he ok or mental)’. The reference to ‘Bluey’ was a nickname Mr Tronerud was known by to his work colleagues. The Applicant submits that the various comments by Mr Galbraith in the email support her case that Mr Tronerud has engaged in bullying conduct.
[43] When cross-examined as to the 30 May 2019 email exchange with the Applicant Mr Galbraith described the comments as ‘a bit of banter, bit of a joke’ and that the comment regarding whether Mr Tronerud was ‘on his meds’ was not something he wouldn’t have said directly to Mr Tronerud as a joke. 51
[44] The Applicant also refers to a screenshot of a text message from a former employee of Austico named ‘Kate’ 52 in which ‘Kate’ refers to conduct of Mr Tronerud previously directed to her. The former employee ‘Kate’ who forwarded the text to the Applicant was not called to give evidence in relation to her comments about Mr Tronerud. Nor was evidence adduced from the Applicant as to the date the text message was received by her.
Legislation
[45] The legislative provisions dealing with applications for orders to stop bullying are contained in Part 6-4B of the Act. Section 789FC provides as follows:
“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.”
[46] Section 789FD of the FW Act defines when a worker is bullied at work 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
(iii) 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.”
[47] Section 789FF defines in the circumstances in which the Commission may make orders dealing with an individual that has been bullied at work:
“789FF 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
(1) 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.
Consideration
[48] It is evident from the statutory provisions that the Commission’s exercise of statutory power to issue anti-bullying orders requires the establishment of three pre-requisites, that being;
(1) A worker must have made an application under s. 789FC;
(2) The Commission must be satisfied that the applicant worker has been bullied at work by an individual or group of individuals; and
(3) The Commission must be satisfied that the applicant worker will continue to be bullied at work by an individual or group of individuals.
[49] In approaching the first pre-requisite, the task was considered by Hatcher VP in Amie Mac 53and in doing so he identified thatit was necessary to determine firstly whether the applicant was a worker as defined in s. 789FC(2). I respectfully adopt the Vice President’s reasoning. Subject to having found the applicant to be a worker as defined, it is then necessary to be satisfied that the applicant worker “reasonably believes he or she has been bullied at work.” In considering what constitutes a reasonable belief that would establish the necessary application standing the Vice President observed as follows;
“[79] An applicant under s.789FC must not only be a worker but must be one who “reasonably believes that he or she has been bullied at work”. The expression “reasonable belief” and similar expressions are utilised in a wide variety of contexts by the statutory and common law. It is clear from cases decided in those differing contexts that not only must the requisite belief be actually and genuinely be held by the relevant person, but in addition the belief must be reasonable in the sense that, objectively speaking, there must be something to support it or some other rational basis for the holding of the belief and it is not irrational or absurd. For example, in the context of the Federal Court rules concerning applications for preliminary discovery, which require the holding by the applicant of a reasonable belief that that there may be a right to obtain relief against another person not presently a party to a proceeding in the Court, it has been held that “there must be some tangible support that takes the existence of the alleged right beyond mere ‘belief’ or ‘assertion’ by the applicant” or that “there must be some evidence that inclines the mind towards the matter of fact in question”. In relation to a NSW statutory provision prohibiting legal practitioners from providing legal services on a claim or defence of a claim for damages unless the practitioner reasonably believed that the claim or defence had reasonable prospects of success, it has been held that the practitioner’s belief that there was material which justified proceeding will not be reasonable if it “unquestionably fell outside the range of views which could reasonably be entertained”. In relation to the concept of a “reasonable hypothesis”, it has been held that in order to be a reasonable one a hypothesis must be rationally based and possess some degree of acceptability or credibility, and must not be irrational, absurd or ridiculous. These examples all illuminate the way in which the Commission should approach the task of considering whether the applicant worker has the necessary reasonable belief such as to confer standing to make an application under s.789FC.
[80] It can be anticipated that in most cases it will not be in dispute that the applicant reasonably believes he or she has been bullied at work such as to permit the making of an application under s.789FC(1), and the Commission will be able to find without difficulty that the first prerequisite in s.789FF(1) is satisfied. I cannot identify any decided anti-bullying case to date in which the making of an application under s.789FC(1) was put in issue. However in this case the respondents have, in their Points of Defence, contended that Ms Mac’s belief that she had been bullied at work was not, objectively, reasonable, and accordingly her application was beyond the Commission’s jurisdiction. Accordingly it is necessary for me to give more detailed consideration to this issue. (footnotes omitted)” 54
[50] As regards consideration of the second pre-requisite, I am satisfied on review of the statutory provision and the relevant authorities that the task before me requires that I consider and establish the following;
• Whether the Applicant was “bullied at work”, that is within a constitutionally covered business,
• Whether the relevant behaviour complained of by the Applicant was engaged in by an “individual” or “group of individuals”;
• Whether the relevant behaviour has the character of repeated unreasonable behaviour;
• Whether the relevant behaviour creates a risk to the health and safety of the Applicant; and
• Whether the relevant behaviour constitutes reasonable management action carried out in a reasonable manner.
[51] It follows from the above that a necessary step is for me to make findings of fact in relation to the relevant behaviour alleged to have occurred in the present matter. A useful summary of the kind of behaviour that may fall into the category of repeated unreasonable behaviour that constitutes bullying was also detailed in Amie Mac. The Vice President said as follows;
“[99]……… During a longueur in the hearing, I attempted to draw up a list of the features at least some of which one might expect to find in a course of repeated unreasonable behaviour that constituted bullying at work. My list included the following: intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination……” 55
[52] I believe the Vice President’s summary to be a useful, though not exhaustive list of behaviours that may assist my task. I will turn shortly to a consideration of the relevant behaviour in the present matter.
[53] Finally, it is clear from the terms of s 789FF of the Act that, if I am satisfied that the Applicant has been bullied at work, the next step is for me to then determine whether there is a risk that the Applicant will continue to be bullied at work. In assessing that risk, I must be satisfied that the risk that the Applicant will continue to be bullied at work by an individual or group of individuals although not imminent, must be real, and not merely a conceptual or hypothetical risk.
Is the Applicant a worker that reasonably believes that she has been bullied at work?
[54] It was not disputed that the Applicant was a “worker” employed by a “constitutionally covered organisation” and that the alleged incidents occurred at “work”. Although I have ultimately found the substance of the application and allegations lack merit, there is nonetheless some foundation to the Applicant’s belief that; she has been bullied at work, that a risk of such conduct continuing exists and that the alleged conduct poses a risk to her health and safety. I am not persuaded that the basis on which the application was made by the Applicant was necessarily “irrational, absurd or ridiculous”. It follows from my conclusion that the Applicant has made an application under s. 789FC as required by s. 789FF(1)(a).
Has the Applicant been “bullied at work”?
[55] I turn now to consider whether the Applicant has been bullied at work as alleged. This requires me to consider whether Mr Tronerud has engaged in repeated unreasonable behaviour towards the Applicant, such as to create a risk to the Applicant’s health and safety. Given the number of alleged incidents it will be necessary for me to consider whether each of those incidents occurred, and if so whether such behaviour constituted repeated unreasonable behaviour towards the Applicant.
Allegation 1 – Date request
[56] The Applicant states that Mr Tronerud’s feelings towards her manifested in an invitation by Mr Tronerud to her to go out to lunch. This according to the Applicant occurred several years ago soon after she joined Austico. Mr Tronerud strenuously denies ever harbouring feelings for the Applicant and has no recollection of such an invitation.
[57] There is no independent evidence of an invitation to lunch having been made nor is there any independent evidence that supports the Applicant’s allegation that Mr Tronerud has held and/or maintains such feelings for her. The fact that Mr Tronerud has never put himself in a position where he could socialise with the Applicant lends some weight to his denials of any personal interest in the Applicant other than on a professional basis.
[58] I am not satisfied on the material before me that Mr Tronerud has sought to establish a relationship with the Applicant or that her alleged rejection of his overtures have provoked ongoing issues of aggression. In fact, the Applicant’s own evidence is that for most of her period of employment with Austico she enjoyed a good working relationship with Mr Tronerud.
[59] As regards the allegation that Mr Tronerud has more recently become aggressive following the Applicant’s disclosure of her marriage separation and a new relationship, I will deal with that below when dealing with allegation 3.
Allegation 2 – Phone throwing incident
[60] There is no contest that the incident of Mr Tronerud throwing his phone in the office occurred on 11 April 2018. Furthermore, Mr Tronerud readily accepts that the conduct was unacceptable. He was counselled at the time by Mr Turnbull and has not repeated the behaviour since.
[61] Ms Datta’s reliance on the incident as evidence of bullying is in my view misconceived. While she and her work colleagues were impacted by Mr Tronerud’s display of frustration, the admitted show of frustration by Mr Tronerud was on his evidence with respect to his own mistake and not the actions of the Applicant or other work colleagues.
[62] Ms Gunawardena’s evidence supports Mr Tronerud’s version, which I accept, that his actions were not directed at the Applicant or other colleagues. That he was counselled over the incident by Mr Turnbull was entirely appropriate. The behaviour was clearly unacceptable, for which he apologised to Mr Turnbull.
[63] The behaviour of Mr Tronerud in throwing his phone on the floor of the office was unprofessional and unacceptable but was not directed at the Applicant or her colleagues. I find that Mr Tronerud’s conduct in throwing his phone on the office floor on 11 April 2018 does constitute unreasonable behaviour directed towards the Applicant.
Allegation 3 - Email communication
[64] The Applicant makes general allegations of aggressive behaviour in her emails to Mr Tronerud on 1 May and 19 June 2019. This indicates concern on her part as to the way Mr Tronerud was engaging with her. There is however an absence of any specificity in those emails or in the Applicant’s evidence as to what events or communication between Mr Tronerud and herself provoked her emails. There were however some emails produced in evidence that according to the Applicant revealed the aggressive and bullying conduct of the Applicant. I will now deal with those.
[65] The 18 May 2018 email chain 56 in which Mr Tronerud concluded with the comment “… I love you Raj” is referred to by the Applicant as evidence of Mr Tronerud’s continuing fondness for her and of bullying. I do not accept that characterisation. Read in its proper context it is difficult to see how Mr Tronerud’s comment could be read as anything other than a facetious response to the Applicant’s preceding email, in which she humorously suggested he should have gone to Specsavers as he had made a mistake.
[66] I am not persuaded this email exchange is any more than banter between two colleagues who have some history of such banter. See for example, the email from the Applicant to Mr Tronerud dated 20 July 2017 57 where the Applicant states ‘…Until one day when Craig, Darren and I bury you under the shed and throw the knife in the Yarra.’ While the entire context of the email chain that preceded that email was not available in evidence it is clear enough that the email was in jest and no one suggested that the Applicant was seriously contemplating the murder of Mr Tronerud. The Applicant’s email of 20 July 2017 serves to highlight the nature of the banter that had existed between the Applicant and Mr Tronerud and puts in some context the email exchange of 18 May 2018.
[67] Turning to the email of 6 September 2018 58 in which Mr Tronerud refers to New Zealand not having any snakes, the Applicant appears to have selectively produced the final email of an exchange with Mr Tronerud over a trip she was planning to New Zealand at the time. It (the email) was according to Mr Tronerud a light-hearted reference to the Applicant’s and Ms Gunawardena’s nicknames which had previously been happily embraced by the Applicant as evidenced by her drawing on the office whiteboard. The email is to be properly viewed through the same prism of banter between the Applicant and Mr Tronerud as the email of 18 May 2018. To suggest otherwise is without merit. It does not reveal unreasonable behaviour of Mr Tronerud towards the Applicant.
[68] The Applicant also refers to an email chain dated 20 June 2019 59 in which Mr Tronerud, in responding to a technical explanation provided by a supplier to the Applicant, states to the Applicant that the supplier is ‘taking the piss’ and further states to the Applicant in a subsequent email ‘I think that’s rubbish’. There is no doubt that Mr Tronerud’s language and tone is sharp in responding to the Applicant’s email. I am not however satisfied based on the evidence that his response was directed to the Applicant’s work but rather was directed to the explanation offered by the supplier. The Applicant conceded this point in her evidence.
[69] I am not persuaded that the email of 20 June 2019 constitutes unreasonable behaviour of Mr Tronerud towards the Applicant.
[70] I turn now to the email of 1 May 2019 60 in which the Applicant requests Mr Tronerud to keep his language at a professional level and states to him that she finds him very rude and aggressive. As previously stated, the basis for the Applicant’s email to Mr Tronerud is unclear as no specific emails or communications were referred to in evidence beyond the emails I have considered above. Mr Tronerud tritely responds to the Applicant by saying ‘Please see my mate’ in reference to Mr Turnbull.
[71] It is clear enough by this email exchange that the working relationship between the Applicant and Mr Tronerud has now deteriorated. Mr Tronerud conceded as much in his evidence and attributed this change in 2019 to his unwillingness to continue accepting the Applicant’s rude and aggressive behaviour directed towards him. Both parties accuse each other of similar behaviour but singularly failed to adduce evidence in support of those general complaints. For his part Mr Tronerud accepts that his response to the Applicant mirrored the way she dealt with him. Again, there was little to no evidence going to the exchanges between the two that prompted the description of and complaints about their respective conduct.
[72] Notwithstanding the general absence of probative evidence, I do accept that Mr Tronerud’s response to the Applicant 1 May 2019 was unreasonable. It was in my view unnecessary for Mr Tronerud to pithily respond to the Applicant and in doing so refer to Mr Turnbull as his ‘mate’. The response appears merely designed to put the Applicant in her place. A more professional response would have been appropriate, such as to suggest that if there were issues that needed to be resolved between them then perhaps, they could discuss those issues directly with or without the assistance of Mr Turnbull.
[73] I am satisfied that the email response of Mr Tronerud to the Applicant on 1 May 2019 constituted unreasonable behaviour.
Allegation 4 – 8 July 2019 Exchange
[74] The applicant claims that during her exchange with Mr Tronerud on 8 July 2019 in relation to a sample record, he engaged in bullying and aggressive behaviour by accusing her of not maintaining proper records and started making attacks on her by ‘whispering and murmuring’. What he is alleged to have whispered and murmured was not adduced in evidence. The Applicant relies on the email of Mr Galbraith of 9 July 2019 to support her claim that Mr Tronerud’s conduct was offensive and bullying.
[75] The evidence of Mr Galbraith and Ms Bologna confirm that there was an interaction between the Applicant and Mr Tronerud on 8 July 2019 at the Applicant’s desk. Both Mr Galbraith and Ms Bologna each only heard part of the exchange. To the extent that Mr Galbraith’s evidence can be relied on, on which point I will return, he only heard a snippet of the exchange and heard Mr Tronerud asking the Applicant where the sample was in a raised voice. Ms Bologna also heard part of the exchange and claims to have heard the Applicant repeatedly and loudly denying that she had the sample in question to which she states Mr Tronerud was calmly responding.
[76] While neither Mr Galbraith or Ms Bologna heard the full exchange between the Applicant and Mr Tronerud there is an apparent conflict in their evidence. That conflict may be explained by neither having heard the full exchange. As to Mr Galbraith’s description of Mr Tronerud’s behaviour as appalling in his email to the Applicant one 9 July 2019, he hastily conceded during his evidence that his description had been unfair and only based on the ‘snippet’ of the exchange he witnessed. He also accepted that his conduct in privately supporting both the Applicant and Mr Tronerud was two faced and driven by his desire to maintain neutrality in his dealing with his colleagues.
[77] Based on Mr Galbraith’s concession made during his evidence I place no reliance on the email he sent to the Applicant on 9 July 2019. I am not satisfied that it accurately represents events that occurred on 8 July 2019. It could not, as on his own evidence Mr Galbraith saw or heard little of the exchange. It was more likely, as Mr Galbraith conceded, a dramatization by him of the exchange and was offered to the Applicant the following day in his email to assist him maintain the appearance of empathy and support for her. To use the vernacular Mr Galbraith sought to, ‘run with the hares and hunt with the hounds’, in his dealings with the Applicant and Mr Tronerud in an endeavour to maintain a neutral position.
[78] Ms Bologna’s evidence was credible and unchallenged, and I accept her evidence. On that basis and accepting Mr Galbraith’s evidence of Mr Tronerud having raised his voice I am satisfied that an exchange did occur between Mr Tronerud and the Applicant on 8 July 2019. Mr Tronerud questioned the Applicant as to her record keeping in respect of the missing sample. I am also satisfied that the Applicant was unhappy with Mr Tronerud’s suggestion that her record keeping was inadequate and responded in an animated way.
[79] I find that it is likely that the Applicant and Mr Tronerud were both robust in their manner during the exchange. I am however unable on the evidence to conclude that Mr Tronerud was the key protagonist or that the level of his questioning of the Applicant was such as to establish that he was bullying the Applicant. As regards the ‘whispering and murmuring’ that Mr Tronerud is alleged to have engaged in during the exchange, the specifics were not raised in evidence by the Applicant and Mr Tronerud vehemently denied the allegation. I am unable to establish whether such behaviour occurred on the limited evidence before me.
[80] I find that the allegation made regarding Mr Tronerud’s conduct on the 8 July 2019 is not made out and that it does not constitute unreasonable behaviour directed towards the Applicant.
Other matters
[81] Turning to the email chain between Mr Galbraith and the Applicant on 30 May 2019 Mr Galbraith described his comments about Mr Tronerud being ‘on his meds’ as a joke or banter with the Applicant. I refer to my comments above at paragraph [77] that described Mr Galbraith’s somewhat ‘two faced’ approach taken in his dealings with the Applicant and Mr Tronerud out of an apparent attempt to remain on good terms with both.
[82] Taken at its highest the 30 May 2019 email chain might support an inference that Mr Tronerud’s behaviour was such that his colleagues believed he needed medication. That however was not Mr Galbraith’s evidence when cross-examined. He rejected such an inference. For the reasons I found some of Mr Galbraith’s evidence unreliable in relation to the incident 8 July 2019 I similarly treat his evidence in relation to the 30 May 2019 email with caution. It does not establish any evidence of bullying conduct by Mr Tronerud towards the Applicant.
[83] As regards the text message screenshot from ‘Kate’ to the Applicant no evidence was adduced as to the timing or context of the text message nor was the sender of the email called to give evidence. I consequently place no weight on it.
Summary of allegations
[84] I have found one instance of unreasonable behaviour by Mr Tronerud and that the balance of the allegations made by the Applicant are not supported by the evidence. To the extent that I have found some unacceptable behaviour, it is limited and minor in nature and does not establish a basis for a finding that the Applicant has been bullied at work.
[85] I am not satisfied that Mr Tronerud has engaged in repeated unreasonable behaviour towards the Applicant or group of workers that the Applicant is a member of. The Applicant has failed to establish the required criteria under s 789FF (1) of the Act to support a conclusion that she has been “bullied at work” in accordance with the definition provided at s 789FD of the Act. Having reached this conclusion, it is strictly unnecessary for me to consider and determine whether a risk of further bullying exists.
[86] However, if I am wrong in my conclusions in relation to the above, I intend to also deal with whether a risk of further bullying exists.
Is there a risk that the Applicant will continue to be bullied at work?
[87] As stated at paragraph [3] above the parties reached an agreement as to the manner of managing the working relationship between the Applicant and Mr Tronerud. This agreement appears to have been a pragmatic acceptance of the obvious and that is the working relationship between the Applicant and Mr Tronerud had deteriorated for reasons ascribed by both to the other’s behaviour. The Agreement was reflected in the Statement issued by the Commission 7 August 2019.
[88] With one minor exception all witnesses gave evidence that the arrangements put in place since 7 August 2019 had been effective in managing the interactions between the Applicant and Mr Tronerud. All the Applicant’s and Mr Tronerud’s colleagues who gave evidence state that they have observed the agreed arrangements to be working effectively. 61 For his part Mr Tronerud expressed satisfaction with the working arrangements that had been put in place since 7 August 2019 and was happy for that arrangement to continue.62
[89] The Applicant states that one incident has occurred since 7 August 2019 whereby Mr Tronerud allegedly threw a document on her desk and in response, she sent an email of complaint to Mr Turnbull. Mr Tronerud said in reply that he went to drop off a document on the Applicant’s desk but in his haste to get to a meeting carelessly placed it.
[90] When pressed as to what other measures the Applicant would seek if the Commission were to make order, she was unable to identify any measures beyond those already reflected in the Commission Statement dated 7 August 2019 but simply sought that permanent orders be put in place reflecting the contents of the Statement.
[91] I am satisfied that the arrangements that were agreed and implemented in the workplace following the issuing of the 7 August 2019 Statement by the Commission have been effective in managing what has evolved to be a difficult working relationship between the Applicant and Mr Tronerud. Based on the continued operation of those agreed arrangements I am not satisfied that there is a risk of bullying occurring. In these circumstances, the risk of further bullying, if bullying conduct had been established, is conceptual and hypothetical only. Consequently, the establishment of the second limb of s 789FF of the Act is also unable to be met.
Conclusion
[92] The Applicant has failed to establish the required criteria under s 789FF(1) of the Act to support a conclusion that she has been “bullied at work” in accordance with the definition provided at s 789FD of the Act. Furthermore, she has not established that there is risk of further bullying conduct occurring.
[93] The Applicant’s application for an order under s789FC of the Act is consequently dismissed. An order to giving effect to this will be issued in conjunction with this decision.
DEPUTY PRESIDENT
Appearances:
U. Chakraborty for the Applicant.
N. Turnbull for the Respondent.
S. Tronerud on his own behalf.
Hearing details:
2019
Melbourne
17 October
Printed by authority of the Commonwealth Government Printer
<PR713578>
1 Statement issued by the Fair Work Commission in AB2019/370, dated 7 August 2019, at paragraph [4]
2 Transcript at PN414
3 Exhibit R5, Witness Statement of Mr Nicholas Turnbull, paragraphs [1]-[2]
4 Exhibit R3, Whiteboard drawing, Transcript at PN211
5 Transcript at PN1113
6 Ibid at PN1119
7 Ibid at 1520
8 Ibid at PN1486
9 Ibid at PN PN1681-PN1682
10 Ibid at 1516-PN1517
11 Ibid at PN249, PN650
12 Ibid at PN459, PN643, PN648, PN786-787
13 Ibid at PN252, PN1119
14 Exhibit R8, Witness Statement of Ms Sarah Bologna, paragraph 1, Transcript at PN667, PN803
15 Transcript at PN1147
16 Ibid at PN1372
17 Ibid at PN1488
18 Ibid at PN1502
19 Ibid at PN1489-PN1490
20 Ibid at PN1498-PN1505
21 Ibid at PN1520
22 Ibid at PN461, PN646, PN903
23 Ibid at PN1121-PN1134
24 Ibid at PN1637-PN1642
25 Ibid at PN1599-PN1601
26 Exhibit R6 Record of Incident in Workplace, Transcript at PN300, PN307
27 Exhibit R9, Witness Statement of Ms Jay Gunawardena, paragraph [2], Transcript at PN793-PN800
28 Exhibit A5, Email from S Tronerud to R Datta, dated 18 May 2018
29 Exhibit A1, Email from P Galbraith
30 Transcript at PN1406
31 Exhibit R4, Email from r Datta to S Tronerud, dated 20 July 2017
32 Transcript at PN1493-PN1496
33 Exhibit A6, Email from S Tronerud to R Datta, dated 6 September 2019
34 Transcript at PN1408-PN1411
35 Ibid at PN1571-PN1573
36 Exhibit A12, Email Chain 1 May 2019
37 Transcript at PN1393-PN1395
38 Exhibit A4, Email from R Datta to S Tronerud, dated 19 June 2019
39 Transcript at PN1524-PN1526
40 Exhibit A2, Email chain dated 20 June 2019
41 Transcript at PN1391
42 Ibid at PN1282-PN1290
43 Ibid at PN1328-PN1332
44 Exhibit A1
45 Transcript at PN940
46 Ibid at PN976
47 Ibid at PN997-PN1000
48 Ibid at PN975
49 Ibid at PN657-PN663
50 Exhibit A3, Email from Mr P Galbraith, dated 30 May 2019
51 Transcript at PN906-PN909
52 Exhibit A9, screenshot of text message from ‘Kate’ to the Applicant
53 Amie Mac v Bank of Queensland and others [2015] FWC 774
54 Ibid at paragraph [79]-[80]
55 Ibid at paragraph [99]
56 Exhibit A5
57 Exhibit R4
58 Exhibit A6
59 Exhibit A2
60 Exhibit A12
61 Transcript an PN554-PN556, PN751-PN755, PN869-PN871
62 Ibid at PN1527-PN1533
0