[2021] FWC 2724

FAIR WORK COMMISSION

DECISION

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

Ms Sally Fields
&
Ms Rachel Jayne Smith
v
Ms Zoe Williams; Northern Gulf Resource Management Group
(AB2020/494 & 499)

COMMISSIONER HUNT

BRISBANE, 13 MAY 2021

Application for an FWC order to stop bullying – findings made by Commission relevant to contested facts – one occasion behaviour unreasonable to one applicant but not repeated – applicants not bullied at work – orders cannot be made – applications dismissed.

[1] On 24 July 2020, Ms Sally Fields made an application pursuant to s.789FC of the Fair Work Act 2009 (the Act) to the Fair Work Commission (the Commission) for an order to stop bullying. Ms Fields’ employer is Northern Gulf Resource Management Group (the Employer Party/NGRMG/Northern Gulf). The application sought an order to stop bullying against Ms Zoe Williams, CEO of Northern Gulf (the Person Named).

[2] On 28 July 2020, Ms Rachel Smith made an application pursuant to s.789FC of the Act, also seeking a stop bullying order against Ms Williams.

[3] After listing the matter for a conference on 17 August 2020, I issued Directions for filing of material in relation to the applications and determined to hear both matters at a Hearing on 20 and 21 October 2020.

[4] Ms Fields and Ms Williams seek a remedy in response to alleged workplace bullying pursuant to Part 6-4B of the Act. It is not in dispute that Ms Fields and Ms Smith are eligible workers to bring a claim under this jurisdiction.

Relevant legislation

[5] A worker who reasonably believes that he or she has been bullied at work may apply to the Commission for an order to stop bullying. Section 789FC of the Act provides:

“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

[6] Section 789FD of the Act sets out when a worker has been bullied at work, as below:

“When is a worker bullied at work?

(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally-covered business:

(i) an individual; or

(ii) a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.

(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:

(a) the person is:

(i) a constitutional corporation; or

(ii) the Commonwealth; or

(iii) a Commonwealth authority; or

(iv) a body corporate incorporated in a Territory; or

(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;

then the business or undertaking is a constitutionally-covered business.”

[7] The circumstances in which the Commission may make orders to stop bullying is set out in s.789FF of the Act, as produced below:

“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.”

Background

[8] Northern Gulf is a community-based, not-for-profit organisation that plans, funds, implements, and monitors natural resource management programs in the north-west corner of Queensland. It has offices in Mareeba and Georgetown and relies largely on grants for income. Northern Gulf is overseen by a Board of Directors and employed 12 staff at the time of the Hearing of this matter.

[9] Ms Fields commenced employment with Northern Gulf in July 2018 and is employed as an Intensive Agricultural Officer. Ms Smith commenced employment with Northern Gulf in October 2017 and is employed as a Communications Officer.

[10] Ms Williams commenced as CEO of Northern Gulf in September 2018. Ms Williams acts as the only manager within Northern Gulf, with all employees directly reporting to her.

[11] As part of her professional development and at the request of the Board, in 2019 Ms Williams participated in a 360 review process (the 360 Review). The 360 Review was conducted by an external consultancy firm, Full Circle Feedback.

[12] Following the 360 Review, Ms Williams was approached by members of the Board who advised Ms Williams that some employees had contacted the Board with respect to her management of the business.

[13] On 6 June 2020, Ms Fields wrote to Ms Williams, advising her that she wanted to raise a number of grievances:

“Dear Zoe,

I need to speak to you urgently about several workplace grievances.

• A lack of congruency in your management of Northern Gulf RMG and its staff.

• Support and participation of office gossiping and bullying.

• Unfair and unjust treatment of certain staff consistently over a 15 month period.

• Underhanded sabotage of targeted projects, events and funding.

• I would really like you to listen at this meeting before responding to my grievances.

• I would then like you to summarise what I have said so I feel confident that I have been understood.

I would like to bring a support person with me to document and record the meeting. This person is an external person, a skilled manager, and a highly regarded member of my community. I have asked Sophie McGrath to attend this meeting as my support person. Sophie will remain impartial, and is attending only to record the details of the meeting as a witness.

I do not want you to provide solutions or resolutions in this meeting, however, I ask you to take some days to process what has been said before meeting back with me and my support person later in the same week of 8th June – 12th June 2020.

We already have a meeting scheduled for 10am, 8th of June in the Mareeba Northern Gulf office. I would like to use this scheduled meeting time to address the above said grievances. Sophie McGrath is available to attend this meeting. Please advise if you are still available to attend a meeting with me at this time to hear what I have to say regarding the grievances stated above.

Kind Regards,

Sally Fields”

[14] On 12 June 2020, Ms Smith wrote to Ms Erika (Riki) Gunn who held the position of Chairperson until 24 August 2020. In her email, Ms Smith raised a number of concerns regarding Ms Williams. The email was copied to Ms Williams, addressing Ms Williams directly in the bottom paragraphs of the email:

“Hi Riki,

I hope this finds you well. As you may be aware, I have recently taken six days of stress leave from NG, I am planning on returning to work this coming Monday. I am currently completing a return to work form that I will have signed off from my doctor in the coming week.

In the meantime, I have had time to think about the situation and the issues that I have been dealing with at work over the past 12 months that have had a negative impact on my work and home life.

In order for myself to return to work and continue to perform my role to the best of my ability. I am requesting that the below grievances are investigated. Due to the serious nature of these and the situation, I am also requesting that this investigation be carried out by an external party.

In returning to work, I require the below issues to be investigated and resolved in regard to Northern Gulf’s CEO, Zoe Williams:

• Inconsistent and unfair treatment

• Lack of support and communication

• Support and participation of office gossiping, bullying, and intimidation

Further to these points stated above, I would I am also requesting that the feedback from the 360-review process undertaken from staff for Zoe Williams be brought into this investigation.

In support of my return to work and to alleviate any unnecessary future stress, I am requesting to continue to work from home 2 out of the 3 days. (Monday and Tuesday) I am happy to work from the office on Wednesday’s when Matt will be in so I can work with him until these issues have been resolved.

I also have 22 hrs of TOIL accumulated which I will be putting a leave application in next week to use this time during the June/July school holidays.

Zoe. I am happy to have a meeting on Wednesday the 17^th with you and Matt to discuss the use of a shared email address that I, Matt, and you have access to.

Thank you in advance for your time.

Kind regards,

Rachel”

[15] On 15 July 2020, prior to the two applications being made to the Commission, Northern Gulf commenced an investigation facilitated by an external investigator, HR Dynamics. Ms Deanne Baker of HR Dynamics wrote to Ms Williams setting out a summary of concerns raised by Ms Fields, Ms Smith, and a third employee, Mr Reg Huston:

“Dear Zoe

RE: STAFF COMPLAINTS

As you are aware, I have been requested to investigate a number of complaints from staff have been raised with Northern Gulf Management Group regarding your conduct, capacity and performance as CEO. The complaints are summarised and outlined below. In accordance with the principles of natural justice, you have:

• The right to know the complaints/allegations raised

• The right to respond to any complaints/allegations raised

• The right to unbiased treatment

• The right to be represented should you choose

It is important to note that no determination in relation to any actions or consequences has been made at this time. Your response is being sought to determine If any allegations need to be formalised to yourself or the complainants prior to any decisions being made.

For the purposes of seeking your response, the complainants have been asked to outline their complaints and provide specific examples allowing you enough Information to respond accordingly.

Below is a summary of the concerns, and staff have been able to provide detailed evidence for each allegation made. Not all examples provided by staff have been included, however should you wish to be provided with all examples, these can be provided on request. The purpose of the summary is to present an overall picture of the concerns relating to the concerns raised by staff regarding your conduct capacity and performance as CEO.

Summary of Concerns:

Failing to address workload or organisational structure in the position of CEO

• Matt Nicholls identifies in his resignation letter that there is a lack of workload structure and role ambiguity as well as concerns regarding who he reports to

• Rachel Smith reports that there are no solid processes and guidelines in place, and that people are working outside their PD's

• Rachel Smith, Reg Huston, and Sally Field report being overloaded in their positions and have requested additional assistance on multiple occasions with no resolution offered by you as CEO

• Rachel Smith reports that the appointment of an additional Communications Officer was deliberately delayed

• Reg Huston has stated that he works part time and that he has worked voluntarily to get grants up without being paid. Reg states that you have said that there would be further hours on offer, however they never eventuated

• Example:

• Rachel Smith Diary Entry • Monday 30 September 2019 -Zoe came into my office to ask if I had seen the email with the new contract offering the 2% pay increase, I asked "is it Just the one bracket increase and she said "yes" but nothing else, no reason as to why I didn't get what I had asked for. Zoe then discussed the change in daily hours and suggested I could drop the .4 off my 30.4 fortnightly hours. She said I would have to lose the .4 in my pay so I chose to keep it as it was, she then said that I would need to work out how to make up the 6min per day difference, she said taking sick leave will also be an Issue. The delivery from Zoe was cold and direct in her delivery of what we discussed, there was no opportunity or room for me to discuss and question what she was saying.

• There is existing funding for a full-time field officer however there is no allocated full-time resource.

• Rachel Smith Diary entry Friday 3rd April - Zoehas on numerous times advised we have a communications budget deficit in my submission for comms support/level 2 admin. However, Zoe has engaged an independent contractor at a rate of $700 plus GST per day for 2 days, where my department with an additional support (admin level 2) could have comfortably completed this project as this is in my scope of works and would be more financially viable.

Demonstrating poor communication in the position of CEO

• Rachel Smith reports that upon sending the medical certificate through for stress leave, on the same night her email was transitioned to a shared email account which resulted in her emails, particularly her emails relating to stress level being accessible by other staff- this was not communicated prior that her email would be shared and created some stress as it was a long term email with confidential emails to yourself regarding her stress leave and other matters. Ms Smith claims there was no opportunity for her emails to be cleaned out or removed before shared access was granted. Subsequently there was a new clean email shared account created.

• Rachel Smith reports that Matt Nicholls resigned, and this was not communicated to her which caused work stress asMatt was assisting with a work assignment and no plans were known about how his work was going to be redistributed or absorbed

• Rachel Smith, Reg Huston, and Sally Fields when interviewed portrayed a work environment that is ''gossipy" and that can exclude other staff

• Rachel Smith reports a bathroom conversation whereby you told her that you did not like Wade and that Vicki does not like him. Ms Smith felt this was inappropriate to be raised by you as CEO

• Rachel Smith, Reg Huston, and Sally Fields reported that you have a "cold demeanour'' and come across and unapproachable. All report that you can be very defensive in normal conversation

• Rachel Smith, Reg Huston, and Sally Fields have stated that you do not say good morning to them and that you "exhibit childish behaviour" by saying hello and goodbye to other staff

• Examples:

• Wednesday 17 June 2020 - On Rachel's return to work the new Communications Officer attended her office for a catchup meeting. He voiced concerns that he was not comfortable about using an existing email address as a shared email. Rachel states that you 'abruptly entered my office through a closed door and stated in a sharp manner, "are we having this meeting now?" 'Rachel asked what meeting she was referring to as she or the new Communications Officer had not received any notification of a meeting. During the meeting later in the afternoon, you stated that Rachel was "whinging about the use of her email address for the set-up of applications, and having to send the codes onto other staff when they want to access this'' You made reference to an incident regarding Dan trying to access Survey Monkey. After you left, the new Communications Officer expressed his concerns to Rachel regarding the level of management, process, and protocols of what he has witnessed.

Demonstrating poor procedural management in the position of CEO

• Two staff have reported that you admitted that don't complete interview paperwork in accordance with organisation procedure and that you admitted that you score candidates after you have decided on a candidate so the scores align to your decision

• You were aware that the two smart grants applied for in early 2020 did not have an allocation for budget within the grant application. When the two grants were approved, this was unexpected however you did not engage with Sally (sic) Smith regarding the delivery of the grants combined with her current workload.

• Examples:

• During a meeting on the 1 October 2019, Reg was giving an update and you didn't look up from your phone, which demonstrated a lack of meeting procedure. During the same meeting during the meeting, you openly offered Kathy's daughter a temp casual job in Georgetown. You asked Kathy, “did your daughter Georgia still want a job", to which Kathy replied "yes" and so you told Kathy to tell her daughter to call you, Georgia did do a small amount of work and nothing was put through the recruitment process.

• Monday 25 May 2020 - After interviews for the new Communications Officer a conversation occurred in an open area of the office, where you commented that you do not complete the score section of the interview question sheet until you have selected the candidate you want, and then you complete the scoring to make sure they add up to that person you chose. This was heard by at least two staff members.

• Sally Fields Diary Note “Zoe come to me to tell me that she was not going to give me a pay rise. She said that she hadn't asked me to do anything extra, therefore a 60 cent an hour pay rise was not warranted, I actually got upset and cried openly in front of Zoe. Saying that I had really struggle with her this past year. That I felt she had openly tried to sabotage my project and that I had stopped coming to her for her opinion so that I could get my work done. That every time I came to her to ask her about something that she put a block in my way. Zoe replied, 'so this thing between us is my fault'. She also told me that she felt intimidated by me. I told Zoe that I did not want her job, I just needed her support to do my project. That we didn't need to be friends, we just needed to be professional. At the end of the conversation Zoe told me that she was glad she didn't give me a pay rise, so that we could have this conversation.

Demonstrating unfair treatment of certain staff in the position of CEO

• Sally Fields alleges that you sabotaged her "What Lies Beneath" event whereby you attempted to prevent the event going ahead due to the cost of hiring the projector from the venue despite the event being sold out, speakers donating their time and the event attracting approx. $4000 of income from ticket sales.

• Rachell Smith reports you have applied unfair and an inconsistent management approach to requests for working from home during COVID 19.

• Rachel Smith, Reg Huston, and Sally Fields when interviewed portrayed a circle of employees that are treated more favourably, being Vicki Mylrea, Kathy Rowling, and John McLaughlin.

• Rachel Smith, Reg Huston, and Sally Fields when interviewed claimed that you do not acknowledge the work of employees who are not in your “circle”

• Example;

• Sally Fields Statement: My first workshop was a sell-out event for 50 people at Skybury Coffee ‘What lies beneath’ on the 29th March 2019.

• On the 22nd of March, one week before my event, Zoe refused to pay for a $200 projector that I needed to hire to run my workshop. As I had not been given a budget (I commenced my role early December 2018 and had 7 months to deliver a 12-month project), nor did I have any control over my budget.

• The projector at the venue was broken and Paul Fagg suggested I hire one from Cairns to deal with the large curved screen in the cinema venue. I asked Paul if there was any chance that one could be purchased before the event, and he said that was not an option.

• As a solution to the projector hire, Zoe went on to suggest several other alternative venues. I needed to hold the event somewhere with a cinema room or features of one as I was screening a documentary 'grassroots' and zooming in the film maker for a presentation and a Q and A session. Also, farmers had been encouraged to bring a soil sample and we were hooking up a microscope to the big screen to look at the microbes in the soil sample.

• As mentioned previously, Zoe had still not provided a working budget, I could not argue the point that I had a budget to cover a $200 projector.

• All my guest speakers were donating their time (6 speakers) and catering morning tea/lunch was $25 per head. 50 people workshop plus venue hire at $150. The deliverable was valued at more than the expenses I had accrued.

• I was shocked that Zoe could suggest a venue change as a solution to the required projector. She then asked me to ring Paul Fagg (Skybury) and tell him that NG was not going to pay for the projector. I was very worried about the outcome of the phone call. Paul however was very accommodating and offered to cover the cost of the projector.

• The following week Rachel called out from her office to ask what had happened about the projector. Zoe answered by saying, 'the CEO just had to put her foot down'.

• Rachel Smith Diary entry Monday 25th May 2020 - Other staff given the option/opportunity to continue to work from home, however I was instructed that I would need to be in the office at all times so people could communicate with others. A potential new employee was offered home/Cairns work from home option in the interview and project officer offered the same. Seemed an unfair, bias process.

Demonstrating inappropriate conduct in the position of CEO

• You have stated to Sally Fields that you are intimidated by her

• You have not attended any events that Sally Fields has organised; however, you have attended other events organised by other staff that are further away

• You travelled 5 hours to Georgetown to assist John Mclaughlin in cleaning the office but have failed to offer support to other staff on other matters

• You have not intervened when staff members have become upset with other staff members and attempted to address or resolve the conflict appropriately (Reg relayed an incident where Vicki Mylrea was very heated while standing at the door of the Boardroom)

• Sally Fields reports that the Holistic Land Management Event was to be reported on by two funding areas which contravenes the funding requirements

• Sally Fields and Reg Huston report that you deliberately sabotaged $100,000 of funding by sitting on grant paperwork for approximately 4 weeks and not submitting by the deadline. This resulted in you having to request an extension when the documents where provided to you with more than adequate time for signing and lodgement

• Examples:

• Sally Fields Diary Note: At no time after one of my events has Zoe enquired as to how the event has gone. Nor has she attended any of my events over a 19 month period. All of my events have been held within a 15 minute drive from the Northern Gulf office. Zoe has attended multiple events that other staff members have put on at Georgetown (5 hours from the office), Mt Surprise and in the Mareeba area.

List of Events

1. What lies Beneath - Skybury Coffee, 29th March, 2019

2.Soil Regeneration Forum, Mareeba Field Day 30th May, 2019

3.Avocado Australia Field Day, I lead the field day walk on Soil Health

4.Is your farm addicted to Inputs, John Jennings farm - Mareeba - December 2019

5. Holistic Land Management Workshop, Mareeba - 25/26th June, 2020

• Sally Fields Interview Note: Holistic Land Management. 19 May 2020 staff meeting, “CEO was strange on zoom meeting did acknowledge me or Rachel and she missed me in the report summaries, and I had to remind her that I was online for my report. She sends an email that afternoon saying that the funding that she was going to use JMA funding wasn't available anymore (the reason she used for the funding being available was not correct). Instead she used RLP funding money and told RLP employee that he could use the event as one of his deliverables - He knew nothing about the event. She is giving the credit and deliverable of this event to someone else without even talking to me.”

Facilitating a Gossiping and intimidating environment amongst staff in the position as CEO

• Rachel Smith, Reg Huston, and Sally Fields when interviewed stated that you actively participate and support a gossiping environment within the workplace

• Example:

• Rachel Smith Diary Entry Wednesday 29th January 2020 - Kathy and Zoe were standing outside Zoe's office openly discussing a recent employee [name]. Zoe was commenting on how [name’s] email address is now grazing@wetherington ... Zoe then said something that I didn't hear but after it she laughed and sold "oh I'm a horrible person ... am I a horrible person?” to which Kathy laughed and said "well you shouldn’t tell stories about peoples drug use" to which they both laughed.

• Rachel Smith Diary entry February 26th 2020- First farming futures workshop, I seen a post on Facebook promoting the event that was using the old NG banners. I sent a message to our work team group messenger chat asking where our new banners were to which Kathy responded rudely and unprofessionally. This conversation as visible by multiple other staff. I brought this up with Zoe, to which she commented “she must be having a bad day” and walked away. I have never been notified in regard to follow up on this incident or given an apology.

As mentioned, these are a summary of the concerns that have been raised relating to conduct, capacity, and performance in your role of CEO.

You are requested to present all information and evidence in response to these concerns during an interview that will be arranged with you. It will be requested that due to the volume of information contained within this correspondence, the interview be voice recorded for accuracy in recalling information.

Should you have any questions, please contact me on 0487 406 412.

Kind regards

Deanne Baker

Human Resource Dynamics”

[16] Ms Williams provided a 12-page written response to Ms Baker and was interviewed and participated in the investigation. Ms Fields and Ms Smith were also interviewed as part of the process. A sample of Ms Williams’ response to some of the matters put to her is included below:

(a) “Matts Position Description clearly identified the role and who he reported to. I believe any ambiguity was created by Rachel Smith returning from 2 weeks leave after Matt had commence work and having private meetings with Matt which should have been communicated with me (as both Rachel and Matts supervisor) behind closed doors and telling me I was not permitted to attend. I do not know what was said during those meetings but Matt submitted his resignation in the early hours of the following morning. Resignation on Thursday – non workday for Rachel.”

(b) “[The appointment of an additional Communications Officer was deliberately delayed] by a board decision in light of Covid and uncertainty. This can be confirmed by the Chair if required. It should be pointed out that Rachel requested to reduce her hours at short notice in order to commence work with another employer.”

(c) “Rachel had been using the publicity@northerngulf email which had always been a shared account, although no one else had access at that time. Our HR policy is very clear that work emails are not confidential. Rachel was apparently not actually that concerned about other staff viewing the email in which she advised she was taking stress leave as she did not delete it from the sent items folder even after she became aware that I had requested access for Matt (on the Tuesday before he commenced work when she contacted HR accusing me of breaching her privacy), and had also unbeknownst to me bcc’ed that email to Sally Fields. I believe that what Rachel was actually concerned about was that her emails showed she had been conspiring with Sally in the development of this complaint and that Rachel and Reg had been using work email to share nasty emails about me. Refer to email between Sally and Rachel, where Sally forwards my response to her concerns regarding my handling of her work-from-home request to Rachel with a “lol” comment, which indicates that she found the situation amusing. This email was promptly deleted from the shared mailbox, however I had already saved a copy…”

(d) “I don’t believe I am cold or unapproachable and believe other staff would tell you with was not the case. I do find Rachel and Sally both very argumentative and will not accept my decisions, so I try not to enter into debates with them. I manage the organisation competently and have done my best to maintain communications during challenging times and in a very busy, dynamic work environment with many competing demands on my time. I also don’t believe a bubbly personality is necessarily an essential trait in a CEO.”

(e) “I am usually first in the office and last to leave. I say hello to everyone already in when I arrive (often there is no one in but occasionally Reg is in early, never Rachel or Sally), and always make a point of saying goodbye to anyone still in when I leave (mostly to ensure they have keys to lock up), sometimes Reg is in the office when I leave and on rare occasions Sally is still in the office when I leave, and on those occasions I definitely say goodbye to the. Rachel always leaves well before me and never says anything to me when she is leaving the office.

We have several staff (notably Wade, Dan, Kathy and Vicki) who always make a point of coming to my door to say hello when they arrive and let me know when they are leaving. I do not seek anyone out especially. Rachel usually arrives after 9.00 and has her office door shut and/or headphones in. Sally often doesn’t arrive until 10.00 or 11.00, by which time I am usually well into meetings or other work.”

(f) Rachel Smith returned from 2 weeks leave after Matt had commenced work and initiated a private meeting with Matt behind closed doors. When I knocked and opened the door saying “I’ll join you if we are having this meeting now” Rachel told me I was not permitted to attend unless she (Rachel) was able to arrange to have her support person present.

I was contacted later in the day by Kelly O’Kane (Corporate Nature HR specialist) who told me Rachel had contacted her about this incident and she had advised Rachel that it was not appropriate for her to require a support person for a work discussion with another staff member and I, only for discussions with me regarding her complaint, and that Rachel had agreed to discuss Matt and her working arrangements with me in the afternoon.

Rachel was difficult and argumentative during the afternoon meeting and refused to accept my decisions. Matt was clearly uncomfortable and becoming increasingly so, so I left Rachels office.”

(g) “Sally did become upset when I told her I would not be giving her a payrise. I believe this was a reasonable management decision which was discussed with the Chair. If you refer to her self-assessment she herself acknowledged 2 areas in which her performance was lacking.

I also became upset during the meeting, particularly when she made me feel guilty by telling me how she was a single parent and all her son had for financial support. I tried to explain to her how I found her difficult to talk to and intimidating, and that I need her to improve her communications, so that I could feel more confident about her project management. I was attempting to explain to her how her behaviour (eg arguing with me, not respecting management decisions, not keeping me informed of what she was doing) was contributing to the problems. I thought she had understood but obviously she did not. I did say I was glad that my decision had triggered that conversation and hoped we had cleared the air. I had hoped after that we could have a better relationship moving forward, but Sally has continued to be uncommunicative, argumentative and make unilateral decisions without discussing them with me.”

(h) “I do not treat certain employees more favourably. With reference to Rachels complaint about Kathy being offered an opportunity to present at a conference, that was a decision made with regards to the strategic opportunity to get our community development work in front of an audience including federal, state and local governments and a professional development opportunity for a staff member to do some public speaking in a professional context.

That is in contrast to the Mareeba Chamber of Commerce dinner (another of Rachels examples of me being unfair) which was for local business people with little strategic value. I also deny saying Sally couldn’t attend, and in fact agreed to pay for 2 tickets so Sally and Rachel could attend (which they did). I did refuse to pay for a whole table at a cost of $1000 at a time when we were in a very dire financial position. Unfortunately, Rachel did not ask me whether I was happy to book a table before sending an all staff email asking people to RSVP with numbers for out table. When I advised her we would not be booking a whole table she became angry, and said “but people have already RSVPed”. I told her she would have to tell them she had made a mistake.

Later Sally approached me about this same issue, and again I explained that I would not book a whole table but would pay for her to attend and also 1 other staff member to accompany her if she wanted. She also became angry and argued with me. Another staff member came to ask about the dinner as Sally and Rachel had told her I ad said no-one was allowed to attend the dinner. I explained that I had not said that, and that of course anyone who wanted to go could as it was outside work hours, but that Northern Gulf would not pay for everyone’s tickets.

Rachel then proceeded to contact Directors to complain that I wouldn’t book a table for the dinner. I maintain this was the right decision. After the event I became aware that Rachel’s business which she runs with her husband won the major award, and I believe Rachel’s primary motivation for wanting to book an entire table was more to do with her personal business than Northern Gulf.”

(i) “I believe it was reasonable to request the venue where we had hired a theatre room would have a projector. As it turned out the venue obviously did not consider this unreasonable as they agreed to hire a replacement for their broken one. I did offer to call the venue if Sally felt uncomfortable about discussing this with them. The event clearly was not “sabotaged” and proceeded as intended.”

[17] With the approval of the Board, Ms Baker surveyed other staff members relevant to their views on Ms Williams’ performance and conduct, together with any views the staff members might have of others in the workplace. Some of the comments included:

(a) “There appears to be a gang of unhappy employees (3 of), who actively ‘bad mouth’ our leader at every opportunity.”

(b) “Two of the complainants have very strong personalities and would be very difficult to manage. The complainant have tried to drag me into their issues before but I want no part in it.”

(c) “Per my comment above about fair and equitable treatment, I have wondered if the CEO has felt bullied/emotionally blackmailed into approving things for a certain staff member in an effort to contain a distressing emotional outburst. I haven’t personally witnessed any bullying or harassments, not have I experienced any.”

(d) “I feel our workplace has a culture of open communication, but I do feel that some staff members (not the CEO or board) do play school yard politics and do not act in a professional manner. They have very little understanding/or management experience or experience with working for a larger company and as part of a dynamic team environment thus they act accordingly.”

[18] Ms Baker then completed a report detailing the outcome of the investigation, noting that Ms Fields lodged the present application to the Commission in late July 2020. A redacted copy of the investigation report was provided to Ms Fields on 6 August 2020. An unredacted copy was provided to the parties as part of these proceedings.

[19] Ms Baker made the following observation:

“It was noted by the investigator that the complainants had a long-standing opinion of the CEO which appeared to stem from her initial appointment as CEO. The complainants expressed that they question why Ms Williams was appointed as CEO in the first instance given her period of absence from the workforce prior to her appointment as CEO. The investigator was advised by Ms Riki Gunn, Chair of Northern Gulf Management Group that the CEO’s appointment was a valid board decision and based on Ms Williams prior experience.”

[20] The ‘Findings’ section of the report addressed each of the allegations made by Ms Fields, Ms Smith and Mr Huston and reached a finding as follows:

“Deliberately delaying recruitment of Communications Officer and appointment of a short-term contractor:

It is reasonable that the CEO would have the ability to decide on the nature of the recruitment regardless of if this was supported or endorsed by Ms Smith.

It is a reasonable business decision to delay recruitment due to the uncertainty of the organisation through COVID. It is also a reasonable business decision to appoint a contractor during this time for specific work due to the short-term nature of the contractor arrangement.

Deliberately not advising Ms Smith of the resignation of Communications Officer Matt Nicholls and reasons for such resignation:

It is reasonable that the CEO would not contact Ms Smith on a non-workday if the matter was not urgent.

However, it may have been appropriate for Ms Williams to send an email to Ms Smith advising of the resignation of Mr Nicholls as a courtesy. It is reasonable to assume that given the tense nature of the relationship between Ms Smith and Ms Williams, this courtesy was not considered.

It is reasonable to ascertain that the efforts of Ms Williams to contact Ms Smith on her first workday back being the following Monday, indicates that Ms Williams attempted to make contact as soon as she felt appropriate.

Recruitment of Field Officer:

It is reasonable to ascertain that Ms Fields does not agree with the decisions made by the Board and CEO relating to the recruitment of the Field Officer including the level of the position and the specified nature of the position. Ms Fields has a view that Ms Georgie Parker should be appointed to the position and that that is her preference.

It is a reasonable business decision made by the CEO to delay recruitment due to COVID and make the Field Officer position an identified position despite Ms Fields’s objections.

Deliberate Sabotage of Funding by not signing grant documents within timeframes:

It is reasonable to ascertain that in the absence of ever receiving the grant documentation from Mr Huston that no attempts to sabotage funding were made by Ms Williams.

It is reasonable for the CEO to decide to request an extension to address the grants and the workload capacity with Ms Fields.

It is reasonable to assume that given the relationship between Ms Fields and Ms Williams, Ms Fields has failed to consider that any other factor other than sabotage was the reason for the grant documents not being submitted. Ms Fields may have also been led by Mr Huston by not being told the grant documentation was not forwarded. It could also be assumed that potentially Mr Huston did not forward the grant documents to Ms Williams in his own attempt to sabotage the process.

Deliberate Sabotage of Ms Fields Event “What Lies Beneath” at Skybury Coffee:

It is a reasonable business expectation that the venue hired would have a working data projector and therefore a reasonable business decision by Ms Williams to request rectification by the venue. There does not appear to be any deliberate attempts to sabotage the event as claimed by Ms Fields.

Opening of the publicity email as a shared email account:

It is reasonable to suggest that more consideration could have been given to opening this account prior to executing the action given that Ms Smith previously had sole access to this email for a number of years, however the decision to open the email was a reasonable business decision based on Ms Smiths absence from work, reduced hours and working remotely for 2 days per week.

It is reasonable to suggest that better communication and consideration should have been given by the CEO in the opening of the email account.

It was noted that emails BCC’D or shared relating to employee matters between Ms Smith and Ms Fields were deleted from the email account, presumably by Ms Smith however the emails relating to her stress leave were not deleted and are still located in the shared email account. It could be reasonable to assume that the discontentment expressed by Ms Smith was more aligned to the emails relating to grievances being discovered rather than the emails relating to stress leave.

Failing to manage workload of staff:

It is reasonable to assume that there is a common lack of respect from the complainants towards the CEO and her decisions made in the position.

Despite the reason for Ms Fields flex time being due to preparation of her complaint information, this does negate the responsibility of the employee to follow appropriate processes relating to the accrual of flex time. The investigator notes that the decision of Corporate Nature to approve additional flex time was made without proper consideration of the circumstances surrounding the accrual of the time and NQ NRM Alliance HR Policy Manual.

It is reasonable to assume given the common nature of the complaints received, that the complainants have a preferred way of doing things and do not like the CEO questioning their approaches, and when questioned, they are perceiving this as unfavourable treatment.

It is reasonable to ascertain that the complainants are not following NQ NRM Alliance HR Policy and procedures or are potentially deliberately waiting until the last minute to request/address matters with the CEO, and when not approved within their expected timeframes, are perceiving this as unfavourable treatment.

It is reasonable for the CEO to enforce NQ NRM Alliance HR policies and procedures and question staff on their work methods.

Failure of the CEO to apply Pay Increments:

Ms Fields: It is a reasonable business decision made by the CEO not to pass on a wage increment that is optional based on performance. The CEO executed this decision fairly when confronted by Ms Fields as being a single parent. If the CEO had of awarded pay increments based on family status it would not have been a fair decision.

Ms Smith: It is reasonable business decision for the CEO to decide passing the standard one bracket increment irrespective of the employee requesting more. It is suggested that further explanation could have been provided but this is not an action of unfavourable treatment.

Unfair treatment of staff relating to Working from Home:

Ms Smith: It is reasonable to ascertain that Ms Smith failed to follow directions and did not reasonably attempt to obtain approval to continue working from home or seek clarification on the instructions to return to the workplace from the CEO prior to the 25th May 2020 in accordance with NQ NRM Alliance HR policies.

It is reasonable to ascertain that Ms Williams objection to Ms Smith’s request to work only one day in the office was based on the consideration of the needs of the business.

It is reasonable to ascertain that the CEO acted fairly in addressing Ms Smiths failure to attend work at the office on 25th May 2020 and that it was not unfavourable treatment of Ms Smith. Ms Smith believes that other staff had been allowed to continue working from home and had Ms Smith contacted the CEO prior to the 25th May 2020, it is reasonable to ascertain that Ms Smith would have been permitted to continue to work from home in an agreed capacity in accordance with NQ NRM Alliance HR policy, however Ms Smith did not do this.

Ms Fields: It is reasonable to ascertain that Ms Fields showed a lack of respect in following directions and did not reasonably attempt to obtain approval to continue working prior to 24th May 2020.

It is reasonable to ascertain that the CEO acted fairly in addressing Ms Fields’s request to continue to work from home.

Travel to Georgetown to clean the office with John McLaughlin:

It is a reasonable business decision for the CEO to determine the requirement for her to attend the Georgetown office.

It is reasonable to assume that Ms Fields’s unfair perception of this decision is one sided and made without consideration to the purpose of the visit to Georgetown. The allegations made by Ms Fields that Ms Williams is attracted to Mr McLaughlin are undermining and gossipy in nature.

Failure to attend Events coordinated by Ms Fields:

It is a reasonable business decision for the CEO to determine which events are necessary and productive for her to attend.

It is reasonable to ascertain that Ms Fields’s perception of the CEO not attending her events is one sided and made without appreciation or consideration of the CEO’s reasons behind attending or not attending events.

Withdrawal of JMA Funding for the Holistic Land Management Event:

It is a reasonable decision by the CEO to determine and or reassign the appropriate funding source for this event given the COVID impact on Cape York Communities.

Failure to address conflict in the workplace:

It is reasonable to expect that if Ms Smith was aggrieved by the communication exchange, the screen shot evidence would have been provided to Ms Williams at the time she discussed the matter with Ms Williams.

It is also reasonable to expect that Ms Williams should have dealt with the matter more thoroughly at the time.

Failure to follow appropriate Recruitment processes in Interview Scoring:

It is not a reasonable decision by the CEO to complete the interview scoring outside the scope of the Northern Gulf Management Group recruitment process.

The CEO needs to be aware that despite thinking the process she is applying is acceptable, it has the potential to be challenged as favouritism or unfavourable assessment.

Failure to follow appropriate Recruitment processes in the recruitment of staff members daughter:

Whilst the recruitment process may not be standard, all candidates were subjected to the same recruitment process.

It is a reasonable business decision to apply a different recruitment process to a recruitment process provided that the process is consistent for all applicants.

The opinion of Ms Fields and Ms Smith appear to have been made without understanding the context around the comment made by Ms Williams to Ms Rowlings in the recruitment of Georgia.

CEO facilitates a gossiping environment:

It is a reasonable business decision to ascertain feedback from employees relating to a Third Party engaged resource, however the environment and structure of the approach from the CEO may have contributed to a misunderstanding in intent of the question by Ms Smith.

It is also reasonable to think that given the nature of the deterioration in the relationship between Ms Smith and Ms Williams, Ms Smith lacked the ability to see the question in the context that was intended.

It is noted that the claims from Ms Fields that Ms Williams is attracted to Mr McLaughlin are gossipy in nature and would contribute to a gossiping environment with the workplace.

It is noted from the Employee Survey that the certain employees believe that the complainants are a contributing factor to a gossipy environment.

Cold and defensive demeanour:

It would be reasonable to think that the complainant’s opinions of the CEO’s demeanour is impacted by their perception of her performance in the role of CEO.

It would also be reasonable that given the nature of the relationship between the complainants and the CEO, the CEO is quite defensive due to feeling like she is being targeted by the complainants and that this would be impacting her demeanour towards the complainants.”

[21] The investigation report also reached several general conclusions regarding the grievances raised against Ms Williams, and further made recommendations as to how the business may wish to proceed:

“5. CONCLUSION

The concerns raised by the complainants against the CEO cannot reasonably be substantiated or escalated to disciplinary action due to:

• On the balance of probabilities, most of the complaints raised appear to be based on a personal dislike and/or lack of respect for the CEO rather than on the actual merit of decisions or actions of the CEO

• The CEO was able to provide sound reasoning behind decisions / actions relating to the concerns raised by the complainants

• The complainants demonstrated a lack of complying with policies / procedures and instructions in multiple matters that were raised as complaints

• The complainants have not acknowledged that they have failed to comply with policies and / or procedures and this contributed to the events they are raising as concerns and perceiving as unfair or unfavourable

• The complainants raised a significant concern of deliberate sabotage of funding grants by the CEO, upon investigation the CEO did not have the grant documentation provided to her as claimed by the complainants. The complainants overstated this matter significantly and casts doubts on the motive behind the complaints being made.

The investigator notes that there are specific areas that CEO may have demonstrated poor leadership and communication considering the deterioration in the relationships with the complainants:

• Ms Williams could have undertaken a more collaborative and communicative approach to the opening of the publicity email as a shared email prior to executing the decision to open the email account

• Ms Williams could have more thoroughly explained her decisions regarding pay increments being passed on or not to the complainants. This should have been documented at the time considering the tense relationship with the complainants

• Ms Williams should not have adapted her own methods on the scoring of interviews during recruitment and should have ensured that the process adopted was sound, fair and in accordance with organisational policy

• Ms Williams could have dealt with the exchange of communication by Ms Rowlings to Ms Smith more thoroughly

It is the opinion of the investigator that Ms Williams does lack some leadership, behavioural awareness and communication skills that would be expected in the role of CEO. Ms Williams could have demonstrated better leadership, communication, and execution of her decisions; however, this does not constitute behaviour that is harassment, unfavourable or unfair. These areas of improvement have already been identified as an area for improvement in past performance reviews with the CEO.

It is the opinion of the investigator that Ms Williams has generally acted in a reasonable way in executing reasonable business decisions in her role as CEO. The decisions made by the CEO do not appear to be unlawful, discriminatory, or abusive in nature. However, the decisions made have not been accepted by the complainants and this has resulted in the complaints being lodged by the complainants.

The CEO has valid concerns that the three complainants were potentially colluding in their complaints. The complainants presenting and recording of diary notes and the similarity between the complaints, failing to follow standard business policies / processes, failing to follow reasonable instructions, Bcc’ing or forwarding emails that are of no concern to each other, and addressing their concerns readily and openly with each other and other staff members could be determined as behaviour is considered upward bullying and targeted towards the CEO. Should the CEO feel that she is being subjected to bullying and harassment from the complainants and lodge counter complaints, this would be subjected to a separate investigation.

Analysis of the Employee survey indicates that the concerns raised by the complainants are limited to the complainants and there are no shared views on a systemic pattern of unfavourable or unjust treatment of staff from the CEO. The survey indicated that:

• Generally, the staff believe that the leadership of Northern Gulf Management Group is consistent - noting that there is room for improvement in communication and interpersonal skills

• Generally, the staff believe that their workload is mostly consistently reasonable - noting there are peak periods that occur and that it is largely a self-managed workforce

• Generally, the staff believe that the expectations form the workplace are fair and reasonable

• Generally, the staff believe they are treated fairly and equitably

• Generally, the staff believe that leadership acts in the best interest of Northern Gulf Management Group

• Generally, the staff believe that the workplace is free from bullying and harassment – noting that some staff feel there is behaviour of bullying or harassment from staff but not from the CEO

• Generally, the staff believe that there is a gossipy culture noting that this is not directly led by the CEO and that generally there is a large degree of non-productive chat that occurs in the workplace.

It is also noted that staff are aware of the complaints made and the complainants have vocalised these complaints with other staff

• Generally, the staff believe that leadership does not attempt to sabotage the outcomes of employees

• Generally, the staff believe that leadership works collaboratively with employees

The relationship between the complainants and the CEO appears to have deteriorated to an extent that either party/parties can no longer operate effectively in their positions with each other.

6. FINAL RECOMMENDATIONS

The Investigator makes the following recommendations:

1. The investigator cannot reasonably ascertain that the CEO has demonstrated unfavourable or unjust application of reasonable business decisions towards the complainants. It is recommended that the investigation be finalised with the findings provided to all parties

2. The investigator recommends:

a) the parties be provided with a redacted version of this report that is appropriate for release to the complainants

b) the parties are individually talked through the findings by the Board Chair to ensure understanding of the findings

c) the complainants are provided with written documentation following b) above occurring confirming the outcome of the investigation and expectations going forward

d) The Board Chair advises the wider workforce that the investigation has been completed and recommendations relating to the investigation are being considered

e) The parties be offered facilitated mediation to address the interpersonal conflicts that exist between them. It is recommended that this mediation is conducted individually and not as a group

3. The Board review the current organisational structure of Northern Gulf Management Group to determine if it is the most appropriate structure for productivity and longevity of the organisation

4. The Board direct the CEO to undertake training to develop increased skills in the areas of leadership, communication, behaviour awareness and emotional intelligence

5. The Board consider if wider organisational training on communication, behavioural awareness and emotional intelligence is financially viable and achievable

6. All staff undergo training relating to NQ NRM Alliance HR Policies particularly relating to behaviour and bullying and harassment in the workplace

7. The CEO review and provide clarity on the scope of works, accountability, and responsibility of each position within Northern Gulf Management Group”

[22] On 6 August 2020, Ms Baker wrote to Ms Fields advising her of the outcome of the investigation. The letter read:

“Dear Ms Fields

RE: Northern Gulf Management Group investigation and outcome of complaints

I refer to your complaints lodged against the Northern Gulf CEO Ms Zoe Williams and the subsequent independent investigation undertaken in relation to those complaints.

I am independent in terms of you, the CEO and Northern Gulf and do not have a bias towards any party.

The investigation looks at the information, evidence and testimony provided by yourself and Ms Williams and other relevant parties to the investigation. It is important to note that an investigation of this nature is based on the 'reasonable' test and 'balance of probabilities'. This means that the investigation looks at what a reasonable person would determine, or what a reasonable person would determine a reasonable decision.

The investigation has now concluded with the investigation report provided and adopted by the Board of Northern Gulf Management Group.

A redacted copy appropriate for release to you is attached for your records.

It is the findings of the investigation that:

“It is the opinion of the investigator that Ms Williams does lack some leadership, behavioural awareness and communication skills that would be expected in the role of CEO. Ms Williams could have demonstrated better leadership, communication, and execution of her decisions; however, this does not constitute behaviour that is harassment, unfavourable or unfair. These areas of improvement have already been identified as an area for improvement in past performance reviews with the CEO.

Whilst the outcome of the investigation may be disputed by the complainant, these are the findings of the concluded investigation.

I need to bring to your attention that during the investigation Ms Williams expressed her opinion that your behaviour amounts to colluding and upward bullying towards her. At this stage Ms Williams has not made any formal complaint relating to your behaviour but reserves the right to raise any complaints should she continue to feel bullied or harassed by you. These complaints would be subject to a separate investigation process.

Recommendations have been made to the Board relating to the findings of the investigations relating to Ms Williams and the complaints made. The Board will consider these recommendations and determine the execution of any or all these recommendations in due course.

It is clear that there is significant breakdown in the relationship between yourself and Ms Williams and the rectification of this relationship will require significant effort by both parties to repair. One of the recommendations provided to the Board is mediation to attempt to resolve conflicts and begin the repairing of the working relationship. However, for mediation to be successful both parties need to be willing to participate and genuinely wanting to reach an agreement on how each party will contribute to the rectification of the relationship. Mediation will be discussed with you in the coming weeks.

The expectations of the parties going forward is that:

• The findings of the investigation are known by all parties

• The parties execute their roles with Northern Gulf in a reasonable and respectful manner

• The parties operate within the scope of the policies and procedures of Northern Gulf and NQ NRM Alliance HR Policies

• The parties immediately cease behaviour that could be perceived as bullying, harassment, collusion, upward bullying towards the other party

Should the parties continue with behaviour that is perceived as bullying, harassment, collusion, upward bullying towards the other party, or persist in acting outside the organisations policies and procedures, disciplinary action may be considered in accordance with the NQ NRM Alliance HR Policies.

I thank you for your cooperation in relation to this investigation. Should have questions relating to the investigation report or this letter, please contact either Riki Gunn or myself by email in the first instance.

Kind regards

Deanne Baker

Senior Workplace Advisor”

[23] A similar letter was sent to Ms Smith.

Hearing

[24] The matters were heard jointly at a video hearing via Microsoft Teams 20 and 21 October 2020. Ms Fields and Ms Smith appeared on their own behalf, giving evidence in support of their applications. Ms Julie Bosel of Peters Bosel Lawyers was granted leave pursuant to s.596(2)(a) of the Act to appear for the Employer Party and Ms Williams.

[25] In addition to the Applicants and Ms Williams giving evidence and being cross-examined, the following people gave evidence and were cross-examined:

• Mr Reginal Huston; former employee of Northern Gulf;

• Mr Allan Holmes, immediate past Executive Officer of Northern Gulf;

• Mr Matthew Nicholls, former employee of Northern Gulf;

• Ms Lola Stevens, personal supporter of Ms Smith;

• Ms Laura Miller, former employee of Northern Gulf (not required for cross-examination);

• Ms Ellen Weber, Director of Northern Gulf;

• Ms Erika Gunn, Former Chair and former Director of Northern Gulf;

• Ms Deanne Baker, Senior Workplace Adviser of HR Dynamics.

Ms Fields’ evidence

[26] Ms Fields gave evidence by way of written witness statements and oral evidence in these proceedings. 1 In her written materials, Ms Fields provided the below evidence.

Ms Fields’ role at Northern Gulf

[27] Ms Fields holds a Bachelor of Rural Science and is a Qualified Agronomist. She has been employed in the position of Intensive Agricultural Officer since 2018. She said she was very excited with her position at Northern Gulf when she commenced in her role, as the business had employed a mostly new team, a new CEO, and there was a ‘buzz’ within the team. She said that the business was a great place to work, and she had no issues with Ms Williams for the first three months of her employment.

[28] Ms Fields said she began to see a different pattern in how Ms Williams treated her as compared to other staff, and as of 24 July 2019, she began to keep a diary and document items that reflected the change in the office, both overall culturally but also specifically changes in how she was treated by Ms Williams and how it impacted on her and her ability to do her job.

[29] Ms Fields said that on 24 September 2019, the 360 Review process was put into place via email from an external provider, Full Circle Feedback, after concerns were raised with Ms Gunn by other staff regarding Ms Williams. Ms Fields said she felt hopeful that this process would bring to light the issues she and other staff were experiencing with Ms Williams and that they would be resolved.

[30] Ms Fields said that during August 2020, she spent time going through the findings of the report by Ms Baker. She considers that there is unfairness, inconsistencies, and false claims made against herself by Ms Baker and Ms Williams in that report. She said that these included:

“• Claims and accusations made towards myself with no supportive evidence

• Claims of upward and reverse bullying

• Conflicting responses from Zoe Williams (including responses made in the Fair Work documents submitted)

• Accusations of colluding

• 3 separate complaints made

• Apparent claims made by one complainant being presented as though all 3 have made the same claims

• Unfair handling of the process including Zoe Williams interview being recorded, and not the interview of the other 3 staff members.”

March 2019 – Projector incident

[31] Ms Fields said that in March 2019, she was in charge of a workshop at Skybury Coffee called ‘What Lies Beneath’. The workshop was booked for 29 March 2019. Ms Fields’ statement does not directly detail the events, but Ms Fields provided a copy of her handwritten diary notes concerning the workshop which set out:

“My first workshop was a sell-out event for 50 people at Skybury Coffee ‘What lies beneath’ on the 29th March 2019.

On the 22nd of March, one week before my event, Zoe refused to pay for a $200 projector that I needed to hire to run my workshop. As I had not been given a budget (I commenced my role early December 2018 and had 7 months to deliver a 12-month project), nor did I have any control over my budget.

The projector at the venue was broken and Paul Fagg suggested I hire one from Cairns to deal with the large curved screen in the cinema venue. I asked Paul if there was any chance that one could be purchased before the event, and he said that was not an option.

As a solution to the projector hire, Zoe went on to suggest several other alternative venues. I needed to hold the event somewhere with a cinema room or features of one as I was screening a documentary 'grassroots' and zooming in the film maker for a presentation and a Q and A session. Also, farmers had been encouraged to bring a soil sample and we were hooking up a microscope to the big screen to look at the microbes in the soil sample.

As mentioned previously, Zoe had still not provided a working budget, I could not argue the point that I had a budget to cover a $200 projector.

All my guest speakers were donating their time (6 speakers) and catering morning tea/lunch was $25 per head. 50 people workshop plus venue hire at $150. The deliverable was valued at more than the expenses I had accrued.

I was shocked that Zoe could suggest a venue change as a solution to the required projector. She then asked me to ring Paul Fagg (Skybury) and tell him that NG was not going to pay for the projector. I was very worried about the outcome of the phonecall. Paul however was very accommodating and offered to cover the cost of the projector.

The following week Rachel called out from her office to ask what had happened about the projector. Zoe answered by saying, 'the CEO just had to put her foot down'.”

[32] Ms Fields said that this was the first incident that didn’t sit well with her regarding Ms Williams’ behaviour towards her. The other incidents she says constitutes bullying are detailed within the HR Dynamics report.

August 2020 – spending incident

[33] Ms Fields said that on 5 August 2020, following her bringing this application, she was emailed by Ms Williams regarding spending on Northern Gulf’s IGA account, Donnolls office supplies account, and corporate credit card. Ms Fields said she had never been questioned regarding her spending on company accounts before. The email read:

“Dear Sally,

I have received the account documentation relating to charges against company credit cards and need to clarify some items that have been charged. As you know I have an obligation to ensure the organisations purchasing policies are adhered to and that all expenditure is in line with our policies and the expectations of our funders. To assist me, can you please provide an explanation of the following items you have recently purchased on behalf of Northern Gulf.

24^th June 2020 at IGA Mareeba:

• 11 lcecream

• Helgas bread

• 500g butter

• 2kg brushed potatoes

• 1kg hommus

• 250g shaved parmesan cheese

• 200g fetta cheese

• 380g vegemite

• 500g bush honey

25^th June 2020 at Gateway hotel:

• 3 schooners beer

• 2 rib fillet

• 1 rump steak

• 1 rib on the bone with seafood topper

26^th June 2020 at Essence Wholefoods:

• Dip - Garlic

• 620g Superkraut Kim Chi

• Book "How C"

• June 2020 at Jackaroo Motel

• Family room plus extra guest

And could you also please explain the purpose of the following order you placed on the Northern Gulf account on 23'd July 2020 at O'Donnells Office Products:

• $90.81 stationary (sic) order for Pencil case, ruler, mechanical pencil and lead, sharpies, document wallets, felt pens, assorted permanent markers, visual arts diary and post-it pad.

Thank-you for your assistance in clarifying these purchases Sally. Can you please provide the requested detail by COB Friday 7th August 2020.

Regards

Zoe”

[34] Ms Fields said that she was hosting a fully catered two-day workshop on 25 and 26 June 2020. She said that she had purchased food for the workshop on the IGA account on 24 June and had bought dinner for Northern Gulf staff on the company credit card. She also booked a room in town on the night between the two days of the workshop.

[35] Ms Fields said she felt that she was being put under a microscope for no good reason, but answered Ms Williams the following day via email, aware that Ms Williams knew she had a workshop which explained all of the spending. Ms Fields conceded that two items were an oversight on her behalf and said she would repay the cost of those items. Ms Fields’ email read:

“Dear Zoe,

As you are well aware, the holistic land management course was run overthe 25th and 26th of June. The expenditure you have received and are enquiring about is in relation to this course.

There were 19 people in attendance, and they needed to be feed during the two day workshop.

I had an out of hours late night due to the course dinner at the Gateway hotel, and did not feel safe to drive home after such a long work day (7am to 10pm), therefore booked a room at the Jackaroo Motel. I also needed to be at the venue to open it by 7.30 am the following morning. This is the same motel that other colleagues stay at and are not questioned about when they are working from Mareeba.

The 3 beers were for the three workshop participants that were interviewed on the Holistic Management course video at the dinner. It is difficult to get people to take in front of a camera., The meals were for the Northern Gulf staff who helped with to facilitate the course and also gathered the comms material. As you will remember, Rachel Smith our communication officer was not granted overtime to capture comms at this dinner event. And the new comms man who had been arranged to facilitate comms at this evening event had quit the week before, only after 3 weeks at Northern Gulf. Leaving me in a fix, with no communication from you that Matt had left the organisation.

I needed to call in favours to ensure this comms material, which is part of my reporting requirement, was collected. If 3 beers and 4 dinners is deemed inappropriate, I will get the staff who ate the dinner to reimburse Northern Gulf, and also, if my dinner is not allowed at appropriate spending I will also reimburse Northern Gulf.

If you have issues with any other of the items on the shopping list, (other than potatoes and ice cream, which are personal items) please let me know which ones you feel are inappropriate spending, and I will look to refund Northern Gulf the money.

I have never been questioned on my spending on items brought for the other several events that I have run since December 2018. It seems rather interesting to me that now you are under investigation by Fair Work, that you are sending me emails of this nature.

All I ask for is for me to be supported in my role of Intensive Agricultural Officer and for the office to be a safe work environment with all staff members treated equally and fairly.

Also to assist me further, as it would seem that you may feel I have broken the companies purchasing policies and/or that of our funding body? Could you support me by letting me know which policies I may have broken so that I can understand my error and not make the same mistake in the future.

Kind Regards,

Sally Fields”

[36] Ms Fields said that Ms Williams decided to call a full investigation on her spending over the workshop and stationery items. Ms Williams wrote an email in reply:

“Hi Sally,

Thanks foryour prompt response. My questions about expenditure are unrelated to any complaints pending investigation. This is the first time questionable expenditure from you has been brought to my attention.

The aspects of the finance policy related to credit card use are below. The full finance manual is in sharepoint for access by all staff. The HR manual (also in sharepoint) also has information about how meal allowances and travel expenses are to be handled.

I am awaiting advice on how to proceed and will let you know the next steps in due course.

Regards,

Zoe.”

[37] Ms Williams informed Ms Fields that she had instructed Ms O’Kane of Corporate Nature to undertake further investigation of the matters raised above. After Ms O’Kane conducted an investigation with Ms Fields, Ms O’Kane sent the following email to Ms Williams on 20 August 2020. The email was then forwarded by Ms O’Kane to Ms Fields on 9 September 2020:

“………Sally has confirmed the following:

24 June 2020 (IGA Mareeba) On Account

Sally admitted that two of the items on this tax invoice were personal (ice cream and 2kg of brushed potatoes) the rest related to workshop catering. She was extremely busy at the time (caring for an unwell son) and at work buying food for a workshop and under normal circumstances would have paid for these two personal items separately. This was an oversite and Sally has requested an employee deduction form to reimburse Northern Gulf RMG.

25 June 2020 (Gateway Hotel) Credit Card

Sally said, at times it is difficult to encourage workshop participants to agree to be on camera. Sally, promised three workshop participants a beer after completing an onscreen interview which they accepted. Sally was unaware that alohol should not be placed on the Corporate Credit Card. She had not seen the Finance Policy Manual which details the correct use of the Corporate Credit Card. Sally normally puts things on the account and does not use the credit card often.

Three meals were purchased for Northern Gulf staff and one for the workshop presenter. The Northern Gulf staff helped Sally undertake the interviews and take photos.

26 June 2020 (Essence Wholefoods) Credit Card

The 620g Sauerkraut Kim Chi was part of the catering supplies for the workshop. The book was a gift for the workshop presenter.

26 June 2020 (Jackaroo Motel) Credit Card

The use of a family room rather than a standard room and an extra guest. I contacted the motel and they confirmed that the motel was almost booked out and Sally was provided with a family room (not at her request). The motel confirmed that two adults and a child stayed in the room. Sally advised that her son who was ill stayed overnight as she had nobody else to care for him. The second adult was a workshop participant who she had invited to stay after she had heard that he was going to be sleeping in a swag outside.

……..

Findings and application of current HR and Finance Policies

• The two personal purchases made on the (IGA Mareeba) account should be reimbursed by Sally through a payroll employee deduction.

• The Gateway Hotel Corporate Credit Card purchases. One meal was for an employee staying overnight and the other related to employees assisting with a workshop and the presenter. These purchases appear to be legitimate. Sally was unaware of the policy around purchasing alcohol (3 x beers) on the Corporate Credit Card. Whether Sally should reimburse Northern Gulf RMG via a payroll employee deduction form is at the discretion of the CEO.

• The Corporate Credit Card purchases from Essence Wholefoods for a workshop (catering and book – gift for workshop presenter) are legitimate.

• The Jackaroo Motel was almost booked out and I was able to confirm that no request was made to upgrade a room from standard to family. The extra person was Sally’s son who she had caring responsibilities for. The cost of an extra person staying should be reimbursed by Sally through an employee deduction form. From a HR perspective whilst Sally had good intentions she puts Northern Gulf RMG at risk by inviting a workshop guest to sleep on the floor in her room. It is difficult to capture everything in a policy, but revisiting the HR bullying and harassment policy and bringing staffs attention to recent media cases helps generate discussion and awareness around such risks and policies.

• Putting workshop items on account whilst on leave at O’Donnell’s Office Products. Sally should be reminded not to work whilst on leave as this can create HR issues, in particular WorkCover.

• Sally cannot recall what the $7 EFTPOS receipt was for but because it was the day before the workshop she concludes that it would have been a workshop consumable. Sally should complete a statutory declaration form to declare this expenditure as the tax invoice has been lost.

• When asked, both Sally and the CN Admin Assistant were not aware of the existence of a Northern Gulf Finance Policy Manual (it is located in SP, Staff Reference, Internal Policies). I would suggest that each staff member undertake an induction of this manual and acknowledge that they have read and understood this policy before using the Corporate Credit Card. This is similar to the HR Policy Manual. It is difficult to hold staff to account if they are not aware of policy detail regarding the use of the Corporate Credit Card. The policies from this manual should also be discussed regularly at all staff meetings so that staff are familiar and perhaps the policies related to credit card use could form part of the credit card transaction form that they complete.

• …..

• …..”

[38] Despite Ms O’Kane’s findings, Ms Williams continued to investigate the book-giving by Ms Fields to the workshop presenter. Ms Fields sent the following email to the workshop presenter on 8 September 2020:

“Hi Brian,

Thanks for your call today.

Wondering if you could let me know the phone number that you were called from regarding the title of the book you were gifted?

Cheers,

Sally”

[39] On 10 September 2020, Ms Fields wrote to Ms O’Kane, copying in Ms Williams:

“…..

……

Could it be noted that Brian Welhburg was contacted this week by a lady named Ali. Phone number [number]. I believe he record the name wrong as this is Zoe Williams’ mobile number.

He was asked what was the name of the book given to him as a thankyou gift from Northern Gulf. As already covered under the Corporate Nature investigation, I both purchased this book (as per receipt), and gave it to Brian. If clarity was still needed as to its title – I would have been more than happy to answer this question. ‘How can I use herbs in my daily life’ Isabell Shipard. I also wrote a personal thankyou to Brian from Northern Gulf on the inside cover.

I hope this investigation is now cleared up and can be finally put to rest pending a $16.49 salary deduction and $7 stat dec that I will finalise next week.

Kind Regards,

Sally Fields”

Investigation and ongoing bullying behaviour

[40] Ms Fields stated that she had ‘major issues’ with Ms Williams, which were shared by Ms Rachel Smith, including:

“

• No support for the teamwork planning process and inconsistency with her management directives.

• Overloading of work

• Different rules for different staff – favouritism towards certain staff members -allowances made for them (unfair treatment) and bias

• Is reactive not proactive

• No solid processes, procedures, guidelines in place, protocols & structure

• She shows lack interest in general & communication on professional level

• Lacks accountability (reprisal \reprimand and of staff members) and consistency on decisions or directives

[513] In any event, a new, clean shared email account was created, and it appears Mr Nicholls had the maturity to not dive deep into Ms Smith’s emails.

[514] Regarding Mr Nicholls’ resignation, Ms Smith has made much ado about not being informed prior to others in the organisation being alerted to Mr Nicholls’ resignation. Ms Smith was not working when Mr Nicholls’ resignation was received. Ms Baker suggested in her findings that Ms Williams could have sent Ms Smith an email to inform her. I consider there is no obligation for Ms Williams to have privately alerted Ms Smith to Mr Nicholls’ resignation; she found out on her return to work. Equally, if Ms Williams had privately messaged Ms Smith, that action would not have been inappropriate. Ms Williams’ action in not alerting Ms Smith prior to other employees learning of Mr Nicholls’ resignation does not constitute an act of Ms Williams behaving unreasonably towards Ms Smith.

[515] Regarding Ms Smith’s allegation that Ms Williams said to her in the bathroom that she did not like Wade, and Vicki does not like Wade, I accept Ms Williams’ evidence that she in fact asked Ms Smith about Wade, as he was a new employee. It was a conversation that should not have occurred in the bathroom, but could not in any way constitute bullying of Ms Smith.

[516] The allegations that Ms Williams does not say good morning to Ms Fields, Ms Smith and Mr Huston are not substantiated. I accept Ms Williams’ evidence that other employees often come to her office and exchange greetings. I do not accept that Ms Williams has gone out of her way to ignore Ms Fields or Ms Smith. I accept Ms Williams’ evidence that Ms Fields and Ms Smith, when working in the office may not exchange greetings with Ms Williams.

Demonstrating poor procedural management in the position of CEO

[517] Ms Williams has been appropriately admonished relevant to the completion of interview paperwork. This matter does not relate to any potential bullying of Ms Fields or Ms Smith.

[518] Regarding not affording Ms Fields a pay increase and the manner of the delivery, I find that it was within Ms Williams’ discretion to decide for or against an increase to Ms Fields. Further, it was a matter discussed with the Board. I accept Ms Williams’ evidence over Ms Fields’, where Ms Fields then broke down and suggested that Ms Williams’ decision was unfair, including that she is a single parent.

[519] It is clear in the expression by Ms Williams to Ms Fields that she feels intimidated by her, that Ms Fields was the party exerting control in the conversation. On Ms Fields’ account, she said to Ms Williams that she considered she had openly tried to sabotage her project. It is an extraordinary thing to say to one’s manager without being able to back it up. Sabotage is a very strong accusation. It must be remembered that Ms Fields was attempting to host an event/workshop at a venue with a cinema screen, but not an operational projector. I consider it was completely appropriate for Ms Williams to insist that the venue provide an operating projector for the cost of the venue hire. Ms Fields’ reaction to Ms Williams’ involvement in the matter borders on the hysterical. Ms Williams acted appropriately in respect of the matter.

[520] It is apparent to me that Ms Fields has insufficient understanding of budgetary constraints, ironically working in an organisation which is in existence because of grant funding. Money is not limitless, and Ms Williams appears to me to have a disciplined approach to her fiscal responsibilities. It does not translate, however, to Ms Fields and Ms Smith who might be better suited or more comfortable working in private enterprise where greater risks may be taken, and more requests for funding or increased budgets can be made and sometimes granted. Where Ms Fields thought the $200 to hire a projector would materialise from is not made clear; presumably through ticket sales. She clearly did not want to upset the proprietor of the venue, however it took Ms Williams to telephone him and insist a projector be available. This was not an unreasonable request, and as it turns out, the proprietor agreed, it seems, without fuss.

[521] Ms Fields’ accusation that Ms Williams attempted to sabotage her event by preventing it going ahead if a working projector was not available is an outrageous and untrue accusation. It is irrational and emotional, and set the platform for how Ms Fields would then feel about Ms Williams from March 2019. Of course, Ms Williams did not know how Ms Fields felt about this matter, and the unfair and untrue allegation of sabotage was not made until Ms Fields learned she was not receiving a pay increase.

[522] I do not accept that Ms Williams had a circle of people whom she treated more favourably. On Ms Fields’ own account, she informed Ms Williams that she did not wish to come to her and preferred to get her work done. I find it more likely that not that Ms Smith also distanced herself from Ms Williams at times. I do not consider that there is sufficient evidence to find that Ms Williams played favourites with Ms Mylrea, Ms Rowing or Mr McLaughlin. Ms Fields’ assertion that Ms Williams attends upon Mr McLaughlin because she is attracted to him is quite an extraordinary assertion to make. Ms Fields is unable to provide any evidence of preferable treatment towards Mr McLaughlin. Ms Fields’ assertion is therefore scurrilous, and without proper regard to Mr McLaughlin or Ms Williams’ personal circumstances and relationships with partners, of which I know nothing.

Demonstrating inappropriate conduct in the position of CEO

[523] The strongest and most disturbing allegation made by Ms Fields and Mr Huston was that Ms Williams deliberately sabotaged $100,000 of funding by “sitting” on grant paperwork for approximately four weeks and not submitting by the deadline. Nothing could be further from the truth. As is patently clear in the evidence before the Commission, Mr Huston inadvertently failed to share the grant paperwork with others and had to be prompted by the funder to inquire if the business was going to apply. He sent the material through late at night.

[524] Fortunately, Ms Williams accessed her email late at night, saw the email, and did the most appropriate thing she could do; request a short extension. She scurried around the next day to obtain signatures, allowing the organisation to apply. Ms Williams’ conduct was exemplary, mopping up after Mr Huston’s unfortunate error. How Ms Fields continues to criticise Ms Williams over this matter is astounding.

[525] I accept Ms Williams’ evidence relevant to the incident between Ms Mylrea and Mr Huston where she considered that the facts were not in dispute and mediation was warranted, acknowledging Ms Mylrea had engaged in inappropriate behaviour.

[526] Regarding Ms Fields’ complaint that Ms Williams had not attended any of her events, it appears that Ms Fields did not request Ms Williams do so. It is clear that Ms Fields harboured resentment of Ms Williams from as early as March 2019.

[527] Relevant to Ms Fields’ complaint that Ms Williams was strange on a zoom meeting in May 2020 and missed Ms Fields and Ms Smith in the report summaries, I accept Ms Williams’ evidence that on zoom meetings not every person is visible, and sometimes an attendee is represented by a tile, perhaps with initials. I consider Ms Williams’ conduct to be inadvertent and not deliberate.

Facilitating a gossiping and intimidating environment amongst staff in the position as CEO

[528] If Ms Williams did engage in a gossiping conversation with Ms Rowling on 29 January 2020, it was inappropriate. It does not involve Ms Williams repeatedly behaving unreasonably towards Ms Fields or Ms Smith.

[529] Regarding Ms Rowling’s purported rude and unprofessional message to Ms Smith on group messenger, I consider it appropriate for Ms Smith to have raised her concerns to Ms Williams. I am unclear what the message from Ms Rowling was. Ms Williams failed in her duties to address Ms Smith’s concerns by suggesting that Ms Rowling must be having a bad day, instead of looking into Ms Smith’s concerns. I do not, however, consider that she behaved unreasonably towards Ms Smith. It was arguably neglectful to not conduct some investigation into the matter, but I do not consider it was behaviour towards Ms Smith. Ms Williams should be mindful to make further inquiries or refer the matter to Corporate Nature for further inquiry in the event an employee makes a genuine and material complaint.

Other matters

[530] The repeated request by Ms Fields and Ms Smith to have Northern Gulf pay for a table of 10 to attend a Chamber of Commerce dinner demonstrates, in my view, the petulance of Ms Fields and Ms Smith and their failure to accept a considered and final response of Ms Williams. They didn’t accept Ms Williams’ answer, carrying on like small children over the issue, with Ms Smith even demanding an audience of Directors of the Board over the issue. Quite reasonably, Ms Williams agreed to pay for Ms Fields and Ms Smith to attend, but it seems they craved far more than that.

[531] Ms Williams took a considered and reasonable view that Northern Gulf would not benefit, nor could it afford $1000 for a table of 10 to attend the dinner. Attendance at such an event does not even come close in comparison to a team members’ presentation in front of industry leaders and government representatives. How Ms Fields became angry at Ms Williams is a true reflection of where the problems in the relationship between them lie. Ms Smith’s attempts to go over Ms Williams’ head by complaining to Directors is a serious display of hostility.

[532] Regarding Ms Baker’s decision to survey other staff members to invite commentary on Ms Williams’ performance and conduct, I consider it was quite a risky move. It did, however, reveal unbiased commentary from unidentified staff members. Some of that commentary was minimally critical of some of Ms Williams’ performance, but not significantly so. Interestingly, some of the commentary revealed criticism of a trio of employees who, in one employee’s view, were acting inappropriately, “bad mouthing” Ms Williams. Where Ms Fields and Ms Smith are critical of Ms Baker’s survey of employees, and feel that Ms Baker attacked them in her Investigation Report, Ms Fields and Ms Smith ought to have thought carefully about being careful for what one wishes. Where they had a direct audience before Ms Baker, making heartfelt accusations against Ms Williams, some of which I have found to be completely untruthful relevant to sabotage, equally, other employees backed Ms Williams. One will never know if the trio of employees the person complained of constitute Ms Fields, Ms Smith and Huston, however it is not an unreasonable stretch to assume so.

[533] Ms Baker noted in her Investigation Report that Ms Fields and Ms Smith appeared to have a long-standing opinion of Ms Williams stemming from her initial appointment as CEO. I agree with Ms Baker’s findings on this issue, and am surprised that Ms Fields and Ms Smith would take such an antagonistic view of Ms Williams, and particularly her qualifications. Ms Smith was very direct in her evidence in that she does not respect Ms Williams, as she doesn’t hold a degree in Ms Smith’s field. Ms Smith questions how she is qualified to make a judgment on the process or how long it would take for Ms Smith to conduct her duties.

[534] This is just one example where I consider Ms Smith is immature, and demonstrating inappropriate respect for Ms Williams. Leaders do not necessarily have the qualifications or industry experience as many or some of their subordinates; they do not need to. That is why the subordinates are employed. Ms Smith is employed in the field of communications; not engineering, science or medicine. She has a relatively modest tertiary qualification. In fact, Ms Williams rightly has been critical of Ms Smith’s grammatical and proofing skills. One would think Ms Smith would perfect her craft before calling her CEO out on her purported lack of skill in the area.

[535] I do consider that both Ms Fields and Ms Smith have angled for some time to have an intermediate manager between themselves and Ms Williams. I have no doubt that Ms Smith made such a suggestion, hoping to have Mr Huston in the role. This was rejected. It is, quite simply, not their call to make, but one that is being considered by the Board.

[536] Ms Fields’ diary notes from mid-2019, declaring Ms Williams a control freak because Ms Fields could not view budgets for her project demonstrate an obnoxious, insulting and emotional reaction from Ms Fields towards Ms Williams.

[537] Regarding Ms Fields’ request for Ms Parker to be engaged more often than she is, I accept Ms Baker’s findings that it is a reasonable business decision to be made by the CEO. Ms Fields’ request is no doubt largely based on her work requirements; she needs assistance. She would be cautioned, however, by urging her employer to more regularly employ somebody who is purportedly her friend, and use as a basis for part of the engagement the fact that Ms Parker was underworked during 2020 as a result of COVID-19 in her primary employment.

[538] Ms Fields’ disappointment in having to articulate to Ms Williams the work Ms Parker will perform before approval is given to engage her demonstrates a lack of respect towards Ms Williams. If the CEO of the organisation employed by you wishes for you to demonstrate a case for additional labour, the information should be provided, whether you think the CEO knows the information requested. It is not an unreasonable request made by Ms Williams, particularly as Ms Williams reports to a Board who may, at any time, require such information. Ms Fields’ insinuation that the request is an unnecessary or unreasonable burden on her is not accepted.

[539] Regarding Ms Williams’ scrutiny as to the purchases made by Ms Fields on the company credit card, I wish to say the following:

(a) Ms Fields should always assume her spending on the company credit card will be reviewed, whether it has been in the past or not;

(b) It is Ms Fields’ obligation to inform herself of her employer’s policies relevant to credit card use;

(c) Ms Williams appropriately made inquiries of Ms Fields relevant to all of her spending relevant to the workshop, hotel meals and accommodation, and I consider her inquiries were not as a result of being involved in this matter before the Commission;

(d) Ms Fields clearly made some poor choices, and it is appropriate she is made aware of the poor choices made by her without her suggesting that there is a witch hunt;

(e) I accept that Ms Fields did not know alcohol should not have been purchased on the credit card – she now does;

(f) While being considerate and generous in affording a workshop attendee a place to sleep in her room with her child, instead of the man sleeping in a swag outside, Ms Fields could have placed herself and her child at some risk if the man had decided to commit an act of indecency, sexual assault or assault. I have no idea who the man is (there should be no slur against the man), and the risk is, of course, low, but it is a foreseeable risk that Ms Fields should have had regard to;

(g) It is inexplicable how Ms Fields could conduct a shop for the workshop, legitimately purchasing the items she considered that she needed, while also purchasing ice cream and potatoes, a private purchase. I accept that she explained that she was busy, and it was an oversight, however it is an extremely important obligation when spending an employer’s money not to purchase items for personal use. The use of dividers in the supermarket is an elementary exercise; one purchases the business products using the company credit card, uses a divider for the personal items and then privately pays for the personal items.

[540] I consider it appropriate for Ms Williams to have required Ms O’Kane to investigate these matters, given Ms Williams was a person named in these proceedings by that time. Regrettably, Ms Fields carried on about the investigation, demonising the inquiry when she did not come with clean hands.

[541] I do consider, however, Ms Williams’ continued inquiry into the legitimacy of the purchase of the book to constitute behaviour which is unreasonable towards Ms Fields and such behaviour creates a risk to Ms Fields’ health and safety. The book was a legitimate purchase, and I consider that Ms Williams had enough information before her to satisfy herself of this fact. Her continued investigating, contacting Mr Welhberg was unreasonable, unnecessary and targeted. I do not consider that it was reasonable management action carried out in a reasonable manner.

[542] Relevant to Ms Smith’s failure to return to work in the office following the period where all employees worked from home, I consider that the wording in the email sent by Ms Williams was not a clear directive to return to the office. It read:

“Given that we have had no cases among staff members it is reasonable that staff who wish to return to working in the offices may do so, provided appropriate social distancing measures are adhered to.”

[543] I consider a reasonable person would consider that to mean that if the person wished to return to the office they may do so; not that it was a directive to do so. Accordingly, I do not consider that Ms Smith failed to follow a direction. If Ms Williams believed she issued a direction to all employees, I consider that she was mistaken. I do not consider that Ms Williams acted unreasonably towards Ms Smith on this issue given what I have determined was a mistaken belief by Ms Williams.

[544] I am satisfied that Ms Williams’ requirements to have Ms Smith work from the office on an ongoing basis is a genuine and appropriate business decision given the work performed by Ms Smith.

[545] Ms Williams sought to address Ms Fields’ hours of work in early June 2020, informing her that she appeared to be stressed and would benefit from time off work. Ms Fields rudely informed her manager, “My daily routine is a matter of personal choice.” When Ms Fields employs herself, her daily routine is a matter of personal choice. When she is employed she is at the lawful and reasonable direction of her employer.

[546] It appears to me that Ms Fields now understands the inappropriateness of determining that she can work, for example, at 4:00am. She is not permitted to do, as it does not sit within her span of ordinary hours. I consider her response to Ms Williams in early June 2020 to be insubordinate and a deliberate attempt to intimidate Ms Williams into believing that she could not issue lawful and reasonable directions to Ms Fields.

[547] I find it curious that the following evidence was given by the Applicants:

Ms Fields:	Our current workplace issue is not personal. It is a lack of professionalism, integrity and on-going bullying that needs to be addressed.
Ms Smith:	My lodgement of my workplace grievances against Mrs Williams have not come from a malicious or personal attack against her, but rather one of self-value, desire for respect and the need for a fair and safe work environment for not only myself but for my colleagues.

[548] The very act of making an anti-bullying application against a work colleague constitutes a personal act against the person named. I accept that it is very unpleasant to be involved in litigation, for the Applicants and for Ms Williams. Ms Fields and Ms Smith wish for Ms Williams to be declared a person who bullies them at work. It is, indeed, a personal attack if the person is not found to have bullied them. If the person named is found to have bullied an applicant, then while it is still a personal act against them in bringing the application, the application in that case is made on reasonable grounds.

[549] I consider that Ms Fields, in particular, has made unfounded and untrue attacks on Ms Williams, declaring she has engaged in sabotage. Where Ms Fields declares it is not personal between her and Ms Williams, she is incorrect; Ms Fields has made it personal. This is particularly true relevant to the assertion by Ms Fields and Ms Smith that Ms Williams has engaged in preferential treatment of an employee as she is attracted to him – an assertion without evidence.

Conclusion

[550] In order to make final orders in an anti-bullying application, there are two requirements under s.789FF(b) of the Act. The Commission must first find that Ms Fields and Ms Smith have been bullied at work by an individual or a group of individuals and secondly that there is a risk that Ms Fields and Ms Smith will continue to be bullied at work by the individual or group concerned.

[551] Once these two requirements have been satisfied, s.789FF confers on the Commission a broad, discretionary power to make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent an employee from being bullied at work.

[552] There is no dispute that the employer is a constitutionally-covered business, and it is also accepted by the parties in this case that the alleged conduct, if it occurred, took place whilst Ms Fields and Ms Smith were at work.

[553] The application of s.789FD has been discussed in various decisions of the Commission where it has been held that the terms of s.789FD are to be applied objectively and that s.789FD(2) ‘reasonable management action carried out in a reasonable manner’ is not so much an ‘exclusion’ but a qualification which reinforces that bullying conduct must of itself be unreasonable. 41 It also emphasises the right of management to take reasonable management action in the workplace.42

[554] The issues in dispute in this case are therefore whether Ms Williams has repeatedly behaved unreasonably towards Ms Fields and Ms Smith, and whether any such behaviour has created a risk to their health and safety. In considering whether there has been repeated unreasonable behaviour the Commission needs to consider whether any of the conduct was reasonable management action taken in a reasonable manner.

[555] In Mac v Bank of Queensland Ltd, 43 Hatcher VP provided the following examples of conduct “which one might expect to find in a course of repeated unreasonable behaviour that constituted bullying at work” as including:

“… 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.” 44

[556] In Edwards v E S Trading Co (Discounts) Pty Ltd (t/as E & S Kitchen, Bathroom Laundry), 45 an employee’s genuinely held belief that she was being bullied at work was insufficient to enliven the Commission’s jurisdiction. The conduct must not only be perceived as being bullying, but that belief “must be reasonable in the sense that it is able to be supported or justified on an objective basis.”

[557] In Ms SB, Hampton C observed that:

“whether management action is reasonable requires an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time”. 46

[558] The Commissioner also relevantly stated:

“The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was “more reasonable” or “more acceptable”. In general terms this is likely to mean that:

• management actions do not need to be perfect or ideal to be considered reasonable;

• a course of action may still be “reasonable action” even if particular steps are not;

• to be considered reasonable, the action must also be lawful and not be “irrational, absurd or ridiculous”;

• any “unreasonableness” must arise from the actual management action in question, rather than the applicant’s perception of it; and

• consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances.” 47

[559] I have determined that on one occasion at [541] while Ms Fields was at work, Ms Williams behaved unreasonably towards her and that behaviour created a risk to Ms Fields’ health and safety. There is only on occasion, and therefore I find that Ms Williams has not repeatedly behaved unreasonably towards Ms Fields. Accordingly, I find that Ms Fields has not been bullied at work pursuant to s.789FD(1) of the Act.

[560] I have determined that while Ms Smith was at work Ms Williams has not behaved unreasonably towards her. Accordingly, I find that Ms Smith has not been bullied at work pursuant to s.789FD(1) of the Act.

[561] I have carefully considered Ms Baker’s Investigation Report and having regard to all of the evidence before the Commission, I concur with her views that on the balance of probabilities, most of the complaints raised by Ms Fields and Ms Smith appear to be based on a personal dislike and/or lack of respect for Ms Williams. If it were necessary to do so, I would consider the two false allegations of sabotage made by Ms Fields to constitute misconduct.

[562] Further, I consider that the Applicants would prefer not to have to report to Ms Williams and have made their respective applications to attempt to force the Board to make a decision to remove the direct reporting line between them and Ms Williams. This is a decision only the Board can make.

[563] I consider the recommendations made by Ms Baker to the Board relevant to any weaknesses Ms Williams might have to be helpful and insightful to permit Ms Williams to work on those issues.

[564] I note the Investigation Report recommended that the parties be offered facilitated mediation to address the interpersonal conflicts that exist between them. I support that recommendation.

[565] Because I am not satisfied that Ms Fields or Ms Smith have been bullied at work as alleged, there is no power to make the orders sought, and the applications are dismissed. Orders giving effect to this will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

Fields S, Applicant.
Smith R, Applicant.

Bosel J, with leave for the Respondent.

Hearing details:

20 October 2020, by Video on Microsoft Teams.
21 October 2020, by Video on Microsoft Teams.

Printed by authority of the Commonwealth Government Printer

1 Witness statement of Ms Fields filed 10 September 2020; Reply witness statement of Ms Fields filed 14 October 2020.

2 Ibid.

3 Witness statement of Ms Smith filed 10 September 2020; Annexure 22.d.3.

4 Witness statement Mr Holmes, filed as an annexure to the statement of Ms Smith filed 10 September 2020.

5 Witness statement of Ms Stevens, filed as an annexure to the statement of Ms Smith filed 10 September 2020.

6 Witness statement of Mr Nicholls, filed as an annexure to the statement of Ms Smith filed 10 September 2020.

7 Witness statement of Ms Miller, filed as an annexure to the statement of Ms Smith filed 10 September 2020.

8 Witness statement of Mr Huston, filed as an annexure to the reply statement of Ms Smith filed 14 October 2020.

9 Employer and Person Named Outline of Submissions at 6(b); Statement of Zoe Williams at Annexure ‘ZLW2’ pages 60 and 65.

10 Employer and Person Named Outline of Submissions at 6(i); Statement of Deanne Baker at [10]; Statement of Zoe Williams at [30]-[31].

11 Employer and Person Named Outline of Submissions at 6(j); Statement of Deanne Baker at Annexure ‘DB7’.

12 Employer and Person Named Outline of Submissions at 6(l); Statement of Zoe Williams at [45], [46], [56], [79], and [98]-[103].

13 Ferguson v Commonwealth Bank of Australia [2012] AATA 718 at [118].

14 Employer and Person Named Outline of Submissions at 6(o)(vi); Statement of Deanne Baker at Annexure ‘DB5’.

15 [2015] FWC 6602 and [2016] FWC 763.

16 Witness statement of Ms Williams filed 6 October 2020.

17 Ibid "ZLW6".

18 Ibid "ZLW7".

19 Ibid "ZLW8".

20 Ibid "ZLW9".

21 Ibid "ZLW10".

22 Ibid "ZLW11".

23 Ibid "ZLW12".

24 Ibid "ZLW13".

25 Ibid "ZLW14".

26 Ibid "ZLW15".

27 Ibid "ZLW16".

28 Ibid "ZLW18".

29 Ibid "ZLW12".

30 Ibid "ZLW24".

31 Ibid "ZLW26".

32 Ibid "ZLW27".

33 Ibid "ZLW29".

34 Witness statement of Ms Baker filed 6 October 2020.

35 Ibid “DB3”.

36 Ibid “DB4”.

37 Ibid “DB6”.

38 Ibid “DB8-11”.

39 Witness statement of Ms Gunn filed on 6 October 2020.

40 Witness statement of Ms Weber filed on 6 October 2020.

41 Mac v Bank of Queensland Ltd[2015] FWC 774 at [95].

42 GC [2015] FWC 6988 at [47], [52] and Amie Mac v Bank of Queensland Limited and others[2015] FWC 744 at [48], [88].

43 [2015] FWC 744.

44 Ibid at [99].

45 [2016] FWC 8223 at [61].

46 [2014] FWC 2104 at [49].

47 Ibid at [51].

Ms Sally Fields & Ms Rachel Jayne Smith v Ms Zoe Williams; Northern Gulf Resource Management Group

[2021] FWC 2724

13 MAY 2021

DECISION