Ms Susan Purcell v Ms Mary Farah and Mercy Education Ltd T/A St Aloysius College

[2016] FWC 2308

[2016] FWC 2308

FAIR WORK COMMISSION

DECISION

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

Ms Susan Purcell
v
Ms Mary Farah and Mercy Education Ltd T/A St Aloysius College
(AB2015/261)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 11 JULY 2016

Application for an order to stop bullying; whether applicant bullied at work; unreasonable conduct; reasonable management action; whether created risk to health and safety; some of the conduct alleged is repeated unreasonable behaviour towards the applicant that created a risk to the applicant’s health and safety; facilitated or mediated meetings proposed before consideration of any Orders.

Introduction

[1] It is a sad indictment on the capacity of two education professionals and the educational institution in which they are employed, that to resolve an obviously tense interpersonal relationship involving some mutual animus, resort must be had to this tribunal and the anti-bullying provisions of the Fair Work Act 2009 (Act). But, that it seems is the way of things, with workplace combatants all too keen to cede to a third party the capacity to resolve conflict, which with a modest amount of goodwill, some introspection and reflection, ought be capable of resolution by the combatants themselves. In my respectful opinion, this is a case in point.

[2] Ms Susan Purcell is the applicant in this proceeding and is a teacher employed by Mercy Education Ltd T/A St Aloysius College (Mercy Education).

[3] On 25 May 2015, Ms Purcell made an application for an order to stop bullying pursuant to s.789FC of the Act. Ms Purcell would like the Fair Work Commission (Commission) to make a finding and issue a statement to the effect that she has been bullied at work by Ms Mary Farah, the first respondent and Principal of St Aloysius College (College).

[4] The application sets out various incidents of alleged unreasonable behaviour or conduct engaged in by Ms Farah on which Ms Purcell relies to make good her allegation that she was bullied at work.

[5] Ms Purcell was first employed by Mercy Education in 1994. She left in 1995 and returned in 1998, and has been employed as a teacher by Mercy Education at the College ever since. 1 Ms Purcell was appointed as the VCAL Co-ordinator in 2010 but ceased this role in 2015.2 Ms Purcell was elected as an Occupational Health and Safety Representative (OH&S Representative) in May 2013.3

[6] Ms Farah was appointed the Principal of the College in 2013. 4 She had a mandate from the Board of Mercy Education to effect change and to arrest a declining enrolment at the College. As is commonly the case, some staff were resistant to change and preferred the status quo. Ms Purcell gave evidence that she became increasingly concerned about Mercy Education’s bullying policy shortly after Ms Farah commenced as Principal and, during her first Occupational Health and Safety (OH&S) meeting on 28 May 2013, she raised the issue of bullying and the need to update the policy.5 Shortly after this meeting, Mr Brian Collins, former Business Manager of the College, resigned.6

[7] A new Business Manager, Mr Andrew Coates, was appointed by Mercy Education to the College. On 28 September 2013, Mr Coates attended an OH&S meeting and, at the meeting, agreed to review the bullying policy by the end of the year. 7 However, this did not eventuate and by 2014, Ms Purcell became very concerned about the bullying policy. She again raised the issue at an OH&S meeting on 1 April 2014.8

[8] Ms Purcell contends that, at that stage, there was no Deputy Principal at the College because Ms Anne Henderson had resigned from that position in 2013 after Ms Farah had been appointed. Ms Anne Henderson continued to be listed in the outdated bullying policy as the complaints officer. The result of this, according to Ms Purcell, was that there was neither a Deputy Principal nor a complaints officer to whom staff could raise any concerns they may have regarding bullying, and this was of particular concern to Ms Purcell because her evidence was that most complaints being made to her were about Ms Farah. 9

[9] Ms Purcell did not bring this issue up again until the end of 2014, but according to her statement the bullying policy was revised and re-issued in 2015 after she filed complaints in December 2014. 10

[10] From approximately January 2015 to early July 2015, Ms Purcell was on long service leave (LSL). She returned from LSL on the understanding that the current Deputy Principal, Ms Rachel Valentine, would deal with any employment issues on behalf of Ms Farah as an interim measure on account of this application.

[11] Ms Purcell has identified a number of incidents occurring from late 2013 and continuing after her return from LSL in mid-2015 which she maintains were together repeated unreasonable behaviour by Ms Farah towards her. Each of the incidents is discussed later in this decision. The case advanced by Ms Purcell also contained allegations of conduct by Ms Farah towards other staff members, and allegations about Mr Coates’ conduct towards Ms Purcell and others. I have not dealt with these allegations in determining this part of the proceeding save where regard to these allegations was necessary in the context of the principal allegations of conduct by Ms Farah towards Ms Purcell. I have also not taken into account the evidence of the telephone conversation between Ms McCallum and Ms Purcell on 28 August 2015 as on the whole I found the evidence of what was said, the nature of the notes made and how much of the conversation was recorded, as unreliable. Although I have not referred to every portion of the evidence that has been led in this lengthy proceeding, I have considered all of it. However, for reasons indicated above, I have not taken into account some of the evidence, during this phase of the proceeding. I also note that Mercy Education has, unless otherwise stated, adopted and relied upon the submissions made by Ms Farah. 11

Summary

[12] I have concluded that four of the incidents about which Ms Purcell complains, taken together, amount to repeated unreasonable behaviour by Ms Farah towards Ms Purcell, the effect of which caused Ms Purcell distress and thereby created a risk to Ms Purcell’s mental health. Consequently, Ms Purcell was bullied at work. My reasons for that conclusion follow below.

Jurisdiction

[13] Section 789FF confers on the Commission a broad discretion to make any order it considers appropriate directed at preventing a worker from being bullied at work by an individual or group of individuals.

[14] That I have jurisdiction to deal with the application is not in contention in the sense that the application for an order or orders under s.789FF is a valid one. Ms Purcell is a worker for the purposes of s.789FC of the Act, in that she is an employee of Mercy Education which operates a business known as St Aloysius College. There is no dispute that this business is a constitutionally-covered business within the meaning of s.789FD of the Act.

[15] There is also no suggestion that Ms Purcell does not reasonably believe that she has been bullied at work.

[16] In Mac v Bank of Queensland Limited and Others, 12 Hatcher VP undertook a detailed analysis of the jurisdiction created by Part 6–4B of Chapter 6 of the Act and its application. The Vice President observed as follows:

“[74] The circumstances in which the Commission’s power to make anti-bullying orders is enlivened is set out in s.789FF of the FW Act as follows:

(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.

[75] It can be seen that s.789FF establishes three prerequisites to the exercise of the power to make anti-bullying orders:

(1) A worker must have made an application under s.789FC.

(2) The Commission must be satisfied that Ms Purcell worker has been bullied at work by an individual or group of individuals.

(3) The Commission must be satisfied that there is a risk that Ms Purcell worker will continue to be bullied at work by the individual or group of individuals.

[76] The first prerequisite - which I would read as meaning “in accordance with s.789FC” - effectively imports the requirement in s.789FC(1) that an application for an order under s.789FF may only be made by “A worker who reasonably believes that he or she has been bullied at work”. “Worker” for the purposes of Part 6-4B is defined in s.789FC(2) to have the same meaning as in the Work Health and Safety Act 2011 (WHS Act), but does not include a member of the Defence Force. Section 7 of the WHS Act defines what a worker is for the purpose of the WHS Act. The main part of that definition is contained in s.7(1), which provides:

(1) A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as:

(a) an employee; or

(b) a contractor or subcontractor; or

(c) an employee of a contractor or subcontractor; or

(d) an employee of a labour hire company who has been assigned to work in the person's business or undertaking; or

(e) an outworker; or

(f) an apprentice or trainee; or

(g) a student gaining work experience; or

(h) a volunteer; or

(i) a person of a prescribed class.

[77] Other subsections of s.7 supplement the definition: s.7(2) includes identified officers and employees of the Australian Federal Police; s.7(2A) includes members of the Defence Force; s.7(2B) includes persons holding or acting in offices created by a law of the Commonwealth or a law of a Territory (other than the ACT, the Northern Territory and Norfolk Island); s.7(2C) includes persons who constitute or act as the person constituting a public authority; s.7(2D) includes persons who are or act as a member or deputy member of a public authority; s.7(2E) includes persons who are or act as a member or deputy member of a body established by or under an Act for a public authority for a purpose associated with the performance of the functions of the public authority; and s.7(2F) includes persons of a class who engage in the activities or perform the acts specified in s.7(2G) and who are declared by the Minister by an instrument in writing to be workers for the purposes of the WHS Act. These extensions of the definition in s.7(1) of the WHS Act would all be caught by the cross-referential provision in s.789FC(2) of the FW Act and thus be subject to Part 6-4B of the FW Act except members of the Defence Force.

[78] One difficulty with the drafting of Part 6-4B lies in s.789FB, which provides that “In this Part, employee and employer have their ordinary meanings”. The words “employee” and “employer” are nowhere used in the text of Part 6-4B (except in s.789FB itself), and the importation of the WHS Act definition of “worker” makes it clear that Part 6-4B is not confined in its operations to employment relationships, but rather seeks to embrace all those who might be performing work for a business or undertaking in whatever capacity. Striving to give s.789FB some work to do, it may perhaps be a confirmatory provision that, insofar as Part 6-4B applies to employees and their employers, it is not confined by the definitions of “national system employee” and “national system employer” in ss.13 and 14 respectively of the FW Act.

[79] An applicant under s.789FC must not only be a worker but must be one who “reasonably believes that he or she has been bullied at work”. The expression “reasonable belief” and similar expressions are utilised in a wide variety of contexts by the statutory and common law. It is clear from cases decided in those differing contexts that not only must the requisite belief be actually and genuinely be held by the relevant person, but in addition the belief must be reasonable in the sense that, objectively speaking, there must be something to support it or some other rational basis for the holding of the belief and it is not irrational or absurd. For example, in the context of the Federal Court rules concerning applications for preliminary discovery, which require the holding by Ms Purcell of a reasonable belief that that there may be a right to obtain relief against another person not presently a party to a proceeding in the Court, it has been held that “there must be some tangible support that takes the existence of the alleged right beyond mere ‘belief’ or ‘assertion’ by Ms Purcell”  or that “there must be some evidence that inclines the mind towards the matter of fact in question”. In relation to a NSW statutory provision prohibiting legal practitioners from providing legal services on a claim or defence of a claim for damages unless the practitioner reasonably believed that the claim or defence had reasonable prospects of success, it has been held that the practitioner’s belief that there was material which justified proceeding will not be reasonable if it “unquestionably fell outside the range of views which could reasonably be entertained”. In relation to the concept of a “reasonable hypothesis”, it has been held that in order to be a reasonable one a hypothesis must be rationally based and possess some degree of acceptability or credibility, and must not be irrational, absurd or ridiculous. These examples all illuminate the way in which the Commission should approach the task of considering whether Ms Purcell worker has the necessary reasonable belief such as to confer standing to make an application under s.789FC.

[80] It can be anticipated that in most cases it will not be in dispute that Ms Purcell reasonably believes he or she has been bullied at work such as to permit the making of an application under s.789FC(1), and the Commission will be able to find without difficulty that the first prerequisite in s.789FF(1) is satisfied. I cannot identify any decided anti-bullying case to date in which the making of an application under s.789FC(1) was put in issue. However in this case the respondents have, in their Points of Defence, contended that Ms Mac’s belief that she had been bullied at work was not, objectively, reasonable, and accordingly her application was beyond the Commission’s jurisdiction. Accordingly it is necessary for me to give more detailed consideration to this issue.

[81] The second prerequisite, as earlier stated, requires the Commission to be satisfied that Ms Purcell worker has been “bullied at work” by an individual or a group of individuals. The expression “bullied at work” is defined in s.789FD as follows:

789FD When is a worker bullied at work?

(1) A worker is bullied at work if:

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

(i) an individual; or

(ii) a group of individuals;

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

(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.

[82] A number of elements in the above definition may be identified. The first element is that the relevant bullying behaviour towards Ms Purcell worker must occur while the worker is “at work in a constitutionally-covered business”. The concept of a “constitutionally-covered business” is the mechanism by which Part 6-4B is related to heads of Commonwealth legislative power in the Constitution. Its meaning is explained in s.789FD(3). That subsection requires that a “person conducts a business or undertaking” within the meaning of the WHS Act. The definition of that expression is contained in s.5 of the WHS Act. It is not necessary to set it out here. Section 789FD(3) also requires either that the person conducting the business or undertaking be of one of the types set out in s.789FD(3)(a), or that the business be conducted principally in any of the types of locations specified in s.789FD(3)(b).

[83] The difficult question of when a worker is “at work” in a constitutionally-covered business was recently considered at length in the Full Bench decision in Bowker v DP World Melbourne Limited & Ors.  The conclusions reached by the Full Bench were as follows:

‘[48] We have concluded that the legal meaning of the expression ‘while the worker is at work’ certainly encompasses the circumstance in which the alleged bullying conduct (ie the repeated unreasonable behaviour) occurs at a time when the worker is ‘performing work’. Further, being ‘at work’ is not limited to the confines of a physical workplace. A worker will be ‘at work’ at any time the worker performs work, regardless of his or her location or the time of day. As we have mentioned, the focal point of the definition is on the worker (ie Ms Purcell). The individual(s) who engage in the unreasonable behaviour towards the worker need not be ‘at work’ at the time they engage in that behaviour.

[49] While a worker performing work will be ‘at work’ that is not an exhaustive exposition of the circumstances in which a worker may be held to be at work within the meaning of s.789FD(1)(a). For example, it was common ground at the hearing of this matter that a worker will be ‘at work’ while on an authorised meal break at the workplace and we agree with that proposition. But while a worker is on such a meal break he or she is not performing work. Indeed by definition they are on a break from the performance of work. It is unnecessary for us to determine whether the provisions apply in circumstances where a meal break is taken outside the workplace.

[50] In our view an approach which equates the meaning of ‘at work’ to the performance of work is inapt to encompass the range of circumstances in which a worker may be said to be ‘at work’.

[51] It seems to us that the concept of being ‘at work’ encompasses both the performance of work (at any time or location) and when the worker is engaged in some other activity which is authorised or permitted by their employer, or in the case of a contractor their principal (such as being on a meal break or accessing social media while performing work).’

[84] The Full Bench rejected a submission that conduct occurs “at work” merely because it has a substantial connection to work.  It went on to recognise the difficulty in delineating the boundaries of what is meant by the words “at work” in s.789FD(1)(a), saying that that the approach to this should be developed over time on a case by case basis, and then said:

‘[53] In most instances the practical application of the definition of ‘bullied at work’ in s.789FD will present little difficulty. But there will undoubtedly be cases which will be more complex, some of which were canvassed during the course of oral argument. For example, a worker receives a phone call from their supervisor about work related matters, while at home and outside their usual working hours. Is the worker ‘at work’ when he or she engages in such a conversation? In most cases the answer will be yes, but it will depend on the context, including custom and practice, and the nature of the worker’s contract.’

[85] This case raises a complex issue of this nature, since Ms Mac’s Points of Claim allege that a number of communications between certain of the respondents and herself (or her solicitors) after she went off work because of illness constituted instances of bullying behaviour, and the respondents in their Points of Defence deny that this constituted bullying at work because, amongst other reasons, Ms Mac was not at work when the bullying behaviour occurred. I will deal with this issue later to the extent that it is necessary to do so.

[86] The next element in the s.789FD definition is that an “individual” or “a group of individuals ... repeatedly behaves unreasonably towards the worker or a group of workers of which the worker is a member ...”. Under s.2B of the Acts Interpretation Act 1901 (Cth) the word “individual” in an Act refers to a natural person unless a contrary intention is indicated. There is nothing in section 789FD or any provision of Part 6-4B which suggests that bullying at work is something which can be engaged in by a corporation. There is no stated restriction upon which individuals may engage in the relevant behaviour; as was pointed out in Bowker:

‘[31] ...The individuals engaging in the unreasonable behaviour need not be workers, for example they could be customers of the business or undertaking in which Ms Purcell works. Nor do the relevant statutory provisions contain any requirement for these individual(s) to be ‘at work’ at the time they engage in the unreasonable behaviour which Ms Purcell contends constitutes bullying.’

[87] The requirement for repeated unreasonable behaviour is clearly a core element of Part 6-4B. The Explanatory Memorandum to the Fair Work Amendment Bill 2013 through which Part 6-4B was enacted discloses that the definition of bullying at work in s.789FD, including this element, reflected a recommendation for such a definition contained in the report of the House of Representatives Standing Committee on Education and Employment“Workplace Bullying - We just want it to stop”. In referring to that report, the Explanatory Memorandum said:

‘109. The Committee went on to note that ‘repeated behaviour’ refers to the persistent nature of the behaviour and can refer to a range of behaviours over time and that ‘unreasonable behaviour’ is behaviour that a reasonable person, having regard to the circumstances may see as unreasonable (in other words it is an objective test). This would include (but is not limited to) behaviour that is victimising, humiliating, intimidating or threatening.’

[88] In Re SB, the Commission (Hampton C) discussed the requirement for repeated unreasonable behaviour in the following terms:

‘[41] Having regard to the approach urged by the authorities, the concept of individuals ‘repeatedly behaving’ unreasonably implies the existence of persistent unreasonable behaviour but might refer to a range of behaviours over time. There is no specific number of incidents required for the behaviour to represent ‘repeatedly’ behaving unreasonably (provided there is more than one occurrence), nor does it appear that the same specific behaviour has to be repeated. What is required is repeated unreasonable behaviour by the individual or individuals towards Ms Purcell worker or a group of workers to which Ms Purcell belongs.

[43] ‘Unreasonable behaviour’ should be considered to be behaviour that a reasonable person, having regard to the circumstances, may consider to be unreasonable. That is, the assessment of the behaviour is an objective test having regard to all the relevant circumstances applying at the time.’

[89] I respectfully agree with those statements, but I would add three further observations about the interpretation and practical application of the expression “repeatedly behaves unreasonably” in s.789FD(1)(a). First, the expression falls within a definition provision. The function of a legislative definition, as was pointed out by McHugh J in Kelly v R, is not to enact substantive law, but to provide aid in construing the statute. A definition provision is therefore not to be interpreted in isolation and thereby given a meaning which negates the evident policy or purpose of a substantive enactment. Part 6-4B has the evident purpose of establishing a mechanism by which the bullying of workers at work may be stopped. In interpreting, and applying, the expression “repeatedly behaves unreasonably” as it appears in s.789FD(1)(a), the concept of repeated unreasonable behaviour is not to be approached in a manner which divorces it from that purpose. The subject matter is bullying at work, and that must be borne steadily in mind in any consideration as to whether particular behaviours are unreasonable for the purpose of s.789FD(1)(a). A consideration of unreasonable behaviour which loses sight of the objective and subject matter of Part 6-4B may lead to the provisions not achieving their intended purposes, or being used for a purpose that was not intended.

[90] The second observation is that unreasonableness and its converse, reasonableness, are familiar legal concepts applicable in a range of diverse contexts. In Giris Pty Ltd v Federal Commissioner of Taxation  Windeyer J said: “It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law...”. Where, in an anti-bullying case such as this one, the requisite repeated unreasonable behaviour towards the workers is said to be constituted by or include unreasonable discretionary managerial decisions directed to that worker, some useful guidance may be obtained in assessing whether the definitional standard in s.789FD(1)(a) is met from decisions concerning judicial review of administrative discretionary decision-making. In Minister for Immigration and Citizenship v Li the High Court considered the standard of unreasonableness applicable to such decision-making. The plurality (Hayne, Kiefel and Bell JJ), in considering the well-known formulation of unreasonableness stated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation, said that the legal standard of unreasonableness “should not be considered as limited to what is in effect an irrational, if not bizarre, decision - which is to say one that is so unreasonable that no reasonable person could have arrived at it”. They concluded their analysis by saying: “Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”. That formulation provides a useful yardstick for the application of the provision in a case such as this one.

[91] The third observation is that in order for conduct to be reasonable, it does not have to be the best or the preferable course of action. In Bropho v Human Rights & Equal Opportunity Commission, in interpreting the word “reasonably” as it appeared in s.18D of the Racial Discrimination Act 1975 (Cth), French J (as he then was) said:

“[79] ... It imports an objective judgment. In this context that means a judgment independent of that which the actor thinks is reasonable. It does allow the possibility that there may be more than one way of doing things ‘reasonably’. The judgment required in applying the section, is whether the thing done was done ‘reasonably’ not whether it could have been done more reasonably or in a different way more acceptable to the court.”

[92] In considering whether there has been unreasonable behaviour by an individual or group of individuals, it will of course be necessary for the Commission to determine whether the alleged behaviour actually occurred. Once the Commission has made the necessary findings of fact about the behaviour, it can then determine whether the behaviour was unreasonable.

[93] The final element in the s.789FD(1) definition is that the relevant behaviour “creates a risk to health and safety”. In relation to this element, I respectfully agree with the following analysis of Commissioner Hampton in Re SB, which is supported by authorities (cited by the Commissioner) concerning analogous provisions in NSW workplace health and safety legislation:

‘[44] The unreasonable behaviour must also create a risk to health and safety. Therefore there must be a causal link between the behaviour and the risk to health and safety. Cases on causation in other contexts suggest that the behaviour does not have to be the only cause of the risk, provided that it was a substantial cause of the risk viewed in a common sense and practical way. This would seem to be equally applicable here.

[45] A risk to health and safety means the possibility of danger to health and safety, and is not confined to actual danger to health and safety. The ordinary meaning of ‘risk’ is exposure to the chance of injury or loss. In the sense used in this provision, the risk must also be real and not simply conceptual.’

[94] It is clear that it is not necessary for an applicant to demonstrate that he or she has suffered an actual detriment to health or safety - that is, actual illness or injury - in order to demonstrate the necessary risk. However, the existence of such an illness or injury may be relied upon as a manifestation of the necessary risk, provided of course that the requisite causal link to the unreasonable behaviour at work has been established.

[95] Section 789FD(2) is loosely modelled upon provisions in Australian workers’ compensation statutes which exclude employers’ liability for certain workplace injuries caused by reasonable management action. In the context of s.789FD as a whole, the subsection does not operate as an exclusion as such but only operates (as expressly stated) to avoid doubt, since it is clear that reasonable management action undertaken in a reasonable manner would not constitute unreasonable behaviour under s.789FD(1)(a) in the first place. However it does serve to provide guidance in the interpretation and application of the unreasonable behaviour element of s.789FD(1)(a) in circumstances where an applicant alleges that management action such as performance management, disciplinary action, allocation of work, restructuring of the workplace and employer directions constitutes bullying. In Re SB there is a detailed exegesis of this provision, based on authorities concerning analogous workers’ compensation decisions, with which I respectfully agree but which it is not necessary to set out here.” 13 [Endnotes omitted]

[17] I respectfully adopt the Vice President’s analysis in Mac.

Reasonable management action

[18] As the incidents about which complaint is made raise for consideration whether the conduct or behaviour as alleged was reasonable management action carried out in a reasonable manner, it is necessary to say something about that issue. If the alleged behaviour can be said to be reasonable management action carried out in a reasonable manner, the behaviour will not amount to a worker being bullied at work. 14

[19] The Explanatory Memorandum 15 relevantly provides as follows:

“New section 789FD – When is a worker bullied at work?

107. New subsection 789FD(1) provides that a worker is bullied at work if, while the worker is engaged by a constitutionally-covered business, another individual, or group of individuals, repeatedly behaves unreasonably towards the worker, and that behaviour creates a risk to health and safety.

…

111. The Committee also found that balanced against this definition is the need for managers to be able to manage their staff. New subsection 789FD(2) is included to clarify that reasonable management action when carried out in a reasonable manner will not result in a person being ‘bullied at work’.

112. Persons conducting a business or undertaking have rights and obligations to take appropriate management action and make appropriate management decisions. They need to be able to make necessary decisions to respond to poor performance or if necessary take disciplinary action and also effectively direct and control the way work is carried out. For example, it is reasonable for employers to allocate work and for managers and supervisors to give fair and constructive feedback on a worker’s performance. These actions are not considered to be bullying if they are carried out in a reasonable manner that takes into account the circumstances of the case and do not leave the individual feeling (for example) victimised or humiliated.”

[20] The assessment of reasonableness is a question of fact and the test is an objective one. 16 In Ms SB, Hampton C set out the test that should be used in order to determine whether management action is reasonable:

“[49] Determining 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. Without limiting that assessment, the considerations might include:

• the circumstances that led to and created the need for the management action to be taken;



• the circumstances while the management action was being taken; and



• the consequences that flowed from the management action.

[50] The specific ‘attributes and circumstances’ of the situation including the emotional state and psychological health of the worker involved may also be relevant.

[51] 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.

[52] For the circumstances in s.789FD(2) of the FW Act to apply, the management action must also be carried out in a ‘reasonable manner’. Consistent with the approach above, what is ‘reasonable’ is a question of fact and the test is an objective one.

[53] Whether the management action was taken in a reasonable manner may depend on the action, the facts and circumstances giving rise to the requirement for action, the way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters.”[Endnotes omitted] 17

[21] The reasonableness of management action will depend on the action taken, the circumstances, the way in which the action impacts upon the worker, the implementation of the action and any other relevant matters. 18 Furthermore, as Hatcher VP observed in Mac, “an employee must be able to demonstrate that the decision to take management action lacked any evident and intelligible justification such that it would be considered by a reasonable person to be unreasonable in all the circumstances”.19

[22] It should also be observed that “management action” is apt to describe a range of conduct which affects an employee. Management action is not confined to matters that might be regarded as a managerial decision. The term catches a much wider form of conduct or behaviour including such things as performance and disciplinary matters, the allocation of work and the way in which work is to be carried out.

Conduct alleged

[23] I now turn to Ms Purcell’s allegations of unreasonable behaviour by Ms Farah towards her. There are 16 incidents of unreasonable behaviour alleged and I address each separately below.

Incident One – VCAL Classroom and Co-ordinator’s Office

[24] The unreasonable behaviour complained of by Ms Purcell is said to have begun in or about October or November 2013. At that time, Ms Purcell learned that Ms Farah had made a decision not to allocate a dedicated classroom to the VCAL program in 2014. 20 VCAL is a “hands on” alternative to the VCE program for senior students and requires a large amount of physical resources and materials.21 Ms Purcell had been the VCAL Co-ordinator since 2010 and the VCAL program had always been allocated a dedicated classroom during that time.22 Ms Purcell does not suggest that the VCAL program required a specific or particular classroom, just one that was designated for the program, as the program seems to have been assigned different designated classrooms over the period of four years.23

[25] In November 2013, Ms Purcell organised a meeting with Ms Farah to discuss issues with the VCAL program, including the decision not to allocate a dedicated classroom to the program. The attendees at the meeting included Ms Purcell, Ms Farah, Mr Justin Roberts and Ms Anna Marizita (Year Level Co-ordinators), Ms Bernadette Doufalidis (VCAL teacher) and Ms Anne Henderson (then Deputy Principal). 24

[26] Ms Purcell alleges that when the meeting started “it was obvious from Mary’s body language that she was angry”. 25 Ms Purcell alleges that Ms Farah “folded her arms across her chest, kept shaking her head no and stared at me unblinking”.26 It is also alleged that Ms Farah sternly rejected the suggestions made during the meeting, and Ms Purcell claims that she felt “discouraged” and “upset by her abrupt, angry tone and body language and was embarrassed in front of my colleagues”.27 Throughout cross-examination, Ms Purcell maintained her view that Ms Farah was angry during this meeting, basing this view on her observation of Ms Farah’s body language, tone and intense stare during the meeting.28

[27] Ms Farah contends that she was not angry during this meeting. She also contends that she had no reason to be angry with Ms Purcell and that she could not remember anything specific Ms Purcell had said during the meeting. 29 She expressed regret that Ms Purcell had taken offence at what she said or did during the meeting and indicated that she thought they had a good working relationship.30 Ms Henderson gave evidence that she had attended the meeting, that Ms Purcell raised concerns about the non-allocation of a dedicated classroom for the VCAL program and that Ms Farah told Ms Purcell that her request was refused.31 Ms Henderson makes no allegation that Ms Farah posited body language from which it could obviously be discerned that she was angry.32 Indeed, despite chronicling a number of largely irrelevant or at the least, tangentially relevant allegations about Ms Farah’s relationship with other employees of Mercy Education, Ms Henderson did not corroborate Ms Purcell’s view of Ms Farah’s conduct or demeanour during the meeting in November 2013.33

[28] The evidence does not support a conclusion that Ms Farah was angry during the meeting in November 2013. Interpreting body language, gestures and voice tones is fraught with danger and it seems clear that both Ms Henderson and Ms Purcell, though in attendance at the same meeting, drew different conclusions from Ms Farah’s body language, gestures and tone of voice, with the former giving no support in her evidence to Ms Purcell’s interpretation. The vagaries and subjective nature of body language interpretation is best summed up by the following extract from the transcript:

“Now you've inferred from the body language at the meeting at paragraph 21 of your statement, going back to your statement, your affidavit, that Ms Farah was angry and your basis for that was your reading of her body language.  That's correct?---(No audible reply)

So it's - - -

THE DEPUTY PRESIDENT:  Ms Purcell, you nodded your head then.  You didn't actually speak.  You will need to?---Sorry.

Yes?---Could you repeat the question please?

MR MILLAR:  I am sorry.   For the purposes of the transcript you'll need to make sure you give an audible answer?---Okay, and please just one question at a time.

Of course?---Thank you.

The view that you'd expressed in paragraph 21 about it being obvious that Ms Farah was angry was based on your reading of her body language at that meeting?---And her answers which were "No", "No".

And what I'm putting to you is that it's quite possible, is it not, that you misread her demeanour?---No.

And that she wasn't angry?---I believe she was.

You believe she was?---Yes.

But that's based on your observation of her body language, her demeanour during the meeting?---And the tone and the intense stare, yes.

And the tone and intense stare that you say - - -?---Yes.

But it's not as if she lost her cool during the meeting or said anything intemperate?---No, other than - no, what I've described.” 34

But even if Ms Purcell’s assessment were correct, it cannot be supposed from that assessment alone that Ms Farah was angry at her.

[29] Ms Farah gave evidence that the reason the VCAL program was not allocated a dedicated classroom in 2014 was based on a decision to demolish the particular building where the classroom was located in order to make way for a dedicated year 7 area, which would help attract increased enrolments. Ms Farah contends that she consulted the leadership team about this decision and also received the approval of the Board of Mercy Education. 35 She also gave evidence that Ms Purcell approached her when the demolitions began and asked for a new dedicated classroom. Ms Farah contends that she explained to Ms Purcell that, at previous schools she had worked at, the VCAL program did not have a dedicated classroom and that she saw no need for one at the College. She also offered that separate storage could be provided for the items used by students, if necessary.36 Ms Henderson agreed, during her evidence, that the need for the VCAL program to have a separate classroom was not a view shared by everyone,37 and that ultimately, a decision about classroom allocations was a matter for the Principal based on a broad discretionary assessment, and requiring the juggling of competing priorities and limited resources.38

[30] Ms Purcell contends that following the abovementioned meeting, her VCAL students asked if they could write a letter to Ms Farah outlining reasons for a dedicated classroom and, Ms Purcell agreed providing she could first proofread the letter. 39 Ms Farah acknowledged receipt of a letter from the students on 29 November 2013.40 The circumstances in which the letter was organised, drafted and sent to Ms Farah was challenged in cross-examination, but Ms Purcell contended that it was the students’ idea, that she proofread the letter before it was sent and that she was in the classroom while they prepared it. Ms Purcell insisted that students in the VCAL program are encouraged to take initiative and that this is “not atypical in a VCAL program”.41 She denied that she encouraged the students to challenge the authority of Ms Farah, and asserted that she only corrected the grammar and “made sure the language was diplomatic”.42

[31] Whatever may have been the motivation for the students’ letter, I do not accept that Ms Purcell’s involvement in the letter was designed to challenge the authority of Ms Farah. Objectively viewed, the students’ had an interest in the decision not to allocate a classroom to the VCAL program. It seems to me appropriate that those concerns be expressed in the manner they were. That Ms Purcell was involved in, and even encouraged the students to write the letter, is not evidence of any undermining, rather it shows no more than guiding students to express concerns in an appropriate and civil manner. There is no suggestion that Ms Purcell coerced or incited the students to write the letter. Moreover, the text of the letter itself 43 could hardly be described as provocative or undermining. It is in terms politely expressed, hopeful of reconsideration and sets out the major reasons for a classroom allocation. If only all dissent were able to be expressed in such convivial terms. Ms Farah’s concern that the students were being used by Ms Purcell “as a tool to basically challenge”44 the decision was, with respect, a complete overreaction.

[32] Ms Purcell was informed, many months after the students’ letter had been sent to Ms Farah, by Ms Henderson, that Ms Farah was not impressed by receipt of the letter from the students and had said to Ms Henderson words to the effect, “If she wants to operate like this I will teach her”. 45 Ms Farah gave evidence that she was concerned that Ms Purcell was using the students to challenge her decision. She was also disappointed that Ms Purcell had spoken to the students about the classroom allocations at such an early stage.46 Ms Farah also gave evidence that she said to Ms Henderson that she would “show Ms Purcell how professionals should act”.47 I do not accept Ms Farah’s version of her conversation with Ms Henderson, and prefer Ms Henderson’s version for the following reasons:

• Ms Henderson presented as a calm and considered witness, making appropriate concessions during cross-examination; 48



• Ms Henderson’s answers to questions suggesting that she was motivated in raising issues concerning Ms Farah’s interactions with some staff, including Ms Purcell, by tensions between her and Ms Farah 49 or by professional jealousy,50 were impressively answered and consistent with my overall impression of her as a truthful witness;



• Ms Farah’s version of the words she says she had used were not put to Ms Henderson in cross-examination. This was perhaps unsurprising since Ms Farah did not suggest in her witness statement 51 that Ms Henderson’s account was inaccurate or incomplete. Indeed, the conversation does not rate a mention despite Ms Farah benefiting from the provision of Ms Henderson’s statement in advance of preparing her own, and in which the words said to have been used by Ms Farah are set out;52



• Ms Farah adopted the content of her witness statement as true and correct in every particular 53 as her evidence-in-chief and no application was made to adduce any further evidence-in-chief;



• Ms Farah’s version of the conversation with Ms Henderson first came to light in cross-examination, 54 at which time Ms Farah says that she was “positive that she said that”,55 but not so positive as to include the version in her evidence-in-chief. Nor did she give instructions about her version of the conversation to her lawyers;56



• Ms Farah’s evidence about her view of Ms Purcell’s involvement in the students’ letter was, to say the least, inconsistent. On the one hand, Ms Farah gave evidence that she was “concerned that Susan may have been using the students to challenge” her decision, 57 yet on the other she said that she regarded Ms Purcell’s involvement as though it “wasn’t a big deal”.58

[33] That said, I am not satisfied that anything material came of the conversation. The conversation was not immediately disclosed to Ms Purcell and indeed, she did not become aware of it until about mid to late 2014, 59 after Ms Purcell had first contacted Ms Henderson.60 Moreover, Ms Farah’s comments were likely made to Ms Henderson in confidence, as senior colleagues and in the expectation that the words would not later be quoted to others.61

[34] Furthermore, after the students’ letter, a brief email exchange 62 followed between Ms Farah and Ms Purcell, as well as subsequent email exchanges which show a positive relationship,63 or at least one that had not been manifestly affected by Ms Purcell’s involvement in the students’ letter.

[35] Indeed, this issue at the heart of the students’ letter and of Ms Purcell’s concern was resolved when another member of the leadership team, Mr Robert Ruzbacky, who was also teaching a VCAL unit agreed that a dedicated VCAL classroom was appropriate. After conducting some investigations 64 he approached Ms Farah indicating that there was a spare classroom. Ms Farah then agreed to allocate a dedicated room to the VCAL program.65

[36] Ms Purcell submits that the decision not to allocate a dedicated classroom to the VCAL program was not based on any demonstrable logic. 66 I cannot agree. Whilst reasonable minds might differ as to the need for, or merits of, a dedicated classroom, it is not in dispute that at the time, the initial decision not to allocate a classroom was made by Ms Farah, a number of classrooms including the one then dedicated to the VCAL program were to be demolished in order to make way for a year 7 area.67

[37] Thereafter, decisions about the allocation of classroom resources needed to be made and these decisions fell to Ms Farah, who in making such decisions, is faced with the prospect of juggling competing priorities with limited resources, and ultimately when such decisions are made, not everyone affected will be happy. 68 The ultimate decision that Ms Farah made, affected not only Ms Purcell but also those students who would participate in the VCAL program in 2014. There is little by way of probative evidence from which it might be inferred that the decision about which complaint is made, was directed to Ms Purcell or that she was being singled out or targeted by Ms Farah in making her decision. Though the decision affected Ms Purcell, I accept Ms Farah’s explanation of her reasons for making it. The decision was not conduct towards Ms Purcell merely because it affected her. In any event, the decision in the circumstances, was a reasonable one.

[38] Ms Purcell’s perception of Ms Farah’s demeanour during the November 2013 meeting is just that, a perception, and, as already indicated, is not corroborated by others who attended the meeting, in particular by Ms Henderson. There is little doubt, in my view, that Ms Farah was unhappy with Ms Purcell’s conduct after she had made a decision, but it cannot be inferred from that unhappiness that the original decision was made for the purpose suggested by Ms Purcell. Moreover, that Ms Farah changed her view and ultimately allocated the VCAL program a dedicated classroom points to the contrary, and shows that her decision-making was not affected by her earlier displeasure at Ms Purcell’s involvement in the students’ letter.

[39] Furthermore, I do not accept the submission of Ms Purcell to the effect that, as Ms Farah was ultimately persuaded by Mr Ruzbacky to allocate the VCAL program a classroom based on the same arguments advanced by Ms Purcell, that this is indicative that Ms Farah’s conduct was for the purpose of singling out and targeting Ms Purcell. It might equally be said that, as Ms Farah changed her view, an inference might be drawn that the initial decision was not directed at isolating or targeting Ms Purcell at all. But more relevantly, the submission ignores the evidence of Mr Ruzbacky that he was approached by Ms Purcell towards the end of 2013 and asked by her whether he could find “a spare classroom to dedicate to the VCAL program”, and after investigating several rooms he identified a possible room which he then communicated to Ms Farah as part of his request that a dedicated classroom be allocated to the VCAL program. 69 So it is then, that armed with information that a “spare classroom” would be available in 2014 for use by the VCAL program, Ms Farah changed her position and allocated a dedicated classroom. If the purpose or motivation of Ms Farah in making the original decision was to isolate or target Ms Purcell, then one would have expected much greater resistance to the allocation from Ms Farah than that which obviously occurred.

[40] Shortly following this incident, the offices occupied by Senior Level Coordinators were vacated for renovations. Other staff members, including the VET Coordinator and the two Year Level Co-ordinators were given another office but Ms Purcell was not, even though there was a vacant office. 70 An office was said to have remained vacant for the first half of 2014 and then given to another staff member in the second semester.71 Ms Purcell attached to her witness statement a copy of the phone directory for semester one which indicated that, at that time, the office was empty.72

[41] Ms Farah set out the reason for the vacated offices (renovations) in her witness statement. She explained which staff members were allocated new offices and her reasons for the allocation. She explained that Ms Purcell was given a dedicated desk in the staff study room together with approximately 20 other teachers. 73 Ms Purcell gave evidence that, ultimately the issue was resolved with another member of the leadership dedicating a room for use by the VCAL Co-ordinator (Ms Purcell).74 Ms Farah said that it never occurred to her that Ms Purcell should need an office, as VCAL Co-ordinator, after the renovations.75 I do not accept Ms Farah’s evidence in this regard. As the passages from the transcript extracted below indicate, Ms Farah was well aware that Ms Purcell wanted an office:

“Okay.  Can I take you to paragraph 41 of your statement?  You say there it never occurred to you after the renovations that students should need an office as VCAL coordinator but Susan had raised this very issue with you in December 2013, hadn't she?  I think you just gave that evidence.  So it did occur to you that she might need an office as VCAL coordinator, didn't it, because she raised that with you?

THE DEPUTY PRESIDENT:  In fairness, it depends on how one reads that sentence.

MR MATSON:  Sorry, your Honour?

THE DEPUTY PRESIDENT:  It depends on how one reads that sentence:  it might equally be saying that after the renovations it never occurred to me that she needs an office;  that is, after April 2014 rather than it never, ever occurred to me.  You follow?

MR MATSON:  I understand there's a small ambiguity there.  But it did occur to you that Susan needed an office in 2014, didn't it?---When she told me.

She raised it with you?---She raised it with me that she wants to make phone calls, correct.

You knew that she'd had an office in 2013?---Yes, she did.

She raised with you, when the renovations started and she was going to be displaced, that she wanted an office and she had given you her reasons.  The other staff who had been displaced from that same area had been given offices.  That's correct, isn't it?---That is correct but I stand by my decision that VCAL role doesn't need an office.” 76

[42] This, together with the obvious knowledge that Ms Purcell had an office in her capacity as VCAL Co-ordinator before the renovations and was displaced by them, makes the statement that it never occurred to Ms Farah that Ms Purcell would need an office as VCAL Co-ordinator after the renovations, seem weak, self-serving and frankly, disingenuous. Indeed, it seems clear that Ms Farah did not allocate an office to Ms Purcell because Ms Farah was firmly of the view that the VCAL Co-ordinator “doesn’t need an office”. 77

[43] Ms Farah’s decision not to allocate an office to the VCAL Co-ordinator seems tinged with some arbitrariness when account is taken of the following matters:

• The VCAL Co-ordinator had an office prior to the renovations;



• The other teachers whose offices had to be vacated because of the renovations were each allocated an office elsewhere in the College; 78



• These other teachers occupied positions of VCE Co-ordinator and team leaders respectively; 79



• Ms Farah provided an explanation for the subsequent allocation of an office to the VCE Co-ordinator, 80 but no particular explanation is provided for the allocation of an office to each of the team leaders in preference to Ms Purcell;



• The rationale for the allocation of offices post renovations, which were completed in March or April 2014 to the Gifted and Talented Education Co-ordinator, the Learning Support Leader and the Integration Officer 81 is also unexplained; and



• An office at the College remained vacant for two terms in 2014. 82

[44] But it does not follow that the conduct was towards Ms Purcell. The conduct complained of must, in my view, be viewed in context. First, it seems to me clear that the decision relates to the need for a VCAL Co-ordinator to have an office, it is not a decision that is personal to Ms Purcell, although she is affected by the decision. It is the need of the “role” that was assessed, not the person. 83 That “needs” assessment was undertaken by Ms Farah who concluded that the VCAL Co-ordinator did not need an office for reasons which included that the VCAL Co-ordinator was part of a group of staff, described as “middle leaders”, each of whom do not have offices.84 The needs assessment was doubtless also affected by Ms Farah’s view as to the need for the VCAL program to be allocated a dedicated classroom and her experience at other schools.85 Ultimately, decisions about use and allocation of the College’s scarce and finite resources are matters for the Principal and doubtless will sometimes be met with unhappiness or be the subject of controversy.

[45] Having regard to this context, it seems to me that the office allocation decision was not directed to Ms Purcell. It was based on an assessment that the position of VCAL Co-ordinator does not need an office. That position pertains today to the role of VCAL Co-ordinator, which is no longer occupied by Ms Purcell. 86 For the reasons earlier given, I do not accept that the conversation between Ms Farah and Ms Henderson shortly after the students’ letter was received, shows either directly or indirectly that the office allocation decision was made to target or isolate Ms Purcell. It follows that the office allocation decision was not a case of conduct towards Ms Purcell. But even if it could be so described, I do not consider the office allocation decision to be unreasonable. As Principal, Ms Farah was entitled to conclude that the VCAL Co-ordinator did not need an office. The reasons for that conclusion given by Ms Farah, are neither illogical nor unintelligible. That others might disagree with the assessment is beside the point. Reasonable minds might differ on the assessment,87 but that that is so, does not render the assessment or the decision made by reason of the assessment unreasonable.

Incident Two – Recycled Goods Market

[46] The escalating exchange between Ms Purcell and Ms Farah about the Recycled Goods Market underscores the animus between the two and is instructional in how molehills become mountains.

[47] The incident began on 30 May 2014 following the organisation and conduct of a Recycled Goods Market by the students in Ms Purcell’s VCAL program. Ms Farah, in a note from the Principal to staff about various matters, acknowledged the work of Ms Purcell and the VCAL students in relation to the Recycled Goods Market. The acknowledgement read as follows:

“A note from the Principal

…

VCAL
Congratulations to Sue and all the VCAL students on quite a magnificent re-cycled Fashion Parade” 88

[48] Ms Purcell says that she corrected the mistaken reference to “Fashion Parade” in a light-hearted way in an email to all staff. 89 The text of the email is reproduced below:

“A huge thank you to all the staff who contributed to the success of the VCAL RECYCLED GOODS MARKET

…

While the hotdogs looked slim and shapely in their Brumby cloaks…they were not Gucci…just Don

While the sausages sizzled on the cat walk and also donned Brumby, they were not Versace…just Coles

The closest thing to the Paparazzi were the papier mache piñata pigs for sale in the Hall.

While it was an exciting event, it was not a fashion parade. (see Principal’s weekly note)

…” 90

[49] As mentioned above, Ms Purcell contends that this email was sent in a “light-hearted way”, however, Ms Farah claims that she felt humiliated by Ms Purcell’s email. 91 Ms Farah contends that she considered the “…remarks and the general tone of her email to be unprofessional, offensive and humiliating”.92 Ms Farah also indicated that Ms Purcell should have contacted her directly, and if she had done so Ms Farah would have apologised and issued a note to the staff clarifying the mistake.93

[50] Ms Purcell gave evidence that Ms Farah sent Ms Purcell several emails stating Ms Farah expected more from a Co-ordinator and claiming that Ms Purcell had deliberately humiliated her. 94 Ms Purcell alleges that Ms Farah made no attempt to discuss her concerns before sending the emails. She contends that she was very upset and that it is “not in my nature to set out to humiliate”.95

[51] As indicated above, Ms Purcell and Ms Farah exchanged various emails following the Principal’s note and Ms Purcell’s all staff email. Ms Farah gave evidence that she sent an email to Ms Purcell “expressing her views” about Ms Purcell’s all staff email. 96 The text of Ms Farah’s email reads as follows:

“Dear Sue,

Thank you for all the work you did with the students ensuring such a successful event. I really appreciate all the work you did and only wished to acknowledge that in my note last week – although perhaps made in gest, I did not appreciate your comment to staff. Highlighting innocent mistakes by staff is not a trait of mine, nor one I respect in others. I expect more from Coordinators.

Thank you

Regards,

Mary” 97

[52] Ms Purcell responded by email, the text of which provides:

“Hi Mary

I’m glad I created this reaction. My comments were done in gest (as are most, as this is my way of coping with stress) and I suppose it may not have been your intention to trivialise an enormous effort, nevertheless as a CO-Ordinator, a professional and ultimately a human I want to mention the following points.

1. I feel as if the VCAL program is viewed as the ugly duckling of the school eg the classroom, no office, no access to telephone as I used to have. The students and parents have commented on this a number of times.

2. I feel as if the high number of students, some quite challenging, is taken for granted

3. I know that we are all being paid to fulfil our roles, yet reading your weekly Principal notes, it is obvious that some receive all your accolades and accurate descriptions of the work undertaken

While you have no respect for me as a Co-Ordinator, I know I am doing an exceptional job under the circumstances given the feedback from parents, colleagues and students.

Regards

Susan” 98

[53] Ms Farah replied by email as follows:

“Thank you for your comments Sue.

I would have preferred that you had made a time to come and speak with me regarding some of your frustrations regarding VCAL – with your preferred solutions – rather than making a public statement intended to insult me.

I apologise for referring to the Market as a Fashion Parade – after I was happy to support the initiative and after speaking with the girls, it seemed they were most excited by the fashion aspect and that’s what stuck in my mind. My only and simple intention was to publicly acknowledge your efforts and the girls’ success, with no intention of upsetting you. Your reaction has been surprising.

As with any Coordinator who has ‘frustrations’ I would have expected an approach to be made to me to discuss how things could be improved – I thought, Sue, that we had that sort of relationship, and that’s what has disappointed me most, particularly as you confirmed your deliberate intent to insult.

Nevertheless, I am very happy to set up a meeting later in the week so that we can work together to see how your VCAL frustrations can be addressed – as you’re aware, I am in the process of trying to improve all areas of the College and anything I can do to help will be done.

Thanks

Mary” 99

[54] Ms Purcell’s reply was as follows:

“…I find the comments ‘making a public statement intended to insult me’ and ‘you confirmed your deliberate intent to insult’ very offensive as this was not the case and it is not in my nature.

My intention, as an effective VCAL Co-Ordinator, was merely to clarify a misunderstanding regarding an aspect of my program.

I thought, in a light hearted sense, I was being diplomatic as I included you in the joke.

As for my ‘frustrations’ with VCAL, I did attempt to address them when I set up a meeting with you late last year. Bernadette Doufalidis and Justin Roberts were also in attendance and also expressed concern over the high number and variety of student combinations in the class for 2014.

I feel it is also important to mention that in all my years of teaching, this is the first unpleasant incident I have had with a Principal.

If you consider a meeting is necessary, please let me know.

Like you, I also feel disappointed because I have been misunderstood and I truly thought you knew me better. We shared many laughs…” 100

[55] Following this email exchange Ms Farah sent a correction email to all staff. 101

[56] What then should be made of these exchanges? To begin with, Ms Farah not only acknowledged but congratulated Ms Purcell and all the VCAL students “on quite a magnificent” Recycled Goods Market in her Principal’s note. 102 Unfortunately, as it turns out, Ms Farah referred, erroneously, to the Recycled Goods Market as a fashion parade. There is no suggestion, much less any evidence, that the misnomer was deliberate. It is also doubtless the case that Ms Purcell’s all staff email in which she refers to and corrects the error in the Principal’s note was not intended to be malicious but rather, light-hearted. That said, it is rarely wise to refer to and highlight a mistake of another in an email that is widely circulated. It would have been prudent for Ms Purcell to have simply brought the error to the attention of Ms Farah and allowed her to correct it. That would have been the end of the matter.

[57] I can well understand that Ms Farah was embarrassed at having her error, however light-hearted the intention, highlighted in an all staff email. Ms Farah’s email to Ms Purcell following the all staff email was, in the circumstances, not an unreasonable response. A phone call to discuss the matter, preceded perhaps by a day’s delay and calm reflection, might have been a better approach, but reasonableness is not to be judged by the lofty standards of best practice. The email begins with a thank you and an expression of appreciation of the work undertaken in relation to the Recycled Goods Market. It proceeds with an acknowledgement that the correction in the all staff email might have been made in jest and concludes with Ms Farah telling Ms Purcell that she did not appreciate having her innocent mistake highlighted to all staff. Ms Farah says that such conduct is not a trait of hers and one she does not respect in others. Finally, Ms Farah says that she expects more from co-ordinators. 103

[58] From here, the correspondence that passes between the two gets out of hand. There is first Ms Purcell’s suggestion in her reply, that she supposes “it may not have been your intention to trivialise an enormous effort”, 104 with the obvious implication that Ms Purcell regarded the Principal’s note as doing that very thing. The email concludes with that which I regard as a complete mischaracterisation by Ms Purcell of Ms Farah’s preceding email referred to above, that highlighting innocent mistakes by staff “is not a trait of mine, nor one I respect in others. I expect more from Co-ordinators”. Ms Purcell writes in her email that:

“[W]hile you have no respect for me as a Co-Ordinator, I know I am doing an exceptional job under the circumstances given the feedback from parents, colleagues and students” 105

[59] On no measure could Ms Farah’s concluding remarks be read as a criticism of Ms Purcell’s performance as the VCAL Co-ordinator. In my view, the tone and substance of Ms Purcell’s response was ill advised and was not assisted by the opening salvo that “I’m glad I created this reaction”. 106

[60] Ms Farah’s reply was, in my view, for the most part reasonable and conciliatory. Again, a day’s reflection before sending the email might well have resulted in the omission of that part of the email which, after expressing disappointment that Ms Purcell’s frustrations, expressed in the email referred to above, were not first discussed with Ms Farah, carries on with the barb “particularly as you confirmed your deliberate intent to insult”. 107 This interpretation of Ms Purcell’s opening salvo is, in my view, exaggerated and with respect, a little bit precious. The email concludes with an offer to meet with Ms Purcell to discuss the issues that she had raised in her email.

[61] The final email in this chain is from Ms Purcell. Unsurprisingly she takes issue with Ms Farah’s exaggeration noted above. Otherwise, the email is not particularly controversial or inflammatory; although I note two matters. First, Ms Purcell does not take up the offer to meet with Ms Farah to discuss her concerns about the VCAL program. This was unfortunate. Secondly, the sentence in Ms Purcell’s email that “I thought, in a light-hearted sense, I was being diplomatic as I included you in the joke” 108 shows a lack of awareness that all staff emails which highlight mistakes made by another, however light-heartedly expressed, might tend to offend (and in this case did offend) the person whose mistake has been highlighted.

[62] In my view, for the most part, Ms Farah’s emails in the chain discussed above were reasonable and proportionate. I agree with Ms Farah’s submissions that some of Ms Purcell’s responses, as set out in the chain of emails, were intemperate. As I have said, a degree of delay before responding, and reflection as well as a face-to-face meeting to discuss the various issues raised, rather than corresponding in the heat of the moment, would likely have avoided much of the angst that the various emails caused. But, I do not accept that the emails sent by Ms Farah to Ms Purcell amount to Ms Farah behaving unreasonably towards Ms Purcell when viewed in the context of the exchange as a whole, and Ms Purcell’s contribution to the exchange.

Incident Three – Meeting on 6 June 2014

[63] On 2 June 2014, Ms Farah asked her personal assistant (Ms Martelli) to organise a meeting with Ms Purcell to discuss the issues raised by Ms Purcell in relation to the VCAL program, and also to discuss the way Ms Purcell had communicated in the abovementioned emails. 109 Ms Purcell gave evidence that upon receipt of the meeting request she contacted Ms Therese O’Loughlin, an official of the Independent Education Union (Union) seeking advice. According to Ms Purcell, Ms O’Loughlin and Ms Purcell agreed that it was not necessary for Ms O’Loughlin to attend the meeting.110

[64] Ms Purcell then alleges that she received an email from Ms Martelli asking whether “Theresa would attend the meeting tomorrow as she hadn’t replied to the invitation”. 111 Upon receipt of this email, Ms Purcell contends that she was confused because she had not invited Ms O’Loughlin and when Ms Purcell sought clarification from Ms Martelli, she apologised for the confusion and told Ms Purcell that she thought Ms Purcell had sent the invitation to Ms O’Loughlin. Ms Purcell concluded that Ms Farah must have sent the invitation to Ms O’Loughlin.112 Ms Farah contends, however, that on 4 June 2014 she received an automatic message from her Outlook email advising her that Ms Purcell had forwarded the calendar invitation to Ms O’Loughlin.113 Ms Farah further contends that she first became aware that Ms O’Loughlin had been invited to the meeting, from Ms Martelli, who had access to Ms Farah’s emails, when Ms Martelli forwarded an email to Ms Farah from her own email account.114

[65] Ms Purcell alleges that during the meeting on 6 June 2014, Ms Farah told her to be careful about what she puts in emails because she had sent the meeting invitation to the Union. 115 Ms Purcell claims she did not send the invitation to Ms O’Loughlin, but she did not argue with Ms Farah because she was unsure how Ms Farah would react.116 Ms Purcell believed that, based on her assessment of Ms Farah’s tone of voice, she was testing Ms Purcell to find out what contact she had with the Union. Ms Purcell also felt that Ms Farah was disapproving of her contact with the Union as, in the words of Ms Purcell, “she continued to stare at me until I dropped my gaze”.117

[66] Ms Farah’s evidence about the meeting is quite different. Ms Farah contends that during the meeting she said to Ms Purcell, words to the effect of “We need to be careful about what we write in our emails” and says that this comment was made in reference to Ms Purcell’s email sent to all staff regarding the Recycled Goods Market and not in relation to the meeting invitation to Ms O’Loughlin. 118 During the meeting, Ms Farah says that she apologised to Ms Purcell if she had offended her in her note to staff and that Ms Purcell said she didn’t mean anything by the comments.119 She says that she told Ms Purcell how much she values the VCAL program and that if there were any issues with the program, Ms Purcell should discuss them with Ms Farah. Ms Farah also gave evidence that she told Ms Purcell that Ms Purcell had invited Ms O’Loughlin to the meeting and that this is why her personal assistant was asking whether Ms O’Loughlin was attending. She said that Ms Purcell denied having done so and Ms Farah did not press the issue.120

[67] According to Ms Purcell, the meeting ended on a cordial note but she was still worried about Ms Farah’s comment mentioned above. 121 Ms Farah, likewise, was under the impression that the meeting ended on a positive note.122

[68] Ms Purcell contends that following the meeting, she was told by Ms O’Loughlin that the invitation for the meeting was sent to her by Ms Martelli. 123 However, Ms Farah gave evidence that she received an automatic message from her Outlook email advising that Ms Purcell had forwarded the appointment to Ms O’Loughlin. Additionally, Ms Martelli, who also gave evidence in the proceedings, said that on 4 June 2014 she saw a notification in Ms Farah’s Outlook calendar that Ms Purcell had forwarded the invitation to Ms O’Loughlin.124 Ms Martelli also said that she sent an email to Ms Farah about that notification,125 and when she noticed on the following day that Ms O’Loughlin had not accepted the invitation, this led to an email exchange between her and Ms Purcell about whether Ms O’Loughlin would be attending.126 Ms O’Loughlin was in attendance during the proceedings, but did not give evidence.

[69] There is clearly a contest about who invited Ms O’Loughlin to the meeting on 6 June 2014.

[70] Ms Purcell submits that, despite Ms Farah’s insistence to the contrary, 127 it was Ms Martelli who sent the meeting invitation to Ms O’Loughlin. She did this at 3.56pm on 3 June 2014.128 It was the following day, in the context of discussing the meeting with Ms O’Loughlin, that Ms Purcell forwarded the invitation to Ms O’Loughlin.129 Ms Purcell was clear that she did not forward the invitation with an intention to “invite” Ms O’Loughlin, but merely to let her know that the meeting was on.130 Ms Purcell contended that, in the absence of evidence to the contrary, it should be assumed that the automatically generated “Meeting Forward Notification” was generated immediately upon the invitation being forwarded to Ms O’Loughlin. In any event, the notification was received by Ms O’Loughlin on the Tuesday (3 June 2014).131 Ms Purcell contends that she did not invite Ms O’Loughlin to the meeting,132 and that when she forwarded the meeting notification on 4 June 2014, Ms O’Loughlin had already been invited by Ms Martelli on 3 June 2014.133

[71] Ms Farah submits that, consistent with Ms Martelli’s evidence, Annexure MF-4C includes Ms O’Loughlin only because the invitation was forwarded by Ms Purcell and that, by forwarding the meeting notification, Ms Purcell “invited” Ms O’Loughlin.

[72] A resolution of this contest is required only if I accept Ms Purcell’s evidence that, during the meeting, Ms Farah told Ms Purcell to “be careful what you put in emails as (I had) sent the meeting invitation to the Union”. 134 On this issue I prefer the evidence given by Ms Farah, for the following reasons:

• On Ms Purcell’s version of events, one is required to accept the premise that Ms Farah invited or caused to be invited, Ms O’Loughlin, to a meeting on 6 June 2014 and that thereafter Ms Farah not only would deny doing so, but would insist that Ms Purcell has done so for the purpose of discovering whether Ms Purcell had contact with the Union. 135 In my view, this is simply not a plausible premise;



• The phrase “be careful what you put in emails as you sent the meeting invitation to the Union”, said to have been uttered by Ms Farah, appears to me to make little sense since the reference to what you put in emails would suggest content of emails, rather than the fact that a third party had been invited to a meeting. The phrase, read in its totality, seems to me to be disjointed and more likely the product of Ms Purcell’s interpretation of the words which, both parties agree, were uttered to the effect that Ms Purcell should be “careful what you put in emails”;



• The meeting on 6 June 2014 was convened for the purpose of discussing the email exchange between Ms Farah and Ms Purcell concerning the Recycled Goods Market. Given this context, and Ms Farah’s evidence that she said words to the effect that Ms Purcell should be “careful what you put in emails” and her explanation of that comment was a reference to the all staff email about the Recycled Goods Market, 136 Ms Farah’s version is inherently more likely and credible.

[73] In these circumstances, neither the meeting nor that which occurred during the meeting can be said to be unreasonable behaviour by Ms Farah towards Ms Purcell.

Incident Four – ICT Tech

[74] This incident in effect concerns an allegation of bullying behaviour experienced by a colleague of Ms Purcell. The colleague, Mr Adrian De Zordi, gave evidence during the proceedings in relation to his experience. 137 Insofar as it is relevant to Ms Purcell’s complaints of bullying to which she says she has been subjected, Mr De Zordi contends that on 17 June 2014, he spoke with Ms Purcell expressing his anxiety in attending a meeting with Ms Farah about his impending resignation, as he had secured other employment.138 Ms Purcell and Mr De Zordi agreed that he would send an email to Ms Farah advising that he would like Ms Purcell to attend any meeting between himself and Ms Farah. Subsequently, Mr De Zordi sent his resignation by email to Ms Farah139 and followed this up with another email advising her that he would like Ms Purcell to attend any meeting.140

[75] Mr De Zordi alleges that, at 10.00pm that same night, he received an email from Ms Farah indicating that if he insisted on having Ms Purcell present at any meeting, then Ms Farah did not want to have the meeting. The text of the email was as follows:

“Adrian

If/when a Principal asks an employee to discuss his/her resignation, it is to acknowledge the work and contribution s/he has made to the community, to arrange termination details and to extend his/her best wishes. However, as your email reads that you are not comfortable to have a conversation with me without another staff member present, I do not see the need for this to occur.

To arrange termination details: Andrew will make a time with you next week to arrange return of iPad, keys etc. I will expect a formal letter of resignation, signed and dated, no later than tomorrow so that your two week’s notice is effective – this resignation letter is to be addressed to me and will need to be handed to Antoinette so it can be processed.

Mary” 141

[76] Ms Purcell gave evidence that the next time she saw Ms Farah was on 20 June 2014 at a social gathering in the staffroom. 142 When Ms Purcell first took a seat there was someone blocking her from Ms Farah’s view. However, she believes that Ms Farah pushed her chair back deliberately so that she had a clear view of Ms Purcell. She claims that she received several angry glares from Ms Farah and said that she felt very frightened. Ms Purcell felt that Ms Farah was angry with her because Mr De Zordi had mentioned her in his email. Ms Purcell’s evidence is that she has felt more targeted and very stressed ever since this point.143

[77] Ms Farah’s evidence about this incident is that she does not really remember much about it as it did not stand out to her as unusual at the time. 144 She said that she did not hold Mr De Zordi’s resignation or emails against Ms Purcell and claims that, if she had an issue with Ms Purcell, at that time, she would have called her in for a meeting.145

[78] The way in which Ms Purcell seeks to make good the allegation that this incident amounted to unreasonable behaviour by Ms Farah towards Ms Purcell, is set out in the submissions of Ms Purcell as follows:

“Role of The Mentor
A successful Mentor is characterized as being:

Supportive: A Mentor is one who supports the needs and aspirations of the Mentee. This supportive attitude is cricital for the successful development of the mentee. A Mentor must encourage the Mentee to accept challenges and overcome difficulties.

Patient: A Mentor is patient and willing to spend time performing mentoring responsibilities. A mentor allows adequate time to interact with the Mentee. Time requirements are defined by both the Mentor and the Mentee.

Good Motivator: A Mentor is someone who inspires a mentee to do better. A Mentor needs to be able to motivate a Mentee through encouraging feedback and challenging work assignments (where applicable).

Effective Teacher: A Mentor must not only teach the ‘skills of the trade,’ but also manage the learning of the Mentee. This means the Mentor must actively try to recognize and use teaching opportunities.

Values St Aloysius and the teaching profession: A Mentor takes pride in St Aloysius and relishes the everyday challenges that typically arise. A Mentor understands the mission, vision, and values of the College, and supports the College’s initiatives.

Accepts others: A Mentor is one who shows regard for another’s wellbeing. Every person, including the Mentor, has certain vulnerabilities and imperfections that must be accepted.

Refer to Mentor Role Description for more detail.” 371

[193] Ms Purcell submits that the decision to allocate a mentor was made by Ms Farah and that Ms Farah’s evidence to the contrary, was contradictory and should not be accepted. In particular, Ms Purcell argues that Ms Farah:  372

“ pretended not to know the reasons why a mentor was assigned, but asserted that it was with a good intention; 373

• asserted that she had not discussed the assignment of a mentor with Ms Valentine; 374



• used the words ‘we appointed’; 375



• conceded that she ‘supported (her) deputy with the decision she made’; 376 and



• gave evasive evidence, such as trying to conflate the general support given by a team leader with the appointment of a mentor. 377”

[194] Ms Purcell further submits that, although Ms Farah claimed she had nothing to do with the assignment of a mentor, she advanced a number of reasons supporting the decision which she then declined to reinforce in cross-examination. The reasons given by Ms Farah included:

• Changes to the curriculum (but as conceded by Ms Farah no changes were made within the 6 months that Ms Purcell was on LSL); 378



• The mentor was there to support everyone (but was assigned as a mentor to Ms Purcell by Ms Valentine); 379 and



• Encouraging conversation (which Ms Farah conceded could be conducted with any other staff member). 380

[195] Ms Purcell also contends that the decision to allocate a mentor did not constitute management action, but to the extent that it may, then it was not reasonable in that it was:

“ Unprecedented at St Aloysius 381

• Out of step with the practice in Catholic Education in Victoria; 382



• With very particular application to Ms Purcell, 383



• Nonsensical in that the person allocated to mentor Ms Purcell was



• a less experienced teacher,



• with less experience teaching English



• with less experience working at St Aloysius; 384 and



• was not teaching the same year level or areas of English as Ms Purcell; 385



• Implemented mandatorily, and such that other staff might be aware that Ms Purcell required mentoring; 386



• Taken in circumstances which point to unreasonableness including that, in late 2014, Ms Purcell had filed two sets of complaints about the conduct of Ms Farah. 387



• Implemented such as to target, embarrass, humiliate and isolate Ms Purcell.” 388

[196] Ms Farah contends that she had nothing to do with the decision and, accordingly, it was not conduct by Ms Farah towards Ms Purcell. 389 She says the decision was made by her deputy, Ms Valentine. Ms Farah submits that allocating a mentor is a form of support, and that most of the leadership team, including Ms Farah herself, have mentors.390

[197] The evidence given by Ms Farah in relation to this allegation is contradictory,  391 unconvincing and, in my view, not credible. Ms Farah was aware that the Deputy Principal had appointed a mentor to Ms Purcell upon her return from LSL. She supported the decision392 and said that Ms Valentine’s intentions were good.393 Ms Farah is the Principal of the College and, according to her own evidence, she is involved in the day to day operational decisions, hiring and firing of staff, she makes the decision as to whether or not to place staff on performance management plans and she is involved in the decisions regarding training requirements.394

[198] Moreover, the induction document in which the decision to allocate a mentor to Ms Purcell was set out, 395 carried a “Principal’s Welcome” above the name of Ms Farah. In addition, although Ms Farah suggested that she did not discuss the allocation of a mentor with Ms Valentine,396 I think that is unlikely given that the induction (of which allocation of the mentor was a part) was not discussed with Ms Valentine.397 Indeed, I am not sure how Ms Farah would have formed the view that Ms Valentine’s intentions were good without discussing the decision.

[199] Ms Valentine was held out as the person who made both the decision to require Ms Purcell to undertake an induction and to allocate a mentor yet she was not called to give evidence. The reason she was not called is unexplained by Ms Farah. It seems clear that she could have been called since on at least one occasion, Ms Valentine was in the courtroom during the hearing. 398 In the circumstances, I draw the inference that her evidence would not have assisted Ms Farah.399 The cumulative effect of all this is that I am satisfied that the decision to allocate a mentor to Ms Purcell was that of Ms Farah.

[200] I also accept that the decision was unreasonable for the following reasons:

• According to the induction document given to Ms Purcell which sets out the allocation of a mentor, “each new staff member will have a mentor”. 400 Ms Purcell was not a new staff member and had rendered nearly two decades of teaching service at the College;



• The reasons advanced by Ms Farah for the allocation of a mentor were confused and unconvincing; 401 and



• The mentor allocated was a less experienced teacher, with a lesser period of service at the College, with less experience in teaching English and was not teaching the subject at the same level as Ms Purcell. 402

[201] Consequently, I am satisfied that the decision to allocate a mentor to Ms Purcell was unreasonable conduct or behaviour of Ms Farah towards Ms Purcell.

[202] Although the decision to allocate a mentor to Ms Purcell was “management action”, for the reasons given, it was not reasonable. There is no evident or intelligible justification for the allocation of a mentor to Ms Purcell in the circumstances.

What is bullying behaviour under the Act?

[203] Section 789FD of the Act provides as follows:

“789FD When is a worker bullied at work?

(1) A worker is bullied at work if:

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

(i) an individual; or
(ii) a group of individuals;

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

(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.”

Repeated unreasonable behaviour

[204] It is apparent from the analysis above that I have found that Ms Farah has repeatedly behaved (incidents eight, thirteen, fifteen and sixteen) unreasonably towards Ms Purcell.

[205] For the reasons given earlier I do not consider that any of the four incidents constituting the repeated behaviour amount to reasonable management action carried out in a reasonable manner.

[206] In order that the repeated unreasonable behaviour identified may be said to be bullying at work it is also necessary to conclude that the repeated behaviour creates a risk to health and safety.

Risk to health and safety

[207] In Ms SB, Hampton C provided the following analysis in relation to the “risk to health and safety” element in s.789FD as follows:

“[44] The unreasonable behaviour must also create a risk to health and safety. Therefore there must be a causal link between the behaviour and the risk to health and safety. Cases on causation in other contexts suggest that the behaviour does not have to be the only cause of the risk, provided that it was a substantial cause of the risk viewed in a common sense and practical way. This would seem to be equally applicable here.” 403 [Endnotes omitted]

[208] A risk to health and safety means the possibility of danger to health and safety, and is not confined to actual danger to health and safety. 404 The ordinary meaning of “risk” is the exposure to the chance of injury or loss; a hazard or dangerous chance,405 however, the risk must be real and not merely conceptual.406

[209] It is clear that it is not necessary that an applicant demonstrate that he or she has suffered actual injury or loss in order to demonstrate the necessary risk. 407

Incident Eight – Annual Review Meeting

[210] For the reasons set out at [117] to [126] above, the decision to nominate Mr Coates to participate in Ms Purcell’s ARM was unreasonable conduct or behaviour of Ms Farah directed towards Ms Purcell. The decision was likely, in the circumstances of her poor relationship with Mr Coates, to have caused Ms Purcell some distress. However, as the decision was not ultimately implemented once objection was taken, the impact of the decision on a risk to health and safety is, in my view, somewhat mitigated. Taken in isolation, the decision, which was not implemented, is in my view unlikely to have posed a risk to Ms Purcell’s health or safety, but the incident is not isolated and so the cumulative effect of the repeated behaviour on the risk to health and safety must be taken into account.

Incident Thirteen – LSL Payment

[211] For the reasons set out at [160] to [171], the deliberate communication of the misinformation about Ms Purcell’s LSL payment by Ms Farah was unreasonable behaviour and was, clearly directed towards Ms Purcell. The conduct appears to have been motivated by a groundless suspicion about gossiping, and was, in my view, calculated to cause uncertainty in the mind of Ms Purcell and is likely to have caused her distress.

Incident Fifteen – Induction Course

[212] As detailed at [178] to [189] above, I have concluded that the requirement that Ms Purcell undertake induction, upon her return to work after LSL, constitutes unreasonable behaviour by Ms Farah towards Ms Purcell. That she was required to undertake the induction in the circumstances was likely to have caused Ms Purcell to be distressed.

Incident Sixteen – Allocation of Mentor

[213] It is also my view that the allocation of a mentor was an unreasonable decision. I have set out my reasons for this conclusion at [190] to [202] above and am satisfied that the decision was that of Ms Farah. The allocation of a mentor to Ms Purcell, given her years of experience and absent any demonstrable need for a mentor would likely have been a source of embarrassment to Ms Purcell and a source of distress.

[214] As discussed earlier in this decision, it is not necessary that Ms Purcell demonstrate she has suffered actual injury or loss in order to establish a risk to health and safety. Ms Purcell provided two very brief reports from a general practitioner and a psychologist, both of whom she presented to after 18 June 2015. 408 However, neither the general practitioner nor the psychologist were called to give evidence during the proceedings.

[215] Ms Purcell submits that she was exposed to “multiple and repeated instances of isolation, targeting, disparagement to other staff and demeaning treatment” and asserts that “No further evidence is required to establish that exposure to such treatment raises a real risk to health and safety”. 409 There must be a causal link between the behaviour and the risk, and that risk must be real and not just conceptual.

[216] In my view, Ms Purcell’s perception as to risk, cannot be the sole determinant of the risk to health and safety. Ms Purcell contends that she has experienced distress, and significant stress and anxiety as a result of the conduct complained of. 410 Having observed Ms Purcell during these proceedings, I have no doubt that the events complained of have affected her wellbeing. As I have indicated above, the incidents are likely to have caused distress to Ms Purcell. Moreover, the cumulative effect of the incidents is likely to have heightened the level of distress. Some of the distress experienced by Ms Purcell will have, in my view, been caused by her perception of Ms Farah’s attitude towards her, and Ms Purcell’s perception of Ms Farah’s demeanour, facial expressions and manner, rather than the conduct of Ms Farah.

[217] Nonetheless, the four incidents which I have concluded constitute repeated unreasonable behaviour were likely to have caused distress and thereby posed a real risk to Ms Purcell’s mental health. The allocation of a mentor and the requirement that Ms Purcell participate in the induction program was, in the circumstances, insulting, embarrassing and humiliating. Ms Farah’s communication of the status of Ms Purcell’s LSL application was not only unnecessary, but in my view calculated to cause uncertainty in the mind of Ms Purcell. The decision to nominate Mr Coates to conduct Ms Purcell’s ARM did not have any legitimate purpose and was likely to have caused Ms Purcell some distress given her previous dealings with Mr Coates and about which Ms Farah was aware.

[218] It follows that Ms Farah repeatedly behaved unreasonably towards Ms Purcell and that behaviour created a risk to the health and safety of Ms Purcell. Ms Purcell was bullied at work.

What orders if any should be made?

[219] These proceedings were ultimately conducted on the basis that I would first make findings as to whether bullying at work occurred, and that if I were satisfied that there has been bullying of Ms Purcell by Ms Farah at work, I would separately deal with the question of whether there is an ongoing risk of bullying, and if so what orders (if any) should be made. 411 This was appropriate having regard to the array and nature of the allegations made by Ms Purcell, and the need to consider both the question of ongoing risk and the need for any consequential orders having regard to the conduct actually found as constituting bullying at work.

[220] As I have concluded that there are four incidents which together constitute repeated unreasonable behaviour by Ms Farah towards Ms Purcell that create a risk to health and safety, it is appropriate to now establish a program by which the question whether any orders should be made is to be considered and determined.

[221] As I have endeavoured to indicate at the outset of this decision, the relationship between Ms Purcell and Ms Farah is an obviously tense one involving some mutual animus. It appears to me that this poor relationship is at the heart of many of the issues about which complaint has been made, whether or not the evidence about those issues has ultimately persuaded me that they constitute part of the repeated unreasonable behaviour. I consider that interpersonal relationship disputes are best resolved through the efforts of the parties and perhaps assisted by some form of facilitation or mediation. Any orders that I might make will likely favour one side over the other. Such orders will only be made after further evidence is received and submissions are made, the effect of which will be to reinforce established views that each party has of the other rather than to facilitate some form of reconciliation between the parties. The latter is much more likely to produce a lasting positive improvement in the working relationship between Ms Farah and Ms Purcell than any order that I might make. The better the relationship repair, the less likely it will be that orders are necessary. Although Ms Purcell has previously declined to embark upon a restorative process proposed by Mercy Education, I would urge her to reconsider. That the offer was made is, in my view, recognition that there is a relationship in need of repair. This is a good start.

[222] With this in mind, I propose for the parties’ consideration that they engage with each other in a series of mediated or facilitated meetings with the aim of repairing their relationship and engaging in a dialogue that will accommodate an ongoing professional working relationship and a safe working environment.

[223] If the parties are unwilling to engage with each other in the way I have suggested, then the parties are to file in my chambers within 14 days of the date of this decision an agreed form of directions which will facilitate the expeditious hearing and determination of the question whether orders should be made pursuant to s.789FF of the Act.

Conclusion

[224] For the reasons given, incidents eight, thirteen, fifteen and sixteen taken together, amount to repeated unreasonable behaviour by Ms Farah towards Ms Purcell and that behaviour created a risk to Ms Purcell’s mental health. Consequently, I am satisfied that Ms Purcell was bullied at work by Ms Farah. The parties are to give consideration to participating in a facilitated or mediated series of meetings with the aim of repairing an obviously damaged working relationship. If the parties, or one of them, are not willing to participate, the parties are to file consent directions in my chambers by 25 July 2016 to facilitate the expeditious hearing and determination of the question whether orders should be made pursuant to s.789FF of the Act.

DEPUTY PRESIDENT

Appearances:

Mr D. Matson of the IEU on behalf of Ms Purcell.

Mr R. Millar of Counsel on behalf of Ms Farah.

Mr J. Forbes of Counsel on behalf of Mercy Education.

Hearing details:

2015.

Melbourne.

November 9, 10, 11, 12 and 13.

December 21.

2016.

Melbourne.

March 23.

Final written submissions:

Applicant’s Outline of Submissions, 19 February 2016.

Outline of Final Submissions of Mary Farah, 10 March 2016.

Second Respondent’s Outline of Final Submissions, 16 March 2016.

Applicant’s Reply Submissions, 22 March 2016.

 1 Exhibit 2 at [3].

 2 Ibid at [5].

 3 Ibid at [7].

 4 Ibid at [9].

 5 Ibid at [12].

 6 Ibid at [14].

 7   Ibid; Exhibit 2, SP-2.

 8 Ibid at [15].

 9   Ibid.

 10   Ibid at [17]; Exhibit 2, SP-3.

 11 Outline of Final Submissions of Mercy Education Limited at [33].

 12   [2015] FWC 774.

 13   Ibid at [74] – [95].

 14 Section 789FD(2).

 15   Explanatory Memorandum to the Fair Work Amendment Bill 2013.

 16   Re Ms SB[2014] FWC 2104 at [52].

 17   Ms SB [2014] FWC 2104 at [49]-[53]; Re GC[2014] FWC 6988.

 18   Keen v Workers Rehabilitation & Compensation Corporation (1998) 71 SASR 42; [1998] SASC 6519; Re Ms SB[2014] FWC 2104 at [52].

 19   Mac v Bank of Queensland & Ors[2015] FWC 774 at [102].

 20 Exhibit 2 at [19].

 21 Ibid at [18].

 22   Ibid.

 23   Transcript PN760.

 24 Exhibit 2 at [20].

 25 Ibid at [21].

 26   Ibid.

 27   Ibid.

 28   Transcript PN741 – PN756.

 29 Exhibit 21 at [29].

 30   Ibid.

 31 Exhibit 18 at [27].

 32 See for example Exhibit 19 at [8].

 33   Exhibit 18 at [8]-[26] and then at [27].

 34   Transcript PN745 – PN757.

 35 Exhibit 21 at [25].

 36 Ibid at [30].

 37   Transcript PN2956 – PN2957.

 38   Transcript PN2958 – PN2961.

 39   Exhibit 2 at [22]; PN773 – PN798.

 40   Exhibit 21 at [31]; Exhibit 21, MF-2B.

 41   Transcript PN773 – PN783.

 42   Transcript PN794 – PN797.

 43   Exhibit 21, MF-2B.

 44   Transcript PN3512.

 45   Exhibit 18 at [27]; Transcript PN2975 – PN2995.

 46 Exhibit 21 at [31].

 47   Transcript PN3508.

 48   See for example Transcript PN2957 – PN2962 and PN2973 – PN2975.

 49   Transcript PN3012 – PN3016.

 50   Transcript PN3035 – PN3043.

 51   See Exhibit 21.

 52 Exhibit 18 at [27].

 53   Transcript PN3066 – PN3067.

 54   Transcript PN3508.

 55   Transcript PN3509.

 56   Transcript PN3531 – PN3540.

 57   Exhibit 21 at [31]; Transcript PN3512.

 58   Transcript PN3519.

 59   Transcript PN2987 – PN2989.

 60   Transcript PN2995 – PN3008.

 61   Transcript PN2973 – PN2977.

 62   Exhibit 21, MF-2D.

 63   Exhibit 21, MF-2E.

 64 Exhibit 32 at [13].

 65   Exhibit 2 at [25]; Exhibit 21 at [35]; Exhibit 32 at [11] – [14].

 66 Applicant's Outline of Submissions at [18].

 67 Exhibit 21 at [25].

 68   Transcript PN2958 – PN2962.

 69   Exhibit 32 at [12] – [13].

 70   Exhibit 2 at [24]; Exhibit 2, SP-5.

 71   Ibid.

 72   Exhibit 2, SP-5.

 73   Exhibit 21 at [36]-[41].

 74 Exhibit 2 at [25].

 75 Exhibit 21 at [41].

 76   Transcript PN3688 – PN3695.

 77   Transcript PN3647 and PN3696.

 78   Transcript PN3608 – PN3609.

 79 Exhibit 21 at [38].

 80 Ibid at [39].

 81 Ibid at [40].

 82   Transcript PN3660 – PN3673.

 83   Transcript PN3609 and PN3659.

 84   Transcript PN3659.

 85 Exhibit 21 at [30].

 86   Transcript PN3696.

 87   For example Mr Ruzbacky thought that Ms Purcell “most likely should have had an office”, see Transcript PN6894 – PN6897.

 88   Exhibit 2 at [26]; Exhibit 21, MF-3C.

 89 Exhibit 2 at [26].

 90   Exhibit 2, SP-7; Exhibit 21, MF-3D.

 91 Exhibit 21 at [54].

 92   Ibid.

 93   Ibid.

 94   Exhibit 2 at [27]; Exhibit 2, SP-8; Exhibit 21, MF-3E.

 95 Exhibit 2 at [27].

 96 Exhibit 21 at [55].

 97   Exhibit 21, MF-3E.

 98   Exhibit 2, SP-9; Exhibit 21, MF-3F – email from Applicant dated 1 June 2014, 3:07pm.

 99   Exhibit 21, MF-3F – Email from First Respondent dated 1 June 2014, 5:14pm.

 100   Exhibit 21, MF-3F – email from Applicant dated 1 June 2014, 5:45pm.

 101   Exhibit 2 at [27]; Exhibit 2, SP-9; Exhibit 21, MF-3G.

 102   Exhibit 21, MF-3C.

 103   Exhibit 21, MF-3F – email from First Respondent dated 1 June 2014, 2:39pm.

 104   Exhibit 21, MF-3F – email from Applicant dated 1 June 2014, 3:07pm.

 105   Ibid.

 106   Ibid.

 107   Exhibit 21, MF-3F – email from First Respondent dated 1 June 2014, 5:14pm.

 108   Exhibit 21, MF-3F – email from Applicant dated 1 June 2014, 5:45pm.

 109 Exhibit 21 at [61].

 110 Exhibit 2 at [28].

 111   Exhibit 2 at [29]; Exhibit 2, SP-10.

 112   Ibid.

 113   Exhibit 21 at [64]; Exhibit 21, MF-4B.

 114   Ibid; Exhibit 21, MF-4C.

 115 Exhibit 2 at [30].

 116   Ibid.

 117   Ibid.

 118 Exhibit 21 at [66].

 119   Ibid.

 120   Ibid at [66]-[67].

 121 Exhibit 2 at [30].

 122 Exhibit 21 at [70].

 123 Exhibit 2 at [30].

 124   Exhibit 24 at [7]; Exhibit 24, AM-1B.

 125   Ibid at [8]; Exhibit 24, AM-1C.

 126   Ibid at [9]; Exhibit 24, AM-1D.

 127   Transcript PN5859 and following.

 128   Exhibit 21, MF-4C; Transcript PN977.

 129   Transcript PN996.

 130   Transcript PN988 – PN996.

 131   Transcript PN1044.

 132 Exhibit 2 at [29].

 133   Exhibit 21, MF-4C.

 134 Exhibit 2 at [30].

 135   Ibid.

 136   Transcript PN3810.

 137   Exhibit 7.

 138   Ibid at [14]-[15].

 139   Exhibit 7, AD-1.

 140 Exhibit 7 at [15].

 141   Exhibit 7, AD-2 – email from First Respondent dated 17 June 2014, 10.42pm.

 142 Exhibit 2 at [38].

 143   Ibid.

 144 Exhibit 21 at [82].

 145   Ibid.

 146 Exhibit 7 at [15].

 147 Ibid at [13].

 148   Transcript PN3914 – PN3921.

 149   Exhibit 21 at [75]; Transcript PN3897 – PN3898.

 150   Transcript PN3903 – PN3905.

 151   Exhibit 7, AD2.

 152   Ibid.

 153   Transcript PN4247.

 154   Transcript PN3921 and PN4450.

 155 Exhibit 21 at [76].

 156 Exhibit 7 at [18]; Exhibit 8 at [12]; Exhibit 26 at [5].

 157   Exhibit 21 at [81]; Transcript PN4271 – PN4275.

 158 Exhibit 26 at [4].

 159   Transcript PN6168.

 160   Exhibit 26 at [5]; Transcript PN6185 – PN6194.

 161   Transcript PN6194.

 162   Exhibit 24 at [11]-[12].

 163   Exhibit 21 at [74]-[75].

 164   Transcript PN5984 – PN6016.

 165   Transcript PN5998.

 166   Transcript PN2232 – PN2237.

 167   Exhibit 2 at [38]; Transcript PN1108 – PN1113, PN1125 – PN1136.

 168   Applicant’s Outline of Submissions dated 19 February 2016.

 169   Transcript PN 6021 – PN 6022.

 170   Exhibit 7, AD 2.

 171   Exhibit 24, AM–1A.

 172 Exhibit 24 at [13].

 173   Exhibit 24, AM–1A.

 174 Exhibit 2 at [39].

 175 Exhibit 21 at [84].

 176 Exhibit 2 at [40].

 177   Ibid at [40]-[42].

 178   Transcript PN1125 – PN1136.

 179   Exhibit 13 at [18] – [19].

 180   Transcript PN2674 – PN2678.

 181 Exhibit 2 at [41].

 182   Ibid.

 183   See Transcript PN2677.

 184   See Transcript PN2675.

 185 Exhibit 2 at [40].

 186 Exhibit 9 at [24].

 187 Exhibit 2 at [43].

 188   Ibid.

 189   Ibid.

 190   Ibid.

 191   Ibid.

 192   Transcript PN1165.

 193   Exhibit 21 at [88]-[90].

 194 Ibid at [91].

 195 Ibid at [92].

 196 Ibid at [93].

 197 Ibid at [94].

 198   Transcript PN4361 – PN4362.

 199   Transcript PN4364.

 200 Exhibit 21 at [94].

 201   Ibid.

 202   Transcript PN4365 – PN4369.

 203   Transcript PN4391 – PN4396.

 204   Transcript PN4395.

 205   Transcript PN6131 – PN6133.

 206   Exhibit 2 at [45]-[46].

 207 Exhibit 2 at [48].

 208   Transcript PN4945 – PN4946.

 209   Exhibit 2 at [49]; Transcript PN1207.

 210   Exhibit 9 at [10]; Transcript PN4857 – PN4858; PN4875 – PN4879.

 211   Exhibit 9 at [10]; Transcript PN4873.

 212   Exhibit 2 at [50]-[51].

 213   For example: Exhibit 21 at [100] – [101]; Exhibit 2 at [46]; Exhibit 3 at [30]; Exhibit 19 at [9]; Exhibit 10 at [6]; Exhibit 2 at [107]; Exhibit 13 at [10]; Transcript PN1174 – PN7173; PN1190; PN2602; PN2612; Exhibit 15; Exhibit 23.

 214   Transcript PN2282; PN1195.

 215 Exhibit 21 at [109].

 216 Applicant’s Outline of Submissions at [67].

 217   Transcript PN2282.

 218   Transcript PN4923 – PN4937.

 219 Exhibit 21 at [109].

 220 Exhibit 2 at [49].

 221 Transcript PN4948 – PN4955; Final Outline of Submissions of Mary Farah at [54].

 222   Exhibit 21 at [121]-[123].

 223   Exhibit 21, MF-7A.

 224   Exhibit 21, MF-7B.

 225   Exhibit 21, MF-7B.

 226 Exhibit 2 at [56].

 227   Ibid at [58]-[62].

 228   Ibid at [64]; Exhibit 2, SP-15.

 229 Exhibit 2 at [65].

 230   See Exhibit 1 at [4]-[12]; Transcript PN94 – PN125; Transcript PN189.

 231 Transcript PN1281; PN5204; PN5208; Exhibit 11 at [19].

 232   Transcript PN5252 – PN5256 (note that at PN5256, the second sentence of transcript should read “it was the only one to which he was ever assigned?”).

 233 Applicant’s Outline of Submissions at [79].

 234   Transcript PN6163.

 235   Transcript PN6260.

 236   Transcript PN6264 – PN6265.

 237   Transcript PN6276 – PN6281.

 238   Transcript PN6968 – PN6969.

 239   Exhibit 21, MF-7B; Transcript PN5238.

 240 Exhibit 21 at [123].

 241   Exhibit 21, MF-7B.

 242   Exhibit 26 at [1]; Transcript PN6162 – PN6163.

 243   Transcript PN5252 – PN5256.

 244   Transcript PN1593; PN5779.

 245   Transcript PN5211 – PN5213; PN5252 – PN5256.

 246   Transcript PN5201.

 247   Transcript PN5204.

 248   Transcript PN5207 – PN5209.

 249   Transcript PN1279.

 250   Victorian Catholic Education Multi-Enterprise Agreement 2013, clause 24.1(a).

 251   Transcript PN6965 – PN6969.

 252   Exhibit 21 at [129]-[130].

 253 Exhibit 2 at [66].

 254 Ibid at [67].

 255   Ibid at [68]; Exhibit 2, SP-16.

 256   Exhibit 21 at [130(c)].

 257   Transcript PN5283 – PN5287.

 258 Exhibit 21 at [131].

 259 Ibid at [133].

 260 Ibid at [134].

 261   Exhibit 2, SP–16.

 262 Exhibit 33 at [15].

 263 Exhibit 2 at [68].

 264 Exhibit 21 at [130].

 265   See Transcript PN5264 – PN5273.

 266   Transcript PN6967.

 267   Exhibit 2, SP-16.

 268   Exhibit 21, MF-8C; Exhibit 28, PM-1A.

 269 Exhibit 28 at [10].

 270   Exhibit 28, PM-1B.

 271   Exhibit 21, MF-8B

 272   Exhibit 2, SP-17; Exhibit 21, MF-8C; Exhibit 28, PM-1C.

 273 Exhibit 28 at [15].

 274   Ibid.

 275 Exhibit 2 at [69].

 276   See Victorian Catholic Education Multi Enterprise Agreement 2013; Exhibit 21, MF-8A.

 277   Exhibit 21, MF-8B.

 278 Exhibit 21 at [137].

 279 Ibid at [136].

 280 Ibid at [139].

 281   Exhibit 2, SP-17.

 282   Transcript PN6538.

 283 Exhibit 28 at [14].

 284   Exhibit 21 at [135] – [139]; Exhibit 28 at [11] – [14].

 285   Transcript PN5386 – PN5387.

 286   Transcript PN5388; PN6509.

 287   Transcript PN5388.

 288   Applicant’s Outline of Submissions at [100] – [103].

 289   Exhibit 2, SP-17 at p.2.

 290   Exhibit 21, MF-8C.

 291   Exhibit 2, SP-17 at p.2.

 292   Exhibit 2, SP-17 at p.3.

 293   Transcript PN5388.

 294 Exhibit 28 at [15].

 295 Exhibit 2 at [70].

 296   Ibid.

 297   Exhibit 21 at [142]-[146].

 298   Exhibit 3 at [40]; Transcript PN1420 – PN1426.

 299   Exhibit 14 at [5] – [6]; Transcript PN2660 – PN2665.

 300   See Exhibit 2 at [70];Applicant's Outline of Submissions at [111]; Transcript PN2662.

 301 Exhibit 2 at [70].

 302   Ibid at [71]; Exhibit 2, SP-18.

 303   Exhibit 2 at [72]-[73]; Exhibit 2, SP-20.

 304   Exhibit 2, SP-22.

 305   Exhibit 2 at [75]-[77].

 306   Exhibit 21 at [147]-[149].

 307 Applicant’s Outline of Submissions at [118].

 308   Exhibit 24 at [16] – [19].

 309   Exhibit 21, MF-10B.

 310   Exhibit 21, MF-10E.

 311 Exhibit 21 at [157]; Exhibit 2 at [81].

 312 Exhibit 2 at [82].

 313   Transcript PN6558 – PN6559.

 314   Transcript PN6590 – PN6601.

 315   Exhibit 2 at [80]-[83].

 316   Exhibit 2 at [84]-[85].

 317 Exhibit 28 at [19].

 318 Exhibit 21 at [160].

 319 Exhibit 28 at [19].

 320 Exhibit 21 at [160].

 321   Ibid.

 322   Ibid.

 323   Ibid.

 324   Ibid.

 325   Ibid.

 326   Exhibit 2, SP-24.

 327 Exhibit 21 at [159].

 328   Transcript PN6570 – PN6575.

 329   Exhibit 2, SP-29.

 330   Exhibit 2, SP-29.

 331   Exhibit 2, SP-30.

 332   Exhibit 2, SP-30.

 333   Transcript PN3140 – PN3143.

 334   Transcript PN3148 – PN3158.

 335   Transcript PN3141 – PN3142.

 336 Applicant’s Outline of Submissions at [134]; Outline of Final Submissions of Mary Farah at [88].

 337   Exhibit 2, SP-31.

 338 Exhibit 2 at [109].

 339   Transcript PN5687.

 340   Transcript PN5685 – PN5687.

 341 Applicant’s Outline of Submissions at [135].

 342   Transcript PN4776.

 343   Transcript PN3095.

 344   For example, see Transcript PN3085 – PN3088; PN3114.

 345   Transcript PN3095.

 346   Exhibit 2, SP-30.

 347   Transcript PN5763.

 348   Applicant’s Outline of Submissions at [135] - [136].

 349 Ibid at [137].

 350 Ibid at [138].

 351   Ibid.

 352 Ibid at [139].

 353   Applicant’s Outline of Submissions at [141]; Transcript PN5731 – PN5738.

 354   Transcript PN5695 – PN5706.

 355   Applicant’s Outline of Submissions at [143]; Exhibit 2, SP-31.

 356   Transcript PN1599.

 357 Applicant’s Outline of Submissions at [143].

 358   Exhibit 2, SP-29.

 359   Applicant’s Outline of Submissions at [145] – [146].

 360   Transcript PN5963.

 361 Outline of Final Submissions of Mary Farah at [90].

 362 Applicant’s Outline of Submissions at [142]; Transcript PN5741 – PN5751; Exhibit 2 at [109].

 363   Transcript PN6834 – PN6835.

 364   Transcript PN5687.

 365   Transcript PN5688; PN5689 – PN5706.

 366   Transcript PN1594.

 367   Exhibit 2 at [113]; Transcript PN1594.

 368 Applicant’s Outline of Submissions at [151].

 369   Ibid at [148]; Exhibit 2 at [113]; Transcript PN1593.

 370   Exhibit 30.

 371   Exhibit 30 at p.4.

 372 Applicant’s Outline of Submissions at [149].

 373   Transcript PN5764; PN5769; PN5773; PN5768.

 374   Transcript PN5771 – PN5772.

 375   Transcript PN5793.

 376   Transcript PN5784 – PN5786.

 377   Transcript PN5793 – PN5795.

 378   Applicant’s Outline of Submissions at [150]; Transcript PN5791 – PN5793.

 379   Ibid; Transcript PN5794 – PN5795.

 380   Ibid; Transcript PN5781 – PN5783.

 381   Exhibit 2 at [113]; Transcript PN1593; as to departure from established procedures supporting a finding of not carried out in a reasonable manner, see Yu v Comcare [2010] AATA 960.

 382   Exhibit 1 at [14] – [15].

 383   Despite the assertion that most leadership have mentors (Transcript PN5769), no other teachers have had mentors unilaterally allocated to them.

 384   Exhibit 2 at [113]; Transcript PN1593; PN57765; PN5779.

 385   Transcript PN1593; PN1603.

 386 Exhibit 2 at [113].

 387   Georges v Telstra Corporation Limited [2009] AATA 731.

 388 Applicant’s Outline of Submissions at [153].

 389 Final Outline of Submissions of Mary Farah at [92].

 390   Final Outline of Submissions of Mary Farah at [93]; Transcript PN5769.

 391   Transcript PN5793; PN5795.

 392   Transcript PN5770.

 393   Transcript PN5768.

 394   Transcript PN3095; PN3085 – PN3088 and PN3114.

 395   Exhibit 30 at p.4.

 396   Transcript PN5771.

 397   Transcript PN5770.

 398   Transcript PN6398 – PN6399.

 399   Jones v Dunkel (1959) 101 CLR 298.

 400   Exhibit 30 at p.18.

 401   Transcript PN5791 – PN5788; PN5793 – PN5795 and PN5781 – PN5783.

 402   Transcript PN1593; PN5776; PN5779.

 403   Re Ms SB[2014] FWC2104 at [44]; See also Newcastle Wallsend Coal Co Pty Ltd v Workcover Authority (NSW) (Inspector McMartin) [2006] NSWIRComm 339; 159 IR 121 at [301].

 404   Thiess Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252, 78 NSWLR 94 at [65]-[67]; Abigroup Contractors Pty Ltd v Workcover Authority of New South Wales (2004) 135 IR 317 at [58]; Ms SB [2014] FWC 2104.

 405   Macquarie Dictionary definition.

 406   Re CG [2014] FWC 6988 at [49]-[50].

 407   Mac v Bank of Queensland & Ors[2015] FWC 774.

 408   Exhibit 2, SP-34; See also Report of Melanie Hunter, Psychologist filed 23 September 2015.

 409 Applicant’s Outline of Submissions at [164].

 410   Ibid at [165] – [166].

 411   See Transcript PN13 – PN28.

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