[2020] FWC 5890

FAIR WORK COMMISSION

DECISION

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

Ms Virginia Wills
v
The Government of New South Wales, Sydney Trains; Transport for NSW; Mr Grant Marley
(AB2020/472)

DEPUTY PRESIDENT CROSS

SYDNEY, 4 NOVEMBER 2020

Application for an FWC order to stop bullying.

Introduction

[1] On 17 July 2020, Ms Virginia Wills (the Applicant) filed an application pursuant to s.789FC of the Fair Work Act 2009 (the Act) for orders to stop bullying at work. The application alleged that bullying occurred in the course of the Applicant’s employment as Head of Investigations – Fraud & Corruption Investigations for Sydney Trains. On 4 September 2020, the Applicant filed an amended application pursuant to s.789FC of the Act (the Application). While the original application filed on 17 July 2020 named Transport for NSW and the Secretary for the Department of Transport as an organisational respondent, together with Mr Grant Marley as a person against whom bullying was alleged, the Application eventually identified three persons against whom bullying was alleged, being:

(a) Grant Marley, Associate Director, Workplace Conduct and Investigations, Transport for NSW (the Second Respondent);

(b) James Zeng, Senior Legal Counsel - Employment & Regulatory Group

Legal Services & Information Access, Transport for NSW (the Third Respondent); and

[2] In this decision, Transport for NSW and the Secretary for the Department of Transport shall be referred to as the First Respondent. The First, Second, Third and Fourth Respondents shall be collectively referred to as the Respondents.

[3] The matter was originally allocated to Deputy President Clancy, who on 22 July 2020, refused an application by the Applicant for an interlocutory order. The Applicant appealed that decision. While permission to appeal was granted, the appeal was dismissed 1. In late July 2020, the matter was re-allocated to my Chambers.

The Witnesses

[4] The Applicant gave evidence on her own behalf by way of two principal witness statements, dated 17 July and 4 September 2020. Each of those statements annexed numerous attachments. A further statement in reply dated 19 September 2020 was submitted. The Applicant was cross-examined, and while not crucial to the determination of the matter as the focus was primarily on the reasonableness of the actions taken by the Respondents, I observed in the Applicant a tendency to be less than responsive in her evidence. The Applicant was prone to seize opportunities to advance by way of non-responsive answers to questions, evidence that she thought would assist her succeeding in her application.

[5] The Respondent relied upon three witness statements of Mr Marley dated 14 August, 20 August and 16 September 2020. Mr Marley was also cross-examined. Mr Marley presented as a responsive witness who sought to answer the questions asked of him to the best of his abilities. Where the evidence of Mr Marley and the Applicant differed on an issue of relevance, I have preferred the evidence of Mr Marley.

(a) The Applicant’s Evidence

[6] The Applicant’s statements annexed and referred to correspondence between the parties that is outlined in this decision under the heading “The Factual Background” below. Other than that correspondence, the Applicant gave the following relevant evidence in her statements:

(a) The Applicant wholly denies the allegations made against her and is confident that, should she be provided with the requisite documents, she will be able to compellingly demonstrate that the Allegations are of no substance, and are false.

(b) As the Head of Investigations, Sydney Trains, the Applicant had oversight of the conduct of investigations. Sydney Trains provides employees who are subject to similar allegations as those made against the Applicant, with unrestricted access to their computer and with copies of documents that are relevant to providing a response to allegations. The Applicant provided a specific example of such other investigation.

(c) The Applicant also stated that it is highly unusual for senior executive staff who are deployed to perform functions for Sydney Trains to be investigated by Transport for NSW. Further specific examples were provided.

(d) The Applicant noted that the majority of the allegations against her relate to events that occurred 4 to 5 years ago. She has managed thousands of investigations over that time, and her recollection of events has necessarily been impacted by the passage of time.

(e) Further, important aspects of the Applicant’s defence to allegations rely on weekly updates and running sheets that relate to various investigations. Those weekly updates and running sheets are detailed and extensive documents that the Applicant says she needs to review and examine in some detail before she is able to provide a response. She would not be able to memorise what is contained in those documents within a 7 hour period.

(f) During 2016 and 2017, the Applicant was hospitalised for a period of over 22 weeks and has little recollection of various events during that time. The Applicant states she should be afforded the opportunity to review the 11 sample investigations referred to in the allegations made against her in their entirety before she is required to respond, given that some of those investigations were extremely large and complex Independent Commission Against Corruption (ICAC) investigations.

(g) The Applicant is 58 years old, and has 20 years of service with the NSW government. The Applicant estimates her prospects for seeking further employment at the same level and wage is virtually nil.

(h) The Applicant is currently suffering significant financial burdens and health issues within her family, and the only income she receives is from her employment with the First Respondent, for which she receives around $10,500 net per month. If she were to lose that income, the Applicant estimates that she would potentially have to declare herself bankrupt.

(i) The Applicant has been unfit to engage in the investigation process since 25 June 2020.

(j) The office the Applicant worked from at 477 Pitt Street, is 650 metres from Lee Street, where the inspection of documents was proposed to occur. The Applicant often attended Lee Street for meetings, as did the majority of Sydney Trains employees based in 477 Pitt St.

(b) Mr Marley’s Evidence

[7] Mr Marley’s statements also annexed and referred to correspondence between the parties that is outlined in this decision under the heading “The Factual Background” below. Other than that correspondence, Mr Marley gave the following relevant evidence in his statements:

(a) Mr Marley stated that he became involved in the investigation of misconduct allegations against the Applicant in April 2019. These allegations were referred to the First Respondent by ICAC, following receipt of a complaint by ICAC from an individual who made a public interest disclosure. The First Respondent was required by ICAC to undertake preliminary inquiries into the allegations against the Applicant and other members of the Sydney Trains Fraud and Corruption Investigation Unit (FCIU) and report back to ICAC. Those preliminary inquiries established sufficient concerns that Ms Wills and other staff may have engaged in serious misconduct and may also constitute corrupt conduct as defined by the Independent Commission Against Corruption Act (the ICAC Act).

(b) Independent investigators, Ernst and Young (EY), were engaged in January 2020 to undertake the further investigation into the concerns regarding the conduct of the Applicant and other staff. In March 2020, sufficient evidence had been identified to support a decision to remove the Applicant and other staff from the workplace while the investigation into the alleged misconduct continued. Based on the further inquiries conducted in the investigation, detailed allegations were provided to the Applicant in correspondence dated 1 June 2020.

(c) Mr Marley stated that the ten week delay between the issuing of the stand down letter and letter of allegations dated 1 June 2020, occurred as a consequence of the EY investigators need to access and interrogate a large volume of data and records in order to crystallise the allegations and discharge the obligations imposed on the First Respondent by ICAC. The investigators were unable to appropriately access information and data whilst the Applicant and her colleagues were at work.

(d) Mr Marley considered it appropriate to provide a seven day response period as the allegations were outlined in detail and specific terms. The seven day period was standard practice in the First Respondent’s disciplinary procedures.

(e) Mr Marley stated that the position adopted by the First Respondent in not releasing confidential documents in an unrestricted fashion, and not providing unrestricted access to employee laptops, has not been limited to the Applicant. It has been consistently adopted with all three employees of the FCIU involved in this investigation and is a position that was reached after taking into consideration:

(i) the fact that one of the respondents to the investigation into the FCIU had deleted information on his mobile phone prior to complying with the request to return his work phone;

(ii) one of the allegations against the Applicant involves a breach of confidentiality;

(iii) the importance of preserving IT and data contained on the Applicant’s laptop;

(iv) the Applicant’s request for documentation, being extensively broad, involved numerous documents, some of which were located on legacy systems that may not have been available through ‘imaging’ data; and

(v) accessing data on legacy RailCorp and/or Sydney Trains and Transport for NSW servers would require assistance from staff with information technology expertise to navigate the systems due to the manner in which the data was recovered and retained.

(f) Regarding the premises at which inspection of documents and the laptop could occur, Mr Marley stated that the Applicant's colleagues did not work out of the Lee Street office. The access was to be exercised in circumstances where the COVID-19 restrictions meant that there were very few employees in Lee Street over that period. Supervised access was to be conducted in a private office with Mr Marley in attendance.

(g) Mr Marley formed the view that with the assistance of her lawyers and the various accommodations offered by the First Respondent, the Applicant could have responded to the allegations provided she deferred to the First Respondent’s restrictions to protect confidential and proprietary information. Those requirements which had been proposed relating to access and the provisions of information to the Applicant were consistent with the approach and practices of the First Respondent relating to an investigation of this kind.

The Factual Background

[8] In the below factual recitation there are numerous extracts from the correspondence sent by the Respondents to the Applicant. Those recitations have been necessary as the case advanced by the Applicant has asserted, at least in part, that such correspondence constituted bullying behaviour. In that circumstance, the actual content of such correspondence from the Respondents is a material consideration, as foreshadowed by the Full Bench in their decision dismissing the Applicant’s appeal. 2

[9] On Wednesday 18 March 2020, the Applicant was invited to a meeting with the Assistant Executive Director People & Change of the Respondent, Mr David Hyland. Also in attendance at the meeting was Mr Zeng. At the meeting, the Applicant was handed correspondence dated 16 March 2020, that advised the Applicant that she was directed not to attend work as an investigation was being conducted into allegations against her (the Stand Down Letter). The Applicant was also directed to hand over her identification card, mobile phone, laptop and iPad, and was escorted back to her office to collect her personal possessions. She was then escorted into the carpark.

[10] On Monday 1 June 2020, the First Respondent sent to the Applicant a letter (the Letter of Allegations) setting out 15 detailed allegations (the Allegations) relating to events that allegedly occurred over a period of 4 years. The Letter of Allegations noted that the investigation was being undertaken by EY on behalf of the First Respondent, and required the Applicant to respond to the Allegations within one week of the date of the Letter of Allegations.

[11] On 5 June 2020, the Applicant, through her Solicitors, requested a period of three weeks to respond to the Letter of Allegations, and further requested copies of key documents (which were not outlined in the letter but which were to be identified “shortly”) and access to her work laptop to enable the Applicant to provide a meaningful response to the Allegations (the Request for an Extension).

[12] Later on 5 June 2020, Mr Marley sent the Applicant’s Solicitors an email (the 5 June Email), which required the Applicant’s response be provided by 22 June 2020. The letter noted the confidentiality of the First Respondent’s documents and indicated that the First Respondent was prepared to consider a request to inspect documents under supervision, and indicated a preparedness to allow supervised access to the Applicant’s laptop.

[13] On 10 June 2020, the Applicant’s Solicitors sent correspondence to Mr Marley (the 10 June Letter). The 10 June Letter contained a request for numerous copies of documents which were itemised and described in detail, and disputed that it was reasonable to deny the Applicant access to copies of the requested documents. The 10 June Letter also stated “We are instructed that limited supervised access to our client’s laptop will not be a useful exercise, particularly in circumstances where it is proposed that our client will not be permitted to make copies of any relevant documents”. The 10 June Letter also alleged that there was a conflict of interest in the way the investigation of the Allegations was being conducted, and alleged that the manner that the investigation was being conducted constituted bullying within the meaning of s.789FD of the Act.

[14] On 17 June 2020, the Applicant’s Solicitors sent correspondence to Mr Marley seeking a response to the 10 June Letter.

[15] On 18 June 2020, Mr Marley responded to the 10 June Letter and the 17 June Letter (the 18 June Letter). The 18 June Letter addressed the allegations of bias and bullying. Regarding requests for documents and information, the 18 June Letter, before stating in significant detail the requested documents to which the Applicant would, or would not, have access, stated as follows:

It is noted that the request for documentation contained in your letter is extensive. For ease of review this response utilises the numbering reference contained within your letter.

In considering the requested documentation it is noted that there are a number of identified documents which have not been sourced for the purposes of the investigation. Should Ms Wills consider these documents to be relevant to the investigation she has the opportunity to advise the investigators as to their relevance in her written response and/or at interview. Ms Wills will also be given an opportunity to identify and locate documents to assist her response.

The documents requested in your letter which are in the possession of the investigators and are being considered for the purposes of the investigation will be made available for Ms Wills to review. However, Mr Wills will not be provided access to documents which are considered to be confidential. These documents are identified throughout this letter.

Ms Wills will also be provided the opportunity to review her Outlook account to identify emails or calendar information she considers relevant to her response to the allegations.

Copies of documents will not however be provided. The opportunity offered to Ms Wills to review identified documents and her Outlook account in addition to identify and locate relevant documentation will be provided under supervised access at Transport for NSW premises. Ms Wills has the ability to draw to the attention of the investigator any relevant documents, including emails, she considers important and relevant to the investigation. Documents and emails Ms Wills identifies receipt of her written response. will be made available to her during any interview she participates in with the investigators following receipt of her written response.

Arrangements will be made to provide Ms Wills supervised access to her Transport Outlook account and Sydney Trains systems to enable her to review the abovementioned material. Subject to Ms Wills’ agreement, an appropriate time and location will be arranged and Ms Wills will be provided access for up to 7 hours to undertake the reviews she requires.

Once Ms Wills has had an opportunity to review the documentation she will be provided a further two weeks to provide her written response.

Documents referenced at Point 7(a) to (d) will be provided by separate emails due to the size of the documents requested.

The following information is provided in regards to each of the items identified in your

correspondence:

[16] On 22 June 2020, Mr Marley sent an email (the 22 June Email) to the Applicant’s Solicitors which requested that the Applicant attend the First Respondent’s premises on 25 June 2020 at 9:00am to review the requested documents, under his supervision.

[17] On 23 June 2020, the Applicant’s Solicitors sent email correspondence to Mr Marley which stated that the location the First Respondent had suggested was inappropriate and requested that the review of documents take place at a different location.

[18] On 23 June 2020, Mr Marley sent the Applicant’s solicitors email correspondence (the 23 June Email) which noted that the proposed inspection location was a different site to the Applicant’s usual workplace, and that the access the Applicant sought may require technical assistance only available at the site proposed.

[19] On 24 June 2020, the Applicant’s Solicitors advised Mr Marley that the Applicant was unfit to attend the inspection of documents, and provided a medical certificate certifying her as being unfit for work. Mr Marley therefore re-scheduled the inspection of documents to 9 July 2020. That re-scheduling was confirmed by Mr Marley on 3 July 2020, by a letter to the Applicant’s Solicitors (the 3 July Letter).

[20] On 6 July 2020, the Applicant’s Solicitors sent Mr Marley correspondence which requested that the Applicant be provided copies of the requested documents and access to her laptop, enclosed a draft bullying application, and attached a medical report dated 25 June 2020, from the Applicant’s treating psychologist. That medical report provided:

“My name is Neil Zandberg and I am a Clinical Psychologist working Manly. I am the treating psychologist for Virginia Wills and I am writing this letter at her request and with her permission.

Ms. Wills was referred to me by her GP, Dr Ashley Collard on a Mental Health Care Plan in March, 2020. She is significantly depressed and highly anxious in the context of recent severe work stress in her job as Head of Investigations, Fraud and Corruption Investigations, Sydney Trains, a position she has held for nineteen years. Currently, she is suspended from her position pending allegations and has been given sick leave from her GP. She attends sessions with me weekly.

Ms. Wills is currently very unwell and this request to attend the office connected to where she and her team were marched from the premise is unreasonable and frankly, dangerous. She feels harassed and bullied by this action of her employer and it appears to me that her feelings are justified.

In my clinical opinion, Ms. Wills is unable, at this time, to respond to this instruction as her attention, concentration and focus has been severely affected by her depression. The persistence that Sydney Trains has shown in pursuing this matter has had a detrimental effect on Ms. Wills mental wellbeing.

If you have any question about the contents of this letter, please feel free to contact me on the above number.

Regards,

Neil Zandberg
Clinical and Consulting Psychologist”

[21] On 7 July 2020, Mr Marley sent correspondence to the Applicant’s Solicitors (the 7 July Letter) which was erroneously dated 6 July 2020, and which was as follows:

I refer to your letter dated 6 July 2020 regarding Ms Virginia Wills. I note your further request to provide copies of documents requested in previous correspondence and allowing Ms Wills access to her laptop.

As previously advised, given the nature of the documents requested, it has been determined that it is not appropriate for copies of these to be provided to Ms Wills. Transport for NSW does not consider that copies of documents are necessary to be provided for Ms Wills to be afforded procedural fairness under the investigation process or required by Ms Wills to respond to the allegations.

Ms Wills has the opportunity to outline to the investigator any documents she would like the investigator to review in response to the allegations and any documents that may support her assertions that she has not committed any form of misconduct.

I reject your claim that Transport for NSW’s actions in this matter amount to bullying of Ms Wills. Transport for NSW and Sydney Trains consider it to be reasonable management action carried out in a reasonable manner following discovery of potential misconduct by your client. Transport for NSW's offer to allow Ms Wills to inspect the documents and providing her an extension to respond to the allegations has been more than reasonable in the circumstances and is not something Transport for NSW considers is required to undertake a workplace investigation.

Notwithstanding Transport for NSW’s position above, should your client proceed with an Anti-Bullying Application with the Fair Work Commission, Transport for NSW accepts electronic service by email to [deleted] and Mr James Zeng, Senior Legal Counsel, Employment & Regulatory, Transport for NSW will be the organisation’s contact person.

Despite numerous offers, Ms Wills has not taken up the opportunity to inspect documents and be given access to her laptop to assist her in responding to the allegations. The offer for Ms Wills to review the documents requested and access her laptop on Thursday 9 July 2020 under supervision remains available.

As previously advised, Ms Wills’ written response to the allegations remains due 14 days after this date, being 23 July, 2020, whether she attends to review the documents as offered or not. Should Ms Wills not take up the opportunity to provide a written response to the allegations, the investigation will proceed and the investigator will make findings of fact based on the information available.

I appreciate that participating in a workplace investigation may be challenging for your client and remind your client that she continues to be able to access our Employee Assistance Program by calling 1300 364 213.

[22] On 8 July 2020, the Applicant’s Solicitors sent Mr Marley an email which referred to the medical report of 25 June 2020, from the Applicant’s treating psychologist, and reiterated that the Applicant’s treating psychologist was of the opinion that it was unsafe for the Applicant to attend the proposed document review the following day.

[23] On 10 July 2020, Mr Marley sent correspondence to the Applicant’s solicitors (the 10 July Letter) which provided as follows:

I refer to your email of 8 July 2020 in which you provided a medical certificate indicating Ms Virginia Wills is unable to work from 8 July 2020 and 17 July 2020 and therefore advised that she was unable to attend to review documents on 9 July 2020 as offered.

I note that you have reiterated the opinion of Ms Wills’ psychologist that it is unsafe for her to attend the proposed document review. In considering the psychologist’s report you provided on 7 July 2020, it is noted that the psychologist determined that Ms Wills attending the ‘office connected to where she and her team were marched from’ is unreasonable and dangerous. It appears that in preparing her report, Ms Wills’ psychologist may not have been fully aware of the careful arrangements Transport for NSW had put in place to accommodate Ms Wills’ review.

The sensitivity of Ms Wills’ situation has been a significant consideration in making the arrangements for her to review the documents requested. It is for this reason that an alternative office which is not connected to the one in which Ms Wills normally works was chosen and that arrangements were made for a discrete location with a high level of privacy within that office to enable her to undertake the review. This location also provides for Ms Wills to have the appropriate systems access and support which may not be available to the same degree at differing locations.

Transport for NSW’s offer to allow Ms Wills to inspect the requested documents under supervision remains available to her and can be arranged to suit her availability. However, on the analysis that our Lee St, Chippendale office is somehow connected to the office (Pitt St) “where she and her team were marched from”, and then it is only an extension of that reasoning that any Transport agency office is somehow connected to Pitt St. It is noted that our Lee St, Chippendale office is not a Sydney Trains premises but a Transport for NSW office.

Notwithstanding the psychologist’s statement, Transport for NSW is prepared to consider any reasonable accommodation Ms Wills may require to allow her to inspect the documents. Transport continues to be of the view that the inspection of documents will not be necessary for your client to respond to the written allegations and your client has not properly outlined or articulated how the failure to inspect those documents will inhibit or somehow prevent her from responding to the written allegations.

Accordingly, in continuing to extend this offer it is noted that Ms Wills’ written response to the allegations remains due on 23 July 2020. As previously advised, should Ms Wills not take up the opportunity to provide a written response to the allegations, the investigator will make findings of fact based on the information available.

[24] As noted above, on 17 July 2020, the Applicant filed an application pursuant to s.789FC of the Act for orders to stop bullying at work.

[25] On 24 July 2020, Mr Marley sent correspondence to the Applicant’s solicitors (the 24 July Letter) which provided as follows:

I refer to my letter of 1 June 2020 which provided details of the allegations against you and requested your written response to those allegations.

Since that date Transport for NSW has been in consultation with your legal representatives regarding your response and opportunities to access your laptop and view documentation related to the allegations. Arrangements were subsequently made for you to attend Transport for NSW premises for the purposes of accessing your laptop and reviewing documentation on 9 July 2020 following which you would have 14 days to provide your written response.

My correspondence to your legal representatives dated 10 July 2020 confirmed that your written response to the allegations remained due 14 days after the arrangements for you to review the documentation irrespective of your decision not to avail yourself the opportunity to do so. Your written response to the allegations was therefore required to be submitted by 23 July 2020.

My correspondence of 10 July 2020 also advised that if you failed to provide a written response by 23 July 2020, the investigation would continue in the absence of your response and the investigation would work towards making findings based on the information available at the time.

As no written response has been received from you, I am now writing to you to offer the opportunity to attend an interview with the investigators to discuss the allegations.

As previously advised the investigation is being undertaken by Ernst and Young (EY). The

arrangements for the interview are as follows:

Time: 1:00pm
Date: Friday 31 July 2020
Interviewers: Nick Maginot (Partner, EY)
Chloe Woolf (Senior Manager, EY)

Given current work restrictions the interview will be conducted via video link. The interview will be audio recorded.

Should you wish to provide any information you consider relevant to the investigation, the opportunity to do so in writing prior to and/or at the interview remains available to you.

You may invite a support person to accompany you during the interview. This person may accompany you at the location at which you will be for the purposes of the interview or they may attend remotely by way of an invited attendee to the video meeting. The support person may be a union or legal representative. It is not appropriate for the support person to be someone who has been involved in the matter, or whose availability may lead to a delay in the investigation. Your support person cannot take an active part in the interview and you will be requested to respond to questions yourself.

Your advice as to whether you agree to participate in the interview would be appreciated by no later than close of business on Tuesday, 28 July 2020. Once you have confirmed your attendance for the interview, Ms Woolf will contact you to confirm the video arrangements.

Should no response to this invitation to attend be received, or you choose not to participate in the interview, the investigators will conclude their investigation and make findings regarding the allegations in the absence of your response.

As outlined in my previous correspondence, given the sensitive nature of the allegations, and to protect you and others who are involved, you are directed not to discuss this matter with anyone other than legal advisers, a nominated support person or immediate family members. You are required to keep the details of the matters raised in this correspondence confidential. This requirement also applies to your advisers, support person and immediate family members, to whom you should make it clear that the details of this letter and the investigation are confidential.

I appreciate that this may be a difficult time for you and take the opportunity to remind you that the Employee Assistance Program (EAP) is available should you or your family need assistance at any time during the investigation. The EAP provides professional confidential assistance to employees and their family members. The EAP can be contacted on 1300 364 213.

[26] On 28 July 2020, the Applicant’s Solicitors sent Mr Marley a letter (the 28 July Letter) which enclosed a report from the Applicant’s treating psychologist that stated the Applicant was unfit to attend an interview with the investigators from EY on 31 July 2020, and sought confirmation that the First Respondent would not conclude its investigation and make findings in relation to the Allegations in the absence of a response from the Applicant.

[27] On 30 July 2020, the First Respondent replied to the 28 July Letter (the 30 July Letter). In that letter the Respondent, after noting the confidential nature of the documents sought by the Applicant and that that the Applicant had on numerous occasions been invited to the First Respondent’s premises to access her laptop and review documents and systems under supervised access, stated as follows:

…As raised in the FWC proceedings, the investigation being conducted by Transport for NSW also involves a Sydney Trains employees, and the investigation must progress in accordance with the timeframes stipulated in the Sydney Trains Enterprise Agreement.

(b) Should Ms Wills not provide a written response to the allegations, and in the absence of her attending an interview with the investigators, the investigators will be instructed to finalise their investigation based on the information they have available to them. In addition to the reason outlined in subparagraph (a) above as to statutory requirements under the Sydney Trains Enterprise Agreement, Transport for NSW has a duty to deal with misconduct as it arises within its workforces, particularly alleged corrupt conduct. Whilst your client has provided information recently which indicates she is unfit to participate in a process, this was not the reason previously provided and Transport for NSW considers that your client has had ample opportunity, following the receipt of the written allegations, to have provided a response.

(c) As part of the disciplinary process, following the completion of the investigation report and should there be adverse findings against your client, Transport for NSW Professional Standards Unit (PSU) will then take over the management of the process including putting relevant information before the decision-maker, in this case the Secretary. If there are no adverse findings, your client will be informed and a discussion will occur as to her return to duties. As with the process that applies to disciplinary proceedings involving Transport Service Senior Executives, Ms Wills would be advised of the investigation findings and provided an opportunity to make representations to the decision maker as to any preliminary decision before any final decision is made as to what action is to be taken.

(d) As Associate Director, Workplace Conduct and Investigation for Transport for NSW, my role is to coordinate the investigation of alleged misconduct. I play no role in the decision making process once the investigation process has been completed, whether or not adverse findings are made. As to Mr Zeng and his role as Senior Legal Counsel, Employment and Regulatory, he is aware of his professional duties and it is a matter for him as to whether he recuses himself and when he does so. In any event, it would be more appropriate for you to raise these matters with him directly.

(e) Should there be adverse findings, as Ms Wills is employed in the Transport Service of New South Wales, the Secretary of the Department of Transport as assisted by the PSU will be involved in relation to any disciplinary proceedings.

Given your advice that Ms Wills will not be attending the interview with the investigators on 31 July 2020, I make a final offer for Ms Wills to provide a written response to the allegations.

As such should a response not be received from Ms Wills by close of business 3 August 2020, the investigators will be instructed to finalise the investigation based on the information they currently hold.

[28] On 3 August 2020, the Applicant through her solicitors, wrote to the First Respondent disputing the reasonableness of the First Respondent’s position expressed in the 30 July Letter, and proposed the following regime for the Applicant’s participation in the investigation, as follows:

In light of the above, we are instructed to propose the following alternate course to safely and fairly facilitate our client providing a response to the allegations, before the investigation is concluded:

(a) Transport for NSW provide Maurice Blackburn with all documents it has relied on to make the allegations against our client (Documents) together with a mirror image of our client’s laptop (Mirror Image);

(b) the authors will undertake to keep the Documents and Mirror Image confidential;

(c) our client will provide a confidentiality undertaking in respect of the Documents and Mirror Image;

(d) our client will review the Documents and Mirror Image, in her own time and in accordance with her medical advice, at Maurice Blackburn’s Sydney Office under the supervision of one of the authors of this letter;

(e) our client will be afforded two weeks from the date of the provision of the Documents and Mirror Image to provide a written response to the allegations; and

(f) once our client is medically fit to do so, she will attend an interview with the investigators.

(the Proposal)

6. Please provide your response to the Proposal by no later than 5pm on Wednesday, 6 August 2020.

7. Should Transport for NSW fail to agree to the Proposal, we anticipate receiving instructions to amend the bullying application currently before the Fair Work Commission, to include the 30 July Letter as a further instance of bullying conduct.

[29] On 6 August 2020, the Applicant submitted a workers’ compensation claim by providing a WorkCover Certificate of Capacity to her manager by email. Further, on 17 August 2020, the Applicant was notified that provisional liability for her workers’ compensation claim had been approved for the period 3 August 2020 to 26 October 2020. The Applicant was relevantly certified as totally unfit for work between 3 August and 14 September 2020.

[30] On 13 August 2020, the First Respondent, through Mr Staples, wrote to the Applicant (the 13 August Letter) enclosing a copy of the 94 page Investigation Report prepared by EY (the Investigation Report). In that correspondence the First Respondent advised the Applicant as follows:

Proposed disciplinary penalty

The Transport Service of New South Wales required to have trust and confidence in all its employees that they will conduct themselves appropriately, particularly Transport Service Senior Executives, Transport Service Senior Managers and even more so, individuals who are appointed to roles and undertake investigation of fellow employees who may have engaged in corruption or misconduct.

I am of the view that the conduct found to have been substantiated by the investigation means that you have failed to perform and/or discharge your duties and obligations as the person performing the role of Head of Investigations, FCIU to a satisfactory standard or the standard that I require or expect of someone in your position.

In coming to my decision, I have taken the following matters into consideration:

1. your seniority within Sydney Trains and the Transport Cluster, and your position as Head of Investigations for FCIU and the fact that as part of your role, you operate with a high level of autonomy and with unprecedented access to confidential and sensitive information;

2. the work you undertake as Head of Investigation of FCIU and the reasonable expectation that you must at all times act with a high degree of probity and an understanding of the importance of adhering to all applicable policies and procedures, particularly those relating to procurement;

3. the expectations, that I have as the Secretary in relation to the Transport Service Senior

Executives and Senior Managers and also the importance of the Government Sector Core

Values, a requirement imposed on all government sector employees;

4. the seriousness of the findings and breaches of your obligations as an employee; and

5. given your actions, I and other senior executives including the Chief Executive of Sydney Trains, no longer have the necessary level of trust and confidence in your abilities to continue to discharge your obligation in the role of Head of Investigations, FCIU.

I consider your conduct amounts to an act of serious and willful misconduct as per clause 15(d)(i) and a serious and persistent breach of your duties as an employee as per clause 15(d)(v) of your Employment Agreement warranting the summary termination of your employment.

Opportunity to respond and make representations

Given the seriousness of the conduct and the proposed termination of your employment, I am providing you with the opportunity to respond to the preliminary decision and proposed termination of your Employment Agreement without notice before coming to a final decision.

I invite you to make a written submission to me via email by 5.00 PM Monday 17 August 2020 with regard to the proposed disciplinary action and summary termination of your Employment Agreement, and also to provide me with any further information or material you may wish to be taken into account.

[31] The Applicant responded to the 13 August Letter. On 17 August 2020, the Applicant’s Solicitors wrote to Mr Staples of the First Respondent (the 17 August Letter), noted that the appeal proceeding in the matter was scheduled for hearing on 20 August 2020, and seeking that the 13 August Letter be withdrawn.

[32] The Appeal Proceedings proceeded before the Full Bench on 20 August 2020, and final written submissions were filed by the Appellant and Respondent on 20 and 25 August 2020, respectively. The decision of the Full Bench was delivered on 28 August 2020.

[33] Shortly after the delivery of the decision of the Full Bench on 28 August 2020, the Applicant, by way of correspondence from her Solicitors to Mr Staples of the First Respondent, provided a detailed, 20 page response to the proposed sanction outlined in the 13 August Letter and the Investigation Report.

Applicant’s Submissions and Identification of Bullying Acts

[34] The Applicant submitted that the act of suspending the her on 16 March 2020, having regard to the circumstances and ultimate findings that were made against her, was the first act of bullying in that the Applicant was clearly being targeted and treated differently to other employees of Sydney Trains and Transport for NSW (the 1st Bullying Act).

[35] The Applicant did not receive the Allegations, contained in the Letter of Allegations, until ten weeks after being stood down. The Applicant submitted that the act of suspending the Applicant for ten weeks without informing her of the Allegations was not reasonable and constituted the Respondents’ second act of bullying conduct (the 2nd Bullying Act).

[36] The Letter of Allegations required the Applicant to provide a response within seven days of the date of the letter. That requirement was said to be unreasonable and to constitute the third act of bullying (the 3rd Bullying Act).

[37] The 5 June Email from Mr Marley was submitted to constitute the fourth act of bullying in that it was objectively unreasonable to deny the Applicant’s requested period for an extension, deny access to copies of the documents that the First Respondent had relied on to make the Allegations and / or restrict the Applicant from accessing the documents or her laptop in the manner set out in her letter (the 4th Bullying Act).

[38] The 18 June Letter from Mr Marley was submitted to be the fifth bullying act in that it was objectively unreasonable to deny the Applicant access to the requested documents or her laptop, deny the Applicant access to documents that Mr Marley admitted had not been sourced (despite the Applicant’s identification of them) for the purposes of the investigation, and/or only permit the Applicant 7 hours to review documents under his supervision (the 5th Bullying Act).

[39] The 22 June Email was submitted to constitute the sixth act of bullying in that it was objectively unreasonable to demand that the Applicant attend the Premises to review documents under Mr Marley’s supervision in circumstances where the location was highly visible to the Applicant’s colleagues, would erode any confidentiality purportedly attached to the investigation, and would cause the Applicant significant distress (the 6th Bullying Act).

[40] The 23 June Email was submitted to constitute the seventh and eighth acts of bullying, because the refusal to allow the Applicant to inspect the documents at an alternate location was objectively unreasonable (the 7th Bullying Act), and it was alleged that the 23 June Email threatened reprisal action in direct response to the Applicant raising complaints about being denied procedural fairness (the 8th Bullying Act).

[41] The 3 July Letter was submitted to constitute the ninth bullying act by unreasonably refusing to allow the Applicant sufficient time to recover so that she could participate in the investigation (the 9th Bullying Act), and by stating that:

(a) the Applicant would be provided with an opportunity to review the documents on 9 July 2020 at the Premises, under supervision, for a period of 7 hours only;

(b) the Applicant would be provided with 14 days from 9 July 2020 to submit her written response to the Allegations;

(d) if the Applicant did not provide a written response by 23 July 2020, the investigation would continue in the absence of the Applicant’s response and findings would be made based on the information available at the time.

[42] The 7 July Letter was submitted to constitute the tenth, eleventh and twelfth acts of bullying in that:

(a) it was unreasonable to refuse to provide the Applicant with the requested documents (the 10th Bullying Act);

(b) it was unreasonable to require the Applicant to attend the Premises in light of her medical evidence that it was unsafe for her to do so (the 11th Bullying Act); and

(c) it was unreasonable to continue with the investigation in light of the Applicant’s ill-health and in the absence of a response from her given her ill-health (the 12th Bullying Act).

[43] The 10 July Letter was submitted to constitute thirteenth, fourteenth, fifteenth and sixteenth acts of bullying in that:

(a) it was unreasonable to refuse to provide the Applicant with the requested documents (the 13th Bullying Act);

(b) it was unreasonable to require the Applicant to attend the Premises to review documents supervised by Mr Marley in light of the medical evidence that it was unsafe for her to do so (the 14th Bullying Act);

(c) it was unreasonable for the Respondent to dispute the Applicant’s medical evidence in circumstances where he had no reasonable basis to do so (the 15th Bullying Act); and

(d) it was unreasonable to continue with the investigation in light of the Applicant’s ill-health and in the absence of a response from her given her ill-health (the 16th Bullying Act).

[44] The 24 July Letter was submitted to constitute a further act of bullying in that it was unreasonable to require a response from the Applicant given her ill-health (the 17th Bullying Act).

[45] The 30 July Letter was submitted to constitute a further act of bullying in that it was unreasonable to continue the investigation in the absence of interviewing the Applicant and require a response from her in light of her ill-health (the18th Bullying Act).

[46] The First Respondent’s failure to respond to the letter from the Applicant’s Solicitors of 3 August 2020, was submitted to constitute a further act of bullying (the 19th Bullying Act).

[47] The Investigation Report and the 13 August Letter were submitted to constitute thirteen acts of bullying. They were that the Investigation Report and the 13 August Letter:

(a) rendered Mr Zeng’s conduct unreasonable in that representations made to the Commission on behalf of the Respondents were not abided by (the 20th Bullying Act);

(b) rendered Mr Zeng’s conduct in being involved in matters concerning the progress of the investigation unreasonable in that he should not have been involved as he was a witness that was relied on during the investigation and in the Investigation Report (the 21st Bullying Act);

(c) rendered Mr Zeng’s conduct particularly unreasonable in that he and Mr Marley ignored and failed to independently examine the Applicant’s bullying complaints in circumstances where Mr Zeng was a witness that was relied on during the investigation and in the Investigation Report (the 22nd Bullying Act);

(d) the Investigation Report was unreasonable in that it did not provide the Applicant with an opportunity to respond to any proposed findings prior to those findings being made (the 23rd Bullying Act);

(e) the Investigation Report was unreasonable in that it had been concluded despite the Applicant’s inability to participate in the process due to her ill-health (the 24th Bullying Act);

(f) the Investigation Report was unreasonable in that it made findings that were not properly supported by the evidence relied on by the investigator (the 25th Bullying Act);

(g) the Investigation Report was unreasonable in that it made inconsistent findings (for example in respect of Allegation 1 and Allegation 2) (the 26th Bullying Act);

(h) the Investigation Report was unreasonable in that it made findings without asking relevant questions of available witnesses (the 27th Bullying Act);

(i) the Investigation Report was unreasonable in that it made findings that were inconsistent with the evidence before it (the 28th Bullying Act);

(j) the Investigation Report was unreasonable in that it failed to have regard to relevant documents prior to making findings against the Applicant (for example Allegation 4 and Allegation 5 in which it is admitted that specific and relevant documents were not sourced) (the 29th Bullying Act);

(k) the 13 August Letter was unreasonable in that it required the Applicant to respond to proposed disciplinary action despite her ill-health (the 30th Bullying Act);

(l) the 13 August Letter was unreasonable in that it required a response within 2 business days despite the extraordinary length of the report (the 31st Bullying Act); and

(m) the 13 August Letter was unreasonable in that it threatened the Applicant with summary dismissal (which was likely to take effect if she did not respond) prior to the hearing of the Appeal which would have rendered the proceedings nugatory (the 32nd Bullying Act).

[48] The failure by the Respondent to respond to the 17 August Letter was submitted to constitute the last act of bullying (the 33rd Bullying Act).

Orders Sought by the Applicant

[49] In the Applicant’s Submission, the following revised orders were sought:

(a) an order that Mr Grant Marley and Mr James Zeng have no further involvement in respect of the investigation into allegations against the Applicant;

(b) an order that the Investigation Report issued on 17 August 2020 be withdrawn and not relied upon;

(c) an order requiring Transport for NSW to withdraw and refrain from taking the proposed disciplinary action set out in its letter dated 17 August 2020;

(d) an order restraining Mr Rodd Staples, Transport for New South Wales and/or Sydney Trains from terminating the Applicant’s employment on the basis of the findings contained in the Investigation Report issued on 17 August 2020;

(e) an order requiring Transport for NSW to provide the Applicant with copies of all documents relied on to make the allegations against her (as set out in the letter to the Applicant dated 1 June 2020) (Allegations);

(f) an order permitting the Applicant access to her laptop (under supervision of her solicitors) for the purpose of responding to the Allegations;

(g) an order that the Applicant be afforded two weeks from the date of the provision of documents and access to her laptop to provide a comprehensive response to the Allegations; and

(h) an order that the investigation be otherwise conducted fairly and objectively.

Respondents’ Submission

[50] The Respondents submitted that a number of the requirements relating to conduct which constitutes bullying for the purposes of s.789FD of the Act are not met, and that there are foundational difficulties in terms of the relief sought by the applicant.

[51] Bullying acts 1 to 19 were submitted to be misconceived, and to not provide the basis for any relevant bullying or conduct which enlivens the exercise of the discretion of the Commission to make orders under s.789FF of the Act. The investigation is completed and, inasmuch as the allegations rely on complaints relating to the investigation and persons involved in the investigation, there was no question of such alleged bullying continuing, and no question of some ongoing risk to health and safety.

[52] The alleged bullying acts 20 to 29 related to the investigation and the Investigation Report. It was submitted to be inappropriate to use the Commission’s jurisdiction under Part 6 – 4B of the Act to stymie and impugn the Investigation Report and process. The Respondent submitted that the Commission only needs to consider if the conduct of the investigation and issuing of the report lacked any evident and intelligible justification, and whether the process was carried out in a reasonable manner.

[53] The Respondents submitted that each alleged act of bullying, viewed in isolation, could not constitute bullying within the meaning of s.789FD, and that there was no repetition in respect of each alleged act of bullying. The position was fatal inasmuch as one off allegations were made against Mr Staples (the 33rd Bullying Act) and Mr Zeng (with each of the alleged 20th to 22nd Bullying Acts against him being of a different nature).

[54] Finally, in respect of many of the alleged bullying acts, it was submitted that there was an absence of any factual foundation to support such allegations. On the Respondent’s case, such alleged bullying acts could not meet the definition of bullying within the meaning of s.789FD (whether taken in isolation or together), and instead, the Applicant had made bare assertions as to certain acts being unreasonable with reference to her complaints and expectations.

[55] The Respondents submitted that, having regard to the circumstances and facts, to the extent that certain action was undertaken, it was reasonable management action carried out in a reasonable manner in accordance with s.789FD(2) of the Act.

[56] In response to itemised alleged Bullying Acts, the Respondents submitted:

(a) 1st Bullying Act - The Applicant was not subjected to differential treatment. The Applicant, along with two other employees who worked with, and reported to, the Applicant within the FCIU, were directed not to attend the office or perform any work until further notice. That was due to a report that the Applicant and the other employees had engaged in misconduct that may constitute corrupt conduct within the meaning of the ICAC Act. Given the serious allegations raised against the Applicant (and other employees) and the senior role and responsibilities of the Applicant, it was not only reasonably open, but necessary, for the First Respondent to stand down the Applicant and the other employees. That decision was made by Mr Staples and implemented by Mr Zeng and David Hyland, Acting Executive Director, People and Change, who met with the Applicant.

(b) 2nd Bullying Act - Given the seriousness of the allegations, the number of employees involved against whom allegations had been made, and the need for the First Respondent to properly discharge its obligation under ss.53 and 54 of the ICAC Act relating to undertaking an investigation and submitting a report, it was appropriate and reasonable that it took time to carefully review the materials and formulate any allegations. During the period of the suspension, Mr Marley communicated with the Applicant and other employees.

(c) 3rd Bullying Act - The requirement for the Applicant to respond within seven days was consistent with the standard practice and approach of the Respondent. A similar timeframe was imposed on the other two employees. Nonetheless, the period within which the Applicant was required to respond was subsequently extended on a number of occasions until 3 August 2020.

(d) 4th to 7th, and 9th to 19th Bullying Acts - Between 5 June 2020 and 10 July 2020, the Applicant’s Solicitors and the First Respondent exchanged correspondence as to access to, and arrangements for reviewing, documents. The Applicant requested time extensions, and copies of a broad range of documents, and also unrestricted access to her laptop. The First Respondent refused unsupervised access to documents and laptop by the Applicant. The Respondents submitted that there were sound reasons for their refusal, but noted that they proposed a supervised access scheme the alleviate concerns expressed by the Applicant.

A number of extensions were provided to the Applicant to respond to the written allegations between 5 and 23 June 2020. Following 24 June 2020, the Applicant provided medical certificates and information indicating she was unfit for work. The Applicant was offered the opportunity to attend an interview with the investigator, which she declined. Given the seriousness of the allegations and the other employees being involved in the investigation, and also complaints about delay from the date of suspension until allegations were issued, the First Respondent was not prepared to grant any further extensions to the Applicant

(e) 8th Bullying Act - The reference in the 23 June Email to “there may be further allegations that may be raised” was no more than a statement made in the context of an investigation which properly conducted involved some level of iteration and, at that point, was ongoing.

(f) 20th to 32nd Bullying Acts – The Respondents submitted that an employer is not required to conduct the investigation to the standard of a ‘judicial hearing or police style examination of the circumstances’ but to conduct the investigation in a ‘practical manner’, with sufficient thoroughness and consistent with the requirements of procedural fairness. 3 There was sufficient justification for undertaking the investigation and the implementation of the process was reasonable in the circumstances and carried out in a reasonable manner.

(g) 33rd Bullying Act – This was an alleged failure to respond to the letter from the Applicant’s Solicitors to the Mr Staples. At that point in time, Mr Staples had undertaken to the Commission not to proceed to a final decision and was not in a position to respond, given the letter from the Applicant’s Solicitors formed part of her written response.

[57] As to the involvement of Mr Marley, the Respondents noted that Mr Marley holds the position of Associate Director, Workplace Conduct and Investigation Unit for Transport for NSW. Given the nature of the allegations being against the Applicant as the Head of Investigations, Fraud and Corruption Unit, Sydney Trains, and the agency arrangements in place as between Sydney Trains and Transport for NSW as it relates to workplace investigations, Mr Marley is the most appropriate person to co-ordinate the carrying out of the investigation which was undertaken by EY. The First Respondent also noted that Mr Marley has outlined to the Applicant’s Solicitors the role he played in the investigation, and that other than making decisions around access to documents, he is not otherwise involved in decision-making as it relates to disciplinary action.

[58] Regarding Mr Zeng, the Respondents note that his position is Senior Legal Counsel, Employment & Regulatory, Transport for NSW. The Respondents deny Mr Zeng made representations as alleged by the Applicant in proceedings before the Commission on 24 July or 7 August 2020. Regarding the allegation of Mr Zeng being a witness in the investigation, it is clear from EY’s record of interview with Mr Zeng that he was providing background information and context in the investigation. Mr Zeng was ruled out as a witness in the investigation by EY and the information he provided (being the unsigned record of interview) was not annexed to the Investigation Report.

[59] The position of Mr Staples is Secretary of the Department of Transport. The Respondents submit that the Applicant has not demonstrated that Mr Staples formed part of the group of individuals who are alleged to have subjected the Applicant to repeated unreasonable behaviour. There is a single incident alleged against Mr Staples, being a failure to respond to the 17 August Letter from the Applicant’s Solicitors to Mr Staples. At that point in time, Mr Staples had undertaken to the Commission not to proceed to a final decision and was not in a position to respond, given the letter from the Applicant’s Solicitors which formed part of her written response.

[60] The Respondents submitted that even if the Commission were to form a view that any of the alleged bullying acts, whether taken separately or together, constituted bullying, the action of the Respondents was 'reasonable management action carried out in a reasonable manner’ in accordance with s.789FD(2) of the Act.
[61] Regarding the relief sought by the Applicant, the Respondents noted that it is apparent that the Application and relevant relief which is sought is concerned with, firstly, the investigation process and, secondly, the disciplinary process which has been commenced against the Applicant. The Respondents have submitted that the Application is an attempt to delay, frustrate or deflect disciplinary outcomes which are available to the First Respondent in respect of the Applicant’s employment.

[62] The Respondents submitted that the Applicant should not be permitted to use the Application as a vehicle to obstruct and delay the disciplinary process. Despite the wide discretion in relation to types of orders the Commission can make under s.789FF(1), there is no basis for any of the orders sought by the Applicant to be made pursuant to s.789FF of the Act.

Applicant’s Reply Submission

[63] The Applicant submitted that the Respondents’ defence to the Application is based on misconceived grounds to contend that the requirements of s.789FD of the Act have not been met. Those misconceptions are:

(a) That because the investigation into allegations against the Applicant has been concluded there is no further risk of bullying. The Applicant submits that the Respondents continue to unreasonably rely on the findings arising from that flawed investigation in order to carry out disciplinary action against the Applicant. In this regard, a risk of bullying remains and the bullying conduct is likely to continue unless the Applicant obtains the relief she seeks;

(b) The Commission does not need to form a view about the allegations the subject of the investigations and findings made against the Applicant in order to determine whether the act of putting allegations to the Applicant and making findings against her constitute acts of bullying as contended by the Applicant. The Applicant submits that Mr Marley’s conduct of putting certain allegations to her, in and of itself, constituted bullying in that there was no reasonable basis to make the allegations. That is particularly so in circumstances where a number of the allegations were found to be unsubstantiated even without any response having been provided by the Applicant;

(c) There is no repetition in respect of each alleged act of bullying because Mr Staples engaged in only one act of bullying and Mr Zeng’s bullying acts are of a different nature and are therefore not repetitive. The Applicant submits that it is not necessary that the repeated behaviour be of the same nature. Rather, the statutory provision requires repeated unreasonable behaviour by the individual or a group of individuals, and that requirement is clearly met in this case.

(d) There is an absence of factual foundation to support many of the allegations of bullying acts. The Applicant made further detailed submissions regarding the bullying acts alleged; and

(e) The Respondents carried out ‘reasonable management action’ in a ‘reasonable manner’ in accordance with s.789FD(2) of the Act. The Applicant vigorously opposed that contention.

[64] Regarding the relief sought, the orders sought by the Applicant are submitted to be directly aimed at stopping bullying behaviour. The Applicant seeks orders to, in effect, allow her to respond to the allegations that have been made against her in a reasonable and procedurally fair manner without risk to her health.

Consideration

[65] The circumstances in which the Commission’s power to make anti-bullying orders is enlivened is set out in s.789FF of the 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.

[66] As Vice President Hatcher identified in Mac v Bank of Queensland Ltd 4 (Mac), 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 the applicant 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 the applicant worker will continue to be bullied at work by the individual or group of individuals.

[67] The first prerequisite is satisfied by the Application made by the Applicant. The Applicant reasonably believes that she has been bullied at work and has sought orders under s.789FF of the Act.

[68] The second prerequisite requires satisfaction that the Applicant has been bullied at work by an individual or a group of individuals. Section 789FD sets out the test for establishing whether a person has been ‘bullied at work’. It provides at sub-sections (1) and (2) as follows:

(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.

[69] In Blogojevic v AGL Macquarie Pty Ltd 5, the Full Bench of the Commission found as follows regarding s.789FD:

[15] The test is objective. What is reasonable is a question of fact. Behaviour is unreasonable if a reasonable person, having regard to all the circumstances, may consider it to be unreasonable.

[16] The expression ‘repeatedly behaved unreasonably’ in s.789FD(1)(a) of the Act falls within a definition provision and is to be interpreted and applied with reference to the policy or purpose of Part 6–4B of the Act, which is to establish a mechanism by which the bullying of workers at work may be stopped.

[17] A one-off incident will not be a sufficient basis for the making of an application to the Commission. Provided there is more than one occurrence, there is no specific number of incidents required to meet the condition of “repeated” behaviour, nor does the same specific behaviour have to be repeated. The statutory provision requires repeated unreasonable behaviour by the individual or a group of individuals towards the applicant worker or a group of workers to which the applicant belongs.

[18] Section 789FD(2) qualifies the definition of when a worker is bullied at work such that it does not apply to ‘reasonable management action carried out in a reasonable manner’. There are three elements to this qualification:

• the behaviour must be management action;

• the taking of such management action must be reasonable; and

• the management action must be carried out in a manner that is reasonable.

[19] The expression ‘management action’ in s.789FD(2) is not confined only to managerial decisions but encompasses a wider range of conduct or behaviour which affects an employee, including such things as performance and disciplinary matters, the allocation of work and the way in which work is to be carried out. Placing an employee on a PIP clearly falls within the scope of the expression ‘management action’.

[20] To determine whether the action constitutes “reasonable management action” it is necessary to undertake “an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time”. The test for reasonable management action is whether the “management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’.”

[21] The specific question of whether placing a worker on a PIP constituted “reasonable management action” for the purposes of s.789FD(2) of the Act, was considered by Vice President Hatcher in Mac v Bank of Queensland Limited. In that case, the applicant, Ms Mac, argued that the managerial decision to impose, and continue to impose, a PIP on her, was not reasonable management action because the shortcomings in her performance had not been sufficiently serious to justify that decision being made. In assessing the reasonableness of this managerial decision, the Vice President did not attempt to form his own judgment as to whether Ms Mac’s overall performance was satisfactory, explaining:

‘… I do not consider that an assessment of whether the imposition of the PIP on Ms Mac was unreasonable requires the Commission to engage in the process of attempting to form its own judgment as to whether her overall performance was satisfactory or not and to substitute its judgment for that of the relevant BOQ managers and supervisors. Even if a different and better opinion of Ms Mac’s work performance could legitimately be formed on the evidence before me, that would not be sufficient to show that the decision to introduce the PIP was unreasonable. What is necessary is for Ms Mac to demonstrate that the decision to introduce the PIP lacked any evident and intelligible justification such that it would be considered by a reasonable person to be unreasonable in all the circumstances.’ (emphasis added)

[22] In the Decision subject to appeal the Commissioner agreed with the approach taken by the Vice President and applied it to the matter before him, noting:

‘It follows that I do not need to form my own judgment as to whether Mr Blagojevic’s overall performance was satisfactory or not. The primary issues for determination are whether the decision to introduce the PIP or revise it lacked any evident and intelligible justification, and whether the introduction and implementation of the initial and revised PIP was carried out in a reasonable manner.’

[23] It is convenient to note here that Mr Blagojevic did not challenge this aspect of the Commissioner’s decision; nor did he contend that Mac v BOQ was wrongly decided. For our part, we agree with the observations of Vice President Hatcher set out at [21] above.

(Footnotes omitted)

[70] It is notable in the Applicant’s case that the unreasonable behaviours alleged against the Respondents are not of the kind identified by Vice President Hatcher in Mac as belonging to a list of the features at least some of which one might expect to find in a course of repeated unreasonable behaviour that constituted bullying at work. Vice President Hatcher observed 6:

My list included the following: intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination.

[71] While in Mac it was also observed that it was not unknown for performance management techniques to be used as a means to achieve and justify a predetermined outcome of termination of employment, and so be able to be characterised as a series of repeated instances of unreasonable behaviour such as to fall within the first limb of the definition of bullying at work, the Applicant’s case did not involve performance management techniques. Rather the conduct impugned by the Applicant occurred in the course of investigations of her alleged misconduct.

[72] It was further not suggested by the Applicant that the Respondents were acting with malice or sinister intent, or had conspired in some way to cause detriment to her. It was simply put that certain actions in the investigation process were not reasonable and so constituted bullying conduct. I will now deal with the alleged bullying acts outlined in the Applicants submission. Set out below is each alleged bullying act (in italics) and my specific conclusion in relation to it.

1st Bullying Act - Suspending the Applicant on 16 March 2020

[73] The Applicant was not targeted and treated differently to other employees of the First Respondent. There are a total of four employees in the FCIU, and three (including the Applicant) were the subject of the specific investigation being conducted. All three were stood down.

[74] Insofar as the Applicant’s comparison focussed past the FCIU, that general consideration must yield to the more specific considerations of the Applicant’s circumstance. The Applicant leads the FCIU, and has significant responsibilities including being the nominated person to make determinations about public interest disclosures under the Public Interest Disclosures Act. In her role the Applicant also has access to confidential information. While the Applicant asserted that the First Respondent would only suspend an employee if there was a reputational or financial threat to the organisation, in the Applicant’s circumstances and in light of the allegations made, such threat was real. I consider that it was not unreasonable to suspend the Applicant.

2nd Bullying Act - Suspending the Applicant for ten weeks without informing her of the Allegations

[75] The applicant was issued with the Letter of Allegations on 1 June 2020. I do not consider, as the Applicant submits, that on any objective assessment, the act of suspending the Applicant for 10 weeks without informing her of the Allegations was not reasonable.

[76] Given the seriousness of the allegations, and that three of the four employees of the FCIU were possibly involved, I do not consider that it was unreasonable to take ten weeks to formulate the Allegations. Indeed, even though Mr Marley had formed a preliminary view as to the Applicant’s conduct as early as April 2019, the process of the preliminary investigation and formulation of the Allegations was not a small task, nor solely a task of the Respondents. There was involvement of ICAC, to whom the First Respondent provided a report back to properly discharge its obligation under ss.53 and 54 of the ICAC Act, and from January 2020 the involvement of EY as independent investigators. The breadth of the Allegations was wide, and it was necessary for investigators to access and interrogate a large volume of data and records.

[77] During the ten week period it was not the case that the Applicant was somehow neglected. Mr Marley communicated with the Applicant and the other two employees of the FCIU in accordance with the protocols in place under the relevant Enterprise Agreement, notwithstanding that such Enterprise Agreement did not apply to the Applicant’s employment.

3rd Bullying Act - Requiring a response to the Letter of Allegations within seven days

[78] I accept that the requirement to respond to the Allegations within seven days was consistent with the standard practice and approach of the First Respondent.

[79] The Applicant contrasts the time the First Respondent took to formulate the Allegations, to the time initially given to the Applicant to respond, and asserts objectively that the response time was not reasonable. That submission, however, disregards the refinement of the Allegations as expressed in the Letter of Allegations. The Applicant upon reading the Letter of Allegations understood the issues raised against her 7. I consider it would certainly have been possible for her to respond to the Allegations as expressed within the timeframe.

[80] However, the focus on the seven day period is misleading because, during that seven day period, the time for response was extended, and thereafter it was extended on a further three occasions. In the 5 June Email, the period within which the Applicant was required to respond was extended to 22 June, 2020. In the 22 June Email, the period within which the Applicant was required to respond was extended to 9 July, 2020. In the 3 July Letter, the period within which the Applicant was required to respond was extended to 23 July, 2020. Finally, in the 30 July Letter, the period within which the Applicant was required to respond was extended to 3 August, 2020. If, contrary to my conclusion above, the original time for response was unreasonable, such unreasonableness was surely cured by the time extensions granted to the Applicant.

4th Bullying Act – Unreasonable Refusal of Access in 5 June Email

5th Bullying Act - Unreasonable Refusal of Access in 18 June Letter

6th Bullying Act - Unreasonable to demand that the Applicant attend the Premises

7th Bullying Act - Refusal in 23 June Email to allow the Applicant to inspect the documents at an alternate location

9th Bullying Act - Unreasonably refusing to allow the Applicant sufficient time to recover so that she could participate in the investigation

10th Bullying Act - Unreasonable refusal in 7 July Letter to provide the Applicant with the requested documents

11th Bullying Act - Unreasonable requirement in 7 July Letter to attend the Premises

12th Bullying Act - Unreasonable position in 7 July Letter to continue with the investigation in light of the Applicant’s ill- health

13th Bullying Act - Unreasonable refusal in 10 July Letter to provide the Applicant with the requested documents

14th Bullying Act - Unreasonable requirement in 10 July Letter to attend the Premises

15th Bullying Act - Respondent unreasonable in 10 July Letter to dispute the Applicant’s medical evidence

16th Bullying Act - Unreasonable position in 10 July Letter to continue with the investigation in light of the Applicant’s ill- health

17th Bullying Act - Unreasonable requirement in 24 July Letter for a response from the Applicant given her ill-health

18^th Bullying Act - Unreasonable to continue the investigation in the absence of interviewing the Applicant and requiring a response from her in light of her ill-health

[81] Between 5 June 2020 and 30 July 2020, the Applicant’s Solicitors and the First Respondent exchanged correspondence regarding:

(a) Requests for extensions of time to respond;

(b) Access to requested documents;

(d) The time within which access to the requested documents and laptop would be available;

(e) The location of access; and

(f) The appropriateness of the investigation continuing in light of the Applicant’s unfitness for work.

Overall, I see no unreasonableness in the conduct of the Respondent in the period from 5 June 2020 to 30 July 2020, either as alleged or at all. The First Respondent in particular made numerous considered variations to its position at the request of the Applicant. It was not, however, prepared to have the Applicant dictate the terms upon which the investigation was to be conducted, with such opposition based upon sound grounds.

[82] Regarding the particular issues raised, I find as follows:

(a) Requests for extensions of time to respond – This allegation is addressed in the findings regarding the 3rd Bullying Act. In the 5 June Email the time for response was extended, and thereafter it was extended on a further three occasions.

(b) Access to requested documents – The First Respondent’s position regarding access to documents was soundly based upon issues of confidentiality, particularly where one of the allegations against the Applicant involved a breach of confidentiality.

Nonetheless, the First Respondent was flexible and, in response to representations from the Applicant’s Solicitors, proposed a supervised access scheme which would allow the Applicant to attend the First Respondent’s premises in Lee Street, Chippendale, rather than her usual place of work at 477 Pitt St, and access the documents under the supervision of the Second Respondent.

(c) Access to the Applicant’s laptop – The First Respondent’s concerns regarding the requested unlimited access to the Applicant’s laptop were similarly well founded. However, again the First Respondent was flexible and, in response to representations from the Applicant’s Solicitors, proposed a supervised access scheme which would allow the Applicant to attend the First Respondent’s premises in Lee Street, Chippendale, and view the laptop.

In relation to the access to the laptop it was particularly relevant that such access occur at the Lee St premises because it allowed access to information technology assistance necessary to access certain legacy servers and IT databases to which the Applicant would need access for the documents she had sought.

(d) The time within which access to the requested documents and laptop would be available – I accept that the limitation of seven hours initially suggested would, on request, have been able to be extended, and that Mr Marley had the discretion to extend it. I certainly doubt that the Applicant actually saw the seven hour period as the limiting factor she sought to advance in her evidence. 8 In circumstances where the First Respondent was accommodating of so many changes to the proposed inspection regime, I consider it fanciful that the Applicant did not contemplate that accommodation would also be available regarding inspection time.

(e) The location of access - The premises at Lee Street, Chippendale, were not the Applicant’s usual place of work, though I accept that she would visit those premises ordinarily during her work. The Applicant’s objection to the use of those premises must be considered in light of the fact that during the period when the proposed access regime was being contemplated, there were very few employees in attendance at the Lee St premises as most employees had been directed to work from home.

While the Applicant presented a report from her Psychologist Mr Zandberg dated 25 June 2020, that stated in part “Ms Wills is currently very unwell and this request to attend the office connected to where she and her team were marched from the premise is unreasonable and frankly, dangerous”, the First Respondent, reasonably is my view, considered that statement to be based on misinformation because the Lee St premises were not the Applicant’s usual place of work. The First Respondent made their position abundantly clear to the Applicant’s Solicitor in the 10 July Letter, wherein it stated “Notwithstanding the psychologist’s statement, Transport for NSW is prepared to consider any reasonable accommodation Ms Wills may require to allow her to inspect the documents”.

Against the Applicant’s reluctance to attend the Lee St premises is the counterbalancing factor, referred to above, that access occur at the Lee St premises because it allowed access to information technology assistance necessary to access certain legacy servers and IT databases to which the Applicant would need access for the documents she had sought. There was no unreasonableness in the Respondents’ position or conduct.

(f) The appropriateness of the investigation continuing in light of the Applicant’s unfitness for work - Following 24 June 2020, the Applicant provided medical certificates and psychologists reports indicating she was unfit for work. Otherwise, it seems clear that the Applicant was fit for work from 1 to 24 June 2020.

In the period from 24 June to 30 July 2020, there were numerous attempts by the First Respondent to accommodate the Applicant’s medical condition, including granting extensions to respond (the 3 July Letter), inviting suggestions for accommodations in light of the medical evidence (the 10 July Letter), and even the Applicant attending an interview with EY (24 July Letter). Given the seriousness of the Allegations, the involvement of other employees, and the Applicant’s complaints regarding the delay from the date of suspension until allegations were issued, the First Respondent was not prepared to delay the investigation.

The Applicant’s position is that there are further acts of bullying (16th, 17th and 18th) in that it was unreasonable to continue the investigation in the absence of interviewing the Applicant (which she wished to participate in) and require a response from her in light of her ill-health.

I see no unreasonableness in the Respondent continuing the investigation, particularly in the absence of any prognosis from the Applicant as to when she may in fact be able to participate in the investigation or be interviewed 9. The First Respondent cannot be expected to stand by for an indeterminate period of time awaiting the Applicant’s health to improve. It can reasonably proceed on the best available evidence available to it.

8th Bullying Act – Threat of reprisal in 23 June Email

[83] The full paragraph from the 23 June Email, with the first two lines in bold being the issue identified by the Applicant’s Solicitors, and the following text being the Second Respondent’s response on behalf of the First Respondent, was as follows:

In the Letter, you refer to sample documents that our client will have the opportunity to review. Please confirm that these documents will be made available to our client on Thursday.

The allegations regarding procurement practices are based on a sample of cases identified to date. As EY is continuing its inquiries, the sample documents is as described a sample of matters where irregularities have been discovered to date and will be relied upon for the purposes of the investigation. It needs to be noted that the sample of documents provided may not be the totality of matters that will be relied upon as indicative of misconduct and there may be further allegations that may be raised. The investigators have determined however that each of the sample cases is indicative of the alleged misconduct. In addition to the documents provided, the attached extract from a preliminary report which identifies the sample cases and summarises the issues identified in relation to each, is provided to assist Ms Wills consider the allegations and enable her to focus her review of case records and documentation.

(Emphasis added)

[84] The Applicant’s evidence regarding this alleged act of bullying was as follows 10:

All right. Now, so this a 23 June, this is still pretty early in the piece given that you got the letter of allegations on 1 June. So you accept too, the investigation's continuing at that point?---On 23 June?.

There was very much emotion?---Yes.

And as far as you understood, there were investigations relating to your two other subordinate employees as well?---They were stood down, my issue is that I don't know.

Do you know the nature of the allegations against them?---No idea.

All right. But it's not uncommon, is it, that as the investigation is occurring, other issues may arise and need to be pursued or put to you?---That's correct.

And indeed, in the investigations you've overseen, you would not close off if there were other new issues that arose and which you might need to pursue?---That's correct.

[85] The 23 June Email makes it abundantly clear that in moving past sample documents in what are continuing enquiries, further allegations may arise. There is no basis to characterise the statement as a threat of reprisal. It was, as the Applicant accepted, a reasonable statement of fact.

19th Bullying Act - Failure to respond to the 3 August Letter

[86] It is apparent on the face of the 3 August Letter that it contains a proposal for resolution of the access dispute between the parties. It is effectively an offer of settlement. In Mac, Vice President Hatcher found: 11

“The proposition that dealings between an instructing officer of an employer party to an anti-bullying application and the party’s lawyer concerning an offer of settlement made by another party could itself constitute an act of bullying at work for the purposes of the application is self-evidently absurd.”

[87] I concur with that observation that I find equally apposite to the allegation regarding the 8th Act of bullying. The 3 August Letter was a proposal predicated on the Applicant’s medical fitness, that clearly stated what would occur if the First Respondent failed to agree to the proposal. It did not require a response. The First Respondent’s conduct in not responding was not unreasonable.

33rd Bullying Act - The failure by the Respondent to respond to the 17 August Letter

[88] The observation in relation to the 19th Bullying Act is equally applicable here. The submission that failure to respond to correspondence urging that the First Respondent not proceed with a sanction, where Mr Staples had undertaken to the Commission to not proceed to a final decision, constitutes bullying is absurd.

20th Bullying Act - Mr Zeng’s conduct unreasonable

[89] There is no cogent evidence of whatever “representations” were made to the Full Bench, nor an explanation of why this ground was not raised until 4 September 2020. Even if it is accepted that a two step process was foreshadowed, the 13 August Letter makes it clear that such a process was being followed. There is no basis to this allegation.

21st Bullying Act - Mr Zeng’s conduct in being involved in matters concerning the progress of the investigation unreasonable

[90] Mr Zeng was not involved in the investigation by EY. He provided background information about his interactions with ICAC, as recorded in his record of interview. Such minor involvement is clearly reasonable for the First Respondent’s legal officer.

22nd Bullying Act – Failure by Mr Zeng and Mr Marley to independently examine the Applicant’s bullying complaints

[91] It is clear that no actual bullying complaint under the applicable procedure was made, and that the only allegations are those raised in these proceedings. It seems extraordinary that the Applicant suggests that parallel to these proceedings the First Respondent should examine the exact same allegations. While the first rhetorical question may be “why?”, the second must surely be “how?”. Just exactly how any such complaint could be investigated in light of the Applicant’s medical condition remains unexplained. Nonetheless, it was entirely reasonable for the First Respondent to rely on these proceedings to address whatever allegations were made.

23rd Bullying Act - Not providing the Applicant with an opportunity to respond to any proposed findings prior to those findings being made

24th Bullying Act - Concluding the Investigation Report despite the Applicant’s inability to participate

25th Bullying Act - The Investigation Report making findings that were not properly supported by the evidence

26th Bullying Act - The Investigation Report making inconsistent findings

27th Bullying Act - The Investigation Report making findings without asking relevant questions of available witnesses

28th Bullying Act - The Investigation Report making findings that were inconsistent with the evidence before it

29th Bullying Act - The Investigation Report failing to have regard to relevant documents prior to making findings against the Applicant

[92] The Investigation Report was authored by Mr Nick Maginot of EY, not by any of the Respondents. The only possible involvement of any of the Respondents in the seven bullying allegations regarding the Investigation Report was not providing the Applicant with an opportunity to respond to any proposed findings prior to those findings being made. That allegation is baseless because such opportunity to be interviewed by EY was conveyed in the 24 July Letter.

[93] As to the content of the Investigation Report, it cannot be said that the Investigation Report lacks any evident and intelligible justification. It was not unreasonable for the Respondent to rely on that report and seek a response from the Applicant. It is not the role of the Commission to be satisfied as to whether the findings in the investigation were correct and/or open.

30th Bullying Act – The 13 August Letter requiring the Applicant to respond to proposed disciplinary action despite her ill-health

31st Bullying Act – The 13 August Letter requiring a response within 2 business days

32nd Bullying Act – The 13 August Letter requiring threatening the Applicant with summary dismissal prior to the hearing of the Appeal

[94] It was not unreasonable for the First Respondent to seek a response from the Applicant, and I adopt my reasoning expressed above in relation to the appropriateness of the investigation continuing in light of the Applicant’s unfitness for work, and the 16th, 17th and 18th Bullying Acts.

[95] While the request for a response in two days was a short period, I adopt my reasoning above in relation to the Third Bullying Act, and the limitation of seven hours initially suggested regarding the documents and laptop. The consistent conduct of the First Respondent was that, on request, extensions would be granted. Responses were provided by the Applicant on 17 and 28 August 2020, and the First Respondent has not acted on the proposed sanction of dismissal. While a period greater than two days may have been more reasonable or more acceptable, I do not consider the two day period identified to be lacking any evident and intelligible justification. The First Respondent was seeking to advance the investigation process.

Conclusion

[96] I am not satisfied that the Applicant was bullied at work by any of the Respondents, either individually or collectively. None of the conduct of those Respondents alleged to be unreasonable in the Applicant’s Submissions was in fact unreasonable. Although it is therefore not strictly necessary for me to do so, I also find that the Respondents conduct constituted reasonable management action carried out in a reasonable manner.

[97] In reaching that conclusion, it has not been necessary for me to determine whether the alleged instances of bulling behaviour created a risk to health and safety, although the stresses associated with the investigation process did create such a risk as has manifested in the illness suffered by the Applicant.

[98] Because I am not satisfied that the Applicant was bullied at work as alleged, there is no power to make the orders sought, and the Application is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2020] FWCFB 4514.

2 [2020] FWCFB 4514, at [48].

3 See Gera v Commonwealth Bank of Australia [2010] FMCA 205, [30]

4 (2015) 247 IR 274 at [75].

5 (2018) 279 IR 380 at

6 (2015) 247 IR 274 at [99].

7 Transcript PN248

8 See Transcript PN 349, 353, 367 and 368.

9 Transcript PN 523 to 526.

10 Transcript PN 622 to 627

11 [2015] FWC 774 at [144(3)].

Ms Virginia Wills v The Government of New South Wales, Sydney Trains

[2020] FWC 5890

4 NOVEMBER 2020

DECISION