Ms W (a pseudonym)
[2022] FWC 1627
•28 JUNE 2022
| [2022] FWC 1627 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Ms W (a pseudonym)
(AB2021/438)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 28 JUNE 2022 |
Application for an FWC order to stop bullying – Applicant failed to meet deadlines on tasks on multiple occasions – concerns raised with Applicant about performance – Applicant rejects any performance concerns exist – Applicant placed upon informal performance management – Applicant filed anti-bullying application – performance concerns not unreasonable – informal performance management process not lacking any evident or intelligible justification – claims of bullying rejected – unnecessary to consider employer’s “reasonable management action” defence - application dismissed
Introduction
The Applicant (Ms W, a pseudonym) has filed a Form F72 anti-bullying application (Anti-Bullying Application) with the Fair Work Commission (Commission) seeking relief (in the form of stop-bullying orders) under Part 6-4B of the Fair Work Act 2009 (Act).
On 14 December 2021, I made an order pursuant to s.594 of the Act for the names of the parties to the proceedings, along with the names of any witnesses in the proceedings, to be anonymised in any decision or other order published by the Commission.[1] The submissions and evidence of the parties referred to or otherwise extracted in this decision have been amended accordingly to reflect such anonymisation.
The sole Respondent to the Anti-Bullying Application is an individual, the Applicant’s Manager, hereinafter “Ms R”. Both the Applicant and Ms R are employed by the same constitutionally covered business,[2] hereinafter “Employer”. The Applicant is a “worker” within the meaning of s.789FC(2) of the Act, and her allegations as to bullying concern alleged conduct towards her when she was “at work”. It is apparent that the Applicant holds a “genuine belief” that she has been bullied at work (s.789FC(1)).
Conciliation conferences were held with the parties over the course of a three-month period. Outside of these conferences, the Employer sought to conduct and finalise two internal investigations into the Applicant’s alleged bullying claims against Ms R, and to engage in a workplace dispute resolution process to attempt to resolve the proceedings. On 13 October 2021, it became apparent that the proceedings would not be resolved by agreement between the parties, and directions were issued to program the matter for hearing. These directions were subsequently amended (extended) at the request of both parties.
A Hearing was conducted in Sydney (in person) on 7 December 2021.
At the Hearing, the Applicant was represented (with permission) by Ms Claire Roberts, of counsel, instructed by Ms Sandra Marks, Legal Team Leader, Harmers Workplace Lawyers. Ms R and the Employer were both represented (with permission) by Ms Alice DeBoos, Managing Partner, Kingston Reid Lawyers.[3]
Ms R and the Employer oppose the Anti-Bullying Application, including any relief sought by the Applicant flowing from same. In this regard, Ms R and the Employer rely upon three core contentions:
(a) the allegations made by the Applicant against Ms R, taken separately and together, do not constitute bullying for the purposes of s.789FD of the Act;
(b) the alleged bullying conduct complained of by the Applicant constitutes reasonable management action, carried out in a reasonable manner, meaning that Ms R has not been acting unreasonably towards the Applicant (cf. s.789FD(2) of the Act); and
(c) the Anti-Bullying Application, especially having regard to the relief sought, is an attempt to avoid and erase a reasonable internal performance improvement process so as to enable the Applicant to dictate who should manage her, what training she should get, and how her role should be undertaken.
Evidence
The Applicant relied upon the following evidence in the proceedings:
a) Witness Statement of the Applicant dated 1 November 2021; and
b) Reply Witness Statement of the Applicant dated 22 November 2021.
Ms R relied upon the following evidence in the proceedings:
a) Witness Statement of Ms R dated 15 November 2021;
b) Witness Statement of Mr C dated 15 November 2021; and
c) Witness Statement of Ms M dated 15 November 2021.
Legislation and case law
Sections 789FD and 789FF of the Act[4] read:
789FD. When is a worker bullied at work?
(1) A worker is bullied at work if:
(a) while the worker is at work in a constitutionally‑covered business:
(i) an individual; or
(ii) a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
(b) that behaviour creates a risk to health and safety.
(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.
(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:
(a) the person is:
(i) a constitutional corporation; or
(ii) the Commonwealth; or
(iii) a Commonwealth authority; or
(iv) a body corporate incorporated in a Territory; or
(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;
then the business or undertaking is a constitutionally‑covered business.
789FF. FWC may make orders to stop bullying
(1) If:
(a) a worker has made an application under section 789FC; and
(b) the FWC is satisfied that:
(i) the worker has been bullied at work by an individual or a group of individuals; and
(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;
then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.
(2) In considering the terms of an order, the FWC must take into account:
(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body—those outcomes; and
(b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes—that procedure; and
(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes—those outcomes; and
(d) any matters that the FWC considers relevant.
The Commission’s powers under s.789FF(1) are of wide import insofar as the Act provides that the Commission may make any order that it considers appropriate. However, the power to make such an order is conditional upon the Commission first being satisfied that the worker has been “bullied at work”. As Vice President Hatcher stated in Mac v Bank of Queensland Ltd[5] (Mac v BOQ):
“[75] It can be seen that s.789FF establishes three prerequisites to the exercise of the power to make anti-bullying orders:
(1) A worker must have made an application under s.789FC.
(2) The Commission must be satisfied that 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.”[6]
There are several aspects of ss.789FD and 789FF that have been considered by case law.
Firstly, the test imposed is an objective one, with the measure of “reasonability” being a question of fact.[7] In other words, the impugned behaviour will be caught by s.789FD if a reasonable person (having regard to all the facts and circumstances) may consider it to be unreasonable.[8]
Secondly, the word “repeatedly” must be applied, meaning that a single incidence of unreasonable behaviour will fall outside the scope of the section.[9] Beyond a single incidence, however, there is no specific number of incidences required to meet the requirement for “repeated” (unreasonable) behaviour.[10]
Thirdly, the impugned behaviour must also “create a risk to the health and safety”. In this regard, in Re SB,[11] Commissioner Hampton stated:
“[44] The unreasonable behaviour must also create a risk to health and safety. Therefore there must be a causal link between the behaviour and the risk to health and safety. Cases on causation in other contexts suggest that the behaviour does not have to be the only cause of the risk, provided that it was a substantial cause of the risk viewed in a common sense and practical way. This would seem to be equally applicable here.
[45] A risk to health and safety means the possibility of danger to health and safety, and is not confined to actual danger to health and safety. The ordinary meaning of ‘risk’ is exposure to the chance of injury or loss. In the sense used in this provision, the risk must also be real and not simply conceptual”.[12]
Fourthly, the worker must have been bullied “at work”.[13]
Fifthly, in relation to s 789FF(1), as the Full Bench in Mekuria v Mecca Brands Pty Ltd said:[14]
“[29] Apart from the requirement for an application to have been made under s.789FC, s.789FF(1) establishes two prerequisites: first, the Commission must be satisfied that the worker has been bullied at work by an individual or group of individuals and, second, the Commission must be satisfied that there is a risk that the worker will continue to be bullied at work by the individual or group. The use of the definite article in s 789FF(1)(b)(ii) in connection with the individual or group of individuals indicates that they must be the same as the individual or group of individuals considered for the purpose of s 789FF(1)(b)(i). That is, it is not sufficient to satisfy the second condition in s 789FF(1)(b)(ii) by demonstrating that there is a risk of being bullied at work by individuals other than those who have been found to have engaged in bullying pursuant to s 789FF(1)(b)(i).”[15]
Sixthly, even if a worker is able to establish the impugned behaviour satisfies the criteria in sub-s.789FD(1) of the Act, sub-s.789FD(2) of the Act operates to qualify the impugned behaviour if that behaviour is “reasonable management action carried out in a reasonable manner”. As to the operation of sub-s.789FD(2), again I rely on Commissioner Hampton’s considerations in Re SB:
“[47] Section 789FD(2) of the Act is not so much an “exclusion” but a qualification which reinforces that bullying conduct must of itself be unreasonable. It also emphasises the right of management to take reasonable management action in the workplace.
[48]The Explanatory Memorandum refers to management decision and decisions about how work is to be carried out. This suggests that the term may be required to be given a wide meaning under s.789FD(2) and that the Legislature intended everyday actions to effectively direct and control the way work is carried out to be covered by the exclusion.
[49] Determining whether management action is reasonable requires an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time. Without limiting that assessment, the considerations might include:
·the circumstances that led to and created the need for the management action to be taken;
·the circumstances while the management action was being taken; and
·the consequences that flowed from the management action.
[50] The specific ‘attributes and circumstances’ of the situation including the emotional state and psychological health of the worker involved may also be relevant.
[51] The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’. In general terms this is likely to mean that:
·management actions do not need to be perfect or ideal to be considered reasonable;
·a course of action may still be ‘reasonable action’ even if particular steps are not;
·to be considered reasonable, the action must also be lawful and not be ‘irrational, absurd or ridiculous’;
·any ‘unreasonableness’ must arise from the actual management action in question, rather than the applicant’s perception of it; and
·consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances.
[52] For the circumstances in s.789FD(2) of the Act to apply, the management action must also be carried out in a ‘reasonable manner’. Consistent with the approach above, what is ‘reasonable’ is a question of fact and the test is an objective one.
[53] Whether the management action was taken in a reasonable manner may depend on the action, the facts and circumstances giving rise to the requirement for action, the way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters.
[54] All of the requirements of s.789FD(1) must be read together. In terms of the issues in dispute in this case, this means that the Commission must consider whether an individual or group of individuals have repeatedly behaved unreasonably towards the applicant and whether that behaviour has created a risk to health and safety. A positive finding on each of these elements, and if appropriate, a finding that the circumstances contemplated in s.789FD(2) of the Act do not apply to the behaviour, must be made for the Commission to find that the applicant worker has been bullied at work”.[16]
The reasoning of the Full Bench in Blagojevic v AGL Macquarie Pty Ltd; Mitchell Sears[17] is also relevant:
“[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.”[18]
Finally, the observations of Vice President Hatcher in Mac v BOQ[19] as to examples of conduct “which one might expect to find in the course of repeated unreasonable behaviour that constituted bullying at work” are pertinent:
“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.”[20]
The Applicant and Ms R
The Applicant has a Degree in Practising Accounting (Monash University, 2006), and a Systems Applications and Product (SAP) R/3 Consulting Certificate (2008), along with extensive training and experience in SAP.[21] She commenced employment with the Employer on 29 September 2020 in the position of Payroll Analyst pursuant to a contract of employment dated 1 September 2020.[22] The Applicants salary under the contract is $120,450.00 (total fixed remuneration).[23]
The Applicant’s role and responsibilities as a Payroll Analyst at the Employer include:
a) Maintaining and building productive relationships with the Assurance Lead, Head of Governance and Assurance, Head of People and Payroll Services, Business, System and other SMEs;
b) Gathering, organising and synthesising large amounts of information from various sources;
c) Performing reporting and data extracting from core HR systems (SAP and workday);
d) Translating business requirements into rules to validate entitlement delivery;
e) Building business requirements into functional specifications;
f) Liaising with vendor for delivery of system changes for business requirements;
g) Performing User Acceptance Testing for system changes;
h) Working with stakeholders to understand their needs, concerns and the environment that they operate in.[24]
The Applicant says that an overriding objective of her role, as well as her own personal expectation, is that she perform her work as accurately as possible, especially when such work involves compliance obligations.[25] She considers herself to be a very conscientious employee.[26]
Ms R has worked at the Employer for over 16 years (in various roles). At the time of the alleged instances of bullying, and since around February 2020, Ms R has been employed as the Assurance Team Manager, being a team made up of three employees. The Applicant directly reports to Ms R.[27]
The function of the Assurance Team is focused upon mitigating risk of payroll issues, and sits within the Employer’s overall Governance and Assurance Function (GAF). The GAF is headed up by Mr C.[28] The GAF is made up of three teams “BOOT41” (which is also referred to as “BOOT10”), BOOT12, and the Assurance Team.
Ms R gives the following evidence in relation to the Applicant’s role at the Employer:
“5. [The Applicant] started with [the Employer] on 29 September 2020 in the position of Payroll Analyst. [The Applicant’s] position is part of the Assurance team.
6. [The Applicant’s] job is to perform assurance controls based on data, interpretations and assumptions. This may include verifying entitlements and providing calculations to
manage exceptions. Except for one discrete task, [The Applicant] has not been expected to assist with projects managing remediation, compliance or entitlement interpretation. To date, [The Applicant] has only been engaged to work on and deliver one task at a time, meaning that [The Applicant] does not have competing deadlines in relation to the substantive pieces of work she is performing.
7. Due to an impending deadline and the need to allocate additional resources to the BOOT12 Team, [The Applicant] commenced temporarily with BOOT12. [The Applicant] worked with the BOOT12 team for approximately 7 weeks. Once the BOOT12 Team no longer required [The Applicant’s] assistance, [The Applicant] returned to the Assurance team on 16 November 2020.
…
9. In response to paragraph 10 of [The Applicant’s] Statement, I say that [The Applicant’s] role is primarily centred around current Enterprise Agreements (EAs). [The Applicant] has only undertaken one task in the Assurance team which referenced a past EA.”[29]
Applicant’s evidence concerning alleged bullying by Ms R
The Applicant says that despite no concerns being raised with her performance during the period September 2020 to June 2021, this changed markedly after she was assigned the task of comparing the data of eight employees against relevant enterprise agreements (Ops Task) in May 2021, which the Applicant considered (or understood) involved a BOOT (Better Off Overall Test) calculation between what eight relevant employees were earning whilst on an Individual Agreement (IA), as compared to what these same employees would be earning if the relevant enterprise agreement (EA) was to be applied. The Applicant says that in being assigned this task she (in summary) was provided no training on how to manually calculate BOOT calculations in Excel, was given unreasonable timeframes to complete the task, was not provided with relevant information (or data) to properly undertake the task (despite repeatedly requesting same), and had a deadline for the work to be submitted brought forward by one day.[30] Despite communicating these issues to her supervisor, Ms R, and suggesting alternative approaches, Ms R ultimately pressed for the Applicant to complete her work on the Ops Task and submit it for peer review on 27 May 2021 (being one day prior to the deadline set of 28 May 2021).[31]
The Applicant did not complete, or otherwise submit, her work on the Ops Task on 27 May 2021. On Friday, 28 May 2021, the Applicant was unwell, and sent a text message to Ms R requesting sick leave. The Applicant says that after requesting this sick leave, she was essentially excluded from the “loop” on the Ops Task (including a peer review of same), and that Ms R’s behaviour towards her changed. An example of this occurred on 31 May 2021, when Ms R did not answer the Applicant’s telephone calls or respond to her text message about being unable to log in for a remote team meeting (despite Ms R always allegedly being responsive to her calls and texts in the past).[32]
Other examples of what the Applicant says highlight the differential and unfair treatment of her post 28 May 2021 include:
a) her request for training in the SQL (being a programming language used for database applications and analytics) being rejected;[33]
b) comments made to her in a group meeting by Ms R that the Applicant considered demeaning, humiliating and embarrassing;[34]
c) short timeframes to other work tasks being imposed upon her;[35] and
d) the failure of Ms R to properly acknowledge the pressures that the Applicant was experiencing whilst working full time, home-schooling her child during the COVID-19 pandemic lockdowns, and grieving from the loss of her otherwise healthy 39-year-old cousin back in China, including in respect of the “Multi Actions and Transferred scenarios” task (referred to below in this decision as the ‘ALL Task’).[36]
On 23 July 2021, at a meeting with Ms R, the Applicant says that she was subjected to a poor (and unfair) annual performance review, mainly around her performance on the Ops Task. She says that at the meeting she rebutted “politely with facts” Ms R’s performance concerns.[37]
On 26 July 2021, Ms R sent the Applicant an email in relation to “the lengthy discussion we had on Friday [23 July 2021] around your performance review”.[38] Ms R, in that email, goes on to state that “I have been clear in stating that I do not consider your performance over the last 2 months as having achieved expectations and that I expect to see a marked improvement over the next few months (and year) to consider that you have delivered on the full expectations of your role”.[39] Ms R’s core areas of concern in relation to the Applicant’s performance (with examples provided) are identified in the email as:
a) missing or ignoring timeframes and deadlines;
b) being reactive to deadlines on new tasks or enquiries into progress on a task where there have been delays in delivery; and
c) a lack of focus around priorities where a pro-active approach is needed.[40]
At the conclusion of the email, Ms R lists what she says was discussed at the 23 July 2021 meeting in terms of a “go-forward position” to address the Applicant’s performance concerns, as follows:
“1. I’d like you to have a think about what it is you need to improve on the items raised today. E.g. how I can help, what we can do differently, any system training you might need, etc.
2. I feel that regular check in’s [sic] would be beneficial, and would like to meet at least once a week to track progress. We can talk about blockers, answer any questions on requirements, identify any system knowledge/understanding constraints, etc. I will set this up for each Wednesday (as we already have our team huddle each Monday where concerns can be raised). I ask that you please add additional meetings if required to progress your work.
3. One of the key issues is around estimating the time required to complete an assurance control, and setting timeframes for activities to ensure adequate allocation of time to all tasks. I’d like you to track activities required for each stage of the assurance control (with timeframes for each) and would like a written update each Friday as to show progress and how you have tracked against expected deliverables.
I believe the above will be a good starting point to track progress and performance improvement, and I would be happy to hear any suggestions you have on this.”[41]
On 27 July 2021, the Applicant responded to Ms R’s email of 26 July 2021, providing various explanations for the performance concerns that had been raised against her. These explanations included a lack of clarity around tasks assigned, lack of support, not enough resources (i.e. employee numbers) assigned to tasks, incomplete or inaccurate information supplied to undertake the tasks, lack of experience, and interruptions due to leave.[42] In her evidence before the Commission, the Applicant states that she considered Ms R’s email of 26 July 2021 to contain “a great deal of misleading information” which “totally misrepresented my performance”.[43]
On 29 July 2021, the Applicant received a meeting invitation from Ms R. In relation to this invitation, the Applicant states:
“On Thursday, 29 July 2021, [Ms R] sent me a meeting invitation with the subject “1:1 for a catch up on Wed 4 Aug 2021”. The subject “1:1” was exactly the same subject as was used for our regular manager and team member catch ups. I thought that the meeting was for our ordinary 1:1 meeting and I accepted the meeting invitation. A copy of meeting invitation is attached and marked “D1”. ”[44]
When the Applicant attended the meeting (via Microsoft Teams) at 10am on 4 August 2021, the Applicant says that she was surprised to learn that the meeting was a Stage 1 performance management meeting, otherwise called Informal Performance Management (IPM), under the Employer’s relevant performance management policy. The Applicant advised Ms R that she had already responded to the performance issues that had been raised against her (via her 27 July 2021 email response), and that she did not “think that I have any performance issues to go through this program”.[45]
On Friday, 6 August 2021, during a Microsoft Teams meeting with Mr C, the Applicant raised her concerns about Ms R, the IPM, and her alleged poor treatment more generally. However, she did not consider that Mr C was appropriately responsive during the meeting. Further, she considers that Mr C’s attitude towards her changed dramatically during this meeting.[46] After this meeting, and after attempting to contact the Employer’s human resources department, the Applicant filed her Anti-Bullying Application with the Commission.[47]
On Saturday, 7 August 2021, Ms R sent the Applicant an email titled “Commencement of Informal Performance Management”, which reads:
“Hi [Ms W],
Apologies that I wasn’t able to send this sooner. I wanted to touch base with you following our first meeting on Wednesday at 10am to commence Informal Procedure Management (IPM). I have been very clear about this being the beginning of IPM which will continue for a period of 4 weeks and, if we don’t see an improvement in performance and meeting the expectations of your position, this could lead to Formal Performance Management.
On Wednesday, after some discussion regarding the issues we have recently discussed, you expressed surprise at my reference to IPM. I understand (as you have made clear) that you do not agree that there is a performance issue to address, however, as previously discussed and reiterated in my PFR summary to you, there is substantial evidence that we do have issues that need to be worked through. I refer you to my email of 26/07/2021 where I have outlined said issues. I feel that you believe the discussions around these issues are finalised as you provided responses to them, however, as mentioned on Wednesday, I do not believe your responses justify or provide sufficient insight into the extent of the issues noted.
On Wednesday, we agreed that one of the key issues is setting timeframes, however, I would like to be clear that this is not the only basis for expected improvement over the next 4 weeks.
Furthermore, I spoke on Wednesday of the following expectations which were to be effective immediately:
1.We will meet each week to discuss performance and feedback. I will book this into our calendars for each Wednesday morning.
2.I would like you to send a written update at the end of each day on the progress that you have made.
3.I would like a written timeline of expected activities for any task undertake [sic], including a delivery date.
I have not yet received any report outlining daily progress, nor have you provided any view of expected activities or an expected delivery date for the Treasury Allowance remediation allocation to you on Tuesday 03/08/2021. If you do not engage with me on these parameters, I will set the expectation of finalising the Treasury Allowance output by COB Wednesday 11/08/2021. I believe this is sufficient time to be able to finalise this piece, and does consider your flexible working arrangements.
[Ms W], I am here to support you through this as your manager, however, I must be clear that you need to take ownership of your role and your own performance. I expect that we will have a two-way conversation where I will share my feedback with you on your performance and hope that you will do the same.
Thanks,
[Ms R]”[48]
On Sunday, 8 August 2021, the Applicant responded to Ms R’s email. In that email, the Applicant (in summary) states:
a) she does not have performance issues;
b) if she did have performance issues, “would this be the right time to enforce IPM to a busy working mum struggled [sic] already between work and home schooling, and make her and her family’s life even tougher? Where was the ‘Human First’?”;
c) she was not informed about the IPM, or its Stage 1 commencement, until she attended the scheduled one-on-one meeting with Ms R on 4 August 2021;
d) she asked Ms R, at the meeting on 4 August 2021, what she should do if she was not happy with Stage 1 of the IPM commencing. Despite Ms R advising the Applicant that she would check and get back to her, Ms R never has;
e) there was no agreement at the 4 August 2021 meeting as to one of the key issues being the setting of timeframes, or that there were to be three expectations (as set out in Ms R’s email of 7 August 2021) effective immediately;
f) daily progress details in relation to the Treasury Allowance mediation have been supplied by the Applicant to Ms R;
g) since the Ops Task, the Applicant has been experiencing anxiety and stress as a result of Ms R’s behaviours, including unreasonable work expectations, unjustified criticisms and complaints, creating misinformation, lack of support, ignoring reasonable requests, victimisation, and irresponsible decision making;
h) there are various objective reasons as to why timeframe issues “could be caused”, or might arise. If these objective reasons are not considered together, blame becomes subjective;
i) there has been no care showed towards the Applicant during the lockdown period, especially given she has been home-schooling her six-year-old during this time whilst working full time;
j) the bullying cannot continue given its impact upon the Applicant’s mental and physical health, as well as her family’s life, and she needs to seek some help to stop the bullying behaviours. An anti-bullying application was submitted to the Fair Work Commission in the afternoon of Friday, 6 August 2021.[49]
Ms R’s evidence concerning the Applicant’s poor or substandard work performance
Career Break Task
In April 2021, Ms R first began to notice areas of concern and unacceptable performance in respect of the Applicant’s work on a project known as the Career Break Task. In this regard, Ms R’s evidence is that the Applicant took a long time to complete the Career Break Task, and went silent in terms of her communication with Ms R in relation to the project for a period of five weeks. Despite the Applicant working only on the Career Break Task (i.e. one project task at a time), it still took the Applicant seven weeks to deliver the project, and even when the Applicant’s work was received by Ms R, various outstanding issues remained which Mr R ended up taking it upon herself to resolve. Ms R raised her performance concerns (in respect of delayed timeframes) with the Applicant at the time.[50]
Ops Task
On 12 May 2021 Ms R allocated the Applicant the Ops Task. The Ops Task was set a completion deadline of 28 May 2021 (i.e. two and a half weeks post task allocation).[51]
In allocating the Ops Task to the Applicant, she was provided (by Ms R) with a set of exemplar employee hours of work rosters (rosters). The Applicant was asked to assume that the rosters that she had been provided were correct. In other words, as I understand it, the rosters were not to be questioned, given the reach around, or otherwise varied (or considered to be variable), in the calculation task/s that had been set. In short, the Ops Task was about ascertaining the calculations (and actual or likely costs) associated with each of the roster examples that had been provided.[52] The outcomes from Ops Task were then to be provided to others, within GAF or outside of it, to consider for the purposes of other related tasks or projects.
On 13 May 2021, the Applicant raised concerns with Ms R (via Microsoft Teams) that the 28 May 2021 deadline may not be met as the Applicant did not consider that she has received the required information and data to complete the task by that date. In short, the Applicant considered that she needed further historical (roster/payroll) data to complete the Ops Task.[53]
Ms R reiterated to the Applicant (at the 13 May 2022 Microsoft Teams meeting) that the Ops Task did not require roster analysis against actual system data (i.e. historical data), and that the rosters provided were to be accepted as correct (or truth) for the purposes of the task. In her evidence, Ms R makes the point that the Ops Task was not about validation of past rosters, or payments made pursuant to same.[54] Ms R also advised the Applicant that the historical data that she was seeking would be difficult and time consuming to obtain and collate, and would not be produced in a form fit for purpose in respect of the analysis required for the Ops Task.[55] Despite these discussions, Ms R’s evidence is that the Applicant “would not accept anything I said and was adamant that she needed this data for the review”.[56] Indeed, on 17 May 2021, the Applicant again reiterated her position that historical payroll data was required to complete the Ops Task.[57]
By 27 May 2021, the Applicant was yet to provide her full draft calculations to Ms R for review. Further, of the little data that the Applicant had prepared as at 26 May 2021, there were issues with same (including data provided by the Applicant that was missing two of the eight employees that were supposed to be included for the Ops Task). Ms R decided to organise another Assurance Team member to assist the Applicant to meet the deadline, however, this team member ultimately took the initiative to finalise all of the calculations (including some of those that the Applicant was still reviewing herself). When Ms R received the full data output calculations, Ms R identified a number of additional issues with the base data that had been prepared by the Applicant as inputs (including missing and duplicated dates).[58]
Having subsequently reflected upon the Applicant’s performance in respect of the Ops Task, Ms R (in summary) held the following concerns[59]:
a) the team member who ultimately finalised the calculations for the Ops Task is employed at the same grade as the Applicant. Whether or not he used the same computer software program (SQL or Excel) to devise and finalise such calculations is not to the point. In Ms R’s view, the Ops Task could have been completed in the allocated timeframe using either of these computer software programs;
b) when undertaking a peer review of the calculations finalised by the other team member, whilst the Applicant provided some feedback, she did not otherwise substantially contribute to the review (despite her being the one who had initially been set the task);
c) an employee employed at the Applicant’s grade (and in the Applicant’s role) is employed on the basis that they are expected to work through complex scenarios, and exercise sound judgement. In undertaking a task, such an employee will be relying upon data provided by others that may in some instances be incomplete or unexplained. If there are data limitations, an employee (in the Applicant’s role and grade) is expected to document assumptions made based upon such limitations, so as to provide solutions and workarounds, and resolve blockers. Tasks such as the Ops Task are assumed to be part of a core skillset or remit for employees engaged in the Applicant’s role and grade (i.e. absent the need for further training to undertake or complete the task);
d) despite the Ops Task being explained to the Applicant, and support being available to her through Ms R and others, it was apparent to Ms R that the Applicant simply did not understand or accept the instructions she had been provided to complete the Ops Task. So much is evidenced from the Applicant’s repeated insistence that she required historical data, despite being repeatedly told that such historical data was not required for the Ops Task, or otherwise necessary to undertake calculations. Further, many of the purported data limitations that the Applicant had been raising had already been provided to her, or she had already been briefed on (including as to areas of incomplete data). Again, data relied upon may not always be perfect, but an employee in the Applicant’s role is expected (according to Ms R) to be able to “manually address or consolidate data before being able to use it in our calculations”. Ms R further stated in her evidence:
“both the codes and calculation rule issue were raised by [the Applicant] only two days before the deadline, being two weeks into the review, and prior to [the Applicant] having commenced any work on the calculations. These are the kind of issues [the Applicant] should have raised earlier on in the project timeline”.
Annual Leave Loading Task
On 18 June 2021, Ms R allocated the Applicant the task of reviewing annual leave loading (ALL Task). The ALL Task was set a completion deadline of one week (i.e. by 25 June 2021).[60] The Applicant did not complete the ALL Task until 31 July 2021 (being seven weeks after 18 June 2021).[61]
Prior to 31 July 2021, Ms R had discussions with the Applicant about the competition of the ALL Task. During these discussions, which essentially were focused upon meeting the ALL Task deadline, the Applicant:
a) referred to having to also submit comments on her Performance Feedback and Review (PFR); and
b) advised that doing the ALL Task in Excel will be challenging because employees will need to be reconciled individually.[62]
Ms R’s position in respect of the PFR was that the Applicant had already been provided three weeks to make comments on her PFR Review. Whilst Ms R’s position in respect of individual reconciliations was that it would be best if such reconciliations were indeed done individually (i.e. with such individual reconciliations being factored into the one week deadline set for the task, and not being a reason for a delay (let alone a six week delay on the original deadline of one week)).[63]
The Applicant’s performance (including delay) in doing the Ops and ALL Tasks compounded Ms R’s view (including going back to the Career Break Task) that the Applicant was not performing to expectations, or the level required of her grade and role. Indeed, from Ms R’s experience in working with the Applicant, it was readily apparent to Ms R that the Applicant had real difficulties in meeting deadlines, often made mistakes in the work she eventually did produce, and was reactive, overly sensitive or plain non-responsive when asked about updates, solutions, ways forward, and/or time estimates.
Annual performance review
On 23 July 2021, Ms R (as Manager) met with the Applicant to conduct her face-to-face PFR, which is essentially an annual performance review. During this meeting, Ms R’s evidence is that she advised the Applicant that:
a) whilst the Applicant was to be rated as “meets expectations”, this was only because the Applicant was new to the job (having been there for just nine months); and
b) Ms R did not consider that the Applicant had actually been meeting expectations. Rather, the Applicant had real performance issues that needed to be addressed going forward, concerning the Applicant’s apparent inability to meet deadlines and manage priorities within a task.[64]
According to Ms R, upon these performance concerns being raised, the Applicant became agitated and argumentative, raised her voice, and in essence refused to acknowledge any concerns relating to her failure to meet deadlines, or her substandard performance. Indeed, Ms R’s evidence is that the Applicant went so far as to assert that she has no performance issues to work on, and always provides quality work.[65]
Ms R’s informal performance management of the Applicant
Unwilling to allow or otherwise enable the Applicant’s unacceptable performance behaviours to linger, Ms R consulted with her Employer’s workplace relations team for solutions, and was advised that commencing an informal low level performance process with the Applicant would be best in redirecting or realigning the Applicant towards the level expected of her role.[66]
On 4 August 2021, Ms R met with the Applicant to advise her of the commencement of an IPM, which was to continue for four weeks. The issues to be dealt with concerned those raised by Ms R with the Applicant at the PFR.
During the 4 August 2021 meeting, the Applicant again disputed that she had any performance concerns to be addressed.[67]
On 7 August 2021, Ms R emailed the Applicant to summarise and follow-up upon the 4 August 2021 meeting and the IPM.[68]
On 8 August 2021, the Applicant emailed Ms R, copying in Ms R’s supervisor, Mr C, and various other senior executives of the Employer. In that email, the Applicant outlined that she did not consider that she had performance issues, and set out a range of alleged inappropriate or bullying behaviours that she asserted Ms R had engaged in. The Applicant also advised that she had already filed a bullying application with the Commission.[69]
As a result of the Applicant’s email of 8 August 2021, Mr C conducted an investigation of the complaints made by the Applicant against Ms R. During this time, the IPM was placed on hold, and the Applicant’s reporting line changed from Ms R to another supervisor.[70]
Outcome of Mr C’s investigation into bullying allegations made by the Applicant against Ms R
On 10 August 2021, Mr C commenced his investigation into the bullying allegations made by the Applicant against Ms R (as set out in the Applicant’s email of 8 August 2021).[71]
After interviewing both the Applicant and Ms R separately, Mr C advised the Applicant, at a meeting on 31 August 2021, that the outcome of his investigation was that Ms R had not engaged in any bullying behaviour against the Applicant. At this meeting, the Applicant advised that she disagreed with this outcome, and immediately sought information as to how she could challenge (or appeal) Mr C’s investigation outcome.[72]
On 22 September 2021, Mr C became aware that not only was the Applicant challenging the outcome of his investigation, but that she had also made bullying allegations against him.[73]
Outcome of Ms M’s investigation into bullying allegations made by the Applicant against Mr C, and the Applicant’s challenge to Mr C’s investigation
On 10 September 2021, Ms M, Legal Counsel and Workplace Grievance Review Manager, received a grievance from the Applicant regarding Mr C’s investigation. She commenced her investigation into same that day.[74]
On 20 September 2021, after the investigation had commenced, the Applicant raised with Ms M various additional complaints about Mr C.
On 8 October 2021, Ms M finalised her investigation report into the review of Mr C’s investigation, and the allegations made by the Applicant against Mr C. The ultimate findings of Ms M’s investigation (in summary) were that:
a) Mr C’s investigation was conducted appropriately, and did not consider or otherwise rely upon misinformation in reaching its conclusions;
b) the substantive conclusions and outcomes set out in Mr C’s investigation report ought not be disturbed; and
c) the concerns and allegations made against Mr C in relation to his conduct were unfounded and/or unsubstantiated.[75]
Applicant’s Submissions
The Applicant alleges eight separate acts of unreasonable behaviour and bullying on the part of Ms R, as follows:
“10. The Applicant reasonably believes that she has been bullied at work for the purposes of section 789FC by the repeated unreasonable behaviour of Ms R and that the behaviour of Ms R has created a risk to health and safety, for the purposes of section 789FD.
11. The decided cases concerning the expression “behaved unreasonably” as it appears in section 789FD(1)(a) have held that behaviour is unreasonable if a reasonable person, having regard to all the circumstances, may consider it to be unreasonable.
12. The expression “[r]epeatedly behaved unreasonably” in section 789FD(1)(a) of the Act is to be interpreted and applied with reference to the policy and 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. The unreasonable conduct of Ms R was “repeated” in that it comprised multiple behaviours towards the Applicant over a period of months.
13. According to the House of Representatives Standing Committee on Education and Employment Report, examples of behaviour that may constitute bullying include:
a.abusive, insulting or offensive language or comments;
b.undue criticism;
c.excluding, isolating or marginalising a person form normal work activities;
d.withholding information that is vital for effective work performance;
e.unreasonably overloading a person with work or not providing enough work;
f.setting unreasonable timelines or constantly changing deadlines;
g.setting tasks that are unreasonably below or beyond a person’s skill level;
h.denying access to information, supervision, consultation or resources such
i.that it has a detriment to the worker; and
j.unreasonable treatment in relation to accessing workplace entitlements
k.such as leave or training.
14. Adopting the above categorisations, it is submitted that Ms R has engaged in the following behaviours towards the Applicant that are not reasonable, and that have not been carried out in a reasonable manner.
A. Unreasonable timeline
15. The timeline provided for the [Ops Task] was unreasonable having regard to:
a.the complexity of the task and the volume of data to be analysed;
b.the incomplete information provided in relation to that task;
c.the sporadic and delayed provision of details required for the completion of the task;
d.the failure by the Employer to provide the historic payroll data requested by the Applicant;
e.the Applicant’s lack of training in SQL;
f.the fact that based on the reports that were given at the team meetings on 31 August 2021 and 14 September 2021, the task has still not been fully finalised and therefore clearly required additional time in order to be completed properly; and
g.given the Employer’s statutory obligation to apply due diligence in order to correctly calculate and pay employee entitlements in accordance with the applicable enterprise agreements.
B. Refusal to provide the training in SQL
16. It was unreasonable for Ms R to not respond positively to the request by the Applicant for training in SQL; and it was disingenuous and unreasonable for Ms R to assert to the Applicant (in response to the training request): “That is not what we offer”; given:
a.the asserted concerns of Ms R regarding the Applicant’s performance in relation to the [Ops Task];
b.the fact that another team member who was involved in the review had the benefit of having received SQL training and was able to analyse and process the relevant data more quickly as a result;
c.that SQL is a faster and more effective tool for analysing data than Excel (being the analytic tool that the Applicant was trained and was using); and
d.the fact that the Employer has in fact provided training to employees in relation to analytic tools such as SQL (as confirmed by another team member during a team meeting on 31 August 2021).
C. Refusal to provide the historical payroll reports
17. The request by the Applicant on 13 May 2021 for historical payroll reports was warranted and necessary in order for the [Ops Task] to be completed properly and in accordance with the obligations of [the client] pursuant to:
a.the [client] Group Services Pty Ltd [client] Enterprise Agreement 2016;
b.the [client] Enterprise Agreement 2019; and
c.section 50 of the Fair Work Act 2009 (Cth), which provides that a person must not contravene a term of an enterprise agreement.
18. The approach adopted by Ms R to these important calculations was cavalier and lacking in due diligence and particularly egregious given the [Employer’s] recent history in relation to admitted enterprise agreement non-compliance.
19. Ultimately, due to the failure of the [Employer] to provide the information requested by the Applicant, the review was based on estimates as to hours worked and was not an accurate calculation of the amount of remuneration that would have been payable to the relevant employees under the provisions of the enterprise agreements for the purposes of comparing such remuneration to the amount that was actually paid to the employees.
20. The use of estimated hours figures meant that the remuneration comparison process was a sham and not a genuine comparison.
21. A similarly reckless approach was adopted Ms R in relation to the “teller one / treasury allowance review and remediation” [ALL Task] in which the Applicant again raised a concern about the accuracy of the data being used, which was ignored.
22. As noted by the Fair Work Ombudsman in her recent media release in relation to the prosecution of the [name omitted] for failing to undertake reconciliations to ensure that employees were not paid less overall compared to the applicable industrial instruments:
“Businesses have a responsibility to their employees, customers and the Australian community to get it right by prioritising workplace law compliance, investing in their payroll systems and conducting audits. Boards should treat the lawful payment of their employees as a core governance requirement.”
D. Unreasonable treatment in relation to accessing leave
23. The Applicant requested:
a.personal leave on 28 May 2021, which she took that day; and
b.details of potential leave options on 20 July 2021 given the pressures of home schooling her daughter during the lockdown.
24. There was a change in approach towards the Applicant following her request for personal leave on 28 May 2021. No performance issues had been raised with her previously. Rather, she had only received praise for work completed by her up to that date.
25. The Applicant’s request for leave options on 20 July 2021, in relation to the additional stress to which she was subjected during the period in which her six-year-old daughter was being home schooled, was treated in a manner that clearly conveyed to the Applicant that such leave was not supported:
a.on 20 July she was advised to use two of her rostered days off, and that Ms R would advise her of her options later; and
b.on 23 July, the response that was initially provided by Ms R was that: “other colleagues are having home schooling too, but they are trying to cope themselves.”
E. Exclusion /ignoring following request for leave
26. From the date the Applicant requested personal leave, she was excluded from all communications regarding the [Ops Task], other than such updates as were reported to the entire team during team meetings. Given her significant involvement in this project, her sudden exclusion from the task was clearly a punitive or retaliatory reaction to the fact that she had taken personal leave.
27. Ms R also ignored multiple communications from the Applicant following her exercise of her right to take personal leave, including not responding to the Applicant’s SMS message on 31 May 2021 or her emails dated 20 and 25 July 2021.
F. Insulting and offensive comment
28. The comment made by Ms R during the team meeting in June 2021 that “ELearnings just take two hours”, in response to the Applicant’s indication that she would be doing E-Learning that day, was demeaning and unnecessary, particularly:
a.given that it was made in the presence of other team members; and
b.the use of the word “just” implied that the Applicant was lazy and was only doing limited work.
G. Micromanagement
21 The micromanagement of the Applicant on 3 August 2021 in relation to the Assurance task called “Treasury/Teller One Allowance – Review and Remediation” [ALL Task] was also unreasonable. Having only been allocated the task at 11.24 am that day, the Applicant was emailed at 6.53pm to provide an update of the task.
H. Undue criticism
22 For the reasons detailed both above, and in the email from the Applicant to Ms R dated 27 July 2021, Ms R’s criticism of the Applicant’s work performance was unreasonable having regard to all the circumstances. Before imposing any performance improvement plan, the Applicant ought to have been provided with:
a.training regarding the conduct of BOOT comparisons;
b.the SQL training that she had requested; and
c.given tasks in which she was provided with accurate and complete information in a timely manner;
in order for a fair assessment of her performance to be conducted.
23 The fact that the Applicant had raised concerns regarding the timeframe of the [Ops Task] has been raised as a performance issue. The timeframe concern raised by the Applicant was reasonable and warranted. Open communication as to delivery timing concerns ought to be encouraged by an employer, rather than utilised as a basis for performance management.
24 An objective analysis of the task that was provided to the Applicant in relation to the [Ops Task] confirms that the timeline provided to her for completion of this task was unreasonable, having regard to the following:
a.the incomplete details and rules provided to the applicant for the analysis;
b.the repeated requests by the applicant for clarification of the details and rules required for the analysis;
c.the delay in the provision of the details and rules required by the applicant for the analysis;
d.the failure to provide the historical pay results;
e.the [Employer’s] statutory obligation to correctly calculate and pay employee entitlements in accordance with the applicable enterprise agreements.
f.the lack of training regarding BOOT analyses;
g.the lack of training of the applicant in SQL which enables much faster data analysis;
h.the fact that the Applicant raised concerns regarding the unstructured an incomplete information provided and regarding the time frame early after the commencement of the task, and requested support in the completion of the task, which was initially refused; and
i.the fact that the [Ops Task] still appears to be incomplete even after another employee was assigned to this task.
WORK HEALTH AND SAFETY
25. The conduct of Ms R has created a risk to the Applicant’s health and safety in the following respects:
a.it has caused a deterioration in the Applicant’s physical health due to work stress;
b.the Applicant is very anxious about the prospect of being forced by the [Employer] to report to and work for Ms R again; and
c.the Applicant no longer trusts Ms R and is fearful of Ms R being her Manager again.”[76]
Respondent’s Submissions
Ms R submitted that each of the alleged bullying acts either did not occur, or did not constitute bullying, as follows:
“Unreasonable timeline
22. The Applicant’s evidence is that she was required to complete the Ops Task on a timeline which in her view, was unreasonable.
23. Firstly, this is factually incorrect. The evidence of Ms R and Mr C clearly establishes that based on their experience and detailed knowledge of the task, the timeline provided, being some 2.5 weeks, was more than adequate to complete the task.
24. The Applicant did not substantially contribute to the Ops Task, other than reviewing her colleagues work and providing some feedback. The Applicant did not manage to complete any of the calculations, despite having the task for 2.5 weeks with no other substantial tasks or deadlines.
25. Regardless of the Applicant’s opinion as to how she thought the task was to be completed and the required timeframe (given that the Applicant’s perception of the timeframe is not relevant), this allegation fails to meet the definition of bullying as it is clearly reasonable management action carried out in a reasonable manner.
26. As the case law establishes, the Commission does not need to form its own judgement as to appropriate time that the task should have taken the Applicant, only whether the timeframe:
(a) “lacked any evident and intelligible justification such that it would be considered by a reasonable person to be unreasonable in all the circumstances”;
(b) was “irrational, absurd or ridiculous”; or
(c) was a departure from established procedures.
27. There is no evidence to establish any of the above. Instead, there is only evidence from experienced managers that it was a standard task and one that could have and indeed should have been completed within the timeframe provided.
28. Further, there is no evidence from the applicant that the manner in which Ms R requested the Ops Task be undertaken within the timeframe required was unreasonable. Management action which is found to be unreasonable can only be bullying if in fact, it is found that on an objective basis it was carried out in an unreasonable manner. No basis for such a finding in this case exists.
29. The Applicant states that there is evidence to suggest that the Ops Task has still not been fully finalised, therefore showing that additional time was required. This is simply not the truth. The Ops Task concluded on 28 May 2021. There is ongoing work for [the client], however it remains that the task the Applicant was engaged on concluded on 28 May 2021.
Refusal to provide training in SQL
30. The Applicant has not properly articulated how this allegation could be bullying behaviour. It is an operational decision of the respondent to determine which of its employees is trained in and given access to systems and resources.
31. Further, the team the Applicant is employed in does not have access to SQL. Aside from one employee, who has sporadic access to a SQL database due to a previous role with the [Employer], all assurance activities performed by the team over the last four years have been achieved without SQL.
32. Objectively assessed, there is nothing that is unreasonable about the decision not to agree to the provision of training in SQL to the applicant in circumstances where she had the tools required (even if she did not agree) to complete her tasks and the team that the applicant works in, generally, does not have access to SQL at all.
33. This is not bullying and again, there is no evidence that the decision was carried out in an unreasonable manner.
Refusal to provide the historical payroll records
34. In detailing this allegation, the Applicant is revealing that she simply disagreed with the instructions she was given. This is not bullying. Ms R sets out in her evidence that the historical payroll records were not required in order to complete the task asked of the applicant. The Applicant was not involved in any interpretation of the relevant enterprise agreements for the Ops Task, her role was to make calculations using data and assumptions provided to her but prepared by others.
35. In her submissions the Applicant refers to a press release issued by the Fair Work Ombudsman. The tasks leading to the informal performance management process are not related to the proceedings referred to in that release. The insurmountable legal hurdle that the Applicant faces is that regardless of whether the Applicant agrees with the calculation method used by the Respondent, there is simply no evidence which would support a finding that the decision not to provide the Applicant with historical payroll data was unreasonable management action. It is explained convincingly by Ms R as to why that historical data was not necessary.
Unreasonable treatment in relation to accessing leave
36. The submission the Respondent unreasonably failed to support the Applicant taking leave, thereby engaging in bullying is easily rejected as a consequence of the following facts:
(a) The evidence shows that once the Applicant raised issues with Ms R about home schooling and her personal circumstances, Ms R was sympathetic and looked into the provision of Pandemic Special Leave and other forms of leave, provided the Applicant with the information she received and then the applicant was able to access such leave.
(b) The Applicant did not have any of her leave applications rejected and instead, it is not contested that all of the Applicant’s requests for leave were approved.
Exclusion/ignoring following request for leave
37. The allegation that as a consequence of taking personal leave, the Applicant was excluded from communication is rejected.
38. Ms R’s evidence is that there was no exclusion of the Applicant from any relevant communication and that there was no problem or concern ever raised about the Applicant taking personal leave.
Insulting and offensive comment
39. The allegation that the use of the term “just” in relation to the timeframe to complete online training was bullying is lacking in substance.
40. While Ms R does not recall whether the word was used, her evidence is that the meeting in question was specifically about schedules and therefore a statement about the time that a training course should take, in the context of scheduling other activities around it, is perfectly reasonable in the circumstances.
41. There is nothing objectively unreasonable about the statement in the context it was made.
Micromanagement
42. This allegation relates to one incident only, wherein the Applicant was asked for an update later in the day in which she was allocated the task. It is unclear how this constitutes micromanagement and more relevantly, how it constitutes bullying.
43. There is nothing in the request, nor the manner in which it was delivered, that was objectively unreasonable in any way.
Undue criticism
44. The allegation that undue criticism of the Applicant by Ms R was bullying is rejected. The submission of the Applicant appears to be that the grounds for concluding that the Applicant required informal performance management were not well founded or reasonable. The identified performance issues were clearly articulated to the Applicant by Ms R. In his review of the decision, Mr C formed the same conclusion. The Respondents submit that the conclusions of both experienced managers should be accepted.
45. It is not unusual for an employee to disagree with a conclusion formed by his/her manager about performance but this does not make such a decision bullying. The Commission is not required to stand in the shoes of the manager and form its own conclusion as to the relative performance of the Applicant. Rather the appropriate test is as articulated by Vice President Hatcher in Mac v Bank of Queensland namely:
‘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 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.’
46. The cogent and logical explanation for the feedback provided to the Applicant is established in the evidence of Ms R and Mr C. There are no facts which could support a finding that Ms R’s conclusions about the Applicant’s performance lacked any evident or intelligible justification.
Reasonable management action
47. Even if the Commission were to form a view that any of the alleged bullying acts, whether taken separately or together, constituted bullying (which is denied), the action of the Respondents was ‘reasonable management action carried out in a reasonable manner’ in accordance with s.789FD(2) of the Act.
48. Taking into account the relevant considerations as outlined in Ms SB [2014] FWC 2104:
(a) each of the acts were taken by the Respondents in the course of their employment, in good faith and were decisions and requests made on reasonable grounds and undertaken in a practical, polite and constructive manner;
(b) the action taken by the Respondents (individually and collectively) against the Applicant was lawful and would not be considered to be irrational, absurd or ridiculous nor was it intended to in anyway bully her;
(c) careful consideration was given to the matters raised by the Applicant during two separate internal investigations and were overall found not to be bullying or otherwise unreasonable;
(d) the allegation of unreasonableness appears to arise from the Applicant’s own perception the nature of the tasks she was asked to perform and particularly a failure to acknowledge failures in her own performance.”[77]
Applicant’s Reply Submissions
The Applicant also made submissions in reply, which relevantly read:
“4. The Respondents submit that the actions taken were “reasonable management action carried out in a reasonable manner”, falling within the exception in s 789FD(2) of the Act.
5. The reasonableness of management action will depend upon the “action taken, the circumstances the way in which the action impacts upon the worker, the implementation of the action and any other relevant matters”.
6. Regard should be had to the part of the statute in which the relevant sections appear, which:
‘has the evident purpose of establishing a mechanism by which the bullying of workers at work may be stopped. In interpreting, and applying, the expression ‘repeatedly behaves unreasonably’ as it appears in s 789FD(1)(a), the concept of repeated unreasonable behaviour is not to be approached in a manner which divorces it from that purpose. The subject matter is bullying at work, and that must be borne steadily in mind in any consideration as to whether particular behaviours are unreasonable for the purpose of s 789FD(1)(a). A consideration of unreasonable behaviour which loses sight of the objective and subject matter of Part 6-4B may lead to the provisions not achieving their intended purposes, or being used for a purpose that was not intended.’
7. Whether an action in unreasonable may be judged by reference to general administrative law principles, such as looking to whether a decision has an evident and intelligible justification; it is not necessary that a decision be irrational or bizarre.
8. For the reasons set out below, the Applicant does not accept that the Respondents’ actions were reasonable management actions.
Parties’ evidence
9. Whether the “alleged behaviour actually occurred” is a matter the Commission should determine before assessing reasonableness.
10. The Respondents confirm that there “is no dispute that the alleged behaviour occurred” (RS [10]) – though then indicate that there may be residual factual controversies eg, at RS [16] (“the allegations, to the extent of their factual accuracy”), and [21] (“each of the acts either did not occur or occurred (at least in part) but do not constitute bullying as defined”).
11. The Applicant’s 1 November 2021 submissions outlined a series of behaviours that the applicant considers to have amounted to bullying (from [15]ff). The Ms R, Mr C and Ms M statements accept much of what the Applicant said occurred and do not provide a satisfactory explanation for it.
12. These reply submissions briefly address a key incident (the “Ops Task”) by way of illustrative example, and then the Applicant’s general complaint that she was put under pressure and not supported when she asked for help.
Ops Task
13. The Applicant’s evidence was that she raised significant concerns in relation to the way in which the “Ops Task” assigned to the her in May 2021 was proposed to be performed. The Applicant’s understanding was that this task would inform actual entitlements owed to eight people, and her view was that it accordingly needed to be completed with a keen eye to accuracy (eg, applicant’s 1 November 2021 statement, [25]). These were entirely reasonable and appropriate concerns, but the applicant was not supported after raising them and the RS appear to suggest that she ought not have done so.
14. The Applicant was concerned that information was “unstructured and incomplete” (per her 1 November 2021 statement at [27]), that the very serious deficiencies in the data included basic uncertainty about, for example, which individuals certain records actually referred to ([33], [36], [42]) and that she was being instructed to rely on estimates rather than accurate records ([30]). An email sent on 5 March 2021 (at B2 to the Applicant’s 22 November 2021 statement; being an attachment to Ms R’s email to the Applicant on 12 May 2021 email briefing her on the task, at attachment G to the Applicant’s 1 November 2021 statement) appears to show that a [client] Manager has similar concerns about whether the exercise was sufficiently comprehensive – asking “Is this 100% rock solid to challenge by the union and in court?”
15. In response, Mr C’s evidence appears that be that the Applicant was wrong to question what she considered to be unsafe methodology for a task affecting other employees’ entitlements. Mr C appears to indicate that instead the Applicant ought to have simply followed “instructions from Ms R regarding how to deal with” these concerns (at [19]) – ie, by not addressing them, and instead applying assumptions to the data. The Applicant’s role was to “undertake calculations based on data, assumptions and interpretation of the industrial evidence” (Mr C [15]. Comments made by Mr C about needing to deal with ambiguity were found to have been made by Ms M, TM- 3, pages 20, 28).
16. Mr C appears to suggest that a process of being “validated by IR” may have provided a safeguard (Mr C [15]) but includes no explanation as to how the [Employer’s] industrial relations team may have caught errors in figures if these had been calculated on the base of averages and assumptions (in the way the Applicant was asked to perform the task), rather than accurate employee-specific information (as the Applicant told Ms R she thought was appropriate after, per her 1 November 2021 statement at [28], “I gathered my courage” to do so). There is no suggestion that the industrial relations team would have repeated the task in a complete and comprehensive way.
17. Mr C’s evidence is that where “data is unclear or incomplete, this is addressed by assumptions which are set up as business rules, and by clearly articulating limitations in any assurance outcomes” (Mr C [20]). However, the Applicant articulated limitations at an early stage to her supervisor, and was instructed not to address them. Mr C’s evidence does not address that the Applicant considered the approach unsafe.
18. Ms R’s evidence is that the “starting point for review for the Applicant’s purposes was that the rosters provided by [the client] were accurate” (at [16]) and records her saying that it would have been “a monster task” to check the hours employees actually worked (Ms R [17]). However, the fact that confirming that employees’ entitlements had been met by reference to actual hours worked may have been a significant and complex task does not provide an answer to the Applicant’s serious concerns that a failure to complete this exercise was wrong. Ms R’s evidence is that she advised the Applicant that “we were accepting the business’s roster as the source of truth and it contained all of the information that she needed” (at [19]), despite Ms R accepting that there were “differences between payroll and roster data” (at [20]).
19. Ms R indicated that data used by the team may be “partial, incomplete, or unexplained” (at [34]) and suggests that part of the Applicant’s role was to identify “data limitations” (at [34]). As above, however, when the Applicant did identify significant limitations - in a piece of work affecting other employees’ entitlements - she was instructed that it would be too much work to complete the task comprehensively and to proceed on the basis of records that Ms R accepted contained errors. For example, at [42], Ms R’s evidence is that while a deficiency identified by the Applicant was established, the decision not to address that deficiency “was made in a concerned way and accepted by the business”.
20. Ms R indicates that a “better off overall test” clause that appeared in an enterprise agreement extending to certain [Employer] employees did not “apply to [the client]” (at [35]). It is not clear whether Ms R is suggesting that [the client’s] employees were in fact able to be paid less than provided for under the relevant enterprise agreement, or that this was at any stage explained to the Applicant, who for the reasons set out in her evidence had very serious concerns that an imprecise approach could mean employees received less than their legal entitlement in pay.
21. In an email sent to the Applicant on 12 May 2021 instructing the Applicant on the Ops Task, Ms R wrote (a copy of this email is at Attachment G to the Applicant’s 1 November 2021 statement, emphasis added):
“This is everything I’ve received so far…as discussed yesterday, essentially we’re looking to complete BOOT for these employees and need to calculate what they would have been entitled to under the applicable [client] EA’s.”
22. In her evidence, Ms R now states that “the Ops Task did not involve a Better Off Overall Test assessment” (at [36]). However, it was reasonable for the Applicant to understand that she was being asked to complete a “better off overall test” as this was what she was expressly instructed, in writing, by Ms R. The proposal to calculate a “better off overall test” is also summarised in an email regarding the task dated 3 March 2021, which appears at Annexure B2 to the Applicant’s 22 November 2021 statement.
23. Both Mr C and Ms R also agree that a colleague who assisted in completing this task had access to a superior system, and used this system in completing the exercise (Ms C [31], R [33], [107]). Despite the fact that this employee had that access, and used it, Ms R maintains that a comparison between that employee and the Applicant is an appropriate way of considering the applicant’s skill level (Ms R [33]).
Pressure and lack of support
24. The Applicant’s evidence is that she was under considerable pressure and did not receive support when she asked for it. The Respondents’ evidence supports this account.
25. By way of example, the Applicant’s evidence is that she was so overwhelmed with work in May 2021 that she needed to take a day of leave on Friday 28 May 2021 with a headache (Applicant’s 1 November 2021 statement [51]). The Applicant messaged the following Monday morning, 31 May 2021, to say that she was having computer difficulties – 19 minutes before the meeting was due to start (Applicant’s 1 November 2021 statement [53]). Ms R’s evidence is that: “I did not reply to the Applicant’s text, although I do not recall why” (at [109]).
26. On 26 July 2021 at 11.22am the Applicant emailed Ms R asking for payroll standard operating procedures, which a colleague had said “could be a good reference”, and asked for information about how to access those materials (Applicant’s 1 November 2021 statement, Attachment A1). Ms R did not reply as she had “competing priorities” (at [114]). However, Ms R sent the Applicant a detailed email detailing performance concerns at 4.48pm that same day (Ms R, RS-8). Ms R’s evidence that she “simply had not had a chance” to respond to the Applicant’s earlier email asking for specific assistance for more than two weeks was, in Ms R’s evidence “not ideal, [but Ms R considered] is not an excessive timeframe for a non-urgent email” (at [114]).
27. Ms R sent the Applicant an email at 7.50pm on a Saturday (7 August 2021), the day after the Applicant’s Fair Work complaint was filed (and by which time Ms R was aware that the Applicant was considering making some form of complaint). Her evidence accepts that she “accidentally neglected to advise the Applicant that she could refer to HR Direct” in this email (at [86]), though the Applicant realised this herself and made a referral. This Saturday evening email endeavoured to summarise conversations that occurred days earlier in a way that the applicant says is not correct. The Applicant’s version of these events it to be preferred.
9. More specifically, the following are noted.
10. The fact that a summary of enterprise agreements did not include minimums to apply over a 10-year period is correct, not “extraordinary.” This was explained by the Applicant at the hearing, and in the Applicant’s closing submissions.
11. The [Employer] asserts that “potentially valuable benefits” such as for annual leave and overtime loadings “did not form part of the task” the Applicant was asked to complete”. However, a key email sent to the Applicant when she was first instructed on the Ops Task expressly described the exercise as involving the assessments of benefits such as these:
“We would need to apply the 8 years of base salary increases, plus shift allowances and overtime per the [client] EA. Calculate better off overall test. If this results in a lower BOO than L3 role, we can expect resistance.”
12. As the Applicant has indicated on many instances, she believed that the task needed to be completed in a comprehensive way involving the assessment of matters such as this. If it is accepted either that this work was required (which remains the Applicant’s primary submission), or that the Applicant believed it was necessary and her managers failed to communicate effectively with her about the position being otherwise, then her bullying claim should be found to have been established.
13. The [Employer] suggests that the Applicant had “refus[ed] to accept that the required data was provided to her”. However, two examples of data that the then [Employer] provides – being shift times and codes for partial days – were provided in incomplete form on 26 June 2021. This was well after the Applicant was first instructed on the task, and shortly after a colleague was assigned to assist with aspects of the task (at about 3.30pm on 26 May 2021), using a program the Applicant does not have training for or access to, ahead of a day (28 May 2021) when she was out of the office sick.
14. The Applicant did not agree that insulting language was never used. As in the Applicant’s earlier submissions, she has provided multiple examples of the same. The [Employer’s] suggestion that there has been no “undue criticism” is for reasons such as the above denied.
15. When each of the Applicant’s concerns is considered in totality, there is a clear pattern of bullying of her by Ms R.”[81]
Questions of credibility
In support of her assertions as to bullying, the Applicant submits that Ms R during cross-examination was evasive, and gave illogical and/or ambiguous answers. According to the Applicant, these answers support the Applicant’s claims as to Ms R being a poor communicator, with a less than “superior” knowledge of processes, systems and tasks.[82]
For her part, Ms R makes a strong and comprehensive attack on the Applicant’s credibility and submits that the Applicant during cross-examination was untruthful (even “overtly dishonest”), evasive, and failed to make basic concessions in relation to straight-forward propositions. In other words, various aspects of the Applicant’s evidence are not to be explained by simply saying that she was confused or otherwise mistaken in her recollection or understanding.[83]
I did not form the impression that Ms R (during cross-examination) was evasive, or otherwise provided answers that were intentionally ambiguous. I say this by reference to my observations of her demeanour, the manner in which she answered questions, and the content of her answers. Whilst Ms R gave her evidence via video-conference, I was clearly able to observe her giving evidence. My overall impression of Ms R was that she did her best to answer questions in a timely and straightforward fashion to the best of her recollection, and in a responsive manner to the question/s that was asked of her. She was equally prepared to make concessions (in part or in whole) as to propositions that were put to her that were against her interests.[84]
In contrast, I consider that many of the Applicant’s responses to questions during cross-examination were evasive, ambiguous, or plain non-responsive, in that she:
a) included information in her answers that had no connection, let alone a direct connection, to her role, or the Assurance Team;
b) refused to provide straightforward answers to straightforward questions;
c) did not listen to questions;
d) made generalised statements that were unrelated to the question/s asked; and
e) was completely unwilling to acknowledge any error or any wrong-doing on her part. Indeed, when confronted with simple propositions about inaccuracies or errors she was alleged to have committed, or a strategic omission she was alleged to have made, she either:
i)did not answer the question;
ii)provided an answer to a question that was not asked; or
iii)feigned confusion as to the (very straightforward) question or proposition that had been put to her.[85]
In somewhat of a tacit acknowledgement of the Applicant’s performance during cross-examination, the Applicant submits that any concerns as to her evidence ought be explained away by factors such as English not being her first language, anxiety, emotion, unclear questions being asked, the Applicant’s genuine inability to recall information, her desire to provide fulsome answers, time pressure to answer questions, and the length of overall time she was under cross-examination.[86]
I understand the foregoing submission by the Applicant to be that care should be taken in whatever inferences might be drawn from the Applicant’s performance and answers under cross-examination. Whilst that is accepted, I would equally say that what is relevant in understanding the Applicant’s evidence is not whether English is her second, fourth, or seventh language, but her proficiency and competence in English. In this regard, there is nothing in the Applicant’s written evidence to suggest that she has difficulty with comprehending English, or expressing herself in English (at least not to the extent that I might identify any difficulties with her evidence that would tend towards it being considered in such a light). The Applicant has a Degree of Practising Accounting from Monash University (2006), and over 12 years’ experience in HR/Payroll functions. I therefore do not accept the Applicant’s submission to the effect that in understanding her evidence, I should make an allowance for any so-called English linguistic deficiencies.[87]
It is unnecessary in these proceedings for me to make any general finding as to the Applicant being untruthful or dishonest. Rather, the approach I will adopt is to determine whether the evidence supports, or does not support, a relevant finding by reference to the various allegations made by the Applicant in these proceedings. In doing this, I will consider the evidence by reference to factors such as plausibility, rationality, consistency, and corroboration (including between witness statement/s and cross-examination).
Consideration - Ops Task – Alleged unreasonable timeline and refusal to provide SQL training[88]
The Ops Task was allocated to the Applicant on 12 May 2021, with a deadline for completion by 28 May 2021. The Applicant was not allocated any other tasks to perform between 12 and 28 May 2021.[89] The deadline for completion (28 May 2021) was a deadline by which the Assurance Team needed to provide the completed Ops Task for provision to the client. In other words, the Applicant needed to provide her calculations in respect of the Ops Task prior to 28 May 2021 so that they could be peer reviewed (checked) by another member of the Assurance Team (in this case, Ms R) prior to delivery up to the client (or another team within GAF or the Employer’s business).
By way of email from Ms R dated 12 May 2021, the Applicant was provided with “everything [information and data] I’ve received so far” and asked to “have a read and we’ll discuss tomorrow morning”.[90] In terms of the information and data provided to the Applicant, it encompassed business roster data, not actual payroll data. Further information in relation to codes and assumptions for the calculations was provided to the Applicant post 12 May 2021.[91]
On 13 May 2021, the Applicant raised with Ms R that she did not consider that she had all necessary information and data to complete the Ops Task. The Applicant considered that historical (actual) payroll data was required to complete the task. Ms R (relevantly) responded to the Applicant’s request for historical payroll data by advising the Applicant that:
a) historical payroll data is not required for the Ops Task to be undertaken or completed;[92]
b) the business roster data that has been provided to the Applicant is to be taken, for the purposes of undertaking and completing the Ops Task, as true and accurate; and
c) what the Applicant is being asked to do is what the Assurance Team has been asked to do, including meeting the deadline set for 28 May 2021. In other words, the Assurance Team had been asked to complete the Ops Task along certain parameters, and the Applicant as a member of the Assurance Team, was required to complete the task for and on behalf of the Assurance Team (subject to peer review).
It became apparent by 25/26 May 2021 that the Applicant would not have the Ops Task calculations completed in time for peer review prior to 28 May 2021.[93] Indeed, in relation to the little data that the Applicant had prepared as of 26 May 2021, some of it was incomplete (albeit this was corrected by the Applicant that day).
On 26 May 2021, another Assurance Team member was asked to assist the Applicant in completing the calculations required for the Ops Task. This Assurance Team member ended up taking over the Ops Task, completing it himself, and providing it to Ms R for peer review. Of the portion of the data from the Applicant that had been used by the other Assurance Team member, there were missing and duplicated dates.
In summary, the Applicant did not complete the Ops Task as requested by Ms R within the timeframe that had been allocated to her, and the work that she did perform in relation to the Ops Task was not accurate or otherwise reliable, and required further remediation.
The Applicant does not deny that she failed to meet the Ops Task deadline, or that the work (calculations) she did provide were less than satisfactory. Rather, the Applicant essentially makes a plea in mitigation of her shortcomings, and says that the timeframe between 12 and 28 May 2021 was unreasonable, thus affecting her performance, and her ability to deliver the task. In this regard, the Applicant points to the complexity of the Ops Task and the volume of data to be analysed, the provision of incomplete information, the sporadic and delayed provision of details required for completion of the Ops Task, the failure to provide historical (actual) payroll data (despite repeated requests for same by the Applicant), and the Applicant’s lack of training in SQL.
In determining whether the timeframe was unreasonable for the reasons stated by the Applicant, I make the findings that follow from the evidence.
Firstly, it is not disputed by the Applicant that the other Assurance Team member that completed the Ops Task for peer review within less than 24 hours of being allocated the task, is in the same team, grade and role as the Applicant. In my view, there is no substantive basis upon which the Applicant’s performance in relation to the Ops Task ought not be compared to this other Assurance Team member.[94] I form this view irrespective of the fact that the Applicant was using Excel, and the other Team member was using SQL, to undertake the Ops Task (see further at paragraph [88] below).[95]
Secondly, it is not my role, and nor am I in a position, to determine how ‘complex’ the Ops Task was (or was not). In my view, it follows that genuine concerns as to an employee’s performance will arise if two employees in the same team, with the same grade and role, are both given a particular task based upon the same instructions, information, and data, and one delivers the task within a very narrow timeframe (as per instructions), and the other fails to deliver at all (even allowing for what might be raised as, and assumed to be, genuine issues or concerns with data). Indeed, based upon comparisons alone, I do not accept that it can be said that Ms R’s concerns around the Applicant’s failure to deliver the Ops Task within the required timeframe, and/or to an appropriate standard, are lacking any evident or intelligible justification.
Thirdly, despite her repeated requests for historical payroll data, the Applicant was advised by Ms R that such data is not required to complete the Ops Task. The other Assurance Team member, that completed the Ops Task, did not rely upon historical payroll data. Mr C concurs with Ms R that historical payroll data was not required to undertake or complete the Ops Task.[96] On the evidence, I do not accept that the failure to provide the Applicant with historical payroll data to undertake or complete the Ops Task gave rise to the timeframe set for the Applicant to deliver the Ops Task lacking any evident and intelligible justification.
Fourthly, the assertion that the Applicant’s lack of access to or training in SQL made the deadline for the Ops Task unreasonable, is not compelling. The undisputed evidence is that the Applicant does not even know how to use SQL,[97] that SQL is not used by the Assurance Team, and that Assurance Team members are employed on the basis that they have the ability to analyse employee entitlements using Excel.[98] In my view, the concerns by Ms R around the Applicant’s failure to deliver the Ops Task within the required timeframe, and/or to an appropriate standard, are not lacking any evident or intelligible justification, simply because the other Assurance Team member (who completed the Ops Task) obtained competency in SQL whilst working in another team at the Employer, and used SQL when undertaking the Ops Task. I make the same finding in relation to the assertion by the Applicant that the failure by Ms R to respond positively to the request by the Applicant for training in SQL was unreasonable. As submitted by Ms R, it is up to an employer as to what training will or will not be offered or provided to a relevant employee(s). Further, given that the Assurance Team does not as a general rule use SQL, and Assurance Team employees are expected to be able to use Excel to perform their tasks and projects, there are clear and reasonable business grounds for the refusal to provide SQL training to the Applicant.
For completeness, I reject the Applicant’s assertions that the Ops Task deadline was unreasonable:
a) because the Ops Task had not been fully finalised as of 14 September 2021. I do not accept that any evidence supports such a conclusion. Rather, the clear and unambiguous evidence of both Ms R and Mr C is that as far as the Assurance Team were concerned, the Ops Task finished by the set deadline of 28 May 2021; or
b) having regard to the Employer’s statutory obligation to apply due diligence in order to correctly calculate and pay employee entitlements in accordance with applicable enterprise agreements. In my view, this submission appears to totally misunderstand the nature and purpose of the Ops Task (i.e. to provide calculations to a client), and fails to acknowledge the structure of the Employer’s GAF, including the Assurance Team’s purpose and place within that structure.
Consideration - Alleged unreasonable treatment of Applicant in relation to personal leave and leave information requests[99]
The Applicant alleges that Ms R changed her approach towards the Applicant after she took a personal leave day on 28 May 2021 (i.e. the deadline date for the Ops Task). In this regard, the Applicant says that she was excluded from further communications in relation to the Ops Task, and that Ms R did not respond to her calls or text message about being unable to login to a remote team meeting on 31 May 2021.
Ms R’s evidence is that further communication with the Applicant post 28 May 2021 in relation to the Ops Task ceased because the Ops Task was completed and delivered. Whilst there was some residual work for the client, that did not involve the Applicant (who had already been allocated her next task to undertake). I am not aware of any basis upon which I ought not accept Ms R’s evidence that she did not communicate with the Applicant in relation to the Ops Task as the task had been completed. Even if there was some follow-up in relation to the Ops Task from the client, it does not follow (from a reasonableness perspective) that the Applicant would need to be assigned to dealing with that work (or kept in the loop). This is especially so in circumstances where the Applicant was ultimately unable to complete the Ops Task, and it was taken over by another Assurance Team member. Ms R is the manager of the Assurance Team, hence, it would be wholly within her purview as to who she assigned to any follow-up work on the Ops Task, and who she did or did not keep in the communications loop on same.
Ms R admits that she did not respond to the Applicant’s two phone calls or her text message on 31 May 2021, and says that she does not remember why.[100] The assertion that Ms R acted unreasonably towards the Applicant because she failed to respond to the Applicant’s phone calls or text message on 31 May 2021, even in circumstances where Ms R previously promptly responded to phone calls and text messages from the Applicant, is not sustainable on the evidence before me. In short, I am not aware of any basis upon which I might make a finding in these proceedings as to the unreasonableness of Ms R by reference to her failure to respond to two phone calls and a text message on 31 May 2021.
The Applicant also says that she was not supported by Ms R in relation to her requests for leave options in July 2021.[101] In relation to this issue, Ms R gives the following evidence:
“111. In response to paragraphs 58 to 61, 63, 67 to 68 of [the Applicant’s] Statement I say that on 20 July 2021 [the Applicant] messaged me about what she was going through. A copy of the messages are attached to this statement and marked “RS-15”.
112. [the Applicant] enquired specifically about pandemic leave and whether it could be accessed. I advised [the Applicant] that I would look into the pandemic leave policy as I wasn’t sure what the policy allowed for. [the Applicant] then requested RDO’s for 21 July 2021 and 22 July 2021 which I approved. I then had a discussion with the IR Team on 22 July 2021 which informed the advice that I provided to [the Applicant] on 23 July 2021. A copy of this email is attached to this statement and marked “RS-16”.
113. As stated in this statement at paragraphs 27 to 28 and 31, I have never had an issue
with [the Applicant] accessing her leave. It was [the Applicant] who requested to use her RDOs. I took a couple of day to get back to [the Applicant] regarding pandemic leave, as I was not across that type of leave and needed to consult with the IR Team. I provided [the Applicant] with leave options in line with the policy as soon as I could.”[102]
In accepting the foregoing evidence of Ms R, I am not aware of any basis upon which I might make a finding in these proceedings as to the unreasonableness of Ms R by reference to her interactions with the Applicant concerning her requests for leave options, being leave options that were ultimately provided (and approved) to the Applicant within days of their request.[103] In reaching this conclusion, I accept the submissions of Ms R as a complete answer to any suggestions of unreasonable behaviour by Ms R on this issue.[104] Further, the Applicant accepted during cross-examination that Ms R, in dealing with the Applicant’s requests for leave, had at all times followed the Employer’s relevant policy and procedure.[105]
Consideration - Alleged insulting or offensive comment/s made by Ms R to the Applicant[106]
During a team meeting in June 2021, the Applicant alleges that Ms R said, “The E-Learnings just take two hours”.[107] According to the Applicant, she says she felt humiliated and embarrassed by the comment as it implied that she was lazy in front of the other persons present at the team meeting. Whilst Ms R does not recall making the comment, the context that the comment was made (if it was made at all), concerned arranging or scheduling staff time and workloads for the upcoming week.
The Applicant says that Ms R also made insulting or offensive comments to her around her struggling with caring and schooling responsibilities for her child, with words allegedly used such as “other colleagues are having home schooling but they are trying to cope themselves”.[108] These comments are said by the Applicant to have occurred around the time she was having discussions with Ms R in relation to leave options.
Having regard to the words that are alleged to have been used by Ms R (set out in the foregoing two paragraphs), and in the overall context that they were made, I do not accept that on any objective analysis such comments are capable of being classified as insulting or inappropriate.[109] I reject them as giving rise to any suggestion as to unreasonable behaviour on the part of Ms R.
Consideration - Alleged micromanagement of the Applicant by Ms R[110]
The Applicant says that because Ms R allocated her the ALL Task at 11.23am on 3 August 2021, and then sent her an email at 6.53pm that evening asking for an update, Ms R engaged in unreasonable micromanagement of the Applicant. I am not aware of any basis upon which I might make a finding in these proceedings as to the unreasonableness of Ms R by reference to her sending an email (in the evening) that requests an update on a task that had been allocated to the Applicant that morning. In my view, the email simply asks the Applicant if she has any updates on the task that had been allocated to her, in circumstances where Ms R would likely have assumed that the Applicant had had the opportunity to review some of the information and data related to the task, and might have some preliminary observations to make as to approach and timelines. This is especially so in circumstances where the timeline for the task was only one week, and the Applicant had previously not met her deadlines for the Career Break or the Ops Tasks, and had not provided Ms R with timely updates whilst she performed work on the Career Break Task (despite taking some seven weeks to compete same).
Consideration - Alleged undue criticism of the Applicant[111]
For essentially all of the same reasons that the Applicant advances as examples of unreasonable behaviour or bullying by Ms R, the Applicant says that she has been subjected to further bullying in the form of undue criticism during her PFR, and in placing her on an IPM.
I have already made findings, on the evidence before me, that none of the allegations made by the Applicant in these proceedings constitute bullying behaviour by Ms R. In doing so, I have already engaged with the same issues that the Applicant advances as to the reasons for alleged undue criticism. That said, it is also appropriate that I make the following additional findings and observations:
a) Despite Ms R’s position that the Applicant had not been meeting performance expectations, Ms R was willing to give the Applicant the benefit of the doubt at the PFR (given her short nine month tenure), and rate her as “meeting expectations”. In my view, it would have been reasonably open to Ms R to have not taken this approach given that she did not consider that the Applicant was in fact meeting expectations. This leans away from the various unsubstantiated and unproven allegations by the Applicant that Ms R, for want of a better term, ‘had it in’ for the Applicant post the completion of the Ops Task.
b) The IPM is not a disciplinary process. Rather, its evident purpose is to assist the Applicant to meet performance expectations. This was accepted by the Applicant as reasonable.[112]
c) The straightforward facts are that the Applicant has not met timelines for tasks that she has been assigned on three separate occasions. In a small team of only three employees, having one member of the team repeatedly fail to meet timelines is a situation that any business would need to address.
d) An objective reading of Ms R’s email of 26 July 2021,[113] having regard to the evidence, in my view, properly articulates Ms R’s genuine concerns with the Applicant’s performance. On the evidence, and in the events that have happened, I am unable to read anything unreasonable into the matters that Ms R raises with the Applicant in her 26 July 2021 email.[114]
e) Whilst the Applicant provides answers to Ms R’s concerns in her 27 July 2011 email response to Ms R,[115] they are not complete answers to the issues being raised with her. The same absence of complete answers applies to the Applicant’s email of 8 August 2021 to Ms R.[116]
f) The Applicant appears to misunderstand the role of the Assurance Team, both within GAF and the Employer.[117] She also appears to conflate this misunderstanding with that of her own role.[118] In this regard, much of the Applicant’s evidence floats around upon the premise that her role, and the work she performs in same, if not done perfectly, will result in underpayments to employees and/or breaches of workplace legislation. The Applicant then seemingly pivots from this premise to advance and justify assertions as to why the information she seeks, such as historical payroll data, is not only necessary to the completion of the task that she is undertaking, but essential (both practically and morally) to the outcomes of that task. However, the evidence discloses that the Applicant’s premise is flawed in fact, and that the Applicant simply does not understand, does not want to understand, or is incapable of being open to understanding, the true function of the Assurance Team (as part of GAF) and her role within same.[119]
g) One glaringly apparent issue with the Applicant, that permeates her attitude and approach to her work and these proceedings, is her seemingly total inability to accept that she has any performance issues, or areas for improvement or further development. This is apparent in her communications with Ms R and Mr C,[120] in her Anti-Bullying Application (“I did not have any performance issues to go through the performance management program”), in her witness statements tendered in these proceedings, and when giving evidence before the Commission. The following examples illustrate some of the concerns:
i)the Applicant’s refusal to accept (at all) that her inclusion of an enterprise agreement clause in her witness statement, unrelated to the client that the Ops Task was being performed for, and thus unrelated to the calculations for the Ops Task, was inaccurate and erroneous.[121] Her explanation that it was provided as an exemplar clause “for all the audience to understand” compounds the concern.[122]
ii)the Applicant’s refusal to accept that she only had three missing codes for the Ops Task, despite her original witness statement evidence that she had 16 missing codes;[123]
iii)the Applicant’s refusal to accept that there were two employees missing in the calculations she initially provided to Ms R on 26 May 2021;[124]
iv)the Applicant’s refusal to acknowledge that her work on the Ops Task had been peer reviewed by Ms R, and/or provide any explanation for her failure to include this fact in her witness statement evidence;[125]
v)the Applicant’s failure to include in her witness statement that she missed the deadline for the ALL Task by six weeks;[126] and
vi)the Applicant’s refusal to acknowledge that she has difficulties in meeting deadlines.[127]
For the reasons set out in the foregoing paragraph, and for the same reasons that I have rejected the Applicant’s other claims of bullying against Ms R, I reject the Applicant’s assertions as to undue criticism during the PFR and IPM, and/or any suggestion that the commencing (and continuing) an IPM with the Applicant would be unreasonable (or lacking any evident or intelligible justification). In doing so, I endorse the observations of Sams DP in the case of Tanka Jang Karki[128]:
“In my opinion, it is not acceptable to use the stop bullying jurisdiction of this Commission as a shield or stalking horse, to prevent, delay or deflect justifiable disciplinary outcomes, or to claim that the disciplinary outcomes themselves are repeated unreasonable behaviour, constituting bullying. It demeans and undermines the important work of the Act’s stop bullying provisions to prevent workplace bullying. On one view, such conduct might be said to be perilously close to an abuse of process.”[129]
Disposition
Given that I have not found that Ms R has engaged in any bullying of the Applicant, I do not need to consider Ms R’s arguments under s.789FD(2) of the Act. I dismiss the Anti-Bullying Application. An order to this effect will be published contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
Ms Claire Roberts, of Counsel, instructed by Ms Sandra Marks, Harmers Workplace Lawyers, for the Applicant.
Ms Alice DeBoos, Managing Partner, Kingston Reid lawyers, for Ms R and the Employer.
[1] PR736759, 14 December 2021. Transcript, 7 December 2021, PN6-PN13. I subsequently reconsidered whether the order should be revoked or varied, however, having taken into account the further submissions of the parties, I have determined that the order should continue (see Applicant’s Submissions on de-identification dated 13 April 2022. Respondent’s submissions on de-identification dated 14 April 2022).
[2] As defined by s.789FD(3) of the Act.
[3] Permission for all parties to be legally represented was not opposed, and I granted permission pursuant to s.596(2)(a) of the Fair Work Act 2009 (Act). for all parties to be legally represented having regard to the complexity of the matter, the voluminous facts (many of which are disputed), the contested application of facts to relevant legal principles, along with my view as to the more efficient conduct of the hearing with the parties being legally represented.
[4] I note that on 10 September 2021, post the filing of this Application, the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 took effect which amended this provision to also encompass sexual harassment at work.
[5] [2015] FWC 774.
[6] Ibid, at [75].
[7] Re GC[2014] FWC 6988 at [47] (Hampton C), cited with approval in Blagojevic v AGL Macquarie Pty Ltd[2018] FWCFB 4174 at [15] (Ross J, Kovacic DP, Hampton C); Mac v Bank of Queensland Limited[2015] FWC 774 at [88] (Hatcher VP); Re SB (2014) 244 IR 127; [2014] FWC 2104 at [43] (Hampton C).
[8] Ibid.
[9] Re SB (2014) 244 IR 127; [2014] FWC 2104 at [41] (Hampton C), cited with approval in Blagojevic v AGL Macquarie Pty Ltd[2018] FWCFB 4174 at [17] (Ross J, Kovacic DP, Hampton C).
[10] Re GC[2014] FWC 6988 at [45] (Hampton C); Mac v Bank of Queensland Limited[2015] FWC 774 at [89] (Hatcher VP).
[11] Re SB (2014) 244 IR 127; [2014] FWC 2104 at [41] (Hampton C), cited in Mac v Bank of Queensland Limited[2015] FWC 774 at [89] (Hatcher VP).
[12] Ibid at [44] to [45].
[13] Bowker v DP World Melbourne Limited & Ors[2014] FWCFB 9227.
[14] [2019] FWCFB 2771, 289 IR 105.
[15] Ibid, at [29].
[16] Re SB (2014) 244 IR 127, at [47] to [54].
[17] [2018] FWCFB 4174.
[18] Ibid, at [19]-[23].
[19] (2015) 247 IR 274; [2015] FWC 774.
[20] Ibid, at [99].
[21] Exhibit A1, Applicant Statement, 1 November 2021, at [4]-[6].
[22] Ibid, Attachments A and B.
[23] Ibid, Attachment A.
[24] Ibid, Attachment B.
[25] Ibid, at [10].
[26] Ibid, at [19].
[27] Exhibit R2, Ms R Statement, at [1]-[2].
[28]Ibid, at [3]-[4].
[29]Ibid, at [5]-[7], and [9].
[30] Exhibit A1, Applicant Statement, 1 November 2021, at [20]-[27].
[31]Ibid, at [28]-[50].
[32]Ibid, at [51]-[53].
[33]Ibid, at [54]-[55].
[34]Ibid, at [56].
[35]Ibid, at [57]
[36] Ibid, at [57]-[65].
[37]Ibid, at [66(a)].
[38]Ibid, Attachment B1.
[39] Ibid.
[40] Ibid.
[41] Ibid.
[42] Ibid, Attachment C1.
[43] Ibid, at [70].
[44] Ibid, at [72].
[45] Ibid, at [79].
[46] Ibid, at [82]-[83].
[47] Ibid, at [84].
[48] Ibid, at Attachment J1.
[49] Ibid, at Attachment K1.
[50] Exhibit R2, Ms R Statement, at [101]-[105].
[51]Ibid, at [10]-[13].
[52]Ibid, at [10]-[16].
[53]Ibid, at [17]-[20].
[54] Ibid.
[55] Ibid.
[56] Ibid, at [20].
[57]Ibid, at [22].
[58]Ibid, at [23]-[27].
[59]Ibid, at [33]-[52].
[60] Ibid, at [53].
[61]Ibid, at [54]-[60].
[62] Ibid.
[63] Ibid.
[64] Ibid, at [64]-[65].
[65] Ibid.
[66] Ibid, at [61]-[63].
[67]Ibid, at [83]-[91].
[68] Ibid.
[69] Ibid.
[70] Ibid.
[71] Exhibit R1, Mr C Statement, at [44].
[72]Ibid, at [49].
[73]Ibid, at [57].
[74] Exhibit R3, Ms M Statement, at [7].
[75]Ibid, at Annexures, “Tm-3” to “TM-5”.
[76] Applicants Outline of Submissions dated 1 November 2021, pages 2-8.
[77] Respondent’s Outline of Submissions dated 15 November 2021, pages 8-13.
[78] Applicants Reply Submissions dated 22 November 2021, pages 1-7.
[79] Applicants Closing Submissions dated 12 January 2022, pages 2-8.
[80] Respondent’s Closing Submissions dated 21 January 2022, pages 1-10.
[81] Applicant’s Closing Submissions in Reply dated 28 January 2022, pages 1-3.
[82] Applicant’s Closing Submissions, 12 January 2022, at [19]-[28].
[83] Respondent’s Closing Submissions, 21 January 2022, at [2.1]-[3.4].
[84] Transcript, PN863, PN879-PN880.
[85] In respect of subparagraphs (a) to (d), see Transcript, PN158-PN162, PN175-PN187, PN214, PN221, PN247-PN265, PN273, PN280-PN281, PN296-PN307, PN333, PN344, PN352, PN361, PN412-PN419, PN449, and PN483.
[86] Applicant’s Closing Submissions, 12 January 2022, at [29], Applicant’s Closing Reply Submissions, 28 January 2022, at [4]-[5].
[87] Note, Transcript, PN526.
[88] Applicant’s Submissions, 1 November 2021, at [15]-[17], Note also Applicant’s Reply Submissions, 22 November 2021, at [13]-[23], and Applicant’s Closing Submissions, 12 January 2022, at [8]-[27].
[89] Transcript, PN361-PN365.
[90] Exhibit R2, Ms R Statement, Annexure “RS-1”. Transcript, PN901.
[91] Exhibit A1, Applicant’s Statement, Annexure “L”. Transcript, PN824-PN830.
[92] Transcript, PN834-PN838.
[93]Ibid, PN320-PN322.
[94] Exhibit R2, Ms R Statement, at “RS-3” and [23]-[27].
[95] See Exhibit R2, Ms R Statement, at [33].
[96] Exhibit R1, Mr C Statement, at [15], [19]-[20], and [32].
[97] Transcript, PN840.
[98] Exhibit R2, Ms R Statement, at [66]-[67]. Transcript, PN85. Exhibit R1, Mr C Statement, at [31]-[32], [66] and [68].
[99] Applicant’s Submissions, 1 November 2021, at [23]-[27], Note also Applicant’s Reply Submissions, 22 November 2021, at [25], [28]-[31], and Applicant’s Closing Submissions, 12 January 2022, at [31].
[100] Exhibit R2, Ms R Statement, at [109].
[101] Exhibit A1, Applicant’s Statement, at [58]-[63], and [67].
[102] Exhibit R2, Ms R Statement, at [111]-[113].
[103] Transcript, PN854.
[104] Respondent’s Submissions, 15 November 2021, at [36].
[105] Transcript, PN399-PN424.
[106] Applicant’s Submissions, 1 November 2021, at [28], Note also Applicant’s Reply Submissions, 22 November 2021, at [25], [28]-[31].
[107] Exhibit A1, Applicant’s Statement, at [56].
[108] Exhibit A1, Applicant’s Statement, at [66]-[67].
[109] Note, Transcript, PN482-PN525, PN705-PN706.
[110] Applicant’s Submissions, 1 November 2021, at [28], Note also Applicant’s Reply Submissions, 22 November 2021, at [25], [28]-[31].
[111] Applicant’s Submissions, 1 November 2021, at [22]-[24].
[112] Transcript, PN436-PN442, PN447 (“Yes, reasonable check-in on a regular basis good”); PN453-PN455.
[113] Exhibit R2, Ms R Statement, “RS-8”.
[114] Transcript, PN874-PN880.
[115] Exhibit R2, Ms R Statement, “RS-9”.
[116] Ibid, “RS-11”.
[117] Transcript, PN49-PN53, PN86-PN101. Exhibit R1, Mr C Statement, at [2]-[3], [11], [15], and [19]-[20].
[118] Ibid.
[119] Transcript, PN810-PN816.
[120] Exhibit R1, Mr C Statement, at [28]-[29].
[121] Transcript, PN108-PN126. Exhibit A2, Applicant Reply Statement, at [14].
[122] Transcript, PN675.
[123] Ibid, PN275-PN289.
[124] Ibid, PN332-PN347, PN354.
[125] Ibid, PN348-PN353, PN355-PN360.
[126] Ibid, PN372-PN374.
[127] Ibid, PN445.
[128] [2019] FWC 3147.
[129] Ibid, at [66]. See also Item 7.1 of Anti-Bullying Application filed by the Applicant: “Remove me from the management program, because they might misrepresent my performance again and I am in a risk to be dismissed”.
Printed by authority of the Commonwealth Government Printer
<PR743036>
1
0
0