[2020] FWC 540

FAIR WORK COMMISSION

DECISION

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

Paula Taylor
(AB2018/558)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 4 FEBRUARY 2020

Application for an FWC order to stop bullying – application by company director to vary or supplement orders – further bullying found – significant practical necessity – order varied

[1] On 30 September 2019 Mrs Charmaine Hoad (Mrs Hoad), a director of Hoad Water Cartage Pty Ltd (Hoad Water Cartage, the employer or the business), applied to the Fair Work Commission (the Commission) to vary or supplement an Order made on 21 March 2019 in antibullying matter AB2018/558 (the primary application).

[2] This decision concerns Mrs Hoad’s application to vary (the variation application).

Background

[3] The primary application was filed on 11 September 2018 by Paula Taylor (Mrs Taylor) under section 789FC of the Fair Work Act 2009(FW Act) seeking an order to stop bullying 1. The application identified two respondents: Mrs Taylor’s employer Hoad Water Cartage and Mr (William) Mark Hoad (Mr Hoad).

[4] Both Mr Hoad and Mrs Hoad separately responded to the primary application and appeared in proceedings. Mrs Hoad supported the making of orders against Mr Hoad, whereas Mr Hoad opposed the application.

[5] By decision dated 21 March 2019 I found Mrs Taylor to have been subject to workplace bullying and that a risk of future bullying at work existed (the Decision). 2 I made orders consequent on the Decision.3

[6] The Order included the following: 4

“I grant Paula Louise Taylor, William Mark Hoad, Charmaine Joy Hoad and Hoad Water Cartage Pty Ltd (the parties) liberty to apply on short but reasonable notice should it be considered necessary to vary or supplement this Order in light of changed circumstances, significant practical necessity, changes to the Court Order or agreement between the parties.”

[7] Also relevant by way of background are separate antibullying proceedings brought by Mrs Hoad in her own right, also citing Mr Hoad as a named person. 5 For reasons published on 29 March 2019 I declined to hear Mrs Hoad’s application on the merits having found a binding settlement agreement to exist.6 By further decision dated 13 November 2019 I declined a request by Mrs Hoad to re-open her anti-bullying application.7

The variation application

[8] This variation application is not brought by the applicant to the primary antibullying proceedings. It is brought by a co-director of the named employer.

[9] On 21 October 2019 I issued directions concerning the variation application. It was set down for hearing on 11 December 2019. Mrs Hoad filed materials as directed, as did Mr Hoad and Mrs Taylor.

[10] On 18 November 2019 Mr Hoad sought permission to be represented by a legal practitioner at the hearing of the variation application. 8 Mr Hoad’s request was opposed by Mrs Hoad and Mrs Taylor. By decision of 29 November 2019 I granted Mr Hoad permission on conditions,9 and issued further directions.

[11] On 4 December 2019 Mrs Hoad sought permission to be legally represented. By decision of 6 December 2019 10 I granted Mrs Hoad comparable permission to that of Mr Hoad. I granted representation rights on the basis that it was likely to contribute to the efficient conduct of proceedings and minimise the level of ill-feeling between Mr and Mrs Hoad.

[12] Mrs Taylor remained self-represented on the variation application, as she had in the primary proceedings.

[13] In advance of the hearing Mr Earls for Mrs Hoad sought an adjournment on the basis that certain employees of Hoad Water Cartage who had been referred to in evidence in the primary proceedings had not been notified of the variation proceedings but could be affected by a variation order. For reasons outlined at the directions hearing on 6 December 2019 I refused the adjournment request.

[14] I heard the variation application in open court on 11 December 2019.

[15] I heard evidence from Mrs Hoad and Mrs Taylor. Mr Hoad did not give evidence.

[16] Although the evidence of Mrs Hoad was laced with opinion, her general narrative of facts was broadly reliable though must be approached with a degree of caution given the level of subjectivity and opinion borne of matrimonial acrimony.

[17] The evidence of Mrs Taylor, although at times delivered with emotion and a sense of frustration, was (as in the primary proceeding) generally clear and with only limited gloss. I consider her a reliable witness.

[18] I reserved my decision which I now deliver.

[19] In determining this matter I take account the evidence (oral and documentary) and submissions before me. 11 I also have regard to the evidence and findings made on the primary application. Also of note are certain findings and conclusions in my 13 November 2019 decision on Mrs Hoad’s re-opening application, which I drew to the attention of the parties during these proceedings.

The Facts

[20] Facts directly relevant to the variation application are those which have arisen since the Decision. I make findings later in this decision when considering specific grounds advanced by Mrs Hoad.

[21] Certain other facts provide context and background, as follows.

[22] Hoad Water Cartage (together with an associated business, Andy’s Water Transport) is operated by former husband and wife Mr Hoad and Mrs Hoad, each a co-director.

[23] Mrs Taylor was and continues to be employed by Hoad Water Cartage Pty Ltd on a part time basis as Finance and Administration Manager and Human Resources Manager.

[24] Mrs Taylor had an historic friendship with Mrs and Mr Hoad, particularly Mrs Hoad. She commenced work in the business in April 2016 at the suggestion of Mr Hoad.

[25] Mr Hoad is Managing Director of the business. Mrs Hoad is Director of Finance.

[26] During 2017 and since, Mrs Taylor’s work environment deteriorated.

[27] Mrs Taylor’s antibullying application, and this variation application, was dealt with by the Commission in the shadow of an acrimonious matrimonial dispute between Mr and Mrs Hoad which manifest in November 2017. That dispute is before the Family Court of Australia, having been transferred in August 2019 from the Federal Circuit Court of Australia (the Court). 12

[28] Upon the marriage breakdown, and to the present day, in-person communication on business matters between Mr Hoad and Mrs Taylor ceased. Each communicates only by telephone or email and more recently, only by email.

[29] The Court proceedings between Mr and Mrs Hoad involve, in part, the disposition of property jointly held including the business of Hoad Water Cartage (and its associated assets). The continuing employment of persons in the business (including Mrs Taylor) is in part dependant on the outcome of the Court proceeding.

[30] The Court proceeding, which was originally scheduled for trial in August 2019 was adjourned by consent to a date in 2020.

[31] As an interim measure, on 21 May 2018 a Consent Order was made by the Court under the Family Law Act 1975 (Cth). The Court Order was an interim order pending resolution of the property dispute between Mr Hoad and Mrs Hoad. The Court Order was in evidence before the Commission in the primary proceedings. Its terms had a bearing on the Decision and Order of the Commission on the primary application.

[32] The Court Order remains in place.

[33] Under the terms of the Court Order, Mr Hoad retained his role as Managing Director and Mrs Hoad as Director of Finance.

[34] The intention of the parties to the Court Order was (as an interim arrangement) that Mrs Hoad would manage, oversee and direct those employees undertaking finance, administration and human resources functions whilst Mr Hoad would manage, oversee and direct employees undertaking operations (logistics, sales, driving). 13

[35] The Decision and Order of the Commission, amongst other matters, specified reporting obligations for Mrs Taylor. Under the Order, Mrs Taylor had exclusive reporting obligations to Mrs Hoad. Mr Hoad was, by Order, precluded from directly or indirectly instructing or directing Mrs Taylor though was able to make reasonable business requests of Mrs Taylor to which Mrs Taylor could respond directly or through the agency of Mrs Hoad. 14

The Order

[36] The Order which Mrs Hoad seeks to vary is at Attachment A to this decision.

Submissions

[37] Mrs Hoad made written submissions prior to being represented and filed a Draft Order (together with oral submissions) once represented.

[38] In summary, Mrs Hoad advanced the following grounds:

1. Since the Order, Mr Hoad has engaged in further bullying conduct of Mrs Taylor including:

• by compromising Mrs Taylor’s Workcover (Return to Work) claim;

• by denying Mrs Hoad access to business funds, including funds to appoint a human resource consultant that would relieve workplace pressure on Mrs Taylor, and by failing to communicate appropriately; and

• by failing to require operational staff to appropriately value Mrs Taylor’s role in the business.

2. Since the Order, an inspector of SafeWork SA has recommended that the terms of the Decision and Order be clarified to minimise workplace misunderstanding, and there is confusion amongst managers about the Commission Order.

[39] Mrs Hoad seeks five substantive variations to the Order together with consequential variations.

[40] Mrs Taylor made written and oral submissions. Mrs Taylor submitted that bullying by Mr Hoad had not ceased but has taken more subtle forms including via his lawyers. She considers herself at further risk of bullying. Mrs Taylor says that past and continuing bullying of her has caused and continues to cause anxiety, stress, sleeplessness, headaches and is materially impacting her quality of life.

[41] Mrs Taylor’s evidence was that she has tried to “resolve this matter kindly”, is concerned whether she can sustain the hours she is now working, and considers it “unfortunate” but necessary to have the matter back before the Commission. 15

[42] Mrs Taylor supports variations to the Order in principle but does not support all of the specific proposals by Mrs Hoad. In particular, Mrs Taylor is concerned that any order which would involve a broader group of employees may make her workplace environment more uncomfortable.

[43] Mr Hoad made written and oral submissions once represented. He denies any bullying conduct since 21 March 2019. He considers the variation application to be motivated by the matrimonial dispute and a further attempt by Mrs Hoad to use the forum of the Commission to ventilate her grievances and opinions about her former husband.

[44] Mr Hoad submitted that the Decision and Order had been calibrated by the Commission to deal with the risk of future bullying, and that no variation was warranted. Mr Hoad also submitted that he had taken the Commission’s findings and conclusions on board and was implementing active steps to modify workplace conduct and communication (including through training programmes) to avoid the actuality or appearance of bullying conduct.

[45] Finally, Mr Hoad submitted that he has mandatory duties concerning the health, safety and welfare of employees including Mrs Taylor under the Work Health and Safety Act 2012 (SA) and the Return to Work Act 2014 (SA). He says that any variation to the Order which limits his capacity to meet those obligations would be unfair and may be unlawful.

Consideration

[46] The Commission’s Decision and Order of 21 March 2019 were substantive and considered. They followed an extensive arbitration that in turn followed multiple attempts at conciliation. The Decision occupied some 199 paragraphs and the Order some 20 Items.

[47] The Decision found that Mrs Taylor had been bullied at work by Mr Hoad and that, absent an Order, there was a risk that Mrs Taylor would continue to be so bullied.

[48] The bullying conduct found was serious, multifaceted and had occurred over a prolonged period. It involved rudeness and abuse; exposure to private vitriol; exclusionary behaviour; unreasonable work demands and scrutiny; and unreasonable threats to dismiss. 16

[49] I concluded that the bullying conduct was driven by a lack of objectivity to the near impossible position Mr and Mrs Hoad placed Mrs Taylor in light of their matrimonial conflict. Mrs Taylor had become collateral damage in the conflict, and Mr Hoad was indifferent to that consequence. 17

[50] Relevant for present purposes, I made the following finding:

“There is a real risk that Mr Hoad will continue to take unreasonable management action against Mrs Taylor, and do so in an unreasonable manner either directly or through the agency of third parties such as legal practitioners.” 18

[51] The Order was made for the sole statutory purpose of preventing Mrs Taylor from being further bullied at work. 19 Relevantly, the Order was variously directed at Mr Hoad, Mrs Hoad and Hoad Water Cartage. The primary subject of the Order was Mr Hoad though it also extended to conduct via the agency of his lawyers (Item B) or other external agent (Item F). The Order imposed constraints on Mr Hoad with respect to his interaction with Mrs Taylor. It traversed six subject matters, being:

• Disciplinary matters and termination;

• Direction and reporting;

• Communication and interaction;

• Role and responsibilities;

• Service; and

• Date of operation.

[52] The Decision and Order specified circumstances in which Mrs Taylor, Mrs Hoad or Mr Hoad would be granted permission to vary or supplement the Order. Those circumstances were threefold:

• changed circumstances;

• significant practical necessity; or

• agreement between the parties.

[53] I consider these criteria to remain the appropriate measures against which to consider this application to vary.

[54] Given the absence of agreement, Mrs Hoad asserts changed circumstances and significant practical necessity to ground this application. In this respect, Mrs Hoad, being the applicant for variation, carries the onus to establish the evidentiary basis and grounds on which she contends the Order should be varied.

[55] Whilst the Decision and Order was substantive and considered, Mrs Hoad does not bear a heightened onus beyond that which applied to Mrs Taylor at first instance. This is an application to vary or supplement an Order in circumstances where the primary decision contemplated variation or supplementation if certain conditions are met, and held the application open for that purpose. It is not an application for reopening of a matter which had been dismissed, discontinued or disposed of to finality.

[56] Equally however, this is not a rehearing of the primary proceeding, nor an appeal from the Decision or Order. The findings and conclusions made at first instance stand. I note that all persons appearing (including the applicant for variation, Mrs Hoad) had standing to appeal my Decision or Order but elected not to do so. In that sense neither Mrs Taylor, Mr Hoad or Mrs Hoad considered the Decision and Order to be wrong or inadequate (at least not to the appellate standard). Indeed, none put that submission to me on the variation application.

[57] Further, whilst conduct of relevant persons since the Decision and Order is relevant, these are not enforcement proceedings.

[58] I now turn to consider the grounds advanced by Mrs Hoad.

Since the Order, Mr Hoad has compromised Mrs Taylor’s Workcover (Return to Work) claim

[59] In the Decision I found that in December 2018 Mrs Taylor suffered a work-induced anxiety attack and was placed by her doctor on light duties. Since that time she has had an active WorkCover (Return to Work) claim under the South Australian Return to Work Act 2014.

[60] The light duties were about 15 hours per week. In mid-2019 Mrs Taylor resumed working more regular hours (about 30 per week).

[61] Mrs Hoad alleges that since the Decision, in April 2019, Mr Hoad’s lawyers unreasonably contacted the return to work consultant managing Mrs Taylor’s claim and forced the cancellation of a workplace mediation meeting. Mrs Hoad says this was bullying conduct as the mediation meeting was cancelled without Mrs Taylor’s knowledge or consent, causing Mrs Taylor stress which impeded her return to work.

[62] The evidence establishes that Mr Hoad’s lawyers sent a letter dated 8 April 2019 which enclosed documents for the information of the return to work consultant (Gallagher Bassett Services). 20 The context was that, at Mrs Hoad’s request, the consultant had scheduled a non-compulsory workplace mediation between two employees of Hoad Water Cartage (who worked under Mr Hoad) to assist Mrs Taylor’s transition back to work (“to clear the air with my work colleagues” according to Mrs Taylor21). Mrs Hoad believed the meeting to be compulsory and (by email) advised Mr Hoad and the employees accordingly. Mr Hoad was approached by the employees who (it was alleged, for their own health reasons) were anxious about attending and did not want to deal with Mrs Hoad or Mrs Taylor. Mr Hoad instructed his solicitors to communicate with the consultant. The solicitors advised:

“The main issue for Mr Hoad is the misleading information contained in the emails in that the mediations are compulsory.”

[63] The consultant responded to Mr Hoad’s solicitors by email of 8 April 2019: 22

“I would like to confirm that mediation in this instance is not compulsory…I will not be actioning the request for Mrs Taylor to cease all communication with her co-workers or with Mrs Hoad. It is clear within the decision from Fairwork she is to report to Mrs Hoad directly. It is not my role to dictate who Mrs Taylor can communicate with when it impacts her working role…”

[64] I do not consider it bullying conduct by Mr Hoad to have asked his lawyers to send this communication. Mr Hoad was taking advice from his lawyers on Mrs Taylor’s claim. As Managing Director, he was entitled to. Whilst communication between Mr Hoad’s lawyers and Mrs Taylor would be of a different character given my findings in the Decision, this was a communication by Mr Hoad’s lawyers to an independently appointed consultant, not to Mrs Taylor.

[65] The evidence establishes that Mrs Hoad was operating on a misunderstanding about whether the mediation was compulsory. Whilst Mrs Taylor was understandably upset at its cancellation and Mr Hoad’s lack of support for the mediation, it was (according to the consultant) non-compulsory. It was not unreasonable for Mr Hoad to seek clarification from the consultant.

[66] However, I consider it to have been unreasonable for Mr Hoad to have offered counselling support to one of the two operations staff but to not have offered comparable support to Mrs Taylor. In the context of my findings on the primary application, differential conduct of this type was bullying behaviour. This Mrs Taylor noted in her email to Mr and Mrs Hoad on 1 May 2019: 23

“I have again been discriminated and bullied by the way this has been handled, with no consideration by Mark towards me, only his staff (male staff).”

[67] I do not have sufficient evidence before me to conclude (as alleged by Mrs Hoad) that it was Mr Hoad or persons acting on his behalf who wanted Mrs Taylor to cease all contact with the two employees or other persons on the operations side of the business. Were this the case I would consider it further evidence of bullying as it would have been unreasonable and inconsistent with the Decision and Order. 24 I did not hear from Gallagher Bassett Services as to the “request’ it says was made, and neither Mr Hoad nor the two employees gave evidence. Mrs Taylor’s evidence was that such a suggestion upset her, and in my view reasonably so. However, neither Mrs Taylor nor Mrs Hoad could lead evidence as to the role Mr Hoad played, if any, in any such request.

[68] A separate allegation made by Mrs Hoad is that on 26 August 2019 Mr Hoad discussed with the return to work consultant the potential dismissal of Mrs Taylor if she was unable to return to full work duties. Mrs Hoad says this was bullying conduct and a breach of Item A of the Order that Mr Hoad not take any action to discipline, terminate or threaten to terminate Mrs Taylor’s employment.

[69] Neither Mrs Hoad nor Mrs Taylor were a party to the alleged conversation. It was a conversation by telephone between Mr Hoad and a Mrs Smith of Gallagher Bassett Services. Neither gave evidence before me.

[70] The evidence of this phone call is hearsay. Mrs Hoad gave evidence of what Mrs Smith recounted to her had been said, as did Mrs Taylor. 25 Their evidence is supported by the contents of an email sent by Mrs Smith to Mrs Hoad six days later. The email said:26

[71] Mrs Smith sent the email in response to an email from Mrs Hoad earlier that day: 27

[72] Based on Mrs Hoad’s evidence, which I accept on this point, the emails are evidence of communication sent and received by Mrs Hoad. However they are not direct evidence of the content of the conversation between Mr Hoad and Mrs Smith. That remains hearsay.

[73] Mr Hoad, through his counsel, agreed there had been a brief conversation in which Mr Hoad sought an update and that there may have been a reference by Mr Hoad to the hypothetical circumstance of moving Mrs Taylor should she not be able to resume full duties:

“Mr Hoad does not accept that what he did when contacting Return to Work was to get Mrs Taylor terminated. He admits that he made the conversation with Return to Work and it was a query, because she was not working full hours, as to whether if she couldn’t make full hours whether she would still remain in employment within that company.” 28

[74] However Mr Hoad claims that the conversation has been misconstrued by Mrs Hoad and possibly by Mrs Smith as Mr Hoad, through his counsel, says he was raising a hypothetical and, in any event, not referring to Mrs Taylor being dismissed (simply moved into a different role):

“Mr Hoad doesn’t accept the blush that’s been given to what that conversation says…It will be Mr Hoad’s position that was entirely proper.” 29

[75] During the hearing an opportunity was provided to Mrs Hoad, Mrs Taylor and Mr Hoad to call Mrs Smith, and for Mr Hoad to give evidence on the conversation. Mrs Smith was not called. Mr Hoad sought leave to give evidence on the conversation at a late stage of the hearing, but following my ruling that if leave were granted I would also grant leave for Mrs Hoad to call Mrs Smith at that late stage, Mr Hoad withdrew his request for leave to give evidence. 30

[76] Mr Earls for Mrs Hoad submitted that I should draw an adverse inference against Mr Hoad (of the Brown v Dunn type 31). I do draw the inference that any evidence that would have been given by Mr Hoad on the conversation would not have been helpful to his contention that the conversation was not as portrayed by Mrs Smith in her email or was misunderstood. However, the rule in Brown v Dunn is a procedural rule of fairness; it does not establish facts that are not otherwise established to the required standard of proof.

[77] I am left with the hearsay evidence of Mrs Hoad (oral and documentary) and Mrs Taylor (oral) and the concession made by Mr Hoad that a conversation, albeit one misrepresented by Mrs Hoad and Mrs Taylor, occurred. I have admitted the email exchange between Mrs Hoad and Mrs Smith into evidence, as well as the oral evidence of Mrs Hoad and Mrs Taylor on what Mrs Smith reported to them. I accord that evidence an appropriate but low level of weight, as it remains hearsay. I consider that evidence in the context of my other findings in this variation proceeding, and in the Decision. A fact may be proved by inference if according to common experience it is the more probable inference. 32 Given the intimation made by Mr Hoad, I conclude that it is plausible that Mr Hoad communicated with Mrs Smith in the terms set out in Mrs Smith’s email to Mrs Hoad of 26 August 2019; that is, that on 20 August 2019 Mr Hoad said words to the effect that he “felt the claim was not progressing and that we should look at moving Paula to new employment”.

[78] The words used by Mr Hoad, as recorded by Mrs Smith in her email of 26 August 2019 do not expressly refer to Mrs Taylor being moved outside of the businesses jointly operated by Mr and Mrs Hoad, and into the employ of a completely unrelated employer. It is likely, indeed plausible, that Mrs Hoad and Mrs Taylor placed such an interpretation on the words used. However, the reference to “new employment” is ambiguous in that it could be such a reference, whilst it could also be a reference to a revised job in Hoad Water Cartage Pty Ltd or to the same or a revised job in one of the associated companies operated by Mr or Mrs Hoad.

[79] It is sufficient to deal with this issue on the basis of the intimation made by Mr Hoad. Even if Mr Hoad was presenting this as a hypothetical or thinking aloud, as suggested, it was conduct which contemplated a change in Mrs Taylor’s current role if not her employment. The Decision of 21 March 2019 was predicated on the proposition that Mrs Hoad, not Mr Hoad, would have the say on matters relating to the role, responsibilities and employment security of Mrs Taylor. 33

[80] In broaching the subject with Mrs Smith, Mr Hoad was walking on thin ice. In a benign context, a Managing Director broaching such a subject with a return to work consultant would be reasonable management action. However, the circumstances were not benign. The contact (even of the character advanced by Mr Hoad) was made in the context of a bullying claim that remained live and had been found to have been sustained, and a Decision and Order of the Commission which constrained Mr Hoad’s conduct concerning Mrs Taylor’s employment role, responsibilities and employment security. It was reasonable for Mrs Taylor to feel troubled by the contemplation that she could be moved at Mr Hoad’s instigation. It was not reasonable management action.

[81] This conclusion weighs in favour of a variation to the Order.

Since the Order, Mr Hoad has denied Mrs Hoad access to business funds, including funds to appoint a human resource consultant, and has failed to communicate appropriately

[82] In the Decision I found some past work demands made by Mr Hoad of Mrs Taylor to have been excessive and constituted bullying behaviour. 34

[83] In her evidence Mrs Hoad claimed that Mr Hoad has since denied Mrs Hoad access to funds to appoint a human resource consultant to assist Mrs Taylor in the performance of her duties and to ease work pressure on her.

[84] The assertion by Mrs Hoad is similar to the claim she made in the recent proceedings where she sought to reopen her antibullying application. In my decision on that matter I observed: 35

“Disagreements between business owners about the utility of engaging consultants are not uncommon in the ordinary course of business. Prima facie, those disagreements are not bullying conduct unless the disagreement is accompanied by bullying conduct that is repeated and creates a risk to health and safety.

The material before me relied upon by Mrs Hoad does not appear to have that qualitative element.

In any event, it would appear that the engagement of the consultant is no longer a live disagreement.”

[85] On the evidence before me in this matter, I arrive at the same conclusion, with one qualification.

[86] I do so because, whilst there was an initial disagreement between Mr Hoad and Mrs Hoad about engaging Evelyn Pollard Consulting, the consultant was subsequently engaged by agreement and has undertaken work that supports and supplements Mrs Taylor’s workload.

[87] The qualification I make is to observe with concern two aspects of Mr Hoad’s position, communicated via his solicitors, when initially informing the return to work consultant that he contested the proposition that Mrs Taylor was not being supported.

[88] Firstly, in a letter to Gallagher Bassett Services of 1 July 2019 his solicitors wrote: 36

“Our client has never denied providing an additional book-keeper type role to assist Mrs Taylor with her tasks. In fact he is more than willing to employ a book-keeper tomorrow to work on site out of his office. However, until he received your email of 21 June 2019 our client was not aware that Ms Taylor required support. Nothing has been raised about the issue…”

[89] The assertion that Mr Hoad was unaware of Mrs Taylor seeking his support is inconsistent with the facts. On 8 April 2019 Mrs Taylor wrote to Mr Hoad in the following terms: 37

“I have a return to work mediation on Wednesday to clear the air with my work colleagues…This is not in relation to you or Charmaine therefore should be supported by you. I require your support with this matter…”

[90] In a further email on 1 May 2019 Mrs Taylor, exhibiting a sense of frustration, wrote to Mr and Mrs Hoad in the following terms: 38

“It is apparent to me that instead of Mark calming down the situation and explaining to the employees to reassure them and support me for OH&S he has used the situation to encourage further stress and disrespect for me and my role…I have again been discriminated and bullied…nothing by Mark has been done to reduce my stress with regards to the working environment by his staff…

Please for the sake of all employees, I request that we not be used against each other and that we all be allowed to carry out and support each other in our work.”

[91] Although Mrs Taylor’s emails concerned support in the context of the proposed workplace mediation and the solicitor’s letter of 1 July 2019 concerned support more generally, the claim made by Mr Hoad through his solicitors that he “was not aware that Ms Taylor required support” was wrong and justifiably added to Mrs Taylor’s concern at Mr Hoad’s conduct towards her including through his solicitors.

[92] Secondly, through his solicitors Mr Hoad referred to supporting Mrs Taylor via engaging “an additional supportive book-keeper”. The inference in this language is that Mr Hoad regarded Mrs Taylor as a book-keeper. Such an inference, whether advertent or inadvertent, was unreasonable. It failed to respect the full nature of Mrs Taylor’s managerial roles and trivialised her responsibilities. Whilst such language could be regarded as a slip of the pen in benign circumstances these were not, as I have noted, benign circumstances. In the Decision I dealt specifically with an allegation by Mrs Taylor that disrespectful language was used by Mr Hoad to demean her role. I found that allegation sustained and considered it part of a pattern of bullying. I noted: 39

“[86] Similarly, in his affidavit of 13 September 2018 (on which Mr Hoad expressly relies in this proceeding) he refers to Paula Taylor as “our bookkeeper”. Aside from the fact that the term “bookkeeper” is antiquated language, Mrs Taylor performs duties in the business more substantial than simply keeping the books. She has human resources responsibility and has responsibility to require compliance by staff with legal and financial obligations. Being described as “our bookkeeper” is misleading and disrespectful of the totality of the role she undertakes.”

[93] In the primary proceedings Mr Hoad sought to explain this reference in his affidavit as having been drafted by his solicitors. He advances a similar explanation in these proceedings.

[94] Whether such language is the language of Mr Hoad directly or his solicitors, it is communication sent on behalf of Mr Hoad. It is disrespectful of Mrs Taylor. Mr Hoad was on express notice of my finding in this regard in the Decision.

[95] The continued reference to Mrs Taylor as a “book-keeper”, even if inadvertent, is the repeat of a disrespectful posture towards Mrs Taylor. It, as well as the failure to identify that Mrs Taylor had sought his support, is conduct which supports a variation to the Order. I will make a specific variation to the Order to include this expression in the examples of already precluded forms of communication.

Since the Order, Mr Hoad has failed to require operational staff to appropriately value Mrs Taylor’s role in the business

[96] Mrs Hoad asserts that Mr Hoad has, since the Decision, continued to fail to require operational staff to appropriately value Mrs Taylor’s role in the business.

[97] Mrs Taylor supports this contention. Her evidence was that: 40

“Since the decision of the 21st March 2019 the toxic culture that has been encouraged by Mr Hoad from the depot office by some employees (office and drivers) has increased…The defiance to the Finance department etc encouraged by Mr Hoad is affecting my ability to carry out my work in a manner that is required for financials or compliance of the business e.g. keeping true and correct invoices.”

[98] The factual narrative advanced to support this allegation is a disagreement that occurred in October 2019 between Mrs Taylor and sales and logistics staff concerning the coding of a particular invoice.

[99] I heard only from Mrs Taylor and Mrs Hoad on that dispute, not from any sales and logistics staff. A perusal of the documentary evidence before me 41 falls short of evidence that this was bullying conduct, let alone conduct at the direction or instigation of Mr Hoad. The evidence clearly shows a disagreement between staff and a firm view from Mrs Taylor that what she was being asked to do was not within accounting standards.

[100] It is not the Commission’s role to determine who was right or who was wrong on the question of coding and accounting standards. The Commission’s role is simply to consider whether the conduct was bullying. The emails exchanged were not rude or disrespectful in tone or content. They concerned the business issue. Mrs Taylor was entitled to hold her ground and she did so. There is no evidence that she was prejudiced for having done so. As uncomfortable as the disagreement may have been, it was a disagreement between staff in the ordinary course of work. It was not bullying conduct.

Since the Order, SafeWork SA has recommended that the terms of a previous Commission decision be clarified to minimise workplace misunderstanding, and there is confusion amongst managers about the Commission Order

[101] There are two limbs to this claim by Mrs Hoad: a claim that a SafeWork SA inspector has suggested clarification of the Decision and Order; and a claim that confusion exists amongst managers on the matter.

[102] The existence of Improvement Notices issued by SafeWork SA following a notification by Mrs Hoad is not a novel development. In April 2018 Mrs Hoad contacted SafeWork SA and requested intervention, leading to SafeWork SA issuing three separate Improvement Notices on 24 April 2018. 42

[103] What is new is that, at the instigation of Mrs Hoad, on 25 September 2019 a SafeWork SA inspector (Mr Brennan) attended the business premises. An Inspection Report dated 25 September 2019 was prepared and submitted to the employer. It was accompanied by an email from Inspector Brennan to Mr and Mrs Hoad dated 26 September 2019 in which the Inspector outlined his findings and conclusions. Included in his “overview of topics discussed” the Inspector made the following observation: 43

“The interpretation of the Fair Work Commission Orders by various parties is creating conflict between departments. I recommend the PCBU seek clarity from the Fair Work Commission to reduce further conflict and confusion about the intent of the Orders.”

[104] Neither the Improvement Notices nor the Inspection Report deal directly with matters encompassed in Mrs Taylor’s bullying application. The Improvement Notices concerned chemical storage, firefighting equipment, safety data sheets, electrical equipment, the OHSE Management Plan and fatigue management. Indirectly, however, there may be some overlap with issues raised by Mrs Taylor as the Improvement Notices concerning the OHSE Management Plan and fatigue management each refer to “confusion between departments”. Mrs Taylor’s primary application was advanced, in part, on the basis that confusion over roles and hierarchies since the May 2018 Court Order contributed to bullying conduct.

[105] Mrs Hoad also refers to an email exchange between herself and the Logistics and Sales Manager on 27 and 28 August 2019. 44

[106] Mrs Hoad asked the Logistics and Sales Manager a generic question “I am just asking what has been put in place since you were notified of the FWC orders”. He replied in part:

“I don’t see anywhere in the report that the FWC has stated the company has to make changes to our COC, policies or procedures or implement rulings. The rulings apply to the individuals mentioned within the company not the company itself.”

[107] Save with respect to the obligation on Hoad Water Cartage Pty Ltd to remove certain warning letters from Mrs Taylor’s file (Item B of the Order) and on persons acting on behalf of Mr Hoad (internally or externally) to not take certain action against Mrs Taylor (for example, Item A of the Order), the Logistics and Sales Manager is correct. I have noted earlier that the primary subject of the Order was Mr Hoad.

[108] There is some overlap in roles and functions between departments in the business of Hoad Water Cartage. The Logistics and Sales Manager (working under Mr Hoad) is also the Safety Manager. 45 With Mrs Taylor (working under Mrs Hoad) as Human Resources Manager there may be safety issues that traverse personnel matters and vice versa.

[109] The SafeWork SA issue raised by Mrs Hoad is similar to the claim made in her recent reopening proceedings. In my decision on that matter I observed: 46

“the evidence before me suggests that Mr Hoad and Mrs Hoad have, at least since their separation, maintained a continuing disagreement about working arrangements, their roles and responsibilities in the business and the nature of their authority and communication. For example, each has a different view on the proper application of the Consent Orders made by the Court on 21 May 2018. Given that, it is not surprising that each carries their own view of the orders I made in Re Taylor AB2018/558. There is a reasonable probability that, even with the best will in the world, any orders or revised orders made by the Commission about the respective roles, responsibilities or conduct of Mr or Mrs Hoad in the workplace would continue to be the subject of conflict and disagreement between them until such time as their matrimonial dispute is resolved.”

[110] On the evidence before me, I make the same observation. Conflict or confusion over the meaning of the Commission’s Order is not a product of the Decision or Order. Similar tension over the meaning of the consent Court Order of May 2018 arose shortly following the making of that Order.

[111] The conflict and confusion is primarily the product of matrimonial acrimony between the two co-directors and the bifurcation of their roles between Operations (Mr Hoad) and Finance and Administration (Mrs Hoad).

[112] Mr Brennan was not called to give evidence. While I note his opinion and consider it helpful, the Commission’s role is to determine the issue according to the full body of evidence before it and its own independent statutory charter.

[113] I give weight to the fact that the Court Orders (which expressed this bifurcation) were by made consent and that the structure put in place by the Court Orders was largely kept intact by the Commission in the Decision and Order.

[114] There is also a limit to the extent that changed words in the Commission’s Order will rectify confusion or tension. More or different words carry the risk of new misunderstandings emerging over the meaning of new words.

[115] There is also, for reasons set out in the Decision, a limit to which the Commission should alter the governance or operational structure of a business or redefine roles of employees in the context of an antibullying application. The Commission has no jurisdiction to do so except insofar as it is satisfied that orders restructuring governance or redefining roles are necessary and appropriate to prevent future bullying.

[116] To the extent there is conflict or confusion about the intent of the Orders, the extensive reasons for decision I published on 21 March 2019 and now in this decision provide information on what I have ordered and why.

[117] I have concluded that there are some limited changes that should be made to the Order, and these are outlined below. They will be made for the sole purpose of preventing future bullying of Mrs Taylor. They may provide some of the clarity sought by managers and contemplated by the Inspector.

Conclusion

[118] I have found further instances of bullying of Mrs Taylor since the Decision and Order of 21 March 2019.

[119] I am satisfied that “significant practical necessity” exists within the meaning of Item T of the Order of 21 March 2019.

[120] I have reached this conclusion for the following reasons:

• The nature of the further bullying, although sporadic, has some similar characteristics to that which was the subject of the Decision and Order;

• The further bullying poses a material risk to the health and safety of Mrs Taylor;

• The antibullying jurisdiction is preventative in nature. Modest and proportionate variations to the Order, in the context of the Order as a whole continuing to operate and still serving a proper purpose, are appropriate to prevent future bullying; and

• There is utility in making variations to the Order given that Mrs Taylor continues to be employed and Court proceedings on the resolution of the matrimonial property dispute have been deferred into 2020.

[121] I do not accept the submission of Mr Hoad that his obligations under the Work Health and Safety Act 2012 (SA) and the Return to Work Act 2014 (SA) render it inappropriate to vary the Order because it may constrain his capacity to meet those obligations. If that were so, the Order itself would be so impugned, yet Mr Hoad did not appeal the Decision or Order of 21 March 2019. Further, if this submission were correct, the same could be said of the Court Order of May 2018. That Order, made by consent, also placed restrictions on the conduct of Mr Hoad vis-a-vis Mrs Taylor.

[122] The Order and Mr Hoad’s statutory obligations co-exist. I reject the proposition that an Order to prevent bullying under the FW Act has the effect of compromising a company officer’s obligation to maintain a safe workplace or facilitate the return to work of an injured employee. The prevention of bullying is, by its very nature, designed to make a workplace safer for a particular worker. This is consistent with the terms and objects of both the Work Health and Safety Act 2012 (SA) and the Return to Work Act 2014 (SA). There is no inconsistency between the two either in principle or by reference to the terms of the Order, as it will be varied.

[123] Further, whilst a business or business owner has a practical obligation to adhere to a myriad of Commonwealth and State laws operating at the one time, the antibullying jurisdiction of the FW Act is a stand-alone jurisdiction established by the federal legislature that must be given force and effect once its jurisdiction is lawfully invoked.

Order

[124] I now turn to the variations to the Order that should be made.

Item A

[125] Mrs Hoad seeks a variation to Item A to preclude Mr Hoad from “directly or indirectly bringing about the end of Paula Louise Taylor’s employment.”

[126] I agree in-principle that a variation of this type should be made but consider that it should refer more broadly to the role, responsibilities, employment security and terms of employment of Mrs Taylor.

[127] I will add to item A of the Order (Disciplinary matters and termination) a variation to make clear that neither Mr Hoad (nor any person acting on his behalf) is to take any action which, absent the agreement of Mrs Hoad or Mrs Taylor “directly or indirectly alters or threatens to alter the role, responsibilities, employment security or terms of employment of Mrs Taylor.”

[128] This variation will supplement the already express restraints on Mr Hoad undertaking disciplinary or termination action against Mrs Taylor. It will prevent bullying conduct that falls short of termination or disciplinary action (such as an involuntary move or revised role) but which nonetheless would be adverse to Mrs Taylor’s employment.

Item D

[129] Mrs Hoad seeks a variation to Item D to add non-exclusive descriptors to some of Mrs Taylor’s duties.

[130] I agree that the variation is appropriate.

[131] I will add to Item D (Direction and reporting) the following words “including business development, management of customer accounts, payroll, database management, administration and technical support and development.”

[132] These additional words specify certain functions within Mrs Taylor’s existing responsibilities and accountability to Mrs Hoad as Finance and Administration Manager. The addition of these words may provide some degree of clarity to Mr and Mrs Hoad, and to managers and staff, concerning Mrs Taylor’s functions. They are words drawn from the Court Order, and do not constitute an expansion of duties. They are in addition to her function as Human Resources Manager.

Item F

[133] Mrs Hoad seeks a variation to Item F to add the words “except insofar as the request relates to matters provided in the Orders D and E above”.

[134] Mrs Hoad intends this amendment be consequential to the amendment in Item D. However, in the manner framed it is not consequential . It would have the effect of precluding Mr Hoad from making requests of Mrs Taylor on finance and administration matters and human resource matters. Such a change would be a material and structural change to the scheme of the Decision and Order, whereby I determined that Mr Hoad would have the right to request Mrs Taylor take certain actions or deal with certain issues but that Mrs Taylor could elect to respond directly or through the agency of Mrs Hoad.

[135] I do not consider the amendment appropriate, nor consequential.

Item J

[136] Item J of the Order sets out, by way of example, forms of communication that I found in the Decision and Order of 21 March 2019 to be rude, abusive or disrespectful.

[137] For reasons mentioned above, I will add to the examples of precluded language any future reference by Mr Hoad to Mrs Taylor as a “book-keeper”.

Item P

[138] Mrs Hoad seeks a new Item in the following terms:

“That William Mark Hoad not contact any person other than Charmaine Joy Hoad in relation to Paula Louise Taylor’s claim under the Return to Work Act 2014.

[139] Mrs Hoad intends this to preclude Mr Hoad from interfering in any way with Mrs Taylor’s WorkCover (Return to Work) claim by, for example, contacting a return to work consultant.

[140] I consider this variation to be reasonable in-principle but as drafted would be an excessive constraint on Mr Hoad, as it would not simply restrict contact with the Return to Work agency and its contracted agencies but also internal staff of Hoad Water Cartage concerning return to work issues, including the Safety Manager (who reports to Mr Hoad).

[141] There are some circumstances where Mrs Taylor’s dual roles involve interaction with the operational side of the business. To the limited extent that Mr Hoad has a proper operational reason to involve himself in return to work issues concerning Mrs Taylor, I consider it reasonable that he not be prevented from raising such issues including with an external agency (such as the Return to Work agency or its consultants). However, in the interests of transparency and as a check on his conduct I consider it reasonable that Mr Hoad be required to contemporaneously notify Mrs Hoad of any such approach. An obligation to do so is consistent with Mrs Hoad’s exclusive responsibility for Mrs Taylor’s employment including her return to work and job security, and may prevent such contact putting Mrs Taylor at risk of further bullying.

[142] This order will not prevent Mr Hoad from seeking legal advice on his rights or obligations, but the constraint will apply equally to any person acting on his behalf, including his lawyers.

[143] I will include in the Order a new Item as follows:

“That should William Mark Hoad (or any person acting on his behalf) contact any person other than Charmaine Joy Hoad or his legal advisers in relation to Paula Louise Taylor’s claim under the Return to Work Act 2014 he must immediately inform Mrs Hoad of the nature and purpose of that contact.”

Item R

[144] Mrs Hoad seeks a new Item in the following terms:

“That William Mark Hoad take all reasonable steps to ensure that any employees, servants or agents under his direction or control are made aware of this Order and act in a manner consistent, and refrain from acting in a manner inconsistent, with the terms of the Order. To avoid doubt, this Order (R) “act” includes omission.”

[145] Mrs Hoad contends that this amendment is necessary to prevent Mr Hoad engaging in bullying conduct via the agency of persons acting on his behalf. She says that the evidence supports this “subtle” and indirect form of bullying.

[146] Mrs Taylor supported a variation of this type but expressed concern at the terms drafted given that it would compel active communication of these issues with employees and may make the workplace environment more uncomfortable. 47

[147] There is force in Mrs Taylor’s submission. The bifurcation of roles between Mr Hoad (operations) and Mrs Hoad (finance, administration and human resources), which has been necessary since May 2018 as in interim measure to keep the business operating amidst the matrimonial and property dispute, is challenging and fraught with discomfort for Mrs Taylor who (as I have noted) has roles that occasionally require liaison with operations staff.

[148] I have observed that the email communications before me from the Logistics and Sales Manager were not rude or disrespectful.

[149] Nonetheless, it would not be consistent with the preventative nature of orders in the bullying jurisdiction for an order to be made which creates a risk of exacerbating those relationships that are already strained or complicates the working relationships that exist and upon which Mrs Taylor relies to do her job.

[150] Whilst the variation sought is for an understandable purpose, that purpose can be met in more direct ways. Certain of the variations of the Order I have decided upon in this decision include, where necessary, reference to persons acting on Mr Hoad’s behalf. Further, this decision, as with the Decision and Order of 21 March 2019, is publicly available to any or all managers or employees who wish to be so informed. Nor is there any impediment on Mrs Taylor, Mrs Hoad or Mr Hoad for that matter drawing this decision and the varied Order to the attention of managers or staff who they consider need to be so informed. If Mrs Hoad or Mr Hoad do so, they should do so for good and proper reason and in a manner that is sensitive to the risks raised by Mrs Taylor, and the reasons why I have not mandated such an obligation.

[151] For these reasons, I decline to make the variation sought.

Operative date

[152] I do not consider that the implementation of the varied Order requires any significant pre-planning or a period of adjustment for the business or persons working therein. The variations are directed at future conduct.

[153] Accordingly, it is reasonable given that the Order of 21 March 2019 continues to operate, and that these variations are supplementary and not structural, for the variations to have immediate effect from 11.59pm on the date of publication of this Decision and the varied Order.

[154] A varied Order of today’s date, being the Order of 21 March 2019 as now varied on 4 February 2020 (together with consequential changes) will be issued in conjunction with the publication of this decision.

[155] The varied Order will continue to provide Mrs Taylor, Mrs Hoad and Mr Hoad liberty to apply to further vary or supplement the Order in light of changed circumstances, significant practical necessity, changes to the Court Order or agreement between the parties.

[156] In light of the fact that the parties to these proceedings will be provided by the Commission with a copy of this decision and the varied Order (together with a working document identifying the precise variations to the Order), it is appropriate to dispense with the obligation on Mrs Hoad to serve the varied Order on Hoad Water Cartage Pty Ltd or on Mr Hoad or Mrs Taylor under the Fair Work Commission Rules 2013.

[157] The varied Order will take effect from 11.59pm 4 February 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Appearances:

T. Earls, with permission, for the Applicant (on the application to vary, Mrs C Hoad)

P. Taylor, on her own behalf

D. Fabbro, with permission, for the Named Person (Mr M Hoad)

Hearing details:

2019.

Adelaide.

11 December.

PR705994

ORDER

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

Paula Taylor
(AB2018/558)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 21 MARCH 2019

Application for an FWC order to stop bullying – worker employed in family business - matrimonial dispute between business owners – no single employer position - bullying conduct established – orders necessary to prevent future bullying – orders made and published

Pursuant to section 789FF of the Fair Work Act 2009 and in accordance with the Decision of the Fair Work Commission (the Commission) on 21 March 2019 48 THE COMMISSION ORDERS UNTIL FURTHER NOTICE as follows:

Disciplinary matters and termination

A. That, other than Charmaine Joy Hoad, neither William Mark Hoad nor any person acting for William Mark Hoad or operating under his instructions (whether being an external legal practitioner, a manager working in the business or other third party) or acting for the employer is to take any action which:

a) Disciplines, warns or cautions Paula Louise Taylor with respect to her work performance or conduct; or

b) Terminates the employment of Paula Louise Taylor, threatens to terminate her employment or unreasonably induces her to resign from her employment.

B. That warning letters issued by solicitors of William Mark Hoad to Paula Louise Taylor dated 10 September 2018 and 12 November 2018 be removed by Hoad Water Cartage Pty Ltd from her personnel file, be rendered of no effect and be withdrawn.

C. That within seven (7) days of the commencement of this Order William Mark Hoad send Paula Louise Taylor under his hand an email informing her that the warning letters of 10 September 2018 and 12 November 2018 have been withdrawn with immediate effect.

Direction and reporting

D. That Paula Louise Taylor in her capacity as Manager of Finance and Administration of Hoad Water Cartage Pty Ltd report to and take direction from Charmaine Joy Hoad on finance and administrative matters (including finance and payroll relating to operational staff).

E. That Paula Louise Taylor in her capacity as Human Resources Manager of Hoad Water Cartage Pty Ltd report to and take direction from Charmaine Joy Hoad on human resources matters (including administrative, finance and operational staff).

F. That, irrespective of whether direction or instruction on such matters is or has been previously provided or authorised, William Mark Hoad neither directly nor through an external agent acting on his behalf further instructs or directs Paula Louise Taylor with respect to the performance of her work duties. This Order does not prevent William Mark Hoad from making reasonable requests of Paula Louise Taylor with respect to her work duties insofar as they concern the operation of the business. Should such a request be received, Paula Louise Taylor may communicate directly with William Mark Hoad or may alternatively refer the request to Charmaine Joy Hoad or respond to the request through the agency of Charmaine Joy Hoad.

Communication and interaction

G. That, on matters relating to her work for the business, William Mark Hoad communicate only with Paula Louise Taylor by email except where otherwise agreed or as required by law.

H. That William Mark Hoad provide no instruction to his solicitors (or other person not employed in the business) to communicate on his behalf with Paula Louise Taylor on matters relating to her work for the business.

I. That William Mark Hoad not communicate with Paula Louise Taylor on personal matters or matters relating to the matrimonial dispute between he and Charmaine Joy Hoad and shall limit such communication to matters relating to the business.

J. That communication by William Mark Hoad with Paula Louise Taylor be professional, respectful and business-like and not be abusive, rude or harassing and in particular such communication not refer to Paula Louise Taylor as a “side-kick”, part of a “girl’s club” or “girlfriend’s club” or accuse her of “wasting my time” or being part of a “conspiracy with the wife” or signing off emails with words to the effect “with regrets again”.

K. That communication by Paula Louise Taylor with William Mark Hoad be professional, respectful and business-like and not concern personal matters or matters relating to the matrimonial dispute between he and Charmaine Joy Hoad.

L. That William Mark Hoad not denigrate or disparage Paula Louise Taylor to any owner, manager, employee, customer, supplier or other third party of the business whilst Paula Louise Taylor performs work for the business.

M. That William Mark Hoad not require Paula Louise Taylor to enter the property from where the business is conducted but that this Order not preclude Paula Louise Taylor from entering the property should she be required to do so to give effect to her work duties.

Role and responsibilities

N. That Paula Louise Taylor be allowed by the employer and by William Mark Hoad to perform, to the extent that her working hours and medical capacity permit, the full range of duties of Manager of Finance and Administration and of Human Resources Manager of Hoad Water Cartage Pty Ltd.

O. That William Mark Hoad not restrict or limit Paula Louise Taylor from communicating with any manager, employee, customer, supplier or other third party of the business (including drivers) should it be necessary for her to do so in the performance of her work duties.

Service of Order

P. Service of this Order by Paula Louise Taylor may be effected on Hoad Water Cartage Pty Ltd and on William Mark Hoad by any one of the means set out in Rule 42 of the Fair Work Commission Rules 2013.

Date of operation

Q. That Orders A and B of this Order have immediate effect from the date and time of publication of this Order being 12 noon (Australian Central Standard Time) 21 March 2019.

R. That Orders C, D, E, F, G, H, I, J. K, L, M, N and O of this Order have effect seven (7) days from the date of publication of this decision being 11.59pm (Australian Central Standard Time) 28 March 2019.

S. In this Order:

“the business” means the businesses of Hoad Water Cartage, Andy’s Water Transport and Optiblue Pty Ltd

“the Court Order” means the Order of the Federal Circuit Court of Australia of 21 May 2018 in file number ADC1438/2018

“the employer” means Hoad Water Cartage Pty Ltd

“the property” means the property at Carey Gully in the Adelaide Hills or elsewhere from where the business is conducted

T. I grant Paula Louise Taylor, William Mark Hoad, Charmaine Joy Hoad and Hoad Water Cartage Pty Ltd (the parties) liberty to apply on short but reasonable notice should it be considered necessary to vary or supplement this Order in light of changed circumstances, significant practical necessity, changes to the Court Order or agreement between the parties.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 Application filed 11 September 2018

2 [2019] FWC 1794

3 PR705994

4 Order T, 21 March 2019

5 AB2018/537

6 [2019] FWC 2034

7 [2019] FWC 7739

8 All persons appearing had been self-represented on the primary application

9 [2019] FWC 8101

10 [2019] FWC 8303

11 An agreed consolidated volume of documentary materials was placed before me after lunch on the day of hearing, noting Mr Hoad’s objection to the evidentiary status of the contents of certain emails: Audio transcript 2.05pm 11 December 2019

12 Order Federal Circuit Court of Australia (Judge Young) 12 August 2019

13 Decision [116]

14 Order at D, E and F

15 PT1 pages 2 and 3

16 Decision [78] to [135]

17 Decision [140]

18 Decision [164]

19 Section 789FF(b) FW Act

20 CH1Letter Lindbloms Lawyers to Gallagher Bassett Services 8 April 2019

21 CH1 Email Paula to Sales 8 April 2019 9.07am

22 CH1 Email Kaitlyn Smith to Pat Brennan 8 April 2019 4.52pm

23 PT4 Email Paula to Charmaine Hoad; Hark Hoad 1 May 2019 1.49pm

24 Order Item A

25 Audio transcript Mrs Hoad 1.04pm - 1.18pm 11 December 2019; Mrs Taylor 2.32pm

26 At CH2

27 At CH2

28 Audio transcript Mr Fabbro 10.50am 11 December 2019

29 Audio transcript Mr Fabbro 10.50am and 5.53pm 11 December 2019

30 Audio transcript Mr Fabbro and Mr Earls 3.39pm - 3.48pm 11 December 2019

31 (1893) 6 R 67

32 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 6 and United Group Resources Pty Ltd and Ors v Calabro and Ors (2011) 198 FCR 514 at [71] as cited in City of Stirling v Emery [2018] FWCFB 2279 at [28]

33 Decision [164] – [167], [172] and [182]

34 Decision [113] – [128]

35 [2019] FWC 7739 at [47] – [49]

36 PT3

37 CH1 Email Paula to Sales 8 April 2019 9.07am

38 PT4 Email Paula to Charmaine Hoad; Hark Hoad 1 May 2019 1.49pm

39 Decision [86]

40 PT1 Statement of Paula Taylor page 2

41 CH7

42 Decision [42] – [44]

43 CH4

44 CH3 and CH5

45 Decision [45]

46 [2019] FWC 7739 at [47] – [49]

47 Audio transcript Mrs Taylor 5.09pm 11 December 2019

48 [2019] FWC 1794