Rizwan Nasir Sheikh v Civil Aviation Safety Authority

[2016] FWC 7039

[2016] FWC 7039

FAIR WORK COMMISSION

DECISION

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

Rizwan Nasir Sheikh
v
Civil Aviation Safety Authority; Peter Marsh; Owen Richards
(AB2016/123)

COMMISSIONER WILSON MELBOURNE, 8 NOVEMBER 2016

Application for an order to stop bullying; whether applicant bullied at work; unreasonable conduct; reasonable management action; whether created risk to health and safety.

INTRODUCTION

[1] After a long career flying commercial passenger aircraft for Pakistan International Airlines, Rizwan Nasir Sheikh emigrated to Australia and commenced employment with the Civil Aviation Safety Authority (CASA) in January 2014. His employment with CASA is as a Flight Operations Inspector (FOI), and he works within a team of other inspectors, including other FOIs, Airworthiness Inspectors and Safety Systems Inspectors.

[2] The team within which Mr Nasir Sheikh works is based in Melbourne, and his complaint, through this application, is of bullying within the team from his Team Leader, Owen Richards, and a colleague, Peter Marsh. The bullying allegations cover numerous dates, behaviours and conduct, however in summary the claimed bullying relates to 3 types of behaviour and conduct;

• Behaviour and conduct toward him designed to intimidate or belittle, including claims of shouting, yelling and other conduct by his colleague, Peter Marsh, and his supervisor, Owen Richards;



• Being excluded by Mr Marsh or Mr Richards from certain work that Mr Nasir Sheikh is qualified to perform, or activities that would ordinarily be performed by a person such as Mr Nasir Sheikh. Differential treatment on the part of Mr Marsh and/or Mr Richards, designed to exclude or humiliate; and



• Unreasonable scrutiny by Mr Marsh and/or Mr Richards of the work Mr Sheik performed.

[3] Since Mr Nasir Sheikh is employed by a Commonwealth Authority, as that term is defined in s.789FD(3) of the Fair Work Act 2009 (the FW Act), there is jurisdiction for the application to proceed.

[4] The Commission's assessment of allegations of bullying at work is an objective assessment of whether behaviour and conduct that occurred was unreasonable with an attendant likely risk to health and safety. Behaviour and conduct that, objectively considered, is reasonable management action is not bullying at work. Even having found objectively there was bullying at work, the Commission must then assess, also objectively, whether there is a risk of the conduct continuing, also with a further risk to health and safety. After that point, the Commission is vested with the discretion to make orders or not.

[5] In some contexts, and depending upon the evidence about the actual behaviours and conduct, the matters complained of by Mr Nasir Sheikh and summarised above may well be unreasonable. A competent employee, subjected to some unstated dislike by others may be required to largely perform less interesting or less stimulating tasks. An employee may find the faults of others or of the team blamed on themselves.

[6] In other contexts and circumstances, the behaviour and conduct may be reasonable. Newly employed employees in a regulatory environment can expect to have the scope of their work initially restricted as they develop expertise, irrespective of their background or prior professional experience. Poor performing employees may be expected to have their work scrutinised more than others, with the attendant requirement to rectify demonstrated problems.

[7] It is also the case that allegations of bullying at work levelled by an individual for behaviour or conduct by others, together with a request that orders be made, may sometimes not adequately or comprehensively capture the multi-dimensional nature of the behaviours and conduct within a particular workplace. Unreasonable conduct and behaviours – or simply dysfunctional conduct and behaviours – may flow from an applicant seeking bullying orders as much as those behaviours being directed by others toward the applicant employee.

[8] A characteristic shared with a workplace featured either by workplace bullying or dysfunction for some other reason is that neither state could possibly be regarded as an optimal workplace. Bullying at work, directed at an individual or group of individuals has social, health or productivity consequences for all concerned. A workplace in which an employee performs less than the full range of their expected tasks, perhaps for reason of poor, or suboptimal performance, cannot be regarded as a fully functioning team let alone a high performing one.

[9] And so it is with the team in which Mr Nasir Sheikh is employed.

[10] Thirty-one allegations of bullying have been advanced against Mr Marsh and Mr Richards. One of those was withdrawn, meaning that 15 allegations of bullying were levelled at each. Only one of the allegations was substantiated as having been an unreasonable behaviour (Marsh Allegation 5), albeit that I found that the conduct did not create a risk to health and safety.

[11] The evidence does not support a finding that he has been bullied at work, within the proper meaning of the FW Act.

[12] Even so, the interpersonal dysfunction of the team is palpable. The behaviours and conduct of a number of people, including Mr Nasir Sheikh, Mr Marsh and Mr Richards, have been less than desirable, while not unreasonable to the threshold required for a finding that there has been bullying at work.

[13] One does not need to be skilled in the technical requirements for the high standards of regulation of aircraft and the associated investigation of incidents to recognise that, without correction, the interpersonal dysfunction of the team will continue, may get worse and then may have the severest consequences, either for persons within the team or for the tasks they perform.

[14] While there is not justification in the evidence for findings of, or orders associated with bullying at work, there is ample justification for the Commission to recommend corrective action by all concerned.

[15] At the request of the parties, a confidentiality order was made in the course of the hearing in order to ensure that the details of CASA’s interactions with the duty-holders it regulates not be identified within this decision. Accordingly, certain names and other details of the air operators that are the subject of CASA’s regulatory interactions have been omitted from evidence quoted in this decision. For the purposes of clarity, this decision and everything within it is public.

APPLICABLE LEGISLATION

[16] The FW Act’s provisions in relation to anti-bullying are contained within Part 6-4B—Workers bullied at work, with s.789FD setting out the circumstances of when a worker is bullied at work;

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.

[17] Section 789FF sets out the powers of the Commission to make orders in the event that it is satisfied there is bullying at work;

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 CONSIDERATION OF ANTI-BULLYING APPLICATIONS

[18] An applicant for an order from the Commission to stop bullying under s.789FC must not only be a worker but must be one who “reasonably believes that he or she has been bullied at work”, with that belief being actually and genuinely held, as well as it being reasonable in an objective sense. 1 The term “worker” has the same meaning as in the Work Health and Safety Act 2011 (Cth), but does not include a member of the Defence Force.2

[19] Conduct does not occur “at work” merely because it has a substantial connection to work. 3 The question of whether behaviour or conduct occurred “at work” does not necessarily equate to the performance of work and will require a consideration of the context, including custom and practice, and the nature of the worker’s contract.4

[20] Ascertainment of “unreasonable behaviour” in the context of Part 6-4B of the FW Act requires application of an objective test having regard to all the relevant circumstances applying at the time. 5 The Explanatory Memorandum which accompanied the Bill from which this legislation arises makes reference to the earlier majority report of the House of Representatives Standing Committee on Education and Employment, entitled “Workplace Bullying - We just want it to stop” and made the following points about behaviour and its assessment by the Commission;

“109. The Committee went on to note that ‘repeated behaviour’ refers to the persistent nature of the behaviour and can refer to a range of behaviours over time and that ‘unreasonable behaviour’ is behaviour that a reasonable person, having regard to the circumstances may see as unreasonable (in other words it is an objective test). This would include (but is not limited to) behaviour that is victimising, humiliating, intimidating or threatening.” 6

[21] The conduct to be considered is that of natural persons, given that there is no provision in Part 6–4B that suggests bullying at work is something which can be engaged in by a corporation; 7 however the individuals engaging in the unreasonable behaviour need not be workers, for example they may be customers.8

[22] Repeatedly behaving unreasonably implies the existence of persistent unreasonable behaviour but it might refer to a range of behaviours over time. There is no specific number of incidents required for the behaviour to represent ‘repeatedly’ behaving unreasonably. ‘Unreasonable behaviour’ should be considered to be behaviour that a reasonable person, having regard to the circumstances, may consider to be unreasonable. 9 Consideration of the question of whether an individual or group “repeatedly behaves unreasonably” will require a purposive approach and “unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”.10 Further, for conduct to be reasonable it does not have to be the best or the preferable course of action, rather the conduct will be objectively assessed as to whether what was done was done “reasonably”, not whether it could have been done more reasonably or differently.11

[23] It will be necessary for the Commission to determine whether the alleged behaviour actually occurred, and once the necessary findings of fact have been made, the Commission can then determine whether the behaviour was unreasonable. 12

[24] In relation to the risk to health and safety of unreasonable behaviour, there must be a causal link; however, the behaviour does not have to be the only cause of the risk, but a substantial cause of the risk viewed in a common sense and practical way. A risk will be the possibility of danger to health and safety, and not necessarily actual danger. 13 The reference within s.789FD(2) to the effect that the definition of “bullied at work” does not apply to reasonable management action carried out in a reasonable manner is not an exclusion but a reference for the avoidance of doubt. The reference to reasonable management action carried out in a reasonable manner serves to provide guidance in the interpretation and application of s.789FD(1)(a) in circumstances in which it is alleged that management action such as performance management, disciplinary action, allocation of work, restructuring of the workplace and employer directions constituted bullying.14

CONSIDERATION

[25] The particulars of Mr Nasir Sheikh's allegations are very lengthy, canvassing almost the entire period of his employment by CASA. The way in which this matter has been developed before the Commission means there have been several sets of allegations at different times, with the limited categorisation set out within the different versions not being consistently employed across the different versions of material before the Commission, and each lacking a uniform or coherent chronology. Inevitably, this has made the Commission’s analysis of the allegations more difficult.

[26] The listing of allegations and categorisation I have used below is that set out in Mr Nasir Sheikh’s Outline of Submissions, dated 6 July 2016. 15 This listing is consistent with that set in the Applicant’s Closing Submissions, dated 31 August 2016, provided after the hearing, which took place on 3 and 4 August 2016. Because of the way that the allegations have been set out, some of the factual circumstances are dealt with in several parts of the analysis. This listing shows 15 allegations against Mr Marsh and 15 against Mr Richards. A 16^th allegation against Mr Marsh was withdrawn in the course of the hearing.

[27] The following dates are relevant to an understanding of the various allegations made and responses;

• 13 January 2014 - Mr Nasir Sheikh’s employment commenced with CASA;



• 10 September 2015 - First PACS (Performance and Communication Scheme) discussion with Mr Nasir Sheikh;



• 6 November 2015 - Second PACS discussion with Mr Nasir Sheikh;



• 16 November 2015 - internal bullying and harassment complaint made on behalf of Mr Nasir Sheikh making allegations about the conduct of Mr Marsh as well as concerns about the PACS process undertaken by Mr Richards (referred to as the CASA Internal Bullying and Harassment Complaint);



• 8 December 2015 - an investigator was appointed to investigate the allegations made in the CASA Internal Bullying and Harassment Complaint, following a preliminary assessment of the complaint;



• 24 February 2016 - final investigation report accepted by CASA Ethics and Conduct Committee (referred to as the CASA Internal Investigation Report);



• 26 February 2016 - complaint by Mr Nasir Sheikh that Mr Marsh had breached the Public Governance and Accountability Act 2013 (Cth) (PGPA) (communicated to Mr Marsh on 2 March 2016;



• 21 March to 1 April 2016 - Mr Nasir Sheikh absent from workplace on carers leave;



• 6 April 2016 - determination by CASA that Mr Marsh had not breached the PGPA;



• 29 April 2016 - anti-bullying application commenced in the Fair Work Commission relating to the conduct of Mr Marsh;



• 30 May 2016 - first conciliation conference before Commissioner Wilson;



• 14 June 2016 - second conciliation conference before Commissioner Wilson;



• 20 June 2016 - anti-bullying application amended to include the conduct of Mr Richards.

[28] For the purposes of convenience, the following abbreviations are used throughout this decision;

• AOC Air Operators Certificate



• CMT Certificate Management Team



• CTM Certificate Team Manager



• FOI Flight Operations Inspector



• FRMS Fatigue Risk Management System



• HFO Head of Flying Operations



• PACS Performance and Communication Scheme



• QRH Quick Reference Handbook

[29] Mr Nasir Sheikh commenced flying in 1978 and has worked as a commercial pilot since 1980. He has extensive international aviation experience flying major passenger aircraft when employed by Pakistan International Airlines and has managerial experience with air operators in Australia and New Zealand. 16 He has been employed by CASA since January 2014 and is presently employed as a Flight Operations Inspector (FOI) in a particular regulatory team based in Melbourne. Since about March 2014 his Team Leader has been Owen Richards, who is one of the two people named in Mr Nasir Sheikh’s anti-bullying application. Working within the same team is another FOI, Peter Marsh, who is the second of the people named within Mr Nasir Sheikh’s anti-bullying application.

ALLEGATIONS AGAINST PETER MARSH

[30] The Applicant’s Outline of Submissions advances 15 allegations of bullying conduct in four categories against the first of the people named in his application, Mr Marsh.

[31] Mr Marsh has been employed by CASA since November 2011 as a Flying Operations Inspector. 17 His aviation career commenced in 1977 and he has significant passenger airline flying experience on a number of different aircraft, having flown as an airline captain both in Australia and internationally. He has more than 22,000 hours flying experience.18

A. Allegations of belittling and humiliating comments by Mr Marsh

Marsh Allegation 1. May 2014 – regulatory approval incident

[32] The first allegations made by Mr Nasir Sheikh about belittling and humiliating comments on the part of Mr Marsh relate to a program of activity in which both were engaged in early May 2014. The activity concerned the assessment of a regulatory approval request that had been assigned to the relevant Certificate Management Team (CMT) and to Mr Nasir Sheikh in particular. The allegation of unreasonable behaviour relates to a telephone call between Mr Nasir Sheikh and Mr Marsh in which the approval request was discussed. At the time, Mr Marsh was out of Australia, in Asia.

[33] There is a contest between Mr Nasir Sheikh and Mr Marsh about the precise date of the telephone conversation in which the comments are alleged to have been made as well as the length of the phone call. Whereas Mr Marsh puts the telephone call as being on 6 May 2014 and Mr Nasir Sheikh puts it on 8 May 2014, corroborative evidence in the form of an email from Mr Nasir Sheikh to himself in the form of a file note suggests that the conversation was more likely on the latter date. 19 The context to the allegation is set out within Mr Nasir Sheikh’s witness statement in the following terms;

“13. During the telephone discussion with Mr Marsh, when I spoke about how I was going to proceed with the approval, Mr Marsh kept telling me, "You don't understand anything, you cannot issue the approval". I explained to Mr Marsh that Team Leader Mr Richards had given me the task of assessing the approval. He got angry and made more comments like, "You do not know anything". I suggested we could discuss it once Mr Marsh got back. I told him I would make the necessary checks, and then get the Team Leader to have it peer reviewed before sign-off.

14. Mr Marsh did not accept this and began asking me various technical questions. During the conversation, Mr Marsh also said words to the effect of "I am telling you." “You don't understand!" and ''It's a cultural thing" and continued to insist that I couldn't do the task.

15. The telephone conversation lasted approximately 50 minutes. I was quite shocked by Mr Marsh's behaviour. I was particularly shocked by Mr Marsh's statement that it was a "cultural thing", given that I had only migrated to Australia in 2011.” 20

[34] Mr Marsh disputes that he said the things alleged by Mr Nasir Sheikh. 21 He also puts forward that at the time Mr Nasir Sheikh was not qualified on the particular aircraft type “however as I was then overseas attending to another regulatory task he was assigned the task by CTM Richards”.22 It is his recollection that he then had a conversation with Mr Nasir Sheikh to ascertain whether the latter had conducted a full assessment of the documentation provided by the operator; in his capacity as Mr Nasir Sheikh’s mentor he wanted to be sure that a proper assessment was being carried out and asked whether it had. In response to the assertion that he had told Mr Nasir Sheikh that he could not issue the approval, “[g]iven that the … approval had already been issued at this point it would have made no sense for me to have asserted that Mr Nasir Sheikh could not issue it”.23 Mr Marsh’s evidence is that he regarded Mr Nasir Sheikh at the time as still being under probation and not type-rated on the particular aircraft and, in any event, his decision had not been peer-reviewed by a “type specialist”.24

[35] Mr Marsh gives further evidence that having returned to Melbourne he informed Mr Nasir Sheikh “that as a regulator we need to assess applications based on the aircraft type and, as an example, I then asked him whether he considered the turning circle of the [aircraft]” when assessing the application. “He then became verbally aggressive and advised me that “we are equal here and I don’t like you asking me these questions”. I was shocked by this response and “backed off” in order to de-escalate the situation.” 25

[36] An email sent by Mr Nasir Sheikh to himself on 8 May 2014 in the form of a file note refers to him having disclosed his concerns to his team leader, who at that time was Mr Richards. 26 In his witness statement, Mr Richards records that around that time, May 2014, he had noted that Mr Nasir Sheikh was becoming frustrated with his level of supervision, manifesting itself “in resentment towards the particular inspector assigned to provide the supervision”,27 and that the primary resentment was towards Mr Marsh with whom he had greater day-to-day dealings, being his assigned mentor.28 Each raised their frustrations with Mr Richards but he considered they were manageable through dialogue and discussion.29 Further;

“In identifying the issues which were developing between Mr Nasir Sheikh and Mr Marsh throughout 2014 and 2015, I had a number of verbal conversations with both officers in attempts to engage, coach, mentor and work through the communication and interpersonal concerns. Through close to ten years' experience in the management of staff, I believed the best method to resolve problems of this nature, was to engage the relevant individuals in joint discussions with myself in an attempt to talk through and resolve the issues at hand. In order to provide a circuit breaker between the two, I also sought opportunities to involve other people aside from Mr Marsh in providing assistance and guidance to Mr Nasir Sheikh. However, when it came to work involving the [aircraft] Mr Marsh's input was necessary since he was and is the only person with the necessary technical knowledge to assist in such matters.” 30

[37] From the evidence given about this particular event I consider that while there may well have been a difference of opinion between the two concerned about what needed to be done, I am not satisfied that either have exhibited unreasonable conduct toward the other. I concur with the statement indicated in Mr Marsh’s witness statement to the effect that having been assigned as Mr Nasir Sheikh’s mentor it was reasonable for him have a discussion with Mr Nasir Sheikh about his concerns about the method by which the regulatory application had been assessed. 31 On the evidence before the Commission, the views Mr Marsh held were reasonably held by him. By corollary, since he held those concerns, it would have been unusual if he had not had the conversation with Mr Nasir Sheikh that took place.

[38] This allegation has not been substantiated as unreasonable behaviour or conduct at work towards the Applicant.

Marsh Allegation 2. 10 July 2014 – speaking in a demeaning tone to Mr Nasir Sheikh and repeatedly hitting him

[39] The second of the allegations regarding belittling or humiliating comments being made by Mr Marsh to Mr Nasir Sheikh concerns an event on 10 July 2014.

[40] The context recorded by Mr Marsh about the circumstances are that on the particular day the two were completing a CASA-led auditor training course which required them to undertake a practice audit as part of the course program. The Applicant alleges the conduct arose when he asked a question in the course of a briefing from an administration officer about the making of CASA travel arrangements. The allegation is that Mr Marsh reacted poorly to the question, and Mr Nasir Sheikh alleges that “Mr Marsh repeatedly hit me on my shoulder and rudely and loudly said to me, “You cannot ask that question! Do not ask that question” in a demeaning tone”. 32 Mr Nasir Sheikh considered the comment was unwarranted and that he felt embarrassed as a consequence.

[41] Mr Marsh concedes that he had responded to the question asked by Mr Nasir Sheikh along the lines of “[w]e really can’t ask that type of question at the admin staff level”, 33 but strongly denies the tone having been inappropriate or that he had hit Mr Nasir Sheikh in any way.

[42] Another person who was at the meeting, Mary Taranto, an administration officer, was interviewed in the course of a CASA investigation into Mr Nasir Sheikh’s allegations of misconduct, which was completed in February 2016 (the CASA Internal Investigation Report). Ms Taranto was quoted within that report as having said that she could not specifically recall the incident as it was over a year ago, but that she vaguely recalled “words to the effect of not being able to ask that question being stated but did not recall Mr Marsh hitting Mr Nasir Sheikh in any form”. 34 The same investigation report records another employee also present within the meeting, Marc Herreen, as reporting that he had not seen any conflict during the training exercise; that he did not see Mr Marsh hit Mr Nasir Sheikh; and that Mr Marsh has a big personality but was not an intimidating person.35 Neither Ms Taranto nor Mr Herreen were called to give evidence in these proceedings.

[43] At least within Mr Nasir Sheikh’s evidence this particular allegation lacks context, with him not directly putting forward what the offending question may have been or what may have led to Mr Marsh’s alleged response, whether verbal or physical. However, context is provided in the CASA Internal Investigation Report, with the investigator providing the following detail;

“ Mr Marsh reported that during the training exercise Mr Nasir Sheikh interrupted Ms Mary Taranto and asked "why don't we just book our own travel on the internet rather than using the company CWT?" He further reported that both he and Ms Taranto were confused by the question.

• Mr Marsh reported that Mr Nasir Sheikh repeated the question and Mr Marsh stated "we can't really ask that type of question at the admin staff level”.



• Mr Marsh further reported that Mr Nasir Sheikh became upset and stated "don't interrupt me when I am asking a question". Mr Marsh further reported that he was surprised by this and backed off.” 36

[44] This context is important inasmuch as the words spoken by Mr Marsh make sense within the context of Mr Nasir Sheikh’s question, being one that potentially invited a departure by employees from a mandated corporate travel service. To do so invites non-compliance with corporate policies, which may have its own consequences. A question to the effect of whether employees may ignore a travel policy and make their own travel bookings other than through a mandated travel provider may well be reasonably responded to by another person within the meeting along the lines of “you cannot ask that question”, meaning that it is both inappropriate to ask the question as well as being directed to a relatively junior employee without the authority to countenance a departure from the authorised standard.

[45] As a result I do not consider the words spoken by Mr Marsh, whether on his version or that of Mr Nasir Sheikh’s, were unreasonable conduct.

[46] Within the same meeting Mr Nasir Sheikh alleges that Mr Marsh hit him. The CASA Internal Investigation Report records that “when asked to demonstrate how Mr Marsh hit him, Mr Nasir Sheikh repeatedly slapped his own shoulder”. 37 Such is consistent with the action demonstrated by the Applicant in the course of his cross-examination when he demonstrated what I would regard as a flicking action.38 Mr Marsh denies that he ever hit Mr Nasir Sheikh, either on this occasion or some other time.39 In the absence of greater evidence on this matter, there is no substantiation that Mr Marsh hit Mr Nasir Sheikh on this, or any, occasion.

[47] In this regard I take into account the material before the internal investigation, as well as its findings, which had the benefit of a greater range of evidence on the subject than that brought before the Commission.

[48] This allegation has not been substantiated as unreasonable behaviour or conduct at work towards the Applicant.

Marsh Allegation 3. April 2015 – airline audit – whether a job was “pulled” from Mr Nasir Sheikh

[49] In late 2014 extending through into 2015, Mr Nasir Sheikh had been assigned an auditing role in respect of a particular air operator. In April 2015 Mr Marsh was the Acting Team Leader and he and Mr Nasir Sheikh were discussing, in the form of a peer review, Mr Nasir Sheikh’s approval of a particular part of the operator’s proposal.

[50] On Mr Nasir Sheikh’s evidence, Mr Marsh had said to him that he had learned that there had been a fault on the particular simulator used for pilot training and that he was told by Mr Marsh to wait until he had spoken to the airline Head of Flying Operations. Shortly afterwards he noticed that Mr Marsh had emailed the airline about the matter. On 2 April 2015, he became aware of the email because Mr Marsh had provided him with a copy of it. The email is in relatively innocuous terms, referring to a conversation Mr Marsh had with the addressee of the email and that he would like to arrange a meeting to discuss the application, and then indicating dates upon which Mr Nasir Sheikh and he would be available for the meeting. Mr Nasir Sheikh’s witness statement on the subject records that he asked Mr Marsh about the email and received a curt response;

“29. I asked Mr Marsh politely, "Did you email [Operator 1]? I thought I was following up".

30. Mr Marsh then said very loudly, in front of other team members, "Did you not understand? I pulled the job from you".

31. I felt that Mr Marsh's tone was confrontational and aggressive. I remained polite and then said, "There must have been a misunderstanding, because you only mentioned talking to [Operator 1] first. Is this the protocol to pull a job?"

32. Mr Marsh said loudly, ''Yes".

33. I said, "Thought you would send me an email first. In any case, here's the file. I'll send you an email to confirm handing over the task".” 40

[51] Mr Nasir Sheikh records a further incident on the same subject a few days later, on 7 April 2015, when Mr Marsh called a meeting on the subject when the following is said to have ensued;

“36. In the room I said to Mr Marsh, "I thought you pulled the job from me. Are we discussing the same case?"

37. Mr Marsh then said, in a loud and aggressive tone of voice, "Do not cross me or else". He got up from a sitting position and stood over me. I felt very threatened by his words and actions.” 41

[52] Mr Marsh puts forward that he was the Acting CTM at the time and agrees he “called the job in” 42, but disputes having said he would “pull the job”. His evidence is also that he did so after receiving queries in relation to Mr Nasir Sheikh's handling of the matter from the operator’s Head of Flying Operations and Mr Richards.43 The former had said they were confused about Mr Nasir Sheikh’s request for additional information and the latter had asked Mr Marsh before going on leave to look into the delay and find out what had held up the approval process. When he did so Mr Marsh noticed that the job had been with CASA since October 2014 and with Mr Nasir Sheikh since November 2014.44 Whether Mr Marsh “pulled the job” from Mr Nasir Sheikh or “called the job in”, such appears to have been reasonably open to him, in response to the matters he was dealing with as Acting Certificate Team Manager. There is nothing unreasonable in what he did or how he communicated it. From time to time team managers do change the responsibility for who conducts or completes work. For the avoidance of doubt, I find both that Mr Marsh did not behave unreasonably toward the Applicant while at work in respect of this allegation and that his actions were reasonable management actions carried out in a reasonable manner.

[53] Mr Marsh strongly denies that he had ever said to Mr Nasir Sheikh “do not cross me or else”. 45 There is insufficient evidence before the Commission on the subject for a finding to be made that such conduct occurred. The matter was not the subject of cross-examination of either Mr Nasir Sheikh or Mr Marsh.

[54] I therefore find that neither part of this allegation has been substantiated as unreasonable behaviour or conduct at work towards the Applicant.

Marsh Allegation 4. August 2015 – Asian port audit

[55] Mr Nasir Sheikh contends as a further example of belittling or humiliating conduct on the part of Mr Marsh that at a meeting at the end of August 2015 he was told by Mr Richards that Mr Marsh would replace him for a port audit of an operator’s destination in Asia and that around this time Mr Marsh had said he was the one to be sent because “you cannot send someone for a boy’s look”. Mr Nasir Sheikh felt that this was referring to him and the standard to which he thought he would have done the job. 46 Mr Marsh’s witness statement on the subject records that he denies “saying those words or any like words and it is not clear to me what the expression actually means”.47 The allegation about the use of the expression was not the subject of oral evidence by any witness.

[56] The CASA Internal Investigation Report records that the people in the meeting in question were Mr Nasir Sheikh, Mr Marsh, Mr Richards and another employee, Alex Gonzalez. Mr Richards’ witness statement does not deal with the question of this particular allegation, however the CASA Internal Investigation Report records him as saying to it “that he cannot recall Mr Marsh making that statement and if he did he would not tolerate it”. 48 The same report notes that Mr Gonzalez declined to participate in the investigation. Neither party in these proceedings sought to require the attendance of Mr Gonzalez as a witness.

[57] Given this situation, I find that the phrase alleged by Mr Nasir Sheikh to have been spoken by Mr Marsh is likely to not have been said and that it is unlikely that whatever was said at the time was unreasonable to say.

[58] I therefore find the allegation is not substantiated as unreasonable behaviour or conduct at work towards the Applicant.

Marsh Allegation 5. From May 2014 to October 2015 – references to Mr Nasir Sheikh’s understanding and whether he would be made a manager

[59] The somewhat general allegation is made that between May 2014 and October 2015 Mr Marsh made comments to Mr Nasir Sheikh’s colleagues to the effect that Mr Nasir Sheikh did not understand Australian regulations, did not understand Australian culture and would not be made a manager.

[60] The former allegation, of a lack of understanding of Australian regulations or culture, has not been particularised by Mr Nasir Sheikh. In the material before the Commission it first appears in the CASA Internal Bullying and Harassment Complaint against Mr Marsh, in which he alleges Mr Marsh to have said “[h]e does not understand Australian regulations” and “[h]e doesn’t understand our culture”. 49

[61] There is insufficient evidence in relation to the first part of the allegation to make a finding in favour of the Applicant.

[62] The latter part of the allegation, that Mr Marsh had said words about Mr Nasir Sheikh to the effect that “I know things you don’t, he will not be made a Manager”, 50 was responded to in his witness statement by him saying he did not recall having made such a statement.51 However, in the course of cross-examination Mr Marsh conceded that he had said the words.52 In this regard he offers the explanation of it being said in the course of a conversation with other staff speculating about who would likely obtain promotion into a team leader position, with him putting that it was not an attempt to undermine Mr Nasir Sheikh;

“We were at a morning coffee, out with a number of inspectors as we do at 10 o'clock every day. At the time of the restructure of the southern region office, there was a lot of discussion about who would get the positions of the new team leaders. There was my view and I voiced my view, along with everyone else at the time. My view was that Owen Richards, Will Nuttall, Dave Edwards and Jay Koster would be the most likely applicants to be successful. I do recall that Mr Nguyen - Mr Richard Nguyen - who was also at that morning coffee - I do have a recollection that he made some comment about the fact that, "they would probably need an air transport FOI," and the fact that Mr Sheikh had applied for the position. My response to that was, "I don't think he would be made a manager". Someone said to me - and I'm not sure whether it was Richard Nguyen or someone else said to me at the time, "why not?" I wasn't going to go into specifics about my interactions with Mr Sheikh and his knowledge, but I just said, "Look, I" - and I don't know the exact words, but I can concede I said words to the effect, "Look, I know things you don't," and I did not go into specifics. If I was going to undermine and ridicule Mr Sheikh, I would have gone down the road of outlining all the deficiencies that I discovered along - over the period of time, but I did not do that. In hindsight, I will concede that I got caught up in a conversation that probably shouldn't occur, but is a normal workplace conversation that does occur when these sorts of things happen.

I put it to you that the sentence, "I know things you don't. He will not be made a manager," is inherently demeaning if it's being said to various people's colleagues?---No, I disagree with that. Different people have different skillsets. It was my view that Mr Sheikh would not be successful in that position and it was equally my view who the successful applicants would be. This was a discussion that was occurring and with all sorts of different people proposing - or different inspectors proposing different persons who they thought would be successful. That was the context of what was really quite a brief discussion over morning coffee.” 53

[63] While the evidence does not record the date of this event, the context of what was said places it in the latter part of 2015, given that it involves the southern office restructure, which took place in the second half of 2015, with Mr Richards being placed in one of the jobs involved in the restructure in November 2015.

[64] The full text of the CASA Code of Conduct is not directly before me, however there is evidence that it includes the requirement that employees “[t]reat everyone with respect and courtesy and without harassment”. 54 While gossip of the nature set out above in the course of a coffee discussion about who will or will not be likely to be promoted is objectively a breach of the requirement to treat everyone with respect and courtesy and without harassment, it would be an unusual workplace in which such gossip did not take place. Whether or not it may be polite or acceptable, employees will speculate about who may be likely or unlikely to win jobs in the offering; and it may be observed that the most vocal in this respect are sometimes the least informed or the least likely to themselves be promoted. That observation is not to condone the potentially hurtful or destructive nature of uninformed speculation about promotional prospects or to consider that there would not be circumstances in which there is a hurtful comment with deliberate harmful intent. However, it serves to place in context that gossip of this type is hardly unknown and may not have deleterious effects beyond annoyance on the part of those named not to be in the running.

[65] In full context of the matters before the Commission as well as the evidence of Mr Marsh on the subject, which I accept, I consider this to have been an unreasonable behaviour on the part of Mr Marsh. It was disrespectful or discourteous of Mr Nasir Sheikh. While so, I consider it to be at the lower end of disrespect or discourtesy.

[66] Necessarily, human behaviour in the workplace is an interaction between two or more people. While workplace behaviour is often of a transactional or collaborative nature for positive effect, it is not always so. Apposite to this, and within the context of an unfair dismissal application in which an employee was dismissed for alleged workplace bullying, Commissioner Cloghan passed comment that;

“[73] While the Commission does not and should not endorse the view that “anything goes” at the workplace, it is also important not to confirm as bullying and gross misconduct behaviour, as in this case, which is not pursued with any vigour and relates to incidents which occurred some time ago. In my view, the Commission should guard against creating a workplace environment of excessive sensitivity to every misplaced word or conduct. The workplace comprises of persons of different ages, workplace experience and personalities - not divine angels. Employers are required to pursue inappropriate behaviour but need to be mindful that every employee who claims to have been hurt, embarrassed or humiliated does not automatically mean the offending employee is “guilty of bullying” and “gross misconduct”. 55

[67] Even so, I find the comment by Mr Marsh that Mr Nasir Sheikh would not be made a manager was unreasonable behaviour or conduct at work towards the Applicant.

[68] There is no specific evidence before me that this conduct created a risk to health and safety, and I do not find that it did. In that regard, I take account both of the lack of evidence on the safety risk as well as Mr Marsh’s evidence about his intentions about his conduct.

Marsh Allegation 6. December 2015 – interruption during team meeting

[69] The final allegation Mr Nasir Sheikh makes of belittling and humiliating comments by Mr Marsh relates to a discussion in a team meeting on 3 December 2015 when the Applicant asked a colleague, Shawn Ottway, a question about how a particular company was conducting its simulator assessments when this exchange ensued;

“Mr Marsh interrupted me and said rudely, "You cannot ask that – they can do as they like." I asked Mr Marsh politely if he could allow Mr Ottway to respond to my question. After the meeting, Mr Richards took me aside and said to me that I should not interrupt. He then sent me an email to this effect.” 56

[70] A similar allegation is also made against Mr Richards relating to the same circumstances, but with that allegation concerning the later conversation between he and Mr Nasir Sheikh to the effect that the latter should not interrupt others.

[71] The evidence before the Commission in respect of the allegation against Mr Marsh includes the statement referred to above in Mr Nasir Sheikh’s evidence, and Mr Marsh’s response, along with Mr Nasir Sheikh’s emailed file note, entitled “Peter's rude interruption and Owen blaming me” which records;

“We were all asking questions. When I asked a question to Shawn, about the unusual way [Operator 2] were conducting the simulator assessments. Peter rudely interrupted, saying you cannot ask that- they can do as they like. I requested Peter to allow Shawn to respond to my question, at which he got angry took off his glasses and started fuming.” 57

[72] Mr Nasir Sheikh did not elaborate upon the allegation in his oral evidence.

[73] Mr Ottway, who was in the meeting as well, records the following in his witness statement about the exchange about which Mr Nasir Sheikh complains (noting that the Applicant did not cross-examine Mr Ottway on this or any other matter);

“29. During the discussion about one of those AOC holders, [Operator 2], the Applicant asked whether the operator's simulator training program had been approved under a regulation [under] the Civil Aviation Safety Regulations 1998 (CASR).

30. FOI Marsh attempted to point out that the question was irrelevant or technically inapplicable, however the Applicant spoke over the top of FOI Marsh and stated that it was his right to ask questions and that FOI Marsh should stop interrupting. FOI Marsh made no further comment on the matter.

31. I recommenced my briefing and started to provide an answer to the Applicant's question when the Applicant spoke over the top of me and asked the same question as before. ·

32. I stated to the Applicant that if he would stop interrupting me I would be able to answer his question. I then stated that an approval under [the part] was not required as the elements of the simulator training program are approved under [regulation] of the Civil Aviation Regulations 1988 as per other airline operators.” 58

[74] The allegation suffers from there being insufficient evidence before the Commission to allow a finding in favour of Mr Nasir Sheikh and so it is not substantiated as unreasonable behaviour or conduct at work towards the Applicant.

B. Allegations of Mr Marsh’s intimidating and confrontational manner

Marsh Allegation 7. May 2014 – regulatory approval incident – whether “shouting”

[75] Mr Nasir Sheikh advances an allegation that a telephone conversation between the two on or around 8 May 2014 involved shouting by Mr Marsh at Mr Nasir Sheikh and that accordingly the events were intimidatory and confrontational. As set out above, at Marsh Allegation 1, I have found that although there may have been a difference of opinion between the two, the interaction did not involve unreasonable conduct on the part of Mr Marsh.

[76] The Applicant’s Outline of Submissions on the subject of the conversation as well as his closing submissions refers to their having been “shouting” at Mr Nasir Sheikh in the conversation by Mr Marsh. 59 Mr Nasir Sheikh’s evidence in cross-examination was that the following occurred in the course of the disputed telephone conversation between the two;

“…Peter called me and I assumed that it had not been approved and he asked me all these questions in a very demeaning way and then shouting at me, as he was upset that it had been approved without him approving it or something. I have no idea, but it issued on the day and there's an email, because of that email was sent afterwards, on the same day, on the 8th. He still wanted more information if the approval had been given. I don't understand” 60

[77] Mr Nasir Sheikh reported that Mr Marsh had shouted at him. Mr Marsh refutes the allegation. 61 It is noticeable from Mr Nasir Sheikh’s evidence that there is not a characterisation of what “shouting” might amount to. That is, there is not a characterisation of whether it is said to be words stated firmly and repeatedly or whether it is words yelled at a much higher than normal speaking voice. No words spoken during the periods of Mr Marsh’s alleged “shouting” have been related to the Commission.

[78] The Macquarie Dictionary defines the word “shout” as meaning “to call or cry out loudly and vigorously” when used as a verb. 62 Whatever characterisation is meant by Mr Nasir Sheikh’s use of the term, it was not put to Mr Marsh in the course of his cross-examination.

[79] I therefore consider it likely that, in the context of the allegations made by Mr Nasir Sheikh and the conversation related by him that his use of the term refers to things being said to him firmly and with emphasis, not loudly and vigorously, let alone in an inappropriate manner. I consider, after taking account of Mr Nasir Sheikh’s evidence as a whole, it to be likely that Mr Marsh saying to him words that he did not want to hear or in a manner that indicated the discussion was closed would be seen by Mr Nasir Sheikh as him being shouted at.

[80] I find on the balance of probabilities that it was unlikely that Mr Marsh shouted at Mr Nasir Sheikh in the course of the conversation. Accordingly Mr Nasir Sheikh’s allegation in this respect is not substantiated as unreasonable behaviour or conduct at work towards the Applicant.

Marsh Allegation 8. April 2015 – Audit incident

[81] There are two parts to this allegation which concern events surrounding an audit of a particular operator.

[82] The first part of the allegation that Mr Marsh behaved in an intimidating or confrontational manner in conducting the audit refers to the allegation, discussed in greater detail above in Marsh Allegation 3, that on 7 April 2015 Mr Marsh had told Mr Nasir Sheikh in front of colleagues that he had “pulled the job” from him. I found in that earlier discussion, in the category of belittling and humiliating conduct, that what occurred was not unreasonable behaviour or conduct at work toward the Applicant and that his action was reasonable management action carried out in a reasonable manner.

[83] The connection of this allegation with intimidatory or confrontational behaviour on the part of Mr Marsh was not the subject of oral evidence before the Commission and so that allegation is also not substantiated.

[84] The second part of the allegations surrounding this matter refers to Mr Marsh allegedly having followed on from the statement on 7 April 2015 that he had “pulled the job” with a further statement to Mr Nasir Sheikh in which he said in a loud and aggressive tone of voice “do not cross me or else” and that he had got up from a sitting position and stood over Mr Nasir Sheikh. 63 Mr Marsh strongly denies that he had ever said to Mr Nasir Sheikh “do not cross me or else” or that he was confrontational or aggressive.64 There is insufficient evidence before the Commission on the subject for a finding to be made that such conduct occurred. The matter was not the subject of cross-examination of either Mr Nasir Sheikh or Mr Marsh. This part of the allegation is not substantiated.

[85] I therefore find the two parts of this allegation are not substantiated as unreasonable behaviour or conduct at work towards the Applicant.

Marsh Allegation 9. June 2015 – investigation report incident

[86] The allegation is made that Mr Marsh, in a team meeting held in June 2015, made loud and rude comments to Mr Nasir Sheikh including “[r]ead the bloody report”, and that when the meeting was over Mr Nasir Sheikh requested Mr Marsh and Mr Richards to join him where he asked Mr Marsh;

“‘Why do you keep undermining me at every opportunity?’ He got up and stormed out of the room saying, ‘I don't have to listen to you. This is the policy’.” 65

[87] The team meeting was considering an investigation report that had not yet been finalised which had been undertaken by Mr Marsh and another Flight Operations Inspector, Tony Aylett. The antecedents to Mr Nasir Sheikh’s contentions are within his Internal Bullying and Harassment Complaint, made to CASA in November 2015;

“I challenged Mr Marsh's finding in this investigation. I had already issued an observation on the lack of proper pilot incapacitation training to [Operator 3] in November 2014. This was ignored by Mr. Marsh. I suggested continuing a complete investigation, not limited to Mr. Marsh's findings, which he took personally. He said "Read the bloody report". It was after this meeting when I requested Mr. Marsh to stay back, and discuss his behaviour in the presence of the Team Leader that he rudely walked off.” 66

[88] Mr Nasir Sheikh’s oral evidence on the subject gives the further context that the team meeting was discussing an investigation report into an aircraft incident in which the captain was sick and was “not on his seat even when the aircraft landed and stopped at the gate. His statement said that he was sitting at the back and there’s statements that the cabin crew came in, he was vomiting, he was in foetal position, he was sick, and I felt this was very unsafe.” 67

[89] Evidently Mr Nasir Sheikh disagreed with the proposed investigation findings and sought to have them amended. In the course of the meeting he suggested that there may have been “reckless” behaviour, which is a particularly loaded aviation term, given that “reckless” behaviour is criminalised in aviation safety legislation. 68 Mr Nasir Sheikh’s evidence was that he used the term in relation to the conduct of the pilots concerned and not in relation to the inspectors who had prepared the report.69

[90] Despite this context, Mr Nasir Sheikh’s evidence does not address the question of how the statement forming the central allegation of “read the bloody report” came to have been said. That is, the precursors to the alleged words and what may have provoked the statement have not been sufficiently developed in Mr Nasir Sheikh’s evidence or in the evidence of any of the witnesses. Similarly there has been insufficient development in the evidence of the second part of the allegation that Mr Marsh had responded when Mr Nasir Sheikh tried to resolve the issue with “I don’t have to listen to you. This is the policy”.

[91] Mr Marsh’s response on the subject of the investigation and the allegations regarding the statements he is claimed to have made is extensive and includes his belief that Mr Nasir Sheikh had used the term “reckless” in respect of the conduct of the investigators;

“58. I assume Mr Nasir Sheikh is referring to a CTM meeting held on or about 9 June 2015. Prior to the team meeting CTM Richards requested the attendance of FOIs Tony Aylett, Derek Fox, Safety Systems Inspector (SSI) Bruce Reilly and me at a meeting to discuss a number of matters, including the findings of an investigation conducted by Mr Aylett and myself into a crew incapacitation event involving [Operator 3]. … At the meeting, both Mr Aylett and I delivered our findings and recommendation that no further action be taken against the operator due to a lack of evidence to support the alleged breaches of the regulations.

59. When the investigation findings were discussed during the meeting, Mr Nasir Sheikh became increasingly outspoken to the point where he said openly that "you [i.e. the investigators] are reckless". He repeated this claim on a number of occasions and I observed that the other attendees were becoming increasingly concerned by the Applicant's claims and his conduct. Mr Nasir Sheikh also said openly that our investigation had not been conducted correctly. At the time I found Mr Nasir Sheikh's comments all the more curious as he had not been involved in any part of the investigation or interviews with the relevant operator's staff.

60. In response to the Mr Nasir Sheikh's assertions, I recall FOI Aylett said words to the effect of "what, would you have us find them guilty with no evidence? ". It was my impression that FOI Aylett was very upset by Mr Nasir Sheikh's comments particularly as an allegation of recklessness in the aviation context is a most serious allegation to make. I was similarly troubled by Mr Nasir Sheikh's claims but knowing that he was prone to making such outbursts I did not place as much weight upon his views in this instance.

61. FOI Fox, who attended the meeting requested by CTM Richards on the basis of his experience in investigations, also supported FOI Aylett and my recommendations by saying that he was a trained investigator and that based on his experience the investigation process was sound. Mr Nasir Sheikh angrily responded with words to the effect that "he was a trained investigator". FOI Fox informed me that after the meeting Mr Nasir Sheikh had gone to his desk and pushed his investigator qualifications in front of him and said something along the lines that "these are my qualifications". FOI Fox also told me that he took offence at Mr Nasir Sheikh's conduct.

62. At the conclusion of the meeting, Mr Nasir Sheikh asked that CTM Richards and I stay behind whereby he almost immediately made the claim to me that "you always undermine me". I interpreted his tone as aggressive and confrontational in that he was speaking loudly, he was visibly agitated, he was not prepared to listen to either me or CTM Richards and he was unable to control his emotions. ...

63. I recall being frustrated at Mr Nasir Sheikh's conduct and then saying to CTM Richards, "I don't have to put up with this, it's your problem Owen". I then left the meeting room rather than risk the situation further escalating.” 70

[92] The CASA Internal Investigation Report included these references to the circumstances and conduct of the meeting;

“ Mr Richards reported that he called a meeting with Mr Fox, Mr Aylett, Mr Marsh and Mr Nasir Sheikh to discuss the findings of an investigation that Mr Marsh and Mr Aylett had undertaken.

• Mr Richards reported that Mr Nasir Sheikh had not been part of the investigation but was present at the meeting for developmental purposes.



• Mr Richards further reported that Mr Nasir Sheikh became aggravated during the meeting due to concerns with the investigation and stated that it was "reckless".



• Mr Richards reported that the meeting was finalised and Mr Marsh, Mr Nasir Sheikh and himself remained in the room. Mr Nasir Sheikh continued to get aggravated due to his concerns and again stated that it was "reckless". He further reported that this appeared to inflame Mr Marsh who then walked out of the room.



• Mr Richards reported that he spoke to Mr Nasir Sheikh about his communication style and the use of the word "reckless" once Mr Marsh had left the room and stated that he needed to be mindful of how he communicates in these situations.



• Identified witness Mr Fox reported that he attended a meeting scheduled by Mr Richards to discuss the findings of an investigation Mr Marsh had been involved in. Mr Fox further reported that during this meeting Mr Nasir Sheikh referred to Mr Marsh and another FOI as being "reckless".



• Mr Fox reported that after the meeting he pulled Mr Nasir Sheikh aside and stated that he was incorrect as the investigation followed due process. He further reported that Mr Nasir Sheikh accused them of using incorrect techniques. Mr Fox reported that he stated that he is an investigator and the process they followed is correct. Mr Fox further reported that a short time later Mr Nasir Sheikh returned to his desk, slammed down a set of papers and stated "here are my qualifications".



• This incident appears to be a professional disagreement between both Mr Nasir Sheikh and Mr Marsh which was managed by their Certificate Team Manager, Mr Richards, in an appropriate manner.” 71

[93] In his evidence, Mr Marsh stated it was his clear recollection that the meeting had been discussing the investigation report and that Mr Nasir Sheikh had said “that is reckless” and that this was not in relation to the pilots being investigated because “when someone says to you, "Well, that's reckless", then I assume he's talking about me and the investigation, not about a third party.” 72

[94] Further, it was his evidence that the investigation team had not recommended litigation against the duty holders because a breach could not be proven; and that that recommendation had been accepted by CASA’s Coordinating Enforcement Committee. 73 His recollection was that the team meeting in June 2015 had been for the purpose of reporting back to the team before the investigators went to the Coordinating Enforcement Committee with their recommendation.74 His evidence in response to Mr Nasir Sheikh’s contention that the aircraft should have immediately returned to its point of departure spoke to the question not of what a different pilot may have done, but rather to what was proven about the duty-holders through the investigation;

“That might be what I might have done. It might be what Tony might have done. It might be what Mr Sheikh might have done. However, it's not evidence of a breach. It may be that you might consider that it was poor decision making. However, there are many decisions to a problem and outcomes that can occur and different processes that can be followed. So when we went through the investigation and we asked specific questions of the first officer as, "Did you feel the captain was incapacitated", the first officer at every question, stated that he did not. He also stated that the captain at all time was performing his duties, except for when the first officer assisted him by lowering the flaps on the approach because the captain was suffering pain in his stomach area. The cabin manager verified that by saying that she felt that the captain was always in command. It wasn't until after the aircraft was shut down at the gate that the captain, after all the passengers deplaned, went into their front row seat and lay across the seats and was in so much pain that an ambulance was eventually called and took him off to hospital. As a result of our investigation we did send two letters – three letters, one to the first officer, one to the captain and one to the company, outlining the results of the investigation and the company then within their own internal processes, determined that there would be retraining required in various areas and that, and that crew were retrained.” 75

[95] Mr Marsh conceded that he may have misunderstood who was the subject of Mr Nasir Sheikh’s reference of a person or people being “reckless”; specifically that it could have been the operator or the pilots. 76

[96] Mr Aylett was not cross-examined in respect of any matters, and his witness statement records the following relating to the meeting held on 9 June 2015;

“21. The Applicant remained adamant that the investigation had not produced a satisfactory outcome. His views remained unchanged even after I pointed out to him that he did not have access to all the evidence and that all three team members involved (me, CTM Richards and FOI Marsh) had independently come to the same conclusion and agreed on the investigation outcomes.

22. I felt frustrated at the Applicant's continued disagreement with the investigation outcome, especially as he had not been directly involved in the investigation. However, I decided not to verbalise the frustration and made no further comment and took no further part in the discussion.” 77

[97] The other people in the team meeting were Mr Richards and Derek Fox.

[98] Mr Richards’ witness statement records Mr Nasir Sheikh having been emotive, loud and beginning to use provocative language in the meeting, including “accusing FOIs Aylett and Marsh of being ‘reckless’ in their conduct of the investigation although he could not identify any specific basis for this very serious assertion”. 78 The alternative proposition, that Mr Nasir Sheikh may have been referring to the pilots when he employed the term “reckless”, was not put to Mr Richards in cross-examination.79

[99] Mr Fox recalls that Mr Nasir Sheikh “accused FOIs Tony Aylett and Peter Marsh of being "reckless" in their investigative methodology” 80 but he rejected in his oral evidence the characterisation that the term could have been used in respect of the pilots involved.81 While Mr Marsh denies saying the words “read the bloody report” in the meeting,82 he does not think the term, if it were used, would tend to undermine a person;

“Do you think it tends to undermine, that particular statement?---No.
You don't think if you said to someone in a meeting, "Read the bloody report" in front of the team members, that would tend to undermine that person?---No.
Okay?---It would tell them to read the report.” 83

[100] The evidence leads to a finding that there was plainly, and at the very least, a spirited disagreement within the team meeting about what should be done to dispose of the investigation into the particular incident. Mr Nasir Sheikh obviously disagreed with the findings made by the investigators and their proposed recommendation to the coordinating enforcement committee. At its most benign, as would be sought by the Applicant, Mr Nasir Sheikh used the term “reckless” in relation to the behaviour of the pilots being investigated. However the consistency of evidence does not lead to that finding.

[101] Instead Mr Marsh’s evidence is directly that he heard it at the time as being used in relation to the investigators, with him being one of them. While Mr Marsh correctly conceded in cross-examination that, in hindsight, he may have misunderstood what Mr Nasir Sheikh intended by the word, that concession does not change what he thought he heard at the time. Mr Richards’ evidence is that it similarly was used in relation to the conduct of Mr Marsh and Mr Aylett; and Mr Fox’s evidence is that it was used in the same context. Of the people present at the meeting, only Mr Nasir Sheikh believed at the time that the word was used in a different context.

[102] I therefore find on the balance of probabilities that when Mr Nasir Sheikh used the term reckless he used it in relation to the findings of the investigation, and the investigators, one of whom was Mr Marsh. In that context, given the meaning of the term in aviation law, with which each person in the meeting would be familiar, the term likely had incendiary effect, whether deliberately so or not.

[103] The consistency of the evidence also leads to the view that there was frustration on the part of some or all of the participants in the meeting; however the evidence does not lead to a finding that Mr Marsh said to Mr Nasir Sheikh either “read the bloody report” or “I don’t have to listen to you. This is the policy” in response to Mr Nasir Sheikh’s endeavours to resolve the issue.

[104] This allegation has not been substantiated as unreasonable behaviour or conduct at work towards the Applicant.

Marsh Allegation 10. September 2015 – Quick Reference Handbook approval incident

[105] The allegation is made by Mr Nasir Sheikh that Mr Marsh shouted at him on 22 September 2015, and that around the same time had tried to intimidate him into approving Operator 3’s request to replace a paper-based Quick Reference Handbook with an electronic version.

[106] Quick Reference Handbooks are an essential part of cockpit safety and in September 2015 Mr Nasir Sheikh was dealing with a request by an operator to replace a paper-based quick Reference Handbook “with a copy of the handbook contained on the iPad”. 84 At the time Mr Marsh was out of Australia on business and Mr Richards assigned Mr Nasir Sheikh the task of assessing the request, who then looked over the safety case and sought further information and a meeting.

[107] Mr Marsh had seen the operator’s original proposal and at first had held the view that the proposed change would require CASA approval. Later, and after discussion with another inspector, Mr Aylett, he took the view that CASA approval would not be required. After Mr Nasir Sheikh raised his concerns with Mr Marsh about the need for approval, Mr Marsh consulted with another person, Mr Farquharson, who thought the safest course of action was to include it in the approval for the avoidance of doubt. 85

[108] The operator initially went along with Mr Nasir Sheihk’s request for a meeting, agreeing to one on 23 September 2015. However, on 15 September, the operator’s attitude changed, advising Mr Nasir Sheikh that its preference was now to cancel the meeting and escalate it to one involving more senior staff, including Mr Richards on CASA’s side. 86

[109] During the relevant period, Mr Richards was on leave, and Mr Marsh was acting Certificate Team Manager, at least for the period between 21 September and 1 October 2015. 87 Another person, David Smith, was the acting Team Leader between 15 September and 20 September 2015. Mr Nasir Sheikh puts forward about this that “no official memo was issued (as would normally be the case).”88 If this amounts to a challenge by Mr Nasir Sheikh either that he was unaware of Mr Richards’ absence or that Mr Smith and Mr Marsh were somehow not validly appointed to be the Acting Team Leaders for the period, I do not accept the proposition. There is ample evidence that all concerned understood and accepted that Mr Richards was absent and that Mr Smith and Mr Marsh were acting in his stead.

[110] Mr Nasir Sheikh’s evidence is that he provided Mr Marsh with copies of all the related communications and was requested by him on 14 September to outline his concerns regarding the operator’s requests, to which Mr Nasir Sheikh responded the following day that the meeting was simply “to discuss the request in detail. Nothing specific”. Mr Marsh requested further details, which led to this exchange by email;

• First from Mr Nasir Sheikh;

“Hi Peter,

As I mentioned earlier, there are no specific questions.

There is a need to discuss their safety case, as part of my assessment.

We can discuss on your return.

Kind regards,
Riz”  89

• To which Mr Marsh responded;

“Good Morning Riz,

My concern is that if you dont have any specific issues with the application, then you are obliged to issue the approval.

In my view the safety case is quite clear and complete for the size and scope of this task. So unless you have a specific concern that indicates they do not comply with the legislation I recommend you go ahead and issue the approval.

In addition you need to be aware of the risk to CASA of not issuing the approval if you do not have valid grounds. The runway change checklist is a positive safety enhancment that is being delayed. If [Operator 3] were to have an incident that identified this as a root cause, CASA would be exposed.

Under current regulations [Operator 3] are not required to have a paper copy of the QRH or checklist. They have exceeded the redundancy requirements of [Civil Aviation Order] and have well developed and proven experience with EFB use.

If you do have a specific concern then please advise me and I will be happy to assist.

Regards
Peter” 90

[111] Mr Marsh’s evidence is that in the course of discussing another matter with the operator on 16 September 2015, Operator 3’s Head of Flying Operations raised concerns with him that it did not consider it to be acceptable for CASA to call meetings of the kind proposed by Mr Nasir Sheikh “with no defined scope, agenda or questions/issues identified to indicate a deficiency in the application”. 91

[112] On 21 September 2015, Mr Marsh emailed Mr Nasir Sheikh to say that he had received an enquiry from the operator on the progress of the requested approval, and sought advice from him about the status of the approval and any outstanding issues. 92 Mr Nasir Sheikh responded by email with the following;

“Hi Peter,

Refer previous emails on the subject.

I have reservations on their safety case. [Operator 3] requested we postpone the meeting to discuss the said task, this will now be planned on Owen's return. The ball is in [Operator 3’s] court, my assessment is not complete.

Kind regards,
Riz” 93

[113] The evidence does not resolve the possible inconsistency between the operator saying to Mr Nasir Sheikh on 15 September 2015 that it would cancel the meeting with him and await the return from leave of Mr Richards, and its later request of Mr Marsh for advice about the status of the approval.

[114] Mr Nasir Sheikh then alleges the following exchange between the two, saying that following the exchange he was quite shaken and felt that Mr Marsh had tried to intimidate him into approving something; 94

“63. Shortly after this, Mr Marsh approached me in the open plan office area. Ms Debbie Winter, and possibly Mr Michael Rossiter, Mr Alex Gonzales and Mr Bruce Reilly were present.

64. Mr Marsh shouted at me, "What are your concerns, why don't you approve it?! Tell me now". He was standing over me while I sat at my desk. I repeated my general considerations as part of due diligence, but he got angrier saying "I want specific concerns".

65. Mr Marsh then shouted at me words to the effect of:

a. "They don't want to talk to you!"
b. "There is going to be no meeting!"
c. "I told you it is OK to approve!"
d. "We all agree!"
e. "Everybody thinks so!"

66. I kept my voice down and said to him, "Who do you mean by 'we' and ' everybody'? Are you referring to [Operator 3]?"

67. He got even more upset and said angrily, "Are you accusing me?"

68. I said, "My assessment is not complete. You can take over the job as the Team Leader and approve it if you wish".

69. This seemed to offend him too. He got even angrier and said, "You have a shotgun approach".

70. I asked him, "Can you be specific, so I can understand better what you mean by that, and learn?'' I took out a notebook to take notes.

71. At this he sort of backed down slightly, though still looking threateningly at me. He said, "Show me what you mean". He opened the safety case attachment on his computer. I went over to his desk and tried to explain. But he was adamant that he was right and it was "All good".

72. To end this tirade of verbal abuse, I suggested that he should send me an email and I will try and respond by the end of the day. He said, "You can submit it by tomorrow".” 95

[115] Mr Nasir Sheikh argues that Mr Marsh’s questions about the matter, which had covered a period of several days by that time, had become harassment, giving this evidence in cross-examination, with particular reference to the meeting that had, by 22 September 2015, been cancelled;

“On that issue, on that meeting, I want to put to you that what occurred, that Mr Marsh approached you and entirely reasonably said, "Look, you need to tell me what your concerns are about this application, because I've had a manager - a senior manager at [Operator 3] phone me up and saying 'You're holding meetings without agendas and why should we be put to the cost and expense of having such a meeting?'". Now, do you accept that that is the circumstance by which Mr Marsh approached you for information? --- No.

What do you say? --- Mr Marsh had been pursuing it, because it already will be accepted. We got the application, I believe, on 7 September. After that, Mr Marsh had been sending me emails when he was not part of the assessment team; he's not part of the - he is not an acting team leader in [Asia] and he had been sort of harassing me all along. I had been sending him emails which are all on record. Even on that morning, I sent him an email saying, "We have not talked about it. They have just presented something with lots of questions. Once we have a meeting and we have answered those questions, I will have specifics and I will give them to you." But he said, "No. No, you give it to me now. Give it to me now", in that sort of loud voice in front of everybody and he must have said it six - eight times and I told him, "I can't give you something I don't have. We have not discussed it. The people are not available."

The issue was you didn't know what the concerns were about the safety case. That's a fair assessment, isn't it? You didn't know; you were able to provide a technical reason why you had a concern about the case? --- Basic safety case was not based on what it was originally - - -

You had a misconception that it was your role to ensure that the proposal increased safety levels, rather than simply did not contribute to a safety risk? --- The way CASA works and the way we do it is to make sure it meets the acceptable means of safety. It should be at least (indistinct). It should not be less. If it is more, that is good.” 96

[116] Mr Marsh’s witness statement on the subject notes that in the course of discussing another matter with the operator’s Head of Flying Operations (HFO), the person indicated a concern that they “did not consider that it was acceptable for CASA to call meetings of the kind proposed by Mr Nasir Sheikh with no defined scope, agenda or questions/issues identified to indicated efficiency in the application” 97 and that “the HFO further said that the meeting was cancelled because no specific deficiencies had been raised by CASA and it was an unnecessary cost burden to the operator to attend the meeting in those circumstances. In light of the concerns raised by the HFO, I undertook … that I would look into the matter when I returned to the office”.98

[117] Prior to the argument between the two, Mr Marsh had informed Michelle Massey, CASA’s Regional Manager Southern Region, about the operator’s concerns. Ms Massey gave evidence that;

“I recall that, prior to the altercation between Mr Nasir Sheikh and Mr Marsh I had a meeting with Mr Marsh where he had indicated to me that [Operator 3’s] management had raised concerns that a meeting had been requested by CASA to discuss the regulatory approval which had been the source of the disagreement. The approval in question was for a Flight Check System for the [aircraft]. Mr Marsh advised me that [Operator 3] were concerned that a meeting had been requested to discuss this particular approval in circumstances where no specific deficiencies in [Operator 3’s] application had been communicated to them. Mr Marsh indicated to me that [Operator 3] were concerned that a meeting with no structured agenda for discussion would not be a productive use of senior … management's time especially when they would have to incur the regulatory fees associated with attending such a meeting. During that meeting, I recall that I instructed Mr Marsh to make enquiries with Mr Nasir Sheikh as to the precise nature of his concerns so that these could be relayed to [Operator 3]. I cannot now recall the date on which this meeting occurred.” 99

[118] When she reviewed the status of the application, along with technical information and emails to and from the operator, Ms Massey “formed the opinion that the issues relating to the [Operator 3] application which Mr Nasir Sheikh had identified in his communications with Mr Marsh were not sufficiently clear and specific which could lead to [Operator 3] being confused as to the nature of CASA's concerns.” 100

[119] Mr Marsh’s evidence on this subject includes this defence about the scope of his interaction with Mr Nasir Sheikh;

“83. I was concerned about the [Operator 3] relationship…. The HFO is the most important point of contact for CASA in regard to the flying operations safety aspects of an operator's business. For this reason, I was concerned to ensure that CASA's relationship with the new HFO began in a positive way and that [they] would not have any cause to criticise CASA for its dealings with [Operator 3].

84. In light of those concerns, I consulted with the Southern Regional Manager, Michelle Massey, and advised her of my discussions with the HFO. She indicated that she had concerns about CASA's relationship with [Operator 3] and asked me to follow up [Operator 3’s] concerns and identify the specific problems, if any that Mr Nasir Sheikh had identified with the [Operator 3’s] proposal. I did this by again emailing the responsible officer, Mr Nasir Sheikh on the afternoon of 21 September 2015 asking him for an update on the progress of the approval and any outstanding issues. Mr Nasir Sheikh responded on the morning of 22 September to the effect that he had reservations concerning [Operator 3’s] safety case although he did not identify what those were. Mr Nasir Sheikh also indicated that [Operator 3] had postponed the proposed meeting pending the return of the CTM. ...

85. After receiving Mr Nasir Sheikh's email response, I turned to him in our work area (we sit adjacent to each other), and initiated a conversation with him in which I tried to elicit more specific details concerning his reservations about the safety case. I began the conversation by advising him that the HFO of [Operator 3] had contacted me with concerns about the lack of detail about the concerns with the safety case, and that the Regional Manager had asked me to establish the nature of the those concerns so that the assessment of the application could proceed. I do not now recall precisely what was said during this exchange, however, I do recall that Mr Nasir Sheikh's initial response was both aggressive and defensive. I recall that he deflected my attempts to obtain specific details by repeating words to the effect of:

(a) "I have no specific concerns"; and
(b) "The matter should wait until Mr Richards returns".

86. I attempted to deal with Mr Nasir Sheikh's refusal to supply the detail that I had sought from him by explaining that CASA had an obligation under Administrative Law to either approve or reject an application in a reasonable timeframe. Additionally, if there are any deficiencies in an application CASA is obliged to draw those deficiencies to the attention of the operator in order for the operator to be given an opportunity to address them. In the course of trying to explain this to him, I used the term "we cannot take a shot-gun approach". This term was used, in the context of explaining the need to provide an operator with specific feedback about any deficiencies or safety concerns regarding an application so they can be dealt with in a timely manner.

87. While I was attempting to explain this to him, Mr Nasir Sheikh became more agitated, and talked over the top of me loudly with an angry look on his face. He began to accuse me of pressuring him to approve the application. At some point, he got out of his chair and came over to my desk and stood over me repeating his allegations that I was attempting to pressure him into issuing the approval. I assured him on a number of occasions that I was doing no such thing by saying words to the effect of "I am not asking you to approve the application just either make a decision or provide me with the deficiencies so that I may assist you.". Ultimately, in an attempt to de-escalate the situation, especially in light of Mr Nasir Sheikh's presence at my work space, I disengaged from the conversation by turning away from Mr Nasir Sheikh and focussing on my computer screen. At that point, Mr Nasir Sheikh returned to his own work station and the exchange ended.” 101

Richards Allegation 15. From September 2015 – assignment of inferior work

[264] Mr Nasir Sheikh makes an allegation, essentially in two parts, that Mr Richards assigned him inferior work from some stage in September 2015.

[265] The first of these parts is as set out earlier, in Richards Allegation 12, that between September 2015 and April 2016 Mr Nasir Sheikh was kept from significant work associated with Operator 3 and the aircraft it flew, with Mr Marsh being preferred. 209 I found that allegation not to be substantiated, with Mr Richards’ decisions being reasonable and appropriate. No additional evidence has been offered in relation to this separate allegation. This part has not been substantiated by the Applicant.

[266] The second part is an allegation that between 5 and 10 April 2016, and then again on 4 May 2016, Mr Nasir Sheikh asked Mr Richards about whether there were any particular tasks he could be given to complete, and that in particular;

“147. From 5 to 10 April 2016, I emailed and verbally requested Mr Richards asking whether there were any role specific tasks for me to complete. It is important to conduct audits to remain current. I volunteered to do a ramp check along with an observation of [Operator 3’s] fatigue risk management system training in Sydney. Around 29 April 2016 Mr Richards added me to the existing inspectors for conducting one ramp check in Melbourne as part of the [Operator 3] annual audit. This was the extent of my involvement with the [Operator 3] audit.

148. On 4 May 2016 I sent an email to Mr Richards asking for additional tasks because I had capacity. Mr Richards then asked me to review a 4-page document submitted by [Operator 3].” 210

[267] Mr Nasir Sheikh’s complaint in this regard is particularly connected with an audit planned to be conducted by CASA of a particular operator, which is dealt with in greater detail in Richards Allegation 4. Mr Richards’ response on these matters is in several parts; firstly that Mr Nasir Sheikh had been absent on personal leave during the period of planning for the audit, and his expected return date was open to some change; and secondly, that by the time he returned, he engaged him as would be expected;

“Mr Sheikh said that after he returned from leave, he sent you emails saying that he had capacity to do additional tasks, is that correct?---And that's where I required him to do - scheduled for some ramp checks and also there was some FRMS work, if I recall as well.” 211

[268] As with the matters set out in Richards Allegation 4, the evidence surrounding this part of Mr Nasir Sheikh’s allegation, that from September 2015 Mr Richards assigned him inferior work, does not disclose unreasonable behaviour or conduct on the part of Mr Richards.

[269] Having found that neither part of the allegation has been substantiated, it follows the allegation itself has not been demonstrated to be correct.

[270] This allegation has not been substantiated as unreasonable behaviour or conduct at work towards the Applicant.

[271] The product of the foregoing analysis of the 30 allegations maintained by Mr Nasir Sheikh against Mr Marsh and Mr Richards, as set out in his Outline of Submissions, is that I have found only one instance of unreasonable conduct or behaviour, albeit without the attendant finding that the conduct created a risk to health and safety. That finding was in relation to Marsh Allegation 5, in which I found that Mr Marsh’s comment that Mr Nasir Sheikh would not be made a manager was unreasonable behaviour or conduct at work towards the Applicant.

[272] No other findings of unreasonable conduct or behaviour have been found by me in relation to the other 29 allegations.

[273] Accordingly, Mr Nasir Sheikh’s application fails for the reason that he has not met the jurisdictional pre-requisite of there having been repeated unreasonable conduct by an individual, or group of individuals, towards a worker and where that behaviour creates a risk to health and safety. In particular, I have not found that there has been repeated unreasonable conduct, or that such conduct as has been found created a risk to health and safety.

[274] An order dismissing Mr Nasir Sheikh’s application is published at the same time as this decision.

RECOMMENDATION

[275] Although I have not found that Mr Nasir Sheikh has been bullied at work, the state of the relationships between him and the two people named, Mr Marsh and Mr Richards, is a matter of concern to me, and I would expect, to CASA. In this regard, I must respectfully endorse the opinion expressed by Deputy President Gostencnik in the recent matter of Purcell v Farah and Mercy Education Ltd T/A St Aloysius College, 212 in which the following was said;

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

[276] Replacing the words “education” and “educational” in the above passage with “aviation safety” would render a paragraph entirely consistent with both the evidence in this matter, as well as my conclusions. There is nothing within the working relationships of Messrs Nasir Sheikh, Marsh and Richards that should be incapable of self-resolution, yet the relationships are presented as such.

[277] In my view, each of the protagonists should themselves strive for mutual accommodation, as should CASA. I am unpersuaded that this has happened to date. Instead, it seems to me, that each has been content to pitch their strongly held and very positional views to each other, their managers and me, as both being right about themselves, as well as the matter being one of their rights to be advanced and protected. Such lack of introspection and accommodation of each other will only lead to further conflict and one, two or three of the protagonists leaving CASA’s employment before they would otherwise desire to leave.

[278] The analysis I have conducted of the evidence before the Commission leads to me expressing the following material opinions;

• There is, at the least, a mutual antipathy between Mr Marsh and Mr Nasir Sheikh, with each appearing to distrust the professional and other judgement of the other; and



• Both Mr Marsh and Mr Nasir Sheikh likely exhibit strong personality traits, and especially toward each other. Mr Nasir Sheikh seems not to practice active listening and talks over things about which he does not agree. Mr Marsh appears to make definite statements, at least in a firm tone, with some statements interpreted by Mr Nasir Sheikh as being intended to close the discussion of a matter. Each appear to be not especially sensitive to the needs of the other.

[279] Mr Richards may not have recognised that with the introduction of Mr Nasir Sheikh to his team in 2014 that the interpersonal dynamics of the team either shifted or were likely to shift, and that it may be that decisions to manage the team according to traditional patterns may not be sustainable. In particular, he may have insufficiently recognised that Mr Nasir Sheikh may well have a point with matters that he raises and that, at the least, his point should be heard, reflected on and answered.

[280] Ms Massey, who is more senior to Mr Richards, was not cross-examined about her evidence and so it is difficult to express an opinion about her efforts to actively manage the overall situation. Even so, it is apparent that successful management of her region is likely to require a greater level of injection from a person at her level aimed at stabilising, controlling, overcoming and resolving what is demonstrably a very unsatisfactory situation.

[281] The main actors in this matter, with the exception of Ms Massey, are very experienced pilots, perhaps towards the end of their careers. The question arises of whether the conflict that has arisen is, to an extent at least, cultural in the sense that the people concerned may have come to CASA not used to having their professionally formed views subject to question by others, even by co-workers with the same professional background. After hearing all the evidence in the matter, I cannot rule out that possibility as a driver or contributor to the observed behaviours and conduct.

[282] CASA's desire to hold a performance review conversation with Mr Nasir Sheikh is reasonably held.

[283] To hold such a conversation and to impart views in the meeting, including those of a negative nature, is not bullying. It is not even performance management in the way that term is used within the Authority’s enterprise agreement, the Civilian Aviation Safety Authority Enterprise Agreement 2012 – 2014. Instead it is good management practice, and the conversation should take place at the earliest opportunity without constraint.

[284] The Commission would be critical of an employer at some later and more significant point in a disciplinary or dismissal process if such a conversation had not been held at this time or earlier. That being so, the Commission could hardly be critical of an employer which desired to hold a performance review conversation that was reasonably grounded and conducted.

[285] Mr Nasir Sheikh's avoidance of the conversation is questionable and close to being unreasonable behaviour on his part. He needs to commit to participating in such a conversation without constraints and free of endeavours to limit what is discussed. If negative feedback needs to be given to him about perceptions of his work performance, he needs to hear the feedback and respond to it openly. If he thinks the feedback is wrong, then he should say so.

[286] There is not a clear view available to the Commission of the state of the workplace culture within the team or whether other participants in the team see dysfunctional behaviours and conduct, or bullying, however described. Perhaps such information is available to CASA, through the means of a workplace culture survey or other tool.

[287] Based on the foregoing opinions, I make the following recommendation to the parties, that is Mr Nasir Sheikh, the persons named, Mr Marsh and Mr Richards, and to their employer, CASA;

• The matters that are the subject of this Recommendation should be the subject of discussion and agreement set out in a written agreement between each of the parties.



• Should Mr Nasir Sheikh or either of the persons named, Mr Marsh or Mr Richards, decline or fail to enter into such an agreement, CASA should implement the other parts of this Recommendation as soon as possible.



• CASA should design and implement a three-month program aimed at improving the state of relationships in the team in which Mr Nasir Sheikh and Mr Marsh work (the Workplace Culture Improvement Plan). Mr Nasir Sheikh, Mr Marsh and Mr Richards should be involved in the design and implementation of the program, as should Ms Massey. The Workplace Culture Improvement Plan should include the following elements;

• Training, perhaps both individual and collective, aimed at building the self-awareness of each of Mr Nasir Sheikh, Mr Marsh and Mr Richards about their individual behaviours and conduct and how they may be perceived by or impact others; what are best practice workplace behaviours and conduct and how to deliver them;



• Conducting a confidential workplace culture survey at least within the team in order to establish baseline team-wide perceptions about the presence of dysfunctional behaviours and conduct;



• Committing to sharing the results of the survey with all members of the team and working collaboratively with the wider team to formulate a response to any suboptimal findings of the survey;



• Undertaking a facilitated workshop with all members of the team in order to gain consensus about the avoidance of bullying and what are acceptable or unacceptable team norms of behaviour and conduct. Most likely such a workshop should be conducted after the results of the workplace culture survey are available and have been digested by team members;



• Development of an agreed team work allocation protocol, in order to build Mr Nasir Sheikh's confidence that work is being fairly and appropriately allocated to him.

[288] At this time, I do not make the recommendation that a facilitated or mediated workshop should be conducted only with three direct parties in order to discuss and agree multi-lateral behavioural change, mainly because I consider a pre-requisite would be for each to accept the findings of this decision and to use those as a baseline for corrective action. Based upon my impression of the parties both in conciliation and the hearing, I think it is unlikely at this time that each would accept my findings as the base of future discussion. If I am wrong in that view, and my findings are accepted, or mostly accepted, my view about the utility of conducting a facilitated or mediated workshop only with the direct parties in order to discuss and agree multi-lateral behavioural change would change.

[289] I further recommend that within one month of the date of this decision, Mr Nasir Sheikh should participate in a PACS meeting with Mr Richards. The meeting should be conducted in accordance with CASA’s standard procedures on such matters. There is no objective need for Mr Nasir Sheikh to have a support person in attendance on his behalf. The apprehension that critical comments may be spoken in the meeting is not unexpected for such meetings. If CASA has critical things to put to Mr Nasir Sheikh, then they should be put. Generally, and on the assumption that the matters discussed are reasonably founded and communicated, such is not bullying, however it would be reasonable management action. If a support person is to attend, the stopping and starting of the meeting as a mechanism to limit the breadth of what is discussed should not occur.

[290] I recommend that within one month of the date of this decision, Mr Richards should prepare a forward work plan for Mr Nasir Sheikh setting out as comprehensively as it can the sorts of work he may expect to do in the coming 12 months.

[291] In order to give effect to the Recommendation, each of Mr Nasir Sheikh, Mr Marsh, Mr Richards and CASA are to advise the Commission and each other in writing of whether they accept its terms. If they do, CASA should work with each to conclude the proposed written agreement within a month of the date of this decision.

[292] The Commission is available to assist the parties to the conclusion of the proposed written agreement upon request.

COMMISSIONER

Appearances:

Ms N Sim and Ms M Anthony of Professionals Australia for the Applicant.

Mr A Carter for the Respondent.

Hearing details:

2015.

Melbourne:

August 3, 4.

Final written submissions:

Applicant: 31 August 2016.

Respondent: 7 September 2016.

 1   Mac v Bank of Queensland Limited & Others[2015] FWC 774 [79].

 2   Fair Work Act 2009 (Cth) s.789FC(2).

 3   Mac v Bank of Queensland Limited & Others[2015] FWC 774[84].

 4   Bowker & Ors v DP World Melbourne Limited & Ors [2014] FWCFB 9227, see [50], [53].

 5   Re SB[2014] FWC 2104 [43].

 6   Explanatory Memorandum, Fair Work Amendment Bill 2013 (Cth), 29.

 7   Mac v Bank of Queensland Limited & Others[2015] FWC 774[86].

 8   Bowker & Ors v DP World Melbourne Limited & Ors [2014] FWCFB 9227[31].

 9   Re SB[2014] FWC 2104 [41], [43]

 10   Mac v Bank of Queensland Limited & Others[2015] FWC 774 [89]-[90]; with reference to Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 [76].

 11   Ibid [91]; with reference to Bropho v Human Rights & Equal Opportunity Commission (2004) 135 FCR 105 [79].

 12 Ibid [92].

 13   Re SB[2014] FWC 2104 [44]–[45].

 14   Mac v Bank of Queensland Limited & Others[2015] FWC 774 [95].

 15   See Exhibit A15, Applicant’s Outline of Submissions, at [10], in respect of the allegations against Mr Marsh; and [14], in respect of the allegations against Mr Richards.

 16 Exhibit A1, Witness Statement of Rizwan Nasir Sheihk, [2]–[4].

 17   Exhibit R5, Witness Statement of Peter Marsh, [1].

 18   Ibid [2]–[6].

 19   Exhibit A1 Attachment RS-2.

 20   Ibid [13]-[15].

 21 Exhibit R5 [21].

 22 Ibid [22].

 23 Ibid [29].

 24   Ibid [28]

 25 Ibid [31].

 26   Exhibit A1 Attachment RS-02.

 27   Exhibit R7, Witness Statement of Owen Richards, [19].

 28   Ibid [20]–[21].

 29 Ibid [22].

 30 Ibid [23].

 31 Exhibit R5 [32].

 32 Exhibit A1 [18].

 33 Exhibit R5 [38].

 34   Exhibit R3, Witness Statement of Judith Keogh, Attachment JK–7A 12.

 35   Ibid Attachment JK-7A 13.

 36   Ibid Attachment JK-7A 12.

 37   Ibid Attachment JK-7A 12.

 38   Transcript PN 759.

 39   Ibid PN 1205.

 40   Exhibit A1 [29]-[33].

 41   Ibid [36]-[37].

 42 Exhibit R5 [49].

 43   Transcript PN 1346.

 44 Exhibit R5 [51].

 45 Ibid [49].

 46 Exhibit A1 [48].

 47 Exhibit R5 [71].

 48   Exhibit R3 Attachment JK–7A 22.

 49   Ibid Attachment JK-7 11.

 50 Exhibit A1 [91].

 51 Exhibit R5 [122].

 52   Transcript PN 1625.

 53   Ibid PN 1626-1627.

 54   See, for example, Exhibit R3 Attachment JK-7A 10.

 55   Harris v WorkPac Pty Ltd[2013] FWC 4111 [73].

 56   Exhibit A1 [124(a)].

 57   Ibid Attachment RS-25.

 58 Exhibit R18, Witness Statement of Shawn Ottway, [29]-[32].

 59   Exhibit A15, Outline of Applicant's Submissions, [10(b)(i)]; Applicant's Closing Submissions [15(b)(i)].

 60   Transcript PN 730.

 61 Exhibit R5 [21].

 62   Macquarie Dictionary, Fifth Edition, Sydney, 2009, p.1526.

 63 Exhibit A1 [37].

 64 Exhibit R5 [48].

 65 Exhibit A1 [44].

 66   Exhibit R3 Attachment JK-7 12.

 67   Transcript PN 196.

 68   Ibid PN 350–356.

 69   Ibid PN 335-337.

 70   Exhibit R5 [58]-[63].

 71   Exhibit R3 Attachment JK 7A 15.

 72   Transcript PN 1185.

 73   Ibid PN 1216.

 74   Ibid PN 1226.

 75   Ibid PN 1193.

 76   Ibid PN 1229–1231.

 77 Exhibit R2, Witness Statement of Anthony Aylett, [21]-[22].

 78   Exhibit R7 [42 (a)].

 79   see Transcript PN 2122.

 80   Exhibit R9, Witness Statement of Derek Fox, [16].

 81   Transcript PN 2167.

 82   Ibid PN 1433.

 83   Ibid PN 1439–1441.

 84 Exhibit A1 [50].

 85   Exhibit R5 [76]–[77].

 86   Exhibit A1 Attachment RS-08.

 87   Exhibit R3 Attachment JK-7A 15; Exhibit R5 [82] and Attachment PM-17.

 88 Exhibit A1 [49].

 89   Ibid Attachment RS-09.

 90   Ibid Attachment RS-09.

 91 Exhibit R5 [80].

 92   Exhibit A1 Attachment RS-10.

 93   Ibid Attachment RS-10.

 94 Ibid [73].

 95   Ibid [63]-[72].

 96   Transcript PN 470–473.

 97 Exhibit R5 [80].

 98 Ibid [81].

 99   Exhibit R4, Witness Statement of Michelle Massey, [17].

 100 Ibid [18].

 101   Exhibit R5 [83]-[87].

 102 Ibid [88].

 103   Transcript PN 1566–1574.

 104   Exhibit R3 Attachment JK-7A.

 105   Exhibit R11, Witness Statement of Bruce Reilly, [13].

 106   CASA Response from an employer/principal, Form F73, Attachment 4.

 107 Exhibit A1 [55].

 108   Ibid Attachment RS-09

 109   Ibid Attachment RS-08.

 110   Ibid Attachment RS-09.

 111   Ibid Attachment RS-09.

 112 Ibid [59].

 113   Ibid Attachment RS-10.

 114   Exhibit A15 [10(d)].

 115   Exhibit A1 [82]-[88].

 116 Exhibit R5 [105].

 117   Transcript PN 545–553.

 118 Exhibit R5 [106].

 119   Ibid [107]–[109].

 120 Exhibit A1 [45].

 121   Ibid Attachment RS-07.

 122   Exhibit R5 [64]-[68].

 123   Exhibit R2 [11]-[16].

 124   Exhibit R9 [20]-[21].

 125 Exhibit A1 [92].

 126   Ibid Attachment RS-17.

 127 Exhibit R5 [126].

 128   Exhibit A1 [140]-[142].

 129 Exhibit R5 [130].

 130 Ibid [133].

 131 Exhibit R7 [117].

 132   Ibid Attachment OR-24.

 133   Exhibit R18 [47]-[48].

 134   Exhibit A12.

 135   Transcript PN 132–141.

 136   Amended Application, Form F72, dated 20 June 2016, 9.

 137   Exhibit R7 [1]–[7].

 138 Exhibit A1 [122].

 139 Exhibit R7 [87].

 140 Exhibit A1 [123].

 141 Exhibit R7 [62].

 142   Exhibit A1 Attachment RS–21.

 143   Ibid Attachment RS-21.

 144   Transcript PN 2113.

 145   Ibid PN 2120–2125.

 146   Exhibit A1 [96]; Transcript PN 87.

 147   Transcript PN 1902.

 148   Exhibit A1 Attachment RS–24.

 149 Exhibit R7 [88].

 150 Ibid [24].

 151 Ibid [63].

 152   Ibid [63]–[64].

 153   Exhibit A1 [143]–[146].

 154   Exhibit R7 [118]–[119].

 155   Ibid Attachment OR-25.

 156   Ibid Attachment OR-25.

 157 Ibid [120].

 158   Transcript PN 2103.

 159   Ibid PN 2088-2089.

 160   Exhibit A1 [138], as amended 22 September 2016.

 161   Exhibit R7 [111]–[112].

 162 Exhibit A1 [139].

 163 Exhibit R7 [113].

 164   Applicant's Closing Submissions [17(c)(i)].

 165 Exhibit R3 [16].

 166 Ibid [17].

 167 Exhibit R7 [30].

 168 Ibid [60].

 169   Exhibit A1 [98]–[99].

 170 Ibid [100].

 171   Exhibit R7 [64]-[65].

 172   Ibid Attachment OR-12.

 173   Ibid Attachment OR-12.

 174   Exhibit A1 [100]–[120].

 175   Exhibit R7 Attachment OR-12.

 176 Exhibit A1 [98].

 177 Exhibit R7 [79].

 178 Ibid [63].

 179   Exhibit A1 Attachment RS-20.

 180   Ibid Attachment RS-15.

 181   Exhibit A1 [113(b)].

 182   Transcript PN 2037.

 183   Exhibit A1 Attachment RS-15.

 184 Exhibit R7 [83].

 185   Exhibit A15 [14(c)(iii)].

 186   Applicant’s Closing Submissions [17(c)(iii)]

 187   Exhibit A1 [113(c)].

 188 Exhibit R7 [78].

 189 Ibid [64].

 190   Exhibit A1 [124(a)].

 191   Exhibit R7 Attachment OR-16.

 192   Ibid Attachment OR-16.

 193   Exhibit A17 [28]-[33].

 194   Exhibit A1 Attachment RS-25.

 195   Ibid [128]–[137].

 196 Exhibit R7 [99].

 197 Ibid [100].

 198 Ibid [102].

 199   Ibid [103]-[105].

 200   Ibid [15]–[16].

 201 Ibid [36].

 202   Ibid [42(a)].

 203   Ibid [47]-[48].

 204   Transcript PN 87.

 205 Exhibit A1 [136].

 206   Ibid [140]–[142].

 207 Exhibit R7 [117].

 208 Exhibit R18 [48].

 209   Exhibit A1 [128]–[137].

 210   Ibid [147]-[148].

 211   Transcript PN 2089.

 212   [2016] FWC 2308.

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