Shivaani Polley v WSP Australia Pty Ltd
[2024] FWC 1156
•3 MAY 2024
| [2024] FWC 1156 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Shivaani Polley
v
WSP Australia Pty Ltd
(U2023/11030)
| COMMISSIONER SIMPSON | BRISBANE, 3 MAY 2024 |
Application for unfair dismissal remedy – Jurisdictional Objection that the Applicant Resigned – Objection upheld – Application dismissed.
On 9 November 2023, Shivaani Polley (the Applicant / Ms Polley) filed a Form F2 application for unfair dismissal remedy against WSP Australia Pty Ltd (the Respondent). In its Form F3 response to the application, the Respondent raised a jurisdictional objection that the Applicant had not been dismissed. The matter was set down for hearing of both the jurisdictional and substantive issues by Deputy President Lake on Wednesday 28 and Thursday 29 February 2024. The matter was reallocated to me for hearing on 26 February 2024 as Deputy President Lake was unwell.
It is common ground that the Respondent is not a small business, that the Applicant has met the minimum employment period and that her salary did not exceed the high-income threshold. In any event, the Applicant is covered by a modern award.
The Applicant filed an outline of submissions on 18 January 2024 and filed five witness statements from the Applicant,[1] her husband Robert Polley,[2] Wayne Glenn[3] Deborah Hutchison, and Vivian Furtado. The Respondent objected to the statements of Hutchison and Furtado and I determined not to allow the evidence of those two witnesses to be introduced as I concluded that they were not sufficiently relevant to the matters at issue in the case.
The Respondent filed an outline of submissions on 15 February 2024 and filed five witness statements from Lachlan Gray,[4] Birgitte Crowley,[5] Scott Benjamin,[6] and Rowan Dick[7]. A statement was filed by Alicia Jaeschke who was the subject of an Order to Attend issued by the Commission prior to the hearing. Ms Jaeschke was the employee of the Respondent who conducted an investigation for the Respondent into Ms Polley’s complaints. Ms Jaeschke provided a medical certificate indicating that she was unwell and therefore unable to give evidence on the listed hearing dates. After the conclusion of the evidence the Respondent subsequently advised that it was content to withdraw its reliance on the statement of Ms Jaeschke and rely on the evidence already before the Commission. On that basis, Ms Polley’s representatives advised they did not press for cross examination of Ms Jaeschke and I subsequently rescinded the order requiring Ms Jaeschke to attend.
At the hearing, Ms Polley and the Respondent were granted leave to be represented, Ms Polley by Mr C Watters of Counsel instructed by Work Rights Australia, and the Respondent by Mr M Sant, a Partner from HFW.
BACKGROUND
Ms Polley was employed for 13 years by the Respondent, 10 of those in a full-time capacity. Ms Polley was employed as a Senior Principal Engineer by the Respondent. Ms Polley asserted in submissions that her employment was terminated pursuant to the provisions of section 386(1)(b) of the Fair Work Act 2009 whereby she resigned from her employment but was forced to do so because of the conduct of the Respondent employer.
It was submitted for the Applicant that she was one of the last remaining female engineers, having resisted a male dominated and ‘boys club’ culture, attitude, and mentality for several years. Ms Polley asserted that one Technical Director in particular, Mr Scott Benjamin, has harassed, bullied, ‘putdown’ and engaged in passive-aggressive misogynistic behaviour toward her since 2020. It is submitted for Ms Polley that she repeatedly challenged Mr Benjamin about his conduct, taking him to task and calling him out whenever appropriate - all to no avail. It was submitted that given Ms Polley’s role as a senior principal engineer and length of service with the Respondent, Ms Polley was required to work closely with Mr Benjamin on several major projects. It was submitted that Mr Benjamin’s behaviour over time created a working environment wherein Ms Polley no longer felt psychologically safe.
It was submitted for Ms Polley that these matters came to a head on 1 September 2023 when attending a major client briefing in Melbourne as the senior principal engineer (and the only woman in the room), Ms Polley was asked by Mr Benjamin to ‘get the coffees’. Ms Polley made a formal complaint to the Respondent concerning this and related earlier behaviours, including advice that she no longer felt safe working with Mr Benjamin. This culminated in a workplace investigation which Ms Polley submitted made no adverse findings against Mr Benjamin, and which did not address any of Ms Polley’s complaints. Ms Polley submitted that during a subsequent HR meeting she was told that she would have to continue to work with Mr Benjamin. Consequently, it is argued Ms Polley was forced to submit her written notice of resignation on 20 October 2023. Ms Polley provided three months’ notice of resignation and her last day of employment was 24 January 2024.
It was submitted for Ms Polley that she suffered workplace bullying, harassment, passive-aggressive behaviours, being spoken down to and related misogyny from Mr Benjamin for almost 4 years. Further that throughout that period she continued to work with Mr Benjamin, called him out on his behaviour where appropriate, made informal complaints about Mr Benjamin’s conduct seeking intervention, and explained to the Respondent’s executives that she would have to resign if the situation did not improve. It was submitted that ultimately, when Mr Benjamin’s conduct deteriorated to sexual harassment on 1 September 2023, and the Respondent failed to protect Ms Polley’s psychological safety, Ms Polley was left with no alternative but to resign her position.
The Respondent submitted that in early September 2023, Ms Polley made a complaint about Mr Benjamin, and in summary the complaint alleged that Mr Benjamin had bullied the Applicant over an extended period. The Respondent submitted that the trigger for the complaint was an incident that occurred on 1 September 2023, where Mr Benjamin asked Ms Polley to 'get the coffees' for those attending a client workshop.
The Respondent submitted that over the period 14 September to 18 October 2023, Ms Jaeschke (the Respondent's HR Business Partner for the part of the business in which Ms Polley and Mr Benjamin worked), conducted a fair, thorough and impartial investigation into the complaint. The Respondent submitted that during the investigation, Mr Benjamin was stood aside from the project that Ms Polley and he were scheduled to work on (the WA C-ITS project) to ensure that there was appropriate separation of Ms Polley and Mr Benjamin. The Respondent submitted that the investigation concluded that the alleged bullying of Ms Polley could not be substantiated, however despite this conclusion, Ms Jaeschke concluded that the way the team was functioning, and several organisational challenges were creating some psychological safety risks that needed to be addressed.
The Respondent submitted that Ms Jaeschke made several recommendations including: (1) leadership work together to improve project governance, role clarity and team design; (2) mediation be attempted between Ms Polley and Mr Benjamin to improve their working relationship; and (3) getting Mr Benjamin '360 feedback' feedback with a focus on work style and organisation. On 18 October 2023, Ms Jaeschke informed Ms Polley that the investigation had been concluded and arranged a meeting with her on 20 October 2023 for the purposes of outlining the outcome of the investigation.
On 20 October 2023, Ms Jaeschke, Mr Rowan Dick (the senior executive for the part of the business in which the Applicant and Mr Benjamin worked), Ms Polley and Mr Robert Polley (the Applicant's partner and support person) attended a meeting. The Respondent submitted that at this meeting, Ms Jaeschke informed Ms Polley of the outcome of the investigation, specifically that Ms Polley’s allegations against Mr Benjamin were not able to be substantiated being consistent with bullying and harassment and that the incident on 1 September 2023 where Ms Polley was asked to 'get the coffees' was not due to any gender bias but that Mr Benjamin had acknowledged that it was wrong to have asked her and he was apologetic towards Ms Polley for making the request and the impact it had on her. The Respondent submitted that Ms Jaeschke also informed Ms Polley that action needed to be taken around project governance, team design, and role clarity immediately to make the workplace safe and that attempts at mediation and rebuilding the relationship between Ms Polley and Mr Benjamin should be explored.
The Respondent submitted that Ms Jaeschke also informed Ms Polley that she wanted to give her some time to digest the information and have another discussion with her in the following week where they could explore next steps. The Respondent also submitted that Ms Jaeschke also informed Ms Polley that if Ms Polley was unhappy with the outcome of the investigation, she could request a review.
The Respondent submitted that within 2 hours of the meeting ending, Ms Polley sent an email to the Respondent tendering her resignation and alleging that because of the bullying of Mr Benjamin she no longer felt psychologically safe to work at the Respondent. The Respondent said Ms Polley gave more than 3 months' notice of her resignation, nominating 24 January 2024 as her last day of work, and Ms Polley was only required to give 2 months' notice under her contract of employment. The Respondent said it sought to have Ms Polley withdraw her resignation and attempted to meet with her to discuss the investigation outcome and the planned steps to facilitate a mediation process to try and rebuild the working relationship between Ms Polley and Mr Benjamin, however, all of the Respondent's efforts were resisted by Ms Polley and were to no avail.
The Respondent said that Ms Polley worked as normal during her notice period and despite the conclusions of the investigation, Mr Benjamin was not reinstated to the project that Ms Polley was working on, and which Mr Benjamin was stood aside from during the investigation (the WA C-ITS project).
EVIDENCE
Ms Polley provided with her witness statement a table of events which was submitted with her original complaint about Mr Benjamin. These are referred to in the chronology of events as set out below in the body of this decision. Ms Polley was asked during cross examination whether that apart from incidents referred to in her evidence she would describe her interactions with Mr Benjamin as collegiate. Ms Polley agreed saying she tried her best to get along with him.
Mr Benjamin said as a Technical Director his duties include providing technical direction to the ITS team and coordinating the global capabilities of the Respondent in the ITS and future mobility space so that the ITS team in Australia is drawing on, and contributing to, ITS teams in other countries throughout the Respondent’s global network. Mr Benjamin said he reports to Mr Dick, National Executive of the Planning and Mobility team and he is based in the Melbourne office of the Respondent. Mr Benjamin said Ms Polley was employed as a Senior Principal ITS Engineer and sat within the Queensland ITS team. Mr Benjamin said he has worked with Ms Polley since May 2014. He said Ms Polley did not report to him, however, they worked together on client projects and pitches, and Ms Polley was based in the Sunshine Coast office of the Respondent.
Mr Benjamin said as Technical Director, he works across various client projects nationally, and also performs various roles on projects including technical expert, technical reviewer, or project director. He said when he performs the role of project director, he is ultimately responsible for project outcomes and positive client engagement on projects. He said as a technical expert, he is responsible for the early engagement and direction of a project. He said he also considers the broad approach and key elements required to get the outcome sought including consideration of processes needed to deliver projects. He said as a technical reviewer, he reviews projects as a whole, the processes taken and outcomes sought and the validity of the technical approach taken, as well as checking designs against standards and specifications.
Mr Benjamin said Ms Polley is an experienced ITS Engineer and worked on client projects as a technical lead. He said on a project this involved working with the project manager, seeking input and direction from the project director and potentially a technical expert to develop and run the project from a technical perspective. He said ITS Engineers manage a range of other technical staff and inputs, they also have client interactions to ensure that the Respondent has captured the clients' needs and can produce outcomes that meet their needs. He said Ms Polley also performed the role of project manager on projects.
Mr Benjamin said in recent years, when Ms Polley and he worked on the same projects, she would generally perform the role of technical lead on the project, and he would perform the role of technical expert, technical reviewer or project director.
Mr Gray described Ms Polley as very skilled, very proficient, and very professional and part of her role was providing technical advice and support to Mr Benjamin. Mr Gray’s evidence included that he first became aware in 2020 through conversations with Ms Polley that she was frustrated with Mr Benjamin, and Mr Gray said it seemed like normal working frustrations that you have with somebody that you're working with. Mr Gray said the specific issues were around communication and emails, getting things at the last minute, things not being particularly clear, and that she was doing a lot of the grunt work for bidding and tendering works and then perhaps not being included on the actual bids. Mr Gray said Mr Benjamin could be a bit unstructured and a bit disorganised at times with his communication, and Ms Polley wasn't alone with some of those frustrations.
Mr Gray said Mr Benjamin can provide things a bit last minute and he is a bit of a bigger picture, blue sky thinker, and sometimes when it comes to actually the nuts and bolts of implementing that plan, there can be a few little gaps. Mr Gray said when working with different personalities, at times there's people that are really good at all the little details and others that are a bit bigger picture, and Mr Benjamin is one of those ‘bigger picture guys’, which is great. Mr Gray said Mr Benjamin has a lot of skills at that, but it can lead to some stresses if something's been missed or there's little bits and pieces that haven't quite been covered off. Mr Gray said he had some empathy with Ms Polley from his experience, and what he had seen.
Mr Gray agreed that one of the issues Ms Polley had was being named and her skills being nominated on projects, and then once the projects were won, she was removed from the project. Mr Gray said there are a lot of reasons why some of that stuff gets moved around and he wasn't aware of any specific intent at that point of Mr Benjamin to remove Ms Polley because of any sinister intent. Mr Gray said he wasn't close enough to the discussions on some of these projects to understand exactly the specific reasons.
COVID Packages
Ms Polley agreed that during COVID shutdowns in Melbourne, she sent care packages to Mr Benjamin.
Excluding or withholding work Commonwealth Government CITS Strategy
Ms Polley said she worked a lot of hours to produce a remarkable bid for the Commonwealth Government CITS strategic advice piece. Ms Polley said she produced the bulk of the bid, with assistance from Mr Alderson, and Mr Benjamin provided leadership in enabling partnership with Deloitte. Ms Polley said during this period she felt sick and had to take time off. Ms Polley said she asked for the bid work to be taken over, however, when she returned from two days leave, no work had been done. Ms Polley said she worked late nights and unpaid over the weekend to produce the bid. Ms Polley said the bid was completed on 14 October 2020 and the Respondent won the job, however on 21 January 2021 she was taken off the job when she enquired when she should start work and no reason was given.
Ms Polley said she was later called in to help when the first deliverable was not to the expected standard and this continued throughout the project, and through the project she was not invited to client meetings and the client was unaware she was working on the project. Ms Polley said she instigated a one-on-one conversation with Mr Benjamin about this.
It was put to Mr Benjamin during his oral evidence that Ms Polley's CV qualifications, experience, and name were used for the bid, however when it was won, she was removed from the bid, and then when things started going badly she was brought back to fix it. Mr Benjamin disagreed. He said Ms Polley was part of the bid and she was named in the bid, and she did act in a role on the project. Mr Benjamin said there were four parts to the project: Deliverable 1, 2, 3 and 4, and she had a role, as a technical lead in Deliverable 1. Mr Benjamin said all the elements of every project are important, but in this case, only Deliverable 4 was to be published and shared with other organisations and was of significant importance to this client. Mr Benjamin said D1, D2 and D3 were all foundation documents supporting D4. He said Ms Polley had a role in D1 and was part of that project team in D1, and she did reviews on D1, and took part in early internal meetings in D2. He said D2 onwards was led significantly by the economics team. Mr Benjamin agreed Ms Polley was brought back in respect of D4, probably in a review role as well. He said her name was on the published document. Mr Benjamin rejected the proposition that Ms Polley was used to win the work and then removed.
Main Roads Western Australia Master Plan.
Ms Polley said that after a successful engagement with Main Roads Western Australia (MRWA) on the Master Plan, she took the initiative to suggest that they use the remaining project funds to visit the client and undertake some business development. Ms Polley said the client outlined three key concerns and further work for the Respondent. Ms Polley said she took the initiative to scope the next project, however she said Mr Benjamin was not enthusiastic and she could not understand why. Ms Polley said she prepared a presentation and Mr Benjamin advised her not to send it and did not give a clear reason why. Ms Polley said she showed the presentation to Mr Gray who at the time was the Team Manager of the Queensland ITS team and he saw no risks in sending it. Ms Polley said she then sent an email to Mr Benjamin and local representatives that she would send it at a specific time and they were welcome to add reviews or comments. Ms Polley said Mr Benjamin’s comments were minor and the Respondent had since won the work. Ms Polley said she instigated a one-on-one conversation with Mr Benjamin about this.
Mr Benjamin said in about October 2021, he was working on a pitch for the Western Australia Masterplan with Ms Polley and Mark Fowler, Regional Executive for the Western Australia Advisory team. He said the pitch was being priced on the basis that strategy development work would be performed by Ms Polley and another team member, Julien Marr, Principal ITS Engineer, on the basis of a 60/40 split of the work (60% Ms Polley and 40% Mr Marr). He said about this time, there had been a number of redundancies implemented within the Respondent’s Advisory business, and Mr Marr raised with him, his concern that he may be made redundant given his low work utilisation levels. Mr Benjamin said he and Ms Polley had a fifteen-minute call about Mr Marr's situation, and during this call, he suggested that they flip the allocated work on this project from the proposed 60/40 split in favour of Ms Polley towards a 40/60 split in favour of Mr Marr to assist with Mr Marr's future utilisation. Mr Benjamin said Ms Polley said that she was "okay" with this change, and after speaking with Ms Polley the pitch was updated to reflect this change.
Mr Benjamin said a couple of weeks later, Ms Polley called him and said that he had switched Mr Marr and her on the project allocation without telling her. Mr Benjamin said he tried to explain that they had discussed this in the call and Ms Polley called him a "liar" and abruptly ended the call. Mr Benjamin said a day or two later, without any notice, Ms Polley joined him to a group call with Mr Simon Latham, Queensland Regional Executive for the Planning and Mobility team. Mr Benjamin said Ms Polley was speaking like he was not on the call and spoke to Mr Latham and said he was a "liar" and made a number of complaints about him that made no sense to him.
Mr Benjamin was asked during his oral evidence about his claim that when Ms Polley spoke to Mr Latham about this, she called him a liar. Mr Benjamin said he was invited into a Teams meeting and he could see there were two participants, Ms Polley and Mr Latham. He said there may have been other people in the room, but they invited him to a Teams meeting. He said Ms Polley did make the statement that he was a liar. Mr Benjamin said he responded at the time by saying 'I'm confused with what you're talking about.' Mr Benjamin said he didn't really understand the context, and he sensed Ms Polley was upset and he asked them to clarify what they wanted him to talk about, and he got off the phone fairly quickly. He said he was pretty confused by that call.
Ms Polley said in her evidence that she escalated the matter to Mr Latham, and Mr Gray, and they later included the Section Executive, Mr Dick. Mr Dick said in his statement that he routinely travels to the Respondent’s offices across Australia and during one of these visits in late 2021 or early 2022 he met with Ms Polley while he was travelling in the Brisbane office, and during this meeting Ms Polley raised concerns about Mr Benjamin’s performance. Mr Dick said he no longer recalled the specifics of the concerns however Ms Polley was frustrated with Mr Benjamin.
Mr Dick was asked what he did about Ms Polley’s concerns and he said when he returned to the Melbourne office, he spoke to Mr Benjamin about the frustrations to hear his side of the events and it was a different side to what he heard from Ms Polley and that he didn’t see any issues with his performance or any issues around clients that needed questioning. Mr Dick said he did not recall if he contacted Ms Polley about the issue after speaking to Mr Benjamin. He accepted it may have been the case that no feedback was provided.
It was put to Ms Crowley that Mr Benjamin’s response during the investigation concerning the West Australia IS strategy referred to among other things, Julien Marr, and Mr Benjamin was not responding to the matter that Ms Polley was complaining about. Ms Crowley responded that she did not know. It was put to Ms Crowley that Ms Polley’s original complaint (concerning being excluded or withholding work) was not investigated. Ms Crowley agreed that was a matter for Ms Jaeschke, and agreed with the proposition that if the matter was not investigated it would be unfair to both parties.
Mr Benjamin accepted that the issue in connection with Mr Marr was not the subject of a complaint from Ms Polley.
Impossible Timelines to finish tasks - iMove Motorcycle Rider VRU Use Case Bid
Ms Polley said the iMove Motorcycle Rider VRU Use Case Bid was sprung on her and a junior resource with no warning. Ms Polley said the bid was received on 12 August 2022, but she was not advised until during the resource planning meeting on 29 August 2022. Ms Polley said during this period she was busy delivering on multiple other projects and was fatigued, which was well known to the team.
Ms Polley said that Ms Jessica Tong and herself were given 2 days to pull the bid together. Ms Polley gave evidence that she said at the time this would be impossible to do effectively and they should “no go” this. Ms Polley said that she would be unable to work the weekend as she had other plans and had been doing a lot of overtime. Ms Polley said she worked on her day off. Ms Polley said Ms Tong told her that she was expected to be the technical PM for the work, and so she told Mr Benjamin it was unlikely she would be able to commit to working on the job if won as she was resourced for another project at the same time. Ms Polley said Mr Benjamin still wanted her to use her CV and for her to be on the project organisational chart. Ms Polley said she told Mr Benjamin she felt uncomfortable about doing this and Mr Benjamin said that she should be able to fit it in.
Ms Polley said that during a conversation with Ms Tong on Friday morning, Ms Tong mentioned that she had been advised Ms Polley was only on the bid as second choice because Mr Alderson had been seconded. Ms Polley said during the course of the next few days Mr Benjamin was missing in action at critical times and could not be reached for assistance with decisions and missed a key meeting with project partners. Ms Polley said she stepped in at short notice at these times, impacting her own projects and family.
It was put to Mr Benjamin that this work was given to Ms Polley to supervise, manage, and prepare this bid very late in the piece. Mr Benjamin disagreed. Mr Benjamin said he wasn't aware of Ms Polley working on the long weekend, and the work, initially, was for himself and Ms Tong. Mr Benjamin said he thought Ms Tong must have reached out to Ms Polley at some point through the process and whether Ms Polley suggested she help, or Ms Tong suggested Ms Polley help her, but one way or the other Ms Polley did come in and help and he appreciated that help. Mr Benjamin said he would never push people to work on weekends, days off, or late at nights. He said he explained to everyone on this project, that they had worked closely with this partner a number of times successfully before, and the idea here was the Respondent pitch something, in the limited amount of time they had.
Mr Benjamin said he made Ms Tong aware of the opportunity as soon as possible and it may have been a day or two later that Ms Tong shared that knowledge with Ms Polley. He said Ms Polley said Ms Tong needed the help, which he accepted, but said he did make clear “don't go crazy.” Mr Benjamin said he certainly would not push people to work late at night and not on a day off or over a weekend, or a long weekend, so if Ms Polley did, that's unfortunate, however he would not push her to work those hours as that is just not appropriate and not something he would do.
Mr Benjamin was asked how else the work was going to get done. Mr Benjamin said he would do the best he could, and he was willing to stay up late at night himself, and said he did on this project. He said this was an EOI (Expression of Interest), and they could get another bite at the cherry, which does happen in consulting. Mr Benjamin said in this case, maybe a week was a bit short, but you do the best you can.
It was put to Mr Benjamin that Ms Polley raised the question of the resourcing and timeline with him. Mr Benjamin said it was very reasonable to ask was it worth it and he said he would have said something like, 'I think it's very likely'. Mr Benjamin said you can look back on that and say, 'Gee, that's a waste of time', but that's what happens as a consultant. Mr Benjamin agreed that the Respondent did not win that bid. Mr Benjamin said that he could not recall if he was absent for some client meetings.
18 August 2022 breakfast meeting at the Brisbane ITS Australia Summit
Ms Polley said she initiated face-to-face conversations with Mr Benjamin when they were in the same city attending conferences and provided the example of the ITS Summit in Brisbane in August 2022 when she raised the issue of Mr Benjamin excluding her from projects, and the impact that had on the delivery of the C-ITS Deployment Models (Federal Government work) as one example.
Mr Gray said on 18 August 2022, at a breakfast meeting during the ITS Australia Summit held in Brisbane, he observed an uncomfortable interaction between Ms Polley and Mr Benjamin. He said Mr Simon Latham, Regional Executive – Planning and Mobility for Queensland, Mr Benjamin, Ms Polley and himself attended this meeting. Mr Gray said both himself and Mr Latham were late arriving to this meeting, and it commenced without them. Mr Gray said at this meeting, Ms Polley voiced a number of criticisms about the Respondent’s ITS advisory practice, which were principally directed at Mr Benjamin's professional work. Mr Gray said the manner in which Ms Polley raised these criticisms was very direct. In his oral evidence Mr Gray described the way Ms Polley raised the issues was “pretty full on.” Mr Gray said he did not recall any yelling and shouting. Mr Gray said what made him uncomfortable was how direct Ms Polley was with her language to Mr Benjamin, there was no beating around the bush, and it was very uncomfortable to listen to.
Mr Benjamin said he was running about ten minutes late to the breakfast and texted Ms Polley to advise her of this. He said Mr Gray was also running late and arrived after him and Mr Latham was running even further behind. Mr Benjamin said when he arrived at breakfast, Ms Polley was already there. He said upon his arrival, he told Ms Polley that he was not in a good state of mind because of an incident that happened overnight where the police were at his house and his wife was alone with their two young kids as there was an incident with their neighbour and the police were asking his wife for assistance.
Mr Benjamin said in response, Ms Polley did not acknowledge what he just said or express any concern and instead she began to berate him for being late to breakfast and said words to the effect of "this is a disgrace and shows a lack of respect". Mr Benjamin said Ms Polley was speaking to him in a terse and aggressive tone. He said Ms Polley then started to discuss the ITS advisory business describing it as a "mess" and started to directly criticise him. Mr Benjamin said when Mr Gray and Mr Latham arrived, Ms Polley continued the discussion but she then dialled back her tone.
Mr Benjamin was asked about being late for the meeting and he said he had been up late the previous night and early that morning. He said he was on the phone to his wife as their neighbour had a complex mental state and health issues and had been at their door late that night and his wife was still stressed that morning. Mr Benjamin said the person passed away and the police were trying to get his wife to access the neighbour’s house and climb in through the window to see if she could see him. Mr Benjamin said it was very stressful and he wanted to be with his wife, and he texted Ms Polley that morning and said, 'I'm sorry, things are not going well'. Mr Benjamin said he tried to explain that to Ms Polley when he arrived at their meeting, and he apologised to Ms Polley for running late.
In his oral evidence Mr Benjamin described Ms Polley as being abrupt, stressed, and aggressive. Mr Benjamin agreed that he raised the issue with Mr Dick. Mr Benjamin said Mr Dick asked him to consider what was going on, where people were at, and his own state of mind at the time. Mr Benjamin said perhaps he was stressed and not seeing things clearly. Mr Benjamin said at the end of a busy week maybe Ms Polley was stressed and Mr Dick encouraged him to consider that perhaps he was taking this the wrong way however he didn’t really recall much of that specific discussion.
Mr Benjamin said Mr Gray and Mr Latham were part of that breakfast meeting and Mr Benjamin said he made them aware that he was a bit confused by that discussion and it didn't make sense to him. Mr Benjamin said a lot of the short-comings of their work he didn't agree with. Mr Benjamin said he took it to be a criticism of the range of people in their team and that just didn't feel right for him. Mr Benjamin said he felt that was strange and he did try to follow up with them. Mr Benjamin said part of the problem they (the criticisms) reflected to him was Ms Polley’s concern with structure and not having an ITS leader in place, and that was a role that was vacant at the time that was later filled by Mr Gray.
Mr Dick said shortly after the Brisbane Summit he was informed by Mr Benjamin of the incident which occurred at a breakfast meeting at the conference. Mr Dick said Mr Benjamin informed him that Ms Polley had, in an aggressive tone, confronted him about being late for the breakfast meeting, his working behaviours and performance on projects. Mr Dick said that Mr Benjamin informed him that Mr Latham and Mr Gray also attended the meeting but arrived after Mr Benjamin, and after they arrived, Ms Polley moderated her tone.
Mr Dick said shortly afterwards he discussed the matter with Mr Latham, and he could not confirm exactly what Ms Polley said to Mr Benjamin. Mr Dick said Mr Latham said it was likely Ms Polley was tired from attending the conference and may not have been herself at the breakfast meeting. Mr Dick said there was no formal complaint from Mr Benjamin. Mr Dick accepted that as Mr Latham was late, he didn’t really understand or participate in the exchange.
Mr Dick said for a range of reasons including to improve collaboration and consistency across the national ITS team and to help improve working relationships with the team including between Mr Benjamin and Ms Polley he decided to create a new role within the Respondent’s national ITS team, the role of National ITS Coordinator. Mr Gray was subsequently appointed to the role in March 2023.
Work Trip to Perth November 2022 and subsequent meeting with Lachlan Gray and Wayne Glenn
Ms Polley agreed that Mr Benjamin and herself went on a work trip in November 2022 to Perth. Ms Polley agreed that Mr Benjamin and herself went to dinner together and had a relatively late night and had breakfast the next morning. Ms Polley said that after this trip to Western Australia to see the client, she told Mr Gray and Mr Wayne Glenn that she had prepared a strategy and had discussed the strategy with Mr Benjamin and with Mr Gray, and when they got there (to Western Australia) Mr Benjamin refused to let her talk to the clients at all. Ms Polley said every time she went to talk to the client about what they were going to do Mr Benjamin absolutely shut her down. Ms Polley said Mr Benjamin would not let her get in a word and she was not allowed to have a professional opinion.
Ms Polley said that when they got back, she said to Mr Gray that this needed to be resolved, and the problem was getting worse, and asked if he could resolve it because she couldn’t continue to do this. Ms Polley said Mr Gray and Mr Glenn were present. Mr Gray recalled the meeting, and he believed Ms Polley and himself were in a meeting room on the Sunshine Coast and Mr Glenn was on Teams although it was two years ago, and his recollection was vague.
Mr Gray said Ms Polley was upset and he thought a bit disillusioned about the ongoing problems that she had with Mr Benjamin. Mr Gray clarified he thought Ms Polley was dissatisfied and was expressing her concerns and her dissatisfaction and annoyance. Mr Gray said Ms Polley was tossing up leaving, and she wanted to know whether she should stick around or whether she should resign. Mr Gray appeared to accept that Ms Polley indicated that if the issues with Mr Benjamin were not addressed by April (2023) she was leaving. Mr Gray said he interpreted the discussion as more of a talk through, or catchup, or chat between three colleagues that had worked together for a long time. Mr Gray said they discussed a range of things with her about her value to the team, about how they could support her, and that they didn't want her to resign. Mr Gray agreed that he said he would try to intervene or think about some way to help. Mr Gray said his intention was to help the situation.
Mr Benjamin’s evidence was this trip was only a business development discussion, and an early discussion with a client to understand their needs and then from there they would be able to make a better pitch. It was put to Mr Benjamin that Ms Polley was not allowed to present the presentation she had prepared for the client. Mr Benjamin responded that Ms Polley had produced some great material, and it was provided later to the client. He said however the process they go through with their clients is they see what they need and where they're at. Mr Benjamin said that at that particular meeting he called a 'CITS discussion', the client wanted a discussion, and they wanted to understand what was happening nationally. Mr Benjamin said they understood the Respondent had knowledge, collectively with Ms Polley and himself and Mark Howard and Leigh Dawson. Mr Benjamin said they discussed their future needs, knowing that they might need something in three to six months. Mr Benjamin said he suggested to Ms Polley not to send a large document outlining an approach and a specific set of resources to deliver a project when they hadn't yet heard the client requirements. Mr Benjamin said this was a very typical approach for the Respondent with very wide-ranging open discussions to begin with. It was put to Mr Benjamin that Ms Polley was about to commence a PowerPoint presentation and Mr Benjamin said to her, 'No, Shiv, we're not going to do that'. Mr Benjamin said he didn’t think he would have put it that way, and he would have said, 'No, let's wait'.
9 March 2023 Meeting between the Ms Polley and Mr Gray
Mr Gray said that on 9 March 2023, he arranged a meeting with Ms Polley to see how she was as he was concerned about her workload, and he wanted to follow up about how she was feeling about working with Mr Benjamin. Mr Gray said at this meeting, he developed a plan with her to address some of these matters. He said that specifically, he asked Ms Polley to: (1) pause or pull back on the Key account manager role for DTMR and to say no to any other extra non-project or non-essential work for the next month; (2) focus on resetting her work life balance; and (3) participate in a discussion, facilitated by him, with Mr Benjamin to try and reset their working relationship using an upcoming project (PDI Framework project) where he would use a management tool to try and get greater clarity about their roles.
Mr Gray explained in his oral evidence the HR Framework was called the GRIP (goals, roles, interpersonal and processes) model which involved defining the goals, roles, interpersonal relationship rules, and then the processes agreed to work under. Mr Gray said the idea was to pilot this on a project and allow the two to work successfully together underneath this framework, and then use that as a stepping stone to rebuilding their interpersonal relationship so they can work together in the future. Mr Gray said after the meeting his impression was that the two of them seemed to be a bit happier and there was a bit of buy-in to at least keep an open mind and try and ‘have a crack at it.’ Mr Gray added that at this time Ms Polley looked very fatigued and he was worried that she was working too much and looked a bit burnt out.
16 March 2023 follow up meeting
Mr Gray said on 16 March 2023, he had a follow up meeting with Ms Polley to see what progress had been made on the plan he developed.
30 March 2023 meeting with Mr Gray, Ms Polley and Mr Benjamin
Mr Gray said on 30 March 2023, he had a meeting with Ms Polley and Mr Benjamin, and at this meeting he used the GRIP model in connection with the PDI Framework project to try and reset the working relationship between Ms Polley and Mr Benjamin. Mr Gray said he believed that this approach would address some of her frustrations by providing them with a structured framework to work within on the project. Mr Gray said that from his observation of Ms Polley and Mr Benjamin's interactions on the PDI Framework project following the meeting, their relationship remained tense, however, there were no significant issues to prevent them working together on projects. Mr Gray said he observed that Ms Polley was more positive about working on projects which involved Mr Benjamin after this meeting.
Mr Benjamin said whilst he acknowledged that there was some tension in their working relationship, he considered Ms Polley a critical and highly valuable member of the ITS team, and he enjoyed working with her. He said their conversations were almost always positive in nature. Mr Benjamin said he participated in two meetings with Ms Polley, facilitated by Mr Gray, relating to projects that Ms Polley and he were to work on. He said at these meetings, Mr Gray used a model to work through the respective roles on the projects and the project objectives. He said the first meeting was held on 30 March 2023 and related to the PDI Framework project, and he found these meetings very helpful and they assisted Ms Polley and himself have a better understanding of their respective roles on the projects and the project objectives.
Mr Benjamin was asked whether he was aware that Ms Polley was making noises about his behaviour and about their working relationship such that she was going to resign. Mr Benjamin said he was aware, because Mr Gray had called the meeting, that they needed to improve that working relationship around projects and they were going to pick up this first meeting around those projects. He said he was aware that naturally she must be concerned about the way they were working together around projects, but he wasn't aware she had threatened to or tendered her resignation.
Text messages November 2022 to October 2023
Ms Polley was shown a document setting out text messages exchanged between herself and Mr Benjamin from November 2022 to October 2023. The text messages are generally collegiate and friendly in nature. Ms Polley said in regard to the text messages that in order to maintain a working relationship with Mr Benjamin and to try and resolve the issues she has always taken as positive and as professional an approach as possible.
Retirement of Wayne Glenn July 2023
Ms Polley agreed that in July of 2023 she reached out to Mr Benjamin for anecdotes about Mr Glenn to use about his upcoming retirement. Ms Polley said Mr Benjamin is in Melbourne and he often isn’t included in the work in Queensland, so she always seeks to include him as with any other team member who is not locally based.
23 August 2023 meeting with Mr Gray, Ms Polley and Mr Benjamin
Mr Gray said on 23 August 2023, he had another meeting with Ms Polley and Mr Benjamin. He said at this meeting, he again used the GRIP model in connection with the WA C-ITS strategy project to try and support the working relationship between Ms Polley and Mr Benjamin. Mr Gray said Ms Polley and Mr Benjamin did not end up working on this project together because of subsequent events. Mr Benjamin also referred to this meeting held on 23 August 2023 and relating to the WA - C-ITS Strategy project.
Melbourne ITS Industry Conference 28 to 31 August 2023
Mr Benjamin said that in the week commencing 28 August 2023, there was an ITS industry conference in Melbourne at the Melbourne Conference Centre from 28 August 2023 to 31 August 2023. This was an industry conference where both Ms Polley and Mr Benjamin were speakers. Mr Benjamin said that given that Mr Nigel Nielsen, Digital Transport Systems Lead, (who was based in Queensland) was going to be in Melbourne for the ITS Summit, Mr David Alderson and Mr Benjamin decided that it would be a good idea to arrange a workshop with the Department of Transport and Planning (DTP) to discuss the newly awarded DTP CITS project, in person as they were both key resources working on this project. Mr Benjamin said the workshop was scheduled for 2.5 hours on 1 September 2023.
Mr Benjamin said in the days immediately before the workshop, Mr Alderson and he discussed the catering arrangements for the workshop, and Mr Benjamin said he suggested that he would arrive early and bring fruit, muffins, plates and cutlery. Mr Benjamin said Mr Alderson and himself had a conversation where he said words to the following effect "I will ask Motasem or Shivaani to get the coffees on the day".
Coffee Incident 1 September 2023
Mr Benjamin said he was sick with a bad head cold during the week of the ITS Summit and did not attend the first day of the conference, and he said he was not 100% on the day of the workshop and did not feel well. Mr Benjamin said the workshop was held at DTP's offices in a meeting room immediately above the entry level of 1 Spring Street, Melbourne, and there is a coffee shop on the ground floor in the lobby. Mr Benjamin said the members of the ITS team working on the DTP C-ITS project were Mr Alderson, Mr Nielsen and himself.
Mr Benjamin said the people in attendance at the workshop from the Respondent were Mr Alderson, Mr Nielsen, Ms Polley, Mr Motasem Meqdad, Senior ITS Engineer, and himself. He said there were about eight people present from DTP including Mr Nick Collins who was the project manager for DTP for the DTP C-ITS project. Mr Benjamin said despite not working on the DTP C-ITS project, both Ms Polley and Mr Meqdad were invited to, and attended, the workshop. Mr Benjamin said Ms Polley attended the workshop because she had asked Mr Alderson if she could attend as it would assist her work on other projects including the upcoming C-ITS project in Western Australia. Mr Benjamin said he thought this was a good idea. Mr Benjamin said this request also prompted him to invite Mr Meqdad, who was based in the Respondent’s Perth office and was also in Melbourne for the ITS Summit.
Mr Benjamin said Ms Polley had no planned role in the workshop and was present as an observer, for knowledge sharing purposes and to ensure general alignment of the approach taken on other projects she worked on including the upcoming C-ITS project in Western Australia.
He said Mr Meqdad was invited to the workshop because he was also going to be working on the upcoming C-ITS project in Western Australia and the workshop would be helpful for the work that he was about to undertake on this project, and Mr Meqdad also had no planned role in the workshop.
Mr Benjamin said Mr Alderson, Mr Nielsen and himself had the key roles in the workshop, and Mr Benjamin was to lead the workshop. He said Mr Alderson and Mr Nielsen had been working on the deployment of the CAVI central system over the past few years, and this was highly relevant because DTP were going to consider adopting this system for use in the DTP C-ITS project. Mr Benjamin said he was the project director for the DTP C-ITS project. He said to keep people focused during the workshop, in discussions with Mr Collins in planning and preparing for the workshop, Mr Collins suggested that they arrange for catering for the workshop as there were difficulties with him being able to arrange the catering given internal DTP issues. Mr Benjamin said Mr Alderson and himself agreed that they would organise cake and coffees to be made available at the workshop.
Ms Polley gave oral evidence that there were 9 people in the room at the time of the coffee incident that occurred in Melbourne, and several on the Teams call as well. Ms Polley said in her statement that she was the only female present. Ms Polley agreed it was a client workshop. Four people were the Respondent’s representatives and there were five or more clients in the room. Ms Polley said herself, Mr Alderson, Mr Nielson and Mr Benjamin were in the room. Ms Polley said contrary to Mr Alderson’s statement, Mr Glenn was not there. Ms Polley said that the workshop was concerning a specific type of technology that the Respondent was deploying, which is the Cooperative Intelligent Transportation Systems.
Ms Polley agreed that it was Mr Alderson, Mr Nielsen and Mr Benjamin who were working on the project. Ms Polley said she was there because of her previous experience in the beginning phases of CITS in Queensland, and also because she was working on other projects which required her to be across what was happening in that particular architecture because they were doing national harmonisation. Ms Polley agreed she was in Melbourne at the time for an industry summit, and said she had planned to book flights to return to Brisbane on the Wednesday night or Thursday morning depending on availability however said Mr Alderson asked her to remain to attend the workshop which was on a Friday, which was a day of the week she did not normally work.
Ms Polley was asked who organised the workshop and she said Mr Alderson. It was put to her that Mr Benjamin organised the workshop and she said she did not know. Ms Polley agreed she was not asked to make a presentation at the workshop, however said she was there to answer questions that might arise. Ms Polley said she understood the workshop was for an hour and half however she left after approximately one hour as she had to catch the only flight to the Sunshine Coast. It was put to Ms Polley that she was not required to be at the workshop, and she responded that Mr Alderson did require her to attend.
It was put to Ms Polley that there was a coffee shop in the reception lobby area of the building where the meeting occurred. Ms Polley said she didn’t go past it because she entered the building through the side entrance. Ms Polley agreed she travelled to the meeting in a taxi and said Mr Nielsen and Mr Alderson were also in that taxi. It was put to Ms Polley that they were running a bit late for the meeting, and she said they were a bit rushed, but she didn’t think they were late. Ms Polley said Mr Meqdad was not in the taxi and she did not know who he was. Ms Polley said she believed Mr Benjamin was already at the venue for the meeting at that time.
Ms Polley agreed that when she arrived at the conference room where the meeting was held that she did see some refreshments such as fruit, and muffins and plates. Ms Polley said she did not know how the refreshments came to be there. Ms Polley said that she started to set up and Mr Benjamin turned to her and said, 'Can you go and get the coffees?' Ms Polley agreed that before that Mr Benjamin had said he was taking coffee orders, and he asked her whether she was wanting a coffee, and she said yes. Ms Polley said she was perplexed by this as the Respondent had been trying to ‘woo’ this client for many years, and as far as she was aware they were there to put their best foot forward, and she didn't really think that the ‘coffee thing’ was what they were there for. It was put to Ms Polley that she had said in her complaint to Human Resources that Mr Benjamin was putting together a coffee order list and she replied “I guess, yes.”
Mr Benjamin said on the morning of the workshop he called Mr Alderson from the workshop venue. He said that during the call, Mr Alderson informed him that he and the other Respondent attendees were getting in a taxi on the way to the workshop venue. Mr Benjamin said he assumed that Mr Alderson was with Ms Polley, Mr Nielson and Mr Meqdad. Mr Benjamin said he was concerned that Mr Alderson and the others would be late to the workshop because the location of the workshop venue can be difficult to find. He said while on the call with Mr Alderson he provided him with directions on getting to the venue, and they also had a conversation with words to the following effect:
Mr Benjamin: "Have you asked Motasem or Shivaani about getting the coffees?"
Mr Alderson: "I need to sort it."
Mr Benjamin said he was not sure what Mr Alderson meant by that comment but assumed that Mr Alderson was going to ask Mr Meqdad or Ms Polley to get the coffees for the workshop and would deal with the matter while he was in the taxi with them. Mr Benjamin said when Mr Alderson and Ms Polley arrived, he saw that Mr Meqdad was not with them, and none of them knew where Mr Meqdad was, and they all assumed that he was running late. Mr Benjamin said without any prior notice, Mr Meqdad eventually connected to the workshop online via Microsoft Teams, and some representatives from the client also joined the workshop online. Mr Benjamin said he had brought the fruit, muffins, plates and napkins to the workshop, as planned.
In her written statement and her oral evidence Ms Polley claimed that Mr Benjamin ‘instructed’ her to get the coffees. Ms Polley was referred to the words she wrote in her Human Resources complaint which were “You right to get the coffees?” Ms Polley said she replied “Ohhh-kayyyy”. Ms Polley said in her complaint that both Mr Alderson and Mr Neilson looked uncomfortable and looked away. Ms Polley said she felt intensely embarrassed and focused on her laptop. Ms Polley said in her complaint she didn’t understand how the mechanics of getting the coffee was going to work given she was there for a purpose. Ms Polley said in her oral evidence that she looked at Mr Benjamin to indicate that it was not okay.
Ms Polley agreed that a few moments later Mr Benjamin said to her that she could use his credit card to get the coffees, and that he said she wouldn't need a PIN, and could just tap. Ms Polley said Mr Benjamin accepted in his own statement that she said to him she was not comfortable. It was put to Ms Polley that Mr Benjamin just thought she was not comfortable using the credit card and Ms Polley responded that she could not speak for him. It was put to Ms Polley that Mr Benjamin then said again 'You're right to get the coffees? And that Ms Polley said no. Ms Polley replied that she said, 'I'm uncomfortable.'
Ms Polley said in her witness statement that she found Mr Benjamin’s “instruction” to be publicly humiliating, and significantly aggravated by the pre-existing bullying that Mr Benjamin had perpetrated against her. Ms Polley said Mr Benjamin then got up and said, 'Well, I'll get them, then.' And then the client, who had read the situation by then, got up and said, 'I'll help you', and ran out the door. It was put to Ms Polley that Mr Benjamin was away for approximately 10 minutes. Ms Polley believed it was a longer period. Ms Polley was asked where Mr Benjamin got the coffees from, and her evidence was she did not know but noted that he said in his statement that it was downstairs.
Ms Polley was asked why she believed Mr Benjamin was in breach of the sexual harassment and sex-based discrimination guidelines when he asked her to get the coffees. Ms Polley said there's an example in the sex-based harassment training which specifically says that asking women to do gender-based tasks, such as getting food or cleaning up, is considered an example of sexual harassment. Ms Polley said Scott Benjamin had been bullying her at that stage for about three years, and she believed that as the only woman in the room being asked to get the coffees it was probably a gender-based statement.
Ms Polley was asked how she knew he asked because of her gender. Ms Polley said she was the second-most senior person in the room, equivalent in seniority to the clients that were there, and there were other people there who were junior, and he did not ask them to get the coffees. It was put to Ms Polley that Mr Benjamin asked her to get the coffees because she didn't have an active role to play, and wasn’t leading a conversation in that workshop. Ms Polley said her role in these things is often not to present; it's often to guide the client towards what the Respondent is trying to achieve with them, and that's the role of the senior principal engineer generally within the Respondent.
It was put to Ms Polley that Mr Benjamin said that he didn't intend to upset her and cause her any offence by asking her to get the coffees. Ms Polley did not accept that. It was put to Ms Polley that Mr Benjamin tried to reach out to her and apologise after the incident. Ms Polley said he sent her an email and he called and left a message. Ms Polley said in both of those he said 'if' he had offended her, that he wanted to apologise, but there were mitigating circumstances. Ms Polley said that she did not feel that it was a genuine form of contrition, and she felt that he was making excuses because he hadn't been ‘smart’, in his own words. Ms Polley agreed that she did not engage with Mr Benjamin’s attempts to apologise, however said she had been bullied for three years, and was terrified to engage with him anymore because she didn't know what other type of gender-based harassment or other harassment he was going to perpetrate upon her next.
Ms Polley said that Mr Benjamin could have made an Uber eats order for the coffees. Ms Polley was referred to her witness statement where she said as follows: ‘Had I left to source the eight coffees I would have effectively missed the entire meeting. I note I was scheduled to only attend for one hour.’ Ms Polley said in her oral evidence that was because she did not know where the coffee shops were. It was put to her that Mr Benjamin did not take that long, and she said that they had already started by the time they got back.
Mr Benjamin said about 15 minutes before the scheduled start of the workshop, after Ms Polley, Mr Alderson and Mr Nielsen arrived, he went around the room and started to make a list of coffee orders for those people present. Mr Benjamin said as the workshop was scheduled to start shortly, and Mr Meqdad had not arrived and it was not clear to him if Mr Alderson had asked Ms Polley or Mr Meqdad to get the coffees, and Mr Alderson was occupied talking to people in the room, Mr Benjamin turned to Ms Polley who was sitting next to him and they had a conversation with words to the following effect:
Mr Benjamin: "I have started making this list, could you help us grab the coffees before the meeting starts?”
Ms Polley: "Yes."
Mr Benjamin said a few minutes later, more people from DTP started coming in and he started to talk to some of them. He said about 5 minutes before the scheduled start of the workshop, he turned to Ms Polley again and they had a conversation with words to the following effect:
Mr Benjamin: "Use my card." [As he handed his credit card to Ms Polley]
Ms Polley: "I'm a bit uncomfortable with that."
Mr Benjamin: "Don't worry, just tap the card. You shouldn’t need the pin."Mr Benjamin said it was nearly 9am, close to the scheduled start time for the workshop, Ms Polley and he were speaking quietly, and they had a conversation with words to the following effect:
Mr Benjamin: "Are you still OK to go grab the coffees?"
Ms Polley: "No, I'm uncomfortable."
Mr Benjamin said he was confused by Ms Polley's response and thought that she was concerned about using his credit card to buy the coffees. Mr Benjamin said given Ms Polley's response, he stood up, spoke to Mr Collins, who was sitting to his right, two people away (on the other side of Ms Polley) and said words to the following effect to him "Nick, I have to go grab the coffees before we start. Can you get on the intros?" Mr Benjamin said he then walked towards the door and Mr Collins said words to the following effect "I'll come with you to get the coffees. We can delay the start of the meeting."
Mr Benjamin said Mr Collins and himself then left the room and went to buy the coffees from the coffee shop in the building lobby. He said they returned with the coffees in hand, five to ten minutes later, and then distributed the coffees and started the workshop. Mr Benjamin said at the time of giving Ms Polley her coffee, he apologised to Ms Polley as rather than getting lactose free milk as she had requested, he got oat milk. He said Ms Polley said words to the effect of "that's fine".
Mr Benjamin said he did not observe anything unusual in Ms Polley's interaction with him at that time or during the workshop more generally. He said Ms Polley attended the workshop for about 60 to 80 minutes as she needed to catch a plane. As Ms Polley was leaving the room, the workshop was still in progress, and as she was leaving Mr Benjamin claimed he said to words to the effect to her “thanks Shiv, catch up soon".
4 September 2023 Meeting with Ms Polley, Mr Gray and Mr Dick
It appears to me that the Respondent was attempting to take steps to address Ms Polley’s psychological safety, and to attempt to try and rebuild the working relationship between Ms Polley and Mr Benjamin. The evidence supports the conclusion that the Respondent regarded Ms Polley highly, and the Respondent attempting to not accept her resignation demonstrates the Respondent was trying to retain her as an employee, and not trying to force her to resign.
Assessing whether the probable result of the investigation conclusions was that Ms Polley had no effective or real choice but to resign is an objective assessment. I am inclined to accept, having observed Ms Polley give her evidence, that she had reached the subjective opinion that she had no effective or real choice but to resign, and that she genuinely held that belief. However, as the Respondent has submitted, Ms Polley’s subjective opinion on the matter is not the test. To succeed Ms Polley needs to demonstrate that she had no real or effective choice left but to resign. I agree with the Respondent that Ms Polley had a range of options open to her rather than resignation including invoking the review process, exploring the offer of what mediation may look like, advising the Respondent she would not work on projects with Mr Benjamin, taking personal leave until her concerns regarding working with Mr Benjamin were addressed or seeking stop bullying orders from the Commission or complaining with the work health and safety regulator.
It has been submitted for Ms Polley that the bar to making out a case of bullying under the Respondent’s policy was higher than under relevant legislation. Nothing turns on this issue as the evidence does not support a conclusion that Mr Benjamin engaged in bullying under the policy or as defined under the Fair Work Act 2009. I am also of the view that there is more than sufficient evidence to determine this matter without having the benefit of the evidence of Ms Jaeschke and the fact that she did not give evidence would not have affected the outcome.
Ms Jaeschke reached a conclusion that Mr Benjamin’s behaviour does not appear consistent with systematic bullying but it would appear that his disorganised approach/style creates a stressful environment and puts pressure on team members. The picture that emerges from the evidence is that of a growing sense of frustration on the part of Ms Polley about the way Mr Benjamin worked. It is my impression that Ms Polley and Mr Benjamin’s personalities clashed, and Ms Polley found working with Mr Benjamin extremely difficult and stressful. However, that does not support her claim that Mr Benjamin was harassing or bullying her. In forming that view I have also taken into account all of the evidence concerning the various events described above that occurred prior to the incident of 1 September 2023. That evidence does not support a conclusion that Mr Benjamin had bullied or harassed Ms Polley over a number of years or at all prior to the coffee incident.
The fact of Ms Polley electing to remain in the employment of the Respondent until 24 January 2024, when this was approximately one month longer than the notice period in her employment contract also undermines her claim that she had no other option then to resign on 20 October. One would have thought if the situation was as bad as Ms Polley claimed, she would not have elected to remain employed for a month longer than her contractual notice period at her own volition.
I agree with the Respondent's submission that none of its actions in connection with these events were unreasonable, and that it took Ms Polley’s complaint seriously and its investigation reached a conclusion that on balance was correct, and it then went about putting in place measures flowing from the investigations recommendations that were appropriate. I agree with the Respondent’s argument that it was Ms Polley’s disappointment and disagreement with the outcome of the investigation and the prospect of having to continue to work with Mr Benjamin that caused her to resign, however Ms Polley had other alternatives open to her.
I accept this is not a case of a 'forced' resignation. I am satisfied that Ms Polley’s resignation was an exercise of her choice and on that basis the Commission does not have jurisdiction to deal with the application and it is dismissed. An order to that effect will be issued separately and concurrently with this decision.
COMMISSIONER
Appearances:
Mr C Watters of Counsel instructed by Work Rights Australia for the Applicant.
Mr M Sant of HFW for the Respondent.
Hearing details:
2024
Brisbane
28 and 29 February
Final written submissions:
18 March 2024
[1] Exhibit 1.
[2] Exhibit 3.
[3] Exhibit 4.
[4] Exhibit 5.
[5] Exhibit 6.
[6] Exhibit 7.
[7] Exhibit 9.
[8] Transcript PN 339.
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