Stephen Cain v Stuart Downing
[2020] FWC 1914
•8 MAY 2020
| [2020] FWC 1914 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Stephen Cain
v
Stuart Downing; Logan Howlett; Lee-Anne Smith; Kevin Allen
(AB2020/244)
DEPUTY PRESIDENT BEAUMONT | PERTH, 8 MAY 2020 |
Application for an FWC order to stop bullying – interim order to stop bullying – Leanne Mayson v Mylan Health Pty Ltd followed - statutory interpretation of the term ‘at work’ – special paid leave and suspension said to be ‘at work’
[1] On 23 October of 2019, Mr Stephen Cain, the Chief Executive Officer (CEO) of the City of Cockburn (the City), emailed a complaint of workplace bullying to the Elected Members of the City’s Council (the Council). In response, the Council held an informal meeting to discuss Mr Cain’s complaint. They reached consensus that an investigation was necessary, Mr Cain’s request for personal leave would be accepted and his IT access would be temporarily suspended during the investigation - enabling a reprieve from his purported excessive workload, an issue which he had identified was causing him stress.
[2] When the complaint was made, it was evident it centred on the alleged conduct of Councillor Leanne Smith (Councillor Smith). Mr Cain noted in his separate letter to Mayor Logan Howlett, of 24 October 2019, ‘[T]he concerns outlined in this document relate to interpersonal relations between me and Councillor Smith and the impact this has had on me’. 1 The impact referred to was upon Mr Cain’s health and well-being.
[3] By letter of 28 October 2019, Mayor Howlett confirmed receipt of Mr Cain’s complaint and informed him an external consultant would investigate the matter. Mayor Howlett continued that Mr Cain would not be required to attend work until the investigation was complete and due consideration had been given to the investigative report by Council. 2 In the letter it was explained Mr Cain’s focus was to be on his physical and mental health. A Special Council Meeting (SCM) was held on 4 November 2019, and a subsequent letter was issued to Mr Cain of 6 November 2019, where he was again instructed not to attend work or work related events, IT access was suspended, and Mr Cain would be placed on special paid leave.3
[4] On 25 November 2019, Mayor Howlett received an email from Mr Cain that referred to the direction not to attend work and the employment restrictions. The email concluded that the ‘apparent reason for the City and each of the Elected Members when they made the resolution to take such adverse action against me would appear to be because of my complaint’. By email dated 28 November 2019, Mr Cain again informed Mayor Howlett that there was no proper basis for the Council to place him on special paid leave under his contract – and again referred to such conduct being improper and adverse action against him because he had made a complaint. 4
[5] Mr Cain was interviewed on 5 December 2019 by a Dr Helen Sitlington, the consultant engaged to conduct the workplace investigation into Councillor Smith’s alleged workplace bullying. Mr Cain had prepared notes for his meeting with Dr Sitlington 5 and in those notes he tabled complaints about Councillor Kevin Allen. The complaints included that Councillor Allen had persistently made derogatory remarks about him in emails and had repeatedly undermined him in the CEO Performance Review Committee meetings.6 Mr Cain noted that the intention of Councillor Allen had been to have Mr Cain replaced – which, Mr Cain said, was confirmed in an email exchange between two other Councillors.
[6] Come 6 December 2019 however, Mr Cain now faced allegations of misconduct and was suspended on pay pending an investigation into the allegations (misconduct investigation). 7 At the time of the hearing, Council had not yet determined the outcome of the misconduct investigation; a meeting of the Council was to be convened for this purpose, on 16 April 2020.
[7] This matter was expedited to hearing because the utility of the proposed orders sought (see Annexures A and B) would be nullified if the Commission did not deliver its ‘verdict’ before the SCM on 16 April 2020.
[8] It followed that on 6 April 2020, Mr Cain applied for urgent interim orders to prevent Mayor Howlett, Councillor Smith, and Councillor Allen, from effectively having any further involvement about, concerning, or in relation to the bullying complaint or misconduct allegations (see Annexure A to this decision). The interim order extended to a Mr Stuart Downing, the Acting CEO, who Mr Cain had appointed. In short, the interim order required Mr Downing to refrain from taking any further action in the discussion, consideration of, or the making by any person of any determination concerning or in the relation to the bullying complaint and misconduct allegations. In the alternative, where interim orders were not available, Mr Cain sought a declaration and final orders (see Annexure B to this decision).
[9] At this juncture it should be said, Mr Cain initially made a complaint of workplace bullying to the Council in early January 2020. Prior to that time Mr Cain had, in correspondence to the City, alluded to the elements generally associated with a general protections claim. However, by 10 January 2020, his focus appeared to have turned squarely to an application for an order to stop bullying against five named respondents. Those five named respondents were the City, Mr Stuart Downing, Acting CEO of the City, Mayor Howlett, Councillor Smith and Councillor Allen; all of whom received a draft Form F72 on 10 January 2020. That draft Form F72 was however, not filed with this Commission.
[10] The outcomes of Dr Sitlington’s report were communicated to Mr Cain in a letter of 12 March 2020, which confirmed that Dr Sitlington’s investigation report was presented to Council for consideration at the SCM on 11 March 2020. 8 The letter provided that at the SCM the Council had passed several resolutions, including to accept and implement initiatives as recommended by the City’s lawyers, Jackson McDonald in response to Mr Cain’s bullying complaint.
[11] Having had the opportunity to hear from Counsel for Mr Cain (instructed by Allion Partners) and Counsel for Mr Downing and the City, concerning whether the Commission had jurisdiction to make interim orders in this matter as requested, I decided it did not, having adopted the approach of the Deputy President in Leanne Mayson v Mylan Health Pty Ltd and others (Mayson). 9
[12] I concluded that the Commission had no power to make an order – whether interim or final, to stop ‘bullying’, unless satisfied that the two limbs in s.789FF(1)(b) had been met. First, the Commission must be satisfied that Mr Cain has been bullied at work by an individual or group of individuals and second, there is a risk that at work Mr Cain will continue to be bullied by the individual or group of individuals identified in his application.
[13] Based on the evidence before me, I was not satisfied that Mr Cain had been bullied at work by the First Respondent (Mr Stuart Downing), the Second Respondent (Mayor Logan Howett) or the Fourth Respondent (Mr Allen).
[14] Regarding the Third Respondent, Councillor Smith, I was satisfied that Councillor Smith had engaged in repeated unreasonable behaviour toward Mr Cain for a period, noting however that for approximately two months in 2020, Councillor Smith was suspended. However, with respect to s789(FF)(1)(b)(ii), I was not satisfied that there is a risk that at work Mr Cain will continue to be bullied by Councillor Smith.
[15] Based on the above, I concluded the Commission was absent jurisdiction to make the proposed interim order sought, or the proposed final order. Therefore, I dismissed the application and, accordingly, an Order 10 was issued to that effect on 16 April 2020.
[16] During the hearing several contentious issues were raised, which has regrettably led to a lengthy decision. Those issues included whether Mr Cain was ‘at work’ when the unreasonable repeated behaviour was said to have occurred, and whether the orders sought were an available remedy. Further, while the City was not a ‘named person’ or respondent to the proceedings, I nevertheless decided to hear from it given its enmeshment in the factual matrix and its status as employer. 11 My reasons for the decision follow.
Background
[17] The background to this matter is detailed and extensive. Material filed was voluminous. An appreciation must then be had that not all nuances of the evidence are covered. Yet, a forensic lens was warranted at times, in light of the numerous particulars relied upon by Mr Cain to evince he had been bullied and was at risk of such continuation.
[18] Mr Cain commenced employment with the City as its CEO in November 2004. 12 He purported that in an Ordinary Council Meeting in August 2019, his contract of employment was extended until June 2023.
City of Cockburn
[19] Mr Cain gave the following uncontested evidence concerning the City:
The City is a ‘local government’ as defined in section 1.4 of the Local Government Act 1995 (WA) (LG Act). It is designated a ‘city’ further to section 2.4 and 2.5(1) of the LG Act. The City is a body corporate, with the capacity of a legal person and can be sued in its name by reason of section 2.5(2), (3) and (6) of the Act.
Section 3.59 of the Act expressly addresses commercial enterprises by local governments. By section 6.15 of the Act, a local government may receive revenue and income from a number of different sources in addition to rate and services charges.
The City’s activities include commercial and land leases, an agreement on royalties from a small power station (at its landfill), a marina (that charges commercial fees), and a commercial landfill that included a re-cycled goods shop…
On 7 April 2020, at I found a document that is represented as the City’s Annual Business Plan for 2019/2020. I understand from page 4 and 5 of this document under the heading ‘Operating Income’ that the City’s total income for the period is anticipated to be around $157M of which fees and charges are budgeted to be $29.36m (about 18.7% of income). 13
The bullying complaint and leave
[20] The day before Mr Cain emailed his bullying complaint to the Elected Members, he received an email from Councillor Allen, who had forwarded an email concerning issues at a property where the occupants had burned material generating purported toxic fumes. Councillor Allen’s email dated 22 October 2019, and addressed to Mr Cain, and two of the City’s Executive Team, stated ‘[W]hen are we going to grow some balls and act on this location?’. 14 Mr Cain’s response to Councillor Allen’s email was to forward it to Mr Arndt (Director of Planning and Development), requesting him to file it, add it to the chronological summary, and note to Councillor Allen that his remarks are not acceptable (referencing the Elected Members’ Code of Conduct).15
[21] Mr Cain said that on 23 October 2019 he sent an email to each of the Elected Members 16 and a letter to Mayor Howlett17 outlining that over a long period, the three Elected Members had engaged in repeated behaviour toward him that had resulted in him feeling depressed, stressed and exhausted.18
[22] The email dated 23 October 2019 to Elected Members outlined a series of complaints that had been made against Mr Cain over a period. In brief those complaints included:
a) a complaint lodged several years ago by a former Elected Member to the Corruption and Crime Commission (CCC). The CCC handed the matter over to the Public Sector Commission (PSC) who found that the complaint was of no substance and subsequently dismissed it;
b) a complaint by an Elected Member in 2018 by way of an ‘anonymous’ letter to Mayor Howlett outlining a series of grievances and allegations. Mr Cain advised Mayor Howlett that the City’s Director of Governance and Community Services would review the complaint and report back his findings to Mayor Howlett, which occurred. The complaint was unsubstantiated; and
c) innuendo with regard to the CEO Review and Performance Assessment process (discussed at an August Council Meeting). Mayor Howlett was briefed, and Mr Cain referred the matter to the PSC, who through the governing body of the sector, the Department of Local Government, Sport and Cultural Industries, appointed a senior investigator to assess the complaint. The complaint was unsubstantiated and dismissed. 19
[23] Mr Cain further explained in his email dated 23 October 2019, that over the past month all he had virtually done in his role was to process complaints that involved Elected Members. 20 Mr Cain noted that the Local Government Act 1995 (WA) (Local Government Act) did not cite behaviour management of Elected Members as a core function of a CEO, but this was, according to Mr Cain, what had occurred.21
[24] Further to the processing of complaints, Mr Cain raised that for almost a decade he had been subjected to a steady increase in inappropriate behaviour toward him. 22 This behaviour, which started off as the occasional derogatory remark, had evolved into a sustained process of harassment and bullying.23 Examples provided included derisory conduct, false allegations, excessive communication and a range of other hostilities.24 Mr Cain identified that much of the behaviour had come from one individual.25
[25] Mayor Howlett gave evidence that Mr Cain’s personal assistant, Ms Spearing, delivered the letter of 24 October to his office on 24 October 2019. 26 The envelope was marked confidential27 and Mayor Howlett confirmed that he did not show it to anyone else.28 Regarding the contents of the letter, Mayor Howlett stated that he did not understand that the content of letter referred to any action he may have taken towards Mr Cain.29
[26] In the letter to Mayor Howlett of 24 October 2019, Mr Cain identified the one individual referred to in the email dated 23 October 2019; as Councillor Smith. Mr Cain stated in his letter that Councillor Smith had been elected in October 2009, and in October 2017 was also elected by the Council as its Deputy Mayor, which she had held until the expiry of the term in October 2019. 30 Mr Cain thereafter proceeded to list seven events over the course of 2011- 2019, in which there had been incidents (related to alcohol consumption) concerning Councillor Smith, which he had been left to deal with.
[27] The letter of 24 October 2019 then proceeded to detail examples of Councillor Smith’s behaviour towards Mr Cain, it read:
• Email 14 November 2013 (attachment 5) criticising the conduct of the community meeting that had kicked off the Cockburn Community response to the Local Government Reform announcements.
• Email 12 April 2017 (attachment 6) that included remarks:
"You are sooooooo missing the point Stephen. How misinformed you are around mental health and inclusion. That's frightening!
• Email 9 June 2017 (attachment 7) that included remarks to me:
"I have very grave concerns regarding the leadership being shown.
If it was not for the integrity and good values displayed by our Mayor I would really struggle to work beneath such concerns."
• While I provided further guidance to Cr Smith on the background to the issue, her response to me on 9 June 2017 (attachment 8) became more personal·stating:
"You are missing my point- very convenient of you.
I am not responding any further and like I said 'you have to sleep at night"'
• On 22 March 2016 (attachment 9) it became necessary to write to Cr Smith about her conduct and the impact it was having on the Administration, especially the generation of excessive email and interference with operational matters.
• On 10 May 2018, prior to consideration of a planning item (14.3) for the May Ordinary Council Meeting; Cr Smith made public statements to all Elected Members and staff present that were highly critical of me. In this instance she had been cautioned about engagement had with the developer (item proponent) and an Alternative Recommendation made by her. Cr Smith's own actions on this matter were unlawful and subsequently resulted in a Standards Panel complaint being lodged and upheld (complaint 60 of 2018.)
• On 30 May 2018 (attachment 10) a further letter of advice was issued about Elected Member behaviour towards staff; the majority of the staff complaints related to Cr Smith's behaviour.
• On 18 June 2018 (attachment 11) another letter was sent to Cr Smith complaining about her conduct.
• On 3 August 2018 Cr Smith sent an email to the Executive group alleging staff concerns stating:
"I would just like to add that over the last few months the mayor and I have also received multiple anonymous concerns from multiple staff to [sic] frightened to give feedback"
• On 6 August Mayor Howlett sent two further emails (attachment 12), the first at 3:25pm, the next at 3.57pm, which included a formal response to Cr Smith's allegation in which he stated:
"I advised you that I have not received multiple anonymous concerns from multiple staff ... "
• On 9 August 2018 (attachment 13) Cr Smith was asked to substantiate her remarks, but refused to do so.
• On 9 February 2019 (attachment 14) sought permission to attend a training event, including the following statement:
"Appreciate it's a long shot given my last name is not Terblanche."
• On 20 September 2019 (attachment 15) a complaint was sent to Cr Smith and Cr Eva about their poor behaviour in front of guests and staff. When it was pointed out to Cr Smith that she had initiated the incident she simply dismissed the comments.
• On 14 October 2019 (attachment 16) Cr Smith sent an email to the Executive and copying the City's Communications Manager with the heading of 'Stalking'. That email included imagery from my personal Facebook page with the direct inference in the email that I had been stalking her. This mortified me and advice was provided that simply explained how such connections could occur (see emails 14 October 2019). 31
[28] The letter of 24 October 2019, set out that from 2010, Councillor Smith had engaged in a steadily increasing level of hostility and inappropriateness directed towards Mr Cain. 32 Mr Cain noted that in his role as CEO he had formally advised her, counselled and at times cautioned her when necessary; all to no effect.33 Mr Cain expressed that many of the issues that had been raised in his letter of 24 October 2019, were covered by the Elected Member Code of Conduct (Code), however, adherence to the Code remained a voluntary undertaking and notwithstanding breaches of the ‘Rules of Conduct’ had been lodged – such statute did not provide general protection for himself from the retaliatory behaviour of Councillor Smith.34
[29] In both the email dated 23 October 2019 and the letter of 24 October 2019, Mr Cain outlined that his personal mental health and physical health had been significantly impacted – necessitating medical care, pharmacological support and other assistance. In the email, Mr Cain stated:
This situation has had a sustained and substantial impact on my mental and physical health. I have constant headaches, am constantly fatigued, succumbed to a second instance of shingles in the past two years and am now taking other medications to deal with the stressful environment I have been placed in. I am exhausted. The staff have seen the direct impact it is having on me and my Executive has urged I take time off; recognising that I am struggling to fulfil my role under this burden. This morning my GP has also prescribed rest and other support measures. 35
[30] Mayor Howlett gave evidence that on 24 October 2019, he attended an informal meeting of Elected Members, with the exception of one Councillor. 36 The Executive Team were in attendance, comprising of Mr Downing, Mr Green (Director of Governance and Community Services), Mr Arndt, and Mr Sullivan (Director of Engineering & Works).37 The topic of discussion was Mr Cain’s email dated 23 October 2019.38
[31] From the evidence of Mayor Howlett, it is evident that those at the meeting held a view that immediate action was required to ensure Mr Cain’s health and well-being were protected, 39 an independent investigator should enquire into Mr Cain’s complaint,40 workers’ compensation forms should be made available to him and the Employee Assistance Program,41 he should be informed that he did not need to concern himself with Council business and needed to rest,42 and there should be a restriction put in place regarding emails, otherwise he would continue to expose himself to the workload.43
[32] By letter dated 28 October 2019, 44 Mayor Howlett acknowledged receipt of Mr Cain’s medical certificate, which certified Mr Cain unfit for work for the period of 23 October 2019 to 8 November 2019, and Mr Cain’s allegations of behaviour which he believed constituted bullying and/or harassment.45 Mayor Howlett went on to explain that an external consultant would be engaged to investigate Mr Cain’s allegations, and that he would not be required to attend work until the investigation was completed and Council had given due consideration to the investigative report.46 In the letter, it was explained that Mr Cain’s focus was to be on his physical and mental health, and that to ensure the necessary separation from work issues Council had requested that his IT system access (including email) be temporarily suspended for the duration of his absence.47
[33] The letter of 28 October 2019, further informed Mr Cain about the City’s Employee Assistance Program, provided a Workers’ Compensation Claim Form (in the event Mr Cain elected to make a claim), and identified Mr Downing or the Manager of Human Resources as a point of contact. 48
[34] Mr Cain gave evidence that on 4 November 2019, without notice to him, the Council held a SCM and made a resolution to the effect that he would be placed on ‘special paid leave’ whilst an investigation took place. 49 This was despite the fact, said Mr Cain, that he was still on sick leave.50
[35] Mayor Howlett explained that as Mayor he can call SCMs. 51 The procedure for doing so is set out in the Local Government Act1995 and the City’s Standing Orders.52 He called a SCM for 4 November 2019, to enable the Council to consider and resolve to make decisions in a formal Council Meeting on how to address and resolve Mr Cain’s bullying complaint.53 That part of the meeting was held behind closed doors, meaning the public were excluded, and representatives of the law firm Jackson McDonald were present.54 At the SCM, Council resolved to initiate an investigation in Mr Cain’s bullying complaint and to place Mr Cain on special paid leave while the investigation was taking place (therefore precluding him from work and work related functions).55 At hearing, it was explained that instead of Mr Cain exhausting his personal leave, the Council saw fit to place him on special paid leave.
[36] According to Mr Cain, he initially sent correspondence to Mayor Howlett and thereafter there was correspondence between his lawyers, Allion Partners, and Jackson McDonald, who represented the City, about his objection to being unilaterally placed on ‘special paid leave’ as there was no basis under his employment contract to do so. 56 Mr Cain said he understood from the correspondence, he was being kept away from the workplace to protect his safety and wellbeing pending an investigation into his bullying complaint.57 While the City informed Mr Cain that reliance was placed on the Bullying Policy to take the action it had, Mr Cain said he disputed this (noting that notwithstanding his request, a full copy of the Bullying Policy had not been provided).58
4 November Council resolution
[37] With regard to the 4 November Council resolution, Mr Cain stated Councillor Smith was involved in the SCM – despite it being evident from his bullying complaint that she was the subject of the allegations he had made. 59 Further, Mr Downing, from what could be seen of the minutes of the SCM, made the recommendation regarding the special paid leave.60 The minutes of the SCM at point 10 ‘Council Matters’ note that the author was Mr Downing, and the recommendation was to provide the CEO with special paid leave.61
Media coverage of the 4 November Council resolution
[38] Mr Cain gave evidence that his feelings of stress, embarrassment and humiliation were heightened by media coverage after the 4 November Council resolution. 62 Mr Cain observed that he was informed of the 4 November Council resolution by letter of 6 November 2019 that arrived at his home on 7 November 2019. However, Mr Cain stated on 5 November 2019, he was informed by the CEO of the City of Belmont that there had been a segment on the Channel 9 news about the reported outcomes of the SCM held on 4 November 2019.63
[39] Mr Cain provided further detail of media reports, enquiries by media outlets by phone, and the presentation of the media to his house and that of his mother. 64
City’s direction on 6 November 2019 and subsequent correspondence
[40] Mr Cain stated the letter of 6 November 2019 from Mayor Howlett informed him the City had ‘resolved’ that he not attend work or work-related matters - including addressing emails, or attending functions, events, conferences and related travel until ‘the matters’ were resolved. 65 Mr Cain said that in correspondence between his lawyers and Jackson McDonald, he argued to no avail, it was not open to the City to make such resolution.66 However, the letter of 6 November explained ‘…Council felt that it was obliged, under safety legislation to ensure that you were not required to attend work or attend work related matters until the matter had been investigated…. Consequently, I confirm that on 4 November 2019 the Council resolved to provide you with special paid leave pending the outcomes of the investigation…’.67
[41] On 15 November 2019, Mayor Howlett sent a letter to Mr Cain advising him of the appointment of an investigator, and that the investigator wanted to meet with him. 68 By email dated 18 November 2019, Mr Cain responded to Mayor Howlett, noting he was happy to assist the City with its investigation, and he had a number of questions about the conduct of the investigation and its terms of reference.69
[42] By letter of 21 November 2019, Mayor Howlett confirmed receipt of Mr Cain’s medical certificate certifying him unfit for the period 15 November 2019 to 8 December 2019. Regarding the terms of reference for the investigation, Mayor Howlett responded these had been set by the Council and the investigation would be conducted accordingly. 70 Further, the City was investigating Mr Cain’s concerns about the City not providing him with a safe working environment.71 Mr Cain had previously raised the issue of the City reimbursing him for reasonable legal costs regarding the investigation. Mayor Howlett referred Mr Cain to the relevant policy on indemnifying employees for legal costs.72
[43] On 25 November 2019, Mr Cain emailed Mayor Howlett, having copied in Mr Downing, and stated, among other matters:
Dear Logan
Further to the email I have sent this morning, I refer to that part of your letter dated 21 November 2019 concerning my legal fees and observe as follows:
1. As I have already suggested in correspondence, the investigation will not be effective without access to a lot of material that is confidential and that I do not think will be able to be accessed by the investigator, but which I have knowledge of. I need legal assistance in the investigation to help protect both me and the City from any inadvertent disclosure by me of that confidential information and in order that I can best assist the City with the matters to be investigated.
2. Further, in my experience, the investigation is not the usual workplace variety given the nature of my complaint, which concerns the conduct of elected members of the collective group of persons that runs the City (the Council of the City) which, in turn, has as its objective the provision of good government for the persons in its district. The investigation is a proceeding that has been commissioned by the City through its legal advisors, and the investigator is acting on instructions from those legal advisors, Jackson McDonald.
…
5. The City has initiated the investigation, which will necessarily involve me. There can be no suggestion that I acted improperly in making my complaint. To the contrary, I consider that I was duty bound to do so given the nature of my complaint relates to the Conduct of Elected Members.
6. Also, in light of the above matters, I consider that it would not be procedurally fair for me to have to deal with investigation without legal representation. 73 (bold my emphasis).
[44] Mayor Howlett gave evidence that, on 25 November 2019, he received an email from Mr Cain that referred to the direction not to attend work and the employment restrictions (IT/email access) as set out in the letter of 28 October 2019. Those directions predated the SCM on 4 November 2019. 74 Mr Cain sought clarification how and under what authorisation the ‘Council has requested’ the actions described in Mayor Howlett’s letter of 28 October 2019.75 The email further outlined that Mr Cain could not see any reason why he needed to await the completion of the investigation before returning to work, and he was confused by the reference to ‘special paid leave’ when he was currently on sick leave.76 Having referred to the work activities he would be unable to complete if precluded from returning to work on 9 December 2019, Mr Cain concluded the email of 25 November 2019, stating:
…I consider that such action would be adverse to me in that -
1. the inference would be that I was suspended because of conduct on my part that made it necessary for the City to ban me from the workplace;
2. such an inference would be damaging to my reputation;
3. at the same time, I would be prevented from enhancing my reputation by being able to attend to these and other matters as CEO after 9 December 2019.
The apparent reason for the City and each of the Elected Members when they made the resolution to take such adverse action against me would appear to be because of my complaint. I consider that would not be a proper reason for the taking of the adverse action by the City and the Elected Members.
[45] Mr Cain’s email dated 25 November 2019, continued at length to address:
a) the lack of notice of the SCM on 4 November 2019 (contrary to established City protocols requiring advice of any pending matter before Council to be advised to the ‘Proponent(s)/Submitters’);
b) he was not advised of the outcome of the SCM on 4 November 2019, until 6 November 2019, conduct which was inconsistent with the duty of good faith owed to him by the City;
c) his correspondence to the City dated 23 October 2019 was marked ‘Private and Legal in Confidence’ and yet details of the correspondence were referenced in the SCM agenda (which is available to the public), therefore constituting, in Mr Cain’s view, a breach of confidentiality;
d) extensive media coverage saw Mr Cain being advised of employment decisions by the media prior to any advice of the City (breach of the City’s duty of good faith owed to him);
e) Councillor Smith posted a link to the SCM agenda on her Facebook page citing ‘Special Council Meeting relating to the CEO’s allegations of an unsafe workplace and unfit to attend work’ and ‘I look forward to any investigation triggered by the CEOs unsafe workplace claims and wish him well in his mental health recovery’, this, said Mr Cain, constituted an action inconsistent with Local Government (Rules of Conduct) Regulations 2007;
f) reasons for being provided with the terms of reference;
g) restoration of full access to all of Mr Cain’s email to allow him to deal with the investigation. 77
[46] Mayor Howlett responded to Mr Cain’s email dated 25 November 2019, by letter of 28 November 2019, explaining that in his email to the Elected Members dated 23 October 2019, Mr Cain had stated that the steady increase in inappropriate behaviour towards him… had ‘evolved into a sustained process of harassment and bullying’. 78 In addition, Mr Cain had outlined the impact the behaviour and workplace environment had on him, and as a consequence the Council had, at the SCM on 4 November 2019, resolved to:
a) initiate an investigation as per the Terms of Reference contained in the legal advice attached under separate confidential cover, and consider the outcomes and advice arising from the investigation at a further Meetings; and
b) provide the CEO with special paid leave whilst the investigation takes place, on the basis that he is not to return to work or attend work related functions pending the outcomes of the investigation being considered by the Council. 79
[47] By email dated 25 November 2019, Councillor Smith asked Mr Downing: (a) for a copy of Mr Cain’s contract extension; (b) to clarify whether Mr Cain was on sick leave or special leave; and (c) for information on Mr Cain’s last medical check-up. 80 On 26 November 2019, Mr Downing appears to have provided a copy of the contract extension letter, clarified that Mr Cain was on special leave, and was unable to answer the last question asked.81 A further email from Councillor Smith read:
So because 7 out of the 10 Elected Members voted to renew the contract even though it was not up for renewal for another 12 months we now have a 5 year commitment to Mr Cain. I also note the decision ignored the recommendation of the CEO Performance review committee who agreed to look at the renewal at a later date. If for some reason we were obliged to pay Mr Cain out what would the total amount be? 82
Investigation of the bullying complaint
[48] Mr Cain stated that he understood that Jackson McDonald appointed Dr Sitlington to investigate his bullying complaint having considered the correspondence between Allion Partners and Jackson McDonald. 83 Mr Cain said he met with Dr Sitlington on 5 December 2019. However, he considered he was unable to prepare as well as he would have preferred because he had been denied access to workplace materials that would have assisted, and he was denied a copy of the Terms of Reference for the investigation.84
[49] It appears that Dr Sitlington generated a document titled ‘Particulars of Complaint’ and one titled ‘Summary of Attachments’. 85 Mr Cain expressed that Dr Sitlington’s ‘Particulars of Complaint’ is a summary of his bullying complaint but not a complete record of what was discussed.86
[50] The evidence shows that Dr Sitlington met with Mr Downing on 7 January 2020 87 and Mayor Howlett on 8 January 2020.88 Mayor Howlett gave evidence that during February 2020, Mr Downing informed him that Dr Sitlington had provided a report to Jackson McDonald who were in the process of reviewing that same report and preparing written legal advice on the Doctor’s findings and what actions the City could take in response.89
[51] Mr Downing gave evidence that the bullying investigation was completed, Dr Sitlington prepared an initial report and a supplementary report, 90 and those reports were provided to him from Jackson McDonald on or about 3 March 2020. On 4 March 2020, Mayor Howlett sent to Mr Downing a letter calling for a SCM on 11 March 2020.91 The SCM occurred on the proposed date, and whilst most Councillors were in attendance, Councillor Smith was not, due to her suspension issued by the State Administrative Tribunal for two months from 3 February 2020 to 3 April 2020.92
[52] Regarding the instructions provided on behalf of the City to its lawyers, Mr Downing stated he had, in all meetings with the City’s legal advisors, included at least another representative of the City – predominately a Mr Don Green, and in his absence, Mr Arndt. 93 Mr Downing explained that he wanted other members of the Executive Team involved in instructing the City’s legal advisors and considering their advice to demonstrate it was not only him as the Acting CEO engaging lawyers in this matter, but him on behalf of the City with the support of the key members of the Executive Team.94
Attempt to return to work
[53] By email dated 28 November 2019, Mr Cain informed Mayor Howlett there was no proper basis for the Council to place him on special paid leave under his contract – and again referred to such conduct being improper and adverse action against him because of his complaint. 95 In short, Mr Cain’s grievances included among others:
a) there was no basis for Mayor Howlett to purport to enforce a Council resolution by directing Mr Cain to adhere to it; and
b) there was no proper basis for the Council to make the resolution in the first place – there being no concept of special paid leave under Mr Cain’s employment contract, therefore a direction to stay away from work and not attend work related matters pending completion of the investigation would be improper as that would constitute adverse action because of his complaint.
[54] Mr Cain noted in his email of 28 November 2019, that as he had not been suspended from duty, he would be attending for work on Monday, 2 December 2019, at 9.00am, to perform his usual duties. 96
[55] Mr Cain gave evidence that the City’s Executive (including Mr Downing), informed him, in substance, they felt bound to follow the Council’s direction and that, therefore, they and his staff would be unavailable to work with him if he returned. 97 Mr Cain said that he did not return to work.98
The outcome of the bullying complaint
[56] Mr Cain said that he understood from a letter of 12 March 2020 authored by Jackson McDonald to Allion Partners that Dr Sitlington completed a report on her investigation at a time that was unknown to Mr Cain. 99 The report was said to have been presented to the Council at a SCM on 11 March 2020.100 On 9 March 2020, Mr Cain discovered on the City’s website that a SCM was to be held 11 March 2020. Having found that a SCM was to be held, he made a request, via the City’s on-line process on 9 March 2020 to make a deputation to that meeting.101 The request was declined by Mayor Howlett and communicated to Allion Partners by Jackson McDonald.102
[57] The letter of 12 March 2020, confirmed that Dr Sitlington’s investigation report was presented to Council for consideration at the SCM on 11 March 2020. 103 The letter set out that the Council had passed the following resolutions at the SCM:
That Council:
1) receive the report;
2) adopt and implement the following initiatives as recommended by Jackson McDonald:
1. Arrange training for the elected members (to be conducted upon Cr Lee-Anne Smith's return from suspension) focussed on building an appropriate employee / elected member relationship framework and training on the issue of workplace bullying (to be undertaken by elected members and the executive of the City);
2. Note any recorded past allegations of inappropriate conduct by Cr Lee-Anne Smith, to determine whether anything needs to be reported to the Standards Panel, is to be examined by the Complaints Officer;
3. Review the Elected Member Code of Conduct and amend any content to clarify acceptable levels of conduct when dealing with employees of the City, noting that this is an interim measure pending the introduction of a mandatory Code of Conduct to be included in the Local Government Act 1995;
4. Review the Elected Member Communications Policy to clarify acceptable levels of conduct between elected members and employees when communicating on matters related to the functions of the City of Cockburn;
5. Appoint the Director, Governance and Community Services to be its Complaints Officer in accordance with Section 5.120(1) of the Local Government Act 1995 (LG Act);
3) once the City has initiated steps to implement these recommendations, the Mayor is to provide written notice to the CEO of the measures that the City is implementing to meet its obligations under the Occupational Safety and Health Act 1984, and any other statutory requirements;
4) update the Crime and Corruption Commission (CCC) and Department of Local Government, Sport and Cultural Industries (DLGSCI) that:
1. The Sitlington Investigation has concluded;
2. The City is considering what measures will be implemented to meet its obligations under the OSH Act and other statutory requirements;
5) provide a copy of the reports and advices to the CCC and DLGSCI on the basis that legal privilege is retained by the City by ensuring that these agencies use relevant powers to seek the reports and advices.
6) provide direct Human Resources and workplace support to the CEO, on request;
7) provide written clarification on the responsibilities of the CEO under the Local Government Act in managing the behaviour of Elected Members;
8) request the CEO to initiate a review of the role and responsibilities of the CEO position to determine whether the job can be redesigned, or workload distributed and provide a report of the review to the Chief Executive Officer Performance & Senior Staff Key Projects Appraisal Committee Meeting in July 2020;
9) conduct a mentoring exercise between the CEO and all elected members within two (2) months to ensure an understanding of the roles of all parties;
10) conduct a mentoring exercise between the CEO and the Mayor to ensure the liaison role between these two positions (as specified in Sections 2.8(1)(f) - Role of the Mayor) and 5.41 (e) of the LG Act) are clearly identified and understood;
11) review the functionality of briefing sessions to ensure that protocols and guidelines are clearly understood and implemented. 104
Allegations of misconduct against Mr Cain
[58] Mr Downing gave evidence that around 20 November 2019, the City became aware of potential allegations of misconduct against Mr Cain. 105 However, before this date some enquiries had ensued.
[59] According to Mr Downing, on 11 November 2019, the online edition of the West Australian published an article regarding Mr Cain and included was a link to pictures of two pages (Newspaper Document). 106 The article was subsequently reposted on the Facebook pag of Councillor Smith.107 Mr Downing stated that around 11 November 2020, he was asked by Elected Members if he knew who had leaked the statement of Mr Cain (Newspaper Document).108
[60] On or around 20 November 2020, Mr Downing, with others from the City, had a conference call with Jackson McDonald and it was noted the document in the link in the West Australian was not the same as the complaint sent by Mr Cain to Elected Members on 23 October 2019 and copied to the Directors of the City. 109 Mr Downing asked a Mr McKinley to compare the two versions – Mr Cain’s bullying complaint dated 23 October 2019 with the Newspaper Document. Mr McKinley surmised that the Newspaper Document appeared to be a draft of the formal complaint emailed on 23 October 2019.110 In following this up, Mr Downing thereafter instructed Mr Fellows, the City’s Manager of Information Services, to check the City’s systems to see whether it was only the ‘Council Version’ of the Mr Cain’s complaint that had been sent to Elected Members as opposed to the Newspaper Document.111
[61] Having conducted a search of Mr Cain’s emails, it was identified that on 23 October 2019, Mr Cain had sent an email to persons working at other local government locations such as Swan, Kalamunda, Rockingham and Gosnells informing them of his leave of absence due to ‘[S]ustained harassment and personal attacks, in fighting within the EM group along with constantly dealing with the Standards Panel complaints’. 112
[62] According to the evidence given at hearing, Mr Downing had received feedback that an external consultant reported Mr Cain had been at a work-related event whilst on special paid leave. 113
[63] Mr Downing gave evidence that he and Mr Green sought advice from Jackson McDonald about these matters (the three above matters) and advised Elected Members of them. Mr Downing said that he did so, because as Acting CEO, he believed he was required to notify Council of potential allegations of misconduct that had come to his attention.
[64] In response, Mayor Howlett called for a SCM on 4 December 2019. At the SCM, the Council resolved to put three allegations of misconduct to Mr Cain, to suspend him on pay and to engage an independent investigator to investigate the misconduct allegations (the December Resolution). 114
[65] The evidence of Mr Downing aligns with that of Mr Cain, who said that he received a letter of 6 December 2019 from Mr Downing informing him of three allegations of misconduct against him. 115
[66] A further letter of 12 December 2019, was provided to Mr Cain, setting out the particulars of the allegations of misconduct. 116 The first allegation concerned the email dated 23 October 2019, a version of which Mr Cain was alleged to have provided to another person, including but not limited to a person involved in the media.117 The letter of 12 December 2019, set out that a newspaper article, in the online edition of the West Australian newspaper published a story titled ‘Cockburn CEO Stephen Cain’s bombshell email to councillors reveals cause of stress leave’, included in the story were pictures of two pages (Newspaper Document).118
[67] While the letter of 12 December 2019 acknowledged that the Newspaper Document was not the email of 23 October 2019, several observations were made that included that the Newspaper Document appeared to be a revised version of the email dated 23 October 2019. 119 A further observation was that the Newspaper Document had a handwritten annotation highlighting a spelling mistake regarding the word ‘though’ – the email dated 23 October 2019 read ‘through’. It was, in addition noted, the Newspaper Document had the name Stephen Cain in the top left-hand corner of the document. The letter continued, ‘when a person prints an email or draft email displayed in his/her email viewer (e.g. Outlook), his/her name is printed in the top left-hand corner of the email.120
[68] The second allegation set out that Mr Cain had sent an email titled ‘Leave of Absence – In Confidence’ dated 23 October 2019 to other local government CEOs. 121 The third, that Mr Cain had attended a NGAA National Congress Conference on or about 10 November 2019 whilst on special paid leave and that he was instructed not to attend work or any work-related matters at this time.122
[69] Mr Cain was informed via the letter of 12 December 2019, a Mr Brendan Cusack of Cygnet Workplace Investigations would investigate the allegations. Mr Cusack had been engaged by Jackson McDonald. 123
[70] For various reasons, the workplace investigation into Mr Cain’s misconduct appears to have been on foot for a couple of months. During December 2019 and January 2020, two scheduled interviews were arranged for Mr Cain to meet with Mr Cusack. With regard to the interview scheduled for 20 December 2019, Allion Partners informed Jackson McDonald on the morning of the interview that Mr Cain would not be attending. 124 They asked for the meeting to be rescheduled the week commencing 6 January 2020 as the Allion Partners office was closing down for Christmas.125 While a second interview was scheduled for early January 2020, Mr Cain did not attend, citing that the direction to attend the interview was not a lawful and reasonable direction.126
[71] By letter of 17 January 2020, Allion Partners informed Mr Cusack that ‘[W]e did not consider that it was necessary for us to do anything more than that because, as noted in our letter, on behalf of our client, we have corresponded with Jackson McDonald, the lawyers for the City of Cockburn, in relation to this matter. Included in that correspondence is our client’s position on the issues pertaining to the allegations that have been levelled against him by the City’. 127 The letter referred to in the correspondence to Mr Cusack, appears to be the letter authored by Allion Partners of 12 December 2019, in which responses were provided to the three allegations.128
Media coverage of the allegations of Mr Cain’s suspension
[72] On 12 December 2019, Mr Cain said that he read an article in ‘The West” with the headline ‘The Wash-Up on the Suspended CEO’. The article was sub-headed ‘Council fat cat on $380k “not back at work until 2020”’. 129 Mr Cain stated that the article disclosed information that had been discussed in at the SCM on 4 December 2019.130
Contacting Elected Members and a draft workplace bullying application
[73] Mr Downing gave evidence that Mr Cain was provided with a direction from Council that he not contact any of the Elected Members during the workplace investigation. 131 However, Mr Downing stated he was aware that during the investigation, Mr Cain’s legal representatives made contact with Elected Members on several occasions.132 On 8 January 2020, Allion Partners sent copies of a draft bullying application that was proposed to be filed in the Fair Work Commission, to Councillors Kirkwood, Terblanche, Eva, Separovich, Stone, Corke and Widdenbar and thereafter on 10 January to Mayor Howlett and Councillor Allen.133
[74] Mr Downing stated Mr Cain also instructed Allion Partners to write to him on 10 January 2020 attaching a draft bullying application. 134
[75] The draft bullying application received by Mr Downing described, at Attachment B, the behaviour that Mr Cain considered constituted bullying – levelled at Councillor Smith, Councillor Allen, Mayor Howlett and Mr Downing:
1. Harassment of the applicant by the respondents including by, without limitation, failure by the respondent, Mr Stuart Downing, to abide by the City’s Council Meeting policy in not providing the applicant with advice of the conduct of a Special Council Meeting on 4 November 2019 that was specifically in relation to the applicant; and failure to notify the applicant of the outcomes of that Special Council Meeting until after it had been extensively covered by the media.
2. Derogatory and defamatory comments by the respondents Councillor Smith and Councillor Allen.
3. Breaches by the respondents Councillor Smith and Councillor Allen of the City of Cockburn’s Elected Members Code of Conduct and the Elected Members Communication Policy.
4. Failure by Mayor Howlett to liaise as required with the applicant concerning breaches by Councillors of the City of Cockburn’s Elected Members Code of Conduct.
5. Denial of procedural fairness by the City of Cockburn by failing to ensure that the respondents Councillors Smith and Allen refrain from discussing and considering and/or determining the applicant’s bullying complaint.
6. By reason of the matters set out in the preceding paragraph, failure by the City of Cockburn to comply with its Bullying Policy.
7. Unlawful and/or unreasonable direction by the City of Cockburn to the applicant to take purported ‘special paid leave’ even though the applicant was then on authorised sick leave.
8. Imposition of a ban by the City of Cockburn on the applicant from attending work-related functions and events because of the unlawful and/or unreasonable direction by the City of Cockburn to the applicant to take purported ‘special paid leave’.
9. Denial by the City of Cockburn of the applicant’s access to workplace email on the basis f the unlawful and/or unreasonable direction by the City of Cockburn to the applicant to take purported ‘special paid leave’.
10. Denial by the City of the applicant’s access to the workplace on the basis of the unlawful and/or unreasonable direction by the City of Cockburn to the applicant to take ‘special paid leave’.
11. By reason of one or more of the matters set out in paragraph 7,8,9 and 10 above, breaches by the City of Cockburn of the contract of employment between it and the applicant.
12. Denial of procedural fairness by the City of Cockburn in denying the applicant access to documentation necessary to allow his proper participation in the investigation into his bullying complaint.
13. Allegations of misconduct made by the City of Cockburn against the applicant because he made the bullying complaint.
14. Baseless allegations of misconduct made against the applicant.
15. Substitution of fresh allegation of misconduct against the applicant without proper authorisation of such by the Council of the City of Cockburn.
16. Knowing involvement of the respondent Stuart Downing with the actions complained of by the City of Cockburn.
17. Failure by Councillors Smith and Allen to refrain from discussing and considering and/or determining the applicant’s bullying complaint and the allegation of misconduct levelled against the applicant.
18. Failure by the City of Cockburn to engage in mediation as required by cl.15.1 of the contract of employment made between it and the applicant. 135
[76] Covering letters to the draft workplace bullying applications directed to Councillors Allen and Smith, Mayor Howlett and Mr Downing set out that they were to let Allion Partners know by close of business on 15 January 2020, whether they wished for Allion Partners to personally serve them with the final application document. Evidence given by the four aforementioned persons, was that they did not receive a final application document until such time as an application was filed with this Commission on 6 April 2020.
Pending SCM in April 2020
[77] Mr Cain gave evidence that in a telephone conversation on 7 April 2020 with Ms Julia Klobas, a former employee of the City who held the position of Personal Assistant to Mr Cain, he was informed that she had been told by Councillor Smith on 6 April 2020 that another SCM was being called ‘for next week’. Mr Cain said he had not received any notice from the City and was otherwise unaware of any such proposed SCM. 136
Legislative framework
[78] The Commission is established by the Act and derives its powers from the same. It is not a Court of record. Its functions are set out in s.577 and the matters it is required to take into account in performing its functions are prescribed in s.578.
[79] In Re George 137 the jurisdiction of the Commission was further examined. The relevant paragraphs at [30] –[32] are extracted below:
[30] I would also accept that the Commission might need to form some views about the apparent legal validity of various decisions and actions in order to determine its jurisdiction to deal with matters. For example, assuming the Commission otherwise had jurisdiction, this could include forming a view about whether the conduct of the parties in light of the purported resolutions was unreasonable so as to potentially form part of findings relevant to s.789FD of the FW Act – whether there has been bullying conduct. In forming those views, even on these and other legal questions, the Commission is not exercising judicial power.
[31] For this and other purposes, the Commission may also have regard to legislation made by State Parliaments, in this case South Australia, and other instruments, and determine relevant legal and factual issues provided they properly arise within a jurisdiction established by the FW Act.
[32] However, even when the Commission needs to form a view on a legal question in order to find or exercise its jurisdiction in matters of this particular nature, those views do not of themselves actually declare the legal rights more generally. For example, the Commission could not conclusively determine for purposes beyond its jurisdiction whether the SGM and SEM, were at law validly convened or whether the apparent resolutions were at law validly passed and complied with the various requirements of the APY Act. Ultimately, only a Court of competent jurisdiction (a Court of record) could make a binding declaration on those matters.
[80] Part 6-4B of the Act sets out the provisions which are in part, relevant to the application. Included is s.789FC, which prescribes who may make an application for an order to stop bullying:
789FC Application for an FWC order to stop bullying
(1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.
(2) For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force.
Note: Broadly, for the purposes of the Work Health and Safety Act 2011, a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.
(3) The application must be accompanied by any fee prescribed by the regulations.
(4) The regulations may prescribe:
(a) a fee for making an application to the FWC under this section; and
(b) a method for indexing the fee; and
(c) the circumstances in which all or part of the fee may be waived or refunded.
[81] The Act provides some clarification as to when one considers a worker has been ‘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.
[82] There is of course a necessity for a relevant future risk concerning the bullying behaviour, which is addressed in the prerequisites that exist for the Commission to make an order, established by s.789FF:
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.
CONSIDERATION
Jurisdiction - ‘constitutionally covered business’
[83] It is evident that Part 6-4B is enlivened in circumstances where the worker is at work in a ‘constitutionally-covered business’ Before turning to consider the term ‘at work’, I note that it was uncontentious that Mr Cain is a ‘worker’ who works in a ‘constitutionally covered business’ and is able to make an anti-bullying application under Part 6-4B of the Act. However, given the employer is the City of Cockburn, and for completeness, the point regarding a ‘constitutionally covered business’ is considered further.
[84] The workplace in this matter is not located in a Territory and there is no suggestion that it is conducted by the Commonwealth or a Commonwealth authority. Assuming, for present purposes, that the workplace is a business or undertaking within the meaning of the Work Health and Safety Act 2011 (Cth), in order to be a constitutionally-covered business and fall within the scope of s.789FD, it must be conducted by a constitutional corporation.
[85] The term ‘constitutional corporation’ is defined in s.12 of the Act in the following terms: ‘constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies’. The Australian Constitution refers to ‘constitutional corporations’ as being: ‘[F]oreign corporations, and trading or financial corporations formed within the limits of the Commonwealth’. Of these types of corporations, only the trading corporation is potentially relevant.
[86] The Full Bench in Gregory James Thurling v Glossodia Community Information and Neighborhood Centre Inc. T/A Glossodia Community Centre 138 provided a comprehensive overview of the law on whether a corporation is a trading corporation, starting with the extraordinarily helpful summary provided by Steytler P in the Western Australian Court of Appeal decision in Aboriginal Legal Service (WA) Inc v Lawrence (No 2).139
[87] The principles outlined in those abovementioned authorities have been adopted and applied when arriving at the conclusion that the City is a constitutional corporation. The evidence relied upon to draw such conclusion included the City’s activities of leasing land and commercial premises, an agreement on royalties from a small power station, a marina (that charges commercial fees), and a commercial landfill that included a re-cycled goods shop. 140 Mr Cain’s evidence was that the operating income was purported to be $157 million for the period 2019/2020 as stated in the City’s Annual Business Plan for 2019/2020, of which fees and charges are budgeted to be $29.36 million (about 18.7% of income).141
The orders sought
[88] Mr Cain first articulated his bullying complaint in his email to Elected Members on 23 October 2019 and his letter to Mayor Howlett of 24 October 2019. The correspondence is detailed and specific. The 24 October 2019 letter included numerous attachments.
[89] Neither email nor letter suggested that Mr Cain had any concerns about his treatment by Mr Downing, Mayor Howlett or Councillor Allen at the time he sent those letters. However, in his application, Mr Cain now contends that Mayor Howlett’s failure to ‘manage’ the Elected Members was an ongoing historical issue and that Councillor Allen had made inappropriate remarks dating back to 2010.
[90] With respect to Mr Downing, Mr Cain states that it can be inferred that as the Acting CEO at all times material to the application, Mr Downing was the person who had taken action against Mr Cain purportedly in the name of the City. The contention thereafter being, Mr Downing’s behaviour could not be characterised as reasonable management action.
[91] One of the prevailing issues that Mr Cain appeared to have with Mayor Howlett, Councillor Allen and Councillor Smith, the triumvirate of Elected Members, was their continued participation in the meetings and affairs of the Council in circumstances where they had a conflict of interest – either actual or perceived, because of the bullying complaint levelled against them. Clearly, this is a tongue in cheek synopsis and an oversimplification of the multitude of behaviours complained of, which are detailed at paragraphs [150] – [212] of this decision.
[92] In short, Mr Cain contends he has been bullied at work and there is a risk he will continue to be bullied at work by the named respondents. Mr Cain sought interim orders, but if interim orders were unavailable, he also sought final orders.
Interim orders
[93] Mr Cain applied for interim orders claiming that, unless such orders were made, the named Respondents in the matter would continue to be involved in, and thereby be able to promote, the taking of disciplinary action against him by the Council, including the termination of his employment, which would render a nullity the relief sought by him.
[94] Some four and a half months after Mr Cain made his bullying complaint, the Council determined certain outcomes from an investigation into that matter by Dr Sitlington (see paragraph [56] of this decision). It was Mr Cain’s view that such outcomes did not appropriately deal with the risk that he will continue to be bullied at work by each of the named Respondents.
[95] At the time of the hearing, the Council had yet to determine the outcome of the misconduct investigation. However, a meeting of the Council was scheduled for 16 April 2020 for this purpose. Mr Cain observed that the named Respondents had variously been involved in determinations by the Council of matters concerning him since he made his bullying complaint, including the allegations of misconduct that were subsequently levelled against him. Mr Cain submitted that the four Respondents should not be so involved in the Council meeting scheduled for 16 April 2020.
[96] In circumstances where the Commission did not accept that it had the power to make interim orders unless first satisfied that Mr Cain has been bullied at work and there is a risk that he will continue to be bullied at work, Mr Cain submitted the Commission could be satisfied of these matters - on the findings of fact which were open to be made, and which should be made.
[97] With respect to the Commission’s power to make the interim orders sought, Mr Cain submitted that the Commission had jurisdiction and power under ss.589(2), 595(3) and 789FF of the Act. Referring to the decision of the Full Bench in South Eastern Sydney Local Health District v Lal 142 (South Eastern), Mr Cain submitted that in that decision there was no disagreement between the parties that the test for interim orders was whether there was a serious question to be tried and the balance of convenience favoured the grant of the orders.143
[98] Regarding the source of such power, it was said that s.589(2) empowered the Commission to make an interim order in relation to a matter before it. Mr Cain contended, in this case, the ‘matter’ was the controversy of whether he had been bullied at work and whether there is a risk he will continue to be bullied at work, in which case the Commission may make any order that it considers appropriate.
[99] A proper construction of s.589(2) of the Act, submitted Mr Cain, did not require that any part of the matter be determined by the Commission before its power is enlivened to make an interim order. Rather, s.589(2) is enlivened once there is a matter before the Commission. If there is such a matter, the Commission can make an interim order in relation to that matter.
[100] It was observed that s.589(2) appears in the context of Subdivision B of Part 5-1 of the Act concerning the conduct of matters before the Commission. The Commission’s discretion to make an interim order pursuant to s.589(2) is not limited to a consideration of any particular matters. Section 577(a) provides that the power must be exercised in a manner that is fair and just. Section 789FE requires the Commission to start dealing with an application made under s.789FC within 14 days, which has been done.
[101] On that basis, advanced Mr Cain, properly construed there is no requirement under the Act that the Commission be satisfied that Mr Cain be bullied at work and that there is a risk that he will continue to be bullied at work before it can exercise its power to make interim orders under s.589(2).
[102] In the decision of Lynette Bayly 144 (Bayly), Ms Bayly applied for an interim order effectively preventing the respondents from continuing with a workplace investigation into her conduct, and from taking disciplinary action against her pending the determination of the application made under s.789FC. The interim order was sought under s.589(2). The respondent argued, in part, that the Commission had been asked to prospectively injunct the employer from possibly dismissing Ms Bayly. That is, the Commission was being asked to essentially use the anti-bullying jurisdiction to step in and prevent a possible adverse action, without consideration as to whether the dismissal was justified.
[103] Having considered ss.789FC, 789FD, 789FF, and the Fair Work Amendment Bill 2013 Revised Explanatory Memorandum, the observations of the Commissioner can be reduced to the following:
a) there are two prerequisites to the making of substantive orders in matters of this kind. Firstly, a finding that the worker has been bullied at work by an individual or a group of individuals; and secondly, that there is a risk that the applicant worker will continue to be bullied at work by the individual or group concerned; 145
b) where there is no risk that the applicant worker will continue to be bullied at work by the individual or group concerned, there is no prospect that the s.789FC application can succeed; 146
c) any orders must be directed towards the prevention of relevant future unreasonable conduct and be informed by, but not necessarily limited to, the prior unreasonable conduct as found. However, any orders must deal with the actual future risk, based upon appropriate findings, and having regard to the considerations established by s.789FF(2) of the Act. 147
[104] Before considering the applicable legal principles regarding interim orders under s.589(2), the Commissioner in Bayly noted that whether the Commission was empowered to make an interim order in connection with a s.789FC application was not contentious and therefore proceeded on that basis. 148
[105] The Commissioner adopted the principles set out in Quinn v Overland (Quinn) as cited in the decision of Australian Manufacturing Workers’ Union v WW Wedderburn Pty Ltd (Wedderburn). 149 In Quinn, Bromberg J explained that an application for interlocutory relief required the consideration to address two main inquiries. The first, whether the applicant has made out a prima facie case in the sense that if the evidence remains as it is, there is a probability that at the trial of the action the applicant will be entitled to relief.150 The second, whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted.151 When considering whether there was a prima facie case and the balance of convenience, the Commissioner said regard was to be had to the substantive application , the jurisdictional context of the application, and the circumstances of the parties.152
[106] The Commissioner in Bayly observed that the approach taken in Wedderburn was on all fours with that adopted by the Deputy President in Worker A, Worker B, Worker C, Worker D and Worker E v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and others listed in Schedule A, 153a decision which similarly involved issuing interim orders in a s.789FC anti-bullying application.
[107] Counsel for Mr Cain correctly acknowledged that, in the Full Bench decision of South Eastern, the question of whether the conditions in s.789FF(1)(b) required satisfaction prior to the making of an interim order did not arise for consideration in the appeal. 154 The appellant had accepted in its appeal that the appropriate test to be applied was whether the application gave rise to a serious question to be tried and the balance of convenience.
[108] However, in the recent decision Leanne Mayson v Myland Health Pty Ltd and others (Mayson) 155 the Deputy President rejected a contention that s.589(2) was a discrete source of power that enabled the making of an interim anti-bullying order, and that the requirements of s.789FF need not be met. He effectively conceptualised the argument before him as a question as to whether s.589(2) enabled the Commission to issue an administrative ‘interim’ injunction in relation to any matter that might be before it, despite what the substantive provisions in question might say about the Commission’s jurisdiction.
[109] Acknowledging that there had been a number of matters in which applications seeking interim anti-bullying orders in the nature of an administrative injunction have been successful, on the basis that the applicant has established a serious question to be tried, together with a favourable balance of convenience (see the aforementioned decisions), the Deputy President observed that it did not appear from those cases that there was any argument about the jurisdictional question. The parties proceeded on a common assumption about the Commission’s power under s 589(2) in the context of an anti-bullying application.
[110] The salient passages are found at the commencement of the consideration in Mayson, they read:
[17] Section 589(2) states that the Commission ‘may make an interim decision in relation to a matter before it.’ It is not an independent source of power to issue interim orders, whether in the nature of interlocutory administrative injunctions or any other temporary decision. Absent a particular ‘matter before it’, the Commission has no power to do anything at all under s 589(2). To the extent that it might be contended that s 589(2) can be used in respect of any ‘dispute’ that might be referred to the Commission, s 595 makes clear that the Commission may deal with a dispute ‘only if (it) is expressly authorised to do so under or in accordance with another provision of this Act.’ Section 589(2) is not such a provision.
[18] The ‘matter’ now before the Commission, for the purpose of s 589(2), is an application made under s 789FC. That application alleges that a worker has been bullied at work. It seeks an order under s 789FF to prevent a worker from being bullied by an individual or group. Any order I make in relation to this application will be an order under s 789FF. The relevant requirements of that section must be satisfied. 156
[111] Having had the opportunity to hear from Counsel for Mr Cain and Counsel for Mr Downing and the City, on whether the Commission had jurisdiction to make interim orders in this matter as requested, I decided it did not, and in doing so I have followed the reasoning of the Deputy President in Mayson.
[112] As was the case in Mayson and for the reasons explained therein, I am not persuaded that s.589(2) is a discrete source of power that enables the making of an interim anti-bullying order, and that the requirements of s.789FF of the Act need not be met.
[113] Section 789FC of the Act provides that a worker who reasonably believes that he or she has been bullied at work may apply to the Commission for an order under section 789FF. I note in this respect, I was satisfied that Mr Cain held such reasonable belief – as will be traversed later.
[114] Section 789FD sets out that which is meant by the phrase ‘bullied at work’. That a person who has made an application has been bullied at work by an individual or a group of individuals is one of the matters about which I must be satisfied before considering whether to exercise my discretion to make an order to stop bullying under s.789FF.
[115] As s.789FF(1)(b) makes clear, I must be satisfied not only that Mr Cain has been bullied at work by an individual or group of individuals but also that there is a risk that he will continue to be bullied at work by that individual or group of individuals.
[116] Therein lays the difficulty for Mr Cain. It seems to me that I have no power to make an order – whether interim or final, to stop bullying, unless I can be satisfied of the two limbs in s.789FF(1)(b). Relevantly I must be satisfied not only that Mr Cain has been bullied at work by an individual or group of individuals but also that there is a risk that at work Mr Cain will continue to be bullied by the individual or group of individuals identified in his application.
[117] From what I have said, it necessarily follows that I do not have jurisdiction to make an interim order to stop bullying –unless the relevant requirements of s.789FF are satisfied. 157
Section 789 FF
[118] Section 789FF of the Act includes three preconditions on the making of an order to stop bullying. They are:
a) the worker made an application pursuant to s.789FC (s.789FF(1);
b) the Commission is satisfied that the worker has been bullied at work (s.789FF(1)(b)(i)); and
c) there is a risk that the worker will continue to be bullied at work (s.789FF(1)(b)(ii)).
[119] Mr Cain advanced that the Commission could be satisfied that Mr Cain had been bullied at work and there is a risk that he will continue to be bullied at work, based on findings of fact that are open to be made, and which he contends should be made.
Reasonable belief - s.789FC(1)
[120] For this type of application, an applicant must ‘reasonably believe’ that she or he has been bullied at ‘work’. For the belief to be considered ‘reasonable’, it must be one that is actually and genuinely held, as well as it being reasonable in an objective sense. 158 When speaking of an ‘objective sense’ it has been said that this in turn means ‘there must be something to support it or some other rational basis for the holding of the belief and it is not irrational or absurd’.159
[121] In the decision of Mac v Bank of Queensland Limited & Others 160 (BOQ), the Vice President expressed that it can be anticipated that in most cases it will not be in dispute that the applicant reasonably believes he or she has been bullied at work, such as to permit the making of an application under s.789FC(1), and the Commission will be able to find without difficulty that the first prerequisite in s.789FF(1) is satisfied.
[122] In BOQ, the Vice President referred to the belief of being bullied at work being a ‘reasonable belief’ in the sense it has something tangible to support it and is not entirely irrational, absurd or ridiculous. 161 The reference to ‘tangible’ would appear to import that a reasonable belief is one where there is perceptible evidence to support the belief. That is, the belief is not illusory. Further, if the belief is to be reasonable then its premise ought to be one of logic.
[123] In this case, it did not appear to be in issue that Mr Cain held a reasonable belief. The bullying conduct complained of in respect of the three Elected Members and Mr Downing was exhaustively detailed with references to what had been said, and in some circumstances the provision of direct evidence which was said to support the occurrence of the conduct complained about. It was therefore the case that I found little difficulty arriving at the conclusion that the requisite belief was held.
‘At work’ – s.789FF
[124] Section 789FF requires that the bullying occur ‘at work’. In the context of whether the term ‘at work’ extended to circumstances of suspension or personal leave there had, according to Mr Downing and the City, been limited consideration by the Commission. However, Counsel for both Mr Cain and Mr Downing noted the observation of the Vice President in BOQ, 162 where in obiter dicta he stated at para [149]:
…it has not been necessary for me to determine whether all of the pleaded instances of behaviour occurred while Ms Mac was “at work”, although if it was necessary for me to do so, I would have found that many if not all of the instances of behaviour dating after Ms Mac went off work because of illness on 7 March 2014 did not occur “at work”.
[125] The City and Mr Downing similarly directed the Commission’s attention to the decision of Richardson v Optus Retailco Pty Ltd & Ors, 163 (Richardson), which dealt with a s.789FC application. In Richardson it was said that there appeared to be no possibility of a risk of future bullying at work by the named individuals because the applicant in that case was not presently at work, having being stood down pending the outcome of the disciplinary process arising from a co-worker’s complaint.164
[126] The gravamen of the argument for the Mr Downing and the City, was that after 24 October 2020, Mr Cain was not attending work, was not accessing his work email due to restrictions and not attending work related events. Therefore, it was reasonable to infer for the purposes of s.789FF(1)(b)(i) that Mr Cain was not ‘at work’ from 24 October 2019 until the day of the hearing.
[218] By way of observation only, Mr Cain had indicated his intent to make the first application in early January 2020. A relatively unchanged version of the application was ultimately filed in early April. Had Mr Cain been concerned about ‘continued bullying’, it would, in my view, been reasonable to assume that he would not have waited three months to file the application.
[219] It was submitted to the effect that the triumvirate of Elected Members, that is the actors responsible for what was happening to Mr Cain, had reason to be predisposed against him and those same actors were the ones who are making decisions concerning his employment.
[220] The evidence shows that Councillors Smith and Allen were opposed to the extension of Mr Cain’s contract –their evidence in this respect was that they were dissatisfied regarding the process undertaken concerning the contract extension. Further, while Councillor Smith had sought to understand a ‘pay out’ figure if Mr Cain’s contract was brought to an end, the context of the email discussion – again was referable to the process that had been undertaken which resulted in the contract extension. The evidence of Councillors Smith and Allen on these points was compelling. Direct evidence adduced and the oral testimony of both, supports a finding, that it was the process which was of concern.
[221] The gravamen of Mr Cain’s case was that all persons named and involved in making decisions about his employment, had a conflict of interest, were biased, or had an apprehension of bias in matters concerning his bullying complaint. From Mr Cain’s point of view, the bottom line was that he did not seek to oppose the Council determining outcomes of misconduct at the SCM – but his contention was effectively that those accused of bullying should not be the judges, as they might be tainted bias or potential conflict of interest. I do not consider this to be an ongoing risk of future bullying.
[222] The circumstances before me, have not led me to a finding or conclusion that Mr Downing, Mayor Howlett, or Councillor Allen acted unreasonably. Concerning Councillor Smith, she had acted unreasonably repeatedly, but such behaviours, in my view, had been addressed appropriately in the workplace bullying investigation outcomes. The continuing participation of the three Elected Members and Mr Downing in Council meetings did not represent a risk that Mr Cain will continue to be bullied at work. There is already in place a procedural process for Council to follow which addresses circumstances of a conflict of interest or impartiality in Council meetings.
[223] To restrain the Elected Members from voting in matters concerning Mr Cain, is in my view not about addressing the risk of continued bullying, but is about precluding democratically appointed Elected Members from complying with their obligation to vote on certain Council matters in accordance with subordinate legislation. More on this point is traversed at paragraphs [226] to [233].
[224] Therefore, Mr Cain has not made out the final requirement of s.789FF(1)(b)(ii) and his application must therefore not succeed.
[225] For the sake of fulsomeness and notwithstanding my above conclusion, I have briefly addressed other arguments pressed by the City and Mr Downing.
Are the orders sought misconceived?
[226] Counsel for Mr Downing and the City advanced that the only significant, additional orders sought by Mr Cain, which were not addressed in Council’s resolution (see letter of 12 March 2020), are orders which seek to restrain Mayor Howlett, Councillor Smith and Councillor Allen from being involved in any discussions, consideration or voting on resolutions relating to Mr Cain’s bullying complaint and misconduct allegations in their role as Elected Members of the Council, and of course the restraints sought regarding Mr Downing. Having considered those orders, they do not appear to be directed towards the prevention of relevant future unreasonable conduct – they target actual or perceived bias, or as referred to in the language of the three Elected Members, ‘impartiality’.
[227] Section 789FF of the Act provides that if the Commission is satisfied that ss.789FF(b)(i) and (ii) have been met, then it may make any order it considers appropriate. While the use of the word ‘any’ appears to provide the Commission with authority to issue a wide range of orders, the discretion regarding the type of order that may be issued is not, in my view, unfettered. Clearly the order is to be directed towards the prevention of relevant future unreasonable conduct and be informed by, but not necessarily limited to, the prior unreasonable conduct as found. 199 Further, the Commission must take into account any procedure available to the worker to resolve grievances or disputes, or final or interim outcomes arising out of an investigation into the matter, or procedures available to resolve the grievance.
[228] In this matter, the Elected Members’ legal obligations in terms of considering and voting on council resolutions are governed by the Local Government Act and the Local Government (Rules of Conduct) Regulations 2007 (Conduct Rules). Counsel for Mr Downing and the City pointed to regulation 11 of the Conduct Rules which deals with Elected Members’ conduct in circumstances of a potential (non-financial) conflict of interest. An interest is defined in Rule 11(1) as:
interest means an interest that could, or could reasonably be perceived to, adversely affect the impartiality of the person having the interest and includes an interest arising from kinship,
friendship or membership of an association
[229] While the Conduct Rules inform that the council member who has an interest in any matter to be discussed at a council meeting must disclose the nature of the interest, there is no requirement that they are to be excluded because of that interest. Section 5.21 of the Local Government Act sets out the requirements regarding voting. It states:
1) Each council member and each member of a committee who is present at a meeting of the council or committee is entitled to one vote.
2) Subject to section 5.67, each council member and each member of a committee to which a local government power or duty has been delegated who is present at a meeting of the council or committee is to vote.
[230] Section 5.67 of the Local Government Act sits within Division 6 of Part 5 – Disclosure of financial interest and gifts. In this case s.5.67 Local Government Act, is not relevant because it is directed to a conflict of interest that pertains only to a financial interest or gift.
[231] The City of Cockburn Standing Orders Local Law – gazetted in the Western Australian Government Gazette on 22 September 2016 outlines the process to be followed concerning the ‘Declaration of Impartiality Interest’. It provides:
1) In this clause:
Interest under this clause means an interest of a personal nature which a member or employee has in a matter which is not required to be disclosed under Part 19 or Part 20, but which a reasonable person knowing the facts might assume would influence the consideration of that matter by the member or employee. (Examples are applications for an approval consent or licence by a parent, sibling, adult child or close friend of a member or employee).
2) If a member or employee attending a meeting of the Council has an interest under this clause in any matter proposed to be considered at that meeting the member or employee should disclose that interest at the meeting before the discussion of the relevant matter that requires a decision to be made by Council.
3) A member expected to disclose an interest under this clause in a matter shall remain in the chamber or room of the meeting while the matter is discussed and voted upon.
4) In applying the preceding clause, a member must bear in mind the obligation under clause 5.21(2) of the Act to vote at meetings where the member is present.
5) The decision to disclose an interest under this clause is a decision to be made by the member or employee and is not to be determined by resolution of the meeting.
[232] If it were the case that ss.789FF(b)(i) and (ii) were satisfied, I would still have found it inappropriate for the Commission to make orders set out in proposed orders 7-9 in Annexure B of the application. The Western Australian State government has sought to address issues of conflict of interest and impartiality in its subordinate legislation. In circumstances of impartiality, the Local Government Act (see s.5.21), obliges the council member to vote, and there is no requirement that council members who have disclosed impartiality are to refrain from considering agenda items. 200 Were an order were issued in the terms sought at proposed order 7 of Annexure B, it would conflict with the obligations placed upon the Elected Members by the State legislature, and in addition would, in my view, address bias – actual or perceived, not unreasonable repeated conduct (i.e. workplace bullying).
[233] If actual or potential bias of the Triumvirate was the problem, then the issue is one as to whether Council (or the three Elected Members) is properly exercising its powers under its enacting legislation. This, in my view, can only be determined by a Court of competent jurisdiction. While the findings and conclusions reached during the course of writing this decision negate a requirement to address this point at length, in my view, final orders 7 and 8, set out in Annexure B, are beyond the jurisdiction of this Commission to grant. 201
Is it Mr Cain’s intention to interfere with the disciplinary process?
[234] Counsel for Mr Downing and the City submitted that Mr Cain’s filing of the application and request that the hearing be expedited, three months after first circulating the application to potential parties – appeared not to be based upon there being an imminent risk of bullying. Rather, the motivating force appeared to be the desire to have Mayor Howlett, Councillor Allen and Councillor Smith removed from the group of Elected Members who would consider and vote on the Council’s resolutions regarding the misconduct investigation which was to be considered in the 17 April 2020 SCM. Counsel for Mr Cain correctly noted that the risk does not have to be ‘imminent’.
[235] The Commission has stated that the anti-bullying jurisdiction should not be used as ‘a means of hampering, or even stopping justified disciplinary action, implemented by an employer, as a reasonable management response to an employee’s poor performance or misconduct’. 202 According to Counsel for Mr Downing and the City, based upon the evidence and the submissions of Mr Cain, the application sought to do that which the Commission has expressly deemed unacceptable.
[236] Counsel continued that such intention was revealed in Mr Cain’s submissions in which he argued for interim orders being granted to prevent Mayor Howlett, and Councillors Allen and Smith, from taking part in the discussions and consideration around the misconduct investigation or voting on any resolution arising from the misconduct investigation. Mr Cain had argued that the interim orders were necessary to ‘preserve the applicant’s cause of action’.
[237] As to the purpose of this application, and the events that led up to it being made, it is observed that come 23 and 24 October 2019, Mr Cain had not taken issue with the behaviour of Mayor Howlett, Mr Downing or Councillor Allen. His focus at that time was firmly fixed on Councillor Smith’s behaviour. What followed thereafter were numerous objections by Mr Cain about the procedures and processes adopted by the three Elected Members and Mr Downing to address: (a) his complaint of workplace bullying; and (b) the allegations of misconduct. At the heart of this matter, as evinced by the proposed orders sought, were Mr Cain’s concerns about bias.
[238] The aforementioned objections were characterised as behaviours which were unreasonable, unfair, unlawful, unauthorised, and undue. All of which, concerning the conduct post 23 and 24 October 2019, I have found not to be the case. While a wordsmith might by prolix turn of phrase attempt to dress certain conduct or behaviour (in this case predominately alleged procedural deficits) with the cloak of bullying, it is timely to recall the words of the Vice President in BOQ 203 who said that the following conduct was such ‘which one might expect to find in a course of repeated unreasonable behaviour that constituted workplace bullying’:
…intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging up, isolation, freezing out, ostracism, innuendo, rumour mongering, disrespect, mobbing, mocking, victim-blaming and discrimination.
[239] While the list of behaviours set out in BOQ are not exhaustive they are indicative of the nature of behaviours which one might expect in these types of applications. There may well be occasions where management action is found to be unreasonable or has not been carried out in a reasonable manner. Hence giving rise to findings of behaviour such as bad faith. However, I have found that not to be the case here, and I do not consider it desirous to reflect on Mr Cain’s motives for making the application because they have no bearing on the findings made or conclusion reached in this case.
DEPUTY PRESIDENT
Appearances:
T Caspersz of Counsel for the Applicant
H Millar of Counsel for the City of Cockburn and S Downing
L Howlett, named person
L Smith, named person
K Allen, named person
Hearing details:
2020.
Perth (by video):
April 15, 16.
Printed by authority of the Commonwealth Government Printer
<PR718221>
Annexure A
Interim orders pursuant to ss. 595, 589 and 789FF of the Fair Work Act 2009
Pending determination of the within application, the Fair Work Commission as constituted by … ORDERS THAT:
1. The first respondent (Stuart Downing) shall refrain from taking any further action in relation to or being involved either directly or indirectly in the discussion or consideration or making by any person, including without limitation the Council of the City as constituted under the Local Government Act 1995 (WA) (the Council), of any determination including any resolution by the Council about, concerning or in relation to the bullying complaint and the misconduct allegations;
2. Without limiting the generality of order no. 1, the second, third and fourth respondents (respectively, Mayor Howlett, Councillor Smith and Councillor Allen) shall refrain from taking any further action in relation to or being involved either directly or indirectly in the discussion or consideration or making by any person of any determination including any resolution by the Council about, concerning or in relation to the bullying complaint and the misconduct allegations;
3. Nothing in these orders shall be construed as preventing or inhibiting any action or involvement by any officer of the City of Cockburn other than Stuart Downing and any Elected Member of the Council of the City of Cockburn other than Mayor Howlett, Councillor Smith and Councillor Allen from being involved either directly or indirectly in the discussion or the consideration of or the making by any person of any determination including any resolution by the Council about, concerning or in relation to the bullying complaint and the misconduct allegations;
4. Nothing in these interim orders shall be construed as preventing or inhibiting any inquiry or investigation into the bullying complaint and the misconduct allegations by the City of Cockburn, the Minister appointed under the Local Government Act 1995 (WA), the Department of Local Government, Sport and Cultural Industries established under that Act, the Public Sector Commissioner established under the Public Sector Management Act 1994 (WA) or any other body with jurisdiction in relation to such matters;
5. Unless the Commission orders otherwise, the parties shall keep confidential all documents filed in this application and proceedings and shall use such documents for the purpose of these proceedings only save as otherwise required by law or unless necessary to take professional advice in relation thereto or for the purposes of and relating to any inquiry or investigation referred to in the preceding order no. 4;
6. There be liberty to a party to apply to the Commission on 24 hours’ written notice to the other parties.
For the purpose of these interim orders –
i. ‘The bullying complaint’ means the applicant’s complaint notified in an email dated 23 October 2019 to the Elected Members of the City of Cockburn and a letter dated 24 October 2019 to Mayor Howlett, as amplified in an interview between the applicant and one Dr Sitlington on 5 December 2019;
ii. ‘The misconduct allegations’ means the allegations of misconduct levelled against the applicant first notified to him in a letter dated 6 December 2019 from Stuart Downing.
Annexure B
Orders sought by the applicant pursuant to s. 789FF of the Fair Work Act 2009
The Fair Work Commission as constituted by …
DECLARES AND ORDERS THAT:
1. The applicant was bullied at work by:
a. Stuart Downing;
b. further and alternatively, Mayor Howlett;
c. further and alternatively, Councillor Smith;
d. further and alternatively, Councillor Allen;
2. Within four weeks of the date of the Commission’s order, each of the respondents shall file in the Commission a programme of training to be undertaken by each of them on and in relation to the City of Cockburn’s Elected Member Code of Conduct or similar code of conduct (the Elected Member Code of Conduct Training);
3. Without limiting the generality of order no. 2, each of the respondents shall attend the Elected Member Code of Conduct Training;
4. Within four weeks of the date of the Commission’s order, each of the respondents shall file in the Commission a programme of training to be undertaken by each of them on and in relation to the City of Cockburn’s Bullying Policy for Staff (the Bullying Policy Training);
5. Without limiting the generality of order no. 4, each of the respondents shall attend the Bullying Training;
6. Stuart Downing shall refrain from taking any further action in relation to or being involved either directly or indirectly in discussion or the consideration of or the making by any person, including without limitation the Council, of any determination including any resolution by the Council about, concerning or in relation to the bullying complaint and the allegations of misconduct;
7. Mayor Howlett, Councillor Smith and Councillor Allen shall refrain from taking any further action in relation to or being involved either directly or indirectly in the discussion or the consideration of or the making by any person of any determination including any resolution by the Council about, concerning or in relation to the bullying complaint and the misconduct allegations;
8. Nothing in these orders shall be construed as preventing or inhibiting any action or involvement by any officer of the City of Cockburn other than Stuart Downing and any Elected member of the Council of the City of Cockburn other than Mayor Howlett, Councillor Smith and Councillor Allen being involved either directly or indirectly in the discussion or the consideration of or the making by any person of any determination including any resolution by the Council about, concerning or in relation to the bullying complaint and the misconduct allegations;
9. Nothing in these orders shall be construed as preventing or inhibiting any inquiry or investigation into the bullying complaint and the misconduct allegations by the City of Cockburn, the Minister appointed under the Local Government Act 1995 (WA), the Department of Local Government, Sport and Cultural Industries established under that Act, the Public Sector Commissioner established under the Public Sector Management Act 1994 (WA) or any other body with jurisdiction in relation to such matters.
For the purpose of these orders –
i. ‘The bullying complaint’ means the applicant’s complaint notified in an email dated 23 October 2019 to the Elected Members of the City of Cockburn and a letter dated 24 October 2019 to Mayor Howlett as amplified in an interview between the applicant and one Dr Sitlington on 5 December 2019;
ii. ‘The misconduct allegations’ means the allegations of misconduct levelled against the applicant first notified to him in a letter dated 6 December 2019 from Stuart Downing.
1 Affidavit of Stephen Gerard Cain – 8 April 2020 (First Cain Affidavit) Annexure SC-4.
2 Ibid Annexure SC-2.
Ibid Annexure SC-2.
3 Ibid Annexure SC-6.
4 Witness Statement of Logan Kenneth Howlett (Mayor Howlett Witness Statement) Annexure LKH-9.
5 First Cain Affidavit Annexure SC-9.
6 Ibid Annexure SC-9.
7 Ibid Annexure SC-11.
8 Ibid Annexure SC-10.
9 [2020] FWC 1404 (‘Mayson’).
10 PR718272.
11 Fair Work Act 2009 (Cth), s.590.
12 First Cain Affidavit Annexure SC-4.
13 Ibid [9]-[11].
14 Ibid Annexure SC-18.
15 Ibid Annexure SC-18.
16 Ibid Annexure SC-3.
17 Ibid Annexure SC-3.
18 Ibid [14].
19 Ibid Annexure SC-3.
20 Ibid Annexure SC-2.
21 Ibid Annexure SC-2.
22 Ibid Annexure SC-2.
23 Ibid Annexure SC-2.
24 Ibid Annexure SC-2.
25 Ibid Annexure SC-2.
26 Mayor Howlett Witness Statement [19].
27 Ibid [19].
28 Ibid [19].
29 Ibid [21].
30 First Cain Affidavit Annexure SC-4.
31 Ibid Annexure SC-4.
32 Ibid Annexure SC-4.
33 Ibid Annexure SC-4.
34 Ibid Annexure SC-4.
35 Ibid Annexure SC-4.
36 Mayor Howlett Witness Statement [23].
37 Ibid [23].
38 Ibid [28].
39 Ibid [31].
40 Ibid [32].
41 Ibid [32].
42 Ibid [34].
43 Ibid [35].
44 First Cain Affidavit Annexure SC-2.
45 Ibid Annexure SC-2.
46 Ibid Annexure SC-2.
Ibid Annexure SC-2.
47 Ibid Annexure SC-2.
48 Ibid Annexure SC-2.
49 Ibid [26].
50 Ibid [26].
51 Mayor Howlett Witness Statement [35].
52 Ibid [35].
53 Ibid [41].
54 Ibid [41].
55 Ibid [43].
56 First Cain Affidavit [27].
57 Ibid [27].
58 Ibid [29].
59 Ibid [30].
60 Ibid [31].
61 Ibid Annexure SC-5.
62 Ibid [40].
63 Ibid [40].
64 Ibid [40].
65 Ibid [37].
66 Ibid [37].
67 Ibid Annexure SC-6.
68 Mayor Howlett Witness Statement [49], Annexure LKH-4.
69 Ibid [49], Annexure LKH-5.
70 Ibid Annexure LKH-6.
71 Ibid Annexure LKH-6.
72 Ibid Annexure LKH-6.
73 Ibid Annexure LKH-7A.
74 Ibid Annexure LKH-7B.
75 Ibid Annexure LKH-7B.
76 Ibid Annexure LKH-7B.
77 Ibid Annexure LKH-7B.
78 Ibid Annexure LKH-8.
79 Ibid Annexure LKH-8.
80 First Cain Affidavit Annexure SC-22.
81 Ibid Annexure SC-23.
82 Ibid Annexure SC-23.
83 Ibid [42].
84 Ibid [45].
85 Ibid [44].
86 Ibid [47].
87 Statement of Stuart Nigel Downing (Downing Statement) [36].
88 Mayor Howlett Witness Statement [66].
89 Ibid [79].
90 Downing Statement [38].
91 Ibid [39].
92 Ibid [45].
93 Ibid [49].
94 Ibid [50].
95 Mayor Howlett Witness Statement Annexure LKH-9.
96 Ibid Annexure LKH-9.
97 First Cain Affidavit [38].
98 Ibid [39].
99 Ibid [48].
100 Ibid [48].
101 Ibid [50].
102 Ibid [50].
103 Ibid Annexure SC-10.
104 Ibid Annexure SC-10.
105 Downing Statement [23].
106 Ibid [51].
107 Ibid [52].
108 Ibid [53].
109 Ibid [53].
110 Ibid [55].
111 Ibid [56].
112 Ibid SND-18.
113 Transcript PN1299.
114 Downing Statement [24]; First Cain Affidavit [58], Annexure SC-11.
115 First Cain Affidavit [58].
116 Ibid Annexure SC-12.
117 Ibid Annexure SC-12.
118 Ibid Annexure SC-12.
119 Ibid Annexure SC-12.
120 Ibid Annexure SC-12.
121 Ibid Annexure SC-12.
122 Ibid Annexure SC-12.
123 Ibid Annexure SC-12; Downing Statement [28].
124 Downing Statement SND-19.
125 Ibid SND-19.
126 Ibid SND-19.
127 Ibid SND-21.
128 Ibid SND- 22.
129 First Cain Affidavit [65].
130 Ibid [65].
131 Downing Statement [28].
132 Ibid [29](c), (d) and (e); Annexure SND-10, SND-11 and SND-12.
133 Ibid [29](a) and (b).
134 Ibid [30].
135 Ibid Annexure SND-9.
136 First Cain Affidavit Annexure SC-14.
137 [2017] FWC 4349.
138 [2019] FWCFB 3740.
139 [2008] WASCA 254.
140 First Cain Affidavit [11].
141 Ibid [11].
142 [2019] FWCFB 1475.
143 [2019] FWCFB 1475, [19].
144 [2017] FWC 1886
145 Ibid [25].
146 Ibid [26].
147 Ibid[26].
148 Ibid[26].
149 [2016] FWC 2260.
150 Ibid[5].
151 Quinn v Overland as cited in Australian Manufacturing Workers’ Union v WW Wedderburn Pty Ltd [2016] FWC 2260, [5].
152 Lynette Bayly [2017] FWC 1886, [34].
153 [2016] FWC 5848.
154 [2019] FWCFB 1475, [19].
155 [2020] FWC 1404.
156 Ibid.
157 Ibid.
158 Mac v Bank of Queensland Limited & Others[2015] FWC 774, [79].
159 Ibid [79].
160 Ibid [80].
161 Ibid [96].
162 Ibid.
163 [2019] FWC 5441.
164 Ibid [34] – [35].
165 [2014] FWCFB 9227.
166 [2016] FWC 2308.
167 [2014] FWCFB 9227, [53]; as cited in Purcell, [84].
168 [2019] FWCFB 318.
169 See Construction, Forestry, Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619, [59]; Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union[2014] FWCFB 2042, [26]-[37]
170 Macquarie Dictionary Publishers, Macquarie Dictionary Online (at 20 April 2020) ‘activity’.
171 Ms SB[2014] FWC 2104.
172 Ibid.
173 Ibid.
174 Georges and Telstra Corporation Limited [2009] AATA 731, [23] as cited in Ms SB[2014] FWC 2104, [49].
175 Anti-bullying measure – Schedule 3 Fair Work Amendment Bill 2013 29 House of Representatives, [88].
176 Ibid[103].
177 Ibid [103].
178 See Macquarie Dictionary Publishers, Macquarie Dictionary Online (at 20 April 2020) ‘act’.
179 [2014] FWC 2104, [47]-[53].
180 [2015] FWC 774.
181 Ms SB [2014] FWC 2104.
182 First Cain Affidavit Annexure SC-2.
183 Ibid [26].
184 Downing Statement [33].
185 First Cain Affidavit [27].
186 Ibid [37].
187 Re George[2017] FWC 4349, [30].
188 Ibid [30].
189 Downing Statement [39].
190 Ibid [45].
191 Cain Statement Annexure SC-4, Attachment 16.
192 Witness Statement of Donald Mervyn Green [9].
193 Cain Statement Annexure SC-4.
194 Ibid Annexure SC-4.
195 Ms SB [2014] FWC 2104, [44].
196 Thiess Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252, 78 NSWLR 94, [65]-[67]; Abigroup Contractors Pty Ltd v Workcover Authority of New South Wales (2004) 135 IR 317, [58]; Ms SB [2014] FWC 2104; Purcell v Farah and Mercy Education Ltd T/A St Aloysius College[2016] FWC 2308, [208].
197 Macquarie Dictionary Publishers, Macquarie Dictionary Online (at 20 April 2020) ‘risk’; Purcell v Farah and Mercy Education Ltd T/A St Aloysius College[2016] FWC 2308, [208].
198 Re CG[2014] FWC 6988, [49]-[50]; Purcell v Farah and Mercy Education Ltd T/A St Aloysius College[2016] FWC 2308, [208].
199 Re George [2017] FWC 4349, [23].
200 Witness Statement of Donald Mervyn Green DM6-2
201 Re George, [33]-[40]. See also: Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140.
202 [2019] FWC 5278, [26].
203 [2015] FWC 774, [99].
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