Trent Simon Handley Mulligan

[2018] FWC 6450

[2018] FWC 6450

FAIR WORK COMMISSION

DECISION

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

Trent Simon Handley Mulligan
(AB2018/384)

DEPUTY PRESIDENT MASSON MELBOURNE, 30 OCTOBER 2018

Application for an FWC order to stop bullying – no bullying conduct established – no risk of further bullying established – application dismissed.

Introduction

[1] On 22 June 2018, Mr Trent Mulligan (the Applicant) made an application for an order to stop bullying pursuant to s 789FC of the Fair Work Act 2009 (the Act). The Applicant alleges that he has been bullied at work during his employment with Toll Transport Pty Ltd (Toll) by the dispatch Team Leader, Mr Mandeep Singh (Mr Singh), to whom the Applicant had until recently reported.

[2] The Applicant is employed by Toll at its Mondalez Distribution Centre site in Dandenong South as a forklift driver on afternoon shift. At the time of the alleged bullying incidents, the Applicant was in the dispatch team and reported directly to Mr Singh. The Applicant alleges in his Form F72 application that he had been exposed to bullying by Mr Singh through a series of incidents over a four month period which are summarised as follows:

(i) January – April 2018 – he was forcefully moved away from the computer on which he was working by Mr Singh;

(ii) 13 April 2018 – he was grabbed and shoved by Mr Singh while standing near a printer;

(iii) 18 April 2018 – he was forcefully patted on the back by Mr Singh as a show of authority;

(iv) 19 April 2018 at 3.30pm – he was punched in the back by Mr Singh resulting in a bruise; and

(v) 19 April 2018 between 4.30pm and 5.30pm – he was shoved by Mr Singh towards the exit door at conclusion of a discussion.

[3] Conferences between the parties were conducted before the Commission on 17 and 27 July 2018 but failed to resolve the matter. Directions were subsequently issued for the filing of submissions and materials and the matter was set down for a hearing on 2 October 2018.

[4] At the hearing, the Applicant represented himself and gave sworn evidence. He also called Mr Jeffrey Bryce, a work colleague, to give evidence. Toll was represented at the hearing by Ms Laura Dobson (Senior Manager, Group Employment Relations and Industrial Relations). Toll called two witnesses in the proceedings, Mr Singh and the Team Manager Afternoon Shift, Mr James Boncoeur (Mr Boncoeur).

Legislation

[5] The legislative provisions dealing with applications for orders to stop bullying are contained in Part 6-4B of the Act. Section 789FC provides as follows:

“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.”

[6] Section 789FD of the FW Act defines when a worker is bullied at work as follows:

“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.”

[7] Section 789FF defines in the circumstances in which the Commission may make orders dealing with an individual that has been bullied at work:

“789FF  FWC may make orders to stop bullying

(1) If:

(a) a worker has made an application under section 789FC; and

(b) the FWC is satisfied that:

(i) the worker has been bullied at work by an individual or a group of individuals; and

(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;

then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group

(2) In considering the terms of an order, the FWC must take into account:

(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body—those outcomes; and

(b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes—that procedure; and

(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes—those outcomes; and

(d) any matters that the FWC considers relevant.

Applicant’s Case

Evidence of Applicant

[8] The Applicant states that there were several incidents between January and April 2018 in which his then supervisor, Mr Singh, had brushed the Applicant aside to access a computer on which the Applicant had been working. 1 Specific dates of the alleged incidents were not provided by the Applicant. The Applicant acknowledged that there were no witnesses2 to the alleged incidents and that he had not raised any concern at the time over these incidents, either directly with Mr Singh, or through any other complaint process of which he was aware.3 He did, however, claim to have mentioned the incidents to Mr Bryce on each occasion that they had occurred.4

[9] With respect to the incident of 13 April 2018, the Applicant gave evidence that he was engaged in a discussion with Mr Singh in relation to the completion of a “5S sheet” on that day. The Applicant states that Mr Singh had wanted him to complete the 5S check in the office, to which the Applicant claims that he advised Mr Singh that the 5S sheet had actually been updated for the next week so there was no point filling in the Friday 5S.

[10] The Applicant states that after further discussion in which Mr Singh was insistent that the Applicant complete the 5S sheet, he agreed to complete it and indicated that he was going to print off the sheet first. He stated that he was then standing near to the printer waiting for a colleague, Vivien, who was in front of the Applicant with her back to him, at which point Mr Singh was alleged to have grabbed the Applicant and pushed him towards the 5S board. 5

[11] With respect to the alleged incident on the 13 April 2018, the Applicant stated in response to questioning that Vivien did not witness the incident, although he was sure there were other witnesses but they did not want to come forward. 6 The Applicant indicated that he again did not raise his concerns with Mr Singh but was trying, in his words, to “figure out” a way to sit down and talk with Mr Singh about the issues.7

[12] The Applicant gave further evidence in relation to the alleged incident on 18 April 2018. He states that he was engaged in a discussion with Mr Singh in relation to the Applicant’s request that a casual come up to the office and do a check. Mr Singh, according to the Applicant, was unaware of this and told the individual to leave quickly at which point the Applicant insisted to Mr Singh that he needed the casual to complete the work. After the casual left the office, the Applicant states that Mr Singh then stated to the Applicant “oh yeah, thanks buddy”. The Applicant states that the manner in which Mr Singh spoke to him was “sarcastic and violent” and made him quite angry at which point he resolved to raise his concerns with Mr Singh the following morning. 8

[13] The Applicant states that on 19 April 2018 at approximately 3:30 pm, he was in discussion with Mr Singh outside the dispatch office. Mr Singh gestured towards the Applicant to go into the office, at which point, the Applicant claims to have been “corked” in the back by Mr Singh which shocked him. 9 The Applicant states that he then raised the issue with Mr Boncoeur and was told by Mr Boncoeur that he would arrange a meeting with Mr Singh and the Applicant to discuss. According to the Applicant that meeting did not occur.10

[14] The Applicant states that following the incident on the 19April 2018, he showed Mr Bryce the bruising he had suffered as a consequence of the alleged incident with Mr Singh and also advised the union delegate, Mr Ben Gobias, on 20 April 2018 of the incident. 11 The Applicant acknowledged during cross examination that he had not taken any photos of the alleged bruises, sought treatment or provided any other evidence to the Respondent of the alleged injuries.

[15] The Applicant states that on arriving at work on 20 April 2018, he had intended to show his injuries as part of the investigation that he had expected would occur. He also anticipated that that he would be required as part of that investigation to report to medical. He claimed that the site was busy on the 20April 2018 due to stock take and no action was taken to investigate the incident of the previous day. 12

[16] The Applicant acknowledges that he worked a full shift on 20 April 2018 and did not speak to nor was spoken to by a supervisor or manager in relation to the incident alleged to have occurred on 19 April 2018. The Applicant referred to discussions that he had during the course of the day with both Mr Bryce and Mr Gobias, where Mr Gobias advised them that Mr Boncoeur had stated that the incident was going to be investigated. 13

[17] The Applicant acknowledges that the manner in which he had raised his concerns over the incident of 19 April 2018 was inadequate, but he attributed this to his not knowing the process. 14

[18] The Applicant confirmed that an investigation was subsequently initiated and while he was unhappy with the outcome of the investigation, he was interviewed and given an opportunity to put his version of events. The Applicant claims that not all of the people of interest that he had suggested were interviewed as part of the process. He states that the outcome of the investigation was that there was insufficient evidence to conclude that the incidents had occurred. 15

[19] The Applicant also gave evidence as to a meeting that was conducted on 1 May 2018 between himself, Mr Boncoeur and Mr Singh at the conclusion of which the Applicant shook hands with Mr Singh and both men agreed to be professional and work together from that point. 16 The Applicant further states, however, that he did not agree with conclusion of that meeting and felt pressured to agree to the outcome.17 The Applicant acknowledges that during the course of the meeting on 1 May 2018, Mr Singh did not concede that he had engaged in the conduct on 19 April 2018 as alleged by the Applicant, and that this frustrated him.18

[20] The Applicant confirmed that since the incident in April 2018, he had initially been moved from the dispatch area to the picking area which is approximately 50 metres from the dispatch area, but he had since been moved to the receiving area which is at the other end of the warehouse. 19 The Applicant states that despite “bumping into” Mr Singh since moving to the receiving area, there was no requirement in his role in the receiving area for any operational interaction with Mr Singh.20

Evidence of Mr Bryce

[21] Mr Bryce gave evidence that he had worked for Toll at the Dandenong South site since December 2016, that he was a Health and Safety Representative (HSR) and also second in charge in the receiving department on afternoon shift. He stated that he acted as a support person for the Applicant during the investigation. 21 Mr Bryce also gave evidence under cross examination that he was good friends with the Applicant, shared a house and also carpooled to work each day with him.22

[22] Mr Bryce gave evidence that the Applicant informed him of multiple incidents involving Mr Singh in the months leading up to the incident of 19 April 2018. He states that the reports of those incidents started approximately two to three months prior to the 19 April 2018 incident. Mr Bryce was able to recount the detail of the incidents as reported to him by the Applicant. 23 He acknowledged, however, that he had not witnessed any of the incidents himself24, was not involved in any of the conversations with management with respect to the investigation process and was reliant on the version of events claimed to have been provided to him by the Applicant.

[23] Mr Bryce states in his evidence that on the evening of 19 April 2018 at approximately 10:30 pm, the Applicant approached him about the incident that had occurred in the earlier part of the shift with Mr Singh. Mr Bryce states that the Applicant told him that Mr Singh had “corked” him in the back to which Mr Bryce then asked who he had reported this to. 25 Mr Bryce states that on the way home from work and on arrival at home, he and the Applicant continued to discuss the incident. He states that the Applicant was distressed and in a state of shock at what had happened. Mr Bryce states that the Applicant showed him his back and he observed very clear red marks on his spine which looked like the Applicant had been struck with “a lot of force”.26

[24] Mr Bryce further states that on arrival at work on 20 April 2018, he and the Applicant had intended to raise their concerns over the incident of the previous day with Mr Boncoeur but were unable to speak with him. According to Mr Bryce, they did speak with Mr Gobias, who according to Mr Bryce subsequently spoke with another of the managers and reported back to Mr Bryce that the matter would be addressed. 27 Mr Bryce states that when the investigation was undertaken, he was not interviewed despite his understanding that the Applicant had specifically requested that he be interviewed.

[25] Mr Bryce referred to a further two incidents that he had witnessed which were not the subject of specific allegations raised by the Applicant. These incidents involved displays of anger and aggression by Mr Singh towards and in respect of the Applicant. Mr Bryce states that these incidents had occurred in the months leading up to the 19 April 2018 incident. Mr Bryce was unable to be specific as to the dates on which these incidents occurred. 28

[26] Mr Bryce acknowledged during cross examination that he was a HSR and that he had been trained in the requirements of the role which included the promotion of safety on site and to proactively report safety issues. 29 He denied that his failure to report the alleged conduct of Mr Singh that had been reported to him over a number of months by the Applicant was a failure on his part to fulfil his role as a HSR. He states that he sought to get other persons involved in dealing with the issue as he felt his friendship with the Applicant may have raised a conflict of interest. He further states that while he may have known of the behaviour for some months, he had not considered the incidents to be major and that he had been assured by the Applicant that those issues were under control.30

[27] Mr Bryce acknowledged that his evidence during these proceedings was the first time since the incident occurred on 19 April 2018 that he had provided his version of events. He further states that he had expected to be interviewed by the company during the formal investigation, denied that he had failed in his duties as an HSR and rejected the proposition that he was now simply seeking to “fill in the gaps” in the Applicant’s evidence. 31

Submissions of the Applicant

[28] The Applicant sought to rely on his evidence and that of Mr Bryce which he submitted corroborated his version of events that the alleged incidents had occurred. He went on to submit that while he had been moved into a different area of the warehouse which was geographically and operationally distinct from the dispatch area where Mr Singh worked, the risk that Mr Singh posed to the Applicant could not be discounted. The Applicant referred to the fact that he had been alone with Mr Singh on several occasions including during breaks. He acknowledged, however, that there had been no incidents of bullying by Mr Singh since the Applicant’s transfer to the receiving area.

[29] The orders sought by the Applicant can be summarised as follows:

(i) That he be able to work in a safe workplace where he and other employees are not exposed to the risk of further bullying;

(ii) That Mr Singh be explicitly prevented from bullying the Applicant in the future; and

(iii) That the Applicant be able to return to his former department, i.e. dispatch

Toll Case

Evidence of Mr Singh

[30] Mr Singh states that he is employed as the dispatch Team Leader at Toll’s Mondalez Distribution Centre in Dandenong South. He further states that he is a HSR at the site and has been employed by Toll since September 2013. In his position as Team Leader, Mr Singh states that he is responsible for the dispatch department on the afternoon shift which includes responsibility for a team of four employees who report to him. 32

[31] Mr Singh states that the Applicant was a forklift driver who reported to him in the period August 2017 to May 2018. Mr Singh states that, as the Applicant’s Team Leader, he had day-to-day contact with the Applicant in order to complete required operations at the site. He states that, prior to 19 April 2018, no complaints had been made by the Applicant or anyone else about his conduct or management style in the time that he had worked at the site. 33

[32] Mr Singh states that on 19 April 2018, he was advised by Mr Boncoeur that the Applicant had made an allegation that he had been “corked” in the back by Mr Singh. Mr Singh states that he was surprised and upset at the allegation and denied it. He states that the only significant interaction that he had with the Applicant on that day occurred while he was working on the computer in the dispatch office, at which point the Applicant approached him to discuss an issue. In responding to the Applicant, Mr Singh states that he was very busy and dismissed the Applicant by saying words to the effect of “don’t you worry about that, that is for me to worry about.” Mr Singh denies that he came into any physical contact with the Applicant on that day. 34

[33] Mr Singh states that following his discussion with Mr Boncoeur, there was a very busy period at the site with stocktake, following which he went on annual leave from which he returned on 1 May 2018. On his return from annual leave, he was advised by Mr Boncoeur that the Applicant had made further allegations including that he had grabbed and shoved the Applicant on previous occasions. These allegations were also denied by Mr Singh. Mr Singh subsequently provided a statement for the purpose of the investigation in which he denied all of the allegations raised by the Applicant against him.

[34] Mr Singh states that he attended a meeting with the Applicant and Mr Boncoeur on 1 May 2018. During this meeting, the Applicant read out his allegations including that Mr Singh had “corked” him in the back on 19 April 2018, and further, that he had shoved and grabbed the Applicant on previous occasions between January and April 2013. During the course of the meeting, Mr Singh states that he denied the allegations but expressed that he was sorry if the Applicant felt that anything he had said or done had made the Applicant feel uncomfortable. Mr Singh states that he continued to deny the allegations during the course of that meeting, but at the conclusion of the meeting shook hands with the Applicant and agreed to continue to work with him. 35

[35] Mr Singh further states that in relation to the Applicant’s allegation that he had engaged in forceful patting of his back to show authority, he denied that there had been any forceful contact with the Applicant. He did, however, acknowledge that he sometimes did pat members of his team on the shoulder during toolbox sessions at the start of the shift to recognise performance on previous shifts or achievement of high safety standard results. He states that at no stage did this patting go beyond congratulatory pats on the shoulder. 36

[36] During cross examination, Mr Singh acknowledged that because he and his team members work in a small office, at times it was possible that he may have brushed past the Applicant but firmly denied coming into contact with the Applicant such that he could have sustained the claimed injuries of bruising. 37 Mr Singh further denied ever patting the Applicant on the back or using a sarcastic tone in order to show authority as alleged by the Applicant to have occurred on 18 April 2018.38

[37] During cross-examination, Mr Singh confirmed that prior to the Applicant’s transfer out of the dispatch area; the Applicant was in the process of being trained up to do clerical duties in addition to his normal forklift duties. Mr Singh clarified that there was a requirement for the purposes of leave coverage to have other employees from within the area capable of doing the clerical administration tasks in order to provide support to the clerical staff within the dispatch office. Mr Singh confirmed that training on the clerical tasks in the dispatch area was a good step up for the Applicant. 39

[38] Mr Singh states that since the investigation into the Applicant’s allegations which commenced in early May 2018, the Applicant has been moved from the dispatch team to work in the receiving department. He states that the Applicant no longer reports to him nor does he have any ongoing contact with him. He states that he has not spoken to the Applicant since 2 May 2018 and denies that he has been in the presence of the Applicant without other staff around. 40 Mr Singh was unable to offer any explanation as to why the Applicant would have raised the allegations against him.

Evidence of Mr Boncoeur

[39] Mr Boncoeur states that he is employed as Team Manager on afternoon shift by Toll at its Mondelez Distribution Centre in Dandenong South and has been employed in that role since April 2013. In that position, Mr Boncoeur states that he is responsible for overseeing all operations on the site on the afternoon shift and the team leaders of each of the three operational departments, being receiving, picking and dispatch, report to him.

[40] Mr Boncoeur states that Mr Singh is a team leader in the dispatch department on afternoon shift where the Applicant previously worked as a forklift driver prior to his transfer to the receiving and picking teams which are located in separate parts of the warehouse. Mr Boncoeur confirmed that the warehouse, within which the three departments are located, is of a significant size, that of approximately 400m x 400m 41 and that there are approximately 43 employees on afternoon shift, comprising 27 casual and 16 full-time employees.42 Mr Boncoeur further states that the dispatch and receiving areas are located at opposite ends of the warehouse and that there is no interaction between the dispatch and receiving teams.43

[41] Mr Boncoeur states that he was approached at approximately 4.00 pm on 19 April 2018 by the Applicant claiming to have been “corked” in the back by Mr Singh. He states that the Applicant smiled and laughed during the discussion and did not appear to be distressed. Mr Boncoeur states that he took notes of the Applicant’s allegations and told him that the allegation would be investigated. According to Mr Boncoeur, the Applicant did not take time off or request medical assistance and he worked a full shift on 19 April 2018 and returned and worked a full shift without complaint on the following day, being 20 April 2018. 44

[42] Mr Boncoeur states that following his conversation with the Applicant, he spoke with Mr Singh and advised him that the Applicant had made an allegation against him, specifically that Mr Singh had “corked” the Applicant in the back. Mr Singh’s response, according to Mr Boncoeur, was one of disbelief and he thought that Mr Boncoeur was joking. Mr Boncoeur states that on confirmation that it was a serious complaint, Mr Singh appeared to be upset, was very surprised and denied the allegation. 45

[43] Mr Boncoeur states that at the time of incident on 19 April 2018, the site was preparing for a stocktake resulting in a very high workload, following which, Mr Singh went on a period of annual leave. This prevented conclusion of his investigation until Mr Singh’s return from annual leave on 1 May 2018. According to Mr Boncoeur, he progressed his investigation during the period of Mr Singh’s leave and spoke with two other employees from the dispatch team, both of whom advised that while they did not witness any of the alleged incidents, they were aware of the allegations having been advised by the Applicant. Mr Boncoeur states he also made arrangements for the matter to be investigated independently by Toll Human Resources.

[44] Mr Boncoeur states that on 27 April 2018, he spoke with the Applicant and told him that the allegations were still being investigated but that Mr Singh was on annual leave. The Applicant, according to Mr Boncoeur, then made further allegations against Mr Singh including that he had been grabbed and shoved by Mr Singh previously. The Applicant was provided with a record of discussion form and asked to provide further details about the additional allegations. According to Mr Boncoeur, those additional allegations were not made known to him when the initial complaint was raised by the Applicant on 19 April 2018. 46

[45] Mr Boncoeur confirmed that he arranged a meeting involving himself, Mr Singh and the Applicant to discuss the allegations on 1 May 2018. During the course of that meeting, the Applicant read out the details of the allegations which Mr Singh denied. Mr Boncoeur also states that Mr Singh said words to the effect that he was “sorry if any of my actions have caused any harm but I did not hit you”. At the end of the meeting, Mr Boncoeur states that he asked the Applicant and Mr Singh if they could work together, to which both agreed and shook hands. 47

[46] Mr Boncoeur states that since 2 May 2018, the Applicant has been primarily performing his duties in the picking and receiving teams and has had no operational involvement with Mr Singh. His transfer means that the Applicant does not directly work with or report to Mr Singh. Further, Mr Boncoeur states that the Applicant’s hours of work, rate of pay and duties have not changed as a result of him moving to another department. Mr Boncoeur states that because of the geographical separation of the dispatch team and the receiving and picking teams, there is no reason for the Applicant to come into contact with Mr Singh during the normal course of duties and that the Applicant will not be returning to the dispatch team and will not be required to work with Mr Singh 48(emphasis added).

[47] During his oral evidence, Mr Boncoeur confirmed that Mr Singh and the Applicant take their breaks at different times during their afternoon shift 49 and that he had not personally seen them together during their meal break although he acknowledged that it is a large site and it would be hard for him to see where everybody was at any particular time of the day.50

[48] Mr Boncoeur also confirmed during cross-examination that, following the report of the incident on 19 April 2018 by the Applicant, he commenced an investigation and spoke with Mr Singh 51 and subsequently passed on his initial reports to HR for the purpose of their investigation. Mr Boncoeur further confirmed that he did not ask the Applicant to show his injuries at the time of the report on 19 April 2018 because the Applicant had not mentioned any injury. Further, he denied that the Applicant had used the term “punch” but had used the term “cork”. Mr Boncoeur gave evidence that he sought to clarify the meaning of “cork” with the Applicant during the meeting. The Applicant, in response, demonstrated a corking motion to him.52

Toll Submissions

[49] Toll submitted that the Applicant had failed to produce any “objective, reasonable or conclusive evidence” to support the allegations made against Mr Singh and contrasted that with the evidence adduced from Mr Singh and Mr Boncoeur. Toll also submitted that the failure of the Applicant to raise the allegations regarding the various incidents alleged to have occurred prior to the alleged “corking” incident of 19 April 2018, either at the time of those prior incidents or during the meeting with and Mr Boncoeur on 19 April 2018, should lead to a reasonable inference that those additional allegations made by the Applicant on 27 April 2018 were made to support the requirement that unreasonable conduct must be repeated in order to satisfy the definition in s 789FD(1) of the Act.

[50] Toll submitted that Mr Bryce’s evidence should be given no credit or weight for the following reasons:

(i) He claimed that he had been made progressively aware of the alleged incidents by the Applicant but did not speak with or raise any of the alleged incidents with management, despite being a HSR;

(ii) The evidence provided by Mr Bryce was furnished late in the proceedings and conveniently directed to addressing a number of matters raised in Toll’s material;

(iii) His evidence is either irrelevant or hearsay and should be considered biased and not credible; and

(iv) Importantly, Mr Bryce did not witness any of the incidents alleged to have occurred.

[51] Toll submitted that the Commission could not be satisfied on the material before it that the Applicant had been “bullied at work” by Mr Singh. Consequently, the first element required for the making of an order under s 789FF(1) of the Act had not been met.

[52] Toll submitted that without conceding that the alleged bullying conduct had actually occurred, there was no evidence that there is any risk of further or ongoing conduct directed towards the Applicant. This was due to the transfer of the Applicant to a different department at the opposite end of the warehouse to where Mr Singh works, resulting in both an operational and reporting line change. Consequently, the second element required for the making of an order under s 789FF(1) of the Act, that of a risk of continued bullying, had not been met.

Evidentiary Findings

[53] The Applicant has raised allegations that he was subject to several incidents of bullying by Mr Singh over the period January–April 2018. The allegations were strongly denied by Mr Singh and there is a stark contrast in the evidence of the two with respect to the alleged incidents.

[54] It is not the case that the Applicant and Mr Singh have placed a nuanced or different interpretation on events that may have occurred. Rather, it is the case that the Applicant has claimed particular events occurred whereas Mr Singh flatly denies those alleged incidents occurred. In these circumstances, it is difficult to escape a conclusion that either the Applicant or Mr Singh, or perhaps both, were less than truthful in their evidence.

[55] Resolution of the direct conflict in evidence over the alleged incidents is not assisted by any direct witnesses or contemporaneous evidence from sources other than the Applicant and Mr Singh. While the Applicant points to corroboration of his allegations by Mr Bryce’s evidence, I am not persuaded to place any weight on that evidence for reasons that I will elaborate on.

[56] Mr Bryce is a friend of the Applicant, shares a house with him and also carpools to work each day with him. Critically, Mr Bryce did not witness any of the events that the Applicant alleges occurred, nor was he involved in any meetings or discussions with management regarding the incidents. He relies on the Applicant’s claimed version of events allegedly relayed to him in a series of private discussions during the January – April 2018 period. The timing of his filing of a witness statement is also telling, given that his version of events had not been previously provided and was only provided one day prior to the hearing.

[57] Further, the precision and manner with which Mr Bryce was able to recount in his evidence the alleged incidents reported to him by the Applicant had the character of having been carefully prepared. His explanations of why he had not raised the bruising he claimed to have observed on the Applicant arising from the alleged incident on 18 April 2018, or reported the prior alleged incidents claimed to have been within his knowledge were also unconvincing, particularly given his role as an HSR.

[58] The matters referred to above lead me to conclude that Mr Bryce’s evidence has been crafted to best support the Applicant’s narrative and was simply not credible. For these reasons I give no weight to it. I now turn to my findings on the evidence.

[59] Prior to May 2018 the Applicant was employed in the dispatch area of Toll’s Mondalez Distribution Centre site in Dandenong South and worked on afternoon shift reporting to Mr Singh. There was no suggestion of any issues between the Applicant and Mr Singh prior to the incidents that were alleged to have commenced in January 2018.

[60] I am satisfied that the Applicant raised a complaint with Mr Boncoeur at approximately 4.00 pm on 19 April 2018 that he had been “corked” in the back by Mr Singh. The Applicant claims to have also raised the other alleged incidents with Mr Boncoeur at that same time, although that is denied by Mr Boncoeur. Mr Boncoeur states that the other alleged incidents were not raised until a subsequent conversation with the Applicant on 27 April 2018.

[61] Mr Boncoeur was clear in his evidence that the report he received on 19 April 2018 from the Applicant was confined to the alleged “corking”. I prefer Mr Boncoeur’s evidence over that of the Applicant on this point as it is supported by the evidence of Mr Singh who states that he was advised shortly after by Mr Boncoeur of the Applicant’s allegation that he (Mr Singh) had “corked” the Applicant. There is no evidence that Mr Singh was advised at that point of any other allegations. I am consequently satisfied that the initial report by the Applicant on 19 April 2018 was confined to the alleged “corking” incident.

[62] While the Applicant raised the “corking” allegation on 19 April 2018, an investigation of the allegation was delayed by the conduct of the stocktake that was then underway and also by Mr Singh’s subsequent annual leave from which he returned on 1 May 2018. I am satisfied that while Mr Singh was on annual leave, Mr Boncoeur made some inquiries into the incident by speaking with colleagues of the Applicant and Mr Singh from the dispatch team and he also had a further conversation with the Applicant on 27 April 2018 where the further allegations were raised by the Applicant regarding Mr Singh.

[63] I am satisfied that a meeting of Mr Boncoeur, Mr Singh and the Applicant was conducted on 1 May 2018 during which the Applicant detailed his allegations and which Mr Singh denied. It was also not contested that at the conclusion of the meeting, the Applicant and Mr Singh indicated that they could work together professionally in the wake of the alleged incidents and shook hands.

[64] The Applicant states in his evidence that he felt pressured to agree to work with Mr Singh at the conclusion of the 1 May 2018 meeting. Little turns on this in any case as the Applicant’s complaints were referred to Toll HR for the purpose of an independent investigation. The investigation was subsequently conducted and concluded with an “open finding” made, that is, there was insufficient evidence to confirm the Applicant’s allegations. The Applicant was dissatisfied with the investigation outcome and process and continued to agitate his complaints regarding the investigation process.

[65] I now turn to each of the specific allegations made by the Applicant.

January – April 2018 – Was the Applicant forcefully moved away from the computer on which he was working by Mr Sing?

[66] The Applicant claims to have been brushed aside from the computer on which he was working by Mr Singh on several occasions during the January to April 2018 period. While acknowledging that he and his team members worked in a small office which may sometimes result in brushing past a colleague, Mr Singh specifically denied the allegation of brushing the Applicant aside from a computer.

[67] The Applicant states in his evidence that he was intending to raise his concerns with Mr Singh. However, the lack of details as to when the incidents occurred, the lack of any direct witnesses and the Applicant’s failure to raise the incidents until 27 April 2018, several days after he raised the allegation of “corking” on 19 April 2018, tell against the incidents having occurred or if they did occur they do not appear to have been regarded as particularly serious by the Applicant.

[68] I am not persuaded to the requisite level of satisfaction that the incidents alleged by the Applicant occurred.

13 April 2018 – Was the Applicant grabbed and shoved by Mr Singh while standing near the printer?

[69] The alleged incident occurred on 13 April 2018. According to the Applicant, he was forcefully grabbed and moved by Mr Singh towards the 5S board to complete a task the Applicant and Mr Singh had been discussing. The alleged incident took place in close proximity to another employee named Vivien, but she did not apparently witness the incident and nor did any other employee. Mr Singh again denied the incident.

[70] The Applicant again chose not to raise a complaint directly with Mr Singh or more senior management at the time. The Applicant states in his evidence that he was intending to raise the “grabbing and shoving” incident with Mr Singh on 19 April 2018. That evidence is, however, undermined by the fact that while the Applicant raised the “corking” incident with Mr Boncoeur on 19 April 2018, he did not raise the “grabbing and shoving” incident until 27 April 2018.

[71] The absence of any witnesses, notwithstanding the proximity of the alleged incident to another employee, and the delay in the Applicant reporting it until 27 April 2018 weigh against my finding that it occurred. I am consequently not persuaded to the requisite level of satisfaction that the incident occurred as alleged by the Applicant.

18 April 2018 – Was the Applicant forcefully patted on the back by Mr Singh as a show of authority?

[72] This incident is alleged to have occurred in the context of a discussion between the Applicant and Mr Singh on 18 April 2018, during which Mr Singh was alleged to have been unhappy with the Applicant’s insistence on recalling a casual employee to the dispatch office to complete a task despite that employee having been sent away by Mr Singh. Mr Singh’s evidence was that he had not forcefully patted the Applicant on the back on 18 April 2018 as alleged, although he did acknowledge patting team members on the back at times during tool box meetings as a show of support or congratulations.

[73] Mr Singh did not explicitly rebut that an exchange between himself and the Applicant had occurred in relation to the casual employee; merely that he had not forcefully patted the Applicant on the back. This weighs in favour of a finding that an incident occurred, although the absence of witnesses and the delay in the Applicant raising the incident until 27 April 2018 weigh in favour of a finding that the incident, if it did occur, was not regarded as serious by the Applicant at the time.

[74] On balance, I am satisfied that there was an exchange between the Applicant and Mr Singh on 18 April 2018 in relation to the casual employee, however, I am unable to conclude that the incident that occurred involved “forceful patting” or that Mr Singh’s tone was “sarcastic and violent”.

19 April 2018 at 3.30pm – Was the Applicant punched (corked) in the back by Mr Singh resulting in a bruise?

[75] The Applicant raised the alleged incident of being “corked” in the back by Mr Singh at approximately 3.30 pm on 19 April 2018 during a meeting with Mr Boncoeur. While the allegation was raised promptly relative to the timing of the alleged incident, it was according to Mr Boncoeur, not reported in a state of distress as claimed by the Applicant. The allegation was firmly denied by Mr Singh when it was raised with him shortly after by Mr Boncoeur, there were no witnesses and there was no evidence of injury.

[76] Significantly, the Applicant completed his shifts on both 19 and 20 April 2018 without further discussion with Mr Boncoeur or apparent ill effect. The Applicant explained the lack of vigour with which he pursued the matter on 20 April 2018 as due to his expectation that Toll would investigate the allegation promptly and also due to his unfamiliarity with the required processes. This explanation holds some force, although if he were injured to the extent that he now claims to have been, a more robust approach to pursuing his allegation with management on 20 April 2018 might have been expected. The lack of effective assistance from Mr Bryce who was an HSR and Mr Gobias, the site delegate who the Applicant claimed to have engaged with on 20 April 2018 although he was not called as a witness in these proceedings, is also difficult to reconcile with the seriousness of the allegation.

[77] Notwithstanding the lack of corroborating evidence, there was no explanation able to be provided by Mr Boncoeur or Mr Singh as to what motivation there could have been for the Applicant to fabricate the “corking” allegation. Toll attempted to draw an adverse inference regarding the Applicant’s motives, that being the Applicant’s ambition to achieve the dismissal of Mr Singh and realise a promotion as a consequence. That inference is purely speculative, there is no evidence to support it, and consequently, I am unwilling to draw such an inference as to the Applicant’s motives.

[78] As regards Mr Boncoeur’s response to the allegation, he does not appear to have acted with great urgency. Beyond raising the allegation with Mr Singh on the afternoon of 19 April 2018, it would appear that his focus and that of management at the time was on the stocktake and that little more was done on his part in the period prior to Mr Singh’s return from annual leave on 1 May 2018. Mr Boncoeur then arranged a meeting between himself, the Applicant and Mr Singh on 1 May 2018. Of some significance is that in that meeting, Mr Singh, while denying the specific allegations raised by the Applicant, offered an apology of sorts to the Applicant. Such an apology albeit without concession, does not square easily with Mr Singh’s continued denial of all of the allegations.

[79] While there is a lack of evidence to support the Applicant’s allegations, there is a troubling absence of any plausible explanation for why the Applicant would fabricate such an allegation. Furthermore, Mr Singh’s proffered apology on 1 May 2018, albeit without conceding the alleged conduct, does not sit comfortably with his continued flat denials. Nevertheless, having weighed the competing positions, I am unable to reach the required level of satisfaction that the alleged incident occurred as claimed by the Applicant.

19 April 2018 between 4.30pm and 5.30pm – Was the Applicant shoved by Mr Singh towards the exit door at conclusion of a discussion?

[80] No further evidence was adduced by the Applicant beyond the summary of the alleged incident that was contained within his witness statement. Mr Singh denied the incident occurred. Given the absence of corroborating evidence or witnesses and the failure of the Applicant to report the incident at the time of his reporting the “corking” incident, I am not persuaded that the incident occurred as alleged by the Applicant.

Transfer of Applicant out of dispatch team

[81] I finally turn to the working arrangements that have been put in place by Toll since 2 May 2018.

[82] There is no contest and I accept that as a consequence of the alleged incidents, Toll transferred the Applicant out of the dispatch area so that he was no longer required to report to or work with Mr Singh. This appears to have been a pragmatic step taken by Toll to mitigate the risk of incidents or discord within the dispatch team. Since that transfer, the Applicant initially worked in the picking area and has more recently been deployed in the receiving team. The geographical separation between the dispatch and the receiving areas is, according to Mr Boncoeur, several hundred metres. This estimate was not disputed by the Applicant.

[83] I am satisfied based on the evidence of the Applicant, Mr Singh and Mr Boncoeur that there is no requirement for the Applicant or Mr Singh to have any operational interaction given the geographical and operational separation of the two since 2 May 2018. Mr Boncoeur has also stated in his evidence that the Applicant will not be required to work with Mr Singh in the future.

[84] The Applicant states that there is some risk that he may “bump into” Mr Singh in the future and claims to have done so on a number of occasions since 2 May 2018 in the lunchroom and corridor. Mr Singh denies that he has been in the presence of the Applicant without other staff also being present since 2 May 2018. The Applicant concedes, however, that there have been no further incidents between Mr Singh and himself since his transfer to a different department. I am consequently satisfied on the evidence that there is no reason for the Applicant and Mr Singh to have any interactions with each other apart from casual contact unrelated to the performance of their operational duties.

[85] The Applicant complains that he has been the victim of the alleged incidents by having been transferred out of the dispatch team. There is some force to this complaint in the circumstances, although the evidence also indicates that he has not suffered a loss of pay or entitlements as a consequence of his transfer. The Applicant has now been denied the opportunity to undertake training in the dispatch clerical administration tasks by reason of his transfer, however, I note that completion of that training and undertaking those additional tasks would not have resulted in an increase in remuneration.

Consideration

[86] It is evident from the statutory provisions that the relevant remedy in respect of a bullying application is an order which the Commission considers appropriate ‘to prevent the worker from being bullied at work by the individual or group’.⁵³ If other jurisdictional prerequisites have been met, the discretion to make an order is only exercisable if, relevantly, the Commission is satisfied that:

•  the worker has been bullied at work by an individual or a group of individuals; and

•  there is a risk that the worker will continue to be bullied at work by the individual or group.⁵⁴

[87] It is clear from the terms of s 789FF of the Act that, if I am satisfied that the Applicant has been bullied at work by Mr Singh, the next step is for me to then determine whether there is a risk that the Applicant will continue to be bullied at work. In assessing that risk, I must be satisfied that the risk that the Applicant will continue to be bullied at work by an individual or group of individuals although not imminent, must be real, and not merely a conceptual or hypothetical risk.

Has the Applicant been “bullied at work”?

[88] I have made findings in relation to each of the incidents that are alleged by the Applicant to have occurred. I have not been persuaded on the evidence that the incidents have occurred as alleged. As a consequence, it has not been necessary for me to assess whether those incidents constituted repeated unreasonable behaviour that presented a risk to the health and safety of the Applicant. The establishment of the first limb of s 789FF of the Act necessary for the purpose of making an order is therefore not met.

Is there a risk of continued bullying?

[89] Had I been satisfied that the Applicant had been “bullied at work”; it would be necessary for me to then establish that there is a risk of continued bullying. Having regard to my findings as to the transfer of the Applicant I am satisfied that there is no requirement or reasonable likelihood of further operational interaction between the Applicant and Mr Singh. In these circumstances, the risk of further bullying, if bullying conduct had been established, is conceptual and hypothetical only. Consequently, the establishment of the second limb of s 789FF of the Act is also unable to be met.

Conclusion

[90] The Applicant has failed to establish the required criteria under s 789FF(1) of the Act to support a conclusion that he has been “bullied at work” in accordance with the definition provided at s 789FD of the Act. Furthermore, he has not established that there is risk of further bullying conduct occurring.

[91] The Applicant’s application for an order under s789FC of the Act is consequently dismissed. An order to giving effect to this will be issued in conjunction with this decision.

DEPUTY PRESIDENT

Appearances:

T Mulligan on his own behalf.

L Dobson for the Respondent.

Hearing details:

2018.

Melbourne.

October 2.

Printed by authority of the Commonwealth Government Printer

<PR701543>

 1   Transcript at PN48 to 50.

 2   Transcript at PN66.

 3   Transcript at PN51.

 4   Transcript at PN54.

 5   Transcript at PN63.

 6   Transcript at PN65-67.

 7   Transcript at PN69.

 8   Transcript at PN73.

 9   Transcript at PN77.

 10   Exhibit A2, “Workplace Bullying and Assault, Mandeep Incident and Proceedings, A Chronological Summary of Events Prepared by Applicant”.

 11   Ibid at paragraph 6.

 12   Ttranscript at PN165.

 13   Transcript at PN174.

 14   Transcript at PN179.

 15   Transcript at PN88-92.

 16   Transcript at PN188.

 17   Transcript at PN190-PN 191.

 18   Transcript at PN192.

 19   Transcript at PN115 -2119.

 20   Transcript at PN132-133.

 21   Exhibit A1, Witness statement of Mr Jeffrey Bryce, dated 30 September 2018, at paragraphs 1- 3.

 22   Transcript at PN240-242.

 23   Transcript at PN 223-225.

 24   Transcript at PN265.

 25   Exhibit A1 at paragraphs 4-5.

 26   Ibid at paragraph 6.

 27   Ibid at paragraph 12.

 28   Ibid at paragraph 19-20.

 29   Transcript at PN248.

 30   Transcript at PN248-253.

 31   Transcript at PN276.

 32   Exhibit R1, Witness statement of Mr Mandeep Singh, dated 5 September 2018, at paragraphs 1 to 3.

 33   Ibid at paragraphs 4 and 5.

 34   Ibid at paragraphs 6 and 7.

 35   Ibid at paragraphs 8-11.

 36   Ibid at paragraph 14.

 37   Transcript at PN319 to 321, PN331-336.

 38   Transcript at PN343.

 39   Transcript at PN355, PN 363.

 40   Exhibit R1 at paragraph 15, Transcript at PN369-370.

 41   Transcript at PN399.

 42   Transcript at PN401.

 43   Transcript PN405-406.

 44   Exhibit R2, Witness Statement of Mr James Boncoeur, dated 5 September 2018, at paragraphs 5 to 8.

 45   Ibid at paragraph 9.

 46   Ibid at paragraph 13.

 47   Ibid at paragraph 14.

 48   Ibid at paragraph 23 to 24.

 49   Transcript at PN412.

 50   Transcript at PN412-413.

 51   Transcript at PN425.

 52   Transcript at PN 425 to 432.

53 S 789FF(1) Fair Work Act 2009.

54 S 789FF(1)(b) Fair Work Act 2009.