[2020] FWC 5494

FAIR WORK COMMISSION

DECISION

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

Vivien Pham
(AB2019/710)

DEPUTY PRESIDENT BULL

SYDNEY, 9 DECEMBER 2020

Application for an FWC order to stop bullying.

[1] Mrs Vivien Pham (Mrs Pham) has made an application under s.789FC of the Fair Work Act 2009 (the Act) for an order to stop bullying (the application). The application listed the Property Council of Australia Limited (the Property Council) as the employer and named Ms Jo Gullick, Chief Financial Officer, as the individual engaged in the alleged bullying behaviour. 1

[2] Mrs Pham is employed by the Property Council as a Financial Accountant. In respect of the application, Mrs Pham alleges that Ms Gullick has engaging in bullying behaviour against her which has included:

• Substantially increasing her workload

• Preventing her from caring for her elderly parent

• Unreasonably placing her on a performance improvement plan (PIP)

• Subjecting her to intimidation, verbal abuse and humiliation 2

[3] Mrs Pham has been absent from work since 18 June 2019 citing her bullying allegations as causing her to be unfit to work. Mrs Pham has made a worker’s compensation claim and the last WorkCover certificate of capacity in evidence before the Commission was completed by Dr Dang Vu Tran from the Medlife Family Medical Centre, which certifies Mrs Pham as having no current work capacity for any employment until 26 October 2020. 3 Mrs Pham commenced workers compensation for stress-related illnesses on 18 June 2019. 4

[4] A response was received from the Property Council’s solicitor refuting the allegations. 5

[5] After multiple unsuccessful attempts at resolving the matter, the application was listed for hearing. 6 The parties were granted leave to be legally represented on the basis that their representation would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.7

[6] In resolution of her application Mrs Pham sought the following outcomes: 8

1. That Mrs Pham and Ms Gullick are not to sit together in the same work pod at the offices of the Property Council of Australia Limited (PCA)

2. That PCA take such steps as necessary to relocate Ms Gullick, to ensure she does not sit in the same work pod as Mrs Pham, Preveena Sathyanparamatheva and Silvi Mulyono, at the offices of PCA

3. That Ms Gullick be polite and courteous in her verbal and written communications with Mrs Pham in the workplace

4. That Ms Gullick shall have no meetings with Mrs Pham alone

5. In the event of Mrs Pham and Ms Gullick being required to participate in any one on one meeting, Mrs Pham may at her discretion nominate a support person who shall be permitted to attend such meetings

6. That Mrs Pham is not required as part of her duties to undertake any tasks associated with payroll processing, checking or clearing

7. That Mrs Pham return to employment with PCA, on a staged return as follows:

(a) 3 hours per day, 2 days per week, for the first month

(b) 4 hours per day, 2 days per week, for the second month

(d) Mrs Pham’s capacity return to full time hours to be assessed by Ms Josie Wakim, psychologist, at the conclusion of three months

(e) Following consultation with Ms Wakim, Mrs Pham and PCA are to discuss Mrs Pham’s work capacity with a view to determining whether it is appropriate for her to return to full time work.

8. That upon Mrs Pham returning to full time work, she be permitted to work from home two days each week 9

Background

[7] On 30 November 2015, Mrs Pham commenced employment with the Property Council as a Financial Accountant in the finance team led by Ms Gullick. Ms Gullick was employed as the Chief Financial Officer and Company Secretary.

[8] In mid-2017, Mrs Pham fell pregnant with her third child and took periods of personal leave and other leave during her pregnancy from 5 September 2017 to 27 October 2017.

[9] In February 2018, Mrs Pham had a meeting with Ms Gullick, where she was informed that she would need to support the payroll function after she returned from parental leave. 10

[10] On 3 March 2018, Mrs Pham commenced a period of parental leave, returning to work on 21 August 2018.

[11] Prior to the third pregnancy in 2017, there had been no allegations of workplace bullying.

[12] After returning to work, in August 2018 Mrs Pham alleges that Ms Gullick: 11

• gave her additional work tasks and payroll responsibilities without her consent or consultation;

• prevented her from caring for her elderly parent;

• implemented an inappropriate, unreasonable and unwarranted performance improvement plan (PIP);

• verbally abused, shouted at and mocked her; and

• humiliated her by blaming her for the mistakes of others in front of other staff members.

[13] In May and June 2019, Mrs Pham and Ms Gullick had four meetings, during which Mrs Pham raised issues with her workload, and Ms Gullick raised issues around performance and errors that were being made by Mrs Pham.

[14] At the second of these meetings on 7 June 2019, Mrs Pham was informed that she would be placed on a PIP.

[15] On 14 June 2019, at the fourth meeting, Mrs Pham was provided with the PIP.

[16] On 18 June 2019, Mrs Pham commenced leave on the ground of ill health and was diagnosed by her general practitioner as suffering from an adjustment disorder with mixed anxiety and depressed mood. As noted above, Mrs Pham has not returned to work since.

[17] On 19 June and 12 July 2019, Mrs Pham attended sessions with Ms Josie Wakim, a Psychologist.

[18] In October 2019, Mrs Pham attended a consultation with Dr Ben Teoh, a Psychiatrist.

[19] On 5 December 2019, Mrs Pham attended a consultation with Dr Katie Dimarco, a Consultant Psychiatrist and Psychotherapist.

Applicant’s submissions and evidence

Evidence of Mrs Pham

[20] Mrs Pham provided a number of written statements and was subject to cross-examination. Mrs Pham attached a written statement to her initial bullying application of 11 December 2019, and further written statements of 18 March 2020 and 29 June 2020 which were also tendered in evidence. During cross-examination Mrs Pham was able to answer questions in a robust and confident manner.

[21] Mrs Pham did not call any other witnesses in support of her application.

[22] Mrs Pham stated that she commenced as a Financial Accountant in November 2015 on a full-time basis. Mrs Pham was provided with a written position description in relation to her role as the Financial Accountant and while one of the duties was listed as full payroll responsibilities, Mrs Pham states that while required to check payroll she was not required to undertake any other payroll tasks. 12 Mrs Pham stated that she was only required to do the final payroll check and approval after the Payroll Manager had prepared and reviewed payroll material and only when the Chief Financial Officer and human resources were both unavailable.13

[23] Mrs Pham stated that on 23 February 2018 she had a performance review meeting with Ms Gullick where Ms Gullick discussed proposed changes to her responsibilities as Financial Accountant and that on return from maternity leave, she would be required to help with payroll tasks as her backup and perform to her full capacity. Mrs Pham states she did not agree to these changes and understood that her responsibilities would be further discussed upon return from maternity leave. 14 Mrs Pham states that did not say anything in response as she wanted the meeting to finish so she could proceed on her maternity leave.15

[24] On 28 February 2018, Ms Gullick emailed Mrs Pham a new position description which she did not agree to or make any comment about. This was based on her understanding that it would be discussed on her return from maternity leave. 16

[25] Mrs Pham states that while her initial job description included ‘review of payroll’ this was never a task that she performed prior to Ms Gullick telling her that she had to do it. 17 This was because when Mrs Pham first commenced at the Property Council the then Payroll Manager prepared the final review for sign off by the CFO and/or HR.18

[26] On 3 March 2018, Mrs Pham proceeded on maternity leave. Mrs Pham’s evidence was that on return from maternity leave in August 2018 she was given extra responsibilities, in particular, payroll tasks and providing support to Ms Gullick. 19 Mrs Pham stated that Ms Gullick had asked her to help with payroll as a backup when Ms Gullick was unavailable.20 Mrs Pham stated that Ms Gullick had promised to relieve her of some other tasks which did not eventuate, leading to the extra workload.21

[27] In September 2018, Mrs Pham had a meeting with Ms Gullick to discuss her Performance Development Plan when she was advised of the additional payroll tasks she was to undertake. 22 Mrs Pham was of the view that Ms Gullick did not want to be involved in payroll management and pushed those tasks onto herself despite being told she was only to provide backup support.23

[28] Mrs Pham stated that there was an expectation that she would drop everything and complete tasks provided to her by Ms Gullick. This put her in conflict with having to manage her time and she was never asked about her availability to perform these tasks. 24 Mrs Pham stated that Ms Gullick spent around five hours in October 2018 with her in relation to payroll processing training, no other training was provided.25

[29] On 19 March 2019, Mrs Pham dropped her mother off at a doctor’s appointment and wanted to wait for her so she could take her home. She had previously advised Ms Gullick that she would be working from home. However, Ms Gullick sent her multiple emails that day and kept calling her mobile. On this basis, Mrs Pham could not collect her mother from the doctor’s appointment and her mother had to utilise public transport. 26

[30] On 27 May 2019, Mrs Pham had a one-on-one meeting with Ms Gullick and told her that she had too much work and was unable to cope. She expressed concern about the quality of her work which she did not consider to be up to the standard that she desired. At this meeting, Ms Gullick stated that Mrs Pham was causing too many errors and was not collaborating with the team. 27

[31] At this meeting, Mrs Pham asked Ms Gullick to clarify what the expectations were for payroll as she understood that she was only supposed to assist/act as a backup. Ms Gullick explicitly stated that payroll was in her job description. Mrs Pham stated that she was hired as the Financial Accountant and was shocked when told by Ms Gullick that payroll was in her job description. 28

[32] At this meeting, Mrs Pham also raised with Ms Gullick the need to work from home more regularly to support her parents and to take her children to school for drop-off and pickup. She asked to work from home for two days a week which was refused and one day a week offered. 29

[33] On 7 June 2019, a further meeting with Ms Gullick was held which had been diarised as a one-on-one meeting and she was surprised to see the attendance of Ms Kathryn Pike, the Senior Adviser People and Culture in attendance as she was not told that she would be present. 30

[34] Mrs Pham states that the meeting was heated and voices were raised as she attempted to explain to Ms Gullick that she was overloaded with administrative work and duties outside of her job description. Ms Gullick told Mrs Pham not to raise her voice but Ms Gullick was doing the same. 31 At this meeting, Ms Gullick pointed out that Mrs Pham had made certain errors which Mrs Pham acknowledged, but stated that in her view they were only minor and occurred due to her excessive workload and not having time to check her work. The meeting ended with Mrs Pham leaving in tears as throughout the meeting Ms Gullick was blaming everything on Mrs Pham and Ms Gullick stated that she was to be placed on a PIP as she was withdrawn and didn’t communicate to the team. Mrs Pham was of the view that Mr Gullick was using the PIP as an attempt to make her think that she was at fault.32

[35] When Mrs Pham received the PIP on 14 June 2019 she was also shocked that it accused her of poor performance and that she would face disciplinary action if she did not improve her performance by 31 August 2019. This was not Mrs Pham’s understanding of the purpose of a PIP. 33 At a meeting on 14 June 2019, Ms Gullick read through the PIP which Mrs Pham felt was a series of accusations. During this meeting Ms Gullick stated that in respect to communication, Mrs Pham was required to speak to the Commercial team in person in addition to sending emails. Mrs Pham stated she found it unnecessary to email and speak to the Commercial team about same event.34

[36] Mrs Pham stated that she was not initially offered the opportunity to take the PIP home to read and that at the end of the meeting was asked by Ms Pike to sign it, which she refused to do as she did not believe it was true in all aspects. 35

[37] Mrs Pham also referred to an incident on 7 May 2019, where in front of the team, Ms Gullick had stated that because of an incorrect term deposit forecast of Mrs Pham’s it had caused cash flow difficulties and employees were unable to receive their superannuation. Mrs Pham stated that after checking she realised that it was not her error as the employer had sufficient cash to pay superannuation. 36

[38] Mrs Pham’s evidence was that as a result of her increasing responsibilities she was not able to complete her usual duties in her normal working hours of 8:00 am to 4:00 pm. 37 Mrs Pham’s evidence was that Ms Gullick would regularly use the terms ‘ASAP’ and ‘immediately’ when sending tasks to her and there was always a sense of urgency and pressure to take immediate action when she received emails from Ms Gullick.38

[39] Mrs Pham referred to an occasion when she was about to proceed on maternity leave and a farewell party had been organised where Ms Gullick mocked her in front of other staff for ordering a sausage at a café as opposed to cake as she had a sugar and carb intolerance. Since returning from maternity leave Ms Gullick has reminded everyone of that occasion when visiting the same café. This made Mrs Pham feel belittled and not welcome as part of the team. 39

[40] In November 2017, Mrs Pham states that Ms Gullick advised that due to cash flow forecast errors (that Ms Gullick had made), the Property Council was unable to meet payment demands by various Property Council divisions. After finding out that the team had communicated this to some of the Divisions Ms Gullick verbally abused a colleague and herself in front of other work colleagues.

[41] In August 2018, Mrs Pham was asked to attend a meeting to go through the Study Tour budget, which was not part of her responsibilities, during which she identified and asked why GST was being charged on international services provided outside Australia. Ms Gullick overheard the conversation and called out in front of everyone that as services were being provided that GST should be charged. Given that she is an accountant, Mrs Pham found this belittling and embarrassing. 40

[42] Mrs Pham stated that she felt that Ms Gullick would regularly issue directions in a disrespectful manner and ‘bark’ orders at her while she was sitting in the office, and as a result she did not wish to be seated next Ms Gullick. Mrs Pham stated that her preference was for Ms Gullick to work in a different location away from her and that she did not wish to have any meetings with Ms Gullick alone as she felt this would cause her great stress and anxiety. Mrs Pham stated she wished to be able to bring a support person with her if she had any one-on-one meetings with Ms Gullick.

[43] Mrs Pham also stated she wanted to be able to work from home two days a week, which would limit her face-to-face contact with persons whom she considered were bullying her. 41

[44] Mrs Pham stated that she was seeking an order not to be required to undertake any payroll tasks, or at the very least, it be limited to no more than three hours per month as this was the time frame that Ms Gullick stated it took. If it took any longer Mrs Pham requested that the work be completed by someone else. 42

[45] Mrs Pham stated that with Ms Gullick now overseeing her previous two direct reports this was an example of bullying as it is an unnecessary and unwarranted interference in her workplace responsibilities. 43

[46] Mrs Pham stated that she wished to return to work, but given her current mental state it would need to be a gradual return. 44

Submissions

[47] Mrs Pham’s written submissions again set out her allegations. 45 Mrs Pham submitted that Ms Gullick engaged in bullying behaviour, in that she has:

a. changed Mrs Pham’s working arrangements by adding new tasks to her role which were not agreed and which have substantially increased her work load, creating pressure and causing Mrs Pham to work excessive hours; and

b. bullied and intimidated Mrs Pham by:

i. preventing Mrs Pham from caring for an elderly parent;

ii. implementing an inappropriate and unwarranted performance improvement plan (PIP); and

iii. verbally abusing, shouting at, mocking and humiliating Mrs Pham in front of her colleagues. 46

[48] Mrs Pham submitted that as a result of Ms Gullick’s behaviour, she has developed psychological disorders, which resulted in ceasing work on 18 June 2019 and commencing a period of workers compensation leave. Mrs Pham has not yet returned to work and remains unfit to do so. 47

[49] Mrs Pham submitted that as a result of Ms Gullick requiring her to manage payroll after returning from parental leave there was a substantial increase in her workload resulting in stress, excessive work hours and difficulties completing her own work tasks. 48

[50] It was further submitted that Mrs Pham was unreasonably required to carry out administrative tasks that were outside her job description, which placed her under additional pressure. 49

[51] It was submitted that Ms Gullick engaged in aggressive and intimidating conduct toward Mrs Pham, which included:

i. Preventing Mrs Pham from caring for her mother by relentlessly emailing and calling Mrs Pham on a day that she was attending to such care obligations; and

ii. Responding unreasonably when Mrs Pham raised her concerns with Ms Gullick in meetings which took place on 27 May 2019 and 7 June 2019, including implementing an unreasonable and unwarranted PIP. 50

[52] It was submitted that Ms Gullick also humiliated and mocked her in front of other staff members. 51

[53] On 22 June 2020, Mrs Pham filed further submissions reiterating the bullying allegations, and disputing the respondents’ characterisation of incidents as set out in the statement of Ms Gullick. These submissions also reject the reasonableness of the PIP, stating that many of the performance ‘issues’ raised were embellished by Ms Gullick. 52

[54] Mrs Pham also relied on the tendered reports of Ms Josie Wakim, a Psychologist, and Dr Katie Dimarco, a Consultant Psychiatrist. The reports of both Ms Wakim and Dr Dimarco detailed Mrs Pham’s psychological disorders, and concluded that these were caused by Mrs Pham’s ‘reported’ work-related issues and stressors. 53

[55] In her report, Dr Dimarco under the heading Summary and Opinion states:

“Mrs Pham is a 41-year-old full-time accountant employed with the Property Council of Australia since 2015, who ceased work on 17 June 2019 in the context of a reported history of escalation of unreasonable work demands, lack of support and excessive criticism from her manager. She developed increasing psychological distress and impacted sleep, anxiety, rumination and irritability to the point of experiencing suicidal thoughts when a performance management plan was discussed in June 2019 and she ceased work after consulting with her General Practitioner.

…

My opinion from assessing Mrs Pham is that she meets DSM-5 diagnostic criteria for an episode of Major Depression in the context of work-related stressors.” 54

[56] It was submitted that although Mrs Pham is currently unfit to return to work due to her psychological condition arising from work stress, 55 she has expressed an intention to return to work when she is fit to do so.56

[57] Mrs Pham stated that although there is competing evidence between herself and the respondents, the Commission should prefer her evidence. 57

[58] It was submitted that the PIP was unreasonable and unjustifiable, and that the incidents stated to amount to ‘examples of non-performance’ were either trivial or seeking to find fault where no fault was attributable to Mrs Pham. 58

[59] In response to claims that Mrs Pham never made a complaint about being the victim of bullying, it was submitted that it is human nature for a victim not to confront or discuss the bullying conduct with the bully. 59

[60] Finally, it was submitted that Mrs Pham has been the victim of workplace bullying, and that there is a clear risk that she will continue to be bullied. The Commission has broad powers and may make orders it considers appropriate to prevent a worker from being bullied, including making orders in respect of relocation within an office space, removing payroll tasks from Mrs Pham’s responsibilities, and making orders that Ms Gullick communicate in a professional and respectful manner with Mrs Pham. 60

Submissions and evidence of the respondents

[61] The Property Council relied on evidence from three witnesses:

• Ms Kathryn Anne Pike – Recruitment and Employee Experience Manager, formerly Senior People and Culture Adviser 61

• Ms Joanne Gullick – Chief Financial Officer and Company Secretary 62

• Ms Silvi Mulyono – Accounts Payable Officer 63

Evidence of Ms Pike

[62] Ms Pike, the Recruitment and Employee Experience Manager, provided a witness statement and a supplementary statement and was subject to cross-examination. Ms Pike’s evidence provided detail on the placement of an employee on a PIP, and her role in this process. Ms Pike stated that from April 2019, she had been involved in preparing and implementing performance improvement plans and did not regard the placement of an employee on a PIP as a form of disciplinary action or a step that would necessarily result in termination of employment. Ms Pike’s evidence was that the placement of an employee on a PIP was a means to support an employee to achieve the expected standard of performance. 64

[63] Ms Pike stated that on 31 May 2019, Ms Gullick approached her in the Sydney office saying words the effect of:

“I’ve got some concerns about Vivian’s performance. She isn’t meeting the expectations of the role, particularly given its seniority and importance within the team. I’ve already spoken to her about these issues.” 65

[64] While not providing Ms Pike with many details of her concerns, Ms Gullick did state to her that when Mrs Pham was in team meetings she does not participate when she is asked direct questions and does not provide information when she is asked. 66

[65] On 5 June 2019, Ms Pike received an email from Ms Gullick asking for help in respect to a response she had received from Mrs Pham regarding what she does in a typical week and month and what things are causing the work overload she was complaining about. 67 Ms Pike also spoke to Ms Gullick late on 5 June 2019, where Ms Gullick stated that Mrs Pham had sent her a spreadsheet which she had not asked for and Ms Pike responded that she was concerned that Mrs Pham had stated it took her 12.5 hours to complete the spreadsheet.

[66] Ms Gullick explained to Ms Pike that she had ongoing concerns about Mrs Pham’s performance and wanted to have a discussion about her workload and responsibilities to figure out what could be done to support her to improve her performance. As a result, Ms Pike volunteered to review Ms Gullick’s points for a meeting with Mrs Pham. Ms Pike also agreed to attend this meeting at Ms Gullick’s request. 68

[67] Ms Pike stated that she believed Ms Gullick had genuine concerns over the performance of Mrs Pham and that she was seeking her guidance.

[68] Ms Pike provided her account of what occurred in communications between Mrs Pham and Ms Gullick in meetings on 7, 13 and 14 June 2019.

[69] Ms Pike’s evidence supported the position that Ms Gullick did not engage in any aggressive, rude or disrespectful behaviour towards Mrs Pham, 69 and that Mrs Pham was aware of her performance issues.70

[70] During the meeting on 7 June, Ms Pike formed the view that Mrs Pham was not directly responding to Ms Gullick’s questions and stated to Mrs Pham that the meeting was to talk about her current workload so that they could come to some solutions about how to address the work performance concerns of Ms Gullick. 71

[71] Ms Pike stated that Ms Gullick and Mrs Pham discussed Mrs Pham’s regular tasks and how long those tasks took. During this meeting, Ms Pike accepted that both Mrs Pham and Ms Gullick raised their voices, 72 although Ms Pike also stated that during the meeting neither Mrs Pham or Ms Gullick raised their voices and both spoke in a normal tone while preparing the table of Mrs Pham’s regular tasks and the time spent on these tasks.73

[72] Ms Pike stated that it may be necessary to draft a PIP, the purpose of which was to provide information to Mrs Pham so she could feel that she was achieving and performing in her role. Mrs Pham expressed concern that she had never been put on a PIP previously and that her concern was her workload. 74 As Mrs Pham became upset on hearing that she may be placed on a PIP, Ms Pike suggested she take a break from the meeting, which Mrs Pham declined. Ms Pike stated to Mrs Pham that the performance management process was not designed to punish her but to help us succeed in her role. Ms Pike also reminded Mrs Pham of the ability to use the Access EAP service which provides anonymous and confidential employee assistance.

[73] Ms Pike stated that she worked with Ms Gullick to prepare a PIP for Mrs Pham and was mindful that Mrs Pham had acknowledged in the 7 June 2019 meeting that her performance did not meet her own standards. Ms Pike was of the view that the PIP would identify performance concerns and provide a framework for Ms Gullick, Mrs Pham and herself to monitor the progress of Mrs Pham in improving her performance. 75

[74] During the meeting held on 13 June 2019 with Mrs Pham, Ms Gullick and herself, Mrs Pham was again told that the PIP was to support and help her recognise when she is achieving in her role. During this meeting, the removal of five work tasks on a temporary basis to help with Mrs Pham focusing on the PIP was discussed. Ms Pike stated that the tone of the meeting was calm and respectful.

[75] Ms Pike stated that Ms Gullick sent her the final version of the PIP on the morning of 14 June 2019 and later that day she met with Mrs Pham and Ms Gullick at which Ms Pike did most of the talking and used the draft PIP as the structure for the discussion. Ms Pike states she went through the PIP on a line by line basis with Mrs Pham and Ms Gullick and provided examples of the tasks and issues within each category of the PIP.

[76] Ms Pike stated that Mrs Pham did not actively participate in the discussion despite Ms Gullick and herself pausing and asking Mrs Pham if she have any comments. Ms Pike stated that Mrs Pham did not respond substantially to most matters that were discussed, although Mrs Pham disagreed that communication with the rest of the finance team needed to be improved.

[77] During the meeting, Mrs Pham again stated she had never been put on a PIP before and became upset. Mrs Pham did not wish to take the opportunity to have a break and at the conclusion of the meeting, Ms Pike stated she told Mrs Pham to take a copy of the PIP home to review, as her feedback was welcome, or she could sign the PIP at the meeting and the PIP would commence.

[78] Ms Pike disputed a number of statements made by Mrs Pham, and stated they were incorrect. 76

[79] Ms Pike’s evidence was that the orders sought by Mrs Pham regarding her reporting line are operationally unworkable and that there is no one other than Ms Gullick that Mrs Pham could report to or be supervised by. 77 Ms Pike expressed the view that it would be impractical for Ms Gullick to be seated away from her finance team.78

Evidence of Ms Gullick

[80] Ms Gullick is the Property Council’s Chief Financial Officer and Company Secretary, and has been Mrs Pham’s direct supervisor since her commencement with the Property Council in June 2016. The finance team comprises of seven permanent employees, which includes Mrs Pham as the financial accountant. The finance team works in an open plan office environment making it easier to check in with members of the team about work-related issues on a regular basis, in comparison to workplaces with separate offices. The office contains pods which are an arrangement of four desks which enabled Ms Gullick to have regular and ongoing interactions with Mrs Pham on a day-to-day basis as they sat adjacent to each other on separate desks. 79

[81] Ms Gullick stated that from June 2016 to June 2019, she conducted monthly one-on-one meetings with Mrs Pham, other than when she was on leave. In 2019, meetings were held on 31 January, 21 February, 20 March, and 27 May. Ms Gullick stated that until the meeting on 27 May 2019, Mrs Pham had never raised any concerns with her workload.

[82] In about mid-February 2018, Ms Gullick reviewed Mrs Pham’s job description and highlighted what Mrs Pham had not been doing that she wanted her to be doing when she returned from maternity leave. 80 One of the items that she highlighted was ‘On time and accurate review of payroll when required’. At the time of Mrs Pham going on maternity leave, Ms Gullick had been the only person performing the payroll assurance check and she considered it important that another person within the finance team was able to perform this function.

[83] On 23 February 2018, Ms Gullick met with Mrs Pham prior to her proceeding on maternity leave, which was the normal practice before an employee commences such leave. The purpose of the meeting included to discuss Mrs Pham’s performance development plan for 2018 and for a handover of tasks.

[84] Ms Gullick stated that at this meeting she advised Mrs Pham that on return from maternity leave she wanted Mrs Pham to perform the payroll quality assurance tasks, which was one of the duties in her position description. Ms Gullick stated that Mrs Pham did not object to this request. Also, during this meeting she explained to Mrs Pham that she wanted her to return with a customer service mindset to which Mrs Pham took no objection. 81

[85] In March 2018, prior to Mrs Pham commencing maternity leave, a baby shower morning tea was held to farewell Mrs Pham at a city restaurant, at which Mrs Pham stated that the only thing on the menu that she wished to eat was the sausage and she joked that she was having a boy, that’s why she had been having so much meat. 82

[86] On 18-20 June 2018, Mrs Pham advised in emails to Ms Gullick that she couldn’t wait to come back to work and wished to use ‘keeping in touch days’ to undertake some work as she needed to do some ‘brain activities’. 83 On 22 June 2018, Ms Gullick emailed Mrs Pham a list of tasks that she needed assistance with. During July 2018, Mrs Pham worked six days, including one day from home.

[87] On 21 August 2018, Mrs Pham return to work from maternity leave to work full-time.

[88] Ms Gullick stated that Mrs Pham performed the payroll assurance check from March 2018 to October 2018, and spent on average three hours each month doing so. As part of the November 2018 payroll process, Ms Gullick trained Mrs Pham in the payroll assurance check and sat next to Mrs Pham at her desk and showed her what was required to be done. A few days later Ms Gullick showed Mrs Pham, the second draft of the payroll and how to perform the final review of the second draft of the payroll. Ms Gullick states that she formed the view that Mrs Pham picked up the steps involved and did not express any difficulties with understanding the process. 84

[89] In December 2018 and January 2019, Mrs Pham performed the initial review of the payroll assurance check and Ms Gullick performed the final review. In February and March 2019, Mrs Pham performed both roles and at no stage did she advise she was having any difficulties in doing so.

[90] On 13 March 2019, Mrs Pham requested that she worked from home on 19 March, to be able to meet with her son’s school teacher, and Ms Gullick approved the request. On 19 March, as Ms Gullick was preparing the financial year 2020 budget, she emailed Mrs Pham about a number of issues concerning the budget as Mrs Pham was working from home that day. Ms Gullick believed it was acceptable for her to email and send text messages to Mrs Pham while she was working from home.

[91] On 21 March 2019, Mrs Pham emailed Ms Gullick stating she needed to head home at 9:30 am as her mother was not well and was going to the hospital. Mrs Pham stated she would try and finish her work and take the laptop with her to the hospital. Ms Gullick responded expressing her sympathy. On the same morning, Ms Gullick sent a text message to Mrs Pham stating that she should not worry about the spreadsheet and focus on her mother as she can get others to assist. Later that morning, Mrs Pham responded advising that she had completed certain work and was working on other matters. Ms Gullick replied thanking her and asking how her mother was doing. Later that day Ms Gullick emailed Mrs Pham a short query regarding figures on a depreciation spreadsheet, to which Mrs Pham replied that she was going to the hospital and would not be taking her laptop. Ms Gullick replied that she hoped all was well. Ms Gullick states she did not send any further emails or text messages that day and that Mrs Pham raised no concern with her over the emails and text messages that she had sent on 21 March 2019. 85

[92] In September 2018, Mrs Pham requested that she attend a course to improve her verbal and written communication skills, which Ms Gullick approved. 86 Ms Gullick stated that the Property Council had invested more on Mrs Pham’s professional development than any other staff member as she was keen to learn and was her second in charge.

[93] From 3 April 2019 to 6 May 2019, Mrs Pham was on annual leave during which period Ms Gullick performed the initial and final review of the payroll assurance check. In mid-June 2019, Mrs Pham ceased working and Ms Gullick performed the June 2019 review of the payroll assurance check. 87

Performance concerns

[94] Ms Gullick stated that in April 2019 she had concerns with aspects of Mrs Pham’s recent work performance. Ms Gullick detailed a number of work performance issues that she had identified and on 27 May 2019 met with Mrs Pham and advised her that she had noticed a lot of errors with her work. Ms Gullick did not regard the meeting as a disciplinary meeting, but an attempt to identify how she could assist Mrs Pham with her tasks. Mrs Pham acknowledged that the quality of her work had slipped and she had been taking on too much work. Mrs Pham stated that she felt payroll was not part of her job description and Ms Gullick disagreed, stating that it was part of her job description and that she was to conduct payroll quality assurance. Ms Gullick stated that this was the first time Mrs Pham had raised a concern with performing payroll tasks. 88

[95] At this meeting, Mrs Pham became upset and requested whether she could work two days a week from home. On 30 May 2019, Ms Gullick sent an email to Mrs Pham confirming that she would trial one day per week working from home and then reassess the situation in early August.

[96] On 31 May 2019, Ms Gullick reached out to Ms Pike, the Recruitment and Employee Experience Manager, requesting time to discuss Mrs Pham as she wished to obtain support as to how to address her concerns with Mrs Pham’s work performance. On 5 June 2019, Ms Gullick received an email from Mrs Pham attaching a detailed spreadsheet containing what she described as her responsibilities from the time she started with the Property Council and that it had taken her 12.5 hours to complete. Ms Gullick’s immediate response was shock as she had only asked Mrs Pham to prepare a short overview of her key tasks and the time it took her to complete them.

[97] On 5 June 2019, Ms Gullick met with Ms Pike to speak to her about the spreadsheet that Mrs Pham had forwarded.

[98] On 7 June 2019, Ms Gullick met Mrs Pham, together with Ms Pike to go over Mrs Pham’s workload and responsibilities and concerns over her performance. Ms Gullick’s description of what occurred at this meeting was consistent with that given by Ms Pike with the meeting ending in Ms Gullick advising that Ms Pike and herself would go away and work out what tasks could be removed from her temporarily and permanently, so she could focus on the balance of her tasks. 89

[99] Ms Gullick stated that between 7 and 13 June 2019 she had time to reassess all of the tasks of Mrs Pham and what she could remove permanently and what tasks she could reallocate to others while Mrs Pham focused on quality and year end tasks. Between 12 and 14 June 2019, Ms Pike and Ms Gullick worked together to develop a draft PIP.

[100] On 13 June 2019, Ms Gullick met with Mrs Pham and Ms Pike to discuss the measures that could be put in place to improve Mrs Pham’s performance, including the removal of some tasks. Mrs Pham was advised at the meeting that she would be placed on a PIP to assist with her tasks and review how she was tracking.

[101] On 14 June 2019, the parties met again and Mrs Pham was provided with a draft PIP. Ms Gullick stated that she went through each line of the PIP and explained to Mrs Pham what was meant in terms of her expectations. Ms Gullick states that Mrs Pham did not respond to her comments other than to occasionally say ‘okay’. During the meeting, Ms Pike reiterated that the purpose of the PIP was to support Mrs Pham in improving her performance. Mrs Pham was invited to read through the PIP over the weekend and advise of any queries, after which it could be signed and the PIP commenced. Following this meeting, Ms Gullick’s evidence was that it was the last time she spoke to or saw Mrs Pham.

[102] Ms Gullick’s witness statement and supplementary witness statement responded to statements made by Mrs Pham and detailed at length where Ms Gullick disputed the version of events given by Mrs Pham.

[103] Ms Gullick denied that Mrs Pham experienced bullying at work 90 and stated that the first bullying complaint made by Mrs Pham was the letter from her solicitor.91 Ms Gullick claimed to have been a supportive figure to Mrs Pham through previous difficulties that Mrs Pham faced during her third pregnancy.92

[104] Ms Gullick’s evidence was that the PIP was a way of addressing real performance concerns that had arisen, and that it was not a form of disciplinary action. 93

Evidence of Ms Mulyono

[105] Ms Mulyono is an Accounts Payable Officer for the Property Council. Ms Mulyono provided a witness statement of 22 May 2020, and a supplementary statement but was not required for cross-examination. Ms Mulyono has been a member of the finance team since August 2016 and reported directly to Mrs Pham up until her absence from work in June 2019. Since then Ms Mulyono has reported directly to Ms Gullick. Ms Mulyono’s evidence was that both Mrs Pham and Ms Gullick had been supportive managers and provided her with the necessary independence to allow her to work without micromanaging her. 94

[106] Ms Mulyono stated that on a Friday in June 2019, while at her desk, she received a telephone call from Mrs Pham asking her to come up to the meeting room. Mrs Pham was in the room by herself and stated that she had been given a performance improvement plan and that if she didn’t improve she could get in trouble. 95

[107] Ms Mulyono did not regard Ms Gullick’s communication style as “very abrupt” as was stated by Mrs Pham in her statement of 29 June 2020 96 nor did she witness Ms Gullick speak to Mrs Pham in this way.97 Ms Mulyono stated that she did not observe any mocking of Mrs Pham by Ms Gullick at the morning teas held by the Property Council or that Mrs Pham was upset following the morning teas and Mrs Pham did not express to her that she was upset.98

Submissions

[108] The respondents submitted that Mrs Pham was not bullied at work and submitted that Mrs Pham was not the subject of “unreasonable” behaviour within the meaning of s.789FD(1)(ii) of the Act. It was submitted that Mrs Pham was not the subject of “repeated” unreasonable behaviour (within the meaning of s.789FD(1)) and that the behaviour Mrs Pham was subjected to did not create “a risk to health and safety”. 99

[109] Further, it was submitted that Mrs Pham was the subject of “reasonable management action” carried out in a “reasonable manner”. The respondents also submitted that Mrs Pham is not at “risk” of “continuing” to be bulled at work within the meaning of s.789FF(1)(b), and that there is no need to make an order to “prevent” Mrs Pham being bullied at work. 100

[110] In February 2018, Ms Gullick informed Mrs Pham she needed to support the payroll function on return from maternity leave and was again advised of this in September 2018. In October 2018, the key performance indicators for Mrs Pham included responsibility for supporting the payroll function. From November 2018 until March 2019, Mrs Pham performed duties associated with the payroll function. On return from annual leave taken between April and May 2019, Mrs Pham met with Ms Gullick on a number of occasions in May and June where the requirement to perform payroll tasks was confirmed and Mrs Pham’s workload issues were addressed. 101

[111] It was contended that the payroll tasks were not additional tasks but formed part of the normal duties of Mrs Pham who performed them without complaint until April 2019. It was submitted that the payroll tasks required three to four hours of work each month, and that they were not always performed by Mrs Pham. When the payroll tasks were requested of Mrs Pham, the requests were inherently reasonable and formed part of reasonable management action. 102

[112] The Property Council submitted that Mrs Pham was not prevented from caring for her mother at any time. It was submitted that Mrs Pham only raised one instance of not being able to care for her mother in March 2019, but did not raise the issue until May 2019, two months after the relevant event. 103

[113] It was submitted that the PIP was not a form of disciplinary action, but rather reasonable management action designed to improve the performance of Mrs Pham in areas of admitted deficiency. Further, the PIP was implemented in a reasonable manner that was not aggressive or intimidating. 104 The Property Council pointed to the Full Bench decision Blagojevic v AGL Macquarie Pty Limited in submitting that in circumstances of a worker being placed on a PIP, the Commission is not to form its own judgment on whether the performance was satisfactory or unsatisfactory or to substitute its judgment for that of the employer.

[114] The Commission is only able to intervene where the decision to introduce the PIP lacks an evident and intelligible justification such that a reasonable person would regard the decision as unreasonable.” 105

[115] The allegations that Ms Gullick engaged in any abusive or humiliating behaviour towards Mrs Pham were denied and it was submitted that in light of the actual behaviour, Mrs Pham could not reasonably believe that she was the subject of bullying behaviour. 106

[116] It was put that Mrs Pham is not at risk of continuing to be bullied as she is currently not working. Mrs Pham remains off work on workers compensation and based on the existing medical evidence, Mrs Pham’s date of return to work is unknown, if at all. 107

[117] The respondents submitted that the application should be dismissed, and that the Commission should decline to grant Mrs Pham any relief. 108

[118] The Property Council raised some credibility issues with Mrs Pham’s evidence, noting that some of the alleged behaviour either did not occur, or was overstated by Mrs Pham. 109

[119] It was submitted that much of the evidence relied on by Mrs Pham relating to the alleged behaviour is not factual but stated as a conclusion, and as such, “the Commission could not (as a matter of law) be satisfied that the alleged behaviour occurred based on such statements of conclusion.” 110

[120] While not disputing the medical evidence relied on by Mrs Pham, 111 the Property Council contended that the fact that Mrs Pham was subsequently diagnosed as suffering a mental illness does not mean that the relevant (reasonable) behaviour created a risk to her health.112

[121] It was submitted that in circumstances where Mrs Pham was not bullied and where it is highly unlikely that Mrs Pham will return to work for the Property Council in the near future, there is no rational foundation for a view that Mrs Pham will continue to be subjected to bullying. 113

[122] Regarding the orders sought by Mrs Pham, it was submitted that the orders sought are impractical, ambiguous, and directed not at the prevention of the risk of future bullying but rather at implementing the preferred working arrangements of Mrs Pham. 114

Conclusion

[123] In order to make final orders in a bullying application, there are two requirements under s.789FF(b) of the Act. The Commission must first find that Mrs Pham has been bullied at work by an individual or a group of individuals and secondly that there is a risk that Mrs Pham will continue to be bullied at work by the individual or group concerned.

[124] Once these two requirements have been satisfied, s.789FF confers on the Commission a broad power to make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent an employee from being bullied at work.

[125] In establishing whether Mrs Pham was bullied at work s.789FD of the Act provides 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.”

[126] Section 789FF is the relevant section that limits the Commission in making any orders when satisfied that bullying has occurred to also being satisfied there is a risk that the employee will continue to be bullied.

[127] There is no dispute that the employer is a constitutionally-covered business, and it is also accepted by the parties in this case that the alleged conduct, if it occurred, took place whilst Mrs Pham was at work. 115

[128] The application of s.789FD has been discussed in various decisions of the Commission where it has been held that the terms of s.789FD are to be applied objectively and that s.789FD(2) ‘reasonable management action carried out in a reasonable manner’ is not so much an “exclusion” but a qualification which reinforces that bullying conduct must of itself be unreasonable. 116 It also emphasises the right of management to take reasonable management action in the workplace.117

[129] The issues in dispute in this case are therefore whether an individual or group of individuals have repeatedly behaved unreasonably towards Mrs Pham and whether any such behaviour has created a risk to her health and safety. In considering whether there has been repeated unreasonable behaviour the Commission needs to consider whether any of the conduct was reasonable management action taken in a reasonable manner.

[130] Throughout these proceedings, Mrs Pham has contended that she was subjected to unreasonable behaviour by being required to perform additional duties, by being prevented from caring for her mother, by being placed on an unreasonable PIP and by being verbally abused, mocked and humiliated. The respondents have denied these allegations, stating that Mrs Pham was subject to reasonable management action carried out in a reasonable manner.

[131] In Mac v Bank of Queensland Ltd, 118 Hatcher VP provided the following examples of conduct “which one might expect to find in a course of repeated unreasonable behaviour that constituted bullying at work” as including:

“… 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.” 119

[132] In Edwards v E S Trading Co (Discounts) Pty Ltd (t/as E & S Kitchen, Bathroom Laundry), 120 an employee’s genuinely held belief that she was being bullied at work was insufficient to enliven the Commission’s jurisdiction. The conduct must not only be perceived as being bullying, but that belief “must be reasonable in the sense that it is able to be supported or justified on an objective basis.”

[133] In Ms SB, Hampton C observed that:

“whether management action is reasonable requires an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time” 121

[134] The Commissioner also relevantly stated 122:

“The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was “more reasonable” or “more acceptable”. In general terms this is likely to mean that:

• management actions do not need to be perfect or ideal to be considered reasonable;

• a course of action may still be “reasonable action” even if particular steps are not;

• to be considered reasonable, the action must also be lawful and not be “irrational, absurd or ridiculous”;

• any “unreasonableness” must arise from the actual management action in question, rather than the applicant’s perception of it; and

• consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances.”

[135] Having regard to the authorities referred to above, a consideration of the allegations made by Mrs Pham is made below.

Payroll tasks

[136] Mrs Pham’s position as the Financial Accountant clearly involved payroll tasks. The 2015 Position Description for the position of Financial Accountant includes ‘On time and accurate review of payroll’. 123 The 2018 Position Description states under the heading of Key Tasks: ‘On time and accurate review of payroll, when required.’124 The Property Council contended that the payroll tasks did not involve Mrs Pham undertaking the roll of Payroll Manager.125

[137] I do not accept that requiring Mrs Pham, a Financial Accountant, to perform payroll tasks as set out in the position description constitutes unreasonable behaviour. The tasks required to be performed fall within Mrs Pham’s duties as stipulated in her position description. In Mrs Pham’s absence the evidence was that these tasks were undertaken by Ms Gullick the Chief Financial Officer who stated that they averaged about three hours a month. 126

[138] Mrs Pham submitted that although payroll review tasks were in her position description, she was not required to perform them, as she was part of a new, re-structured team. 127 This submission is difficult to accept, given the documentary evidence provided by the respondents.

[139] It is contrary to the advice and instruction provided to Mrs Pham by Ms Gullick on a number of occasions and on which she was provided training by Ms Gullick. Mrs Pham performed the payroll assurance checks in December 2018 and February and March 2019 without indicating that she had any difficulties. 128

[140] In any event, it would not be unreasonable for Ms Gullick, as Chief Financial Officer and the direct manager of Mrs Pham to direct Mrs Pham to perform duties including payroll duties that are within her capabilities and not outside her position description. Mrs Pham’s position description also states she is required to perform other tasks that may reasonably be required.

[141] The requirement for Mrs Pham to perform payroll review tasks is a reasonable management direction and an order as sought by Mrs Pham that she not perform such duties or that they be limited in duration cannot be substantiated on the grounds of an increased workload as the tasks have always existed and are not on the evidence, onerous.

Preventing family care

[142] Mrs Pham submitted that the respondents’ actions prevented her from caring for her elderly mother, this allegation requires further analysis.

[143] On 19 March, Mrs Pham was given permission to work from home. Mrs Pham’s request was made on the basis that she needed to meet with her son’s teacher. Mrs Pham did not request to take any leave. 129 During the day, Ms Gullick emailed and telephoned Mrs Pham about a number of work matters. Mrs Pham alleges that she was unable to collect her mother from a doctor’s appointment due to multiple emails and telephone calls from Ms Gullick.130

[144] On the evidence, the respondents were clearly unaware of Mrs Pham’s mother’s medical appointment or that the work queries of Ms Gullick on the 19 March 2019 prevented Mrs Pham from picking up her mother from a doctor’s appointment, particularly when no objection was taken by Mrs Pham at the time to the work requests.

[145] While Mrs Pham stated that Ms Gullick kept calling her mobile ‘despite working from home’, Mrs Pham’s telephone records indicate that only one telephone call was made by Ms Gullick. 131

[146] On the morning of 21 March 2019, Mrs Pham advised she was heading home after 9:30 am as her mother was not well and was going to hospital. Mrs Pham stated she would take her laptop to the hospital. Mrs Pham did not advise that she was unable to work or could not be contacted as needed by Ms Gullick. Emails sent by Ms Gullick that morning to Mrs Pham expressed Ms Gullick’s concern for the welfare of Mrs Pham’s mother and stated for her not to worry about a particular work task and to focus on her mother. 132

[147] I am unable to conclude that any conduct of Ms Gullick in the above circumstances was unreasonable or constituted bullying. It is difficult to see how such an accusation can sensibly have been made where Ms Gullick’s request to work from home was agreed to, no advice about her mother’s medical appointment was provided, and the wellbeing of her mother was a matter of concern for Ms Gullick.

Verbal abuse, humiliation

[148] In Mrs Pham’s closing submissions, it was acknowledged that there is competing evidence, but that Mrs Pham’s evidence should be preferred. 133 Mrs Pham has failed to persuade the Commission why her evidence should be preferred over the corroborating evidence of Ms Gullick, Ms Pike and Ms Mulyono.

[149] The submissions and evidence of the parties are in dispute regarding the events where it is alleged that Ms Gullick verbally abused, mocked or humiliated Mrs Pham. The parties provided comprehensive written evidence over what occurred, and based on the evidence that was presented I am not satisfied that these individual events as stated by Mrs Pham occurred in the manner that was put by Mrs Pham. This includes the events following Mrs Pham having eaten a sausage at her maternity leave morning tea and the comments of Ms Gullick regarding the payment of staff superannuation.

Performance of Improvement Plan

[150] Mrs Pham submitted that the PIP was unreasonable and unwarranted, and that the implementation of the PIP was reactionary after Mrs Pham had raised concerns about her workload. It was also argued by Mrs Pham that the performance ‘issues’ raised were embellished by Ms Gullick. In contrast, the respondents argued that the PIP was reasonable management action that was taken in the context of Mrs Pham’s admitted performance issues. The respondents also made submissions that the PIP was not disciplinary action, and that termination of Mrs Pham’s employment was not being contemplated.

[151] The Explanatory Memorandum to the Fair Work Amendment Bill 2013 when referring to the introduction of the bullying jurisdiction to the Act states in respect of s.789FD at item 112:

“Persons conducting a business or undertaking have rights and obligations to take appropriate management action and make appropriate management decisions. They need to be able to make necessary decisions to respond to poor performance or if necessary take disciplinary action and also effectively direct and control the way work is carried out. For example, it is reasonable for employers to allocate work and for managers and supervisors to give fair and constructive feedback on a worker’s performance. These actions are not considered to be bullying if they are carried out in a reasonable manner that takes into account the circumstances of the case and do not leave the individual feeling (for example) victimised or humiliated.”

[152] As correctly submitted by the respondents, the Commission is not to form its own judgment on whether Mrs Pham’s performance was satisfactory or unsatisfactory and to substitute its own judgment for that of the employer. It must be established that the PIP lacked an evident and intelligible justification such that a reasonable person would regard the decision as unreasonable. 134

[153] I accept that there were performance issues around communication between Mrs Pham and the other commercial accountants within the finance team, and there is some evidence of errors being made by Mrs Pham. 135 I also accept that Mrs Pham was aware of these issues, and acknowledged this at the 7 June 2019 meeting with Ms Gullick and Ms Pike.136 I do not accept that the decision to introduce the PIP lacks an evident and intelligible justification such that a reasonable person would regard the decision as unreasonable.

[154] In Re Aly, 137 Bissett C found that the employer’s decision to place the employee on a PIP, on the facts involved, constituted reasonable management action. The Commissioner noted that “in determining if management actions are unreasonable it must be on the basis of an objective assessment of the actions and not the employee’s perceptions of the actions.”138

[155] I also accept the respondents’ submission regarding the intervention and inclusion of Ms Pike in Mrs Pham’s performance meetings. It is entirely appropriate that a specialist human resources professional be involved in the performance reviews of employees in order to assist, consult and help facilitate discussion. This is reasonable management action.

[156] The respondents state which I accept, that it was made clear to Mrs Pham that the PIP was designed to improve her performance and was not intended to punish Mrs Pham or constitute disciplinary action. However, I also accept that the inclusion at the bottom of each page of the PIP the following statement:

‘If you fail to meet the required outcomes by the review date, without a reasonable explanation, you will be subject to possible disciplinary action’ 139

was capable of creating the impression in the eyes of Mrs Pham that the PIP was a disciplinary exercise. It would have been easier for Mrs Pham to accept that the PIP was only designed to improve her performance if this statement was not included, but this imperfection does not constitute bullying nor does it constitute repeated, unreasonable behaviour that creates a risk to health and safety.

Additional workload

[157] I accept that Mrs Pham performed some work outside her ordinary hours but this was not demonstrated to be an ongoing practice or having occurred after having already worked a full day.

[158] The payroll tasks were listed under ‘Key Tasks’ in Mrs Pham’s position description, which she had previously performed. It appeared more the case of Mrs Pham not wishing to undertake any payroll tasks on the basis she was the Financial Accountant than that the payroll tasks were excessive. Ms Gullick having herself performed these tasks was able to state that they averaged three hours a month.

[159] I am also satisfied that the respondents were in the process (via the PIP) of identifying the time spent by Mrs Pham on her work tasks and removing at least on a temporary basis some tasks to assist Mrs Pham to improve her work performance to the level expected.

Risk that Mrs Pham will continue to be bullied

[160] Having regard to the provisions of the Act there must be a finding that Mrs Pham has been bullied at work before any future risk of a continuation of being bullied at work is considered.

[161] Although Mrs Pham has expressed interest in returning to work if certain conditions were met, there remains a question as to whether she has the capacity to do so. Mrs Pham has been out of the workplace since June 2019 and has provided regular medical documentation stating her incapacity to return to work. In the opinion of Consultant Psychiatrist and Psychotherapist Dr Dimarco, Mrs Pham’s mental state may complicate or present a significant barrier to Mrs Pham returning to work. In her report on 5 December 2019, Dr Dimarco states:

“Mrs Pham has expressed interest in returning to work with the Property Council if her role description was revised and she could work with a different manager. She also reported concern that thoughts of harming herself in the workplace could complicate returning to work with the Property Council. Anger and grievance towards her employer may be a significant barrier to returning to her current employer unless her predicament is resolved to her perceived satisfaction.” 140

[162] Dr Dimarco further states in respect of Mrs Pham’s prognosis:

“Prognosis is guarded at this point given the intensity of anger associated with her grievance towards her employer, her fixed mindset that she wants justice …” 141

[163] As stated by the Full Bench in Re McInnes 142

“The legislative scheme is not directed at punishing past bullying behaviour or compensating the victims of such behaviour. It is directed at stopping future bullying behaviour.”

[164] As stated, the issue of whether Mrs Pham would be subject to ongoing bullying as required by s.789FF(b)(ii) of the Act only arises following a conclusion that bullying has occurred.

[165] On the basis of the conclusions reached above in respect to the complaints made by Mrs Pham and the objections raised by the respondents, I am not satisfied that the actions of the Property Council or Ms Gullick constitute bullying as defined under the Act.

[166] The Commission can only act when its jurisdiction is invoked, and even then, there is a discretion whether to issue orders to prevent the continuation of any bullying.

[167] The evidence has not established to my satisfaction that the respondents have repeatedly behaved unreasonably towards Mrs Pham creating a risk to her health and safety. The conduct complained of by Mrs Pham in the main fits within the scope of reasonable management action carried out in a reasonable manner.

[168] Having regard to all the circumstances, I am not satisfied that Mrs Pham has been bullied at work by a person or group of persons at the workplace. I accept that Mrs Pham is suffering from psychological disorders, however, Mrs Pham has not been able to demonstrate to the Commission’s satisfaction that this is the result of any unreasonable and repeated conduct of the respondents.

[169] This is a case which is not uncommon in bullying applications that come before the Commission, where performance issues have been raised resulting in significant employee anxiety as evidenced by the reports of Dr Dimarco and Ms Wakim. No employee likes to be told that their performance is lacking and that improvement is required. Mrs Pham’s evidence was that she had never been put on a PIP before, however her response that the PIP was bullying conduct undertaken by the respondents has not been made out.

[170] For the above reasons the application is dismissed.

DEPUTY PRESIDENT

Appearances:

A Munro Counsel for the Applicant
A Gotting Counsel for the Respondents

Hearing details:

2020

Sydney

September
14, 15

Final written submissions:

2020

22 September Applicant
29 September Respondents

Printed by authority of the Commonwealth Government Printer

1 Form F72 pages 1-3.

2 Form F72 page 4.

3 Exhibit R11.

4 Witness statement of 18 March 2020, at [61].

5 Form F73 page 8.

6 17 February 2020, 11 June 2020 and 23 June 2020.

7 s.596(2)(a) Mr Gotting represented both the Property Council and Ms Gullick (the respondents).

8 On the final hearing day Mrs Pham tendered a document outlining the orders sought.

9 Applicant’s amended orders sought, tendered on 15 September 2020.

10 Applicant says support to payroll functions was ‘back up only’ in first statement on 11 December 2019, paragraph 17.

11 Applicant’s F72 at 2.1 of 11 December 2019.

12 Witness statement of 18 March 2020, at [13-16].

13 Ibid at [16].

14 Ibid at [23].

15 Witness statement of 29 June 2020, at [11].

16 Witness statement of 18 March 2020, at [24].

17 Witness statement of 29 June 2020, at [10].

18 Ibid at [10(a)].

19 Statement attached to F72 at [8].

20 Witness statement of 18 March 2020, at [26].

21 Statement attached to F72 at [11].

22 Statement attached to F72 at [12].

23 Ibid at [17].

24 Ibid at [24].

25 Witness statement of 29 June 2020, at [4].

26 Statement attached to F72 at [27].

27 Statement attached to F72 at [32].

28 Ibid at [34].

29 Ibid at [36].

30 Statement attached to F72 at [43].

31 Ibid at [48].

32 Ibid at [54].

33 Witness statement of 18 March 2020 at [60].

34 Statement of 29 June 2020, at [27].

35 Ibid at [28].

36 Statement attached to F72 at [60].

37 Witness statement of 18 March 2020, at [47].

38 Ibid at [51].

39 Statement attached to F72 at [78-82].

40 Statement attached to F72 at [66].

41 Statement of 29 June 2020, at [40].

42 Ibid at [45].

43 Ibid at [47].

44 Ibid at [49].

45 Written submissions dated 17 March 2020, 22 June 2020, 18 September 2020.

46 Written submissions dated 17 March 2020 at [2].

47 Ibid at [3].

48 Ibid at [12.a].

49 Ibid at [12.c]

50 Ibid at [12.d].

51 Ibid at [12.e].

52 Submissions in reply on 22 June 2020,at [5-10].

53 Report by Ms Josie Wakim on 26 August 2019; Report by Dr Katie Dimarco on 5 December 2019.

54 Report by Dr Katie Dimarco of 5 December 2019, pages 6-7.

55 Exhibit R11 WorkCover certificate stated Mrs Pham was unfit to work until 28 October 2020.

56 Written submissions of 17 March 2020, at [26].

57 Closing submissions of 18 September 2020, [4-7].

58 Ibid at [34-40].

59 Ibid at [49-52].

60 Ibid at [56-64].

61 Witness statements of Kathryn Anne Pike on 22 May 2020 and 27 July 2020.

62 Witness statements of Joanne Gullick on 22 May 2020 and 27 July 2020.

63 Witness statements of Silvi Mulyono on 22 May 2020 and 27 July 2020.

64 Statement of K Pike on 22 May 2020, pages 4-5.

65 Witness statement of 22 May 2020, at [35].

66 Ibid at [36].

67 Ibid at [39].

68 Ibid at [43-44].

69 Supplementary statement of K Pike on 27 July 2020, pages 3, 7, paragraphs 6.e, 14.a.

70 Statement of K Pike on 22 May 2020, page 10, paragraph 57.

71 Witness statement of 22 May 2020, at [56].

72 Ibid at [123].

73 Ibid at [71].

74 Ibid at [77].

75 Ibid at [84].

76 Ibid at [121-150] and throughout her undated supplementary statement exhibit R4.

77 Ibid at [151].

78 Supplementary statement of 27 July 2020, at [14.c].

79 Exhibit R5 Statement of J Gullick at [16].

80 Ibid at [56].

81 Ibid at [67].

82 Ibid at [74-75].

83 Ibid at [84-85] and attachment TB12.

84 Ibid at [100-102].

85 Ibid at 117-130].

86 Ibid at [39-40].

87 Ibid at [106].

88 Ibid at [140-151].

89 Ibid at [191].

90 Ibid, at [307].

91 Ibid, at [307].

92 Ibid pages 6-8.

93 Ibid at [252].

94 Statement of Silvi Mulyono of 22 May 2020, at [16].

95 Statement of Silvi Mulyono of 22 May 2020, at [17-19].

96 At [38].

97 Supplementary witness statement of Silvi Mulyono on 27 July 2020, at [5].

98 Statement of 22 May 2020, at [43].

99 Outline of submissions of 22 May 2020, pages 1-2.

100 Ibid.

101 Ibid at [5.7 – 5.22].

102 Ibid pages 6-7.

103 Ibid at [7.9].

104 Ibid at [7.11-7.12].

105 [2018] FWCFB 4174 at [21-22], [42], [53]; See also Appellant v Respondent [2015] FWCFB 1972 at [30] and Re Purcell [2016] FWC 2308 at [21].

106 Submissions of 22 May 2020, paragraphs 7.14, 8.

107 Ibid at paragraph 9.

108 Ibid at paragraphs 2-3.

109 Closing submissions on 28 September, paragraph 20.

110 Ibid paragraph 11.8; MUA v Patrick Stevedores Holdings Pty Limited[2014] FWCFB 657 at [49].

111 Ibid paragraph 3.

112 Ibid paragraph 22.

113 Ibid paragraph 40.

114 Ibid paragraphs 41-51.

115 Submissions on 22 May 2020, paragraph 4.

116 Mac v Bank of Queensland Ltd[2015] FWC 774 at [95].

117 GC [2015] FWC 6988 at [47], [52] and Amie Mac v Bank of Queensland Limited and others[2015] FWC 744.at [48], [88].

118 [2015] FWC 744.

119 Ibid at [99].

120 [2016] FWC 8223 at [61].

121 [2014] FWC 2104 at [49].

122 Ibid at [51].

123 Respondents tender bundle TB02.

124 Ibid at TB07.

125 Supplementary statement of Ms Gullick at [15(d)].

126 Witness statement of Ms Gullick of Exhibit R5 at [93], [98-98].

127 Applicant’s closing submissions at [9].

128 Witness statement of Ms Gullick of Exhibit R5 at [103-104].

129 TB18.

130 Statement attached to F72 at [27].

131 Statement of 18 March 2020 at [53] and attachment R.

132 Statement of Ms Gullick Exhibit R5 at [120] and TB26.

133 Applicant’s closing submissions, pages 1-2, paragraphs 4-7.

134 See comments of Hampton C in Ms SB [2014] FWC 2104 at [49-51].

135 Closing submissions at [14.1-14.5].

136 Statement of K Pike on 22 May 2020, page 10, paragraph 57.

137 [2015] FWC 4419.

138 Ibid at [108].

139 TB 46.

140 Report of 20 December 2019 at page 7.

141 Ibid at page 10.

142 [2014] FWCFB 1440 at [9].