YH v Centre

[2014] FWC 8905

[2014] FWC 8905

FAIR WORK COMMISSION

DECISION

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

YH
v
Centre and Others
(AB2014/1146)

COMMISSIONER WILSON MELBOURNE, 11 DECEMBER 2014

Application for an FWC order to stop bullying; whether bullying occurred

[1] Ms YH has been employed by the Centre, a community based child care centre in suburban Melbourne, since January 2007. In this employment she works with children as an early childhood educator. The Centre is a small not-for-profit incorporated association managed by a Director and a Committee of Management drawn mainly from parents of children attending the centre. Physically, it comprises four children’s rooms and a staffroom arranged around a corridor. 1

[2] Ms YH makes application to the Fair Work Commission (the Commission) pursuant to the anti-bullying provisions of the Fair Work Act 2009 (the Act), and seeks orders from the Commission against the Centre, and two individuals, Ms LI (the Centre’s Director), and Ms ET (a co-worker).

[3] For the reasons set out in this decision, I do not find that Ms YH has been subjected to bullying as defined by the Act and I refuse the application.

[4] When the matter was first allocated to me, I endeavoured to resolve the parties’ differences through conciliation. When that was unsuccessful, the matter proceeded before me through a determinative conference. Ms YH was represented in these proceedings by her husband, Mr YH. Although Ms YH was generally capable in English, a Mandarin interpreter assisted her for most parts of the determinative conference, including when she gave her evidence. Certain questions were put to, and answered by Ms YH, in English by the Centre’s Counsel. When she answered questions in English, or that had been put to her in English, I believe that Ms YH adequately understood what was being put to her, or what she answered, or that an ensuing process of clarification allowed her to do so.

[5] An earlier procedural decision granting permission for the Centre and the employees, Ms LI and Ms ET, to be represented by a lawyer was the subject of an appeal by Ms YH, which proceeded to a hearing for a Stay Order which was not granted. As a result, the determination of the substantive merits of Ms YH’s anti-bullying application proceeded as scheduled before me, commencing on 10 September. Neither Ms YH, or her husband, Mr YH, or any other person, submitted that it would be inappropriate to so proceed. Final written submissions in the matter were received on 27 October 2014.

LEGISLATION

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

789FD When is a worker bullied at work?

(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally-covered business:

(i) an individual; or

(ii) a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.

(3) If a person conducts a business or undertaking (within the meaning
of the Work Health and Safety Act 2011) and either:

(a) the person is:

(i) a constitutional corporation; or

(ii) the Commonwealth; or

(iii) a Commonwealth authority; or

(iv) a body corporate incorporated in a Territory; or

(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;

then the business or undertaking is a constitutionally-covered business.

[7] Section 789FF sets out the powers of the Commission should it be satisfied there is bullying at work;

789FF FWC may make orders to stop bullying

(1) If:

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

(b) the FWC is satisfied that:

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

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

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

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

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

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

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

(d) any matters that the FWC considers relevant.

CONSIDERATION – PRELIMINARY MATTERS

[8] Relevant to my consideration of the matter are the following six considerations arising out of Part 6-4B;

1. Whether Ms YH is a worker;

2. Whether the Centre is a constitutionally-covered business;

3. Whether an individual or group of individuals have behaved unreasonably towards Ms YH while she was at work;

4. Whether that unreasonable behaviour has been repeated;

5. Whether any repeated unreasonable behaviour creates a risk to health and safety;

6. Whether any aspect of the behaviour, if found, is reasonable management action carried out in a reasonable manner.

[1] A seventh consideration, the contemplation of orders by the Commission, arises in the event of affirmative findings on my part in relation to the above matters, but only in the event there is a risk of the continuation of bullying behaviour by a group or individual directed at Ms YH.

[2] In relation to the first consideration, the test for whether Ms YH is a worker is that contained within the Work Health and Safety Act 2011 (Cth). The evidence supports she is a worker, and I so find.

[3] In relation to the second consideration, the question of whether the Centre is a constitutionally-covered business was not the subject of contest before me. While the Centre initially advanced a jurisdictional objection that it was not a constitutional corporation, it withdrew that objection in the early stages of this matter, after the Commission drew the attention of the Respondent to the decision of Commissioner Hampton in Ms Kathleen McInnes 2, and advised that the approach taken in that matter to assessing whether the Centre was a trading corporation would be applied by me. I regard this as a concession that the Centre is a constitutionally-covered business, and I so find.

CONSIDERATION – HAS THERE BEEN BULLYING?

[4] The third to sixth considerations referred to above, whether anyone has behaved unreasonably towards Ms YH while she was at work; whether the behaviour was repeated; and whether it creates a risk to her health and safety; and whether the behaviour was reasonable management action carried out in a reasonable manner, go to the substantive question of whether there has been bullying of Ms YH. Resolution of that question requires an examination of the whole of the circumstances.

[5] Ascertainment of “unreasonable behaviour” in the context of Part 6-4B of the Act requires application of an objective test having regard to all the relevant circumstances applying at the time. 3 The Explanatory Memorandum which accompanied the Bill from which this legislation arises makes the following points about behaviour and its assessment by the Commission;

“109. The Committee went on to note that ‘repeated behaviour’ refers to the persistent nature of the behaviour and can refer to a range of behaviours over time and that ‘unreasonable behaviour’ is behaviour that a reasonable person, having regard to the circumstances may see as unreasonable (in other words it is an objective test). This would include (but is not limited to) behaviour that is victimising, humiliating, intimidating or threatening.” 4

[6] Commissioner Hampton has held the following about repeated unreasonable behaviour in the matter of Ms SB, with which I concur;

“[41] Having regard to the approach urged by the authorities, the concept of individuals ‘repeatedly behaving’ unreasonably implies the existence of persistent unreasonable behaviour but might refer to a range of behaviours over time. There is no specific number of incidents required for the behaviour to represent ‘repeatedly’ behaving unreasonably (provided there is more than one occurrence), nor does it appear that the same specific behaviour has to be repeated. What is required is repeated unreasonable behaviour by the individual or individuals towards the applicant worker or a group of workers to which the applicant belongs”. 5

[7] There must also be the likelihood of the repeated unreasonable behaviour causing a risk to the health and safety of the bullying victim. However behaviour which would otherwise be considered to fall within the definition of “bullied at work” is excluded from consideration in the event the behaviour is “reasonable management action carried out in a reasonable manner”. These propositions were considered and elaborated upon as follows by Commissioner Hampton in the decision of Ms SB with which I also concur;

“[44] The unreasonable behaviour must also create a risk to health and safety. Therefore there must be a causal link between the behaviour and the risk to health and safety. Cases on causation in other contexts suggest that the behaviour does not have to be the only cause of the risk, provided that it was a substantial cause of the risk viewed in a common sense and practical way. This would seem to be equally applicable here.

[45] A risk to health and safety means the possibility of danger to health and safety, and is not confined to actual danger to health and safety. The ordinary meaning of ‘risk’ is exposure to the chance of injury or loss. In the sense used in this provision, the risk must also be real and not simply conceptual.

[46] Behaviour will not be considered to be bullying conduct if it is reasonable management action carried out in a reasonable manner.

[47] Section 789FD(2) of the FW Act is not so much an “exclusion” but a qualification which reinforces that bullying conduct must of itself be unreasonable. It also emphasises the right of management to take reasonable management action in the workplace. In its application, the provision comprises three elements:

● the behaviour (being relied upon as bullying conduct) must be management action;
● it must be reasonable for the management action to have been taken; and
● the management action must have been carried out in a manner that is reasonable.

[48] The Explanatory Memorandum refers to management decision and decisions about how work is to be carried out. This suggests that the term may be required to be given a wide meaning under s.789FD(2) and that the Legislature intended everyday actions to effectively direct and control the way work is carried out to be covered by the exclusion.

[49] Determining 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. Without limiting that assessment, the considerations might include:

● the circumstances that led to and created the need for the management action to be taken;
● the circumstances while the management action was being taken; and
● the consequences that flowed from the management action.

[50] The specific ‘attributes and circumstances’ of the situation including the emotional state and psychological health of the worker involved may also be relevant.

[51] 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.

[52] For the circumstances in s.789FD(2) of the FW Act to apply, the management action must also be carried out in a ‘reasonable manner’. Consistent with the approach above, what is ‘reasonable’ is a question of fact and the test is an objective one.

[53] Whether the management action was taken in a reasonable manner may depend on the action, the facts and circumstances giving rise to the requirement for action, the way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters”.

[8] Ms YH emigrated to Australia from China with her husband in 1999. Amongst other qualifications, she holds a Diploma of Children’s Service. 6 Ms YH started work as a Child Care Assistant at the Centre in January 2007, initially on a permanent part time basis and then moving to a full time position in either late 2012 or early 2013. She described her job as involving the supervision of children, interacting with them to help with their learning, and recording their learning progress in a portfolio. These duties included ancillary tasks, such as setting up and packing up the yard; cleaning the floors and tables and making the beds; changing nappies; and resetting the bathroom and the room in which the children spent their time.7

[9] The Centre’s rooms and staff are divided according to the ages of the children. Ms YH’s evidence is that she worked with her co-worker, Ms ET, in the 3 Year Old Room in 2010. At the time, Ms ET was the room leader. For about three years, until the beginning of 2014, Ms YH and Ms ET worked in different rooms, but from January 2014, Ms YH was allocated back into the same room as Ms ET, who continued to be the room leader. Because of leave and other commitments, she worked with Ms ET for a total of about five days in 2014 until the events in early February that led to her anti-bullying application. The Centre’s Director, Ms LI, commenced her employment at the end of 2013. 8

[10] The bullying behaviours that are claimed by Ms YH cover a three year period in respect of Ms ET, and this year in respect of Ms LI. When those periods are broken down, it is apparent that the claims in respect of Ms ET are to do with Ms ET’s behaviour towards Ms YH; and her claims in respect of Ms LI are mostly connected with how Ms LI handled complaints made to her in February 2014 firstly by Ms ET and then by Ms YH.

[11] The people who gave evidence in this matter were;

• Ms PC, a former co-worker, on behalf of the Applicant, who submitted an unsworn witness statement and who was not required for cross-examination;



• Ms YH, the Applicant;



• Ms CH, a former staff member, on behalf of the Centre;



• Ms LI, the Centre’s Director;



• Ms SAC, a member of the Centre’s Committee of Management;



• Ms ET, the co-worker, and Room Leader of the 3 Year Old Room.

[12] Ms YH submits that Ms ET bullied her on numerous occasions since 2010 9, although this is referred to in her closing submissions as “interpersonal conflict”.10 She makes allegations of inappropriate questioning to her by Ms ET about a third employee in about September 2010. The alleged questioning arose when Ms YH gave a lift to another employee for a work related event and she was asked about the other employee’s sexuality and what occurred in the car. In November 2010, Ms YH was reprimanded, following a complaint by Ms ET after an incident when a child walked out of the room unsupervised. While she says that she does not have a problem with receiving the warning, she makes the point that, as far as she knows, the other person involved did not receive a warning. 11

[13] Throughout 2010 Ms ET thought Ms YH was not performing to expectations;

“In particular, I was concerned that the Applicant was not pulling her weight with respect to providing care needs to the children. The Applicant refused to put out children’s beds for the rest period, or change the children’s nappies when necessary. These were tasks that she would leave for other staff members to complete. The Applicant also insisted on serving lunch over other duties.” 12

[14] In addition, late in 2010 there was an argument between the two about the service of morning tea to the children. Following this, Ms YH gives evidence that;

“I approached [Ms ET] and tried to explain to her why I and not [Ms CH] was serving morning tea. [Ms ET] stopped me rudely, looked at me angrily with threatening facial expression and yelled at me “That is all nonsense! I have heard all of your nonsense.” I felt really bad at the time. In the early afternoon on that day, during children resting time, we had a room meeting about something else with [the Assistant Director]. Before the meeting ended, I raised the issue that I felt very uncomfortable and humiliated by what [Ms ET] said to me in the morning. Before I finished, [Ms ET] yelled at me again by saying “Yes, what you said is just nonsense!” in front of other staff ...” 13

[15] Ms YH’s evidence on this matter follows with this;

“Towards the end of 2010, after the above event, during the children resting time, [Ms ET] threatened me in the 3 Year Old room. “[Ms YH], it is end of the year. If you don’t listen to me, you will be kicked out of the room,” [Ms ET] said to me. I did not know what to do. For many days I could not sleep but just worrying if I would be able to keep my employment. I did not report this that time but I felt very scared. I just looked forward to the start of the next year when I could work with another room leader.” 14

[16] Ms ET did not directly contradict this evidence and instead recalled that;

“Everyone was provided with an equal opportunity to voice any concerns they had regarding how the room was functioning. I recall that [a co-worker] said that she was concerned she had to complete tasks the Applicant did not want to do, like setting out children’s beds for nap time, and only serving food, not cleaning up afterwards. The Applicant said that she did not like cleaning up after lunch was served to the children. I explained to the Applicant that the rosters were prepared to ensure the required number of qualified staff members were on duty in the room at all times. I recall that the Applicant appeared to be unhappy about this arrangement. It was finally agreed that the Applicant would serve morning tea each week day, which she said she was pleased with.” 15

[17] There was further disquiet between the two at the end of year children’s Christmas party in 2010. Although the two worked in different rooms from 2011, the poor relationship continued. For example in late 2011, Ms YH made a complaint to the Centre’s Director (Ms LI’s predecessor) about Ms ET “intentionally putting me down and undermining the creditability (sic) in front of the whole centre staff”. 16

[18] Ms YH ceased to work in the 3 year old room with Ms ET in 2011, however the evidence does not indicate this to be connected with the relationship between the two. In 2014, Ms YH was moved back to the 3 year old room, which Ms ET supervised, following which there was further negative interaction between the two.

[19] Their interaction drew in Ms LI, and several members of the Committee of Management of the Centre.

[20] It is more likely than not that had the 2014 interactions not taken place that there would not be an anti-bullying application from Ms YH. Whatever interactions may have taken place between Ms YH and Ms ET in particular in the period of 2010 – 2011 are unlikely, of themselves, to have been viewed by Ms YH as a reason to make such an application.

[21] Before referring to these matters, I note that some of the dates on which things occurred are contested between the parties. Since I overall prefer the evidence given on behalf the Centre’s witnesses to that of Ms YH, I have adopted the dates those witnesses put forward. Their evidence on such matters is more likely to be the accurate recollection of when things occurred, including for the reasons of the clarity and consistency of their recollections and that I accept various written records as accurate.

[22] Critical to an understanding of the application are the events surrounding an incident in which steps to a toddler change table were left out in such a manner as could enable unsupervised toddlers to climb up the steps, and potentially fall.

[23] On Tuesday 4 February 2014 Ms YH came into Ms LI’s office at about 2:30 PM saying that she had forgotten the steps and seeking forgiveness. Ms LI asked whether this was the first occasion on which she had left the steps out; Ms YH responded that it was, to which Ms LI replied that an incident report form did not need to be filled in as it was the first time. 17 Shortly after that discussion, Ms ET came in and contradicted what the Applicant had said to Ms LI, and in particular whether this had been the first occasion on which the steps had been left out by Ms YH. Ms LI then told Ms ET that she considered a verbal warning may be appropriate, and that she wanted to meet with Ms YH that afternoon to discuss the incident.18 A short time later, Ms YH returned; Ms LI said that she had been told by Ms ET that this was not the first time that Ms YH had left the wooden stepladder of the change table and that she considered this to be a lie. Ms LI then directed the Applicant to complete an incident report.19 The Applicant subsequently completed the form which was provided to Ms YH by Ms ET.20

[24] On Wednesday 5 February 2014, Ms YH was away because she was ill.

[25] On Thursday, 6 February 2014, Ms LI asked for a meeting with Ms ET and Ms YH at 3:00 PM and when that meeting took place she told Ms YH that she thought she had been untruthful in the first conversation on 4 February 2014. 21 Later that day, Ms LI told Ms YH that a verbal warning would be issued at a meeting to be held on 7 February 2014 and that she could bring a support person if she wished, and arrangements were made for such a meeting.22

[26] Early on the morning of Friday, 7 February 2014 Ms LI was notified that Ms YH had injured her back in a fall and was lying on the ground outside the toddler room. Ms LI went to assist. Even though Ms YH asked for Ms LI to pick her up off the ground, Ms LI refused because she was not trained to pick her up, and instead insisted on calling an ambulance, which was done. Following the incident Ms YH was absent from work as a result of the injury between 7 and 17 February. Ms YH made a workers’ compensation claim, for which weekly compensation payments were made for a period. 23

[27] As a result of the incident on 7 February, the meeting between the Centre and Ms YH scheduled for that day to issue a verbal warning did not take place and was postponed to 21 February 2014. 24

[28] Ms YH returned to work on Monday, 17 February 2014. In the course of that day, Mr LI was informed by Ms ET that Ms YH had applied the Centre’s communally used sunscreen to a child who is required to use his own sunscreen for reason of skin sensitivities. Ms LI’s witness statement records the following interaction;

“Ms [ET] told me that the child had attempted to tell the Applicant that he had his sunscreen, but the Applicant had not listened. Ms [ET] said that she had been advised of this incident by Ms [CH].

...

I directed Ms [ET]s to immediately bring the Applicant to the Planning Room to discuss the incident. When Ms [ET] returned with the Applicant, I explained to the Applicant how important it was to apply the correct sunscreen to each child. The Applicant responded that her back had been hurting. I said that if the Applicant’s injury caused difficulties in applying sunscreen, she should inform her Room Leader, Ms [ET]. I explained that I had been told that the child tried to tell her he had special sunscreen, and she had not paid attention. I directed the Applicant to ask in future if she was not sure which sunscreen should be applied. In concluding this discussion I said to the Applicant that with her experience and Diploma in Early Childhood Education, I expected more from her. I requested that she complete an Incident Report, which she provided to me shortly afterwards. Attached and marked “LI-8” is a copy of the first Incident Report in relation to the sunscreen incident which the Applicant provided to me. I did not consider the Applicant had provided a faithful account of the incident in this Incident Report, and consequently requested that she fill in a new one. Attached and marked “LI-9” is a copy of the second Incident Report which the Applicant provided to me in relation to the sunscreen incident. The Applicant alleges in her witness statement at paragraph 55 that I spoke to the Applicant in a “very condescending and aggressive manner”. I deny that I did so, or that 1 would behave in an unprofessional manner in the course of disciplining an employee.” 25

[29] Ms YH did not attend for work between 18 February and 16 March 2014, for reason of illness. 26

[30] The rescheduled meeting relating to issuing a verbal warning to Ms YH took place on Friday 21 February 2014. A committee of management member was there as an independent facilitator, to whom Ms YH made a complaint about Ms ET, which was initially done privately and later conveyed to Ms LI.

[31] The work performance aspect of the meeting discussed not only the steps to the change table but also other aspects of Ms YH’s performance including her “attitude towards [Ms ET] and need to have regard towards other staff”. 27 Ms YH was provided with a letter of warning.28 The letter initially provided to Ms YH was incorrectly dated and referred to the disciplinary meeting being held on 5 February.29 At least the error concerning the incorrect date of the meeting was noted and a handwritten alteration about that was made on the letter.30

[32] After the work performance part of the meeting, the committee member provided Ms LI with a copy of a letter given to her by Ms YH which outlined a number of workplace bullying allegations against Ms ET from 2010 onwards. The committee member told both Ms YH and Ms LI there would be an investigation into the allegations. The committee member in attendance at the meeting and another, both of whom have human resource management experience, later investigated the complaints made by Ms YH and concluded that the allegations she made were unsubstantiated, which was advised in writing to Ms YH in a document mailed to her on 7 March 2014. 31 Initially Ms YH claimed that the investigation report was not provided to her at the time, or at any time before the filing of documents for the determinative conference in this matter,32 however she conceded in cross-examination that she had received correspondence about the subject at the beginning of March.33

[33] Ms YH appealed against the warning to the Committee of Management in accordance with the Centre’s disputes procedure on 28 February 2014. 34

[34] Ms YH returned to work on 17 March 2014. She claims that between 28 February 2014 and 28 March 2014 she chased the Centre a few times for a response to the bullying complaints and an appeal about the warning but no response was received, however the proposition that she received no response about an appeal over the issuance of the warning is contradicted by her own statement;

“Between 28/02/2014 and 28/03/2014, I had chased [the Centre] a few times for the response to my bullying complaints and warning appeal (see Annexure “[YH] 7”, and Annexure “[YH] 8”). There were also emails coming from [the Centre] to me about other matters, but none of them addressed my bullying complaints or appeal. I went back to work on 17/03/2014, but no one had mentioned my appeal and complaint. I felt more stressful. Then suddenly, on 28/03/2014, I received an email with two letters attached. One letter dated 03/03/2014 said my appeal had no ground, and the other letter dated 07/03/2014 said that my bullying complaints were not substantiated (see Annexure “[YH] 9”).

In a letter dated 3 March 2014 sent to me by the Committee of Management on 28 March 2014 via email, I was informed that my appeal had no grounds. I noted that in the letter it is said that “....the verbal warning was given to you ......most importantly in response to your failure to appropriately store the timber steps after you had changed a child’s nappy (Safety Breach)”. This is totally different from any of the reasons listed on the actual original warning letter where the nearest item listed is that I refused to remove the wooden steps. “Failure” and “refusal” are totally different in nature.” 35 (emphasis added)

[35] Ms YH’s Application for an Order to Stop Bullying was made to the Fair Work Commission on 27 March 2014.

[36] On certain critical matters, Ms YH’s evidence was unclear, evasive or self-serving and on one significant matter, it is unable to be accepted.

[37] Exhibit A6 purports to be a second written warning letter from the Centre to Ms YH. Her evidence is that she received this in the mail on 12 March 2014 36 and that it was in an envelope tendered into evidence. The envelope is hand-addressed to Ms YH’s home address, and on the front is an Australia Post date stamp of 11 March 2014. On the rear of the envelope is stamped the sender’s return address details, being those of the Centre. On the front, Ms YH wrote “received letter on 12th March 2014”.37 Her oral evidence is that the letter was posted to her in an envelope she retained and that she “took the letter from the letterbox, and then I put the letter on the table, and then my husband then told me what had happened”.38 Her evidence is that the letter contained in the envelope was dated 21 February 2014 and contains the words “Re second warning”. 39 She felt the letter was a retaliation and felt devastated to receive it.40

[38] The letter that comprises Exhibit A6 is dated 21 February 2014, is on the Centre’s letterhead and contains Ms LI’s signature block, but is unsigned.

[39] The provenance of the letter is disputed, with the evidence that I prefer confirming that the letter was only ever in draft form and it was never sent directly on the authority of the Centre or Ms LI, its Director, to Ms YH.

[40] I unreservedly accept the evidence of Ms LI that she did not send it to Ms YH. 41 The balance of probabilities suggests that the letter came into Ms YH’s possession as a result of the Centre satisfying a request from a person acting on behalf of QBE, the Centre’s workers compensation insurer, for copies of all documents pertaining to Ms YH’s employment in order that it be able to undertake the work it is required to do under Victoria’s workers’ compensation system in considering Ms YH’s claim for workers’ compensation payments.

[41] The documents provided to QBE by the Centre were in turn provided, it appears, to the Applicant and her husband, who in turn, on 4 September, sought to have certain parts of the QBE documents brought within the Applicant’s case. This is consistent with the Centre’s submission on the subject. 42

[42] Ms YH returned to work briefly on Monday, 17 March 2014 with her duties modified due to her back injury and then left the workplace after only five hours and has not been back to work since. 43 However there is no evidence from Ms YH that she ever queried with Ms LI or any member of the Committee of Management as to why the second warning letter had been sent. This is in sharp distinction with the other occasions on which the Centre took, or intimated a desire to take, disciplinary action. On those other occasions Ms YH utilised the avenues available to her to challenge what had been done. The purported second warning letter itself advises the reader, as does the first warning from early February, that;

“You have the right to appeal against this decision, in writing, to The Committee Of Management, [the Centre] within five working days of receiving this letter.” 44

[43] No such appeal was made by Ms YH.

[44] It is also the case that Ms YH’s outline of submissions and first witness statement do not deal with the issuing by the Centre of a second warning letter, whereas they deal extensively with the issue of the letter in early February 2014. Ms YH’s supplementary witness statement refers extensively to the early February warning letter and makes only a single, short reference to one being received on 21 February. 45 The Applicant’s submissions and initial witness statements were filed in the Commission on 23 July 2014, and the supplementary material, including a reply witness statement of the Applicant was filed in the Commission on 29 August 2014. The Applicant’s husband sought to rely on some of the QBE documents, including the purported second warning, on 4 September 2014.

[45] Ms LI’s evidence is that the purported second warning letter was never finalised. She recalled the following conversation on the subject between her and the member of the Committee of Management who had been in attendance in the disciplinary meeting on 21 February;

“MR TRACEY: When was it proposed to give that to Ms [YH]?

THE WITNESS: On the 21st, when we were meeting on the 21st, but I’d spoken to [Ms SAC] prior to that meeting and she said as we had not dealt with the issue of the first verbal warning, because [Ms YH] had not been at work that this was not appropriate so that was never produced.” 46

[46] In addition, Ms LI is adamant that not only was it inappropriate to provide the letter to Ms YH for the reason above, but also that she would never “send a warning in the post for a start, it would always be discussed with whoever the staff member was”. 47

[47] Having considered all the evidence given on this aspect of the proceedings, I am satisfied that the Applicant’s evidence about receiving the purported second warning letter is not consistent with the overall evidence and that no such letter was sent to her. I am satisfied that on the balance of probabilities the draft second warning letter was provided to QBE after it being provided to their investigation agent by the Centre, and that in turn QBE provided the document to Ms YH and her husband. I find that, on the balance of probabilities, the document was not provided to Ms YH or her husband until August 2014.

[48] I am unable to accept any part of Ms YH’s evidence about how she came to have a copy of the correspondence and view her evidence in this respect as lacking credibility. This in turn reduces the weight that should be given by me to the remainder of the evidence she has given in these proceedings, where that evidence is in dispute with other witnesses. I have had regard to the possibility that, in a complaint about workplace bullying, correspondence of this type could conceivably be either prepared or transmitted as part of the bullying behaviour, and done with the intention of deliberately causing distress the person to whom it is sent. Such possibilities however do not accord with the other evidence given, whether by Ms YH or by the Centre’s witnesses.

[49] Even if I had not made these findings of credit and weight, I would otherwise find against the Applicant on other important parts of her evidence and how it relates to the statutory criteria for a finding that a worker has been bullied at work.

WHETHER AN INDIVIDUAL OR GROUP OF INDIVIDUALS HAVE BEHAVED UNREASONABLY TOWARDS MS YH WHILE SHE WAS AT WORK

[50] There are several possible ranges of behaviour for characterisation as repeated unreasonable behaviour. For the purposes of this decision, I categorise those into two broad groups; firstly the events in 2010 and 2011, and secondly, the events of 2014.

[51] In relation to the events of 2010 and 2011, the evidence to be taken account of is largely that of Ms YH and Ms ET. Ms YH’s evidence of this period is that on several occasions Ms ET asked her inappropriate questions (for example about what happened in a car with a co-worker and whether she was going to a social function) or was rude or inappropriately firm in her communication with her (for example about service of food to the children or work to be performed at a children’s Christmas party). I am invited to form the view that these communications were unreasonable. Ms ET’s evidence either denies the allegations, makes no direct response, or puts forward that Ms YH’s own communication was aggressive and angry. 48

[52] The evidence rises to the point that the two probably did not like each other, and may even have been mutually hostile toward each other, but not much further. Ms ET appears to have had little tolerance for Ms YH at the time (which is also evident in what happened in 2014), and that feeling appears to have been reciprocated by Ms YH. Such findings are consistent with those contained within the Centre’s 2014 investigation of Ms YH’s bullying claims, made to Ms SAC, a member of the Centre’s Committee of Management with human resource management expertise. The investigation was carried out by Ms SAC and another member of the Committee of Management with human resource management expertise, and they reported a history of interpersonal conflict between the two between 2010 and 2012, but that the history did not amount to bullying. 49

[53] I concur with that finding.

[54] The available evidence on the matters that arose in 2010 and 2011 likely confirms mutual failings. Ms YH was, in all probability, difficult to supervise and prone to avoid unpleasant or undesirable tasks. She may well have seemed angry to Ms ET. Ms ET was, in all probability, quick to express herself with criticism or with an angry voice or body language.

[55] Notwithstanding these apparent failings, the conduct of Ms ET over the period of 2010 - 2011 does not amount to unreasonable behaviour within the meaning of Part 6-4B of the Act. At this distance in time, and with this evidence, I am unable to determine who started the poor behaviour, and am unable to discern that it was unreasonable behaviour, let alone repeated unreasonable behaviour with a risk to health and safety.

[56] Necessarily, human behaviour in the workplace is an interaction between two or more people. While workplace behaviour is often of a transactional or collaborative nature for positive effect, it is not always so; in many instances the way people behave will depend on how people behave to them.

[57] Apposite to this, and within the context of an unfair dismissal application in which an employee was dismissed for alleged workplace bullying, Commissioner Cloghan passed comment that;

[73] While the Commission does not and should not endorse the view that “anything goes” at the workplace, it is also important not to confirm as bullying and gross misconduct behaviour, as in this case, which is not pursued with any vigour and relates to incidents which occurred some time ago. In my view, the Commission should guard against creating a workplace environment of excessive sensitivity to every misplaced word or conduct. The workplace comprises of persons of different ages, workplace experience and personalities - not divine angels. Employers are required to pursue inappropriate behaviour but need to be mindful that every employee who claims to have been hurt, embarrassed or humiliated does not automatically mean the offending employee is “guilty of bullying” and “gross misconduct”. 50

[58] The Commission’s consideration of “unreasonable behaviour” imports an objective analysis. Would an independent observer of what happened consider the behaviour of Ms ET, in the events complained of by Ms YH, to be unreasonable?

[59] While there is insufficient evidence to make findings about whether Ms ET questioned Ms YH inappropriately about another employee, the other matters complained of by Ms YH in the period 2010 - 2011 go to the manner in which Ms ET communicated with Ms YH, and in particular, in relation to work allocation problems perceived by either. The behaviours in that period are sufficiently connected as to allow them to be viewed as repeated. 51 The evidence in relation to those matters would allow that Ms ET may well have been upset, exhibited intolerance or low level anger.

[60] While that is obviously undesirable, and especially so within a community based child-care centre, her behaviour does not rise to the level of being unreasonable behaviour within the meaning of s.789FD(1) of the Act.

[61] For the purposes of completeness, neither do I find that the behaviour created a risk to health or safety. It was over a period of some considerable time, and the evidence does not support there was a possibility of danger to health and safety, or where it related to supervision of Ms YH, was reasonable management action, reasonably taken. In a small workplace such as the Centre, there is no question that an apprehension of an employee not doing work considered important to do, or of someone considered to have not met the required standards of child supervision, must have those matters raised with them. Perhaps the interactions with Ms YH could have been undertaken better, however that is not the test which must be applied; rather the test is whether the management action was reasonable to be taken, and whether it was taken reasonably. 52

[62] Ms YH’s evidence on these matters and their characterisation as bullying behaviours amounts to an ex post facto analysis of events that were either unexceptional at the time, or the product of low-level animus between her and Ms ET.

[63] The evidence does not lead to a finding that the matters referenced by Ms YH in the time before 2014 were either repeated unreasonable behaviours, or that objectively they created a risk to health and safety.

[64] Consideration of the meaning of “unreasonable behaviour” was given by Commissioner Roe in The Applicant v General Manager and Company C. 53 In that matter, and in the context of discussion about what constitutes reasonable management action, the Commission properly distinguished between an otherwise poor or angry reaction by a manager and that which is unreasonable behaviour;

“[65] However, when considered in the context of the whole meeting and the overall situation I am not satisfied that the way in which the General Manager opened the meeting on 30 October was unreasonable behaviour. This part of the meeting on the Applicant’s own evidence lasted only a matter of seconds. It is to be expected that people, including managers, will from time to time get upset and angry and will express that upset and anger. It was reasonable management action in all of the circumstances for the General Manager to forcefully communicate in both words and body language that the way in which the Applicant was interacting with him was unacceptable and that it could not continue. I accept that if this behaviour was then reinforced by repeated similar behaviour then the behaviour at the October 30 meeting should be considered in a different light and contribute to a finding of unreasonable or bullying behaviour.

[66] I agree with the Respondent that determination of whether or not behaviour is unreasonable must be done objectively. What was known or should reasonably be known about the situation of particular individuals, including their physical and emotional situation, is part of the objective circumstances. However, just because a person reacts badly to behaviour or perceives behaviour in a particular way does not necessarily make it unreasonable. The General Manager had no reason on 30 October to believe that the Applicant was suffering from any illness or was particularly vulnerable”. 54

[65] The 2014 events are referred to in detail above. They could be characterised in either of two ways. From the perspective of the Centre, the events could be seen as an endeavour to raise with Ms YH two principal concerns - one on 4 February when she is alleged to have left steps out in the toddler change room; and the second on 17 February when she is alleged to have applied the incorrect sunscreen to a child. From Ms YH’s perspective, the events could be seen as a campaign by Ms ET and possibly Ms LI to find fault in what Ms YH did and to use those faults to either humiliate her or have her leave the Centre’s employment, however the evidence does not support this latter possibility.

[66] Taking into account all of the evidence and submissions in this matter, I consider that the Centre and Ms ET reasonably considered it necessary and appropriate to counsel Ms YH about both 2014 episodes - the allegation from 4 February when Ms YH is alleged to have left steps out in the change room; and the allegation from 17 February when she is alleged to have applied the incorrect sunscreen to a child. Each decision was reasonably founded. There was sufficient information available to Ms LI to take the decision that, at the least, there should be a conversation with Ms YH, perhaps with a disciplinary purpose.

[67] In relation to the allegations arising from the incident on 4 February 2014 when steps were left out in the toddler change room;

• Ms ET formed the view that Ms YH had caused a safety risk and asked her to go the Director’s office. There was nothing untoward either in being asked to do that, or in what was then said between Ms YH and Ms LI;



• Upon return to the 3 Year Old Room, Ms ET formed the view that Ms YH may not have told Ms LI everything she should have and asked her to fill in an Incident Report Form. Formation of that view was reasonably open to her and there was nothing untoward in the request that Ms YH should fill in an Incident Report Form.



• Following being asked to fill in the Incident Report Form, Ms YH spoke to Ms LI again and Ms LI told her that;

“Ms [ET] had advised me that this incident was not the first time that she had left the wooden step ladder at the change table, and based on my discussion with Ms [ET] understood that she had lied to me about whether this was the first incident.”  55

• For the reason that I do not accept Ms YH’s evidence to be generally credible, I do not accept Ms YH’s evidence that Ms LI did not ask her “is this the first time that you’ve left the steps?” 56 The most favourable characterisation for Ms YH of her failure to inform Ms LI when asked the question is that she might have misunderstood what was asked in the first conversation. Ms ET’s evidence was that the earlier occasion was only the previous week. 57 Given the proximity of the two dates, it cannot reasonably be that she forgot.



• The decision to require Ms YH to attend a disciplinary meeting and to issue her with a warning, is also appropriate, in the context of the evidence, and the duties held by the Centre to children and their parents. The way in which this decision was communicated to Ms YH was also reasonable, although for the reasons noted below, the way in which it was communicated could have been done better and more neutrally.

[68] In relation to the allegation from 17 February 2014, regarding the application of the incorrect sunscreen to a child;

• The likelihood of the incorrect sunscreen having been applied to a child was brought to Ms ET’s attention by another employee, Ms CH, and she asked Ms YH to complete an Incident Report Form. Once done, Ms ET formed the view that this was incomplete, or not a truthful account of what had happened and she informed Ms LI of this. On the basis of what had been told to them by Ms CH, it was not unreasonable for either to form such a view.



• When questioned about the incident by Ms LI, Ms YH avoided providing an accurate account of the incident and instead said that her back had been hurting. 58 She neither denied the allegations outright or claimed them as untrue; instead she said she did not know how to fill out the report correctly.59



• The decision by Ms LI to consider issuing a second warning to Ms YH, but which was never implemented, was not proceeded with after discussions between Ms LI and Ms SAC, a member of the Centre’s Committee of Management, who counselled against issuing the second warning. 60 In context, this was wise advice that Ms LI needed to heed; to issue the warning only on the basis of what she then knew, and without dispassionate investigation, or an opportunity for Ms YH to respond to the complaint may well have been an unreasonable action by the Centre or Ms LI personally.

[69] I therefore find that the 2014 matters are not examples of unreasonable behaviour to Ms YH. Neither did the behaviours exhibited therein create a risk to health and safety. All such behaviours are reasonable management action carried out in a reasonable manner.

[70] In making this finding, I have taken into account that the way in which Ms LI communicated with, or about, Ms YH on 4 and 6 February and subsequently was very heavy-handed and insufficiently allowing of the possibility that the matters reported to her by Ms ET might be wrong. Her communications could be argued to be inconsistent with the Centre’s Workplace Performance Policy, which aims for the creation of “a fair and efficient environment for all employees to work in”, 61 or its Code of Conduct, which undertakes that “we will not ... jump to conclusions ...” or “... use oppressive behaviour or language with people ...”.62 The following are examples of the type of communications I have taken into account in forming this view;

• When it became apparent to her that Ms YH might not have reported to her an earlier occasion on which she left steps out, she put to Ms YH that “Ms [ET] understood that she had lied to me about whether this was the first incident”, 63 which Ms YH heard as Ms LI “said to me that I had lied to her about whether this was the first incident”.64 Ms LI’s witness statement records about this exchange;

“I said to the Applicant that I considered she had been untruthful when she told me that the incident on 4 February 2014 was the first time she had left the wooden step ladder at the change table. I told her that I felt her response was intended to mislead me to avoid completing an Incident Report.” 65 (emphasis added)

Even making allowances for the conversion of verbatim language into the formalised words of a witness statement, these are strong statements, apparently conclusions reached without dispassionate inquiry of the Applicant and not connected with what might be the usual prior polite managerial enquiry of “might you have forgotten?” or “can you explain why you didn’t mention ...?” about the first incident, which on Ms ET’s evidence was only the previous week. 66

• The warning letter of 6 February repeats this very strong use of language, 67 also without a corresponding dispassionate inquiry of Ms YH about whether the matters said to be lies might be mistakes, or a misunderstanding about the question being asked;



• When Ms LI needed to write to QBE on 24 February 2014 about Ms YH’s workers’ compensation Ms LI reported not just a query about the veracity of the compensability of the claim, but also relates, very strongly in the context of a report to an insurer, and arguably beyond what might be relevant to tell them, that;

“As way of background, [Ms YH] failed to fulfil the Inherent requirements of her role as Level 4.1 Educator whereby she left the stairs at the toddler change bench unattended on February 4, 2014. [Ms YH]’s action on this day is a serve (sic) breach of our centre policy and the OH&S requirements involving child supervision. Due to this breach [Ms YH] was informed and was notified that a verbal warning would take place on February 6, 2014”. 68

[71] Ms LI’s oral evidence was no less uncompromising. The conclusion based on her evidence is that while she might believe that Ms YH lied, she appears to have arrived at such a belief without the benefit of reasoned inquiry or dispassionate conversation with the Applicant. At the least, these were conclusions she reached without the benefit of the Applicant’s response to Ms ET’s complaints.

[72] In context, I find that these failings on Ms LI’s part do not make unreasonable her decision to counsel Ms YH about her performance. In the context of the Centre’s duties to children and parents, it would have been unreasonable for her not to pursue the matters. Neither were the communications to Ms YH carried out in an objectively unreasonable manner, or in a way that would be likely to create a risk to health and safety.

[73] However, my finding may have been different had Ms LI not heeded Ms SAC’s advice and actually provided the second warning letter to Ms YH in the way it is drafted. At that point, the argument that Ms LI’s actions might not be reasonable would become an issue of significance if it could also be found there had been a failure to accord Ms YH fair procedure prior to deciding a warning would be provided.

[74] Section 789FF of the Act requires the Commission take into account certain matters in considering the terms of an order to stop bullying, including the outcomes of a final or interim investigation of the matter before the Commission. While it is unnecessary for me to do so in this decision, for the reason that orders to stop bullying are not contemplated by me, I note that in forming my views I have taken into account that the Centre investigated the bullying complaint made by Ms YH in a report provided to the Centre in March 2014. 69

[75] The report examined incidents in 2010 and found that, because of the age of the matters “we do not believe it is reasonable to investigate these issues”. 70 With reference to complaints about incidents between 2010 and 2014, the investigation report found that “the incidents between 2010 and 2012 amount to interpersonal conflicts and/or workplace gossip and do not amount to bullying”.71 Finally, in relation to the incidents of 6 and 17 February 2014, the investigation report found that the complaints about those incidents cannot be substantiated.72

[76] I broadly concur with the findings made in the investigation report, while noting two slight reservations. Firstly, I do not concur with the reference in the investigation report to the age of the matters meaning it is not reasonable to investigate the issues. Bullying can extend over a significant period of time, and whether the issue is relevant for consideration by the Commission will be a matter of evidence. Secondly, I refer to the comment that the 2010 - 2012 incidents “amount to interpersonal conflicts and/or workplace gossip”. Plainly, in concept, some interpersonal conflicts or workplace gossip can be bullying behaviours, although the ones exhibited in this matter are not.

[77] The investigation report also concludes with the recommendation that;

“Having regard to these matters, our view is that having a formal investigation meeting with [Ms ET] is not required. We do recommend however that:

• You ensure that [Ms ET] is aware of this complaint and the outcome



• [Ms ET] be reminded of the importance of appropriate communications with staff at all times”. 73

[78] Again, I concur with these recommendations, although I would add a recommendation to the Committee of Management that it take steps to encourage its Director, Ms LI to adopt and follow a performance management process that ensures early judgements about poor, or less than satisfactory, behaviour are not reached by her without allowing the employee to whom she is talking to understand the nature of the complaint and to then respond. I have referred above to her communications to and about the Applicant of being heavy-handed or insufficiently allowing of alternative views. It would assist the Centre’s achievement of its objectives of being “a fair and efficient environment for all employees to work in” for the Committee of Management to consider the provision of training around supervisory communication styles and methods.

[79] As a result of the findings I have made, it follows that I cannot find Ms YH has been bullied at work. An Order dismissing Ms YH’s application is issued at the same time as this decision.

COMMISSIONER

Appearances:

Mr YH on behalf of the Applicant

Mr J Tracey (of Counsel) on behalf of the Respondent

Hearing details:

2014.

Melbourne:

September 10, 11 and 12; final written submissions received on 27 October 2014

 1   Transcript, PN 2933

 2   [2014] FWC 1395

 3   See Ms SB [2014] FWC 2104, at [43]

 4   Explanatory Memorandum to the Fair Work Amendment Bill 2013, p.29

 5   Ms SB [2014] FWC 2104

 6   Exhibit A4, para 2

 7   Ibid, paras 3 - 4

 8   Ibid, para 5

 9   See for example, Exhibit A1, paras 7 - 13

 10   Applicant’s Final Submissions, para 2

 11   Exhibit A4, para 11

 12   Exhibit R8, para 9

 13   Exhibit A4, para 13

 14   Ibid, para 14

 15   Exhibit R8, para 14

 16   Exhibit A4, para 19

 17   Exhibit R3, paras 18 – 19

 18   Ibid, para 24

 19   Ibid, para 25

 20   Ibid, para 26, and Attachment LI 5

 21   Exhibit R3, para 31

 22   Ibid, paras 38 – 39

 23   Ibid, paras 46 – 49

 24   Ibid, para 53

 25   Ibid, paras, 50 – 52

 26   Exhibit A4, para 59

 27   Exhibit R3, paragraph 55

 28   Ibid, Attachment LI-10

 29   Ibid, para 55

 30   Exhibit A4, para 62, Attachment [YH] X; Exhibit A5, para 26; Exhibit R3, para 55

 31   Exhibit R3, para 60, Attachments LI-11 and LI-12

 32   Exhibit A4, para 68

 33   Transcript, PN 1509 - 1512

 34   Exhibit A4, para 70

 35   Exhibit A4, paras 71 – 72

 36   Transcript, PN 548 – 553

 37   Transcript, PN 519

 38   Transcript, PN 226; see also PN 199 - 204; 224 - 277

 39   Transcript, PN 518 -525

 40   Transcript, PN 542 - 545

 41   Transcript, PN 2483 - 2498

 42   Respondent’s Final Submissions, para 18

 43   Exhibit A4, para 74 – 75

 44   Exhibit A6

 45   Exhibit A5, para 7

 46   Transcript, PN 2481 – 2482

 47   Transcript, PN 2492

 48   Transcript, PN 3781

 49   Exhibit R7, attachment SAC- 2, p8

 50   Mrs Karen Harris v WorkPac Pty Ltd[2013] FWC 4111, at [73]

 51   See Ms Kathleen McInnes [2014] FWC 1395, at [41]

 52   Ms SB [2014] FWC 2104, at [51] and [53]

 53   [2014] FWC 3940

 54   Ibid, at [65] - [66]

 55   Exhibit R3, para 25

 56   Exhibit A5, para 8

 57   Exhibit R8, para 33

 58   Exhibit R3, para 52

 59   Exhibit R8, attachment ET-5

 60   Transcript, PN 2481 - 2482

 61   Exhibit R3, Attachment LI-2

 62   Ibid, Attachment LI-3

 63   Exhibit R3, para 25

 64   Exhibit A5, para 9

 65   Exhibit R3, para 31

 66   Exhibit R8, para 33

 67   Exhibit R3, attachment LI10

 68   Exhibit MFI3, p1

 69   Exhibit R7, Attachment SAC-2

 70   Ibid, p.14

 71   Ibid, p.15

 72   Ibid

 73   Ibid

Printed by authority of the Commonwealth Government Printer

<Price code C, PR558803>