[2014] FWC 3839

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Mr Tao Sun
(AB2014/1067)

COMMISSIONER CLOGHAN

PERTH, 16 JUNE 2014

Application for an FWC order to stop bullying.

[1] On 19 February 2014, Mr Tao Sun (Mr Sun or Applicant) made application to the Fair Work Commission (Commission) for an order to stop bullying.

[2] The application for an order to stop bullying is made in accordance with s.789FC(1) of the Fair Work Act 2009 (FW Act).

[3] The application is for an order against Mr Achemedei of CITIC Pacific Mining Management Pty Ltd (Employer).

[4] The Employer, as the employer of the Applicant and the employee who is alleged to have carried out bullying, provided a response to Mr Sun’s application on 6 March 2014. The Employer denies that the actions alleged by Mr Sun constitute bullying pursuant to the FW Act, and in any event, they were reasonable management actions carried out in a reasonable manner.

[5] The application was referred to me on 12 March 2014 and I conducted a conference on 27 March 2014.

[6] At the conclusion of the conference, I made a written Recommendation to both parties which required a response by 4:00 pm on 1 April 2014. Mr Sun rejected the Recommendation on 31 March 2014. Accordingly, it is necessary to hear and determine Mr Sun’s allegations of workplace bullying by Mr Achemedei.

[7] At the hearing on 6 May 2014, Mr Sun represented and gave evidence of his behalf. The Employer was represented by Mr Jones, Senior Employee Relations Consultant, Chamber of Commerce and Industry and evidence given on behalf of the Employer by:

● Mr Achemedei, State General Manager-Information Systems; and
● Ms Geary, Manager Human Resources.

[8] At the conclusion of the hearing, I dismissed Mr Sun’s application. These are the reasons for dismissing the application.

RELEVANT BACKGROUND

[9] Mr Sun commenced employment with the Employer as an Application Developer on 2 April 2012.

[10] In or around July 2013, the Employer appointed Mr Achemedei to the position of General Manager, Information Systems.

[11] On 7 November 2013, the Applicant and his direct manager, Mr Liu, Manager, Information Systems Delivery, conducted Mr Sun’s 2013 performance appraisal.

[12] The first stage of the performance appraisal is for the employee to self rate against their performance plan.

[13] While Mr Liu queried some of the Applicant’s self ratings, it is not in dispute that when the performance appraisal was completed on 7 November 2013, Mr Sun received a rating of “Meets Requirements” for each objective in the performance appraisal.

[14] On 20 December 2013, Mr Sun collapsed at work and was taken to Royal Perth Hospital.

[15] On 13 January 2014, Mr Sun attended a meeting with Ms Cozens, the Employer’s Superintendent, Health and Injury Management, Ms Geary and Mr Achemedei to discuss his return to work. During the meeting, Mr Sun alleged that his collapse at work on 20 December 2013 was a work related “attack”. Ms Geary requested Mr Sun to submit a written complaint.

[16] On 17 January 2014, Mr Sun emailed Ms Geary relevantly as follows:

“...one of the critical reasons for my collapse is described as below.

After read[ing] the mail regarding to my PPMS [performance appraisal], I got some idea that my PPMS weighting is changed, but there is isn’t any clarification before change.

Based on the PPMS procedure, I think the behaviour violates the company’s procedure.

Could you please advise why there is anyone who can easily stay out of company’s procedure meanwhile, whether the behaviour is fair and supported in CPM [Employer]”. 1 (my emphasis)

[17] Simply put, Mr Sun is alleging that an unnamed person changed the weightings on his performance appraisal. In support of his allegation, Mr Sun refers to unspecified “mail” (First Complaint).

[18] At this time, it is useful to recall that Mr Sun collapsed at work on 20 December 2013. The work related reasons for the collapse, as set out in his evidence, are that on 20 December 2013 he received notification of his annual bonus and, on the same day, accessed Mr Achemedei’s electronic diary and saw the “mail” referred to in the previous paragraph.

[19] Mr Achemedei’s electronic diary contained an email to Mr Liu regarding a meeting scheduled between them for 3 January 2014. The email relevantly reads:

“...For us to discuss next steps regarding David Sun. It is clear to me based on my own experience with David and informal feedback from others that the fit isn’t a good one for various reasons.

As his manager I’d like you to give some thought wrt how this is to be addressed and brief me on your proposed course of action.” 2

[20] Stripping away the opaqueness in the First Complaint, Mr Sun is alleging that Mr Achemedei changed his performance appraisal which led to him receiving an annual bonus less than he expected. Secondly, that the supporting evidence for Mr Achemedei interfering in Mr Sun’s performance appraisal is contained in the email from Mr Achemedei to Mr Liu in the electronic diary.

[21] On 17 January 2014, the Employer acknowledged Mr Sun’s First Complaint and advised him that it would formerly investigate the complaint in accordance with the Employer’s Fairness Review Policy. The correspondence of 17 January 2014 briefly outlines the process of the investigation and a proposed meeting on 21 January 2014 in which Ms Geary and Mr Liu would attend. Mr Sun responded to the Employer’s correspondence requesting that Mr Achemedei also attend the meeting.

[22] Mr Sun returned to full-time work without any restrictions to his duties on 20 January 2014.

[23] At the meeting on 21 January 2014, Mr Sun named Mr Achemedei as the person who changed Mr Sun’s performance appraisal. Mr Sun conceded at the meeting that there was nothing in the email to support or suggest that Mr Achemedei had changed Mr Sun’s ratings to his performance appraisal. Further, Mr Sun could not give an explanation as to how he obtained access to Mr Achemedei’s and Mr Liu’s electronic diary to become aware of the information contained in the email.

[24] Mr Sun sought, as an outcome of his First Complaint, that Mr Achemedei undergo further training as a result of “violation” of the Employer’s policy. On 28 January 2014, the Employer formally advised Mr Sun that the investigation found that his allegation was not substantiated. In the Employer’s correspondence, it referred to meetings in which Mr Sun attended on 21 January 2014 and a further meeting with Ms Geary and Mr Yau, Executive Director Finance on 24 January 2014. 3

[25] On 13 February 2014, Mr Achemedei, Mr Liu and Mr Sun had a meeting to discuss Mr Sun’s role and how he carried out that role with respect to the Cloud Expression of Interest (Cloud EOI).

[26] On 14 February 2014, Mr Sun made a further complaint. The essence of Mr Sun’s complaint is that the meeting on 13 February 2014 was a further review of his 2013 performance appraisal and that Mr Achemedei informed him, as General Manager, he can allocate employees to undertake tasks irrespective of whether they are within the employee’s skills or position description (PD). Finally, that Mr Achemedei advised him that he is authorised to make such decisions and monitor those tasks and his expectations (Second Complaint). 4

[27] Mr Sun enquired in his Second Complaint whether Human Resources support Mr Achemedei’s management “manner” and why his 2013 performance review should be reviewed, “after all the processes have been finalised and closed”. 5

[28] Later on 14 February 2014, Mr Sun forwarded an email to Mr Achemedei, Mr Liu and two other employees setting out what he considers “captures” the major points of the meeting on 13 February 2014. At point 4 in the email, he states:

“...when I figure out some statements from Ray [Mr Achemedei] are unlawful to Fair Work Act 2009, he strongly confirmed he is authorised to do that”. 6

[29] Mr Liu also provided draft minutes of the meeting on 13 February 2014.

[30] On 19 February 2014, Mr Sun makes application to the Commission seeking an order against Mr Achemedei for alleged bullying.

[31] On 7 March 2014, Ms Geary advised Mr Sun that the Employer had completed its inquiries into Mr Sun’s allegation that he had been bullied by Mr Achemedei and found it was unsubstantiated.

[32] Mr Sun’s application was referred to me on 12 March 2014.

RELEVANT LEGISLATIVE FRAMEWORK

[33] Section 789FC of the FW Act relevantly provides:

“(1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.

(2) For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force.

(3) ...”

[34] Section 789FD of the FW Act relevantly provides:

“(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) ...”

[35] Section 789FF of the FW Act relevantly provides:

“(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) ...”

CONSIDERATION

First Complaint

[36] Part 6-4B-Workers bullied at work of the FW Act, is the Government’s legislative response to the House of Representatives Standing Committee on Education and Employment Inquiry report “Workplace Bullying, We just want it to stop” (HoR Report).

[37] At paragraph 1.68 of the HoR Report, the authors refer to a submission by the Law Institute of Victoria and quote the following:

“It is vitally important for employers and employees to understand what constitutes bullying, what does not constitute bullying, and who has duties in relation to bullying in the workplace.” (my emphasis)

[38] In the First Complaint, Mr Sun alleges that Mr Achemedei (Mr Sun’s Manager one removed) changed his performance appraisal from “meets requirements” to “meets some requirements”. I find that there is no evidence for such a complaint.

[39] As part of the Employer’s investigation, Mr Achemedei states in the meeting on 21 January 2014 in clear and unambiguous terms to Mr Sun that he had not changed the ratings in his performance appraisal and showed him a copy of the performance appraisal on his personnel file. Mr Achemedei’s written evidence is that, “David [Mr Sun] refused to believe his ratings had not been changed”. 7

[40] What was the basis of Mr Sun’s complaint? That question can be answered in two parts. Firstly, Mr Sun’s annual bonus, which was connected to his performance appraisal was not as great as he expected. Secondly, the email attached to a meeting between Mr Achemedei and Mr Liu for 3 January 2014 states, among other matters, Mr Sun’s performance would be discussed.

[41] With respect to the annual bonus, there is no mention of such an entitlement in Mr Sun’s Offer of Employment or General Terms and Conditions of Employment. The advice to Mr Sun regarding his annual bonus is entitled “2013 Discretionary Bonus Payment”. The content refers to the discretionary nature of the payment and the need for confidentiality.

[42] In my view, unless it can be demonstrated that a discretionary bonus payment has been applied in a punitive manner as part of a course of conduct which falls within the meaning of workplace bullying, the Commission should be cautious of considering, of itself, a discretionary bonus as workplace bullying. It is a matter which should be left, as its name suggests, to the employer’s discretion.

[43] In general terms, the payment of a discretionary bonus is a matter for the Employer’s judgement. The belief by employees that they should have received a greater amount does not, of itself, in my view, constitute workplace bullying subject to what I have set out in the paragraph immediately above.

[44] The second aspect of why Mr Sun thought Mr Achemedei had changed his performance appraisal is the email attached to the meeting for 3 January 2014. Firstly, the discussion had not taken place when Mr Sun received his annual bonus. However, and more importantly, in my view, is the fact that Mr Sun’s actions in accessing the email were done without the permission of Mr Achemedei.

[45] Mr Sun’s evidence was less than convincing when asked in cross examination if he had permission to access Mr Achemedei’s electronic diary. I find that he did not have permission to access Mr Achemedei’s diary. This leads me to return to the submission by the Law Institute of Victoria regarding the duties of employees and employers.

[46] If an employee believes that they are being bullied at work, this does not mean that the normal duties and responsibilities of employees are no longer applicable. Because an employee believes that they are being bullied at work does not give him or her immunity from observing all the policies and practices expected in the workplace and in the employment relationship. An employee should not make an exception of themselves because they think they are being bullied at work. He or she should not engage in conduct which they would not be willing to have done to themselves. Mr Sun accessed details of a meeting between Mr Achemedei and Mr Liu without their permission - I am sure he would not have wished a third party, without his permission, to access his emails.

Second Complaint

[47] On 28 January 2014, the Employer advised Mr Sun that his First Complaint was unsubstantiated and no further action would be taken.

[48] Just over two weeks later, Mr Sun made a further complaint again involving Mr Achemedei.

[49] It is not in dispute that Mr Achemedei, Mr Liu and Mr Sun met on 13 February 2014. It is not in dispute that the topics discussed in the meeting included feedback from three (3) other managers on Mr Sun’s performance concerning the “execution of the Cloud EOI initiatives, and to talk more generally about his [Mr Sun] and CITIC’s [Employer] expectations going forward”. 8

[50] Mr Achemedei’s witness statement reads as follows:

“David reacted negatively to this feedback and suggested that the Cloud EOI initiative was not within his position description [PD] and he was not qualified to execute it.

I explained to David that I expected that it was reasonable for him to plan, manage and coordinate the Cloud EOI initiative, having regard to his role as Application Developer and his existing skills and competencies...

I also explained to David that, just because the Cloud EOI initiative was not expressly specified in his position description, this did not preclude me from asking him to take on a project that:

(a) I felt he was qualified to do (in this instance, using his analytical, problem solving, project management and communication skills to develop the Cloud EOI); and

(b) I considered [it] did not pose any risk from a health and safety perspective.

David continued to reiterate that the Cloud EOI initiative was not defined in his position description. David then produced CITIC’s Zero Tolerance of Harassment and Bullying policy. It appeared to me that David’s perception was that me asking him to complete a task that was not expressly referred to in his position description was bullying. At this point, I decided to terminate the meeting because it appeared to me that David had become upset.”

[51] Mr Sun described the meeting as a performance review meeting 9.

[52] Mr Sun’s “statement of facts” regarding the meeting is not too dissimilar. Mr Sun states, “Mr Achemedei shouldn’t review his performance which is out of scope according to his expectations and assumption of CV” 10.

[53] Mr Sun’s views regarding performance appraisal is best expressed by an answer which he gave in cross examination as follows:

“If subsequent to November 2013 [the date of the 2013 annual performance appraisal] management believed it needed to counsel your performance, do you accept or reject that they have the right to do so?---Reject.” 11

[54] Mr Sun further gave evidence that “every review action should be done in this review procedure and period” 12.

[55] Mr Sun was given the Cloud EOI task in September 2013. There are a number of facts in dispute in relation to the period between September 2013 and the meeting on 13 February 2014.

[56] With regard to the Second Complaint, a core element involves the difference of opinion between the Employer and Mr Sun as to whether Mr Sun was capable of carrying out the Cloud EOI task. Mr Achemedei's evidence is that Mr Sun’s curriculum vitae indicated that he was capable of carrying out the task. Mr Sun conceded in evidence that the Employer advised him that if he found himself in difficulties, the Employer would provide support. Mr Achemedei acknowledged in early email correspondence regarding the task that it was a “steep learning curve” for Mr Sun. In response, Mr Sun states, “thank you for your consideration and understanding...I will try my best to make it better”. 13

[57] Notwithstanding the Applicant being involved in the Cloud EOI task since September 2013, Mr Sun gave oral evidence:

“...when I said, "This job is out of my position description," and he said, "As head of department, I'm authorised to allocate any staff in the IFP department to do anything according to my experience and judgment and review their performance."

That's correct?---Yeah.

Even if you were correct in saying that Cloud EOI was outside of the scope of your work, your contract of employment allows Mr Achemedei to give you work outside of your scope, if you go back to the contract, clause 1, the first paragraph? ---Yeah.

...

All Mr Achemedei was doing, I put to you, was having a meeting with you to assess your performance as at 13 February 2014. Correct?---Yes, assess my performance on Cloud EOI.

...

MR JONES: He had a point of view, you had a point of view which was different, but all he was doing was assessing your performance as at 13 February 2014?---You mean he just assessed a task in 2013...” 14

[58] Despite Mr Sun’s oral evidence to the contrary, I find that Mr Achemedei did assist Mr Sun with the Cloud EOI task and there is documentary evidence to that effect.

[59] It is not uncommon for PDs to be couched in general terms and not contain each and every current or projected task to be undertaken. Mr Sun’s PD contains no mention of specific projects.

[60] Mr Sun’s questioning of his capability to carrying out the Cloud EOI task has to be considered within a broader context Mr Sun’s General Terms and Conditions of Employment which sets out that the Employer “may vary your duties and responsibilities at any time consistent with your role. However, you agree to work flexibly including to perform duties which are not consistent with Your Role, on the basis that for the majority of your duties and responsibilities will remain consistent with your Role (unless you agree otherwise)”. 15

[61] Mr Sun was critical of his boss for requiring him to do a task which he considered was beyond his skills and capabilities and consequently, accusing him of bullying. The validity of Mr Sun’s assertion that he was not capable of carrying out the Cloud EOI was not supported in Mr Achemedei’s view, by either his curriculum vitae, PD or his employment to date.

[62] It is not sustainable for employees to say that a task is beyond their skill level and if the Employer does not agree, allege that it is workplace bullying. Such a situation would be tantamount to the Commission endorsing a one sided self determining premise as bullying in the workplace.

[63] Finally, Mr Sun’s view that every review of his performance has to be done during the review period is plainly wrong. The fact that Mr Achemedei and Mr Liu met with Mr Sun on 13 February 2014 was reasonable management practice and not bullying in the workplace.

[64] Employers have to measure and monitor the quality and quantity of its resources, including human resources. If Mr Sun’s pay is wrong, he would want it fixed as a matter of urgency. In Mr Sun’s case, he was paid monthly so he audits and assesses the Employer’s payroll process each month. For employers, it is no different. To remain in business, they have to measure and monitor the performance of employees both in quantitative and qualitative terms. Such monitoring is not locked into a set review period or procedure - it is an ongoing process.

[65] Following, Mr Sun’s complaint, the Employer, on 7 March 2014, advised Mr Sun:

“As a result of the follow up discussions that the Company has had with Mr Liu and Mr Achemedei, the Company is satisfied that the meeting on 13 February 2014 was reasonable management action and that the request for you to coordinate and manage the Cloud EOI project was reasonable having regard to your role and your existing skills and competencies as an Application Developer.

Therefore, the investigation concluded that on balance, the allegations of bullying are unsubstantiated.” 16

[66] The factual background to this application, while over a relatively short period of time, produced a myriad of issues in which Mr Sun was not prepared to see an alternative point of view. Mr Sun could only construe the words and actions of others as supporting his allegations and any alternative prospective should be dismissed. The extent of his conviction that he was being bullied at work, led Mr Sun to produce in evidence, five voice recordings of meetings without the participants’ knowledge, and contrary to an express direction not to record the meetings.

[67] Without labouring the point, because an employee believes they are subject to workplace bullying, that belief does not authorise the employee to behave in any fashion they think appropriate. Adopting such a course of action is full of difficulties.

CONCLUSION

[68] From the application, conciliation conference and hearing, I am satisfied that, from his perspective, Mr Sun reasonably believed he was being bullied at work. There is no dispute that Mr Sun is a “worker” as provided for in s.789FC(2) of the FW Act.

[69] Relevantly, in accordance with s.789FD of the FW Act, a worker is bullied at work if an individual or group of individuals repeatedly behaves unreasonably towards the worker. This definition does not apply to reasonable management actions carried out in a reasonable manner.

[70] An aid in understanding the legislative provisions is the Explanatory Memorandum which provides:

“New section 789FD – When is a worker bullied at work?

107. New subsection 789FD(1) provides that a worker is bullied at work if, while the worker is engaged by a constitutionally-covered business, another individual, or group of individuals, repeatedly behaves unreasonably towards the worker, and that behaviour creates a risk to health and safety.
108. This definition reflects the definition of workplace bullying that was recommended in the Workplace Bullying ―We just want it to stop report. The Committee considered the existing definitions used by State, Territory and federal jurisdictions and expert evidence and concluded that there were three criteria that were most helpful in defining bullying behaviour – the behaviour has to be repeated, unreasonable and cause a risk to health and safety.


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.


111. The Committee also found that balanced against this definition is the need for managers to be able to manage their staff. New subsection 789FD(2) is included to clarify that reasonable management action when carried out in a reasonable manner will not result in a person being ‘bullied at work’.


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.” 17 

[71] The events which have given rise to this application by Mr Sun were management actions. With respect to the First Complaint, the alleged management action simply did not occur. The Second Complaint also involved management action by Mr Achemedei. I find that Mr Achemedei’s actions, when applying an objective test, were not bullying or unreasonable; they were reasonable and carried out in a reasonable manner.

[72] These are the reasons why I dismissed Mr Sun’s application for an order to stop alleged bullying by Mr Achemedei.

COMMISSIONER

Appearances:

T Sun, Applicant self represented.

D Jones of the CCIWA for the Respondent.

Hearing details:

2014:

Perth,

6 May.

 1   Exhibit R5 (2)

 2   Exhibit A3

 3   Exhibit R5 (9)

 4   Exhibit R5 (10)

 5   Exhibit R5 (10)

 6   Exhibit R5 (11)

 7   Exhibit R8

 8   Exhibit R8

 9   Transcript PN499

 10   Exhibit A (Z)

 11   Transcript PN253

 12   Transcript PN256

 13   Exhibit A5

 14   Transcript PN583-PN592

 15   Exhibit R5 (17)

 16   Exhibit R5 (16)

 17   Explanatory Memorandum to the Fair Work Amendment Bill 2013

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<Price code C, PR551873>