FWC 3940
FAIR WORK COMMISSION
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
General Manager and Company C
MELBOURNE, 17 JUNE 2014
Application for an FWC order to stop bullying - whether action complained of constitutes bullying.
 The Applicant has made an application for an order to stop bullying under Section 789FD of the Fair Work Act 2009 (the Act). The application alleges bullying conduct by another employee, the General Manager. The workplace concerned is conducted by the Applicant’s employer (the employer or Company C) which is a major national listed company. I will refer to the General Manager and the employer as the Respondents given that a common case was presented by them.
 The matter was the subject of unsuccessful conciliation before another member of the Fair Work Commission. The hearing of this matter occurred on 2 May 2014 and I provided the parties with the opportunity to make subsequent written submissions, the last of which was received on 6 June 2014. After hearing from the parties I decided that it was appropriate to protect the anonymity of the principal parties in this matter and also to limit public access to certain commercially sensitive information concerning the business of the employer.
 The Applicant represented herself at the hearing of this matter. After considering the matters specified in Section 596 of the Act I decided to grant permission for the employer and the General Manager to be represented by a lawyer. One matter I considered relevant was that the denial of permission would lead to delay in the hearing of the matter and the Applicant had expressed a strong desire for the matter to be finalised expeditiously. I was satisfied that the Applicant understandably found the process of preparing for and participating in the proceedings stressful. In circumstances where the Applicant alleged she was suffering from significant stress related illness as a result of the alleged bullying and where that illness had led to a significant and continuing period of absence under workers compensation provisions I considered that it was important to deal with the matter fairly but also as expeditiously as was possible. I considered that the efficient conduct of the matter was therefore enhanced by allowing representation.
 The parties agreed that given that the Applicant was not represented I should not draw any inference from the failure to put a matter to a witness where the evidence was in conflict and to assume unless otherwise stated that the person making the statement abides by their version of events as opposed to an alternative version put by another witness.
Background and the allegations
 The Applicant is a training manager responsible for the employer’s training business in Victoria. The Applicant is responsible for a team of seven or eight other employees including a number of trainers. From the commencement of her employment in December 2012 until 1 September 2013 the Applicant, along with a number of other State training managers, reported to the General Manager of Training, Ms F, who is based in Queensland. The financial performance of the training part of the business was not considered to be satisfactory and the employer considered that initiatives to increase sales were required, leveraging off other aspects of the business. The evidence did not suggest that the financial performance problems were confined to Victoria or that the performance of the training business in Victoria was worse than other States, however, the evidence did demonstrate a decline in overall profitability of the training business, including in Victoria.
 At a national conference in mid August attended by the Applicant and other State training managers the Managing Director announced that from 1 September 2013 the State training managers would report to the General Manager for company operations in their State. However, the General Manager of Training was to continue to have a role in respect to the training business and the State Training managers would continue to contact the General Manager of Training in respect to training product matters and would report certain matters to the General Manager of Training. Further the changeover of some financial reporting centres would not occur until 2014. The changed arrangements were formalised in an internal memorandum of 16 August 2013.
 The Applicant was on three weeks pre-arranged annual leave from 28 August 2013. There is some conflict in the evidence about the date of return from annual leave but it is accepted that the Applicant had returned from annual leave by 23 September 2013.
 The Applicant gave evidence that she understood that the changed reporting arrangements were only for administrative purposes such as approval of annual leave and to increase sales. I am satisfied that there was some lack of clarity about the new reporting arrangements and the relative responsibilities of the General Managers at the State level and the General Manager of Training. However, there was no basis for concluding that changed reporting arrangements were purely for administrative purposes. The State General Managers clearly had responsibility for improving the financial performance of the training aspect of the business in their State.
 When the Applicant was on leave the General Manager attended a meeting of the Victorian trainers. The General Manager made a presentation about the overall state of the business and the recent restructuring of elements of the business including some reductions in employee numbers. The presentation included a slide which referred to the headcount in the training business and the revenue and profitability of that part of the business. As a result of the presentation some members of the Applicant’s team felt that there was a potential threat to their job security. The concerns were expressed to the Applicant but not to the General Manager. The Applicant did not tell the General Manager about the concerns until October 2013.
 There had been no problems in the relationship between the Applicant and the General Manager prior to her return from annual leave. However, by early October 2013 significant problems in the relationship had developed. In the first month of the changed reporting arrangements the General Manager alleges that the Applicant avoided him, failed to attend meetings, failed to keep him updated about important information about the business and about staff dissatisfaction, and discouraged the engagement of members of her team with the General Manager. During the same period the Applicant alleges that the General Manager failed to inform and encourage her involvement in relevant meetings, failed to provide adequate information about reporting responsibilities and expectations, undermined her position by going directly to members of her team, and was overly intrusive and micro-managing. On 15 October 2013 the General Manager of Training met with the General Manager and the Applicant both separately and together in an attempt to resolve the issues. The General Manager agreed to take a step back and give the Applicant more space. The Applicant does not allege that bullying occurred before 30 October 2013 but submits that the events that occurred prior to that day provide context for the subsequent events which she says were bullying.
 On 30 October 2013 the General Manager called the Applicant into his office and told the Applicant that her behaviour was not acceptable and that he was not prepared to put up with it continuing. The Applicant alleges that what occurred at this meeting was bullying behaviour. The Applicant alleges that there were a number of subsequent incidents between 30 October 2013 and 28 November 2013. The Applicant has not been at work since 29 November 2013.
 The Applicant submitted that the instances of bullying generally occurred in private exchange between the General Manager and herself and that in front of others the General Manager did not generally behave unreasonably. However, the Applicant does rely on some instances of alleged undermining behaviour which were actions taken by the General Manager without her direct involvement and on some instances where others were present.
 I have considered all of the matters raised by the Applicant in her Statement prepared for the proceedings. 1 The main instances of unreasonable behaviour which the Applicant alleges constitute bullying are summarised as follows:
a) Aggressive tone and behaviour towards the Applicant at the meeting of 30 October 2013.
b) Questioned the Applicant’s decisions and hounded her about providing information at the meeting of 30 October 2013.
c) Undermining the Applicant by dealing directly with members of her team regarding use of the training room in early November 2013.
d) Undermining or inconsistent behaviour involving members of the Applicant’s team by telling trainers that they did not have to participate in an internal program and then changing the advice.
e) Blaming the Applicant for not telling the General Manager about outside interests of one of the trainers when the Applicant had not directly dealt with the matter for some time.
f) Checking on the absence of team members when these had been matters discussed directly between the team member and the Applicant.
g) Seeking to intervene in a matter between two team members which was being dealt with by the Applicant without consulting the Applicant.
h) At a meeting on 12 November 2013 when questioning the Applicant concerning a team member yelling “you’re wrong” twice and then checking the Applicant’s email and conceding “you’re right”.
i) At the meeting on 12 November 2013 stating that “you won’t make budget anyway” before asking what the budget was. This was allegedly undermining and belittling.
j) At the meeting on 12 November 2013 seeking information about whereabouts of trainers when he had checked on this directly earlier that morning.
k) At the meeting on 12 November 2013 stating that it was “just a shame that we had to work under the same roof”.
l) On 27 November 2013 the Applicant returned to work after two days of sick leave. The General Manager asked if the Applicant had a Return to Work clearance from her doctor. The Applicant said that she was not aware that one was needed. The Applicant rang her doctor seeking a return to work clearance but was still at work approximately one hour later when the General Manager asked why she was still at work and told her in a forceful manner to go home now. Ms P was a witness to this.
m) On 28 November 2013 the Applicant met with the General Manager in the presence of another manager Mr C. The Applicant asked for a support person to be present at future meetings involving the General Manager over the next few months as recommended by her doctor. The General Manager said “that’s not going to happen” and “you are not going to get that”.
n) In the meeting of 28 November 2013 the General Manager was overbearing in dealing with work issues.
o) In the meeting of 28 November 2013 the General Manager said that the Applicant should worry about her private online profiling business. She had advised the General Manager Training about this business when she was appointed but had not completed the company interests form. The Applicant says that she was told by the General Manager Training not to worry about the matter at the time of her appointment. The Applicant gave evidence in support of her application and there was also evidence from two practitioners concerning the alleged impact on the heath of the Applicant. The evidence of the practitioners was not subject to cross examination. I was satisfied that the evidence of the practitioners established that the Applicant was and is suffering from stress related illness which prevents her from engaging in her usual duties with the employer. I was not satisfied that the practitioners were able to provide evidence of probative value as to whether or not the alleged incidents of bullying had occurred. However, I was satisfied after considering all of the evidence and the submissions that the stress related illness of the Applicant was related to what happened at work between September and November 2013.
 I have adopted the approach to the legislative requirements in this matter as set out in the decision of Commissioner Hampton in Ms SB. 2
 I am satisfied and it was not in contention that the Applicant is a “worker” as defined by Section 789FC of the Act. I am also satisfied having considered all of the evidence that the Applicant reasonably believes that she has been bullied at work. I am satisfied that the preconditions for making an application as specified in Section 789FC have been met in this case.
 I agree with the submission of the Respondents that, based upon the requirements of Section 789FD and the considerations set out in the decision of Commissioner Hampton in Ms SB, to obtain orders the Applicant must establish that:
a) She was subject to unreasonable behaviour;
b) That the behaviour was repeated;
c) That she was subject to the repeated unreasonable behaviour while she was at work;
d) That the behaviour is not reasonable management action carried out in a reasonable manner;
e) That the behaviour created a risk to health and safety; and
f) If the orders are not made there is a risk that she will continue to be bullied at work.
 In the circumstances of this case the alleged behaviour did generally occur whilst the Applicant was at work. The Applicant did make reference to the meeting in September 2013, referred to earlier, which the General Manager conducted with members of the Applicant’s work team when the Applicant was on annual leave. In the end the Applicant did not contend that this was bullying behaviour. However, I am satisfied that the actions of the General Manager at this meeting and the responses of others including the Applicant do form an important and relevant part of the factual background for the consideration of subsequent incidents when the Applicant was at work.
 In the circumstances of this case I am satisfied that the health and safety of the Applicant was negatively impacted and continues to be impacted by what happened at work between September and November 2013.
 What is primarily in contention in this case is whether or not the alleged incidents constituted unreasonable behaviour by the General Manager and whether or not the actions of the General Manager constituted reasonable management action carried out in a reasonable manner. I cannot make orders unless the Applicant can establish that the alleged incidents constituted unreasonable behaviour by the General Manager and that they were not reasonable management action carried out in a reasonable manner. In the alternative, if these matters can be established then the preconditions for the making of an order are likely to have been satisfied provided I am satisfied that there is a risk of continued bullying.
The submissions of the Respondents.
 The Respondents provided a significant amount of evidence in response to the Application. There were ten witnesses for the Respondent. The vigorous nature of the evidence and submissions produced in response may have an impact on the prospects of a successful return to work by the Applicant.
 The Respondents submit that the General Manager did not engage in unreasonable behaviour. They submit that the Applicant was an extremely difficult employee, that the Applicant resisted the changed reporting arrangements and engaged in a campaign against the General Manager involving reluctant cooperation and at times open hostility. The Respondents submit that the behaviour of the Applicant constitutes bullying of the General Manager by the Applicant.
 The Respondents submit that the Applicant was not a credible witness.
Consideration of the evidence concerning the response of the Applicant and the General Manager to the restructure
 I am satisfied that the Applicant was concerned about the implications of the changed reporting structure which she was advised of in August 2013 and which was introduced from 1 September 2013. The Applicant raised questions about the details of the new reporting responsibilities when they were announced. I am satisfied that there was some lack of clarity and also some concern about the new arrangement and that this concern was shared by some other State Training Managers in similar positions to the Applicant. I am not satisfied that the initial responses of the Applicant were either unreasonable or disproportionate. The changed reporting structure was a significant change and those affected had every reason to be apprehensive.
 The General Manager of Training agreed that there had been no performance issues or concerns raised by her with the Applicant during the period when the Applicant was reporting to her.
 The General Manager of Training also agreed that during the initial period of the changed arrangements there was some lack of clarity about new reporting arrangements and the role of the State General Managers and herself. For example, in respect to financial matters, aspects of the financial reporting responsibility were to be handed over from 1 January 2014. State Training Managers such as the Applicant were to provide financial and activity reporting to both the General Manager of Training and the State General Manager.
 There were no issues in respect to the relationship between the Applicant and the General Manager prior to the change in reporting responsibility.
 Very shortly after the restructure was announced the Applicant went on three weeks annual leave which had been arranged in advance. During the period the Applicant was on annual leave the General Manager took an active interest in the activity of the training department. One example of this active interest was his attendance at a team meeting on or about 13 September at which he reported on the financial performance of the training department. Some of the members of the training department were alarmed at what was said and felt that their job security was at risk. Some of these employees subsequently complained about what happened at this meeting and a subsequent briefing on 27 September. I am satisfied that the actions of the General Manager were consistent with his new responsibilities.
 When the Applicant returned from annual leave she was alarmed to find out about the team meeting and briefing and the scrutiny of team members by the General Manager during the period of her leave. She was concerned at the effect that this had on members of her team. 3 The Applicant considered that she had made considerable efforts in building the effectiveness and cohesiveness of her team during the previous months. The Applicant considered that she had succeeded in improving the effectiveness of her team and overcoming earlier problems. She regarded the effect that the briefing had had on her team as a significant setback. I am also satisfied that she was upset and felt undermined by the fact that the General Manager had conducted this briefing and at the level of scrutiny of members of her team whilst she was on annual leave. I am satisfied that the Applicant felt that her position was to some extent uncertain. When the uncertainties created by the restructure were combined with the uncertainties created by the briefing it was understandable that the Applicant was upset and unsettled.
 The Respondents referred to evidence of some problems the Applicant had had with particular team members. I do not consider that this evidence negates the veracity of the Applicant’s evidence about her concerns. The team management issues were not sufficiently serious to lead to any performance concerns being raised by the General Manager Training with the Applicant.
 I agree with the Respondents’ submission that the content of the presentation made by the General Manager at the two briefings was not particularly dramatic. However, it is understandable that employees might be concerned at the underlying message in a presentation which focused on the fact that there had been a recent history of restructuring in the organisation and that there were issues about the financial performance of the training department.
 The General Manager made some efforts to involve the Applicant in late September and the first two weeks of October. The Applicant was consulted about a further presentation the General Manager gave to the training department on 27 September. The Applicant declined his invitation to make the presentation herself and did not provide input into the presentation. The Applicant did not discuss her concerns and those of members of her team about the earlier presentation with the General Manager. I am satisfied that the Applicant was not keen to provide the General Manager with information about her activities or those of her team and resented the instances where the General Manager involved himself in the department and approached members of her team directly for information. The Applicant denied some aspects of this but I accept the evidence of a number of witnesses that support a finding that this was what occurred.
 However, I am not satisfied that the Applicant disobeyed direct instructions or generally deliberately failed to respond to requests for information when they occurred. However, there was one instance where response was significantly and inappropriately delayed. I am satisfied that directly or indirectly the Applicant communicated to some other members of her team that she wanted them to communicate with her not with the General Manager and that she was not encouraging of the General Manager’s involvement. The Respondent submits that the Applicant hid behind the alleged “lack of clarity” about reporting arrangements and responsibilities. I am satisfied that rather than take the initiative and ask about matters such as whether or not she should attend meetings or provide information the Applicant waited for direct instructions or invitations. However, I am satisfied that the lack of initiative in this respect by the Applicant is largely explained by the insecurity she felt as a result of the changed arrangements. I am satisfied that the Applicant felt her work and her authority were threatened by the General Manager and she was unsure what the consequences of greater openness and engagement would be.
 There were some examples given by the Respondent of where the Applicant was seeking to exclude the General Manager which I was not satisfied were substantiated. For example, I was satisfied that the Applicant did make efforts to include the General Manager in the team meeting in early October but the General Manager did not attend.
 There were weekly meetings of State level managers with the General Manager (identified as tracker meetings). This was an all male group of managers until the Applicant was added to the group in October 2013. The Applicant missed more of these meetings than she attended in October and November 2013. The Applicant denied that she was invited to these meetings. I am satisfied that the “outlook recurring meeting invitation” was sent to the Applicant in early October 2013 and that at a later date the General Manager also made it clear that the Applicant was expected to attend these meetings. The Respondent produced a copy of the Applicant’s “outlook diary” through Ms P. That diary shows the weekly “tracker” meetings but identifies these as “cancelled”. Ms P gave evidence that she believed that the cancelling occurred when scheduling the 2014 meetings. The evidence of Ms P and the General Manager is that the Applicant was aware of the meetings and was invited but often failed to attend.
 I am satisfied that the Applicant has understated the extent to which the General Manager communicated his expectations of her. However, I do not dismiss the evidence of the Applicant that this was not done in a comprehensive manner prior to November 2013.
 The Applicant raised her concern and upset about the situation with the General Manager of Training and the National Human Resources Manager in the first part of October 2013. The General Manager also raised his concerns with what he perceived as the failure of the Applicant to adapt to the new reporting arrangements with the General Manager of Training and the Managing Director. The General Manager of Training came down to Melbourne on or about 15 October 2013 to deal with concerns that the restructure was not proceeding smoothly and the concerns of the Applicant. The General Manager of Training spoke to various participants including the Applicant and the General Manager. There was also a hook up involving the Managing Director on 16 October 2013. The Applicant’s concerns with the approach taken by the General Manager were aired. I am satisfied that the Applicant communicated her concern that the General Manager was too closely involved in her team which she found threatening and undermining. The General Manager agreed to be more hands off for a period of time. This continued for two weeks, however, the General Manager felt that during that time the Applicant failed to make adequate effort to improve the situation and was ignoring him, failing to provide information and failing to attend team meetings. Having considered all of the evidence I am satisfied that there was a reasonable basis for at least some of these concerns.
 I am also satisfied that all concerned underestimated the extent to which the Applicant had been emotionally affected by the earlier events. Despite her denials, I am satisfied that the Applicant felt threatened by the changed reporting arrangements. The Applicant had been used to less interventionist management from the General Manager of Training and felt threatened by the more interventionist approach of the General Manager.
 The Respondent submitted that the failure of the Applicant to cooperate with the General Manager and her behaviour in seeking to minimise her involvement and that of her team members with the General Manager constituted bullying behaviour by the Applicant. I do not accept this submission. The behaviour of the Applicant occurred within a two month period following her return to work from annual leave. This is not an unreasonable period for adjustment to change. Workplace change is often difficult. Much of an employee’s identity and self worth can be linked to their employment. Change to reporting responsibilities can be very emotionally challenging for some individuals. Senior managers have to accept the need for reasonable periods for adjustment and the need for support where employees have difficulty adjusting. Although the Applicant denied that she was resistant to the changed reporting arrangements I am satisfied that the evidence clearly demonstrates that she had considerable difficulty accommodating to the change.
 The Respondent gave evidence of an instance when the Applicant sought to participate in a meeting by telephone from an office in the same building as the meeting was occurring. I am satisfied that this did occur. It is my assessment that this illustrates that the Applicant did not feel comfortable participating in the meeting with the General Manager and the other managers and demonstrates the extent of her anxiety and distress. I am satisfied that this behaviour was not part of a strategy to bully or undermine the General Manager. I suspect it was humiliating for the Applicant to be seen by other managers to be avoiding contact in this way and that the more appropriate explanation for the behaviour is as a manifestation of the Applicant’s difficulty in accommodating to the change, and feelings of insecurity and threat. I am satisfied that the Applicant avoided contact and participation in the meetings at least in part because she did not feel comfortable.
 I am satisfied having read the statements of the other State level managers and the General Manager that they got on well and were comfortable with each other. A female manager would be somewhat of an outsider when coming into this all male group for the first time.
 Having regard to all the circumstances and to the evidence of Mr C in particular I consider it possible that some of the other managers who gave evidence may have been motivated by a desire to defend themselves and the General Manager and to maximize negative impressions about the Applicant because she had raised a complaint against the General Manager. I am not satisfied that the General Manager and the National Human Resources Manager considered this issue when dealing with the Applicant and her concerns. It is natural for a well functioning group to seek to maintain its solidarity and defend itself and its leader.
 I have considered the evidence of other managers and of some employees that they considered that the General Manager was well regarded and was approachable and that they felt that the General Manager went out of his way to accommodate the Applicant and did nothing negative towards her. The perceptions of those who feel comfortable within the culture of a team about the leader of that team and about someone who is perceived to be threatening to the culture of that team should be treated with some scepticism. In the context of a bullying allegation such evidence should be treated with some caution. It is unlikely to be a reliable indicator that bullying has not occurred. If there were a circumstance where a person in a position of authority was engaged in bullying they may well be supported by plenty of evidence of this kind. The problems with the evidence of Mr C discussed later illustrate the limited value of this evidence in the circumstances of this case.
Consideration of alleged inconsistency and embellishment in the Applicant’s evidence.
 On 19 November 2013 the Applicant made a complaint to the National Human Resources Manager alleging bullying by the General Manager. The National Human Resources Manager conducted an investigation. The National Human Resources Manager met with the Applicant at the time she raised the complaint. She was clearly upset at the time of that meeting. The Applicant provided a copy of her notes to the National Human Resources Manager later that day. He then interviewed a number of other persons and reached the conclusion that the allegations were not substantiated without further interviewing the Applicant. The Respondent provided an analysis which compared the notes provided by the Applicant with the Statement of the Applicant and her evidence in the proceedings before me. I am satisfied that there are a number of details provided in evidence in proceedings which were not contained in the notes.
 Considered in context it is not reasonable to assume that the notes provided by the Applicant necessarily contain all details. They may well need to be contextualised to be properly understood. There is no reason to doubt that the evidence given by the Applicant for these proceedings provides such contextualisation. I reject the submission that this is embellishment or exaggeration. I have considered all the examples of conflict between the notes and the other evidence provided by the Respondents. 4 The only matters I believe are of significant concern are the following:
● In the Applicant’s Statement she states that the General Manager said that he could be micro managing and controlling by nature at the meeting on 15 October attended by the General Manager, the General Manager of Training and the Applicant. The earlier notes record that she told the General Manager that she wanted to be able to do the job she was employed to do without being micro-managed and that the General Manager then agreed that he would allow her to do this and not meddle in the training business or micro manage her. After considering all of the evidence including the evidence of the General Manager, the General Manager of Training and the Applicant I am satisfied that the notes give a more accurate impression than the later Statement. I am satisfied that the Applicant expressed concern about micro-management and in response the General Manager agreed to give her more space.
● In the Applicant’s Statement in proceedings and in the Application she says that at the meeting on 11 or 12 November with the General Manager, the General Manager said: “it was just a shame that we had to work under the same roof.” Nothing to this effect was included in the notes. After considering all of the evidence I am satisfied that the notes give a more accurate impression than the later Statements in this respect.
 The Applicant was reluctant to concede that she had been informed of and invited to the weekly managers meetings (the tracker meetings). As discussed earlier, I am satisfied that the outlook invitation to the meetings was sent to the Applicant. I accept the evidence that on occasion the meetings were cancelled or the time or location was changed and that this provided a reasonable explanation for her non-attendance on those occasions. I accept the evidence of the Applicant that on one occasion in late October she went to the location of the meeting and observed it was not in progress and was later informed that the meeting had proceeded but in a different location. These events provide some basis for the Applicant’s perception that she was not invited and/or welcome to participate. However, for the reasons discussed earlier I accept that the Applicant was to some extent avoiding the tracker meetings and engagement with the General Manager. I am satisfied that the Applicant may have felt excluded and may not have acknowledged diary invitations. I am therefore not satisfied that the Applicant was being deceitful in her evidence. However, I am satisfied that the Applicant was not excluded from the meetings and her failure to attend meetings was also as a result of a lack of proactive action on her part.
 The Applicant did not agree with the proposition that she did not like the change from reporting to a remote manager to reporting to an onsite manager. The Applicant asserts that it was not the change to an onsite manager but rather the behaviour of the General Manager which was of concern. I am satisfied that the Applicant was concerned about the nature and intensity of supervision. However, I do not consider the Applicant’s responses to this point lack credibility.
 The Applicant did not concede that she failed to provide the General Manager all the information which he asked for. I am satisfied that the Applicant did not provide weekly reports and forecasts which were expected by the General Manager. However, when the non-attendance of the Applicant at tracker meetings and her general state of anxiety are taken into account her responses on this matter do not lack credibility.
Consideration of the allegation that the Applicant bullied the General Manager
 The Respondents submit a number of examples of what they say was unreasonable behaviour by the Applicant which contribute to their submission that the Applicant was bullying the General Manager. 5 I have dealt with a number of these matters earlier.
 In my view the examples given are, in the main, illustrations of the stress and distress felt by the Applicant and the insecurity felt by the Applicant resulting from the changed management and reporting arrangements and her desire to retain control of her area of work. In a number of cases there is conflicting evidence. However, I am satisfied that on 9 October 2013 the General Manager asked the Applicant for the training sales strategy she had developed and she did not reply until two weeks later and then failed to be proactive in ensuring the General Manager had access to an outcome. Although I appreciate the Applicant was probably apprehensive about the consequences of providing information to the General Manager I am also satisfied that it was inappropriate for the Applicant to fail to advise the General Manager of the concerns of employees about the 12 September presentation by the General Manager when being asked for input into the 27 September presentation.
 I am not satisfied that the evidence demonstrates that the Applicant was bullying the General Manager. The instructions and expectations of a senior manager must often be regarded as the instructions and expectations of the employer. The inappropriate responses of employees to such instructions and expectations cannot be assumed to be unreasonable behaviour towards an individual senior manager. Of course depending upon the circumstances repeated unreasonable behaviour by employees towards their managers can be bullying. However, I am not satisfied that the Applicant was bullying the General Manager.
 I am also not satisfied that there is a basis for the submission that the Applicant was “an extremely difficult employee.” Prior to October 2013 there had been no concerns raised about the Applicant’s performance. The failure of the Applicant to respond well to the changed reporting arrangements over a relatively short period does not make the Applicant an extremely difficult employee.
 I did not find the Applicant to be an unreliable witness. Having considered all of the evidence I find the hypothesis that the Applicant returned from leave around 23 September and commenced to bully, disobey and undermine the General Manager because she did not accept the changed reporting arrangements implausible. The Applicant and other employees did have some concerns for their job security because of the changed reporting arrangements but the evidence does not suggest that these concerns were acute in the case of the Applicant. I am also satisfied that the Applicant was and is committed to her job and Company C. Prior to the restructure the Applicant had no animosity to the General Manager.
Consideration of the allegations of unreasonable behaviour made against the General Manager
October 30 meeting
 The General Manager asked the Applicant to meet with him in his office on 30 October. Having considered all of the evidence I have reached the following conclusions about that meeting.
 Two other employees (Ms W and Mr C) who were outside the office gave evidence about what they heard and saw of the events between the Applicant and the General Manager in the office. The General Manager told the Human Resources Manager that he had asked Mr C to remain in his office in case the meeting became heated.
 I accept the evidence of Ms W and reject the evidence of Mr C concerning the ability to hear and understand conversations conducted in the General Manager’s office through the glass partitions when the door is closed. Allowing for the fact that individuals have different hearing acuity, I am satisfied that the conversation would only be able to be followed by those sitting outside the walls if voices were raised. The fact is that neither Ms W nor Mr C gave any account to the internal investigator or in the proceedings before me about the content of the conversation. No one suggests that the conversation in the office was conducted in whispers. The fact that Mr C persisted in his evidence that normal conversations could be heard and understood throws some doubt on the rest of his evidence.
 When the notes of the internal investigator and the evidence given in these proceedings are compared both Ms W and Mr C have embellished the extent to which they were observing and able to observe proceedings in the office in their evidence in these proceedings. The witnesses confirmed to me the accuracy of the investigators notes. I prefer the evidence given to the investigator as it was taken closer to the events and in a less fraught atmosphere. Neither Ms W nor Mr C had a direct view of the General Manager and they were mainly looking out of the corner of their eye and glancing from time to time whilst carrying on their normal work. I am not satisfied that they are able to refute the matters raised by the Applicant concerning the meeting. Their evidence does confirm that the General Manager did not raise his voice to a significant extent but the Applicant does not allege that he did.
 The lack of probative value of the evidence of Ms W and Mr C is illustrated by the fact that they both agreed that they had a better view of the Applicant than of the General Manager during the meeting. They both agreed that they could see her face when they turned to look into the office. However, one described the Applicant as “very calm” 6 during the meeting whilst the other described her as “somewhat tense”.7
 If allowance is made for the difference in perspective of the participants the major difference between the account of the Applicant and the account of the General Manager concerning the meeting relates to what happened at the opening of the meeting. I am satisfied that both parties to the meeting anticipated that the meeting might be difficult. It is therefore to be expected that both parties would perceive the behaviour of the other through a critical lens which might tend to exaggerate elements of their behaviour.
 I am satisfied that it was reasonable for the General Manager to conduct the meeting behind closed doors given that he wanted to raise concerns about the Applicant’s conduct. I am also satisfied that it was reasonable management action for the General Manager to raise his concerns about the failure of the Applicant to be forthcoming with information and participate in meetings and his perception that the Applicant was deliberately avoiding him. I am also satisfied that it was reasonable management action for the General Manager to require more frequent reporting.
 The Applicant says that the General Manager proposed daily reporting. This was denied by the General Manager. The suggestion of daily reporting would in the context not have been reasonable and would have rightly been seen by the Applicant as intimidatory micro-management. However, the Applicant concedes that the General Manager quickly revised this to weekly when the Applicant questioned this. Therefore, even on the Applicant’s own evidence the revised proposal concerning reporting was reasonable management action.
 I do not consider that it was unreasonable action for the General Manager to itemise the matters about which he felt the Applicant should have kept him informed. I am satisfied that this aspect of the meeting did not amount to hounding or harassment. The Applicant conceded in cross examination that she had said: “...this is just going to take time for me, as I’ve said before this is just going to take time for me to get my team back together.” 8 I agree with the Respondents that this was an acceptance by the Applicant that she had not been adequately engaging with the General Manager.
 The only element of what the Applicant alleges which could constitute unreasonable conduct would be the allegation that the General Manager was angry and threatening and pointed at the Applicant when he said that her behaviour was unacceptable and had to stop. There was some inconsistency in the Applicant’s evidence about the manifestations of the General Manager’s anger - raised neck veins, clenched teeth, blazing eyes and pointing were mentioned on some occasions. The pointing and the blazing or staring eyes were mentioned consistently.
 However, having observed the General Manager and the Applicant in the witness box and having considered all of the evidence, I am satisfied on balance that the General Manager was angry and spoke in an aggressive tone when he told the Applicant that “this had to stop”. I found the Applicant’s evidence that she was shocked and upset by the General Manager’s tone to be convincing. I am also satisfied on balance that the General Manager pointed at the Applicant. The fact that the General Manager asked the two staff members located next to the office to keep an eye on the meeting was indicative of the level of agitation felt by the General Manager about the situation. I am also satisfied that the General Manager had communicated his negative views of the Applicant’s behaviour to others in the management team and to the two persons he asked to keep an eye on the meeting. By 30 October I am satisfied that the General Manager and the other managers had developed a joint view of the Applicant as a problem. I am satisfied that this amplified the General Manager’s feeling of agitation about the Applicant’s behaviour. I am satisfied that the Applicant was genuinely shocked and upset after the meeting on 30 October.
 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.
 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.
 This finding does not mean that I accept the submission of the Respondents that the claimed response of the Applicant was such a gross over-reaction as to be not credible. After considering all of the circumstances and the evidence I am satisfied that the Applicant was genuinely shocked and upset by the behaviour of the General Manager at the start of the meeting on 30 October 2013.
Undermining and micro-management
 The Applicant was concerned at what she perceived as the General Manager going behind her back directly to members of her team including in the period following the 30 October meeting. For example, I am satisfied that the General Manager made several inquiries, without involving the Applicant, on one day concerning the absence of a particular team member. The situation of this team member had been the subject of discussion between the team member and the Applicant. I have carefully considered the evidence in respect to all of the incidents of undermining or micro-management referred to by the Applicant. 9 To determine whether or not there has been unreasonable undermining or micro-management the allegations need to be considered together. When considered in context it is understandable that the Applicant felt defensive and undermined by these incidents, however, these incidents, considered collectively, could be described as reasonable management action given that the General Manager had overall responsibility for the department and was concerned, with good reason, to find ways to improve the economic performance of the department. I am satisfied that in the examples raised of inconsistent instruction the worst that can be said is that the General Manager made an error which was then promptly corrected upon receipt of better information. The examples given when taken as a whole do not constitute unreasonable micro-management.
The meeting of 11 or 12 November 2013
 I do not consider that it was unreasonable action for the General Manager to make the allegation about the unsatisfactory conduct of one of the training team members. I am satisfied that the General Manager was correct that the Applicant had not kept him appropriately informed. I am satisfied that the fact that she had advised the National Human Resources Manager did not make it unreasonable for the General Manager to also expect to be informed. I am satisfied that the Applicant was aware that there were two unresolved complaints about the team member when the meeting occurred and it was reasonable for the General Manager to be concerned about this. I am satisfied that the information requests made by the General Manager at this meeting were reasonable management action.
 The allegation that the Applicant was excluded from meetings is raised in the context of the 11 November meeting. For the reasons dealt with earlier I am not satisfied that the Applicant was excluded from meetings.
 The Applicant says that the General Manager said in the meeting that “she won’t make budget” prior to knowing what the budget was. When considered in the context of the notes the Applicant provided to the National Human Resources Manager there is nothing unreasonable in the General Manager raising concern about the budget. The Applicant confirmed that it was correct that her team would not make budget at that stage. Considered in context this was not unreasonable behaviour.
 For reasons discussed earlier I am not satisfied that the General Manager said that it was “just a shame that we had to work under the same roof”.
 The only element of the Applicant’s account of this meeting which could constitute unreasonable behaviour is the allegation that the General Manager yelled “you are wrong” twice. The Applicant says that the General Manager directly after saying “you are wrong” checked her email and conceded “you’re right” This is the only allegation made by the Applicant where it is alleged that the General Manager shouted or yelled. The General Manager denies yelling. It is not necessary to determine this matter since I am satisfied that even if the General Manager raised his voice his immediate concession that “you’re right” means that this isolated instance of raised voice would not constitute unreasonable behaviour.
Attempted return to work on 27 November 2013.
 This was the first time we are aware of that the Applicant had taken “stress leave.” The Applicant provided a medical certificate for absence of one week but returned to work on the third day. The Applicant says that she was directed to leave in a forceful manner but Ms P and the General Manager deny that the direction was forceful. The General Manager says that he only directed the Applicant to leave after consulting the National Human Resources Manager. I am satisfied that even if the General Manager was forceful he was not unreasonably aggressive in directing the Applicant to leave the premises.
 The General Manager in response to my question during proceedings said: “the overriding concern in the main was for her health”. 10
 The General Manager accepted that return to work clearance was not always required when an employee returned from sick leave or returned early from sick leave. The Applicant was in a managerial position. Employees in such a position can be expected to make assessments about their fitness for duty in many circumstances. I am satisfied that the Applicant’s decision to return to work was a manifestation of her commitment to her job and her employer. In the context of the earlier investigation and the 30 October incident the General Manager should have been conscious of the need to avoid any perception of punishing the Applicant for her complaint or exacerbating the problems in their relationship.
 These matters have to be seen in the context that they follow the outcome of the National Human Resources Manager’s internal investigation which found the bullying complaint of the Applicant concerning the 30 October meeting to be unsubstantiated.
 I am satisfied that the General Manager was very upset with the Applicant’s bullying complaint.
 A week later on 4 December 2013 the General Manager wrote to the National Human Resources Manager:
“(The Applicant’s) relationship with me appears to be vexatious and venomous as evidenced by her still clinging to fanciful bullying and harassment claims against me. She has attempted to divide the training department and I have come to the conclusion that she is incapable of managing the business. I have at all times acted and remained professional in my dealings with (the Applicant), as I would do with any other manager, however I now believe that the relationship between us is beyond repair and as such recommend that does not return to the business.” 11
 Although this statement follows the events of 27 and 28 November I consider that it provides some insight into the attitude of the General Manager to the Applicant following the investigation of the bullying complaint by the National Human Resources Manager.
 The General Manager had good cause to be critical of the Applicant and the way in which she had failed to adequately adapt to and in some respects was resisting the new reporting arrangements. However, in all of the circumstances the assessment that the Applicant was “vexatious and venomous” towards the General Manager was not warranted.
 In my view it was quite understandable that the Applicant perceived the direction to return home as unreasonable behaviour.
 Although the evidence of the letter of 4 December 2013 suggests that the General Manager may not have been mainly motivated by concern for the Applicant’s health, on a fine balance I am unable to conclude that it was not reasonable management action. The General Manager was in the best position to assess the state of distress of the Applicant and the risks involved. The action was carried out in a reasonable manner. I am not satisfied that the direction to return home was in all the circumstances unreasonable behaviour.
28 November 2013 meeting
 The Applicant says that the 28 November meeting resulted in the Applicant deciding that she could not continue at work and she has been off work on workers compensation since that time. I accept the Applicant’s evidence that she decided as a result of the meeting on 28 November 2013 that she could not continue at work.
 The General Manager at the meeting on 28 November told the Applicant that she was not to take trainers with her on visits to drum up business but rather was to take the General Manager with her to visit a particular customer. According to the General Manager the Applicant became upset at this and raised her voice and said: “you will not micro-manage me”.
 There is significant inconsistency between the account of Mr C and the account of the General Manager concerning this meeting. Mr C suggests that the General Manager agreed to a witness being present at future meetings between the Applicant and the General Manager whereas the General Manager and the Applicant agree that the General Manager said: “I can’t agree to that”. Mr C also does not mention the conversation about the direction that the Applicant take the General Manager with her to visit a particular customer and in fact says that her upset response about not micro-managing was made “without provocation”.
 Where there is a conflict I prefer the evidence of the General Manager and the Applicant to the evidence of Mr C. I have earlier commented that I found other aspects of the evidence of Mr C to be unreliable.
 The direction not to take trainers to visit potential clients and to take the General Manager with her to visit the customer was reasonably perceived by the Applicant as intrusive and an expression of lack of confidence in the Applicant. The reaction of the Applicant was in this context reasonable and understandable. However, the General Manager’s requirement that trainers not accompany the Applicant on visits to clients is in context reasonable management action. It is reasonable for the General Manager to determine such priorities in the use of resources. I am not satisfied that there was evidence that the General Manager was otherwise overbearing in dealing with work issues.
 I do not consider that the inquiries by the General Manager in respect to the register of other interest form to be unreasonable management action. I also consider it reasonable that the General Manager advise the Applicant that this matter may have to be considered further. There is conflict in the evidence as to whether or not the General Manager said that it was about to get serious and that the Applicant should worry about it. However, even if words to this effect had been said given the seriousness and importance of the policy issue involved it would still have been reasonable management action carried out in a reasonable manner.
 In response to the Applicant’s request not to have one on one meetings with the General Manager the General Manager says that he said: “I can’t agree to that - I’m your manager.” I am satisfied that the response was inappropriate. The General Manager and the Respondent employer should have made a more considered response to the request and considered what arrangements if any might have been appropriate to deal with the Applicant’s anxiety particularly given that she had recently made a bullying complaint. It is possible that arrangements might have been arrived at which met the needs of both the business and the Applicant.
 The Respondent submits that the General Manager was simply refusing the request for a support person at every meeting. The Applicant agrees that at the start of the meeting the General Manager asked if she needed a support person and she responded that she was comfortable with Mr C being present but that she wanted a support person for subsequent meetings for a couple of months.
 I consider it to be reasonable management action to refuse a general request that all meetings be witnessed. However, it was not carried out in a reasonable manner because in context there should have been a more considered and qualified response to the proposal that the Applicant not meet with the General Manager alone. The Applicant says that her request was for a time limited period. The failure to adequately respond left the Applicant with the impression that she would be required to meet with the General Manager alone in circumstances where the problems in her relationship with the General Manager were causing her considerable distress.
 I have regard to the context. The Applicant had been on stress leave. The previous day the Applicant had attempted to return to work and had been told to go home. The General Manager should have had regard to the situation of the Applicant.
 I am satisfied that the responses of the General Manager at the meeting on 28 November 2013 were influenced by his anger at the Applicant’s bullying complaint against him. This is illustrated by his correspondence of 4 December 2013 quoted earlier.
 The failure to adequately respond to the request for a support person at meetings was unreasonable behaviour and not reasonable management action carried out in a reasonable manner.
Other complaints against the General Manager
 Three other complaints have been made against the General Manager by other persons. However, given that internal processes have found two to be not substantiated and no details have yet been provided to the employer about the third complaint and given that there was no direct evidence concerning the circumstances I cannot take these matters into account.
The internal investigation.
 In mid November the Applicant made a bullying complaint against the General Manager. The first complaint was made through an internet system which is utilized by the company internationally. It is not known what happened with that complaint. The second complaint shortly after was made to the National Human Resources Manager. He promptly conducted an internal investigation. That investigation particularly focused on the allegation concerning the meeting of 30 October. The Applicant complains that she was not given a proper opportunity to have input into the inquiry given that she was distressed at the time she made the initial complaint to the National Human Resources Manager. The National Human Resources Manager agrees that the Applicant was distressed at that time but believes that the Applicant was able to adequately communicate what had happened. The National Human Resources Manager also requested and obtained notes which had been prepared by the Applicant concerning the incidents. The National Human Resources Manager was satisfied that what had been said to him in the interview and what was in the notes was complementary and consistent.
 In hindsight it would have been better for the National Human Resources Manager to further interview the Applicant after he had the benefit of the input from the other witnesses. However, I do not consider that the process undertaken by the National Human Resources Manager was unfair or unreasonable. It should be noted that the only incident of unreasonable behaviour which I have found substantiated occurred after the investigation of the National Human Resources Manager.
 I consider that the National Human Resources Manager placed inappropriate reliance on the evidence of the two witnesses who were outside the office. I consider that the National Human Resources Manager did not give adequate attention to the potential role of gender issues, overall atmosphere or culture in the office and attitudes which had developed concerning the Applicant. I cannot see an adequate basis for the conclusion of the Human Resource Manager that:
“(the Applicant’s) allegations in relation to the meeting on 30 October 2013 were unsubstantiated. Overwhelmingly, the evidence showed that the alleged aggressive verbal and body language did not occur.” 12
Conclusion in respect to bullying.
 I have found it difficult to reach a conclusion in this matter. However, the only instance of unreasonable behaviour which I have found was the behaviour of the General Manager at the meeting of 28 November 2013 in failing to properly respond to the request for a support person at future meetings. I considered that the actions on 27 November 2013 in sending the Applicant home may have been unreasonable behaviour but on fine balance concluded that it was not. I have earlier found that the angry and aggressive tone utilised by the General Manager on 30 October 2013 should be considered in the context of subsequent actions. Considering all of the matters I am not satisfied that there were repeated incidents of unreasonable behaviour which were not reasonable management action carried out in a reasonable manner.
 I therefore cannot make orders in this matter.
The Applicant represented herself.
Ms R Sweet with Mr G Jolly appeared for the Respondents.
Final written submissions:
6 June 2014
1 Exhibit C1.
2  FWC 2104,  to .
3 Exhibit S10, Attachment SJ 11, page 1.
4 Submissions in reply of 23 May 2014, Schedule B.
5 Written submission in reply of 23 May 2014, at para 4.9.
7 PN1102 and PN1105.
9 See paragraph 13 above, items c, d, e, f and g.
11 Exhibit S1, Attachment DC 21.
12 Exhibit S10, at 35(a).
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