DECISION

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

Mohamed Aly
(AB2015/114)

Application for an FWC order to stop bullying - application dismissed - reasonable management action.

[1] Mr Mohammed Aly (the Applicant) has made an application for orders to be issued by the Fair Work Commission (the Commission) to stop bullying pursuant to s.789FC(1) of the Fair Work Act 2009 (the Act). Mr Aly seeks orders against his employer, the Commonwealth Securities Limited (CommSec), and his two managers (collectively the Respondents).

[2] The application was subject to conciliation where it did not settle.

[3] The Applicant represented himself in the proceedings. In a separate decision I granted permission for the Respondents to be represented by a lawyer. 1

[4] Mr Aly gave evidence on his own behalf. Evidence was given for the Respondents by Ms Michelle Gentile, Mr Russell Hayman and Ms Maree Larkings.

[5] For the reasons given below I find that Mr Aly has not been bullied at work. His application for orders against the Respondents is dismissed.

De-identification of parties

[6] CommSec has made an application for the de-identification of the parties to the application.

[7] Mr Aly opposes the application. He says that it is better that the matter be heard in public so that others may learn from what he claims to be bullying action of others against him.

[8] I have some sympathy for the application by CommSec. I appreciate that the individuals named in the application may, in particular, feel aggrieved that they are identified in the decision.

[9] I am however mindful of the principles of open justice. I discussed these in the decision in Corfield 2 and concluded that:

[30] In deciding whether or not to grant the application of the Respondents it is necessary that I balance the open justice principle against the effects of identification on the on-going employment relationship that between the Applicant and the Respondent employer and any embarrassment or distress felt by the Respondents in being identified.

…

[32] It is undoubtedly true that the Respondents would prefer that their details not be made public. It is likely that this would be the preference of many parties in matters before the Commission. That it is the preference of the parties or that there may be some unwanted scrutiny because of the identification of the parties is not a basis to conclude that the parties should be de-identified. It seems to me that there is no harm, apart perhaps from some embarrassment to the Respondent employer, which will come from the identification of the parties. As was explained in Smidmore, mere embarrassment, distress or damage by publicity is not a sufficient basis to grant such an application.

[10] I have also had regard to the conclusion of Vice President Hatcher in considering a similar application in Amie Mac v Bank of Queensland & Ors. 3

[11] The conclusions reached in Corfiled and in Amie Mac are pertinent to the matter before me. I should add that there appears to be no ulterior motive by the Applicant in making his application such that I should give some weight to that reason in considering the application by CommSec. For the reasons set out in each of those decisions mentioned above I have decided not to de-identify the parties to this application.

Background

[12] Mr Aly is a Customer Assist Officer (CAO) with CommSec and has held that position since 2012. His direct manager is Ms Michelle Gentile. Ms Gentile reports to Mr Russell Hayman who, in turn, reports to Ms Maree Larkings.

[13] As a CAO Mr Aly is required to comply with minimum key performance indicators (KPIs). These include:

• Compliance with strict, and closely monitored, legislative obligations including those arising under the National Credit Code and required by the Australian Securities and Investment Commission;



• Ensuring that his average handling time for call stages and adherence to schedule is in line with the standard metric for all CAOs;



• Meeting the quality standards established by CommSec for CAOs, including by following proper procedure to comply with legislative requirements. 4

[14] Mr Aly was counselled by Ms Gentile and Mr Hayman with respect to his performance and, in July 2014, was placed on an Enhancing Employee Performance Plan (EEPP). This ended in August 2014 but he was placed on a second EEPP that commenced on 3 October 2014, was extended on 19 November 2014 and subsequently ended in December 2014. It is primarily the circumstances leading up to and the reasons for being placed on each of the EEPPs that form the basis of Mr Aly’s application.

Relief sought

[15] Mr Aly seeks an order that he be placed to work with CommSec where he is not subject to the supervision of Ms Gentile or Mr Hayman.

The legislative framework

[16] The relevant statutory provisions of the Act are:

789FC Application for an FWC order to stop bullying

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

(2) ...

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.

…

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.

[17] It is not disputed that Mr Aly believes he has been bullied at work. Whether that belief is reasonable is a matter for this decision.

[18] Mr Aly is a worker for the purposes of this application (s.789FC(2)) and CommSec is a constitutionally-covered business (s.789FD(3)) such that the anti-bullying provisions of the Act apply.

[19] To make an order of the type sought by Mr Aly I need to be satisfied that Mr Aly has been bullied at work and that there is a risk that bullying will continue.

[20] In determining if Mr Aly has been bullied at work it is necessary to determine if the Respondents have repeatedly behaved unreasonably towards Mr Aly and that behaviour creates a risk to health and safety. If the actions that have been taken against Mr Aly are reasonable management actions carried out in a reasonable manner it will not be considered bullying.

Application to require a person to attend

[21] Mr Aly made an application at the commencement of the hearing that I order Ms Vikki Johnson, a note taker in a number of the meetings during his second EEPP, to attend and give evidence with respect to audio recordings of the meetings. CommSec objected to the issue of such an order because the meetings were not recorded. Mr Aly submits that the minutes of the meetings produced during the proceedings deliberately left out things that were said and/or that the minutes were so detailed that they must be transcripts from recordings of the meetings.

[22] In deciding not to order the attendance of Ms Johnson I took into account that Ms Gentile and Mr Hayman could give evidence (and be cross examined) as to the accuracy of the notes of the meetings and as to whether any recordings were made. Further Mr Aly could give evidence on what he says was discussed at the meeting but not recorded in the minutes.

[23] Subsequently both Mr Hayman and Ms Gentile denied any knowledge of any recording capabilities in the meetings rooms at CommSec and emphatically denied that the meetings were recorded.

[24] Whilst Ms Larkings could not give evidence about any specific meetings her evidence is that she would never record a meeting without the permission of all in attendance. 5 She gave evidence that she was not aware of any recording capability in the conference rooms.

[25] Further, Mr Aly had no evidence to support his submission that the meetings were recorded. His reasons for believing the meetings were recorded are irreconcilable. If the detail of the minutes supports an argument that the meetings were recorded then the lack of accuracy in some of the minutes he cites would suggest there was no recording.

[26] I accept the evidence of Mr Hayman and Ms Gentile that there was no recording made of any of the meetings that Mr Aly attended with either of them. The evidence of each person, individually given, was corroborated by the other. The evidence was emphatic and the credibility of the witnesses on this matter is not in doubt.

[27] The differences in the level of detail in the minutes taken in each meeting is easily attributable to the style (and perhaps capabilities) of the note taker (who was not the same person in all meetings) and perhaps to the role of the note taker. In meetings attended by both Mr Hayman and Ms Gentile I accept that each spoke and each took notes, particularly when the other was speaking. In later meetings conducted by Ms Gentile the notes were taken by Ms Johnson. Ms Johnson’s role was not as a participant in the meetings but as support to Ms Gentile and note taker which may go some way to explain the detail in her notes. Other note takers appeared in earlier meetings.

Evidence and submissions

[28] Mr Aly relies on the following conduct, which he says is unreasonable conduct, as evidence of being bullied at work:

• That he was placed on a performance management plan (EEPP) without justification and he was held to a higher standard of performance than other employees;



• That he was unnecessarily micro-managed; and



• That false and unjust claims were made with respect to his conduct.

[29] CommSec says that its actions were reasonable management actions carried out in a reasonable manner and that therefore Mr Aly was not bullied at work.

Performance issues and the EEPPs

[30] Ms Gentile has been Mr Aly’s Team Manager since he commenced work as a CAO in 2012. He is one of 11 CAOs reporting to her. Her responsibilities are to provide coaching for her team members, to monitor each CAO’s performance against the KPIs, to address compliance issues, and to evaluate five calls per month of each CAO.

[31] Mr Aly’s evidence is that he was aware of the requirements of his position including legislative obligations, breach obligations and KPIs including after call work (ACW), average handling times (AHT) and adherence to schedule (ATS) requirements.

[32] Ms Gentile says that in mid-2013 she noticed issues with Mr Aly’s performance. These were initially addressed in an informal manner and then addressed through a series of ‘action plans’ between October and November 2013. 6

[33] In April 2014 Ms Gentile commenced a further action plan with Mr Aly. It operated from 3 April to 21 May 2014. 7 This plan specifically identified the need for Mr Aly to improve his ATS.

[34] Mr Aly agrees that these action plans were put in place and agrees that they were intended to assist him improve his performance. 8

[35] In July 2014 Ms Gentile says Mr Aly’s performance was still below the standard required of him so a decision was made to commence him on Stage 1 of a ‘formal performance management process’ which involved being placed on an EEPP. Ms Gentile was absent at this time so Mr Hayman explained the EEPP to Mr Aly including the reasons for placing him on it. 9

[36] Mr Aly’s evidence is that he understands that the purpose of an EEPP is to identify areas of performance that require improving and then to assist an employee in reaching these standards. Whilst Mr Aly says he was surprised at being placed on the first EEPP he successfully completed that EEPP on 22 August 2014. This EEPP was managed by an acting team manager as Ms Gentile was on leave.

[37] Mr Aly submits that just because he successfully completed the EEPP does not mean it was reasonable that he be placed on it.

[38] On 29 September 2014 Ms Gentile and Mr Hayman met with Mr Aly to discuss his performance which had again declined below the expected standard. Whilst Mr Aly’s evidence is that he was placed on the second EEPP because of two procedural breaches, Ms Gentile’s evidence is that the extended reasons for placing him on the second EEPP were detailed in a letter to him dated 3 October 2014. 10 Ms Gentile gave evidence that the two procedural breaches in the previous four weeks justified placing Mr Aly on the second EEP because of where he was in his performance management.11

[39] Mr Aly’s evidence is that the notes of the meeting of 29 September 2014 do not reflect the totality of what was discussed during the meeting. He says he raised the standard operating procedure and named the co-workers he had spoken to 12 and this is not reflected in the notes. He also says the notes make his answers appear abrupt.13 He says that he believes the notes produced of that meeting suggest the meeting would have only taken 15 minutes and not the full hour the meeting went for.14

[40] One of procedural breaches that led to the decision to place Mr Aly on the second EEPP related to him not following the identification process for the partner of a customer, added into a phone conversation between Mr Aly and the customer (who was properly identified) until the end of the call (the identification breach).

[41] Mr Aly’s evidence is that there is no clear process for identifying a second person in a three way conversation such as the one he was engaged in. In this respect he refers to the standard operating procedure (SOP) for the identification process 15 which do not make reference to what should be done when a third person is added into a call and the behest of the customer.

[42] Both Mr Hayman and Ms Gentile gave evidence that the inbound/outbound process in the SOP should have been followed when the partner was added into the call and that Mr Aly did not follow this process.

[43] On 3 October 2014 Mr Aly met with Mr Hayman who went through the basis for the second EEPP with him. Mr Aly raised concerns with the second EEPP in respect of procedural breaches and in particular said that he did not consider the identification breach to be his fault as there was no process in the SOP for such a situation. At this meeting Mr Hayman also spoke to Mr Aly about concerns with Mr Aly’s behaviour towards Ms Gentile. Mr Aly denied the allegations in respect of this. 16

[44] As part of the second EEPP Ms Gentile met with Mr Aly on a weekly basis. The notes of these meetings set out in detail the matters raised with Mr Aly, the guidance given to him and the assistance and support offered. 17 Mr Aly agrees that in these meetings Ms Gentile raised with him things she may have concerns about, that she did not raise her voice at him, she was not rude to him and she did not verbally abuse him.18 Mr Aly says however that behaviour can be bullying even if voices are not raised. He says that these meetings with Ms Gentile made him feel stressed, tense and upset.

[45] Mr Aly agreed that, given he successfully completed his first EEPP, there was no reason he could not complete the second. 19 He says however that this does not necessarily mean that either of the EEPPs was reasonable.

[46] In November 2014, whilst acknowledging that Mr Aly’s performance had improved, his managers concluded that he was still not at the standard required and decided to extend the second EEPP for a further four weeks. This was conveyed to Mr Aly in a meeting and letter dated 19 November 2014. 20 That letter indicated that, while Mr Aly’s performance had improved, he had still not reached the minimum expectations of him and detailed where he had not met the required standards. The letter also detailed a misconduct matter in relation to a second breach of the clean desk policy that had recently occurred (considered below). Mr Aly raised his concern at being measured on procedural breaches in circumstances where ‘everyone gets them’.

[47] During the extended second EEPP Mr Aly’s performance improved and on 19 December 2104 he was advised the second EEPP was successfully completed. 21

[48] During the period of the extended second EEPP some changes were made as to how procedural breaches would be treated with respect to the Quality KPI of CAOs (including Mr Aly). Mr Aly was advised of this in a meeting with Ms Gentile on 5 December 2014. 22

[49] Ms Gentile’s evidence is that, while Mr Aly still had some areas in which his performance could improve, had he remained on the second EEPP the next stage would have involved the termination of his employment for poor performance. Her evidence is that she thought such an outcome would be too severe given Mr Aly had made improvements, so determined to end the EEPP. 23

[50] Ms Gentile gave evidence that she considered it reasonable to expect no procedural breaches (100% accuracy) from her team members. Whilst this is not achieved by many team members her evidence is that some staff can go for periods of six months or more with no errors. 24 Ms Gentile also gave evidence that three procedural breaches by a team member would result in them being placed on an action plan. The issue with Mr Aly’s performance was that he could not go for a reasonable period without any procedural errors.

[51] Mr Aly submits that Ms Gentile conceded that she could not manage more than one person on an EEPP at any given time but rather would place them on an action plan. He submits therefore that placing him on an EEPP when others had procedural breaches but were not placed on an EEPP was discrimination and bullying.

[52] Ms Gentile’s evidence is that she has never been in a situation of needing to have more than one team member on an EEPP at the same time but that while Mr Aly was on the EEPP she had team members on action plans as required. 25

[53] CommSec says that there is no medical evidence of any risk to Mr Aly’s health and safety or that there was any causal link between Mr Aly’s alopecia and the performance management of him by Ms Gentile and Mr Hayman. It says that the letter from Mr Aly’s Social Worker does not constitute medical evidence.

Micro-management

[54] Mr Aly’s evidence is that Ms Gentile micro-managed him or ‘nit-picked’ in a number of ways. Mr Aly says that these actions were designed to force him to resign from his employment with CommSec and were a form of bullying. He says that, as he only worked three days per week, having to meet with Ms Gentile twice in his working week (once for regular coaching and then again for the EEPP review) meant that on two-thirds of his working days he had to attend meetings with her.

[55] Further, he says that the decision by Ms Gentile that he move desks was a measure of micro-management and that he felt he was being picked on as there was no reason for him to, and no-one else was asked to, move desks.

[56] Ms Gentile’s evidence is that she has weekly one-on-one coaching sessions with each with each member of her team as a regular part of her role as Team Manager. In addition, she addresses performance issues, including procedural breaches, with CAOs as they arise particularly where a matter is critical. Whilst she held regular EEPP meetings with Mr Aly she says that these meeting were held separately to the regular coaching sessions.

[57] Ms Gentile’s evidence is that she did not consider her actions with respect to Mr Aly to be unreasonable, that she ‘tried to conduct [herself] around [Mr Aly] in a way that was supportive and sensitive.’ 26 She says she did not harass Mr Aly nor put any pressure on him to resign.27

Misconduct issues

[58] CommSec has a ‘clean desk’ policy. The policy requires that, at the end of each business day, all items of a confidential nature are to be locked away and tools that can be used to access confidential information (e.g. smart cards) are to be secured. The aim of the policy is to minimise the potential for loss of confidential or sensitive CommSec and customer information. 28

[59] Mr Aly received a warning about his non-adherence to the policy at around the time of his first EEPP.

[60] Mr Hayman’s evidence is that on Monday 27 October 2014 Mr Aly left a letter unsecured after he left for the day. The letter contained confidential information in relation to a customer. Leaving such a letter out at the end of the day is a breach the clean desk policy. On Tuesday – a day on which Mr Aly does not work – Mr Aly rang and asked a co-worker to find the letter.

[61] Mr Hayman’s evidence is that the letter was given to him on Tuesday morning and he placed it on his desk. He says that on Tuesday Mr Aly came into work, went into Mr Hayman’s office when Mr Hayman was not there and removed the letter without Mr Hayman’s knowledge or permission and placed it in the secure bin. Mr Hayman says he subsequently retrieved the letter from the secure bin.

[62] Mr Aly’s evidence is that on the Monday he left out a template document that did not contain customer details when he left for the day. He says that he came in to work on his non-working day as he had not completed the task associated with the letter. He located the template document on Mr Hayman’s desk and, as it was the one he had left out overnight, he placed it in the security bin. He says he then then created the final document with the customer details. He says he disposed of a version of the final letter in the secure bin. 29

[63] Mr Hayman met with Mr Aly about the matter on 31 October 2014. 30 Mr Aly denied the incident. He was subsequently issued with a letter of allegations in respect of the incident.31 A further meeting to consider Mr Aly’s response was held on 3 November 201432 and a second and final warning was issued to Mr Aly that day.33

[64] Mr Aly says the claims in respect of the letter are unjust and are further indication of bullying behaviour towards him by Mr Hayman.

[65] Mr Aly had previously received a warning for a breach of the clean desk policy. Ms Gentile’s evidence is that he is not the only team member to be given such a warning by her.

[66] Mr Aly introduced into evidence photographs of desks of other employees from his work area (one in his team, two from another team) which he says show blatant breaches of the clean desk policy. Neither Mr Hayman nor Ms Gentile could give a definitive statement as to whether or not the photographs did show breaches of the clean desk policy as neither was aware of the time of day the photographs had been taken or the circumstances under which they had been taken.

Complaint

[67] In about October 2014 the Applicant lodged a complaint through the Respondent’s internal grievance process with respect to the behaviour of Ms Gentile and Mr Hayman. On about 6 November 2014 Ms Larkings spoke with both Mr Hayman and Ms Gentile and with Mr Aly about matters raised in the complaint. Having spoken to all three and reviewed emails sent by Ms Gentile and Mr Hayman she concluded that there was no bullying or inappropriate conduct by Ms Gentile and Mr Hayman towards Mr Aly.

[68] After her initial discussion with Mr Aly, Ms Larkings followed up with him on 19 November 2014. At this time she also advised Mr Aly that she had recommended the extension of his second EEPP.

[69] Ms Larkings’ evidence is that during her conversations with Mr Aly he spoke to her in a loud and aggressive tone. 34 Whilst Ms Larkings agreed Mr Aly had told her he was calling from his mobile phone she did not recall that he said he was ‘in the city.’35

[70] Mr Aly’s evidence is that Ms Larkings never provided any justification for the extension to the second EEPP. He says that he told her that the entire second EEPP was baseless and that he intended to take the matter to the Fair Work Commission. Mr Aly says that the only reason the second EEPP was ended was because he threatened to take to the matter to the Commission.

Assessment of the evidence and witnesses

Witnesses

[71] I have carefully considered the evidence of the witnesses. I found Ms Gentile, Mr Hayman and Ms Larkings to be honest, forthright and clear in their evidence. There was no obfuscation or attempt to downplay the role each played in attempting to manage Mr Aly’s performance or conduct or respond to his complaints. Each openly acknowledged the difficulty and frustration they had from time to time in dealing with Mr Aly. Their evidence was credible.

[72] Mr Aly’s evidence, whilst sincerely given, demonstrated a failure to accept the basic right of his managers to set reasonable standards and manage staff to these standards. His motivation – and hence his evidence – appears to be based on his very subjective views as to what were reasonable standards for him to achieve and whether procedural errors were a reasonable matter to measure his performance against. Whilst his views were sincerely held his subjective approach to performance standards raises issues as to the weight that should be given to evidence on that matter.

[73] Where there is a contest in the evidence I prefer the evidence of Ms Gentile and Mr Hayman to that of Mr Aly.

[74] I do not accept the evidence given in an attempt to bring Mr Hayman’s character into question. An incident involving Mr Hayman and the partner of an ex-employee does not demonstrate a pattern of behaviour on Mr Hayman’s part. I accept Mr Hayman’s explanation of the incident. 36 Mr Aly is spared any criticism in raising this issue only because I have had regard to the fact that he was not represented in proceedings and has no legal training.

Record of meetings

[75] In addition to his claim of meetings having been recorded (dealt with above) Mr Aly raises issues with the accuracy of minutes of some of the meetings he attended. He says this is relevant to his claim that he was bullied as it raises questions as to the truthfulness of the witnesses in these proceedings and it demonstrates that the behaviour of some of those who attended the meetings (Mr Hayman and Ms Gentile in particular) was dismissive and indifferent to him. He says that the record of meetings taken by Sarah Key and Amar 37 are accurate but the remainder of minutes are not.38 On this he says that his notes of the meetings39 are an accurate and true reflection of what occurred in these meetings.

[76] Mr Aly says that some of the minutes are not a true account of the full discussion at the particular meeting, 40 that while the topics discussed are accurate they do not reflect ‘how and what was said, and the way in which it was said’41 and that matters are deliberately left out of them.42

[77] I accept that the notes of each and every meeting attended by Mr Aly and produced by CommSec may not reflect word for word all that was said in those meetings. The notes were not put forward as a verbatim account of the meetings held.

[78] It does not appear that the notes produced by Mr Aly were made by him contemporaneously or at a time not long after each of the meetings themselves. The notes appear to have been created for the purpose of either the internal complaint he made about Ms Gentile or for these proceedings. Further, there is no date in relation to two of the meeting notes although I accept that the ‘second meeting’ referred to is the meeting of 3 October 2014 (on the basis that Carly was the minute taker). It is not clear when the third meeting occurred (given that Vikki took minutes in about 10 meetings). I have considered those things Mr Aly says were not recorded in the minutes of the meetings but are contained in his notes. I do not consider these to be of such substance to detract from the general sense of the meetings or the reliability of the evidence of Ms Gentile, Mr Hayman or Ms Larkings. In addition Mr Aly only comments on the notes from three meetings when there were about 21 meetings held with him in relation to his EEPPs. That the minutes of three or so of these meetings do not properly reflect ‘what was said and the way in which it was said’ does not detract from the overall content of all of the meetings that Mr Aly attended that are recorded in these minutes.

[79] I reject the submission that the non-inclusion of some matters in the notes of the meetings is evidence of a lack of truthfulness on the part of the witnesses to these proceedings. I also reject the submissions of Mr Aly that the Respondents in any way ‘doctored’ any documentation put to the Commission.

Whether the behaviour constituted bullying

[80] In considering the matters before me I accept that ‘[I]t is not unknown for performance management techniques to be used as a means to achieve and justify a predetermined outcome of termination of employment.’ 43 It is not the case however that all performance management techniques are directed at forcing a resignation or justifying termination. The management actions must be considered objectively to determine if they were reasonable or otherwise.

[81] In Re SB 44 Commissioner Hampton considered what constitutes bullying.45 In relation to that what might be relevant to determining if, in the context of the Act, management action is reasonable he said:

[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. 

[footnotes omitted]

[82] I respectfully agree with the observations of Commissioner Hampton and have adopted this approach to my consideration of the matters before me.

[83] I also accept that a person does not need to be rude or aggressive to be engaging in bullying behaviour.

[84] I should observe at this point that, contrary to the submission of Mr Aly, that this application has progressed to a hearing before the Commission adds no weight to his claim of bullying having occurred. The matter has proceeded to hearing because it could not be settled in conciliation and because Mr Aly sought to have findings made in accordance with the Act.

Findings

Did Ms Gentile and Mr Hayman have grounds for placing Mr Aly on an EEPP?

[85] On the basis of the evidence before me I am satisfied that Ms Gentile and Mr Hayman had reasonable grounds to find that Mr Aly’s performance was not at the standard required of a CAO.

[86] There is no objective evidence that Mr Aly was held to a higher standard of performance than other CAOs. CommSec has established KPIs for all CAOs and all CAOs are measured against the same standards. That Mr Aly did not agree with the standards – particularly in relation to procedural breaches – is not evidence he was held to a higher standard than other CAOs.

[87] CommSec has a number of ways of dealing with underperformance including regular coaching, action plans and, should it be required, an EEPP. That Mr Aly failed to meet the standards required of all CAOs does not mean that the need for him to work to those standards or placing him on an EEPP was bullying.

[88] Had Mr Aly been placed on an EEPP and other CAOs not meeting the standards not been subject to any performance improvement program (including action plans) Mr Aly may have a basis for his complaint. However, the unrefuted evidence of Mr Hayman is that Mr Aly consistently failed to meet the minimum standards required of a CAO 46 when measured against the KPIs. Further, the evidence, again not refuted by Mr Aly, is that other CAOs were subject to action plans when necessary and were warned about breaches of the clean desk policy.

[89] Whilst Mr Aly, in his evidence and submissions, concentrates on procedural breaches and whether or not this justified that he be placed on an EEPP, the evidence clearly establishes that procedural breaches were not the only cause of concern with respect to his performance. The notes of his regular review meetings 47 (which while Mr Aly says are not complete he does not question to accuracy as to issues discussed and offers no contrary evidence of his performance) indicate that there were also concerns arising from customer complaints, quality scores, not using templates, call quality48 and his adherence to schedule (ATS).

[90] Mr Aly demonstrated twice, to the satisfaction of his managers, that he was capable of meeting the standards required of him. Had he maintained the level of performance achieved during the first EEPP he would not have been placed on the second EEPP. I accept that his performance slipped after the end of the first EEPP. It was therefore reasonable for him to be placed on a second EEPP. Having demonstrated (again) that he could meet the performance standards required of him, his second EEPP was concluded.

[91] Contrary to the submissions of Mr Aly there is no evidence that Ms Gentile could not cope with more than one CAO on an EEPP at any one time such that a claim of bullying might be sustained on this basis.

[92] I am satisfied that Ms Gentile appropriately managed CAOs who made procedural errors by coaching and placing on action plans as required. That no other CAO was on an EEPP at the time of Mr Aly is not evidence of unreasonable behaviour by his managers.

[93] Whilst Mr Aly might not accept the validity of the decision to place him of the first or second EEPP, considered objectively neither decision appears to be unreasonable. Much of Mr Aly’s concern stems from his belief that the system of determining breaches that applied to all employees was not a fair one and that he was being treated differently to other CAOs in respect of those breaches. There is no evidence to support such a conclusion. Employees who had procedural breaches at a certain level were placed on action plans. The expectation was that employees could maintain no procedural breaches for sustained periods. Mr Aly could not. This failure in his performance, along with other performance matters, meant he was placed on an EEPP.

[94] For these reasons I find that Ms Gentile and Mr Hayman (and to the extent she was involved in the process Ms Larkings) had reasonable grounds for placing Mr Aly on the first and second EEPPs and for extending the second EEPP. Further, I am satisfied that Mr Aly was not held to a higher standard than any other CAO. Whilst there may be some quibble from Mr Aly in the processes surrounding the EEPPs, this does not mean there was not an objectively justifiable reason for placing him on the EEPP.

Were Ms Gentile and Mr Hayman dismissive of Mr Aly?

[95] I am satisfied that the approach taken by Ms Gentile and Mr Hayman to the management of Mr Aly’s performance was reasonable. Mr Aly was advised of the standards expected of him. He was offered support and assistance in reaching the standards required including review meetings (in addition to normal weekly meetings) with Ms Gentile. Such a conclusion is supported by the content of the minutes of the meetings.

[96] The conduct of both Mr Hayman and Ms Gentile suggests that they approached the EEPP process and issues raised by Mr Aly in a reasonable manner. The notes of the meetings in respect to the EEPP suggest that Mr Aly was offered support and assistance to reach the performance standard required of him (and all CAOs).

[97] Despite Mr Aly’s submission, the minutes of the meeting of 31 October 2014 actually suggest that Ms Gentile and Mr Hayman were not dismissive or indifferent to him but were concerned as to his welfare. In these meetings Mr Aly indicated some distress. He was, as a consequence, given time away from the phones and then allowed to leave work early in recognition that the matters raised (relating to the clean desk policy) may have been confronting for him. These actions of Mr Hayman and Ms Gentile do not support a finding of unreasonable actions by them in relation to meetings over the clean desk policy.

[98] Whilst I accept that Mr Aly may have felt that he was being treated dismissively I do not consider that there is any evidence before me on which to base such a conclusion.

Was Mr Aly micro-managed?

[99] Whilst Mr Aly suggests that the number of meetings he was required to attend was micro-management of him and hence bullying behaviour, I do not consider this to the case. Whilst Mr Aly only worked three days a week it may appear excessive that he attend a review meeting each week for his EEPP. However, there is nothing in the minutes of these review meetings or in the evidence before the Commission to suggest micro-management of Mr Aly. Each detail of his work was not being scrutinised to an unreasonable level such that a claim for micro-management could be sustained. Further, Mr Aly makes no complaint of the weekly coaching sessions he also attended, nor does he suggest that the coaching and review meetings covered the same ground.

[100] Whilst I appreciate that Mr Aly felt he was attending too many meetings this was a facet of his part time employment. The number of meetings held with him was of course a delicate balancing act but it was important that Mr Aly was aware of his performance in terms of the EEPP and that he not miss out on coaching otherwise provided to CAOs. Whilst I make no criticism of Ms Gentile and Mr Hayman about the number of meetings held with Mr Aly, a sense of being over managed is a matter to be aware of in dealing with performance issues for all staff but particularly for staff who do not work every day.

[101] I am not convinced that the number of meetings attended by Mr Aly, assessed against the need to provide feedback on his EEPP and provide him with coaching generally available to staff, or the content of any of those meetings indicates micro-management. They were not unreasonable, considered overall and did not constitute bullying.

[102] I do not accept that the request of Mr Aly to move desks was micro-management. He may not have been happy with the request (although this is not reflected in the exchange he had with Ms Gentile 49) but there is nothing to suggest it was micro-management and it appears that the move would actually move him further away from Ms Gentile.

[103] There is no evidence to support a finding that Mr Aly was micro-managed.

Was Mr Aly treated unfairly over the clean desk policy?

[104] I do not consider that Mr Aly was subject to bullying in respect of the clean desk policy. Mr Aly agreed that he was aware of the policy. It is difficult to understand if the issue he takes with how he was treated under the policy relates to the first incident (in about March 2014) for which he received a warning or the second incident in October 2014 for which he received a second and final warning, or both. There is no evidence in relation to the circumstances of the first warning such that I could make any findings of bullying in relation to it. The second incident it seems to me was subject to reasonable processes of CommSec in that the allegations were put to Mr Aly, his response was considered and a decision was taken to issue him with a warning. Viewed objectively CommSec, and Mr Hayman, had reasonable grounds to make the decision it did following the investigation of the incident. Whilst Mr Aly might not agree with the decision taken by Mr Hayman it does not constitute unreasonable behaviour by management.

[105] I do not consider that there is any evidence to support a conclusion that Ms Gentile and Mr Hayman applied the clean desk policy inconsistently. The photographs provided by Mr Aly show ‘messy’ desks but there is nothing in them to indicate they breach the policy. Further, there is no evidence of the time the photographs were taken or what, beyond a drink bottle and cup, is actually on the desks.

[106] I am satisfied, on the basis of the evidence, that Mr Aly was not treated unfairly in respect to the clean desk policy.

Conclusion

[107] I have considered each of the matters that Mr Aly says demonstrate that he was subject to bullying at work such that an order should be issued.

[108] In making my finding I am mindful that in determining if management actions are unreasonable it must be on the basis of an objective assessment of the actions and not Mr Aly’s perceptions of the actions.

[109] In this case, for all of the reasons given above, I am satisfied that the actions taken by Ms Gentile, Mr Hayman were reasonable managements actions taken in a reasonable manner.

[110] Having made this finding I therefore find that Mr Aly has not been bullied at work. There are therefore no grounds on which I should or could make the orders sought by Mr Aly.

[111] The application for anti-bullying orders is dismissed. An Order dismissing the application will be issued with this decision.

COMMISSIONER

Appearances:

M. Aly for himself.

A. DeBoos of K&L Gates for the Respondent and persons named.

Hearing details:

2015.

Melbourne:

3 June.

Final written submissions:

Applicant: 23 June 2015, 14 July 2015.

Respondent: 7 July 2015.

<Price code C, PR568931>

 1   [2015] FWC 3604.

 2   [2014] FWC 4887.

 3   [2015] FWC 774.

 4   Exhibit R3, paragraph [14]-[15].

 5   Transcript PN809.

 6   Exhibit R3, attachment MG-5.

 7   Exhibit R3, attachment MG-6.

 8   Transcript PN565.

 9   Exhibit R3, paragraph 29 and 31.

 10   Exhibit R3, attachment MG-12.

 11   Transcript PN1305.

 12   Transcript PN422-4.

 13   Transcript PN427.

 14   Transcript PN422.

 15   Exhibit A2, attachment 4.

 16   Exhibit R4, attachment RH-11.

 17   See exhibit R3, attachments Mg-15 to MG-18.

 18   Transcript PN656-660.

 19   Transcript PN639.

 20   Exhibit R3, attachment MG-19.

 21   Exhibit R3, attachment MG-24.

 22   Exhibit R3, attachment MG-22.

 23   Transcript PN1284-1287.

 24   Transcript PN1307-15.

 25   Transcript PN1331-3.

 26   Exhibit R3, paragraph 48(d).

 27   Exhibit R3, paragraph 48.

 28   Exhibit R3, attachment MG-3.

 29   Exhibit R4, attachment RH-20.

 30   Exhibit R4, attachment RH-18.

 31   Exhibit R4, attachment RH-19.

 32   Exhibit R4, attachment RH-20.

 33   Exhibit R4, attachment RH-21.

 34   Transcript PN796.

 35   Transcript PN797.

 36   Transcript PN1698.

 37   Transcript PN483. Minutes of the meetings Mr Aly does not question are at exhibit R4, attachments RH-1-4 and RH-7-8.

 38   The minutes of meetings he questions are those from the meetings of 29 September 2014 and later. These minutes were taken by Ms Gentile, Mr Hayman, Carly or Ms Johnson.

 39   Exhibit A1.

 40   Transcript PN457.

 41   Transcript PN463.

 42   Transcript PN478.

 43   Ami Mac [2015] FWC 774.

 44   [2014] FWC 2104.

 45   Ibid, see, in particular, [41]-[45].

 46   Exhibit R4, paragraph 10.

 47   Exhibit R3, attachments MG-13-18 and MG-20-23.

 48   Referred to as ‘Q22’ on Mr Aly’s EEPP.

 49   Exhibit A6, entry of 8 September 2014 at 2.07pm.

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<Price code C, PR568931>