[2015] FWC 6602


Fair Work Act 2009

s.789FC - Application for an order to stop bullying




Application for an order to stop bullying – whether bullying conduct – whether alleged conduct by individuals formerly in the workplace is relevant – whether various conduct was reasonable management action – conduct of determinative conference discussed – multiple and interrelated allegations considered against the evidence – some unreasonable conduct found – whether created risk to health and safety – jurisdiction found – whether orders should be made – significant subsequent positive developments in the workplace – present circumstances of the applicant uncertain – not presently satisfied that orders can and should be made – further submissions sought.

1. Introduction and background

[1] Ms LP (the applicant) has made an application for an order to stop bullying under s.789FD of the Fair Work Act 2009 (the FW Act). The application alleges bullying conduct by a group of individuals in a workplace which is conducted by a private sector corporate employer; “A” Pty Ltd (the employer). The workplace concerned is a well-known family owned restaurant operating in Adelaide, South Australia.

[2] The group of individuals includes Mr JP (a Co-Director/owner and Manager of the employer), Ms GF (the Accounts Clerk) 1, and Mr NL (a lawyer acting on behalf of the employer and others in relation to an earlier application made by the applicant under these provisions).

[3] In all of the circumstances I have “de-identified” the names of the parties and individuals in this decision. These circumstances include the nature of some of the matters considered in this application and the fact that it relates to an on-going employment relationship. Further and of significance, this matter involves the alleged conduct of a number of individuals, who have not given evidence, in circumstances where evidence about their conduct must be considered and findings made for reasons explained in due course. The identification of the workplace would tend to identify all individuals. I also note that this matter has been heard at all times in a private conference and all parties either supported, or did not oppose, the issuing of a decision in this form.

[4] I note that although not named as individuals whose conduct is directly relied upon in the application, the applicant also now seeks to rely upon certain events that have included others in the workplace including a former Head Chef and a former Supervisor who have since left the business.

[5] Some of the background to this application is set by an earlier anti-bullying application made by the applicant. That application was made on 25 September 2014 and involved some of the allegations now made in this matter. The 2014 application was subject to extensive conciliation and on face value significant progress was made in establishing an agreed framework for the applicant to fully resume her employment at the restaurant. This included a series of recommendations made by the Commission and the matter was largely resolved. It was not however formally discontinued at that time given what might be described as some on-going implementation issues and later developments.

[6] Ultimately, the 2014 application was not resolved and subsequently the applicant discontinued that matter and lodged this application. The present application does however rely in part upon alleged conduct raised in the 2014 application and certain actions arising from that matter, about which the parties have provided evidence. In addition, the present application names certain further individuals.

[7] The present application was the subject of both preliminary and conciliation conferences; however it became clear that the matter should be determined by the Commission. The factors leading to that conclusion included the common view of the major parties and the realisation that in terms of the some of the original allegations, the applicant was unable to deal with and move forward without these being formally considered and determined by the Commission.

[8] In that light, the Commission conducted a determinative conference for the purposes of hearing evidence and submissions on the issues in dispute. I note that the applicant remains an employee of the employer but for a combination of medical and personal reasons was not attending for shifts during the conduct of this matter and was in fact working in alternative employment. In these circumstances, and by agreement, the parties provided written submissions following the determinative conference that has extended the normal timeframes for the determination of matters of this kind. The nature and extent of the allegations has also contributed in that regard.

[9] The applicant is an articulate young woman with tertiary qualifications who continues to study as well as work in the hospitality industry. She represented herself in this matter. The employer and persons named were represented by Ms Clarke, of Counsel - with permission of the Commission and without objection from the applicant. Given these circumstances, I provided appropriate assistance and latitude in the presentation of the applicant’s case; particularly to ensure that there was a common understanding of the issues in dispute and to ensure that, as far as possible, the disputed matters were raised with relevant witnesses. 2 I also took steps during the examination of witnesses to inform myself about relevant matters. I must however determine the application based upon evidence that is before the Commission and each party retained full responsibility for their respective cases.

[10] I should also acknowledge that the way in which the case was conducted by Ms Clarke assisted the Commission and facilitated the conference being run in a manner consistent with the fact that the parties have an on-going employment (or in some cases working) relationship.

[11] The applicant commenced employment with the employer as a Food and Beverage Attendant in late 2013. The employer employs approximately 30 staff, many of who are students, casual or part-time workers. The workforce is, by its nature, partially transitory, however the employer does have many long serving staff.

[12] In general terms, the applicant alleges that she has been subjected to unreasonable conduct in the workplace including unfair processes. Further, she contends that certain people in the restaurant have failed in their “duty of care” to her.

[13] The applicant seeks orders from the Commission directed at stopping certain alleged conduct by the group of individuals that include creating obligations for the employer to conduct management courses to be completed by the Supervisors at the restaurant and for all staff to attend training in relation to bullying conduct; the provision of information relating to bullying to be given to all staff at the restaurant; the conduct of an independent investigation into the various allegations; and for all staff to be given job descriptions.

[14] The employer and the group of individuals have denied the allegations of unreasonable conduct and oppose the application on a number of grounds including the contention that there was an absence of repeated unreasonable conduct, part of the group (of employees) have left the restaurant, and that any conduct by itself was reasonable management action taken in a reasonable manner. The employer also contends that it has implemented many initiatives arising from the recommendations made in the 2014 application and that this means that there is no future risk of relevant future unreasonable conduct in this case.

2. The application

[15] Section 789FC of the FW Act provides as follows:

[16] There is no contest that the applicant is a worker and reasonably believes that she has been bullied at work. 3

[17] There is a valid application before the Commission.

3. The cases presented by the parties

3.1 The applicant

[18] The applicant’s allegations canvass a very wide number and range of issues as constituting the bullying conduct. These include over 23 incidents or events and may be grouped into the following broad categories:

[19] Some of these allegations relate indirectly to a workers compensation claim made by the applicant and more directly to an underpayment of wages enquiry that was dealt with by the Fair Work Ombudsman (FWO).

[20] I will deal with the detail of these allegations as part of my consideration of the matter.

[21] The applicant provided a compressive witness statement and gave evidence in the determinative conference. I found that her evidence about the direct facts was clear and generally convincing. Some of her evidence went to matters of conjecture and views about what was reasonable and this latter aspect is ultimately a matter for the Commission to determine. It is also the case that the applicant has a strong awareness of rights and a desire for matters to be dealt with properly but is not always aware of the impact of her actions and behaviour upon others.

3.2 The employer and group of employees

[22] In this case, the employer and the group of employees advanced a common position. I will for convenience describe that position as being that of the employer.

[23] The employer contends that the alleged conduct is not bullying but rather is reasonable management action carried out in a reasonable manner. The employer contends that the Commission has no jurisdiction to consider the conduct of the former Head Chef and former Supervisor as they have ceased working for the employer and as such there is no risk that the applicant will continue to be bullied by these individuals at work. Furthermore, it submits that the Commission has no jurisdiction to consider any matter relating to the applicant’s disputed WorkCover claim, or any complaint relating to an underpayment of wages as this has been “dealt with and dismissed” by the relevant regulator.

[24] The employer accepts that the applicant genuinely perceives herself to be the subject of bullying however it contends that this is a subjective belief not based upon conduct which, when viewed objectively, would amount to bullying. The employer also contends that all action taken by it has been lawful and not absurd or irrational.

[25] The employer further contends that since some of the incidents that involved the two ex-employees, it has extensively worked to develop a comprehensive set of policies about workplace bullying and appropriate workplace behaviour, and provided training in relation to these matters. When the applicant raised further complaints, the employer acted immediately to appoint an experienced workplace investigator to investigate the conduct, however the applicant failed to participate in the process.

[26] The employer further submits that the applicant is not focused on the underlying incidents or alleged conduct that has occurred but rather the handling of those incidents by the employer. That is, the employer contends that the applicant criticised the processes used by the business and made suggestions about how this could be improved rather than focus on the actual conduct and response. Any process that deviated from the applicant’s view of proper process was (wrongly) regarded by her as bullying conduct. Its actions were, in any event, reasonable management action taken in a reasonable manner.

[27] Furthermore, it contends that no evidence was presented from the applicant to suggest that the particular alleged conduct is impacting on her safe return to the workplace. The employer also contends that the applicant is now working somewhere else, and that they have made attempts to have her return to the workplace. Additionally, the employer submits that the applicant has engaged in some bullying behaviour towards one of the named individuals, the Accounts Clerk, and that the applicant is not able to objectively assess her own behaviour and how it might affect others.

[28] The following gave evidence in the form of witness statements and testimony:

[29] I found that each of these witnesses were truthful and attempted to genuinely provide their version of the facts to the Commission. As with the applicant, some of that evidence went to matters of opinion that are properly issues for the Commission to determine.

[30] The former Head Chef and the former Supervisor were directly involved in the 2014 application but did not give evidence in this matter.

4. What constitutes bullying behaviour under the Act?

[31] Section 789FD of the FW Act provides as follows:

[32] There is no contest that the employer is conducting a constitutionally-covered workplace. The employer also accepts that the alleged conduct should be considered to have taken place (if the Commission so finds) whilst the applicant was at work. 4

[33] In GC, the Commission observed as follows:

[34] Further, Hatcher VP in Amie Mac v Bank of Queensland Limited and others 17 (Amie Mac) favourably considered another decision that was consistent with the above approach and made the following observations about the concept of “repeatedly behaves unreasonably” in s.789FD(1)(a):

[35] Earlier in Amie Mac, the Vice President set some of the context for the provisions in the following terms:

[36] I have applied all of the above approaches in determining this matter.

6. The relevance of alleged conduct by the former employees

[37] Before considering the substance of the application it is appropriate to deal with a legal construction issue raised by the employer.

[38] That issue concerns the relevance of the alleged conduct of the two former employees. The employer contends that as these employees are no longer in the workplace there is no risk of “further” unreasonable conduct in connection with them, and that as a result, it was beyond the Commission’s jurisdiction to presently deal with those issues. This arises from the prerequisites that exist for the Commission to make an order established by s.789FF of the Act.

[39] Section 789FF of the Act provides as follows:

[40] It is well established that where there is no risk that the applicant worker will continue to be bullied at work by the individual or group concerned, there is no prospect that the s.789FD application can succeed. 18

[41] In cases where the applicant worker, and/or the individuals or group concerned, are no longer in the workplace, and there is no reasonable prospect of that occurring, it is likely that there will be no relevant future risk. However, s.789FF requires a two stage process and in this case, the applicant is, in effect, claiming that a group of individuals have behaved unreasonably. The fact that some of that group are no longer in the workplace would not appear to prevent that alleged conduct being relied upon to demonstrate the unreasonable conduct required by s.789FF(1)(b)(i) of the Act. That is, alleged conduct by the group (in this case) is the relevant consideration and this includes their conduct and potentially the involvement and/or condonation of others, who remain within the group of individuals continuing in the workplace.

[42] Accordingly, the fact that some of the group are no longer in the workplace might mean that that part of the conduct solely attributable to them cannot be relied upon to demonstrate the future risk component. However, this does not mean that this alleged conduct is irrelevant (or beyond jurisdiction) for the purposes of considering whether there has been bullying conduct.

[43] I note that no orders were, or could be, sought directly against the former employees. That is, they were not parties to the present application and significant natural justice and practical issues would arise if such was contemplated.

7. Has the applicant been bullied at work within the meaning of the Act?

[44] This requires consideration of each of the allegations made by the applicant and the response to those allegations, based upon the evidence, viewed objectively, that is before the Commission.

[45] Before dealing with the specific allegations, it is appropriate to make some findings about the general context in which the events occurred.

[46] Although the employer employs up to 30 staff, it is a relatively informal business conducted by the owners and directors. That is, the business is conducted in practice by Mr JP and his brother, who for personal reasons, has not been actively involved in the business in recent times. Until the preliminary outcomes of the 2014 application were applied, the business had little in the form of formal human resource policies or training for staff or management relevant to prevention and handling of unreasonable workplace behaviour. This informality continues to extend to the reporting arrangements for staff and includes some uncertainty about which employees are supervisors that are capable of giving instructions from time to time.

[47] Before dealing with the various grouping of allegations, it is helpful to understand the following basic chronology of events leading to or surrounding this application:

[48] The applicant remains an employee of the business but has not attended at the workplace for work since February 2015 and has been working for another employer and continuing with her studies.

[49] As would be clear, the preliminary outcomes of the 2014 application have played a role in the subsequent events and can be best summarised in the recommendations issued by the Commission in early November 2014. 19 In making recommendations, the Commission confirmed that no concluded views about the disputed elements of the application had been reached. Rather, the thrust of the recommendations was to focus upon the future conduct of the parties. The Commission did however express the view that it would be necessary for all parties to accept at least some responsibility for the current position and to recognise that each would need to constructively contribute to the resolution.

[50] The recommendations included the following (with names de-identified):

[51] As would be clear from the outlines of the respective cases set out earlier, there is a dispute about whether, and how, these recommendations have been applied by the parties. I will deal with those matters as part of the consideration of the allegations now relied upon.

[52] It is also the case that many of the allegations are interconnected and were made by the applicant in varied forms during the course of her case before the Commission. As such, the following findings of the allegations have been grouped only for convenience and must be seen in the context of the overall findings made by the Commission.

The behaviour of the (former) Head Chef – alleged swearing, name-calling, rudeness and demeaning sarcasm – and lack of proper response to the applicant’s concerns in that regard

[53] The applicant alleges, in effect, that the employer allowed the former Head Chef to engage in unreasonable conduct, which at certain times was directed at her. The unreasonable conduct can be summarised as repeated name-calling, swearing, rudeness and demeaning sarcasm. The unreasonable conduct occurred in early 2014. Examples of the conduct included words to the effect of the following:

[54] The applicant contends that the last example indicated above was said within ear shot of a customer.

[55] It is not in dispute that after one of these comments, the applicant followed the former Head Chef down stairs, via the kitchen, into the basement/cellar. The applicant admits to yelling at the former Head Chef for several minutes and said words to the effect of “I have worked in some bloody good restaurants and I have never met anyone as unprofessional and as incompetent as you. Who the f*** do you think you are. You and your behaviour are disgusting, and no matter how much you swear and abuse me, how disgustingly you behave, I will never ever retaliate in the same way because I am a stronger person than you and you are weak and pathetic.”

[56] The employer contends that the conduct of the applicant in this situation is hardly the behaviour of a person who feels threatened or at risk from someone’s alleged bullying behaviour but rather an aggressor. The applicant indicates that her last comment was “especially absurd” and that she did this as a form of retaliation.

[57] After the incident the then Manager told her never to follow the former Head Chef down to the basement/cellar and that he would deal with it. The applicant contends she did not ever receive an official verbal warning in relation to the incident.

[58] The applicant made a complaint about the conduct of the former Head Chef to JP. The applicant believes that it was unreasonable for JP, , not to take steps to stop or eliminate this from occurring and properly investigate the complaint on behalf of the employer. JP accepted her complaint and told her he would investigate the matter. JP spoke to the former Head Chef about his behaviour and reported to the applicant that he had investigated the matter and dealt with it.

[59] The employer contends that when the Commission is considering the conduct of the former Head Chef it should take into account the busy kitchen environment. The employer concedes that there is no excuse for bad language and that management took steps to eliminate the inappropriate language following the complaint from the applicant. Furthermore, by mid-September 2014 the applicant appeared to be satisfied with the former Head Chef’s behaviour. In relation to the decision by the management not to formally investigate the alleged conduct of the former Head Chef, the employer submits that the decision was reasonable given the conduct of the former Head Chef had stopped after he was counselled. Furthermore, the employer contends that they have not bullied the applicant by not investigating the matter and that by implementing the recommendations that were made in relation to the 2014 application, the applicant has no legal bases for insistence that further measures be taken.

[60] Much of the evidence relating to this allegation was provided in the form of an amended witness statement from the applicant. This was admitted by consent of the employer after the substantive hearing and it did not seek to challenge that evidence. The evidence about the employer’s response was provided, for the most part, by JP and I accept that evidence.

[61] The focus of the present consideration is whether there is relevant repeated unreasonable conduct of individuals in the workplace. Given the positions of the parties, two issues arise in terms of this allegation. Namely, the conduct of the former Head Chef and the response by JP on behalf of the employer.

[62] I am satisfied, based upon the unchallenged evidence of the applicant, that the behaviour of the former Head Chef in early 2014 was unreasonable conduct. That behaviour was directed towards the applicant and the group of workers to which the applicant belonged and was repeated. It is also apparent that at the time there were little if any strategies in place to set appropriate behavioural standards and there was no proper mechanism to deal with concerns about such matters.

[63] I am also satisfied that when the conduct was drawn to the attention of management, some measures were taken to raise the issues with the former Head Chef, albeit that the response was inadequate at that time. I do note that as a result of further developments, the issues were taken more seriously and the behaviour improved to some significant degree. Given that this improvement was noted and then reported by the applicant, it was in my view unnecessary to conduct a formal investigation into the original allegations at that point. The response by JP and others was not therefore unreasonable in that particular respect. Some more concrete steps to establish and enforce appropriate workplace conduct would however have been appropriate.

The staff meeting in June 2014

[64] In June 2014, JP called a staff meeting at which approximately 12 floor and bar staff attended. The applicant alleges that six matters were discussed at the staff meeting, including:

[65] During the discussions about the above matters, JP indicated that some members of the team had been stealing the tips and should this continue to occur then none of the staff would receive any tips. He also indicated that drugs had been found on the premises. JP expressed his disappointment and advised that the persons to who was responsible for bringing the drugs onto the premises would be dealt with and face the consequences of their actions.

[66] Several days after the meeting, the applicant had a discussion with others and was informed about the alleged identity of the person who was responsible for bringing the drugs (marijuana) onto the premises. The applicant was also informed that this person had apparently not been punished in any form.

[67] The applicant’s concerns with these events are, in essence, that the drugs incident was not investigated at all, and that the other issues were intentionally raised by JP in order “to manipulate the emotions of the staff” and to “lead by fear and divisiveness”.

[68] The employer did not accept the characterisation of this issue but did not lead any evidence specifically in relation to this aspect of the case.

[69] Based upon the evidence before the Commission, I find that the making of such allegations in the manner in which it was done, was unreasonable. These were serious allegations and were directed at the applicant and all members of the staff in what might be best described as being an off-handed manner. Further, the failure of JP to follow up and investigate the issues, given the nature of the allegations and the potential consequences that had been advised to staff, was also not reasonable. I would however reject the notion that this was done with the motive claimed by the applicant. Rather, this was a reflection of the absence of proper policies and procedures for dealing with such matters in what was a very informal business organisation at that time.

The denial of an induction for the applicant

[70] In November 2014, the employer made the decision to perform a re-induction of all the staff. This took place in the context of the implementation of the recommendations made by the Commission.

[71] The applicant asserts that she was, in effect, denied the induction training. The employer contends that the applicant was offered the opportunity to attend new induction training in November and December 2014. However, the applicant did not attend the scheduled meetings. The employer also contends that during a meeting between the applicant, the Accounts Clerk and JP on 12 January 2015 the applicant refused to complete the induction until after she had signed her new employment contract. The signing of the new employment contract was to occur after the bullying training had been undertaken by the staff.

[72] Based upon the evidence before the Commission I am satisfied that the employer reasonably offered various opportunities for the applicant to undertake the induction training. The applicant did not do so at the time for various reasons including the dispute about the terms of her “new” employment contract. Whilst that particular stance was not in itself unreasonable, there was no refusal by management to induct the applicant. The conduct of the Accounts Clerk and the employer more generally in making various attempts to have the applicant re-inducted was objectively reasonable in all of the circumstances.

Exclusion from staff meetings including the meeting when the former Head Chef announced his resignation

[73] In November 2014, a general staff meeting occurred in which the former Head Chef announced his resignation from the employer. The applicant asserts she was not told about, nor received an invitation to the staff meeting and she was not told about the resignation by any of the Directors or Management of the employer. The applicant found out about the resignation through other staff members. The applicant felt unfairly excluded from this general meeting.

[74] The employer contends that there is a factual dispute about whether or not the applicant was notified about the general staff meeting. The employer asserted that an invitation was sent out by the former Supervisor to the applicant inviting her to the general staff meeting. The employer further contends that the applicant did not present sustainable evidence of exclusion from any activity. I note that in relation to the existence of the invitation, the applicant relies upon the fact that the employer did not call the former Supervisor to provide to support this assertion.

[75] The former Supervisor is no longer in the business and in that context I do not propose to draw a negative inference from the failure to call her as a witness. It is open for the Commission, but not necessary, to draw such a negative inference where there is an unexplained failure to call evidence. 20 In this case, there is a sound reason for not doing so given that the former Supervisor is no longer employed. However, I must decide this matter based upon the evidence that is before the Commission.21

[76] Whilst I have reservations about the applicant’s characterisation of the conduct of others and herself, I generally accept her evidence about direct facts. In that context, I find that she was not invited to the staff meeting in November 2014. There is insufficient evidence to support the notion that the allegations of exclusion occurred more broadly.

[77] In many circumstances, an oversight of this nature would not be objectively unreasonable for present purposes. However, in the context of the attempts that were being undertaken at the time to have the applicant resume her normal work activities and move forward as part of the team, this action was unreasonable.

The failure to conduct a proper independent investigation into the complaints made

[78] The applicant alleges that the employer unreasonably failed to investigate allegations of bullying conduct even though it was aware of the applicant’s concerns and complaints about bullying conduct. On 9 February 2015 the applicant made a formal complaint in relation to bullying conduct that she alleged had occurred. The details of that complaint included the following elements:

[79] The employer immediately agreed to investigate the complaint.

[80] The employer engaged Ms SB to conduct the investigation. Ms SB is an employee of the legal firm in which NL is a Partner. The applicant raised concerns in relation to the independence of the investigation given the working relationship between NL and Ms SB. The applicant’s concerns were in essence that:

[81] The applicant also contends that Ms SB did not qualify as an “impartial investigator” as required by the employer’s new Human Resources Policies and Procedures Manual. Furthermore, there were limitations placed on the proposed investigation which were to exclude all conduct which formed part of the 2014 application.

[82] The applicant appears to accept that an investigation into the conduct could not take place without her being interviewed, however she contends that the investigation could take place without her consent and that the arrangements were made by the employer with the motive that it could then rely upon her concerns and, in effect, avoid any investigation.

[83] The employer submits that the appointment of Ms SB was reasonable in all the circumstances, especially given the investigation could not be conducted internally by the employer. The only person in employer’s management that could be the ultimate decision maker was the other owner/director (Mr TP) as the applicant has not made a claim against him. Mr TP did agree to be the ultimate decision maker once Ms SB had completed the investigation. The employer contends that it responded quickly to the applicant’s complaints and instigated an independent investigation. This, it argues, was reasonable management action. The employer further contends that the fact that the applicant demanded a different approach, which was not provided, does not make the decision unreasonable. Furthermore, the fact that the employer decided to not investigate the un-particularised complaints of the applicant in the circumstances where she refused to meet with the investigator, was not unreasonable.

[84] Two issues arise from this allegation. Firstly, the appointment of Ms SB as the person to investigate the applicant’s complaints. Secondly, whether the investigation should have been conducted and completed despite the applicant’s non-cooperation.

[85] It was appropriate that an external investigator be appointed given that allegations had been made, at one point or other, against most of the management team in the context of what was a relatively small business. Mr TP was not in a position to do so for reasons I need not outline here.

[86] In most circumstances, the appointment of another solicitor in a firm that is already advising the employer would not of itself be unreasonable. That is, NL had represented the employer and in that capacity had presented a defence to the 2014 application. However, he was doing so as a representative and was not personally expressing views about the facts of the matter. I also note that NL was very constructive in the various conferences conducted in the context of the 2014 application and did much to contribute to the recommendations that were made.

[87] In that light, and noting that a solicitor in the context in which Ms SB was appointed would be required to form his or her own views, in the normal course there would be nothing unusual about her undertaking the proposed role. That is, this was an investigation being done by a person with appropriate skills and experience on behalf of the employer by someone that was not involved in the allegations. It was also being conducted to inform the one member of management not involved to allow him to make an assessment of the allegations. It was never going to be a fully independent investigation in the full sense of that expression 22 however in the normal course, an investigation conducted in this manner would not be inappropriate.

[88] However, in addition to the firm and NL representing the employer in the related proceedings, NL was at times acting, in effect, as part of the management in that he was the contact point for the applicant on most matters, was meeting with the applicant and relaying information and instructions well beyond the normal role of a representative solicitor. In that particular context, there was insufficient separation between the roles of Ms SB and NL.

[89] The appointment of Ms SB was therefore unhelpful in that particular context but may not, in other circumstances, have prevented an investigation being done at least of the kind I have outlined above. I would add that I do not make any criticism of Ms SB or her conduct or capacity.

[90] In terms of the investigation being completed despite the refusal of the applicant to participate, in some cases it is necessary and appropriate to conduct an investigation despite the non-cooperation from a complainant or others involved. However, in this case, it was reasonably necessary for any investigator to interview the applicant as the details of the allegations and her perspective were critical. Further, given the nature of the issues raised and the relationships within the workplace that were involved, any investigation that did not include an interview with the applicant would never have been seen by her or others as being satisfactory or appropriate.

[91] I also note that as a result of these proceedings, the bulk of the allegations have now been properly scrutinised by the Commission.

Requirement for a fitness for work certificate/full medical clearance in May 2015

[92] Following the disciplinary process, the employer requested that the applicant provide what was, in effect, additional certification that she was medically fit to return to work. This occurred in the context of the provision by the applicant of what might be best described as a general medical clearance.

[93] I note that at one point, the employer sought the medical clearance to confirm that the applicant could safely return to work “without any harm to you or risk of any further incidents”. 23

[94] On 1 April 2015, the applicant’s representative provided an updated medical certificate and provided some further information about why there were some limitations on the applicant’s hours of work and other matters. The restrictions related to the number, length and scheduling of the shifts; the requirement for the applicant not to be supervised by anyone against whom a bullying allegation had been made, and the requirement to advise the applicant of the name of the supervisor before the commencement of the shift.

[95] During the following weeks various exchanges took place regarding the medical condition of the applicant, the employer’s requirements for a more specific medical clearance and the capacity of the applicant to attend a disciplinary interview.

[96] In the context of continuing concerns about the scope of the clearance sought by the employer, on 13 May 2015, NL wrote to the applicant’s (workers compensation) representative and suggested a slightly different form of certification; being that the applicant’s Specialist certify that she was fit to return to work within certain parameters associated with her working hours and how directions would be given, and that there will be no risk to her health and safety.

[97] On 5 June 2015, the employer was advised that the Specialist would not provide certification in line with the wording suggested by the employer. On 24 June 2015, further correspondence was sent to the applicant’s representative outlining that the medical certificate provided did not contain all of the necessary conditions.

[98] The applicant contends that the type of medical certification that has been required by the employer was unreasonable in that it could not be given in such broad terms. Furthermore, the applicant submits that it was unreasonable for the employer not to accept the medical certificates that were provided by the “WorkCover” treating doctor and another General Practitioner.

[99] The employer contends that as a small business it would be impossible for the applicant to not interact with the managers and other employees in some manner or form. The employer subsequently proposed further, more narrow, conditions in an aim to facilitate her safe return to work.

[100] I find that some more specific medical clearance was reasonable given the nature of the business and the fact that the applicant would need to interact regularly with those that she had alleged had bullied her in the past. Further, there were some signs during the disciplinary process in March 2015, and an earlier return to work, that the applicant was distressed by these events and discussing the related issues. In addition, the medical clearance that had been initially provided cleared the applicant only to work the particular hours that she preferred and there was no evident objective basis for the clearance being limited in that way.

[101] In the course of the various exchanges that took place between representatives of the parties, the positions and requirements from each perspective were better explained and refined.

[102] On that basis, whilst the original request by the employer for the full medical clearance was perhaps unreasonably broad in its terms, the later refinement and clarification of the requirements was not so given the practical circumstances at the workplace.

The lack of clarity about supervision and management including leading to issues about alleged insubordination and the inability to raise issues directly with management (having to go through NL)

[103] The applicant contends that she was denied information necessary to work, which included being denied access to supervision and information about the identity of the supervisors from time to time. As such, directions from persons who are not officially in supervisory roles may have been ignored. The applicant contends that this uncertainty caused the situation between herself and other staff members who thought they could give directions.

[104] What is clear is that JP is the overall manager and supervisor. However, the evidence reveals that there is no clear hierarchy at the workplace as to who is, and who isn’t, a shift supervisor and has responsibilities in the absence of JP. It is noted that depending on the circumstances, different people will have different responsibilities at different times and there was, and is, confusion amongst the staff as to who acts as a supervisor for various purposes.

[105] To the extent that this has led to any issues concerning the conduct of the applicant and others in the workplace I have taken this into account in my findings. There is also an on-going issue that should be clarified in the interests of the business and the staff.

[106] The appointment of NL as the point of reference on certain matters was reasonable given all of the circumstances including the allegations made against JP and others. Indeed, at various stages during 2015, the applicant was seeking, under medical advice, that she not have dealings with JP in the workplace. However, with the establishment of more formal policies and procedures which confirmed certain roles and responsibilities for supervisors and managers, some clarification as to who was undertaking those roles within the workplace from time to time was, and is, required.

[107] This was particularly so in the context of the applicant’s potential return to the workplace in May 2015, given that the medical clearance included the need to specify the identity of the supervisor.

The completion of the online Responsible Service of Alcohol certification application on behalf of the applicant

[108] At some point, the Accounts Clerk completed the online Responsible Service of Alcohol (RSA) certification for the applicant. The RSA certification, or at least the training, is required under the relevant liquor licencing legislation. 24 The certification was done without the permission or knowledge of the applicant. The applicant submits that this is an example of the employer management not acting appropriately.

[109] The employer submits that they were “looking after” the applicant and ensuring she had the necessary certification to perform her role. Furthermore, they point out that the applicant stated in evidence that she was not sure whether this would actually constitute bullying behaviour.

[110] The actions of the Accounts Clerk in that regard were not appropriate and should not have occurred. That is, it is intended that the employee personally undertake the training and accreditation exercise. It was however intended to benefit the applicant and it would have had that result given her many absences from the workplace and the desirability of retaining RSA certification. In the circumstances, I do not consider that this action was, of itself, unreasonable, at least for the purposes of s.789FD of the FW Act.

The requirement for the applicant to work “extra hours” upon her return to work in late 2014/early 2015 and related employment contract conditions

[111] During the middle of 2014, the employer gathered details about the details of hours worked by all the permanent staff at the restaurant given what it saw as the opportunities for staff to take on some additional hours. In August 2014, the employer met with the applicant in relation to her hours. When preparing for the meeting and it was discovered that the applicant was, according to some records held by the employer, due to work 26 hours a week. The applicant was however working 24 hours a week.

[112] A meeting occurred between the applicant, JP and others on 20 August 2014. JP explained the purpose of the meeting including the desirability of permanent staff working more hours to ensure their continuity of work. As part of the conversation it was noted that the applicant was being paid for 26 hours of work and had only been working 24 hours per week. The applicant indicated that she only wanted to work 24 hours per week due to her studying commitments and that apparently at the time when she began at the restaurant the then Manager had put her on 26 hours as it had fitted better with the roster. The applicant questioned the reasons behind increasing part-time hours and what was good for the business.

[113] The applicant contends that she left this meeting feeling as if she had jeopardized her continued employment by declining extra shifts and her other comments in relation to the matter.

[114] However, the weight of evidence is that the employer did not force the applicant to take on more hours. The outcome of the meeting was that the applicant would continue on her normal hours and the roster and related pay was not changed in any way.

[115] I note that as part of the mediation conducted by the Commission in early November 2014, it was agreed that the applicant would work reduced hours (compared to her on-going commitment) due to her anxiety about returning to the workplace. It was proposed that an interim contract be confirmed with an intended expiration date of 30 November 2014.

[116] On 28 November 2014, the applicant, NL and JP met to discuss the end of the applicant’s interim contract. This meeting resulted in the interim contract being extended to 28 December 2014.

[117] In early January 2015, the applicant, JP and the Accounts Clerk met to discuss the interim contract, which by then had passed its intended period. The employer advised that it needed the applicant to return to her original hours as she was effectively an extra person in the restaurant on some shifts as permanent staff were already rostered on for those shifts. The applicant responded that she was not able to return to her original hours at this stage. JP requested that the applicant make a reasonable proposal regarding her hours of work. The applicant responded that she would not be in a position to go back to her original hours until after the anti-bullying training had been undertaken by the staff. At the conclusion of the meeting, the Accounts Clerk typed a letter for the applicant to sign that detailed that she would return to her original hours after the anti-bullying training had been completed. The applicant took the letter and added her own terms to it, which included that the employer would conduct a wage review in line with the Award. This was not agreed by the employer and in effect, the applicant continued to work her interim hours at least until the anti-bullying training was conducted.

[118] On 11 and 16 February 2015, the applicant was sent a letter detailing that the anti-bullying training had been completed and that the interim contract had now concluded. The applicant was advised that her original hours would apply from Monday 23 February 2015. The applicant did not accept what she considered to be a unilateral direction. This is the context in which the roster document was altered by the applicant, with the subsequent warning being issued. I will return to these specific issues shortly.

[119] There are two elements to this group of allegations. Firstly, whether the applicant was unreasonably required to work additional hours in late 2014 and early 2015. Based upon the evidence before the Commission this did not happen and I do not consider that the actions of JP or any other person at the workplace was unreasonable in that context.

[120] Secondly, whether the change to the hours of work back to the original contract was unreasonable. This second aspect is directly related to the dispute about the WorkCover claim and the requirement for the medical clearance. Putting aside the applicant’s medical condition, the resumption of the applicant’s original hours, in the context of the steps taken by the employer in light of the Commission’s recommendation was reasonable and consistent with the recommended approach. However, the applicant’s apparent medical condition changes the basis of that position and I have dealt with that aspect elsewhere in this decision.

The complaint to the FWO and the nature of apology made by the Payroll Clerk

[121] On 27 August 2014, the applicant contacted the Accounts Clerk in relation to her pay and how her hours were worked out. The applicant also queried why her superannuation was being paid into a particular fund that she had not signed up to. The Accounts Clerk attempted to contact the applicant in relation to her queries but did not receive a response. The applicant was not attending for work on a regular basis at this time.

[122] In early October, the applicant made a complaint to the Fair Work Ombudsman (FWO) in relation to issues with her pay and related matters. The FWO suggested that the Accounts Clerk meet with the applicant to try and “nut out” the issues. The Accounts Clerk arranged a meeting with the applicant and also contacted staff at the employer’s industrial association to ensure that everything had been done correctly in terms of the applicant’s pay. During this conversation, the Accounts Clerk realised that some matters were not being done correctly, including requiring full time and part time employees to formally complete time books, and that staff were not being given payslips. These issues were apparently rectified.

[123] On 15 October 2014, the Accounts Clerk and the applicant met in relation to the FWO complaint. During the meeting, the Accounts Clerk advised that the applicant had an annualised salary based on 26 Hours a week, however her payslips recorded that she was working 24.5 hours. The applicant indicated that this should reflect 24 hours not 24.5 hours, as she had only worked 24 hours. The Accounts Clerk proceeded to discuss the applicant’s annual leave and personal leave and advised that the wrong amount, in favour of the applicant, had been deducted from her annual leave accrual on two occasions. The Accounts Clerk indicated that as these calculations were in the applicant’s favour this would not be changed. The discussion turned to penalty rates and their applicability to the applicant given what was described as the annualised salary. The applicant strongly expressed her concerns about this concept. The Accounts Clerk considered that that the applicant’s approach was very aggressive and ended the meeting despite the applicant’s resistance to leaving. The Accounts Clerk had prepared a new contract for the applicant; however, due to the meeting ending abruptly the applicant did not receive this at the time.

[124] During the course of the various exchanges, the Accounts Clerk alleged that the applicant had been “overpaid”. Whatever the correct legal position, which is not a matter that findings can be made about given the evidence and the Commission’s present role, this characterisation would not have been correct in the sense that the applicant was being paid her entitlements under the contract. I note that whatever other concerns may have arisen from the earlier payroll practices of the employer, it is evident that the FWO did not seek to take any action in relation to any alleged underpaid.

[125] Following this, a mediation session was conducted by the FWO in relation to the pay and related issues. As part of the outcome of that mediation, it was agreed that an apology would be issued to the applicant for the claim that she had been overpaid. The Accounts Clerk personalised the apology as it had been her mistake. The applicant was not comfortable that the apology letter was completed in this manner and believed that it should have been expressly given on behalf of the employer. The applicant also asserted that she was unsure if the Accounts Clerk had the relevant authority to act on behalf of the employer.

[126] There is no substance in this allegation as it relates to the apology. The apology letter was provided by the Accounts Clerk as the “payroll officer” and whatever her formal position within the company, it was more than reasonable in the circumstances. I note that whilst some of the payroll issues being raised by the applicant were legitimate, her conduct and approach to the Accounts Clerk at times in this process, and her insistence on a revised apology, were unreasonable.

The employee letters of complaint against the applicant being “coerced” by management

[127] The applicant was provided with three complaints by her colleagues in relation to her conduct. The complaints were in relation to the applicant using their personal mobile numbers to contact them in relation to her proceedings against the employer. This occurred in the context of the phone numbers being displayed on the roster for the use of management should they need to change a shift.

[128] The applicant felt that the three complaints were written in a similar manner and indicated that she had heard an unsubstantiated rumour that the employer had asked the three employees to write the complaints against her. Following the complaints, the applicant suggests that she is too frightened to engage with at least one of the employees about the complaint in case it causes further anxiety. The applicant also feels that no action was taken in relation to the complaints against her.

[129] There is no reliable evidence that any of the employees were coerced into making these complaints. On the contrary, the evidence before the Commission is that the employees had these concerns and raised them willingly with management. It is also evident that they did not wish to be drawn into the issues.

[130] It is however likely that these complaints were taken more seriously because of the context in which they were made.

Directions issued to the applicant by the former Supervisor on 20 October 2014 in relation to the service of wine

[131] On 20 October 2014, the applicant was attending to customers in the restaurant. The former Supervisor approached the applicant and directed her to serve some wine to the customers. This wine was in a bottle that was already open and it is contended that the customer had requested that it be served. At the time, the applicant was opening a second bottle to serve to the customers. The applicant contends that the customers had apparently declined the first wine and preferred the second unopened wine.

[132] The applicant contends that the former Supervisor proceeded to argue with her about this and directed her to serve the first wine. By the time this conversation had finished, the customers had poured the first wine for themselves. The applicant felt that the former Supervisor was berating her for a long period in front of other staff. The applicant removed herself from the restaurant section and asked Mr TP, by phone, if she could go home. The applicant states that he indicated to her that she should go back inside and finish her shift. However, she felt she could not do this. The former Supervisor was standing near the applicant during the phone call.

[133] The applicant considers that she was victimized, humiliated and intimidated by the former Supervisor’s actions including that the former Supervisor should not have been near her whilst she was on the phone.

[134] The former Supervisor did not give evidence in this matter and has left the business. The only direct evidence about this event is that given by the applicant. That evidence was very subjective and even based upon that version, I do not consider that the conduct was unreasonable, at least to the extent as contemplated by s.789FF of the FW Act. The former Supervisor was in a position to give directions and had a direct interest in the applicant’s discussion with Mr TP.

[135] I also note that Mr TP was unavailable during this time and as such, following this event JP instructed NL to attend to most of the correspondence and dealings with the applicant.

Response to an incident with a member of the public

[136] An incident apparently occurred between a staff member at the workplace and a well-known vagrant member of the public. The applicant understood from second hand accounts that a staff member may have been struck in the head by the vagrant. The applicant was concerned that if this event did occur, and the staff members were still dealing with the individual, there may be a risk to health and safety.

[137] The applicant contends that it was stressful to think that she could be assaulted at work by this individual. The applicant felt that the matter wasn’t reported properly to staff members and that the response was not risk-managed.

[138] Based upon the very limited evidence before the Commission, it is difficult to make any findings about the actual incident or the reasonableness of any response.

The incident with the Accounts Clerk about wearing open-toed footwear

[139] On 13 February 2015, an incident between the applicant and the Accounts Clerk occurred and it related to the Accounts Clerk wearing open-toed footwear in the restaurant. The Accounts Clerk was called in to cover the lunch shift but was only in the restaurant to answer the phones and do some of the till work, but was not working in kitchen or on the floor.

[140] The Accounts Clerk was standing near to the diary and till area and the applicant was in the same area. The applicant said words to the effect of “Is it noted in the OHS manual that you are allowed to wear sandals to work?” A conversation between the two took place in which the applicant repeatedly queried if it was ok to wear sandals to work and where it was stated in the policies. The Accounts Clerk spoke to the new Head Chef during this time and said words to the effect of “can you please come into the bar because I am getting harassed”. At this time, TP also walked into the front area. TP asked if everything was ok, and the Accounts Clerk left the area to go to the back office as she was in tears.

[141] The applicant asked TP about the footwear requirements and he responded that if she is not serving food or working outside of the “post mix” drink section then it was “ok”. The applicant then asked TP who her supervisor was and he replied that it was him. The applicant also asked who the Responsible Person would be and TP responded that it would be the Accounts Clerk. However, TP apparently reconsidered and decided it was more appropriate that someone else would come in to be the Responsible Person.

[142] Following this, the Accounts Clerk worked on the till and answered the phones. During a telephone call, the applicant asked the Accounts Clerk to obtain a bottle of drink that was in an adjacent shelf and the Accounts Clerk told the applicant that she was unable to do that and she would have to get it herself.

[143] The applicant felt that the Accounts Clerk’s behaviour was unreasonable, humiliating, victimizing and unprofessional. The applicant felt that the Accounts Clerk involvement of the Head Chef and TP, was embarrassing her. The applicant indicated that she felt stressed that should she break a glass near to the Accounts Clerk and it will be interpreted as being deliberate. The applicant felt that this created a “risk to health and safety not only to the Accounts Clerk’s feet but also to her soul”.

[144] Associated with these events, the applicant observed the Accounts Clerk talking on the phone after the incident and in a subsequent written response to the employer about the matter, described the Accounts Clerk’s conduct as being consistent with showing shame for her actions. A photo demonstrating “shame” was also provided to the employer. The applicant further stated that she believed the Accounts Clerk’s reaction to her question about the footwear was a kneejerk one which was probably due to her feeling of resentment towards the applicant. The applicant noted that the resentment may have been because she had questioned the Accounts Clerk on her competence in calculating the applicant’s wages and other matters and had been “forced” to apologise as a result of the FWO mediation.

[145] It is clear that the Accounts Clerk was deeply upset by the interaction and lodged a formal letter of complaint about the applicant. This complaint formed part of the allegation letter that was sent to the applicant on 20 February 2015. It is also clear that what the applicant had observed was the Accounts Clerk being genuinely upset about the exchange and seeking some solace from her husband on the phone.

[146] It is reasonable to assume that the conduct of both the applicant and the Accounts Clerk was influenced by the tension in the workplace as a result of the bullying allegations. The approach of each involved should have been different but I do not consider that the Accounts Clerk’s conduct was unreasonable when considered in context. The applicant’s initial approach, although arguably well intentioned, did in my view cause unnecessary distress to the Accounts Clerk which was compounded by the nature of the response that was provided by the applicant as part of the disciplinary process.

Disciplinary action taken – include the initial warning by the former Supervisor on 15 September 2014 and the subsequent conduct by JP and NL

[147] It is not necessary to traverse all of the history and events concerned with the warnings that have been given to the applicant by the employer. I have had regard to all of the evidence touching upon the allegations of unreasonable conduct raised by the applicant in that context.

[148] Much of the broader context has been discussed above and it is sufficient for present purposes to provide an outline of the major events before dealing with the major concerns.

[149] An incident occurred on 16 February 2014, which resulted in the applicant verbally expressing her views to management in front of staff and customers. I find that this included the applicant calling the former Supervisor a “bitch”. The former Supervisor gave the applicant a verbal warning, with the support of JP. A “Notice of Warning Verbal Warning” was completed on 17 February 2014 and signed by the former Supervisor and JP (but not given to the applicant) and contained the following:

[150] The employer introduced new House Rules in early September 2014. The House Rules included the following requirements:

[151] The House Rules related to the following requirements:

[152] On 10 September 2014, the House Rules were initially distributed to staff and a meeting was conducted by the former Supervisor to inform the staff of the new rules. The staff had 24 hours to review the House Rules and seek any advice. It was a requirement that all staff sign the House Rules. The applicant initially refused to sign the House Rules on the basis that she considered them to be “illegal”. The applicant did subsequently sign the House Rules on 13 September 2014.

[153] On 14 September 2014, the applicant further discussed with the former Supervisor that she believed that the House Rules were illegal and that should not be circulated amongst the staff.

[154] In early September 2014, it was brought to JP’s attention that the applicant was apparently accessing coffees without first seeking permission. I note that the employer had a long standing practice that staff were able to have a coffee however they were required to seek permission first. The consumption of food and drink during shifts was later included in the House Rules. The former Supervisor approached JP in relation to her concerns and they decided to proceed with a formal warning.

[155] On 15 September 2014, the former Supervisor convened a meeting with the applicant in relation to her alleged conduct. The applicant was not given any notice about this meeting and thereby did not have the option to have a support person. The applicant was presented with the “notice of verbal warning” referred to earlier and a written warning dated 15 September 2014. The written warning stated as follows:

[156] The applicant noted that the written warning was pre-prepared, and felt that during the meeting she was not allowed to respond to the warnings, the warnings were unclear and no counselling was provided to help facilitate an understanding of what was considered appropriate and reasonable performance. It was reported to JP that the applicant was not cooperative in the meeting. The applicant left the meeting and did not return to work for a period after that time.

[157] There may be some issues about the precise terms of the House Rules and they may have operated unreasonably if applied literally. There was no proper basis advanced as to why the House Rules were “illegal” and the nature and manner of the applicant’s response in that regard was disproportionate and unhelpful.

[158] In general terms, the warnings provided were also reasonable in the circumstances; however the lack of notice about the disciplinary meeting was not appropriate.

[159] On 28 November 2014, a meeting occurred between the applicant, JP and NL in relation to the applicant signing a further interim variation to her employment contract. A discussion arose in relation to the implementation of the recommendations made by the Commission on 4 November 2014. The applicant sought clarification about the timing and implementation of the Commission’s recommendations and in particular, when the anti-bullying/grievance policy would be completed. The applicant expressed a view that the recommendations should have already been implemented. The employer confirmed that the policies were in the process of being updated and that the recommendations would be implemented in an appropriate manner. The applicant was not satisfied with this answer and left the meeting. JP called the applicant after the meeting asking her to return to work to discuss what had occurred during the meeting. The applicant declined and the phone call was terminated. NL then further wrote to the applicant and detailed the points raised in the meeting, including that the employer was undertaking to implement the new policies in January 2015. 25

[160] During January and February 2015, JP had sought clarification about the applicant’s intentions in relation to her complaints and her continuing to work for the employer. During one of the detailed conversations, the applicant pressed the view that the parties should move forward with the recommendations. Nothing further was resolved.

[161] On 13 February 2015, another employee was called into work to replace the Accounts Clerk. The applicant noted that the roster being displayed had additional shifts. These were in line with the employer’s view about the post interim variation arrangements but contrary to the applicant’s expressed position. The applicant asked the other employee why the roster had changed, to which he responded he did not have the authority and to discuss the issue with management. After a short period, the employee witnessed the applicant taking down the roster and then again asked as to why it had changed. The applicant then manually changed the roster to record her view of the proper arrangements.

[162] On 20 February 2015, the employer sent the applicant an “allegation letter” and requested that she was attend a meeting on 27 February 2015. The letter contained the following allegations:

[163] Following this event, the applicant did not attend work for a further period.

[164] On 27 February 2015, the disciplinary meeting involving the applicant, JP and NL was conducted. During the meeting, the applicant produced a medical certificate for the period of 23 February 2015 to 2 March 2015 and a “WorkCover” medical certificate. However, the applicant did not have a medical certificate for 20 February 2015. The applicant appeared to begin to have a panic attack and left the meeting. The meeting ended before full discussions occurred and the disciplinary process was not completed.

[165] On 1 May 2015, the disciplinary meeting resumed and in attendance were the applicant and her legal representative, JP and NL. The applicant was given the opportunity to respond to the allegations and at the conclusion of the meeting. The applicant’s return to work was also discussed. Additionally, NL presented the applicant with another complaint from a staff member in relation to the applicant’s behaviour. During the meeting, the applicant sought to raise other issues that were said to relate to work health and safety but the employer representatives did not consider that it was appropriate to discuss these at the disciplinary meeting.

[166] On 5 May 2015, the employer sent the applicant a letter detailing what it considered to be the outcome of the disciplinary process. This included that the applicant was given a first and final warning in relation to allegation 2; that being her conduct of changing the roster that resulted in undermining management. It was noted that if this conduct occurs again it could lead to her termination of employment, and the applicant’s working hours were confirmed. In relation to allegation 1, the employer formed the view that she had a valid reason for not attending work however should she fail to give notice again in good time it could lead to further disciplinary action. Also, no further action was to be taken by the employer in relation to allegation 3. Furthermore, the letter confirmed that a medical certificate would need to be obtained if the applicant was absent from work. It was also recorded that both parties agreed to work together to ensure that the applicant was able to make a successful return to work.

[167] Following the disciplinary meeting, the applicant has not returned to work.

[168] In general terms the warnings about the applicant’s demeanour and approach to the former Supervisor and the manner in which concerns were raised about the House Rules were reasonable. The applicant’s action in changing the roster document was in the context of on-going discussions about the return to normal working hours. It was legitimate for the applicant to raise her concerns about that, but not in that manner. The employer’s conduct in confirming allegations of inappropriate conduct in that regard with the applicant, combined with the further invitation to discuss the proposed hours and an opportunity to provide a detailed response, was reasonable.

[169] The issues arising from the incident with the Accounts Clerk about the wearing of open-toed footwear was also handled in a reasonable manner.

[170] At this stage, the response of the employer in relation to the above issues has not been disproportionate.

[171] I have outlined earlier the fact the NL was engaged by the employer to play a direct role in dealing with the applicant at one point. This included, being the contact point in lieu of management to a significant degree. I have also found that this approach was reasonable given the unique circumstances within the workplace and the further issues that had been raised by the applicant. The applicant raises a number of issues arising from this development.

[172] In addition to the issues dealt with elsewhere in this decision, the applicant raises concerns about having to attend meetings involving NL in circumstances where she had already advised him, and others, that she felt intimidated by NL’s presence. Further, the applicant raises concerns about the fact that after the aborted disciplinary meeting on 27 February 2015, there was no follow up with her about her state of mind or health.

[173] In regard to these issues I have found as follows:

[174] I have not set out all of the details of the disciplinary actions and exchanges between the parties. There can be little doubt that this involved management action. The question is whether that conduct was reasonable having regard to the qualification in s.789FD(2) of the FW Act. For reasons set out earlier, this includes a consideration as to whether the action was reasonable and whether it was conducted in a reasonable manner. These aspects must also be considered in the context of the findings made in relation to the many related issues and in the overall context in which the action took place.

[175] I will return to these issues as part of my conclusions.

Unreasonable failure to take reasonable steps to eliminate or minimise risk of bullying – includes the alleged delay in implementing the recommendations and failure to enact the recommendations and policies in practice

[176] These allegations raise more general issues associated with the overall conduct of the workplace and other issues. This jurisdiction considers the conduct of individuals in the workplace rather than that undertaken by the corporate entity that is the employer. In this case I have taken these more general issues into account in terms of the conduct of JP and other individuals in the workplace.

[177] The applicant alleges that the employer has failed to take reasonable steps to eliminate or minimise the risk of bullying in the workplace. Furthermore, the employer has failed to use appropriate resources or processes to eliminate or minimise the risks. Specific examples of this include what was described as being the employer’s delay in implementing the recommendations of the Commission including the development of a policy that outlined the appropriate workplace behaviour and grievance procedure.

[178] In this regard, I note that the recommendations were issued in early November and the policy was given to staff in early February 2015. The policies were given to staff at the same time as they attend a workplace bullying training session. The policies were comprehensive and dealt with a series of related standards, policies and human resources arrangements, many for the first time. The decision to do a comprehensive job and to introduce these along with specific training was appropriate and I do not consider that the delay in doing so was unreasonable.

[179] In addition, the applicant contends that the employer failed to enact recommendation two, which related to implementing the above policies and monitoring compliance, as the employer did not counsel the persons named in the 2014 application. Moreover, the employer did not take any steps to carry out recommendations 4, 6 or 7. Those concerns being that the former Head Chef did not acknowledge his conduct, a review of the warnings issued to the applicant has not occurred, and a written understanding has not been developed and signed by all parties.

[180] Recommendation two was concerned with the implementation of the new polices and the lack of “counselling” about the 2014 issues was not in general terms unreasonable because, other than with respect to the issues associated with the former Head Chef, the entire concept was for the parties to concentrate on future conduct and arrangements.

[181] The recommendations concerning the former Head Chef were designed such that acceptance of the recommendations would in effect confirm the necessary mutual acknowledgements. No formal process was required. It is however not clear whether the former Head Chef ever provided a response. The approach in relation to the warnings that had been given to the applicant was not that they be immediately reviewed. Rather, that the applicant be given an opportunity to record her version of events and that they be reviewed over time. Subsequent events over took these elements.

[182] I also note that in the absence of a successful return to the workplace and the fact that new issues arose, the parties did not develop and agree upon a comprehensive written understanding to formally resolve the 2014 application. All parties bear some responsibility for that outcome.

[183] I have already dealt with the many other aspects associated with these allegations in my consideration of other matters.

Conclusions on the nature of the conduct

[184] I have found that there were some elements of potentially relevant unreasonable conduct. These include:

[185] Without detracting from the comprehensive discussion outlined earlier in this decision, it is necessary for the Commission to determine whether there was repeated behaviour, when viewed objectively, which represented repeated unreasonable conduct that created a risk to health and safety. In making my various findings, I also take into account the qualification that reasonable management action taken in a reasonable manner does not constitute bullying conduct. 26

[186] In Harpreet Singh 27 I dealt with the implications of the need for the unreasonable behaviour to be repeated.28 Having reviewed the authorities discussed earlier in this decision the following conclusion was drawn:

[187] On that basis, the unreasonable conduct as I have found it to be involves a group of individuals and although it involves a range of behaviours, it is relevant to the overall consideration of bullying conduct.

[188] In terms of the risk to health and safety, the fact that the applicant is presently unfit for work and has been certified as such by her treating medical practitioners is relevant and indicative of risk. It is not however conclusive in its own right. This arises because those practitioners are dealing with the combined impact of a range of work and non-work factors upon the applicant and I need to assess the risk based upon findings of fact made in this matter about the actual unreasonable conduct.

[189] Further, for reasons outlined earlier, risk to health and safety means the possibility of danger to health and safety, and is not confined to actual danger to health and safety. The ordinary meaning of ‘risk’ is exposure to the chance of injury or loss, and for present purposes, the risk must also be real and not simply conceptual. In that regard, whilst elements of conduct might not create a relevant risk in isolation, it is the overall effect and context of the behaviour as found by the Commission which must be assessed.

[190] It would be evident from my earlier findings that I have found that a number of the allegations about unreasonable conduct were not supported by the evidence or were not of a character to fit within the meaning of bullying conduct established by the FW Act. In terms of those allegations that have been substantiated, I have considered these together having regard to the Commission’s present statutory charter. 29

[191] On fine balance, I am satisfied that there was sufficient relevant unreasonable behaviour towards the applicant and/or the group of workers to which she belonged whilst at work to meet the requirements of s.789FD of the FW Act. However, I note that much of that behaviour occurred in a particular context that is now different and this will have an impact upon the capacity and appropriateness of any orders that might be considered in this matter.

8. Orders

[192] I have earlier set out the terms of s.789FF of the FW Act. Having found that the applicant has been subject to relevant unreasonable behavior at work by an individual or a group of individuals, I need to consider whether there is a risk that the applicant will continue to be subject to such behavior at work by the individual or group. 30

[193] Further, I must consider the final or interim outcomes arising out of an investigation, any procedure available to the applicant to resolve grievances or disputes, any final or interim outcomes arising out of any procedure that is available to the applicant, and any matters that the FWC considers relevant. 31

[194] I note that any orders that might be considered by the Commission in an anti-bullying application could deal with specific future conduct of relevant individuals, including the applicant. In addition, orders might be considered that go to the broader conduct within, and culture of, a workplace. These could include the establishment and implementation of appropriate anti-bullying policies, procedures and training, which would include confirming appropriate future conduct and behaviour. 32

[195] Having contemplated the statutory considerations and the facts of this matter, I am not presently persuaded that I can, and should make orders in this matter. My reasons for that view include:

[196] Accordingly, it is appropriate that I hear further from the parties on these and any other developments that may impact upon the determination of the power and discretion to make any orders. These developments might well include the intention of, and capacity for, the applicant to resume work with the employer and whether a future risk is present given the introduction of the initiatives since the recommendations were made in the 2014 application.

[197] In addition, I would be informed by any conditions that might apply to any return to work arrangements being contemplated in connection with the applicant’s workers compensation claim. I would also need to consider the capacity for the employers’ own polices, if applied in light of the findings made in this decision, to advance a proper outcome.

[198] Further, the parties may well seek to update their position on all of the above issues in light of the various findings made in this decision.

9. Conclusions

[199] For reasons set out above, it is appropriate that I hear further from the parties before finally determining this application.

[200] Arrangements will be made for a directions conference to be conducted in the near future.



L P on her own behalf.

K Clarke, Counsel, with permission, on behalf of the employer and the persons named.

Hearing details:



17 July.

Final written submissions:


5 and 27 August 2015.


7 August 2015.

 1   Different titles were used for the Accounts Clerk and I note that she played a role in management and supervision from time to time.

 2   This was done in a manner consistent with the statutory charter of the Commission. See the discussion of some of the relevant considerations for a similar Tribunal in Minogue v HREOC [1999] FCA 85.

 3   This later element was acknowledged by the employer without prejudice to its position on the merit of the application itself.

 4   Respondent’s written outline of submissions.

 5   1 January 2014.

 6   McInnes [2014] FWCFB 1440.

 7   Newcastle Wallsend Coal Co Pty Ltd v Workcover Authority (NSW) (Inspector McMartin) [2006] NSWIRComm 339; 159 IR 121 at [301].

 8   Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94 at [65]-[67]; Abigroup Contractors Pty Ltd v WorkCover Authority of New South Wales (2004) 135 IR 317 [58].

 9   Macquarie Concise Dictionary definition.

 10   At par 111 and 112.

 11   Georges and Telstra Corporation Limited [2009] AATA 731 at [23].

 12   Ibid.

 13   Bropho v Human Rights & Equal Opportunity Commission (2004) 135 FCR 105 at [79].

 14   See Von Stieglitz and Comcare [2010] AATA 263 at [67].

 15   See the discussion in Department of Education & Training v Sinclair [2005] NSWCA 465.

 16   Keen v Workers Rehabilitation & Compensation Corporation (1998) 71 SASR 42.

 17   [2015] FWC 744.

 18   See the discussion of the earlier authorities in Bassanese [2015] FWC 3515 and the most recent decision of the Full bench in Atkinson v Killarney Properties Pty Ltd [2015] FWCFB 6503.

 19   The recommendations were originally provided to the parties on a confidential basis. However, they set some of the context for the present application and each party has sought to rely upon them in this matter.

 20   Jones v Dunkel (1959) 101 CLR 298.

 21   See Cross on Evidence, Fifth Edition at [1215].

 22   See the discussion in Perananthasivam v Telstra Corporation Limited [2007] FCA 1584.

 23   Letter to applicant’s representative – 25 March 2015.

 24   Liquor Licensing Act 1997 (SA) and the associated General Code of Practice Guidelines.

 25   Form F73 – Employers response at 53-54.

 26   S.789FD(2) of the FW Act.

 27   [2015] FWC 5850.

 28   S.789FD(1) of the FW Act.

 29   See Amie Mac at [87].

 30   S.789FF(1)(b) of the FW Act.

 31   S.789FF(2) of the FW Act.

 32   See CF and NW [2015] FWC 5272.

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