| [2016] FWC 4097 [Note: An appeal pursuant to s.604 (C2016/4966) was lodged against this decision - refer to Full Bench decision dated 25 October 2016 [[2016] FWCFB 7667] for result of appeal.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Luis Perez
(AB2015/640)
COMMISSIONER HAMPTON |
ADELAIDE, 1 AUGUST 2016 |
Application for an order to stop bullying – whether bullying conduct – whether alleged conduct was reasonable management action carried out in a reasonable manner – findings made – limited potentially relevant unreasonable conduct found – not sufficient to constitute bullying conduct within the meaning of the Act – no basis to consider orders – application dismissed.
1. Introduction
[1] Mr Luis Perez has made an application for an order to stop bullying under s.789FD of the Fair Work Act 2009 (the FW Act). Mr Perez is a Housekeeping employee engaged at the Alice Springs Hospital, which is part of the Northern Territory Department of Health. The application alleges bullying conduct by a group of individuals who are also employed at that hospital.
[2] The group of individuals named by Mr Perez in an amended application 1 involves Ms Wendy Thomas, Housekeeping Cleaner/Leading Hand and Mr Gregory Meldrum, Food and Environmental Services Manager.
[3] Mr Perez and each of the other individuals involved in this matter are employees of the Commissioner for Public Employment, Northern Territory Government (the employer).
2. The application
[4] Section 789FC of the FW Act provides as follows:
“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) For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force.
Note: Broadly, for the purposes of the Work Health and Safety Act 2011, a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.
(3) The application must be accompanied by any fee prescribed by the regulations.
(4) The regulations may prescribe:
(a) a fee for making an application to the FWC under this section; and
(b) a method for indexing the fee; and
(c) the circumstances in which all or part of the fee may be waived or refunded.”
[5] There is no contest that Mr Perez is a worker. Although the application is strongly opposed, it has not been suggested that Mr Perez does not reasonably believe that he has been bullied at work, at least in terms of s.789FC(1) of the FW Act.
[6] There is a valid application before the Commission.
[7] Mr Perez referred to the following alleged incidents involving the persons named as illustrations of alleged workplace bullying conduct:
[8] Mr Perez also referred to a number of other alleged incidents. These included:
[9] However, I note that Mr Perez refers to the above incidents only in so far as they support his proposition that the respondent maintains an abusive and bullying workplace. No evidence was led in relation to them and they were not directly relied on during the proceedings.
[10] During the course of the proceedings associated with this matter, Mr Perez also included other alleged incidents and circumstances as further justification for his claim that he was the subject of workplace bullying. These included:
● On 15 February 2016, being called an “arrogant prick” by CSSD Manager Ms Kelly, which allegedly followed a conversation with Ms Thomas, and was said to demonstrate that Ms Thomas was “assassinating” Mr Perez’s character;
● Being denied access to CCTV footage of many of the incidents relied upon in this matter; and
● The employer, through Mr Meldrum and others:
[11] The employer and the individuals named (collectively – the respondent parties) oppose the application on various grounds including the detail and characterisation of the various events relied upon and whether such conduct as did occur constitutes bullying behaviour under the FW Act.
3. What constitutes bullying behaviour under the FW Act?
[12] Before dealing with the cases presented by the parties it is appropriate to canvass the provisions of the FW Act that define the concept of being bullied at work. In general terms, there was no contest between the parties as to the appropriateness of the following approach. However, issues have arisen as to the whether any relevant conduct was repeated (in the sense of individuals repeatedly behaving unreasonably) and whether the actions of a person who is, in effect, a Leading Hand, represent “management” actions. Ultimately, I have not needed to deal with these for reasons that will become clear.
[13] Section 789FD of the FW Act provides as follows:
“789FD When is a worker bullied at work?
(1) A worker is bullied at work if:
(a) while the worker is at work in a constitutionally-covered business:
(i) an individual; or
(ii) a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
(b) that behaviour creates a risk to health and safety.
(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.
(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:
(a) the person is:
(i) a constitutional corporation; or
(ii) the Commonwealth; or
(iii) a Commonwealth authority; or
(iv) a body corporate incorporated in a Territory; or
(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;
then the business or undertaking is a constitutionally-covered business.”
[14] There is no contest that the employer is conducting a constitutionally-covered business. 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. 2
[15] In GC, 3 the Commission observed as follows:
“[45] The concept of individuals ‘repeatedly behaving’ unreasonably implies the existence of persistent unreasonable behaviour but might refer to a range of behaviours over time. There is no specific number of incidents required for the behaviour to represent ‘repeatedly’ behaving unreasonably (provided there is more than one occurrence), nor does it appear that the same specific behaviour has to be repeated. What is required is repeated unreasonable behaviour by the individual or individuals towards the applicant worker or a group of workers to which the applicant belongs.
[46] An applicant may rely upon conduct that took place prior to the commencement date of the new provisions, to demonstrate bullying conduct.
[47] ‘Unreasonable behaviour’ should be considered to be behaviour that a reasonable person, having regard to the circumstances, may consider to be unreasonable. That is, the assessment of the behaviour is an objective test having regard to all the relevant circumstances applying at the time.
[48] The behaviour must occur whilst the applicant is at work.
[49] The unreasonable behaviour must also create a risk to health and safety. Therefore there must be a causal link between the behaviour and the risk to health and safety. Cases on causation in other contexts suggest that the behaviour does not have to be the only cause of the risk, provided that it was a substantial cause of the risk viewed in a common sense and practical way. This would seem to be equally applicable here.
[50] A risk to health and safety means the possibility of danger to health and safety, and is not confined to actual danger to health and safety. The ordinary meaning of ‘risk’ is exposure to the chance of injury or loss. In the sense used in this provision, the risk must also be real and not simply conceptual.
[51] Behaviour will not be considered to be bullying conduct if it is reasonable management action carried out in a reasonable manner.
[52] Section 789FD(2) of the FW Act is not so much an “exclusion” but a qualification which reinforces that bullying conduct must of itself be unreasonable. It also emphasises the right of management to take reasonable management action in the workplace. In its application, the provision comprises three elements:
[53] The Explanatory Memorandum refers to management decision and decisions about how work is to be carried out. This suggests that the term may be required to be given a wide meaning under s.789FD(2) and that the Legislature intended everyday actions to effectively direct and control the way work is carried out to be covered by the exclusion.
[54] 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:
[55] The specific ‘attributes and circumstances’ of the situation including the emotional state and psychological health of the worker involved may also be relevant.
[56] 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:
[57] 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.
[58] 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.
[59] All of the requirements of s.789FD(1) must be read together. In terms of the issues in dispute in this case, this means that the Commission must consider whether an individual (the Managing Director) has repeatedly behaved unreasonably towards the applicant whilst the applicant was at work and whether that behaviour has created a risk to health and safety. A positive finding on each of these elements, and if appropriate, a finding that the circumstances contemplated in s.789FD(2) of the FW Act do not apply to the behaviour, must be made for the Commission to find that the applicant worker has been bullied at work.” (citations omitted)
[16] Further, Hatcher VP in Amie Mac v Bank of Queensland Limited and others 4 (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):
“[89] … but I would add three further observations about the interpretation and practical application of the expression “repeatedly behaves unreasonably” in s.789FD(1)(a). First, the expression falls within a definition provision. The function of a legislative definition, as was pointed out by McHugh J in Kelly v R, is not to enact substantive law, but to provide aid in construing the statute. A definition provision is therefore not to be interpreted in isolation and thereby given a meaning which negates the evident policy or purpose of a substantive enactment. Part 6-4B has the evident purpose of establishing a mechanism by which the bullying of workers at work may be stopped. In interpreting, and applying, the expression “repeatedly behaves unreasonably” as it appears in s.789FD(1)(a), the concept of repeated unreasonable behaviour is not to be approached in a manner which divorces it from that purpose. The subject matter is bullying at work, and that must be borne steadily in mind in any consideration as to whether particular behaviours are unreasonable for the purpose of s.789FD(1)(a). A consideration of unreasonable behaviour which loses sight of the objective and subject matter of Part 6-4B may lead to the provisions not achieving their intended purposes, or being used for a purpose that was not intended.”
[17] Earlier in Amie Mac, the Vice President set some of the context for the provisions in the following terms:
“[87] The requirement for repeated unreasonable behaviour is clearly a core element of Part 6-4B. The Explanatory Memorandum to the Fair Work Amendment Bill 2013 through which Part 6-4B was enacted discloses that the definition of bullying at work in s.789FD, including this element, reflected a recommendation for such a definition contained in the report of the House of Representatives Standing Committee on Education and Employment “Workplace Bullying - We just want it to stop”. In referring to that report, the Explanatory Memorandum said:
“109. The Committee went on to note that ‘repeated behaviour’ refers to the persistent nature of the behaviour and can refer to a range of behaviours over time and that ‘unreasonable behaviour’ is behaviour that a reasonable person, having regard to the circumstances may see as unreasonable (in other words it is an objective test). This would include (but is not limited to) behaviour that is victimising, humiliating, intimidating or threatening.”
[18] I have applied all of the above approaches in determining this matter.
4. The cases presented by the parties
4.1 The applicant
[19] Mr Perez represented himself in the hearing of this matter. He also gave sworn oral and written evidence and provided various documents in support of his case.
[20] Mr Perez alleges that the employer maintains an abusive and bullying workplace. He contends that the repeated unreasonable behaviours of the group of individuals poses a real and significant threat to his health and safety, and further that there is sufficient evidence that on the balance of probabilities there is a greater risk that he will continue to be bullied at work. 5
[21] Mr Perez directly relies on eight alleged incidents involving Ms Thomas and one particular alleged incident involving Mr Meldrum. I will deal with the detail of the incidents as part of this decision. Mr Perez submits that the cumulative bullying behaviour of both Ms Thomas and Mr Meldrum has caused the recurrence of his medical condition. 6
[22] He further adds that Mr Meldrum is guilty of multiple incidents of bullying by “connivance” for every bullying allegation that he claimed against Ms Thomas. 7
[23] On all occasions Mr Perez made complaints via email about the incidents to either Ms Sauvana, his Supervisor, or Mr Meldrum, and in some instances, to both. In this respect, he contends that the respondent failed to implement the workplace Anti-bullying Policy for all complaints made as it was only implemented for 2 out of the 11 complaints. 8 Furthermore, he was concerned that Mr Meldrum did not follow the required process set out for Managers in the Employee Internal Complaints Guideline.9
[24] At the same time as making the complaints, Mr Perez requested the preservation of the CCTV footage. In this regard, he contends that the respondent parties, and Mr Meldrum in particular, deliberately failed or refused to preserve all CCTV footage evidence to be used against Ms Thomas. He claims that the spoliation of evidence is an “illegal action” which has “irreversibly denied the Applicant the opportunity to have a fair trial” and further that it has “completely perverted the course of justice”. 10 He also refers to s.39 of the Crimes Act 1914 (Cth) in that regard.
[25] Mr Perez further referred to “Advice 7: Legal hold order for records” 11 (Advice 7), the details of which are set out later in this decision, and contends that Mr Meldrum contravened Advice 7 by failing to follow the instructions in relation to retaining CCTV footage.
[26] Mr Perez is seeking an order to stop workplace bullying, in particular an order for Ms Thomas and Mr Meldrum to stop the bullying of him in the workplace. 12
[27] After the hearing in this matter, Mr Perez supplied written closing submissions, which he used as the basis for his earlier oral submissions. Having provided an opportunity for the respondent parties to raise any concerns about that material, which it did not do, I have also had regard to those final written submissions.
4.2 The respondent parties
[28] The application is opposed by the respondent parties on the following grounds:
● the various incidents and circumstances relied upon by Mr Perez do not constitute repeated unreasonable behaviour within the meaning of the FW Act;
● Mr Perez has not been subjected to unreasonable behaviour;
● the alleged behaviour did not create a risk to health and safety; and
● the actions taken by management were reasonable management action carried out in a reasonable manner.
[29] The respondent parties also contend that there is no risk that Mr Perez would continue to be bullied at work if orders are not made.
[30] The employer does not contend, at least in general terms, that exchanges between the parties did not happen or that a particular individual was not in the location that Mr Perez says they were during any of the exchanges.
[31] The employer acknowledges that the management action taken was perhaps not perfect or ideal, but it submits that it does not fall into the unreasonable category. 13 In that regard, it contends that if an employee raises a complaint and their complaint is not dealt with, there is a range of avenues open to employees, under the Employee Internal Complaints Guideline (the Guideline), to progress the matter. The employer further contends that Mr Perez did not utilise the process of escalating the matters through to Human Resources, in accordance with the Guideline, or to anyone else. It submits that this is because Mr Perez only had the intention of being on the record to commence future litigation, rather than actually trying to resolve the issue or concerns he had about the way he was being managed in the workplace.14 The employer notes that in the instances where Mr Perez utilised the internal procedures, the matters were resolved.15
[32] Furthermore, in the two incidents where inappropriate verbal remarks were directed at Mr Perez, the employer conducted a meeting with the individual and Mr Perez. On the occasion when Mr Perez was called a “pig”, the individual and Mr Perez managed to avoid each other and/or remain civil for a period of 12 months. On the occasion when Mr Perez was called an “arrogant prick”, a formal apology was made by the individual to Mr Perez.
[33] The respondent parties led evidence from the following:
● Ms Wendy Thomas, Housekeeping Cleaner/Leading Hand;
● Ms Iva Sauvana, Environmental Services Supervisor; and
● Mr Gregory Meldrum, Food and Environmental Services Manager.
5. Observations of the witness and some other evidence
5.1 Mr Perez’s submissions on evidence
[34] Mr Perez took the view that Mr Meldrum had perjured himself by (in the words of Mr Perez) “declaring falsely in his statutory declaration dated 20 May 2016 that Ms Thomas was a supervisor”. 16 The paragraph of the statutory declaration that Mr Perez refers to is as follows:
“On weekend shifts Wendy also works as a Leading Hand (i.e. a supervisor).” 17
[35] Mr Perez noted that under cross-examination Ms Thomas admitted that she was not a supervisor. He submits that the false declaration made by Mr Meldrum about Ms Thomas being a supervisor is enough to discredit Mr Meldrum as a witness, 18 and further that the Commission should regard Mr Meldrum’s testimony and submissions lightly due to the alleged criminal perjury.19
[36] In relation to Ms Thomas’ evidence, Mr Perez submits that the “Commission must discredit Ms Thomas as an unreliable witness who willingly makes false declarations one after another in order to make a previous false declaration sound true.” 20
[37] Mr Perez observed Ms Sauvana to be an “incredible” and “unreliable” witness. His position was that she willingly made false declarations to make a prior false declaration sound true. He came to this conclusion on the basis that Ms Sauvana testified that she held a meeting in relation to the 16 November 2014 incident but also claimed not to have received the email complaint about that incident. Further, Ms Sauvana also indicated that as a result, she did not conduct an investigation. Further, Ms Sauvana admitted to receiving emails from Mr Perez previously and confirmed that the email complaint regarding the 16 November 2014 incident contained her correct email address. Mr Perez contends that the Commission should find that this evidence was false. 21
[38] As part of the final hearing in this matter, Mr Perez took exception to the form of the provision, by the employer, of some written evidence about access through a particular door in the hospital that became relevant. This was undertaken at the request of the Commission in response to a production application made by Mr Perez. Mr Perez contends that the action, allegedly by “unknown people”, of placing a piece of paper over the bottom half of the swipe card reports, prior to photocopying and producing them, is a contravention of s.39 of the Crimes Act 1914. Mr Perez informed the Commission, in his closing submissions that he intended to bring these reports to the attention of the Northern Territory Police to be checked by their forensic experts, in order to determine whether or not they had been tampered with. 22 I note that in response, Mr Finlay explained that the swipe card reports show only the entries for the days requested, with the piece of paper covering other dates or locations.
5.2 The respondent parties’ submissions on the evidence
[39] Mr Finlay, for the employer, invited the Commission to consider Mr Perez’s evidence in light of observations that might be made about his own conduct. That is, the employer contends that Mr Perez’s behaviour does not demonstrate someone who actually wants to resolve issues in the workplace. Further, Mr Perez was a person who jumps to a conclusion, and any evidence that does not align with that conclusion is a result of the person lying and doctoring the evidence, such that the person must have falsified their testimony. 23
[40] Furthermore, the employer submits that it was Mr Perez’s evidence that he is not quite sure of the cultural norms within the country or anything that is outside his own cultural background. Therefore, little weight should be placed on Mr Perez’s interpretation of Ms Thomas’ language and facial expressions as he perhaps took them in a way that they were not intended, or in a way that did not occur at all. 24
[41] The employer also submits that Mr Perez, by his own admission, is someone who believes that he can do things in any manner he sees fit, including determining what will be cleaned, how it will be cleaned and within what time frames. Further, it contends that Mr Perez is of the view that he can take his breaks as he deems appropriate. 25 The employer submits that Mr Perez responds to anyone that is critical of him as saying that they are bullying him.26
[42] In relation to the incidents involving Ms Thomas, the employer submitted that Mr Perez embellished his story to try and make Ms Thomas sound more “heavy-handed” than she actually was and that Mr Perez has a strong desire to be in litigation and remain in litigation rather than actually resolve any misunderstandings or issues. 27 He described the incident involving Ms Thomas on 29 December 2014 as a “cultural miscommunication”.28
[43] The employer contends that Ms Thomas was a reliable witness and indicated that “like all of us” she perhaps could have communicated a little better, however, in any event Mr Finlay submitted that her behaviour was not bullying behaviour. 29
5.3 My findings
[44] I found Mr Perez to be an honest witness but whose subjective views about the rights and wrongs of the situation dominated his recollections of the facts. He was also a witness who assumed the worst motives and circumstances and then looked for factors to support those assumptions. This does not mean that I completely discount his evidence as to the facts; however I have treated that evidence with some considerable caution.
[45] I found the evidence of Ms Thomas to be given honestly and fairly. When faced with the mistake made about the particular shift allocation being undertaken by Mr Perez during their first weekend shift together, Ms Thomas accepted the mistake and did not attempt to prevaricate. Her evidence was also more objective than that provided by Mr Perez.
[46] In general terms, I found the evidence of Mr Meldrum to have been given honestly and openly. The criticism made by Mr Perez that Mr Meldrum had committed “perjury”, due to the reference in his written evidence to Ms Thomas being a “Supervisor”, is wholly without merit. That reference was in the context of referring to Ms Thomas as a Leading Hand and included the statement “(i.e. a supervisor)”. This may be wrong, in the sense that a difference in responsibilities and reporting functions exists between a Leading Hand and a Supervisor, but when considered in context is not the basis for a finding that Mr Meldrum has deliberately given false evidence. I do, however, consider that Mr Meldrum, at one point in his evidence, exaggerated to some extent the degree of immediate risk in explaining why it was inappropriate for Mr Perez to be sleeping in the Old ED area.
[47] Ms Sauvana did not have a clear recollection of the events surrounding the manner in which the complaints of Mr Perez were initially handled and was probably mistaken about the sequences of some of the events. I have therefore treated that evidence with caution. I did, however, find that Ms Sauvana’s evidence was given honestly and openly. Her denial of having received a copy of a particular email from Mr Perez, which would appear to have included her email address, is not so improbable as to lead me to discount the remainder of her evidence.
[48] The respondent parties did not lead evidence from Ms Kelly to contradict the version of events given by Mr Perez that led to him being called an “arrogant prick”, for which she later apologised.
[49] The general rule relating to the drawing of inferences from a failure to call evidence is found in the well-known case of Jones v Dunkel. 30 Broadly stated, in the absence of a satisfactory explanation for evidence not being called when a fact is in issue, it is permissible (but not necessary) to draw an inference that the evidence would not have assisted the only party who was in a position to call that evidence.
[50] The relevant events were relied upon by Mr Perez only for the purpose of supporting his proposition that Ms Thomas had been having a discussion with Ms Kelly about him. Ms Thomas gave evidence about the events and in that context it is not necessary or appropriate to draw a negative inference from the absence of evidence from Ms Kelly. However, I must determine the relevant events based upon the evidence that is before the Commission.
[51] Mr Perez contends that I should exclude the evidence of Mr Meldrum about the Old ED area and in particular that evidence going to whether it was an area that should not be generally accessed by the staff. Mr Perez describes that as being “ambush evidence”, in that it was not set out in the witness statement of Mr Meldrum filed in advance of his oral evidence. I have not excluded that evidence for the following reasons. The evidence arose directly from the testimony given by Mr Perez in cross-examination about the suitability of the Old ED area for him to take a nap and was consistent with the evidence already advanced by the respondent parties. Further, the evidence about those matters was put to Mr Perez during that cross-examination and during the course of the hearing and submissions in this matter, Mr Perez had a reasonable opportunity to deal with that material. This included considerable latitude being afforded to Mr Perez to provide additional evidence after he had closed his evidentiary case.
[52] I will later deal with the suggestion by Mr Perez that the absence of some of the CCTV footage was, in itself, part of the bullying behaviour. Mr Perez has also contended that the absence of the CCTV footage was in breach of certain requirements applying to the employer to preserve evidence in the event of potential litigation (the spoliation of evidence), that this has led to a situation where he could not have a fair hearing of his anti-bullying application (the fair hearing complaint) and that the Commission should draw a negative inference in the context of the absence of the footage.
[53] Before dealing with those elements, it is appropriate to note that the hospital has a series of CCTV cameras in work areas and that these record, without sound, images on a rolling basis. That is, the footage is recorded and unless management place a hold on the material, it is written over or deleted within 14 days. 31 The decision to place a hold on CCTV footage is made only by senior management.
[54] In relation to many, if not all, of the incidents relied upon by Mr Perez, when making his complaint to management, he requested that steps be taken to preserve the CCTV footage in the context of his complaint, and in some cases, by reference to potential legal action. In all but a few of those cases, the CCTV footage was not preserved and no action was taken by management to retain that footage.
[55] On this point, Mr Perez referred to “Advice 7” as a “de facto assurance” by the employer to the general public and Northern Territory employees, in particular those who may be contemplating suing the employer, that the records in possession and full control of the employer will not be destroyed.
[56] Advice 7 is a document issued by the Records Policy Unit in the Northern Territory Department of Corporate and Information Services which provides advice to Departmental agencies in relation to records management and related matters. The Advice document is advisory and a recommendation is set out in Advice 7 as follows:
“Recommendation
In the event of legal proceedings involving the agency (or anticipated legal proceedings), it is essential that destruction of records or information that could be relevant to litigation be suspended, even if there is a current records disposal schedule authorising destruction of records, or if the material in question is eligible for destruction by following normal administrative practice.” 32 (original emphasis) (citations omitted)
[57] Advice 7 then sets out an explanatory section which is as follows:
“Explanatory information
As stipulated in Records Management Advice No.4 - Producing Records as Evidence in Legal Proceedings, records (or documents) may be required for legal purposes in several contexts. They may be required to obtain legal advice on behalf of an agency, for the purposes of “discovery” to other parties involved in litigation in which an agency is a party, or for production in court by an agency whether or not the agency is a party to the proceeding.” 33 (citations omitted)
[58] The website containing Advice 7 defines “document” in the following way:
“A ‘document’ can be defined as recorded information or object which can be treated as a unit (National Archives of Australia website). For the purposes of this Records Management Advice, the terms ‘record’, ‘document’, ‘information’ and ‘corporate information’ apply to anything that may be required by any party pursuant to litigation or anticipated litigation.” 34
[59] Advice 7 also establishes a number of steps to be followed if an agency is informed of litigation, to which it may be a party. These steps include obtaining legal advice, the identification of relevant documents and the suspension of normal destruction practices and schedules to preserve records and information.
[60] It is apparent that Mr Meldrum was not aware of, and did not take, the steps outlined in Advice 7. However, Advice 7 is advisory in nature and in this case it would be necessary to consider whether the earlier indications that Mr Perez may take legal proceedings would be sufficient to be considered to be “anticipated legal proceedings” as contemplated in the Advice. 35 Certainly during the latter stages when this application was expressly notified and after it had been made, the prudent course of action would have been to have retained the CCTV footage, or at least reviewed such to determine whether it could have any evidentiary value. Depending upon the nature of the alleged exchange involved, and whether there was a dispute about the physical aspects of the incident, such a step would potentially benefit the participants in any exchange as well as the employer.
[61] Mr Perez quoted and relied upon the legal maxim “omnia praesumuntur contra spoliatorem” in support of his case. Put simply, this stands for the proposition that all things are presumed against the individual who destroys evidence. However, to the extent that this maxim is relevant here, it should be appreciated that where it has been applied a clear distinction is drawn between:
● the deliberate destruction of documents with the intention of destroying evidence; and
● the deliberate destruction of documents where there is no such intention. 36
[62] Further, in applying this principle, as the Court in Saloustis v Nikic 37 pointed out, one must distinguish between a case of intentional suppression of vital evidence, and one where secondary evidence is given and the unknown parts cannot reasonably be thought to have any effect upon the issue.
[63] I am satisfied that the CCTV footage in this case was not preserved because the employer considered it to be of little if any utility.
[64] Mr Perez also relied upon s.39 of the Crimes Act 1914 (Cth). This is ultimately a matter for a Court and I note that the provision of the Crimes Act applies only to circumstances where a person knows that the item is or may be required in evidence in judicial proceedings and destroys the item and does so with the intention of preventing that item being used as evidence. Proceedings before the Commission may well be judicial proceedings for this purpose 38 however I have dealt with the apparent intention of the employer above.
[65] In terms of the fair hearing complaint, I do not accept that the absence of the CCTV footage has led to any unfairness in the hearing and determination of this particular application. In that regard, it is necessary to consider both the nature of CCTV footage (not being video footage and being without sound) and the circumstances of this matter, including the nature of issues and facts that are not in dispute.
[66] CCTV is by definition, limited in its utility to the extent that it is intended to assist the resolution of what was said, and to a large degree, the demeanour of the participants in a conversation. In that latter regard, where conduct is alleged to be demonstrable or involve physical contact, or where the location of the parties is in dispute and relevant to the determination of the matter, I would accept the benefit of having CCTV footage as part of the evidence.
[67] In this case, there is a dispute about the location of one exchange, but that location is not a relevant factor in determining the nature of the exchange. There is generally no dispute that exchanges took place between the relevant persons and there is no reasonable suggestion that the body language of any of the parties was so demonstrable that CCTV footage would assist to determine which account was correct. There is a dispute about whether Mr Perez walked between Ms Kelly and another employee who were having a discussion, and the CCTV footage concerned in relation to that event was preserved. Mr Perez did tender that footage as part of his case. However, he did not seek to rely upon that footage to support his case in regard to that particular incident, and for reasons outlined above, that footage is of no real assistance in that respect.
[68] In terms of the other CCTV footage that was available, Mr Perez only sought to rely upon it as an example of the fact that the CCTV footage should have been retained.
[69] As outlined earlier, during the latter stages of the proceedings, a contention arose about the extent of access through a particular entry door to the Old ED area. This arose in the context of the allegation by Mr Perez that he had been “rudely awoken” by Mr Meldrum during his rest break. Access through various doors at the hospital is gained by using access passes that are provided to each employee. Swipe card entries are recorded and may be reported. In the lead up to the final submissions, Mr Perez sought that a production order be made for the swipe card reports for 29 May 2016.
[70] In the absence of an apparent basis for that day to be relevant, I requested that the swipe card records of the relevant door for 29 May and 11 June 2016 (where there had been some evidence about that day) be provided by the employer, which did take place. On the eve of the hearing, Mr Perez indicated that the reference to 29 May 2016 was a mistake and that he was after the records for 9 May 2016. Mr Perez also sought a delay in the provision of final submissions; to enable that report to be provided and for submissions to be made. I declined that course of action on the basis that the request for the 9 May 2016 report had been made so late; there was ample opportunity for that clarification to be raised earlier; the nature of the evidence already before the Commission – including the fact that the material already presented did not provide a basis to suggest that the records were false or misleading and it was not disputed that employees did use the door in question; the marginal value associated with the evidence given the particular issue; and because the production of the material would inevitably further delay the conclusion of the matter.
6. The general context
[71] An understanding of the broader context for this matter is important. The evidence reveals the following.
[72] The Alice Springs Hospital is the only medical facility within a radius of 1,500kms and is an important part of the health care system in central Australia. As with any such facility, the maintenance of appropriate hygiene and cleaning standards is critical. Given the nature of the workforce and the work carried out at the Hospital it is reasonable and appropriate that the cleaning work be highly structured, with cleaning manuals and duty lists on how tasks are to be performed.
[73] Mr Perez commenced employment for the Northern Territory Department of Health’s Central Australian Health Service, Alice Springs Hospital, on 16 June 2014. He is a cleaner who generally works shifts in the public areas of the hospital. He had previously worked in cleaning of the clinical areas such as paediatrics.
[74] Ms Thomas has been employed as a Housekeeping Cleaner for the Northern Territory Government/Department of Health for eight years. For the last three to four years she has regularly cleaned the Outpatients Department. Ms Thomas has also been a Leading Hand since December 2013, and is an appointed Health and Safety Representative (HSR).
[75] Ms Sauvana is an Environmental Services Supervisor at the Hospital and is responsible for supervising 45 staff in the environmental services section at the Alice Springs Hospital Campus and Renal Unit, Flynn Drive. Her position includes being responsible for ensuring cleaning standards are maintained in accordance with Infection Control practices. Mr Perez and Ms Thomas presently report to Ms Sauvana.
[76] Mr Meldrum is a Food and Environmental Services Manager responsible for the strategic management of Food and Environmental Services at the Alice Springs Hospital. This includes the work of Mr Perez and the other individuals who are parties to this application.
[77] Mr Perez took sick leave between 7 December 2015 and 1 January 2016. Mr Perez has provided a medical certificate in which a Doctor states that “he was suffering from a medical condition (detail provided), which he claims is from workplace bullying.” 39 Mr Perez continues to attend work but has been prescribed with medication apparently related to his condition.40
7. The alleged conduct relied upon by Mr Perez
[78] Based upon the submissions and evidence before the Commission, I make the following observations about the positions of the parties, and findings of fact, in relation to the key incidents relied upon by Mr Perez. I will return to the implications of these findings later in the decision.
7.1 The incident of 16 November 2014 involving Ms Thomas
[79] Mr Perez alleges that whilst getting ready to take his lunch break, Ms Thomas called him over and in an abusive manner ordered him to “narrate” the tasks he did for the day. He further alleges that she loudly scolded him in front of others in the staff room for not asking her what to do. Mr Perez contends that he referred to the relevant job list, to which Ms Thomas responded that it was wrong. Mr Perez stated that the Manager prepared it, and on his recollection, she further commented that the Manager is (or must be) wrong.
[80] Mr Perez contends that he felt humiliated and belittled by Ms Thomas who he considered to be rude, abusive and intimidating in her exchanges with him.
[81] Mr Perez contends that on this occasion, Ms Thomas apologised later in the day and promised that it would not happen again. He contends that, due to the apology, he gave the incident no further thought which is why he did not report the incident until 7 December 2014.
[82] Ms Thomas contends that Mr Perez did not “write off” his work sheet and therefore she does not know which cleaning duties he had, and had not, completed. This is why she asked what he had done during that particular day. 41 She also contends that she was not rude at all and did not raise her voice.42
[83] On the balance of probabilities I find that there was a discussion between Mr Perez and Ms Thomas on 16 November 2014. I find that Ms Thomas was abrupt with Mr Perez and that this arose, in part, from Ms Thomas’ misunderstanding about the duty role being undertaken by Mr Perez on that day. That is, Ms Thomas wrongly considered that Mr Perez should have been on the same shift and duty list as herself on that day. However, it was reasonable and appropriate for Mr Thomas, given her role as a Leading Hand, to check what duties had been performed by Mr Perez on that day.
7.2 The four incidents on 7 December 2014 involving Ms Thomas
[84] Mr Perez alleges that on 7 December 2014 he was verbally abused, intimidated and harassed by Ms Thomas on four occasions. The abuse allegedly occurred twice whilst he was cleaning the CSSD and twice again whilst polishing the ground floor and the floors to the Executive Offices on Level 1.
[85] He further contends that on all four occasions, Ms Thomas inquired why Mr Perez was taking so long to complete his cleaning duties. Mr Perez suggested that Ms Thomas personified a “slave master driving her slave.” 43 He contends that she did this by asking him to finish the job faster, work faster and by suddenly showing up and rushing him.44 Mr Perez explained that the areas were big and he did not want to hurry and do a less than expected job.45
[86] Mr Perez agrees that a person in Ms Thomas’ position, as a (Leading Hand) coordinating cleaning tasks, may inquire in a reasonable manner about whether tasks have been completed on time. 46 The concern of Mr Perez is the alleged abusive manner in which Ms Thomas made such inquiries.47
[87] I note that Mr Perez filed a complaint via email to Ms Sauvana and Mr Meldrum within 48 hours of the alleged incidents and he also requested that the CCTV footage be preserved.
[88] Ms Thomas had no independent recollection of events on 7 December 2014 but denies that she was ever abusive to Mr Perez.
[89] Because of the tendency for Mr Perez to exaggerate the circumstances and to be highly subjective about events, it is difficult - in the absence of some external objective witness evidence - to make findings about alleged dealings that are not recalled at all by Ms Thomas.
[90] Having regard to the evidence about the interactions between Mr Perez and Ms Thomas more generally, I cannot be satisfied, on the balance of probabilities, that there was any abusive manner in the exchanges in whatever that took place on 7 December 2014.
7.3 The incident of 29 December 2014 involving Ms Thomas
[91] On 29 December 2014, Mr Perez was in the cleaners’ room. It is common ground that Mr Perez, without warning, gave a loud burp. Upon exiting the room, and in the presence of other cleaners, Ms Thomas called Mr Perez a “pig”.
[92] Mr Perez accepts that he burped but contends that in the Asian culture (where he previously lived), it was common practice and indeed a compliment to burp and that it was not necessary to excuse oneself. 48 He further contends that the region of his original country is dominated by people of the “Muslim religion” and thus for him it is very offensive to call someone a “pig”.49
[93] On or around 30 December 2014, a meeting was conducted by Ms Sauvana. At the meeting Ms Sauvana requested both Mr Perez and Ms Thomas to shake hands and forget everything in the past. I note that there was little, if any, discussion about the events and this meant that Mr Perez did not describe the significance of being called a “pig” 50 and there was no real discussion about Ms Thomas’ perspective on the events. Whilst an informal meeting may have been appropriate, this was an inadequate process for dealing with the circumstances. I will return to this aspect later in this decision.
[94] It is clear to me that the incident took place largely in the manner advanced by both parties. That is, Mr Perez burped loudly and did not consider that such would cause offence or that an apology was necessary. Ms Thomas considered that this action was rude and called Mr Perez a “pig”, which was communicated in a manner that was not intended to be offensive. In many circumstances, nothing would flow from such an exchange. The absence of a mutual understanding about the competing cultural norms has meant that this incident has become more significant, at least for Mr Perez.
7.4 The incident of 7 December 2015 involving Ms Thomas
[95] On 7 December 2015, Mr Perez was cleaning when he was stopped by Ms Thomas who, in the presence of other cleaners, allegedly aggressively questioned him about the contents of his trolley. In particular, Ms Thomas asked why Mr Perez did not have water in his bucket; Mr Perez agrees that he did not have water in his bucket. 51
[96] Mr Perez contends that Ms Thomas was confrontational and raised her voice whilst pulling the bucket from his trolley. 52
[97] Ms Thomas’ response confirmed that Mr Perez regularly uses a foam cup to clean with. He does so by placing water in the foam cup and splashing it around the basins. This is contrary to the practice of using warm soapy water and a cloth as required by the cleaning manual. 53 It was suggested that Mr Perez was not doing his job properly which is why she questioned why he did not have a bucket filled with water.
[98] On the same day Mr Perez filed a complaint with Mr Meldrum and requested that the CCTV footage be preserved.
[99] I find on the balance of probabilities that Ms Thomas approached Mr Perez with what was a legitimate inquiry about the absence of warm soapy water in his bucket or pale. I also find that this approach was legitimate given the training and cleaning protocols that applied to the work being undertaken by Mr Perez. It is also clear that Mr Perez considers that it is appropriate to undertake the duties at different times and in a different manner than is set out in the cleaning protocols. Whilst some of this may be related to requests from particular managers in the various areas being cleaned, this tendency applies more generally and has become the source of some friction between Ms Thomas and Mr Perez.
[100] Based upon the evidence, when considered objectively, I am not satisfied that the approach and behaviour of Ms Thomas was unreasonable.
7.5 The incidents of 15 February 2016 involving Ms Thomas and Ms Kelly
[101] On 15 February 2016, Mr Perez contends that he was walking down the hallway towards the disposal room when he “espied” Ms Kelly and Ms Thomas talking to each other and allegedly staring at him. He contends that Ms Kelly had her hands crossed. At this point he could not hear what they were saying to each other but after the incident that later followed he “jumped to the conclusion” that they must have been “assassinating his character”. 54
[102] The incident that followed occurred later in the day on 15 February 2016. Mr Perez contends that he walked past Ms Kelly who proceeded to called him an “arrogant prick”. The employer contends that this took place when Mr Perez rudely and deliberately walked between Ms Kelly and another person with whom she may have been talking.
[103] Mr Perez emailed a complaint to Mr Meldrum on 16 February 2016 and also requested that the CCTV footage be preserved. Mr Meldrum subsequently conducted an investigation. The CCTV footage was preserved.
[104] A few days after the complaint was made, a Human Resources (HR) representative of the employer organised a meeting with Mr Perez and Ms Kelly. Ms Kelly formally apologised to Mr Perez in the presence of Mr Meldrum and the HR representative. At the time, Mr Perez stated that in accepting her apology, he did not surrender his rights to later bring an application in the Commission. 55
[105] As outlined earlier, Mr Perez relies upon this incident as confirmation that Ms Thomas was “assassinating his character”. These events are more consistent with the view that Ms Kelly (rightly or wrongly) considered that Mr Perez had been rude and then responded, albeit inappropriately, and later apologised. The incident is not, however, a reliable indicator that Ms Thomas was undermining Mr Perez and I am not persuaded that this took place.
7.6 The incident of 9 May 2016 involving Mr Meldrum
[106] The context for this incident is that Mr Perez had apparently made a practice of taking a nap during his rest breaks in an area of the hospital known as the Old ED. This involved Mr Perez setting up a place to nap where he would also store cans of soft drink. He would, during a break, grab a container with ice and drink the soft drink. There were no proper crib facilities in that immediate area, although that area could be used to access some toilets and lockers in an adjacent area.
[107] Mr Perez contends that on 9 May 2016, he was resting his eyes, during his 15 minute tea break, in one of the darkened unused rooms in the Old ED. He alleges that Mr Meldrum rudely woke him and demanded that he vacate the room. Mr Meldrum further requested that Mr Perez spend his breaks in the staff room in front of the kitchen.
[108] Mr Perez described the incident as making him feel disrespected, intimidated and belittled 56 and contends that it was an unreasonable request of Mr Meldrum to ask him to take his lunch and tea breaks in the staff room instead of the Old ED.57
[109] On 9 May 2016, Mr Perez emailed a HR representative with a complaint against Mr Meldrum and requested that the CCTV footage be preserved. This occurred.
[110] The employer contends that Mr Perez was found asleep in an area at a time that did not correspond with his scheduled break. It was also evident that Mr Perez had turned the area into a form of alternative crib facility. Mr Meldrum gave evidence that there is currently construction activity occurring in the space, 58 and further that Mr Perez would have walked past a sign that said “Construction Area” or “Construction Zone” when he entered the area to rest his eyes.59 He also contends that Mr Perez has an allocated locker space in the staff tea room which is adjacent to the cleaners’ room, and further that there is a refrigerator and storage area for food. On that basis, the employer contends that there is no real need for Mr Perez to be entering the Old ED area unless he was undertaking cleaning of the adjacent offices60 and that the area was inappropriate for use in the manner described above.
[111] Furthermore, the employer contends that Mr Perez’s security pass was used to enter the Old ED 4 times on 11 June 2016; despite the request from Mr Meldrum to cease taking breaks in that area.
[112] Accordingly, there is a dispute as to whether the Old ED area was part of a construction zone, or more particularly whether Mr Perez’s presence represented a safety risk. I find that whether it was or was not part of an active construction zone, it was not an appropriate area for a tea break. That is, the Old ED area is part of, or leads to a construction zone and some minor work (moving ceiling tiles) may take place in that area from time to time. However, it is reasonably apparent that any serious construction work is taking place behind panelled construction hoardings. Although it was not a no-go zone and others accessed the area from time to time for reasons including to get to adjacent facilities that should be cleaned, there were no crib facilities in the immediate area where Mr Perez was camping and it would not be reasonably expected that an employee would exploit a largely unused section of the hospital in that manner.
[113] I do accept that Mr Perez may well have been taking his break at the time. That is, although it was not scheduled at that time, there was apparently some flexibility in the precise timing of those breaks. However, it was reasonable that in these circumstances Mr Meldrum should seek to ascertain what was taking place. He enquired as to whether Mr Perez was alright, and when he awoke, Mr Meldrum advised Mr Perez that he should not be taking his break in that area and that he should be using the crib facilities provided. Mr Perez questioned the location of the crib facilities and whether there was a working microwave.
[114] Importantly, Mr Perez was not counselled or warned about his use of the facilities. That is, he was advised that he should not be sleeping or taking his breaks in the Old ED area but was not disciplined about doing so to that point. This was appropriate because although it might well have been obvious that employees should not be using this area in that manner, Mr Perez had not been informed of that fact and there were no express instructions about such matters.
[115] I also note that although Mr Perez and other workers have a right to a tea break 61 this would not mean that the break can be taken at any place within the hospital.
[116] In all of the circumstances, the actions of Mr Meldrum in terms of the 9 May 2016 incident were reasonable and appropriate. It was reasonable management action taken in a reasonable manner.
7.7 The CCTV footage
[117] I have earlier considered whether the failure to retain the CCTV footage created unfairness for Mr Perez. Mr Perez also contends that this failure was, in its own right, unreasonable conduct that formed part of the bullying behaviour.
[118] It is apparent to me that Mr Perez has a particular focus upon CCTV footage as a form of evidence. It is also clear to me that there are competing considerations surrounding the retention of such footage. That is, there are privacy considerations associated with the viewing and retention of CCTV footage and these must be weighed along with the potential value of such footage as evidence in relevant matters.
[119] In this case, I have found that the absence of the CCTV footage did not lead to unfairness. However, this arises from the particular circumstances including the nature of the exchanges in question and the extent of common ground that, in most cases, exchanges took place. I do, however, consider that the employer’s response to the request for the retention of the CCTV footage was not always appropriate, particularly in terms of the alleged incidents before this application became a known prospect. That is, there is no indication that management took any steps to ascertain why Mr Perez considered the CCTV footage to be relevant and no steps were apparently made to view the footage to consider whether there was any evidentiary value. At least the first of these steps should have been taken in all cases, and where some potential relevance was shown, the second step undertaken.
7.8 The manner in which Mr Perez’s complaints were dealt with
[120] This consideration includes the contentions made by Mr Perez that the employer did not investigate or properly deal with his various allegations and acted both unreasonably and in a manner inconsistent with the relevant policy.
[121] The relevant policy 62 requirements include:
● Employees to take responsibility for raising concerns at a local level. They must also consider what actions could be taken to resolve their concerns, whether they have contributed to the situation, and to ensure that they contribute to the resolution in a reasonable and timely manner.
● Managers to be proactive in addressing any potential conflict, issue or concern and to judge all complaints on their merits and facts. Furthermore, they should take complaints seriously and treat complainants with sensitivity, respect and courtesy. They are to endeavour to have all workplace conflicts disclosed and acted upon, ensure lines of communication are kept open and consider whether they have contributed to the situation complained about. They should use all necessary steps to prevent complaints escalating and ensure appropriate action is taken if the complaint is substantiated.
[122] The policy also sets out a complaint process involving four steps which are as follows:
● Step 1: Consider the approach and take initial action
● Step 2: HR Services or other support
● Step 3: Escalation (only required when resolution is not reached through Steps 1 and 2)
● Step 4: Employee’s right to request review of action or decision.
[123] It is a reasonable inference that Mr Perez does not consider that his complaints were taken seriously when first advanced. There is some justification for this view, at least in relation to the earlier matters. That is, although the policy contemplates matters being resolved at a local level, there is an obligation on a manager to be proactive in addressing potential conflict and dealing with complaints. Further, although I have ultimately found, after detailed consideration of the evidence, little substance, I do not consider that all of the complaints made by Mr Perez were given sufficient attention when first made. Unfortunately, the lack of attention has, in some ways, then become the focus rather than the allegations themselves and opportunities to informally clarify the reasonable expectations of management, and Mr Perez, were not taken.
[124] It is also the case that Mr Perez did not use the complaint process to escalate many of the matters he had raised and this does lead to the conclusion that he was, in effect, willing to store up the matters to bolster his case against Ms Thomas.
7.9 Connivance between Ms Thomas and Mr Meldrum (and others)
[125] Mr Perez contends that Ms Thomas and Mr Meldrum (and others) “connived” in the bullying conduct. He relied upon the concept of connivance including overlooking, being a secret accessary or failing to take steps to prevent it. 63 This allegation was based, in part, upon the suggestion that Mr Meldrum did not properly deal with the allegations. I have largely dealt with this aspect earlier in this decision. To the extent that matters could have been handled differently, this does not suggest that there was any connivance in this case.
[126] This allegation also relies upon the fact that in the initial response provided to the application, Ms Thomas’ contact was nominated as being Mr Meldrum. In that regard, I note that when the original application was made by Mr Perez, Ms Thomas’ contact was nominated by him as being Mr Meldrum. Given that Ms Thomas does not have an individual work email address, this course of action was appropriate. However, to suggest that the employer following the same approach in the response document means that there was connivance between them, is simply without merit.
[127] Mr Perez also relied upon his submissions about the allegedly false evidence given by Mr Meldrum about the status of Ms Thomas, the conduct of Ms Thomas, and the events of 9 May 2016 as support for this proposition.
[128] There is no substance to this allegation.
7.10 The general workplace culture and environment
[129] This arises from the allegations dealt with above and from the fact that Mr Perez has made a number of other allegations against other employees. There is no evidence about those other matters other than the fact that the complaints were made.
[130] I accept that Mr Perez has a perception that various employees behave unreasonably toward him from time to time, however, based upon the evidence that is before the Commission I am unable to make such a finding.
8. Has the applicant been bullied at work within the meaning of the Act?
[131] As indicated above, I have found that many of the incidents and aspects relied upon by Mr Perez did not constitute relevant unreasonable conduct. However, I have found that the following elements could potentially be considered to be unreasonable behaviour:
[132] I have also found that the early responses to the request for the retention of the CCTV footage were inadequate; albeit that this did not lead to unfairness given the particular circumstances of this matter.
[133] In making my findings, I have also considered whether the actions should be considered to be reasonable management action taken in a reasonable manner 64 in line with the approach outlined earlier in this decision. In the circumstances, it is not necessary to determine whether the actions of Ms Thomas, as a Leading Hand, would constitute management action given my findings.
[134] The question then becomes whether the potentially relevant elements identified above mean that Mr Perez was the subject of repeated unreasonable behaviour that created a risk to health and safety within the meaning of s.789FD(1). I have earlier set out what I consider to be the proper application of this provision and I do not repeat that discussion here.
[135] 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.
[136] In Harpreet Singh 65 I dealt with the implications of the need for the unreasonable behaviour to be repeated.66 Having reviewed the authorities discussed earlier in this decision the following conclusion was drawn:
“[19] As is clear from the above, for the behaviour to be ‘repeated unreasonable behaviour’ it cannot be a single occurrence. The definition implies the existence of persistent unreasonable behaviour but might refer to a range of behaviours over time. That behaviour may also be undertaken by an individual or a group of individuals and be directed towards the applicant worker or a group of workers to which the applicant belongs. The unreasonable behaviour must however be repeated.
[20] The definition in s.789FD(1) must also be read conjunctively. That is, the requirements in both ss.(1)(a) and ss.(1)(b) must both be satisfied. This arises because of the construction of the provision and the “and” which links both subsections. This is also the evident intention of the provision.
[21] This means that the Commission must be satisfied that there was conduct whereby an individual (or a group of individuals) has repeatedly behaved unreasonably towards the worker, or a group of workers of which the worker is a member, and that this behaviour created a risk to health and safety.”
[137] On that basis, the potentially relevant unreasonable conduct as I have found it to be involves a group of individuals and although it involves a range of behaviours, it should all be assessed as part of the overall consideration of alleged bullying conduct.
[138] In terms of the risk to health and safety, the fact that Mr Perez was earlier certified as being unfit for work is relevant and indicative of risk. It is not however conclusive in its own right. This arises because the medical 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 any actual unreasonable conduct when viewed objectively.
[139] 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.
[140] It would be evident from my earlier findings that I have found that many of the allegations about unreasonable conduct were not supported by the evidence or were not of a character as to fit within the meaning of bullying conduct established by the FW Act. In terms of the limited circumstances where at least some substance was found, , I have considered these together having regard to the Commission’s present statutory charter. 67
[141] On balance, I am not satisfied that there was relevant unreasonable behaviour towards the applicant (and/or the group of workers to which he belongs) whilst at work so as to meet the requirements of s.789FD of the FW Act.
9. Conclusions
[142] Given my findings in this matter, there is no basis to consider the making of orders as contemplated by s.789FF of the FW Act. Amongst other requirements, a finding of bullying conduct is a prerequisite for the making of orders. 68
[143] Accordingly, this application must be dismissed and I so order.
[144] There are, however, some observations made in this decision that should be considered by management of the hospital. This might lead to some reinforcement of the role of middle management in terms of the best application of the policies and workplace grievance procedures. Further, a review of the manner in which requests for the preservation of CCTV footage are dealt with, would be appropriate.
COMMISSIONER
Appearances:
L Perez, the applicant in person.
J Finlay, of the Office of the Commissioner for Public Employment Northern Territory Government, for the Employer.
Hearing details:
2016
Alice Springs
16, 17 June
Via Video Link from Adelaide to Alice Springs and Darwin
8 July.
Final written submissions:
8 July 2016.
The application was amended by consent on 19 May 2016.
2 Respondent’s written outline of position.
5 Amended Statement of Mr Perez – Exhibit A2 at par 87.
6 Statement of Mr Perez – Exhibit A1 at par 60 and Amended Statement of Mr Perez – Exhibit A2 at par 61.
7 Amended Statement of Mr Perez – Exhibit A2 at par 81.
8 Statement of Mr Perez – Exhibit A1 at par 61 and Amended Statement of Mr Perez – Exhibit A2 at par 62.
9 Transcript PN1444-1448.
10 Statement of Mr Perez – Exhibit A1 at par 72 and Amended Statement of Mr Perez – Exhibit A2 at par 100.
11 Attachment LEP-11 to the Statement of Mr Perez – Exhibit A1.
12 Transcript PN1747-1751.
13 Transcript PN1802.
14 Transcript PN1785.
15 Transcript PN1808.
16 Transcript PN1699.
17 Statement of Mr Meldrum – Exhibit R5 at par 31.
18 Transcript PN1716.
19 Transcript PN1745.
20 Transcript PN1712.
21 Transcript PN1714-1715.
22 Transcript PN1599.
23 Transcript PN1807.
24 Transcript PN1772.
25 Transcript PN1811.
26 Transcript PN1797.
27 Transcript PN1810.
28 Transcript PN1787.
29 Transcript PN1791.
30 (1959) 101 CLR 298.
31 Statutory Declaration of Ms Heinrich – Exhibit A8.
32 Attachment LEP-11 to the Statement of Mr Perez – Exhibit A1.
33 Ibid.
34 Northern Territory Government of Australia, Advice 7: Legal hold order for records <http://www.nt.gov.au/dcis/info_tech/records_policy_standards/records_management_advice/hold_order_for_records.shtml#notes>.
35 Advice 7 helpfully refers to Australian Competition and Consumer Commission v Australian Safeways Stores Pty Ltd and Ors (1998) 153 ALR 393.
36 The Ophelia [1916] 2 AC 206.
37 [1961] SA Law Society Judgment Scheme 11.
38 S.31 of the Crimes Act 1914 (Cth).
39 Attachment LEP-9 to the Statement of Mr Perez – Exhibit A1.
40 Attachment LEP-16 to the Statement of Mr Perez – Exhibit A1.
41 Transcript PN1143.
42 Transcript PN1142.
43 Statement of Mr Perez – Exhibit A1 at par 19 and Amended Statement of Mr Perez – Exhibit A2 at par 21.
44 Transcript PN587.
45 Transcript PN566.
46 Transcript PN 596-597.
47 Transcript PN566, 594.
48 Transcript PN625, PN629.
49 Transcript PN642.
50 Transcript PN646-648.
51 Transcript PN421.
52 Transcript PN442.
53 Transcript PN1212.
54 Transcript PN668
55 Transcript PN689.
56 Amended Statement of Mr Perez – Exhibit A2 at par 71.
57 Transcript PN827.
58 Transcript PN1457.
59 Transcript PN1462-1463.
60 Transcript PN1458.
61 Clause 19 of the Northern Territory Public Sector 2013 - 2017 Enterprise Agreement.
62 Attachment LEP-5 to the Statement of Mr Perez – Exhibit A1.
63 Kelvin Francis McCormick v Colonial Mutual General Insurance Company Limited [1995] TASSC 56 and New Oxford Dictionary.
64 s.789FD(2) of the FW Act.
66 s.789FD(1) of the FW Act.
67 See Amie Mac at [87].
68 S.789FF(1)(b)(i) of the FW Act.
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