[2016] FWC 5592
FAIR WORK COMMISSION

DECISION


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

Xiaoli Cao

v

Metro Assist Inc; Rita Wilkinson

(AB2016/258)

DEPUTY PRESIDENT SAMS

SYDNEY, 19 AUGUST 2016

Application for a Fair Work Commission order to stop bullying – welfare services – long standing complaints – two investigations – external mediation – whether manager’s actions ‘reasonable management action taken in a reasonable manner’ – complaints not bullying – respondent’s policies complied with – investigations fair, reasonable and transparent – no risk to health and safety – application dismissed.

[1] Ms Xiaoli Cao (‘Ms Cao’ or ‘the applicant’), claims she has been bullied at work by her Manager, Ms Rita Wilkinson (‘Ms Wilkinson’). Ms Cao is employed by Metro Assist Inc. (‘Metro’ or ‘the respondent’), as a Tenants Advocate. She commenced employment with Metro in 2008. Her work involves providing welfare and support services to underprivileged and at-risk members of the community in inner and southwestern Sydney, largely through case management of clients of their particular housing or welfare issues.

[2] Ms Cao claims that her Manager has engaged in unreasonable behaviour towards her since 2013, which is said to include the following:

[3] On 12 January 2016, Ms Cao filed an application with the Fair Work Commission (‘the Commission’) for orders to stop bullying under s 789FC of the Fair Work Act 2009 (the Act). Section 789FC of the Act reads as follows:

[4] Ms Cao sought that the following orders be made by the Commission:

[5] On 20 January 2016, a response to the application was filed by Mr Lou Bacchiella, the Chief Executive Officer (CEO) of Metro. For present purposes, the response identified that Metro had conducted two separate investigations into Ms Cao’s complaints against Ms Wilkinson, both of which concluded that Ms Wilkinson had not behaved in the manner described by Ms Cao and that she had not been bullied by her. Notwithstanding these conclusions, both Ms Cao and Ms Wilkinson had agreed to participate in two mediation sessions conducted by a Community Justice Centre and they reached an agreement on 17 February 2015.

[6] Proceedings in this matter commenced on 17 February 2016, when the Commission convened a conference for the purposes of exploring a resolution of Ms Cao’s complaints and the apparent ongoing conflict between her and Ms Wilkinson. Regrettably, no resolution was able to be reached and the matter was listed for hearing on 31 May 2016. Directions were issued for the filing and service of evidence relied on by both parties in the arbitration. At the hearing, Ms Cao was represented by her daughter, Ms S Hardy, and Metro was granted permission to be represented by a lawyer, pursuant to s 596 of the Act. Mr R Hassall appeared for both Metro and Ms Wilkinson.

THE EVIDENCE

[7] The following persons provided written/oral evidence in the proceeding:

The applicant

[8] Ms Cao’s evidence was set out in a chronology of events with corresponding emails and other documents.

[9] Ms Cao claims that during 2012-13, Ms Wilkinson overburdened her with casework and additional shifts. She believed this arose from Ms Wilkinson’s decision to recruit unqualified persons to the team. She said that she became overwhelmed by the extra work and brought her concerns to Ms Wilkinson’s attention in numerous emails sent during 2013. She was also preoccupied with her ill parents in China. On 12 September 2013, Ms Wilkinson left two extra cases in Ms Cao’s pigeonhole, allegedly without consulting her. Ms Cao responded by refusing to take on the extra two cases. It was from this point on that Ms Cao alleges Ms Wilkinson began to bully and harass her.

[10] On 22 November 2013, Ms Wilkinson instructed Ms Cao to complete a task which Ms Cao felt was ‘unreasonable’. Ms Cao also felt Ms Wilkinson’s aggressive tone was intimidating and hampered her autonomy in the workplace. She sent an email to Ms Wilkinson explaining her position. On 3 February 2014, Ms Cao commenced five months’ unpaid leave in order to visit her sick parents in China.

[11] On her return in July 2014, Ms Cao said she requested and was refused a spread of work hours over more days. Despite being instructed not to work her preferred hours to attend training, Ms Cao ignored the instruction. Ms Cao claimed that on 24 July 2014, Ms Wilkinson shouted at her to ‘be independent’ after she was excluded from an email list. She believed this behaviour was shocking and said it caused her a great deal of emotional distress.

[12] On 1 August 2014, the applicant alleged that Ms Wilkinson interrogated her aggressively in front of other staff about the time taken to complete a task. She believed Ms Wilkinson was micromanaging her, which made her feel undermined and embarrassed. Ms Wilkinson allocated another worker’s case to her on 12 August 2014, ignoring her own request to reduce her workload. Ms Cao said Ms Wilkinson also embarrassed and humiliated her in a team meeting on 12 August 2014.

[13] On 12 September 2014, Ms Wilkinson accused Ms Cao of ‘wrongdoing’ in respect of entering case details in the system and demanded she write up detailed case notes. Ms Cao did not believe this was necessary and told her so.

[14] In late September 2014, there were requests from Ms Wilkinson in respect of Ms Cao’s travel expenses and reimbursements. In an email to Ms Wilkinson copying in other employees, Ms Cao accused Ms Wilkinson of bullying her.

[15] Ms Cao’s complaints about Ms Wilkinson reached a formal point when she lodged a grievance with the then-CEO on 14 October 2014. On 14 November 2014, the new CEO Mr Bacchiella responded as follows:

[16] A mediation session was held on 20 January 2015. The next day, Ms Cao claimed Ms Wilkinson belittled her in front of other team members by accusing her of providing a client with inaccurate advice. Ms Cao also believed Ms Wilkinson had instructed the receptionist to record the times she left the office for a break. On 5 February 2015, Ms Cao complained to Mr Bacchiella about Ms Wilkinson’s continued bullying.

[17] On 17 February 2015, an agreement was reached in mediation as follows:

[18] Ms Cao prepared a background paper of her understanding of the above agreement and sent it to Mr Bacchiella and Ms Wilkinson. On 27 April 2015, Ms Cao believed Ms Wilkinson was trying to allocate another caseworker’s work to her.

[19] After that date it was not until 17 November 2015 that a further incident occurred, in which Ms Wilkinson accused her of being disrespectful for not responding to her emails. On 1 December 2015, Ms Wilkinson was alleged to have aggressively accused Ms Cao of leaving work early. On 3 December 2015, Ms Cao wrote to Mr Bacchiella lodging a second complaint regarding those incidents and accusing Ms Wilkinson of breaching the mediation agreement. On 11 December 2015, Ms Wilkinson queried the hours Ms Cao spent at the New South Wales Civil and Administrative Tribunal (NCAT) on Wednesday 25 November 2015 (9:15 am to 6:15 pm) and demanded an explanation.

[20] On 14 December 2015, Mr Bacchiella and Ms Lisa Wilkinson (no relation) from Human Resources interviewed Ms Cao as part of their investigation of Ms Cao’s complaints. Ms Cao prepared her own notes of the meeting after disputing the notes taken by the respondent. Her notes indicate her intention to take legal advice. Ms Cao said that on 22 December 2015, Ms Wilkinson attacked her for ‘doing things differently’ in front of team members.

[21] On 7 January 2016, Ms Cao was advised of the outcome of the investigation as follows (although the letter is dated 22 December 2015 and the applicant was on leave from 23 December 2015 to 6 January 2016):

[22] On 11 January 2016, the applicant advised Mr Bacchiella that ‘I am disappointed, disillusioned and totally dissatisfied with the investigation and outcome…’. Soon after this, Ms Cao obtained medical advice following the stress and anxiety she was experiencing. No workers’ compensation claim was made.

[23] After conferences with the Commission with respect to Ms Cao’s General Protections claim, Johns C recommended on 19 January 2016:

[24] As a result of advice from her doctors, Ms Cao requested and was granted a reduction in her hours of work from 28 hours to 14 hours a week from 18 May 2016 to 18 November 2016. It was agreed that she would work on Monday and Thursday one week and Monday and Friday in the alternate week. However, Ms Cao was still required to report to Ms Wilkinson, given the small team structure involved.

[25] In cross-examination, Ms Cao said she works in a team of five and she had reported to Ms Wilkinson since she first commenced employment in 2008. Ms Wilkinson manages five areas in the service, within which 10 employees are managed by her. Ms Cao agreed that before September 2013, she had always accepted extra cases allocated to her by Ms Wilkinson, but had not accepted extra cases since then.

[26] In respect of being ‘ordered’ by Ms Wilkinson to write a letter and show it to her on 22 November 2013, Ms Cao agreed she had already intended to write the letter anyway. She said it was ‘unreasonable’ for Ms Wilkinson to insist she show her the letter and she wanted to know why. Ms Cao believed that by Ms Wilkinson asking her about a particular case, this was ‘intrusive’. It was ‘unreasonable’ for Ms Wilkinson to disagree with her on how to handle a case.

[27] Ms Cao gave evidence that the respondent had accommodated her request for five months’ unpaid leave. She denied that when she returned, she merely returned to normal duties. She conceded that her role required her to take on urgent cases at short notice, yet she only took on two extra cases in two and a half years.

[28] It was Ms Cao’s evidence that Ms Wilkinson had spoken to her aggressively and shouted. She believed it was unreasonable to be asked to complete case notes, which were unnecessary. Ms Cao accepted that she had been paid all her outstanding expenses.

[29] Ms Cao acknowledged that the outcome of Mr Bacchiella’s first investigation was that she and Ms Wilkinson would engage in mediation conducted by a Community Justice Centre. Despite being aware the mediation was confidential, she prepared a report about it and sent it to Mr Bacchiella. She denied her report undermined Ms Wilkinson or that she was spreading negative rumours about Ms Wilkinson based on anonymous comments made about 5 years ago. Ms Cao said that someone had called Ms Wilkinson ‘two-faced’ without naming the person or the circumstances. Nevertheless, this confirmed her views of Ms Wilkinson.

[30] Ms Cao was asked about an email she wrote, but only sent to herself, in which she described Ms Wilkinson as having ‘you obtain your current position from doing office politics’.

[31] Ms Cao conceded Mr Bacchiella had agreed to her request for counselling and she participated in three sessions.

[32] Ms Cao said that after being dissatisfied with the respondent’s second investigation, she lodged a General Protections claim and a complaint to WorkCover NSW (now Safe Work NSW). Legal Aid had advised her to lodge an anti-bullying claim and a General Protections application. She believed her Safe Work NSW complaint was still pending. Ms Cao agreed that as a result of conciliation before Johns C, she had interim reporting arrangements and had made a request to work two days, rather than four days a week, which had been agreed to.

[33] In re-examination, Ms Cao raised the difference in her caseload compared to that of Ms Rachael McCormick. Ms Cao claimed that Ms Wilkinson did nothing about the disparity in case loads. Ms Hardy put a number of hypothetical questions to Ms Cao which were irrelevant.

Mr Bacchiella

[34] Mr Bacchiella has worked for the respondent in management roles since October 2010. He is directly responsible for six Managers and Team Leaders and indirectly for 55 full-time, part-time and casual employees, and a number of volunteers.

[35] Mr Bacchiella’s evidence detailed the role of Metro and its funding sources from various NSW Government Departments and Agencies. He attached a compendium of the respondent’s policies dealing with governance and human resource matters, including bullying and harassment. The Anti-Bullying policy is annexed to this decision as Annexure A. He said that the respondent offers comprehensive training on these policies which both Ms Cao and Ms Wilkinson had attended. Mr Bacchiella set out the role and duties of both Ms Wilkinson and Ms Cao.

[36] Mr Bacchiella described receiving Ms Cao’s first complaint on or around 27 October 2014 and his investigation of the allegations against Ms Wilkinson. He interviewed both Ms Cao and Ms Wilkinson.

[37] Ms Cao complained that:

[38] Mr Bacchiella determined that:

[39] Mr Bacchiella was aware that Ms Cao and Ms Wilkinson attended two mediation sessions and an agreement was reached. Without requesting it, he received an email from Ms Cao on 22 July 2015 setting out her views on the mediation.

[40] Mr Bacchiella said that in late February 2015, Ms Cao requested an external counsellor paid for by the respondent. The respondent provided her with the names of three independent psychologists and agreed to pay for three sessions. However, Ms Cao did not pursue any arrangements for a session with the named psychologists.

[41] It was Mr Bacchiella’s evidence that Ms Wilkinson had come to him expressing difficulty with managing Ms Cao without it being interpreted by Ms Cao as ‘bullying’. He believed Ms Wilkinson’s requests were reasonable and similar to requests made to other staff, and no other staff member had made complaints about Ms Wilkinson. On 5 March 2015, Ms Wilkinson informed Mr Bacchiella of the adverse impact Ms Cao was having on other team members.

[42] In December 2015, Mr Bacchiella received emails from Ms Cao in which she alleged that Ms Wilkinson had breached the mediation agreement and complained of further bullying behaviour by Ms Wilkinson. This became the second complaint, which he investigated with Ms Lisa Wilkinson, Human Resources Manager. In a meeting with Ms Cao in which she set out her allegations, Mr Bacchiella offered further mediation. Ms Cao said she did not want to report to Ms Wilkinson, had consulted a solicitor and that Ms Wilkinson should undergo leadership training. Mr Bacchiella advised her she needed to continue to report to Ms Wilkinson, but she need only do so by email.

[43] Ms Wilkinson met with Mr Bacchiella and Ms Lisa Wilkinson and denied ‘targeting’ Ms Cao. She explained that:

[44] Mr Bacchiella concluded that:

[45] Notwithstanding the above, Ms Wilkinson agreed to undertake further leadership training and that external peer support would be offered to the team if it was being adversely affected. Ms Cao was advised of this outcome on 22 December 2015.

[46] On 12 January 2016, Ms Cao filed a General Protections claim. In light of this, Mr Bacchiella decided to have Ms Cao report to Mr Paul Ahearn until the matter was completed. As a result of a conference, convened by Johns, C on 19 January 2016, the Commission issued the recommendation set out at paragraph [23] above. Mr Bacchiella believed that the interim reporting arrangements were not sustainable in the long term as the team was small and consisted of part-time employees.

[47] A third complaint was received from Ms Cao alleging ‘harsh’ treatment by Ms Wilkinson during a meeting which Mr Bacchiella attended on 22 December 2015. During the meeting, Ms Cao expressed her belief that her approach about ‘cold calls’ to the office was correct, despite it being contrary to policy. Mr Bacchiella did not believe Ms Wilkinson’s comments were inappropriate or constituted bullying. No further action was taken in respect of the third complaint as the application for an order to stop bullying, overtook it. Mr Bacchiella said that on 22 April 2016, he met with a Safe Work NSW inspector concerning the same complaints made by Ms Cao against Ms Wilkinson.

[48] In Mr Bacchiella’s view, Ms Cao had not and is not being bullied by Ms Wilkinson. In any event, the respondent has put in place a number of measures to minimise any risk of bullying and to ensure management action is reasonable. These include:

[49] Mr Bacchiella was confident that Ms Cao’s complaints were properly investigated and had not revealed any bullying or unreasonable requests by Ms Wilkinson. Ms Wilkinson’s requests to Ms Cao were in accordance with the respondent’s policies. He expressly rejected criticism of him by Ms Cao over the investigations and the efforts to minimise any impact on her health. He had arranged for counselling and different interim reporting. He noted Ms Cao’s medical evidence was both retrospective and belated.

[50] The respondent had arranged for mediation and for Ms Wilkinson to attend leadership training, which she undertook voluntarily. Support and assistance, including compassion for Ms Cao’s request for five months’ leave and working two days a week, had been provided. Mr Bacchiella believed that Ms Wilkinson had merely exercised her judgment and responsibilities as a Manager, while Ms Cao had continuously refused to respond to, or comply with reasonable requests with respect to workload, leave, expenses and adherence to the respondent’s policies and procedures.

[51] Mr Bacchiella believed that the respondent takes its duty of care responsibilities seriously. He noted that no one else had complained about Ms Wilkinson or himself. He stated that Metro would not be apologising to Ms Cao or have her supervised by someone else. There was no one else within a small team who had the skillset or expertise in tenancy issues to do so.

[52] In oral evidence, Mr Bacchiella said that almost immediately after he became the CEO, he had received complaints from Ms Cao about Ms Wilkinson. These were only allegations at the time, and he took steps to investigate the complaints. He did not believe there was any direct threat to Ms Cao’s health at the time, as the complaints spanned a considerable period of time.

[53] Mr Bacchiella acknowledged that he had introduced interim reporting measures in January 2016 as a result of Ms Cao’s s 372 General Protections application to the Commission. Mr Bacchiella recalled that there had been a mediation agreement between Ms Cao and Ms Wilkinson and then a period of almost a year where no complaints were made.

[54] Mr Bacchiella agreed that he had not interviewed Ms Cao’s fellow team members, who had expressed discomfort over a meeting he had attended in which Ms Wilkinson accused Ms Cao of giving incorrect advice. One of the employees, Ms Botica, actually sought advice from the relevant union. He agreed he met only with Ms Cao and Ms Wilkinson, but he had been present in any event and had observed what had occurred. He could not recall any accusation being made against Ms Cao of providing incorrect advice to a client. Mr Bacchiella also recalled a team meeting concerning the policy of handling ‘drop-in’ clients. Ms Wilkinson had simply asked Ms Cao if she had departed from the policy. Mr Bacchiella believed the policy needed to be reviewed to ensure consistency when another team member (Ms Paridis) expressed support for Ms Cao’s handling of the ‘drop-in’ issue.

[55] Mr Bacchiella was asked about Ms Wilkinson’s evidence and said that ‘Xiaoli was not happy that I asked her to justify the $30 reimbursement for two days per month and reacted by screaming at me.’ He agreed that this might be seen to be workplace harassment (if true), but he did not believe he needed to take direct action, as this was in the context of Ms Wilkinson’s concerns about her own ability to manage Ms Cao. He would be reviewing all the allegations.

[56] As to Ms Cao’s request to reduce her hours to 14 hours a week, Mr Bacchiella said that he did not agree to Ms Cao being supervised by someone other than Ms Wilkinson. However, supervision was only by email reports to Ms Wilkinson and not face-to-face contact. It was inappropriate for Mr Ahearn to supervise her on an ongoing basis, as he had his own significant workload.

[57] In re-examination, Mr Bacchiella explained that, with respect to the incident of Ms Cao alleging that Ms Wilkinson screamed at her, Ms Wilkinson had not requested any action be taken and it became part of the wider investigation involving Ms Cao’s complaints.

Ms Wilkinson

[58] Ms Wilkinson has been employed by the respondent since 1999. She commenced her role of Manager, Tenancy and Financial Inclusion in August 2014. Ms Wilkinson supervises over 10 staff members, who work a mix of full-time, part-time and casual hours. Ms Wilkinson said that Ms Cao’s role is responsible for providing:

[59] Ms Wilkinson said that during 2015 and 2016, Ms Cao had taken over 240 hours of annual leave and personal/carer’s leave. Two other team members had taken considerable hours of personal leave, meaning she had to assume ongoing casework in addition to her role as Manager. Ms Cao has reported to Ms Wilkinson since 2008, and until late 2013, they had a good working relationship. In late November 2013, Ms Wilkinson had queried Ms Cao about her hours of work at a NCAT hearing and the need to contact her if she left work early.

[60] Ms Wilkinson set out the various allegations made against her by Ms Cao in late November 2014. Ms Wilkinson denied behaving aggressively towards or intimidating Ms Cao, and denied that her requests of Ms Cao amounted to bullying. Ms Wilkinson believed Ms Cao was reluctant to provide or discuss files, and resented being asked about her files. Ms Wilkinson said that Ms Cao had a history of non-attendance at staff forums. She denied shouting at her, speaking abruptly to her or micromanaging her.

[61] As to Ms Cao’s claim that she was overworked, Ms Wilkinson said that Ms Cao had never provided her with details of her ongoing cases, and refused to complete casework summary reports, which were needed to ensure cases were equitably allocated across the team. Ms Wilkinson denied requiring Ms Cao to maintain a higher standard than others and denied she delayed processing her reimbursement claims in an attempt to bully her.

[62] Ms Wilkinson said she was surprised that shortly after their mediation agreement, Ms Cao sent her an email raising the same issues discussed at the mediation, and other matters. Ms Cao accused her of abusing her power, making ridiculous demands and bullying. Ms Wilkinson believed Ms Cao had no intention of honouring the mediation agreement and would continue to accuse her of bullying. Ms Wilkinson believed Ms Cao’s letter to Mr Bacchiella about the mediation was designed to undermine it.

[63] On our around 14 December 2015, Ms Cao made a second list of complaints against her. Ms Wilkinson denied shouting at Ms Cao, acting aggressively or treating her differently to her detriment. Ms Wilkinson believed Ms Cao’s language about her was ‘mean and disparaging’. Ms Wilkinson found Ms Cao’s claim of her being a racist was without merit and offensive. Rather, Ms Wilkinson believed she was being bullied by Ms Cao’s continued false allegations and her refusal to accept any performance direction or management from her. It was Ms Cao who had, on occasions, yelled at her.

[64] Ms Wilkinson was of the opinion that Ms Cao had refused to accept her as a manager since August 2014 and this explained her behaviour and attitude towards her. As for being overwhelmed by work, Ms Wilkinson said Ms Cao had never informed her of work-related stress or provided her with medical evidence. When she returned from five months’ leave, she took over the same number of files that a locum had attended to in her absence, without complaint.

[65] Ms Wilkinson denied Ms Cao’s version of the meeting on 22 December 2015. Rather, Ms Cao became worked up and quite emotional. Ms Wilkinson tried to get her to slow down by saying ‘whoa… whoa… whoa…’, not ‘wow… wow… wow…’. She had not insulted her. Ms Wilkinson recalled one occasion on which she had asked the receptionist when Ms Cao had returned from lunch, as she had noticed Ms Cao had been taking extended breaks to which she was not entitled.

[66] In relation to the orders sought by Ms Cao, Ms Wilkinson said:

[67] In cross-examination, Ms Wilkinson said that she had requested Ms Cao to prepare case notes in November 2013 concerning a particular rental repayment agreement, so that if someone needed the information and she was not there, it would be on file. To date, Ms Cao had not provided the information.

[68] Ms Wilkinson said that Ms Cao’s request for reduced daily hours was not consistent with the service being funded to operate between 9:00 am and 5:00 pm. The policy had changed in 2015. In any event, this decision was made by the CEO, and time off in lieu had to be approved. Ms Cao refused to accept the direction and took the time off in lieu she had wanted anyway.

[69] With respect to the reimbursement of expenses, Ms Wilkinson went to the accounts manager after noticing some discrepancies and then raised it with Ms Cao. Ms Wilkinson conceded there was a delay in approval being finally given. With respect to Wi-Fi, Ms Wilkinson had asked her what it was for and Ms Cao did not reply or provide any explanation.

[70] As to the ‘drop-in’ client policy, Ms Wilkinson said that the policy was started in August 2014, and in December 2015, Ms Cao had informed the team at a meeting that she was doing something different to what the policy required. As a result, a review of the policy was to be undertaken in 2016.

[71] Ms Wilkinson said that she had noticed that it was not unusual for Ms Cao to not be in her office in the afternoon and that she would work over lunch and go out around 3:00 pm and not return. Ms Wilkinson took no action over this issue.

[72] Ms Wilkinson said that in making comparisons about workload, it is necessary to get information from team members as to ongoing open cases, types of cases and their complexity. Ms Cao had made comments about other team members’ workloads, when they had expressly told her not to do so.

[73] Ms Wilkinson acknowledged that Ms Cao’s last performance appraisal was in 2014. She said this was because it had become increasingly difficult to communicate with Ms Cao and she would not follow her instructions.

SUBMISSIONS

For the applicant

[74] Ms Cao relied on the definition of bullying found in s 789FD of the Act, and on a decision of Hampton C in Re: SB [2014] FWC 2104, to establish that Ms Wilkinson’s behaviours were unreasonable, repetitive and amounted to bullying (as defined). She described the specific behaviours thus:

[75] Ms Cao submitted that these behaviours exposed her to actual harm to her health and safety, as demonstrated by the medical reports from her general practitioner and psychologist. Ms Cao argued that there was a causal link between her symptoms and the workplace stress she was experiencing due to Ms Wilkinson’s bullying.

[76] Ms Cao set out the relevant provisions of the Work Health and Safety Act 2011 (NSW) to argue that Mr Bacchiella had not fulfilled his duty of care to her by failing to provide interim reporting measures and ‘deliberately conducted a shallow and biased investigation’. By so doing, Mr Bacchiella knowingly allowed the risk of harm (to her) to be perpetuated.

[77] Ms Cao rejected the respondent’s claim that it was not practical to change her reporting arrangements because interim reporting arrangements had been put in place in January 2016 and continued to operate. She said that despite Mr Bacchiella’s knowledge of the risk to her health and safety after repeated communications with him, he took no steps to minimise the risk and effectively facilitated the bullying towards her.

[78] Ms Cao opined that despite all the investigations, correspondence, mediation and discussions, Mr Bacchiella and Ms Wilkinson maintained her claims were baseless. Their failure even to acknowledge her grievances justified the making of the orders sought. She believed the orders were the only mechanism available to protect her from the repeated unreasonable behaviour of Ms Wilkinson.

[79] Ms Cao submitted that she had demonstrated that ‘the respondent’s behaviour fundamentally lacked any form of intelligible justification and therefore must be understood as bullying’. She contended that the respondent had disguised the unreasonable nature of its behaviours as management action and had falsely accused her of incompetence, wrongdoing and inappropriate behaviour to hide its ‘abuses of power’ as corrective action.

[80] Ms Cao categorised the accusations made against her as:

[81] If these allegations were true, then the respondent had valid grounds for her dismissal. Ms Cao rationalised that since she had not been disciplined, let alone dismissed, and there was no evidence to support these allegations, that it really demonstrated what lay behind the respondent’s unreasonable actions. Ms Cao concluded that these allegations were malicious and libellous, and constituted further examples of bullying against her.

For the respondent

[82] Mr Hassall submitted that Ms Cao had not been bullied within the meaning of Part 6-4B of the Act in that:

[83] Mr Hassall set out the history of the applicant’s complaints against Ms Wilkinson and the actions taken by Mr Bacchiella to investigate her numerous complaints. Mr Bacchiella found that Ms Wilkinson had acted:

Despite his conclusions, Ms Cao disputed the outcome of his investigations and filed a s 372 (General Protections) application and a bullying complaint with Safe Work NSW.

[84] Mr Hassall said that the issues in this case were, firstly, whether Ms Wilkinson’s actions were reasonable management action carried out in a reasonable manner and, if the Commission were to find it was not, whether her actions amounted to bullying and were at risk of continuing. Mr Hassall submitted that ‘unreasonableness’ is a high threshold at law and the test of ‘reasonable management action’ is likely to mean:

[85] Mr Hassall said the onus of proof was on Ms Cao to demonstrate that the management action lacked any evident and intelligible justification. The test was an objective one.

[86] Mr Hassall referred to Ms Cao’s own evidence of being dissatisfied with Ms Wilkinson, her refusal to comply with her instructions and her disregard for the respondent’s policies and procedures. This included the following:

[87] Mr Hassall put that the respondent had acceded to Ms Cao’s requests where possible and implemented measures to rebuild the relationship between Ms Cao and Ms Wilkinson. However, the respondent was not prepared to demote Ms Wilkinson in favour of Ms Cao’s preferred manager. Ms Cao reacted adversely to every attempt to obtain information from her and whenever she was questioned. In the context of the operational requirements of the business, its budgets and operational hours, Ms Cao’s unreasonable requests could not be accommodated. Finally, Mr Hassall said that the application should be dismissed as Ms Cao had not been subject to workplace bullying and was not at risk of bullying.

CONSIDERATION

Statutory provisions and relevant principles

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

[89] Section 789FF deals with the making of orders by the Commission. It is set out as follows:

[90] There is no dispute that Metro is a constitutionally-covered business for the purposes of being a respondent to an application under s 789FC of the Act. Further, there is no doubt that Ms Cao is a worker for the purposes of s 789FC(1) of the Act and that the incidents alleged to constitute bullying occurred while Ms Cao was ‘at work’. However, I note that the incidents in 2013 obviously occurred before the commencement of Part 6-4B of the Act on 1 January 2014. In accordance with the Full Bench decision in McInnes [2014] FWCFB 1440, incidents of alleged bullying behaviour occurring before the commencement of Part 6-4B are able to be taken into account in proceedings brought under s 789FC of the Act, conditional upon the alleged bullying behaviour continuing beyond 1 January 2014.

[91] While strongly denying the allegations of bullying, the respondent did not contest Ms Cao’s belief that she has been bullied at work. There is no suggestion that Ms Cao’s ongoing employment is threatened by dismissal, or that she intends to resign, or that either party wishes to otherwise bring her employment to an end. As I understand it, Ms Cao remains ‘at work’, albeit under an agreed arrangement for two days a week and under a different interim reporting arrangement until this matter is concluded. This means that Ms Cao must not only establish that she has been bullied at work within the meaning of s 789FC, but that there is a risk to her health or safety which justifies orders being made by the Commission under s 789FF of the Act.

[92] For the above reasons, I am satisfied that Ms Cao’s application under s 789FC is a valid application for determination by the Commission.

[93] There is no doubt that the numerous incidents, occurring over almost three years and alleged by Ms Cao to constitute examples of her being bullied by Ms Wilkinson, took place (Mr Hassall conceded as much). Accordingly, it is unnecessary for the Commission to make findings as to whether the incidents actually occurred. It is plainly obvious that the essential issue to be determined by the Commission is whether any, some or all of the incidents, complained about by Ms Cao, constitute actual bullying such as to justify the making of anti-bullying orders under s 789FF or, in the alternative, as strongly pressed by the respondent, that the incidents were no more than ‘reasonable management action carried out in a reasonable manner’.

[94] In GC [2014] FWC 6988, Hampton C said at paragraphs 45-59:

[95] In Amie Mac v Bank of Queensland Limited & Ors [2015] FWC 774, Hatcher VP said at paragraphs 87-9:

[96] I turn now to the specifics of this case. In my view, facts and circumstances referred to above, serve to demonstrate some common features of applications brought under s 789FC of the Act. It is manifest that Ms Cao holds an unshakeable conviction that she has been bullied by Ms Wilkinson over the course of nearly three years. My impression, from observing Ms Cao, is that her conviction is genuinely held by her. However, it does not necessarily follow that Ms Cao’s conviction is objectively reasonable or that she was actually bullied, within the meaning of s 789FD of the Act, or as the term might generally be understood by the objective bystander.

[97] Ms Cao’s allegations have been the subject of two investigations, a mediation agreement, a s 372 General Protections application, a complaint to Safe Work NSW and, of course, these proceedings. In my view, Ms Cao’s dogged, single-minded belief in the righteousness of her cause of action, no matter what the result of any investigation of her complaints, particularly those conducted by the employer, she was not prepared to accept any outcome, unless it unequivocally vindicated her complaints against Ms Wilkinson and resulted in disciplinary action being taken against Ms Wilkinson. Even accepting that Ms Cao was correct in her allegations against Ms Wilkinson, disciplinary action against Ms Wilkinson was never going to be an outcome, nor would it be appropriate for orders of that kind to be made by the Commission. The underpinning intent of the Commission’s anti-bullying jurisdiction is to correct behaviour, not to serve as a vehicle for revenge or retaliation.

[98] Like many anti-bullying cases, the answer to this application is not necessarily found by defining what bullying is, but rather, what it is not. This appears to be the statutory purpose of the words in subs 789FC(2):

[99] In my judgement, Ms Cao has little or no understanding of what bullying behaviour in the workplace is. Rather, she focussed entirely on how she felt about the incidents involving Ms Wilkinson, and not on whether these incidents were reasonable management action carried out in a reasonable manner.

[100] In essence, Ms Cao’s allegations seem to me to be a disguise for another unrelated reason why Ms Cao steadfastly holds to her view that she has been bullied by Ms Wilkinson. In my view, Ms Cao’s allegations have their origin in the fact that she did not get a promotion she had applied for in 2013, and that Ms Wilkinson was promoted around this time. Her disappointment turned to resentment, then antagonism and finally to an arrogant and blatant refusal to comply with Ms Wilkinson’s directions or acceptance of Ms Wilkinson’s authority. It became a serious management and interpersonal office problem that could not be ignored.

[101] Ms Cao, unsurprisingly, denied that her views of Ms Wilkinson and her dealings with her had anything to do with what happened in 2013, but there are examples in her evidence which lead me to a different conclusion.

[102] Firstly, in an email dated 25 January 2015, which Ms Cao said she had just written to herself, she said, inter alia, ‘You obtain your current position from doing office politics.’ When pressed, Ms Cao said in transcript:

[103] Secondly, throughout her materials, Ms Cao continually refers to Ms Wilkinson as the Team Leader, rather than as the Manager, as if she cannot bear even to think of Ms Wilkinson as being a Manager.

[104] Thirdly, as previously mentioned, the orders Ms Cao originally sought in this case included orders that Ms Wilkinson be disciplined and demoted. To my mind, this demonstrates the motivation of Ms Cao was to secure some form of revenge, because Ms Wilkinson was promoted and she was not.

[105] Fourthly, I accept Ms Wilkinson’s evidence that she felt Ms Cao resented her promotion and refused to recognise her role as Manager as a result.

Findings on Ms Cao’s complaints

[106] I have carefully reviewed each of the examples of alleged bullying by Ms Wilkinson towards Ms Cao, particular with respect to the numerous emails that were tendered in the proceedings.

[107] My reading of the emails in 2013-14 disclose that while Ms Cao was raising issues about her excessive workload, Ms Wilkinson’s responses were courteous, co-operative and even friendly. They were certainly not aggressive. I observe that Ms Cao quite improperly sought to compare her workload with others in the team, which she had no right to do. She did so even though she had been expressly told by others in the team that they did not want her making comments about their workloads.

[108] It is clear to me from the emails after 22 November 2013 that Ms Cao believed Ms Wilkinson was intimidating her. However, it is my opinion that the undercurrent was that Ms Cao believed Ms Wilkinson’s requests and instructions were limiting her autonomy and therefore any scrutiny of where and what she was doing called into question her professional experience and expertise. Even so, I consider Ms Wilkinson’s requests were always polite and non-threatening, even when it was Ms Wilkinson who was provoked by Ms Cao refusing to provide information on her expenses, refusing to write up case notes for files and, on one occasion, blatantly ignoring Ms Wilkinson’s direction not to take particular hours off as time off in lieu. It appears to me that Ms Cao wanted to ‘run her own race’, with little supervision or oversight, and when Ms Wilkinson made reasonable requests of her, she perceived this as questioning her professionalism. It was nothing of the sort according to the respondent’s policies.

[109] I also note that Ms Cao’s requests for five months’ leave for personal reasons and her requests to reduce her working hours were not resisted by management or Ms Wilkinson. On the contrary, those requests were readily acceded to, as were the suggestions for mediation and interim reporting arrangements. However, even the interim reporting arrangements were criticised and rebuffed by Ms Cao.

[110] In any event, Ms Wilkinson’s relatively restrained responses and reasonable requests must be viewed in the context of the extreme language used by Ms Cao when referring to Ms Wilkinson and her alleged conduct. It was clear to me that Ms Cao was intent on undermining Ms Wilkinson, albeit in subtle ways. For example, after an agreement was reached in mediation - which was intended to be confidential - Ms Cao prepared a background paper of what she understood to have been the agreement and sent it to Mr Bacchiella. In it, she repeated the same accusations against Ms Wilkinson and her own negative views of Ms Wilkinson’s conduct. She even raised unsubstantiated opinions of unnamed persons given five years earlier that ‘she [Ms Wilkinson] has two faces, she is not easygoing and very ambitious in a bad way’. This was hardly reflective of the mediated agreement between Ms Wilkinson and Ms Cao.

[111] What I also found rather curious was that there was a large gap, from April 2015 to 17 November 2015, when there was seemingly no report of any incident between the pair. This goes to the question of whether the alleged behaviour was repeated behaviour of the requisite kind required by s 789FD(1).

[112] As to the allegation that Ms Wilkinson belittled and humiliated Ms Cao in team meetings, there was no corroborating evidence brought by Ms Cao that other team members believed Ms Wilkinson was acting in this way towards her. The highest the evidence got was two employees expressing concern at the tone of the meeting. In fact, the two employees record:

Ms Cao could have summonsed other team members to give their version of what occurred in these meetings. The only corroborating evidence is from Mr Bacchiella, who attended at least two team meetings. He did not accept that Ms Wilkinson had acted in a bullying manner (humiliating or belittling) towards Ms Cao. Given my overall assessment of the witness evidence, I accept Mr Bacchiella’s version of events and his assessment of the conduct of Ms Wilkinson.

[113] That said, while I am prepared to accept that Ms Wilkinson’s verbal directions to Ms Cao may have been direct or even forceful, that is a long way short of a claim that she was shouting, hostile and angry. It most certainly does not amount to bullying.

[114] It is difficult to reconcile Ms Cao’s allegations that the respondent and Ms Wilkinson had not complied with Metro’s policies and procedures when she wilfully sought to breach them herself, or seek an exemption from the policy (as she did in August 2015 with respect to her request to change her hours). In addition, Ms Cao conceded that there was a policy in respect of handling ‘drop-in’ clients, but that she just happened to disagree with it.

[115] There were further accusations that the respondent had not conducted proper or transparent investigations, which resulted in unfair outcomes for Ms Cao. There is no substance to these claims. As mentioned earlier, nothing would have satisfied Ms Cao unless the outcome was exactly as she wanted it. In my view, Mr Bacchiella’s investigations, which included interviewing both Ms Cao and Ms Wilkinson, consulting with Human Resources staff, and actually being present when Ms Cao’s complaints were said to have occurred, were fair, reasonable and transparent. Ms Cao was given every opportunity to put her case and her version of events. In some cases, she followed up with missives as to how she perceived the investigations and their outcomes. There is no mandatory requirement on the employer to engage an outside or external person to conduct the investigations. In any event, I doubt it would have made any difference if an external investigator found against Ms Cao’s complaints.

[116] Notwithstanding Mr Bacchiella’s finding that there was no basis for Ms Cao’s claims of bullying, he recommended mediation, encouraged Ms Wilkinson to undergo further management training (which she did voluntarily) and accepted Ms Cao’s medical certificates and requests for reduced hours and different interim reporting arrangements. Ms Cao was satisfied with none of this. In my opinion, it was Ms Cao who was behaving unreasonably. I am satisfied Mr Bacchiella’s two investigations were sound, appropriate and responsive.

[117] In dealing with the applicant’s initial complaints of being overworked, I accept Mr Bacchiella’s and Ms Wilkinson’s evidence that Ms Cao was treated no differently to other members of the team. To suggest that being given two extra files in two and a half years was being overwhelmed by work was an absurd gross exaggeration. In any event, Ms Cao’s own evidence was that extra files were taken up in cases of urgency, or the absence of other staff. In a small team environment of professionals that was expected and routine. In any event, Ms Cao did not even end up dealing with the files, because she adamantly refused to do so. It is somewhat difficult to claim that you are overworked when you refuse to do the extra work. I note that there was no disciplinary or performance-related action taken against Ms Cao for this refusal. Moreover, Ms Cao’s claim that she was given more work when she returned from five months’ leave does not sit comfortably with the evidence. I accept that Ms Cao took up the work of the locum who had filled in for her and that at no time had the locum complained about Ms Wilkinson or an excessive workload.

[118] While I have not determined this case on witness credit per se, it would be remiss of me not to comment on the demeanour of, and evidence given by the witnesses in this case. Regrettably, I found Ms Cao to be an argumentative and defiant witness who sought only to answer questions which she believed best suited her case against Ms Wilkinson. Not once was she prepared to accept that any of her behaviour or conduct was even inappropriate, including when the evidence was plainly contrary to her version of events. Ms Cao’s evidence was completely overwhelmed by her own belief that she had done nothing wrong and Ms Wilkinson was the aggressor - the bully.

[119] On the other hand, I found Ms Wilkinson’s evidence to have been truthful and believable. Although understandably nervous and feeling pressured, I cannot accept that Ms Wilkinson’s conduct was unreasonable or that any of the incidents alleged by Ms Cao constituted examples of bullying behaviour. She was acting within the parameters of managing a small team in a fair and equitable manner. Her requests for Ms Cao to comply with the policies of the respondent and her discretionary directions were routine, regular and unremarkable. The requests were not made to belittle, humiliate or otherwise cause hurt or distress to Ms Cao. It was not bullying.

[120] It is incumbent on me to consider the medical evidence provided by Ms Cao in her defence. This consisted primarily of a letter from her General Practitioner dated 23 January 2016 and a letter from her referred psychologist dated 31 January 2016.

[121] In the letter from Dr Mary Chung, the General Practitioner reports as follows:

[122] The letter from Mr Wei Lu, a registered psychologist, said:

[123] It is clear that from January 2015, Ms Cao was visiting her General Practitioner, and that she was consulting with a psychologist from May 2015 to January 2016. However, there was no evidence that Ms Cao was experiencing an overwhelming workload or was suffering from any detrimental physical, emotional or psychological issues from the second half of 2013 through to 2014, which was serious enough for her to seek medical advice.

[124] It is also unclear from the evidence whether Ms Cao had made the respondent aware that she was suffering physical and psychological stress throughout the period from late 2013 to early 2015 (except for her five months of leave in early 2014) such as to result in her being required to take personal leave. However, in February 2015, Ms Cao advised Mr Bacchiella that she was suffering from headaches and sleeplessness, and that she had consulted her General Practitioner and psychologist. She requested that the respondent pay for such sessions. Mr Bacchiella agreed to pay for three sessions, if she attended one of three independent psychologists. She declined to do so, claiming it was not possible to arrange a consultation.

[125] What is apparent from the medical evidence (such as it was) is the following:

[126] While I acknowledge that this limited medical evidence may establish a causal link between Ms Cao’s physical and mental state and how she felt she was being treated at work, it does not establish a causal link between how she felt and Ms Wilkinson’s actual interactions with her, such as to establish that Ms Wilkinson had bullied her.

[127] It was not until 8-10 May 2016 that Ms Cao saw both practitioners and they recommended that she reduce her workload due to stress at work, with Dr Chung expressly recommending she work two days a week. No medication appears to have been prescribed. The evidence reveals that the respondent agreed to this request, without hesitation. There has been no further medical evidence of Ms Cao’s condition since early May 2016.

In a rather strange final submission, Ms Cao queried why that she had not been disciplined or dismissed if she was guilty of any wrongdoing or breaches of policy according to the respondent. In my view, Ms Cao should be thankful she was not disciplined for her constant refusal to comply with reasonable directions of her Manager. She should be very careful about her conduct in the future. I consider that in the context of threats of legal action, actual action taken by Ms Cao and her unwillingness to accept any rapprochement with Ms Wilkinson, it was perfectly understandable that the respondent was ‘treading on eggshells’ every time a new complaint was made that was unresolved to Ms Cao’s satisfaction. In my opinion, it had ample evidence to have justified some form of disciplinary action being taken against Ms Cao.

CONCLUSION

[128] For the aforementioned reasons, I have found that the numerous examples of allegations of unreasonable behaviour by Ms Wilkinson were not supported by the evidence. Nor were the allegations of a character as to fit within the meaning of bullying conduct found in the Act. The actions of Ms Wilkinson were reasonable management action carried out in a reasonable manner. The respondent has appropriate policies for dealing with allegations of the kind made by Ms Cao, and it investigated her complaints in a fair and transparent fashion.

[129] Given that the prerequisite to the making of anti-bullying orders is based on a further risk to the health and safety of Ms Cao, as contemplated by s 789FF of the Act, is a finding that the conduct complained about was bullying as defined, this application must be dismissed. I order accordingly.

[130] The only two recommendations I would make in this case are firstly, in future, where an employee vigorously asserts that an internal investigation into bullying allegations will lack transparency or independence, it may be prudent for the employer to engage an independent third party to conduct the investigation. I hasten to add that in the circumstances of this case it would have unlikely made any difference to the outcome.

[131] Secondly, Ms Cao is an intelligent and an experienced professional in her area of expertise. In my view, a workable, courteous and professional relationship between Ms Cao and Ms Wilkinson is not beyond salvaging. As difficult as it might be, I strongly recommend they both work very hard to achieve such a result.

DEPUTY PRESIDENT

Appearances:

Ms S Hardy for the applicant.

Mr R Hassall with Ms J Kneebone, solicitors, for Metro Assist Inc.

Hearing details:

2016;

Sydney,

31 May.

Annexure A

15. WORKPLACE BULLYING

15.1 Preamble

Bullying at work is any form of behaviour which is offensive, intimidating, malicious or insulting or is an abuse or misuse of power intended to undermine, humiliate, denigrate or injure individuals or groups. Bullying leads to stress and then to illness and behavioural problems if prolonged. A very high proportion of people subjected to bullying change their job as a result.

Bullying at work is a health and safety, employment rights and a trade union issue. It causes job insecurity and adverse health effects and often arises out of an imbalance of power in the workplace, which a trade union can address.

Bullying can happen between any co-workers, or by clients (horizontal relationship), customers, contractors or others from outside the workplace.

Bullying can take many forms:

● Direct verbal and physical threats

● Unfair use of disciplinary and assessment procedures

● Blocking access to promotion, training, overtime

● Setting impossible deadlines and targets

● Withholding information essential to do the job properly

● Excessively tight supervision

● Public humiliation including being shouted at

● Persistent and undue criticism including inaccurate accusations about quality of work

● Undermining responsibility

● Abusive references to age, sex, race, disability or other personal characteristics

● Spreading malicious rumours

● Physical isolation from other workers

Under occupational health and safety legislation, employers have a legal duty to control all health and safety hazards in the workplace. This includes organisational structures and behaviours which may lead to bullying. Employers have to consult with their employees about policies and procedures to eliminate all hazards and risks from the workplace. There is no excuse for causing or allowing bullying.

15.2 Policy

The Management Committee of the Metro Assist will not tolerate any form of bulling in the workplace. Therefore, it assumes responsibility for raising awareness and providing training for all staff, volunteers and students. In addition, The [sic] Management Committee will provide support for those who are experiencing bullying. Staff or Management Committee members engaged in any form of bullying will be subject to the grievance procedure.

15.3 Procedures for Staff’s [sic] Member’s Supervisor

15.4 Procedures for all Staff

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