| [2016] FWC 5722 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Mr Bevan Gillies
(AB2016/463)
COMMISSIONER CLOGHAN |
PERTH, 19 AUGUST 2016 |
Application for an FWC order to stop bullying.
[1] Mr Bevan Gillies (Mr Gillies or Applicant) has made an application for an order to stop bullying.
[2] The application for an order is against Mr Mofflin, Western Australian Depot Manager (Mr Mofflin), HPS Transport Pty Ltd (HPS).
[3] The application is made in accordance with s.789FC(1) of the Fair Work Act 2009 (FW Act).
[4] At the hearing into the application, Mr Gillies represented himself and gave evidence on his own behalf.
[5] Mr Mofflin also represented himself and gave evidence on his own behalf.
[6] These are my reasons for decision in dismissing Mr Gillies’ application on transcript.
[7] Section 789FD of the FW Act provides when a worker is bullied at work as follows:
“(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.”
[8] Section 789FF of the FW Act relevantly provides:
“(1) If:
(a) a worker has made an application under section 789FC; and
(b) the FWC is satisfied that:
(i) the worker has been bullied at work by an individual or a group of individuals; and
(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;
then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.
(2) ...”
[9] For a worker to be bullied at work, the statutory context is that the behaviour directed towards the worker is:
[10] “Repeated” is more than a single incident.
[11] “Unreasonable behaviour” is determined objectively having regard to all the circumstances.
[12] A “risk to health and safety” is the possibility of being exposed to harm or danger to one’s health and safety. The possibility or risk must be rationale and not an ideation.
[13] A person is not bullied if it is reasonable management action carried out in a reasonable manner. Reasonable management action refers to the ability of employers to take appropriate management action, including responding to poor performance, taking necessary disciplinary action and directing and controlling the way work is carried out.
[14] HPS is a transport company.
[15] As part of its business, HPS transports freight between South Australia and Western Australia.
[16] Mr Mofflin commenced employment with HPS on 29 November 2013.
[17] As Depot Manager, Mr Mofflin is responsible for its operations, administration, maintenance, staffing, sales, company accreditation and occupational health and safety.
[18] Mr Gillies commenced employment on 17 March 2014. Mr Gillies is a Grade 6 Driver (Semi) pursuant to the Road Transport and Distribution Award 2010.
[19] HPS has a Workplace bullying policy which was provided to the Commission as part of Mr Mofflin’s witness statement.
[20] On 7 December 2015, Mr Gillies forwarded to Mr D Graziano correspondence in which he states:
“I am writing to register my concern about the behaviour of Ivor Mofflin which I believe are potential breaches to HPS Workplace bullying and harassment policy. I feel that I have been subjected to a sustained campaign of bullying and intimidation by Ivor Mofflin over the course of my employment at HPS.” (my emphasis).
[21] Mr Gillies lists a summary of incidents. I intend to source the various incidents from both the correspondence to Mr Graziano and a number of other documents.
[22] In his written witness statement, Mr Gillies states:
“On 9/9/14 I refused an instruction from Michael Shanks to do an afternoon dog run at 1.30 pm stating to him that it was too late for me.” 1
[23] On 10 September 2014, Mr Shanks issued a letter of warning which reads:
“I refer to our discussions this morning when we discussed your refusal to complete a dog run when requested yesterday.
You indicated that you preferred to do morning dog runs rather than in the afternoon and that you thought others were being given preference over you. It was explained that others were doing more than was required when completing these runs and because of this they were being given these runs in the morning. However, you were not missing out on income opportunities; rather you just had a preference for morning rather than afternoons.
Whilst we will consider our request for morning work, we also must look at what is achieved by our employees at various times. You are now aware that others are doing significantly more than you and that you need to look at your own commitment to the position you hold.
This letter is to serve warning that yesterday you refused to complete a lawful direction to complete a dog run by your Manager.
You had no specific reason for refusing the work other than the time didn’t suit you.
Please note that any further occurrence where you refuse to follow a lawful direction from Management may place your employment at risk.”
[24] Firstly, this incident appears to have nothing to do with Mr Mofflin but is referred to in Mr Gillies’ written witness statement. Further, it is dated. However, it is also informative of things to come.
[25] I now turn to another incident.
[26] Employees at HPS, who successfully complete their probation period, are provided with a uniform order form and copy of the uniform policy to be completed and signed prior to the Employer placing an order for the various items of uniform.
[27] Mr Gillies was provided with an order form and Uniform Policy on 26 June 2014 after completing his probationary period. Mr Mofflin’s uncontested evidence is that, “for months I continually requested him [Mr Gillies] to provide me with a signed uniform policy. He refused to follow this reasonable direction without any acceptable explanation”. 2
[28] Mr Gillies’ evidence is:
“I was presented with an agreement to supply/wear uniform form to sign. I refused to sign it on the basis of three conditions that I repeatedly asked to be amended [three conditions set out].
After months of disagreement, I was put on restricted duties until I signed the form…[restricted duties set out]…
My role on restricted duties changed repeatedly through the day of 26/11/14 to the point when told do (sic) go and fuel the bulk tank I queried, saying I thought I wasn’t allowed to leave the yard. I was told to fill the tank or go home so I when (sic) after a day of harassment and constant changing of the definitions of my job.” 3 (my emphasis)
[29] On 28 November 2014, Mr Gillies was issued with correspondence setting out the Employer’s disappointment with his work performance which had caused him to come into conflict with his managers, including Mr Mofflin. 4 The correspondence referred to the incident of refusing to do a “dog run”, refusing to fill the bulk tank at the local Caltex petrol station (described above in paragraph [27]) and the ongoing dispute regarding the Uniform Policy”.5
[30] In bolding, it states, in the correspondence:
“Please note that this behaviour is unacceptable. Any further occurrence of not complying with a lawful direction from one of your Managers will see you place your employment at risk.”
[31] The correspondence concludes that, “given that you will not change your stance on wearing the uniform, we will need to reallocate your duties…as well as duties at work”.
[32] While this initial letter referred to the Employer re-allocation of Mr Gillies’ duties and his start and finishing time, this was later amended following intervention by the Transport Workers’ Union (TWU). 6
[33] I have no reason to disbelieve the veracity of that part of the correspondence where Mr Gillies was asked to consider his “attitude at work which we [Employer] deemed to be confrontational and stressful on all parties”. 7
[34] Mr Gillies’ evidence is that “my union representative [TWU] had a meeting with Ivor [Mr Mofflin] then suggested to me that as a show of goodwill and to move forward I should sign the beanie clause amended. I signed the amended form straight away”. 8
[35] The depth of the workplace agitation is best summed up when the Employer was prepared to, and did, amend the Uniform Policy on 1 December 2014 with a hand written notation requiring Mr Gillies not to wear “beanies with competitor logo” 9 and that Mr Gillies interpreted the words, “items provided by HPS are to be returned to HPS on cease of employment”, as employees being asked to return the uniform in “as new condition”. In my view, this is an example of Mr Gillies pleasing himself and being unnecessarily confrontationist.
[36] It had taken the Employer four (4) months to get Mr Gillies to accept a Uniform Policy for which no other employees objected to.
[37] It should be recalled that while this incident had taken four (4) months to resolve, its culmination occurred within two (2) months of Mr Shanks’ warning to Mr Gillies that any further occurrences of refusing to follow a lawful direction from management, would put his employment at risk.
[38] Notwithstanding the previous warnings, the next incident as described by Mr Gillies, in his evidence, is as follows:
“In early 2015 I refused to do a fumigation run at 12.30 pm after a midnight start. There are people who start up to 6 hrs after me who normally do this job”. 10
[39] I note that on a number of occasions in the period between 24 June 2015 and 21 June 2016, Mr Gillies worked in excess of 12.5 hours in a working day.
[40] In my view, this evidence is representative of Mr Gillies’ view that a direction by his Employer do so something, was voluntary and at this discretion.
[41] It would appear, almost remarkably, that Mr Gillies does not refer to any further incidents in 2015 until 3 December 2015.
[42] Mr Gillies’ evidence is as follows:
“On 3/12/2015 I turned up at the same time as the day before. This was the first and to date only time that I have made a mistake as to whether I had a “dog run” or not. I was threatened with dismissal by Ivor [Mr Mofflin] and told me how I was already on my final warning with a warning letter supposedly signed by me”. 11 (my emphasis)
[43] However, in his Statement of Facts, Mr Gillies states:
“3/12/2015: I turned up at the same time as the day before when no-one had advised me of a change of start time. I was threatened with dismissal by Mr Mofflin, and told how I was already on my final warning with a warning letter supposedly signed by me and that I was on my final chance. I was sent home for the remainder of Thursday and Friday and told to ring Mr Mofflin on Friday afternoon and tell him whether I want to keep my job.” 12 (my emphasis)
[44] Mr Mofflin’s evidence is that Mr Gillies’ start time had not been changed from the previous day. I believe Mr Mofflin’s evidence because time card entries indicate that 3:00 am start time had been unchanged for months before and continued for months after the incident. 13
[45] In my view, this is just one example where Mr Gillies mixed fact and fiction. Mr Gillies was a witness who gave evidence and made submissions after long pauses. On particular occasions, it was difficult to reach any conclusion other than he was “making it up” as he went along.
[46] Ultimately, I accept Mr Gillies’ evidence that the mistake on 3 December 2015 was his. I also accept this mistake led to a detrimental effect on the Employer’s operations. 14
[47] After this incident, Mr Gillies and Mr Mofflin had a discussion. I have no reason to disbelieve Mr Mofflin’s evidence that he put to Mr Gillies that he was “letting the team down” and Mr Gillies responded, “well you should know by now that I’m not a team player”. 15
[48] Due to this incident, Mr Gillies was stood down on full pay and that Mr Mofflin asked him whether he wanted to continue working at HPS because of what had happened that morning, previous warnings and being requested to adjust his attitude. 16 Mr Gillies characterizes the discussions as the Employer putting to him whether he wished to resign.17
[49] I am uncertain of whether there was a discussion on Friday 4 December 2015. However, Mr Gillies returned to work on Monday 7 December 2015 and provided correspondence to Mr Graziano claiming he was being bullied by Mr Mofflin.
[50] Mr Gillies describes to Mr Graziano what happened with respect to the most recent incident:
“The 2nd December 2015, Stuart told me to start at 3:00am which I did. The next day I also started at 3:00am, as the Road Transport and Distribution award clearly state that a regular starting time is to be fixed by the employer. I was sent home at 7:45am that day, and was told to not come to work the next day as a punishment for starting at the same time as the previous day instead of midnight. Ivor told me to call on Friday afternoon and let him know whether I want to keep my job or hand in my resignation. He added that I should consider myself lucky to still be employed since I am on my final written warning that I supposedly have signed.
To date, there has never been an issue with my performance at work or my willingness to perform my duties. Conflict has only arisen when I have been given punishments that contradict basic employee rights.”
[51] Mr Gillies gave evidence that his start time was changed to 3:00 am. However, he was informed that his start time was 3:00 am. 18 The documentary evidence reveals that his start time had not been changed.
[52] Rather than accept he slept in, and deal with the consequences, Mr Gillies attempted to blame the Employer for the reason why he slept in, which was because “night shift workers are not supposed to have a change of start time. It’s in the award and it’s to do with sleep patterns”. 19
[53] Mr Gillies’ proposition is that he should not have received the text message he received, “when it’s a situation that I believe was largely created by my employer in not recognizing provisions in the award”. 20
[54] Alternatively, Mr Gillies states, in evidence, “clearly, I slept in a long time” and would have expected a “talk about why I slept in”. 21 However, his view is, “I don’t think that a text saying give me a reason why you should keep your job, was the right way of saying hey, you’ve slept in”.22
[55] Blaming the Employer, referring to the Award, mentioning sleep patterns and preferring and expecting Mr Mofflin to deal with the matter differently, are all attempts to “mask” the undeniable fact that Mr Gillies slept in for four hours after he was due at work.
[56] In this incident, Mr Gillies denies that his supervisor had previously called and sent a text to him seeking his whereabouts. 23 I make no finding with respect to this aspect of the incident.
[57] In the circumstances, I have no reason to disbelieve Mr Mofflin when he states, “I am of the belief that Bevan [Mr Gillies] fully understands the impact of his actions of not turning up for work and not advising of his non-attendance for work have on then business operations for that day”. 24 It would seem unusual in view of the dislocation to operations that the Employer would wait over three (4) hours to make contact with Mr Gillies regarding his non-attendance. His explanation in the response text 35 minutes later to Mr Mofflin was, “hi, just woke up. Sorry…usual change of start time problem”. There was no change of start time problem – it had been the same for months before and afterwards.25
[58] In the course of the discussions between Mr Mofflin and Mr Gillies, it is not disputed that Mr Mofflin mentioned that Mr Gillies was on a final warning. Mr Gillies’ evidence is that, “when I asked to see this warning as I have no knowledge of it, Ivor [Mr Mofflin] replied that it is on file in Adelaide”. 26 None of this is disputed by Mr Mofflin.
[59] Over two (2) months later, Mr Gillies raised the issue of the final warning with Mr Mofflin. Mr Gillies asked to see his file as he had no knowledge of the warning. Mr Mofflin printed the letter which was dated 10 March 2015. Mr Gillies’ evidence is that, “I tell Ivor that the letter isn’t signed by me. I have never seen it before and it doesn’t say anything specific. Ivor told me that he doesn’t want to discuss it and to fuck off and do my run”. 27
[60] Mr Mofflin’s evidence is that, “things had been going along nicely and why did he want to stir the pot”. Notwithstanding Mr Mofflin’s view, he provided the warning letter within minutes of being asked for it by Mr Gillies. Mr Gillies wanted to discuss the matter immediately. For Mr Mofflin, it was an extremely busy time of the day. Mr Gillies continued to push back on four (4) occasions and wanted to discuss the matter 28 there and then with Mr Mofflin.
[61] Mr Mofflin’s evidence concludes, “unfortunately, given the workload I was under and Bevan’s continued goading of me to discuss the letter I said to him, ‘I am not discussing this with you now, get in your truck, fuck off and complete your run’. I believe that my reaction to his goading was what Bevan set out to achieve”. 29
[62] In his application, Mr Gillies states that the alleged bullying is:
[63] When the total circumstances are looked at objectively this is a case of Mr Gillies:
[64] Secondly, the alleged “transgressions”, whether refusing to carry out lawful instructions or being late for work, have consequences for the Employer’s operations. The alleged transgressions were certainly not “unspecified” – they were set out and particularised by the Employer.
[65] Thirdly, employees certainly have rights but they also have obligations. I received from Mr Gillies his opinions about employee rights – opinions without any authoritative basis. With respect to obligations, I am sure he carried out his job, for the most part, competently. However, the instances in which he raises as bullying have, for the most part, been caused by his own actions. With few exceptions, the Employer responded appropriately and reasonably.
[66] To put it bluntly, I am sure Mr Gillies did not expect flowers from the Employer for the way he was conducting himself?
[67] From the evidence, the Employer is faced with a 24 hour operation, the vagaries of haulage operations, volume changes, urgency of freight deliveries, driver availability, government regulations and employee expectations.
[68] Not all employee expectations, including Mr Gillies, can be met.
[69] Having considered the evidence, I am satisfied that Mr Gillies was not “punished” by the Employer with respect to “dog runs”. Mr Gillies did not take issue with the Employer’s schedule of “dog runs” for the period 3 July 2014 to 3 August 2016. 30 Faced with compelling evidence about the “dog runs”, Mr Gillies resorted to the comparator argument both with respect to “dog runs” and his “mix up” with his start time. I was neither persuaded nor convinced by his argument.
[70] Mr Gillies’ application, when it proceeded to hearing, reminded me of “upper case allegations being undermined by lower case detail”.
[71] Mr Mofflin’s evidence was that:
“Bevan can be extremely argumentative when given tasks or runs he does not want to do which invariably resulted in tasks being changed or him finishing for the day creating a burden for his colleagues and additional stress to the supervisors.
In these situations, I would need to intervene and direct Bevan to perform tasks he had been directed to do.” 31
[72] In my view, Mr Mofflin’s conduct in proceedings, accorded with Mr Mofflin’s view of how he conducted himself in the workplace.
[73] Finally, I find no evidence to demonstrate, even if the actions of Mr Mofflin were unreasonable, that his actions created a risk to Mr Gillies’ health or safety.
[74] I now turn briefly to s.789FF (b)(ii) of the FW Act and the requirement that, for the Commission to make an order if there is a risk that the worker will continue to be bullied at work (in the event it is found that the worker has been bullied at work) by the alleged bully.
[75] Mr Mofflin gave evidence that since early June 2016, he no longer had any direct dealings with Mr Gillies and he did not anticipate that there would be any further issues between them. 32 Further, Mr Mofflin’s evidence was that on 2 August 2016, both he and Mr Gillies had a civil discussion on rostering and shifts.
[76] Mr Gillies’ evidence is that Mr Mofflin is no longer his direct supervisor 33. Directions to Mr Gillies come from his direct supervisor34 as do the “dog runs”.35
[77] When I put to Mr Gillies, in such circumstances, was there a risk that he would continue to be bullied at work (if he was bullied)? He replied “yes”. 36 Mr Gillies replied “yes” because there may be incidents in the future where Mr Mofflin “might be wrong”.37 I find this reason no basis for concluding that Mr Gillies’ health and safety at risk. As I said at paragraph [12], the possibility or risk must be rational and not an ideation.
[78] For the reasons set out above, I was satisfied at the conclusion of the hearing that Mr Mofflin did not behave unreasonably towards Mr Gillies or that Mr Mofflin’s behaviour created a risk of the Applicant’s health and safety in accordance with s.789FD of the FW Act. Mr Mofflin’s actions, with few exceptions regarding his manner, were reasonable management actions in dealing with Mr Gillies.
[79] Further, even if I had found Mr Mofflin’s actions unreasonable in either action or manner, which I did not, there is, in my view, no risk that he would continue to be bullied at work by Mr Mofflin.
[80] The application was dismissed on transcript. An order formally dismissing the application is issued jointly with these reasons for decision.
COMMISSIONER
Appearances:
B Gillies, on his own behalf.
I Mofflin, on his own behalf.
Hearing details:
2016:
Perth,
11 August.
1 Exhibit A2
2 Exhibit R3 (22)
3 Exhibit A2
4 Exhibit R1
5 Exhibit R3
6 Exhibit R3
7 Exhibit R3 (2)
8 Exhibit A2
9 Exhibit R3 (1)
10 Exhibit A2
11 Exhibit A2
12 Exhibit A1
13 Exhibit R3 (4)
14 Exhibit R3 (47)
15 Exhibit R3 (48-49)
16 Exhibit R3 (5)
17 Exhibit A2
18 Transcript PN28 and PN35
19 Transcript PN36
20 Transcript PN60
21 Transcript PN40
22 Transcript PN42
23 Exhibit R3 (55)
24 Exhibit R3 (55)
25 Exhibit R4
26 Exhibit A2
27 Exhibit A2
28 Exhibit R2
29 Exhibit R3 (63) and (64)
30 Exhibit R4 (2)
31 Exhibit R3 (38) and (39)
32 Exhibit R3 (80)
33 Transcript PN247
34 Transcript PN253
35 Transcript PN255
36 Transcript PN259
37 Transcript PN265
Printed by authority of the Commonwealth Government Printer
<Price code C, PR584248>