| [2016] FWC 7039 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Rizwan Nasir Sheikh
v
Civil Aviation Safety Authority; Peter Marsh; Owen Richards
(AB2016/123)
COMMISSIONER WILSON |
MELBOURNE, 8 NOVEMBER 2016 |
Application for an order to stop bullying; whether applicant bullied at work; unreasonable conduct; reasonable management action; whether created risk to health and safety.
[1] After a long career flying commercial passenger aircraft for Pakistan International Airlines, Rizwan Nasir Sheikh emigrated to Australia and commenced employment with the Civil Aviation Safety Authority (CASA) in January 2014. His employment with CASA is as a Flight Operations Inspector (FOI), and he works within a team of other inspectors, including other FOIs, Airworthiness Inspectors and Safety Systems Inspectors.
[2] The team within which Mr Nasir Sheikh works is based in Melbourne, and his complaint, through this application, is of bullying within the team from his Team Leader, Owen Richards, and a colleague, Peter Marsh. The bullying allegations cover numerous dates, behaviours and conduct, however in summary the claimed bullying relates to 3 types of behaviour and conduct;
[3] Since Mr Nasir Sheikh is employed by a Commonwealth Authority, as that term is defined in s.789FD(3) of the Fair Work Act 2009 (the FW Act), there is jurisdiction for the application to proceed.
[4] The Commission's assessment of allegations of bullying at work is an objective assessment of whether behaviour and conduct that occurred was unreasonable with an attendant likely risk to health and safety. Behaviour and conduct that, objectively considered, is reasonable management action is not bullying at work. Even having found objectively there was bullying at work, the Commission must then assess, also objectively, whether there is a risk of the conduct continuing, also with a further risk to health and safety. After that point, the Commission is vested with the discretion to make orders or not.
[5] In some contexts, and depending upon the evidence about the actual behaviours and conduct, the matters complained of by Mr Nasir Sheikh and summarised above may well be unreasonable. A competent employee, subjected to some unstated dislike by others may be required to largely perform less interesting or less stimulating tasks. An employee may find the faults of others or of the team blamed on themselves.
[6] In other contexts and circumstances, the behaviour and conduct may be reasonable. Newly employed employees in a regulatory environment can expect to have the scope of their work initially restricted as they develop expertise, irrespective of their background or prior professional experience. Poor performing employees may be expected to have their work scrutinised more than others, with the attendant requirement to rectify demonstrated problems.
[7] It is also the case that allegations of bullying at work levelled by an individual for behaviour or conduct by others, together with a request that orders be made, may sometimes not adequately or comprehensively capture the multi-dimensional nature of the behaviours and conduct within a particular workplace. Unreasonable conduct and behaviours – or simply dysfunctional conduct and behaviours – may flow from an applicant seeking bullying orders as much as those behaviours being directed by others toward the applicant employee.
[8] A characteristic shared with a workplace featured either by workplace bullying or dysfunction for some other reason is that neither state could possibly be regarded as an optimal workplace. Bullying at work, directed at an individual or group of individuals has social, health or productivity consequences for all concerned. A workplace in which an employee performs less than the full range of their expected tasks, perhaps for reason of poor, or suboptimal performance, cannot be regarded as a fully functioning team let alone a high performing one.
[9] And so it is with the team in which Mr Nasir Sheikh is employed.
[10] Thirty-one allegations of bullying have been advanced against Mr Marsh and Mr Richards. One of those was withdrawn, meaning that 15 allegations of bullying were levelled at each. Only one of the allegations was substantiated as having been an unreasonable behaviour (Marsh Allegation 5), albeit that I found that the conduct did not create a risk to health and safety.
[11] The evidence does not support a finding that he has been bullied at work, within the proper meaning of the FW Act.
[12] Even so, the interpersonal dysfunction of the team is palpable. The behaviours and conduct of a number of people, including Mr Nasir Sheikh, Mr Marsh and Mr Richards, have been less than desirable, while not unreasonable to the threshold required for a finding that there has been bullying at work.
[13] One does not need to be skilled in the technical requirements for the high standards of regulation of aircraft and the associated investigation of incidents to recognise that, without correction, the interpersonal dysfunction of the team will continue, may get worse and then may have the severest consequences, either for persons within the team or for the tasks they perform.
[14] While there is not justification in the evidence for findings of, or orders associated with bullying at work, there is ample justification for the Commission to recommend corrective action by all concerned.
[15] At the request of the parties, a confidentiality order was made in the course of the hearing in order to ensure that the details of CASA’s interactions with the duty-holders it regulates not be identified within this decision. Accordingly, certain names and other details of the air operators that are the subject of CASA’s regulatory interactions have been omitted from evidence quoted in this decision. For the purposes of clarity, this decision and everything within it is public.
[16] The FW Act’s provisions in relation to anti-bullying are contained within Part 6-4B—Workers bullied at work, with s.789FD setting out the circumstances of when a worker is bullied at work;
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.
[17] Section 789FF sets out the powers of the Commission to make orders in the event that it is satisfied there is bullying at work;
789FF FWC may make orders to stop bullying
(1) If:
(a) a worker has made an application under section 789FC; and
(b) the FWC is satisfied that:
(i) the worker has been bullied at work by an individual or a group of individuals; and
(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;
then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.
(2) In considering the terms of an order, the FWC must take into account:
(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body—those outcomes; and
(b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes—that procedure; and
(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes—those outcomes; and
(d) any matters that the FWC considers relevant.
[18] An applicant for an order from the Commission to stop bullying under s.789FC must not only be a worker but must be one who “reasonably believes that he or she has been bullied at work”, with that belief being actually and genuinely held, as well as it being reasonable in an objective sense. 1 The term “worker” has the same meaning as in the Work Health and Safety Act 2011 (Cth), but does not include a member of the Defence Force.2
[19] Conduct does not occur “at work” merely because it has a substantial connection to work. 3 The question of whether behaviour or conduct occurred “at work” does not necessarily equate to the performance of work and will require a consideration of the context, including custom and practice, and the nature of the worker’s contract.4
[20] Ascertainment of “unreasonable behaviour” in the context of Part 6-4B of the FW Act requires application of an objective test having regard to all the relevant circumstances applying at the time. 5 The Explanatory Memorandum which accompanied the Bill from which this legislation arises makes reference to the earlier majority report of the House of Representatives Standing Committee on Education and Employment, entitled “Workplace Bullying - We just want it to stop” and made the following points about behaviour and its assessment by the Commission;
“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.” 6
[21] The conduct to be considered is that of natural persons, given that there is no provision in Part 6–4B that suggests bullying at work is something which can be engaged in by a corporation; 7 however the individuals engaging in the unreasonable behaviour need not be workers, for example they may be customers.8
[22] Repeatedly behaving unreasonably implies the existence of persistent unreasonable behaviour but it 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. ‘Unreasonable behaviour’ should be considered to be behaviour that a reasonable person, having regard to the circumstances, may consider to be unreasonable. 9 Consideration of the question of whether an individual or group “repeatedly behaves unreasonably” will require a purposive approach and “unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”.10 Further, for conduct to be reasonable it does not have to be the best or the preferable course of action, rather the conduct will be objectively assessed as to whether what was done was done “reasonably”, not whether it could have been done more reasonably or differently.11
[23] It will be necessary for the Commission to determine whether the alleged behaviour actually occurred, and once the necessary findings of fact have been made, the Commission can then determine whether the behaviour was unreasonable. 12
[24] In relation to the risk to health and safety of unreasonable behaviour, there must be a causal link; however, the behaviour does not have to be the only cause of the risk, but a substantial cause of the risk viewed in a common sense and practical way. A risk will be the possibility of danger to health and safety, and not necessarily actual danger. 13 The reference within s.789FD(2) to the effect that the definition of “bullied at work” does not apply to reasonable management action carried out in a reasonable manner is not an exclusion but a reference for the avoidance of doubt. The reference to reasonable management action carried out in a reasonable manner serves to provide guidance in the interpretation and application of s.789FD(1)(a) in circumstances in which it is alleged that management action such as performance management, disciplinary action, allocation of work, restructuring of the workplace and employer directions constituted bullying.14
[25] The particulars of Mr Nasir Sheikh's allegations are very lengthy, canvassing almost the entire period of his employment by CASA. The way in which this matter has been developed before the Commission means there have been several sets of allegations at different times, with the limited categorisation set out within the different versions not being consistently employed across the different versions of material before the Commission, and each lacking a uniform or coherent chronology. Inevitably, this has made the Commission’s analysis of the allegations more difficult.
[26] The listing of allegations and categorisation I have used below is that set out in Mr Nasir Sheikh’s Outline of Submissions, dated 6 July 2016. 15 This listing is consistent with that set in the Applicant’s Closing Submissions, dated 31 August 2016, provided after the hearing, which took place on 3 and 4 August 2016. Because of the way that the allegations have been set out, some of the factual circumstances are dealt with in several parts of the analysis. This listing shows 15 allegations against Mr Marsh and 15 against Mr Richards. A 16th allegation against Mr Marsh was withdrawn in the course of the hearing.
[27] The following dates are relevant to an understanding of the various allegations made and responses;
[28] For the purposes of convenience, the following abbreviations are used throughout this decision;
[29] Mr Nasir Sheikh commenced flying in 1978 and has worked as a commercial pilot since 1980. He has extensive international aviation experience flying major passenger aircraft when employed by Pakistan International Airlines and has managerial experience with air operators in Australia and New Zealand. 16 He has been employed by CASA since January 2014 and is presently employed as a Flight Operations Inspector (FOI) in a particular regulatory team based in Melbourne. Since about March 2014 his Team Leader has been Owen Richards, who is one of the two people named in Mr Nasir Sheikh’s anti-bullying application. Working within the same team is another FOI, Peter Marsh, who is the second of the people named within Mr Nasir Sheikh’s anti-bullying application.
[30] The Applicant’s Outline of Submissions advances 15 allegations of bullying conduct in four categories against the first of the people named in his application, Mr Marsh.
[31] Mr Marsh has been employed by CASA since November 2011 as a Flying Operations Inspector. 17 His aviation career commenced in 1977 and he has significant passenger airline flying experience on a number of different aircraft, having flown as an airline captain both in Australia and internationally. He has more than 22,000 hours flying experience.18
A. Allegations of belittling and humiliating comments by Mr Marsh
Marsh Allegation 1. May 2014 – regulatory approval incident
[32] The first allegations made by Mr Nasir Sheikh about belittling and humiliating comments on the part of Mr Marsh relate to a program of activity in which both were engaged in early May 2014. The activity concerned the assessment of a regulatory approval request that had been assigned to the relevant Certificate Management Team (CMT) and to Mr Nasir Sheikh in particular. The allegation of unreasonable behaviour relates to a telephone call between Mr Nasir Sheikh and Mr Marsh in which the approval request was discussed. At the time, Mr Marsh was out of Australia, in Asia.
[33] There is a contest between Mr Nasir Sheikh and Mr Marsh about the precise date of the telephone conversation in which the comments are alleged to have been made as well as the length of the phone call. Whereas Mr Marsh puts the telephone call as being on 6 May 2014 and Mr Nasir Sheikh puts it on 8 May 2014, corroborative evidence in the form of an email from Mr Nasir Sheikh to himself in the form of a file note suggests that the conversation was more likely on the latter date. 19 The context to the allegation is set out within Mr Nasir Sheikh’s witness statement in the following terms;
“13. During the telephone discussion with Mr Marsh, when I spoke about how I was going to proceed with the approval, Mr Marsh kept telling me, "You don't understand anything, you cannot issue the approval". I explained to Mr Marsh that Team Leader Mr Richards had given me the task of assessing the approval. He got angry and made more comments like, "You do not know anything". I suggested we could discuss it once Mr Marsh got back. I told him I would make the necessary checks, and then get the Team Leader to have it peer reviewed before sign-off.
14. Mr Marsh did not accept this and began asking me various technical questions. During the conversation, Mr Marsh also said words to the effect of "I am telling you." “You don't understand!" and ''It's a cultural thing" and continued to insist that I couldn't do the task.
15. The telephone conversation lasted approximately 50 minutes. I was quite shocked by Mr Marsh's behaviour. I was particularly shocked by Mr Marsh's statement that it was a "cultural thing", given that I had only migrated to Australia in 2011.” 20
[34] Mr Marsh disputes that he said the things alleged by Mr Nasir Sheikh. 21 He also puts forward that at the time Mr Nasir Sheikh was not qualified on the particular aircraft type “however as I was then overseas attending to another regulatory task he was assigned the task by CTM Richards”.22 It is his recollection that he then had a conversation with Mr Nasir Sheikh to ascertain whether the latter had conducted a full assessment of the documentation provided by the operator; in his capacity as Mr Nasir Sheikh’s mentor he wanted to be sure that a proper assessment was being carried out and asked whether it had. In response to the assertion that he had told Mr Nasir Sheikh that he could not issue the approval, “[g]iven that the … approval had already been issued at this point it would have made no sense for me to have asserted that Mr Nasir Sheikh could not issue it”.23 Mr Marsh’s evidence is that he regarded Mr Nasir Sheikh at the time as still being under probation and not type-rated on the particular aircraft and, in any event, his decision had not been peer-reviewed by a “type specialist”.24
[35] Mr Marsh gives further evidence that having returned to Melbourne he informed Mr Nasir Sheikh “that as a regulator we need to assess applications based on the aircraft type and, as an example, I then asked him whether he considered the turning circle of the [aircraft]” when assessing the application. “He then became verbally aggressive and advised me that “we are equal here and I don’t like you asking me these questions”. I was shocked by this response and “backed off” in order to de-escalate the situation.” 25
[36] An email sent by Mr Nasir Sheikh to himself on 8 May 2014 in the form of a file note refers to him having disclosed his concerns to his team leader, who at that time was Mr Richards. 26 In his witness statement, Mr Richards records that around that time, May 2014, he had noted that Mr Nasir Sheikh was becoming frustrated with his level of supervision, manifesting itself “in resentment towards the particular inspector assigned to provide the supervision”,27 and that the primary resentment was towards Mr Marsh with whom he had greater day-to-day dealings, being his assigned mentor.28 Each raised their frustrations with Mr Richards but he considered they were manageable through dialogue and discussion.29 Further;
“In identifying the issues which were developing between Mr Nasir Sheikh and Mr Marsh throughout 2014 and 2015, I had a number of verbal conversations with both officers in attempts to engage, coach, mentor and work through the communication and interpersonal concerns. Through close to ten years' experience in the management of staff, I believed the best method to resolve problems of this nature, was to engage the relevant individuals in joint discussions with myself in an attempt to talk through and resolve the issues at hand. In order to provide a circuit breaker between the two, I also sought opportunities to involve other people aside from Mr Marsh in providing assistance and guidance to Mr Nasir Sheikh. However, when it came to work involving the [aircraft] Mr Marsh's input was necessary since he was and is the only person with the necessary technical knowledge to assist in such matters.” 30
[37] From the evidence given about this particular event I consider that while there may well have been a difference of opinion between the two concerned about what needed to be done, I am not satisfied that either have exhibited unreasonable conduct toward the other. I concur with the statement indicated in Mr Marsh’s witness statement to the effect that having been assigned as Mr Nasir Sheikh’s mentor it was reasonable for him have a discussion with Mr Nasir Sheikh about his concerns about the method by which the regulatory application had been assessed. 31 On the evidence before the Commission, the views Mr Marsh held were reasonably held by him. By corollary, since he held those concerns, it would have been unusual if he had not had the conversation with Mr Nasir Sheikh that took place.
[38] This allegation has not been substantiated as unreasonable behaviour or conduct at work towards the Applicant.
Marsh Allegation 2. 10 July 2014 – speaking in a demeaning tone to Mr Nasir Sheikh and repeatedly hitting him
[39] The second of the allegations regarding belittling or humiliating comments being made by Mr Marsh to Mr Nasir Sheikh concerns an event on 10 July 2014.
[40] The context recorded by Mr Marsh about the circumstances are that on the particular day the two were completing a CASA-led auditor training course which required them to undertake a practice audit as part of the course program. The Applicant alleges the conduct arose when he asked a question in the course of a briefing from an administration officer about the making of CASA travel arrangements. The allegation is that Mr Marsh reacted poorly to the question, and Mr Nasir Sheikh alleges that “Mr Marsh repeatedly hit me on my shoulder and rudely and loudly said to me, “You cannot ask that question! Do not ask that question” in a demeaning tone”. 32 Mr Nasir Sheikh considered the comment was unwarranted and that he felt embarrassed as a consequence.
[41] Mr Marsh concedes that he had responded to the question asked by Mr Nasir Sheikh along the lines of “[w]e really can’t ask that type of question at the admin staff level”, 33 but strongly denies the tone having been inappropriate or that he had hit Mr Nasir Sheikh in any way.
[42] Another person who was at the meeting, Mary Taranto, an administration officer, was interviewed in the course of a CASA investigation into Mr Nasir Sheikh’s allegations of misconduct, which was completed in February 2016 (the CASA Internal Investigation Report). Ms Taranto was quoted within that report as having said that she could not specifically recall the incident as it was over a year ago, but that she vaguely recalled “words to the effect of not being able to ask that question being stated but did not recall Mr Marsh hitting Mr Nasir Sheikh in any form”. 34 The same investigation report records another employee also present within the meeting, Marc Herreen, as reporting that he had not seen any conflict during the training exercise; that he did not see Mr Marsh hit Mr Nasir Sheikh; and that Mr Marsh has a big personality but was not an intimidating person.35 Neither Ms Taranto nor Mr Herreen were called to give evidence in these proceedings.
[43] At least within Mr Nasir Sheikh’s evidence this particular allegation lacks context, with him not directly putting forward what the offending question may have been or what may have led to Mr Marsh’s alleged response, whether verbal or physical. However, context is provided in the CASA Internal Investigation Report, with the investigator providing the following detail;
“ Mr Marsh reported that during the training exercise Mr Nasir Sheikh interrupted Ms Mary Taranto and asked "why don't we just book our own travel on the internet rather than using the company CWT?" He further reported that both he and Ms Taranto were confused by the question.
[44] This context is important inasmuch as the words spoken by Mr Marsh make sense within the context of Mr Nasir Sheikh’s question, being one that potentially invited a departure by employees from a mandated corporate travel service. To do so invites non-compliance with corporate policies, which may have its own consequences. A question to the effect of whether employees may ignore a travel policy and make their own travel bookings other than through a mandated travel provider may well be reasonably responded to by another person within the meeting along the lines of “you cannot ask that question”, meaning that it is both inappropriate to ask the question as well as being directed to a relatively junior employee without the authority to countenance a departure from the authorised standard.
[45] As a result I do not consider the words spoken by Mr Marsh, whether on his version or that of Mr Nasir Sheikh’s, were unreasonable conduct.
[46] Within the same meeting Mr Nasir Sheikh alleges that Mr Marsh hit him. The CASA Internal Investigation Report records that “when asked to demonstrate how Mr Marsh hit him, Mr Nasir Sheikh repeatedly slapped his own shoulder”. 37 Such is consistent with the action demonstrated by the Applicant in the course of his cross-examination when he demonstrated what I would regard as a flicking action.38 Mr Marsh denies that he ever hit Mr Nasir Sheikh, either on this occasion or some other time.39 In the absence of greater evidence on this matter, there is no substantiation that Mr Marsh hit Mr Nasir Sheikh on this, or any, occasion.
[47] In this regard I take into account the material before the internal investigation, as well as its findings, which had the benefit of a greater range of evidence on the subject than that brought before the Commission.
[48] This allegation has not been substantiated as unreasonable behaviour or conduct at work towards the Applicant.
Marsh Allegation 3. April 2015 – airline audit – whether a job was “pulled” from Mr Nasir Sheikh
[49] In late 2014 extending through into 2015, Mr Nasir Sheikh had been assigned an auditing role in respect of a particular air operator. In April 2015 Mr Marsh was the Acting Team Leader and he and Mr Nasir Sheikh were discussing, in the form of a peer review, Mr Nasir Sheikh’s approval of a particular part of the operator’s proposal.
[50] On Mr Nasir Sheikh’s evidence, Mr Marsh had said to him that he had learned that there had been a fault on the particular simulator used for pilot training and that he was told by Mr Marsh to wait until he had spoken to the airline Head of Flying Operations. Shortly afterwards he noticed that Mr Marsh had emailed the airline about the matter. On 2 April 2015, he became aware of the email because Mr Marsh had provided him with a copy of it. The email is in relatively innocuous terms, referring to a conversation Mr Marsh had with the addressee of the email and that he would like to arrange a meeting to discuss the application, and then indicating dates upon which Mr Nasir Sheikh and he would be available for the meeting. Mr Nasir Sheikh’s witness statement on the subject records that he asked Mr Marsh about the email and received a curt response;
“29. I asked Mr Marsh politely, "Did you email [Operator 1]? I thought I was following up".
30. Mr Marsh then said very loudly, in front of other team members, "Did you not understand? I pulled the job from you".
31. I felt that Mr Marsh's tone was confrontational and aggressive. I remained polite and then said, "There must have been a misunderstanding, because you only mentioned talking to [Operator 1] first. Is this the protocol to pull a job?"
32. Mr Marsh said loudly, ''Yes".
33. I said, "Thought you would send me an email first. In any case, here's the file. I'll send you an email to confirm handing over the task".” 40
[51] Mr Nasir Sheikh records a further incident on the same subject a few days later, on 7 April 2015, when Mr Marsh called a meeting on the subject when the following is said to have ensued;
“36. In the room I said to Mr Marsh, "I thought you pulled the job from me. Are we discussing the same case?"
37. Mr Marsh then said, in a loud and aggressive tone of voice, "Do not cross me or else". He got up from a sitting position and stood over me. I felt very threatened by his words and actions.” 41
[52] Mr Marsh puts forward that he was the Acting CTM at the time and agrees he “called the job in” 42, but disputes having said he would “pull the job”. His evidence is also that he did so after receiving queries in relation to Mr Nasir Sheikh's handling of the matter from the operator’s Head of Flying Operations and Mr Richards.43 The former had said they were confused about Mr Nasir Sheikh’s request for additional information and the latter had asked Mr Marsh before going on leave to look into the delay and find out what had held up the approval process. When he did so Mr Marsh noticed that the job had been with CASA since October 2014 and with Mr Nasir Sheikh since November 2014.44 Whether Mr Marsh “pulled the job” from Mr Nasir Sheikh or “called the job in”, such appears to have been reasonably open to him, in response to the matters he was dealing with as Acting Certificate Team Manager. There is nothing unreasonable in what he did or how he communicated it. From time to time team managers do change the responsibility for who conducts or completes work. For the avoidance of doubt, I find both that Mr Marsh did not behave unreasonably toward the Applicant while at work in respect of this allegation and that his actions were reasonable management actions carried out in a reasonable manner.
[53] Mr Marsh strongly denies that he had ever said to Mr Nasir Sheikh “do not cross me or else”. 45 There is insufficient evidence before the Commission on the subject for a finding to be made that such conduct occurred. The matter was not the subject of cross-examination of either Mr Nasir Sheikh or Mr Marsh.
[54] I therefore find that neither part of this allegation has been substantiated as unreasonable behaviour or conduct at work towards the Applicant.
Marsh Allegation 4. August 2015 – Asian port audit
[55] Mr Nasir Sheikh contends as a further example of belittling or humiliating conduct on the part of Mr Marsh that at a meeting at the end of August 2015 he was told by Mr Richards that Mr Marsh would replace him for a port audit of an operator’s destination in Asia and that around this time Mr Marsh had said he was the one to be sent because “you cannot send someone for a boy’s look”. Mr Nasir Sheikh felt that this was referring to him and the standard to which he thought he would have done the job. 46 Mr Marsh’s witness statement on the subject records that he denies “saying those words or any like words and it is not clear to me what the expression actually means”.47 The allegation about the use of the expression was not the subject of oral evidence by any witness.
[56] The CASA Internal Investigation Report records that the people in the meeting in question were Mr Nasir Sheikh, Mr Marsh, Mr Richards and another employee, Alex Gonzalez. Mr Richards’ witness statement does not deal with the question of this particular allegation, however the CASA Internal Investigation Report records him as saying to it “that he cannot recall Mr Marsh making that statement and if he did he would not tolerate it”. 48 The same report notes that Mr Gonzalez declined to participate in the investigation. Neither party in these proceedings sought to require the attendance of Mr Gonzalez as a witness.
[57] Given this situation, I find that the phrase alleged by Mr Nasir Sheikh to have been spoken by Mr Marsh is likely to not have been said and that it is unlikely that whatever was said at the time was unreasonable to say.
[58] I therefore find the allegation is not substantiated as unreasonable behaviour or conduct at work towards the Applicant.
Marsh Allegation 5. From May 2014 to October 2015 – references to Mr Nasir Sheikh’s understanding and whether he would be made a manager
[59] The somewhat general allegation is made that between May 2014 and October 2015 Mr Marsh made comments to Mr Nasir Sheikh’s colleagues to the effect that Mr Nasir Sheikh did not understand Australian regulations, did not understand Australian culture and would not be made a manager.
[60] The former allegation, of a lack of understanding of Australian regulations or culture, has not been particularised by Mr Nasir Sheikh. In the material before the Commission it first appears in the CASA Internal Bullying and Harassment Complaint against Mr Marsh, in which he alleges Mr Marsh to have said “[h]e does not understand Australian regulations” and “[h]e doesn’t understand our culture”. 49
[61] There is insufficient evidence in relation to the first part of the allegation to make a finding in favour of the Applicant.
[62] The latter part of the allegation, that Mr Marsh had said words about Mr Nasir Sheikh to the effect that “I know things you don’t, he will not be made a Manager”, 50 was responded to in his witness statement by him saying he did not recall having made such a statement.51 However, in the course of cross-examination Mr Marsh conceded that he had said the words.52 In this regard he offers the explanation of it being said in the course of a conversation with other staff speculating about who would likely obtain promotion into a team leader position, with him putting that it was not an attempt to undermine Mr Nasir Sheikh;
“We were at a morning coffee, out with a number of inspectors as we do at 10 o'clock every day. At the time of the restructure of the southern region office, there was a lot of discussion about who would get the positions of the new team leaders. There was my view and I voiced my view, along with everyone else at the time. My view was that Owen Richards, Will Nuttall, Dave Edwards and Jay Koster would be the most likely applicants to be successful. I do recall that Mr Nguyen - Mr Richard Nguyen - who was also at that morning coffee - I do have a recollection that he made some comment about the fact that, "they would probably need an air transport FOI," and the fact that Mr Sheikh had applied for the position. My response to that was, "I don't think he would be made a manager". Someone said to me - and I'm not sure whether it was Richard Nguyen or someone else said to me at the time, "why not?" I wasn't going to go into specifics about my interactions with Mr Sheikh and his knowledge, but I just said, "Look, I" - and I don't know the exact words, but I can concede I said words to the effect, "Look, I know things you don't," and I did not go into specifics. If I was going to undermine and ridicule Mr Sheikh, I would have gone down the road of outlining all the deficiencies that I discovered along - over the period of time, but I did not do that. In hindsight, I will concede that I got caught up in a conversation that probably shouldn't occur, but is a normal workplace conversation that does occur when these sorts of things happen.
I put it to you that the sentence, "I know things you don't. He will not be made a manager," is inherently demeaning if it's being said to various people's colleagues?---No, I disagree with that. Different people have different skillsets. It was my view that Mr Sheikh would not be successful in that position and it was equally my view who the successful applicants would be. This was a discussion that was occurring and with all sorts of different people proposing - or different inspectors proposing different persons who they thought would be successful. That was the context of what was really quite a brief discussion over morning coffee.” 53
[63] While the evidence does not record the date of this event, the context of what was said places it in the latter part of 2015, given that it involves the southern office restructure, which took place in the second half of 2015, with Mr Richards being placed in one of the jobs involved in the restructure in November 2015.
[64] The full text of the CASA Code of Conduct is not directly before me, however there is evidence that it includes the requirement that employees “[t]reat everyone with respect and courtesy and without harassment”. 54 While gossip of the nature set out above in the course of a coffee discussion about who will or will not be likely to be promoted is objectively a breach of the requirement to treat everyone with respect and courtesy and without harassment, it would be an unusual workplace in which such gossip did not take place. Whether or not it may be polite or acceptable, employees will speculate about who may be likely or unlikely to win jobs in the offering; and it may be observed that the most vocal in this respect are sometimes the least informed or the least likely to themselves be promoted. That observation is not to condone the potentially hurtful or destructive nature of uninformed speculation about promotional prospects or to consider that there would not be circumstances in which there is a hurtful comment with deliberate harmful intent. However, it serves to place in context that gossip of this type is hardly unknown and may not have deleterious effects beyond annoyance on the part of those named not to be in the running.
[65] In full context of the matters before the Commission as well as the evidence of Mr Marsh on the subject, which I accept, I consider this to have been an unreasonable behaviour on the part of Mr Marsh. It was disrespectful or discourteous of Mr Nasir Sheikh. While so, I consider it to be at the lower end of disrespect or discourtesy.
[66] Necessarily, human behaviour in the workplace is an interaction between two or more people. While workplace behaviour is often of a transactional or collaborative nature for positive effect, it is not always so. Apposite to this, and within the context of an unfair dismissal application in which an employee was dismissed for alleged workplace bullying, Commissioner Cloghan passed comment that;
“[73] While the Commission does not and should not endorse the view that “anything goes” at the workplace, it is also important not to confirm as bullying and gross misconduct behaviour, as in this case, which is not pursued with any vigour and relates to incidents which occurred some time ago. In my view, the Commission should guard against creating a workplace environment of excessive sensitivity to every misplaced word or conduct. The workplace comprises of persons of different ages, workplace experience and personalities - not divine angels. Employers are required to pursue inappropriate behaviour but need to be mindful that every employee who claims to have been hurt, embarrassed or humiliated does not automatically mean the offending employee is “guilty of bullying” and “gross misconduct”. 55
[67] Even so, I find the comment by Mr Marsh that Mr Nasir Sheikh would not be made a manager was unreasonable behaviour or conduct at work towards the Applicant.
[68] There is no specific evidence before me that this conduct created a risk to health and safety, and I do not find that it did. In that regard, I take account both of the lack of evidence on the safety risk as well as Mr Marsh’s evidence about his intentions about his conduct.
Marsh Allegation 6. December 2015 – interruption during team meeting
[69] The final allegation Mr Nasir Sheikh makes of belittling and humiliating comments by Mr Marsh relates to a discussion in a team meeting on 3 December 2015 when the Applicant asked a colleague, Shawn Ottway, a question about how a particular company was conducting its simulator assessments when this exchange ensued;
“Mr Marsh interrupted me and said rudely, "You cannot ask that – they can do as they like." I asked Mr Marsh politely if he could allow Mr Ottway to respond to my question. After the meeting, Mr Richards took me aside and said to me that I should not interrupt. He then sent me an email to this effect.” 56
[70] A similar allegation is also made against Mr Richards relating to the same circumstances, but with that allegation concerning the later conversation between he and Mr Nasir Sheikh to the effect that the latter should not interrupt others.
[71] The evidence before the Commission in respect of the allegation against Mr Marsh includes the statement referred to above in Mr Nasir Sheikh’s evidence, and Mr Marsh’s response, along with Mr Nasir Sheikh’s emailed file note, entitled “Peter's rude interruption and Owen blaming me” which records;
“We were all asking questions. When I asked a question to Shawn, about the unusual way [Operator 2] were conducting the simulator assessments. Peter rudely interrupted, saying you cannot ask that- they can do as they like. I requested Peter to allow Shawn to respond to my question, at which he got angry took off his glasses and started fuming.” 57
[72] Mr Nasir Sheikh did not elaborate upon the allegation in his oral evidence.
[73] Mr Ottway, who was in the meeting as well, records the following in his witness statement about the exchange about which Mr Nasir Sheikh complains (noting that the Applicant did not cross-examine Mr Ottway on this or any other matter);
“29. During the discussion about one of those AOC holders, [Operator 2], the Applicant asked whether the operator's simulator training program had been approved under a regulation [under] the Civil Aviation Safety Regulations 1998 (CASR).
30. FOI Marsh attempted to point out that the question was irrelevant or technically inapplicable, however the Applicant spoke over the top of FOI Marsh and stated that it was his right to ask questions and that FOI Marsh should stop interrupting. FOI Marsh made no further comment on the matter.
31. I recommenced my briefing and started to provide an answer to the Applicant's question when the Applicant spoke over the top of me and asked the same question as before. �
32. I stated to the Applicant that if he would stop interrupting me I would be able to answer his question. I then stated that an approval under [the part] was not required as the elements of the simulator training program are approved under [regulation] of the Civil Aviation Regulations 1988 as per other airline operators.” 58
[74] The allegation suffers from there being insufficient evidence before the Commission to allow a finding in favour of Mr Nasir Sheikh and so it is not substantiated as unreasonable behaviour or conduct at work towards the Applicant.
B. Allegations of Mr Marsh’s intimidating and confrontational manner
Marsh Allegation 7. May 2014 – regulatory approval incident – whether “shouting”
[75] Mr Nasir Sheikh advances an allegation that a telephone conversation between the two on or around 8 May 2014 involved shouting by Mr Marsh at Mr Nasir Sheikh and that accordingly the events were intimidatory and confrontational. As set out above, at Marsh Allegation 1, I have found that although there may have been a difference of opinion between the two, the interaction did not involve unreasonable conduct on the part of Mr Marsh.
[76] The Applicant’s Outline of Submissions on the subject of the conversation as well as his closing submissions refers to their having been “shouting” at Mr Nasir Sheikh in the conversation by Mr Marsh. 59 Mr Nasir Sheikh’s evidence in cross-examination was that the following occurred in the course of the disputed telephone conversation between the two;
“…Peter called me and I assumed that it had not been approved and he asked me all these questions in a very demeaning way and then shouting at me, as he was upset that it had been approved without him approving it or something. I have no idea, but it issued on the day and there's an email, because of that email was sent afterwards, on the same day, on the 8th. He still wanted more information if the approval had been given. I don't understand” 60
[77] Mr Nasir Sheikh reported that Mr Marsh had shouted at him. Mr Marsh refutes the allegation. 61 It is noticeable from Mr Nasir Sheikh’s evidence that there is not a characterisation of what “shouting” might amount to. That is, there is not a characterisation of whether it is said to be words stated firmly and repeatedly or whether it is words yelled at a much higher than normal speaking voice. No words spoken during the periods of Mr Marsh’s alleged “shouting” have been related to the Commission.
[78] The Macquarie Dictionary defines the word “shout” as meaning “to call or cry out loudly and vigorously” when used as a verb. 62 Whatever characterisation is meant by Mr Nasir Sheikh’s use of the term, it was not put to Mr Marsh in the course of his cross-examination.
[79] I therefore consider it likely that, in the context of the allegations made by Mr Nasir Sheikh and the conversation related by him that his use of the term refers to things being said to him firmly and with emphasis, not loudly and vigorously, let alone in an inappropriate manner. I consider, after taking account of Mr Nasir Sheikh’s evidence as a whole, it to be likely that Mr Marsh saying to him words that he did not want to hear or in a manner that indicated the discussion was closed would be seen by Mr Nasir Sheikh as him being shouted at.
[80] I find on the balance of probabilities that it was unlikely that Mr Marsh shouted at Mr Nasir Sheikh in the course of the conversation. Accordingly Mr Nasir Sheikh’s allegation in this respect is not substantiated as unreasonable behaviour or conduct at work towards the Applicant.
Marsh Allegation 8. April 2015 – Audit incident
[81] There are two parts to this allegation which concern events surrounding an audit of a particular operator.
[82] The first part of the allegation that Mr Marsh behaved in an intimidating or confrontational manner in conducting the audit refers to the allegation, discussed in greater detail above in Marsh Allegation 3, that on 7 April 2015 Mr Marsh had told Mr Nasir Sheikh in front of colleagues that he had “pulled the job” from him. I found in that earlier discussion, in the category of belittling and humiliating conduct, that what occurred was not unreasonable behaviour or conduct at work toward the Applicant and that his action was reasonable management action carried out in a reasonable manner.
[83] The connection of this allegation with intimidatory or confrontational behaviour on the part of Mr Marsh was not the subject of oral evidence before the Commission and so that allegation is also not substantiated.
[84] The second part of the allegations surrounding this matter refers to Mr Marsh allegedly having followed on from the statement on 7 April 2015 that he had “pulled the job” with a further statement to Mr Nasir Sheikh in which he said in a loud and aggressive tone of voice “do not cross me or else” and that he had got up from a sitting position and stood over Mr Nasir Sheikh. 63 Mr Marsh strongly denies that he had ever said to Mr Nasir Sheikh “do not cross me or else” or that he was confrontational or aggressive.64 There is insufficient evidence before the Commission on the subject for a finding to be made that such conduct occurred. The matter was not the subject of cross-examination of either Mr Nasir Sheikh or Mr Marsh. This part of the allegation is not substantiated.
[85] I therefore find the two parts of this allegation are not substantiated as unreasonable behaviour or conduct at work towards the Applicant.
Marsh Allegation 9. June 2015 – investigation report incident
[86] The allegation is made that Mr Marsh, in a team meeting held in June 2015, made loud and rude comments to Mr Nasir Sheikh including “[r]ead the bloody report”, and that when the meeting was over Mr Nasir Sheikh requested Mr Marsh and Mr Richards to join him where he asked Mr Marsh;
“‘Why do you keep undermining me at every opportunity?’ He got up and stormed out of the room saying, ‘I don't have to listen to you. This is the policy’.” 65
[87] The team meeting was considering an investigation report that had not yet been finalised which had been undertaken by Mr Marsh and another Flight Operations Inspector, Tony Aylett. The antecedents to Mr Nasir Sheikh’s contentions are within his Internal Bullying and Harassment Complaint, made to CASA in November 2015;
“I challenged Mr Marsh's finding in this investigation. I had already issued an observation on the lack of proper pilot incapacitation training to [Operator 3] in November 2014. This was ignored by Mr. Marsh. I suggested continuing a complete investigation, not limited to Mr. Marsh's findings, which he took personally. He said "Read the bloody report". It was after this meeting when I requested Mr. Marsh to stay back, and discuss his behaviour in the presence of the Team Leader that he rudely walked off.” 66
[88] Mr Nasir Sheikh’s oral evidence on the subject gives the further context that the team meeting was discussing an investigation report into an aircraft incident in which the captain was sick and was “not on his seat even when the aircraft landed and stopped at the gate. His statement said that he was sitting at the back and there’s statements that the cabin crew came in, he was vomiting, he was in foetal position, he was sick, and I felt this was very unsafe.” 67
[89] Evidently Mr Nasir Sheikh disagreed with the proposed investigation findings and sought to have them amended. In the course of the meeting he suggested that there may have been “reckless” behaviour, which is a particularly loaded aviation term, given that “reckless” behaviour is criminalised in aviation safety legislation. 68 Mr Nasir Sheikh’s evidence was that he used the term in relation to the conduct of the pilots concerned and not in relation to the inspectors who had prepared the report.69
[90] Despite this context, Mr Nasir Sheikh’s evidence does not address the question of how the statement forming the central allegation of “read the bloody report” came to have been said. That is, the precursors to the alleged words and what may have provoked the statement have not been sufficiently developed in Mr Nasir Sheikh’s evidence or in the evidence of any of the witnesses. Similarly there has been insufficient development in the evidence of the second part of the allegation that Mr Marsh had responded when Mr Nasir Sheikh tried to resolve the issue with “I don’t have to listen to you. This is the policy”.
[91] Mr Marsh’s response on the subject of the investigation and the allegations regarding the statements he is claimed to have made is extensive and includes his belief that Mr Nasir Sheikh had used the term “reckless” in respect of the conduct of the investigators;
“58. I assume Mr Nasir Sheikh is referring to a CTM meeting held on or about 9 June 2015. Prior to the team meeting CTM Richards requested the attendance of FOIs Tony Aylett, Derek Fox, Safety Systems Inspector (SSI) Bruce Reilly and me at a meeting to discuss a number of matters, including the findings of an investigation conducted by Mr Aylett and myself into a crew incapacitation event involving [Operator 3]. … At the meeting, both Mr Aylett and I delivered our findings and recommendation that no further action be taken against the operator due to a lack of evidence to support the alleged breaches of the regulations.
59. When the investigation findings were discussed during the meeting, Mr Nasir Sheikh became increasingly outspoken to the point where he said openly that "you [i.e. the investigators] are reckless". He repeated this claim on a number of occasions and I observed that the other attendees were becoming increasingly concerned by the Applicant's claims and his conduct. Mr Nasir Sheikh also said openly that our investigation had not been conducted correctly. At the time I found Mr Nasir Sheikh's comments all the more curious as he had not been involved in any part of the investigation or interviews with the relevant operator's staff.
60. In response to the Mr Nasir Sheikh's assertions, I recall FOI Aylett said words to the effect of "what, would you have us find them guilty with no evidence? ". It was my impression that FOI Aylett was very upset by Mr Nasir Sheikh's comments particularly as an allegation of recklessness in the aviation context is a most serious allegation to make. I was similarly troubled by Mr Nasir Sheikh's claims but knowing that he was prone to making such outbursts I did not place as much weight upon his views in this instance.
61. FOI Fox, who attended the meeting requested by CTM Richards on the basis of his experience in investigations, also supported FOI Aylett and my recommendations by saying that he was a trained investigator and that based on his experience the investigation process was sound. Mr Nasir Sheikh angrily responded with words to the effect that "he was a trained investigator". FOI Fox informed me that after the meeting Mr Nasir Sheikh had gone to his desk and pushed his investigator qualifications in front of him and said something along the lines that "these are my qualifications". FOI Fox also told me that he took offence at Mr Nasir Sheikh's conduct.
62. At the conclusion of the meeting, Mr Nasir Sheikh asked that CTM Richards and I stay behind whereby he almost immediately made the claim to me that "you always undermine me". I interpreted his tone as aggressive and confrontational in that he was speaking loudly, he was visibly agitated, he was not prepared to listen to either me or CTM Richards and he was unable to control his emotions. ...
63. I recall being frustrated at Mr Nasir Sheikh's conduct and then saying to CTM Richards, "I don't have to put up with this, it's your problem Owen". I then left the meeting room rather than risk the situation further escalating.” 70
[92] The CASA Internal Investigation Report included these references to the circumstances and conduct of the meeting;
“ Mr Richards reported that he called a meeting with Mr Fox, Mr Aylett, Mr Marsh and Mr Nasir Sheikh to discuss the findings of an investigation that Mr Marsh and Mr Aylett had undertaken.
[93] In his evidence, Mr Marsh stated it was his clear recollection that the meeting had been discussing the investigation report and that Mr Nasir Sheikh had said “that is reckless” and that this was not in relation to the pilots being investigated because “when someone says to you, "Well, that's reckless", then I assume he's talking about me and the investigation, not about a third party.” 72
[94] Further, it was his evidence that the investigation team had not recommended litigation against the duty holders because a breach could not be proven; and that that recommendation had been accepted by CASA’s Coordinating Enforcement Committee. 73 His recollection was that the team meeting in June 2015 had been for the purpose of reporting back to the team before the investigators went to the Coordinating Enforcement Committee with their recommendation.74 His evidence in response to Mr Nasir Sheikh’s contention that the aircraft should have immediately returned to its point of departure spoke to the question not of what a different pilot may have done, but rather to what was proven about the duty-holders through the investigation;
“That might be what I might have done. It might be what Tony might have done. It might be what Mr Sheikh might have done. However, it's not evidence of a breach. It may be that you might consider that it was poor decision making. However, there are many decisions to a problem and outcomes that can occur and different processes that can be followed. So when we went through the investigation and we asked specific questions of the first officer as, "Did you feel the captain was incapacitated", the first officer at every question, stated that he did not. He also stated that the captain at all time was performing his duties, except for when the first officer assisted him by lowering the flaps on the approach because the captain was suffering pain in his stomach area. The cabin manager verified that by saying that she felt that the captain was always in command. It wasn't until after the aircraft was shut down at the gate that the captain, after all the passengers deplaned, went into their front row seat and lay across the seats and was in so much pain that an ambulance was eventually called and took him off to hospital. As a result of our investigation we did send two letters – three letters, one to the first officer, one to the captain and one to the company, outlining the results of the investigation and the company then within their own internal processes, determined that there would be retraining required in various areas and that, and that crew were retrained.” 75
[95] Mr Marsh conceded that he may have misunderstood who was the subject of Mr Nasir Sheikh’s reference of a person or people being “reckless”; specifically that it could have been the operator or the pilots. 76
[96] Mr Aylett was not cross-examined in respect of any matters, and his witness statement records the following relating to the meeting held on 9 June 2015;
“21. The Applicant remained adamant that the investigation had not produced a satisfactory outcome. His views remained unchanged even after I pointed out to him that he did not have access to all the evidence and that all three team members involved (me, CTM Richards and FOI Marsh) had independently come to the same conclusion and agreed on the investigation outcomes.
22. I felt frustrated at the Applicant's continued disagreement with the investigation outcome, especially as he had not been directly involved in the investigation. However, I decided not to verbalise the frustration and made no further comment and took no further part in the discussion.” 77
[97] The other people in the team meeting were Mr Richards and Derek Fox.
[98] Mr Richards’ witness statement records Mr Nasir Sheikh having been emotive, loud and beginning to use provocative language in the meeting, including “accusing FOIs Aylett and Marsh of being ‘reckless’ in their conduct of the investigation although he could not identify any specific basis for this very serious assertion”. 78 The alternative proposition, that Mr Nasir Sheikh may have been referring to the pilots when he employed the term “reckless”, was not put to Mr Richards in cross-examination.79
[99] Mr Fox recalls that Mr Nasir Sheikh “accused FOIs Tony Aylett and Peter Marsh of being "reckless" in their investigative methodology” 80 but he rejected in his oral evidence the characterisation that the term could have been used in respect of the pilots involved.81 While Mr Marsh denies saying the words “read the bloody report” in the meeting,82 he does not think the term, if it were used, would tend to undermine a person;
“Do you think it tends to undermine, that particular statement?---No.
You don't think if you said to someone in a meeting, "Read the bloody report" in front of the team members, that would tend to undermine that person?---No.
Okay?---It would tell them to read the report.” 83
[100] The evidence leads to a finding that there was plainly, and at the very least, a spirited disagreement within the team meeting about what should be done to dispose of the investigation into the particular incident. Mr Nasir Sheikh obviously disagreed with the findings made by the investigators and their proposed recommendation to the coordinating enforcement committee. At its most benign, as would be sought by the Applicant, Mr Nasir Sheikh used the term “reckless” in relation to the behaviour of the pilots being investigated. However the consistency of evidence does not lead to that finding.
[101] Instead Mr Marsh’s evidence is directly that he heard it at the time as being used in relation to the investigators, with him being one of them. While Mr Marsh correctly conceded in cross-examination that, in hindsight, he may have misunderstood what Mr Nasir Sheikh intended by the word, that concession does not change what he thought he heard at the time. Mr Richards’ evidence is that it similarly was used in relation to the conduct of Mr Marsh and Mr Aylett; and Mr Fox’s evidence is that it was used in the same context. Of the people present at the meeting, only Mr Nasir Sheikh believed at the time that the word was used in a different context.
[102] I therefore find on the balance of probabilities that when Mr Nasir Sheikh used the term reckless he used it in relation to the findings of the investigation, and the investigators, one of whom was Mr Marsh. In that context, given the meaning of the term in aviation law, with which each person in the meeting would be familiar, the term likely had incendiary effect, whether deliberately so or not.
[103] The consistency of the evidence also leads to the view that there was frustration on the part of some or all of the participants in the meeting; however the evidence does not lead to a finding that Mr Marsh said to Mr Nasir Sheikh either “read the bloody report” or “I don’t have to listen to you. This is the policy” in response to Mr Nasir Sheikh’s endeavours to resolve the issue.
[104] This allegation has not been substantiated as unreasonable behaviour or conduct at work towards the Applicant.
Marsh Allegation 10. September 2015 – Quick Reference Handbook approval incident
[105] The allegation is made by Mr Nasir Sheikh that Mr Marsh shouted at him on 22 September 2015, and that around the same time had tried to intimidate him into approving Operator 3’s request to replace a paper-based Quick Reference Handbook with an electronic version.
[106] Quick Reference Handbooks are an essential part of cockpit safety and in September 2015 Mr Nasir Sheikh was dealing with a request by an operator to replace a paper-based quick Reference Handbook “with a copy of the handbook contained on the iPad”. 84 At the time Mr Marsh was out of Australia on business and Mr Richards assigned Mr Nasir Sheikh the task of assessing the request, who then looked over the safety case and sought further information and a meeting.
[107] Mr Marsh had seen the operator’s original proposal and at first had held the view that the proposed change would require CASA approval. Later, and after discussion with another inspector, Mr Aylett, he took the view that CASA approval would not be required. After Mr Nasir Sheikh raised his concerns with Mr Marsh about the need for approval, Mr Marsh consulted with another person, Mr Farquharson, who thought the safest course of action was to include it in the approval for the avoidance of doubt. 85
[108] The operator initially went along with Mr Nasir Sheihk’s request for a meeting, agreeing to one on 23 September 2015. However, on 15 September, the operator’s attitude changed, advising Mr Nasir Sheikh that its preference was now to cancel the meeting and escalate it to one involving more senior staff, including Mr Richards on CASA’s side. 86
[109] During the relevant period, Mr Richards was on leave, and Mr Marsh was acting Certificate Team Manager, at least for the period between 21 September and 1 October 2015. 87 Another person, David Smith, was the acting Team Leader between 15 September and 20 September 2015. Mr Nasir Sheikh puts forward about this that “no official memo was issued (as would normally be the case).”88 If this amounts to a challenge by Mr Nasir Sheikh either that he was unaware of Mr Richards’ absence or that Mr Smith and Mr Marsh were somehow not validly appointed to be the Acting Team Leaders for the period, I do not accept the proposition. There is ample evidence that all concerned understood and accepted that Mr Richards was absent and that Mr Smith and Mr Marsh were acting in his stead.
[110] Mr Nasir Sheikh’s evidence is that he provided Mr Marsh with copies of all the related communications and was requested by him on 14 September to outline his concerns regarding the operator’s requests, to which Mr Nasir Sheikh responded the following day that the meeting was simply “to discuss the request in detail. Nothing specific”. Mr Marsh requested further details, which led to this exchange by email;
“Hi Peter,
As I mentioned earlier, there are no specific questions.
There is a need to discuss their safety case, as part of my assessment.
We can discuss on your return.
Kind regards,
Riz” 89
“Good Morning Riz,
My concern is that if you dont have any specific issues with the application, then you are obliged to issue the approval.
In my view the safety case is quite clear and complete for the size and scope of this task. So unless you have a specific concern that indicates they do not comply with the legislation I recommend you go ahead and issue the approval.
In addition you need to be aware of the risk to CASA of not issuing the approval if you do not have valid grounds. The runway change checklist is a positive safety enhancment that is being delayed. If [Operator 3] were to have an incident that identified this as a root cause, CASA would be exposed.
Under current regulations [Operator 3] are not required to have a paper copy of the QRH or checklist. They have exceeded the redundancy requirements of [Civil Aviation Order] and have well developed and proven experience with EFB use.
If you do have a specific concern then please advise me and I will be happy to assist.
Regards
Peter” 90
[111] Mr Marsh’s evidence is that in the course of discussing another matter with the operator on 16 September 2015, Operator 3’s Head of Flying Operations raised concerns with him that it did not consider it to be acceptable for CASA to call meetings of the kind proposed by Mr Nasir Sheikh “with no defined scope, agenda or questions/issues identified to indicate a deficiency in the application”. 91
[112] On 21 September 2015, Mr Marsh emailed Mr Nasir Sheikh to say that he had received an enquiry from the operator on the progress of the requested approval, and sought advice from him about the status of the approval and any outstanding issues. 92 Mr Nasir Sheikh responded by email with the following;
“Hi Peter,
Refer previous emails on the subject.
I have reservations on their safety case. [Operator 3] requested we postpone the meeting to discuss the said task, this will now be planned on Owen's return. The ball is in [Operator 3’s] court, my assessment is not complete.
Kind regards,
Riz” 93
[113] The evidence does not resolve the possible inconsistency between the operator saying to Mr Nasir Sheikh on 15 September 2015 that it would cancel the meeting with him and await the return from leave of Mr Richards, and its later request of Mr Marsh for advice about the status of the approval.
[114] Mr Nasir Sheikh then alleges the following exchange between the two, saying that following the exchange he was quite shaken and felt that Mr Marsh had tried to intimidate him into approving something; 94
“63. Shortly after this, Mr Marsh approached me in the open plan office area. Ms Debbie Winter, and possibly Mr Michael Rossiter, Mr Alex Gonzales and Mr Bruce Reilly were present.
64. Mr Marsh shouted at me, "What are your concerns, why don't you approve it?! Tell me now". He was standing over me while I sat at my desk. I repeated my general considerations as part of due diligence, but he got angrier saying "I want specific concerns".
65. Mr Marsh then shouted at me words to the effect of:
a. "They don't want to talk to you!"
b. "There is going to be no meeting!"
c. "I told you it is OK to approve!"
d. "We all agree!"
e. "Everybody thinks so!"
66. I kept my voice down and said to him, "Who do you mean by 'we' and ' everybody'? Are you referring to [Operator 3]?"
67. He got even more upset and said angrily, "Are you accusing me?"
68. I said, "My assessment is not complete. You can take over the job as the Team Leader and approve it if you wish".
69. This seemed to offend him too. He got even angrier and said, "You have a shotgun approach".
70. I asked him, "Can you be specific, so I can understand better what you mean by that, and learn?'' I took out a notebook to take notes.
71. At this he sort of backed down slightly, though still looking threateningly at me. He said, "Show me what you mean". He opened the safety case attachment on his computer. I went over to his desk and tried to explain. But he was adamant that he was right and it was "All good".
72. To end this tirade of verbal abuse, I suggested that he should send me an email and I will try and respond by the end of the day. He said, "You can submit it by tomorrow".” 95
[115] Mr Nasir Sheikh argues that Mr Marsh’s questions about the matter, which had covered a period of several days by that time, had become harassment, giving this evidence in cross-examination, with particular reference to the meeting that had, by 22 September 2015, been cancelled;
“On that issue, on that meeting, I want to put to you that what occurred, that Mr Marsh approached you and entirely reasonably said, "Look, you need to tell me what your concerns are about this application, because I've had a manager - a senior manager at [Operator 3] phone me up and saying 'You're holding meetings without agendas and why should we be put to the cost and expense of having such a meeting?'". Now, do you accept that that is the circumstance by which Mr Marsh approached you for information? --- No.
What do you say? --- Mr Marsh had been pursuing it, because it already will be accepted. We got the application, I believe, on 7 September. After that, Mr Marsh had been sending me emails when he was not part of the assessment team; he's not part of the - he is not an acting team leader in [Asia] and he had been sort of harassing me all along. I had been sending him emails which are all on record. Even on that morning, I sent him an email saying, "We have not talked about it. They have just presented something with lots of questions. Once we have a meeting and we have answered those questions, I will have specifics and I will give them to you." But he said, "No. No, you give it to me now. Give it to me now", in that sort of loud voice in front of everybody and he must have said it six - eight times and I told him, "I can't give you something I don't have. We have not discussed it. The people are not available."
The issue was you didn't know what the concerns were about the safety case. That's a fair assessment, isn't it? You didn't know; you were able to provide a technical reason why you had a concern about the case? --- Basic safety case was not based on what it was originally - - -
You had a misconception that it was your role to ensure that the proposal increased safety levels, rather than simply did not contribute to a safety risk? --- The way CASA works and the way we do it is to make sure it meets the acceptable means of safety. It should be at least (indistinct). It should not be less. If it is more, that is good.” 96
[116] Mr Marsh’s witness statement on the subject notes that in the course of discussing another matter with the operator’s Head of Flying Operations (HFO), the person indicated a concern that they “did not consider that it was acceptable for CASA to call meetings of the kind proposed by Mr Nasir Sheikh with no defined scope, agenda or questions/issues identified to indicated efficiency in the application” 97 and that “the HFO further said that the meeting was cancelled because no specific deficiencies had been raised by CASA and it was an unnecessary cost burden to the operator to attend the meeting in those circumstances. In light of the concerns raised by the HFO, I undertook … that I would look into the matter when I returned to the office”.98
[117] Prior to the argument between the two, Mr Marsh had informed Michelle Massey, CASA’s Regional Manager Southern Region, about the operator’s concerns. Ms Massey gave evidence that;
“I recall that, prior to the altercation between Mr Nasir Sheikh and Mr Marsh I had a meeting with Mr Marsh where he had indicated to me that [Operator 3’s] management had raised concerns that a meeting had been requested by CASA to discuss the regulatory approval which had been the source of the disagreement. The approval in question was for a Flight Check System for the [aircraft]. Mr Marsh advised me that [Operator 3] were concerned that a meeting had been requested to discuss this particular approval in circumstances where no specific deficiencies in [Operator 3’s] application had been communicated to them. Mr Marsh indicated to me that [Operator 3] were concerned that a meeting with no structured agenda for discussion would not be a productive use of senior … management's time especially when they would have to incur the regulatory fees associated with attending such a meeting. During that meeting, I recall that I instructed Mr Marsh to make enquiries with Mr Nasir Sheikh as to the precise nature of his concerns so that these could be relayed to [Operator 3]. I cannot now recall the date on which this meeting occurred.” 99
[118] When she reviewed the status of the application, along with technical information and emails to and from the operator, Ms Massey “formed the opinion that the issues relating to the [Operator 3] application which Mr Nasir Sheikh had identified in his communications with Mr Marsh were not sufficiently clear and specific which could lead to [Operator 3] being confused as to the nature of CASA's concerns.” 100
[119] Mr Marsh’s evidence on this subject includes this defence about the scope of his interaction with Mr Nasir Sheikh;
“83. I was concerned about the [Operator 3] relationship…. The HFO is the most important point of contact for CASA in regard to the flying operations safety aspects of an operator's business. For this reason, I was concerned to ensure that CASA's relationship with the new HFO began in a positive way and that [they] would not have any cause to criticise CASA for its dealings with [Operator 3].
84. In light of those concerns, I consulted with the Southern Regional Manager, Michelle Massey, and advised her of my discussions with the HFO. She indicated that she had concerns about CASA's relationship with [Operator 3] and asked me to follow up [Operator 3’s] concerns and identify the specific problems, if any that Mr Nasir Sheikh had identified with the [Operator 3’s] proposal. I did this by again emailing the responsible officer, Mr Nasir Sheikh on the afternoon of 21 September 2015 asking him for an update on the progress of the approval and any outstanding issues. Mr Nasir Sheikh responded on the morning of 22 September to the effect that he had reservations concerning [Operator 3’s] safety case although he did not identify what those were. Mr Nasir Sheikh also indicated that [Operator 3] had postponed the proposed meeting pending the return of the CTM. ...
85. After receiving Mr Nasir Sheikh's email response, I turned to him in our work area (we sit adjacent to each other), and initiated a conversation with him in which I tried to elicit more specific details concerning his reservations about the safety case. I began the conversation by advising him that the HFO of [Operator 3] had contacted me with concerns about the lack of detail about the concerns with the safety case, and that the Regional Manager had asked me to establish the nature of the those concerns so that the assessment of the application could proceed. I do not now recall precisely what was said during this exchange, however, I do recall that Mr Nasir Sheikh's initial response was both aggressive and defensive. I recall that he deflected my attempts to obtain specific details by repeating words to the effect of:
(a) "I have no specific concerns"; and
(b) "The matter should wait until Mr Richards returns".
86. I attempted to deal with Mr Nasir Sheikh's refusal to supply the detail that I had sought from him by explaining that CASA had an obligation under Administrative Law to either approve or reject an application in a reasonable timeframe. Additionally, if there are any deficiencies in an application CASA is obliged to draw those deficiencies to the attention of the operator in order for the operator to be given an opportunity to address them. In the course of trying to explain this to him, I used the term "we cannot take a shot-gun approach". This term was used, in the context of explaining the need to provide an operator with specific feedback about any deficiencies or safety concerns regarding an application so they can be dealt with in a timely manner.
87. While I was attempting to explain this to him, Mr Nasir Sheikh became more agitated, and talked over the top of me loudly with an angry look on his face. He began to accuse me of pressuring him to approve the application. At some point, he got out of his chair and came over to my desk and stood over me repeating his allegations that I was attempting to pressure him into issuing the approval. I assured him on a number of occasions that I was doing no such thing by saying words to the effect of "I am not asking you to approve the application just either make a decision or provide me with the deficiencies so that I may assist you.". Ultimately, in an attempt to de-escalate the situation, especially in light of Mr Nasir Sheikh's presence at my work space, I disengaged from the conversation by turning away from Mr Nasir Sheikh and focussing on my computer screen. At that point, Mr Nasir Sheikh returned to his own work station and the exchange ended.” 101
[120] Mr Marsh denies that he shouted at Mr Nasir Sheikh at any point during the exchange, but notes there may have been points where he raised his voice “in order to accommodate the loud and aggressive manner” of Mr Nasir Sheikh’s response. 102 In the course of cross-examination, Mr Marsh conceded that toward the end of the altercation he had turned away from Mr Nasir Sheikh, rolled his chair back to his computer and muttered under his breath “for fuck sake it shouldn’t be this hard”, saying further that it was a statement of frustration and that he did not believe it was an angry and aggressive statement because it was not addressed in an angry manner to the Applicant.103 The CASA Internal Investigation Report records that a CASA employee, Debbie Winter, had reported to the investigation about this occasion;
“… that Mr Marsh turned away from Mr Nasir Sheikh and said "for fuck's sake, it shouldn't be this hard'. Ms Winter reported that she has noticed the same type of interaction in the past with Mr Marsh and Mr Nasir Sheikh. She further reported that it is her opinion that Mr Nasir Sheikh does not accept Mr Marsh's training.” 104
[121] Of the people referred to by Mr Nasir Sheikh as being near to the Applicant and Mr Marsh when the altercation took place, only Mr Reilly gave evidence in these proceedings, and then only through the form of a short witness statement without oral evidence. His witness statement contains the following reference to events on 22 September 2015;
“I was working at my desk with my back to FOI Marsh and the Applicant when I became aware that there was some type of disagreement between the two of them. This was not due to either of them shouting, but rather due to the general tone of the conversation and an increase in volume. I also became interested as I was at the time a member of their team. I recalled hearing the discussion refer to [Operator 3]- being one of the operators oversighted by CMT … - and a safety case for the use of a Quick Reference Handbook.” 105
[122] Mr Rossiter provided a very short statement to the investigation into the CASA Internal Bullying and Harassment Complaint, describing that while he heard raised voices he was too far away to hear any content. 106
[123] The exasperation Mr Marsh evidently held about Mr Nasir Sheikh’s behaviour over this matter is palpable, as well as likely well founded. Mr Marsh was the Acting Team Leader. The operator had queried with him why the approval could not be given and why a meeting was necessary. It had pointedly informed CASA that it regarded the Authority’s request for a meeting to be unnecessary as well as an unnecessary cost burden. Even on Mr Nasir Sheikh’s evidence;
[124] In proper context, as a co-worker dealing with the same client before 15 September and after that date as Acting Team Leader, the requests Mr Marsh made were reasonable, were made reasonably, and should have been acted on. Mr Nasir Sheikh failed to set out his concerns about the operator’s safety case until he sent an email to Mr Marsh on 24 September, which was after the argument he makes this allegation about.
[125] When Mr Marsh muttered that “it shouldn't be this hard”, it probably should not have been; his concerns and needs should have been reasonably apparent to Mr Nasir Sheikh and should have been acted upon. Mr Marsh became frustrated after he perceived Mr Nasir Sheikh to be wilfully unhelpful.
[126] The allegation of swearing against Mr Marsh is not included within Mr Nasir Sheikh’s witness statement or his outline of submissions, but it is included in his CASA Internal Bullying and Harassment Complaint, and Mr Marsh was cross-examined on whether he swore. It is unclear from the Applicant’s contentions whether he puts forward that the use of the particular word is, in itself, unreasonable, or whether he argues the entire phrase was unreasonable. The expletive itself has a passing familiarity in the Australian idiom. Mere use of the word is not, of itself, either unreasonable or bullying. While it may have best not been used on this occasion, its inclusion in the phrase does not render the overall statement as being any more than one of frustration. In any event, within the context of the words spoken and the entire interaction, I do not find the statement or any part of it to have been unreasonable.
[127] That there was an argument between the two on 22 September 2015 is regrettable, and each of the protagonists would do well to commit to themselves not to repeat their respective sides of the conduct. It is also regrettable that the two chose to conduct themselves in front of other staff members. Mr Marsh must bear responsibility for the inappropriate nature of those actions, with them being compounded by him acting in a more senior position at the time.
[128] Despite these failings, I am unable to find the allegation has been substantiated as unreasonable behaviour or conduct at work towards the Applicant. For the avoidance of doubt, I find both that Mr Marsh did not behave unreasonably toward the Applicant while at work and that his actions were reasonable management actions carried out in a reasonable manner.
C. Allegations of harassing conduct by Mr Marsh
Marsh Allegation 11. September 2015 – Quick Reference Handbook approval incident
[129] The September 2015 Quick Reference Handbook incident referred to immediately above, in Marsh Allegation 10, is also the subject of an allegation that the events demonstrate harassing conduct on the part of Mr Marsh against Mr Nasir Sheikh.
[130] There is no evidence before the Commission regarding harassing conduct by Mr Marsh toward Mr Nasir Sheikh in the matters complained about. In making this finding, I rely upon my analysis above.
[131] This allegation has not been substantiated as unreasonable behaviour or conduct at work towards the Applicant.
D. Allegations about the imposition of unreasonable work requirements
Marsh Allegation 12. October 2015 – requirement to travel to Sydney and work from 2 PM to 9 PM on the same day
[132] The allegation is made in Mr Nasir Sheikh’s Outline of Submissions that on 16 October 2015 Mr Marsh imposed unreasonable work requirements on him “without authority by informing Mr Nasir Sheikh that he was to travel to Sydney and work from 2pm on the same day”. 114 Despite the way the allegation is phrased, this is not an allegation that Mr Nasir Sheikh was being sent to Sydney on that very day, 16 October, but rather the allegation relates to travel required for a forthcoming audit, which was to take place on 9 November 2015. The complaint, in context, is that Mr Nasir Sheikh was being asked to travel to Sydney in the morning, and to then undertake work after arriving in Sydney from 2 PM.
[133] The aspects which Mr Nasir Sheikh considered unreasonable are set out within his witness statement, essentially being a refusal on the part of Mr Marsh to listen to Mr Nasir Sheikh’s request for time to plan for the indicated travel;
“82. Mr Marsh said, "I have planned for you to go to Sydney and work from 2 to 9 pm for [an Operator 1] audit … Mr Richards and Mr Reilly were working in the same workspace.
83. I asked Mr Marsh to email me the scope of work, so I could coordinate with my counterpart in Sydney first, seeing I would have to plan my travel on the day from Melbourne to Sydney as well. I also noted that I would have to work later than 9 pm to watch the aircraft turnaround, finishing around 11 pm.
84. Mr Marsh got angry and said, ''I have to send it now" and words to that effect, referring to the proposed [Operator 1] audit schedule planned for 9 November 2015.
85. I politely said, "Peter, you have to listen". Mr Marsh was still angry and would not listen to me. He went back to his desk, muttering things.
86. After a few minutes, Mr Marsh came back and said, "I have changed your timings. You can have dinner from 5 to 8 pm and stay until 11 pm".
87. I tried again saying, "Peter, you need to listen. I will have to confirm my travel and check the details with my counterpart in Sydney". He got even angrier.
88. As the matter was getting out of hand, I said, "OK, thanks", and ended the conversation. I later coordinated with [Operator 1] and travelled to Sydney for the audit.” 115
[134] Mr Marsh denies either that he interrupted Mr Nasir Sheikh by pushing papers in front of him or that he became angry and would not listen to him. 116
[135] In the course of cross-examination, Mr Nasir Sheikh set out in greater detail his concerns about the manner in which had been requested to make the decision by Mr Marsh, as well as the practical reasons for his concern;
“Firstly, was there a real problem here that you were upset that you had been allocated to do, as it were, night-time duties to conduct the audit. Is that was what your concern was? What was your concern?---Actually I wanted to do night time, because the aircraft lands there at 10 o'clock, and I wanted to see the turnaround. The initial program the Peter made, without consulting with me, was to come back at 9 o'clock and I said "That defeats the purpose. I need to be there at 10", and I finished on that day, I think, around midnight. And that's what my intent was, was to actually do the audit properly.
Okay, and Mr Marsh had asked you, prior to this, on a few occasions to actually tell him what your agenda or what your itinerary was going to be on the audit, hadn't he? He had asked you for information as to what you are going to be doing?---No.
Okay. He also said to you, I put to you, that he asked you for that information as he did with all of the other team members, because he had had a request from the CEO of the operator to be advised of that information, and the importance of being advised of the information was so that he could have the appropriate specialists from his organisation available to meet with the CASA auditors?---Agreed.
You agree with that. So when Mr Marsh asked on repeated occasions, can you please tell me what your travel arrangements are and your itinerary, you failed to answer him?---He never asked me. He told me and said, "I can coordinate and get back to you", and that email was like a month or three weeks earlier when the CEO asked him. It was nothing urgent. It could have been done the next day or the next week.
And you then send an email and said, "I will make my own arrangements", essentially, "with the operator"?---No. That is not what I said, I had to coordinate with the station manager in Sydney. All the others went to Auckland, so I had to see what time the flight comes in and I had to see if that gentleman would be available on that day and I wanted to see if I would be able to see the arrival and departure, because sometimes flights get delayed as they did on that day. So the objective was to understand what I am supposed to do and to do it properly and coordinated before I commit to something. And he just push it in front of me and said, "I made this." And is not the first time. These 13 things that I have mentioned, they are 1300. I have been humiliated on a daily basis, behind my back, in personal meetings, in social gatherings, in private CMT meetings and the manager has been sitting there and observing that and I'm sorry to say he has denied all of these things which he was witness to. And this one, again, Owen was sitting right there and this happened after the September incident where I had already told Owen that I am going to file a complaint and then Peter comes on 16 October and just shove that while I'm doing something and says, "I've done this." I said, "Let me see this. Let me coordinate and I will let you know." "No, the CEO has asked me."
Mr Sheikh, I put to you that what he did was entirely unexceptional and reasonable, and he was simply trying to coordinate the audit arrangements. That's all he was doing?---I was happy to cooperate.
So why couldn't you answer his simple question about what were your travel plans and your proposals to conduct the audit? Why couldn't you answer that?---This was the first time I was presented something to do like this and I had no idea even if the flight comes and at what time. And that is what I said and I advised him that I cannot - - -
Mr Sheikh, this occurred on the backdrop that he had already asked you and you had not provided the information. So he, taking the initiative just went ahead and tried to coordinate a workable audit plan. I put that to you?---I disagree. Never coordinated that.
And there is absolutely nothing wrong with a lead auditor wanting to actually get plans in place to ensure that the audit goes smoothly; the operator is fully aware what is expected of the operator and that the members of the audit team know what they are doing and they are not either doubling up or otherwise crossing crossed areas which are already covered. Do you accept that?---I agree.” 117
[136] This allegation arises after Mr Marsh had endeavoured to obtain a commitment from Mr Nasir Sheikh about his travel arrangements in order that he may, in turn, provide that information to others, including the operator that was the subject of the audit. There was nothing untoward in Mr Marsh seeking that information. Equally, there was nothing untoward in Mr Nasir Sheikh indicating to Mr Marsh that he needed to obtain some further information before responding.
[137] However, at best, Mr Nasir Sheikh was being unhelpful with his communications to Mr Marsh; he likely did not feel he had to work to the instructions given by Mr Marsh and would prefer to avoid having to commit to anything within the timeframes Mr Marsh was working to. Those timeframes themselves were hardly unreasonable, and neither was the effect of the working pattern Mr Marsh sought to arrange – travel to Sydney in the morning and work from 2 PM.
[138] The Commission is unconvinced that, even now, Mr Nasir Sheikh has put forward an acceptable explanation as to why Mr Marsh’s request for information was unreasonable or why he could not conform with the request.
[139] Mr Marsh was the lead auditor and liaised with the operator about the audit schedule and scope; he spoke with each of the other CASA inspectors involved in the audit; and his “discussions with each inspector, other than Mr Nasir Sheikh, were uneventful and I received details from each of their planned activities during the audit”. 118 Those discussions enabled him to prepare an audit plan for submission to the operator, which included work being conducted across three cities, including one internationally; however, when he asked Mr Nasir Sheikh about his planned activities;
“... he said that he would coordinate with the operator directly. I then explained to him that I needed details from him to provide the Chief Executive Officer (CEO) of [Operator 1] who had requested the information to ensure that relevant personnel were available to assist during the audit. ...
108. In response, Mr Nasir Sheikh said words to the effect that I was not listening to him and reiterated that he would contact the operator directly. At this point, I realised that the conversation was not productive and returned to my desk to continue developing the draft audit plan.
109. After developing the audit plan, I then again went to each of the inspectors to confirm its contents. When I approached Mr Nasir Sheikh with the draft audit plan he again said that he would be contacting the operator directly. In response, I again advised him that I needed to provide the operator with a high level audit plan for planning purposes. Mr Nasir Sheikh then took the draft audit plan and quickly reviewed the contents before saying that he needed dinner due to the late operation of the departure flight. I accepted what Mr Nasir Sheikh had told me and returned to my desk and amended the audit plan to include the meal break. I then presented the amended audit plan to Mr Nasir Sheikh.” 119
[140] I consider this allegation unfounded. Mr Nasir Sheikh was the architect of the ill-feeling that arose from the exchange and did nothing to avoid it. Mr Marsh’s conduct was reasonable, and Mr Nasir Sheikh’s avoidance of the matters he was requested to attend to, unreasonable.
[141] This allegation has not been substantiated as unreasonable behaviour or conduct at work towards the Applicant.
E. Allegations of exclusionary behaviour
Marsh Allegation 13. 17 June 2015 – exclusion from a meeting to discuss questions and answers developed by Mr Nasir Sheikh
[142] Mr Nasir Sheikh puts forward that on 17 June 2015 he saw Mr Marsh in a meeting room through a glass partition discussing matters that he had developed for an interview panel to review, and that he had not been invited to the meeting. 120 He sent himself an email about the matter in the form of a file note;
“Saw PM having a private meeting with TA & DF- he purposely did not invite me while I was sitting at my desk. This intentional exclusion was to discus
Pilot incapacitation: where I had logged in the Sky Sentinel and advised TL that the investigation was not complete and the letters should not be sent. PM had been rude & abusive at the meeting last week in front of the others. Using words like READ THE BLOODY REPORT. And when had asked him to stay back to discuss any issues in a mature manner he stomped off - in front of the TL.
Understand that is why I was not invited to this meeting” 121
[143] The file note appears to connect the meeting not only to a forthcoming interview panel, but also with the pilot incapacitation investigation (see Marsh Allegation 9).
[144] In relation to either possible limb of the allegation, that questions for an interview panel were under discussion, or that it was the pilot incapacitation investigation under discussion, it is unclear from the evidence the basis upon which Mr Nasir Sheikh formed the view about what was being discussed, or that such is why he was not invited to the meeting.
[145] Mr Marsh responds to this allegation in his witness statement in the following ways;
“64. … my recollection is that I did attend a meeting in one of the meeting rooms on or around that day which involved FOI Derek Fox, FOI Tony Aylett and myself to discuss the upcoming HFO (Head of Flight operations) interview of which I was the chair. Mr Aylett was originally part of the interview panel but due to a schedule change requested by the applicant was subsequently unavailable. The purpose of the meeting was to discuss the relationship between the HFO and the HOTC (Head of Training and Checking) specifically the apparent anomaly between [two Civil Aviation Orders]. I chose to speak with Mr Aylett and Mr Fox in relation to this matter due to their significant experience in this area.
65. I was planning to target some questions in this area and needed confirmation that my view was consistent with CASA's. As the discussion developed we also considered the effect of the new CASR [part] legislation and the relationship between the HFO and the HOO (Head of Operations).
66. I recall using the white board to illustrate the AOC versus CASR [Part] structures and where the respective responsibilities lay. I also recall Mr Fox discussing his list of questions he had developed for HFO interviews. Towards the end of the meeting Mr Sheikh walked in unannounced and sat down and stared at us but initially said nothing. We were quite surprised by this behavior.
67. At no time prior to Mr Nasir Sheikh's entry into the meeting did we discuss a list of questions that he had prepared for an alternate HFO interview of which he was the chair. I deny the allegation that we were discussing a list of questions that he had developed. I also have no recollection of the applicant saying "Am I missing something?" at any time or that those present tried to hide a list of questions he had prepared.
68. In addition it is quite normal for inspectors to discuss matters with other inspectors in meeting rooms due to the open plan office environment. I have also observed Mr Nasir Sheikh in meetings to which I was not invited. However, I do not automatically consider that Mr Nasir Sheikh is excluding me by engaging in such meetings.” 122
[146] Mr Nasir Sheikh’s application form particularises the allegation in this way, referring to exclusion from discussion of an interview for an airline’s Alternate Chief Pilot;
“On 17 June 2015, Mr. Marsh was holding a meeting discussing a list of questions and answers Mr Nasir Sheikh had developed for the team to review before an interview ([Operator 3] - Alternate Chief Pilot). Mr Nasir Sheikh was chairing the interview. Mr. Marsh was not part of the panel, yet was discussing it with inspectors not involved on this task. When Mr Nasir Sheikh saw them holding the sheet, he walked in and asked them “Am I missing anything?””
[147] Mr Marsh’s evidence refers to the meeting being to discuss an interview panel for the same airline’s Head of Flight Operations.
[148] Mr Aylett, who was part of the meeting, provided the following evidence in his written witness statement, noting that he was not cross-examined in respect of any matters;
“11. On 17 June 2015 I recall having an unscheduled and informal discussion with FOIs Derek Fox and Peter Marsh regarding the regulatory responsibilities of a Head of Flying Operations versus the regulatory responsibilities of a Chief Pilot. I also recall that we discussed the differences between [two types of civil aviation certification].
12. It was at that time - and it still is - common practice for members of Certificate Management Team (CMT) One (as well as other staff in the office) to hold discussions in vacant offices, meeting rooms or designated break-out rooms to minimise disruptions to other staff in the open plan office.
13. On this particular day, FOIs Fox, Marsh and I utilised a vacant office and made use of the white-board facilities in the room to illustrate the breakdown of the … organisational structures [for the two types of civil aviation certification].
14. Towards the end of our discussions the Applicant opened the door, entered the room and sat down. He had in his hand a list of proposed interview questions which related to an upcoming Alternate Chief Pilot interview for which the Applicant had been designated to manage the application process and conduct the interview.
15. Although the Applicant had not been part of our earlier discussion and had not made prior arrangements for a meeting to discuss the proposed questions, I do recall that the four of us then proceeded to discuss the proposed questions and provided our input.
16. I recall that the tone of this part of the discussion was cordial and business-like and at the conclusion of the discussion all four participants left the room simultaneously.” 123
[149] Mr Fox, whose evidence was also not the subject of cross-examination, deals with the same matter in his witness statement in the following manner;
“20. As indicated in my statement of 29 January 2016, on 17 June 2015, I was having a private meeting (which I had requested) with FOI Marsh. I had requested the meeting to seek FOI Marsh's assistance in preparing questions for an upcoming interview which I was tasked with conducting in order to assess the proposed Chief Pilot of [Operator 3]. The meeting had nothing to do with any questions that the Applicant had developed or with any task that he was involved in.
21. For that reason, I considered that the Applicant's un-invited entrance into this meeting was not only unusual, but inappropriate. I do not recall what occurred during the balance of this meeting but I do recall the strong impression that the applicant's uninvited intrusion into the meeting was both highly unusual and inappropriate.” 124
[150] There is no evidence before me, other than Mr Nasir Sheikh’s supposition about the purpose of the meeting, that would lead me to reject the CASA witnesses’ evidence on the subject matter of the meeting.. Mr Nasir Sheikh has not discharged his onus of proof in relation to this allegation.
[151] This allegation has not been substantiated as unreasonable behaviour or conduct at work towards the Applicant.
Marsh Allegation 14. September 2015 – alleged refusal to respond to an email about a task assignment
[152] Mr Nasir Sheikh alleges that having sent an email to Mr Marsh on 15 September 2015, asking him to share details of a task that Mr Richards asked the two to do together, he had not received a response. 125 He followed the initial email with a further one to Mr Richards on 25 September 2015 and did not receive a response to that email either. The allegation is made that this was exclusionary behaviour on the part of Mr Marsh and part of the overall bullying conduct, leaving him humiliated and ignored. The two emails are in the following terms;126
“Hi Peter,
How you travelling?
I believe [Person 1’s] test is on 24th, perhaps you can share the details. Owen wanted us to do it together.
The Cockpit Check System meeting is to discuss their request in detail. Nothing specific.
Kind regards”
“Hi Owen,
I had reminded Peter to include me in the assessment as you had asked us to do it together. But did not receive a positive response.
Kind regards”
[153] Mr Marsh does not have a recollection of being instructed by Mr Richards to undertake the task together with Mr Nasir Sheikh, and does not have any specific recollection of why he did not respond. Although that is the case, he notes that he had been busy with duties outside Australia at the time, surmising that he “did not respond to this email because I either, overlooked, considered that it did not require a response, or considered that it could be dealt with on my return to the office”. 127
[154] There is no evidence before me to contradict Mr Marsh’s recollection. His explanation is reasonable. His failure to respond to the email was not unreasonable.
[155] This allegation has not been substantiated as unreasonable behaviour or conduct at work towards the Applicant.
F. Allegation of seeking to interfere with the assignment of work
Marsh Allegation 15. Mid-February 2016 – refusal to assist in the project led by Mr Nasir Sheikh
[156] The allegation is made by Mr Nasir Sheikh that in mid-February 2016. in the course of a meeting between Mr Nasir Sheikh, Mr Richards, Mr Marsh, and Mr Ottway, Mr Marsh sought to unreasonably interfere with the assignment of work. The topic of consideration was a performance-based navigation approval which had been assigned to Mr Nasir Sheikh, with him making the following allegation;
“140. … At the meeting, Mr Marsh said words to the effect of "Tell me if I'm doing it. If I'm not doing it, I don't want anything to do with it" in relation to that project. Work on this project required a team effort and Mr Marsh's comments made it clear to me that he would refuse to assist on a project that I led.
141. This incident occurred while CASA's internal investigation into my complaint against Mr Marsh was ongoing.
142. On or around 16 February 2016, Mr Richards reassigned the task to Mr Marsh.” 128
[157] Mr Marsh denies having said words of the nature alleged, 129 and that;
“133. At the meeting on 16 February 2016, CTM Richards advised me that the application for the operator had been received and that he had assigned the matter to Mr Nasir Sheikh. CTM Richards then requested that I have a look over the application. I recall being confused at the time of this request as to what was expected of me and sought clarification as to what CTM Richards' would like me to do by asking "would you like me to do the job" or words to that effect. I do not recall the precise words that I used.” 130
[158] Mr Richards’ recollection is that there was open discussion at the meeting of the operator’s application and that;
“As FOI Marsh was under an internal code of conduct investigation lodged by Mr Nasir Sheikh at that time, it had been determined that Mr Nasir Sheikh and FOI Marsh would not conduct any tasks together, until the investigation was concluded. Therefore FOI Marsh's comments to the effect of "tell me if I'm doing the task or if not then I can't be involved" were made in that context. I reject any suggestion that FOI Marsh's behaviour in this regard was inappropriate. On review of the task, no allocation had occurred to that time and as FOI Marsh was the assigned FOI for [Operator 1], I allocated the task for him to complete.” 131
[159] Mr Richards notes that after this meeting, on 18 February 2016, Mr Nasir Sheikh emailed him to confirm that he had “forwarded all the provided communication, and briefed Peter. Understand that Peter will be following up on this job”. 132
[160] Another of the people at the meeting, Mr Ottway, refers to the discussion within his witness statement in the following terms;
“47. During the discussion it became apparent that a verbal approval for the commencement of flight crew training had been given to [Operator 1] by the Applicant and FOI Marsh highlighted that this verbal approval was incorrect and a contravention of the required CASA process as the item required a formal written approval and/or variation to the organisation's [Civil Aviation Regulation] approval as per [Civil Aviation Order]. It is a fundamental aspect of CASA procedure that its officers give formal approvals under the aviation legislation in writing. Approvals are not given verbally. This ensures that appropriate written records are created of what an operator is authorised to do, and the point from which the approval operates.
48. The discussion was at all times appropriate for the workplace however it did highlight an incorrect processing of the task to date. Towards the end of the discussion FOI Marsh noted that he was the primary FOI assigned to [Operator 1] and accordingly requested direction from CTM Richards as to whether the task would stay with the Applicant or should be re-assigned to him for completion. I recall that FOI Marsh expressly stated this was to reduce confusion as to who was conducting the assessment. CTM Richards decided during the meeting to assign the task to FOI Marsh to complete. It was my observation that the Applicant did not object to this re-assignment of the task.” 133
[161] Mr Ottway was not cross-examined about this evidence, other than to seek a copy of the notes within his diary relating to the meeting. 134 I accept and prefer his evidence on the subject of this meeting.
[162] There is no evidence before me that could lead to a finding that Mr Marsh had sought to unreasonably interfere with the assignment of work, other than the Applicant’s written allegation on the subject, which is not elaborated upon in his oral evidence.
[163] This allegation has not been substantiated as unreasonable behaviour or conduct at work towards the Applicant.
Withdrawn allegation
[164] A final allegation against Mr Marsh, set out in the Amended Application, was withdrawn in the course of the hearing. 135 That allegation relates to a broad category of Mr Marsh’s failure to inform Mr Nasir Sheikh of relevant tasks, and of ignoring him.136
[165] The Applicant’s Outline of Submissions advances 15 allegations of bullying conduct in four categories against the second of the people named in his application, Mr Richards, who has been the Applicant’s Team Leader since about March 2014.
[166] Mr Richards’ formal title is Certificate Team Manager (CTM), a position he has held since 12 November 2015. Relevantly, prior to that, between January 2013 and November 2015 Mr Richards’ title was Certificate Team Leader, Southern Region. As with Mr Nasir Sheikh and Mr Marsh, Mr Richards has extensive aviation experience, particularly as a Chief Flying Instructor and as an Approved Testing Officer. He has approximately 5,500 hours of flight experience accrued in a variety of multi and single jet, turbine and piston powered aircraft types. He also has significant experience in representing the Australian Government in its international civil aviation work, particularly with authorities in Indonesia and Papua New Guinea. He has been employed by CASA since October 2000 when he commenced as an FOI. He has held management roles with the Authority since 2007. 137
A. Addressing Mr Nasir Sheikh in a rude and demeaning manner
Richards Allegation 1. From September 2015 – speaking in a curt and aggressive manner
[167] Mr Nasir Sheikh alleges that from September 2015 onwards he noticed that Mr Richards had ignored him and did not speak to him for days at a time, or spoke to him in a curt and aggressive tone. He alleges that he also observed Mr Richards glaring at him when he approached him in workplace, in private meetings and when he greeted him. The allegation is that this behaviour occurred approximately 10 times a week, leading to him being reluctant to approach Mr Richards. Mr Nasir Sheikh notes that since the first conciliation conference of this matter before me on 14 June 2016 the behaviour has reduced and now occurs approximately 3 times a week. 138
[168] Mr Richards denies this allegation, stating that in the course of any business day he may walk past Mr Nasir Sheikh’s workstation in an open plan office over 20 to 30 times. He denies the claim that he glared at Mr Nasir Sheikh in the workplace. 139
[169] These matters were not the subject of oral evidence of either of the protagonists. For the reason that the overall evidence about the allegation is slender, I find it not to have been substantiated.
[170] This allegation has not been substantiated as unreasonable behaviour or conduct at work towards the Applicant.
B. Ostracising Mr Nasir Sheikh
Richards Allegation 2. From September 2015 – ignoring Mr Nasir Sheikh for days at a time
[171] As referred to above, Mr Nasir Sheikh also alleges that from September 2015 Mr Richards did not speak to him for days at a time. There is no significant evidence offered on this allegation. Accordingly, there is no case for Mr Richards to answer.
[172] This allegation has not been substantiated as unreasonable behaviour or conduct at work towards the Applicant.
Richards Allegation 3. From September 2015 – failing to respond to Mr Nasir Sheikh’s emails and other communications
[173] Mr Nasir Sheikh makes a further allegation that, also from September 2015, he noticed that Mr Richards did not respond to his verbal communications and written emails on tasks from time to time. 140 Mr Nasir Sheikh particularises this with several examples.
[174] The first is a reference to the email communication above concerning the events on 22 September 2015. As recorded above he had sent Mr Richards an email on 25 September 2015 drawing his attention to Mr Marsh’s failure to respond to an earlier email to him on 15 September 2015. For his part, Mr Richards responds that he was on annual leave between 15 September and 5 October 2015 and he was unsure of why Mr Nasir Sheikh sent those emails to him at a time when he presumed Mr Nasir Sheikh would be aware he was unable to respond. He thought “it illustrates that the Applicant failed to respect usual boundaries and also that he also had a tendency to escalate matters which should have been capable of resolution through civil discussion.” 141
[175] The second example is an email sent by Mr Nasir Sheikh to Mr Richards on 26 October 2015, which drew to Mr Richards’ attention what he felt was unfair insofar as Mr Richards would be doing his annual performance assessment again (which is discussed in detail in Richards Allegation 7). The email provided a significant chronology about the difficulties Mr Nasir Sheikh had been having with Mr Marsh since April 2014; put forward that Mr Marsh had often been quite rude to him in emails and meetings; and, while acknowledging Mr Marsh had “apologized on a few occasions for his behaviour”, the pattern of conduct kept recurring. 142 The email concluded with the following;
“I am also not aware of any complaints being made against me about my teamwork skills and respectfulness. I had been shortlisted and assessed for a promotion, as a Certificate Team Manager. These events have transpired since.
I believe that redoing my annual performance assessment is an unprecedented and unwarranted measure. No one else on the team (including Peter) has been targeted for this revised performance assessment. Further, the performance assessments have all been finalised and salary increments processed.
Given the current situation, please note that I will be asking for assistance from HR to resolve things with Peter. Please do not take offence to this, as I simply want to resolve the entire matter so that the team may work in peace. I feel that it might be easier if someone outside of our team is called in.” 143
[176] Mr Richards’ response about this particular communication is in several parts. Firstly he does not accept that it accurately conveys a correct representation of the matter insofar as Mr Nasir Sheikh had drawn those matters to his attention at earlier times. 144 Secondly, he considered that he had fully addressed the matters raised in Mr Nasir Sheikh’s email of 26 October in an earlier conversation between the two on 21 October 2015. His evidence was that, given the need to conduct the forthcoming Performance and Communication Scheme (PACS) discussion for which an invitation had been sent the day before and which was scheduled for 6 November 2015, he felt he would respond to some of the issues at the PACS meeting as required.145
[177] The email from Mr Nasir Sheikh connects his bullying allegations, and particularly those from about September 2015, with the fact that he and Mr Richards were shortlisted for the team manager positions then being advertised. 146 In relation to that proposition Mr Richards gave evidence that he “welcomed” that the position had been spilled and that other employees would apply for the position he occupied.147
[178] The final example is from May 2016 and concerns a request made of Mr Nasir Sheikh by Mr Richards on Wednesday, 4 May 2016 for the review of a query from an operator about the expiry of an Examiner and Instructor Proficiency Check. Mr Nasir Sheikh initially provided a brief response on Monday, 9 May 2016 after the initial request and requested that Mr Richards let him know if he was to proceed on the basis Mr Nasir Sheikh had indicated. On Friday, 13 May 2016 Mr Nasir Sheikh queried Mr Richards about the matter because he had not heard further. 148
[179] Mr Richards responds in his witness statement to the effect that in his position he receives in excess of 200 emails a day, in addition to dealing with meetings and telephone calls. His responses to those communications vary and may include an email, a verbal conversation or note. 149
[180] I consider that each of the examples provided within Mr Nasir Sheikh’s allegation have largely been adequately answered by Mr Richards. Dealing firstly with the second and third examples, while it is unlikely any person would actually welcome the spilling of a position in which they were employed, Mr Richards’ responses are otherwise plausible, and his responses at the time (or lack of them), reasonable.
[181] The first example though, is in a different category. A query from a staff member directed to one on annual leave can, indeed, be unusual, and it is so in this case. It appears to be an endeavour by Mr Nasir Sheikh to draw his team leader into something happening in his absence, almost with the invitation to break into his leave, and take sides. Such would, of course, usually be inappropriate, as well as lacking maturity. On the other hand, a lack of response by a team leader to a communication while sent during a holiday period would not ordinarily be considered passing strange – after all, the recipient was on holidays. The sender of an email to a person on leave must surely accept the strong likelihood that their communication is not attended to for the duration of the recipient’s leave.
[182] Mr Richards, correctly and reasonably, chose not to intervene while on leave. He also appears not to have actively returned to the matter when he came back from leave. His rationalisation was that the email sent by Mr Nasir Sheikh reported that “[w]e are professional and have been working in a friendly manner” 150 and that upon his return, Mr Nasir Sheikh was out of Australia on business.151 However, that response does not entirely address the fact that the earlier part of the email was raising a dispute involving some significant interpersonal conflict. Leaving the matter to the forthcoming PACS meeting152 indicates a similarly ineffectual response. A capable manager may have returned to the matter on return from leave, asking questions such as “what was that about?”, “has the problem improved now?” Mr Richards did not do either of these things and must now accept criticism for his failure to respond in a timely way.
[183] Notwithstanding such commentary on my part, I am unable to find that Mr Richards’ failure to directly respond to the email was unreasonable. His deferral of the subject to the PACS discussion may have lacked personal injection or managerial best-practice, but it was an option open to him, albeit one that others looking at the situation will say could have been handled better. Mr Nasir Sheikh complains about the subject of the argument on 22 September 2015 being raised in the PACS discussion, with it seeming to this observer that he cannot have it both ways – desirous of a response from Mr Richards and then being critical when one is eventually received.
[184] This allegation has not been substantiated as unreasonable behaviour or conduct at work towards the Applicant.
Richards Allegation 4. March 2016 – exclusion from major operator audit
[185] Mr Nasir Sheikh alleges that in late March 2016, when his wider team was tasked with performing an annual audit of an operator in collaboration with four other inspectors from a different team, that he was the only person excluded from performing work on the audit other than another employee who was on leave at the time. His allegation is that Mr Richards’ failure to engage him on the project made him feel excluded and humiliated because he had capacity to perform work on the project and because he was not given an explanation as to why he had been left out. He further alleges that he was asked by many in the industry and within CASA the reason for his exclusion. The preparation for the audit ran over a period of almost 3 months. 153
[186] Mr Richards’ response to this allegation is twofold. Firstly, the annual audit had been escalated at short notice by CASA’s Southern Regional Manager, Ms Massey. The operator was notified of the audit on 20 March 2016 and the audit was to be conducted between 20 April and 6 May 2016. Secondly, in late February 2016, Mr Nasir Sheikh advised Mr Richards that his father was unwell and that he needed to visit him in Pakistan, which was agreed to by Mr Richards who approved carer’s leave for Mr Nasir Sheikh in the period 21 March 2016 to 1 April 2016. Mr Richards’ evidence is that at the time of approving the leave Mr Nasir Sheikh was uncertain about how long he would be in Pakistan. 154
[187] When Mr Nasir Sheikh applied for the leave on 26 February 2016 he indicated the period for which he requested the leave, which was Monday, 21 March 2016 to Friday, 1 April 2016 and with the added note that “Travelling overseas, may have to extend. Thanks.” 155 When Mr Richards approved the leave he indicated to Mr Nasir Sheikh that the leave could be extended with the issue of a doctor’s certificate.156 Mr Richards’ evidence on the subject of the allegation of Mr Nasir Sheikh being excluded from the operator audit concluded with the following;
“Therefore, when planning commenced for the [Operator 3] audit, Mr Nasir Sheikh was already in Pakistan and I was unsure when he would return. In those circumstances, it was impractical to task him to be involved in the audit. Additionally, the Regional Manager requested that a member of the CASA Sydney Regional office be in the audit team. When Mr Nasir Sheikh returned from Pakistan, I tasked him with business as usual activities together with ramp surveillance of several domestic ports. Mr Nasir Sheikh was also copied into the team findings during the conduct of the audit.” 157
[188] In summary, the evidence discloses;
[189] In relation to the allegation against Mr Richards that it would have been reasonable in all the circumstances for him to include Mr Nasir Sheikh in the audit when he returned from leave, Mr Richards gave the following response in cross-examination;
“I'll just move on to the next allegation I'd like to discuss with you. That allegation is that on or around 24 March 2016, you assigned work related to the [Operator 3] annual audit to all members of Mr Sheikh's team apart from him and one other employee. … Mr Richards, in relation to this allegation, you've said that it was impractical to involve Mr Sheikh at the time and that when he returned from his leave you subsequently put him on ramp surveillance; is that correct? --- … I have responded, that Mr Sheikh had requested carer's leave to visit his father which I fully supported. We were unaware of when he would be returning and matters - of safety matters with the airline escalated at very short notice, so with myself and the regional manager, we had to work out a plan for surveillance and that was based on not knowing if Mr Sheikh would be back at a certain time. However, two things; there are other components of the audit which are very important, like ramp surveillance. It is a - we will quite often, in surveillance tasks, we might have a big audit and we will go out and do ramp checks, and we do that to see what things are filtering down on the sides of the airline, the day-to-day business as usual operations. So it's very, very important. We had scheduled ramp checks in Sydney, Melbourne and we were planning also to do Hobart, a little bit ad hoc in dates, but so therefore my thinking was that when Mr Sheikh returns, I can use him for ramp surveillance and also with business as usual activities, so things that come up when the rest of the team is away. However, I included Mr Sheikh in all the correspondence, all the notes that we were receiving and the meetings which were appropriate for the audit.
Mr Sheikh said that after he returned from leave, he sent you emails saying that he had capacity to do additional tasks, is that correct? --- And that's where I required him to do - scheduled for some ramp checks and also there was some FRMS work, if I recall as well.” 159
[190] The evidence surrounding this allegation does not disclose unreasonable behaviour or conduct on the part of Mr Richards. Instead, the evidence discloses that he acted properly, fairly and reasonably, taking into account a number of variables, including the imprecision of Mr Nasir Sheikh’s expected return date. Such actions that he did take were reasonably open to him.
[191] This allegation has not been substantiated as unreasonable behaviour or conduct at work towards the Applicant. For the avoidance of doubt, I find both that Mr Richards did not behave unreasonably toward the Applicant while at work in respect of this allegation and that his actions were reasonable management actions carried out in a reasonable manner.
Richards Allegation 5. On or around 20 April 2016 – exclusion from involvement in review of Fatigue Risk Management System proposal
[192] The allegation is made by Mr Nasir Sheikh that he was unfairly excluded from the task of reviewing an operator’s Fatigue Risk Management System (FRMS), with him putting forward that;
“In or around January 2016, I submitted my work on the project for review by the Fatigue Risk Management System team. On 25 February 2016 I emailed flight operations inspector Mr Shawn Ottway, briefly addressing a concern that he had raised with my work. On or around 3 March 2016 Mr Richards met with me and said that I had not been respectful to Mr Ottway in my email. I asked why he thought so and what specifically was wrong with the wording. Mr Richards did not explain but asked me to review my email. On Friday 26 February 2016, Mr Richards agreed that I could join a FRMS team meeting on Monday 29 February 2016 to review my work by phone. On 29 February 2016 when I telephoned Mr Richards to join the meeting. Mr Richards did not allow me to join the meeting.” 160
[193] Mr Richards’ response is that Mr Nasir Sheikh had been invited to and had accepted the meeting invitation but on the morning of the meeting on Monday, 29 February 2016 Mr Richards realised that he was not in the office. The meeting was scheduled at 10:30 AM. When he spoke to Mr Nasir Sheikh by telephone the latter reminded him that he had mentioned to Mr Richards late on the afternoon of Friday, 26 February 2016 that he would not be in on Monday morning because he would be travelling to Canberra. Upon later checking Mr Richards noted that Mr Nasir Sheikh’s flight on 29 February was at 3:20 PM and he queries why, in that case, Mr Nasir Sheikh could not have attended a meeting at 10:30 AM in Melbourne. In response to the claim that Mr Nasir Sheikh was not allowed to join the meeting by phone, Mr Richards does not have a recollection that Mr Nasir Sheikh sought to be teleconferenced in to the meeting. 161
[194] The evidence does not allow a finding that Mr Nasir Sheikh was prevented from joining the meeting by phone. The evidence on the other elements of the allegation show merely that human error conspired to have the meeting proceed in the absence of the Applicant. There was no unreasonable behaviour or conduct by Mr Richards in relation to this allegation.
[195] This allegation has not been substantiated as unreasonable behaviour or conduct at work towards the Applicant.
Richards Allegation 6. On or around 23 May 2016 – exclusion from a relevant meeting
[196] Mr Nasir Sheikh alleges that he was excluded from a meeting that took place on or around 23 May 2016. Mr Nasir Sheikh alleges the meeting concerned Fatigue Risk Management Systems. 162
[197] Mr Richards’ response puts forward that instead of dealing with Fatigue Risk Management Systems the meeting actually dealt with human factors and cabin crew and that there had been a typographic error on his part in establishing the meeting. He invited neither Mr Nasir Sheikh nor Mr Marsh, both of whom had the relevant qualifications. He considers that Mr Nasir Sheikh has searched through his calendar without proper business cause. 163
[198] The matter was not dealt with in any significant way in cross-examination. I am therefore left with only the material set out in the Applicant’s allegations and Mr Richards’ response. I consider Mr Richards’ response to be both plausible and acceptable.
[199] This allegation has therefore not been substantiated as unreasonable behaviour or conduct at work towards the Applicant.
C. “Nit-picking” and fault-finding
Richards Allegation 7. In or around November 2015 – inappropriate re-draft of Mr Nasir Sheikh’s performance indicators
[200] The substantial allegation is advanced by Mr Nasir Sheikh that in or around November 2015, Mr Richards inappropriately re-drafted Mr Nasir Sheikh’s performance indicators and did so on the basis that the latter was at fault in his behaviour towards Mr Marsh. 164
[201] CASA operates a Performance and Communication Scheme, abbreviated in workplace references to PACS. Judith Keogh, the CASA Acting Branch Manager, People and Culture, gave evidence that the PACS enabled ongoing discussion and performance feedback to be provided to staff. 165 The 2015 – 2016 PACS cycle was commenced by Mr Richards providing the PACS form to Mr Nasir Sheikh during September, which was returned in that month as well. Mr Richards was then required to review the form to ensure that the documentation reflected the details of a performance discussion. If changes were required following a discussion between the two, the form was to be returned to the employee for changes to be made and agreed to by both parties. It was expected that once finalised and agreed, the final PACS form would be submitted by the manager and retained in an electronic holding bay.166
[202] Mr Richards’ assessment of Mr Nasir Sheikh at the time of the 2014 PACS assessment was that although his progression as an employee was on target, he;
“…still required direct supervision because he had not then developed sufficient regulatory knowledge and competency to be deployed unsupervised. The intent over the next twelve months was to develop his skills and competencies to be able to work independently as a CASA Inspector.” 167
[203] In relation to the 2015 PACS cycle, Mr Nasir Sheikh puts forward that he considered the content of the 2015 – 2016 PACS form with Mr Richards on or around 10 September 2015. He then added comments and returned the form to Mr Richards on 16 September 2015, who was on leave between 15 September and 5 October 2015. Even though Mr Nasir Sheikh had submitted his PACS form, Mr Richards did not regard the form as final, and intended to finalise it when he returned from leave. 168
[204] On 25 September 2015 Mr Nasir Sheikh emailed Mr Richards during his period of leave to let him know about the altercation with Mr Marsh on 22 September 2015 and “advised Mr Richards that I may be filing a harassment claim against Mr Marsh.” 169 Having done this, Mr Nasir Sheikh alleges that he was verbally advised by Mr Richards on 21 October 2015 that the latter would be redoing his PACS assessment and including reference to teamwork and respect.170 A calendar invitation for a further discussion between the two was sent by Mr Richards.
[205] Mr Richards recalls meeting with Mr Nasir Sheikh on 21 October 2015, and;
“… At this meeting, I expressed my disappointment that there had been a disagreement with the Acting Team Leader Marsh. The disappointment was concerning the improper behaviour by Mr Nasir Sheikh, given that Mr Nasir Sheikh and I had discussed and highlighted the behaviours of teamwork and respect only four weeks prior in his 10 September 2015 PACS discussion. Key elements were the failure to value others point of view, Mr Nasir Sheikh's confrontational communication style and the fact that Mr Marsh was at the time his team manager.
65. Again I raised with Mr Nasir Sheikh that I was disappointed in the fact that he was required to comply with reasonable directions from his Team Manager, noting that Mr Marsh was acting in that position at the time. I advised Mr Nasir Sheikh that I would be arranging a further PACS discussion. I recall also speaking with Mr Nasir Sheikh in relation to barging into a meeting room unannounced, where staff were grieving for the loss of one their team members who had passed away. …” 171
[206] There appear to have been several communications between the two in preparation for the meeting. These include an email from Mr Richards to Mr Nasir Sheikh, dated 2 November 2015 in which the following was set out;
“Riz, as I discussed with you this morning, I am writing to you to confirm our PACS cycle meeting for this Friday.
The intent of the meeting is to provide feedback on your existing 2015/16 PACS as your Team Leader, with specific discussion on core CASA elements of respect, communication, teamwork, and collaboration, as well as developing further components of your PACS. The development component of the PACS will be establishing key areas for support and improvement with training, and the establishment of a new mentor.
Overall, as your Team Leader I wish to engage with you, working on developing a strategy to move forward and provide clear expectations of the behaviour CASA requires in the workplace. These keys areas will be measured and assessed at future PACs reviews for 2015/16. You are welcome to have a support person attend on this PACS 2015/16 cycle meeting, if you wish to do so, I would appreciate prior advice. Alternatively, I could suggest that Grant Howard attend as an independent person.” 172
[207] There were then some emails between the two about the role of a support person in a PACS meeting, along with a request from Mr Nasir Sheikh to postpone the meeting in order that he make arrangements for the attendance of a support person. These were followed by a further email from Mr Richards on 5 November 2015 about the subject matter of the forthcoming meeting, which set out the following;
“Riz,
The scheduled meeting is a PACS discussion in line with the 2015/16 PACS cycle. The discussion will be around behaviours linked to CASA values. Of specific note, this PACS discussion is not a meeting for any specific disciplinary action.
I have met with you on two occasions since returning from leave on the 4 October [over a month ago now], and have verbally advised you that I will require to have a discussion with you concerning PACS. You do have the opportunity to bring along a support person to such a meeting.
I am willing to move our Friday meeting to Monday 9 November at 1030am, but overall I believe it is important that we hold the PACS discussion as the matter requires my attention as your Team Leader.
Thank You for your assistance.
Regards
Owen Richards” 173
[208] Mr Nasir Sheikh’s witness statement on the subject of the revised PACS form and the meeting on 9 November indicates his concerns with the PACS process surrounded the following matters; 174
[209] The original form was provided to Mr Nasir Sheik in September 2015. The form given to him in the meeting on 9 November 2015 set out more information, with some of the key differences from the September document shown in the underlined parts of the following (the text of which is extracted from the November form; note that being a printed version of an online form, it is lengthy, and only the parts of the form relevant to this decision have been reproduced) 175;
“Key result areas/objectives
Business as usual
Objective: Strengthen and develop the CASA region CMT model through a office wide collaborative approach to oversizing functions of regulatory service, surveillance and enforcement tasking.
Agreed performance measure: continue to develop and demonstrate communication skills which are clear, respectful, timely and effective in promoting regulatory requirements. Applying sound judgement when performing your regulatory role and making decisions based on legislation, CASA policy and procedures while applying the DAS’s guiding principles.
Objective: Develop stakeholder partnership in the development and implementation of the Operations Regulation suite, in particular FRMS & [Part] implentation.
Agreed Performance Measure: Continue to develop and demonstrate communication skills which are clear, respectful, timely and effective In promoting regulatory requirements. Applying sound judgement when performing your regulatory role and making decisions based on legislation, CASA policy and procedures while applying the DAS's guiding principles.
Business As Usual
Objective: Develop further communicative skills which are effective in promoting a regulatory relationship with the aviation industry. At a meeting held 9 November 2015, further discussion on the desired outcome to Communicate clearly and effectively with the Aviation community to develop good working relationships, promoting regulatory requirements and uphold CASA's reputation.
Agreed Performance Measure: Continue to develop and demonstrate communication skills which are clear, respectful, timely and effective in promoting regulatory requirements. Applying sound judgement when performing your regulatory role and making decisions based on legislation, CASA policy and procedures while applying the DAS's guiding principles.
CASA Values
CASA Value
Excellence: strive to excel in all we do.
How will this value be demonstrated?: Strong support for CASA values, Individually and as a group. Develop further skills to strive to excel in all regulatory tasks. Develop greater understanding of CASA business needs and expectations through the implementation of a development plan, including new inspector mentor.
Courage: act with strength of character and conviction.
How will this value be demonstrated? Strong support for CASA values individually and as a group. Awareness of your personal Outputs and Behaviours with internal & External Stakeholders to develop a positive and respectful working relationship.
Teamwork: work together to promote a strong, cohesive and highly effective workforce.
How will this value be demonstrated?: Strong support for CASA values, Individually and as a group. Work together in the [aircraft], CMT 1 and Southern region regulatory activities to promote a strong, cohesive and highly effective workforce – key area is for improvement to improve CASA's organisational performance. Valuing other points of view, accepting of feedback, communicating in a non-confrontational manner, address the issues – not the person. Follow reasonable managers directions which are directed in a appropriate and reasonable manners.
Fairness: actions and decisions are informed, consistent, risk-based, evidence driven and without bias.
How will this value be demonstrated?: Regulatory judgement & effective oversight methodology through compliance and knowledge of CASA legislation, and policies. Decision making based on informed, consistent and evidence based, linked to applicable CASA legislation, policies and procedures.
Integrity: actions and behaviour are open, transparent, ethical and accountable.
How will this value be demonstrated? Strong support for CASA values, individually and as a group. Engagement with our aviation community for the promotion of a positive safety culture. Effective management of dealing with conflict with further training and Inspectorate mentoring.
Respect: engagement with our peers, colleagues and the wider aviation community Is clear, concise and respectful at all times.
How will this value be demonstrated?: Strong support for CASA values, individually and as a group. Valuing other points of view, communicating in a non-confrontational manner, address the issues – not the person.
Career perspective
Discuss the employee's goals for the next year
Response: FRMS/[Part] implementation
Meeting held in Sept 2015, with further PACS cycle meeting scheduled for 9 November 2015. Key development aims are the establishment of new Mentor, outside CMT 1 to provide independent regulatory knowledge, advice and decision making. Training to be assigned in the areas of conflict resolution, and personal strategies to address and improve the working relationship with all staff members. Outcome which will be measured through the PACS cycle will adherence to the upholding of CASA' values and expectations in the workplace.
Development
Development plan comments
Response: Meeting held in Sept 2015, with further PACS cycle meeting scheduled for 9 November 2015. Key development aims are the establishment of new Mentor, outside CMT 1 to provide independent regulatory knowledge, advice and decision making. Training to be assigned in the areas of conflict resolution, and personal strategies to address and improve the working relationship with all staff members. Outcome which will be measured through the PACS cycle will adherence to the upholding of CASA' values and expectations in the workplace.” (underlining added)
[210] The amendments made by Mr Richards to Mr Nasir Sheikh’s PACS in the meeting on 9 November 2015 cover six broad areas as follows;
[211] No complaint is made by Mr Nasir Sheikh about the original PACS from September 2015. No complaint is made by Mr Nasir Sheikh that he has been asked to participate in a PACS review.
[212] Instead, the allegation is made that Mr Richards set about redrafting the PACS inappropriately and did so on the basis that Mr Nasir Sheikh was at fault in his behaviour towards Mr Marsh. As a result, the Commission’s analysis of whether there is unreasonable behaviour or conduct may proceed on the basis of a consideration of steps taken by Mr Richards to redraft the form after the time that the original form was returned to him by Mr Nasir Sheikh on 16 September 2015. 176
[213] Having heard all the evidence in this matter and taking into account the state of the key relationships from September 2015, it is evident that Mr Richards saw the rescheduled PACS meeting as an occasion on which to take up and try to resolve what was becoming a difficult team dynamic for him, and one in which two members of the team, Mr Nasir Sheikh and Mr Marsh, were heading toward conflict, if they were not already in it. He was surprised when, in the 9 November 2015 meeting, Mr Nasir Sheikh said he could not recall the discussion of behaviours in the September PACS meeting. 177
[214] The evidence supports the propositions for development by Mr Nasir Sheikh that Mr Richards wrote into the amended November PACS form.
[215] There were legitimate points of discussion to be had about Mr Nasir Sheikh’s development within the team; his understanding of CASA and its environment; the breadth of his competencies; the work of a regulator and the nuances that an inspector must bring to such a position. On balance, these matters were not necessarily criticisms of Mr Nasir Sheikh’s performance, but things that may be expected to be the subject of ongoing discussion for any employee within the first few years of employment by a regulatory agency such as CASA.
[216] Mr Richards’ concerns about Mr Nasir Sheikh when he returned from leave in October 2015 are well expressed in his witness statement;
“... On my return from annual leave, Mr Nasir Sheikh was in [Asia on an aircraft] task. I discussed the [Operator 3] Cockpit Checklist disagreement, with FOI Marsh and Regional Manager Michelle Massey. I had examined all the associated material concerning the event and my observation from the review of the information was that Mr Nasir Sheikh was unable or refused to identify why the application could not progress. When he did ultimately outline the nature of his concerns, his advice was very broad, non-specific and incorrect. I was also concerned that CASA had had what appeared to be a reasonably uncomplicated application for more than four weeks and that [Operator 3] had begun to raise concerns about how the application was being managed. In light of that background I considered that the application needed to be resolved swiftly, and because Mr Nasir Sheikh was absent, I tasked FOI Marsh to provide me with a recommendation as to the disposition of the application. However, in light of the dispute between Mr Nasir Sheikh and Mr Marsh about the approval, I also arranged for it to be independently peer reviewed by FOI Ottway and SSI Reilly. I also understood that this approach was consistent with Ms Massey's expectations for the handling of the application. This peer review concluded that there were no safety issues with the [Operator 3] proposal and its associated safety case and, on that basis I issued the approval on 6 October 2015.” 178
[217] By 21 October 2015, when Mr Richards advised Mr Nasir Sheikh that he would be redoing the latter’s PACS assessment, Mr Nasir Sheikh’s relationship with Mr Marsh had fractured significantly. There had been the argument between the two on 15 September 2015, after which Mr Nasir Sheikh wrote to Mr Richards complaining about Mr Marsh’s conduct and observing that “I am thinking filing a harassment case would be the correct line of action”. 179 Mr Nasir Sheikh wrote to Mr Marsh on 17 October 2015 about their mentoring relationship, advising that “[t]hough you had been appointed my mentor around March 2014. I had officially requested the Team Leader and Regional Manager in May 2014, that I would prefer to have either of them as my mentor. We have had no such relationship since.”180
[218] At that time there was plainly a problem between the two and likely one that was going to get worse without some steps being taken to remedy the situation. For Mr Richards to do nothing about the situation would be close to negligent; it would be a failure to contain an obvious poor situation; and it would be avoiding the need to assess and control the foreseeable effects that may flow from a deterioration of the situation, including effects for the administration of CASA’s functions and the health and safety of all concerned, including Mr Nasir Sheikh, Mr Marsh, and even Mr Richards.
[219] It would have been reasonable for Mr Richards to view the combined effect of Mr Nasir Sheikh’s emails to him of 22 and 25 September 2015 while on leave as an actual complaint of harassment, but he was not obliged to do so. That was just one reasonably available alternative. Another was to take up with the protagonists their respective conduct, identify perceived deficiencies, and seek that they pay attention to what had been identified. Employment of an alternative such as this would, of course, be dependent on there being reasonable evidence of such deficiencies.
[220] Mr Richards chose to address the obvious dysfunction through this latter pathway; to have a discussion in a resumed PACS meeting of the matters he saw as being relevant to Mr Nasir Sheikh. Choosing this pathway was a reasonable response to the situation. It was potentially a less formal, more discursive, and less confrontational means of identifying root causes of the evident problems and privately discussing matters of development need, inattention to skill and training, and perceptions about possible departure from policy and standards. It potentially allowed the development of a private agreement on what should be mutually done in order to stave off a further deterioration of the situation, and to hopefully improve it.
[221] Having not finalised the discussion surrounding the PACS form submitted on 16 September 2015, there is no lack of reasonableness on the part of Mr Richards to resume the discussion at a mutually convenient time. The context of the events of September 2015, including mutual absences, leads to the view that Mr Richards’ notification on 21 October 2015 was also reasonable. The matters notified for the content of the discussion were also reasonable.
[222] This allegation has not been substantiated as unreasonable behaviour or conduct at work towards the Applicant. For the avoidance of doubt, I find both that Mr Richards did not behave unreasonably toward the Applicant while at work in respect of this allegation and that his actions were reasonable management actions carried out in a reasonable manner.
Richards Allegation 8. 9 November 2015 – use of the salutation “Hi Peter” in emails to Mr Marsh
[223] Mr Nasir Sheikh complains that in the PACS meeting on 9 November 2015 he was counselled not to use the salutation “Hi Peter” in his emails to Mr Marsh. He alleges that Mr Richards asked him how he would feel if others addressed him in that way. 181
[224] Mr Richards’ evidence on this matter is that he did not take issue with the salutation used in the email, but rather its content, arguing that his concerns involved what might be an attempt by one staff member to counsel another;
“The key point is the subject heading, "Respect and teamwork", and the key point is the content in relation to the senior FOI and the mentor. What I sense was that it was a form of counselling, of one inspector counselling another inspector, when that is not the role of - that is a supervisory role.” 182
[225] The email which is the subject of this exchange was sent by Mr Nasir Sheikh to Mr Marsh on 17 October, and is in the following terms;
“Subject: Respect & Teamwork
Hi Peter,
I am writing this email in response to your mentioning as being a
1- Senior FOI : This position does not exist in CASA. I recognise you joined two years earlier, and am happy to learn from you and other team members.
2- Appointed Mentor: Though you were appointed my mentor around March 2014. I had officially requested the Team Leader and Regional Manager in May 2014, that I would prefer to have either of them as my mentor. We have had no such relationship since.
Right after that, we spoke on the subject of no gradient in the team. We are colleagues, and should work as professionals with mutual respect for each other. We all are part of a larger CASA team, and should work with synergy & harmony.
Please take this email in the friendly spirit it is being sent in, to clarify the matter and involve forward.
Best regards,
Riz” 183
[226] Even though Mr Nasir Sheik puts the email forward in a “friendly spirit”, the context of the workplace in mid-October 2017 means that it would be highly unlikely to have been received by Mr Marsh in such a friendly spirit. It was conveying to Mr Marsh the message that irrespective of what he may think, there was no divide of experience or hierarchy between the two, and he was no longer welcome to be Mr Nasir Sheikh’s CASA appointed mentor. Plainly the communication annoyed Mr Marsh and it would probably annoy many, if not most, recipients. Mr Marsh complained about it to Mr Richards.
[227] The effect of all that was to create a further problem for Mr Richards. It would be unremarkable that any manager would draw their perception of the problem to the sender of the email. I accept Mr Richards’ evidence that his concern with “the tone and content of the email which gave the impression that Mr Sheikh considered that it was open to him to counsel Mr Marsh in relation to his workplace behaviour”. 184 It was reasonable for him to hold that concern.
[228] This allegation has not been substantiated as unreasonable behaviour or conduct at work towards the Applicant. I find that Mr Richards was not counselling Mr Nasir Sheikh about his use of a particular salutation, but was instead counselling him about the tone and content of the correspondence. For the avoidance of doubt, I find both that Mr Richards did not behave unreasonably toward the Applicant while at work in respect of this allegation and that his actions were reasonable management actions carried out in a reasonable manner.
Richards Allegation 9. 9 November 2015 – the assertion that Mr Nasir Sheikh was at fault in his behaviour towards Mr Marsh
[229] This allegation is a subset of the allegations put forward about the matters discussed by Mr Richards in the PACS meeting on 9 November 2015. The extent of Mr Nasir Sheikh’s allegation in this regard is slight. His Outline of Submissions puts forward that Mr Richards asserted in the meeting “that Mr Nasir Sheikh was at fault in his behaviour towards Mr Marsh” 185 and repeats that phrasing in his Closing Submissions.186 Yet, nowhere in the Applicant’s oral evidence or his witness statement does he use the word “fault” in the context of this allegation; that is Mr Nasir Sheikh alleges that Mr Richards told him he was at fault in his behaviour towards Mr Marsh. The use of the term “at fault” appears to be an embellishment in preparation of the outline.
[230] Instead of saying that blame was pointed in his direction, Mr Nasir Sheikh’s actual evidence is merely that Mr Richards raised the issue of Mr Nasir Sheikh’s “behaviour towards Mr Marsh when he was acting Team Leader. I responded that I behave respectfully with Mr Marsh when he is acting Team Leader, but that he sometimes gets carried away with his role”. 187
[231] Mr Richards agrees that he raised the subject matter and that he did so more or less in the way that is actually and evidentially alleged. In doing so, he did not say that Mr Nasir Sheikh was at fault, but rather that he wished to “discuss concerns with Mr Nasir Sheikh's behaviour in the workplace, in relation to his relationship with FOI Marsh, specifically when Mr Marsh was Acting Team Leader in September 2015”. 188
[232] To the extent that Mr Richards’ concerns in this regard might have been reasonably held, there is nothing within that statement that could be construed either as a statement that Mr Nasir Sheikh was at fault or that it was not reasonably expressed. The expression plainly was that Mr Richards desired to discuss the concerns he held.
[233] Given all that had occurred up to that point between Mr Nasir Sheikh and Mr Marsh it is altogether unremarkable that Mr Richards would seek to raise with Mr Nasir Sheikh the subject of his behaviour in the workplace and his relationship with Mr Marsh. By that point the relationship had fractured. Mr Richards says about Mr Nasir Sheikh’s behaviour at work, and especially during the period in which Mr Marsh was the Acting Team Leader, that he was disappointed there had been a disagreement involving “improper behaviour”. 189 While it was unremarkable that Mr Richards chose to raise these matters with Mr Nasir Sheikh, it would be wholly remarkable if he did not.
[234] This allegation has not been substantiated as unreasonable behaviour or conduct at work towards the Applicant. For the avoidance of doubt, I find both that Mr Richards did not behave unreasonably toward the Applicant while at work in respect of this allegation and that his actions were reasonable management actions carried out in a reasonable manner.
Richards Allegation 10. 3 December 2015 – counselling Mr Nasir Sheikh that he should not interrupt others
[235] The allegation is made by Mr Nasir Sheikh that, in a meeting on 3 December 2015, team members were in the course of asking questions and he asked a question of Mr Ottway about the conduct of a particular operator and that;
“Mr Marsh interrupted me and said rudely, "You cannot ask that - they can do as they like." I asked Mr Marsh politely if he could allow Mr Ottway to respond to my question. After the meeting, Mr Richards took me aside and said to me that I should not interrupt. He then sent me an email to this effect. 190”
[236] The email Mr Richards sent to Mr Nasir Sheikh sets out the following;
“Riz,
As discussed this morning, as your Team Leader I would like identify a key area that I have observed in recent meetings.
First point is Question technique. I have observed in a meeting today and in the recent Area AAOC meeting that in attempting to communicate your question/s there is a tendency to cut the person out or over talk and therefore not provide the ability for the other person to be heard.
This is general problem we all have in communicating, especially when it is a larger group, with many interested parties. My suggestion is that if you cannot find an opportune time to discuss the question, you write the question down and discuss it verbally post the meeting. Also by waiting for the right time to ask a question, it also assists the presenter and the other people in the meeting for flow/format of the meet.
This information is provided for your guidance and development.
Regards
Owen Richards” 191
[237] Mr Nasir Sheikh responded at the time, apparently accepting of the communication “Thank you for your feedback, I certainly value your advice”. 192
[238] Mr Ottway’s evidence on the subject is as follows (noting that he was not cross-examined on this or any matter);
“… I arranged a briefing for 3 December 2015 with the flight operations staff members of [CMT] to provide an update on the new Air Operator Certificate (AOC) operators who would be transferred to and come under the regulatory oversight of [CMT] on 7 December.
29. During the discussion about one of those AOC holders, [Operator 1], the Applicant asked whether the operator's simulator training program had been approved under a [regulation] of the Civil Aviation Safety Regulations 1998 (CASR).
30. FOI Marsh attempted to point out that the question was irrelevant or technically inapplicable, however the Applicant spoke over the top of FOI Marsh and stated that it was his right to ask questions and that FOI Marsh should stop interrupting. FOI Marsh made no further comment on the matter.
31. I recommenced my briefing and started to provide an answer to the Applicant's question when the Applicant spoke over the top of me and asked the same question as before.
32. I stated to the Applicant that if he would stop interrupting me I would be able to answer his question. I then stated that an approval under [regulation] was not required as the elements of the simulator training program are approved under [regulation] of the Civil Aviation Regulations 1988 as per other airline operators.
33. No further comment was made on the matter. The applicant did not indicate whether he agreed/disagreed with the statement. The applicant did not apologise or indicate that there was anything wrong with the manner of his interruptions.” 193
[239] I accept and prefer Mr Ottway’s evidence on this matter to that of the Applicant to the extent of any inconsistency. It is evident from the foregoing that there was no unreasonable behaviour or conduct on the part of Mr Richards.
[240] This allegation has not been substantiated as unreasonable behaviour or conduct at work towards the Applicant. For the avoidance of doubt, I find both that Mr Richards did not behave unreasonably toward the Applicant while at work in respect of this allegation and that his actions were reasonable management actions carried out in a reasonable manner.
Richards Allegation 11. 11 May 2016 – emailed request to correct a single line in a four page report
[241] Mr Nasir Sheikh advances the allegation that Mr Richards requested him to make a change to a single line in a four page report while seated only two desks away. The emailed request made by Mr Richards is in these terms; 194
“
Riz- could you please review the comments on the Ramp Checklist form reference mark on the Leading Edge of the [aircraft] Wing.
Thanks
Owen”
[242] Mr Nasir Sheikh’s emailed file note records the following;
“
Instead of discussing in person, I am only 2 desks away. Owen is trying to build a case.”
[243] No evidence is offered by the Applicant in relation to this allegation, other than the allegation itself. There is nothing unreasonable in Mr Richards’ request or the manner in which he centred. There is nothing remarkable in a manager or supervisor making such a request by email. It is not unreasonable behaviour or conduct and it is not bullying.
[244] This allegation has not been substantiated as unreasonable behaviour or conduct at work towards the Applicant.
D. Unfair allocation of work between Mr Nasir Sheikh and Mr Marsh
Richards Allegation 12. Between September 2015 and April 2016 – failure to allocate new work concerning a particular airline and aircraft
[245] Mr Nasir Sheikh sets out in his witness statement that, despite his team being assigned numerous tasks associated with Operator 3’s operations, and despite he and Mr Marsh having qualifications for the aircraft it used, he was not given any new tasks relating to the operator or the particular type of aircraft between September 2015 and April 2016 and since April 2016 has only been assigned minor tasks. He alleges that Mr Richards has inappropriately allocated tasks in such a way that Mr Marsh performed 6 of 7 tasks involving international travel and that, in totality, Mr Richards’ conduct made him feel unappreciated and humiliated and that in particular the conduct affected perceptions about his competence within CASA and the aviation industry. 195
[246] Mr Richards concedes there is differential treatment for the assignment of tasks between Mr Marsh and Mr Nasir Sheikh, however he argues it is for legitimate purposes. The tasks noted by Mr Nasir Sheikh are assigned to the CTM, being Mr Richards, not the team and he considers certain factors in assigning individual tasks;
“In allocating individual tasks, the CTM must refer to AOC oversight posture, inspectorate resources, tasking priorities and specific aircraft fleet requirements [aircraft examples]. There are also requirements for complex matching of technical disciplines of Continuing Airworthiness, Flight Operations, Cabin Safety and Ground Operations. There is added administrative oversight of domestic and international tasks which require longer project plans. The relative experience and capabilities of individual inspectors is also a matter which a CTM must take into account in assigning individual tasks.” 196
[247] While both Mr Marsh and Mr Nasir Sheikh are qualified on the particular aircraft, when it comes to conducting regulatory service and surveillance tasks without supervision, it was Mr Richards’ assessment at the time that only Mr Marsh “is fully competent and holds the key inspectorate competencies to effectively conduct these tasks for CASA”. 197
[248] Mr Richards concedes that a particular task was reassigned from Mr Nasir Sheikh on 5 October 2015 (dealt with in Marsh Allegations 10 and 11). In relation to the contention by Mr Nasir Sheikh that responsibility for certain tasks was assigned to Mr Marsh and that he was not asked to peer review Mr Marsh's work on the tasks complained of, Mr Richards responds that;
“Firstly there are some specific tasks that Mr Nasir Sheikh is tasked with that FOI Marsh will have no involvement with. Secondly, Mr Nasir Sheikh is an inspector who still requires further training and therefore the peer review and mentoring is a necessary requirement”. 198
[249] In response to the allegation that between September 2015 and April 2016 he was not given any new tasks associated with this operator or its aircraft type, and that since around April 2016 he has been assigned minor tasks, Mr Richards gives the evidence that a different result could not occur;
“… as Mr Nasir Sheikh has refused to commit to PACs discussions since 9 November 2015, and he only holds competencies in some 5 of 16 competencies, I cannot authorise Mr Nasir Sheikh to conduct tasks without direct supervision.
104. An example of where Mr Nasir Sheikh has previously failed to conduct a task unsupervised was in the management of Flight Instructors and Examiners at [Operator 4] in Melbourne. Mr Nasir Sheikh was to project manage the task of conducting simulator checks on staff [at Operator 4]. The project management included liaison with [Operator 4], CASA Flight Standards and CASA Flight Crew Licencing. The project oversighted by Mr Nasir Sheikh became derailed and Industry became very concerned. A fact of which I became aware in mid May 2016, when I was contacted by the Team Leader, Flight Standards Ian Ogilvie
105. As a consequence, I engaged industry and CASA staff to identify the issue. The key problem was there was no one person managing the project. Mr Nasir Sheikh was in communication with different staff members within CASA which then created cross communication of different ideas with industry because he was not ensuring appropriate control of the flow of communications relating to the project. The Team Leader Flight Standards, Ian Ogilvie advised me that Mr Nasir Sheikh seemed to have difficulty in analysing or progressing the matter and was most resistant to contact industry and to work through solutions and options. Mr Ogilvie also verbally advised me that Mr Nasir Sheikh had stated that he would prefer if Flight Standards spoke with [Operator 4] directly rather than communicating with them personally.” 199
[250] Mr Richards also denies assertions by Mr Nasir Sheikh that particular projects were kept from him and that other work about which he complains was either cancelled, or the reassignment made operational sense, for example the replacement of Mr Nasir Sheikh as the lead auditor on an overseas port came about because the operator changed the dates and Mr Marsh was assigned Flight Operations Inspector dealing with the overall matter.
[251] At the relevant time, between September 2015 and April 2016, Mr Richards held concerns about Mr Nasir Sheikh’s overall abilities and had held them for some time. Those concerns are amply discussed within Mr Richards’ written evidence and his views in this regard have either not been challenged by the Applicant in these proceedings or are objectively available as findings of a reasonable belief on the part of Mr Richards, or in any event not part of Mr Nasir Sheikh’s allegations of workplace bullying. In particular, Mr Richards’ assessment of Mr Nasir Sheikh included the following;
“47. This means that he cannot yet be trusted to work fully unsupervised, because he:
(a) has failed to demonstrate that he can adequately lead an audit of a significant AOC;
(b) has not developed the skills and knowledge (post core training) in aviation legislation, standards, procedures and guidance material;
(c) requires further supervisory review and peer review of regulatory submissions;
(d) does not consistently represent CASA with the appropriate behavioural skill set; and
(e) despite being provided with additional training in the preparation of regulatory reports and briefings, still provides written advice to industry which is confusing and lacks sufficient detail.
48. I consider that through my guidance, provision of development opportunities, on the job training and mentoring by CASA Southern Region staff, I have attempted to assist Mr Nasir Sheikh to succeed in his role. However it appears to me that Mr Nasir Sheikh has now been with CASA for more than two years and has still not achieved the required regulatory knowledge and skill to act independently, without supervision, in all expected tasks of a FOI.” 203
[252] I consider the explanation given by Mr Richards on these matters to be both plausible and reasonable. He was required to balance work across competing organisation and client demands with the different competencies of his available staff. Necessarily he needed to make judgements about the relative competencies of his staff and, so far as there is evidence before the Commission on the subject, such were reasonable and founded in fact. In this regard, I note that Mr Nasir Sheikh, who bears the onus on these matters, has not brought forward evidence that contradicts Mr Richards’ central claim that his competency profile was different from Mr Marsh’s.
[253] In forming my views on this and other matters relating to the allegations of bullying against Mr Richards, I have taken into account that Mr Nasir Sheikh’s representative put forward that the “actions said to have been bullying conduct perpetrated by Mr Richards span a period from September 2015 onwards shortly after Mr Sheikh was shortlisted for Mr Richards’ role”. 204 Mr Nasir Sheikh was ultimately unsuccessful in his application, whereas Mr Richards was successful in his, having been permanently assigned into the role from November 2015. The evidence on this allegation, of a conflict of interest between the two, is slight, and I do not find either that the existence of Mr Nasir Sheikh’s application was a factor in Mr Richards’ behaviour or conduct toward him, or that Mr Richards had a conflict of interest in relation to his management of Mr Nasir Sheikh.
[254] I also note that Mr Nasir Sheikh did not, either through his evidence or the cross-examination of other witnesses, including Mr Richards, seek to disturb Mr Richards’ observations about Mr Nasir Sheikh’s communication style or his demonstrated competencies.
[255] This allegation seeks to put forward that Mr Richards inappropriately directed tasks associated with the particular operator and a certain aircraft away from Mr Nasir Sheikh and towards Mr Marsh, and that such amounts to bullying at work. There is no evidence that would support this proposition. I find in this regard, that Mr Richards’ decisions were consistent with his determinations about Mr Nasir Sheikh’s abilities and were reasonable and appropriate.
[256] This allegation has not been substantiated as unreasonable behaviour or conduct at work towards the Applicant. For the avoidance of doubt, I find both that Mr Richards did not behave unreasonably toward the Applicant while at work in respect of this allegation and that his actions were reasonable management actions carried out in a reasonable manner.
Richards Allegation 13. Between September 2015 and April 2016 – allocation of work so that Mr Nasir Sheikh was not involved with any international travel
[257] A subset of the foregoing allegation is that Mr Richards organised work in such a way that he preferred Mr Marsh when it came to making decisions about international travel. 205 The brief allegation contained within Mr Nasir Sheikh’s witness statement was not amplified upon by him in oral evidence, or in cross-examination of Mr Richards. Given this situation, there is insufficient evidence before me to make a finding in favour of the Applicant on this matter. The evidence does not rise to a point of there being a case for Mr Richards to answer.
[258] This allegation has not been substantiated as unreasonable behaviour or conduct at work towards the Applicant.
Richards Allegation 14. On or around 16 February 2016 – reassignment of a performance-based navigation task
[259] This matter is the same allegation as one referred to above, identified as Marsh Allegation 15, and relates to a conversation between Mr Nasir Sheikh, Mr Marsh and Mr Richards about who would perform the approval of Operator 1’s performance-based navigation application, but this time with the claim being made that Mr Richards made an unfair allocation of work at a time when his bullying and harassment complaint against Mr Marsh was ongoing. 206
[260] Mr Richards explains his decision to assign the task to Mr Marsh as being a product both of the fact that until that time no assignment had been made by him of the task, and that Mr Marsh was the assigned Flight Operations Inspector for [Operator 1]. He further explains that, because the two men were parties to the CASA Internal Bullying and Harassment Complaint initiated by Mr Nasir Sheikh, “Mr Marsh's comments to the effect of "tell me if I'm doing the task or if not then I can't be involved" were made in that context”. 207
[261] Mr Richards’ recollection of the matters discussed at the meeting was corroborated by another person at the meeting, Mr Ottway, who gave evidence that Mr Nasir Sheikh had not objected to the reassignment of the task. 208 Mr Ottway was not cross-examined on any part of his evidence.
[262] I accept Mr Richards’ explanation of his decision, and especially that Mr Marsh was the assigned staff member for the operator and that he was dealing with a circumstance in which the two staff members were the subject of a bullying and harassment investigation, thus justifying the context in which he took Mr Marsh’s comments in the meeting that the work either needed to be assigned to him, or he should not be involved.
[263] This allegation has not been substantiated as unreasonable behaviour or conduct at work towards the Applicant. For the avoidance of doubt, I find both that Mr Richards did not behave unreasonably toward the Applicant while at work in respect of this allegation and that his actions were reasonable management actions carried out in a reasonable manner.
Richards Allegation 15. From September 2015 – assignment of inferior work
[264] Mr Nasir Sheikh makes an allegation, essentially in two parts, that Mr Richards assigned him inferior work from some stage in September 2015.
[265] The first of these parts is as set out earlier, in Richards Allegation 12, that between September 2015 and April 2016 Mr Nasir Sheikh was kept from significant work associated with Operator 3 and the aircraft it flew, with Mr Marsh being preferred. 209 I found that allegation not to be substantiated, with Mr Richards’ decisions being reasonable and appropriate. No additional evidence has been offered in relation to this separate allegation. This part has not been substantiated by the Applicant.
[266] The second part is an allegation that between 5 and 10 April 2016, and then again on 4 May 2016, Mr Nasir Sheikh asked Mr Richards about whether there were any particular tasks he could be given to complete, and that in particular;
“147. From 5 to 10 April 2016, I emailed and verbally requested Mr Richards asking whether there were any role specific tasks for me to complete. It is important to conduct audits to remain current. I volunteered to do a ramp check along with an observation of [Operator 3’s] fatigue risk management system training in Sydney. Around 29 April 2016 Mr Richards added me to the existing inspectors for conducting one ramp check in Melbourne as part of the [Operator 3] annual audit. This was the extent of my involvement with the [Operator 3] audit.
148. On 4 May 2016 I sent an email to Mr Richards asking for additional tasks because I had capacity. Mr Richards then asked me to review a 4-page document submitted by [Operator 3].” 210
[267] Mr Nasir Sheikh’s complaint in this regard is particularly connected with an audit planned to be conducted by CASA of a particular operator, which is dealt with in greater detail in Richards Allegation 4. Mr Richards’ response on these matters is in several parts; firstly that Mr Nasir Sheikh had been absent on personal leave during the period of planning for the audit, and his expected return date was open to some change; and secondly, that by the time he returned, he engaged him as would be expected;
“Mr Sheikh said that after he returned from leave, he sent you emails saying that he had capacity to do additional tasks, is that correct?---And that's where I required him to do - scheduled for some ramp checks and also there was some FRMS work, if I recall as well.” 211
[268] As with the matters set out in Richards Allegation 4, the evidence surrounding this part of Mr Nasir Sheikh’s allegation, that from September 2015 Mr Richards assigned him inferior work, does not disclose unreasonable behaviour or conduct on the part of Mr Richards.
[269] Having found that neither part of the allegation has been substantiated, it follows the allegation itself has not been demonstrated to be correct.
[270] This allegation has not been substantiated as unreasonable behaviour or conduct at work towards the Applicant.
[271] The product of the foregoing analysis of the 30 allegations maintained by Mr Nasir Sheikh against Mr Marsh and Mr Richards, as set out in his Outline of Submissions, is that I have found only one instance of unreasonable conduct or behaviour, albeit without the attendant finding that the conduct created a risk to health and safety. That finding was in relation to Marsh Allegation 5, in which I found that Mr Marsh’s comment that Mr Nasir Sheikh would not be made a manager was unreasonable behaviour or conduct at work towards the Applicant.
[272] No other findings of unreasonable conduct or behaviour have been found by me in relation to the other 29 allegations.
[273] Accordingly, Mr Nasir Sheikh’s application fails for the reason that he has not met the jurisdictional pre-requisite of there having been repeated unreasonable conduct by an individual, or group of individuals, towards a worker and where that behaviour creates a risk to health and safety. In particular, I have not found that there has been repeated unreasonable conduct, or that such conduct as has been found created a risk to health and safety.
[274] An order dismissing Mr Nasir Sheikh’s application is published at the same time as this decision.
[275] Although I have not found that Mr Nasir Sheikh has been bullied at work, the state of the relationships between him and the two people named, Mr Marsh and Mr Richards, is a matter of concern to me, and I would expect, to CASA. In this regard, I must respectfully endorse the opinion expressed by Deputy President Gostencnik in the recent matter of Purcell v Farah and Mercy Education Ltd T/A St Aloysius College, 212 in which the following was said;
“[1] It is a sad indictment on the capacity of two education professionals and the educational institution in which they are employed, that to resolve an obviously tense interpersonal relationship involving some mutual animus, resort must be had to this tribunal and the anti-bullying provisions of the Fair Work Act 2009 (Act). But, that it seems is the way of things, with workplace combatants all too keen to cede to a third party the capacity to resolve conflict, which with a modest amount of goodwill, some introspection and reflection, ought be capable of resolution by the combatants themselves. In my respectful opinion, this is a case in point.”
[276] Replacing the words “education” and “educational” in the above passage with “aviation safety” would render a paragraph entirely consistent with both the evidence in this matter, as well as my conclusions. There is nothing within the working relationships of Messrs Nasir Sheikh, Marsh and Richards that should be incapable of self-resolution, yet the relationships are presented as such.
[277] In my view, each of the protagonists should themselves strive for mutual accommodation, as should CASA. I am unpersuaded that this has happened to date. Instead, it seems to me, that each has been content to pitch their strongly held and very positional views to each other, their managers and me, as both being right about themselves, as well as the matter being one of their rights to be advanced and protected. Such lack of introspection and accommodation of each other will only lead to further conflict and one, two or three of the protagonists leaving CASA’s employment before they would otherwise desire to leave.
[278] The analysis I have conducted of the evidence before the Commission leads to me expressing the following material opinions;
[279] Mr Richards may not have recognised that with the introduction of Mr Nasir Sheikh to his team in 2014 that the interpersonal dynamics of the team either shifted or were likely to shift, and that it may be that decisions to manage the team according to traditional patterns may not be sustainable. In particular, he may have insufficiently recognised that Mr Nasir Sheikh may well have a point with matters that he raises and that, at the least, his point should be heard, reflected on and answered.
[280] Ms Massey, who is more senior to Mr Richards, was not cross-examined about her evidence and so it is difficult to express an opinion about her efforts to actively manage the overall situation. Even so, it is apparent that successful management of her region is likely to require a greater level of injection from a person at her level aimed at stabilising, controlling, overcoming and resolving what is demonstrably a very unsatisfactory situation.
[281] The main actors in this matter, with the exception of Ms Massey, are very experienced pilots, perhaps towards the end of their careers. The question arises of whether the conflict that has arisen is, to an extent at least, cultural in the sense that the people concerned may have come to CASA not used to having their professionally formed views subject to question by others, even by co-workers with the same professional background. After hearing all the evidence in the matter, I cannot rule out that possibility as a driver or contributor to the observed behaviours and conduct.
[282] CASA's desire to hold a performance review conversation with Mr Nasir Sheikh is reasonably held.
[283] To hold such a conversation and to impart views in the meeting, including those of a negative nature, is not bullying. It is not even performance management in the way that term is used within the Authority’s enterprise agreement, the Civilian Aviation Safety Authority Enterprise Agreement 2012 – 2014. Instead it is good management practice, and the conversation should take place at the earliest opportunity without constraint.
[284] The Commission would be critical of an employer at some later and more significant point in a disciplinary or dismissal process if such a conversation had not been held at this time or earlier. That being so, the Commission could hardly be critical of an employer which desired to hold a performance review conversation that was reasonably grounded and conducted.
[285] Mr Nasir Sheikh's avoidance of the conversation is questionable and close to being unreasonable behaviour on his part. He needs to commit to participating in such a conversation without constraints and free of endeavours to limit what is discussed. If negative feedback needs to be given to him about perceptions of his work performance, he needs to hear the feedback and respond to it openly. If he thinks the feedback is wrong, then he should say so.
[286] There is not a clear view available to the Commission of the state of the workplace culture within the team or whether other participants in the team see dysfunctional behaviours and conduct, or bullying, however described. Perhaps such information is available to CASA, through the means of a workplace culture survey or other tool.
[287] Based on the foregoing opinions, I make the following recommendation to the parties, that is Mr Nasir Sheikh, the persons named, Mr Marsh and Mr Richards, and to their employer, CASA;
[288] At this time, I do not make the recommendation that a facilitated or mediated workshop should be conducted only with three direct parties in order to discuss and agree multi-lateral behavioural change, mainly because I consider a pre-requisite would be for each to accept the findings of this decision and to use those as a baseline for corrective action. Based upon my impression of the parties both in conciliation and the hearing, I think it is unlikely at this time that each would accept my findings as the base of future discussion. If I am wrong in that view, and my findings are accepted, or mostly accepted, my view about the utility of conducting a facilitated or mediated workshop only with the direct parties in order to discuss and agree multi-lateral behavioural change would change.
[289] I further recommend that within one month of the date of this decision, Mr Nasir Sheikh should participate in a PACS meeting with Mr Richards. The meeting should be conducted in accordance with CASA’s standard procedures on such matters. There is no objective need for Mr Nasir Sheikh to have a support person in attendance on his behalf. The apprehension that critical comments may be spoken in the meeting is not unexpected for such meetings. If CASA has critical things to put to Mr Nasir Sheikh, then they should be put. Generally, and on the assumption that the matters discussed are reasonably founded and communicated, such is not bullying, however it would be reasonable management action. If a support person is to attend, the stopping and starting of the meeting as a mechanism to limit the breadth of what is discussed should not occur.
[290] I recommend that within one month of the date of this decision, Mr Richards should prepare a forward work plan for Mr Nasir Sheikh setting out as comprehensively as it can the sorts of work he may expect to do in the coming 12 months.
[291] In order to give effect to the Recommendation, each of Mr Nasir Sheikh, Mr Marsh, Mr Richards and CASA are to advise the Commission and each other in writing of whether they accept its terms. If they do, CASA should work with each to conclude the proposed written agreement within a month of the date of this decision.
[292] The Commission is available to assist the parties to the conclusion of the proposed written agreement upon request.
COMMISSIONER
Appearances:
Ms N Sim and Ms M Anthony of Professionals Australia for the Applicant.
Mr A Carter for the Respondent.
Hearing details:
2015.
Melbourne:
August 3, 4.
Final written submissions:
Applicant: 31 August 2016.
Respondent: 7 September 2016.
1 Mac v Bank of Queensland Limited & Others [2015] FWC 774 [79].
2 Fair Work Act 2009 (Cth) s.789FC(2).
3 Mac v Bank of Queensland Limited & Others [2015] FWC 774 [84].
4 Bowker & Ors v DP World Melbourne Limited & Ors [2014] FWCFB 9227, see [50], [53].
5 Re SB [2014] FWC 2104 [43].
6 Explanatory Memorandum, Fair Work Amendment Bill 2013 (Cth), 29.
7 Mac v Bank of Queensland Limited & Others [2015] FWC 774 [86].
8 Bowker & Ors v DP World Melbourne Limited & Ors [2014] FWCFB 9227 [31].
9 Re SB [2014] FWC 2104 [41], [43]
10 Mac v Bank of Queensland Limited & Others [2015] FWC 774 [89]-[90]; with reference to Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 [76].
11 Ibid [91]; with reference to Bropho v Human Rights & Equal Opportunity Commission (2004) 135 FCR 105 [79].
12 Ibid [92].
13 Re SB [2014] FWC 2104 [44]–[45].
14 Mac v Bank of Queensland Limited & Others [2015] FWC 774 [95].
15 See Exhibit A15, Applicant’s Outline of Submissions, at [10], in respect of the allegations against Mr Marsh; and [14], in respect of the allegations against Mr Richards.
16 Exhibit A1, Witness Statement of Rizwan Nasir Sheihk, [2]–[4].
17 Exhibit R5, Witness Statement of Peter Marsh, [1].
18 Ibid [2]–[6].
19 Exhibit A1 Attachment RS-2.
20 Ibid [13]-[15].
21 Exhibit R5 [21].
22 Ibid [22].
23 Ibid [29].
24 Ibid [28]
25 Ibid [31].
26 Exhibit A1 Attachment RS-02.
27 Exhibit R7, Witness Statement of Owen Richards, [19].
28 Ibid [20]–[21].
29 Ibid [22].
30 Ibid [23].
31 Exhibit R5 [32].
32 Exhibit A1 [18].
33 Exhibit R5 [38].
34 Exhibit R3, Witness Statement of Judith Keogh, Attachment JK–7A 12.
35 Ibid Attachment JK-7A 13.
36 Ibid Attachment JK-7A 12.
37 Ibid Attachment JK-7A 12.
38 Transcript PN 759.
39 Ibid PN 1205.
40 Exhibit A1 [29]-[33].
41 Ibid [36]-[37].
42 Exhibit R5 [49].
43 Transcript PN 1346.
44 Exhibit R5 [51].
45 Ibid [49].
46 Exhibit A1 [48].
47 Exhibit R5 [71].
48 Exhibit R3 Attachment JK–7A 22.
49 Ibid Attachment JK-7 11.
50 Exhibit A1 [91].
51 Exhibit R5 [122].
52 Transcript PN 1625.
53 Ibid PN 1626-1627.
54 See, for example, Exhibit R3 Attachment JK-7A 10.
55 Harris v WorkPac Pty Ltd [2013] FWC 4111 [73].
56 Exhibit A1 [124(a)].
57 Ibid Attachment RS-25.
58 Exhibit R18, Witness Statement of Shawn Ottway, [29]-[32].
59 Exhibit A15, Outline of Applicant's Submissions, [10(b)(i)]; Applicant's Closing Submissions [15(b)(i)].
60 Transcript PN 730.
61 Exhibit R5 [21].
62 Macquarie Dictionary, Fifth Edition, Sydney, 2009, p.1526.
63 Exhibit A1 [37].
64 Exhibit R5 [48].
65 Exhibit A1 [44].
66 Exhibit R3 Attachment JK-7 12.
67 Transcript PN 196.
68 Ibid PN 350–356.
69 Ibid PN 335-337.
70 Exhibit R5 [58]-[63].
71 Exhibit R3 Attachment JK 7A 15.
72 Transcript PN 1185.
73 Ibid PN 1216.
74 Ibid PN 1226.
75 Ibid PN 1193.
76 Ibid PN 1229–1231.
77 Exhibit R2, Witness Statement of Anthony Aylett, [21]-[22].
78 Exhibit R7 [42 (a)].
79 see Transcript PN 2122.
80 Exhibit R9, Witness Statement of Derek Fox, [16].
81 Transcript PN 2167.
82 Ibid PN 1433.
83 Ibid PN 1439–1441.
84 Exhibit A1 [50].
85 Exhibit R5 [76]–[77].
86 Exhibit A1 Attachment RS-08.
87 Exhibit R3 Attachment JK-7A 15; Exhibit R5 [82] and Attachment PM-17.
88 Exhibit A1 [49].
89 Ibid Attachment RS-09.
90 Ibid Attachment RS-09.
91 Exhibit R5 [80].
92 Exhibit A1 Attachment RS-10.
93 Ibid Attachment RS-10.
94 Ibid [73].
95 Ibid [63]-[72].
96 Transcript PN 470–473.
97 Exhibit R5 [80].
98 Ibid [81].
99 Exhibit R4, Witness Statement of Michelle Massey, [17].
100 Ibid [18].
101 Exhibit R5 [83]-[87].
102 Ibid [88].
103 Transcript PN 1566–1574.
104 Exhibit R3 Attachment JK-7A.
105 Exhibit R11, Witness Statement of Bruce Reilly, [13].
106 CASA Response from an employer/principal, Form F73, Attachment 4.
107 Exhibit A1 [55].
108 Ibid Attachment RS-09
109 Ibid Attachment RS-08.
110 Ibid Attachment RS-09.
111 Ibid Attachment RS-09.
112 Ibid [59].
113 Ibid Attachment RS-10.
114 Exhibit A15 [10(d)].
115 Exhibit A1 [82]-[88].
116 Exhibit R5 [105].
117 Transcript PN 545–553.
118 Exhibit R5 [106].
119 Ibid [107]–[109].
120 Exhibit A1 [45].
121 Ibid Attachment RS-07.
122 Exhibit R5 [64]-[68].
123 Exhibit R2 [11]-[16].
124 Exhibit R9 [20]-[21].
125 Exhibit A1 [92].
126 Ibid Attachment RS-17.
127 Exhibit R5 [126].
128 Exhibit A1 [140]-[142].
129 Exhibit R5 [130].
130 Ibid [133].
131 Exhibit R7 [117].
132 Ibid Attachment OR-24.
133 Exhibit R18 [47]-[48].
134 Exhibit A12.
135 Transcript PN 132–141.
136 Amended Application, Form F72, dated 20 June 2016, 9.
137 Exhibit R7 [1]–[7].
138 Exhibit A1 [122].
139 Exhibit R7 [87].
140 Exhibit A1 [123].
141 Exhibit R7 [62].
142 Exhibit A1 Attachment RS–21.
143 Ibid Attachment RS-21.
144 Transcript PN 2113.
145 Ibid PN 2120–2125.
146 Exhibit A1 [96]; Transcript PN 87.
147 Transcript PN 1902.
148 Exhibit A1 Attachment RS–24.
149 Exhibit R7 [88].
150 Ibid [24].
151 Ibid [63].
152 Ibid [63]–[64].
153 Exhibit A1 [143]–[146].
154 Exhibit R7 [118]–[119].
155 Ibid Attachment OR-25.
156 Ibid Attachment OR-25.
157 Ibid [120].
158 Transcript PN 2103.
159 Ibid PN 2088-2089.
160 Exhibit A1 [138], as amended 22 September 2016.
161 Exhibit R7 [111]–[112].
162 Exhibit A1 [139].
163 Exhibit R7 [113].
164 Applicant's Closing Submissions [17(c)(i)].
165 Exhibit R3 [16].
166 Ibid [17].
167 Exhibit R7 [30].
168 Ibid [60].
169 Exhibit A1 [98]–[99].
170 Ibid [100].
171 Exhibit R7 [64]-[65].
172 Ibid Attachment OR-12.
173 Ibid Attachment OR-12.
174 Exhibit A1 [100]–[120].
175 Exhibit R7 Attachment OR-12.
176 Exhibit A1 [98].
177 Exhibit R7 [79].
178 Ibid [63].
179 Exhibit A1 Attachment RS-20.
180 Ibid Attachment RS-15.
181 Exhibit A1 [113(b)].
182 Transcript PN 2037.
183 Exhibit A1 Attachment RS-15.
184 Exhibit R7 [83].
185 Exhibit A15 [14(c)(iii)].
186 Applicant’s Closing Submissions [17(c)(iii)]
187 Exhibit A1 [113(c)].
188 Exhibit R7 [78].
189 Ibid [64].
190 Exhibit A1 [124(a)].
191 Exhibit R7 Attachment OR-16.
192 Ibid Attachment OR-16.
193 Exhibit A17 [28]-[33].
194 Exhibit A1 Attachment RS-25.
195 Ibid [128]–[137].
196 Exhibit R7 [99].
197 Ibid [100].
198 Ibid [102].
199 Ibid [103]-[105].
200 Ibid [15]–[16].
201 Ibid [36].
202 Ibid [42(a)].
203 Ibid [47]-[48].
204 Transcript PN 87.
205 Exhibit A1 [136].
206 Ibid [140]–[142].
207 Exhibit R7 [117].
208 Exhibit R18 [48].
209 Exhibit A1 [128]–[137].
210 Ibid [147]-[148].
211 Transcript PN 2089.
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