| FWC 8223
|FAIR WORK COMMISSION
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
E & S Trading Co (Discounts) Pty Ltd T/A E & S Kitchen, Bathroom Laundry; Andrew Blake; Mike Bishop; Greg Lake
MELBOURNE, 18 NOVEMBER 2016
Application for an FWC order to stop bullying.
 Ms Rebecka Edwards has worked as a Sales Consultant with E & S Trading Co (Discounts) Pty Ltd T/A E & S Kitchen, Bathroom, Laundry (“E & S Trading”) since February 2014. She is located at the Moorabbin store, which has around 22 employees, with 18 of those employed as Sales Consultants. On 27 April 2016 Ms Edwards made an application to the Fair Work Commission (“the Commission”) alleging she had been bullied at work, citing at the time three members of the management team, being the Store Manager, Mr Andrew Blake, the Operations Manager, Mr Mike Bishop, and the General Manager, Mr Greg Lake. Ms Edwards also foreshadowed that she intended to provide further materials about similar allegations involving various Sales Consultants at the Moorabbin store. She subsequently confirmed that these three additional employees were Mr Graham Colvin, Mr Chris Philipas and Ms Barbara Baker.
 The matter was dealt with in conference on 27 May 2016, but was unable to be resolved. Ms Edwards subsequently requested that the application be dealt with by way of arbitration. Ms Corina Dowling from the FCB Group was given permission to appear on behalf of E & S Trading under s.596(2)(a) of the Act as the matter involved a degree of complexity and her involvement might enable it to be dealt with more effectively. Ms Edwards appeared on her own behalf.
 E & S Trading also indicated at the outset of the proceedings that one of the named individuals, Mr Graham Colvin, is no longer employed by the business and therefore there was no risk of Ms Edwards being bullied by him in the future. It was accordingly requested that the application made in regard to him be dismissed. Ms Edwards accepted this request, although noting that this did not detract from her claims that she had been bullied by various people at the Moorabbin store over a period of time.
 Ms Edwards also confirmed at the commencement of the proceedings that she had been off work due to medical incapacity since 8 April 2016, and has not returned to work since that time.
 Section 789FC of the Fair Work Act 2009 (Cth) (“the Act”) relevantly states:
“789FC Application for an FWC order to stop bullying
(1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.”
 Section 789FD of the Act continues to deal with “When is a worker bullied at work?” It relevantly states:
“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.”
 Section 789FF of the Act continues to deal with the circumstances in which the Commission may make orders to stop bullying. It relevantly states:
“789FF FWC may make orders to stop bullying
(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 is considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual group.”
 Therefore, has Ms Edwards been bullied at work in accordance with s.789FD and, if so, is it appropriate for any orders to be made under s.789FF to prevent her from being bullied at work in the future?
 The material provided by Ms Edwards in conjunction with her application makes reference to various events that she submits have occurred since she commenced working in the Moorabbin store in February 2014. She indicated at the outset that there were a group of employees in the store whose behaviour was bad. She said this situation improved to some extent following the appointment of a new Store Manager, Mr Andrew Blake, in December 2014, however, over time he began to develop closer relationships with certain employees and, in her view, treated them more favourably as a consequence.
 Ms Edwards continued to indicate that in November last year she witnessed an incident involving staff members in the reception area, and subsequently forwarded a complaint about the incident, by email, to the Store Manager. She said she was then asked to meet with the Operations Manager, Mr Mike Bishop, to discuss the complaint in early December 2015.
 She said two staff members have since been dismissed because of issues to do with bullying behaviour, however, she has continued to be targeted by three other sales consultants, Mr Graham Colvin, Mr Chris Philipas, and Ms Barbara Baker. She also said that a number of complaints she has made about these employees have either not been properly investigated, or investigated at all.
 Her submissions continue to provide more specific information about the November 2015 incident, and the subsequent discussions she was involved in with Mr Greg Lake and Mr Mike Bishop. She said that following the incident an investigation was carried out by Mr Nick Tindley from FCB Group. She then met with Mr Lake and Mr Bishop on 2 December 2015 and was told, during the course of that discussion, that one of the employees had made allegations of bullying by her. Ms Edwards said she was “shattered” by the outcome of the meeting, and was not able to be at work for several days. She also sent an email to the Managers confirming how she felt about what had occurred.
 On 9 December Ms Edwards said she attended a mediation conducted by Mr Tindley with another employee, Ms Krystal Grobelny, who was also involved in the incident. She returned to work on Friday, 11 December 2016, but was then asked to attend another meeting, this time involving the Store Manager, Mr Andrew Blake, at which she was given a “Final Warning” letter. She continued to indicate that she was not provided with any opportunity at this meeting to discuss or take issue with what was contained in the warning letter. She also said she was not told prior to this meeting that it was to be a disciplinary meeting, and was not given the opportunity to have a support person present in the discussions.
 She said she later asked the Store Manager why her complaints had not been investigated in the same way as issues raised by other employees, and why other Sales Consultants had not received warnings, given the numerous complaints she had made about their bullying behaviour toward her. She said she believed this represented “systemic bullying of myself.” 1
 She said she was subsequently involved in further discussions with Mr Bishop about her concerns, and the complaints she had made, but was simply reminded, in response, about the previous warning she had been given. However, she also said she left this discussion with the understanding that her complaints about other employees, and their behaviour toward her, would be followed up.
 Ms Edwards also provided further information about her concerns about the behaviour of Mr Blake. She said that when he was first appointed in December 2014 he appeared to be a “refreshing change from the previous store manager.” 2 However, over time he formed a close bond with some employees, in particular, and appeared to treat them more leniently. Ms Edwards said she, and other employees, raised various complaints about the behaviour of some of these employees with Mr Blake, but they were not provided with information about how these complaints were being handled.
 Ms Edwards continued to indicate that after returning from a period of annual leave on 19 December 2015 she again reported several further incidents of bullying behaviour. These included statements made by Ms Baker to other employees that Ms Edwards had “egged” her car, claims that Mr Colvin had been involved in taking sales from her, and further allegations made about her by Ms Baker. She also said that on a more recent occasion Mr Philipas had accused her of spilling coffee beans in the kitchen area in the store. She said Mr Blake again acted in these circumstances by favouring other employees at her expense.
 Ms Edwards also provided a response to the witness statements of the named employees. She submits, at the outset, that the collective behaviours of those involved constituted bullying behaviour, and contributed to her present feelings of being victimised and discriminated against. She also submits the concerns she raised in the past with relevant Managers have not been properly investigated. She also submits she has been singled out and treated differently, citing for example, breaches of company policy by other employees that have not been properly investigated. She refers in this context to Mr Colvin and Ms Baker taking sales from her, without being dealt with in an appropriate manner. She also submits that none of her complaints about the behaviour of other employees have been investigated in the same way as the scrutiny and investigation of her behaviour.
 She submits that this has occurred despite the fact that the investigation carried out by Mr Tindley revealed that the behaviour of several staff members warranted disciplinary action. She also states, in regard to Mr Philipas, that he has not provided any explanation for the allegations made about his behaviour, other than to deny it occurred. She also submits his statement that she has been the “sole common denominator in every issue/negative event” 3 in the store provides an example of the discrimination she has faced, and his attempts to justify the behaviour of others.
 She also takes issue with the complaint made by Mr Philipas to Mr Blake, following an incident involving some coffee beans being spilt in the kitchen at the store. She indicated in cross-examination that she had not raised her voice in those discussions, and it was instead Mr Philipas who was yelling and screaming, and verbally attacking her. She also submits Mr Colvin acted to prevent her getting sales, and his behaviour was overlooked by Mr Blake. She cites this as a further example of the divide in the store, and submits her complaints about these issues were simply treated as trivial in nature and ignored “therefore perpetuating the behaviours.” 4
 Ms Edwards continued to submit that Ms Baker has also joined the “haters,” 5 and given “flimsy accounts”6 of the incidents raised by her. She also submits that Ms Baker has not denied she told other staff members that Ms Edwards had egged her car. She also said Ms Baker had used the commission structure rules to suit herself, and did not adhere to these rules when she was absent on annual leave, and took sales away from her in this time, telling her later that “nobody owns a customer.”7
 Ms Edwards also stated that Ms Baker’s allegations that she had acted in a confronting way with other employees were without foundation, and had not been substantiated. She also submits that, in any case, she had seen Ms Baker confront other Sales Consultants in the same way.
 Ms Edwards indicated, in conclusion, that there has been a collective failure by the business to take responsibility for the bullying behaviour in the Moorabbin store. She submits that the policies in place about workplace bullying were never referred to or reinforced in the store. She also made reference to the policy document, and submits that a number of examples of bullying behaviour referred to in sub clause 3.7 of the document, were behaviours that were regularly exhibited in the store by other employees.
 She also states that she believes it is likely the employees she has identified as perpetrators of bullying behaviour will continue to act in the way they have behaved previously.
 Ms Edwards also indicated, in response to a question from the Commission, that in terms of any outcome she seeks from the proceedings she ultimately wants to be in a position where she feels protected at work, and when she makes a complaint, or has issues that need to be dealt with, they will be treated seriously, and treated in the same way as complaints and issues raised by other employees. She also said she wanted the bullying policies that the business has in place to be applied and enforced.
 She concluded by indicating in her oral submissions that the collective behaviours of others in the workplace had made her feel intimidated and “ganged up” 8 upon. She believes this behaviour was orchestrated, although in expressing this view she was referring particularly to the other Sales Consultants.
 Ms Edwards also said that even though some of the employees she had referred to were no longer employed at the Moorabbin store, the behaviour of the remaining employees had become more offensive, partly because she was somehow blamed because other employees had moved on and were no longer working at the store.
 In regard to the behaviour of the three Managers Ms Edwards indicated that her “biggest grievance” 9 in this context was about the way in which the warning was given to her. She said there was no prior notice that the meeting with Mr Blake was to be a formal disciplinary meeting, and she was not provided with any “opportunity to challenge the warning.”10 There was also no “review date”11 provided about the duration of the warning. She also said she was told that if she had any further complaints or issues these were to be directed to the Store Manager. However, Ms Edwards said this did not resolve her concerns because her previous experience had been that her complaints were ignored, or she was told they were trivial and not worth investigating.
 She said she was also concerned that the disciplinary action took the form of a final warning, in circumstances where she had not previously been disciplined or counselled. This left her in a difficult and potentially vulnerable situation, in circumstances where she believed her issues and concerns with other employees were not being taken seriously.
 An outline of submissions was provided in response to the application by E & S Trading, which makes reference to a number of the allegations made about the named individuals and indicating, in particular, that the action taken on behalf the business in regard to Ms Edwards constituted “reasonable management action taken in a reasonable manner.” 12 The submission also states at the outset that in dealing with the application the Commission needs to be satisfied that, when viewed objectively, it would be reasonable for Ms Edwards to have the view she had been bullied at work. E & S Trading submits, in response, that a reasonable person would not be able to conclude that conduct amounting to bullying at work had occurred.
 In dealing with the allegations made about Mr Philipas E &S Trading submits there is no evidence to suggest he was part of a group who “ganged up on” Ms Edwards, and the incident involving the spilled coffee beans did not constitute bullying at work.
 In regard to the allegations made about Ms Baker it submits that the business is a retail sales business and its Sales Consultants are inevitably “highly incentivised” 13 and disputes about sales accordingly occur. However, it continues to submit that Ms Edwards has not pursued the formal sales dispute process that exists in the store, and this works against any conclusion Ms Baker has taken sales from her. It also submits that the fact Ms Baker has made various allegations about Ms Edwards does not necessarily lead to the conclusion Ms Baker has been involved in bullying at work. If this were the case similar claims could be made about Ms Edwards, given the present application.
 It also submits there is no evidence to support the allegations of favouritism made about Mr Blake and claims about poor management practices, and a failure to investigate complaints, do not necessarily lead to the conclusion a person has been bullied at work.
 E & S Trading also submits the actions of Mr Bishop and Mr Blake, and the warning given to Ms Edwards in December last year, constitute “reasonable management action carried out in a reasonable manner.”
Mr Greg Lake
 Mr Greg Lake is the General Manager of E & S Trading, and has been in that position since September 2003. He said that after receiving a complaint from Ms Edwards in November 2015, which he described as “very serious,” 14 he instructed the other employee to be suspended while an investigation was carried out. He said he was also aware of “employee conflict and generally poor morale”15 at the Moorabbin store, and decided to instruct an external provider, FCB Group, to conduct an investigation into the allegations surrounding the events on 15 November 2016, as well as any other inappropriate conduct that might be occurring in the store. He said a report from the investigation was subsequently provided to him on 26 November 2016.
 He said it indicated there was no evidence of bullying at the store, but there were clear relationship issues between employees, particularly involving Ms Edwards and Ms Grobelny. The report recommended a mediation be conducted with these employees.
 Mr Lake said he then met separately with both Ms Edwards and Ms Grobelny to discuss the report, and in his discussions with Ms Edwards, she accepted she had a significant relationship issue with the other employee and agreed to take part in the proposed mediation session. He also rejected the suggestion by Ms Edwards that in those discussions he had agreed with and accepted her version of events about the incident in the reception area.
 He said that following the mediation it was decided there was a need “to send the strongest message possible that inappropriate conduct in the workplace was not acceptable,” 16 and a decision was made to issue warnings to both employees. It was also decided, given the seriousness of the behaviour, that they would both be final warnings. He said the other employee was subsequently terminated in February 2016, however, this incident was unrelated to anything involving Ms Edwards.
 He also stated that a further complaint was made by another employee about Ms Edwards on 4 April 2016, and a meeting was held with her on the following day to discuss this issue. However, she had since been off work on sick leave and the matter had not been taken further.
Mr Mike Bishop
 Mr Mike Bishop is the Retail Operations Manager for E & S Trading and is responsible for the day-to-day running of its eight retail stores. He said he was involved in the meeting with Ms Edwards on 2 December 2015, and states she was clearly upset at the conclusion of the meeting, and seemingly unable to understand her part in the issues at the Moorabbin store. He said it was decided to give both employees a final warning because they were not prepared to take responsibility for their actions, or to change their behaviours. He denied a statement attributed to him by Ms Edwards that “we will never speak of the incident again,” 17 because he was aware at the time that that both employees were likely to be subject to further disciplinary action.
 He said he was subsequently contacted by Ms Edwards in March 2016 by telephone. He said various matters were raised in this discussion including the final warning, the Assistant Manager role at the Moorabbin store, and her claims that Mr Colvin, Mr Philipas and Ms Baker “were trying to get her into trouble.” 18 He said the discussions concluded by him indicating to Ms Edwards that he was happy for her to call him at any time.
 He was subsequently informed about an incident involving Mr Philipas and Ms Edwards on 3 April 2016, and a meeting with Ms Edwards took place on 5 April 2016 to discuss that situation. He said Ms Edwards continually brought up issues in this meeting about other employees that had been dealt with previously, and were not relevant to the current incident. Mr Bishop’s statement also attached some detailed notes that were taken of the time of his discussions involving Ms Edwards.
Mr Andrew Blake
 Mr Andrew Blake is now the Store Manager at the Moorabbin store and has been in that position since December 2014. He said he initially believed he had a good relationship with Ms Edwards but, after being issued with a warning in December last year, she became withdrawn and focused on other employees she believed were doing the wrong thing.
 He said Ms Edwards often made mention of her co-workers, but he did not consider these to be formal complaints that required investigation. He also said Ms Edwards categorised her co-workers into two groups, being “bad people” and “good people.” 19 He also said he had tried throughout to support and encourage her and was upset about the allegations she had now made about him. He also denied any allegations of favouritism in the store and said these allegations “are completely unfounded.”20
 He also said he was off work on the day the incident occurred in the reception area in November 2015 and his only involvement was in signing the warning letter and issuing it to Ms Edwards, as directed by Mr Bishop. He also said he never told Ms Edwards the warning would expire after a period of 3 months.
 He said there had also been numerous complaints about the state of the coffee machine in the kitchen at the store, and all employees were directed to clean up after using the machine. He said he walked into the kitchen on 2 April 2016 and found that coffee beans had been spilled. He said he was told by Mr Philipas on the next day that Ms Edwards had been very aggressive towards him after he had raised the issue about the state of the kitchen. He said a further meeting was then held with Ms Edwards on the following day to understand her position in relation to the incident, but she continually tried to change the subject, and wanted to discuss the conduct of other employees, instead of dealing with the particular issue involving Mr Philipas.
Mr Nick Tindley
 Mr Nick Tindley is the Executive Manager of HR Consulting and Advisory Services for the FCB Group. He said he received instructions from Mr Lake on 17 November 2015 to conduct investigations into allegations of bullying at the Moorabbin store. He said he subsequently conducted interviews at the store on 20 November 2015 with each of the employees involved and then prepared a report, which included recommendations, based upon his investigation.
 He said he concluded that the allegations of bullying were not substantiated, but he did recommend that a mediation session be held with some of the employees, because of the relationship issues that he had observed. This took place on 9 December 2015. He said he then recommended to Mr Lake that the employees be given a warning because of the significance of the incident, and his concerns that otherwise the conduct and behaviour was likely to continue.
Ms Barbara Baker
 Ms Barbara Baker is a Sales Consultant and has worked in that role at the Moorabbin store since 2011. She said that after Ms Edwards commenced working at the store she endeavoured to be friendly with her, and did have dinner at her home on two occasions. However, she subsequently found that she did not approve of some of Ms Edwards’ “lifestyle choices,” 21 and accordingly decided she no longer wanted to engage socially with her.
 Ms Baker denied ever making a bullying complaint against Ms Edwards, but did make complaints to the Store Manager about her talking about her behind her back. She also indicated she believed other comments made about her by Ms Edwards were belittling, and sent an email to her asking her to keep those comments to herself. She also said she observed the incident on 15 November 2015 and was asked to provide a statement about what occurred to the Store Manager.
 Ms Baker also denied she had ever accused Ms Edwards of “egging her car,” although she did respond to police enquiries asking whether any of her colleagues at work lived in her local area. She said Ms Edwards was one of four people she nominated in this context, but she did so without accusing anyone, and was instead simply responding to the enquiry from the police.
 Ms Baker also denied she took sales from Ms Edwards while she was on annual leave, and believed this complaint might have arisen because she did deal with a customer who had dealt previously with Ms Edwards. She said she served that customer in the store on one occasion, in circumstances where the customer did not specifically ask for Ms Edwards to serve him.
Mr Chris Philipas
 Mr Chris Philipas also works as a Sales Consultant at the Moorabbin store and has been in that position since July 2012. He denied being part of any group “ganging up” 22 against Ms Edwards. He also denied other allegations made about him, including that he had ever hidden any of her personal possessions at work.
 He said he was in the lunchroom on 2 April 2016 after the coffee beans had been spilt around the coffee machine. He asked other employees, including Ms Edwards, if they were aware of what had happened. He said Ms Edwards responded aggressively indicating “Yeah, it was me! I was going to clean it up later.” 23 He said he was surprised by how aggressive her response was, but considered that to be the end of the matter. He said he was subsequently confronted by Ms Edwards on the next day in front of customers in the store. He said he was shocked by her behaviour, and decided to call the Store Manager to inform him about what had occurred.
 E & S Trading concluded by indicating that the submissions and evidence relied on by Ms Edwards should be treated with a degree of caution. In its submission she has “assumed the worst motives and circumstances and then looked for factors to support those assumptions.” 24 It also submits that the evidence and submissions do not establish that she has been subjected to repeated unreasonable behaviour. It also submits the claims made in respect of Mr Philipas and Ms Baker are, at worst, of limited significance and cannot be construed as constituting workplace bullying. It also submits that if Ms Edwards had concerns about Ms Baker taking sales from her she did nothing to pursue those concerns through the established processes in place in the store.
 It also rejects any suggestion that Ms Baker’s email request to Ms Edwards to stop making comments about her to others can be said to constitute workplace bullying. It also submits that the evidence does not support Ms Edwards’ allegations about Mr Blake showing favouritism by failing to properly investigate complaints. It submits that, in speaking to Ms Edwards on 5 April 2016, Mr Blake was simply responding to an issue raised with him by Mr Philipas. It also notes that in any case “There was no disciplinary action taken at the end of that meeting.” 25
 However, E & S Trading does acknowledge that there was some dysfunction at the time among the staff working at the Moorabbin store, and it was this understanding, in part, that led to an investigation involving an external consultant. It also submits that the actions of Mr Bishop and Mr Lake were “reasonable management action taken reasonably.” 26 It also rejects the suggestion that nothing has been done to deal with the issues in the store, and notes that there have been various investigations carried out, warnings issued, and some employees are no longer working at the store. It also submits, in this context, that much of the material referred to by Ms Edwards concerns employees who are no longer employed at the Moorabbin store.
 Ms Edwards is clearly upset and distressed by what she submits has occurred in the Moorabbin store, particularly during the past 12 months. While she was able to capably represent herself during the conduct of the proceedings in the Commission, she submits her recent experiences at work have caused her to be anxious and distressed to the extent that, at this point, she does not feel able to return to work. She also submits this is due to the fact she has been bullied at work by other Sales Consultants, and by various Managers.
 I have no reason to doubt or take issue with Ms Edwards’ current state of mind, and how she feels, or why she believes this has occurred. However, at the same time those circumstances do not, of themselves, establish that she has been bullied at work. I now turn to deal with her application against the background of the legislation, and those authorities that have considered how those provisions should be applied, together with the submissions and evidence provided by the parties.
 As indicated at the outset, s.789FF establishes three pre-requisites for the exercise of power to make anti-bullying orders. It requires, firstly, that an employee has made application under s.789FC. Secondly, the Commission must be satisfied that the Applicant has been bullied at work by an individual or group of individuals. The Commission must, finally, be satisfied there is a risk the Applicant will continue to be bullied at work by the individual, or group of individuals.
 There is clearly no dispute in the present matter that Ms Edwards has made application under s.789FC. However, an application made under that section must also be one in which the employee “reasonably believes that he or she has been bullied at work.” It is clear from these words that not only must the belief be actually and genuinely held by the employee but, in addition, it must be reasonable in the sense that it is able to be supported or justified on an objective basis.
 The second prerequisite requires the Commission to be satisfied that the Applicant has been bullied at work by an individual or a group of individuals. The expression “bullied at work” is defined in s.789FD and requires that an individual, or a group of individuals, “repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member, to the extent that the behaviour creates a risk to health and safety.” 27 In addition, s.789FD also makes clear that it does not apply to “reasonable management action carried out in a reasonable manner.”28
 The critical requirement in the context of the present matter concerns the meaning of “repeatedly behaves unreasonably.” This requirement was considered in some detail by Vice President Hatcher in the matter of Amie Mac v Bank of Queensland Limited; Michelle Locke; Matthew Thompson; Stacey Hester; Christine Van Den Heuvel; Jane Newman  FWC 774, which was handed down in February last year.
 The Vice President reviewed the requirements of s.789FD in some considerable detail and came to the following conclusions about what “repeatedly behaves unreasonably” requires:
“ The requirement for repeated unreasonable behaviour is clearly a core element of Part 6-4B. The Explanatory Memorandum to the Fair Work Amendment Bill 2013 through which Part 6-4B was enacted discloses that the definition of bullying at work in s.789FD, including this element, reflected a recommendation for such a definition contained in the report of the House of Representatives Standing Committee on Education and Employment “Workplace Bullying - We just want it to stop”. In referring to that report, the Explanatory Memorandum said:
“109. The Committee went on to note that ‘repeated behaviour’ refers to the persistent nature of the behaviour and can refer to a range of behaviours over time and that ‘unreasonable behaviour’ is behaviour that a reasonable person, having regard to the circumstances may see as unreasonable (in other words it is an objective test). This would include (but is not limited to) behaviour that is victimising, humiliating, intimidating or threatening.”
 In Re SB , the Commission (Hampton C) discussed the requirement for repeated unreasonable behaviour in the following terms:
“ Having regard to the approach urged by the authorities, the concept of individuals ‘repeatedly behaving’ unreasonably implies the existence of persistent unreasonable behaviour but might refer to a range of behaviours over time. There is no specific number of incidents required for the behaviour to represent ‘repeatedly’ behaving unreasonably (provided there is more than one occurrence), nor does it appear that the same specific behaviour has to be repeated. What is required is repeated unreasonable behaviour by the individual or individuals towards the applicant worker or a group of workers to which the applicant belongs.
 ‘Unreasonable behaviour’ should be considered to be behaviour that a reasonable person, having regard to the circumstances, may consider to be unreasonable. That is, the assessment of the behaviour is an objective test having regard to all the relevant circumstances applying at the time.”
 I respectfully agree with those statements, but I would add three further observations about the interpretation and practical application of the expression “repeatedly behaves unreasonably” in s.789FD(1)(a). First, the expression falls within a definition provision. The function of a legislative definition, as was pointed out by McHugh J in Kelly v R , is not to enact substantive law, but to provide aid in construing the statute. A definition provision is therefore not to be interpreted in isolation and thereby given a meaning which negates the evident policy or purpose of a substantive enactment. Part 6-4B has the evident purpose of establishing a mechanism by which the bullying of workers at work may be stopped. In interpreting, and applying, the expression “repeatedly behaves unreasonably” as it appears in s.789FD(1)(a), the concept of repeated unreasonable behaviour is not to be approached in a manner which divorces it from that purpose. The subject matter is bullying at work, and that must be borne steadily in mind in any consideration as to whether particular behaviours are unreasonable for the purpose of s.789FD(1)(a). A consideration of unreasonable behaviour which loses sight of the objective and subject matter of Part 6-4B may lead to the provisions not achieving their intended purposes, or being used for a purpose that was not intended.
 The second observation is that unreasonableness and its converse, reasonableness, are familiar legal concepts applicable in a range of diverse contexts. In Giris Pty Ltd v Federal Commissioner of Taxation Windeyer J said: “It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law...”. Where, in an anti-bullying case such as this one, the requisite repeated unreasonable behaviour towards the workers is said to be constituted by or include unreasonable discretionary managerial decisions directed to that worker, some useful guidance may be obtained in assessing whether the definitional standard in s.789FD(1)(a) is met from decisions concerning judicial review of administrative discretionary decision-making. In Minister for Immigration and Citizenship v Li the High Court considered the standard of unreasonableness applicable to such decision-making. The plurality (Hayne, Kiefel and Bell JJ), in considering the well-known formulation of unreasonableness stated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation, said that the legal standard of unreasonableness “should not be considered as limited to what is in effect an irrational, if not bizarre, decision - which is to say one that is so unreasonable that no reasonable person could have arrived at it”. They concluded their analysis by saying: “Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”. That formulation provides a useful yardstick for the application of the provision in a case such as this one.
 The third observation is that in order for conduct to be reasonable, it does not have to be the best or the preferable course of action. In Bropho v Human Rights & Equal Opportunity Commission , in interpreting the word “reasonably” as it appeared in s.18D of the Racial Discrimination Act 1975 (Cth), French J (as he then was) said:
“ ... It imports an objective judgment. In this context that means a judgment independent of that which the actor thinks is reasonable. It does allow the possibility that there may be more than one way of doing things ‘reasonably’. The judgment required in applying the section, is whether the thing done was done ‘reasonably’ not whether it could have been done more reasonably or in a different way more acceptable to the court.”
 In considering whether there has been unreasonable behaviour by an individual or group of individuals, it will of course be necessary for the Commission to determine whether the alleged behaviour actually occurred. Once the Commission has made the necessary findings of fact about the behaviour, it can then determine whether the behaviour was unreasonable.
 The final element in the s.789FD(1) definition is that the relevant behaviour “creates a risk to health and safety”. In relation to this element, I respectfully agree with the following analysis of Commissioner Hampton in Re SB , which is supported by authorities (cited by the Commissioner) concerning analogous provisions in NSW workplace health and safety legislation:
“ The unreasonable behaviour must also create a risk to health and safety. Therefore there must be a causal link between the behaviour and the risk to health and safety. Cases on causation in other contexts suggest that the behaviour does not have to be the only cause of the risk, provided that it was a substantial cause of the risk viewed in a common sense and practical way. This would seem to be equally applicable here.
 A risk to health and safety means the possibility of danger to health and safety, and is not confined to actual danger to health and safety. The ordinary meaning of ‘risk’ is exposure to the chance of injury or loss. In the sense used in this provision, the risk must also be real and not simply conceptual.”
 It is clear that it is not necessary for an applicant to demonstrate that he or she has suffered an actual detriment to health or safety - that is, actual illness or injury - in order to demonstrate the necessary risk. However, the existence of such an illness or injury may be relied upon as a manifestation of the necessary risk, provided of course that the requisite causal link to the unreasonable behaviour at work has been established.” 29
 I have endeavoured to apply the approach adopted by Vice President Hatcher to the circumstances involved in the present matter.
 The various matters relied upon by Ms Edwards, in support of her application, have been referred to already and are not restated in detail now. They involve, on the one hand, claims related to particular situations and circumstances, and other claims which involve what might be described as patterns of behaviour. They can be summarised on the following basis:
 The first thing that can be noted in regard to a number of these matters is that they are claims that are not supported or corroborated by other sworn evidence. In addition, they are claims that are denied or refuted by the evidence of other witnesses.
 For example, the evidence of Mr Blake is that since taking on the role of Store Manager at the Moorabbin store in late 2014 he has endeavoured to support and encourage Ms Edwards, and was surprised and disappointed by her claims he had been involved in bullying behaviour toward her. He also rejected the allegations about favouring certain employees in the store, and treating them more leniently. He also rejected the claim he had failed to investigate legitimate issues and complaints raised by Ms Edwards about other staff members. He also rejected any suggestion there was anything sinister or premeditated in his meeting with Ms Edwards in December 2015, when she was given a final warning letter, and said he was simply acting in accordance with the direction he had been given by Mr Bishop. Mr Blake also indicated that he had simply raised the matter to do with the spilled coffee beans in the kitchen with Ms Edwards because he was acting on a complaint received from another employee.
 Secondly, in terms of some of the matters raised Ms Edwards appears to have identified behaviour and actions that she was also participated in, such as the various emails sent to and received from Ms Baker. In addition, the fact these emails were sent does not of itself constitute evidence of workplace bullying.
 Ms Baker also provided an explanation for the issue about linking Ms Edwards to the incident involving the “egging” of her car, when she indicated she was simply responding to an enquiry from the police about other work colleagues who lived in her area. She said she responded to the police by simply including Ms Edwards as one of four employees who came within this category.
 This is not to suggest that Ms Edwards does not have a genuine belief about the nature of the various matters referred to above, and what motivated that behaviour. However, the sharply contrasting evidence provided by her, and by each of these different witnesses, makes it very difficult to conclude on any objective basis that these individuals have repeatedly behaved unreasonably towards Ms Edwards in a way that can be said to constitute workplace bullying.
 The circumstances and the aftermath of the November 2015 incident in the reception area also loom large in the context of Ms Edwards’ application. She is evidently particularly concerned that this culminated in her being given a final warning. She categorises the entire set of circumstances as another example of the workplace bullying directed at her.
 A number of issues can be highlighted in response, based on the evidence provided in the proceedings. Firstly, the incident that occurred in the reception area, which apparently involved staff members arguing in front of customers, did involve inappropriate behaviour by staff members, and this appears to be acknowledged by Ms Edwards. Secondly, the incident was significant enough for the Managers of the business to decide it warranted an external investigation. It is also acknowledged that this was not the only reason why they embarked on this course of action, and did so as well because of allegations made about bullying in the workplace, and because they were aware there were some difficult relationships among staff at the Moorabbin store. Therefore, it is reasonable to conclude that a relatively thorough process was gone through in terms of investigating the particular incident, and other related issues. In addition, following completion of the investigation two senior managers, Mr Lake and Mr Bishop, met with Ms Edwards for approximately two hours to talk through the issues involved. This again appears to suggest that a thorough process was gone through in terms of considering the issues involved, and taking time to obtain Ms Edwards’ views in response.
 Ms Edwards is particularly concerned by what occurred next. On 15 December 2015 she was asked to attend a meeting with the Store Manager, Mr Blake, and at this meeting was given the final warning letter. Ms Edwards has indicated that she was obviously concerned about being given a final warning, and believed this was a disproportionate response, given the nature of the incident and her previous record of service. She also submits she was not given any prior notice about what the meeting was to involve, and was not aware it was to be what she described as a disciplinary meeting. She also states she was not given any opportunity to provide an explanation in response and claims she has been singled out in terms of being given a final warning.
 It may be that the steps involved in dealing with this matter might have been handled differently. However, the circumstances were the subject of a detailed investigation carried out by a party who was external to the business, and a lengthy meeting involving Ms Edwards and senior Managers of the business then occurred to discuss the incident, and to obtain her views in response. It could have been expected, as a next step, that Ms Edwards was going to be provided at some stage with a decision about what action, if any, would be taken in response to her involvement. In addition, Ms Edwards was not the only employee to receive a warning as an outcome. The evidence indicates Ms Grobelny also received a warning, and as a consequence of a further unrelated incident is now no longer employed by the business.
 Again, as indicated previously, it is possible that this matter could have been handled differently. However, E & S Trading submits that it involved “reasonable management action carried out in a reasonable manner” and cannot be considered to constitute workplace bullying. Given all of the processes involved, including the external investigation, the mediation process, and the detailed discussions involving senior management and the employees, I am not able to conclude that these circumstances amounted to workplace bullying.
 In conclusion, it is evident that there have been a number of difficult issues at the Moorabbin store in the recent past. This has included some difficult relationships between various staff members. This is acknowledged in the evidence provided by Mr Lake and, in part, prompted the decision to initiate an investigation by an external party late last year.
 Mr Blake’s evidence also suggested that Ms Edwards is a well-intentioned, well-meaning person, who saw it as her responsibility to stand up for others in the workplace when she believed it appropriate.
 The evidence also confirms, as would be expected among a group of Sales Consultants working in a retail environment, that there was a significant degree of hype and competition among the sales team. Ms Edwards claims that on occasions sales were taken from her by other Sales Consultants, however, she apparently did not take up the opportunity to have these incidents reviewed by means of the formal review mechanism that was in place in the store.
 Clearly, each of the above factors contributed to the perceptions that Ms Edwards has about what was occurring at the Moorabbin store. However, for the reasons indicated I am not able to conclude that she has been subjected to what can be considered to be repeated and unreasonable behaviour that constitutes workplace bullying. Her application is accordingly dismissed.
R Edwards on her own behalf.
C Dowling for the Respondent.
1 Attachment to Form F72 Application for an order to stop bullying, submitted by Applicant, dated 27 April 2016, at p 5.
3 Applicant’s outline of submissions, dated 8 July 2016, at p 7.
4 Ibid at p 8.
5 Ibid at p 8.
6 Ibid at p 8.
7 Ibid at p 9.
8 Transcript at PN873.
9 Transcript at PN895.
12 Exhibit ES8 at .
13 Ibid at .
14 Exhibit ES7 at .
15 Ibid at .
16 Ibid at .
17 Exhibit ES6 at .
18 Ibid at .
19 Exhibit ES4 at .
20 Ibid at .
21 Exhibit ES3 at .
22 Exhibit ES2 at .
23 Ibid at .
24 Transcript at PN926.
25 Transcript at PN939.
26 Transcript at PN947.
27 Fair Work Act 2009 (Cth) s 789FD(1).
28 Fair Work Act 2009 (Cth) s 789FD(2).
29 Amie Mac v Bank of Queensland Limited; Michelle Locke; Matthew Thompson; Stacey Hester; Christine Van Den Heuvel; Jane Newman  FWC 774 at -.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR587583>