DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Mr Miroslav Blagojevic
v
AGL Macquarie Pty Ltd; Mitchell Seears
(C2018/3125)

Appeal against decision [2018] FWC 2906 of Commissioner Saunders at Newcastle on 23 May 2018 in matter number AB2017/585 – application for a stop bullying order – whether conduct was bullying behaviour – reasonable management action carried out in a reasonable manner – no arguable case of error – no public interest – permission to appeal refused.

Introduction

[1] On 23 May 2018 Commissioner Saunders issued a decision 1 (the Decision) dismissing Mr Blagojevic’s application for an order to stop bullying by his employer, AGL Macquarie Pty Ltd (AGLM) and his supervisor, Mr Seears (collectively, the Respondents). Mr Blagojevic has lodged an appeal against the Decision.

[2] An appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 2 There is no right to appeal and an appeal may only be made with the permission of the Commission. The matter was listed for hearing in respect of both permission to appeal and the merits of the appeal. The background to the proceedings before Commissioner Saunders is uncontroversial and may be shortly stated.3

[3] Mr Blagojevic has been employed by AGLM as an Asset Engineer since late 2006. Mr Seears commenced working at AGLM as Mr Blagojevic's supervisor on 29 November 2016.

[4] Mr Seears placed Mr Blagojevic on a performance improvement plan (a PIP) in March 2017, and a revised PIP in June 2017. Mr Blagojevic participated in nine PIP meetings with Mr Seears and Ms Price (AGLM's People and Culture Business Partner) between March 2017 and October 2017.

[5] Mr Blagojevic has been absent from work since 30 October 2017, when he provided AGLM with a medical certificate certifying him as unfit for work.

[6] On 3 November 2017, Mr Blagojevic applied to the Commission for orders to stop bullying pursuant to s.789FC of the Act, asserting that a decision by Mr Seears to place him on a PIP in March 2017 and a revised PIP in June 2017 constituted bullying at work. 4

The Statutory Framework

[7] The relevant provisions are set out in Part 6-4B of the Act (ss 789FA-789FL). Part 6-4B was inserted into the Act by the Fair Work Amendment Act 2013 (Cth) (the 2013 Amendment Act).

[8] The scope of the Commission’s power to make orders to stop bullying is set out in s.789FF:

‘(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.’ (emphasis added)

[9] Section 789FC(1) sets out who may apply to the Commission for an order under s.789FF to prevent a worker from being bullied at work:

‘s.789FC(1) A worker who reasonably believes he or she has been bullied at work may apply to the FWC for an order under section 789FF.’ (emphasis added)

[10] The definition of ‘bullied at work’ is central to the operation of Part 6-4B. A worker may only apply to the Commission for an order under s.789FF if they reasonably believe that they have been ‘bullied at work’ (s.789FC(1)). The Commission’s power to make orders to stop bullying is only enlivened if, among other matters, the Commission is satisfied that the applicant worker has been ‘bullied at work’ (s.789FF(1)(b)).

[11] It can be seen that s.789FF establishes three prerequisites to the exercise of the power to make anti-bullying orders:

1. A worker must have made an application under s.789FC.

2. The Commission must be satisfied that the applicant worker has been bullied at work by an individual or group of individuals.

3. The Commission must be satisfied that there is a risk that the applicant worker will continue to be bullied at work by the individual or group of individuals.

[12] In the proceedings at first instance there was no contest that Mr Blagojevic is a worker who reasonably believes that he has been bullied at work, and that he has made an application to the Commission for an order under s.789FF of the Act. Accordingly, there was a valid application before the Commission.

[13] The second condition required the Commission to be satisfied that Mr Blagojevic has been bullied at work by an individual or a group of individuals.

[14] Section 789FD of the Act sets out the test for establishing whether a person has been bullied at work. It provides as follows:

‘(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally-covered business:

(i) an individual; or

(ii) a group of individuals;

repeatedly behaved 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.’

[15] The test is objective. What is reasonable is a question of fact. Behaviour is unreasonable if a reasonable person, having regard to all the circumstances, may consider it to be unreasonable. 5

[16] The expression ‘repeatedly behaved unreasonably’ in s.789FD(1)(a) of the Act falls within a definition provision and is to be interpreted and applied with reference to the policy or purpose of Part 6–4B of the Act, which is to establish a mechanism by which the bullying of workers at work may be stopped. 6

[17] A one-off incident will not be a sufficient basis for the making of an application to the Commission. 7 Provided there is more than one occurrence, there is no specific number of incidents required to meet the condition of “repeated” behaviour, nor does the same specific behaviour have to be repeated.8 The statutory provision requires repeated unreasonable behaviour by the individual or a group of individuals towards the applicant worker or a group of workers to which the applicant belongs.9

[18] Section 789FD(2) qualifies the definition of when a worker is bullied at work such that it does not apply to ‘reasonable management action carried out in a reasonable manner’. There are three elements to this qualification:

•  the behaviour must be management action;

•  the taking of such management action must be reasonable; and

•  the management action must be carried out in a manner that is reasonable. 10

[19] The expression ‘management action’ in s.789FD(2) is not confined only to managerial decisions but encompasses a wider range of conduct or behaviour which affects an employee, including such things as performance and disciplinary matters, the allocation of work and the way in which work is to be carried out. 11 Placing an employee on a PIP clearly falls within the scope of the expression ‘management action’.

[20] To determine whether the action constitutes “reasonable management action” it is necessary to undertake “an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time”. 12 The test for reasonable management action is whether the “management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’.”13

[21] The specific question of whether placing a worker on a PIP constituted “reasonable management action” for the purposes of s.789FD(2) of the Act, was considered by Vice President Hatcher in Mac v Bank of Queensland Limited. 14 In that case, the applicant, Ms Mac, argued that the managerial decision to impose, and continue to impose, a PIP on her, was not reasonable management action because the shortcomings in her performance had not been sufficiently serious to justify that decision being made.15 In assessing the reasonableness of this managerial decision, the Vice President did not attempt to form his own judgment as to whether Ms Mac’s overall performance was satisfactory, explaining:16

‘… I do not consider that an assessment of whether the imposition of the PIP on Ms Mac was unreasonable requires the Commission to engage in the process of attempting to form its own judgment as to whether her overall performance was satisfactory or not and to substitute its judgment for that of the relevant BOQ managers and supervisors. Even if a different and better opinion of Ms Mac’s work performance could legitimately be formed on the evidence before me, that would not be sufficient to show that the decision to introduce the PIP was unreasonable. What is necessary is for Ms Mac to demonstrate that the decision to introduce the PIP lacked any evident and intelligible justification such that it would be considered by a reasonable person to be unreasonable in all the circumstances.’ (emphasis added)

[22] In the Decision subject to appeal the Commissioner agreed with the approach taken by the Vice President and applied it to the matter before him, noting:

‘It follows that I do not need to form my own judgment as to whether Mr Blagojevic’s overall performance was satisfactory or not. The primary issues for determination are whether the decision to introduce the PIP or revise it lacked any evident and intelligible justification, and whether the introduction and implementation of the initial and revised PIP was carried out in a reasonable manner.’ 17

[23] It is convenient to note here that Mr Blagojevic did not challenge this aspect of the Commissioner’s decision; nor did he contend that Mac v BOQ was wrongly decided. For our part, we agree with the observations of Vice President Hatcher set out at [21] above.

The Decision

[24] The Commissioner sets out the relevant statutory provisions and the proper interpretation of those provisions at [10] to [21] of the Decision. At [22] the Commissioner records Mr Blagojevic’s acknowledgement that the decision to place him on the initial and revised PIP constituted management action and his challenge to the proposition that it was reasonable management action carried out in a reasonable manner. The Commissioner summarises Mr Blagojevic’s bullying allegations at [23] to [25], noting his main contention that the five areas of concern used by Mr Seears to justify putting him on the initial and revised PIP are ‘either made up completely, or based on facts but intentionally distorted in a way that my performance looks worse than it really is’. 18 The Respondent’s response is set out at [26].

[25] The five ‘areas of concern’, along with examples, tabled in the initial PIP, were as follows: 19

[26] The Commissioner dealt with each of the areas of concern in the Decision. Areas of concern one, two and four are addressed at [79] to [88] and based on the findings made there the Commissioner concludes (at [88]):

‘Consequently, I am satisfied on the balance of probabilities that Mr Blagojevic’s complacency and lack of leadership in relation the electrical and control issues at the Ravensworth Plant and Chillcotts Creek myHSE Action was an evident and intelligible justification for Mr Seears to place Mr Blagojevic on a PIP.’

[27] Area of concern three is addressed at [89] to [92] and the Commissioner concludes (at [92]):

‘I accept that it was reasonable for Mr Seears and AGL to expect Mr Blagojevic to appropriately manage the budget for the Ravensworth Plant and therefore it was reasonable for these concerns to form part of the justification for Mr Seears’s decision to place Mr Blagojevic on a PIP when he did not improve in this area. It follows that this issue provided an evident and intelligible justification for putting Mr Blagojevic on a PIP.’

[28] Area of concern five relates to Mr Blagojevic’s alleged use of systems other than SAP to store his strategy for equipment. Mr Blagojevic argued that this was a trivial error that could have been prevented or corrected by Mr Seears’ instruction. This area of concern is addressed at [93] to [96] and the Commissioner concludes (at [96]):

‘I accept that Mr Seears had a genuine concern that some information was being recorded on documents and in systems outside SAP in circumstances where Mr Seears reasonably required all relevant information to be included in SAP. Mr Seears ultimately made the decision to remove this area of concern from the PIP on 7 June 2017, because he formed the view that Mr Blagojevic was hung up on it and it was distracting them from focusing on the main tasks set out in the PIP. That was an appropriate and reasonable course to take in the circumstances.’

[29] The events leading up to the revised PIP and the revised PIP are set out at [97] to [100] and [101] to [108] respectively.

[30] In the course of the Decision the Commissioner made several findings of fact in relation to critical matters, including:

(i) Mr Seears' decision to place Mr Blagojevic on a PIP was a result of his view in relation to Mr Blagojevic's performance, and was not influenced by inappropriate considerations; 20

(ii) Mr Blagojevic's complacency and lack of leadership in relation (to) the electrical and control issues at the Ravensworth Plant and Chilcotts Creek myHSE Action was an evident and intelligible justification for Mr Seears to place Mr Blagojevic on a PIP; 21 and

(iii) Mr Seears' action in placing Mr Blagojevic on the initial PIP and then revising and maintaining the PIP was reasonable management action carried out in a reasonable manner. 22

[31] As to (i), the relevant finding is in the following terms:

‘Based on the evidence outlined in paragraphs [72] – [74] above, I am satisfied that Mr Seears’s made the decision to put Mr Blagojevic a PIP as a result of him forming his own mind as to Mr Blagojevic’s underperformance. I do not consider that Mr Seears’s motivation in placing Mr Blagojevic on a PIP was malicious, intended to make Mr Blagojevic’s life miserable or in any way influenced by Mr Blagojevic’s complaint against Mr Logan. Such a finding is supported by the fact that Mr Seears decided to place two other AGL employees within the external plant team on a PIP around February 2017.’ 23

[32] The Commissioner ultimately found, at [116], that Mr Blagojevic had not, as alleged by him, been bullied within the meaning of s.789FD of the Act. On that basis the Commissioner concluded that he did not have the power to make any of the orders sought by Mr Blagojevic and dismissed the application.

[33] The basis for the Commissioner’s conclusion is set out at [113] to [114]:

‘On many occasions throughout his employment with AGL, Mr Blagojevic received feedback from his supervisors that his performance was exceeding expectations. Having become accustomed to such feedback, it is perhaps understandable why, subjectively speaking, Mr Blagojevic found Mr Seears’s decision to place him on a PIP to be devastating news. However, any unreasonableness must arise from the actual management action in question rather than Mr Blagojevic’s perception of it.

I am satisfied that Mr Blagojevic’s performance in relation to a range of issues, including the electrical and control issues at the Ravensworth Plant and the Chillcott Creek myHSE Action, provided an evident and intelligible justification for Mr Seears’ decision to place Mr Blagojevic on a PIP. It was reasonable for Mr Seears and AGL to expect Mr Blagojevic to demonstrate leadership in his role as an Asset Engineer by taking responsibility for the timely completion of work in connection with the assets assigned to Mr Blagojevic, including by expecting and requiring Mr Blagojevic to influence and, where necessary, place pressure on others to complete work in the time required. Mr Seears complied with AGL policy in providing Mr Blagojevic with informal coaching and an opportunity to improve before placing him on the PIP and thereafter, provided him with a range of measures of support in an attempt to assist him to improve his performance. Further, Mr Seears own manager, Mr Barry Millar (AGL’s Head of Engineering), was consulted in relation to Mr Blagojevic’s PIP. Mr Millar formed the view that Mr Blagojevic’s PIP was reasonable and achievable. The revised PIP was put in place after lengthy discussions between Mr Blagojevic and Mr Seears and on the basis of genuine and reasonable concerns on Mr Seears’ part that Mr Blagojevic was not performing at the necessary level in some aspects of his role as an Asset Engineer. I am satisfied that Mr Seears’ action in placing Mr Blagojevic on the initial PIP and then revising and maintaining the PIP was reasonable management action carried out in a reasonable manner.’

The Appeal

[34] Mr Blagojevic seeks permission to appeal the Decision pursuant to s.604 of the Act.

[35] An appeal under s.604 of the Act is an appeal by way of rehearing. The Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 24 There is no right to appeal and an appeal may only be made with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is ‘in the public interest to do so.’ Permission to appeal may otherwise be granted on discretionary grounds.

[36] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 25 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:

‘... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.’ 26

[37] Other than a special case in s 604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if refused. 27

[38] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 28 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.29

[39] Mr Blagojevic submits that it is in the public interest to grant permission to appeal, because: 30

(i) whether someone can be held accountable over the delivery of projects when he does not have authority over the execution teams is an issue of general importance and application; and

(ii) the Decision manifests an injustice, because of the complaints that are set out at [40] below.

[40] Mr Blagojevic’s complaints about the Decision can be summarised 31 as follows:

(i) the Commissioner failed to consider whether the conduct that Mr Blagojevic complained of amounted to bullying, and instead only considered the examples that Vice President Hatcher set out in Mac v BOQ at [99]; 32

(ii) the Commissioner incorrectly dealt with the reasonableness of Mr Seears’ concerns about Mr Blagojevic’s work performance, and an alternative approach is for the Commission to retain an expert engineer to answer whether someone could be held accountable for the execution of work when the person does not have any authority over execution teams; 33

(iii) the Commissioner should not have relied on Mr Seears’ evidence, because Mr Seears was not a credible witness, his actions were malicious, and the file note he created outlining his concerns about Mr Blagojevic’s performance was unreliable; 34

(iv) the evidence does not disclose any evident and intelligible justification for Mr Seears to have placed Mr Blagojevic on a PIP, and the findings that the areas of concern listed in the PIP are made out is contrary to evidence that Mr Blagojevic led; 35

(v) there was no evident and intelligible justification for Mr Seears to place Mr Blagojevic on the revised PIP; 36 and

(vi) the PIP and the revised PIP was implemented in an unreasonable manner, and it was not open to the Commissioner to find that: 37

(a) Mr Seears did not deliberately tighten the timelines for the completion of expectations and work actions in the revised PIP; and

(b) the expectations, work actions and or timelines contained in either the initial PIP or the revised PIP were not unreasonable or unachievable.

[41] It is convenient to deal first with the public interest grounds advanced by Mr Blagojevic. As to the first ground ([39](i)), the issue of when and to what extent someone can be held accountable for the delivery of a project is a matter to be determined on the available evidence in a particular case. Contrary to the submission advanced by Mr Blagojevic it is not an issue of general importance or application.

[42] To the extent that Mr Blagojevic’s submissions suggest that the issue of general importance or application is the approach the Commission must take when dealing with the reasonableness of a supervisor's concerns about an employee's performance, we note that this issue was addressed in Appellant v Respondent. 38 In that matter the Full Bench refused permission to appeal in that instance, and confirmed that the Commission is not required to undertake a merits review of each aspect of an employer's assessment of an employee's performance when it is considering whether behaviour amounts to reasonable management action.39 We would also observe that Mr Blagojevic does not challenge the principles adopted by Commissioner Saunders, rather he challenges the Commissioner’s findings and conclusions in giving effect to those principles.

[43] As to the second ground ([39](ii)), Mr Blagojevic contends that the Commissioner erred in the manner he identifies (summarised at [40]) and on that basis it is said that the Decision manifests an injustice. For the reasons set out below, we are not persuaded that Mr Blagojevic has established an arguable case of error in respect of the various issues identified and accordingly we are not satisfied that the Decision manifests an injustice.

[44] Accordingly, no issue of general application or principle arises; the Decision does not manifest an injustice and nor is the result counter-intuitive, such as to enliven the public interest.

[45] As mentioned earlier, a finding that it is ‘in the public interest’ to grant permission to appeal requires the grant of permission; but permission to appeal may otherwise be granted on discretionary grounds. We will now consider whether the submissions advanced by Mr Blagojevic demonstrate an arguable case of error in the Decision. Before turning to deal with each of the arguments we propose to say something about the general approach to challenging findings of fact on appeal.

[46] In the joint reasons in Fox v Percy, 40 in a passage which has been applied since,41 Gleeson CJ, Gummow and Kirby JJ said:

‘[An appellate court] must, of necessity, observe the ‘natural limitations’ that exist in the case of any appellate court proceedings wholly or substantially on the record. 42 These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which an appellate court reading the transcript, cannot always fully share.’43

[47] More recently, in Short v Ambulance Victoria, 44 the Full Court of the Federal Court summarised the principles to be applied by an appellate court or tribunal when considering challenges on appeal to findings of fact made at trial in circumstances where those findings rested on assessments of credibility:

‘It was central to Mr Short’s case that the real reasons for the refusal to appoint him to higher duties were not as Mr Standfield and Ms Ray testified, and he attacked the credibility of their account. The authorities set a high bar for an appellant seeking to overturn credit findings. In Devries v Australian National Railways Commission the majority per Brennan, Gaudron and McHugh JJ observed:

More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.

In Fox v Percy at [26] - [31] Gleeson CJ, Gummow and Kirby JJ reiterated that a finding of fact by a trial judge, based on the credibility of a witness, will usually only be set aside upon appeal where incontrovertible facts or uncontested testimony demonstrate that the judge’s conclusions are erroneous, or where it is concluded that a decision was clearly improbable or contrary to compelling inferences.’ (citations omitted).

[48] These principles have been consistently applied by Full Benches of the Commission for many years. In the context of appeals, Full Benches have consistently held that findings of fact made by a Member at first instance must stand unless it can be shown that the Member ‘has failed to use or has palpably misused (their) advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’. 45

[49] We turn to the stated complaints about the Decision, noting that there is some overlap in those matters.

(i) Failure to consider whether the conduct that Mr Blagojevic complained of amounted to bullying

[50] It is evident from a reading of the Decision that the Commissioner refers to, describes, and assesses the behaviours that Mr Blagojevic complained amounted to bullying by Mr Seears. Amongst other matters, Mr Blagojevic contended that the decision to introduce the PIPs ‘lacked any evident and intelligible justification such that it would be considered by a reasonable person to be unreasonable in all the circumstances’. 46

[51] The Decision acknowledges Mr Blagojevic’s opinion that the decision to introduce the PIP and the revised PIP was unreasonable, 47 and that the implementation of the initial and revised PIP was carried out in an unreasonable manner.48 However, as the Commissioner correctly observes, any unreasonableness must arise from the actual management action rather than Mr Blagojevic’s perception of it.49 In this regard, the Commissioner was satisfied on the available evidence that:

(a) Mr Seears genuinely held concerns about Mr Blagojevic’s performance; 50

(b) Mr Seears’ concerns provided an evident and intelligible justification for placing Mr Blagojevic on both the PIP 51 and the revised PIP;52

(c) the work expectations, actions and timelines in either the initial PIP or the revised PIP were not unachievable or unreasonable; 53 and

(d) the PIP was implemented in accordance with AGLM's policies, 54 and not in an unreasonable manner.55

[52] In so doing, the Commissioner did not simply rely upon the examples of bullying conduct found in Mac v BOQ or the subjective views of any of the parties. Rather, he objectively considered the conduct raised in the application based upon the evidence before the Commission, as he was required to.

We are not satisfied that an arguable case of appealable error has been established in relation to this ground of appeal.

(ii) The reasonableness of Mr Seears’ concerns with Mr Blagojevic's work performance

[53] The Commissioner correctly identified the approach he was required to take at [20] and [21] of the Decision. The Commissioner was not required to review Mr Blagojevic’s performance and substitute his own assessment of whether or not Mr Blagojevic’s performance was satisfactory for that of Mr Seears.⁵⁶ It was sufficient for the Commissioner to find that Mr Seears’ concerns were genuinely held and that there was an evident and intelligible justification for them. The Commissioner’s findings in this regard were clear and based on evidence which he recorded inthe Decision..

[54] This ground of appeal does not disclose any arguable case of appealable error.

(iii) Findings about Mr Seears’ credibility and Mr Seears’ motives

[55] The Commissioner found that each of the witnesses (including Mr Seears) generally gave truthful evidence about the relevant matters of fact. 57

[56] The Commissioner was satisfied by the evidence, including Mr Seears’ evidence, that Mr Seears’ motivation in placing Mr Blagojevic on a PIP was not malicious. 58

[57] Mr Blagojevic asserts that Mr Seears was not a credible witness. However, the Commissioner was well placed to make this assessment based on his observation of the witness.

[58] In this regard, Mr Blagojevic complains about the Commissioner’s reference to Mr Seear’s notes of his interactions with Mr Blagojevic 59 as ‘contemporaneous’, pointing to what he identifies as the properties of the document.

[59] Mr Seears did not describe his notes as ‘contemporaneous’ in his statement, 60 or in the evidence that he gave during the hearing, and was asked no question relevant to the issue. Accordingly, there is no evidence in relation to the date they were first created, or, if created after the event, whether they were prepared from contemporaneous primary notes.

[60] However, even if the finding that Mr Seears notes were contemporaneous was not based on evidence, this does not establish an appealable error. The Commissioner found Mr Seears to be a credible witness, and the information contained in Mr Seears’ file note is consistent with the evidence that Mr Seears gave at the hearing. The Commissioner had the benefit of observing Mr Blagojevic cross examine Mr Seears about the matters in the file note during the hearing. We observe that the Commissioner also directly questioned Mr Seears about a range of issues that arose from Mr Blagojevic’s competing contentions.

[61] This ground of appeal does not disclose any arguable case of appealable error. We are not satisfied that it has been shown that the Commissioner ‘has failed to use or has palpably misused (his) advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’.

(iv) No evident and intelligible justification to place Mr Blagojevic on a PIP

[62] The Commissioner identified the issues for determination and set out the approach that he adopted in resolving the issues at [20] and [21] of the Decision.

[63] On the basis of the evidence before him, the Commissioner was satisfied that the following aspects of Mr Blagojevic’s performance provided an evident and intelligible justification for Mr Seears to place Mr Blagojevic on a PIP:

(a) Mr Blagojevic’s lack of leadership and regular and urgent communications with relevant personnel, which resulted in the myHSE Action that was assigned to him not being completed to the required standard by the extended deadline of 16 February 2017; 61

(b Mr Blagojevic’s lack of leadership and failure to put ‘pressure’ on relevant personnel to ensure that works within his plant were completed in a timely manner; 62 and

(c) Mr Blagojevic’s understanding of forecasting and budget control. 63

[64] The Commissioner also considered that Mr Seears’ requirement that all relevant information be included in SAP was reasonable, and Mr Seears had genuine concerns that Mr Blagojevic was not complying with this requirement when he decided to place Mr Blagojevic on the PIP.⁶⁴

[65] The Commissioner considered that Mr Seears acted reasonably by removing area of concern five, which related to Mr Blagojevic’s use of systems other than SAP to store his strategy for equipment, when Mr Seears formed the view that it was distracting Mr Blagojevic from focussing on the main tasks in the PIP. 65

[66] Mr Blagojevic asserts that a number of the findings that the Commissioner made in determining that there was an evident and intelligible justification to place Mr Blagojevic on the PIP are not correct, because they are contrary to the evidence that Mr Blagojevic led. For example, Mr Blagojevic contends that:

(a) the finding that the position description applicable to the role of Asset Engineer applied to Mr Blagojevic is contrary to Mr Blagojevic’s evidence; 66

(b) Mr Blagojevic did not approve a $15,000 purchase order to ALS Limited for incomplete work; 67

(c) Mr Blagojevic only had responsibility for the Instrumentation and Control (I&C) works between September 2016 and May 2017, and they remain incomplete, however, Mr Blagojevic is the only person that has been pursued over them; 68

(d) Mr Blagojevic escalated issues to Mr Seears during fortnightly meetings with the external plant team (called ‘RARs’), and this was sufficient escalation; 69

(e) Mr Blagojevic demonstrated leadership skills, when he realised that the I&C Team had not performed I&C works in his plant, he raised the issue with the I&C Manager; 70

(f) ‘Area of concern 5’ in the PIP (relating to the requirement for all equipment strategy to reside in SAP) was not limited to Mr Blagojevic’s use of systems other than SAP to store his strategy for equipment, and included Mr Blagojevic’s actions in updating a strategy document that resided outside of SAP in accordance with a myHSE requirement; 71 and

(g) Mr Seears was aware that another employee was responsible for updating information about pressure vessels in SAP when he decided to place Mr Blagojevic on the PIP. 72

[67] The Commissioner considered and gave weight to Mr Blagojevic’s evidence in regard to each of the findings he made, expressly referring to Mr Blagojevic’s position in relation to issues in many instances.

[68] Amongst other matters, there was, in effect, a dispute in the evidence about the extent of the responsibilities that attached to Mr Blagojevic’s role for works outside of his immediate budget accountability and the actions that might be taken to influence the progress in relation to any such work. Mr Blagojevic’s oral submissions before the Full Bench highlighted among other things the existence of that dispute.

[69] There was sufficient evidence to support the Commissioner's findings about these matters and to support his conclusion that there was an evident and intelligible justification for Mr Seears’ decision to place Mr Blagojevic on a PIP. The relevant evidence is also set out in the Decision. The challenged findings were reasonably open on the evidence.

[70] This ground of appeal does not establish an arguable case of error.

(v) No evident and intelligible justification to place Mr Blagojevic on the revised PIP

[71] Mr Blagojevic contends that there was no feedback given to him about not complying with the first PIP and that the second PIP was introduced because, amongst other matters, Mr Seears did not like the outcome of the first PIP and wanted the Appellant to fail. 73

[72] Based on Mr Seears’ evidence, the Commissioner was satisfied that Mr Seears continued to hold genuine, reasonable and justified concerns in relation to Mr Blagojevic's performance at the time the revised PIP was put in place, and this was an evident and intelligible justification to place Mr Blagojevic on the revised PIP. 74

[73] Mr Seears met with Mr Blagojevic between 15 March 2017 and 23 June 2017 to discuss the PIP. 75 Ms Price (the employer’s People and Culture Business Partner) also attended those meetings, and her notes of those meetings were admitted into evidence.76 Ms Price’s notes show that:

(a) Mr Blagojevic did not agree to the PIP actions and timeframes until 23 June 2017, although he refused to sign the PIP; 77 and

(b) Mr Seears provided Mr Blagojevic with feedback on his performance during those meetings. 78

[74] Many of the concerns about the scope of the responsibilities and the extent of actions taken by Mr Blagojevic set out earlier (at [64]) remained at this time. There was also apparently a difference of view about priorities associated with some of the uncompleted tasks. The existence of this difference of view was in our view reinforced by Mr Blagojevic’s oral submissions.

[75] The Commissioner’s findings on all of these aspects were reasonably open on the evidence and no arguable case of appealable error has been shown in respect of this ground of appeal.

(vi) Finding that the PIP was not implemented unreasonably

[76] The Commissioner was satisfied that Mr Seears’ decision to place Mr Blagojevic on the initial PIP, and then revising and maintaining the PIP, was reasonable management action carried out in a reasonable way. 79

[77] In reaching this conclusion, the Commissioner expressly considered and rejected Mr Blagojevic’s contentions that Mr Seears forced Mr Blagojevic to agree to the timeline for the completion of expectations and work actions in the revised PIP, 80 and that Mr Seears intentionally tightened the timelines in the PIP so that it was harder for Mr Blagojevic to meet them.81

[78] Mr Blagojevic also contended that the PIPs were implemented unreasonably due to the impact upon his mental health, which was, or should have been, evident to the Respondents. It appears to be common ground that Mr Blagojevic advised his employer that he was visiting a Psychologist, was on medication, and that he was not coping with the implementation of the PIP. We accept that the continuation of a PIP or similar process where a worker is not well enough to participate in such a process, may, depending upon the circumstances, constitute unreasonable behaviour. That assessment must be made objectively, taking into account all of the relevant circumstances.

[79] In this case, the Commissioner dealt with this aspect at [99] of the decision in the following terms:

“I accept that at some point during these meeting, Mr Seears realised that Mr Blagojevic’s health was being adversely affected by the PIP process. Although Mr Seears (and AGL) knew the process was affecting Mr Blagojevic’s health, I am not satisfied that, in continuing to impose the PIP on him, Mr Seears was carrying out the implementation of the PIP in an unreasonable manner. Mr Seears offered Mr Blagojevic his personal support and coaching and confirmed his ability to access AGL’s EAP. 87 I accept that Mr Seears and/or Ms Price also took the following reasonable actions in response to requests made by Mr Blagojevic at meetings during the period from March to June 2017:

•  made enquiries to ascertain whether there were any suitable alternative roles in AGL;

•  organised for the initial PIP to be independently reviewed by Mr Barry Miller, Head of Engineering. Ms Price gave evidence that during a meeting between herself, Mr Miller and Mr Blagojevic on 31 May 2017, Mr Miller explained to Mr Blagojevic that he had reviewed the PIP and he considered the expectations to be reasonable and achievable. Mr Miller did not give evidence in these proceedings; however, I accept Ms Price’s account of the meeting, which is supported by her minutes of the meeting;

•  acted slowly throughout the PIP process to ensure Mr Blagojevic understood the requirements of the plan;

•  referred Mr Blagojevic to Ms Nam Silvestri, AGL’s Return to Work Coordinator. This step was taken when it appeared that Mr Blagojevic’s mental health was suffering. AGL asked Mr Blagojevic to give Ms Silvestri permission to speak to his treating doctor to obtain information about his mental health. As a result of that process, Mr Blagojevic’s treating doctor completed a treating doctor questionnaire and provided it to AGL; and

•  removed the fifth area of concern from the PIP.”

[80] These findings were reasonably open to the Commissioner given the extensive evidence 82 about Mr Seears’ awareness of the issue, the strategies adopted to support Mr Blagojevic, and the fact that when it became clear that the Appellant was not capable of coming to work or participating in the PIP, the PIP was paused. Further, the findings about the objective justification for the implementation of the PIPs are also relevant in this context.

[81] This ground of appeal does not demonstrate an arguable case of appealable error.

Conclusion

[82] In the Decision, the Commissioner dismissed the application 83 on the basis that he was satisfied that Mr Seears’ action in placing Mr Blagojevic on both the initial PIP and the revised PIP, and the implementation of the initial and revised PIP, was reasonable management action carried out in a reasonable manner.84

[83] The Commissioner also determined that Mr Blagojevic was not bullied at work by the Respondent and made the following observations:

‘[113] On many occasions throughout his employment with AGL, Mr Blagojevic received feedback from his supervisors that his performance was exceeding expectations. Having become accustomed to such feedback, it is perhaps understandable why, subjectively speaking, Mr Blagojevic found Mr Seears’s decision to place him on a PIP to be devastating news. However, any unreasonableness must arise from the actual management action in question rather than Mr Blagojevic’s perception of it.’

[84] In this regard, we also note that the Decision confirms that Mr Blagojevic is an experienced, diligent and hard-working Professional Engineer with particular skills that are highly valued. 85

[85] The Commissioner further concluded:

‘[114] I am satisfied that Mr Blagojevic’s performance in relation to a range of issues, including the electrical and control issues at the Ravensworth Plant and the Chillcott Creek myHSE Action, provided an evident and intelligible justification for Mr Seears’ decision to place Mr Blagojevic on a PIP. It was reasonable for Mr Seears and AGL to expect Mr Blagojevic to demonstrate leadership in his role as an Asset Engineer by taking responsibility for the timely completion of work in connection with the assets assigned to Mr Blagojevic, including by expecting and requiring Mr Blagojevic to influence and, where necessary, place pressure on others to complete work in the time required. Mr Seears complied with AGL policy in providing Mr Blagojevic with informal coaching and an opportunity to improve before placing him on the PIP and thereafter, provided him with a range of measures of support in an attempt to assist him to improve his performance. Further, Mr Seears own manager, Mr Barry Millar (AGL’s Head of Engineering), was consulted in relation to Mr Blagojevic’s PIP. Mr Millar formed the view that Mr Blagojevic’s PIP was reasonable and achievable. The revised PIP was put in place after lengthy discussions between Mr Blagojevic and Mr Seears and on the basis of genuine and reasonable concerns on Mr Seears’ part that Mr Blagojevic was not performing at the necessary level in some aspects of his role as an Asset Engineer. I am satisfied that Mr Seears’ action in placing Mr Blagojevic on the initial PIP and then revising and maintaining the PIP was reasonable management action carried out in a reasonable manner.

[115] I reject the contention that the PIP process was put in place by Mr Seears in an effort to have Mr Blagojevic removed from AGL; instead, I am satisfied that it was put in place in a genuine attempt to improve Mr Blagojevic’s performance.’

[86] For the reasons given earlier (at [41] to [44]) we are not satisfied that it is in the public interest to grant permission to appeal. Further, having regard to the grounds of appeal, the submissions of the parties and the circumstances of this matter, we do not identify any arguable case of an appealable error on the part of the Commissioner. We are therefore not satisfied that the Decision is attended with doubt such as to warrant its reconsideration on appeal and we are not persuaded that substantial injustice may result if permission to appeal is refused.

[87] Permission to appeal is refused.

PRESIDENT

Appearances:

M Blagojevic on his own behalf.

D Williams, with permission, for the Respondent.

Hearing details:

Sydney.

2018.

13 July.

 1   [2018] FWC 2906.

 2   This is so because on appeal FWC has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

 3   Set out in the Respondent’s Outline of Submissions at [11]-[16] and uncontested by Mr Blagojevic. See Transcript 13 July 2018 at [20]-[21].

 4   Decision at [2].

 5   GC [2014] FWC 6988 (GC) at [47].

 6   Mac v Bank of Queensland Limited [2015] FWC 774 at [89] (‘Mac v BOQ’).

 7   Re SB (2014) 244 IR 127; [2014] FWC 2104 (Re SB) at [41].

 8   GC at [45].

 9   Ibid; Mac v BOQ at [88]-[89].

 10   GC at [52].

 11   Purcell v Ms Mary Farah and Mercy Education Ltd T/A St Aloysius College [2016] FWC 2308 at [22].

 12   Re SB at [49]. See also Comcare v Martinez (No. 2) [2013] FCA 439 at [83] dealing with related concepts.

 13   Re SB at [51] see also Mac v BOQ at [91].

 14   Mac v BOQ.

 15   Mac v BOQ at [101].

 16   Ibid at [102].

 17   Decision at [21].

 18   Decision at [23]; Exhibit A3.

 19   Ex R4; attachment MS-3.

 20   Decision at [75].

 21   Decision at [88], and confirmed at [114].

 22   Decision at [114].

 23   See Decision at [62].

 24   Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

 25   O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46] .

 26   [2010] FWAFB 5343, 197 IR 266 at [24] – [27]

 27   Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481.

 28   Wan v AIRC [2001] FCA 1803 at [30]

 29   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]

 30   Submissions of Miroslav Blagojevic dated 22 June 2018 at [4].

 31   As set out in the Respondent’s Outline of Submissions at [22]-[23] and uncontested by Mr Blagojevic; See Transcript 13 July 2018 at [2]-[23].

 32   Submissions of Miroslav Blagojevic dated 22 June 2018 at [5].

 33   Submissions of Miroslav Blagojevic dated 22 June 2018 at [15].

 34   Submissions of Miroslav Blagojevic dated 22 June 2018 at [26].

 35   Submissions of Miroslav Blagojevic dated 22 June 2018 at [11].

 36   Submissions of Miroslav Blagojevic dated 22 June 2018 at [6] and [7].

 37   Submissions of Miroslav Blagojevic dated 22 June 2018 at [25].

 38   [2015] FWCFB 1972.

 39   Appellant v Respondent [2015] FWCFB 1972 at [30].

 40   Fox v Percy (2003) 214 CLR 118; 197 ALR 201; 38 MVR 1; [2003] HCA 22 at para 23.

 41   Australian Securities and Investments Commission v Hellicar (2012) 86 ALJR 522; 286 ALR 501; 88 ACSR 246; [2012] HCA 17 at para 130; Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; 270 ALR 204; [2010] HCA 31 at para 76.

 42   Dearman v Dearman (1908) 7 CLR 549 at 561; 15 ALR 287 at 291; [1908] HCA 84. See also Scott v Pauly (1917) 24 CLR 274 at 278-81; 24 ALR 27 at 31-3; [1917] HCA 60.

 43   Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 at 637; [1985] 1 AII ER 635 at 637, per Lord Scarman, with reference to Joyce v Yeomans [1981] 1 WLR 549 at 556; [1981] 2 AII ER 21 at 26. See also Chambers v Jobling (1986) 7 NSWLR 1 at 25.

 44   Short v Ambulance Victoria [2015] FCAFC 55 at [98]-[99].

 45   Barwon Health – Geelong Hospital v Dr Mark Colson; Dr Mark Colson v Barwon Health – Geelong Hospital [2013] FWCFB 4515; City Motor Transport Group v Devcic [2014] FWCFB 6074; Jones v Ciuzelis [2015] FWCFB 84; Colin Wright v AGL Loy Yang Pty Ltd [2016] FWCFB 4818.

 46   Transcript 13 July 2018 at [29].

 47   Decision at [23], [76], [90].

 48   Decision at [24].

 49   Decision at [19] and [113].

 50   Decision at [75].

 51   Decision at [88] and [92].

 52   Decision at [101].

 53   Decision at [105].

 54   Decision at [66], [70], [73], and [114].

 55   Decision at [99] and [105].

56 Appellant v Respondent [2015] FWCFB 1972 at [30].

 57   Decision at [6].

 58   Decision at [72] – [75].

 59   Statement of Mitchell Seears dated 27 February 2018; attachment MS-2.

 60   Statement of Mitchell Seears dated 27 February 2018 at [5].

 61   Decision at [87] - [88]. The circumstances of the Chilcotts Creek myHSE action were considered at [54] – [61], and evidence and findings about the responsibilities of Mr Blagojevic's role are set out at [79] – [87] of the Decision.

 62   Decision at [87] and [88]. The circumstances of Mr Seears' concerns about the condition of the Ravensworth Plant are at [50] – [53], [62] of the Decision.

 63   Decision at [92].

64 Decision at [96].

 65   Decision at [96].

 66   Submissions of Miroslav Blagojevic dated 22 June 2018 at [12] – [14]. The Commissioner deals with this at [79] – [85] of the Decision.

 67   Submissions of Miroslav Blagojevic dated 22 June 2018 at [4] and [8]. The purchase order is referred to at [56], [60] and [89] of the Decision.

 68   Submissions of Miroslav Blagojevic dated 22 June 2018 at [16].

 69   Submissions of Miroslav Blagojevic dated 22 June 2018 at [16].

 70   Submissions of Miroslav Blagojevic dated 22 June 2018 at [16].

 71   Submissions of Miroslav Blagojevic dated 22 June 2018 at [20].

 72   Submissions of Miroslav Blagojevic dated 22 June 2018 at [19].

 73   Appeal transcript at PN67 to PN70.

 74   Decision at [101]

 75   Decision at [97].

 76   Decision at [98].

 77   Statement of Anthea Price dated 27 February 2018, attachment AP-3 (meeting note from 23 June 2017).

 78   See, for example, statement of Anthea Price dated 27 February 2018, attachment AP-3 (meeting notes from 24 March 2017, 7 June 2017, 22 June 2017).

 79   Decision at [114].

 80   Decision at [103].

 81   Decision at [105].

 82   Transcript 10 April 2018 at PN1466 to PN1566.

 83   Decision at [116].

 84   Decision at [114].

 85   Decision at [1].

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