[2020] FWC 1123
The attached document replaces the document previously issued with the above code on 28 February 2020.
First sentence of paragraph two amended to replace ‘Ms Reed’ with ‘Ms Hicks’.
Associate Rhys James
Associate to Deputy President Beaumont
Dated 3 March 2020.
[2020] FWC 1123 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Mrs Sarah Hicks
v
Murujuga Aboriginal Corporation; Ms Mariah Reed
(AB2019/17)
DEPUTY PRESIDENT BEAUMONT |
PERTH, 28 FEBRUARY 2020 |
Application for an FWC order to stop bullying – orders not granted.
[1] Ms Hicks is a ranger with Murujuga Aboriginal Corporation (MAC). Over a period, the relationship with her Team Leader, Ms Reed, has descended to a point of purported unhealthy tension. In the eyes of Ms Hicks, the relationship is punctuated by incidents of condescension, disparaging remark or action, name calling, the assignment of meaningless tasks, and aggression. Similarly, Ms Reed is aggrieved by the conduct of Ms Hicks and whilst she lodged a complaint with MAC, her preference was to leave it at that.
[2] And so, Ms Hicks has applied to this Commission for an order to stop bullying under s 789FC of the Fair Work Act 2009 (Cth) (Act). Supported by her mother, Ms Sharon Hicks, and represented by her advocate, Mr King, she chose to initiate this action before her employer was able to investigate her initial complaint about Ms Reed, which was made to Mr Jeffries, the Chief Executive Officer of MAC. Mr Jeffries gave instruction to commence an investigation into Ms Hicks’ complaints about Ms Reed. That investigation ultimately ensued after the application was lodged. The investigation process, conducted by independent consultants, covered Ms Hicks’ initial complaint about Ms Reed, and the subsequent allegations raised in her application to this Commission. That investigative process attracted much criticism from Ms Hicks, as conveyed by her representative.
[3] Mr Jeffries presented as a rational and empathetic CEO, with a good measure of pragmatism. He explained that MAC owned, and, together with the Department of Biodiversity, Conservation and Attractions, co-managed the Murujuga National Park, comprising 4,913 hectares of land on the Burrup Peninsula. It employed a team of rangers known as the Murujuga Land and Sea Unit (the Unit), who together fulfilled MAC’s work in managing country, land and sea, including culturally significant sites. With candour, Mr Jeffries traversed the workplace cultural problems he considered existed at MAC, noting that at the time of hearing MAC was in the process of engaging a legal firm to come in and provide a strategic overview with a view to fixing the culture in the organisation. 1
[4] In respect of bullying applications like the one Ms Hicks has brought, the Commission may make an order which it considers appropriate ‘to prevent the worker from being bullied at work by the individual or group’. If other jurisdictional prerequisites have been met – which we will traverse shortly, the discretion to make the order is only exercisable if the Commission is satisfied:
a) the worker has been bullied at work by an individual or a group of individuals; and
b) there is a risk that the worker will continue to be bullied at work by the individual or group. 2
[5] Whilst we will look at the requisites for the making of an order in further detail later in the decision, in short, the first limb requires that the worker has been bullied. To be bullied at work means that an individual or group of individuals has repeatedly behaved unreasonably towards the worker. 3 The necessity for the conduct to be repeated implies the existence of persistent unreasonable behaviour.4
[6] Assuming the first limb is satisfied, consideration turns to whether there is a risk that the worker will ‘continue’ to be bullied ‘at work’ by the individual or group responsible for the bullying identified in the first limb. The risk does not have to be imminent, but it must be real, and not merely a conceptual or hypothetical, risk. 5
[7] In this matter the factual matrix is somewhat complex because of the familial relationships within MAC, other incidents that have affected subsequent interactions between relevant persons, and a blurring of the lines between the place of work and the place of personal life, and Ms Hicks’ learning difficulties. However, at the heart of the dispute lay some distinct incidents (collectively the Incidents) interweaved generally within an alleged landscape, as noted, of disparaging remarks, aggressive behaviour and the assignment of meaningless tasks. Whilst not listed in chronological order, set out below are the Incidents.
Incident 1 - The Christmas Party 2018
Ms Hicks reported that at the Christmas Party in 2018, Ms Reed asked her about a conversation she had had with another attendee, Ms Cooper. Ms Hicks states that she informed Ms Reed that she had told Ms Cooper that she had not reported the man who was said to have sexually assaulted her to the police (Mr Boona). There was further discussion and Ms Hicks stated that Ms Reed then proceeded to say that Ms Cooper was a ‘fucking liar always out to cause trouble she was nothing but a cunt’.
Incident 2 - Conduct in front of tourists
Ms Hicks expressed that Ms Reed deliberately made fun of her in front of tourists visiting the National Park. Ms Reed is said to have made fun of the way Ms Hicks walked with the tourists and then called her ‘a stupid dumb cunt’.
Incident 3 - The photo shoot
Ms Hicks was involved in a prior sexual harassment complaint and states that Ms Reed is aware about how she feels about males. When rangers were positioning themselves for a photo, Ms Hicks stated that Ms Reed intentionally pushed Ms Hicks into a male ranger and laughed loudly. The incident was reported to Mr Wilson, Unit Coordinator.
Incident 4 - Making a rude finger
According to Ms Hicks, Ms Reed will regularly single her out and stick her middle finger up at her making sure it is seen by others in the workplace. Sometimes the gesture is accompanied by the statement ‘fuck you’.
Incident 5 - In the car – ‘some cunts don’t have to pay rent’
Ms Hicks held the view that Ms Reed was upset with her for reporting Ms Reed to Mr Wilson, Unit Coordinator, about Ms Reed pushing Ms Hicks into a male ranger whilst having a photo taken. As a consequence of this, whilst driving in the car with Ms Reed, Ms Hicks’ states that Ms Reed said ‘I hate lying cunts’ while at the same time glaring at Ms Hicks in the rear-view mirror (Ms Hicks was sitting in the back of the vehicle). Ms Hicks stated she replied ‘who is lying?’ and the response received from Ms Reed was ‘some cunts don’t have to pay rent’, and again glared at Ms Hicks. Ms Hicks stated that Ms Reed continued swearing repeating over and over ‘I hate lying cunts, I fuckin hate those cunts’. It is noted that Ms Hicks lives with her mother and does not pay rent.
Incident 6 - 19 December 2018 - Accusation that Ms Hicks’ cousin had littered at the Jump Up
Rangers, including Ms Hicks and Ms Reed were performing baiting at Withnell Bay. Ms Hicks stated that on arrival to the bay she saw her cousin and greeted him. A little later she introduced her cousin to the other rangers (at that time Ms Reed was with another person changing cards on a motion sensor). When the rangers had finished their work at Withnell Bay they travelled up the Jump Up track where they saw tyre tracks and a bottle on the ground. Ms Hicks stated that Ms Reed turned to her and said ‘tell your mates not to leave their rubbish behind’. Ms Hicks informed Ms Reed that anyone could have left the bottle there, and Ms Reed is said to have replied to the effect that she had seen Ms Hicks’ cousin drinking from the bottle. On arrival back to the office, Ms Hicks said that she told Ms Reed how her comments about her cousin made her feel. The discussion apparently continued until such point that Ms Reed informed Ms Hicks that she disrespected her and ‘stormed off’ without saying a word.
Incident 7 - 19 December 2018 - Argument outside Ms Sharon Hicks’ (the mother) house
After the incident in the office, Ms Reed and Ms Hicks proceeded to depart for home, their workday having concluded. Ms Reed has use of the work vehicle to transport rangers to and from work. On the way home in the vehicle, Ms Hicks asked Ms Reed if she had offended her or upset her. According to Ms Hicks, Ms Reed said that she was not upset and repeated that she should tell her mates not to leave their rubbish around. Words were exchanged during the car ride, and by the time Ms Hicks arrived at her home and exited the car, she says that Ms Reed had descended into a ‘full-on rage where she was totally out of control… calling me a fucking cunt and a fucking useless cunt as well as fuck you.’ 6 Ms Hicks reports that she was verbally abused and physically threatened by Ms Reed.
BACKGROUND
Persons referred to in the decision
[8] To assist the reader listed below are the persons referred to in the decision:
Ms Sarah Hicks |
The applicant; related to three Board members of MAC, and is a friend with another MAC Board member. 7 |
Ms Mariah Reed |
The named person; related to one Board member. 8 |
Ms Sharon Hicks |
Ms Hicks’ mother and cousin of Mr Jeffries. 9 |
Mr Michael Boona |
The uncle of Ms Reed and alleged to have sexually harassed Ms Hicks. |
Ms Cooper |
Board member of MAC. Friends with Ms Hicks. Ms Cooper’s son worked for MAC and made a complaint against Ms Reed for breach of confidentiality when disciplined in relation to his performance. |
Mr Peter Jeffries |
Chief Executive Officer |
Ms Tui Rei Magner |
Corporate Services Manager |
Mr Patrick Churnside |
Unit Coordinator |
Mr Kyle Wilson |
Ranger Coordinator |
Mr Lyndsey McDonald |
Administration Assistant |
Ms Nisha Keetals |
Former General Manager of MAC |
Ms Jasmine Hicks |
Ms Hicks’ sister. |
Organisational structure
[9] At the time of the hearing, MAC employed eight employees, of those six were rangers. 10 As noted, Ms Hicks and Ms Reed are both rangers in the Unit. Their work includes welcoming people to the land and sea country, briefing visitors so that the land, sea country and culture are respected, and ensuring that visitors are accepted by the spirits in the landscape.11 The scope of their duties extends to patrolling the land and sea to monitor visitor impacts, for example ensuring minimal interference of pets on sacred sites, removing rubbish, identification and removal of graffiti on rock art sites and general compliance with the laws of the National Park.12
[10] While there are usually six rangers, at the relevant time there were only four rangers, as one ranger was on long term leave in addition to the Unit Coordinator – Mr Patrick Churnside who had taken leave.
[11] Both Ms Reid and Ms Hicks report to the Ranger Coordinator, who in turn reports to the Unit Manager. 13 As that role is currently vacant, the Ranger Coordinator reports directly to the CEO.14
[12] In respect to corporate governance, the MAC board consists of twelve directors who are elected from five traditional groups that make up MAC. These group are the Ngarluma People, the Mardudhunera People, the Yaburara People, the Yindjibarndi People, and the Wong-Goo-Tt-Oo People. 15 The Murujuga Circle of Elders also provides cultural guidance to MAC, and advice to the Unit on cultural safety and working on Ngurra country.16
[13] For the anti-bullying jurisdiction to be engaged, the Commission must find that a worker has been bullied at work within the meaning of the Act. Section 789FD is in the following terms:
789FD When is a worker bullied at work?
(1) A worker is bullied at work if:
(a) while the worker is at work in a constitutionally-covered business:
(i) an individual; or
(ii) a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
(b) that behaviour creates a risk to health and safety.
(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.
(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:
(a) the person is:
(i) a constitutional corporation; or
(ii) the Commonwealth; or
(iii) a Commonwealth authority; or
(iv) a body corporate incorporated in a Territory; or
(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;
then the business or undertaking is a constitutionally-covered business.
[14] The workplace in this matter is not located in a Territory and there is no suggestion that it is conducted by the Commonwealth or a Commonwealth authority. Assuming for present purposes that the workplace is a business or undertaking within the meaning of the Work Health and Safety Act 2011 (Cth), in order to be a constitutionally-covered business and fall within the scope of s.789FD, it must be conducted by a constitutional corporation.
[15] The term ‘constitutional corporation’ is defined in s.12 of the Act in the following terms: ‘constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies’.
[16] The Australian Constitution refers to ‘constitutional corporations’ as being: ‘[F]oreign corporations, and trading or financial corporations formed within the limits of the Commonwealth’.
[17] Of these types of corporations, only the trading corporation is potentially relevant. I note that there is no suggestion that MAC is not a constitutional corporation, and thereby, a constitutionally-covered business. In preparation for the hearing, the parties submitted a statement of agreed facts in which it is stated ‘MAC is a constitutional corporation’. The parties were, in addition, directed to file submissions and evidence in respect to whether MAC was a constitutional corporation.
[18] The Full Bench in Gregory James Thurling v Glossodia Community Information and Neighborhood Centre Inc. T/A Glossodia Community Centre 17 provided a comprehensive overview of the law on whether a corporation is a trading corporation, starting with the extraordinarily helpful summary provided by Steytler P in the Western Australian Court of Appeal decision in Aboriginal Legal Service (WA) Inc v Lawrence (No 2).18 The principles outlined in those authorities have been adopted and applied when arriving at the conclusion that MAC is a constitutional corporation.
[19] MAC is an Aboriginal Corporation registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (Aboriginal Corporations Act) with the Office of the Registrar of Indigenous Corporations. It was established to administer the implementation of contractual obligations under the terms of the Burrup and Maitland Industrial Estates Agreement (BMIEA), which was entered into by the state government and the Ngarluma-Yindjibarndi, Yaburara Mardudhunera, and the Wong-Goo-Tt-Oo peoples. 19 As part of the BMIEA, land entitlements and financial benefit were granted in return for surrendering native title rights and interest over the Burrup.20 Pursuant to the BMIEA, MAC:
a) holds the freehold title to non-industrial land on the Burrup peninsula in trust for its members;
b) holds the freehold title to commercial and residential land in Karratha; and
c) receives annual compensation from the state government; and
d) co-manages the Murujuga National Park. 21
[20] According to Mr Jeffries, the objective of MAC is to preserve and protect its land holdings for future generations, and support the general welfare of its members now and into the future. 22
[21] Mr Jeffries gave evidence that MAC’s main activities include:
a) co-managing the Murujuga National Park for which it receives payment from the state government (under the BMIEA) and from other non-government organisations as part of the Burrup Conservation Agreement entered into between those organisations and the federal government;
b) leasing of land which it owns on the Burrup peninsula to companies such as Woodside and Yara Pilbara Fertilisers Pty Ltd who carry out commercial activities on the land;
c) renting various residential properties owned by MAC; and
d) provision of cultural and tourist services such as cultural awareness training. 23
[22] The financial statement for MAC for the year ending 30 June 2019 indicates that MAC’s total revenue for the year was $4,568,850 with a profit of $1,272,939. MAC submitted that 38% of its income derived from non-trading activities. 24 Rental income amounted to 31% of MAC’s total revenue and income generated from services provided by MAC, such as fees for ranger services, cultural awareness training, cultural management services, hiring of corporate facilities and fees for services such as cat trapping amounted to 15% of MAC’s total revenue. In short, MAC has advanced that 45% of its income is generated from trading activities.25
[23] Having considered the evidence of the parties and their submissions, I have concluded that the anti-bullying jurisdiction is engaged.
Ms Hicks – a brief background
[24] In support of Ms Hicks’ request to be represented for the purpose of the hearing, Mrs Sharon Hicks submitted that Ms Hicks was diagnosed as having a learning disability in the areas of reading, writing and comprehension in her early years of education. For the whole of her secondary education, Ms Sharon Hicks stated that Ms Hicks was placed in an Exclusive Learning Unit, which was separate from the mainstream classroom. Ms Sharon Hicks submitted that Ms Hicks would become confused when asked questions but was better placed to answer questions when posed by people that she trusted, as this would reduce her anxiety.
[25] It was evident at hearing that Ms Hicks appeared at times to not understand initially what was asked of her, or alternatively, responded in a delayed manner as she processed what was asked. Both Ms Hicks’ representative and counsel for MAC were cognisant of Ms Hicks’ learning disorder/disability, framed their questions accordingly and took great care in ensuring Ms Hicks had understood what was asked of her.
Context regarding the relationship between Ms Hicks and Ms Reed
[26] In December 2017, Ms Hicks lodged a formal complaint with MAC against another employee, Mr Boona. Ms Hicks alleged that Mr Boona had sexually harassed her and as a result of the alleged sexual harassment she ‘went on Workers Compensation’. 26 Ms Hicks returned to work on 7 September 2018. Ms Hicks purports that before returning to work, a fellow employee warned her that Ms Reed and another employee had told her they were going to make it very difficult for Ms Hicks as they wanted her gone from MAC.27 One employee is said to have advised Ms Hicks that Ms Reed was angry with her because she had made a formal complaint against Mr Boona and as a result he was dismissed.28
[27] Ms Hicks said that it was not long after she returned to work that fellow rangers warned her that Ms Reed had it in for her and that they were out to get her. 29
[28] Evidence was given that Ms Hicks was medically unfit to attend the workplace on the following dates:
a) 10 January 2019 to 11 January 2019;
b) 14 January 2019 to 18 January 2019;
c) 20 February 2019 to 11 March 2019; and
d) 11 March 2019 to 25 March 2019.
[29] Ms Hicks gave evidence that from the time she started working, Ms Reed’s behaviour toward her was unwanted and affected her health and safety. 30 Whilst Ms Hicks relied on the aforementioned Incidents as examples of the bullying behaviour she was subjected to, she also spoke of being assigned meaningless work such as washing the work vehicle (a chore never shared between other rangers),31 being spoken down to when offering suggestions and having those suggestion ignored and laughed at,32 teasing about her weight and food consumed,33 and being treated like a personal assistant with Ms Reed ordering her to fetch her cigarettes and get the car keys.34
Reporting Incident 6 and 7 to MAC Management
[30] According to Ms Hicks she attempted on numerous occasions to report Ms Reed’s behaviour to her Manager and Coordinator, but her complaints were ignored. 35 However, it was the events that took place on 19 December 2018 (Incident 7 in particular) that appeared to have been the catalyst for Ms Hicks’ lodgement of this application.
[31] Ms Hicks reported Incident 7 to Ms Magner on the evening of 19 December 2018. 36 Ms Hicks stated that she was too upset to talk to Ms Magner, so her mother, Ms Sharon Hicks conveyed to Ms Magner what had occurred.37
[32] Ms Hicks’ evidence was that following this discussion, she sent an email to Mr Jeffries on 20 December 2018 outlining Incidents 6 and 7. Once at work, she was called into Ms Magner’s office and asked if she would like to make any further statement. 38 Ms Hicks informed Ms Magner that she had already emailed to Mr Jeffries a statement.39
[33] According to Ms Hicks she received a letter from Mr Jeffries on 4 January 2019 confirming that her complaint would be investigated, and by ‘complaint’ Mr Jeffries was only referring to Incidents 6 and 7. 40 In addition, Ms Hicks gave evidence she received two letters from Ms Magner regarding a meeting to discuss Incidents 6 and 7, but again the meeting was not for the purpose of discussing all of Ms Hicks’ complaints against Ms Reed.41 Ms Hicks’ account was that by this stage she was so stressed out and anxious she could not sleep, and feared going into work knowing Ms Reed was there.42 Ms Hicks stated that she declined Ms Magners’ invitations as for months she had been attempting to complain about Ms Reed’s behaviour but no one would listen to her and she thought ‘why should they listen now’.43
[34] Come 13 January 2019, Ms Hicks informed Ms Magner that she was unfit to attend an investigatory meeting and that she wanted the Fair Work Commission to deal with the matter. 44
Workplace investigation
[35] Mr Jeffries gave evidence that on receiving Ms Hicks’ complaint he knew it would need to be investigated. 45 Enquiries were made regarding the engagement of an external investigator.46 Mr Jeffries stated that he received a letter from Ms Hicks’ representative on 2 January 2019. The letter set out that Ms Hicks had been subjected to ongoing bullying and harassment which she had attempted to deal with, and that Mr King (Ms Hicks’ representative) would be drafting a formal complaint, to forward to Mr Jeffries.47 Mr Jeffries noted that he wrote to Ms Hicks on 4 January 2019 acknowledging receipt of her complaint and advised her it would be investigated by management and MAC’s HR provider.48
[36] On 6 January 2019, Mr King emailed Mr Jeffries informing him that Ms Hicks was referring her matter to the Commission. 49 Ms Magner gave evidence that as the employer of Ms Hicks and Ms Reed, MAC considered that it still needed to investigate Ms Hicks’ complaint. Therefore, Ms Magner wrote to Ms Hicks and asked that she complete a grievance lodgement form and return it by 14 January 2019.50 Ms Magner stated that she also provided Ms Reed with a grievance lodgement form, which Ms Reed completed and returned on 14 January 2019.51
[37] On 11 January 2019, Ms Magner wrote to both Ms Hicks and Ms Reed inviting them to meet with an external investigator. 52 Ms Hicks declined the invitation, informing Ms Magner that she was unfit to attend the meeting with the investigator and that she wanted the matter dealt with by the Commission.53 Ms Hicks provided a medical certificate on 14 January 2019 certifying her unfit for work for a period.54 MAC received Ms Hicks’ application to the Commission on 15 January 2019.
[38] On 15 January 2019, the external investigator met with staff members as part of the investigation regarding the complaint made by Ms Hicks.
[39] Ms Magner stated that on 22 January 2019, she wrote to Ms Hicks acknowledging the additional allegations of bullying against Ms Reed that had been included in the application to the Commission. 55 Because MAC was unaware of the additional allegations when the investigation commenced, Ms Magner stated that she contacted the HR consultancy business who had provided the external investigator, to request that someone investigate the additional allegations.56
[40] Having been informed by the HR consultancy business that the earliest the investigator could attend to interviews was on 1 February 2019, and that Ms Hicks was on leave at this time, Ms Magner wrote to Ms Hicks informing her of the allegations that would be investigated and requesting that Ms Hicks notify her if she wanted to meet with the investigator or provide further information. 57 Ms Magner gave evidence that the investigator had informed her that there was sufficient detail in Ms Hicks’ application to the Commission to enable the investigator to make the relevant enquiries regarding Ms Reed and other witnesses.58
[41] Ms Magner’s evidence was that she received a report from the external investigator on 6 February 2019, which showed that Ms Hicks’ allegations had not be substantiated. 59 On that same day, before she could communicate the outcome of the report to Ms Hicks, Ms Magner said that she attended a Commission conference where the investigation report was discussed.60 Subsequent to the Commission conference, it was agreed that a further investigation would be conducted in which both Ms Hicks and Ms Reed would participate. 61
[42] Ms Magner stated that interim work arrangements were put in place so that Ms Hicks would not report into Ms Reed – an arrangement that remained in place by the time the matter proceeded to hearing. 62
[43] An external investigator was engaged, and a meeting was arranged with Ms Hicks on 20 February 2019. 63 However, Ms Hicks was on personal leave and therefore unable to attend.64 Further, Ms Magner stated that Ms Hicks disputed the way in which the investigation was to proceed.65
[44] Ms Magner’s evidence was that she was made aware from MAC’s legal representative that Ms Hicks had made a complaint about her involvement in the investigation process, and therefore it was decided that further correspondence would go through Mr Jeffries. 66 However, it is noted that Mr Jeffries gave evidence that he reviewed Ms Magner’s handling of Ms Hicks’ initial complaint (Incident 6 and 7) and considered that she had not done anything inappropriate in terms of the way that she had handled it.67 Mr Jeffries stated that Ms Manger still assisted with the coordination of the investigation, because as CEO he was not able to be heavily involved in the day-to-day operational issues.68
[45] Mr Jeffries gave evidence that by April 2019, he was informed by MAC’s legal representative that an agreement had been reached with Mr King about how the investigation would be progressed. 69 Mr Jeffries stated that Mr King sent him copies of documents via email, but due to an oversight on his behalf he failed to see the email and did not provide the investigator the documents until the day on which the investigator met with Ms Hicks.70 The meeting with Ms Hicks took place on 9 May 2019.71 Later in May 2019, Mr Jeffries received the report from the investigator which had arrived at the finding that Ms Hicks’ complaint about Incident 6 and 7 could not be substantiated.72 Letters were provided to Ms Hicks and Ms Reed to inform them that the investigation had been concluded.73
[46] Ms Hicks’ remaining allegations were investigated, notwithstanding that Ms Hicks had disputed the steps taken by MAC to investigate her complaint. 74 Mr Jeffries’ account is that Ms Hicks informed him that she had requested that the Commission arbitrate the matter and that he informed her that MAC would continue the investigation into the issues she had raised in her application.75 A further investigation report was provided to MAC on 11 September 2019, which outlined the finding that the allegations in Ms Hicks’ application to the Commission could not be substantiated.76
Evidence of Ms Reed
[47] While Ms Reed was provided with the opportunity to file witness statements, submissions and any other documentation she wished to rely upon, she was content to rely upon the statements given during the investigations that MAC had arranged (see Summary of Investigation 1 February 2019), 77 and on the grievance report she had filed regarding the incident on 19 December 2018. Ms Reed attended the hearing and provided further clarification regarding her evidence. In short, Ms Reed gave the evidence set out below.
Incident 1 - The Christmas Party 2018
Ms Hicks reported that at the Christmas Party in 2018, Ms Reed asked her about a conversation she had had with another attendee, Ms Cooper. Ms Hicks states that she informed Ms Reed that she had told Ms Cooper that she had not reported the man who was said to have sexually assaulted her to the police (Mr Boona). There was further discussion and Ms Hicks stated that Ms Reed then proceeded to say that Ms Cooper was a ‘fucking liar always out to cause trouble she was nothing but a cunt’.
Ms Reed denies that was a discussion where she said Ms Cooper was a ‘fucking liar always out to cause trouble she was nothing but a cunt’. Ms Reed gave evidence that after the Elders had left the Christmas Party, she had started to clean up with a lady called ‘Diana’. Ms Hicks approached her and Diana; Ms Hicks was crying and upset. Ms Reed asked Diana to speak to Ms Hicks as she was not sure that Ms Hicks would want to speak to her, and Ms Reed continued to clean. Ms Reed later returned to Diana and Ms Hicks and asked what was wrong. Ms Reed’s evidence was that she did not swear or call Ms Cooper the things referred to in Ms Hicks’ statement. Further, Ms Reed stated that she knew Ms Hicks was still hurting from the incident with Mr Boona and would not have gone out of her way to inflict pain, stress, or anxiety.
Incident 2 - Conduct in front of tourists
Ms Reed stated that the circumstances of Incident 2 did not occur. 78 Ms Reed’s evidence was that she was speaking to one of the ladies with the tour group and was laughing with the chatter but was not laughing at Ms Hicks.79 Ms Reed denies calling Ms Hicks a ‘stupid dumb cunt’.80
Incident 3 - The photo shoot
Ms Reed gave evidence to the investigator that she did not recall pushing Ms Hicks into another male ranger. 81 Ms Reed confirmed that the Coordinator had not spoken to her about the alleged incident.82 According to Ms Reed everyone joked about in the workplace and she did not remember doing anything intentionally to harm Ms Hicks; but outlined she did not remember doing it at all.83
Incident 4 - Making a rude finger
The evidence of Ms Hicks was that Ms Reed will regularly single her out and stick the middle finger up at her, making sure it is seen by others in the workplace. Sometimes the gesture is accompanied by the statement ‘fuck you’.
According to Ms Reed, Ms Hicks had approached her about this matter and informed her that she did not like the behaviour. 84 Ms Reed stated that she apologised to Ms Hicks and did not do it again (from around November or early December 2018).85 By way of context, Ms Reed stated that all the rangers ‘get along like this as they’re family’, and that Ms Reed behaved like this with the rangers during her break.86
Incident 5 - In the car – ‘some cunts don’t have to pay rent’
Ms Reed’s evidence was that there was another lady in the car, ‘Diana’, and all three (Ms Reed, Ms Hicks and Diana) were travelling to Roebourne to set up for a meeting. Ms Reed reported she was talking to Diana who was in the front passenger seat, but was looking in the rear view mirror at times because there were lots of turns in the road and was making sure it was safe. Ms Reed stated that when she was saying ‘some cunts don’t have to pay rent’ she was not glaring at Ms Hicks (she was unaware of Ms Hicks’ personal living situation) and she had other things going on in her personal life, which she was talking to Diana about.
Incident 6 - 19 December 2018 Accusation that Ms Hicks’ cousin had littered at the Jump Up and Incident 7 - 19 December 2018 Argument outside Ms Sharon Hicks’ (the mother) house
a) Between 3.30pm – 4.30pm Ms Reed had a conversation with Ms Hicks in which she said ‘can you tell your mate to stop leaving there [sic] rubbish behind and take it with them’, and Ms Hicks replied ‘they are bot [sic] lile [sic] that, he wouldn’t do that’. After Ms Hicks had said that, Ms Reed states that she said ‘he was drinking that alcohol I had remember [sic] the stubbie but that’s [sic] okay, all good’.
b) On arriving back to the MAC headquarters (4.20pm – 4.30pm), Ms Hicks said to Ms Reed (ranger Brandon was said to be present) ‘you guys know I wouldn’t disrespected [sic] your family so can you not do that to my family’. Ms Reed said that at this time she did not know what Ms Hicks was talking about. Ms Hicks explained that the gentleman was her cousin and Ms Reed said she told Ms Hicks – how was she meant to know that. Ms Reed stated that Ms Hicks wanted an apology but she declined to give one and said to Ms Hicks ‘i [sic] didn’t know that was your family and whats [sic] done is done i [sic] didn’t speak to you in disrespect i [sic] had only spoken to nicley [sic] so im [sic] not going to say sorry and i [sic] had walked away to go ro [sic] the toilets’.
c) However, then Ms Hicks said to her, ‘Mariah i [sic] didn’t like the way you spoke to me about my family, I dont [sic] disrespect your family can you not do it to mine’. Ms Reed stated that ‘during this time she had cutten [sic] in and turned around and said to me “no i [sic] let you talk now its time for me to talk so listen to me”’. Ms Reed added that she stated to Ms Hicks ‘excuse me Sarah don’t [sic] speak to me like im [sic] some little kid and I have to be quite [sic] for you to talk i [sic] told you that i [sic]didn’t know that was your family so im [sic] not going to say sorry and plus now that you have spoken to me like a kid i [sic] refuse to say anything to you’. The conversation continued with Ms Reed declining to apologise and Ms Hicks stating ‘fine we will drop it and not worry about it and put it behind us’.
d) On arrival at Ms Hicks’ house Ms Reed stated that she saw Ms Hicks’ mum and sister standing at the front door waiting and then Ms Hicks stated to her ‘i [sic] hope we can drop this and dont [sic] worry about it otherwise if there is a problem we will take it to management’. Ms Reed’s evidence was that she told Ms Hicks that she was not going to drop it as she had been spoken to like a child, but she did not need to take it to management or make a big deal out of it. Ms Reed’s evidence was that Ms Jasmine Hicks, Ms Hicks’ sister, approached the car and stood at the front of the car, and Ms Reed asked Ms Hicks whether she had called her mum and sister. Ms Reed stated that she felt threatened as Ms Sharon Hicks and Ms Jasmine Hicks were there. Ms Hicks is said to have asked her sister to go back in side (but she did not go back inside the house). Ms Hicks jumped out of the car, stood near the driver’s door and according to Ms Reed demanded that she apologise for speaking to her with disrespect. Ms Reed said that Ms Sharon Hicks then had to restrain Ms Hicks; Ms Hicks was yelling and crying and Ms Reed could not understand what she was saying. Ms Reed drove off. 87
[48] The assignment of meaningless tasks to Ms Hicks, was denied by Ms Reed. Ms Reed continued that she did not put Ms Hicks down in front of her colleagues, did not swear at her and could not recall the suggestion made by Ms Hicks concerning plant and vegetation recordings. Ms Reed stated that she did not disparage and denigrate Ms Hicks.
[49] Work colleagues of Ms Reed and Ms Hicks were not called to give evidence at the hearing. However, I have nevertheless drawn upon content of the Summary of Investigation 1 February 2019, 88 in which some of the work colleagues of Ms Reed and Ms Hicks have provided general comment regarding the nature of their relationship. The difficulty of course lies in the weight to be attributed to such evidence – particularly in circumstances where this evidence cannot be tested.
[50] The evaluation of such evidence should be viewed in light of s.591 of the Act, which provides that ‘[T]he FWC is not bound by the rules of evidence and procedure in relation to a matter before it (whether or not the FWC holds a hearing in relation to the matter)’. Although the rules of evidence do not apply in the strictest sense, they provide a method of enquiry formulated to elicit the truth and prevent error, and therefore cannot be set aside in favour of a course of enquiry which necessarily advantages one party and necessarily disadvantages the opposing party. 89 In short, the rules of evidence provide general guidance as to the manner in which the Commission chooses to inform itself.90
[51] I consider there is value in traversing that which has been reported to the external investigator. The purpose for doing so is to illuminate how others perceived the relationship between Ms Reed and Ms Hicks. The Incidents after all did not occur in a vacuum, or over a short period. Some of the Incidents are unable to be placed chronologically, or they are unable to be corroborated – or, if corroborated, a question remains concerning witness credibility, particularly where there are familial relations.
[52] When asked to describe the relationship between Ms Reed and Ms Hicks, Mr Conrad Aubrey, Ranger, stated ‘It’s not a perfect relationship, you do see tensions between the two. I haven’t seen any squabbles and haven’t seen anything as I’m not usually there when things do go down but there is tension’. 91
[53] Mr Brandon Lockyer, another Ranger, stated ‘It’s unhealthy, you can feel the tension between them. Any chance they get they try to make each other look bad. We’re meant to be a team. When we started it was good, I don’t know what happened. I’ve witnessed arguments and I try not to get involved…’. 92 Mr Lockyer referred to an argument between Ms Hicks and Ms Reed where he could hear ‘they were slinging each other off, shouting, swearing etc’.
[54] Mr Kyle Wilson, Ranger Coordinator, is reported as having said that ‘it was obvious the two (Ms Hicks and Ms Reed) did not get along from the beginning of employment. He described Ms Hicks as a timid individual who takes offence to things most people would not. Mr Wilson acknowledged that Ms Hicks used to make quite a few complaints to him which he discounted a lot. It is reported that he explained to the investigator that if the conduct did occur (presumedly the conduct complained of ‘committed by Ms Reed), it would have been in jest and not aggressive.
[55] While this evidence is unable to be tested, the observations expressed do not appear disparate to some of accounts provided at hearing, namely, that there was personal animosity between Ms Hicks and Ms Reed.
Current working arrangements – at the time of hearing
[56] Mr Jeffries gave evidence that while MAC had initially put in place arrangements following Ms Hicks’ complaint about Ms Reed to ensure wherever possible that the two of them did not work alone together, it had, as at the time Mr Jeffries prepared his witness statement, been difficult to maintain the arrangements because of the limited number of rangers. 93
[57] Mr Jeffries confirmed that in the absence of a Unit Coordinator, both Ms Hicks and Ms Reed were reporting to him, and he had observed that when the two had been working together they appeared to be doing so collaboratively. 94 With respect to observing Ms Hicks and Ms Reed, Mr Jeffries clarified he sat on one side of the office and the rangers and the rest of the staff sat in the middle and toward the end of the office. Mr Jeffries stated that ‘periodically throughout the day I go outside my office to have a look at my staff, generally speaking, or speak to other staff, and the observations that I made at a particular time was that they were, you know, getting on’.95
Steps MAC is taking to address the workplace culture
[58] At hearing Mr Jeffries was asked whether MAC had any plans to do anything around human resources and culture. Mr Jeffries gave the following evidence:
We've - we've had a number of meetings, I think, where we've had employees who will come and do a presentation on - on the expectations surrounding bulling and what is - what is constituted as bullying and - and, you know, what is not acceptable and acceptable behaviours in the workplace.
Yes, we - we are in the process of engaging a legal firm, called Jackson McDonald, to come in and provide that strategic overview around trying to fix, I think, the culture in the organisation and - and sort of bring all of the policies and procedures into something that I see as beneficial for the organisation, you know, in its long-term future.
What is it that you want fixed?---
I - the behaviours in the organisation, I think, I want fixed, from the very top, I think, where there's - there's no clarity around what is reasonable expectation or behaviour expectations of staff within the workplace. This is from my - from my brief - I wouldn't say brief, from my observations over the last 18 months, I think. It's something that I believe has been a cultural insertion of, I think, bad behaviour that's been allowed to fester and - and continue to fester and - and management not having or not being able to - to - to adequately - do deal with it in a timely fashion that I think is considered to be, you know, what is expected of, you know, organisations that are - that are, you know, maturer than - than, you know, MAC. 96
[59] For this type of application, an applicant must be a ‘worker’ (which we traversed at paragraph 13 of this decision) and must ‘reasonably believe’ that she or he has been bullied at ‘work’.
[60] For the belief to be considered ‘reasonable’, it must be one that is actually and genuinely held, as well as it being reasonable in an objective sense. 97 When speaking of an ‘objective sense’ it has been said that this in turn means ‘there must be something to support it or some other rational basis for the holding of the belief and it is not irrational or absurd’.98
[61] In the decision of Mac v Bank of Queensland Limited & Others 99 (BOQ), the Vice President provided a detailed analysis of the term ‘reasonable belief’ by way of a series of examples.100 The Vice President expressed that those examples illustrated the way in which the Commission should approach the task of considering whether the applicant worker has the requisite reasonable belief such as to confer standing to make an application under s.789FC of the Act. The examples were:
a) Federal Court rules concerning applications for preliminary discovery, require that the applicant hold a reasonable belief there may be a right to obtain relief against another person not presently a party to a proceeding in the Court; it has been held that there must be some tangible support that takes the existence of the alleged right beyond mere ‘belief’ or ‘assertion’ by the applicant or that there must be some evidence that inclines the mind towards the matter of fact in question.
b) a NSW statutory provision prohibiting legal practitioners from providing legal services on a claim or defence of a claim for damages unless the practitioner reasonably believed that the claim or defence had reasonable prospects of success; it has been held that the practitioner’s belief that there was material which justified proceeding will not be reasonable if it unquestionably fell outside the range of views which could reasonably be entertained.
c) in relation to the concept of a ‘reasonable hypothesis’, it has been held that in order to be a reasonable one a hypothesis must be rationally based and possess some degree of acceptability or credibility, and must not be irrational, absurd or ridiculous. 101
[62] In the introductory paragraphs of this decision, I referred to Ms Hicks as having learning difficulties. Such difficulties were expanded upon in the evidence of her mother, Ms Sharon Hicks, who spoke of the support that Ms Hicks had required throughout the entirety of her education. There was no reason to doubt Ms Sharon Hicks’ evidence in this respect. She is Ms Hicks’ mother and had been her primary care giver, which imbued her with first-hand knowledge of Ms Hicks’ education and challenges. While Ms Hicks chose not to lead any direct evidence about her learning difficulties, I considered the evidence of Ms Sharon Hicks compelling, and it aligned with my own observations of Ms Hicks whilst giving evidence.
[63] While giving her evidence, there were times when Ms Hicks required questions to be re-framed, or additional time to be provided, to enable her to cognitively process the question asked of her – this was evident. Both the representative of Ms Hicks and Counsel for MAC intuitively adopted an approach which permitted Ms Hicks to give her best evidence.
[64] I was left in no doubt that Ms Hicks was competent to give evidence and understood the oath she took, notwithstanding her learning difficulties. Yet, there was something stated in the Summary of Investigation Report 1 February 2019, 102 which resonated. Mr Wilson had been interviewed about the issues percolating between Ms Reed and Ms Hicks. The investigator recorded that Mr Wilson observed:
Ms Hicks is quite a timid individual who takes offence to things most people wouldn’t. Ms Hicks is very young and fragile. 103
[65] As is acknowledged in the submissions of MAC, Ms Hicks did her best in giving her evidence. MAC made no suggestion that Ms Hicks was not honest in her answers in response to the questions that were asked of her. Further, Counsel for MAC observed that Ms Hicks appeared to understand the proceedings and the questions asked, and would agree and disagree with propositions put to her appropriately and in a clear manner.
[66] As was observed in BOQ, 104 it is anticipated that in most cases there will be no dispute as to whether the applicant reasonably believes she or he has been bullied at work such as to permit the making of an application under s.789FC(1).105 The Commission will be able to find without difficulty that the first prerequisite in s.789FF(1) is satisfied.106 However, in this case MAC contested whether the belief held by Ms Hicks was reasonable, and in my view, understandably so.
[67] The question whether Ms Hicks had a ‘reasonable’ belief that she had been bullied at work was a live issue in circumstances where some of the evidence indicated, for want of a better term, an inherent ‘hypersensitivity’, an inability at times to understand or appreciate the broader context, and a propensity to create an internal narrative which, again at times, was really unavailable on the evidence - at any objective level.
[68] Ms Hicks gave evidence that just prior to her commencing a return to work program (having had a period off work), Ms Nisha Keetals, former General Manager of MAC and support person for Ms Hicks during a sexual harassment matter, visited Ms Hicks and Ms Sharon Hicks at home. 107 It appeared that at the time (the evidence is suggestive of a date on or around 27 November 2018) Ms Keetals brought two documents with her for Ms Hicks, a policy about bullying in the workplace, and a procedure about bullying in the workplace.108 Further, it was either at this time, or another time, that Ms Keetals was said to have warned Ms Hicks to be careful of two employees – Ms Reed and Mr Lyndsey.109 According to Ms Hicks, Ms Keetals warned her that the two employees were going to make it very difficult for her when she returned to work as they wanted her gone from MAC – the reason, they were friends with Mr Boona and were angry that Ms Hicks had complained about being sexually harassed by him.110
[69] Under cross examination Ms Hicks gave evidence that outlined her preconceptions of Ms Reed:
Do you happen to remember whether that date that you signed it was before or after you had the conversation with Ms Reed about the rude finger?---So the conversation that I had with her before I had this?
Before this. So it was earlier than 27 November?---I think it was before this.
Yes, okay. Now when Neesha came to see you at home, one of the times she came to see you, you had a conversation with her about Mariah and Lindsay McDonald. Was that the same day that Neesha gave you the policies and procedures?---I can't be sure.
No, okay. You believed what Neesha told you about Mariah intending to make work difficult for you?---Yes.
She was giving you a warning?---Yes.
That's how you saw it?---Yes.
So when you went back to work, that was July 2018 that you went back to work, is that right?---I think so, yes.
That was part time, initially?---Yes.
And then full-time from September 2018?---Yes.
So when you went back to your work, to work in July, in your mind, Mariah had it in for you?---Yes.
Is it fair to say you were anxious about being around her for that reason?---Yes.
And that you paid quite close attention to how she was behaving towards you?---Yes.
And you were expecting her to be mean to you?---Yes.
Because naturally when somebody gives you a warning that something might happen, you're on the alert for it to happen?---Yes. 111
[70] While it was the case that Ms Hicks had learning difficulties or challenges and had an evident preconception of Ms Reed as outlined above, I am nevertheless persuaded that there were purported interactions between Ms Hicks and Ms Reed that were sufficient to ground Ms Hicks’ belief about being bullied at work, as a belief that was reasonable. In this respect I refer to Incidents 4 and 7, the purported repetitive use of language such as ‘fuck’, ‘cunt’, ‘stupid dumb cunt’, ‘fuck off’, and ‘some cunts don’t have to pay rent’. If an employee chooses to adopt such language in a workplace then they arguably have already placed themselves at risk of some form of complaint. However, in the circumstances of this matter the salient point is that at least some of the evidence before me, as cited, allows me to conclude that Ms Hicks reasonably believed she had been bullied at work such as to permit the making of an application under s.789FC(1).
The Incidents and other behaviour
Incident 1 - The Christmas Party 2018
[71] There was an evident disparity between the accounts of Ms Hicks and Ms Reed concerning what occurred during the course of Incident 1. While it is difficult to arrive at a finding as to whether Ms Reed referred to the attendee, Ms Cooper, as a ‘fucking liar’ who had a propensity to cause trouble because she was ‘nothing but a cunt’, it is apparent that if Ms Hicks’ version of events is to be believed then the disparaging language utilised by Ms Reed, was not directed at her, but was referencing another individual. Ms Hicks observed that during the discussion, Ms Reed ‘became angry and she rolled her eyes and commenced swearing at the same time defending Michael Boona…’. 112 However, what is key, in my view, as to what occurred, is that if any anger was displayed by Ms Reed, it was not directed toward Ms Hicks, but rather harboured in respect of Ms Cooper. Ms Hicks herself confirmed ‘I – I wasn’t really sure who she was talking about, but it wasn’t appropriate for a work environment’.113 Based on the evidence before me, I cannot find that the alleged behaviour as outlined by Ms Hicks occurred, and if I am wrong and it did occur, it does not form part of the behaviour of being ‘bullied at work’.
Incident 2 - Conduct in front of tourists
[72] Ms Reed stated that the circumstances of Incident 2 did not occur, with the exception that she noted that she had laughed with a group of tourists but that such laughter was not directed to Ms Hicks. Further, Ms Reed denies calling Ms Hicks a ‘stupid dumb cunt’. 114 From the accounts provided, I am unable to find that Ms Reed was laughing at Ms Hicks, was making fun of Ms Hicks or that, if any disparaging language was used, it was so directed toward her. Ms Hicks has submitted that Ms Reed’s response to the allegation is an attempt to discredit Ms Hicks in order to hide her own discrepancies of repeated unreasonable conduct toward Ms Hicks, however, I do not accept that submission. Specifics of such discrepancies were not detailed, and Ms Reed’s evidence in this respect was seemingly unchallenged.
Incident 3 - The photo shoot
[73] While Ms Hicks asserts that Ms Reed deliberately pushed her with force into a male ranger and laughed loudly, Ms Reed gave evidence to the investigator that she did not recall pushing Ms Hicks into another male ranger. 115 At hearing, Ms Reed revealed that she was coordinating the set up of the photo with another person, and a timer was utilised on her mobile to obtain the shot. Ms Reed explained that ‘we just all bunched in together where we were comfortable and we took the photo’.116
[74] However, and regrettably, no other witnesses were called to corroborate that which was asserted by both Ms Hicks and Ms Reed, therefore making it difficult to discern the events that occurred. In such circumstances, I cannot on balance arrive at a finding that Ms Reed deliberately pushed Ms Hicks into another ranger and laughed loudly.
Incident 4 - Making a rude finger
[75] Having considered the evidence of both Ms Hicks and Ms Reed, I have found that Ms Reed stuck up her ‘rude’ finger at Ms Hicks, however the context was such that the gesture was not directed only to Ms Hicks. While Ms Hicks stated that Ms Reed would regularly single her out and make the gesture (in addition to stating ‘fuck you’), Ms Hicks was asked by Counsel, ‘I think your evidence was that it wasn’t just you that the finger would be pulled at, it would be other co-workers, as well’. 117 Ms Hicks responded ‘yes’.
[76] Ms Reed gave evidence that on the occasion Ms Hicks had referred to in her application, the making of the rude finger was not supported with a ‘fuck you’ comment. However, Ms Reed clarified that it was with regard to that particular incident that she did not say ‘fuck you’ to Ms Hicks or any of her other co-workers. 118 Ms Reed appeared minded to differentiate the incident referred to in Ms Hicks’ complaint with others – the inference perhaps being that there had been other occasions where the making of the rude finger was occasioned with a ‘fuck you’ statement.
[77] However, after Ms Hicks discussed with Ms Reed her consternation regarding the making of a rude finger, Ms Reed informed Ms Hicks she would stop doing it. Ms Hicks confirmed this was the case, but only when cross-examined on the point. 119 Initially, Ms Hicks gave evidence that her discussion with Ms Reed did not go well – her evidence less than fulsome. It follows that if there is an account to be believed, then that account must be that of Ms Reed.
[78] As to the effect of context, this appeared to be lost on Ms Hicks. Counsel asked Ms Hicks, ‘[S]o when she pulls her finger up, is it in a fun way, is it a fun and sort of jesty(sic) way, or is it - - -?---Does it really matter whether it's a fun or jesty way? It's still bad’. 120 Counsel continued, ‘[S]o you think it's bad no matter what - - -?---Yes’. It was evident that Ms Hicks’ held the view that the making of a rude finger should never happen, regardless of who it was between, or whatever the context it was.121
[79] The behaviour that Ms Reed engaged in within the workplace cannot be condoned or excused. The making of the rude finger at colleagues and telling those same colleagues to ‘fuck off’ (should the swearing have occurred) was improper conduct. However, it cannot be said that the Ms Reed’s conduct was directed toward Ms Hicks, or was such – given the context, that it was victimising, humiliating, intimidating or threatening. Further, it now having desisted, there is not the requisite risk to health and safety.
[80] In the circumstances, it cannot be concluded that Ms Reed’s behaviour formed part of the behaviours constituting being bullied at work.
Incident 5 - In the car – ‘some cunts don’t have to pay rent’
[81] Ms Hicks’ account regarding Incident 5 was that Ms Reed had stated ‘I hate lying cunts’, and ‘some cunts don’t pay rent’. Ms Hicks confirmed that she was sitting in the back of the car, whilst Ms Reed was having a conversation with a lady called ‘Diana’ in the front of the car. There was no evidence given that Ms Hicks was referenced in the conversation. When asked if Ms Reed was talking directly to her, Ms Hicks responded ‘No, but it felt like it was’. 122
[82] Ms Hicks explained that Ms Reed was looking in the rear view mirror whilst talking, and as she thought Ms Reed was talking about her because she was the only one that lived at home with her mum and sister. 123 However, it was Ms Reed’s evidence that she was not glaring at Ms Hicks (she was unaware of Ms Hicks’ personal living situation regarding rent) and she had other things going on in her personal life, which she was talking to Diana about.
[83] Ms Hicks has premised her complaint on her feeling that Ms Reed was talking about her, her observation of Ms Reed looking in a rear view mirror, and an assumption that Ms Reed was aware of Ms Hicks’ living arrangement with her mother. Objectively speaking, it is difficult to arrive at a conclusion that there is or was a rational basis for holding the belief, or feelings, that Ms Hicks had. Based on the evidence before me, it is not open to conclude on balance, that Ms Reed was directing any of her comments toward Ms Hicks – and as such the case is not made out that this conduct formed part of what otherwise would be considered being bullied in the workplace.
Incident 6 - 19 December 2018 Accusation that Ms Hicks’ cousin had littered at the Jump Up and Incident 7 - 19 December 2018 Argument outside Ms Sharon Hicks’ (the mother) house
[84] With regard to Incident 6, I am of no doubt a discussion ensued between Ms Hicks and Ms Reed, after Ms Reed had informed Ms Hicks to, in effect ‘tell her mates not to leave their rubbish’ and this was said in front of others. I consider it more likely than not that on arriving back to the MAC headquarters, Ms Hicks said to Ms Reed ‘you guys know I wouldn’t disrespected [sic] your family so can you not do that to my family’.
[85] Having considered the evidence of both Ms Reed and Ms Hicks, concerning the purported dialogue that ensued, I am again in no doubt that:
• Ms Reed said that at this time she did not know what Ms Hicks was talking about;
• Ms Hicks explained that the gentleman was her cousin;
• Ms Reed told Ms Hicks – how was she meant to know that;
• Ms Hicks requested an apology because she considered that Ms Reed had spoken about her family in a disrespectful manner
• Ms Reed stated that Ms Hicks wanted an apology but she declined to give one and said to Ms Hicks ‘i [sic] didn’t know that was your family and whats [sic] done is done i [sic] didn’t speak to you in disrespect i [sic] had only spoken to nicley [sic] so im [sic] not going to say sorry and i had walked away to go ro [sic] the toilets’.
[86] Having carefully scrutinised the evidence of Ms Hicks and Ms Reed, there is little doubt, in my view, that both Ms Hicks and Ms Reed descended into an argument about Ms Reed’s refusal to provide an apology when persistently requested by Ms Hicks. Furthermore, Ms Reed appears to have become upset by the tone adopted by Ms Hicks when an apology was sought. From the two accounts given, I am struck by the detail provided by Ms Reed, who included detail that did not necessarily portray her in a pragmatic light – such as her obstinate refusal to proffer an apology in circumstances where it was apparent that Ms Hicks’ agitation was escalating.
[87] The conduct complained of must, in my view, be viewed in context. In Katherine (Kate) Burbeck v Alice Springs Town Council; Georgina Davison; Skye Price; Clare Fisher 124 the Commissioner observed:
However, not all arguments or occasions of loud or raised voices can or should be characterised as breaches of codes of conduct and the like. They may simply be arguments. To consider all arguments, loud or raised voices as breaches of codes of conduct and the like would be to import standards of conduct into workplaces that simply are not the standards to be expected of citizens in other parts of their lives. Much depends on the context of what happened. 125
[88] I have considered the evidence of Ms Jasmine Hicks and note that her first impression was that Ms Reed and Ms Hicks were arguing as she could hear screaming and yelling. 126 Ms Sharon Hicks gave evidence that having gone to see what was happening outside, Ms Jasmine Hicks informed Ms Sharon Hicks that ‘Sarah and Mariah Reed were arguing but she did not know what the argument was about but however she could see that Mariah Reed was extremely angry’.127 While both Ms Jasmine Hicks and Ms Sharon Hicks gave evidence to the effect that Ms Hicks was a passive recipient who was subjected to Ms Reed calling her a ‘cunt’ several times, I am appreciative of their relationship to Ms Hicks and am not persuaded that there evidence is untainted by a modicum of bias.
[89] It must also be noted that whilst Ms Hicks and Ms Reed were in a MAC vehicle for part of Incident 7, when Ms Jasmine Hicks and Ms Sharon Hicks observed the interaction between the two, it was the case that Ms Hicks was outside the residential property of her mother. While I consider that in the context of Incident 7 little turns on this point, the Full Bench in Sharon Bowker; Annette Coombe; Stephen Zwarts v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The Victorian Branch and Others 128 concluded that the concept of being ‘at work’ encompasses both the performance of work (at any time or location) and when the worker is engaged in some other activity which is authorised or permitted by their employer.129 Both Ms Hicks and Ms Reed were permitted to use the MAC vehicle to transfer them to and from work. It follows that in these particular circumstances, I am content to conclude Ms Hicks was ‘at work’ when Incident 7 occurred. However, I again reiterate that whilst I have found there to have been an argument between the two, it is not the case that the conduct amounted to being bullied at work.
[90] With regard to the following conduct that is purported to constitute bullying within the workplace (identified by italicised headings), I have formed the view that there is an insufficient evidentiary basis for finding that such conduct occurred.
Ms Reed continually swears in front of Ms Hicks … calling her amongst another things a ‘fucking useless cunt’ or a fucking dumb cunt
[91] Without wishing to diminish the seriousness of that which is asserted, there is no substantive evidence about the assertions made, and there is evidence concerning when or where the conduct occurred, or detail concerning co-workers that witnessed the events. No evidence was called in this respect to substantiate the assertions made.
The Respondent continually puts down Ms Hicks in front of work colleagues and ignores Ms Hicks’ suggestions (reference made to plant and vegetation recordings)
[92] Counsel for MAC submitted that the evidence about the allegation was limited to the contents of the allegation itself and notably there was no evidence as to what conduct constituted ‘making fun of’, what conduct amounted to ‘completely ignoring’ Ms Hicks, other witnesses were not identified or called, and there was no evidence as to when the suggestion(s) were made – particularly those pertaining to the recordings. While Ms Hicks appears to be contending that it was a deliberate strategy on Ms Reed’s part to put her down in front of colleagues and ignore her suggestions, based on the evidence before me such a finding cannot be made.
Ms Reed has a habit of throwing objects around the ranger’s office and most of the time her aim is directed at Ms Hicks – the bassinet example
[93] While I am hesitant to repeat myself, I note again, as MAC have submitted, the evidence about the allegation was limited to the contents of the allegation itself. There was a paucity of evidence to support the assertion made, and while there appears to have been a witness to the throwing or tossing of a bassinet, no further evidence was adduced by Ms Hicks in this respect.
[94] Ms Reed gave evidence that the only thing that her and Ms Hicks’ threw at each other were ‘Minties’, and on occasion a pen. Concerning the bassinet, Ms Reed gave evidence that she recalled the day in question. According to Ms Reed, the rangers were cleaning some rooms out in the top rangers’ quarters. Ms Reed confirmed that there was a big pile of rubbish and she had tossed a bassinet and rubbish out of the way and over the pile of rubbish to clear a pathway to move around in. Ms Reed stated that she did not recall the object being directed at anyone and that a male ranger was near by (Mark or Brandon).
[95] While it appears that a bassinet was tossed, I am not persuaded that it was done so such that it was aimed at Ms Hicks. Similarly, I am not satisfied that pens were thrown in such a manner other than to provide pens to one another across an office space.
Leaving Ms Hicks deliberately alone in the work vehicle for 10 to 15 minutes
[96] Ms Reed conceded that she had left Ms Hicks alone in the work vehicle for five or so minutes but had not done so deliberately. By way of context, Ms Reed explained that the work vehicle is used to drop the rangers off home after work. Ms Reed stated that she would drop off a ranger to the house where a ‘Lyndsey McDonald’ lived and would stop to talk to Lyndsey while Ms Hicks remained in the car. However, Ms Reed stated that she left the car going and at no time had Ms Hicks said that she needed to get home.
[97] I am not satisfied in the circumstances that more likely than not the conduct of Ms Reed was such that it formed part of being bullied at work. While the conduct could be characterised as unthoughtful or selfish, because Ms Reed appeared to lack an appreciation that Ms Hicks may have wanted to go directly home after having worked for the day – the conduct does not, in my view, fall within the features which one might expect to find in a course of repeated unreasonable behaviour that constituted bullying at work.
Ms Reed was talking to Lyndsey McDonald, looked at her phone and stated look at whose been trying to call me ‘Uncle Gucci’ (Michael Boona) and showed the phone to Lyndsey whilst saying I miss him too and glared angrily at Ms Hicks
[98] As is the case with the other assertions Ms Hicks has raised and relied upon to form her application, the substantive evidence is limited to the contents of the assertion. Ms Reed’s evidence was that the account which Ms Hicks gave never happened as detailed. In the circumstances I am unable to conclude that it did.
Ms Reed makes fun about the food Ms Hicks eats and teases her about her weight – making Ms Hicks feel fat and ugly
[99] Understandably, people are at times plagued by insecurities about their physicality. While none of us are perfect, and perhaps there should be no such concept as ‘normal’, regrettably a focus on weight is not at times looked at from the perspective of health and well-being, but rather from vanity, or to be used as a way to disparage. Clearly, no one can make another person feel a certain way. Feelings after all emanate from oneself – one would think. However, teasing about food and weight, in certain contexts, could readily fall within conduct that constitutes being bullied in the workplace. However, as is the case with the other assertions Ms Hicks has raised and relied upon to form her application, the substantive evidence is limited to the contents of the assertion itself, and I am unable to arrive at a finding that the conduct occurred.
Instructions to do meaningless work – such as cleaning the car (while colleagues sit around doing nothing)
[100] It was Ms Reeds’ evidence that she ‘gets all the guys (in the ranger team) to wash the vehicles’ and she washes her own vehicle. The evidence before me was insufficient to persuade that, first, washing the car was meaningless work and, second, that Ms Hicks was the only ranger to perform this work, or was required to perform it a greater proportion of the time than the other rangers.
Ms Reed treats Ms Hicks as her personal assistant demanding she fetch keys and cigarettes
[101] As is the case with the other assertions Ms Hicks has raised and relied upon to form her application, the substantive evidence is limited to the contents of the assertion. While Ms Reed admitted to instructing Ms Hicks to collect car keys, it does not appear to be a request, whether considered in isolation or against the backdrop of other assertions levelled, that seems unreasonable.
Further consideration of other elements
[102] As will be evident form the aforementioned findings and conclusions drawn, I am unconvinced that the evidence can lead to a conclusion that Ms Reed’s behaviour was unreasonable and repeated. In Re SB, the Commissioner discussed the requirement for repeated unreasonable behaviour in the following terms:
[41] 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…
[43] ‘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. 130
[103] In BOQ the Vice President made three observations concerning what was said by the Commissioner in Re SB about the interpretation and practical application of the expression ‘repeatedly behaves unreasonably’ in s.789FD(1)(a). There are aspects of the Vice President’s observations that are relevant here, and are extracted as follows:
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 the 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. 131
[104] While Ms Hicks laboured through multiple examples of purported conducted by Ms Reed, the evidence was insufficient to ground findings that the conduct either occurred, or the conduct lent itself to the features at least some of which one might expect to find in a course of repeated unreasonable behaviour that constituted bullying at work.
[105] The final element in definition set out in s.789FD(1) is that the behaviour must create a risk to health and safety. In Re SB the Commissioner provided an analysis of the phrase ‘behaviour creates a risk to health and safety’. The Commissioner concluded that there must be a causal line between the behaviour and the risk to health and safety. The behaviour had to be a substantial cause of the risk, when viewed in a common sense and practical way. 132 As far as the risk was concerned, the Commissioner outlined that such risk meant a possibility of danger to health and safety (not confined to actual danger).133
[106] On this point I observe evidence given by Mr Jeffries:
Does MAC have any plans to do anything, in particular, around HR and culture, at this point in time?---Yes, we - we are in the process of engaging a legal firm, called Jackson McDonald, to come in and provide that strategic overview around trying to fix, I think, the culture in the organisation and - and sort of bring all of the policies and procedures into something that I see as beneficial for the organisation, you know, in its long-term future.
What is it that you want fixed?---I - the behaviours in he organisation, I think, I want fixed, from the very top, I think, where there's - there's no clarity around what is reasonable expectation or behaviour expectations of staff within the workplace. This is from my - from my brief - I wouldn't say brief, from my observations over the last 18 months, I think. It's something that I believe has been a cultural insertion of, I think, bad behaviour that's been allowed to fester and - and continue to fester and - and management not having or not being able to - to - to adequately - do deal with it in a timely fashion that I think is considered to be, you know, what is expected of, you know, organisations that are - that are, you know, maturer than - than, you know, MAC. 134
[107] It was evident that MAC had introduced relevant policies and procedures concerning workplace bullying, had familiarised its employees with the same, had taken steps to separate Ms Reed and Ms Hicks within the workplace to minimise the tension and interaction between the two for a period, and had, for a period, organised alternative transport for Ms Hicks to avoid the two driving in the car.
[108] Further, reporting lines had been changed so that both Ms Hicks and Ms Reed were reporting into Mr Jeffries in the absence of the Ranger Coordinator. Mr Jeffries had observed that over recent months Ms Reed and Ms Hicks appeared to be working collaboratively together. 135 The evidence showed that where Ms Hicks had requested that Ms Reed not engage in certain conduct, such as making a rude finger, that behaviour had desisted. The risk referred to in s.789FD(1) must expose the worker to the chance of injury or loss – such that the risk must be real and not simply conceptual. In all of the circumstances, I am unable to conclude that such risk exits.
[109] Ms Hicks explained the impact of Ms Reed’s alleged conduct upon her. This decision should not be read as suggestive that Ms Hicks did not experience the health problems that she had, or that the mutual animus between her and Ms Reed may have weighed in on those problems. Yet it cannot be concluded that Ms Hicks’ illness or injury was a manifestation of the necessary risk that s.789FD(1) refers to. And, of course the requisite causal link to the unreasonable behaviour at work has not been established. 136
Conclusions
[110] I am not satisfied that Ms Hicks was bullied at work by Ms Reed. That conclusion has been reached on the basis that none of the conduct of Ms Reed alleged to be unreasonable in Ms Hicks’ application was in fact unreasonable. While I may not have traversed in detail all examples of Ms Reed’s alleged conduct toward Ms Hicks, all such conduct has been considered in arriving at the conclusion reached.
[111] That does not, in accordance with the principles I have earlier stated, mean that the relevant conduct was in all respects entirely beyond criticism or constituted behaviours that were appropriate and acceptable in a workplace. The shortcomings of that conduct have in the course of my reasoning been identified in this respect. However, from an evidential perspective what was alleged did not reach the required level to persuade, on balance, that the conduct occurred, and/or the conduct was unreasonable.
[112] Further, because of the findings and conclusion reached, it has not been necessary for me to determine whether all of the pleaded instances of behaviour created a risk to health and safety.
[113] Because I am not satisfied that Ms Hicks was bullied at work as alleged, there is no power to make the orders sought by her, and her application is dismissed.
DEPUTY PRESIDENT
Appearances:
P King of Regis Industrial Relations for the applicant
R Consentino of counsel for Murujuga Aboriginal Corporation
Hearing details:
2019.
Perth:
December 10 and 11.
Final written submissions:
18 February 2020.
Printed by authority of the Commonwealth Government Printer
<PR717154>
1 Transcript PN953.
2 Fair Work Act 2009 (Cth), s.789FD.
3 Ibid, s.789FD.
4 Re SB [2014] FWC 2104 [41].
5 Ibid.
6 Witness Statement of Sarah Hicks (Hicks Statement) [14]-[16].
7 Witness Statement of Peter Jeffries [10].
8 Ibid [10].
9 Ibid [10].
10 Ibid [5] and [7].
11 Ibid [6].
12 Ibid [6].
13 Witness Statement of Tui Rei Magner [6].
14 Ibid [6].
15 Witness Statement of Peter Jeffries [8].
16 Ibid [9].
18 [2008] WASCA 254.
19 Second witness statement of Peter Raymond Jeffries (Second Jeffries Statement) [2].
20 Ibid [3].
21 Ibid [4].
22 Ibid [7].
23 Ibid [4].
24 First Respondent’s Further Submissions [17].
25 Ibid [17].
26 Form F72 Application for an order to stop bullying 5.1 [1].
27 Form F72 Application for an order to stop bullying 5.1 [5]; Hicks Statement [10].
28 Form F72 Application for an order to stop bullying 5.1 [5]; Hick Statement [11].
29 Hicks Statement [12].
30 Ibid [14].
31 Witness Statement of Ms Sharon Hicks Annexure SHARON 7 [11].
32 Ibid Annexure SHARON 7 [6].
33 Ibid Annexure SHARON 7 [15].
34 Ibid Annexure SHARON 7 [12].
35 Hicks Statement [19].
36 Ibid [28].
37 Ibid [28].
38 Ibid [33].
39 Ibid [33].
40 Ibid [38].
41 Ibid [39].
42 Ibid [39].
43 Ibid [39].
44 Ibid [40].
45 Witness Statement of Peter Jeffries [15].
46 Ibid [15].
47 Ibid [18].
48 Ibid [18].
49 Witness Statement of Ms Magner [26].
50 Ibid [27].
51 Ibid [28]; Attachment TRM6.
52 Ibid [29].
53 Ibid [30].
54 Ibid [31].
55 Ibid [34].
56 Ibid [35].
57 Ibid [35].
58 Ibid [35].
59 Ibid [38].
60 Ibid [39].
61 Ibid [39].
62 Ibid [40].
63 Ibid [42].
64 Ibid [42].
65 Ibid [42].
66 Ibid [45].
67 Witness Statement of Mr Jeffries [23].
68 Ibid [24].
69 Ibid [25].
70 Ibid [26].
71 Ibid [28].
72 Ibid [28].
73 Ibid [29].
74 Ibid [31].
75 Ibid [32].
76 Ibid [33].
77 Witness Statement of Ms Magner Exhibit, TRM 10 and TRM 11.
78 Ibid Exhibit TRM 10 and TRM 11.
79 Ibid Exhibit TRM 10 and TRM 11.
80 Ibid Exhibit TRM 10 and TRM 11.
81 Ibid Exhibit TRM 10 and TRM 11.
82 Ibid Exhibit TRM 10 and TRM 11.
83 Ibid Exhibit TRM 10 and TRM 11.
84 Ibid Exhibit TRM 10 and TRM 11.
85 Ibid Exhibit TRM 10 and TRM 11.
86 Ibid Exhibit TRM 10 and TRM 11.
87 Ibid.
88 Ibid TRM 11.
89 Hail Creek Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (2004) 143 IR 354 at [48]-[50].
90 Mr Glen Mackie v BHP Coal Pty Limited [2013] FWCFB 8210 [28].
91 Witness Statement of Ms Magner Exhibit TRM 11.
92 Ibid TRM 11.
93 Witness Statement of Mr Jeffries [34].
94 Ibid [37].
95 Transcript PN921.
96 Transcript PN950, 953-954.
97 Mac v Bank of Queensland Limited & Others [2015] FWC 774 [79].
98 Ibid [79].
99 Ibid [80].
100 Ibid [80].
101 Ibid [79].
102 Witness Statement of Ms Magner Exhibit TRM-11.
103 Ibid TRM-11 pg 181.
104 Mac v Bank of Queensland Limited & Others [2015] FWC 774 [80].
105 Ibid.
106 Ibid.
107 Hicks Statement [10].
108 Transcript PN289.
109 Hicks Statement [10].
110 Hicks Statement [11].
111 Transcript PN317-330.
112 Witness Statement of Ms Sharon Hicks Annexure SHARON 7.
113 Transcript PN376.
114 Witness Statement of Ms Magner Exhibit TRM 10 and TRM 11.
115 Ibid Exhibit TRM 10 and TRM 11.
116 Transcript PN836.
117 Transcript PN270.
118 Transcript PN863.
119 Transcript PN277.
120 Transcript PN273.
121 Transcript PN275-276.
122 Transcript PN344.
123 Transcript PN349.
125 Ibid [84].
126 Witness Statement of Jasmine Hicks [2].
127 Witness Statement of Sharon Hicks [15].
129 Ibid [51].
130 Re SB [2014] FWC 2104.
131 Ibid [51].
132 Ibid [44].
133 Ibid [44].
134 Transcript PN953-954.
135 Witness Statement of Peter Jeffries [37].
136 Sharon Bowker, Annette Coombe and Stephen Zwarts v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The, Victorian Branch and Others [2015] FWC 7312 [102].