[2020] FWC 2572

The attached document replaces the document previously issued with the above code on 20 May 2020.

Names have been updated to reflect Order PR715506.

Associate to Deputy President Kovacic

Dated 21 May 2020

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

MJ
(AB2019/193)

Application for an order to stop bullying – Respondent contends that alleged conduct was reasonable management action carried out in a reasonable manner – jurisdictional objection upheld – Application for an order to stop bullying dismissed.

[1] On 10 April 2019 MJ (the Applicant) filed an application under s.789FC of the Fair Work Act 2009 (the Act) seeking an order to stop bullying in accordance with Part 6-4B of the Act. In his application, MJ alleged that he had been bullied by his Team Leader, AM. MJ was employed by the Australian Criminal Intelligence Commission (ACIC – the Respondent) in its information technology area. The Respondent in its Form F73 – Response from an employer/principal to an application for an order to stop bullying contended that the alleged bullying behaviour was reasonable management action carried out in a reasonable manner.

[2] As a result of an application made by the Respondent the Fair Work Commission (the Commission) issued an Order on 20 December 2019 1 pursuant to ss.590(3)(c) and 594(1) of the Act. Among other things, the Order precludes the disclosure or publication of the names of employees of the Respondent other than Senior Executive Service (SES) employees.

[3] MJ’s application was the subject of several conferences convened by the Commission which failed to resolve the matter, with Directions issued on 14 August 2019. MJ’s application was heard on 31 October, 1 November and 3 December 2019 and 7 and 8 January 2020.

[4] At the hearing MJ appeared on his own behalf while Ms Irene Sekler, a Senior Executive Lawyer with the Australian Government Solicitor (AGS), and Mr Henry Chang, a Senior Lawyer with AGS, appeared for the Respondent.

[5] MJ gave evidence on his own behalf.

[6] For the Respondent, evidence was given by:

•  AM;

•  RE, a Team Leader with the Respondent;

•  LP, a Workplace Relations Senior Advisor with the Respondent – LP was not required to give oral evidence;

•  AC, a Manager in the Respondent’s Portfolio Management Office (PMO);

•  AS, a member of AM’s team; and

•  JK, AM’s line manager for the period January 2019 until 21 October 2019.

[7] Ms Rochelle Thorne, the Respondent’s Executive Director, Technology, gave evidence as a result an Order Requiring a Person to Attend the Fair Work Commission issued by the Commission on 25 October 2019. The Order was made as a result of an application by MJ.

[8] For the reasons set out below, I am satisfied that the various actions/conduct of which MJ complains were reasonable management action carried out in a reasonable manner. As such, I do not consider those actions/conduct to be bullying conduct. The Respondent’s jurisdictional objection is therefore upheld and MJ’s application will as a result be dismissed.

Background

[9] A number of issues arose in late 2018/early 2019 in the context of the Respondent implementing an upgrade to a project management platform, Clarity, which it utilised. MJ was the officer with primary carriage for overseeing the upgrade to the platform. At his mid-cycle performance review MJ’s performance was assessed as “Requires Improvement”, with an informal performance improvement plan (PIP) subsequently put in place. On 27 March 2019 MJ lodged a complaint with the Respondent’s People Service Team regarding AM’s behaviour.

[10] As previously mentioned, on 10 Aril 2019 MJ lodged his application for an order to stop bullying with the Commission. In his application MJ described the behaviour which he considered to constitute bullying in the following terms:

“1. Belittling and Undermining:

I am a subject matter expert (SME) of a product that has great potential to provide far reaching benefits for the agency in achieving its vision, mission and goals.

In the last 8 months, I have been able to deliver substantial outcomes, meeting the organizational objectives.

I recorded these achievements in the performance management system. Yet, my manager's indicative rating of my performance does not truly reflect my achievements. The comments made by the team leader are undermining and belittling my efforts. Section 2 2 below, provides my response to the manager's comments.

The behaviour demonstrated by the team leader is repetitive as follows.

For FY16-17 - the performance rating provided by the team leader was "Requires Improvement". I updated the performance development system with my version No further actions were taken.

For FY17-18 - the performance rating provided by the team leader was "Requires Improvement".

I pursued the 'review of decision' process.

The manager's rating was set-aside A new rating of "Performing Well" applied.

For FY18-19 - mid-cycle review conducted and the indicative rating provided by the team leader is "Requires Improvement" The comments made by the team leader in this review are untrue to many extents and they are unreasonable. I sought the 'review of decision' process internally. I was advised that the 'review of decision' process is not available for mid-cycle indicative rating decisions.

2. Threatening behaviour:

On 20/09/2018, after a successful completion of a product upgrade, my team leader raised an outcry saying I could have had lost my job due a trivial step that was missed in the documentation.

I advised the following facts·

•  The outcome of the change was successful.

•  New modules were made available to the agency users

•  A corrective action was taken immediately to ensure the change gets earned out within the approved window.

The team leader repeated the same threat over several occasions.

3. Humiliating.

a. During mid-November 2018, my team leader accused me of stealing property of the agency (under-the desk drawer) that is untrue. It caused deep hurt and distress. I reported this to … [AM] and the team manager … [JK].

b. … [AM] tried to humiliate me in presence of the PMO officer … [AC], stating I should have read the Change Spec document prior to contacting the PMO. I had read it and I wanted some clarifications from the PMO on the given specifications, which she did not ask beforehand making such defaming remarks.

4. On the 26/11/2018, the team leader dissuaded me to explore the 'review of action' process against her decision that I considered unfair She called the time spent on pursuing that internal process as down tooling.

5. The team leader unreasonably applied the performance management as a tool I provided evidence that her assessment was erroneous.

I regularly requested … [AM] for her feedback on my performance. On 14/02/2019 in a 1 1 meeting I requested her to provide me the specific details about the agreed deadlines, if any I missed … [AM] stated "that would be addressed in the mid-cycle IPP review and that Information would be provided then at which point you will be given the opportunity to respond to any matters raised " I reported the instances when I could not get the required assistance from the team leader to achieve the organizational and individual objectives

6. Ostracism:

a On 22/02/2019, the team manager instructed me in writing, not to contact a set of users (the PMO) for any work related activities and did not provide satisfactory reasons as to why

a The team leader later permitted me to talk to the QA team saying that she gave me her blessings to do so (reiterating 'blessings' few times).” 2

The statutory framework

[11] The relevant provisions of the Act are set out below:

“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) …

789FF FWC may make orders to stop bullying

(1) If:

(a) a worker has made an application under section 789FC; and

(b) the FWC is satisfied that:

(i) the worker has been bullied at work by an individual or a group of individuals; and

(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;

then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.

(2) In considering the terms of an order, the FWC must take into account:

(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body—those outcomes; and

(b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes—that procedure; and

(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes—those outcomes; and

(d) any matters that the FWC considers relevant.”

The Applicant’s case

[12] MJ in his submissions and two witness statements 3 focussed almost exclusively on over 30 allegations of bullying behaviour (MJ’s contentions and evidence in that regard are set out later in this decision). Other than that MJ contended that he had observed a drift in AM’s behaviour towards him since September 2018, that the behaviour he attributed to AM was a major impediment to him achieving the objectives set out in his Individual Performance Plan, that the behaviour was repetitive and unreasonable and was detrimental to his health and well-being. MJ also submitted that AM had apologised on multiple occasions for her actions, that there was a lack of sufficient and relevant evidence to place him on a PIP and the unreasonableness in this case arose from AM’s management actions which were carried out in an unreasonable manner.

[13] In respect of the Respondent’s jurisdictional objection, MJ submitted that:

•  he had been targeted and repeatedly victimised by AM’s unfair and unreasonable behaviours;

•  the indicative performance rating of “Requires Improvement” given to him by AM at his mid-cycle performance review lacked evident and intelligible justification;

•  AM’s decision to place him on a PIP lacked evident and intelligible justification;

•  AM’s actions and management should be considered to have been carried out in an unreasonable manner; and

•  the Respondent’s jurisdictional objection under s.789FD(2) of the Act did not apply.

[14] MJ was cross examined extensively regarding his various allegations of bullying behaviour (as noted above, his evidence in that regard is set out below). In his oral evidence MJ attested that he did not agree with RE’s evidence that he spoke rudely to AM but agreed that he may have cut her off on occasions.

The Respondent’s case

[15] The Respondent denied that MJ had been subjected to repeated unreasonable behaviour that created a risk to health and safety. In its submissions, the Respondent considered the legislative framework relevant to this matter, the evidence relating to MJ’s allegations, additional matters relevant to the Commission’s determination of the factual issues in this case and the issue of disposition.

[16] In considering the legislative framework, the Respondent referred to a number of decisions, including Amie Mac v Bank of Queensland Limited; Michelle Locke; Matthew Thompson; Stacey Hester; Christine Van Den Huevel; Jane Newman (BOQ) 4, Ms SB (SB)5, Miroslav Blagojevic v AGL Macquarie Pty Ltd; Mitchell Seears (Blagojevic)6, Sharon Bowker and Others v DP World Melbourne Limited T/A DP World and Others7, John Krnjic v Bunnings Group Limited8 and Mr Mohamed Aly v Commonwealth Securities Limited and others9.

[17] The Respondent’s submissions regarding the evidence relating to MJ’s allegations are set out later in this decision.

[18] As to the additional matters relevant to the Commission’s determination of the factual issues, the Respondent observed that much of the conduct which MJ complained of was management action such as performance matters, the allocation of work and the way work was carried out. Specifically, the Respondent submitted that in considering these issues the following were also relevant:

•  MJ’s part in the incidents of which he complained, particularly where the allegation was that AM acted inappropriately in response to his conduct;

•  whether MJ had any relevant patterns of behaviour, adding inter alia that he was quick to impute malicious or improper motives to AM on the most tenuous of grounds and that he responded poorly to feedback that was or which he perceived to be critical; and

•  that neither AS nor RE raised concerns regarding AM’s management style.

[19] Finally, as to disposition, the Respondent submitted that the issue was more appropriately addressed should it be found that there was bullying conduct directed towards MJ, adding that it maintained that there had been no such conduct.

[20] AM in her witness statement 10 denied that where she sought to manage MJ’s performance, including his underperformance, it had been for the purpose of belittling or undermining him. AM also responded to MJ’s various allegations and in doing so denied that she has sought to threaten or humiliate him or that she was aggressive towards him (AM’s evidence regarding MJ’s various allegations is set out later in this decision). AM also made some general observations based on her experience in supervising MJ and interacting with him through the performance improvement process. Those general observations included that:

•  MJ did not acknowledge that his performance required improvement, adding that MJ had expressed the view to her that ‘management’ had failed him;

•  while MJ was able to ultimately able to deliver a product, it was often not delivered without intensive supervision or to the standard required;

•  MJ frequently sought advice on matters that had already been addressed, adding that this was particularly the case where the matter had not been resolved in the manner he preferred; and

•  MJ regularly voiced doubts as to her authority and qualifications to direct his work, challenged the majority of her decisions and argued against the need for almost all the tasks he was allocated.

[21] AM was cross-examined extensively by MJ in respect of his various allegations. As noted above, her evidence in that regard is set out later in this decision. Beyond that, key aspects of AM’s evidence included that:

•  nothing new in the way of performance concerns that had not previously been raised with MJ was raised at his mid-cycle performance review on 15 March 2019;

•  MJ frequently did not accept any form of feedback about things he may have done better, adding that he tended to be more concerned with who else contributed to issues and establishing that it was not his fault;

•  there was nothing that had been put to her under cross-examination which changed her view as to the indicative performance rating given to MJ at his mid-cycle performance review;

•  there was nothing that had been put to her under cross-examination which changed her view as to whether MJ should have been placed on an informal PIP, adding that while some of the minute detail may have been imperfect the overall feedback remained the same such that it was incumbent on her to provide more support to him via the informal PIP; and

•  the informal PIP had identified further areas for MJ to work on, with 17 areas being worked on as part of his formal PIP.

[22] RE’s evidence 11 was that he had known AM for approximately 15 years and had never observed her engaging in behaviour that he perceived to be bullying or trying to humiliate, threaten or offend anyone. RE described AM as exceedingly patient with other staff. RE, who sat opposite MJ and AM, also observed that in his interactions with AM MJ was very careful with his words and in circumstances where AM gave him very clear directions he would deflect them cleverly in what he [i.e. RE] perceived to be an attempt by MJ to try and frustrate AM. RE also stated that he observed MJ appearing to be more difficult when interacting with AM than when he interacted with others, including him.

[23] Key aspects of AC’s witness statement 12 included that:

•  he believed MJ always tried to achieve an outcome suitable to the PMO’s requirements, though not always in a timely manner;

•  an example of MJ not doing what he believed was agreed was when MJ did not turn off automatic email alerts as part of a data migration task following completion of the Clarity upgrade in March 2019;

•  as part of the data migration process MJ also made edits to the source spreadsheet which he would not have expected him to do, prompting him to request that MJ no longer access any further spreadsheets as part of the data migration task;

•  he met with AM and MJ regularly after February 2019, adding that his observation was that in those meetings MJ frequently pushed back on certain requests made by AM or failed to agree to her work-related questions;

•  he recalled one meeting in which AM asked MJ to do a number of things, adding that he considered all of AM’s requests to be reasonable and that MJ disputed the need to do the work;

•  AM eventually directed MJ to perform the disputed tasks, observing that at that point AM’s tone of voice was raised and forceful which he perceived was as a result of her frustration with the situation;

•  he perceived MJ’s behaviour on that occasion as being intentionally difficult and directed at provoking a reaction from AM, adding that he perceived MJ’s response as being satisfied with the reaction he had provoked;

•  beyond the above incident he had not observed AM show her frustration with MJ by raising her voice, adding that AM had been at pains to be respectful towards MJ; and

•  he recalled asking MJ to refer requests from users for enhancements to Clarity to the PMO so that it could approve them before MJ commenced investigating the possible enhancement and that he told MJ not to contact the Respondent’s IT Security Advisor regarding Clarity.

[24] In his oral evidence, AC attested inter alia that:

•  the PMO’s advice to MJ was that it did not require a shift to the latest version of Clarity for several reasons, though he acknowledged that MJ’s email to him of 21 December 2018 indicated that the latest version of Clarity had been installed in the test environment;

•  he had explained to MJ prior to 20 December 2018 that the PMO was not interested in the latest version of Clarity and the reasons for that, with that view communicated orally and then in writing in the final production brief on 16 January 2019;

•  the reason for not going with the latest version of Clarity was first raised in November 2018, adding that he was pretty sure he had discussions with MJ about the risks associated with the latest version;

•  his sense was that this was a case of MJ not taking no for an answer in respect of the latest version of Clarity;

•  he amended MJ’s Clarity Environments Brief 13 on 16 January 2019 to reflect what the PMO required, adding that he did not consult with MJ regarding the implementation date included in the amended brief;

•  he did not have any evidence that he had told MJ to install the version of Clarity which preceded the latest version in the test environment;

•  the PMO did not push for implementation of the Clarity upgrade while MJ was on annual leave;

•  the Clarity upgrade was delivered on 6 March 2019;

•  AM’s frustration with MJ in their meeting with him [i.e. AC] was possibly understandable, adding in response to a question from the Commission that his sense was that at that meeting MJ was trying to “push AM’s buttons”;

•  he requested that MJ turn off the auto-generation email notification facility in Clarity around 17 June 2019 with that request put in writing on 24 June 2019;

•  he was aware that MJ was reluctant to input risk data into the upgraded version of Clarity as requested by AM as MJ did not feel it was part of his duties;

•  the SES officer who was upset at receiving an auto-generated email alert from Clarity was upset because someone had changed the data in the risk register, adding that MJ had been asked to take data from risk register and change it in Clarity not to change the risk register;

•  as to why that incident was MJ’s fault, he had perceived the risk that this was going to occur and asked MJ to make sure that the auto-generated email alert functionality was switched off so that such an incident did not occur and then the incident did occur; and

•  he did not want MJ exploring enhancements to Clarity without the PMO’s permission, adding that the email exchange between MJ and FT (a Project Delivery Manager with the Respondent) on 12 March 2019 14 involved MJ exploring an enhancement to Clarity with FT.

[25] AS’ evidence 15 was that:

•  he had known AM for about six years during which he had not seen her raise her voice to, humiliate or belittle anyone at work;

•  during his period as acting Team Leader (late November 2018 to mid-February 2019) several issues and incidents occurred with MJ which were of concern to him from a performance perspective;

•  one issue was MJ’s non-attendance at weekly team meetings, with MJ the only team member who ceased attending these meetings for a period of time during his period as acting Team Leader despite MJ being advised by him on 20 and 21 December 2018 that he was required to attend these meetings and being sent a recurring meeting appointment in early January 2020;

•  other issues were:

- MJ submitting an application for annual leave without first discussing the matter with him as was the usual practice in the workplace, adding that he approved the application because he misread the application thinking it was for one day as opposed to three weeks and that as a consequence he had to negotiate a new deliverable date for implementation of the Clarity upgrade which MJ was working on,

- despite advising MJ of the work which he needed to complete prior to going on leave, the major deliverable which MJ submitted before commencing leave, i.e. the implementation plan, was not up to the required standard because it was incomplete, and

- an incident in which MJ aggressively confronted another staff member about a task he [i.e. AS] had asked the staff member to undertake regarding Clarity;

•  he met with MJ on 17 January 2019 with a person from the Respondent’s human resources area [i.e. LP] present to discuss, among other things, MJ’s performance, adding that his impression was that MJ spent a lot of time at that meeting trying to bait him and make him angry, e.g. by displaying a lack of respect for him; and

•  in team meetings he had on many occasions observed MJ be rude to AM, including by “flat out” refusing to undertake tasks requested of him by AM on the basis that he did not know how to do it and would not seek assistance from others to help him.

[26] In his oral evidence, AS attested inter alia that:

•  he was not aware that it was MJ’s understanding that attendance at weekly team meetings was dependent on the Team Leader sending a meeting invite to team members;

•  he did not send a meeting invite for team meetings prior to 9 January 2019;

•  technically MJ did attend all team meetings once he got verbal or email notification of the meetings;

•  he would not have approved MJ’s leave application in January 2019 had he not misread it;

•  he acknowledged that in January 2019 MJ had asked for a resource to be allocated to work with him and for a tester to perform various tasks;

•  on 21 January 2019 MJ had given him a quick draft of step by step instructions to upgrade the test environment from an earlier version of Clarity, though that was not what he had asked MJ to do;

•  he subsequently had a discussion with AM and JK where it was decided not to ask for a resource as requested by MJ given the poor quality and incomplete nature of the document MJ provided on 21 January 2019;

•  the Clarity Environments Brief 16 provided to the PMO by MJ on 14 January 2019 did not mention an implementation date of 30 January 2019, acknowledging that the date was added by AC;

•  he negotiated a revised implementation date of 28 February 2019 with the PMO, adding that he did not consult MJ regarding the revised date nor did he take any of the actions identified by MJ prior to his going on leave;

•  the reason he took no action was that he had a few people look at the “quick guide” prepared by MJ while MJ was on leave and they could not do any work from the document, adding that he therefore decided not to take any action regarding the Clarity upgrade until MJ returned from leave;

•  he had a conversation with MJ on 21 January 2019 after receiving the “quick guide” in which he said he would not action anything because MJ had not completed what he had been asked to do without a reasonable reason, adding that he had asked MJ to prepare an implementation plan;

•  he did not discuss the incident involving another staff member with MJ; and

•  he gave MJ a lot of feedback in the meeting on 17 January 2019 about his mannerisms, how he approached people, the demeaning way he spoke to people and the tone of his voice, adding that MJ was not receptive to that feedback.

[27] JK in her witness statement 17 dealt with her instruction in February 2019 to MJ not to contact the PMO and MJ’s mid-cycle performance feedback. On the first issue, JK deposed that contrary to MJ’s submissions she and AM met with him on 21 February 2019 and that at that meeting she gave him directions which she judged were necessary to ensure that the agreed version of Clarity was installed in a timely way as required by the PMO. JK added that she inter alia directed MJ to have no further conversations with the PMO (other than through AM) to ensure that he did not persist in trying to convince the PMO to upgrade to a version of Clarity which they had already stated they did not want. As to MJ’s mid-cycle performance feedback, JK disputed MJ’s version of their discussion as set out in his submissions in reply, adding that MJ provided her with no information that led her to consider that the proposed performance rating of “Requires Improvement” was not correct. Further, and again contrary to MJ’s submissions, she did not consider the release plan provided by MJ18 to be sufficient as the implementation steps set out in the plan were described at too high a level.

[28] JK’s oral evidence focussed heavily on the mid-cycle performance feedback meeting with MJ on 15 March 2019. JK’s evidence in that regard is perhaps best captured by the following excerpt of the transcript which concerns feedback provided to MJ in respect of Objective 2 – Adopt the corporate tools to enhance ICT Capability – Staff in his Individual Performance Plan (the feedback was that MJ “[a]ttempted to undertake this task to the detriment of his primary customer, i.e. the PMO, even though the work for the PMO had already been delayed” and “[h]as difficulty setting appropriate priorities” 19:

“THE DEPUTY PRESIDENT:  …  I think the questions that … [MJ] is asking go to the rationale for the feedback that's reflected at page 43 in respect of objective 2.

Is there anything that you can sort of share from your recollection of the meeting of 15 March around that particular issue?---Not specifically, no.  I suppose the only thing that goes to that is that the primary objective for the PMO and the priority around the time I was in the job was to deliver the upgrade, not to be doing other things.

Okay.  So your interpretation of the words at page 43 is along the lines of what you've just put?---Yes.

Okay?---So in my conversations with … [AM], one of the performance issues was that a lack of judgment around what as the most important thing to do at the particular time which doesn't mean they weren't all important things to do or weren't on the task list for the year, but - and a number of times … [MJ] pursued what he was most interested in or felt was most important, rather than what was clearly the priority at the time that had been communicated to him and that was the nature of that feedback.

Okay.

MJ:  So is it right that your endorsement of the failure that … [AM] has reported purely based on the information that was fed into you by … [AM] and you did not very with … [MJ], is that correct?---No.  It's not correct in the sense that particularly in the formal mid-cycle review conversation there was ample opportunity for you to put your point of view around whether or not the feedback you were being provided with was accurate or not.

And the feedback, I have provided on self-assessment.  Can I please switch to page 44 please?  And there is my comments to your assessment and it clearly states … [AM] and … [JK] came up with (indistinct) predetermined assessments that were conveyed to me.  Is that true?  There was no room for the discussions or input from … [MJ] during the meeting?---That's not true.

So when I asked - when … [MJ] asked for the evidences, there was nothing produced except the clear instructions.  Is that correct?---Are you talking about at the meeting on the 15th?

Correct?---The feedback was the evidence.  So - - -

That was not (indistinct) is that correct?  That you knew there was no justification?---The feedback that was provided to you by me because I facilitated and passed on the feedback to … [MJ], had been collected from … [AS] and from … [AM] and partly from my own observations.  There was also some previous feedback provided by … [MG], although I did not include that at the time.  There were consistent patterns of conduct in the workplace that was not constructive or not helpful or not conducive to delivering work outcomes in a constructive way.  I did not bring a book of evidence to that mid-cycle review conversation because in my mind that would have defeated the purpose.  The purpose was to have a conversation about the feedback.  Feedback he'd been provided by his supervisors and it wasn't about an exercise of proving one thing or another.  It was about listening to what other people were saying for … [MJ] to listen to what other people were saying about his performance and for him also to have an opportunity to comment, which he did on a number of occasions on things that had impacted on his ability to live [sic deliver].  Also part of that conversation was recognition that he had delivered a number of things during the year quite well.  So this wasn't about saying that everything he'd done was deficient in any way.  He'd done some very good work, particularly early on providing advice to the PMO about options and about the new functionality that was available.  He is clearly very expert in Clarity and how it operates and that was recognised.  The second part of that conversation in terms of the critical feedback was about particular behaviours and ways of doing things in the workplace that were not satisfactory and in particular, and I mentioned this before, repeated failures to follow directions from his supervisors.  Directions - - -

Your Honour, I would like to - - -

THE DEPUTY PRESIDENT:  You might let … [JK] complete her answer?---Yes.  And these directions were in fact to help and assist … [MJ] to deliver the work on his work program.  But on a number of occasions, because he had a personal view that was different, or because he disagreed, he didn't follow those directions and one of the classic examples was his persistence in trying to implement a version of clarity that the PMO had said they did not want.  And ultimately I was forced to provide a direction in writing to make sure that that in fact occurred, which in my experience is highly unusual.” 20

[29] Other key aspects of JK’s oral evidence included that:

•  she had worked closely with AM on a number of projects since 2013 and had no concerns whatsoever regarding her communication skills;

•  what was discussed as the mid-cycle performance feedback meeting with MJ on 15 March 2019 was based on the experience of AS and AM, her observations regarding the impact of MJ’s work practices on others and a briefing she received from MG (the person who’s position she was acting in);

•  simply because someone requested resources did not mean that they would automatically get them, adding that her observation was that MJ was getting a lot of support and help with how to deal with problems and how to get through them;

•  her understanding was that the tasks identified by MJ to be undertaken while he was on leave were not progressed in his absence because he had made no arrangements for that to occur, querying why AM would be preparing his implementation plan;

•  she thought very carefully about how to provide feedback to MJ at the mid-cycle performance feedback meeting in a way that was constructive and could be actioned, adding that she grouped the feedback under four categories – failing to understand the impact of his actions and communications on others, his failure on occasions to be able to complete work without very intense or detailed direction, his failure on a number of occasions to follow the directions of his supervisor and his failure to follow corporate policy practices;

•  she facilitated the mid-cycle performance feedback meeting with MJ on 15 March 2019, with AM there basically to take notes;

•  the focus of that meeting was not about any particular individual issue but rather “about a whole pattern of operating in the workplace which … needed improvement”; 21

•  the upgrade to Clarity was delivered late, adding that it was late twice;

•  she disagreed that the failure to deliver the Clarity upgrade on 30 January 2019 as requested by the PMO was not a failure by MJ as he was on leave at the time, highlighting that MJ had failed to have a conversation with AS before submitting his leave application;

•  MG made the decision that AS would act in AM’s position over the period late-November 2018 to early February 2019, adding that there were good operational reasons as to why that was the best arrangement;

•  she need not have been involved in the development of an implementation plan for the Clarity upgrade into the production environment given that it was a routine task which MJ had done before;

•  she had to provide written direction to MJ to make it absolutely clear which version of Clarity was required by the PMO;

•  while ultimately MJ did provide an implementation plan it was a lengthy process which involved a lot of time and support from both AM and her, adding that this issue went back to the expectations of what an APS 6 officer should be able to do;

•  she did not agree with MJ’s proposition that he did not ignore the direction of the PMO to install the required version of Clarity because, despite the PMO’s decision of 16 January 2019, in the week beginning 18 February 2019 MJ installed a later version of Clarity in the test environment and because ultimately she had to issue MJ a written direction to get him to install the version required by the PMO;

•  the first 20-25 minutes of the mid-cycle performance feedback meeting with MJ on 15 March 2019 were a discussion of his achievements so far in the year;

•  she was aware that MJ had received quite substantial feedback from MG and AM over the six to nine months leading up the mid-cycle performance feedback meeting on 15 March 2019;

•  there was a discussion with the person who accessed MJ’s unattended computer, adding that the person was advised that his behaviour was unacceptable and that it was not to happen again;

•  she disagreed with MJ’s contention that the characterisation of him as refusing to follow instructions or not receptive to feedback was not reasonable; and

•  there was nothing which MJ had shown her under cross-examination which caused her to form a different view as to the indicative performance rating which MJ should have received at the mid-cycle performance feedback meeting on 15 March 2019.

[30] LP deposed in his witness statement 22 that on 17 January 2019 he attended a meeting involving MJ, his support person and AS, who at that time was MJ’s acting Team Leader, at which the issue of MJ’s attendance at weekly team meetings was discussed. Among other things LP deposed that he recalled that during the meeting AS disagreed with MJ’s statement that he had not been personally invited to the meetings by AS, with AS stating that on two occasions he had gone to MJ’s desk to ask him to attend the meetings.

Ms Thorne’s evidence

[31] Ms Thorne attested that her instruction to her directors was that unless the information technology group lifted its game “all our jobs are at risk”, adding that whether an individual’s job was at risk would be determined on a case by case basis. Ms Thorne acknowledged she was not aware in what exact form her instruction/message was being passed on “down the line” and agreed that the gist of her instruction was that poor performance would not be tolerated. Ms Thorne also attested that over the period June 2018 to July 2019 no one had lost their job as a result of a failed system change and that she considered it appropriate to move into a performance improvement process in circumstances where an employee’s performance was assessed as “Requires Improvement” at their mid-cycle performance review.

The alleged bullying behaviour

[32] MJ in his submissions and evidentiary material identified 34 instances of alleged bullying behaviour. I summarise in the table below the key elements of the material before the Commission in respect of each of those instances.

Consideration of the issues

[33] Commissioner Hampton made the following observations regarding the issue of reasonable management action in SB:

“[46] Behaviour will not be considered to be bullying conduct if it is reasonable management action carried out in a reasonable manner.

[47] Section 789FD(2) of the FW Act is not so much an “exclusion” but a qualification which reinforces that bullying conduct must of itself be unreasonable. It also emphasises the right of management to take reasonable management action in the workplace. In its application, the provision comprises three elements:

•  the behaviour (being relied upon as bullying conduct) must be management action;

•  it must be reasonable for the management action to have been taken; and

•  the management action must have been carried out in a manner that is reasonable.

[48] The Explanatory Memorandum refers to management decision and decisions about how work is to be carried out. This suggests that the term may be required to be given a wide meaning under s.789FD(2) and that the Legislature intended everyday actions to effectively direct and control the way work is carried out to be covered by the exclusion.

[49] Determining whether management action is reasonable requires an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time. Without limiting that assessment, the considerations might include:

•  the circumstances that led to and created the need for the management action to be taken;

•  the circumstances while the management action was being taken; and

•  the consequences that flowed from the management action. 

[50] The specific ‘attributes and circumstances’ of the situation including the emotional state and psychological health of the worker involved may also be relevant. 

[51] The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’.  In general terms this is likely to mean that:

•  management actions do not need to be perfect or ideal to be considered reasonable;

•  a course of action may still be ‘reasonable action’ even if particular steps are not;

•  to be considered reasonable, the action must also be lawful and not be ‘irrational, absurd or ridiculous’;

•  any ‘unreasonableness’ must arise from the actual management action in question, rather than the applicant’s perception of it; and

•  consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances.

•  [52] For the circumstances in s.789FD(2) of the FW Act to apply, the management action must also be carried out in a ‘reasonable manner’. Consistent with the approach above, what is ‘reasonable’ is a question of fact and the test is an objective one.

•  [53] Whether the management action was taken in a reasonable manner may depend on the action, the facts and circumstances giving rise to the requirement for action, the way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters.”  69 (endnotes not included)

[34] The Full Bench in Blagojevic also considered the issue reasonable management action, including question of whether placing a worker on a PIP constituted “reasonable management action”, observing as follows:

“[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.

[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. 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”. 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’.”

[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. 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. 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:

‘… 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)

…

[23] … For our part, we agree with the observations of Vice President Hatcher set out at [21] above.” 70 (Endnotes not included)

[35] I respectfully agree with the observations made in SB and Blagojevic and adopt them in this matter.

[36] In this matter MJ among other things disagrees with the feedback provided to him in his mid-cycle performance review and is disaffected by the decision to place him on a PIP. MJ is also aggrieved by the decision not to offer him the opportunity to act in AM’s position over the period late November 2018 to mid-February 2019. In addition, MJ also contends that AM’s conduct towards him constituted bullying behaviour. In particular, MJ in his submissions, evidence and cross-examination of AM accused her of inter alia raising her voice to him, engaging in aggressive, humiliating or intimidating conduct, being rude and derogatory towards him and being angry with him. AM denied the behaviours attributed to her by MJ, though she did acknowledge becoming frustrated with MJ on occasions. I consider the various allegations of bullying conduct made by MJ involve management actions.

[37] In respect of MJ’s contentions regarding AM’s behaviour towards him, I note firstly that MJ’s evidence is uncorroborated. Second, MJ’s evidence is contradicted by the evidence of RE, AS and AC. In fact, their evidence points to MJ’s behaviour being unreasonable on multiple occasions. In particular, I note AC’s evidence in respect of a meeting he had with AM and MJ where AM ultimately directed MJ to perform a task which MJ disputed that he should have to perform. AC’s evidence was that he perceived MJ’s behaviour on that occasion as being intentionally difficult and directed at provoking a reaction from AM, adding that he perceived MJ’s response as being satisfied with the reaction he had provoked and later in response to a question from the Commission that his sense was that at that meeting MJ was trying to “push AM’s buttons”. Finally, MJ’s contentions are not supported by my observations of AM’s demeanour under cross-examination (AM was in the witness box for an entire day) and in the various conferences convened by the Commission regarding MJ’s application. AM in my view was willing to acknowledge in her evidence where she may have handled things better, e.g. the meeting with AC and MJ on 29 March 2019 regarding the systems change specification document. I note also that AM apologised to MJ on a number of occasions, i.e. when MJ said to her that he was offended by her use of the Word “steal” in regards to the desk drawer incident, when she became frustrated with MJ in their meeting of 27 June 2019 and when she learnt that she had copied in another staff member in an email to MJ which referred his PIP. As to whether AM’s frustration with MJ on occasions was unreasonable, the evidence suggests that MJ on a number of occasions disagreed with AM’s requests. For instance, AC’s evidence observation was that in his meetings with MJ and AM MJ frequently pushed back on certain requests made by AM or failed to agree to her work-related questions. In short, the evidence does not support her finding that AM’s frustration was unreasonable.

[38] The above analysis does not support a finding that MJ’s contentions regarding AM’s conduct are made out.

[39] I turn now to consider the issue of whether the decision to place MJ on PIP was reasonable management action. Drawing on the decisions in Blagojevic and BOQ, the test in this regard is whether “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” 71 (underlining added).

[40] Key findings which can be drawn from the evidence in this case which are relevant to the question of whether the decision to place MJ on PIP was reasonable management action include that:

•  the Clarity upgrade was released on 6 March 2019, though the task necessitated the close supervision of MJ by AM and JK at times;

•  the PMO initially specified a release date of 30 January 2019 for the Clarity upgrade with that date renegotiated to 28 February 2019 in circumstances where MJ had leave approved by AS for late January/early February 2019;

•  MJ did not discuss his proposed leave with AS consistent with the Respondent’s Employment Policy;

•  MJ persisted in advocating for the latest version of Clarity despite the PMO’s decision that it did not require that version, with the reasons for that made clear to MJ;

•  MJ on occasions had to be asked and/or directed to either cease certain activities (e.g. AC’s evidence was that he did not want MJ exploring enhancements to Clarity without the PMO’s permission) or perform particular tasks (e.g. AM had to give MJ a written direction to get him to install the version of Clarity required by the PMO in the test environment while JK’s evidence was that on 21 February 2019 she inter alia directed MJ to have no further conversations with the PMO other than through AM);

•  MJ did not accept any responsibility regarding the email alert notification incident;

•  it took MJ some time to prepare an Implementation Plan for the Clarity upgrade which satisfied AM’s requirements, with MJ initially refusing AM’s direction to do so; and

•  MJ received extensive feedback prior to his mid-cycle performance review.

[41] I note also that the Respondent’s Performance Management and Development Policy states at Appendix 1 that:

“5. Where a staff member is rated as ‘needs support’ or ‘unsatisfactory’ (or the equivalent) at any point in the performance cycle or there are concerns about the level of performance, the Supervisor/Manager should commence action under the informal procedures below.” 72

[42] Having regard to the above conclusions, the above table which sets out key aspects of the parties’ respective submissions and/or evidence regarding MJ’s instances of alleged bullying behaviour and the Respondent’s Performance Management and Development Policy, I am not satisfied that MJ has made out 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. In my view the material before the Commission points to the Respondent having a number of legitimate and well-founded concerns regarding MJ’s performance. While the Respondent acknowledged that the feedback provided to MJ regarding the 30 January 2019 implementation date was erroneous to the extent that proceeded on the basis that he had inserted that date in the Clarity Environments Brief he provided to the PMO in January 2019, that does not diminish the significance of the various other performance issues raised with MJ. I further note that the Respondent’s concerns regarding MJ’s performance appear to have spanned a period of three years, though I also note that MJ’s performance rating of “Requires Improvement” for 2017-2018 was revised on review.

[43] As to the decision not to offer MJ the opportunity to act in AM’s position, while I understand MJ’s disappointment with the decision, his view that he was entitled to the opportunity is misplaced. More importantly however, based on JK’s evidence, the decision not to offer the opportunity to MJ was made by MG as opposed to AM, albeit having regard to AM’s advice. Further, the reasons as to why MJ was not offered the opportunity (which included the detrimental impact on MJ’s other work priorities 73), are in my view entirely reasonable considerations. While it would have been advisable had either MG or AM advised MJ that AS would act in AM’s absence prior to AM informing her team of the decision, the fact that this did not occur does not make the decision unreasonable management action. As noted in Blagojevic “[t]he 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’.”74

[44] In summary, the material before the Commission supports a finding that the feedback provided to MJ, the decisions not to offer him the opportunity to act in AM’s position and to place him on a PIP and AM’s behaviour/conduct were all reasonable management action carried out in a reasonable manner. While some aspects might have been better handled, that does not make the particular management action unreasonable or mean that it was not carried out in a reasonable manner.

Conclusion

[45] For all the above reasons, I am satisfied that the various actions/conduct of which MJ complains were reasonable management action carried out in a reasonable manner. As such, drawing on the decision in SB, I do not consider it to be bullying conduct. The Respondent’s jurisdictional objection is therefore upheld and MJ’s application will be dismissed. An Order to that effect will be issued in conjunction with this decision.

Appearances:

MJ on his own behalf
I. Sekler together with H. Chang for the Australian Criminal Intelligence Commission

Hearing details:

2019.
Canberra.
October 31, November 1 and December 3.

2020.
Canberra.
January 7 and 8.

Printed by authority of the Commonwealth Government Printer

<PR719418>

 1   PR715506

 2   Form F72 – Application for an order to stop bullying at Question 2.1

 3   Exhibits 2 and 3

 4   [2015] FWC 774

 5   [2014] FWC 2104

 6   [2018] FWCFB 4174

 7   [2014] FWCFB 9227

 8   [2017] FWCFB 6004

 9   [2015] FWCFB 6895

 10   Exhibit 6

 11   Exhibit 4

 12   Exhibit 8

 13   Court Bundle at pages 641-646

 14   Ibid at pages 28 and 29

 15   Exhibits 9 and 10

 16   Court Bundle at pages 941-944

 17   Exhibit 11

 18   Exhibit 6 at Annexure ‘AM20’

 19   Court Bundle at page 43

 20   Transcript at PN3939-3950

 21   Ibid at PN3842

 22   Exhibit 5

 23   Transcript at PN862

 24   Ibid at PN869-873

 25   Ibid at PN916

 26   Ibid at PN561-563

 27   Court Bundle at page 784

 28   Transcript at PN611-621

 29   Ibid at PN644-648

 30   Ibid at PN661

 31   Ibid at PN 2219

 32   Ibid at PN2249

 33   Ibid at PN2261

 34   Exhibit 6 at Annexure ‘AM21’

 35   Transcript at PN728

 36   Ibid at PN735-739

 37   Ibid at PN2317

 38   Exhibit 6 at Annexure ‘AM25’

 39   Court Bundle at page 276

 40   Transcript at PN955-956

 41   Ibid at PN2386

 42   Ibid at PN957

 43   Ibid at PN1425

 44   Ibid at PN125

 45   Court Bundle at page 22

 46   Transcript at PN1675

 47   Ibid at PN267-268

 48   Ibid at PN278

 49   Ibid at PN1766-1767

 50   Ibid at PN1801

 51   Ibid at PN235-236

 52   Ibid at PN1318

 53   Ibid at PN1867-1868

 54   Ibid at 1885-1887

 55   Ibid at PN1905-1917

 56   Ibid at PN1930

 57   Ibid at PN1936-1937

 58   Ibid at PN1940

 59   Ibid at PN1944

 60   Ibid at PN1341-1342

 61   Ibid at PN1958

 62   Ibid at PN1331 and PN1338

 63   Ibid at PN1257-1258

 64   Ibid PN462-481

 65   Ibid at PN542-543

 66   Ibid at PN678-684

 67   Ibid at PN1279

 68   Ibid PN1406-1410

 69   [2014] FWC 2104 at [46]-[53]

 70   [2018] FWCFB 4174 at [18]-[21]

 71   [2015] FWC 774 at [102]

 72   Court Bundle at page 242

 73   Exhibit 6 at paragraph 33

 74   [2018] FWCFB 4174 at [20]