DECISION

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

Shu Chen
(AB2021/108)

Application for an FWC order to stop bullying; whether applicant bullied at work; unreasonable conduct; reasonable management action; whether created risk to health and safety. Need for further evidence for final determination; alternatively, consideration of the issue of a Recommendation.

[1] Through his application under the Fair Work Act 2009 (FW Act) lodged on 2 March 2021 Mr Chen argues he has been bullied at work by two managers of his employer, Miniso Pty Ltd. That entity is part of the group of companies operating a chain of variety stores in three states operating under the brand “Miniso”. The stores themselves, at least some of them, are operated by franchisees of one of the Miniso companies. The group’s Australian website refers to it being a Japanese-inspired variety store headquartered in China. References in this decision to Miniso are references not only to Mr Chen’s direct employer, but also to other entities in the group.

[2] The bullying is claimed to have been directed towards Mr Chen by his manager, Angeline Yan, whose position with Miniso is as its National Sales and Operations Manager and James Lo, its Senior HR Officer.

[3] Mr Chen appeared at the hearing convened by me and gave evidence, and was the only person to do so on his behalf. Mr Maurice Baroni, of Counsel, appeared for the Persons Named, Ms Yan and Mr Lo and for Miniso. Ms Yan and Mr Lo each gave evidence on their own behalf.

[4] The available evidence has been analysed for bullying conduct in three periods, each sequential to the other; conduct prior to January 2021; the Victorian restructure in January 2021; and the issuing by Miniso of two letters to Mr Chen on 6 and 8 February 2021, referred to as the Letter of Concerns and the Directions Letter, and the events close to their issue. My conclusion is that there is no bullying conduct in the first two periods, but that there may be in respect to the two letters and the circumstances surrounding them.

[5] I have insufficient evidence at this time to determine Mr Chen was bullied at work in respect of the letters and propose to the parties the matter be disposed of in one of two ways; through the issue of a Recommendation by the Commission or through a final determination after the taking of further evidence regarding the letters from the witnesses heard so far and Miniso’s Director, Mr Ben Yip and its Victorian Human Resources Officer, Ms Wen Tan. The parties are directed through this decision to consider what is set out below, discuss it between each other and advise their preference within 14 days of the publication of the decision. A Recommendation will only be issued by me if all concerned agree that such course should be taken.

BACKGROUND

[6] Mr Chen has been employed by Miniso since about May 2019. His responsibility was for the operation of 14 Victorian stores. At the time the group had a further 14 stores in Sydney. The group manages its business mostly from Sydney and Mr Chen was initially the most senior representative of the group based in Melbourne. Mr Chen’s allegations of bullying behaviour against him are confined to the period of time after Ms Yan joined the group, in January 2020.

[7] Mr Chen’s relationship with Ms Yan or indeed with others in the group is not easy and the relationship appears to have been tested not only by interpersonal matters, but also by the impact of the COVID-19 pandemic. Mr Chen formed the view in 2020 that Ms Yan was bullying him. After Mr Lo started with the group in October 2020 and after the two had several interactions; Mr Chen formed the view Mr Lo was bullying him as well.

APPLICABLE LEGISLATION

[8] The FW Act’s provisions in relation to anti-bullying are contained within Part 6-4B—Workers bullied at work, with s.789FD setting out the circumstances of when a worker is bullied at work:

“789FD When is a worker bullied at work?

(1) A worker is bullied at work if:

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

(i) an individual; or

(ii) a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.

(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:

(a) the person is:

(i) a constitutional corporation; or

(ii) the Commonwealth; or

(iii) a Commonwealth authority; or

(iv) a body corporate incorporated in a Territory; or

(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;

then the business or undertaking is a constitutionally-covered business.”

[9] Section 789FF sets out the powers of the Commission to make orders in the event that it is satisfied there is bullying at work:

“789FF FWC may make orders to stop bullying

(1) If:

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

(b) the FWC is satisfied that:

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

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

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

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

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

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

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

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

[10] The term “bullied at work” has the meaning given by s.789FD(1) of the Fair Work Act 2009, referring as it does to a worker, while at work, having an individual or group of individuals repeatedly behave unreasonably towards them with the behaviour creating a risk to health and safety. The sorts of behaviours that may be encompassed within the definition are very broad. By no means a complete list of unreasonable behaviour includes; “intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination”. 1

[11] The Commission’s assessment of allegations of bullying at work is an objective assessment of whether behaviour and conduct that occurred was unreasonable with an attendant likely risk to health and safety. “Unreasonable behaviour” is that which a reasonable person, having regard to the circumstances, may consider to be unreasonable. 2 The definition is to be applied within a Part of the Act dealing with 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.” 3

[12] The reference within s.789FD(2) of the FW Act to the effect that the definition of “bullied at work” does not apply to reasonable management action carried out in a reasonable manner is not an exclusion but a reference for the avoidance of doubt. The reference to reasonable management action carried out in a reasonable manner serves to provide guidance in the interpretation and application of s.789FD(1)(a) in circumstances in which it is alleged that management action such as performance management, disciplinary action, allocation of work, restructuring of the workplace and employer directions constituted bullying. 4 Assessment of reasonable management action carried out in a reasonable manner will require consideration of the following;

“[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 5  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 6.

[50] The specific ‘attributes and circumstances’ of the situation including the emotional state and psychological health of the worker involved may also be relevant 7.

[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’. 8  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’ 9;

•  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 10.

[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.” 11 12

[13] Having found objectively there was bullying at work, the Commission must then assess, also objectively, whether there is a risk of the conduct continuing, also with a further risk to health and safety. While requiring a causal link, the behaviour does not have to be the only cause of the risk, but a substantial cause of the risk viewed in a common sense and practical way. A risk will be the possibility of danger to health and safety, and not necessarily actual danger 13 , however the risk needs to be more than conceptual:

“[44] The unreasonable behaviour must also create a risk to health and safety. Therefore there must be a causal link between the behaviour and the risk to health and safety. Cases on causation in other contexts suggest that the behaviour does not have to be the only cause of the risk, provided that it was a substantial cause of the risk viewed in a common sense and practical way. 14 This would seem to be equally applicable here.

[45] A risk to health and safety means the possibility of danger to health and safety, and is not confined to actual danger to health and safety. 15 The ordinary meaning of ‘risk’ is exposure to the chance of injury or loss.16 In the sense used in this provision, the risk must also be real and not simply conceptual.”17 (footnotes in original)

[14] After finding a person has been bullied at work the Commission is vested with the discretion to make orders or not. An applicant’s own conduct is a matter that the Commission may consider relevant under s.789FF(2)(d) when considering the terms of an order. 18

CONSIDERATION

[15] Mr Chen levels numerous complaints of bullying against Miniso, Ms Yan and Mr Lo. Many of his complaints are repeated or slightly different slants on a complaint already raised. Others are mundane incidents which, through a lens of hyper-sensitivity, are accorded a status they probably do not deserve. Nonetheless they may be grouped in the following manner:

1. Unreasonable work expectations, with it being argued his workload was too high and management’s reporting expectations of him were too onerous or came with unreasonable time frames.

2. General behaviour and conduct. It was argued by Mr Chen that the general demeanour of Ms Yan, Mr Lo and others toward him was featured by bullying. In particular, he observed the following:

a. He was excluded from meetings and discussions;

b. Rumours were spread about him;

c. He was subjected to aggressive behaviour/intimidation;

d. There was a repeated refusal to respond to his questions or he was given misleading answers;

e. Threats were directed toward him;

f. He was subjected to differential treatment, with questions being asked of him, and not others.

3. A claim that his pay was reduced and his employment responsibilities changed when the COVID-19 pandemic started, but with him working the same hours. 19

4. The reduction of responsibilities in January 2021 which led him to be responsible for only 8 of the Melbourne stores instead of the original 14 and the consequential appointment of Nicole Soon to be responsible for the other 6 stores.

5. A “Letter of Concern” issued for his absence on 4 February 2021, which he perceived to be a warning letter and the Directions Letter which required him to attend a meeting with Mr Yip and the meeting which then took place.

[16] These matters may be best analysed for bullying conduct in three phases, each sequential to the other; conduct prior to January 2021; the January 2021 restructure; and the issuing of the Letter of Concerns and Directions Letter and the events close to their issue.

Behaviour prior to January 2021

[17] Having been employed in May 2019 Mr Chen found he was required to work long hours. His duties involved close involvement with the individual stores and travelling between them. He was required to provide support to each store including:

“1, 7am start for stock take

2, 11pm finish time for stock take

3, 12am or some 3am finish time when we setup Marvel theme stores

4, I worked in every single weekend for doing roster, provide support for stores, IT support, launch marketing campaign, delivery marketing material, contact by franchisee, answer questions to store staff …

5, I am required to constantly and actively checking text or emails after our 9-5 weekdays and 9-9 weekends trading hours.” 20

[18] The duties Mr Chen performed and his claims about working hours were not contested in the hearing.

[19] Mr Chen claims that when the COVID-19 pandemic started in March 2020 he was:

“… force to sign an agreement to reduce to part time pay (20h per week), even at that time we still have stores opening and trading, my actual working hours are not reduced.

Stores are only closed down from July-Oct during the stage four lock down period.

I have raised my concern to Angeline, she answered me I will be still required to work the same full time hours, I need to consider this is just a pay cut.” 21

[20] As may be seen, part of Mr Chen’s case is that he was required to take a pay-cut during 2020. Payslips provided by Miniso show that his pay in January 2020 was the same as in January 2021 and the fortnights that followed, to the end of May 2021, 22 a matter conceded by Mr Chen in his evidence.23 Counsel for the Persons Named and Miniso, Mr Baroni, put to Mr Chen the proposition that what took place applied “throughout the whole business” but did not lead evidence from anyone to support his proposition.24 It would appear likely from the totality of the evidence on this subject that if there was a pay cut it coincided with the availability of the Jobkeeper employment subsidies available from the Australian Government. Other than his assertion on the subject, there is no evidence to support Mr Chen’s contention that his actual working hours did not change after the reduction in pay took place. In any event I do not make a finding that any reduction in pay Mr Chen endured in 2020 was bullying or for a reason which included bullying.

[21] From June 2020, Ms Yan began to have concerns about Mr Chen’s attentiveness and his performance. She diarised a number of the occasions on which she expressed concern to Mr Chen:

“From around June 2020, I became aware that Gary was not completing basic tasks that all area managers were required to complete. I raised this with him in separate conversations, including but not limited to the following:

a. On 3 June 2020, in a phone conversation, I pointed out that he was not providing regular communication and updates on the stores he was managing. I also encouraged him to give me more regular situation reports on trade performance in his area.

b. On 9 June 2020, I reminded him that he did not submit his weekly report and that he did not respond on time with regard to missing sales figures from a store.

c. On 15 June 2020, I spoke to Gary about consistently spending more time with the team with the idea that when we spend more time with the team in stores, we will achieve better results in the long term.

d. When I put these issues to Gary, he would respond by saying he had too much work to do and was already working so much. For example, on 23 June 2020, he raised his concerns in a conference call about not having marketing support in Victoria. In this call, the HR officer, Ankita, addressed his concerns and offered a solution.

e. On 3 August 2020, I emailed the area manager’s weekly guideline to all area managers, which provided a recap on the expectations of all area managers with regard to weekly movements and reporting. To date, Gary has not completed his obligations under this guideline.

f. On 14 September, 25 October 23 November 2020, 1 February, 15 February, and 22 February 2021, I emailed Gary to remind him to submit his weekly report on time as they were repeatedly late.

g. On 3 November, I sent Gary an email sent by the NSW area manager to the state and used this as an example of what Gary was required to do with his stores. To date, I understand Gary has not completed this task.

h. On 10 November 2020, I pointed out again that he had not been providing me with daily updates and also gave him direction on how to complete his weekly reports.

i. On 24 November, I brought up wages control in Victoria with Gary and shared calculations to explain how the stores in Victoria should be performing better.” 25

[22] These matters were neither agreed nor contested by Mr Chen.

[23] Mr Lo started with Miniso on 12 October 2020 and shortly after joining the company became aware from Ms Yan that Mr Chen had complained about an excessive workload and was struggling to perform his tasks at a satisfactory standard. Mr Lo and Ms Yan visited Mr Chen in Melbourne in November “and had a discussion with him about his work, including that he needed to communicate with us more regularly as required of all area managers, and explained to him about our forthcoming plans for Melbourne, including wages control and store performance”. 26 They put in place a system for communications using the Dingtalk app, which had been suggested by Mr Chen. The purpose of Dingtalk was for Mr Chen “to report his daily tasks and communicate with us. After a few reports he made on Dingtalk, Gary stopped reporting to us on a regular basis. Despite sending him emails and reminders via Dingtalk and over the phone about the need to communicate with us, Gary continued to not report to us.”27

[24] From about October 2020 Mr Chen started to form concerns about Miniso, Ms Yan and Mr Lo. He started to argue with Ms Yan whom he perceived to be over-bearing:

“I had many arguments with Angeline too. Most of arguments were because she is assigning last minute extra work to me but I am already stretching beyond my physical limitation, I have been worked over 55 or 60 hours per week easily. I constantly telling her on the phone I am already work 7 full days every week, I cannot do any extra, I only have myself.” 28

[25] Mr Chen considers the stores he was responsible for performed strongly over 2020 and better than their Sydney counterparts:

“I was managing Melbourne pretty much just by myself. Melbourne stores are out performing Sydney stores on sales, wage control, productivity rate and any other key points for Dec and Jan period. Melbourne doubled the sales on Boxing Day compared to Sydney. We had 52% more sales on the Christmas week than Sydney.

However I never received a single dollar for my extra work, I was constantly bully and discriminated from my National Operation & Sales manager Angeline Yan.” 29

[26] The core of this submission, that the Melbourne stores for which Mr Chen was responsible outperformed their Sydney counterpoints was not rebutted by Miniso.

[27] Ms Yan’s concerns with Mr Chen as reported through her evidence appear to be more to do with him complying with his communication and reporting obligations; the time he spent with his team; and wages control, 30 rather than a lack of sales performance. In November 2020 Ms Yan had observed to Mr Lo that Mr Chen was both complaining about an excessive workload as well as struggling to “perform his tasks at a satisfactory standard”.31

[28] Mr Chen portrays Ms Yan as difficult to get along with and prone to micromanagement. It is notable that he does not complain about Miniso’s management of him in the 7 or 8 months before Ms Yan started with the company, in January 2020. That could be for a number of reasons, including the way she approached her role, compared with the previous manager (a man). Mr Chen’s portrayal of Ms Yan is not especially supported either by those of her written communications with Mr Chen seem by me or by her oral evidence to the Commission.

[29] What does come through from her written communications though is that Ms Yan is a stickler for frequent, possibly too frequent, reporting with firm timeframes for the delivery of that information. Micromanagement as such may not be inappropriate and does not always have to be viewed as bullying – but of course, it may. In and of itself micromanagement of an employee is not unusual – and especially so given the trading circumstances of the past 18 months during the COVID-19 pandemic.

[30] After one of their discussions in November 2020, Ms Yan arranged for the Dingtalk app to be used for communication between the two and particularly for Mr Chen to report his daily tasks and communicate. 32 The app’s general functions include emails and reminders to be sent between users as well as giving other functionality such as file sharing and integrated videochat. As deployed by Miniso it also includes a user tracking and clocking in/clocking out function which tracks proximity of users to other users. In this case, that means information is recorded about when Mr Chen attends a particular store, with him only being able to clock into the store when within 200m of the store. Miniso were able to deduce from this that at the time Mr Chen claimed to have been ill and seeking medical treatment he was also within close proximity of the Miniso Eastland store.33

[31] Mr Chen submits about the use of Dingtalk within Miniso:

“1, Systematic fraud, misleading, threaten on overtime pay. Miniso is using a Chinese app called Ding Talk for all the office supporting staff to clock in and clock out. The Ding Talk is never accumulating any overtime work, plus we are not allowed to put in time for weekend or any after hour work.” 34

[32] Underpayment issues are not the province of this decision and the evidence does not connect the subject of underpayment with bullying conduct.

[33] The way Dingtalk has been deployed within Miniso does not lead to a finding that it was bullying, either by Ms Yan, Mr Lo or anyone else. Many retail and distribution employees as well as others are subjected to close scrutiny as to their whereabouts; of itself and absent other factors that scrutiny is not bullying.

[34] Ms Yan’s conduct toward Mr Chen in this first period, prior to January 2021, is not evidenced as unreasonable conduct in the period. Were it to continue even with good trading results and responsive efforts to manage-up from Mr Chen then it would likely move to being unreasonable conduct on Ms Yan’s part.

[35] Mr Chen’s evidence about Mr Lo in this first period also does not lead to a finding of unreasonable conduct on Mr Lo’s part in the period.

[36] I do not find there was any unreasonable conduct toward Mr Chen on the part of either Ms Yan or Mr Lo in the period between the time each was employed by Miniso and by the time in January 2021 when the Victorian management restructure was first discussed.

The January 2021 restructure

[37] By January 2021 Miniso had formed a view it should split the responsibility for the Melbourne stores between Mr Chen and another manager and identified Nicole Soon as the person it wanted to run the stores which would be split from Mr Chen’s responsibility. It is not clear from the evidence who first mooted the idea of splitting the Victorian responsibilities, however both Ms Yan and Mr Lo were involved in forming and implementing the project. 35 Mr Lo’s evidence was that the “decision at the end” was that of the company’s Australian Director, Ben Yip .36 Later correspondence from Mr Yip to Mr Chen would suggest that may not be entirely accurate, with him stating to Mr Chen that “such restructure decision was made by the Board for the company's future following the COVID-19 pandemic”.37

[38] Ms Yan and Mr Lo disclosed their intention to Mr Chen in a telephone discussion with him on Thursday, 21 January 2021, and Mr Lo confirmed the details to him in an email sent shortly after the discussion:

“Subject: Melbourne Operations Team restructure

Dear Gary,

We have been discussing resources allocation and manpower management for VIC in more details, especially after hearing your feedback that there is a lot to do and your workload is quite heavy. The following arrangement will be put in place for VIC:

1. We will split VIC into two zones; your portfolio will consist of 8 stores, ie. Melbourne Central, Elizabeth St, DFO, Spencer, Dockland, Highpoint, Bayside, and Eastland

2. We will assign Nicole (from Northland) to temporarily manage the remaining 6 stores, ie. Northland, Chadstone, The Glen, Boxhill, Forest Hill and Doncaster.

3. Your reporting line remains unchanged. Reports and communication method also remain as per your JD and agreement with your supervisor.

4. The aim of the above exercise is to ensure that our Area Managers spend more time in stores with our ground staff and assist them when necessary.

We aim to commence the above arrangement as early as possible. If you have any questions, please let us know.

We will discuss the above further after our Monday retail ops con call.

Many thanks.

Best Regards,
James Lo
Senior Human Resource Officer | Miniso Australia”.

[39] By all accounts the conversation about the proposed change went relatively well. Neither party reports hostility nor other inappropriateness from the other. Mr Lo recollects discussing the call with Ms Yan and believing they had positive feedback about the proposal from Mr Chen. 38 Mr Lo’s evidence, not contradicted by Mr Chen, is that he confirmed to Mr Chen in the phone call that his “roles and responsibilities did not change, nor did his salary, position or reporting line. The only change was to reduce the number of stores he was required to manage’.39 While the statement is made that Mr Chen’s “roles and responsibilities did not change”, such is obviously not accurate, since clearly they did, with responsibility for 8 stores being removed from his control. While incorrect, the error is best seen as one of inaccurate or imprecise language, rather than being an error of substance. The other part of Mr Lo’s statement, that Mr Chen’s salary, position or reporting line did not change as a consequence of the restructure is capable of acceptance.

[40] Ms Yan’s evidence is that Mr Chen neither expressed opposition to the proposal at the time or that Ms Soon would be the person to be promoted. 40 She was asked by Mr Chen at the time about Ms Soon’s abilities and who she reported to:

THE COMMISSIONER: What do you say Mr Chen told you, in that conversation, the one before Australia Day?---He asked me whether Nicole reported to him or reported to me. So I clarified that Nicole would report to me, and I asked how he thought of her. I don't remember the exact words, but his comments on Nicole were positive.

[41] When asked by Mr Chen why the restructure was needed, Ms Yan referred to the need to ease his heavy workload:

“Why?---You were managing Victoria and you have expressed not just once but a few times, that you had a lot on your plate, your workload was heavy. And based on your performance as well, as I stated in my witness statement, there are a few things that you have not done well, as the area manager, which is why the decision was to split Victoria to ease your workload.” 41

[42] The evidence supports a finding that Miniso’s decision to change its Victorian management structure was reasonable, as was the way it discussed the matter with Mr Chen. In making the decision Miniso was reacting to two related imperatives; the complaints Mr Chen was making about his workload as well as its observations that he was not communicating with Ms Yan as regularly and comprehensively as she required. While the evidence given by Mr Lo refers to Ms Yan having concerns in November 2020 about Mr Chen’s excessive workload and “struggling to perform his tasks to a satisfactory level”, 42 Ms Yan does not directly say he was a poor performer other than by not communicating with her as she wanted. Nonetheless, the concerns she held about Mr Chen’s workload, which came from him, coupled with her concerns about reporting and communications are sufficient to make a finding that the decision to make changes to the Victorian store management arrangements was objectively founded and was not unreasonable.

[43] The way Miniso proceeded with the restructure was also reasonable. Ms Yan and Mr Lo first spoke with Mr Chen and mooted the change. Although he seems to have been surprised by the proposal, he did not initially express any concerns on the subject. Mr Lo was sufficiently reassured by Mr Chen’s reaction that he saw some benefit in summarising the changes in an email sent the same day as their conversation on Thursday, 21 January 2021.

[44] There was no unreasonable conduct on the part of either Ms Yan or Mr Lo in the conversation or the summary email. There was no risk to health and safety either in the decision or how it was communicated.

[45] Mr Chen’s concerns on the subject were not expressed until a few days later, late on Tuesday, 26 January 2021. The impression arises, unavoidably, from that communication that he was particularly irritated by appointment of Nicole Soon into the new Victorian position. He plainly regards her as his junior, whether because of experience, age or gender is unclear. Mr Chen’s email, sent as a follow-on from Mr Lo’s restructure email dated 21 January 2021, is an attack on both Ms Yan and Mr Lo.

[46] After starting with the allegation that the two had purposely misread his earlier complaints about workload, Mr Chen made numerous demands of the two addressees which seem to be aimed at removing them from any involvement in the restructure while also seeking a review of what was proposed:

“Subject: Re:Melbourne Operations Team restructure

Angeline & James,

1, You have purpose mislead my previously email regarding the workload, I need the prepandemic positions to be filled, there were a logistic coordinator (Jonathan 3 days per week), a marketing assistant (Lihn 3 days per week), a IT support (Ben 3 days per week), an office coordinator (full time) and a HR officer (full time) in Melbourne office. I have noticed many of these positions in Sydney have been filled.

2, There is a workplace discrimination / workplace racial discrimination and workplace bully for this restructure process.

Angeline & James please take below actions to protect Miniso rights and interest:

1, Cease your work in Miniso until this matter solved.

2, You will need to acknowledge all Miniso directors that your will be take all legal responsible at your personal level.

3, Review all your actions took previously that might illegal to fair work and Australia Human Rights Commission. Please provide me a report for VIC area.

4, Release all text/email/phone call communication between Angeline and Northland leader Nicole.

5, James please provides any qualification for your senior HR officer entitlement.

I strongly recommended James and Angeline can take proper process before Australia Human Right Commission and Fair work involved.

Best regards,
Gary” 43

[47] Mr Lo responded to the correspondence neutrally, suggesting there may have been a misunderstanding and that they should talk, a proposition Mr Chen was not having, replying that the email extracted above should be regarded as a formal complaint against Mr Lo and Ms Yan. In further response, Mr Lo invited Mr Chen to particularise his complaint. 44

[48] I do not find any of the behaviours to this point are unreasonable. Things done after this point are open to findings of unreasonableness.

The Letter of Concerns and Directions Letter and the events close to their issue

[49] On Monday 1 February 2021 the Victorian restructure was announced to a wider audience. 45 Later that morning, at or around 9 AM a regular group conference call took place, referred to as the Leaders Conference. Mr Lo attended the meeting while commuting by train. Mr Chen accuses Mr Lo of having tried to speak over him, which he did not appreciate. Later the same day he raised that concern directly with Mr Lo in an email which was largely respectful. Aside from raising his concerns about Mr Lo’s conduct, he asked several questions about the restructure:

“1, is this “restructure” process is a temporary or permanent, my answer from meeting is contradict to the pervious email I have received.

2, I have also raise my concern on Nicole’s unexpected promotion and how the two regions were divided? I believe the selection process and region division was not base on fairness, openness and doesn’t encourage racial diversity

Please also kindly notice I am still holding my concern on legitimacy of the “restructure” process I was previously formally complained.” 46

[50] It will be noticed from this communication that Mr Chen raises a question about the term of the new arrangements. The 21 January 2021 communication had referred to the appointment being “to temporarily manage …” whereas what Mr Chen heard in the Leaders Conference was that it was a permanent appointment.

[51] Mr Lo’s response later the same day engaged positively both with the complaint Mr Chen had made as well as the questions asked of him, and confirming the restructured appointment would be a full-time one, presumably meaning on-going:

“Subject: Re:3rd Feb leaders conference meeting

Dear Gary,

Thank you for your email. When we were on the conference, I was on the train and the reception was really bad, I could hardly hear anyone talking. I was invited by Angeline to speak up, and I wasn't aware that you were asking question. I believe this is was just an misunderstand, hope that you understand.

In regarding to the restructure process, I would like to confirm that Nicole's position as Cluster Manager is a full-time position that which directly report to Angeline Yan, National Sales and Operations Manager. It is our apology for the confusion in the wordings.

For Nicole's promotion, it was being approved and supported by senior management after interviewing her. As per our earlier communication, the newly created position aims to allow our area managers to spend more time in stores and support stores they assigned.

Once again, we appreciated all your hard work over the past two years and we wish that under the new structure, your potential can be maximise and continuously create valuable contributions to the organisation just as you always did.

Should you have any questions, please feel free to let us know.

Many thanks

------------------
Best Regards,
James Lo
Senior Human Resource Officer | Miniso Australia”. 47

[52] Mr Lo’s response to Mr Chen is respectful, engaged with the complaint that was put to him, and appears constructed to positively address and answer the issues complained about. It is not consistent with Mr Chen’s general accusation in his submissions of Mr Lo being someone who is “misleading, avoiding answering questions, or keeps changing his word”. 48

[53] Mr Chen did not accept the explanations given by Mr Lo, or Mr Lo’s apology about speaking over him, characterising it in a further email to Mr Lo and Ms Yan on Thursday 4 February 2021 as “unprofessional”, as well as lacking basic respect and honesty. The email was sent mid-afternoon, at 2.21 pm, and not only to the two managers mentioned, but also the company’s Director, Mr Yip, another person, Miniso’s Victorian Human Resources Officer, Wen Tan.

[54] After this email a meeting request with Mr Chen was attempted by Ms Tan. Mr Chen said in his oral evidence both that he does not remember the request being issued on the Thursday and thought he may have first known about it on the Friday; but then concedes an email on the subject was sent to him on the Thursday evening . Mr Chen gave this evidence on the subject in response to questions on the subject from Mr Baroni, Counsel for Ms Yan, Mr Lo and Miniso:

“…  Mr Chen, on 4 February 2021, that is this year, when Tan (sic) had advised you that a meeting had been scheduled for Friday 5 February - do you recall that?---I really can't remember about the details of the date, can you give me more details?

Can I take you to page 61, commencing at page 61 of the court book?---Page 61, yes.

So pages 61, 62 and 63, it's that meeting which these emails are talking about is the one I want to talk to you about.  Do you understand now the meeting?---Yes, I recall that.

And on 4 February when Tan (sic) had telephoned you and advised you that there was going to be a meeting held in the afternoon of Friday 5 February 2021, correct?---When did Wen call me, it was on 4th or 5th.  What I could remember was that it was on Friday, but I couldn't remember the specific date.

I am putting to you that there was a telephone conversation between you and Wen on 4 February.  Do you agree or not, or you don't recall?---If 4 Feb is Friday then I can't recall that, because I just can recall the date - the date of the week, but I couldn't recall the specific date.

The 4 February was a Thursday.  Does that help you?---What I could remember is that the phone call was made on Friday.

Okay.  And an email was sent to you and others on Thursday advising you of the meeting; that's correct, isn't it?---Yes, the email was sent to me after the working hours on Thursday.

Because it was sent to you at 6.02 and not before 6 pm does that mean you could ignore the email, does it?---So normally I would check the emails, but I don't check the emails every day after the working hours, but normally I would check.

I am putting to you that you were aware that a meeting had been scheduled to take place on Friday 5 February for two reasons; the first is that you were told by Wen Tan, and the second reason is that you got an email and you were aware of both notifications and therefore you were aware of the meeting on Friday the 5th.  Do you agree with that or not?---On Friday I knew about this meeting.

Can I take you to page 62 of the court book?---Yes, I am on page 62.

Do you see at the top there at point 2 or paragraph number 2, you say, "The meeting schedule email was sent at 6.02 Thursday.  My finishing time work is at 6 pm"?---I see that.

The reason you put that there is because your evidence is that if you receive emails after your finishing time you're ignoring them.  That's correct, isn't it?---No, that's not what - what I mean.  So I - I often check my emails after the working hours, but I don't check it every day.

So you don't check work emails every day?---After the working hours I don't check it every day.

Mr Chen, you knew about this meeting and you chose not to respond to the meeting because you had demanded an explanation of why this meeting was urgent.  That's correct, isn't it?---No, that's not correct.  It was - what I referred to was on the second day when Wen called me.” 49

[55] I have formed the view after listening to the entirety of Mr Chen’s evidence that his recollection about the request to attend a meeting on the Friday was evasive and lacks credibility. His answers on certain matters were very precise and to the point, however on the matter of when he learned of the meeting request his recollection appeared to fail when it was not convenient to recall and, when a direct answer was unavoidable, he engaged in sophistry. Mr Chen was likely aware of the meeting request on the evening of Thursday, 4 February 2021.

[56] Despite this problem for the Applicant, the details about Ms Wen’s call and meeting request, if there are any, have not been put into evidence by either of Ms Yan or Mr Lo, the Persons Named, or Miniso. The request to attend a meeting is stated by the Letter of Concern sent on 6 February 2021 as having been made on Thursday, 4 February 2021 for a meeting to take place on Friday, 5 February 2021, at 10.30 AM. The basics about the meeting request are not in evidence before me which is unfortunate given the significance of the meeting. Ms Tan was not called to give evidence and a copy of the meeting request is not within the documents before me, which is regrettable.

[57] Irrespective of the matters that may be disagreed, there is an acceptance by all concerned that a meeting request was issued to Mr Chen but that he did not attend the meeting because, he says, he was ill. That situation in turn lead to the bluntly worded Letter of Concern being issued to Mr Chen the following day, on Saturday, 6 February 2021 at 1.39 PM (noting the letter is dated 5 February 2021). 50 The letter was sent by Miniso’s Victorian Human Resources Officer, Ms Wen Tan as an attachment to an email which itself sets out Miniso’s expectations of Mr Chen:

“Dear Gary,

We have tried to contact you a few times yesterday but unfortunately couldn't get ahold of you.

We would like to address the concerns of your work duties as an employee. Please refer to the attached Letter of Concern for your review. We hope you understand the need for us to set out the concerns, as we want to see improvements to the shortcomings that have been identified in the letter. This is important as you play a significant role in the business operations. We would like nothing more but for us to work and move together as a team for the best interest of the Company.

Please be reminded that as per usual practice, you will have to report to and work closely with your line manager, Angeline Yan and work with the Senior HR manager, James Lo, for any HR related matters as well.

Should you have any enquiries in relation to the above matter, please do not hesitate to contact me.

Best Regards,

Wen Tan
Human Resources Officer
Miniso Australia”. 51

[58] The above email as well as the Letter of Concern was sent not only to Mr Chen, but also Ms Yan, Mr Lo, Mr Yip and another person. The Letter of Concern comprises the following:

“Letter of Concern

Dear Gary,

HR is writing to underline the concerns of your work duties as an employee in this current period.

This is in regard to your negligence in fulfilling your employee duties to the employer based on section 6 of the employment agreement.

On 04 February 2021, we emailed a “high urgency” meeting invitation to you, scheduled for 05 February 2021 at 10:30am. Your attendance was compulsory, as indicated in the email. We also attempted to contact you in the afternoon of 04 February 2021 between 4pm to 5pm to discuss said meeting. In addition to this, we sent another reminder on WeChat about the meeting when the email invitation was sent.

At this meeting, you failed to show up even after HR sent you a reminder on Wechat at 10:21am 05 February 2021. On DingTalk, you clocked in at MINISO Eastland at 9:42am on 05 February 2021. This was different to what you initially indicated in your weekly plan, which was sent to your line manager earlier in the week. You failed to notify us and your line manager of your whereabouts for the day or any change in plans. You are reminded that it is your obligation to obey all lawful requests, directions and restrictions set out by the Employer.

Additionally, you have also breached the MINISO Leave Policy. While the meeting was being held, HR continued to reach out to you to ask about your whereabouts. You said you were unaware of the meeting and would give HR a call back. However, you still did not return the call and HR had to reach out to you again.

HR sent you a message to ask if you were on your way. You then responded, saying that the meeting was too short a notice and that you were not feeling well and were at the clinic for a doctor’s appointment. This is in breach of the MINISO “Leave Policy”, as you did not give your manager at least 2 hours’ notice, or as soon as possible during work due to illness or injury. This is also against the standard operating procedure regarding clocking in and out of stores, where you failed to clock out of MINISO Eastland when you left.

This letter is to be treated as confirmation that HR has discussed the concerns with you and that you are expected to make every effort to address the shortcomings that have been identified above.

This letter is not intended to be a formal warning and does not form part of the company’s disciplinary procedure. However, it will be kept in your personnel file and thus takes the form of what is considered to be a reasonable written management instruction.”

It is essential that your compliance with company policy and procedure improve to the required standard. You are a valued member of the team and without consistency, our business and your personal development will not grow. We hope you understand the need for us to set out the concerns in writing.

If you have any enquiries in relation to this matter, please contact HR on [email address].

Yours sincerely

Wen Tan
Human Resources Officer | Miniso Australia”. 52

[59] Mr Chen responded by sending two emails to numerous parties on Sunday, 7 February 2021. The Sunday responses defend his failure to attend the meeting by arguing he was ill and had not been appraised of the urgency of the Friday meeting.

[60] The first email, at 10:05 PM is relatively brief and was sent to a number of people, including Ms Yan, Mr Lo, Ms Tan, Mr Yip and another person. This email is directed at Mr Lo, and commences with Mr Chen noting he had not had a response from Mr Lo about his email on 4 February 2021 and advising that his Sunday email should be regarded “as a final warning to demand a formal reply before Tuesday 9th Feb at EOD 5pm to avoid any escalation”. 53

[61] The second email, sent on Sunday evening at 10:27 PM objects to the company’s Letter of Concern and was sent to the same five addressees as the first email with the principal addressee being “hr.vic”, being the email address of Ms Tan. Amongst other things the correspondence advises those who received it;

•  He was ill on 5 February and he informed Ms Tan of that “and she is aware I am having that day off. This is the reason for me didn’t attend the meeting or pick up the phone on Friday. Medical certificate is provided in a separate email.”

•  The meeting request was sent on Thursday evening at 6:02 PM when his finish time was at 6 PM. The urgency of the meeting was not explained to him.

•  He was not given an opportunity to explain his absence before the letter of concerns was issued. He noted the absence was on 5 February 2021 and the letter of concern was issued the following day on Saturday, 6 February 2021. 54

[62] Following these emails, Miniso responded with its own escalation of tone with a letter to Mr Chen from Mr Yip on Monday 8 February (the Directions Letter), ostensibly to address Mr Chen’s earlier complaint of bullying at the hands of Ms Yan and Mr Lo:

“Subject: Important Meeting

Hello Gary,

It has come to my attention that you have strong opinions on the company direction that we have taken in the past few months and you have also raised your concerns towards Angeline and James.

I have personally gone through the case and read through all communications between you, Angeline and James. I have also noticed that you have refused every attempt to reach out to you to have an open conversation. You have refused and ignored phones calls (even during business hours), and not attended our scheduled meetings. You have chosen to constantly send emails, taking everything that has been said out of context, and you have shown an unwillingness to have any conversation, despite your email stating that you “will always leave all the communication channels open”.

I would like to stress that the company directions to date have been given by me, the company’s director, and it is your duty to follow these directions as an Area Manager. Your decision to ignore our attempts for mediation has disappointed me. However, it was agreed that we would choose the more lenient pathway – to present the situation to you in a peaceful manner and discuss ways to move forward.

I can see that over the past few weeks, this was a failed attempt as you have chosen to constantly send emails that come across as attacking both James and Angeline, which can be seen as harassment. If you continue to this behavior, it will be taken as bullying, and I have no tolerance for such behavior in the organisation. I have already empowered our HR department to undertake necessary actions to stop this behavior.

The company also has no obligation to respond or give in to your demands. There is no need to reply to your emails point by point. You are requested to cease and desist your emails. Instead, you are – once again – asked to attend a meeting to discuss your performance and the business direction. In this meeting, we can formally address any concerns you may have.

Please treat this as a formal response to everything you have raised. We will be available on Wednesday at 11am to meet with you via Zoom. Your immediate cooperation is appreciated.

Ben Yip
Miniso Australia”. 55

[63] Mr Chen’s statement about the Wednesday meeting referred to above is that it took place; that it included Mr Lo and Mr Yip but was unhelpful in resolving his situation:

“The meeting was on Wednesday. I have asked if I can have an audio record for the meeting but James has refused and only record it on their side, he explained to me the record can be released if required by law.

The meeting was again disappointed. I have explained my unfair treatment and unlawful pay. Unfortunately the comments I received from James are “move on, what has happened is happened” “our job is to execute director’s orders, not to question it” and comment from Ben Yip “we are all not happy, you can just resign or the company will take action” “we don’t need to discuss any further””.

I have also raised my concern to Ben about James and Angeline’s secrete police style investigation and their behavior to spread rumors at back, Ben reply to me with “why it’s improperly” he has encouraging James and Angeline’s behavior.

(Ben Yip has been giving comments on different occasions such as “do not ever worry about employees, we have legal team can solve anything”, “I am telling you to break the law”)” 56

[64] Mr Lo did not rebut in his evidence the statements attributed to him in Mr Chen’s recollection of this meeting.

[65] I consider that certain aspects of the conduct considered in this third period, surrounding the issue of the Letter of Concern and the Directions Letter are open to a finding of unreasonable behaviour creating a risk to health and safety and that such behaviour may not be reasonable management action carried out in a reasonable manner. My reasons for this consideration are set out below.

[66] The content of the Letter of Concerns and the means by which it was issued does not appear to be reasonable and it may be that after full evidence on the subject is received a finding could be made that it is unreasonable behaviour creating a risk to health and safety. Similarly, it may be that after full evidence on the subject of the Directions Letter is received a finding could be made that it is unreasonable behaviour creating a risk to health and safety. Despite those observations, findings are not able to be made at this time that the behaviour of either Ms Yan or Mr Lo in relation to these matters was bullying, although there is the possibility of such a finding with further evidence. If evidence is received from Ms Tan and Mr Yip on these subjects it is possible their behaviour may be found to be bullying.

[67] In the scheme of the relationships between Mr Chen and Miniso’s managers, the period from 4 February 2021 is critical, with the potential for findings of unreasonable conduct in several directions. Whereas the period before 4 February was tense and no doubt difficult both for Mr Chen as much as for Ms Yan and Mr Lo the relationship is not characterised by unreasonable conduct. Since there is no evidence before me about the reasons a decision was taken to inform Mr Chen that Miniso wanted to meet with him on 5 February or why, I am unable to make findings about whether that was a reasonable decision. While that is so, I comment that the decision itself seems reasonable, given the relationship had been deteriorating over the weeks before. However, some of the events which took place after the decision was taken are featured by unreasonableness.

[68] Mr Chen’s own behaviour around the time the Letter of Concern was issued was repeatedly unreasonable and that conduct requires being taken into account in relation to the ultimate findings to be made. There is no question that Mr Chen’s conduct led to certain responses, however I do not find on the basis of the evidence presently before me that his conduct justifies the responses or tempers what may otherwise be a finding of unreasonable behaviour. Likewise, a finding is not available on the evidence presently before me that the Letter of Concern or Directions Letter and events in proximity were reasonable management action carried out in a reasonable manner.

Overall consideration of the Letter of Concerns and Directions Letter and the events close to their issue

[69] In forming my views about the circumstances which led to the issuing of the Letter of Concern and the Directions Letter and related matters, I take the following into account:

•  The authors of the two letters, respectively Ms Tan and Mr Yip did not give evidence to the Commission and neither Ms Yan or Mr Lo gave evidence about their knowledge of the decision to issue the letters or development of their content.

•  The meeting invitation sent to Mr Chen on Thursday, 4 February 2021 is not in evidence, and so there is no corroboration of the time the invitation was sent; who was invited to participate; the mode of meeting; its subject matter, urgency; or any comments which may have been included in the request itself.

•  There is no corroboration in the evidence of the assertion made in Ms Tan’s 6 February 2021 email that “We have tried to contact you a few times yesterday …” or the things asserted in the Letter of Concern that the meeting was indicated as “high urgency”, was “compulsory”, or that there was another reminder sent on WeChat when the invitation email was sent.

•  Despite this, the evidence is that a meeting request was sent, and that Mr Chen knew about it on the evening of Thursday, 4 February 20201. He also likely knew it would be a forum in which Miniso expressed to him its displeasure about his recent interactions with its management team. The request for a meeting caused Mr Chen to feel sufficiently stressed or anxiousto seek medical attention. When Mr Chen started his Friday workday at the Miniso store at the Eastland Shopping Centre he tried to attend his medical practitioner who worked from rooms in the centre. There is nothing untoward or unreasonable about Mr Chen’s decision to seek medical advice. Miniso knew on the Friday that Mr Chen was not feeling well and was seeking medical assistance since that is stated by Ms Tan in the Letter of Concern. In view of that knowledge the drafting and sending of the Letter of Concern was likely both unreasonable behaviour as well as behaviour creating a risk to health and safety.

•  Due to the short notice, Mr Chen found that he could not see his doctor on Friday 5 February and was told to return on Sunday. When he saw the doctor on Sunday, he complained to them he was suffering from an aching wisdom tooth and was told the toothache may be a symptom of stress. The doctor advised him to see a psychologist and provided him with a medical certificate. 57 There is no evidence that would suggest the symptoms described by Mr Chen were not present or that the general practitioner had no medical basis to issue the certificate.

•  Although it was unreasonable for Mr Chen to avoid the meeting in the way he did, he no doubt apprehended the discussion when it took place would not be especially pleasant for him.

•  The medical certificate received by Mr Chen was provided to Miniso on Sunday, 7 February 2021 at 8:59 PM, before the time he sent his email attacking the Letter of Concern. The certificate was sent to Ms Yan, Mr Lo and Ms Tan. Mr Chen’s cover email referred to him retuning to work on the coming Wednesday, and the text of the medical certificate stated Mr Chen was unfit for work owing to a “medical condition” between 5 February and 9 February 2021 inclusive. It was at least unwise conduct, and potentially unreasonable conduct, for Miniso to not take the medical certificate at face value – that Mr Chen was unwell and not able to work until Wednesday. The sending of the Directions Letter by Mr Yip could be viewed as unreasonable conduct; however, the absence of evidence from Mr Yip means such finding may not be made at this time.

•  One of Mr Chen’s stated grounds of bullying was that the Letter of Concern had been sent to him for his absence on a day he claimed he was sick, 58 a ground acknowledged by both Ms Yan59 and Mr Lo.60 The medical certificate was obviously Mr Chen’s reason for not attending the scheduled meeting on Friday, 5 February 2021, something which aggrieved Miniso management – which includes Ms Yan and Mr Lo. Despite this, neither Ms Yan nor Mr Lo referred to the medical certificate at all in their written witness statements, let alone attached the document in their filings to the Commission. Further, neither made any reference in their statement to Mr Chen’s absence for much of Friday, 5 February 2021 or how they viewed his absence.

•  While accepting they did not author the letters, neither Ms Yan or Mr Lo seem to have much knowledge about why the correspondence had been sent despite them each receiving a copy of the letter and the covering email at the same time as it was sent to Mr Chen. I highly doubt that either had no knowledge of the reasons the letters were sent or development of their content. Mr Lo notes in his witness statement that the Letter of Concern was sent by Ms Tan to Mr Chen on or around 6 February 2021. As I understand the reporting structure, Ms Tan is a State based human resources officer, whereas Mr Lo has a national responsibility and is more senior to her. Ms Yan does not mention the letter at all in her witness statement. It would seem implausible that neither Ms Yan or Mr Lo had no knowledge of how the correspondence came to be drafted and it may well be that they have not been candid to the Commission about their knowledge of the subject.

[70] The content of the Letter of Concern and the Directions Letter were sent to Mr Chen detailing views about his performance, some of which had the potential to be adverse to his interests;

•  Miniso wants to see improvements to his shortcomings;

•  He will need to continue to work closely with Ms Yan and Mr Lo;

•  He has been negligent in fulfilling his employment duties;

•  He has breached Miniso’s Leave Policy and standard operating procedure for clocking out of the Eastland store;

•  The letter confirms “that HR has discussed the concerns with you”, when there is no evidence that such discussion took place;

•  While the Letter of Concern is not a warning, it is a reasonable written management instruction to him;

•  He has refused attempted contact from Miniso and ignored phone calls and meeting requests (with the letter using the plural for both);

•  His communications with Minso have taken “everything that has been said out of context” and he has been unwilling to have any conversation;

•  He has ignored Miniso’s attempts for mediation, when there is no evidence there were any such attempts.

Ms Yan and Mr Lo’s behaviour around the Letter of Concerns and Directions Letter

[71] The evidence available to this point does not lead to a finding of unreasonable behaviour by either Ms Yan or Mr Lo, however that may likely change upon receipt of comprehensive evidence on the subject of the letters.

Mr Chen’s behaviour around the Letter of Concerns and Directions Letter

[72] Mr Chen was criticised by Ms Yan, his manager, as not completing basic tasks all area managers were required to complete. 61 The evidence given by Mr Chen illustrated why those views may have been formed. In giving his evidence he was, at times, vague, evasive and unprepared to grapple with the questions directed toward him. His conduct while at work with Miniso has not been exemplary. After the Victorian restructure had been discussed with him on 21 January 2021, Mr Chen sent an intemperate email to Ms Yan and Mr Lo which raised the complaint that this “is a workplace discrimination / workplace racial discrimination and workplace bully for this restructure process”.62 The racial element, which has not been a focus of the matter before me, seems to have arisen owing to his belief that Ms Yan favoured people of Malaysian origin with that being the only reason Ms Soon was promoted.63

[73] Some of Mr Chen’s actions in the first week of February were plainly not reasonable. His communication with Miniso about not attending the meeting with Miniso on Friday, 5 February were deficient; he failed to notify the company he needed to take personal leave for the balance of the day; the first of his Sunday evening emails was at best disrespectful, uncalled for and over-the-top.

[74] Mr Chen’s actions in challenging Mr Lo’s professional credibility on 4 February 2021 and simply not attending the 5 February scheduled meeting does him no credit at all. Mr Chen’s failure to acknowledge the meeting request made of him by Ms Tan is also unreasonable. The claim that he had not seen the meeting invitation since it had been sent to him after 6 PM (and, it seems, at 6:02 PM 64) is hollow and implausible. While I do not have direct evidence that the purpose and urgency of the meeting were communicated to him, it is likely those matters were and in sufficiently clear terms for him to know this was a meeting he should do his best to attend. While I accept he was insufficiently well on 5 February to attend the meeting, it was inappropriate for him not to inform Miniso of his absence from work or to do so until the Sunday evening, 7 February 2021.

Were the Letter of Concerns and Directions Letter and surrounding events otherwise unreasonable?

[75] The legislation allows a finding of a worker being bullied at work when an individual or a group of individuals repeatedly behaves unreasonably towards the worker.

[76] While the evidence does not allow at this time findings of repeated unreasonable behaviour on the part of Ms Yan and Mr Lo, named by Mr Chen in his application as the people who engaged in bullying behaviour toward him, it does potentially allow findings, subject to the taking of further evidence, that the content and issuing of the Letter of Concern and Directions Letter were repeated unreasonable behaviour directed at him by Miniso managers.

[77] Some of the views expressed in the correspondence could reasonably be said to have accuracy (Mr Chen plainly avoided engagement with Miniso about complaints); others are likely hyperbole (he took everything out of context); however, others likely lack foundation (the claimed attempt at mediation) or should have been put to him as intended findings or actions (his negligence or breaches of the Leave Policy; the assertion that the letter was reasonable management instruction). While the Letter of Concern and the Directions Letter may be viewed as a response to his unreasonable actions, it is inescapable that each was unreasonable at least in part. The content simply announced findings and neither endeavoured to seek his explanation or engage with what he may have to say. The Letter of Concern was copied to Ms Yan and Mr Lo simultaneously as being sent to Mr Chen, whereas the Directions Letter was not.

[78] The covering email to the Letter of Concern informed Mr Chen that “we want to see improvements to the shortcomings that have been identified in the letter” as well as that there would be no change to his reporting line. The shortcomings referred to in the Letter of Concern are not clear, however seem to be Mr Chen’s failure to attend the scheduled Friday meeting, and to not give notice of his personal leave absence meaning he “breached the MINISO Leave Policy”. The letter states that these matters have been discussed with him by HR and that he is expected to “make every effort to address the shortcomings that have been identified”. Such though is not intended to be a formal warning, although it will be kept on his file and “considered to be a reasonable written management instruction”. By writing and transmitting the letter to Mr Chen so close to the day he was absent and in the knowledge he had not felt well and sought medical assistance and then copying the letter to 4 people other than Mr Chen, the recipient, and Ms Tan, the sender, pushes it to a likely creation of a risk to health and safety.

[79] The Directions Letter, set out above, perhaps written after significant frustration with Mr Chen, is not much better than a “my way or the highway” communication. Its content and transmission to Mr Chen with no warning that it may be coming or attempt to ascertain his views is likely to fail a test of reasonableness, as may the fact it was transmitted to him while under a medical certificate. It was sent to Mr Chen just over two days after the Letter of Concern when the matters raised in that correspondence had not been discussed with Mr Chen or answered by him to any level of satisfactory detail. The Directions Letter refers to Mr Chen having ignored Miniso’s attempts for “mediation”, which are not referred to anywhere in the evidence about the dispute to that time, and tells him that if he continues his behaviour it will be viewed as bullying by him. In finality it requests Mr Chen “cease and desist” and suggests a further meeting, the point of which is not clear since the letter declares that it is “a formal response to everything you have raised” and that his “immediate cooperation is requested”. In the context of the evidence seen in this matter so far, the letter is a gross overreach. Its content was menacing and it plainly worried Mr Chen. This was no “lets talk it through” communication, but a “fit in and drop your complaints” directive. The circumstances of its provision to Mr Chen as well as its content likely created a risk to health and safety.

[80] The Letter of Concern also states Mr Chen has negligently failed to fulfil his duties as an employee, as set out in his employment agreement. Those duties are stated in a largely conventional manner including the requirement to carry out all reasonable instructions; to faithfully serve Miniso and obey its lawful requests and directions. Although I understand why the contention may be advanced that Mr Chen has not complied with the term, I am unclear at this time which duties it is said Mr Chen has negligently failed to fulfil.

[81] The reference in the Letter of Concern to Mr Chen being in breach of Miniso’s Leave Policy is apparently a reference to the policy set out in the 2020 Employee Handbook, which purports to require 2 hours’ notice of “expected absences”:

“You are entitled to annual leave following the terms in your contract. Permanent team members are entitled to take personal leave if they:

•  are sick or injured;

•  need to care for a member of their immediate family or a person who is dependent on them for care.

You are required to personally inform your Manager via telephone, of any expected absences at least 2 hours prior to your scheduled start time. Store Managers must ensure that they contact both their store and their Manager. Where possible you should provide your Manager with an indication of when you expect to return to work.

Notification via email or text message or a call from a friend or relative on your behalf is unacceptable, unless otherwise agreed to with your Manager. In the event that your Manager is unavailable, you must leave a voicemail message. If you are absent for more than two consecutive days, or on a day preceding or immediately following a public holiday, weekend or Rostered Day Off (RDO), you must provide appropriate documentation, generally a medical certificate.” 65

[82] The General Retail Industry Award 2020 defers to the NES on the subject of personal leave and the National Employment Standards (NES) do not draw a distinction between personal leave for expected absences and those for unexpected reasons. Instead of requiring that expected absences be notified at least two hours prior, the NES specifically and unambiguously countenances that an employee’s notice to their employer of the need for personal leave may be given after the leave has started but with an obligation it be given to the employer as soon as practicable:

“107 Notice and evidence requirements

Notice

(1) An employee must give his or her employer notice of the taking of leave under this Division by the employee.

(2) The notice:

(a) must be given to the employer as soon as practicable (which may be a time after the leave has started); and

(b) must advise the employer of the period, or expected period, of the leave.

Evidence

(3) An employee who has given his or her employer notice of the taking of leave under this Division must, if required by the employer, give the employer evidence that would satisfy a reasonable person that:

(a) if it is paid personal/carer’s leave—the leave is taken for a reason specified in section 97; or

…

[remainder of subsection is omitted]

Compliance

(4) An employee is not entitled to take leave under this Division unless the employee complies with this section.

(5) [omitted]”

[83] The Employee Handbook Leave Policy is plainly not consistent with the NES.

[84] It cannot be reasonable conduct on the part of an employer to hold an employee to a policy which is inconsistent with the NES.

[85] In any event, but likely moot, is the fact that the Leave Policy probably does not apply to Mr Chen’s absence, even were the policy consistent with the NES, since it refers to “expected absences” when Mr Chen’s absence was most likely unexpected. The only part of Mr Chen’s conduct in relation to his personal leave absence that is inconsistent with the exercise of his NES rights is his failure to have given his notice of absence to Miniso as soon as practicable. It would have been practicable to do so after he had visited the medical clinic on Friday, 5 February 2021 and tried but failed to secure an appointment that day, but he did not do so until Sunday evening after he had obtained a medical certificate earlier that day.

[86] Against these propositions of unreasonableness on the part of Miniso, Mr Chen’s actions need also be seen as unreasonable, for the reasons set out above.

Was there reasonable management action taken in a reasonable manner?

[87] As set out above, for something to be “reasonable management action carried out in a reasonable manner” the action must be capable of determination as 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.

[88] In this case, and within the period around the issue of the Letter of Concern and the Directions Letter, there were three distinct management actions; the requirement to attend the meeting scheduled for Friday, 5 February 2021 and the two letters.

[89] It would have been clear to Miniso by Thursday, 4 February 2021 that Mr Chen was not about to meekly acquiesce to the decision to remove six Victorian stores from his managerial line. His concerns may have been late raised and contrary to the initial views he had given to Ms Yan and Mr Lo, but they were concerns nonetheless. He thought the restructure diminished his position and standing and that Ms Soon was not qualified for promotion. He was also not complying with Ms Yan’s requests for information and her expectations about the frequency and timing of communications. Mr Chen appears to have been frequently ignoring her directives. Until the Leaders Meeting on 3 February, Mr Chen seems to have had amicable relations with Mr Lo; however, that changed after Mr Lo’s explanation to Mr Chen about having talked over him in the 3 February meeting.

[90] Aspects of those matters are things the company could and should have called Mr Chen to account over. He had been rude and demanding to Mr Lo and was not complying with Ms Yan’s communications expectations. He had made demands of the two that he was not in a position to make and was beginning to show a level of hostility to Mr Lo and Ms Yan which, if left unchecked, would eventually erode the trust and confidence needed in order for the employment relationship to function. He had initially accepted the Victorian restructure, but then abruptly changed his mind without it being especially clear why that was. It would be an unusual management structure in which the dysfunctional behaviour Mr Chen was exhibiting would either be tolerated or permitted to continue.

[91] The necessity to call Mr Chen to account though must be implemented in a reasonable manner, and the evidence seen thus far does not support such a finding.

[92] It would have been reasonable on Miniso’s part given Mr Chen’s failure to attend the meeting on Friday, 5 February 2021 to either speak with him if he would take the call or failing that to write to him on Monday, 8 February 2021 and express concern that he had failed to attend an important meeting as directed. It would have been reasonable as well for Miniso to direct Mr Chen that it required a conversation on the subject both of the matters that were to be discussed in the Friday meeting as well as its view that his failures first to attend the meeting followed by his failure to inform them earlier of his absence from work could be viewed as potential misconduct or at least breaches of its policies. Mr Chen should have been given an opportunity to explain the circumstances of how he came to feel unwell being directed to a meeting on Friday, 5 February 2021 and leave work to seek medical attention.

[93] Those steps could and should have been the reasonable steps taken by Miniso, even after Mr Chen’s emails late on Sunday 7 February 2021. There is no evidence of those, or alternatives given consideration by anyone in Miniso.

[94] The request for the meeting scheduled for Friday, 5 February 2021 was a reasonable management action.

[95] It was likely unreasonable to send the Letter of Concern or anything similar to it until something like the process referred to above had concluded, or at least been rejected by Mr Chen. The content of the letter was intemperate and disregarding of anything Mr Chen may have to say about its subject matter. As a consequence, and on the basis of the evidence available to this point, the Letter of Concern and circumstances surrounding it are likely not reasonable management action carried out in a reasonable manner. The same must be said about the Directions Letter; a finding is not available on the evidence to date that the letter or the circumstances surrounding were reasonable management actions carried out in a reasonable manner.

The risk to health and safety

[96] A risk to health and safety does not arise for the purposes of s.7895FD(1)(b) only when there is actual danger, but instead when there is a chance of injury or loss; however, there must be a causal link in some respects between a behaviour and a risk to health and safety.

[97] No apprehension of health and safety risk arises in respect of the first management action, the request for a meeting on Friday, 5 February 2021. However, there is a likelihood of such a finding in respect of the issue of both Letter of Concern and the Directions Letter.

[98] The Letter of Concern was sent to Mr Chan after he left his work on Friday, 5 February 2021 due to illness and with it being known to Miniso he was “not feeling well and were at the clinic for a doctor’s appointment”. 66 Mr Chen asserts that Ms Tan knew he had left the workplace and that he informed her and she was aware he was having the day off.67 If it is the case that Ms Tan knew Mr Chen had left feeling unwell, which seems likely, and within the context of the direction he should attend a management-initiated meeting, a finding may well be available to the effect that the issue of the Letter of Concern had the likely effect of exacerbating a known health concern on the part of Mr Chen.

[99] The Directions Letter was sent to Mr Chen after he had provided his medical certificate to Miniso and before it indicated he was likely to return to work. Subject to the need for further evidence, a finding may well be available that issuing the Directions Letter risked exacerbating a known health concern on the part of Mr Chen.

[100] The possibility that both the Letter of Concern and the Directions Letter had the potential to create a risk to health and safety stems from the likelihood that a reasonable person holding concerns their job was being eroded may well have a significant negative reaction after receiving the letters, especially if they perceived as well they were being pressured to conform to workplace directions they considered onerous. The reality of the risk is conveyed sharply through two thing. First, Mr Chen was known by Miniso be seeking medical attention when the Letter of Concern was written as well as to be under a medical certificate by at least the time of the Directions Letter. Second, he was issued by Miniso with two demanding pieces of correspondence within a period of less than three days. The strength of the demands and that the action of sending written correspondence was repeated so quickly would likely cause even a well person to feel pressured and anxious. Sending them to a person with some level of unwellness most likely puts the correspondence and the decisions to draft their content and transmit them to the Applicant into an entirely different sphere than a mere desire to rein in a non-conforming manager. The letters were hectoring; not inviting of explanation or dissent; and in the context of the evidence seen thus far, likely to create a risk to Mr Chen’s health and safety.

Miniso’s investigation of Mr Chen’s allegation of bullying

[101] Mr Chen’s email to Ms Yan and Mr Lo late on 26 January 2021 raised the proposition that the two had misconstrued his earlier concerns about workload and that he was the subject of “workplace discrimination / workplace racial discrimination and workplace bully for this restructure process”. 68 Mr Lo acknowledged the allegations and said in response that he and Ms Yan wished to discuss the matter with him. Mr Chen did not wish to do that and reiterated the same day that he made a formal complaint against Ms Yan and Mr Lo. The following day, on 28 January 2021 Mr Lo responded more formally inviting Mr Chen:

“to specifically highlight and detail the incident that might cause the allegation.

Senior Management take this seriously and would like to gather further information from you before further action.” 69

[102] Mr Chen never took up this invitation which, in turn eventually led Mr Yip to communicate in a letter dated 1 March 2021, that the matter was closed due to the lack of substantiation or corroboration:

“Dear Gary,

RE: Alleged workplace discrimination and bullying

I refer to your emails to Mr James Lo and Ms Angeline Yan dated 26 and 27 January 2021, whereby you made a formal complaint against them alleging that there has been workplace discrimination (including racial discrimination) and bullying during the Melbourne team's restructuring process.

In order for us to properly assess and consider your complaint, we emailed you on 28 January 2021 requesting details of any particular incidents which may have made you feel there has been discrimination or bullying of any kind. To date, we have not received any response to that email, or any communication from you. For procedural fairness, I nevertheless put your allegations to James and Angeline for their response directly.

After careful and independent review and consideration of all materials made available to me, I am of the view that whilst I can empathise with your disappointment in our Melbourne team's restructure, one cannot substantiate or corroborate that it amounts to workplace discrimination and bullying. As you would appreciate, such restructure decision was made by the Board for the company's future following the COVID-19 pandemic.

Given the seriousness of such allegations, please advise if you would like me to consider any further materials to support your complaint. If not, I will consider your complaint closed and ask that you immediately cease from continuing to raise such allegations against them especially in our company group chats which include other team members.

Please do not hesitate to contact me directly if you have any queries or comments.

Yours sincerely,

Ben Yip
Director”. 70

[103] There is no evidence before me, other than the above letter, that there was an investigation into Mr Chen’s allegation; what it entailed; or what other findings there may have been.

[104] To some extent the outcome referred to in Mr Yip’s letter is to be expected given that Mr Chen never gave particulars to anyone about his concerns. However, the concerns he held were in part at least held against actions of Mr Lo, who was the person requesting he provide more details, with it then being unclear what, if anything he would do with the details once they were provided. It would have been far preferable for the complaint to be dealt with by someone at arms-length then the person complained about.

[105] Miniso’s response to Mr Chen’s anti-bullying application refers to there being a company policy on the subject. The policy is within the 2019 Employee Handbook but for some reason is not in the 2020 Employee Handbook and argued in its written submissions “that the Company does have an anti-bullying policy, and further training on this policy will be implemented by the Company irrespective of this proceeding”. 71 Neither Mr Lo nor Ms Yan gave evidence about the policy.

[106] The policy provides:

“19. Discrimination, Sexual Harassment and Bullying Policy

MINISO is committed to providing a safe, flexible and respectful environment for staff and clients free from all forms of discrimination, bullying and sexual harassment. All employees are required to treat others with dignity, courtesy and respect.

By effectively implementing our Discrimination, Sexual Harassment and Bulling Policy we will attract and retain talented staff and create a positive environment for staff.

All staff are entitled to:

•  recruitment and selection decisions based on merit and not affected by irrelevant personal characteristics

•  work free from discrimination, bullying and sexual harassment

•  the right to raise issues or to make an enquiry or complaint in a reasonable and respectful manner without being victimised

•  reasonable flexibility in working arrangements, especially where needed to accommodate their family responsibilities, disability, religious beliefs or culture.

All staff must:

•  follow the standards of behaviour outlined in this policy

•  offer support to people who experience discrimination, bullying or sexual harassment, including providing information about how to make a complaint

•  avoid gossip and respect the confidentiality of complaint resolution procedures

•  treat everyone with dignity, courtesy and respect.

Additional Responsibilities of Managers and Supervisors

Managers and supervisors must also:

•  model appropriate standards of behaviour

•  take steps to educate and make staff aware of their obligations under this policy and the law

•  intervene quickly and appropriately when they become aware of inappropriate

•  behaviour

•  act fairly to resolve issues and enforce workplace behavioural standards, making sure relevant parties are heard

•  help staff resolve complaints informally

•  refer formal complaints about breaches of this policy to the appropriate complaint handling officer for investigation

•  ensure staff who raise an issue or make a complaint are not victimised

•  ensure that recruitment decisions are based on merit and that no discriminatory requests for information are made

•  seriously consider requests for flexible work arrangements.

Unacceptable workplace conduct

Discrimination, bullying and sexual harassment are unacceptable at MINISO and unlawful under the following legislation:

•  Sex Discrimination Act 1984 (Cth)

•  Racial Discrimination Act 1975 (Cth)

•  Disability Discrimination Act 1992 (Cth)

•  Age Discrimination Act 2004 (Cth)

•  Australian Human Rights Commission Act 1986 (Cth).

Any employee found to have engaged in such conduct might be counselled, warned or subject to disciplinary action. Severe or repeated breaches can lead to summary dismissal.

Issue Resolution

If you have any issues about discrimination, sexual, harassment and bullying that concern you, report it to your manager immediately. Further investigation may be conducted by the Company with due respect for the rights of both the complainants and the respondents.” 72

[107] Although it is to Miniso’s credit that it has such a policy, and of course many employers do not, the policy is observably outdated. It provides no definition of bullying and gives no advice about the sort of behaviours which might be bullying. It makes no reference to the Fair Work Act 2009, let alone the statutory definition of bullying within it. The policy also does not set out a clear framework for the receiving and handling of complaints. It gives no indication of a timeframe in which matters will be considered and determined. The “issue resolution” clause provides a very inadequate framework for employees to have trust and confidence their complaints will be received; impartially considered and determined; or how Miniso’s professed value that “[a]ll employees are required to treat others with dignity, courtesy and respect” will be inculcated into its workplace culture. It also says nothing about how the “rights of both the complainants and the respondents” will be respected in the inevitable case in which one person denies entirely the things said by the other.

[108] Although a contemporary and meaningful policy would not lead to a different outcome in a case where the employee did not provide particulars of their complaint, the policy should be updated as soon as possible and training provided to all employees on the conduct it seeks to sanction and the processes and timeframes by which complaints will be investigated and decided.

How should this matter now be disposed of?

[109] The evidence shows that over a period of about a couple of weeks Mr Chen conducted himself very poorly, with there being little doubt that his behaviour was unreasonable in the sense of it being objectively both an over-reaction to the Victorian restructure announcement as well as it being inimical to a trusting and respectful working relationship. Probably as a result of Mr Chen’s rising level of hostility Miniso issued the Letter of Concern and the Directions Letter. Miniso’s response actions were likely unreasonable as well.

[110] After considering all relevant matters, it is apparent from the material before me that neither Ms Yan or Mr Lo have given evidence about their knowledge of the preparation and provision to Mr Chen of either the Letter of Concern and its covering email or the Directions Letter. Neither mentioned the subject in their Form F74 (Person Named Response) or their witness statement. While some of that situation may be because they were not subjected to a careful cross-examination of their evidence, it may be due to them being careful not to give evidence on the subject of the two letters.

[111] The lacuna in their evidence on the subject is shown by the fact that each received a copy of the Letter of Concern and its covering email, the emails which provoked the letter, and the responses from Mr Chen which came after. One would have thought, that having been accused of bullying which involved the Letter of Concern, each would take some care to show they either had no involvement or that their involvement was reasonable.

[112] I do not at this time make the finding that Ms Yan and Mr Lo’s conduct in connection with the Letter of Concern was bullying by them as defined. This is principally because of what I have to say further about the need for evidence from Ms Tan and Mr Yip on the subject of the Letter of Concern.

[113] The Letter of Concern and the Directions Letter and the circumstances surrounding them are each open to a finding that each was unreasonable conduct directed toward Mr Chen and likely not protected by the general exclusion in s.789FD(2) that bullying is not conduct able to be characterised as reasonable management action carried out in a reasonable manner. Complete evidence from the two on the subject as well as from Ms Tan and Mr Yip may show that no part of Ms Yan or Mr Lo’s conduct was bullying; or it may show that it was.

[114] Beyond these matters, I find the evidence of Ms Yan and Mr Lo to be credible and capable of acceptance and overall more credible than that of Mr Chen’s generally who was prone to avoid direct answers or to dissemble on matters which may be adverse to his interests.

[115] Ms Tan and Mr Yip, being the two Miniso managers who authored the correspondence have not given evidence in these proceedings. There is at least the possibility that the evidence of Ms Tan and Mr Yip, if given, may not assist the case there was no bullying directed toward Mr Chen by a group of individuals which, on one consideration at least may include Ms Yan, Mr Lo or Ms Tan or Mr Yip.

[116] Nonetheless, I do not at this time make findings about the conduct of either Ms Tan or Mr Yip since I have not afforded them the opportunity to be heard and for their evidence and submissions to be taken into account by me.

[117] In totality, I find the situation unusual and somewhat finely balanced. Such unreasonable conduct as could be found if further evidence is taken may well not be that of Ms Yan or Mr Lo, directly at least, and is at least equalled by unreasonable conduct on the part of Mr Chen.

[118] The situation is unusual owing to the obvious gaps in the evidence to date as well as the need to take into account Applicant’s conduct in a final disposition of this matter.

[119] If further evidence is taken it would require Ms Yan and Mr Lo to specifically and cogently address what they knew about the preparation and sending of the Letter of Concern and the Directions Letter. It is unlikely that I have their full evidence on this subject so far. It would also require Ms Tan and Mr Yip to do the same, and I have none of their evidence at this time.

[120] On the other hand, there is most definitely a case to call Mr Chen to account and require him to act according to the company’s norms.

[121] The fine balance arises from the probability that complete evidence may leave me with the findings I have made about Mr Chen’s unreasonable conduct, as well as findings that content of and manner by which the Letter of Concern and Directions Letter were issued was unreasonable conduct. It is probable the correspondence is not covered by the exemption for reasonable management action carried out in a reasonable manner because of their content and the way they were communicated. Findings about the circumstances surrounding the two letters may well include the requisites that there was repeated unreasonable behaviour toward Mr Chen as well as the behaviour likely creating a risk to health and safety.

[122] Even so, the consideration of orders would need to be balanced against Mr Chen’s contribution to the situation.

[123] Because of this situation I consider there are two alternative pathways to progress this matter: through the taking of further evidence in order to fill the indicated gaps or through each party agreeing to the terms of a Recommendation to be given by me.

[124] I consider the issuing of a Recommendation to be the preferred route, however such would require the agreement of all concerned. The suggested terms of a Recommendation are set out below, as are details of who would need to commit to the indicated action and through what mechanism.

Recommendation

[125] The context of the Recommendation I would issue is demonstrated poor behaviour at Miniso in both directions. Mr Chen was not listened to about his bullying complaints and the content of and manner by which the Letter of Concern and Directions Letter were issued was not reasonable. In turn, Mr Chen pushed the boundaries of reasonable complaint about his managers far too far and he ignored a request to meet, likely fearing what would be said to him in the meeting. All of those circumstances are smothering the work of a previously good performer; ruining the possibility of constructive relationships between two managers in the same reporting line and ultimately leaving him open to disciplinary action, either for established poor performance or misconduct (but of course, only were those things to be the case).

[126] The objective of these proceedings, as well as for a recommendation must be to ensure the present mutually poor working relationships are overcome. The person who says “but I don’t have a poor working relationship with anyone” is probably the one most in denial and the one who most needs to actively change what is evidently happening. For the work of a recommendation to have any likelihood of success it will need each of the people in the group to be actively involved. The group to which I refer for the purposes of the Recommendation is Mr Chen, Ms Yan, Mr Lo and Ms Tan and Ms Yip (whom I collectively refer to as the Miniso Group).

[127] The actions I recommend be taken by the Miniso Group, subject to ascertaining the views of all concerned, are:

•  Within 2 months of the date of this decision Miniso should:

•  Revise its bullying policy so that it provides a clear process for making complaints about workplace harassment or bullying; the means by which it is investigated at arms-length to both the complainant and the person complained about; and the timeframes in which complaints are investigated and concluded;

•  Revise its Personal Leave policy so that it is consistent with the NES;

•  Provide training on the avoidance of workplace bullying to each person in the Miniso Group, ensuring that each person within the group undertakes the training. The training should be provided by a suitably qualified independent trainer external to Miniso or its solicitors;

•  Within 2 months of the date of this decision Ms Yan and Mr Chen:

•  Should agree to participate in a mediation facilitated by an independent and accredited mediator (that is, not one employed within Miniso or its solicitors) in which they discuss their concerns about the other, with the objective of documenting agreed expectations of each other and an agreed communications process; and

•  Should discuss, agree and document an agreed framework for ongoing reporting and performance assessment;

•  The Letter of Concern and Directions Letter should be withdrawn in return for a written acknowledgement from Mr Chen that the way he raised his concerns about the Victorian restructure was inappropriate.

•  By accepting the terms of the Recommendation, each person in the Miniso Group other than Mr Chen will be taken to apologise to Mr Chen for their part in any unreasonable conduct to him; and Mr Chen in turn will be taken to apologise for his unreasonable conduct toward each other member of the Miniso Group.

[128] If Miniso and each person in the Miniso Group agrees to the issue of a Recommendation I shall issue formally one in terms consistent with the above, after which the file in this matter will be closed.

[129] As a consequence, Miniso and each person in the Miniso Group is directed to discuss the proposal for a Recommendation between each other and then advise the Commission and each other within 14 days of the date of this decision whether they will accept the conclusion of this matter on the basis of the issuing by me of a Recommendation in terms consistent with the above.

Further Evidence – Alternative if Recommendation not to be accepted by the Miniso Group

[130] If there is no agreement to completing this matter through a Recommendation, directions will be issued for the matter to be relisted for the taking of further evidence as follows:

•  Ms Yan and Mr Lo will be required to each file a further witness statement and give oral evidence detailing their knowledge of the decision to draft and provide Mr Chen with the Letter of Concern and Directions Letter and the circumstances by which those letters were communicated to him:

•  Miniso will be invited to bring forward as its witnesses Ms Tan and Mr Yip to also give evidence on the above matters with each filing a comprehensive witness statement on those subjects and to then each give oral evidence as well. Should Miniso decline to bring Ms Tan and Mr Yip forward as its witnesses, the Commission will after giving each the opportunity to be heard on the subject give consideration to issuing an order for their attendance for the same purpose.

[131] After the taking of further evidence and hearing such further submissions as each party may care to make the Commission will issue a final decision about this application.

[132] Since the taking of further evidence and the associated steps will not be necessary if the application is concluded through a Recommendation, Directions relating to the taking of further evidence, etc will not be issued until after the views of all concerned have been sought about a Recommendation.

COMMISSIONER

Appearances:

Mr. S Chen for himself

Mr M. Baroni of Counsel for the Persons Named and Employer Principal

Hearing details:

Melbourne (via video conference);
15, 16 and 24 June;
2021.

Final written submissions:

Applicant Closing Submissions: 12 July 2021

Persons Named and Employer Principle Closing Submissions: 23 July 2021

Printed by authority of the Commonwealth Government Printer

<PR733293>

 1   Amie Mac v Bank of Queensland Limited & Others [2015] FWC 774, 247 IR 274, [99].

 2   Re SB [2014] FWC 2104, [42].

 3   Amie Mac, [89].

 4   Ibid, [95].

 5   Re SB [2014] FWC 2104, [48].

 6   Ibid, [49]

 7   Ibid, [50]

 8   Bropho v Human Rights & Equal Opportunity Commission (2004) 135 FCR 105 at [79]

 9   See Von Stieglitz and Comcare [2010] AATA 263 at [67]

 10   See the discussion in Department of Education & Training v Sinclair [2005] NSWCA 465.

 11   Keen v Workers Rehabilitation & Compensation Corporation (1998) 71 SASR 42.

 12   Re SB [2014] FWC 2104.

 13   Re SB [2014] FWC 2104 [44]–[ 45].

 14   Newcastle Wallsend Coal Co Pty Ltd v Workcover Authority (NSW) (Inspector McMartin) [2006] NSWIRComm 339; 159 IR 121 at [301].

 15   Thiess Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252, 78 NSWLR 94 at [65]-[67]; Abigroup Contractors Pty Ltd v WorkCover Authority of New South Wales (2004) 135 IR 317 [58].

 16   Macquarie Concise Dictionary definition.

 17   Ms SB [2014] FWC 2104.

 18   Burbeck v Alice Springs Town Council [2017] FWC 4988, [139], [154].

 19   Applicant Document “Timeline”, filed 17 May 2021, Hearing Book, p.66.

 20   Exhibit A1, Applicant’s Outline of Submissions, 17 May 2021, Hearing Book p.46.

 21   Ibid.

 22   Miniso emails, 11 June 2021 and 15 June 2021.

 23   Transcript, PN 120 – 121.

 24   Transcript, PN 130 – 131.

 25   Exhibit R2, Witness Statement of Angeline Yan, 7 June 2021, [4]; Hearing Book p.126.

 26   Exhibit R4, Witness Statement of James Lo, 7 June 2021, [4]; Hearing Book p.113.

 27   Ibid, [5].

 28   Exhibit A1, Applicant’s Outline of Submissions, 17 May 2021, Hearing Book p.47.

 29   Ibid, pp.46 – 47.

 30   Exhibit R2, [4]; Hearing Book, pp.126 – 127.

 31   Exhibit R4, Witness Statement of James Lo, 7 June 2021, [4]; Hearing Book, p.113

 32   Exhibit R4, Witness Statement of James Lo, 7 June 2021, [5]; Hearing Book, p.113.

 33   Transcript, PN 755 – 763.

 34   Applicant Document “Timeline”, filed 17 May 2021, Hearing Book, p.65.

 35   Transcript, PN 958 – 960.

 36   Transcript, PN 1210.

 37   Respondent Document “Letter to Mr Chen”, 1 March 2021; Hearing Book, p.107.

 38   Transcript, PN 1244.

 39   Exhibit R4, Witness Statement of James Lo, 7 June 2021, [7]; Hearing Book, p.114.

 40   Transcript, PN 922 – 925.

 41   Transcript, PN, 985.

 42   Exhibit R4, [4]; Hearing Book, p.113.

 43   Applicant Document “Email to Ms Yan and Mr Lo”, Hearing Book, p.30.

 44   Applicant Document “Email to Mr Chen”, Hearing Book, p.28.

 45   Exhibit R4, Witness Statement of James Lo, 7 June 2021, Annexure B, Hearing Book, p.119.

 46   Applicant Document “Email to Ms Yan and Mr Lo”, Hearing Book, p.37.

 47   Applicant Document “Email to Mr Chen”, Hearing Book, p.36

 48   Applicant Document “Timeline”, filed 17 May 2021, Hearing Book, p.65

 49   Transcript, PN 725 – 731.

 50   Exhibit R4, Witness Statement of James Lo, 7 June 2021, [10]; Hearing Book, p.114.

 51   Applicant Document “Email to Mr Chen” Hearing Book, p.63.

 52   Exhibit R4, Witness Statement of James Lo, 7 June 2021, Annexure C, Hearing Book, pp.120 – 121.

 53   Exhibit R4, Witness Statement of James Lo, 7 June 2021, Annexure D; Hearing Book, p.122.

 54   Applicant Document “Email exchange between Mr Chen and Miniso”, Hearing Book, pp.61 – 63.

 55   Applicant Document “Email from Mr Yip to Mr Chen”, Hearing Book, pp.44 – 45.

 56   Attachment to Form F72 (Application Form); filed 2 March 2021, Hearing Book, p.20; see also Transcript, PN 98 – 110.

 57   Transcript, PN 813 – 818.

 58   Form F72, (Application Form), filed 1 March 2021, item 2.1; Hearing Book, p.10.

 59   Form F74 (Angeline Yan Response Form), filed 16 March 2021, item 2.3; Hearing Book, p.102.

 60   Form F74 (James Lo Response Form), filed 16 March 2021, item 2.3; Hearing Book, p.92.

 61   Exhibit R2,, [4]; Hearing Book, p.126.

 62   Applicant Document “Email to Ms Yan and Mr Lo”, Hearing Book, p.30.

 63   Applicant Document “Timeline”, filed 17 May 2021, Hearing Book, p.67.

 64   Applicant Document “Email to Mr Yip and Mr Lo”, Hearing Book, p.40.

 65   Miniso Employee Handbook 2020, p.17.

 66   Exhibit R4, Witness Statement of James Lo, 7 June 2021, Annexure C, Hearing Book, p.120.

 67   Applicant Document “Email exchange between Mr Chen and Miniso”, Hearing Book, pp.61 – 63.

 68   Applicant Document “Email to Ms Yan and Mr Lo”, Hearing Book, p.30.

 69   Applicant Document “Email to Mr Chen”, Hearing Book p.28.

 70   Form F74 (Angeline Yan Response Form), filed 16 March 2021, Attachment, Hearing Book, p.107.

 71   Exhibit R5, Respondent’s Outline of Submission, 7 June 2021, [17]; Hearing Book, p.111.

 72   Miniso Employee Handbook 2019, pp.18 – 19.