Fair Work Act 2009

s.789FC - Application for an order to stop bullying

James Figueroa, ROCOM PTY LTD T/A Barbagallo Motoring Group

• [1] On 20 December 2024, Mr James Gower (Mr Gower or the Applicant) lodged an application with the Fair Work Commission (the Commission), pursuant to section 789FC of the Fair Work Act 2009 (Cth) (the Act).

• [2] Mr Gower alleges that he has been bullied at work during his employment with ROCOM PTY LTD T/A Barbagallo Motoring Group (the Employer) by Mr James Figueroa (Person Named) who is the manager of Mr Gower.

• [3] The parties do not dispute that Mr Gower is a worker of the Employer and that the Employer is a constitutionally covered business for the purposes of section 789FD of the Act.

• [4] The matter was not resolved at conciliation and as a result a hearing was held on 8 April 2025 to determine the dispute. I granted permission pursuant to section 596 of the Act for all parties (Mr Gower, the Employer, and the Person Named) to be represented at the hearing.

• [5] For the reasons outlined in this decision, the application is dismissed.

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

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

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:

(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."

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

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

(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

• [8] Mr Gower alleges that the Person Named has been bullying him in the workplace from early 2023 up until Mr Gower commenced a period of personal leave in September 2024. It was the evidence of Mr Gower that the Person Named's unreasonable conduct included the following:

• Impolitely communicating with the Mr Gower by text message when advised that Mr Gower had Covid and was on personal leave;

• Making false accusations and spreading rumours about other staff in relation to an alternative role;

• Berating the Mr Gower for the way in which he prepared a breakfast platter;

• Publicly and privately berating the Mr Gower before and during the sale of a car;

• Unreasonably refusing the Mr Gower's request for two day's leave with 6 months' notice; and

• Sending a "scathing" email accusing Mr Gower of acting against the Person Named's instructions.

• [9] Mr Gower submits that the conduct of the Person Named was not reasonable management action nor was it carried out in a reasonable manner. Mr Gower submits the conduct of the Person Named has created a risk to the health and safety of Mr Gower, which has resulted in an actual injury and psychological harm for which he is currently seeking treatment for. Accordingly, due to the conduct of the Person Named, the Applicant contends that the Employer has not provided a safe workplace. Mr Gower initially raised his issues with the Person Named internally to the Employer. Mr Gower submits that the internal investigation did not resolve the dispute and was overly reliant on the word of the Person Named. Further, Mr Gower challenged the accuracy and reliability of the evidence provided by the Person Named.

• [10] Mr Gower provided a copy of a medical report, dated 6 March 2025, which confirmed he was suffering from an adjustment disorder and depressed mood; Mr Gower submits that this is due to the conduct of the Person Named.

• [11] Mr Gower's wife gave evidence on his behalf; her evidence mainly concerned the personal impact the situation has had on Mr Gower and her experience as his support.

• [12] The Employer submits that the application should be dismissed under section 587 of the Act, as the application has no reasonable prospects of success.

• [13] The Employer submits that it sought to engage with Mr Gower and relocate him to an alternative position within in the business, away from the Person Named. However, the Employer notes, Mr Gower declined this arrangement.

• [14] The Employer submits that Mr Gower's request for the Commission to make an order that the Person Named is transferred to another division of the business is outside the scope of the Commission's powers and that the orders sought by Mr Gower are not commercially or practically viable.

• [15] The Employer submits that the application should fail as there is no risk of future bullying given Mr Gower has indicated he does not wish to return to the workplace in the same position or in an alternative position with the Employer.

• [16] The Employer submits that the allegations of the Person Named bullying Mr Gower are sparse, unclear, and consist of opinion and speculation_._ The Employer notes that many of the allegations concern uncorroborated verbal exchanges between Mr Gower and the Person Named and therefore cannot be substantiated.

• [17] The Employer submits that Mr Gower is an unreliable witness at hearing and was unwilling to make concessions in giving evidence. The Employer submits that the Person Named was willing to make concessions in his evidence and that the Commission should prefer the evidence of the Person Named.

• [18] Ms Wendy Jeffrey-Lonnie (Ms Jeffrey-Lonnie) is an external Human Resources Consultant engaged by the Employer. It was the evidence of Ms Jeffrey-Lonnie that, in her professional opinion, the conduct of the Person Named did not constitute workplace bullying or harassment. Instead, Ms Jeffrey-Lonnie believed it was reasonable management action conducted in a reasonable manner.

• [19] As an example, Ms Jeffrey-Lonnie produced an email which had upset Mr Gower (dated 12 to 13 September 2024). Ms Jeffrey-Lonnie suggests that the emails from the Person Named were direct and expressed frustration, but not abusive or threatening and did not contain personal attacks, the email expressed disappointment but was not belittling or demeaning towards Mr Gower.

• [20] Having reviewed the email, I would consider that the tone of the email from the Person Named to Mr Gower was unprofessional. However, there is no evidence to suggest that emails such as this were sent on a regular basis by the Person Named to Mr Gower, had this been the case, this could have constituted workplace bullying.

• [21] Ms Jeffrey-Lonnie confirmed that many of the other allegations were not substantiated or corroborated by other employees. Ms Jeffrey-Lonnie noted this included the garlic comment. Ms Lonnie confirmed that the text message sent by the Person Named to Mr Gower when he had COVID appeared to be confirmation that Mr Gower was not attending work and was reasonable management action in the context of the messages.

• [22] The Person Named (Mr Figueroa) denies the allegations that he has bullied Mr Gower in the workplace. It was the position of Mr Figueroa that some of the issues raised by Mr Gower either did not occur or did not occur in the manner that Mr Gower presented them. An example of this was the alleged comment he made to the effect of Mr Gower stinking of garlic. Mr Figueroa denies that the used the term you stink and states that he asked Mr Gower if he had been eating garlic, as he had received a comment from a customer about there being a smell of garlic in the confined space.

• [23] Mr Figueroa also asserts that at no time did he berate or abuse Mr Gower regarding the food platters and champagne which is provided to clients when receiving a new vehicle. It was the evidence of Mr Figueroa that, given the luxury nature of their products (including vehicles above $700,000), bespoke service, and the nature of their clientele, the delivery of a new car is treated accordingly, it is a special event. Mr Figueroa explains that, in this context, it was reasonable management action to raise concerns over the quality of the platter provided by Mr Gower to a client.

• [24] Mr Figueroa also explains that, when Mr Gower was absent from work on leave with COVID-19, he contacted him to ensure he had put in sick leave for the days he was absent, as this was requested by payroll. Mr Figueroa believes that this was also reasonable management action.

• [25] It is not uncommon for strained interpersonal relationships to exist in the workplace, especially between managers and subordinates. From the evidence that has been presented to the Commission, it is evident that Mr Gower and the Person Named have a strained relationship. However, there is a significant difference between a strained relationship and workplace bullying.

• [26] I have decided to dismiss the application of Mr Gower. I do so for the reasons outlined below.

• [27] I have considered the witness evidence of Mr Gower, and the Person Named, and the submissions regarding the reliability of both. Having considered the testimony of the witnesses, I have formed the view that the evidence of the Person Named is to be preferred.

• [28] I have formed the view that the relationship between Mr Gower and the Person Named was at times strained, due to interpersonal differences and conflicting personalities. It seems that the Person Named may at times come across too abrasive for Mr Gower. However, I am not satisfied this could be considered more than a lack of personal compatibility rising to the level of bullying.

• [29] Having considered the evidence of Ms Jeffrey-Lonnie and the Person Named, I have formed a view that several of the issues raised by Mr Gower were either exaggerated or provided out of context. As such, I am not satisfied that these situations were instances of workplace bullying.

• [30] Mr Gower is not presently at work and given his workers compensation claim and it remains unclear as to when or if Mr Gower will return to the workplace. However, as things stand, he is not at risk of bullying in the workplace as he is unable to attend work and there is no information as to when or if he will be able to return to the workplace.

• [31] On the evidence that has been provided to the Commission, I am not satisfied that Mr Gower has been bullied at the workplace by the Person Named. From the evidence and submissions of the parties, I have formed the view that some of the communication between the Person Named and Mr Gower could have been handled in a more professional and level-headed manner by the Person Named.

• [32] However, on the evidence before me, and in the circumstances of this matter, I am not satisfied that the conduct of the Person Named rises to the level of workplace bullying. From the evidence before me, I believe that the Person Named has conducted reasonable management action and, on the most part, in a reasonable manner, the exception to this being the email of 12 September 2024. I am not satisfied that the Person Named has engaged in repeated conduct that would constitute the action being workplace bullying. Although I acknowledged that, on 12 September 2024, the Person Named sent an email in which he was clearly frustrated by the actions of Mr Gower and did not communicate this in an appropriate manner. I am not satisfied this problematic incident strongly supports a finding that bullying has occurred.

• [33] I also note that the Employer has previously sought to resolve the matter with Mr Gower by offering him the opportunity to work in another department away from the Person Named. However, Mr Gower declined this offer.

• [34] Having considered the submissions and evidence of the parties, I have determined that, at present, I have determined that the conduct in question either did not occur, was not bullying, or was reasonable management action conducted in a reasonable manner (with the single incident that was exception noted above). Furthermore, I am not satisfied Mr Gower is at risk of future bullying, as I am not satisfied bullying has occurred. Relevantly, I also note that Mr Gower is unable to attend the workplace and there is no timeframe as to his potential to return.

• [35] Having determine that Mr Gower was not bullied and is not currently at risk of future bullying by the Person Named, the application is dismissed.

• [36] An Order is issued concurrently.[1]

P Mullally of Workclaims Australia for the Applicant.

C Fordham of HHG Legal for the Employer and Person Named.

[1] [PR790663].

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