Katherine (Kate) Burbeck v Alice Springs Town Council; Georgina Davison;... [2017] FWC 4988 | Case summary

[2]Katherine (Kate) Burbeck v Alice Springs Town Council; Georgina Davison;... [2017] FWC 4988 | Case summary | Zoe

[25]

[7] Ms Burbeck presented her own case to the Commission and was assisted by Mr Ken Turner, who is also an employee at the Council.

[8] Mr Chris Turner, solicitor, and Mr K McCann, both of whom are employed by the ASTC, represented Ms Davison, Ms Price and Ms Fisher and the interests of the ASTC.

[9] Ms Burbeck has been employed by the ASTC in the Alice Springs Public Library since 2005. Her present position is that of Children's and Youth Services Officer. She was on long service leave until April 2016 and during the period she was away, Lynda Wickham moved into a newly created position of Programs Team Leader and Ms Burbeck commenced reporting to her. Prior to Ms Wickham being appointed to that position Ms Burbeck had reported to Ms Davison, the Library Manager.[1]

[10] Ms Burbeck has not been at work since October 2016, when she proceeded on leave.

[11] Following discussion by me with the parties in a conference prior to the formal start of proceedings, six broad matters were agreed as requiring determination in this decision as to whether any, some, or all were bullying;

Performance counselling - a decision by ASTC to commence performance counselling Ms Burbeck after a performance appraisal meeting on 22 June 2016;

The "respect" email - a decision by ASTC to investigate Ms Burbeck's conduct in relation to an alleged Code of Conduct breach as a result of her reply to email from her Manager on 23 June 2016 seeking team members adhere to certain organisational cultural matters, including showing respect to each other;

Two workplace grievances - ASTC's dealing with two workplace grievances lodged by Ms Burbeck during July 2016;

The First Allegations letter - ASTC's decision to issue a letter on 12 October 2016 alleging Ms Burbeck had breached its Code of Conduct and requiring her attendance at a meeting to answer the allegations set out therein;

The Second Allegations Letter - ASTC decision to issue a letter on 20 October 2016, also alleging Ms Burbeck had breached the Code of Conduct and also requiring her attendance at a meeting to answer the allegations set out within the letter;

The February 2017 annual leave approval revocation - the decision of ASTC to revoke approval for Ms Burbeck to take annual leave in February 2017.

[12] Ms Burbeck's submissions and evidence to the Commission raises more claims than the foregoing matters. Since that is the case, I have had regard to all the evidence and that of the ASTC, and each of the witness statements provided by Georgina Davison, Skye Price and Claire Fisher in making a decision as to whether there has been workplace bullying involving Ms Burbeck.

[13] The six categories of alleged workplace bullying to which I have referred above are the categories I considered at the start of the determinative conference may be arguable as workplace bullying. No evidence led in the determinative conference caused me to form the view that additional categories of matters should be considered in detail for workplace bullying in this decision.

[14] Evidence was received in the determinative conference from Ms Burbeck, her psychiatrist, Dr Bernard Hickey. Each of the persons named, Ms Davison, Ms Price and Ms Fisher gave evidence on their own and on each other's behalf. Ms Biggi Gosling, the Council's Human Resources Manager also gave evidence on behalf of Ms Davison, Ms Price and Ms Fisher.

[29]

[18] The conduct to be considered is that of natural persons, given that there is no provision in Part 6-4B that suggests bullying at work is something which can be engaged in by a corporation;[8] however the individuals engaging in the unreasonable behaviour need not be workers, for example they may be customers.[9]

[19] Repeatedly behaving unreasonably implies the existence of persistent unreasonable behaviour and it might refer to a range of behaviours over time. There is no specific number of incidents required for the behaviour to represent 'repeatedly' behaving unreasonably. 'Unreasonable behaviour' should be considered to be behaviour that a reasonable person, having regard to the circumstances, may consider to be unreasonable.[10] Consideration of the question of whether an individual or group "repeatedly behaves unreasonably" will require a purposive approach and "unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification".[11] Further, for conduct to be reasonable it does not have to be the best or the preferable course of action, rather the conduct will be objectively assessed as to whether what was done was done "reasonably", not whether it could have been done more reasonably or differently.[12]

[20] It will be necessary for the Commission to determine whether the alleged behaviour actually occurred, and once the necessary findings of fact have been made, the Commission can then determine whether the behaviour was unreasonable.[13]

[21] In relation to the risk to health and safety of unreasonable behaviour, there must be a causal link; however, 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.[14] 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.[15]

[40]

[26] A performance appraisal pro forma was completed by Ms Burbeck and provided to her manager, Lynda Wickham, on 15 June 2016 and was the subject of discussions between the two and Ms Davison on 22 June 2016. Before Ms Burbeck met with the Council representatives, and after she had provided the pro forma to them, they had inserted in the document some feedback to Ms Burbeck both in respect of her own comments and matters they considered important to raise with her.

[27] Each of Ms Burbeck and the ASTC managers were unhappy in the discussion on 22 June 2016 with what had been expressed in different parts of the completed pro forma. In addition, Ms Burbeck puts forward that she was upset by some of the feedback given in the meeting about her communication style, which she considered to be unjustified. Two parts of the performance appraisal form were identified as potentially the subject of unjustified or unreasonable criticism.

[28] The first matter dealt with Ms Burbeck's consistency with what is referred to as a "personal" Council Value to the effect that "Council employees are adaptable, dedicated and demonstrate high personal integrity". In response to the question "[w]ere you consistently punctual?", Ms. Burbeck self-rated herself as "good" and commented "[s]ometimes I'm a little bit late but I stay after 5pm to make up for this. There are some days when I don't finish until after 5pm anyway." The feedback from the Management Representatives included an "unacceptable" grading and that "Kate needs to manage her time better. This includes consistently working a 7.6 hour day rather than using TOIL frequently. I also needed to insist that Kate came to work on a Wednesday at 8:30am as there were issues with being late for staff meetings. This instruction was followed."[19]

[29] The second matter relates to Ms Burbeck's consistency with the "internal" Council Value to the effect that "Council employees treat their fellow employees and the organisation with respect". In response to the question "[d]id you communicate and work effectively with others in your unit?", Ms Burbeck self-rated her alignment as "good", making the comment "I share my ideas and communicate with my colleagues". The Council's managers' response was that Ms Burbeck "needs work" and that "[s]ometimes Kate can come across as a little condescending. She does seem to try not to do this in meetings with whole of staff, however sometimes in one on one meetings she can come across this way. I'd like to see this improve in the coming year".[20]

[30] The three participants discussed this feedback in the meeting, with Ms Davison endeavouring to use some things said by Ms Burbeck in the meeting as illustrations of the feedback she had given.

[31] A comment that Ms Burbeck had been consistently late with reports to the ASTC was withdrawn with the managers agreeing the statement was not accurate.

[32] Ms Burbeck, through her written comments, as well as in the discussion in the meeting used the appraisal as an opportunity to give feedback to her managers and the Council about things she saw as needing improvement in the library and which by all accounts had been concerns held by her for some time. These matters included the need for consultation with employees about decision-making and that without consultation she was hindered in her ability to run existing programs to a sufficient quality. She also gave opinions about the library's organisational structure. Ms Burbeck's evidence is that she felt under attack and uncomfortable in the meeting.

[33] The product of the performance appraisal meeting was a view on the part of Ms Davison and Ms Wickham that Ms Burbeck needed greater supervision in the form of weekly meetings with Ms Wickham, as well as needing to undergo training on matters of communication and self-awareness. The former issue stemmed from Ms Davison's belief that some of Ms Burbeck's complaints about an unacceptably high workload may have stemmed from poor time management and priority setting. The latter issue stemmed from the managers' perceptions that Ms Burbeck could appear condescending and patronising in her communications to them and with other staff.

[34] Ms Davison's evidence is that the need for these subjects to be addressed was not only identified in the meeting, but both were also agreed by Ms Burbeck as matters for action. While I accept the subjects were identified in the meeting, I do not accept they were agreed as matters for action. It is more likely Ms Burbeck was told that action was to be pursued on the subjects, with that being a course she did not actively oppose.

[35] At the conclusion of the meeting on 22 June 2016, Ms Burbeck was not told either as a result of the matters discussed in the performance appraisal meeting or for any other reason, that she would be required to be involved in a formal performance management process.

[36] Ms Davison says that she avoided that term. However, straight after the performance appraisal meeting finished she went to see the Council's Human Resources Manager, Tony Jennison:

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[40] The decision taken by Ms Davison and/or Mr Jennison about the commencement of performance counselling of Ms Burbeck appears consistent with this clause. A person under a performance counselling plan, as that term is used within the ASTC Enterprise Agreement, is not necessarily subject to disciplinary action, unless the processes set out in Clauses B2.3 and B2.4 are involved. If those clauses are not invoked, the more appropriate description is that the employee is being managed in accordance with the standardised and agreed procedure set out within the Enterprise Agreement.

[41] Mr Jennison did not give evidence in these proceedings. Ms Davison's evidence, elliptical in many matters, includes her giving several different responses to the same or similar questions and her recollection being unclear in parts. Despite Ms Davison being reluctant to term what she had put to Mr Jennison as being matters of either "performance counselling" or "performance management" and endeavouring to put forward the view that these were merely to be weekly meetings with Ms Burbeck to ensure she was on track with her work, I find that her intention was actually to initiate a formal performance management process in respect of Ms Burbeck. Ms Davison's discomfort in using the terminology "performance counselling" or "performance management" is regrettable, and I have no doubt that it was her intention to put around Ms Burbeck's performance a formal process by which she could be called to account in the event there was no or insufficient change.

[42] On its own though this decision by Ms Davison and supported by Mr Jennison is not unreasonable conduct on their part and is instead reasonable management action carried out in a reasonable manner. Plainly, at the time each made their decision they had some concerns about Ms Burbeck's capacity to perform to the required standard on the two subjects referred to. It can hardly be unreasonable on the part of either of them or the ASTC to put in place the process they did. While Ms Davison's discomfort in using the terminology "performance counselling" or "performance management" may be regrettable, as well as hardly best practice, the avoidance of clear and specific communication to affected employees about their decisions is nonetheless a common fault found in many frontline managers.

[43] Because the decision by the ASTC to commence performance counselling of Ms Burbeck is not unreasonable conduct on the part of the Council or any person and is instead reasonable management action carried out in a reasonable manner, it is not conduct that would lead to a finding of bullying within the meaning of s.789FD(1) of the FW Act.

[138]

[67] A review of these two grievances and the process by which the Council considered them does not disclose any inappropriate or unreasonable handling. There is nothing within the process by which the matters were considered or decided upon which would disclose unreasonable conduct by any person toward Ms Burbeck.

[68] The outcome in respect of the first grievance is logical in the circumstance. Ms Burbeck had not been in attendance at the meeting and was not in a position to directly identify what may or may not have been said in the meeting. The information which the Council took into account included material from people who had been directly involved in the meeting. There is nothing within the material before the Commission which would suggest that the Council should not have accepted the direct evidence of those in attendance. Further, even had it accepted Ms Burbeck's contention that somehow comments made in the meeting were obviously referable to her, it would be well within the bounds of reasonable decision-making to conclude that the conduct complained about and its potential breach of accepted norms of behaviour in the Council was of a very low level and that no further action was required in relation to the complaint.

[69] There is no unreasonable conduct on the part of the ASTC in respect of Ms Burbeck in relation to her first July grievance. The actions of the ASTC in relation to the grievance were reasonable management action taken in a reasonable manner.

[70] The outcome in respect of the second grievance is similarly logical in the circumstance. The complaint is, within the context of my analysis of the performance appraisal meeting set out above, without foundation. There were behaviours on the part of Ms Burbeck that required correction through some mechanism. The Council was within its rights to require that be done within the performance counselling processes of the Enterprise Agreement. In the material Ms Burbeck provided to the Commission about this grievance she sets out at some length her contention that being told that her demeanour could be viewed as condescending by some amounted to defamation on the part of the person communicating that information to her:

[139]

"We discussed this point at some length. I asked Georgina what she was referring to with this comment. She told me that another staff member (she would not say who it was) had told her that I had been patronising to her. Georgina told me she thought I would benefit from some sort of selfawareness training, so I could become more aware of how I come across to others. I said that being patronising was a very subjective accusation, and that it was a matter of perception, not an objective evaluation of my performance. She said that it was her prerogative to put her opinion into my performance appraisal. I disagreed that the allegations had been substantiated. Georgina told me that during the meeting that we'd had to discuss my role, she recalled that I'd been patronising to her then also. She repeated some things she vaguely remember that I'd said, mimicking my assertive tone at the time. She claimed that it was partly because I'd used her name that she thought I'd been patronising. When I said that was just her perspective, she asserted firmly that it was the 'reality'. I said firmly, ''no, Georgina, it's subjective". She then said 'See! See! (pointing at me) you're doing it now! She then looked at Lynda for confirmation of this allegation. I signed the performance appraisal with the caveat that I wrote a comment on it stating that Georgina's comment about me being condescending was subjective and unsubstantiated, and such issues or complaints against me would be better addressed using appropriate methods. This comment about me is a defamatory, ad hominem attack on my character and it is damaging to my professional reputation. That it remains written on my performance appraisal constitutes defamation. Furthermore, if someone is telling other staff members that I have patronised them when this is an untrue statement which damages my reputation, and if Georgina is furthering this allegation without seeking evidence to substantiate it or refute it, both Georgina and the third party are guilty of slander"[38]

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[71] While that may be her view, it was apparently equally the view of those conducting the performance appraisal that there was some level of condescension exhibited on occasion by Ms Burbeck to others. Her supervisors were in a position to objectively assess that and communicate their concern to her. The fact that they did so is within their right as well as obligation to raise. An employee seen as being condescending to others may well not be complying with the relevant standards of workplace behaviour. It must be borne in mind that by the time of the performance appraisal Ms Burbeck had some apparent difficulty with Ms Wickham, whom she thought was underqualified, particularly in comparison with her own qualifications. Rather than attacking this feedback as being slanderous or defamatory Ms Burbeck may have been better advised to seek details of what was considered to be the condescending behaviour and accept that some change may be required in her communication style.

[72] In the overall context of the evidence before the Commission as well as considering the state of relationships between all concerned, Ms Burbeck's complaint that what had been said to her in the performance appraisal meeting amounted to "slander and defamation as well as bullying" is nothing more than overstated rhetoric. There is no evidence that anything said in the meeting fits the definition of any of those terms.

[73] There was no unreasonable conduct on the part of ASTC in respect of Ms Burbeck in relation to her second July grievance. The actions of the ASTC in relation to the grievance were reasonable management action taken in a reasonable manner.

[74] Because the Council's actions in relation to both of Ms Burbeck's grievances were not unreasonable conduct on the part of the Council or any person and is instead reasonable management action carried out in a reasonable manner, it is not conduct that would lead to a finding of bullying within the meaning of s.789FD(1) of the Act.

[177]

[81] Evidence given to the Commission includes that the Council did not do anything about Ms Burbeck's own complaint about Ms Wickham's behaviour. It did not consider that the complaint required investigation.

[82] After consideration of all the evidence on the matter there is some justification for the Council to have sought to discuss with Ms Burbeck her alleged conduct in the discussion with Ms Wickham and, if it was found wanting, to call her to account.

[83] Ms Burbeck presented to the Commission as an assertive person who is prepared to communicate to others what she perceives as her rights as well as to communicate anything which she considers to be an injustice done to her. However, it is apparent from all the evidence as well as Ms Burbeck's demeanour in the course of the determinative conference that she does not necessarily reciprocate by being prepared for others to raise with her injustices perceived to have been done to them. In short, the Commission can see how some of the workplace arguments that Ms Burbeck has complained about have taken place and have come to be perceived by her as inappropriate conduct by the other party without any concession that her own conduct may be in question.

[84] I accept what Ms Davison has to say when she says that she overheard the conversation between Ms Burbeck and Ms Wickham and that she believed Ms Burbeck had raised her voice. However, the evidence before the Commission is that this was probably unlikely to be an incident involving unduly raised voices. Ms Burbeck's recollection of the overall incident includes that the discussion was not an argument. Even if it was an argument, such things, as well as raised or loud voices, do occur in workplaces from time to time - even in libraries. However, not all arguments or occasions of loud or raised voices can or should be characterised as breaches of codes of conduct and the like. They may simply be arguments. To consider all arguments, loud or raised voices as breaches of codes of conduct and the like would be to import standards of conduct into workplaces that simply are not the standards to be expected of citizens in other parts of their lives. Much depends on the context of what happened.

[85] Ms Davison's judgement that the matter needed to be the subject of disciplinary action is likely coloured by her view, held by October, that Ms Burbeck was, or was becoming, unmanageable. Ms Price recalls at the time of drafting the First Allegations Letter that the issues surrounding Ms Burbeck appeared to be escalating.

[86] In overall context, a decision to pursue disciplinary action against Ms Burbeck in relation to this matter was unwise and bordering on unreasonable, for the reason that the evidence does not support that there was shouting or abusive words used in the exchange from Ms Burbeck to Ms Wickham; merely that she raised her voice, most likely in an assertive but not yelling manner, and that altogether she may have been brusque in the exchange with Ms Wickham. Ms Burbeck, of course, complains that Ms Wickham reciprocated, similarly raising her voice - but apparently not so much as to be, in Ms Burbeck's view, an argument - as well as breaching her confidentiality by raising issues regarding her performance counselling.

[87] However it is, of course up to individual workplaces to determine the standards of behavioural conduct they accept in their workplace, notwithstanding that not all arguments or loud or raised voices will be breaches of codes of conduct and the like. The relevant part of the Council's Code of Conduct does not meaningfully assist determination of this matter. Because Ms Davison, as the apparent complainant, overhead the conversation, and Ms Price considered that Ms Burbeck's behaviour had been escalating, as well as that it is not compellingly unreasonable to have required Ms Burbeck to attend a disciplinary meeting on the subject, I accept that the decision of Ms Price and the Council in this regard was open to them.

[88] However, that does not dispose of the question of whether the decision was unreasonable, and in finality, I consider it was. The decision not to similarly investigate Ms Burbeck's complaints about Ms Wickham pushes Ms Price's overall decision into the province of unreasonable conduct.

[89] Neither Ms Davison or Ms Price saw a need to take Ms Wickham to account for the allegations made against her by Ms Burbeck, who put forward in an email to Ms Wickham with a copy to Ms Davison that Ms Wickham had said loudly in a public area in front of other staff members that "this is what I mean about your time management, Kate", which was apparently a response to Ms Burbeck informing her that it would be difficult to complete certain work by the end of the day.[48] Ms Davison's reasoning for not investigating the complaint included that she had overheard the conversation and did not think Ms Wickham's conduct was problematic. Ms Price shared that view. However, in doing so, the Council denied Ms Burbeck the chance to put forward her version of the discussion and the points within it that Ms Burbeck saw as inappropriate or unreasonable on Ms Wickham's part. The failure to seriously consider Ms Burbeck's complaint about Ms Wickham disregards Ms Burbeck's complaint of provocation and looks like a pre-ordained decision by the Council, as if it were saying "we know what went on and have already determined you were in breach of the Code, but let's hear if you have anything to say in the way of mitigation before we determine the penalty".

[90] For that reason, I am unable to find that the decision in total was reasonable management action carried out in a reasonable manner, since there was no counterpart investigation of Ms Burbeck's complaint about Ms Wickham. Although it is noted by Ms Price that Ms Wickham had announced her retirement from the Council in July and that she intended to retire on 9 December 2016, the failure by Ms Price to be even-handed in her calling to account of the people involved, especially in the light of Ms Burbeck's written complaint about Ms Wickham leads to the conclusion that the Council's overall decision was not reasonable management action carried out in a reasonable manner.

[91] The finding is therefore open to the Commission that Ms Price's decision set out within the First Allegations Letter of 12 October 2016 which alleged Ms Burbeck had contravened the Council's Code of Conduct in the interaction she had with Ms Wickham on Friday, 7 October 2016 and initiated a disciplinary meeting was unreasonable conduct and was not reasonable management action carried out in a reasonable manner, which is a foundation element for a finding of bullying within the meaning of s.789FD(1) of the Act.

[208]

[96] Despite this endeavour to raise employee relations matters as swiftly and comprehensively as possible, there is no evidence that anything happened between 12 and 20 October 2016 that caused the Council to reasonably take the view that new matters of concern demanded being brought to Ms Burbeck's attention within a disciplinary context. There is also no explanation before the Commission about who looked for these extra matters, or why they had not previously been brought to Ms Burbeck's attention.

[97] The best that appears to be able to be said about the decision to issue the Second Allegations Letter is that the Council seemed to be attempting to be bringing to a head all of its grievances against Ms Burbeck. Perhaps it thought that if it was going to have a debate with Ms Burbeck about her demeanour and conduct and her future with the Council then it needed to roll everything into the one process.

[98] While that possibility is acknowledged, the decision ultimately is an unreasonable one. The matters complained about in the Second Allegations Letter, with the exception of the last two matters, items 5 and 6, are also rather old, each predating the 12 October 2016 First Allegations Letter, as well as never previously having been raised with Ms Burbeck by anyone, even verbally. The first four matters relate to Ms Burbeck's timekeeping and surely should have been the subject of a discussion between her and her front line supervisor rather than being escalated into a disciplinary meeting process. The fifth matter referred to in the correspondence is, of course, the subject of the First Allegations Letter, and the sixth relates to Ms Burbeck leaving the workplace on 12 October 2016, possibly without informing anyone, after being informed in the First Allegations Letter of the need to attend a disciplinary meeting on 17 October 2016.

[99] Notwithstanding that the motive of the Council may have been to roll into the one process all of its grievances about Ms Burbeck, that decision and the manner in which it did so was unreasonable and looks to be a process on the part of the Council to trawl for matters that may be held against Ms Burbeck in a disciplinary sense. Ms Price's decision to issue the Second Allegations Letter was unreasonable conduct and it was not reasonable management action taken in a reasonable manner.

[100] The finding is therefore open to the Commission that Ms Price's letter of 20 October 2016 which initiated a disciplinary meeting in relation to Ms Burbeck's response to the "respect" email of the same day was unreasonable conduct and was not reasonable management action carried out in a reasonable manner, which is a foundation element for a finding of bullying within the meaning of s.789FD(1) of the Act.

[209]

[101] Ms Burbeck has also raised a complaint that annual leave which had been approved in October 2016 was unjustifiably revoked in February 2017.

[102] The background to this is that Ms Burbeck applied for 15 days annual leave, apparently on 3 October 2016. Her leave application refers to the desired period of absence as being 13 February to 3 March 2017. She made the application in accordance with the requisite leave form. The initial application was rejected, a decision which Ms Burbeck considered to have been made on an incorrect basis, being that she would have insufficient leave accrued by the time of the leave. She took the matter up with the payroll department, who she says accepted there had been an apparent error, after which she resubmitted her leave application form. Ms Burbeck puts forward that a payroll officer informed her in December that the leave had been approved by payroll and that her resubmitted form was with Ms Price. Ms Burbeck was also aware that her leave was showing as approved on an intranet bulletin board and the Library's Outlook calendar.[52]

[103] In early February 2017 Ms Burbeck became aware that what she understood to be approval of her leave application approval had been revoked.

[104] When she had need to communicate with the Council regarding the fact that she would not be attending for work in the period 6 February to 12 February 2017 inclusive for reasons of medical illness, Ms Burbeck sent an email to the relevant officer making that fact known to them, as well as drawing to their attention the fact that she had learned her annual leave had been revoked. She asked the officer concerned, with a copy Ms Davison to have the leave reinstated.[53]

[105] Ms Davison responded shortly after thanking her for her advice that she would not be attending for work in the following week and advising that "your leave application was not approved as there wasn't enough available leave".[54] After receiving this advice from Ms Davison, Ms Burbeck queried whether its basis was factual:

[220]

• This is the last time I saw the form until I asked for a copy from Payroll Officer, Kylie Wells' files."[57]

[109] The material before the Commission indicates that Ms Burbeck was seeking 15 days annual leave between 13 February 2017 and 3 March 2017. When she made the application on 3 October 2016 the payslip for the pay period straddling that date (being for pay date 12 October 2016) refers to Ms Burbeck's recreation leave balance being 9.32 days. The payslip for the pay period straddling the date on which Ms Davison sent her email to Ms Burbeck (relating to pay date 15 February 2017) shows that Ms Burbeck had 17.81 days recreation leave accrued at that time. Ms Burbeck's email to Ms Davison on 5 February 2017 querying what had happened made the point that her "most recent payslip shows that I currently have 16.85 days of annual leave available. I had requested 15 days on the form".[58]

[110] In listening to the evidence on the subject, it would appear that there has been a miscommunication between a number of people including those within the payroll department as well as the lack of attention to basic management concerns both by Ms Davison and Ms Price. Why it could be that an employee is either told that she has insufficient leave when demonstrably her accrued leave balance is greater than the leave to be taken, or why it took so long to actually make a decision about the second leave application, are not matters that have been explained adequately to the Commission.

[111] In considering this matter overall, the refusal of the first leave application, made in October 2016 cannot be considered to be unreasonable conduct on the part of anyone in the Council. It may have been a mistake on their part, but then mistakes are hardly unknown.

[112] When she realised the basis of what she perceived to be an incorrect decision, Ms Burbeck was within her rights to make a second leave application, which she did, apparently in December 2016. At that time she was entitled to have a decision made about the leave application in accordance with the usual two constructs for consideration of leave applications - will there be sufficient leave accrued at the relevant time?; is it convenient for reasons of overall team and resource management for the leave to be taken?

[113] The ASTC Enterprise Agreement provides that the Annual Leave clause is to be "read with and is subject to Division 6 of Part 2.2 of the Fair Work Act 2009." (Clause F1.1.1). The Clause provides that "accrued annual leave may only be taken with the written approval of Council" and that annual leave may not be taken prior to its accrual. (Clause F1.2); further the taking of leave clause is to be read with and subject to s.88 of the Act (Clause F2.1.1). That section provides that an employer "must not unreasonably refuse to agree to a request by the employee to take paid annual leave".

[114] No argument of substance is put to the Commission that approval of the leave could not proceed on the basis of either team or resource management considerations. The reliance by Ms Davison in February on an insufficiency of accrued leave as being the basis for refusal of leave is plainly in error, and unreasonably so.

[115] The evidence is inconclusive about which of Ms Davison or Ms Price had the appropriate delegation to approve Ms Burbeck's leave. Irrespective, the finding can be made that in the face of Ms Burbeck's 5 February 2017 email contending that she had sufficient leave, Ms Davison had a duty to check whether that was actually the case. Had she checked and established that was factually correct she would likely have an obligation to either approve the leave or, if she did not have the requisite leave approval delegation, to inform the delegate that the leave should be approved. The fact that these things were not done by Ms Davison and/or Ms Price and/or such other officer who may hold the requisite leave approval delegation is unreasonable conduct and is not reasonable management action taken in a reasonable manner.

[116] The finding is therefore open to the Commission that Ms Fisher's revocation of Ms Burbeck's February 2017 annual leave was unreasonable conduct, as was the decision not to check Ms Burbeck's contention that she had sufficient accrued leave and, if so, to then not reinstate the leave approval. The same was not reasonable management action carried out in a reasonable manner. These findings are a foundation element for a finding of bullying within the meaning of s.789FD(1) of the FW Act.

[117] As set out in the analysis above, I am satisfied that four of the six allegations analysed in this decision amount to unreasonable conduct against Ms Burbeck and which are not able to be characterised as reasonable management action carried out in a reasonable manner. Those four matters are as follows:

The decision by ASTC to investigate Ms Burbeck for her conduct in replying on 23 June 2016 to her whole team to Ms Fisher's "respect" email;

The decision by ASTC to issue the First Allegations Letter, dated 12 October 2016 regarding the allegation of inappropriate conduct in a conversation with Ms Wickham on 7 October 2016;

The decision by ASTC to issue a Second Allegations Letter to Ms Burbeck on 20 October 2016 encompassing a range of matters not previously raised with her; and

The decisions associated with the revocation of approval for Ms Burbeck's February 2017 annual leave; including the failure to check she had sufficient accrued leave and if so, to reinstate the leave approval.

[118] In considering the risk that such conduct may have to a person's health and safety the Commission has held that the analysis involves a consideration of the possibility of danger and that the risk needs to be more than conceptual:

[225]

[121] Ms Burbeck's evidence is consistent with that of her psychiatrist Dr Hickey who, at the time of the determinative conference had seen Ms Burbeck on two occasions on 1 and 18 November 2016. His opinion is that Ms Burbeck "has adjustment disorder with depressed and anxious mood, caused by the work stress" and that he thinks the "remedy is through sorting out the work issue, and mediation".[64] However, this evidence is generalised and does not sufficiently connect the symptoms described with the conduct experienced, as well as being a diagnosis formed in November 2016, some time after the last time Ms Burbeck had been in the workplace. Necessarily, his report was based on her retrospective reporting of her reaction to things that had already happened, as opposed to being a report based on her apprehension about things that were possible future actions by her employer.

[122] Of the four matters found by me to be unreasonable conduct on the part of the Council, three occurred before November 2016 and two of those, the "respect" email and the First Allegations Letter, were before Ms Burbeck left the workplace on 12 October 2016 in a situation, she says, of some distress. The Second Allegations Letter was given to her after that date, and presumably in the knowledge the Council had of Ms Burbeck's claim of distress from the First Allegations Letter. The February 2017 annual leave revocation was also after that date and decided in the full knowledge of Ms Burbeck's claimed medical condition.

[123] Consideration of each matter on its own does not lead to the view that an adverse reaction to any one of the two decisions before 12 October 2016 was especially foreseeable. Every day of the week, people in workplaces are challenged about their behaviour or conduct, or may be asked to attend meetings to discuss allegations. Such adverse reaction as may arise for any single event of this type is, in the absence of direct knowledge of a known risk factor, unlikely to have foreseeable serious adverse health consequences. While one may be annoyed or concerned about being challenged about one's behaviour or conduct such annoyance or concern would only rarely lead to serious adverse health consequences.

[124] However, the fact that there were four matters over a relatively short period; that two of the decisions was after 12 October 2016, when Ms Burbeck's distress became apparent to the Council; and that each seems connected to the other in patterns of escalating tension means that by the time the Second Allegations Letter was issued the foreseeability of an adverse reaction to that and subsequent decisions was or should have been identifiable.

[125] However, the scale of that risk was not high and likely in the low to medium range. Such risk as there was must, in any event, be seen in the context of how both parties had got to that point.

[126] Firstly, I am unpersuaded that the actual risk of the conduct of the Council and people within it was much greater than a likelihood of creating a feeling of injustice, even when the compound effect of all four decisions is considered. Secondly, it is to be observed that, as discussed in several parts of the evidence referred to above, Ms Burbeck is an assertive employee, quite willing to defend herself and point out injustices that have been done to her. She has had ready access to, and availed herself of, assistance from a skilled union as well as a workplace lawyer. She has been prepared to challenge those injustices through a variety of forums including through the internal grievance process of the Council, as well as the Commission. Her overall assertiveness and resilience would likely have reduced the extent to which any unreasonable behaviour toward her created a risk to health and safety.

[127] Notwithstanding such view, the legislative requirement is to consider whether or not the repeated unreasonable behaviour created a risk to health and safety:- it did; albeit at a relatively low to medium level and because of the compounded effect of the four decisions.

[128] Accordingly, the Commission must make a finding that Ms Burbeck has been bullied at work within the meaning of s.789FD of the FW Act.

[232]

[136] Relevant to s.789FF(2)(a), there has been no investigation by or on behalf of the Council into Ms Burbeck's allegations. While the Commission is aware that Ms Burbeck has made a claim for workers' compensation benefits and that her claim requires investigation for that purpose, no evidence has been presented about the outcomes of that investigation, or of any other investigation that may have been undertaken.

[137] In relation to ss.789FF(2)(b) and (c), the ASTC Enterprise Agreement provides for a grievance procedure in Clause C1. The procedure is basic, providing only for discussion between an employee and their supervisor, the HR Manager and the Chief Executive Officer, and does not provide for a matter to be escalated to an external body, such as the Commission, whether for conciliation, mediation or arbitration. Ms Burbeck discussed certain of her grievances without success with the Council's Chief Executive Officer, Rex Mooney on 22 August 2016. The meeting was called by Ms Burbeck in furtherance of her rights under the Enterprise Agreement[65] and related to her belief that Ms Price had not properly investigated or decided the two grievances she had notified the Council about in July 2016. Ms Burbeck's evidence about the meeting was included that Mr Mooney "later rejected my grievances outright, stating that he could find nothing to support my complaints".[66] None of the Council's witnesses contradicted this evidence or elaborated on the matters that caused Mr Mooney to decide the matter in this way.

[138] None of the other matters about which Ms Burbeck is concerned, or alleges bullying, have been the subject of progression through the ASTC Enterprise Agreement procedures. Given the state of the relationships between all concerned and that the Enterprise Agreement does not provide for the referral of an unresolved dispute to the Commission or other neutral body, I do not consider that further utilisation of the grievance procedure would lead to a result agreed or accepted by the parties.

[139] In relation to s.789FF(2)(d), I consider Ms Burbeck's own conduct and behaviour has been unreasonable at times, which contributed to, or otherwise explains, the conduct and behaviour of the Council, Ms Fisher, Ms Davison and Ms Price.

[140] Matters such as this are rarely to be seen as involving universally poor behaviour projected toward one person, who then projects universally good behaviour to their protagonists. In many instances of actual or alleged bullying seen by the Commission there are elements of poor behaviour in both, or multiple directions.

[141] And so it is in Ms Burbeck's case.

[142] Ms Burbeck appears to have resented her supervisor, and what she perceived to be her lack of qualifications, especially when compared to her own. Far too much time has been taken up in the conciliation and arbitration of this matter about Ms Burbeck's concerns with Ms Wickham's qualifications for it not to be obvious that Ms Burbeck had a problem in reporting to Ms Wickham. She thought she was unqualified and was a liar, and it is likely that her own behaviour towards Ms Wickham and others in the management chain was less than exemplary as a result.

[143] The Council appears to have reasonably formed the view, relatively early after Ms Burbeck had returned from long service leave in April 2016, that Ms Burbeck needed to improve in respect of her timekeeping and her interpersonal communications with other staff. Neither of these matters is unfounded or unjustified in the evidence and neither is hardly a controversial matter to be put to an employee in the course of a performance appraisal meeting. The Council put those matters firmly and professionally to Ms Burbeck in the performance appraisal meeting held on 22 June 2016.

[144] At one level Ms Burbeck wants to be seen as impervious to these critiques of her performance, however she has not ever really engaged with the Council about either matter. Her attack on the decision to involve her in performance counselling in June 2016 is little more than a diversionary tactic: - while the attack is on foot it perhaps enables her to avoid the substance of the critique.

[145] The evidence before the Commission leads to the conclusion that Ms Burbeck likely does have a problem in adhering to the Council's timekeeping expectations and her demeanour was likely seen as wanting by some of her colleagues with there being some objective foundation to their perceptions. Identification of those matters in a performance appraisal meeting along with an expectation of improvement is hardly unreasonable, let alone bullying in the circumstances presented in this matter.

[146] Ms Burbeck's comments in her performance appraisal on the timekeeping question are illustrative as a first example of the Ms Burbeck's approach to time-keeping. In response to the performance appraisal question "[w]ere you consistently punctual?", Ms. Burbeck self-rated herself as "good" and commented "[s]ometimes I am a little bit late but I stay after 5pm to make up for this. There are some days when I do not finish until after 5pm anyway." This appears to be Ms Burbeck firmly saying "I will manage my own time".

[147] When the management representatives graded her timekeeping as "unacceptable" and stated "Kate needs to manage her time better. This includes consistently working a 7.6 hour day rather than using TOIL frequently",[67] it attracted a complaint of unfairness and was seen by her as bullying.

[148] The second example is when Ms Burbeck became distressed and left the premises on 12 October 2016 after being issued with the First Allegations Letter in which she was told she needed to attend a disciplinary meeting on 17 October 2016. After receiving the letter, she sent Ms Davison an email with the subject "I'm going home for home (sic) for the day".[68] Ms Burbeck says that after receiving the First Allegations Letter, she "was extremely stressed and left work on sick leave after notifying Georgina Davison via email".[69] Ms Burbeck's submission is that her email to Ms Davison amounts to notification of her intention to leave the premises early. Ms Price argues that when she left, Ms Burbeck did not advise anyone of her departure.[70] That characterisation of the circumstance is probably correct - Ms Burbeck got the letter; quickly typed an email to say that she was going home for the day, without ascertaining that Ms Davison had seen it; and then left without actually speaking with anyone. In a strict sense, the email may be a notification to the Council that she was leaving for the day, but in no sense does it satisfy the reasonable need of any employer to be informed by its employees of their whereabouts. The Council was entitled to expect more than an email.

[149] These examples illustrate Ms Burbeck's likely views about the matter of timekeeping: - it is her time to keep and she sees no need to conform to expected norms or directions on the subject from her employer.

[150] In relation to her interpersonal communications, there is sufficient evidence before the Commission to find that Ms Burbeck likely needs development in that regard. Rather than accepting criticism from her managers, she objects to what they might say. There is a pattern on such occasions of querying, seeking further information, challenging, debating, blocking and generally pushing back at all opportunities.

[151] Ms Fisher's "respect" email 23 June 2016 serves to illustrate these features of Ms Burbeck's communication style. The email from Ms Fisher to all staff is largely an uncontroversial communication from a front line supervisor to her staff with it being put forward that "your standards have been slipping; please pay attention to our values". While the efficacy of such a communication may be debatable, with success being dependent on the transgressors realising the communication is directed at them and then being sufficiently motivated to change, the email's content simply do not warrant reply even to Ms Fisher, let alone the wider team.

[152] Rather than accepting the cultural challenge posed by Ms Fisher, Ms Burbeck questions why the email was sent generally and not raised directly with the given employee or employees. She self-identifies as having been told her behaviour has been found to be patronising and challenges Ms Fisher - how did these issues come to your attention? In all, this technique of not accepting minor and otherwise relatively normal directions and always wanting the last word is both wearying as well as wearisome, and it is no way to run an employment relationship.

[153] Those matters - Ms Burbeck's disaffection with Ms Wickham and her unwillingness to meaningfully engage on the matters of her timekeeping and her interpersonal communications - have coloured the play-out of the employment relationship since mid-2016 for all apparent sides. As individual incidents, the matters are, or should be, relatively minor; however within this relationship the matters have escalated in the way traversed at length above.

[154] My findings of behaviour and conduct on the part of Council officers are therefore to be seen within the context of Ms Burbeck's own conduct and behaviour having a contributory effect. The presence of this contributory behaviour and conduct inevitably tempers consideration of what may be done about the conduct about which Ms Burbeck complains.

[155] After consideration of all of the relevant factors and evidence, I consider it to be appropriate to make an order in this matter, however I consider that any order should be limited to matters reasonably necessary to reset the employment relationship and to allow all concerned to move forward within those relationships on an even basis. In my opinion that basis needs to unequivocally:

Ensure Ms Burbeck is not subjected to the unilateralism of decision-making by the Council and its officers featured in those decisions I have found to be unreasonable conduct;

Ensure Ms Burbeck has confidence she will not be subject to further unreasonable decisions or conduct by the Council; and

Ensure the Council is able to raise with Ms Burbeck the concerns it has about her performance and have her act positively on those concerns.

[156] The Orders to be made by the Commission in this matter will be the following:

The requirement of Ms Burbeck issued in the meeting held on 29 June 2016 that Ms Burbeck apologise to Ms Fisher for the email she sent to the library team on 23 June 2016 is set aside and is of no effect;

The requirements for Ms Burbeck to respond to and answer the matters set out in the First and Second Allegations letters dated 12 October 2016 and 20 October 2016 are set aside and are of no effect and the Council is ordered not to take any further action in relation to the matters set out in those letters;

The Council is ordered to approve any future application made by Ms Burbeck for annual leave, provided that she has complied with the Council's leave applications processes and policies and that she has sufficient leave accrued to cover the period of leave applied for and that her absence from work on annual leave does not cause undue inconvenience for other library staff members or the library as a whole;

Ms Burbeck will participate in performance counselling on the two matters set out in the performance appraisal of June 2016 as requiring development on her part, namely issues associated with her timekeeping and interpersonal communication skills, with it being possible that performance counselling on those matters may include a request to attend skills development training;

The Council's next assessment of Ms Burbeck's performance in accordance with its standard performance appraisal system will be no earlier than four months from the date she returns to work;

Ms Burbeck will comply with and follow the Council's Code of Conduct and its policies and procedures on Time Off In Lieu and working hours and any directions given to her by the Council which are consistent with the Code, the policies and procedures;

The Council will, within two months of the date of these orders, arrange for the conduct of anti-bullying and positive communication training by an external provider for persons employed in its library and the training will be attended by Ms Burbeck, Ms Fisher, Ms Davison and Ms Price as well as the other employees of the library;

The Council will, within two months of the date of these orders, review its procedures for commencing disciplinary action (however described) against staff members; handling interpersonal or workplace bullying grievances raised by staff members; and for investigating complaints of workplace bullying.

Katherine (Kate) Burbeck v Alice Springs Town Council; Georgina Davison; Skye Price; Clare Fisher [2017] FWC 4988

At a glance

Court

Decision date

Source

Judgment (260 paragraphs)

Katherine (Kate) Burbeck v Alice Springs Town Council; Georgina Davison; Skye Price; Clare Fisher [2017] FWC 4988 (6 October 2017)

Parties

Legislation Cited (2)

Cases Cited (3)