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[36]
[2021] FWC 1364
General information, not legal advice.
Fair Work Commission
2021-03-18
Original judgment source is linked above.
s.789FC - Application for an order to stop bullying
[1] This decision concerns an application under section 789FC of the Fair Work Act 2009 (Cth) (the Act) for an order to stop bullying made by Ms Michelle D'Souza (Ms D'Souza or the Applicant). The application was filed on 9 July 2020.
[2] The Commission convened conferences in September and November 2020. However, the matter could not be resolved to the Applicant's satisfaction. Consequently, the matter proceeded to a hearing on 2 December 2020.
[3] Ms D'Souza works at the Woolworths Group Ltd (Woolworths or the Employer) supermarket in Alexander Heights, Perth (the supermarket).
[4] Ms D'Souza works at the supermarket as a night filler. Ms D'Souza has other employment as a relief schoolteacher.
[5] Ms D'Souza alleges she was bullied at work by Mr Ryan Burrows (Mr Burrows) and by Mr Matthew Sandon (Mr Sandon).
[6] At the hearing, Ms D'Souza was self-represented and gave evidence on her own behalf.
[7] Mr Burrows and Mr Sandon gave evidence. Evidence was also given by Ms Alicia Norgrove (Ms Norgrove), an employee relations specialist of Woolworths, and Mr Philip Miller (Mr Miller), who was the store manager of the supermarket between early 2019 and into 2020.
[8] Section 789FD of the Act defines when a worker has been bullied at work. This is set out below:
(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."
[9] Consequently, in determining this application, the Commission's role is to first decide whether an individual or a group of individuals repeatedly behaved unreasonably towards Ms D'Souza while she was at work, and whether that behaviour created a risk to health and safety.
[10] It is important to keep this in mind when considering the relevance of the evidence given at the hearing.
Factual findings and findings of unreasonable behaviour towards the Applicant
[11] Ms D'Souza has worked at the supermarket as a night filler for approximately seven years. Ms D'Souza was previously an accountant and throughout 2019 and 2020 had other employment as a teacher.
[12] At the supermarket, Ms D'Souza usually worked from 5pm to 10pm on Mondays, Tuesdays, Wednesdays, and Fridays, being 20 hours a week.
[13] The Applicant, having worked at the supermarket for a number of years, had a generally positive relationship with the people she worked with and her managers. However, from 2019, for reasons unknown, some tension became evident between her and some other employees.
[14] Her evidence was that in January 2019, Mr Sandon addressed her in a disrespectful and demeaning manner and swore at her. I find this incident actually occurred on 27 February 2019, although nothing turns on the date of the incident. Mr Sandon is understood to have been the "third-in-charge" of night fillers at this point in time.
[15] The Applicant gave very little evidence in her filed witness statement about this incident but rather relies on the evidence of Mr Burrows, which she submits supports her version of events. This, however, overlooks the fact that Mr Burrows was not present at the time this incident occurred[1].
[16] Mr Sandon's evidence-in-chief was that for whatever reason, his relationship with the Applicant had deteriorated prior to February 2019. He says that after the 27 February 2019 incident with the Applicant, the manager, Mr Miller, encouraged him to document what happened, for future reference, which he did. The contemporaneous note he recorded at the time of that incident was included in his statement[2].
[17] I accept Mr Sandon's evidence as to what occurred on 27 February 2019 over the hearsay evidence of Mr Burrows, who was not present.
[18] In summary, Mr Sandon's evidence was that on 27 February 2019, whilst they were both working, he asked the Applicant to do something for him regarding a particular product in a polite, respectful, and neutral tone, but the Applicant ignored him. He continued on with his tasks and then, seeing what she was doing, wondered if perhaps she had not heard him so again asked her about the product she was handling.
[19] Mr Sandon says the Applicant then turned to him with a blank expression. He then repeated his question about the product more urgently and was slightly annoyed and the Applicant shook her head and said, "No it's not Klip It". He came closer and looked at the product, which was of the general type he was asking her about, but he could see that, as she had replied, it was not the "Klip It" variant. Mr Sandon then told the Applicant that he also needed this particular variant of the product. Another employee had been present during this interaction. After this other employee left the aisle, Mr Sandon's notes state that the Applicant walked up to him, pointed her finger at him and said, "Don't you ever speak to me like that again".
[20] Under cross-examination, the Applicant agrees that she may have put her finger up towards Mr Sandon[3].
[21] Mr Sandon's contemporaneous notes say that he admits to then using an expletive when he responded to her saying, "Well maybe if you fucking answered me and actually talk like an adult this wouldn't have happened". The Applicant agrees that this is what he said[4].
[22] The argument then carried on between them and the Applicant later reported him for having spoken rudely to her.
[23] I accept Mr Sandon's evidence as to the detail of what occurred during this incident and his open admission that he did swear when he spoke to the Applicant.
[24] It is apparent that it was the Applicant who first behaved inappropriately by repeatedly refusing to properly acknowledge and respond to Mr Sandon's requests. Mr Sandon though did respond inappropriately using the one expletive. Only to this extent did Mr Sandon's actions amount to unreasonable behaviour.
[25] I note that in cross-examination, the Applicant's evidence was that her relationship with Mr Sandon at the time was cordial and she was adamant that this remained so after this incident[5].
[26] Mr Burrows is the night fill manager at the supermarket. He is responsible for managing the night fill team which is commonly made up of about 20 employees. Each night fill shift is generally performed by between 10-15 night fillers.
[27] Mr Burrows says Ms D'Souza is very good at her job and is particularly good at restocking those sections that have shelves which require a lot of attention to detail.
[28] Mr Burrows says he and Ms D'Souza had been quite good work-friends.
[29] On 17 May 2019, Mr Burrows and Ms D'Souza had an argument. Ms D'Souza filed a written complaint with the Employer on 8 June 2019 about this[6].
[30] Ms D'Souza's formal complaint, which runs to six pages, repeats their argument, and is summarised as follows.
[31] She walked past Mr Burrows and he said, "Next time make sure you go on break straight after the huddle".
[32] Huddles are meetings held at the beginning of shifts to raise any issues, receive feedback, and tell the team what is required for the night.
[33] Ms D'Souza replied, "No".
[34] Mr Burrows replied, "What?".
[35] She said, "I will go on break straight after huddle when you enforce it with all the other night fillers as well".
[36] She then walked to aisle 7. Mr Burrows followed and said, "What do you mean, when I enforce it with the other night fillers? Who are you talking about?".
[37] Ms D'Souza then named five other employees.
[38] Mr Burrows said it wasn't true.
[39] In her complaint, the Applicant says that she then listed detailed examples of her view of what other employees had been doing.
[40] Mr Burrows said, "Anyway, you are not allowed to have earphones at work!".
[41] She said, "Since when? You have always said you can have headphones so long as when Alex, Steve, or Phil are in, you take them out".
[42] She added, "Many of the other fillers still wear them!".
[43] Ms D'Souza then told Mr Burrows to "...go tell everyone else they shouldn't wear them, not just me".
[44] These exchanges carried on backwards and forwards between the two.
[45] Ms D'Souza says Mr Burrows said, "Are you going to say something? Or just say nothing like you always do and say nothing and then go and complain to management?".
[46] She replied "Are you asking me as a friend or manager? Do I need a witness?".
[47] Mr Burrows replied, "As a manager".
[48] She said she had nothing to say and "He was the one who was telling the story!".
[49] In Ms D'Souza's complaint to the Employer, she says Mr Burrows then started to have a go at her, becoming aggressive in his manner and speech, and shouting and speaking to her in a belligerent tone.
[50] She says Mr Burrows shouted at her, "You have a face like a smacked arse!" and repeated this comment several times.
[51] Mr Burrows said, "You have tickets on yourself if you think I was looking at you".
[52] Ms D'Souza says this was a reference to the fact that she had accused him of continually intimidating her during work by watching her more closely than others to see if she was doing her work, who was talking to her and how long customers were talking to her.
[53] She says Mr Burrows then told her that she makes everyone at the supermarket miserable. He said that all the other night fillers hated her. He insinuated that people she thought were her friends didn't really like her.
[54] Mr Burrows then told her that all the managers hated her, and they think that all she does is complain. He said that one of the other managers had had enough of her, didn't like her, and had told him to get her into line.
[55] Ms D'Souza, in her complaint, says that by this point, Mr Burrows was elevated in his behaviour and was shouting in an angry and intimidating manner at her.
[56] He told her she was rude when she didn't answer him.
[57] She says she replied that this was incorrect and that she didn't answer him in relation to work matters, but nothing other than that. She told Mr Burrows, "I am not here to be friends with people, but to get my work done". She told him his recent actions did not warrant her speaking to him on a personal level any longer.
[58] Mr Burrows accused her of not answering about how long she was on checkout when he had asked.
[59] She says she told him, "I am unable to estimate how long I am on checkout as I go on and off sporadically numerous times over the course of 3-4 hours of my 5-hour shift".
[60] She told him "...to check my login to checkout, to garner how much time I have spent on checkout, or ask the front-end supervisor...".
[61] Ms D'Souza told Mr Burrows she didn't know what the timeframe was as she was unable to estimate this time and didn't want to make up a false, inaccurate time.
[62] In Ms D'Souza's complaint, she says Mr Burrows continued to make disparaging remarks. He told her that if she was so unhappy there, she should leave. He said everyone would be so much happier if she left.
[63] The argument continued on backwards and forwards in the same vein for a further period of time. I accept Ms D'Souza's evidence regarding their argument.
[64] Mr Burrows, to his credit, admits that during this argument, he spoke and behaved inappropriately towards Ms D'Souza.
[65] I am satisfied that Mr Burrows behaved unreasonably towards Ms D'Souza during this argument on 17 May 2019.
[66] I note, again, that the above version of what occurred is summarised from Ms D'Souza's detailed written complaint that she later made to Woolworths.
[67] The next morning after this argument, Ms D'Souza rang the store manager and advised she would be on indefinite leave. She did not attend work for 2 weeks after this.
[68] Mr Burrows' evidence was that this argument came about because he let his frustrations with Ms D'Souza get the better of him.
[69] Following an investigation into this incident by Woolworths, Mr Burrows was given a first and final warning.
[70] When this occurred, Mr Burrows had only been the night fill manager for six months and says he was still finding his feet on how to deal with staff issues.
[71] On 17 May 2020, the day this argument occurred, he left a note for the store manager at the end of his shift to tell him that he probably stuffed up and there had been an issue with Ms D'Souza.
[72] Notably, in the last paragraph of the Applicant's formal complaint dated 8 June 2019, she says,
"Not once after the incident did Ryan reach out to me to apologise. He did not attempt to apologise to me until our meeting a week and a half later, and that was only because I had spoken to Phil about the matter, and Phil had spoken to Ryan. At no time did Ryan attempt to apologise and or appear genuinely contrite or remorseful for his actions, instead he tried to justify them at every turn."
[73] Over a week before the complaint was made on 8 June 2019 by Ms D'Souza, around Wednesday, 28 May 2019, Mr Miller arranged a meeting between himself, Ms D'Souza, and Mr Burrows at the tavern next door to the supermarket. The discussion between them went for more than an hour.
[74] Mr Burrows, I accept, apologised to the Applicant during this discussion. Ms D'Souza did not accept his apology.
[75] Mr Miller's evidence was that Ms D'Souza kept on criticising and questioning Mr Burrows' apology[7].
[76] The following Sunday, 2 June 2019, the Applicant sent a text message to Mr Burrows asking if he wants to talk so they can clear things up and move on[8].
[77] The text message conversation involved approximately 14 responses from each person. Relevant parts of the text conversation are summarised below.
[78] Mr Burrows replied that he didn't have much else to say that he hasn't already, and if she is that unhappy with how he is treating her, he is happy for her to take it to an outside party so it will get sorted. Mr Burrows said he is happy to listen if she has anything to add.
[79] Ms D'Souza asked whether Mr Burrows thought he had done anything wrong. He replies, "Yes.. that's what I apologized for". Ms D'Souza replied asking whether he was sorry for how he made her feel and the things he said.
[80] Mr Burrows replied, "I said there were things i said that were inappropriate and i was sorry i said them...". Ms D'Souza replies, "You hurt me".
[81] Mr Burrows replies, "Well I'm sorry about that.. but i believe the majority of the things i said although not delivered the proper way.. were warranted".
[82] This interaction continues on backwards and forwards.
[83] Mr Burrows apologised for anything he said that Ms D'Souza believes is below the belt, and he said he shouldn't have treated her that way, and that he should have dealt with the situation properly and shouldn't have said inappropriate things.
[84] Ms D'Souza responded by asking Mr Burrows in what way were the things he said inappropriate and asked him what she had done to deserve this. She further asked why he was apologising if he didn't think what he said was insulting and asked how what he said was unprofessional.
[85] In summary, Mr Burrows' contrition was not accepted by Ms D'Souza.
[86] Ms D'Souza's evidence is that some months later, Mr Burrows also wrote a letter of apology to her that he gave to the store manager to pass on to her.[9]
[87] I accept, without reservation, Mr Burrows' evidence that he has always regretted what occurred and what he said to Ms D'Souza on 17 May 2019 and he has explained this to her on a number of occasions and repeatedly apologised to her.
[88] The evidence is that Ms D'Souza, as is her choice, has never accepted any of Mr Burrows' apologies.
[89] Turning to other events, Woolworths has a rule in place that requires a night filler who is leaving the premises after shopping hours to be visually observed as they walk through the car park to their car. Ms D'Souza's evidence is that on 30 December 2019, Mr Burrows failed to do this. Mr Burrows opened the door for Ms D'Souza to leave the premises. However, he closed the door before she had reached her car.
[90] His evidence, which I accept, is that the reason he didn't follow the store practice properly on that evening was because he felt Ms D'Souza had been particularly uncooperative during the shift. When he farewelled her, he said something along the lines of, "Thanks, see ya", but she had ignored him and so he did not wait for her to reach her car before he closed the door.
[91] Ms D'Souza, as was her right, complained to Woolworths regarding this and Mr Burrows was warned in writing by the Employer, as a result[10].
[92] I am satisfied that this was unreasonable behaviour towards the Applicant.
[93] The Applicant alleges this also occurred on a number of other occasions involving a number of other staff members. There is, however, no probative evidence for the Commission to be satisfied that there were further instances of this behaviour towards the Applicant. I accept the evidence of Mr Burrows that in his case, this occurred on only this one occasion and the evidence of Mr Sandon that he did not do this.
[94] Ms D'Souza's evidence is that numerous further alleged bullying incidents occurred after May 2019 that were directed towards her and happened repeatedly. She listed these as follows:
Being given heavy pallets;
Work that was undesirable to all staff was given to her;
Her workload was excessive compared to others;
Whilst expected to complete her standard duties, she was also expected to attend checkout. No other staff member was expected to do this same level of work;
Mr Burrows managed only her breaktimes, and no one else's;
Mr Burrows would bark orders at her from the top of aisles, speak to her in a patronising and belittling way, micromanage her, and scrutinise only her interactions with customers and staff;
Mr Burrows stopped allocating extra shifts to her, as he previously had;
Mr Burrows sent a "Merry Christmas" message to all the night fill staff except for her;
At various times, Mr Matthew Sandon and Mr Chris Sandon attempted to intimidate her by standing in her way and restricting her access;
Mr Matthew Sandon and Ms Molly Crozier would move her cages and pallets;
Mr Matthew Sandon would leave rubbish and unwanted items on her cages and pallets;
Mr Matthew Sandon removed her from her aisle, yet no other staff members routine was altered like hers was, and he also muddled the contents of her cages.
[95] In her statement and submissions, she provides details regarding these further alleged bullying incidents. The Applicant, however, has not provided evidence of probative value to satisfy the Commission that these incidents involved unreasonable behaviour towards her.
[96] Ms D'Souza also relies on a series of concerns she held regarding what can be characterised as alleged poor management of a range of other workplace issues, including employee break times, huddles, extra shifts, the wearing of earphones, working at checkout, and riding on pallet jacks, amongst other issues.
[97] The evidence of Mr Burrows and Mr Sandon was responsive to these further alleged bullying incidents and to the workplace issues. Their evidence was that Ms D'Souza is not correct in her beliefs regarding these matters and none of these involve unreasonable behaviour towards her. I accept their evidence, which was not challenged in cross examination.
[98] Whilst I accept the Applicant may, in respect of some of these incidents and issues, have reason to be dissatisfied, it is not the Commission's role in an application such as this to critique moment-by-moment management decisions and actions that do not amount to bullying. Rarely can managers satisfy all their subordinates all the time.
[99] For this application, I am not satisfied that the evidence demonstrates objectively that these further alleged incidents of bullying and other workplace issues involved an individual or individuals behaving unreasonably towards the Applicant.
[100] It is appropriate to note that the evidence about the interactions between Ms D'Souza and Mr Burrows, her manager; and Ms D'Souza and Mr Sandon, the "third-in-charge"; is that at times Ms D'Souza was disrespectful, discourteous, argumentative, and unreasonably critical.
[101] On the evidence above, I am satisfied that at work, an individual or a group of individuals repeatedly behaved unreasonably towards the Applicant.
Did unreasonable behaviour create a risk to health and safety?
[102] I will now consider whether the instances of unreasonable behaviour towards the Applicant I found have occurred create a risk to health and safety.
[103] Commissioner Hampton, in the matter of G.C.,[11] considered the requirement of section.789FD(1)( b) of the Act, as follows:
"[50] 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. The ordinary meaning of 'risk' is exposure to the chance of injury or loss. In the sense used in this provision, the risk must also be real and not simply conceptual." (footnotes omitted)
[104] Individual employees will be affected differently by the same events or in some cases, will not be affected at all.
[105] The evidence of Ms D'Souza, which I accept, is that because of her experiences in the workplace, including the instances of unreasonable behaviour that had occurred, she has experienced depression, stress, and anxiety. The consequence has been her having to take sick leave. Her evidence is she has also been diagnosed with a psychological disorder.
[106] In support of this evidence, Ms D'Souza has provided letters from two health professionals, which appear to be medical opinions sought for the purposes of a WorkCover claim. These are summarised as follows.
[107] The first letter dated 18 June 2020 is from Dr Frederick K F Ng (Dr Ng). Dr Ng is a psychiatrist. His letter states that in his opinion, Ms D'Souza self-reported a plausible history of being victimised at work.
[108] Based on the reported history and his examination, he has formed the view that the alleged work-related difficulties have resulted in Ms D'Souza developing an adjustment disorder with mixed anxiety and depressed mood.
[109] The second letter is dated 10 September 2020 from Dr Evan Jenkins (Dr Jenkins). Dr Jenkins is a Medicolegal Consultant.
[110] Dr Jenkins records that Ms D'Souza has significant psychiatric symptoms. She reported disturbed sleep and insomnia, social withdrawal, and feelings of anxiety and variable moods.
[111] Dr Jenkins defers to the diagnosis of the reviewing psychiatrist Dr Ng, however, observes that her condition is not yet stabilised.
[112] Considering this evidence, I am satisfied that the repeated unreasonable behaviour I have found occurred played some part in the development of Ms D'Souza's medical condition and so, does create a risk to health and safety.
[113] Given my findings above, I am satisfied, on the evidence, that within the meaning of section 789FD of the Act, Ms D'Souza was bullied at work.
Is there a risk that the applicant will continue to be bullied at work?
[114] The fact that a worker has been bullied at work does not, of itself, trigger any intervention by the Commission. Rather, s.789FF of the Act prescribes that the Commission is only empowered to exercise the discretion to make an order if the Commission is also satisfied that there is a risk that the worker will continue to be bullied at work.
[115] Woolworths, in this matter, has some time ago disciplined both Mr Sandon and Mr Burrows. I accept they both now understand that their past unreasonable behaviour that I have found in this decision occurred should not be repeated. These facts suggest a conclusion that there is little risk of future bullying.
[116] In previous decisions of the Commission[12], when assessing whether there is a risk of continued bullying, account has not only been taken of the propensity of those who have acted unreasonably in the past to act unreasonably in the future, but account has also been taken of whether the Applicant's behaviour has been a contributing factor in the workplace.
[117] The reason for this is explained in Commissioner Wilson's observation regarding applications such as this as follows:
"[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."[13]
[118] In this case, it is appropriate for the Commission to also take into account the Applicant's behaviour in considering whether there is a risk of continued bullying in future.
[119] At times, Ms D'Souza has been discourteous, disrespectful, argumentative, and unreasonably critical of those to whom she reports. For example, Ms D'Souza's own account of what was said during the incident with Mr Burrows on 17 May 2019 is properly characterised as a full-blown argument during which she forcefully challenged and verbally attacked her manager on multiple occasions. Her behaviour does not excuse Mr Burrows unreasonable behaviour during that argument but is a likely explanation for it.
[120] Considering the past behaviour of Mr Sandon, Mr Burrows, and Ms D'Souza, my conclusion then is that whilst the workplace arrangements remain as they are, there indeed is some risk that the Applicant will continue to be bullied at work in the future.
[121] In the circumstances of this case, the Commission is empowered to make any order it considers appropriate to prevent the Applicant from being bullied at work in future.
[122] I am aware that the Applicant has made a number of complaints via the Woolworths internal grievance processes and that the Employer has made a number of decisions about some of the incidents that have occurred. I am aware of these matters and have had regard for them.
[123] I consider it appropriate and necessary to make an order in this matter.
[124] Woolworths has on a number of occasions, proposed to the Applicant that she relocate to a different supermarket and has offered for her to work the same shift arrangements there. However, the Applicant has been unwilling to do this.
[125] The Applicant, in her submissions, proposed a resolution which involved her remaining at the supermarket, however, moving to work in the online department reporting to a different manager. Prior to the hearing, the Commission convened a conference where this option was considered. Unfortunately, the parties could not agree on all the terms to resolve this matter on this basis.
[126] I have decided that I will issue an order but given the order will impact on the Employer's operations, I will provide an opportunity for Woolworths to raise any practical issues before issuing the final order.
[127] A draft order is set out below.
[128] Woolworths is directed to advise the Commission by email of any practical concerns with this draft order by no later than seven days from the date of this decision.
[1] Exhibit A1, Attachment ZU Statement of Mr Burrows dated 4 August 2020 at para 30 and Exhibit R2 at para 23.
[2] Exhibit R3, Attachment MS-1 at page 2.
[12] [2017] FWC 4988 at para 130, para 131, and para 139.
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