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[2020] FWC 2572
respondent. The Commission upheld the Respondent's jurisdictional objection under s 789FD(2), found the complained-of conduct was reasonable management action carried out in a reasonable manner, and dismissed...
1 cited instrument linked from this judgment.
The Fair Work Commission dismissed MJ's application for an order to stop bullying because it found the complained-of conduct was management action (performance feedback, directions, placement on a PIP) that was reasonable and carried out reasonably in context. The Commission applied the established test that management action is only bullying if it lacks evident and intelligible justification, and concluded the Respondent's actions met that standard.
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1,575 words · generated 17/06/2026
MJ, an APS 6 officer at the Australian Criminal Intelligence Commission (ACIC) and the agency's subject-matter expert for the Clarity project management platform, applied to the Fair Work Commission for an order to stop bullying under s 789FC of the Fair Work Act 2009. His application (lodged 10 April 2019) alleged repeated bullying by his Team Leader, AM, arising in the course of managing the Clarity upgrade and MJ's performance management. Key disputed events ran from late 2018 into mid-2019 and included: the mid-cycle performance review on 15 March 2019 that resulted in an indicative rating of "Requires Improvement"; the placement of MJ on an informal performance improvement plan (PIP); disputes about which Clarity version to test and release; specific incidents (a remark about a desk drawer, an alleged threat on 20 September 2018, an auto-generated email alert incident, and an email inadvertently copying another staff member regarding the PIP); and allegations of humiliation, ostracism and aggressive demeanour by AM (see [9]–[10], [21], [24], [32]).
The ACIC filed a jurisdictional objection under s 789FD(2) of the Act, contending that the complained-of conduct was reasonable management action carried out in a reasonable manner. After directions and multiple conference attempts, the matter proceeded to hearing across several days (Oct–Dec 2019 and Jan 2020). Deputy President Kovacic heard oral evidence from MJ and witnesses called by the Respondent (including AM, JK, AS, AC, RE, LP and Ms Thorne, Executive Director Technology). The Commission found the evidence of the Respondent's witnesses corroborated the management account in multiple respects and that MJ's allegations were largely uncorroborated or contradicted (see [3]–[7], [36]–[37]). The Commission concluded the conduct was reasonable management action and dismissed the application, upholding the jurisdictional objection (see [8], [45]).
The decision turns on the statutory qualification in s 789FD(2): the definition of bullying in s 789FD(1) does not apply to reasonable management action carried out in a reasonable manner. The Deputy President adopted the established framework from previous authorities (SB and Blagojevic) that frames the s 789FD(2) enquiry in three elements: (1) is the behaviour "management action"; (2) was it reasonable to take that management action in the circumstances; and (3) was it carried out in a reasonable manner (see [33]–[34]). For the specific question whether placing an employee on a PIP is unreasonable, the Full Bench has endorsed (and the Commission adopted) the standard that the decision to introduce a PIP is only unreasonable if it "lacked any evident and intelligible justification such that it would be considered by a reasonable person to be unreasonable in all the circumstances" (see [39], invoking Blagojevic and BOQ).
Applying that framework, the Commission treated virtually all of MJ's complaints as management actions: performance feedback, directions concerning the project and PMO priorities, supervision and the PIP. The Commission then conducted an objective assessment of those actions in light of the contemporaneous context and knowledge available to management: the operational pressures and PMO priorities around the Clarity upgrade, documented prior feedback to MJ, Mr J's pattern of interaction with supervisors, instances where MJ pushed back on directions or failed to follow them, and the agency's performance policy that anticipated informal action where performance is rated 'needs support' or equivalent (see [36], [40]–[42]). The evidence of several corroborating witnesses (AS, AC, JK, RE) supported the view that the management actions were taken for legitimate performance and operational reasons and were implemented reasonably. The Commission further noted that management action need not be perfect or ideal to be reasonable; procedural imperfections do not alone make action unreasonable (see [33], [42]–[44]).
Because the evidence demonstrated legitimate, documented performance concerns over a period and showed management responses consistent with policy and operational necessity, the Commission concluded that the PIP and related management conduct had an evident and intelligible justification and were carried out reasonably, so s 789FD(2) applied and the conduct was not bullying (see [39]–[45]).
Before this decision, the Commission's jurisprudence already established the analytical approach now re-affirmed in this decision:
This decision applies and re-affirms those authorities in the context of an APS public-sector IT project, confirming that management actions, especially performance management decisions such as PIPs, will be excluded from the statutory definition of bullying where there is an objective, evident and intelligible justification and actions are carried out reasonably. It does not expand the legal test but applies the settled tests to the specific facts and records the Commission's approach to credibility and weight in workplace interpersonal disputes (see [33]–[42]).
Quote: "Section 789FD(2) ... comprises three elements: the behaviour must be management action; it must be reasonable for the management action to have been taken; and the management action must have been carried out in a manner that is reasonable." ([33])
Quote: "What is necessary is for Ms Mac to demonstrate that the decision to introduce the PIP lacked any evident and intelligible justification..." ([39], quoting BOQ)
Quote: "In summary ... the feedback provided to MJ, the decisions not to offer him the opportunity to act ... and to place him on a PIP ... were all reasonable management action carried out in a reasonable manner." ([44])
Quote: "MJ's evidence is uncorroborated. Second, MJ's evidence is contradicted by the evidence of RE, AS and AC." ([37])
This decision is directly applicable where:
If these elements are present, the Commission is likely to characterise the conduct as reasonable management action and dismiss a bullying application under s 789FD(2).
This judgment does not contain material about later judicial treatment. It applies and cites prior Fair Work Commission decisions (SB, Blagojevic, BOQ) and represents the Commission's application of those authorities to the facts here (see [33]–[39]). Any analysis of how later courts or tribunals have treated this particular decision would require examination of subsequent authorities, which is outside the scope of the present judgment's text.
Grounded in the text of this decision, open issues that practitioners should note include:
Practitioners handling workplace bullying claims should therefore carefully evaluate whether the complained-of conduct is managerial in nature, assemble documentary evidence showing contemporaneous decision rationale, and be mindful that the Commission will apply an objective, contextual reasonableness standard rather than a perfection standard (see [33], [39], [42]).
The attached document replaces the document previously issued with the above code on 20 May 2020.
s.789FC - Application for an order to stop bullying
Application for an order to stop bullying - Respondent contends that alleged conduct was reasonable management action carried out in a reasonable manner - jurisdictional objection upheld - Application for an order to stop bullying dismissed.
[1] On 10 April 2019 MJ (the Applicant) filed an application under s.789FC of the Fair Work Act 2009 (the Act) seeking an order to stop bullying in accordance with Part 6-4B of the Act. In his application, MJ alleged that he had been bullied by his Team Leader, AM. MJ was employed by the Australian Criminal Intelligence Commission (ACIC - the Respondent) in its information technology area. The Respondent in its Form F73 - Response from an employer/principal to an application for an order to stop bullying contended that the alleged bullying behaviour was reasonable management action carried out in a reasonable manner.
[2] As a result of an application made by the Respondent the Fair Work Commission (the Commission) issued an Order on 20 December 2019[1] pursuant to ss.590(3)(c) and 594(1) of the Act. Among other things, the Order precludes the disclosure or publication of the names of employees of the Respondent other than Senior Executive Service (SES) employees.
[3] MJ's application was the subject of several conferences convened by the Commission which failed to resolve the matter, with Directions issued on 14 August 2019. MJ's application was heard on 31 October, 1 November and 3 December 2019 and 7 and 8 January 2020.
[4] At the hearing MJ appeared on his own behalf while Ms Irene Sekler, a Senior Executive Lawyer with the Australian Government Solicitor (AGS), and Mr Henry Chang, a Senior Lawyer with AGS, appeared for the Respondent.
[6] For the Respondent, evidence was given by:
[7] Ms Rochelle Thorne, the Respondent's Executive Director, Technology, gave evidence as a result an Order Requiring a Person to Attend the Fair Work Commission issued by the Commission on 25 October 2019. The Order was made as a result of an application by MJ.
[8] For the reasons set out below, I am satisfied that the various actions/conduct of which MJ complains were reasonable management action carried out in a reasonable manner. As such, I do not consider those actions/conduct to be bullying conduct. The Respondent's jurisdictional objection is therefore upheld and MJ's application will as a result be dismissed.
[9] A number of issues arose in late 2018/early 2019 in the context of the Respondent implementing an upgrade to a project management platform, Clarity, which it utilised. MJ was the officer with primary carriage for overseeing the upgrade to the platform. At his mid-cycle performance review MJ's performance was assessed as "Requires Improvement", with an informal performance improvement plan (PIP) subsequently put in place. On 27 March 2019 MJ lodged a complaint with the Respondent's People Service Team regarding AM's behaviour.
[10] As previously mentioned, on 10 Aril 2019 MJ lodged his application for an order to stop bullying with the Commission. In his application MJ described the behaviour which he considered to constitute bullying in the following terms:
I am a subject matter expert (SME) of a product that has great potential to provide far reaching benefits for the agency in achieving its vision, mission and goals.
In the last 8 months, I have been able to deliver substantial outcomes, meeting the organizational objectives.
I recorded these achievements in the performance management system. Yet, my manager's indicative rating of my performance does not truly reflect my achievements. The comments made by the team leader are undermining and belittling my efforts. Section 2 2 below, provides my response to the manager's comments.
The behaviour demonstrated by the team leader is repetitive as follows.
For FY16-17 - the performance rating provided by the team leader was "Requires Improvement". I updated the performance development system with my version No further actions were taken.
For FY17-18 - the performance rating provided by the team leader was "Requires Improvement".
The manager's rating was set-aside A new rating of "Performing Well" applied.
For FY18-19 - mid-cycle review conducted and the indicative rating provided by the team leader is "Requires Improvement" The comments made by the team leader in this review are untrue to many extents and they are unreasonable. I sought the 'review of decision' process internally. I was advised that the 'review of decision' process is not available for mid-cycle indicative rating decisions.
On 20/09/2018, after a successful completion of a product upgrade, my team leader raised an outcry saying I could have had lost my job due a trivial step that was missed in the documentation.
The team leader repeated the same threat over several occasions.
a. During mid-November 2018, my team leader accused me of stealing property of the agency (under-the desk drawer) that is untrue. It caused deep hurt and distress. I reported this to ... [AM] and the team manager ... [JK].
b. ... [AM] tried to humiliate me in presence of the PMO officer ... [AC], stating I should have read the Change Spec document prior to contacting the PMO. I had read it and I wanted some clarifications from the PMO on the given specifications, which she did not ask beforehand making such defaming remarks.
4. On the 26/11/2018, the team leader dissuaded me to explore the 'review of action' process against her decision that I considered unfair She called the time spent on pursuing that internal process as down tooling.
5. The team leader unreasonably applied the performance management as a tool I provided evidence that her assessment was erroneous.
I regularly requested ... [AM] for her feedback on my performance. On 14/02/2019 in a 1 1 meeting I requested her to provide me the specific details about the agreed deadlines, if any I missed ... [AM] stated "that would be addressed in the mid-cycle IPP review and that Information would be provided then at which point you will be given the opportunity to respond to any matters raised " I reported the instances when I could not get the required assistance from the team leader to achieve the organizational and individual objectives
a On 22/02/2019, the team manager instructed me in writing, not to contact a set of users (the PMO) for any work related activities and did not provide satisfactory reasons as to why
a The team leader later permitted me to talk to the QA team saying that she gave me her blessings to do so (reiterating 'blessings' few times)."[2]
[11] The relevant provisions of the Act are set out below:
**"**789FD When is a worker 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.
(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
[12] MJ in his submissions and two witness statements[3] focussed almost exclusively on over 30 allegations of bullying behaviour (MJ's contentions and evidence in that regard are set out later in this decision). Other than that MJ contended that he had observed a drift in AM's behaviour towards him since September 2018, that the behaviour he attributed to AM was a major impediment to him achieving the objectives set out in his Individual Performance Plan, that the behaviour was repetitive and unreasonable and was detrimental to his health and well-being. MJ also submitted that AM had apologised on multiple occasions for her actions, that there was a lack of sufficient and relevant evidence to place him on a PIP and the unreasonableness in this case arose from AM's management actions which were carried out in an unreasonable manner.
[13] In respect of the Respondent's jurisdictional objection, MJ submitted that:
[14] MJ was cross examined extensively regarding his various allegations of bullying behaviour (as noted above, his evidence in that regard is set out below). In his oral evidence MJ attested that he did not agree with RE's evidence that he spoke rudely to AM but agreed that he may have cut her off on occasions.
[15] The Respondent denied that MJ had been subjected to repeated unreasonable behaviour that created a risk to health and safety. In its submissions, the Respondent considered the legislative framework relevant to this matter, the evidence relating to MJ's allegations, additional matters relevant to the Commission's determination of the factual issues in this case and the issue of disposition.
[16] In considering the legislative framework, the Respondent referred to a number of decisions, including Amie Mac v Bank of Queensland Limited; Michelle Locke; Matthew Thompson; Stacey Hester; Christine Van Den Huevel; Jane Newman (BOQ)[4], Ms SB (SB)[5], Miroslav Blagojevic v AGL Macquarie Pty Ltd; Mitchell Seears (Blagojevic)[6], Sharon Bowker and Others v DP World Melbourne Limited T/A DP World and Others[7], John Krnjic v Bunnings Group Limited[8] and Mr Mohamed Aly v Commonwealth Securities Limited and others[9].
[17] The Respondent's submissions regarding the evidence relating to MJ's allegations are set out later in this decision.
[18] As to the additional matters relevant to the Commission's determination of the factual issues, the Respondent observed that much of the conduct which MJ complained of was management action such as performance matters, the allocation of work and the way work was carried out. Specifically, the Respondent submitted that in considering these issues the following were also relevant:
[19] Finally, as to disposition, the Respondent submitted that the issue was more appropriately addressed should it be found that there was bullying conduct directed towards MJ, adding that it maintained that there had been no such conduct.
[20] AM in her witness statement[10] denied that where she sought to manage MJ's performance, including his underperformance, it had been for the purpose of belittling or undermining him. AM also responded to MJ's various allegations and in doing so denied that she has sought to threaten or humiliate him or that she was aggressive towards him (AM's evidence regarding MJ's various allegations is set out later in this decision). AM also made some general observations based on her experience in supervising MJ and interacting with him through the performance improvement process. Those general observations included that:
[21] AM was cross-examined extensively by MJ in respect of his various allegations. As noted above, her evidence in that regard is set out later in this decision. Beyond that, key aspects of AM's evidence included that:
[22] RE's evidence[11] was that he had known AM for approximately 15 years and had never observed her engaging in behaviour that he perceived to be bullying or trying to humiliate, threaten or offend anyone. RE described AM as exceedingly patient with other staff. RE, who sat opposite MJ and AM, also observed that in his interactions with AM MJ was very careful with his words and in circumstances where AM gave him very clear directions he would deflect them cleverly in what he [i.e. RE] perceived to be an attempt by MJ to try and frustrate AM. RE also stated that he observed MJ appearing to be more difficult when interacting with AM than when he interacted with others, including him.
[23] Key aspects of AC's witness statement[12] included that:
[24] In his oral evidence, AC attested inter alia that:
- MJ submitting an application for annual leave without first discussing the matter with him as was the usual practice in the workplace, adding that he approved the application because he misread the application thinking it was for one day as opposed to three weeks and that as a consequence he had to negotiate a new deliverable date for implementation of the Clarity upgrade which MJ was working on,
- despite advising MJ of the work which he needed to complete prior to going on leave, the major deliverable which MJ submitted before commencing leave, i.e. the implementation plan, was not up to the required standard because it was incomplete, and
- an incident in which MJ aggressively confronted another staff member about a task he [i.e. AS] had asked the staff member to undertake regarding Clarity;
[26] In his oral evidence, AS attested inter alia that:
[27] JK in her witness statement[17] dealt with her instruction in February 2019 to MJ not to contact the PMO and MJ's mid-cycle performance feedback. On the first issue, JK deposed that contrary to MJ's submissions she and AM met with him on 21 February 2019 and that at that meeting she gave him directions which she judged were necessary to ensure that the agreed version of Clarity was installed in a timely way as required by the PMO. JK added that she inter alia directed MJ to have no further conversations with the PMO (other than through AM) to ensure that he did not persist in trying to convince the PMO to upgrade to a version of Clarity which they had already stated they did not want. As to MJ's mid-cycle performance feedback, JK disputed MJ's version of their discussion as set out in his submissions in reply, adding that MJ provided her with no information that led her to consider that the proposed performance rating of "Requires Improvement" was not correct. Further, and again contrary to MJ's submissions, she did not consider the release plan provided by MJ[18] to be sufficient as the implementation steps set out in the plan were described at too high a level.
[28] JK's oral evidence focussed heavily on the mid-cycle performance feedback meeting with MJ on 15 March 2019. JK's evidence in that regard is perhaps best captured by the following excerpt of the transcript which concerns feedback provided to MJ in respect of Objective 2 - Adopt the corporate tools to enhance ICT Capability - Staff in his Individual Performance Plan (the feedback was that MJ "[a]ttempted to undertake this task to the detriment of his primary customer, i.e. the PMO, even though the work for the PMO had already been delayed" and "[h]as difficulty setting appropriate priorities"[19]:
"THE DEPUTY PRESIDENT: ... I think the questions that ... [MJ] is asking go to the rationale for the feedback that's reflected at page 43 in respect of objective 2.
Is there anything that you can sort of share from your recollection of the meeting of 15 March around that particular issue?---Not specifically, no. I suppose the only thing that goes to that is that the primary objective for the PMO and the priority around the time I was in the job was to deliver the upgrade, not to be doing other things.
Okay. So your interpretation of the words at page 43 is along the lines of what you've just put?---Yes.
Okay?---So in my conversations with ... [AM], one of the performance issues was that a lack of judgment around what as the most important thing to do at the particular time which doesn't mean they weren't all important things to do or weren't on the task list for the year, but - and a number of times ... [MJ] pursued what he was most interested in or felt was most important, rather than what was clearly the priority at the time that had been communicated to him and that was the nature of that feedback.
MJ: So is it right that your endorsement of the failure that ... [AM] has reported purely based on the information that was fed into you by ... [AM] and you did not very with ... [MJ], is that correct?---No. It's not correct in the sense that particularly in the formal mid-cycle review conversation there was ample opportunity for you to put your point of view around whether or not the feedback you were being provided with was accurate or not.
And the feedback, I have provided on self-assessment. Can I please switch to page 44 please? And there is my comments to your assessment and it clearly states ... [AM] and ... [JK] came up with (indistinct) predetermined assessments that were conveyed to me. Is that true? There was no room for the discussions or input from ... [MJ] during the meeting?---That's not true.
So when I asked - when ... [MJ] asked for the evidences, there was nothing produced except the clear instructions. Is that correct?---Are you talking about at the meeting on the 15th?
That was not (indistinct) is that correct? That you knew there was no justification?---The feedback that was provided to you by me because I facilitated and passed on the feedback to ... [MJ], had been collected from ... [AS] and from ... [AM] and partly from my own observations. There was also some previous feedback provided by ... [MG], although I did not include that at the time. There were consistent patterns of conduct in the workplace that was not constructive or not helpful or not conducive to delivering work outcomes in a constructive way. I did not bring a book of evidence to that mid-cycle review conversation because in my mind that would have defeated the purpose. The purpose was to have a conversation about the feedback. Feedback he'd been provided by his supervisors and it wasn't about an exercise of proving one thing or another. It was about listening to what other people were saying for ... [MJ] to listen to what other people were saying about his performance and for him also to have an opportunity to comment, which he did on a number of occasions on things that had impacted on his ability to live [sic deliver]. Also part of that conversation was recognition that he had delivered a number of things during the year quite well. So this wasn't about saying that everything he'd done was deficient in any way. He'd done some very good work, particularly early on providing advice to the PMO about options and about the new functionality that was available. He is clearly very expert in Clarity and how it operates and that was recognised. The second part of that conversation in terms of the critical feedback was about particular behaviours and ways of doing things in the workplace that were not satisfactory and in particular, and I mentioned this before, repeated failures to follow directions from his supervisors. Directions - - -
THE DEPUTY PRESIDENT: You might let ... [JK] complete her answer?---Yes. And these directions were in fact to help and assist ... [MJ] to deliver the work on his work program. But on a number of occasions, because he had a personal view that was different, or because he disagreed, he didn't follow those directions and one of the classic examples was his persistence in trying to implement a version of clarity that the PMO had said they did not want. And ultimately I was forced to provide a direction in writing to make sure that that in fact occurred, which in my experience is highly unusual."[20]
[29] Other key aspects of JK's oral evidence included that:
[30] LP deposed in his witness statement[22] that on 17 January 2019 he attended a meeting involving MJ, his support person and AS, who at that time was MJ's acting Team Leader, at which the issue of MJ's attendance at weekly team meetings was discussed. Among other things LP deposed that he recalled that during the meeting AS disagreed with MJ's statement that he had not been personally invited to the meetings by AS, with AS stating that on two occasions he had gone to MJ's desk to ask him to attend the meetings.
[31] Ms Thorne attested that her instruction to her directors was that unless the information technology group lifted its game "all our jobs are at risk", adding that whether an individual's job was at risk would be determined on a case by case basis. Ms Thorne acknowledged she was not aware in what exact form her instruction/message was being passed on "down the line" and agreed that the gist of her instruction was that poor performance would not be tolerated. Ms Thorne also attested that over the period June 2018 to July 2019 no one had lost their job as a result of a failed system change and that she considered it appropriate to move into a performance improvement process in circumstances where an employee's performance was assessed as "Requires Improvement" at their mid-cycle performance review.
[32] MJ in his submissions and evidentiary material identified 34 instances of alleged bullying behaviour. I summarise in the table below the key elements of the material before the Commission in respect of each of those instances.
MJ in his application highlighted that the performance ratings he received for 2016-2017 and 2017-2018 were "Requires Improvement", though he sought a review of the latter rating which saw the rating set aside and a new rating of "Performing Well" applied, and that his indicative performance rating for 2018-2019 was "Requires Improvement". MJ stated in his application that the "behaviour demonstrated by the team leader is repetitive" (see paragraph [10] above).
The Respondent submitted that there was not a repetitive element involved as AM was only MJ's supervisor for the 2018-2019 performance management cycle.
MJ attested that AM had not given him any performance feedback over the period July 2018 until 15 March 2019.[23] MJ further attested that his perception was that AM's feedback was more a demonstration of her power and authority and her harassment, adding that he did not accept it because she was not on the page about the entire roll out of Clarity upgrades.[24] MJ stated that he "partially agreed" with the feedback he was given in his mid-cycle performance review that he consistently did not act on feedback provided by his Team Leader or users.[25]
AM denied that the mid-cycle performance discussion at which MJ was provided an indicative performance rating of "Requires Improvement" was held for the purpose of humiliating, belittling, undermining or threatening MJ. AM also stated:
JK's oral evidence was that the focus of the focus of the mid-cycle performance review meeting with MJ was not about any particular individual issue but rather "about a whole pattern of operating in the workplace which ... needed improvement".
MJ agreed that in his meeting with JK and AM on 21 February 2019 he was given feedback about his refusal to follow directions in relation to the Implementation Plan.[26]
AM stated that while MJ asserted that an Implementation Plan was prepared on 20 February 2019 the issue was that prior to that date he refused and failed to complete the draft Implementation Plan in the correct format. AM further stated that AS advised her that he raised the issue with MJ before he went on leave in late January 2019 and that she raised it again with MJ after he returned from leave, adding that he refused to follow her verbal and written directions until 20 February 2019.
AS' evidence was that the major deliverable which MJ submitted before commencing leave, i.e. the implementation plan, was not up to the required standard because it was incomplete.
JK's evidence was that while ultimately MJ did provide an implementation plan it was a lengthy process which involved a lot of time and support from both AM and her, adding that this issue went back to the expectations of what an APS 6 officer should be able to do.
MJ attested that he attended all team meetings to which he had been invited and that while he did not have any advice that the team meetings organised by AM had been cancelled he did not have an invite to the team meetings convened by AS. MJ agreed that he received feedback from AS on 17 January 2019 concerning his failure to attend weekly team meetings.
MJ denied that AM gave him a direction to cease Clarity related activities that did not relate to the priorities of the PMO and had not been pre-approved by the PMO, despite her email of 14 February stating "[y]ou are not to make or explore enhancements to Clarity without the express direction of the PMO, i.e. SC via AC."[27] MJ attested that he adhered to the direction because he did not make any change in the production environment and FT was part of the PMO.
AM stated that she had to remind MJ around mid-March 2019 that at the request of the PMO, which she supported by way of a verbal direction some four weeks prior, he was supposed to refer requests to the PMO to modify Clarity before investigating the requests as opposed to after he had already spent time considering the issues.
In his oral evidence AC attested that he did not want MJ exploring enhancements to Clarity without the PMO's permission, adding that the email exchange between MJ and FT (a Project Delivery Manager with the Respondent) on 12 March 2019 involved MJ exploring an enhancement to Clarity with FT.
MJ attested that the PMO had agreed that the version prior to the latest version of Clarity should go into production and that his judgment about what was best for the Respondent was better than the decision made by the PMO or his team leader.[28]
AM deposed that MJ installed the latest version of Clarity in the test environment on 20 February 2019 as opposed to the version approved by the PMO, despite the PMO's concerns about the latest version of Clarity.
In his witness statement, AC stated that the PMO never approved the latest version of Clarity being installed or requested that it be tested or delivered.
MJ submitted that Clarity support technicians had never had to seek authorisation for the change since it was in a "sandpit" environment.
In his oral evidence MJ attested that he did not discuss with either the PMO or AM his view that the latest version should be installed in the test environment despite being aware of the PMO's decision that it wanted the version prior to the latest version of Clarity to go into production.[29]
JK's evidence was that she did not agree with MJ's proposition that he did not ignore the direction of the PMO to install the required version of Clarity because, despite the PMO's decision of 16 January 2019, in the week beginning 18 February 2019 he installed a later version of Clarity in the test environment and because ultimately she had to issue MJ a written direction to get him to install the version required by the PMO.
AM's evidence was that she did not consider it to the point that MJ and others may not have previously had to seek authorisation for changes in the "sandpit", adding she raised with MJ that installing the wrong version of Clarity environment was contrary to the PMO's instructions.
The Respondent submitted that the feedback provided to MJ regarding this issue was reasonable, given in a reasonable manner and did not lack any evident and intelligible justification.
MJ attested that he received feedback on this issue but that he disagreed with the feedback, adding that implementation of the upgrade was not delayed because of his efforts.[30]
AM deposed that MJ installing the latest version of Clarity in the test environment on 20 February 2019 when he should have been working on the version approved by the PMO was to the detriment of the PMO when the release had already been delayed. AM further deposed that she considered that this showed that MJ had difficulty setting appropriate priorities.
In his witness statement, AC stated that the PMO never approved the latest version of Clarity being installed or requested that it be tested or delivered.
The Respondent submitted that given the above evidence the feedback provided to MJ regarding this issue was reasonable, given in a reasonable manner and did not lack any evident and intelligible justification.
MJ indicated that he did not have the ability to grant Ms H access in response to a question positing that he did not assist her resolve her access problems. MJ also stated that while he left at 4:15pm that afternoon he remained in contact with Ms H and continued to provide her with assistance until the testing was completed.
In her oral evidence AM attested she did not agree that it was unreasonable for her to expect MJ to raise a ticket for Ms H to arrange access to the system, adding that as Ms H had taken time out to assist and, as Ms H was about to go on leave, she [i.e. AM] wanted to make sure that Ms H could leave as early as possible and that every effort would be made to sort these things out for her so that she did not have to chase things up.[31] AM also attested that the purpose of the feedback MJ received concerning this issue was that the delays encountered with the test would not have been as significant if he had started preparing the test environment earlier.[32] AM also acknowledged that after she spoke to MJ and insisted that he provide Ms H more assistance that he did do that and that he helped her complete the task.[33]
MJ attested that he did not discuss his proposed leave with AS before submitting his leave application, though he did have a discussion with MG who he [i.e. MJ] acknowledged could not approve his leave application as it did not go to him. MJ also attested that AS had said to him that he would try and find a resource to progress the tasks identified by MJ as needing to be done while he was absent on leave. MJ disputed that he did not consider the impact on other people of him going on leave.
The Respondent in its submissions acknowledged that the feedback provided to MJ was erroneous to the extent that proceeded on the basis that he had inserted 30 January 2019 in the Clarity Environments Brief he provided to the PMO in January 2019. The Respondent further submitted that it was based on the information known to AM at the time, was given in a reasonable manner and did not lack any evident and intelligible basis, adding that adverse feedback, termed slightly differently, would still have been justified. The Respondent also posited that MJ could have ameliorated the scope of the adverse feedback by entering supporting evidence into the performance management system, something which he did not do.
I note that the Respondent's Employment Policy regarding Annual Leave[34] states at paragraph 29 "[a]fter discussing the need for Annual Leave with their Immediate supervisor, an in principle agreement has been provided, the employee must enter the leave in SAP were it will be approved by the relevant Delegate (refer HR Delegations)."
AS' evidence was that MJ submitted an application for annual leave without first discussing the matter with him as was the usual practice in the workplace.
MJ agreed that the Clarity upgrade had not been delivered on 30 January 2019, noting that he was on leave at that time, nor on 28 February 2019, noting that that date was not one which he had proposed. MJ also attested among other things regarding this issue that:
AM accepted in her witness statement that some of the delays referred to by MJ were outside of his control. However, AM stated that this could not be said of the delays related to the period 30 January to 6 March 2019. AM further stated that the Clarity release did not occur without intensive supervision on her part and JK, adding that based on her experience she did not expect that this level of supervision would be required of an APS 6 employee in circumstances where the release should have been routine given that she had supervised MJ undertaking similar releases in the previous nine months.
JK's evidence regarding the provision of an implementation plan by MJ was that it was a lengthy process which involved a lot of time and support from both AM and her.
MJ acknowledged in his oral evidence that he understood that the work plans he provided to AM were not sufficient for her purposes in circumstances where she sought further information.[35] MJ contended that he had responded to AM's email request of 22 February 2019 that further information be included in the plan for the roll out of Clarity which he had prepared, agreeing that his response was more in the way of notes as opposed to providing a more detailed plan.[36]
AM stated that from mid-February 2019 she required MJ to produce weekly work plans, adding that these were frequently deficient as they did not provide her with sufficient information to allow her to understand his plans. AM further stated that it took eight months of intensive coaching for MJ to produce a work plan that met her requirements, despite those requirements being set out in writing in both his informal and formal PIPs. AM also deposed that the feedback regarding frequently fails to meet deadlines referred to MJ's work in respect of software releases in particular. In her oral evidence AM attested that MJ did not regularly provide her with work plans in Clarity so there was not a lot of feedback on them.[37]
MJ maintained that the Jaspersoft component was released with the Clarity upgrade on 6 March 2019.
AM stated in her witness statement that she asked MJ if the Highlight report was included in the new release and referred to an email she sent to AC on 26 February 2019 which stated inter alia that "[t]he ... release will not include the new version of the Highlight Report. MJ tells me that this is because the Highlight Report that he built was implemented against ... Vanilla, not the ... Customized that we are releasing, and thus needs to be revisited by him before he can release it for testing. This cannot occur before the deadline for this release."[38] (Underlining as per original.)
Attached to the Respondent's "Outline of Submissions on Jurisdiction of the Respondent's" was an email from AM to MJ and AC dated 15 March 2019 which included the following: "[t]he following formerly discussed priorities are to be parked pending the delivery of the above TABS and launch:
The Respondent submitted that in the circumstances the feedback provided to MJ regarding this issue was reasonable, given in a reasonable manner and did not lack any evident and intelligible justification.
MJ maintained that he provided the work schedules and plan as required, adding that he did not commit to a date of release to production because of the prevailing uncertainties stemming from the dependence on other things.[40]
AM stated that MJ did not provide the schedule when requested by JK, adding that he provided a plan but that it was only verbal and at a very high level of generality.
In her oral evidence AM attested that she did not consider being sent a schedule once over an eight month period as sufficient to communicate ongoing plans of work, adding that the issue was MJ's lack of transparency and lack of proactive management of both her and the PMO's expectations.[41]
MJ attested he always met the expectations of the PMO, adding that every six months he had to deal with a new PMO manager. MJ disagreed that he did not achieve the Clarity upgrade in the timeframe requested by the PMO.[42]
AM stated that the reason for the feedback given to MJ regarding this objective was that the PMO's expectations were not managed by MJ in that the PMO had no clear idea of when they could expect the upgrade to be delivered, adding that she believed this to be the case because the PMO repeatedly contacted her and asked when they would get the upgrade and why they had to wait. AM further stated that she had been informed by MG and JK that the PMO contacted them as well requesting the same information from them.
AM further stated that the feedback that MJ was focussed on long-term improvements instead of the immediate goal arose from MJ lobbying her, JK and the PMO to install the latest version of Clarity rather than progressing the approved release.
MJ agreed that this appeared to be a subset of the feedback that he undertook a task to the detriment of the PMO.[43]
AM attested that around 18 months ago MJ spoke to her about trialling the resource module in Clarity, adding that she while she agreed to do it at the time some additional responsibilities which she had taken on meant that she did not really have time to do the trial any more. AM also attested that the issue was mentioned in MJ's mid-cycle performance review.
MJ submitted that AM's decision to give him an indicative rating of "Requires Improvement" at the mid-cycle performance review and her decision to place him on a PIP lacked evident and intelligible justification such that it would be considered by a reasonable person to be unreasonable in all the circumstances.
AM deposed that she did not proceed with MJ's PIP as a reprisal for anything.
MJ agreed that he missed a step in the implementation plan regarding the 2018 Clarity upgrade.[44] MJ attested that AM's comment that he could have lost his job as a result of failed release was more of a threat as opposed to advice that he needed to be more careful in his work, adding inter alia that AM was angry and yelled at him. MJ also stated that the word 'Outcry" in his email to JK of 18 February 2019[45] in which he mentioned this incident encapsulated the behaviour he attributed to AM.
AM's evidence was that she merely reminded MJ of the operating environment that they were in and that the tolerance for errors was very low. AM stated that she spoke to MJ in a firm and direct way as a result of his unwillingness to accept the feedback she was providing, adding that she did not consider she acted inappropriately in doing so. AM denied that she had threatened MJ with losing his job, raised her voice or engaged in aggressive or intimidating conduct. In her oral evidence AM attested that it was her job to tell MJ these things, adding that she would not have done her job if she had not forewarned him that in future he needed to be much more careful.[46]
MJ contended that AM dissuaded him from pursuing a review of action in respect of the decision to offer higher duties to AS rather than him and that her actions in doing so were unreasonable. As to how AM did this, MJ attested that AM had said to him that he would need to continue to perform his duties while seeking a review of action or he could be subject to performance management action, agreeing that this was what he meant by AM trying to persuade him not to follow a review of action.[47] MJ also attested that he wanted to undertake the work required to pursue a review of action whilst he was at work.[48]
AM denied seeking to dissuade MJ from seeking a review of the decision to select AS for period of higher duties in her role. AM also denied that she threatened MJ or that she did not provide reasons or feedback as to why MJ did not get the acting role. AM also stated that her perception was that MJ took the decision not to offer him the acting role quite personally, that MJ believed he was entitled to the role because he had identified leading a team as one of his professional goals and that after this MJ started to interact with her in a more confrontational and less cooperative manner.
In her oral evidence AM attested that while MJ did not say that he would cease delivering the Clarity upgrade he made it very clear to her that he intended stopping work on his tasks so that he could spend time between late November and Christmas 2018 completing his review of action.[49] AM also attested that she had no part in the decision to withdraw the proposal to undertake an expression of interest process in the light of MJ's disappointment about not being offered the period of higher duties.[50]
MJ disputed AM's version of their discussion regarding the drawer unit. Among other things MJ disputed that AM has said to him that the drawer was allocated to someone else and contended that she said it was not appropriate to steal someone else's stuff at the beginning of their discussion. MJ also contended that AM was rude, aggressive and derogatory to him in the incident, agreeing that he did not mention this behaviour in his abovementioned email to JK of 18 February 2019 in which he mentioned the incident. MJ also agreed that AM apologised to him when he approached her several weeks later and told her that he was offended by her use of the word "steal".[51]
AM acknowledged that in her exchange with MJ regarding the desk drawer she said words to the effect "[i]t is not appropriate to 'just steal someone else's stuff'", adding that she used the expression colloquially to express her view that it was not appropriate to take something which had been assigned to another person. AM also stated that it was only several weeks later that MJ told her that he had been offended by her use of the term 'steal', which prompted her to apologise immediately as it was not her intention to offend MJ.
MJ agreed that he had not read but rather glanced at the systems change specification document prior to the meeting.[52] MJ attested that at the meeting AM was very aggressive, that her tone was firm and that she was frustrated.
AM stated that she recalled one of the main topics for discussion at the meeting was MJ wanting to seek clarification of the requested changes documented in the systems change specification document prepared by the PMO. AM further stated that in the meeting she was having some difficulty understanding what information MJ was seeking and perceived that AC was having the same difficulty. While AM acknowledged that in hindsight it may have been better had she raised the matter outside the meeting, she also stated that at the time she was trying to ascertain why MJ was asking questions when the answers, based on AC's answers to his questions, appeared to be contained in the specification document. AM maintained that it was a reasonable expectation of an APS 6 employee to have prepared for a meeting with a stakeholder by reading a document fully. AM denied that she was aggressive or that she intended to belittle or humiliate MJ in the presence of AC.
In her oral evidence AM attested that she had not perceived that MJ would be embarrassed by their conversation at the meeting and that had she realised the conversation would go the way it went that she would have asked the question in a different manner, adding that she would have raised the issue nonetheless.[53]
MJ submitted that the feedback he received in this regard was incorrect because his annual leave was approved before the PMO signed off on the Clarity Environments Brief. MJ further submitted that AM implemented the informal PIP despite the fact that her assessment during the mid-cycle assessment was erroneous and that he was humiliated solely because of the unusual demand that he enter risk data in Clarity which was imposed on him as part of the PIP.
AM in her witness statement denied that she had engaged in humiliating conduct.
MJ acknowledged that he did not want to undertake the task of entering risk data into Clarity as part of his PIP. While MJ was performing this task an auto-generated email alert was sent to one of the Respondent's SES officer who raised concerns about the matter.
AM attested as part of MJ's PIP she directed him to enter risk data into the production system. AM further attested that while this task was not part of MJ's normal duties it was a task that he would have been familiar with because he supported the product, adding that the task was identified as one that MJ could perform that was set at the appropriate level for an APS 6 and was added to his PIP to enable MJ to demonstrate he was performing at that level.[54]
MJ attested that he blamed management for the abovementioned incident regarding the auto-generated email alert and that he had not verified that the auto-generated email alert had been switched off after asking the relevant vendor to do so. MJ also attested that he definitely did not accept any responsibility for the incident.
AM's evidence was that she would have expected MJ had verified that the auto-generated email alerts had been turned off, adding that she considered it incumbent on anybody who supports a system and is making changes in any environment to verify that the changes they have made worked.[55] AM also attested that she did not ask MJ to apologise to the SES officer who raised concerns about the matter but rather suggested that the appropriate response would have been to apologise.[56]
AM further attested that she did become frustrated later in the meeting when the conversation shifted to MJ completing service tickets when he got requests from customers. In response to a question from the Commission, AM confirmed that she gave MJ a direction regarding this issue and that he refused to comply with that direction.[57] AM also attested that at the end of the meeting she apologised to MJ for becoming frustrated with him.[58] When asked by the Commission on how many occasions she may have directed MJ to do this work, AM stated that she and MJ certainly had three intensive discussions about him doing this activity and a couple of occasions where she asked him to raise a ticket.[59]
MJ attested that he did not know whether AM intentionally copied in another staff member on an email which disclosed that he was on a PIP, adding that when he reported this that AM apologised.[60]
AM deposed that in responding to an email which MJ had sent to her and another staff member regarding a task he had been asked to perform that she accidentally copied in the other staff member to her response which referred MJ to his PIP. AM stated that her mistake was unintended and that she apologised once she realised what had occurred. In her oral evidence AM reiterated that she apologised as soon as she found out because she felt "terrible", adding that it "was an absolute mistake" on her part.[61]
MJ submitted that his work colleagues found these records due to the action of AM.
AM in her witness statement denied that she had encouraged any of MJ's work colleagues to access such records, adding that as far as she was aware the only people with access to these records were MJ, herself and the Respondent's human resources area.
MJ agreed that he did not contend that AM "hacked" his computer.[62]
AM deposed that she was not in the workplace when the incident occurred and that when the issue was brought to her attention she discussed it with the relevant employee, advising him inter alia that it was not appropriate behaviour and that he was not to do it again.
MJ agreed that AM wanted him to raise help desk tickets on behalf of the PMO and that he repeatedly refused her requests.[63] MJ disputed that he questioned AM's authority, that he became increasingly loud in the meeting, that his tone was dismissive, that he spoke over AM or that he was aggressive but agreed that AM was frustrated.
In short, AM deposed that despite her repeated directions to MJ to undertake the task of entering 'tickets' on behalf of AC that he repeatedly attempted to tell AC to do it instead, prompting her to tell MJ to move on from the issue.
In his oral evidence AC attested that AM's frustration with MJ in their meeting with him was possibly understandable, adding in response to a question from the Commission that his sense was that MJ was trying to "push AM's buttons".
MJ agreed that he refused to prepare an Implementation Plan as requested by AM on 14 February 2019 because he considered it unreasonable because it related to the test environment, adding that he ultimately completed the task within three days. MJ further attested that he refused to undertake the task in the first instance and that he did not agree with the request because what AM was asking for was uncommon.[64] MJ also agreed that he told AM in their meeting of 15 February 2019 that she was being stubborn and rigid, adding that he did so because she did not accept his views on the matter of the Implementation Plan. MJ also contended that AM was aggressive and intimidating in their meetings on 14 and 15 February 2019 and that she was trying to undermine him, agreeing that he did not mention this behaviour in his email to JK of 18 February 2019 in which he mentioned this incident.
AM denied behaving in an aggressive, intimidating or bullying manner towards MJ in any of their one on one meetings, adding that she introduced such meetings for the entire team in February 2019 in response to concerns about the team missing deadlines.
MJ attested that his concern related to the follow-up emails sent to him by AM which he considered to be an inaccurate reflection of their discussions but which he did not always respond to. In response to questions from the Commission, MJ stated that the reason for the emails was "[b]ecause we are not getting on the same page" and acknowledged that the emails may be a means of ensuring clarity as to what might be required or what had been said.[65]
AM stated that she kept a work diary in which she took notes which comprised her recollections of what she considered significant information from meetings or discussions. AM denied that the purpose of her recording notes was to be aggressive or intimidate MJ.
MJ acknowledged that the discussion occurred on 22 February 2019 and that during the discussion he was trying to convince AM to move to the latest version of Clarity in the best interests of the PMO and the Respondent. MJ described AM as aggressive in that discussion as opposed to her voice being firm in the face of his refusal to accept that she would not speak to the PMO about the issue.[66]
AM deposed that during the conversation MJ persisted in trying to convince her to speak to the PMO to ask it to change its mind about the version of Clarity which was to be installed. AM denied that she raised her voice or acted in an aggressive way in the meeting but did state that her voice was firm in the face of MJ's refusal to accept that she would not be speaking to the PMO as it had made its position very clear as to the version of Clarity which it required.
MJ agreed that JK directed him on 21 February 2019 not to have further conversations with the PMO other than through AM but posited that the direction must have been based on a recommendation from AM.
AM stated that the instruction came from JK in circumstances where MJ was not delivering the product specifically requested by the PMO but rather was spending time contacting the PMO trying to convince them that they required the latest version of Clarity.
JK's evidence was that at her meeting with MJ and AM on 21 February 2019 she inter alia directed MJ to have no further conversations with the PMO (other than through AM) to ensure that he did not persist in trying to convince the PMO to upgrade to a version of Clarity which they had already stated they did not want.
MJ submitted that it was only on 21 March 2019 that AM permitted him to contact the QA Team. However, in his oral evidence MJ agreed that he was not under a direction not to contact the QA Team.[67]
AM deposed in her witness statement that she requested that MJ talk to the QA Team for the purposes of seeking their assistance with the testing resource that would help him deliver the Clarity upgrade. AM denied that she did so for the purpose of ostracising MJ.
The Respondent submitted that AM asking MJ to contact the QA Team was not ostracism and that AM's behaviour was not unreasonable.
MJ acknowledged that AC had said that he would follow up with the IT Security Advisor if required, adding that he considered AM's reiteration of AC's request as "totally uncalled for."[68]
AC's evidence was that he told MJ not to contact the Respondent's IT Security Advisor regarding Clarity.
AM's evidence was that she repeated AC's request in order to ensure that MJ followed it.
[33] Commissioner Hampton made the following observations regarding the issue of reasonable management action in SB:
"[46] Behaviour will not be considered to be bullying conduct if it is reasonable management action carried out in a reasonable manner.
[47] Section 789FD(2) of the FW Act is not so much an "exclusion" but a qualification which reinforces that bullying conduct must of itself be unreasonable. It also emphasises the right of management to take reasonable management action in the workplace. In its application, the provision comprises three elements:
[48] The Explanatory Memorandum refers to management decision and decisions about how work is to be carried out. This suggests that the term may be required to be given a wide meaning under s.789FD(2) and that the Legislature intended everyday actions to effectively direct and control the way work is carried out to be covered by the exclusion.
[49] Determining whether management action is reasonable requires an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time. Without limiting that assessment, the considerations might include:
[50] The specific 'attributes and circumstances' of the situation including the emotional state and psychological health of the worker involved may also be relevant.
[51] The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was 'more reasonable' or 'more acceptable'. In general terms this is likely to mean that:
[34] The Full Bench in Blagojevic also considered the issue reasonable management action, including question of whether placing a worker on a PIP constituted "reasonable management action", observing as follows:
"[18] Section 789FD(2) qualifies the definition of when a worker is bullied at work such that it does not apply to 'reasonable management action carried out in a reasonable manner'. There are three elements to this qualification:
[19] The expression 'management action' in s.789FD(2) is not confined only to managerial decisions but encompasses a wider range of conduct or behaviour which affects an employee, including such things as performance and disciplinary matters, the allocation of work and the way in which work is to be carried out. Placing an employee on a PIP clearly falls within the scope of the expression 'management action'.
[20] To determine whether the action constitutes "reasonable management action" it is necessary to undertake "an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time". The test for reasonable management action is whether the "management action was reasonable, not whether it could have been undertaken in a manner that was 'more reasonable' or 'more acceptable'."
[21] The specific question of whether placing a worker on a PIP constituted "reasonable management action" for the purposes of s.789FD(2) of the Act, was considered by Vice President Hatcher in Mac v Bank of Queensland Limited. In that case, the applicant, Ms Mac, argued that the managerial decision to impose, and continue to impose, a PIP on her, was not reasonable management action because the shortcomings in her performance had not been sufficiently serious to justify that decision being made. In assessing the reasonableness of this managerial decision, the Vice President did not attempt to form his own judgment as to whether Ms Mac's overall performance was satisfactory, explaining:
'... I do not consider that an assessment of whether the imposition of the PIP on Ms Mac was unreasonable requires the Commission to engage in the process of attempting to form its own judgment as to whether her overall performance was satisfactory or not and to substitute its judgment for that of the relevant BOQ managers and supervisors. Even if a different and better opinion of Ms Mac's work performance could legitimately be formed on the evidence before me, that would not be sufficient to show that the decision to introduce the PIP was unreasonable. What is necessary is for Ms Mac to demonstrate that the decision to introduce the PIP lacked any evident and intelligible justification such that it would be considered by a reasonable person to be unreasonable in all the circumstances.' (emphasis added)
[23] ... For our part, we agree with the observations of Vice President Hatcher set out at [21] above."[70] (Endnotes not included)
[35] I respectfully agree with the observations made in SB and Blagojevic and adopt them in this matter.
[36] In this matter MJ among other things disagrees with the feedback provided to him in his mid-cycle performance review and is disaffected by the decision to place him on a PIP. MJ is also aggrieved by the decision not to offer him the opportunity to act in AM's position over the period late November 2018 to mid-February 2019. In addition, MJ also contends that AM's conduct towards him constituted bullying behaviour. In particular, MJ in his submissions, evidence and cross-examination of AM accused her of inter alia raising her voice to him, engaging in aggressive, humiliating or intimidating conduct, being rude and derogatory towards him and being angry with him. AM denied the behaviours attributed to her by MJ, though she did acknowledge becoming frustrated with MJ on occasions. I consider the various allegations of bullying conduct made by MJ involve management actions.
[37] In respect of MJ's contentions regarding AM's behaviour towards him, I note firstly that MJ's evidence is uncorroborated. Second, MJ's evidence is contradicted by the evidence of RE, AS and AC. In fact, their evidence points to MJ's behaviour being unreasonable on multiple occasions. In particular, I note AC's evidence in respect of a meeting he had with AM and MJ where AM ultimately directed MJ to perform a task which MJ disputed that he should have to perform. AC's evidence was that he perceived MJ's behaviour on that occasion as being intentionally difficult and directed at provoking a reaction from AM, adding that he perceived MJ's response as being satisfied with the reaction he had provoked and later in response to a question from the Commission that his sense was that at that meeting MJ was trying to "push AM's buttons". Finally, MJ's contentions are not supported by my observations of AM's demeanour under cross-examination (AM was in the witness box for an entire day) and in the various conferences convened by the Commission regarding MJ's application. AM in my view was willing to acknowledge in her evidence where she may have handled things better, e.g. the meeting with AC and MJ on 29 March 2019 regarding the systems change specification document. I note also that AM apologised to MJ on a number of occasions, i.e. when MJ said to her that he was offended by her use of the Word "steal" in regards to the desk drawer incident, when she became frustrated with MJ in their meeting of 27 June 2019 and when she learnt that she had copied in another staff member in an email to MJ which referred his PIP. As to whether AM's frustration with MJ on occasions was unreasonable, the evidence suggests that MJ on a number of occasions disagreed with AM's requests. For instance, AC's evidence observation was that in his meetings with MJ and AM MJ frequently pushed back on certain requests made by AM or failed to agree to her work-related questions. In short, the evidence does not support her finding that AM's frustration was unreasonable.
[38] The above analysis does not support a finding that MJ's contentions regarding AM's conduct are made out.
[39] I turn now to consider the issue of whether the decision to place MJ on PIP was reasonable management action. Drawing on the decisions in Blagojevic and BOQ, the test in this regard is whether "the decision to introduce the PIP lacked any evident and intelligible justification such that it would be considered by a reasonable person to be unreasonable in all the circumstances"[71] (underlining added).
[40] Key findings which can be drawn from the evidence in this case which are relevant to the question of whether the decision to place MJ on PIP was reasonable management action include that:
[41] I note also that the Respondent's Performance Management and Development Policy states at Appendix 1 that:
"5. Where a staff member is rated as 'needs support' or 'unsatisfactory' (or the equivalent) at any point in the performance cycle or there are concerns about the level of performance, the Supervisor/Manager should commence action under the informal procedures below."[72]
[42] Having regard to the above conclusions, the above table which sets out key aspects of the parties' respective submissions and/or evidence regarding MJ's instances of alleged bullying behaviour and the Respondent's Performance Management and Development Policy, I am not satisfied that MJ has made out that the decision to introduce the PIP lacked any evident and intelligible justification such that it would be considered by a reasonable person to be unreasonable in all the circumstances. In my view the material before the Commission points to the Respondent having a number of legitimate and well-founded concerns regarding MJ's performance. While the Respondent acknowledged that the feedback provided to MJ regarding the 30 January 2019 implementation date was erroneous to the extent that proceeded on the basis that he had inserted that date in the Clarity Environments Brief he provided to the PMO in January 2019, that does not diminish the significance of the various other performance issues raised with MJ. I further note that the Respondent's concerns regarding MJ's performance appear to have spanned a period of three years, though I also note that MJ's performance rating of "Requires Improvement" for 2017-2018 was revised on review.
[43] As to the decision not to offer MJ the opportunity to act in AM's position, while I understand MJ's disappointment with the decision, his view that he was entitled to the opportunity is misplaced. More importantly however, based on JK's evidence, the decision not to offer the opportunity to MJ was made by MG as opposed to AM, albeit having regard to AM's advice. Further, the reasons as to why MJ was not offered the opportunity (which included the detrimental impact on MJ's other work priorities[73]), are in my view entirely reasonable considerations. While it would have been advisable had either MG or AM advised MJ that AS would act in AM's absence prior to AM informing her team of the decision, the fact that this did not occur does not make the decision unreasonable management action. As noted in Blagojevic "[t]he test for reasonable management action is whether the "management action was reasonable, not whether it could have been undertaken in a manner that was 'more reasonable' or 'more acceptable'."[74]
[44] In summary, the material before the Commission supports a finding that the feedback provided to MJ, the decisions not to offer him the opportunity to act in AM's position and to place him on a PIP and AM's behaviour/conduct were all reasonable management action carried out in a reasonable manner. While some aspects might have been better handled, that does not make the particular management action unreasonable or mean that it was not carried out in a reasonable manner.
[45] For all the above reasons, I am satisfied that the various actions/conduct of which MJ complains were reasonable management action carried out in a reasonable manner. As such, drawing on the decision in SB, I do not consider it to be bullying conduct. The Respondent's jurisdictional objection is therefore upheld and MJ's application will be dismissed. An Order to that effect will be issued in conjunction with this decision.
I. Sekler together with H. Chang for the Australian Criminal Intelligence Commission
[2] Form F72 - Application for an order to stop bullying at Question 2.1
The Commission upheld the Respondent's jurisdictional objection under s 789FD(2), found the complained-of conduct was reasonable management action carried out in a reasonable manner, and dismissed MJ's application for an order to stop bullying (order to be issued) (see [8], [45]).