Fair Work Act 2009

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

Application for an FWC order to stop bullying - Applicant not bullied - no risk of bullying at work - application for an order to stop bullying dismissed on the basis of no reasonable prospect of success.

• [1] On 7 May 2024 Mr Faisal Mohammed Hamid (the Applicant) filed an application for an order to stop bullying pursuant to s.789FC of the Fair Work Act 2009 (the Act). Mr Hamid alleges that he has been bullied while at work. The application was made in relation to Cimpress Australia Pty Ltd T/A Vistaprint (the Employer/Respondent) and names two individuals, Mr Hamid's direct line manager (the first named person) and the senior manager of maintenance and facilities (the second named person).

• [2] In the application Mr Hamid describes the conduct that he defines as bullying as follows:

1. On joining the organisation in late May 2023, he formed the view that because "most of the IT services were actually managed by global IT teams" he had limited tasks and opportunity for professional growth. Soon after commencing employment, he applied for a Product Manager role and says that after his unsuccessful application he was taunted, ridiculed, belittled and encountered hostility from his manager. He says this occurred in private and in front of his peers. Specifically, this included no assistance offered from his manager when he asked for assistance to "build" into the Product Manager role.

1. He submits that he was instructed to prepare security cards and told that he was likely to continue with that task for 3 years. He was further instructed to clear 3 rooms/ 12 pallets of IT waste. He submits that this direction came from the senior facilities manager.

1. His manager together with HR raised concerns about his behaviour in the workplace with him.

1. Directions to perform future hardware "cleanups" while in group meetings, which were referred to as projects, he submits were mockery and conduct intended to hurt and destroy his reputation. Mr Hamid submits that he was not briefed on real IT projects.

1. Mr Hamid did not like being told that he was not responsive enough when he did not finish setting up a laptop for a new HR staff member. He objects to have had to attend a meeting with his manager, the senior facilities manager and HR, submitting this was victimisation. He refused to accept responsibility for the complaints against him and alleges that the behaviour of the three was belittling and cruel. He further submits that the comments by the senior manager that he may leave if he didn't want to work there, was pressure on him to quit.

1. He submits that his manager did not address the instances when a co-worker physically hit or punched him as a joke. He submits that he spoke to the employee directly which resulted in an apology and the behaviour ceased. He submits that he then placed a webcam on his desk to see who may be approaching him.

1. He submits that the performance improvement plan (PIP) placed on him undermined his self-worth. He submits that the PIP lacked clarity and genuineness; the scrutiny and criticism left him feeling like a failure. He further submits that the PIP targets were unattainable and simply a form of bullying and micromanagement. He uses other descriptions for the behaviour of the two he names in his claim including "lies" and "discrimination." Mr Hamid describes the PIP reviews as torture and ongoing bullying.

1. Mr Hamid alleges his privacy was breached through the sharing of personal information.

1. Mr Hamid submits that he was fearful of losing his job.

• [3] The Respondent denies that the Applicant was bullied at work and that the action of the two people named was reasonable management action that does not amount to bullying. It submits that the Fair Work Commission (the Commission) cannot be satisfied that the Applicant was bullied at work within the meaning of s.789FD of the Act and that the application ought to be dismissed.

• [4] As the matter was not resolved through conciliation at the Commission over July 2024, Mr Hamid advised that he wished for his application to be determined by arbitration. Accordingly, directions were issued for the filing of submissions and evidence.[1] However, instead of producing witness statements (of anyone other than himself), Mr Hamid produced a list of 47 names attached to his statement identifying each person as a witness "to attend".[2] The Respondent produced its submissions and 12 witness statements on 23 September 2024. Following this, they requested the Applicant to confirm which of their witnesses are required for cross examination at the hearing scheduled for 17 and 18 October 2024. The Applicant was directed by the Commission to identify which of the Respondent's witnesses were required for cross examination by 11 October 2024 and provide a list of questions to be put to each witness by 15 October 2024.

• [5] The Applicant responded that he required the attendance of all of the Respondent's witnesses plus additional witness statements from his list containing 47 names.

• [6] On 14 October 2024, the Respondent requested that the application be dismissed because the Applicant did not comply with directions and the Applicant further insists on the production of 35 witness statements from individuals that are not witnesses in this matter. Concern was raised that the Applicant's conduct was unreasonable and vexatious, adding cost and inconvenience to the Respondent, their witnesses and the Commission. The Respondent further suggests that it is open to the Commission to determine the matter on the papers, seeing that the Applicant has called no witnesses or produced witness statements, other than his own. Alternatively, it proposes that its witnesses should be excused from attendance at the hearing.

• [7] The hearing that was scheduled for 17 and 18 October was subsequently adjourned, and a directions hearing was listed in its place on 17 October. In preparation for the directions hearing, the Applicant was directed to provide a list of the witnesses of the Respondent that he would like to cross-examine by midday on 16 October and provide a list of questions for the witnesses by midday 17 October. Additionally, as the Applicant's submissions in reply were late, he was also directed to file this by 5pm on 15 October 2024.

• [8] Mr Hamid did not make an application for orders requiring persons to attend in the required form. Nevertheless, the Commission has the power to inform itself, as it considers appropriate under s.590 of the Act; this includes making orders requiring witnesses to attend. Making orders to attend is an important process to enable the Commission to make informed decisions on important matters to be determined. However, the proposed questions prepared by Mr Hamid lacked precision, and relevance to the matter. The proposed questions to the witnesses are irrelevant to proving a fact or to prove the importance of a fact. Mr Hamid did not demonstrate why or how attendance of each witness will assist the Commission to make its decision in respect of whether Mr Hamid was bullied, and whether there is ongoing risk requiring an order to stop bullying.

• [9] To compel a witness to attend is a discretionary power. In exercising this power, the Commission ought to have regard to its obligations in its performance of its functions. An order to require 47 witnesses to attend to answer questions such as how often did you work with the Applicant? did you notice any issues? how would you describe the Applicant's behaviour in the workplace?[3] simply do not demonstrate any relevance to the issues to be determined. And it is unreasonable to require any of the witnesses to attend for no obvious relevant purpose. To grant the order in part or in its entirety is unreasonable in the circumstances of this matter and will impose undue cost and inconvenience. Frankly, there was no benefit to the Commission to issue the orders as proposed.

• [10] In addition, it became evident that Mr Hamid failed to understand that the application was made by him, and therefore the onus was on him to make his case. Mr Hamid presented only his own witness statement containing allegations of bullying and references to conduct that he describes as bullying. No evidence to corroborate his statements on fact was tendered by him. His expectation that the Respondent demonstrate his case or that the Commission investigate his allegations was ill conceived. For the above reasons, Mr Hamid's request for an order for the witnesses to appear plus the additional 35 proposed witnesses was denied.

• [11] At the directions hearing, the parties agreed to have the matter determined on the papers. It was acknowledged that the parties had no further requirement to examine witnesses and relied on their evidence and submissions as tendered. The parties agreed that the materials submitted were sufficient for the Commission to determine the matter on the papers.

• [12] The Applicant was self-represented, and the Respondent was represented by Australian Industry Group.

• [13] Mr Hamid seeks an order from the Commission to stop bullying and he provides some information of what he describes as incidents and patterns of bullying against him. A statement was tendered, dated and signed off as a declaration that the document is true and accurate to the best of his knowledge and belief. The statement is set out differently from the application and it contains allegations not in the application. In summary, the statement provides the following submissions:

• • Menial tasks and "taunting" - Having commenced employment on 29 May 2023 as an IT systems Administrator initially under a 6-month probation period, Mr Hamid submits that he was assigned menial tasks by his manager (the first named person). He describes these menial tasks as having to clear out 3 rooms of outdated IT equipment. He further submits that these tasks were more aligned to a warehouse role and not consistent with his job description.[4] Mr Hamid's job description was attached as annexure 1.[5] The alleged "taunting" by his manager is a reference to the Applicant as the person responsible for "cleaning and/ or recycling projects," and listing his name on the whiteboard against the projects in meetings.[6] He further states that his manager justified this conduct by saying that his manager treated him the same way when he joined the company.[7] It is alleged that the Applicant's manager told him that he was treated harshly when he started and that "Caucasian Aussies in the business do this treatment to immigrants".[8]

• • Discrimination and career hindrance - It is submitted that the work environment was standard initially, but a few months in he noted how quiet it was, so he applied for a Product Manager position.[9] He was unsuccessful for this position and submits that the HR Manager suggested he work with his manager to develop his skills for future opportunities. He asserts his manager's (first named person) lack of support to develop his skills as a product manager was discriminatory and his career was hindered.[10] He submits the second named person (senior manager of maintenance and facilities) was aware of and supported the discrimination. He alleges that gossip and accusations that he was not committed to his job circulated in the workplace. He mentions seven additional names as having made comments or witnessing gossip. [11]

• • Allegations concerning the HR Manager - Mr Hamid alleges that the HR Manager invaded his personal space. It is alleged that the use of "sexual arousal"[12] was victimisation. By this he means that she walked very close to him, and presumably his reference to victimisation is a form of conduct to intimidate him. Mr Hamid makes further serious and offensive allegations without any evidence.[13] It is also alleged that he told the HR Manager "to back off."[14] I observe that Mr Hamid did not name the HR Manager as a person in his application.

• • Abuse and other conduct by the second named person - It is alleged that the second named person attended the one-on-one meetings between himself and his manager. It is alleged derogatory and disrespectful comments were made and he was verbally abused.[15] The description of the offensive behaviour included the second named person talking too fast, interrupting him, use of street slang, changing meeting agenda's and advising that further meetings will be called. The Applicant submits that the second named person did not make eye contact with him and when he raised this direct, it "was taken lightly."[16]

• • Allegations against a supply chain manager - It is alleged the supply chain manager in asking if he had matches or a lighter insinuated that the Applicant would burn down their "flourishing business."[17] The application makes no reference to a named person in the supply chain manager's position in his application.

• • PIP and micromanagement - Mr Hamid alleges that both named persons micromanaged him and placed him on a performance improvement plan (PIP) with no clear expectations; further that meetings had misleading agendas and were called with short notice.[18] He alleges that he was micromanaged and pressured during the performance meetings. This reference to micromanagement included monitoring of his work, questioning the tasks undertaken and checking on or imposing deadlines.[19] It is further alleged during a PIP meeting that his manager asked "all this discrimination, how did I feel about it."[20] One of the issues described as micromanagement included pulling him up for arriving for work late, even though the Company had flexible start and finish times and further that he was not held to the same standard as other staff.[21] It is alleged that no support was provided by HR, instead they collaborated with the PIP process, even when he sought their assistance with bullying complaints.[22] At the 4th PIP meeting in May 2024, the Applicant was given a warning, he submits that he screamed in response and left the room. Later he was accused of slamming the door, which he says as a "lie."[23]

• [14] Mr Hamid left the workplace on 24 May 2024 and has not returned. He has been on unpaid leave since exhausting his leave entitlements. Copies of WorkSafe certificates of capacity for the period 24 May- 2 September 2024 were tendered identifying severe anxiety, depression and stress.[24]

• [15] The Respondent denies the allegations contained in the Applicant's submissions and contends that the action of the two named persons is reasonable management action. It submits that Mr Hamid was employed on 29 May 2023 in the position of full-time IT Systems Administrator, an entry level IT help desk position.[25]

• [16] The Respondent submitted signed witness statements from 12 employees including the two named persons in the application. Witness evidence was provided in response to the Applicant's submissions by those individuals named by Mr Hamid that allegedly either witnessed or were involved in the behaviour described as bullying.

• [17] The Respondent submits that it had multiple concerns with the Applicant's conduct and performance, which included:

• The Applicant was witnessed sleeping in his car during work hours;
• The Applicant left his work location during his working hours, for hours at a time on at least 11 separate occasions from June 2023 to November 2023, without communicating his whereabouts to his manager;
• The Applicant was not performing his duties to the required standard;
• The Applicant failed to undertake tasks reasonably assigned to him by his manager, like the Google migration project and attending VSU meetings;
• The Applicant exhibited poor communication, including failing to reasonably respond to requests for IT support, not answering calls for IT support, and not responding to communication from his manager;
• The Applicant was reported to be rude and "disrespectful" to others;
• The Applicant was witnessed excessively using his work devices for personal reasons, like viewing SEEK (a recruitment website) in work time;
• The Applicant admitted to printing large volumes of SEEK reviews of Vistaprint in work time and on the Respondent's printer, which was not part of his duties; and

• • The Applicant video recorded his manager and Vistaprint's premises without consent.[26]

• [18] The Respondent submits that the above performance and conduct concerns warranted management action in accordance with its policies and procedures. It submits that initially informal feedback was provided, followed by weekly one-on-one meetings with his manager, then the procedure was escalated to a formal management process. On 4 April 2024 the Applicant was invited to a meeting to discuss performance and conduct concerns which was followed by a letter of expectation. Due to the Applicant's response in the meeting, management also placed him on a performance improvement plan (PIP).[27]

• [19] As part of the PIP, the Applicant's performance was reviewed, and he was directed to attend regular meetings. Despite the PIP, concerns with the Applicant's conduct and performance continued. On 7 May 2024 the Applicant was given a written warning and a decision was made to extend the duration of the PIP which was notified to him at the same time.[28]

• [20] On the day that Mr Hamid received his warning, he filed this bullying application in the Commission.[29]

• [21] The Respondent contends that it followed a thorough and structured process, and that the PIP was clear and achievable.[30] The PIP outlined the required standards which were achievable. The Respondent gave evidence that the Applicant informed his manager that the PIP was achievable. In response to the assertion from the Applicant that the process often involved short notice and that agendas were misleading, the Respondent submits that clearly described meeting invitations were sent to the Applicant well in advance,[31] however, the Applicant did not always attend meetings or was late. This required meetings to be rescheduled.[32] The Respondent also submits that it provided support for the Applicant to achieve the standards of performance in his PIP. It denies that the Applicant reported that he was stressed during the PIP meetings.[33]

• [22] There is no need to summarise each of the witness statements separately. Each witness disputes the allegations made by Mr Hamid, do not support his allegations of their witnessing events and where relevant provide further information in relation to the allegations. It is obvious that none of the witness statements corroborate any of the allegations contained in the application or the submissions made. Relevant references are made to the witness statements in the context of the allegations made by Mr Hamid in paragraphs [31]-[72].

• [23] Where a worker reasonably believes they have been bullied at work, they may apply to the Commission for an order to stop bullying.[34] The remedy available to the Commission in respect of a bullying application is an order to stop bullying of a worker. Relevantly, s.789FF of the Act provides the Commission with the discretion to issue any order it considers appropriate "to prevent the worker from being bullied at work by the individual or a group of individuals,"[35] where it is satisfied that the worker has been bullied at work; and there is a risk that the worker will continue to be bullied at work.[36]

• [24] It is not disputed, and I am satisfied that Mr Hamid is a worker for the purposes of the Act. The definition of worker has the same meaning as in the Work Health and Safety Act 2011.[37] An employee is a worker.

• [25] The Commission may issue an order to stop bullying, that it considers appropriate, if an application is made under s.789FC, and if it is satisfied that:

1. The worker has been bullied at work by an individual or group of individuals; and
2. There is a risk that the worker will continue to be bullied at work by the individual or group of individuals.

• [26] An order is to have the effect of preventing future bullying behaviour at work by an individual or a group of individuals.

• [27] Section 789FD contains the definition of bullying when a worker is "bullied at work". Section789FD provides:

(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."

• [28] There is no contest that the employer is a constitutionally covered business, and the alleged bullying behaviour occurred at work. The issue however is whether the behaviour alleged by Mr Hamid constitutes bullying, if it occurred at all.

• [29] Section 789FD is to be applied objectively, that the behaviour to a reasonable person having regard to all of the circumstances may see the repeated behaviour as unreasonable, and that behaviour creates a risk to the health and safety of the complainant.[38] This includes the alleged behaviour that is 'victimising,' 'humiliating,' 'intimidating' or 'threatening.'[39] However, to be clear, behaviour that is reasonable management action carried out in a reasonable manner is not bullying.[40] This also requires an objective assessment that the management action was reasonable but does not mean that the management action ought to be 'more reasonable' or 'more acceptable.'[41]

• [30] A review of the Applicant's group of allegations against the legislative framework and legal tests is now considered in the context of the evidence before the Commission.

Menial tasks, taunting, belittling, hostile work environment and gossiping

• [31] A witness statement from the former Head of People and Culture[42] (HPC) was tendered in which she described the roles of the three employees in the IT Team, Mr Hamid held the most junior position, with the other two holding senior systems engineering positions. An important aspect of the entry level IT position is to provide help desk support to the manufacturing and production teams ensuring that the machinery runs as it should to meet production deadlines. This witness outlined the performance and conduct problems identified with Mr Hamid in his first six months of employment. This witness described the approach taken by her team to support line management with performance management of Mr Hamid. This witness described the complaints she received from her team that Mr Hamid was rude and abrasive, in this respect she provided detail concerning the behaviour complained about and enough detail to understand when and the context of the behaviour. In regards to this I observe that Mr Hamid complained about having to prepare security passes and IT work associated with recruitment. The HPC also provided the detail of complaints that were reported to Mr Hamid's line manager (first named person). The HPC provided her complaint about Mr Hamid leaving work without completion of the IT onboarding for one of her staff even though she was assured by him that it was done. She provided evidence of Mr Hamid not responding to calls or tickets on the help desk, unexplained absences and on one occasion finding him asleep in his car at 9.30am during working hours and further that he attended to personal matters during work time.[43]

• [32] The first named person, the Lead Systems Engineer provides a witness statement[44] and describes the reporting structure consistent with the evidence of the second named person and former HPC. Supporting evidence provided includes the letter of appointment[45] which stipulates that the role accepted by Mr Hamid is IT Systems Administrator located at the manufacturing site. A description of the duties, i.e. providing on-site support to the manufacturing site, identifying and investigating to resolve IT incident, maintaining asset management, responding to IT tickets and assisting the team with IT projects is consistent with other witness evidence and the job description. I do observe an error in the witness statement as referencing the site as Deer Park, where it should be Derrimut. I note this is an obvious error in the statement.

• [33] The first named person addresses the change to hours of work and allegations that Mr Hamid was discriminated or targeted. Given that the role was to support the manufacturing operation which started at 7.00am, Mr Hamid's initial flexibility was curtailed to commence at 7.30am after his failure to respond to manufacturing IT issues which impacted the production process. Evidence of shift patterns undertaken by the first named person and the Systems Engineer II (Systems Engineer) show a clear distinction in the roles.[46] Mr Hamid was not required to be on-call, work weekends nor the evening shift patterns to complete projects with international teams. It is disputed that the task of maintaining redundant IT equipment was a menial task nor a warehousing role. Evidence of the team's objectives citing control and management of hardware and systems inventory and hardware lifecycle is clearly identified.[47] A photograph of the white board used to identify and manage team workload, projects and deadlines was tendered. I observe that the picture does not support Mr Hamid's allegation that the whiteboard was used as a tool to mock the project or Mr Hamid. The first named person further disputes that very little work was required of the role as alleged by Mr Hamid. The first named person says that international teams do not support the manufacturing operation or the employees of Vistaprint. He further provides data regarding the number of JIRA tickets (requests for IT support) per month which Mr Hamid did not manage resulting in the two systems engineers stepping in to provide IT support. This failure to meet the requirement of the job led to the performance management process. The first named person denies taunting Mr Hamid regarding his application for the sales position which is described as a production manager role in the application.[48]

• [34] The second named person as a senior manager in his witness statement disputes the project to consolidate redundant IT hardware for disposal was not in line with the job description. Evidence of the job description describes the task as "own the deployment and decommission of IT Hardware".[49] He further describes the responsibility not as a menial task, but essential to be managed by IT. He states that he never witnessed any inappropriate behaviour toward Mr Hamid by the first named person and denies any of the allegations against him as well. He says that he is aware of no complaint made regarding discrimination in accordance with the Respondent's Discrimination, Harassment and Bullying Policy. In response to allegations that the whiteboard was used to mock Mr Hamid, pictures of the Board were tendered into evidence.[50] Having observed these pictures there is no visible mockery or belittling of either the project or Mr Hamid.

• [35] In Mr Hamid's statement he refers to two procurement specialists that witnessed certain conduct that he describes as bullying. In relation to the allegation that taunting was common in the workplace he states that one of the procurement specialists (Procurement Specialist 1) was "emotionally abused" by her Manager of Supply Chain.[51] Procurement Specialist 1 provided a witness statement because Mr Hamid alleged that she had witnessed the taunting and that she too was bullied by her own manager, suggesting that bullying behaviour was commonplace. This witness denied ever being bullied herself and found it difficult to comprehend why Mr Hamid made such a statement. The witness in contrast explained the support she received from her manager, including support she received from her manager to attain a promotion. She further denied ever witnessing any bullying behaviour toward Mr Hamid from his manager or the second named person. This witness describes her close vicinity of work location to Mr Hamid and says that she did not witness any behaviour to suggest tension or conflict. She further stated that she did see the IT team use a white board in meetings and ascertained that it was used to allocate work. And how they tracked against completing work. This witness did not corroborate any of Mr Hamid's allegations, rather her account raised serious questions of credibility of the allegations made.[52]

• [36] Mr Hamid alleges that the Senior Engineer Manufacturing Technology and Learning was witness to various taunts, a hostile environment and gossiping by the Systems Engineer in the IT team who was not a named person in the application, but allegations were made in the statement comprising the Applicant's submissions. This witness denies ever witnessing or hearing each of the allegations made by Mr Hamid against the Systems Engineer or any other person referred to in the submission.

• [37] Mr Hamid alleges that two Manufacturing Engineers witnessed various taunts, a hostile work environment and gossiping to and against him by the Systems Engineer, the Team Leader of Textiles, the Senior Payroll Specialist and Supply Chain Manager. Both Manufacturing Engineers deny witnessing or hearing each of the allegations made by Mr Hamid.[53]

• [38] The Senior Payroll Specialist provided a witness statement as Mr Hamid alleged that she had witnessed gossip that he was to be fired and that on one occasion she was aggressive toward him. The Senior Payroll Specialist was surprised by the allegations. She denied these allegations and further denied witnessing inappropriate behaviour between Mr Hamid and the first and second name person. Further she states that her role is not part of the HR team and is not aware of any decisions regarding any person's employment until a decision is made and she is instructed to process an employee's final pay. No such instructions have been given regarding Mr Hamid. [54]

• [39] The Systems Engineer provided a witness statement as Mr Hamid alleges that he was witness to numerous events described as bullying by the first and second named person, the alleged allocation of menial tasks, allegations of belittling, mockery, a hostile work environment and alleged double standards in commencement time. It is also alleged that the Systems Engineer spread gossip about Mr Hamid. All of the allegations were denied. The Systems Engineer provides insight into the working relationship between them and his observations that Mr Hamid found it difficult to engage with members of the production and engineering teams, could not manage multiple tasks, was sensitive to criticism and avoided meeting with the production and engineering teams. I observe that Mr Hamid does not dispute any of this evidence, but rather in his own evidence demonstrates a sensitivity to any feedback or criticism.

• [40] The Systems Engineer witness statement also provides observations of both the first and second named person when interacting with Mr Hamid. He describes these interactions as professional and respectful. He further gave evidence of his own interaction with Mr Hamid, which caused him to carry a larger load as staff bypassed Mr Hamid as the first IT contact support point due to conduct and performance concerns. He gave evidence of his own complaints to management and HR.

• [41] Specifically relating to some of the allegations, the Systems Engineer states that the recycling/ disposal project was not carried out solely by Mr Hamid, but all three in the team held responsibility for the task scheduled to be performed twice yearly.[55] He recalled a team meeting where Mr Hamid was upset that his name was against the recycling project and to diffuse the situation he removed his name and wrote his own. He further recalls Mr Hamid raising his voice in anger and their manager looking shocked and became quiet. Mr Hamid did not contest this evidence. He further denies making any comments about anyone being bullied including himself.

• [42] The Systems Engineer further elaborates on the concerns he had with Mr Hamid's performance and describes the complaints he made regarding the events of March and April 2024 directly to the senior manager of facilities and HR while their manager was on leave, and subsequently to his manager. He denies making any comments to anyone outside these direct complaints about Mr Hamid. The Systems Engineer tendered two attachments: His detailed report of Mr Hamid's performance over March and April to management and his feedback for Mr Hamid's upcoming performance and development review. This second document was developed after Mr Hamid nominated the Systems Engineer to provide feedback.

• [43] Mr Hamid made spurious allegations without any supporting documentation or witness evidence. The allegations were vague and were evidently denied by the witnesses that Mr Hamid purported to rely on. There was no evidence to support allegations of belittling, gossiping and a hostile work environment. I do find the allegations without merit and particularly in relation to the allegation that Mr Hamid was given menial tasks cannot be supported by the evidence. The expectation to perform tasks associated with recycling and disposal of IT hardware and other equipment was a reasonable management direction and consistent with the team responsibilities and the requirements of the role. Again, based on an understanding of the work of IT teams, it is not an unusual expectation that teams are responsible for their own equipment allocated to staff and to be disposed. In regard to these allegations, I find no evidence of unreasonable behaviour toward Mr Hamid as detailed in his application and submissions that can be characterised as bullying under s.789FD of the Act. Consequently, no orders can be made to stop bullying when there is no evidence of bullying.

• [44] The evidence of the HR Manager (the correct title being Human Resources Business Partner) addressed Mr Hamid's allegations of discrimination and career hindrance. She provided evidence relating to her role in the recruitment of the Product Manager role and the assessment of Mr Hamid's application. She identified the lack of skills and experience of Mr Hamid for the Product Manager role (which was a senior role requiring at least 5 years of specialist experience and differed significantly to the entry level IT position he held). This witness recollected the discussion with Mr Hamid about his career goals and she provided guidance on setting development targets in line with the business needs.[56] This evidence contrasts with the statements made by Mr Hamid and on balance are more persuasive than the allegations that Mr Hamid's career with the Respondent was hampered by his manager and other staff. Mr Hamid had not been long in his role before he aspired to a role outside his skills and experience. It is reasonable that he would firstly concentrate on developing a high level of competency in his own role before assuming he had an entitlement to a more senior role for which he did not have the necessary skills and experience.

• [45] In terms of the allegation by Mr Hamid that his manager did not support his personal development, the first named person in his witness statement says that he did provide support and training in IT, but made clear to Mr Hamid that he did not have sales experience. As Mr Hamid sought a business development role in sales, the first named person referred him to their LinkedIn Learning page (Cimprress 360) where he can learn the skills in his free time.[57] The first named person provided a copy of the advert for which Mr Hamid expressed an interest and applied for. The advert references a business development manager (sales). The advert[58] clearly identifies a sophisticated sales role requiring specialised experience in sales, business development, customer liaison and use of salesforce to track and report on stages in set goals. The advert is unrelated to the IT support role for which Mr Hamid was employed to do.

• [46] In relation to the allegation that the Systems Engineer spread rumours/ gossiped about Mr Hamid after his unsuccessful application for the sales position and thereby damaging his career prospects, the witness statement says that he was unaware that Mr Hamid applied for the position until a discussion initiated by Mr Hamid himself. In relation to their discussion, he provides context to the conversation saying that he did say words to the effect "that he jumped the gun" because he was not surprised that after two months employment, he was unsuccessful given the role is ordinarily given to someone with a number of years' experience in the business. Despite this, he says that he offered to guide a closer working relationship with the engineering team because they work closely with production managers. While Mr Hamid initially expressed interest in this guidance and support, he did not show any further interest.[59] Mr Hamid did not contest this evidence.

• [47] The allegations made by Hamid in terms of alleged discrimination and career hindrance I do find unfounded. Firstly, Mr Hamid was only into his position two months before he applied for a role which he did not have the skills or experience to perform. Mr Hamid was employed in an IT entry role for which he did not perform to the required standard. In my opinion there was no obligation for any of the staff- HR, his manager or the Lead Systems Engineer to support his development to meet the requirements of a role that was more senior and in which he lacked skills and experience. Despite the lack of obligation to support him in the way he sought, his manager, the Lead Systems Engineer and HR offered support to develop his skills sets to place him in a better position to seek alternative roles at a later stage. Mr Hamid did not heed these supports and, on my assessment, contrived the allegations opportunistically against those named in the application and in the submissions. It is of relevance that Mr Hamid was employed to service internal customers- the production, engineering teams and admin to ensure their IT needs were met. He failed to meet these obligations and avoided meeting with the manufacturing/ engineering teams at toolbox meetings. Given this evidence, which is persuasive, it is evident that Mr Hamid did not demonstrate the fundamental skill set for a business development manager role. Despite this deficiency, no effort was made on his part to attend to this skill deficiency. Instead, he was sensitive to constructive criticism, clearly a trait not conducive to fulfilling a more independent and senior position in the Company. For the above reasons there is no finding of bullying in this regard and no orders can be made.

• [48] The HR Manager (Human Resources Business Partner) referred to in Mr Hamid's statement had ceased employment with the Respondent in April 2024, so there is no risk of bullying by this person should Mr Hamid return to work. I observe that allegations against this Manager were made in the statement that formed the submissions in this matter. There are no allegations contained in the application, nor is this Manager a named person in the application. Despite the absence of any risk of bullying if there was evidence of bullying, this former Manager provided a witness statement containing her recollection of interactions and observations of Mr Hamid in meetings with her and with others.

• [49] The HR Manager also addressed Mr Hamid's remarks that she allegedly used sexual arousal, for which she assumed this meant that she walked too close to Mr Hamid given the vague allegations. The HR Manager was surprised to see the allegation and states it is slanderous, defamatory and should not be made lightly. She assumes that Mr Hamid means to say that she invaded his personal space, which she denies and states that she maintained professional boundaries with him as she did with other staff. She further denies whispering to him or being told to "back off" as alleged.[60] The HR Manager directly observed the interaction between Mr Hamid and the second named person and denies that Mr Hamid was laughed at, made fun of or street slang used- albeit what was intended by the term street slang was unclear.[61]

• [50] The second procurement specialist (Procurement Specialist 2), which Mr Hamid alleges witnessed the inappropriate behaviour of the HR Manager, provided a witness statement. This procurement specialist sits at a desk no more than 1 metre apart from Mr Hamid and categorically contends that no behaviour as described was witnessed. The Procurement Specialist 2 further says that the HR Manager was not only a "lovely, friendly person," she always behaved appropriately towards Procurement Specialist 2 and others and never made him feel uncomfortable.[62]

• [51] The second named person also did not corroborate the allegations by Mr Hamid that he witnessed the HR manager acting inappropriately. In addition, the witness statement of the first named person did not corroborate Mr Hamid's allegations.[63]

• [52] In relation to the HR Manager, the Systems Engineer witness statement recalls saying to Mr Hamid that she was married but this was not to suggest that Mr Hamid was "after her" but to explain why the HR Manager had two surnames in the IT systems. Mr Hamid did not challenge this evidence which disputes his allegation.

• [53] In relation to all allegations concerning the former HR Manager, I do not find any evidence of bullying and clearly no risk of any bullying into the future. In terms of the allegations made, I do find that they are serious and offensive. To make such allegations without the slightest of evidence is malicious and insulting to the person concerned and to the Company. No such abhorrent allegations are excusable. Needless to say, there is no evidence of bullying, and no orders are to be made in this regard.

Abuse and other conduct by the second named person

• [54] Mr Hamid alleges that Procurement Specialist 2 witnessed emotional abuse by the second named person. However, the witness statement tendered says no untoward or inappropriate behaviour was witnessed by either the first or second named person toward Mr Hamid. The Procurement Specialist 2 states that she sits on the same floor as the IT team and in fact sits opposite Mr Hamid and their desks are no more than 1 metre apart. Despite this proximity no evidence was given supporting the allegation that abuse, or other bullying conduct was witnessed.

• [55] The second named person provided a detailed witness statement and supporting evidence. This senior manager described his area of responsibility as operational infrastructure that includes the IT services delivered by the first named person and the team in which Mr Hamid works. While this named person did not directly manage Mr Hamid's performance, he was well aware of concerns raised regarding performance. This was brought to his attention as he was copied into emails of complaints by a maintenance supervisor and the former HPC.[64] In addition the Systems Engineer raised complaints directly because Mr Hamid was not completing IT tickets- nor effectively providing IT support resulting in an increased workload for the Systems Engineer. The Second named person did not attend the first PIP meeting, but described his attendance at subsequent meetings, to which he was entitled to attend as the senior manager in charge. He described the requirement of Mr Hamid to attend regular review meetings and identified which meetings he did not attend or was late to and meetings had to be rescheduled.

• [56] The second named person described what occurred at each PIP review meeting and the events leading to the letter of warning. At the meeting resulting in the first warning, instead of the performance requirement to resolve 30% of IT tickets to be increased to 40% remained at 30% and the PIP timeframe was extended. He further describes the slamming of the door as Mr Hamid exited the meeting.

• [57] Again, similarly to the earlier allegations, Mr Hamid was vague and provided no supporting evidence to substantiate the allegations against the second named person. Further the witnesses that Mr Hamid identified to support his allegations provided contrary evidence. In the absence of any credible evidence to support allegations of bullying of any kind against the second named person no finding of bullying is possible and no orders can be made.

• [58] In addition to the statement by Mr Hamid that the Supply Chain Manager asked if he had matches (allegedly intimating that he would burn down the business), it is also alleged that the manager participated in gossiping and a hostile work environment towards him. The two Manufacturing Engineers alleged to be witnesses deny in their witness statements each of the allegations made.[65] The Supply Chain Manager is not a named person in the application and no evidence of the conduct described was tendered.

• [59] The Head of Procurement and Supply Chain (the Supply Chain Manager) also tendered a witness statement and, in that statement, denies the allegations against him, denies witnessing any hostility or unreasonable behaviour and denies abusing Procurement Specialist 1 as alleged by Mr Hamid. The statement further says that Procurement Specialist 1 (which Mr Hamids alleges was bullied and abused by the Manager) is a valuable team member and he recognised her contribution with a promotion within 6 months of joining his team, clearly contesting the allegations against him.[66]

• [60] Mr Hamid again made unsubstantiated allegations and no evidence to support in the slightest any of his statements. The evidence was overwhelming against the allegations made. Consequently, no finding of bullying is possible, and no orders will be made.

• [61] The evidence of poor performance and conduct reported from the former Head of People and Culture (HPC) formed the basis for supporting the first named person (Mr Hamid's manager) to coach, train, support and ultimately manage a PIP process. At the PIP meetings the HPC was present she states that she observed passive aggressive behaviour from Mr Hamid towards his manager. This witness formed the view from Mr Hamid's behaviour that he thought his duties were beneath him. The behaviour that she defines in this regard included his reluctance to perform administrative duties, resistance to following directions, he attended work only when he chose, completed work as he saw fit, and by the words used to challenge his manager in the PIP meetings.[67]

• [62] The former HPC described the Employer's processes and policies noting that at no time did Mr Hamid report a complaint of discrimination and harassment. In addition, she disputes the allegations of micromanaging during the PIP process. Instead, the HPC says that she observed the conduct of both named persons in the PIP meetings and says it was professional even when the Applicant aggressively challenged his manager, and the evidence put to him concerning his conduct or behaviour. She denies the allegations made by Mr Hamid in his statement and application, which included his allegation that he complained to her about his declining health.

• [63] One of the issues raised in the PIP meetings was the requirement to be on-the-job to provide IT support to the manufacturing operation. As production and operation managers complained on multiple occasions that they were unable to locate Mr Hamid for support, his punctuality and attendance was addressed in the PIP of 4 April 2024. Mr Hamid claims the expectation that he attends set hours was unfair and is an indication of double standards, however this is not supported by the evidence. Both engineers in his team (and both senior to him) had different duties and different obligations around hours of work (for instance being on-call and dealing with global matters). It is reasonable to expect timekeeping for a role that provides IT support around production. Specifically, the PIP reinforced the requirement to provide support from 7.30am to 4 pm. The HPC addressed this issue in her witness evidence. Further I observe the requirement in the PIP and the letter of warning that went to the same issues in the PIP dated 7 May 2024.

• [64] The second named person also addressed the matter of the PIP and allegations of micromanaging. He states that while Mr Hamid initially had some flexibility, his failure to respond to IT requests and often arriving late meant that the production team operational requirements did not receive adequate support when they encountered problems with scanners, printers and other IT. The second named person corroborated the evidence of the former HPC.

• [65] The first named person addressed performance concerns in his witness statement. Relevantly, he states that as leader of the IT team he received multiple complaints about Mr Hamid, these complaints were both verbal and in writing. He says that initially he sought to resolve the performance issues with one-on-one weekly meetings to guide Mr Hamid. However, performance concerns continued, and he presented into evidence emails concerning the failure to organise access cards for user accounts, logins for the Viper production system and Viper/ webshell accounts for staff.[68] A further complaint referred to in the witness statement was the incidence of sleeping during work hours. The first named person further says that between June and November 2023 Mr Hamid's whereabouts could not be accounted for on 11 separate occasions and directions from the manager were not followed. Failure to follow directions examples included to provide IT support in the data centre, the provision of education to production on Google migration, to attend VSU toolbox meetings joint meetings with the production team) and to close off JIRA tickets. Evidence regarding Mr Hamid's failure to take calls for IT support either on his work phone or on his monitor in April 2024 was also tendered into evidence.[69]

• [66] The first named person provides evidence of the performance management process commencing on 7 December 2023. Following the meeting he received an email from Mr Hamid advising that he felt "stressed" and "victimised" which led to a follow-up meeting together with the second named person and the HR Manager to check on his wellbeing. The first named person states that he referred Mr Hamid to their confidential employee assistance service.

• [67] The first named person proceeded on annual leave in March 2024 where Mr Hamid was to take instruction from the second systems engineer. It was reported on his return to work that Mr Hamid did not respond to IT requests for support, and an unwillingness to help or attend to urgent matters, He was informed that Mr Hamid was often seen on Seek during work time and he also witnessed this. He provided a statement regarding the printed Seek reviews and that Mr Hamid recorded him as he walked over to Mr Hamid's desk.

• [68] Following the above issues a meeting was scheduled for 4 April 2024 where Mr Hamid was asked why he was recording staff, made copies of Seek reviews of the Company during work time. Given the responses a letter of expectation confirmed the discussion at the meeting and clarified that business hours were for the performance of work duties, that he was not to record staff and was to conduct himself in accordance with the Code of Conduct, Company policies and to act to the required standard in the interests of the Company and staff.[70] I observe that Mr Hamid signed, albeit not immediately, the letter of expectation acknowledging that he read and understood its contents. At the same meeting of 4 April 2024 following a discussion regarding performance, the PIP was initiated.

• [69] The PIP contained clear goals and was subject to weekly review meetings. From the evidence tendered by the first named person it can be seen that Mr Hamid did not attend all of the meetings and even rescheduled meetings started late because of Mr Hamid. Minutes of the meeting were also tendered into evidence.[71] The evidence shows that Mr Hamid was not unclear of the goals and understood he could access assistance but chose not to.

• [70] On 22 April 2024, the second review meeting took place. It is at this meeting that Mr Hamid alleges that his manager stated, "All this discrimination, how did I feel about it?" The first named person denies making any such statement, and there was no evidence to support Mr Hamid's allegation. In fact, the description of the meeting of those involved clearly dispute such an allegation. The third meeting occurred on 30 April 2024 where Mr Hamid was given further feedback of performance deficiencies. The first person gave evidence that Mr Hamid became agitated but agreed to access support through training. At the fourth meeting on 7 May 2024 Mr Hamid reacted aggressively in tone stating that he did not understand what was happening when continued performance concerns were raised including lateness, failure to clock into the system and non-resolution of JIRA tickets. The first named person provided evidence of Mr Hamid's performance in terms of meeting reasonable expectations around resolving JIRA tickets. He says that Mr Hamid became upset after he was shown that he met the JIRA expectations by only 18% despite the objective of meeting 30%. Following the discussion regarding performance, Mr Hamid was given a letter of warning and the PIP extended for a further 4 weeks. Mr Hamid left the room slamming the door.[72]

• [71] On 7 May 2024, the first named person received the bullying complaint lodged in the Commission and Mr Hamid did not return to work from May 2024, calling in sick and producing a certificate of capacity. All other allegations made by Mr Hamid are denied by the first named person.

• [72] Having reviewed the process initiated by the Respondent including the PIP documentation, meeting notes, reports, the job description and letters to Mr Hamid I am satisfied that the process taken was reasonable management action conducted in a reasonable manner. There is no evidence of micromanaging, rather Mr Hamid was given extensive support by his manager and the Systems Engineer. The goals contained in the PIP are clear and unambiguous. The allegations thus made by Mr Hamid are unfounded including his allegations of double standards; there is reasonable explanations for the rostering of both systems engineers which contrasted with the role of first line IT support for internal customers. The allegations have no substance and cannot by any reasonable assessment be considered bullying. Clearly a PIP and warning process is uncomfortable but does not give rise to a bullying complaint if conducted in a reasonable manner. I do consider the management of Mr Hamid's performance was conducted in a reasonable manner. Consequently, in relation to these allegations, no finding of bullying is found, and no orders can be made.

• [73] While I have made mention of the vast majority of allegations in this decision, other allegations and evidence were before me. However, without referencing each individually, I have taken all of the evidence and submissions before me into consideration in reaching my conclusions.

• [74] Mr Hamid's performance was poor as supported by the reliable evidence and as a consequence required management action. The management action was conducted reasonably in terms of the PIP, the letter of expectations and the warning that was ultimately given on 7 May 2024. The process in my assessment was fair and reasonable but also appropriate in the circumstances of the obvious conduct and performance concerns.

• [75] Mr Hamid's allegations overall and individually are unfounded, much was vague and appears to have been a direct reaction to receiving the warning and extension of the PIP. Both of these management reactions in my view are justified. Further the allegations made in my view contain frivolous and vexatious elements, but the allegations concerning the former HR Manager are highly offensive, indefensible and damaging. I do observe that no formal complaints of bullying were made by Mr Hamid consistent with the Company's policy and procedure. The first of any allegations was on receipt of this application and expanded upon in the submissions for arbitration, but nevertheless vague and without supporting evidence. I do consider the application unwarranted and a waste of resources of the Respondent and the named persons to defend vague and unsupported allegations.

• [76] While Mr Hamid was aggrieved by the requirement to perform duties outside his comfort, or those he considered beneath him, did not justify this application. A more reasonable and sensible approach would have been to take on board the generous support, guidance and training offered to develop his skills to perform the role that he was employed to do to the reasonable standard required. Despite Mr Hamid's grievances the role of the Commission is to take an objective position on the evidence before it when required to determine matters in arbitration. Having taken all matters into consideration I do not find Mr Hamid was bullied. In so far as the allegations made there is no evidence of repeated unreasonable behaviour by an individual or group of individuals that creates a risk to health and safety. Further there is no risk of bullying and therefore no orders can be made. Consequently, Mr Hamid's application must be dismissed.

• [77] The legislation permits the Commission to dismiss applications in certain circumstances. Relevantly, s.587 provides:

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(c) the application has no reasonable prospects of success.

• [78] Section 587 relevantly provides that the Commission may dismiss an application where there is no reasonable prospect of success. I do so find, and I may dismiss a matter on my own initiative.

• [79] For the reasons outlined above I have decided to dismiss Mr Hamid's application on the basis that the application has no reasonable prospects of success.

[2] Mr Hamid's Witness Statement filed 26 August 2024.

[3] Witness Questions from Mr Hamid emailed on 17 October 2024.

[4] Applicant's Outline of Submissions, [1]-[2].

[19] Ibid [7],[13]. There is lack of detailed evidence of what and when such conduct occurred. This person strongly denies ever walking into Mr Hamid's personal space and found the allegation slanderous and defamatory.

[25] Respondent's Outline of Submissions [1]-[4].

[34] Fair Work Act 2009 (Cth) s.789FC(1).

[35] Ibid s.789FF(1).

[38] Ms SB [2014] FWC 2104 at [43]- [44].

[39] Explanatory Memorandum to the Fair Work Amendment Bill 2013.

[40] Fair Work Act 2009 (Cth) s.789FD(2).

[41] Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16; (2004) 135 FCR 105 at [79].

[42] This witness was employed for the whole of Mr Hamid's employment until her departure in June 2024 (after Mr Hamid ceased working).

[43] Witness Statement of the HPC, Annexures CH1 - CH3.

[44] Witness Statement of first named person, Annexures MR1-MR20

[48] The first named person tendered into evidence the business development role advertised and applied for by Mr Hamid. See ibid Annexure MR5.

[49] Witness Statement of the second named person, Annexure GM4.

[51] Applicant's Outline of Submissions, [9]

[52] Witness Statement of Procurement Specialist 1.

[53] Witness Statement of Manufacturing Engineer 1; Witness Statement of Manufacturing Engineer 2.

[54] Witness Statement of Senior Payroll Specialist.

[55] Witness Statement of Systems Engineer II, [20].

[56] Witness Statement of the HR Manager, [7]-[12].

[57] Witness Statement of first named person, [15].

[59] Witness Statement of Systems Engineer II, [23].

[60] Witness Statement of the HR Manager, [13]-[16].

[62]Witness Statement of Procurement Specialist II.

[63] Witness Statement of first named person, [30].

[64] Witness Statement of second named person, Annexure GM1, Annexure GM2.

[65] Witness Statement of Manufacturing Engineer 1; Witness Statement of Manufacturing Engineer 2.

[66] Witness Statement of Head of Procurement and Supply Chain.

[68] Witness Statement of first named person, Annexures MR6, Annexure MR7.

[69] Ibid, Annexure MR8, Annexure MR9, Annexure MR10, Annexure MR11.

[71] Ibid, Annexure MR18, meeting of 12 April 2024.

[72] Witness Statement of first named person, [43] - [44], Annexure MR19, Annexure MR20.

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