Fair Work Act 2009

s.739 - Application to deal with a dispute

Re-determination following appeal decision [2025] FWCFB 94 - whether conduct found to have occurred constitutes serious misconduct.

• [1] On 23 August 2024, I issued a decision to dismiss an application by Mr Mark Frost (the Applicant) under s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute under the dispute resolution procedure contained in clause 11 of the Ambulance Victoria Enterprise Agreement 2020 (the Agreement). The Respondent is Ambulance Victoria (AV), the Applicant's employer who is covered by the Agreement.

• [2] Mr Frost lodged an appeal to this decision on several grounds and was granted leave to appeal.

• [3] In its decision, Frost v Ambulance Victoria [2025] FWCFB 94, the Full Bench found I erred in the decision to dismiss Mr Frost's application. The errors identified by the Full Bench were as follows:

"[22] The first ground of appeal must be upheld. In our opinion, the Commissioner made an error of law by equating bullying conduct with serious misconduct...

[27] In our opinion, the second ground of appeal must also be upheld. The Commissioner proceeded on the basis that Mr Lacy had concluded that Mr Frost's behaviour amounted to serious misconduct. This is incorrect...Mr Lacy found that Mr Frost's behaviour had constituted bullying."

• [4] Aptly, the Full Bench's decision also made the following notable remarks:

"[22] ...the Commissioner considered the bullying conduct to be serious misconduct. This was a finding the Commissioner was required to make. But the Commissioner's approach to making this finding was in error because he equated bullying with serious misconduct.

[24] ...it is clear that bullying and serious misconduct are two entirely distinct concepts for the purposes of the Agreement, as indeed they are generally, even if their application to fact in some cases might overlap.

[26] For conduct to amount to bullying under the FW Act, it is sufficient that a person has behaved unreasonably at work on two occasions towards another, and that this has caused a risk to health and safety. That such conduct has occurred does not of itself say anything about the seriousness of the conduct. Plainly, the gravity of conduct that can fall within the definition of bullying in the FW Act can be charted on a wide spectrum. Some such conduct is very serious. Some is not."

• [5] The Full Bench dismissed the remaining grounds of appeal and determined to remit the application for redetermination. The Full Bench made clear at [28] the task I need to undertake is to determine "whether the conduct that Mr Lacy found to have occurred constitutes serious misconduct" noting my benefit in having heard the evidence of five witness who were called in the proceedings in the first instance.

• [6] On reallocation to my Chambers, I directed the parties to discuss programming the re-determination. Parties agreed on a timetable for submissions and material to be provided.

• [7] I have considered all the material and submissions in this matter, and my re-determination of Mr Frost's application is set out below.

• [8] I have set out above the relevant findings of the Full Bench. What is clear from these findings is that that the question I am required to engage with is whether the conduct Mr Lacy found Mr Frost to have engaged in constitutes serious misconduct within the meaning of Agreement. If I am not satisfied this is the case, it is not open for AV to transfer Mr Frost from his workplace in Bright under the terms of clause 74.6(f)(iv) of the Agreement.

• [9] Clause 74.6(f)(iv) of the Agreement, provides as follows:

"(f) Restorative Practices (may include but not limited to):

(i) Transfer in the case of serious misconduct related to conduct that meets the definition of workplace bullying or harassment pursuant to the Act and Equal Opportunity Act 2010 (Vic);"

• [10] The Full Bench identified at [24] the "Act" means the FW Act s.789FC of which states that a worker is "bullied at work' if, while the worker is at work in a constitutionally covered business, an individual or group "repeatedly behaves unreasonable towards the worker... and that behaviour creates a risk to health and safety." Serious misconduct is not directly defined, however, clause 74.1 of the Agreement states that 'misconduct' has the same meaning as provided for in AV's Misconduct Policy, which in turn defines serious misconduct in similar terms to those in the Fair Work Regulations. This is the meaning of serious misconduct for the purposes of the Agreement.

• [11] At 1.2 of AV's Misconduct Policy[1] defines serious misconduct as follows:

"Serious misconduct as defined in the Fair Work Regulations is a conduct that is:

• Wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contact of employment;

• Conduct that causes serious and imminent risk to:
• The health or safety of a person; or
• The reputation, viability or profitability of the employers business.

Serious misconduct includes, but is not limited to, the employee, in the course of the employee's employment, engaging in:

• Theft; or
• Fraud; or
• Assault; or
• Breach of AV's Alcohol and Other Drug Policy and/or Procedure; or
• A refusal to carry out a lawful and reasonable direction that is consistent with the employees' contract of employment."

What is the conduct Mr Frost is alleged to have engaged in?

• [12] The first allegation against Mr Frost is that he contravened the AV Code of Conduct, AV Professional Conduct Policy and the Code of Conduct for the Victorian Public Sector Employees (VPS Code of Conduct), when engaged in conduct that he:

• Made comments of an intimidating, aggressive, disrespectful and discourteous nature when referring to Ms Kiraly, Ms Pilven and Mr Chadban;
• Threatened to act violently towards Ms Kiraly, Ms Pilven and Mr Chadban;
• Failed to create a safe, encouraging, supporting and respectful environment that is free of harassment and bullying;
• Caused discomfort and/or offence to Ms Godden in the workplace; and/or
• Failed to address concerns of issues in a constructive way.

• [13] The particulars of this allegation arose from a conversation on or around 10 June 2021 where Mr Frost, referring to Ms Pilven and Mr Chadban, said to Ms Godden words to the effect that some AV managers "should be put up against a wall and shot."

• [14] The second allegation against Mr Frost is that he contravened the AV Code of Conduct, AV Professional Conduct Policy and the Code of Conduct for the VPS Code of Conduct when engaged in conduct that he:

• Made comments of an intimidating, aggressive, disrespectful and discourteous nature when referring to ACO's working the AV Bright Branch;
• Failed to address concerns of issues in a constructive way; and/or
• He caused discomfort and/or offence to Ms Godden in the workplace.

• [15] The particulars of this allegation arose from an email that was received by Ms Godden including the following phase - "Can't wait until we get the new starts operational and we can look at cutting away some dead wood."

• [16] The third allegation against Mr Frost is that he contravened the AV Code of Conduct, AV Professional Conduct Policy and the Code of Conduct for the VPS Code of Conduct when engaged in conduct that:

• Was intimidating and/or aggressive towards Ms Gibson;
• Failed to create a safe, encouraging, supportive and respectful environment that is free from harassment and bullying;
• Caused discomfort and/or offence to Ms Gibson in the workplace; and/or
• Failed to consider the impact of his behaviour on Ms Gibson.

• [17] The particulars of this allegation were that on, or around 5 July 2021, while on a period of personal leave Mr Frost placed orange packaging from a "Catch.22 Ammo Dispenser" on the desk at the Bright branch usually used by Ms Gibson or the ACO's.

• [18] The fourth allegation against Mr Frost is that he contravened the AV Code of Conduct, AV Professional Conduct Policy and the Code of Conduct for the VPS Code of Conduct when in engaged in wilful and deliberate conduct in respect of Ms Gibson that:

• Failed to treat her with courtesy, civility, respect, dignity and compassion;
• Failed to give credit to her contributions;
• Demonstrated a lack of commitment to open, honest and transparent communication that builds trust and effective relations;
• Failed to create a safe, encouraging, supportive and respectful environment that is free of harassment and bullying' and/or
• Caused discomfort, embarrassment or offence to Ms Gibson in the workplace

• [19] The particulars of this allegation were that throughout 2018 - 2021, Mr Frost did not, on the vast majority of occasions:

• Greet Ms Gibson;
• Make eye contact with Ms Gibson;
• Engage in any civil conversation with Ms Gibson
• Acknowledge or respond to any pleasantry such as "hello", "good morning" or "how are you" offered by Ms Gibson other than to grunt or grumble; or
• Thank Ms Gibson for her work

• [20] The fifth allegation against Mr Frost is that he contravened the AV Code of Conduct, AV Professional Conduct Policy and the Code of Conduct for the VPS Code of Conduct when he engaged in wilful and deliberate conduct in respect of Ms Gibson that:

• Failed to treat Ms Gibson with courtesy, civility, respect and dignity;
• Belittled Ms Gibson's contributions; and/or
• Failed to create a safe, encouraging, supportive and respectful environment that is free of discrimination, harassment and bullying.

• [21] The particulars of this allegation were that on approximately half a dozen occasions between January 2019 and May 2021, Mr Frost said in the course of conversation with Mr Nicholson, words to the effect of "Mina is never going to get a job here, it just won't work" or "Mina won't be getting a job here if I have anything to do with it."

• [22] The sixth allegation put to Mr Frost was that by engaging in some or all of the conduct in allegations 3-5, he had engaged in bullying and/or harassment of Ms Gibson in breach of his contract of employment, the AV Code of Conduct, AV Professional Conduct Policy and the Code of Conduct for the VPS Code of Conduct.

What conduct was Mr Lacy satisfied Mr Frost engaged in?

• [23] Mr Lacy conducted an independent investigation and prepared a privileged and confidential report into the above allegations against Mr Frost. His findings were as follows.

• [24] Mr Lacy noted Mr Frost denied he said his manager should be put up against the wall and shot but acknowledged making reference to them in the context of a quote he recited from Hitchhikers Guide to the Galaxy - "first against the wall when the revolution comes." He identifies Mr Frost's concession that these comments could have been taken to be intimidating, aggressive, disrespectful and discourteous, but that they were not intended to be so. Mr Lacy was satisfied that allegation was substantiated. Noting as follows:

"Frost has not denied speaking disrespectfully of others, using threatening language, and acting violently towards others. It must follow that by his conduct Frost failed to create a safe encouraging, supportive and respectful environment. In my opinion the Allegation is substantiated."[2]

• [25] Considering a series of mitigating factors, including Mr Frost's overall health, background and requests for support, Mr Lacy concluded this allegation was only substantiated in part as follows:

"I find Frost spoke disrespectfully of others, used threatening language, threatened to act violently towards others, caused discomfort to Godden and failed to create a safe, encouraging, supportive and respectful environment."[3]

• [26] Mr Lacy was also satisfied this allegation was substantiated in part. His findings were that Mr Frost did not intend to disrespect Ms Godden or the ACOs but he caused discomfort to Ms Godden either by wrongly assuming a familiarity in his business dealings with her or the inappropriate way in which he referred to his staff.

• [27] Mr Lacy was not satisfied allegation three was substantiated. He found it was not clear that Mr Frost had placed the ammunition carrier retail card on Ms Gibson's desk. And further, that Mr Frost did not intend any discomfort or intimidation in disposing of the ammunition carrier retail card at the Branch.

• [28] Mr Lacy found allegation four was substantiated without qualification. In his consideration remarking -

"In responding to the Allegations, Frost prevaricated and failed to answer directly any of the specifics of the conduct in which he was alleged to have engaged. To say, as he does, that he "treats and interacts with her no differently than how he treats anybody else" is not a denial of the specific conduct. The evidence of Godden and Gibson to the effect that he is generally "rude", has "always been like that" and "does not respect women very much" suggests that Frost may treat everybody the same. That is not an excuse for his conduct or behaviour, but rather an indication of a person who is simply socially inept."[4]

"Frost has failed to treat Gibson with courtesy, civility, respect, dignity and compassion, demonstrate a lack of commitment to open, honest and transparent communication that builds trust and effective relations, failed to create a safe, encouraging, supportive and respectful environment that is free of harassment and bullying, caused discomfort, embarrassment or offence to Gibson in the workplace."[5]

• [30] Mr Lacy found allegation five to be substantiated without qualification. In his consideration, he remarked as follows:

"Frost does not deny saying Gibson "won't be getting a job here if I have anything to do with it". He doesn't deny telling Graham that he doesn't want Gibson working in Bright. What he does say about Gibson in his discussion with Nicholson is scandalous and unwarranted in the context in which it was said. Clearly, in the period 2019-2021, Frost has failed to threat Gibson with courtesy, civility, respect and dignity, belittled her contributions and failed to create a safe, encouraging, supportive and respectful environment that is free of discrimination, harassment and bullying."[6]

• [31] Mr Lacy reflected on these findings, suggesting consideration needs to be given to Mr Frost's plea in mitigation and appropriate remediation steps that may need to be taken to assist him in dealing with this stress and mental health. His conclusion remained that:

"...his plea does not explain or excuse his conduct or the sentiments he has expressed about Gibson. His treatment of and about Gibson preceded the events of 2019 in any event."[7]

• [32] Mr Lacy was satisfied allegation 6 was also substantiated without qualification. His consideration was as follows:

"As to Allegation 4, I have concluded that Frost is generally "rude", has "always been like that" and "does not respect women very much" and the fact that he treats everybody in the same way he treats Gibson does not excuse his conduct or behaviour, but rather is an indication of a person who is simply socially inept. I determined that Frost frequently ignores Gibson's greetings, does not engage in conversation with her or acknowledge her work or exchange pleasantries with her. In my opinion such behaviour is unreasonable and creates a risk to health and safety.

In respect of Allegation 5, I am satisfied that in the period 2019 to 2021, Frost has failed to treat Gibson with courtesy, civility, respect and dignity, belittled her contributions and failed to create a safe, encouraging, supportive and respectful environment that is free of discrimination, harassment and bullying. I find this is bullying behaviour as defined.

I reject Frost's denial. Having regard to the evidence and my findings in respect of Allegations 4 and 5, I am satisfied that Frost has engaged in bullying and/or harassment of Gibson in the course of the period 2018 to 2019."[8]

• [33] Mr Lacy summarised the totality of his findings as follows:[9]

• VPS Code of Conduct, paragraph 7.2: Allegations 1, 4, 5 and 6 - Failed to create a safe, encouraging and supportive work environment that recognises and values abilities and contributions of his managers Kiraly, Pilven, Chadban and his staff Gibson; belittled Gibson's contributions.

• AV Code of Conduct, paragraph 3.1: Allegation 1 - spoke disrespectfully of others, used threatening language; AV Code 4.2 - Allegations 1, 2 and 4 - caused discomfort and/or offence to Godden and Gibson; AV Code of Conduct 3.1 and 4.2 -Allegations 4 and 5 - failed to treat Gibson with courtesy, civility, respect, dignity and compassion;

• AV Code of Conduct, paragraph 3.4 - Allegation 2 - failed to address his concerns about rostering and ACOs in a constructive way; Allegation 4 - demonstrated a lack of commitment to open, honest and transparent communication in relation to Gibson.

• AV Professional Conduct Policy 6.3: Allegation 1 - threatened to act violently towards others; Allegations 4, 5 and 6 - engaged in bullying and/or harassment of Gibson in the course of the period between 2018 and 2019.

• [34] Mr Frost identifies the Commission's determination is required to engage with the conduct Mr Lacy identified with respect to Allegations 4, 5 and 6 as set out above. That the question the Commissions is required to determine, consistent with the terms of the Agreement, is whether this conduct was either (or both) wilful or deliberate behaviour that was inconsistent with the continuation of his contract of employment; or conduct that caused serious and imminent risk to the health and safety of a person, or the reputation, viability or profitability of the employer's business.

• [35] His position is that the answer to this question is no. And that the Commission should find that the decision to transfer Mr Frost was inconsistent with the Agreement and, therefore, unjust.

• [36] The basis of this submission includes Mr Frost's contention his conduct was not wilful or deliberate. Supporting this position, he identifies several authorities, including Mourilyan v James Hardie Australia Pty Ltd (Mourilyan),[10] where Vice President Asbury (Commissioner as she was then) makes clear that "wilful misconduct carries the additional connotation of intention, or deliberately reckless course of conduct, with knowledge that it is wrong".[11]

• [37] Mr Frost identifies Mr Lacy made no comment or conclusion that he acted wilfully or deliberately. Rather, identifying Mr Frost as someone who is simply "socially inept", arguing that if his actions were due to his social ineptitude, it cannot be said he acted towards Ms Gibson with knowledge his actions were wrong, or that he deliberately acted contrary to the requirements of his employment. Further identifying, Mr Frost's mental health issues and stress as factors that should be considered in concluding his actions were not wilful or deliberate.

• [38] Mr Frost also submits it is not reasonable to conclude his conduct was inconsistent with the continuation of his contract of employment. He argues it is not sufficient that his behaviour be inconsistent with the contract of employment but must be inconsistent with its continuation. And further, that this should be construed with behaviour that was so serious the appropriate outcome was the immediate cessation of employment.

• [39] Mr Frost submits the evidence in this case does not support this conclusion. He identifies Mr Lacy does not make any conclusion addressing these issues. Rather, recommending consideration be given to appropriate remediation to assist Mr Frost dealing with his stress and mental health. Suggesting, it is reasonable to infer from this recommendation Mr Lacy believed Mr Frost would continue in his contract of employment, and his conduct was not so serious as to be inconsistent with this being the case.

• [40] Furthermore, that AV's response to Mr Lacy's report was not a proposal to terminate Mr Frost's employment but to see it continue, including initially, in Bright.

• [41] Mr Frost does not agree with Mr Lacy's findings but accepts Mr Lacy found he engaged in behaviour that constituted bullying and misconduct. He submits his conduct falls at a lower end of the misconduct spectrum. That it was not behaviour inconsistent with the continuation of his contract of employment.

• [42] There being no contention Mr Frost's conduct caused a serious or imminent risk to the reputation, viability, or profitability of the employer's business, Mr Frost submits the Commission's consideration is limited to whether Mr Frost's conduct caused a serious and imminent risk to the health or safety of a person.

• [43] In this regard, he argues the Commission must assess what was the risk caused by the relevant conduct and was that risk serious and imminent.

• [44] Mr Frost submits that Mr Lacy found the conduct he engaged in caused a risk to health and safety in that it caused "discomfort, embarrassment or offence' to Ms Gibson and caused her to feel anxiety over the period 2018-2021. Noting, Ms Gibson voluntarily worked and sought to work at Bright over this period in full knowledge she would be working with and reporting to Mr Frost. And further, that Mr Lacy found Mr Frost did not intend any discomfort or intimidation towards Ms Gibson in disposing of the ammunition retail card at the Branch. Concluding, it is not reasonable to attribute Ms Gibson's panic attack on 6 July 2021 or her fears about Mr Frost having an extreme reaction to her complaint about the conduct Mr Lacy found Mr Frost engaged in.

• [45] Considering whether Mr Frost's conduct caused a serious and imminent risk to Ms Gibson's health and safety, he argues the Commission should conclude the risk was not both serious and imminent on several grounds. Amongst others, these include that the conduct found was the low end of seriousness; it occurred over a long period, indicating it was not imminent; Ms Gibson continued to work and volunteer to work alongside Mr Frost; and that AV did not do anything to address Mr Frost's behaviour despite being aware of Ms Gibsons concerns.

• [46] On the above basis, Mr Frost submits the Commission should find that the conduct was not "serious misconduct".

• [47] AV's position is that the conduct Mr Lacy substantiated Mr Frost engaged in was both bullying and serious misconduct. They submit Mr Frost's behaviour towards Ms Gibson was conduct that presented serious imminent risk to the health and safety of Ms Gibson or was inconsistent with the continuation of the employment relationship. That Ms Gibson's evidence of the impact off the bullying of Mr Frost on her was unchallenged. And that the evidence of Ms Gibson was that the bullying she was subjected to by Mr Frost caused her psychological damage that necessitated psychological care.[12]

• [48] The Respondent's position is this conduct falls squarely within the examples of serious misconduct provided for by AV's Misconduct Policy and the FW Regulations. That the bullying conduct of Mr Frost, when objectively assessed, amounts to serious misconduct. And that based on this finding, it was open to AV to impose a transfer in accordance with clause 74.6(f)(iv) of the Agreement.

• [49] There is no contest what I am required to determine is whether the conduct Mr Frost engaged in, that was substantiated as bullying by Mr Lacy, amounted to serious misconduct. In this regard, both the Applicant and the Respondent refer to the consideration of regulation 1.07 and the concept of serious misconduct by Vice President Asbury (Commissioner as she was then) in Mourilyan. In that decision the Vice President identifies:

"[90] Misconduct is wrongful conduct. To be properly described as "serious", misconduct must be: "significantly worse than negligence and serious in its culpable quality as misconduct, as distinct from the results". Serious misconduct is judged on an objective basis, and it is therefore not necessary that the employee should intend to do wrong. If the employee knows of a specific relevant risk there may be misconduct depending on its seriousness. If the employee does not know of a specific relevant risk, then the negative element of misconduct requires a disregard or recklessness of possible risk. Wilful misconduct carries the additional connotation of intention, or a deliberately reckless course of misconduct, with knowledge that it is wrong.

[91] Regulation 1.07 does not require that misconduct be wilful before it is serious misconduct, but provides that serious misconduct includes wilful or deliberate behaviour."

• [50] AV argues that by virtue of the uncontested evidence of the impact of the substantiated bullying conduct by Mr Frost on Ms Gibson, the Commission can be satisfied, that objectively viewed, Mr Frost's conduct posed a serious imminent risk to her health and safety.

• [51] I reject this submission. As the Vice President makes clear above, serious misconduct must be judged on an objective basis considering "serious" in its culpable quality as misconduct, distinct from its result. It is not in contest that Ms Gibson experienced "psychological damage" and sought "psychological care".[13] What is contested is the extent it is reasonable to conclude this impact was caused by the substantiated conduct of Mr Frost or some other causes, including Ms Gibson's belief Mr Frost intentionally left the Catch .22 Ammo Dispenser Card on her desk that Mr Lacy found was not substantiated.[14]

• [52] As the Applicant submits, what is required is an objective assessment of the substantiated conduct of Mr Frost against the definition of serious misconduct provided for by the Agreement. I have set out these requirements above. To be serious misconduct, I must be satisfied that the substantiated conduct of Mr Frost was either "wilful or deliberate" conduct that was inconsistent with the continuation of the employment relationship; or conduct that caused a serious and imminent risk to the health and safety of a person (Ms Gibson).

Was Mr Frost's bullying conduct wilful or deliberate conduct?

• [54] Mr Frost submits Mr Lacy made no finding his bullying conduct was wilful or deliberate. But rather, that his conduct can be explained by his social ineptitude and mental health issues, stress and lack of ongoing professional development.

• [55] I do not accept this submission. Allegations 4 and 5 were framed as allegations Mr Frost acted "wilful and deliberately" in engaging in the alleged conduct. Both allegations were found by Mr Lacy to be substantiated in full, without qualification.

• [56] I accept Mr Lacy did not explicitly reference Mr Frost acting "wilfully or deliberately" in his findings. And further, that he referred to Mr Frost's social ineptitude and the need to considering mitigating factors including his mental health and stress.

• [57] Mr Lacy remained satisfied Mr Frost had engaged in the conduct as alleged. His report makes it explicitly clear that neither Mr Frost's "social ineptitude" or other mitigating factors explain or excuse his conduct, behaviour, or the sentiments he expressed. These without qualification findings stand in contrast to the conclusion Mr Lacy reached in relation to allegations 1 and 2 where he qualified his findings as "substantiated in part."

• [58] On this basis, I am satisfied the bullying conduct Mr Lacy concluded Mr Frost engaged in was 'wilful' and/or 'deliberate'.

• [59] In reaching this conclusion I have considered the contentions advanced by Mr Frost, including that he could not have acted with intention, or engage in a deliberately reckless course of conduct, with knowledge that it is wrong, because he was just socially inept. This conclusion is not supported by the evidence. Ms Gibson made Mr Frost explicitly aware of her concerns about his communication and management style towards her and its impact. In reverting to conduct that he had been made aware was of concern, I am satisfied Mr Frost acted with deliberate and reckless disregard to the impact of his conduct on Ms Gibson, with knowledge it was wrong.

Was Mr Frost's conduct inconsistent with the continuation of the employment relationship?

• [60] Mr Frost argues it is not reasonable to conclude his conduct was inconsistent with the continuation of the employment relationship. That for this to be the case the Commission needs to be satisfied, objectively viewed, his conduct was so serious the appropriate outcome was an immediate cessation of employment. Furthermore, that both Mr Lacy's report and AV's response to it in not taking steps to bring his employment to an end support this conclusion.

• [61] I have considered these submissions.

• [62] Ultimately, as the Full Bench identified, the determination of this question will turn on an assessment of the "seriousness" of Mr Frost's misconduct. Mr Frost submits Mr Lacy's findings are that his conduct is at the low end of the misconduct spectrum.

• [63] Mr Lacy's findings of the conduct Mr Frost engaged in towards Ms Gibson can be aptly summarised as he was satisfied Mr Frost was generally rude, discourteous, uncivil, took issue with and had an unwarranted objection to her.

• [64] As Mr Lacy's report identifies, the context within which the misconduct occurred is critical - "the context in which words are used gives them colour and meaning".[15]

• [65] For the relevant period between 2018 and 2021, Mr Frost held the position of ALS Paramedic and Team Manager for the Respondent at its Bright Branch. As Team Manager, Mr Frost was in a leadership position in the branch. He had completed AV's leadership course in 2016 and worked from the Respondent since 2009.

• [66] Ms Gibson was an ALS Paramedic based at Myrtleford. She did relief work at Bright under Mr Frost's supervision.

• [67] The AV Branch in Bright is a very small branch in regional Victoria. The Branch Office is based in local house and consists of a small room with two desks in it, with space for two people to sit together back-to-back. The Branch is staffed by ALS Paramedics, of which Mr Frost is the Team Manager and community volunteers (ACO's).

• [68] Mr Frost lives near to the AV Branch Office in Bright.

• [69] Ms Gibson gave compelling and persuasive evidence to the Commission of her experiences working with Mr Frost during the relevant period. Her evidence was unchallenged in proceedings. Relevantly, it included that:

"[28] Mark is not an approachable person, colleague or manager. He is not comfortable with people straight away and is not warm or welcoming. I describe him as aloof. He can be odd and quite rude and can come across as quite arrogant. He says that he is "Frosty by name and frosty by nature". He jokes about it, but he actually is frosty, and it is not funny. It is totally against the Ambulance Victoria values of care and respect. You can't be frosty and own it and be proud of it as an Ambulance Victoria employee and particularly as a manager.

[41] On Wednesday 8 November 2017, I attended a very difficult job...

[43] When I returned to the Branch Mark was there...As a manger, I would have expected that when I came in, he would have said something like, "you've had a long week, are you ok?

[44] Instead, Mark started to pick apart my case sheet from another job that I had done earlier in the week...I was flustered and put on the spot...It was humiliating.

[45] I remember going home and crying in the shower and doubting myself.

[54] Mark would rarely greet me or even make eye contact with me. He would never greet me unless I greeted him first, and then he would respond with a grunt or ignore me.

[57] I continued to feel micromanaged by Mark, including that he would continue to come into the branch at least once a day on his leave or days off. When Mark and I were in the branch together, we sat very close together when both working on our computers. Mark would log into his computer and be noticeably grumpy, often striking the keys on his keyboard loudly and with unnecessary force. His anger would be palpable in the room..(sic) This would make me feel anxious and on-edge.

[59] Another example is when Mark made an issue out of me wearing a non-Ambulance Victoria issued beanie and the branch even though he would wear his own pants to work and not Ambulance Victoria uniform. I felt like he had double standards and would pick on me about things for the sake on (sic) picking on me.

[60] Mark would also belittle me by doing things like asking me to file documents for him instead of filing them himself. I recall once he asked me to do his filing in front of others.

[66] I did not feel safe for a long time to report Mark's behaviour to Ambulance Victoria because I believed that more senior people in the organisation already knew what he was like, and nothing had been done about it. I did get to the point of nearly quitting. I felt anxious and unvalued whenever I worked in Bright, and I would cry about it. I remember thinking that the risk to my mental health was not worth it...

[67] In the time between my letter to Mark in 2017 and my making a formal complaint about him in 2020, there were a multitude of instances of hostility to me causing mental stress. I didn't document those incidents in written form...There were many times I felt alone and helpless.

[76] When I returned to the branch office in the afternoon, I found a piece of bright orange cardboard on my desk with pictures of bullets on it. The card said, 'Catch .22 Ammo Dispenser" ...

[78] The next day in the branch office I noticed there was some rubbish in the bin that had Mark Frost's home address on it...I thought that Mark must have come into the office and day before...and left the ammunition holder packaging on my desk. I thought he was sending me a message...

[86] I have had anxiety related to working with Mark in Bright since 2017 and see a psychologist for that anxiety...

• [70] My assessment of this evidence is that Ms Gibson's sense of anxiety, unease, discomfort, and humiliation was caused by the conduct of Mr Frost and her interactions with him. This conduct occurred in the relevant period to Mr Lacy's finding Mr Frost's conduct amounted to bullying and unreasonable behaviour, creating a risk to health and safety.

• [71] In reaching this conclusion, I have considered the responses Mr Frost provided to Mr Lacy and his evidence before the Commission that conflicts with that of Ms Gibson. I find the evidence of Ms Gibson presents a more accurate reflection of what in fact occurred than that of Mr Frost.

• [72] Mr Frost had completed AV's Leading Operations Fundamentals training in 2016. I accept his evidence of not receiving further training, performance reviews and subsequent answered requests for support. While a relevant consideration with respect to mitigation and mediation, these factors do not excuse his conduct.

• [73] As Ms Gibson's team manager while she was working in Bright, Mr Frost had a responsibility to treat her with respect and provide her with a safe place to work. He failed to do so because of the conduct he engaged in. As her responsible manager, Mr Frost knew, or ought to have known, he had an obligation to treat and interact with Ms Gibson with care, professionalism, and respect.

• [74] In not doing so he acted contrary to his obligations under his contract of employment. Mr Lacy's findings make this clear. With respect to the allegations 4, 5 and 6 related to bullying conduct, Mr Lacy's conclusions are replicated in paragraph [33] of this decision above.

• [75] I am satisfied such conduct was inconsistent with a continuation of his employment. I find this to be the case.

• [76] Mr Frost accepts that towards the end of 2017, Ms Gibson made him directly aware of her concerns with how he communicated with her, his management style and its impact on her. Ms Gibson accepted Mr Frost apologised to her for being wrong about a clinical issue, but not for humiliating her. Her evidence is that after she gave Mr Frost her letter outlining her concerns things improved slightly. But that when she returned to Bright after a few months away it was back to being the same as it had been before, with "...Mark ignoring me or grunting at me and not having any conversations with me other than to micromanage my work".[16]

• [77] Mr Frost does not accept his conduct towards Ms Gibson amounted to bullying.[17] He argues the bullying conduct Mr Lacy found he engaged in was at the lower end of the spectrum and does not amount to serious misconduct.

• [78] The Full Bench made clear that bullying, like all forms of misconduct, must be assessed as to its overall seriousness on the spectrum of misconduct. Further clarifying a requirement for the Commission to make an objective assessment of the seriousness of Mr Frost's conduct having had the opportunity to examine the evidence presented.

• [79] On one view, favoured by Mr Frost, the conduct Mr Lacy found he engaged in may present as low-level misconduct. In context, however, Mr Frost was Ms Gibson's manager. He had received leadership training. Ms Gibson made him aware of her concerns. They worked in a confined space, largely without other supervision, in an isolated town in regional Victoria. This is the context within which Mr Frost's conduct must be assessed.

• [80] It was in this context that Ms Gibson's compelling and unchallenged evidence to the Commission was that Mr Frost belittled, humiliated and bullied her. I am satisfied such conduct, in context, amounts to serious misconduct as defined.

• [81] In reaching this conclusion, I have considered the remarks Mr Lacy made in his report about remediation and the fact that AV did not dismiss Mr Frost on its receipt of his report. While these factors are relevant to the consequences of Mr Frost's conduct, they do not assist in assessing whether the conduct in fact occurred or its level of seriousness.

• [82] I have also considered Mr Lacy's reference of Mr Frost's social ineptitude. I do not consider this provides any basis to excuse his conduct or behaviour towards Mr Gibson.

• [83] I have also assessed the evidence Mr Frost provided to the Commission and prefer the evidence of Ms Gibson about their interactions during the relevant period.

• [84] The evidence Mr Frost presented to Mr Lacy and the Commission also appears to conflict in relation to allegation 3. In his response to Mr Lacy's investigation, he indicated he was on a period of personal and annual leave between June and August 2021. In his explanation to Mr Lacy on how the packaging to for his Catch .22 ammunition dispenser came to be in the Bright Branch and on Ms Gibson's desk, Mr Frost claimed he travelled away from home during this period and had asked a colleague to monitor his house and collect his mail.

• [85] In proceedings, Mr Frost accepted the conversation with respect to Allegation 1 took place, on or around 10 June 2021. Following this incident he did not work the following 3 days and attended his GP on Monday, 14 June 2021. In his response to Mr Lacy saying further:[18]

"When I explained my symptoms to my doctor, including the incident where I recorded my blood pressure, my doctor advised me that I needed to take a period of personal leave to recover. My doctor told me I needed to take a minimum period of 28 days sick leave and gave me a medical certificate. My doctor also prescribed me antihypertensive medication, increased the dose of my anxiety medication and organised for me to attend psychological counselling. After those 28 days I was on a period of leave for a month. I still felt unwell during the annual leave and spent most of the time confined to my house because of my poor mental health."

• [86] Mr Frost's evidence is that from the 14th of June 2021 he had 28 days sick leave and then a period of annual leave into August 2021. During this period, his evidence to the Commission was that he was so unwell because of the above symptoms he spent most of his time confined to his house in Bright.[19]

• [87] Mr Frost told Mr Lacy that on the 5th of July he went into the Branch and just opened his mail, took the ammunition dispenser out of the packaging and threw the packaging in the bin.[20]

• [88] When pressed as to why, when he was on sick leave at home, he asked his colleague to collect his mail, Mr Frost's explanation was that he was away from Bright. When asked why his colleague decided to return his mail to the branch rather than his home nearby, Mr Frost's unpersuasive response was that he just thought his colleague had picked up the mail and left it at the Branch.

• [89] It is difficult to reconcile these competing facts that Mr Frost was so unwell in the 28-days following the 14th of June yet still well enough to spend a week away from Bright on a farm and well enough to go into the Branch on the 5th of July to collect and open his mail.

• [90] In his response to Mr Lacy explaining his conduct on 20 June 2021 and the email, he accepts he went into the Branch to send, making reference to "cutting away dead wood" relevant to allegation 2, Mr Frost submitted:[21]

"On June 2021 I was on a day off but I attended branch to enquire with staff as to their availability so that I could complete the roster. I was frustrated that I needed to go into the branch on my day off to organise the roster... I was in a very poor frame of mind... I had to leave my partner... I was upset that I had to interrupt the valuable and limited time I had with my partner and the language used reflects this."

• [91] In his response to Mr Lacy explaining the language he admits he used with respect to allegation 1 on 10th June, Mr Frost submitted:[22]

"I felt unwell on the DATE of the comment and considering taking sick leave... On that date I was experience blood pressure pounding in my ears, feeling on edge, anxious and unsettled."

• [92] Mr Frost's evidence is that in the period from 10th of June to after 5th July, he was both;

• so unwell he was confined to his house "most to the time" because of his poor mental health and spent 28 days on sick leave, and
• well enough spend time with his partner, spend time away on a friend's farm, go into to branch on June 20th to send emails and organise rosters on a day off, and again attend the branch on the 5th of July 2021 just to open his mail.

• [93] I find this evidence inconsistent and conflicting.

• [94] When it was put to Mr Frost in proceedings that he intentionally took his mail into the Branch to cause discomfort to Ms Gibson, Mr Frost denied this being the case. He went on to deny that this was consistent with his pattern of bullying of Ms Gibson over a long period of time and made it clear, despite Mr Lacy's findings, he did not accept his conduct towards Ms Gibson was bullying.[23]

• [95] My assessment of this evidence, including Mr Frost's denial in proceedings, is that his version of explaining how his personal mail came to be in the Branch is not persuasive. Based on this assessment, my conclusion is that it is more likely than not Mr Frost took his mail into the branch knowing it would be seen by Ms Gibson. This conduct amounts to a further instance of bullying.

• [96] In being evasive and not completely honest to Mr Lacy as part of his investigation into his conduct, Mr Frost engaged in a further instance of misconduct. Mr Lacy's investigation was plainly an investigation into allegations of serious misconduct, including bullying. Not been truthful in an investigation into allegations of bullying, is a further instance of serious misconduct related to bullying conduct, which I am satisfied Mr Frost engaged in.

• [97] I have been satisfied that the conduct Mr Lacy found Mr Frost to have engaged in was serious misconduct as defined under terms of the Agreement. Further, I am satisfied Mr Frost also engaged in bullying by taking his personal mail into the Bright branch knowing it would be seen by Ms Gibson. I have also found Mr Frost was not entirely honest in his response to Mr Lacy about allegation 3, an investigation into his bullying conduct. This dishonesty is a further instance of serious misconduct related to bullying conduct. Having been so satisfied, it is not necessary for me to consider whether Mr Frost's conduct caused a serious and imminent risk to Ms Gibson's health and safety.

• [98] For the reasons set out above, I am satisfied Mr Frost engaged in serious misconduct related to bullying conduct as defined under the Agreement. On this basis, I am satisfied AV could seek to transfer Mr Frost as an alternative to dismissal.

[1] Annexures to Witness Statement of Narelle Capp, Court Book p.454.

[2] Annexure "NC-42" to Witness Statement of Narelle Capp, DCB 574.

[10] [2010] FWA 9672 at [90].

[11] Applicant's Further Submissions filed 17 July 2025 at [16]-[17].

[12] Respondent's Outline of Submissions filed 30 July 2025 at [17].

[13] Applicant's Submissions in Reply filed 6 August 2025 at [8].

[15] Annexure "NC-42" to Witness Statement of Narelle Capp, DCB 573.

[16] Witness Statement of Hermina Gibson at [53], DCB 733.

[17] Transcript of Proceedings on 29 May 2024 at PN302-307, Witness Statement of Mark Frost at [75], DCB 29.

[18] Annexure "MF4" to Witness Statement of Mark Frost, DCB 223, Transcript PN104.

[21] Annexure "MF4" to Witness Statement of Mark Frost, DCB 225, Transcript PN131-142.

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