Ms Powell's second decision
127 Ms Powell's second decision, to terminate Mr Parsons' employment, stemmed from Ms Linnell's second complaint made on 29 November 2021. Ms Linnell's complaint was that she felt she had been bullied by Mr Parsons, which was having an adverse effect on her mental health. The explanation of the alleged bullying that Ms Linnell gave was that:
Ms Linnell had been back to the workplace for nearly 2 months and had not been invited to any "catch ups".
Ms Linnell had been the one to start communication with Mr Parsons via email when she returned from leave.
There had not been any check in to see if Ms Linnell was okay, needed anything or had any concerns, or what Mr Parsons' expectations of her in the role were for the future.
The person covering her role while she was on leave (Ms Gardam) had received more direction than Ms Linnell.
Ms Gardam was the one who had advised Ms Linnell that her contract had been extended.
Ms Linnell had received no communication from Mr Parsons to advise about what her role was in relation to Ms Gardam with whom she now shared her role.
Ms Linnell had reached out to Mr Parsons hoping to commence some kind of dialogue by thanking him for the extra support from Ms Gardam, but nothing was forthcoming.
Ms Linnell felt that she was being further victimised by being kept in the dark, not communicated with about decisions that impacted her work and being made to feel as if she was in the wrong for making the initial complaint.
128 On 1 December 2021, Mr Redhead from HR wrote to Ms Linnell saying:
In order for us to assess the matter properly can you please provide specific examples of how you are being victimised, kept in the dark and not communicated with. Where possible you should identify time, dates, locations, behaviour demonstrated and the identity of any persons who may have been present or a party to the behaviour.
129 There was no response by Ms Linnell and no follow-up by Mr Redhead or anyone else in Serco asking for the information Mr Redhead had requested. The investigation carried out by Ms Sfitskis appears to have been confined to interviewing Ms Gardam and Ms Burgess. There is no evidence that she interviewed Ms Linnell or even attempted to do so. That may be contrasted with Ms Powell's response to Ms Linnell's first complaint when she did interview Ms Linnell.
130 On the basis that Ms Linnell's concerns appear to be genuine and had a connection with Mr Parsons' conduct that led to Ms Powell's first decision, Ms Powell sent Mr Parsons a letter on 7 February 2022 alleging that Mr Parsons treated Ms Linnell less favourably following her return to work and engaged in repeated, unreasonable behaviour by, inter alia, failing to invite Ms Linnell to participate in, or excluding her from, "catch-up meetings" or similar activities to the extent that this occurred for other employees and communicating important information to Ms Linnell indirectly and through her colleagues. The letter went on to say that if the behaviour were found to have occurred, "it constitutes bullying behaviour", and may constitute, "misconduct and a breach of Serco's policies, procedures and Code of Conduct".
131 Ms Powell conducted a meeting with Mr Parsons on 8 February 2022 at which the allegations described above were put to him and he provided his responses. At the end of the meeting Ms Powell told Mr Parsons that his responses would be taken into consideration, and he would be advised of the outcome.
132 On 9 March 2022, Ms Powell wrote to Mr Parsons advising that the first allegation had been substantiated and, "constitutes victimisation, breach of the Code of Conduct and unreasonable behaviour giving rise to a risk of harm to at least one employee". The letter also indicated that the second allegation was substantiated and that the behaviours involved, "constitute bullying behaviour". Mr Parsons' employment was subsequently terminated on the basis of those findings.
133 It is necessary to determine whether the reasons given by Ms Powell in her letter of 9 March 2022 for her findings were her true reasons. That issue is centrally relevant to determining whether Serco has discharged its onus of proving that Ms Powell did not make those findings and terminate Mr Parsons' employment because he had made one or more of the complaints constituting the exercise of workplace rights.
134 On 27 October 2021, Mr Parsons had lodged a formal complaint against Ms Powell in respect of her conduct of the investigation and the outcome of Ms Linnell's first complaint. His allegations include that Ms Powell had denied him procedural fairness and that she had a conflict of interest. Serco found the complaint against Ms Powell to be unsubstantiated. Ms Powell was made aware of Mr Parsons complaint and interviewed in relation to it. She was informed of the outcome, which was that no further action would be taken.
135 In considering whether the reasons set out by Ms Powell in her letter of 9 March 2022 were her true reasons for finding Ms Linnell's allegations to be substantiated and consequently terminating Mr Parsons' employment, it is necessary to consider some important matters of context.
136 First, the allegations of "bullying" and "victimisation" were very serious. So too were the potential consequences for Mr Parsons, including termination of his employment after nearly 17 years. Any competent manager would understand that the investigation was required to be thorough and fair and required careful identification and consideration of the particular allegations made and Mr Parsons' responses to those allegations. Ms Powell impressed me as being very competent.
137 Secondly, on 7 October 2021, there had been findings that Mr Parsons' communications with Ms Linnell had been inappropriate and unprofessional and he was given a written warning requiring him to, "satisfactorily address this conduct in the future". The inappropriateness and unprofessionalism of his communications with Ms Linnell included overfamiliarity and the confiding of information that had made her feel uncomfortable. Consequent modification of Mr Parsons' behaviour towards Ms Linnell was not merely to be expected, but was expressly required by Serco.
138 Thirdly, Ms Linnell was not advised by Serco of the outcome of her complaint. The only information provided to her was in Ms Powell's letter of 11 October 2021 which stated, relevantly:
Following consideration of all the information and responses received, the review has now concluded, and the appropriate actions have been implemented by Serco. Please note that any specific outcomes regarding other employees will remain confidential.
Moving forward, I encourage you to raise and discuss any operational issues and concerns with your Manager at the earliest opportunity at the time when they occur…
Ms Linnell was not told that her complaint had been upheld and was not told that Mr Parsons had been directed to modify his behaviour towards her. At the same time, Mr Parsons had been expressly informed that, "this matter is confidential, and you are requested not to discuss it with anyone in the workplace", and that, "any breach of confidentiality by you may lead to further disciplinary action being taken". Accordingly, Mr Parsons was not permitted to inform Ms Linnell that he had been directed to change his communications with her, and Ms Linnell remained unaware of that direction. Ms Powell was clearly aware of these matters. Any reasonably competent manager in Ms Powell's position would have viewed Ms Linnell's complaints concerning changed style and frequency of communications from Mr Parsons in that context.
139 At this stage, I propose to compare Ms Powell's findings in her letter of 9 March 2022 with the responses that had been given by Mr Parsons to the allegations made by Ms Linnell in the meeting on 8 February 2022.
140 Ms Powell's letter began by setting out the first allegation, which was as follows:
1. You treated employee Catherine Linnell less favourably during the two-month period following her return to work:
a. failing to invite Catherine to participate in catch-up meetings (scheduled or otherwise) or similar activities to the extent this occurred for other employees, or at all during this time; and
b. communicating important information to Catherine indirectly through her colleagues, including but not limited to information about work requirements and her position and
that you engaged in the behaviour set out at subparagraphs a and b above on the basis of Catherine's complaint in relation to your communications with her during her period of personal/carer's leave (victimisation) and/or that you have engaged in this behaviour unreasonably, without any specific basis.
141 Ms Powell found that the first allegation was, "substantiated and constitutes victimisation, breach of the Code of Conduct and unreasonable behaviour giving rise to a risk of harm to at least one employee". It may be noted that Serco's Code of Conduct and the other policy documents referred to by Ms Powell in her letter were not tendered or otherwise adduced by Serco. It is not known whether and how those documents defined "victimisation", or another word used later in the letter, "bullying". I draw an inference that the relevant documents would not have assisted Serco's case.
142 Ms Powell's finding of "victimisation" was a finding that Mr Parsons had engaged in retribution against Ms Linnell for having made a complaint against Mr Parsons. It was a finding that Mr Parsons had deliberately engaged in a retributive course of conduct against Ms Linnell. Ms Powell's later finding of "bullying behaviour" seems to be a finding that Mr Parsons sought to harm a vulnerable employee. This was a finding that Mr Parsons had deliberately engaged in harmful conduct towards Ms Linnell.
143 Ms Powell continued:
You began your response by denying the allegations in broad terms. However, during your response to the first allegation, you acknowledged that you had not participated in catch-up meetings with Catherine....
144 Mr Parsons' responses during the meeting on 8 February 2022 are captured in Ms Sfitskis' and Mr Donohue's notes. I accept both sets of notes to be accurate, although Ms Sfitskis' are more detailed about some parts of the discussion than Mr Donohue's, and vice versa. Because they are notes and not verbatim accounts, the notes require some deciphering and, at times, require inferences to be drawn about what was actually said. I accept Mr Parsons' evidence as to his responses during the meeting.
145 During the meeting, Mr Parsons' response to the first allegation was, that it was "[c]ompletely untrue". Mr Parsons gave information in support of that response including the following:
Following Ms Linnell's return to work on 4 October 2021, Mr Parsons had been allowed to communicate with her from 7 October 2021 (because Ms Powell had directed him not to communicate with Ms Linnell until her complaint had been resolved).
Ms Linnell was included on all emails from then onwards and Mr Parsons had some telephone calls with her. Mr Parsons offered to provide the emails if necessary.
On 11 October 2021, Mr Parsons talked to Ms Linnell by telephone and they had a wide ranging discussion, including how she was feeling as she had been back at work for a week or so. He asked about what Ms Linnell wanted in the context of establishing how comfortable she would be to resume training as lots had changed since Ms Linnell had been away from the business. He asked if she required a "train the trainer" for the upcoming "B1 upskill", or if she was comfortable to run that group after her extended absence. They discussed how she had settled back with observing the two day/night inductions.
A "return-to-work plan" was not conducted as Ms Linnell was not being performance managed. By the expression, "return to work plan", Mr Parsons seemed to be referring to a specific formal process when a person returns to work after having been performance managed, rather than an informal plan after an employee returns after taking leave.
On 24 November 2021, Mr Parsons told Ms Linnell by email and telephone that she was doing a great job and they were receiving great shareholder feedback about her. Mr Parsons asked Ms Linnell if she would like to resume being his second-in-charge. She was excited, and accepted.
On 22 December 2021, Mr Parsons conducted Ms Linnell's annual review by telephone. They talked about her personal life and her feeling unsafe at work during the time when Mr Parsons was on leave. They discussed her return to work and her performance since being back. They discussed Ms Linnell's wishes and plans for her work in the future.
146 Neither Ms Linnell nor Ms Powell gave any explanation of precisely what they meant by "catch ups" or "catch up meetings". However, the assertion in Ms Powell's letter of 9 March 2022 that Mr Parsons acknowledged that he had not participated in "catch up meetings" with Ms Linnell is not borne out by the notes taken by Ms Sfitskis or Mr Donohue or Mr Parson's evidence. To the contrary, Mr Parsons gave evidence of meetings with Ms Linnell on 11 October, 24 November and 22 December 2021 at which they discussed issues such as how she was feeling at work, what work she was comfortable doing, her performance (Mr Parsons giving very favourable feedback) and what work she wanted to do in the future. These meetings answer the description of "catch up meetings". Ms Powell's statement that Mr Parsons acknowledged that he had not participated in "catch up meetings" was not based on the reality of what Mr Parsons said at the meeting on 8 February 2022.
147 It may be observed that Ms Powell made no finding that Mr Parsons had manufactured his statements about what he discussed with Ms Linnell on 11 October, 24 November and 22 December 2021. Neither was that suggested in cross-examination. Ms Linnell was not interviewed and asked about those discussions. In these circumstances, the only reasonable conclusion was that Ms Linnell's complaint of feeling bullied by not being invited to any "catch ups" by Mr Parsons was baseless. There is no reasonable basis upon which Ms Powell could have found that Ms Linnell was victimised by not being invited to "catch up meetings".
148 In her letter of 9 March 2022, Ms Powell stated that Mr Parsons had acknowledged that important information about her role was communicated to her via another employee. This was a reference to Mr Parsons not having told Ms Linnell that Ms Gardam's contract had been extended and Ms Gardam having told Ms Linnell of that matter. The context of the issue is that Ms Linnell understood that Ms Gardam was job-sharing as she had filled in for her while she was on leave, whereas Mr Parsons believed they were not job sharing but in parallel roles since Ms Gardam had been engaged before Ms Linnell went on her extended leave. Mr Parsons told Ms Powell it was not his place to tell Ms Linnell about Ms Gardam's contractual position as it would breach Ms Gardam's privacy. Although that seems to be a perfectly reasonable explanation, Ms Powell's letter treated Mr Parson's failure to tell Ms Linnell that Ms Gardam's contract had been extended as conduct that amounted to bullying of Ms Linnell.
149 Ms Powell stated that as Mr Parsons had requested on 24 November 2021 that Ms Linnell fill in for him as second-in-charge, "the suggestion that [he] could not share important information impacting both Catherine's role and overall team staffing with someone [he] would have fill-in for [him] clearly lacks credibility". However, Ms Powell's finding was made without making the rudimentary check as to when Ms Linnell was told by Ms Gardam that her contract had been renewed. Had she made the enquiry, she would have found out that Ms Gardam had given that information to Ms Linnell on 23 November 2021, the day before Mr Parsons asked Ms Linnell to be his second-in-charge. On 24 November 2021, Ms Linnell had emailed Mr Parsons saying, "Tracey mentioned yesterday that her contract had been extended. Thank you for that". There was no need for Mr Parsons to tell Ms Linnell what she already knew.
150 Further, Ms Powell gave no explanation of why and how Mr Parsons not telling Ms Linnell that Ms Gardam's contract was extended amounted to bullying when he had not asked Ms Gardam to withhold that information from Ms Linnell and it was obvious that Ms Gardam would proceed to tell Ms Linnell of that extension, as in fact happened.
151 Ms Powell stated that, "[s]imilar evidence indicates that you regularly communicate with other team members, taking into account fluctuations during busy periods, in contrast to the approach you have taken towards Catherine". However, Mr Parsons had provided evidence of regular communications with Ms Linnell by email and telephone. Ms Gardam said that her own contact with Mr Parsons had reduced since Ms Linnell resumed work. No other Learning and Development Facilitators were interviewed. Mr Parsons told Ms Powell that Ms Linnell, "is the most interacted with staff member". There was no basis for any finding that the frequency of Mr Parsons' communication with Ms Linnell was lower than the frequency of his communication with any other team member.
152 Ms Powell stated that Mr Parsons had previously indicated that he had, "ignored some of Catherine's emails and described limiting [his] conversations with her on account of [their] history". Ms Powell said these were, "comments made during an informal catch up we held on 9 December 2021". Mr Parsons' version of that conversation, which I accept, was that Ms Powell enquired whether he had spoken to Ms Linnell and he confirmed he had on numerous occasions. Mr Parsons deposes that such "comments" were never put to him in the meeting of 8 February 2022, and that evidence is consistent with the notes of Ms Sfitskis and Mr Donohue. It may also be noted that Mr Parsons "ignoring" Ms Linnell's emails was not a matter complained of by Ms Linnell. While Ms Linnell complained that she had, "reached out to Chris, hoping to commence some sort of dialogue thanking him for the extra support (when she emailed him about Tracey's contract extension), however nothing was forthcoming", Mr Parsons responded to that email 4 hours later to ask her to look after the team as his second-in-charge. In any event, it would hardly seem surprising that Mr Parsons might limit his personal interactions with Ms Linnell in light of the express instruction he had received to modify his behaviour towards her.
153 Ms Powell stated that the comments Mr Parsons made to Ms Linnell that were the subject of the previous disciplinary action included comments which tended to give her the impression that she may not be welcome upon her return to work. This aspect of Ms Powell's letter is somewhat difficult to comprehend, but she said that those comments had a "compounding effect" on Ms Linnell in the circumstances created by Mr Parsons of, "depriving her of any information about team staffing and the extension a colleague's employment whom Catherine has repeatedly referred to as 'her replacement'". However, there is no indication in the material that Ms Linnell had ever referred to Ms Gardam as "her replacement". Ms Linnell's complaint contained no such reference. There is no such indication in the notes of Ms Sfitskis' discussions with Ms Gardam and Ms Burgess.
154 Ms Powell's letter continued by saying that, "you treated Catherine differently on account of her previous complaint and have not denied that you failed to perform catch up meetings, representing at least one count of unreasonable behaviour causing a risk of harm to her". As has been discussed, that attribution to Mr Parsons of not denying that he had failed to have catch up meetings with Ms Linnell was unfounded.
155 Ms Powell repeated that Mr Parsons had, "also failed to inform her of arrangements in relation to her replacement, representing at least one count of unreasonable behaviour causing a risk of harm to her". There was simply no evidence that Ms Gardam was, or was regarded by Mr Parsons, as a "replacement" for Ms Linnell. The suggestion that Mr Parsons' failure to tell Ms Linnell that Ms Gardam's contract had been extended could create a "risk of harm" (presumably psychological harm) to Ms Linnell seems quite ludicrous, particularly when Ms Linnell had said in her complaint email that she had thanked Mr Parsons for "the extra support" (referring to Ms Gardam) and Mr Parsons had explained that Ms Linnell was happy about Ms Gardam's contract being extended. In any event, Ms Powell's evidence did not explain why Mr Parsons disclosing information about Ms Gardam's contract to another employee would not have been a breach of Ms Gardam's privacy.
156 Ms Powell's letter of 9 March 2022 then set out the second allegation, as follows:
2. You have engaged in repeated, unreasonable behaviour towards Catherine Linnell (intentionally or unintentionally) during the two-month period following her return to work, being:
a. the failure to hold return to work discussions or discuss plans and expectations upon Catherine's return to work after a 4.5-month absence;
b. actively or neglectfully excluding Catherine from catch-up meetings or similar activities (scheduled or otherwise) throughout the two-month period following her return to work; and/or
c. the communication of matters important to the team and Catherine's position indirectly, via a colleague; and
that this repeated, unreasonable behaviour has caused a risk of (or actual) harm to the health and safety of others.
If this behaviour is found to have occurred it constitutes bullying behaviour, a form of misconduct.
157 Ms Powell found the second allegation to also be substantiated and to constitute "bullying behaviour". Ms Powell stated that Mr Parsons had, "acknowledged that [he] did not hold any discussions with Catherine upon her return from a 4.5-month absence". This seems to be a reference to Ms Linnell having returned to work on 4 October 2021 but Mr Parsons not having had any discussion with her until 11 October 2021. However, Mr Parsons had provided a rational and compelling explanation for the delay in the interview. Ms Sfitskis' notes refer to Mr Parsons as referring to, "from 07 October 2021 onwards once [he] was allowed to communicate with Cathy following the previous matter". Mr Parsons explained in the meeting that Ms Powell instructed him not to contact Ms Linnell until her first complaint was resolved, and that it was not resolved until 7 October 2021, when he was issued with the warning letter. On that day (a Thursday) he arranged a meeting with Ms Linnell on 11 October 2021 (the following Monday). Ms Powell's affidavit acknowledges that she had said, "[w]hilst we are working through this complaint, my request is that you don't make contact with Cathy". Yet, Ms Powell found that Mr Parsons' compliance with her direction was a form of bullying against Ms Linnell. That finding was illogical.
158 Ms Powell's letter continued:
You stated that she was "not returning from performance management", meaning she did not require a formal return-to work meeting. However, her return after a 4.5-month absence warranted at least one discussion in relation to her wellbeing, job arrangements and to begin building the working relationship following the previous matter.
159 That finding simply ignored the information Mr Parsons had provided about the content of his discussion with Ms Linnell on 11 October 2021.
160 There are several other aspects of Ms Powell's findings that are difficult to understand. Ms Linnell had been told by Serco that, "[i]n order for us to assess the matter properly can you please provide specific examples of how you are being victimised, kept in the dark and not communicated with…", but had not provided that information. Ms Linnell had not been interviewed before Mr Parsons was interviewed. Even after Mr Parsons had provided his account of his interactions with Ms Linnell, Ms Linnell was not interviewed to obtain her responses. What was left was Ms Linnell's unspecific and broad assertions about how she felt, against Mr Parsons' efforts to answer those allegations by providing examples of interactions to demonstrate he had not victimised Ms Linnell, kept her in the dark and not communicated with her. When Ms Powell was asked in cross-examination why she did not recommend that Ms Linnell be interviewed, she answered, "I didn't feel it was needed", but was unable to explain why she felt it was not needed.
161 Ms Powell inexplicably chose to proceed to make findings that Mr Parsons had victimised and bullied Ms Linnell without even the most elemental precaution of checking with Ms Linnell whether Mr Parsons' responses were accurate and whether she maintained her complaint in view of those responses. Given the seriousness of Ms Powell's findings of victimisation and bullying and that the likely consequence of those findings would be termination of the employment of an employee of nearly 17 years' standing, it seems extraordinary that Ms Powell would not put Mr Parsons' explanations to Ms Linnell. Despite that, Ms Powell seemed at every step of her reasoning to view Mr Parsons' actions or inaction in the worst possible light.
162 Mr Parsons had told Ms Powell that he was happy with Ms Linnell's performance and, on 24 November 2021, had asked her to resume acting as his second-in-charge. Ms Powell acknowledged in her letter that, "in the same email thread of 24 November 2021, you requested Catherine to fill in for you as second-in-charge", but did not go on to consider how that request could be inconsistent with Mr Parsons retaliating against Ms Linnell or bullying her because she had made a complaint against Mr Parsons. Under cross-examination Ms Powell admitted that Mr Parsons' request, could be, "an example of positive career development or treating someone positively", but accepted that she did not factor that into her decision. That failure seems quite inexplicable if Ms Powell was genuinely considering the allegations.
163 It may be noted that Ms Powell had before her Ms Sfitskis' file notes of her discussions with Ms Gardam and Ms Burgess. Nothing Ms Gardam said could reasonably have supported Ms Powell's findings. In particular, Ms Gardam did not say that Mr Parsons had greater contact with her than with Ms Linnell since Ms Linnell's return. Further, nothing that Ms Burgess said could reasonably have supported Ms Powell's findings. Ms Burgess largely repeated Ms Linnell's reporting about how she felt she had been treated. Ms Burgess also threw in seemingly gratuitous and irrelevant personal criticisms of Mr Parsons in the context of her own dealings with him (including that he could be "sly and sneaky"). In her oral evidence, Ms Powell said she took into account all the comments, positive and negative. But Mr Parsons was not offered an opportunity to deal with Ms Burgess' criticisms, presumably because Ms Powell thought they could not influence the outcome.
164 In my opinion, the reasons expressed by Ms Powell for her findings that Mr Parsons had engaged in retaliation and bullying of Ms Linnell because she had made a complaint against him are so lacking in objectivity and plausibility as to indicate they are not genuinely her reasons for those findings.
165 I was unimpressed with Ms Powell's demeanour when giving oral evidence. At times she seemed less than frank and prevaricated. One example is that when Ms Powell was being asked about the adequacy of her conduct in failing to inform Mr Parsons until 16 September 2021 about Ms Linnell's complaint made on 25 August 2021 in respect of being contacted while she was on leave, Ms Powell was at times evasive. Another example is that when Ms Powell's attention was drawn to the allegation in her letter of 9 March 2022 that Mr Parsons had been, "communicating important information to Catherine indirectly through her colleagues, including but not limited to information about work requirements and her position", Ms Powell was asked what important information, apart from Ms Gardam's contract extension, had been communicated to Ms Linnell indirectly through her colleagues. Ms Powell struggled to answer that question directly and was ultimately unable to identify any other such information. Her evidence also demonstrated that this aspect of her letter was misleading.
166 Ms Powell's demeanour and answers under cross-examination add to my already considerable disquiet about the reasons she gave for the termination of Mr Parsons' employment. In my opinion, it is quite implausible that she could have genuinely regarded Mr Parsons' conduct towards Ms Linnell as amounting to "victimisation" and "bullying", or, in fact, any other form of misconduct.
167 Ultimately, I am not satisfied that Ms Powell's reasons for finding that the allegations were substantiated and, consequently, that Mr Parsons' employment should be terminated did not include, as a substantial and operative reason, that Mr Parsons had made a complaint about Ms Powell's investigation of Ms Linnell's first complaint.
168 Serco has not discharged its onus under s 361 of the FWA. I find that a substantial and operative reason for the termination of Mr Parsons' employment was that he had exercised his workplace right of making a complaint against Ms Powell.
169 Accordingly, I hold that Serco contravened s 340(1) of the FWA by taking adverse action against Mr Parsons by terminating his employment because he exercised a workplace right of making a complaint against Ms Powell.