Greenall v State of Queensland (Queensland Corrective Services)
[2021] ICQ 19
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- Greenall v State of Queensland (Queensland Corrective Services)[2021] ICQ 19
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Greenall v State of Queensland (Queensland Corrective Services)[2021] ICQ 19
Greenall v State of Queensland (Queensland Corrective Services)[2021] ICQ 19
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Greenall v State of Queensland (Queensland Corrective Services) & Anor [2021] ICQ 19 |
PARTIES: | DARRAN GREENALL (appellant) v STATE OF QUEENSLAND (QUEENSLAND CORRECTIVE SERVICES) (first respondent) ALAN SWANN (second respondent) |
FILE NO/S: | C/2021/18 |
PROCEEDING: | Appeal |
DELIVERED ON: | 10 December 2021 |
HEARING DATE: | 9 December 2021 |
MEMBER: | Davis J, President |
ORDER: | The appeal is dismissed |
CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – OTHER MATTERS – where the applicant applied to the Queensland Industrial Relations Commission (QIRC) for relief against bullying – where the application was dismissed – where the appellant appealed – whether the QIRC had properly construed the term “repeatedly behaves unreasonably” – whether other grounds raised errors of law Fair Work Act 2009 (Cth) |
CASES: | Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, followed Byrnes v Kendle (2011) 243 CLR 253, cited Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, followed Greenall v State of Queensland (Queensland Corrective Services) [2021] QIRC 264, related Mac v Bank of Queensland & Ors (2015) 247 IR 274, followed Norbis v Norbis (1986) 161 CLR 513, cited Re SB [2014] FWC 2104, followed SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936, followed The Queen v A2; The Queen v Magennis; The Queen v Vaziri (2019) 93 ALJR 1106, followed Welsh v Logan City Council [2021] QIRC 141, followed |
APPEARANCES: | CD Watters instructed by Workers First Industrial Advocates and Human Rights Lawyers for the appellant M Brooks instructed by Crown Law for the respondents |
- [1]
Background
- [2]The appellant, Mr Greenall, was employed by the State of Queensland in the Department of Queensland Corrective Services. He is a skilled worker holding a substantive position as a dog handler.
- [3]The second respondent, Mr Swann, is also a State Government employee working in Queensland Corrective Services. He is the Manager, Statewide Dog Squad Development and Standards.
- [4]Mr Greenall alleged that over a period of time Mr Swann bullied him.
- [5]The bullying was particularised by Mr Greenall in his application to the QIRC as 17 separate incidents. After hearing all the witnesses, the Industrial Commissioner found that there were three instances where Mr Swann had “behave[d] unreasonably towards” Mr Greenall.[3] The Industrial Commissioner was not satisfied that any of the other 14 alleged incidents constituted unreasonable behaviour towards Mr Greenall.
- [6]The first incident of unreasonable behaviour which the Industrial Commissioner found proved occurred in September 2018.[4] The findings of the Industrial Commissioner were these:
“Mr Swann’s conduct regarding an altercation between Mr Scott and Mr Hurikino
[121] The Applicant states that a further example of bullying behaviour was Mr Swann’s note in the Chronology document, that on 18 September 2018, the Applicant was involved in an altercation with two other personnel, being Mr Scott and Mr Hurikino.
[122] The Applicant submits that at first glance this would appear to be a serious performance issue, however, the facts are that the Applicant reported the altercation between Mr Scott and Mr Hurikino to Mr Swann.
[123] The Applicant states in his affidavit that Mr Swann asked him to provide a written report on the altercation. The Applicant states that Mr Swann later abused him because he claimed the Applicant did not stand up for Mr Scott.
[124] Mr Swann acknowledged in his affidavit that the Applicant had reported the altercation to him and Mr Swann subsequently asked all those involved to each provide a report. Mr Swann gave evidence that Mr Hurikino did not submit a report as requested.
[125] In the Applicant’s report, he stated he had not wanted to get involved. Mr Swann states in his affidavit that he later told the Applicant that he had expected that he would step in to stop the altercation but denies raising his voice.
[126] The Respondents submit that it was not unreasonable to expect that another staff member would step in to try to bring the altercation to a close or to voice that expectation.
[127] I accept that it was reasonable management action for Mr Swann to request a report from the Applicant given that the Applicant had witnessed the altercation between Mr Scott and Mr Hurikino.
[128] Mr Swann’s admission that he told the Applicant, as I understand it, that he had expected that the Applicant would step in to stop the altercation was unusual. The two personnel involved in the altercation were not the Applicant’s subordinates and were not answerable to him. The Applicant acted appropriately by informing Mr Swann of the incident and providing the subsequent report. Mr Swann’s expectation that the Applicant insert himself into the disagreement in order to end the altercation was not reasonable. This was particularly so given that Mr Swann did not witness the incident and so did not have a firsthand understanding of what had occurred. Mr Swann’s expectation that the Applicant step in to end such an altercation was not reasonable management action taken in a reasonable manner.” (emphasis added)
- [7]As is evident from that passage, Mr Hurikino and Mr Scott are also State Government employees employed within Queensland Corrections.
- [8]The second incident which the Industrial Commissioner found proved occurred in February 2019. The findings in relation to that incident were as follows:
“Mr Swann’s conduct toward the Applicant during the debrief of the dog bite by CSD Ox on Mr Fox
[88] The Applicant submits that Mr Swann returned to the Dog Training Unit at the Academy after taking Mr Fox to hospital and conducted a debrief on the incident, during which he stood over the Applicant, who was seated, pointed his finger toward his chest and berated him over the incident, as if it were the Applicant’s fault. The Applicant submits that this is corroborated by several other witnesses, including some who made a complaint about Mr Swann’s conduct to Mr Butler. The Applicant states that he made a formal complaint to Mr Butler about the alleged conduct of Mr Swann during the debrief.
[89] In Mr Swann’s affidavit, his evidence is that the Applicant was ‘panicked and in a heightened state’ after Mr Fox was bitten. In cross-examination, Mr Swann maintained that the Applicant was emotional after the bite took place.
[90] Mr Swann’s affidavit describes the course participants as gathering in the dog squad room to debrief before he addressed everyone and reminded them that in such situations as the one just experienced with the dog bite, they should remain mechanical and not emotional. Mr Swann noted that the Applicant was in a heightened state, however, denies the address was targeted at the Applicant and denies standing over him or making him the focus of the debrief.
[91] In cross-examination, the Applicant stated that he did not panic but rather was motivated by a duty of care towards Mr Fox.
[92] Mr Hageman gave evidence that he witnessed the Applicant getting a ‘dressing down’ by Mr Swann during the debrief, and in his statement to the Applicant stated that Mr Swann spoke down to the Applicant in an elevated voice in an unprofessional manner, making himself and the other course participants feel very uncomfortable.
[93] In his affidavit, Mr Hurikino stated that Mr Swann stood over the Applicant and addressed him in a raised tone with his finger pointed at the Applicant. Mr Hurikino gave evidence that he felt the debrief should have been done in private, away from the course participants. In re-examination, Mr Hurikino stated that the Applicant was ‘probably excited by it all, emotional, because he was the handler to the instructor, that was working the dog and his priority concern was the handler’.
[94] Mr Butler stated in his affidavit that the Applicant complained to him about Mr Swann’s debrief following the CSD Ox incident, following which he interviewed the four witnesses identified by the Applicant. These witnesses were Mr Hurikino, Mr Hageman, Mr Morris and Mick Ciccolini.
[95] Mr Butler gave evidence that he took contemporaneous notes of his meeting with the dog handlers involved. The Applicant submits that Mr Butler’s evidence under cross-examination is different to that contained in his affidavit, in that rather than diarising a contemporaneous note of his meeting with the attendees, the oral evidence shows that notes were made after the meeting and were recorded on a page in a notepad which was later torn out. Mr Butler stated in evidence that his notes were a ‘reflection’ of his earlier conversation with the Dog Squad officers, complaining about Mr Swann’s treatment of the Applicant.
[96] Mr Butler stated that Mr Ciccolini and Mr Hageman said that there had been no verbal or threatening behaviour by Mr Swann.
[97] Mr Butler said that Mr Hurikino and Mr Hageman said that they thought that Mr Swann’s debrief could have been delivered in private. Mr Butler denies that Mr Hurikino used terms such as ‘unprofessional’, ‘inappropriate’ behaviour or anything about standing over or point at the Applicant.
[98] Both Mr Hurikino and Mr Hageman disagreed with the affidavit evidence of Mr Butler as to how they responded when asked about the incident as part of Mr Butler’s investigation into the incident. In re-examination, Mr Hurikino states that he told Mr Butler that he thought Mr Swann’s debrief was inappropriate and he told him why he thought it was inappropriate. Mr Hageman’s evidence was that he conveyed to Mr Butler his view that Mr Swann could have handled the debrief in a much more professional manner.
[99] This matter was subsequently referred to the Ethical Standards Unit and no further action was taken against Mr Swann.
[100] On the question of whether Mr Butler was aware that the Applicant believed himself to be the subject of bullying, Mr Butler stated in his affidavit that the Applicant spoke to him on occasions about his work and that he felt undervalued in relation to his experience and contributions and that Mr Scott was held in higher regard than him. The Applicant felt that his training methods were not appreciated by Mr Swann, that he did not fit into the team and that his performance was subject to greater scrutiny than other team members. Mr Butler did not however recall the Applicant complaining that he was the subject of bullying by Mr Swann.
[101] The Respondents submit that Mr Swann’s debrief was taken by the Applicant and others present to be directed at the Applicant because of his response to the dog bite on Mr Fox, however, Mr Swann denies that was his intention.
[102] The Respondents submit that while it was not delivered in an ideal way, it was reasonable for Mr Swann to speak to the Applicant about the incident. The Respondents submit that the way the Applicant was spoken to in front of the others is a blemish on otherwise reasonable management action.
[103] I am satisfied that the witness evidence of the Applicant, Mr Hurikino and Mr Hageman supports the conclusion that, in the debrief following the dog bite on Mr Fox, Mr Swann directed his comments toward the Applicant.
[104] The evidence of Mr Swann was that the Applicant became somewhat emotional during the incident. Mr Swann indicated that his comments were directed at ensuring that employees did not become emotional during incidents such as the one that had just occurred. Mr Hurikino’s evidence was that the Applicant was probably excited and emotional given that he was the trainer and his priority was the handler. In these circumstances, Mr Swann holding a debrief was a reasonable course of action to provide employees with guidance as to how situations such as that which occurred should be handled.
[105] Although Mr Swann’s evidence is that he did not address the Applicant specifically during the debrief, the evidence of Mr Hurikino and Mr Hageman suggests otherwise. On the basis of Mr Hageman and Mr Hurikino’s evidence, I accept that Mr Swann directed his comments at the Applicant in a manner that was not reasonable. If Mr Swann felt that the Applicant needed to be spoken to about being mechanical rather than emotional, this conversation should not have taken place in front of other employees and should have been conducted in more professional manner.
[106] In situations in which there is an urgent need for an employee to be spoken to about their conduct, it may be necessary to do so in front of others. However, in this situation there was no urgency as the incident had resolved and consequently, there was no requirement that the Applicant be singled out in the debrief. Mr Swann’s decision to address his concerns with respect to emotional responses was reasonable management action, however, the manner in which he spoke to the Applicant in the debrief demonstrates that this action was not conducted in a reasonable manner. The Applicant rightfully felt aggrieved by this occurrence.”
- [9]The third proven incident was ongoing conduct between December 2019 and January 2020. What was found was:
“Loading the Applicant up with additional duties when acting as Unit Manager and then using deficiencies in his performance as the basis to place the Applicant on a PIP; using erroneous complaints as a basis to place the Applicant on a PIP including the provision of incorrect claims to both Mr Butler and Ms Devlin.
[178] The Applicant claims that Mr Swann deliberately ‘loaded’ him up with tasks while he was acting up in Mr Swann’s role for two weeks, requiring him to complete three full time roles, doing his own job which involved running a course, Mr Swann’s job and the dog development role. The Applicant claims this resulted in the deficiencies later identified by Mr Swann and which were used to justify the proposed PIP, even though he was only acting for a period of two weeks.
[179] Mr Butler gave evidence that it was his decision to offer the Applicant higher duties by acting in Mr Swann’s role for two weeks.
[180] Mr Swann accepted in oral evidence that the Applicant was doing his own role, which included the dog development duties and running a course, and Mr Swann’s role. Mr Scott was no longer with the unit and those responsibilities fell back to the Applicant.
[181] In his affidavit, Mr Swann states that the Applicant took leave in 2019 during the GP course and Mr Swann took over running the course at weeks 9 and 10. Mr Swann states that he noted significant deficiencies across exercises and handlers which were ultimately overcome by the efforts of the handlers on the course. One handler had to have his course extended to meet the standard required.
[182] Mr Swann wrote to Mr Butler about the issue and Mr Butler approved the proposed PIP with the assistance of Ms Devlin. Mr Butler gave evidence that he had no reason to doubt the information provided to him by Mr Swann. Ms Devlin confirmed that she was asked to assist Mr Swann with the PIP process.
[183] Ms Devlin stated in her affidavit that the decision to move to a formal PIP was based on a review of ongoing and persistent performance concerns. Ms Devlin states that it is not incumbent upon Mr Swann, as a Manager, to supply the Applicant with a copy of the email dated 4 November 2019 requesting assistance with the PIP, however, the issues raised in that email would have been tabled during the initial meeting of 6 February 2020.
[184] Ms Devlin’s affidavit stated that she reviewed the material supplied to her from Mr Swann and was satisfied that Mr Swann had taken ‘sufficient preliminary action to address Mr Greenall’s performance and that continuing with the current approach (informal discussions) was unlikely to result in improved performance’.
[185] Mr Swann advised the Applicant on 6 January 2020, prior to going on leave, that a meeting will be held to discuss performance when he returned. On 5 February 2020, the Applicant was given 24 hours’ notice to attend a meeting with respect to his performance. In her affidavit, Ms Devlin states that the purpose of this meeting was to discuss the specific concerns which were raised in Mr Swann’s email and to give the Applicant an opportunity to contribute to the discussion about his performance. The Applicant did not attend this meeting.
[186] In cross-examination, it was put to Ms Devlin that the first two steps of the flowchart of the EPM Guidelines were not followed.
[187] Ms Devlin stated that the cornerstone of the process is regular and constructive feedback and that she was satisfied that this had occurred. Ms Devlin confirmed that she did not meet or discuss anything with the Applicant but accepted that Mr Swann had done so. When pressed as to why the performance effectiveness process had not been conducted prior to the commencement of the PIP, Ms Devlin stated: [The performance effectiveness process] which talks about having regular feedback, providing regular performance discussions. It doesn't mandate that it has to be in a particular format. It can be around the environment with which the employee works. And I was confident based on all the information that Mr Swann gave me on the regular discussions and the other information that the part of the process had been done.
[188] The Applicant submits that Ms Devlin gave oral evidence inconsistent with her affidavit and when cross-examined on the matter, denied the inconsistencies. The Applicant submits that Ms Devlin accepted that no adverse findings had been made against the Applicant with respect to the alleged unauthorised escort of a canine vendor into the AGCC which was detailed in the Chronology document, however, stated that such conduct remained a performance issue because it demonstrated a pattern of behaviour.
[189] The Applicant submits that a further example of Ms Devlin’s defence of Mr Swann s unreasonable behaviour was Ms Devlin’s claim that she relied on data dating back to 2016 as the basis for placing the Applicant on a PIP. The Applicant submits that even Mr Swann accepts that the Applicant was suffering mental health issues in 2016 to 2017 and that those matters were managed as personal health issues and not performance management issues.
[190] The Applicant submits that Ms Devlin showed a lack of knowledge of the EPM Guidelines and that during cross-examination, she endeavoured to explain her conduct by providing her interpretation of the EPM Guidelines and informing the Commission that ‘they are only guidelines’.
[191] The Applicant submits that the Respondents’ decision to place him on a PIP was in breach of clause 5.2 of the EPM Guidelines which sets out a requirement for QCS to commit to a Performance Effectiveness Plan (‘PEP’) before initiating a PIP and clause 5.2.1, which requires the identification of issues such as workplace conflict, lack of systems/procedures, and ineffective supervision which may be contributing to or causing the problem.
[192] The Respondents state that Ms Devlin frankly described how she reviewed the reports of Mr Swann regarding conduct issues around the Applicant in addition to other documents including disciplinary reports, reports from other officers and complaints about the Applicant’s behaviour.
[193] The Respondents submit that Ms Devlin is entitled to rely upon reports from an employee’s supervisor in relation to an employee's conduct and she also took the time to undertake a comprehensive review of the materials to ensure she was not just relying on Mr Swann’s report.
[194] The Respondents submit that Ms Devlin’s oral evidence that she considered other material is not a contradiction of her evidence at [21] of her affidavit. This paragraph states that Ms Devlin and Mr Swann agreed that the PIP document itself would outline expectations only in relation to the next dog training course. Ms Devlin confirmed this in her evidence. The Respondents submit that the email to the Applicant dated 5 February 2020 is consistent with the evidence that the PIP expectations of the Applicant would be in respect of the next training course. That evidence does not suggest they were precluded from having a performance discussion with the Applicant around other issues.
[195] The Respondents submit that the PIP was not put in place on the basis of a wide range of unsubstantiated incidents, rather, Ms Devlin simply did her job by reviewing all the material available to her and conducting a comprehensive review of his performance and conduct history with the employer. The Respondents submit that Mr Swann and Ms Devlin are entitled to discuss performance issues with an employee, and then set a PIP that focusses on the training course. The training courses are a fundamental part of the Applicant’s job.
[196] The Respondents submit that even if Ms Devlin and Mr Swann did in fact consider events or incidents that were ultimately unsubstantiated, there is no unfairness to the Applicant, and there was sufficient justification to implement a PIP based solely on the Applicant’s conduct during the last GP course, that the PIP would have been commenced and the requirements would have remained the same.
[197] The PIP documentation states that the Applicant is being performance managed based on his performance in the previous GP course and the PIP is intended to focus on his performance as a trainer.
[198] With respect to the Applicant’s submission that Ms Devlin had a lack of knowledge of the EPM Guidelines and that she acted in breach of those EPM Guidelines, the Respondents submit that Ms Devlin’s evidence about her application of the EPM Guidelines does not show a deficiency in the process followed. The Respondents submit that the EPM Guidelines state there is a process for employees on probation and Ms Devlin’s evidence was that it was her interpretation of the EPM Guidelines that the process relates to employees on probation, and hence she did not apply that process to the Applicant’s performance management. The Respondents submit that is not an unreasonable interpretation.
[199] I do not accept that the interpretation of EPM Guidelines allows for any part of the process to be ignored on the basis that ‘they are only guidelines’. The EPM Guidelines were produced in fulfilment of the agency's obligations to implement employee performance management strategies, systems and processes and should be complied with to ensure transparency and consistency in performance management decisions.
[200] The EPM Guidelines outline the following performance management processes:
• an induction process;
• a probation process;
• a performance review and development process;
• a process for managing unsatisfactory performance and conduct; • a process for managing disciplinary action; and
• a recognition process.
[201] Ms Devlin’s evidence that she considered that the processes prior to the implementation of a PIP did not apply because the Applicant was not on probation is puzzling. Any reasonable reading of the EPM Guidelines, particularly the process diagram at clause 5.2, makes it clear that a PEP must be progressed as a first option and if not successful, the next option is to progress with a PIP.
[202] I note Ms Devlin’s evidence that there is no requirement that discussions regarding performance issues must be in accordance with a formal plan prior to commencement of a PIP. This may be accurate, however, there is no evidence in this matter that an informal PEP was in place after consultation with the Applicant as required. Clauses 5.2.1, 5.2.2 and 5.3.1 of the EPM Guidelines outline clearly the processes through which unsatisfactory performance may be addressed before consideration is given to the implementation of a PIP. I am not of the view that these processes have occurred such that I could be satisfied that an informal PEP process had taken place.
[203] In my view, the decision to place the Applicant on a PIP following the period during which he was fulfilling three roles was not reasonable. I understand that it is not unusual for employees to take on additional roles whilst co-workers are on leave, however, it is not reasonable to assess an employee's performance as deficient whilst they are balancing this additional workload. If the core part of the Applicant’s role, being the training, was found to need improvement, the EPM Guidelines outline processes through which this may be addressed. The decision to place the Applicant on a PIP following deficiencies identified during the relevant period was not reasonable management action and the failure of the Respondents to adhere to the processes outlined in the EPM Guidelines prior to the attempt to implement a PIP demonstrated that this management action as not undertaken in a reasonable manner.” (emphasis added)
- [10]Mr Greenall still holds the substantive position of dog handler but has transferred to other duties. This results in, firstly, Mr Greenall not presently working with dogs and, secondly, a reduction in wages. He wishes to return to his role.
The Industrial Commissioner’s decision
- [11]The Industrial Commissioner recognised, and directed herself to, the relevant provisions of the Industrial Relations Act 2016 (the IR Act). Those provisions are ss 272 and 275. They provide:
“272 When is an employee bullied in the workplace
- (1)An employee is bullied in the workplace if—
- (a)while the employee is at work, an individual or group of individuals repeatedly behaves unreasonably towards—
- (i)the employee; or
- (ii)a group of employees of which the employee is a member; and
- (b)that behaviour creates a risk to the health and safety of the employee.
Note—
For the meaning of employee for this chapter, see section 8(2).
- (2)To remove any doubt, it is declared that subsection (1) does not apply to reasonable management action carried out in a reasonable manner.” (emphasis added)
“275 Commission may make orders to stop bullying
- (1)This section applies if—
- (a)an employee has made an application under section 273; and
- (b)the commission is satisfied that—
- (i)the employee has been bullied in the workplace; and
- (ii)there is a risk that the employee will continue to be bullied in the workplace.
- (2)The commission may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the employee from being bullied in the workplace.
- (3)In considering the terms of an order, the commission must take into account—
- (a)if the commission is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another entity—those outcomes; and
- (b)if the commission is aware of any procedure available to the employee to resolve grievances or disputes—that procedure; and
- (c)if the commission is aware of any final or interim outcomes arising out of any procedure available to the employee to resolve grievances or disputes—those outcomes; and
- (d)any other matter the commission considers relevant.” (emphasis added)
- [12]The Industrial Commissioner directed herself to the necessity of Mr Greenall to prove that Mr Swann had “repeatedly behave[d] unreasonably towards [him]”. It was not in issue that Mr Greenall was an employee. It was also common ground that any unreasonable behaviour which might be found occurred “while [Mr Greenall] is at work”.[5]
- [13]As to the proper construction of s 272, the Industrial Commissioner held this:
“[9] The Commission must not only be satisfied that an employee has been bullied in the workplace, but must also be satisfied that there is a risk that the employee will continue to be bullied in the workplace before the discretion to make an order can be exercised.”
- [14]The Industrial Commissioner then referred to Re Ms SB,[6] Mac v Bank of Queensland & Ors[7] and Deputy President Merrell’s decision in Welsh v Logan City Council.[8] Following those decisions, the Industrial Commissioner said, of s 272(1)(a)’s requirement of proof of individuals “repeatedly behave[ing] unreasonably towards” an employee:
“[13] As considered in Ms SB, this element implies persistent, unreasonable behaviour which might refer to a range of behaviours over time. There is no specific number of incidents required for the behaviour to represent repeated, unreasonable behaviour, provided there is more than one occurrence. The same specific behaviour does not have to be repeated.”
- [15]After considering all the evidence, rejecting 14 of the alleged instances of bullying, and accepting the other three, the Industrial Commissioner concluded:
“[223] The Applicant submits that whilst the onus is on the Applicant to establish on the balance of probabilities that he suffered from repeated unreasonable behaviour in his workplace, in the event that not each and every incident contained in the Applicant’s affidavit is proven, the case may still be successful by establishing to the requisite standard that some of the alleged workplace bullying occurred. I agree with this submission. Of the matters that I have accepted as occurring in the manner claimed, there are three incidents that, in my view, constitute unreasonable behaviour. I am not of the view, however, that these incidents are of such gravity that they demonstrate repeated unreasonable behaviour so as to constitute bullying.”
- [16]
- [17]Consistently with her findings, the Industrial Commissioner dismissed the application.
The appeal
- [18]The appellant filed an application to appeal in which the “grounds of the appeal” were described as:
“1. The Applicant filed for a Stop Bullying Order against Mr Alan Swann and Qld Corrective Services in the QIRC.
- The case was heard ·and determined by Affidavit and via voce evidence from witnesses in the witness-box on 6 - 8 October 2020
- Written submissions were made by Counsel for the Applicant and by Counsel for the Crown.
- In a written decision dated 30 July 2021, Commissioner Power noted the definition of workplace bullying under S 272 of the Act.
- Such definition includes ‘repeated unreasonable behaviour toward an employee’
- Section 272(2) provides that reasonable management action - carried out in a reasonable manner does not constitute bullying.
- Commissioner Power determined that the Applicant had been treated in an unreasonable manner on 3 occasions.
- It is the Applicant’s position that such finding was sufficient to establish ‘bullying’ as defined in the aforesaid Sec 272(1).
- Commissioner Power went on to find that the aforesaid 3 instances were not of sufficient gravity so as to establish ‘bullying’.
- This decision is wrong. There is no subjective test to be applied once repeated unreasonable behaviour is established. A further error occurred when the Commissioner failed to consider the risk to health & safety and ongoing threat or risk of continuing bullying behaviour, given that a determination of repeated (3 occasions) unreasonable behaviour toward the Applicant was established to the Commission’s satisfaction.”
- [19]The “grounds of the appeal”, as appearing in the application to appeal, contain various allegations beyond what is more traditionally recognised as grounds of appeal being articulated grounds of appellate challenge. No doubt recognising this, counsel for Mr Greenall, in his written submissions, recast the grounds in this way:
“3. There are two (2) grounds of appeal, namely that:
- (i)The Commissioner erred in law or misdirected herself as to the definition of workplace bullying as set out in section 272 of the Act; and
- (ii)The Commissioner erred at law or misdirected herself as to the need to further consider a risk to the health & safety of the Appellant as required by section 272(1)(b) of the Act.
- To put it beyond doubt, there are no other grounds of appeal.”
- [20]No objection was taken to the recasting of the grounds of appeal.
- [21]During the hearing of the appeal, the issues in dispute narrowed to one question of law being a question of construction of s 272 of the IR Act.
- [22]The appellant’s submission was that the term in s 272(1)(a) “repeatedly behaves unreasonably towards [the employee]” requires nothing more than a finding that unreasonable behaviour had occurred “repeatedly”. It was submitted that there having been a finding by the QIRC of three instances of unreasonable behaviour, that amounts to the unreasonable behaviour occurring “repeatedly” and therefore s 272(1)(a) is, without more, proved. It was submitted that the Industrial Commissioner was then obliged to consider the element of risk to health and safety of Mr Greenall which is prescribed by s 272(1)(b) and then, finally, the discretion to grant relief under s 275(2).
- [23]The respondents submitted that the term “repeatedly behaves unreasonably towards [Mr Greenall]” involves more than simply an identification of several instances of unreasonable behaviour. The respondents support the interpretation of s 272 as held by Industrial Commissioner Power that once there are proven instances of unreasonable behaviour, there is then a judgment to be exercised to determine whether that constitutes bullying, ie “repeated unreasonable behaviour”.
- [24]Section 557 of the IR Act prescribes the nature of an appeal from the QIRC to this Court. That section, relevantly, provides:
“557 Appeal from commission
- (1)The Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court on the ground of—
- (a)error of law; or
- (b)excess, or want, of jurisdiction.
- (2)Also, the Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court, with the court’s leave, on a ground other than—
- (a)error of law; or
- (b)excess, or want, of jurisdiction. …
- (4)If a person may appeal a decision of the commission under both subsections (1) and (2), the person may only appeal against the decision with the court’s leave on a ground mentioned in subsection (2). …”
- [25]Of relevance also is s 565 which is in these terms:
“565 When leave for appeal must be given
If an application for leave to appeal is made under section 554, 557 or 560, the Court of Appeal, court or full bench—
- (a)must give leave if it is satisfied it is in the public interest to do so; and
- (b)may not give leave other than under paragraph (a).”
- [26]None of the parties seek leave to challenge any of the primary findings of fact made by the QIRC. In other words, the respondents accept that the appeal must be determined on the basis that three incidents of unreasonable behaviour are proved as found by the QIRC. Conversely, Mr Greenall accepts that the appeal must be decided without reference to the 14 alleged incidents which the QIRC did not find proved.
- [27]If, as the respondents submit, the Industrial Commissioner was correct in her construction of s 272(1)(a) of the IR Act, then she was required to exercise a judgment as to whether the proved behaviour showed that Mr Swann had “repeatedly behave[d] unreasonably”. Success by Mr Greenall on appeal would require some error to be shown in that assessment.[11]
- [28]Appeal ground (ii) need not be considered. That is because bullying is only established where both the elements prescribed by s 272(1)(a) and (b) are found. If the QIRC’s decision that the element in s 272(1)(a) is not made out stands, then the failure to consider and find a risk to health and safety[12] is of no moment.
- [29]Mr Greenall does not identify any legal error in any value judgment made by the Industrial Commissioner in relation to her failure to find the element in s 272(1)(a) proved.
- [30]It follows then that the only issue for determination on appeal is whether Industrial Commissioner Power erred in her construction of s 272(1)(a). If the answer to that inquiry is negative, then the appeal must be dismissed. If the answer to that inquiry is positive, then the matter must be remitted back to the Industrial Commissioner so that she can revisit her conclusions on the element in s 272(1)(a), then proceed to make findings required by s 272(1)(b) and also, if necessary, exercise the discretion bestowed upon her by s 275 of the IR Act.
Did the Industrial Commissioner properly direct herself on s 272?
- [31]
- [32]Section 272 taken literally and taken in isolation could mean that bullying must be found where there are a number (here three) instances of unreasonable behaviour, no matter how often or how trivial the unreasonable behaviour is. Mr Greenall submits that is the correct construction.
- [33]Section 275(2) empowers the QIRC to give remedies in the event of bullying. The orders which are to be made are those designed “to prevent the employee from being bullied in the workplace”. Section 275(1)(b)(ii) requires, before relief can be given, that there is a risk of continuing bullying. It is hardly surprising then that the cases decided on this issue have held that what is required is some “persistence” in the acts said to constitute the bullying. In other words, it is behaviour of the type to be redressed pursuant to s 275.[15]
- [34]
“[88] In Re SB, the Commission (Hampton C) discussed the requirement for repeated unreasonable behaviour in the following terms:
‘[41] Having regard to the approach urged by the authorities, the concept of individuals ‘repeatedly behaving’ unreasonably implies the existence of persistent unreasonable behaviour but might refer to a range of behaviours over time. There is no specific number of incidents required for the behaviour to represent ‘repeatedly’ behaving unreasonably (provided there is more than one occurrence), nor does it appear that the same specific behaviour has to be repeated. What is required is repeated unreasonable behaviour by the individual or individuals towards the applicant worker or a group of workers to which the applicant belongs.
[43] ‘Unreasonable behaviour’ should be considered to be behaviour that a reasonable person, having regard to the circumstances, may consider to be unreasonable. That is, the assessment of the behaviour is an objective test having regard to all the relevant circumstances applying at the time.’
[89] I respectfully agree with those statements, but I would add three further observations about the interpretation and practical application of the expression ‘repeatedly behaves unreasonably’ in s. 789FD(1)(a). First, the expression falls within a definition provision. The function of a legislative definition, as was pointed out by McHugh J in Kelly v R, is not to enact substantive law, but to provide aid in construing the statute. A definition provision is therefore not to be interpreted in isolation and thereby given a meaning which negates the evident policy or purpose of a substantive enactment. Part 6-4B has the evident purpose of establishing a mechanism by which the bullying of workers at work may be stopped. In interpreting, and applying, the expression ‘repeatedly behaves unreasonably’ as it appears in s. 789FD(l)(a), the concept of repeated unreasonable behaviour is not to be approached in a manner which divorces it from that purpose. The subject matter is bullying at work, and that must be borne steadily in mind in any consideration as to whether particular behaviours are unreasonable for the purpose of s. 789FD(l)(a). A consideration of unreasonable behaviour which loses sight of the objective and subject matter of Part 6-4B may lead to the provisions not achieving their intended purposes, or being used for a purpose that was not intended.”
- [35]In my view, this reasoning is sound and is equally applicable to the construction of s 272 of the IR Act.
- [36]In Welsh v Logan City Council,[18] Deputy President Merrell followed Mac, and SB, referred to cases under the Fair Work Act 2009 (Cth) which has equivalent provisions in relation to bullying. The Deputy President correctly, and neatly in my respectful view, stated the principles in this way:
“[24] First, the purpose of the provisions is to establish a mechanism by which the bullying of an employee at work may be stopped. In applying the expression ‘repeatedly behaves unreasonably’, the concept of repeated, unreasonable behaviour is not to be approached in a manner which divorces it from that purpose. The subject matter is bullying at work and that must be borne steadily in mind in any consideration as to whether particular behaviours are unreasonable. A consideration of unreasonable behaviour which loses sight of the objective and subject matter of the provisions may lead to them not achieving their intended purposes or being used for a purpose that was not intended.”
- [37]In my view, Industrial Commissioner Power has not misdirected herself on the construction of s 272 of the IR Act. For the reasons explained, that is the only issue for determination on the appeal.
Conclusions and orders
- [38]Ground (i) of Mr Greenall’s appeal fails. The failure of ground (i) is, for the reasons I have given, fatal to the appeal and ground (ii) need not be considered.
- [39]The appeal ought to be dismissed.
Orders
- [40]The appeal is dismissed.
Footnotes
[1] Industrial Commissioner Power.
[2] Greenall v State of Queensland (Queensland Corrective Services) [2021] QIRC 264.
[3] Industrial Relations Act 2016, s 272(1)(a).
[4] I have approached them chronologically.
[5] Section 272(1)(a).
[6] [2014] FWC 2104.
[7] (2015) 247 IR 274.
[8] [2021] QIRC 141.
[9] Industrial Relations Act 2016, s 272(1)(a).
[10] Section 272(1)(b).
[11] Norbis v Norbis (1986) 161 CLR 513.
[12] Section 272(1)(b).
[13] And probably all legal documents. See Byrnes v Kendle (2011) 243 CLR 253 at [95]-[116].
[14] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27 at [47], Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936 at [14] and [35]-[40] and The Queen v A2; The Queen v Magennis; The Queen v Vaziri (2019) 93 ALJR 1106 at [32].
[15] Re SB [2014] FWC 2104, Mac v Bank of Queensland Ltd (2015) 247 IR 274 at [89].
[16] (2015) 247 IR 274.
[17] [2014] FWC 2014.
[18] [2021] QIRC 141.