Mcatee v Holt[2023] QIRC 125

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Reasons for Decision

Introduction

1. [1]
   Ms Rosemarie Mcatee ('the Applicant') is employed by the State of Queensland (Department of Education) as a school cleaner at the Virginia State School ('the school').

2. [2]
   The Applicant filed an Application for an order to stop bulling ('the Application') against Keli Holt (‘the Respondent’). The Respondent also works as a school cleaner at the school.

3. [3]
   The Applicant filed the Application on 28 July 2021 following which a telephone conference was held involving both parties and a representative from the Department of Education ('the Department') as an interested party.

4. [4]
   The matter failed to resolve at the conference and consequently a Directions Order was issued on 14 September 2021 directing the parties to file and serve submissions in preparation for hearing.

5. [5]
   The Department advised that during November 2021, Wooloowin State School ('Wooloowin SS') contacted the Department's HR section seeking a cleaner. The Department then contacted the Principal of Virginia SS and the Principal of Wooloowin SS to discuss utilising this opportunity to create space between the parties 'in order to help calm the situation down'.

6. [6]
   At a Mention on 13 January 2022 the Commission was advised that the Respondent's work location had changed to Wooloowin SS. The matter was subsequently placed in abeyance.  

7. [7]
   The Respondent commenced duties at Wooloowin SS on or around 29 November 2021 and continued until the end of Term 3 on 16 September 2022. 

8. [8]
   The Department submits that in order to help maintain some space between the parties, HR was able to offer the Respondent some temporary cleaning duties at Northgate State School for Term 4 from 4 October 2022 to 9 December 2022 in addition to performing some of her hours back at Virginia SS. 

9. [9]
   The Respondent re-commenced work in her substantive position at Virginia SS on             13 January 2023. 

10. [10]
    Following the Applicant's request that the Application now proceed, a Mention was held on 31 October 2022 and a directions order issued directing parties to file and serve submissions in preparation for hearing.

11. [11]
    The Applicant stated in her outline of argument that she was seeking damages. At the commencement of the hearing the Applicant was advised that such an order cannot be made in these proceedings.

Statutory framework

Section 272 of the Industrial Relations Act 2016 ('the Act')

12. [12]
    Section 272 of the Act defines when an employee is bullied in the workplace and provides:  

3. 272
   When is an employee bullied in the workplace

3. (1)
   An employee is bullied in the workplace if-

3. (a)
   while the employee is at work, an individual or group of individuals repeatedly behaves unreasonably towards-

3. (i)
   the employee; or

3. (ii)
   a group of employees of which the employee is a member; and

3. (b)
   that behaviour creates a risk to the health and safety of the employee.

3. Note-

3. For the meaning of employee for this chapter, see section 8(2).

3. (2)
   To remove any doubt, it is declared that subsection (1) does not apply to reasonable management action carried out in a reasonable manner.

13. [13]
    All the requirements of s 272 of the Act must be read together, meaning the Commission must consider whether an individual or group of individuals have repeatedly behaved unreasonably towards an applicant and whether that behaviour has created a risk to health and safety.^[1]

14. [14]
    For matters such as this that do not involve management action, a positive finding on each of those elements in s 272 must be made out for the Commission to find that an applicant has been bullied at work.^[2]

15. [15]
    As considered by Deputy President Merrell in Welsh v Logan City Council^[3] the concept of  'unreasonable behaviour' should be considered to be behaviour that a reasonable person may consider to be unreasonable such that the assessment of the behaviour involves an objective test having regard to all the relevant circumstances applying at the time.

16. [16]
    In order for conduct to be reasonable, it does not have to be the best or preferable course of action.^[4]

17. [17]
    When considering whether there has been unreasonable behaviour towards an employee, it will be necessary to determine whether the alleged behaviour actually occurred.^[5]

Section 275 of the Act

18. [18]
    Section 275 of the Act outlines the power to make orders to stop bullying and provides:

3. 275
   Commission may make orders to stop bullying

3. (1)
   This section applies if-

3. (a)
   an employee has made an application under section 273; and

3. (b)
   the commission is satisfied that-

3. (i)
   the employee has been bullied in the workplace; and

3. (ii)
   there is a risk that the employee will continue to be bullied in the workplace.

3. (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. (3)
   In considering the terms of an order, the commission must take into account-

3. (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

3. (b)
   if the commission is aware of any procedure available to the employee to resolve grievances or disputes-that procedure; and

3. (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

3. (d)
   any other matter the commission considers relevant.

19. [19]
    The discretion to make an order to stop bullying is enlivened only if the Commission is satisfied that the employee has been bullied in the workplace. The Commission must then be satisfied that there is a risk that the employee will continue to be bullied in the workplace.

20. [20]
    Having regard to s 272 and s 275 of the Act, the questions for determination are:  

• while the Applicant was at work, did the Respondent repeatedly behave unreasonably towards the Applicant? and, if so

• did that behaviour create a risk to the health and safety of the Applicant? and, if so

• is there a risk the Applicant will continue to be bullied in the workplace? and, if so

• what order, pursuant to s 275 of the Act, should be made?

21. [21]
    For the reasons that follow, I am not satisfied that the Respondent engaged in repeated, unreasonable behaviour towards the Applicant. For that reason, I cannot be satisfied that the Applicant has been bullied in the workplace.

Witnesses

22. [22]
    The following witnesses gave evidence at the hearing:

3. a)
   Ms Sherilyn Fowke

• Ms Fowke is a teacher's aide at the school and has worked with the Respondent and formed a friendship during this time. Ms Fowke gave evidence that the Respondent was happy and outgoing before the alleged assault by the Applicant.^[6] Ms Fowke stated that following the alleged assault by the Applicant, the Respondent became anxious and unsettled. Ms Fowke did not witness any interactions between the parties.

3. b)
   Ms Gabby Irici

• Ms Irici was previously employed as a cleaner at the school. Ms Irici gave evidence about an incident involving herself and both parties on 18 June 2021. Ms Irici gave evidence that although she had been good friends with the Respondent she had gotten 'fed up' with the Respondent refusing to let things go and the tone she used at work.^[7]

3. c)
   Ms Jenny Fellows

• Ms Fellows was previously employed as a cleaner at the school. Ms Fellows was not employed at the school at the same time as both parties and so did not witness any of the alleged conduct between the parties. I approach Ms Fellows' evidence with caution for a number of reasons. Firstly, Ms Fellows gave inconsistent evidence about the reason she resigned from her position. The first reason given was that she resigned because of the conduct of the Respondent,^[8] however later in evidence Ms Fellows stated that she resigned because she did not want the trouble of 'sitting down every three months' to renew her position and so she quit to find another job.^[9] Secondly, in cross-examination Ms Fellows agreed that she had previously had a friendship with the Respondent and they had socialised outside of school. This friendship had ended on poor terms and in my view it is likely these circumstances had at least some influence on Ms Fellows' evidence.

• The essence of Ms Fellows' evidence was that the Respondent had spoken to her 'like a dog' when inquiring as to why a door had been left unlocked in her area.^[10]

3. d)
   Mr Corey Weldon

• Mr Weldon has been employed as a cleaner at Virginia State School for approximately ten years.

• Mr Weldon gave evidence of his difficulties working with the Applicant, stating that the 'target' that had previously been on the Respondent's back had moved to him after the Respondent took a temporary role in another school.^[11] His evidence was that the Applicant was manipulative and twisted circumstances to accuse others of bullying.

• Mr Weldon gave evidence that a number of meetings were called at the school because of the tension and low morale amongst the cleaners, with these meetings taking place during the Respondent's period of absence.^[12] Mr Weldon gave evidence that he was falsely accused by the Applicant of jeopardising the Applicant's job by leaving doors open in her area.^[13]  

• Mr Weldon disagreed with the proposition that he was scared of the Respondent and gave evidence that 'everyone' is scared of the Applicant because she had 'written stuff down, taken pictures, made a case against pretty much everybody.' ^[14]

3. e)
   Rosemarie Mcatee - (the Applicant)

• The Applicant works as a cleaner at the school. I observed the Applicant gave evidence and formed the view that she was prone to exaggeration and held a vengeful rather than fearful view of the Respondent. The Applicant attempted to embarrass a witness with an irrelevant line of questioning which bordered on scandalous.^[15] The Applicant did not make reasonable concessions^[16] and appeared to have no insight into her contribution to the ongoing conflict with the Respondent.

• The Applicant submits that ''the school haven’t done anything for both respondent and applicant to avoid seeing and being together in one area.'' ^[17] This is not a relevant consideration in determining this application, however the statement reflects poorly upon the credit of the Applicant. The Applicant's submission is not supported by evidence. The Department's submissions and the Respondent's evidence confirms that the Department had engaged with the parties to change their rostered times and areas of responsibility to minimise the likelihood of the parties interacting. The Applicant's evidence regarding the actions of the school management team and the Department, including that 'nothing' was done in response to her complaints, reflects a tendency by the Appellant to make exaggerated statements. I have approached the Applicant's evidence cautiously in the absence of supporting evidence given her propensity to overstate circumstances in her description of events.

3. F)
   Keli Holt (the Respondent)

• The Respondent works as a cleaner at the school. I accepted the Respondent's evidence as generally truthful as she made reasonable concessions throughout her testimony^[18] and appeared to have some insight into her role in the conflict. Where the evidence of the Applicant conflicts with that of the Respondent, and in the absence of other supporting evidence, I have accepted the evidence of the Respondent.

Allegations

Incident on 18 June 2021

12. [23]
    The Applicant gave evidence of an argument between the parties witnessed by Ms Irici on the morning of 18 June 2021. The Applicant states that whilst hosing the concrete the previous afternoon she noticed a jacket which she had intended to pick up. The next morning, the Applicant states that the Respondent began yelling and swearing at her for not picking up the jacket. The Respondent gave evidence that she saw a jacket on the ground that the Applicant had hosed around and left out overnight. The Respondent stated that she picked up the jacket that was still wet and put it in the lost property. The Respondent's evidence was that she asked the Applicant why the jumper was not picked up and it 'ended up in a screaming match' with the Applicant stating that 'we can’t all be perfect like you' which the Respondent took as a 'dig.' ^[19] The Respondent stated that she felt the Applicant was 'stirring the pot' and that when Ms Irici stepped in she told her that she didn't appreciate being abused by the Applicant.

12. [24]
    The Applicant submits that the Respondent intimidated her by screaming and swearing in front of her. Following this incident the Applicant walked away toward the cleaning room but then walked towards where the Respondent and Ms Irici were still talking. The Applicant submits that the Respondent then stated ''get out of here, you don’t have fucking business here.'' ^[20]

12. [25]
    Ms Irici gave evidence that the Applicant said to the Respondent that 'no one is perfect' and the Respondent then yelled and screamed as she was walking up the stairs and along a veranda 'ranting and raving' that she wanted to go home.^[21] Ms Irici stated that she told the Respondent to calm down. After she had finished work at 7am Ms Irici saw the Respondent taking the wheelie bin down to the oval and said to her that she should leave it so she could go home. Ms Irici said the Respondent started yelling and so she went over to her and asked her what was going on. The Respondent then started yelling and stating that they do not know what her life is like.  When Ms Irici advised the Respondent to change the tone of her voice she responded that 'This is me, this is who I am.'^[22]

12. [26]
    In cross-examination Ms Irici confirmed that the Respondent did not swear during this incident.

12. [27]
    The Principal at the time, Ms Leanne Stewart (Ms Stewart), took statements from each party and provided identical letters to the parties outlining her expectations moving forward relating to behaviour and communication at the school.

12. [28]
    It appears that the conversation between the parties escalated quickly and ended with the Respondent yelling at the Applicant. I accept Ms Irici's evidence that the Respondent was yelling and refused to calm down. This was an excessive reaction to a minor incident involving a mistake by the Applicant and is symptomatic of the intense personality conflict between the parties. Based on Ms Irici's evidence, I consider that the Respondent's conduct in this incident to be unreasonable.

Other allegations

12. [29]
    The Applicant made a number of allegations regarding the conduct of the Respondent, however many of these allegations were not put to the Respondent at the hearing. I am mindful that the parties were self-represented at the hearing, however I am not willing to rely upon the Applicant's evidence in circumstances where the Respondent was not asked to provide a response to the specific allegation.^[23]

12. [30]
    My other concern about much of the evidence was that it contained considerable hearsay and speculation. As determined in a similar matter involving an application for an order to stop bullying, Ms SB,^[24] the Commission will only make findings based on credible and reliable evidence.  Hearsay, speculation and untested evidence will not be relied upon.

12. [31]
    The Applicant states that the Respondent left offensive notes in the area where the Applicant sits on three occasions, with the notes directing her to put a chair back and the blower back to their locations. The Respondent's evidence was that she did not leave notes specifically for the Applicant. The Respondent stated that she would leave a note for everyone if necessary regarding school events. The example given by the Respondent was if additional bins were needed following a school function she would leave a note stating that 'extra bins required'.^[25] I accept that the Respondent left notes generally regarding relevant issues at the school and am not satisfied that the Respondent left offensive notes for the Applicant.

12. [32]
    The Applicant submits that the Respondent verbally abused her and spoke to her in an inappropriate manner. The Applicant stated that after she told the Respondent that she had taken gloves to the prep area, the Respondent called her 'fucking rude' and told her that she was 'fucking selfish' and did not have 'a fucking brain'. The Applicant stated that she reported this interaction but that nothing happened, stating 'Always I complain; nothing happen'.^[26]  This allegation was not put to the Respondent at the hearing.

12. [33]
    The Applicant submits that on 13 July 2021 she witnessed the Respondent taking a photo of her while she was in conversation with the grounds keeper about a work issue. The Respondent gave evidence that she had never taken photos of the Applicant. On the basis that there was no supporting evidence of a photo being taken, and the possibility that the Respondent may merely have been on her phone at the time, I accept the Respondent's evidence that she did not take a photo of the Applicant.

12. [34]
    The Applicant submits that on 18 October 2021, she saw the Respondent next to the water fountain near the Applicant’s car holding a book and a pen. The Applicant submits that the Respondent vandalised the car as the car later had a blue line mark. The Respondent gave evidence that she did not use a pen to vandalise the Applicant's car and had never touched her car. I accept the Respondent's evidence that this did not occur and consider it unlikely that the Respondent would take such action in an open car park where it would likely be seen.

12. [35]
    The Applicant submits that the Respondent 'spread misinformation and rumours' and advised another employee that a window had been left open in the Applicant's area of responsibility.^[27] The Applicant submits that she checks everything before leaving the area and was sure that her windows was closed. Despite the Applicant's evidence that the Respondent has been opening windows to get other cleaners into trouble, the Applicant was unable to confirm if she had ever been in trouble for not closing windows. When asked if she had ever 'gotten into trouble' for having left the windows open, the Applicant replied ''Myself? Not sure.''^[28] I have no doubt that if the Applicant had been spoken to for leaving doors or windows open she would have recalled such an occurrence. The Applicant did not call the employee who she alleges had been told that the Applicant left a window open. Accordingly, I cannot be satisfied that the Respondent spread misinformation or rumours about the Applicant with respect to this allegation.

12. [36]
    The Respondent submits that the alarms would be set at the end of the day and if there are windows or doors left open the alarm cannot be set as it will be set off immediately. The system alerts the Respondent, and as the 'runner' she would go and find the open door or window and lock it.^[29] Ms Irici confirmed in her evidence that if alarms went off it meant that something had been left open and it was the person's duty to go and find out what had caused the alarm to trigger.

12. [37]
    It appears that the essence of the Applicant's evidence was that the Respondent would maliciously go into the Applicant's work area and open doors and windows that had previously been closed in order to get the Applicant into trouble. It seems unlikely that the Respondent would open windows in order to get other cleaners into trouble in circumstances where there is no evidence of what 'trouble' would ensue if it was found that the windows were open. Neither the Applicant nor other witnesses gave evidence of any consequences for leaving windows or doors open.

12. [38]
    The Applicant submits that on 18 October 2022 the Respondent did not follow safety school protocol when opening the school as she opened the school prior to the arrival of her co-worker Aida. This is an example of the Applicant attributing malicious intent to innocuous conduct by the Respondent. Even if it is accepted that the Respondent turned off the alarm, switched on  the light and opened the door prior to the arrival of the second employee, this was entirely unrelated to the Applicant. The Applicant appeared intent on pointing out any failings in the Respondent's work even if it was in no way connected to the Applicant. Repeating gossip and commentary about minor transgressions to other cleaners appears to be a continuing theme of the Applicant's conduct.

12. [39]
    The Applicant submits that the Respondent cleaned graffiti vandalism that was over the water fountain in her area. The Applicant gave evidence that she was 'surprised and scared' and that it she felt a ball in her chest and a dry throat as she was in shock because the Respondent was doing the Applicant's job. The Respondent's evidence was that she came across graffiti underneath her building on the wall above the drinking fountain. She then asked the groundskeeper for the cleaning material to remove the graffiti and proceeded to work with another cleaner to scrub off the graffiti. The Respondent stated that the Applicant came over and it was only then that the Respondent was made aware that the Applicant usually cleans the drinking taps at that time. This was not unreasonable conduct by the Respondent as it appears that the building was in her work area, notwithstanding the drinking taps were in the Applicant's work area. The Respondent was simply doing the job that she was employed to do.

12. [40]
    The Applicant asked Ms Irici questions regarding the Respondent's response to the Applicant being made a permanent employee. Ms Irici qave evidence that the Respondent did not want the Applicant to be made permanent and described her as 'a fucking bitch'.^[30] Like many of the individual allegations, this allegation was not put to the Respondent in cross-examination. Even if it is accepted that this conversation occurred, it is not evidence of unreasonable behaviour toward the Applicant. As distasteful and inappropriate as the comment may have been, it was a private conversation between two other parties that should not reasonably have been repeated to the Applicant. It was understandable that the Applicant was aggrieved when this conversation was repeated to her, however this is not evidence of the Respondent's bullying. It is however evidence of an environment in which commentary and gossip is repeated inappropriately to co-workers contributing to a cyclone of drama in the workplace. The Respondent should not have made the comment to Ms Irici and Ms Irici should not have relayed the comment to the Applicant.

12. [41]
    Ms Irici conceded that other than observing the incident of 18 June 2021, she only knew what she had been told by other teachers about the Respondent's alleged unreasonable conduct. Ms Irici gave the following evidence:

Look, I – I can’t – I have not observed a lot. It’s just what I have been told by other cleaners. I honestly, you know – apart from what happened to me, that’s – and what happened on that day of the 18^th in the morning – that’s really what – all I saw. Everything else is he said, she said and that’s what’s coming – that was coming back to me.

…

Look, they – I – I didn’t witness it myself. It was all, you know, what was told to me. I didn’t – I didn’t see these things happening myself with my eyes. You know what I mean? ^[31]

12. [42]
    I considered Ms Irici to be a credible witness who did her best to recall matters that occurred some years ago. I accept her account of the incident of 18 June 2021 and also accept that much of what she knew of the Respondent's conduct came to her third hand.

12. [43]
    The Applicant gave evidence that the Respondent on occasion kicked the cleaning door when she was angry at the Applicant. This was not put to the Respondent in cross-examination.

12. [44]
    The Applicant questioned Mr Weldon about whether the Respondent had bullied his  mother whilst she worked at the school. Mr Weldon's mother was not called to give evidence and Mr Weldon gave evidence that his mother had not told him that she had been bullied but had referred to disagreements 'like in any workplace'.^[32]

12. [45]
    When asked about an incident between the Applicant and Mr Weldon, Mr Weldon gave evidence that the Applicant 'abused him' and 'started ranting and raving like you usually do' and raising her voice over anyone else.^[33] Mr Weldon stated:

You – you just don’t listen to people. You raise your voice. And then you twist it and say that you’re the one being the bully.^[34]

12. [46]
    Mr Weldon described an incident involving a hose in which he recalls the Applicant  screaming at him for ten minutes and scrolling through her phone with her hands shaking to find picture of him leaving the door open on three occasions.

12. [47]
    It is clear that the Applicant and Mr Weldon also have a tense working relationship, with Mr Weldon describing the Applicant's conduct in similar terms to the Applicant’s allegations about the Respondent's conduct. 

12. [48]
    The Applicant describes finding her bucket and mop under the shelves and after enquiring was told by a co-employee that it must have been dragged by 'a big rat'.^[35] The Applicant took the comment to refer to the Respondent. The Respondent denied moving the bucket and mop, stating that she has her own equipment and there is no need for her to touch the Applicant's things. I accept that the Respondent did not move the Applicant’s equipment.

Incident of September 2021 (alleged assault by Applicant)

12. [49]
    The Respondent gave evidence that in September 2021, 'a simple question asked to Marie resulted in my being attacked and punched in the chest three times.' ^[36] The Respondent's evidence was that after asking the Respondent about her workload and finishing time the Applicant 'lost it' and accused the Respondent of having 'a go' at her about her work. It appears that the parties and Mr Wheldon were walking to the car park at the end of the day when this conversation occurred. The Respondent stated that the Applicant began screaming and yelling and when they reached the car park the Applicant turned around and punched her in the chest three times.

12. [50]
    The Respondent called the police and provided a statement to the police following the incident. The Respondent gave the following evidence about the incident:^[37]

I was – I did seek the police for an assault charge and I did ring my boss in regard to this matter. I also saw a doctor and counselling and was prescribed medication for anxiety and depression. My world basically crumbled when Marie did what she did. I lost my confidence. I was traumatised. I was caught with anxiety massively, especially when she was showing up to work early and you never knew whether she was going to be in the storeroom or whether she was in her car.

That was a big deal for me. I was crying a lot. It was really traumatising. It was – work was my safe place, and she took that away from me. I no longer felt safe. And if I felt like I couldn’t ask a question without being attacked then what was to say that she wasn’t going to attack me again? She was walking around the school with her phone, trying to stalk me, trying to catch me doing things or saying things all the time.^[38]

12. [51]
    The Applicant's evidence was that the Respondent was walking closely behind her whilst swearing and yelling. The Applicant gave evidence that she turned around and used both hands to push the Respondent away.

12. [52]
    The Department submits that the matter was reported to the Department's Integrity and Assessment Unit (IAU) and that the matter met the threshold for a Public Interest Disclosure (PID) and that the discloser was deemed to be a person protected under the PID legislation.

12. [53]
    The Department submits that Ms Sherin Roberts (Ms Roberts), Senior Human Resources Consultant, Department of Education, conducted a management enquiry into the matter. Ms Roberts concluded there was insufficient evidence to suggest the conduct occurred as alleged.

12. [54]
    Based on the evidence of both parties, I am satisfied that the Applicant physically pushed the Respondent in the chest. I am also satisfied that this occurred in the context of a vocal disagreement between the parties which commenced with the Respondent questioning the Applicant’s work practices.

12. [55]
    This incident again demonstrates the level of personal animosity between the parties, however I note that it was the Applicant who physically pushed the Respondent at the height of the argument.

Management actions

12. [56]
    Following the incident on 18 June 2021, the Principal at the time, Ms Stewart, provided identical letters on 25 June 2021 to the parties outlining her expectations moving forward.

12. [57]
    The Department submits that on 9 August 2021 the school Principal, Ms Tanya Abell, met with the parties separately to confirm the expectations set in the letters of 25 June 2021, and implement some practicable strategies to mitigate risk and address any future issues, which included:

• confirming the parties understood the previously established expectations of them;
• providing each party a copy of and explanation of the IEG Procedure; and
• implement agreed changes to the roster to minimise the amount of potential contact between the parties.

12. [58]
    The management of the school and HR have shown admirable patience in managing this conflict.  One might reasonably expect that should either party conduct themselves in a manner contrary to the expectations set out by the principal moving forward, that party would be subject to performance management.

Consideration

12. [59]
    Despite the existence of a clearly dysfunctional working relationship, I am not persuaded that there is sufficient evidence that the Respondent has bullied the Applicant. Having considered the evidence regarding the allegations outlined by the Applicant and noting only one incident on 18 June 2021 involved the Respondent engaging in unreasonable behaviour, I am not persuaded that the Respondent has engaged in repeated unreasonable behaviour that could constitute bullying. 

12. [60]
    The evidence given by both parties reflects a significant level of animosity including heightened suspicions and entrenched mistrust. The Applicant submits that she could not sleep on 17 November 2022 and so arrived at 3.45am and sat in her car while awaiting for another person to arrive. When the Respondent arrived, the Applicant submits that she had a panic attack, chest pain and locked herself inside the car thinking that the Respondent might drive and hit her. On the evidence before me, there is no sound basis for considering that the Respondent would behave in this manner. There is no evidence that the Respondent has been physically violent, or threatened to be physically violent.

12. [61]
    The Applicant was asked at the hearing if the Respondent had engaged in bullying behaviour since her return to the school on 13 January 2023. The Applicant's response vaguely suggested that the Applicant was checking the windows in someone else's work area, however no specific details were provided. When pressed as to whether the Respondent had interacted with the Applicant specifically, the Applicant stated that she had not.^[39]

12. [62]
    I note that when opportunities were presented to avoid the Respondent, the Applicant did not avail herself of them. The Applicant submits that her supervisor Robin Cowl asked her if she wanted to change her working hours and place her cleaning equipment somewhere else so that she could avoid meeting the Respondent. The Applicant submits that she replied that she did not need to adjust her time because she had not done anything wrong. This was a curious response from someone who contends that any contact with the Respondent causes her to have symptoms of anxiety. The Applicant's reaction to this suggestion reflects the combative and belligerent approach taken by the Applicant in this matter.

12. [63]
    The Respondent gave evidence that after the alleged assault her world 'crumbled' and so when the opportunity to work elsewhere presented itself she took it. The Respondent gave evidence that she was 'petrified' to return to the school in 2023 following the end of the external placement, stating that she was ‘in fear for my safety'.^[40]

12. [64]
    The Respondent gave the following evidence about her return to the school in 2023:

I was in fear for my life. Because I didn’t know what she was going to do, it she had managed to let things go and move on. Clearly, she hadn’t. I’ve been accused of things that are unbelievably – that I’ve never done. I’ve been called names. I have been – I’ve had other staff members come to me and talk to me about things that they could only have known from Marie. I feel like have been – like, defamation of character. She has. Like, assassinated my name. She has tarnished it. She has accused me of a lot of things that I’ve never done. And since that incident, I have done everything in my power to not engage with her, to stay away from her, not go into her area. Just – not leave her notes, not threaten her, not talk to her. I have had nothing to do with her at all.

…

I don’t want to work with her. I don’t want to be anywhere around her, because if she can just lose her cool and assault someone over a question then it’s my biggest fear that she can attack me again at any moment, at any time. I don’t feel like I have done anything to her. I don’t feel like I have bullied her in any way, shape or from. I’ve just wanted to go to work and do my job, and that’s it, and I just don’t feel like I can do that with the constant harassment that I am constantly getting on a daily basis from her.^[41]

12. [65]
    There is medical evidence^[42] that both the Applicant and Respondent are suffering symptoms related to their work environment. The Applicant submits that when the Respondent returned to work in the school the Applicant had a chest pain, sweating, and an anxiety attack.

12. [66]
    I note that Ms Irici gave evidence that she thought the Respondent had an anger  management problem. I also note that Mr Weldon gave evidence that he thought the Applicant had an anger management problem. It seems to me that both parties have behaved at times without appropriate consideration of their actions on the other party and their work colleagues.

12. [67]
    Mr Weldon's evidence that meetings were called at the school because of the tension and  low morale amongst the cleaners during the Respondent's period of absence indicates that the difficult relationships between the cleaners may not have been solely a result of the Respondent's presence, but likely the result of other personality clashes amongst the group including the Applicant.

12. [68]
    After listening to the Applicant give evidence, it seemed to me that the Applicant was   less concerned about her future working relationship with the Respondent and was instead focussed on retribution for what she viewed as disrespectful behaviour. The Applicant stated the following in evidence: 

We are here in the court now, so – I wish that I get my justice in here and I deserve to get respect likely Kelly Holt do. She need a lesson. She need someone kick his [sic] arse.^[43]

12. [69]
    In addition to the reasons outlined above, I do not consider that the Respondent has repeatedly behaved unreasonably towards the Applicant in part due to the contributory conduct by the Applicant. As noted in Burbeck v Alice Springs Town Council^[44] the presence of contributory behaviour inevitably tempers consideration of what may be done about the conduct. I do not consider that the Respondent has engaged in repeated unreasonable behaviour, and where I have accepted that the Respondent's behaviour was unreasonable,^[45] there was evidence that the Applicant's conduct contributed to the behaviour.

12. [70]
    The Act requires consideration of s 272 and s 275 when considering whether to make an order to prevent an employee from being bullied in the workplace. Section 272 provides that an employee is bullied in the workplace if an individual or group of individuals repeatedly behaves unreasonably towards the employee or a group of employees of which the employee is a member, and that behaviour creates a risk to the health and safety of the employee.  On the basis that I do not consider that the Respondent repeatedly behaved unreasonably towards the Applicant, it follows that the Applicant has not been bullied in the workplace. Any risk to the psychological health and safety of the Applicant is likely a result of the Applicant’s perception of being bullied and the ongoing tension between the parties rather than any objectively unreasonable conduct by the Respondent. Having considered that the Applicant has not been bullied pursuant to s 272, it is not necessary to consider s 275.

12. [71]
    Finally, it appears that the Department has taken a number of actions to address the difficult relationship between the parties. In my view further training with respect to appropriate workplace communication and resilience may be helpful for both parties. I also note that parties might be reminded that failure to comply with the relevant code of conduct with respect to communication with colleagues may give rise to performance management and disciplinary processes.

Conclusion

12. [72]
    I have considered all the evidence in this matter and determined that the Applicant has not established that the Respondent has engaged in repeated unreasonable behaviour toward her. I am therefore not satisfied that the Applicant has been bullied in the workplace by the Respondent.

Order

12. [73]
    I make the following order:

The  application for an order to stop bullying is dismissed.