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  4. Watton v TAFE Queensland (No. 3) - [2023] QIRC 303

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Watton v TAFE Queensland (No. 3)[2023] QIRC 303

Watton v TAFE Queensland (No. 3)[2023] QIRC 303

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Watton v TAFE Queensland (No. 3) [2023] QIRC 303

PARTIES:

Watton, Rodney Peter

(Applicant)

v

TAFE Queensland

(Respondent)

CASE NOS.:

B/2021/1 and GP/2021/11

PROCEEDING:

Application to stop bullying

Application to deal with a dispute

DELIVERED ON:

Orders issued on 13 October 2023 with reasons delivered on 19 October 2023

MEMBER

Hartigan DP

HEARD AT:

Brisbane

HEARING DATE

13, 14, 15 and 16 September 2021 and 10 December 2021

ORDERS:

  1. That the application in matter B/2021/1 is dismissed.
  1. That the application in matter GP/2021/11 is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – BULLYING – application for an order to stop bullying pursuant to s 275 of the Industrial Relations Act 2016 – where applicant believes he has been bullied in the workplace pursuant to s 272 of the Industrial Relations Act 2016 – where applicant claims he has been bullied by way of a campaign to harm, single-out, humiliate and discriminate – where perceived campaign of ostracisation – where independent workplace investigation into applicant's complaints and allegations – where applicant's complaints were not substantiated – where respondent's complaints against the applicant were substantiated – where respondent issued written warning to applicant – where respondent denies applicant has been bullied in the workplace – whether applicant has been bullied in the workplace or will continue to be bullied in the workplace – application dismissed

INDUSTRIAL LAW – QUEENSLAND – GENERAL PROTECTIONS – application to deal with a dispute pursuant to s 309 of the Industrial Relations Act 2016 – whether adverse action – where applicant claims investigation into applicant's conduct was adverse action taken against him for exercising his workplace right to lodge a workplace bullying complaint – where applicant claims workplace investigation was unreasonable management action – where respondent submits applicant makes no proper allegation of adverse action – where respondent submits the evidence shows that no adverse action was taken against the applicant for any prohibited reason – application dismissed

LEGISLATION:

Industrial Relations Act 2016, s 273, s 275, s 282, s 284, s 285, s 287, s 288, s 306, s 309, s 314

CASES:

Appellant v Respondent (2015) 249 IR 142

Australian Building and Construction Commissioner v Hall (2018) 277 IR 7

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FLA 525

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500

Campbell v State of Queensland (Department of Justice and Attorney General) [2019] ICQ 18

Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243

Gilbert v Metro North Hospital and Health Service & Ors [2021] QIRC 255

Greenall v State of Queensland (Queensland Corrective Services) [2021] QIRC 264

Jones v Queensland Tertiary Admissions Centre Ltd (No 2) FCA 399

Mac v Bank of Queensland (2015) 247 IR 274

Ms SB [2014] FWC 2104

Police Federations of Australia v Nixon [2008] FCA 467

Re SB (2014) 244 IR 127

United Firefighters Union of Australia v Easy  [2013] FCA 763

APPEARANCES

Mr R. Watton, the Applicant

Mr E. Shorten, Counsel, instructed by Crown Law, for the Respondent

INDEX

1 Introduction7

2 Relevant background8

3 The evidence15

4 The bullying application16

4.1 The relevant statutory framework and general principles16

4.2 The behaviour is by an individual or group of individuals who repeatedly behave unreasonably towards

the employee or a group of employees of which the employee is a member.17

4.3 The behaviour creates a risk of health and safety to the employee.17

4.4 Reasonable management action carried out in a reasonable manner18

5 The bullying allegations20

5.1 Bullying allegation one: In March 2018, Ms Salmond removed the Applicant from teaching in the BCET.20

5.2. Bullying allegation two: in April 2018, Ms Salmond failed to address a rumour about removing CET

teachers who did not hold a civil engineering qualification from the ADCE.22

5.3. Bullying allegation 3: In May 2018, Ms Salmond advised her students that she did not like the Applicant’s

book.23

5.4. Bullying allegation four: In June 2018, Ms Salmond stated that there are “CET members using TAFE as a

safety net and this needs to stop”.24

5.5. Bullying allegation five: In June 2018, both Ms Salmond and Dr Beasley excluded the Applicant from the

ADCE course review and inadequately consulted.25

5.6. Bullying allegation six: In July 2018, Ms Salmond directed the Applicant to work out side the CET.27

5.7. Bullying allegation seven: In 2018, Ms Salmond questioned the Applicant regarding his law degree.29

5.8. Bullying allegation eight:  In 2018, Ms Salmond failed to provide the Applicant with proper information

about the Applicant’s required professional development or provide any support.30

5.9. Bullying allegation nine – Dr Beasley made inflammatory remarks about the Applicant in his submission

to the ADCE Curriculum Review.30

5.10. Bullying allegation 10 – that Dr Beasley was openly opposed to the BCET33

5.11. Bullying allegation 11 – the Applicant was asked to monitor the class for mobile phone use34

5.12. Bullying allegation 12 – that in January 2019 the Applicant requested an alternate workstation.34

5.13. Bullying allegation 13: discrimination in comparison to other CET members in respect of the expectations

and support provided with respect to his professional development.35

5.14. Bullying allegation 14 – that there was "ganging up" toward the Applicant by investigating Ms Salmond's

concerns about him.35

5.15. Bullying allegation 15 – Ms Salmond attempted to "adjust the project management unit… so as to make it

more difficult for the Applicant to recommence teaching the unit".36

6 Conclusion with respect to the bullying application37

7 The adverse action application37

7.1 The relevant statutory framework and general principles37

7.2 ''Workplace Right''39

7.3 When adverse action taken ''because'' of a prohibited reason40

7.4 Onus of proof41

8 The adverse action allegations42

8.1 Adverse action allegation one: that Ms Salmond complained about the Applicant and the Respondent

decided to accept and investigate Ms Salmon's complaint because the Applicant made his bullying complaint.43

8.2. Adverse action allegation two: That Dr Heim removed the applicant from teaching Project Management in

October 2019 because he had made his bullying complaint.44

8.3. Adverse action allegation three: That threats were made to the Applicant’s substantive position.48

8.4. Adverse action allegation four: That the Respondent issued the final warning because of the Applicant’s

bullying complaint.49

8.5. Adverse action allegation five: That Dr Heim refused to provide the “necessary information” or support

“professional development that would support the Applicant’s teaching project management.52

8.6. Adverse action allegation six:  that Dr Heim changed the teaching criteria to prevent the Applicant from

teaching project management.54

8.7. Adverse action allegation seven: That the new teaching criteria was discriminatorily applied to the

Applicant.55

8.8. Adverse action allegation eight:  that Dr Heim failed to redeploy the Applicant.56

8.9. Adverse action allegation nine: that the Applicant was coerced into withdrawing his bullying application

B/2019/62.57

8.10. Adverse action allegation ten: that Dr Heim advised the Applicant that he would be assisting the business

and law teams.59

8.11. Adverse action allegation eleven:  that Dr Heim exerted under influence regarding “unnecessary

professional development”60

8.12. Adverse action allegation twelve:  that Dr Heim did not grant the Applicant’s request to teach project

management in late 202061

8.13. Adverse action allegation thirteen: Dr Heim’s email in January 2021 to ask the Applicant to demonstrate

qualifications.63

9 Conclusion with respect to the adverse action application64

10 Order64

Reasons for Decision

  1. 1
    Introduction
  1. [1]
    Mr Watton ('the Applicant') applies for an order to stop bullying ('the bullying application') pursuant to Chapter 7 of the Industrial Relations Act 2016 (Qld) ('the IR Act')[1] and a general protections application ('the adverse action application') pursuant to Chapter 8, Part 1 of the IR Act.[2]
  1. [2]
    The applications are said to arise from a catalogue of incidents, some of which have their genesis dating back to 2018, that are alleged to have occurred involving the Applicant in his workplace at TAFE Queensland ('the Respondent'). The Applicant remains employed by the Respondent.
  1. [3]
    With respect to the bullying application, the Applicant relies on allegations with respect to a colleague, Ms Salmond and allegations with respect to a colleague Dr Beasley. The allegations relate to behaviour said to have largely occurred in 2018.[3]
  1. [4]
    With respect to the adverse action application, the Applicant relies on 13 alleged incidents of adverse action.
  1. [5]
    The Applicant seeks relief in the following terms:[4]
  1. (a)
    an order to protect the Applicant against workplace bullying and adverse action;
  1. (b)
    an order reinstating the Applicant to his substantive full-time teaching position;
  1. (c)
    an order expunging the investigation and disciplinary action taken against the Applicant by the Respondent;
  1. (d)
    an order compensating the Applicant for the Applicant's lost leave entitlements; and
  1. (e)
    an order to reimburse the Applicant an amount of $30,394.84, equivalent to:
  1. 50% of the Applicant's professional development costs, $19,046.00; and
  2. the Applicant's unnecessary industry release expenses of $11,348.84.
  1. [6]
    The Respondent submits the Applicant has not established that he was "bullied in the workplace" within the meaning of s 272 of the IR Act nor has he made any proper or sustainable allegation of adverse action taken by the Respondent contrary to Chapter 8, Part 1 of the IR Act.  The Respondent seeks orders that the applications be dismissed.[5]
  1. [7]
    Before addressing the substance of the bullying application and the adverse action application it is convenient to provide a factual summary of matters material to the allegations to provide context to my consideration further below.
  1. 2
    Relevant background
  1. [8]
    The Applicant commenced employment as a Teacher at the Southbank Institute of Technology (now known as TAFE Queensland Brisbane)[6] on a casual basis in July 2009.
  1. [9]
    On 10 February 2011, the Applicant was appointed to the position of Teacher - Step 1 pursuant to the TAFE Teachers Award - State 2003 and the (TAFE) Department of Education and Training TAFE Educational Employees Certified Agreement 2009 on a temporary part-time basis.
  1. [10]
    On 14 December 2015, the Applicant was converted to a permanent full-time employee as a Teacher within the Respondent's Civil Engineering Business unit.
  1. [11]
    From 1 January 2016, the Applicant performed the role of Lecturer in Civil Engineering within the Faculty of Applied Science and Business with the Respondent, teaching units within the Associate Degree of Civil Engineering ('ADCE').
  1. [12]
    In October 2016, the Applicant was tasked with writing a communication and implementation plan for a Bachelor of Civil Engineering and Technology ('BCET'), to be delivered by the Respondent in partnership with the University of Canberra ('UC').
  1. [13]
    The Applicant initially performed the functions of the Course Co-ordinator for the BCET.  In November 2017, the Course Coordinator role was transferred to Ms Indunil Jayatilake, Senior Lecturer of Civil Engineering.
  1. [14]
    In February 2018, the BCET commenced its first semester. Relevant to the commencement of the BCET, the Applicant states that:
  1. in 2016, at a meeting with the Dean of Higher Education, Dr Wells, and the then Civil Engineering Team Manager, Mr Adcock, the Applicant was requested to undertake the task of implementing the BCET;
  1. implementing the course required the Applicant to work with the UC to endorse units within the ADCE for inclusion in the BCET;
  1. implementing the BCET required the Applicant and Civil Engineering Team Manager, Mr Adcock to undertake a team skills analysis to determine if the current team had the required academic knowledge to teach the new course.  This analysis revealed that additional knowledge was required in building information technology and contract management, resulting in Mr Adcock determining to undertake studies in building information technology and the Applicant determining that he would study law; and
  1. the then ADCE Course Coordinator, Dr Beasley, was openly opposed to the development and implementation of the newly developed BCET qualification.
  1. [15]
    The Respondent commenced teaching the BCET in January 2018.  The BCET was only offered by the Respondent for two semesters, after which it was discontinued.
  1. [16]
    In January 2018, Ms Jade Salmond commenced in the role of Team Manager, Civil Engineering.  As part of the Civil Engineering Team, the Applicant reports to Ms Salmond.
  1. [17]
    In 2018, the Respondent commenced a review of the ADCE in order to satisfy a requirement arising from the Tertiary Education Quality and Standards Agency ('TEQSA') accreditation of the ADCE ('the 2018 ADCE review').
  1. [18]
    The 2018 ADCE review was led by Dr Brian Heim, Director, Faculty of Applied Science and Business together with Dr Ian Wells, Dean of Higher Education and Dr Paul Wilson, an Engineer and General Manager of the Respondent. Dr Heim, Dr Wells and Dr Wilson formed the Steering Committee for the review.  Dr Heim and Dr Wells established three sub-committees: the Quality, Course Structure Review and Delivery sub-committees.  Ms Salmond was appointed chair of the Delivery sub-committee, which was tasked with reviewing the way in which the ADCE was delivered to students.
  1. [19]
    It is common ground that the Applicant was not a member of one of the three ADCE review sub-committees.
  1. [20]
    As part of the 2018 ADCE review, staffing models were scrutinised to determine:
  1. the number of full-time equivalent teaching staff required to teach units in the course; and
  1. the qualifications and experience needed to teach the program.
  1. [21]
    Each sub-committee developed a plan for consultation.  Consultation was undertaken.  Relevantly, the Delivery sub-committee sought feedback, including inter alia by e-mail on 6 August 2018.  Subsequently, each sub-committee submitted its recommendations back to the Steering Committee.  Final recommendations were then made by the Steering Committee and sent to Dr Wilson who was the ultimate decision-maker.
  1. [22]
    Following the 2018 ADCE review, the Respondent determined to increase its focus on ensuring that teaching staff had demonstrated practical industry experience in the units that they taught ('the Practical Experience Requirement'), in order to improve the quality of the ADCE.
  1. [23]
    In December 2018, the Applicant lodged a complaint with the Respondent alleging bullying by Ms Salmond and a co-worker, Dr Allan Beasley, Course Coordinator, Civil Engineering in respect of the 2018 ADCE review and the Applicant's subsequent teaching allocations, which he perceived as a campaign of ostracization.
  1. [24]
    In February 2019, Ms Salmond lodged a complaint alleging workplace bullying in respect of several interactions involving the Applicant.
  1. [25]
    On or around 14 February 2019, the Applicant commenced an extended period of sick leave.[7]
  1. [26]
    In February 2019, the Respondent engaged Ms Angela Petie, Workplace Consultant ('the Investigator') to investigate the Applicant's complaints, Ms Salmond's complaints and whether there was a broader problem of bullying and harassment within the Civil Engineering team ('the Investigation'). The following allegations were considered as part of the Investigation:
  1. in around March 2018, Ms Salmond removed the Applicant from teaching the BCET course;
  1. in April 2018, Ms Salmond failed to address a rumour about removing all teaching team members in the Civil Engineering team who do not have civil engineering qualifications;
  1. in May 2018, Ms Salmond told a student or a class that she did not like the Applicant's textbook;
  1. in around June 2018, before a Civil Engineering team meeting, Ms Salmond said words to the effect ''there are several members of the team that are using TAFE as a safety net, and this needs to stop'';
  1. from June 2018, the Applicant and all other Leading Vocational Teachers (LVTs) who do not hold a civil engineering qualification were excluded (by Ms Salmond) from being appointed to any of the ADCE course review sub- committees and were not adequately consulted through the review process;
  1. in July 2018, Ms Salmond attempted to direct the Applicant to work outside the Civil Engineering Team;
  1. during 2018, Ms Salmond repeatedly questioned the Applicant's intentions upon finishing his law degree, and this was unreasonable;
  1. during 2018, Ms Salmond failed to provide the Applicant with information about, or discuss with him, his entitlement to have paid time off work in which to complete his law study, and this was unreasonable;
  1. from June 2018, the Applicant and all other LVTs who do not hold a civil engineering qualification, were excluded (by Dr Beasley) from being appointed to any of the ADCE course review sub-committees and were not adequately consulted through the review process;
  1. in his submission to the Curriculum Review of the ADCE, Dr Beasley made inflammatory remarks which implied that senior members of the Civil Engineering Team (including the Applicant) were not suitably qualified or experienced to teach project management;
  1. on 13 July 2018, in a telephone conversation with Ms Salmond, the Applicant was disrespectful towards Ms Salmond;
  1. on 22 November 2018, the Applicant and Mr Tom Grice made disrespectful comments about Dr Beasley in front of Ms Salmond, Mr Don Robertson and Mr Michael Adcock;
  1. around 12 December 2018, the Applicant told Mr Pieter de Wet that Ms Salmond said he was using TAFE as a safety net.  This was not true, it undermined Ms Salmond and it was not respectful or appropriate;  and
  1. over the last few years, at various times, the Applicant and Mr Grice have made disrespectful comments about Dr Beasley to other staff.
  1. [27]
    On 15 March 2019, the Investigator delivered a report which relevantly found that:
  1. the Applicant's complaints against Ms Salmond and Dr Beasley were not substantiated; and
  1. Ms Salmond's complaints against the Applicant were substantiated.
  1. [28]
    On 9 April 2019, the Respondent, through Dr Paul Wilson, General Manager, issued the Applicant a Notice to Show Cause on the basis that the following allegations against him had been substantiated:
  1. on 22 November 2017, that the Applicant had made disrespectful comments about Dr Beasley in front of other TAFE Queensland employees;
  1. on 13 July 2018, in a telephone conversation with Ms Salmond, the Applicant was disrespectful towards her when she was attempting to resolve a deficit in the Applicant's teaching hours caused by a smaller cohort of students;
  1. around 12 December 2018, the Applicant told Mr Pieter de Wet that Ms Salmond said he was [sic] TAFE as a safety NET.  This was not true, it undermined Ms Salmond and it was not respectful or appropriate; and
  1. over the last few years, at various times the Applicant made disrespectful remarks about Dr Beasley to other employees of the Respondent.
  1. [29]
    On 15 April 2019, the Applicant responded to the Notice to Show Cause.
  1. [30]
    On 23 April 2019, the Respondent through Dr Wilson issued to the Applicant a final warning in respect of the substantiated complaints against him ('the Final Warning').
  1. [31]
    On 28 October 2019, the Applicant lodged an application with the QIRC for an order to stop bullying pursuant to s 275 of the IR Act. A conference was held before the QIRC on 1 November 2019.
  1. [32]
    On 5 November 2019, the Respondent, pursuant to an agreement reached with the Applicant on 1 November 2019, sent correspondence reducing the Final Warning to a 'written warning' and the QIRC application lodged on 28 October 2019 was subsequently discontinued.
  1. [33]
    On 8 November 2019, the Applicant and Dr Heim met to discuss the Applicant's teaching allocation for Semester One, 2020. The Applicant requested, and Dr Heim agreed to the request, that the Applicant take a half workload as leave until the end of Semester One, 2020 to enable the Applicant to complete his Bachelor of Laws.
  1. [34]
    On 11 March 2020, the Applicant and Dr Heim met to discuss the Applicant's teaching allocation for Semester two, 2020. The Applicant advised that he wished to be allocated to teach the CEA202 Project Management and was happy to undertake professional development to achieve that goal. Dr Heim responded that he would not be allocated to teach CEA202 Project Management in Semester Two, 2020.
  1. [35]
    On 7 April 2020, Ms Heather Morgan (Director, People and Culture) wrote to the Applicant:
  1. advising that recent enterprise bargaining negotiations introduced several Higher Education classifications into coverage of the TAFE Queensland Educators Certified Agreement 2019 ('the 2019 Agreement') and the TAFE Queensland Award - State 2016 ('the Award');
  1. offering him a permanent appointment to the role of Lecturer - Step 4 on a full-time basis (36.25 hours per week) effective from 4 May 2020; and
  1. requesting the Applicant sign a copy of the letter of offer and return it to her.
  1. [36]
    On 8 April 2020, the Applicant accepted the offer by signing and returning the letter of offer.
  1. [37]
    In May 2020, the Applicant requested, and was subsequently permitted, to take on the Recognised Prior Learning ('RPL') Coordinator Role for BCET, leading the assessment process of student's applications for a credit of units based on their prior experience.
  1. [38]
    On 31 August 2020, the Applicant emailed Dr Heim advising that he had applied for two industry release project management positions that would require Dr Heim's support for the Applicant to undertake.
  1. [39]
    On 31 August 2020, Dr Heim responded to the Applicant by email confirming that he supported the Applicant's request for an industry release. However, he also noted, "that said and for transparency and clarity, taking on a project management position would not necessarily mean that you would be the preferred candidate to teach the Project Management unit in CivilEng upon your return".
  1. [40]
    On 6 October 2020, the Applicant commenced a four month contract with Gladstone Regional Council ('GRC') as a Strategic Project Business Partner.
  1. [41]
    From 18 November 2020, the Applicant acted in higher duties as a Strategic Project Specialist at GRC until January 2021.
  1. [42]
    On 23 November 2020, the GRC requested the Applicant extend his contract.
  1. [43]
    On 24 November 2020, after receiving a request from the Applicant to extend the contract with GRC, Dr Heim confirmed an in principle agreement for the extension.
  1. [44]
    On 30 November 2020, the Applicant emailed Dr Heim and enquired if he could teach the Project Management unit upon his return from the GRC.
  1. [45]
    On 30 November 2020, Dr Heim responded to the Applicant and responded "no" to the request to teach the Project Management unit on his return on the basis that the Respondent has engaged someone who is "better experientially qualified than you to teach it".
  1. [46]
    On 3 December 2020, the Applicant emailed Dr Heim and advised that he would not be undertaking a further extension of the contract with GRC and would return to the Respondent on 1 February 2021.
  1. [47]
    On 10 May 2021, the Applicant commenced a subsequent temporary position with Western Downs Regional Council as a Project Manager, which expired on 10 November 2021. 
  1. [48]
    It follows from the above, that the Applicant's applications encompass a range of grievances relating to the 2018 ADCE Review, the Investigation, the Final Warning and his teaching allocations.  At the heart of the matter is the Applicant's desire to teach Project Management in the ADCE.
  1. [49]
    Mr Sprong took over the Project Management unit when the Applicant went on extended sick leave in February 2019. The Applicant is aggrieved that he has not been allocated to teach the unit again. The Respondent contends that this is because:
  1. the Applicant has no entitlement to teach the Project Management unit in the ADCE; and
  1. Mr Sprong more favourably meets the Practical Experience Requirement than the Applicant.
  1. [50]
    The Respondent further contends that the Applicant knew that when he applied for his role that he was required to commit to self‑development and to maintain current or recent practical industry experience in the civil engineering industry.[8]  The Respondent states that it expected the Applicant to keep developing his capacity to teach.[9]  Despite that, after more than a decade with the Respondent, the Applicant still has essentially no practical project management experience in the civil engineering industry. The Respondent draws a comparison with Mr Sprong who has almost 40 years of the necessary industry experience.
  1. [51]
    The Respondent states that it has proposed various other duties for the Applicant, including within VET courses, however none have been acceptable to the Applicant. The Respondent contends that this is despite the Applicant:
  1. knowing that he might be asked to work across a range of levels and programs;[10]
  1. upon appointment to his current role of Lecturer, was explicitly told that he may be required to 'teach into Vocational Education and Training courses, where qualification and skills requirements are met'.[11]
  1. [52]
    The Applicant remains employed with the Respondent.
  1. 3
    The evidence
  1. [53]
    The Commission heard evidence from 12 witnesses.
  1. [54]
    The Applicant gave evidence himself and also called:
  1. Mr Tom Grice, a lecturer with the Respondent within the Civil Engineering Team;
  1. Mr Michael Adcock, a lecturer with the Respondent within the Civil Engineering Team; and
  1. Mr John Sandercock, Associate Lecturer with the Respondent within the Civil and Engineering Team.
  1. [55]
    The Respondent called the following witnesses:
  1. Ms Jade Salmond, Team Manager, Civil Engineering Team;
  1. Ms Indunil Jayatilake, Course Coordinator, Associate Degree of Civil Engineering;
  1. Dr Ian Wells, formerly Dean of Higher Education of the Respondent;
  1. Dr Allan Beasley, Senior Lecturer, Civil Engineering Team;
  1. Dr Paul Wilson, formerly General Manager of the Respondent;
  1. Ms Angela Petie, Workplace Consultant;
  1. Dr Brian Heim, Acting General Manager of the Respondent; and
  1. Ms Heather Morgan, Director, People and Culture with the Respondent. 
  1. 4
    The bullying application
  1. 4.1
    The relevant statutory framework and general principles
  1. [56]
    Chapter 7 of the IR Act deals with employees who are bullied in the workplace. This chapter confers jurisdiction on the Commission to deal with bullying in the workplace. Section 272 of the IR Act is set out in the following terms:

272 When is an employee bullied in the workplace

  1. An employee is bullied in the workplace if -
  1. while the employee is at work, an individual or group of individuals repeatedly behaves unreasonably towards -
  1. the employee; or
  1. a group of employees of which the employee is a member; and
  1. that behaviour creates a risk to the health and safety of the employee.
  1. To remove any doubt, it is declared that subsection (1) does not apply to reasonable management action carried out in a reasonable manner.
  1. [57]
    Accordingly, the elements of s 272 of the IR Act that must be established in order to find that an applicant has been bullied at work are as follows:
  1. the applicant is an employee for the purpose of Ch. 7 of the IR Act;
  2. the behaviour occurred while the employee is at work;
  3. the behaviour is by an individual or group of individuals who repeatedly behave unreasonably towards the employee or a group of employees of which the employee is a member;
  4. the behaviour creates a risk of health and safety to the employee; and
  5. the behaviour is not reasonable management action carried out in a reasonable manner.
  1. [58]
    All of the elements of s 272 of the IR Act must be read together. The consequential issue to be determined by the Commission is whether an individual or group of individuals have repeatedly behaved unreasonably towards an applicant and whether that behaviour created a risk to health and safety.[12]
  1. [59]
    In this proceeding, the elements of s 272 referred to in subparagraph [57](a) and [57](b) above are not in dispute. Accordingly, I will have regard to the elements referred to in subparagraph, [54](c), [54](d) and [54](e) above.
  1. 4.2
    The behaviour is by an individual or group of individuals who repeatedly behave unreasonably towards the employee or a group of employees of which the employee is a member.
  1. [60]
    This element requires consideration of what the behaviour is and whether the behaviour is unreasonable. In Mac v Bank of Queensland[13] Hatcher VP, (as his Honour then was) set out a range of behaviours as to what might constitute unreasonable behaviour in the context of alleged bullying matters. Examples of the non-exhaustive list of all behaviours referred to in Mac included[14] intimidation, coercion, threats, humiliation, shouting, sarcasms, victimisation, singling-out, verbal abuse, physical abuse, emotional abuse, bad faith, conspiracy to harm, isolation and freezing-out.
  1. [61]
    Consideration of what amounts to unreasonable behaviour requires the application of an objective test. That is unreasonable behaviour is behaviour that a reasonable person having regard to the circumstances may consider to be unreasonable.[15]
  1. [62]
    The concept of engaging in repeated unreasonable behaviour implies that conduct that only occurs once will not amount to bullying. However, that does not mean that specific behaviour must be repeated to amount to bullying if it can be established that a range of behaviours have been engaged in that amount to repeated unreasonable behaviour.
  1. 4.3
    The behaviour creates a risk of health and safety to the employee.
  1. [63]
    This element was considered in Re SB[16] as follows:
  1. [44]
    The unreasonable behaviour must also create a risk to health and safety. Therefore there must be a causal link between the behaviour and the risk to health and safety. Cases on causation in other contexts suggest that the behaviour does not have to be the only cause of the risk, provided that it was a substantial cause of the risk viewed in a common sense and practical way. This would seem to be equally applicable here.
  2. [45]
    A risk to health and safety means the possibility of danger to health and safety, and is not confined to actual danger to health and safety.  The ordinary meaning of ‘risk’ is exposure to the chance of injury or loss. In the sense used in this provision, the risk must also be real and not simply conceptual.

(citations omitted)

  1. [64]
    Accordingly, it is clear that a causal link must be established between the behaviour and the risk to health and safety and that the behaviour need not be the only cause of risk provided it can be established that it was a substantial cause.
  1. 4.4
    Reasonable management action carried out in a reasonable manner
  1. [65]
    The effect of s 272 of the IR Act is that behaviour that amounts to unreasonable management action carried out in a reasonable manner will not constitute bullying behaviour for the purpose of s 272(2) on the IR Act.
  1. [66]
    In consideration of the equivalent provision in the federal jurisdiction, in Re SB, Commission Hampton stated the test as follows:[17]
  1. [49]
    Determining whether management action is reasonable requires an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time. Without limiting that assessment, the considerations might include:
  • the circumstances that led to and created the need for the management action to be taken;
  • the circumstances while the management action was being taken; and
  • the consequences that flowed from the management action. 
  1. [50]
    The specific ‘attributes and circumstances’ of the situation including the emotional state and psychological health of the worker involved may also be relevant. 
  2. [51]
    The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’.  In general terms this is likely to mean that:
  • management actions do not need to be perfect or ideal to be considered reasonable;
  • a course of action may still be ‘reasonable action’ even if particular steps are not;
  • to be considered reasonable, the action must also be lawful and not be ‘irrational, absurd or ridiculous’; 
  • any ‘unreasonableness’ must arise from the actual management action in question, rather than the applicant’s perception of it; and
  • consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances. 
  1. [52]
    For the circumstances in s. 789FD(2) of the FW Act to apply, the management action must also be carried out in a ‘reasonable manner’. Consistent with the approach above, what is ‘reasonable’ is a question of fact and the test is an objective one.
  2. [53]
    Whether the management action was taken in a reasonable manner may depend on the action, the facts and circumstances giving rise to the requirement for action, the way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters.

(citations omitted).

  1. [67]
    The Commission is not required to set out a point-by-point merits review of each aspect of the behaviour complained about, the task is to consider the evidence and determine whether assessed objectively, there was bullying behaviour and whether it comprised no more than reasonable management action carried out in a reasonable manner.[18]
  1. [68]
    Upon receiving an application filed by an employee[19], the Commission may, pursuant to s 275, make orders to stop bullying as follows:

275Commission may make orders to stop bullying

  1. This section applies if -
  1. an employee has made an application under section 273; and
  1. the commission is satisfied that -
  1. the employee has been bullied in the workplace; and
  1. there is a risk that the employee will continue to be bullied in the workplace.
  1. 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.
  1. In considering the terms of an order, the commission must take into account -
  1. 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
  1. if the commission is aware of any procedure available to the employee to resolve grievances or disputes - that procedure; and
  1. 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
  1. any other matter the commission considers relevant.
  1. [69]
    Section 275 of the IR Act relevantly provides that 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, if satisfied:
  1. a.
    the employee has been bullied in the workplace; and
  1. b.
    there is a risk that the employee will continue to be bullied in the workplace.
  1. [70]
    In Campbell v State of Queensland (Department of Justice and Attorney General)[20] the Court considered, when having regard to s 275(1)(b)(ii) of the IR Act, that the Commission was required to consider the risk to the employee at the time the application was made. Relevantly, the Court determined as follows:[21]
  1. [46]
    The notion of risk connotes exposure to the chance of injury or loss – it contemplates the possibility of a future occurrence. That said, “risk must also be real and not simply conceptual.”
  2. [47]
    When considering risk to an absent employee at the time the Commission is hearing a s 273 application the Commission can, in appropriate circumstances, consider what will occur when the employee returns to the workplace. The distinction relied on by the appellant is artificial.
  3. [48]
    If an employee who has been bullied is temporarily absent from their workplace it may be reasonable to find a risk that, on their imminent return, bullying will continue. Evidence may be tendered to this effect. Nothing in the wording of s 273 of the Act necessarily precludes the Commission from making such a finding if the existence of risk is considered from the time at which the application is made or considered.
  4. [49]
    However, the appellant presents an altogether different case. Hers is one where the last alleged incident of bullying occurred some six months before the appellant filed her application, and some nine months before the respondent’s application to dismiss was heard. Even if she had remained in the workplace, it would have been contentious whether there was any risk of bullying continuing as at either of these dates.

(citations omitted).

  1. 5
    The bullying allegations
  1. [71]
    The bullying allegations include allegations dating back to 2018. A portion of the allegations formed part of the Applicant's bullying complaint which was originally investigated by the Investigator and found to be not substantiated. The Applicant attempts to ventilate those complaints again in this proceeding.
  1. [72]
    It should be noted that the Applicant previously filed an order to stop bullying in the QIRC on 28 October 2019. That application had a greater temporal connection to the complaints and the Investigation than the current application. After a conference, and the taking of steps by the Respondent to withdraw the Final Warning and replacing it with a written warning, the 28 October 2019 application was discontinued by the parties.

5.1Bullying allegation one: In March 2018, Ms Salmond removed the Applicant from teaching in the BCET.

  1. [73]
    By way of background, the Respondent, in partnership with the UC, commenced offering the BCET course in 2018.
  1. [74]
    Initially the Applicant was appointed as the BCET Course Coordinator. However, the TEQSA required that the role of the Course Coordinator be undertaken by someone who held formal engineering qualifications. The Applicant did not hold formal engineering qualifications.
  1. [75]
    Consequently, in November 2017, Ms Jayatilake was offered a temporary contract of Course Coordinator. Ms Jayatilake holds a Bachelor of Civil Engineering, Master of Civil Engineering and PhD in Civil Engineering.
  1. [76]
    Students were enrolled and completed studies in the BCET course during Semester One and Semester Two in 2018. However, in mid-July 2018 a decision was made, due to the low enrolment numbers and a decrease in Commonwealth supported places, that the Respondent would cease to offer the BCET course after Semester Two, 2018.
  1. [77]
    As noted above, the BCET course was only taught during Semester One and Semester Two in 2018.
  1. [78]
    Ms Jayatilake deposes[22] that the Semester One, 2018 BCET subjects had been allocated to teaching staff other than the Applicant on the basis that the Applicant was not qualified to teach the subjects offered during that semester. Similarly, with respect to Semester Two, the Applicant was not allocated any subjects to teach as he did not have the necessary experience to teach those subjects.
  1. [79]
    It is common ground that the BCET course would not be offered by the Respondent in 2018.
  1. [80]
    I conclude based on the evidence, that the Applicant had not been allocated to teach any of the BCET course subjects for Semester One and Semester Two of 2018 and consequently there was no decision, as alleged, that the Applicant would not be teaching the two units that had been allocated to him. Further, the BCET subjects allocated to staff beyond 2018 would not be taught by anyone.
  1. [81]
    I accept that prior to the decision being made not to offer the BCET course beyond 2018, that the Applicant may have been allocated to subjects in Semesters three to six of the course. However, those allocations became otiose once the decision was made not to continue with the course.
  1. [82]
    In her evidence, Ms Salmond recalled an occasion on which Ms Jayatilake had advised that UC had sought the allocation of lecturers to subjects in the second year of the BCET course despite the decision already having been made that the BCET course would not be continued into its second year.
  1. [83]
    Ms Salmond's evidence was that whilst she could not recall the specific subjects, she requested that Ms Jayatilake place Ms Salmond's name against the subjects for the second year of the course to accord with UC's request. Her evidence was that she considered this to be an administrative measure only as she knew that the BCET course was not going to be continued.
  1. [84]
    On the evidence, I do not find that the behaviour, as alleged, occurred. Relevantly, I do not consider that the evidence supports the Applicant's contention that in March 2018 Ms Salmond removed the applicant from teaching the BCET course. The evidence is that the Applicant was not allocated units to teach in either Semester One or Semester Two, 2018. Consequently, the Applicant could not have been removed from teaching in either Semester One or Two.
  1. [85]
    Further, the allocation of Ms Salmond to teaching units in the BCET course in its second year was an administrative measure taken at the request of UC in circumstances where the decision had already been made that the course would not be taught following 2018.
  1. [86]
    In these circumstances, I consider Ms Salmond's behaviour to be reasonable and that bullying allegation two does not amount to bullying for the purpose of s 272 of the IR Act. 

5.2.Bullying allegation two: in April 2018, Ms Salmond failed to address a rumour about removing CET teachers who did not hold a civil engineering qualification from the ADCE.

  1. [87]
    The Applicant alleges that he spoke to Ms Salmond about a rumour that was allegedly circulating that all civil engineers in the team wanted to get rid of the non-civil engineers in the team. The Applicant alleges that when he spoke to Ms Salmond about the rumour that she responded by saying that she did not want to stifle free speech and would be taking no action to address the rumour.
  1. [88]
    Ms Salmond's evidence was that she recalled the Applicant speaking to her over a coffee about a rumour that he alleges several staff members wanted to remove teachers that did not hold civil engineering qualifications. Whilst the Applicant did not state the names of those whom he considered started the rumour he pointed to H block and said words to the effect that "a certain person would like that to be the case". Ms Salmond states that she made an assumption that the Applicant was referring to Dr Beasley as the Applicant had articulated his concern about Dr Beasley changing the ADCE programme on a previous occasion.
  1. [89]
    Ms Salmond states that upon receiving this information from the Applicant that she undertook some informal inquiries with respect to the alleged rumour.
  1. [90]
    Ms Salmond's evidence was that she spoke to Dr Beasley and inquired as to whether he had made any comments of the nature suggested by the Applicant. Dr Beasley's response was that the only conversation he can recall was about the Structural Design and Drafting 2 unit during which he recalled commenting to the effect that "it was a complex subject and would be challenging to teach for someone who was not a structural/civil engineer". 
  1. [91]
    In addition to speaking to Dr Beasley, Ms Salmond's evidence was that she then questioned other team members about the rumour.  She stated that she found that no current staff members had stated the rumour or had heard of any conversation where it was discussed,
  1. [92]
    Ms Salmond states that during her enquiries she was told about an historical statement allegedly made by a former staff member that was to the same effect of the rumour but that she was unable to form a view about whether the historical statement had been said or not.
  1. [93]
    Ms Salmond stated that after making the inquiries she reported back to the Applicant and advised that she had spoken to Dr Beasley and other staff members and that they were unaware of the rumour he had heard.
  1. [94]
    Ms Salmond's evidence was that given the lack of evidence about the alleged rumour she determined to take the matter no further.
  1. [95]
    I accept Ms Salmond's evidence as credible and reliable.
  1. [96]
    Further, I accept Ms Salmond's evidence, that was not disturbed during cross-examination, as to the steps she took following the Applicant's complaint about the rumour.  I consider that the steps taken including commencing an informal investigation and making enquiries of various staff members about a rumour from an unknown source to be appropriate and reasonable.  Further, I consider that it was reasonable and appropriate for Ms Salmond to determine to take no further steps following the failure to identify the source of the rumour or any substantiation of the Applicant's allegation that such a rumour was in fact circulating.  Accordingly, Ms Salmond's behaviour was reasonable and did not amount to bullying within the meaning of s 272 of the IR Act.

5.3.Bullying allegation 3: In May 2018, Ms Salmond advised her students that she did not like the Applicant’s book.

  1. [97]
    The Applicant is the author of a textbook with respect to project management. That textbook was used by him when he taught the Project Management unit. Ms Salmond took one of the tutorials for the subject. It was within this context that the Applicant alleges that Ms Salmond advised her students that she did not like the Applicant's book.
  1. [98]
    Ms Salmond's evidence was that she did not express her personal opinion about the Applicant's textbook to the class.
  1. [99]
    Ms Salmond, however, gave evidence that she was concerned that the book was difficult to understand and did not practically address "real world situations". Her evidence was that she may have expressed disagreement with some things written in the textbook as they did not apply in a real world civil engineering environment.
  1. [100]
    The Applicant did not call the student who allegedly stated that Ms Salmond did not like the Applicant's book nor did the Applicant put the allegation to Ms Salmond in cross-examination.
  1. [101]
    I have before me Ms Salmond's evidence that she denies saying the words alleged. On the basis that there is no contradictory evidence, I accept Ms Salmond's evidence in this regard. Accordingly, I find that the alleged behaviour did not occur. Consequently, I find that bullying allegation three does not support a finding of bullying within the meaning of s 272 of the IR Act.

5.4.Bullying allegation four: In June 2018, Ms Salmond stated that there are “CET members using TAFE as a safety net and this needs to stop”.

  1. [102]
    The Applicant alleges that Ms Salmond made a public statement similar to the words "there are several members of the team that are using TAFE as a safety net and this needs to stop".
  1. [103]
    Ms Salmond expressly denies the allegation.
  1. [104]
    The Applicant did not put the allegation to Ms Salmond in cross-examination. Accordingly, Ms Salmon's evidence remains undisturbed.
  1. [105]
    Further, the allegation itself, does not seem to relate to the Applicant. The Applicant must necessarily seek that an inference be drawn that the allegation was directed to him.
  1. [106]
    However, Ms Salmond states that on 12 December 2018, she received a text message from Mr Peter Dewant alleging that she had stated in a team meeting that he (Mr Dewant) had been using TAFE as a "safety net". The email is in evidence.[23]
  1. [107]
    Ms Salmond's evidence is that she contacted Mr Dewant by telephone who told her the Applicant had told him she had made the remark. The Applicant denied this under cross-examination. Given this evidence goes beyond the allegations it is unnecessary for me to determine whether the Applicant advised Mr Dewant of the alleged statement.
  1. [108]
    In the circumstances, I am not satisfied that the Applicant has established a factual foundation to conclude that the behaviour as alleged occurred. Further, I am not satisfied that even if the behaviour did occur that it could be concluded that the alleged statement was directed at the Applicant. There is no evidence that calls the allegation into question.
  1. [109]
    Accordingly, bullying allegation four does not support a finding of bullying within the meaning of s 272 of the IR Act.

5.5.Bullying allegation five: In June 2018, both Ms Salmond and Dr Beasley excluded the Applicant from the ADCE course review and inadequately consulted.

  1. [110]
    The Applicant appears to be aggrieved because he was not included on one of the sub-committees that were formed as part of the ADCE courses review. He further alleges that he was not adequately consulted as part of the review.
  1. [111]
    The allegation as stated by the Applicant relates to the alleged behaviour of Ms Salmond and Dr Beasley.[24] However, the evidence is that Dr Wilson, Dr Wells and Dr Heim allocated the positions on the sub-committee.[25] Accordingly, I am satisfied that the allegation can not be established to the extent that neither Ms Salmond or Dr Beasley determined who would be on a sub-committee.
  1. [112]
    It appears that the crux of the Applicant's contention is that the Lead Vocational Teachers ('LVT's'), including the Applicant, were excluded from the sub-committees:
  1. [113]
    Dr Wells gave direct evidence with respect to the appointment process for the sub-committees as follows:[26]
  1. In determining who to appoint to each subcommittee of the Steering Committee, I took the following matters into account:
  1. Compliance with TEQSA requirements;
  2. Cross-discplinary expertise, including expertise in teaching delivery, higher education governance and compliance;
  3. Skills mix and, in particular, experience in other roles;
  4. Providing staff with leadership opportunities. In this regard, I was aware Dr Jayatilake and Ms Rowell, who were not particularly outspoken, may benefit from an opportunity to lead;
  5. Willingness to complete the work assigned to each subcommittee; and
  6. The fact that each subcommittee was required to consult widely and invite as much discussion as possible.
  1. I never considered subcommittee appointments to be a mechanism to exclude people from participating in the ADCE Curriculum Review, including people who did not hold formal engineering qualifications. While input from staff with formal engineering qualifications was a necessary part of the ADCE curriculum review, not all staff appointed to these subcommittees held formal engineering qualifications. For example, Ms Mason, an LVT, was appointed as a consequence of his outstanding credentials as an educator. Ms Howley also held no formal engineering qualifications. She was appointed as a consequence of her expertise in higher education governance and compliance.
  1. [114]
    Dr Wells' evidence supports a conclusion that LVT's were not excluded from the sub- committees. Dr Wells' evidence remained unchallenged in this regard.
  1. [115]
    Further, Dr Wells considered that the Applicant was capable of representing his views in the consultation process as follows:[27]
  1. There were only limited positions available on the subcommittees. I attempted to ensure that there was a good cross-section of skills and experience on the subcommittees. Mr Watton was an active member of the CET and I was confident he could represent his views as part of the consultation process.
  1. [116]
    The Applicant also raises concerns that he was not adequately consulted as part of the ADCE review process.
  1. [117]
    Dr Beasley gave evidence that each sub-committee was obligated to seek feedback from various stakeholders including but not limited to academic staff.
  1. [118]
    It is not controversial that the Applicant as well as all other relevant academic staff were given an opportunity to provide feedback. Relevantly, the Applicant confirmed under cross-examination[28] that everyone in the team was provided with an opportunity to submit feedback on the sub-committee's activities and that the Applicant was one of the people who did provide feedback.
  1. [119]
    Apart from the Applicant's bald assertion otherwise, there is no evidence that he was excluded from the consultation process. Indeed, the evidence is that the Applicant was given an opportunity to provide feedback and further he took advantage of that opportunity by providing feedback.
  1. [120]
    On the evidence I find that the allegation is not substantiated. Relevantly, the sub-committees were comprised of persons who had a variety of skills and qualifications including relevantly, LVT's without a civil engineering qualification.
  1. [121]
    Further, I am satisfied that as part of the ADCE review, a process was developed with respect to consultation which invited feedback from all team members. Rather than be excluded, the Applicant was one of the team members who provided feedback.
  1. [122]
    Accordingly, bullying allegation number five as particularised by the Applicant is not substantiated. I am not satisfied that the alleged behaviour amounts to bullying within the meaning of s 272 of the IR Act.

5.6.Bullying allegation six: In July 2018, Ms Salmond directed the Applicant to work out side the CET.

  1. [123]
    The Applicant complains that Ms Salmond requested he teach the Certificate IV in Project Management in the Business Team so that she could take on one of the Project management tutorials within the CET. The Applicant also complains that Ms Salmond notified him of this on 12 July 2018 with classes to begin on 16 July 2018.
  1. [124]
    This allegation arises in the context of a reduction of classes and consequently a reduction of teaching time available to allocate to the teaching staff.
  1. [125]
    Ms Salmond gave evidence with respect to this context. Her evidence was that the issue that arose affecting the Applicant's teaching time and the steps she undertook to address the matter with the Applicant. To this end, it is convenient to include the detail of Ms Salmond's evidence[29] with respect to this allegation as follows:[30]
  1. It is generally the case there are around 2-3 classes of students with each class having between 20-30 students for each subject within Stage 3 of the program. Due to the smaller cohort of students commencing Stage 3 of the ADCE program at this point in time, there were less classes, which resulted in reduced teaching time each week.
  2. In order to maintain a full-time teaching load, a lecturer is required to have 21 hours of teaching time per week, which is a requirement pursuant ot (sic) the TAFE Queensland Award — State 2016 (the Award).
  3. This impacted the teaching hours of two other staff members being Mr John Sandercock and Ms Pria Rowell in addition to myself. Mr Sandercock taught Geoscience. Given he could only teach Geoscience, his fraction got reduced. Ms Rowell usually taught Road Design. In order to keep her fraction up to a full-time equivalent, she opted to teach the Maths subject.
  4. At this point in time, in or around July 2018, the Applicant was on leave, caring for his wife.
  5. I wanted to talk to the Applicant about his teaching allocation in person, but because he was on leave and semester 2 was about to commence, I felt that I had no other option but to talk to him about the teaching allocations over the phone.
  6. Prior to calling the Applicant, I enquired with Dr Heim about what options I could put forward to the Applicant to make up the remainder of his teaching hours. I wanted to give the Applicant a number of options, as opposed to just suggesting that he access his leave balances for the period he was not teaching.
  7. I also noted that on 9 July 2018, the Applicant had emailed me advising that after a Higher Education Quality Review, he was deemed as qualified to teach in vocational education.
  8. On 12 July 2018, I telephoned the Applicant. in that telephone conversation, I advised him there was going to be insufficient hours in his teaching schedule to make up the full-time teaching hours required by the Award.
  9. I advised him there were other options available to him to make up the remainder of his fraction until things went back to normal the following semester. These included teaching in the Certificate IV Project Management course or taking leave to make up the remainder of his fraction.
  10. The Applicant responded to me indicating he considered the proposal was unfair. He asked me to stop teaching my tutorial in the CEA202 — Project Management course and provide him with that tutorial so that he could teach two classes.
  11. I responded to him stating to the effect that it was my only civil engineering disciplined subject I was teaching and that I would prefer to remain teaching it given my passion for the subject. However, I told him that I would consider that proposal and asked for him to get back to me with other options that he considered appropriate to make up the remainder of his fraction.
  12. On 13 July 2018, I telephoned the Applicant to discuss the matter further.
  13. In that conversation, I told the Applicant that I wanted to continue to teach the one project management tutorial. I stated that he should teach the other project management tutorial and enquired what he wanted to make up the remainder of his fraction.
  14. The Applicant responded to me by stating to the effect that he thought the issue was a wedge and that it was unfair that he had to go and work in another team. The Applicant also stated that he did not consider it fair that Maddie Heins and Trent Smale from the architecture team were joining the civil engineering team to teach the 2D CAD subject.
  15. I advised the Applicant to the effect that Maddie and Trent were not teaching the 2D CAD subject and that we were utilising all of our full-time staff members. I tried to tell the Applicant he was not leaving our team and that it was an option for this semester only, but the Applicant was not letting me speak.
  16. The Applicant continued, telling me to the effect that he would be studying four subjects in his law degree that semester and supporting his wife while she underwent an eye procedure and would have no time to revamp the Certificate IV Project Management course. He stated that he considered it was an unfair request given the teaching semester commenced the following week. He said words to the effect that his job was there well before mine and it was a bad call that I had made.
  17. I reiterated that it was not a personal situation, as other staff had also been affected. The other staff affected were Pria Rowell and John Sandercock. Ms Rowell went and taught maths to make up the balance of her fraction and John Sandercock accepted a reduced fraction.
  18. The Applicant stated that he would take annual leave to give him time off but would not be at the 'beck and call' of the Respondent. He also accused me of trying to manipulate him.
  19. The Applicant started to yell at me and shortly thereafter, hung up on me.
  20. After that telephone conversation, I documented it and put it into an email to Dr Heim dated 13 July 2021. Exhibited hereto and marked as "JS-I" is a copy of that email.
  21. On 16 July 2018, I was copied into an email from the Applicant to Dr Brian Heim. In that email, the Applicant indicated he did not wish to escalate his concerns about the reduction in teaching hours and indicated he would access his leave balance to make up the remainder of his fraction. I was also copied into Dr Heim's response the following date advising the Applicant he considered his request to access leave was achievable. Exhibited hereto and marked as "JS-2" is a copy of that email together with the response.
  22. On 19 July 2018, I received an email from the Applicant indicating that he did not have access to the folder to save his teacher attendance forms. He also raised with me an enquiry about what time was allocated to recording his scholarly activities. Exhibited hereto and marked as "JS-3" is a copy of that email.
  23. There were only two classes. When teaching commenced, I found out there were only two students in the part time class for Project Management. After teaching that first class, I made arrangements to transfer those students into the full time class given the class sizes were still below the maximum class size. I only taught the 2D CAD subject that semester with Trent Sma5e.
  1. [126]
    Relevantly, it can be seen from the above evidence, that ultimately Ms Salmond did not tutor Project Management at all and further that the Applicant was not required to teach the Certificate IV. The Applicant accepted this to be the case under cross-examination.[31]
  1. [127]
    I find on the evidence that Ms Salmond offered the Applicant various options to maintain his full-time fraction, including to teach the Certificate IV Project Management or to take leave. There is no evidence that Ms Salmond directed the Applicant to work outside the CET. I am satisfied that options were put to the Applicant for discussion. This is consistent with the fact that discussions occurred with Ms Salmond and Dr Heim and is also consistent with the fact that the matter ultimately resolved by the Applicant nominating and being granted his preference to take a fraction of leave rather than teach the Certificate IV in Project Management.
  1. [128]
    On the evidence, I find that the behaviour as alleged did not occur. Further, I find that the steps that were taken were reasonable and amounted to reasonable management action taken in a reasonable way. Bullying allegation six does not support a conclusion that the alleged behaviour amounted to bullying within the meaning of s 272 of the IR Act.

5.7.Bullying allegation seven: In 2018, Ms Salmond questioned the Applicant regarding his law degree.

  1. [129]
    This allegation does not particularise the basis upon which such an inquiry could amount to bullying. In any event, this allegation is not included in the Applicant's contentions nor did the Applicant lead evidence about this allegation at the hearing.
  1. [130]
    Whilst the Applicant's written submissions include a reference to the allegation it does so seemingly in reliance on matters that were included in the Investigation Report.
  1. [131]
    The Respondent was not placed on notice that this allegation was in contention in the proceeding nor did the Applicant lead any evidence with respect to this allegation. Accordingly, as a matter of procedural fairness, it will not be dealt with further.

5.8.Bullying allegation eight:  In 2018, Ms Salmond failed to provide the Applicant with proper information about the Applicant’s required professional development or provide any support.

  1. [132]
    This allegation appears to relate to a complaint that was before the Workplace Investigator that Ms Salmond did not provide the Applicant with information or discuss with him his entitlement to have paid time-off to complete his law degree.
  1. [133]
    Whilst this matter was before the Investigator, it was not included in the Contentions in this proceeding nor did the Applicant lead evidence with respect to it. The Respondent was not placed on notice that the matter was in issue, until it was included, for the first time in this proceeding, as an allegation of bullying in the Applicant's closing submissions. As a matter of procedural fairness I will not deal with this allegation any further.

5.9.Bullying allegation nine – Dr Beasley made inflammatory remarks about the Applicant in his submission to the ADCE Curriculum Review.

  1. [134]
    This complaint appears to arise out of Dr Beasley's written feedback as part of the ADCE review. It is apparent that the Applicant perceives that the feedback contains inflammatory remarks about him.
  1. [135]
    Dr Beasley's evidence was that as the Course Coordinator he provided feedback on various aspects of the ADCE as part of the review including with respect to the unit being taught by the Applicant being CEA 202 Project Management.
  1. [136]
    Given the nature of the allegation it is necessary to consider the written submission made by Dr Beasley.
  1. [137]
    Dr Beasley made the following submissions about the general structure of the ADCE:[32]

At this point I'm aware of one serious problematic issue within the ACDE, that is the choking of the process by which the curriculum improvements can be made, to maintain the course at a contemporary, nationally benchmarked standard, delivering both work-ready and articulating graduates.

The current structure of the delivery team does not encourage open consultation or discussion of curriculum improvements to the course to effect changes, certainly not in any collegial sense. I would venture to say that a poisoned environment has developed over the last several years, with all of the interpretations that accompany that description, such as a dysfunctional organisation of the team, staff frustration and dissatisfaction, open hostility between staff, absenteeism and lack of collegiality. Senior management control has been ineffective at ameliorating these problems and the course has lagged greatly in quality improvements across the breadth of the curriculum as a result. I presume that senior management has recognised these problems, with the consequence that the civil review outcomes are more than just a tweak to the course curriculum.

Typical of the sort of exchange over curriculum content is contained in the submission to the Course Structure Committee (CSE) by T. Grice which contains what I regard as inflammatory language about the minuted business of the CSE, and of the activities of the Course Coordinator in nationally standardising the course in structural engineering. My response to the part of T. Grice's submissions follows at Attachment A. This latter attachment should be regarded as a substantial part of this submission as it outlines the justification for developing the structural engineering stream of the course. Until recently it has been quite deficient. Any well qualified structural/civil engineering educator would most likely come to the same view. Indirectly this was the case with the recent outcome of the review of CEA208 Engineering Project which emphatically endorses the structural engineering curriculum content of that unit. That content is the basis of recent improvements to CEA204 Structural Design and Drafting 1 and CEA207 Structural Design and Drafting 2.

…

  1. [138]
    Dr Beasley gave evidence with respect to his motivation for making these comments as follows:[33]
  1. I made these comments because I was broadly aware of challenges within the CET caused by a small clique of Lead Vocational Teachers, including Mr Watton. These challenges arose out of differences of opinion about the purpose of ADCE and resistance to bringing the ACDE in line with nationally benchmarked standards. Lead Vocational Teachers considered the course from a vocational perspective. Their focus was more on producing graduates with a particular skillset rather than producing graduates who could apply foundation principles to solve problems they have not met before.
  1. I found it challenging to make curriculum changes to the ACDE due to internal conflict within the CET. I wanted to alert senior management that there were problems within the team that needed resolution. There was significant hostility in the CET at the time. The hostility arose out of disagreement between CET staff about whether the ADCE should be nationally benchmarked.
  1. I was aware that students of CEA202 Project Management considered its content to be irrelevant to the knowledge required to enter the field or articulate to another degree upon graduation. Considering that feedback, I submitted that the course content needed to be taught at a level relevant to associate degree students, not at a level relevant to an industry practitioner with considerable field experience.

…

  1. [139]
    Further, Dr Beasley provided[34] the following feedback with respect to CEA202 and CEA104 as follows:
  1. In relation to CEA202 Project Management, I provided the following feedback:

It has been clear for several semesters that students regard CEA202 Project Management as being too esoteric for the level that they will be at upon graduation. I agree that the current content is at a level more relevant to an industry practitioner with 5 to 10 years' experience, not necessarily only civil engineering, who can take advantage of the concepts covered. This is a unit that requires a mature focus. It is my belief, being led clearly by student comment, by discussions with the Team Manager and other academic staff more closely interested in the content of this unit, that it needs to be reworked to a more relevant level for engineering students in an associate degree. That is, contextualised for the construction of projects, using the tools (Microsoft Project, if not already) that students are more likely to encounter in the workplace immediately upon graduation or upon articulation to University.

  1. In relation to CEA104 Engineering Practices, I provided the following feedback:

Several independent polls of Stage 4 students conducted by myself as Course Coordinator over two consecutive semesters have indicated that students regard this unit as the least relevant, by a large margin, of all units within the course (see Attachment B). I believe CEA104 needs to undertake a review to include material on environmental engineering and construction technology as indicated by the lead of the CSC, to improve its relevance to the course, and to equip students in the early stages with the language of civil engineering, which appears to be somewhat limited in the later stages.

CEA206 Environmental Engineering should be withdrawn from the course as a core unit, with CEA104 taking on some of the environmental engineering load Other units such as CEA205 Municipal Engineering, CEA209 Road and Traffic Engineering and CEA208 Engineering Project should also shoulder some of the environmental engineering content. I might point out that of the five ADCE courses benchmarked as part of the curriculum review in 2015, only one other institution included environmental studies as a full core unit in their ADCE (a common environmental studies unit), one indicated a partial unit given to environmental, one indicated an elective and in two, no curric lum in environmental engineering at all. To remove CEA206 as a core unit and prioritise the course in favour of contemporary developments such as Building Information Mode/ling is preferable to maintain course relevance.

…

  1. [140]
    Dr Beasley provided the logic for making this feedback as follows:[35]
  1. I understand Mr Watton perceived these comments to be levelled against him and implying that, if he disagreed, he was not well qualified and not collegial in his approach to teamwork. Mr Watton did not tell me this directly. I became aware Mr Watton formed this perception when I saw comments he put in writing. I do not recall where I saw the comments. I did not provide my feedback with this intent, nor were my comments directed at Mr Watton. My comments were intended as a critique of a subdiscipline in the ADCE, being the structural engineering stream. Mr Watton does not teach courses in the structural engineering stream. My comments reflected my honest views about the aspects of the ADCE which I believed could be improved as part of the review.
  1. [141]
    On a fair reading of Dr Beasley's submission there are no direct remarks about individual members of the teaching staff including any direct remarks regarding the Applicant.
  1. [142]
    Under cross-examination the Applicant stated that he inferred from Dr Beasley's statement that if you do not agree with him then you are dysfunctional.[36] The Applicant concedes that there are no words in Dr Beasley's submission that are specific to him.[37]
  1. [143]
    I accept on the terms of the written submissions together with Dr Beasley's evidence that the purpose of the submissions was to provide a critique of the ADCE and ways in which Dr Beasley considered it could be improved as part of the review. I do not consider that the submissions contained inflammatory remarks about the Applicant.
  1. [144]
    Accordingly, I find that the behaviour alleged did not occur. It follows that bullying allegation nine is not substantiated and does not support a finding of bullying within the meaning of s 272 of the IR Act.

5.10.Bullying allegation 10 – that Dr Beasley was openly opposed to the BCET

  1. [145]
    The Applicant did not address this allegation in his written submissions, however the allegation was included in his contentions.
  1. [146]
    The Respondent accepts that Dr Beasley was opposed to the BCET. It submits that Dr Beasley sets out his reasons for his opposition to the BCET in his evidence[38] and he states that he did not express his views in a disrespectful or unreasonable way. That evidence was not challenged by the Applicant during cross-examination.
  1. [147]
    It is not immediately apparent on the material how Dr Beasley's opposition to the BCET could amount to bullying against the Applicant. In order to do so indirect inferences would need to be drawn that such an opposition amounted to repeated unreasonable behaviour towards the Applicant. However, having regard to the evidence I am unable to conclude that such an inference is available to be made and further that it could fairly or reasonably be drawn.
  1. [148]
    Whilst I accept on the evidence that Dr Beasley opposed the BCET I am not satisfied that such opposition amounted to bullying of the Applicant within the meaning of s 272 of the IR Act.

5.11.Bullying allegation 11 – the Applicant was asked to monitor the class for mobile phone use

  1. [149]
    This allegation was not addressed by the Applicant in his written submissions but it did form part of his contentions.
  1. [150]
    The allegation is that the Applicant believed that a teacher who assigned him the task of monitoring the students for mobile phone use was acting at the behest of ''TQB's Senior Management… employing the Japanese Banishment Room technique".
  1. [151]
    The Applicant did not identify the context in which the allegation was said to occur including the identity of the alleged teacher who assigned him this task.[39] Further, there appears to be no factual basis upon which the allegation is based which would support a conclusion that the request was at the behest of senior management employing "the Japanese Banishment Room technique". Relevantly, under cross-examination, the Applicant confirms that it was his interpretation of the situation that led him to make the allegation.
  1. [152]
    On the material before me, I am not satisfied that the task, if it was assigned at all, was either at the behest of Senior Management or done so with the intent alleged by the Applicant. Accordingly, I am not satisfied that bullying allegation 11 supports a finding that the Applicant was subject to bullying within the meaning of s 272 of the IR Act.

5.12.Bullying allegation 12 – that in January 2019 the Applicant requested an alternate workstation.

  1. [153]
    The Applicant does not make submissions with respect to this allegation although it is included in his contentions.
  1. [154]
    It is not immediately apparent as to what is meant by "ongoing ostracization". In particular, the Applicant has not identified what he means when stating he was subjected to 'ongoing ostracization' and by whom. Although there appears to be a general statement of being excluded by members of the team. This is not particularised in any meaningful way.
  1. [155]
    In any event, the Respondent accepts that the Applicant requested[40] that he work at an alternative location at the Brisbane campus whilst his bullying complaint was being investigated.
  1. [156]
    Dr Heim responded to the Applicant's request the same day indicating "I'm happy to support your request to move to a different location".[41]
  1. [157]
    I consider Dr Heim's response to the Applicant's request to be reasonable and appropriate. I do not consider that in approving the Applicant's request in a timely manner that such behaviour could be seen to amount to bullying. I consider the conduct to be reasonable management action taken in a reasonable way.
  1. [158]
    Bullying allegation 12 does not support a conclusion that the Applicant was subjected to bullying within the meaning of s 272 of the IR Act.

5.13.Bullying allegation 13: discrimination in comparison to other CET members in respect of the expectations and support provided with respect to his professional development.

  1. [159]
    The Applicant did not address this allegation in his submissions although it is included as a contention.
  1. [160]
    It is not immediately apparent which members of the CET the Applicant is comparing himself to in order to allege discrimination. Further, the Applicant has not adduced evidence to support a conclusion that the alleged behaviour was unreasonable. In the absence of such information from the Applicant, I am not satisfied that the allegation as stated has been made out.
  1. [161]
    Accordingly, bullying allegation 13 does not support a conclusion that the Applicant was subjected to bullying within the meaning of s 272 of the IR Act.

5.14.Bullying allegation 14 – that there was "ganging up" toward the Applicant by investigating Ms Salmond's concerns about him.

  1. [162]
    The Applicant contends that there was "ganging up" on the Applicant because Ms Salmond's complaint about the Applicant was permitted to be investigated.
  1. [163]
    Ms Salmond made a complaint about the Applicant's conduct. Dr Wilson, who was the decision maker, gave evidence that he determined to accept Ms Salmond's complaint and for that complaint to be considered by the workplace investigator.
  1. [164]
    Dr Wilson gave direct evidence that he had received advice from HR that there were concerns about the culture within the CET and that it was appropriate for both the Applicant's and Ms Salmond's complaints to be investigated.
  1. [165]
    I do not consider that the Applicant has adduced any evidence to suggest "ganging up" and by whom.
  1. [166]
    Further, Dr Wilson gave direct evidence that upon receiving the complaint he sought advice and subsequently considered it appropriate to investigate Ms Salmond's complaint. I consider it was reasonable for Dr Wilson, upon receiving Ms Salmond's complaint to accept it and for it to be investigated.
  1. [167]
    I do not consider Dr Wilson's conduct to be unreasonable. I consider that Dr Wilson's conduct amounts to reasonable management action taken in a reasonable way. Accordingly, bullying allegation 14 does not amount to bullying within the meaning of s 272 of the IR Act.

5.15.Bullying allegation 15 – Ms Salmond attempted to "adjust the project management unit… so as to make it more difficult for the Applicant to recommence teaching the unit".

  1. [168]
    The Applicant's written submissions do not address this allegation although it is included as a contention.
  1. [169]
    The Applicant contends that Ms Salmond adjusted the CEA202 Project Management unit so as to make it more difficult for the Applicant to teach it in the future.
  1. [170]
    Ms Salmond's evidence[42] directly addresses this contention as follows:
  1. In response, I say I have done no such thing. The Project Management Unit was changed as a consequence of the ADCE Review process. I have taken no action against the Applicant to make it more difficult for him to teach the Project Management Unit. The reason he has not returned to teaching the project management union with other consequences of the fact he does not have the relevant industry experience in managing civil engineer projects.
  1. Mr Sprong who took over teaching the project management subjects in early 2019 when the Applicant went on leave has greatest civil engineering experience in the Applicant that is the only reason that he is the preferred teacher to continue teaching their subjects.
  1. [171]
    The evidence is that after the ADCE review process, the Practical Experience Requirement was introduced. This was applied across the ADCE and was not limited to the CEA202 Project Management unit. It was not an adjustment made by Ms Salmond. Whilst the Applicant may disagree with the focus on practical industry experience it was reasonable for the respondent to amend the requirement for units to have regard to practical industry experience and to impose the Practical Experience Requirement.
  1. [172]
    On the evidence, I do not find that Ms Salmond adjusted the CEA202 Project Management unit so to make it difficult for the Applicant to teach it. Accordingly, bullying allegation 15 does not support a conclusion that the Applicant was subjected to bullying within the meaning of s 272 of the IR Act.
  1. 6
    Conclusion with respect to the bullying application
  1. [173]
    After considering the evidence with respect to the bullying allegations, I am satisfied that the Applicant was not bullied in the workplace within the meaning of s 272 of the IR Act. In this regard the Applicant has not established that he was subjected to any repeated unreasonable behaviour towards him by anyone. Further, the Applicant has not established any risk to his health and safety.
  1. [174]
    Accordingly, I decline to issue the orders sought by the Applicant. I will issue orders dismissing the bullying application.
  1. 7
    The adverse action application

7.1The relevant statutory framework and general principles

  1. [175]
    The general protections scheme under the IR act protects employees from adverse action taken against them by their employer because they have exercised, or not exercised a workplace right.
  1. [176]
    This onus rests with the Applicant to establish that the action taken was "adverse action" within the meaning of s 282 of the IR Act. Section 282 provides the meaning of adverse action as follows:

282 Meaning of adverse action

  1. Adverse action is taken by an employer against an employee if the employer -
  1. dismisses the employee; or
  1. injures the employee in the employee’s employment; or
  1. alters the position of the employee to the employee’s prejudice; or
  1. discriminates between the employee and other employees of the employer.

…

  1. Adverse action includes -
  1. threatening to take action covered by subsections (1) to (4); and
  1. organising to take action covered by subsections (1) to (4).
  1. Adverse action does not include action that is authorised under -
  1. this Act or any other law of the State; or
  1. a law of the Commonwealth.
  1. [177]
    To constitute adverse action, relevantly the incident or event must constitute something that injured the Applicant or altered his position in the workplace. The limbs of s 282(1) were considered by O'Connor VP in Gilbert v Metro North Hospital and Health Service and Ors[43] as follows:[44]
  1. [14]
    Section 282(1)(b), requires that the employee be in a worse position in his or her employment after the action than before it. It requires more than embarrassment or upset on the part of the employee.  When determining whether an injury has occurred, an objective view must be taken: the employee's subjective view alone is insufficient to make out an injury.
  1. [15]
    Section 282(1)(c), "alters the position of the employee to the employee's prejudice" is a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.  However, the prejudicial alteration must be real and substantial, rather than merely possible or hypothetical.
  1. [16]
    In s 282(1)(d), "discriminates" ought to be given its ordinary meaning, drawing on the meaning of the term in anti-discrimination law only to a limited extent, if at all.  Intention is required and establishing adverse action of this kind necessarily involves a comparison (and whether there was comparatively less favourable, or at least different, treatment).

(citations omitted)

  1. [178]
    Section 285 of the IR Act provides the protection from adverse action as follows:

285 Protection

  1. A person must not take adverse action against another person -
  1. because the other person -
  1. has a workplace right; or
  1. has, or has not, exercised a workplace right; or
  1. proposes to or proposes not to, or has at any time proposed to or proposed not to, exercise a workplace right; or
  1. to prevent the exercise of a workplace right by the other person.

Note -

This subsection is a civil penalty provision.

  1. A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes to or has at any time proposed to exercise, a workplace right for the second person's benefit or for the benefit of a class of persons to which the second person belongs.

7.2''Workplace Right''

  1. [179]
    Section 284 of the IR Act defines ''workplace right'' as follows:

284 Meaning of workplace right

  1. A person has a workplace right if the person -
  1. has a right to the benefit of, or has a role or responsibility under, an industrial law, industrial instrument or order made by an industrial body; or
  1. is able to start, or participate in, a process or proceedings under an industrial law or industrial instrument; or
  1. is able to make a complaint or inquiry -
  1. to an entity having the capacity under an industrial law to seek compliance with that law or an industrial instrument; or
  1. if the person is an employee - in relation to the person's employment.
  1. In this section -

industrial body means -

  1. the commission; or
  1. the court, or another court or commission (however called), exercising industrial law functions and powers corresponding to the commission's functions and powers
  1. [180]
    Relevantly, a person has a ''workplace right'' if they are able to make a complaint or inquiry in relation to their employment.[45]
  1. [181]
    In relation to each alleged instance of adverse action, the Applicant must establish that:[46]
  1. the alleged workplace rights which are relied upon fall within the scope of s 284; and
  1. he exercised the workplace rights relied upon in the way alleged.
  1. [182]
    The Applicant bears the onus of establishing the factual existence of the circumstances which are alleged to have been the reason for taking the alleged adverse action.[47]

7.3When adverse action taken ''because'' of a prohibited reason

  1. [183]
    The causal connection between the alleged adverse action and the exercise (or not) of a workplace right was considered in Gilbert as follows:[48]
  1. [26]
    What must be determined is whether the adverse action was taken by the employer against the Applicant "because" she had exercised a workplace right.
  1. [27]
    Importantly, there needs to be a connection between the reason, or reasons as found and the adverse action which arises from the presence of the word "because" in s 285 of the IR Act.
  1. [28]
    The term "because" connotes the existence of a particular reason, being an operative and immediate reason, for taking adverse action.  It prohibits a person from taking adverse action "because" a person has a "workplace right", or because the person has, or has not, proposes to exercise, or proposes not to exercise, such a right.
  1. [29]
    In Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd, Jessup J, after considering Board of Bendigo Regional Institute of Technical and Further Education v Barclay (Barclay) and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (BHP Coal), said:

The "connection" which was held not to be sufficient in BHP Coal was between the adverse action taken by the employer and the industrial activity in which the employee had engaged.  It was not between two different characterisations of the conduct of the employee, in that case, as a contravention of the employer's conduct policy and as participation in industrial activity.  As French CJ and Kiefel J made clear, if adverse action was taken because the conduct involved such a contravention, it did not become a breach of s 346 merely because the conduct was, at the same time, participation in industrial activity.  The existence of such a "connection" was insufficient.  What was necessary was that the actual reason of the decision-maker, in his or her own mind, be the employee's participation in industrial activity.  To see their Honours' reasons in this way is, in my view, to recognise the consistency of those reasons with the statements of principle contained in the reasons of Gageler J in the same case.  Those statements represent the law after Barclay and BHP Coal.

  1. [30]
    In BHP Coal, Gageler J said:

… The protection afforded by s 346(b) is not protection against adverse action being taken by reason of engaging in an act or omission that has the character of a protected industrial activity.  It is protection against adverse action being taken by reason of that act or omission having the character of a protected industrial activity.

  1. [31]
    In Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Ltd (No.2), Wigney J wrote:

The distinction drawn by Gageler J is potentially important to the resolution of the issue concerning the decision-maker's reasons in this matter.  BHP Coal concerned an alleged contravention s 346 of the Fair Work Act.  While it might be thought to be a very fine and highly nuanced distinction, if Gageler J's distinction is applied to s 340 of the Fair Work Act, it would follow that the protection afforded by s 340 is not protection against adverse action by reason that an employee had, or exercised, a right that happened to have the character of a workplace right.  It is a protection against adverse action being taken by reason of the fact that the right possessed by the employee had the character of a workplace right.

  1. [184]
    The term "because" connotes the existence of a particular reason, being an operative and immediate reason, for taking adverse action.[49] 

7.4Onus of proof

  1. [185]
    Section 306 imposes a reverse onus of proof as follows:

306 Reason for action to be presumed unless proved otherwise

  1. Subsection (2) applies if -
  1. in an application in relation to a contravention of a provision of this part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
  2. taking that action for that reason or with that intent would be a contravention of the provision.
  1. It is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
  1. Subsection (2) does not apply in relation to orders for an interim injunction.
  1. [186]
    However, before the reverse onus is engaged, the Applicant bears the onus of first proving the factual existence of the circumstances which are said to give rise to the adverse action. Relevantly, the Applicant must prove:[50]
  1. the conduct that he alleges was taken in fact occurred;
  1. the workplace right alleged exists (or he was relevantly protected);
  1. the conduct constitutes adverse action for the purposes of s 282;
  1. the alleged proscribed reason for that conduct is within one or more of the relevant proscribed categories; and
  1. the evidence is consistent with the hypothesis that the respondent was actuated by a proscribed purpose.
  1. [187]
    The equivalent provision in the Fair Work Act 2009 is s 361.  In Gilbert,[51] his Honour O'Connor VP cited United Firefighters Union of Australia v Easy[52] where Ross J stated:[53]

. . . [I]t is important to note that s 361 does not obviate the need for the applicants to prove the existence of the objective facts which are said to provide the basis of the respondent's conduct.  The onus does not shift from the applicant to the respondent until the applicant establishes the elements of each of the general protections upon which it seeks to rely.  It is not enough for the applicants to merely make assertions regarding these elements, they must be determined objectively.

  1. [188]
    Before the presumption operates it is a pre-condition that the allegation precisely and distinctly identifies the particular alleged reason or intent for the contravening action.[54]  Procedural fairness demands no less.[55]  Precision is required:[56]

Allegations of contravention of the general protections provisions are inherently serious and should, as a matter of fairness, be pleaded with sufficient precision for a respondent to know the case against it.

  1. [189]
    If the reverse onus in s 306 of the IR Act is engaged, the issue to be determined is whether the evidence is sufficient for the Commission to be satisfied that none of the reasons of the decision maker for the alleged adverse action included a proscribed reason.[57]  The central question of fact is 'why was the adverse action taken?', which must be answered in light of all the facts established in the proceeding.[58]  Direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer.[59]  In assessing the evidence said to discharge the reverse onus, the reliability and weight of the employer's evidence is to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case.[60]
  1. [190]
    The authorities indicate that the focus of the general protections is to prevent conscious and deliberate victimisation:  if there was none, the reverse onus (if engaged) will be discharged.[61]
  1. 8
    The adverse action allegations
  1. [191]
    As noted above, the onus rests with the Applicant to establish the objective facts which are said to give rise to the alleged contravention of s 285 of the IR Act. As is evidenced in my consideration of the adverse action allegations below, the allegations made against the Respondent largely lack precision and variously do not clearly identify either the workplace right which is said to be invoked, and/or how and why the action is claimed to be adverse and/or what the applicant alleges was the proscribed reasons for the conduct. I will address these matters further below.

8.1Adverse action allegation one: that Ms Salmond complained about the Applicant and the Respondent decided to accept and investigate Ms Salmon's complaint because the Applicant made his bullying complaint.

  1. [192]
    The Applicant alleges[62] that the 2019 investigation into the Applicant was adverse action taken against the Applicant for exercising his workplace right to lodge a workplace bullying complaint.
  1. [193]
    The allegation appears to conflate the actions of Ms Salmond in making the complaint of bullying about the Applicant with the actions of Dr Heim in accepting Ms Salmond's complaint and requesting that it be considered as part of the 2019 Investigation.
  1. [194]
    The Applicant does not assert how the making of and acceptance of the complaint amounted to adverse action in the circumstances of this matter. Relevantly, the Applicant does not assert whether the action injured him in his employment, altered his position in his employment to his prejudice or discriminated against and if so, how the action did those things.
  1. [195]
    Relevantly, the Applicant has not established how the making of the complaint by Ms Salmond or how the acceptance of that complaint and incorporating it into a matter to be investigated in the 2019 Investigation amounts to adverse action within the meaning of  s 282 of the IR Act.
  1. [196]
    This is not merely a pedantic point as the caselaw with respect to whether the commencement of a workplace investigation amounts to adverse action is varied[63].
  1. [197]
    Accordingly. I do not consider that the applicant has established that the conduct amounted to adverse action within the meaning of s 282 of the IR Act. Consequently, the reverse onus is not engaged.
  1. [198]
    However, if I am wrong as to this conclusion, the Applicant did not disturb, in cross-examination, the evidence of Ms Salmond and Dr Heim that they did not take the action for a proscribed reason.
  1. [199]
    Relevantly, the Applicant asserts that the conduct was taken, respectively, by Ms Salmon and Dr Heim because he had lodged a workplace bullying complaint.
  1. [200]
    Ms Salmond's direct evidence was as follows:[64]
  1. I have also seen paragraph 26 of the Applicant's affidavit affirmed 22 January 2021 where he alleges that my complaint was "...adverse action in response to [the Applicant's] workplace bullying complaint". I understand the Applicant to be alleging that my complaint was not genuine, or that I only lodged it because he had lodged a complaint against me. This is untrue. I raised my complaint due to the fact that I was asked about my interactions with the Applicant by the investigator. I did not do so out of retaliation. I did this because I held (and continue to hold) genuine belief that I had been bullied by the Applicant and it formed a relevant part of the narrative around my dealings with the Applicant.
  1. [201]
    Dr Heim's direct evidence as to the reasons for his actions was as follows:[65]
  1. I understand that the Applicant alleges that adverse action was taken against him in this regard because of his workplace bullying complaint, lodged in December 2018.
  1. Mr Watton's workplace bullying complaint was not a reason for any decision that I made in respect of the investigation.
  1. [202]
    It follows that the Commission is in receipt of direct evidence from Ms Salmond and Dr Heim that they did not take the action as alleged because the Applicant had lodged a workplace bullying complaint. The direct evidence of both Ms Salmond and Dr Heim was not disturbed during cross-examination. I accept the direct evidence of Ms Salmond and Dr Heim as credible and reliable.
  1. [203]
    It follows that I accept the reasons provided by Ms Salmon and Dr Heim for their conduct and accordingly accept that they did not take adverse action for a proscribed reason.
  1. [204]
    Accordingly, adverse allegation one does not amount to adverse action and consequently does not support a conclusion that s 285 of the IR Act has been contravened.

5.16.Adverse action allegation two: That Dr Heim removed the applicant from teaching Project Management in October 2019 because he had made his bullying complaint.

  1. [205]
    The Applicant alleges[66] that Dr Heim, in October 2019, advised the Applicant that due to the Applicant's lack of experience delivering civil engineering projects that the Applicant's position would be altered to his prejudice as he would no longer teach CEA202 Project Management or its equivalent, contrary to s 282(1)(c) of the IR Act.
  1. [206]
    It is relevant to note the factual background to this allegation. Notably, the Applicant was not teaching Project Management as at October 2019. Accordingly, on the facts, the allegation as alleged, that Dr Heim removed the Applicant from teaching CEA202 Project Management in October 2019 can not be made out. On this basis alone the Applicant has failed to establish the objective facts he relies on to contends the adverse action.
  1. [207]
    It appears to be uncontentious that on 25 October 2019, amongst other things, Dr Heim met with the Applicant to discuss the Project Management unit and that it would be more directly focused on practical aspects of working on an engineering project.[67]
  1. [208]
    Dr Heim's evidence with respect to this meeting was as follows:[68]
  1. In that meeting, I advised him to the effect that following the ADCE review, the Project Management Unit would be taking a more applied route and therefore, we wanted a teacher experienced in project management in the civil engineering industry to teach that course. I also outlined to the Applicant there were other options for him to keep his full-time equivalent fraction. The Applicant expressed the view that he still felt people were trying to remove him from teaching the ADCE program. I disagreed with this and stated the decisions around the Practical Experience Requirement was made as a consequence of the ADCE review.

Exhibited hereto and marked as 'BH-22' is a copy of the meeting note I prepared.

  1. While it was unfortunate, I did not consider the Applicant was the best person available to teach the Project Management Unit. The ADCE review had taken a more applied route and the Applicant could not demonstrate any civil engineering experience. The decision had nothing to do with the Applicant in particular, but rather was focused on better learning outcomes for students and consistent with the Respondent's promotion strategy that it employs teachers who are industry-current.
  1. [209]
    Dr Heim's evidence in this regard was not disturbed in cross-examination.
  1. [210]
    I am not satisfied that the allegation as stated by the applicant occurred in the terms alleged. Consequently, the meeting in October 2019 confirmed that the Respondent wanted a teacher experienced in the civil engineering unit to teach the course. This communication was consistent with the outcomes of the ADCE review. Given the Applicant's limited civil engineering experience Dr Heim indicated that the Applicant was not the best person available to teach project management. This confirmation did not remove the Applicant from any role but rather confirmed that Mr Sprong (who had extensive industry experience) would continue to teach the unit.
  1. [211]
    Further, I accept that Dr Heim's direct evidence which remained undisturbed under cross-examination as to the reasons why this decision was made. Relevantly, I accept Dr Heim's evidence that this reason was made as a consequence of the ADCE review. I consider such a decision to be consistent with the recommendation of the ADCE Review. Accordingly, I am not satisfied that the Applicant has established a factual basis to establish adverse action allegation two.
  1. [212]
    I pause at this juncture to note that the Applicant's perception about his perceived removal from the CEA202 Project Management unit as amounting to bullying and adverse action does not accord with the wholesale review of the ADCE which resulted in the Respondent adopting the approach that it would appoint candidates with relevant industry experience and impose the Practical Experience Requirement.
  1. [213]
    The Applicant participated in the ADCE review process including by providing feedback. The Applicant was aware of the recommendations that were made and after the consultation process was advised as to which recommendations would be implemented. One of the recommendations implemented included the adoption of the Practical Experience Requirement.
  1. [214]
    The Applicant requested to be allocated to the CEA202 Project Management unit in, inter alia, June 2019, October 2019 and March 2020 and November 2020 after the introduction of the Practical Experience Requirement. On each of these occasions Dr Heim advised the Applicant that he would not be allocated to the subject.
  1. [215]
    The explanation for maintaining Mr Sprong in the role was based upon Mr Sprong's years of practical experience.
  1. [216]
    With respect to the Applicant's June 2019 request, Dr Heim's evidence was as follows:[69]
  1. I understood that Mr Watton wanted to return to teaching project management in the ADCE. Mr Sprong had taken over teaching that unit from the Applicant in early 2019, when the Applicant went on leave. I was minded to leave Mr Sprong allocated to teach project management in semester 2. I did not want to change teachers again, as I thought that would be too disruptive to the students.
  1. I have been shown Mr Watton's affidavit affirmed 21 August 2021, where he alleges as follows:
  1. In June [2019] I was not reappointed to teaching the Project Management unit in the ADCE.
  1. I believed this was adverse action as it was a direct consequence from me lodging a workplace bullying complaint against Ms Jade Salmond and other members of the Civil Engineering Team.
  1. Mr Watton is incorrect. The decision to not allocate Mr Watton to teach project management in the ADCE in June 2019 was not made because he made his bullying complaint. His bullying complaint played no role in the decision whatsoever. The only reasons were that Mr Sprong was well qualified and suited to teaching the unit and my desire to avoid the disruption of changing teachers again.
  1. [217]
    I have already referred to Dr Heim's response to the October request above.
  1. [218]
    The Applicant contends that Dr Heim made an assumption about the Applicant's industry experience without knowing the details of the Applicant's experience.
  1. [219]
    Dr Heim's response to that proposition when put to him in cross-examination is as follows:[70]

---The person that was teaching that unit at the time had roughly 40 years of experience managing projects in the civil engineering context, and I made an assumption based on what I did know of your background that you did not have a similar level of experience.

  1. [220]
    With respect to the March 2020 request, Dr Heim's evidence was as follows:[71]
  1. On 11 March 2020, I met with the Applicant to come up with a plan for Semester 2, 2020 in line with the agreed outcomes from the previous QIRC meeting. In that meeting, I discussed with the Applicant the Respondent's preferred approach to have someone with more significant project management experience in the context of civil engineering projects than the Applicant had, to teach the Project Management Unit in the ADCE. I acknowledged that while the Applicant met the technical requirements under TEQSA to teach the unit, it was TAFE's preferred approach to use lecturing staff who were academically qualified and industry experienced to teach the unit.
  1. [221]
    With respect to the November 2020 request, Dr Heim's evidence was that:[72]
  1. On 30 November 2020, the Applicant sent me an email advising me that he had no further information from Gladstone Regional Council about the extension to his contract. He asked me:
  1. a.
    the due date for Gladstone Regional Council to make a decision regarding the extension of his employment contract; and
  1. b.
    whether he would be able to resume teaching the Project Management Unit within the ADCE.
  1. I responded by stating that we would need to know by the end of that week if the Respondent was to have any chance of recruiting someone to teach the Engineering Practices Unit which he had been allocated to teach. I also advised him that he would not be teaching the Project Management Unit given that I considered that we already had someone engaged to teach it (Mr Sprong) who had relevantly better qualifications and experience in the civil engineering field than Mr Watton.

Exhibited hereto and marked as 'BH-30' is a copy of that email thread.

  1. Mr Sprong was a qualified civil engineer and had close to 40 years of industry experience, with a substantial component being in project managing civil engineering projects. I considered he was more qualified to teach the Project Management Unit than the Applicant as the Applicant had only had three months industry experience at that stage (and I was uncertain of the applicability of that experience).
  1. [222]
    It is clear from the above that the Applicant's desire to teach the CEA202 Project Management unit has blinded him to the practical effect of the introduction of the Practical Experience Requirement and the reality that the Respondent had allocated the unit to a teacher who has far more extensive practical experience than the Applicant. Accordingly, I do not accept that the reason why the Applicant has not been allocated to teach the CEA202 Project Management unit was because the Applicant had lodged a workplace bullying complaint.

5.17.Adverse action allegation three: That threats were made to the Applicant’s substantive position.

  1. [223]
    In the Applicant's affidavit[73] he refers to several occasions upon which he states that his "substantive position" was threatened by the Respondent.
  1. [224]
    These matters are not included or addressed in the Applicant's contentions or his written submissions as an allegation of adverse action in contravention of s 285 of the IR Act. Accordingly, I find that these matters are not allegations of adverse action included in the proceeding. However, as further insight into the Applicant's perception as to how he was being threatened by the Respondent, I refer to the following extract of the Applicant's evidence:[74]
  1. On 8 November 2019, I met with Dr Brian Heim regarding my teaching schedule for Semester One 2020. Dr Brian Heim maintained that I would no longer be teaching CEA202 Project Management in the ADCE, although I could maintain teaching CEA104 Engineering Practices on a half teaching load. He further advised that if I wanted to maintain fulltime employment I would need to take other duties for the other half workload. Although I recognized this threat to my substantive position and breach of a fundamental term of my employment contract I advised Dr Brian Heim that I wanted to maintain my fulltime position and requested to take the other half workload as leave until the end of Semester One 2020 to enable me to complete my Bachelor of Law. Dr Brian Heim agreed to the request and agreed to meet around April 2020 to discuss my teaching options for Semester Two 2020. This meeting was recorded by Dr Brian Heim.
  1. [225]
    Dr Heim's evidence corroborates that he met with the Applicant on 8 November 2019. However, he states that at the outset of the meeting, after an inquiry from the Applicant, he confirmed that there was no intention to make the Applicant's position redundant. This was later confirmed in email correspondence from Dr Heim to the Applicant.[75]
  1. [226]
    This evidence was not disturbed under cross-examination and I accept that Dr Heim reassured the Applicant that there was no intention to make his position redundant.
  1. [227]
    Dr Heim's response to the Applicant's view of the conversation of 8 November 2019 is as follows:[76]
  1. In response, I say that I remember that meeting as it followed right after we had been at the Queensland Industrial Relations Commission in early November 2019. When we met, I provided the Applicant with options: to either main(sic) his full-time role or reduce his fraction if he preferred. I explained that in order to maintain a full-time teaching load, he would need to take on teaching outside of the Civil Engineering degree and commence teaching in vocational education. If he did not want to take on VET teaching, another option would be for him to maintain his employment but reduce his fraction. He asked if he could take leave to remain fulltime, which he ended up taking. I deny that I said anything that could reasonably be understood as a "threat to [his) substantive position and a breach of a fundamental term of [his] employment contract". The intent of that meeting and the words that I said to the Applicant was to meaningfully consult and negotiate with the Applicant on his programming and timetable to come to a mutually acceptable arrangement.
  1. [228]
    As is clear from the extracts of both the Applicant and Dr Heim's evidence the parties came to a mutually agreed outcome as to the Applicant's teaching allocation. There is no meaningful basis for the Applicant to maintain that his position was under threat. He was reassured at the outset of the meeting that it was intended that his position would not be made redundant and he successfully negotiated his preferred teaching allocation.

5.18.Adverse action allegation four: That the Respondent issued the final warning because of the Applicant’s bullying complaint.

  1. [229]
    The Applicant contends[77] that in April 2019 "on the basis of probability", the Applicant was found to have acted unprofessionally, on all four counts, and was issued with a Final Warning, contrary to s 282(1)(b) of the IR Act".
  1. [230]
    The Applicant gave evidence with respect to this allegation as follows:[78]
  1. On 14 February 2019, I was advised that during the investigation into my complaint Team Manager Jade Salmond had made a counter-complaint about my disrespectful behaviour towards herself and Dr Allan Beasley. I believe this complaint was adverse action in response to my workplace bullying complaint as no member of TQB, TQB Management or Human Resources Department had raised any concerns regarding my workplace behaviour prior to my lodgment(sic) of my official complaint. The matters raised were over a period between 2 and 15 months prior to a formal complaint being lodge and know to Team Manager Jade Salmond who had previously decided to take no formal or informal action. The complaint lodged by Jade Salmond was only after, and in response to, my formal complaint into workplace bullying.
  1. On 14 February 2019, I received a 'Notice of Investigation' in regards to the allegations made about my behaviour. The complaint included two matters that contained insufficient detail as to the alleged offence (no dates or times of the offence) preventing a proper response. The same investigator who investigated my complaint was appointed to investigate the allegations against me. Refer to Exhibit "F" (pages 1 - 2) for a copy of this written communication.
  1. On 8 April 2019, I was advised that the investigation into my workplace bullying complaint determined the allegations I had made could not be substantiated. Refer to Exhibit "G" (pages 1 - 2) for a copy of this written communication.
  1. On 9 April 2019, I received a 'Show Cause Notice,' dated 8 April 2019, in regards to the allegations made about myself to which I was required to respond within seven (7) days. Refer to Exhibit "H" (pages 1 - 3) for a copy of this written communication.
  2. On 15 April 2019, I responded to the 'Show Cause Notice' via a letter from my legal representative. I elected to engage legal counsel, at significant cost to myself, due to the severity of the likely outcome of the 'Show Cause Notice'.
  1. On 23 April 2019, I received a 'Decision on Disciplinary Action' notice advising me that this matter had resulting in me being given a final warning notice and that "future instances of poor behaviour may result in disciplinary action including termination of employment Refer to Exhibit "I" (pages 1 - 3) for a copy of this written communication. The disciplinary action was taken despite Team Manager Jade Salmond and Faculty Director Dr Brian Heim being aware of the alleged behavior for two to fifteen months before a formal complaint was lodged. This delay in dealing with the alleged unprofessional conduct equates to the conduct being deemed, by management, as acceptable professional at the time or condoning the behavior. The way this incident was dealt with is procedurally unjust. This disciplinary action was later amended to a formal warning due to negotiation at the Industrial Relation Commission with Commissioner Power on 1 November 2019.
  1. [231]
    From the above it appears that the Applicant alleges that adverse action in the form of the Final Warning was taken against him because he had lodged the bullying complaint. I accept that the issuing of a Final Warning at the conclusion of a disciplinary process amounts to adverse action in the circumstance of this matter as it alters the position of the Applicant in his employment to his prejudice. However, the Applicant does not allege who took the action on behalf of the Respondent.
  1. [232]
    Given the Applicant contends that it is the action of issuing the Final Warning that is the adverse action I will have regard to the evidence of the relevant decision maker, Dr Wilson.
  1. [233]
    Dr Wilson's evidence with respect to why he determined to issue the Final Warning was as follows:[79]
  1. On a date I cannot recall, I received a brief to consider whether to issue Mr Watton with a show cause notice in respect of the substantiated allegations against him. The brief contained a copy of the Investigation Report.
  2. I decided to issue the Show Cause Notice to Mr Watton after reading the briefing material, including a copy of the Investigation Report and in particular the findings in the Investigation Report about the allegations against him. I did not make a decision to issue the Show Cause Notice because Mr Watton made a workplace complaint.
  3. On 8 April 2019, I wrote to Mr Watton inviting him to show cause why I should not impose a disciplinary penalty (including issuing a formal caution, a reduction in salary increment level or termination of employment) in relation to his conduct on 22 November 2017, 13 July 2018, 12 December 2018 and various other times in the preceding years. Exhibited to this affidavit and marked "PW-4" is a copy of the Show Cause Notice.
  4. As General Manager, I held the requisite delegated authority to issue an employee with a show cause notice. Exhibited to this affidavit and marked "PW-5" is a copy of the instrument of delegation.
  5. In the Show Cause Notice, I invited Mr Watton to respond to the following four allegations:
    1. a.
      On 22 November 2017, he made disrespectful comments about Dr Beasley in front of other employees of the Respondent (Allegation 1);
    1. b.
      On 13 July 2018, in a telephone conversation with Ms Salmond, he was disrespectful towards her when she w s attempting to resolve a deficit in his teaching hours caused by a smaller cohort of students (Allegation 2);
    1. c.
      Around 12 December 2018, he told Mr de Wet that Ms Salmond said he was using TAFE as a safety net (Allegation 3); and
    1. d.
      Over the last few years, at various times, he made disrespectful remarks about Dr Beasley to other employees of the Respondent (Allegation 4).
  1. I afforded Mr Watton 7 days to provide a response to the Show Cause Notice.

Mr Watton's response to the Show Cause Notice

  1. On 15 April 2019, Mr Watton, through his representatives Supportah Ops Pty Ltd t/a IR Claims, provided a response to the Show Cause Notice. Exhibited to this affidavit and marked "PW-6" is a copy of Mr Watton's response.

Decision to issue Mr Watton with a final warning

  1. I do not recall whether I received a copy of Mr Watton's response to the Show Cause Notice. I believe I would have read and considered a copy of Mr Watton's response and had discussions with my TQB HR advisors on the next course of action.
  2. I decided that he had not shown cause why he should not be disciplined.
  1. On 24 April 2019, I wrote to Mr Watton advising him that, based on the findings of the Investigation Report, on the balance of probabilities (Decision Letter):
    1. a.
      I was reasonably satisfied that Allegations 1, 2 and 3 were capable of being substantiated; and
    1. b.
      I was reasonably satisfied Allegation 4 was capable of being partially substantiated.
  1. In terms of penalty, I determined to issue Mr Watton with a Final Warning. Mr Watton was informed that future instances of poor conduct may result in disciplinary action including termination of employment. Exhibited to this affidavit and marked "PW-7" is a copy of the Decision Letter.
  2. In deciding to issue the Final Warning to Mr Watton, I took into account only the findings of the Investigation Report and Mr Watton's response to the Show Cause Notice. I did not take any other matters into account.
  1. At paragraph 83 of the Applicant's Affidavit and paragraph 33 of the Applicant's SFCs, Mr Watton alleges to the effect that I issued the Final Warning to him because he made a complaint about Ms Salmond. He alleges that this constituted adverse action and contravened s 282(1)(b) of the Industrial Relations Act 2016 (IR Act).
  2. I did not issue the Final Warning to Mr Watton because he made a bullying complaint against Ms Salmond. The only reason that I issued the Final Warning was because I was reasonably satisfied that Mr Watton engaged in the conduct constituting each allegation against him, based on the evidence available to me at the time.
  1. [234]
    Dr Wilson's evidence with respect to the reasons as to why he issued the Final Warning remained undisturbed under cross-examination. Relevantly, it was not put to Dr Wilson that he issued the Final Warning because the Applicant had made the bullying complaint.
  1. [235]
    I accept Dr Wilson's evidence as reliable and credible. Further, I accept Dr Wilson's evidence as to why he issued the Final Warning and relevantly accept that the Final Warning was not issued because of the Applicant's bullying complaint. Accordingly, the adverse action did not occur because of a proscribed reason. Consequently, adverse action allegation four does not establish a contravention of s 285 of the IR Act.

5.19.Adverse action allegation five: That Dr Heim refused to provide the “necessary information” or support “professional development that would support the Applicant’s teaching project management.

  1. [236]
    This allegation is not included in the Applicant's contentions as an allegation of adverse action.[80] The Applicant's evidence touches upon this matter insofar as the Applicant states:[81]
  1. TQB have prejudiced my workplace rights under s 284(1)(c)(ii) of the Industrial Relations Act 2016 (IR Act). That being my right to lodge a complaint of workplace bullying my Team Manager and another senior member of the Civil Engineering Team. This prejudice manifested itself into adverse action pursuant to s 285(1)(a)(i) of the IR Act, through ongoing threats to my substantive position and permanent employment. The adverse action being: …(5) the refusal to provide me with the necessary information and support my appropriate pursuit of professional development that would support my recommencing teaching of the Project Management Unit within the ADCE, contrary to the meaning of adverse action under s 282 (1) (d) of the IR Act;…
  1. [237]
    In making this assertion the Applicant gave the following evidence:[82]
  1. On 11 March 2020, I met with Dr Brian Heim regarding my work allocation for Semester Two 2020. I advise Dr Brian Heim that it was my preference to continue to teach project management and I was happy to undertake additional professional development to achieve this goal. He reiterated that I would no longer be teaching CEA202 Project Management in the ADCE. I then asked Dr Brian Heim what experience I needed in order to satisfy the new requirements, to which he advised he could not provide me with those details as he would not be making that decision. Dr Brian Heim then advised that he did not want to give me false hope as it would be highly unlikely that I would return to teaching project management in the ADCE.
  1. On 11 March 2020, I received an email from Dr Brian Heim to summarise the points of discussion at the planning meeting. In the email Dr Brian Heim Agreed, "should I gain sufficient experience in managing civil engineering projects I could potentially return to teaching that unit." Dr Brian Heim further agreed, "that prior to gaining experience we would have a discussion to how it would apply." Dr Brian Heim further reiterated "It would be possible for you to reduce your employment fraction to 0.5 FTE and pursue other employment opportunities, either inside or outside of TAFE Queensland". Dr Brian Heim also requested a copy of my curriculum vitae. Refer to Exhibit "K" (pages 1 - 2) for a copy of this email communication.
  1. [238]
    Dr Heim gave evidence with respect to the meeting on 11 March 2020 as follows:[83]
  1. On 11 March 2020, I met with the Applicant to come up with a plan for Semester 2, 2020 in line with the agreed outcomes from the previous QIRC meeting. In that meeting, I discussed with the Applicant the Respondent's preferred approach to have someone with more significant project management experience in the context of civil engineering projects than the Applicant had, to teach the Project Management Unit in the ADCE. I acknowledged that while the Applicant met the technical requirements under TEQSA to teach the unit, it was TAFE's preferred approach to use lecturing staff who were academically qualified and industry experienced to teach the unit.
  1. I do recall that I did tell the Applicant to the effect that he could potentially return to teaching the Project Management Unit in the future, provided he gained sufficient experience and expertise in managing civil engineering projects. I recorded the outcome of that meeting in an email to the Applicant dated 11 March 2020. Exhibited hereto and marked as tBH-25' is a copy of that email.
  1. [239]
    The Applicant does not adduce any evidence that Dr Heim refused to provide the information or the support alleged. The extract of the evidence referred to does not support such a conclusion. Further the Applicant does not detail how such conduct, if it were to be established, constitutes adverse action. Neither the Applicant or Dr Heim gave evidence that Dr Heim refused to provide the Applicant with the necessary information and support to pursue professional development to permit the Applicant to teach Project Management within the ADCE. I am not satisfied that the Applicant has established the evidentiary basis to establish adverse action in contravention of s 285 of the IR Act.

5.20.Adverse action allegation six:  that Dr Heim changed the teaching criteria to prevent the Applicant from teaching project management.

  1. [240]
    Whilst this allegation does not appear in the Applicant's contention as an allegation of adverse action he submits in his evidence that:[84]
  1. TQB have prejudiced my workplace rights under s 284(1)(c)(ii) of the Industrial Relations Act 2016 (IR Act). That being my right to lodge a complaint of workplace bullying my Team Manager and another senior member of the Civil Engineering Team. This prejudice manifested itself into adverse action pursuant to s 285(1)(a)(i) of the IR Act, through ongoing threats to my substantive position and permanent employment. That adverse action being: …and (6) changing the criteria for determining the teacher guidelines, for me only so as to prevent me from teaching the Project Management Unit within the ADCE, from "relevant experience in the delivery of civil engineering projects" to "preferred teacher," contrary to the meaning of adverse action under s 282 (1) (d).
  1. [241]
    Dr Heim's evidence was that the Practical Experience Requirement was to be adopted in the ADCE following the ADCE review and the implementation of the ADCE Program Review Recommendations. Dr Heim's evidence with respect to this was as follows:[85]
  1. It was my understanding the Respondent wanted to align educational staff competency and currency requirements across both the higher education educators and the vocational educators and trainers. Policy 180 — Educational Staff Competency and Currency (Policy 180) was implemented in 2015 and as of 2017, was updated to reflect the changes to the higher education staff requirements. Applying Policy 180, I considered the Applicant was required to have demonstrated experience in the civil engineering field in order to teach the Project Management Unit as part of the ADCE program.
  1. This was consistent with the recommendation arising from the ADCE review discussed above, the point of which was to put a greater focus on ensuring that teaching staff had demonstrated practical industry experience in the units that they taught. One of the Respondent's taglines for its higher education offerings is to "do uni differently". Part of the Respondent's promotion strategy is that it employs teachers who are industry-current. In addition to meeting TEQSA requirements, we wanted to employ teachers who had industry currency in addition. Students benefit from the subject matter being put in a practical industry context.
  1. [242]
    There is no credible evidence that the teaching criteria was changed to prevent only the Applicant from teaching the Project Management unit. I accept the evidence that the change occurred following the ACDE review and applied, where relevant, across the ADCE. I do not consider that such a change amounts to adverse action.
  1. [243]
    In any event, Dr Heim gave direct evidence that the decision to not allocate the Applicant to teach the Project Management Unit was not because the Applicant had made a bullying complaint. I accept Dr Heim's evidence as reliable and credible.
  1. [244]
    Accordingly, I am not satisfied that the Applicant has established the objective facts in order to engage the reverse onus of proof. In any event, I accept that the adoption of the Practical Experience Requirement and the subsequent decision not to allocate the Applicant to teach CEA202 Project Management was not because of the Applicant's bullying complaint. Adverse action allegation six does not establish a contravention of s 285 of the IR Act.

5.21.Adverse action allegation seven: That the new teaching criteria was discriminatorily applied to the Applicant.

  1. [245]
    With respect to adverse action allegation seven, the Applicant contends that:[86]
  1. …

…

  1. Note:

…

  1. Contrary to s 282(1)(d) of the IR Act, the Applicant was discriminated against, in comparison to other Civil Engineering Team members, as the following teachers did not meet the new criteria although continued to teach in the ADCE after the Applicant was removed for not meeting said criteria:
    1. Thomas (Tom) Grice for mathematics;
    2. Michael Adcock for Building Information Modelling;
    3. Bruce laker for 2dCad;
    4. Alvaro Camacho for 2dCad; and
    5. Trent Smale for 2dCade.

…

  1. [246]
    This allegation is deficient insofar as it does not particularise the adverse action or the proscribed reason relied upon. The allegation is not precise or distinct.
  1. [247]
    Accordingly, I am not satisfied that the Applicant has established the objective facts in order to engage the reverse onus. Adverse action allegation seven does not establish a contravention of s 285 of the IR Act.
  1. [248]
    In any event, Dr Heim and Ms Salmond each gave direct evidence that they were not responsible for the introduction of the new teaching criteria ('the Practical Experience Requirement') and, other then his bare assertion, the Applicant has not adduced any evidence to contradict the direct evidence of Dr Heim or Ms Salmond.  I accept the evidence of Dr Heim and Ms Salmond as reliable and credible. Further, Dr Heim gave evidence refuting the Applicant's assertion that other teachers continued to teach despite not meeting the criteria as follows:[87]
  1. In any event, I say as follows:
    1. a.
      Mr Thomas Grice teaches a theoretical mathematics course. It is a foundational mathematics course or pure mathematics. Mr Grice holds a Masters Degree in Education and is a qualified mathematics teacher. The practical experience requirement doesn't apply to Mr Grice in the same way because the unit he is teaching is a purely theoretical one.
    1. b.
      Mr Michael Adcock teaches the Building Information Modelling (BIM) unit. It is a relatively new unit to industry. Someone who had obtained their degree a few years ago would not have background in this unit. Mr Adcock has been undertaking his Masters Degree in BIM from an overseas university. He has one more unit to go and will hold that qualification. He also has a background in civil engineering.
    1. c.
      Mr Camacho and Mr Smale have a building and architecture background. They are also teaching a subject that is a drawing/drafting subject for which they are qualified and experienced.
    1. d.
      Mr Bruce Laker has industry experience in computer aided drafting.
  1. For the above reasons, the practical experience requirement has not been applied differently against Mr Watton to that of other members of the ADCE teaching staff. The only other staff member that is not engineering qualified is Mr Grice. Given Mr Grice teaches a purely theoretical maths subjects, he remains a part of the civil engineering team teaching those subjects. Mr Grice does not teach any civil engineering units.
  1. [249]
    Whilst it is not necessary for me to form a conclusion with respect to this evidence due to the Applicant's failure to establish the adverse action or the proscribed reason, Dr Heim's evidence goes some significant way to refute the Applicant's contentions.
  1. [250]
    For these reasons, I am not satisfied that the objective facts relied on to contend adverse action allegation seven have been established on the evidence.

5.22.Adverse action allegation eight:  that Dr Heim failed to redeploy the Applicant.

  1. [251]
    The Applicant contends,[88] contrary to cl 17.4(g) of the TAFE Queensland Educators Certified Agreement 2016 ('the Agreement'),[89] the Applicant was not provided active redeployment opportunities by the Respondent.
  1. [252]
    Relevantly, cl 17.4(g) of the Agreement provides as follows:

17. 4  Consultation – introduction of changes

…

  1. There is a responsibility on the employee to meaningfully participate in the opportunities made available. Employees will comply with the deployment and redeployment activities, including the requirement that they participate actively in the deployment process.

…

  1. [253]
    Firstly, it appears that cl 17.4(g) places an obligation on employees to meaningfully participate in retraining or redeployment opportunities. The clause does not place any obligation on an employer. Further, the Applicant's position was not subject to organisational change. The Applicant has not established on what other basis he asserts that cl 17.4(g) of the Agreement applies to him and imposes an obligation on the Respondent to redeploy him. In the absence of such evidence, I am unable to conclude cl 17.4(g) of the Agreement applied in the circumstances of this matter.
  1. [254]
    In the circumstances, I am not satisfied that the Applicant has established the objective facts necessary to establish the adverse action or the prescribed reason he relies on. Consequently, the Applicant has failed to establish a contravention of s 285 with respect to adverse allegation eight.

5.23.Adverse action allegation nine: that the Applicant was coerced into withdrawing his bullying application B/2019/62.

  1. [255]
    The Applicant contends that:[90]
  1. Contrary to s 287(1)(a) of the IR Act, in February 2020, and due to TQB behaviour influencing the Applicant, the Applicant officially withdrew his workplace right to have the QIRC review the Applicant's complaint for a stop workplace bullying order, pursuant to s 284(1)(c)(i) of the IR Act.
  1. [256]
    It appears that the Applicant contends that he was coerced to withdraw his previous QIRC application. The Applicant does not allege who coerced him or the way in which he was coerced, nor does he identify the prescribed reason he relies on. On the evidence, I am not satisfied that the applicant has established the objective facts necessary to engage the reverse onus. In any event, during the course of cross examination the Applicant appears to concede that he was not coerced to withdraw the QIRC application. The following exchange is relevant:[91]

And what’s happening in that first email is that the Commissioner’s associate is seeking an update about how the parties wish to progress?---Yes.

And in the second paragraph, it’s asked:

If parties intend to discontinue the matter, could I please request the form 27 notice of discontinuance attached to be signed by both parties and returned to the Industrial Registry.

Do you see that?---Yes.

And if we go back to page 1 of that document I handed you, the next email in the chain, working backwards, is from people in TAFE to Jonathan Butler-White at 12.19 pm; do you see that?---Yes.

And then the following email in the chain is at the top of the page there from page 1, from Jonathan Butler-White to yourself at 12.30 pm on the 28th; do you see that?---Yes.

And Mr White – Mr Butler-White says:

Hi Rod, I hope you had a great holiday period and a good start to 2020. I just wanted to touch base with you around the below email form the QIRC.

Do you see that?---Yes.

And after – and he went on to say:

If you wanted to fill out your sections of the attached form and send it through to me, I can get it signed on behalf of TAFE Queensland.

?---Yes.

And he says:

If you have any questions about the form or the process, feel free to give me a call.

That’s the last line there?---That’s correct.

And after receiving this email, you did, in fact, complete and sign that form?---I did.

And you returned it to Mr Butler-White?---I did.

And you made that decision to do that of your own free will, didn’t you?---I did.

….

Now, you can put that document to the side and can I ask you a question about your contentions, Mr Watton, which is in the skinny volume, document 1. Can you please open up to paragraph 39 of your contentions?---Yes.

Now, you’re aware that section 287 of the Industrial Relations Act proscribes certain coercion?---Yes.

Now, we’ve just looked at Mr Butler-White’s email and that’s what you’re referring to here, isn’t it?---It is, correct, yes.

And it’s the case, isn’t it, that nothing about Mr Butler-White’s email was coercive towards you, was it?---No, not the email.

  1. [257]
    I am satisfied that the Applicant has not established a contravention of s 287 of the IR Act as contended with respect to adverse action allegation nine.

5.24.Adverse action allegation ten: that Dr Heim advised the Applicant that he would be assisting the business and law teams.

  1. [258]
    The Applicant contends as follows:[92]
  1. Contrary to s 282(10(c) in June 2020 Faculty Director, Dr Brian Heim, altered the Applicant's position to the prejudice of the Applicant and, advised the Applicant he would be assisting the business and law teams undertake some administrative projects and working as a tutor for the Certificate III in Legal Studies. Note:
  1. Dr Brian Heim's decision:
    1. (i)
      Ignored the Applicant's request to teach project management;
    1. (ii)
      Ignored clause 15 (Employment security) of the TAFE Queensland Educators Certified Agreement 2016;
    1. (iii)
      Ignored clause 16 (Casual employment) of the TAFE Queensland Educators Certified Agreement 2016; and
    1. (vi)
      Required the Applicant to undertake the Postgraduate Diploma of Legal Practice so as to gain currency to teach law.
  1. [259]
    The Applicant gives no evidence of a decision having been made that he was to assist the business and law teams nor has he established that he was advised that he would be doing this work. Further, the Applicant does not identify how the alleged conduct amounts to adverse action or the proscribed reason for the conduct.
  1. [260]
    The Applicant's contention broadly seems to have arisen out of an email exchange with Dr Heim whilst Dr Heim was attempting to find teaching duties to keep the Applicant's duties at a full-time equivalent in Semester 2, 2020.
  1. [261]
    Dr Heim wrote to the Applicant by email on 5 June 2020 in the following terms:[93]

I am still working on what we will have you doing next semester. it is looking like we will be using you in the Cert IV Crime and Justice T@S program for 2 days of the week, but I'll talk to you more about that probably early next week. C&J may have some work for you in rewriting resources, and I've also spoken with my colleagues at Gold Coast who run the Business Product Portfolio. They have a large project ramping up as they move into a revised training package and could use your assistance with it.

In the meantime, your myProfile profile needs work to get it up to scratch for VET teaching. Mark Jones can help you with how it works, but right now you can't update it until HR does some magic so you can input voc and teaching currency and competency documentation. We might have a chat via Zoom next week if you have some time.

…

  1. [262]
    Dr Heim's evidence with respect to this matter was as follows:[94]
  1. At that stage, I had not been able to find the Applicant any teaching or lecturing duties. Further emails were exchanged and on 2 June 2020, I had identified the Applicant was able to assist teaching in the Business and Crime and Justice Teams.

Exhibited hereto and marked as 'BH-26' is a copy of that email thread.

  1. On 5 June 2020, I communicated this to the Applicant.
  1. At paragraph 50 of the affidavit of Rodney Peter Watton affirmed 22 January 2021, he alleges as follows:

On 05 June 2020, I was advised via email that I would be working with the Crime and Justice Team 2 days per week as well as working with the Gold Coast Business Team 2 days per Week and tutoring in-a law unit for 1 day per week for Semester Two. I was not involved in any discussion regarding my workload allocation and did not receive any work allocation in line with my requests. However, this situation may have been impacted by Covid 19.

  1. In response, I say I was trying to find the Applicant teaching duties to perform in order to maintain a full-time equivalent fraction. Before I could have a discussion with him about the allocation, I wanted to find him possible duties to perform. I was still working on what he was going to do in that semester and it was open to the Applicant to refuse that. I considered that what I had said was the start of the dialogue around his allocation of teaching duties. Ultimately this was impacted by COVID-19 and everything had to be done by zoom or email.
  1. [263]
    I accept Dr Heim's evidence as credible and reliable. I find that Dr Heim's email was intended to propose certain positions that might be available and would be the subject of further discussion between Dr Heim and the Applicant. It is clear on the evidence that no decision had yet been made and that Dr Heim and the Applicant would discuss the matter further.
  1. [264]
    The Applicant has failed to establish the objective facts necessary to engage the reverse onus. Relevantly, the Applicant has not established that the conduct amounted to adverse action or the prescribed reasons relied on by the Applicant. Accordingly, the Applicant has failed to establish a contravention of s 285 in reliance on adverse action allegation 10.

5.25.  Adverse action allegation eleven:  that Dr Heim exerted under influence regarding “unnecessary professional development”

  1. [265]
    The Appellant contends that:[95]
  1. In August 2020 the Applicant requested support from Faculty Director, Dr Brian Heim, to undertake industry release to manage civil engineering projects. Contrary to s 288(b) of the IR Act Dr Brian Heim provided support for this industry release, encouraging the Applicant to undertake unnecessary professional development at significant expense and sacrifice to the Applicant.
  1. [266]
    Section 288(b) of the IR Act relevantly provides:

288 Undue influence or pressure

An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee—

  1. to make or not make an agreement or arrangement under the Queensland Employment Standards; or
  2. to make or not make an agreement or arrangement under a term of an industrial instrument; or
  3. to agree or not agree to a deduction from amounts payable to the employee in relation to the performance of work.
  1. [267]
    The Applicant does not state, with precision, the conduct that he alleges amounts to undue influence or undue pressure. Further, the applicant does not state with precision the nature of the influence or pressure to make or not make an agreement under a term of an industrial instrument.
  1. [268]
    Accordingly, I am not satisfied that the Applicant has established the objective facts necessary to establish that the alleged conduct amounted to undue influence or undue pressure.
  1. [269]
    Consequently, I am not satisfied that the Applicant has established contravention of s 288 of the IR Act.
  1. [270]
    I further note in any event, that it was the Applicant who requested that Dr Heim provide support for his industry release. It is not contentious that Dr Heim granted the Applicant's request and permitted the Applicant industry release. It now seems absurd that the Applicant would seek to impugn such support.

5.26.  Adverse action allegation twelve:  that Dr Heim did not grant the Applicant’s request to teach project management in late 2020

  1. [271]
    The Applicant contends that:[96]
  1. In December 2020 the Applicant requested permission from Faculty Director, Dr Brian Heim to recommence teaching the project management unit within the ADCE. Contrary to s 282(1)(c) Dr Brian Heim altered the Applicant's position to the Applicant (sic) prejudice as without consultation regarding the industry release and its relevant to teaching this unit, Dr Brian Heim denied this request.
  1. [272]
    This contention appears to be a continuation of the allegation referred to in adverse action allegation two. The Applicant does not particularise how the alleged conduct amounts to adverse action nor does the applicant identify with precision the proscribed reason.
  1. [273]
    The Applicant's evidence was as follows:[97]
  1. On 30 November 2020, I emailed Faculty Director Dr Brian Heim to provide an update on the possible extension and formally requesting permission to recommence teaching the Project Management unit within the ADCE. Refer to Exhibit "U" (pages 1 - 3) for a copy of this email communication.
  1. On 30 November 2020, I received an email from Faculty Director Dr Brian Heim advising that I would not be teaching Project Management in the ADCE as TQB have a "better experientially qualified" person to teach the subject. This was not what I was informed was the basis for removing me from teaching the Project Management Unit in the ADCE. Refer to Exhibit "V" (pages 1 - 4) for a copy of this email communication.
  1. [274]
    Dr Heim's evidence with respect to this matter was as follows:[98]
  1. On 30 November 2020, the Applicant sent me an email advising me that he had no further information from Gladstone Regional Council about the extension to his contract. He asked me:
  1. a.
    the due date for Gladstone Regional Council to make a decision regarding the extension of his employment contract; and
  1. b.
    whether he would be able to resume teaching the Project Management Unit within the ADCE.
  1. I responded by stating that we would need to know by the end of that week if the Respondent was to have any chance of recruiting someone to teach the Engineering Practices Unit which he had been allocated to teach. I also advised him that he would not be teaching the Project Management Unit given that I considered that we already had someone engaged to teach it (Mr Sprong) who had relevantly better qualifications and experience in the civil engineering field than Mr Watton.
  1. [275]
    The Applicant has not identified the conduct that he asserts amounts to adverse action. Relevantly, Dr Heim's response to the request appeared to confirm that the status quo would be maintained. That is, that Mr Sprong would continue to teach the Project Management unit. There is no evidence that this confirmation adversely affected the Applicant's employment in such a way so as to amount to adverse action. Whilst it is accepted that it may well have been the Applicant's desire to teach the Project Management unit, the refusal of his request was not adverse action within the meaning of s 282 of the IR Act.
  1. [276]
    Accordingly, the Applicant has not established a contravention of s 285 of the IR Act on the basis of adverse action allegation twelve.

5.27.  Adverse action allegation thirteen: Dr Heim’s email in January 2021 to ask the Applicant to demonstrate qualifications.

  1. [277]
    The Applicant contends that:[99]
  1. On Monday 18 January 2021 Faculty Director, Brian Heim, contrary to s 282(1)(c) altered the applicant's position to the Applicant's prejudice and emailed the Applicant reallocating duties for semester one 2021 with a requirement for the Applicant to demonstrate currency in subjects that, which was impossible for the Applicant to demonstrate currency in, due to the Applicant's professional development focusing on law and project management for the past four years.
  1. [278]
    The Applicant's evidence in support of this contention was as follows:[100]
  1. On 18 January 2021, I received an email from Dr Brian Heim outlining the VET units that I would need to demonstrate qualifications and competency in. As I have been on industry release for project management and been undertaking law qualifications as professional development since December 2016, I do not have the capacity to demonstrate this from a large percentage of the units. The required additional professional development to demonstrate competency and currency in these units is unreasonable and an extensive workload. Refer to Exhibit "AB" (pages 1 - 3) for a copy of this communications.
  1. [279]
    Dr Heim's evidence in relation to this allegation was as follows:[101]
  1. On 18 January 2021, I emailed the Applicant advising him of the arrangements I had made to assist him to get his teaching profile up to compliance so that he could commence teaching in vocational education programs. Exhibited hereto and marked as 'BH-31' is a copy of my email with the attached email thread organising that support.
  1. At paragraph 75 of the affidavit of Rodney Peter Watton affirmed 22 January 2021, he alleges as follows:

On 18 January 2021, I received an email from Dr Brian Heim outlining the VET units that would need to demonstrate qualifications and competency in. As I have been on industry release for project management and been undertaking law qualifications as professional development since December 2016, I do not have the capacity to demonstrate this from a large percentage of the units. The required additional professional development to demonstrate competency and currency in these units is unreasonable and an extensive workload.

  1. In addition, at paragraph 22 of Mr Watton's affidavit affirmed 21 August 2021, he alleges as follows:
  1. In January 2021, based on my original assessment of the IR Act, I lodged matter B/2021/I for stop workplace bullying orders.

…

  1. On 18 January 2021 Dr Brian Heim allocated me duties that I was not current to be able to deliver. This was adverse action for lodging the matter with the Industrial Relations Commission.
  1. In response, I say I was trying to find things for the Applicant to teach when he returned, and to identify any gaps that he may have in terms of his currency and competency. These are the reasons that I did what I did. I considered that the Applicant would have competency and currency for the VET units as they were from the Diploma of Leadership and Management. Regardless, I considered that they would pertain to what he was doing at Gladstone Regional Council and his previous experience in terms of his overall resume.
  1. I did not make any of the decisions that I made in respect of these matters because Mr Watton lodged his application for a stop workplace bullying matter. I was trying to assist him.
  1. [280]
    The alleged adverse action has not been identified with precision. It is difficult to readily accept that the request made by Dr Heim, in and of itself, could amount to adverse action within the meaning of s 282 of the IR Act. I am not satisfied that the Applicant has discharged the onus to establish the objective facts necessary to engage the reverse onus.
  1. [281]
    In any event, and in the absence of any evidence to the contrary, I accept Dr Heim's evidence that when he made the request he was not motivated by the Applicant's bullying complaint.
  1. [282]
    Consequently, adverse action thirteen does not support a conclusion that s 285 of the IR Act has been contravened.
  1. 9
    Conclusion with respect to the adverse action application
  1. [283]
    It follows from my findings above, that I am not satisfied that the Applicant has established any contraventions of the general protection provisions as alleged.
  1. [284]
    Accordingly, I decline to issue the orders sought by the Applicant. I will issue an order dismissing the adverse action proceeding.
  1. 10
    Order
  1. [285]
    I make the following orders:
  1. That the application in matter B/2021/1 is dismissed.
  1. That the application in matter GP/2021/11 is dismissed.

Footnotes

[1]B/2021/1.

[2]GP/2020/11.

[3]Applicant's closing submissions filed 1 November 2021, [9] – [18].

[4]Ibid [116].

[5]Respondent's closing submissions filed 30 November 2021, [3]-[5].

[6]The Respondent was established by the TAFE Queensland Act 2013 as a statutory body from 1 July 2014, prior to which it comprised part of the Department of Education and Training.

[7]Exhibit 23 – Affidavit of Brian Heim dated 27 August 202, [65] – [66].

[8]T1-18 l 43 - T1-19 l 41 (Watton).

[9]T1-26 l 37 - T1-27 l 22 (Watton);  See also T2-20 ll 16-23 and T2-25 l9-T2-26 l2 (Adcock);  T1‑115 ll 14-24 (Grice).

[10]T1-20 ll 1-20 (Watton).

[11]Exhibit 1 – Affidavit of Mr Watton dated 22 January 2021, [48] and Exhibits M-N.

[12]Ms SB [2014] FWC 2104 ('Ms B'), [34].

[13](2015) 247 IR 274 at 302 ('Mac').

[14]But is not limited to.

[15]Appellant v Respondent (2015) 249 IR 142.

[16](2014) 244 IR 127 ('Re SB').

[17]Re SB, [49] – [53].

[18]Appellant v Respondent [2015] FWCFB 1972, [30].

[19]s 273 of the IR Act

[20][2019] ICQ 18 per Martin J ('Campbell').

[21]Ibid [46] – [49].

[22]Exhibit 14 – Affidavit of Indunil Jayatilake dated 27 August 2021, [15].

[23]Exhibit 12 – Affidavit of Jade Salmond dated 27 August 2021, JS-11.

[24]See Applicant's closing submissions, [13].

[25]Exhibit 23 – Affidavit of Brian Heim dated 27 August 2021, [5]-[6].

[26]Exhibit 15 – Affidavit of Dr Ian Bryant Wells dated 27 August 2021, [23]-[24].

[27] Exhibit 15 – Affidavit of Dr Ian Bryant Wells dated 27 August 2021, [25].

[28]T1-38, ll 41-47.

[29]Exhibit 12 - Affidavit of Jade Salmond dated 27 August 2021.

[30]Ibid, JS-11.

[31]T1-18 l 38 to T1-49.

[32]Exhibit 16 – Affidavit of Dr Allan Beasley dated 27 August 2021, [29], 'AB-2'.

[33]Exhibit 16 – Affidavit of Dr Allan Beasley dated 27 August 2021, [30]-[32].

[34]Exhibit 16 – Affidavit of Dr Allan Beasley dated 27 August 2021, [33]-[34].

[35]Ibid [35].

[36]T1-40 ll 19-21.

[37]T1-40 l 30.

[38]Exhibit 16 – affidavit of Dr Allan Beasley dated 27 August 2021.

[39]T1-87 ll 4-5.

[40]Exhibit 23 – Affidavit of Brian Heim dated 27 August 2021, 'BH-4'.

[41]Ibid.

[42]Exhibit 12 – Affidavit of Jade Salmond dated 27 August 2021, [113]-[114].

[43][2021] QIRC 255. ('Gilbert').

[44]Ibid [14] – [16].

[45]Section 284(1)(c)(ii) of the IR Act.

[46]Gilbert, [24].

[47]Ibid [24].

[48]Gilbert, [26] – [31].

[49]Gilbert, [28] citing Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 ('Barclay'); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 (BHP Coal).

[50]Gilbert, [35].  See the review of authorities in Australian Red Cross Society v Queensland Nurses' Union of Employees [2019] FCAFC 215, [64-[74];  See also Tattsbet Ltd v Morrow (2015) 233 FCR 46, [119];  Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273, [76];  Australian Building and Construction Commissioner v Hall (2018) 277 IR 75 (ABCC v Hall), [13]-[19].

[51]Gilbert, [37].

[52][2013] FCA 763.

[53]United Firefighters Union of Australia v Easy [2013] FCA 763, [41].

[54]ABCC v Hall [2018] FCAFC 88, [13]-[14].

[55]See Sabapathy v Jetstar Airways [2021] FCAFC 25, [39]-[41].

[56]Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; 256 FCR 306;  274 IR 420, [102].

[57]Gilbert v Metro North Hospital and Health Service and Ors [2021] QIRC 255, [32].

[58]Gilbert, [38] citing Barclay, [44]-[45].

[59]Gilbert, [38] citing Barclay, [44]-[45].

[60]Gilbert, [40] citing Barclay, [127].

[61]Gilbert, [43].

[62]Applicant's Amended Statement of Facts and Contentions filed 28 May 2021, [32] – [33] and Applicant's closing submissions filed 1 November 2021, [28].

[63]Jones v Queensland Tertiary Admissions Centre Ltd (No 2) FCA 399 at [81] – [82]; Police Federations of Australia v Nixon [2008] FCA 467 at [48]; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525 at [114].

[64]Exhibit 12 – Affidavit of Jade Salmond dated 27 August 2021, [110].

[65]Exhibit 23 – Affidavit of Dr Brian Heim dated 27 August 2021, [139] – [140].

[66]Applicant's Amended Statement of Facts and Contentions filed 28 May 2021, [35].

[67]Ibid [47].

[68]Exhibit 23 – Affidavit of Brian Heim dated 27 August 2021, [84] – [84].

[69]Exhibit 23 – Affidavit of Brian Heim dated 27 August 2021, [75] – [77].

[70]T4-50 ll 25-38.

[71]Exhibit 23 – Affidavit of Brian Heim dated 27 August 2021, [89].

[72]Ibid [105] – [107].

[73]Exhibit 1 – Affidavit of Rodney Peter Watton dated 22 January 2021, [34], [42], [48] and [83].

[74]Ibid [42].

[75]Exhibit 23 – Affidavit of Brian Heim dated 27 August 2021, 'BH23'.

[76]Ibid [87].

[77]Applicant's Amended Statement of Facts and Contentions filed 28 May 2021, [33].

[78]Exhibit 1 – Affidavit of Rodney Peter Watton dated 22 January 2021, [26] – [31].

[79]Exhibit 20 – Affidavit of Dr Paul Wilson dated 9 September 2021, [36] – [49].

[80]Although it is referred to at [31](b) in support of a bullying allegations.

[81]Exhibit 1 – Affidavit of Rodney Peter Watton dated 22 January 2021, [83].

[82]Ibid, [44] – [45].

[83]Exhibit 23 – Affidavit of Brian Heim dated 27 August 2021, [89] – [90].

[84]Exhibit 1 – Affidavit of Rodney Peter Watton dated 22 January 2021, [83].

[85]Exhibit 23 – Affidavit of Brian Heim dated 27 August 2021, [73] – [74].

[86]Applicant's Amended Statement of Facts and Contentions filed 28 May 2021, [37](b)(iv).

[87]Exhibit 23 – Affidavit of Brian Heim dated 27 August 2021, [169] – [170].

[88]Applicant's Amended Statement of Facts and Contentions filed 28 May 2021, [37](6)(v).

[89]It appears that the Applicant erroneously refers to the TAFE Queensland Employees Certified Agreement 2016 rather than the TAFE Queensland Educators Certified Agreement 2016.

[90]Applicant's Amended Statement of Facts and Contentions filed 28 May 2021, [39].

[91]T1-76 l 21 – T1-77 l 17; T1-77 ll 33-44.

[92]Applicant's Amended Statement of Facts and Contentions filed 28 May 2021, [41].

[93]Exhibit 23 – Affidavit of Brian Heim dated 27 August 2021, 'BH27'.

[94]Exhibit 23 – Affidavit of Brian Heim dated 27 August 2021, [92] – [95].

[95]Applicant's Amended Statement of Facts and Contentions filed 28 May 2021, [43].

[96]Applicant's Amended Statement of Facts and Contentions filed 28 May 2021, [45].

[97]Exhibit 1 – Affidavit of Rodney Peter Watton dated 22 January 2021, [65]-[66].

[98]Exhibit 23 – Affidavit of Brian Heim dated 27 August 2021, [105] – [106].

[99]Applicant's Amended Statement of Facts and Contentions filed 28 May 2021, [48].

[100]Exhibit 1 – Affidavit of Rodney Peter Watton dated 22 January 2021, [75].

[101]Exhibit 23 – Affidavit of Brian Heim dated 27 August 2021, [109] – 113].

Close

Editorial Notes

  • Published Case Name:

    Watton v TAFE Queensland (No. 3)

  • Shortened Case Name:

    Watton v TAFE Queensland (No. 3)

  • MNC:

    [2023] QIRC 303

  • Court:

    QIRC

  • Judge(s):

    Hartigan DP

  • Date:

    19 Oct 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
ABCC v Hall [2018] FCAFC 88
1 citation
Jump To
Cite 1 - [2018] FCAFC 88
Appellant v Respondent (2015) 249 IR 142
2 citations
Jump To
Cite 1 - (2015) 249 IR 142
Cite 2 - (2015) 249 IR 142
Australian Building and Construction Commissioner v Hall (2018) 277 IR 7
1 citation
Jump To
Cite 1 - (2018) 277 IR 7
Australian Building and Construction Commissioner v Hall (2018) 277 IR 75
1 citation
Jump To
Cite 1 - (2018) 277 IR 75
Australian Red Cross Society v Queensland Nurses' Union of Employees [2019] FCAFC 215
1 citation
Jump To
Cite 1 - [2019] FCAFC 215
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FLA 525
1 citation
Jump To
Cite 1 - [2013] FLA 525
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
2 citations
Jump To
Cite 1 - (2012) 248 CLR 500
Cite 2 - (2012) 248 CLR 500
Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18
2 citations
Jump To
Cite 1 - [2019] ICQ 18
Cite 2 - [2019] ICQ 18
Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222
2 citations
Jump To
Cite 1 - [2017] FCAFC 222
Cite 2 - [2017] FCAFC 222
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243
2 citations
Jump To
Cite 1 - (2014) 253 CLR 243
Cite 2 - (2014) 253 CLR 243
Gilbert v Metro North Hospital Health Service [2021] QIRC 255
3 citations
Jump To
Cite 1 - [2021] QIRC 255
Cite 2 - [2021] QIRC 255
Cite 3 - [2021] QIRC 255
Greenall v State of Queensland (Queensland Corrective Services) [2021] QIRC 264
1 citation
Jump To
Cite 1 - [2021] QIRC 264
Mac v Bank of Queensland Ltd (2015) 247 IR 274
2 citations
Jump To
Cite 1 - (2015) 247 IR 274
Cite 2 - (2015) 247 IR 274
Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273
1 citation
Jump To
Cite 1 - (2015) 238 FCR 273
Police Federation of Australia v Nixon [2008] FCA 467
2 citations
Jump To
Cite 1 - [2008] FCA 467
Cite 2 - [2008] FCA 467
Printing and Kindred Industries Union and Another v Visy Packaging Pty Ltd and Others (No 3) [2013] FCA 525
1 citation
Jump To
Cite 1 - [2013] FCA 525
Re SB (2014) 244 IR 127
2 citations
Jump To
Cite 1 - (2014) 244 IR 127
Cite 2 - (2014) 244 IR 127
Sabapathy v Jetstar Airways [2021] FCAFC 25
1 citation
Jump To
Cite 1 - [2021] FCAFC 25
Tattsbet Ltd v Morrow (2015) 233 FCR 46
1 citation
Jump To
Cite 1 - (2015) 233 FCR 46
United Firefighters Union of Australia v Easy [2013] FCA 763
3 citations
Jump To
Cite 1 - [2013] FCA 763
Cite 2 - [2013] FCA 763
Cite 3 - [2013] FCA 763

Cases Citing

Case NameFull CitationFrequency
Talbot v State of Queensland (Queensland Police Service) [2025] QIRC 2002 citations
1

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