Sloan v TAFE Queensland[2024] QIRC 139

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Reasons for Decision

ex tempore

Introduction

1. [1]
   Mr Joseph Sloan is employed as a Vessel Master with TAFE Queensland (‘the respondent’). Mr Sloan has had a previous period of employment with the respondent, but his most recent engagement extends back to 2019.

2. [2]
   On 30 October 2023, Mr Sloan was suspended with pay.^[1] On 13 November 2023, Mr Sloan was provided with show cause correspondence setting out the particulars of 10 allegations for which the respondent considered he may be liable to discipline (‘the show cause letter’).^[2]

3. [3]
   On 27 November 2023 Mr Sloan filed an application for an order to stop bullying (‘the application’) pursuant to s 273 of the Industrial Relations Act 2016 (Qld) (‘IR Act’).

4. [4]
   In accordance with the requirements of s 274 of the IR Act, the matter was listed for mention on 5 December 2023 to ascertain the degree of priority required to be given to the matter. At that mention, the parties agreed to participate in a conciliation conference to be scheduled on 8 January 2024.  At the time of the conference, Mr Sloan was represented by an industrial advocate.

5. [5]
   A significant barrier to meaningful conciliation at the conference on 8 January 2024 was the inadequate particulars contained in the application. There was little (if any) information addressing the statutory elements to support a complaint of bullying, and to the extent there was, it was difficult to discern. It was agreed at the conference that Mr Sloan would file an amended application setting out particulars of his bullying allegations. In furtherance of this, the respondent arranged for Mr Sloan to have access to his work laptop.

6. [6]
   Despite Mr Sloan’s advocate appearing to understand he was to file an amended application, he instead filed submissions ostensibly in support of the application on 16 February 2024. In circumstances where the submissions provided some degree of clarity about the allegations, and out of a desire to avoid technicalities, the Commission determined to accept the submissions in lieu of the particulars sought, subject to the respondent’s attitude.

7. [7]
   The matter was listed for further mention on 5 March 2024 to ascertain whether the respondent was in a position to file a response to the application. The respondent advised the Commission that, in their view, the particulars did not reveal a case by reference to the bullying provisions of the IR Act. The respondent sought an exercise of the Commission’s discretion pursuant to s 541 of the IR Act to refrain from dealing with the application (‘the interlocutory application’).

8. [8]
   Having regard to the application and the supporting submissions, the Commission was also of the view that, inter alia, the matters it contained could not objectively give rise to a reasonable belief of bullying as required by s 273 of the IR Act.

9. [9]
   The Commission’s views in this regard were explained to Mr Sloan’s advocate in a detailed (but by no means exhaustive) list of examples at that mention.^[3] In short, the disciplinary process that triggered the complaint, and the various interactions with management that were said to make up the acts of bullying, had all the hallmarks of legitimate and (arguably) reasonable management action. Moreover, there was no particulars or evidence referred to that would objectively support any other conclusion. This was explained at length to Mr Sloan’s advocate as matters he would need to address in any submissions resisting the respondent’s application to refrain from dealing with the matter.

10. [10]
    Consequently, Directions were issued on 6 March 2024 requiring the parties to file submissions with respect to whether the Commission ought to exercise its discretion to refrain from further dealing with the application pursuant to s 541 of the IR Act.

11. [11]
    On 20 March 2024, Mr Sloan’s advocate withdrew.

Submissions

12. [12]
    Mr Sloan filed his submissions on 2 April 2024.^[4] The respondent filed submissions on 16 April 2024. ^[5] Mr Sloan’s reply submissions were received by the Registry on 30 April 2024.^[6]

13. [13]
    Following the filing of submissions, the matter was listed for hearing before the Commission on 22 May 2024 to allow the parties to speak to their submissions.  Mr Sloan had the opportunity at the hearing to make further oral submissions and to address questions from the Commission.

14. [14]
    The submissions of the parties will not be summarised here. The salient portions will be referred to in the Commission’s consideration later in these reasons.

Discretion to refrain from dealing with the application

15. [15]
    Section 541 of the IR Act vests in the Commission a discretion to dismiss a cause or refrain from hearing or deciding a cause if the Commission considers that further proceedings by the Commission are not necessary or desirable in the public interest.^[7]

16. [16]
    In Campbell v State of Queensland (Department of Justice and Attorney-General),^[8] Martin J in dealing with an application pursuant to s 541 of the IR Act wrote:

[27] Insofar as it may confine the exercise of discretion under s 541, the purpose of the Act is stated as follows:

"3 Main purpose of Act

The main purpose of this Act is to provide for a framework for cooperative industrial relations that -

1. is fair and balanced; and

2. supports the delivery of high quality services, economic prosperity and social justice for Queenslanders."

[28]  The process for consideration of an application under s 541 does not require that the respondent's case be taken at its highest.  The cognate provisions in federal legislation were frequently considered by Full Benches of the federal tribunal, the Federal Court of Australia and the High Court of Australia.  The accepted approach was that the applicant bore the onus of making the claim for relief. But the ascertainment in any particular case of where the public interest lay often depended on a balancing of interests, including competing public interests, and was very much a question of fact and degree.

[29]  As the power given to the Commission by s 541 can prevent a party from pursuing relief otherwise available under the IR Act it is one which is to be exercised with due circumspection on a proper consideration of relevant materials. A "proper consideration" cannot be made where the case for the respondent is simply taken at its highest.  While the onus remains on an applicant, the requirement to consider the "public interest" cannot be satisfied if an artificial inflation of the respondent's case is applied.  Indeed, to take a respondent's case at its highest would almost always result in the dismissal of an application under this section.  On an application of this type, a respondent is not relieved of any requirement to advance a case.

[30]  In considering the public interest, regard must be had to the legislative basis of the principal relief sought and the evidence before the Commission …

(Emphasis added)

17. [17]
    Section 541 of the IR Act is indistinguishable from its predecessor, namely s 331 of the Industrial Relations Act 1999 (Qld). Section 331 relevantly provided:

The court or commission may, in an industrial cause -

…

2. dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers -

1. the cause is trivial; or

2. further proceedings by the court or commission are not necessary or desirable in the public interest.

18. [18]
    In State of Queensland v Lockhart,^[9] Deputy President O'Connor (as he then was) summarised the meaning of 'public interest' in relation to the exercise of discretion under s 331 in the following terms:

[21]  In O'Sullivan v Farrer, Mason CJ, Brennan, Dawson and Gaudron JJ considered the expression 'in the public interest'.  Their Honours wrote:

'Indeed, the expression, 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view'.'

[22]  In GlaxoSmithKline Australia Pty Ltd v Makin, the Full Bench of Fair Work Australia in considering what constitutes 'the public interest' wrote:

'Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades.  It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so.  The expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only by the objects of the legislation in question.

Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters, it seems to us that none of those elements is present in this case.' (citations omitted)

(Emphasis added)

Background

Background to the application to dismiss proceedings

19. [19]
    An enduring difficulty in this matter is the poor particularisation of Mr Sloan’s complaint. The initiating application provides little in the way of details with respect to the alleged exclusion on safety matters. To the extent it purports to particularise alleged bullying around the suspension, the pleadings are similarly lacking in descriptive detail. The pleadings also fail to clearly enunciate, by reference to individuals, which personnel of the respondent are accused of what acts of bullying.

20. [20]
    The written submissions filed by Mr Sloan’s former representative (in lieu of an amended application) provide some clarity. While still unclear in many ways, they are sufficient to isolate that the bullying alleged is in a broad category of ‘isolation’ (by reference to safety meetings and information) and the disciplinary process and suspension on 30 October 2023. As best as can be understood from the material, there are additional complaints about how Mr Sloan’s suspension was put into effect.

21. [21]
    Prior to the hearing, the parties filed written submissions in respect of the respondent’s application to dismiss proceedings. Each party attached documentation to their submissions. No objections were made about the documents filed by each party.  Those submissions and the documentation added further to the Commission’s understanding of the complaint, and provided helpful insight into the evidence that would be relied on by each party at a hearing of the substantive application.^[10]

22. [22]
    Finally, at the hearing of the interlocutory application Mr Sloan provided responses to questions from the Commission about matters raised in the submissions and more generally. The responses from Mr Sloan addressed a number of antecedent factual matters the Commission regarded as relevant to evaluating the exercise of its discretion pursuant to s 541 of the IR Act.

23. [23]
    In particular, Mr Sloan confirmed that he continued to be absent from the workplace by virtue of the direction given to him on 30 October 2023. He confirmed he continued to be paid his wages.

Genesis of the workplace dispute

24. [24]
    Mr Sloan confirmed at the hearing that the genesis of the disputation between the parties was the disagreement with management about the manner in which they dealt with his safety concerns in 2020.^[11] In very simple terms, Mr Sloan held a firm ‘professional opinion’ that the access to his vessel was unsafe, and he sought to (and did) communicate his concerns to the relevant manager. The response from management was, in Mr Sloan’s view, inadequate.

25. [25]
    Thereafter, the matter was escalated by Mr Sloan to the Australian Maritime Safety Authority (AMSA) who subsequently dispatched an Inspector to examine Mr Sloan’s concerns. Following the inspection and at least one meeting with the relevant managers, the AMSA Inspector expressed the view that the existing arrangements were ‘satisfactory’. An email to the concerned parties (including Mr Sloan) confirms this but also sets out steps to be taken to tighten safety.^[12]

26. [26]
    It would appear that Mr Sloan did not accept any of this as a satisfactory response to his concerns. The Commission is not required to determine whether Mr Sloan was correct to hold this view, though the recent addition of a gangplank after four years and (apparently) numerous injuries might suggest he was. This issue is only relevant for the purpose of identifying that it appears to have been the issue that became the catalyst for three years of ongoing disputation between Mr Sloan and the respondent’s managers.

Allegations of bullying

27. [27]
    Having had two opportunities to properly particularise his allegations of bullying, the precise nature of the complaints remains unclear. Having said that, a clear theme of Mr Sloan’s application and submissions is that he contends he was excluded from safety matters, either from attending relevant meetings or by way of denial of access to information regarding incidents etc.  Mr Sloan contends the architect of this exclusion was Mr Phillip Williams.^[13]

28. [28]
    It is relevant to note that safety concerns of the type complained of by Mr Sloan would have been wholly amendable to a notice of industrial dispute pursuant to Part 2, Chapter 6 of the IR Act, and possible intervention by this Commission. But in all the years Mr Sloan says he held these concerns, he made no effort to exercise his right to lodge a dispute with the Commission. Additionally, it is noted that Mr Sloan did, on at least one occasion, evoke the involvement of AMSA to investigate his concerns, but the investigator was satisfied with safety measures in place.

29. [29]
    It is more than apparent from documentation attached to both the respondent’s and Mr Sloan’s filed material, that there was no shortage of dialogue, input, and involvement on safety matters with Mr Sloan.^[14] While those documents likely do not make up the totality of evidence relevant to the alleged ‘exclusion’, they clearly portray Mr Sloan as being engaged by the respondents on safety and having no difficulty communicating his views.^[15]

30. [30]
    A more nebulous allegation in Mr Sloan’s application relates to his relationship with his manager Mr Richard Galeano. Between 2020 and 2023, Mr Sloan informed the Commission (at the hearing) that he had filed numerous formal grievances in respect of the conduct of Mr Galeano.^[16] The basis for the grievances were not fully particularised but there are numerous documents attached to the respondent’s materials that demonstrate an extremely fraught history between Mr Sloan and Mr Galeano.^[17]

31. [31]
    At the hearing, Mr Sloan contended that he had exercised his rights (numerous times) to address the conduct of Mr Galeano in accordance with the relevant grievance procedure.^[18] Notwithstanding his willingness to do this, apparently repeatedly, Mr Sloan never escalated the grievance to this Commission as he was entitled to do.^[19]

32. [32]
    Also of relevance was the confirmation by Mr Sloan that he made a workers’ compensation application in late 2022 in relation to inter alia some of his ongoing concerns with safety and with Mr Galeano.^[20] Mr Sloan confirmed that WorkCover Qld rejected his application on the basis that the stressors identified amounted to ‘reasonable management action taken in a reasonable way’.^[21] Mr Sloan did not seek a review of that decision as he was entitled to do.^[22]

33. [33]
    When asked by the Commission about the disciplinary process now underway, Mr Sloan attempted to suggest that Mr Galeano was the architect of the disciplinary process commenced against him on 30 October 2023.^[23] When pressed by the Commission for evidence to support this, Mr Sloan essentially conceded that he had no proof.^[24]

34. [34]
    When asked about other managers who were said to be engaging in bullying, Mr Sloan purported to name another manager, a Ms Barchetti, and provided some short particulars of her alleged bullying conduct.  This allegation was not contained anywhere in any of the material filed by Mr Sloan in this matter previously and will not be further considered in these proceedings. Mr Sloan has had ample opportunities to particularise this complaint and complaints about other managers but has failed to do so satisfactorily.  

35. [35]
    Having regard to the application and submissions supporting it, the submissions filed by Mr Sloan in respect of s 541 of the IR Act, and the responses he provided to the Commission at hearing, the first observation of the Commission is that there are at least two potential (but significant) deficiencies in the application that, even on Mr Sloan’s own submissions, he is unlikely to overcome.

Deficiencies in the application

No ‘reasonable belief’

36. [36]
    Section 273 of the IR Act provides:

An employee who reasonably believes the employee has been bullied in the workplace may apply to the commission for an order under section 275.

(Emphasis added)

37. [37]
    To have standing to make his application, Mr Sloan must have a ‘reasonable belief ‘that he has been bullied. Such a belief must be objectively supported by evidence or some rational basis for holding the belief.^[25]

38. [38]
    In respect of the allegations regarding the exclusion around issues of safety, Mr Sloan has produced some evidence in the form of an email chain attached to his reply submissions.^[26] In his written submission accompanying the email chain, Mr Sloan describes it as follows:

I have attached an email chain that starts with the senior advisor maintenance and safety refusing to supply me with WH&S information regarding incidents on my vessel. It leads to the director of marine Phil Williams clearly refusing me WH&S information I need to do my job as Vessel Master (Captain) I explain the need for this information to my role. Why am I excluded from this information directly related to my role?

39. [39]
    Without descending to the details, the email chain reveals an unresolved difference of opinion between Mr Sloan and his managers regarding his entitlement to access to certain information regarding safety issues in 2022. It is a difference that appears consistent with the earlier difference discussed above regarding the question of safe access to the vessel in 2020.

40. [40]
    On any view of this evidence provided by Mr Sloan, it does not objectively support a claim of bullying. Viewed objectively, it demonstrates that management did not agree with Mr Sloan about his expectation to be included in some safety discussions or provide with certain safety information.^[27]  Whether they were correct about this, or whether Mr Sloan was correct is not relevant. What is relevant is that the views expressed by management that are in evidence before the Commission reveal nothing more sinister than an unresolved difference of opinions.

41. [41]
    To unreasonably ‘exclude’ someone as an act of bullying connotes an implicit understanding that the person being excluded was otherwise reasonably entitled to be included. Regardless of whether the managers in this instance were incorrect in their views, their views expressed in the emails appear to be genuinely held. It is therefore not possible for this evidence to objectively support a reasonable belief that the managers authoring emails in the annexed chain were unreasonably ‘excluding’ Mr Sloan. It follows that it is not possible to conclude that Mr Sloan could have reasonably believed he had been bullied.

42. [42]
    This conclusion is only strengthened when regard is had to the numerous other documents attached to the respondent’s material that tend to demonstrate consistent, open and meaningful engagement with Mr Sloan on matters of safety.^[28]

43. [43]
    It is more than apparent from consideration of this aspect of Mr Sloan’s own evidence that he has a misconceived view of the nature of ‘exclusion’ which, in the Commission’s view, tends to undermine his complaints of exclusion generally.

44. [44]
    In respect of the disciplinary process, Mr Sloan was entirely unable to produce any evidence to support his theory that it was instigated for nefarious purposes by Mr Galeano. That alone defeats any objective characterisation of the process as bullying.

45. [45]
    But additionally, the show cause letter sets out the particulars of ten allegations in some detail. While not required to do so, Mr Sloan filed his responses to the allegations with the Commission on 19 February 2024. It is clear from those responses that the conduct associated with the allegations is (in many instances) not contested by Mr Sloan, only the characterisation of the conduct as improper.

46. [46]
    Many of the allegations are plainly a result of complaints about Mr Sloan’s conduct by various named or unnamed persons. Witnesses are also identified in some cases. Some of the allegations include allegations of aggressive conduct by Mr Sloan. It is noted that Mr Sloan has already been the subject of two prior written warnings relating to similar aggressive conduct.^[29]

47. [47]
    On objective consideration by the Commission, the show cause letter is devoid of any hint of impropriety. It may well be that Mr Sloan rejects each of the allegations. He may well have compelling answers to each one, and he may even avoid disciplinary action when his responses are fully considered. All of those things can be true without them undermining the validity and reasonableness of the disciplinary process to which he is currently being subjected.

48. [48]
    Mr Sloan’s submission is that Mr Galeano somehow orchestrated the entire disciplinary process as an act of bullying.^[30] Such a suggestion in the absence of Mr Sloan producing any evidence to support it speaks to the degree of enmity he holds for Mr Galeano. Such a theory, absent of any evidence to support it, tends towards the ‘irrational or absurd’ referred to by Hatcher VP (as he then was) in Mac v Bank of Queensland Ltd.^[31]

49. [49]
    There is a very large difference between believing something and proving it. While the Commission accepts that Mr Sloan believes Mr Galeano orchestrated the disciplinary process, that is not enough to objectively (or rationally) support a reasonable belief of bullying.^[32]

50. [50]
    The Commission is not satisfied on the submissions provided by Mr Sloan that there is any evidence objectively supporting a conclusion of ‘reasonable belief’ of bullying. It is entirely understandable that Mr Sloan might have found his interactions on these various matters with management to be confronting and unpleasant. His reaction in that regard might even be valid in some respects.

51. [51]
    However, protracted disputation, rooted in robustly held differing opinions, should not be conflated with the notion of bullying. This is especially so where, having regard to the documents attached to the submissions of both parties, it appears that Mr Sloan was more than capable of asserting his views, voicing his concerns, contradicting management when he disagreed with them, and lodging formal complaints.^[33]

52. [52]
    Mr Sloan’s characterisation of his dispute with his employer as ‘bullying’ is wholly misconceived. It is impossible to accept that Mr Sloan will improve his position on these matters. He has had ample opportunity to properly plead and re-plead particulars of his complaint. In all of those circumstances the Commission considers that it is unlikely Mr Sloan will be able to demonstrate the requisite ‘reasonable belief’.

Prerequisites for exercise of discretion to make an order not satisfied

53. [53]
    Section 275 of the IR Act relevantly provides:

1. This section applies if—

1. an employee has made an application under section 273 ; and

2. the commission is satisfied that—

1. the employee has been bullied in the workplace; and

2. there is a risk that the employee will continue to be bullied in the workplace.

2. The commission may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the employee from being bullied in the workplace.

(Emphasis added)

54. [54]
    Section 275 of the IR Act prescribes prerequisite findings essential to enliven the Commission’s jurisdiction to make an order under this part. In particular, both criteria set out in s 275(1)(b) of the IR Act must be met before the Commission has jurisdiction to make a stop bullying order. Even where the Commission might be satisfied a person has been bullied, it cannot make an order if the person is not at risk of continued bullying ‘in the workplace’.

55. [55]
    Having already concluded that Mr Sloan does not have an objectively supported basis to establish a reasonable belief of bullying, it follows that the Commission could not be satisfied he was bullied in the workplace as required by s 275(1)(b)(i) of the IR Act.

56. [56]
    Additionally, the Commission must be satisfied that there is a risk that Mr Sloan will ‘continue to be bullied in the workplace’.

57. [57]
    In Bowker v DP World Melbourne Ltd the Full Bench of the Fair Work Commission considered the language ‘bullied at work’ found at s 789FD(1)(a) of the Fair Work Act 2009 (Cth) (‘the FWA’) and concluded:^[34]

We have concluded that the legal meaning of the expression ‘while the worker is at work’ certainly encompasses the circumstance in which the alleged bullying conduct (ie the repeated unreasonable behaviour) occurs at a time when the worker is ‘performing work’. Further, being ‘at work’ is not limited to the confines of a physical workplace. A worker will be ‘at work’ at any time the worker performs work, regardless of his or her location or the time of day. As we have mentioned, the focal point of the definition is on the worker (ie the applicant). The individual(s) who engage in the unreasonable behaviour towards the worker need not be ‘at work’ at the time they engage in that behaviour.

While a worker performing work will be ‘at work’ that is not an exhaustive exposition of the circumstances in which a worker may be held to be at work within the meaning of s. 789FD(1)(a). For example, it was common ground at the hearing of this matter that a worker will be ‘at work’ while on an authorised meal break at the workplace and we agree with that proposition. But while a worker is on such a meal break he or she is not performing work. Indeed by definition they are on a break from the performance of work. It is unnecessary for us to determine whether the provisions apply in circumstances where a meal break is taken outside the workplace.

In our view an approach which equates the meaning of ‘at work’ to the performance of work is inapt to encompass the range of circumstances in which a worker may be said to be ‘at work’.

It seems to us that the concept of being ‘at work’ encompasses both the performance of work (at any time or location) and when the worker is engaged in some other activity which is authorised or permitted by their employer, or in the case of a contractor their principal (such as being on a meal break or accessing social media while performing work).

(Emphasis added)

58. [58]
    The Full Bench in Bowker have adopted an approach long since established with other types of proceedings requiring some relationship to the place of employment i.e. that an employee does not necessarily have to be physically in their workplace performing work to hold certain rights or be entitled to certain remedies. But the language of the IR Act is subtly different.

59. [59]
    Section 272 of the IR Act (in contrast to s 789FD of the FWA) defines the proscribed conduct under a heading ‘When is an employee bullied in the workplace’. While the terminology broadens at s 272(1)(a) to ‘while the employee is at work’, it returns to the reference ‘in the workplace’ for the prerequisite conditions contained at s 275 of the IR Act.

60. [60]
    There is arguably a distinction to be made between the provisions of the IR Act and the term ‘at work’ in the FWA. The term ‘workplace’ is analogous with the more limited notion of a physical site or location as opposed to ‘at work’ which encapsulates both the place and the performance of work. But on its plain meaning in the context of the modern working relationship, a person’s workplace is not limited to a physical location. It is more apt to include any place that an employee performs work. This could include their home.

61. [61]
    Further, the term ‘workplace’ in s 275 of the IR Act is not used in a generic sense. The IR Act refers to the work or the workplace in the context of ‘the’ employee and the allegations of bullying they have made. The meaning of ‘workplace’ or ‘at work’ will therefore be derived from the unique facts of each complaint which would include the employee’s place and manner of work, and where or how the alleged bullying occurred. Only upon establishing these facts can the relevant workplace be identified, and only then can the risk referred to in s 275 of the IR Act can be properly evaluated.

62. [62]
    Further, consistent with the conclusion in Bowker, the notion of a workplace will be inextricably linked to the performance of work, or some other authorised activity e.g., a meal break etc.

63. [63]
    Additionally, an evaluation of the risk referred to in s 275 of the IR Act in any particular matter ought to be informed by any ancillary finding of the Commission regarding evidence (or absence of evidence) of an objectively supported ‘reasonable belief’ of bullying.

64. [64]
    Mr Sloan has failed to demonstrate to the Commission how any of the matters he complains of are objectively supported by the evidence sufficient to give rise to a reasonable belief of bullying. That earlier conclusion of the Commission is therefore one of the relevant considerations to the Commission’s evaluation of risk in its consideration of s 275 of the IR Act in this matter.

65. [65]
    A significant problem for Mr Sloan’s application is that he is not ‘in the workplace’. He has been suspended with pay since October 2023. While full evidence as to what might constitute Mr Sloan’s workplace has not been heard, it is plain as to what is not his workplace. In response to a question from the Commission at hearing, Mr Sloan confirmed he has no contact with his employer during his suspension and is not responsible for performing any of his duties.^[35]

66. [66]
    In those circumstance, while he remains suspended, there can be no risk that Mr Sloan will continue to be bullied in the workplace. While the evaluation of risk can include consideration of risk that may arise on Mr Sloan’s return to work, there is no pleading or particular that would suggest any bullying would occur if he returned.

67. [67]
    For completeness, it is not lost on the Commission that one of the acts of bullying alleged by Mr Sloan is the very suspension that has removed him from the workplace. While it is readily anticipated that the manner in which a directed absence is put into effect might amount to bullying in the workplace, it is more problematic to characterise the effect of such a suspension i.e. absence from the workplace, as bullying.

68. [68]
    Certainly, there are examples in other statutory contexts where e.g. a suspension may amount to adverse action.^[36] However, in those other statutory contexts a disciplinary process (including suspension) will not be adverse action where there is reasonable or adequate cause to commence it.^[37] The facts of each case will determine whether the effect of a suspension per se is bullying in the workplace.^[38] Those conclusions are apposite in these proceedings also.

69. [69]
    The Commission has previously considered the evaluation of risk of continued bullying in the context of a complainant having been directed to not attend work in Wilkins v Council of the City of Gold Coast (‘Wilkins’).^[39] To the extent that a temporary (directed) absence is a common fact between this matter and Wilkins, this matter is ultimately distinguishable on its facts.

70. [70]
    In Wilkins the applicant was directed not to attend the workplace pending resolution of a question of his medical fitness to do so. This direction occurred on a background of a detailed list of allegations of bullying. The respondent in those proceedings sought dismissal of the applicant’s stop bullying application pursuant to s 541 of the IR Act.

71. [71]
    In evaluating the application, Deputy President Merrell in Wilkins declined the application to dismiss proceedings because inter alia he was unable to be satisfied (on the evidence he had available at the time of hearing of the application to dismiss) that bullying had not occurred.^[40]

72. [72]
    In Mr Sloan’s matter the merits of the allegations that constitute the basis for the application are considered earlier in these reasons. While there has not been full argument in relation to these matters there is already, on the documents and submissions relied on by the parties (including Mr Sloan’s responses to the Commission at hearing) a reliable basis to conclude the matters complained of do not give rise to a reasonable belief of bullying as required by s 273 of the IR Act.

73. [73]
    In those circumstances, if the Commission is unable to be satisfied that the evidence relied on by Mr Sloan will reach the jurisdictional threshold of ‘reasonable belief’ then it follows there is a conclusion there was no bullying before Mr Sloan was suspended. On that basis there can be no grounds to conclude there is a ‘real’ risk of bullying after his return.^[41]  

74. [74]
    In the absence of evidence supporting a conclusion that Mr Sloan is at risk of ‘continued’ bullying,  Mr Sloan’s application could never meet the criteria required by s 275(1)(b)(ii) of the IR Act to enliven the power to make an order.

Other matters

75. [75]
    For completeness it ought to be noted that the Commission holds some concerns that the conduct complained of by Mr Sloan was neither unreasonable nor repeated. A mere finding that there was some act of unreasonable conduct on the part of the respondent will not be sufficient to establish unreasonable behaviour within the meaning of s 272 of the IR Act.^[42]

76. [76]
    In Re SB Hampton C held:^[43]

Unreasonable behaviour should be considered to be behaviour that a reasonable person, having regard to the circumstances, may consider to be unreasonable. That is, the assessment of the behaviour is an objective test having regard to all the relevant circumstances applying at the time.

77. [77]
    Even if the respondent’s managers were mistaken in some or all of their actions that deprived Mr Sloan of access to safety discussions or information, Mr Sloan only pleads their refusals. He does not plead any fact that would tend towards a conclusion, on the balance of probability, that his alleged exclusion was motivated by actions that were objectively unreasonable.

78. [78]
    In the Commission’s view, a manager or other employee who acts on a mistaken but otherwise genuinely held belief could not be found to have acted unreasonably for the purposes of s 272 of the IR Act. On the documentary evidence submitted by both parties, the evidence overwhelmingly supports a conclusion that Mr Sloan was included (where appropriate) in discussions and information about safety matters.^[44] And where he was refused information, Mr Sloan’s own attached documents confirm a detailed and (objectively) reasonable explanation by Mr Williams as to why he was not included.^[45]

79. [79]
    Further, with respect to the manner in which Mr Sloan’s suspension was put into effect, there is no doubt that Mr Sloan may have found that process upsetting. But the scenario he describes in his submission, while tinted with his personal perception, falls wholly within the typical scenario for suspension of an employee. It is entirely within reasonable bounds of conduct for an employer required to suspend an employee alleged to have engaged in misconduct. The fact that Mr Sloan found it upsetting does not make it unreasonable.

80. [80]
    Finally, Mr Sloan has not clearly pleaded how (or if) he intends to demonstrate any risk to his health and safety. The definition of bullying contained at s 272 of the IR Act requires an applicant to demonstrate the conduct complained of poses such a risk.

81. [81]
    Mr Sloan attached two medical related documents to his submissions filed on 19 February 2024.  The first was an extract of the clinical notes of his General Practitioner dated 13 December 2022. It relates to his attendance prior to making the (unsuccessful) claim for workers’ compensation. It is not a contemporary record of Mr Sloan’s mental health.

82. [82]
    The second document is letter to the Commission from Mr Robert Bright, Consultant Psychologist dated 12 February 2024. It is of no use to the Commission. It is replete with opinions about Mr Sloan’s workplace that are plainly mere regurgitations of what Mr Sloan has reported. Astonishingly the letter culminates in Mr Bright purporting to conclude that Mr Sloan has been constructively dismissed. How or why Mr Bright feels qualified to make such a statement about such a complex legal concept is not explained.

83. [83]
    Apart from his ostentatious display of partisan support for Mr Sloan, Mr Bright wholly fails to inform the Commission about Mr Sloan’s mental state as at February 2024, any relevant diagnosis, and the impact on any such condition if the alleged events at the workplace were to continue. In short, the letter of Mr Bright provides no relevant or useful information at all.  

Public interest

84. [84]
    The conclusions of the Commission set out in these reasons are arrived at having regard to written submissions and attached documents filed by the parties Additionally the Commission has had regard to submissions given orally by Mr Sloan at hearing. The attached documentation accompanying the parties’ written submissions, while not all mentioned expressly in these reasons, also aided the Commission’s understanding of the matter.

85. [85]
    While it is important to recognise that Mr Sloan has not yet had an opportunity to fully test his theories about Mr Galeano or to more fulsomely expand on his purported ‘reasonable belief’ of bullying in the workplace, the utility of allowing him to do so at hearing must be weighed against the public interest.

86. [86]
    It is apposite to revisit the words of (former) President Martin set out earlier in these reasons in Campbell:^[46]

The process for consideration of an application under s 541 does not require that the respondent's case be taken at its highest…The accepted approach was that the applicant bore the onus of making the claim for relief. But the ascertainment in any particular case of where the public interest lay often depended on a balancing of interests, including competing public interests, and was very much a question of fact and degree.

(Emphasis added)

87. [87]
    Further, the Commission as currently constituted in Triplow v Leidos SAR Services Pty Ltd recently held:^[47]

While it is important not to take the respondent’s case 'at its highest' when contemplating the discretion given by s 541 of the IR Act, there is equally no requirement to take their case at its lowest. In a balanced consideration of interests, unless there was some compelling contradictory evidence, there should be no reason why the Commission could not rely on relevant contemporaneous correspondence as evidence of the reasons why a respondent took certain action.

88. [88]
    Having had multiple opportunities to present a semblance of a meritorious application, including an opportunity to file documents etc, nothing produced by Mr Sloan invites even the vaguest speculation of bullying. It may well be that Mr Sloan was correct in some of his views about safety or even his rights to access certain safety information. But it is a long journey from there, to a conclusion that the conduct of the respondent’s managers (seemingly informed by genuine, but different views) was bullying.

89. [89]
    Similarly, the disciplinary process that triggered Mr Sloan’s suspension on 30 October 2023 is apparently anything but an unusual occurrence in this employment relationship given the uncontested history of warnings already issued to Mr Sloan regarding similar aggressive conduct in the preceding years.^[48]

90. [90]
    Far from taking the respondent’s case at its highest, it is the readily apparent flaws in Mr Sloan’s own case that render the matter liable to be dismissed, though they alone are not necessarily enough. Even where there are grave concerns about jurisdictional barriers or misconceived arguments, it remains a significant step to refuse a party their right to be heard. A properly balanced consideration of the discretion allowed by s 541 of the IR Act will require the Commission to have before it compelling facts that the public interest favours the Commission exercising a discretion to dismiss or refrain from hearing a matter.

91. [91]
    The respondent indicated at the hearing that there is no intention at this time to review Mr Sloan’s suspension with respect to his receipt of remuneration.  If Mr Sloan were given the opportunity to have his application heard, it would invariably take many more months to do so and would ultimately see him continue to receive full pay while the disciplinary process was stayed.

92. [92]
    The delay in dealing with this application to this point has been almost entirely due to the incompetent nature of the pleadings contained in the application as originally filed and the requirement to re-plead the complaint. During that delay, Mr Sloan has been on paid suspension (for over 6 months), and these proceedings have caused a voluntary stay of his disciplinary process.

93. [93]
    While there is no evidence to support a conclusion that Mr Sloan’s motive for filing his application was an abuse of process designed to prolong his suspension with pay, public interest dictates that the Commission ought to exercise caution in allowing any litigant, even unconsciously, to subvert an apparently legitimate disciplinary process by filing applications to stop bullying. This is especially so when such applications are likely to be protracted, the litigant is suspended with full remuneration, and the litigant has (or has had) alternative actions available to them that adequately protect their rights without requiring prolonged litigation at taxpayer expense.  

94. [94]
    In Mr Sloan’s case he has already squandered many opportunities to have his concerns addressed independently. He contends he has lodged grievances (plural) against Mr Galeano which could have been referred to this Commission, but he did not pursue them.^[49] He has not exercised his right to notify a dispute in the Commission in respect of his safety concerns. He has not challenged a decision by WorkCover Qld to reject his application for compensation on the basis that management action was reasonable.^[50]

95. [95]
    The balanced consideration required in this matter includes contemplating the very serious effect of Mr Sloan’s lost opportunity to seek an order to stop bullying as against inter alia, consideration of the apparent merit (or lack thereof) of his complaint, the likely delay in resolving it through a full hearing of evidence and, more importantly, the cost to the public purse if this were allowed. 

96. [96]
    Given the plainly apparent jurisdictional deficiencies of the application, it would seem to be an extraordinary waste of public resources to allow Mr Sloan to seek redress for his grievances at this time, and in this way, when he has failed to do so in the past at more opportune times. This misconceived and rather belated approach by Mr Sloan is entirely against the public interest, especially when considering that it (coincidently) affords him with a lengthy period of paid suspension and an inordinate delay of what might otherwise be an entirely legitimate disciplinary process.

97. [97]
    While these features may not be regarded by Mr Sloan as benefits, they still provide him with significant advantages that he would not have had but for the making of this application.

98. [98]
    Finally, to whatever extent Mr Sloan might wish to challenge e.g., the legitimacy or fairness of his suspension, or the matters raised against him in the show cause letter, the Commission is satisfied his rights to do so will not be extinguished by the dismissal of this application. Some of those rights might now be statute barred, while others are not. To the extent rights might be statute barred, they might not be extinguished absolutely. Other rights may (or may not) emerge subsequent to future events.  

99. [99]
    It is the intention of the Commission to refrain from hearing Mr Sloan’s application. In those circumstances the respondent is at liberty to re-commence the disciplinary process. To the extent that Mr Sloan continues to challenge the basis upon which he might be liable to disciplinary action, he had (and will have) ample opportunities to make his position clearly known and will continue to enjoy all of the protections and rights provided by law. 

Order

100. [100]
     For all of the preceding reasons, I make the following order:

Pursuant to s 541(b)(ii) of the Industrial Relations Act 2016 (Qld) matter B/2023/94 is dismissed.

I certify that the preceding [100] paragraphs are a true copy of the Reasons for Decision of Industrial Commissioner Dwyer

J.C. DWYER, Industrial Commissioner:     …………………………..

           Signature

Dated: 30 May 2024