By
Gaby Grammeno
Contributor
When the chair of a regional development committee claimed she was subject to racist discrimination and bullying at work, she applied to the Fair Work Commission for a stop-bullying order. Instead, she was castigated for her conduct.
The applicant was chair of the Brisbane branch of Regional Development Australia (RDAB), part of a Commonwealth-funded, not-for-profit, community-based network of committees aiming to support economic development in regional Australia. Her position was a voluntary one.
Offensive social media posts
In October 2021 the chair made several posts on the professional networking site LinkedIn. One post commented on anti-Chinese sentiment in the Australian community and mentioned ‘nasty racist comments’ by Commonwealth employees that made her feel ‘threatened and not welcome in Australia’, from which it could be inferred that she meant colleagues at RDAB.
She didn’t name individuals, but her wording suggested a connection with Commonwealth government policy at the time, relating to Australia’s relationship with China. Her post featured a photo of Pauline Hanson and included a reference to One Nation and the social climate in the late 1990s, likening social attitudes then to current community views influenced by ‘Right extremists’ in the context of the trade war with China.
The Better Practice Guide applying to her conduct as RDAB committee chair required her to remain politically neutral in public, so inevitably her posts prompted concern. The director phoned her to discuss the likelihood that the reference to Commonwealth-funded employees making racist comments would be attributed to RDAB. He reminded her that RDAB must remain apolitical in public and invited her to reflect on her post and whether she might delete some parts of it.
Following this, a committee meeting from which she was excluded voted unanimously to oust her and wrote to the Minister asking her to remove the chair from her role because they’d made findings of misconduct. The chair responded that meeting without her was not permitted under RDAB rules, so their decision was invalid and she was the victim of a smear campaign.
The Minister wrote to the chair inviting her to comment, and the chair responded by making allegations against two committee members. She told the Minister she’d applied to the Fair Work Commission for a stop-bullying order against the two members, and asked the Minister to defer any decision about removing her until the application was resolved.
The acting assistant secretary of the relevant branch of the department wrote to all RDAB members saying the Minister would defer her decision and reminded members of the obligation in RDAB’s Better Practice Guide to stand aside from the committee if allegations of misconduct had been made against them.
All RDAB committee members then resigned except the chair, who claimed it didn’t apply to her.
The assistant secretary phoned her prompting her to consider the email and reminding her of the Better Practice Guide’s requirement for a member against whom allegations had been made to step aside.
The chair resisted, saying that if the Minister wanted to sack her, she must provide reasonable grounds, and adding that she was still upset with the assistant secretary about an earlier incident at a Senate inquiry.
The stop-bullying application was dismissed, as both people against whom the allegations were made had resigned. A stop-bullying order can only be made if there’s a risk of further workplace bullying, so the case couldn’t succeed.
The chair subsequently made a second application for a stop-bullying order, claiming that three individuals she named in her complaint – the assistant secretary, and the director and assistant director of the development program – had treated her unfairly because of her Chinese heritage.
She submitted a long list of specific accusations against each of the ‘named persons’, principally instances of freezing-out (eg emails unanswered), isolation, belittling, and humiliation, all of which can constitute bullying at work, if it is ‘repeated unreasonable behaviour’.
Among many other allegations, she claimed the director had demanded she remove her social media posts, though they were ‘private’ and he had no right and she hadn’t named names; and that the assistant secretary had demanded, without appropriate authority or ground, that she stand down as chair, usurping the Minister’s power.
In the Fair Work Commission
The department and the persons named in the application denied the allegations, describing them as scandalous.
On hearing the evidence, Fair Work Commissioner Jennifer Hunt formed the view that with two exceptions – which were partly due to an inconsistency between the RDAB rules and the Better Practice Guide – most of the allegations were unfair and without foundation.
She found a single instance of unreasonable behaviour by the director when he asked her to withdraw her registration for a briefing session with their Minister. He was acting on the advice of the committee, which had acted beyond its authority in trying to sideline her. It was correct that the committee meeting without the chair was not permitted by the RDAB rules, though the director was not aware of this at the time and was not intentionally unreasonable.
The law does not require the conduct complained of to be intentionally unreasonable. The test is whether a reasonable person, having regard to the circumstances, may consider the conduct to be unreasonable.
The other instance held to be unreasonable behaviour was the assistant secretary’s phone call reminding the chair that the Better Practice Guide required her to stand down from her role under the circumstances. The Commissioner found this 32-minute phone call unreasonable because the assistant secretary didn’t have the authority to lean on the chair to stand down, and its length made it more unreasonable, creating a WHS risk.
However, to meet the definition of ‘bullying’ under the Fair Work Act, the unreasonable or humiliating conduct must be repeated, but the director and the assistant secretary did not ‘repeatedly’ behave unreasonably towards her, therefore she was not bullied by them in terms of the legislation.
Commissioner Hunt found the other allegations formed ‘an all too familiar pattern of [the chair], alleging that she has been discriminated against on the basis of her race, but not putting any specific allegations forward’. Without providing evidence, she’d felt entitled to post ‘scandalous accusations against Commonwealth employees’.
The Commissioner found the chair’s posts ‘vile’, ‘offensive’, and ‘defamatory’, and wrote that the ‘outrageous statements’ she made on social media quite rightly caught the attention of the Department. She said her ‘failure to see how damaging her public accusations [were] against the Department and Commonwealth employees is astonishing’ and showed ‘an abhorrent lack of respect for those with whom she works’.
The Commissioner said the chair’s evidence given orally during the hearing that the director ‘linked support of One Nation to the political desire of the then Coalition government was shocking and entirely unacceptable’.
‘I consider that it was made up on the spot and reflects incredibly poorly on [the chair’s] character’ she wrote.
She found some allegations highly objectionable. Accusing the assistant secretary of ‘holding a deeply-rooted animosity against her’ on account of the chair’s Chinese heritage was an ‘extraordinarily offensive and unpalatable’ slur on the assistant secretary.
The Commissioner considered it ‘spiteful and vindictive’ for the chair to have involved the assistant director in this application because the latter was simply doing her job.
‘Suggestions that [the assistant director] was nicer to Caucasian RDAB Committee members and employees than to the chair on account of being Chinese is a reprehensible slur on [the assistant director] which I utterly reject,’ the Commissioner wrote.
While an employee may genuinely believe they are being bullied, that belief 'must be reasonable in the sense that it is able to be supported or justified on an objective basis'.
Commissioner Hunt was not satisfied the chair was bullied at work as alleged, therefore the FWC had no power to make a stop bullying order.
The application was dismissed.
What it means for employers
Staff are entitled to express views on social media, but should show appropriate restraint according to the positions they hold.
Read the decision
Application by Lulu Lisa Liang-Godber [2023] FWC 2423 (24 November 2023)
