Workplace bullying leads to fair work orders

“Here is a relatively rare decision of the Fair Work Commission involving the publication of a Commissioner’s reasoning for finding that workplace bullying has occoccurred and that ortder shoiud be issue to stoop it.on the issue of workplace bullying.

“[1] On 16 December 2021, Ms Mackenzie Ripinskis applied to the Fair Work Commission for an order to stop bullying at work under s.789FC of the Fair Work Act 2009 (Act). The application relates to Ms Ripinskis’ employment as an Aftermarket Sales Consultant by Peter Warren Automotive Pty Ltd (Peter Warren Group).

[2] Ms Ripinskis believes she has been bullied at work by staff members of the Peter Warren Group and in particular her manager, Ms Joanne Raisa, Head of Auto Protect – NSW. The alleged bullying is said to have occurred since her return to work from a period of absence on worker’s compensation, related to earlier bullying she experienced at the businesses’ Narellan site.

[3] Ms Ripinskis alleges that she has been bullied at work by:

  1. Being treated differently to other staff, including in connection with work restrictions that affect her performance,
  2. Her work property and files being tampered with,
  3. Exclusion from aftermarket department activities such as events and meetings, and
  4. Unreasonable criticism from Ms Raisa, even when she is doing a good job.

[4] Connected to the allegations of bullying at work is a dispute about changes to Ms Ripinskis’ roster and place of work. Ms Ripinskis submits that proposed changes to her roster and place of work are intended to disadvantage and inconvenience her and that the changes were proposed because she complained about how she was being treated by Ms Raisa to human resources.

[5] The questions are whether Ms Ripinskis has been bullied at work, and if so, what should be done about it. I have decided that Ms Ripinskis has been bullied at work and also that her own conduct at times meets this description. For this reason, it is appropriate to make orders in the matter in relation to the Peter Warren Group, Ms Raisa, and Ms Ripinskis.

Bullying at work under the Act

[6] A worker is “bullied at work” if a person or group repeatedly behaves unreasonably towards the worker (or a group of workers of which they are a member) while they are at work in a constitutionally-covered business, and the behaviour creates a risk to health and safety. 1 Bullying at work does not include reasonable management action carried out in a reasonable manner. It is not in dispute that Peter Warren Group is a constitutionally-covered business and that Part 6-4B of the Act (which deals with bullying at work) applies in relation to the business.

[7] If a worker has been bullied at work and there is a risk that the bullying behaviour will continue, orders can be made to stop the bullying and to prevent it from happening again. The scope of the discretion to make orders of this kind is broad although orders cannot be made for the payment of money.

Has Ms Ripinskis been bullied at work?

Different treatment to other staff, including work restrictions that affect her performance

Unfair allocation of work

[8] Ms Ripinskis submits that she has not been allowed to perform normal duties or increase her duties, despite there being no restrictions on her return to work. She also submits that her roster was recently adjusted after she complained to human resources and that her complaint was largely ignored except for an initial meeting: no changes were made, and the alleged unfair treatment was not resolved.

[9] Peter Warren Group submits that there were restrictions on Ms Ripinskis’ return to work on 9 June 2021. On its view, Ms Ripinskis returned to work initially for 2 days per week in the Ford Macarthur branch. On 16 November 2021, her days of work increased to 3 days per week and prestige brands were added to her roster. Ms Ripinskis does not deny the graduated nature of her return to work. I accept the submission.

[10] Ms Ripinskis submits that when she returned to work, she was not allowed to see prestige customers across the Campbelltown business. Instead, she was told that she was not to work in Jaguar/Landrover as this work was reserved for another aftermarket sales consultant, Ms Tiana Velimirovic. Ms Velimirovic works in a hybrid finance/aftermarket role and is the partner of a person said to have been involved in the earlier bullying of Ms Ripinskis. Ms Velimirovic is allowed to work across multiple brands in a day, while Ms Ripinskis is limited to one brand each day (either Ford or Mercedes Benz). Further, when Ms Ripinskis is on leave or a rostered day off, Ms Velimirovic is able to work on what would otherwise be her sales opportunities. When Ms Velimirovic is on leave, however, her sales opportunities (those for Jaguar/Landrover) are held back until she returns. Overall, Ms Ripinskis says that she is given fewer sales opportunities than other aftermarket consultants (both in terms of number and value), reducing her income earning potential.

[11] Peter Warren Group explains that reserving Jaguar/Landrover sales opportunities for Ms Velimirovic alone occurred when a hybrid role was created for her in January 2022. This followed her expressing interest in learning the finance role. According to Peter Warren Group, the decision was made to give Ms Velimirovic adequate sales opportunities while performing the hybrid role.

[12] I accept the submission. Even so, the data shows that during the first half of 2022, Ms Ripinskis was given fewer sales opportunities than other aftermarket sales consultants, in both number and value. In this regard, the value of franchises for aftermarket sales is not “about the same”. According to KPI figures provided, there is a marked difference between earnings potential associated with prestige compared to non-prestige vehicles. As the opportunities for Ms Ripinskis have been limited in relation to prestige sales, her ability to earn has been lower than consultants who have been given greater access to prestige opportunities and attempts to overcome differential treatment have been met with denial. Ms Raisa is responsible for the allocation of aftermarket sales opportunities within the NSW division of the Peter Warren Group.

[13] Further, at the time of hearing, Peter Warren Group was in a process of restructuring the aftermarket sales department to give effect to a change in its relationship with Mercedes Benz. While no decision had been made, the restructure is likely to see Ms Velimirovic retain and potentially improve her current role, and simultaneously reduce Ms Ripinskis to the role of “group floater” (requiring attendance at all sites to cover absences) or “phone sales only” from Monday to Friday. Each proposed role is of lesser standing than the role Ms Ripinskis currently occupies. The group floater role is also problematic to the extent that it would likely require Ms Ripinskis to work at the Narellan site, where persons involved in previous bullying behaviour still work.

[14] Of course, the structure of the business is a matter for Peter Warren Group. However, the data establishes that since her return to work from worker’s compensation, Ms Ripinskis has effectively been marginalised in her role because of decisions made by Ms Raisa about allocation of work in the aftermarket sales team. Together, these decisions amount to an unreasonable pattern of behaviour towards Ms Ripinskis while at work. I am satisfied that the behaviour creates a risk to the health and safety of Ms Ripinskis, particularly in light of her previous experience of bullying at work. The behaviour is bullying at work.

Manipulation of earnings

[15] Ms Ripinskis submits that Ms Raisa has manipulated her commission (and ability to earn commission) to her detriment, in a way that is inconsistent with commission arrangements approved by the Peter Warren Group. The following incidents are relied upon by Ms Ripinskis:

  1. On 5 April 2022, income from a new car order placed before 6 December 2021 was removed from her sales figures because Ms Ripinskis was receiving worker’s compensation at a rate that included commission. However, the figures were not adjusted to remove the corresponding ‘opportunity’ in the month the vehicle was delivered. According to Ms Raisa, this gave Ms Ripinskis the opportunity to increase her ‘PVR’ (calculated on total opportunities and total profit) so that she could lift her commission percentage tier. I find that this was reasonable management action carried out in a reasonable manner.
  2. On 26 April 2022, Ms Raisa adjusted rebates for January – March 2022. Sales made by Ms Ripinskis were disproportionately transferred to other staff to her detriment, and two of her rebates were omitted. As a result, while all other staff earned a bonus, Ms Ripinskis was said to owe Peter Warren Group $20. When challenged, Ms Raisa told Ms Ripinskis that the money ‘had to be found somewhere’ for one of the staff members who benefited from the adjustments. A further challenge to the adjustments succeeded but only in relation to the rebate omissions. Ms Ripinskis was paid a $100 bonus. According to Ms Raisa, the transfer of sales from Ms Ripinskis to other sales staff was necessary to correct errors following an audit of 5 months’ worth of statements. The rebate omissions occurred because Ms Raisa wrongly assumed they had already been paid to Ms Ripinskis in December. I find that correcting errors in the attribution of sales among the team was reasonable management action. The error in relation to rebate omissions was not reasonable management action. However, it was a simple mistake, based on a wrong assumption, and one that was corrected after Ms Ripinskis questioned the error. I am not satisfied that it was bullying at work.
  3. On 5 May 2022, an aftersale from the previous month was ‘pushed’ into May 2022 for the purposes of calculating Ms Ripinskis’ earnings, after Ms Raisa allegedly failed to organise journaling or payment from used cars for April, meaning that an invoice was unable to be generated on time to count toward that month’s commission. However, I accept the evidence of Ms Raisa that journaling and invoice creation are not dependent on each other. Ms Ripinskis could have generated the invoice at the time of sale. I find that this was reasonable management action carried out in a reasonable manner in the circumstances.
  4. Ms Ripinskis submits that she is given the paperwork of other staff members, asked to perform duties that are not in her job description and ignored when she sends emails or requests for help. Despite being on worker’s compensation, Ms Ripinskis was made responsible for 30 deals done before 6 December 2021 for a dealership she now covers remotely, even though she took on that responsibility in January 2022. This meant she was required to perform a significant amount of work to which commission did not apply. According to Ms Raisa, Ms Ripinskis’ role was expanded to increase her sales opportunities as discussed and agreed with her at the time. The expanded role included follow up of existing forward orders and the 30 deals were considered fresh opportunities. I accept that this work was of less value for Ms Ripinskis compared to other work she was able to perform. While I find that it was reasonable management action, in the sense that the work had to be done, and it fell within an area of work for which Ms Ripinskis was responsibile, the decision to allocate this work to Ms Ripinskis was part of the pattern of behaviour that I have found to be bullying at work.
  5. Ms Raisa does not work in coordination with the accounts department to ensure that commissions are calculated correctly and paid properly, leaving Ms Ripinskis with reduced income for the month. This includes not sending through commission logs or reports until the month has been closed, so that changes cannot be sought before pays are processed. Previously, Ms Ripinskis says these logs were sent to sales staff ahead of time so they could be checked before pays were processed. Ms Raisa says that she works hard to complete commission logs and adjustments, but she now only has one day to undertake this work compared to the three days previously available. Alterations are usually required and are resolved in the following month. There is no time to circulate the records for comment by sales staff before they are submitted. Staff are responsible for entering their own records correctly at the time of sale, even though they often make errors. I find that Ms Raisa’s approach to the calculation of commissions is reasonable management action carried out in a reasonable manner. It may be that there is a better way to do it, but that does not mean that the way it is done is unreasonable or targeted toward Ms Ripinskis. It is not bullying at work.

Tampering with work property and files

[16] Ms Ripinskis says that on the day she returned to work after her absence on worker’s compensation, there was no-one from management there to meet her. There was no desk, work equipment or other place for Ms Ripinskis to work. Her previous desk had been moved and she was told she was not allowed to sit there. Her personal and work items were gone. Ms Ripinskis obtained help from another department within the business and set up her computer.

[17] When Ms Ripinskis checked her emails, she discovered that Ms Raisa had been given access to her work emails and documents. According to Ms Ripinskis, Ms Raisa had gone through all of her work and personal information, rearranged the structure of her email and deleted emails and documents, including files and correspondence with the human resources department about her earlier complaint.

[18] Not long after her return to work, Ms Ripinskis discovered that a forwarding rule had been applied to her email so that all of her emails (sent and received) were copied to Ms Raisa. Peter Warren Group says that this was agreed as part of a return-to-work plan with Ms Ripinskis because she had only returned on a part-time basis. I do not accept the submission. If there had been such an agreement between Ms Ripinskis and Peter Warren Group, the forwarding of emails would not have come as a surprise to Ms Ripinskis when she became aware of it upon being challenged about an email by Ms Raisa.

[19] I accept the evidence of Ms Ripinskis in relation to the failure of Peter Warren Group to support Ms Ripinskis’ first day at work after a long absence on worker’s compensation. Paying no heed to these matters – even somewhere for her to sit – was unreasonable. A similar approach was taken during periods when Ms Ripinskis was stood down due to COVID19-related lockdowns for approximately three months. Her inquiries about returning to work were ignored until 5.50am on the day of her return. This was also not reasonable management action.

[20] As to the forwarding of emails and review of files, this was partly reasonable management action and partly not. It was both necessary and appropriate for the workplace to know what work Ms Ripinskis was doing before she took leave, and to be made aware of correspondence she received during her absence that might need to be actioned. It was not reasonable to delete her emails and other files, particularly those related to her complaint. It was unreasonable to continue forwarding Ms Ripinskis’ emails without alerting her to this level of surveillance upon her return to work. If the business needed information about Ms Ripinskis’ work on days she was not rostered on as a part-time employee, it could have easily made arrangements with Ms Ripinskis without the need for secrecy.

[21] To the extent that these matters involved unreasonable action or omission in relation to Ms Ripinskis, I find that they were also bullying at work. As Ms Raisa was Ms Ripinskis’ manager at the time, the behaviour must be attributed to her.

Unreasonable criticism, even when she is doing a good job.

[22] Ms Ripinskis says that Ms Raisa criticises her daily, even though she has worked hard to be a respected and valued employee. Ms Ripinskis points to the events of 17 May 2022, when Ms Raisa sent her nine notifications about incomplete work on ‘Airtable’, an online platform used by the company that staff members can all see. She rang and then texted Ms Ripinskis when the call went unanswered (because Ms Ripinskis had been instructed not to work overtime and the call was made after work hours). On 18 May 2022, Ms Ripinskis arrived at work and looked at the 9 allocated tasks. She realised that 5 were meaningless as they had already been completed. The remaining 4 tasks were dependent on a process change that had not yet been implemented and were thus beyond her control.

[23] When the events of 17 and 18 May 2022 are considered together, I do not find that Ms Raisa’s actions were unreasonable. Ms Raisa gave instructions to Ms Ripinskis and gave similar instructions to other aftermarket sales consultants. Ms Raisa was seeking to implement a change in business process about which Ms Ripinskis was not aware. As Ms Ripinskis’ manager, she was entitled to direct the performance of tasks. Her request was reasonable management action, carried out in a reasonable manner. The response she received from Ms Ripinskis on the other hand, was unreasonable. Ms Ripinskis effectively told Ms Raisa she didn’t know what she was talking about and accused Ms Raisa of providing her “with a meaningless task” and “wasting my time”. She did so without all of the relevant facts, which Ms Raisa subsequently and calmly explained.

[24] This allegation is not established. The evidence does not demonstrate daily criticism of Ms Ripinskis by Ms Raisa. The actions of Ms Raisa on 17 and 18 May 2022 in relation to the allocation of tasks were not bullying at work.

Exclusion from work events, meetings and other aftermarket department activities

[25] Ms Ripinskis submits that she was excluded from a meeting of staff at the Macarthur office about prestige brands across the Peter Warren Group, while all other staff were present. When she asked to be involved in the meeting, she was told ‘No’. Peter Warren Group explained that this occurred at a time when Ms Ripinskis was not working in prestige brands, as her return-to-work plan provided for her to work initially in the Ford Macarthur branch for two days per week. I accept that Ms Ripinskis was excluded from the staff meeting because at that time, Peter Warren Group held the view that it was not relevant to her role. This was reasonable management action and there is no evidence that it was carried out in an unreasonable manner. It was not bullying at work.

[26] Ms Ripinskis submits that she is not given information about changes to company processes, leading to her being reprimanded or unaware of changes that affect her work. Specifically, Ms Ripinskis relies on a text message exchange with Ms Raisa between 30 April 2022 and 4 May 2022. Ms Ripinskis wrote to Ms Raisa to state that she had not had a lunch break of more than 15 minutes all week, and that she had been early and left late on multiple occasions. On 4 May 2022, Ms Raisa replied by email, reminding her to comply with break and overtime policies. She directed Ms Ripinskis to take her meal breaks at assigned times and advised that all overtime must be approved by the direct manager in advance if more than 1 hour was required.

[27] On 5 May 2022, Ms Ripinskis responded with a long email questioning the contents of Ms Raisa’s email and the inconsistency between her written directions and how the business operated in practice, including its expectation that she work overtime and minimise her breaks as needed. Ms Raisa did not respond to the email. On 17 May 2022, Ms Raisa approached Ms Ripinskis to ask if there was anything she needed. Ms Ripinskis replied to the effect that she wanted a reply to her email of 5 May 2022 and that she preferred this in writing rather than face to face or phone conversations because of concerns about the effectiveness of their communication. Ms Raisa said she would reply to the email, but then did not.

[28] Ms Raisa explains that Ms Ripinskis has asked for all communications to be in writing, which limits her ability to communicate with Ms Ripinskis over the phone as she does with other staff. As a result, Ms Ripinskis sometimes does not get information at the same time as other staff. Ms Raisa also submits that Ms Ripinskis is condescending in her tone in emails to Ms Raisa and that she does not engage with team activities, team meetings or group chats where efforts are made to include her. I accept this evidence.

[29] In the circumstances, I find that Ms Raisa’s actions on 4 and 5 May 2022 were reasonable management actions, carried out in a reasonable manner. In her communication with Ms Ripinskis on 4 May 2022, Ms Raisa was taking ordinary managerial steps, including identifying a health and safety issue and directing Ms Ripinskis to take adequate breaks and obtain approval for overtime. I accept that Ms Ripinskis had previously been given competing and inconsistent directions by management, such that she understood that she was expected to work overtime and minimise breaks to achieve sales. However, Ms Raisa is Ms Ripinskis’ direct manager. It was appropriate for Ms Raisa to act in the way that she did. In response, Ms Ripinskis asked reasonable questions, but in an unreasonable way, including by demanding that Ms Raisa do as she had asked.

[30] These allegations are not established.

Other relevant matters

[31] Ms Ripinskis submits that the reason she has been treated adversely compared to other employees is that she complained to the human resources department about Ms Raisa on 25 October 2021. I do not accept this. Ms Ripinskis does not respect Ms Raisa and this is evident from their interactions. It has led Ms Ripinskis to at times adopting an adversarial, rather than collaborative, approach and Ms Raisa has responded by limiting her interactions with Ms Ripinskis. At the same time, Ms Raisa is managing Ms Velimirovic in a way that supports her career progression. The combination of these factors has favoured consultants other than Ms Ripinskis and likely underpins the perception of unfairness held by Ms Ripinskis.

[32] Ms Ripinskis has asked for clarification of her duties by way of an amended contract of employment. The original contract of employment has been lost and neither Peter Warren Group nor Ms Ripinskis can locate it. This has led to difficult discussions about the terms of an updated contract. Peter Warren Group have sent four different contracts to Ms Ripinskis, none of which have been acceptable to her. While Ms Raisa has tried to engage with the issue, Ms Ripinskis has been uncooperative (and not always well informed) in her responses. I am not satisfied that the failure to provide a copy of the original contract to Ms Ripinskis was part of the pattern of bullying at work.

[33] The earlier incident of bullying at work was the subject of a complaint by Ms Ripinskis in October 2020. Following substantiation of the complaint, company-wide initiatives were taken by Peter Warren Group including to implement an Employee Assistance Program and a Workplace Behaviour Policy, conduct employee workshops on the new policy, enrol all managers in a Group HR Essentials course, conduct a review of the investigation into the complaint, and take disciplinary action against individuals involved in the conduct of concern.

[34] Peter Warren Group now has a bullying, harassment, and discrimination prevention policy (Bullying Policy). The Bullying Policy includes a reporting procedure and encourages workers to report “all WHS issues” in the workplace. All concerns and complaints “will be dealt with … very seriously”. Bullying, harassment, and discrimination are not tolerated “under any circumstances” and a breach of the Bullying policy may result in disciplinary action.

[35] There is also an Internal Concerns and Complaints Resolution Handling Policy (Complaints Policy). Under the Complaints Policy, there is a three-step resolution procedure from self-help to manager facilitation to a formal written complaint. Formal complaints that are not resolved to the satisfaction of the complainant can be referred to the human resources department, and then if necessary to an external agency.

[36] Some of the matters to which this decision relates were the subject of an investigation by Peter Warren Group in 2021. These were the alleged exclusion from prestige brand sales-related activities, unfair allocation of duties, a refusal to grant annual leave over the 2021 Christmas period and a direction not to wear a pink blazer. The allegations were not substantiated, and Ms Raisa’s actions were deemed reasonable management action. The outcomes letter of 13 December 2021 is limited in its detail in relation to the investigation and findings.

[37] I have dealt above with exclusion from prestige brand sales and the alleged unfair allocation of duties. For the reasons given, I do not agree with the investigation outcome that there was no unfairness in the allocation of work to Ms Ripinskis after 9 June 2021. In relation to the refusal of annual leave, Peter Warren Group submits that leave is allocated on a ‘first in, first approved’ basis and when Ms Ripinskis applied for leave, there were not enough staff left to cover the holiday roster. There is not enough evidence to either accept or reject this allegation.

[38] As to the pink blazer, Peter Warren Group relies on its uniform policy, which it says required Ms Ripinskis to meet specific Mercedes-Benz uniform requirements at the time. However, Ms Ripinskis was not then in the Mercedes-Benz team. The reprimand in relation to the pink blazer was not justified by company policy for this reason, and others who wore the same blazer (although perhaps in a different colour) did so without incident. I find that the reprimand was unreasonable in the circumstances. It was however a lawful direction consistent with the uniform policy, which requires sales staff to wear “appropriate corporate attire” and defines “appropriate attire” as that which “reflects the expectations of the area as determined by the Manager”. Ms Raisa is the relevant manager in relation to Ms Ripinskis and is entitled to set the expectations of the area in this regard.

[39] I have remarked in this decision that the tone adopted by Ms Ripinskis in communications with Ms Raisa has at times been disrespectful. On one view, this would also constitute bullying at work, because it is a repeated pattern of behaviour toward Ms Raisa that creates a risk to her health and safety. I accept that Ms Ripinskis does not always receive responses to her emails, which causes her distress. After the experience of bullying at the Narellan site and what appears to have been limited support on her return, it is unsurprising that Ms Ripinskis lacks trust in some of her managers and colleagues. Her relationship with Ms Velimirovic is particularly strained and yet must persist as the two effectively competing for work, a significant portion of which is remunerated on performance and in circumstances where Ms Velimirovic is being treated more favourably than Ms Ripinskis.

[40] These are difficult issues, but they cannot be ignored because of the risk to health and safety for everyone in the NSW aftermarket sales team, including Ms Ripinskis and Ms Raisa. Much of the solution lies in addressing communication failures, including ensuring that adequate information is firstly obtained before decisions are made, and then shared to prevent information gaps being filled with assumptions. The human resources department has a role to play in supporting a more fulsome re-integration of Ms Ripinskis to the workplace and promoting effective communication between Ms Ripinskis and her colleagues. This includes finding a better solution than that all communication be ‘in writing’ – which is neither sustainable nor conducive to a safe and productive working environment.

[41] I find that Ms Ripinskis has been bullied at work.

Orders

[42] It is appropriate to make orders in this case to prevent the further marginalisation of Ms Ripinskis at work and to address dysfunctional relationships in the aftermarket sales team. The orders I propose will require different things from each of Peter Warren Group, Ms Raisa and Ms Ripinskis.

[43] Orders will issue separately to this decision.”

Ripinskis (2022) FWC 2051 delivered 1 September 2022 per McKinnon C