“Consideration
[20] The standard by which an appeal under s 604 must be assessed depends on the nature of the decision that is the subject of the appeal. In this case, the decision of the Commissioner determined a dispute that had been referred to the Commission under s 739 of the Act and the dispute resolution procedure in the Agreement. The first question that the Commissioner was required to determine was whether Mr Frost’s behaviour amounted to serious misconduct related to conduct that met the relevant definitions of bullying or harassment. The correctness standard applies here, because the question must have a single answer that is legally correct. The second question, whether AV acted unreasonably or unjustly, is evaluative in nature, however the Agreement authorises the Commission to ‘determine whether the Employer has acted unreasonably or unjustly’, which in our view contemplates a unique outcome (see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [49]). Mr Frost’s appeal proceeded on the basis that the decision was affected by errors of law and discretionary errors of the kind in House v The King (1936) 55 CLR 499, the consequence of which would be that the answers to the questions were wrong.
[21] We will consider the question of whether to grant permission to appeal concurrently with our consideration of the appeal grounds, to which we now turn.
[22] The first ground of appeal must be upheld. In our opinion, the Commissioner made an error of law by equating bullying conduct with serious misconduct. We reject AV’s contention that this appeal ground is the product of an unfair or selective reading of the Commissioner’s decision. At [123], the Commissioner stated very clearly that ‘to suggest that bullying, objectively viewed, does not amount to serious misconduct is implausible in my view’. This was not a mere infelicity of expression, nor does it run counter to the relevant context or to other components of the Commissioner’s reasoning. In the preceding paragraphs, the Commissioner stated that, in order for Mr Frost’s case to succeed, he would need to make a finding that Mr Frost’s behaviour, as found by Mr Lacy, did not constitute serious misconduct (at [118]). The Commissioner then stated that he did not make this finding (at [119]). Although no finding is explicitly stated, it is clear enough from the double negative that the Commissioner considered the bullying conduct to be serious misconduct. This was a finding that the Commissioner was required to make. But the Commissioner’s approach to making this finding was in error because he equated bullying with serious misconduct.
[23] At [120], the Commissioner stated that he did not accept the ‘distinctions’ drawn by Mr Frost to the effect that Mr Lacy did not find the behaviour posed serious imminent risks or was inconsistent with the continuation of the employment relationship. While this might suggest an engagement by the Commissioner with the question of whether the bullying conduct in this case amounted to serious misconduct, rather than an approach of equating any bullying conduct with serious misconduct, the Commissioner went on to state that he did ‘not consider it necessary for AV to make these distinctions’, because ‘what was relevant’ in this matter was that AV had received an independent report that included a substantiated finding that Mr Frost had engaged in bullying (at 121]). Evidently for the Commissioner, this was sufficient to conclude that serious misconduct had occurred. At [122], the Commissioner went on to state that ‘on this basis alone’, he was satisfied that AV was ‘entitled to consider Mr Frost had engaged in serious misconduct’. Already at this point, the error is clear. It is then encapsulated at [123] by the Commissioner’s rejection of the rhetorical suggestion that bullying might not amount to serious misconduct, and is reinforced at [124] where the Commissioner states that the suggestion that bullying is not serious misconduct would be inconsistent with ‘contemporary provisions of the Act and explicit provisions therein that distinguish bullying from other forms of workplace conduct the Parliament has identified in line with contemporary community standards.’
[24] It is clear to us that the Commissioner proceeded on the basis that a finding of bullying must mean that the relevant conduct amounts to serious misconduct. This is an error of law. The meaning of these terms in this case is determined by the Agreement. Clause 74.6(f)(iv) states that transfer is a disciplinary option for AV ‘in the case of serious misconduct related to conduct that meets the definition of workplace bullying or harassment pursuant to the Act and Equal Opportunity Act 2010 (Vic)’. The ‘Act’ means the FW Act, s 789FC of which states that a worker is ‘bullied at work’ if, while the worker is at work in a constitutionally covered business, an individual or group ‘repeatedly behaves unreasonably towards the worker … and that behaviour creates a risk to health and safety’. ‘Serious misconduct’ is not directly defined, however clause 74.1 of the Agreement states that ‘misconduct includes serious misconduct’, and that ‘misconduct’ has the same meaning as provided for in AV’s Misconduct Policy, which in turn defines serious misconduct in terms similar to those in the Fair Work Regulations. In our view, this is the meaning of serious misconduct for the purposes of the Agreement. But even if the meaning of serious misconduct were instead to be the one set out in the Regulations, or the meaning given to serious misconduct at common law, it is clear that bullying and serious misconduct are two entirely distinct concepts for the purposes of the Agreement, as indeed they are generally, even if their application to fact in some cases might overlap.
[25] That Mr Frost had engaged in bullying was not in contest because he did not dispute Mr Lacy’s finding that this had occurred. But Mr Frost did dispute that his conduct amounted to serious misconduct. We do not accept the suggestion of AV that the Commissioner concluded at [120] that the conduct posed a serious risk and was inconsistent with the continuation of the employment relationship; as we have said, on our reading, the Commissioner regarded such ‘distinctions’ as irrelevant. But to the extent that the Commissioner made an assessment of the seriousness of the conduct, his conclusion that the conduct was serious misconduct was infected by his erroneous belief that bullying amounts to serious misconduct.
[26] For conduct to amount to bullying under the FW Act, it is sufficient that a person has behaved unreasonably at work on two occasions towards another, and that this has caused a risk to health and safety. That such conduct has occurred does not of itself say anything about the seriousness of that conduct. Plainly, the gravity of conduct that can fall within the definition of bullying in the FW Act can be charted on a wide spectrum. Some such conduct is very serious. Some is not. For example, there will be cases where a person has behaved unreasonably, but marginally so, and the risk to safety is one that is peculiar to the personal circumstances of the complainant and could not have been known to the first person. Such a case would come nowhere near amounting to misconduct, let alone serious misconduct, nor would there be any fair basis to condemn the person for marginal unreasonableness, or to label the person a ‘bully’, with all moral opprobrium that is associated with that word in contemporary society. Simply put, cases of bullying may range across a spectrum of seriousness. The FW Act implicitly recognises this possibility because the Commission retains a discretion as to whether to make
any order in respect of bullying that it has found to occur, even if it apprehends a risk of further bullying in the future.
[27] In our opinion, the second ground of appeal must also be upheld. The Commissioner proceeded on the basis that Mr Lacy had concluded that Mr Frost’s behaviour amounted to serious misconduct. This is incorrect. AV contended that this appeal ground involved cherry picking or decontextualising certain statements in the decision. We accept that at [2] of the decision, where the Commissioner stated that AV’s decision to transfer Mr Frost was based on ‘substantiated findings of serious misconduct’, one might infer that the Commissioner had in mind AV’s own satisfaction that the findings of Mr Lacy amounted to serious misconduct. But at [54], the Commissioner stated that what was critical was Mr Lacy’s report, and that the findings of the report were that the conduct was serious misconduct as defined. This was not Mr Lacy’s finding. Rather, Mr Lacy found that Mr Frost’s behaviour had constituted bullying. AV submitted that the import of Mr Lacy’s report was that Mr Frost had engaged in misconduct. But even if this is accepted, it is not a finding of serious misconduct.
[28] Given our view that the correctness standard applies to the questions posed for determination, it is relevant to consider whether despite the errors that we have identified, the Commissioner reached the correct answers. But to determine this question, we would have to decide for ourselves whether the conduct of Mr Frost constituted serious misconduct. We do not propose to do so in circumstances where no proper assessment was made of this question at first instance. Based on our conclusions of error above, the appropriate and efficient course is to grant permission to appeal, quash the decision, and remit the application to the Commissioner for redetermination. The Commissioner will need to determine whether the conduct that Mr Lacy found to have occurred constitutes serious misconduct. We note that the Commissioner will have the benefit of having heard the evidence of the five witnesses who were called in the proceeding at first instance.
[29] To facilitate the Commissioner’s redetermination of the application, it is necessary for us to address the remaining appeal grounds. We will do so briefly. We reject them.
[30] We find no substance in appeal ground 3. As to ground 4, we agree with AV that, despite what was said at [125], the Commissioner clearly accepted the need for him to consider whether AV had acted unreasonably or unjustly by considering the location of the transfer, and the impact of the decision on Mr Frost. As to the appeal grounds pertaining to procedural fairness, we find that AV afforded Mr Frost procedural fairness as required by clause 75. The content of procedural fairness will vary from case to case. In our view, AV did enough in this case to meet what was required of it by the Agreement. Mr Frost was not provided with all of the information pertaining to the investigation or its outcome, but that does not alter our conclusion. For one thing, all of the relevant materials were ultimately provided to him for the purposes of the Commission proceedings. We record our view that Mr Frost was afforded procedural fairness in respect of his interactions with Mr Lacy. Further, Mr Frost was provided with an opportunity to show cause as to why the proposed disciplinary outcome should not be implemented. It seems to us that this had the effect of providing Mr Frost with procedural fairness both in respect of the process and the proposed outcome, consistent with the broad interpretation of clause 75 advanced by Mr Frost in the appeal. We agree with AV that to the extent that it might have fallen short of providing adequate procedural fairness, this was cured in the proceeding before the Commissioner, in which Mr Frost had the opportunity to address any matters that mighthave advanced his case, including by reference to all of the relevant documents. We do not consider that the Commissioner failed to take into account relevant considerations or that he took into account irrelevant considerations.
Orders
[31] We order as follows:
1. Permission to appeal is granted.
2. The appeal is allowed.
3. The decision in Frost v Ambulance Victoria [2024] FWC 2237 is quashed.
4. The application is remitted to Commissioner Connolly for redetermination in accordance with our decision.”
Appeal by Frost v Ambulance Victoria [2025] FWCFB 94 delivered 12 May 2025 per Asbury VP, Colman DP and O’Neill DP