Graduate Lawyer Fails in Fair Work Act Bullying Claim

In Re Meagher [2024] FWC 3569 (23 December 2024), a decision of Deputy President Dean of the Fair Work Commission, an application pursuant to s 789FC of the Fair Work Act 2009 (Cth) – by which the applicant Hugo Meagher sought an order to stop bullying he alleges had taken place within his workplace – was dismissed. The decision is of interest to lawyers for two reasons. First, Mr Meagher was employed as a graduate lawyer by a Federal Department. Second, it is useful as an example of how properly (as opposed to improperly) to treat employees, whether legal staff or otherwise. The learned Deputy President wrote (in part):

[1] Mr Hugo Meagher made an application pursuant to s.789FC of the Fair Work Act 2009 for an order to stop bullying that he alleges has taken place within his workplace. Mr Meagher is employed by the Commonwealth as represented by the Department of Employment and Workplace Relations (the Department) as a graduate lawyer.

[2] The application named three female employees holding supervisory roles over Mr Meagher (the Persons Named) as engaging in bullying behaviour towards him. The Persons Named are his Supervisor, Manager and Director.

[3] At the hearing of this matter, Mr Meagher represented himself and Mr Davidson of the Australian Government Solicitors appeared for the Department and the Persons Named. Mr Meagher gave evidence on his own behalf. The Persons Named, who are all lawyers, gave evidence on their own behalf and on behalf of the Department. The Persons Named were not required for cross examination by Mr Meagher.

[4] I consider it unnecessary to name the Persons Named in this decision given my findings about Mr Meagher’s allegations of bullying.

[5] For the reasons that follow, I find that Mr Meagher was not bullied at work, nor is he at any ongoing risk of bullying, and so I will dismiss his application.

Relevant legislation

[6] Section 789FC of the Act sets out when a person can make an application to the Commission for an order to stop bullying:

Application for an FWC order to stop bullying

(1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.

(2) For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force.Note: Broadly, for the purposes of the Work Health and Safety Act 2011, a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.

(3) The application must be accompanied by any fee prescribed by the regulations. 

(4) The regulations may prescribe:

(a) a fee for making an application to the FWC under this section; and

(b) a method for indexing the fee; and

(c) the circumstances in which all or part of the fee may be waived or refunded

[7] Section 789FD of the Act sets out the requirements for a person to have been bullied at work:

When is a worker bullied at work?

(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally-covered business:

(i) an individual; or

(ii) a group of individuals;repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.

(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:

(a) the person is:

(i) a constitutional corporation; or

(ii) the Commonwealth; or

(iii) a Commonwealth authority; or

(iv) a body corporate incorporated in a Territory; or

(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;then the business or undertaking is a constitutionally-covered business.

[8] Section 789FF of the Act sets out when the Commission may make an order to stop bullying:

FWC may make orders to stop bullying

(1) If:

(a) a worker has made an application under section 789FC; and

(b) the FWC is satisfied that:

(i) the worker has been bullied at work by an individual or a group of individuals; and

(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;

then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.

(2) In considering the terms of an order, the FWC must take into account:

(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body–those outcomes; and

(b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes–that procedure; and

(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes–those outcomes; and

(d) any matters that the FWC considers relevant.

Observations and preliminary findings

[9] It is unfortunately necessary to make some observations about the conduct of Mr Meagher in this matter before dealing with the application.

[10] Mr Meagher has been exceptionally difficult to deal with. Despite having completed a law degree he was unable to follow the most basic of instructions to prepare a witness statement that would form his evidence in chief in the proceedings. Instead, and despite numerous attempts to explain what a witness statement is, both verbally and in writing, including providing an example to him, Mr Meagher submitted a Statement of Claim. When subsequently directed to provide a witness statement, he refused.

[11] His Statement of Claim provides inaccurate and misleading commentary about emails between him and the Persons Named. The inaccuracies are obvious on a review of the emails themselves compared with his description of same in his Statement of Claim.

[12] For example, Mr Meagher asserted that he was told by the Director that he was not allowed to reply to emails from the First Assistant Secretary (FAS). This was in the context of an email to all staff from the FAS regarding the completion of mandatory training. In cross examination, Mr Meagher confirmed he was referring to an email from the Director which included the following:

“Just based on what you’ve said, I personally wouldn’t email [name redacted] / a FAS directly with that type of question and I suspect that was what [name redacted] was getting at. There is nothing strictly prohibiting you from doing so, but I’d ordinarily direct those type of procedural questions to a FAS’ EO or EA (to demonstrate that I understand their priorities and business, and the fact that their EO/EA are likely able to answer my question). It’s about exercising your judgement as to the most appropriate line of inquiry. [Name redacted] is lovely and responsive and I’m sure she had no objections – but you may encounter FAS’ that don’t respond well to these types of questions which may be better directed to an EO.”

[13] Having been taken to this email in cross examination, Mr Meagher continued to assert that the email said he could not email a FAS directly.

[14] The tone of Mr Meagher’s numerous emails both to my Associate and to representatives of the Department was in my view unprofessional and inappropriate.

[15] During the hearing, Mr Meagher was belligerent, rude, obstructive, refused to concede points he clearly should have, and regularly refused to answer questions directly. Even after many directions to him to answer the questions he was being asked, and after I raised with Mr Meagher that he was being highly evasive during cross examination, he continued to do so.

[16] During the hearing, in reference to one or more of the Persons Named, he:

1. Said he didn’t care whether she is dead or alive;
2. Referred to one as a moron who had no credibility;
3. Said “what kind of moron sets that task” in reference to a request by his Supervisor for a brief (1-2 page) file note about a High Court decision;
4. Said “I should have been nastier” towards one of the Persons Named; and
5. Said “I don’t give a shit about Ms [Name redacted]”

[17] He also characterised the reasonable and appropriate questions asked of him during cross examination as ‘fucking ridiculous’ and made a highly improper and baseless accusation that Counsel for the Department was trying to mislead the Commission in relation to his cross examination.

[18] Mr Meagher scheduled a medical appointment in the middle of the hearing, which he did not inform the Commission of until the day prior to the hearing.

[19] Mr Meagher was not a credible witness. To the extent there is any factual controversy as between the evidence of Mr Meagher and the evidence of the Department’s witnesses, I accept the evidence of the Department’s witnesses.

Allegations of bullying

[20] Mr Meagher began work on 5 February 2024 with the Department, having been previously employed as a Legal Officer with the Attorney General’s Department.

First allegation

[21] Mr Meagher’s first allegation of bullying was essentially that he was required to attend work at a certain time, and that in doing so the Department was in breach of the relevant enterprise agreement. He said this was because he did not have a ‘formal’ agreement with the Department as to when he would attend work, and his only obligation was to attend within the bandwidth hours. He also gave evidence of having an undiagnosed sleep disorder which he said he advised the Department of, and that he may need additional flexibility as a result.

[22] In his first few weeks of employment, he was required to participate in various training and induction type programs. He says that at certain times he was not given breaks between training sessions which meant he might have had to engage in new content for 3-4 hours.

…

[27] The response to Mr Meagher is set out below in full as it forms the basis of the first allegation of bullying:

“Hi Hugo, of course and I appreciate you coming prepared.

I agree that every workplace is different, so I want to ensure our (and the department’s) expectations are clear from the beginning so we can support you to succeed. I think the below expectations would be consistent across APS roles.

The feedback we will be discussing is that you have been late to quite a few meetings, and appear to be having difficulty arriving at work or managing your calendar and commitments to ensure that you are present for your first meeting. I was hoping to discuss the best ways to keep up to date on emails and calendar appointments, and manage your schedule.

I also want to discuss use of your time when at work. I have personally observed you online shopping or conducting research (for example into real estate) during meetings, and others have provided this feedback.

I am also aware that you have been using your work email and work time to correspond regarding personal disputes. This feedback has come from four different staff.

The department expects that devices and work time are primarily used for work purposes, but will allow reasonable personal use of these devices in accordance with the ICT policy. I am happy for staff to use the internet and work time for personal research and correspondence here and there, and you will find that everyone does. However, I expect the team to focus when in meetings and not use work-time for personal reasons when they have work tasks outstanding. Given you haven’t provided any work products yet, I just want to make sure you understand that we expect you to prioritise work related tasks while at work.

Mostly, I am concerned about your fatigue during training and the work day, particularly from a wellbeing perspective. I saw you drifting off during out ISC meeting this week, and have been informed that this occurred during another training session where [name redacted] needed to rouse you. I have approved an outside work application, and now a study leave application, so I just want to ensure there’s nothing else I should be aware of that is impacting your ability to perform at work.”

[28] Mr Meagher alleges that this email was an instance of bullying because the overall tone was accusatory and out of context and there was insufficient evidence or detail provided, and that the Department was at serious risk of breaching s.13(8) of the Public Service Act 1999 (Cth).

[29] He also alleged that the Department victimised him because “they personally had observed non-work conversation and activity take place by some of the ‘four’ employees that amounted to comparable or more time in non-work activities than was alleged by the Defendant to the Plaintiff. The feedback was biased and unfair and this deliberately targeted feedback fostered subsequent mistrust”.

[30] Finally, Mr Meagher alleged that the tone and context of the email was “menacing and out of context”. He said, “from the tone of the email, it appears to menace, threaten or embarrass as the Plaintiff had not given consent and was not told that the Plaintiff was under video surveillance for the purpose of performance management”. The reference to video surveillance turned out to be a reference to Microsoft Teams meetings. He also asserted that participation in a Microsoft Teams meeting was illegal video surveillance.

[31] This is clearly not a matter of bullying. There is nothing in the email in question that could be considered menacing, threatening or in any way inappropriate. It was sent because Mr Meagher had requested an indication of the issues to be discussed. It was in my view a reasonable and appropriate response.

[32] Obviously, there is nothing unreasonable in expecting Mr Meagher to attend scheduled meetings or training sessions on time, in circumstances where there are other people involved in the training program or meetings. Nor is there anything unreasonable in setting clear expectations about how he uses his time while at work or expressing concern about him falling asleep during meetings.

Second allegation

[33] The second allegation of bullying involved Mr Meagher corresponding with the First Assistant Secretary of the Department by email on 8 March 2024, in which he replied to a circular email which stated that “mandatory training requirements are now due in HUB and there will be a prize for the branch who are first to reach an 80% completion rate”. Mr Meagher emailed her to seek clarification as to whether only overdue or all mandatory training had to be completed before this time. The First Assistant Secretary replied that “you only need to complete overdue training” which he said was important to him to know from a work prioritisation perspective

…

[47] The evidence in relation to this allegation cannot objectively be construed as bullying. There is nothing in any email to Mr Meagher that could reasonably be interpreted as the Department alleging Mr Meagher had breached any provision in the Public Service Act or Code of Conduct. The content of the meeting that took place does not disclose any conduct that could properly be considered bullying.

[48] Further, there is no evidence to support Mr Meagher’s assertion that he was told he was not allowed to speak with HR or senior management to make complaints or seek clarification on Department policies.

Third allegation

[49] Mr Meagher says he commenced a period of personal leave on or around 18 March 2024 “due to insufficient support or direction from HR or [the Director] regarding his workplace relationship with [his Supervisor] since her formal complaint.” He said he expressed severe discomfort about being in the same physical space as her, noting the nature of the allegations.

…

[61] Mr Meagher alleges he was advised by the Manager that a performance management conversation had been arranged with the Director on 24 April to discuss failing him at his Practical Legal Training (PLT).

[62] Mr Meagher says that after he made his complaint against his Supervisor, Manager and Director to HR by email of 18 April, his Manager was subsequently removed as his PLT supervisor.

[63] Mr Meagher also alleges he should not have been threatened with failing his PLT and it was the insufficient guidance from the Department that made it extremely difficult for Mr Meagher to complete his tasks in an efficient manner.

[64] The evidence of the Department was that at no stage was Mr Meagher threatened with failure of his PLT. Rather, it raised a concern that he was not on track to meet his PLT requirements within the timeframe that had been identified. I consider this to be an entirely appropriate matter to raise with Mr Meagher well before any PLT deadline was reached.

[65] In terms of Mr Meagher’s complaint as to a lack of guidance, I am satisfied that the guidance provided to him was more than adequate. This included instructions prior to the commencement of a task and feedback during and after the task was completed.

[66] Again, I am not satisfied that the matters complained of by Mr Meagher constituted bullying.

Overall consideration of allegations

[67] Having considered the allegations, individually and collectively, and in light of the findings already made, I am satisfied that Mr Meagher has not been bullied at work within the meaning of s.789FD. All action taken in relation to Mr Meagher was reasonable management action and was undertaken reasonably.

[68] Every matter raised by Mr Meagher were examples of reasonable management action undertaken in a reasonable manner. It is entirely appropriate for a manager or supervisor to give early notice of performance or conduct related concerns to an employee, as was the case here.

[69] There is nothing in the emails from the Persons Named to Mr Meagher which could objectively be considered as anything other than appropriate, respectful and reasonable. There was simply no bullying behaviour at all.

[70] The facts, objectively viewed, do not support the claims Mr Meagher has made.

[71] In making this finding, I have taken account of all of the material filed by the parties.

[72] In making this finding, I have also had regard to the decision of Commissioner Hampton in Re SB [2014] FWC 2104 and in particular the following paragraphs:

“[49] Determining whether management action is reasonable requires an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time. Without limiting that assessment, the considerations might include:

• the circumstances that led to and created the need for the management action to be taken;
• the circumstances while the management action was being taken; and
• the consequences that flowed from the management action.

…

[51] The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’. In general terms this is likely to mean that:

• management actions do not need to be perfect or ideal to be considered reasonable;
• a course of action may still be ‘reasonable action’ even if particular steps are not;
• to be considered reasonable, the action must also be lawful and not be ‘irrational, absurd or ridiculous’;
• any ‘unreasonableness’ must arise from the actual management action in question, rather than the applicant’s perception of it; and
• consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances.

[52] For the circumstances in s.789FD(2) of the FW Act to apply, the management action must also be carried out in a ‘reasonable manner’. Consistent with the approach above, what is ‘reasonable’ is a question of fact and the test is an objective one.

[53] Whether the management action was taken in a reasonable manner may depend on the action, the facts and circumstances giving rise to the requirement for action, the way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters.” (Citations omitted)

[73] In summary, the matters raised with Mr Meagher, involving his lateness to work and to scheduled meetings, falling asleep in meetings, and delays in producing work, were all matters that ought to have been raised with him. It is incumbent on any employer to set clear expectations of work performance, and this is what the Department appropriately and professionally did. Clearly, Mr Meagher’s conduct in the workplace was unacceptable and ought to have been dealt with.

Ongoing risk of bullying

[74] While I have found that no bullying has occurred, for completeness I find that there is no risk of ongoing bullying as Mr Meagher moved to a different team prior to the hearing of this application, and there is no prospect of any of the Persons Named supervising him in the future.

Costs

[75] The Department foreshadowed an application for costs in relation to this application on the basis that this application had no reasonable prospects of success. Costs will be considered in the normal way if or when such application is made.

Conclusion

[76] Mr Meagher has not been bullied at work. Accordingly, I dismiss the application.

(emphasis added)

A link to the full decision is here.