Fair Work Commission of Australia
Is a CEO being bullied? What is the difference between bringing a CEO to account and bullying?
In dismissing an application by Cockburn CEO Cain to stop him being bullied, the Fair Work Commission held (view here)
“[Bullying is not] … reasonable management action carried out in a reasonable manner … noting … the right of management to take reasonable management action in the workplace.”
Fair Work bullying and harassment guidelines view here.
State Administrative Tribunal WA (SAT)
IMPORTANT MESSAGE 1
Defences for use in Standards Panel complaints, from Court decisions (above) and successful reviews in SAT (below) include:
- Regulations not intended to be unworkable rules than inhibit political free speech, political communication by Elected Members: LANGE V AUSTRALIAN BROADCASTING CORPORATION; GREENE V GOLD COAST CITY COUNCIL; BRADLEY and LOCAL GOVERNMENT STANDARDS PANEL; TREBY and LOCAL GOVERNMENT STANDARDS PANEL
- Elected Members have an overriding duty to put public interest before private interest and express themselves appropriately: TREBY and LOCAL GOVERNMENT STANDARDS PANEL.
- Context and particular circumstances, and reasonableness in which purported breach occurred is important: MCMANUS and LOCAL GOVERNMENT STANDARDS PANEL; HODSDON and LOCAL GOVERNMENT STANDARDS PANEL
- Use of word “improper” in the Regulations takes its flavour from surrounding context: KING and LOCAL GOVERNMENT STANDARDS PANEL; HIPKINS and LOCAL GOVERNMENT STANDARDS PANEL.
- An Elected Member, in some cases, can criticise actions of others relevant to affairs of local government.: HODSDON and LOCAL GOVERNMENT STANDARDS PANEL
- Have not impugned character of an Elected Member or Councillor: KING and LOCAL GOVERNMENT STANDARDS PANEL.
- Have not used aggressive or intimidating manner when complaining: RE and LOCAL GOVERNMENT STANDARDS PANEL.
- “Detriment” must be intended but not necessarily caused: TREBY and LOCAL GOVERNMENT STANDARDS PANEL
- Action was unplanned, unanticipated and brief, which goes to lack of intention to cause “detriment”: RE and LOCAL GOVERNMENT STANDARDS PANEL (SAT).
- Other Elected Members committing same/similar/worse breach at same time but not reported: MCMANUS and LOCAL GOVERNMENT STANDARDS PANEL.
- The Standards Panel cannot re-characterise a complaint: RE -v- LOCAL GOVERNMENT STANDARDS PANEL.
- Mitigating circumstances can make difference to a penalty when breach found.
IMPORTANT MESSAGE 2
The most important language message that the SAT decisions tell us as Elected Members, is to use statements and/or questions of fact, and not use colourful opinion, adjectives or adverbs when questioning the governance arrangements of a local government or the people that operationally implement (CEO and staff) or supervise them (Council).
SAT decisions are here.
In the search box enter phrases such as “Standards Panel” or “Local Government”.
IMPORTANT MESSAGE 3
Read a decision of SAT to help you respond to a breach complaint against you, especially one that deals with the particular Regulation you are said to have breached. Respond in your written answer by addressing each of the elements of the particular regulation you are said to have breached in the complaint against you: for example for a Conduct Regulation 7(1) breach to be established:
- must be an Elected Member (EM); AND
- EM made improper use of office; AND
- EM gained directly or indirectly for the EM or another person (Reg.7(1)(a)); AND/OR
- EM caused detriment to the local government or any other person (Reg.7(1)(b)).
Introduce any evidence you have with your response with your response to the complaint, as you may not get another chance.
SHANNON and LOCAL GOVERNMENT STANDARDS PANEL  WASAT 50 here
In overturning certain Standards Panel decisions against Mayor Shannon, the SAT decided that with the authority of Council,
“…it is … reasonable for a Council by its Mayor to be able to explain [to the community] why it may or may not have taken action regarding a matter(s) in which there has been public interest [and so was NOT improper use of her office]: para 51;
“[and for the Mayor to tell the community] the Town’s reason for not recruiting the acting CEO internally from senior executives [and so was NOT an improper use of her office]”: para 54.
It is the opinion of many that the Standards Panel lacks procedural fairness and is part of the system designed to assist poorly performing CEOs avoid accountability. When EMs have resources to challenge Standards Panel decisions in the State Administrative Tribunal, the Standards Panel decisions are often overturned: see http://lgema.org/public and scroll down to SAT decisions overturning Standards Panel decisions.
MATHESON and LOCAL GOVERNMENT STANDARDS PANEL  WASAT 26 here
SAT overturns Standards Panel finding against a Councillor, again. This very helpful decision stands for the following principles:
- CEOs sometimes obtain very expensive reports at significant cost to ratepayers that contain hearsay, carry no weight and fail to address the primary concern at issue.
- A Standards Panel must give due consideration to Councillors’ concerns.
ANNOTATING/AMENDING COUNCIL MINUTES
- An annotation to Council Minutes must be:
- · put to the Council;
- · discussed by the Council; and
- · endorsed or approved by the Council.
- Legal advice giving rise to annotations to Council minutes should be provided to Councillors.
- Adding a notation to Council Minutes in an effort to rectify shortcomings identified by a Councillor, is indicative of a process that is seriously flawed.
- A Councillor can subjectively form the view that there is ‘block voting’ taking place from time to time; that a culture of fear and intimidation exists in a Council; that a Council can become increasingly secretive about its work; and that the trend of openness may be reversed towards a trend of lack of transparency.
- The failure of a CEO; Mayor and/or fellow Councillors to consider carefully a caution by a Councillor made in good faith is indicative of a culture within a Council whereby decisions were sometimes made by way of block voting without the proper consideration of the merit of an agenda item under discussion. The culture of fear that can be cultivated in a Council can be shown to the Tribunal by evidence: for example affidavits signed by Councillors without them been given adequate time to seek legal advice or to discuss the affidavit at a Council meeting.
COUNCIL DEBATE CAN INCLUDE RESPECTFUL VENTILATION OF DIFFERENCES and COUNCILLORS MAY EXPLAIN IN PUBLIC DISAGREEMENT WITH A COUNCIL DECISION
- Respecting decisions of a Council does not equate with necessarily agreeing with the merit of those decisions. Even after a vote on a matter had been taken by Council, a Councillor may explain to his or her electorate why he or she disagreed and continues to disagree with that decision, in the discharge of their duties. However, such explanations must be done in a courteous and respectful manner whilst also representing the interests of the community.
In making comments, Council debate must be of such nature that it does not distract from the dignity of the office or adversely reflect on the competence of fellow Councillors.
However, public office and public interest require robust debate, public ventilation of differences and scrutiny of policies.
- The right to freedom of political communication is not absolute. The right does not confer personal rights. Reasonable restrictions may be imposed on whatever freedom of political communication exists at the level of local government.
- A Councillor does not necessarily undermine the majority decision-making of a Council, when expressing concern at the legality of a resolution. Such an action may be reasonable, proportionate and consistent with what could be expected of a prudent Councillor after they have exhausted all other avenues. Ongoing criticism must be courteous and in acknowledgement that a majority had made the decision.
COUNCILLOR LETTER TO NEWSPAPER
- A Councillor having exhausted all options available; owes a duty to the public to make them aware that the decision to exclude them from a meeting may not have been proper in accordance with the appropriate sub-section of the LG Act. The option to publish a very succinct letter in the Post newspaper was reasonable. The Councillor acted in the best interests of the Council and in accordance with her obligation of fidelity to the local government.
COUNCILLOR CAUSING DETRIMENT
- When considering whether detriment (as in the Conduct Rules) had been intended or suffered, it is noted that detriment is not to be limited to actual loss or injury suffered. Detriment includes non-financial loss, humiliation, embarrassment, and harassment. In order for a “detriment” finding to be made, the conduct must either have been intended for a person to suffer detriment or for the person making the statement to be recklessly indifferent that detriment was probable or likely as a consequence of the conduct. A Councillor may discharge their duty towards the Council by repeatedly drawing the attention of the CEO, the Mayor, and fellow Councillors to the incorrect reliance on a subsection of the LG Act.
- The reputation of some persons may suffer, even it is the Mayor and CEO simply because they seemingly refuse to address a reasonable concern about the legality of the exclusion of the public from a meeting. They may even be embarrassed by the exposure. However, this is self-inflicted. It is not a breach of the Regulations by the Councillor who brings such an issue to the public’s attention in a reasonable manner.
NOTICE OF CONCERN TO CEO, MAYOR AND COUNCILLORS
- A Councillor can properly discharge their duties by repeatedly and respectfully making their concerns known to the CEO, the Mayor and fellow Councillors about the incorrect legal basis upon which the public is excluded from a Meeting.
NOTICE OF COUNCILLOR CONCERN TO PUBLIC
- The duty of a Councillor towards their office, fellow Councillors and the public may justify bringing to the attention of the public, a concern that the public may have been excluded from a Council Meeting without a proper legal basis. This is a reasonable concern arising from the importance of accountability and responsibility acting in good faith (i.e. honestly, for the proper purpose, and without exceeding [her] powers) in the interests of the local government and the community’, ‘in accordance with her obligation of fidelity to their local government as is required by part 4.1(a) of the Code.
- A Councillor may act properly, prudently and responsibly as a Councillor ought to do by seeking clarification of the legal basis of a decision and when that was not provided after several attempts, to draw it to the attention of the public who had been directly affected by the decision to exclude them.
CLOSING COUNCIL MEETINGS
- Council must reference proper Local Government Act subsection to close lawfully a meeting to the public. A decision to exclude the public from a meeting without the proper foundation is without merit and is without a proper legal basis. A Council majority cannot remedy the lack of a proper legal basis for a resolution to exclude the public from its deliberations.
- A CEO, Mayor and majority of a Council can be so fixated on excluding the public from a Meeting, that they close their minds to the reasonable concerns raised by a Councillor.
- A Council must exercise a discretion whether to close a meeting and in doing so must apply its mind to all relevant information, including the principal objective namely, accessibility to the public.
- Council in closing a meeting to the public, generally speaking, must precede the closure by at least three practical steps, namely:
- identification of the relevant sub-section of s 5.23(2) of the LG Act for the meeting to be closed;
- consideration by Councillors of the rationale for the proposed exclusion of the public; and
- a vote to close the meeting.
- 21 is missing from the original
- If a decision is made to close a meeting, the relevant sub-section from which the power is derived must be accurately identified.
- A Councillor can act in the interests of the Council and the public by drawing to the attention of the public that the public had been excluded from attending the discussion of an agenda item without a proper legal basis. The Council and the public may have their interests served by the criticism raised by a Councillor.
- The mere fact that a subject matter potentially falls within one of the grounds to close a meeting under the Local Government Act, does not automatically mean the public must be excluded. A proposition in the agenda/notice of meeting that the public ‘is required’ to be excluded is erroneous. The LG Act does not mandate exclusion of the public from a Council meeting but bestows a discretion only to close a meeting.
- It is a seriously flawed process that gives rise to the exclusion of the public from the discussion of an agenda item, where the refusal of the CEO, Mayor and fellow Councillors to address the merit of concerns expressed by a Councillor.
STEPHEN CAIN (AS CEO OF THE CITY OF COCKBURN) and SMITH  WASAT 18 here
Catchwords: Local government – Minor breaches of reg 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA) – Order of the Local Government Standards Panel to provide public apology – Failure to comply with the Panel’s order – Referral to the Tribunal under s 5.118(1) of the Local Government Act 1995 (WA) – Sanctions – Suspension under s 5.117(1)(a)(iv) of the Local Government Act 1995 (WA) – Costs awarded under s 87(2) and (3) of the State Administrative Tribunal Act 2004 (WA) The Tribunal orders:
- The respondent, pursuant to s 5.117(1)(a)(iv) of the Local Government Act 1995 (WA), is suspended for two months from her office of councillor (formerly Deputy Mayor) on the Council of the City of Cockburn.
- Within 14 days of the date of this order, pursuant to s 87 of the State Administrative Tribunal Act 2004 (WA), the respondent must pay to the City of Cockburn the amount of $6,000.
CHRONOLOGY TO NOTE:15 November 2018:
Cr Sands made a complaint against Cr Smith for a breach of Reg. 7 of the Local Government (Rules of Conduct) Regulations 2007 (WA).
18 June 2019: the Standards Panel published its decision and reasons for decision for finding that Cr Smith had breached reg 7 of the LG Regulations. Cr Smith did not appeal and did not comply with the Standards Panel orders.
6 September 2019: CEO Cain lodged an application with the State Administrative Tribunal under s 5.118(1) of the Local Government Act 1995 (WA) (LG Act). CEO Cain alleged that Cr Smith had failed to comply with the order made by the Local Government Standards Panel.
23 October of 2019: CEO Cain files bullying claim at Australian Fair Work Commission … “[which] centred on the alleged conduct of Councillor Smith…[but included Crs Downing; Howlett; Smith; Allen]”
8 May 2020: the FWC dismissed CEO Cain’s application, stating “…the anti-bullying jurisdiction should not be used as ‘a means of hampering, or even stopping justified disciplinary action, implemented by an employer, as a reasonable management response to an employee’s poor performance or misconduct…”
SOUTHWELL and LOCAL GOVERNMENT STANDARDS PANEL  WASAT 6 here
Catchwords: Local government – Review of decision of Local Government Standards Panel for minor breach – Facebook post made before council minutes available – Whether councillor disclosed information acquired at closed meeting – Whether information in public domain SAT found that the Standards Panel was wrong in issuing 2 sanctions for the same behaviour, and so dismissed one of the complaints.
NGUYEN and LOCAL GOVERNMENT STANDARDS PANEL  WASAT 1 here
Catchwords: Local government – Review of decision of Local Government Standards Panel – Minor breaches – Improper use of office – Intent to cause detriment – Use of official email account – Detriment suffered – Turns on own facts Standards Panel decision affirmed, penalty amended.
SOUTHWELL and LOCAL GOVERNMENT STANDARDS PANEL  WASAT 128 here
Catchwords: Local government – Review of decision of Local Government Standards Panel – Alleged minor breaches – Whether improper use of office – Whether intent to cause detriment – Sanction for minor breach of Local Government Act 1995 (WA) – Breach of reg 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA) – Turns on own facts Standards Panel decision affirmed, penalty varied.
SCOTT and LOCAL GOVERNMENT STANDARDS PANEL  WASAT 95 (View/download here)
“critical email did not enter public domain” – “intention to denigrate and cause damage, detriment “ – “not inexperienced Councillor” – “result of frustration” –“insight and remorse shown” –“penalty reduced” –“disciplinary proceedings’ includes reflecting community disapproval, maintaining appropriate standards councillor communications”
PENN and LOCAL GOVERNMENT STANDARDS PANEL  WASAT 83 (View/download here)
“Intervener under obligation to assist Tribunal” – “Intervener not acting on behalf of or defending decision of respondent” – “Intervener may form the opinion that there is not an adequate basis for disciplinary action and support application” – “Costs can be awarded against Intervener”
KEPERT and LOCAL GOVERNMENT STANDARDS PANEL  WASAT 78 (View/download here)
(Upheld breaches, varied penalties) “Facebook posts” – “Whether improper use of office” – “intent to cause detriment” – “credibility”
OSBORNE (AS CEO OF THE CITY OF BUNBURY) and STECK  WASAT 72 (View/download here)
“letter to newspaper criticising council decision” – “no remorse or insight” – “suspension”
MCMANUS and LOCAL GOVERNMENT STANDARDS PANEL  WASAT 50 (View/download here)
(Overturn Standards Panel) “Councillor conduct at a council meeting” – “context surrounding a Councillor’s conduct is important” – “context that what was said by another Councillor included the word ‘lie’, and was not complained about”
HODSDON and LOCAL GOVERNMENT STANDARDS PANEL  WASAT 49 (View/download here)
(Overturn Standards Panel) “use of word ‘improper’ cannot be considered in isolation” – “reg 7 does not prohibit council member from discussing council business, to question, and in some cases, no doubt, to criticise, the actions of others which impact on matters relevant to the affairs of a local government”
BLANCO and LOCAL GOVERNMENT STANDARDS PANEL  WASAT 42 (View/download here)
(Overturn Standards Panel) “fabrication of complaint”
SHERIDAN (as CEO of the Shire of Chittering) and GIBSON  WASAT 12
“belated apologies” – “suspension” – “mitigating circumstances”
SHIRE OF DENMARK and BARTLETT  WASAT 58 (View/download here) “Facebook post” – “Council member resigned”
KING and LOCAL GOVERNMENT STANDARDS PANEL  WASAT 42 (View/download here)
(SP upheld, penalty varied) “principles to be applied alleging a minor breach” – “improper use of office” – “intention to cause detriment” – “letter to newspaper” – “what is improper will depend on context of conduct”
SHIRE OF HALLS CREEK AND TAYLOR  WASAT 161 (View/download here)
“inappropriate disclosure of letter” –“Belated public apology” – “suspension deferred”
RE and LOCAL GOVERNMENT STANDARDS PANEL  WASAT 84 (View/download here)
(Overturn Standards Panel) “discussion between councillor and staff member” – “Improper use of office” – “intentiond to cause detriment” – “objective basis” – “detriment not suffered”
HIPKINS and LOCAL GOVERNMENT STANDARDS PANEL  WASAT 48 (View/download here)
(Overturn Standards Panel) “sending email” – “improper, definition”
PHILLIPS and LOCAL GOVERNMENT STANDARDS PANEL  WASAT 97 (View/download here) (Lack of jurisdiction for SAT to consider) “Use of secondary materials”
BRADLEY and LOCAL GOVERNMENT STANDARDS PANEL  WASAT 44 (View/download here)
(Overturn Standards Panel) “Political free speech an underpinning value in local government” – “Cr duties read in light of practical and political realities” – “Cannot artificially inflate Cr obligations when tends to have a ‘chilling effect’ on local political speech and communication” – “Councillors overriding duty to put public interest before private interest and express themselves appropriately” – “Councillors can express an opinion” – “Councillors are not to be criticised for attempting to represent their constituency and community interests to the best of their abilities. Their job should not be made even more difficult by the imposition of unworkable rules”
TREBY and LOCAL GOVERNMENT STANDARDS PANEL  WASAT 81; (2010) 73 SR (WA) 66 (View/download here)
(Affirm Standards Panel) “meaning of ‘improper’” – “meaning of ‘detriment’” – “Mayor Standards of behaviour” – “Implied freedom of political communication”
HARGREAVES AND LOCAL GOVERNMENT STANDARDS PANEL  WASAT 300 (View/download here)
(Affirm Standards Panel) “councillors do not use their position to publicly criticise employees within their local government” – “concerns about employees’ performance should be dealt with within local government organisation”