Power imbalances and bullying

The decision in Hajazi v Calvary Health Care ACT Limited addresses a number of interesting issues in relation to allegations of bullying.

Mr Hijazi held a senior role as the Director of Medical Imaging at Calvary.

Part of Mr Hajazi’s role involved carrying out medical imaging procedures on patients.

On 3 March 2019, Mr Hajazi nearly carried out the wrong procedure on a patient.

An incident report was lodged that blamed both Mr Hajazi and a junior staff member from another team, Mr Bull, for failing to properly identify the patient.

After the report was lodged, Mr Hajazi admitted he repeatedly spoke to Mr Bull about patient identification – sometimes in a heated tone.

Mr Bull spoke to his supervisor about Mr Hajazi’s behaviour. The supervisor filed a further incident report about Mr Hajazi’s conduct.

Mr Hajazi admitted that he spoke to Mr Bull about the second incident report and that he also “withdrew from” or “limited interactions with” with junior staff.

Mr Grime, an external investigator, was appointed to investigate Mr Hajazi’s conduct.

He found that Mr Hajazi had engaged in misconduct.

Calvary dismissed Mr Hijazi on 10 February 2020.

Mr Hajazi then made an unfair dismissal claim in the Fair Work Commission.

On 6 January 2021, the Commission dismissed Mr Hijazi’s application. Several aspects of the decision are noteworthy.

Performance discussions and bullying

Mr Hijazi agreed that he “did question Mr Bull more than once as to whether he had brought the correct patient to the radiography department, because he felt Mr Bull had been involved in a number of incidents of bringing incorrectly identified patients to the radiography department”. Mr Hijazi said it was reasonable for him to do this “given the errors made by Mr Bull in the past”.

However, Mr Hijazi admitted that he was not Mr Bull’s supervisor and he did not raise these issues with Mr Bull’s supervisor.
 
Those two factors were relevant to Deputy Commissioner Dean’s decision that, "repeatedly raising the issue with Mr Bull remained plainly unwarranted”.
 
If Mr Hijazi had raised his concerns about Mr Bull’s performance with Mr Bull’s supervisor (whether or not he also raised them with Mr Bull directly) then the position may have been different.
 
Power imbalances and bullying
 
It was not disputed that,
 
“There was a significant power differential between Mr Hijazi as the director of the Department and Mr Bull, an unqualified wardsman who took instructions from qualified staff.”
 
This power imbalance was significant in Deputy Commissioner’s Dean’s assessment of Mr Hijazi’s conduct in speaking with Mr Bull about the second incident report then being withdrawn and limiting interactions with Mr Bull and other junior staff. Deputy Commissioner Dean found that Mr Hijazi “was not free” to behave in this way and “a reasonable person would consider [his behaviour] to be humiliating and intimidating”.
 
The case is a useful example of the higher expectations on those in more senior roles and the recognition by the Commission that behaviour between peers that falls short of bullying might nevertheless amount to bullying if it involves conduct by more senior team member towards a more junior team member.

An interesting comparison is the decision in Gary Matthews v San Remo Fisherman's Co Operative. In that case, the Commission decided that a subordinate did not engage in misconduct by swearing at a manager during a conversation. Commissioner Gregory noted,
 
“The conversation can also be seen as a robust discussion between two mature and experienced individuals, who had known each other for some time, and previously had a good relationship."
 
Reliance on the investigator’s report

In this case, Calvary’s case relied on showing that Mr Hijazi’s conduct towards Mr Bull was unreasonable. However, Calvary did not call Mr Bull to give evidence of Mr Hijazi’s conduct. Instead, it relied on admissions made by Mr Hijazi and the findings made by Mr Grime.

Mr Hajazi argued the Commission should exclude Mr Grime’s evidence, or give it little weight, as it was hearsay.

Deputy President Dean decided,

“The Grime Investigation is in my view relevant to the Commission’s determination of the issues which need to be decided. I am satisfied in this regard that the Grime Investigation constituted a full and extensive investigation, that Mr Hijazi was given a reasonable opportunity to respond, and that the findings were based upon reasonable grounds. It is, however, appropriate to place less weight on the Grime Investigation than might otherwise be the case because it is hearsay, which I have done. This is particularly so given Mr Hijazi was unable to test the evidence by way of cross examining those who complained about his conduct.”

Make haste slowly
 
The investigation of the allegations against Mr Hijazi took considerable time.
 
One reason for this was that there was an error early in the process that resulted in Calvary giving conflicting letters to Mr Hijazi.
 
Sensibly, Calvary chose to restart the process and restart the time Mr Hijazi had to respond to the allegations against him.
 
This approach was ultimately relevant to both the Commission’s preparedness to place to reliance on the Grime report and the finding that Mr Hijazi had been afforded procedural fairness. It is another case example that shows the importance of proceeding methodically and without any rush to judgment.