Frost v Ambulance Victoria [2025] FWCFB 94
What happened?
The applicant, Mark Frost, was employed as an Advanced Life Support Paramedic with Ambulance Victoria (AV), based in Bright, Victoria, since 2009.
In August 2021, AV commenced an investigation following allegations of bullying made against Mr Frost. He was informed of the allegations and was suspended pending the outcome of the investigation.
On completion of the investigation, AV substantiated the allegations of bullying against Mr Frost. AV subsequently invited Mr Frost to show cause as to why disciplinary action should not be taken against him on the basis of substantiated findings of serious misconduct, including a proposed transfer to Dandenong. After reviewing Mr Frost’s response, AV imposed a disciplinary sanction, transferring his work location from Bright to Dandenong in southeast Melbourne.
Mr Frost lodged an application with the FWC, arguing that the transfer was unreasonable and unjust because his conduct, while constituting bullying, did not rise to the level of serious misconduct.
The key issue in dispute between the parties was whether Mr Frost’s conduct amounted to “serious misconduct”, and whether AV acted “unreasonably or unjustly” in taking the disciplinary decision to transfer his work location.
Decision at first instance
At first instance, Commissioner Connolly held that Mr Frost's bullying conduct had amounted to serious misconduct and the imposition of disciplinary sanction of transfer Mr Frost's work location was not unreasonable or unjust. Commissioner Connelly observed that:
- The investigation report alleged the bullying conduct of Mr Frost, and that the evidence indicated that Mr Frost had not challenged the allegations of bullying;
- Mr Frost’s conduct, characterised as bullying, was objectively serious and therefore met the threshold for serious misconduct; and
- The transfer to Dandenong was deemed reasonable and just, given the circumstances and available options.
Mr Frost appealed.
Appeal to the Full Bench
Mr Frost appealed the decision on the basis that the Commissioner had made various discretionary and legal errors, which resulted in coming to the wrong conclusion about his conduct.
Notably, Mr Frost contended that the Commissioner had made a significant error by equating bullying conduct with serious misconduct, and that the investigation report did not conclude that his conduct was serious misconduct.
The Full Bench rejected most of Mr Frost's appeal grounds, however, agreed that bullying conduct should not automatically equate to serious misconduct. The Full Bench observed that while the investigation report found Mr Frost’s conduct amounted to bullying, the Commissioner had erroneously concluded, on that basis alone, that serious misconduct had occurred.
The Full Bench stated the following:
"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."
The Full Bench held that:
- while some cases of bullying can be serious, the definition of 'bullying' under the Fair Work Act 2009 (Cth) (FW Act) does not inherently imply seriousness; bullying behaviour can vary in severity and must be assessed in context;
- while the investigation report found that Mr Frost had engaged in bullying conduct, it did not conclude that this conduct amounted to serious misconduct;
- the Commissioner's acceptance of the proposition that the investigation report had concluded Mr Frost’s conduct constituted serious misconduct was factually incorrect; and
- bullying and serious misconduct are distinct legal concepts and should not be conflated.
The Full Bench granted and upheld the appeal, noting the public interest in clarifying the distinction between bullying and serious misconduct under the FW Act. The Full Bench determined it was appropriate to remit the matter back to the Commission to rehear and decide whether Mr Frost’s conduct, as found in the investigation report, constituted serious misconduct.
Key takeaways for employers
This decision serves as an important reminder for employers that when managing disciplinary processes involving bullying allegations, it is essential to assess the severity of the conduct in context and determine whether it meets the threshold for serious misconduct as defined under the FW Act. Employers should be aware that bullying does not automatically equate to serious misconduct.
Employers should ensure that investigation findings are made with specificity as to what the allegations may amount to (i.e., serious misconduct) and that any subsequent disciplinary decisions are proportionate and procedurally fair.
We would like to thank Angelique Chauvin for her contribution to this article.
If you require further information or have any queries in relation to this article, please contact one of our experts.
