I have previously reported on the case of Mark Frost – see Paramedic transferred 350km as a disciplinary measure (September 15, 2024).  Mr Frost appealed to the full bench of the Fair Work Commission that upheld the appeal in part and referred the matter back to Commissioner Connolly to redecide it in accordance with the Appeal Panel’s rulings on the law. 

Mr Frost was accused of bullying; the allegations were upheld in part.  Ambulance Victoria proposed transferring Mr Frost to a station 350km away from where he was then living and working.  It was agreed that pursuant to the Ambulance Victoria Enterprise Agreement 2020 the transfer could only occur in ‘instances of serious misconduct that meets the definition of workplace bullying and or harassment’.  Commissioner Connelly determined that bullying was serious misconduct.  The appeal panel held that this was wrong.

In Frost v Ambulance Victoria [2025] FWC 3437 Commissioner Connelly explained the Full Bench’s decision. They said (at [4])

…the Commissioner considered the bullying conduct to be serious misconduct.  This was a finding 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’.  

…it is clear that bullying and serious misconduct are two entirely distinct concepts for the purposes of the Agreement, …

The Commissioner set out what he was required to do (at [8]):

What is clear from [the findings of the Appeal Panel] … is that that the question I am required to engage with is whether the conduct Mr Lacy found Mr Frost to have engaged in constitutes serious misconduct within the meaning of Agreement. If I am not satisfied this is the case, it is not open for AV to transfer Mr Frost from his workplace in Bright under the terms of clause 74.6(f)(iv) of the Agreement.

Serious misconduct is defined in the Agreement and in the Fair Work Regulations as:

  • Wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contact of employment;
  • Conduct that causes serious and imminent risk to:
    • The health or safety of a person; or
    • The reputation, viability or profitability of the employers business.
  • Serious misconduct includes, but is not limited to, the employee, in the course of the employee’s employment, engaging in:
    • Theft; or
    • Fraud; or
    • Assault; or
    • Breach of AV’s Alcohol and Other Drug Policy and/or Procedure; or
    • A refusal to carry out a lawful and reasonable direction that is consistent with the employees’ contract of employment.

On this rehearing Mr Frost argued that the Commission had to determine (at [34]):

… whether this conduct was either (or both) wilful or deliberate behaviour that was inconsistent with the continuation of his contract of employment; or conduct that caused serious and imminent risk to the health and safety of a person, or the reputation, viability or profitability of the employer’s business. 

He argued that the Commission should not find those elements established and therefore the transfer was inconsistent with the Enterprise Agreement.  The Commission said (at [54]):

Mr Frost submits Mr Lacy [the investigator] made no finding his bullying conduct was wilful or deliberate.  But rather, that his conduct can be explained by his social ineptitude and mental health issues, stress and lack of ongoing professional development.

The Commission rejected that. They said the initial allegations against Mr Frost were framed as allegations that he acted ‘wilful and deliberately’ ([sic]; [55]) and it was these allegations that were substantiated. Commissioner Connelly was satisfied (at [58]) that the ‘the bullying conduct Mr Lacy concluded Mr Frost engaged in was ‘wilful’ and/or ‘deliberate’.’

Mr Frost argued that his conduct was not ‘inconsistent with the continuation of the contact of employment’ as evidenced by the fact that AV did not propose that the appropriate response was to terminate his employment ([60]).  The Commission reviewed the allegations regarding Mr Frost’s engagement with a subordinate paramedic and found (at [70]) ‘Mr Frost’s conduct amounted to bullying and unreasonable behaviour, creating a risk to health and safety’ and (at [74]) ‘he acted contrary to his obligations under his contract of employment’.  Even though AV had not suggested terminating his employment, the Commission was satisfied ([75]) that his action ‘was inconsistent with a continuation of his employment’. Presumably if the proposed disciplinary action had been Mr Frost’s termination, the Commission would have upheld that.

The Commission concluded (at [98]) ‘… I am satisfied Mr Frost engaged in serious misconduct related to bullying conduct as defined under the Agreement.  On this basis, I am satisfied AV could seek to transfer Mr Frost as an alternative to dismissal.’

Conclusion

In my previous post I said:

In the discussion we are given only limited detail of the allegations (see [25]) and of Mr Frost’s personal circumstances.   What we can take from the case is:

  • Substantiated allegations of bullying and harassment are always likely to fall into the category of serious misconduct…

Details of the allegations are set out in the current judgement but for the sake of brevity I have not reproduced them here.  People can go to the judgement if they want to read the details.  What the decision of the appeal panel in Frost v Ambulance Victoria [2025] FWCFB 94 means is that it is not the case that ‘allegations of bullying and harassment’ necessarily constitute serious misconduct.  That is something that has to be determined in each case.  Having been directed accordingly, Commissioner Connolly reviewed the evidence and the submissions of the parties before coming to the conclusion that the bullying and harassment in this case was ‘serious misconduct’ and therefore AV did have the power to transfer Mr Frost to another station.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.