Aabid Khan v McDonald's Australia Limited

[2022] FWC 3212

[2022] FWC 3212

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Aabid Khan
v

McDonald’s Australia Limited and others

(SO2022/520)

DEPUTY PRESIDENT COLMAN MELBOURNE, 6 DECEMBER 2022

Application for orders to stop bullying – application dismissed

1. Mr Aabid Khan (applicant) has made an application for orders under s 789FC of the Fair Work Act 2009 (FW Act) against McDonald’s Australia Limited (McDonald’s) and Mr Patrick Bennett, who is an employee of NGI Holdings Pty Ltd (NGI), a franchisee of McDonald’s. Mr Khan provides food delivery services to Menulog Pty Ltd (Menulog).

1. The application was listed for conference on 6 December 2022. The matter remained unresolved following conciliation. Mr Khan asked the Commission to determine his application. The parties agreed that I should proceed to hear the application and I agreed to do so by conducting a determinative conference. At the conclusion of the proceeding, I advised the parties that I would shortly issue a brief written decision, which is as follows.

1. Mr Khan said that on 25 September 2022, he went to pick up an order from the McDonald’s in Wodonga. After waiting in the restaurant for forty minutes, he was told to use the drive-through to collect the order. Mr Khan said that when he did so, the restaurant manager called the police, for no reason. Mr Khan said that he reported the incident to Menulog, but that it took no action. He said that the incident had caused him mental stress, and that since the incident he had faced ‘constant harassment’ at the restaurant. Mr Khan stated that he later received a letter from McDonald’s that falsely accused him of abusing its staff, and banned him from its restaurants for 12 months. Mr Khan’s application asks the Commission to take ‘action’ so that the respondents cannot ‘lie and harass or bully people’.

1. In his F74 response, Mr Bennett said that on 25 September 2022, he received a telephone call from the restaurant manager of the Wodonga McDonald’s, who said that a delivery driver had been refusing to leave the drive-through for over twenty minutes, and that when staff had asked him to go to the waiting bay so as not to delay other customers, the driver had refused and begun swearing, and had been abusive to staff. Mr Bennett said that they decided to call the police. When they arrived, the police directed Mr Khan to leave the drive-through area and issued him with an infringement notice.

1. Mr Bennett said that his only direct contact with Mr Khan was on 30 October 2022, in the course of dealing with an incident involving a different driver, this time at the Birallee McDonald’s. Mr Khan was present, and seemed to be supporting his fellow driver. Mr Bennett said that at one point, Mr Khan threatened to take legal action in connection with the incident on 25 September 2022. The police were called to the restaurant. Mr Khan was directed to leave the premises due to his aggressive behaviour. Mr Bennett said that on 1 November 2022 he issued Mr Khan with a notice, banning him from entering any McDonald’s premises in Victoria.

1. McDonald’s submitted that it was not the employer or principal of Mr Khan or Mr Bennett, and insofar as the application was directed against McDonald’s, it was misconceived.

1. Menulog submitted that the application should be dismissed because the relevant conduct did not amount to bullying, Mr Khan had not established any risk to his health or safety, there was no risk that any bullying would occur in the future, and the actions of Mr Bennett and the staff at the McDonald’s restaurants had been reasonable management action in response to Mr Khan’s behaviour. Menulog submitted that it had suggested to Mr Khan that he should decline to accept customer delivery orders from McDonald’s restaurants.

1. Mr Khan denied that he had behaved aggressively during either of the two incidents. He said that a particular police officer had later apologised to him for the involvement of the police in the incidents. Mr Bennett said however that the police had assisted him to serve the banning notice on Mr Khan on 1 November 2022.

Consideration

1. The Commission may make an anti-bullying order if it is satisfied that a worker has been ‘bullied at work’, and that there is a risk that the worker will continue to be bullied at work (s 789FF(1)(b)(i)). A worker is ‘bullied at work’ if, while the worker is at work in a constitutionally-covered business, an individual or group ‘repeatedly behaves unreasonably towards the worker’ and that behaviour ‘creates a risk to health and safety’ (see s 789FD(1)).

1. I accept Mr Bennett’s statements about his involvement in the two incidents referred to above. I found them to be clear and convincing. On 25 September 2022, Mr Bennett was responding to the request of the restaurant manager for assistance. The manager had told him that Mr Khan had been abusive to staff. The police were called. They asked Mr Khan to leave. In my opinion, Mr Bennett acted reasonably. As to the incident on 30 October 2022, Mr Khan’s application does not allege that Mr Bennett acted unreasonably, nor is there anything to suggest that he did so. Further, I find that Mr Bennett’s decision to ban Mr Khan from McDonald’s premises was reasonable, and consistent with the occupational health and safety obligations of the occupier of the relevant premises, NGI. Mr Bennett did not bully Mr Khan.

1. McDonald’s has nothing to do with this matter and has no case to answer. It is not the employer or principal of Mr Bennett, or of the staff at the Wodonga restaurant. Mr Khan did not name Menulog as a respondent. He did however state in his application that Menulog has a contract with McDonald’s, pursuant to which its drivers can use McDonald’s drive-throughs. He appeared to suggest that Menulog should have intervened on his behalf in some way, either with McDonald’s or NGI. But I see no reason why Menulog should have done so. Menulog has not behaved unreasonably.

1. Mr Khan’s application spoke generally about his experience of ‘constant harassment’ at the Wodonga restaurant, but he provided no details of this. He referred generally to lying, harassment and bullying, but did not say when, where or by whom.

1. I find that Mr Khan has not been subjected to repeated unreasonable behaviour from Mr Bennett, McDonald’s or Menulog. To the extent that he contends or suggests that other persons have behaved unreasonably towards him, such as NGI, or unnamed staff at the Wodonga McDonald’s, Mr Khan has simply not established that this occurred. I conclude therefore that Mr Khan was not ‘bullied at work’ within the meaning of that expression in s 789FD(1) of the FW Act.

1. Further, Mr Khan has not established that any of the relevant conduct created a risk to his health and safety. Mr Khan stated that the incident on 25 September 2022 caused him ‘mental stress’, but he did not refer to medical evidence. The mere fact that a person might be stressed by the conduct of others does not establish that there is a risk to the person’s mental health. In the present case, there is no persuasive evidence that the relevant conduct posed any risk to Mr Khan’s health and safety. Finally, there is no reasonable prospect of Mr Khan being bullied at work in the foreseeable future because he has been banned from the only places where there could be any reasonable possibility of alleged bullying taking place, namely at McDonald’s restaurants. These are further reasons why the application should be dismissed.

Conclusion

1. Mr Khan was not bullied at work. The application is dismissed.

DEPUTY PRESIDENT

Appearances:
A. Khan for himself
P. McElroy for Menulog
N. Longhurst for McDonald’s
P. Bennett for himself and NGI

Details of the proceeding:
2022
Melbourne
6 December

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