Achini Iroma Jayarathna
[2022] FWC 3008
•25 NOVEMBER 2022
| [2022] FWC 3008 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Achini Iroma Jayarathna
(SO2022/266)
| DEPUTY PRESIDENT BELL | MELBOURNE, 25 NOVEMBER 2022 |
Application for an FWC order to stop bullying – jurisdiction – s.789FF(1)(b)(i) – whether risk Applicant will continue to be bullied at work by persons named – no risk - application dismissed.
On 7 June 2022 Mrs Achini Jayarathna (Applicant) lodged an application (the Application) with the Fair Work Commission (Commission) pursuant to s.789FC of the Fair Work Act 2009 (the Act) for an Order to Stop Bullying. The Application named Telstra Corporation Ltd (Telstra, the Employer) and then manager (Manager) and a co-worker (Co-Worker) (together, the Persons Named).
The Applicant says she was bullied at work and the Persons Named deny that they have engaged in the alleged behaviour. In its Form F73 Response, the Employer also raised the objection that the alleged bullying was reasonable management action, carried out in a reasonable manner. Telstra also contends that the matter ought to be dismissed under s.587 of the Act because it has no reasonable prospects of success.
This decision addresses a threshold matter – whether I could be satisfied that there is a risk the Applicant will continue to be bullied - that would be essential to establish before any order under s.789FF(1) could be made. I explain this further below.
On the material before me, there are circumstances that Telstra contends in its ‘Form F73’ response that have reduced or eliminated the risk of bullying. These circumstances include that the Applicant has not been in the workplace since late 2021, that she has not worked with, or reported to, the Persons Named since August 2021, and there has been a change in reporting lines.
The matter was the subject of a conference before me on 28 July 2022 to explore any opportunities for the parties to reach an agreed resolution to the matters raised in the Application. The matter did not resolve.
Following the conference, I drew the parties’ attention to a threshold jurisdiction issue in regard to s.789FF(1)(b)(i) of the Act, which provides that the Commission may only make an order to stop bullying where the Commission finds that there is a risk that the worker will continue to be bullied at work. Directions were set down for the filing of evidence and submissions.
The Applicant filed a short statement for herself, and also relied upon material previously filed as part of her application. Telstra, on behalf of itself and the Persons Named, filed a witness statement of Ms Anne Galinas, the Head of Credit Risk & Portfolio Treatment, Global Business Services. The witnesses gave some brief further oral evidence. Neither were required for cross-examination, although I asked some questions of each.
Applicable principles
Part 6-4B of the Act is titled “Workers bullied or sexually harassed at work”. There is no dispute that Telstra is a “constitutionally-covered business” nor that the Applicant is a “worker” to whom the provisions of the Part are capable of applying.
Section 789FC provides that if a worker reasonably believes he or she has been bullied at work that person may apply to the Commission “for an order under section 789FF”.
Section 789FD(1) states when a person is “bullied at work”. Relevantly:
“(1) A worker is bullied at work if:
(a) while the worker is at work in a constitutionally-covered business:
(i) an individual; or
(ii) a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
(b) that behaviour creates a risk to health and safety.
(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.”
Section 789FF relevantly provides (emphasis added):
“(1) If:
(a) a worker has made an application under section 789FC; and
(b) either or both of the following apply:
(i) the FWC is satisfied that the worker has been bullied at work by an individual or a group of individuals, and the FWC is satisfied that there is a risk that the worker will continue to be bullied at work by the individual or group;
(ii) …;
then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to:”
In Dr Pushpa Ravi v Baker IDI Heart and Diabetes Institute Holdings Limited T/A Baker IDI Heart and Diabetes Institute[2014] FWC 7507, Gostencnik DP considered the circumstances where the employee had been dismissed. Relevantly, he stated at [13]:
“… Furthermore, I am not persuaded that the mere possibility asserted by Dr Ravi that she might return to work at Baker IDI in the future provides a basis for me not to exercise my discretion dismiss Dr Ravi’s application. The prospect of conducting proceedings simply for the purpose of establishing whether bullying occurred without current prospects of an order being made is not in my opinion proper nor in the interests of justice and would be contrary to sound case management principles.”
While the Deputy President’s observations were made in the context of an employee who had been dismissed, I consider them applicable more generally to employees who might be absent for other reasons or where the person named for alleged bullying conduct is no longer at work.[1]
Where there is continuing employment or a realistic prospect of a return to employment, measures to eliminate or significantly reduce any risk of bullying are matters relevant to whether the conditions for an order under s.789FF(1)(b) might be satisfied. For example, in Alemtsehay (Ahem) Mekuria [2018] FWC 6486 at [42], Commissioner Lee concluded that on the facts before him, the permanent relocation of the applicant with different break times to ensure no contact between the parties concerned satisfied him that there was no risk of continuing bullying, even on the assumption of past bullying having occurred.[2]
In the matter of Andrew Hamer [2018] FWC 6037, Williams C concluded that the onus lay on an applicant to provide evidence or submissions that would satisfy the Commission that there was a “risk” that the worker will “continue to be bullied at work by the individual or group”. While I agree the onus lies with the Applicant, as s.789FF(1)(b)(i) requires the Commission to be “satisfied” of those matters, in the case before me I do not consider the question of onus is determinative.
Commissioner Williams also stated, and it is clearly correct, that an Applicant’s concerns or fears about future bullying is not determinative. Indeed, without more, I would not consider it relevant at all. Commissioner Williams also stated that the correct assessment is undertaken objectively to which, I would add, necessarily follows that it be assessed objectively from the evidence at hand.
The second limb of s.789FF(1)(b)(i) requires satisfaction that there “is” a risk a worker will continue to be bullied. That is a criterion that must “apply” before an order is made. Necessarily, satisfaction of that criterion must exist at the time an order is to be made. In cases where there is no ongoing employment relationship – such as, for example, because the employment has been terminated or, in the case before me, the employee has been away on extended medical leave – establishing a present risk presents a significant challenge. That challenge is likely to be fatal in many instances.
While the notion of “risk” has a forward-looking component to it[3], if there is no existing employment relationship on foot then there is unlikely to be risk of bullying “at work”. If the risk is said to exist from the prospects of a relationship at work resuming, the if the return-to-work is largely speculative that suggests there is no future risk of continued bullying at work. That is not to say that if a relationship at work resumed with the named individuals in the future, the risk assessment may change and it may be the case that a fresh application for an order under s.789FF could be appropriate at that time.[4]
In Re Anne Pilbrow (Pilbrow), the Full Bench considered an appeal by a worker who made a bullying application. The facts of that matter can be stated briefly. In October 2018, the employer raised some performance issues. At the end of that month, the employee went off work because of illness and had not (at least at the time of the appeal in August 2019) returned. She lodged her bullying application in November 2018. The Full Bench concluded at [16]:
“[16] Therefore, in order for Ms Pilbrow ultimately to succeed in her application, it would be necessary for her in regards to the second jurisdictional prerequisite to demonstrate that there is a future risk that she will continue to be bullied at work by Ms Edmondson, the person named as having engaged in the alleged bullying in Ms Pilbrow’s application. There is no reasonable prospect of this occurring because:
(1) Ms Pilbrow went off work on 31 October 2018, and has not since returned to work. There cannot be a risk of her being “bullied at work” if she is not at work.
(2) If at some future time Ms Pilbrow does return to work, on the evidence before the Commission, Queensland X-Ray will apply the measures identified in paragraph [5] above to ensure that Ms Pilbrow cannot be bullied by Ms Edmondson. There was no contention in the appeal that these measures were advanced other than in good faith or that they would not be effective to protect Ms Pilbrow from any risk of future bullying by Ms Edmondson.
[17] Noting that both limbs of s 789FF(1) must be met for the Commission then to consider the exercise of the discretion to make an order to stop bullying, if the second limb is not and will not be met, Ms Pilbrow’s application is doomed to failure for this reason alone.”
Factual findings
The Applicant commenced employment with Telstra in January 2016 as a Business Specialist in a full-time role.
The Business Specialist role is currently within the Credit Risk & Portfolio Treatment team. That team sits within a larger group of about 360 employees.
Since April 2021, the Credit Risk & Portfolio Treatment team has been headed by Ms Galinas. The team comprises around 26 people. Ms Galinas has seven direct reports. One of those reports is the Manager the subject of the bullying complaint, who in turn leads a team of approximately 11 members (which originally included the Applicant and the Co-Worker).
In August 2021, the Applicant made a complaint of bullying to a Telstra Human Resources Manager, naming the Manager and Co-Worker as persons responsible for bullying.
As the hearing before me was directed at the question of the risk of continuing bullying, it is not necessary to make findings on those matters (and I also note they are denied). A sufficient indication as to the nature of the alleged bullying is provided in the Applicant’s ‘Form F72’ application to the Commission. It states:
“The behaviours that have been directed at me by my colleagues include
· Unwarranted and Rude Comments
· Disregarding my mental wellbeing
· Refusing to help to develop my work path career
· Refusing/postponing to cross skill
· setting tasks that are unreasonably below or beyond a person’s skill level
· denying access to information
· Postponing any requests of mine when I ask for help and many more, ignoring my
· communication
· aggressive and intimidating conduct
· unjustified criticism or complaints
· withholding information that is vital for effective work performance”
The Form F72 also described the following:
“For the last 3 years my manager given me lower rating of 2 and for the last 3 years no performance management or development plan has given. Always discouraging and verbal threaten me about my job. If I am underperforming, they should have given me a development plan for the last 3 years. I have asked several times for training opportunities, but they have ignored my requests and they wanted me to performed those task when they on leave. How much mental pressure I was handling, without knowing he process I need to support the other stakeholders. When I performed the task I was not trained, they saying I done it wrong, but they never teach me the process and corrected me. Co-worker always passing me the critical assessments and she’s choosing the easy assessments.”
At the time the complaints were made, Ms Galinas changed the Applicant’s line of reported, so that the Applicant no longer reported to the Manager.
The Applicant commenced sick leave from 10 August 2021. She returned to work for a period totalling 6 weeks from 31 August 2021 to 18 November 2021. During that period, she performed alternative duties (i.e. away from the Persons Named).
During this period, Ms Galinas undertook an investigation of the Applicant’s complaints. Noting that the outcomes of that investigation are disputed by the Applicant, a summary of the investigation outcomes was that the bullying complaints were not substantiated. However, the complaint that the Manager had not adequately followed a performance management process in relation to the Applicant were substantiated. Ms Galinas counselled the Manager about the latter item.
Since 18 November 2021, the Applicant has not been at work. Approximately once a month, Ms Galinas has a video conference with the Applicant to maintain contact.
The evidence before me disclosed a consecutive series of medical certificates up to October 2022 (which are not challenged) stating that the Applicant has a major depressive disorder and no current medical capacity for work.
The most recent certificate of capacity, dated 19 October 2022, provides for “Comments on other issues impacting recovery or return to work”. The certificate of capacity states “She is still very distressed about the alleged work place bullying. The psychological toll on her mental well being has impacted her return to work. …”
The Applicant gave oral evidence of her desire to return to work. So much might be accepted – indeed, lauded – however I accept that the medical certificates described present the best current evidence regarding the prospects of any return to work. I am not satisfied there is any meaningful prospect of a return to work in the short to medium term.
Ms Galinas’ evidence included options regarding the Applicant’s return to work. Aspects of that evidence was a little speculative. I do not level this as a criticism, as she quite properly made clear that the exact circumstances of any return to work would necessarily be informed by the medical recommendations at the time (if such recommendations are eventually made).
Notwithstanding those qualifications, Ms Galinas gave evidence of a scenario where the medical evidence would not permit the Applicant working with either the Manager or Co-Worker. In that scenario, which I consider the most likely of any return-to-work scenarios, the Applicant would not work with, or report to, or be supervised by either of the Manager or Co-Worker. The Applicant would also be able to choose her work location at head office or to work from home. I accept Ms Galinas’ evidence that arrangements of that nature could be implemented. While I consider I am treading into the realm of speculation myself as to if or how the Applicant might return to work, the issue is ultimately moot given that the Applicant is presently not at work and there is presently no meaningful prospect of her return in the short to medium term.
Consideration
I consider that the matter before me falls squarely within the scenario described by the Full Bench in Pilbrow. As in that matter, the Applicant before me is not at work. Other than a 6 week period of modified duties up to November 2021, she has not been at work since mid-August 2021. “There cannot be a risk of her being “bullied at work” if she is not at work.”[5]
I am not satisfied that both limbs of s.789FF(1)(b) are met. In these circumstances, I am satisfied that the application has no reasonable prospects of success, because any order under s.789(1) must be based on satisfaction of both limbs of s.789(1)(b)(i). I am satisfied in those circumstances that I should exercise my discretion to dismiss the application under s.587(1)(c) of the Act.
Even if I were satisfied there was an imminent prospect of a return-to-work (which I am not), I consider that the measures identified by Ms Galinas for a return-to-work scenario would be sufficiently effective to removing any risk that the Applicant will continue to be bullied by the Persons Named (which they deny), having regard to the nature of the bullying allegations arose from supervision and shared work projects.[6] I would also dismiss the application on this basis.
Orders
For the reasons given, Mrs Jayarathna’s application is dismissed and an order[7] to that effect will be issued separately.
DEPUTY PRESIDENT
Appearances:
A Jayarathna on her own behalf
H Small from the Respondent
Hearing details:
2022.
Melbourne:
November 16.
[1] See, too, Obatoki v Mallee Track Health & Community Services and ors[2015] FWCFB 1661 at [16].
[2] See, too, Darren Lacey and Chris Kandelaars v Murrays Australia Pty Ltd[2017] FWC 3136 at [53] – [64], albeit that was in the context of whether Roe C would exercise his discretion to make a stop bullying order, not to the threshold matter of power to make that order.
[3] Cf., Re McInnes[2014] FWCFB 1440 at [9].
[4] Cf.,
[5] Pilbrow, [16](1)
[6] Cf, Pilbrow, [16](2); Alemtsehay (Ahem) Mekuria [2018] FWC 6486, [33] – [42]
[7] PR747880
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