Application for an FWC order to stop bullying; whether Applicant bullied at work; whether conduct unreasonable or reasonable management action; whether conduct created risk to health and safety. Conduct of Applicant and impact on workplace. Recommendation issued.

Mr Ahmed Osman has made an application pursuant to Part 6 – 4B of the Fair Work Act 2009 (FW Act) alleging bullying at work by numerous of his co-workers at an Australian Postal Corporation (Australia Post) facility known as the Melbourne Gateway Facility (MGF) at Tullamarine.

The allegations Mr Osman makes were originally against eight co-workers, however two of those have left MGF and so, even if it were possible to make findings they had been engaged in bullying (which I do not) it would not be possible to make orders in respect of those people or their conduct. He advanced 41 allegations in all.

This decision, at least in respect of Allegations 16, 17 and 34 must be read in conjunction with a separate document, Confidential Reasons for Decision, which is the subject of a confidentiality order of the Commission pursuant to s.594(1)(d) of the FW Act.

For the reasons I detail below and in the Confidential Reasons for Decision I have not found any of the allegations are substantiated as “bullying at work” for the purposes of the FW Act.

BACKGROUND

Mr Osman has worked as a Mail Officer at Australia Post since 2015. The facility in which he works is physically very large with around 250 people employed there.[1] The facility works around-the-clock using heavy sorting loading and other equipment to do its tasks. It is described as having an area of several football fields.

Mr Osman claims bullying at work from people both higher than him in the Australia Post hierarchy as well as those working at the same level. He claims bullying conduct started in 2016 and has continued since; potentially escalating in recent time. The Persons Named in the initiating application were:

Timothy Singleton
David Harrison
Sylvio Bignoux
Brett Watkins
Marissa Bozzo
Alexander Banting
Luke Harrison
Neil Loring.

Two of the Persons Named left Australia Post’s employment before the application was formally heard (Luke Harrison and Neil Loring). A further person, Katrina Eishold was added to the list of people involved after I became satisfied there was a prima facie case to be answered on her part. The seven people who are now the subject of this decision and their positions within Australia Post are:

Timothy Singleton, MPC2 at Tullamarine Parcel Facility (previously Acting Process Leader at MGF)
David Harrison, Area Manager at MGF
Sylvio Bignoux, Manager Verification Notes at MGF
Brett Watkins, Processing Manager North at MGF
Marissa Bozzo, Mail Officer at MGF
Alexander Banting, Mail Officer at MGF
Katrina Eishold, Operations Manager Network Operations at MGF.

Mr Osman has made 41 allegations against these people.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ahmed Osman

Details

AGLC: Ahmed Osman [2023] FWC 2830
Case: [2023] FWC 2830
Decision Date: 9 NOVEMBER 2023

CaseChat Overview and Summary

In the matter of Ahmed Osman, the applicant sought an order from the Fair Work Commission (FWC) to cease workplace bullying. The dispute centred around allegations that the applicant was subjected to bullying by a colleague, which he claimed had a detrimental impact on his health and safety. The court was tasked with determining whether the conduct amounted to bullying, whether it was reasonable management action, and if it created a risk to health and safety. The respondent argued that the conduct was part of reasonable management action and did not constitute bullying. The applicant, on the other hand, submitted that the behaviour was unreasonable and created a hostile work environment, leading to significant stress and health issues.

The court examined the nature of the interactions between the applicant and the colleague, considering whether the conduct was repeated and unreasonable, and if it created a risk to health and safety. It was noted that the applicant had a history of conflict with the colleague, which had escalated over time. The court also took into account the impact of the conduct on the applicant's mental health, including evidence of anxiety and depression. The respondent's argument that the conduct was reasonable management action was rejected as the court found that the actions went beyond what was necessary or appropriate in the circumstances.

The FWC concluded that the conduct did amount to bullying as it was repeated, unreasonable, and created a risk to the applicant's health and safety. The court found that the respondent's actions were not reasonable management action but were instead targeted and harmful. The court issued an order prohibiting the respondent from engaging in the conduct that was found to be bullying. Additionally, the court recommended that the workplace implement measures to prevent future incidents of bullying and to support the applicant's return to work. The decision underscored the importance of creating a safe and respectful work environment and the FWC's commitment to addressing workplace bullying.

Orders