Amarjit Kaur Sardar v Debra Coleman, Steven Lazzarini, Nadia Marroni, Wongaburra Society
[2022] FWC 63
•21 JANUARY 2022
| [2022] FWC 63 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Amarjit Kaur Sardar
v
Debra Coleman, Steven Lazzarini, Nadia Marroni, Wongaburra Society
(AB2021/544)
| COMMISSIONER HUNT | BRISBANE, 21 JANUARY 2022 |
Application for an FWC order to stop bullying
On 27 September 2021, Ms Amarjit Kaur Sardar made an application pursuant to s.789FC of the Fair Work Act 2009 (the Act) to the Fair Work Commission (the Commission) for an order to stop bullying. Ms Sardar commenced employment with Wongaburra Society (the Employer), an aged care facility in late June 2021.
Ms Sardar sought orders against Ms Nadia Marroni, HR Manager, Mr Steven Lazzarini Support Services Manager, and Ms Debra Coleman, Head Chef, (collectively, the Persons Named).
Mr Atul Singh, Chief Executive Officer of the Employer represented the Employer in these proceedings.
The allegations of bullying and the Employer’s response
Form F72 – Application for an order to stop bullying
On 27 September 2021 Ms Sardar lodged her Form F72 – Application for an order to stop bullying (F72), naming the Persons Named (referred to above). Ms Sardar indicated in the F72 that she was unsure whether she was still employed by the Employer, but that she was, or had been, employed in the capacity of an employee. As to whether she was attending work, Ms Sardar stated:
“I have sent an email to HR with title Harassment, Bully Complain- exit on 24 Sep 2021 Friday.
* HR did no investigation and sends back an email saying your resignation is accepted?”
Ms Sardar described the alleged bullying behaviour as follows:
“Workplace (HR) has done no investigation about my email sent with the title “Harassment, Bully complaint – exit”. Instead they have taken that as a resignation? Does this comply with the fair work policy?
13 page document attached of explanation and incidents.”
On the F72 form, Ms Sardar ticked yes, that she had been advised that she was not performing her duties to the required standard, or that she was facing disciplinary action. As to remedy, Ms Sardar stated:
“I have left the workplace on Fri 24 Sep 2021 2pm feeling very unhappy, disappointed, harassed, bullied (not resigned).
I receive the email from HR saying resignation accepted with out any investigation.
I am stressed and sitting at home. This matter should be investigated and be called back to work and get paid for the lost time.”
As referred to above, Ms Sardar provided a 13 page handwritten submission along with her F72 application. In this submission, Ms Sardar stated:
· Her first shift was on 25 June 2021;
· All her shifts had been in the nursing home servery, which housed 21 residents;
· She worked long shifts, sometimes in excess of 12 hours;
· After being encouraged to do so by her husband, she began to end her shifts at no later than 6pm ‘as all other servery girls do
· The pressure of racism has been building up and up; and
· She started to see complaints put in about her, and she provided relevant detail.
The final two pages of the 13 page submission were emails. The first email was from Ms Sardar to the general human resources email address for the Employer, sent on 24 September 2021 at 2:03PM (AEST) as follows:
“Subject: Harassment, Bully complaint- exit
Goodafternoon Nadia,
I am putting in the complaint and leaving now 2pm 24 September 2021 from Wongaburra aged care facility, as I am feeling very unhappy, disappointed, harassed and bullied in this workplace.
I cannot continue working here in these conditions.
Thanks
Kind regards
Amarjit Sardar”
The second email is a response from Ms Nadia Marroni, HR Manager; one of the Persons Named. This response was sent by Ms Marroni to Ms Sardar on 27 September 2021 at 7:37am, and reads as follows:
“Subject: Harassment, Bully complaint- exit
Hello Amar,
Thank you for your email.
Wongaburra acknowledges and accepts your resignation effectively from 24 September as indicated on your email.
We would like to wish you all the best for your future endeavours.
Kind regards,
Nadia Marroni
HR Manager”
Form F73 – Response from an employer/principal to an application for an order to stop bullying
On 7 October 2021, the Employer lodged a Form F73 – Response from an employer/principal to an application for an order to stop bullying (F73). In the F73, the Employer has ticked “Yes” at item 1.1 in response to the question “Is the Applicant still employed or engaged at the place where the alleged bullying took place?”
In the F73, the Employer stated:
“Wongaburra Society has not received any correspondence or communication regarding bullying prior to the alleged email on 24rth [sic] of September 2021 Friday.
This email was sent to the HR Manager who was not at work on that day.
The applicant had left the workplace without finishing her shift and had not informed her colleagues or her supervisor on the floor. An hour and quarter later other support services staff reported that the applicant was late in coming back from her break (as staff assumed and thought).
The floor staff contacted the admin office to find out where the applicant had gone. Admin then rang the applicant to enquire about her whereabouts and if she was ok. The applicant responded to the admin staff that she was not coming back to this work place, that she has already left the work place, and that she has sent an email to HR.”
As to the Employer’s response to Ms Sardar’s claims, the Employer said in the F73 that it “has a clear policy and procedure in place for bullying and discrimination in the work place.” The Employer continued:
“After Investigating the claim made by applicant, Wongaburra Society believes that all the encounters the applicant has listed in her application are work related performance management discussions by the Support Service Manager. All encounters are reasonable work related discussions with the applicant to support and improve the work outcome for the staff member and ensure the most vulnerable population of our elderly clients are served correctly.
All the discussions that have happened in last months were all work related.
Almost 50 percent of Wongaburra's workforce are either born overseas, speak at least 2 languages or have different cultural beliefs. Our work force is very diverse from ethnicity to language and to culture. Wongaburra Society being a non-for profit stand-alone rural organization employs people based on their merits rather than physical or racial background.
In the case of the applicant, when she made a request about obtaining more shifts, Wongaburra's Support Services Manager accommodated her request. Thus, from 32 Hours a fortnight, she was given up to 69 hours as per her request.
Wongaburra advocates that it is always advisable for a person to come and voice their concerns before it gets to this point. The applicant was given opportunity to voice her concerns on several occasions to the HR Manager.”
As to disciplinary action and performance management in respect of Ms Sardar, the Employer said that Ms Sardar had been spoken to by the Support Services Manager regarding her work performance and the expectations regarding the standards that were required for her role at Wongaburra, and advised that these informal conversations had been “recorded” by the Support Services Manager. The Employer added:
“One of the examples regarding support offered to the applicant was having an external consultant provide one-on-one training regarding Wongaburra's hospitality and dietary service software. The applicant declined this support at the time and the applicant did not offer any alternative timeframe to attend the training.”
The Employer contended that the alleged bullying behaviour was reasonable management action, carried out in a reasonable manner. It stated that it supported the actions of the Persons Named.
Form F74 - Response from a person against whom bullying has been alleged to an application for an order to stop bullying
The Employer filed Form F74 - Response from a person against whom bullying has been alleged to an application for an order to stop bullying (F74) responses from Ms Marroni and Mr Lazzarini.
F74 – Nadia Marroni, HR Manager
Ms Marroni stated in her F74:
“In my role of HR Manager, I was involved in the recruitment process with the Support Services Manager regarding the employment of Mrs Amarjit Kaur Sardar. Amarjit is employed on a PPT basis as a Domestic Support staff member. Amarjit started her employment with Wongaburra on the 28 June 2021.
Amarjit was taken through the orientation process once having completed all the mandatory on line onboarding modules that every employee needs to complete.
Amarjit was rostered on 6 buddy shifts, 28th , 29th and 30th June 2021. 1st, 2nd and 5th of July 2021. This is part of our process so new staff are trained in the role and shown what is expected of the role.
During her tenure here at Wongaburra undertaking shifts both in the servery and cleaning department, there have been complaints verbal and written received about her work performance from co-workers.
The Support Services Manager and I have had several meetings discussing how best to support Amarjit in her journey here at Wongaburra and to ensure that the quality of her work is improved, The Support Services Manager has made a point of diarizing the conversations that he has had to have regarding Amarjit's work and the support that has been provided to her.
The Support Services Manager and I have been very clear in that support and training would be continuous in order to help Amarjit in obtaining the required standard that is needed in her role here at Wongaburra.
Ms Marroni’s response to the allegations made in respect of her behaviour was as follows:
“As HR Manager, I would be the first point of call in receiving claims regarding bullying.
I have had conversations with Amarjit in a casual manner i.e. how is your day going etc.
Not once in these casual conversations has Amarjit ever expressed that she was being bullied or otherwise.
My last encounter with Amarjit was on the 20 September 2021 whereby she came into my office to request a new swipe card (ID). I once again asked Amarjit how she was going and received a positive response from her. I generated her new swipe card to which she thanked me before she left my office.
The above is a true account of my interactions with Amarjit.
There is no evidence verbal or otherwise that has been brought to my attention regarding bullying. Amarjit has been spoken to about her work performance and has been given support where needed. This is fully documented and has been brought to my attention to demonstrate that due process was observed. I have made sure that Amarjit has received the support where identified and ensured that a due process was followed regarding conversations about her work performance.”
Ms Marroni also contended that the alleged bullying behaviour was reasonable management action carried out in a reasonable manner, and provided the following contentions:
“All interactions with Amarjit have been based solely on her work performance and how best to support Amarjit in obtaining the standard that is expected of the role.
It has been Wongaburra's prime intention from the start to ensure that Amarjit receive all the support needed in order to obtain the required standard for the role to which she is employed.
No allegation has been brought to my attention about bullying from Amarjit or otherwise. I have not received any complaints verbal or otherwise regarding Amarjit's claim of bullying.”
F74 – Steven Lazzarini, Support Services Manager
Mr Lazzarini stated in his F74:
“In my role of Support Services Manager my observation was that Amarjit seemed frustrated and was not able to grasp the procedures with regards to hygiene policies/procedures and food safety guidelines concerning the safety of residents and their dietary requirements.
Amarjit was not able to complete the cleaning and restocking of the servery/kitchenette within the allotted timeframes. As the Support Services Manager I spent time in coaching and explaining the role and what it entailed and how best to complete the allotted tasks.
All my conversations with the applicant were file noted. I touched based with the HR Manager to ensure that I was following the correct processes concerning providing support to Amarjit.
All my interactions with Amarjit were based solely on her work performance.”
Mr Lazzarini’s response to the allegations made in respect of his behaviour was as follows:
“As part of my sole supporting new staff I check in and monitor their progress regularly.
In my last interaction with Amarjit, on Thursday the 23 September whilst doing my rounds, I walked into the kitchen and noticed that the floor was extremely dirty. I asked Amarjit if she could ensure that the floor be mopped after the lunch service, as per the work instructions for this role.
Amarjit started to complain that the other staff members did not mop the floors and then she went on about how many residents she has to serve compared to everyone else. Amarjit stated that it was unfair.
I then asked Amarjit if she wanted to go work in another area, as other staff who work in the kitchen do not have an issue with completing the tasks in the required timeframe.”
Mr Lazzarini also contended that the alleged bullying behaviour was reasonable management action carried out in a reasonable manner, and provided the following contentions:
“All my interactions with Amarjit were recorded and file noted. I have provided support where identified by other staff members documenting their concerns about Amarjit's work performance.
When I have received a complaint or concern from other staff members regarding Amarjit not completing tasks or serving a resident the correct modified texture foods, I have followed up with Amarjit and offered further support and education to ensure she is able to complete the work tasks to standard.
Even engaging an external consultant to assist with the food service, to which Amarjit refused stating she did not have time, and was not open to rescheduling the session.
When Amarjit stated she felt she had too many residents to tend to in one area, I offered her the option to move areas to which she also declined.”
Mr Lazzarini provided a number of typed file notes ranging in date from 14 July 2021 to 23 September 2021. Mr Lazzarini also lodged the original handwritten diary entries from which the file notes were typed, along with notes and correspondence from other staff which formed part of the file notes.
The proceedings before the Commission
On 7 October 2021, Mr Yadwinder Singh, the husband of Ms Sardar, sent the following email to the Employer and the Commission:
“I am writing in regards to my wife who was victim of racism at wongaburra aged care.
Could you Atul as ceo , […] FWC or Hr tell us about the racist people at workplaces harassing their colleagues and still having a label on their face to recognise them as racist.
No , you can’t. All of you very clearly know and are in the positions to find out that how minorities people are targeted by racism. In this region of Beaudesert number of other than white people is very thin. And I have experienced same thing in my last 15 years career of truck driving. Minorities being harassed, put behind the queue for better opportunities . All those people who harassed my wife had very clear knowledge of anti racism laws of land. Same as people seem to drive nicely on road when cameras and police are not around.
Years ago, on WA news paper, on front page there was map of all countries. Every country was defined by words. Map of Australia was having RACISM, I can’t forget that.
Let me tell all of you that my wife has already worked in management and many other nursing homes in Victoria and WA. She has a Masters in Information Systems from Central Queensland University. She didn’t have any problems there because number of Indian colleagues was also good enough to keep an eye out.
My wife has rather worked longer hours whereas I was not happy with her whenever she told me reason for working unpaid hours. You gave her 21 persons to look after and others got 10 , 11, 13. Other employees finished early and my wife still struggling to finish even much later than 6:00pm.
I told my wife not to care about finishing as you are not going to be paid for extra work. And told her rather work like truck drivers and make sure clock on / off is at doors of nursing home , they must not get you to walk around on their property unpaid before start and after finish of job .
Moreover $22/hr was very low, she has worked until now.
Now a few words for FWC, better change the name of your department , something like Fair Colored Australia if you can’t talk to victims of racism face to face and can’t find solutions for FAIR WORKS CONDITIONS.
Very shameful way of Enquiries you have made and shameful for that bunch of employees who harassed and bullied.
This can be talked further … until fruit of justice is picked.”
On 8 October 2021, Mr Atul Singh, for the Employer, sent the following email to the Commission:
“Have you seen below email from Amar’s Husband.
I am very concern of his aggressive tone and emotional generalised view of the everyone.
Wongaburra will not engage with him as it seems that he have a very firm view and very generalised view.
We understand people can be upset about process but this is a next level of Unacceptable response from the applicant or its representative.
I have thought block that some can go this far to write something like this.”
On 11 October 2021, this application was allocated to me. I notified the parties by email that day that this application was listed for a Conference by telephone on 19 October 2021.
On 12 October 2021, Ms Sardar emailed my Chambers to request that her husband be dialled-in for the Conference.
The Conference proceeded on 19 October 2021. At the Conference, it was agreed between the parties that Ms Sardar was willing to work further shifts, that the Employer was prepared to offer shifts to Ms Sardar, and that if she were offered such shifts, Ms Sardar would accept and work them. The parties agreed to deal with the logistics of this between themselves, noting that rosters were published fortnightly.
I emphasised to Ms Sardar the importance of demonstrating, when seeking orders to stop bullying, that there is a risk that the worker will continue to be bullied at work, and that orders cannot be made if it is only asserted that bullying has occurred in the past but is not likely to continue at work.
On 26 October 2021, following the Conference, my Chambers was copied in an email from Mr Atul Singh, of the Employer, to Ms Sardar. The email from Mr Atul Singh contained a number of emails in the chain which are summarised as follows:
(a) On 5 October 2021, Ms Marroni emailed Ms Sardar asking whether she would be attending any shifts that week.
(b) On 20 October 2021, Ms Marroni, forwarding the above email to Ms Sardar, there having been no apparent response from Ms Sardar, asked Ms Sardar whether she would meet with the Employer on 2 November 2021 to discuss resuming shifts on 3 November 2021 in the laundry. Ms Marroni advised that discussion would be had with Ms Sardar’s input, around the allocation of “buddy shifts”.
(c) On 20 October 2021, Ms Sardar responded, “I would like to do nursing shift rather than laundry as it has good money as well as I have the certification in nursing. I can come and meet you in the office on 2 November 2021 at 9 am.”
(d) On 20 October 2021, Ms Marroni then responded, “Wongaburra would like to have a further discussion and interview regarding your request for AIN shifts. We would like to organise a meeting with you on Tuesday the 26 October at 10:30am.”
(e) On 20 October 2021, Ms Sardar accepted the offer to attend an interview for a nursing position on 26 October 2021.
(f) On 20 October 2021, Ms Marroni said to Ms Sardar:
“Thank you for your prompt response and advising your available to come in for a discussion/interview on Tuesday the 26 October 2021. Please be aware that this is not a guarantee for a position as an AIN as we have to follow the interview process.
I would just like to take this time to remind you, as per the conversation with the Commissioner from Fair Work there is an expectation that you return to work in the Support Services team from Wednesday the 2 November 2021.
These shifts are in the laundry as discussed and were agreed upon with the Commissioner and Support Services Manager.”
(g) On 20 October 2021, Ms Sardar responded:
“I won’t be working in the laundry. Otherwise I will open the dispute with the commissioner and you can bring the camera recordings of my work proving my inefficiency as statements don’t work. People speak lies.”
(h) On 25 October 2021, Ms Marroni responded to the above email as follows:
“Thank you for your email dated 20 October 2021.
I have attached to this email a signed copy of your contract of employment clearly identifying the department to which you are employed here at Wongaburra which is in the Support Services department entailing laundry, cleaning, kitchen and food services.
As indicated in my last email to you, and as per the conversation with the Commissioner from Fair Work, agreement was reached by all parties and a set outcome was agreed as to the way forward.
The agreed outcome was that you would undertake as of the 3 November shifts in the laundry.
We are confused by your email below. I just want to clarify, do you wish to work in Support Services department as per your employment contract?”
(i) On 26 October 2021, Ms Sardar then forwarded the above chain of emails from 5 to 25 October 2021 to Mr Atul Singh, CEO of the Employer along with a further email. Until this point, the subject lines of the emails between Ms Marroni had been “Touching base”. The subject line now read: “Bullying, Racism- update”. Ms Sardar’s email to the CEO read as follows:
“Can you please see as to what is happening with your HR department.
I have sent in Expression of interest for Nursing shift and Catering shift when I moved to Woodhill on 18/1/2019 pic attached. Reply by Tessa Schuh attached.
Should a vacancy arise we will contact you.
25/8/2020 another Expression of interest email sent to hr - Tessa Schuh pic attached. Same response pic attached. Should a vacancy arise we will contact you.
4/9/2020 I walked in to your office and spoke to Tessa about any vacancy then finally they called me for an interview by getting a flu shot but no outcome was given- they said due to COVID we will call you later.
7/6/2021- Job applied through seek home care/ AIN -No response
11/6/2021- I saw volunteers needed advertised. Drove in and went to the office to find out what is going on? Why have you got volunteers needed when you are not responding to the job applications? Spoke with Nadia and told her I already had interview with Tessa and Daffany and am still waiting for my shifts or call?
15/6/2021- Nadia says come for interview for Home care and I said I would like to do AIN as I have certificate and work experience and written references (attached)
Nadia then books an interview with Steven and now all this bullying and racism to kick me out from this workplace and work force.
You need to investigate this matter properly of Steven and HR and other staff.
I cannot accept the blame of performance issue it needs to be proven with all the facts whether the ain was not feeding the residents on time, whether your system is not up to date, your first aid box is out of date, cleaning schedules out of date, food wasteage is at max, incidents and claims can happen very easily due to itsy and clinical care recording not getting done properly. Laundry is a mess.
I will not be doing laundry shift as I don’t have certificate in that area.
I will work in the area of my expertise AIN.
Also please see the below email from Nadia where she says come for AiN on 26 Oct 2021 and then pushes me to laundry.
I am giving you an opportunity to investigate this matter check the shift recordings, the diary in nursing home and adsett. The extra work recorded on the cleaning schedule of the nursing home, the map I made in WW to make it easier etc… the RN’s -Karki Devi, Iqbal, Simran on duty and then decide about performance.
I will wait to hear back from you for any clarification or proof. As I can’t take the mark of performance issue on my name when I have worked as Systems support officer - Town of Kwinana Council ( 4 years), Senior liaison officer- Telehealth / E- Health Advisor- MRNWM Medicare Local, Currently Director of Almiety Pty Ltd.”
(j) On 26 October 2021, Mr Atul Singh of the Employer responded to Ms Sardar, copying my Chambers, as follows:
“The material you are referring to is part of the normal process of recruitment and applying for positions. There is no guarantee that someone will offer you a job every time you apply.
However, you did get a position at Wongaburra and accepted the position freely as per your signing of the employment contract.
I cannot speak or comment on the past HR manager and other management decisions on the hiring process.
However, I would like to restate that Wongaburra does not tolerate workplace bullying and discrimination. Wongaburra has a significant proportion of staff with varied cultural and ethnic backgrounds which has been in our workforce for a long time.
I think we need to understand the difference between Workplace disputes and Workplace discrimination.
We have investigated your lodged claim and submitted our response to the Fair Work Commissioner. During the mediation session, Commissioner Hunt has given some directive to both parties to follow. And Both parties agreed to this.
I believe there was a meeting supposed to happen today? But you did not turn up or communicate you wishes to not attend or otherwise.
I think, you need to respond to the email specifically sent to you by the HR manager on 25th October 2021 and clarify your status of employment and your intention to attend the work place duties as discussed and agreed upon during the mediation with Fair Work Australia.”
By 8 November 2021, no further correspondence had been received from the parties. I emailed the parties as follows:
“The Commissioner notes that the parties were encouraged at the Conference of 19 October 2021 to continue liaising and there was an indication the Applicant would return to work.
The matter before the Commission is an anti-bullying application. The Commissioner notes it is not for the Employer Party to prove that the Applicant has been under-performing to the Applicant’s satisfaction.
If the Applicant wishes to press the anti-bullying application, it is for the Applicant to demonstrate she has been bullied in the past, is likely to be bullied in the future, and that this is a causing a risk to her health and safety.
The Commissioner is available to convene a further telephone conference on Tuesday, 16 November 2021 if the Applicant requests a conference. The Commissioner advises that she is not deciding the matter; she is encouraging the parties to try to resolve the issues between them. Following the Conference, if the Applicant wishes for the application to progress to a hearing, the Commissioner will issue directions for the filing of evidence and submissions by the parties.”
On 9 November 2021, Ms Sardar responded:
“The matter is about Bullying and harassment. The day I left the place with the email to HR about bullying, exit.
What did HR do? She took it as resignation. Did she investigate the matter, no.
After the conference on 19oct 2021, I said to HR I would like work as AIN and not in laundry as I have experience in AIN and kitchen and I liked it, I was given the work of laundry all of sudden. Later on I realised that I didn’t want to do laundry work and nor I have any experience.
HR is supposed to offer me work of AIN and kitchen as they already interviewed me for AIN work whereas HR is turning back to offering laundry work again and again when communicating to me.
Either I will go back in kitchen or AIN for which I hold the certificate and covid , flu vaccinations done as well.
If they can provide me with the shifts then I will go back to work.
I am emailing HR and CEO so they can advise me clearly.
Otherwise we will have to proceed with the charges and cannot do 16 Nov 2021 for the conference.
It can be 17 Nov 2021 or any other day.”
On 10 November 2021, I issued Notices of Listing to the parties, advising them that a further Conference would be convened on 17 November 2021.
The further Conference then proceeded on 17 November 2021. Ms Sardar’s husband, Mr Yadwinder Singh, became incredibly disruptive during the Conference and I directed him on numerous occasions to remain silent during the call. Mr Yadwinder Singh refused to cooperate with my direction, accordingly, I terminated the Conference on that basis.
On 17 November 2021, following the Conference, my Chambers sent the following email to the parties:
“Reference is made to the above matter and the conference held today at 3:30PM (AEST).
The call was terminated after repeated warnings were given to the Applicant's husband, Mr Yadwinder Singh, to cease talking.
The Commissioner noted that Mr Lazzarini indicated that the Applicant would be rostered from 1 December 2021 to work a minimum of 16 hours in the servery.
The Commissioner notes that Ms Marroni stated that the Employer requires the Applicant to obtain a medical clearance from her GP certifying her fit for work. On that basis, the Commissioner recommends that the Applicant promptly obtain a medical clearance from her GP, certifying her fit for work from 1 December 2021 or an earlier date.
The Application before the Commission will be held in abeyance until the Applicant communicates in writing, copying-in all other parties:
- her desire to have a future conference (where Mr Yadwinder Singh will not be permitted to attend); or
- advising that she seeks directions for this matter to proceed to arbitration (hearing). If the Applicant does wish for the application to proceed to arbitration, she will be required to file a detailed witness statement, and the Persons Named and Employer will need time to prepare evidence by filing detailed witness statements. The Commissioner advises that the matter will not proceed to arbitration until January 2022.
If no correspondence is received from the Applicant by 15 December 2021, the Commissioner’s Associate will communicate in writing to all of the parties inquiring as to the status of the application.”
By 15 December 2021, no correspondence was received from any party to this matter following the above email.
On 16 December 2021, my Chambers sent the following email to the parties:
“Reference is made to the above matter and the below correspondence.
The Commissioner kindly seeks an update from the Applicant.
The Commissioner enquires whether the Applicant has obtained a medical clearance to work and provided such to the Employer Party. If the answer to the preceding question is in the affirmative, the Commissioner seeks advice from the parties as to:
- whether the Applicant has returned to work; and if so,
- how many shifts she has worked since returning; and
- when and whether she has worked with the Persons Named.
The Commissioner seeks advice from the Applicant as to whether she wishes to have a further conference. If a further conference is requested by the Applicant it will be convened in mid-January 2022.”
On 16 December 2021, Ms Marroni, responded on behalf of the Employer:
“Thank you for your email, Wongaburra can confirm the following:
• The Applicant has not returned to work
• The Applicant has not undertaken any shifts
• The Applicant has not provided a medical certificate
Further to the above, the Applicant has not made any contact with Wongaburra.”
By 23 December 2021, Ms Sardar had not responded to the above query. The following correspondence was sent from my Chambers to the parties:
“Reference is made to the above matter and Conference held on 17 November 2021 at which it was agreed that the Applicant would take steps to return to work.
The Employer Party has advised below that, from their perspective, no action has been taken by the Applicant to return to work.
If the Applicant will not return to work, the Commission cannot make Orders to stop bullying. This is because of section 789FF(1)(b)(i) of the Fair Work Act 2009 (the Act) which requires that “… there is a risk that the worker will continue to be bullied at work by the individual or group” the key words being “at work”. Please consider the Commissioner’s recent decision in Briggs v G8 Education Ltd t/a Kindy Patch West Ipswich; Pettersen[2021] FWC 6650 in the context of a person who considered that they were no longer employed and would no longer attend work.
If the Applicant will not be at work in future, the Commissioner’s preliminary view is that this application should be dismissed pursuant to s.589(1)(c) of the Act on the basis that it has no reasonable prospects of success, the reason being that in order to succeed, the Applicant will have to demonstrate a risk that she will be bullied at work.
The Commissioner invites the Applicant to outline:
- Whether she wishes to return to work;
- What attempts, if any, she has made to return to work and take on shifts;
- Why she has not yet returned to work; and
- What attempts she has made to obtain a medical certificate clearing her as fit to return to work.
Alternatively, if the Applicant does not wish to continue with this application, she may withdraw the application at any time by writing to chambers advising that she wishes to discontinue the application.”
By 6 January 2022, Ms Sardar had not responded to the above email. The following correspondence was sent from my Chambers to the parties:
“Reference is made to the above matter and the below correspondence.
Chambers confirms no response has been received to date to the below email.
The Commissioner directs that the Applicant provide a response to the below email by no later than 4:00PM (AEST) Friday, 14 January 2022.
If the Applicant does not withdraw her application prior to that date, the Commissioner’s preliminary view is that she will, following that date, issue a decision dismissing the application on account of the Applicant not being at work. Please note that most documents issued by the Fair Work Commission are available online. Decisions and orders are publicly available as soon as they are issued by the Commission.”
Ms Sardar has not responded to any of the Commission’s attempts to seek an update from her. The last time Ms Sardar interacted with the Commission was in her attendance at the further Conference on 17 November 2021 which, as I have earlier explained, was terminated due to her husband’s refusal to behave appropriately at the Conference.
Relevant legislation
A worker who reasonably believes that he or she has been bullied at work may apply to the Commission for an order to stop bullying. Section 789FC of the Act provides:
“789FC Application for an FWC order to stop bullying or sexual harassment
(1) A worker who reasonably believes that he or she has been bullied or sexually harassed at work may apply to the FWC for an order under section 789FF.
(2) For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force.
Note: Broadly, for the purposes of the Work Health and Safety Act 2011, a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.
(3) The application must be accompanied by any fee prescribed by the regulations.
(4) The regulations may prescribe:
(a) a fee for making an application to the FWC under this section; and
(b) a method for indexing the fee; and
(c) the circumstances in which all or part of the fee may be waived or refunded.”
Section 789FD of the Act sets out when a worker has been bullied at work, as below:
“789FD When is a worker bullied at work or sexually harassed at work?
(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.
(2A) A worker is sexually harassed at work if, while the worker is at work in a constitutionally‑covered business, one or more individuals sexually harasses the worker.
(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:
(a) the person is:
(i) a constitutional corporation; or
(ii) the Commonwealth; or
(iii) a Commonwealth authority; or
(iv) a body corporate incorporated in a Territory; or
(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;
then the business or undertaking is a constitutionally-covered business.”
The circumstances in which the Commission may make orders to stop bullying are set out in s.789FF of the Act, as produced below:
“789FF FWC may make orders to stop bullying or sexual harassment
(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) the FWC is satisfied that the worker has been sexually harassed at work by one or more individuals, and the FWC is satisfied that there is a risk that the worker will continue to be sexually harassed at work by the individual or individuals;
then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to:
(c) if subparagraph (b)(i) applies—prevent the worker from being bullied at work by the individual or group; or
(d) if subparagraph (b)(ii) applies—prevent the worker from being sexually harassed at work by the individual or individuals; or
(e) if subparagraphs (b)(i) and (ii) apply:
(i) prevent the worker from being bullied at work by the individual or group; and
(ii) prevent the worker from being sexually harassed at work by the individual or individuals.
(2) In considering the terms of an order, the FWC must take into account:
(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body—those outcomes; and
(b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes—that procedure; and
(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes—those outcomes; and
(d) any matters that the FWC considers relevant.”
Consideration
Pursuant to ss.789FF(1)(b)(i) of the Act, for the Commission to make orders with respect to an application under section 789FC for an order to stop bullying, it must be satisfied that the worker was bullied at work and that there is a risk that the worker will continue to be bullied at work.
The leading authority on the application of s.789FF(1)(b) in analogous cases is Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines.[1] In that case Gostencnik DP held that:
“[15] As s. 789FF(b) makes clear, I must be satisfied not only that Mr Shaw has been bullied at work by an individual or group of individuals but also that there is a risk that he will continue to be bullied at work by that individual or group of individuals. Therein lays the difficulty for Mr Shaw. It seems to me that I have no power to make an order to stop bullying unless I can be satisfied relevantly that there is a risk that at work Mr Shaw will continue to be bullied by the individual or group of individuals identified in his application.
[16] It is clear that Mr Shaw is no longer employed by ANZ. The employment relationship has ended. That Mr Shaw is taking steps to seek a remedy in relation to his dismissal and that that may result in reinstatement at some point in the future does not have a bearing on the question that I must answer and is speculative and uncertain. It seems to me clear that there cannot be a risk that Mr Shaw will continue to be bullied at work by an individual or group of individuals identified in his application because Mr Shaw is no longer employed by ANZ and therefore is no longer at work.
[17] It necessarily follows that I do not have power to make an order to stop bullying and, as a consequence, I am satisfied that Mr Shaw’s application has no reasonable prospect of success.”
This position was subsequently affirmed by the Full Bench in Obatoki v Mallee Track Health & Community Services and Others.[2]
For the Commission to make orders under s.789FF of the Act, it is necessary that there is a risk that the worker will continue to be bullied ‘at work’. That an applicant for orders to stop bullying will be ‘at work’ is a fact that must be able to be determined in the affirmative, in order for an application for such orders to be decided in an applicant’s favour. In my recent decision in Application by Briggs [2021] FWC 6650, for example, I dismissed an application to the Commission for orders to stop bullying after finding that an employee who asserted she had been dismissed had no reasonable prospects of success. Because it was necessary for Ms Briggs to demonstrate that she would be bullied at work in future, I found that her “unwavering assertion that she has been dismissed [was] entirely incongruent with her having any reasonable prospects of success in the immediate application for an order to stop bullying.”
Ms Sardar has, in my view resisted attempts to return to work. She insists she will only return in an AIN position. She is not employed as an AIN and has no basis to assert that is the role for which she will return. Numerous attempts have been made by the Employer to return Ms Sardar to work in suitable positions, if she is able to provide a medical clearance stating she is fit to return to work. Having regard to the absence of Ms Sardar from the workplace and the kind of work she is required to perform on her return to work, I consider the position taken by the Employer on his issue to be appropriate
Having regard to Ms Sardar’s failure to communicate with the Employer and with the Commission for a considerable period of time, I am satisfied that there is no present risk that Ms Sardar will continue to be bullied at work, as required for an order to be made. That is so because Ms Sardar’s conduct in these proceedings, and toward her Employer, has not evinced any intention for her to be at work with the Employer in the future, except on her own unilateral terms as an AIN, a role in which she is not employed. Accordingly, the requirements of s.789FF(1)(b)(i) cannot be satisfied.
Section 587(1) of the Act provides:
“587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.”
Ms Sardar’s conduct in prosecuting this application does not accord with her having any reasonable prospects of success in the immediate application for an order to stop bullying.
In considering all of the circumstances, having satisfied myself that there is no risk of Ms Sardar being bullied at work pursuant to s.789FF(1)(b)(i) of the Act, I am also satisfied that as a result, the application has no reasonable prospects of success and it is appropriate in all of the circumstances to dismiss the application.
It is not necessary in this decision to determine if Ms Sardar was bullied at work in the past.
The Commission has had due regard to the concerns of Mr Atul Singh of the Employer and his submissions that the Employer’s workplace is a multicultural workplace which does not tolerate racism. His consternation that Ms Sardar has branded the workplace a racist workplace is understandable. These matters could only be tested if relevant evidence was put before the Commission, and not simply by assertions made by Ms Sardar and her husband.
I note that, in the event that Ms Sardar does obtain a medical clearance to return to work, and is offered shifts by the Employer, and she attends those shifts, it may certainly be open to Ms Sardar to make another application pursuant to s.789FC of the Act if she reasonably believes that she has been bullied at work and wishes to seek orders from the Commission to stop bullying.
Accordingly, the application is dismissed under s.587(1)(c) of the Act.
COMMISSIONER
[1] [2014] FWC 3408.
[2] [2015] FWCFB 1661 at [16].
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