Application by Christian Roser
[2022] FWC 2430
•13 SEPTEMBER 2022
| [2022] FWC 2430 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Application by Christian Roser
(SO2022/102)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 13 SEPTEMBER 2022 |
Application for an FWC order to stop bullying – Commission not satisfied on the evidence that there is a risk that the Applicant will be continued to be bullied at work by named individual – Full Bench decision in Mekuria v MECCA Brands Pty Ltd [2019] FWCFB 2771; (2019) 289 IR 105 applied - application dismissed.
Introduction
The Applicant, Mr Christian Roser, has filed a Form F72 anti-bullying application (Application) with the Fair Work Commission (Commission) seeking relief (in the form of stop-bullying orders) under Part 6-4B of the Fair Work Act 2009 (Act).
The Respondents to the Application are the Applicant’s employer, Woolworths Group Limited (Woolworths), and an individual, Ms Susana Hopoi (nee Havili). The Applicant and Ms Hopoi previously worked on the same shift, however, since late 2020, the Applicant has worked on the morning shift, and Ms Hopoi has worked on the afternoon shift.
After an unsuccessful conciliation conference conducted to resolve the Application, the matter was heard in Sydney on 19 April 2022. The Applicant filed his final closing written submissions on 23 August 2022.
At the Hearing, the Applicant was represented by Mr Victor Gazi, a relative of the Applicant, and the Respondents were represented (with permission) by Ms Vanja Bulut, of counsel, instructed by Ms Sharissa Thirukumar, Senior Associate, Clayton Utz lawyers.[1]
As is apparent from the findings and reasons that follow, this Application has been determined not by reference to whether or not the Applicant has been bullied at work, but on the basis of whether I can be satisfied that there is a risk that the Applicant will continue to be bullied at work (s.789FF of the Act).
Legislation and case law
Sections 789FD and 789FF of the Act[2] read:
789FD. When is a worker bullied 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.
(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.
789FF. FWC may make orders to stop bullying
(1) If:
(a) a worker has made an application under section 789FC; and
(b) the FWC is satisfied that:
(i) the worker has been bullied at work by an individual or a group of individuals; and
(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;
then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.
(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.
In Mac v Bank of Queensland Ltd[3], Vice President Hatcher pointed out that the Commission’s power to make an order under s.789FF(1) of the Act is conditional upon the Commission being satisfied of three prerequisites:
“[75] It can be seen that s.789FF establishes three prerequisites to the exercise of the power to make anti-bullying orders:
(1) A worker must have made an application under s.789FC.
(2) The Commission must be satisfied that the applicant worker has been bullied at work by an individual or group of individuals.
(3) The Commission must be satisfied that there is a risk that the applicant worker will continue to be bullied at work by the individual or group of individuals.”[4]
Further, in Mekuria v Mecca Brands Pty Ltd[5] (Mecca Brands) the Full Bench of this Commission found:
“[29] Apart from the requirement for an application to have been made under s.789FC, s.789FF(1) establishes two prerequisites: first, the Commission must be satisfied that the worker has been bullied at work by an individual or group of individuals and, second, the Commission must be satisfied that there is a risk that the worker will continue to be bullied at work by the individual or group. The use of the definite article in s.789FF(1)(b)(ii) in connection with the individual or group of individuals indicates that they must be the same as the individual or group of individuals considered for the purpose of s.789FF(1)(b)(i). That is, it is not sufficient to satisfy the second condition in s.789FF(1)(b)(ii) by demonstrating that there is a risk of being bullied at work by individuals other than those who have been found to have engaged in bullying pursuant to s.789FF(1)(b)(i).”[6]
The evidence
Both the Applicant and Ms Hopoi are employed by the same constitutionally-covered business (i.e. Woolworths).[7] The Applicant is a “worker” within the meaning of s.789FC(2) of the Act, and his allegations as to bullying concern alleged conduct towards him when he was “at work”. It is apparent that the Applicant holds a “genuine belief” that he has been bullied at work (s.789FC(1)).
The Applicant did not file or otherwise rely upon a witness statement from himself in these proceedings. Rather, the Applicant filed a series of documents and document extracts (i.e. expressions of interest for training modules, photographs, text messages, medical certificates, emails, correspondence, investigation findings, and rosters) that he submits prove that he has been subjected to bullying at work. The Applicant also relies upon statements (letters) signed by various persons that essentially consist of hearsay and opinion about events that have happened, the character of the Applicant, and his purported treatment (in very broad terms) by the Respondent.
The Respondents tendered witness statements from Ms Hopoi, and Mr Sui Samataua, at the hearing. Both of these witnesses were cross-examined by Mr Gazi, albeit I do not consider that the cross-examination conducted is of assistance.
The Respondents totally deny that the Applicant has ever been bullied at work, and bring substantive evidence to that end. Relevantly, however, by reference to s.789FF of the Act, the Respondents made the following written submissions in relation to the evidence of Ms Hopoi and Mr Sui Samataua:
“5. The statements of Susana Hopoi dated 6 June 2022 (Exhibit R1) and Sui Samataua dated 7 June 2022 (Exhibit R2) describe the working structure of the temperature control team at the Distribution Centre, where both Mr Roser and Ms Hopoi currently work. The evidence demonstrates:
(a) employees at the Distribution Centre work pursuant to a shift period, being either on the day shift, afternoon shift or night shift;
(b) Mr Roser’s roster is on day shift which is between 5:00 a.m. to 1:30 p.m. There is no evidence that this will be changed;
(c) because Mr Roser and Ms Hopoi are on different shifts, they are unlikely to interact with each other at work;
(d) Ms Hopoi is the afternoon shift manager at the Distribution Centre. She is rostered on the afternoon shift, from 1:00 p.m. to 9:30 p.m.;
(e) Mr Roser’s team leader and the day shift manager have oversight for his work and responsibilities including rostering. Ms Hopoi has not had any influence over Mr Roser’s work since around December 2020; and
(f) Ms Hopoi’s role is to manage the store person employees on the afternoon shift. She does not have any influence over the work of the day shift employees such as Mr Roser. In her role she is responsible for the afternoon shift and the afternoon shift employees only.
6. Mr Roser’s submissions accept that Ms Hopoi does not work on the same shift pattern as he has since around December 2020.
7. Mr Roser’s allegations of bullying relate to him being rostered off “receiving” and being required to perform forklift duties in around mid-2020. Despite the reasons for this, and the fact that Mr Roser is required to complete forklift duties as part of his role as a store person employee, since that time, Mr Roser and Ms Hopoi have been working together in the Distribution Centre to today’s date without any allegations of bullying. Ms Hopoi’s evidence is that she has not spoken to or interacted with Mr Roser beyond usual pleasantries since around December 2020 when she moved to the afternoon shift. This reinforces Woolworth’s contention that there is no future risk of bullying to Mr Roser by Ms Hopoi as there has been no “bullying” (as alleged) since around mid-2020.”[8]
(footnotes omitted)
Having considered the uncontradicted evidence of Ms Hopoi and Mr Sui Samataua,[9] I adopt as findings the foregoing submissions of the Respondents. In view of these findings, even if it were to be accepted that the Applicant was bullied at work for the purposes of s.789FD of the Act, there is no evidence before me that allows me to be satisfied that there is a risk that the Applicant will continue to be bullied at the Woolworths’ workplace by Ms Hopoi.
Disposition
Given that I have not found, on the evidence before me, that there is a risk that the Applicant will continue to be bullied at work by Ms Hopoi, I dismiss the Application. An order to this effect will be published contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
Mr Victor Gazi, appeared for the Applicant.
Ms Vanja Bulut, of counsel, instructed by Ms Sharissa Thirukumar, Senior Associate, Clayton Utz lawyers, appeared for the Respondents.
[1] Permission for the Respondents to be legally represented was not opposed, and I granted permission pursuant to s.596(2)(a) of the Fair Work Act 2009 (Act).
[2] I note that on 10 September 2021, post the filing of this Application, the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth) took effect which amended this provision to also encompass sexual harassment at work.
[3] [2015] FWC 774.
[4] Ibid, at [75].
[5] [2019] FWCFB 2771; 289 IR 105.
[6] Ibid, at [29].
[7] As defined by s.789FD(3) of the Act.
[8] Respondent’s Reply Submissions, 10 August 2022, [5] to [7].
[9] Exhibit R1 at [3], [8], [27], [30] to [31], and [44]; Exhibit R2, at [5] to [7], [28], [39], and [41]; See also Transcript, PN113 to PN115.
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