Application by Judith Ellen Heyworth (Earp)
[2022] FWC 3340
•20 DECEMBER 2022
| [2022] FWC 3340 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Application by Judith Ellen Heyworth (Earp)
(SO2022/373)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 20 DECEMBER 2022 |
Application for an order to stop bullying – no risk of future bullying – application dismissed
Introduction and background
On 1 August 2022, Ms Heyworth, a psychologist, made an application in the Fair Work Commission (Commission) for orders to stop bullying (Bullying Application) pursuant to section 789FC of the Fair Work Act 2009 (Cth) (Act).
In her Bullying Application Ms Heyworth named her employer as “Warners Bay Private Hospital – Ramsay Health” and identified four persons who she alleges have engaged in bullying behaviour towards her. Those persons are Ms Monic Ortiger, Ms Merran Boyd, Ms Michelle Hamilton, Ms Kate Augustine, and Ms Sally Bartlett. It is alleged in the Application that one of the persons named (Ms Ortiger) is employed by a different employer, namely Ramsay Psychology Charlestown.
The employer response filed to the Bullying Application (Response) identifies two related employers/principals: (1) Ramsay Health Care Australia Pty Ltd (Ramsay Health Care) and (2) Ramsay Professional Services Pty Ltd trading as Ramsay Psychology Services (Ramsay Psychology).
Until 8 December 2022, Ms Heyworth was a part-time employee of Ramsay Health Care at the Warners Bay Private Hospital. Ms Heyworth worked in the role of psychologist.
In addition to her part-time employment with Ramsay Health Care at the Warners Bay Private Hospital, at all material times Ramsay Psychology has engaged Ms Heyworth as an independent contractor to provide psychology services at a facility located at Charlestown. The principal/contractor relationship between Ms Heyworth and Ramsay Psychology is ongoing.
Ms Ortiger is employed by Ramsay Health Care and works as a psychologist at the Warners Bay Private Hopital. At an earlier time, Ms Ortiger worked for Ramsay Psychology as a contracted psychologist at the Charlestown facility. Ms Ortiger ceased working in that role in about mid-2021.
Ms Boyd is employed by Ramsay Health Care as a Mental Health Allied Health Manager at the Warners Bay Private Hospital.
Ms Hamilton is employed by Ramsay Health Care as a HR Business Partner and has responsibility for activities at the Warners Bay Private Hospital.
Ms Augustine was previously employed by Ramsay Health Care as a HR Assistant and had responsibility for activities at the Warners Bay Private Hospital. Ms Augustine is no longer employed by Ramsay Health Care.
Ms Bartlett is employed by Ramsay Health Care as a HR Business Partner and formerly had responsibility for activities at the Warners Bay Private Hospital. Ms Bartlett now works at a different workplace and no longer has any responsibility for activities at the Warners Bay Private Hospital.
In October 2020, Ms Heyworth made a complaint about alleged bullying conduct on the part of Ms Ortiger and by other individual managers who have allegedly failed to investigate or appropriately deal with the complaint or with Ms Heyworth during the process.
In about April 2021, Ms Heyworth commenced a period of nine months’ leave without pay from her employment with Ramsay Health Care at the Warners Bay Private Hospital. Ms Heyworth continued working as a contractor for Ramsay Psychology during her leave of absence from Ramsay Health Care.
Ms Heyworth was due to return to work at the Warners Bay Private Hospital in early 2022. There was a disagreement about a range of matters, including the days and hours Ms Heyworth would work on her return at the Warners Bay Private Hospital. In the result, Ms Heyworth’s last day of work at the Warners Bay Private Hospital was 31 January 2022. Since that time Ms Heyworth has been absent from her employment at the Warners Bay Private Hospital.
In February 2022, Ms Heyworth made an unsuccessful application for workers’ compensation in relation to her employment with Ramsay Health Care at the Warners Bay Private Hospital. There is an appeal in that matter before the Administrative Appeals Tribunal.
Ms Heyworth has continued to work as a contracted psychologist for Ramsay Psychology at Charlestown.
On 5 October 2022, I conducted a conciliation conference. The matter did not settle. After the conference my Associate sent an email to the parties in the following terms:
“Dear parties
I refer to the conciliation conference in this matter before Deputy President Saunders earlier today.
The matter was unable to be resolved at conciliation.
Ms Earp has indicated that she wishes to proceed to a hearing of her application for orders to stop alleged bullying.
Ms Earp informed the Deputy President that she is not making any allegations or seeking orders against Ramsay Professional Services Pty Ltd because she feels safe attending work for Ramsay Professional Services Pty Ltd as a contractor. Ms Earp’s application is focused on her employment with Ramsay Health Care Australia Pty Ltd at the Warners Bay Private Hospital.
Deputy President Saunders makes the following directions to prepare the matter for hearing:
1.By 4pm on 2 November 2022, Ms Earp must file in the Fair Work Commission and serve on Ramsay Health Care Australia Pty Ltd, together with the persons named in Ms Earp’s application (Ms Boyd, Ms Ortiger, Ms Hamilton and Ms Bartlett), all the witness statements, documents and submissions on which she wishes to rely in support of her application.
2.By 4pm on 30 November 2022, Ramsay Health Care Australia Pty Ltd, Ms Boyd, Ms Ortiger, Ms Hamilton and Ms Bartlett must file in the Fair Work Commission and serve on Ms Earp all of the witness statements, documents and submissions on which they wish to rely in opposing Ms Earp’s application.
3.By 4pm on 21 December 2022, Ms Earp must file in the Fair Work Commission and serve on Ramsay Health Care Australia Pty Ltd, together with the persons named in Ms Earp’s application (Ms Boyd, Ms Ortiger, Ms Hamilton and Ms Bartlett), any reply witness statements, documents and submissions on which she wishes to rely in response to the material filed and served by the employer and the persons named.
Deputy President Saunders proposes that the matter be set down for hearing in the Fair Work Commission in Newcastle (3/237 Wharf Road, Newcastle) for 3 days. The proposed hearing dates are 30 January 2023, 31 January 2023 and 1 February 2023. If any party or person named has any difficulty with those proposed hearing dates, they must respond to this email by 4pm on 12 October 2022.
Any party or person named who wishes to seek permission to be represented at the hearing by a lawyer or paid agent must notify the Associate to Deputy President Saunders and file and serve short submissions setting out the basis for the request.
If you have any questions in relation to this matter, please do not hesitate to contact me.
Yours sincerely”
On 22 November 2022, I conducted a directions hearing, after which my Associate sent an email in the following terms to the parties:
“Dear parties
I refer to the directions hearing in this matter before Deputy President Saunders earlier today.
Deputy President Saunders makes the following directions, which amend the directions made on 5 October 2022:
1. By 4pm on 25 November 2022, Ramsay Health Care Australia Pty Ltd and the persons named must file and serve submissions in support of any application any of them wish to make for permission to be legally represented pursuant to s 596 of the Fair Work Act 2009 (Cth).
2. By 4pm on 29 November 2022, Ms Heyworth must file in the Fair Work Commission and serve on Ramsay Health Care Australia Pty Ltd, together with the persons named in Ms Heyworth’s application (Ms Boyd, Ms Ortiger, Ms Hamilton and Ms Bartlett), witness statements made by Ms Brooke Simmonds and Ms Kathy Howden.
3. By 4pm on 2 December 2022, Ms Heyworth must file and serve any submissions she wishes to rely on in opposition to the application by Ramsay Health Care Australia Pty Ltd and/or the persons named to be legally represented.
4. By 4pm on 9 December 2022, Ramsay Health Care Australia Pty Ltd, Ms Boyd, Ms Ortiger, Ms Hamilton and Ms Bartlett must file in the Fair Work Commission and serve on Ms Heyworth all of the witness statements, documents and submissions on which they wish to rely in opposing Ms Heyworth’s application.
5. By 4pm on 9 January 2023, Ms Heyworth must file in the Fair Work Commission and serve on Ramsay Health Care Australia Pty Ltd, together with the persons named in Ms Heyworth’s application (Ms Boyd, Ms Ortiger, Ms Hamilton and Ms Bartlett), any reply witness statements, documents and submissions on which she wishes to rely in response to the material filed and served by the employer and the persons named.
The matter remains listed for hearing in the Fair Work Commission in Newcastle (3/237 Wharf Road, Newcastle) for 3 days on 30 January 2023, 31 January 2023 and 1 February 2023.
Yours sincerely”
On 29 November 2022, Ms Heyworth filed and served witness statements, documents and submissions in support of her Bullying Application.
On 5 December 2022, Ms Heyworth filed a general protections application (not involving a dismissal) in the Commission (GP Claim). In part 2 of her GP Claim, Ms Heyworth sets out the remedies she is seeking, including, amongst other things, orders to retain her employment, compensation for economic and non-economic loss and civil penalties. I have listed the GP Claim for conciliation on 6 February 2023.
On 8 December 2022, Ramsay Health Care terminated Ms Heyworth’s employment.
On 14 December 2022, Ramsay Health Care, Ms Ortiger, Ms Boyd, Ms Bartlett and Ms Hamilton (together, the Respondents) filed and served submissions in support of an application to dismiss Ms Heyworth’s Bullying Application, pursuant to s 587(1)(c) of the Act, on the basis that the Bullying Application has no reasonable prospects of success.
On 16 December 2022, Ms Heyworth filed and served submissions opposing the application to dismiss her Bullying Application.
Summary of Respondents’ submissions
Because Ms Heyworth is no longer employed by Ramsay Health Care and is not working at the Warners Bay Private Hospital, the Respondents submit that there is no risk she could continue to be bullied at work (being the Warners Bay Private Hospital) by a relevant individual or group.
The Respondents submit that the dismissal of Ms Heyworth’s Bullying Application will not prejudice Ms Heyworth’s GP Claim and the remedies she seeks in those proceedings.
It is contended by the Respondents that it would be speculative for Ms Heyworth to assume her GP Claim would succeed or that she would obtain an order for reinstatement in the event she did succeed in the GP Claim. However, in the event both of those outcomes occur the Respondents concede it would be open to Ms Heyworth to make a fresh stop bullying application to the Commission pursuant to s 789FC of the Act.
Summary of Ms Heyworth’s submissions
Ms Heyworth requests that the Commission reject the Respondents’ application to dismiss her Bullying Application on the ground there is a risk that Ms Heyworth will continue to be bullied at work by representatives of Ramsay Health Care and or the individual respondents named in the Bullying Application.
For the purposes of her submissions, Ms Heyworth says that the background of bullying and adverse actions since October 2020 comprise the dispute which was formally raised with her employer on 31 January 2022. It is contended that the dispute includes unresolved grievances, unresolved disputes and individual acts of bullying and/or adverse actions across a period of time.
Ms Heyworth submits that the dispute was commenced and progressed according to the exact steps outlined in clause 2.4 (Grievance and/or Dispute Resolution) of the Ramsay Health Care NSW and Health Services Union NSW Enterprise Agreement 2020 (Ramsay EA).
It is also contended that where additional adverse actions and bullying events have occurred since 31 January 2022 they have been identified in the ongoing dispute resolution process.
Ms Heyworth submits that steps I, II and III of the dispute resolution procedure in clause 2.4 of the Ramsay EA failed to resolve the dispute. It is contended that reasonable attempts to reach resolution were continued as per step IV, including, without limitation, the Bulling Application and GP Claims lodged in the Commission.
In Ms Heyworth’s response dated 7 December 2022 to Ramsay Health Care’s “show cause” letter, the Respondents were reminded of the dispute resolution process which Mr Heyworth contends is underway and the enforcement of “status quo” provision in cl 2.4.5 of the Ramsay EA.
Ms Heyworth contends that Ramsay Health Care failed to act in “good faith” (cl 2.4.4.V) by dismissing her on 8 December 2022. It is submitted that this action is unlawful and contravenes the Ramsay EA and the general protection provisions of the Act. Ms Heyworth says that these matters will be dealt with through separate general protection matters in the Commission.
Ms Heyworth contends that the Respondents assumed her dismissal would automatically end the Bullying Application and did not file or serve witness statements, documents and submissions in accordance with directions made by the Commission in the Bullying Application. That material was due to be filed and served 23 hours after Ramsay Health Care notified Ms Heyworth of her dismissal.
Ms Heyworth submits that under the Ramsay EA it was unfair, unreasonable and unlawful for Ramsay Health Care to dismiss (change the status quo) Ms Heyworth after a dispute had been commenced and before it was resolved.
Ms Heyworth would like the Commission to take into account the unreasonableness and unfairness of a decision to dismiss the Bullying Application, based solely on the outcome of an action contrary to an instrument designed to promote fairness and protection.
Ms Heyworth also requests consideration be given of the case of Jajoo v ING Administration Pty Ltd (C2006/10398) before the Full Bench which, it is contended, sets a precedent for a matter before the Commission to be continued despite the applicant being dismissed.
Ms Heyworth submits that she received a threatening, intimidating, coercive letter from the Ramsay Health Care on 13 December 2022, five days after being dismissed. Ms Heyworth says that this letter, in which Ramsay Health Care notified Ms Heyworth that it would seek a costs order against her if she did not discontinue her Bullying Application after being dismissed, caused her acute psychological distress and adverse physiological symptoms, adding to the cumulative injury caused by other bullying actions by the Respondents.
Ms Heyworth submits that being “no longer employed at Warners Bay Private Hospital” did not protect her from further bullying by Ramsay Health Care in its 13 December 2022 letter and demonstrates the ongoing risk of bullying to her, regardless of her employment status at the Warners Bay Private Hospital.
Ms Heyworth submits that she remains employed (contracted) as a “worker” by the Ramsay Health Care and continues to regularly attend the offices at Ramsay Psychology in Charlestown. Ms Heyworth contends that she works under a contract agreement with Ramsay Psychology with representatives of Ramsay Health Care signing off on this contract.
It is contended that Ramsay Health Care as “employer or principal” handles all of Ms Heyworth’s payments, training, etc and Ms Heyworth is governed by the exact same Ramsay Health Care Code of Conduct etc when she provides services to Ramsay Psychology.
To date, Ms Heyworth submits that she has been led to believe that there is one “employee file/HR file” with Ramsay Health Care that covers her employment and contracts for both the hospital inpatient settings and Charlestown Psychology. It is contended that this can be accessed by the Respondents through human resources and executive management channels.
Ms Heyworth submits that Ms Prideaux, representing Ramsay Health Care and other respondents, submitted the Form F73 in August 2022 on behalf of the individuals named in the Bullying Application who “either are or were engaged by Ramsay Health Care Australia Pty Limited and/or Ramsay Professional Services Pty Limited”.
It is contended that Ms Prideaux confirms in the Response that she represents both of Ms Heyworth’s workplaces and explains the significant connection between those workplaces: “This Form F73 is submitted on behalf of both Ramsay Health Care Australia Pty Limited and Ramsay Professional Services Pty Limited (trading as Ramsay Psychology Services), the former being the employer of the Applicant, the latter being a principal in a contract for services with the Applicant. Ramsay Health Care Australia Pty Limited and Ramsay Professional Services Pty Limited are related entities.”
Ms Heyworth contends that incidents of bullying outlined in her Bullying Application and witness statements occurred in her employment in the Charlestown Ramsay Psychology workplace, by Respondents who worked at Charlestown and also those that did not.
It is submitted that Ms Hamilton recognises and demonstrates the employment connection between the two workplaces, and the authority and power she has in her human resources position at Warners Bay Private Hospital to make statements to Ms Heyworth regarding her ongoing employment in both/either workplaces. For example, in her letter of 25 November 2022, it is stated that “We require your response by 5:00pm Thursday, 1 December 2022 so that we may make arrangements for your return to work. If we do not hear from you by this date, or you continue to decline our offers to return to work with Ramsay, we are likely to write to you to show cause why your employment should not be brought to an end. If this occurs, it would not disturb your current contracting arrangement with Ramsay Psychology at Charlestown.”
Ms Heyworth submits that in Ms Boyd’s April 2022 statement to an external investigator, Ms Boyd confirmed that she did not consider there to be any professional, practical, informal and/or formal boundaries between the workplaces of Warners Bay Private Hospital and Ramsay Psychology Charlestown which would or should inhibit or prohibit her contacting Ms Heyworth at Ramsay Psychology. Ms Heyworth stated that she felt Ms Boyd contacting her at Ramsay Psychology was a breach of confidentiality and Ms Boyd said she would always try other contacts that she had first.
Ms Heyworth contends that cross-referrals are supported between Warners Bay Private Hospital and Ramsay Psychology. Ms Heyworth says that it is usual for her to occasionally be required to speak to the hospital allied health staff or medical staff regarding client care. Ms Heyworth cares for clients in the community who have been and/or will be patients in hospital under the care of one of the Respondents.
Ms Heyworth contends that these multiple legal, formal and informal connections between Warners Bay Private Hospital and Ramsay Psychology, both parts of the Ramsay Health Care Group, place her at risk of further bullying by the Respondents in her ongoing position at Ramsay Psychology.
For the above grounds and reasons, Ms Heyworth submits that the Commission should uphold the Bullying Application at the earliest convenience, in order to get the process back on track quickly and have the matter heard on the scheduled dates in January/February 2023.
Legislative framework
Section 789FF(1) of the Act provides as follows:
“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.”
If there is no risk that a worker will continue to be bullied “at work by the individual or group”, then one of the pre-requisites in section 789FF of the Act for the Commission to be able to make an order to stop bullying will not be satisfied (Atkinson v Killarney Properties Pty Ltd T/A Perm-A-Pleat Schoolwear and Adrian Palm [2015] FWCFB 6503 at [21]).
Consideration
Ms Heyworth’s part-time employment with Ramsay Health Care was terminated on 8 December 2022. As a result of that dismissal, Ms Heyworth no longer works at the Warners Bay Private Hospital and there is no risk that Ms Heyworth will be bullied at work at the Warners Bay Private Hospital.
Ms Heyworth lodged her GP Claim in the Commission shortly before her dismissal. I consider that she is also likely to make a further general protections application (involving a dismissal) following the termination of her employment on 8 December 2022. While it is possible that those proceedings may result in Ms Heyworth obtaining an order for reinstatement or reemployment by Ramsay Health Care, it will be some considerable time before those proceedings are heard and determined. In the event that Ms Heyworth does secure an order (or agreement) for reinstatement or reemployment by Ramsay Health Care and she has a concern about being bullied at work, she may lodge a new application for orders to stop bullying.
Ms Heyworth’s arguments concerning the dispute resolution clause in the Ramsay EA are, with respect, not relevant to the question of whether there is a risk that she will continue to be bullied at work by an individual or group. The Bullying Application filed by Ms Heyworth in the Commission is not a request pursuant to clause 2.4.4IV of the Ramsay EA for the Commission to deal with a dispute in accordance with the dispute resolution clause in the Ramsay EA. The Bullying Application was lodged by Ms Heyworth pursuant to s 789FC of the Act. An application for the Commission to deal with a dispute pursuant to a dispute resolution procedure in an enterprise agreement is made pursuant to s 739 of the Act. Because Ms Heyworth has not made an application for the Commission to deal with a dispute pursuant to the dispute resolution clause in the Ramsay EA, the status quo provision in clause 2.4.5 of the Ramsay EA is not relevant to the Respondent’s application to dismiss the Bullying Application. In any event, even if there was a breach by Ramsay Health Care of the dispute resolution clause, or any other provision, of the Ramsay EA or the general protection provisions of the Act, Ms Heyworth may have a separate cause of action available to her in respect of those matters. They do not, however, have any bearing on whether there is a risk that Ms Heyworth will continue to be bullied at work by an individual or group.
Decisions such as ING Administration Pty Ltd v Jajoo[1] are not relevant to the question of whether the Bullying Application should be dismissed. Those decisions relate to applications under s 739 of the Act by an employee for the Commission to deal with a dispute pursuant to a dispute resolution provision in an enterprise agreement. In circumstances where the employee who has made the application under s 739 of the Act ceases to be employed by the employer after the application is lodged in the Commission, Jajoo and similar cases address the question of whether the Commission continues to have jurisdiction to deal with the matter notwithstanding the dismissal of the employee. Relevant considerations in those cases involve the terms of the dispute resolution procedure in question and s 739 of the Act, not whether there is a risk that the employee will continue to be bullied at work.
There is no dispute that Ms Heyworth continues to work as a contractor for Ramsay Psychology at Charlestown and Ramsay Psychology is part of the same corporate group as Ramsay Health Care. Ms Heyworth has continued to provide psychology services to Ramsay Psychology throughout her disputes with, and leave of absence from, Ramsay Health Care. None of the persons named in the Bullying Application work at the Charlestown facility run by Ramsay Psychology.
Since Ms Ortiger ceased providing psychological services to Ramsay Psychology in about mid-2021 there has been no suggestion that Ms Heyworth has been bullied at work with Ramsay Psychology at Charlestown. This background provides the context for Ms Heyworth agreeing during the conference before the Commission on 5 October 2022 that she “is not making any allegations or seeking orders against Ramsay Professional Services Pty Ltd because she feels safe attending work for Ramsay Professional Services Pty Ltd as a contractor. Ms Earp’s application is focused on her employment with Ramsay Health Care Australia Pty Ltd at the Warners Bay Private Hospital.”[2] Ms Heyworth did not take any issue with those statements when they were confirmed in an email sent to her by my Associate on 5 October 2022.
I do not accept Ms Heyworth’s contention that there are multiple legal, formal and informal connections between Warners Bay Private Hospital and Ramsay Psychology, including, without limitation, that representatives of Ramsay Health Care signed her contract with Ramsay Psychology and authorise payments to her, cross-referrals of clients, and shared human resource files, codes of conduct and policies, that place her at risk of further bullying by the Respondents in her ongoing position at Ramsay Psychology. Her contention in that regard is inconsistent with her agreement on 5 October 2022 not to pursue any claim or relief against Ramsay Psychology in her Bullying Application and her confirmation to the Commission on 5 October 2022 that she feels “safe attending work for Ramsay Professional Services Pty Ltd as a contractor”. Ms Heyworth’s continuation of her psychology services to Ramsay Psychology at Charlestown throughout the whole of the period where she has been absent from work at the Warners Bay Private Hospital[3] further supports the view that her real concern is the risk of bullying while working for Ramsay Heath Care at the Warners Bay Private Hospital. In the event that something happens in the future which causes Ms Heyworth to have a concern about her safety at work as a contractor with Ramsay Psychology, she may have a proper basis to make a new application to the Commission for orders to stop bullying.
As for the letter sent by Ramsay Health Care to Ms Heyworth on 13 December 2022, the letter put Ms Heyworth on notice that Ramsay Health Care would make an application to the Commission for costs in the event that Ms Heyworth decided to oppose the application to terminate her Bullying Application rather than discontinuing the matter. Ramsay Health Care’s conduct in that regard was solely focused on the present proceedings; it did not create a risk, or demonstrate the existence of a risk, that Ms Heyworth would be bullied at work in the future.
Conclusion
Having regard to all the circumstances, I am not satisfied that there is any risk that Ms Heyworth will continue to be bullied at work by an individual or group. It follows that one of the pre-requisites in section 789FF of the Act for the Commission to be able to make an order to stop bullying is not satisfied in this case.[4] I have therefore decided to exercise my discretion pursuant to section 587(1)(c) of the Act to dismiss the Bullying Application on the basis that it has no reasonable prospects of success.
DEPUTY PRESIDENT
[1] [2006] AIRC 773 (PR974301)
[2] See paragraph [15] above
[3] Apart from a short period in January 2022, Ms Heyworth has been absent from her work at the Warners Bay Private Hospital since about April 2021.
[4] Atkinson v Killarney Properties Pty Ltd T/A Perm-A-Pleat Schoolwear and Adrian Palm [2015] FWCFB 6503 at [21]
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