Application by Kama Jennings

[2019] FWC 8609

[2019] FWC 8609

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.739—Dispute resolution

Application by Kama Jennings
(AB2019/661)

COMMISSIONER CIRKOVIC MELBOURNE, 19 DECEMBER 2019

Application for orders to stop bullying – application for interim orders.

Introduction

[1] On 19 November Ms Kama Jennings (“the Applicant”) lodged an application for orders to stop bullying under s.789FC of the Fair Work Act (“the Act”). The employer is Intereach Limited (“the Respondent”) and the persons against whom bullying is alleged are Ms Michelle Kelly, Ms Keryn Fox, Ms Kylee Caruso and Ms Pat Fogarty.

[2] I conducted a conference between the parties on 13 December 2019, which failed to resolve the matter.

[3] On 18 December 2019, the Applicant’s representative emailed my chambers as follows:

“This matter was set and heard at conciliation on Friday 13 December 2019 before Commissioner Cirkovic.  Immediately prior to this conciliation the Respondent sent the Applicant a letter requesting she show cause for her employment.  The Applicant sought that her matter be set for hearing.  The Respondent would not provide the undertaking not to terminate her employment until such hearing. 

The Applicants seek an urgent hearing to be held over the phone for this afternoon or Thursday.

The basis for this request is that the Applicant has been asked to provide her response by no later than 1pm Friday 20 December 2019.  The Applicant believes that her employment will be terminated as a result. 

The Applicant wishes to seek interim orders preventing termination.”

[4] I listed the application for interim orders for hearing at 1.00pm on 19 December 2019.

[5] The Applicant was represented by the Australian Municipal, Administrative, Clerical and Services Union and the Respondent was granted permission to be represented by its lawyers.

[6] At the hearing the Applicant’s representative confirmed the order sought would be that: “any disciplinary action including termination of employment be postponed until the matter can be determined.”

[7] The Respondent objected to the order being issued.

[8] The Applicant Ms Jennings gave evidence in the form of a witness statement and was cross-examined by the Respondent’s representative. The Applicant also tendered four witness statements which were accepted into evidence. Given that these witnesses were not called to give evidence and were not available for cross-examination, I agree with the Respondent that little weight should be attributed to the content of their statements.

[9] Ms Yvette Bahagiar, General Manager Projects – Change Management of the Respondent gave evidence for the Respondent in a witness statement and was cross-examined by the Applicant’s representative.

[10] For the following reasons I have determined to dismiss the Applicant’s application for an interim order.

[11] In coming to my conclusion, I have considered the entirety of the written and oral submissions of both the Applicant and the Respondent.

Jurisdiction

[12] There is no contest between the parties that the Commission has jurisdiction to make an interim order under s.589 in the course of a proceeding under s.789FC of the Act.

The application for an interim decision

[13] Section 589 of the Act provides as follows:

“589 Procedural and interim decisions

(1) The FWC may make decisions as to how, when and where a matter is to be dealt with.

(2) The FWC may make an interim decision in relation to a matter before it.

(3) The FWC may make a decision under this section:

(a) on its own initiative; or

(b) on application.

(4) This section does not limit the FWC’s power to make decisions.”

The principles to be applied to an interim decision

[14] The principles relevant to the making of interim orders are well established. 1 In summary, the Commission must determine if there is a serious issue to be determined and where the balance of convenience lies, having regard to the nature of the substantive application, the jurisdictional context in which the application is being considered, and the circumstances of the parties.2

[15] In Australian Manufacturing Workers’ Union v WW Wedderburn Pty Ltd, 3 Gooley DP made the following comments when dealing with an application for interim orders:

“[5] The AMWU submitted that in deciding whether to issue an interim order, the Commission must determine if there is a serious issue to be tried and balance of convenience.

[6] These principles were discussed by Bromberg J in Quinn v Overland where His Honour said:

“[45] In determining an application for interlocutory relief, the Court addresses two main inquiries. First, whether the applicant has made out a prima facie case in the sense that if the evidence remains as it is, there is a probability that at the trial of the action the applicant will be held entitled to relief. Second, whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted: Australian Broadcasting Corp v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at [65], [19].

[46] The requirement of a “prima facie case” does not mean that the applicant must show that it is more probable than not that the applicant will succeed at trial. It is sufficient that the applicant show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights the applicant asserts and the practical consequences likely to flow from the order the applicant seeks. In that context there is no objection to the use of the phrase “serious question” to convey the strength of the probability: Australian Broadcasting Corp v O’Neill per Gummow and Hayne JJ at [65]-[72], Gleeson CJ and Crennan J agreeing at [19].”

[7] S.589(2) of the Fair Work Act 2009 gives the Commission power to make an interim decision. S.598(4) of the Act provides that a decision that is described as an order must be made by order. An example is given in a note and it refers to a decision that is described as a bargaining order.”

[16] The potential application of interim orders in the anti-bullying jurisdiction was discussed by Commissioner Hampton in D.K as follows: 4

“[18] This involves the consideration as to whether a prima facie case (or a “serious question” to be tried) has been made out by the applicant and whether the inconvenience or injury which the applicant would be likely to suffer if an interim order were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted (the balance of convenience). Further, the nature of the remedy provisions of s.789FFof the Act should inform the consideration of the request for interim orders and the nature of any discretion to be exercised. However, the purpose of the interim orders, including to preserve the capacity to advance the substantive application in appropriate circumstances, must also be considered.

[19] In addition, given the scheme of the Act, interim orders of the nature being considered here should not be issued lightly. The direct intervention of the Commission at such an early stage of proceedings should be exercised with considerable caution. Further, the mere indication that a disciplinary process was involved in the complaints of workplace bullying, without much more, is unlikely to trigger the balance of convenience necessary for such action. Each application must be considered in its own right and circumstances.

[20] I would also respectfully observe that the earlier approach adopted by Gostencnik DP in Worker A, B, C, D and E v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and others, where interim orders were made in a s.789FC anti-bullying application to prevent the escalation of probable bullying conduct, is also consistent with the general approach adopted to these matters.”

(footnotes omitted)

[17] I have adopted an approach consistent with the above decisions.

Grounds of the application

[18] The grounds of the application for interim orders are set out in the email of the Applicant’s representative dated 18 December 2019, as set out below.

“The basis for the contentions of the Applicant is as follows:

1. It is the position of the Applicant that the continued disciplinary process, constitutes bullying by management. Given that this claim, if backed by evidence, would constitute bullying in breach of the Act, the Respondent should be prevented from terminating the employment of the Applicant as this would necessarily defeat this application.

2. The Applicant is currently on workers’ compensation with 15 hours a week capacity for work.  The Respondent has been found liable for her injury.  The Applicant is not the first employee to be on workers’ compensation due to the bullying at work. 

3. The allegations raised date from mid-2018 to April 2019 and were not raised with the Applicant in the correct procedure up until she was due to return to work. 

4. These allegations are as a result of the Applicant raising a grievance about her colleague, who has a personal relationship with the CEO and has since acted in a way to terminate the Applicant’s employment, which has occurred on several occasions.

5. Please see attached statement from the Applicant and witnesses regarding the cullying [sic] behaviour at Intereach.”

Serious issue to be determined

[19] In support of its position that there is a serious issue to be determined in this matter, the Applicant submits:

•  the Respondent has a significant culture of bullying;

•  a number of its key staff have been bullied by the CEO Ms Fox and the Senior Manager Finance Ms Kelly;

•  the workplace culture was one involving “excessive drinking” and “talking in a sexual way” at social events and other events;

•  the Applicant has been “singled out” in being investigated by the Respondent;

•  the investigation against the Applicant was commenced in response to the Applicant’s complaint against Ms Kelly, with whom Ms Fox has a “personal relationship”; and

•  the continuing disciplinary process involving the Applicant constitutes bullying.

[20] The Respondent submits:

•  its actions constitute reasonable management action and there is no serious question to be tried;

•  it reasonably conducted its investigation into the 16 allegations of sexual misconduct against the Applicant; and

•  its investigation into the allegations of misconduct against Ms Kelly, which were found to be unsubstantiated, was conducted reasonably.

[21] In support of the above submissions, Ms Bahagiar gave comprehensive evidence as to the chronology of the Respondent’s investigations into both the complaints of misconduct against the Applicant and those against Ms Kelly. By and large this evidence was uncontested save for the assertion by the Applicant’s representative that some of the allegations of misconduct occurred in the context of social events and a culture of workplace drinking and “talking in a sexual way”. Ms Bahagiar also gave evidence that in her view, the Respondent investigated the Applicant’s conduct due to complaints made about her conduct and not for any other reason.

[22] The chronology of the material before me is largely uncontested and is as follows. On 28 April 2019, the Respondent received a complaint against the Applicant. 5 On or around 24 June 2019, the allegations were investigated by an external human resources (HR) business, Total HRM.6 On 21 June 2019, the Applicant made a complaint against Ms Kelly, which was also referred by the Respondent to its external investigators Total HRM.7 On or around 1 July 2019, the Applicant submitted a worker’s compensation claim and the Respondent deemed it inappropriate to continue with the investigation involving the Applicant as the Applicant’s certificate of capacity indicated that she had no capacity for work.8

[23] On 20 August 2019, the complaint against Ms Kelly was found to be in the most part unsubstantiated. 9 It is uncontested that on or around 15 October 2019, the Applicant received a certificate of capacity indicating capacity for some form of employment of five hours a day, three days a week.10 On 6 November 2019, the Respondent wrote to the Applicant setting out details of the allegation against her.11 In that correspondence, the Respondent advised the Applicant that the investigation process had resumed and that the serious nature of the allegations led to the Respondent’s decision to suspend her employment with pay while the investigation continued. On 19 November 2019, the Applicant made her application for an order to stop bullying.

[24] Between 19 November 2019 and the hearing of this matter, the parties liaised with a view to the Respondent providing limited undertakings as to the taking of disciplinary action against the Applicant in the form of terminating her employment. 12

[25] On 5 December 2019, Total HRM provided a report to the Respondent indicating that 14 of the 16 allegations were substantiated, and a copy was provided to the Applicant. 13 On 12 December 2019, the Applicant provided a response to the report.14 On 13 December 2019, the Respondent wrote to the Applicant advising that it was considering terminating her employment due to the substantiated allegations, and providing her with an opportunity until 20 December 2019 to respond to its show cause letter.

[26] What is evident from the above material is that various allegations about the Applicant have been investigated by Total HRM and preliminary adverse findings have been made by the investigator. The Applicant was given an opportunity to provide her views on the preliminary findings and did so by letter dated 12 December 2019, and has until 1.00pm tomorrow to respond to the show cause letter issued by the Respondent on 13 December 2019. It is also apparent from the material that the Applicant has been stood down on full pay (taking into account the worker’s compensation payments).

[27] Although the s.789FC application raises various allegations, the investigation referred to above, and related disciplinary actions, are central to those allegations.

[28] On the material before me, I am not satisfied that the s.789FC application has prima facie merit and there is a sufficient likelihood of success to justify the preservation of the status quo pending further consideration and determination of the substantive matter by the Commission. I have not reached any concluded view about the matters beyond the prima facie consideration required at this point. I have also taken into account that there are several features of the investigation and the preliminary findings that would objectively suggest that the process was procedurally fair. In my view, the chronology of events as outlined in the largely uncontested evidence of Ms Bahagiar is indicative of a reasonable course of management action. That said, the Applicant has failed to demonstrate there is a sufficient likelihood of success in her application for orders to stop bullying to justify the issue of interim orders.

Balance of convenience

[29] The Applicant submits that the balance of convenience favours the issuing of an order for the following reasons:

•  if the order is not granted, the Applicant’s employment is likely to be terminated on 20 December 2019;

•  the Applicant is a single mother with three children;

•  there are not many work opportunities in the town in which the Applicant resides;

•  the town is “close knit” which has consequences for the Applicant’s reputation; and

•  if the Applicant’s employment is terminated and she makes an unfair dismissal application, she would be unlikely to be reinstated and compensation would not be an adequate remedy given that the Applicant would potentially be without work for an extended period of time but would need to continue to support her household.

[30] The Respondent submitted that the balance of convenience favoured the dismissal of the interim order for the following reasons:

•  the sexual nature of the allegations against the Applicant present a strong reputational risk to the Respondent if they are discovered by the community, that being of a country town as opposed to a metropolitan centre;

•  the Respondent’s situation is unique as a provider of services to vulnerable members of society, in particular minors, in a regional geographic location;

•  the chronology of the matter supports the dismissal of the application for interim orders;

•  the allegation of bullying is separate to the investigation into the Applicant’s conduct;

•  if the Applicant’s employment is terminated the Applicant would have recourse to other claims such as unfair dismissal and general protections; and

•  the antibullying jurisdiction is not to be used to circumvent the employer’s right to take legitimate disciplinary action against its employees.

[31] The Respondent also took me to several authorities, including Bayly. 15 The Respondent submitted that I ought to distinguish that case because it involved a disciplinary process which was far less advanced than that in relation to the Applicant, which is near its conclusion, findings having been made and a show cause letter having been issued.

[32] I also note that in Bayly, the Applicant was medically unfit for work such that she was unable to participate meaningfully in the investigation process. That is not the case before me. As discussed above, it is uncontested that the Respondent suspended its investigation relating to the Applicant’s conduct whilst the Applicant was medically unfit for work. Upon her return to work, the Applicant was able to participate in the process of the investigation and, with the assistance of her representative, did so.

[33] In coming to my conclusion I am mindful that the Commission should exercise considerable caution in determining whether to issue interim orders of this kind and that it is undesirable to permit the antibullying jurisdiction to be used to circumvent reasonable disciplinary action.

[34] I have taken the submissions of both parties into account. What is clear is that, as a result of the prerequisites of s.789FF of the Act, the dismissal of the Applicant would significantly compromise, and potentially deny, her capacity to have the s.789FC application heard and determined. This is a significant factor directly relevant to the balance of convenience and the exercise of any discretion.

[35] However, there are a range of other competing considerations arising from the potential prejudice to the Respondent that I have also taken into account. These include that an interim order would have the effect of creating an obligation upon the Respondent to continue the Applicant’s employment pending further developments, when in the normal course it would be open to dismiss her, subject to various notice and other obligations. Further, the Applicant has a number of claims she could pursue if the Respondent were to terminate her employment. Ultimately I am not persuaded that the balance of convenience favours the Applicant in this case.

Conclusion

[36] For the preceding reasons, as a matter of discretion I have decided to dismiss the application for an interim order.

[37] I will separately issue an order vacating the interim order I issued earlier today which preserved the status quo pending the hearing of this interim order application.

COMMISSIONER

Appearances:

Ms G Meredith, for the Applicant

Mr A Colquhoun, for the Respondent

Hearing details:

2019

19 December 2019

Melbourne, in chambers.

Printed by authority of the Commonwealth Government Printer

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 1   Australian Manufacturing Workers’ Union v WW Wedderburn Pty Ltd[2016] FWC 2260, (2016) 258 IR 12, citing Quinn v Overland [2010] FCA 799.

 2   Bayly [2017] FWC 1886.

 3   [2016] FWC 2260, (2016) 258 IR 12.

 4   [2018] FWC 6691.

 5 Witness Statement of Yvette Bahagiar [12].

 6 Ibid [17].

 7 Ibid [19].

 8 Ibid [24].

 9 Ibid [26].

 10 Ibid [38].

 11 Ibid [42].

 12 Ibid [51].

 13 Ibid [53].

 14 Ibid [62].

 15   Bayly [2017] FWC 1886