Application by Subbulakshmi Elangumanian
[2024] FWC 1781
•8 JULY 2024
| [2024] FWC 1781 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Application by Subbulakshmi Elangumanian
(AB2023/354)
| COMMISSIONER LIM | PERTH, 8 JULY 2024 |
Application for an FWC order to stop bullying – whether there is a risk the applicant will continue to be bullied at work – no risk – application dismissed
Introduction
This decision concerns an unfortunate and messy situation involving two families who work at Skeetas Restaurant Pty Ltd (Skeetas).
Mrs Subbulakshmi Elangumanian has applied for anti-bullying orders[1] against three of her co-workers: Mrs Haley Morris, Mr Taj Morris and Mr Dave Morris (Persons Named). Mrs Elangumanian says that the Persons Named have bullied her at work. The Persons Named deny this.
Mrs Elangumanian’s husband, Mr Elangu Iyyapillai, also works for Skeetas. Mr Iyyapillai and Mrs Morris are also Directors of Skeetas. Mr Iyyapillai and Mrs Morris have been negotiating a share buyout for Skeetas since Mrs Elangumanian made this application to the Commission on 13 August 2023.
The Fair Work Commission may make an anti-bullying order if three criteria in s 789FF of the Fair Work Act 2009 (Act) exist. Firstly, a “worker” must have made an application;[2] secondly, the Commission must be satisfied that the worker has been bullied at work by an individual or group of individuals;[3] and thirdly, the Commission must be satisfied there is a risk that the worker will continue to be bullied at work by the individual or group.[4]
The matter was set down for hearing on 23 May 2024 after a series of adjournments.[5] Two important developments occurred before the hearing:
On 12 April 2024, Mrs Morris informed my chambers that the Applicant had commenced full-time employment with the City of Greater Geraldton (City) as a Finance Officer on 18 March 2024. Mrs Elangumanian’s lawyer confirmed this.
On 21 May 2024, Mrs Morris sent Mrs Elangumanian a termination letter. Mrs Elangumanian says that Mrs Morris does not have the authority to end her employment with Skeetas.
Because of these developments, the parties agreed at the hearing to deal with the question of whether there is a risk that Mrs Elangumanian will continue to be bullied at work as a preliminary issue.[6]
Permission was granted to Mr Agnew to represent Mrs Elangumanian and to Mr Heathcote to represent the Persons Named. Mrs Morris, Mrs Elangumanian and Mr Iyyapillai gave evidence.
Having considered the relevant evidence and submissions of the parties, I find that there is no risk that Mrs Elangumanian will continue to be bullied at work. My detailed reasons for my decision follow.
How I assessed the competing evidence
Due to the timing of the developments outlined in [5], the parties gave their evidence viva voce and filed limited documentary evidence on the question of future risk. Because of this, it is appropriate that I comment on how I assessed the competing evidence between Mrs Morris and Mr Iyyapillai, and to a lesser extent, between Mrs Morris and Mrs Elangumanian.
All three have clear self-interest in providing a certain perspective or set of facts in this matter. I have made sure to consider this in weighing up conflicting evidence.
Mrs Morris and Mrs Elangumanian gave their evidence simply and with minimal contradictions. Unfortunately, I cannot say the same for Mr Iyyapillai. Mr Iyyapillai was highly evasive during cross-examination and often gave inconsistent evidence. This negatively affected his credibility.
During Mr Iyyapillai’s cross-examination, I noticed that when Mr Heathcote would ask Mr Iyyapillai questions, Mrs Elangumanian would shake or nod her head, or in some instances, mouth ‘yes’ or ‘no’ to Mr Iyyapillai. Mr Iyyapillai would then answer consistent with Mrs Elangumanian’s actions. One or two instances of this could be seen innocently. However, because of what I observed during the hearing, I went and reviewed the video recording of the hearing in writing this decision. Mrs Elangumanian engaged in this behaviour repeatedly and blatantly over a span of more than 20 minutes during Mr Iyyapillai’s cross-examination. Because of this, I can only reach the conclusion that she was coaching Mr Iyyapillai. This negatively impacted Mrs Elangumanian’s and Mr Iyyapillai’s honesty and credibility.
Because of the above, I have generally preferred the evidence of Mrs Morris where it conflicts with Mrs Elangumanian’s or Mr Iyyapillai’s evidence.
Is there a risk that Mrs Elangumanian will continue to be bullied at work?
3.1 Has Skeetas dismissed Mrs Elangumanian?
How did Mrs Morris and Mr Iyyapillai become Directors?
Mrs Morris’s parents – Mr and Mrs Cox – initially owned and operated Skeetas. Mrs Morris has worked at the restaurant since she was 11 years old. Mr Cox appointed Mrs Morris as the General Manager in 2002.
Mrs Morris’s evidence is that as the General Manager, her role was to run Skeetas’ operations. This included all HR-related functions such as hiring and firing; rostering; and performance management.[7]
Mr Iyyapillai, was employed at Skeetas as a Chef in 2012, and subsequently promoted to Head Chef.[8]
In or around 2021-2022, Mrs Morris approached Mr Iyyapillai about whether he was interested in joining her in effectively buying Skeetas from her parents. Mrs Morris said that she had a good relationship with Mr Iyyapillai, and Skeetas had grown so much that it needed more people involved.[9]
Mrs Morris said that in her discussions with Mr Iyyapillai they agreed to remain in same positions – Mrs Morris as General Manager and Mr Iyyapillai as Head Chef. This agreement to continue with “the recipe that worked”[10] was discussed in front of multiple people such as the accountants, lawyers and bank representatives.[11]
Mr Iyyapillai contested this. He said that what he agreed to was keeping the name of the restaurant the same and not changing the cuisine served.[12] I find that Mrs Morris and Mr Iyyapillai agreed to substantively keep their roles and the business arrangements the same, but that Mr Iyyapillai would be more involved in the running of the business.
In July 2022, Mrs Morris’s parents sold Skeetas by way of an asset sale to a new entity that is owned by two companies. Mrs Morris is Director of one of the controlling companies and Mr Iyyapillai is the Director of the other.
Mrs Morris and Mr Iyyapillai agree that that there is no shareholder agreement or any sort of document that sets out their roles and responsibilities as directors of Skeetas.[13]
Is Mrs Morris the General Manager?
The sale contract contained a term that all existing employees would be offered employment on terms no less favourable than their arrangements at the time.[14] From the evidence, this term was not strictly complied with – the existing employees did not receive written offers of employment. However, Mrs Morris’s position is that the employees transferred over in the same positions they were in before the sale. This means she has continued in her role as General Manager.
Mr Iyyapillai agreed that the position he holds post-sale is the same as the position he held in the pre-sale business.[15] However, he disagreed that Mrs Morris’s position as General Manager continued after the sale.[16] This is contradictory.
I find that Mrs Morris’s position as General Manager did transfer over after the sale of Skeetas.
Did Mrs Morris have the authority to dismiss Mrs Elangumanian?
Mrs Morris says that she has retained the authority to hire and dismiss employees since the sale of Skeetas. During cross-examination, Mrs Morris denied that Mr Iyyapillai has been involved in the hiring of all staff since Skeetas’ sale.[17]
Mrs Elangumanian tendered a termination letter and two employment contracts into evidence.[18] All three documents were executed by both Mrs Morris and Mr Iyyapillai. Mrs Elangumanian relies on them in support of her argument that Mrs Morris and Mr Iyyapillai did employment matters jointly.
Mrs Morris’s evidence is that Mr Iyyapillai specifically requested to be involved in these three matters; they do not indicate an agreement that both directors had to sign off on employment matters.[19]
I accept Mrs Morris’s evidence on this point. The termination letter involves an investigation undertaken by a third party into allegations of sexual harassment. It is not unusual that both Mrs Morris and Mr Iyyapillai would be involved in such a serious matter. The two employment contracts provided are for chef positions. I would expect that as the Head Chef, Mr Iyyapillai would be involved in the hiring of chefs.
I find that Mrs Morris has been running the operations of the business in many respects on her own authority. Since January 2024, Mr Iyyapillai has been engaged full-time at the local TAFE.[20] Mr Iyyapillai says that he has still been involved in Skeetas’ operations outside of his TAFE hours.[21] Even if I accept Mr Iyyapillai’s evidence, it means that for a large portion of Skeetas’ business hours, Mrs Morris is solely responsible for the running of the business.
There was no evidence tendered that Mrs Morris and Mr Iyyapillai had an agreement that they would have to agree on the hiring and firing of staff. I find that Mrs Morris had the authority to deal with employee-related matters by virtue of her continuing position and responsibilities as General Manager.
I find that Mrs Morris did have the authority to dismiss Mrs Elangumanian without Mr Iyyapillai’s input.
3.2 If Mrs Morris did not have the authority to dismiss Mrs Elangumanian, would that change the outcome?
During the hearing, I asked Mrs Elangumanian to give evidence regarding her new employment.[22]
Mrs Elangumanian’s evidence is that she intends to continue in her full-time employment with the City. I asked Mrs Elangumanian how she intends to return to her full-time role with Skeetas given that she is now employed on a full-time basis with the City. Mrs Elangumanian said that she wants to resume working at Skeetas on a part-time or casual basis.
For this to happen, there would need to be a variation to Mrs Elangumanian’s full-time employment contract with Skeetas.
If I had accepted Mrs Elangumanian’s position that Mrs Morris did not have the authority to dismiss her without Mr Iyyapillai’s consent, it follows that Mr Iyyapillai would not have the authority to vary Mrs Elangumanian’s contract without Mrs Morris’s consent. Given Mrs Morris’s evidence that her relationship with Mrs Elangumanian has completely broken down,[23] there would have been no consent to vary Mrs Elangumanian’s contract.
Mr Agnew submitted that Mrs Elangumanian could make an application for flexible working arrangements under s 65B of the Act.[24] I have difficulty with this submission.
Firstly, Mrs Elangumanian has had ample opportunity to apply for a flexible work arrangement, but she has not. Mrs Elangumanian has been certified as fit to return to work at Skeetas since 15 April 2024.[25] Mrs Elangumanian did not act on this; Mr Iyyapillai emailed her on 9 May 2024 to ask her when she would be intending to return to work.
Secondly¸ a request for flexible working arrangements can only be made where the employee meets one of the circumstances[26] in the Act and the request is because of that circumstance.[27] The circumstances for requesting a flexible working arrangement in in s 65B do not include finding new employment.
Mrs Elangumanian could not have returned to her role at Skeetas on a full-time basis because of her new full-time job. She also could not return on a part-time or casual basis without a variation of contract. I find that in these circumstances, even if Mrs Morris did not have the authority to dismiss Mrs Elangumanian, there is no future risk that Mrs Elangumanian will be bullied at Skeetas.
Conclusion
Given my findings above, I order that Mrs Elangumanian’s application be dismissed.
COMMISSIONER
Appearances:
C Agnew, Applicant
S Heathcote for the Respondent
Hearing details
2024.
Perth:
23 May.
[1] Pursuant to the Fair Work Act 2009 (Cth) (Act), s 789FC.
[2] Act, s 789FF(1)(a)
[3] Ibid s 789FF(1)(b)(i).
[4] Ibid s 789FF(1)(b)(ii).
[5] The hearing was initially listed for 29 November 2023. On 29 November 2023, I explored with the parties the possibility of an agreed outcome. This necessitated the hearing being relisted for 18 and 19 January 2024. The hearing was then adjourned until 4 and 5 April 2024 due to extenuating family circumstances for the Persons Named. The hearing was adjourned again at Mrs Elangumanian’s request so that she could attend a psychiatrist to be cleared for work.
[6] Transcript, 23 May 2024, PN137-PN140.
[7] Ibid PN197.
[8] Ibid PN566.
[9] Ibid PN223.
[10]Ibid PN371.
[11]Ibid, PN224.
[12] Ibid PN554.
[13] Ibid PN556.
[14] Exhibit 3, Sale of Business Agreement: “Skeetas Restaurant & Café”, clause 12.1
[15] Transcript PN612.
[16] Ibid PN613-PN618.
[17] Ibid PN309.
[18] Exhibit 3.
[19] Transcript PN440-PN446.
[20] Ibid PN665.
[21] Ibid PN526-PN534.
[22] Act, s 590.
[23] Transcript PN253-PN254.
[24] Ibid PN871; PN882.
[25] Supplementary DCB, page 25, WorkCover WA Progress Certificate of Capacity 15 April 2024.
[26] Act, s 65(1A) “Circumstances”: the employee is pregnant; the employee is the parent or has the responsibility for the care, of a child who is school age or younger; the employee is a carer; the employee has a disability; the employee is 55 or older; the employee is experiencing family and domestic violence; the employee provides carer or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experiencing family and domestic violence.
[27] Act, s 65(1)(b).
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