Azadeh Shams
[2023] FWC 1836
•26 JULY 2023
| [2023] FWC 1836 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Azadeh Shams
(AB2023/216)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 26 JULY 2023 |
Application for an order to stop alleged bullying – allegations of bullying untested - Applicant not currently fit to return to the workplace or perform work - Commission not satisfied on the evidence that there is a risk that the Applicant will be continued to be bullied at work by named individuals when she is not fit to return to work – Full Bench decision in Mekuria v MECCA Brands Pty Ltd [2019] FWCFB 2771; (2019) 289 IR 105 applied - application dismissed.
Introduction
The Applicant, Ms Azadeh Shams, has filed a Form F72 stop 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, Mastercard Loyalty Solutions Pty Ltd (Mastercard), and two individuals (being supervisors of the Applicant when she was at work) employed by Mastercard.
After an unsuccessful conciliation conference conducted to resolve the Application, I requested that the Applicant clarify as to the basis upon which the Application ought proceed in circumstances where she is unfit to return to the workplace or perform any work, and there is no medical evidence as to a likely (let alone specific) date that she will be fit to return to the workplace or otherwise perform any work.
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 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[1], Vice President Hatcher (as he then was) 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.”[2]
Further, in Mekuria v Mecca Brands Pty Ltd[3] (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).”[4]
Consideration
Both the Applicant and the individual respondents are employed by the same constitutionally-covered business (i.e. Mastercard).[5] The Applicant is a “worker” within the meaning of s.789FC(2) of the Act, and her allegations as to bullying concern alleged conduct towards her when she was “at work”. It is apparent that the Applicant holds a “genuine belief” that she has been bullied at work (s.789FC(1)).
The Respondents totally deny that the Applicant has ever been bullied at work. The Respondents say that the performance management of the Applicant throughout the two years, 2020 to 2022, and the written correspondence and communications with the Applicant regarding her performance issues, and the placement of her on a performance improvement plan, were reasonable management action carried out in a reasonable manner.[6]
The issue of whether or not the Applicant has been bullied at work has not been subject to a contested hearing before me. There can be no findings in this decision made one way or the other.
It is not in dispute that the Applicant is currently unfit to return to work, and has been unfit for over 12 months. The Applicant says that she is keen to return to work once her health improves, but has not provided any medical evidence as to when that will occur. The Applicant has asked that her Application be placed on hold, or left in abeyance, pending the resolution of her disputed claim for worker’s compensation, and pending her being in a position to be fit to return to work.[7] The Applicant’s claim for worker’s compensation has been denied by the insurer. The Applicant is formally disputing that ruling with the Worker’s Compensation Commission.
By way of email dated 21 July 2023, Mr Nathan Roberts, legal representative for the Respondents, states:
“As the FWC has identified this morning, “applications for an FWC stop bullying order” under section 789FC can result in orders under section 798FF but the FWC is expressly precluded from making any orders for compensation or any other pecuniary amounts. The suggestion that these proceedings may prejudice [the Applicant’s] workers compensation entitlements is therefore misconceived.
[The Applicant’s] application is bound to fail as (i) the impugned conduct was reasonable management action conducted in a reasonable way and not bulling, and (ii) there is no risk of any bullying continuing given that [the Applicant] has not attended work in over 12 months, is not currently fit to attend work and there is no indication as to whether and, if so, when [the Applicant will] return to work.”
The Applicant has submitted that there is no requirement under the Act for her to be fit for work to make or maintain a stop bullying application. Even accepting that submission, it is not on point. In order to be satisfied that relief ought be granted, the Commission must be satisfied that there is a real risk that an applicant will be bullied at work. There can be no utility to a finding that an employee has been bullied at work in circumstances where no relief can be granted because the employee will not be attending or performing any work at an employer’s workplace because the employee is not fit to do so.
In the circumstances, I do not consider that there is evidence that there is a risk that the Applicant will continue to be bullied at work, when she is not at work, because she is not fit to attend work. Equally, I do not consider it fair and just for the Commission and the Respondents to essentially be left in abeyance whilst everyone awaits updates or other advice from the Applicant going forward as to her fitness, and/or the status or progress of her disputed worker’s compensation claim.[8] Should the Applicant become fit to return to work, there is of course nothing stopping her from making a fresh stop bullying application (i.e. there can be no prejudice to the Applicant in having her Application dismissed, whilst she sorts out her disputed worker’s compensation claim and/or her fitness to return to work, in circumstances where she can simply make a fresh application at the relevant (and a more appropriate) time).
Disposition
Given that I have not found, on the evidence before me as at the date of this decision, that there is a ‘risk’ that the Applicant will continue to be bullied at work, I dismiss her Application. An order to this effect will be published contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
Mr Artur Stewart, Solicitor, appeared for the Applicant.
Mr Nathan Roberts, Partner, McCullough Robertson lawyers, appeared for the Respondents.
[1] [2015] FWC 774.
[2] Ibid, at [75].
[3] [2019] FWCFB 2771; 289 IR 105.
[4] Ibid, at [29]. Section 789FF of the Fair Work Act 2009 has not relevantly changed as a result of the amendments arising from the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021.
[5] As defined by s.789FD(3)(a)(i) of the Fair Work Act 2009.
[6] Form F73, Annexure A, paragraph [19].
[7] Emails from Mr Artur Stewart, Solicitor for the Applicant, dated 20 July 2023 (5:00pm) and 21 July 2023 (3:47pm).
[8] Ms Shams (Applicant) lodged a Workers Compensation claim in July 2022. Following investigation, the insurer has determined that Ms Shams is not entitled to workers compensation for her alleged injury.
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