Azadeh Shams - [2023] FWC 1836

[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)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FWC 1836
Decision Date: 26 JULY 2023

CaseChat Overview and Summary

Azadeh Shams applied for an urgent order to prevent alleged bullying at work, which the Commission was required to consider. The applicant claimed to have suffered from bullying by her employer and certain employees, leading to her inability to return to work. The Commission, however, was tasked with determining whether the applicant was currently fit to return to work and whether there was a risk of continued bullying if she were to return. Additionally, the court needed to assess whether the application should be dismissed based on the evidence presented.

The Commission considered the application in light of the Full Bench decision in Mekuria v MECCA Brands Pty Ltd. The applicant had not provided sufficient evidence to demonstrate that she was currently fit to return to work or that there was a risk of continued bullying. The Commission found that the applicant's claims of bullying had not been tested and there was insufficient evidence to establish a risk of continued bullying. Consequently, the Commission dismissed the application, noting that the applicant was not currently fit to return to work and that there was no evidence to support a risk of continued bullying. The decision was in line with the principles established in the referenced Full Bench case.

The court's reasoning was based on the lack of evidence provided by the applicant to substantiate her claims of ongoing bullying and her fitness to return to work. The Commission held that without such evidence, it could not grant the relief sought by the applicant. The Commission's decision was thus grounded in the absence of sufficient evidence to support the applicant's claims. In light of these findings, the application was dismissed.

Orders