Dr Anupam Sharma v Rohan Lawson, Vet Partners Australia Pty Ltd

[2022] FWC 2310

[2022] FWC 2310

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.789FC—Application for an order to stop bullying

Dr Anupam Sharma
v

Rohan Lawson, Vet Partners Australia Pty Ltd

(SO2022/119)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 5 SEPTEMBER 2022

Application for an FWC order to stop bullying

1. VetPartners Australia Pty Ltd operates, in partnership with veterinary professionals, several clinics and animal hospitals relevantly in Victoria. Dr Anupam Sharma was, between 10 October 2021 and 25 January 2022 engaged by VetPartners at one of its veterinary hospitals, the Pet Emergency and Specialist Centre (PESC), in Malvern East in the State of Victoria as a locum veterinarian. Under the engagement Dr Sharma would receive regular shifts and in respect of each shift she worked, Dr Sharma would charge an hourly rate and GST.

1. On 6 March 2022 Dr Sharma filed an application pursuant to s.789FC of the Fair Work Act 2009 (Act) for orders to stop bullying at work. The application alleged that bullying occurred in the course of Dr Sharma’s engagement with VetPartners during the period 11 December 2021 and continuing for a period beyond the end of her engagement at PESC. Rohan Lawson is identified by Dr Sharma as a person she says bullied her at work. Mr Lawson was during the relevant time, VetPartners’ General Manager for PESC across Australia. [1]

1. Before turning to consider the facts underpinning the allegations of bullying conduct, it is convenient to say something about the statutory scheme under which this application is commenced. In large measure this is necessary because neither party paid any or little attention to the statutory scheme.

1. The Commission’s power to make a stop bullying order is enlivened if the circumstances in s.789FF of the Act exist. Section 789FF sets out three conditions which must be satisfied before the discretion to make an order may be exercised by the Commission. First, a “worker” must have made an application under s.789FC of the Act. Second, the Commission must be satisfied that the worker has been bullied at work by an individual or a group of individuals. Third, 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.[2]

1. Where the power is enlivened, the Commission 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.

1. A “worker” for the purposes of Part 6-4B of the Act is defined in s.789FC(2) as having the same meaning as ascribed to it in the Work Health and Safety Act 2011 (WHS Act) but it does not include a member of the Defence Force. Section 7 of the WHS Act defines a “worker”, relevantly as follows:

(1)A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as:

(a) an employee; or

(b) a contractor or subcontractor; or

(c) an employee of a contractor or subcontractor; or

(d) an employee of a labour hire company who has been assigned to work in the person’s business or undertaking; or

(e) an outworker; or

(f) an apprentice or trainee; or

(g) a student gaining work experience; or

(h) a volunteer; or

(i) a person of a prescribed class.

1. An applicant under s.789FC may only be a “worker” who “reasonably believes that he or she has been bullied at work”. “Reasonable belief”, “reasonably believes” and similar expressions are used in many statutory contexts and in the common law. Generally, the requirement that a person “reasonably believes” that a state of affairs exists or has occurred has two elements. The person must actually and genuinely hold the belief, and the belief held must be reasonable in the objectively sense – there must be some objectively ascertainable fact or facts to support the belief or some other rational basis for the holding of the belief. A person will not hold a reasonable belief if the belief held is irrational or absurd.[3]

1. The meaning of “bullied at work” is set out in s.789FD of the Act as follows:

789FD  When is a worker bullied at work or sexually harassed 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.

(2A)  A worker is sexually harassed at work if, while the worker is at work in a constitutionally‑covered business, one or more individuals sexually harasses the worker.

(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.

1. As should be evident, the bulling behaviour about which a worker complains must occur while the worker is “at work in a constitutionally-covered business”. The expression “constitutionally-covered business” is explained in s.789FD(3) of the Act reproduced above and requires, inter alia, that a “person conducts a business or undertaking” within the meaning of the WHS Act. Also required, to satisfy the definition “constitutionally-covered business”, is that the person conducting the business or undertaking be of one of the types set out in s.789FD(3)(a), or that the business be conducted principally in any of the types of locations specified in s.789FD(3)(b). The issue of when a worker is “at work” in a constitutionally-covered business was considered in Bowker v DP World Melbourne Limited & Ors[4] in which a Full Bench concluded:

“[48] We have concluded that the legal meaning of the expression ‘while the worker is at work’ certainly encompasses the circumstance in which the alleged bullying conduct (ie the repeated unreasonable behaviour) occurs at a time when the worker is ‘performing work’. Further, being ‘at work’ is not limited to the confines of a physical workplace. A worker will be ‘at work’ at any time the worker performs work, regardless of his or her location or the time of day. As we have mentioned, the focal point of the definition is on the worker (ie the applicant). The individual(s) who engage in the unreasonable behaviour towards the worker need not be ‘at work’ at the time they engage in that behaviour.

[49] While a worker performing work will be ‘at work’ that is not an exhaustive exposition of the circumstances in which a worker may be held to be at work within the meaning of s.789FD(1)(a). For example, it was common ground at the hearing of this matter that a worker will be ‘at work’ while on an authorised meal break at the workplace and we agree with that proposition. But while a worker is on such a meal break he or she is not performing work. Indeed by definition they are on a break from the performance of work. It is unnecessary for us to determine whether the provisions apply in circumstances where a meal break is taken outside the workplace.

[50] In our view an approach which equates the meaning of ‘at work’ to the performance of work is inapt to encompass the range of circumstances in which a worker may be said to be ‘at work’.

[51] It seems to us that the concept of being ‘at work’ encompasses both the performance of work (at any time or location) and when the worker is engaged in some other activity which is authorised or permitted by their employer, or in the case of a contractor their principal (such as being on a meal break or accessing social media while performing work).

. . .

[53] In most instances the practical application of the definition of ‘bullied at work’ in s.789FD will present little difficulty. But there will undoubtedly be cases which will be more complex, some of which were canvassed during the course of oral argument. For example, a worker receives a phone call from their supervisor about work related matters, while at home and outside their usual working hours. Is the worker ‘at work’ when he or she engages in such a conversation? In most cases the answer will be yes, but it will depend on the context, including custom and practice, and the nature of the worker’s contract.”[5]

1. A worker at work in a constitutionally‑covered business is bullied if an individual or a group of individuals repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member. An “individual” and by extension “a group of individuals” when used in an enactment is a reference to a natural person, not a body politic or corporate, unless a contrary intention is indicated.[6] There is nothing in s.789FD or in any provision of Part 6-4B which suggests a contrary intention such that bullying at work is something which can be engaged in by a juristic person such as a corporation. Consequently, the bulling behaviour with which Part 6-4B is concerned, is confined to behaviour by a natural person or a group of such persons. An individual or group of individuals engaging in the unreasonable behaviour need not themselves be workers. They may, for example, be customers of the business or undertaking in which the worker bullied works. The statutory provisions do not contain any requirement for the individual or group of individuals to be ‘at work’ at the time the individual engages, or group of individuals engage in the unreasonable behaviour which the worker contends is bullying.[7]

1. Part 6-4B of the Act is relevantly concerned with repeated unreasonable behaviour not a singular instance of it. The requirement to establish that an individual or group of individuals ‘repeatedly behaves’ unreasonably suggests the existence of persistent unreasonable behaviour but might refer to a range of behaviours over time.[8] As the word “repeatedly” makes clear, there must be more that once instance of unreasonable behaviour. Beyond that however, there is no requirement that a specific number of instances of unreasonable behaviour be shown, nor that the behaviour which is said to be unreasonable be the same behaviour in each instance.[9] Unreasonable behaviour is behaviour that a reasonable person, having regard to the circumstances, would consider to be unreasonable.[10] The assessment is an objective one.

1. The expression “repeatedly behaves unreasonably” is found in s.789FD(1)(a) of the Act, which is a definition provision, and its function is not to enact substantive law, but to aid in construing the statute. The expression is not to be interpreted in isolation by giving a meaning which negates the evident policy or purpose of a substantive enactment in Part 6-4B.[11] As Hatcher VP pointed out in Mac v Bank of Queensland Limited and Others[12]:

“. . . Part 6-4B has the evident purpose of establishing a mechanism by which the bullying of workers at work may be stopped. In interpreting, and applying, the expression “repeatedly behaves unreasonably” as it appears in s.789FD(1)(a), the concept of repeated unreasonable behaviour is not to be approached in a manner which divorces it from that purpose. The subject matter is bullying at work, and that must be borne steadily in mind in any consideration as to whether particular behaviours are unreasonable for the purpose of s.789FD(1)(a). A consideration of unreasonable behaviour which loses sight of the objective and subject matter of Part 6-4B may lead to the provisions not achieving their intended purposes, or being used for a purpose that was not intended.”[13]

1. In Mac, the Vice President also made some useful observations about the word “unreasonable” and its use in Part 6-4B, and which I gratefully adopt, as follows:

[90] The second observation is that unreasonableness and its converse, reasonableness, are familiar legal concepts applicable in a range of diverse contexts. In Giris Pty Ltd v Federal Commissioner of Taxation Windeyer J said: “It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law...”. Where, in an anti-bullying case such as this one, the requisite repeated unreasonable behaviour towards the workers is said to be constituted by or include unreasonable discretionary managerial decisions directed to that worker, some useful guidance may be obtained in assessing whether the definitional standard in s.789FD(1)(a) is met from decisions concerning judicial review of administrative discretionary decision-making. In Minister for Immigration and Citizenship v Li the High Court considered the standard of unreasonableness applicable to such decision-making. The plurality (Hayne, Kiefel and Bell JJ), in considering the well-known formulation of unreasonableness stated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation, said that the legal standard of unreasonableness “should not be considered as limited to what is in effect an irrational, if not bizarre, decision - which is to say one that is so unreasonable that no reasonable person could have arrived at it”. They concluded their analysis by saying: “Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”. That formulation provides a useful yardstick for the application of the provision in a case such as this one.

[91] The third observation is that in order for conduct to be reasonable, it does not have to be the best or the preferable course of action. In Bropho v Human Rights & Equal Opportunity Commission, in interpreting the word “reasonably” as it appeared in s.18D of the Racial Discrimination Act 1975 (Cth), French J (as he then was) said:

“[79] ... It imports an objective judgment. In this context that means a judgment independent of that which the actor thinks is reasonable. It does allow the possibility that there may be more than one way of doing things ‘reasonably’. The judgment required in applying the section, is whether the thing done was done ‘reasonably’ not whether it could have been done more reasonably or in a different way more acceptable to the court.”[14] [Footnotes omitted]

1. The behaviour which a worker contends is unreasonable must be established. That is, the Commission must be satisfied that the behaviour alleged occurred. And then it must assess whether the behaviour as established was objectively unreasonable having regard to the subject matter and object of Part 6-4B of the Act. The instances of established unreasonable behaviour, must as I have earlier indicated, be repeated but the precise character or form of the behaviour need not.

1. Once this is established, it is next necessary to consider whether the unreasonable behaviour “creates a risk to health and safety”. Self-evidently there must be established a causal link between the behaviour and the risk to health and safety, but the behaviour need not be the sole cause of the risk, merely a substantial cause.[15] A risk to health and safety connotes the possibility of danger to health and safety – the exposure to the chance of injury or loss but one which is real and not merely conceptual.[16] Actual harm, illness, injury or detriment need not be shown.[17]

1. Finally, I should observe that reasonable management action, such as reasonable performance management, disciplinary action, allocation of work, restructuring of the workplace or employer directions, each carried out in a reasonable manner cannot be bullying conduct as self-evidently if the action taken is both reasonable and carried out in a reasonable manner it will not be “unreasonable behaviour”. In any event s.789FD(2) says as much for the avoidance of doubt.

1. Turning then to the case at hand, there is no dispute, and I am satisfied that between 10 October 2021 and 25 January 2022, Dr Sharma was a worker engaged by VetPartners to work in a constitutionally‑covered business operated by VetPartners.

1. Dr Sharma makes three allegations of unreasonable behaviour engaged in by Mr Lawson.

1. The first concerns the cancellation of six shifts for which Dr Sharma had been engaged on 15 October 2021 to work at VetPartners PESC in Malvern East between late December 2021 and early January 2021 – the Christmas/New Year holiday period.[18] Dr Sharma was notified of a roster change involving cancellation of some shifts by email from Aaron Laws, VetPartners’ Business Manager, on 9 December 2021. Subsequently, Mr Lawson took a decision to close the Malvern PESC for the entire Christmas/New Year holiday period – 22 December 2021 to 5 January 2022 inclusive.[19] The decision was communicated to Dr Sharma by Mr Laws at Mr Lawson’s request on or about 20 December 2021[20] (First Incident).

1. The second concerns the ending of the relationship between VetPartners and Dr Sharma on 25 January 2022.[21] By email dated 25 January 2022, Mr Laws wrote to Dr Sharma in the following terms:

“At this stage Vet Partners believes there to be a conflict in accepting any further locum arrangements between PESC and yourself. Therefore, at present we will no longer be offering any further locum shifts” (Second Incident).

1. The third concerns the lack of response to emails Dr Sharma sent to “several management staff” between 11 and 17 December 2021 requesting clinical information and a copy of VetPartners antibullying policy and to emails sent by Dr Sharma to various of VetPartners personnel, after she had been advised on 25 January 2022 that VetPartners will no longer be offering any further locum shifts, in which she sought an explanation of the “conflict” identified in the email earlier reproduced, including an explanation of the reasons for the decision not to offer Dr Sharma further locum shifts[22] (Third Incident).

1. Before dealing with each incident, it is first necessary to consider whether Dr Sharma “reasonably believes that ... she has been bullied at work”. To the extent that Dr Sharma has, in her materials and oral evidence, identified instances of behaviour constituted by actions or inactions of Mr Lawson and others which she says have caused her detriment and severe anxiety and stress, I am satisfied that her belief that she has been bullied at work (save for the matters the subject of the second part of the Third Incident) is reasonable in the sense that the belief has some rational basis to support it and is not entirely irrational, absurd or ridiculous. Dr Sharma has thus made an application under s.789FC as required by s.789FF(1)(a).

1. It is convenient to begin with the Third Incident. As to the second part of the Third Incident, it is uncontroversial that Dr Sharma sent various email requests for information about the “conflict” (and sought an explanation of the reasons for the decision not to offer her further locum shifts) and that there was a failure by the persons to whom those emails were directed to respond or to promptly respond. It is also not controversial that this conduct or behaviour, which forms the second part of the Third Incident, happened at a time after the relationship between VetPartners and Dr Sharma to provide locum service at PESC had ended. Dr Sharma accepted that she was not at work when this part of the Third Incident behaviour about which she complains occurred.[23] Therefore this behaviour directed to Dr Sharma is incapable of being characterised as Dr Sharma having been “bullied at work” within the meaning of s.789FD(1) of the Act. It must also be said that Dr Sharma knew or ought reasonably to have known at the time she made this application that this behaviour did not happen at work, as the relationship had ended before the behaviour happened. She knew the relationship had ended because she lodged an unfair dismissal remedy application in relation to the ending of the relationship – a matter which is the subject of a separated decision.[24] On this basis I am not satisfied that at the time she made this application Dr Sharma reasonably believed that she has been bullied at work to the extent the conduct complained of included the behaviour just discussed.

1. As to the first part of the Third Incident, Dr Sharma sent an email on 11 December 2021 to Jen Chandler and Rohan Shroff with copies to Mr Laws and Ricci Trower all of whom were at the relevant time employees of VetPartners. The subject line of the email is “Feedback”. About four minutes later Dr Sharma forwarded the email to most of the same recipients to whom the earlier email had been sent but omitting Mr Shroff and including Mr Lawson as a recipient. The text of the second email reads: “[s]orry everyone. [Name redacted] was advised by [name redacted], [name redacted] and [name redacted] to nurse”. The text of the first mentioned email was as follows:

Hello everyone,

In light of a few events in the past couple of weeks, I feel compelled to reach out and provide feedback asap in order to address a few things urgently.

Please allow me to list a few things:

1. On Wednesday 8th Dec 2021 [name redacted] the animal attendant was asked to nurse and help recover surgery patients that were transferred to ICU.
- [name redacted] felt overwhelmed
- [name redacted] is not a trained nurse
- [name redacted] mentioned she was asked to do so by [name redacted], [name redacted], and one other person.

2. On Wednesday 8th Dec 2021 [name redacted] asked [name redacted] to write up a surgery report for a patient [name redacted] when she wasn’t even in the building at the time.
- [name redacted] declined and was subsequently called “negligent” by Dr [name redacted]
- [name redacted] also bullied her by pulling rank and stating that he is a specialist
- [name redacted] did the same thing to me in 2013/14
- What is your workplace anti-bullying policy?

3. [Name redacted] is continuing to nurse for [name redacted], holding instruments for him in surgery without scrubbing in
- [name redacted] wears scrubs when in hospital and cleans, and then walks straight into surgery without a change of clothes or appropriate surgery apparel and assists in surgeries
4. Resistant infections
- We have had a significant number of cases with resistant infections at PESC
- This is not news, it has been the case since 2013/2014 when I first worked here
- It is [name redacted]’s as well as Vet Partners’ responsibility to address this situation and get the lab involved to have the hospital swabbed and decontaminated accordingly
- Do you have any plans at this stage to address this situation as this is not just an animal welfare issues, but also an OHS issue?

5. [Name redacted]
- On Friday 10th Dec [name redacted] anaesthetised, and conducted a CT/Myelogram on [name redacted] on his own without a nurse monitoring the patient
- Patient was not warmed during the anaesthetic and as such was hypothermic during recovery in ICU (Temperature of 34.4)
- The patient was non surgical and was then sent home without any information on physiotherapy for recovery from neurological issues
- A timeline for progress was not given to O
- ICU had to handle the discharge
- With any myelogram patient their head should be elevated and they are meant to be on seizure watch post procedure - this is ignored by surgical department

6. Pre-GA blood work is not done routinely on surgical patients, inducing older patients that have a higher anaesthetic risk and may be compromised due to other factors (eg heart murmur)

7. PESC has an unfavourable reputation within the veterinary industry due to [name redacted].
- I can’t work out what’s worse - the complete apathy with regards to animal welfare at the hands of surgical department, or Vet Partners’ acceptance of this as ‘normal'.
- I have worked with most of the current PESC ICU crew at other hospitals and I have never seen them so defeated - Nothing has changed since 2013/14 and it will not change until [name redacted]’s hand is either forced, or he is removed
- Animals are suffering and dying, and it is difficult to come in to work and be faced with that every single day. It’s exhausting and it’s cruel.
- More good people will leave your employment if these matters are not addressed urgently

8. From a business point of view I understand surgeons bring in a lot of money however I am sure we can find a surgeon that is both skilful and ethical
- Moreover, [name redacted]’s behaviour and reputation is losing you money everyday. More vets would refer to us if it were not for him, and we would lose less staff as a result
- Many who have resigned recently would be happy to return if [name redacted] did not work here

9. We need lights at the treatment tables in ICU because we do a lot of our minor procedures at the ICU tables

10. We really need to sort out label printers in ICU. There is one in pharmacy and it is temperamental and is literally falling to pieces.

I really hope things can be addressed as soon as possible. There is is (sic) much potential at PESC. We need adequate support from senior management. We need to take action to improve our level of care towards patients and other staff.

I look forward to hearing from you by Friday 17th Dec 2pm. If you have any further queries please do not hesitate to contact me. [Underlining added]

1. I have taken the step of redacting the names of individuals mentioned in the emails as a matter of fairness to those individuals because Dr Sharma makes allegations against an individual and makes complaints on behalf of individuals who otherwise are not named in the application, did not participate in the hearing and were not given an opportunity to comment on the matters raised in the email.

1. On 17 December 2021, Dr Sharma sent an email to Mr Laws with copies to Ms Chandler, Mr Lawson, Ms Trower and added Dr Whan, noting that she had not received a response to her earlier email and requested that she be provided with a response by 2:00 pm on Monday, 20 December 2021. In her application Dr Sharma only identifies Mr Lawson as the individual whom she says bullied her at work. Dr Sharma does not cite the failure to respond to her 11 December 2021 email as an instance of bullying in her application. This appears for the first time in the material she filed in support of application pursuant to directions that I made on 28 March 2022. In any event it is not correct that there was no response. On 13 December 2021 Mr Laws sent an email to Dr Sharma in which he thanked her for her feedback and indicated that Ms Chandler had asked Ms Stewart and Dr Whan to respond to her feedback. From 13 December 2021 it should have been apparent to Dr Sharma that Mr Lawson would not respond to her feedback since others had been assigned the task of doing so. Putting to one side whether the failure to respond to email feedback and to a request for certain information could be regarded as unreasonable behaviour in the context of an application for an order to stop bullying, Mr Lawson’s failure to respond thereafter could on no view be said to be unreasonable. This is all the more so since the original email providing the feedback was not even sent to him and he was only added as a recipient in the second of the two emails sent by Dr Sharma on 11 December 2021.

1. Moreover, on 18 December 2021, Dr Whan sent an email to Dr Sharma in the following terms:

Apologies that you did not receive a response to your email prior to yesterday. Were you involved in the group discussions held at PESC by Jo this week?

As I am sure you can appreciate the issues raised are not just a simple fix and will require ongoing commitment from all who work at PESC. In terms of timeline I am meeting to discuss a clinical pathway forward with both Chris and Bron this coming week, and then there will be wider team involvement in those discussions from early Jan.

All of the clinical points in your email have been noted and are addressed in the clinical plan.

1. It seems to me that this is a perfectly reasonable and adequate response to the myriad of issues that Dr Sharma raised in her 11 December 2021 email. I should add that the import and effect of Dr Sharma’s “feedback” seems to have obtained an importance in hindsight that perhaps was not there at the time of writing. This is evident from the email Dr Sharma sent to Mr Laws of 10 December 2021 the day before the feedback email. In her 10 December 2021 email which is dealing with changes to her roster about which she had earlier received advice, Dr Sharma says “I will be writing an email to higher management and will include you in it. It will be an all-encompassing email regarding my experience at PESC in the last month or so. There have been some great moments, and some not so great. Nothing to worry about. Just my observations and some feedback.” [Underlining added]

1. The only matter which did not need to await the discussions foreshadowed in the 18 December 2021 email from Dr Whan is a response to Dr Sharma’s question in her 11 December 2021 email – “[w]hat is your workplace anti-bullying policy?”

1. Dr Sharma made the request about the policy, not because she was concerned about any conduct directed towards her, but because she says that she witnessed conduct which might amount to bullying conduct on or about 8 December 2021.[25] There is no dispute that Dr Sharma was not provided with a copy of VetPartners’ workplace anti-bullying policy or similar document. But how Mr Lawson is responsible for this escapes me. For the reasons earlier stated the responsibility for responding to the matters raised by Dr Sharma in her 11 December 2021 email was assigned to others as the email from Mr Laws of 13 December 2021 makes clear. Therefore, Mr Lawson did not engage in any unreasonable behaviour by not providing Dr Sharma with a copy of VetPartners’ workplace anti-bullying policy. There is no allegation that those assigned responsibility to respond to Dr Sharma’s 11 December 2021 email engaged in bullying conduct. And VetPartners is not, for the reasons earlier discussed, an individual or group of individuals capable of engaging in unreasonable behaviour directed to Dr Sharma in the context of Part 6-4B of the Act.

1. Moreover, as I have earlier set out, in assessing whether behaviour constituting an allegation of bullying is unreasonable regard must always be had to the subject matter and object of Part 6-4B of the Act. The features of behaviour that one might expect to find in a course of repeated unreasonable behaviour constituting bullying at work, include (but without limitation), behaviour such as: intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination,[26] and to adopt more contemporary parlance, “gaslighting”. Also included might be unjustified management action such as discipline and otherwise justified management action but implemented or undertaken in an unreasonable manner. The failure to provide Dr Sharma with a copy of its policy hardly has the ring of unreasonable behaviour in the context of an allegation that she has been bullied at work, particularly given the circumstances in which the policy was sought. It is relevant that Dr Sharma does not make any request for a copy of the policy after her reminder email of 17 December 2021. It does not appear to me to be a matter which Dr Sharma regarded as significant. This is also evident from the content of her 11 December 2021 email which concerns clinical practice generally and the clinical practice of a particular individual. That does not mean that the failure to provide Dr Sharma with a copy of the policy was in all respects entirely beyond criticism or that it constituted the best practice in light of the size of VetPartners as an organisation.

1. For all of these reasons I am not persuaded that the conduct the subject of the first part of the Third Incident was unreasonable behaviour much less it was behaviour engaged in by Mr Lawson, the only individual said to have engaged in bullying conduct.

1. Returning then to the First Incident, which as I earlier set out involves an allegation that Mr Lawson unreasonably cancelled shifts which Dr Sharma had agreed to work as a locum during the Chrismas/New Year period at short notice. For the following reasons I do not consider the behaviour attributed to Mr Lawson of cancelling the shifts at short notice was unreasonable behaviour.

1. First, Dr Sharma was engaged as a locum providing veterinary services for which she charged a fee plus GST on apparently a contract for services basis rather than employment. There is insufficient material before me to conclude one way or the other whether Dr Sharma was in fact an employee rather than an independent contractor, but even if she was an employee, the relationship was no more than a casual employee relationship since Dr Sharma was free to accept or reject any offer to work a shift. In the result both on a fee-for-service engagement or a casual engagement, a cancellation of shifts before they are worked is within the contemplation of either engagement, and I dare say, is commonplace in such arrangements.

1. Secondly, all of the shifts that Dr Sharma had agreed to work during the Christmas period were not cancelled at short notice, only some were. As I earlier noted, Dr Sharma was notified of a roster change involving cancellation of some shifts by email from Mr Laws, VetPartners’ Business Manager on 9 December 2021. Mr Laws set out the reason for the decision, that is, one of “chronic shortage of staff at PESC”. Dr Sharma responded the following day by email to Mr Laws in which she said “I believe the closure is a good idea and provides your staff the support they need right now, given everyone is spread so thin. I think this is the safest thing to do.”

1. Thirdly, Mr Lawson in his evidence explained the rationale for the decision to close PECS during the Christmas/New Year period as follows:

We struggled with opening – it’s meant to be a 24-hour facility but due to the global shortages of vets, we struggled to open the facility 24 hours and that’s right across our entire industry. PESC, in particular, we had a significant amount of staff turnover.  We had several key management staff that were off on extended leave.  Some were stress leave.  We had an exit of quite a few vets and we would traditionally make a roster for four weeks out but the nature of the business we started rostering shorter weeks, sometimes up to a fortnight.  And while we may have communicated to Dr Sharma on 9 December regarding the opening hours for over the Christmas/New Year period, that was based on the staffing that we had confirmed at that point in time.  Subsequent to that email being sent, we had quite a few staff members that came down with COVID or staff members cancel shifts or staff members who resigned.  We found ourself (sic) in a position where we had little to no staff to provide appropriate levels of service to our clients and patients alike and, hence, we needed to cancel.  While we had cancelled certain - we had intended on closing on certain days, the remaining public holidays we had to make a difficult decision and that's the first time that particular hospital has been closed on public holidays in 13 years of operation.  So it wasn't an easy decision but we simply did not have the staff and the rates that Dr Sharma was charging us was significantly higher than what other vets were charging us, so we completed a financial analysis as to what the return would be to the business with Dr Sharma and the reduced staff members that we had, and from a financial perspective it wasn't viable for us to open the services due to the significant labour costs we were going to incur and those – every public holiday was going to be run at a significant loss so we made the difficult decision of closing the hospital.[27]

1. This evidence is not seriously challenged and there is no evidence to contradict it. I accept Mr Lawson’s evidence as to the reasons for the closure of PECS over the Christmas/New Year period. The decision seems to me to be a reasonable business and economic decision in the circumstances which was open to Mr Lawson to make even though it had a potential economic impact on Dr Sharma, but as earlier indicated that would necessarily flow because of the nature of the relationship and in and of itself does not make the conduct or behaviour unreasonable.

1. Fourthly, although Dr Sharma contends that she suffered some significant economic loss which was said to have caused her stress this was not quantified and, in any event, it does not seem consistent with the email that Dr Sharma sent to Mr Laws on 22 December 2021 the text of which is set out below:

Just emailing to ensure that I no longer have any shifts at PESC. I no longer have access to the roster and I don’t know if apart from the public holidays I was rostered on for any other shifts in between.

If I still have shifts rostered on, please note that I am unavailable as I have acquired work elsewhere over the Christmas and New Year’s period.”

1. That leaves the Second Incident. Even if it can be established that the Second Incident involves unreasonable behaviour on the part of Mr Lawson, it would, having regard to the discussion above, be a single instance of unreasonable behaviour and could not by itself constitute or support a finding that Dr Sharma has been bullied at work for the reasons I have earlier explained. It is therefore strictly not necessary to deal with the conduct alleged but since it was raised, I will make the following observation. The Second Incident is, at its heart, an expression of dissatisfaction about the reason given by VetPartners for the termination of the engagement and nothing more. Dr Sharma was engaged as a locum veterinarian which means that she was engaged as a person who stands in temporarily in the profession, usually for someone else in the same profession. The concern relates to the reason articulated, that of “conflict”. The allegation of bullying is made against Mr Lawson. Mr Lawson gave the evidence:

I want to clarify, you mentioned that on 25 January you received an email regarding a conflict.  My understanding, that forms a basis of the allegations against me for stop bullying.  I wasn’t aware of any such conversation taking place.  I wasn’t aware of any such email being sent to you.  The only time that I was aware that there was a conflict was when it was escalated to me a few weeks later. It was escalated to me from a notification process only. I wasn’t a part of that conversation . . .[28]

1. Mr Lawson was not challenged about this evidence during cross-examination nor was any evidence led to contradict Mr Lawson’s evidence. I accept his evidence. Since Mr Lawson did not articulate the reason for ending the relationship nor was he aware that that was a reason communicated to the applicant it can hardly be said that Mr Lawson engaged in unreasonable conduct as alleged by Dr Sharma.

1. For the reasons given I am not persuaded that Dr Sharma was bullied at work with the consequence that the application for a stop bullying order must be dismissed. I would also add that even if some of the behaviours alleged were established as bullying conduct there would be no prospect of an order being made in circumstances where I could not be satisfied that there is a risk that Dr Sharma will continue to be bullied at work and by Mr Lawson. This is because Dr Sharma’s engagement with VetPartners ended on 25 January 2022, and Dr Sharma acknowledges in answer to question 7 in her application that she does not work or interact with Mr Lawson at work. There is also no evidence that there is any likelihood of Dr Sharma resuming a relationship with VetPartners which may involve some contact with Mr Lawson. There thus cannot be any risk that Dr Sharma will continue to be bullied at work by Mr Lawson since she is not at work, has not been at work since 25 January 2022, and is not likely to be at work in circumstances where the relevant risk might properly arise.

1. For the reasons given Dr Sharma’s application for a stop bullying order must be dismissed.

Order

1. I order that the application by Dr Anupam Sharma pursuant to s.789FC of the Fair Work Act 2009 for orders to stop bullying at work (SO2022/119) be dismissed.

DEPUTY PRESIDENT

Appearances:

Dr A Sharma on behalf of herself
Ms A Doney on behalf of VetPartners
Mr R Lawson on behalf of himself

Hearing details:

2022
Melbourne with video link to Sydney and Brisbane
10 June

[1] Transcript PN 223

[2] Mac v Bank of Queensland Limited and Others[2015] FWC 774 at [75]

[3] Ibid at [79]

[4] [2014] FWCFB 9227

[5] Ibid [49]-[54]

[6] Acts Interpretation Act 1901, s 22 (as in force on 25 June 2009; see Fair Work Act 2009, s 40); the current iteration of the Acts Interpretation Act 1901 is to the same effect; see s 2B

[7] Bowker v DP World Melbourne Limited & Ors [2014] FWCFB 9227 at [31]

[8] Re SB[2014] FWC 2104 at [41]; Mac v Bank of Queensland Limited and Others[2015] FWC 774 at [88]-[89]

[9] Ibid

[10] Re SB[2014] FWC 2104 at [43]; Mac v Bank of Queensland Limited and Others[2015] FWC 774 at [88]-[89]

[11] Mac v Bank of Queensland Limited and Others[2015] FWC 774 at [89]; Kelly v R (2004) 218 CLR 216 at [84] and [103]

[12] [2015] FWC 774

[13] Ibid at [89]

[14] Ibid at [90]-[91]

[15] Re SB[2014] FWC 2104 at [44]; Mac v Bank of Queensland Limited and Others[2015] FWC 774 at [93]

[16] Re SB[2014] FWC 2104 at [45]; Mac v Bank of Queensland Limited and Others[2015] FWC 774 at [93]

[17] Mac v Bank of Queensland Limited and Others[2015] FWC 774 at [94]

[18] Transcript PN47

[19] Transcript PN 238

[20] Transcript PN239-PN240

[21] Transcript PN48

[22] Transcript PN50

[23] Transcript PN51-PN61

[24] Dr Anupam Sharma v VetPartners Australia Pty Ltd[2022] FWC 907

[25] Transcript PN 64 – PN 68

[26] See Mac v Bank of Queensland Limited and Others[2015] FWC 774 at [99]

[27] Transcript PN 238

[28] Transcript PN 247

Printed by authority of the Commonwealth Government Printer

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