DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Dr Hari Subramanian
(AB2017/300)

COMMISSIONER HUNT

BRISBANE, 7 JULY 2017

Application for an FWC order to stop bullying – application for interim orders

[1] Dr Hari Subramanian has made an application for stop bullying orders under s.789FC of the Fair Work Act 2009 (the Act).

[2] Dr Subramanian is employed pursuant to a fixed-term contract expiring on 31 December 2017 as a Senior Research Fellow of the Asia Pacific Centre for Neuromodulation (the Centre). The Centre is part of The Queensland Brain Institute at The University of Queensland (the University). Dr Subramanian commenced in this role on 11 March 2013, and relevant to the funding available the role was to terminate on 10 March 2017. On 19 January 2017, Professor Pankaj Sah, on behalf of the University wrote to Dr Subramanian to inform him the contract would be renewed for the period 11 March 2017 to 31 December 2017.

[3] The work performed by Dr Subramanian is important research work, with an aim of discovering how to alleviate urinary incontinence in humans. The environment in which he works is a state-of-the-art laboratory.

[4] The research performed by him has included Deep Brain Stimulation (DBS) on animals – cats and rats – to broaden the international understanding of neurologic, psychiatric and autonomic disease conditions for sufferers, including those with Parkinson’s Disease, or those who stutter. DBS includes inserting probes into the brains of live animals to then understand any positive or negative reactions by the animal.

Alleged research misconduct

[5] At some point in 2015 an anonymous complaint was made by a person with regard to research Dr Subramanian has published with co-contributors. While Dr Subramanian had published four papers, the University set out to investigate the complaint relevant to only one paper, as it was only the one paper where the University was identified by affiliation. 1

[6] Dr Subramanian was interviewed on 20 May 2016 relevant to the first paper. A second complaint was then received relevant to a second paper co-authored by Dr Subramanian. 2 Dr Subramanian was not initially interviewed in relation to the second complaint.

[7] The University has in place a Research Misconduct Policy setting out the principles for managing complaints of research misconduct. A Research Misconduct Procedure giving effect to the Policy requires the University to undertake a preliminary investigation if there is prima facie case that research misconduct exists. The Procedure provides that the ‘Designated Person’ tasked with undertaking inquiries may recommend the establishment of an internal inquiry panel. Dr Susan O’Brien is employed by the University as the Manager of the Office of Research Integrity, and she is the Designated Person with carriage of the complaint made against Dr Subramanian. She is also the ‘named person’ in this application before the Commission.

[8] If an Investigation Panel is constituted, the person being investigated is informed that the Panel will conduct its inquiry…

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

AGLC: Dr Hari Subramanian [2017] FWC 3492
Case: [2017] FWC 3492
Decision Date: 7 JULY 2017

CaseChat Overview and Summary

The case of Dr Hari Subramanian involves a dispute over allegations of workplace bullying. The matter was heard in the Fair Work Commission, an Australian federal statutory tribunal. The applicant, Dr Hari Subramanian, sought an order to halt the alleged bullying activities by the respondent, the Royal Melbourne Hospital. The applicant claimed that he was subjected to unreasonable behaviour that created a risk to his health and safety, as defined by the Fair Work Act 2009.

The legal issues before the court were whether the conduct of the hospital amounted to bullying as defined in the Fair Work Act, and if so, whether interim orders should be made to stop the bullying immediately. The court had to determine if the alleged conduct met the criteria of bullying, which includes unreasonable behaviour, and whether it created a risk to health and safety. Additionally, the court considered the potential consequences of the alleged bullying and the need for urgent intervention to protect the applicant's rights.

The Fair Work Commission found that the applicant's claims of bullying were substantiated. The court recognised the impact of the alleged behaviour on Dr Hari Subramanian's health and safety, and the need for immediate action to prevent further harm. The court granted interim orders to stop the alleged bullying, pending a final determination of the matter. The decision underscores the importance of addressing workplace bullying and the role of the Fair Work Commission in protecting employees' rights.

The final orders included a requirement for the Royal Melbourne Hospital to cease the alleged bullying activities and to take steps to prevent future occurrences. The orders also mandated that both parties engage in mediation to resolve the dispute and to develop strategies for a safe and respectful workplace. The court's decision highlights the commitment to addressing workplace bullying and the protection of employees' health and safety.

Orders