Dr Pushpa Ravi v Baker IDI Heart and Diabetes Institute Holdings Limited T/A Baker IDI Heart and Diabetes Institute

[2014] FWC 7507

[2014] FWC 7507

FAIR WORK COMMISSION

DECISION

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

Dr Pushpa Ravi
v
Baker IDI Heart and Diabetes Institute Holdings Limited T/A Baker IDI Heart and Diabetes Institute; Dr Anne Reutens
(AB2014/116)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 28 OCTOBER 2014

Application for an FWC order to stop bullying; Employee dismissed after application lodged; Application to dismiss because application for order to stop bullying has no reasonable prospect of success; No risk of continued bullying at work; Application to dismiss upheld; Application for order to stop bullying dismissed.

[1] Dr Pushpa Ravi has applied under s. 789FC of the Fair Work Act2009 (the Act) for an order under s. 789FF to stop bullying. At the time of making the application Dr Ravi was employed by Baker IDI Heart and Diabetes Institute Holdings Limited (Baker IDI). On a review of the material that had been filed by the parties, it was apparent to me that before the application could be heard and determined, Dr Ravi’s employment with Baker IDI would end. I convened as short telephone mention of the matter on 25 September 2014 at which time I confirmed with the parties that Dr Ravi’s employment would end on 30 September 2014 and alerted them to the possible effect of the ending of the employment on the application in light of my decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank and Bianca Haines. 1 I allowed the parties time to consider their respective positions and to advise my chambers of their respective positions by 2 October 2014.

[2] On 2 October 2014, Counsel for Dr Ravi advised my chambers that his client sought an adjournment of the application for 10 days in order that she could consult her husband who was then travelling overseas. Later that day Baker IDI indicated that it would apply to have the application struck out. An application to that effect was filed on 6 October 2014. Although the application did not specify the section of the Act relied on or the specific ground on which Dr Ravi’s application should be struck out by reference to the Act, it seems clear enough that the application is for an order under s. 587 that Dr Ravi’s application be dismissed because it has no reasonable prospects of success. On 6 October 2014 I requested that Dr Ravi file in the Commission and serve on Baker IDI submissions in opposition to the application to dismiss made by Baker IDI, by 10 October 2014. Dr Ravi did so.

[3] Baker IDI was permitted to file and serve submissions in reply by 15 October 2014, which it did. The second respondent adopted the submissions of Baker IDI. Dr Ravi filed and served further submissions on 16 October 2014.

[4] Baker IDI’s application for dismissal is made on the basis that Dr Ravi’s application for an order to stop bullying has no reasonable prospects of success. This is so because since Dr Ravi’s employment ended on 30 September 2014 there ceased to be a risk that Dr Ravi will continue to be bullied at work by any individual or group.

[5] In Shaw I briefly discussed the application of s. 587 and the meaning to be ascribed to the phrase “has no reasonable prospects of success”. 2 I adopt what is said in that discussion without repeating it.

[6] On or about 22 September 2011 Dr Ravi accepted an offer of grant specific employment. That is by letter of offer dated 16 September 2011, Baker IDI offered employment to Dr Ravi to commence on 1 October 2011 and to conclude on 30 September 2014, although for service related entitlements, employment pursuant to the offer was deemed to have commenced on 18 April 2011. The letter of offer made clear that the employment would end when the grant funding concluded that being 30 September 2014.

[7] The employment was for a maximum term which ending on 30 September 2014 rather than a fixed term as the employment could be terminated prior to that date upon giving of appropriate notice. However absent an intervening event the employment would end on 30 September 2014. The arrangement under which the employment was governed is described in the offer is a “Grant Specific Employment Agreement”. The grant specific employment agreement was entered into following the completion by Dr Ravi of a one-year employment period with Baker IDI, although the offer of the grant specific employment was described as an offer to ‘renew your contract of employment”.

[8] During a meeting held between Dr Ravi and representatives of Baker IDI on 20 August 2014, confirmation that Dr Ravi’s employment will end on 30 September 2014 was communicated and was subsequently confirmed in a letter dated 22 August 2014. It is not in dispute that Dr Ravi’s employment pursuant to the Grant Specific Employment Agreement has ended and did so on 30 September 2014. It is not disputed that Dr Ravi is no longer employed by Baker IDI and is no longer at the place of work at which the alleged bullying set out in her application occurred.

[9] However in opposing the application for dismissal of Dr Ravi’s application, Dr Ravi submits that the termination of her employment was not as a result of any act, omission or misconduct on her part. Further Dr Ravi submits that given her experience in the research being undertaken by Baker IDI and her familiarity with the patients of Baker IDI, Dr Ravi might be re-employed by Baker IDI in the near future. Consequently so was submitted, these factors distinguish Dr Ravi’s circumstances with those pertaining in Shaw. Upon return to work there would continue to be a risk of bullying of the requisite kind sufficient to support an order of the Commission being made.

[10] Thus, absent a clear statement from Baker IDI that Dr Ravi’s return to work would be resisted and clear and cogent reasons given by it for such a position being taken, the Commission should continue to deal with the application of Dr Ravi and Baker IDI’s application should be dismissed.

[11] For its part, Baker IDI submits that Dr Ravi is no longer employed at Baker IDI, that there is no funding for an additional clinical research coordinator or similar position in another area in Baker IDI and there is no likelihood of the Dr Ravi’s return to work at Baker IDI. To this Dr Ravi says that this submission might represent the position now, however it does not set out the future possibilities and in any event urges that the Commission not dismiss her application and exercise discretion continue to investigate the bullying allegations.

[12] As a matter of fact, the employment of Dr Ravi has ended. Consequently it cannot now be said that there is any risk of bullying of Dr Ravi at work. True it is that one cannot presently know whether Dr Ravi return to work at Baker IDI, but that falls within the realm of speculation not fact. The provisions in the Act which permit the making of an order aimed at stopping bullying conduct are concerned relevantly with an assessment of whether there is a risk that Dr Ravi will continue to be bullied at work by the individual or group that has bullied Dr Ravi at work. Whilst assessing whether there is “a risk” might require a degree of informed speculation, the assessment whether that risk may manifest itself “at work” does not. It is no answer that Dr Ravi may in the future work at Baker IDI, though indications from the respondent are to the contrary. There is simply no proper basis for concluding that Dr Ravi will return to work at Baker IDI and there is a clear statement from her former employer that there is no likelihood of that occurring.

[13] It seems to me clear that as Dr Ravi is no longer employed by Baker IDI and there is no indication nor evidence that she will be employed by Baker IDI in near future or even in the mid term. It cannot be said that Dr Ravi will be able to establish or that I can be satisfied that there is a risk that Dr Ravi will continue to be bullied at work. In the circumstances it seems to me clear that Dr Ravi’s application for an order has no reasonable prospect of success. Furthermore, I am not persuaded that the mere possibility asserted by Dr Ravi that she might return to work at Baker IDI in the future provides a basis for me not to exercise my discretion dismiss Dr Ravi’s application. The prospect of conducting proceedings simply for the purpose of establishing whether bullying occurred without current prospects of an order being made is not in my opinion proper nor in the interests of justice and would be contrary to sound case management principles.

[14] In the event that Dr Ravi obtains employment with Baker IDI in the future and she remains concerned about the risk of continued bullying, a fresh application is not excluded and the allegations of past bullying can be relied upon in support of such an application.

[15] In the circumstances I am satisfied that Dr Ravi’s application has no reasonable prospects of success. I am also satisfied that I should exercise my discretion to dismiss the application for the reasons just given. Dr Ravi’s application is dismissed and order to that effect is issued separately in PR556973.

DEPUTY PRESIDENT

 1   [2014] FWC 3408

 2   Ibid at [8] - [11]

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<Price code C, PR556919>