Emmelline Snow

[2017] FWC 6910

[2017] FWC 6910

FAIR WORK COMMISSION

DECISION

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

Emmelline Snow
(AB2017/654)

COMMISSIONER HAMPTON ADELAIDE, 22 DECEMBER 2017

Application for an FWC order to stop bullying – preliminary issue – request for interim orders – principles considered – significant undertaking provided by employer – balance of convenience against making interim orders – liberty to apply granted – matter assigned to Member for conference to be conducted.

1. Introduction

[1] On 12 December 2017 Ms Emmelline Snow made an application for stop bullying orders under s.789FC of the Fair Work Act 2009 (the Act). The application alleges various elements of bullying conduct by a Team Leader and Employee Relations Specialist at Flight Centre Travel Group Ltd T/A Flight Centre (Flight Centre) in Brisbane where Ms Snow is employed as an International Travel Consultant. Flight Centre and the named individuals are collectively the respondents in this matter.

[2] The s.789FC application includes contentions that after raising an issue with Human Resources regarding rates of pay and hours of work, the applicant was subject to unreasonable behaviour including the removal of her access to Eftpos and email facilities and various other accreditations used by travel consultants, threats of written warnings for vexatious reasons, disparaging the applicant in front of customers and staff and being singled out for unfavourable treatment.

[3] The respondents have opposed the s.789FC application and contend, amongst other matters, that the removal of Eftpos and email facilities represented reasonable management actions taken in a reasonable manner given Ms Snow’s absence from work. The respondents also deny that any conduct has taken place that would constitute relevant bullying behaviour within the meaning of the Act. The respondents deny that the applicant has been issued with a written warning, formal disciplinary action or formal performance management action. Rather, the respondents contend that Ms Snow has been issued with a Notice of Meeting to discuss an allegation that she failed to follow a reasonable management action when refusing to undertake some work as directed in the immediate period leading up to her announced absence. The applicant has been on leave since this time and this meeting has yet to take place.

[4] On 14 December 2017, and before the respondents had provided responses to the application, Ms Snow sought an interim order, in effect, on the basis that such would prevent the respondents from continuing with any disciplinary action pending the determination of the substantive anti-bullying application. In particular that:

● Flight Centre including but not limited to the named persons stop the specified behaviour; in this case adverse action, and reinstate Cybersource, emails and accreditations to allow me to return to work.
     ● That no further disciplinary action be taken about the current matter or new matters until the outcome of the application.
     ● Regular monitoring of behaviours by Flight Centre;
     ● Compliance with our workplace bullying policy;
     ● The provision of information and additional support and training to workers in HR and in the call centre.” 1

[5] During the course of the hearing of this application, Ms Snow confirmed that the “interim” orders sought mirror those being pursued by her as part of her substantive application.

[6] I note also, as part of the context for this matter, that Ms Snow has lodged a general protections claim under the Act with the Federal Circuit Court and has sought an interim order in that matter. This is apparently listed for initial hearing in February 2018. Further, Ms Snow has made a claim for workers compensation associated with her present absence from the workplace under the relevant Queensland legislation and this has been initially declined. Ms Snow has sought a review of that decision and whether the claim for lost wages arising as part of that claim will ultimately be determined within the Queensland workers compensation system.

[7] Given the nature of the request for interim orders, I listed and heard that element expeditiously. The respondents had provided their formal responses to the s.789FC application (and the interim order request) by that time.

[8] At the outset of proceedings, I confirmed that whatever the outcome of the request for interim orders, the s.789FC application would be referred to a Brisbane based Member of the Commission to conduct a substantive in-person conference involving all parties in late January or very early February 2018.

2. The application for an interim decision

[9] Section 589 of the Act provides as follows:

“589 Procedural and interim decisions

(1) The FWC may make decisions as to how, when and where a matter is to be dealt with.

(2) The FWC may make an interim decision in relation to a matter before it.

(3) The FWC may make a decision under this section:

(a) on its own initiative; or

(b) on application.

(4) This section does not limit the FWC’s power to make decisions.”

[10] The application for interim orders was made under s.589(2) of the Act and its grounds were as follows:

"● I am employed by Flight Centre.

● On 12 December 2017 I filed a stop bullying application.

● In that application, I allege bullying at work against the respondents, including that the disciplinary action commenced on or about 10 October 2017 is itself behavior that constitutes bullying at work.

● I have been certified as unfit for work ongoing from 10 October to current. I have been diagnosed with Anxiety due to but not limited to these actions. One of the main triggers of the anxiety and what is most preventing me from returning to work is the detrimental action of removing my ability to quickly take small payments for sales, with a program called Cybersource, which puts me at a severe disadvantage compared to other staff, and as my calls take much longer, reduces the amount of money I can make, and I am sometimes forced to tell a customer I am not able to use the regular tool and apologise that the process takes much longer with me when they have complained about how long it took.

● (SD) sent an email invitation to me on or about 10 October requesting a meeting for the next day. Simon indicated that the purpose of that meeting was to instigate disciplinary proceedings in regards to me not following a management direction (even though the direction was intended to prevent me from being able to go on stress leave) and determine the employment and disciplinary outcomes of this meeting.

● I believe that the outcome will be that my employment is terminated or adversely affected.

● I have made requests to both (JR) and (KP) for an undertaking that Cybersource be reinstated, emails and accreditations be reinstated and that they not take any further disciplinary action, nor bully or take any further adverse action against me so that I can return to work.

● I have not had any positive responses to these requests.” 2

[11] During the course of the hearing of this matter, Ms Snow contended that she was being prejudiced by her absence from work, including through the loss of pay, and that the making of the interim orders would allow her to return to work. In relation to the respondents’ requests for further medical information given the present absence, Ms Snow also indicated that her treating medical practitioner had informed her that it was not necessary or reasonable to provide further details of her medical condition or the circumstances under which it would be safe to return to work.

[12] Ms Snow also contended that the interim order should be made as it would ensure that she was able to continue to have the s.789FC application determined on its merits. That is, if she could not be dismissed, there would be no barrier to her application being dealt with on its merits.

[13] In reply to the respondents’ position, Ms Snow contended that they were not, in effect, opposed to the matters she had sought, and as a result, the interim orders should be made to formalise the requirements.

3. The respondents’ opposition to any interim orders

[14] Mr Rogers, Flight Centre’s Employee Relations Specialist who appeared for the respondents, contended that an interim order should not be made in any form. In support of that proposition, it was submitted that:

"● The Applicant's email access will be reinstated once she is fit to return to return to work and returns to work.

● The Applicant's access to Cybersource will be reinstated once the Applicant is fit to return to work, returns to work and the Respondent is satisfied that the Applicant can and will utilize that system correctly.

● The Applicant's accreditation (access to the Covermore insurance system) will be reinstated once the Applicant is fit to return to work, returns to work and the Respondent is satisfied that the Applicant can and will utilize that system correctly.

● The intention of interim orders is for the Commission to act urgently to protect the interests of the Applicant. The orders sort by the Applicant are more properly considered as part of any hearing of the Substantive Application as they amount to orders to "stop bullying" not orders to protect the Applicant's interests until such time as the Substantive Application can be heard. 

● The Application does not constitute a prima facie case. The alleged bullying conduct is reasonable management action taken in a reasonable way. The Application contains significant factual errors, which will be detailed as part of the Respondent's Form F73 Response.

● The balance of convenience does not weigh in favour of the interim order being made. The orders sought (if granted) would necessitate additional, significant and unnecessary cost associated with the requested monitoring, auditing and training.

● Given the Applicant's current absence on sick leave, such orders (if granted), will have no immediate or material  impact on the Respondent's treatment of the Applicant, as the Applicant is not in the workplace. The orders sought would not provide any additional protection to the Applicant prior to the determination of the Substantive Application.” 3

[15] During the course of the hearing, the respondents confirmed that access to the relevant work systems would be made available in the normal course when Ms Snow returned to the workplace. In relation to the Eftpos system, the respondents indicated that as a result of some alleged errors, access would be provided after some further training had been given to Ms Snow. Further, they contended that access to that system was not, as a matter of course, required by employees in Ms Snow’s position.

[16] As part of their formal position the respondents provided an undertaking that they would not proceed with the planned performance management meeting until Ms Snow was fit to participate. At the request of the Commission, the respondent provided a revised undertaking that it would not seek to advance the performance management process in relation to Ms Snow until at least after the Commission had convened a substantive conference of the parties to deal with the s.789FC application (the revised undertaking).

[17] The respondents also contended that the Commission should not permit the anti-bullying jurisdiction to be used to limit the proper use of performance management systems and that decisions of the Commission had recognised this approach. Further, Ms Snow was presently on sick leave with a medical certificate indicating that she was unfit for work. Attempts by the respondents to seek further clarification to facilitate a return to work had been frustrated by Ms Snow.

[18] In relation to the performance management process, the respondents indicated in effect that it was unlikely that this would lead to dismissal given all of the circumstances, and in any event, they contended that Ms Snow would have access to both the unfair dismissal and general protections jurisdictions should that eventuate. However, the respondents did concede that a dismissal would have an impact upon this application and indicated that the revised undertaking had been provided in any event.

4. The principles to be applied to an interim decision in the anti-bullying jurisdiction

[19] The potential application of interim orders in the anti-bullying jurisdiction was discussed by this arm of the Commission in Bayley. 4 This was referenced in the submission of both parties in this matter and adopted in Subramanian.5

[20] Subject to what follows, I adopt without repeating the approach in this matter that I took in Bayley and the authorities cited in that decision. This involves the consideration as to whether a prima facie case (or a “serious question” to be tried) has been made out by the applicant and whether the inconvenience or injury which the applicant would be likely to suffer if an interim order were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted (the balance of convenience). Further, the nature of the remedy provisions of s.789FF of the Act should inform the consideration of the request for interim orders and the nature of any discretion to be exercised. However, the purpose of the interim orders, including to preserve the capacity to advance the substantive application in appropriate circumstances, must also be considered.

[21] In addition, given the scheme of the Act, interim orders of the nature being considered here should not be issued lightly. The direct intervention of the Commission at such an early stage of proceedings should be exercised with considerable caution. Further, the mere indication that a disciplinary process was involved in the complaints of workplace bullying, without much more, is unlikely to trigger the balance of convenience necessary for such action. Each application must be considered in its own right and circumstances.

[22] I would also respectfully observe that the approach adopted by Gostencnik DP in Worker A, B, C, D and E v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and others 6, where interim orders were made in a s.789FC anti-bullying application to prevent the escalation of probable bullying conduct, is also consistent with the general approach adopted to these matters.

5. Consideration and conclusions

[23] The application for interim orders has been made very early into the Commission’s processes for dealing with the s.789FC application. That is, prior to the point that the Commission is to conduct a conference or hearing to deal with the matter. As a result, whilst the Commission is aware of the contentions made in that application and the contrary response recently provided by the respondents, it has not heard evidence or any detailed submissions about the various issues and facts in dispute.

[24] It is the case that Ms Snow wants to be able to return to work given the loss of income presently being experienced and that her principal concerns within that context arise from the loss of access to the Eftpos system and the potential implications of the performance management process. This latter concern also extends to a fear that if that process involves dismissal, such would complicate, if not prevent, the continuation of this matter.

[25] I am satisfied that Ms Snow’s case, if supported by relevant evidence, is capable of providing a foundation for an application in this jurisdiction. That is, the alleged conduct of the respondent parties may be capable of being found to demonstrate bullying conduct within the meaning of s.789FD of the Act. However, that basis is contested with a plausible response but in any event, that is not the test for consideration of an interim order. Ultimately given my findings below, it is not necessary to reach a conclusion about whether a prima facie case (or a “serious question” to be tried) has been made out within the meaning of the authorities.

[26] In this case, I am not satisfied that the balance of convenience is such that interim orders should be made. The employer has provided the revised undertaking that, at least until the Commission has convened a substantive conference of the parties to commence to deal with the application, it will not seek to advance its performance management process. Given the nature of that undertaking, the immediate concerns about the potential impact of that process do not arise. 7

[27] In that regard, I note that should the employer breach that undertaking (which I do not anticipate) or circumstances significantly change in the lead up to or after the substantive conference, the request for interim orders and the nature of the undertaking provided by the employer can be further considered at that time.

[28] Further, an order that there be no (further) bullying conduct, without much more and without any findings supporting such an order, would not be an appropriate or useful approach to take in matters of this nature.

[29] I do accept that there is potential prejudice to Ms Snow arising from the fact that she has not returned to work. There is scarce medical evidence before the Commission which would provide a foundation for relevant findings about those circumstances or any orders that might require that course of action. Further, whether there is ultimately a loss of pay will depend upon the outcome of Ms Snow’s workers compensation claim. In addition, I am not presently persuaded that the balance of convenience is consistent with an attempt to make orders about the conduct of the parties on an interim basis, in the absence of findings about the full nature and extent of the actual conduct. This is particularly so given the expeditious manner in which the substantive application will be considered by the Commission. Finally, I consider that whilst there are issues associated with the intended return to work of Ms Snow, these can and should be dealt with in a framework that is to be recommended by the Commission.

[30] Accordingly, I do not intend to issue interim orders at this juncture of the proceedings. Liberty is granted for Ms Snow to make a further application should the relevant circumstances significantly change so as to warrant further consideration.

[31] The anti-bullying application will be assigned to a Brisbane based Member of the Commission to convene a substantive conference and to deal with the matter as they see fit having heard more fully from the parties.

[32] In relation to Ms Snow’s potential return to work, I recommend that this be pursued by all parties as a matter of priority. I consider that the reintroduction of access to the Eftpos system following appropriate further training to be undertaken upon resumption of work is a proper and prudent measure.  I also understand that access to all other work systems will also be provided upon resumption of work. Noting that the applicant has a medical certificate indicating that she is unfit for work until early January 2018, I also recommend that all parties, including Ms Snow’s medical practitioner and the employer’s return to work advisors, cooperate to achieve an outcome where that return to work can be undertaken safely and expeditiously.

[33] The other issues raised in the anti-bullying application and the employer’s response can be considered at the substantive conference to be convened by the Commission.

COMMISSIONER

Appearances:

E Snow, the applicant on her own behalf.

J Rogers and S Delaney for Flight Centre Travel Group Ltd T/A Flight Centre and in their own right.

Hearing details:

Adelaide

Video-link to Brisbane

2017

20 December.

 1   Applicant’s application for interim orders dated 13 December 2017.

 2   Ibid.

 3   Respondents’ response to application for interim orders dated 14 December 2017.

 4   Lynette Bayly [2017] FWC 1886.

 5   Dr Hari Subramanian [2017] FWC 3492.

 6   [2016] FWC 5848.

 7   See the discussion of the implications of dismissal in Bayley at [26].

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<Price code A, PR598948>