Fahda v Bupa Hi Pty Ltd

Case [2025] FedCFamC2G 1316

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Fahda v Bupa HI Pty Ltd [2025] FedCFamC2G 1316  

File number(s): SYG 542 of 2023
SYG 678 of 2023
SYG 1900 of 2023
Judgment of: JUDGE MANOUSARIDIS
Date of judgment: 15 August 2025
Catchwords:

INDUSTRIAL LAW – Practice and procedure – application for summary judgment of two separate proceedings in which the applicant claims the respondent contravened s 340(1), s 344, s 351(1), and s 352 of the Fair Work Act 2009 (Cth) – whether applicant has articulated a reasonably arguable case – whether there are no reasonable prospects the applicant will be able to formulate a reasonably arguable case - whether in any event on the material before the Court the applicant does not have reasonable prospects of succeeding on any of his claims for relief – proceedings dismissed.

HUMAN RIGHTS – Practice and procedure – application for summary judgment in proceeding where the applicant alleges he suffered from a disability but the respondent employer failed to make adjustments and for that reason discriminated against the applicant contrary to s 15(2) of the Disability Discrimination Act 1992 (Cth) – whether there are no reasonable prospects that the applicant will be able to formulate a reasonably arguable case based on unlawful discrimination - whether in any event on the material before the Court the applicant does not have reasonable prospects of succeeding on any claim that the respondent engaged in unlawful discrimination by failing to make adjustments for the applicant – proceeding dismissed.

Legislation:

Disability Discrimination Act 1992 (Cth) s 4, 5, 6, 10, 11, 15(2), 21A

Fair Work Act 2009 (Cth) ss 340(1), 341(1)(c), 343, 344, 351(1), 352, 360, 361(1), 386(1)

Federal Court of Australia Act 1976 (Cth) s 31A

Racial Discrimination Act 1975 (Cth)

Sex Discrimination Act 1984 (Cth)

Workplace Relations Act 1996 (Cth) s 298K(1)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.13

Cases cited:

Alam v National Australia Bank Limited [2021] FCAFC 178

Australian Building and Construction Commissioner v Hall [2018] FCAFC 83

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32

Childs v Metropolitan Transport Trust [1981] FCA 200

Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329

Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163

Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204

Dorsch v HEAD Oceania Pty Ltd [2024] FCA 162

Ellis v Wadjemup Trading Pty Ltd [2018] FCCA 3075

Henry v Leighton Admin Services Pty Ltd & Anor [2015] FCCA 1923

Hudson v Australian Broadcasting Corporation [2016] FCCA 917

Maritime Union of Australia & Ors v Geraldton Port Authority & Ors (1999) 165 ALR 67

Monash Health v Singh [2023] FCAFC 166

Ocampo v Australian Aged Care Quality and Safety Commission [2025] FedCFamC2G 1038

Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473

Purvis v State of New South Wales (Department of Education & Training)

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AGLC
Fahda v Bupa Hi Pty Ltd [2025] FedCFamC2G 1316
Case
[2025] FedCFamC2G 1316
Decision Date

CaseChat Overview and Summary

Fahda commenced proceedings against Bupa Hi Pty Ltd, alleging various breaches of the Fair Work Act 2009 (Cth) and the Disability Discrimination Act 1992 (Cth). Bupa applied for summary judgment on the grounds that Fahda had failed to articulate a reasonably arguable case and that there were no reasonable prospects that he would succeed. The primary legal issues before the court were whether Fahda had established a reasonably arguable case against Bupa and whether there were reasonable prospects of success in his claims under the Fair Work Act and the Disability Discrimination Act.

The court examined the evidence provided by Fahda, which was largely contained in a series of emails and attachments sent during the hearing. Despite the volume of material, the court found that Fahda had not presented a coherent case that established a breach of the Fair Work Act or the Disability Discrimination Act. The evidence primarily consisted of subjective complaints about workplace conditions and interactions with management, which did not substantiate the claims of legal violations. The court concluded that there were no reasonable prospects that Fahda would be able to formulate a reasonably arguable case based on the material presented. Consequently, the court dismissed the proceedings, finding that Fahda did not have reasonable prospects of succeeding on any of his claims.

In light of the dismissal, the court made an order that the proceedings be terminated without any costs being awarded to either party. This decision underscores the necessity for claimants to present clear, substantiated evidence to support their legal claims, especially in matters involving statutory rights and obligations.

Orders

Orders of the court

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Background

Background to the litigation

I now move to describe in narrative form the events, as revealed by the material I admitted into evidence.BACKGROUNDEmployment and position of Mr Fahda As I noted at the beginning of these reasons, Mr Fahda commenced employment with Bupa on 5 September 2022 as an outbound retention advisor within the Bupa Retention Centre. At the hearing Mr Fahda explained the nature of the role of retention advisor as follows:[4]So as a role, I’m a retention advisor. So what I do is I win back customers from leaving Bupa. So very frustrated customers, very angry. You promised me you’d cover me for my leg reconstruction and I had to pay 20,000 out of pocket, I’m done. So I come in the room, I try to save that customer, I throw at them loyalty, welcome packages, and I throw at them a VCG and I tell them come back. And every time I win back customer, I build revenue for Bupa. They continue their monthly premium, and they don’t switch to HCF, NIB, they don’t switch to Australia Unity, they stay with Bupa, and I claim that as a retain.[4] T69.5. A document created by Bupa contains the following information about the position of an outbound retention advisor:[5]The role of an Outbound Retention Advisor (consultant) is responsible for reducing discontinuance of health insurance plan by providing quality customer sales and services to customer at risks, which includes recommendations on appropriate products or solutions to customer’s needs and requirements. This is achieved by using inbound and outbound telephone contact functions, including call backs on “high risk” members, and other retention activity required by the business. Bupa operates a remote workforce Contact Centre; consultants are provided with equipment necessary to perform their role and are required to have a private home office and secure internet connection. The majority of consultants communication whether this is messaging of face to face video call meetings is conducted via Microsoft Teams. While performing their role, consultants are logged into a softphone which allows users to make or receive phone calls using VoIP (Voice over Internet Protocol) via their computer. The call functions are controlled by clicking or touching commands on the user interface which activates typical features such as making and answering calls, transferring calls and putting callers on hold, as well as unique features like call recording . When consultants are not engaging with customers on a call , they are required to use specific AUX (Auxiliary codes) to manage non-call time. Contact Centre employees are provided with a roster which outlines their scheduled work time, coaching, meetings and breaks. Currently [Mr Fahda’s] breaks are scheduled daily at first break at 11 am for 15 minutes, lunch break 1:30pm for 40 minutes and last break 4pm for 15 minutes. More information about the physical and psychological demands of the role are provided in the enclosed Job Dictionary.[5] Exhibit B, page 226. Mr Fahda’s employment was subject to the “BUPA Australia Enterprise Agreement 2020” (Bupa EA).[6] There are two provisions that are potentially relevant to the applications before me. The first is cl 4.5, which concerned “Probation Periods”:(a)All employees who are new to Bupa will be required to serve a probationary period of 6 calendar months. (b) The probation period provides Bupa with the opportunity to determine whether or not the employee meets the requirements of the role. (c) If an employee does not meet the required standard, their employment will be terminated, with notice of 1 week, prior to the expiry of the probation period. The Leader must consult with the People team before a decision is taken to terminate employment.[6] Exhibit B, pages 47-80.

Evidence

Evidence Before The Court

Mr Fahda did not file an affidavit. Instead Mr Fahda sent a number of emails to the Court Registry attaching documents on which, it appeared, Mr Fahda intended to rely at the hearing of Bupa’s applications for summary dismissal.EVIDENCE AT THE HEARING OF THE APPLICATION FOR SUMMARY DISMISSAL At the hearing Ms Bulut, who appeared for Bupa, read an affidavit of Ms Rumble, and tendered a court book which, in addition to Ms Rumble’s affidavit, included the ASC and Further ASC. I admitted the court book as an exhibit. Ms Bulut also provided to the Court a folder identified as “Additional Documents Received from Applicant 25-26 June 2024”, which I eventually marked as “Exhibit B”. This occurred after Ms Bulut informed me that “[l]ate yesterday evening and then in the early hours of this morning” Mr Fahda sent “material in the nature of an affidavit”, and that “we’ve printed everything off and collated it for his Honour”.[3] [3] T6.20. Mr Fahda, who appeared by video link, agreed that he had sent material to Bupa’s lawyers, as Ms Bulut said; but he asked to present his material “through screen share and then match up with what you have”. I informed Mr Fahda that, unless there was any objection, I would give Mr Fahda an opportunity to identify the material he wishes me to look at. I said I would do that after Ms Bulut identified the material on which Bupa relied in support of its application for summary dismissal. After Ms Bulut identified the material on which Bupa intended to rely, Mr Fahda attempted to identify the documents on which he intended to rely by using the share facility available on the video service through which he joined the hearing. That proved difficult. I adjourned the hearing to permit Ms Bulut to identify the documents on which Mr Fahda intended to rely. On resuming the hearing, I was made aware that, in addition to what I eventually marked as exhibit B, Mr Fahda had sent an additional 13 emails to the Court and to Bupa’s lawyers, all of which had attachments. At my request, hyperlinks to each of the 13 emails (and their attachments) were forwarded to my Associate’s inbox, and my Associate took a screen shot of the hyperlinks. I marked the screenshot as exhibit C, but as a means of incorporating the 13 emails and the attachments to those emails that are accessible by clicking the hyperlinks. On 28 June 2024, after the hearing, the lawyers for Bupa sent to my Associate an email which, under the heading “Emails received by Gadens from Mr Fahda on 26 June 2024 during the Hearing and shortly thereafter”, there were identified 14 hyperlinks to emails Mr Fahda had sent, two of which were the same. On 1 July 2024 my Associate sent an email to the parties noting that I proposed to substitute for the then current Exhibit C a screenshot of the list of emails that appears in the email Bupa’s lawyers sent on 28 June 2024. At my direction, and in chambers, my Associate accessed the emails and their attachments, and reproduced each of the emails and their attachments into one pdf document comprising 2,379 pages. It is that set of documents that constitutes “Exhibit C”. I separately marked as “Exhibit A” a form of affidavit Mr Fahda signed, which was not attested.

Decision

Reasons for decision

At 6.42 pm on 5 December 2022 Mr Fahda sent an email to Ms Awwad in which he said he was “saddened to see” that his “submissions were not made in full for this meeting”, and “understandably to afford [Mr Fahda] a fair process”.[20] Mr Fahda claimed there was “vital information” Mr Fahda shared that is “not mentioned [i]n this report”, and “information mentioned numerous times that [Mr Fahda] did not state”. Mr Fahda further stated (errors in original):I have adhered to company policy and schedule to the best of my abilities per adherance in a complex phone system environment. I have always taken onboard my TL feedback where given,I have not been given any feedback or way to improve if needed for adherance, not in writing or any modules, to avoid a Humilating meeting of this nature that no doubt effects my wellbeing, reputation and ability to focus on what my passion is, Serving BUPA customers with the knowledge I have and about to gain, along with personal development, and feel apart of a team.So please understand my positon, I always requested support and not a heavy handed approach inorder to believe in my abilities and not be supressed, but rather be empowered,in a welcoming enviroment and a place that fosters understanding and genuine care.So im perplexed why no allowanced or understanding was afforded to me prior or post meeting, todays results.May I suggest as a Meaningful remedy for this area of KPI of Adherance, that the softphone be engineered to not allow calls to drop in after a call ends, and a reminder for new consultants of when to take a break in a fast paced enviroment.[20] Exhibit C, page 1051.6 December 2022 – Mr Fahda records “Speak Up” about 5 December 2022 decision On 6 December 2022 Mr Fahda submitted a further “Speak Up” in which he stated as follows (errors in original; emphasis added):[21]My TL Rita and support Person Kirrille using a business tool to aggravate the stability of my employment at Bupa. The most recent meeting on 17 November 2022, on Adherence to schedule, i wasnt trained or shown how to improve in that KPI. and my suggestions ignored on adopting ways to make it work and disallow phone call from customers coming in during key times for break , ie 11 am, 1 :30pm, and 4pm. Where i work in a complex call system environment, fast paced and often experience glitches with softwares which then produce negative or misconstrued results. I had been thrust into meetings of heavy handed and formal nature too many time, along with unregistered meetings by my TL during the month of October. Creating a tense environment, and not once meeting with me to celebrate or appreciate any positive performances. A few of meetings with TL not registered were of bullying nature and compelling me to leave the company, like “third time i tell you that” ..... or Your medical allowances just “don’t meet the business needs” and your still not adhering to your break times while at that instant time was taken out, by having to attend unregistered, unscheduled where i would be confused if i have a right to go on a break. Fear of being pulled into more meetings as retaliation if i spoke up, like for example speaking up led to harsh treatment from my TL prying on my Teams chat, and creating a sub chat just to humiliate me infront of the colleague the was connecting with me briefly. So far ive had 2 investigatory meetings of heavy-handed nature, where i wasnt given an opportunity to have a written statement submitted, but rather often contaminated accounts written by the opposing parties conducting the meetings. i would of appreciated support meetings and guidance in writing or practice before harsh meetings would take place. The environment and culture at Bupa is a complex one, where people like me have little to no advocacy/ support. Ive currently suffered a few medical relapses due to the taxing nature of these procedures. I dont like to be disadvantaged and precious time ta ken away from my personal growth and professional development[21] Exhibit B, page 238.7 December 2022 – Mr Fahda meets with Ms Gloyne and Ms Awwad

Ratio Decidendi

Legal Principle Established

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