Fisk

[2023] FWC 1248

[2023] FWC 1248

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Fisk

(SO2022/504)

COMMISSIONER MCKINNON SYDNEY, 30 MAY 2023

Application for an order to stop bullying

1. Mr Bradley Alan Fisk has applied for orders to stop bullying at work under s.789FC of the Fair Work Act 2009 (the Act). The application was initially made in relation to Mercy Hospitals Victoria Ltd trading as Mercy Health (Mercy Health) and four individuals, Mr Ryan Dube, Ms Natasha Stresnjak, Ms Laura Nelson and Ms Maria Mattiacci. It was amended on 30 March 2023 to remove Ms Nelson and Ms Mattiacci as individual respondents. The application arises in the context of Mr Fisk’s long‑term absence from work.

1. Under Part 6-4B of the Act, a worker is bullied at work if a person or group repeatedly behaves unreasonably towards the worker (or a group of workers of which they are a member) while they are at work in a constitutionally-covered business, and the behaviour creates a risk to health and safety.[1] Bullying at work does not include reasonable management action carried out in a reasonable manner. If the Commission is satisfied that a worker has been bullied at work, and there is a risk that the bullying at work will continue, orders can be made to prevent its recurrence.

1. The question is whether the application has reasonable prospects of success, in connection with:

2. whether Mr Fisk was “at work” when the alleged bullying occurred, and

3. whether there is a risk that he will continue to be bullied at work by the individuals named in his application.

1. There is also a separate question about whether the application should be dismissed due to Mr Fisk’s non-compliance with directions (failure to file evidence).

1. I have decided that the application has no reasonable prospects of success and should be dismissed. These are my reasons.

Chronology

1. Mr Fisk commenced full time (fixed term) employment with Mercy Health on or about January 2018 as a registered psychiatric nurse. From 2019, he worked within Mercy Mental Health, based in Footscray and reported to Ms Natasha Stresnjak (Manager, Emergency Mental Health), who in turn reported to Mr Ryan Dube (Deputy Program Director).

1. On 28 May 2020, Ms Stresnjak wrote to Mr Fisk about his performance and sought a meeting to discuss the concerns on 4 June 2020.

1. On 1 June 2020, Mr Fisk lodged a formal grievance about alleged bullying and harassment by Ms Stresnjak, including in relation to her having raised the performance concerns.

1. On 5 June 2020, Mercy Health (through Mr Dube) wrote to Mr Fisk advising that he would be re-assigned to the Community Care Unit in Werribee with effect from 8 June 2020, in connection with its obligation to provide a safe workplace while his grievance was investigated. After the intervention of the Australian Nursing and Midwifery Federation, Mercy Health instead approved discretionary special leave for Mr Fisk from 26 June 2020 until the investigation was completed.

1. On 18 June 2020, Mr Fisk applied to the Commission for orders to stop bullying at work in relation to Ms Stresnjak and Mr Dube – the latter in connection with the direction for Mr Fisk to work at Werribee while his complaint was investigated.[2] The file was closed on 1 February 2021 after a period of inactivity on the file.

1. On 26 August 2020, Mr Fisk commenced employment with the State of Victoria (Department of Health) as a Public Health Officer, working in the Hotel Quarantine Unit’s contact tracing team. Towards the end of February 2021, the employment relationship began to deteriorate.[3] After the Department of Health raised performance-related concerns, Mr Fisk took personal leave from 15 April 2021 and did not return. Mr Fisk was dismissed by the Department of Health with effect from 30 June 2021.[4] He subsequently applied for worker’s compensation in relation to his employment with the Department and received weekly compensation payments until December 2021.

1. The investigation of Ms Fisk’s complaint about Ms Stresnjak was finalised in September 2020. On 11, 17, 21 and 25 September 2020, Mercy Health wrote to Mr Fisk about the outcome of its investigation. No bullying was found to have occurred and a meeting was proposed to discuss, among other things, Mr Fisk’s return to work. Mr Fisk’s approved discretionary paid leave ended on 25 September 2020 and the parties met to discuss the outcome of the investigation on 28 September 2020.

1. On 8 October 2020, Mercy Health (through Ms Stresnjak) formally wrote to Mr Fisk with concerns about his performance. A meeting to discuss the concerns was proposed for 13 October 2020 and confirmation of Mr Fisk’s attendance was sought by 12 October 2020. In the meantime, Mr Fisk was stood down on full pay while the allegations in relation to his performance were investigated.

1. On 12 October 2020, lawyers acting for Mr Fisk sought an adjournment of the proposed meeting to discuss performance concerns until 27 October 2020. This request was agreed and Mr Fisk remained stood down until 27 October 2020.

1. On 26 October 2020, Mr Fisk provided Mercy Health with a medical certificate for the period from 26 October 2020 to 20 November 2020. From 28 October 2020 (after the period of stand down), Mr Fisk commenced personal leave. Subsequent certificates of capacity were provided on a monthly basis for the period to 16 December 2020; then from 16 January 2021 to 8 July 2021; and from 30 October 2021 to 26 December 2021. Each certificate included the functional consideration that Mr Fisk “can’t work for Mercy hospitals”.

1. On 9 March 2022, Ms Mattiacci (HR Business Partner) attempted to contact Mr Fisk by telephone and email, seeking contact to discuss his capacity to return to work in his substantive role.

1. On 23 March 2022, Mr Dube wrote to Mr Fisk about his ongoing absence from the workplace, mostly on unpaid personal leave. Information was requested about his intention to return to work and his capacity to do so, having regard to medical certificates indicating his incapacity for work for Mercy Health.

1. Further attempts were made to contact Mr Fisk about his capacity for, and return to, work. Mr Fisk spoke with Ms Mattiacci on 5 May 2022 and agreed that he would send through a copy of his certificate of capacity to 21 May 2022. Instead, on 20 May 2022, Mr Fisk advised that he had an appointment with his doctor on 23 May 2022 and would provide an update after that time. There is no evidence that he provided such an update to Mercy Health.

1. On 2 June 2022, Mercy Health re-sent its letter of 23 March 2022 to Mr Fisk.

1. On 19 June 2022, Mr Fisk contacted the “After Hours Co-ordinator” requesting to be rostered on for a shift.

1. On 20 June 2022, Mr Fisk sent a message to Ms Mattiacci to the effect that a medical certificate had been provided to Mercy Health by his legal representatives. He also called a member of the administrative staff and booked himself in for a shift on 23 June 2022. Ms Mattiacci subsequently made enquiries and confirmed with Mr Fisk that no such certificate had been received.

1. On 29 June 2022, Ms Mattiacci wrote to Mr Fisk advising him not to book in for shifts and seeking information about his capacity to return to work by 8 July 2022. Despite this advice, Mr Fisk continued to request shifts from the After Hours Co-ordinator.

1. On 8 July 2022, Mr Fisk advised that he had contacted his lawyers and sent medical certificates to Mercy Health. Ms Mattiacci advised that the medical certificates had not been received.

1. On 11 July 2022, Ms Mattiacci again resent Mr Fisk the letter of 23 March 2022 and sought his response by 14 July 2022. Mr Fisk advised Ms Mattiacci that he had a doctor’s appointment scheduled for 15 July 2022 and would provide an update after that time.

1. On 30 September 2022, the Health and Community Services Union (HACSU) contacted Mercy Health to discuss Mr Fisk’s return to work and was advised that more information was needed about his capacity for work.

1. On 6 October 2022, Mr Fisk again attempted to roster himself on for a shift without approval. Both the shift and Mr Fisk’s access to the Roster-On system was cancelled, and Mr Fisk was notified.

1. On 7 October 2022, Mercy Health wrote to the HACSU confirming that it required further information from Mr Fisk about his capacity for work.

1. On 10 October 2022, Mr Fisk again requested an After Hours Co-ordinator to roster him on night shift.

1. On 12 October 2022, Mr Fisk made this application to the Commission. He alleged that his treatment by Mercy Health had deteriorated since his earlier application was closed on 1 February 2021. He alleged that he was being bullied at work in connection with Mercy Health’s refusal to allow him to return to work and its unreasonable requests for information.

1. In the meantime during 2022, Mr Fisk was separately working under contract or labour hire arrangements, including generalised labouring and nursing agency work as well as a nursing contract in Albury‑Wodonga which ended in December 2022.

Consideration

Was Mr Fisk “at work” when the alleged bullying occurred?

1. A worker is considered to be “at work” at any time the worker performs work, regardless of their location or the time of day.[5] But the concept of being at work is broader than this and also encompasses participation in workplace activities that are authorised or permitted by the employer[6] (or in the case of a contractor, the principal). It would include, for example, non-working time at the workplace while preparing to start or finish work, or while taking a break, or participating in an authorised online forum while working from home.

1. However, not all interactions that have a connection with work are within the scope of Part 6-4B of the Act. While each case depends on its own facts and circumstances, efforts to navigate the return to work of an employee who is absent on medical grounds will not usually occur while the employee is at work. A return to work necessarily follows a period of absence - during which the employee is not at work in the business of their employer.[7] They are not required to perform any work that an employer needs to have done or that adds value to its operations,[8] including because, for medical reasons, they cannot do so. Nor are they authorised or permitted to participate in any other form of workplace activity. For this reason, interactions that occur with the worker during their absence may not be capable of meeting the statutory description of “bullied at work”.[9]

1. In this case, Mr Fisk has not attended the workplace of Mercy Health since June 2020. He has not performed, and has not been required to perform, any duties under his contract of employment since 25 October 2020. In the period from 25 October 2020 until 26 December 2021, Mr Fisk’s absence was explained at least in part by his medical incapacity to “work in Mercy hospitals”. He was also at work in another business (the Victorian Department of Health) from 26 August 2020 until 15 April 2021 (remaining in employment until 30 June 2021 and then in receipt of worker’s compensation payments until December 2021).

1. After 26 December 2021, Mr Fisk’s absence from work at Mercy Health was not explained until medical certificates were provided on 18 November 2022 in connection with this proceeding. While Mr Fisk’s application refers to alleged bullying at work “going on since December 2019”, that earlier conduct was the subject of a previous application to the Commission. The allegations of bullying arising from the present application relate to the period from March to October 2022 and in particular the conduct of Mercy Health in connection with Mr Fisk’s absence and efforts to achieve his return to work.

1. For these reasons, I find that Mr Fisk was not “at work” when the alleged bullying that is the subject of this application occurred.

Is there a risk that Mr Fisk will continue to be bullied at work by the individuals named in his application?

1. The amended application alleges that Mr Fisk was bullied at work by Mr Dube and Ms Stresnjak.

1. Mr Dube ceased employment with Mercy Health on 27 January 2023. He is no longer in any position of responsibility in relation to Mr Fisk. The allegations made against Mr Dube arise in the context of his exercise of duties specific to his former role as Deputy Director of the Emergency Mental Health division of Mercy Health. While it may be that Mr Dube has obtained alternative employment in the same hospital, there is no evidence about the nature of this role or even the possibility that it would require any future interaction with Mr Fisk. For these reasons, I am not satisfied that there is any future risk of Mr Fisk continuing to be bullied at work by Mr Dube in the context to which Mr Fisk’s application is directed.

1. Ms Stresnjak remains employed by Mercy Health, although in a different role. At the time this application was made, Ms Stresnjak was employed in the role of Manager Emergency Mental Health. The role required her to manage Mr Fisk, including in relation to his performance. It is in that context that Mr Fisk’s allegations against Ms Stresnjak arose.

1. On or about 28 February 2022, Ms Stresnjak’s role changed and she became employed in the position of Senior Psychiatric Nurse. Ms Stresnjak no longer has any managerial responsibility in relation to Mr Fisk. She does, however, have “mental health program wide responsibilities associated with undertaking discipline senior functions”, which may bring her into contact with Mr Fisk if he returns to work in Mercy Health’s mental health program, while she is in a position of responsibility in relation to his work. For this reason, the potential risk of Mr Fisk being bullied by Ms Stresnjak if he returns to work cannot be excluded at this juncture.

Non-compliance with directions (failure to file evidence)

1. Given the conclusions I have reached above, it is unnecessary to determine whether the application should be dismissed due to Mr Fisk’s non-compliance with the directions of the Commission in relation to the filing of materials.

Conclusion

1. As Mr Fisk was not at work when the alleged bullying occurred, the Commission cannot be satisfied that he was “bullied at work” for the purposes of the Act. No orders can be made to stop the alleged bullying at work in relation to Mr Fisk. There is also no future risk of Mr Fisk continuing to be bullied at work by Mr Dube.

1. It follows that the application has no reasonable prospects of success. Mr Fisk is of course not precluded from making a further application for orders to stop bullying at work if, and when, he returns to work for Mercy Health. The appropriate course in the meantime however is to dismiss the application.

1. The application is dismissed.

COMMISSIONER

Appearances:

B Fisk on his own behalf.
N Harrington of Counsel for the respondent.

Hearing details:

2023.
Sydney (by video):
March 30.

[1] Fair Work Act 2009 (Cth), s.789FD.

[2] AB2020/396.

[3] Bradley Alan Fisk v State of Victoria (Department of Health) [2022] FWC 911 at [22].

[4] Bradley Alan Fisk v State of Victoria (Department of Health) [2022] FWC 911.

[5] Bowker & Ors v DP World Melbourne Limited & Ors [2014] FWCFB 9227.

[6] Bowker & Ors v DP World Melbourne Limited & Ors [2014] FWCFB 9227; Balthazaar v Department of Human Services (Commonwealth) [2014] FWC 2076.

[7] Mac v Bank of Queensland Limited & Ors [2015] FWC 774.

[8] Bibawi v Stepping Stone Clubhouse Inc. & Ors [2019] FWCFB 1314.

[9] Act, s.789FD.

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