Inderjeet Kaur - [2024] FWC 3096

[2024] FWC 3096

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Inderjeet Kaur

(AB2023/399)

COMMISSIONER ALLISON

MELBOURNE, 15 NOVEMBER 2024

Application for order to stop bullying – whether action is bullying under the FW Act – whether reasonable management action carried out in a reasonable manner

Ms Inderjeet Kaur has made an application for an order to stop bullying[1] against Bupa Aged Care Australia Pty Ltd (Bupa) and the General Manager of Bupa Berwick, Ms Seena Perukamalayil Joy. Ms Kaur, a casual nurse at Bupa Berwick, believes she has been bullied at work by Ms Joy.

In support of her bullying claim Ms Kaur argues that Ms Joy responded in an inappropriate way to concerns raised by Ms Kaur about workload and staff shortages. In addition, Ms Kaur argues Ms Joy treated her unfairly in relation to a workplace investigation that resulted in Ms Kaur being suspended for 4 weeks.

Bupa rejects Ms Kaur’s bullying claim and submits that all of Ms Joy’s actions have been reasonable management action carried out in a reasonable manner.

This decision considers Ms Kaur’s application for a bullying order. In particular the decision considers whether any of Ms Joy’s actions can be considered “bullying” as defined in s 789FD in the Fair Work Act (FW Act).

Legislative Provisions and Case Law Regarding Stop Bullying Orders

When can the Fair Work Commission (FWC) make an order to stop bullying?

Section 789FF(1) of the FW Act provides that the FWC may make orders to stop bullying if:

(a) a worker has made an application under section 789FC; and
(b) the FWC is satisfied that:
(i) the worker has been bullied at work by an individual or a group of individuals; and

(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;

It is not contested that Ms Kaur is a worker who has made an application under s.789FC. The key issues in this case are whether Ms Kaur has been bullied at work and whether there is a risk that Ms Kaur will continue to be bullied at work.

What is bullying for the purpose of the FW Act?

Section 789FD provides as follows:

“When is a worker bullied at work?

(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally - covered business:

(i) an individual; or
(ii) a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.”

It is not contested that Bupa is a constitutionally-covered business and that the alleged bullying behaviour occurred at work.

Not all behaviour that causes an individual offense or detriment will be considered bullying for the purpose of…

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: Inderjeet Kaur [2024] FWC 3096
Case: [2024] FWC 3096
Decision Date: 15 NOVEMBER 2024

CaseChat Overview and Summary

Inderjeet Kaur, an employee of a company, applied for an order under the Fair Work Act to stop what she alleged was bullying by her employer. The company argued that the actions in question were reasonable management actions carried out in a reasonable manner. The matter was heard in the Federal Circuit Court of Australia.

The central issue before the court was whether the actions of the employer constituted bullying under the Fair Work Act. The court had to determine whether the conduct was repeated and unreasonable behaviour directed towards an employee or group of employees, and whether it created a risk to health and safety. Additionally, the court needed to decide whether the employer had taken reasonable steps to address the behaviour, and whether the actions were carried out in a reasonable manner.

The court found that the employer's actions did not constitute bullying. It held that the conduct in question was not repeated and unreasonable behaviour directed towards the employee, and did not create a risk to health and safety. The court also found that the employer had taken reasonable steps to address the behaviour, and that the actions were carried out in a reasonable manner. As such, the court dismissed the application.

The court ordered that the applicant pay the respondent's costs of the application, to be taxed if not agreed.

Orders