Mr George Samuel v Inner South-West Community Development Organisation Ltd T/A Iswcdo and Asha Ramzan

[2016] FWC 3550

[2016] FWC 3550

FAIR WORK COMMISSION

DECISION

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

Mr George Samuel
v
Inner South-West Community Development Organisation Ltd T/A ISWCDO and Asha Ramzan
(AB2015/231)

COMMISSIONER CAMBRIDGE SYDNEY, 10 JUNE 2016

Application for an FWC Order to stop bullying.

[1] On 16 April 2015, Mr George Samuel (the applicant) made an application under s. 789FC of the Fair Work Act 2009 (the Act), seeking that the Fair Work Commission (the Commission) make an Order to stop bullying (a stop bullying Order). The applicant sought a stop bullying Order against his employer, the Inner South-West Community Development Organisation Ltd (the employer) and Ms Asha Ramzan, the Executive Officer of the employer.

[2] On 24 April 2015, Ms Ramzan filed a response to the application on behalf of the employer, and there was no separate response made by Ms Ramzan herself. Proceedings in the matter commenced on 18 May 2015, when the Commission held a conference for the purpose of exploring potential settlement of the matter. The conference did not provide for any resolution of the matter, and further conference and directions proceedings were held on 10 September, 28 October and 18 December 2015.

[3] The application document indicated that the applicant was represented by the Australian Services Union. However, the applicant has represented himself throughout all proceedings before the Commission. During the proceedings held on 28 October 2015, the Commission was persuaded that the matter satisfied the requirements of s. 596 of the Act, and permission was granted for any of the Parties to be represented by lawyers or paid agents.

[4] The matter proceeded to arbitration in a Hearing conducted on 17 March, and 18 April 2016. At the Hearing, the applicant represented himself, and he was the only witness called to provide evidence in support of the application for a stop bullying Order. The employer and Ms Ramzan were represented by Ms S Ryan, solicitor from HWL Ebsworth lawyers. Ms Ryan called Ms Ramzan and one further witness, Mr Chris Gambian, who provided evidence in opposition to the application for a stop bullying Order.

Relevant Historical Background

[5] The applicant commenced employment in October 2011, and he was engaged by the employer in a position described as HACC Development Officer, (HACC is the acronym for home and community care). The applicant was engaged on a part-time basis working 21 hours over three days per week, although, for a fixed period, the applicant’s working hours were extended to cover the temporary absence of another HACC Development Officer.

[6] The employer is a small not-for-profit organisation that works with local community groups and organisations in the Sydney suburban local government areas of Canterbury, Hurstville, Kogarah, Marrickville, Rockdale and the Sutherland Shire. The employer has six permanent part-time and two casual employees who report to the only full-time employee, being the Executive Officer, Ms Ramzan. The employer operates from an office located in Bardwell Park, at which all of its employees are engaged. The employer advances what it describes as key social justice and sustainability issues and concerns, and its operations are reliant primarily upon State and Federal Government funding. The operations of the employer are overseen by a Board comprising seven voluntary members, one of whom is the President. The President of the Board was Mr Gambian between November 2014 and February 2016.

[7] The position that the applicant occupied was dependent upon external funding, primarily that provided by State and Federal governments. The applicant’s work involved resourcing and supporting HACC funded community services in the local government areas of Canterbury and Marrickville. Another HACC Development Officer undertook the same or similar work in respect of the other local government areas covered by the operations of the employer.

[8] Apparently the employer does not provide any direct services itself, but it operates to identify particular needs of the local communities, and advance various means by which those needs might be satisfied via funding for the provision of particular services. Consequently, a significant component of the work of the applicant involved the preparation of documentary reports and submissions seeking funding for various community-based projects. These reports and funding submissions would be provided to the employer’s Executive Officer, Ms Ramzan, who would then finalise the documentation and formally submit it to the appropriate agencies.

[9] The employment of the applicant appeared to be without noticeable incident until July 2014, when the employer received a formal complaint from the coordinator of one of the community-based organisations that had been dealing with the applicant. Ms Ramzan raised concern with the applicant about the issues that had been raised in the formal complaint, and following certain actions that were undertaken by the applicant, this complaint was resolved to the satisfaction of Ms Ramzan.

[10] On 27 August 2014, the applicant met informally with Ms Ramzan in the office lunch room, and he requested that he be permitted to take urgent leave because a number of matters had arisen. Firstly, he had been advised of the requirement to attend for jury duty, secondly, he had external study exams that he needed to prepare for, and thirdly, he advised that his wife had become pregnant. In the course of discussion about these various matters, the applicant reiterated to Ms Ramzan that he wanted the employer to extend his part-time hours and provide him with at least an additional day’s work. Ms Ramzan indicated that any extension to the applicant’s hours could only occur if the employer was successful in obtaining additional external funding.

[11] The urgent leave sought by the applicant was granted by Ms Ramzan. However, the applicant was clearly upset about what he perceived to be the lack of appreciation for the work that he was undertaking. The applicant wrote a lengthy email addressed to a member of the employer’s Board and to Ms Ramzan, in which he set out various aspects of dissatisfaction with the way that he was treated at work. In this email, the applicant advised that he was experiencing various stresses at work, and this was having an impact on his personal health. The applicant sought and obtained the assistance of the employer’s employee assistance program (EAP) before he returned to work on 8 September 2014.

[12] On 19 March 2015, the applicant approached Ms Ramzan again in the lunch room, and he discussed with her aspects of his wife’s health as she was approaching the late stages of pregnancy. The applicant requested that he be permitted to work from home so that he could be with his wife in the event that she went into labour early and needed his support. After some discussion, Ms Ramzan agreed to a particular arrangement to permit the applicant to work from home, which involved him completing work on a specific submission. The applicant then asked Ms Ramzan about a separate matter involving a submission that he had previously prepared and provided to her. Ms Ramzan told the applicant that she had not used that particular submission, and the applicant reacted angrily to this news. The applicant complained bitterly and loudly that his work had been disregarded by Ms Ramzan, and he abruptly departed from the lunch room.

[13] On 23 March 2015, the applicant sent a lengthy email to the Secretary of the employer’s Board, Mr Falzon, in which he raised workplace health and safety complaints and a pay claim. This email included reference to bullying in the workplace. The applicant was working from home at this time, and he was to then commence a period of parental leave. Therefore, the employer decided that it would delay dealing with the applicant’s formal complaint until he had returned from parental leave.

[14] The applicant was due to return to work from parental leave on 22 April 2015. However, during the period of his absence he communicated by email with Ms Ramzan in respect to the particular submission that he had been preparing. On 13 April 2015, the applicant emailed the final draft of the relevant submission to Ms Ramzan. On the following day, 14 April, Ms Ramzan sent an email to the applicant which, in summary, thanked him for his draft submission but indicated that the submission was deficient, and it would not be used. Ms Ramzan included in the email to the applicant a detailed critique of the deficiencies of the draft submission.

[15] On 16 April 2015, the applicant sent an email to the employer which attached a WorkCover incapacity certificate, and advised that he had made an application to the Commission for a stop bullying Order. Other than for a brief return to work on 11 November 2015, the applicant has remained on medical leave. The absence of the applicant included a period which was the subject of a contested workers compensation claim.

The Case for the Applicant

[16] The applicant presented a considerable amount of documentary material in support of his application for a stop bullying Order. Unfortunately, the applicant’s materials were not provided in a particularly coherent configuration, as they did not include any primary witness statement which may have referenced the various other materials. Notwithstanding these difficulties, and over the repeated objections made on behalf of the employer, the Commission endeavoured to admit into evidence all of the documents that the applicant sought to rely upon. It should be noted that the material provided by the applicant included an early intervention report of a psychiatrist 1. The Commission has been mindful of the contents of the psychiatrist’s report which inter alia, mentioned the psychological stresses that the applicant had suffered in connection with his work.

[17] The applicant provided one document which was headed “applicant summary of submissions” and during the Hearing, the applicant made oral submissions further to the written material contained in the summary of submissions document. The applicant commenced his oral submissions by indicating that he believed that he was owed a duty of care which had not been discharged, and that his bullying complaint made in March had been instantly ignored.

[18] The applicant made submissions which referred to statistical information that he had extracted from the Commission’s website. In particular, he submitted that his application for a stop bullying Order fell into the statistics of the fourth quarter of 2014/2015. The applicant noted that in this period there were 163 applications of which 117 were about the manager. Therefore, the applicant submitted that workplace bullying was about a power relationship. The applicant said that the statistics displayed on the Commission’s website also showed that about 25% of the anti-bullying matters came from the community and aged care sector. The applicant submitted that this suggested that there were lots of small, one manager organisations who knew about their workplace bullying obligations, but seemed to think that they were not required to follow them.

[19] The applicant made further submissions in which he said that there were two people, Ms Ramzan and Mr Gambian, who had “tag-teamed” to attack him since he had raised complaints of workplace bullying. The applicant said that when these two people were not satisfied with attacking him themselves, they got a lawyer to go around WorkCover and attack the applicant’s doctor. The applicant said that the respondent was trying to pull a fast one on the Commission.

[20] The applicant made further detailed submissions which referred to each one of the documents that had been marked as exhibits. The applicant then referred to sections of the Act which he said had been satisfied so as to provide for the making of a stop bullying Order. The applicant said that the bullying had been repeated, and that it first occurred in August 2014, when he was ambushed in the lunch room. The applicant submitted that he had been subjected to unreasonable work demands, and further that he had been promised but had not been delivered with a pay advance. The applicant also complained that the employer had told him that they would see the Union off, and that he had been given higher work expectations than his better resourced colleague.

[21] The further submissions of the applicant raised complaint about being contacted by the employer when he was at home, knocking out his medical certificate, being forced back to work, and suffering from the excessive power of the Executive Officer who did not use a fair process. The applicant acknowledged that he had been accused of being verbose in respect of the complaints that he had made. However, he said that he had trouble finding the words to describe exactly how wrong some of the elements of his case were.

[22] The applicant made submissions about the bullying behaviour of the employer creating a risk to health and safety. The applicant noted that Ms Ramzan was a trained psychiatric nurse who had done workplace health and safety training. The applicant submitted that with this knowledge, Ms Ramzan repeatedly “binned” the applicant’s work which she knew would be a process of workplace bullying.

[23] The applicant submitted that there was a specific risk that he would be bullied at work by Ms Ramzan. Further, he submitted that there was a general risk that he would be bullied by Mr Gambian. The applicant made a further submission which distinguished his workers compensation matter, which he said would result in him being paid wages for the last six months. The applicant stated that the employer had been aggravating his condition and trying to prevent his safe return to work.

The Case for the Employer

[24] Ms Ryan, solicitor, who appeared for the employer at the Hearing, made oral submissions in amplification of documentary material dated 25 February 2016, which had been filed on behalf of the employer. Ms Ryan commenced her submissions by alluding to certain difficulties that were presented by the way in which the case for the applicant had unfolded. In this regard, Ms Ryan suggested that the nature of the applicant’s case had altered as it was now asserted that both Mr Gambian, and indeed she herself, had bullied the applicant.

[25] Ms Ryan submitted that although the applicant had tendered wide ranging material, the case that the applicant brought did not satisfy the relevant requirements. Ms Ryan submitted that the employer, and all persons acting on behalf of the employer, who may have been caught by the application, had acted reasonably at all times. Ms Ryan submitted that there had been no bullying conduct of any individual whether that was Ms Ramzan, Mr Gambian, or any other person acting on behalf of the employer.

[26] The submissions of Ms Ryan asserted that the applicant was prosecuting an agenda which dealt with matters that were outside of the jurisdiction of the Commission. Specifically, Ms Ryan submitted that the applicant’s chief complaint was that he wanted to be provided with an increase in hours and days of work to assist his personal financial circumstances.

[27] Ms Ryan made further submissions which focused upon the three events which were identified as being relevant to the applicant’s claim of workplace bullying. Ms Ryan said that in each of these instances, Ms Ramzan had dealt with the matter in an entirely reasonable fashion, including accommodating the various requests of the applicant for leave or other issues. Ms Ryan stressed that in contrast to the reasonable actions of Ms Ramzan, the applicant had acted in an unacceptable manner when he angrily rejected the reasonable propositions that had been conveyed to him by Ms Ramzan.

[28] It was further submitted by Ms Ryan that Ms Ramzan was acting entirely within her prerogative to decide whether or not to use the draft submissions that had been provided by the applicant. Ms Ryan said that Ms Ramzan provided the applicant with detailed and reasoned explanation for certain identified deficiencies, and that there was nothing at all unreasonable about those communications. Ms Ryan submitted that it was the applicant’s reaction to those communications which was unreasonable.

[29] In summary, Ms Ryan submitted that there was no evidence of unreasonable behaviour on the part of the employer, and that the actions of Ms Ramzan and of any of the employer’s Board members, constituted reasonable management action, carried out in a reasonable manner, as was contemplated by the Act. Ms Ryan submitted that there was no jurisdictional basis for the Commission to make any stop bullying Order, and therefore the application should be dismissed.

Consideration

[30] The provisions of Part 6-4B of the Act provide for persons who have been bullied at work to apply to the Commission for a stop bullying Order. A stop bullying Order is provided for in s. 789FF of the Act, which is in the following terms:

“789FF FWC may make orders to stop bullying

(1) 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;

then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.

(2) In considering the terms of an order, the FWC must take into account:

(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body—those outcomes; and

(b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes—that procedure; and

(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes—those outcomes; and

(d) any matters that the FWC considers relevant.”

[31] The application was taken in accordance with s. 789FC of the Act, and there was no dispute that the applicant was a worker, and that he reasonably believed that he had been bullied at work. Of course the belief of the applicant, reasonably held or otherwise, is not determinative of the matter. Fundamentally, the Commission is required to decide whether the applicant was a worker who was bullied at work as contemplated by s. 789FD of the Act, which is in the following terms:

“789FD 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.

(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:

(a) the person is:

(i) a constitutional corporation; or

(ii) the Commonwealth; or

(iii) a Commonwealth authority; or

(iv) a body corporate incorporated in a Territory; or

(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;

then the business or undertaking is a constitutionally-covered business.”

[32] In this instance, there was considerable difficulty with the evidence that had been presented by the applicant. Further, the Commission has been troubled by the evidence of concerns regarding the mental wellbeing of the applicant. Notwithstanding these difficulties, the Commission has examined the events which have been identified as the central focus of the applicant’s complaints.

[33] It was clear from the evidence that was provided, together with the conduct, demeanour and other observed characteristics of the applicant, that matters about which he raised complaint have had a significant deleterious impact upon his personal health. A convenient summary of the applicant’s complaints was provided by the five dot points that he included in his email of 23 March 2015, under the heading of “WHAT NEEDS TO HAPPEN”, and which stated:

“WHAT NEEDS TO HAPPEN

• I need to be paid back for the difference between Maryana’s pay and my own over the last three years (other than the six months when I covered maternity leave)



• There needs to be an adjustment of my annual leave accrual to reflect those hours accrued.



• I need to be paid the same as my colleague who does the same job from now on.



• CDO need to manage workplace health and safety and see that bullying in the workplace ends.



• CDO needs to end retaliation against workers who seek their rights.”

[34] The first three of the complaints identified by the applicant all relate to what is essentially an underpayment of wages claim connected with a desire to increase hours of part-time work. Over a considerable period of time, the applicant had raised concern about what he perceived to be the undervaluation of the work that he was performing, particularly in comparison to a colleague who was performing similar work for a different group of local government areas.

[35] In response to the applicant’s requests to increase his hours of work, the employer was legitimately constrained by its reliance upon external funding. The evidence of the way in which Ms Ramzan explained these circumstances to the applicant when she refused to increase the applicant’s hours of work, was entirely reasonable and compassionate. Indeed, various other requests made by the applicant for urgent leave and other issues, were broadly accommodated by Ms Ramzan. Consequently, the evidence firmly established that Ms Ramzan and other representatives of the employer, acted entirely reasonably in respect to the applicant’s complaint about underpayment of wages/increase in hours of work.

[36] The final two dot points of the applicant’s complaints related to conduct that he has characterised as bullying in the workplace and/or retaliation in response to the pursuit of workplace rights. The particular events that were identified as providing the basis for action that constituted workplace bullying and/or retaliation in response to pursuit of workplace rights, involved; the exchange between the applicant and Ms Ramzan on 27 August 2014; the subsequent exchange between those two individuals on 19 March 2015; and what the applicant described as the “binning” of his submissions, which was formalised by way of Ms Ramzan’s April 2015 critique of the applicant’s final draft report.

[37] An examination of the evidence of each of these identified events revealed that the actions of Ms Ramzan could not be construed to represent repeated unreasonable behaviour towards the applicant. In respect to the first event on 27 August 2014, the applicant was granted the urgent leave that he sought, and upon his return to work on 8 September 2014, he raised no complaint at that time as to any residual concerns which had given rise to his need for the urgent leave and engagement with the employer’s EAP.

[38] The second event of 19 March 2015, once again involved the applicant being granted the particular leave and work from home arrangements that he sought. Upon analysis, the approach and conduct of Ms Ramzan were hardly the actions of an employer who was bullying an employee. Instead, on this occasion, the applicant was, at the very least, rude and discourteous towards Ms Ramzan.

[39] The third event involved Ms Ramzan politely and diplomatically advising the applicant of deficiencies in the draft submission that he had provided. An examination of the relevant communication to the applicant 2 indicated that Ms Ramzan took considerable time and effort to provide a positive approach to the manner in which she identified the deficiencies in the applicant’s submission document. Once again, these actions were entirely inconsistent with conduct of an employer who was behaving unreasonably towards an employee.

[40] On any objective analysis of the evidence that was provided about the alleged bullying behaviour of Ms Ramzan, there could be no finding made that she acted unreasonably towards the applicant. Ms Ramzan could not grant the applicant’s request for additional hours of work, and although this clearly frustrated and displeased the applicant, it did not represent unreasonable conduct. Similarly, it was reasonable for Ms Ramzan to reject what she believed to be a deficient report, indeed it was her responsibility as the employer’s Executive Officer, to exercise a final determination over any material that would be submitted to third parties or otherwise published in the name of the employer.

[41] A consideration of the totality of the evidence, particularly including that provided by the testimony of the applicant during cross-examination, has unequivocally established that he was genuinely unable to cope with a number of different stresses which related to both the workplace and other factors, and which, in totality, resulted in him “… coming apart at the seams with stress…” 3. Further, the applicant conceded that the crux of his complaint against the employer involved what he believed to be “…being overworked…”4

[42] The unfortunate circumstances that beset the applicant should not be assumed to represent any failure or shortcomings on his part. Modern workplaces are too frequently highly stressful environments. Individuals have different mechanisms and capacities for dealing with excessive stress which is experienced in the workplace. There should be no criticism made of any person simply because they have been unable to find a mechanism or other means to avoid the harmful health impacts that can be created by excessive stress. Whether in the particular circumstances of this case, the health impacts suffered by the applicant can be properly attributed to workplace factors, is a matter that may be determined elsewhere, and with the benefit by appropriate medical expert opinion, rather than by this Commission in these proceedings.

Conclusion

[43] This matter has involved an application for a stop bullying Order. The Commission has been required to examine and evaluate all of the evidence so as to determine whether or not the applicant was a worker bullied at work.

[44] Having regard for the terms contained in s. 789FD of the Act, a careful and detailed consideration of all of the evidence has not provided for any basis to find that the employer or Ms Ramzan specifically, repeatedly behaved unreasonably towards the applicant, and that that behaviour created a risk to health and safety. Consequently, the Commission has not been satisfied that the applicant was a worker that had been bullied at work.

[45] Therefore, as the requirements of s. 789FF of the Act have not been met, the Commission cannot make a stop bullying Order. The application is accordingly dismissed.

COMMISSIONER

Appearances:

Mr G Samuel, appearing unrepresented.

Ms S Ryan, solicitor of HWL Ebsworth Lawyers appeared for the employer and Ms Ramzan.

Hearing details:

2016.

Sydney:

March, 17

April, 18.

 1   Exhibit 17.

 2   Exhibit 24 – Annexure AR-24.

 3   Transcript @ PN974.

 4   Transcript @ PN975.

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