Mr Karan Kumar v Mission Australia T/A Mission Australia
[2023] FWC 1324
•22 JUNE 2023
| [2023] FWC 1324 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute; s.789FC - Application for an order to stop bullying
Mr Karan Kumar
v
Mission Australia T/A Mission Australia
(C2023/1261)
Mr Karan Kumar
v
Joanne Crossley, Sarahanne Moody, Mission Australia
(AB2023/106)
| COMMISSIONER RIORDAN | SYDNEY, 22 JUNE 2023 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]; Application for an FWC order to stop bullying – Applications dismissed.
The Dispute Application
On 9 March 2023, Mr Karan Kumar (the Applicant) lodged an application under s.739 of the Fair Work Act 2009 (the FW Act), raising a dispute relating to various matters, including penalty rates, call out allowance and overtime payments, under the Mission Australia Service Delivery Enterprise Agreement 2016-2019 (the Agreement) (Dispute Application). The Respondent to the application was Mission Australia (the Respondent).
The Dispute Application was originally listed for a Conference by Telephone on 20 March 2023. However, ahead of the Conference, the Applicant wrote to my Chambers seeking a two-week adjournment to allow for him to have internal discussions with the Respondent.
The Dispute Application was relisted for Conference by Telephone on 4 April 2023, however, on 3 April 2023, the Applicant wrote to Chambers seeking a further two weeks’ adjournment to allow his internal discussions with the Respondent to continue.
The Dispute Application was relisted for Conference by Telephone on 18 April 2023.
The 18 April 2023 Conference proceeded. The Respondent was granted a period of two weeks to provide a written response to matters raised by the Applicant.
The Respondent provided this response and update on 2 May 2023 and sought that the matter be relisted for Conference.
The Antibullying Application
On 16 April 2023, the Applicant lodged an application under s.789FC for an order to stop bullying at work (Antibullying Application) (the Dispute Application and Antibullying Application are jointly referred to as ‘the Applications’). The Respondent to the Application was Mission Australia (the Respondent), and the persons named were Ms Joanne Crossley, the Respondent’s National Payroll Manager, and Ms Sarahanne Moody, the Respondent’s Industrial Relations Business Partner.
In his Antibullying Application, the Applicant relied on the dispute issues he had raised with the Respondent under the Agreement, and a failure of the Respondent to properly resolve his concerns as being the relevant ‘bullying behaviour’. The Applicant stated in his Form F72 application that:
“It is very stressful to deal with payroll as I am doing a very busy job is a very difficult environment in Centre Australia where things are different that other part of Australia.
…
I am keep thinking on these issues all the time which is impacting my wellbeing.”
By way of remedy for the Antibullying Application, the Applicant ought:
“Create a timeline to resolve policy for payroll.
Review SDEA.
Anti-discrimination policy.
Anti- Bullying Policy.
Review Mission Australia “speak up and speak out statement” .
Written apology and resolve my pay queries urgently.
Provide written response to the questions I have raised around on call and SDEA clauses.
Provide written feedback why staff on the same classifications are getting paid differently.
Provide written response why payroll is interpreting the SDEA clauses differently which are not in the favour of staff.”
In its Form F73 – Employer Response, the Respondent objected to the Applicant’s Antibullying Application on the ground that the alleged bullying was reasonable management action, carried out in a reasonable manner. Further, the Respondent denied that the allegations raised by the Applicant met the definition of a worker being “bullied at work” within the meaning of s.789FD(1) of the FW Act. The Respondent noted that the face of the Applicant’s Antibullying Application calls for resolution of his payroll queries, which it submitted it has been actively engaged in doing, in an appropriate manner.
Notwithstanding its objections to the Antibullying Application, the Respondent provided in its Form F73 response that the Applicant would have no further direct contact with the named persons, Ms Crossley and Ms Moody.
Conference in Darwin
The Antibullying Application was allocated to my Chambers on 28 April 2023. In light of my intended travel to Darwin, which I had scheduled for the week of 29 May – 2 June 2023, and the Respondent’s request that the Dispute Application be relisted for Conference, I jointly listed the Applicant’s Applications for an in-person Conference at the Commission’s premises in Darwin on 31 May 2023.
At 4.30pm AEST on Monday, 29 May 2023, the Applicant wrote to my Chambers advising that he had booked an appointment to obtain legal advice on 7 June 2023 and accordingly sought an adjournment of the in-person Conference.
The Respondent’s representative wrote to my Chambers on that same date, objecting to any adjournment of the in-person Conference on the basis that the Respondent’s attendees had flights booked for early the next morning to facilitate their attendance at the Conference, which could not be rescheduled at late notice.
On 30 May 2023, my Chambers responded to the parties, confirming that in light of the travel that had been booked to facilitate the Conference, the Conference would be proceeding on Wednesday, 31 May 2023.
The Applicant sent through four further emails on 30 May 2023, requesting that I reconsider my decision and grant him an adjournment of the Conference. My Chambers responded to each of these four emails confirming that the Conference would be proceeding in Darwin on Wednesday, 31 May 2023 as previously advised. I also asked my Associate to confirm to the Applicant as follows:
“It is only a Conference not a Hearing.
If the Applicant needs to seek an adjournment to seek legal advice further to Wednesday’s conference then that is what we will do, but we will certainly start on Wednesday as scheduled.”
Notably, the Applicant’s fourth and last email on 30 May 2023 stated:
“Dear Commissioner,
Thank you for your email.
Since my request has been refused and not being accommodated as requested to seek the legal advice before attending the conference.
I announce that I will not be present in the conference as scheduled.
The reason of my absence is referring to the correspondences that have been requested from yesterday till now.
I will be keen to receive your response if you decide it to be listed as I requested earlier please.
Thank you for your understanding and cooperation in this matter.
Regards
Karan”
I requested my Associate to respond to the Applicant, including as follows:
“The Commissioner notes that the matter is formally listed and you are expected to be in attendance.
The Commissioner notes that if you fail to attend, the matter(s) may be dismissed in your absence.”
The Applicant did not send any further correspondence ahead of the Conference on 31 May 2023.
The Respondent attended the Commission offices in Darwin on 31 May 2023. The Applicant failed to attend the Commission or to otherwise contact the Commission on that date.
My Associate attempted to contact the Applicant by telephone, however, the Applicant did not answer.
Application to Dismiss
On 2 June 2023, the Respondent filed a Form F1 application seeking that the Applications be dismissed pursuant to s.587 of the FW Act (Application to Dismiss). In its Form F1 application, the Respondent noted that it had made arrangements for the Applicant’s flights and accommodation to facilitate his attendance at the in-person Conference on 31 May 2023. Further to a question from me by email, the Respondent stated that the Applicant would not have suffered any financial impediment in attending the Conference in Darwin on 31 May 2023:
“The Respondent is not aware of any financial impediment suffered by the Applicant in relation to attending the conference listed before Commissioner Riordan on 31 May 2023 in Darwin (Conference). The Respondent says this is the case where it arranged and paid for the Applicant's flights and accommodation to attend the Conference. This included:
·making travel arrangements including booking and payment for flights to and from Darwin to Alice Springs;
·booking two nights of accommodation for the period Tuesday 30 May 2023 to Thursday 1 June 2023 at Oaks Darwin Elan Hotel; and
·ensuring that the Applicant would be paid as normal while he attended the Conference in Darwin for the period Tuesday 30 May 2023 to Thursday 1 June 2023 and that he was not required to take leave for this period. This message was provided to the Applicant by Dr Paul Royce, Regional Leader.
…
The Respondent has at all times ensured that the Applicant was not disadvantaged and despite knowing the Respondent had made these significant arrangements for the Applicant's attendance at the Conference.”
The Applicant filed his response to the Respondent’s Application to Dismiss on a Form F1 application (Form F1 Response). In his Form F1 Response, the Applicant sought relief as follows:
“Fair Work Commission matters - C2023/1261 - Kumar v Mission Australia and AB2023/106 be requested to reschedule the conference (after the 7th of June 2023) due to seeking legal advice.”
The Applicant stated and relied on the following:
“The Applicant reasonably complied with informing the Commission 2 days before the conference...
The Applicant attempted to explain the circumstance of seeking legal advice...
The Applicant further attempted to seek Commission’s advice, but unfortunately, the respondent’s representatives interfered and presented with unwanted dialogues...”
The Applicant further wrote to Chambers raising the following concern:
“I want to make a further disclosure that Ms Moody initiated a meeting with me on teams on 17-03-2023 and mentioned few times that, She previously worked in the fair work commission, "Mr Commissioner (Riordan) and her Associate (Savannah) are very nice people and well known to her. She can request them for the adjournment," which made me (the applicant) a bit uncomfortable.
So, I (the applicant) now guessed that something has gone serious with my conference this time, and the outcome may be against it without looking at the application that has reasonable prospects of success.”
The Applicant was granted a further period of time until 13 June 2023 to provide any further submissions or materials he sought to rely on in response to the Respondent’s application to dismiss his applications. The Applicant filed his further response on 12 June 2023.
In his response of 12 June 2023, the Applicant again raised his concern regarding Ms Moody’s comments to him in a meeting on 17 March 2023. The Applicant stated:
“17th March, 2023, during the meeting, Ms Moody acknowledged that the Applicant should not have left isolated since last year 2022, a case manager should have been assigned by the organisation a while ago to resolve the raised issue. Ms Moody confirmed that she will support the Applicant and resolve the issues if the adjournment could happen from the FW conference (was listed for Monday the 20th March 2023). Ms Moody offered the Applicant to assist him for adjournment. She made a disclosure that she worked for the Fair work commission and knows Mr Riordan (Commissioner) and Ms Savannah (Commissioner’s associate) are lovely people. The Applicant felt uncomfortable and anticipated for adjournment request by himself.”
The Applicant raised various concerns regarding the Respondent’s methods and lack of timeliness of communications with him about the resolution of his Dispute and Antibullying applications. The Applicant annexed various email communications between himself and the Respondent relating to attempts to resolve his applications.
As to his failure to attend the Conference in Darwin on 31 May 2023, the Applicant submitted:
“At no time the Applicant has refused to engage with any meeting or conference from the beginning till the last. The Applicant has strived for the best and accepted all internal or external resolutions to resolve the issues. but no successful outcome was provided time to time from MA representatives.
Whatever, whenever, or whoever approached the Applicant for internal or external discussion It was welcomed and provided 100% commitment to resolve the issues but unfortunately no successful outcome is delivered.”
The Applicant submitted that the Respondent has failed to provide him with a fair process in trying to resolve the Dispute Application:
“The respondent were/are aware of their actions of not resolving the matter - C2023/1261 - Kumar v Mission Australia. The boundaries of power created by the Mission Australia’ representatives administered failure of Lawfulness, Good faith, Rationality and Fairness at all stages in above said matter.”
The Applicant restated the outcomes he seeks for his Dispute and Antibullying applications, however, did not otherwise specifically address the issue of his non-attendance at the 31 May 2023 Conference in Darwin.
In response to the concerns raised by the Applicant regarding Ms Moody’s comments about the Fair Work Commission, the Respondent provided clarification as follows:
“In section 2(II) of the Form F1 and in the 5 June Email, the Applicant alleges that on 17 March 2023, Ms Sarahanne Moody disclosed to the Applicant that Ms Moody has previously worked for the Fair Work Commission (Commission).
We are instructed that Ms Moody did not make the asserted comments to the Applicant. Ms Moody has never been employed by the Commission in any capacity.
Ms Moody did meet with the Applicant on 17 March 2023 to discuss the Applicant's claim. During this meeting, Ms Moody expressed that she was familiar with the Commission's processes as part of her role as Industrial Relations Business Partner and suggested that the parties could possibly request an adjournment in order to the resolve the dispute internally. Ms Moody did not make any assertions that she had a personal connection with or knew the Commissioner or his Associate.”
The Applicant provided a further response in relation to this concern, stating that he has:
“…relied on the true version of the discussion, which was disclosed by Ms Moody (Industrial Relations Business Partner) while interacting with the Applicant. However, the responder has the right to challenge the Applicants submission section 2(II), but it is a perversion and establishes some contemporary elements to review the accountability of the responder.”
Consideration
Section 587 of the Act provides:
“587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
The Applicant’s Antibullying Application does not raise any behaviours by the named persons which could be found to satisfy ‘repeated bullying behaviour’ for the purposes of the FW Act. The Applicant’s Antibullying Application appears simply to try and reagitate the s.739 dispute which was already on foot and being appropriately dealt with towards reaching a resolution. This application is a waste of time for both the parties and the Commission. It is not appropriate for an applicant to raise an Antibullying application simply because they do not like the outcome of an already listed Dispute. Such behaviour cannot be condoned.
In accordance with s.587(1)(c) of the FW Act, I find that the Applicant’s Antibullying Application has no reasonable prospects of success and should be dismissed on this basis.
As to the Applicant’s Dispute Application, I have taken into account that the parties have been negotiating in good faith to resolve the matter. I note at the conclusion of the Conference on 18 April 2023, there were only three outstanding issues between the parties. The correspondence from the Respondent on 2 May 2023 clarified the reasons for the Respondent’s position on these three outstanding issues.
I have taken into account that the Respondent arranged for relevant persons to travel from interstate to attend the 31 May 2023 Conference in Darwin, including arranging and paying for the Applicant’s round trip from Alice Springs to Darwin, two nights’ accommodation, as well as ensuring that the Applicant was to be paid his normal salary for this time.
Despite these arrangements being made, the Applicant failed to attend the Conference in Darwin.
In accordance with my Chambers’ correspondence of 30 May 2023, the Applicant was on notice that if he failed to attend this formally listed Conference, his Application(s) may be dismissed.
I note that the Applicant appears to have raised an issue of potential bias based on his comment that Ms Moody allegedly previously worked for the Commission and is known personally to both myself and my Associate. My Chambers has contacted the HR Department of the Commission. There is no record of Ms Moody having ever worked at the Commission. Ms Moody is not known to me, nor, I am advised, to my Associate. It would appear that the Applicant’s recollection of this conversation is a figment of his imagination.
I am satisfied and find that the correspondence from the Respondent on 2 May 2023 appropriately and accurately explains the disputed provisions of the Agreement. If the Applicant disputed these interpretations, then he should have attended the Conference on 31 May 2023, even by telephone, to put his argument. The Applicant was warned that his non-attendance may lead to his Applications being dismissed. I am satisfied that the remaining components of his Dispute notification are frivolous.
The Applicant had an appointment to seek legal advice on 7 June 2023. I am unable to ascertain any alteration to the Applicant’s argument post this date. I have no evidence that this appointment actually occurred. I have formed the opinion that the Applicant’s behaviour in this matter is nothing more than an attempt to frustrate the Respondent in relation to his grievances.
For the reasons stated above, I have determined that it is appropriate to dismiss the Applicant’s Dispute Application.
The Applications are dismissed.
Orders to this effect will issue separately to this Decision.
COMMISSIONER
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