Mr Ronald Myors
[2024] FWC 2744
•2 OCTOBER 2024
| [2024] FWC 2744 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Mr Ronald Myors
(AB2024/506)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 2 OCTOBER 2024 |
Application for an FWC order to stop bullying – application dismissed
Mr Ronald Myors is, and has been for some years, an Uber driver. By an application dated 4 July 2024 (including a Statement and Declaration attached to the application) (Application), Mr Myors identifies Rasier Pacific Pty Ltd T/A Uber (Rasier) as his employer/principal and contends that he has been bullied at work by Dara Khosrowshahi, CEO of Uber, Okesh, Uber Support Agent, and Sarah, Uber Support Agent. Mr Myors’ allegations relate, in part, to his contention that Uber has been conducting covert video surveillance of him and his family.
Rasier contends that the proceedings ought to be dismissed for want of jurisdiction (in accordance with the implied power referred to in Coles Supply Chain Pty Ltd v Milford[1]) because there is no behaviour on the face of the Application, or in the materials filed by Mr Myors in the Commission, which meets the description of a person having been ‘bullied at work’ under s 789FD of the Fair Work Act 2009 (Cth) (FW Act) and there is no apparent connection with any alleged behaviour that may be relied on as bullying behaviour (which is denied) with the three individuals named in the Application. In the alternative, Rasier contends that the Application should be dismissed because it has not been made in accordance with FW Act (s 587(1)(a)) and/or the Application has no reasonable prospects of success (s 587(1)(c)). As a consequence, Rasier contends that the Commission has no jurisdiction to make any order under s 789FF(1) of the FW Act.
On 29 July 2024, I made the following directions:
1. By 4pm on 12 August 2024, Mr Myors must file and serve all the witness statements, submissions and documents he wishes to rely on in support of his Application.
2. By 4pm on 26 August 2024, Rasier Pacific Pty Ltd, Sarah Awwad, Okesh Devatwal and Dara Khosrowshahi must file and serve any submissions any of them wish to rely on in support of their contention that the Commission does not have jurisdiction to make any order under section 789FF(1) of the FW Act and/or Mr Myors’ application for an order to stop bullying should be dismissed.
3. By 4pm on 9 September 2024, Mr Myors must file and serve any submissions he wishes to rely on in opposition to the respondents’ contention that the Commission does not have jurisdiction to make any order under section 789FF(1) of the FW Act and/or Mr Myors’ application for an order to stop bullying should be dismissed.
4. By 4pm on 16 September 2024, Rasier Pacific Pty Ltd, Sarah Awwad, Okesh Devatwal and Dara Khosrowshahi must file and serve any submissions they wish to rely on in reply to any submissions filed and served by Mr Myors in accordance with direction 3 above.
5. On receipt of material in accordance with directions 1 to 4 above, Deputy President Saunders will issue a decision in relation to the respondents’ contention that the Commission does not have jurisdiction to make any order under section 789FF(1) of the FW Act and/or Mr Myors’ application for an order to stop bullying should be dismissed.
Mr Myors and Rasier filed the following material in accordance with my directions:
(a)On 4 August 2024, Mr Myors filed a document entitled ‘Speech’, which is effectively a combined statement and submission by Mr Myors, together with two zip folders containing documents;
(b)On 26 August 2024, Rasier filed a written submission in relation to its jurisdictional objections;
(c)On 28 August 2024, Mr Myors filed a submission in response to Rasier’s submissions concerning its jurisdictional objections, together with eight zip folders containing documents; and
(d)On 13 September 2024, Rasier filed written submissions in reply in relation to its jurisdictional objections.
I have read and considered all the material filed by Mr Myors and Rasier.
Statutory framework
Section 789FF of the FW Act confers on the Commission a broad power to make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent a worker from being bullied at work.
In order for the Commission to exercise its power under s 789FF of the FW Act to make any order it considers appropriate in respect of the Application, there are three conditions that must be met:
(a)first, Mr Myors must have made an application under s 789FC of FW Act, which provides that “a worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF”;
(b)secondly, the Commission must be satisfied that Mr Myors has been bullied at work by an individual or group of individuals; and
(c)thirdly, the Commission must be satisfied there is a risk that Mr Myors will continue to be bullied at work by the individual or group.
Section 789FD of the Act sets out the test for establishing whether a person has been bullied at work. It provides as follows:
“(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 behaved 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.”
The test is objective. What is reasonable is a question of fact. Behaviour is unreasonable if a reasonable person, having regard to all the circumstances, may consider it to be unreasonable.[2]
It is apparent from s 789FD of the FW Act that only individuals can engage in bullying behaviour. The FW Act does not envisage an employer (in an employment relationship) or a principal (in a contracting relationship) engaging in bullying behaviour unless they are an individual. However, if the Commission is satisfied that a worker has been ‘bullied at work’ within the meaning of s 789FD and it is otherwise appropriate to do so, the Commission can make orders to stop bullying which are directed at the individuals involved in the bullying behaviour and the worker’s employer or principal.
The expression ‘repeatedly behaved unreasonably’ in s 789FD(1)(a) of the FW Act is to be interpreted and applied with reference to the policy or purpose of Part 6–4B of the FW Act, which is to establish a mechanism by which the bullying of workers at work may be stopped.
A one-off incident will not be a sufficient basis for the making of an application to the Commission.[3] Provided there is more than one occurrence, there is no specific number of incidents required to meet the condition of ‘repeated’ behaviour, nor does the same specific behaviour have to be repeated.[4] The statutory provision requires repeated unreasonable behaviour by the individual or a group of individuals towards the applicant worker or a group of workers to which the applicant belongs.[5]
In Mac v BOQ,[6] Vice President Hatcher (as his Honour then was) provided (at [99]) the following examples of conduct “which one might expect to find in a course of repeated unreasonable behaviour that constituted bullying at work”:
“… intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination.”
Section 789FD(2) of the FW Act provides that a worker will not be bullied at work if the alleged behaviour constitutes reasonable management action carried out in a reasonable manner.
The Explanatory Memorandum relevantly provides as follows in relation to s 789FD(2) of the FW Act: [7]
“New section 789FD – When is a worker bullied at work?
…
111. The Committee also found that balanced against this definition is the need for managers to be able to manage their staff. New subsection 789FD(2) is included to clarify that reasonable management action when carried out in a reasonable manner will not result in a person being ‘bullied at work’.
112. Persons conducting a business or undertaking have rights and obligations to take appropriate management action and make appropriate management decisions. They need to be able to make necessary decisions to respond to poor performance or if necessary take disciplinary action and also effectively direct and control the way work is carried out. For example, it is reasonable for employers to allocate work and for managers and supervisors to give fair and constructive feedback on a worker’s performance. These actions are not considered to be bullying if they are carried out in a reasonable manner that takes into account the circumstances of the case and do not leave the individual feeling (for example) victimised or humiliated.”
The expression ‘management action’ is not confined only to managerial decisions but encompasses a wider range of conduct or behaviour which affects an employee, including such things as performance and disciplinary matters, the allocation of work and the way in which work is to be carried out.[8]
To determine whether the action constitutes ‘reasonable management action’ it is necessary to undertake “an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time”.[9] The test for reasonable management action is whether the “management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’.”[10] I adopt Commissioner Hampton’s explanation of these concepts in GC (at [56]):
“In general terms this is likely to mean that:
· management actions do not need to be perfect or ideal to be considered reasonable;
· a course of action may still be ‘reasonable action’ even if particular steps are not;
· to be considered reasonable, the action must also be lawful and not be ‘irrational, absurd or ridiculous’;
· any ‘unreasonableness’ must arise from the actual management action in question, rather than the applicant’s perception of it; and
· consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances.”
As to the power to dismiss an application for orders to stop bullying under s 587(1)(a) of the FW Act on the basis that it has no reasonable prospects of success, in Spencer v The Commonwealth of Australia,[11] the majority (Hayne, Crennan, Kiefel and Bell JJ) of the High Court of Australia considered the phrase, ‘no reasonable prospect’ in the context of s 31A of the Federal Court of Australia Act 1976 (Cth). That section relevantly provides:
“(1) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.”
In that case, their Honours said:
“In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word “reasonable”, in the phrase “no reasonable prospect”, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a “frivolous”, “untenable”, “groundless” or “faulty” claim.
Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to “no reasonable prospect” can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase “just and equitable” when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.”[12]
The observations in Spencer are apt to apply to the exercise of power under s 587(1)(c) of the FW Act.
Summary of submissions and evidence
Material provided by Mr Myors on 4 August 2024
The ‘Speech’ filed by Mr Myors on 4 August 2024 provides, in part, the following description of the alleged bullying behaviour:
“Sarah Awwad, Okesh Devatwal and Dara khosrowshahi made a conscious decision to avoid their Commitment to their duties under work health and safety”. This would be the “unreasonable behaviour.”
The Bullying;
Sarah Awwad, Okesh Devatwal has intentionally decided not to provide their services, and/or refused to accept my services as required by workers under a ‘PCBU’ regarding an incident report. By refusing to accept and acknowledge the severity of my incident report inquiry, as another worker operating as a contractor on a service agreement with Raiser Pty Ltd trading as ‘Uber’. Sarah Awwad, Okesh Devatwal bullied me, from a worker to another worker.Dara khosrowshahi intentionally decided not to provide a ‘Duty of Care’ to me, through his services in managing his duties as required by an ‘officer’ under a ‘PCBU’.
By delegation through Raiser Pty Ltd trading as ‘Uber’, Dara khosrowshahis’ mismanagement the training of Uber support, and the lack of commitment to enforce the compliance of policies and procedures. Previous Uber support agents and the agents Sarah Awwad, Okesh Devatwal were allowed to continue conducting the reoccurring bullying against me, which was not addressed at any point, even when Dara khosrowshahi was notified by a General Protections Case through the Fairwork Commission by me.
Sarah Awwad, and Okesh Devatwals' refusal of my incident report, and their failure to provide a service, and/or refuse my service, proves a lack of adherence to procedures and commitment to their duties, which has a proven pattern of reoccurring bullying by management of their training by the chief executive officer, Dara khosrowshahi failed to manage his obligation of a ‘Duty of Care’ through the services of his workers that were delegated to Raiser Pty Ltd trading as ‘Uber’, ‘Uber support’, to carry out his obligations under work health and safety.
Sarah Awwad, Okesh Devatwal and Dara khosrowshahi altered the position of the independent contractor to the independent contractor’s prejudice, who is a “Another worker” under the Work Health and Safety Act 2011.
Sarah Awwad, Okesh Devatwal and Dara khosrowshahi did not provide a service, and/or refused my service. Services must comply with duties under work health and safety when operating as a ‘PCBU’. These individuals who are officers and workers under work health and safety, intentionally decided not to provide their services to me. These individuals have intentionally not provided a ‘Duty of Care’, and have injured and risk the safety of another worker (Myself), which I would otherwise be entitled to, under Work Health and Safety Act 2011.”
…The alleged surveillance has endangered me and members of my family. The act of supressing the incident report about the surveillance proves the intentional attempt to hide and hinder the discovery of the incident.
To hide and hinder discovery of an incident has increased my risk of safety from Sarah Awwad, Okesh Devatwal and Dara khosrowshahi actions.
This is the ‘Bullying’ towards me from these individuals. In short, all three intentionally did not provide a service to me, that I am entitled too.
The “Bullying” I have described should meet the criteria to address the Jurisdictional matter. Bullying has occurred and the Fairwork Commission has the authority to make orders, and this application should continue to a hearing.
Sarah Awwad, Okesh Devatwal and Dara Khosrowshahi have failed in their commitment to be dedicated and consistent with their promises and obligations in relation to their work health and safety duties as workers and an officer. To provide their services or accept my services in a manner conducive to a “Safework place” for another worker(myself) under the Rasier Pty ltd T/A Uber under the current service agreement. A ‘Duty of Care’ must apply to all services provided by PCBUs, in this case, it will be;
·an Officer to another worker
·a worker to another worker
The ‘Bullying actions’ for each individual are as follows:
1.The actions from Okesh Devatwal was the intentional disregard of acceptance and acknowledgement of my incident report.
This was a failure to receive a service from another worker, as a worker himself under ‘Uber’. He is meant to accept and acknowledge the receipt of my incident report. Okesh Devatwal intentionally did not provide a service from one worker to another under the Work Health and Safety Act 2011. Under my duties as an Independent Contractor (PCBU). Bylaw, I am required to address safety issues, including making safety complaints (inquiries).which is a part of my services,
2.The action from Sarah Awwad was a ‘non-response of an incident report’ after I received her initial reply from the Delivery representative Tarak Ghosh' inquiry about the issue concerning Okesh Devatwal actions.
Sarah Awwad failed to address the seriousness of the alleged surveillance to the degree required to initiate a further investigation or inquiry by other officers or workers to satisfy the requirements of her duties as a worker, which allowed the continuation of my risk of safety and injury to me. Sarah Awwad failed to provide or receive a service from one worker to another worker under work health and safety.
Under my duties as an Independent Contractor (PCBU). Bylaw, I am required to address safety issues, including making safety complaints (inquiries), which is a part of my services,
‘Okesh’ and ‘Sarahs’ actions deliberately endangered another worker by intentionally interfering with ‘The sharing of information’ between a ‘Principal & a Contractor’. If any escalation of incidents should occur with the ‘surveillance’ due to the elements of unknown and unauthorised persons conducting the activity in an illegal and potentially dangerous manner.
Okesh Devatwal, Sarah Awwad and Dara Khosrowshahi is responsible and has contributed to an unsafe workplace by not reducing ‘risk’ of injury, and under a ‘Duty of care’, risk management, due diligence (Work Health and Safety Act 2011).
3.Dara Khosrowshahi is the CEO of Raiser Pty Ltd Trading as ‘Uber’, which has failed to manage and enforce the Uber support training and the adherence of policies and procedures by Uber support agents within a reasonably practicable, “Timely manner” in relation to work health and safety. He was to provide a safe workplace for myself as an “Another worker”, a ‘Duty of care’. As an officer, he is liable and party to Uber support agents, 'Okesh Devatwal and Sarah Awwad actions of reoccurring bullying under his duties.
Dara Khosrowshahi failed to provide a service from an officer to another worker, through the actions and obligations of his workers, and that his duties are not transferred under the Work Health and Safety Act 2011.
4.The use of a “legal right” was authorised by Dara khosrowshahi, through the delegation of his legal representatives to conclude my Fairwork Commission General Protections Case. Dara khosrowshahi has aided and abetted the continuation of ‘Unreasonable behaviour’ within Uber support, thus allowing the “Bullying” to reoccur because no action was taken to remedy this behaviour after the conclusion, this is proven in the reoccurring pattern, shown
in the evidence ‘Petbarn’, ‘2023’, Okesh Devatwal and Sarah Awwad's evidence…”
Rasier’s submissions filed on 26 August 2024
Rasier submits that there is nothing in the materials filed by Mr Myors in the Commission which satisfies the description of a person having been ‘bullied at work’ under s 789FD of the Act. References are made in Mr Myors’ material to ‘repeated actions’, ‘reoccurring unreasonable behaviour’ and ‘varied adverse actions’ from Sarah, Okesh and Dara Khosrowshahi directed towards Mr Myors. However, Rasier contends that there is nothing in the material filed by Mr Myors which outlines how any alleged behaviour may be relied on as bullying behaviour.
On the face of it, Rasier submits that Mr Myors’ allegations in relation to Uber support agent Sarah appear to pertain to a series of messages between Mr Myors and Sarah in relation to allegations that Uber was undertaking covert surveillance of Mr Myors. Rasier submits that there is no connection with any alleged behaviour that may be relied on as bullying behaviour.
Rasier submits that the essence of the alleged bullying behaviour appears to arise from the assertion that Sarah failed to provide a response to the covert surveillance concerns raised by Mr Myors, that there was a delay in the response provided by Sarah or that the response provided to Mr Myors was otherwise insufficient. Rasier submits that the materials filed by Mr Myors in respect of this alleged behaviour is contradictory, including:
(a)In the Statement attached to the Application, Mr Myors outlines the response that Sarah provided to him in relation to his concern that he was being covertly surveilled. This includes that surveillance "is against Ubers' community guidelines" and "Uber takes [my] matter seriously". Mr Myors also indicates that Sarah responded to his DPR (Delivery Person request) inquiry and admits that "Sarah initiated the contact to address my DPR request".
(b)Mr Myors has also filed a screenshot titled "Additional EDoc – Sent to all recipients – SarahPage3" which captures the response provided by Sarah to his complaint of being covertly surveilled. This response confirms that the vehicle captured was not affiliated with Uber and encouraged Mr Myors to contact emergency services if he felt he was in immediate danger. Sarah also confirms that "safety is very important to us at Uber, and we do not tolerate any form of bullying, harassment or intimidation within our platform as this behaviour goes against our Community Guidelines". This was in response to a message from Mr Myors providing a photograph of a vehicle showing its number plate.
(c)Contradicting this evidence, Mr Myors also alleges that the bullying behaviour of Sarah stems from her lack of response to the complaint raised by him. This includes that "the Sarah non responsive tactic is a reoccurrence of unreasonable behaviour". Rasier submits that the message from Sarah is directly responsive and deals specifically with the issue raised. The message also suggests that Mr Myors contact the police if he is concerned. On its face, there is nothing in that response, which could be said to amount to bullying. It is, in any event, a single act by Sarah and not repeated conduct.
Rasier submits that Mr Myors’ allegations in relation to Uber support agent Okesh appear to arise in circumstances where Okesh assists Mr Myors with a fare adjustment for a trip but "fail[ed] to understand the core issue of my message" on the basis that he did not explicitly respond to a complaint regarding "potential bullying and harassment or surveillance". As a result, Mr Myors alleges that Okesh "deliberately endangered a worker (myself), and the public…". Rasier submits that there is no connection with any alleged behaviour that may be relied on as bullying behaviour.
Rasier contends that the materials filed by Mr Myors in respect of this alleged behaviour is again contradictory, including:
(a)Screenshot titled "Additional EDOC – Sent to all recipients – Okeshpage1" filed by Mr Myors as an attachment to the Application is evidence of Mr Myors contacting Uber Support in relation to an incorrect trip distance. Screenshot titled "Additional EDOC – Sent to all recipients – Okeshpage8" and "Additional EDOC – Sent to all recipients – Okeshpage9" is a response from Okesh to Mr Myors to confirm that he will be assisting Mr Myors with his concern in relation to an incorrect fare. In this response Okesh confirms that he has added a miscellaneous payment of $11.75 to reflect the correct fare for the trip.
(b)On the other hand, in the Statement attached to the Application, Mr Myors alleges that "Uber support agent Okesh deliberately ignored my complaint, and offered a bribe for silence and compliance of a safety issue". No further clarification is provided in the material filed by Mr Myors in relation to the allegations of a "bribe". This conduct is not supported by the screenshots of the messages between "Okesh" and Mr Myors.
Rasier submits that, on their face, screenshots titled "Additional EDOC – Sent to all recipients – Okeshpage2" to Screenshot titled "Additional EDOC – Sent to all recipients – Okeshpage7" are not evidence of communications between Mr Myors and Okesh, rather they are communications with other Uber support agents who are not named in this Application.
In any event, Rasier submits that Okesh responds to what he understands is the query from Mr Myors. Mr Myors does not take immediate issues with the response, although he does provide a later response concerning covert surveillance. This is then responded to by Sarah, as set out above. Rasier submits that there is nothing on the face of that exchange which amounts to bullying conduct, and is in any event conduct by a single act by Okesh, and not repeated conduct.
As to Dara Khosrowshahi, Rasier submits that, on the face of the Application, there is no direct communication at all, nor any other form of engagement between Mr Myors and the named individual Dara Khosrowshahi, CEO, who does not reside in Australia. It is not contended by Mr Myors that there is. On that basis, Rasier contends that it simply cannot be made out that Mr Myors was ‘bullied at work’ within the meaning of section 789FD(1) by Dara Khosrowshahi. Accordingly, Rasier seeks that Dara Khosrowshahi be excluded as a named individual from these proceedings.
Rasier also submits that much of the voluminous material filed by Mr Myors in support of his Application is not relevant to it.
Rasier contends that the bullying jurisdiction is simply not engaged. Accordingly, it contends that the Commission should dismiss the Application for want of jurisdiction on the basis of its implied power. In the alternative, Rasier submits that the Commission may dismiss the Application pursuant to section 587(1)(a) of the Act on the basis that it has not been made in accordance with the Act.
For the same reasons, Rasier contends that the Application should also be dismissed under section 587(1)(c) of the FW Act due to the proceedings having no reasonable prospects of success. In summary, on the face of the Application, Rasier contends that the elements under sections 789FC and 789FD are not engaged. Accordingly, the Commission could not, so Rasier contends, have any basis to make orders under section 789FF of the FW Act.
Rasier accepts that a conclusion that the Application has no reasonable prospects of success should be reached with extreme caution in circumstances where it is manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable.[13] Rasier contends that such a conclusion is open in this case. It is submitted that there is nothing which reveals any real issues of fact to be determined which would be relevant to the resolution of the substantive application – because none of the facts in issue reveal any bullying at all.[14] Rasier contends that the Application is manifestly untenable and groundless and ought to be dismissed under section 587(1)(c) of the FW Act.
Mr Myors’ material filed on 28 August 2024
Mr Myors’ submissions in response filed on 28 August 2024 provide, in part, as follows:
“‘There is Bullying.’
Dara, Okesh and Sarah intentionally did not provide their services WITH a ‘Duty of care’ under a PCBU. This is bullying behavior.
“Bullied at work” is defined in s 789FD of the Act. It requires an individual or group of individuals to repeatedly behave unreasonably towards the worker or group of workers of which the worker is a member, where that behaviour creates a risk to health and safety.”
All services provided by workers of a PCBU when engaging with ‘another worker’ must have Duty of Care to a degree as the minimum standard that allows the elimination and mitigation of risk to another, and generally to provide a safe workplace for workers. Any intentional disregard of their duties by workers when engaging their services with another worker is Bullying. This is presented in my application and outlined further in this document, and in my ‘statement’ document. and in the ‘Speech’ document.
Whilst I initially named these individuals ‘Dara, Okesh and Sarah’ in the application, throughout my evidence there are numerous other Uber support agents ‘workers’, that also did not provide their services WITH a ‘Duty of Care’. This satisfies the requirement for Bullying of an individual or group of individuals. Officer equals the individual, and Uber support agents equal a ‘Group of workers’.
This has led to reoccurring injuries of a psychological hazard due to the duration of Bullying, and at further risk of psychological hazard and risk of physical injury due to the conduct being used in surveillance, as previous explained. This satisfies the requirement for “a risk to health and safety”.
These individuals Dara, Okesh and Sarah and the other group of workers (the other agents as seen throughout the my evidence) have prejudiced me, I am entitled to a safe workplace under the work health and safety act. The use of discretionary non adherence (the Bullying) to their procedures by these workers and an officer are apart of a PCBU – “Uber”, which is a ‘Principal’ in relation to me, I am an Independent Contractor on a Portier Pacific agreement – ‘Classed as Another worker or out worker’. This satisfies the requirement for, ‘of which the worker is a member’.
I have met the requirements needed to engage the Jurisdiction of the Fairwork Commission, the Fairwork Commission has the power to make orders, and my case has a reasonable chance of success due to the reoccurring evidence of Bullying that has been defined(as explained below), which is;
“Intentionally did not provide their services WITH a ‘Duty of care’’,All the evidence provided when combined, proves pieces of a continuum, that the ‘individual’ Dara Khosrowshahi has mismanaged the ‘Group of workers’ that were involved in conducted bullying against me.
…At this point in time, I will add more evidence;
·‘ACCC’,
·Uber demand letter 2019
·‘False Flagging 2017’,
·‘Uber Sham enforcing’,
·System Account Termination December 2019’,
·‘3rd Party training,
·Skimming.
·‘Failed Delivery’
This evidence was part of my General Protections case.
On the Prima Facie, the evidence proves that Raiser Pty Ltd or Portier Pacific trading as Uber, under the direction of Dara Khosrowshahi and his ‘group of workers’ were conducting questionable actions against me, this was (and not limited to); coercion to extort funds, misrepresent to exploit funds, or additional means of removal from the service agreement by threats or attempts of threats by false accusation against me.This evidence gives weight to the validity of my Declaration form and does prove that an establish history of allegations is true. That workers were not adhering to procedures and/or policies that were inline with work health and safety, and that a continuation of Bullying existed and still exists.
This also proves discretionary adherence (Bullying) by workers, that was used to subvert or halt discovery of incidents to cover for these questionable actions. Discretionary adherence (Bullying) was also used by workers as a means to apply psychological pressure to force voluntary removal from the Uber platform (To isolate a worker by ignoring complaints and incident reports) or forced removal due to attempting to, or file an incident report(consequences as mentioned in my Declaration form and shown in Petbarn, False Flagging, System Account Termination December 2019’).
The covert surveillance is a continuation of the questionable actions conducted by Uber as shown throughout my evidence. The discretionary adherence by Uber support agents Okesh, Sarah and now ‘Ayush’ (See evidence ‘Failed Delivery’) follow this pattern of subversion and/or halting the discovery of Ubers’ questionable actions. These questionable actions are illegitimate and contravene work health and safety which needs a thorough investigation to expose the depths of Ubers’ or their affiliates’ involvement. I attempted to notify regulatory bodies such as SafeworkNSW, and other government agencies such as the ACCC, with no success.
Whilst documentation was provided in the Zip files that explained the evidence. The underlying issue is that the workers of Uber support did not provide a service with a ‘Duty of Care’, to eliminate or mitigate the risk of safety to me. I will outline the reoccurring bullying here, to prove my case has a reasonable chance of success.
Evidence ‘PetBarn’
Threats of Fraud against my account during this filing of my incident report by an unknown worker or officer of Uber support proves either a worker and/or an officer, either in person and/or by management a system(algorithm), intentionally did not provide their services WITH a ‘Duty of Care’. This is one count of ‘Bullying’.Evidence ‘2023’
This is a conversation between myself and Uber support; Upali J, Wee Remigio, Lavneet K, Tushar S, Clarissa, Mansi, Fahad K, Gelle, Ankasha and James from Community Operation.These ‘Group of workers’, which are; ‘Upali J, Wee Remigio, and Clarissa’. Intentionally delayed and Interfered with an appeals process by attempting to overrule other workers of Uber support, to force removal of me from the platform. This is clear discretionary adherence to their procedures.
This evidence proves a group of workers and/or an officer, either in person and/or by management, intentionally did not provide their services WITH a ‘Duty of Care’. This is another count of ‘Bullying’ behaviour.
Evidence ‘3rd Party training’
This is a conversation between myself and Uber support; Christian S, Gerwin C and Paul John S.The 3rd Party training was a coercion to extort money, and to apply pressure on me, not to make future incident report or any complaints – Compliance, which is a form control.
Apart from contravening work health and safety, this is illegal under the Cybercrimes Act. Coercing money across a digital platform, this follows a similar circumstance of Bribery in the Okesh evidence.
The evidence proves a ‘group of workers and/or an officer, either in person and/or by management, intentionally did not provide their services WITH a ‘Duty of Care’, and this ‘Bullying’ has been going on for years (See date of incident). This is another count of ‘Bullying’ behaviour.
Evidence ‘Uber Sham enforcing’
This is correspondence between myself and Uber, and provides proof that Uber did try and control how I conduct my services to some extent. The ability to ‘Decline’ job requests is now allowed on their platform, where job requests can be declined without consequence. However, in the early years 2017- 2019*, Uber enforced control over a contractor.Uber under Dara employed service agreements, but used a form of soft control as shown in the evidence, in an attempt to apply pressure into accepting all job requests, if I did not accept the job requests I did face consequences as outlined in my declaration, which was threats of termination, shadow ban, removal of incentives and promotions.
The evidence ‘Uber Sham enforcing’ proves a worker and/or an officer, either in person and/or by management, intentionally did not provide their services WITH a ‘Duty of Care’. When employing this notification against me. This is another count of ‘Bullying’ behaviour.
Evidence ‘Skimming’
This is multiple conversations between myself and Uber support; Clark, John Levin T, Bethany Grace P, Ramon, Carmille, Joshua M, Carolyn R, Paul John S, Martie Louise B, Ghe, Celica Jane L, Rochelle Anne S, Carina F, and Beryl O.Each one of the conversations that had extra money recalculated and added, proves that the Boost incentive promotion was not being paid in full (which was explained in my Declaration form).
This form of ‘skimming’ of funds, cycled on and off (intermittently), and was repeatedly notified to Uber by me to stop skimming of my funds, which I was entitled to.
This is a misrepresentation of a service which is similar to the ‘ACCC’ evidence. This misrepresentation also prejudiced me, as I would be entitled to this promotion in full. (I do believe this was used against other drivers).
The Boost promotion was ‘retired’ in 2023, according to an Uber message I received.
It is unknown if any Uber workers forwarded this issue to their managers or officers, but the issue was not addressed by either Uber support workers or officers, including Uber legal.The evidence proves either workers and/or officers, either in person and/or by management, intentionally did not provide their services WITH a ‘Duty of Care’. This is another count of ‘Bullying’ behaviour.
Evidence ‘False Flagging 2017’ and ‘System Account Termination December 2019’
By not removing a contravening algorithm which is still in-use by Uber support (See 2023 evidence Page 4’), that was used to apply a psychological hazard as unnecessary stress by threatening my account, this evidence proves either workers and/or officers, either in person and/or by management, intentionally did not provide their services WITH a ‘Duty of Care’.Evidence ‘Failed delivery’
In the newest evidence, ‘Failed delivery’. The Uber support agent ‘Ayush’ that I initially contacted to discuss and report an incident regarding a ‘failure of delivery notification’ that was sent to me by Uber.An issue has occurred with either ‘Ayush’ or the specialist team, in which they intentionally did not respond and allowed the closure of the conversation. (This proves the fact that closing a conversation to halt an inquiry about an incident exists).
I had to make another Delivery Person Request through the ‘DPR’ form to have this matter addressed, which I received a response from a Community Operations agent ‘Priayanka’.
The discretionary adherence by the worker ‘Ayush’ or the specialist (whomever they maybe), did not respond to the conversation, and by ignoring the incident report proves the fact that incorrect training of discretionary adherence to procedures exist amongst a ‘group of workers’ in Uber. This is proven by Sarah Awwad actions and Uber support agents’ actions in the ‘2023’ evidence.
As I stated in my Declaration form, which I will cite;
‘If there is no incident report, there is no problem’,
This pattern of discretionary adherence, proves incorrect instructions have been part of their Uber support training, that have been authorised by officers, and which officer/s such Dara Khosrowshahi because no enforcement to change the discretionary adherence to procedures.This evidence proves workers and/or officers, either in person and/or by management, intentionally did not provide their services WITH a ‘Duty of Care’. This is another count of ‘Bullying behaviour’.
Even during a Fairwork Commission order to stop bullying, the workers under Dara Khosrowshahi will not change their adherence to procedures until someone makes them, and why orders to stop the bullying must be made by the Fairwork Commission. There is a clear issue of discretionary adherence to Ubers procedures by workers and no enforcement of Ubers Policies by an officer such as Dara Khosrowshahi which is still prolonging the psychological hazard of isolation and risk of safety due to the surveillance.
I reiterate that these individuals and/or ‘Group of workers’ prejudiced me, by intentionally not providing a service with a Duty of Care, this would be Bullying towards another worker, and that the Fairwork Commission has the authority to make orders.
…My general protections case was to prove Uber, under the guidance of C.E.O Dara Khosrowshahi, that Dara used legal loopholes with Australian legislation to exploit contractors by wage theft of their minimum standard, whilst conducting questionable actions as explained in my evidence and which I was subjected to. The question remains for the Fairwork Commission; has Uber under the guidance of C.E.O Dara Khosrowshahi, still able to employ a business model that can injure and risk the safety of these ‘Employee-like’ contractors by Intentionally not managing their workers, to hide questionable actions through discretionary adherence of their procedures(intentionally not provide their services WITH a ‘Duty of care’), as shown in this request to stop bullying. Has Dara Khosrowshahi exceed the period of time to provide the safe guards needed for a safe workplace for all workers.(‘Reasonable Practicble’,) In a ‘Timely Manner’.
‘Sarah’
The respondent;
“21. The essence of the alleged bullying behaviour appears to arise from the assertion that "Sarah" failed to provide a response to the covert surveillance concerns raised by the Applicant, that there was a delay in the response provided by "Sarah" or that the response provided to the Applicant was otherwise insufficient.”Dara, Okesh and Sarah intentionally did not provide their services WITH a ‘Duty of care’ under a PCBU. This is the bullying behavior towards another worker.
In my statement and Speech documents, Sarah intentionally delayed in responding to me, after I challenged the information she provided. By ignoring the new information without responding to me, and allowing the conversation to close. She did not provide her services WITH a ‘Duty of care’ under a PCBU, to eliminate or mitigate this risk. (Risk management).
This was also confirmed by Trent Sebbens in the conciliation meeting, that no further action was taken to investigate the matter of surveillance after Sarahs response.
Whilst this is a single act of by Sarah of Bullying towards me, it does follow a group of workers who are incorrectly trained and mismanaged by an officer, that allows discretionary adherence (Bullying) to procedures and policies. This is Bullying behaviour.
‘Okesh’
My response for ‘Okesh’ has been outlined in my statement and Speech documents. Which I will reiterate;The evidence of ‘Okesh’, proves a failure to address key issues in a safety complaint that is clearly understandable, and then the Uber agent managed to find extra renumeration for the contractor on a ‘Uber connect’ trip, that clearly has no ‘boost’, ‘surge’ or any other monetary ‘incentives’ that is applied to this ‘completed trip’ (A Transport service provided by the contractor). This would clearly indicate that the Uber support agent ‘Okesh’ intentionally avoided a Work Health and Safety Complaint (Incident),by ignoring core issues, and offered renumeration for silence (The closure of the conversation is the indicator that Uber does not need a follow up response). This would be an act of Bribery or attempted Bribery for silence of incident.
On page 9 of my statement document, which I will cite;
“Uber support agent Sarah stated, which I will cite;
‘Another team responded, and my core issue was not addressed’.
The questions the Fairwork Commission should be asking.
• Why did this support agent ‘Okesh’ fail to understand the core issue of my message?
• Why did this support agent take it upon themselves to respond to my message, if they did not understand?
• Was this from a lack of training?
• Why did this support agent fail to ask for assistance from their supervisor?
• Is there a mechanism in place to ask for assistance?
• Why has Uber not stopped untrained teams accessing conversations that they are clearly not trained for, due to repeated unreasonable behavior over a period of years if this was an accident on ‘Okesh’s’ behalf?
• Why are there repeated claims of safety complaints from this independent contractor, which have not been addressed by Uber?
• Why has it been ten years* of Uber operating in Australia and Uber is still having issues with compliance with Work Health and Safety Act 2011 in relation to Uber Driver Partners’ complaints?‘Okesh’, understood the message then intentionally disregard the core issue and took it upon himself to halt the discovery of an incident by offering money in return for discontinuing the inquiry.
This can be seen throughout the evidence provided in my application, that similar circumstances have occurred.
Such as in the evidence ‘Petbarn’, which was a failure to address the core issues, and the Uber workers and/or Officer did something else (Threaten my account). This fact proves incorrect training of a group of workers, which is Non adherence to procedures and the mismanagement from an officer, Dara.
Whilst this is a single act of by ‘Okesh’ of Bullying towards me, it does follow a group of workers who are incorrectly trained and mismanaged by an officer, that allows discretionary adherence to policies and procedures. This Bullying behaviour.
Evidence Filed Relevant
·Form F8A provides evidence that Dara, authorised the rejection of a conference through Uber legal which would have attempted to address the bullying from these ‘individuals or group of workers in the presence of the Fairwork Commission.
·The very lengthy and indepth declaration provides evidence that is a concerted effort to inform and notify Uber including Dara of the serious issues of Bullying against me, from individuals or group of workers. Even if the Declaration was worded in ‘roundabout’ way, page 3 of declaration which I will cite;
“This includes Bullying and harassment from adverse actions, which will explained in the evidence, where applicable. Ref: Work Health and Safety Act 2011, Part 2; Division 1 – 5, Part 3(s35,36,37,38,39), Part 6; Division 1 – 4.”
Bullying was an issue, and the Declaration form provides that significant weight of notification was indeed presented and rejected by Daras’ authority. This evidence filed is relevant to this application.
·‘Petbarn and 2023’ provides evidence of individuals or a group of workers that have not provided services with a ‘Duty of Care’, and that is a reoccurring bullying as shown by Okesh and Sarah.
Petbarn and 2023’ also provides evidence that Dara did not provide a service with a ‘Duty of Care’, by mismanaging his workers.
The new evidence being provided is relevant to this matter, it does provide facts on reoccurring Bullying, and proves the severity of questionable actions which should have prompted Dara to take action. It provides a coherent timeline for this application.
·‘ACCC’,
·‘False Flagging 2017’,
·‘Uber Sham enforcing’,
·System Account Termination December 2019’,
·‘3rd Party training,
·Skimming.
·‘Failed Delivery’”
Rasier’s submissions in reply filed on 13 September 2024
Rasier contends that Mr Myors’ submissions and associated materials filed on 28 August 2024 fail to explain how the Application engages the jurisdiction, other than making broad statements that Rasier and a "person conducting a business or undertaking" has a duty of care to Mr Myors. Rasier contends that Mr Myors’ submissions simply do not reveal any bullying in the workplace nor at all.
Rasier contends that there is nothing on the materials before the Commission filed by Mr Myors which satisfies the description of a person having been ‘bullied at work’ under section 789FD of the FW Act. At page 1 of Mr Myors’ submissions, he contends that in addition to the named individuals in the Application, there are numerous other Uber support agents who have not provided services, and that together with the named individuals, their conduct satisfies the requirement for bullying and repeated behaviour in accordance with the Act. Other than making that assertion, Rasier points out that that contention is neither developed, nor does it correctly apply section 789FD of the FW Act.
In respect of the named individuals, at page 2 of Mr Myors’ submissions, he defines "the Bullying" as "discretionary non-adherence…to their procedures". Again, Rasier submits that that is not developed, nor does it correctly apply section 789FD. There is also nothing in Mr Myors’ submissions and related materials filed, so Rasier contends, which outlines how any alleged behaviour may be relied on as bullying behaviour (which is, in any event, denied).
In respect of any alleged bullying behaviour by Sarah, Rasier submits that no additional information has been provided in Mr Myors’ submissions. Rasier contends that Mr Myors admits that his allegation of bullying against Sarah is “a single act of "Sarah" of Bullying towards me", which Rasier submits does not satisfy the definition of ‘bullied at work’ in accordance with the FW Act. Rasier further submits that there is no connection with any alleged behaviour that may be relied on as bullying behaviour.
In relation to any alleged bullying behaviour by Okesh, Rasier submits that no additional information has been provided in Mr Myors’ submissions. At page [9] of his submissions, Mr Myors suggests that Okesh failed to address a key issue in a safety complaint and alleges this is "an act of Bribery or attempted bribery for silence of incident". Quite how that is said to be the case, is not made out (and is in any event denied). Mr Myors further admits that "this is a single act of by "Okesh" of Bullying towards me" which – quite clearly a single act – does not satisfy the definition of ‘bullied at work’ in accordance with the FW Act. Rasier submits that there is no reference to "Okesh", including in relation to any alleged bullying behaviour, in any of the associated materials filed by Mr Myors along with his submissions. Rasier further submits that there is no connection with any alleged behaviour that may be relied on as bullying behaviour.
As to Dara Khosrowshahi, Rasier submits that no additional information has been provided in Mr Myors’ submissions or related materials which evidences direct communication, nor any other form of engagement between Mr Myors and named individual Dara Khosrowshahi, CEO, who does not reside in Australia. It is not contended by Mr Myors that there is. On that basis, Rasier contends that it simply cannot be made out that Mr Myors was ‘bullied at work’ within the meaning of section 789FD(1) by Dara Khosrowshahi.
In Rasier’s earlier submissions, it sought that Dara Khosrowshahi be excluded as a named individual from these proceedings on that basis. Mr Myors has objected to this request on the basis that "Duties are non-transferable" making reference to the Work Health and Safety Act 2011. Rasier submits that this interpretation is plainly incorrect. Accordingly, Rasier again seeks that Dara Khosrowshahi be excluded as a named individual from these proceedings.
Consideration
Mr Myors believes that he and his family are being covertly surveilled by Uber. This provides the foundation for a significant part of Mr Myors’ contention that he has been bullied at work. Mr Myors has raised his concerns about covert surveillance with Uber. The material filed by Mr Myors establishes that an Uber Support Agent, Sarah, responded to Mr Myors’ concerns about surveillance. The response from Sarah demonstrates that she caused inquiries to be made as to whether the vehicle identified by Mr Myors was affiliated with Uber. Sarah informed Mr Myors that the vehicle captured was not affiliated with Uber. Sarah also, appropriately in my view, encouraged Mr Myors to contact the police if he felt he was in danger. It is clear that Mr Myors is not satisfied with Sarah’s response, because he believes that Uber is responsible for what he perceives to be covert surveillance of him and his family. But dissatisfaction with Sarah’s response does not establish any unreasonable behaviour on Sarah’s behalf towards Mr Myors. On the basis of the Application and the material filed by Mr Myors in the Commission, there is no conduct on Sarah’s part that could give rise to a finding that Sarah behaved unreasonably towards Mr Myors.
As to the Uber Support Agent, Okesh, Mr Myors raised a concern with Uber Support in relation to an incorrect trip distance. The material filed by Mr Myors demonstrates that Okesh responded to Mr Myors and informed him that he would be assisting Mr Myors with his concern in relation to an incorrect fare. It was obviously appropriate for Okesh to send a message of that kind to Mr Myors. Okesh then addressed Mr Myors’ concern (in favour of Mr Myors) and informed Mr Myors that he had added a miscellaneous payment of $11.75 to reflect the correct fare for the trip undertaken by Mr Myors. Notwithstanding Mr Myors’ assertion that Okesh offered him a “bribe”, it was obviously reasonable for Okesh to resolve Mr Myors’ concern in his favour and pay him an amount of $11.75 to rectify the deficiency in the fare previously paid to Mr Myors for the trip undertaken by him. Mr Myors provided a later response concerning covert surveillance, but that was, as I have explained above, appropriately dealt with by Sarah. On the basis of the Application and the material filed by Mr Myors in the Commission, there is no conduct on Okesh’s part that could give rise to a finding that Okesh behaved unreasonably towards Mr Myors.
As to Dara Khosrowshahi, CEO, Mr Myors does not contend that he has had any direct communication, or any other form of engagement, with Dara Khosrowshahi, who does not reside in Australia. Mr Myors’ contention of bullying behaviour by Dara Khosrowshahi is primarily focused on the assertion that, as the most senior employee of the company, Dara Khosrowshahi has a duty of care to ensure that workers such as Mr Myors are kept safe at work and treated appropriately at work. Applications for orders to stop bullying at work are quite different from civil cases concerning allegations of negligence or prosecutions under work health and safety legislation, where duties of care are carefully considered and findings in appropriate cases are made. An application for an order to stop bullying under the FW Act can only succeed if, among other things, a finding is made that a worker has been ‘bullied at work’ within the meaning of s 789FD of the FW Act. That provision focuses on whether an individual, or a group of individuals, has repeatedly behaved unreasonably towards the worker, or a group of workers of which the worker is a member. On the basis of the Application and the material filed by Mr Myors in the Commission, there is no conduct on the part of Dara Khosrowshahi that could give rise to a finding that Dara Khosrowshahi behaved unreasonably towards Mr Myors.
The material filed by Mr Myors on 28 August 2024 refers to alleged conduct by a range of individuals, some named and others not named, in relation to a range of different incidents over a period of many years. It is not alleged by Mr Myors that Sarah, Okesh or Dara Khosrowshahi, the three individuals named in the Application, engaged in that conduct. Because I have concluded, for the reasons set out above, that none of Sarah, Okesh or Dara Khosrowshahi have behaved unreasonably towards Mr Myors, the conduct of these other individuals, some named and others not named, is not relevant to whether Mr Myers was ‘bullied at work’ by Sarah, Okesh or Dara Khosrowshahi, or any group of which they were part.
Accordingly, I am satisfied that, taking Mr Myors’ case at its highest, he has not identified in the Application, or any other material filed by him in the Commission, any conduct or behaviour by Sarah, Okesh or Dara Khosrowshahi, or any group of which they or any of them are a part, that meets the legislative definition of ‘bullied at work’ in accordance with s 789FD of the FW Act. It follows that the Application should be dismissed for want of jurisdiction or, alternatively, on the basis that it has no reasonable prospects of success.
Conclusion
For the reasons given, Mr Myors’ application for orders to stop bullying is dismissed.
DEPUTY PRESIDENT
[1] [2020] FCAFC 152 at [69]
[2] GC[2014] FWC 6988 (GC) at [47]
[3] Re SB (2014) 244 IR 127; [2014] FWC 2104 (Re SB) at [41]
[4] GC at [45]
[5] Ibid; Mac v Bank of Queensland Limited[2015] FWC 774 (Mac v BOQ) at [88]-[89]
[6] Ibid
[7] Explanatory Memorandum to the Fair Work Amendment Bill 2013
[8] Purcell v St Aloysius College at [22]
[9] Re SB at [49]
[10] Re SB at [51] see also Mac v BOQ at [91]
[11] (2010) 241 CLR 118, [2010] HCA 28
[12] Ibid at [59]-[60]
[13] Baker v Salva Resources Pty Ltd [2011] FWAFB 4014; (2011) IR 174 at [10]
[14] cf Wright v Australian Customs Service (2002) 120 IR 346 at [32]
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