Nady Antoun

[2021] FWC 4585

[2021] FWC 4585

FAIR WORK COMMISSION

DECISION

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

Nady Antoun
(AB2021/349)

COMMISSIONER SIMPSON BRISBANE, 28 JULY 2021

Application for an order to stop bullying

[1] This decision deals with an application for an interim order to prevent the termination of Mr Nady Antoun by his employer before the hearing and determination of Mr Antoun’s application for an order to stop bullying which has been listed for hearing on 28 August 2021. 

[2] On 25 June 2021 Mr Nady Antoun, a communications engineer employed by Origin Energy Pty Ltd made an application for an order to stop bullying against Mr Shane Price, the Head of Operational Technology at Origin in the part of the business that Mr Antoun is employed.  Mr Antoun has filed a separate From FC general protections application.

[3] The background facts included that Mr Antoun claims that Mr Price accused him of performance failures that were inaccurate.  Mr Antoun said after he escalated the issue to his company Human Resources Department, Mr Price lied to the internal investigator and denied saying things to Mr Antoun that Mr Antoun claimed Mr Price said he did say to him.  Mr Price then failed Mr Antoun on his annual performance assessment. 

[4] The initial internal investigation conducted by Origin Energy resulted in a finding that Mr Antoun’s allegations against Mr Price of bullying were not substantiated.  Mr Antoun disputed this investigation result, complaining that the investigator did not consult with witnesses.  A second review of the investigation was undertaken by an external law firm however Mr Antoun said he was not contacted by anybody about the second review of the investigation which also found Mr Antoun’s allegations were not substantiated.  Mr Antoun seeks an order from the FWC that the bullying and harassment by Mr Price stop and a proper investigation be conducted into the behaviour of Mr Price. 

[5] Origin Energy submitted the substance of Mr Antoun’s allegations are that feedback from Mr Antoun’s supervisor, including as part of performance review is bullying. 

[6] Section 589 of the Act provides as follows:

“589 Procedural and interim decisions

(1) The FWC may make decisions as to how, when and where a matter is to be dealt with.

(2) The FWC may make an interim decision in relation to a matter before it.

(3) The FWC may make a decision under this section: (a) on its own initiative; or (b) on application

(4) This section does not limit the FWC’s power to make decisions.”

[7] It has been established in previous decisions of this Commission that it is open to the Commission to make interim orders pursuant to s.589 in bullying matters. 

[8] These principles relevant to the determination of this application were discussed by Bromberg J in Quinn v Overland 1 where His Honour said:

“[45] In determining an application for interlocutory relief, the Court addresses two main inquiries. First, whether the applicant has made out a prima facie case in the sense that if the evidence remains as it is, there is a probability that at the trial of the action the applicant will be held entitled to relief. Second, whether the inconvenience or injury which the applicant would be likely to [2017] FWC 1886 9 suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted: Australian Broadcasting Corp v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at [65], [19].

[46] The requirement of a “prima facie case” does not mean that the applicant must show that it is more probable than not that the applicant will succeed at trial. It is sufficient that the applicant show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights the applicant asserts and the practical consequences likely to flow from the order the applicant seeks. In that context there is no objection to the use of the phrase “serious question” to convey the strength of the probability: Australian Broadcasting Corp v O’Neill per Gummow and Hayne JJ at [65]-[72], Gleeson CJ and Crennan J agreeing at [19].”

[9] In the course of the Fair Work Commission (the Commission) conference conducted to deal with Mr Antoun’s application, Origin complained about what it said was Mr Antoun’s inappropriate and disrespectful behaviour toward managers within Origin and also claimed that the person named in Mr Antoun’s application was so affected by the Mr Antoun’s conduct that he was required to take personal leave. Origin referred to its obligations to provide a safe workplace including for the named person. Mr Antoun disputed the allegations and the extent of and nature of his communications with Mr Price and other managers within Origin in relation to his grievances. 

[10] It was apparent at the conference, further to rejecting Mr Antoun’s claims of bullying following its own investigations, Origin held concerns about Mr Antoun’s conduct at that time to the extent that it believed the relationship between Mr Antoun and Origin was becoming untenable.  Following the unsuccessful conference before the Commission, Origin wrote to Mr Antoun requiring him to attend a meeting about his conduct and behaviour including his alleged inappropriate and disrespectful communication style.  Origin set out a lengthy list of allegations to that effect.  A meeting occurred between the parties on 22 July and on 26 July Origin advised Mr Antoun in writing that the allegations against him had been substantiated and directing him to show cause why he should not be terminated.  At this point Mr Antoun sought to have the Commission intervene by issuing an order to prevent his dismissal. 

[11] In the conference between the parties conducted before the Commission, I raised a concern about procedural flaws in the investigations conducted given that it appeared the investigators had not properly interviewed all relevant parties.  Despite this however, I am not satisfied that this application has clear prima facie merit and there is a likelihood of success to justify the preservation of the status quo pending further consideration and determination of the substantive matter by the Commission.  

[12] I am inclined to the view that the allegations made by Mr Antoun, if ultimately supported by evidence, may well show flaws in the procedures adopted by Origin and even errors in the conclusions reached by Mr Price about Mr Antoun’s performance, but appear less than likely to result in a conclusion of bullying by Mr Price given there does not appear to be a clear prima facie case of repeated unreasonable conduct by Mr Price directed at Mr Antoun whilst he was at work within the meaning of s.789FD of the Act. On 8 April 2021, Mr Price told the Applicant he would not approve his TA2 application. Mr Price gave feedback as expected of someone in a managerial role.  

[13] It was this feedback and the decision not to approve the TA2 application that lead to the allegations of bullying.  On 24 June 2021, Mr Price conducted the Applicant’s annual performance review and again gave feedback about his perceptions of the Applicant’s performance and provided examples of that performance.  Providing feedback on performance is reasonable management action.  Mr Price’s feedback, and the allegation that Mr Price lied to investigators who were examining Mr Antoun’s allegations against Mr Price are at the heart of the application being made under s.789FD.

[14] It has been observed in other matters that, interim orders of the nature being considered here should not be issued lightly. Each application must be considered in its own right and circumstances.  The matters that are the subject of the disciplinary action Origin is contemplating pertain to conduct that is separate to allegations Mr Antoun has brought against Mr Price and granting the interim order raises a likelihood that the interim order will circumvent reasonable disciplinary action and its consequences.  Origin has made the submission that the inappropriateness of Mr Antoun’s communication has been raised in in 2019 and 2020 performance reviews.

[15] It is also the case that in the event Origin does make a decision to terminate Mr Antoun he will be entitled to dispute that dismissal by bringing an unfair dismissal case or the general protections application which he has also filed.  Origin is on notice that Mr Antoun is aware of his right to bring an unfair dismissal claim and is already aware of the existing general protections claim which it will no doubt take account of in reaching its final determination concerning what action it takes.  For all of the above reasons I have decided to decline the application for an interim order and the application for an interim order is dismissed. 

COMMISSIONER

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 1 [2010] FCA 799.