Tamer Eskander

[2019] FWC 2579

[2019] FWC 2579

FAIR WORK COMMISSION

DECISION

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

Tamer Eskander
(AB2018/751)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 15 APRIL 2019

Application for an order to stop bullying – alleged failure to provide sufficient or competent support staff on Saturday shifts – alleged bullying not substantiated – application dismissed.

[1] On 1 December 2018, Tamer Eskander (the applicant) made an application under s.789FC for an order to stop bullying under Part 6-4B of the FairWorkAct2009 (the FW Act). The application named the following as persons against whom bullying is alleged: Robyn Young, Chantelle Austin and Michael Newman.

[2] The applicant is employed as a pharmacist by N Bowen & J Cannon variously trading as Bowens Health Services, Bowens Pharmacy Wyoming and Chemist Outlet East Gosford (the employer). Ms Young and Ms Austin were employed as Group Dispensary Manager and Dispensary Support Manager respectively; however, neither of them still works for the employer. Mr Newman is the employer’s Human Resources Manager.

[3] I conducted a conference with the applicant and a separate conference with the persons named on 9 January 2019. It was apparent that further conciliation was unlikely to resolve the matters in dispute, so I issued directions for the parties to file and serve outlines of submissions and evidence. I conducted a hearing in Sydney on 6 March 2019, then received final submissions in writing from the applicant and Mr Newman (on behalf of the employer).

[4] The applicant represented himself at the hearing and gave evidence on his own behalf. The employer was represented by Mr Newman, who also gave evidence. Paul Nantwi (pharmacist employed by the employer), Deborah Richards (Retail Manager), Dianne Neeves (Area Manager) and Corrina Shearer (Manager of Nursing Home Staff at pharmacy) also gave evidence for the employer. Ms Young had already advised the employer of her impending resignation by the hearing date and did not attend the hearing. Ms Austin also attended the hearing and gave evidence on her own behalf.

The evidence

[5] The applicant is an experienced pharmacist with over 12 years’ experience. He has worked for the employer since September 2017 as a pharmacist at Bowens Pharmacy Wyoming (the Wyoming pharmacy) and Chemist Outlet East Gosford (the East Gosford pharmacy).

[6] Before the issues that led to this application, the applicant was working the following hours at the Wyoming pharmacy:

•  Monday 10:00 am to 8:00 pm

•  Friday 12:00 pm to 8:00 pm

•  Saturday 8:30 am to 6:00 pm and

•  every second Sunday 9:00 am to 6:00 pm.

[7] The applicant also worked at the East Gosford pharmacy on Thursdays from 9:00 am to 8:00 pm. 1

[8] The applicant has been on personal leave since 29 November 2018, and is currently receiving workers’ compensation. 2 He has, however, been working 25 hours a week for other employers.3

[9] At the core of the alleged bullying is the applicant’s claim that he had been expected to work at the Wyoming pharmacy without adequate staff to support him on Saturdays. He said that he had first started working in the Wyoming pharmacy in September 2017. At that point, in the applicant’s estimation, the pharmacy had the same staffing levels as the rest of the week ‘with almost same capabilities and experience’. However, in mid-July 2018, the employer ‘decided not to renew the contract of the dispense tech who used to cover Friday and Saturday without arranging for a proper replacement for her’. 4

[10] At that point, according to the applicant, the employer ‘replaced the dispense tech by a lady intern pharmacist who happened to have intellectual disabilities (according to Michael Newman the HR manager), she was struggling and overwhelmed with a task much bigger than her capabilities’. 5

[11] While cross-examining the applicant, Mr Newman clarified that the intern pharmacist (who had completed a four-year bachelor’s degree in pharmacy before commencing with the employer) did not have an intellectual disability:

‘She actually has a learning disorder. It does take her a little bit more time to understand a process, but if she has the support, okay, if she is shown the patience, she gets these things quite quickly’. 6

[12] According to the applicant, he shared his concerns with Mr Newman. However, while a new ‘experienced dispensing tech’ was hired at this time, she was scheduled to work on Fridays (replacing the intern pharmacist) and some other weekdays. However, the intern pharmacist continued to work on Saturdays, which according to the applicant’s evidence meant that he ‘ended up doing double and sometimes triple the effort to get things done on Saturdays’. The applicant claimed the intern pharmacist continued to be given Saturday shifts because he (the applicant) was the target of bullying. 7

[13] The applicant says that he threatened to stop working Saturdays, and the employer responded by asking one of the ‘shop girls to be trained as a dispense tech even though she is not qualified to [do] dispensing, the company asked me to wait and see if she will be able to handle the work load on Saturday by herself, and again I am doubling or tripling the effort to get things done on Saturday, I wanted to give a chance first but the company did not bother to train her on any other day because they know she is not either qualified or trained to do dispensing.’ 8

[14] Mr Newman said that the employee in question, Lara Harriman, had two years’ pharmacy experience and a Certificate II in Community Pharmacy. The intention was to train her to work at the level and capacity required. Her performance has been ‘above standards’.

‘All staff need time and support when learning and developing new skills however Mr Eskander showed no patience, understanding or support to this Dispensary Assistant during this time nor to the Intern.’ 9

[15] According to the applicant, he ended up doing the ‘prescription dispensing job, (which is done by a dispense tech all the week long except for Saturday)’, on top of all his other duties. 10

[16] The applicant claimed that the number of scripts sometimes exceeded the guidelines set by AHPRA (by which he presumably meant the Australian Health Practitioner Regulation Agency) and the Pharmacy Guild ‘which is 200 scripts per shift per pharmacist without a dispense tech’. He also claimed that on Saturdays, the workload was such that he could not sit down to have a break or anything to eat until 3:00 pm or later, having started work at 8:30 am. 11

[17] The employer denied that the staffing level at the Wyoming pharmacy on Saturdays was unreasonable. Mr Newman said:

‘The Pharmacy has reviewed script volumes and financial turnover operating on a Saturday and findings have shown that the Pharmacy trades at half the capacity in comparison to other days of the week and as a result does not warrant a second pharmacist to be rostered on. Staffing levels are also adequate on Saturdays with a well-trained dispensary assistant, Intern-Pharmacist and a Nursing Home dispensary assistant if required during times of peak hour to assist Mr Eskander.’ 12

[18] Mr Newman attached to his statement a record of daily script totals for every day from 1 July to 31 December 2018. 13 The number of scripts issued on Saturday varied between 125 and 215. The number of scripts reached 200 on five occasions, but was less than 200 on 21 occasions. The average number of scripts issued on a Saturday was 168. The number of scripts issued on a weekday was almost always more than 200, and averaged 250 to 280 per day most weeks.

[19] The applicant claimed these figures had been manipulated, but conceded that he had nothing to back up this assertion. 14

[20] Mr Newman said that as part of the employer’s review of workloads, it had examined relevant CCTV footage. This showed the applicant using his mobile phone on numerous occasions, sitting in the back areas of the shop or on the stool in the dispensary and ‘basically ordering the staff around’. 15

[21] A detailed analysis of the CCTV footage over three months of Saturdays (conducted by Ms Richards) 16 showed that the applicant typically spent between 76 and 113 minutes sitting down while using his mobile phone, excluding the morning tea break.17

[22] When this was put to the applicant, he said that there were times when he was very busy, where he had to serve a long line of customers, and he was entitled to breaks, which he had to take in short bursts:

‘My mobile phone is used to - during my breaks is used to browse my social media because it’s my right to use my break as I want.’ 18

[23] The applicant also claimed that he used his mobile phone to access training which he had to undertake to maintain his registration. 19

[24] Ms Richards summarised her findings from her analysis of the CCTV footage thus:

‘After watching 3 months of Saturdays there is a distinct pattern. The mornings start off quietly then around 9:30 it becomes a steady flow of customers till just after lunch. Afternoons were slow. From what I observed there was [sic] never more than 2 awaiting scripts to be done. In the busier times there was always an extra dispense assistant from the nursing home section that could be called on for help. This person was to be the first port of call when the dispensary was busy. They also covered all morning tea and lunch breaks. Jasmine (our Pharmacy intern) who worked in the front of shop on Saturdays was also a dispensary assistant. She at times would help out in dispensary but that would only cause the front of shop pressure. As the front of store were short of staff. In my opinion there was adequate staffing to cover the amount of scripts taken in and front of shop customers. Staff and Tim [referring to the applicant] often stood around talking. Tim was often on his mobile or just sitting. Tim also spent a large amount of time away from dispensary. This may have been spent in Nursing home or the lunch room.’ 20

[25] During her oral evidence, I asked Ms Richards about some screenshots from the CCTV footage that were included in Mr Newman’s evidence. She said:

‘Well, Mr Eskander says that he was stressed from the job and part of being stressed is, like being overworked, not enough staff, but he had time to leave where he was actually supposed to be and take time to sit down and scroll through the phone, so --- and he was actually scrolling away all the time on the phone.’ 21

[26] When it was pointed out to Ms Richards that the applicant had the right to a certain number of breaks, she said the screenshots tendered and her analysis of the CCTV footage did not include any time the applicant was in the lunch room, or in the back area. 22

[27] The applicant claimed:

‘Even when I had major heart surgery in September, the company was not considerate of my health condition as I continued healing while at work and kept same excessive work load on me.’ 23

[28] However, Mr Newman said that the applicant was given two weeks leave for his operation and he did not return to work until he had a full clearance medical certificate allowing him to return to work at full capacity. 24 The applicant conceded that this was so.25

[29] According to Mr Newman the level of staffing at the Wyoming pharmacy is now exactly the same as when the applicant commenced personal leave. 26

[30] The applicant said he quit working Saturdays after he had been ‘yelled at’ by Ms Richards and Ms Neeves over the phone on his last Saturday shift (3 November 2018), because he had asked the intern pharmacist (who was working as part of the shop team that day) to work in dispensary ‘because she had nothing to do’.

‘She refused to work for no reason. I repeated my request politely but she acted as if she cannot hear me. The intern pharmacist was acting rude and refused my proper work directions. Apparently, she took orders not to follow my instructions and I was experiencing lack of co-operation from the team.’

[31] The applicant said he had previously notified both Ms Richards and Ms Neeves by email of his intention that he would be using the intern pharmacist, Jasmine, and Lara the dispense technician to dispense. He said that no one got back to him. When he tried to implement what he had advised he would do, Jasmine refused to comply with what he considered reasonable requests for dispensing some scripts ‘and then she acted as if she is not listening to me. I told her you either do what you are told or you may go home, but you can’t stand still and do nothing, because what she was doing is just looking at the horizon without doing anything. She said no, I’m not doing this and she keep [sic] ignoring me as I was talking to her…’ 27

[32] According to the applicant, Jasmine told him that Ms Richards had told her to work at the front of the shop and she would not be doing any dispensing. 28

[33] The applicant said that when he raised the matter with Ms Richards, he was met with a ‘storm of anger’. He said Ms Neeves then called him, yelled at him and told him he should have dispensed the scripts himself. He told her she was not in a position to judge what was right as she was not at the premises, but she continued yelling at him. He then said:

‘…after a while they called Corrina (Shearer)…Corrina came, she was very snotty, she was – she was speaking rudely to me at the back. I said, “I don’t want any troubles.” She…wasn’t even there when that happened. So she just came assuming that it was my fault and she was speaking to me very badly.’ 29

[34] The applicant said that this incident caused him a great deal of stress and he said he could no longer work at the pharmacy on Saturday. 30

[35] The applicant denied yelling at Jasmine. 31 He conceded that his response was not correct, but that he was under a lot of pressure at the time. He agreed he was angry, but he did not reach the point of ‘yelling and swearing and threatening’. He told her either to do the scripts or to go home. He did not deny, however, that she was in a corner at the back of the shop crying after he had spoken to her, though he said he did not actually see her as he was at the front of the shop.32

[36] The applicant also agreed he had an angry conversation with Ms Austin. However, he said this was the effect of the pressure he was put under ‘from feeling discriminated against from not having trained staff on Saturday and being overworked.’ 33

[37] Mr Newman’s evidence about the events on this day are that:

‘Mr Eskander was acting unreasonably towards the Intern demanding that she work in the dispensary when there was no need for her to. Mr Eskander had previously wanted the intern not to work in the dispensary as he claimed that she was incompetent to work there. Evidence show [sic] that Mr Eskander was the aggressor and yelled at the Intern to go home in front of all staff and customers at the time because she allegedly refused to help him. As a result the intern was in tears in the corner of the Pharmacy and as a result left other staff scared and intimidated.

Mr Eskander proceeded to call Ms Richards on the phone who was also verbally abused by Mr Eskander in relation to the intern. Ms Neeves was informed as to what was going on by the Nursing Home Manager, Ms Corinna Shearer, who called the Pharmacy to find out what was going on in an attempt to calm Mr Eskander down. Mr Eskander did not calm down and continued to yell and act aggressively in a rage and Ms Shearer physically came down to the Pharmacy to ensure that the staff were all ok. Ms Shearer tried to calm Mr Eskander down only to be verbally abused.’ 34

[38] The incident led at least two of the staff who were present on the day to seek counselling. 35

[39] Ms Richards gave evidence consistent with Mr Newman’s version of events. She said she had told the applicant after he had rung her up that he had been wrong to ask Jasmine to help him with dispensing, as she was employed on Saturday to help with front of shop duties. She told him he was meant to ask for help from the dispense technicians who were available in the nursing home section of the pharmacy. She said the applicant was yelling at her during the conversation. 36

[40] Ms Neeves also gave evidence that the applicant had yelled at and been aggressive towards her on 3 November 2018, after she had rung the Wyoming pharmacy to find out what was going on. 37 During her cross-examination, she described how the applicant cut her off and told her to ‘shut up’ during the phone conversation. I note that while the applicant was cross-examining Ms Neeves, he repeatedly interrupted while she was trying to respond to his questions.38

[41] During the applicant’s cross-examination of Ms Neeves, he criticised her for ringing him and continuing to talk to him ‘while I was angry, and while I was swearing at you’. 39

[42] Ms Austin gave evidence that it was the applicant who was unable to work harmoniously with his co-workers at the Wyoming pharmacy, and not the other way around: ‘[h]e did not like Jasmine and he made that very clear from our very first discussion that his issues with Jasmine were personal.’ 40

[43] Ms Shearer gave evidence that the applicant:

‘…would speak to the staff like they were beneath him especially our intern pharmacist Jasmine. He would yell, point at staff or in their face, slam his hands down on the bench and throw his arms around. It was to the point we had staff refusing to work with him due to the manner [sic] they were being treated and spoken to.’ 41

[44] Ms Shearer also gave evidence about the events of 3 November 2018 that were consistent with Mr Newman’s version. She spoke to the staff at the pharmacy immediately after the incident involving Jasmine. She described how both Jasmine and another staff member had been reduced to tears. 42

[45] A formal meeting occurred on the Thursday following this incident. Mr Newman gave evidence that during this meeting, the applicant was aggressive and raised his voice a number of times. The applicant was issued with a verbal warning which was later intended to have been confirmed in writing; however, this has not occurred as the applicant subsequently went on personal leave. 43

[46] The applicant said that after this incident, he was forced to cease working at the Wyoming pharmacy. Subsequently, he worked at Tumbi Umbi on Monday from 9:00 am to 6:00 pm, and the East Gosford pharmacy on Wednesday and Thursday from 9:00 am to 6:00 pm, until 29 November 2018 when he went on personal leave.

[47] The applicant added:

‘I was offered to work on weekends but I was too afraid to accept it, the reason was I did not want to end in the same situation like what has happened on Saturday in Bowen’s Pharmacy Wyoming. And that’s how I lost my weekend hours.’ 44

[48] Mr Newman said that the applicant needed to be relocated because he had instilled fear in the other staff at the Wyoming pharmacy. 45

[49] The event that led to Mr Eskander’s personal leave was an incident whereby a methadone patient who had assaulted Mr Eskander in January 2018 at the Wyoming pharmacy came into the East Gosford pharmacy to be treated while Mr Eskander was present. This event does not appear to be directly related to the applicant’s claim of bullying; it is sufficient to say that at worst it appears to have been an unfortunate mix-up.

Consideration

[50] Section 789FD of the FW Act relevantly 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 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.’

[51] It is not in contention that the employer is a constitutionally-covered business.

[52] Section 789FF of the FW Act relevantly provides:

‘(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.’

[53] It is apparent that before I can make any order to stop bullying in this matter, I must first be satisfied that one or more of the persons named by the applicant has repeatedly behaved unreasonably towards him, in a manner that creates a risk to his health and safety.

[54] I am not satisfied that any of the persons named by the applicant, or any other employees of the employer, have behaved unreasonably towards the applicant.

[55] I am not satisfied that the employer (or any of its employees) imposed an unreasonable workload on the applicant on Saturdays. The data tendered by Mr Newman concerning the number of scripts issued each day provides a clear basis for the decision only to employ one pharmacist on Saturday at the Wyoming pharmacy.

[56] Ms Richards’ analysis of the CCTV footage further disproves the applicant’s claim that he was overworked.

[57] I am satisfied that the employer took reasonable steps to address the applicant’s concerns, first by employing an intern pharmacist, and then, when she proved unacceptable to the applicant, training up a dispensary assistant to help him. He also had access to help from staff working in the nursing home section of the pharmacy.

[58] I am satisfied that none of the other instances of behaviour referred to by the applicant came anywhere near the definition of bullying.

[59] The only clear evidence of unreasonable behaviour in this matter concerns the applicant’s own conduct on 3 November 2018. His behaviour to the intern pharmacist on that day was completely unacceptable, as was the way he spoke to a number of other employees of the employer. In these circumstances, it was quite reasonable for the employer to remove him from working in the Wyoming pharmacy.

Conclusion

[60] The applicant was not bullied at work. His application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

T Eskander, the applicant, in person.

M Newman for N Bowen & J Cannon T/A Bowens Health Services, Bowens Pharmacy Wyoming and Chemist Outlet East Gosford.

C Austin, a person named, in person.

Hearing details:

Sydney.

2019.

March 6.

Final written submissions:

Tamer Eskander: 17 March, 1 April 2019.

N Bowen & J Cannon T/A Bowens Health Services, Bowens Pharmacy Wyoming and Chemist Outlet East Gosford: 22 March 2019.

Printed by authority of the Commonwealth Government Printer

<PR707059>

 1   Exhibit 1 p 1, second paragraph; PN76.

 2   PN63-9.

 3   PN366-7.

 4   Exhibit 1 p 1, fourth paragraph.

 5   Ibid, fifth paragraph.

 6   PN111.

 7   Exhibit 1 p 1, fifth paragraph.

 8   Ibid p 2, third paragraph.

 9   Exhibit 2 p 3, point 4.

 10   Exhibit 1 p 2, third paragraph.

 11   Ibid p 3, second paragraph.

 12   Exhibit 2 p 2 point 1.

 13   Ibid annexure 8.

 14   PN121-3.

 15   PN53.

 16   PN957.

 17   Exhibit 2 annexures 26A-26H.

 18   PN55.

 19   PN56.

 20   Exhibit 2 annexure 26H.

 21   PN983.

 22   PN991.

 23   Exhibit 1 p 3, fifth paragraph.

 24   Exhibit 2 p 5, point 10.

 25   PN218-9.

 26   PN712.

 27   PN221.

 28   PN222.

 29   PN227.

 30   PN231.

 31   PN233.

 32   PN252-4.

 33   PN298.

 34   Exhibit 2 pp 5-6, point 11.

 35   Ibid annexure 36.

 36   Exhibit 5.

 37   Exhibit 6.

 38   PN184-97.

 39   PN1199.

 40 Exhibit 3 [6].

 41   Exhibit 7.

 42   PN1279-83.

 43   Exhibit 2 p 6, point 12.

 44   Exhibit 1 p 5, first paragraph.

 45   PN333.