Tanka Jang Karki - [2019] FWC 3147

[2019] FWC 3147

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 789FC - Application for an order to stop bullying

Tanka Jang Karki

(AB2018/599)

Deputy President Sams

SYDNEY, 27 MAY 2019

Application for an order to stop bullying – employee of casino – allegation of using mobile phone at work, contrary to policy – allegation investigated – CCTV footage – applicant’s behaviour during investigation – allegation not denied – warning issued – second allegation of spitting in a bin in a public place in the casino – allegation investigated – CCTV footage – applicant warned – warning not accepted – whether actions taken constitute reasonable management action taken in a reasonable manner – jurisdictional objection - interim orders sought to stop any dismissal and to stop further bullying – disciplinary action reasonable – applicant’s implausible explanations rejected – no evidence of bullying by respondents – interim orders refused – application dismissed as jurisdictionally incompetent.

Mr Tanka Jang Karki (the ‘applicant’) is employed as a Bellman at Star City Casino, Sydney (‘The Star’ or the ‘first respondent’). He has been employed by the employing entity, The Star Pty Ltd, since June 2016. On 27 September 2018, Mr Karki filed an application for an order to stop bullying, pursuant to s 789FC of the Fair Work Act 2009 (the ‘Act’). In his application, he named Ms Jessica Sykes, Front Office Manager as the second respondent. It is apparent from the application that Mr Karki alleges he was bullied by Ms Sykes during and following an incident on 27 August 2018, in which he had been observed by her using his personal mobile phone while on duty, contrary to The Star’s Policies and Procedures. He claimed he was publically abused, embarrassed and harassed by Ms Sykes. He also claims that the subsequent warning which he received for the use of his mobile phone while on duty was unjustified, constituted inappropriate management action and must be withdrawn.

In The Star’s response on behalf of Ms Sykes, it was submitted firstly, that Mr Karki was not the subject of repeated behaviour, as his claim related to a single one-off incident, which does not meet the definition of bullying. Secondly, the incident for which Mr Karki was disciplined was ‘reasonable management action taken in a reasonable manner’, in accordance with s 789FD(2) of the Act. In any event, the Commission has no jurisdiction to deal with Mr Karki’s application.

Despite these jurisdictional objections, and in accordance with my usual practice, I convened a private conference with the parties on 1 November 2018. The application was unable to be resolved and Mr Karki agreed to my suggestion that he seek advice about his application, given both the jurisdictional and merit issues discussed in the conference.

However, on 19 November 2018, Mr Karki sent a one-sentence email to my Chambers requesting that I recuse myself from any further dealings with his matter. On 20 November 2018, I issued directions for the filing of submissions as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tanka Jang Karki

Details

AGLC: Tanka Jang Karki [2019] FWC 3147
Case: [2019] FWC 3147
Decision Date: 27 MAY 2019

CaseChat Overview and Summary

The matter involved Tanka Jang Karki who brought an application for an order to stop bullying against her employer, a casino operator. Karki alleged that she was bullied by her employer by being subject to unreasonable management actions and being directed to engage in conduct that contravened workplace policies. The application was brought to the Fair Work Commission and was assessed on the basis of whether the employer's actions were reasonable and taken in a reasonable manner. The jurisdictional objection was also considered, as well as the interim orders sought by Karki to prevent dismissal and further bullying.

The court was required to determine whether the disciplinary actions taken by the employer were reasonable and taken in a reasonable manner. The court also had to consider whether there was evidence of bullying by the employer and whether the interim orders sought by Karki were justified. The court examined the CCTV footage and the applicant’s behaviour during the investigation of the allegations against her. The court also had to decide whether the jurisdictional objection was valid and whether the application was competently brought before the court.

The court found that the disciplinary actions taken by the employer were reasonable and taken in a reasonable manner. The court rejected the applicant's implausible explanations and found no evidence of bullying by the respondents. The court found that the jurisdictional objection was valid and that the application was incompetently brought before the court. The court refused the interim orders sought by Karki and dismissed the application as jurisdictionally incompetent. The court found that the employer's actions were reasonable and did not constitute bullying.

The court dismissed the application and refused the interim orders sought by Karki. The court found that the employer's actions were reasonable and did not constitute bullying. The court found that the application was incompetently brought before the court and that the jurisdictional objection was valid. The court did not make any orders as the application was dismissed.

Orders