Vohra
[2022] FWC 1348
•22 JUNE 2022
| [2022] FWC 1348 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Vohra
(SO2022/210)
| COMMISSIONER MCKINNON | SYDNEY, 22 JUNE 2022 |
Application for an order to stop bullying – whether application has reasonable prospects of success – whether to add named individual as respondent.
On 28 April 2022, Ms Simran Vohra applied for orders to stop bullying at work under s.789FC of the Fair Work Act 2009 (Act). The application alleges that Ms Vohra has been bullied at work by Ms Kurdi Akrawi, an employee of TPG Telecom Limited / Vodafone (Vodafone). It seeks orders to stop the alleged bullying behaviour.
The application arises in the context of a failing commercial relationship. Until recently, Ms Vohra operated a Vodafone store in Clayton through her company, Judgez Pty Ltd. Judgez was licensed to deal on behalf of Vodafone through its Sub Dealer Agreement with Mo’s Mobiles Pty Ltd. Mo’s Mobiles is a Principal Dealer for Vodafone.
Under section 789FD of the Act, a worker is bullied at work if, while they are at work in a business, one or more individuals repeatedly behave unreasonably toward them and the behaviour creates a risk to health and safety. Ms Vohra is a worker for the purposes of the Act because “worker” has the same meaning as in the Work Health and Safety Act 2011 (Cth) and includes an individual who carries out work in their own business or undertaking.[1] Ms Vohra carries out work in her own business. Her status as a worker is not altered by the fact that her allegations of bullying are made against an individual who is employed in a different business (in this case, Vodafone). The alleged bullying occurred while Ms Vohra was at work in her own business. She is eligible to make the application.
The more difficult issue is what can be done with the application in the circumstances. The alleged bullying is said to have occurred in the form of repeated business enquiries made by Ms Akrawi through Mo’s Mobiles about Judgez’s compliance with its obligations under the Sub Dealer Agreement. Mo’s Mobiles passed the enquiries on to Ms Vohra and sought her responses, which it then passed on to Vodafone. It is not in dispute that Ms Vohra has never had any direct dealings with Ms Akrawi.
Complicating matters further, the commercial relationship between Judgez and Mo’s Mobiles has now ceased. Ms Vohra’s last day of working under the Sub Dealer Agreement with Mo’s Mobiles was 23 April 2022. On 5 May 2022, Ms Vohra’s access to TPG systems was terminated and on 6 May 2022, Judgez was given notice of termination of the Sub Dealer Agreement by Mo’s Mobiles, with effect from 10 May 2022.
The question is whether the application has reasonable prospects of success. Ms Vohra has also sought to amend the application to add James Walkley of Mo’s Mobiles as a person engaged in bullying at work. For the reasons that follow, I have decided not to amend the application and to dismiss Ms Vohra’s application to the Commission.
Does the application have reasonable prospects of success?
As the Sub Dealer Agreement between Judgez and Mo’s Mobiles has now terminated, Judgez or its officers or employees, including Ms Vohra, are no longer authorised to deal in relation to Vodafone products. What remains of the commercial relationship between Judgez and Mo’s Mobiles is to “close out the contract”. In this respect, Judgez holds stock belonging to Mo’s Mobiles that needs to be returned. It owes money to Mo’s Mobiles relating to the sale of some of its stock on consignment. Finally, it remains lessee for the Clayton premises formerly operated as a Vodafone store. Mo’s Mobiles has an irrevocable right under the Sub Dealer Agreement to seek that the lease be assigned to Mo’s Mobiles, although it has indicated no intention to do so.
Vodafone has no ongoing interest in the activities of Judgez because Judgez is no longer authorised to deal in relation to Vodafone products. Judgez is not indebted to Vodafone in a monetary sense and nor, on the information before me, does it hold any property of Vodafone that might need to be returned. Contracts generated as a result of introductions from Judgez to Vodafone are contracts between Vodafone and its customers. Vodafone is not a party to the Sub Dealer Agreement. Following termination of that agreement, Vodafone has no independent contractual rights in relation to Judgez.
As to Ms Akrawi, it is not in dispute that there has never been any direct interaction between Ms Akrawi and Ms Vohra. There is also no evidence that this is likely to change in the future. The alleged bullying behaviour of Ms Akrawi was in the nature of repeated, overly frequent requests for information about Judgez’s activities as a Vodafone dealer. As the Sub Dealer Agreement has now terminated, Judgez is no longer performing that activity and would not be authorised to do so if it was.
Finally, Ms Vohra’s advice to the Commission is that it is unlikely that she will work with Mo’s Mobiles and/or Vodafone again. Ms Vohra has had no dealings with or in relation to Ms Akrawi since the Sub Dealer Agreement was terminated. Mo’s Mobiles agrees that there is no likelihood of a future working relationship between it and Judgez. To the extent that it is necessary for the two entities to interact, the interaction is likely to be confined to the closing out of the relationship between them, discussed above.
When considered in totality, I cannot see how in the circumstances there is any reasonable prospect that Ms Akrawi will have further dealings with, or in relation to, Judgez such that Ms Vohra is at risk of bullying at work by Ms Akrawi. There is no further need for Ms Akrawi to manage the relationship with Mo’s Mobiles in relation to Judgez. There is no need to make enquiries about whether Judgez is complying with directions given to it through Mo’s Mobiles under the Sub Dealer Agreement, because the Sub Dealer Agreement has terminated. There is no foreseeable prospect of Ms Akrawi having further dealings with, or in relation to, Ms Vohra - either while she is at work in the business of Judgez or otherwise.
Should James Walkley be named as an individual respondent?
Ms Vohra seeks to amend the application to add Mr Walkley of Mo’s Mobiles as respondent to the application. In essence, the reason for seeking to amend the application is that Mr Walkley is said to be the conduit for alleged bullying at work by Ms Akrawi (in circumstances where there has been no direct interaction between Ms Akrawi and Ms Vohra). Given my findings in relation to the risk of further bullying by Ms Akrawi, there is no utility in the amendment.
I decline to amend the application to add Mr Walkley as respondent.
Conclusion
For these reasons, I am not satisfied that there is a risk that Ms Vohra will continue to be bullied at work by Ms Akrawi. Satisfaction as to the existence of such risk is a necessary pre-condition to the making of orders to stop bullying at work. It follows that in my view, the application has no reasonable prospects of success.
The application is dismissed.
COMMISSIONER
Appearances:
S Vohra on her own behalf.
M O’Connor of Addisons on behalf of Mo’s Mobiles Pty Ltd.
A Kaye of The Workplace Employment Lawyers on behalf of TPG Telecom Limited/Vodafone.
Hearing details:
2022.
Sydney (by video):
May 30.
[1] Fair Work Act 2009 (Cth), s.789FC(2); Work Health and Safety Act 2011 (Cth), s.7(3).
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