Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against decision [2020] FWC 2458 of Commissioner Booth at Brisbane on 26 May 2020 in matter number AB2018/705

[1] Ms Anne Pilbrow has applied for permission to appeal against a decision of Commissioner Booth issued on 26 May 2020[1] (decision) in which the Commissioner dismissed Ms Pilbrow's application made pursuant to s 789FC of the Fair Work Act 2009 (FW Act) for anti-bullying orders against Ms Iris Edmondson.

[2] The background against which this matter arises is as follows. Ms Pilbrow has been employed as a nurse by Ultrarad Pty Ltd t/a trustee for the Ultrarad No 2 Unit Trust (Queensland X-Ray), a radiology business, since 2 October 2017, and has been located at the Greenslopes Hospital practice. Ms Edmondson is Queensland X-Ray's Head Nurse for all of Queensland and is also the Nurse Manager at the Greenslopes Hospital practice. The bullying allegations arose from a series of interactions between Ms Pilbrow and Ms Edmondson which occurred after Ms Pilbrow suffered a non-work injury to her finger which affected her work capacity in early May 2018. Ms Pilbrow returned to work, but then re-injured her finger later the same month and was required to use her leave entitlements to cover her subsequent absence from work. She was cleared to return to work in late July 2018, and was directed to commence work at a different location, at Queensland X-Ray's practice at the Mater Hospital. However, shortly after commencing work at this location, Ms Pilbrow was then relocated to the practice at the Queen Elizabeth II Hospital (QEII Hospital). It appears that Ms Edmondson either performed some relief work at the QEII Hospital or had administrative dealings with Ms Pilbrow while she was there.

[3] In October 2018, some work performance issues were raised with Ms Pilbrow. On 31 October 2018, Ms Pilbrow went off work because of illness, and has not returned to work since that date. Ms Pilbrow lodged her anti-bullying application on 12 November 2018. The allegations made by Ms Pilbrow against Ms Edmondson in the application, as summarised by the Commissioner in the decision,[2] were as follows:

1. Allegations of assault and other conduct designed to threaten or belittle Ms Pilbrow.

2. Assignment of duties issues, including: refusal to assign light duties consistent with medical requirements; lack of consultation about allocation of duties at other work locations; limited or poor responses to Ms Pilbrow's expressed concerns about changes to her work location and duties.

3. Unreasonable enquiries by Ms Edmondson about Ms Pilbrow's work hours and entitlements.

4. Limited training and professional opportunities.

[4] Ms Pilbrow also complained in her application that there had not been an adequate response from Queensland X-Ray's human resources management to her allegations of bullying when she had raised them internally.

[5] After the application was filed, Queensland X-Ray reviewed Ms Pilbrow's bullying allegations. While it did not conclude that she had been bullied by Ms Edmondson, it has put in place arrangements to ensure that Ms Pilbrow will not be bullied if and when she returns to work. These include that:

• she will be placed at the Mater Hospital practice[3] and thus will not work on a day-to-day basis with Ms Edmondson (who remains at Greenslopes Hospital);

• she will report to and be managed by the Nurse in Charge at the Mater Hospital, and Ms Edmondson will have no role in her management;

• Ms Edmondson will not be required to perform relief work at the Mater Hospital; and

• she will not be required to attend nurses' meetings, which Ms Edmondson usually leads.

[6] In the decision, the Commissioner analysed in detail the evidence given in respect of each allegation, and findings in relation to each. The Commissioner ultimately found that, whilst Ms Pilbrow had a strong perception that she had been the subject of bullying at work by Ms Edmondson, her allegations were not borne out by the evidence and the relevant conduct towards her was reasonable management action carried out in a reasonable manner. The Commissioner dismissed the application. The Commissioner however also made a number of recommendations, including that Queensland X-Ray renew its offer to Ms Pilbrow for her to work at the Mater Hospital once she was medically fit to return to work.

[7] Ms Pilbrow's appeal grounds, as set out in her notice of appeal, are as follows:

"This decision was based around performance management which was never the case

The commissioner has missed crucial points of Assault

Commissioner believes I was called to a performance management meeting which is not the case

No documented evidence whatsoever for Performance management as I called and asked for the meeting

No consideration for not being able to attend a medical appointment and adverse actions for attending medical appointment

Overlooked being asked to supply S4 drugs without a drug register at QE11"

[8] Ms Pilbrow stated the following in her written submissions in support of her application for permission to appeal:

"Why it is in the public interest to grant permission to appeal:

• Risk assessments had not been dealt with and continue to manifest at the workplace.

• Risk of future bullying founded on the evidence of the past experience with workplace culture, culture endemic in the system has not changed and will need more time and effort to shift and ultimately eradicate.

• Lack of management practices to set and enforce appropriate standards of behaviour

• Ongoing/Continued risk as HR continues to not respond to emails or acknowledge receipt of receiving emails from me."

[9] Ms Pilbrow's submissions also re-agitated in summary form the factual contentions she had advanced before the Commissioner, and include the allegation that Ms Edmondson and Queensland X-Ray's HR Manager had lied on oath in giving their evidence before the Commission and that Ms Edmondson's "rude" conduct at the hearing before the Commissioner would continue to put Ms Pilbrow at risk at work.

[10] Section 604(2) requires the Commission to grant permission to appeal if it is satisfied that it is in the public interest to do so. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[4] The public interest is not satisfied simply by the identification of error or a preference for a different result.[5] In GlaxoSmithKline Australia Pty Ltd v Makin, a Full Bench identified some of the considerations that may attract the public interest:

"... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters."[6]

[11] Aside from the special case in s 604(2), the grounds for granting permission to appeal are not confined. Considerations traditionally adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration, and that substantial injustice may result if leave is refused.[7] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[8] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[9]

[12] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[10] However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.

[13] We are not satisfied that permission to appeal should be granted, either in the public interest or on discretionary grounds, for three reasons. First, the appeal does not raise any question of law or any issue of importance, general application or diversity in first-instance decision-making requiring consideration at the Full Bench level. Second, the appeal grounds do not involve any genuine contention of appealable error. Rather, the appeal grounds in substance merely invite the reconsideration by the Full Bench of the case advanced by Ms Pilbrow at first instance. In the absence of any arguable case of appealable error, it cannot be said that the decision manifests any injustice.

[14] Third, the grant of permission to appeal would be a futility, since there is no reasonable prospect of Ms Pilbrow ultimately obtaining an anti-bullying order even if her appeal was upheld and the Commission was persuaded that she had been bullied as she alleged. Section 789FF(1) of the FW Act establishes the jurisdictional prerequisites for the making of an order to stop bullying. It provides:

(a) a worker has made an application under section 789FC; and

(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.

[15] In relation to s 789FF(1), the Full Bench in Mekuria v Mecca Brands Pty Ltd[11] said:

"[29] Apart from the requirement for an application to have been made under s 789FC, s 789FF(1) establishes two prerequisites: first, the Commission must be satisfied that the worker has been bullied at work by an individual or group of individuals and, second, the Commission must be satisfied that there is a risk that the worker will continue to be bullied at work by the individual or group. The use of the definite article in s 789FF(1)(b)(ii) in connection with the individual or group of individuals indicates that they must be the same as the individual or group of individuals considered for the purpose of s 789FF(1)(b)(i). That is, it is not sufficient to satisfy the second condition in s 789FF(1)(b)(ii) by demonstrating that there is a risk of being bullied at work by individuals other than those who have been found to have engaged in bullying pursuant to s 789FF(1)(b)(i)."

[16] Therefore, in order for Ms Pilbrow ultimately to succeed in her application, it would be necessary for her in regards to the second jurisdictional prerequisite to demonstrate that there is a future risk that she will continue to be bullied at work by Ms Edmondson, the person named as having engaged in the alleged bullying in Ms Pilbrow's application. There is no reasonable prospect of this occurring because:

(1) Ms Pilbrow went off work on 31 October 2018, and has not since returned to work. There cannot be a risk of her being "bullied at work" if she is not at work.

(2) If at some future time Ms Pilbrow does return to work, on the evidence before the Commission, Queensland X-Ray will apply the measures identified in paragraph [5] above to ensure that Ms Pilbrow cannot be bullied by Ms Edmondson. There was no contention in the appeal that these measures were advanced other than in good faith or that they would not be effective to protect Ms Pilbrow from any risk of future bullying by Ms Edmondson.

[17] Noting that both limbs of s 789FF(1) must be met for the Commission then to consider the exercise of the discretion to make an order to stop bullying, if the second limb is not and will not be met, Ms Pilbrow's application is doomed to failure for this reason alone.

[18] Accordingly, for the above reasons, we are not satisfied that it would be in the public interest to grant permission to appeal, nor is permission to appeal warranted on any other basis.

[19] Permission to appeal is refused.

[1] [2020] FWC 2458

[3] It was clarified at the hearing that the above applies to both Queensland X-Ray's Mater private hospital practice and its newer Mater public hospital practice, and Ms Pilbrow could elect which one to return to.

[4] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]- [46]

[5] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]- [27]

[7] Also see CFMEU v AIRC [1998] FCA 1404, 89 FCR 200, 84 IR 314 at 220; and Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [26]

[8] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]

[9] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]

[10] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]

[11] [2019] FWCFB 2771, 289 IR 105

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