Fizza Ali [2025] FWC 2382 (15 August 2025)

s.789FC - Application for an order to stop bullying

Application for an FWC order to stop bullying- application dismissed.

• [1] Ms Fiza Ali (the Applicant) seeks an order to stop bullying pursuant to s.789FC of the Fair Work Act 2009 (the Act). The Applicant alleges that she has been bullied at work during her employment with Narre Warren South Childcare and Kindergarten Pty Ltd t/a Astra Early Learning - Narre Warren South (AEL). More particularly, the Applicant alleges that she has been subjected to bullying at work by Ms Emma Robinson, Ms Rashmi Gandhi and Ms Andrea Harvey, who are employed by AEL. When referenced together, Ms Robinson, Ms Gandhi, Ms Harvey and AEL are hereafter referred to as the "Respondents."

• [2] In the main, the material filed with the Commission concerned an incident said to have occurred on 3 April 2025. The incident was raised by a parent of a child who attends at AEL. The parent, who is also an employee of AEL, alleged that she was working in one part of AEL's yard at the time of the incident and that her child was in another part. She said that although they were separated by a fence, she was able to observe the Applicant approach her child, ask him to move away from the fence and when he refused, forcefully lift him up by pulling one of his arms. The parent claimed that Ms Harvey, who was also a witness to the incident, became involved and told the Applicant to stop. Having witnessed this, and the Applicant's response, the parent requested an investigation. AEL, through Ms Robinson, commenced the requested investigation.

• [3] The Applicant is aggrieved by the investigation and AEL's response to it. She asserts the investigation process lacked procedural fairness, in that she was denied both access to a support person and an adequate opportunity to respond. She also claims she was subject to threatening and intimidating conduct during the process. By 8 April 2025, AEL had completed its investigation and during a meeting that day, it was conveyed to the Applicant that she was to receive a first written warning. The first written warning outlined that AEL had referred the incident to the Department of Education and the Commission for Children and Young People (CCYP).

• [4] The relevant remedy in respect of applications for an order to stop bullying are any orders the Commission considers appropriate to prevent the worker from being bullied at work by an individual or group of individuals. This is a discretionary power that is only exercisable if the Commission is satisfied that:

1. the worker has been bullied at work by an individual or a group of individuals; and

• 2. there is a risk that the worker will continue to be bullied at work by the individual or group.[1]

• [5] The Commission must therefore be satisfied of the first limb outlined above, and if so, the Commission must then also be satisfied there is a risk that the worker will "continue" to be bullied "at work" by the individual or group responsible for the bullying. For the purpose of determining this application, I will only be required to consider whether there is a risk that the Applicant will continue to be bullied at work by an individual or group of individuals if I am firstly satisfied that the Applicant has been bullied at work.

• [6] The Act provides that a worker is "bullied at work" if, while the worker is at work, an individual or group of individuals repeatedly behaves unreasonably towards the worker and that behaviour creates a risk to health and safety(s.789FD(1)). However, a worker will not be considered to have been bullied at work if the behaviour is reasonable management action carried out in a reasonable manner (s.789FD(2)). For the reasons that follow, I am not satisfied the Applicant has been bullied at work by an individual or group of individuals.

• [7] As regards the 3 April 2025 incident, I do not regard consider the actions of either AEL or any of the other Respondents constitute bullying at work. AEL, as a childcare provider, was required by the regulatory regime for that sector to act once it had received the complaint from the parent. Specifically, AEL was obligated to report the incident to the Department of Education and CCYP. AEL charged its Service Manager, Ms Robinson, with the responsibility of conducting an internal investigation which AEL was also required to carry out. Within this context, the reporting of the incident and the act of carrying out an investigation were, in my view, reasonable management actions within the meaning of s.789FD(2) of the Act. Furthermore, I consider these steps were carried out in a reasonable manner. While the Applicant contended that AEL should have held off the referrals to the Department of Education and CCYP, the prompt reporting of the incident to the Department of Education and CCYP was mandatory. I also do not consider that Ms Robinson behaved unreasonably in her conduct of the investigation. Ms Robinson gave the Applicant and each of the witnesses to the incident the opportunity to provide their account in writing and she then interviewed them. I am not persuaded that the Applicant was unreasonably denied a support person. I accept that the Applicant's first choice of a support person was travelling on business and that she initially sought another meeting time, however Ms Robinson's account satisfies me that the Applicant was given the option of having another support person but was ultimately comfortable proceeding to meet without one.

• [8] I have also not been persuaded that either Ms Gandhi or Ms Harvey acted unreasonably in relation to 3 April 2025 incident. Ms Gandhi's involvement was limited to sitting in on the meetings with the Applicant conducted by Ms Robinson and I note that she translated from English to Hindi and vice versa. For her part, Ms Harvey simply provided her account of the 3 April 2025 incident. The Applicant also alleges that during the 7 April 2025 meeting, Ms Robinson, Ms Ghandi and Ms Harvey told her the following; "We will destroy your career" and "We will cancel your educational certificate and Working With Children Check". As to this, I note that Ms Harvey did not attend the 7 April 2025 meeting with the Applicant and I further observe that the Respondent has no power to either remove a qualification from any individual and or revoke a Working With Children Check (WWCC). I consider these factors weigh against a conclusion that either Ms Robinson or Ms Gandhi made these statements, which were, in any event, denied.

• [9] The Applicant is aggrieved by the first written warning, which she disputes and considers should be retracted. She says that there was prejudgment and bias because the first written warning was issued so soon after the incident and asserts that she has suffered stress, dizziness, vision-related issues and increased anxiety as a result of the process. In support, the Applicant filed medical certificates stating she was unfit for work for the period 14-18 April 2025, 22 April to 20 May 2025 and 20 May 2025-17 June 2025 (inclusive). The Applicant also advised of consultations with a psychologist on 12 June 2025 and a psychiatrist on 30 June 2025. The Applicant proffered that AEL should have held off taking any action until the external reviews had been completed. In this regard, the Applicant relies on the apparent decision of CCYP, made on or about 6 June 2025, that her case was not appropriate for referral for WWCC reassessment but rather, one better addressed through training and supervision.[2]

• [10] The first written warning issued to the Applicant outlined that having considered the "situation" and documentation received, AEL had determined that there had been a lack of appropriate conduct by the Applicant having regard to the "Child Safe Standards and Children's Services Regulations." AEL detailed that in reaching its conclusion from the investigation into the 3 April 2025 incident, it had preferred the accounts of the parent, Ms Harvey and the student who was assisting Ms Harvey at the time that they had witnessed the Applicant pulling at the child's hand and arm. Confronted with three consistent versions of the 3 April 2025 incident, I consider it was reasonably open to AEL to do so, notwithstanding the Applicant's claim that she had gently held the child.

• [11] At the hearing, AEL explained that it takes the treatment of children in its care seriously, that it had determined that the outcome of a warning was preferable to dismissal in this case because it did not consider the Applicant's actions were either malicious or intentional, and that it had determined that the best response to the incident was training and support. The response of AEL was not, in my view, inconsistent with the conclusions of either CCYP or the Department of Education. I do not consider that either the warning, or AEL's other conclusions following the investigation constitute bullying at work.

• [12] As I do not consider that the Applicant was "bullied at work" by any of the Respondents when it comes to the 3 April 2025 incident and/or its aftermath, it cannot form any part of an assessment of whether there has been repeated unreasonable behaviour perpetrated towards the Applicant by any or all of them. This is relevant because the Applicant also contended that there had been prior discrimination directed towards her and no consideration given to the impact of ongoing bullying and stress she had been experiencing since late 2023 until April 2025.

• [13] In her material, the Applicant asserts that the first significant instance of workplace harassment and bullying began in September 2023, when she was made to feel isolated, targeted, and unfairly judged in day-to-day interactions by certain members of AEL's staff who are not named amongst the Respondents.

• [14] Email correspondence produced to the Commission indicates that the Applicant's husband raised issues in relation to two matters on 30 August 2023. The first related to the treatment he and the Applicant considered their child was receiving while attending AEL's facility. The second was a complaint that there had been disrespectful behaviour directed at the Applicant. Ms Gandhi responded to the Applicant's husband's email on behalf of AEL. She conveyed that AEL had not been persuaded that the state of affairs in relation to the child was as the Applicant and her husband had perceived but she nonetheless made an offer to meet. This offer was accepted and after a meeting on 5 September 2023, Ms Gandhi sent the Applicant's husband an email in which she addressed the contention that the Applicant had not been treated with respect by another staff member, by outlining:

"When Fizza expressed her concerns today, we have already addressed this with Fizza and other staff members today and Fizza mentioned to us that she is satisfied with the outcome of our meeting we had today. However, but if she still has any concerns or not satisfied with today's outcomes, we are welcome her to come and see us and discuss further."

• [15] At 3.01pm on 6 September 2023, the Applicant's husband sent another email. This email was addressed to Ms Zhang, Owner of AEL, and contained the allegation that the Applicant had been harassed by two other staff members, leaving her feeling increasingly uncomfortable and unsafe. The Applicant's husband requested an investigation. The Applicant also sent a separate email to Ms Zhang at 5.01pm that day, in which she claimed to have been harassed by a colleague after the issue relating to the Applicant's child had been raised. The Applicant also asserted that a colleague had expressed concerns about her (the Applicant's) work performance and had mentioned that the Applicant was emitting "a very bad smell." The Applicant requested Ms Zhang's intervention because this had distressed her.

• [16] Ms Zhang responded to the Applicant's husband by sending an email at 8.17pm on 7 September 2023. In this email, Ms Zhang outlined that her initial investigations did not correspond with his allegations but she hoped their forthcoming discussion, scheduled for Friday 8 September 2023, would arrive at a solution. Following the 8 September 2023 meeting, Ms Zhang sent an email to the Applicant and her husband on Monday 11 September 2023. This email detailed some specific outcomes in relation to the Applicant's child but also included refence to "recent [sic] raised matters."

• [17] At the hearing, Ms Zhang said that the topic of the Applicant's body odour was amongst the matters addressed during the 8 September 2023 meeting, albeit it was not the main topic of conversation. Ms Zhang recounted that this topic had first been raised with the Applicant by another colleague in response to complaints that had been made other staff. Ms Zhang intimated that this initial discussion had not gone well but said that AEL staff had been instructed not to mention the body odour issue thereafter and that a communication had been circulated to all staff regarding hygiene. AEL asserts that the matters raised in September 2023 were therefore resolved at that time to the Applicant's satisfaction, relying on an email in reply sent by the Applicant's husband on 11 September 2023, which stated:

I hope this message finds you in good spirits. We wanted to extend our sincere gratitude for your exceptional problem-solving skills and the invaluable assistance you've provided to us.

We truly appreciate your efforts, and we wanted to take a moment to express our heartfelt thanks for your unwavering support.

Thank you once again for your outstanding problem-solving capabilities and your dedication to our success.

• [18] The Applicant countered this by asserting that the only issue resolved in September 2023 was that which had related to her child. However, this was not altogether consistent with the materials she had filed ahead of the hearing, which contained the following statements:

"The first significant instance of workplace harassment and bullying began in September 2023. I was made to feel isolated, targeted, and unfairly judged in day-to-day interactions by certain staff. This treatment deeply affected my confidence and mental wellbeing**. I took the courageous step of reporting these issues, and the owner of Astra, Michelle, personally intervened to resolve the matter. At that time, I felt reassured that steps were being taken to ensure a fair and respectful environment**."[3]

• [19] The Applicant sought to explain her position by outlining that after Ms Zhang's initial involvement, there was no "proper" follow-up or monitoring by AEL management. She also sought to counter the claim that she had not raised any further matters by outlining that she had chosen to remain silent in the face of further instances of exclusion and unfair behaviour because she feared retaliation and judgment. The Applicant also said that she was afraid to keep repeatedly involving Ms Zhang because she did not want to be seen as a troublemaker.[4]

• [20] The Applicant maintains that from 2023 through to April 2025, she was subjected to ongoing bullying on more than a dozen occasions that included verbal abuse, public humiliation, exclusion and threats against her professional future and unfair disciplinary actions, and that she had repeatedly been spoken to in a condescending and aggressive manner. Other bullying and harassment the Applicant alleges she was subjected to comprise:

1. A disputed claim of a reduction of shifts, whereby the Applicant's workdays were suddenly reduced from 5 to 4 days per week without explanation written notice or explanation.

As to this, I accept Ms Robinson's evidence that this reduction in workdays was implemented in response to a request from the Applicant[5] and note the evidence of Ms Harvey at the hearing that when the Applicant requested to revert to 5 days per week, this was not possible because of the falling demand AEL was experiencing.

1. Claims of an unfair workload and having to provide break coverage.

These claims were disputed by Ms Robinson and countered with the assertion that while the Applicant's initial role was to provide break coverage, this did not entail an additional workload and as circumstances changed, she did in fact become assigned to a particular room.[6]

1. Being spoken to in a degrading and bossy tone by Ms Robinson and Ms Harvey.

This was denied by Ms Robinson and Ms Ghandhi and the Applicant's allegation was countered with the allegation that it was the Applicant who, on occasion, yelled and had to be asked to communicate professionally and calmly.[7]

1. An absence of support and mental health accommodations despite having exhibited visible symptoms, such as headaches, nausea, photophobia and two incidents of sudden vision loss.

In response, it was asserted that no symptoms of this kind were ever brought to the attention of management until after the 3 April 2025 incident.

1. A toxic work environment leading to a high staff turnover because of ongoing mistreatment by management.

That AEL has a high turnover of staff was explicitly denied and Ms Robinson's evidence was that the predominant reasons why educators have left the employ of AEL have been geographical considerations and career changes.[8]

• [21] While the Applicant asserted that her complaints were ignored and argued that the requisite policies and procedures for handling complaints had not been followed, the position of AEL is that the only occasion upon which the Applicant made a complaint prior to April 2025 was during the series of events in September 2023.

• [22] I accept that the Applicant raised matters in September 2023 but am satisfied that these were resolved to the Applicant's satisfaction at that time. I am not, however, persuaded that the Applicant was "bullied at work" between September 2023 and April 2025. The first time the Applicant raised allegations of having been repeatedly "bullied at work" since September 2023 was after she had been notified of the first written warning arising out of her actions in the 3 April 2025 incident. Having regard to this context and the evidence before the Commission, I have not been persuaded that an individual or group of individuals repeatedly behaved unreasonably towards the Applicant after September 2025 and until April 2025.

• [23] I do not consider that the Applicant was "bullied at work" in the aftermath to the 3 April 2025 incident by the behaviour of any of the Respondents.

• [24] I am satisfied that the matters raised in September 2023 were resolved to the Applicant's satisfaction at that time.

• [25] I have not been persuaded that an individual or group of individuals repeatedly behaved unreasonably towards the Applicant after September 2025 and until April 2025.

• [26] I am not persuaded that the Applicant has been "bullied at work" and I therefore dismiss the Applicant's anti-bullying application. An order dismissing the Applicant's anti-bullying application will be issued along with this decision.

[1] Fair Work Act 2009 (Cth) 789FF(1).

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