Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against decision [ [2017] FWC 3688] of Commissioner Gregory at Melbourne on 12 July 2017 in matter number AB2016/497

[1] Mr John Krnjic has made an application for permission to appeal a decision of Commissioner Gregory issued on 12 July 2017[1] (Decision) under s 604 of the Fair Work Act 2009 (FW Act). In the Decision the Commissioner considered an application made by Mr Krnjic under s 789FC of the FW Act for the Commission to make an order to stop bullying. Mr Krnjic is employed by the Bunnings Group Limited (Bunnings), and worked at its Northland Shopping Centre Store in Preston. He alleged that he had been bullied by his team leader, Ms Xhensila Morihovitis. However the Commissioner was unable to find that the alleged behaviour toward Mr Krnjic constituted bullying and dismissed Mr Krnjic's application.

[2] Mr Krnjic's appeal application was lodged on 5 September 2017, 55 days after the Decision was handed down. Rule 56(2) of the Fair Work Commission Rules 2013 (Rules) relevantly provides that a notice of appeal under s.604 must be filed within 21 calendar days after the date of the decision the subject of the appeal or within such further time allowed by the Commission on application by the Appellant. Section 585 of the FW Act requires that any application to the Commission be made in accordance with the applicable procedural rules. Accordingly it is necessary for Mr Krnjic to obtain an extension of time under r 56(2) in order for his appeal application to be competent.

[3] The background to the matter is outlined in some detail in the Decision[2] but can briefly be summarised as follows. Mr Krnjic has been employed as a Team Member in the Electrical Department of the Bunnings' Preston store since 2009. Ms Xhensila Morihovitis commenced working at the store as a G4 Team Leader in April 2016. The incidents that Mr Krnjic alleged constituted bullying occurred in May and June 2016. They first involved a single incident in May 2016 in which Ms Morihovitis asked Mr Krnjic a question about his facial appearance, in circumstances where Mr Krnjic has a disability, and then two other occasions in June 2016 where she inquired as to his whereabouts when he was not in the Electrical Department during his shift. Mr Krnjic regarded the question about his appearance as disrespectful and hurtful, and in relation to the questioning about his whereabouts (which he described as "incessant"), considered he had been singled out, micro-managed and treated differently from other employees.

[4] Following these incidents both Mr Krnjic and his union representative made several attempts to contact the store manager to make a report, but were told that she was unable to speak with them. Around this time Mr Krnjic took two days off work due to work-related stress, which was supported by a medical certificate from his doctor. Upon his return to work on 16 June 2016, Mr Krnjic was advised by his Duty Coordinator that he was being suspended with pay pending an investigation concerning his workplace conduct. The investigation was in response to a complaint made by Ms Morihovitis regarding the reaction and response of Mr Krnjic to her questions about his whereabouts, which she regarded as inappropriate. Mr Krnjic then lodged a counter-complaint against Ms Morihovitis, alleging that she had bullied him. On 6 February 2017 Mr Krnjic was required to attend a meeting with the store manager and Ms Kelli Sullivan, Bunnings' Human Resources Manager. He was advised that the outcome of the investigation was that a first and final warning which had been issued to Mr Krnjic on a previous occasion was extended for a period of 12 months. Mr Krnjic has been off work since his suspension on 16 June 2016 and remains on unpaid sick leave, which has been supported by medical certificates provided by his doctor.

[5] The circumstances in which the Commission is empowered to make an order to stop bullying in response to an application made under s 789FC are set out in s 789FF(1) as follows:

(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.

[6] The expression "bullied at work" is defined in s 789FD(1) and (2) as follows:

(a) while the worker is at work in a constitutionally-covered business:

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.

[7] As required by the above provisions, the Commissioner assessed whether the incidents relied upon by Mr Krnjic, to which we have earlier referred, constituted him being "bullied at work" - that is, repeated unreasonable behaviour towards Mr Krnjic which created a risk to his health and safety. The Commissioner made findings of fact as to what had occurred in respect of each incident. His conclusions in relation to the incident in which Ms Morihovitis questioned Mr Krnjic about his facial appearance were that Ms Morihovitis' "behaviour in raising the issue of Mr Krnjic's appearance was, at best, insensitive and inappropriate", although not malicious, but also that Mr Krnjic did not attach particular significance to it at the time it occurred.[3] Importantly the Commissioner said: "It is also evident that Ms Morihovitis' actions at this point were a 'one-off' and not something that formed part of a pattern of repeated unreasonable behaviour".[4]

[8] With respect to the two occasions on which Ms Morihovitis questioned Mr Krnjic's whereabouts, the Commissioner said that he was unable to conclude that her behaviour in the circumstances was unreasonable and that it was not possible to conclude that Mr Krnjic was singled-out, micro-managed or treated differently from anyone else in the same situation. Ms Morihovitis, he said, was as a Team Leader entitled to know where her team members were and what they were doing, and while her approach may have been abrupt and different to that of her predecessors, this was not enough to substantiate any allegation of bullying.[5] The Commissioner relevantly concluded:

"[63] The legislation also imposes a requirement for repeated behaviour... The present matter essentially involves two separate sets of circumstances. Firstly, the conversation that took place in May and, secondly, the issues to do with Mr Krnjic's whereabouts in the Store in June. As indicated, it is acknowledged that a relatively limited number of incidents might constitute repeated behaviour. However, I am not satisfied that the events involved in the present circumstances can be said to demonstrate a concerted pattern of behaviour that involves repeatedly behaving unreasonably. It follows that I am again unable to conclude that they constituted bullying at work."

[9] The Commissioner expressed some concern about the manner of Mr Krnjic's suspension and a subsequent direction that he not attend the Preston store as a customer whilst suspended, but these matters were not alleged by Mr Krnjic to constitute bullying at work.[6] The Decision finished with the following statement:

"However, for the reasons set out in this decision I am unable to conclude in all the circumstances that Ms Morihovitis has repeatedly behaved unreasonably toward Mr Krnjic in a way that can be said that he has been bullied at work. It follows that his application must be dismissed. It is to be hoped that he is now in a position where he is able to return to work and resume his duties."

[10] The grounds of appeal set out in Mr Krnjic's notice of appeal were as follows:

"1. Despite the overwhelming evidence, Commissioner Gregory dismissed my application for a Stop Bullying Order.

1. Commissioner Gregory ignored the proven fact that the so called "independent investigation" was orchestrated by Bunnings and conducted by their associates VCCI, which was nothing else but one sided and biased.

2. Commissioner Gregory refused my request to recall my witness and allow me to cross-question Mr. Pitt.

3. My understanding of Fair Work was for them to: "Provide fair hearings which means giving all parties the opportunity to put forward their case, and to have that case dealt with impartially (not favouring either side) and according to law. The Act requires the Commission to: be fair and just, act quickly etc. If you look at the evidence, if you consider the fact that I was SUSPENDED for 8 months, that the Bunnings "independent investigation" dragged on for 6 months and at the end of that 15 month pointless process I still end up with a DISMISSAL. Then it is impossible to call this fair."

[11] The notice of appeal contended that permission to appeal should be granted on the following grounds:

"In 2011 Brodie's Law was introduced to protect vulnerable and defenceless people like me from belittling and bullying in a workplace. I put up with this cowardly and despicable behaviour for seven long years. If the Australian system of laws, including Fair Work Commision, cannot protect my dignity as a human being regardless of my disability, then who can? I simply do not believe that I have received a fair trial. The dismissal of my application for a stop bullying order, which is supposed to enable me to return to work and a normal life, will not stop me in my pursuit for justice."

[12] On 6 September 2017 the Commission issued directions for the hearing of Mr Krnjic's appeal application under which he was required to file an outline of submissions prior to the hearing before us on 18 October 2017. Mr Krnjic did not file any such outline of submissions, and on 27 September 2017 he advised by email that he would seek to rely simply on his notice of appeal as well as two documents attached to that email, being firstly a mental health capacity assessment of Mr Krnjic authored by Dr Byron Rigby and secondly a statement of a previous store manager, Kiane Namdarian-Smith.

[13] In response to this email, on 27 September 2017, Bunnings filed an application seeking to have Mr Krnjic's appeal dismissed, or alternatively, to have the Commission issue a direction that Mr Krnjic provide further and better particulars regarding all aspects of the appeal. Bunnings sought the dismissal of the application on the grounds that Mr Krnjic had not provided his appeal book within time, had not complied with the direction to file an outline of submissions, had provided a mental health assessment authored after the Decision and a statement of a witness who was not called during proceedings, and further had not provided any evidence that his appeal was not frivolous or vexatious or had any prospects of success. Mr Krnjic was provided with an opportunity to respond to Bunnings' application, and did so on 3 October 2017. On 3 October 2017 the Commission advised that it would not dismiss the appeal application summarily and the matter would proceed to hearing as listed.

[14] In his oral submission at the hearing of the appeal, Mr Krnjic explained the history and circumstances of his matter and submitted that the conduct of Ms Morihovitis constituted bullying. In respect of the delay in filing his appeal application, Mr Krnjic said that the Decision was handed down while he was in Sweden visiting his parents. This trip was extended to enable Mr Krnjic to help to look after his father, who was ill, and he did not return to Australia until 7 September 2017. He explained that in Sweden he did not have the technology available to him at his parent's house, including a laptop and scanner, to enable him to complete and send the paperwork for making an application. It was only toward the end of his time in Sweden that Mr Krnjic visited a family member in Sweden and made use of their technology to file his appeal application.

[15] In its written and oral submissions, Bunnings submitted that:

• an extension of time should be refused, since Mr Krnjic did not have an adequate explanation for the considerable delay in filing his appeal application;

• if an extension of time was granted, permission to appeal should be refused because the appeal lacked merit and raised no issue that would attract the public interest or was otherwise of significance;

• if permission to appeal was granted, the appeal should be dismissed because the Decision was not attended by appealable error.

[16] For the reasons earlier explained, it is first necessary to consider whether Mr Krnjic should be granted an extension of time to file his appeal application. The principles usually applied to the consideration of an application to extend time to lodge an appeal were summarised in the Full Bench decision in Jobs Australia v Eland[7] as follows (footnotes omitted):

"[5] Time limits of the kind in Rule 56 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The authorities indicate that the following matters are relevant to the exercise of the Tribunal's discretion under Rule 56(2)(c):

• whether there is a satisfactory reason for the delay;

• the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and

• any prejudice to the respondent if time were extended."

[17] We have earlier set out Mr Krnjic's explanation for his delay in filing his appeal. We consider that he has given a less than satisfactory explanation for the delay, for three reasons:

(1) Although Mr Krnjic was in Sweden at the time the Decision was issued, it was not suggested that there was any delay in him becoming aware of the Decision. The Decision was emailed to the email address provided to him in accordance with the Commission's usual practice, and it is readily apparent that Mr Krnjic had access to his emails while overseas.

(2) There is no factual dispute that Mr Krnjic was involved in the care of a sick parent in Sweden, but we are not satisfied this was such as to prevent him from filing his appeal application within the prescribed 21-days or at least earlier than he did. We note in particular that on 15 August 2017 Mr Krnjic was able to send, by email, a detailed reply to an email sent to him on 1 August 2017 by Ms Sullivan on behalf of Bunnings concerning Mr Krnjic's fitness to return to work. Although there was a two-week delay in sending the reply, it does not indicate that Mr Krnjic was completely unable to deal with matters concerning his employment. It certainly demonstrates he had access to a computer.

(3) The Commission's website has a facility for applications, including appeal applications, to be made entirely electronically. The use of a printer and scanner is not required. It is clear that Mr Krnjic had access to the Commission's website while in Sweden because he eventually filed the appeal application electronically from Sweden.

[18] The delay involved was almost two months, which is not insubstantial. However the delay did not cause any prejudice to Bunnings in its capacity to conduct the appeal. We would be inclined therefore to grant an extension of time if the appeal had some prospects of success. However it does not. Mr Krnjic has not identified any error in the factual findings made by the Commissioner concerning the three instances of conduct on the part of Ms Morihovitis which constituted the alleged bullying. The task of determining, on the basis of those findings, whether the conduct on the part of Ms Morihovitis in all or any of those incidents was "unreasonable" involved the making of an evaluative judgment, akin to the exercise of a discretion. We consider that the conclusions reached by the Commissioner in that respect were reasonably open to him, and further we agree with them. The substance of the Commissioner's findings was that only in the first incident, in which Ms Morihovitis inquired about Mr Krnjic's facial appearance, was her behaviour potentially capable of being characterised as unreasonable, and the other two incidents were not. In those circumstances, the Commissioner was compelled to the conclusion that Ms Morihovitis had not "repeatedly" behaved unreasonably towards Mr Krnjic. On no view could a single instance of arguably unreasonable conduct constitute the repeated behaviour necessary to constitute bullying at work.[8] Having reached that position, it was not necessary for the Commissioner to make the further inquiry as to whether Ms Morihovitis' behaviour created a risk to health and safety.

[19] The specific matters raised in Mr Krnjic's grounds of appeal do not add to the merit of his appeal. The first ground refers to the "overwhelming evidence" in Mr Krnjic's favour, but (as already stated) Mr Krnjic did not identify any error of fact of any substance in the Decision, nor did he demonstrate that there was any factual matter of relevance which the Commissioner failed to take into account. This ground amounts to no more than a plea to re-decide the case in Mr Krnjic's favour. In the second ground, Mr Krnjic contends that the Commissioner erred in not taking into account that Bunnings' internal investigation of his complaint of bullying (and Ms Morihovitis' report of his conduct) was not "independent" because it was conducted by an officer of Bunnings' own employer association. However whether the internal investigation was independent, or needed to be, was not a relevant consideration. The Commissioner made his own findings of fact about the alleged incidents, and applied the statutory tests for bullying to those findings; he did not rely upon the findings produced by the investigation. Mr Krnjic did not specifically allege that the investigation itself constituted an act of bullying, so it did not need to be considered in those terms. Beyond forming part of the background of the matter, it was not a matter which constituted a relevant consideration in the determination of Mr Krnjic's application.

[20] The third ground raises a procedural issue, namely that the Commissioner failed to allow Mr Krnjic to recall his witness, Mr Neville Pitt, to give evidence. The relevant circumstances were that Mr Pitt made a witness statement which was admitted into evidence. That statement described the incident on 8 June 2016 when Ms Morihovitis inquired as to Mr Krnjic's whereabouts, which Mr Pitt witnessed. At the outset of the hearing on 29 March 2017, the Commissioner inquired of Mr Krnjic whether he intended to adduce any further evidence from Mr Pitt, to which Mr Krnjic replied: "I would like him to have an opportunity to speak".[9] Shortly afterwards the Commissioner said: "I understand that you then wish to have Mr Pitt sworn as a witness and you are going to adduce some further witness evidence from him", to which Mr Krnjic replied "Yes, just verbal - yes".[10] There was no suggestion on the part of Mr Krnjic before us that he failed to understand these exchanges. It is clear that the Commissioner was prepared to allow Mr Krnjic to adduce oral evidence from Mr Pitt in addition to the matters contained in his witness statement. When Mr Pitt was called to give evidence, the following exchange occurred between the Commissioner and Mr Krnjic:

"THE COMMISSIONER: Thank you, Mr Pitt. I notice that you have provided a witness statement that is attached to Mr Krnjic's statement. Mr Krnjic, first of all, do you have any - Mr Pitt has provided a statement, do you wish to clarify any aspects of that statement in terms of any further evidence that Mr Pitt might want to provide?

[21] Mr Krnjic did not seek to ask any further questions of Mr Pitt. Mr Pitt was then cross-examined by the representative for Bunnings. At the end of the cross-examination, Mr Krnjic sought to ask Mr Pitt a question in re-examination, which after objection was allowed. Mr Krnjic then said to Mr Pitt "Thank you very much for your involvement in the proceedings", and Mr Pitt was excused.[12] There is nothing that can be discerned from the transcript that suggests any denial of an opportunity for Mr Krnjic to adduce further relevant evidence from Mr Pitt. Later in the day, when Ms Morihovitis was called to give evidence by Bunnings, it became apparent that Mr Krnjic was not in a position to cross-examine her because of his lack of understanding that her witness statement, which had previously been served on him, constituted the evidence she was to give to the Commission. The Commissioner then adjourned the matter on the basis that Mr Krnjic was to advise whether he wished to cross-examine Ms Morihovitis (or Ms Sullivan, Bunnings' other witness) within seven days, and a further hearing date would then be set. On 5 April 2017 Mr Krnjic sent the following email to the Commissioner's chambers:

"I am writing this letter to inform you that I wish to exercise my rights and proceed with the cross-examination of both witnesses, Ms. Kelli Sullivan and Ms. Xhensila Morihovitis.

I also wish to apologise for my unpreparedness during cross-examination at the last hearing. I was not aware nor did I expect to be placed in a position to deal with such situation. That is the reason why I did not have any questions and why I felt compelled to ask for an adjournment.

I did not have any knowledge or previous experience in Fair Work hearings. To be totally honest, my understanding and anticipation was that the Commissioner would question the witnesses.

In the past few days I've done some research on the Internet and now I am coming to grips with an idea of what is required in the hearing process. I understand that cross-examination is an important and vital part of the conduct of the hearing. I also acknowledge it is a very difficult exercise which requires good knowledge of the rules of evidence to cross-examination. After all, I am certainly willing and prepared to try my best.

Furthermore, in the interest of a fair and just hearing I would kindly request a recall of my witness, Mr. Neville Pitt. I don't believe that I was given a fair opportunity to properly question this witness. Bearing in mind that bullying in the workplace is a very serious matter, I trust that this witness would give a valuable insight into events surrounding the 8th of June 2016.

I recognize that it must be difficult and challenging for you to deal with an unrepresented litigant and I wish to thank you for your patience and understanding."

[22] In an email sent to the Commissioner's chambers on 7 April 2017, Bunnings (among other things) opposed the recall of Mr Pitt. Mr Krnjic sent a further email to the Commissioner's chambers on 24 April 2017 dealing with a range of matters which concluded with the following statement:

"If we are going to be honest and fair, it is an undeniable fact that I was not in a position to question Mr. Pitt or anyone else. Yet, Bunnings' Representative will not come short of accusing me of "eliciting further evidence". This only shows that truth would be very inconvenient for them. However, I don't wish to argue over this and I will respect your decision whatever that might be."

[23] The hearing resumed on 17 May 2017. Mr Krnjic cross-examined Ms Morihovitis and Ms Sullivan, and then he and Bunnings made their final submissions. The issue of recalling Mr Pitt was not raised by Mr Krnjic again, and there is no indication in the record of the proceedings that his request to recall Mr Pitt was ever actually refused by the Commissioner.

[24] None of these circumstances disclose any arguable case of procedural unfairness. Mr Krnjic was able to put into evidence Mr Pitt's account of the 8 June 2016 incident in his witness statement, and was then given a fair opportunity to adduce further oral evidence from him. Mr Krnjic has not identified, either before the Commissioner or before us, what further evidence of relevance he wished to adduce from Mr Pitt. To the extent that it might be said the Commissioner implicitly rejected the request to recall Mr Pitt, or if he did so "off the record", that was a course that was clearly reasonably available to him and caused no apparent injustice to Mr Krnjic. The third appeal ground is not reasonably arguable.

[25] The fourth appeal ground involves a generalised complaint about the proceedings before the Commissioner and Bunnings' conduct in investigating the complaints by Ms Morihovitis and Mr Krnjic. There is no further specification of any procedural unfairness on the part of the Commissioner. As to Bunnings' conduct, while on one view its investigation did take an excessively long time to complete, it was not the task of the Commissioner to inquire into generalised claims of unfairness on the part of Bunnings, but to make findings about the specific claims of workplace bullying. Finally, we note that the proposition in the appeal ground that Mr Krnjic has been dismissed is simply wrong. The fourth appeal ground does not contain any reasonably arguable contention of appealable error.

[26] The two additional documents that Mr Krnjic sought to rely upon in the appeal do not take the matter any further. The first is a medical assessment dated 9 September 2017, which indicates that Mr Krnjic is fit to return to work on a graduated basis. No error in the Decision could be demonstrated on the basis of this document. The second is a statement made by Ms Kiane Namdarian-Smith, a Bunnings Manager, for the purpose of a workers' compensation claim or some other legal claim made by Mr Krnjic. Mr Krnjic did not explain why this statement, which was made on 17 August 2016, could not have been placed into evidence before the Commissioner. As to its contents, it is sufficient to say that there is nothing in it which assists his case.

[27] None of the grounds of appeal are sufficiently meritorious to justify the grant of permission to appeal and the appeal does not raise any issue of wider significance which might otherwise support the grant of permission. In the circumstances, the grant of an extension of time would have no utility. For these reasons, we decline to grant Mr Krnjic an extension of time in which to file his appeal application and, accordingly, as the application was not made in accordance with the relevant procedural rule as required by s 587 of the FW Act, it must be dismissed.

[28] We order that Mr Krnjic's application for permission to appeal is dismissed.

[29] We note the observation made by the Commissioner in the concluding paragraph of the Decision, which we have earlier quoted. We endorse that observation, and encourage Mr Krnjic and Bunnings to enter into a constructive dialogue concerning his return to work on an appropriate basis. If Mr Krnjic's return to work remains in dispute, either side may access the dispute resolution procedure in the enterprise agreement that applies to the Preston store. That procedure provides for mediation, conciliation and/or arbitration by the Commission if the matter cannot first be resolved at the workplace level.

[1] [2017] FWC 3688

[7] [2014] FWCFB 4822

[8] See Re SB [2014] FWC 2104; 244 IR 102 at [41]; Mac v Bank of Queensland Limited [2015] FWC 774; 247 IR 274 at [87]- [88]

[9] Transcript 29 March 2017, PN 20

[10] Transcript 29 March 2017, PNs 29-30

[11] Transcript 29 March 2017, PNs 236-237

[12] Transcript 29 March 2017, PNs 308-309

Printed by authority of the Commonwealth Government Printer