Fair Work Act 2009

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

[1] On 10 September 2014 Ms Lisa Fsadni (the Applicant) lodged an application for an order to stop bullying pursuant to s.789FC of the Fair Work Act 2009 (the Act).

[2] The employer is G8 Education Pty Ltd, the operator of the "First Grammar Early Education Centre" (the Employer) in Toongabbie in Western Sydney. The Applicant is a Group Leader in the Centre.

[3] The persons against whom bullying was alleged were Ms Sonal Shah, the Centre manager and Ms Vanessa Hextall, a member of the management of the Employer.

[4] The Applicant complained of continuous bullying which commenced in 2013. She further alleged that this conduct had a significant effect on her health and welfare.

• Belittling in front of parents and staff
• Warnings without justification
• Lack of communication from management
• Harassment with respect to absences and lack of punctuality.

[6] The Employer responded that it had engaged in reasonable management action in a reasonable manner with respect to the Applicant, including by:

• Fully investigating a grievance lodged by the Applicant against Ms Shah in November 2013
• Issuing the Applicant two written warnings for failing to maintain the portfolios of the children in her care
• Offering mediation which was refused by the Applicant in November 2014
• Issuing the Applicant with a third and final warning for failing to maintain the portfolios of the children in August 2014
• Providing the Applicant with a number of opportunities to explain and justify her allegations.

[7] The matter was dealt with in conference on 22 October 2014. The Applicant was represented by herself together with a support person. The employer was represented by its then HR advisor, David Stonier. Ms Shah and Ms Hextall participated also. They did not lodge separate documentation.

[8] I issued the following statement on 23 October 2014:

1. This application was dealt with in conference at the Fair Work Commission (the Commission) on 22 October 2014.

2. It was agreed that an independent mediation will take place prior to the Applicant commencing maternity leave in December 2014.

3. The Employer will consult with the Applicant as to the mediator to be chosen. The Commission will be advised of progress.

4. A copy of the mediator's report will be provided to the Applicant and the Commission.

5. The matter will be relisted for report back, conference and/or directions for filing on the application of the Applicant.

[9] A copy of the mediator's report was provided to the Commission on 13 February 2015. The issues had obviously not been resolved. The Applicant was on maternity leave, however and not in the workplace until December 2015.

[10] On 14 May 2015, the Employer advised the Commission that Ms Shah had been transferred to another centre. It therefore believed that the matter had been effectively resolved.

[11] A telephone programming conference was scheduled for 30 July 2015. This was cancelled at the request of the Applicant. It took place on 14 August 2015. In brief, the Applicant insisted on the matter proceeding to hearing.

[12] Accordingly, it was set down for hearing on 3 December 2015, with Directions for submissions and evidence issued.

[13] The hearing was conducted with a video-link to Brisbane. Mr David Tuxworth of Livingstones represented the Employer. He was granted permission to appear. The Applicant did not appear and could not be contacted on the day.

[14] My chambers wrote to the Applicant on 11 December giving her an opportunity to make a written submission. She responded on 11 December saying that she still did not agree to withdraw the matter.

[15] The relevant aspects of the anti-bullying legislation are:

(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.

(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:

(iv) a body corporate incorporated in a Territory; or

(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;

then the business or undertaking is a constitutionally-covered business."

"789FF FWC may make orders to stop bullying

(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.

(2) In considering the terms of an order, the FWC must take into account:

(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body - those outcomes; and

(b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes - that procedure; and

(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes - those outcomes; and

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(c) the application has no reasonable prospects of success.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

[17] The employer's primary position, throughout the course of this matter, was that it had undertaken "reasonable management action carried out in a reasonable manner". Therefore, s.789FD(2) would mean that s.789FD(1) does not apply. In other words, the Applicant had not been bullied at work.

[18] Considerable material in support of this position was advanced by the employer. However, given the circumstances, it is not necessary for me to reach that conclusion.

[19] By the time of the hearing, both Ms Shah and Ms Hextall had resigned from the Employer. The Employer therefore applied to have the matter dismissed on the basis that the application has no reasonable prospects of success.

[20] Section 789FF(1)(b)(ii) makes it clear that the Commission can only make an order to prevent the worker from being bullied at work by the individual or group if there is a risk that the worker will continue to be bullied at work. Because of the resignations of Ms Shah and Ms Hextall, I am satisfied that there is no such risk. There is no implication as to what occurred in the past in reaching this conclusion

[21] The Commission has now exercised its discretion on a number of occasions to dismiss an application for a stop bullying order where there is no risk of continued bullying. Often this has been where the applicant is no longer employed by the employer (see: Gostencnik DP in Mitchell Shaw v ANZ Bank; Bianca Haines [2014] FWC 3408; James Willis v Capital Radiology Pty Ltd T/A Capital Radiology etc. [2016] FWC 716; the full bench in Garth Atkinson v Killarney Properties etc. [2015] FWCFB 6503, and Johns C in MT [2014] FWC 3852.

[22] In this case, the persons accused of bullying are no longer employed by the employer. There is no suggestion or evidence that there is or could be any other source of bullying of the Applicant.

[23] Mr Jake Lees, the new Toongabbie Centre Manager gave evidence of the measures taken by the Employer to ensure that it is better situated to deal with matters such as have arisen in this case. He stated:

"[PN72] Can you please advise the Commission of any recent staff training that has occurred within the last 12 months at your centre?---In the last 12 months we have implemented an harassment and bullying policy revision, mandatory acknowledgements from all staff and educators, an information and communication systems policy revision and mandatory sign off. We've also rolled out a refresher training that was held on 27 August 2015, which was strategies for a bullying and harassment free workplace and then again 10 September 2015, with "Are you okay?", and anti-bullying and harassment free workplace strategic methods.

[PN73] So 'Are you okay' day, I understand that relates to checking up on colleagues who may be suffering from depression or something like that. Is that your understanding?---Yes, it's additional following up on any coincidental evidence that an employee may be upset or in a depressive state.

[PN74] Finally, can you please advise the Commission of the date or approximately when Ms Fsadni returned to work?---It was the week after 3 November. Originally she was supposed to begin work on 3 November, but the first week was - she was ill and wasn't able to attend the workplace, and the following week that was her official start date.

[PN75] Have there been any sort of issues or altercations with Ms Fsadni or between her and yourself or any other employees, to your knowledge?---No, no altercations or any changes between us or herself and any other educators related to the service."

[24] In summary, I find that there is no risk that the Applicant will continue to be bullied at work. The matter has no reasonable prospects of success and must be dismissed for want of jurisdiction to make an order under s.789FF.

[25] Pursuant to s.587(b) of the Act, the application is dismissed and I so order.

D. Tuxworth, solicitor, with B. Robson and J. Lees for G8 Education Pty Ltd.

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