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

Application for an FWC order to stop bullying - application dismissed

• [1] On 28 February 2025, Ms Jasminder Kaur (the Applicant or Ms Kaur) lodged an application for an order to stop bullying pursuant to s.789FC of the Fair Work Act 2009 (the Act) against her employer, Clare Country Club (the Respondent or the Employer) and Ms Sherri Haynes (the Person Named or Ms Haynes).

• [2] The matter was allocated to my Chambers on 25 March 2025.

• [3] On 31 March 2025 and 8 April 2025, the parties participated in Conferences with a view to conciliate. The matter was unable to be resolved on both occasions.

• [4] On 23 April 2025, my Chambers issued a Notice of Listing to the parties advising a Hearing was listed and provided Directions for the filing of material.

• [5] The Applicant filed submissions, a witness statement from herself and Mr Jai Wadha. The Respondent filed submissions, supporting documents and witness statements from Ms Sharni King and Ms Andrea Kilgour. Ms Haynes also filed a statement.

• [6] The material filed was collated into a Digital Court Book (DCB) and sent to the parties on 9 May 2025. The DCB was accepted into evidence with the exclusion of statements from Mr Connor Berry, Mr Leo May and Mr Alex Saddington who were not in attendance at the Hearing. Various additional documents were tendered at the Hearing and received with appropriate weight based on relevance and admissibility.

• [7] The Hearing was conducted in person, in Adelaide at 10:00am (SA) Wednesday, 14 May 2025. The Applicant represented herself, the Respondent was represented by Mr Gary Cappola (Australian Hotels Association). The Hearing was conducted in the form of a Determinative Conference.

• [8] The Applicant's case was that there were 5 incidents over a period between 3 May 2024 and 19 February 2025 which demonstrated that she had been 'bullied at work[1] by Ms Haynes and/or the Clare Country Club. The Clare Country Club and Ms Haynes denied that allegation.

• [9] I propose to review each incident in chronological order however before doing so, I should record my observation of the two main witnesses, the Applicant, Ms Kaur (Commis Chef) and the Person Named, Ms Haynes (Head Chef). I have had the opportunity to observe the manner in which they gave their evidence and have also considered that the fact they were nervous and appeared unfamiliar giving evidence in a Courtroom environment.

• [10] Mr Kaur was an unconvincing witness, at various times during the course of her giving evidence, I found her evidence to be evasive, or pedantic or inconsistent. Ms Kaur did not make any concessions on factual matters and was resolute that she did not contribute to the less than optimal relationship she appears to have had with Ms Haynes. Ms Haynes was equally unconvincing. At first, Ms Haynes had no memory of any of the events other than that recorded in her statement. I formed the view that Ms Haynes was a reluctant witness who did not want to be involved in the proceeding. After some questioning Ms Haynes' memory improved significantly. She also accepted that her demeanour towards Ms Kaur may have been less benign than suggested by her statement.

• [11] I am reluctant to trust the evidence of either of the main witnesses unless corroborated. I suspect that the truth lies somewhere between the two opposing accounts given.

• [12] Ms Haynes was the Head Chef and was senior to Ms Kaur. Ms Kaur appeared to hold strong views about how the kitchen should be run. Ms Haynes' directions at time were inconsistent with Ms Kaurs' views. I suspect this dynamic contributed to the friction between the two parties.

• [13] The Management of the Clare Country Club changed in August 2024.

• [14] The first incident occurred on 3 May 2024. In relation to this incident, I find that Ms Haynes had directed Ms Kaur to prepare some desserts. Ms Kaur held the view that there were enough of the desserts already prepared and that no further desserts were required. A discussion/debate about the request took place. The discussion concluded with Ms Haynes directing Ms Kaur to do as she was instructed. In the circumstances, viewed objectively, I do not consider Ms Haynes conduct was unreasonable and to the extent it was critical of Ms Kaur, it was reasonable management action.

• [15] The second incident occurred on 4 May 2024. Whilst Ms Kaur was engaged on a salaried arrangement, she was required to work a minimum of 38 hours per week. At the commencement of her shift Ms Kaur was asked by Ms Haynes if she would be completing her minimum hours for the week. Ms Kaur responded in the affirmative. Ms Haynes is then alleged to have 'responded with disproportionate anger' and promptly left the kitchen without further communication. An hour and a half later Ms Haynes advised Ms Kaur that she would not be participating in [dinner] service today. Despite this, Ms Haynes retuned to the kitchen and provided some assistance. I accept that the discussion may not have been civil, however I am not persuaded that Ms Haynes responded with anger.

• [16] On 6 May 2024, Ms Kaur lodged a complaint by email. Ms Kaur conceded in the email that disagreements are inevitable in any workplace but contended that Ms Haynes' interaction with her was unacceptable. Ms Kaur suggested there was a reluctance to accept differing opinions, collaborate and that there was a disregard for her input in decision making processes.

• [17] The third incident occurred on 9 May 2024 where at about 3:55pm a discussion was had about the timing of breaks on that shift. Ms Haynes asked Ms Kaur if she would be in a position to take her break at 4:00pm. Ms Kaur suggested in response that Ms Haynes take her break at 4:00pm. A robust discussion appears to have been had about who was making the decisions about when breaks are taken. Ms Haynes is accused of telling Ms Kaur to 'shut up' repeatedly and banging the kitchen bench. Ms Haynes concedes she made have loudly placed a tray on the kitchen bench. Ms Kaur sent a further email to the Respondent on 9 May 2024 concerning the third incident.

• [18] Ms Kilgour (People and Compliance Manager) was tasked with investigating Ms Kaur's complaints. A meeting with Ms Kaur was conducted on 10 May 2024 and Ms Kilgour reviewed CCTV footage of the 9 May 2024 incident. On 13 May 2024, Ms Kilgour discussed the matter with Ms Haynes. On 16 May 2024, a meeting was conducted with Ms Kaur, Ms Haynes and Mr Steve Brown (General Manager) and Ms Kilgour. The meeting resolved the differing communication styles that was a factor, and the Respondent issued a written communication regarding effective communication. This document was not provided to the Commission. It would appear that this meeting satisfactorily resolved the dispute between Ms Kaur and Ms Haynes as no further complaints were made until 20 January 2025.

• [19] The fourth incident occurred in late November 2024 whereby Ms Kaur advised the Respondent that her work visa would expire on 1 December 2024. Ms Kaur had been offered the opportunity to apply for permanent residency. There concerns on both sides as to how long it would take for the visa to be renewed and what would happen if there was a delay. Ms Haynes (after consulting with Mr Brown) suggested Annual Leave could be taken. Ms Kaur offered to resign. Ms Haynes removed Ms Kaur from the roster for the following week.

• [20] The same approach was not taken with regard to Ms Kaur's partner (Mr Wadha) who also worked for the Respondent and had the same visa expiry date. Ms Kaur complained about the inconsistent approach. As it turned out, Ms Kaur was reinstated on the roster a few hours after the complaint was made (having obtained a bridging visa). Ms Kaur also complained that Ms Haynes was not working at the same time as her. No formal complaint was lodged at the time.

• [21] I am not persuaded that viewed objectively the Visa incident is unreasonable behaviour albeit somewhat confusing that the same approach was not taken with respect to the Applicant's partner. The Respondent is obligated to ensure its employees are entitled to work and I have taken into account that the issue was resolved within a matter of hours by the General Manager.

• [22] The fifth incident occurred on 19 February 2025. Ms Kaur had been absent from the workplace on annual leave. Immediately prior to her return, the kitchen had had a deep clean to deal with a pest infestation and an electrical plug on the oven had been repaired. This necessitated the disconnection of the gas and electricity to the kitchen and a cleaning substance had been sprayed on the oven. Ms Haynes had left a note to Ms Kaur informing her of the need to wash the sprayed surfaces with hot soapy water before use but did not inform her of the disconnection of the gas/electricity. This required Ms Kaur to turn a few gas taps on and plug the oven in prior to use. This delayed the breakfast service by 5 minutes. No criticism of Ms Kaur was raised. Ms Kaur describes this incident as 'Sabotage of kitchen equipment, targeted behaviour and workplace retaliation.' Ms Haynes had left Ms Kaur a note (the precises details of which were in dispute as there were 2 versions of the note which had the same effect) about the need to clean the oven and kitchen but omitted to raise the disconnection of the gas or electricity. Ms Kaur's complaint concerning the 19 February 2025 incident was investigated by Ms King (Vice President of Operations, People and Stakeholder Relations), the allegations were dismissed.

• [23] There was no evidence that the actions were targeted at Ms Kaur. I am satisfied that the deep clean was performed for a genuine operational reason. Viewed objectively, the fifth incident is not unreasonable behaviour by the Respondent or Person Named.

• [24] The Applicant has been absent from work since 20 February 2025 and has not yet returned. The Applicant provided a Work Capacity Certificate of Dr Ted Owen (dated 13 March 2025) which suggests the Applicant is medially unfit to undertake suitable duties from 20 February 2025 - 20 May 2025. The Certificate suggests that based on an examination of the Applicant and other information (unknown), the Applicant has a clinical diagnosis of 'adjustment disorder' and 'depressed mood.' I am aware there is a Workers Compensation matter on foot.

• [25] The Applicant contends the alleged bullying and harassment has had a psychological impact, namely emotional distress and anxiety which has resulted in her being unable to return or perform work safely.

• [26] The relevant provisions of the Act are 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.

(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.

(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

• [27] Viewed objectively, the events that I have found to have occurred do not support a finding that that the Applicant has been 'bullied at work' as defined in s.789FD of the Act. In reaching this conclusion I have taken into account the resolution reached between the parties on 16 May 2024 (as to the first, second and third incident) and the complaint free period between 9 May 2024 and late November 2024. I have also considered that the interaction complained of in November 2024 (the fourth incident) was based on an apprehension that the Applicant may not have been eligible to work. In my view, the concerns expressed about the state of the kitchen in February 2025 (the fifth incident) do not provide any foundation for a complaint.

• [28] Having not been satisfied that the Applicant has been bullied at work, the Application is dismissed.

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