Fair Work Act 2009

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

Application for an FWC interim order to stop dismissal prior to bullying application - whether appropriate to make interim order - approach and statutory context considered - whether arguable case - balance of convenience - interim order not made.

[1] On 4 January 2018, Ms Victoria Leeman filed an application for stop bullying orders under s.789FC of the Fair Work Act 2009 (the Act). The application alleged that Ms Marie Ormiston, the Road User Safety Manager for her employer Roads and Maritime Services,[1] was engaging in bullying behaviour against her which included:

• Refusing her requests for flexible working arrangements

• Placing her on a sick leave review for allegedly taking excessive sick leave

• Subjecting her to micro-management

• Constant harassment

[2] The employer disputes the bullying allegations and states that they are the same allegations that were raised in a grievance made on 1 November 2017. An internal investigation undertaken by the employer did not substantiate the bullying allegations. The employer states that the applicant was being informally performance managed at the time and that the Road User Safety Manager was undertaking reasonable management action.

[3] The employer also submitted that it was a constitutionally covered business and that the Fair Work Commission (the Commission) was without jurisdiction to determine the application. A decision dismissing the jurisdictional objection was delivered by the Commission on 19 June 2018.[2] An appeal against the decision was dismissed on 18 September 2018.[3]

[4] On 20 February 2019, the applicant advised the Commission that her employer was intending to terminate her employment based on medical grounds and asked whether she needed to submit a new application for unfair dismissal.

[5] On 25 February 2019, the employer advised the Commission that the continuation of the applicant's employment was under review as she was unfit to return to work. Should her employment be terminated the Commission would be prevented from further dealing with the application.

[6] On 19 March 2019, the applicant advised the Commission that her employer intended to terminate her employment and attached a letter dated 15 March 2019 which stated that she had been deemed permanently unfit to undertake the inherent requirements of her substantive position as Road User Safety Officer Hunter and that it had been recommended that her employment be terminated in accordance with the employer's Fitness to Work Procedure. The correspondence advised that she had 21 days to provide in writing; any reasonable alternatives to termination on medical advice.

[7] The applicant's email asked the Commission whether it was possible to apply for an interim order to:

"stop termination while my anti-bullying matter is heard?"

[8] The applicant was provided with a Form F1 on the same day which was completed and filed with the omission on 20 March 2019. The application requested at 2.1:

"Issue an order to stop employment termination while my existing anti-bullying matter (AB2018/3) is heard."

[9] The grounds supporting the application at 2.2 of the applicant's F1 were put simply:

My employer (RMS) has confirmed that they now intend to terminate my employment as per letter attached.

The 'medical evidence' referred to in the letter is based on an assessment by Dr Ashwinder Anand, Psychiatrist for the Department, on 3 September 2018."

[10] The attached letter referred to by the applicant dated 15 March 2019 is signed by Anna Zycki Director, Hunter Region Roads & Maritime Services. The correspondence is in the following terms:

"I refer to our discussion held on 19 February 2019 in which you were advised that you have been deemed permanently unfit to undertake the inherent requirements of your substantive position of Road User Safety Officer Hunter.

On the basis of the medical evidence presented it has been recommended that your employment be terminated in accordance with the Work Fitness Procedure.

In accordance with the Procedure, you have twenty one (21) calendar days inclusive from the date of this meeting to consider the matter and provide, in writing; any reasonable alternatives to termination on medical advice. This period expires close of business 5 April 2019.[4]

All responses will be reviewed by Road and Maritime Services and you will be advised of the outcome of the review in writing as soon as is practicable.

If no response is received within the twenty one (21) day period, the process will continue and termination on medical advice will proceed.

You Are Encouraged to Seek the Support of your union or support person and to contact the Employee Assistance Program for free and confidential counselling, the contact number is 13000 xxx xxx (24 hours a day, seven days).

If you require any clarification of the information contained in this letter or the attached documentation please do not hesitate to contact me on 04xx xxx xxx."

[11] The employer was invited by the Commission to provide any response to the applicant's application by 25 March 2019. A response was provided which opposed the issuing of an interim order in the terms sought by the applicant.

[12] It was submitted that the applicant, who commenced her employment on or around the 4 October 2016 as a Road User Safety Officer, made a written complaint on 9 November 2017[5] regarding the alleged conduct of the then Road User Safety Manager Ms Ormiston. The complaint was dealt with by the Workplace Conduct & Investigations Unit (WCIU) of the employer.

[13] On 17 November 2017,[6] the applicant commenced leave on the ground of ill health and has not returned to work since. On 15 December 2017, the WCIU responded to the applicant's complaint stating that some allegations of fact asserted by the applicant were not made out on the evidence and that other certain actions by the Road User Safety Manager were considered to be reasonable management action.

[14] On 3 September 2018, the applicant attended an independent medical examination undertaken by consultant psychiatrist Dr Ashwinder Anand. A medical report was subsequently provided on 11 September 2018 which concluded that the applicant was unable to carry out the inherent requirements and demands of her role in the pre-injury employment and that this was likely to be a permanent restriction which would continue to apply even if the supervisor (Ms Ormiston) was not a factor.

[15] On 25 January 2019 Ms Ormiston, the subject of the bullying allegations, transferred to a new role as Manager Regional Operations (Hunter) in the Regional Operations Branch of the Regional & Freight Division. It is put that Ms Ormiston is no longer engaged as the Road User Safety Manager in the Road User Safety Branch of the Hunter Region Directorate and is no longer responsible for supervision of the applicant's position.

[16] It is submitted by the employer that the Commission should not issue the interim order on the basis of the conventional principles applied by courts for interim relief. Those being that the applicant must demonstrate that there is a serious issue to be tried or that the applicant has made out a prima facie case. Secondly, that the applicant will suffer prejudice without the interim order and finally that the balance of convenience favours the interim orders issuing.

[17] The application refers to s.589 of the Act which is in the following terms:

(1) The FWC may make decisions as to how, when and where a matter is to be dealt with.

(2) The FWC may make an interim decision in relation to a matter before it.

(3) The FWC may make a decision under this section:

(4) This section does not limit the FWC's power to make decisions."

[18] While not accepting that the applicant has been subject to any bullying conduct the employer acknowledges that taken at its highest, without there being any testing of the evidence, it could be accepted that the applicant had a prima facie case that she was subject to bullying.

[19] However, any bullying conduct could not have continued past November 2017 when the applicant left the workplace and that the applicant is not at risk of future bullying as Ms Ormiston is no longer occupying the role of the applicant's supervisor. Additionally, based on the existing medical evidence the applicant's date of return to work is unknown, if at all.

[20] The employer points out that the 15 March 2019 correspondence does not purport to terminate the applicant's employment but affords her with 21 days to provide a written response to any reasonable alternatives to termination on medical advice. A final decision to terminate her employment has not been taken by the employer.

[21] Finally, the employer submits that it would suffer substantial prejudice if the interim order was made as it would prevent the employer from considering whether or not it wished to have the applicant continue in employment.

[22] On 26 March 2019, the applicant forwarded a reply to the employer's submissions in which she disputed some dates and stated that her health had improved in the last 6 months. The applicant's response questioned whether the transfer of Ms Ormiston was a temporary arrangement, with the applicant stating that the bullying continued when Ms Ormiston was on secondment reporting to another manager and that the applicant's role had been filled by another employee since November 2017.

[23] On 28 March 2019, the applicant also forwarded an email to the Commission requesting that the report from Dr Anand be treated as private and confidential.[7]

[24] There are two prerequisites to the making of final orders in bullying applications, which are both stated at s.789FF(b) of the Act. The Commission must first find that the applicant has been bullied at work by an individual or a group of individuals; and secondly, that there is a risk that the applicant will continue to be bullied at work by the individual or group concerned.

[25] The power of the Commission to grant an order is limited to preventing an employee from being bullied at work. In this application the applicant names an individual as the alleged bully**.** Where there is no risk that the applicant will continue to be bullied at work by the individual an order to prevent the risk of future bullying cannot issue.

The principles to be applied to an interim decision

[26] I intend to adopt the common law principles that apply to interim relief applications. Collier J in United Motor Search Pty Ltd v Hanson Construction Materials Pty Ltd [8]referred to the application of three tests:

1. There must be a serious question to be tried as to the applicant's entitlement to relief; and

2. The applicant is likely to suffer injury for which damages will not be an adequate remedy; and

3. The balance of convenience favours the granting of an interlocutory order.

[27] Bromberg J in Quinn v Overland[9] referred to two main inquiries incorporating the test of whether damages would be an adequate remedy into the wider test of balance of convenience stating:

"[45] In determining an application for interlocutory relief, the Court addresses two main inquiries. First, whether the applicant has made out a prima facie case in the sense that if the evidence remains as it is, there is a probability that at the trial of the action the applicant will be held entitled to relief. Second, whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted: Australian Broadcasting Corp v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [65], [19].

[46] The requirement of a "prima facie case" does not mean that the applicant must show that it is more probable than not that the applicant will succeed at trial. It is sufficient that the applicant show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights the applicant asserts and the practical consequences likely to flow from the order the applicant seeks. In that context there is no objection to the use of the phrase "serious question" to convey the strength of the probability: Australian Broadcasting Corp v O'Neill per Gummow and Hayne JJ at [65]-[72], Gleeson CJ and Crennan J agreeing at [19]."

[28] As Gummow and Hayne JJ explained in Australian Broadcasting Corporation v O'Neill,[10] referred to by Bromberg J in Quinn v Overland above, in order for an applicant for interlocutory relief to demonstrate that there is a "serious question to be tried":

1.1 It is sufficient that the applicant show a sufficient likelihood of success to justify the preservation of the status quo pending the trial: at [65].

1.2 The applicant need not demonstrate more than a 50% chance of ultimate success: at [68].

1.3 In that light the issue may be understood as whether the applicant has made out a prima facie case for relief: at [65], [70].

1.4 Whether the applicant shows a sufficient likelihood of success depends on the:

1.4.1 nature of the rights asserted; and

1.4.2 practical consequences likely to flow from the interlocutory order sought. Particular considerations arise where the grant or refusal of an interlocutory injunction in effect would dispose of the action finally in favour of whichever party succeeded on that application: at [72].

[29] In the Full Court decision in Samsung Electronics Co Limited v Apple Inc,[11] the court said at [67]:

"As Sundberg J observed in Sigma Pharmaceuticals (Aust) Pty Ltd v Wyeth (2009) 81 IPR 339; [2009] FCA 595 at [15] (Sigma Pharmaceuticals), when considering whether to grant an interlocutory injunction, the issue of whether the plaintiff has made out a prima facie case and whether the balance of convenience and justice favours the grant of an injunction are related inquiries. The question of whether there is a serious question or a prima facie case should not be considered in isolation from the balance of convenience. The apparent strength of the parties' substantive cases will often be an important consideration to be weighed in the balance: Tidy Tea Ltd v Unilever Australia Ltd [1995] FCA 1439; (1995) 32 IPR 405 (Tidy Tea) at [416] per Burchett J; Aktiebolaget Hassle v Biochemie Australia Pty Ltd (2003) 57 IPR 1; [2003] FCA 496 at [31] per Sackville J; Hexal Australia Pty Ltd v Roche Therapeutics Inc (2005) 66 IPR 325; [2005] FCA 1218 at [18] per Stone J; and Castlemaine Tooheys at CLR 154; ALR 558 per Mason ACJ."

[30] A summary of the applicant's bullying allegations are set out above and while they are denied by the employer, on their face they raise allegations that Part 6-4B Workers Bullied at Work of the Act is designed to remedy. As such I am prepared to accept on their face that the allegations raise a serious question to be tried. However, as put by the employer there is a limited likelihood of success to justify the order being granted pending finalisation of the application. This is because Ms Ormiston has been transferred and would no longer be the applicant's supervisor should the applicant return to work.

[31] The applicant has questioned whether the transfer is a temporary arrangement. The employer's submissions indicated that the applicant's line of supervision no longer includes Ms Ormiston; I do not take it that it is a temporary arrangement.

[32] The legislation requires the possibility of a risk of future bullying at work by the named individual Ms Ormiston. On the submissions of the employer this risk is now removed even if the applicant returns to work at some time in the future.

[33] Considering what has been put before the Commission in regard to the new role now performed by Ms Ormiston, even if the allegations of bullying said to have occurred prior to November 2017 are made out, there no longer appears to be a risk that the applicant will continue to be bullied by Ms Ormiston. On this basis there does not exist a sufficient likelihood of success in the applicant's substantive application for an interim order to issue.

[34] The applicant has been advised by the employer that on the basis of medical evidence it has been recommended that her employment be terminated in accordance with their Work Fitness Procedure. As a result, the applicant has been asked by the employer to provide a response by 5 April 2019 as to any reasonable alternatives to termination on medical advice.

[35] Noting that the employer is relying upon a medical opinion dated 11 September 2018 and that the applicant in her email response to the Commission of 26 March 2019 states her health has improved in the last 6 months; the outcome of the employer's consideration of the applicant's response is unknown. Should the termination of the applicant's employment proceed, other legal remedies may exist including 'unfair dismissal' for the applicant to pursue, as the applicant and the respondent both acknowledge. As the employer states in their submissions of 25 March 2019, it cannot be assumed that the applicant's employment will be terminated.

[36] The employer submits that it will be substantially prejudiced if the interim order was granted. This is because it would prevent the employer from considering on medical advice whether or not the applicant should remain employed where she has not attended for work since November 2017. Further, if the employer is successful at any future bullying hearing it would not be able to recover any damages it may incur as a result of any interim order issuing.

[37] Consideration of the applicant's prima facie case and the balance of convenience must be assessed having regard to the nature of the bullying application. The purpose of the interim order application by Ms Leeman is to preserve the right to advance her bullying application by preventing her termination of employment.

[38] The issuing of an interim order needs to be considered against the lawful rights of an employer becoming subservient to a bullying application where such applications are made in an attempt to prevent, circumvent or frustrate an employer's rights. For example, an employer may wish to conduct and complete a performance review, take disciplinary action or terminate an employee's employment contract.

[39] There will of course be cases where the nature of a bullying allegation relates directly to other action proposed to be taken by an employer and the veracity of the bullying allegation and any future risk of bullying should be determined prior to other employer action being taken.

[40] In this case I am not satisfied that the balance of convenience favours an order being issued in the terms sought by the applicant. The applicant's response to the employer's correspondence of 15 March 2019 may elicit further enquiries by the employer being undertaken or reveal that Ms Leeman is medically fit to return to work due to the circumstances that initiated the internal work complaint and her subsequent complaint in the Commission having changed since November 2017.

[41] For the above reasons the application is dismissed.

[1] The employer in its response F73 names itself as the Secretary for the Department of Transport

[2] [2018] FWC 3584

[3] [2018] FWCFB 5772

[4] 5 April 2019 is 21 days from the date of the correspondence

[5] The applicant states the correct date was 1 November 2017

[6] The applicant states the correct date was 6 November 2017

[7] The details of the report are not referred to in this decision

[8] [2013] FCA 1104 at [32]

[9] [2010] FCA 799 at [45] - [46]

[10] [2006] HCA 46; 227 CLR 57

[11] [2011] FCAFC 156 at [67]

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