Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against order [PR703410] of Commissioner Johns at Melbourne on 20 December 2018 in matter number AB2018/567.

[1] The South Eastern Sydney Local Health District (District) has lodged an appeal, for which permission to appeal is required, against a decision made by Commissioner Johns on 20 December 2018 to issue interim anti-bullying orders[1] (Orders) on the application of Ms Kusum Lal, an employee of the District. The Order, which was said by the Commissioner to have been made pursuant to ss 595, 589 and 789FF of the Fair Work Act 2009 (FW Act), contained the following substantive provisions:

"[1] On and from 21 December 2018, the South Eastern Sydney Local Health District (District) must appoint Mrs Kusum Lal to the position of Administration Officer Level 5 - Ambulatory Care Unit and Outpatients Department - St George Hospital (Position) on a temporary basis;

[2] If the Position ceases to be available for Mrs Lal to perform duties in, the District must:

(a) provide Mrs Lal administrative duties on a supernumerary basis other than in the Collections Office; and

(b) pay Mrs Lal at her substantive rate of pay, being as an Administration Officer - Level 5, 2nd year, in accordance with the Health Employees Administrative Staff (State) Award 2018;

[3] Between 23 December 2018 and 6 January 2019 Mrs Lal must comply with any directive of the District to take annual leave during the "low activity period" (other than in respect of Public Holidays or union picnic days).

[4] This order takes effect immediately and shall remain in force until further order of the Commission."

[2] The District contends that the Commissioner exceeded his powers under the FW Act in making the Order.

[3] The circumstances which led to the making of the Order may briefly be described. Ms Lal is employed by the District in its Billing Service Centre at the Prince of Wales Hospital, which is operated by the District. Ms Lal alleges that from about 2016 she experienced bullying and harassment by certain managers and supervisors in her work area. The conduct which constituted this bullying and harassment was said to include singling out and unduly close monitoring by management, the allocation of an unreasonably excessive and inequitable workload, unfair comparisons with work colleagues, and ostracism. Ms Lal went off work from June 2018 due to a medical condition which she alleges was caused by the workplace bullying. Ms Lal made a formal written complaint about this to the Chief Executive Officer of the District on 26 July 2018. The District rejected the complaint in a letter dated 20 August 2018, which in summary contended that the matters raised by Ms Lal constituted reasonable management actions taken in order to improve efficiency in the Billing Service Centre and to manage her performance.

[4] On 10 September 2018 Ms Lal made an application to the Commission for an order to stop bullying pursuant to s 789FC of the FW Act. The response to the application filed by the District on 28 September 2018 denied the allegations of bullying made in Ms Lal's application. The District also made a jurisdictional objection to the application, namely that the anti-bullying provisions of the FW Act did not apply to it because it was not a "constitutionally-covered business", but this was withdrawn fairly shortly afterwards. The Commissioner conducted conferences in relation to the matter on 1, 14 and 23 November and 5 and 19 December 2018, but these did not result in any agreed resolution to Ms Lal's application. At the last of these conferences Ms Lal foreshadowed making an application for interim orders. The Commissioner made directions for the purpose of hearing this application the following day, 20 December 2018, which included a direction for Mr Lal to file a document setting out the terms of the interim order which she sought to be made.

[5] At the hearing before the Commissioner on 20 December 2018, Ms Lal contended that she was fit to return to work, but not at the Billing Service Centre where she faced a risk of continued bullying, and sought an interim order that she be placed in the alternative position of Administration Officer Level 5 - Ambulatory Care Unit and Outpatients Department at St George Hospital, another hospital operated by the District. There was no dispute that this position was vacant at the time and being advertised. Once that position was permanently filled, Ms Lal sought to be assigned supernumerary duties until the determination of her anti-bullying application. Ms Lal made a witness statement in support of her position which was received into evidence.

[6] The submission made by the District against the making of the interim orders was, in its entirety, as follows:

"We do object to the order on the basis that we are going through a low activity period over the next two weeks, and basically anyone who's not frontline staff has been ordered by the Ministry of Health or sorry, has been directed by the Ministry of Health more actually to be working. That would mean that if were to place Ms Lal into a position say tomorrow, any new position that we put her into and obviously needs to be trained in that position because not all admin positions are equal. They all have - I mean they have the admin component but there would obviously be and certainly in Ambulatory Care and the Outpatients Department, there'd probably be quite a few things that Ms Lal would learn. I'm not - would need to learn, and I'm not saying that she couldn't but what I'm saying is we have skeleton staff, so during this period it would be very difficult to integrate her into one of those roles even on a temporary basis.

I note that she does have significant annual and long service leave balances, and I mean if she would like to apply for any of those vacancies as, you know, to actually permanently work in those roles, obviously we'd encourage her to do that and we can assist her with her application. I think we would have more opportunities post 7 January when Ms Lal returns from leave, because then we would have people - most of the people would be back at work. Not everyone but there'd be enough people that if she were to be temporarily acting in any of those roles, there would be someone that would be able train her up and supervisor her. I also note that there is work in Medical Records which will commence on 20 Jan as well. So we're starting to already get some opportunities in the new year."[2]

[7] The District did not adduce any evidence. Prior to making his decision, the Commissioner sought and obtained an assurance from the representative for the District that she had sought and was acting upon instructions from the District's senior management in relation to Ms Lal's application for interim orders.[3]

[8] The Commissioner delivered his reasons for issuing the Order ex tempore at the conclusion of the hearing on 20 December 2018. The Commissioner began by setting out the principles which he intended to apply in the determination of Ms Lal's application, and said:

"Section 589 of the Fair Work Act provides that the Commission may make procedural and interim decisions. I do not propose to read that section. However, the principles relevant to the making of an interim order are well established. In summary, the Commission must determine if there is a serious issue to be tried and where the balance of convenience lies having regard to the nature of the substantive application, the jurisdictional context in which the application is being considered and the circumstances of the parties."[4]

[9] The Commissioner then applied these principles by firstly finding that Ms Lal's anti-bullying application gave rise to a serious question to be tried as follows:

"In the present matter I have had an opportunity to consider the materials which have been filed in the application for an order to stop bullying in the form F72 and note in particular KL1 to the application, which is a letter dated 26 July 2018 from the applicant to the then chief executive officer of the District. The applicant in that correspondence outlines various grievances, at least going back to May 2018 and in particular identifies issues relating to grievances made about her, KPI targets, spreadsheet training, daily duties, debt collection list and KPI meetings.

At the interim injunction stage, it is not possible no[r] ...appropriate for the Commission to make findings of facts in relation to those matters. However, I note that if the evidence put forward by the applicant is substantiated at the substantive hearing, then it seems possible that the applicant will be able to establish that she has been the victim of bullying behaviours.

Having considered the materials filed to date and further the witness statement of the applicant, exhibit A2 filed today, I am therefore satisfied that if the evidence remains as it is, there is an arguable case with some reasonable prospect of success, that the named individuals have engaged in bullying behaviours towards the applicant, and that consequently there is a continuing risk to her health and safety issues required to work in that unit. In those circumstances, there is a reasonable prospect that orders aimed at preventing bullying from occurring may be made. For these reasons, I am satisfied there is a serious question to be tried."[5]

[10] The Commissioner then turned to the question of the balance of convenience, and after referring to the parties' respective submissions, said:

"Having considered those submissions, it seems to me that the inconvenience or injury to the applicant from refusing the interim orders outweighs the injury the respondent would suffer if such an order is granted. That is to say, the injury to the respondent is merely requiring it to engage the applicant to do productive work for which it pays tomorrow and from 7 January 2019, in circumstances where it is an organisation with a significant budget.

On the contrary, the inconvenience or injury that the applicant would suffer if the interim orders were not granted is that she would be required to reduce her annual leave balances in circumstances where she has an arguable case in relation to her substantive application for anti-bullying orders. In those circumstances I am satisfied that the balance of convenience weighs in favour of granting interim orders."[6]

[11] Ms Lal's substantive application is listed for hearing before the Commissioner on 30 April and 1 May 2019.

[12] The District's appeal grounds were, in substance, as follows:

(1) The Order was made beyond the scope of the power conferred by s 789FF of the FW Act because it was not directed to stopping bullying behaviour.

(2) The Order gave rise to a pecuniary penalty contrary to s 789FF(1).

(3) The Order impermissibly amounted to a reinstatement.

(4) The Commissioner failed to consider the suitability of Ms Lal for the position of Administration Officer Level 5 - Ambulatory Care Unit and Outpatients Department - St George Hospital and the impact on the District.

[13] The District submitted that:

• the purpose of orders made under section 789FF must be directed at preventing future bullying behaviour and resolving the bullying behaviour so that normal working relationships can resume;

• an order that compels the movement of a victim of alleged bullying behaviour to another role is inconsistent with the scope of section 789FF since it does not provide recourse to a solution that addresses the alleged bullying behaviour in a sustainable manner;

• the purpose of section 789FF is to fix the bullying behaviour, even on an interim basis, not to move the victim away from the source of the problem without addressing the root cause of the issue;

• orders responsive to the conduct of the alleged perpetrators of bullying conduct would be within jurisdiction, but the Order made by the Commissioner did not serve this purpose;

• the Order had the effect of putting Ms Lal in a job in relation to which the District was required to make a payment consisting of or given or exacted in money to the employee as a result of the Order, contrary to the terms of s 789FF(1);

• this was particularly the case given that the District would not have chosen to place Ms Lal in the position the subject of the Order and would not therefore have incurred the payment of a pecuniary amount to Ms Lal in relation to that position;

• the Order also effectively appointed Ms Lal to another position on terms and conditions no less favourable to those on which she was previously employed, and was therefore an order for reinstatement, which was outside the scope of the Commission's powers under section 789FF; and

• alternatively, if the Order was within power, the Commissioner erred in the exercise of his discretion in that he failed to consider Ms Lal's appropriateness for the position at St George Hospital, including whether she had the skill set for the position, the extent that her skills would meet a substantial proportion of the duties required, and consequently the extent to which training would be required.

[14] The District submitted that permission to appeal should be granted because the appeal raised issues of importance and general application that have not previously been considered by a Full Bench, including:

(a) the ability of the Commission to order the appointment of an employee to another position;

(b) what can amount to "payment of a pecuniary amount" under section 789FF;

(c) whether directing a form of ongoing employment in a different role amounts to "payment of a pecuniary amount" or is otherwise permitted under section 789FF; and

(d) whether orders made under section 789FF are limited to stopping behaviour of other individuals towards the applicant.

[15] Ms Lal submitted that an order which had the purpose of minimising contact between an applicant in an anti-bullying matter and the employees who were said to be engaging in bullying behaviour was clearly one which served the statutory purpose of s 789FF and was within power. Ms Lal further submitted that an order which, as here, provided for the proper remuneration to be paid for work performed was not an order requiring payment of a pecuniary amount, since the exclusion in s 789FF(1) did not go so far as to exclude any order which had a pecuniary consequence. The Order could not be characterised as one for reinstatement because, it was submitted, Ms Lal had not been dismissed. In relation to the matters that were said by the District not to have been considered by the Commissioner in the exercise of his discretion, Ms Lal submitted that these matters had not been the subject of any submissions at first instance, and the Commissioner was not required to take into account matters which had not been raised.

[16] The power to make anti-bullying orders is contained in s 789FF, which provides:

(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

[17] Section 589(2) empowers the Commission generally to "make an interim decision in relation to a matter before it". Section 595(3) provides that the Commission may deal with a dispute by arbitration, including by making any orders it considers appropriate, only if the Commission is expressly authorised to do so under or in accordance with another provision of the FW Act.

[18] We do not consider that this is a matter in which permission to appeal must be granted in the public interest or should be granted on discretionary grounds, for four reasons.

[19] Firstly, this is an appeal against a decision that is interlocutory in nature only. The Commissioner took the approach that he had the power to make an interim anti-bullying order under ss 589, 595 and 789FF if he was satisfied that the application before him gave rise to a serious question to be tried and the balance of convenience favoured the making of an interim order. The District accepted in its appeal that this was the appropriate test to be applied to any application for an interim anti-bullying order, so the question of whether the conditions in s 789FF(1)(b) required satisfaction prior to the making of any such order do not arise for consideration in this appeal. The District did not challenge the Commissioner's conclusion that there was a serious question to be tried, nor did it challenge the conclusion that if interim relief was not granted Ms Lal would be required to exhaust her annual leave balances in order to prevent any risk of exposure to the anti-bullying behaviour, the subject of her application prior to the hearing and determination of that application. There was no suggestion that the continuance of the interim order for the relatively short period until the application will be heard and determined to finality will cause the District any irreparable, significant or even identifiable damage or injury. Accordingly, the appeal lacks practical utility.

[20] Secondly, having regard to the fact that the District's appeal only challenged the particular form of interim relief granted by the Commissioner and not the more general proposition that the circumstances of the case required some form of interim arrangement to be put in place prior to the final hearing and determination of the matter, we place weight on the fact that neither at first instance, nor in the appeal did the District propose any alternative regime of interim orders that would appropriately protect the respective interests of the parties.

[21] Thirdly, we consider that the jurisdictional issues raised by the District in grounds 1-3 of its notice of appeal (which were not raised at first instance despite the fact that the Order made by the Commissioner was substantially in the same terms as that sought in Ms Lal's application for interim relief) lack sufficient merit to justify the grant of permission to appeal. The wide scope of the power to make anti-bullying orders under s 789FF was described by the Full Bench in Churches and Ors v Jackson & Woods[7] in the following terms:

"[32] We have set out the terms of s.789FF above. In our view, the Commission is given wide powers to make preventative orders it considers appropriate. These powers must be informed by, but not necessarily limited to, the prior unreasonable conduct as found. However, any orders must be directed towards the prevention of the worker being bullied at work in the future by the individual or group concerned, be based upon appropriate findings, and have regard to the considerations established by s.789FF(2) of the FW Act."

[22] Similarly in Re McInnes[8] the Full Bench said:

"[9] Importantly, a s.789FF order operates prospectively and is directed at preventing the worker being bullied at work. The Commission is specifically precluded from making an order requiring the payment of a pecuniary amount, hence it cannot make an order requiring a respondent to pay an amount of compensation to an applicant. The legislative scheme is not directed at punishing past bullying behaviour or compensating the victims of such behaviour. It is directed at stopping future bullying behaviour."

[23] In short, it is well-established as well as unambiguously clear from the text of the provision that s 789FF(1), where applicable, confers on the Commission a wide discretion to make such orders as it consider appropriate to serve the purpose of preventing an employee being bullied at work by the person or persons the subject of an anti-bullying application. The only jurisdictional limitation expressly stated in the terms of the provision is that an anti-bullying order must not require the payment of a pecuniary amount.

[24] It is apparent from the Commissioner's reasons for decision that the Order was intended to serve the purpose of preventing Ms Lal being bullied by the persons in the Billing Service Centre the subject of her application, and objectively it is apparent that the Order would in fact serve that purpose in that it would, on an interim basis, eliminate or at least minimise any contact between Ms Lal and those persons. That is sufficient to bring the Order within jurisdiction. That there might have been other ways to achieve that objective is beside the point. Physical and/or functional separation in the workplace of a complainant of bullying and those said to have engaged in bullying conduct is self-evidently one way of preventing future bullying, albeit that it may be a last resort where other practical measures will not be effective. A requirement that the employer place the complainant in an alternative position (or, alternatively, that an individual found to have engaged in bullying conduct be redeployed elsewhere) in order to achieve such separation may, we consider, be a legitimate incident of an order of this nature.

[25] The District failed to identify anything in the text of the provision, or the statutory context, which established any relevant limitation in the s 789FF(1) power which placed the Order beyond jurisdiction. The District instead placed heavy reliance on the following passages from the Explanatory Memorandum for the Fair Work Bill 2013:

"[120] The power of the FWC to grant an order is limited to preventing the worker from being bullied at work, and the focus is on resolving the matter and enabling a normal working relationships to resume. The FWC cannot order reinstatement or the payment of compensation or a pecuniary amount.

[121] Examples of the orders that the FWC may make include an order requiring: the individual or group of individuals to stop the specified behaviour; regular monitoring of behaviours by an employer; compliance with an employer's workplace bullying policy; the provision of information and additional support and training to workers; review of the employer's workplace bullying policy."

[26] The above passages cannot of course be treated as a substitute for the text of the FW Act, but in any event we do not consider that there is anything in those passages which supports the jurisdictional limitation posited by the District. That the "focus is on resolving the matter and enabling a normal working relationships to resume" merely confirms that the provision is preventative in nature rather than punitive or compensatory, and there is no reason to doubt that a separation order is one way to resolve an anti-bullying application and to allow employment relationships to resume in a normal, albeit different, manner. Further, no jurisdictional limitation may be implied from the fact that a separation order is not one of the examples of possible orders identified in the Explanatory Memorandum.

[27] There is no basis to the proposition that the Order requires the payment by the District of a pecuniary amount, either in terms or in its effect. It is not directed at providing compensation to Ms Lal or penalising the District; it does no more that confirm that for the alternative work identified in paragraph [2] of the Order Ms Lal will receive her normal rate of remuneration. An Order which has the effect of requiring the continuation of the payment of normal wages for work performed in the context of a continuing employment relationship does not fall within the exclusion in s 789FF(1). The proposition that any order which potentially requires some monetary expenditure on the part of the employer falls foul of the exclusion must be rejected; were it otherwise, the scope of the power in s 789FF(1) would be narrowed to the extent of substantially defeating its purpose. It would mean, for example, that the illustrative types of orders identified in the passage from the Explanatory Memorandum quoted above might not be able to be made because they would likely have the effect of the employer incurring some monetary cost.

[28] There is likewise no basis for the proposition that the Order is one requiring Ms Lal's reinstatement. We note that, notwithstanding what the Explanatory Memorandum says, there is no express exclusion in s 789FF in respect of reinstatement orders, although we accept that such an exclusion might arguably be implied on a number of bases. However, reinstatement is a remedy for a person who has been dismissed. Ms Lal has not been dismissed, so there is no reason to characterise the Order as one for reinstatement.

[29] Fourth, in respect of the fourth ground of appeal challenging the Commissioner's exercise of his discretion, we accept Ms Lal's submission that the relevant matters said by the District to have been erroneously excluded from consideration were never raised by the District at first instance. We have earlier set out, in full, the submissions which the District made before the Commissioner. It was not submitted that Ms Lal would not be suitable for the role at St George Hospital, only that there might be some difficulty in providing her with any necessary training over the summer holiday period. It is not the function of the appeal process to provide a further opportunity for an unsuccessful party to redress deficiencies in the case the party advanced at first instance.[9] In addition and in any event, we were informed that because the position at St George Hospital has now been substantively filled, paragraph [1] of the Order is no longer operative and paragraph [2] is now the applicable provision. Accordingly, the fourth ground of appeal has been rendered moot by the progress of circumstances.

[30] Finally, we note that there was no contention by the District that the Commissioner was required but failed to take into account the matters identified in s 789FF(2), so this is not a matter to which any consideration need be given.

T. Woods, solicitor, on behalf of the South Eastern Sydney Local Health District

[2] Transcript 20 December 2018 PNs 27-28

[7] [2016] FWCFB 2367

[8] [2014] FWCFB 1440, 241 IR 158

[9] Metwally v University of Wollongong [1985] HCA 28, 59 ALJR 481, 60 ALR 68

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