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[2021] FWC 790
defendant. Application dismissed.
Ms Fishman, a cook at a childcare centre, claimed she was bullied by her supervisor and manager. She said they yelled at her, called her names, and unfairly put her on performance improvement plans. The Fair Work Commission found that the managers' behaviour was not unreasonable. The performance plans were a proper response to concerns about how Ms Fishman treated her co-workers. The Commission also found that even if there had been bullying, Ms Fishman had been off work for months with a psychological injury and was unlikely to return soon, so there was no risk of ongoing bullying. Finally, the Commission noted that the order Ms Fishman wanted—simply telling the managers to 'stop bullying'—was too vague to be enforceable. The application was dismissed.
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1 cited instrument linked from this judgment.
s.789FC - Application for an order to stop bullying
Application for an order to stop bullying - application dismissed
[1] This decision concerns an application made by Ms Svetlana Fishman for an anti-bullying order under s 789FC of the Fair Work Act 2009 (Act). Ms Fishman contends that at various times from December 2018 to June 2020 she was subjected to bullying by her employer, Childcare Management Systems Pty Ltd (company), and by two individual respondents, Ms Shelly Spilkin, who is Ms Fishman's supervisor, and Ms Megan Sharman, the area manager. The company runs a child care centre where Ms Fishman is employed as a cook working four days a week. The respondents deny that Ms Fishman has been subjected to bullying.
[2] A worker is 'bullied at work' if, while the worker is at work in a constitutionally-covered business, an individual or group of individuals 'repeatedly behaves unreasonably towards the worker' and that behaviour 'creates a risk to health and safety' (s 789FD(1)). The Commission may make an anti-bullying order only if it is satisfied that the worker 'has been bullied at work' (s 789FF(1)(b)(i)), and that 'there is a risk that the worker will continue to be bullied at work' (s 789FF(1)(b)(ii)).
[3] Ms Fishman gave evidence about the circumstances which in her view demonstrate that she has been bullied at work. In summary, her evidence was as follows:
In around May 2018, Mr Dilpreet Mr Singh was employed to work in the kitchen. Ms Fishman considered him a poor worker. She always had to finish his work. Ms Fishman asked Ms Spilkin and Ms Sharman for assistance but did not receive any help. Ms Fishman then spoke to the owner of the company about Mr Singh's poor performance. Ms Spilkin and Ms Sharman told her that this was inappropriate and she was placed on a performance improvement plan (PIP). Ms Fishman believed that she had acted in accordance with company policy, which states that employees can raise complaints with
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Application dismissed.
In December 2018, Mr Singh resigned and Ms Nancy Shamoon was hired to replace him. Ms Fishman thought that she too was a poor worker. Nothing was done to improve her performance. Ms Shamoon left the company after a few months.
In May 2019, Ms Rupika Jayasinghe was hired to work in the kitchen. Ms Fishman thought Ms Jayasinghe was a poor worker. Because Ms Fishman was on a PIP, she did not speak to Ms Jayasinghe about her shortcomings, but at some point she left a note for her simply asking that she keep the kitchen clean.
On 24 April 2020, Ms Spilkin delivered some boxes of challah bread to the kitchen. The empty boxes were supposed to be returned to the delivery company once the challah had been unloaded, but they were left in the kitchen. Ms Fishman said that she asked Ms Spilkin why this had occurred, and that Ms Spilkin then screamed at her and said, 'As soon as you walk in, you start moaning', and then began throwing boxes around in an aggressive way.
On 4 May 2020, Ms Fishman was called to a meeting to discuss the note that she had left for Ms Jayasinghe. Ms Fishman said that during the meeting she was yelled at by Ms Spilkin and Ms Sharman and told that she could either resign or start working five days a week. Ms Fishman was later given a formal warning letter.
Ms Fishman's mental health then declined. On 9 May 2020 she made a workers' compensation claim in respect of a mental health injury related to her employment. The claim was accepted on 9 June 2020. She has been absent from work since 8 May 2020.
Ms Fishman said that Ms Spilkin would regularly scream at her and raise her voice aggressively. She said that Ms Spilkin called her names, accused her of being nasty and rude, and of being a liar and a moaner. Ms Fishman said that she was also frequently yelled at by Ms Sharman.
Ms Fishman said that she is seeing a psychologist due to the severe impact of bullying, which has caused her to have a nervous breakdown. She has been prescribed antidepressants. She has difficulty sleeping, is constantly tired, suffers from irritability and finds it difficult to complete simple tasks.
[4] Dr Boris Goloub, Ms Fishman's treating psychologist, said in his witness statement that Ms Fishman has been his patient since December 2018, when she presented with anxiety associated with a stressful situation at work. He said that her symptoms included anxiety attacks, concentration and memory problems, and difficulty breathing, and that her diagnosis is one of adjustment disorder with mixed anxiety and depressed mood.
[5] Ms Sharman gave the following evidence:
She considered that Ms Fishman was proud of her kitchen and did not believe that the employees who worked on her day off were up to her standards. Ms Fishman had remarked that she should work five days a week because the other employees did not do what she asked them.
Ms Fishman often left notes for other employees that were critical of their work. Employees did not respond well to these notes and were generally upset by them. Ms Fishman had been leaving notes for Mr Singh. In late 2018, Ms Sharman told Ms Fishman that she should not leave messages for Mr Singh, and that she should speak to Ms Spilkin if she was frustrated with him. Ms Fishman was placed on a PIP.
In late 2019, Ms Jayasinghe approached Ms Sharman in tears and said that Ms Fishman was constantly leaving her notes and sending her texts criticising her work. On 14 January 2020, Ms Sharman had a meeting with Ms Fishman and told her that if she had a problem with a co-worker, she must first speak to her or Ms Spilkin about it. After this meeting, Ms Fishman was placed on a further PIP.
Ms Sharman denied ever having screamed at Ms Fishman or having raised her voice or behaved in an aggressive manner towards her.
[6] Ms Spilkin gave the following evidence:
Ms Fishman was a good cook and kept the kitchen tidy, but she often spoke about other employees in a negative way and criticised them about minor things.
Ms Fishman was placed on a PIP in December 2018 because she had not followed the correct grievance procedure and because she had been speaking to other employees about Mr Singh's performance after being told not to do so.
On 21 April 2020, Ms Jayasinghe showed Ms Spilkin a note that Ms Fishman had left her about a coffee cup that had been left on the bench at work. On 4 May 2020, Ms Spilkin had a meeting with Ms Fishman to discuss the note. Ms Spilkin said that it was unacceptable to leave critical notes and asked why it mattered if a clean cup was left in the kitchen. Ms Fishman replied that the cup had germs and that Ms Jayasinghe did nothing but drink tea all day. At a further meeting on 8 May 2020 Ms Spilkin told Ms Fishman to stop complaining about Ms Jayasinghe and to stop writing critical notes. She told Ms Fishman that she would be receiving a warning.
Ms Spilkin denied telling Ms Fishman that she would have to leave her job if she did not work five days a week. She said that it was Ms Fishman who had suggested that she might work five days a week, but then decided not to.
Ms Spilkin denied throwing the challah boxes or behaving aggressively. Ms Spilkin said that Ms Fishman had said to her_, 'What are these boxes doing in my kitchen? I told you I did not want boxes in my kitchen'_. Ms Spilkin said that she replied, 'Please don't moan Sveta, I intended to unpack the boxes but haven't had a chance yet, I will do it now.'
Ms Spilkin denied calling Ms Fishman a liar or telling her that she was nasty. She denied screaming at Ms Fishman or ever speaking to her in an aggressive manner.
Ms Spilkin believed that Mr Singh, Ms Shamoon and Ms Jayasinghe all performed well.
[7] I accept the evidence of Ms Spilkin and Ms Sharman. I found them both to be credible witnesses. They answered questions candidly and consistently and without an eye to forensic advantage. They made appropriate concessions. In particular, I make the following factual findings, on the balance of probabilities. First, I accept the evidence of Ms Spilkin and Ms Sharman that they did not scream or yell at Ms Fishman or speak to her in an aggressive manner. Ms Spilkin and Ms Sharman denied having done so and I believe them.
[8] Secondly, I find that Ms Spilkin did not call Ms Fishman a liar or call her names. Her denial was genuine and persuasive. I find that she did ask Ms Fishman to stop moaning about the challah boxes, but that this was not unreasonable in the circumstances.
[9] Thirdly, I find unsubstantiated Ms Fishman's contention that Ms Spilkin and Ms Sharman were 'nasty or rude'. No details of these allegations were provided, such as situational context, dates, or direct speech. I do not find the allegations to be credible.
[10] Fourthly, I find that neither Ms Spilkin nor Ms Sharman threatened to end Ms Fishman's employment if she did not agree to work five days a week. I find that Ms Fishman proposed to work five days, as this would mean that the kitchen was not left in the hands of other employees on her day off. The possibility of Ms Fishman working five days was discussed at the disciplinary meeting in May 2020, but she was not told that she had to work five days, nor was she threatened with dismissal if she refused. Indeed, she did refuse, and was not dismissed.
[11] Fifthly, I find that Ms Fishman was placed on two PIPs, not one, as alleged by Fishman. Ms Sharman was clear that both PIPs were recorded in writing and given to Ms Fishman. I believe her.
[12] Sixthly, I find that Ms Shamoon was not dismissed by the company, as was suggested by Ms Fishman. I accept the evidence of Mr Sharman and Ms Spilkin that she simply resigned. This is consistent with Ms Spilkin's evidence that Ms Shamoon was a good worker.
[13] Seventhly, I reject Ms Fishman's suggestion that, because the notes she left for employees were written in the communications book, they were effectively approved by the respondents. Ms Sharman and Ms Spilkin said that they read some but not all of the entries in the book, and Ms Spilkin said that Ms Fishman showed her only some of them. The evidence does not establish that Mr Spilkin or Ms Sharman approved the relevant notes.
[14] Eighthly, I accept Ms Spilkin's account of the incident involving the challah boxes. I find that Ms Fishman was upset about the boxes being left in her kitchen, which she liked to keep neat and tidy, and that Ms Spilkin found Ms Fishman fastidious and frustrating. But I find that Ms Spilkin did not throw the challah boxes or behave aggressively. I do not consider her conduct to have been unreasonable.
[15] I further find that, in the circumstances, it was not unreasonable for Ms Spilkin and Ms Sharman to place Ms Fishman on a PIP, either in late 2018 or in January 2020. I consider that they had genuine and reasonable concerns about Ms Fishman's conduct, given that she had had problems with three co-workers in succession, all of whom Ms Fishman considered to be poor workers, when Ms Spilkin considered them to be good workers. In my opinion, there is no rational basis to conclude that the disciplinary action was anything more than what it appears to have been, namely a response to the respondents' concerns about Ms Fishman's behaviour. There is nothing unreasonable about taking disciplinary action in such circumstances, particularly when there are concerns about the welfare of other employees.
[16] Ms Fishman contended that it was unreasonable for her to have been placed on a PIP for contacting the owner of the business when the policy document stated that an employee may raise complaints with 'any staff member', and that this was regarded as including the owners. The policy document is not in evidence, and I am therefore not able to consider the quoted excerpt in context, however this provision of the policy, like any text, must be read and applied reasonably. Plainly it would not be reasonable, and it would not have been intended, that the owners of the business could be contacted in connection with any minor grievance. In any event, Ms Fishman was placed on the PIP also for reason of her treatment of Mr Singh, which was in my opinion a good reason in the circumstances.
[17] I accept that Ms Fishman has a different perception about many of these matters, and that she believes that she has been subjected to unreasonable behaviour that has created a risk to her health. However, the Commission must make an objective assessment of the evidence and make findings based on the balance of probabilities. I am not persuaded that the respondents engaged in any unreasonable conduct. On the basis of my findings above, and my assessment of the material before the Commission, I am not satisfied that Ms Fishman has been bullied at work. The jurisdictional requirement in s 789FF(1)(b)(i) has not been established.
[18] Even if I had concluded that Ms Fishman had been subjected to bullying, I would not have been satisfied that there is currently a risk that she will continue to be bullied at work. Ms Fishman has been absent from work since May 2020. Her psychologist confirmed that she suffers from a psychological impairment. Ms Fishman gave evidence that she has had a nervous breakdown and finds it difficult to complete simple tasks. At the hearing, Ms Fishman's counsel submitted that she is willing to return to work if an anti-bullying order is made. But the evidence does not support a conclusion that Ms Fishman is likely to be able to return to work in the near to medium term. As to any risk that might have been said to exist beyond that timeframe, there would be sound discretionary reasons not to make an order that would do no work until an undetermined point in the future, by which time circumstances might have changed.
[19] Finally, I note that Ms Fishman's written submissions asked the Commission to order simply that the respondents 'cease bullying' her. An anti-bullying order could not properly be made in such general terms. An order should identify the particular things that a respondent must do or must not do in order to prevent the worker from being bullied at work. An order should be responsive to the particular bullying conduct that the Commission has found to have taken place, and the risk that, in the Commission's assessment, the worker will continue to be bullied at work. I note that s 789FG, which prohibits the contravention of an order, is a civil remedy provision, breach of which exposes a person to serious consequences. Any order under s 789FF should be clear and precise so that persons bound by the order may comply with it, and then be confident that they have fulfilled their obligations. A vague order that simply directed a person to 'stop bullying' would leave an uncertain punitive shadow hanging over a respondent. This would be unfair. It would also be of little practical utility for an applicant because it does not engage with the factual substance of the complaint. Therefore, even if the jurisdictional requirements for the making of an order had been made out in the case, I would nevertheless have declined to issue the order sought.
[20] The application is dismissed.