DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Harpreet Singh
(AB2015/282)

Application for an order to stop bullying – jurisdiction – single incident – whether alleged conduct capable of meeting the requirement of being bullied at work – meaning of “repeatedly behaves unreasonably” – application dismissed.

1. Background

[1] On 19 June 2015, Mr Harpreet Singh made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the FW Act).

[2] The application alleges bullying behaviour by an employee, Mr Ashcroft, in a workplace conducted by Coca-Cola Amatil Australia Pty Ltd (CCA) in Brisbane. Mr Singh is an employee of Programmed Integrated Workforce Pty Ltd (PIW) and has been assigned to that workplace from time to time.

[3] Mr Ashcroft is an employee of CCA.

[4] I note that an earlier s.789FC application was made by Mr Singh concerning the incident that lies at the heart of this present matter. The original application was discontinued by Mr Singh apparently as a result of the Commission providing feedback about the particular parameters of the anti-bullying provisions of the FW Act.

[5] Mr Singh apparently reconsidered his circumstances and ultimately lodged the present application largely in the same terms.

[6] PIW, CCA and Mr Ashcroft (the respondent parties) have each raised jurisdictional objections to the application arising from the definition of bullying conduct under the FW Act. PIW has also raised an additional jurisdictional objection relating to the statutory prerequisites for making an order. I will return to this second aspect later in this decision.

[7] Mr Singh contends that on 31 December 2014, Mr Ashcroft acted unreasonably towards him and he was physically and verbally assaulted. Mr Singh accepts in his application that the conduct only occurred once. 1

[8] The respondent parties contend that the alleged bullying conduct described in the application is an isolated, one-off incident and as such does not satisfy the definition of bullying as per s.789FD of the FW Act. That is, the alleged conduct, which is denied, occurred once on Mr Singh’s own account, and the alleged incident occurred some six months ago with no further incidents occurring involving Mr Ashcroft.

[9] The Commission held a preliminary conference on 27 July 2015. Arising from the conference, directions for the filing of submissions and materials were issued in the following context as confirmed with all parties:

“(a) Harpreet Singh (the Applicant) has applied for an FWC order to stop bullying.
(b) There is apparently no contest that the applicant is a worker within the meaning of the Fair Work Act 2009 (the Act) and that any alleged conduct relied upon has taken place in the context of a constitutionally-covered workplace.
(c) There is a dispute about the precise circumstances of an altercation between Mr Singh and Mr Ashcroft and no findings have yet been made in that regard.
(d) The applicant accepts that the alleged bullying conduct was a one-off incident and there is no repeated behaviour.
(e) The Commission has raised with the parties the potential implications of s.789FD of the Act and the definition of bullying behaviour contained therein. That is, the apparent requirement that any unreasonable behaviour must be repeated and whether a single unreasonable action constitutes bullying behaviour within the meaning of the Act.
(f) The applicant seeks that the anti-bullying application be determined by the Commission.
These matters arise from s.789FC and s.789FD of the Act (extract attached).
Should any party consider that the above is not accurate, the FWC and the other parties should be advised as soon as possible.” 2

[10] The Commission also indicated that subject to any contrary views, the issue associated with the definition of bullying conduct would be determined on the basis of the written materials.

[11] The parties subsequently lodged written submissions and no request for a hearing on the immediate issue was made.

2. The meaning of bullying behaviour under the FW Act

[12] The Commission’s capacity to make orders in the anti-bullying jurisdiction relies, amongst other matters, on a finding that the applicant worker(s) has, in effect, been bullied at work. This arises from s.789FF of the FW Act which relevantly provides as follows:

“789FF FWC may make orders to stop bullying

(1) If:

(a) a worker has made an application under section 789FC; and

(b) the FWC is satisfied that:

(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.

… ….”

[13] The meaning of a worker being bullied at work is established by s.789FD of the FW Act in the following terms:

“789FD When is a worker bullied at work?

(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally-covered business:

(i) an individual; or
(ii) a group of individuals;

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:

(a) the person is:

(i) a constitutional corporation; or
(ii) the Commonwealth; or
(iii) a Commonwealth authority; or
(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.”

[14] For present purposes, there is no contest that the applicant is a worker and that the alleged conduct took place whilst he was at work in a constitutionally-covered business.

[15] The immediate issue to be determined is whether the conduct as alleged by Mr Singh is capable of constituting bullying conduct within the meaning of the FW Act given the one-off nature of that alleged conduct.

[16] This aspect of the definition in s.789FD was discussed in S.B. 3 and the Commission found as follows:

“[41] Having regard to the approach urged by the authorities, the concept of individuals ‘repeatedly behaving’ unreasonably implies the existence of persistent unreasonable behaviour but might refer to a range of behaviours over time. There is no specific number of incidents required for the behaviour to represent ‘repeatedly’ behaving unreasonably (provided there is more than one occurrence), nor does it appear that the same specific behaviour has to be repeated. What is required is repeated unreasonable behaviour by the individual or individuals towards the applicant worker or a group of workers to which the applicant belongs.

[42] An applicant may rely upon conduct that took place prior to the commencement date of the new provisions, to demonstrate bullying conduct.

[43] ‘Unreasonable behaviour’ should be considered to be behaviour that a reasonable person, having regard to the circumstances, may consider to be unreasonable. That is, the assessment of the behaviour is an objective test having regard to all the relevant circumstances applying at the time.

[44] The unreasonable behaviour must also create a risk to health and safety. Therefore there must be a causal link between the behaviour and the risk to health and safety. Cases on causation in other contexts suggest that the behaviour does not have to be the only cause of the risk, provided that it was a substantial cause of the risk viewed in a common sense and practical way. This would seem to be equally applicable here.

[45] A risk to health and safety means the possibility of danger to health and safety, and is not confined to actual danger to health and safety. The ordinary meaning of ‘risk’ is exposure to the chance of injury or loss. In the sense used in this provision, the risk must also be real and not simply conceptual.

[46] Behaviour will not be considered to be bullying conduct if it is reasonable management action carried out in a reasonable manner.”

[17] Further, Hatcher VP in Amie Mac v Bank of Queensland Limited and others 4 (Amie Mac) considered paragraphs [41] and [42] above and observed:

“[89] I respectfully agree with those statements, but I would add three further observations about the interpretation and practical application of the expression “repeatedly behaves unreasonably” in s.789FD(1)(a). First, the expression falls within a definition provision. The function of a legislative definition, as was pointed out by McHugh J in Kelly v R, is not to enact substantive law, but to provide aid in construing the statute. A definition provision is therefore not to be interpreted in isolation and thereby given a meaning which negates the evident policy or purpose of a substantive enactment. Part 6-4B has the evident purpose of establishing a mechanism by which the bullying of workers at work may be stopped. In interpreting, and applying, the expression “repeatedly behaves unreasonably” as it appears in s.789FD(1)(a), the concept of repeated unreasonable behaviour is not to be approached in a manner which divorces it from that purpose. The subject matter is bullying at work, and that must be borne steadily in mind in any consideration as to whether particular behaviours are unreasonable for the purpose of s.789FD(1)(a). A consideration of unreasonable behaviour which loses sight of the objective and subject matter of Part 6-4B may lead to the provisions not achieving their intended purposes, or being used for a purpose that was not intended.”

[18] Earlier in Amie Mac, the Vice President set some of the context for the provisions in the following terms:

“[87] The requirement for repeated unreasonable behaviour is clearly a core element of Part 6-4B. The Explanatory Memorandum to the Fair Work Amendment Bill 2013 through which Part 6-4B was enacted discloses that the definition of bullying at work in s.789FD, including this element, reflected a recommendation for such a definition contained in the report of the House of Representatives Standing Committee on Education and Employment “Workplace Bullying - We just want it to stop”. In referring to that report, the Explanatory Memorandum said:

“109. The Committee went on to note that ‘repeated behaviour’ refers to the persistent nature of the behaviour and can refer to a range of behaviours over time and that ‘unreasonable behaviour’ is behaviour that a reasonable person, having regard to the circumstances may see as unreasonable (in other words it is an objective test). This would include (but is not limited to) behaviour that is victimising, humiliating, intimidating or threatening.”

[19] As is clear from the above, for the behaviour to be ‘repeated unreasonable behaviour’ it cannot be a single occurrence. The definition implies the existence of persistent unreasonable behaviour but might refer to a range of behaviours over time. That behaviour may also be undertaken by an individual or a group of individuals and be directed towards the applicant worker or a group of workers to which the applicant belongs. The unreasonable behaviour must however be repeated.

[20] The definition in s.789FD(1) must also be read conjunctively. That is, the requirements in both ss.(1)(a) and ss.(1)(b) must both be satisfied. This arises because of the construction of the provision and the “and” which links both subsections. This is also the evident intention of the provision.

[21] This means that the Commission must be satisfied that there was conduct whereby an individual (or a group of individuals) has repeatedly behaved unreasonably towards the worker, or a group of workers of which the worker is a member, and that this behaviour created a risk to health and safety.

3. Could the alleged conduct satisfy the statutory requirements to demonstrate that the applicant has been bullied at work?

[22] There is a dispute about the precise circumstances of an altercation between Mr Singh and Mr Ashcroft and it is not appropriate, or necessary, to make any findings for present purposes.

[23] It is sufficient to note that it is common ground that a verbal altercation occurred between Mr Singh and Mr Ashcroft on 31 December 2014 and that subsequently the applicant was moved to another production line. Mr Singh contends, amongst other matters, that Mr Ashcroft was attempting to give him instructions without authority and did so in a very rude manner. Mr Singh further alleges that ultimately Mr Ashcroft pushed him and made certain threats.

[24] Mr Ashcroft denies that he was rude or pushed Mr Singh at any time and has also made certain counter allegations about the applicant’s conduct.

[25] I note that following the event, PIW discussed the incident with Mr Singh and that the applicant was offered and accepted, at least for a period of time, further work assignments at CCA. It is also apparently the case that CCA has taken steps to avoid having Mr Singh and Mr Ashcroft rostered to work together.

[26] There is no suggestion of further incidents or dealings between Mr Singh and Mr Ashcroft.

[27] Mr Singh contends that what occurred on 31 December 2014 was bullying behaviour, even if it was not a repeated incident, as defined in the FW Act.

[28] It is evident from Mr Singh’s application and submissions that he is very concerned and troubled about his treatment and considers that his employer and CCA has unjustifiably not accepted his version of the events.

[29] The substance of his position is reflected in the following submission made in connection with the events of 31 December 2014:

“3. These all actions interpret and come under the Act s.789FD subsection (1B) definition of bullying behavior. As Mr. Ashcroft behaved aggressively to me. He tried to harm me physically; he harassed me in front of the other people. He humiliated me by getting me out of the factory premises. He belittled me by being aggressive in front of everybody. His motive was my exclusion from the workplace simply because he didn't like me and felt he was far more superior to me and I was excluded by Mr. Meher’s intervention.” 5

[30] It is also apparent from Mr Singh’s position during the proceedings that he is contending that because, on his view, the incident was serious and involved a risk to his health and safety, it was bullying conduct (as would be generally understood) and should therefore fall within the coverage of the Commission’s anti-bullying powers.

[31] I also note that in his submissions Mr Singh has made mention that Mr Ashcroft allegedly did not greet him despite Mr Singh’s attempt to initiate a “healthy conversation.” I understand this to be by way of context to the events of 31 December 2014.

[32] PIW, CCA and Mr Ashcroft contend that Mr Singh has accepted that there was a one-off incident and that this does not meet the requirement of being ‘repeated unreasonable behaviour’.

[33] For present purposes I have (without making any findings to that end) dealt with the immediate issues on the basis of Mr Singh’s factual contentions.

[34] There would be little doubt that the conduct on 31 December 2014 as alleged by Mr Singh would be objectively unreasonable and such as to create a risk to health and safety. That is, the alleged verbal and physical conduct would, if ultimately found to have occurred, have the requisite real possibility of danger to health and safety and would not be reasonable behaviour in a workplace of the nature conducted by CCA.

[35] However, even if that be the case, there is no sense in Mr Singh’s allegations that there has been any other incident or form of unreasonable conduct by Mr Ashcroft towards him that is capable of constituting repeated unreasonable behaviour. In that regard, it is important to note that the application relies upon the particular alleged conduct of Mr Ashcroft (and not conduct by a group of individuals) and accepts that there was only a single occurrence of that conduct.

[36] Given that all of the requirements of s.789FD(1) must be met, there is no foundation for a finding in this case that there has been bullying conduct within the particular meaning of the FW Act. For reasons outlined earlier, it is the particular statutory meaning that must be applied rather than any other general notion of “bullying”.

[37] In these circumstances, it is not necessary to deal with the second objection raised by PIW; being the absence of a future risk of bullying behaviour. This issue arises from s.789FF(b)(ii) of the FW Act as set out earlier in this decision 6 and from the fact that CCA and PIW have apparently taken administrative action to ensure that Mr Singh and Mr Ashcroft do not work together.

[38] This issue has not been subject to detailed submissions and it is unclear whether Mr Singh accepts that the administrative action has been taken and whether it would have the effect of removing any future risk of unreasonable conduct against him by Mr Ashcroft. In any event, because s.789FF(1)(b)(i) is not satisfied in this application, there is no basis to consider whether s.789FF(1)(b)(ii) of the FW Act applies.

4. Conclusions and order

[39] As a result of the above findings, it is not open on Mr Singh’s version for the Commission to find that the applicant was bullied at work within the particular meaning of the FW Act.

[40] The single incident, whilst on Mr Singh’s account would be clearly unreasonable and inappropriate, is not such as to provide the necessary jurisdiction to the Commission to make orders in the context of the anti-bullying regime of the FW Act.

[41] I do note that there are other avenues that may be open to an employee who considers that they have been discriminated against, or subject to adverse action, on various grounds. 7

[42] However for reasons outlined above, there is no jurisdiction to determine this particular application.

[43] The application is dismissed and I so order.

COMMISSIONER

Appearances:

H Singh, the applicant, on his own behalf.

J Cameron on behalf of Programmed Integrated Workforce Pty Ltd.

M Rofail on behalf of Coca-Cola Amatil Australia Pty Ltd.

H Ashcroft, the person named, on his own behalf.

Conference details:

By telephone

2015

27 July.

Written submissions:

2015

2, 14 August (Mr Singh)

5 August (Mr Ashcroft)

10 August (PIW).

 1   Form F72 aapplication lodged on 19 June 2015.

 2   Extract from directions issued by the Commission on 28 July 2015.

 3   [2014] FWC 2104.

 4   [2015] FWC 744.

 5   Submission of Mr Singh’s of 2 August 2015.

 6   See the discussion about future risk in Obatoki v Mallee Track Health & Community Services and Others [2015] FWCFB 1661 including the need for the future risk to apply to the applicant and arise from the potential future conduct of the individual(s) found to have conducted the repeated unreasonable conduct.

 7   Including the General Protections in Part 3-1 of the FW Act.

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