[2016] FWC 1498
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

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

Keiko Adachi
(AB2015/668)

COMMISSIONER GREGORY

MELBOURNE 16 MARCH 2016

Application for an FWC order to stop bullying – further application under s.587 for matter to be dismissed on grounds of no reasonable prospect of success.

Introduction

[1] Ms Keiko Adachi has been employed by Qantas Airways Ltd (“Qantas”) for almost 28 years. During this time she has worked primarily as a crew member on long haul flights and is now employed in the position of Customer Service Supervisor. However, at this point Ms Adachi has been off work since October 2014 due to ill health.

[2] On 24 September 2015 Ms Adachi made application under s.789FC of the Fair Work Act 2009 (“the Act”) for an order to stop bullying. Her application named three individuals against whom bullying is alleged. The application was dealt with in conference in Sydney on 3 December, but was unable to be resolved.

[3] The application was then set down the hearing on 23/24 February and directions were issued for filing and service of submissions and evidence. However, Qantas responded by indicating it now sought to pursue a jurisdictional objection as previously foreshadowed in its Form F73 – Employer Response document. It submits the application should be dismissed because the Commission cannot make orders to stop bullying because there is no present risk Ms Adachi will be bullied at work.

[4] After further consultation with the parties the Commission issued amended directions indicating the matter was now listed to deal only with the jurisdictional objection raised by Qantas. Amended directions were also issued for filing and service of evidence and submissions. This decision accordingly deals with that jurisdictional objection.

[5] It is also noted at this point that no acknowledgement or findings about whether Ms Adachi has been bullied at work have been made by or about any of the named individuals. Ms Adachi’s substantive application is instead still to be determined.

[6] Ms Helen McKenzie from Ashurst appeared on behalf of Qantas. Ms Tina Santone from Santone Lawyers appeared on behalf of Ms Adachi. Both were given permission to appear under s.596(2)(a) of the Act as the matter involves a degree of complexity and their involvement would enable it to be dealt with more effectively.

The Issue to Be Decided

[7] Section 789FD of the Act deals with “When is a worker bullied at work?” It states:

“When is a worker bullied at work?

[8] Section 789FE “FWC to deal with applications promptly” continues to place emphasis on applications being dealt with expeditiously. It also makes reference to the circumstances in which an application might be dismissed, including the reference to s.587 contained in the note that follows. S.789FE states:

[9] Section 789FF continues to deal with the circumstances in which the Commission may make orders to stop bullying. It relevantly states:

[10] As indicated, the note that follows s.789FE makes reference to s.587 of the Act. The application by Qantas in these proceedings is made under this section. S.587 “Dismissing applications” relevantly states:

It concludes by indicating the Commission may dismiss an application on its own initiative or on application.

[11] As indicated, Qantas now makes application under s.587 for the Commission to exercise the discretion available to it to dismiss Ms Adachi’s application because it “has no reasonable prospect of success.” In its submission s.789FF contains two preconditions or pre-requisites that are required to be satisfied before any order can be made. The second of these requires that there is a risk the worker will continue to be bullied at work. Qantas submits that in all of the circumstances of this matter it cannot be concluded, on any reasonable basis, that any such risk exists. Therefore, the application should be dismissed without the need for the Commission to satisfy itself that Ms Adachi has been bullied at work.

The Evidence and Submissions

[12] Qantas submits the Commission has no power to make an order under s.789FF, regardless of whether Ms Adachi has been bullied at work by any of the three named individuals, because it cannot be satisfied there is a risk she will continue to be bullied at work in the future.

[13] In its submission both sub paragraphs in s.789FF(1)(b)(i) and (ii) need to be satisfied in order for the Commission to have jurisdiction to make orders. It relies on the Full Bench decision in Obatoki v Mallee Track Health Community Services and Ors 5 (“Obatoki”) at [21] in support of this submission. It continues to submit that if the Commission finds sub paragraph (ii) cannot be satisfied then it is not necessary for it to make any determination about whether Ms Adachi has been bullied at work by any of the named individuals.

[14] Qantas also relies on the decision of Commissioner Hampton in G.C6 when he concluded:

[15] Qantas continues to submit the evidence indicates there is no risk, and certainly no “reasonably objectively found risk,” that Ms Adachi will continue to be bullied at work, even if she is found to have been bullied at work in the past. It initially relied upon two separate grounds in support of this submission. The first, as set out in its written submissions, is that Ms Adachi is not now “at work,” and has not been since October 2014, and there is no certainty about when she will return, given any return is conditional on her obtaining a medical clearance following an independent medical examination. At the time the written submission was filed Ms Adachi had not agreed to attend an independent medical examination, claiming it was unnecessary because she had already obtained a medical clearance from her own treating practitioner. However, Qantas was insisting she attend before returning to work because of the length of time she had been off work.

[16] However, Qantas now acknowledges in its oral submissions that Ms Adachi has since agreed to attend an independent medical examination, and this occurred on 17 February. It was now awaiting the results of that examination. Therefore, it does not continue to rely on its submissions based on there being no likelihood of Ms Adachi returning to work, but instead relies on the second ground, being that there is no risk Ms Adachi will continue to be bullied if she returns to work because she will not be “at work” with any of the named individuals. It makes this submission on the basis that the circumstances which caused Ms Adachi to be in contact with each of the named individuals have changed to the extent there is now no reasonable prospect she could continue to be bullied at work by any of them.

[17] It submits, firstly, in regard to Ms Natalie Velickovich, the first of the named individuals, that her involvement with Ms Adachi occurred when she was working as a Service Performance Manager and was responsible for managing Ms Adachi’s return to work after an extensive absence. However, Ms Velickovich now works in the role of Manager, Performance and Culture, Domestic Customer Experience, where she is only responsible for managing domestic cabin crew members, and has no interaction or responsibility for international cabin crew staff. It also submits she is now located at either the Sydney domestic terminal or Qantas’ Mascot corporate offices, which are both located several kilometres from the international terminal where Ms Adachi would be based on her return to work.

[18] The second individual named is Mr Grant Rowles. Qantas submits his contact with Ms Adachi occurred in June 2014 when he worked with her as an on-board coach. It submits he volunteered for this role to assist in her return to work program. However, he will not have any coaching or other role with her in the future. He has also been promoted to the position of Customer Service Manager and intends to move to live in Melbourne in April. Qantas continues to submit that because the Cabin Crew on long haul flights are generally rostered on flights originating from their home base Mr Rowles will not normally be rostered on the same long haul flights as Ms Adachi, who is based in Sydney.

[19] The third named individual is Mr Nicholas O’Connor. Mr O’Connor is employed in a senior role at Qantas as the Head of Cabin Crew and International Lounges, with overall responsibility for approximately 2,500 Flight Attendants. However, Qantas submits that in this role he has little direct contact with individual Flight Attendants, and has only met Ms Adachi on one occasion. He is also based at Qantas’ Corporate Office at Mascot, which is located several kilometres from the international terminal.

[20] Mr O’Connor also provided a witness statement in which he indicated that the day-to-day management of long haul Flight Attendants is the responsibility of Service Performance Managers. He said there are now seven staff working as Service Performance Managers, and each is responsible for approximately 350 individual Flight Attendants. The Service Performance Managers report in turn to Customer Experience Managers. He said three employees are employed in these roles, and they each report to him directly.

[21] Mr O’Connor said he could only recall meeting Ms Adachi on one occasion in March 2014 when she approached him after he gave a presentation to a group of cabin crew members participating in induction training. He said his only other contact with her had been through email communications in relation to her complaints about the other two named individuals.

[22] Mr O’Connor also confirmed in cross-examination that he had the overall responsibility for long haul Flight Attendants in the management structure at Qantas. He also said there was a possibility he could be involved in guiding or assisting the Customer Experience and Service Performance Managers in regard to issues involving individual Flight Attendants. It was also possible he could have some direct contact with individual Flight Attendants from time to time.

[23] Qantas continues to submit, in conclusion, that the application should be dismissed because the evidence makes clear there is no jurisdiction to make an Order. It refers in support to the decision of Deputy President Gostencnik in Dr Pushpa Ravi v Baker IDI Heart and Diabetes Institute Holdings Limited T/A Baker IDI Heart and Diabetes Institute; Dr Anne Reutens  8 (“Ravi”) when he stated:

[24] It also makes reference to the decision of Senior Deputy President Hamberger in Mr Stephen Jackson 10 (“Jackson”) when he stated:

[25] Qantas acknowledges these decisions each involve circumstances in which the Applicant’s employment relationship had ended. However, it submits this is not the definitive issue. In its submission the Commission must still be satisfied there is a risk the worker will continue to be bullied at work by one or other of the named individuals.

[26] It also submits that the risk of bullying continuing to occur must be a risk that is “objectively and discernibly identifiable,” based on the available evidence. It should not be simply a remote or speculative prospect that something might occur in the future. In its submission the evidence makes clear no such risk exists. It continues to submit:

[27] It also submits the Commission should have regard to the definition of bullying in the Act, which refers to an individual or a group of individuals repeatedly behaving unreasonably to the extent the behaviour creates a risk to health and safety. The Commission was therefore required to be satisfied the risk identified involves behaviour that comes within this definition.

[28] The submissions made in response on behalf of Ms Adachi refer at the outset to the Full Bench decision in Baker v Salva Resources Pty Ltd 13 (“Baker”) at [10] in support of her submission that any conclusion that a proceeding has no reasonable prospect of success “should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless or so lacking in merit or substance as to not be reasonably arguable.”14

[29] She continues to submit that the word “risk” in the present context should be construed as having its ordinary meaning, namely that of conveying a “possibility.” Therefore, all that she is required to establish in response to the present application is proof of the possibility that bullying behaviour will continue “at work.”

[30] Ms Adachi also submits Qantas has misstated the test that should apply in dealing with this application. She submits the test that should instead be applied is whether the application is so lacking in merit or substance that it could not be fairly argued the Commission could upon a final hearing of the matter be satisfied “there is a risk that the applicant will continue to be bullied at work by the individuals or group.” 15

[31] Ms Adachi continues to submit that she remains an employee of Qantas and wishes to return to work. She also submits she is ready and able to do so, and only needs to demonstrate at this point that it is fairly arguable she will return to work.

[32] She also submits that when she does return she will still be working for the same employer as each of the named individuals, and the fact she may not work at the same workplace location is immaterial to the risk or possibility they may bully her again.

[33] In regard to each of the named individuals she submits, firstly, that Mr O’Connor has overall responsibility for the part of the business in which she is employed. This means she will be in a position of potentially being at risk of being bullied by him, whether that involves direct or indirect contact, given bullying can occur by various means, and in different ways. In her submission there is sufficient evidence in regard to Mr O’Connor alone, leaving aside the other named individuals, for the Commission to form the view he will still have some contact, whether it be indirect or direct, with Ms Adachi when she returns to work, and this is sufficient to establish the possibility she will continue to be bullied at work.

[34] Ms Adachi submits in regard to Ms Velickovitch that it is possible she might again be in a position where she is involved in managing Ms Adachi’s performance. She also submits that long haul Flight Attendants may from time to time be required to work on short haul routes, again raising the possibility of future contact or involvement.

[35] She also submits there is a possibility she and Mr Rowles may come into contact again, even if he remains based in Melbourne, and there is always the possibility he may return to Sydney to live. She submits, in conclusion, in regard to each of the three named individuals that in any substantive hearing of her application the Commission would be required to make a determination, based on all of the evidence, about whether the relevant risk exists to require or enable the making of an order.

[36] Ms Adachi does acknowledge in her submissions that if there is no possibility of an Applicant being in the same workplace because, for example, the employment relationship has ended, then an application seeking orders to prevent bullying should not proceed. However, she submits by way of contrast that she continues to be employed by Qantas, and is ready to return to work. She also submits the possibility of her returning is now more likely, given she has recently completed the independent medical examination.

[37] She also makes reference to the decision in Baker where the Commission found:

[38] Ms Adachi concludes by submitting it is only necessary for her to establish at this point that there is a risk she will continue to be bullied at work, and she is not required to now establish the full extent of that risk. In her submission the evidence does establish that a possible risk exists, and the present application should therefore be dismissed and the matter set down for hearing to deal with her substantive application.

Consideration

[39] This application seeks an order under s.587(1)(c) to dismiss Ms Adachi’s original application because it “has no reasonable prospect of success.” Qantas submits it has no reasonable prospects of success because the Commission has no power to make the orders sought by Ms Adachi under s.789FF or, indeed, any other orders.

[40] It submits the evidence establishes that one of the preconditions in s.789FF that the Commission must be satisfied about before it can exercise its discretion to make orders, namely that “there is a risk that the worker will continue to be bullied at work by the individual or group,” cannot be met.

[41] Qantas relies on several recent Commission decisions in support of its application. I am satisfied, firstly, that these decisions do establish that the Commission does not have power to make orders to stop bullying unless it is satisfied there is a risk the worker will continue to be bullied at work. For example, DP Gostencnik concluded in Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines 17 (“Shaw”):

[42] A Full Bench of the Commission came to a similar conclusion in Obatoki when it stated at [16]:

[43] These decisions have also established that the particular circumstances involved can provide the basis for the Commission to exercise the discretion available to it to dismiss an application. Again, I refer by way of example to the decision of DP Gostencnik in Shaw when he stated:

[44] Commissioner Hampton came to a similar conclusion in G.C., which was also relied upon by Qantas, when he stated at [166]:

He concluded at [173]:

[45] However, it is also evident that the circumstances in each of these matters are different in one significant respect from the present matter in that in each case the Applicant was no longer employed by the named employer, as the following extracts confirm.

[46] In Shaw DP Gostencnik concluded at [7]:

[47] In G.C. Commissioner Hampton found at [164]:

[48] In Ravi DP Gostencnik found at [12]:

[49] Similarly, DP Kovacic found at first instance in Obatoki 26 at [10]:

[50] Finally, SDP Hamberger concluded in Mr Stephen Jackson:

[51] These decisions confirm, in summary, that the Commission must be satisfied about the existence of the pre-requisite or precondition contained in s.789FF(1)(b)(ii) before it can consider making an Order in response to an application under s.789FC. They also make clear that if the Commission is not able to be satisfied in this regard then this can provide the basis for an application to be dismissed. However, as indicated the circumstances in each case are different from the present matter in one significant respect, in that in each of those decisions the employment relationship was at an end. This is clearly not the case in the present matter.

[52] In coming to a decision in this matter I have also considered the nature of the tests to be applied before it is appropriate for the Commission to exercise the discretion available to it under s.587(3) to make orders under s.587(1).

[53] Qantas submits the Commission should apply an objective test and should dismiss the application if it is satisfied there is no “objectively and discernibly identifiable risk” the worker will continue to be bullied. It also submits that in coming to a decision about the possible risk the Commission should have regard to what that behaviour must constitute, given the definition in the Act of bullying being repeated unreasonable behaviour that creates a risk to health and safety.

[54] Ms Adachi submits in response that Qantas has misstated the test to be applied to an application under s.587. She refers to the Full Bench decision in Baker in support of the submission that an application, which seeks to establish that a proceeding has no reasonable prospect of success, “should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable.” 29 The Full Bench in that matter also made reference to previous Full Bench decisions, including the decision in A. Smith v Barwon Region Water Authority30 at [48] in support of its conclusions about the relevant approach to be adopted in dealing with an application to dismiss.

[55] DP Gostencnik also considered in some detail in Shaw what approach should be applied in dealing with an application under s.587. The application in that matter was made by the ANZ Bank on the basis that Mr Shaw’s application for an order to stop bullying had “no reasonable prospect of success” because he was no longer employed by the Bank. The following extracts from the Deputy President’s decision are relevant in this context (references omitted).

[56] I now turn to review the evidence that I consider relevant to the determination of this matter. That evidence suggests Ms Velickovitch, in her current role, is unlikely to have any foreseeable contact with Ms Adachi. Ms Velickovitch was Ms Adachi’s immediate Manager when she was employed in the role of Service Performance Manager and responsible for the management of cabin crew members involved in long haul flights. However, she has now taken on a new role and is now responsible for managing cabin crew involved in short haul domestic work. She is also now based at a different location. While it is possible to speculate about how her role might change again in the future, and how she might again come in contact with Ms Adachi, there is nothing to suggest this is likely in the foreseeable future.

[57] The evidence suggests the circumstances involving Mr Rowles are a little different. He was involved in coaching Ms Adachi as a fellow long haul cabin crew member when the alleged bullying occurred. He apparently volunteered to take on this role. Given what has occurred since it can be assumed he is unlikely to again take on a similar role. The evidence of Mr O’Connor also indicates he would not put Mr Rowles in that position again, given what has since transpired. The evidence also indicates Mr Rowles is moving from Sydney to Melbourne, and therefore will be working out of a different home base to Ms Adachi. It also indicates it is unlikely, although not impossible, the two would again work together on the same long haul flights. However, Ms Adachi suggests in response it is possible Mr Rowles could again return to live in Sydney at some point, meaning the possibility of future contact at work would be more likely.

[58] The circumstances involving Mr O’Connor, the third of the named individuals, are again different. As the Head of Cabin Crew and International Lounges at Qantas the evidence indicates Mr O’Connor has a significant position within the business, having overall responsibility for approximately 2,500 Flight Attendants, together with other staff who work in the international lounges. The evidence also indicates there are various levels of management between Mr O’Connor’s role and the long haul Flight Attendants. For example, Qantas employs seven Service Performance Managers, who are each responsible for the management of around 350 Flight Attendants. The Service Performance Managers, in turn, report to one of three Customer Experience Managers, who each report directly to Mr O’Connor.

[59] Mr O’Connor also said he could only recall having met Ms Adachi on one occasion, and this occurred when she approached him after he gave a presentation to a group of long haul Flight Attendants. He also said he had subsequently been involved in some exchange of emails with Ms Adachi.

[60] However, as indicated already, Mr O’Connor’s evidence confirms he has the overall responsibility for long haul Flight Attendants in the management structure at Qantas. He also said there was a possibility he could be involved in working with both the Customer Experience and the Service Performance Managers in regard to issues involving individual Flight Attendants and he could, from time to time, also have direct contact with individual long haul Flight Attendants.

Conclusion

[61] In coming to a decision in this matter I am satisfied, firstly, that the authorities have established that any conclusion to dismiss an application under s.587, on the basis that it “has no reasonable prospect of success,” should only be reached with extreme caution. I am also satisfied that in dealing with any such application the Commission should be guided by the principles referred to by the Full Bench in the decision in Baker v Salva Resources, and established by previous decisions of the Tribunal. These authorities make clear that the Commission should only act to dismiss a matter on the basis that it “has no reasonable prospect of success” when the application is so “manifestly untenable or groundless or so lacking in merit and substance as to be not reasonably arguable.” This approach is also reflected in the decision of Deputy President Gostencnik in Shaw. I am also mindful of the High Court decision in Spencer 32 where the Court held that full weight should be given to the expression “no reasonable prospect of success,” and the intent should not be confined or limited by any particular form of words.

[62] I am also satisfied that the test to be applied is a more substantial one than the test proposed by Qantas in its submissions, being that the risk is “objectively and discernibly identifiable” based on the available evidence. The rationale for applying a more stringent test can be explained by the fact an application under s.587 seeks to dismiss the matter without the substantial application being heard and determined.

[63] I have also had particular regard to the evidence of Mr O’Connor and his management role vis a vis the long haul Flight Attendants, such as Ms Adachi. That evidence indicates he has the ultimate management responsibility for those employees, including Ms Adachi, notwithstanding there are two intervening levels of management between their respective positions. It also indicates he could have occasion to discuss the circumstances involving an individual Flight Attendant with either or both of the Customer Service or Service Performance Managers, who have direct responsibility for the management of the long haul Flight Attendants and who, in turn, report to Mr O’Connor. It is also of some relevance that Ms Adachi is now a step closer to returning to work as a long haul Flight Attendant, given she has now agreed to undergo the independent medical examination demanded of her by Qantas as a condition of her return.

[64] I am satisfied that in these circumstances Mr O’Connor is in a position where he could through various means potentially be involved in bullying Ms Adachi “at work.” This could occur primarily because of his management responsibilities in regard to her position. It therefore follows that I am also satisfied there is “a risk that the worker will continue to be bullied at work by the individual or group.” This could, in turn, result in the Commission exercising its discretion to make orders to stop bullying.

[65] In coming to these conclusions I wish to emphasise strongly that no finding about bullying at work has been made at this point about Mr O’Connor, or for that matter about either of the other two named individuals. No adverse findings of any kind have, in fact, been made about any of the named individuals at this time. The respective merits of the substantive application by Ms Adachi are instead still to be determined.

[66] However, it follows from my conclusions that the application by Qantas under s.587 is dismissed. I now intend to contact the parties in regard to the future conduct of this matter. I am prepared to convene a further conference to explore the possibility of the matter being progressed in that way. However, this would only occur with the agreement of Ms Adachi, Qantas and each of the named individuals. If there is no agreement to this course of action the matter will be set down for hearing, and directions issued for filing and service of evidence and submissions.

COMMISSIONER

Appearances:

Ms Helen McKenzie from Ashurst appeared on behalf of Qantas.

Ms Tina Santone from Santone Lawyers appeared on behalf of Ms Adachi.

Hearing details:

2016.

Sydney:

24 February.

 1   Fair Work Act 2009 (Cth) at s.789FD

 2   Ibid at s.789FE

 3   Ibid at s.789FF

 4   Ibid at s.587

 5   [2015] FWCFB 1661

 6   [2014] FWC 6988

 7   Ibid at [166]

 8   [2014] FWC 7507

 9   Ibid at [13]

 10   [2015] FWC 402

 11   Ibid at [9]

 12   Transcript at PN379-PN380

 13   [2011] FWAFB 4014

 14   Ibid at [10]

 15   Exhibit A1 at para 5

 16   Above n.xiv

 17   [2014] FWC 3408

 18   Ibid at [15]

 19   Above n.v at [16]

 20   Above n.xvii at [17]

 21   Above n.vii

 22   Above n.vi at [173]

 23   Above n.xvii at [7]

 24   Above n.vi at [164]

 25   Above n.viii at [12]

 26   [2014] FWC 8828

 27   Ibid at [10]

 28   Above n.x at [9]

 29   Above n.xv at para 2

 30   [2009] AIRCFB 769

 31   Above n.xvii at [8] – [11]

 32   [2010] HCA 28; (2010) 241 CLR 181

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