| [2016] FWC 763 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Ms LP
(AB2015/229)
COMMISSIONER HAMPTON |
ADELAIDE, 12 FEBRUARY 2016 |
Fair Work Commission order to stop bullying – findings of unreasonable conduct made in earlier decision – whether orders should be made given present circumstances – nature of the power and discretion discussed – particular circumstances applying in this case including changes in the group of employees and within the workplace – not persuaded that orders should be made at this time.
1. Background
[1] This decision deals further with an application that has been made by Ms LP (the applicant) for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the FW Act). The application alleged bullying conduct by a group of individuals in a workplace which is conducted by a private sector corporate employer; “A” Pty Ltd (the employer). The workplace concerned is a well-known family owned restaurant operating in Adelaide, South Australia.
[2] The group of individuals includes Mr JP (a Co-Director/owner and Manager of the employer), Ms GF (the Accounts Clerk), and Mr NL (a lawyer acting on behalf of the employer and others in relation to an earlier application made by the applicant under these provisions). For convenience, and noting that common positions have been adopted, I will describe the employer and the individual parties as the respondent parties.
[3] The application was substantially dealt with in a decision issued on 4 November 2015 in LP [2015] FWC 6602 (the November decision) and this decision should be read in conjunction with the findings made in that matter. Without detracting from the detail of the November decision, I found that:
“[187] On that basis, the unreasonable conduct as I have found it to be involves a group of individuals and although it involves a range of behaviours, it is relevant to the overall consideration of bullying conduct.
[188] In terms of the risk to health and safety, the fact that the applicant is presently unfit for work and has been certified as such by her treating medical practitioners is relevant and indicative of risk. It is not however conclusive in its own right. This arises because those practitioners are dealing with the combined impact of a range of work and non-work factors upon the applicant and I need to assess the risk based upon findings of fact made in this matter about the actual unreasonable conduct.
[189] Further, for reasons outlined earlier, 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, and for present purposes, the risk must also be real and not simply conceptual. In that regard, whilst elements of conduct might not create a relevant risk in isolation, it is the overall effect and context of the behaviour as found by the Commission which must be assessed.
[190] It would be evident from my earlier findings that I have found that a number of the allegations about unreasonable conduct were not supported by the evidence or were not of a character to fit within the meaning of bullying conduct established by the FW Act. In terms of those allegations that have been substantiated, I have considered these together having regard to the Commission’s present statutory charter.
[191] On fine balance, I am satisfied that there was sufficient relevant unreasonable behaviour towards the applicant and/or the group of workers to which she belonged whilst at work to meet the requirements of s.789FD of the FW Act. However, I note that much of that behaviour occurred in a particular context that is now different and this will have an impact upon the capacity and appropriateness of any orders that might be considered in this matter.”
[4] And later:
“[195] Having contemplated the statutory considerations and the facts of this matter, I am not presently persuaded that I can, and should make orders in this matter. My reasons for that view include:
[196] Accordingly, it is appropriate that I hear further from the parties on these and any other developments that may impact upon the determination of the power and discretion to make any orders. These developments might well include the intention of, and capacity for, the applicant to resume work with the employer and whether a future risk is present given the introduction of the initiatives since the recommendations were made in the 2014 application.
[197] In addition, I would be informed by any conditions that might apply to any return to work arrangements being contemplated in connection with the applicant’s workers compensation claim. I would also need to consider the capacity for the employers’ own polices, if applied in light of the findings made in this decision, to advance a proper outcome.
[198] Further, the parties may well seek to update their position on all of the above issues in light of the various findings made in this decision.”
[5] Following the November decision, the applicant eventually confirmed that she did seek orders from the Commission and the respondent parties indicated that they were opposed to that course of action. Following a conference conducted by the Commission, directions were issued providing for the filing of submissions in support of their respective positions. The Commission also directed that in the absence of a request from a party seeking to provide evidence directly relevant to the immediate issue, the matter would be determined based upon the written submissions.
[6] The parties have now filed their submissions and have not sought to lead evidence. Given that development and the history of the matter, it is appropriate to now determine whether orders should be made based upon those submissions and the earlier findings of the Commission.
2. The positions advanced by the parties
2.1 Ms LP
[7] Ms LP contends that, subject to a medical clearance as sought by the employer, it is highly likely that she will return to the workplace where unreasonable conduct has taken place. Further, as some of that unreasonable conduct took place after the employer had implemented its new policies, there is a risk that future unreasonable conduct is likely to occur.
[8] The orders being sought by Ms LP have been expressed in the following terms:
“ A preventative injunction prohibiting future bullying conduct within the meaning of the FW Act, and it amendments from time to time, by the workplace, Mr JP and his representatives.
● Restitution (crediting) of all leave taken due to bullying matters, paid and unpaid.
● Costs to be awarded in my favour.” 1
[9] In terms of any financial costs enacting orders that may have to be borne by the employer, Ms LP referred to the money spent on fees defending the application and what she described as the employers lack of apparent interest in proactively implementing its own policies, in light of the Commission’s decision. Further, the applicant noted that employer must comply with WHS legislation in any event.
[10] In response to the position of the respondent parties, which I set out below, Ms LP contends that:
● Their submissions outline no concrete steps that they have taken or propose to take to actually implement their own bullying policy in light of the decision;
● The employer has not outlined a risk management process regarding the applicant’s return to work;
● Further there has been no acknowledgement of the decision or its content, and no action of any kind has been taken by the workplace since the decision, to remedy any of the complained of behaviours. For example, confusion still exists about what responsibilities a supervisor has and this will remain the case until the supervisors responsibilities are clearly outlined to staff, such as by the provision of a position description;
● No basis has been provided by the employer as to why they should not be bound by an order to implement their own policies and abide by the relevant legislation;
● No basis has been provided as to why a code of conduct should not be displayed on the solicitor’s website;
● Mr JP was at all times, acting as the manager and principle while the various repeated unreasonable conduct occurred and is still acting as the manager and principal; and
● Orders are necessary to stop the continuance of the range of unreasonable behaviours identified in the November decision at para [184], and also any other unreasonable conduct.
[11] Ms LP also indicated that she had not failed to attend the appointment with the medical specialist to assess her fitness to return to work, but rather had given notice that she would be unable to attend until after 4 February 2016, and that the employer had not forwarded a copy of payslips and a statement to confirm annual leave entitlements as sought.
2.2 The respondent parties
[12] The respondent parties opposed the making of any orders in this matter and contended as follows:
● The applicant seeks a number of orders which are beyond the scope of section 789FF of the FW Act and therefore the powers of the FWC to make such orders;
● The applicant seeks a number of broad orders, some in the nature of penalties seemingly designed to embarrass the respondent parties, such as publication on the website, in circumstances where the applicant has not established any connection with the findings which have been made by the Commission, nor why the orders sought will diminish the risk of ongoing bullying; and
● The applicant appears to be pressing for a wish list of general anti-bullying orders based on her broader allegations that have been largely rejected by the Commission.
[13] The respondent parties further contend that it was implicit that s.789FF(1) of the FW Act operates such that the risk of continued bullying behaviour must be in the context of the substantiated bullying behaviour. In that regard, they submitted that the Commission had found a limited number of elements of unreasonable conduct that were “on fine balance” sufficient to meet the requirements of s.789FD of the FW Act.
[14] Accordingly, they contend, only these elements of substantiated unreasonable conduct can be considered in assessing whether or not there is an ongoing risk that the applicant will continue to be subject to such conduct, therefore enlivening the power to make orders pursuant to section 789FF of the FW Act.
[15] The respondent parties also confirmed a list of the actions that had been implemented following the original proceedings connected with this matter, including the relevant parts of the recommendations that were previously issued by the Commission. Further, there rely upon changes in personnel and other circumstances relevant to the limited unreasonable conduct that was found.
[16] The respondent parties contend that in the context of each substantiated element of unreasonable behaviour, given the steps already taken by the Respondent and/or because of the particular context no longer operates, there is no risk of ongoing bullying behaviour and therefore no orders are warranted in the circumstances.
[17] Further, if the FWC satisfies itself that either, there was no bullying conduct evidenced by someone towards the applicant, or, if there was, there is no risk of ongoing bullying behaviour, the respondent parties contend that the Commission does not have the statutory power/discretion to make further orders given that such findings are a pre-condition to making orders.
[18] The respondent parties also advised that the applicant has been cleared to return to work by her GP but the Respondent has requested a clearance from her specialist, given the earlier advice from that specialist that the applicant was unfit for work. They asserted that the applicant had failed to attend an appointment in early January 2016 to see the medical specialist and has indicated she was not available to do so until February 2016. In that light, they advanced their submissions on the basis that the applicant expected to obtain such a clearance. However, should the applicant be permanently unfit to return to work with the employer, this would further support the submission that there is no risk of ongoing unreasonable conduct such as to allow an order to be made under section 789FF of the FW Act.
3. The power and discretion to make orders
[19] Section 789FF of the FW Act 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.
(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
(d) any matters that the FWC considers relevant.”
[20] The Fair Work Amendment Bill 2013 Revised Explanatory Memorandum explained the provisions as follows:
“New section 789FF – FWC may make orders to stop bullying
119. New subsection 789FF(1) empowers the FWC to make any order it considers appropriate to prevent a worker from being bullied at work by an individual or group of individuals. Before an order can be made, a worker must have made an application to the FWC under new section 789FC and the FWC must be satisfied that the worker has been bullied at work by an individual or group of individuals. There must also be a risk that the worker will continue to be bullied at work by the individual or group. Orders will not necessarily be limited or apply only to the employer of the worker who is bullied, but could also apply to others, such as co-workers and visitors to the workplace. Orders could be based on behaviour such as threats made outside the workplace, if the threats relate to work.
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 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:
122. New subsection 789FF(2) provides that, when considering the terms of the order, the FWC can take into account any factors that it considers relevant, but must have regard to the following (to the extent that the FWC is aware):
123. These factors may be used by the FWC to frame the order in a way that has regard to compliance action being taken by the employer or a health and safety regulator or another body, and to ensure consistency with those actions.”
[21] Having regard to the provisions of the FW Act, there are two prerequisites to the making of orders in matters of this kind. Firstly, a finding that the worker has been bullied at work by an individual or a group of individuals; and secondly, that there is a risk that the worker will continue to be bullied at work by the individual or group concerned.
[22] Accordingly, where there is no risk that the applicant worker will continue to be bullied at work by the individual or group concerned, there is no prospect that the s.789FC application can succeed.2 Equally, where such a risk is found, the Commission may make an order preventing the worker from being further bullied by that individual or group. This means that any orders must be directed towards the prevention of relevant future unreasonable conduct and be informed by, but not necessarily limited to, the prior unreasonable conduct as found. However, any orders must deal with the actual future risk, based upon appropriate findings, and having regard to the considerations established by s.789FF(2) of the FW Act.
[23] Subject to the above, and the constraint that an order cannot be made requiring payment of a pecuniary amount, the making of an order is a matter of discretion to be exercised judicially in the circumstances of each case.
[24] Accordingly, the power of the Commission 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 normal working relationships to resume in a mutually safe and productive manner.
[25] Orders made in this jurisdiction are enforceable by the Courts as a civil remedy provision. 3 This means that orders should not be made lightly and where they are made, they should be expressed in such a manner that clearly establishes enforceable obligations upon relevant identified parties.
4. Should orders be made in this matter?
[26] It is therefore appropriate to consider the findings made in the November decision and the present circumstances within the workplace in order to assess the relevant risks of future unreasonable behaviour.
[27] In the November decision, I found as follows:
“[184] I have found that there were some elements of potentially relevant unreasonable conduct. These include:
● The conduct of the former Head Chef and the nature of the initial response by Mr JP and others on behalf of the employer;
● The initial absence of measures established by management in the workplace to set and enforce appropriate standards of conduct;
● The conduct of the staff meeting in June 2014 and the absence of a proper follow-up given the nature of the issues raised;
● The exclusion (non-invitation) of the applicant from the November 2014 staff meeting;
● The initial requests associated with the form of the required medical clearance;
● The lack of clarity about supervision and management responsibilities in the workplace given the (appropriate) introduction of more formal polices and the intention to discipline the applicant (and others) for breaches of those policies; and
● Some elements of the disciplinary process, particularly in the early stages, but not the process itself.
[185] Without detracting from the comprehensive discussion outlined earlier in this decision, it is necessary for the Commission to determine whether there was repeated behaviour, when viewed objectively, which represented repeated unreasonable conduct that created a risk to health and safety. In making my various findings, I also take into account the qualification that reasonable management action taken in a reasonable manner does not constitute bullying conduct.”
[28] As outlined earlier in this decision, the finding of bullying conduct was made on fine balance and predominately related to events that pre-dated the response made by the employer to the earlier recommendations of the Commission and this application.
[29] I also considered and rejected other behaviour that Ms LP claimed was unreasonable conduct for the purposes of s.789FD of the FW Act including:
● The alleged denial of an induction for the applicant;
● The alleged failure to conduct a proper independent investigation into the complaints made;
● The final form of the medical clearance sought by the employer;
● The completion of the online Responsible Service of Alcohol certification application on behalf of the applicant;
● The requirement for the applicant to work “extra hours” upon her return to work in late 2014/early 2015 and related employment contract conditions;
● The complaint to the FWO and the nature of apology made by the Payroll Clerk;
● The employee letters of complaint against the applicant being “coerced” by management;
● Directions issued to the applicant by the former Supervisor on 20 October 2014 in relation to the service of wine;
● The response to an incident with a member of the public;
● The incident with the Accounts Clerk about wearing open-toed footwear;
● Disciplinary action taken – include the initial warning by the former Supervisor on 15 September 2014 and the subsequent conduct by JP and NL; and
● The alleged unreasonable failure to take reasonable steps to eliminate or minimise the risk of bullying – including the alleged delay in implementing the recommendations, and failure to enact the recommendations and policies in practice.
[30] Without detracting from the detailed findings made in relation to these matters in the November decision, the findings made about the overall response of the employer to the earlier recommendations of the Commission are apposite. I found:
“[177] The applicant alleges that the employer has failed to take reasonable steps to eliminate or minimise the risk of bullying in the workplace. Furthermore, the employer has failed to use appropriate resources or processes to eliminate or minimise the risks. Specific examples of this include what was described as being the employer’s delay in implementing the recommendations of the Commission including the development of a policy that outlined the appropriate workplace behaviour and grievance procedure.
[178] In this regard, I note that the recommendations were issued in early November and the policy was given to staff in early February 2015. The policies were given to staff at the same time as they attend a workplace bullying training session. The policies were comprehensive and dealt with a series of related standards, policies and human resources arrangements, many for the first time. The decision to do a comprehensive job and to introduce these along with specific training was appropriate and I do not consider that the delay in doing so was unreasonable.
[179] In addition, the applicant contends that the employer failed to enact recommendation two, which related to implementing the above policies and monitoring compliance, as the employer did not counsel the persons named in the 2014 application. Moreover, the employer did not take any steps to carry out recommendations 4, 6 or 7. Those concerns being that the former Head Chef did not acknowledge his conduct, a review of the warnings issued to the applicant has not occurred, and a written understanding has not been developed and signed by all parties.
[180] Recommendation two was concerned with the implementation of the new polices and the lack of “counselling” about the 2014 issues was not in general terms unreasonable because, other than with respect to the issues associated with the former Head Chef, the entire concept was for the parties to concentrate on future conduct and arrangements.
[181] The recommendations concerning the former Head Chef were designed such that acceptance of the recommendations would in effect confirm the necessary mutual acknowledgements. No formal process was required. It is however not clear whether the former Head Chef ever provided a response. The approach in relation to the warnings that had been given to the applicant was not that they be immediately reviewed. Rather, that the applicant be given an opportunity to record her version of events and that they be reviewed over time. Subsequent events over took these elements.
[182] I also note that in the absence of a successful return to the workplace and the fact that new issues arose, the parties did not develop and agree upon a comprehensive written understanding to formally resolve the 2014 application. All parties bear some responsibility for that outcome.”
[31] In addition, I made no adverse findings about the decision to involve NP or his firm, given the unique circumstances operating at that time, or about his conduct.
[32] In terms of changes in the workplace, both the former Head Chef and the former Supervisor are no longer in the business and are not therefore part of the group of (employees) for present purposes. As outlined above, the employer has also introduced a significant policy regime and other administrative changes. Further, in response to the November decision, the employer has now also adjusted the rosters to formally nominate the relevant supervisor for each work shift.
[33] I note that although Ms LP criticises the practical application of those new policies, the fact remains that she has hardly been in the workplace in recent times due to her illness. The issues associated with her return to work have also become conflated with the workers compensation claim and the medical clearance. This does not mean that returning to the workplace will be easy for the applicant, or the other remaining parties, however there is little material to support the notion that the polices have not been applied in practice.
[34] I turn now to the considerations established by s.789FF(2) of the FW Act. These matters must be taken into account and considered in relation to whether any orders should be made and the terms of any such orders. 4
S.789FF(2)(a) - Final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body
[35] There has been no (other) completed investigation of the matters directly relevant to this application by another person or body and there are accordingly no final or interim outcomes.
S.789FF(2)(b) - Any procedure available to the worker to resolve grievances or disputes
[36] There was no accessible procedure for Ms LP to advance or resolve her grievances within the workplace at the time that most of the relevant conduct took place. Although the new policy regime has been in place during the time of this application, and such provides an appropriate grievance resolution process, the existence of this application and the associated proceedings have, in effect, meant that that procedure was not applied to any concerns raised by the applicant.
[37] The fact that there is now a relevant and appropriate procedure within the workplace to resolve future concerns, is a relevant consideration militating against orders being made in this matter.
S.789FF(2)(c) - Any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes
[38] For reasons outlined above, there are no final or interim outcomes as contemplated by this consideration.
S.789FF(2)(d) - Any matters that the Commission considers relevant
[39] Without limiting the matters that might be considered in this context, the circumstances of the parties, the history and nature of the employment (or contractual relationships) and the utility of any orders that might be made would be relevant considerations.
[40] In terms of the nature of the orders sought by Ms LP, I would observe that they are not always responsive to the findings of the November decision in that they appear to be based upon the original allegations made rather than being justified in the context of the findings of the Commission. Further, there is an element of wanting to embarrass some of the parties.
[41] I do however note that Ms LP has proposed to make a formal apology to one of the other employees in circumstances where I found the applicant’s own conduct to be less than appropriate. That approach stands to the credit of Ms LP.
[42] The parties are already required to abide by the WHS Act and there are avenues to readily report and enforce those obligations. In these circumstances, there would not appear to be any utility in simply repeating those obligations in any order of this nature.
[43] Given the nature of the business and the training that has already been provided to all of the staff, an order for further compulsory training is not warranted. In light of the policies adopted by the employer it is the reasonable expectation of the Commission that further training in relation to appropriate workplace conduct and the anti-bullying procedures will be conducted by the employer for any new staff and refresher training, as appropriate.
[44] If this does not occur, there is now an avenue for Ms LP, or any other employee, to raise the issue through the workplace grievance procedure.
[45] I do not discount the possibility that the Commission could consider including provisions dealing with leave taken as part of an order in this jurisdiction however the broader implications of the FW Act, including through the National Employment Standards - which deals with the minimum entitlements obligation of the parties in that regard, would need to be fully considered. Any such order could also not involve requiring the payment of a pecuniary amount. I have not heard argument about this matter, and in this case, I do not consider that an order of this nature would, in any event, be warranted given my findings and the conflation with Ms LP’s workers compensation claim.
[46] Costs cannot be awarded as part of an anti-bullying order as they are not contemplated by the scheme of this Part of the Act. Costs, in the present context and more generally, are however dealt with in s.611 of the FW Act as follows:
“611 Costs
(1) A person must bear the person’s own costs in relation to a matter before the FWC.
(2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if:
(a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or
(b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success.
Note: The FWC can also order costs under sections 376, 400A, 401 and 780.
(3) A person to whom an order for costs applies must not contravene a term of the order.
Note: This subsection is a civil remedy provision (see Part 4-1).”
[47] There has been no application for costs made by Ms LP and given the findings made in this matter it would be difficult to see how the grounds set out in s.611(2) would apply to the respondent parties.
[48] There are two elements of the orders proposed by Ms LP that I have favourably considered. These relate to the desirability of further formalising the position descriptions of the staff within the restaurant, and the concept of displaying material in the workplace reminding parties of their obligations to treat each other with respect (i.e. not to bully one another).
[49] These are sound proposals and I would recommend that these be adopted. However, I am not persuaded that they should be included in orders in this matter given the overall circumstances and the fact that, although being sound, these elements are not sufficiently connected to any risk of further bullying so as to warrant the making of orders in that regard.
5. Conclusions
[50] In many, if not most cases, where a finding of bullying conduct is made and there is some future risk, preventative orders would be expected to follow. Such orders would, in appropriate cases, establish the appropriate basis for future mutually safe and constructive relationships.
[51] In this case, given the history of this particular matter, the extent of positive measures that the employer has subsequently put into place as a result of Ms LP’s applications, and my understanding of the workplace and the relationships that has developed from hearing this matter, I do not consider that the making of orders at this time would be conducive to the constructive resumption of working relationships.
[52] Accordingly, in all of the circumstances I am not persuaded that I should make orders in this particular matter. This arises from the unique context in which the findings of bullying conduct were made, and the nature of those findings, and the present context in which the Commission has been invited to make the orders.
[53] Subject to the expected medical clearance, I would encourage Ms LP to resume her active employment as soon as possible and to recognise that her applications have directly led to positive changes in the workplace. I would also encourage the employer to resume normal and direct supervisory and reporting arrangements with the applicant as part of that return to work.
[54] This file will be closed.
COMMISSIONER
Conference details:
2015
By Telephone
November 23
Written submissions:
Ms LP:
20 December 2015
29 January 2016.
Respondent parties:
22 January 2016.
1 Written submission from Ms LP (with identifying references removed).
2 See the discussion of the earlier authorities in Bassanese [2015] FWC 3515 and the most recent decision of the Full bench in Atkinson v Killarney Properties Pty Ltd [2015] FWCFB 6503.
3 S.789FG of the FW Act. This means that the person affected can apply to a Court for an order for a financial penalty against the alleged wrong-doer, or any other order the Court considers appropriate such as an injunction.
4 See Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 for a discussion of the implications of taking statutory considerations into account.
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