DECISION

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

N.B (Anonymised)
(AB2019/235)

Application for an order to stop bullying – jurisdiction – whether alleged conduct capable of meeting the requirement of being bullied at work – reasonable management action – application dismissed.

1. Background

[1] On 3 May 2019 Ms N.B. (the Applicant) made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the Act).

[2] I note that the Applicant had, earlier this year, previously made an application under s.372 of the Act alleging contraventions to the general protections provisions under the Act not involving dismissal during the course of her employment. I attempted to conciliate the general protections matter between the parties but was unsuccessful doing so. That file was subsequently closed at the Fair Work Commission (FWC) and the Applicant was at liberty to press her claim at the Federal Circuit Court.

[3] The Applicant considered her circumstances and ultimately lodged the present application largely in the same terms as those contained within her general protections application.

[4] The present application alleges bullying behaviour by an employee, Ms D., in a workplace conducted by SECUREclean (SC) in Queensland.

[5] The Applicant was employed as a cleaner by SC at a shopping centre on the Gold Coast from on or about 24 September 2018.

[6] Ms D. is a business manager for SC and is based at SC’s head office in Queensland.

[7] The Applicant submitted that from early on in her employment she raised a number of concerns with management regarding health and safety concerns, raised complaints that she and other staff were not receiving sufficient training and that she was feeling belittled and intimidated by another colleague, Ms G.

[8] The Applicant then submitted that from the period commencing 11 December 2018 to 17 February 2019 (Applicant’s last day at work) she was bullied at work and provided a number of incidents which she alleges took place to support her claim.

[9] The Respondent parties deny that any action taken by them was bullying, and submitted a jurisdictional objection under section 789FD(2) of the Act, submitting that any alleged ‘bullying’ behaviour undertaken by the employer related to reasonable management action carried out in a reasonable manner.

[10] The Commission held a preliminary conference on 28 May 2019. Arising from the conference, directions for the filing of submissions and materials were issued in the following context as confirmed with all parties:

“(a) N.B. (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) What is disputed by SC is whether:

•  the conduct relied upon was repeated unreasonable behaviour that created a risk to health and safety;

•  the behaviour was not reasonable management action taken in a reasonable manner; and

•  there is a risk that the applicant will continue to be bullied at work by Ms D. (the person named) cited in the application; and as a result;

whether an order can and should be made in this matter.

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.” 1

[11] The parties subsequently lodged written submissions pursuant to the directions issued and a date for a determinative conference was set down for Thursday 11 July 2019, commencing at 10am over the telephone.

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 she was at work in a constitutionally-covered business.

[15] The immediate issue to be determined is whether the conduct as alleged by the Applicant is capable of constituting bullying conduct within the meaning of the Act given the objection raised that the behaviour of the employer was reasonable management action taken in a reasonable manner.
[16] This aspect of the definition in s.789FD was discussed in S.B. 2 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] Section 789FD(2) of the Act is not so much an “exclusion” but a qualification which reinforces that bullying conduct must of itself be unreasonable. It also emphasises the right of management to take reasonable management action in the workplace. In its application, the provision comprises three elements:

•  the behaviour (being relied upon as bullying conduct) must be management action;

•  it must be reasonable for the management action to have been taken; and

•  the management action must have been carried out in a manner that is reasonable.

[18] The Explanatory Memorandum 3 refers to management decision and decisions about how work is to be carried out. This suggests that the term may be required to be given a wide meaning under s.789FD(2) and that the Legislature intended everyday actions to effectively direct and control the way work is carried out to be covered by the qualification.

[19] Determining whether management action is reasonable requires an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time. Without limiting that assessment, the considerations might include:

•  the circumstances that led to and created the need for the management action to be taken;

•  the circumstances while the management action was being taken; and

•  the consequences that flowed from the management action. 4

[20] The specific ‘attributes and circumstances’ of the situation including the emotional state and psychological health of the worker involved may also be relevant. 5

[21] The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’. 6 In general terms this is likely to mean that:

•  management actions do not need to be perfect or ideal to be considered reasonable;

•  a course of action may still be ‘reasonable action’ even if particular steps are not;

•  to be considered reasonable, the action must also be lawful and not be ‘irrational, absurd or ridiculous’; 7

•  any ‘unreasonableness’ must arise from the actual management action in question, rather than the applicant’s perception of it; and

•  consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances. 8

[22] For the circumstances in s.789FD(2) of the Act to apply, the management action must also be carried out in a ‘reasonable manner’. Consistent with the approach above, what is ‘reasonable’ is a question of fact and the test is an objective one.

[23] Whether the management action was taken in a reasonable manner may depend on the action, the facts and circumstances giving rise to the requirement for action, the way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters. 9

[24] All of the requirements of s.789FD(1) must be read together. In terms of the issues in dispute in this case, this means that the Commission must consider whether an individual (Ms. D.) has repeatedly behaved unreasonably towards the Applicant whilst the Applicant was at work and whether that behaviour has created a risk to health and safety. A positive finding on each of these elements, and if appropriate, a finding that the circumstances contemplated in s.789FD(2) of the Act do not apply to the behaviour, must be made for the Commission to find that the applicant worker has been bullied at work.

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

3.1 Conduct between 24 September 2018 – 11 December 2018

[25] It is generally agreed between the parties that the Applicant raised a number of concerns verbally with Ms D. about her employment, including about the performance and conduct of other staff.

[26] On the evidence presented to the Commission, I am satisfied that there was a conversation with the Applicant and Ms D. about these matters. There is a factual disagreement between the parties as to whether Ms D. asked the Applicant to put these concerns in writing. In the absence of documentary evidence from this period, I am satisfied that this verbal conversation substantially addressed the concerns held by the Applicant from this period.

[27] The fact that these concerns were not subsequently escalated in writing or followed up by the Applicant with the Employer indicates to me that the Applicant, whilst disappointed with certain matters in the workplace originally, did not elect to document these matters or formalise them. I have concluded from this that they were largely, if not all, addressed in the conversation had between the Applicant and Ms D. In any event, the concerns were dealt with consistently with how they were raised by the Applicant with Ms D., that is, verbally. There is no positive obligation on managers or employer more broadly to formalise every discussion that employees have with them. To impose such an obligation is unnecessary and may actually preclude a successful resolution from being achieved.

3.2 Conduct on 13 December 2018

[28] On 13 December 2018, the Applicant alleged that she was excluded from joining a Christmas lunch due to a heavy workload on this day. On the evidence before me, I cannot conclude that the Employer took unreasonable action against the Applicant by requesting that the Applicant take a break later that day, thereby missing the lunch. On certain occasions, circumstances and rosters will change in workplaces consistent with workload allocation requirements. This incident appears isolated and not systemic. I am satisfied that this conduct does not satisfy the statutory requirements so as to say that the Applicant was bullied at work.

[29] On 13 December 2018, Ms D. received an email from a colleague of the Applicant complaining about the Applicant’s conduct/behaviour. The allegations in this complaint were not substantiated by the complainant and, as such, no action was taken by SC in relation to this complaint. This event has no probative value with respect to this application.

3.3 Conduct on 30 December 2018 and 6 January 2019

[30] On 30 December 2018 the Applicant submitted that she applied for leave and that this leave was rejected by her supervisor, Ms. G., who the Applicant alleged also said that the Applicant was “… not allowed any public holidays off …” and further that “… [the Applicant] had to work all of them [referring to public holidays] …” The Applicant submitted that she enquired with Fair Work with respect to Ms. G’s claim regarding her entitlement to take leave on public holidays.

[31] On 6 January 2019 the Applicant followed this up with Ms D. by way of email wherein she said the following:

“Hey X

Just curious I put in for leave for over Australia day etc, but have been told I have to work Australia Day and Im not allowed to take leave on public holidays at all, I just want to clarify with you into why we are unable to have leave where a public holiday may fall with-in that window of leave, waiting on fair work to get back in touch with me as well any information would be great, don’t want to cause any conflict but just want to know …”

[32] The Applicant alleged in her submission that Ms G. had denied her leave on a public holiday (assumed on the submissions to be around Christmas time) and said words to the effect of: “you are not allowed to take public holidays off …”

[33] As to whether or not this conversation occurred is a matter of contention between the parties. The Applicant alleged that it did occur. The Employer is silent on this incident in its submissions and in the witness statement of Ms D. Without Ms G. providing evidence on whether or not this conversation occurred, it is difficult to know precisely what transpired between the Applicant and Ms G. The Applicant’s evidence of this event is therefore taken on face value, without corroboration. It was apparent that the Applicant was confused with the Employer’s policy/position with respect to leave being taken on public holidays after this conversation with Ms G. To suggest that the Applicant would not have been entitled to take annual leave on public holidays may be a general company preference, but this was poorly and clumsily communicated to the Applicant if this was the case; that is, if the Applicant’s version of the conversation is to be believed.

[34] Whether this amounted to ‘bullying’ conduct under the statutory framework is not able to be determined on the evidence before me, especially when, in any event, the Applicant followed up on her confusion seeking clarification from Ms D. regarding the company’s policy on taking leave on public holidays and Ms D. responded to the Applicant clarifying this policy. At its highest at the time, the Applicant indicated confusion and sought clarification from Fair Work and Ms D.

[35] On the evidence before me, it was not brought to Ms D.’s attention to the time about Ms. G.’s alleged ‘bullying’ conduct or words, or how those made the Applicant feel at the time. This only came afterwards in the Applicant’s applications to the Fair Work Commission alleging contraventions to the Act and subsequently in this application.

[36] Ms D.’s response to the Applicant – by email on 6 January 2019, clarifying the policy of the company regarding the taking of leave on public holidays, by email on 8 January 2019, approving the Applicant’s leave for Australia Day, and subsequently a meeting between the Applicant and Ms D. on 10 January 2019 settling any confusion – at least seemed to have allayed the Applicant’s concerns and understanding with respect to this issue. I am minded to accept the Employer’s submission that following this feedback process, the Applicant’s concerns were addressed and this leave matter was closed. Whilst the argument could be raised that the Employer communicated and handled the situation ineptly, it does not suggest the conduct exposed amounted to bullying with respect to the Act.

3.4 Conduct on 8 January 2019

[37] On 8 January 2019 the Applicant alleged that Ms D. addressed her on the shop floor in front of Ms G. asking which dates she wanted to have off (purportedly referring to her request for leave on Australia Day). When cross-examined with respect to this conversation, Ms D. confirmed that she had this conversation in the presence of Ms G. on the shop floor, but did so because Ms. G was the Applicant’s manager and needed to know what dates that the Applicant wished to have leave on. This evidence was credible. The Applicant was not able to prove that Ms D. had this conversation in front of Ms G. and that in this some way causally indicated to Ms G. that the Applicant had raised a complaint about Ms G. to Ms D. This submission is without basis and no finding can be made that this conduct amounted to bullying.

3.5 Conduct on 9 January 2019

[38] On 9 January 2019 the Applicant alleged that Ms G. removed the Applicant from her assigned area and requested she work elsewhere in the mall. On the evidence received, I cannot make any other determination that this request was anything other than reasonable management action and cannot constitute bullying in accordance with the Act.

3.6 Respondent’s account of events between 11 January 2019 and 18 February 2019

[39] On 11 January 2019, Ms D. received an email from the Ms G., which detailed a written complaint against the Applicant. The email contained a complaint from a fellow employee of the SC, who worked closely with the Applicant.

[40] The crux of the written complaint against the Applicant pertained to a number of employees of SC failing to respond to a spillage at the shopping centre site, because the Applicant required assistance to locate and contact her lost children at the shopping complex. As a result of this complaint, Ms D. on behalf of SC considered it necessary to detail a Letter of Allegation to the Applicant, setting out its concerns.

[41] On or about 14 January 2019 Ms. D telephoned the Applicant to advise she will be receiving a Letter of Allegation and that she will be required to respond.

[42] On or about 16 January 2019, the Applicant sent Ms D. an email describing an incident that allegedly occurred between the Applicant and Ms G., which occurred earlier that day. The contents of the email was annexed as Attachment 5 to Ms D.’s witness statement and states as follows:

“Hey sorry to bother you but Im honestly so stressed out with all the dramas and yip today just seriously sent me over , as you know Im a pretty strong willed person , and happy to do anything I removed myself from floor to breathe for a minute, the miss communication is just getting beyond a joke, I was told once I question about with me getting training as I was requested to work on docks on Sunday, to have break at 14.00pm,so training could be given today but I had replied with how will that work as that would only leave Betty on floor for 30mins while Jorge covered Ricks break then had his own, Bernie said she would send Ange at 14.00pm , 14,10pm came about have always in any job known you don’t leave for break until your reliever is present 14.10pm came over radio had I gone on break my reply was no not yet, when demanded to go now, and I didn’t reply due to me attending to a customer whom Im not going to tell sorry Im on a break, ….. So helped them with there enquiry, when I went to put cloths away and finish doing what I was doing rubbish etc and call break in it was 14.21, to my knowledge I would return to floor at 14.50 but demanded I was back at dock 2 by 14.40, then when I replied with I wasn’t due back till 14.50, so I ended up returning my bag to locker earlier, as Levonne said she would now meet me at Dock 4, I checked time it was 14.45pm I got told That Bernie will be pissed off with me because I didn’t go at 14.00pm, for Break and got ripped into, yes I was upset because this week has been full of dramas with people playing chinese whispers , and hey another person stating Bernie is going to be even more pissed off with me for not going on break obviously since requesting leave and being now approved Ive been a target breaks never a issue now started to see how a few others have been feeling the last few months I don’t know but have actually felt really belittled in a sense.

Just feeling really frustrated with all the miss communication, conflicting information, talking behind backs.

Kind Regards… ”

[43] Ms D. contends she spoke to the Applicant about the email “shortly thereafter” and asked whether she wanted to lodge a formal complaint against Ms G. in relation to the matter contained within said email. Ms D. alleges the Applicant did not want to lodge a formal complaint or take further action; however, the Employer spoke to Ms G. and other potential witnesses regarding the Applicant’s concerns. Ms. G. was later cautioned regarding appropriate workplace conduct. It is noted, despite the concerns of the Applicant, she was provided with sufficient opportunity to respond to her work place grievances, however refrained from doing so. Consequently, the handling of this incident can only portray a favourable picture of the Employer’s management action in this instance.

[44] On 18 January 2019, the Employer issued the Applicant a Letter of Allegation in relation to her conduct between 8 and 10 January 2019. The Applicant was required to respond by 19 January 2019 and a meeting was convened on 21 January 2019 to further discuss the matters. The allegations that were required to be addressed included as follows:

“1. On Tuesday 8 January 2019 while working in your role at [the shopping centre], it is alleged you have brought your children to work and allowed them to be onsite in the Food Court and various other locations for the entirety of your shift.

2. Further to Allegation 1 it is also alleged you have been absent from your designated work area for approx. 30 minutes in order to locate your children

3. On Wednesday 9 January 2019 it is alleged you have brought your children to work and allowed them to be onsite in the Food Court and various other location for the entirety of your shift.

4. On Thursday 10 January 2019 it is alleged you have brought your children to work and allowed them to be onsite in the Food Court and various other locations for the entirety of your shift.

5. On Monday 7 January 2019 it is alleged you have taken a 1 hour lunch break instead of the allocated 30-minute lunch break

6. On Tuesday 8 January 2019 it is alleged you have taken approximately 30 minutes break instead of the allocated 10-minute break”

[45] Despite the lack of procedural fairness on behalf of the Employer in allowing the Applicant to respond, on 19 January 2019 the Applicant responded to the Letter of Allegation. The scheduled meeting for 21 January 2019 was adjourned by the Employer in order to review the Applicant’s response to the matters raised in the Letter of Allegation.

[46] During the course of the Employer reviewing the issues contained within Letter of Allegation, additional concerns arose relating to the Applicant’s alleged conduct at work. It is alleged by Ms D. that many fellow employees expressed workplace concerns regarding the Applicant taking longer breaks, not working rostered hours and bringing her children to work. The Employer asked for the aggrieved employees to voluntarily place their concerns in writing to which seven (7) of who obliged.

[47] On 13 February 2019, a second Letter of Allegation was sent to the Applicant, outlining concerns mentioned above. Again, the Employer required a written response to the Letter of Allegation and provided a deadline until 18 February 2019 and a proposed meeting was to be convened on 22 February 2019. Evidently, the Employer afforded a more favourable timeframe for completion of the Applicant’s response. The allegations which required a response is as follows:

“1. On 30 October 2018 while working in your role at [the shopping centre], it is alleged you have arrived late for your shift and did not reflect this on the timesheet

2. On 4 November 2018 it is alleged you have arrived late for your shift and did not reflect this on the timesheet

3. On 7 November 2018 it is alleged you have arrived late for your shift and did not reflect this on your timesheet

4. On 13 November 2018 it is alleged you have arrived late for your shift and did not reflect this on the timesheet

5. On 14 November 2018 it is alleged you have taken a 25-minute break from approximately 11:50am-12:15pm instead of the allocated 10-minute break.

6. On 14 November 2018 it is alleged you have taken a 1-hour break from approximately 2:00pm and 3:05pm instead of the allocated 30-minute break

7. On 2 December 2018 it is alleged you have arrived late for your shift and did not reflect this on your timesheet

8. On 7 January 2019 it is alleged you have brought your children to work and allowed them to be onsite in the Food Court and various other locations for the entirety of your shift.

9. On 7 January 2019 it is alleged you have taken a 1-hour lunch break from approximately 2:00pm-3:05pm instead of the allocated 30-minute lunch break

10. On 8 January 2019 it is alleged you have brought your children to work and allowed them to be onsite in the Food Court and various other locations for the entirety of your shift.

11. On January 2019, it is alleged you have been absent from your designated work area for approx. 30 minutes in order to locate your children and requested other staff members to assisting in locating your children”.

[48] As to whether the incidents mentioned in the second Letter of Allegation occurred or not is a matter required to be determined. It would appear a portion of the alleged conduct on the part of the Applicant arriving late for shifts, taking extended breaks and bringing her children to work may weigh favourably on the part of the Employer, given the extensive list of corroborating statements by fellow employees. Despite this, it is questionable as to why the Applicant was not made aware of her alleged misconduct in relation to the incidents prior to the events stated in the first Letter of Allegation. Whilst not determinative, this may raise questions of credibility on the part of the Employer.

[49] On 17 February, the Applicant submitted her response to the second Letter of Allegation and informed the Employer she will not be attending the scheduled meeting on 22 February 2019 due to a health related issue. Pursuant to an email dated 20 February 2019, the Employer informed the Applicant the investigation into her alleged misconduct was to be postponed until she was able to return to work.

[50] WorkCover Queensland notified the Employer on 22 February 2019 that the Applicant had lodged a Workers’ Compensation Claim based on an incident that occurred on 1 January 2019, as a result of being denied leave on a public holiday. The Applicant claimed she suffered a psychological injury caused workplace bullying and this resulted in depression. WorkCover Queensland rejected the claim on 19 March 2019. Based on the evidence led by the Employer, it seems apparent the issue regarding leave on a public holiday was resolved promptly. Whilst the Applicant was initially denied leave by Ms G., Ms D. settled this issue with the Applicant and approved the requested leave. It is difficult to reconcile the behaviour of Ms G. as tantamount to bullying in accordance with the Act. Again, the statements made and language utilised during this incident would be a matter of contention between the parties involved. However, as mentioned, Ms. D presented the Applicant an opportunity to press a formal workplace complaint against Ms G. in relation to being denied leave and refrained from undertaking such process. Despite the Applicant’s unfortunate psychological state, it would appear the absence of such complaint suggests behaviour of Ms G. cannot be substantiated and would not amount to bullying without contemporaneous evidence.

[51] On 29 March 2019, the Applicant filed a General Protections application, alleging the Employer had taken adverse action by undertaking a workplace investigation because the Applicant exercised a workplace right by requesting leave and questioning her ability to take leave. The General Protections application did not progress.

[52] The Applicant has been on unpaid leave since 18 February 2019, as she has been unfit for duty. The Applicant has provided medical certificates to validly support her medical condition and remains in the Respondent’s employ.

4. Conclusions and order

[53] The Commission is satisfied that the Applicant is a worker in accordance with s.789FC (2) of the Act and consequently has standing to make an application pursuant to s.789FF of the Act to stop bullying.

[54] As a result of the above findings, the Commission is not open to the Applicant’s version of events to find that the Applicant was bullied at work within the particular meaning of the Act.

[55] For the reasons set out above, I find that the actions taken by the Employer, that the Applicant alleged to have been bullying conduct, were in fact reasonable management action. As such the qualification of bullying conduct provided by s.789FD(2) applies so as to preclude a finding that the Applicant was bullied at work.

[56] 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. 10

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR711007>

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

 2   [2014] FWC 2104.

 3   At par 111 and 112.

 4   Georges and Telstra Corporation Limited [2009] AATA 731 at [23].

 5   Ibid.

 6   Bropho v Human Rights & Equal Opportunity Commission (2004) 135 FCR 105 at [79].

 7   See Von Stieglitz and Comcare [2010] AATA 263 at [67].

 8   See the discussion in Department of Education & Training v Sinclair [2005] NSWCA 465.

 9   Keen v Workers Rehabilitation & Compensation Corporation (1998) 71 SASR 42.

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