DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Alemtsehay Mekuria
v
MECCA Brands Pty Ltd t/a Mecca Cosmetica; Debra Kelso; Christine Mantacas; Grace Chiruvu
(C2018/6937)

Appeal against decision [2018] FWC 6486 of Commissioner Lee at Melbourne on 20 November 2018 in matter number AB2018/124.

Introduction

[1] Ms Alemtsehay Mekuria has applied for permission to appeal against a decision of Commissioner Lee issued on 20 November 2018 1 (Decision), in which the Commissioner dismissed Ms Mekuria’s application made pursuant to s 789FC of the Fair Work Act 2009 (FW Act) for anti-bullying orders against MECCA Brands Pty Ltd t/a Mecca Cosmetica (Mecca) and Ms Debra Kelso, Ms Christine Mantacas and Ms Grace Chiruvu. Ms Mekuria’s application was listed for hearing before us on 18 February 2019, and she was directed to file a three-page outline of submissions by 22 January 2019. The position that confronted us at the hearing on 18 February 2019 was, in summary, as follows:

(1) Ms Mekuria’s notice of appeal did not contain any grounds of appeal;

(2) Ms Mekuria had not filed any outline of submissions as she had been directed to do, notwithstanding that two extensions of time to do so had been granted;

(3) Ms Mekuria had engaged a law firm, Pasha Legal, to represent her in the appeal proceedings only one working day before the hearing, and as a result the law firm was not in a position to properly advance a case on her behalf or even to form a view as to whether her appeal had any merits;

(4) an application was advanced on Ms Mekuria’s behalf for the hearing to be adjourned and for Ms Mekuria to be allowed a period of approximately one month to file a properly pleaded amended appeal notice and an outline of submissions; and

(5) the adjournment application was opposed by Mecca and the individual respondents.

[2] Ms Mekuria’s adjournment application was dealt with in a decision issued by us on 19 February 2019. 2 The full circumstances relevant to the adjournment application are set out in that decision and it is not necessary to repeat them here. It is sufficient to say that the adjournment application in the terms sought by Ms Mekuria was refused, but we determined that the following course should be taken:

“[23] In all the circumstances, we consider the appropriate step is treat the appeal hearing date as vacated and direct Ms Mekuria to file and serve an amended notice of appeal containing properly articulated appeal grounds, and a submission not exceeding three pages dealing with the issue of permission to appeal only, by 5.00pm on Monday 25 February 2019. This will give Ms Mekuria a limited opportunity, hopefully with the benefit of legal assistance from Pasha Legal, to identify the basis of her appeal including the grounds upon which permission to appeal is sought. This will allow us to make an assessment as to the appeal’s prospects of success and inform our consideration as to the procedural path forward without causing, at least at this stage, any overly prejudicial delay to the respondents. We do not consider that any time-consuming translation of documents is required in order for this direction to be complied with.

[24] We emphasise that if this direction is not complied with, the application for permission to appeal may be dismissed forthwith pursuant to s 587(1) of the FW Act without further hearing or notice. If an amended notice of appeal and an outline of submissions on permission to appeal are lodged in accordance with the direction, we may at that point refuse permission to appeal without hearing further from the respondents if we consider that no arguable case of appealable error is disclosed.”

[3] Pursuant to the directions in our decision concerning the adjournment application, on 25 February 2019 Ms Mekuria filed an amended notice of appeal and a letter addressed to the presiding member which we have taken to be a submission in support of the application for permission to appeal. In addition, on 27 February 2019, Ms Mekuria filed a report prepared by her treating clinical psychologist, Ms Sandra Raponi-Saunders. In this decision, consistent with paragraph [24] of our 19 February 2019 decision, we consider whether Ms Mekuria should be granted permission to appeal based on this material.

The proceedings before the Commissioner and the Decision

[4] In order to understand the nature of the grounds of appeal in Ms Mekuria’s amended notice of appeal, it is necessary to refer to the salient points of the Decision and the context in which the Decision was made. As earlier stated, Ms Mekuria’s initiating application sought orders to stop bullying against Mecca and three identified individuals who were all employees of Mecca. The three individuals were named on the second page of Ms Mekuria’s application as the persons against whom bullying was alleged. The application went on to say:

“Since about March 2017, the persons listed at page two of this form have bullied me. This conduct has been unreasonable and has now continued repeatedly for the last 12 months. The bullying is still ongoing. I consider that this behaviour has created and continues to create a risk to my health and safety.

The bullying has comprised of hurtful comments and passive aggressive behaviour carried out publicly in the workplace in front of me to disparage, hurt and ostracise me from the workplace.

The behaviour also has included spreading rumours about me and my family and organising hate group activities.”

[5] The application provided particulars of the alleged bullying (although none of the particulars appear to relate to Ms Chiruvu). In respect of remedy, the application sought mediation with Mecca in the first instance, and in the alternative: “If that would not be possible, then I request that the Commission order that the persons listed on page two cease and desist bullying me”.

[6] The application was the subject of a number of conferences before the Commissioner (on 11 April 2018, 17 May 2018, 25 May 2018 and 27 July 2018). The Decision records that during the course of the dispute resolution procedure conducted by the Commissioner at these conferences, Ms Mekuria abandoned the bullying allegations she had made against Ms Chiruvu. 3 Arising from these conferences, Mecca took a number of steps to eliminate any future risk of bullying against Ms Mekuria without making any admission that bullying had actually occurred. However, this did not result in a final settlement in respect of Ms Mekuria’s application. The Decision records what occurred as follows:

“[5] Notwithstanding the view of Ms Rebecca Hanley, Head of Talent & Culture Business Partnering, that there was not bullying behaviour occurring, she was willing to make any reasonable changes to eliminate the risk of bullying, given that the Applicant perceived that she was being bullied. As a result of the conferences conducted and in consultation with the Applicant and the persons named, the Employer implemented a number of initiatives aimed at reducing or eliminating the risk of any bullying. The consultation over the changes that were implemented was overseen by me during the conferences that were held. In summary, the changes implemented included training of employees, the signing of behavioural commitments to support a respectful, safe and cooperative working environment within the CFC and broader DC and the physical moving of staff to different locations in the warehouse in order to reduce or eliminate the prospect of the Applicant coming into contact with the persons named.

[6] Notwithstanding the implementation of the various initiatives, the Applicant maintains that she continues to be at risk of bullying and seeks that the Commission make orders to stop the bullying. The Employer seeks the Commission dismiss the application on the basis that there is no risk of bullying occurring as a consequence of the initiatives that the company has put in place to deal with the matter.”

[7] Mecca’s application for the dismissal of Ms Mekuria’s application was contained in correspondence sent to the Commissioner’s chambers on 6 August 2018. This correspondence set out in detail the steps which Mecca had taken to remove the risk of Ms Mekuria being bullied in the future, and attached signed behavioural commitments from Ms Mantacas, Ms Kelso and Ms Chiruvu as well as a site map demonstrating how Ms Mantacas and Ms Kelso had been relocated to avoid contact between them and Ms Mekuria.

[8] The Commissioner issued comprehensive directions for the hearing of the matter on 7 August 2018 in response to Mecca’s application for dismissal. These directions explained the issue to be determined and relevantly stated:

“[5] The parties are directed to file materials in relation to whether in these circumstances there is a risk that the Applicant will continue to be bullied at work by the persons named in the application (Ms Christine Mantacas, Ms Debra Kelso and Ms Grace Chiruvu) and whether there is power for the Commission to make an order to stop bullying (see s.789FF(1)(b)(ii)) or whether the application has no reasonable prospects of success and should be dismissed pursuant to s.587 of the Act.”

[9] The Commissioner’s directions required, among other things, that Ms Mekuria file an outline of submissions and any witness statements and documentary material upon which she intended to rely by 21 August 2018. Pursuant to this direction, Ms Mekuria filed a submission on 31 August 2018. Insofar as the submission made allegations of bullying at work, the submission stated:

“The Applicant claims that the Respondent’s employees Ms Christine Mantacas, Ms Debra Kelso and Ms Grace Chiruvu have specifically targeted directly and indirectly by comments and actions against the Applicant which has placed the Applicant in a constant demeaning position and fear for job security:

Particulars

3.1. The Applicant refers to the witness statement of Janet Mandfredi.

3.2. The Applicant refers to the witness statement of Jessica Lee.

3.3. The Applicant refers to their statement of reference.”

[10] The witness statements referred to had previously been filed on 12 March 2018, and related only to alleged bullying by the named individuals. In summary, Ms Mekuria’s submissions contended that the steps taken by Mecca were not adequate to protect her from future bullying by the three individuals. The submissions did not suggest that there had been or might in future be bullying by any other individual.

[11] The hearing of the matter was listed for 9.30am on 18 September 2018. At 9.05 am, Ms Mekuria sent an email to the Commissioner’s chambers which attached two documents. The first was in the form of a letter from Ms Mekuria addressed to the Commissioner, dated 18 September 2018 and entitled “Application by Alem Mekuria for further order and response to company request to dismiss application”. In this document Ms Mekuria described in some detail alleged interactions with employees at the workplace other than the three individuals named in her initiating application. These interactions were said to have occurred on 30 July 2018, 1 August 2018, 6 August 2018, 4 September 2018 and 5 September 2018. The purpose of the letter can best be ascertained from the following passage:

“I was very pleased with the Fair Work instruction given to the company dated 6 August 2018 in supporting me to provide me a safe work place. However, as a consequence of this instruction, my supervisor and managers were upset because they had friends who had been moved to different departments, or were upset by the change of breaks. The supervisor and the manager continue to humiliate me and undermine my ability by deliberately disclosing medical information about me to marginalise me in my relationships with other staff, including new staff who are just arrived to work temporarily through an agency.

Following this, I request an order from the Fair Work Commission to the effect that the supervisor and manager are required to honour the terms of the letter from Mecca Brands dated 6 August 2018. I also ask the Commission to order that the company respects my privacy and confidentiality. I request an order from the Fair Work Commission to reflect the terms of the company letter.

Finally, I request an order from the Fair Work Commission that my supervisor and managers stop gossiping with co-workers about everything they have been told by HR or top management for work purposes regarding my health, including the assumed health conditions of my family.”

[12] The file does not disclose that any “Fair Work instruction given to the company dated 6 August 2018 in supporting me to provide me a safe work place” was ever issued. The reference to the “letter from Mecca Brands dated 6 August 2018” appears to relate to correspondence sent to the Commissioner by Mecca requesting that Ms Mekuria’s application be dismissed.

[13] The second document, which was also in the form of a letter from Ms Mekuria addressed to the Commissioner and dated 18 September 2018, was in substance a lengthy criticism of the external investigation of Ms Mekuria’s bullying complaints which had been commissioned by Mecca and was conducted by Worklogic Pty Ltd.

[14] At the commencement of the hearing, Ms Mekuria contended that she had filed these documents late and not in accordance with the Commissioner’s directions because of “safety reasons”. 4 Mecca did not object to the documents being admitted into evidence having regard to the reasons referred to by Ms Mekuria, but referred to the prejudice caused by the lateness of the documents.5 Accordingly, the Commissioner admitted the documents.

[15] Ms Mekuria then gave sworn evidence in the proceedings, including in relation to the new documents. The Commissioner summarised the substance of that evidence in the Decision, 6 and went on to observe that: “…a great deal of the evidence was connected to alleged bullying behaviours of people other than the persons named in the application”.7

[16] In the Decision, after summarising the respective cases of Ms Mekuria and Mecca, the Commissioner proceeded to consider whether there was there was a risk to Ms Mekuria of further bullying. The Commissioner commenced his consideration by stating the following:

“[33] As outlined above, the employer has taken a number of steps to remove or reduce the risk of bullying. However, the Applicant is of the view that bullying has continued, although as mentioned, this was primarily directed at persons other than those named in the application.

[34] In this matter, I have sought to test the proposition advanced by the Employer that there is not a risk of bullying occurring in the future. The hearing was set down to test that proposition and not to test the proposition as to whether or not bullying did in fact occur. I have made no finding as to whether or not bullying behaviour was perpetrated by the group of persons named.

[35] … This decision is predicated on an assumption that, if the bullying conduct as alleged by the Applicant in respect of the group of individuals was in fact occurring, are the various initiatives that have been implemented by the Employer sufficient to satisfy me that there is not a risk that the individual will continued to be bullied at work by the group? In this matter, the group is Ms Debra Kelso, Ms Christine Mantacas and Ms Grace Chiruvu.

[36] I note that I have made this determination with reference to that group. As I have set out above, on the day of the hearing the Applicant made allegations about continued bullying behaviour which in one instance allegedly involved Ms Mantacas. However, this instance seemed to be directed at alleged behaviour of the supervisor during a discussion with Ms Mantacas. The other alleged bullying behaviour involved other people not named in this application and other incidents and behaviours that had not been formally raised with the Employer.

[37] It is important that all those involved in this matter understand that the Commission only has the jurisdiction to make an order to stop bullying where it is satisfied that a worker has been bullied at work by an individual or group and the Commission is satisfied there is a risk that the worker will continue to be bullied at work by the individual or group. As stated above, in this matter, the persons named that remain relevant to the application are Ms Debra Kelso, Ms Christine Mantacas and Ms Grace Chiruvu.”

[17] The Commissioner referred to the various steps taken by Mecca to eliminate the risk of future bullying by anyone in the “group”, and then stated two critical conclusions as follows:

“[43]  …Taking this into account, as well as what I consider to be a capacity of the Applicant to either misinterpret or misrepresent events in a manner that supports her belief that various people are engaging in bullying behaviour, led me to doubt the credibility of a great deal of the Applicants evidence. Taking this and all of the circumstances into account, I do not accept that there is a continued risk of bullying of the Applicant by the group.”

[18] In respect of Ms Mekuria’s new allegations, the Commissioner said:

“[44] As to whether there is a risk of bullying from the sources identified by the Applicant at the hearing, this is a matter that the Applicant will need to deal with separately to this application. I do note however, that I doubt the veracity of the claims of the Applicant in respect to significant components of her evidence on the new claims. For instance, her claim that she was referred to as an “ape”, “chimpanzee” and “gorilla” by people who had completed training was rather vague as she did not refer to a specific incident or name the individual/s that referred to her in this manner. Further, I have serious doubts about her claim that the OH&S Manager was following and watching her, except in the changing room and bathrooms.”

[19] Finally the Commissioner concluded as follows:

“[46] I am not satisfied that there is a risk that the Applicant will continue to be bullied at work by the persons named in her application pursuant to s.789FF(1)(b)(ii). Therefore, even assuming that the first jurisdictional prerequisite of s.789FF(1)(b)(i) was satisfied, there would not be jurisdiction to make an order to stop bullying.

[47] Accordingly, as there is no jurisdiction to make an order to stop bullying the application is dismissed. An order will be issued concurrently with this decision and the file will now be closed.”

Amended notice of appeal and submissions on permission to appeal

[20] The grounds of appeal stated in the amended notice of appeal are lengthy and are more in the nature of submissions. They may be summarised as follows (with the numbering below corresponding to the numbering in the appeal notice):

(1) The Commissioner mistook the facts as to the risk of future bullying, in that he failed to take into account factual information that the bullying conduct was ongoing. The Commissioner’s finding was limited to the risk of future bullying by “the group” (that is, the three named individuals), but “it is individuals other than those in the group that have done the subsequent bullying”. Attachment 3 to the notice of appeal details further evidence of bullying which has arisen as a result of the procedures implemented by Mecca.

(2) There was “subsequent evidence” of bullying “by many individuals working for the Employer” which has continued to date. Ms Mekuria requests that the Commission reconsider the determination that a risk of future bullying did not exist.

(3) In the absence of a finding as to whether bullying behaviour has been perpetrated, there cannot be a finding that the bullying is not at risk of continuing. The Commissioner had made it clear that he made no finding as to whether or not bullying behaviour was perpetrated by the group of persons named.

(4) The appeal raises an issue of general importance and application, and attracts the public interest. Given the “multitude of evidence” provided by Ms Mekuria, there was a risk of massive injustice to her and others in like position if bullying conduct “by the Employer” went “unnoticed”.

(5) There was a denial of natural justice. The evidence provided by Ms Mekuria was not taken into account by the Commissioner. At one of the conferences, the Commissioner was “called to a side room where a phone call took place between the Commissioner and (she believes) the respondent company’s HR Manager”. Ms Mekuria “happened to overhear some of the conversation” and “believed her language barrier was discussed, and that the respondent urged the Commissioner to believe that the applicant did not understand what bullying was”. The conversation was “humiliating and disrespectful”, and led to the Commissioner formulating the opinion that the bullying was “made up” by Ms Mekuria, having been “swayed” by Mecca’s representative. Ms Mekuria was not given the opportunity to respond to details of the conversation.

[21] Attachment 3 to the amended appeal notice sets out further instances of alleged bullying which were said to have arisen from the measures implemented by Mecca. It is sufficient to say that no allegation of further bullying is made against Ms Kelso, Ms Mantacas or Ms Chiruvu except for the following speculative statement:

“…although there is no contact between the respondents and the applicant, there is an ongoing systemic bullying of the applicant by others at the workplace, and the applicant is convinced that the respondents and their supporters openly discuss the confidential details of the applicant in an attempt to smear her reputation and cause further ridicule and ostracizing of the applicant.”

[22] In relation to permission to appeal, the notice of appeal again makes a short submission. In summary, its states that the grant of permission to appeal would be in the public interest because Ms Mekuria had suffered a substantial injustice, the bullying which she had experienced needed to be exposed for the betterment of society, and the Decision was counter-intuitive, manifested an injustice, mistook the facts and/or had not taken into account material considerations, in circumstances where the bullying and victimisation of Ms Mekuria had continued.

[23] Ms Mekuria’s submission in support of her application for permission to appeal described her experience as a refugee and migrant who came to Australia in 1992, and referred to the difficulties that she and other immigrants faced in the workplace and the community. Specifically in respect of Mecca, Ms Mekuria submitted:

“Mecca Brands did not follow its own stated Workplace bullying directives, has not implemented reasonable methods of directing workplace relationships, and did not use a fair and impartial means of following up my complaint. Mecca Brands has not kept records of all contacts I have made with them, and has been reluctant to send those it has retained or made, to my lawyers upon repeated requests

I have provided cogent and clear statements from two fellow workers who witnessed and also experienced bullying at the hands of the Respondents.

As a worker who met all workplace targets and was made Employee of the Month, even this was used an excuse to bully “a fast worker”.

It is clear that Mecca Brands has not addressed long standing workplace issues, and also failed in its duty of care to keep my details and concerns confidential from the Respondents, thus exacerbating an already fraught situation.

I was not supported by the systems supposedly put in place to do so, including by the Union, and as such I have spent over $10,000 in this Matter and seek a judgement that takes into account the damage to my reputation and health and notes not only the unfair working conditions within Mecca Brands but also their unwillingness to change these practices when they are highlighted.”

[24] The report from Ms Mekuria’s treating clinical psychologist contained an updated description of her medical condition and made reference to a “further workplace harassment incident” on 17 January 2019 which led to Ms Mekuria self-hospitalising for a short period. The report concluded:

“It is in the writer's opinion that Alem has experienced severe emotional distress and has been observed to be distressed in session in relation to her workplace bullying and harassment at Mecca Brands. Alem stated that she is resolute to persevere with proceedings and that her values of dignity and morality drive her strong commitment to anti-bullying and harassment principles.”

Consideration

[25] Section 604(2) requires the Commission to grant permission to appeal if it is satisfied that it is in the public interest to do so. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.⁸ The public interest is not satisfied simply by the identification of error or a preference for a different result.⁹ In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench identified some of the considerations that may enliven the public interest:

‘... the public interest might be attracted where a matter raises issue of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...’10

[26] Aside from the special case in s 604(2), the grounds for granting permission to appeal are not confined. Considerations traditionally adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration, and that substantial injustice may result if leave is refused.¹¹ It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.¹² However, the fact that the member made an error is not necessarily a sufficient basis to grant permission to appeal.¹³

[27] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 14 However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.

[28] Section 789FF(1) establishes the jurisdictional prerequisites for the making of an order to stop bullying. It provides:

(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.

[29] Apart from the requirement for an application to have been made under s 789FC, s 789FF(1) establishes two prerequisites: first, the Commission must be satisfied that the worker has been bullied at work by an individual or group of individuals and, second, the Commission must be satisfied that there is a risk that the worker will continue to be bullied at work by the individual or group. The use of the definite article in s 789FF(1)(b)(ii) in connection with the individual or group of individuals indicates that they must be the same as the individual or group of individuals considered for the purpose of s 789FF(1)(b)(i). That is, it is not sufficient to satisfy the second condition in s 789FF(1)(b)(ii) by demonstrating that there is a risk of being bullied at work by individuals other than those who have been found to have engaged in bullying pursuant to s 789FF(1)(b)(i).

[30] As we have earlier set out, Ms Mekuria’s application was premised on the proposition that she had been bullied by Ms Kelso, Ms Mantacas and Ms Chiruvu, and the orders she sought were to stop bullying by them. Arising from the dispute resolution process conducted by the Commissioner, Mecca put into place a number of measures to ensure that Ms Mekuria was not at risk of being bullied by these individuals in the future (without admitting that she had ever been bullied by these individuals in the past). On Mecca’s motion, the matter was listed for hearing on the basis (as was made clear in the Commissioner’s directions) that the only question to be determined was whether there was a risk of Ms Mekuria being bullied in the future by Ms Kelso, Ms Mantacas or Ms Chiruvu. That is, the hearing proceeded on the assumption, without finding, that the first jurisdictional prerequisite in s 789FF(1)(b)(i) could be satisfied, and was concerned only with whether the second jurisdictional prerequisite in s 789FF(1)(b)(ii) was satisfied having regard to the steps taken by Mecca since the proceedings commenced.

[31] The Commissioner was not satisfied that there was a future risk of bullying by Ms Kelso, Ms Mantacas or Ms Chiruvu, and it was on the basis of that conclusion that the application was dismissed. The first and fundamental point to be made about the appeal grounds in the amended appeal notice is that there is no challenge by Ms Mekuria to the Commissioner’s conclusion in this respect. That being the case, there is no basis upon which the appeal can possibly succeed. The only orders sought in Ms Mekuria’s application were to stop bullying by Ms Kelso, Ms Mantacas or Ms Chiruvu. Having failed to be satisfied that there was a risk of future bullying by these individuals, the Commissioner had no power to make orders against Ms Kelso, Ms Mantacas or Ms Chiruvu and had no option other than to dismiss the application for orders against them. The critical finding in that respect not having been challenged in the appeal, there is no room for us to form any alternate conclusion.

[32] Grounds (1) and (2) of the amended notice of appeal are not concerned with Ms Kelso, Ms Mantacas or Ms Chiruvu, but essentially seek to prosecute a new case against different individuals in an appeal hearing. It appears to be contemplated that this would involve the admission of new evidence. We do not consider that permission to appeal should be granted to permit this to occur. We have carefully perused all the documents in the file pertaining to the proceedings before the Commissioner. We can identify no indication that Ms Mekuria raised any allegation of bullying against any person other than Ms Kelso, Ms Mantacas or Ms Chiruvu prior to the morning of the hearing on 18 September 2018. The transcript of the hearing on 18 September 2018 supports this conclusion. 15 As earlier set out, Ms Mekuria suddenly raised new allegations against other employees less than half an hour before the commencement of the hearing, and in doing so sought to radically recast the bullying case she had up to that point presented to the Commission for resolution. It is these new allegations which Ms Mekuria seeks to ventilate in her appeal.

[33] It may be accepted that anti-bullying matters may not necessarily proceed upon a fixed and static set of bullying allegations and that, somewhat like an industrial dispute, they may involve an ongoing and evolving workplace situation. This is more likely to be the case where the bullying allegations are made against a group of persons at the workplace, since this will involve the dynamic of a network of inter-relationships with the capacity to give rise to new developments operating conterminously with the conduct of the proceedings in the Commission. However, we do not consider that is the situation that confronted the Commissioner. As we have stated, the proceedings went forward entirely on the basis of bullying allegations against a clearly identified group of individuals, and Mecca responded to the case on this basis. It was only when Ms Mekuria was confronted with the difficulty of demonstrating a future risk of bullying by those individuals in the face of the range of initiatives taken by Mecca that, for the first time and on the day of the hearing, she decided to raise a series of new allegations against other individuals for the apparent purpose of prolonging the proceedings. Mecca was of course in no position to respond to these new allegations. But more importantly Ms Mekuria’s application for orders to stop bullying by Ms Kelso, Ms Mantacas or Ms Chiruvu was never sought to be amended in any appropriate or procedurally fair fashion. The most that could be said is that one of the letters sent to the Commissioner on the morning of the hearing, as we have earlier set out, sought some new orders against her “supervisor and manager”. We do not consider that it is reasonably arguable that the Commissioner should in the circumstances have entertained this as an amendment to the application (nor is any such proposition specifically adverted to in the amended appeal notice). As the Commissioner appropriately observed, Ms Mekuria’s new allegations could be addressed via a fresh and separate anti-bullying application if they are seriously to be pursued.

[34] The third appeal ground in the amended notice of appeal appears to involve the contention that, on the proper construction of s 789FF(1), the jurisdictional prerequisite in s 789FF(1)(b)(ii) cannot not be addressed until a finding had been made in respect of s 789FF(1)(b)(i). However in circumstances where Ms Mekuria does not challenge the Commissioner's conclusion that he was not satisfied on the evidence that there was any risk of future bullying by Ms Kelso, Ms Mantacas or Ms Chiruvu, it is not apparent to us what the utility or relevance of this contention is even if it had legal merit. That is, even if a finding was made that Ms Mekuria had actually been subjected to bullying behaviour by Ms Kelso, Ms Mantacas or Ms Chiruvu in the past, the appeal notice and Ms Mekuria’s submissions disclose no basis upon which it could be found that there is a future risk of bullying by these individuals or even contend that such a finding is capable of being made.

[35] The fourth appeal ground does not actually involve any contention of error. The fifth appeal ground seeks to raise an allegation of a denial of procedural fairness, and perhaps additionally an allegation of apprehended or actual bias. However, the matter referred to in this ground was never raised before the Commissioner as a concern and appears to be founded substantially on speculation on the part of Ms Mekuria about the phone call she says she overheard. In any event, the proposition that this phone call led the Commissioner to believe that Ms Mekuria’s bullying allegations were “made up” goes nowhere since the Commissioner never made any finding concerning the truth or otherwise of the allegations. We also note the adverse credit finding made by the Commissioner, which Ms Mekuria does not seek to challenge in her appeal.

[36] In conclusion, we do not think any of the appeal grounds are reasonably arguable, and they do not raise any issue which we consider would justify the grant of permission to appeal in the public interest or on discretionary grounds.

[37] We note the contents of the report of Ms Mekuria’s clinical psychologist. While we sympathise with Ms Mekuria’s medical condition, we do not consider that could possibly form a basis for the grant of permission to appeal. While Ms Mekuria undoubtedly maintains a strong sense of grievance which motivates her to seek to appeal the Decision, it is of no benefit to her to grant permission to prosecute an appeal which has no reasonable prospects of success. In addition, we repeat the concern which we expressed in our decision of 19 February 2019 as to the effect that any unnecessary prolongation of this matter may have on Ms Kelso, Ms Mantacas and Ms Chiruvu. Insofar as Ms Mekuria wishes to have addressed allegations of bullying on the part of persons other than these three individuals, we repeat that she may do so by way of a new anti-bullying application.

Order

[38] Permission to appeal is refused.

VICE PRESIDENT

Appearances:

T Kay on behalf of the Appellant

R Hanley for the Respondent

Hearing details:

2019

Sydney:

18 February

Printed by authority of the Commonwealth Government Printer

<PR707304>

 1   [2018] FWC 6486

 2   [2019] FWCFB 1093

 3   Decision at [3]

 4   Transcript 18 September 2018, PN15

 5   Transcript 18 September 2018, PN21

 6   Decision at [13]

 7   Decision at [18]

8 Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]

9 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]-[27]

10 [2010] FWAFB 5343, 197 IR 266 at [24] – [27]

11 ]  FCA 1404 ,  89 FCR 200 , 84 IR 314  at 220; and Wan v AIRC  [2001] FCA 1803, 116 FCR 481 at [26] 

12 [2001] FCA 1803,  116 FCR 481 at [30] 

13 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]

 14   Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]

 15   Transcript 18 September 2018, PN93