Alemtsehay Mekuria v MECCA Brands Pty Ltd t/a Mecca Cosmetica; Debra Kelso; Christine Mantacas; [name redacted]. (C2018/6937), [2019] FWCFB 2771. Hatcher, VP; Sams, DP; Hampton, C. Appeal against decision [2018] FWC 6486 of Commissioner Lee 20 November 2018 in matter number AB2018/124.

Full decision: https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb2771.htm

The salient points from this appeal are:

  • Even for bullying the rules of an appeal still apply, in that new evidence cannot be introduced.
  • Despite the applicant’s medical condition, this was not cause for overturning, the original decision.
  • The respondent(s) had taken reasonable action to eliminate the cause of the bullying (including displacing a number of employees to suit the applicant’s issues.

Ms Alemtsehay Mekuria (the applicant) applied for permission to appeal against a decision in which the Commissioner dismissed Ms Mekuria’s application for anti-bullying orders against her employer and nominated persons.

In the applicant’s own words:

“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.”

In the initial decision it was noted that the Head of Talent & Culture Business Partnering, having investigated the matter, 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.

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; stating:

 “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.

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.”

When considering whether the appeal should be granted, the FB noted that:

 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.

The FB noted that the applicant attempted to introduce new evidence at the appeal, to which the FB stated that if the applicant wished to pursue these allegations, then she should raise a new bullying application.

In rejecting the appeal, the FB stated:

 “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…the effect that any unnecessary prolongation of this matter may have on the [respondents]. 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.