Tanka Jang Karki (AB2018/599). [2019] FWC 3147. Sams, DP. 27 May 2019

Read full decision: https://www.fwc.gov.au/documents/decisionssigned/html/pdf/2019fwc3147.pdf

Introduction

The background to this case involves the applicant being disciplined on two fronts: one for using his mobile phone whilst on duty and another, for spitting in a bin located in a public area. The applicant failed to accept any responsibility (being quite aggressive during interviews) and lodged an application to stop bullying order. The applicant was dismissed and the Stop Bullying application was made in an (failed) attempt to seek injunctive relief from being dismissed from his employment.

The best part is at the end, where the DP provides his honest and open opinion of this application and applications of this ilk. But not before providing instructive insights into bullying under the Fair Work Act along the way.

After many pages of evidence and commentary the DP considered the applicant’s application against both the FW Act and relevant authorities:

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.’

A number of other provisions of the Act are relevant to the exercise of the power to make stop bullying orders. [including] that ‘a worker who reasonably believes that he or she has been bullied at work’ may make an application. Put another way, the Commission’s jurisdiction can only be enlivened if the worker reasonably believes they have been bullied at work. It is common ground that Mr Karki is a worker (according to the cross reference definition in the Workers Compensation Act 1987 (NSW)) and believes he has been bullied at work.

Of course, whether his belief is reasonable is an entirely different question. However, for present purposes, I am prepared to accept that Mr Karki’s application has been validly made to the Commission.

There are however, two other jurisdictional prerequisites which must be satisfied, before the Commission may exercise its power to make stop bullying orders: These are:

  • That the worker has been bullied at work by an individual or group of individuals; and
  • There is a risk the worker will continue to be bullied by the individual or group of individuals.

 Reference to Mekuria v MECCA Brands Pty Ltd t/a Mecca Cosmetica and Others [2019] FWCFB 2771, the Full Bench held that, the individual or group of individuals must be the same as those who had been found to have bullied the worker.

The test of what constitutes being ‘bullied at work’ is set out in s 789FD which provides as follows:

‘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.’ (my emphasis)

Three preconditions arise from s 789FD. These are:

  • the unreasonable behaviour must be repeated behaviour;
  • the behaviour must create a risk to health and safety; and
  • being ‘bullied at work’ does not apply to reasonable management action taken in a reasonable manner.

“Repeated (“unreasonable”) Behaviour”:

In respect to repeated behaviour, the Full Bench said in Blagojevic v AGL Macquarie Pty Ltd; Mitchell Seears (‘Blagojevic’) [2018] FWCFB 4174:

‘A one-off incident will not be a sufficient basis for the making of an application to the Commission. Provided there is more than one occurrence, there is no specific number of incidents required to meet the condition of “repeated” behaviour, nor does the same specific behaviour have to be repeated. The statutory provision requires repeated unreasonable behaviour by the individual or a group of individuals towards the applicant worker or a group of workers to which the applicant belongs.’

 “Management Action”:

 As to what being ‘bullied at work’ is not, the Full Bench in Blagojevic:

‘The expression ‘management action’ in is not confined only to managerial decisions but encompasses a wider range of conduct or behaviour which affects an employee, including such things as performance and disciplinary matters, the allocation of work and the way in which work is to be carried out. Placing an employee on a PIP clearly falls within the scope of the expression ‘management action’.

To determine whether the action constitutes “reasonable management action” it is necessary to undertake “an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time”. The test for reasonable management action is whether the “management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’.”

The specific question of whether placing a worker on a PIP constituted “reasonable management action” for the purposes of s.789FD(2) of the Act, was considered by Vice President Hatcher in Mac v Bank of Queensland Limited. In that case, the applicant, Ms Mac, argued that the managerial decision to impose, and continue to impose, a PIP on her, was not reasonable management action because the shortcomings in her performance had not been sufficiently serious to justify that decision being made. In assessing the reasonableness of this managerial decision, the Vice President did not attempt to form his own judgment as to whether Ms Mac’s overall performance was satisfactory, explaining:

‘… I do not consider that an assessment of whether the imposition of the PIP on Ms Mac was unreasonable requires the Commission to engage in the process of attempting to form its own judgment as to whether her overall performance was satisfactory or not and to substitute its judgment for that of the relevant BOQ managers and supervisors. Even if a different and better opinion of Ms Mac’s work performance could legitimately be formed on the evidence before me, that would not be sufficient to show that the decision to introduce the PIP was unreasonable. What is necessary is for Ms Mac to demonstrate that the decision to introduce the PIP lacked any evident and intelligible justification such that it would be considered by a reasonable person to be unreasonable in all the circumstances.’ (emphasis added)

Hampton C put it this way in Ms SB [2014] FWC 2104:

‘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’. 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’;
  • 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.

Management Action must be carried out in in a “reasonable manner”

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.

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.

All of the requirements must be read together. In terms of the issues in dispute in this case, this means that the Commission must consider whether an individual or group of individuals have repeatedly behaved unreasonably towards the applicant 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 by the FW Act do not apply to the behaviour, must be made for the Commission to find that the applicant worker has been bullied at work.’

In my view, the correct test is the objective reasonableness of the alleged bullying conduct, not how Mr Karki subjectively perceives it, no matter how firm his conviction.

The best for last…

And then the DP gave what can only be described as a full and frank appraisal of the applicant’s bullying claim:

“The fact that Mr Karki was the subject of disciplinary action for his own unacceptable conduct, and which was entirely justified and his steadfast refusal to acknowledge his conduct warranted any disciplinary action, demonstrates he has little understanding of what bullying in the workplace really means.

Any employer which has concerns about an employee’s conduct and is able to prove that conduct occurred (as here by the CCTV footage and Mr Karki’s own admissions) is perfectly entitled to conduct a disciplinary process and make a disciplinary outcome. In the case of The Star’s policies and procedures, The Star has a comprehensive and detailed regime for dealing with such matters and ensuring fair and reasonable outcomes. Of course, Mr Karki is just as entitled to justify his conduct, defend his position and challenge the outcome, which he did in this case. The fact he did not, and continues to not accept the warning, is completely beside the point. Mr Karki seems to believe he can shield himself from soundly based and entirely justified disciplinary action for poor conduct which he does not deny. He is very much mistaken.

 In my opinion, it is not acceptable to use the stop bullying jurisdiction of this Commission as a shield or stalking horse, to prevent, delay or deflect justifiable disciplinary outcomes, or to claim that the disciplinary outcomes themselves are repeated unreasonable behaviour, constituting bullying. It demeans and undermines the important work of the Act’s stop bullying provisions to prevent workplace bullying. On one view, such conduct might be said to be perilously close to an abuse of process.

For some time, I have been troubled that the important and beneficial purpose of the stop bullying jurisdiction of the Commission is being used for a purpose for which it was never intended by the legislature. This has been a strategy to file a stop bullying application as a deflection, or diversion, or even to overturn a justified disciplinary action or legitimate or performance improvement processes, implemented by an employer as a reasonable management response to incidents of misconduct or poor performance. This case is an obvious example of this improper purpose.

Regrettably, I found much of Mr Karki’s evidence to be fanciful or implausible and for the most part, entirely made up. He attempted to reconstruct events according to his own narrative, which was far removed from reality. The CCTV footage can give him little comfort. Specifically, I reject his claims that:

Most ridiculous of all was his submission that he was not using his phone because he was texting, not speaking on the phone. It hardly needs to be said that I doubt this argument would ‘wash’ when a person is caught by the Police using their mobile while driving.

Mr Karki defended his spitting in the bin on the basis that there is no express policy of The Star dealing with the matter. This is nonsense. One does not need a policy, or direction that you do not spit in a public area at a venue such as The Star (or any public place, in my view) while on duty, or otherwise. It seems clear to me that Mr Karki did not know Mr Cameron was in the vicinity (because he was not in uniform) and incorrectly assumed he would get away with it. I also find highly improbable that the applicant had a toothache and a bleeding gum which required him to spit blood into a bin. In a question from me, Mr Karki said he did not seek any dental or first aid assistance.

Lastly, it is a relevant consideration that Mr Karki took no steps to lodge any grievance he had against Ms Sykes or The Star generally, in accordance with The Star’s detailed policy for dealing with such matters. Rather, on the same day of the incident on 27 August 2018, Mr Karki lodged this application in the Commission. In the ordinary course, the Commission would not intervene in a bullying grievance (let alone make interim or final orders), without an internal process having been initiated and/or completed. This is particularly so for an employer such as The Star, which on any objective view, has a comprehensive and commendable bullying policy applying to its workplace.

Needless to say, the application was denied (the expression “thrown out of court” comes to mind).

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
  • Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
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  • Policies and procedures.
  • Discipline & Termination.
  • People Audits (are you at risk of prosecution?).
  • Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
  • On-site HR services.

Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.