1
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Dr Pushpa Ravi
v
Baker IDI Heart and Diabetes Institute Holdings Limited T/A Baker IDI
Heart and Diabetes Institute; Dr Anne Reutens
(AB2014/116)
DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 28 OCTOBER 2014
Application for an FWC order to stop bullying; Employee dismissed after application lodged;
Application to dismiss because application for order to stop bullying has no reasonable
prospect of success; No risk of continued bullying at work; Application to dismiss upheld;
Application for order to stop bullying dismissed.
[1] Dr Pushpa Ravi has applied under s. 789FC of the Fair Work Act 2009 (the Act) for an
order under s. 789FF to stop bullying. At the time of making the application Dr Ravi was
employed by Baker IDI Heart and Diabetes Institute Holdings Limited (Baker IDI). On a
review of the material that had been filed by the parties, it was apparent to me that before the
application could be heard and determined, Dr Ravi’s employment with Baker IDI would end.
I convened as short telephone mention of the matter on 25 September 2014 at which time I
confirmed with the parties that Dr Ravi’s employment would end on 30 September 2014 and
alerted them to the possible effect of the ending of the employment on the application in light
of my decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A
ANZ Bank and Bianca Haines.1 I allowed the parties time to consider their respective
positions and to advise my chambers of their respective positions by 2 October 2014.
[2] On 2 October 2014, Counsel for Dr Ravi advised my chambers that his client sought
an adjournment of the application for 10 days in order that she could consult her husband who
was then travelling overseas. Later that day Baker IDI indicated that it would apply to have
the application struck out. An application to that effect was filed on 6 October 2014. Although
the application did not specify the section of the Act relied on or the specific ground on which
Dr Ravi’s application should be struck out by reference to the Act, it seems clear enough that
the application is for an order under s. 587 that Dr Ravi’s application be dismissed because it
has no reasonable prospects of success. On 6 October 2014 I requested that Dr Ravi file in the
Commission and serve on Baker IDI submissions in opposition to the application to dismiss
made by Baker IDI, by 10 October 2014. Dr Ravi did so.
1 [2014] FWC 3408
[2014] FWC 7507
DECISION
E AUSTRALIA FairWork Commission
[2014] FWC 7507
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[3] Baker IDI was permitted to file and serve submissions in reply by 15 October 2014,
which it did. The second respondent adopted the submissions of Baker IDI. Dr Ravi filed and
served further submissions on 16 October 2014.
[4] Baker IDI’s application for dismissal is made on the basis that Dr Ravi’s application
for an order to stop bullying has no reasonable prospects of success. This is so because since
Dr Ravi’s employment ended on 30 September 2014 there ceased to be a risk that Dr Ravi
will continue to be bullied at work by any individual or group.
[5] In Shaw I briefly discussed the application of s. 587 and the meaning to be ascribed to
the phrase “has no reasonable prospects of success”.2 I adopt what is said in that discussion
without repeating it.
[6] On or about 22 September 2011 Dr Ravi accepted an offer of grant specific
employment. That is by letter of offer dated 16 September 2011, Baker IDI offered
employment to Dr Ravi to commence on 1 October 2011 and to conclude on 30 September
2014, although for service related entitlements, employment pursuant to the offer was deemed
to have commenced on 18 April 2011. The letter of offer made clear that the employment
would end when the grant funding concluded that being 30 September 2014.
[7] The employment was for a maximum term which ending on 30 September 2014 rather
than a fixed term as the employment could be terminated prior to that date upon giving of
appropriate notice. However absent an intervening event the employment would end on 30
September 2014. The arrangement under which the employment was governed is described in
the offer is a “Grant Specific Employment Agreement”. The grant specific employment
agreement was entered into following the completion by Dr Ravi of a one-year employment
period with Baker IDI, although the offer of the grant specific employment was described as
an offer to ‘renew your contract of employment”.
[8] During a meeting held between Dr Ravi and representatives of Baker IDI on 20
August 2014, confirmation that Dr Ravi’s employment will end on 30 September 2014 was
communicated and was subsequently confirmed in a letter dated 22 August 2014. It is not in
dispute that Dr Ravi’s employment pursuant to the Grant Specific Employment Agreement
has ended and did so on 30 September 2014. It is not disputed that Dr Ravi is no longer
employed by Baker IDI and is no longer at the place of work at which the alleged bullying set
out in her application occurred.
[9] However in opposing the application for dismissal of Dr Ravi’s application, Dr Ravi
submits that the termination of her employment was not as a result of any act, omission or
misconduct on her part. Further Dr Ravi submits that given her experience in the research
being undertaken by Baker IDI and her familiarity with the patients of Baker IDI, Dr Ravi
might be re-employed by Baker IDI in the near future. Consequently so was submitted, these
factors distinguish Dr Ravi’s circumstances with those pertaining in Shaw. Upon return to
work there would continue to be a risk of bullying of the requisite kind sufficient to support
an order of the Commission being made.
[10] Thus, absent a clear statement from Baker IDI that Dr Ravi’s return to work would be
resisted and clear and cogent reasons given by it for such a position being taken, the
2 Ibid at [8] - [11]
[2014] FWC 7507
3
Commission should continue to deal with the application of Dr Ravi and Baker IDI’s
application should be dismissed.
[11] For its part, Baker IDI submits that Dr Ravi is no longer employed at Baker IDI, that
there is no funding for an additional clinical research coordinator or similar position in
another area in Baker IDI and there is no likelihood of the Dr Ravi’s return to work at Baker
IDI. To this Dr Ravi says that this submission might represent the position now, however it
does not set out the future possibilities and in any event urges that the Commission not
dismiss her application and exercise discretion continue to investigate the bullying
allegations.
[12] As a matter of fact, the employment of Dr Ravi has ended. Consequently it cannot
now be said that there is any risk of bullying of Dr Ravi at work. True it is that one cannot
presently know whether Dr Ravi return to work at Baker IDI, but that falls within the realm of
speculation not fact. The provisions in the Act which permit the making of an order aimed at
stopping bullying conduct are concerned relevantly with an assessment of whether there is a
risk that Dr Ravi will continue to be bullied at work by the individual or group that has bullied
Dr Ravi at work. Whilst assessing whether there is “a risk” might require a degree of
informed speculation, the assessment whether that risk may manifest itself “at work” does not.
It is no answer that Dr Ravi may in the future work at Baker IDI, though indications from the
respondent are to the contrary. There is simply no proper basis for concluding that Dr Ravi
will return to work at Baker IDI and there is a clear statement from her former employer that
there is no likelihood of that occurring.
[13] It seems to me clear that as Dr Ravi is no longer employed by Baker IDI and there is
no indication nor evidence that she will be employed by Baker IDI in near future or even in
the mid term. It cannot be said that Dr Ravi will be able to establish or that I can be satisfied
that there is a risk that Dr Ravi will continue to be bullied at work. In the circumstances it
seems to me clear that Dr Ravi’s application for an order has no reasonable prospect of
success. Furthermore, I am not persuaded that the mere possibility asserted by Dr Ravi that
she might return to work at Baker IDI in the future provides a basis for me not to exercise my
discretion dismiss Dr Ravi’s application. The prospect of conducting proceedings simply for
the purpose of establishing whether bullying occurred without current prospects of an order
being made is not in my opinion proper nor in the interests of justice and would be contrary to
sound case management principles.
[14] In the event that Dr Ravi obtains employment with Baker IDI in the future and she
remains concerned about the risk of continued bullying, a fresh application is not excluded
and the allegations of past bullying can be relied upon in support of such an application.
[15] In the circumstances I am satisfied that Dr Ravi’s application has no reasonable
prospects of success. I am also satisfied that I should exercise my discretion to dismiss the
application for the reasons just given. Dr Ravi’s application is dismissed and order to that
effect is issued separately in PR556973.
[2014] FWC 7507
4
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
Price code C, PR556919
FAIR ! WORK THE MMISSION SEAL OF THY
