1
Fair Work Act 2009
s.604 - Appeal of decisions
South Eastern Sydney Local Health District
v
Kusum Lal
(C2019/140)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT SAMS
COMMISSIONER HAMPTON SYDNEY, 7 MARCH 2019
Appeal against order [PR703410] of Commissioner Johns at Melbourne on 20 December
2018 in matter number AB2018/567.
[1] The South Eastern Sydney Local Health District (District) has lodged an appeal, for
which permission to appeal is required, against a decision made by Commissioner Johns on
20 December 2018 to issue interim anti-bullying orders1 (Orders) on the application of Ms
Kusum Lal, an employee of the District. The Order, which was said by the Commissioner to
have been made pursuant to ss 595, 589 and 789FF of the Fair Work Act 2009 (FW Act),
contained the following substantive provisions:
“[1] On and from 21 December 2018, the South Eastern Sydney Local Health District
(District) must appoint Mrs Kusum Lal to the position of Administration Officer Level
5 – Ambulatory Care Unit and Outpatients Department – St George Hospital
(Position) on a temporary basis;
[2] If the Position ceases to be available for Mrs Lal to perform duties in, the District
must:
(a) provide Mrs Lal administrative duties on a supernumerary basis other than
in the Collections Office; and
(b) pay Mrs Lal at her substantive rate of pay, being as an Administration
Officer - Level 5, 2nd year, in accordance with the Health Employees
Administrative Staff (State) Award 2018;
[3] Between 23 December 2018 and 6 January 2019 Mrs Lal must comply with any
directive of the District to take annual leave during the “low activity period” (other
than in respect of Public Holidays or union picnic days).
1 PR703410
[2019] FWCFB 1475
DECISION
E AUSTRALIA FairWork Commission
[2019] FWCFB 1475
2
[4] This order takes effect immediately and shall remain in force until further order of
the Commission.”
[2] The District contends that the Commissioner exceeded his powers under the FW Act
in making the Order.
[3] The circumstances which led to the making of the Order may briefly be described. Ms
Lal is employed by the District in its Billing Service Centre at the Prince of Wales Hospital,
which is operated by the District. Ms Lal alleges that from about 2016 she experienced
bullying and harassment by certain managers and supervisors in her work area. The conduct
which constituted this bullying and harassment was said to include singling out and unduly
close monitoring by management, the allocation of an unreasonably excessive and inequitable
workload, unfair comparisons with work colleagues, and ostracism. Ms Lal went off work
from June 2018 due to a medical condition which she alleges was caused by the workplace
bullying. Ms Lal made a formal written complaint about this to the Chief Executive Officer of
the District on 26 July 2018. The District rejected the complaint in a letter dated 20 August
2018, which in summary contended that the matters raised by Ms Lal constituted reasonable
management actions taken in order to improve efficiency in the Billing Service Centre and to
manage her performance.
[4] On 10 September 2018 Ms Lal made an application to the Commission for an order to
stop bullying pursuant to s 789FC of the FW Act. The response to the application filed by the
District on 28 September 2018 denied the allegations of bullying made in Ms Lal’s
application. The District also made a jurisdictional objection to the application, namely that
the anti-bullying provisions of the FW Act did not apply to it because it was not a
“constitutionally-covered business”, but this was withdrawn fairly shortly afterwards. The
Commissioner conducted conferences in relation to the matter on 1, 14 and 23 November and
5 and 19 December 2018, but these did not result in any agreed resolution to Ms Lal’s
application. At the last of these conferences Ms Lal foreshadowed making an application for
interim orders. The Commissioner made directions for the purpose of hearing this application
the following day, 20 December 2018, which included a direction for Mr Lal to file a
document setting out the terms of the interim order which she sought to be made.
[5] At the hearing before the Commissioner on 20 December 2018, Ms Lal contended that
she was fit to return to work, but not at the Billing Service Centre where she faced a risk of
continued bullying, and sought an interim order that she be placed in the alternative position
of Administration Officer Level 5 - Ambulatory Care Unit and Outpatients Department at St
George Hospital, another hospital operated by the District. There was no dispute that this
position was vacant at the time and being advertised. Once that position was permanently
filled, Ms Lal sought to be assigned supernumerary duties until the determination of her anti-
bullying application. Ms Lal made a witness statement in support of her position which was
received into evidence.
[6] The submission made by the District against the making of the interim orders was, in
its entirety, as follows:
“We do object to the order on the basis that we are going through a low activity period
over the next two weeks, and basically anyone who's not frontline staff has been
ordered by the Ministry of Health or sorry, has been directed by the Ministry of Health
more actually to be working. That would mean that if were to place Ms Lal into a
[2019] FWCFB 1475
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position say tomorrow, any new position that we put her into and obviously needs to
be trained in that position because not all admin positions are equal. They all have - I
mean they have the admin component but there would obviously be and certainly in
Ambulatory Care and the Outpatients Department, there'd probably be quite a few
things that Ms Lal would learn. I'm not - would need to learn, and I'm not saying that
she couldn't but what I'm saying is we have skeleton staff, so during this period it
would be very difficult to integrate her into one of those roles even on a temporary
basis.
I note that she does have significant annual and long service leave balances, and I
mean if she would like to apply for any of those vacancies as, you know, to actually
permanently work in those roles, obviously we'd encourage her to do that and we can
assist her with her application. I think we would have more opportunities post 7
January when Ms Lal returns from leave, because then we would have people - most
of the people would be back at work. Not everyone but there'd be enough people that
if she were to be temporarily acting in any of those roles, there would be someone that
would be able train her up and supervisor her. I also note that there is work in Medical
Records which will commence on 20 Jan as well. So we're starting to already get
some opportunities in the new year.”2
[7] The District did not adduce any evidence. Prior to making his decision, the
Commissioner sought and obtained an assurance from the representative for the District that
she had sought and was acting upon instructions from the District’s senior management in
relation to Ms Lal’s application for interim orders.3
Reasons for decision
[8] The Commissioner delivered his reasons for issuing the Order ex tempore at the
conclusion of the hearing on 20 December 2018. The Commissioner began by setting out the
principles which he intended to apply in the determination of Ms Lal’s application, and said:
“Section 589 of the Fair Work Act provides that the Commission may make procedural
and interim decisions. I do not propose to read that section. However, the principles
relevant to the making of an interim order are well established. In summary, the
Commission must determine if there is a serious issue to be tried and where the
balance of convenience lies having regard to the nature of the substantive application,
the jurisdictional context in which the application is being considered and the
circumstances of the parties.”4
[9] The Commissioner then applied these principles by firstly finding that Ms Lal’s anti-
bullying application gave rise to a serious question to be tried as follows:
“In the present matter I have had an opportunity to consider the materials which have
been filed in the application for an order to stop bullying in the form F72 and note in
particular KL1 to the application, which is a letter dated 26 July 2018 from the
applicant to the then chief executive officer of the District. The applicant in that
2 Transcript 20 December 2018 PNs 27-28
3 Ibid PNs 33-34
4 Ibid PN48
[2019] FWCFB 1475
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correspondence outlines various grievances, at least going back to May 2018 and in
particular identifies issues relating to grievances made about her, KPI targets,
spreadsheet training, daily duties, debt collection list and KPI meetings.
At the interim injunction stage, it is not possible no[r] ...appropriate for the
Commission to make findings of facts in relation to those matters. However, I note
that if the evidence put forward by the applicant is substantiated at the substantive
hearing, then it seems possible that the applicant will be able to establish that she has
been the victim of bullying behaviours.
Having considered the materials filed to date and further the witness statement of the
applicant, exhibit A2 filed today, I am therefore satisfied that if the evidence remains
as it is, there is an arguable case with some reasonable prospect of success, that the
named individuals have engaged in bullying behaviours towards the applicant, and that
consequently there is a continuing risk to her health and safety issues required to work
in that unit. In those circumstances, there is a reasonable prospect that orders aimed at
preventing bullying from occurring may be made. For these reasons, I am satisfied
there is a serious question to be tried.”5
[10] The Commissioner then turned to the question of the balance of convenience, and after
referring to the parties’ respective submissions, said:
“Having considered those submissions, it seems to me that the inconvenience or injury
to the applicant from refusing the interim orders outweighs the injury the respondent
would suffer if such an order is granted. That is to say, the injury to the respondent is
merely requiring it to engage the applicant to do productive work for which it pays
tomorrow and from 7 January 2019, in circumstances where it is an organisation with
a significant budget.
On the contrary, the inconvenience or injury that the applicant would suffer if the
interim orders were not granted is that she would be required to reduce her annual
leave balances in circumstances where she has an arguable case in relation to her
substantive application for anti-bullying orders. In those circumstances I am satisfied
that the balance of convenience weighs in favour of granting interim orders.”6
[11] Ms Lal’s substantive application is listed for hearing before the Commissioner on 30
April and 1 May 2019.
Appeal grounds and submissions
[12] The District’s appeal grounds were, in substance, as follows:
(1) The Order was made beyond the scope of the power conferred by s 789FF of
the FW Act because it was not directed to stopping bullying behaviour.
(2) The Order gave rise to a pecuniary penalty contrary to s 789FF(1).
5 Ibid PNs 52-54
6 Ibid PNs 60-61
[2019] FWCFB 1475
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(3) The Order impermissibly amounted to a reinstatement.
(4) The Commissioner failed to consider the suitability of Ms Lal for the position
of Administration Officer Level 5 - Ambulatory Care Unit and Outpatients
Department - St George Hospital and the impact on the District.
[13] The District submitted that:
the purpose of orders made under section 789FF must be directed at preventing future
bullying behaviour and resolving the bullying behaviour so that normal working
relationships can resume;
an order that compels the movement of a victim of alleged bullying behaviour to
another role is inconsistent with the scope of section 789FF since it does not provide
recourse to a solution that addresses the alleged bullying behaviour in a sustainable
manner;
the purpose of section 789FF is to fix the bullying behaviour, even on an interim basis,
not to move the victim away from the source of the problem without addressing the
root cause of the issue;
orders responsive to the conduct of the alleged perpetrators of bullying conduct would
be within jurisdiction, but the Order made by the Commissioner did not serve this
purpose;
the Order had the effect of putting Ms Lal in a job in relation to which the District
was required to make a payment consisting of or given or exacted in money to the
employee as a result of the Order, contrary to the terms of s 789FF(1);
this was particularly the case given that the District would not have chosen to place
Ms Lal in the position the subject of the Order and would not therefore have incurred
the payment of a pecuniary amount to Ms Lal in relation to that position;
the Order also effectively appointed Ms Lal to another position on terms and
conditions no less favourable to those on which she was previously employed, and
was therefore an order for reinstatement, which was outside the scope of the
Commission's powers under section 789FF; and
alternatively, if the Order was within power, the Commissioner erred in the exercise of
his discretion in that he failed to consider Ms Lal’s appropriateness for the position at
St George Hospital, including whether she had the skill set for the position, the extent
that her skills would meet a substantial proportion of the duties required, and
consequently the extent to which training would be required.
[14] The District submitted that permission to appeal should be granted because the appeal
raised issues of importance and general application that have not previously been considered
by a Full Bench, including:
(a) the ability of the Commission to order the appointment of an employee to
another position;
[2019] FWCFB 1475
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(b) what can amount to “payment of a pecuniary amount” under section 789FF;
(c) whether directing a form of ongoing employment in a different role amounts to
“payment of a pecuniary amount” or is otherwise permitted under section
789FF; and
(d) whether orders made under section 789FF are limited to stopping behaviour of
other individuals towards the applicant.
[15] Ms Lal submitted that an order which had the purpose of minimising contact between
an applicant in an anti-bullying matter and the employees who were said to be engaging in
bullying behaviour was clearly one which served the statutory purpose of s 789FF and was
within power. Ms Lal further submitted that an order which, as here, provided for the proper
remuneration to be paid for work performed was not an order requiring payment of a
pecuniary amount, since the exclusion in s 789FF(1) did not go so far as to exclude any order
which had a pecuniary consequence. The Order could not be characterised as one for
reinstatement because, it was submitted, Ms Lal had not been dismissed. In relation to the
matters that were said by the District not to have been considered by the Commissioner in the
exercise of his discretion, Ms Lal submitted that these matters had not been the subject of any
submissions at first instance, and the Commissioner was not required to take into account
matters which had not been raised.
Relevant statutory provisions
[16] The power to make anti-bullying orders is contained in s 789FF, which provides:
(a) 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
[2019] FWCFB 1475
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(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.
[17] Section 589(2) empowers the Commission generally to “make an interim decision in
relation to a matter before it”. Section 595(3) provides that the Commission may deal with a
dispute by arbitration, including by making any orders it considers appropriate, only if the
Commission is expressly authorised to do so under or in accordance with another provision of
the FW Act.
Consideration
[18] We do not consider that this is a matter in which permission to appeal must be granted
in the public interest or should be granted on discretionary grounds, for four reasons.
[19] Firstly, this is an appeal against a decision that is interlocutory in nature only. The
Commissioner took the approach that he had the power to make an interim anti-bullying order
under ss 589, 595 and 789FF if he was satisfied that the application before him gave rise to a
serious question to be tried and the balance of convenience favoured the making of an interim
order. The District accepted in its appeal that this was the appropriate test to be applied to any
application for an interim anti-bullying order, so the question of whether the conditions in s
789FF(1)(b) required satisfaction prior to the making of any such order do not arise for
consideration in this appeal. The District did not challenge the Commissioner’s conclusion
that there was a serious question to be tried, nor did it challenge the conclusion that if interim
relief was not granted Ms Lal would be required to exhaust her annual leave balances in order
to prevent any risk of exposure to the anti-bullying behaviour, the subject of her application
prior to the hearing and determination of that application. There was no suggestion that the
continuance of the interim order for the relatively short period until the application will be
heard and determined to finality will cause the District any irreparable, significant or even
identifiable damage or injury. Accordingly, the appeal lacks practical utility.
[20] Secondly, having regard to the fact that the District’s appeal only challenged the
particular form of interim relief granted by the Commissioner and not the more general
proposition that the circumstances of the case required some form of interim arrangement to
be put in place prior to the final hearing and determination of the matter, we place weight on
the fact that neither at first instance, nor in the appeal did the District propose any alternative
regime of interim orders that would appropriately protect the respective interests of the
parties.
[21] Thirdly, we consider that the jurisdictional issues raised by the District in grounds 1-3
of its notice of appeal (which were not raised at first instance despite the fact that the Order
made by the Commissioner was substantially in the same terms as that sought in Ms Lal’s
application for interim relief) lack sufficient merit to justify the grant of permission to appeal.
[2019] FWCFB 1475
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The wide scope of the power to make anti-bullying orders under s 789FF was described by
the Full Bench in Churches and Ors v Jackson & Woods7 in the following terms:
“[32] We have set out the terms of s.789FF above. In our view, the Commission is
given wide powers to make preventative orders it considers appropriate. These powers
must be informed by, but not necessarily limited to, the prior unreasonable conduct as
found. However, any orders must be directed towards the prevention of the worker
being bullied at work in the future by the individual or group concerned, be based
upon appropriate findings, and have regard to the considerations established by
s.789FF(2) of the FW Act.”
[22] Similarly in Re McInnes8 the Full Bench said:
“[9] Importantly, a s.789FF order operates prospectively and is directed at preventing
the worker being bullied at work. The Commission is specifically precluded from
making an order requiring the payment of a pecuniary amount, hence it cannot make
an order requiring a respondent to pay an amount of compensation to an applicant.
The legislative scheme is not directed at punishing past bullying behaviour or
compensating the victims of such behaviour. It is directed at stopping future bullying
behaviour.”
[23] In short, it is well-established as well as unambiguously clear from the text of the
provision that s 789FF(1), where applicable, confers on the Commission a wide discretion to
make such orders as it consider appropriate to serve the purpose of preventing an employee
being bullied at work by the person or persons the subject of an anti-bullying application. The
only jurisdictional limitation expressly stated in the terms of the provision is that an anti-
bullying order must not require the payment of a pecuniary amount.
[24] It is apparent from the Commissioner’s reasons for decision that the Order was
intended to serve the purpose of preventing Ms Lal being bullied by the persons in the Billing
Service Centre the subject of her application, and objectively it is apparent that the Order
would in fact serve that purpose in that it would, on an interim basis, eliminate or at least
minimise any contact between Ms Lal and those persons. That is sufficient to bring the Order
within jurisdiction. That there might have been other ways to achieve that objective is beside
the point. Physical and/or functional separation in the workplace of a complainant of bullying
and those said to have engaged in bullying conduct is self-evidently one way of preventing
future bullying, albeit that it may be a last resort where other practical measures will not be
effective. A requirement that the employer place the complainant in an alternative position
(or, alternatively, that an individual found to have engaged in bullying conduct be redeployed
elsewhere) in order to achieve such separation may, we consider, be a legitimate incident of
an order of this nature.
[25] The District failed to identify anything in the text of the provision, or the statutory
context, which established any relevant limitation in the s 789FF(1) power which placed the
Order beyond jurisdiction. The District instead placed heavy reliance on the following
passages from the Explanatory Memorandum for the Fair Work Bill 2013:
7 [2016] FWCFB 2367
8 [2014] FWCFB 1440, 241 IR 158
[2019] FWCFB 1475
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“[120] The power of the FWC to grant an order is limited to preventing the worker
from being bullied at work, and the focus is on resolving the matter and enabling a
normal working relationships to resume. The FWC cannot order reinstatement or the
payment of compensation or a pecuniary amount.
[121] Examples of the orders that the FWC may make include an order requiring: the
individual or group of individuals to stop the specified behaviour; regular monitoring
of behaviours by an employer; compliance with an employer's workplace bullying
policy; the provision of information and additional support and training to workers;
review of the employer's workplace bullying policy.”
[26] The above passages cannot of course be treated as a substitute for the text of the FW
Act, but in any event we do not consider that there is anything in those passages which
supports the jurisdictional limitation posited by the District. That the “focus is on resolving
the matter and enabling a normal working relationships to resume” merely confirms that the
provision is preventative in nature rather than punitive or compensatory, and there is no
reason to doubt that a separation order is one way to resolve an anti-bullying application and
to allow employment relationships to resume in a normal, albeit different, manner. Further, no
jurisdictional limitation may be implied from the fact that a separation order is not one of the
examples of possible orders identified in the Explanatory Memorandum.
[27] There is no basis to the proposition that the Order requires the payment by the District
of a pecuniary amount, either in terms or in its effect. It is not directed at providing
compensation to Ms Lal or penalising the District; it does no more that confirm that for the
alternative work identified in paragraph [2] of the Order Ms Lal will receive her normal rate
of remuneration. An Order which has the effect of requiring the continuation of the payment
of normal wages for work performed in the context of a continuing employment relationship
does not fall within the exclusion in s 789FF(1). The proposition that any order which
potentially requires some monetary expenditure on the part of the employer falls foul of the
exclusion must be rejected; were it otherwise, the scope of the power in s 789FF(1) would be
narrowed to the extent of substantially defeating its purpose. It would mean, for example, that
the illustrative types of orders identified in the passage from the Explanatory Memorandum
quoted above might not be able to be made because they would likely have the effect of the
employer incurring some monetary cost.
[28] There is likewise no basis for the proposition that the Order is one requiring Ms Lal’s
reinstatement. We note that, notwithstanding what the Explanatory Memorandum says, there
is no express exclusion in s 789FF in respect of reinstatement orders, although we accept that
such an exclusion might arguably be implied on a number of bases. However, reinstatement is
a remedy for a person who has been dismissed. Ms Lal has not been dismissed, so there is no
reason to characterise the Order as one for reinstatement.
[29] Fourth, in respect of the fourth ground of appeal challenging the Commissioner’s
exercise of his discretion, we accept Ms Lal’s submission that the relevant matters said by the
District to have been erroneously excluded from consideration were never raised by the
District at first instance. We have earlier set out, in full, the submissions which the District
made before the Commissioner. It was not submitted that Ms Lal would not be suitable for the
role at St George Hospital, only that there might be some difficulty in providing her with any
necessary training over the summer holiday period. It is not the function of the appeal process
to provide a further opportunity for an unsuccessful party to redress deficiencies in the case
[2019] FWCFB 1475
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the party advanced at first instance.9 In addition and in any event, we were informed that
because the position at St George Hospital has now been substantively filled, paragraph [1] of
the Order is no longer operative and paragraph [2] is now the applicable provision.
Accordingly, the fourth ground of appeal has been rendered moot by the progress of
circumstances.
[30] Finally, we note that there was no contention by the District that the Commissioner
was required but failed to take into account the matters identified in s 789FF(2), so this is not
a matter to which any consideration need be given.
Conclusion
[31] Permission to appeal is refused.
VICE PRESIDENT
Appearances:
T. Woods, solicitor, on behalf of the South Eastern Sydney Local Health District
M. Gibian SC on behalf of Kusum Lal
Hearing details:
2019.
Sydney:
21 March.
Printed by authority of the Commonwealth Government Printer
PR705589
9 Metwally v University of Wollongong [1985] HCA 28, 59 ALJR 481, 60 ALR 68
OF THE FAIR WORK MISSION THE
