1
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)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT SAMS
COMMISSIONER HAMPTON SYDNEY, 26 APRIL 2019
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 20181 (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;
1 [2018] FWC 6486
[2019] FWCFB 2771
DECISION
E AUSTRALIA FairWork Commission
[2019] FWCFB 2771
2
(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
2 [2019] FWCFB 1093
[2019] FWCFB 2771
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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.
3 Decision at [3]
[2019] FWCFB 2771
4
[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.
[2019] FWCFB 2771
5
[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
4 Transcript 18 September 2018, PN15
[2019] FWCFB 2771
6
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
5 Transcript 18 September 2018, PN21
6 Decision at [13]
7 Decision at [18]
[2019] FWCFB 2771
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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”.
[2019] FWCFB 2771
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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
[2019] FWCFB 2771
9
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
8 Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]
[2019] FWCFB 2771
10
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
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 Also see CFMEU v AIRC [1998] FCA 1404, 89 FCR 200, 84 IR 314 at 220; and Wan v AIRC [2001] FCA 1803,116 FCR
481 at [26]
12 Wan v AIRC [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]
[2019] FWCFB 2771
11
(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
[2019] FWCFB 2771
12
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
15 Transcript 18 September 2018, PN93
[2019] FWCFB 2771
13
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
OF THE FAIR WORK MISSION THE
[2019] FWCFB 2771
14
Hearing details:
2019
Sydney:
18 February
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PR707304
