1
Fair Work Act 2009
s.739—Dispute resolution
Application by Kama Jennings
(AB2019/661)
COMMISSIONER CIRKOVIC MELBOURNE, 19 DECEMBER 2019
Application for orders to stop bullying – application for interim orders.
Introduction
[1] On 19 November Ms Kama Jennings (“the Applicant”) lodged an application for
orders to stop bullying under s.789FC of the Fair Work Act (“the Act”). The employer is
Intereach Limited (“the Respondent”) and the persons against whom bullying is alleged are
Ms Michelle Kelly, Ms Keryn Fox, Ms Kylee Caruso and Ms Pat Fogarty.
[2] I conducted a conference between the parties on 13 December 2019, which failed to
resolve the matter.
[3] On 18 December 2019, the Applicant’s representative emailed my chambers as
follows:
“This matter was set and heard at conciliation on Friday 13 December 2019 before
Commissioner Cirkovic. Immediately prior to this conciliation the Respondent sent
the Applicant a letter requesting she show cause for her employment. The Applicant
sought that her matter be set for hearing. The Respondent would not provide the
undertaking not to terminate her employment until such hearing.
The Applicants seek an urgent hearing to be held over the phone for this afternoon or
Thursday.
The basis for this request is that the Applicant has been asked to provide her response
by no later than 1pm Friday 20 December 2019. The Applicant believes that her
employment will be terminated as a result.
The Applicant wishes to seek interim orders preventing termination.”
[4] I listed the application for interim orders for hearing at 1.00pm on 19 December 2019.
[5] The Applicant was represented by the Australian Municipal, Administrative, Clerical
and Services Union and the Respondent was granted permission to be represented by its
lawyers.
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REASONS FOR DECISION
E AUSTRALIA FairWork Commission
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[6] At the hearing the Applicant’s representative confirmed the order sought would be
that: “any disciplinary action including termination of employment be postponed until the
matter can be determined.”
[7] The Respondent objected to the order being issued.
[8] The Applicant Ms Jennings gave evidence in the form of a witness statement and was
cross-examined by the Respondent’s representative. The Applicant also tendered four witness
statements which were accepted into evidence. Given that these witnesses were not called to
give evidence and were not available for cross-examination, I agree with the Respondent that
little weight should be attributed to the content of their statements.
[9] Ms Yvette Bahagiar, General Manager Projects – Change Management of the
Respondent gave evidence for the Respondent in a witness statement and was cross-examined
by the Applicant’s representative.
[10] For the following reasons I have determined to dismiss the Applicant’s application for
an interim order.
[11] In coming to my conclusion, I have considered the entirety of the written and oral
submissions of both the Applicant and the Respondent.
Jurisdiction
[12] There is no contest between the parties that the Commission has jurisdiction to make
an interim order under s.589 in the course of a proceeding under s.789FC of the Act.
The application for an interim decision
[13] Section 589 of the Act provides as follows:
“589 Procedural and interim decisions
(1) The FWC may make decisions as to how, when and where a matter is to be dealt
with.
(2) The FWC may make an interim decision in relation to a matter before it.
(3) The FWC may make a decision under this section:
(a) on its own initiative; or
(b) on application.
(4) This section does not limit the FWC’s power to make decisions.”
The principles to be applied to an interim decision
[14] The principles relevant to the making of interim orders are well established.1 In
summary, the Commission must determine if there is a serious issue to be determined and
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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.2
[15] In Australian Manufacturing Workers’ Union v WW Wedderburn Pty Ltd,3 Gooley DP
made the following comments when dealing with an application for interim orders:
“[5] The AMWU submitted that in deciding whether to issue an interim order, the
Commission must determine if there is a serious issue to be tried and balance of
convenience.
[6] These principles were discussed by Bromberg J in Quinn v Overland where His
Honour said:
“[45] In determining an application for interlocutory relief, the Court addresses
two main inquiries. First, whether the applicant has made out a prima facie
case in the sense that if the evidence remains as it is, there is a probability that
at the trial of the action the applicant will be held entitled to relief. Second,
whether the inconvenience or injury which the applicant would be likely to
suffer if an injunction were refused outweighs or is outweighed by the injury
which the respondent would suffer if an injunction were granted: Australian
Broadcasting Corp v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at [65],
[19].
[46] The requirement of a “prima facie case” does not mean that the applicant
must show that it is more probable than not that the applicant will succeed at
trial. It is sufficient that the applicant show a sufficient likelihood of success to
justify in the circumstances the preservation of the status quo pending the trial.
How strong the probability needs to be depends upon the nature of the rights
the applicant asserts and the practical consequences likely to flow from the
order the applicant seeks. In that context there is no objection to the use of the
phrase “serious question” to convey the strength of the probability: Australian
Broadcasting Corp v O’Neill per Gummow and Hayne JJ at [65]-[72], Gleeson
CJ and Crennan J agreeing at [19].”
[7] S.589(2) of the Fair Work Act 2009 gives the Commission power to make an
interim decision. S.598(4) of the Act provides that a decision that is described as an
order must be made by order. An example is given in a note and it refers to a decision
that is described as a bargaining order.”
[16] The potential application of interim orders in the anti-bullying jurisdiction was
discussed by Commissioner Hampton in D.K as follows:4
“[18] This involves the consideration as to whether a prima facie case (or a “serious
question” to be tried) has been made out by the applicant and whether the
inconvenience or injury which the applicant would be likely to suffer if an interim
order were refused outweighs or is outweighed by the injury which the respondent
would suffer if an injunction were granted (the balance of convenience). Further, the
nature of the remedy provisions of s.789FFof the Act should inform the consideration
of the request for interim orders and the nature of any discretion to be exercised.
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However, the purpose of the interim orders, including to preserve the capacity to
advance the substantive application in appropriate circumstances, must also be
considered.
[19] In addition, given the scheme of the Act, interim orders of the nature being
considered here should not be issued lightly. The direct intervention of the
Commission at such an early stage of proceedings should be exercised with
considerable caution. Further, the mere indication that a disciplinary process was
involved in the complaints of workplace bullying, without much more, is unlikely to
trigger the balance of convenience necessary for such action. Each application must be
considered in its own right and circumstances.
[20] I would also respectfully observe that the earlier approach adopted by Gostencnik
DP in Worker A, B, C, D and E v “Automotive, Food, Metals, Engineering, Printing
and Kindred Industries Union” known as the Australian Manufacturing Workers’
Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal,
Plumbing and Allied Services Union of Australia and others, where interim orders
were made in a s.789FC anti-bullying application to prevent the escalation of probable
bullying conduct, is also consistent with the general approach adopted to these
matters.”
(footnotes omitted)
[17] I have adopted an approach consistent with the above decisions.
Grounds of the application
[18] The grounds of the application for interim orders are set out in the email of the
Applicant’s representative dated 18 December 2019, as set out below.
“The basis for the contentions of the Applicant is as follows:
1. It is the position of the Applicant that the continued disciplinary process,
constitutes bullying by management. Given that this claim, if backed by
evidence, would constitute bullying in breach of the Act, the Respondent
should be prevented from terminating the employment of the Applicant as this
would necessarily defeat this application.
2. The Applicant is currently on workers’ compensation with 15 hours a week
capacity for work. The Respondent has been found liable for her injury. The
Applicant is not the first employee to be on workers’ compensation due to the
bullying at work.
3. The allegations raised date from mid-2018 to April 2019 and were not raised
with the Applicant in the correct procedure up until she was due to return to
work.
4. These allegations are as a result of the Applicant raising a grievance about her
colleague, who has a personal relationship with the CEO and has since acted in
a way to terminate the Applicant’s employment, which has occurred on several
occasions.
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5. Please see attached statement from the Applicant and witnesses regarding the
cullying [sic] behaviour at Intereach.”
Serious issue to be determined
[19] In support of its position that there is a serious issue to be determined in this matter,
the Applicant submits:
the Respondent has a significant culture of bullying;
a number of its key staff have been bullied by the CEO Ms Fox and the Senior
Manager Finance Ms Kelly;
the workplace culture was one involving “excessive drinking” and “talking in a
sexual way” at social events and other events;
the Applicant has been “singled out” in being investigated by the Respondent;
the investigation against the Applicant was commenced in response to the
Applicant’s complaint against Ms Kelly, with whom Ms Fox has a “personal
relationship”; and
the continuing disciplinary process involving the Applicant constitutes bullying.
[20] The Respondent submits:
its actions constitute reasonable management action and there is no serious question
to be tried;
it reasonably conducted its investigation into the 16 allegations of sexual misconduct
against the Applicant; and
its investigation into the allegations of misconduct against Ms Kelly, which were
found to be unsubstantiated, was conducted reasonably.
[21] In support of the above submissions, Ms Bahagiar gave comprehensive evidence as to
the chronology of the Respondent’s investigations into both the complaints of misconduct
against the Applicant and those against Ms Kelly. By and large this evidence was uncontested
save for the assertion by the Applicant’s representative that some of the allegations of
misconduct occurred in the context of social events and a culture of workplace drinking and
“talking in a sexual way”. Ms Bahagiar also gave evidence that in her view, the Respondent
investigated the Applicant’s conduct due to complaints made about her conduct and not for
any other reason.
[22] The chronology of the material before me is largely uncontested and is as follows. On
28 April 2019, the Respondent received a complaint against the Applicant.5 On or around 24
June 2019, the allegations were investigated by an external human resources (HR) business,
Total HRM.6 On 21 June 2019, the Applicant made a complaint against Ms Kelly, which was
also referred by the Respondent to its external investigators Total HRM.7 On or around 1 July
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2019, the Applicant submitted a worker’s compensation claim and the Respondent deemed it
inappropriate to continue with the investigation involving the Applicant as the Applicant’s
certificate of capacity indicated that she had no capacity for work.8
[23] On 20 August 2019, the complaint against Ms Kelly was found to be in the most part
unsubstantiated.9 It is uncontested that on or around 15 October 2019, the Applicant received
a certificate of capacity indicating capacity for some form of employment of five hours a day,
three days a week.10 On 6 November 2019, the Respondent wrote to the Applicant setting out
details of the allegation against her.11 In that correspondence, the Respondent advised the
Applicant that the investigation process had resumed and that the serious nature of the
allegations led to the Respondent’s decision to suspend her employment with pay while the
investigation continued. On 19 November 2019, the Applicant made her application for an
order to stop bullying.
[24] Between 19 November 2019 and the hearing of this matter, the parties liaised with a
view to the Respondent providing limited undertakings as to the taking of disciplinary action
against the Applicant in the form of terminating her employment.12
[25] On 5 December 2019, Total HRM provided a report to the Respondent indicating that
14 of the 16 allegations were substantiated, and a copy was provided to the Applicant.13 On
12 December 2019, the Applicant provided a response to the report.14 On 13 December 2019,
the Respondent wrote to the Applicant advising that it was considering terminating her
employment due to the substantiated allegations, and providing her with an opportunity until
20 December 2019 to respond to its show cause letter.
[26] What is evident from the above material is that various allegations about the Applicant
have been investigated by Total HRM and preliminary adverse findings have been made by
the investigator. The Applicant was given an opportunity to provide her views on the
preliminary findings and did so by letter dated 12 December 2019, and has until 1.00pm
tomorrow to respond to the show cause letter issued by the Respondent on 13 December
2019. It is also apparent from the material that the Applicant has been stood down on full pay
(taking into account the worker’s compensation payments).
[27] Although the s.789FC application raises various allegations, the investigation referred
to above, and related disciplinary actions, are central to those allegations.
[28] On the material before me, I am not satisfied that the s.789FC application has prima
facie merit and there is a sufficient likelihood of success to justify the preservation of the
status quo pending further consideration and determination of the substantive matter by the
Commission. I have not reached any concluded view about the matters beyond the prima facie
consideration required at this point. I have also taken into account that there are several
features of the investigation and the preliminary findings that would objectively suggest that
the process was procedurally fair. In my view, the chronology of events as outlined in the
largely uncontested evidence of Ms Bahagiar is indicative of a reasonable course of
management action. That said, the Applicant has failed to demonstrate there is a sufficient
likelihood of success in her application for orders to stop bullying to justify the issue of
interim orders.
Balance of convenience
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[29] The Applicant submits that the balance of convenience favours the issuing of an order
for the following reasons:
if the order is not granted, the Applicant’s employment is likely to be terminated on
20 December 2019;
the Applicant is a single mother with three children;
there are not many work opportunities in the town in which the Applicant resides;
the town is “close knit” which has consequences for the Applicant’s reputation; and
if the Applicant’s employment is terminated and she makes an unfair dismissal
application, she would be unlikely to be reinstated and compensation would not be
an adequate remedy given that the Applicant would potentially be without work for
an extended period of time but would need to continue to support her household.
[30] The Respondent submitted that the balance of convenience favoured the dismissal of
the interim order for the following reasons:
the sexual nature of the allegations against the Applicant present a strong
reputational risk to the Respondent if they are discovered by the community, that
being of a country town as opposed to a metropolitan centre;
the Respondent’s situation is unique as a provider of services to vulnerable members
of society, in particular minors, in a regional geographic location;
the chronology of the matter supports the dismissal of the application for interim
orders;
the allegation of bullying is separate to the investigation into the Applicant’s
conduct;
if the Applicant’s employment is terminated the Applicant would have recourse to
other claims such as unfair dismissal and general protections; and
the antibullying jurisdiction is not to be used to circumvent the employer’s right to
take legitimate disciplinary action against its employees.
[31] The Respondent also took me to several authorities, including Bayly.15 The
Respondent submitted that I ought to distinguish that case because it involved a disciplinary
process which was far less advanced than that in relation to the Applicant, which is near its
conclusion, findings having been made and a show cause letter having been issued.
[32] I also note that in Bayly, the Applicant was medically unfit for work such that she was
unable to participate meaningfully in the investigation process. That is not the case before me.
As discussed above, it is uncontested that the Respondent suspended its investigation relating
to the Applicant’s conduct whilst the Applicant was medically unfit for work. Upon her return
to work, the Applicant was able to participate in the process of the investigation and, with the
assistance of her representative, did so.
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[33] In coming to my conclusion I am mindful that the Commission should exercise
considerable caution in determining whether to issue interim orders of this kind and that it is
undesirable to permit the antibullying jurisdiction to be used to circumvent reasonable
disciplinary action.
[34] I have taken the submissions of both parties into account. What is clear is that, as a
result of the prerequisites of s.789FF of the Act, the dismissal of the Applicant would
significantly compromise, and potentially deny, her capacity to have the s.789FC application
heard and determined. This is a significant factor directly relevant to the balance of
convenience and the exercise of any discretion.
[35] However, there are a range of other competing considerations arising from the
potential prejudice to the Respondent that I have also taken into account. These include that
an interim order would have the effect of creating an obligation upon the Respondent to
continue the Applicant’s employment pending further developments, when in the normal
course it would be open to dismiss her, subject to various notice and other obligations.
Further, the Applicant has a number of claims she could pursue if the Respondent were to
terminate her employment. Ultimately I am not persuaded that the balance of convenience
favours the Applicant in this case.
Conclusion
[36] For the preceding reasons, as a matter of discretion I have decided to dismiss the
application for an interim order.
[37] I will separately issue an order vacating the interim order I issued earlier today which
preserved the status quo pending the hearing of this interim order application.
COMMISSIONER
Appearances:
Ms G Meredith, for the Applicant
Mr A Colquhoun, for the Respondent
Hearing details:
FAIR WORK THE F COMMISSION AUSTRALIA THE SEA
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2019
19 December 2019
Melbourne, in chambers.
Printed by authority of the Commonwealth Government Printer
PR715469
1 Australian Manufacturing Workers’ Union v WW Wedderburn Pty Ltd [2016] FWC 2260, (2016) 258 IR 12, citing Quinn v
Overland [2010] FCA 799.
2 Bayly [2017] FWC 1886.
3 [2016] FWC 2260, (2016) 258 IR 12.
4 [2018] FWC 6691.
5 Witness Statement of Yvette Bahagiar [12].
6 Ibid [17].
7 Ibid [19].
8 Ibid [24].
9 Ibid [26].
10 Ibid [38].
11 Ibid [42].
12 Ibid [51].
13 Ibid [53].
14 Ibid [62].
15 Bayly [2017] FWC 1886
http://www.fwc.gov.au/decisionssigned/html/2016fwc2260.htm
http://www.fwc.gov.au/decisionssigned/html/2017fwc1886.htm
http://www.fwc.gov.au/decisionssigned/html/2016fwc2260.htm
