STOP BULLYING ORDER

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2024 WAIRC 00821

DELIVERED : Tuesday, 17 September 2024

FILE NO. : S 7 OF 2023

Applicant

AND

East Metropolitan Health Service

Respondent

CatchWords : Industrial Law (WA) – Leave to Amend Application – Stop Bullying Orders – Regulation 62

Legislation : Industrial Relations Act 1979 (WA)

  Industrial Relations Commission Regulations 2005 (WA)  

Result : Application to Amend Application Refused

Representation:

Applicant : Mr T Caspersz (of counsel)

Respondent : Mr J Carroll (of counsel)

Case(s) referred to in reasons:

Queensland v JL Holdings (1997) 189 CLR 146

Zoran Momirovski, Anthony Douglas, Roberto Serafini, Peter Naumcevski, Matthew Egan [2023] FWC 3299.

Reasons for Decision

1         Mr Tran claims that he has been bullied at work and has applied for orders from the Western Australian Industrial Relations Commission (the Commission) under s 51BM of the Industrial Relations Act 1979 (WA) (the IR Act) to change the conduct of his employer.

2         The East Metropolitan Health Service (EMHS) opposes the granting of such orders on the basis that the conduct Mr Tran complains of is reasonable management action.

3         The issue presently before the Commission concerns Mr Tran’s application to amend his application for a second time.

Procedural Background

4         On 30 June 2023, Mr Tran applied to Commission for the following orders to be issued pursuant to s 51BM of the IR Act (stop bullying orders):

For A to stop treating me with prejudice;

For A to allow me to return to the CPCAs;

For A to accept the findings of the workplace investigation; and

For A to stop treating me as if I am guilty of these allegations.

5         Subsequently, on 8 October 2023, Mr Tran applied to amend his application.

6         The original application identified ‘A’, however because of a subsequent amendment to the application being granted, the parties agreed that the application against ‘A’ ought to be dismissed and the Commission directed that the reference to the person be anonymised.

1st Application to Amend (8 October 2023)

7         On 8 October 2023, Mr Tran applied to amend his application by amending the basis of his application to:

1. Unreasonable Behaviour

Mr Tran claims EMHS is perpetuating the false belief that Mr Tran:

1. has committed an offence, and

2. is about to commit an offence, and

is endangering human safety, and

3. may be endangering human safety.

By relocating Mr Tran from the Central Patient Care Assistant position, and restricting him to a Ward position,

2. What makes this behaviour unreasonable is that EMHS:

a) have grossly strayed from their own policies and procedures, and usual practices.

b) have acted with fraudulent information.

c) decisions were bias, irrational, and unjustified.

d) decisions are prejudicial to Mr Tran.

e) Ms Mir agreed to have her VRO application against Mr Tran dismissed.

f) Ms Mir withdrew her complaint against Mr Tran with EMHS, and the Police.

g) conducted their own investigation, resulting in all allegations not substantiated.

h) the Police conducted their own investigation, resulting in no charges being laid against Mr Tran.

i) initially indefinitely suspended Mr Tran from the workplace.

j) Mr Tran’s suspension was excessive prejudicial to EMHS decision to relocate him.

3. EMHS unreasonable behaviour is repetitive because, EMHS maintain their refusal to return Mr Tran back to the Central Patient Care Assistant position because:

a) Ms Mir and Mr Tran cannot be in the same work location.

b) Due to the nature of the allegations Ms Mir alleged against Mr Tran.

c) EMHS are ensuring a safe and respectful environment workplace for all employees.

d) Due to the complaints Ms Mir lodged against Mr Tran lodged against him.

e) The VRO against Mr Tran, Ms Mir applied for

f) The complaint Ms Mir made to the Police.

4. EMHS behaviour is creating a risk to the health of Mr Tran is founded by:

a) EMHS request that Mr Tran provide consent for his Doctor to provide information regarding Mr Tran’s illness and subsequent return to the workplace.

b) EMHS threat to refer Mr Tran to a Medical Practitioner to undertake a Fitness for Work Assessment if he did not consent to his Doctor to provide EMHS further information.

b) EMHS demand for Mr Tran to provide a medical certificate certifying he is fit to return to work.

5. The fact that Mr Tran was suspended, but now on personal leave without pay justified with a medical certificate from his doctor, does not prove Mr Tran has, is, and continue to not be bullied at work.

6. It is the reasonable belief of a doctor that it would be detrimental to Mr Tran's mental health that he physically attends work at this time.

7. Due to EMHS unreasonable behaviour being of a non-physical nature, Mr Tran respectfully ask the commission consider Mr Trans physical attendance at work immaterial, for Mr Tran needing to be physically at work, to be bullied at work.

8         Mr Tran also sought to amend the remedy and orders to:

Remedy

8. Mr Tran respectfully ask the Commission to consider ordering EMHS to return Mr Tran back to the Central Patient Care Assistants position, this would effectively cease EMHS unreasonable, repetitive, behaviour to Mr Tran.

9         The EHMS and A consented to the amendments sought and submitted that the applications against A ought to be dismissed given the amended application did not contain any allegations against her. At the hearing, Mr Tran agreed to his application against A being dismissed.

10      On 3 November 2023, Mr Tran’s application was amended in the terms he sought and the application against A was dismissed.

11      The application for stop bullying orders now seek orders from the Commission for Mr Tran to be returned to the Central Patient Care Assistants position based on the matters set out in paragraph [7] above.

2nd Application to Amend (7 March 2024)

12      On 7 March 2024, Mr Tran sought to further amend his application by:

1. Deleting points 4-8; and
2. Including new points 4 -10

13      The amended application, if approved, would then read (strike through for the text to be deleted and bold for the text to be added):

1. Unreasonable Behaviour

Mr Tran claims EMHS is perpetuating the false belief that Mr Tran:

1. has committed an offence, and
2. is about to commit an offence, and

is endangering human safety, and

3. may be endangering human safety.

By relocating Mr Tran from the Central Patient Care Assistant position, and restricting him to a Ward position,

2. What makes this behaviour unreasonable is that EMHS:

a) have grossly strayed from their own policies and procedures, and usual practices.

b) have acted with fraudulent information.

c) decisions were bias, irrational, and unjustified.

d) decisions are prejudicial to Mr Tran.

e) Ms Mir agreed to have her VRO application against Mr Tran dismissed.

f) Ms Mir withdrew her complaint against Mr Tran with EMHS, and the Police.

g) conducted their own investigation, resulting in all allegations not substantiated.

h) the Police conducted their own investigation, resulting in no charges being laid against Mr Tran.

i) initially indefinitely suspended Mr Tran from the workplace.

j) Mr Tran’s suspension was excessive prejudicial to EMHS decision to relocate him.

3. EMHS unreasonable behaviour is repetitive because, EMHS maintain their refusal to return Mr Tran back to the Central Patient Care Assistant position because:

a) Ms Mir and Mr Tran cannot be in the same work location.

b) Due to the nature of the allegations Ms Mir alleged against Mr Tran.

c) EMHS are ensuring a safe and respectful environment workplace for all employees.

d) Due to the complaints Ms Mir lodged against Mr Tran lodged against him.

e) The VRO against Mr Tran, Ms Mir applied for

f) The complaint Ms Mir made to the Police.

4. EMHS behaviour is creating a risk to the health of Mr Tran is founded by:

a) EMHS request that Mr Tran provide consent for his Doctor to provide information regarding Mr Tran’s illness and subsequent return to the workplace.

b) EMHS threat to refer Mr Tran to a Medical Practitioner to undertake a Fitness for Work Assessment if he did not consent to his Doctor to provide EMHS further information.

b) EMHS demand for Mr Tran to provide a medical certificate certifying he is fit to return to work.

5. The fact that Mr Tran was suspended, but now on personal leave without pay justified with a medical certificate from his doctor, does not prove Mr Tran has, is, and continue to not be bullied at work.

  6. It is the reasonable belief of a doctor that it would be detrimental to Mr Tran's mental health that he physically attends work at this time.

7. Due to EMHS unreasonable behaviour being of a non-physical nature, Mr Tran respectfully ask the commission consider Mr Trans physical attendance at work immaterial, for Mr Tran needing to be physically at work, to be bullied at work.

Remedy

8. Mr Tran respectfully ask the Commission to consider ordering EMHS to return Mr Tran back to the Central Patient Care Assistants position, this would effectively cease EMHS unreasonable, repetitive, behaviour to Mr Tran.

4. By way of further particulars of the matters referred to in points 1, 2 and 3 above, and in the alternative, the applicant says By way of further particulars of the matters referred to in points 1, 2 and 3 above, and in the alternative, the applicant says that the behaviour of EMHS towards him was repeated unreasonable behaviour of individuals or a group of individuals (management group) acting for and on behalf of EMHS when —

a) The direction of Shelley Vivian on 9 September 2022 to not attend the workplace to perform work was not lawful or reasonable; further, not given in a reasonable manner in that it was not marked confidential and was copied to other persons without explanation.

b) There was no delegated power from the employing authority for Lesley Bennett to suspend the applicant on 9 September 2022 under s 164(1) of the Health Services Act 2016 (WA) (HS Act); further, the suspension was imposed in an unreasonable manner in that no reasons were provided at the time, and the applicant was not paid for effectively being placed on call under cl 16.4 of the WA Health System – United Workers Union (WA) – Hospital Support Workers Industrial Agreement 2020 (Agreement).

c) No decision had been made by the employing authority under s 162(a), HS Act and, thus, Jason Ellis had no power to conduct the investigation and make decisions, further, the investigation was not caried out in a reasonable manner in that there was no timely notification to the applicant of particulars of the allegations and the investigation was not carried out expeditiously.

d) Mr Ellis’ decision on 11 April 2023 to propose the Improvement Actions (Actions) and to determine that the applicant not work with Sumaira Mir (Ellis decision) was unreasonable, further, not carried out in a reasonable manner, in that:

i. there was no power for such under s 162(a), HS Act as the disciplinary matter had been dealt with by the findings that the allegations were not substantiated (Findings);

ii. the applicant was treated less favourably than Sumaira Mir;

iii. the applicant was denied procedural fairness as no allegations had been put to him about unacceptable behaviour requiring the Actions;

iv. the applicant should have been notified that the suspension ceased to have any effect under s 164, HS Act on the Findings having been made;

v. the applicant was denied procedural fairness to respond to the Ellis decision; further, as no particulars were provided of the alleged “Nature of the allegations” or the source of the asserted respondent’s commitment and how such matters justified the Ellis decision, and the applicant was not consulted about the roster change in accordance with cl 13.1(a) of the Agreement.

e) Mr Ellis confirmed the Actions and the Ellis decision on 27 April 2023 when, given the matters stated in the preceding paragraph, there was no power to do so, further the applicant was treated less favourably than Sumaira Mir and the applicant was denied procedural fairness.

f) On 12 May 2023, Dori Lombardi (Ms Lombardi) purported to lift the suspension when there was no power to so under s 164, HS Act, the suspension having ceased to be of effect when Mr Ellis made the Findings.

g) On June 2023, Ms Lombardi gave effect to the Ellis decision (Lombardi decision) when there was no proper reasons for doing so given the matters referred to above concerning the Ellis decision; further, the change of roster was damaging action taken against the applicant because he made a complaint against Sumaira Mir within the meaning of s 97A(1), Industrial Relations Act 1979 (WA) (IR Act).

h) Ms Vivian’s direction on 2 June 2023 that the applicant work on the RPH Trauma Unit was unreasonable given the matters referred to in the preceding paragraph.

i) Jane van den Herik denied the applicant fairness by failing to assess his complaint against Sumaira Mir dated 4 September 2022 in a timely fashion.

5. The repeated unreasonable behaviour occurred while the applicant was at work in that, at all material times, the applicant was in effect complying with EMHS’ instructions to not attend the workplace to actively perform work.

6. It can be inferred from the nature of the behaviour complained of that it created a risk to the health and safety of the applicant in that it created a risk to the applicant’s mental health for the purposes of s 51Bl(1), IR Act.

7. The applicant was bullied at work by reason of the matters set out above within the meaning of s 51Bl(1), IR Act.

8. Given the nature of the repeated unreasonable behaviour described above, it can be inferred that the applicant had a reasonable basis for holding a belief at the time that he lodged his application that he had been bullied at work for the purposes of s 51BJ, IR Act.

9. Given that the applicant’s roster change had not been withdrawn, there is a risk that the applicant will continue to be bullied at work by one of more individuals acting on behalf of the EMHS insisting on him working the changed roster.

10. The applicant seeks that the Commission order that the EMHS take all necessary steps to withdraw the change of the applicant’s roster and to re-instate him to work on the Central Patient Care Assistant’s roster.

14      Mr Tran submits that the amendments clarify his claim before the Commission. Mr Tran says there has been no undue delay in bringing the 2nd Amendment in circumstances where he only relatively recently secured legal representation and in the following conferral between the parties it became apparent to Mr Tran’s legal representative that an amendment of the application ought to be made.

15      The EMHS submits that the application as it currently stands is an application that asserts that the EMHS behaved unreasonably when it changed Mr Tan’s roster and seeks for orders to reinstate Mr Tan to his original roster. The EMHS contends that the amendments it opposes have no relevance nor link to the orders sought.

16      The EMHS contends that the proposed 2nd Amendment makes allegations against at least five individuals who are not named parties to the application and makes factual allegations in respect of matters which are not presently part of the application. The EMHS submits that if the amendment was to be allowed each of those individuals would need to be joined to the application. Each individual respondent would be entitled to file a response, submit evidence, make submissions, and would be entitled to be heard on the application. The present respondent would be entitled to file an amended response, lead further evidence and file further written submissions. This would require the current programming orders be vacated.

17      The EMHS further submits that the amendment sought by Mr Tran exceed the powers of the Commission allowed by s 27(1)(l) of the IR Act. The EMHS says that granting the amendment and consequentially serving the amended application upon the individual respondents named effectively denies those individual respondents an opportunity to have the application/s against them struck out.

18      The EMHS contends that the proposed 2nd Amendment is vexatious because there is no proper basis for the assertion that there was no delegated power for certain decisions made.

19      The EMHS says that Mr Tran’s claim that the 2nd amendment is to clarify his claim is not correct and that the 2nd Amendment is in effect an entirely new claim that raises issues of a broader range of alleged conduct against several individuals.

20      The EMHSs says that Mr Tran has failed to understand that improvement action can be issued were there are not findings of breach of discipline.

What I Must Decide

21      I must decide whether to exercise the powers of the Commission pursuant to s 27(1)(l) of the IR Act to grant Mr Tran leave to amend their application in the terms sought.

2nd Amendment and Additional Respondents

22      Mr Tran asserts that the behaviour complained of was undertaken by a group of individuals and constitutes bullying behaviour on a proper interpretation of the IR Act. The course of conduct is to be assessed with regard to the tone and context in which the interactions took place. In support of this contention, Mr Tran refers the Commission to Zoran Momirovski, Anthony Douglas, Roberto Serafini, Peter Naumcevski, Matthew Egan [2023] FWC 3299.

23      Mr Tran contends it is not necessary for each individual to be named as a respondent and submits that in the circumstances reg 62 of the Industrial Relations Commission Regulations 2005 (WA) (the IR Regulations) does not apply.

24      Mr Tran says that it is not necessary to serve the individuals referred to in paragraph 4 of his 2nd Amendment Application because he is not seeking orders against the individuals. The identification of the individuals is for the purpose of clarifying the conduct of the EMHS, the individuals are under the control of the EMHS and can be called as witnesses in its defence and there is no difference between the evidence being lead of the conduct complained of in relation to the application as it currently stands, and the amended particulars being granted.

25      The EMHS submits that reg 62 (1) of the IR Regulations provides that a stop bullying application referred to the Commission by a worker must provide details of respondents including each individual alleged to be bullying and unless the Commission directs otherwise each respondent must be served a copy of the application and each respondent who wishes to respond must file a response within seven days of being served.

26      The Commission has the power to amend grounds of appeal or to add new grounds, under s 27(1)(l) of the IR Act, to ‘allow the amendment of any proceedings on such terms as it thinks fit.’

27      The Commission has discretion in these matters and is required to exercise its powers in accordance with s 26 (1) of the IR Act:

26   Commission to act according to equity and good conscience

(1)                In the exercise of its jurisdiction under this Act the Commission –

(a)                Must act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms; and

28      In Queensland v JL Holdings (1997) 189 CLR 146, at 169-170, Kirby J set out the considerations that guide the exercise of the discretion in determining an amendment application as those in favour of granting leave to amend include:

i. The amendment/s sought is the only way in which the true issues and the real merits, factual and legal, can be litigated and artificiality avoided;

ii. The relevant oversight is adequately explained;

iii. The proposed amendment is of considerable importance to the rights of a party, particularly where it provides a complete answer to the claim;

iv. The oversight was wholly accidental;

v. The product of unavoidable human error;

vi. Any fault is attributable to the party’s legal representatives;

vii. That cost orders or the imposition of other conditions could adequately rebalance the competing claims to justice;

viii. New legal representatives have perceived an important new point; and

ix. The hearing date is not jeopardised and parties will have adequate time to undertake the work necessary to meet the amendment/s.

And those considerations that would favour refusal of leave to amend include:

i. Absence of explanation for late application;

ii. Blamelessness of the resisting party and the extent to which the applicant is at fault in its breach of clear directions;

iii. The strain which litigation may place upon those involved and the natural desire of most litigants to be freed, as quickly as possible, from the anxiety, distraction and disruption which litigation causes;

iv. The proximity of hearing date;

v. The ‘length of time that the proceedings have been pending in that, the longer the time since commencement, the more reasonable it is to expect’ that the matter should have been raised earlier; and

vii. The extent to which a new issue would give rise to a substantial and new case in reply.

29      In the 2nd Application to Amend at paragraph 9, Mr Tran alleges that the individuals identified in paragraph 4 have engaged in bullying toward him and that there is a risk that he will continue to be bullied by these individuals:

9. Given that the applicant’s roster change had not been withdrawn, there is a risk that the applicant will continue to be bullied at work by one of more individuals acting on behalf of the EMHS insisting on him working the changed roster. (my italics)

30      This statement clearly refers to allegations that the individuals identified in paragraph 4 of the 2nd Application to Amend engaged in bullying conduct, albeit on behalf of EMHS. The allegations are that individuals bullied Mr Tran and there is a risk that they will continue to bully him. It is a clear and unambiguous allegation.

31      The regulations require that the details of each individual who is alleged to have engaged in bullying behaviour or conduct and that those individuals are served with the application and are provided with an opportunity to respond:

62. Stop bullying or sexual harassment applications by workers

1)   A stop bullying or sexual harassment application referred to the Commission by a worker under section 29(1)(e) of the Act must —

a)    provide details of the following respondents to the application —

i. the person conducting a business or undertaking for whom the worker carries out work;

ii. each individual alleged to be bullying or sexually harassing the worker at work;

iii.   if the behaviour of an individual referred to in subparagraph (ii) occurs in relation to that individual’s work — the person conducting a business or undertaking for whom the individual carries out work;

and

b) otherwise be in the approved form; and

c)  have attached to the application the particulars approved by the Chief Commissioner from time to time.

2) Unless the Commission otherwise directs, the Registrar must serve a copy of an application that is filed on —

a) the respondent referred to in subregulation (1)(a)(i) as soon as practicable after the application is filed; and

3) each respondent referred to in subregulation (1)(a)(ii) and (iii) within 1 day after the application is served under paragraph (a). A respondent who is served with an application and who wants to respond to the application must file a response in the approved form within 7 days after being served with the application.

4) A response must, in summary form, specify the facts on which the respondent relies and specifically admit or dispute, either with or without qualification, each part of the application.

5) Unless the Commission otherwise directs, the Registrar must, within 7 days after a respondent files a response, serve a copy of the response on each other party.

6) At a hearing by the Commission of a stop bullying or sexual harassment application, a party who was served with a copy of the application and who did not file a response within the time allowed under these regulations may only be heard on the matters raised in the application and not on any other matter.

 [Regulation 62 inserted: SL 2022/75 r. 10.]

32      Mr Tran’s submissions that the identification of individuals engaged in the conduct complained of flows from the fact that EMHS is a corporate body that acts through individuals. Mr Tran says that he does not seek to have orders made against the individuals and seeks only to provide new particulars. Therefore, Mr Tran contends reg 62 of the IR Regulations does not apply to the proposed 2nd Amendments Application.

33      Regulation 62 of the IR Regulations requires that an application provides details of reg 62 (1)(a)(i) of the IR Regulations that provides for the corporate body to be a respondent party where it is the person conducting the business or undertaking for whom Mr Tran carries out work. I find that conversely to the submissions of Mr Tran, s 62 (iii) of the IR Regulations provides for the corporate body to be identified as a respondent party where the behaviour of an individual alleged to have bullied occurs in relation to individual’s work.

34      Regulation 62 of the IR Regulations uses the term ‘must’ unless otherwise directed by the Commission. Mr Tran is not seeking that the Commission direct that the individuals identified in the 2nd Application to Amend not be served. Mr Tran says it is not necessary to serve the individuals.

35      I find that reg 62 of the IR Regulations does apply to the proposed paragraph 4 of the 2nd Amendment and by its terms seeks to add additional respondents in terms of the IR Act and regulations.

36      The effect of allowing the amendment would be to allow the initiating of applications against additional respondents and in these circumstances exceeds that power to amend within s 27(1)(l) of the IR Act.

37      It is recognised that Mr Tran has had the benefit of legal assistance relatively recently and this would favour granting the amendment of his application. However, the effect of granting the amendments would give rise to substantial and new case/s in reply, in that several individual respondents would be added. The length of time proceedings has been pending for some time and this has not been the fault of the EMHS. Consistent with s 26 (1)(a) of the IR Act, I find that the granting of the amendments sought effectively initiate new proceedings and it would not be equitable to grant leave to amend the application.

38      For the reasons set out above, the application to amend is refused.