Industry Knowledge.

Mr Feyzullah Kaya v Team Global Express Pty Ltd, Salvatore (Sam) Carnibella, Christopher Catania [2023] FWC 2685

Fair Work Commission 

Application for an order to stop bullying

“Bad men need nothing more to compass their ends, than that good men should look on and do nothing.”

(The discussion below is for educational and information purposes only. It does not constitute legal advice. Professional legal advice should be sought before taking or not taking any action based on the below)

  1. Mr Kaya alleged bullying at the workplace by three co-workers. They were Mr Carnibella, Mr Catania, and Mr Dimitrovski (Mr Kaya’s supervisor).
  2. Mr Kaya suffered from sleeplessness, anxiety and panic attacks resulting from, he said, the bullying at work.
  3. The matter was heard by Commissioner Lee.
  4. Mr Kaya worked for the employer at a site (Webb Dock, Melbourne) responsible for the trans-shipment of freight to and from Tasmania.
  5. Mr Kaya first raised allegations of bullying in February 2022. In response, the employer undertook investigations into the alleged bullying and found most of the allegations made by Mr Kaya against Mr Catania were substantiated. The employer did not accept the allegations of bullying against Mr Carnibella and Mr Dimitrovski.
  6. It was found Mr Catania:
    • Told Mr Kaya to “f**I off”.
    • Called Mr Kaya a “dickhead”.
    • Touched / tapped his finger on Mr Kaya’s face.
    • Touched Mr Kaya inappropriately, on numerous occasions, by grabbing Mr Kaya’s bum.
    • Swore and spoke aggressively, on numerous occasions, to Mr Kaya.
  7. The employer implemented several changes to the way in which Mr Kaya and Mr Catania worked, aimed at reducing or eliminating the risk of bullying. Commissioner Lee said, “It is not clear what orders the Applicant would have the Commission make that would extend beyond the actions the Employer has already taken.”
  8. The employer:
    • Allocated Mr Kaya and Mr Catania to different parts of the distribution centre to minimise any interaction.
    • Trained relevant staff in preventing workplace discrimination, bullying and harassment.
    • Directed the relevant employees be stationed in different locations in the warehouse, including requirements they eat separately and use different bathrooms.
  9. The employer also issued Mr Catania with a written warning.
  10. Mr Kaya took a long period of leave from work and did not work from 10 June 2022 until 22 May 2023. He left work again on 1 June 2023.
  11. After Mr Kaya returned to work on 22 May 2023, the employer conducted a further investigation into allegations Mr Catania had continued to bully Mr Kaya after being issued with the written warning. The further investigation concluded Mr Catania did engage in further bulling and had:
    • Spoken to other colleagues about Mr Kaya, calling him a “lazy c***” including saying, in the presence of Mr Kaya “I told them to put me in charge and I’ll make this c*** work”.
    • Falsely informing Mr Kaya’s supervisor that Mr Kaya was letting a trainee do all the work instead of working with him.
    • Yelling “DOGGGGG!” at Mr Kaya.
  12. Mr Catania resigned his employment before the conclusion of disciplinary action being taken by the employer in respect of the findings into the further bullying.
  13. After his resignation, Mr Catania sent Mr Kaya a Facebook messenger message saying, “Hey scumbag I beet u u didn’t get me the sack I’m retired go and learn and learn to speak English or f*** off”. The employer sent Mr Catania a “Notice of cease and desist” in response.
  14. In relation to Mr Carnibella and Mr Dimitrovski, the employer conducted further investigation into allegations against them. As a result, Mr Dimitrovski was issued a written warning.
  15. The employer also implemented “comprehensive workplace behaviours” training in 2022 and 2023, and supervisors and managers were trained on “the expectations of a leader in addressing inappropriate workplace behaviour”.
  16. The employer prepared for Mr Kaya to return to work by implementing arrangements for Mr Kaya and Mr Carnibella to work in different areas, use different lunchrooms and bathrooms and start work at different times. Mr Kaya would no longer report to Mr Dimitrovski.
  17. The employer said Mr Kaya’s application for an order to stop bullying should be dismissed because of the initiatives implemented by the employer and Mr Catania’s resignation. Commissioner Lee agreed.
  18. Commissioner Lee also said:
    • Mr Catania’s actions “most certainly constitute bullying behaviour”. It was “reprehensible and repeated” and “involved physical aggression and verbal abuse”.
    • He did not think Mr Carnibella and Mr Dimitrovski’ s conduct was bullying behaviour.
    • The employer introduced “a number of significant initiatives that have responded to the claims” made by Mr Kaya and he was satisfied the employer had “taken the necessary steps to remove the risk of bullying”.
    • “Overall, the history of this matter demonstrates … [Mr Kaya] … been let down by his employer” and highlighted the conduct of Mr Carnibella who did not support Mr Kaya and Mr Dimitrovski who did not do enough to protect Mr Kaya.
    • There was a “failure of the local leadership in the organisation, those who knew what was happening, to do something about it”.
    • “One can chose to ignore or tolerate poor behaviour in the workplace but there are real consequences when that occurs.”