Abigail Valenzuela - [2024] FWC 2072

[2024] FWC 2072

FAIR WORK COMMISSION

INTERIM DECISION

Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Abigail Valenzuela

(AB2024/525)

COMMISSIONER MATHESON

SYDNEY, 2 AUGUST 2024

Application for an FWC order to stop bullying – application for interim orders – application dismissed.

On 12 July 2024 Ms Abigal Vanelzuela (Applicant) applied for orders to stop bullying at work. The Applicant is an employee of the Commonwealth of Australia (Employer/Respondent) working for the Australian Taxation Office. There are three persons named in the Form F72 application who the Applicant alleges has bullied her at work (Persons Named).

This decision deals with an Application made by the Applicant for interim orders in relation to that application.

Background

The Applicant is an APS 5 Economist, whose employment with the Employer commenced on 4 December 2023.[1] The Applicant was initially on a 6 month probation period set to end on 3 June 2024.[2] The Applicant’s probation was extended and the Applicant was placed on a Performance Improvement Plan (PIP) that commenced on 11 June 2024.[3] On 8 July 2024 the final PIP meeting was conducted and it was proposed the Applicant’s employment be terminated.[4] The Applicant has been absent from work on paid miscellaneous leave since 24 July 2024.[5] On 25 July 2024 the Employer wrote to the Applicant notifying her that it was considering terminating her employment and inviting a response by 1 August 2024.

As noted above on 12 July 2024 the Applicant made her application in AB2024/525 to the Commission. The matter was allocated to my Chambers on 26 July 2024.

On Friday, 26 July 2024 the Applicant requested that the matter be listed for an urgent conference and a conference was held for this purpose on Tuesday, 30 July 2024. During that conference the Applicant indicated that she intended to make an application for urgent interim orders on the basis that the termination of her employment was impending. I requested that the Applicant make her application in writing specifying the precise nature of the interim orders sought.

Later on 30 July 2024 the Applicant filed a Form F1 Application stating:

‘FAIR WORK ACT 2009 - SECT 370
(b) the general protections court application includes an application for an interim injunction.

In relation to FWC applications AB2024/525 and C2024/4865, I seek that the Fair Work Commission make a determination on whether there was bullying, occupational health and safety, discrimination breaches about general protections at work, by the respondents on the applicant before the ATO terminates the applicant’s employment at the ATO as APS5 Economist on the grounds of performance involving conduct at work about communication to the ATO of submissions that have merit on ATO deliverables.

The applicant would like to call witnesses Sophia Wang, Shaun The and Olivia working in Caroline’s team to give an account of the applicant’s conduct and technical capacity and performance in the 6 months at ATO’.

The orders sought were expressed in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FWC 2072
Decision Date: 2 AUGUST 2024

CaseChat Overview and Summary

Abigail Valenzuela has applied to the Fair Work Commission for an order to stop bullying in the workplace. Valenzuela was employed by the Commonwealth of Australia as an APS 5 Economist. She was on probation from 4 December 2023 to 3 June 2024. Her probation was extended to 3 September 2024 and she was placed on a Performance Improvement Plan (PIP) from 11 June 2024 to 11 July 2024. Valenzuela applied to the Commission on 12 July 2024 for orders to stop bullying at work. She has applied for interim orders to prevent her employer from terminating her employment until the substantive application is heard and determined. Valenzuela's application for interim orders was dismissed by Commissioner Matheson. The Commissioner found that Valenzuela had not been bullied at work by her employer or by her managers. The Commissioner found that Valenzuela had not been subject to unreasonable work demands and that her managers had not acted in an unreasonable or inappropriate manner. The Commissioner found that Valenzuela had not been subject to any conduct that could be characterised as sexual harassment. The Commissioner found that the conduct alleged by Valenzuela did not create a risk to health and safety.

Orders