Achini Iroma Jayarathna - [2022] FWC 3008

[2022] FWC 3008

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Achini Iroma Jayarathna

(SO2022/266)

DEPUTY PRESIDENT BELL

MELBOURNE, 25 NOVEMBER 2022

Application for an FWC order to stop bullying – jurisdiction – s.789FF(1)(b)(i) – whether risk Applicant will continue to be bullied at work by persons named – no risk - application dismissed.

On 7 June 2022 Mrs Achini Jayarathna (Applicant) lodged an application (the Application) with the Fair Work Commission (Commission) pursuant to s.789FC of the Fair Work Act 2009 (the Act) for an Order to Stop Bullying. The Application named Telstra Corporation Ltd (Telstra, the Employer) and then manager (Manager) and a co-worker (Co-Worker) (together, the Persons Named).

The Applicant says she was bullied at work and the Persons Named deny that they have engaged in the alleged behaviour. In its Form F73 Response, the Employer also raised the objection that the alleged bullying was reasonable management action, carried out in a reasonable manner. Telstra also contends that the matter ought to be dismissed under s.587 of the Act because it has no reasonable prospects of success.

This decision addresses a threshold matter – whether I could be satisfied that there is a risk the Applicant will continue to be bullied - that would be essential to establish before any order under s.789FF(1) could be made. I explain this further below.

On the material before me, there are circumstances that Telstra contends in its ‘Form F73’ response that have reduced or eliminated the risk of bullying. These circumstances include that the Applicant has not been in the workplace since late 2021, that she has not worked with, or reported to, the Persons Named since August 2021, and there has been a change in reporting lines.

The matter was the subject of a conference before me on 28 July 2022 to explore any opportunities for the parties to reach an agreed resolution to the matters raised in the Application. The matter did not resolve.

Following the conference, I drew the parties’ attention to a threshold jurisdiction issue in regard to s.789FF(1)(b)(i) of the Act, which provides that the Commission may only make an order to stop bullying where the Commission finds that there is a risk that the worker will continue to be bullied at work. Directions were set down for the filing of evidence and submissions.

The Applicant filed a short statement for herself, and also relied upon material previously filed as part of her application. Telstra, on behalf of itself and the Persons Named, filed a witness statement of Ms Anne Galinas, the Head of Credit Risk & Portfolio Treatment, Global Business Services. The witnesses gave some brief further oral evidence. Neither were required for cross-examination, although I asked some questions of each.

Applicable principles

Part 6-4B of the Act is titled “Workers bullied or sexually harassed at work”. There is no dispute…

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

AGLC: Achini Iroma Jayarathna [2022] FWC 3008
Case: [2022] FWC 3008
Decision Date: 25 NOVEMBER 2022

CaseChat Overview and Summary

The applicant, Mrs Achini Jayarathna, sought an order under the Fair Work Act 2009 (Cth) to stop bullying at her workplace. She alleged that she had been bullied by her manager and a co-worker while employed by Telstra Corporation Ltd. The employer, Telstra, and the two named individuals denied the allegations. The employer also raised the objection that the matter should be dismissed under section 587 of the Act because it had no reasonable prospects of success.

The Deputy President of the Fair Work Commission considered the threshold matter of whether there was a risk that the applicant would continue to be bullied at work, which would be essential to establish before any order under section 789FF(1) could be made. The Deputy President noted that the applicant had not been in the workplace since late 2021 and had not worked with or reported to the named individuals since August 2021. The Deputy President concluded that there was no risk of the applicant continuing to be bullied at work as she was not at work and there was no meaningful prospect of her return to work in the short to medium term.

The Deputy President also considered the measures that Telstra had identified for a return-to-work scenario, which would be sufficiently effective to remove any risk of the applicant continuing to be bullied by the named individuals. The Deputy President concluded that the application had no reasonable prospects of success, and exercised their discretion to dismiss the application under section 587(1)(c) of the Act.

The Deputy President dismissed the applicant's application and an order to that effect will be issued separately. The applicant appeared on her own behalf, and the respondent was represented by H Small. The matter was heard in Melbourne on 16 November 2022.

Orders