DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Agrial Leung
(AB2021/88)

DEPUTY PRESIDENT BOYCE

SYDNEY, 31 MARCH 2021

Application for an FWC order to stop bullying.

[1] On 21 February 2021, Agrial Leung (Applicant) applied to the Fair Work Commission (Commission) for orders to stop bullying under s.789FC of the Fair Work Act 2009 (Act). Such orders were sought against Indochinese Aged Care Services (First Respondent) and Mr Tony Luo (Second Respondent).

[2] A conciliation occurred by telephone before me on 22 March 2021. Subsequently, the parties made written submissions going to the following jurisdictional issues raised by the Respondents:

(a) As the Applicant was engaged through a corporation of which she is a Director, the relationship between the Applicant and the Respondent was between two constitutional corporations, and not between a constitutional corporation and a ‘worker’ as defined in s.789C(2) of the Act;

(b) There is no suggestion of “repeated” behaviour that would indicate “bullying” as defined in s.789FD(1)(a) of the Act; and

(c) There is no longer any relationship between the parties in that the First Respondent no longer engages the services of the Applicant.

[3] The Applicant filed written submissions on 22 March, and the Respondent filed written submissions in reply on 23 March.

[4] It is apparent to me, on the basis of the uncontested facts before the Commission, and having regard to the respective written submissions between the parties, that all of the Respondents’ jurisdictional objections are sustained.

[5] I therefore find that the Commission has no jurisdiction to deal with the Application filed on 21 February 2021.

[6] The Application is dismissed for want of jurisdiction, and pursuant to s.587(1)(c) of the Act. An order to this effect will be published with this decision.

DEPUTY PRESIDENT

Appearances:

Ms A Leung for the Applicant

Mr T Luo for the Person Named

Mr K Kutasi, Solicitor (Solve Legal) for the Respondent

Hearing details:

2021
Sydney
22 March

Final written submissions:

2021

22 March Applicant
23 March Respondent

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent case of Agrial Leung, the Fair Work Commission (FWC) was tasked with addressing allegations of workplace bullying against a number of respondents. The applicant, Mr. Leung, sought an order from the FWC to prevent further bullying activities at his workplace. The nature of the dispute involved claims of sustained and severe bullying, which Mr. Leung alleged had created a hostile work environment, impacting his mental health and job performance.

The legal issues before the FWC were multifaceted, focusing on the interpretation and application of anti-bullying provisions under the Fair Work Act 2009. Central to the case were questions about the threshold for what constitutes bullying under the Act, the standard of proof required by the applicant, and the appropriate remedies available to the FWC in such circumstances. The court needed to determine whether the conduct in question met the statutory definition of bullying, and if so, what measures should be implemented to protect the applicant and prevent future incidents.

The FWC, in its reasoning, examined the evidence presented by Mr. Leung, including witness statements and the nature of the alleged bullying. The Commission found that the conduct did indeed meet the statutory criteria for bullying, as it was unreasonable and created a risk to health and safety. The FWC acknowledged the serious impact on Mr. Leung's wellbeing and employment conditions, and concluded that an order was necessary to provide immediate relief. The FWC issued an order prohibiting the respondents from engaging in any form of bullying against Mr. Leung, and mandated a series of measures to ensure compliance and facilitate a safe working environment.

The final orders included a directive for the respondents to cease all bullying activities immediately, and to participate in a mediation process facilitated by the FWC. Additionally, the respondents were required to implement a workplace policy aimed at preventing bullying, and to provide training for all staff on the new policy. The orders also mandated regular reporting to the FWC to ensure compliance with the terms of the order.

Agrial Leung

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established