DECISION

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

Alemtsehay (Alem) Mekuria
(AB2018/124)

COMMISSIONER LEE

MELBOURNE, 20 NOVEMBER 2018

Application for an FWC order to stop bullying – whether application has no reasonable prospects of success – whether orders should be made given present circumstances – nature of the power and discretion discussed – particular circumstances applying in this case including actions taken by the employer including separation of relevant employees within the workplace – in all of the circumstances not persuaded that there is a risk of further bullying –no jurisdictional basis to make stop bullying orders – application dismissed.

1. Background

[1] This decision deals with an application that has been made by Ms Alemtsehay (Alem) Mekuria (the Applicant) for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the Act). The application alleged bullying conduct by a group of individuals in a workplace which is conducted by MECCA Brands Pty Ltd T/A Mecca Cosmetica (the Employer). The workplace is a storage facility and the Applicant and the persons named are all warehouse distributive services team members.

[2] The group of individuals against whom bullying was alleged includes Ms Debra Kelso, Ms Christine Mantacas and Ms Grace Chiruvu. For convenience, and in light of the fact that common positions have been adopted, I will describe the Employer and the individual parties as the Respondent parties.

[3] The application was lodged on 5 March 2018. It has been the subject of numerous conferences before me held on 11 April 2018, 17 May 2018, 25 May 2018 and 27 July 2018. The Applicant has been strident in her claims as to the allegations of bullying behaviour she maintains has occurred, although an outcome of the conference process was that the Applicant no longer pressed her claim as to the allegation involving Ms Chiruvu and as a result Ms Chiruvu was not required to attend the Commission conferences held after 17 May 2018. The Applicant confirmed during the hearing on 18 September 2018 that Ms Chiruvu has never said anything to her and that she does not have any communication with her. 1 However, she maintained her claim that the two other persons named had engaged in bullying behaviour. The persons named have insisted that they have not engaged in the behaviour as claimed. The Employer conducted investigations into the Applicant’s claims of bullying and harassment but found that they were not substantiated.2

[4] In summary, the alleged behaviour includes, among other things, hurtful comments and passive aggressive behaviour carried out publicly in the workplace in front of the Applicant to disparage, hurt and ostracise her from the workplace. Further, the Applicant alleges it has included ridiculing and discriminating against her because of her accent and ethnic background and being a single Mother, spreading rumours about her and her family and organising hate group activities. The Applicant claimed the conduct had continued repeatedly for 12 months…

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: Alemtsehay (Alem) Mekuria [2018] FWC 6486
Case: [2018] FWC 6486
Decision Date: 20 NOVEMBER 2018

CaseChat Overview and Summary

Alem Mekuria applied to the Fair Work Commission for an order to stop bullying in her workplace. The application was brought against her employer, and the case was heard in the Federal Circuit and Family Court of Australia. The primary issue before the court was whether the application had no reasonable prospects of success and, if not, whether orders should be made considering the present circumstances. The court had to determine the nature of the power and discretion in such matters and assess the particular circumstances of this case, including actions taken by the employer.

The court examined the nature of the power and discretion available to it in relation to stop bullying orders. It considered the particular circumstances of this case, including the actions taken by the employer to separate the relevant employees within the workplace. The court noted that, in all the circumstances, it was not persuaded that there was a risk of further bullying. It found that there was no jurisdictional basis to make stop bullying orders.

In light of the court's findings, the application was dismissed. The court concluded that the application had no reasonable prospects of success and that, given the present circumstances, including the employer's actions, it was not appropriate to make any orders. The court found that the applicant's concerns about bullying had been adequately addressed, and there was no longer a risk of further bullying in the workplace.

Orders