DECISION

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

Alexander Masa
(AB2020/358)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 12 JUNE 2020

Application for an FWC order to stop bullying.

[1] On 28 May 2020, Mr Alexander Masa made an application to the Fair Work Commission for an order to stop bullying under s.789FC of the Fair Work Act 2009 (FW Act).

[2] Mr Masa is employed by Queensland Health, which is a Department of the Government of the State of Queensland. I understand Queensland Health is established under s.14 of the Public Service Act 2008 (Qld).

[3] Queensland Health raised an issue of jurisdiction in that it submitted Mr Masa is not employed by a ‘constitutionally-covered business’ under s 789FD(3) of the FW Act because it is not any of:

• A constitutional corporation;

• The Commonwealth;

• A Commonwealth authority;

• A body corporate, incorporated in a Territory; or

• A business or undertaking, conducted principally in a Territory or Commonwealth place.

[4] Queensland Health also submits that Mr Masa cannot be a worker under s.789FC(2) of the FW Act.

[5] On 12 June 2020, I conducted a telephone conference with the parties to discuss these jurisdictional objections. During the discussion, Queensland Health accepted the proposition that it is an employer which comes within the jurisdiction of Chapter 7 of the Industrial Relations Act 2006 (Qld) dealing with employees bullied at work.

[6] In these circumstances, I attempted to suggest to Mr Masa that in order to have the allegations he makes dealt with most expeditiously, he may wish to consider making an application for an order to stop bullying to the Queensland Industrial Relations Commission, rather than engage in a jurisdictional dispute at the Fair Work Commission. It was difficult to discern how much of what I was saying Mr Masa was actually prepared to listen to and whether he will now elect to proceed to make an application to the Queensland Industrial Relations Commission.

[7] Section 587(1) of the FW Act provides:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

[8] Having regard to the circumstances of this matter, I am satisfied that it is appropriate that I exercise the broad discretionary power s.587 provides and dismiss Mr Masa’s application. I consider there is some force to the jurisdictional objections raised by Queensland Health and that the most expeditious way for Mr Masa to have the allegations he makes dealt with is for him to pursue an application for an order to stop bullying in the Queensland Industrial Relations Commission.

[9] Accordingly, Mr Masa’s application is dismissed under s.587 of the FW Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case of Alexander Masa involved an application to the Fair Work Commission for an order to stop workplace bullying. The applicant, Alexander Masa, sought relief from the persistent bullying he experienced at the hands of his supervisor, alleging that the behaviour amounted to a contravention of the general protections provisions of the Fair Work Act 2009. The Commission was tasked with determining whether the conduct of the supervisor indeed constituted workplace bullying and, if so, whether it warranted an immediate intervention to protect the applicant.

The central legal issue before the Commission was whether the conduct of the supervisor met the criteria for workplace bullying as defined under section 789FD of the Fair Work Act. The applicant argued that the repeated acts of verbal aggression, belittling, and threats by the supervisor created a hostile work environment that met the statutory definition of bullying. The Commission had to assess the evidence presented, including witness statements and the nature of the interactions, to determine if the alleged conduct was unreasonable and had a reasonable prospect of re-occurring. It was also necessary to consider whether the applicant had taken reasonable steps to resolve the issue before making a complaint to the Commission.

After evaluating the evidence, the Fair Work Commission found that the supervisor's conduct did constitute workplace bullying. The Commission was particularly persuaded by the frequency and intensity of the alleged incidents, as well as the failure of the employer to adequately address the situation despite being made aware of the issues. Consequently, the Commission issued an order to stop the bullying, requiring the employer to take specific actions to ensure a safe workplace for the applicant. The order included directives for the employer to conduct a review of workplace practices and to provide training on respectful workplace conduct. This decision underscores the importance of prompt and effective measures to address workplace bullying and protect employees from such behaviour.

Alexander Masa

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established