DECISION

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

Annemaree Collins
v
Team Rubicon Australia
(AB2020/200)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 7 MAY 2020

Application for an order to stop bullying – jurisdictional objection – whether a risk that the worker will continue to be bullied at work – jurisdictional objection upheld.

[1] Ms Annemaree Collins seeks an order to stop bullying at work, alleging she was bullied in her capacity as a volunteer for Team Rubicon Australia (TRA) by six persons employed by it.

[2] TRA is a public company limited by guarantee. It was incorporated in Victoria on 26 August 2016 and registered with the Australian Charities and Not-for-profits Commission (ACNC) on 31 October 2016 as a public benevolent institution whose purpose is “advancing social or public welfare”. TRA aims to assist veterans and/or their families, victims of disaster and the general community by uniting “the skills and experiences of Australian Defence Force veterans with emergency responders to rapidly deploy disaster relief teams around the globe”.

[3] TRA has three full-time employees and 3000 volunteers. It deploys an average of 30-40 volunteers at any given time. Only volunteers are deployed on operations. If a TRA employee sought to be deployed, they would be required to do so in a volunteer capacity.

[4] TRA says Ms Collins joined it as a volunteer on 31 August 2018, completed a one-day course in 2019 and attended her most recent deployment in the Victorian town of Buchan, commencing on or about 16 February 2020. This particular deployment lasted for approximately one week, and it would appear Ms Collins has not carried out any other volunteer activities for TRA since.

[5] In a letter dated 19 March 2020 sent to Ms Collins following this deployment, the following was outlined by Mr Aaron Francis, the National Human Resources Manager of TRA:

“I am writing to advise you of our intention to terminate your volunteer engagement with Team Rubicon Australia (TRA).

In making the decision to end your volunteer engagement, I have relied upon advice from the TRA leadership team about your performance and character, including on Operation Richter, previous operations and your recent correspondence and actions.

I find that your conduct during your most recent deployment, and in the immediate period after:

• Was willful or deliberately disruptive behaviour by you,

• Caused a risk to the reputation of TRA, and provided false hope to vulnerable people, through decision making that was not in your authority or delegation to make, and

• At times represented refusal or otherwise failure to comply with lawful and reasonable instructions, procedures or directions.

I find that your conduct and character are inconsistent with the continuation of your volunteer engagement.

If you disagree with this determination, or you would like to continue your service with TRA, you have 14 days to respond to this notice, after which your engagement will be automatically terminated.

I thank you for raising your…

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: [2020] FWC 2412
Decision Date: 7 MAY 2020

CaseChat Overview and Summary

The applicant, Annemaree Collins, sought an order to stop bullying under the Fair Work Act 2009, alleging that she had been bullied by her employer, Team Rubicon Australia. The matter was heard in the Fair Work Commission. The central issue before the court was whether the applicant had established that there was a risk that she would continue to be bullied at work, which was a jurisdictional requirement for the Commission to grant the order. Additionally, the court had to determine if there was a real prospect that the applicant would succeed in establishing the elements of the bullying claim.

The court found that the applicant had not established the necessary jurisdictional element, namely that there was a risk that she would continue to be bullied at work. The court held that the applicant's evidence did not demonstrate a sufficient risk of future bullying, and therefore, the application was dismissed. The court found that the applicant's concerns about potential future bullying were speculative and not based on concrete evidence. As a result, the court concluded that it did not have jurisdiction to grant the order.

As the court did not have jurisdiction, it did not proceed to consider the merits of the applicant's bullying claim. The court dismissed the application on jurisdictional grounds. The court did not make any orders in relation to the applicant's bullying claim.

Orders