DECISION

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

Anthony Duncan
(AB2018/542)

COMMISSIONER HAMPTON

ADELAIDE, 8 OCTOBER 2018

Application for an FWC order to stop bullying – applicant dismissed prior to making application – whether future risk of bullying conduct – whether reasonable prospects of success – no future risk – application dismissed as a matter of discretion.

[1] On 4 September 2018, Mr Anthony Duncan (the applicant) made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the Act).

[2] The application was listed for a telephone conference before this arm of the Commission on 19 September 2018. Despite proper notice of the conference to all parties, there was no participation by Mr Duncan or anyone on his behalf and the Commission was unable to make contact with him via telephone.

[3] It became apparent during the course of the conference that Mr Duncan had been terminated from his employment on 31 August 2018; however, it appeared, at that stage, that he had not taken any steps to challenge the termination.

[4] The applicant’s employer, Agbulk Transport Pty Ltd, participated in the conference and made a verbal application 1 to have the stop-bullying application dismissed on the basis that:

• Mr Duncan was not, at the time of bringing the application, a worker and was therefore not eligible to bring the s.789FC application (not a worker at the time of application); and

• There is no risk of bullying in the future because the applicant is no longer in the workplace (no future risk).

[5] These two jurisdictional matters were earlier outlined in the employer’s response to the stop-bullying application. For reasons that will become clear I have only dealt with the no future risk jurisdictional matter.

[6] On 20 September 2018, Mr Duncan contacted the Commission to advise that he wished to continue with his stop-bullying application notwithstanding the termination of his employment and was still considering his options in relation to challenging the termination.

[7] Correspondence from the Commission was sent to the applicant (and the other parties) on 21 September 2018, setting out the events to date, the basis of the no future risk jurisdictional matter, and some information resources about the issue. Directions were also issued requiring Mr Duncan to provide the following:

“1. A written explanation of the basis upon which you contend that there would be a genuine risk of future bullying to you as a worker involving Mr B (the person named in the application) at your former workplace. Alternatively, if you contend that there is some other basis upon which the Commission can continue to hear and determine your anti-bullying application, you should set this out.

2. Any response is to be provided to the Commission and the respondent parties (Ms K and Mr B) by Tuesday 2 October 2018.”

[8] Further, Mr Duncan was advised that should he…

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.

Continue reading Anthony Duncan

Details

AGLC: Anthony Duncan [2018] FWC 6145
Case: [2018] FWC 6145
Decision Date: 8 OCTOBER 2018

CaseChat Overview and Summary

In Anthony Duncan, the applicant sought an order from the Fair Work Commission to prevent the respondent, his former employer, from engaging in bullying conduct. The applicant had been dismissed from his employment prior to lodging the application. The dispute centred on whether there was a future risk of bullying conduct, and if the applicant had reasonable prospects of success on the merits. The Fair Work Commission was tasked with determining the future risk of bullying conduct and whether the applicant had reasonable prospects of success. The court considered whether the applicant had demonstrated a future risk of bullying, given his dismissal, and whether the applicant had reasonable prospects of success on the merits. The Commission found that there was no future risk of bullying conduct, as the applicant had been dismissed and was no longer in a position where such conduct could occur. Consequently, the application was dismissed as a matter of discretion. The Commission did not proceed to consider the merits of the applicant’s claim. The Fair Work Commission dismissed the application as it found there was no future risk of bullying conduct and, therefore, the application lacked reasonable prospects of success.

Orders