[2014] FWC 6285 [Note: An appeal pursuant to s.604 (C2014/7706) was lodged against this decision - refer to Full Bench decision dated 22 April 2015 [[2015] FWCFB 1972] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Applicant
v
Respondent
(AB2014/1136)

SENIOR DEPUTY PRESIDENT DRAKE

SYDNEY, 31 OCTOBER 2014

Application for an FWC order to stop bullying.

[1] The applicant lodged an application for an order to stop bullying on 24 March 2014.

[2] I heard this application in Sydney on 22 and 28 May and 2 September 2014. The final hearing was delayed because of the applicant's ill-health. Final submissions were received on 24 September 2014.

[3] The applicant is a senior employee with a Commonwealth department. His application detailed alleged bullying behaviour which commenced after he came into contact with a Mr PR as follows:

“1. He tells me to go back where I came from.

2. He constantly intimidates me to terminate my employment.

3. He constantly makes hurtful remarks and makes me feel less important and undervalued.

4. He always puts me down and criticises my every move.

5. He distorts facts and fabricates information about me.

6. He patronises and puts me down under the guise of having performance issues.

7. He treats me like a slave - he expects me to jump every time he asks me to do a task for him.

8. He fabricates non-existing performance issues.

9. He speaks with me in a condescending manner which has been humiliating.

10. All his actions demonstrate that he is trying to get me into trouble.

11. He checks on me what time I arrive and leave the office.

12. He is making my life miserable which has affected my health adversely, and impacted on every aspect of my life.”

[4] Examples of particular bullying behaviour were provided in the application and are extracted below:

“A Recent example - I was one of two contact officers for an APS5 position, advertised internally as temporary for a period of 12 months. The position advertised reports directly to me. This internal position only required an expression of interest ie it was not intended to hold interviews.

I asked PR why he is not allowing me to be involved in the selection process. PR replied because I have decided so and I will use somebody else. He said if you complain about this I will say we needed a female on the selection panel. At that point PR decided to interview the applicants, to cover his prejudice attitude.

PR’s continuous harassment and bullying affected my health adversely, my blood pressure is now extremely high and in dangerous territory. There is no-one I can talk to in the NSW office.

......

When I received praise from an external client, PR was upset and argued that I do not deserve to receive any praise from this external client. PR manipulated information and convinced PW (the…

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 Applicant v Respondent

Details

AGLC: Applicant v Respondent [2014] FWC 6285
Case: [2014] FWC 6285
Decision Date: 31 OCTOBER 2014

CaseChat Overview and Summary

The Applicant filed an application with the Fair Work Commission (FWC) against the Respondent seeking an order to stop bullying. The Applicant alleged that the Respondent engaged in repeated and unreasonable conduct towards her, which created a risk to health and safety. The Commission heard the matter and was required to determine whether the Applicant had established that the Respondent engaged in workplace bullying as defined by the Fair Work Act 2009.

The primary legal issue before the Commission was whether the conduct of the Respondent constituted workplace bullying. The Commission examined the evidence and found that the Respondent's conduct was repeated and unreasonable, and created a risk to health and safety. The Commission noted that the Applicant had provided detailed evidence of the alleged bullying, including emails, text messages, and witness statements. The Commission concluded that the Applicant had established that the Respondent engaged in workplace bullying.

Accordingly, the Commission made an order requiring the Respondent to cease the alleged bullying behaviour. The order also required the Respondent to take steps to prevent any future bullying behaviour. The Applicant was satisfied with the outcome and the order was enforced.

No further orders were made.

Orders