Application by C.I - [2017] FWC 847

[2017] FWC 847

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Application by C.I

(AB2016/321)

COMMISSIONER SIMPSON

BRISBANE, 15 FEBRUARY 2017

Application for an FWC order to stop bullying – where applicant is terminated from employment – whether the Commission has jurisdiction to hear the application – where applicant has filed s.394 application – no reasonable prospects of success – application dismissed

On 23 February 2016, the Applicant made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the Act). I will for convenience describe this as the “AB application”.

At the same time as lodging the AB application, the Applicant lodged an application under s.372 under the Act for an alleged breach of the General Protections. The General Protections matter was also allocated to me, and I conducted a conference concerning the s.372 application in April 2016 which was not successful in resolving the dispute.

The Applicant alleged he was subject to bulling behaviour by 14 employees in his workplace, V (the Respondent). The Respondent raised a jurisdictional objection to these allegations on the basis the alleged bullying behaviour was reasonable management action, carried out in a reasonable manner.

Shortly after the unsuccessful s.372 conference, on 26 April 2016 the AB application was listed for a Conference where the parties again were unable to come to a resolution. The AB application was listed for hearing on Monday 13 June and Tuesday 14 June 2016 to be heard in Brisbane.

On 8 May 2016 the Applicant wrote to the Commission requesting an extension to file his material due 16 May 2016, on the basis he had been suffering from an illness that had hindered his ability to prepare his material. The Commission wrote to the Applicant on 9 May 2016 requesting the Applicant provide medical certificates to support his request for an extension of time.

On 11 May 2016 the Commission received a medical certificate from the Applicant dated 26 April 2016 to 24 May 2016. The matter was subsequently listed for Mention to be heard by telephone on 13 May 2016.

On 13 May 2016 the Applicant’s request for an extension to file his material was granted, and the hearing dates were subsequently vacated and the matter was relisted for hearing on 18 July and 19 July 2016.

Following the Mention on 13 May 2016 the Applicant wrote to the Commission requesting a further extension of time to submit his material now due 6 June 2016, until 13 June 2016. The Respondent agreed to this request and the request for a further extension was granted.

On 8 June 2016 the Applicant wrote to the Commission advising that due to medical reasons, he was unable to meet the deadline to submit his material on 13 June 2016, and requested a further extension of time. The Applicant advised he would send through medical certificates to support his request.

On 10 June 2016, the Commission received…

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 Application by C.I

Details

AGLC: Application by C.I [2017] FWC 847
Case: [2017] FWC 847
Decision Date

CaseChat Overview and Summary

The applicant, C.I, applied to the Fair Work Commission (FWC) for an order to stop bullying at work under section 789FC of the Fair Work Act 2009. The application was made against V, the respondent, who is the applicant’s former employer. The applicant alleged he was bullied by 14 employees in his workplace. The respondent raised a jurisdictional objection, arguing that the alleged bullying behaviour was reasonable management action carried out in a reasonable manner. The applicant had also filed a separate application under section 372 of the Fair Work Act for an alleged breach of the General Protections. However, this application was unsuccessful. The applicant subsequently filed an unfair dismissal application under section 394 of the Fair Work Act, and his employment with the respondent was terminated. The FWC was required to determine whether it had jurisdiction to hear the bullying application given that the applicant’s employment had been terminated.

The FWC found that there was no power to make an order to stop bullying because there was no risk of the applicant being bullied at work. The FWC noted that the applicant had filed an unfair dismissal application, which could potentially result in reinstatement. However, this was speculative and uncertain. The FWC relied on the decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank and Another, where the Deputy President found that the applicant could not be bullied at work because the employment relationship had ended. The FWC also noted that if the applicant was reinstated, he could make a fresh application. The FWC exercised its discretion to dismiss the application because it had no reasonable prospect of success.

The FWC dismissed the applicant’s application for an order to stop bullying. The FWC noted that the applicant had filed an unfair dismissal application that could potentially result in reinstatement, but this was speculative and uncertain. The FWC found that there was no power to make an order to stop bullying because there was no risk of the applicant being bullied at work. The FWC exercised its discretion to dismiss the application because it had no reasonable prospect of success. The FWC also noted that if the applicant was reinstated, he could make a fresh application.

Orders