Application by Christian Roser - [2022] FWC 2430

[2022] FWC 2430

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Application by Christian Roser

(SO2022/102)

DEPUTY PRESIDENT BOYCE

SYDNEY, 13 SEPTEMBER 2022

Application for an FWC order to stop bullying – Commission not satisfied on the evidence that there is a risk that the Applicant will be continued to be bullied at work by named individual – Full Bench decision in Mekuria v MECCA Brands Pty Ltd [2019] FWCFB 2771; (2019) 289 IR 105 applied - application dismissed.

Introduction

The Applicant, Mr Christian Roser, has filed a Form F72 anti-bullying application (Application) with the Fair Work Commission (Commission) seeking relief (in the form of stop-bullying orders) under Part 6-4B of the Fair Work Act 2009 (Act).

The Respondents to the Application are the Applicant’s employer, Woolworths Group Limited (Woolworths), and an individual, Ms Susana Hopoi (nee Havili). The Applicant and Ms Hopoi previously worked on the same shift, however, since late 2020, the Applicant has worked on the morning shift, and Ms Hopoi has worked on the afternoon shift.

After an unsuccessful conciliation conference conducted to resolve the Application, the matter was heard in Sydney on 19 April 2022. The Applicant filed his final closing written submissions on 23 August 2022.

At the Hearing, the Applicant was represented by Mr Victor Gazi, a relative of the Applicant, and the Respondents were represented (with permission) by Ms Vanja Bulut, of counsel, instructed by Ms Sharissa Thirukumar, Senior Associate, Clayton Utz lawyers.[1]

As is apparent from the findings and reasons that follow, this Application has been determined not by reference to whether or not the Applicant has been bullied at work, but on the basis of whether I can be satisfied that there is a risk that the Applicant will continue to be bullied at work (s.789FF of the Act).

Legislation and case law

Sections 789FD and 789FF of the Act[2] read:

789FD. When is a worker bullied at work?

(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally‑covered business:

(i) an individual; or

(ii) a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.

(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:

(a) the person is:

(i) a constitutional corporation; or

(ii) the Commonwealth; or

(iii) a Commonwealth authority; or

(iv) a body corporate incorporated in a Territory; or

(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;

then the business or undertaking is a constitutionally‑covered business.

789FF. FWC may make orders to stop bullying

(1) If:

(a)…

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: [2022] FWC 2430
Decision Date: 13 SEPTEMBER 2022

CaseChat Overview and Summary

The matter involved an application by Christian Roser to the Fair Work Commission (FWC) seeking an order to stop bullying in the workplace. The Applicant, Mr Roser, alleged that he was subjected to bullying by a named individual, which he claimed had a significant impact on his health and wellbeing. The dispute was heard by the FWC, which had to determine whether the evidence presented by Mr Roser was sufficient to warrant an order to prevent the alleged bullying from continuing.

The legal issues before the court were whether the evidence provided by Mr Roser was adequate to demonstrate that there was a risk of continued bullying in the workplace, and if so, whether the FWC should issue an order to prevent such bullying. The court had to consider the principles set out in relevant case law, including the Full Bench decision in Mekuria v MECCA Brands Pty Ltd, in making its determination.

The FWC found that, while Mr Roser had presented evidence of workplace bullying, it was not satisfied that there was a risk of continued bullying. The court relied on the Full Bench decision in Mekuria v MECCA Brands Pty Ltd, which emphasised the need for a clear and convincing demonstration of a risk of continued bullying before an order could be made. As the evidence presented by Mr Roser did not meet this standard, the application was dismissed.

The final orders of the FWC were that the application by Christian Roser for an order to stop bullying in the workplace be dismissed. The court did not issue any further orders or directions in relation to the matter.

Orders