DECISION

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

Application by E.K
(AB2017/135)

COMMISSIONER SIMPSON

BRISBANE, 25 MAY 2017

Application for FWC order to stop bullying - section 587(1) application to dismiss – contested facts – application dismissed.

[1] 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. UC has advised that it is representing itself and the two named persons in the matter.

[2] The matter was filed on 13 March 2017 and was the subject of a private conference on 19 April 2017. A proposal was discussed in the course of the conference to resolve the matter and at the conclusion of the conference the Applicant undertook to advise after a period of consideration whether she accepted the proposal to resolve the matter or not. On 24 April the Applicant advised that she did not wish to accept the proposal and that she wished to continue with her application. On the same day the UC sent correspondence to my chambers seeking that the application be dismissed under section 587(1) of the Act.

[3] I listed the matter for mention on 8 May 2017 and directed that the parties file submissions to address the application under s.587.

[4] Section 587(1) of the Act states:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

UC’s submission

[5] UC noted dictionary definitions of the expressions ‘frivolous” and “vexatious”. UC submitted its application was based on the continual raising and repetition of matters over several years by the Applicant as set out in its response to the application. UC referred to a decision in Keddie & Ors v Stacks/Goudkamp Pty Ltd [2012] NSWCA 254 where the Court determined the phrase “without reasonable prospects of success” means “not fairly arguable”.

[6] UC submitted it had included in its Form F73 response to the application that the alleged bullying was reasonable management action, carried out in a reasonable manner by the two named persons.

[7] UC submitted that they had demonstrated through documented evidence that on each and every occasion where the Applicant had made allegations, that the Applicant had been afforded natural justice and a fair investigation.

[8] UC submitted that the Applicant had raised the same allegations repeatedly, demonstrating the frivolous and vexatious nature of her application. It was also said by UC that the outcome of its multiple investigations should substantiate its application that the matter has no reasonable prospect of success.

[9] UC submitted that for…

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 2822
Case: [2017] FWC 2822
Decision Date: 25 MAY 2017

CaseChat Overview and Summary

In the Fair Work Commission, an application was made by E.K against her former employer, seeking an order to stop bullying under section 587(1). The application was contested by the employer, leading to a hearing before the Commission. The dispute centred on whether the conduct of the employer constituted bullying, as defined by the Fair Work Act, and whether the appropriate remedy was to grant an order to stop the alleged bullying.

The central legal issues before the Commission were whether the conduct alleged by E.K amounted to bullying and, if so, whether an order under section 587(1) should be made. The Commission had to consider the nature of the interactions between E.K and her colleagues, the impact of those interactions on E.K, and whether the conduct was unreasonable and created a risk to health and safety. The Commission also needed to determine whether the employer had taken reasonable steps to address the allegations and whether there was any justification for the conduct.

After hearing evidence and considering the submissions, the Commission found that while there were instances of inappropriate conduct, these did not rise to the level of bullying as defined in the Fair Work Act. The Commission noted that while some interactions were uncomfortable or unpleasant, they did not create a risk to E.K's health and safety. Additionally, the employer had taken steps to address the issues, which were deemed reasonable in the circumstances. As a result, the application to stop the alleged bullying was dismissed.

Orders