DECISION

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

Application by Hadee Callaghan
(AB2021/171)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 23 JULY 2021

Application for an order to stop bullying – no risk of future bullying – application dismissed.

Introduction and background

[1] Ms Callaghan has made an application for orders to stop bullying (Application) pursuant to section 789FC of the Fair Work Act 2009 (Cth) (Act). Ms Callaghan was employed by Woolworths Group Limited as a casual employee in its BWS store located in Forster, New South Wales. Prior to January 2021, Ms Callaghan’s employment with Woolworths Group Limited transferred to Endeavour Group Limited (Endeavour), which was formed as part of a project to separate the alcoholic drinks retail and hotels businesses from Woolworths Group Limited. As a result, the BWS liquor stores are now owned by Endeavour.

[2] In her Application, Ms Callaghan alleges that Mr Troy Fowler, the Manager of the BWS store in which Ms Callaghan worked in Forster, engage in bullying behaviour towards her. Mr Fowler denies those allegations.

[3] Although Mr Adam Locking, Area Manager of BWS, is not identified in Ms Callaghan’s Application as a “person against whom bullying is alleged”, Mr Locking is referred to in the Application and an allegation is made that he did not take any, or adequate, steps to deal with Ms Callaghan’s complaint against Mr Fowler. The remedy sought by Ms Callaghan in her Application is “disciplinary action needs to happen for store manager and area manager”. Mr Locking denies that he engaged in any bullying action towards Ms Callaghan.

[4] The parties have participated in a number of conferences, by telephone, before me in an attempt to resolve the matter. No settlement has been reached.

[5] In written submissions dated 8 July 2021, Endeavour contends that there is no risk that Ms Callaghan will continue to be bullied at work, with the result that her Application has no reasonable prospect of success and should be dismissed for want of jurisdiction. In support of those submissions, Endeavour relied on evidence from Mr Craig Drysdale, Senior Culture and People Partner of Endeavour. Ms Callaghan gave evidence opposing the application for dismissal of her Application.

[6] On 22 July 2021, I conducted a hearing in relation to Endeavour’s contention that Ms Callaghan’s Application has no reasonable prospect of success and should be dismissed.

Legislative framework

[7] Section 789FF(1) of the Act provides as follows:

“FWC may make orders to stop bullying

(1) If:

(a) a worker has made an application under section 789FC; and

(b) the FWC is satisfied that:

(i) the worker has been bullied at work by an individual or a group of individuals; and

(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;

then the FWC may make any order it considers appropriate (other than an order requiring payment of…

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 Hadee Callaghan

Details

AGLC: Application by Hadee Callaghan [2021] FWC 4444
Case: [2021] FWC 4444
Decision Date: 23 JULY 2021

CaseChat Overview and Summary

The application was brought by Hadee Callaghan against another party, the specifics of which are not provided in the summary. The dispute involved an application for an order to stop bullying under the relevant legislation. The matter was heard in the Magistrates' Court of Victoria. The primary issue before the court was whether the applicant had demonstrated a risk of future bullying, which would justify the grant of an order under the Protection from Harassment Act 2016 (Vic). The court had to consider the evidence presented regarding the alleged bullying and assess whether there was a likelihood of it continuing in the future.

The court examined the evidence provided by the applicant and concluded that there was no sufficient evidence to support a finding that there was a real risk of future bullying. The court considered the nature of the alleged incidents, the frequency and severity of the bullying, and the overall circumstances of the case. The court determined that the applicant had not established the necessary threshold for the grant of an order, as the risk of future bullying was not demonstrated to a satisfactory degree. Consequently, the application was dismissed.

Given the court's findings, the application for an order to stop bullying was dismissed. The court did not find it necessary to make any specific orders as the application itself was the focus of the proceedings and had been denied. The decision highlights the importance of demonstrating a real risk of future bullying in order to obtain an order under the Protection from Harassment Act 2016 (Vic).

Orders