Application by Judith Ellen Heyworth (Earp) - [2022] FWC 3340

[2022] FWC 3340

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Application by Judith Ellen Heyworth (Earp)

(SO2022/373)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 20 DECEMBER 2022

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

Introduction and background

On 1 August 2022, Ms Heyworth, a psychologist, made an application in the Fair Work Commission (Commission) for orders to stop bullying (Bullying Application) pursuant to section 789FC of the Fair Work Act 2009 (Cth) (Act).

In her Bullying Application Ms Heyworth named her employer as “Warners Bay Private Hospital – Ramsay Health” and identified four persons who she alleges have engaged in bullying behaviour towards her. Those persons are Ms Monic Ortiger, Ms Merran Boyd, Ms Michelle Hamilton, Ms Kate Augustine, and Ms Sally Bartlett. It is alleged in the Application that one of the persons named (Ms Ortiger) is employed by a different employer, namely Ramsay Psychology Charlestown.

The employer response filed to the Bullying Application (Response) identifies two related employers/principals: (1) Ramsay Health Care Australia Pty Ltd (Ramsay Health Care) and (2) Ramsay Professional Services Pty Ltd trading as Ramsay Psychology Services (Ramsay Psychology).

Until 8 December 2022, Ms Heyworth was a part-time employee of Ramsay Health Care at the Warners Bay Private Hospital. Ms Heyworth worked in the role of psychologist.

In addition to her part-time employment with Ramsay Health Care at the Warners Bay Private Hospital, at all material times Ramsay Psychology has engaged Ms Heyworth as an independent contractor to provide psychology services at a facility located at Charlestown. The principal/contractor relationship between Ms Heyworth and Ramsay Psychology is ongoing.

Ms Ortiger is employed by Ramsay Health Care and works as a psychologist at the Warners Bay Private Hopital. At an earlier time, Ms Ortiger worked for Ramsay Psychology as a contracted psychologist at the Charlestown facility. Ms Ortiger ceased working in that role in about mid-2021.

Ms Boyd is employed by Ramsay Health Care as a Mental Health Allied Health Manager at the Warners Bay Private Hospital.

Ms Hamilton is employed by Ramsay Health Care as a HR Business Partner and has responsibility for activities at the Warners Bay Private Hospital.

Ms Augustine was previously employed by Ramsay Health Care as a HR Assistant and had responsibility for activities at the Warners Bay Private Hospital. Ms Augustine is no longer employed by Ramsay Health Care.

Ms Bartlett is employed by Ramsay Health Care as a HR Business Partner and formerly had responsibility for activities at the Warners Bay Private Hospital. Ms Bartlett now works at a different workplace and no longer has any responsibility for activities at the Warners Bay Private Hospital.

In October 2020, Ms Heyworth made a complaint about alleged bullying conduct on the part of Ms Ortiger and by other individual managers who have allegedly failed to investigate or appropriately deal with the complaint or…

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 Judith Ellen Heyworth (Earp)

Details

AGLC: Application by Judith Ellen Heyworth (Earp) [2022] FWC 3340
Case: [2022] FWC 3340
Decision Date: 20 DECEMBER 2022

CaseChat Overview and Summary

The Fair Work Commission was asked to decide an application for an order to stop bullying made by Judith Ellen Heyworth against her employer and four individuals. Ms Heyworth alleged that she had been bullied by the four individuals, all of whom were or had been employed by her employer at Warners Bay Private Hospital. Ms Heyworth was also a contractor for the employer’s related entity, Ramsay Psychology Services, at Charlestown. The Commission was required to determine whether there was a risk that Ms Heyworth would continue to be bullied at work by an individual or group, and whether the application had reasonable prospects of success. The Commission found that Ms Heyworth was no longer employed by the hospital and therefore there was no risk she would be bullied at work there. It was noted that Ms Heyworth had not alleged any bullying by individuals employed at the Charlestown facility. Ms Heyworth’s arguments about the dispute resolution process in her enterprise agreement were found to be irrelevant to the application. The application was dismissed on the basis that it had no reasonable prospects of success.

The final orders of the Commission were that the application for an order to stop bullying be dismissed and that the applicant pay the respondents’ costs of the application.

Orders