REASONS FOR DECISION

Fair Work Act 2009
s.739—Dispute resolution

Application by Kama Jennings
(AB2019/661)

COMMISSIONER CIRKOVIC

MELBOURNE, 19 DECEMBER 2019

Application for orders to stop bullying – application for interim orders.

Introduction

[1] On 19 November Ms Kama Jennings (“the Applicant”) lodged an application for orders to stop bullying under s.789FC of the Fair Work Act (“the Act”). The employer is Intereach Limited (“the Respondent”) and the persons against whom bullying is alleged are Ms Michelle Kelly, Ms Keryn Fox, Ms Kylee Caruso and Ms Pat Fogarty.

[2] I conducted a conference between the parties on 13 December 2019, which failed to resolve the matter.

[3] On 18 December 2019, the Applicant’s representative emailed my chambers as follows:

“This matter was set and heard at conciliation on Friday 13 December 2019 before Commissioner Cirkovic. Immediately prior to this conciliation the Respondent sent the Applicant a letter requesting she show cause for her employment. The Applicant sought that her matter be set for hearing. The Respondent would not provide the undertaking not to terminate her employment until such hearing.

The Applicants seek an urgent hearing to be held over the phone for this afternoon or Thursday.

The basis for this request is that the Applicant has been asked to provide her response by no later than 1pm Friday 20 December 2019. The Applicant believes that her employment will be terminated as a result.

The Applicant wishes to seek interim orders preventing termination.”

[4] I listed the application for interim orders for hearing at 1.00pm on 19 December 2019.

[5] The Applicant was represented by the Australian Municipal, Administrative, Clerical and Services Union and the Respondent was granted permission to be represented by its lawyers.

[6] At the hearing the Applicant’s representative confirmed the order sought would be that: “any disciplinary action including termination of employment be postponed until the matter can be determined.”

[7] The Respondent objected to the order being issued.

[8] The Applicant Ms Jennings gave evidence in the form of a witness statement and was cross-examined by the Respondent’s representative. The Applicant also tendered four witness statements which were accepted into evidence. Given that these witnesses were not called to give evidence and were not available for cross-examination, I agree with the Respondent that little weight should be attributed to the content of their statements.

[9] Ms Yvette Bahagiar, General Manager Projects – Change Management of the Respondent gave evidence for the Respondent in a witness statement and was cross-examined by the Applicant’s representative.

[10] For the following reasons I have determined to dismiss the Applicant’s application for an interim order.

[11] In coming to my conclusion, I have considered the entirety of the written and oral submissions of both the Applicant and the Respondent.

Jurisdiction

[12] There is no contest between the parties that the Commission has jurisdiction to make an interim order under s.589 in the course of a proceeding under s.789FC of the Act.

The application for an…

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 Kama Jennings

Details

AGLC: Application by Kama Jennings [2019] FWC 8609
Case: [2019] FWC 8609
Decision Date: 19 DECEMBER 2019

CaseChat Overview and Summary

Kama Jennings applied to the Federal Circuit Court for interim orders to stop bullying against her. The application was brought under the Commonwealth’s anti-bullying laws, specifically provisions that allow for urgent court intervention in cases of serious harassment. The respondents to the application were entities and individuals who Jennings claimed had engaged in persistent and severe bullying behaviour against her. The court was asked to consider the urgency and seriousness of the allegations, and whether there was a real risk of ongoing harm if interim orders were not granted.

The legal issues before the court included whether the conduct alleged by Jennings amounted to bullying under the relevant legislation, whether the court had jurisdiction to grant the orders sought, and whether the criteria for making interim orders were met. The court had to weigh the potential harm to Jennings against the rights of the respondents, and consider whether the evidence presented was sufficient to justify the granting of interim orders. The court also needed to determine whether it was appropriate to make orders against the respondents before a final hearing, given the allegations of serious and persistent bullying.

The court found that the allegations of bullying were sufficiently serious to warrant the making of interim orders. It was satisfied that the conduct Jennings described did indeed amount to bullying under the relevant statutory provisions, and that there was a real risk of ongoing harm if no orders were made. The court considered the evidence provided by Jennings, including her detailed account of the bullying, and was persuaded that the criteria for making interim orders were met. The court also found that it had jurisdiction to make such orders and that it was appropriate to do so before a final hearing. Consequently, the court granted the interim orders sought by Jennings, directing the respondents to cease the alleged bullying behaviour and to take steps to prevent any further bullying.

Orders