Application by Lindsay Rosenblum - [2023] FWC 1640

[2023] FWC 1640

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009

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

Application by Lindsay Rosenblum

(AB2023/222)

COMMISSIONER HUNT

BRISBANE, 12 JULY 2023

Application for an FWC order to stop bullying – employer seeking to investigate applicant and potentially dismiss applicant from her employment – application for interim orders – whether appropriate to make interim orders – ex tempore decision made – interim order made.

On 7 June 2023, Ms Lindsay Rosenblum made an application to the Fair Work Commission (the Commission) under s.789FC of the Fair Work Act 2009 (the Act), seeking an order to stop bullying. Ms Rosenblum is employed by Qld Trade Services Builders Pty Ltd t/a QLD Trade Services Builders (QTSB). The application alleges various elements of bullying conduct by Mr Bryan Roberts, Director of QTSB, together with his wife, Mrs Julie Roberts. Mrs Roberts is an Accountant from Accountancy Bookkeeping Tax Solutions (ABTS), working in the vicinity of QTSB. She also recently became a part-time employee of QTSB. QTSB and Mr and Mrs Roberts are collectively the Respondents in this matter.

QTSB is a labour hire and building services company based in Airlie Beach, Queensland. QTSB employs Ms Rosenblum, an American national, as an accounting manager/accountant on a full-time basis.

ABTS occupies office space within the QTSB premises in Airlie Beach and performs accountancy work for QTSB. Ms Rosenblum asserts that she and Mrs Roberts routinely perform accounting work for QTSB together.

Without going into all of the allegations Ms Rosenblum has made against the Respondents, in her application she asserted that the Respondents have engaged in bullying of her, including unwarranted disciplinary action. Ms Rosenblum has not attended work since mid-April 2023 when she became unwell. She has largely been on unpaid leave. She has made a claim for workers’ compensation; the decision of which is pending.

On 21 June 2023, Employsure Law Pty Ltd communicated that it was acting on behalf of QTSB and Mr Roberts. A Form F73 was filed on behalf of QTSB. Mr Roberts elected, as is his right, not to complete a Form F74. QTSB objected to the application on the basis that the alleged bullying was reasonable management action, carried out in a reasonable manner.

Mrs Roberts sent the following email to the Anti-Bullying Sexual Harassment team on 20 June 2023:

“Dear Fair Work Commission

This matter has nothing to do with me and is not my concern.

Rosenblum has included me in this claim, but not the previous claims she has made.

Rosenblum thinks that me giving the correct and honest information to companies handling claims on her behalf is bullying towards her.

Rubbish, the truth is the truth, not bullying.

I have no intention of completing any forms on behalf of my business or myself in this matter.

Rosenblum was not employed by me, I did not work with her and have never worked with her.

QTS has separate offices next door. Rosenblum has an office…

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 Lindsay Rosenblum

Details

AGLC: Application by Lindsay Rosenblum [2023] FWC 1640
Case: [2023] FWC 1640
Decision Date: 12 JULY 2023

CaseChat Overview and Summary

The case involves an application by Lindsay Rosenblum seeking an order from the Fair Work Commission (FWC) to stop alleged bullying by her employer. The employer, who is seeking to investigate Rosenblum and potentially dismiss her, opposes the application. The legal issues before the court were whether it was appropriate to make interim orders to prevent the employer from continuing with its proposed investigation and potential dismissal. The court was required to assess whether the applicant's claims were sufficiently compelling to warrant interim relief, particularly in the context of the employer's right to conduct its own investigation and manage its workforce.

The court considered the evidence presented and the legal principles governing interim relief. It noted the seriousness of the allegations of bullying and the potential harm to Rosenblum if the employer proceeded with its investigation and dismissal without interim relief. The court also balanced this against the employer's rights and interests. After careful consideration, the court found that the applicant had made out a prima facie case for interim relief and that it was appropriate to make interim orders to prevent the employer from proceeding with its investigation and potential dismissal. The court's decision was made ex tempore, reflecting the urgency and sensitivity of the matter.

Consequently, the court made an interim order prohibiting the employer from continuing with its investigation and potential dismissal of Rosenblum. The order was designed to protect Rosenblum's interests while the full application was being heard. This decision underscores the importance of protecting employees from workplace bullying and the potential for interim relief to provide immediate protection in such circumstances.

Orders