Application by Maheep Singh Basra - [2024] FWC 3359

[2024] FWC 3359

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Application by Maheep Singh Basra

(AB2024/306)

COMMISSIONER HUNT

BRISBANE, 3 DECEMBER 2024

Application for an FWC order to stop bullying

On 29 April 2024, Mr Maheep Basra made an application to the Fair Work Commission (the Commission) pursuant to s.789FC of the Fair Work Act 2009 (the Act) for an order to stop bullying. Mr Basra is employed by Shepcon Qld Pty Ltd T/A Kraftur (Kraftur) and sought for the Commission to make an order to stop bullying against three named persons employed by Kraftur. The Persons Named are:

·   Mr Adrian Prevost, Managing Director;
·   Mr John Nolan, Site Leader; and
·   Mr Bradley Ewin, Site Leader.

The matter was allocated to me on 22 May 2024, and I listed the matter for a telephone conference on 30 May 2024. A further telephone conference was held on 20 June 2024, and following that conference, I issued directions for the filing of evidence and submissions. The matter was heard in person in Brisbane on 26 July and 15 August 2024. Mr Basra represented himself at the hearing. Kraftur and the Persons Named were granted permission to be represented by Mr Colin Dorber of Workplace Connect Pty Ltd.

The following people gave evidence and were cross-examined:

Mr Basra
Mr Adam Ciobo, Concrete Finisher
Mr Steven Dimitriesvski, Carpenter
Mr Aden McGuane, Carpenter
Mr Nolan
Mr Prevost
Mr Ewin

Kraftur is a concreting contracting company founded in 2015 by Mr Prevost. Mr Basra commenced employment with Kraftur in August 2022 as a Labourer.

Mr Basra seeks a remedy in response to alleged workplace bullying pursuant to Part 6-4B of the Act. It is not in dispute that Mr Basra is an eligible worker to bring a claim under this jurisdiction. Mr Basra has not been at work since 29 April 2024.

RELEVANT LEGISLATION

A worker who reasonably believes that he or she has been bullied at work may apply to the Commission for an order to stop bullying. Section 789FC of the Act provides:

“789FC Application for an FWC order to stop bullying

(1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.

(2) For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force.

Note: Broadly, for the purposes of the Work Health and Safety Act 2011, a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.

(3) The application must be accompanied by any fee prescribed by the regulations.

(4) The regulations may prescribe:

(a) a fee for making an application to the FWC under this section; and

(b) a…

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 Maheep Singh Basra

Details

AGLC: Application by Maheep Singh Basra [2024] FWC 3359
Case: [2024] FWC 3359
Decision Date: 3 DECEMBER 2024

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Maheep Singh Basra for an order to prevent workplace bullying. The respondent, the employer, contested the application, asserting that the conduct in question did not constitute bullying as defined by the Fair Work Act. The Commission was tasked with determining whether the alleged conduct met the criteria for workplace bullying, which includes repeated and unreasonable behaviour directed towards an employee that creates a risk to their health and safety.

The central legal issue was whether the conduct exhibited by the employer towards Mr Basra was indeed bullying. This required the Commission to examine the nature and frequency of the interactions, the impact on Mr Basra's health and safety, and whether the behaviour was unreasonable given the circumstances. The Commission also needed to consider the definitions and thresholds set out in the Fair Work Act and relevant case law.

In reaching its decision, the Commission found that the employer's conduct did not meet the statutory definition of bullying. The evidence presented indicated that while there were disagreements and conflicts, they did not reach the level of repeated and unreasonable behaviour necessary to be classified as bullying. The Commission highlighted that the incidents were isolated and did not create a risk to Mr Basra's health and safety as required by the Act. Consequently, the application was dismissed, and no order was made against the employer.

Orders