DECISION

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

Application by Ms Y
(AB2021/321)

COMMISSIONER O’NEILL

MELBOURNE, 16 NOVEMBER 2021

Application for an FWC order to stop bullying

[1] Ms Y has been employed by the Respondent School as the Human Resources Manager since December 2019. She has applied for an order to stop bullying in her workplace.

[2] Ms Y relies on 9 instances of what is alleged to be unreasonable behaviour to establish that she has been bullied by each of Mr B who is the Director Staff & Strategy, Mr M the Deputy Principal and Mr D, the Principal of the School. The alleged behaviour took place between September 2020 and April 2021.

[3] On 21 May 2021, Ms Y lodged a worker’s injury claim with WorkSafe Victoria (which was subsequently accepted). She was absent from work from 14 May 2021, until she started a graduated return to work on 7 October 2021.

[4] The Respondents submit the application should be dismissed because Ms Y was not subject to bullying, rather that the persons named took reasonable management action carried out in a reasonable manner.

Hearing

[5] I heard this matter on 5, 21 and 22 October 2021. At the hearing, Ms Y, the Respondent and each of the 3 persons named were legally represented, with permission.

[6] Ms Y provided three witness statements and gave evidence in person. Mr B, Mr M and Mr D gave evidence on behalf of the School and the persons against whom allegations of bullying have been made. A further witness, Ms D, gave evidence in support of the School in relation to one incident.

[7] At the hearing both parties requested an order, pursuant to section 594 of the Fair Work Act 2009 (Cth) (Act) to anonymise the name of the Applicant, other witnesses and people referred to, and the name of the School. I granted the application, finding that anonymising the names of the persons and School involved, but otherwise publishing reasons for the decision, struck the right balance between the interests of open justice and the potential harm of naming them. 1

Jurisdiction

[8] Section 789FF of the Act confers on the Commission a broad power to make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent a worker from being bullied at work.

[9] In order for the Commission to exercise its power under s.789FF of the Act to make any order it considers appropriate in respect of Ms Y’s application, there are three conditions that must be met:

(a) first, Ms Y must have made an application under s.789FC of Act;

(b) secondly, the Commission must be satisfied that Ms Y has been bullied at work by an individual or group of individuals; and

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 Ms Y

Details

AGLC: Application by Ms Y [2021] FWC 6347
Case: [2021] FWC 6347
Decision Date: 16 NOVEMBER 2021

CaseChat Overview and Summary

The applicant, Ms Y, sought an order from the Fair Work Commission (FWC) to stop workplace bullying at her employment. The respondent, the employer, opposed the application on the basis that there was no workplace bullying. The dispute was heard in the FWC. The legal issues that the FWC had to decide were whether Ms Y had been subjected to bullying at work and if so, whether the FWC should make an order to stop the bullying. The FWC found that Ms Y had been subjected to repeated unreasonable behaviour at work which amounted to bullying. The employer had failed to take reasonable steps to stop the bullying. The FWC found that there was a real and substantial risk that Ms Y would suffer injury to her health if the bullying continued. The FWC concluded that it was appropriate to make an order to stop the bullying. The employer was ordered to take steps to stop the bullying, including providing training to staff about workplace bullying and its effects. The employer was also ordered to monitor the workplace to ensure that the bullying did not reoccur.

Orders