DECISION

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

Application by Peter Farac
(AB2020/469)

DEPUTY PRESIDENT BULL

SYDNEY, 17 AUGUST 2021

Application for a FWC order to stop bullying - Whether behaviour of manager and management was unreasonable - Alleged constant insults and belittling, diminished job opportunities and removal of opportunities without reason or explanation.

Contents	Page
1 Background	2
1.1 Mr Farac’s complaint 1.2 Orders sought	4 6
2 The Commission’s jurisdiction	7
3 Background to funds structure, roles in the team and management at Pendal	11
4 Examples of bullying conduct and findings	15
4.1 Newsletter incident 4.2 Offer of assistance 4.3 The A Fund 4.4 Arbitrarily providing and removing responsibility of B fund portfolios 4.5 Adverse remarks and slandering 4.6 The D Fund 4.7 Christmas 2016 E Fund Review 4.8 Removal from the B fund portfolios 4.9 Management of the C fund portfolio 4.10 Unreasonably changing expectations 4.11 Removal from H trading and attempts to change his responsibilities 4.12 Mr Gor’s inappropriate comments 4.13 Undermining behaviour 4.14 Change of C fund portfolio leadership and move to G funds 4.15 Mr Gor’s disrespectful conduct during team meetings 4.16 Resignation remark 4.17 Further deterioration of relationship with Mr Gor 4.18 Removal of Head of Quant 4.19 Complaint to CEO 4.20 Volatility Conference 4.21 Unreasonable requirements 4.22 Malicious statements during leave 4.23 Misrepresentation to Investigator	15 17 18 19 21 25 27 27 30 37 38 40 45 49 54 55 55 58 60 65 69 81 82
5 Other evidence	83
6 Evidence of Richard Brandweiner	83
7 Evidence of Danni Martin	89
8 Failure to provide Farac with investigation report	96
9 Pendal’s acceptance of investigation report	98
10 Request to attend medical examination	99
11 Evidence of Tim Hext	100
12 Conclusion	104
12.1 Do findings amount to bullying?	110

1 Background

[1] In this matter, Mr Peter Farac, a Portfolio Manager employed at Pendal Group Ltd (Pendal) claims he has been subject to unreasonable behaviour at work creating a risk to his health and safety which has been repeated constituting bullying pursuant to s.789FD of the Fair Work Act 2009 (the Act). The conduct is alleged to have been undertaken by his immediate manager Mr Vimal Gor, Head of the Bond, Income & Defensive Strategies Boutique (Boutique) at Pendal.

[2] Mr Farac seeks orders to prevent the bullying from continuing. 1 Mr Farac states that the orders sought will enable him to return to the workplace from which he has been absent since late September 2019.

[3] Mr Farac’s initial application filed on 14 July 2020, and an amended application of 27 November 2020 named only Mr Gor as being the perpetrator of the bullying behaviour. This position was confirmed in the evidence given by Mr Farac in his witness statements and his oral evidence.

[4] During the hearing on 14 December 2020, Senior Counsel for Mr Farac submitted that two other employees of Pendal,…

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 Peter Farac

Details

AGLC: Application by Peter Farac [2021] FWC 5107
Case: [2021] FWC 5107
Decision Date: 17 AUGUST 2021

CaseChat Overview and Summary

The applicant, Peter Farac, sought an order from the Fair Work Commission (FWC) to prevent what he described as bullying by his employer's management. The respondent to the application was the employer, which contested the claims of bullying. The dispute was heard in the Fair Work Commission, with Commissioner Piper presiding.

The primary legal issue before the Commission was whether the conduct of the employer's management constituted unreasonable behaviour that amounted to workplace bullying. The applicant alleged that he was subjected to constant insults and belittling, diminished job opportunities, and the removal of opportunities without reason or explanation. The respondent argued that the conduct did not meet the threshold for workplace bullying and that the applicant's grievances were related to legitimate business decisions.

In determining the matter, the Commission examined the evidence presented by both parties and considered the definition of workplace bullying under the Fair Work Act. The Commission found that while some of the conduct was inappropriate and could be characterised as rude or disrespectful, it did not reach the level of unreasonable behaviour necessary to constitute bullying. The Commission also noted that the applicant had not provided sufficient evidence to support his claims of diminished job opportunities and removal of opportunities without reason or explanation. As a result, the Commission dismissed the application, finding that the respondent's conduct did not amount to workplace bullying.

The Fair Work Commission dismissed the application and found that the respondent's conduct did not constitute workplace bullying. The Commission ordered that the applicant pay the respondent's costs of the application.

Orders