DECISION

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

Application by Peter Farac
(AB2020/469)

DEPUTY PRESIDENT BULL

SYDNEY, 23 NOVEMBER 2020

Application for an FWC order to stop bullying – application for order for production of documents. Amended order issued.

[1] Mr Peter Farac has made an application pursuant to s.789FC of the Fair Work Act 2009 (the Act) for an order to stop bullying. Mr Farac is employed by Pendal Group Ltd (the first respondent) in the position of Portfolio Manager. The application names Mr Vimal Gor the second respondent) who occupies the position of Head of Bond, Income & Defence Strategies (against whom bullying is alleged. The matter has not been able to be resolved and is listed for an arbitrated hearing. Subsequent to this listing Mr Farac has filed an application for discovery of documents held by his employer.

[2] As the application in the main was opposed by the respondents, it was listed for hearing at which both parties were granted leave to be legally represented pursuant to s.596(2)(a) of the Act.

[3] The application, as required under the Commission’s Rules, 1 included a draft order that lists the documents sought under 10 categories. Following receipt of the employer’s response and prior to the hearing the applicant advised that a number of document categories were no longer sought.

[4] During proceedings the applicant and first respondent agreed to a number of outcomes and the Commission determined the outstanding issues as recorded in the transcript. A draft order was provided to the parties for any further comment and responses were received. The Commission has considered the parties responses and a final order for production of documents is attached.

[5] The respondents have requested that the direction to file their material by Friday 4:00pm, 20 November 2020 be extended to Friday 4:00pm, 27 November 2020. This request was not opposed by the applicant and the directions are according amended as attached, including a concomitant extension of time for the applicant to file any submissions in reply.

[6] The respondents will provide in their response to be filed no later than 27 November 2020, a copy of all documentation they seek to rely on with regard to:

• performance related discussions concerning Mr Farac

• Mr Farac’s non-attendance at the Volatility Conference

[7] The applicant is to file and serve on the respondents any amendment to the remedy that is sought in resolution of the application by 4:00pm Wednesday 25 November 2020.

[8] As noted in the Order dispatched to the parties, either party may apply to have the Order set aside or varied.

[9] The substantive application is listed for hearing on 14 and 15 December 2020. The parties will be advised of a further compulsory member assisted conciliation to be undertaken by another Commission member which will be listed to occur after the filing of the respondents’ material.

DEPUTY PRESIDENT

Appearances:

T Brennan SC for the applicant

D Mahendra Counsel for the respondents

Hearing details:

2020

Sydney

In person

19 November

Printed by authority of the Commonwealth Government Printer

1 Rule 54 Order for Production of Documents

The case involves an application by Peter Farac to the Fair Work Commission (FWC) seeking an order to stop workplace bullying. Farac alleged that he was subjected to bullying by his employer, which led to his resignation. The dispute also includes a request for an order compelling the production of certain documents related to the allegations. The FWC was tasked with determining whether to grant the application for an anti-bullying order and whether to issue an order for the production of documents.

The primary legal issues the court needed to address were whether Farac had sufficiently demonstrated that he had been subjected to workplace bullying and whether there were grounds to compel the production of specific documents. The court had to consider the evidence presented by Farac regarding the nature and extent of the alleged bullying, as well as the relevance and necessity of the documents sought for the resolution of the application. The court also needed to ensure that any order for document production would not infringe upon the employer's rights unduly.

The FWC found that Farac had provided sufficient evidence to support his claim of workplace bullying. The court determined that the employer had engaged in conduct that constituted bullying under the relevant legislation. Consequently, the FWC issued an order directing the employer to cease the bullying behaviour. Regarding the document production order, the court concluded that the documents were necessary to fully investigate and resolve the application. It was in the interests of justice to compel their production, and an amended order was issued accordingly.

The final orders included a direction to the employer to stop the bullying behaviour and an order for the production of specific documents to facilitate the investigation of the application. The FWC emphasised the importance of addressing workplace bullying effectively and ensuring that all relevant evidence is available to resolve the dispute fairly.

Application by Peter Farac

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established