DECISION

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

Application by Poh Keng Chang
(AB2018/695)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 8 MAY 2019

Application for an FWC order to stop bullying – applicant not bullied at work – application dismissed.

Introduction and background

[1] Located within the East Maitland Bowling Club is the Billabongs Restaurant. It is a buffet style restaurant where patrons can select food from a range of stations, including grill/bbq, Asian, sushi, soup and carvery, pizza and pasta, seafood and salad. The Billabongs Restaurant is owned and operated by Billabongs Restaurant Pty Ltd (Billabongs). Mr Jimmy Po is the managing director of Billabongs. His daughter, Ms Jenny Po, is a director of Billabongs. Mr Jimmy Po opened the Billabongs Restaurant about 24 years ago, but it is now run by Ms Po and her husband, Mr Ly Do.

[2] Ms Po’s duties include marketing, management and human resources. Mr Do is one of the 35 employees of Billabongs. Mr Do’s position is Restaurant Manager and he has responsibility for employees working in the kitchen and employees working on the floor of the Billabongs Restaurant, in addition to a range of general management responsibilities.

[3] Ms Poh Keng Chang commenced employment with Billabongs in the position of Cook on 1 July 2018. On 8 November 2018, Ms Chang filed an application for an order to stop bullying in the Fair Work Commission (Commission). Ms Chang’s application, as filed, was focused primarily on her allegation that she had been threatened at the Billabongs Restaurant by a colleague, Mr Ryan Chan. Following a number of conferences before the Commission, Billabongs put in place a regime on 12 December 2018 whereby Ms Chang would not have any communication or involvement with Mr Chan at work except in the case of an emergency. Both Ms Chang and Billabongs accept that this regime has been working effectively since 12 December 2018 and there is no reason to doubt that it will continue to work effectively into the foreseeable future.

[4] On 13 March 2019, Ms Chang informed the Commission, in writing, that she was no longer pressing any allegation of bullying against Mr Chan. On the same day, Ms Chang filed a table containing 33 allegations of bullying against Ms Po, Mr Do and Mr Jimmy Po, most of which were new allegations. A copy of that table of allegations is set out in paragraph [24] below.

[5] Although Ms Chang did not seek leave to amend her application for orders to stop bullying or to add Ms Po, Mr Do and Mr Jimmy Po to the proceedings as “persons named”, I made directions to ensure all relevant persons were made aware of the new allegations and were given a fair opportunity to respond to them. Accordingly, I have treated the table of allegations as, in effect, an addendum to Ms Chang’s application for orders to stop bullying.

Hearing

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 Poh Keng Chang

Details

AGLC: Application by Poh Keng Chang [2019] FWC 3178
Case: [2019] FWC 3178
Decision Date: 8 MAY 2019

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by Poh Keng Chang, who sought an order to cease bullying at her workplace. Poh alleged that her workplace environment had become intolerable due to persistent bullying by her colleagues. The respondent, who was Poh's employer, contested these claims, asserting that there was no evidence of bullying and that Poh's grievances were more aligned with general workplace dissatisfaction. The Commission was tasked with determining whether the allegations of bullying were substantiated and whether an order was warranted to address the situation.

The central legal issue the Commission had to decide was whether Poh had been subjected to workplace bullying as defined by the Fair Work Act 2009. The Commission examined the definition of bullying, which includes repeated unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety. The Commission assessed the evidence presented by both parties, including witness statements, workplace policies, and any prior complaints or disciplinary actions. The determination hinged on whether the behaviour described by Poh met the statutory criteria for bullying.

The Commission found that while Poh had experienced difficulties and dissatisfaction in her work environment, the evidence did not support the conclusion that her colleagues' behaviour constituted bullying under the Act. The behaviour in question, although unpleasant and disruptive, did not meet the threshold of repeated unreasonable conduct that creates a health and safety risk. Consequently, the Commission dismissed Poh's application, holding that there was insufficient evidence to support an order to stop the alleged bullying. The decision was based on the specific criteria outlined in the Fair Work Act, and the Commission emphasised the need for clear and compelling evidence to substantiate claims of workplace bullying.

No further orders were made by the Commission as the application was dismissed outright. Poh was informed of her right to appeal the decision within the specified timeframe. The Commission's decision underscored the importance of a thorough investigation and the need for evidence that meets the statutory definition of bullying to secure a favourable outcome in such matters.

Orders