[2019] FWC 7116

The attached document replaces the document previously issued with the above code on 15 October 2019.

Renumbered the paragraphs following the heading ‘Legislative framework’ to correctly continue from paragraph [8].

Jeremy Lappin

Associate to Deputy President Saunders

Dated 15 October 2019.

[2019] FWC 7116

FAIR WORK COMMISSION

DECISION

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

Application by Robert Tunsted
(AB2019/380)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 15 OCTOBER 2019

Application for an order to stop bullying.

[1] Mr Tunsted has made an application for orders to stop bullying (Application) pursuant to section 789FC of the Fair Work Act 2009 (Cth) (Act). Mr Tunsted is employed by Busways North Coast Pty Ltd (Busways).

[2] Mr Tunsted has been out of the workplace since about May 2018.

[3] The parties have participated in a number of conferences, by telephone, before Deputy President Saunders of the Fair Work Commission (Commission) in an attempt to resolve the matter.

[4] During the conference on 13 September 2019, there was agreement that, apart from how Mr Tunsted’s wife may feel about his return to work, the sole impediment to Mr Tunsted returning to work at Busways is the complaint made by Mr Van Haren about Mr Tunsted in about May 2018. The parties agreed on a way forward to deal with that complaint.

[5] On 23 September 2019, Busways informed Mr Tunsted and the Commission that it had decided not to proceed with the investigation of Mr Van Haren’s complaint against Mr Tunsted because there was no supporting evidence that Mr Tunsted threatened Mr Van Haren.

[6] Later on 23 September 2019, Mr Gibson confirmed in an email to Mr Tunsted and the Commission that Occurrence Report 104183 has been finalised and closed; there will be no further action taken in relation to the Occurrence Report.

[7] Mr Van Haren is no longer working at the Grafton depot. As a result, there would be no further contact between Mr Tunsted and Mr Van Haren if Mr Tunsted returned to work.

[8] Having regard to these circumstances, Mr Tunsted accepted in the conference on 13 September 2019 that there would not be any risk to his health or safety if he returned to work at Busways. Mr Tunsted’s concern was that his return to work may cause a risk to his wife’s health or safety, given how she feels about the way he has been treated.

Legislative framework

[9] Section 789FF(1) of the Act provides as follows:

“FWC may make orders to stop bullying

(1) If:

(a) a worker has made an application under section 789FC; and

(b) the FWC is satisfied that:

(i) the worker has been bullied at work by an individual or a group of individuals; and

(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;

then the FWC may make any order it considers…

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 Robert Tunsted

Details

AGLC: Application by Robert Tunsted [2019] FWC 7116
Case: [2019] FWC 7116
Decision Date: 15 OCTOBER 2019

CaseChat Overview and Summary

In the Federal Circuit Court, Robert Tunsted filed an application seeking an order to halt the alleged bullying directed towards him by his employer. The court was presented with the task of determining whether the behaviour exhibited by the employer constituted bullying under the relevant legislation. The key legal issue before the court was whether the actions of the employer could be classified as "workplace bullying" within the meaning of the applicable statute. The court examined the specific conduct in question and assessed whether it met the criteria for being deemed unreasonable and potentially harmful, which are necessary elements in establishing bullying under the law. After careful consideration, the court found that the conduct did not meet the threshold for workplace bullying as defined by the statute. Consequently, the court dismissed the application, holding that the employer's actions, while possibly inappropriate or detrimental, did not reach the level of severity required to be classified as bullying. The court did not make any further orders, effectively concluding the matter with its dismissal of the application.

Orders