DECISION

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

Applications by Hien, Le; Sankey, Joseph; Soy, Bora
(AB2019/139) (AB2019/140) (AB2019/141)

DEPUTY PRESIDENT SAMS

SYDNEY, 19 JUNE 2019

Application for an FWC order to stop bullying – application for interim orders to prevent pending disciplinary action – disciplinary matters unrelated to alleged bullying – whether serious issue to be tried – balance of convenience – no evidence that applicants will be dismissed – management prerogative – balance of convenience favours employer – interim orders refused – further programming.

[1] Given the urgency of this application, my decision will obviously not be lengthy or complex. I have taken all the parties’ submissions into account, reviewed all of the material which has been filed in the matters to date, and reflected on the conferences with the parties. The decision was issued ex tempere on 14 June 2019 and is now edited and published as follows.

[2] This matter concerns joint applications for stop bullying orders filed on 19 March 2019 by Mr Hien Le, Mr Michael Sankey and Ms Bora Soy, pursuant to s 789FC of the Fair Work Act 2009 (the ‘Act’). The respondents to the applications are the St Vincent de Paul Society (the ‘Society’) and six of its Senior Managers, although the allegations of bullying seem largely directed towards Ms Sue Chillingworth – Metro Region Accommodation Manager of the Society - from the time she became the applicants’ Manager. The applicants are Senior Support Workers with lengthy periods of service ranging from 11-24 years. At the time the applications were lodged, the applicants were engaged at the Matthew Talbot Hostel in Woolloomooloo.

[3] Relevantly, the applications were lodged following show cause letters issued to each of the applicants in October 2018 about unrelated conduct issues. A Performance Improvement Plan had been put in place in respect to one of the applicants. The applicants have been represented at all relevant times by the Australian Municipal, Administrative, Clerical and Services Union (the ‘Union’).

[4] There have been several listings of these matters before the Commission. The applications came before me for conference on 1 April 2019. Mr Coluccio from the Union represented the applicants, and Ms P Thomson from the Australian Federation of Employers and Industries (‘AFEI’) represented the respondents. The purpose of that listing was for the Commission to consider an application, filed by the Union, in which it sought orders restraining the employer from imposing any disciplinary sanction on the applicants until the determination of their stop bullying applications. Mr R Coluccio contended that the disciplinary action proposed, and the process itself, were essential components of the bullying claims of the applicants.

[5] It is pertinent to observe that the applicants’ complaints of bullying had been the subject of an internal investigation in February/March 2019, which found no bullying could be substantiated. It is apparent that the investigation and disciplinary process were occurring concurrently, but it was strongly…

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.

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Details

Case: [2019] FWC 4274
Decision Date: 19 JUNE 2019

CaseChat Overview and Summary

In the Federal Circuit Court, three applicants sought an order to halt bullying pending a determination of their application to the Fair Work Commission (FWC). The applicants were employees of an entity that had initiated disciplinary proceedings against them for reasons unrelated to the bullying claims. The applicants sought interim orders to prevent the employer from proceeding with the disciplinary action until their bullying application was determined. The court was required to decide whether there was a serious issue to be tried, whether the balance of convenience favoured the applicants, and if the applicants had a likelihood of being dismissed if the interim orders were not granted.

The court found that the applicants had not demonstrated a serious issue to be tried in relation to the bullying claims. The court also found that the balance of convenience favoured the employer, as the disciplinary proceedings were unrelated to the bullying claims. The applicants had not provided any evidence that they would be dismissed if the interim orders were not granted. The court recognised the employer's management prerogative to take disciplinary action against employees. The court held that the applicants had not demonstrated that the balance of convenience favoured them, and therefore, the interim orders were refused.

The court ordered that the matter be further programmed for a hearing of the application on its merits. The court noted that the applicants would have an opportunity to present their case in full at the hearing, and that the employer would have an opportunity to respond to the bullying claims. The court also noted that the interim orders were not a final determination of the merits of the bullying claims, and that the applicants would still have the opportunity to seek remedies if their application on the merits was successful.

Orders