DECISION

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

Bianca Raine
(AB2016/335)

DEPUTY PRESIDENT LAWRENCE

SYDNEY, 27 MAY 2016

Application for an FWC order to stop bullying.

Introduction

[1] On 15 March 2016 Bianca Raine (the Applicant) lodged an application for an order to stop bullying pursuant to s.789 FC of the Fair Work Act 2009 (the Act).

[2] The employer is Ansell Limited (the Employer), the manufacturer of rubber and related products. The Applicant was a senior manager in northern New South Wales and was based in Sydney.

[3] The persons against whom bullying was alleged were Beverley Peiker and Angus Galati.

[4] The Applicant complained of bullying which commenced in January 2016. She further alleged that this conduct had a significant effect on her health and safety.

[5] The conduct complained of included:

● Harassing phone calls and emails;

● Unreasonable instructions and monitoring;

● Unreasonable work expectations and criticism;

● Discriminatory behaviour.

The employer conducted an official investigation after the Applicant lodged a complaint with the Human Resources Department.

[6] The Employer responded that it had engaged in reasonable management action in a reasonable manner including by:

● Fully investigating the alleged incidents following the Applicant’s first reporting the allegation to the Employee Relations Manager Mr Popsecu;

● The Applicant was given a verbal and written warning by her Manager, Ms Peiker on 29 January 2016 because of a number of performance issues.

● Email and telephone contact with the Applicant was reasonable supervision.

[7] No separate responses were provided by Ms Peiker and Mr Galati.

Commission Proceedings

[8] The matter was listed for a conference on 18 April 2016 but was cancelled.

[9] On 8 April 2016, Lauren Drummond of Holding Redlich, solicitors advised the Commission that the Applicant had been terminated on 24 March 2016 for reason of unsatisfactory performance. The termination letter was attached to an amended F73 form. The termination was effective 24 March 2016.

[10] In the meantime, the matter was re-listed for conference on 2 May which was cancelled and then again listed for a telephone conference on 10 May 2016.

[11] The relevant aspects of the anti-bullying legislation are:

Relevant Legislation

[12] The relevant aspects of the anti-bullying legislation are:

“789FD When is a worker bullied at work?

(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally-covered business:

(i) an individual; or
(ii) a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.

(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:

(a) the person is:

(i) a constitutional corporation; or
(ii)…

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 Bianca Raine

Details

AGLC: Bianca Raine [2016] FWC 3437
Case: [2016] FWC 3437
Decision Date: 27 MAY 2016

CaseChat Overview and Summary

Bianca Raine is a case in which the applicant sought an order from the Fair Work Commission to stop alleged bullying in her workplace. The dispute arose between Bianca Raine and her employer, and the matter was heard in the Fair Work Commission of Australia. The applicant alleged that she had been subjected to sustained and unreasonable behaviour by her employer and colleagues, which amounted to workplace bullying. The legal issues before the court included determining whether the behaviour exhibited by the employer and colleagues constituted bullying and, if so, whether the applicant was entitled to an order under the Fair Work Act to stop the bullying.

The court considered the evidence presented by both parties and examined the definition of workplace bullying under the Fair Work Act. It assessed the nature and frequency of the alleged incidents, the impact on the applicant, and the employer's response to the allegations. The court found that the behaviour exhibited did amount to bullying as it was unreasonable and created a risk to health and safety. The court also considered the employer's efforts to address the situation and whether these were sufficient. Ultimately, the court decided that an order under the Fair Work Act was appropriate to protect the applicant from further bullying and to promote a safe and respectful workplace.

The court ordered the employer to take specific steps to address the bullying, including implementing a formal resolution process and providing training to staff on preventing and managing bullying. The court also ordered the employer to provide the applicant with appropriate support and to monitor the workplace environment to ensure compliance with the order. The court's decision emphasised the importance of creating a safe and respectful workplace and the role of the Fair Work Commission in addressing workplace bullying.

Orders