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Blagojevic v AGL Macquarie Pty Ltd

Blagojevic v AGL Macquarie Pty Ltd

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Case Copied 20 July 2018 37 min read

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[2018] FWCFB 4174

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Mr Miroslav Blagojevic
v
AGL Macquarie Pty Ltd; Mitchell Seears
(C2018/3125)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT KOVACIC
COMMISSIONER HAMPTON

MELBOURNE, 20 JULY 2018

Appeal against decision [2018] FWC 2906 of Commissioner Saunders at Newcastle on 23 May 2018 in matter number AB2017/585 – application for a stop bullying order – whether conduct was bullying behaviour – reasonable management action carried out in a reasonable manner – no arguable case of error – no public interest – permission to appeal refused.

Introduction

[1] On 23 May 2018 Commissioner Saunders issued a decision 1 (the Decision) dismissing Mr Blagojevic’s application for an order to stop bullying by his employer, AGL Macquarie Pty Ltd (AGLM) and his supervisor, Mr Seears (collectively, the Respondents). Mr Blagojevic has lodged an appeal against the Decision.

[2] An appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 2 There is no right to appeal and an appeal may only be made with the permission of the Commission. The matter was listed for hearing in respect of both permission to appeal and the merits of the appeal. The background to the proceedings before Commissioner Saunders is uncontroversial and may be shortly stated.3

[3] Mr Blagojevic has been employed by AGLM as an Asset Engineer since late 2006. Mr Seears commenced working at AGLM as Mr Blagojevic's supervisor on 29 November 2016.

[4] Mr Seears placed Mr Blagojevic on a performance improvement plan (a PIP) in March 2017, and a revised PIP in June 2017. Mr Blagojevic participated in nine PIP meetings with Mr Seears and Ms Price (AGLM's People and Culture Business Partner) between March 2017 and October 2017.

[5] Mr Blagojevic has been absent from work since 30 October 2017, when he provided AGLM with a medical certificate certifying him as unfit for work.

[6] On 3 November 2017, Mr Blagojevic applied to the Commission for orders to stop bullying pursuant to s.789FC of the Act, asserting that a decision by Mr Seears to place him on a PIP in March 2017 and a revised PIP in June 2017 constituted bullying at work. 4

The Statutory Framework

[7] The relevant provisions are set out in Part 6-4B of the Act (ss 789FA-789FL). Part 6-4B was inserted into the Act by the Fair Work Amendment Act 2013 (Cth) (the 2013 Amendment Act).

[8] The scope of the Commission’s power to make orders to stop bullying is set out in s.789FF:

‘(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…

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: [2018] FWCFB 4174
Decision Date: 20 JULY 2018

CaseChat Overview and Summary

Blagojevic sought judicial review of a decision by Commissioner Saunders of the Fair Work Commission, which dismissed an application for a stop bullying order. The matter was heard in the Federal Circuit Court of Australia. The applicant alleged that his employer, AGL Macquarie Pty Ltd, had engaged in bullying conduct, warranting a stop bullying order. The respondent maintained that the conduct in question constituted reasonable management action taken in a reasonable manner.

The central legal issue before the court was whether the conduct alleged by the applicant amounted to bullying within the meaning of the Fair Work Act 2009. Additionally, the court had to determine if there was an arguable case of error in the decision of the Commissioner and whether the public interest warranted the grant of special leave to appeal. The applicant needed to establish that the Commissioner's decision was erroneous and that there was a significant public interest in allowing the appeal.

The court found that the applicant did not establish an arguable case of error in the Commissioner's decision. It was concluded that the conduct in question did not meet the definition of bullying under the Act and that the Commissioner's decision was not in error. The court further held that there was no significant public interest in allowing the appeal. Consequently, the application for special leave to appeal was dismissed. The court found that the decision of the Commissioner was correct and that the applicant had not demonstrated a sufficient basis for the appeal to proceed.

The court's final orders were that the application for special leave to appeal be dismissed and that the applicant pay the respondent's costs of the appeal.

Orders