| [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 | 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…
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- Case
- [2018] FWCFB 4174
- Decision Date
CaseChat Overview and Summary
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
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Background
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