Application for an FWC order to stop bullying - Strike-out application referred to the Full Bench - meaning of ‘at work’ within the Fair Work Act 2009 (Cth) - Strike-out application dismissed - Matter remitted to Deputy President Gostencnik.

Background

[1] Three employees of DP World Melbourne Limited (DP World) have each made an application for an order to stop bullying pursuant to s.789FC of the Fair Work Act 2009 (Cth) (the FW Act). The Applicants (Annette Coombe, Sharon Bowker and Stephen Zwarts) want the Fair Work Commission (the Commission) to make a finding and issue a statement to the effect that each of them has been bullied at work. In addition, various orders are sought against DP World and the Maritime Union of Australia (MUA).

[2] The Applicants have provided a Points of Claim document outlining the various alleged elements of unreasonable behaviour relied upon by them. This includes alleged conduct by individuals that are, or were, employees of DP World, members of the MUA and/or officials of the MUA.

[3] The Commission’s jurisdiction to make orders to stop bullying is only enlivened if, among other things, the Commission is satisfied that ‘the worker has been bullied at work’ (s.789FF(1)(b)(i)). DP World and the MUA (the Respondents) seek to have certain allegations in the Applicants’ Points of Claim struck out on the basis that the alleged bullying conduct did not occur ‘at work’, within the meaning of s.789FD.

[4] The points of claim document sets out a large number of alleged grounds for each application. The alleged conduct that the respondents contend should be struck out on the basis of not being “at work” includes the following:

● That an official of the MUA has failed to advise members of the union on site that certain allegations against one of the applicants is wrong and has taken no action to prevent two of the applicants being called a “lagger” and being ostracised in the workplace (particulars 35 and 36);

● That various Facebook posts have been made by employees of DP World who are members of the MUA, and by MUA officials, making various unreasonable and insulting allegations and comparisons of two of the applicants (particulars 65, 66, 67 and 68);

● That during the course of a union meeting (conducted in facilities made available to the MUA on the Melbourne waterfront) it was suggested by an…

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 Bowker v DP World Melbourne Ltd

Details

AGLC: Bowker & Ors v DP World & Ors [2014] FWCFB 9227
Case: [2014] FWCFB 9227
Decision Date: 19 DECEMBER 2014

CaseChat Overview and Summary

The matter of Bowker v DP World Melbourne Ltd involved an application by Bowker to the Fair Work Commission (FWC) for an order to stop alleged workplace bullying. Bowker's application was subsequently challenged by DP World Melbourne Ltd, leading to a strike-out application. The dispute was heard and initially decided by a Deputy President of the FWC, but DP World Melbourne Ltd sought a review by the Full Bench of the Commission on the issue of whether Bowker's conduct occurred "at work" as required by the Fair Work Act 2009 (Cth).

The central legal issue before the Full Bench was the interpretation of the term "at work" in the context of the Fair Work Act and its application to Bowker's conduct. The Full Bench considered the legislative intent behind the term "at work" and examined whether Bowker's actions, which occurred outside of regular working hours and away from the workplace, still constituted "at work" bullying under the Act. This required an analysis of the statutory language, the surrounding circumstances of the alleged bullying, and the broader context in which the conduct took place.

The Full Bench ultimately found that the term "at work" should be interpreted broadly to encompass conduct that occurs outside of regular working hours and away from the workplace if it is related to the employment. However, the Full Bench did not make a final determination on whether Bowker's conduct met the threshold for "at work" bullying, as this required a more detailed factual assessment. Consequently, the strike-out application was dismissed, and the matter was remitted back to the Deputy President for further consideration of the facts in light of the Full Bench's reasoning on the meaning of "at work".

The Full Bench did not make any final orders in this instance, as the matter was returned to the Deputy President for further investigation and determination of the facts in light of the Full Bench's interpretation of the term "at work".

Orders