DECISION

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

Charmaine Hoad
(AB2018/537)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 29 MARCH 2019

Application for an FWC order to stop bullying – co-owner of family business - matrimonial dispute between business owners – jurisdiction - whether a risk of future bullying at work – whether agreement to discontinue – whether binding settlement agreement – direction that matter not be relisted until final Court order

[1] On 31 August 2018 Charmaine Hoad (Mrs Hoad or the Applicant) made an application 1 (AB2018/537) to the Fair Work Commission (Commission) under section 789FC of the Fair Work Act 2009 (the FW Act) seeking an order to stop bullying. The application identified two respondents: her employer Hoad Water Cartage Pty Ltd (Hoad Water Cartage or the employer) and a person named Mr (William) Mark Hoad (Mr Hoad) who is also her husband.

[2] The application was filed and dealt with by the Commission in the shadow of a matrimonial dispute between Mr and Mrs Hoad (the parties) which remains before the Federal Circuit Court of Australia (the Court).

[3] At a directions hearing on 25 January 2019 Mrs Hoad advised that she wished to proceed with her application. Mr Hoad made an oral application seeking dismissal of the application on jurisdictional and procedural grounds. I issued directions listing the matter for hearing on those threshold issues and required Mr Hoad to file an application in writing.

[4] On 8 February 2019 Mr Hoad filed an application 2 seeking dismissal of the application on three grounds: (1) that the parties had entered a binding settlement agreement such that there was no ongoing risk of alleged bullying; (2) the parties agreed to discontinue this proceeding in light of the binding settlement agreement; and (3) that action taken was reasonable management action (the strike-out application).

[5] I conducted a hearing of Mrs Hoad’s application on 15 February 2019. Consistent with my directions, the hearing concerned only the first two grounds on which Mr Hoad sought dismissal of the application: being jurisdictional and procedural issues. I did not conduct a hearing of the claim of alleged bullying or whether the alleged conduct was reasonable management action taken in a reasonable manner (merits).

[6] In advance of the hearing Mr Hoad and Mrs Hoad each filed written materials on the strike-out application. Mr Hoad and Mrs Hoad appeared by telephone. Each was self-represented. Each gave evidence. I reserved my decision.

[7] Whilst there is significant contention between Mr and Mrs Hoad on the claim of alleged bullying (merits), I did not take evidence on the merits. On factual matters relevant to the jurisdictional and procedural issues, there were relatively few disputes. Despite evident tensions, each gave evidence carefully. On the jurisdictional and procedural matters the evidence of both Mr Hoad and Mrs Hoad is broadly reliable.

[8] In the few instances where I need to make contested findings of fact I…

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 Charmaine Hoad

Details

AGLC: Charmaine Hoad [2019] FWC 2034
Case: [2019] FWC 2034
Decision Date: 29 MARCH 2019

CaseChat Overview and Summary

The applicant, Charmaine Hoad, sought an order from the Fair Work Commission (FWC) to prevent workplace bullying by her former business partner, who was also her estranged husband. The dispute arose from a matrimonial conflict between the co-owners of a family business, culminating in the applicant claiming that she was bullied and harassed by her former partner at work. The matter was brought before the Federal Circuit and Family Court of Australia to determine the jurisdiction and validity of the FWC order.

The primary legal issues were whether the FWC had jurisdiction to make an order to stop bullying in the circumstances and whether the applicant's application was valid. The court needed to assess whether there was a risk of future bullying at work and if the agreement to discontinue the matter was binding. Additionally, the court had to consider whether the settlement agreement reached between the parties was binding and if the matter should be directed not to be relisted until a final Court order was made.

In reaching its decision, the court noted that the FWC had made an order to stop bullying based on the applicant's complaint. However, the court found that the FWC did not have jurisdiction to make such an order due to the nature of the relationship between the parties and the existence of an ongoing matrimonial dispute. The court concluded that the agreement to discontinue the matter was not binding, and the settlement agreement did not prevent the court from exercising its jurisdiction. Consequently, the court directed that the matter not be relisted until a final Court order was made.

The court's final order was that the matter was not to be relisted until a final Court order was made. This decision emphasised the importance of jurisdictional boundaries between the FWC and the Family Court and the need for clear and binding agreements in complex family and business disputes.

Orders