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Christiene Perks

Christiene Perks

Case [2018] FWC 5522 31 August 2018

Bullying

Dismissal

Reasonable Prospect of Success

Employment & Labour Law

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[2018] FWC 5522

The attached document replaces the document previously issued with the above code on 31 August 2018.

The Print ID and MNC (identifying numbers) are amended to correct an administrative error.

Associate to Commissioner Wilson

Dated 3 September 2018

[2018] FWC 5522

FAIR WORK COMMISSION

DECISION

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

Christiene Perks
(AB2018/219)

COMMISSIONER WILSON

MELBOURNE, 31 AUGUST 2018

Application for an FWC order to stop bullying – application for member to no longer deal with matter; application for dismissal of substantive matter for reason of it having no reasonable prospect of success. Principles associated with member ceasing to deal with matter; no recusal. Principles associated with dismissal for no reasonable prospect of success; substantive matter dismissed.

[1] On 16 April 2018 Christiene Perks made an application to the Fair Work Commission for an order to stop bullying, pursuant to s.789FC of the Fair Work Act 2009 (the Act). Ms Perks’ amended application identified several actions on the part of a Person Named, Ms Jacqueline Williams, an employee of Crewe Sharp Medical, which Ms Perks put forward as conduct capable of being found to be bullying at work. Ms Perks was engaged at the time of the application in the capacity of a Personal Care Worker or Assistant Nurse and Ms Williams is the company’s Regional Manager working from Cairns. The circumstances of Ms Perks’ employment with Crewe Sharp Medical are that the company is an agency placement firm providing employees such as Ms Perks to care facilities, in her case in the Townsville region.

[2] Ms Perks application identifies the following alleged bullying conduct:

● A reference provided by Ms Williams on 29 March 2018 to a prospective employer about Ms Perks was “a defamatory reference for myself which caused an offer of permanent employment” to be withdrawn;

● When Ms Perks declined shifts on 25 August 2017 Ms Williams responded in a mobile text message with some text as well as “an angry face emoji”;

● When Ms Williams was unable to obtain Ms Perks by telephone on 6 October 2017 she then rang Ms Perks’ mother “to ask her if she could please contact me and ask me to answer my telephone. Ms Williams wanted me to cover a shift”. Ms Williams subsequently, on 5 January 2018, denied making contact with Ms Perks’ mother.

● When Ms Perks declined shifts on 17 October 2017, Ms Williams again responded in a mobile text message with some text as well as “an angry face emoji”.

[3] Both Ms Williams and Crewe Sharpe Medical deny certain of the factual aspects of these allegations, or that any of them could be found to be unreasonable behaviour or bullying at work.
[4] After the usual preliminaries were dealt with by the Fair Work Commission’s anti-bullying triage team, Ms Perks’ application was assigned to me. Consistent with usual practice, the matter was the subject of the conciliation conference before me on 8…

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 Christiene Perks

Details

AGLC: Christiene Perks [2018] FWC 5522
Case: [2018] FWC 5522
Decision Date: 31 AUGUST 2018

CaseChat Overview and Summary

The matter before the Fair Work Commission (FWC) involved an application by Christiene Perks against her employer, concerning allegations of workplace bullying. The FWC was required to determine whether it should cease dealing with the matter and whether the substantive matter should be dismissed due to it having no reasonable prospect of success. The case was presided over by a delegate of the President of the FWC, who was responsible for making the decision on both the procedural and substantive aspects of the application.

The legal issues before the FWC centred on the principles governing a member's decision to cease dealing with a matter and the criteria for dismissing a substantive matter as having no reasonable prospect of success. The applicant argued that the FWC should not proceed with the substantive matter due to the respondent's alleged misconduct in delaying the proceedings. The respondent, on the other hand, contended that the application should be dismissed because it lacked a reasonable prospect of success. The FWC had to balance these competing arguments and decide on the appropriate course of action.

The FWC delegate considered the principles associated with a member ceasing to deal with a matter, which included the importance of maintaining fairness and impartiality in the proceedings. The delegate found that there were no grounds for recusal, as there was no evidence of bias or an appearance of bias. Regarding the dismissal of the substantive matter, the FWC delegate examined the likelihood of success based on the available evidence and legal arguments. After a thorough analysis, the delegate concluded that the substantive matter had no reasonable prospect of success and was therefore dismissed. This decision was grounded in the evidence presented and the legal principles that guide such determinations.

In conclusion, the FWC delegate dismissed the application for an order to stop the bullying and also dismissed the substantive matter for having no reasonable prospect of success. The delegate found no basis for the member to cease dealing with the matter and no grounds for recusal. The substantive matter was dismissed due to the lack of a reasonable prospect of success, based on the evidence and legal arguments presented. This decision reflects the FWC's approach to ensuring fairness and efficiency in the resolution of workplace disputes.

Orders