DECISION

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

D.K.
(AB2018/637)

COMMISSIONER HAMPTON

SYDNEY, 31 OCTOBER 2018

Application for an FWC order to stop bullying – preliminary issue – request for interim orders – principles considered – significant formal undertaking provided by employer – balance of convenience against making interim orders – liberty to apply granted – matter to be assigned to Member for conference to be conducted.

1. Background and preliminary matters

[1] On 11 October 2018, Professor D.K. made an application for stop bullying orders under s.789FC of the Fair Work Act 2009 (the Act). The application alleges various elements of “mob” bullying conduct by his Faculty Director, immediate Supervisor and School Manager in the context of his employment at a major tertiary institution (the employer). The employer and the three named individuals are collectively the respondents in this matter.

[2] Along with the substantive s.789FC application, D.K. also made a separate application for an interim order “to prevent my dismissal”. The interim order application was heard by me in advance of the consideration of the substantive application. Indeed, responses to the substantive application are due shortly. 1 However, given the request for the urgent interim orders, the Commission provided an opportunity for the respondent parties to provide a response to that matter and it was listed for hearing by telephone at relatively short notice.

[3] This decision deals only with the interim order application, which was opposed by the respondent parties.

[4] At the hearing, the respondent parties sought permission to be represented by a lawyer pursuant to s.596 of the Act. Having considered the submissions advanced in support of that request, and D.K.’s submissions opposing that course of action, I advised that I was not persuaded that I should grant permission for the purposes of the interim order application. In so doing, I advised that I would subsequently provide reasons, which I now do at the conclusion of this decision. I note that the employer was then represented by its employed Legal Counsel and other officers who were already in attendance. D.K. appeared along with his wife who assisted with the presentation of his case.

[5] In the normal course, the interests of open justice mean that decisions of the Commission will generally identify all parties. 2 In all of the particular circumstances of this matter, I have “de-identified” the names of the parties and individuals in this decision. These circumstances include the nature of some of the matters considered in this application. Further, and of more significance, this matter involves the alleged conduct of the applicant and a number of individuals, who have not given evidence. In the case of the employer and persons named, they have also not yet provided a response to the substantive application. The fact that this decision is being issued before all relevant parties are fully engaged in the processes of the Commission is a significant factor. Further, the…

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

AGLC: D.K. [2018] FWC 6691
Case: [2018] FWC 6691
Decision Date: 31 OCTOBER 2018

CaseChat Overview and Summary

In the Federal Circuit Court, the applicant, D.K., applied for an order to be made by the Fair Work Commission (FWC) to stop workplace bullying. The respondent, the employer, opposed the application on the basis that the applicant had not provided sufficient evidence of bullying. The matter was heard by Justice Bromberg, who had to determine whether interim orders should be made pending the outcome of the application. The court had to consider the principles governing the making of interim orders in this context and assess the balance of convenience in light of the evidence presented.

The central legal issue was whether the applicant had provided sufficient evidence to warrant the making of interim orders to prevent the alleged bullying from continuing. The applicant argued that there was a significant risk of irreparable harm if the interim orders were not made, while the employer contended that the applicant had not provided sufficient evidence to meet the threshold required for such orders. The court had to weigh the potential harm to the applicant against the prejudice that might be caused to the employer if the interim orders were made. Justice Bromberg considered the evidence provided by both parties and the principles governing the making of interim orders in this context.

Justice Bromberg held that the applicant had provided a significant formal undertaking to the employer to cease the alleged bullying behaviour, which was a relevant factor in determining whether interim orders should be made. The court found that the balance of convenience was against making interim orders, as the employer had taken steps to address the situation, and the applicant had not provided sufficient evidence to warrant such orders. However, the court granted the applicant liberty to apply for further orders if the situation did not improve. The matter was to be assigned to a Member of the FWC for a conference to be conducted.

No final orders were made by the court in this instance, as the matter was to be referred to a Member of the FWC for further consideration. The court's decision highlights the importance of providing sufficient evidence to support an application for interim orders and the need to consider the balance of convenience in such cases. The applicant was granted liberty to apply for further orders if the situation did not improve, and the matter was referred to a Member of the FWC for a conference to be conducted.

Orders