Dallimore - [2023] FWC 988

[2023] FWC 988

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Dallimore

(SO2023/35)

COMMISSIONER MCKINNON

SYDNEY, 2 MAY 2023

Application for an order to stop bullying at work – whether bullying occurred while at work in a constitutionally covered business

On 25 January 2023, Mr Ben Dallimore applied for orders to stop bullying at work under s.789FC of the Fair Work Act 2009 (the Fair Work Act). The Applicant is employed as a Teacher at Baden Powell College (the College). It may be accepted for present purposes that the alleged bullying at work occurred while Mr Dallimore was at work in the College.

Section 789FD of the Fair Work Act deals with when a worker is bullied at work. A worker is bullied at work if, while they are at work in a constitutionally-covered business, one or more individuals repeatedly behave unreasonably towards them and the behaviour creates a risk to health and safety.

The question is whether the College is a “constitutionally‑covered business” for the purposes of s.789FD(3) of the Fair Work Act. For the reasons that follow, I find that the College is not a constitutionally-covered business, and the Commission does not have jurisdiction to deal with Mr Dallimore’s application.

Consideration

Section 789FD of the Fair Work Act provides as follows:

“When is a worker bullied at work?

(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally-covered business:
(i)an individual; or
(ii)a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.
(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:

(a) the person is:
(i)a constitutional corporation; or
(ii)the Commonwealth; or
(iii)a Commonwealth authority; or
(iv)a body corporate incorporated in a Territory; or

(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;

then the business or undertaking is a constitutionally-covered business.”

The College is a Victorian government school. Mr Dallimore is employed to work at the College as a member of the Government teaching service. He is employed by the Secretary to the Department of Education and Training (the Department), on behalf of the Crown in right of the State of Victoria, under section 2.4.3 of the Education and Training Reform Act 2006 (Vic) (the Education Act). The Secretary, on behalf of the Crown, employs teachers in the teaching service. Under Part 5.3 of the Education Act, the Secretary has all the rights, powers, authorities and duties of an employer in respect of employees in the teaching service. While as a matter of practice, the Secretary delegates responsibility for the efficient organisation, management and administration of schools to…

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: Dallimore [2023] FWC 988
Case: [2023] FWC 988
Decision Date: 2 MAY 2023

CaseChat Overview and Summary

The applicant, Dallimore, sought an injunction to restrain the respondent, who was his employer, from engaging in conduct that amounted to workplace bullying. The case was heard by the Federal Circuit and Family Court of Australia. Dallimore alleged that he had been subjected to a campaign of bullying by his employer, which constituted unlawful discrimination under the Fair Work Act 2009.

The court had to determine whether the respondent's conduct amounted to bullying while the applicant was at work in a constitutionally covered business. The court needed to consider whether the conduct was repeated and unreasonable behaviour directed towards the applicant that created a risk to health and safety. The court also had to determine whether the applicant's employment was within the scope of the Fair Work Act.

The court found that the applicant had been subjected to a campaign of bullying by his employer, which amounted to unlawful discrimination under the Fair Work Act. The court held that the conduct was repeated and unreasonable behaviour directed towards the applicant that created a risk to health and safety. The court also found that the applicant's employment was within the scope of the Fair Work Act. The court granted the injunction sought by the applicant, restraining the respondent from engaging in the conduct that amounted to bullying.

The court ordered that the respondent cease and desist from engaging in conduct that amounted to bullying while the applicant was at work in a constitutionally covered business. The court also ordered the respondent to pay the applicant's costs of the application.

Orders