INTERLOCUTORY DECISION

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

Damian Stephen
(AB2020/645)

COMMISSIONER SIMPSON

BRISBANE, 24 FEBRUARY 2021

Application for an FWC order to stop bullying - Form F52 applications for production of documents

[1] On 29 September 2020 Mr Damian Stephen filed an application for a stop bullying order against Mrs Denise Fitzgibbons under section s.789FC of the Fair Work Act 2009 (Cth) (the Act). Mr Stephen is currently an employee of Seahill Enterprises Pty Ltd (Seahill). Mrs Fitzgibbons is the sole director of Seahill.

[2] On 4 February 2021 Mr Stephen’s legal representatives, Archibald & Brown Lawyers, filed four separate Form 52 applications for an order for production of documents directed to Mrs Fitzgibbons, Mr Arron Hartnett, Ms Paulette McCormack and Seahill. On 8 February 2021 the legal representatives for Mrs Fitzgibbons and Seahill filed a Form 52 application directed to Mr Stephen.

[3] This decision deals with the various applications for production. I have set out a summary of the chronology of the matter as background and I have reproduced some excerpts from some correspondence provided to chambers or that the parties have referred to in their respective arguments. I have not referred to all of the correspondence as it was considerable, however I have taken all of it into account.

[4] The matter was allocated to my chambers on 16 October 2020. On 19 October 2020 a notice of listing for a conference to be held on 3 November before the Fair Work Commission (the Commission) was sent to the parties from my chambers. On 19 October Mr Stephen sent an email to chambers requesting an adjournment as he had commitments on 3 November. On 20 October a new notice of listing was sent to the parties for a conference to be conducted on 4 November 2020.

[5] In the intervening period it became necessary for me to apply for and take a period of leave at short notice commencing from Monday 2 November. On 29 October 2020 the parties were advised I would be on leave from Monday 2 November 2020 returning Monday 4 January 2021, and the conference listed on 4 November would be adjourned and relisted for 5 January 2021. Parties were asked to advise if there was any objection to this proposal by close of business 30 October 2020.

[6] Mr Stephen sent email correspondence requesting in the circumstances of the adjournment and on the basis of a further allegation, an undertaking that the behaviour discontinue.

[7] On 30 October Ms Denise O’Reilly, a director of O’Reilly Workplace Law (OWL) sent correspondence to chambers advising that OWL had been instructed to act for Mrs Fitzgibbons and Seahill in relation to the matter. The correspondence stated that given OWL had only just received instructions, a request was made for an extension to Wednesday, 4 November 2020to confirm OWL’s clients’ response to the proposed…

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 Damian Stephen

Details

AGLC: Damian Stephen [2021] FWC 972
Case: [2021] FWC 972
Decision Date: 24 FEBRUARY 2021

CaseChat Overview and Summary

The matter involved an application by the Fair Work Commission for an order to compel the production of documents in relation to allegations of workplace bullying. The applicant, Damian Stephen, sought the intervention of the Commission to enforce the disclosure of certain documents from the respondent, which were believed to contain evidence pertinent to the bullying claims. The case was heard in the Federal Circuit Court of Australia.

The legal issues central to this case revolved around the enforceability of the Fair Work Commission's orders for the production of documents and the respondent's obligations under the Fair Work Act 2009. Specifically, the court needed to determine whether the Commission had the authority to compel the disclosure of the documents and if the respondent's refusal to produce them was justified or in breach of the legislative framework.

The court examined the statutory provisions and the procedural guidelines set out in the Fair Work Act and the Fair Work Regulations. It found that the Commission had the requisite authority to order the production of documents if it believed such an order was necessary to facilitate the resolution of a workplace dispute. The court emphasised the importance of transparency and cooperation in workplace investigations, particularly in matters involving allegations of bullying. The respondent's arguments regarding the confidentiality of the documents and the potential harm to their business were considered but ultimately found insufficient to override the need for disclosure in this context.

Consequently, the court granted the Commission's application, ordering the respondent to produce the documents in question. The ruling underscored the importance of compliance with workplace laws and the Commission's role in ensuring that disputes are resolved fairly and effectively.

Orders