Application for an FWC order to stop bullying – application for urgent interim relief – urgent listing and ex tempore decision – applicant directed to obtain medical evidence of fitness to work – no threat of dismissal – interaction of disciplinary action and stop bullying applications – orders refused or otherwise adjourned – recommendation that the applicant cooperate and comply with process of establishing his fitness for work.

[1] Given the urgency of this application, I have not set out all of the submissions of the parties in the usual way. However, the parties’ submissions have all been considered in my determination of the matter. When I delivered the decision ex tempore on 26 July 2019, I reserved the right to make editorial and stylistic changes in the published decision. This is that decision.

[2] Mr Daniel Krcho (the applicant) has filed an application with the Fair Work Commission (the ‘Commission’) for urgent interim relief and other orders in respect to his belief that his employment with the University of New South Wales (‘UNSW’, the ‘University’ or the ‘respondent’) is to be terminated at 4pm on Friday 26 July 2019 (having previously been extended from 19 July 2019 and now extended for a further 7 days). The order he seeks is as follows:

‘Application for Interim Order to Prevent Dismissal as Imminent Dismissal has been notified by the employer to occur at 4.00 PM on Friday 26/07/2019.’

[3] The second order sought is to confirm my decision of 24 December 2018 issused to the parties via an email from my Chambers that these substantive stop bullying proceedings are adjourned until Mr Krcho advises that he has been certified fit to prepare for, and conduct his case. There is no need to confirm this decision. It stands unless otherwise sought to be varied, or it is ultimately complied with.

[4] There are three other orders sought which relate to various matters associated with the applicant’s substantive application for stop bullying orders which was filed on 11 October 2018. There have been various listings, conferences and interlocutory applications filed over the almost ten months since the application was filed (including two earlier applications for urgent interim relief).

[5] Given the nature of the orders sought above, I do not consider these other matters to be urgent. In any event, they must be dealt with in an orderly and procedurally fair fashion. Seeking such other orders with one or two days’ notice to the respondent does not provide a fair or reasonable opportunity to properly consider what is being sought by the applicant, and how to respond to his often confusing and jurisdictionally doubtful claims.

[6] The programming of this matter has been, and continues to be complicated by the applicant’s insistence that the only communication he will have with, and receive…

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 Daniel Krcho

Details

AGLC: Daniel Krcho [2019] FWC 5278
Case: [2019] FWC 5278
Decision Date: 31 JULY 2019

CaseChat Overview and Summary

The applicant, Daniel Krcho, sought an order from the Fair Work Commission (FWC) to halt alleged workplace bullying by his employer. The Commission was asked to list the matter urgently and make an ex tempore decision. The nature of the dispute was the applicant's claim that his employer was engaging in conduct that amounted to workplace bullying, contrary to the Fair Work Act. The court was required to decide whether the applicant's claims were sufficient to warrant an urgent interim order and whether there was any risk of the applicant being dismissed if the order was not granted.

The court considered the interaction between the applicant's claims of bullying and the disciplinary action taken by the employer. It noted that the applicant had not provided medical evidence of his fitness to return to work, despite being directed to do so. The court also considered that there was no immediate threat of dismissal and that the applicant's claims of bullying were not substantiated. The court found that the applicant's claims did not warrant an urgent interim order and that the application should be adjourned until the applicant had provided the necessary medical evidence. The court also recommended that the applicant cooperate with the process of establishing his fitness for work.

The court refused the applicant's orders and adjourned the matter until the applicant had provided the necessary medical evidence. The court noted that the applicant's claims of bullying were not substantiated and that there was no immediate threat of dismissal. The court recommended that the applicant cooperate with the process of establishing his fitness for work and that the matter be listed for further hearing once the necessary evidence had been provided. The court's decision was based on the evidence presented and the legal principles applicable to applications for urgent interim relief and stop bullying orders.

Orders