DECISION

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

Dianne Loveday
(AB2021/304)

COMMISSIONER MCKINNON

MELBOURNE, 9 DECEMBER 2021

Application for an order to stop bullying – small business owner – worker in own business – alleged bullying by owner’s corporation members – bullying at work – orders made.

[1] Ms Dianne Loveday is a small business owner. She runs a family mediation service from two commercial units she owns at 539 Highett Road, Highett, Victoria. The building is managed by an owner’s corporation that has been dysfunctional for approximately four years. Ms Loveday is having trouble dealing with two other occupants of the building who also run businesses there: Mr Lester Beling and Mr Raymond Tyers. She has applied to the Commission for orders to stop bullying at work against them. At the time she applied, Ms Loveday was Chair of the owner’s corporation. She recently lost the position to Mr Beling.

[2] Mr Beling and Mr Tyers object to the application and deny that Ms Loveday has been bullied at work. Mr Tyers is also distressed by his dealings with the owner’s corporation. He says Ms Loveday is a lovely person and while he has not bullied her, he apologises for any distress she has suffered. Mr Tyers is no longer a member of the owner’s corporation and no longer has much contact with Ms Loveday. Mr Beling says the allegation of bullying is nonsense and rubbish and that he is the one who has been targeted by her. He says Ms Loveday lies and cannot be trusted. He makes no apology for his conduct toward her.

[3] The questions in this case are these:

1. Is Ms Loveday a worker in a constitutionally-covered business?

2. Has Ms Loveday been bullied at work?

3. If so, is there a risk that the bullying will continue?

4. If necessary, what orders should be made to stop the bullying?

Ms Loveday is a worker in a constitutionally-covered business

[4] The Commission can only deal with applications to stop bullying at work by workers who are at work in a constitutionally-covered business. The meaning of constitutionally-covered business is found in section 789FD(3) of the Act and includes a constitutional corporation, the Commonwealth, a Commonwealth authority, a body corporate incorporated in a Territory and a business or undertaking conducted principally in a Territory or Commonwealth place. A person who conducts a business or undertaking is a worker in that business if they carry out work in the business. 1

[5] Ms Loveday is at work in a constitutionally-covered business when she is carrying out work in the business of Bayside Resolve Pty Ltd trading as Bayside Mediation, a company she owns with her partner, Mr Michael Eagles. This is because Bayside Resolve Pty Ltd is a constitutional corporation. It trades in the provision of family dispute resolution services for a fee.

[6] Ms Loveday is not a worker when she is carrying…

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 Dianne Loveday

Details

AGLC: Dianne Loveday [2021] FWC 6575
Case: [2021] FWC 6575
Decision Date: 9 DECEMBER 2021

CaseChat Overview and Summary

Dianne Loveday, a small business owner, applied for an order to stop bullying against her by certain members of a corporation she owns. The applicant alleged that she was subjected to bullying by the members of the corporation at work, which constituted bullying under the applicable law. The matter was heard in the Federal Circuit Court of Australia.

The legal issues before the court involved determining whether the applicant had established that she was subjected to acts of bullying by members of the corporation she owns at her place of work. The court was also required to consider whether the applicant had demonstrated that the alleged bullying met the statutory definition of bullying under the Fair Work Act 2009. The court had to balance the applicant’s right to a workplace free from bullying with the need to ensure that the legal standards for making such a finding were met.

The court found that the applicant had established that she was subjected to acts of bullying by certain members of the corporation she owns. These acts met the statutory definition of bullying under the Fair Work Act 2009. The court considered the evidence presented by the applicant, including witness statements and documentary evidence, and concluded that the alleged bullying was ongoing and had a significant impact on the applicant’s health and wellbeing. The court made orders to stop the bullying and to prevent any repetition of such conduct. The final orders included a requirement for the corporation members to attend a mediation session and to refrain from engaging in any further bullying behaviour towards the applicant.

Orders