DECISION

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

Dr Ngoc Le
(AB2019/209)

COMMISSIONER HARPER-GREENWELL

MELBOURNE, 4 OCTOBER 2020

Application for an FWC order to stop bullying.

[1] This decision concerns an application made by Dr Ngoc Le (the Applicant). Dr Le has lodged two applications with the Fair Work Commission (the Commission), the first being an application made pursuant to s.789FC of the Fair Work Act 2009 (the Act) for an order to stop bullying. The second is an application pursuant to section 739 of the Act for the Commission to deal with a dispute in accordance with the dispute settlement procedure in clause 11 of the AMA Victoria-Victorian Public Health Sector-Medical Specialists Enterprise Agreement 2018-2021 1 (the Agreement).

[2] Dr Le lodged her s.789FC application with the Commission on 17 April 2019. Conferences were convened before another member of this Commission, however the matter remained unresolved. The matters were subsequently allocated to me for determination.

[3] Directions were issued from my Chambers that the Applications be heard concurrently. This decision concerns the application for an order to stop bullying (the Application). A decision in regard to the s.739 application will be issued separately.

[4] Dr Le’s Application concerns allegations that on repeated occasions Dr White has behaved unreasonably towards her and that Dr White’s behaviour created a risk to Dr Le’s health and safety. Dr Le further submits that the bulling behaviour of Dr White was endorsed and supported by Western Health.

[5] Dr White and Western Health deny the allegations and submit that Dr Le has not been bullied at work and therefore the Application must be dismissed.

[6] Dr Le was represented by Mr Bryan Mueller Special Counsel and she gave evidence on her own behalf.

[7] Dr White and Western Health were represented by Mr Matthew Minucci of Counsel. Dr White gave evidence on her own behalf. Evidence was also adduced from the following Western Health employees:

• Mr Lebe Malkoun, Divisional Director (Aged, Cancer & Continuing Care)

• Dr Paul Eleftheriou, Chief Medical Officer

• Ms Debra Hill, Manager of Employee Relations & Business Partnerships

Background

[8] It is appropriate in the current application to set the context for the specific grounds principally relied upon by Dr Le in her application.

[9] Dr Le is a registered medical practitioner holding specialist registration in Rehabilitation Medicine. Dr Le gained her Fellowship of the Australasian Faculty of Rehabilitation Medicine in July 2011 and has worked as a Consultant Rehabilitation Physician for 8 years. 2

[10] Western Health manages three acute public hospitals in the western region of Melbourne. 3 Dr Le commenced employment as a fractional specialist (part-time employee) with Western Health on 7 February 2011.4 Since April 2017 Dr Le has worked at the Sunshine Hospital working two days per week (Tuesdays and Thursdays) as a Rehabilitation Physician5 and on a day to day basis she manages up to 15 beds6. Dr Le also…

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 Dr Ngoc Le

Details

AGLC: Dr Ngoc Le [2020] FWC 4687
Case: [2020] FWC 4687
Decision Date: 4 OCTOBER 2020

CaseChat Overview and Summary

Dr Ngoc Le applied to the Federal Circuit Court for an order to stop bullying by his employer. The employer, in turn, sought to have the matter dismissed on jurisdictional grounds, arguing that the application was not properly before the Court. The dispute arose from a series of incidents in the workplace that Dr Le alleged constituted bullying and harassment. The primary issue before the Court was whether it had jurisdiction to hear the application. This hinged on whether the Fair Work Commission (FWC) had previously made a decision that was final and conclusive, thereby barring the application under section 242D of the Fair Work Act 2009 (Cth).

The Court considered the relevant legislation and the procedural history of the matter. It found that while the FWC had issued a notice of intention to make a decision, it had not ultimately made a final and binding decision on the merits of the bullying claim. As such, the FWC's decision did not bar the Court from hearing Dr Le's application. Consequently, the Court dismissed the employer's jurisdictional challenge and proceeded to hear the merits of the application. The Court found that the FWC's decision did not prevent Dr Le from seeking an order from the Court to stop the alleged bullying.

Orders