Application for an FWC order to stop bullying – owner/manager employed by property services company – services provided to bodies corporate associated with residential and short-term accommodation resort – preliminary jurisdictional issues – whether applicant was a worker – whether alleged conduct took place when applicant was at work in a constitutionally-covered business – whether respondent parties properly cited – applicant employed by a legal person conducing a business or undertaking – employer is also a trading corporation – applicant is a worker – not necessary to determine the status of the bodies corporate for present purposes – respondent parties are properly included subject to further consideration – matter to be listed for hearing.

1. Background and case outline

[1] Mr Manderson (the Applicant) has applied for an FWC order under s.789FC of the Fair Work Act 2009 (the FW Act) to stop bullying arising from alleged conduct by five people who have been named in the application. It is not presently necessary to identify these people and I will describe them as the “individuals named”. All of these parties are associated with the Xanadu Resort on the Gold Coast in Queensland and/or two Bodies Corporate; namely those established in relation to Xanadu East and Xanadu North (the individuals named and the Bodies Corporate are collectively described in this decision as being the respondent parties).

[2] The Xanadu Resort provides luxury, self-contained, beach front holiday and residential accommodation.

[3] Mr Manderson is a Shareholder/Director and employee of XMR Holdings Limited t/a Xanadu Resort (XMR), which has a contract to provide caretaking and letting services to the Bodies Corporate. That contract has apparently been subject to a disputed termination initiated by the Bodies Corporate. In that regard, I note that the termination of the contract is being disputed by XMR before the Queensland Civil and Administrative Tribunal (QCAT) under the Body Corporate and Community Management Act 1997 (Qld) (the BCCM Act). Proceedings are due to be conducted in that matter during 2016 however in the interim, the contract between XMR and the Bodies Corporate remains on foot.

[4] Mr Manderson, and all of the individual parties, are also either residents and/or owners of properties forming part of the Xanadu Resort.

[5] The general nature of the alleged conduct outlined in the application involves:

● Ongoing use of threatening, intimidating and derogatory language, allegedly used by all individuals named;
● Shouting and otherwise abusive language, again allegedly a behaviour of all individuals named; and
● Threats of violence and other actions including allegedly grabbing or snatching at the applicant’s property, by at least one of the individuals named.

[6] These are said to have occurred at various times and locations in the course of Mr Manderson’s duties including during his attendance at committee meetings of the Bodies Corporate and in the course of…

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 Duncan Manderson

Details

AGLC: Duncan Manderson [2015] FWC 8231
Case: [2015] FWC 8231
Decision Date: 7 DECEMBER 2015

CaseChat Overview and Summary

In Duncan Manderson, the Fair Work Commission (FWC) dealt with an application for an order to stop bullying in a workplace context. The applicant, Duncan Manderson, was employed as the owner and manager of a property services company, which provided services to various bodies corporate associated with a residential and short-term accommodation resort. The primary dispute centred on the preliminary jurisdictional issues surrounding the applicability of the FWC's powers to the case. The key legal issues the FWC needed to address were whether Manderson was considered a worker, whether the alleged conduct occurred while he was at work within a constitutionally-covered business, and whether the respondent parties were properly cited in the application.

The FWC began by determining whether Manderson qualified as a worker for the purposes of the Fair Work Act. The court found that Manderson was indeed a worker, as he was employed by a legal person conducting a business or undertaking. Additionally, the employer was identified as a trading corporation, which further supported the FWC's jurisdiction. The FWC also considered whether the alleged conduct occurred while Manderson was at work in a constitutionally-covered business. The court determined that it was not necessary to decide this issue at the preliminary stage and would be addressed during the substantive hearing. Lastly, the FWC examined whether the respondent parties were properly cited in the application. The court found that they were properly included but noted that further consideration might be required.

The FWC concluded that it had jurisdiction over the matter, with certain caveats, and ordered that the application be listed for a hearing. The court's decision to proceed to a substantive hearing demonstrated its willingness to address the jurisdictional issues in more depth once all relevant facts and arguments had been presented. The orders of the FWC were that the application would be listed for a hearing, and further consideration of the respondent parties' status would occur at that time.

Orders