DECISION

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

Emmelline Snow
(AB2017/654)

COMMISSIONER HAMPTON

ADELAIDE, 22 DECEMBER 2017

Application for an FWC order to stop bullying – preliminary issue – request for interim orders – principles considered – significant undertaking provided by employer – balance of convenience against making interim orders – liberty to apply granted – matter assigned to Member for conference to be conducted.

1. Introduction

[1] On 12 December 2017 Ms Emmelline Snow made an application for stop bullying orders under s.789FC of the Fair Work Act 2009 (the Act). The application alleges various elements of bullying conduct by a Team Leader and Employee Relations Specialist at Flight Centre Travel Group Ltd T/A Flight Centre (Flight Centre) in Brisbane where Ms Snow is employed as an International Travel Consultant. Flight Centre and the named individuals are collectively the respondents in this matter.

[2] The s.789FC application includes contentions that after raising an issue with Human Resources regarding rates of pay and hours of work, the applicant was subject to unreasonable behaviour including the removal of her access to Eftpos and email facilities and various other accreditations used by travel consultants, threats of written warnings for vexatious reasons, disparaging the applicant in front of customers and staff and being singled out for unfavourable treatment.

[3] The respondents have opposed the s.789FC application and contend, amongst other matters, that the removal of Eftpos and email facilities represented reasonable management actions taken in a reasonable manner given Ms Snow’s absence from work. The respondents also deny that any conduct has taken place that would constitute relevant bullying behaviour within the meaning of the Act. The respondents deny that the applicant has been issued with a written warning, formal disciplinary action or formal performance management action. Rather, the respondents contend that Ms Snow has been issued with a Notice of Meeting to discuss an allegation that she failed to follow a reasonable management action when refusing to undertake some work as directed in the immediate period leading up to her announced absence. The applicant has been on leave since this time and this meeting has yet to take place.

[4] On 14 December 2017, and before the respondents had provided responses to the application, Ms Snow sought an interim order, in effect, on the basis that such would prevent the respondents from continuing with any disciplinary action pending the determination of the substantive anti-bullying application. In particular that:

● Flight Centre including but not limited to the named persons stop the specified behaviour; in this case adverse action, and reinstate Cybersource, emails and accreditations to allow me to return to work.
     ● That no further disciplinary action be taken about the current matter or new matters until the outcome of the application.
     ● Regular monitoring of behaviours by Flight Centre;
     ● Compliance with our workplace bullying policy;
     ● The provision of information and additional support and training to workers in…

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 Emmelline Snow

Details

AGLC: Emmelline Snow [2017] FWC 6910
Case: [2017] FWC 6910
Decision Date: 22 DECEMBER 2017

CaseChat Overview and Summary

In the matter of Emmeline Snow, the applicant sought an order from the Fair Work Commission to address bullying in the workplace. The case involved the applicant, Emmeline Snow, who alleged that she was subjected to bullying by her employer. The matter was heard before the Fair Work Commission, a tribunal with jurisdiction over employment disputes in Australia.

The central legal issue before the court was whether to grant interim orders to the applicant to prevent further bullying while the substantive matter was being decided. The court needed to consider the principles governing such interim orders, including the balance of convenience, the likelihood of success on the merits, and any significant undertakings provided by the respondent. The applicant argued for the immediate cessation of bullying, while the employer claimed that the allegations were unfounded and that interim orders were not necessary.

The court examined the principles that govern interim orders, particularly focusing on the balance of convenience. It noted that while the applicant had made serious allegations of bullying, the employer had provided a significant undertaking to address the issues raised. This undertaking included measures to prevent further bullying and to investigate the allegations thoroughly. The court found that the balance of convenience did not favour granting interim orders at that stage, given the employer’s undertaking. However, the court acknowledged the applicant’s concerns and granted the applicant the liberty to apply for further orders if the situation deteriorated. The matter was then assigned to a Member for a conference to be conducted, providing a further opportunity for the parties to address the issues.

Orders