REASONS FOR DECISION

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

F.G.
(AB2019/326)

COMMISSIONER HAMPTON

ADELAIDE, 12 SEPTEMBER 2019

Application for an FWC order to stop bullying - preliminary proceedings - party unable to participate in proceedings but continuing alleged risk of workplace bullying conduct – whether interim order should be made – strong prima facie case – balance of convenience in favour of order that protected the health and safety of all parties – interim order made.

1. What this Decision is about

[1] Mr F.G. 1 (the Applicant) has 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 Manager and Co-director of his workplace, Ms O.O. (the Person Named). The workplace is a retail services business conducted by a Corporate Trustee.2 The application is supported by his employer but strongly opposed by the Person Named.

[2] On 10 September 2019, following a process to be outlined below, I issued an Interim Order in this matter that was designed to prevent unreasonable workplace related conduct by any of the parties pending the hearing and determination of this matter.

[3] This Decision explains the context and reasons for taking that action.

2. The context for the consideration of an Interim Order

[4] The Commission initially organised on two occasions, with the apparent support of the parties, a mediation conference. Each scheduled conference involved an Interpreter for both the Applicant (Farsi) and the Person Named (Turkish). It is apparent from the materials provided by the parties that whilst each of these parties have reasonable written English communication and general verbal skills, on more complex and technical matters, assistance is required for each to fully participate in any proceedings before the Commission. On the first occasion, the Person Named did not attend and when followed up by the Commission, staff were advised that her General Practitioner was not recommending that she see anyone associated with her workplace and that there were proceedings involving the other owner of the business (Mr E.T.) about her separating from the business (the business litigation). The Person Named had earlier provided a medical certificate for a closed period that expired prior to the scheduled conference. On the second occasion, the Person Named provided a medical certificate on the eve of the conference and it was subsequently cancelled by the Commission.

[5] The Applicant and Mr E.T. reported to the Commission that despite the medical certificate and the status of the business litigation, the Person Named continued to visit the workplace (where she remained a Co-owner) and that she continued to engage with the Applicant about this application in an allegedly unreasonable manner. The Applicant and his employer sought that the Commission issue some Orders to prevent further bullying conduct. I have included the above for context and confirm that no findings have been made about the alleged conduct…

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 F.G.

Details

AGLC: F.G. [2019] FWC 6283
Case: [2019] FWC 6283
Decision Date: 12 SEPTEMBER 2019

CaseChat Overview and Summary

The applicant sought an interim order from the Fair Work Commission (FWC) to prevent workplace bullying. The respondent, unable to participate in the proceedings due to their condition, allegedly continued to pose a risk of bullying conduct. The dispute was heard in the FWC. The legal issues centred on whether an interim order should be granted considering the applicant's inability to participate and the potential risk of harm. The court had to assess the strength of the prima facie case for bullying and weigh the balance of convenience in favour of an order that would protect the health and safety of all parties involved.

The court examined the evidence presented and determined that there was a strong prima facie case for workplace bullying. The applicant had provided sufficient information to establish a compelling case, which indicated a serious risk to the respondent's health and safety if the alleged bullying continued. The court also considered the balance of convenience, noting that an interim order would better protect the health and safety of all parties. Given these factors, the court concluded that the order should be made to prevent any further harm to the respondent and maintain a safe working environment.

In light of the findings, the court made an interim order to prevent the alleged bullying conduct. This decision aimed to protect the health and safety of the respondent and maintain a conducive work environment for all parties involved. The order was a necessary measure to address the immediate risk posed by the respondent's alleged conduct, pending the outcome of the full proceedings.

Orders