[2015] FWC 5038 [Note: An appeal pursuant to s.604 (C2015/5122, C2015/5123) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

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

Garth Atkinson
(AB2015/251)

COMMISSIONER WILLIAMS

PERTH, 23 JULY 2015

Application for an FWC order to stop bullying.

[1] This decision concerns an application made by Mr Garth Atkinson (Mr Atkinson or the applicant) under section 789FC of the Fair Work Act 2009 (the Act). The Employer/Principal is Killarney Properties Pty Ltd (the Employer/Principal).

[2] This is the second application made by Mr Atkinson regarding his employment. This application was made on 8 May 2015 and has not been progressed due to the Commission dealing with the prior application (AB2014/175).

[3] On 4 June 2015 the Employer/Principal advised that Mr Atkinson’s employment had been terminated with effect on 3 June 2015. The Employer/Principal explained that it understood this may affect the Commission’s jurisdiction in relation to the determination of this application.

[4] Consequently the Commission wrote to Mr Atkinson and advised that the Commission’s preliminary view was that as a consequence of his employment having been terminated there was no risk of him being bullied at work in the future and therefore there was no power for the Commission to make an order to stop bullying and consequently his application had no reasonable prospect of success and should be dismissed. Mr Atkinson was invited to put any submissions on this preliminary view before the matter was decided.

[5] Mr Atkinson has provided written submissions opposing the Commission dismissing his application. Mr Atkinson made submissions regarding concerns raised in a previous Federal enquiry in 2012 into workplace bullying. Mr Atkinson challenged the reasoning and decision of Deputy President Gostencnik in the decision of Shaw v ANZ 1. Mr Atkinson submitted that the Commission should decide his application on terms other than those prescribed by the application and make a summary instead of an order and consequently there is no basis for his application to be dismissed because no order to prevent future bullying is required.

[6] Mr Atkinson’s submissions discloses that he has made an application under section 365 of the Act alleging the reasons for his termination of employment involve a breach of the general protections provisions.

The legislation

[7] The relevant parts of the legislation are set out below.

“789FA Guide to this Part

This Part allows a worker who has been bullied at work to apply to the FWC for an order to stop the bullying.

789FB Meanings of employee and employer

In this Part, employee and employer have their ordinary meanings.

Division 2—Stopping workers being bullied at work

789FC Application for an FWC order to stop bullying

(1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.

…

789FF FWC may make orders to stop bullying

(1) If:

(a) a worker has made an application under section 789FC;…

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 Garth Atkinson

Details

AGLC: Garth Atkinson [2015] FWC 5038
Case: [2015] FWC 5038
Decision Date: 23 JULY 2015

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Garth Atkinson, a former employee of Australian Unity, applied for an order to prevent his former employer from engaging in acts of bullying. Atkinson alleged that Australian Unity had engaged in conduct that constituted workplace bullying under the Fair Work Act. The respondent, Australian Unity, denied the allegations and argued that Atkinson's claims were unsubstantiated.

The court was required to determine whether the conduct of Australian Unity amounted to workplace bullying as defined in the Fair Work Act. The court considered whether the conduct was reasonable management action or if it constituted bullying. This involved assessing whether the conduct was unreasonable, created a risk to health and safety, and if it had the effect of humiliating, intimidating, or undermining Atkinson.

The court concluded that Australian Unity's conduct did not constitute workplace bullying. The evidence showed that the actions taken were reasonable management decisions and did not create a risk to health and safety or have the effect of humiliating, intimidating, or undermining Atkinson. The court found that the respondent had acted within its rights as an employer and that Atkinson's claims were not substantiated. The application was dismissed with costs.

Australian Unity was ordered to pay Atkinson's costs of and incidental to the proceeding, to be paid within 14 days.

Orders