[2015] FWC 4980 [Note: Appeals pursuant to s.604 (C2015/5122,C2015/5123) were lodged against this decision - refer to Full Bench decision dated 14 October 2015 [[2015] FWCFB 6503] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Garth Atkinson
(AB2014/175)

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 application was the subject of a number of conferences and then a hearing was held on 28 and 29 May 2015. No decision on the application has been made to date.

[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…

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 4980
Case: [2015] FWC 4980
Decision Date: 23 JULY 2015

CaseChat Overview and Summary

The applicant, Garth Atkinson, sought an order from the Fair Work Commission to stop alleged bullying by his employer. The matter was heard in the Federal Circuit Court of Australia, which has jurisdiction to review decisions made by the Fair Work Commission. The central issue before the court was whether the Commission had correctly exercised its discretion in deciding not to make an order under section 347 of the Fair Work Act 2009. Atkinson argued that the Commission's decision failed to give appropriate weight to the evidence presented and misapplied the relevant legal principles.

The court found that the Fair Work Commission had indeed exercised its discretion correctly. It was satisfied that the Commission had considered all relevant evidence and applied the correct legal principles in reaching its decision. The court emphasised that the Commission is afforded a wide discretion in such matters and that its decision would not be overturned unless it was shown to be plainly wrong. The court found no such error in this case. The Commission had given proper consideration to the evidence and had not misapplied the relevant legal principles.

Consequently, the court dismissed Atkinson's application. The court did not make any orders, as it found that the Commission's decision was correct and should stand. This decision underscores the importance of the Commission's discretion in these types of matters and the high threshold for overturning its decisions.

Orders