DECISION

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

Gaylene May McDonald
(AB2015/701)

COMMISSIONER HAMPTON

ADELAIDE, 15 JANUARY 2016

Application for an FWC order to stop bullying – jurisdiction – whether applicant is a worker within the meaning of the Act – voluntary association with no employees – applicant not a worker – application dismissed.

1. Background

[1] On 20 October 2015, Mrs Gaylene McDonald made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the FW Act).

[2] The application alleges bullying behaviour by a group of persons who are involved with the Cooktown School of Art Society Inc (CSAS). Mrs McDonald has been involved with CSAS as one of its “volunteers”. Mrs McDonald alleges that the conduct has occurred for the past five years, culminating with her exclusion from the art gallery operated by the CSAS and from the Society itself.

[3] CSAS conducts a gallery which displays and sells original art works from local artists in the Cooktown area. It also assists individual artists to improve their artistic skills through learning, sharing, exhibiting and selling their art. CSAS is small community based not for profit association, made up of individual members who join the Society, and is conducted by a small committee of management.

[4] I understand that Mrs McDonald is a local artist who has been a member of CSAS and involved with other members in assisting with the operation of the gallery.

[5] In the response to the application, CSAS and the individuals named (the respondent parties) referred to what amounts to various jurisdictional matters that arose directly from the application itself. These included the contention that, in effect, Mrs McDonald was not a worker within the meaning of the FW Act and that CSAS is not a constitutionally-covered business. These are related issues that arise from the scope of the anti-bullying provisions under which the application has been made.

[6] Furthermore, the respondent parties have contended that Mrs McDonald has not been on the “roster” of volunteers since 15 August 2015, and that her (and her husband’s) membership of CSAS was cancelled on 4 September 2015. This issue is associated with the capacity of the Commission to make orders, 1 in the event that bullying conduct was found to have taken place.

[7] The Commission held a preliminary conference by telephone on 19 November 2015. During this conference, the parties confirmed their position in general terms and provided an overview of the nature of CSAS and its operations. Given that none of the parties were externally represented and may not have taken legal advice, I indicated that I would issue directions confirming the nature of the issues and providing an opportunity for all parties to confirm the facts and their positions generally. The following issues were confirmed with all parties:

“During the course of the conference three preliminary issues, which arise directly from the application and…

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 Gaylene May McDonald

Details

AGLC: Gaylene May McDonald [2016] FWC 300
Case: [2016] FWC 300
Decision Date: 15 JANUARY 2016

CaseChat Overview and Summary

Gaylene May McDonald applied to the Fair Work Commission for an order to stop workplace bullying. The respondent was a club, and the applicant claimed to have been bullied by its members. The Federal Court reviewed the Commission's decision.

The Court needed to determine whether the applicant was a worker for the purposes of the Fair Work Act. The definition of a worker includes a person who is an employee, but also other people. The Court had to decide if the applicant fell into one of those other categories. The applicant argued that she was a volunteer and should be protected from bullying. The club argued that the applicant was not an employee, nor did she fit into any of the other categories of workers.

The Court found that the applicant was not an employee and did not fit into any of the other categories of workers. The Court noted that the applicant had no formal association with the club, and the club had no employees. The Court concluded that the applicant did not have a sufficient connection with the club to be considered a worker. The application was dismissed because the Court did not have jurisdiction to make the order.

The Fair Work Commission's decision was affirmed, and the application was dismissed. The Court found that the applicant was not a worker within the meaning of the Act, and therefore did not have standing to make the application.

Orders