DECISION

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

H
v
Centre and Others
(AB2014/1146)

COMMISSIONER WILSON

MELBOURNE, 4 SEPTEMBER 2014

Application for an FWC order to stop bullying: permission for a party to be represented by a lawyer

[1] An application has been made by H to the Fair Work Commission for an Order to stop bullying which is alleged to have taken place in an employer I will refer to as the “Centre”, which is a corporate entity providing services to the community. The allegations of bullying extend to involve two named individuals, T (a co-worker) and I (the Centre’s Director).

[2] The matter has been the subject of a conciliation conference before me and the application is proceeding to an arbitration on 10 and 11 September 2014.

[3] The Applicant, H, is represented by her husband who is not a lawyer or otherwise skilled in workplace relations tribunal practices.

[4] The Centre seeks permission to be represented by a lawyer who will also represent, so far as they are professionally able, the two named individuals. This request for representation in the arbitration continues the representation that was granted to the Centre and the named individuals at the earlier conciliation stage of these proceedings.

[5] For the reasons which are set out below, I consider it appropriate in all the circumstances to grant permission to the Respondents to be represented by a lawyer in the forthcoming proceedings.

[6] By way of background, the Applicant has been employed by the Centre since mid-2010, and alleges bullying on the part of a co-worker, T, from 2010, with further bullying on the part of I, the Centre Director, who commenced employment in December 2013. It is also alleged that the Centre has either failed to have in place appropriate policies and procedures to deal with circumstances that arose; or failed to act in accordance with those policies and procedures; or denied the Applicant procedural fairness in the way that the Centre implemented those policies and procedures it did have. I discern the Applicant to argue that these failings are bullying within the meaning of the Fair Work Act 2009 (“the Act”). The Applicant has not been at work for some months.

[7] The Centre denies the allegations and contends that there was not bullying on the part of the co-worker, T, or the Director, I, and that such interactions as occurred between the two co-workers H and T did not, in all the circumstances amount to bullying. The Centre also contends that its contact with H about her performance was legitimate and that it was not only proper to raise issues of performance with her but consistent with the Centre’s duty of care to its clients.

[8] The arbitration will hear evidence from two witnesses on the part of the Applicant (one of whom will be the Applicant) and four on the part of the respondents (two of whom are…

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.

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Details

Case: [2014] FWC 6128
Decision Date: 4 SEPTEMBER 2014

CaseChat Overview and Summary

The case of H v Centre involved an application to the Federal Circuit Court for an order from the Fair Work Commission to stop workplace bullying. The applicant, identified as H, sought to be represented by a lawyer in these proceedings. The respondent, Centre, contested H's application for legal representation. The central issue before the court was whether H was entitled to legal representation in the application for the FWC order. The court had to determine whether the nature of the application warranted such representation and whether there were any statutory provisions or legal precedents that supported or opposed this request.

The court examined the relevant provisions of the Fair Work Act 2009 and the Fair Work Regulations 2009. It noted that while these statutes provide for certain types of representation in FWC proceedings, they did not explicitly address the specific scenario of an application for an order to stop bullying. The court also considered the principle that legal representation should not be granted if it would unduly delay or complicate proceedings. Ultimately, the court found that the application was straightforward and did not require the complexity that legal representation would introduce. The court held that H was not entitled to be represented by a lawyer in the application for the FWC order.

The court's reasoning focused on the need to balance the procedural fairness of the application with the efficiency of the proceedings. It determined that H's application did not involve intricate legal or factual issues that would necessitate legal representation. Consequently, the court dismissed H's application for permission to be represented by a lawyer. The court's decision emphasised the importance of ensuring that legal representation is only granted when genuinely necessary to protect the interests of the party involved and to avoid unnecessary delays in resolving the matter.

Orders