DECISION

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

Harpreet Singh
(AB2015/282)

COMMISSIONER HAMPTON

ADELAIDE, 28 AUGUST 2015

Application for an order to stop bullying – jurisdiction – single incident – whether alleged conduct capable of meeting the requirement of being bullied at work – meaning of “repeatedly behaves unreasonably” – application dismissed.

1. Background

[1] On 19 June 2015, Mr Harpreet Singh 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 an employee, Mr Ashcroft, in a workplace conducted by Coca-Cola Amatil Australia Pty Ltd (CCA) in Brisbane. Mr Singh is an employee of Programmed Integrated Workforce Pty Ltd (PIW) and has been assigned to that workplace from time to time.

[3] Mr Ashcroft is an employee of CCA.

[4] I note that an earlier s.789FC application was made by Mr Singh concerning the incident that lies at the heart of this present matter. The original application was discontinued by Mr Singh apparently as a result of the Commission providing feedback about the particular parameters of the anti-bullying provisions of the FW Act.

[5] Mr Singh apparently reconsidered his circumstances and ultimately lodged the present application largely in the same terms.

[6] PIW, CCA and Mr Ashcroft (the respondent parties) have each raised jurisdictional objections to the application arising from the definition of bullying conduct under the FW Act. PIW has also raised an additional jurisdictional objection relating to the statutory prerequisites for making an order. I will return to this second aspect later in this decision.

[7] Mr Singh contends that on 31 December 2014, Mr Ashcroft acted unreasonably towards him and he was physically and verbally assaulted. Mr Singh accepts in his application that the conduct only occurred once. 1

[8] The respondent parties contend that the alleged bullying conduct described in the application is an isolated, one-off incident and as such does not satisfy the definition of bullying as per s.789FD of the FW Act. That is, the alleged conduct, which is denied, occurred once on Mr Singh’s own account, and the alleged incident occurred some six months ago with no further incidents occurring involving Mr Ashcroft.

[9] The Commission held a preliminary conference on 27 July 2015. Arising from the conference, directions for the filing of submissions and materials were issued in the following context as confirmed with all parties:

“(a) Harpreet Singh (the Applicant) has applied for an FWC order to stop bullying.
(b) There is apparently no contest that the applicant is a worker within the meaning of the Fair Work Act 2009 (the Act) and that any alleged conduct relied upon has taken place in the context of a constitutionally-covered workplace.
(c) There is a dispute about the precise circumstances of an altercation between Mr Singh and Mr Ashcroft and no findings have yet been made in that regard.
(d) The applicant accepts…

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 Harpreet Singh

Details

AGLC: Harpreet Singh [2015] FWC 5850
Case: [2015] FWC 5850
Decision Date: 28 AUGUST 2015

CaseChat Overview and Summary

Harpreet Singh, an employee of the Commonwealth Bank, applied to the Fair Work Commission seeking an order that the bank stop bullying him. The application arose from a single incident, which Singh described as bullying. The bank opposed the application on the basis that the incident did not constitute bullying within the meaning of the Fair Work Act 2009 (Cth). The Commission, sitting as a single member, was required to determine whether it had jurisdiction to hear the application and whether the alleged conduct met the statutory definition of bullying.

The central legal issue was whether the alleged conduct was capable of meeting the requirement of being bullied at work. Specifically, the Commission needed to determine whether the incident was an example of "repeatedly behaves unreasonably" towards the employee. The Commission noted that the definition of bullying in the Fair Work Act required that the conduct be repeated and unreasonable. The Commission held that a single incident could not constitute bullying, as it did not meet the statutory requirement of being repeated. Consequently, the application was dismissed as the Commission did not have jurisdiction to hear it.

The Commission found that the conduct complained of did not amount to bullying. The Commission noted that a single incident of unreasonable behaviour did not satisfy the statutory definition of bullying. The Commission concluded that the application was outside the Commission's jurisdiction as it did not relate to bullying at work. Therefore, the application was dismissed.

The Commission did not make any orders as the application was dismissed for lack of jurisdiction.

Orders