Helen Berry

[2020] FWC 745

[2020] FWC 745

FAIR WORK COMMISSION

DECISION

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

Helen Berry
(AB2019/491)

COMMISSIONER WILLIAMS PERTH, 12 FEBRUARY 2020

Application for an FWC order to stop bullying.

[1] This decision concerns an application made by Ms Helen Berry (Ms Berry or the Applicant) under section 789FC of the Fair Work Act 2009 (Cth) (the Act) for an order to stop bullying.

[2] Following a conference held with the Applicant, the person named and Ms Berry's employer the Commission wrote to the parties requesting they provide witness statements and submissions concerning the matter of jurisdiction, in circumstances where the employer had explained that prior to Ms Berry making this application it had committed to a restructure of its business, which included making Ms Berry's position as the Chief Financial Officer (CFO) redundant and one of the jurisdictional prerequisites that must exist before the Commission is empowered to consider making an order to stop bullying is that “... there is a risk that the worker will continue to be bullied at work…” (s.789FF).

[3] Both parties have responded to the Commission's directions to provide materials and this decision concerns only the jurisdictional question referred to above.

Factual findings

[4] There is little dispute between the parties as to the factual history of this matter.

[5] Ms Berry is employed by Kira Community Services (Kira) as the Chief Financial Officer.

[6] Ms Berry explains in her application that from around the middle of 2019, she complained in emails to the Chief Executive Officer (CEO) about his behaviour and also complained by email to the Chair of Kira's Board and had subsequent discussions about these complaints with the new Chair Mr Woodhams.

[7] The witness statements of Mr Macdonald and Mr Woodhams demonstrate that Kira had previously restructured its operations to pursue a growth strategy during the period of transition to the National Disability Insurance Scheme. However, in 2019 the Board recognised that this strategy whilst yielding growth in revenue had also generated similar rates of growth in overhead costs, which they recognised as unsustainable.

[8] Consequently, at the 15 July 2019 Board meeting the CEO was instructed to prepare a restructuring proposal for the Board's consideration.

[9] Ms Berry in her application says that on 16 July 2019, she sent a follow-up email to the Chair of the Board Mr Woodhams asking if her complaint was being ignored purposefully in the hope that she would just resign and “...save redundancy cost”.  1

[10] Ms Berry says that there was a Board meeting on 19 August 2019, which she was not required to attend.

[11] At that 19 August 2019 Board meeting the CEO presented a report to the Board entitled “Right sizing the back of house business” which amongst its recommendations for structural change included making some positions redundant one of which was the CFO position.

[12] The Board approved this restructuring proposal at that 19 August 2019 meeting.

[13] On 22 August 2019, Ms Berry says she received a phone call from Mr Adrian Robinson from Brainbox who explained that the Board had engaged his services to assist with HR. After some discussion he proposed that they meet on 27 August 2019, which they did.

[14] Ms Berry explains in her applications and the materials provided in response to the Commission's directions above, that during the discussion with Mr Robinson on 27 August 2019, he advised the Board were planning a restructure and that some positions would be lost. She says he told her the Board had instructed him to make the CFO position redundant. He advised that consequently her employment was to end on Friday, 30 August 2019 and he explained the terms of the redundancy. After some discussion Ms Berry says Mr Robinson proposed to move her final employment date to 20 September 2019.  2

[15] A few days later Ms Berry provided her employer with a WorkCover First Certificate.

[16] Ms Berry then filed this application on 4 September 2019.

[17] Kira has not taken action with regard to the CFO position being made redundant because Ms Berry filed her workers compensation claim.

[18] Kira's position is that when Ms Berry is assessed as being fit for work, she will be formally notified that her position has been made redundant. It is apparent that consequently Ms Berry’s employment will then be terminated.

Consideration

[19] As set out in section 789FF the Commission has jurisdiction to make an order to stop bullying only where the Commission can be satisfied that the worker has been bullied at work and there is a risk that the worker will continue to be bullied at work. Both elements of section 789FF(1)(b) as set out below must be satisfied.

789FF FWC may make orders to stop bullying

(1) If:

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

(b) the FWC is satisfied that:

(i) the worker has been bullied at work by an individual or a group of individuals; and

(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;

then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.

(2) In considering the terms of an order, the FWC must take into account:

(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body—those outcomes; and

(b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes—that procedure; and

(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes—those outcomes; and

(d) any matters that the FWC considers relevant.

[20] For the purposes of this jurisdictional decision I have not considered whether or not Ms Berry has been bullied at work in the past. The Commission has not made any findings on that question.

[21] Rather this decision is based solely on whether the Commission can be satisfied that that there is a risk that Ms Berry will continue to be bullied at work in the future. The question to be determined is only whether or not subsection 789FF(1)(b)(ii) is satisfied.

[22] In her submissions Ms Berry argues that the intended redundancy of the CFO position is not a “genuine redundancy” apparently referring to the meaning of those words as prescribed in section 389.

[23] The question of whether or not making the CFO position redundant and terminating Ms Berry as a consequence meets the definition of genuine redundancy, provided in section 389 is not relevant to the determination of the jurisdictional question in this matter, which is not an unfair dismissal remedy application but rather an application for an order to stop bullying.

[24] In my view what is determinative in this matter is that Ms Berry's employer had already decided to make the CFO position redundant and consequently had taken steps to terminate her employment. However, before her employment was terminated intervening events, namely Ms Berry making a workers compensation claim, prevented her employer finalising that termination of her employment.

[25] The employer's intention when Ms Berry returns to work is to make the CFO position redundant and consequently terminate her employment.

[26] Considering all of the above I am not satisfied there is a risk that Ms Berry will continue to be bullied at work. Consequently, even if the other jurisdictional elements can be satisfied there is no jurisdiction for the Commission to make an order to stop bullying.

[27] This application must be dismissed for want of jurisdiction. An order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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 1   Page 5 of the Applicant's supplementary information attached to her form F72 at paragraph 2.

 2   Paragraph 12 - 22 of Ms Berry's submission dated 23 December 2019.