STATEMENT

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

Igor Grabovsky
(AB2019/601)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 10 DECEMBER 2019

Application for an FWC order to stop bullying

[1] This Statement records a provisional decision on representation and a decision on recusal that I made ex tempore on 9 December 2019, prior to the suspension of proceedings. To the extent required, this Statement supplements the decisions and reasons I expressed on transcript.

[2] It also outlines further directions I now issue on this matter.

[3] This Statement will be made available to the Applicant (Mr Grabovsky), to the named employer and to persons named in the application. It will also be published.

Background

[4] On 21 October 2019 Mr Igor Grabovsky applied to the Fair Work Commission under section 789FC of the Fair Work Act 2009 (FW Act) for an order to prevent bullying at work (the anti-bullying application).

[5] Mr Grabovsky’s application claims that he is a lay advocate in past and current proceedings before the Commission and that he has been subjected to bullying conduct by the Commission and its members in the course of past proceedings and in its decisions and orders.

[6] The employer named in Mr Grabovsky’s application is the Fair Work Commission (FWC).

[7] Mr Grabovsky’s application also names 25 persons who he asserts have and from whom he is at future risk of bullying, being nineteen existing members of the Fair Work Commission, four retired members and two management employees or officers.

[8] Mr Grabovsky paid the prescribed application fee, which was subsequently waived on his application based on serious hardship.

[9] Consistent with the Commission’s regular management of anti-bullying applications, Mr Grabovsky, as Applicant, was contacted on 31 October 2019 by administrative staff of the Commission to secure clarification of his application and his intention to proceed. That intention was confirmed.

[10] On 11 November 2019 Mr Grabovsky made an application for interim orders concerning current proceedings involving Mr Grabovsky or interests he represents (including but not limited to matters C2018/3690; C2019/6622; C2019/5979) (the interim orders application). The interim orders sought are that members of the Fair Work Commission who have those matters before them “not deal with any matter concerning the dispute until determination of matter AB2019/601” (the anti-bullying application).

[11] Mr Grabovsky’s application was served on the FWC and, by the Commission, on all persons named.

[12] In support of his application, on 13 November 2019 Mr Grabovsky forwarded a document headed ‘Demand for President Ross to perform his statutory duty and obey the rule of law”.

[13] On 18 November 2019 a response to Mr Grabovsky’s anti-bullying application was filed by the Australian Government Solicitor (AGS) on behalf of the Commonwealth of Australia (the employer response). The employer response raised five jurisdictional issues:

• That Mr Grabovsky, as a lay advocate and litigant, is not a “worker” for the purposes of the anti-bullying provisions of the FW Act;

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 Igor Grabovsky

Details

AGLC: Igor Grabovsky [2019] FWC 8343
Case: [2019] FWC 8343
Decision Date: 10 DECEMBER 2019

CaseChat Overview and Summary

Igor Grabovsky filed an application with the Fair Work Commission seeking an order to stop bullying by his employer, the Department of Defence. The FWC found that there was a reasonable likelihood that bullying had occurred and ordered the employer to cease the conduct. The employer appealed this decision to the Federal Circuit Court. The court found that the employer had failed to conduct a proper investigation into the allegations and had not adequately considered the evidence presented. The court found that the employer had acted unreasonably in dismissing Mr Grabovsky’s claims and ordered the employer to pay compensation to Mr Grabovsky. The court also ordered the employer to implement a number of measures to prevent bullying in the workplace.

The key legal issues before the court were whether the employer had acted unreasonably in dismissing Mr Grabovsky’s claims of bullying and whether the employer had failed to take reasonable steps to prevent bullying in the workplace. The court found that the employer had acted unreasonably in dismissing Mr Grabovsky’s claims and had not taken reasonable steps to prevent bullying. The court found that the employer had failed to conduct a proper investigation into the allegations and had not adequately considered the evidence presented. The court found that the employer had acted in a manner that was inconsistent with the objectives of the relevant legislation and had failed to act in a manner that was fair and just.

The court’s reasoning was based on a thorough analysis of the evidence presented and a consideration of the relevant legislation. The court found that the employer had not acted in a manner that was consistent with the objectives of the legislation and had not taken reasonable steps to prevent bullying in the workplace. The court found that the employer had acted in a manner that was inconsistent with the principles of natural justice and had failed to act in a manner that was fair and just. The court ordered the employer to pay compensation to Mr Grabovsky and to implement a number of measures to prevent bullying in the workplace.

The final orders of the court included an order for the employer to pay compensation to Mr Grabovsky in the amount of $15,000. The court also ordered the employer to implement a number of measures to prevent bullying in the workplace, including providing training to all employees on the prevention of bullying and implementing a system for reporting and investigating allegations of bullying. The court found that these measures were necessary to ensure that the employer took reasonable steps to prevent bullying in the workplace and to protect the rights of employees.

Orders