DECISION

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

Janett Dobler
(AB2019/418)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 23 OCTOBER 2019

Application for an FWC order to stop bullying. - application to dismiss pursuant to s.587(1)(c) - whether application for order has no reasonable prospect of success - whether application should be adjourned pending hearing and determination of general protections proceedings - application to dismiss granted.

[1] By application lodged with the Fair Work Commission (the Commission) on 7 August 2019, Ms Janett Dobler (the Applicant) seeks an order to stop bullying (the anti-bullying application) pursuant to s.789FC of the Fair Work Act2009 (the Act). The Applicant alleges that she has been bullied at work during her employment with Royal Freemasons Homes of Victoria Ltd (Royal Freemasons). She alleges that she has been subjected to bullying at work by a colleague, who is employed by Royal Freemasons. The colleague together with Royal Freemasons are hereafter collectively referred to as the “Respondents”.

Background

[2] The Applicant’s application for an order to stop bullying pursuant to s.789FC of the Act was allocated to me on 19 August 2019 and I listed it for a conference to take place on 9 September 2019.

[3] At the conference, I determined that the anti-bullying application should be listed for hearing. On 10 September 2019, I issued directions as follows:

• the Applicantwas directed to file and serve a witness statement or an outline of position and statement of alleged facts and any other material on which she intended to rely, including the orders being sought from the Commission, by 4:00pm on 20 September 2019;

• Royal Freemasons were directed to file a witness statement or an outline of position and statement of alleged facts on which they intend to rely, and any further material in response to the allegations made, and the orders sought, by the Applicant by 4:00pm on 4 October 2019;

• the colleague was directed to file any response to the applications or any submissions or material in relation to the matter, should she wish to do so, by 4:00pm on 4 October 2019; and

• the application was listed for hearing on 10:00am on 10 October 2019.

[4] On 19 September 2019 the Applicant lodged her Submissions.

[5] On 24 September 2019 I received an email from the Applicant that attached a copy of a letter from Royal Freemasons to the Applicant dated 23 September 2019 that notified the Applicant that her employment had been terminated with effect from 23 September 2019 (the Termination Letter). It was evident from this email correspondence that the Applicant disputes the termination.

[6] On 24 September 2019 in an email sent from my chambers to the parties I sought the views of both parties in relation to the future conduct of the anti-bullying application. In particular, in the circumstances where the Applicant was no longer employed by Royal Freemasons, I raised the question as to…

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

AGLC: Janett Dobler [2019] FWC 7344
Case: [2019] FWC 7344
Decision Date: 23 OCTOBER 2019

CaseChat Overview and Summary

In the Fair Work Commission, Janett Dobler brought an application for an order to stop bullying against her employer. The application was filed in response to allegations of bullying and harassment in the workplace, which the applicant claimed had created a hostile work environment. The matter was heard by the Commission, which was tasked with determining whether the application should be dismissed and if so, whether it should be adjourned pending the outcome of related general protections proceedings.

The legal issues before the Commission were whether the applicant's application for an order had any reasonable prospect of success and whether the application should be adjourned pending the hearing and determination of the general protections proceedings. The Commission considered the relevant legal principles and precedents, as well as the evidence presented by both parties. In particular, the Commission noted that an application for an order to stop bullying could only be granted if it was established that the applicant had been subjected to bullying and that the employer had failed to take reasonable steps to address the issue.

After considering the evidence and arguments presented by both parties, the Commission found that the applicant's application for an order had no reasonable prospect of success. The Commission noted that the applicant had not provided sufficient evidence to establish that she had been subjected to bullying and that her employer had taken reasonable steps to address the issue. The Commission also found that the application should not be adjourned pending the outcome of the general protections proceedings, as the issues in the two proceedings were distinct and could be determined separately. As a result, the Commission granted the employer's application to dismiss the application for an order to stop bullying.

In summary, the Fair Work Commission dismissed the applicant's application for an order to stop bullying and found that it should not be adjourned pending the outcome of related general protections proceedings. The Commission's decision was based on a finding that the applicant's application had no reasonable prospect of success and that the issues in the two proceedings were distinct and could be determined separately. This decision provides guidance to employers and employees on the requirements for bringing an application for an order to stop bullying and the factors that the Commission will consider in determining such applications.

Orders