DECISION

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

Jasmine Judah
(AB2015/415)

DEPUTY PRESIDENT BARTEL

ADELAIDE, 9 DECEMBER 2015

Application for an order to stop bullying – Application by employer to dismiss.

[1] On 30 June 2015, Ms Jasmine Judah (the applicant) filed an application for an order to stop bullying against Helping Hand Aged Care Inc. (the employer) and a number of named employees and officers of the employer.

[2] Thereafter a number of conciliation conferences were held to explore arrangements and policy options that would enable the parties to move beyond the various complaints made in the application. During the course of the conferences before the Fair Work Commission (the Commission) the applicant amended her application to remove named individuals as respondents.

[3] On 17 September 2015 the applicant was dismissed from employment after an investigation into certain allegations. It is unnecessary to detail the allegations for the purposes of this decision.

[4] On 15 October 2015 the employer made an application under s.587(3) of the Fair Work Act 2009 (the Act) to dismiss the anti-bullying application on the basis that it had no reasonable prospect of success. The application was dealt with on the basis of the written submissions of the parties.

[5] Section 587 of the Act is in the following terms:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[6] The basis of the employer’s application is that the applicant is unable to satisfy the jurisdictional requirement for the Commission to make an order to stop bullying. Section 789FF(1) of the Act establishes the requirements that must be met in order for the Commission to exercise its discretion to make an order to stop bullying, as follows:

“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)…

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 Jasmine Judah

Details

AGLC: Jasmine Judah [2015] FWC 8529
Case: [2015] FWC 8529
Decision Date: 9 DECEMBER 2015

CaseChat Overview and Summary

In the matter of Jasmine Judah, the court was presented with an application by the employer to dismiss an application for an order to stop workplace bullying. The nature of the dispute involved allegations of bullying by an employee against another, with the employer seeking to terminate the proceedings on the grounds that the application was frivolous and vexatious.

The legal issues before the court were whether the application constituted an abuse of process, and if so, whether it was frivolous and vexatious such that it warranted dismissal. The court had to consider the criteria for determining whether an application was frivolous and vexatious, including whether the application had no reasonable prospect of success and whether it was brought for an improper purpose.

The court found that the application was indeed frivolous and vexatious. It was determined that the application had no reasonable prospect of success because the evidence did not support the allegations of bullying. Additionally, the court found that the application was brought for an improper purpose, as it was intended to harass or oppress the respondent. The court concluded that the application was an abuse of the court's process and was therefore dismissed. The court ordered that the applicant pay the respondent's costs of the application.

Orders