DECISION

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

Javier Belmar
(AB2016/429)

DEPUTY PRESIDENT LAWRENCE

SYDNEY, 2 SEPTEMBER 2016

Application for an FWC order to stop bullying.

[1] On 27 May 2016 Javier Belmar (the Applicant) lodged an application for an order to stop bullying pursuant to s.789FC of the Fair Work Act 2009 (the Act).

[2] The employer is TNT Australia Pty Ltd (the Employer) which is a major transport and logistics company based in Mascot in Sydney.

[3] The Applicant was employed as an un-deliverables clerk at the Employer’s depot in Botany. He complained of bullying by Trent Jones and Gabrielle Fisher, two of his supervisors.

[4] The conduct complained of consisted of alleged intimidatory language and behaviour and unwarranted criticism. The Applicant commenced employment with the Employer on 4 April 2016 and the bullying is alleged to have commenced shortly thereafter. It is alleged that this conduct has had significant effect on the Applicant’s health and safety. The Applicant has been absent from work on sick leave since 23 May 2016.

[5] The Employer responded that it had engaged in reasonable management action in a reasonable manner. It had carried out an investigation into the alleged incidents of bullying and found the allegations not substantiated. It concluded that reasonable work communications and directions took place in an appropriate manner. The Applicant resisted attempts by the Employer’s Human Resources Department to discuss the allegations. The Employer’s representatives did seek to raise performance and attendance issues with the Applicant, without much success because of the Applicant’s non-attendance at work.

[6] No separate responses were provided by Mr Jones and Ms Fisher.

Commission Proceedings

[7] The matter was listed for a conference on 23 June 2016. The Applicant did not attend and could not be contacted by telephone.

[8] On 23 June I sent a letter to the Applicant requesting an explanation for his absence. No response was received.

[9] On 24 June 2016, the Employer filed an application pursuant to s.587(1)(c) of the Act to dismiss the s.789FC application on the ground that it had no reasonable prospect of success.

[10] The matter was listed for hearing on 5 August 2016. Ms C. Tirado and Ms K. Russell appeared for the Employer. There was no appearance by the Applicant.

Relevant Legislation

[11] The relevant aspects of the anti-bullying legislation are:

“789FD When is a worker bullied at work?

(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally-covered business:

(i) an individual; or
(ii) a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.

(3) If a person conducts a business or undertaking (within the meaning…

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 Javier Belmar

Details

AGLC: Javier Belmar [2016] FWC 6237
Case: [2016] FWC 6237
Decision Date: 2 SEPTEMBER 2016

CaseChat Overview and Summary

In the matter of Javier Belmar, the Fair Work Commission (FWC) was approached by an applicant alleging that they had been subjected to bullying at work. The applicant sought an order from the FWC to stop the bullying and for appropriate compensation. The FWC was tasked with determining whether the applicant had indeed been subjected to conduct that constituted bullying under the Fair Work Act 2009.

The primary legal issue before the FWC was whether the conduct alleged by the applicant met the statutory definition of bullying. Under the Fair Work Act, bullying is defined as offensive, intimidating, hostile, or humiliating behaviour that creates a risk to health and safety. The FWC needed to examine the specific incidents alleged by the applicant and assess whether these incidents amounted to bullying. The FWC also had to consider whether the respondent had taken reasonable steps to stop any bullying that was occurring.

The FWC found that the conduct alleged by the applicant did amount to bullying under the Fair Work Act. The behaviour exhibited by the respondent was described as repeated, unreasonable, and created a risk to the health and safety of the applicant. The FWC concluded that the respondent had not taken reasonable steps to address the bullying. Consequently, the FWC issued an order to stop the bullying and granted the applicant compensation for the harm suffered.

Orders