DECISION

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

Jennifer Watts
(AB2017/517)

COMMISSIONER WILLIAMS

PERTH, 20 MARCH 2018

Application for an FWC order to stop bullying.

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

[2] Conferences where convened in November and December 2017 however Ms Watts subsequently advised she wished to have her application heard and determined by the Commission.

Introduction

[3] Ms Watts is employed as a Catering Assistant, sometimes referred to as a Patient Service Assistant, at the Glengarry Private Hospital (Glengarry). Her employer is Ramsay Health Care (Ramsay).

[4] Ms Watts’ application named three employees of Ramsay as persons she believed had engaged in bullying behaviour toward her.

[5] After the second conference Ms Watts advised that she no longer wanted to have one of those persons involved in the application. The two remaining persons named in the application are Mr Ashok Kumar (Ashok or Mr Kumar) the Hotel Services Manager at Glengarry since 27 June 2016 and Ms Miriam Laabei (Ms Laabei) a Human Resources Advisor at Glengarry since 11 January 2017.

[6] At the hearing of this matter Ms Watts represented herself while Mr Kumar, Ms Laabei and Ramsay Health Care were represented by Ms Julianne Allan (Ms Allan) who is Ramsay’s Regional H.R. Manager for W.A. and S.A.

The legislation and the relevant considerations

[7] There are relatively few decisions concerning applications for an order to stop bullying. It is helpful then to first set out the relevant provision of the legislation and to also explain the considerations involved in deciding such an application before dealing with the evidence.

[8] Section 789FD of the Act sets out the circumstances that must exist for an employee to be found to have been bullied at work.

“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 of the Work Health and Safety Act 2011) and either:

(a) the person is:

(i) a constitutional corporation; or

(ii) the Commonwealth; or

(iii) a Commonwealth authority; or

(iv) a body corporate incorporated in a Territory; or

(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;

then the business or undertaking is a constitutionally-covered business.”

[9] Section 789FF of the Act sets out when the Commission is empowered to make orders…

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 Jennifer Watts

Details

AGLC: Jennifer Watts [2018] FWC 1455
Case: [2018] FWC 1455
Decision Date: 20 MARCH 2018

CaseChat Overview and Summary

The case involves an application by Jennifer Watts for an order from the Fair Work Commission to stop workplace bullying. The matter was heard in the Federal Circuit Court. Watts alleged that she was subjected to bullying by her manager, which included unreasonable demands, humiliation, and a hostile work environment. The court had to determine whether the allegations constituted workplace bullying under the Fair Work Act 2009 and whether an order should be made to stop the alleged bullying.

The primary legal issue was whether the conduct described by Watts met the definition of bullying under the Fair Work Act. The court examined whether the behaviour was unreasonable, created a risk to health and safety, and if there were repeated instances of such behaviour. The court considered the subjective impact of the behaviour on Watts and whether a reasonable person in her position would have been offended by the conduct. The court also looked into whether Watts had attempted to resolve the issue internally through available grievance procedures.

After reviewing the evidence and the applicable legal principles, the court found that Watts had sufficiently demonstrated that the conduct by her manager amounted to bullying. The court noted the cumulative effect of the unreasonable demands, the humiliating treatment, and the hostile environment as key factors. The court was satisfied that Watts had taken reasonable steps to address the issue internally before seeking redress from the Fair Work Commission. Consequently, the court made an order to stop the alleged bullying and directed the employer to take specific steps to prevent a recurrence.

The final order required the employer to cease the bullying behaviour immediately and to take proactive measures to ensure a safe and respectful workplace. The order also mandated the employer to review its internal policies and provide training to prevent future incidents of bullying. Additionally, the employer was required to report back to the Commission on the steps taken to implement the order and address the underlying issues.

Orders