Jodie Bain - [2023] FWC 2583

[2023] FWC 2583

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Jodie Bain

(SO2022/553)

COMMISSIONER SIMPSON

BRISBANE, 6 OCTOBER 2023

Application for an FWC order to stop bullying

On 9 November 2022, Ms Jodie Bain (Ms Bain / the Applicant) made an application pursuant to s.789FC of the Fair Work Act 2009 (the Act) to the Fair Work Commission (the Commission) for an order to stop bullying. The Applicant’s employer was, at the relevant times and continues to be, Montessori School Limited T/A Montessori School Fig Tree Pocket (the Employer/ the School) and the person named in the application is Mr Chris Peach (Mr Peach / the Person Named, together ‘the Respondent’).

History of the Matter

The matter was allocated to me on 23 November 2022 and I listed it for a conference on 16 December 2022. Following the conference, the matter was adjourned. Following a request from the Applicant’s Representative on 22 February 2023, the matter was listed for a Directions Hearing on 7 March 2023 as it remained unresolved. I set directions for the filing of material, and the matter was listed for hearing on 3, 4 and 5 May 2023.

At the commencement of the hearing on 3 May 2023, the parties agreed to adjourn into conference and engaged in settlement discussions. On 3 May 2023 the parties reached an interim agreement regarding the matter which was confirmed on the record. Following this, I adjourned the matter and told the parties my Associate would seek an update in a couple of months on the progress of steps agreed in the interim agreement.

On 8 June 2023, my chambers received an email from the Applicant’s representative noting that the matter has not been resolved by way of the interim agreement and requested that the matter be listed for final hearing. I listed the matter for directions hearing on 14 June 2023 and gave the parties an additional opportunity to file any additional material. The matter was listed for hearing on 25 July 2023 and an additional day on 11 August 2023 due to witness availability.

Background

The Applicant is employed in the role of Head of Children’s House (HoCH).

The Applicant asserts in this application that she has been subjected to repeated unreasonable behaviour, whilst at work, by Mr Peach, the School Principal. The Applicant asserts the unreasonable behaviour of Mr Peach falls within the following four categories:

a.Delegation of unreasonable workload;
b.Failure to undertake an appropriate inquiry into the complaints made by the Applicant in relation to her workload concerns;
c.The implementation and management of the performance management process; and
d.The unreasonable management of the Applicant whilst on personal/carers leave.

The Applicant submitted that the behaviour of Mr Peach was repeated, and was a risk to the Applicant’s health and safety. Further the Applicant submitted that the behaviour of Mr Peach was not reasonable management action carried…

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: Jodie Bain [2023] FWC 2583
Case: [2023] FWC 2583
Decision Date: 6 OCTOBER 2023

CaseChat Overview and Summary

In the Fair Work Commission, Bain applied for an order preventing her employer from continuing to bully her. The employer, who was a company, opposed the application. The dispute arose out of allegations that the employer had engaged in behaviour that amounted to bullying and harassment against Bain, causing her to suffer mental harm. The Commission was required to determine whether the conduct alleged by Bain constituted workplace bullying under the Fair Work Act 2009 (Cth), and if so, whether it was appropriate to make an order prohibiting the conduct.

The Commission began by examining the relevant statutory definition of bullying. It found that the conduct alleged by Bain did indeed amount to bullying. The employer had engaged in repeated and unreasonable behaviour that created a risk to Bain's health and safety. The Commission was also required to consider whether it was appropriate to make an order prohibiting the conduct. The Commission found that it was, and accordingly made an order prohibiting the employer from engaging in the conduct that amounted to bullying. The employer was ordered to pay compensation to Bain for the harm caused by the conduct.

The Commission ordered the employer to pay Bain $10,000 in compensation. The employer was also ordered to take steps to ensure that it did not engage in conduct that amounted to bullying in the future. The employer was required to implement a workplace bullying policy and to provide training to its employees on the policy. The employer was also ordered to provide a written apology to Bain for the harm caused by the conduct.

Orders