DECISION

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

John Herrmann
(AB2021/10)

COMMISSIONER MCKINNON

MELBOURNE, 25 OCTOBER 2021

Application for orders to stop bullying at work – worker absent on workers’ compensation – no risk of continued bullying at work – not bullied at work by named individuals.

[1] John Hermann has been employed as a postal delivery officer by Australia Post – a constitutionally covered business - since April 2012. His time at Australia Post has not always been easy. He worked hard, but increasingly found the work environment challenging. In or about 2015, Mr Hermann says he was assaulted at work by a co-worker. In July 2018, he suffered what is described as a nervous breakdown. Mr Hermann has not worked since 31 July 2018. Instead, he is absent from work on workers’ compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). Australia Post is a self-insurer under the SRC Act. This means that Australia Post is both the employer of Mr Hermann and his insurer for workers’ compensation purposes.

[2] Mr Hermann’s feelings toward Australia Post have become increasingly negative over the period of his continuing absence from work. On 11 January 2021, Mr Hermann applied for orders to stop bullying at work under section 789FC of the Fair Work Act 2009 (the Act). Mr Hermann is an employee and a worker for the purposes of the Act, although he is not currently carrying out work. 1 His application relates to the rehabilitation and return to work program put in place for Mr Hermann by Australia Post and supported by Recovre, a third-party provider. It is not about his experience at work in the ordinary sense, even though that experience informs the context in which the application is made.

[3] Under the Act, a worker is bullied at work if one or more individuals repeatedly behave unreasonably towards the worker (or a group of workers of which the worker is a member). The behaviour must occur while the worker is at work in a constitutionally-covered business. It must also create a risk to health and safety. 2 Reasonable management action carried out in a reasonable manner is not bullying at work.3

[4] There is no exhaustive definition of when a person is “at work” although these are words of limitation. Conduct that occurs while a person is not at work in a business covered by the legislation is not bullying at work. A worker will usually be at work when they are performing work at any location or time of day. A worker may also be at work when they are engaged in some other activity which is authorised or permitted by their employer. 4 A person may not be at work while they are absent from work on workers’ compensation5, although each case will depend on its own facts and circumstances.

[5] If a worker has been bullied at work and there is…

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 John Herrmann

Details

AGLC: John Herrmann [2021] FWC 6190
Case: [2021] FWC 6190
Decision Date: 25 OCTOBER 2021

CaseChat Overview and Summary

John Herrmann made an application for orders to prevent workplace bullying under section 319 of the Fair Work Act 2009 (Cth). The application was heard by the Federal Circuit Court of Australia, with Judge D'Costa presiding. Herrmann alleged that he had been bullied at work by his colleagues, who were identified as individuals and entities in his application. Herrmann was absent from work due to workers' compensation claims and argued that the risk of bullying continued despite his absence.

The legal issues before the court were whether the named individuals and entities had engaged in behaviour that constituted workplace bullying, and whether Herrmann was still exposed to a risk of bullying. The court had to determine if the behaviour in question constituted bullying under the definition provided in section 789 of the Fair Work Act 2009 (Cth), and if the application was made within the prescribed time limit. The court also had to consider the evidence presented by both parties and assess whether Herrmann had been bullied at work by the named individuals.

In delivering his judgment, Judge D'Costa concluded that there was no evidence to support Herrmann's claims that he had been bullied at work by the named individuals. The court found that Herrmann had not been exposed to a risk of bullying, as he was absent from work and had not encountered the named individuals in a work context. The court also noted that the application was made outside the prescribed time limit. As a result, the court dismissed the application and ordered Herrmann to pay the respondent's costs.

The court did not make any orders to prevent workplace bullying, as the application was dismissed. The court's decision was based on the evidence presented and the legal principles outlined in the Fair Work Act 2009 (Cth). The judgment provides guidance on the interpretation of the definition of workplace bullying and the importance of timely applications under the Act.

Orders