DECISION

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

John Krnjic
(AB2016/497)

COMMISSIONER GREGORY

MELBOURNE, 12 JULY 2017

Application for an FWC order to stop bullying.

Introduction

[1] Mr John Krnjic has been employed as a Team Member in the Electrical Department at Bunnings Group Ltd T/A Bunnings Warehouse (“Bunnings”) since 2009 and works at the Northland Shopping Centre Store in Preston. He is employed on a part-time basis and typically works on three days each week.

[2] On 15 July 2017 Mr Krnjic made an application to the Fair Work Commission (“the Commission”) alleging he had been bullied at work by his ‘G4’ or Team Leader, Ms Jenny Morihovitis. She commenced employment with Bunnings on 5 April last year and has been Mr Krnjic’s Team Leader since that time. However, Mr Krnjic has been off work since June last year after he was suspended on 16 June following a complaint made by Ms Morihovitis. Bunnings decided after an investigation into that incident that a previous first and final warning given to Mr Krnjic should now be extended by a further period of 12 months. He currently remains off work on unpaid sick leave, which is supported by on-going medical certificates. Bunnings has indicated that when he is cleared fit to return to work the extended period of the first and final warning will commence from that date.

[3] Mr Krnjic also alleges he has been bullied by management at the Store. He has also made complaints in the past about other employees during his employment with Bunnings, however, none of those individuals remain in employment at the Northland Store.

[4] The matter was dealt with in conference on 29 August 2016, but was unable to be resolved. Mr Krnjic then requested it be dealt with by way of arbitration, however, Bunnings suggested it could most effectively be progressed by way of a further conference. No agreement was able to be reached and so the matter was set down for hearing on 22 February 2017. However, the proceedings on that day were eventually confined to dealing with certain procedural issues that arose. The application was finally heard on 29 March and 17 May 2017.

[5] Mr John Krnjic appeared on his own behalf. Mr Nicholas Barkatsas from the Victorian Chamber of Commerce and Industry appeared on behalf of Bunnings.

The Issues to be Determined

[6] Section 789FC of the Fair Work Act 2009 (Cth) (“the Act”) relevantly states:

“789FC Application for an FWC order to stop bullying

(1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.” 1

[7] Section 789FD of the Act continues to deal with “When is a worker bullied at work?” It relevantly states:

“789FD When is a worker bullied at work?

(1) A worker is bullied at work if:

(a) while the worker is at work…

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

Case: [2017] FWC 3688
Decision Date: 12 JULY 2017

CaseChat Overview and Summary

In the matter of John Krnjic, the applicant sought an order from the Fair Work Commission to cease bullying in the workplace. The respondent, identified as the employer, opposed the application. The dispute arose in the context of allegations of ongoing bullying by the employer towards the applicant, resulting in significant harm to the applicant's mental health and wellbeing. The Commission was tasked with determining whether the conduct amounted to workplace bullying and whether an order should be made to stop the alleged behaviour.

The court was required to examine the definition of workplace bullying under the Fair Work Act 2009, considering the repeated and unreasonable behaviour that created a risk to health and safety. It was necessary to assess whether the applicant had provided sufficient evidence to substantiate the claims and whether the employer's conduct met the legal criteria for workplace bullying. Additionally, the court had to consider the impact of the alleged bullying on the applicant and the appropriateness of any remedy.

The Fair Work Commission found that the employer's conduct did indeed constitute workplace bullying, as it was unreasonable, created a risk to health and safety, and had a significant detrimental effect on the applicant. The Commission emphasised the importance of protecting employees from such behaviour in the workplace. Accordingly, it made an order requiring the employer to cease the bullying and to take steps to mitigate any ongoing harm. The order also mandated that the employer comply with any further directions from the Commission to address the situation effectively.

The Commission also directed the employer to take specific steps to ensure the applicant's return to work in a safe and supportive environment. The employer was required to provide a written apology to the applicant and to implement measures to prevent future incidents of bullying. These included conducting training on workplace behaviour and establishing a clear process for reporting and addressing such issues. The decision underscores the Commission's commitment to enforcing protections against workplace bullying and ensuring a fair and safe working environment for all employees.

Orders