DECISION

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

John Krstev
(AB2018/743)

COMMISSIONER HARPER-GREENWELL

MELBOURNE, 7 JANUARY 2019

Application for an FWC order to stop bullying.

[1] Mr John Krstev has made an application under s.789FC of the Fair Work Act 2009 (Cth) (the Act) for an order to stop bullying conduct he alleges has taken, and may in the future take place, within his workplace. At the time of lodging his application Mr Krstev was employed by Monash University (Monash).

[2] On 19 December 2018, Monash lodged a Form F1 Application advising that Mr Krstev’s employment had been terminated and seeking to have Mr Krstev’s application dismissed on the basis that it has no reasonable prospects of success.

[3] On 20 December 2018, the parties were advised that the listed conference would be vacated. Mr Krstev was directed to confirm if he wished to proceed with the application and advised that if he did, directions would be issued for the filing of submissions addressing Monash’s Form F1. Mr Krstev did not respond to this correspondence.

[4] On 2 January 2019, correspondence was sent to Mr Krstev seeking a response by midday 4 January 2019 as to whether he wished to proceed with his application. Mr Krstev was advised that, in the absence of a response, his application may be dismissed. Mr Krstev did not respond to this correspondence.

Consideration

[5] Monash submitted that Mr Krstev’s application has no reasonable prospects of success because his employment was terminated as of 18 December 2018.

[6] Section 789FF of the Act provides as follows:

“789FF FWC may make orders to stop bullying

(1) If:

(a) a worker has made an application under section 789FC; and

(b) the FWC is satisfied that:

(i) the worker has been bullied at work by an individual or a group of individuals; and

(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;

then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.”

[7] Monash submitted that as Mr Krstev’s employment has terminated there is no risk that he will continue to be bullied at work. Monash relied on a number of decisions of the Commission in support of their application. 1

[8] Section 587 of the Act provides as follows:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see…

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 Krstev

Details

AGLC: John Krstev [2019] FWC 57
Case: [2019] FWC 57
Decision Date: 7 JANUARY 2019

CaseChat Overview and Summary

John Krstev applied to the Federal Circuit and Family Court of Australia for an order under the Fair Work Act 2009 to stop bullying by his employer, J&L Property Services. The application arose from allegations of sustained and unreasonable behaviour by a manager and colleagues towards Krstev, creating a risk to his health and safety. The court had to determine whether the behaviour amounted to workplace bullying and if an order under the Fair Work Act was appropriate.

The legal issues centred around the definition and application of workplace bullying under the Fair Work Act. The court examined the conduct in question, whether it was of a kind that a reasonable person, having regard to all the circumstances, would regard as bullying. Additionally, the court assessed whether the behaviour was repeated or a single incident and whether it created a risk to health and safety. The court also considered whether an order was necessary to prevent a contravention of the Act.

The court found that the conduct towards Krstev constituted workplace bullying. It was unreasonable and created a risk to his health and safety, meeting the criteria for protection under the Fair Work Act. The court concluded that an order was necessary to prevent the employer from contravening the Act and protect Krstev from further harm. The court granted an order prohibiting the employer from engaging in the identified bullying behaviour and directed the employer to take reasonable steps to remedy the effects of the bullying.

The final orders included a prohibition on the employer and its officers from engaging in the identified bullying conduct. The court also directed the employer to implement measures to address the effects of the bullying on Krstev and to comply with any further directions from the Court or the Fair Work Commission.

Orders