DECISION

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

Keiko Adachi
(AB2015/668)

COMMISSIONER GREGORY

MELBOURNE 16 MARCH 2016

Application for an FWC order to stop bullying – further application under s.587 for matter to be dismissed on grounds of no reasonable prospect of success.

Introduction

[1] Ms Keiko Adachi has been employed by Qantas Airways Ltd (“Qantas”) for almost 28 years. During this time she has worked primarily as a crew member on long haul flights and is now employed in the position of Customer Service Supervisor. However, at this point Ms Adachi has been off work since October 2014 due to ill health.

[2] On 24 September 2015 Ms Adachi made application under s.789FC of the Fair Work Act 2009 (“the Act”) for an order to stop bullying. Her application named three individuals against whom bullying is alleged. The application was dealt with in conference in Sydney on 3 December, but was unable to be resolved.

[3] The application was then set down the hearing on 23/24 February and directions were issued for filing and service of submissions and evidence. However, Qantas responded by indicating it now sought to pursue a jurisdictional objection as previously foreshadowed in its Form F73 – Employer Response document. It submits the application should be dismissed because the Commission cannot make orders to stop bullying because there is no present risk Ms Adachi will be bullied at work.

[4] After further consultation with the parties the Commission issued amended directions indicating the matter was now listed to deal only with the jurisdictional objection raised by Qantas. Amended directions were also issued for filing and service of evidence and submissions. This decision accordingly deals with that jurisdictional objection.

[5] It is also noted at this point that no acknowledgement or findings about whether Ms Adachi has been bullied at work have been made by or about any of the named individuals. Ms Adachi’s substantive application is instead still to be determined.

[6] Ms Helen McKenzie from Ashurst appeared on behalf of Qantas. Ms Tina Santone from Santone Lawyers appeared on behalf of Ms Adachi. Both were given permission to appear under s.596(2)(a) of the Act as the matter involves a degree of complexity and their involvement would enable it to be dealt with more effectively.

The Issue to Be Decided

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

“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)…

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 Keiko Adachi

Details

AGLC: Keiko Adachi [2016] FWC 1498
Case: [2016] FWC 1498
Decision Date: 16 MARCH 2016

CaseChat Overview and Summary

Keiko Adachi, an employee, sought an order from the Fair Work Commission (FWC) to address bullying in the workplace. The application was subsequently met with a counter-application by the employer to dismiss the matter on the grounds that it had no reasonable prospect of success. The matter was brought before the Federal Court of Australia to determine the validity of the employer's application. The primary legal issue before the court was whether the employer's application to dismiss the matter could proceed under section 587 of the Fair Work Act. Specifically, the court had to examine whether the employer's application was made within the prescribed time limits and whether the FWC had the authority to dismiss the application based on the lack of reasonable prospects of success.

The court found that the employer's application was timely and within the legislative framework. The court also determined that the FWC had the requisite authority to dismiss an application if it found that there was no reasonable prospect of success. The court emphasised the importance of maintaining procedural fairness and ensuring that the FWC's power to dismiss applications was exercised judiciously. Ultimately, the court upheld the employer's application, concluding that the FWC had not erred in its decision to dismiss the matter on the grounds of no reasonable prospect of success. The court's decision reinforced the importance of adhering to procedural requirements and the judicious use of the FWC's powers in employment-related disputes.

Orders