Legal Research
Cases
Kelly Walker (No. 2)

Kelly Walker (No. 2)

Case [2019] FWC 4862 18 July 2019

Bullying

Admissibility of Evidence

Prejudice

Employment & Labour Law

No judgment structure available for this case.

Type to search within this case.

[2019] FWC 4862

FAIR WORK COMMISSION

DECISION

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

Kelly Walker (No. 2)
(AB2018/160)

DEPUTY PRESIDENT SAMS

SYDNEY, 18 JULY 2019

Application for an FWC order to stop bullying – interlocutory decision – whether to admit secretly obtained recording of a meeting with Management into evidence - discretion of Commission – allegations of breaches of various Commonwealth and State laws – witness evidence preferred – evidence sought to be admitted after close of evidentiary case – prejudice to respondents – no reason why credibility of three witnesses will not establish the truth – desirability of admitting secret recording outweighed by undesirability of admitting it – application to admit evidence dismissed.

[1] This decision will determine the second, and related interlocutory application in the lead-up to the resumption of substantive proceedings in a Stop Bullying application filed by Ms Kelly Walker, pursuant to s 789FC of the Fair Work Act 2009 (the ‘FW Act’), in respect to her employment with the Hunter Pain Clinic (or the ‘Clinic’) in Newcastle, New South Wales, one of three named respondents in the proceedings. The proceedings will resume for the continuation of the respondent’s evidence on 22 and 23 July 2019 at the Newcastle Branch of the Fair Work Commission.

[2] The first decision, Application by Kelly Walker [2019] FWC 4557, dealt with a number of orders for production as a result of the applicant’s request on 22 May 2019, to tender a secretly obtained recording of a meeting she attended with Dr Marc Russo (also a named respondent) and Ms Bronwyn Harris, on 27 March 2018. When this request was made by the applicant’s support person, Mr David James, in the proceedings, the tender of the recording was opposed by Ms Corrina Dowling, Solicitor, Barry Nilsson Lawyers for the respondents, on a number of grounds, including that the recording had been illegally obtained under the Surveillance Devices Act 2007 (NSW) (the ‘SD Act’). The Commission thereupon issued directions for the filing and service of submissions as to whether it should admit the secret recording into the evidence. Those directions have now been complied with, and I propose to issue a decision based on the parties’ submissions, which I will summarise shortly.

Relevant statutory provisions

[3] Both parties referred to and relied on various provisions of the FW Act, the SD Act, the Evidence Act 1995 (NSW) (the ‘Evidence Act’), the Corporations Act 2001 (Cth) (the ‘Corporations Act’) and the Workplace Surveillance Act 2005 (NSW) (the ‘WS Act’). I set out the relevant sections below:

[4] Section 7 of the SD Act provides as follows:

‘7 Prohibition on installation, use and maintenance of listening devices

(1) A person must not knowingly install, use or cause to be used or maintain a listening device:

(a) to overhear, record, monitor or listen to a private conversation to which the person…

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 Kelly Walker (No. 2)

Details

AGLC: Kelly Walker (No. 2) [2019] FWC 4862
Case: [2019] FWC 4862
Decision Date: 18 JULY 2019

CaseChat Overview and Summary

The matter of Kelly Walker (No. 2) involved an application by Kelly Walker to the Fair Work Commission (FWC) for an order to cease bullying. The case was an interlocutory decision focusing on the admissibility of a secretly recorded meeting between Walker and her management. The respondents were her employers, who contested the admissibility of the recording, arguing that its introduction would prejudice their case.

The central legal issues before the Commission were whether to exercise its discretion to admit the surreptitiously obtained recording into evidence and the potential ramifications of doing so. The Commission had to consider the balance between the public interest in addressing workplace bullying and the potential prejudice to the respondents. Additionally, the court had to weigh the credibility of the existing witness evidence against the potential insights offered by the secret recording.

The Commission found that the evidence from three witnesses was sufficient to establish the truth of the allegations without the need for the secret recording. The Commission was particularly concerned about the timing of the application to admit the recording, which came after the close of the evidentiary case. This timing, combined with the potential prejudice to the respondents, was deemed significant. The Commission concluded that the desirability of admitting the secret recording was outweighed by the undesirability of doing so, given these factors. Consequently, the application to admit the secretly obtained recording into evidence was dismissed.

No final orders were made in this interlocutory decision. The case continues to progress towards its final determination, focusing on the broader allegations of workplace bullying and the appropriate remedies to address them.

Orders