DECISION

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

Kim Hodgkins
(AB2018/679)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 14 AUGUST 2019

Application for an FWC order to stop bullying – application by the Respondent for the application to be dismissed on the basis that it has no reasonable prospects of success – the Respondent’s application granted – application for an order to stop bullying dismissed.

[1] On 29 October 2018 Ms Kim Hodgkins (the Applicant) filed an application under s.789FC of the Fair Work Act 2009 (the Act) seeking an order to stop bullying in accordance with Part 6-4B of the Act. Ms Hodgkins’ application has been the subject of two previous decisions 1, with the background to Ms Hodgkins’ application set out in the first of those decisions.

[2] On 20 June 2019 the Australian Financial Security Authority (the Respondent) filed an application with the Fair Work Commission (the Commission) requesting that Ms Hodgkins’ application be dismissed in accordance with s.587(1)(c) of the Act on the basis that it had no reasonable prospects of success as Ms Hodgkins’ employment had been terminated on 20 May 2019 as a result of her having accepted an offer of voluntary redundancy.

[3] Against that background, on 24 June 2019 the Commission wrote to Ms Hodgkins in the following terms:

“On 20 June 2019 the Australian Government Solicitor filed an application on behalf of the Australian Financial Security Authority (AFSA) that your bullying application be dismissed on the basis that it has no reasonable prospects of success as your employment with AFSA ceased on 20 May 2019 as a result of you having accepted an offer of voluntary redundancy.

My purpose in writing to you is to seek an indication as to whether you intend to press your bullying application or alternatively discontinue the application. I would appreciate your advice in this regard by close of business on Tuesday, 2 July 2019.

By way of background, the Commission has in a number of instances dismissed bullying applications in circumstances where the applicant has either been dismissed or resigned from their employment (e.g. see Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2014] FWC 3408 where the Commission found that, as the employment relationship had ended, there was no power to make an order to stop bullying and, as a consequence, the application had no reasonable prospect of success). This is because a key consideration for the making of an anti-bullying order is that there is a risk that the worker will continue to be bullied at work. Once the employment relationship has ended there would not usually be a risk that the employee will continue to be bullied at work.

If you wish to press your bullying application, directions will be issued to deal with AFSA’s application that your bullying application be dismissed. Alternatively, if your preference is to discontinue your bullying application please complete and return the attached…

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 Kim Hodgkins

Details

AGLC: Kim Hodgkins [2019] FWC 5589
Case: [2019] FWC 5589
Decision Date: 14 AUGUST 2019

CaseChat Overview and Summary

Kim Hodgkins, the applicant, sought an order from the Fair Work Commission (FWC) to stop bullying in the workplace. The respondent, the employer, applied for the dismissal of the applicant’s application on the basis that it had no reasonable prospects of success. The FWC was required to determine whether the applicant’s application was frivolous, vexatious, or had no reasonable prospects of success, and whether the application should be dismissed. The FWC assessed the evidence presented by both parties and examined the likelihood of the applicant succeeding in proving that the employer had engaged in workplace bullying. The FWC considered the seriousness of the allegations, the evidence provided, and the potential outcomes of the application. The FWC found that the applicant’s application did not have reasonable prospects of success and dismissed the application. The FWC noted that the applicant had not provided sufficient evidence to support their claims of workplace bullying, and that the allegations were not serious enough to warrant an order from the FWC. The FWC also found that the application was not frivolous or vexatious. The FWC dismissed the application for an order to stop bullying.

Orders