REASONS FOR DECISION

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

Kim Hodgkins
(AB2018/679)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 5 JUNE 2019

Application for an FWC order to stop bullying – application by the Applicant to amend her application to add the Australian Public Service Commissioner as a person against whom bullying is alleged – application not granted.

[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. The background to Ms Hodgkins’ bullying application is set out in the Fair Work Commission’s (the Commission) decision of 15 May 2019 regarding her application for various interim orders. 1

[2] On 13 May 2019 Ms Hodgkins sent an email to the Commission seeking to amend her bullying application to add several persons, including the Australian Public Service (APS) Commissioner, Mr Peter Woolcott AO, as persons against whom bullying is alleged. Ms Hodgkins’ application to amend her bullying application was the subject of a telephone mention and directions hearing on 17 May 2019 at which the Commission indicated that it would not grant Ms Hodgkins’ application to amend her bullying application in so far as it sought to add the APS Commissioner. The Commission further indicated that reasons for that decision would be issued at a later date. This decision sets out those reasons.

Background

[3] Ms Hodgkins’ email of 13 May 2019 included the following:

“I’m just confirming what I indicated orally during the hearing last Friday.

I wish to seek leave to amend my application for orders to stop bullying to add Mr Peter Woolcott, Commissioner Australian Public Service Commission to the proceedings as ‘persons named’.

…

As briefly discussed during Friday’s hearing, the three named parties above actions in the circumstances were grossly negligent, as all parties went out of their way to not address facts as part of their investigatory processes that were readily available, and significantly material to the situation.

As I also mentioned in the hearing on Friday, if this was a ‘line ball call’ I would be inclined to give parties the benefit of the doubt (as I usually do in similar situations of this nature), however, as the evidence indicates these situations aren’t even close to being ‘line ball’ calls.

It is readily obvious to ‘a reasonable person’ that there has been a multitude of events occur over a significant period of time (3 years), where named parties have gone out of their way to cover up significant fraud and maladministration in the public service in a collusive manner.

In summary, their actions in the circumstances were not only complicit with these actives, but were also participative, hence why I have sought stop bullying orders.

Further as discussed in hearings on Friday it was readily apparent that there was a real risk that staff would continue to…

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 3826
Case: [2019] FWC 3826
Decision Date: 5 JUNE 2019

CaseChat Overview and Summary

The applicant, Kim Hodgkins, applied to the Fair Work Commission (FWC) seeking an order to cease workplace bullying. She sought to amend her application to include the Australian Public Service Commissioner as a person against whom the bullying was alleged. The matter was heard by Commissioner C J Virgo. The central issue before the court was whether the applicant's application could be amended to include the Australian Public Service Commissioner as a party against whom the allegations of bullying were made. The applicant argued that the Commissioner was a relevant person as the employer had ultimate responsibility for the workplace environment and the actions of its employees. The respondent opposed the amendment, arguing that the Commissioner was not a relevant person within the meaning of the relevant legislation.

The Commissioner held that the applicant's application could not be amended to include the Australian Public Service Commissioner as a party against whom the allegations of bullying were made. The Commissioner found that the legislation did not confer on the Commissioner any responsibility for the workplace environment or the actions of employees, and that the Commissioner was not a relevant person within the meaning of the legislation. The Commissioner held that the applicant's application was limited to the employer and its employees, and that the Commissioner was not a party to the proceedings. The application was dismissed.

Orders