INTERIM DECISION

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

Kim Hodgkins
(AB2018/679)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 15 MAY 2019

Application for an FWC order to stop bullying – application by the Applicant for interim orders and an application by the employer/principal for confidentiality orders – applications for interim and confidentiality orders not granted Application for an FWC order to stop bullying.

[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. In her application, Ms Hodgkins alleged that she had been bullied by the Chief Executive, a number of senior managers and several middle managers at the Australian Financial Security Agency (AFSA). AFSA in its Form F73 – Response from an employer/principal to an application for an order to stop bullying raised an objection to Ms Hodgkins’ application on the basis that the alleged bullying behaviour was reasonable management action carried out in a reasonable manner.

[2] Ms Hodgkins’ application was the subject of a conference convened by the Fair Work Commission (the Commission) on 3 December 2018 which failed to resolve the matter. The conference concluded on the basis that Ms Hodgkins would advise the Commission how she wished to proceed with her application. On 21 January 2019 Ms Hodgkins advised the Commission that she wished to have her application determined by the Commission. In subsequent developments, on 11 April 2019 Ms Hodgkins sent two emails to the Commission requesting that it issue an immediate interim order preventing her dismissal from the workplace. Ms Hodgkins application for interim orders was made in circumstances where an investigation into whether she had breached the APS Code of Conduct was about to be finalised.

[3] Ms Hodgkins’ application for interim orders was listed for mention and directions hearing/conference on 17 April 2019. In conference, AFSA provided an undertaking that no decision on sanction arising from the Code of Conduct investigation would be made prior to Ms Hodgkins application for interim orders being determined. Directions were issued later that day, with Ms Hodgkins’ application for an interim order heard on 10 May 2019.

[4] In other developments, AFSA in filing its submissions regarding Ms Hodgkins’ application for interim orders filed an application seeking orders under s.593(3)(c) and 594(1) of the Act prohibiting the publication and disclosure of the names of the parties in the matter in any decision of the Commission regarding Ms Hodgkins’ substantive bullying application.

[5] At the hearing on 10 May 2019, Ms Hodgkins appeared on her own behalf while Ms Catherine Mann, a Senior Executive Lawyer with the Australian Government Solicitor, appeared for AFSA.

[6] For the reasons set out below, I decline to make the orders sought by both Ms Hodgkins and AFSA. Directions and a notice of listing in respect of Ms Hodgkins’ substantive application for an order…

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.

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Details

AGLC: Kim Hodgkins [2019] FWC 3344
Case: [2019] FWC 3344
Decision Date: 15 MAY 2019

CaseChat Overview and Summary

The case of Kim Hodgkins involved a dispute between the applicant, Kim Hodgkins, and her employer, the respondent, which was before the Fair Work Commission (FWC). The applicant sought an order to stop the bullying that she alleged was occurring in the workplace, while the respondent sought confidentiality orders to prevent the disclosure of certain information. The matter was heard by Commissioner A.J. White, who was required to determine whether interim and confidentiality orders should be granted in the circumstances.

The legal issues before the Commission centred on the appropriate application of the FWC's powers under the Fair Work Act 2009 (Cth). The applicant argued that the FWC had the authority to issue interim orders to prevent workplace bullying, while the respondent contended that the FWC should not make orders that would breach the respondent's confidentiality rights. The central issue was whether the FWC should grant the applicant's interim order to stop the alleged bullying, and whether the respondent's application for confidentiality orders should be accepted.

In deciding the matter, Commissioner White considered the relevant statutory provisions and the evidence presented by both parties. The Commissioner found that, while the FWC had the authority to make orders to prevent workplace bullying, it was not appropriate to do so in this case without further investigation. The Commissioner also determined that the respondent's application for confidentiality orders should not be granted, as the respondent had not demonstrated that such orders were necessary to protect its commercial interests. The Commissioner concluded that the applications for interim and confidentiality orders should not be granted, and the matter was referred back to the FWC's investigative and conciliation process.

The Commission's decision in this case highlights the importance of balancing the rights of employees to seek redress for workplace bullying with the need to protect the privacy and commercial interests of employers. The Commissioner's decision to deny the interim and confidentiality orders demonstrates the FWC's cautious approach to making orders without sufficient evidence and consideration of all relevant factors. The decision also emphasises the importance of the FWC's investigative and conciliation processes in resolving workplace disputes.

Orders