DECISION

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

KM
(AB2015/739)

COMMISSIONER HAMPTON

ADELAIDE,18 APRIL 2016

Application for an order to stop bullying – preliminary jurisdictional issue – whether future risk of workplace bullying present – whether applicant remains employed – whether prospect that applicant will return to workplace as a worker – whether application should be dismissed on the basis that there are no reasonable prospects of success – applicant elected in 2012 to treat employer’s conduct as a dismissal – various applications taken on that basis but no determination made – whether election, if wrong, meant that employment contract remained – conduct of parties not consistent with on-going employment – whether workers compensation return to work arrangements could lead to return to the workplace – satisfied that applicant no longer employed by respondent employer – return to work arrangements linked to ongoing employment – no reasonable prospect that applicant returning to workplace as a worker – no reasonable prospects that orders can be made – discretion to be exercised – outstanding matters may be taken up in other forums – application dismissed.

1. What this decision is about

[1] This decision deals with a preliminary jurisdictional issue that has arisen in the context of an application that has been brought by Ms KM. I have de-identified the parties for particular reasons associated with this matter. 1 The application has been made under s.789FC of the Fair Work Act 2009 (the FW Act) and seeks orders to stop alleged bullying conduct.

[2] The application cites alleged unreasonable conduct within a workplace conducted by an employer in New South Wales and names the Managing Director of that organisation as being responsible for the bullying conduct.

[3] The employer conducts a business in the online healthcare sector. The applicant had been a consultant for some months prior to commencing employment with the business in early 2012 in the position of Director of Marketing.

[4] It is common ground that the applicant has not been present in the workplace since mid-July 2012 when, during a period of absence from the workplace, she was apparently denied access to her work emails. It is also reasonably apparent that as a result of that incident and other factors, the applicant considered, at that time, that she had been dismissed. This is apparent from the fact that since July 2012 there have been various forms of litigation between some or all of the parties including an unfair dismissal application under s.394 of the FW Act, and two complaints to the Australian Human Rights Commission (AHRC) launched by the applicant. Each matter involved allegations by the applicant that she had been dismissed from her employment. I also note that this litigation has included defamation and contempt proceedings taken by the employer before the Supreme Court of New South Wales.

[5] The applicant also made a workers compensation claim arising from the events in 2012 and I…

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: KM [2016] FWC 2088
Case: [2016] FWC 2088
Decision Date: 18 APRIL 2016

CaseChat Overview and Summary

The matter involved an application for an order to stop workplace bullying, which was heard in a relevant Australian court. The applicant, who had been an employee of the respondent, alleged that the respondent’s conduct constituted bullying. The applicant’s election in 2012 to treat the employer's conduct as a dismissal was central to the application. This election had been the basis for various applications that had been taken but not determined. The court needed to decide if the applicant was still employed by the respondent and if there was a prospect that the applicant would return to the workplace as an employee.

The court considered whether the applicant's election, if incorrect, meant that the employment contract remained in effect. It also examined whether the conduct of the parties was consistent with ongoing employment and whether the workers' compensation return-to-work arrangements could lead to a return to the workplace. The court found that the applicant was no longer employed by the respondent and that the return-to-work arrangements were linked to the ongoing employment. Consequently, there was no reasonable prospect that the applicant would return to the workplace as a worker. The court concluded that there were no reasonable prospects of success for the application, leading to its dismissal.

Given the findings, the court exercised its discretion to dismiss the application. The court noted that outstanding matters could be taken up in other forums. The dismissal of the application meant that the court did not make any orders to stop the alleged bullying. Instead, the applicant was advised to pursue any remaining matters in appropriate alternative legal forums.

Orders