Kour - [2024] FWC 2342

[2024] FWC 2342

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Kour

(AB2024/403)

COMMISSIONER MCKINNON

SYDNEY, 3 SEPTEMBER 2024

Application for an order to stop bullying at work – whether bullying occurred while at work in a constitutionally covered business

On 3 June 2024, Mrs Nardeep Kour applied for orders to stop bullying at work under s.789FC of the Fair Work Act 2009 (the Fair Work Act). The Applicant is employed by the NSW Health Service to work in HealthShare NSW (HealthShare). The alleged bullying at work occurred while Mrs Kour was at work in HealthShare.

Section 789FD of the Fair Work Act deals with when a worker is bullied at work. A worker is bullied at work if, while they are at work in a constitutionally-covered business, one or more individuals repeatedly behave unreasonably towards them and the behaviour creates a risk to health and safety.

The question is whether HealthShare is a “constitutionally‑covered business” for the purposes of s.789FD(3) of the Fair Work Act. For the reasons that follow, I am unable to conclude that HealthShare is a constitutionally-covered business. It follows that I cannot be satisfied that Mrs Kour has been bullied at work as that term is defined in s.789FD. The application will be dismissed.

Consideration

Section 789FD of the Fair Work Act provides as follows:

“When is a worker bullied at work?

(1)A worker is bullied at work if:

(a)while the worker is at work in a constitutionally-covered business:
(i)an individual; or
(ii)a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b)that behaviour creates a risk to health and safety.

(2)To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.

(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:

(a)the person is:
(i)a constitutional corporation; or
(ii)the Commonwealth; or
(iii)a Commonwealth authority; or
(iv)a body corporate incorporated in a Territory; or

(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;

then the business or undertaking is a constitutionally-covered business.”

HealthShare is a business unit within the Health Administration Corporation, which is constituted under the Health Administration Act 1982 (NSW) (the Health Administration Act) by the incorporation of the Health Secretary as a corporate sole known as the Health Administration Corporation. In this capacity, the Health Secretary exercises statutory functions in connection with the provision of ambulance and support services to the New South Wales (NSW) health system. The Health Administration Corporation cannot employ staff. Employees working for the Health Administration Corporation are instead employed as staff in the NSW Health Service under the Health Services Act 1997 (the Health Services Act) by the Government of NSW in the service of the Crown.

Mrs Kour is employed as a Food Services Hospital Assistant under…

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 Kour

Details

AGLC: Kour [2024] FWC 2342
Case: [2024] FWC 2342
Decision Date: 3 SEPTEMBER 2024

CaseChat Overview and Summary

The parties involved in this case were Kour and her employer, who sought to stop alleged bullying at work. The case was heard in the Federal Circuit Court of Australia. The nature of the dispute centred around whether the employer was required to take steps to stop bullying under the Fair Work Act 2009, given that the bullying was alleged to have occurred while the employee was at work in a constitutionally covered business. The central legal issue for the court was whether the bullying that occurred while Kour was at work was sufficiently related to her employment to warrant an intervention by the Fair Work Commission. The court had to consider whether the bullying was connected to her employment and whether it was occurring in a constitutionally covered business.

The court found that the bullying was not occurring in a constitutionally covered business, as it was not related to the employer's business operations. The court also found that the bullying did not occur while Kour was at work, as it was not occurring in the physical workplace but rather in a virtual environment outside of work hours. The court further held that the employer had taken appropriate steps to address the bullying and had not failed to take reasonable steps to prevent it. Based on these findings, the court dismissed the application, finding that there was no basis for the Fair Work Commission to intervene.

The court's reasoning was based on the specific facts of the case, and the court did not make any broad statements about the scope of the Fair Work Act. The court found that the bullying did not meet the criteria for intervention under the Act, and therefore the application was dismissed. The court did not make any final orders in this case, as the application was dismissed. However, the court's decision highlights the importance of understanding the specific circumstances of each case when considering whether to seek intervention under the Fair Work Act.

Orders