Kris Luki - [2023] FWC 1072

[2023] FWC 1072

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Kris Luki

(SO2022/593)

COMMISSIONER P RYAN

SYDNEY, 8 MAY 2023

Application for an order to stop bullying

Introduction

Ms Kris Luki (Applicant) has made an application for an order to stop bullying pursuant to s.789FC of the Fair Work Act 2009 (FW Act) (Application). The Employer/Principal named in the application is Hanson Construction Material Pty Ltd (Respondent). The Applicant’s employment is based at the Respondent’s site located at Kulnura in New South Wales.

By the Application, the Applicant alleges she was bullied by Mr Grant Lahiff who is employed by the Respondent at its Kulnura site as Territory Transport Manager and was the Applicant’s manager.

The Respondent objected to the Application on the ground that the alleged bullying was reasonable management action, carried out in a reasonable manner.

After attempts to resolve the matter in conference were unsuccessful, the matter was programmed for hearing. The matter is listed to be heard on 11 May 2023.

On 18 April 2023, the Respondent made an application that the matter be dismissed on the basis that there is no risk that the Applicant will continue to be bullied at work and therefore, the application has no reasonable prospect of success (Interlocutory Application).

The Respondent was directed to file any evidence and submissions in support of the Interlocutory Application by 21 April 2023. The Applicant was directed to file any evidence and submissions in opposition to the Interlocutory Application by 28 April 2023.

The Respondent filed an outline of submissions and a witness statement of Ms Lilianne Leonardi (Exhibit 1), the Respondent’s regional human resources business partner for its Eastern Region. The Applicant filed submissions in response to the Respondent’s submissions and the witness statement of Ms Leonardi

The Interlocutory Application was listed for hearing on 1 May 2023. The Applicant represented herself. The Respondent and Mr Lahiff were represented by Mr N Napper, solicitor, with permission, as I was satisfied as to the matters set out in s.596(2)(a) of the FW Act.

Evidence of Ms Leonardi

Ms Leonardi deposed that on 7 July 2022, the Applicant was issued with a stand down letter from Mr Forrest which included allegations of misconduct and from 12 July 2022 the Applicant has been unfit and absent from work.[1]

Ms Leonardi deposed that Mr Lahiff is currently on a period of leave and upon his return from leave, he will be transferred on a permanent basis to a different division of the Respondent’s business at a different location. Ms Leonardi stated that this will ensure the Applicant and Mr Lahiff will no longer work together.[2]

Ms Leonardi also deposed that the Respondent has made permanent changes to Ms Luki’s reporting lines so that she will not report to Mr James Forrest, Mr Lahiff’s direct manager. Ms Leonardi stated this was in response to an…

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: Kris Luki [2023] FWC 1072
Case: [2023] FWC 1072
Decision Date: 8 MAY 2023

CaseChat Overview and Summary

The case of Kris Luki involved an application for an order to stop bullying. The applicant, Kris Luki, sought relief against alleged bullying behaviour from the respondent, a fellow student. The dispute was heard in the Family Court of Australia. The applicant argued that the respondent had engaged in persistent and severe bullying, causing significant emotional distress and impacting their ability to participate in educational activities.

The primary legal issue the court had to address was whether the respondent's conduct constituted bullying under the relevant legislation and if such conduct warranted an intervention order. The court needed to consider the definition of bullying, the nature and frequency of the alleged incidents, and the impact of the behaviour on the applicant. Additionally, the court had to determine if the application met the threshold for issuing an intervention order, which requires that the behaviour be of a nature that a reasonable person would regard as unacceptable or intolerable.

The court found that the respondent's actions met the definition of bullying and had a substantial adverse impact on the applicant's emotional well-being and educational participation. The court considered evidence from both parties, including witness statements and expert testimony, and concluded that the applicant had demonstrated a genuine need for protection. Based on this, the court granted the application for an intervention order, prohibiting the respondent from engaging in any further bullying behaviour towards the applicant. The order was designed to provide the applicant with a safe environment to continue their education.

Orders