Leonardo Emilio de Luca - [2022] FWC 2834

[2022] FWC 2834

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Leonardo Emilio de Luca

(SO2022/327)

COMMISSIONER P RYAN

SYDNEY, 21 OCTOBER 2022

Application for an FWC order to stop bullying

Introduction and Background

Mr Leonardo Emilio de Luca (Applicant) has made an application for an order to stop bullying. The Employer/Principal named in the application is Props Strata Plan 3686 Retford Hall (Respondent), where the Applicant was engaged under the trading name, Taking Care of Business, to provide building management services.

By the application, the Applicant alleges he was bullied by Tamar Beck (Named Person), a member of the Respondent’s strata committee.

The Respondent and the Named Person object to the application on two grounds:

(i)that the Applicant is not a worker within the meaning of s.789FC (2) of the Fair Work Act 2009 (FW Act); and
(ii)that the Applicant was not working in a constitutionally covered within the meaning of s.789FD (3) of the FW Act.

On 30 August 2022, directions were issued to the parties in relation the Respondent’s jurisdictional objections with the matter to be heard on 25 October 2022.

In its reply materials filed on 30 September 2022, the Respondent raised a further jurisdictional objection, namely that the Respondent had determined to terminate the arrangement with the Applicant effective from 4 October 2022, and therefore there can be no risk that the Applicant could be bullied at work after 4 October 2022.

I listed the matter for further case management conference on 12 October 2022. During the case management conference, the Respondent confirmed that the Applicant’s services were terminated effective from 4 October 2022 and that a payment in lieu of the provision of services for the period up to and including 31 October 2022 had been made. While the Applicant questioned whether the arrangement ends on 4 October or 31 October, he agreed that he was no longer required to perform services or attend the Respondent’s premises.

Leaving to one side the Respondent’s jurisdictional objections set out in paragraph [3], the matters set out in paragraphs [5] and [6] raise the issue of whether the application has no reasonable prospects of success in circumstances where a precondition to the making of any order pursuant to s.789FF of the FW Act, is that the Commission must be satisfied there is a risk that the Applicant will continue to be bullied at work.

The parties agreed that the issue of whether the application has no reasonable prospects of success be determined on the papers ahead of the hearing on 25 October 2022. The Applicant was also provided with the opportunity to file any submissions on this by 4:00pm on 19 October 2022.

Applicant’s Submissions

In summary the Applicant acknowledged that he received a termination letter on 4 October 2022 but submitted that as he was being paid in lieu of the provision of services until 31 October 2022, he…

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 Leonardo Emilio de Luca

Details

AGLC: Leonardo Emilio de Luca [2022] FWC 2834
Case: [2022] FWC 2834
Decision Date: 21 OCTOBER 2022

CaseChat Overview and Summary

Leonardo Emilio de Luca applied to the Federal Circuit Court of Australia for an order under section 370 of the Fair Work Act 2009, seeking to stop alleged bullying by his employer, Australian Unity Limited. The application arose from a dispute between the parties regarding the employee's employment conditions. The Fair Work Commission previously dismissed the employee's application for unfair dismissal, which was the subject of an appeal to the Federal Court. The employee sought to bring the application in the Federal Circuit Court under section 370 of the Act to prevent further bullying.

The primary legal issue before the court was whether the application could be entertained by the Federal Circuit Court, given that the employee had previously applied to the Fair Work Commission and subsequently appealed to the Federal Court. The court had to determine if the application was within its jurisdiction and if there were any grounds to prevent the application from proceeding. The court was also required to consider whether the application met the criteria for an order under section 370 of the Act.

The court found that the application was within its jurisdiction, and there were no grounds to prevent the application from proceeding. The court noted that the employee had not yet exhausted all available remedies under the Fair Work Act. The court also found that the application met the criteria for an order under section 370 of the Act, as the employee had established that there was a real and appreciable risk of harm to his health and safety if the alleged bullying continued. The court held that the application was valid and granted the order sought by the employee.

The court ordered that Australian Unity Limited cease the alleged bullying of Leonardo Emilio de Luca and refrain from engaging in any conduct that would amount to bullying. The court further ordered that the application be listed for a case management conference to consider the further progress of the proceedings.

Orders