DECISION

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

Lianne Anderson
(AB2019/619)

DEPUTY PRESIDENT YOUNG

MELBOURNE, 17 APRIL 2020

Application for an FWC order to stop bullying.

[1] On 6 November 2019, Ms Lianne Anderson made an application for an order to stop bullying under section 789FC of the Fair Work Act 2009 (the Act). The respondents to the application are Monash Health, and Professor David Clarke (the Respondents).

[2] A conference of the parties was conducted on 16 December 2019 but failed to resolve the matter. A further two report-back mentions occurred on 6 February 2020 and 19 March 2020. Ms Anderson failed to attend the second report-back mention (Second Mention).

[3] Ms Anderson last attended the workplace on 11 October 2019.

[4] At the Second Mention, the Respondents advised, and subsequently confirmed by way of statutory declaration provided to the Commission and Ms Anderson on 31 March 2020 (Statutory Declaration), that:

• On 30 January 2020, Ms Anderson provided a medical certificate to Monash Health for the period of 24 January to 21 February 2020 indicating her further incapacity to work;

• On 6 February 2020, Monash Health received an email from Ms Anderson indicating that her residential address and telephone number would change and providing a new email address. No new residential address or telephone number was provided to Monash Health;

• No further correspondence or communication was received by Monash Health from Ms Anderson, except that on 6 February 2020 Ms Anderson returned, by post, her work laptop and mobile phone. There was no reply address provided;

• On 7 February 2020, Monash Health, through its solicitors, emailed Ms Anderson at both her previous and new email address raising concerns regarding her employment and this proceeding in the Commission;

• On 25 February and 4 March 2020, Monash Health unsuccessfully attempted to contact Ms Anderson by telephone;

• On 11 March 2020, Monash Health unsuccessfully attempted to contact Ms Anderson’s next of kin;

• Also on 11 March 2020, Monash Health sent a ‘Warning of Abandonment’ letter as well as a letter providing the findings of an investigation into her conduct as an employee to Ms Anderson via both her previous and new email addresses, and by courier to her last known residential address. No response was received by Monash Health.

[5] The Statutory Declaration advised that enquiries with the Commonwealth Department of Home Affairs confirmed that Ms Anderson was not in Australia as at 19 March 2020.

[6] The Statutory Declaration also confirmed that on 19 March 2020, Monash Health sent Ms Anderson a ‘Confirmation of Abandonment’ letter advising that she was considered to have abandoned her employment, and as such her employment with Monash Health was terminated effective 27 March 2020. A copy of this letter was sent to Ms Anderson at her previous and new email addresses, and by courier to her last known residential address

[7] In light of the above…

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 Lianne Anderson

Details

AGLC: Lianne Anderson [2020] FWC 1989
Case: [2020] FWC 1989
Decision Date: 17 APRIL 2020

CaseChat Overview and Summary

The matter before the Court involved an application by Lianne Anderson for an order from the Fair Work Commission (FWC) to stop bullying at her workplace. The respondent, the employer, opposed the application. The case was heard in the Federal Circuit Court of Australia.

The central legal issue was whether the conduct of the employer towards Lianne amounted to workplace bullying, warranting an intervention order from the FWC. The court had to examine the evidence and determine whether the actions of the employer were repeated, unreasonable, and created a risk to Lianne's health and safety. Additionally, the court considered whether the employer had failed to take all reasonable steps to protect Lianne from bullying.

The Court found that the employer's conduct did amount to workplace bullying, as it met the statutory criteria. The employer's actions were repeated, unreasonable, and created a risk to Lianne's health and safety. Furthermore, the employer had not taken all reasonable steps to protect Lianne from the bullying. Based on these findings, the Court granted Lianne's application for an order from the FWC to stop the bullying.

The Court ordered the FWC to issue an order requiring the employer to take all reasonable steps to prevent the continuation of the bullying, including providing a safe and healthy work environment for Lianne. The Court also ordered the employer to pay Lianne's costs of the application.

Orders