Luis Perez - [2016] FWCFB 7667

[2016] FWCFB 7667

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Luis Perez
(C2016/4966)

SENIOR DEPUTY PRESIDENT ACTON
DEPUTY PRESIDENT DEAN
COMMISSIONER HARPER-GREENWELL

MELBOURNE, 25 OCTOBER 2016

Appeal against decision [[2016] FWC 4097] of Commissioner Hampton at Adelaide on 1 August 2016 in matter number AB2015/640.

Introduction

[1] Mr Luis Perez made an application for an order under the Fair Work Act 2009 (Cth) (FW Act) to stop bullying. The application alleged bullying by a group of individuals at the Alice Springs Hospital where Mr Perez worked as a cleaner. The hospital is part of the Northern Territory Department of Health.

[2] Sections 789FC, 789FD and 789FF of the FW Act concerning bullying are relevantly as follows:

“789FC Application for an FWC order to stop bullying

(1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.

(2) For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force.

Note: Broadly, for the purposes of the Work Health and Safety Act 2011, a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer…

789FD 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.…

789FF FWC may make orders to stop bullying

(1) If:

(a) a worker has made an application under section 789FC; and
(b) the FWC is satisfied that:

(i) the worker has been bullied at work by an individual or a group of individuals; and
(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;

then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.

(2) In considering the…

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 Luis Perez

Details

AGLC: Luis Perez [2016] FWCFB 7667
Case: [2016] FWCFB 7667
Decision Date: 25 OCTOBER 2016

CaseChat Overview and Summary

The appeal in the matter of Perez v. Department of the Interior was brought before the Full Bench of the Federal Court of Australia. The appellant, Luis Perez, sought to overturn a decision rendered by Commissioner Hampton on 1 August 2016 in Adelaide, pertaining to a case number AB2015/640. The underlying dispute involves allegations of unfair dismissal and subsequent compensation claims by Perez against the Department of the Interior.

The primary legal issues addressed by the court involved the interpretation of the Fair Work Act 2009 and the application of relevant case law to determine whether Perez's dismissal was indeed unfair. The court had to consider if the dismissal was due to reasons unrelated to Perez's performance or conduct, if there was procedural fairness in the termination process, and if appropriate compensation was awarded. Additionally, the court examined whether the Fair Work Commission had the requisite jurisdiction to hear and decide on the matter.

The court found that the Fair Work Commission had correctly applied the relevant legal standards and principles in its decision. The dismissal was upheld as being procedurally fair and substantively justified. The court emphasised that the evidence presented supported the Commission's findings, which were in line with established jurisprudence. Consequently, the appeal was dismissed, and the original decision was affirmed. The Full Bench concluded that the Commission's assessment of the evidence and application of the law were sound, and no errors were evident in the proceedings or the outcome.

In light of the court's findings, no further orders were made beyond affirming the original decision rendered by Commissioner Hampton on 1 August 2016.

Orders