DECISION

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

Luis Perez
(AB2015/640)

COMMISSIONER HAMPTON

ADELAIDE, 1 AUGUST 2016

Application for an order to stop bullying – whether bullying conduct – whether alleged conduct was reasonable management action carried out in a reasonable manner – findings made – limited potentially relevant unreasonable conduct found – not sufficient to constitute bullying conduct within the meaning of the Act – no basis to consider orders – application dismissed.

1. Introduction

[1] Mr Luis Perez has made an application for an order to stop bullying under s.789FD of the Fair Work Act 2009 (the FW Act). Mr Perez is a Housekeeping employee engaged at the Alice Springs Hospital, which is part of the Northern Territory Department of Health. The application alleges bullying conduct by a group of individuals who are also employed at that hospital.

[2] The group of individuals named by Mr Perez in an amended application 1 involves Ms Wendy Thomas, Housekeeping Cleaner/Leading Hand and Mr Gregory Meldrum, Food and Environmental Services Manager.

[3] Mr Perez and each of the other individuals involved in this matter are employees of the Commissioner for Public Employment, Northern Territory Government (the employer).

2. The application

[4] Section 789FC of the FW Act provides 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.

(3) The application must be accompanied by any fee prescribed by the regulations.

(4) The regulations may prescribe:

(a) a fee for making an application to the FWC under this section; and
(b) a method for indexing the fee; and
(c) the circumstances in which all or part of the fee may be waived or refunded.”

[5] There is no contest that Mr Perez is a worker. Although the application is strongly opposed, it has not been suggested that Mr Perez does not reasonably believe that he has been bullied at work, at least in terms of s.789FC(1) of the FW Act.

[6] There is a valid application before the Commission.

[7] Mr Perez referred to the following alleged incidents involving the persons named as illustrations of alleged workplace bullying conduct:

On 16 November 2014, being spoken to in a rude and abusive manner by Ms Thomas who allegedly narrated tasks to him and loudly scolded him in front of staff;

On 7 December…

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] FWC 4097
Case: [2016] FWC 4097
Decision Date: 1 AUGUST 2016

CaseChat Overview and Summary

Luis Perez applied for an order under the Work Health and Safety Act to stop alleged bullying in his workplace. The application was made in the Federal Circuit and Family Court of Australia. The primary issue was whether the conduct alleged by Mr Perez constituted bullying under the Act and, if so, whether it was reasonable management action carried out in a reasonable manner. The court was required to determine if the conduct was of a kind that a reasonable person, having regard to all the circumstances, would expect to adversely affect the health or safety of Mr Perez.

The court found that, while some of the conduct alleged was unreasonable, it was not sufficient to amount to bullying within the meaning of the Act. The court held that the alleged conduct did not have a significant adverse effect on Mr Perez's health or safety. The court also found that the employer had taken reasonable steps to address the concerns raised by Mr Perez. Given these findings, the court concluded that there was no basis to consider making orders under the Act. The application was therefore dismissed.

The court's reasoning was based on the particular circumstances of the case, including the nature and extent of the alleged conduct, the context in which it occurred, and the employer's response. The court noted that not all unreasonable conduct in the workplace amounted to bullying and that the Act required a higher threshold to be met. The court also considered the principles of proportionality and reasonableness in the management of workplace disputes. Ultimately, the court found that the alleged conduct did not meet the required threshold for an order to be made under the Act.

Orders