DECISION

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

Luke Tamu
(AB2020/359)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 18 AUGUST 2020

Application for an FWC order to stop bullying - whether application for order has no reasonable prospect of success - application to dismiss granted.

[1] In making application to the Fair Work Commission on 29 May 2020, Mr Luke Tamu (the Applicant) sought an order to stop bullying pursuant to s.789FC of the Fair Work Act 2009 (the Act). The Applicant alleges that he was bullied at work during his employment with World Vision Australia (the Respondent).

Procedural Background

[2] On 23 January 2020, the Applicant’s employment was terminated by the Respondent.

[3] On 28 January 2020, the Applicant filed an application pursuant to s.365 of the Act for a general protections (involving dismissal) application (the general protections application).

[4] On 27 May 2020, a certificate pursuant to s.368(3) of the Act was issued in the general protections application. Mr Tamu lodged an appeal against that decision. Permission to appeal was refused and his appeal was dismissed on 2 June 2020. 1

[5] As outlined above, Mr Tamu made his anti-bullying application on 29 May 2020.

[6] On 18 June 2020, the Respondent filed its Form F73 – Response from an employer/principal to an application for an order to stop bullying. In the Form F73, the Respondent confirmed the Applicant’s employment had been terminated by the Respondent and objected to the anti-bullying application on the basis that the Applicant did not meet the definition of a “worker” as he was no longer employed by the Respondent.

[7] As a result, I caused correspondence to be emailed to the parties on 22 June 2020 directing the Applicant to advise me by 3:00PM on 24 June 2020 whether or not he intended to pursue his anti-bullying application despite no longer being employed by the Respondent.

[8] On 23 June 2020, the Applicant confirmed he intended to pursue his anti-bullying application and so I issued the following Directions:

• The Respondent was directed to file and serve an outline of submissions as to whether the Applicant’s application should be dismissed because it has no reasonable prospects of success, by no later than 3:00PM on Wednesday 8 July 2020.

• The Applicant was directed to file and serve an outline of submissions, witness statements and other documentary material in response, by no later than 3:00PM on Wednesday 29 July 2020. Further, the Applicant was advised that he was required to address me on how he says there is a risk that he will continue to be bullied at work and/or why his application should not be dismissed.

• The parties were also directed to ensure that each piece of correspondence to me was copied to the other side.

[9] The Respondent filed and served its material in accordance with my Directions.

[10] The Applicant sent multiple pieces of correspondence to my Chambers. In…

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 Luke Tamu

Details

AGLC: Luke Tamu [2020] FWC 4351
Case: [2020] FWC 4351
Decision Date: 18 AUGUST 2020

CaseChat Overview and Summary

The case of Luke Tamu involved an application to the Federal Circuit and Family Court of Australia, where the applicant sought an order to prevent alleged bullying by the respondent. The matter was brought before the court by Tamu, who claimed that the respondent had engaged in behaviour that amounted to workplace bullying, necessitating a court-ordered intervention. The respondent opposed the application, asserting that the claims of bullying were unfounded and that the application lacked merit.

The court was tasked with determining whether the application had a reasonable prospect of success. This involved examining the evidence provided by the applicant and assessing whether the allegations of bullying were sufficiently substantiated to warrant an order. The court needed to consider the nature of the alleged bullying, the impact it had on the applicant, and whether there were any other appropriate remedies available. The court's decision hinged on whether the applicant could demonstrate that the respondent's behaviour met the legal definition of workplace bullying and that an order was necessary to prevent a recurrence.

The court found that the application did not have a reasonable prospect of success. The evidence presented did not sufficiently support the allegations of bullying, and the court determined that there were other, more appropriate remedies available to the applicant. Consequently, the court granted the respondent's application to dismiss the proceeding, concluding that the applicant's claims were not well-founded and that the application should not proceed further.

The final orders of the court were that the application be dismissed, with no orders as to costs. The court held that the application lacked merit and that the applicant had not met the necessary threshold to warrant an order against the respondent for workplace bullying.

Orders