DECISION

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

Leanne Mayson
v
Mylan Health Pty Ltd and others
(AB2020/179)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 17 MARCH 2020

Application for interim anti-bullying order to prevent dismissal – power under s 789FF contingent on FWC satisfaction as to bullying etc – ‘serious question’ is not satisfaction – s 589(2) not a discrete source of power – application for interim order dismissed

[1] This decision concerns an application for an urgent interim order sought by Ms Leanne Mayson to prevent her dismissal. The matter arises in connection with a substantive application made by Ms Mayson under s 789FC of the Fair Work Act 2009 (Act) for orders to prevent her from being bullied at work. In that application, Ms Mayson contends that she has been subjected to repeated unreasonable behaviour engaged in by her employer, Mylan Health Pty Ltd (company), and eight named individuals who are employees of the company.

[2] Ms Mayson alleges that she was first subjected to bullying conduct in 2014, when one of the named individuals unreasonably refused to approve reimbursement of a travel-related expense. She says that from around May 2017, the company and six of the named individuals bullied her in a number of different ways, including by excluding her from work events, ridiculing and isolating her, and gossiping about her. Ms Mayson says that in early March 2019, following a further instance of bullying, the company told her that some of her colleagues had complained about her conduct. The company proceeded to place her on a performance improvement plan (PIP). Ms Mayson submits that she was subjected to further bullying conduct connected with the PIP. She says that she was not provided with the details of the complaints against her, and that the PIP, which sought changes in her behaviour, was unreasonable. She submits that her complaints about the PIP were ignored, and that the company did not apply its own performance policies to her case.

[3] On 11 March 2019, Ms Mayson was certified unfit to return to work because she was suffering from a depressive illness. She has not returned to work. Ms Mayson contends that she has been subjected to further bullying during her absence, and in particular that the company has sought to have her return to work during a period of personal leave. Ms Mayson says that, according to her doctor, she could return to work in late March or early April 2020 if the company makes reasonable adjustments to her working arrangements, including by removing the PIP and changing her reporting line.

[4] Ms Mayson says that the bullying conduct to which she refers has had a significant adverse effect on her health and wellbeing, and that it has, among other things, caused her to suffer stress, anxiety and depression.

[5] The respondents to the anti-bullying application deny that Ms Mayson has been subjected to bullying. The company says that…

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.

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Details

Case: [2020] FWC 1404
Decision Date: 17 MARCH 2020

CaseChat Overview and Summary

The case of Mayson v Mylan Health Pty Ltd was heard in the Fair Work Commission. The applicant, Mayson, sought an interim anti-bullying order against the respondent, Mylan Health, to prevent his dismissal. The crux of the dispute was whether the Commission had the authority to grant such an order without first being satisfied that the applicant had been subjected to bullying, as required by section 789FF of the Fair Work Act. The respondent argued that the applicant had not demonstrated a "serious question" to be determined, which would be a necessary precursor to the Commission's satisfaction under section 589(2).

The central legal issue before the Commission was whether the requirement of a "serious question" to be determined constituted a distinct source of power under section 589(2) of the Act, or whether it was merely a threshold requirement that needed to be met before the Commission could exercise its discretion under section 789FF. The applicant contended that the existence of a serious question was sufficient to invoke the Commission's jurisdiction, while the respondent argued that the Commission could not proceed without full satisfaction under section 789FF.

In reaching its decision, the Commission held that the requirement of a "serious question" was not an independent source of power under section 589(2) but rather a threshold condition that had to be met before the Commission could exercise its discretion under section 789FF. The Commission concluded that since the applicant had not satisfied the Commission of the requisite bullying conduct, the application for an interim anti-bullying order was dismissed. The Commission did not find a "serious question" to be determined on the evidence before it, thus there was no basis to grant the interim order sought by the applicant.

In light of the findings, the Fair Work Commission dismissed the application for an interim anti-bullying order. The Commission found that the applicant had not satisfied the necessary threshold of demonstrating a serious question regarding the alleged bullying conduct. As a result, the Commission was not satisfied under section 789FF of the Fair Work Act, and therefore, could not exercise its discretion to grant the interim order.

Orders