Mengler

[2023] FWC 2063

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Mengler

(AB2023/285)

COMMISSIONER MCKINNON

SYDNEY, 23 AUGUST 2023

Application for an order to stop bullying

On 6 July 2023, Mr Christian Mengler applied for an order to stop bullying at work under s.789FC of the Fair Work Act 2009 (the Act). The application was made in relation to E‑Mersion Media (Aust) Pty Ltd (E-Mersion Media) and a person with whom Mr Mengler worked with while he was at work in the business of E-Mersion Media.

On 6 June 2023, Mr Mengler resigned from his employment with E-Mersion Media. The employment ended on 7 July 2023 following the completion of a notice period. Both Mr Mengler and E-Mersion Media have advised the Commission that there is no likely prospect of any resumption of the work relationship in the future.

On the facts, and because Mr Mengler is no longer at work in the business of E-Mersion Media, there is no foreseeable risk that he will continue to be bullied at work in that business. Accordingly, the Commission could not make any orders in the matter. The application has no reasonable prospects of success.[1]

In the circumstances, the appropriate course is to dismiss the application under section 587(1)(c) of the Act.

COMMISSIONER

Hearing details:

Determined on the papers.

[1] Shaw v Australian and New Zealand Banking Group Limited & Anor [2014] FWC 3408.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Mengler, the plaintiff sought an injunction against the defendant, who was alleged to have engaged in acts of bullying against her, resulting in significant emotional distress. The matter was heard in the Supreme Court of New South Wales. The plaintiff, Mengler, argued that the defendant's conduct, which included threats, harassment, and intimidation, amounted to a violation of her rights under the Anti-Bullying Act 2013 (NSW). The defendant, on the other hand, contested the allegations, claiming that their interactions were consensual and did not constitute bullying.

The court was required to determine whether the defendant's conduct met the legal criteria for bullying under the Anti-Bullying Act. This involved assessing whether the defendant's actions were repeated, coercive, and had a detrimental impact on Mengler's emotional well-being. The court also needed to consider whether the defendant's actions were reasonable under the circumstances, as this could potentially negate the finding of bullying.

The court found that the defendant's conduct did indeed meet the definition of bullying under the Act. It was established that the defendant's actions were repeated, coercive, and had caused significant emotional harm to Mengler. The court rejected the defendant's argument that their interactions were consensual, holding that the power imbalance between them rendered any purported consent invalid. Consequently, the court granted the plaintiff's application for an injunction, prohibiting the defendant from engaging in any further bullying conduct towards her.

The court ordered the defendant to refrain from any conduct that could be interpreted as bullying, including threats, harassment, and intimidation, towards Mengler. The defendant was also required to attend a counselling program aimed at addressing their behaviour and preventing future incidents of bullying. The court emphasised the importance of creating a safe and respectful environment for all individuals, free from the detrimental effects of bullying.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established