DECISION

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

Michelle D’Souza
(AB2020/456)

COMMISSIONER WILLIAMS

PERTH, 18 MARCH 2021

Application for an FWC order to stop bullying.

[1] This decision concerns an application under section 789FC of the Fair Work Act 2009 (Cth) (the Act) for an order to stop bullying made by Ms Michelle D’Souza (Ms D’Souza or the Applicant). The application was filed on 9 July 2020.

[2] The Commission convened conferences in September and November 2020. However, the matter could not be resolved to the Applicant’s satisfaction. Consequently, the matter proceeded to a hearing on 2 December 2020.

Background

[3] Ms D’Souza works at the Woolworths Group Ltd (Woolworths or the Employer) supermarket in Alexander Heights, Perth (the supermarket).

[4] Ms D’Souza works at the supermarket as a night filler. Ms D’Souza has other employment as a relief schoolteacher.

[5] Ms D’Souza alleges she was bullied at work by Mr Ryan Burrows (Mr Burrows) and by Mr Matthew Sandon (Mr Sandon).

[6] At the hearing, Ms D’Souza was self-represented and gave evidence on her own behalf.

[7] Mr Burrows and Mr Sandon gave evidence. Evidence was also given by Ms Alicia Norgrove (Ms Norgrove), an employee relations specialist of Woolworths, and Mr Philip Miller (Mr Miller), who was the store manager of the supermarket between early 2019 and into 2020.

The Legislation

[8] Section 789FD of the Act defines when a worker has been bullied at work. This is set out below:

“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.”

[9] Consequently, in determining this application, the Commission’s role is to first decide whether an individual or a group of individuals repeatedly behaved unreasonably towards Ms D’Souza while she was at work, and whether that behaviour created a risk to health and safety.

[10] It is important to keep this in mind when considering the relevance of the evidence given at the hearing.

Factual findings and findings of unreasonable behaviour towards the Applicant

[11] Ms D’Souza has worked at the supermarket as a night filler for…

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 Michelle D’Souza

Details

AGLC: Michelle D’Souza [2021] FWC 1364
Case: [2021] FWC 1364
Decision Date: 18 MARCH 2021

CaseChat Overview and Summary

Michelle D'Souza brought an application before the Fair Work Commission (FWC) seeking an order to stop her employer from bullying her. The applicant alleged that her employer had engaged in a series of bullying behaviours, including verbal abuse, unreasonable demands, and creating a hostile work environment. The employer denied the allegations and argued that the applicant was not entitled to the relief sought.

The central legal issue before the FWC was whether the applicant had established that her employer's conduct amounted to bullying under the Fair Work Act 2009 (Cth). To do so, the applicant needed to demonstrate that the employer's actions were unreasonable, created a risk to health and safety, and occurred in the context of work from the employer. The FWC also needed to consider whether the employer had taken reasonable steps to address the alleged bullying.

The FWC found that the applicant had demonstrated that her employer's conduct amounted to bullying. The Commission was satisfied that the employer's actions were unreasonable, created a risk to the applicant's health and safety, and occurred in the context of work from the employer. The FWC further found that the employer had not taken reasonable steps to address the bullying. As a result, the FWC made an order requiring the employer to cease the bullying behaviour and to take steps to ensure that it did not occur in the future. The employer was also required to provide a written apology to the applicant.

Orders