DECISION

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

Mircea Stancu
(AB2014/170)

Social, community, home care and disability services
COMMISSIONER LEE	MELBOURNE, 26 MARCH 2015

Application for an FWC order to stop bullying - various jurisdictional objections - no jurisdiction - application dismissed.

Background and case outline

[1] Mr Mirceau Stancu (the Applicant) has made an application under s.789FC of the Fair Work Act 2009 (the FW Act) for an order to stop bullying conduct he alleges has taken place, and may in the future take place, within his workplace.

[2] The Applicant is a volunteer with Australian Volunteers International (AVI). The bullying is alleged to have taken place while the Applicant was engaged as a volunteer to perform work as a Sanitation Engineer in The Ministry of Public Works and Utilities (The Ministry) in South Tarawa, Kiribati.

[3] The bullying complaint is directed at Ms. Kiji Faktaufon. Ms. Faktaufon is the AVI Country Manager for Fiji and Kiribati. The bullying complaint relates to a number of incidents and discussions the Applicant had with Ms. Faktaufon. Specifically the Applicant alleges that Ms. Faktaufon bullied him at their meeting on 10 September 2014; in the formal warning issued to him on 9 October 2014 (dated 1 October 2014); in an email dated 13 October 2014 and in a phone conversation held on 15 October 2014.

[4] AVI has raised a number of jurisdictional and other objections to the application. In summary these are:

The Applicant is not undertaking “work” for AVI but rather performs work for The Ministry. While AVI submits that AVI itself is a constitutionally covered business 1, The Ministry is not a constitutionally covered business and is therefore outside of the anti-bullying jurisdiction.

The actions AVI took did not create a risk to the health and safety of the Applicant.

The actions of AVI can be characterised as reasonable management action.

[5] I note that a further jurisdictional consideration arises from the fact that the Applicant’s work location is in Kiribati. Irrespective of whether it is determined that the Applicant is working for AVI or The Ministry, there are limits to the geographical application of the FW Act which forms part of the consideration as to whether there is jurisdiction to determine the matter.

The proceedings

[6] I conducted a preliminary conference by telephone. Efforts were made to resolve the issues between the parties. The conference did not resolve the issues and subsequently, directions were issued for the filing of materials. The directions provided that material would be filed on all matters related to the application including the jurisdictional objections. Liberty was provided for either party to request a hearing. No hearing was requested by either party.

The evidence

[7] Witness statements were provided from Mr. Peter Britton (Executive Manager of International Services for AVI), Ms. Faktaufon (Country Manager Fiji and Kiribati) Mr Stancu, the Applicant and Sister Marella Rebgetz. I make clear for the benefit of…

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 Mircea Stancu

Details

AGLC: Mircea Stancu [2015] FWC 1999
Case: [2015] FWC 1999
Decision Date: 26 MARCH 2015

CaseChat Overview and Summary

The case before the court involved an application by Mircea Stancu seeking an order from the Fair Work Commission (FWC) to halt bullying in the workplace. The application was opposed on jurisdictional grounds by the respondents, who argued that the FWC lacked the authority to hear the matter. The court was tasked with determining whether the FWC had jurisdiction to grant the relief sought by the applicant.

The primary legal issue the court had to decide was whether the FWC had the necessary jurisdiction to address the applicant's claims of workplace bullying. The court examined the statutory framework governing the FWC's jurisdiction, particularly under the Fair Work Act 2009 (Cth). The court needed to ascertain whether the FWC could intervene in a situation where the applicant sought an order to stop bullying, considering the specific jurisdictional boundaries and the nature of the relief requested.

The court found that the FWC did not have jurisdiction to make the order sought by the applicant. The court concluded that the applicant's claims did not fall within the FWC's remit as defined by the Fair Work Act. The court noted that while the FWC could address unfair dismissal and other workplace disputes, it did not have the authority to issue orders specifically aimed at stopping workplace bullying. Consequently, the application was dismissed on the grounds that the FWC lacked the jurisdiction to hear the matter.

The court did not make any further orders in the case, as the dismissal of the application on jurisdictional grounds rendered any additional relief unnecessary.

Orders