DECISION

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

MJ
(AB2019/193)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 20 MAY 2020

Application for an order to stop bullying – Respondent contends that alleged conduct was reasonable management action carried out in a reasonable manner – jurisdictional objection upheld – Application for an order to stop bullying dismissed.

[1] On 10 April 2019 MJ (the Applicant) filed an application under s.789FC of the Fair WorkAct 2009 (the Act) seeking an order to stop bullying in accordance with Part 6-4B of the Act. In his application, MJ alleged that he had been bullied by his Team Leader, AM. MJ was employed by the Australian Criminal Intelligence Commission (ACIC – the Respondent) in its information technology area. The Respondent in its Form F73 – Response from an employer/principal to an application for an order to stop bullying contended that the alleged bullying behaviour was reasonable management action carried out in a reasonable manner.

[2] As a result of an application made by the Respondent the Fair Work Commission (the Commission) issued an Order on 20 December 2019 1 pursuant to ss.590(3)(c) and 594(1) of the Act. Among other things, the Order precludes the disclosure or publication of the names of employees of the Respondent other than Senior Executive Service (SES) employees.

[3] MJ’s application was the subject of several conferences convened by the Commission which failed to resolve the matter, with Directions issued on 14 August 2019. MJ’s application was heard on 31 October, 1 November and 3 December 2019 and 7 and 8 January 2020.

[4] At the hearing MJ appeared on his own behalf while Ms Irene Sekler, a Senior Executive Lawyer with the Australian Government Solicitor (AGS), and Mr Henry Chang, a Senior Lawyer with AGS, appeared for the Respondent.

[5] MJ gave evidence on his own behalf.

[6] For the Respondent, evidence was given by:

• AM;

• RE, a Team Leader with the Respondent;

• LP, a Workplace Relations Senior Advisor with the Respondent – LP was not required to give oral evidence;

• AC, a Manager in the Respondent’s Portfolio Management Office (PMO);

• AS, a member of AJ’s team; and

• JK, AM’s line manager for the period January 2019 until 21 October 2019.

[7] Ms Rochelle Thorne, the Respondent’s Executive Director, Technology, gave evidence as a result an Order Requiring a Person to Attend the Fair Work Commission issued by the Commission on 25 October 2019. The Order was made as a result of an application by MJ.

[8] For the reasons set out below, I am satisfied that the various actions/conduct of which MJ complains were reasonable management action carried out in a reasonable manner. As such, I do not consider those actions/conduct to be bullying conduct. The Respondent’s jurisdictional objection is therefore upheld and MJ’s application will as a result be dismissed.

Background

[9] A number of issues arose in late 2018/early 2019 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.

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Details

AGLC: MJ [2020] FWC 2572
Case: [2020] FWC 2572
Decision Date: 20 MAY 2020

CaseChat Overview and Summary

The case, which came before the court, involved an application by an individual seeking an order to prevent alleged bullying. The respondent argued that the actions in question were reasonable management practices conducted appropriately. The court was tasked with determining whether the actions constituted bullying and whether the respondent's management actions were reasonable. The court needed to assess the nature of the conduct and whether it amounted to bullying, as well as evaluate the reasonableness of the respondent's actions in managing the situation.

The court first considered whether the conduct amounted to bullying. It examined the definition of bullying under relevant legislation and assessed whether the actions were repeated and unreasonable. The court then evaluated whether the respondent's actions were reasonable management practices carried out in a reasonable manner. It considered the context, the respondent's intentions, and whether the actions were proportionate and appropriate given the circumstances.

After careful consideration, the court upheld a jurisdictional objection, finding that the conduct did not meet the legal threshold for bullying. The court determined that the respondent's actions, while potentially harsh, were reasonable management practices carried out in a reasonable manner. Consequently, the application for an order to stop the alleged bullying was dismissed. The court found that the respondent had not acted unreasonably or in a manner that amounted to bullying.

The court's final orders dismissed the application for an order to stop the alleged bullying, finding that the conduct did not meet the legal criteria for such an order. The court also determined that the respondent's actions were reasonable management practices conducted appropriately. The decision underscores the importance of adhering to legal definitions and standards when assessing allegations of bullying and management practices.

Orders