[2015] FWC 4419 [Note: An appeal pursuant to s.604 (C2015/5251) was lodged against this decision - refer to Full Bench decision dated 30 October 2015 [[2015] FWCFB 6895] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Mohamed Aly
(AB2015/114)

COMMISSIONER BISSETT

MELBOURNE, 10 AUGUST 2015

Application for an FWC order to stop bullying - application dismissed - reasonable management action.

[1] Mr Mohammed Aly (the Applicant) has made an application for orders to be issued by the Fair Work Commission (the Commission) to stop bullying pursuant to s.789FC(1) of the Fair Work Act 2009 (the Act). Mr Aly seeks orders against his employer, the Commonwealth Securities Limited (CommSec), and his two managers (collectively the Respondents).

[2] The application was subject to conciliation where it did not settle.

[3] The Applicant represented himself in the proceedings. In a separate decision I granted permission for the Respondents to be represented by a lawyer. 1

[4] Mr Aly gave evidence on his own behalf. Evidence was given for the Respondents by Ms Michelle Gentile, Mr Russell Hayman and Ms Maree Larkings.

[5] For the reasons given below I find that Mr Aly has not been bullied at work. His application for orders against the Respondents is dismissed.

De-identification of parties

[6] CommSec has made an application for the de-identification of the parties to the application.

[7] Mr Aly opposes the application. He says that it is better that the matter be heard in public so that others may learn from what he claims to be bullying action of others against him.

[8] I have some sympathy for the application by CommSec. I appreciate that the individuals named in the application may, in particular, feel aggrieved that they are identified in the decision.

[9] I am however mindful of the principles of open justice. I discussed these in the decision in Corfield 2 and concluded that:

[30] In deciding whether or not to grant the application of the Respondents it is necessary that I balance the open justice principle against the effects of identification on the on-going employment relationship that between the Applicant and the Respondent employer and any embarrassment or distress felt by the Respondents in being identified.

…

[32] It is undoubtedly true that the Respondents would prefer that their details not be made public. It is likely that this would be the preference of many parties in matters before the Commission. That it is the preference of the parties or that there may be some unwanted scrutiny because of the identification of the parties is not a basis to conclude that the parties should be de-identified. It seems to me that there is no harm, apart perhaps from some embarrassment to the Respondent employer, which will come from the identification of the parties. As was explained in Smidmore, mere embarrassment, distress or damage by publicity is not a sufficient basis to grant such an application.

[10]

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 Mohamed Aly

Details

AGLC: Mohamed Aly [2015] FWC 4419
Case: [2015] FWC 4419
Decision Date: 10 AUGUST 2015

CaseChat Overview and Summary

Mohamed Aly, the applicant, sought an order from the Fair Work Commission (FWC) to prevent his employer from engaging in bullying behaviour towards him. The employer contested the application, arguing that the actions in question constituted reasonable management actions. The matter was heard and determined by the FWC.

The primary legal issue before the FWC was whether the actions taken by the employer amounted to bullying under the Fair Work Act 2009, or whether they were reasonable management actions taken in the course of managing the business. The FWC was required to carefully examine the evidence and determine whether the actions were unreasonable and created a risk to health and safety.

In assessing the matter, the FWC examined the specific incidents of behaviour, the context in which they occurred, and the impact on the applicant. The FWC found that the employer's actions, while potentially harsh and confronting, were taken in the context of managing the business and were not intended to be, and did not in fact, create a risk to the applicant's health and safety. The FWC determined that the employer's actions were reasonable management actions, and thus not bullying within the meaning of the Act. Consequently, the FWC dismissed the application.

As the FWC found that the employer's actions were reasonable management actions, it did not make any orders. The applicant's application for an FWC order to stop the employer from engaging in bullying was dismissed.

Orders