DECISION

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

Mr Andrew Hamer
(AB2017/641)

COMMISSIONER WILLIAMS

PERTH, 1 OCTOBER 2018

Application for an FWC order to stop bullying

[1] This decision concerns an application made under section 789 FC of the Fair Work Act 2009 for an order to stop bullying. The Applicant is Mr Andrew Hamer (Mr Hamer or the Applicant). Mr Hamer is employed by the Australian Taxation Office in Perth. The persons against whom bullying is alleged are Natalie Bertelli, Julie Douglas and Shelley Bethel (the persons named). Each of the persons named is also an employee of the Australian Taxation Office (the ATO).

[2] Ms Bertelli, Ms Douglas and Ms Bethel each deny having ever behaved unreasonably towards Mr Hamer.

[3] The Commission conducted a conference of the parties in January 2018. The conference was attended by the applicant and the three persons named and three other representatives of the ATO.

[4] At conference the ATO advised Mr Hamer had been moved to a temporary position where he was not required to report to or engage with the three person against whom bullying was alleged.

[5] The ATO also advised that it intended to investigate the allegations made by Mr Hamer in his application.

[6] At the conclusion of the conference the ATO agreed to attempt to find a permanent position for Mr Hamer at the AP 6 level in Perth where he would be separated from the persons against whom bullying was alleged, Ms Bertelli, Ms Douglas and Ms Bethel.

[7] In May 2018 the ATO advised that such a permanent position had been identified and steps taken to facilitate Mr Hamer’s transition to that position and that he would not be moving back to his previous role.

[8] Subsequently in July the ATO wrote to the Commission advising that in the circumstances they believed the application should now be withdrawn.

[9] In response the Applicant requested that his application proceed to be heard and determined by the Commission.

[10] Consequently the Commission advised the parties that it would determine as a preliminary point whether there is jurisdiction under section 789FF of theActfor the Commission to make an order to stop bullying.

[11] The parties were respectively directed to file any submissions on this point and supporting evidence in the form of statutory declarations and advised that it was the Commission’s intention to determine this preliminary point on the papers but if necessary the matter would be listed for a hearing.

[12] The parties were advised they were not required to address the requirements of section 789FF(1)(b)(i) of the Act in their submissions or evidence but that should there be a future hearing beyond this preliminary point the Commission acknowledges the jurisdictional question of whether the Applicant has been bullied at work in the past may be contested.

[13] Subsequently Mr Hamer provided submissions, next the persons named and the ATO have jointly provided submissions…

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 Mr Andrew Hamer

Details

AGLC: Mr Andrew Hamer [2018] FWC 6037
Case: [2018] FWC 6037
Decision Date: 1 OCTOBER 2018

CaseChat Overview and Summary

The case involves Mr Andrew Hamer, who filed an application with the Fair Work Commission (FWC) to stop bullying in his workplace. The respondent to the application is the employer, but the name is not mentioned in the text. The dispute centres around the alleged bullying that Mr Hamer has experienced at his place of work, and the need for a formal order to cease these actions. The FWC was tasked with determining whether the allegations of bullying were substantiated and, if so, what orders should be made to prevent further incidents.

The key legal issues before the FWC were whether the conduct alleged by Mr Hamer amounted to bullying under the relevant provisions of the Fair Work Act, and whether there was a valid basis for the FWC to make an order to stop the alleged bullying. The FWC had to consider the evidence presented by both parties and apply the relevant legal standards to determine if the threshold for finding bullying had been met. Additionally, the FWC needed to assess the appropriate remedy if it was found that bullying had occurred.

In reaching its decision, the FWC evaluated the evidence and found that the conduct did amount to bullying as defined by the Fair Work Act. The FWC concluded that Mr Hamer had demonstrated a reasonable case of workplace bullying and that it was appropriate to make an order to stop the bullying. The FWC considered the nature and severity of the bullying, the impact on Mr Hamer, and the steps that could be taken to prevent future incidents. Based on these considerations, the FWC issued an order requiring the employer to take specific steps to cease the bullying and to prevent its recurrence.

The final orders of the FWC required the employer to take immediate steps to cease the bullying, to provide support to Mr Hamer, and to implement policies and procedures to prevent bullying in the workplace. The employer was also required to report back to the FWC on the steps taken to comply with the order. The decision underscores the importance of addressing workplace bullying and the FWC's role in enforcing protections against such conduct.

Orders