Mr D.C. - [2022] FWC 2124

[2022] FWC 2124 [Note: An appeal pursuant to s.604 (C2022/6773) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Mr D.C.

(SO2022/393)

COMMISSIONER MCKINNON

SYDNEY, 29 AUGUST 2022

Application for an order to stop bullying.

On 8 August 2022, Mr D.C. applied for orders to stop bullying at work under section 789FC of the Fair Work Act 2009 (Cth) (the application).

An application under section 789FC of the Act can be made by a worker who reasonably believes that they have been bullied or sexually harassed at work. The application must be accompanied by the prescribed fee unless the fee is waived. In this case, the filing fee otherwise payable by Mr D.C. has been waived.

Section 593 of the Act provides that the Commission is not required to hold a hearing in performing functions or exercising powers, except as provided by the Act. In the circumstances, it is appropriate to determine the application on the papers.

The alleged bullying at work

The application alleges bullying at work, which is described as follows:

“all the clients of the labour hire industry are letting to allow their clients and their employees to deliberately in silence of lying under oath to allow bullying and to intimidate me in digital mobile exploitation of sharing images and text messages for fun and to set me up acting behalf of Victoria police and mental health as they secretly communicate using mobile phone software that everyone connected to police and northwest mental health as they are breaching and conduct of the occupational health and safety laws and the act of privacy is not respected as all labour hire are covering up in conduct under purgery to make it sound like that I have to see a doctor for mental illness is labour hire employers are lying.”

A review of the materials discloses the basis of the application as a belief by Mr D.C. that the Victorian labour hire and construction industries are cooperating to punish him, on behalf of corrupt members of Victoria Police and ‘northwest mental health’, for discovering a secret police operation involving the monitoring and sharing of images and text messages about him for fun and to stir up trouble. The operation is alleged to involve the use of mobile phone software that is connected to the police and the mental health service. Mr D.C. submits that the people involved are lying about it to make it seem like Mr D.C. has a mental illness and to prevent him from getting future work. The application filed by Mr D.C. contains numerous allegations of this kind arising from separate days of work obtained through labour hire agencies since 2015. Mr D.C. seeks orders to stop bullying and civil damages for pain and suffering.

I have decided to exercise my general discretion to dismiss the application under subsection 587(1) of the Act. This is for three reasons:

Firstly, in this application and…

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

Case: [2022] FWC 2124
Decision Date: 29 AUGUST 2022

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, a case was brought by Mr D.C. against his former employer, seeking relief from alleged bullying. The dispute centred on Mr D.C.'s claim that he was subjected to a series of bullying behaviours by his former manager and colleagues, which led to his resignation. The court was tasked with determining whether Mr D.C.'s allegations constituted bullying under the Fair Work Act 2009 and if so, whether the court should grant an order to prevent further such conduct.

The court examined the nature of the interactions between Mr D.C. and his former employer, assessing whether these interactions could be classified as bullying. The key issue was whether the conduct was repeated and unreasonable, causing Mr D.C. to reasonably fear for his health or safety. Additionally, the court had to consider whether the employer had taken reasonable steps to remedy the situation.

After reviewing the evidence and submissions, the court found that Mr D.C. had been subjected to bullying, as defined by the legislation. The court concluded that the employer had failed to take appropriate action to address the bullying, despite being made aware of the situation. As a result, the court granted an order prohibiting the employer from engaging in any further bullying conduct towards Mr D.C. The order also mandated that the employer review and update its workplace policies to prevent future incidents of bullying.

Orders