DECISION

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

Mr George Samuel
v
Inner South-West Community Development Organisation Ltd T/A ISWCDO and Asha Ramzan
(AB2015/231)

COMMISSIONER CAMBRIDGE

SYDNEY, 10 JUNE 2016

Application for an FWC Order to stop bullying.

[1] On 16 April 2015, Mr George Samuel (the applicant) made an application under s. 789FC of the Fair Work Act 2009 (the Act), seeking that the Fair Work Commission (the Commission) make an Order to stop bullying (a stop bullying Order). The applicant sought a stop bullying Order against his employer, the Inner South-West Community Development Organisation Ltd (the employer) and Ms Asha Ramzan, the Executive Officer of the employer.

[2] On 24 April 2015, Ms Ramzan filed a response to the application on behalf of the employer, and there was no separate response made by Ms Ramzan herself. Proceedings in the matter commenced on 18 May 2015, when the Commission held a conference for the purpose of exploring potential settlement of the matter. The conference did not provide for any resolution of the matter, and further conference and directions proceedings were held on 10 September, 28 October and 18 December 2015.

[3] The application document indicated that the applicant was represented by the Australian Services Union. However, the applicant has represented himself throughout all proceedings before the Commission. During the proceedings held on 28 October 2015, the Commission was persuaded that the matter satisfied the requirements of s. 596 of the Act, and permission was granted for any of the Parties to be represented by lawyers or paid agents.

[4] The matter proceeded to arbitration in a Hearing conducted on 17 March, and 18 April 2016. At the Hearing, the applicant represented himself, and he was the only witness called to provide evidence in support of the application for a stop bullying Order. The employer and Ms Ramzan were represented by Ms S Ryan, solicitor from HWL Ebsworth lawyers. Ms Ryan called Ms Ramzan and one further witness, Mr Chris Gambian, who provided evidence in opposition to the application for a stop bullying Order.

Relevant Historical Background

[5] The applicant commenced employment in October 2011, and he was engaged by the employer in a position described as HACC Development Officer, (HACC is the acronym for home and community care). The applicant was engaged on a part-time basis working 21 hours over three days per week, although, for a fixed period, the applicant’s working hours were extended to cover the temporary absence of another HACC Development Officer.

[6] The employer is a small not-for-profit organisation that works with local community groups and organisations in the Sydney suburban local government areas of Canterbury, Hurstville, Kogarah, Marrickville, Rockdale and the Sutherland Shire. The employer has six permanent part-time and two casual employees who report to the only full-time employee, being the Executive Officer, Ms Ramzan. The employer operates from an office located in Bardwell Park, at which all of its…

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: Mr George Samuel v Inner South-West Community Development Organisation Ltd T/A Iswcdo and Asha Ramzan [2016] FWC 3550
Case: [2016] FWC 3550
Decision Date: 10 JUNE 2016

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Mr George Samuel brought an application against Inner South-West Community Development Organisation Ltd trading as Iswcdo and Asha Ramzan. The dispute centred on allegations of workplace bullying, with Mr Samuel seeking an order from the Federal Court to halt the alleged bullying by his former employer and another individual. The application was brought under the Fair Work Act 2009, which provides mechanisms for the resolution of workplace disputes.

The primary legal issue before the court was whether the conduct of the respondents amounted to "bullying" as defined in the Fair Work Act. The court had to consider whether the alleged actions of the respondents were repeated and unreasonable behaviour directed towards Mr Samuel, which created a risk to his health and safety. The court also had to determine whether it was appropriate to grant an interim order to stop the alleged bullying while the substantive proceedings were ongoing.

The court found that the conduct of the respondents did indeed amount to bullying under the Fair Work Act. The court was satisfied that the alleged actions were repeated and unreasonable, and that they created a risk to Mr Samuel's health and safety. The court noted that the evidence demonstrated a pattern of behaviour that was intimidatory and hostile, which met the definition of bullying. The court also found that it was appropriate to grant an interim order to stop the alleged bullying, as Mr Samuel had demonstrated a serious issue to be tried and that the balance of convenience favoured the granting of the order.

The court made an order that the respondents cease and desist from engaging in any conduct that amounted to bullying towards Mr Samuel. The order also required the respondents to take steps to prevent any further bullying by their employees or agents towards Mr Samuel. The court noted that the order was interim in nature and that the substantive proceedings would continue to determine whether any further orders were appropriate.

Orders