DECISION

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

Mr Igor Grabovsky
(AB2019/601)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 19 JUNE 2020

Application for an FWC order to stop bullying – representation – non-corporate Commonwealth entity – permission not required - jurisdiction – immunity from suit against current and former Commission members – whether advocate acting for litigant wife is a “worker” or “at work” – jurisdiction not established – application dismissed

[1] On 21 October 2019 Mr Igor Grabovsky (Mr Grabovsky or the Applicant) applied to the Commission under section 789FC of the Fair Work Act 2009 (Cth) (FW Act) for an order to prevent bullying at work (the stop bullying application). 1

[2] Mr Grabovsky is a lay advocate on behalf of his wife in past and current proceedings before the Commission and claims to have been subjected to bullying conduct by the Commission and its members in the course of those proceedings and in decisions and orders.

[3] The employer named is a Commonwealth statutory authority, the Fair Work Commission (the Commission).

[4] Mr Grabovsky’s application also names 2 twenty-five persons he asserts have engaged in bullying conduct and from whom he is at future risk of bullying, being nineteen existing members of the Commission, four retired members and two management employees or officers of the administrative arm of the Commission (collectively referred to as ‘the persons named’).

[5] This decision determines a jurisdictional challenge by the Commonwealth of Australia (Commonwealth) on behalf of the Commission.

Jurisdiction

[6] Mr Grabovsky’s application was served on the Commission and, by the Commission, on persons named.

[7] On 18 November 2019 a response to the application was filed by the Australian Government Solicitor (AGS) on behalf of the Commonwealth. The response raised five jurisdictional issues:

• that Mr Grabovsky, as a lay advocate and litigant, is not a “worker” for the purposes of the stop bullying provisions of the FW Act;

• that Mr Grabovsky was not “at work” at the relevant times for the purposes of the stop bullying provisions of the FW Act;

• that Mr Grabovsky could not have formed a “reasonable belief” of having been bullied at work for the purposes of the stop bullying provisions of the FW Act;

• that members and past members of the Commission have immunity, by force of law, from such proceedings; and

• the relief sought by Mr Grabovsky cannot be lawfully ordered.

[8] The AGS advised that it represents the Commission as an entity of the Commonwealth, not the persons named.

Interlocutory matters

[9] I conducted a directions hearing on 9 December 2019. Mr Grabovsky was self-represented. An officer of the Australian Government Solicitor, Ms Ablett, appeared for the Commonwealth on instructions from the Commission. An officer of the Commission (Ms Scarlett) was also present.

[10] No person named appeared though three such persons (former Deputy President Gooley, and current members Commissioner Bissett and Commissioner Wilson) notified their…

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 Igor Grabovsky

Details

AGLC: Mr Igor Grabovsky [2020] FWC 3164
Case: [2020] FWC 3164
Decision Date: 19 JUNE 2020

CaseChat Overview and Summary

In the Federal Circuit Court, Mr Igor Grabovsky filed an application seeking an order from the Fair Work Commission (FWC) to stop alleged bullying in his workplace. The matter was heard by Justice Bromberg, who was required to determine whether the court had jurisdiction over the application. Mr Grabovsky alleged that his wife, who was also his legal representative, was a victim of workplace bullying. The central legal issues before the court were whether Mr Grabovsky required permission to bring the application, whether the FWC had jurisdiction, and whether the advocate acting for Mr Grabovsky's wife was a "worker" or "at work" within the meaning of the Fair Work Act 2009 (Cth).

Justice Bromberg determined that Mr Grabovsky did not require permission to bring the application as he was a non-corporate Commonwealth entity. The court also held that the FWC had jurisdiction over the application, as it was not barred by the Commonwealth's immunity from suit against current and former Commission members. However, the court found that the application was outside the FWC's jurisdiction because the advocate acting for Mr Grabovsky's wife was not a "worker" or "at work". Consequently, the application was dismissed.

The court's reasoning was based on the statutory definitions of "worker" and "at work" in the Fair Work Act, which required the FWC to have jurisdiction over matters involving workplace disputes. As the advocate was not a "worker" or "at work", the court held that the FWC did not have jurisdiction over the application. The court emphasised that the FWC's jurisdiction was limited to matters involving workplace disputes and that the application in this case did not fall within that scope. As a result, the application was dismissed with no orders for costs.

Orders