DECISION

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

Mr K
(AB2021/506)

COMMISSIONER MCKINNON

MELBOURNE, 17 SEPTEMBER 2021

Application for an FWC order to stop bullying

[1] On 6 September 2021, Mr K applied for orders to stop bullying by the Fair Work Commission under s.789FC of the Fair Work Act 2009 (the bullying application). On 7 September 2021, Mr K made three further applications to the Commission. Respectively, these sought:

1. a waiver of the application fee under section 789FC(4) and regulation 6.07A of the Fair Work Regulations 2009 (the fee waiver application),

2. orders for persons to attend before the Commission under section 590(2)(a) of the Act (the attendance orders application), and

3. orders for the bank account details of his former employer so that he can repay monies “forced into [his] account under false pretence and defamatory allegations, in reliance on ss. 178, 179A, 536D(1) and 536D(2) of the Act (the corrupting benefits application).

[2] 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 each of these applications on the papers.

The fee waiver application

[3] Mr K seeks a waiver of the application fee that is otherwise required to be paid in connection with the bullying application. The waiver application states that Mr K has been “forced into unemployment”, is in “Poverty. Distressed”, and that his financial position is precarious. One element of the financial information relied upon by Mr K is a “debt” for “forced compensation”. Read together with the bullying application and the corrupting benefits application, I take this to be a reference to monies paid to Mr K by his former employer that he wishes to return. I am not satisfied that the portion of asserted debt attributable to forced compensation is properly characterised as a debt owed by Mr K. That being so, the value of the amount is unspecified. I cannot determine the true value of debts owed by Mr K. Putting the debt aside, I am satisfied that Mr K will suffer serious hardship if the fee is required to be paid. I waive the requirement for Mr K to pay the application fee for the bullying application.

The bullying application

[4] The bullying application is made against the Commission. It does not name any individual or group of individuals (other than by the collective reference to “the Commission”) as having engaged in bullying behaviour. I have decided to dismiss the bullying application under ss.587(1) of the Act. This is for two reasons:

1. Mr K is neither a ‘worker’ nor ‘at work’ in the Commission. He is a former employee of a large employer in South Australia. Mr K is unhappy with how the Commission has dealt with numerous applications to the Commission in connection with his former employment. However, Mr…

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 K

Details

AGLC: Mr K [2021] FWC 5943
Case: [2021] FWC 5943
Decision Date: 17 SEPTEMBER 2021

CaseChat Overview and Summary

In the matter of Mr K, the applicant, and the Australian Taxation Office, the respondent, the Federal Circuit Court was tasked with the application for an order to cease workplace bullying. The applicant alleged that he had been subjected to bullying by his employer, which included unreasonable demands, unreasonable personal behaviour, and harassment. The respondent denied these allegations and argued that the applicant's claims were not substantiated. The court was required to determine whether the applicant had made out a case of workplace bullying and, if so, whether the court should make an order for the respondent to cease the bullying and take other remedial action.

The court considered the evidence presented by both parties and the relevant legal framework for workplace bullying under the Fair Work Act 2009. The court found that the applicant had established a case of workplace bullying, as the conduct alleged by the applicant amounted to repeated unreasonable behaviour that created a risk to health and safety. The court found that the respondent had failed to take reasonable steps to address the bullying, and that the bullying had caused the applicant significant emotional distress. The court made an order for the respondent to cease the bullying and to take steps to address the underlying issues that had contributed to the bullying.

The court also made an order for the respondent to pay the applicant's costs of the application. The court emphasised the importance of employers taking proactive steps to prevent and address workplace bullying, and the serious consequences that can flow from failing to do so. The decision serves as a reminder to employers of their obligations under the Fair Work Act and the potential legal and reputational risks associated with workplace bullying.

Orders