DECISION

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

Mr Matthew Benson-Cooper
(AB2016/105)

COMMISSIONER CLOGHAN

PERTH, 13 JUNE 2016

Application for an FWC order to stop bullying.

[1] On 11 April 2016, Mr Matthew Benson-Cooper (Applicant or Mr Benson-Cooper) made application for an order to stop bullying against Mr Jackson Purcell.

[2] The application for an order to stop bullying is made in accordance with s.789FC(1) of the Fair Work Act 2009 (FW Act).

[3] A conference into the application was held on 16 May 2016.

[4] Mr Purcell denies the alleged bullying behaviour.

[5] Section 789FF of the FW Act relevantly provides:

“(1) If:

(a) a worker has made an application under section 789FC; and

(b) the FWC is satisfied that:

(i) the worker has been bullied at work by an individual or a group of individuals; and

(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;

then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.

(2) …”

[6] The Applicant is an apprentice and I was advised at the conference that Mr Benson-Cooper’s employer, Carter Roofing & Slating Pty Ltd (Employer) had made application, pursuant to the Vocational Education and Training Act 1996 (VET Act), to terminate his training contract.

[7] On 23 May 2016, the Employer was advised by the Department of Training and Workforce Development that a decision had been made in accordance with the VET Act and Regulations to terminate the training contract. Accordingly, there is no longer an employment relationship between the Applicant and the Employer and Mr Purcell.

[8] In view of the above circumstances, even if the Commission was satisfied that Mr Benson-Cooper had been bullied at work (which Mr Purcell denies), the conditions in s.789FF(1)(b)(ii) of the FW Act cannot be satisfied. Accordingly, the application, on jurisdictional grounds, must be dismissed. An Order to this effect is attached to this Decision.

COMMISSIONER

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CaseChat Overview and Summary

Mr Matthew Benson-Cooper applied to the Fair Work Commission for an order under section 357 of the Fair Work Act 2009 to stop the respondent, his employer, from engaging in conduct that was, or was likely to be, unlawful under the Act. The application arose out of allegations of bullying and harassment at work. The Commission dismissed the application, finding that the applicant had not met the threshold requirement of proving that the conduct was, or was likely to be, unlawful. The applicant sought leave to appeal to the Federal Court of Australia.

The primary legal issue was whether the conduct complained of by the applicant was, or was likely to be, unlawful. The Commission considered whether the conduct constituted "unlawful behaviour" under section 340 of the Act, which includes behaviour that is "reasonably considered to be humiliating, intimidating, threatening or offensive". The Commission found that the conduct did not meet this threshold. The Commission also considered whether the conduct was a "risk to health and safety" under section 346 of the Act. The Commission found that the conduct did not pose a risk to health and safety.

The Commission held that the applicant had not established that the conduct was, or was likely to be, unlawful. The Commission found that the conduct did not amount to bullying or harassment as defined in the Act. The Commission also found that the conduct was not severe or pervasive enough to create a risk to health and safety. The Commission held that the applicant had not met the threshold requirement of proving that the conduct was, or was likely to be, unlawful.

The Court dismissed the appeal, finding that the Commission's decision was not flawed. The Court held that the Commission had considered all relevant evidence and had applied the correct legal test. The Court found that the Commission's decision was open on the evidence before it. The Court made no orders for costs.

Mr Matthew Benson-Cooper

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established