DECISION

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

Mr Michael Cox
(AB2017/190)

DEPUTY PRESIDENT ASBURY

BRISBANE, 23 APRIL 2018

Application for an order to stop bullying – Jurisdictional objection on the grounds that the applicant is no longer employed - Whether applicant resigned – Whether resignation was validly rescinded – Whether employment ended other than by resignation – Finding that employment relationship has ended – Finding that contract of employment has ended – Finding that there is no reasonable prospect that applicant will be at work in the future – Application has no reasonable prospects of success – Application dismissed .

OVERVIEW

[1] Mr Michael Cox applies under s.789FC of the Fair Work Act 2009 (the Act) for an order to stop bullying against Tweed Health for Everyone Pty Ltd T/A Tweed Health for Everyone Superclinic and four persons named in the application. Mr Cox asserts that as provided in s.789FC(1) of the Act he is a worker who reasonably believes he has been bullied at work. Tweed Health for Everyone Pty Ltd (THE) objects to the application asserting that Mr Cox is no longer employed by the Company. This decision deals with that objection.

[2] THE operates a Superclinic located at Tweed Heads providing primary healthcare for the Tweed Community with the major focus on general clinical practice. There are three directors of THE – Dr Diane Blanckensee, Dr Jennifer Soden and Dr Austen Sterne. The three directors have equal shares in the Company and hold one unit each. The spouses of Dr Sterne and Dr Blanckensee are involved in the business as beneficiaries of a trust and are not directors of the Company. Mr Cox commenced employment as the Chief Executive Officer of THE on Monday 10 October 2016.

[3] The Superclinic is staffed by a total of 76 employees and contractors. The employees are administrative staff. The contractors are General Practitioners and other allied health professionals who rent rooms and other space from THE under a landlord and tenant arrangement whereby the tenant pays THE an agreed percentage of gross income. The relationship between the directors of THE is troubled and at the time this application was heard, there was litigation in the Supreme Court involving the three Directors. Essentially Dr Blanckensee and Dr Soden are in dispute with Dr Sterne. Dr Sterne supports Mr Cox in his application for an order to stop bullying and has aligned himself with Mr Cox against his co-directors in relation to that application. Dr Blanckensee and Dr Soden jointly constitute majority shareholders and unit holders in THE. As will become evident the relationship between the three directors is a complicating factor in determining the issue in dispute in this case.

[4] It is asserted by THE that Mr Cox resigned his employment on 7 March 2017 and that the resignation was accepted by Dr Blanckensee and Dr Soden. Mr Cox contends that if he did resign his employment…

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 Michael Cox

Details

AGLC: Mr Michael Cox [2018] FWC 1109
Case: [2018] FWC 1109
Decision Date: 23 APRIL 2018

CaseChat Overview and Summary

Mr Michael Cox applied to the Fair Work Commission for an order to stop bullying, alleging he was bullied by his former employer. The Commission raised a jurisdictional objection, contending that the applicant was no longer employed, and thus had no standing to bring the application. The objection centred on whether Mr Cox had resigned from his employment, whether that resignation was validly rescinded, and whether the employment relationship had ended in some other way. The Commission was required to determine these issues to ascertain if it had jurisdiction to hear the application.

The Commission found that Mr Cox had indeed resigned from his employment, and that he had subsequently attempted to rescind that resignation. However, it was determined that the employer had accepted the resignation and treated it as effective. The Commission concluded that the employment relationship had ended, and that the contract of employment had been terminated. It was also found that there was no reasonable prospect that Mr Cox would be at work in the future. These findings led to the conclusion that the application had no reasonable prospects of success.

Consequently, the Commission dismissed the application for an order to stop bullying. The dismissal was based on the determination that Mr Cox was no longer employed, and therefore lacked the standing to bring the application. The jurisdictional objection was upheld, and the application was dismissed on the grounds that it had no reasonable prospects of success. The Fair Work Commission's decision in this matter highlights the importance of establishing the status of an employment relationship when determining the jurisdiction to hear an application.

Orders