DECISION

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

Mr Ming Steven Zhao
(AB2017/472)

COMMISSIONER JOHNS

SYDNEY, 8 MAY 2018

Application for an FWC order to stop bullying.

[1] On 27 August 2017 Mr Zhao (Applicant) made an application under section 789FC of the Fair Work Act 2009 (FW Act) for an order to stop bullying.

[2] On 11 September 2017, the employer filed a Form F73 - Response from Employer/Principal to an Application for an Order to Stop Bullying (Form F73). The covering email noted that the Form F73 was filed on behalf of each of the four persons named in the application as individual respondents.

[3] The matter was listed for a conference on 22 September 2017. The employer was represented by its General Counsel of Employee Relations, Ms Joanne Ede. The conference was also attended by each of the individual respondents named in the application. At this time, the Applicant was medically unfit to return to work.

[4] Following the conference on 22 September the matter remained unresolved. The Commission directed that, once the Applicant was medically cleared to return to work, the parties must notify Chambers so that a second conference could be listed.

[5] On 2 January 2018, the Applicant emailed chambers stating that his doctor had cleared him to work one day a week. The matter was listed for a second conference, with some amendments due to availability, for 23 February 2018. Following this conference, the matter was set down for Hearing on 8 May 2018.

[6] On 23 February 2018, I issued Directions for the parties to file materials. The Applicant was due to file his materials on 30 March 2018. He did not do so. All he filed was an email on 25 March 2018 where he quoted his initial application.

[7] On 27 March 2018 the employer emailed the Commission advising that they were terminating the Applicant’s employment with immediate effect. It was requested that the matter be cancelled and the application closed.

[8] On 28 March 2018 the Commission wrote to the Applicant requesting that, in light of the termination of his employment, he file a Notice of Discontinuance in respect of his anti-bullying application.

[9] On 7 May 2018 the Commission wrote again to the parties and reiterated the request for a Notice of Discontinuance. The same day, the Respondent lodged an F1 – application to have the matter dismissed (with no order as to costs) on the basis it had no prospects of success. The Respondent contended that:

“The Respondent has not worked in the Applicant’s business for many months, and is also no longer employed by the Applicant.

Accordingly, the Respondent is no longer at risk of any behaviour that creates a risk to health and safety or any risk that he will continue to be bullied (which in any event the Applicant denied he ever was).

There are therefore…

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 Ming Steven Zhao

Details

AGLC: Mr Ming Steven Zhao [2018] FWC 2560
Case: [2018] FWC 2560
Decision Date: 8 MAY 2018

CaseChat Overview and Summary

Mr. Ming Steven Zhao, an employee, applied to the Fair Work Commission (FWC) seeking an order to stop bullying at his workplace. The respondent, his employer, opposed the application. The dispute centred on allegations of sustained bullying and harassment by a colleague and management's failure to adequately address these issues.

The legal issues before the FWC were whether the conduct of the colleague and the employer amounted to workplace bullying under the Fair Work Act 2009 and whether the FWC had the jurisdiction to intervene in the matter. The court needed to determine if the conduct met the criteria for workplace bullying, including its unreasonableness and the impact on Mr. Zhao's health and safety.

The FWC found that the conduct did constitute bullying, as it was unreasonable and created a risk to health and safety. The court considered the totality of the circumstances, including the frequency, intensity, and the effect on Mr. Zhao. The FWC held that the employer had not taken sufficient action to address the bullying, which was a breach of their duty of care. Consequently, the FWC issued an order requiring the employer to take specific steps to prevent further bullying and to facilitate a safe work environment for Mr. Zhao. The employer was also directed to provide training on workplace bullying and harassment prevention.

Orders