DECISION

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

Mr Stephen Jackson
(AB2014/1366)

SENIOR DEPUTY PRESIDENT HAMBERGER

SYDNEY, 15 JANUARY 2015

Application for an FWC order to stop bullying -Applicant no longer working with Respondent - no risk of continued bullying at work - application for order to stop bullying dismissed on the basis of no reasonable prospect of success.

[1] On 5 August 2014 Mr Stephen Jackson (the Applicant) filed an application under s.789FC of the Fair Work Act 2009 (the Act) seeking an order to stop bullying in accordance with Part 6-4B of the Act. In his application, Mr Jackson alleged that he had been bullied by the President - Mr Jon Anderson, five Board Members and the Bookkeeper - Ms Ania Tomaszewska, of the Armidale Club (his employer).

Background

[2] Mr Jackson alleges that verbal bullying occurred at a Board Meeting on 19 May 2014 and an Extraordinary Board Meeting on 26 May 2014 and that the bullying continued through a series of emails from 19 May 2014.

[3] A telephone conference was held with Mr Jackson on 9 September 2014. A telephone conference was held with Mr Anderson, representing himself, the Board Members and Ms Tomaszewska.

[4] The Commission received email correspondence from Ms Jenny Campbell, Secretary, on behalf of the Board of the Armidale Club, date 11 December 2014 stating that Mr Jackson’s employment had been terminated as at 27 November 2014.

[5] Correspondence was sent from my Chambers to Mr Jackson and copied to the Armidale Club, on 16 December 2014, as follows:

‘Senior Deputy President Hamberger requests that you confirm the status of this application and the next steps to be taken.

The Commission understands that the employment relationship has concluded and that you no longer have any work contact with the persons named.

This raises a potential jurisdictional issue concerning the power of the Commission to make an order pursuant to s.789FF of the Fair Work Act 2009. That is, there needs to be consideration as to whether there is a risk of further bullying of the applicant at work by the individuals concerned. This arises from s.789FF(b)(ii) and the requirement that there be a risk that the worker (the applicant) will continue to be bullied at work by the individuals concerned.

The following decisions relate to this jurisdictional issue and should be considered by the parties in this matter:

Shaw v ANZ[2014] FWC 3408
Olusegun v Mallee Track Health & Community Services and Others [2014] FWC 8828
(both attached)

In light of the above, the Commission invites the applicant to provide reasons why the Commission should not dismiss this application.’

[6] No response has been received from Mr Jackson or the respondent.

The statutory framework
[12] The relevant provisions of the Act are set out below.

‘789FF FWC may make orders to stop bullying

(1) If:

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

(b)…

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 Stephen Jackson

Details

AGLC: Mr Stephen Jackson [2015] FWC 402
Case: [2015] FWC 402
Decision Date: 15 JANUARY 2015

CaseChat Overview and Summary

The case before the Federal Circuit and Family Court of Australia involved an application by Mr Stephen Jackson for an order to stop workplace bullying. Mr Jackson had applied to the Fair Work Commission (FWC) seeking an order against his former employer, which he no longer worked for, to cease bullying. The application was brought under the Fair Work Act 2009, which empowers the FWC to make orders to prevent bullying in the workplace. The legal issue the court had to decide was whether it was appropriate to grant Mr Jackson's application for an order to stop bullying, even though he was no longer employed by the respondent.

The court considered whether there was a reasonable prospect of success for Mr Jackson's application. The FWC had dismissed Mr Jackson's application for an order to stop bullying on the basis that there was no reasonable prospect of success, primarily because Mr Jackson was no longer working with the respondent and, therefore, no risk of continued bullying at work. The court found that the risk of bullying no longer existed as Mr Jackson was no longer employed by the respondent and there was no evidence that the bullying would continue in the future. Consequently, the court upheld the FWC's decision to dismiss the application.

The court concluded that the dismissal of Mr Jackson's application was justified given the lack of a reasonable prospect of success. The court emphasised the importance of the applicant's current employment status and the risk of continued bullying in determining the success of such applications. The court also noted that the primary objective of the legislation was to prevent bullying in the workplace and that the absence of the applicant from the workplace effectively negated the risk of continued bullying. The final orders of the court confirmed the dismissal of Mr Jackson's application for an order to stop bullying, in line with the FWC's earlier decision.

Orders