Mrs Khin Si Si Kyaing

[2020] FWC 3777

[2020] FWC 3777

FAIR WORK COMMISSION

RECOMMENDATION

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

Mrs Khin Si Si Kyaing
(AB2020/412)

COMMISSIONER WILLIAMS PERTH, 20 JULY 2020

Application for an FWC order to stop bullying

[1] As explained at the conclusion of the conference conducted on Friday, 17 July 2020 this recommendation is issued to provide Mrs Kyaing with a written record of my opinion regarding this matter.

[2] Mrs Kyaing in her application identifies two examples of behaviour she thinks constitutes bullying. The first occurred on 15 August 2019 and the second on 8 April 2020.

[3] On 15 August 2019 Mrs Kyaing was directed to move some chairs and drawers so that she could vacuum an office. During the course of this work she apparently injured her shoulder which was dealt with through workers compensation.

[4] Having considered Mrs Kyaing’s explanation of this during the conference it is not clear how these events support an allegation of either of the persons named in her application behaving unreasonably towards her.

[5] On 8 April 2020 Mrs Kyaing says her hours were reduced by one hour. I note the answer filed in response to the application disputes this is correct. In any event Mrs Kyaing at the conference agreed that she spoke to a number of people about her concern at the time. The answer filed in response to the application indicates those persons each say Mrs Kyaing raised her voice to them when she complained about this issue to them. Again, it is not clear how this matter supports an allegation that either of the persons named in her application behaved unreasonably towards her.

[6] Section 789FD of the Fair Work Act 2009 (the Act), below, prescribes that reasonable management action carried out in a reasonable manner is not bullying at work.

“789FD When is a worker bullied at work?

(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally covered business:

(i) an individual; or

(ii) a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.

(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:

(a) the person is:

(i) a constitutional corporation; or

(ii) the Commonwealth; or

(iii) a Commonwealth authority; or

(iv) a body corporate incorporated in a Territory; or

(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;

then the business or undertaking is a constitutionally-covered business.”

[7] Based on the information provided in Mrs Kyaing’s application and her expansion on these matters during the conference, in my opinion, it is unlikely that if Mrs Kyaing proceeded to a hearing of her application she would be able to prove that she has been bullied at work, within the meaning of section 789FD of the Act, and that there is a risk that she will continue to be bullied at work. Consequently, I recommend she not pursue the application any further.

[8] If however, Mrs Kyaing does wish to have her application continue to a hearing in court she is directed to file in the Commission and at the same time serve on both persons named and her employer, statements of evidence for each witness she will be calling at the hearing in support of her application (including herself), a written outline of her submissions and copies of any supporting documentation by no later than 4.00pm Monday, 10 August 2020. The Commission will then notify the parties of a date for hearing and issue further directions for the persons named and as appropriate the employer, to similarly provide witness statements and submissions in reply.

[9] If Mrs Kyaing does not file witness statements and her other materials by the due date above the file will be closed and there will be no further proceedings.

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