DECISION

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

Ms Aferdita (Rita) Shehu
(AB2020/3)

COMMISSIONER LEE

MELBOURNE, 10 SEPTEMBER 2020

Application for an FWC order to stop bullying – whether application has no reasonable prospects of success – whether orders should be made given present circumstances – nature of the power and discretion discussed – particular circumstances applying in this case including the persons named not currently working at applicants work location – in all of the circumstances not persuaded that there is a risk of further bullying –no jurisdictional basis to make stop bullying orders – application dismissed.

1. Background

[1] This decision deals with an application that has been made by Ms Aferdita (Rita) Shehu (Applicant) for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the Act). The application alleged bullying conduct by two individuals in a workplace which is conducted by Kmart Australia Limited (the Employer). The workplace is a Kmart retail store and the Applicant and persons named were all employed at the Moonee Ponds store at the time the bullying conduct was alleged to have occurred. The Applicant has been an ongoing serving employee of the Employer for some 32 years.

[2] The two individuals against whom bullying was alleged are Mr Turner (Store Manager) and Mr Griffiths (Administration Manager). Mr Turner and Mr Griffiths did not appear in the proceedings.

[3] The alleged bullying behaviour occurred in the period prior to 13 December 2018. On 13 December 2018, the Applicant left work part way through her shift and has not returned to work since. Her treating medical practitioners have supplied ongoing medical certificates certifying her incapacity to work for most of the period since that time. It appears that the Applicant was given clearance to work in late February 2019. However, for various reasons the Applicant did not return to the workplace. 1 The most recent medical certificates state that the Applicant does not have the capacity to undertake any work at the workplace.2

[4] Subsequent to leaving the workplace in December 2018, the Applicant filed a workers compensation claim. The Employer in the Form F73 - Response from an employer/principal to an application for an order to stop bullying (Form F73) sets out their record of the history of the workers compensation claim process concerning the Applicant over the course of 2019. 3 It is not necessary to set out the detail of the workers compensation claim process, other than to note that the first claim was received by the Employer on 25 February 2019 and this claim was rejected. An additional workers compensation claim was made on 3 December 2019 and this was also rejected. According to the Employer, the Applicant was advised of her appeal rights against the rejection by the Employer’s self-insurer, CGT.4 This application for an order to stop bullying was lodged on 2 January 2020.

[5] The Applicant did not set out…

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 Ms Aferdita (Rita) Shehu

Details

AGLC: Ms Aferdita (Rita) Shehu [2020] FWC 4544
Case: [2020] FWC 4544
Decision Date: 10 SEPTEMBER 2020

CaseChat Overview and Summary

Ms Aferdita (Rita) Shehu applied to the Fair Work Commission for an order to stop bullying against her by certain individuals. The applicants were employees of an entity, and the dispute centred on the alleged bullying. The Commission was required to decide whether the application had no reasonable prospects of success and whether, given the circumstances, it should make the orders requested. The court needed to consider the nature of its power and discretion in making such orders, as well as the specific circumstances of the case.

The Commission noted that the individuals named in the application were not currently working at the applicant’s work location. It considered the applicants’ submissions and evidence, but was not persuaded that there was a risk of further bullying. The Commission emphasised that it must only make an order if it was satisfied that there was a risk of further bullying and that it was in the interests of justice to do so. Given the present circumstances, the Commission found that there was no jurisdictional basis to make the stop bullying orders.

In light of the above, the Commission dismissed the application. It found that there was no reasonable prospect of success for the application and that, in the present circumstances, it was not appropriate to make the orders sought. The Commission concluded that it was not persuaded that there was a risk of further bullying and that it was in the interests of justice to make the orders. The Commission’s decision was based on a careful consideration of the evidence and the specific circumstances of the case.

Orders