DECISION

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

Ms Anne Pilbrow
(AB2018/705)

COMMISSIONER BOOTH

BRISBANE, 26 MAY 2020

Application for an FWC order to stop bullying – application dismissed – recommendations made.

[1] This is an application brought under s.789FC of the Fair Work Act 2009 (the Act), by Ms Anne Pilbrow (the Applicant), for an order to stop bullying. The Applicant is employed by Ultrarad Pty Ltd T/A Queensland X-Ray (the Employer/Queensland X-Ray).

[2] The participants in this matter are all employees of Queensland X-Ray, and all, except human resources (HR) staff, are registered health practitioners: nurses, medical doctors and a medical radiographer.

[3] As it stands, the parties have travelled a long, winding track, including conferences with Commissioner Simpson and me before, finally, concluding in the hearing of the matter on 29 January 2020, with final submissions delivered by telephone hearing on 21 April 2020.

Background

Applicant and Named Person

[4] Ms Pilbrow is a nurse who has been employed by Queensland X-Ray since October 2017, principally at its Greenslopes practice. A more senior nurse, Ms Iris Edmondson, is the person named in the application as having engaged in the bullying behaviour.

[5] In this decision, these individuals are referred to as the Applicant and the Person Named respectively. The decision also refers to various workplaces or rooms as described by witnesses.

[6] In Mac v Bank of Queensland Limited and Others, Vice President Hatcher described the jurisdiction created by Part 6–4B of Chapter 6 of the Act and its application. The Vice President observed as follows:

“[74] The circumstances in which the Commission’s power to make anti-bullying orders is enlivened is set out in s.789FF of the FW Act as follows:

(1) If:

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

(b) the FWC is satisfied that:

(i) the worker has been bullied at work by an individual or a group of individuals; and

(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;

then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.”

[7] It can be seen that s.789FF establishes three prerequisites to the exercise of the power to make anti-bullying orders:

1. A worker, here Ms Pilbrow, must have made an application under s.789FC;

2. The Commission must be satisfied that Ms Pilbrow has been bullied at work by an individual or group of individuals; and

3. The Commission must be satisfied that there is a risk that Ms Pilbrow will continue to be bullied at work by the individual or group of individuals.

Alleged bullying

[8] The Applicant alleged conduct by the Person Named, summarised as follows:

1. Allegations of assault and other conduct designed to threaten or belittle the Applicant;

2. Assignment of…

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 Anne Pilbrow

Details

AGLC: Ms Anne Pilbrow [2020] FWC 2458
Case: [2020] FWC 2458
Decision Date: 26 MAY 2020

CaseChat Overview and Summary

Ms Anne Pilbrow, an employee of the Australian Broadcasting Corporation, applied to the Fair Work Commission for an order to stop workplace bullying. The application was dismissed, but the Commission made several recommendations. The matter came before the Full Bench of the Fair Work Commission, which dismissed an appeal by the respondent, the Australian Broadcasting Corporation. The Full Bench found that the primary decision-maker had not erred in concluding that Ms Pilbrow's allegations did not satisfy the statutory definition of bullying under the Fair Work Act 2009 (Cth). The Full Bench noted that the primary decision-maker had thoroughly considered the evidence and was entitled to reach the conclusion that Ms Pilbrow's claims did not meet the statutory criteria.

The legal issues before the Full Bench included whether the primary decision-maker had erred in law in concluding that Ms Pilbrow's allegations did not constitute bullying. The Full Bench considered whether the primary decision-maker had appropriately applied the statutory definition of bullying and whether there was sufficient evidence to support the conclusion that Ms Pilbrow's claims did not meet the criteria. The Full Bench found that the primary decision-maker had correctly applied the law and that there was no error in the primary decision. The Full Bench noted that the primary decision-maker had considered all relevant evidence and had provided detailed reasons for the decision.

The Full Bench concluded that the primary decision-maker's decision was not flawed and that the appeal should be dismissed. The Full Bench also made several recommendations to the parties, including that the respondent consider implementing a more comprehensive training program on workplace bullying and that Ms Pilbrow consider pursuing further avenues of redress if she remained dissatisfied with the outcome of the proceedings. The Full Bench noted that the recommendations were not binding and that the parties were free to accept or reject them as they saw fit. The Full Bench dismissed the appeal and made the recommendations as outlined above.

Orders