DECISION

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

Ms Katrina Hohn
(AB2019/432)

DEPUTY PRESIDENT ASBURY

BRISBANE, 21 SEPTEMBER 2020

Application for an FWC order to stop bullying – whether bullying conduct – whether alleged conduct was reasonable management action carried out in a reasonable manner – findings made – limited procedural defects in performance management process do not constitute bullying and are capable of being addressed by the process– no basis to consider orders – application dismissed.

OVERVIEW

[1] Ms Katrina Gae Hohn (the Applicant/Ms Hohn) has applied to the Fair Work Commission (the Commission) for an order to stop bullying. The application has been made pursuant to s.789FC of the Fair Work Act 2009 (the Act) and is made in respect of Ms Hohn’s employment with the Commonwealth of Australia as a member of the Australian Public Service; specifically the Department of Human Services (now Services Australia) (Services Australia/the First Respondent). Ms Hohn alleges that she has been bullied at work by her direct manager, Mr Scott Hardingham (Mr Hardingham/the Second Respondent).

[2] Ms Hohn has been continuously employed by the Department of Human Services (and now Services Australia) since 1992. At present, Ms Hohn holds the position of EL1 Test Manager at the Brisbane Delivery Centre. In that role, Ms Hohn is responsible for testing outcomes across projects or programs of work implemented by Services Australia. Mr Hardingham commenced in a role as Ms Hohn’s supervisor on 18 August 2018.

[3] Ms Hohn’s case was a moving feast. In her Form F72 application, Ms Hohn described the behaviour that she considered constituted bullying by Mr Hardingham as follows:

“Since October 2018 after a HR complaint and absence from work, I have been provided extended periods of very little work, excluded from meetings that I previously would have been included in, offered very little in regard of support from HR or within my workplace. Seven months later I am advised that I was underperforming.”

[4] In response to a question on the Form F72 in relation to examples of the behaviour outlined above, specifically addressing what happened, who was involved etc, Ms Hohn responded:

“There are multiple witnesses to my being excluded from meetings and being given very little work. this has been ongoing from October 2018 to current.”

[5] Ms Hohn went on in the Form F72 application to state that she had been put into a performance review process referred to as Back On Track (BOT) by Mr Hardingham while a decision regarding a performance rating she had received was under review. Further, Ms Hohn stated that she had made a complaint of bullying via a HR tool operated by Services Australia. The outcome sought by Ms Hohn is stated to be: “mediation, respect and different role?”.

[6] In her written submissions, Ms Hohn listed headings taken from the Fair Work Commission’s “Guide to the Anti-bullying Jurisdiction” and then inserted under those headings samples 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 Katrina Hohn

Details

AGLC: Ms Katrina Hohn [2020] FWC 5053
Case: [2020] FWC 5053
Decision Date: 21 SEPTEMBER 2020

CaseChat Overview and Summary

Ms Katrina Hohn made an application to the Fair Work Commission for an order to stop bullying in her workplace. The application was made against her employer, and the nature of the dispute was whether the conduct alleged by Ms Hohn constituted bullying. The matter was heard in the Federal Circuit and Family Court of Australia.

The legal issues that the court was required to decide were whether the conduct alleged by Ms Hohn constituted bullying, and whether the conduct was reasonable management action carried out in a reasonable manner. The court examined the evidence and arguments presented by both parties and considered the relevant legal principles. The court found that there were limited procedural defects in the performance management process, but these did not constitute bullying and were capable of being addressed by the process.

The court's reasoning was that the conduct alleged by Ms Hohn did not amount to bullying as it was not unreasonable or oppressive. The court held that the conduct was reasonable management action carried out in a reasonable manner. The court further held that the limited procedural defects in the performance management process did not constitute bullying and were capable of being addressed by the process. As a result, the court dismissed the application and made no orders.

This decision provides guidance to employers and employees on what constitutes bullying and reasonable management action in the workplace. It also highlights the importance of following proper procedures when managing employee performance and addressing workplace issues.

Orders