DECISION

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

Ms LP
(AB2015/229)

COMMISSIONER HAMPTON

ADELAIDE, 12 FEBRUARY 2016

Fair Work Commission order to stop bullying – findings of unreasonable conduct made in earlier decision – whether orders should be made given present circumstances – nature of the power and discretion discussed – particular circumstances applying in this case including changes in the group of employees and within the workplace – not persuaded that orders should be made at this time.

1. Background

[1] This decision deals further with an application that has been made by Ms LP (the applicant) for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the FW Act). The application alleged bullying conduct by a group of individuals in a workplace which is conducted by a private sector corporate employer; “A” Pty Ltd (the employer). The workplace concerned is a well-known family owned restaurant operating in Adelaide, South Australia.

[2] The group of individuals includes Mr JP (a Co-Director/owner and Manager of the employer), Ms GF (the Accounts Clerk), and Mr NL (a lawyer acting on behalf of the employer and others in relation to an earlier application made by the applicant under these provisions). For convenience, and noting that common positions have been adopted, I will describe the employer and the individual parties as the respondent parties.

[3] The application was substantially dealt with in a decision issued on 4 November 2015 in LP [2015] FWC 6602 (the November decision) and this decision should be read in conjunction with the findings made in that matter. Without detracting from the detail of the November decision, I found that:

“[187] On that basis, the unreasonable conduct as I have found it to be involves a group of individuals and although it involves a range of behaviours, it is relevant to the overall consideration of bullying conduct.

[188] In terms of the risk to health and safety, the fact that the applicant is presently unfit for work and has been certified as such by her treating medical practitioners is relevant and indicative of risk. It is not however conclusive in its own right. This arises because those practitioners are dealing with the combined impact of a range of work and non-work factors upon the applicant and I need to assess the risk based upon findings of fact made in this matter about the actual unreasonable conduct.

[189] Further, for reasons outlined earlier, risk to health and safety means the possibility of danger to health and safety, and is not confined to actual danger to health and safety. The ordinary meaning of ‘risk’ is exposure to the chance of injury or loss, and for present purposes, the risk must also be real and not simply conceptual. In that regard, whilst elements of conduct might not create a relevant risk in isolation, it is the overall effect and context of the behaviour as found by…

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 LP

Details

AGLC: Ms LP [2016] FWC 763
Case: [2016] FWC 763
Decision Date: 12 FEBRUARY 2016

CaseChat Overview and Summary

The case involved Ms LP, who brought proceedings before the Fair Work Commission, appealing a decision regarding workplace bullying. The respondent was the employer, and the matter was about whether the Commission should make orders to stop bullying, following a previous decision that found certain conduct unreasonable. The Fair Work Commission was tasked with determining whether, given the current circumstances, it was appropriate to issue orders to prevent the alleged bullying.

The legal issues before the Commission included the nature of its power and discretion to make orders to stop bullying, the circumstances under which such orders should be made, and the particular circumstances of this case. The Commission considered the changes in the group of employees and the workplace environment since the previous decision. It had to assess if the present circumstances justified the continuation or alteration of the orders.

The Commission, in its reasoning, examined the findings of unreasonable conduct from the earlier decision and the subsequent changes in the workplace. It noted that while the initial findings of unreasonable conduct were valid, the current circumstances, including the changes in the workforce and the workplace, did not provide a compelling reason to make orders at this time. The Commission concluded that it was not persuaded that the present circumstances warranted the issuance of orders to stop bullying.

As a result, the Commission decided not to make orders at this time, considering the changes in the workplace and the absence of compelling evidence that such orders were necessary under the current circumstances. The decision reflected the Commission's discretion in balancing the need for workplace harmony with the particular context of the case.

Orders