DECISION

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

Ms LP
(AB2015/229)

COMMISSIONER HAMPTON

MELBOURNE, 4 NOVEMBER 2015

Application for an order to stop bullying – whether bullying conduct – whether alleged conduct by individuals formerly in the workplace is relevant – whether various conduct was reasonable management action – conduct of determinative conference discussed – multiple and interrelated allegations considered against the evidence – some unreasonable conduct found – whether created risk to health and safety – jurisdiction found – whether orders should be made – significant subsequent positive developments in the workplace – present circumstances of the applicant uncertain – not presently satisfied that orders can and should be made – further submissions sought.

1. Introduction and background

[1] Ms LP (the applicant) has made an application for an order to stop bullying under s.789FD of the Fair Work Act 2009 (the FW Act). The application alleges 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) 1, 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).

[3] In all of the circumstances I have “de-identified” the names of the parties and individuals in this decision. These circumstances include the nature of some of the matters considered in this application and the fact that it relates to an on-going employment relationship. Further and of significance, this matter involves the alleged conduct of a number of individuals, who have not given evidence, in circumstances where evidence about their conduct must be considered and findings made for reasons explained in due course. The identification of the workplace would tend to identify all individuals. I also note that this matter has been heard at all times in a private conference and all parties either supported, or did not oppose, the issuing of a decision in this form.

[4] I note that although not named as individuals whose conduct is directly relied upon in the application, the applicant also now seeks to rely upon certain events that have included others in the workplace including a former Head Chef and a former Supervisor who have since left the business.

[5] Some of the background to this application is set by an earlier anti-bullying application made by the applicant. That application was made on 25 September 2014 and involved some of the allegations now made in this matter. The 2014 application was subject to extensive conciliation and on face value significant progress was made in establishing an agreed framework for the applicant to fully resume her employment at the restaurant. This included a series of recommendations made 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 [2015] FWC 6602
Case: [2015] FWC 6602
Decision Date: 4 NOVEMBER 2015

CaseChat Overview and Summary

Ms LP applied to the Fair Work Commission for an order to stop bullying by individuals formerly in her workplace. The application raised questions about whether the alleged conduct constituted bullying, whether past workplace conduct was relevant, and whether certain actions were reasonable management measures. The Commission was tasked with determining if the alleged conduct amounted to bullying, assessing the relevance of past actions, and evaluating the reasonableness of the management's response.

The court examined the nature of the conduct and whether it constituted bullying under the relevant legislation. It also considered whether the historical conduct of the individuals in question was pertinent to the current application. Additionally, the court evaluated whether certain actions taken by the employer were reasonable management steps in response to the allegations. The court discussed the conduct of a determinative conference and examined multiple and interrelated allegations against the evidence presented. The court found some conduct to be unreasonable but was not presently convinced that a risk to health and safety had been created. The Commission found jurisdiction to be applicable but was not satisfied that orders should be made at that time, given the significant positive changes in the workplace and the uncertain present circumstances of the applicant. The Commission sought further submissions before making a final decision.

Orders