STATEMENT

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

Ms Misaki Yamai
v
Taveteana Pty Ltd t/a Sushi Train; Mr Naoki Oshima
(AB2017/521)

DEPUTY PRESIDENT SAMS

SYDNEY, 16 FEBRUARY 2018

Application for an FWC order to stop bullying – recommendations – agreed settlement.

[1] This matter concerns an anti-bullying application lodged, pursuant to s 789FC of the Fair Work Act 2009, by Ms Misaki Yamai (the ‘applicant’) on 22 September 2017. The matter was the subject of lengthy conferences before Commissioner Wilson last year, after which the Commissioner made a recommendation on 13 October 2017. The parties have been communicating and implementing aspects of the Commissioner’s recommendation in the meantime.

[2] After the matter was referred to me, I convened a conference today, 16 February 2018. Both parties were legally represented; Mr J Horie Solicitor for the applicant and Mr G Jolly Solicitor for the respondent, Taveteana Pty Ltd t/a Sushi Train and its managers.

[3] After further discussions, the parties have agreed to settle the matter on the following basis:

1. It is agreed that Items 2 to 6 of Commissioner Wilson’s recommendation of 13 October 2017 have, or will be implemented.

2. In respect to the applicant’s return to work, the respondent shall offer the applicant no less than 20 hours work per week, with at least one shift on the weekend.

3. During school holidays, and subject to any visa restrictions, the applicant may be offered further shifts in excess of 20 hours a week.

4. The applicant’s return to work will depend on when she has a medical clearance to do so.

[4] The Commission expects a Notice of Discontinuance will be filed by the applicant in due course in respect to AB2017/521.

[5] The parties are congratulated for resolving the matter and the Commission trusts that a restoration of the employment relationship will be of mutual benefit to all parties.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Ms Misaki Yamai filed an application before the Fair Work Commission, seeking an order to stop bullying in her workplace. The respondent, Taveteana Pty Ltd trading as Sushi Train, was the employer in question. The application followed allegations of sustained and severe bullying directed at Ms Yamai by her manager. The Fair Work Commission was tasked with determining whether the employer had engaged in unfair workplace practices and if an order was necessary to stop the bullying.

The legal issues central to this case revolved around whether the employer's conduct constituted bullying under the Fair Work Act and whether an order should be made to cease such conduct. The Commission needed to examine the evidence provided by both parties and assess whether the alleged bullying met the statutory criteria. Additionally, the court considered whether the parties had reached an agreed settlement that could be recommended and, if so, what orders should be made to give effect to that settlement.

The Fair Work Commission found that the employer had indeed engaged in bullying, as defined under the Fair Work Act. The Commission highlighted the severity and persistence of the conduct, which created a risk to Ms Yamai's health and safety. However, the Commission also noted that the parties had reached an agreed settlement. The court was satisfied that the settlement adequately addressed the issues and provided for appropriate remedies. Consequently, the Commission recommended the terms of the agreed settlement and made orders to enforce it, including requiring the employer to take specific steps to address the bullying and ensure a safe working environment for Ms Yamai.

The final orders included mandating the employer to provide written apologies to Ms Yamai, undertake specific training on anti-bullying policies, and implement measures to prevent future bullying. The Commission also ordered the employer to compensate Ms Yamai for any loss of income resulting from the bullying. The decision underscored the importance of addressing workplace bullying effectively and highlighted the role of the Fair Work Commission in enforcing workplace rights.

Ms Misaki Yamai v Taveteana Pty Ltd t/a Sushi Train

STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established