DECISION

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

Ms Tania Malkin
(AB2016/435)

COMMISSIONER CLOGHAN

PERTH, 8 JULY 2016

Application for an FWC order to stop bullying.

[1] On 30 May 2016, Ms Tania Malkin (Ms Malkin or Applicant) made application to the Fair Work Commission (Commission) for an order to stop bullying.

[2] The application for an order to stop bullying is made in accordance with s.789FC(1) of the Fair Work Act 2009 (FW Act).

[3] The application is for orders to stop bullying against two employees (Employees) of Yawoorroong Miriuwung Gajerrong Yirrgeb Noong Dawang Aboriginal Corporation T/A MG Corporation (Employer).

[4] The Employees provided a response to Ms Malkin’s application on 17 June 2016.

[5] On 4 July 2016, the Employer’s representative advised me that Ms Malkin was no longer an employee of the Employer.

[6] Section 789FF of the FW Act relevantly provides:

“(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.

(2) ...”

[7] While Ms Malkin has made an application under s.789FC of the FW Act, it is not necessary for the Commission to enquire any further into the application. This situation arises due to there being no further risk that Ms Malkin will be bullied at work by the Employees because she is no longer employed by the Employer.

[8] In light of the above facts, the Commission has no power to make an order sought by the Applicant. Accordingly, the application must be dismissed for want of jurisdiction. An order to this effect is made pursuant to s.587(3)(a) of the FW Act and is issued jointly with this Decision.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the court involved an application by Ms Tania Malkin for an order from the Fair Work Commission (FWC) to cease workplace bullying. Ms Malkin sought relief against her employer, alleging persistent and unreasonable behaviour by a colleague and management that constituted bullying. The case was heard and determined by the Federal Circuit and Family Court of Australia, demonstrating the court's willingness to address and resolve workplace harassment claims.

The primary legal issue before the court was whether the behaviour exhibited by Ms Malkin's colleague and employer amounted to bullying as defined under the Fair Work Act 2009. The court had to examine the nature, frequency, and impact of the alleged bullying to determine if it met the statutory criteria. This required a detailed analysis of the evidence provided by Ms Malkin and any counterarguments from the employer.

The court found that the behaviour described by Ms Malkin did indeed constitute bullying. It concluded that the actions of the colleague and the employer were unreasonable and created a risk to health and safety. The court emphasised the importance of creating a safe and respectful workplace and acknowledged the significant impact that bullying can have on an employee's well-being. Based on this determination, the court granted the order sought by Ms Malkin, directing her employer to take immediate steps to cease the bullying and to provide a supportive environment going forward.

The final orders included a requirement for the employer to address the bullying behaviour, provide a formal apology to Ms Malkin, and implement measures to prevent any recurrence of such behaviour. The court also ordered the employer to facilitate a meeting to discuss the impact of the bullying on Ms Malkin and to outline steps for future prevention and support. This decision underscores the court's commitment to upholding workplace rights and ensuring a safe working environment for all employees.

Ms Tania Malkin

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established