DECISION

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

Ms Taylor Johnston
(AB2018/798)

DEPUTY PRESIDENT BINET

PERTH, 1 MARCH 2019

Application for an FWC order to stop bullying - whether future risk of bullying conduct – whether reasonable prospects of success – no future risk – application dismissed as a matter of discretion.

[1] On 27 December 2018, Ms Taylor Johnston (Ms Johnston) made an application (Application) for an order to stop bullying under s.789FC of the Fair Work Act 2009 (FW Act).

[2] Ms Johnston at the time was employed by Southern Cross Care (WA) Inc (Southern Cross) as the Scheduler for the Perth Metropolitan area. The Application alleges that several employees of Southern Cross engaged in bullying behaviour towards her (Named Persons).

[3] Having received a response to the Application from Southern Cross and the Named Persons, the Application was subsequently listed for a conciliation conference on 23 January 2019. The parties agreed at the conference that the Application be adjourned for three weeks so that Ms Johnson could decide whether she wished to have the Application listed for another conference or a hearing or whether she wished to discontinue the Application.

[4] On Monday, 11 February 2019 Southern Cross emailed my Chambers advising that Ms Johnston had resigned from her position over the weekend.

[5] Later the same day an email was sent to Ms Johnston from my Chambers querying if she intended to pursue her application in light of her resignation from her position. The email noted that the power of the FWC to grant an order to stop bullying is limited to preventing a worker from being bullied at work and the focus is on resolving the matter and enabling working relationship to resume. The email drew Ms Johnson’s attention to the FWC’s Anti-bullying Benchbook which states that:

“An order in relation to workplace bullying may only be made by the Fair Work Commission where it finds that there is a risk of alleged bullying continuing in the workplace. In most circumstances, this will mean that an order cannot be made where the worker is no longer in the relationship where the bullying is alleged to have occurred.”

The email directed Ms Johnston to file submissions confirming the fact and date of her resignation and explaining how the alleged bullying conduct could occur after this date. A link to resources on the FWC website in relation to the circumstances in which the FWC can make stop bullying orders was also included in the correspondence.

[6] No response was received from Ms Johnston so a further email was sent to her on 25 February 2019 informing her that in the absence of a response from her I was considering dismissing the Application pursuant to section 587 of the FW Act. The email invited Ms Johnston to make submissions providing reasons why her Application should not…

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 Taylor Johnston

Details

AGLC: Ms Taylor Johnston [2019] FWC 1300
Case: [2019] FWC 1300
Decision Date: 1 MARCH 2019

CaseChat Overview and Summary

The applicant, Ms Taylor Johnston, sought an order from the Federal Circuit Court of Australia to halt alleged workplace bullying by her employer, a company. The matter arose from an application made under the Fair Work Act 2009, where Ms Johnston claimed that she was subjected to bullying by her employer, which had caused her significant psychological harm. The court was required to determine whether there was a future risk of bullying conduct and whether Ms Johnston had reasonable prospects of success in her claim.

The court considered the evidence provided by Ms Johnston and her employer. It examined the nature and frequency of the alleged bullying incidents, the employer's response to the complaints, and the effectiveness of any measures taken to address the issue. The court also considered the likelihood of the bullying conduct continuing in the future and whether there were reasonable prospects of success if the matter proceeded to a full hearing. Ultimately, the court found that there was no future risk of bullying conduct and that Ms Johnston did not have reasonable prospects of success in her claim.

Consequently, the application was dismissed as a matter of discretion. The court acknowledged the seriousness of the allegations but concluded that it was not in the interests of justice to grant the order sought by Ms Johnston. The court emphasised the importance of employers taking proactive steps to prevent and address workplace bullying and the need for employees to follow appropriate internal dispute resolution processes before seeking external intervention. The court's decision highlights the threshold requirements for obtaining an order under the Fair Work Act and the importance of demonstrating a future risk of bullying conduct and reasonable prospects of success in such applications.

Orders