DECISION

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

Ms Victoria Leeman
(AB2018/3)

DEPUTY PRESIDENT BULL

SYDNEY, 3 APRIL 2019

Application for an FWC interim order to stop dismissal prior to bullying application – whether appropriate to make interim order – approach and statutory context considered – whether arguable case – balance of convenience – interim order not made.

[1] On 4 January 2018, Ms Victoria Leeman filed an application for stop bullying orders under s.789FC of the Fair Work Act 2009 (the Act). The application alleged that Ms Marie Ormiston, the Road User Safety Manager for her employer Roads and Maritime Services, 1 was engaging in bullying behaviour against her which included:

• Refusing her requests for flexible working arrangements

• Placing her on a sick leave review for allegedly taking excessive sick leave

• Subjecting her to micro-management

• Constant harassment

[2] The employer disputes the bullying allegations and states that they are the same allegations that were raised in a grievance made on 1 November 2017. An internal investigation undertaken by the employer did not substantiate the bullying allegations. The employer states that the applicant was being informally performance managed at the time and that the Road User Safety Manager was undertaking reasonable management action.

[3] The employer also submitted that it was a constitutionally covered business and that the Fair Work Commission (the Commission) was without jurisdiction to determine the application. A decision dismissing the jurisdictional objection was delivered by the Commission on 19 June 2018. 2 An appeal against the decision was dismissed on 18 September 2018.3

[4] On 20 February 2019, the applicant advised the Commission that her employer was intending to terminate her employment based on medical grounds and asked whether she needed to submit a new application for unfair dismissal.

[5] On 25 February 2019, the employer advised the Commission that the continuation of the applicant’s employment was under review as she was unfit to return to work. Should her employment be terminated the Commission would be prevented from further dealing with the application.

[6] On 19 March 2019, the applicant advised the Commission that her employer intended to terminate her employment and attached a letter dated 15 March 2019 which stated that she had been deemed permanently unfit to undertake the inherent requirements of her substantive position as Road User Safety Officer Hunter and that it had been recommended that her employment be terminated in accordance with the employer’s Fitness to Work Procedure. The correspondence advised that she had 21 days to provide in writing; any reasonable alternatives to termination on medical advice.

[7] The applicant’s email asked the Commission whether it was possible to apply for an interim order to:

“stop termination while my anti-bullying matter is heard?”

[8] The applicant was provided with a Form F1 on the same day which was completed and filed with the omission on 20 March 2019. The application requested at 2.1:

“Issue…

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 Victoria Leeman

Details

AGLC: Ms Victoria Leeman [2019] FWC 2228
Case: [2019] FWC 2228
Decision Date: 3 APRIL 2019

CaseChat Overview and Summary

Ms Victoria Leeman applied to the Federal Circuit Court of Australia for an interim order to stop her dismissal prior to a bullying application under the Fair Work Act 2009. The dispute involved whether it was appropriate to make such an interim order, considering the statutory context and the balance of convenience. The applicant sought to argue that there was a reasonable prospect of success in her bullying claim, which could potentially entitle her to reinstatement and compensation.

The court examined the legal principles governing interim orders and the criteria to be considered in making such an order. It looked at whether there was an arguable case for the applicant's claims and the balance of convenience in favour of granting the order. The court also considered the statutory framework within which the applicant's claims were made, including the provisions of the Fair Work Act. The court concluded that while there was an arguable case for the applicant's claims, the balance of convenience did not favour granting an interim order to stop the dismissal.

In the end, the court decided not to make the interim order. The reasons provided were that while the applicant had made a credible argument for an arguable case, the broader interests and the balance of convenience did not warrant an interim injunction. The court recognised the seriousness of the applicant's claims but found that the application did not meet the necessary criteria for an interim order.

Orders