Ms W (a pseudonym) - [2022] FWC 1627

[2022] FWC 1627

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Ms W (a pseudonym)

(AB2021/438)

DEPUTY PRESIDENT BOYCE

SYDNEY, 28 JUNE 2022

Application for an FWC order to stop bullying – Applicant failed to meet deadlines on tasks on multiple occasions – concerns raised with Applicant about performance – Applicant rejects any performance concerns exist – Applicant placed upon informal performance management – Applicant filed anti-bullying application – performance concerns not unreasonable – informal performance management process not lacking any evident or intelligible justification – claims of bullying rejected – unnecessary to consider employer’s “reasonable management action” defence - application dismissed

Introduction

The Applicant (Ms W, a pseudonym) has filed a Form F72 anti-bullying application (Anti-Bullying Application) with the Fair Work Commission (Commission) seeking relief (in the form of stop-bullying orders) under Part 6-4B of the Fair Work Act 2009 (Act).

On 14 December 2021, I made an order pursuant to s.594 of the Act for the names of the parties to the proceedings, along with the names of any witnesses in the proceedings, to be anonymised in any decision or other order published by the Commission.[1] The submissions and evidence of the parties referred to or otherwise extracted in this decision have been amended accordingly to reflect such anonymisation.

The sole Respondent to the Anti-Bullying Application is an individual, the Applicant’s Manager, hereinafter “Ms R”. Both the Applicant and Ms R are employed by the same constitutionally covered business,[2] hereinafter “Employer”. The Applicant is a “worker” within the meaning of s.789FC(2) of the Act, and her allegations as to bullying concern alleged conduct towards her when she was “at work”. It is apparent that the Applicant holds a “genuine belief” that she has been bullied at work (s.789FC(1)).

Conciliation conferences were held with the parties over the course of a three-month period. Outside of these conferences, the Employer sought to conduct and finalise two internal investigations into the Applicant’s alleged bullying claims against Ms R, and to engage in a workplace dispute resolution process to attempt to resolve the proceedings. On 13 October 2021, it became apparent that the proceedings would not be resolved by agreement between the parties, and directions were issued to program the matter for hearing. These directions were subsequently amended (extended) at the request of both parties.

A Hearing was conducted in Sydney (in person) on 7 December 2021.

At the Hearing, the Applicant was represented (with permission) by Ms Claire Roberts, of counsel, instructed by Ms Sandra Marks, Legal Team Leader, Harmers Workplace Lawyers. Ms R and the Employer were both represented (with permission) by Ms Alice DeBoos, Managing Partner, Kingston Reid Lawyers.[3]

Ms R and the Employer oppose the Anti-Bullying Application, including any relief sought by the Applicant flowing from same. In this regard, Ms R and the Employer rely upon three core contentions:

(a) the allegations made by the…

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 W (a pseudonym)

Details

AGLC: Ms W (a pseudonym) [2022] FWC 1627
Case: [2022] FWC 1627
Decision Date: 28 JUNE 2022

CaseChat Overview and Summary

The matter before the Fair Work Commission involved Ms W, an employee who filed an application for an order to stop alleged bullying by her employer. The employer had previously raised concerns with Ms W about her performance, particularly regarding her failure to meet deadlines on tasks on multiple occasions. Ms W rejected any suggestion that her performance was lacking, and subsequently filed an anti-bullying application. The central issue before the Commission was whether the employer's performance management actions amounted to bullying and if the employer had a defence of reasonable management action.

The Commission considered whether the performance concerns were reasonable and found that they were not unreasonable. Furthermore, the Commission held that the employer's informal performance management process was not lacking any evident or intelligible justification. Consequently, the claims of bullying were rejected. The Commission did not find it necessary to consider the employer's defence of reasonable management action, as the bullying claims were dismissed outright.

Ms W's application was dismissed by the Commission, which concluded that the employer's actions did not amount to bullying. The Commission found that the employer's performance management process was justified and that Ms W's claims were without merit. The employer was not required to address the reasonable management action defence as the primary bullying claims were already dismissed. This decision serves as a reminder of the importance of fair and reasonable performance management processes in the workplace and the stringent criteria that must be met for a bullying claim to succeed.

Orders