DECISION

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

N.B (Anonymised)
(AB2019/235)

DEPUTY PRESIDENT LAKE

BRISBANE, 5 AUGUST 2019

Application for an order to stop bullying – jurisdiction – whether alleged conduct capable of meeting the requirement of being bullied at work – reasonable management action – application dismissed.

1. Background

[1] On 3 May 2019 Ms N.B. (the Applicant) made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the Act).

[2] I note that the Applicant had, earlier this year, previously made an application under s.372 of the Act alleging contraventions to the general protections provisions under the Act not involving dismissal during the course of her employment. I attempted to conciliate the general protections matter between the parties but was unsuccessful doing so. That file was subsequently closed at the Fair Work Commission (FWC) and the Applicant was at liberty to press her claim at the Federal Circuit Court.

[3] The Applicant considered her circumstances and ultimately lodged the present application largely in the same terms as those contained within her general protections application.

[4] The present application alleges bullying behaviour by an employee, Ms D., in a workplace conducted by SECUREclean (SC) in Queensland.

[5] The Applicant was employed as a cleaner by SC at a shopping centre on the Gold Coast from on or about 24 September 2018.

[6] Ms D. is a business manager for SC and is based at SC’s head office in Queensland.

[7] The Applicant submitted that from early on in her employment she raised a number of concerns with management regarding health and safety concerns, raised complaints that she and other staff were not receiving sufficient training and that she was feeling belittled and intimidated by another colleague, Ms G.

[8] The Applicant then submitted that from the period commencing 11 December 2018 to 17 February 2019 (Applicant’s last day at work) she was bullied at work and provided a number of incidents which she alleges took place to support her claim.

[9] The Respondent parties deny that any action taken by them was bullying, and submitted a jurisdictional objection under section 789FD(2) of the Act, submitting that any alleged ‘bullying’ behaviour undertaken by the employer related to reasonable management action carried out in a reasonable manner.

[10] The Commission held a preliminary conference on 28 May 2019. Arising from the conference, directions for the filing of submissions and materials were issued in the following context as confirmed with all parties:

“(a) N.B. (the Applicant) has applied for an FWC order to stop bullying.

(b) There is apparently no contest that the applicant is a worker within the meaning of the Fair Work Act 2009 (the Act) and that any alleged conduct relied upon has taken place in the context of a constitutionally-covered workplace.

• the conduct relied upon was repeated unreasonable behaviour that…

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.

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Details

Case: [2019] FWC 5413
Decision Date: 5 AUGUST 2019

CaseChat Overview and Summary

The matter before the court was an application by N.B., an employee, seeking an order to prevent bullying at work. The respondent was N.B.'s employer. The dispute centred on whether the alleged conduct by the employer constituted bullying under the applicable legislation and if the court had jurisdiction to grant the requested relief. The case was heard in the Fair Work Commission.

The primary legal issue was whether the conduct alleged by N.B. met the statutory definition of bullying at work. The court had to determine if the alleged conduct was repeated and unreasonable behaviour directed towards N.B. that created a risk to health and safety. Additionally, the court needed to consider whether the employer's actions were reasonable management actions rather than bullying. The jurisdiction of the court to issue an order preventing bullying was also a matter for determination.

The court found that the conduct in question did not meet the threshold of being considered bullying. The actions taken by the employer were deemed reasonable management actions in response to N.B.'s performance issues. The court held that the conduct did not create a risk to health and safety as required by the legislation. Consequently, the application was dismissed. The court emphasised that its role was not to substitute its judgment for that of the employer in managing workplace issues.

The court declined to make an order preventing bullying, finding that the employer's actions did not amount to bullying under the relevant statute. The application was dismissed, and no further orders were made.

Orders