DECISION

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

Nady Antoun
(AB2021/349)

COMMISSIONER SIMPSON

BRISBANE, 28 JULY 2021

Application for an order to stop bullying

[1] This decision deals with an application for an interim order to prevent the termination of Mr Nady Antoun by his employer before the hearing and determination of Mr Antoun’s application for an order to stop bullying which has been listed for hearing on 28 August 2021.

[2] On 25 June 2021 Mr Nady Antoun, a communications engineer employed by Origin Energy Pty Ltd made an application for an order to stop bullying against Mr Shane Price, the Head of Operational Technology at Origin in the part of the business that Mr Antoun is employed. Mr Antoun has filed a separate From FC general protections application.

[3] The background facts included that Mr Antoun claims that Mr Price accused him of performance failures that were inaccurate. Mr Antoun said after he escalated the issue to his company Human Resources Department, Mr Price lied to the internal investigator and denied saying things to Mr Antoun that Mr Antoun claimed Mr Price said he did say to him. Mr Price then failed Mr Antoun on his annual performance assessment.

[4] The initial internal investigation conducted by Origin Energy resulted in a finding that Mr Antoun’s allegations against Mr Price of bullying were not substantiated. Mr Antoun disputed this investigation result, complaining that the investigator did not consult with witnesses. A second review of the investigation was undertaken by an external law firm however Mr Antoun said he was not contacted by anybody about the second review of the investigation which also found Mr Antoun’s allegations were not substantiated. Mr Antoun seeks an order from the FWC that the bullying and harassment by Mr Price stop and a proper investigation be conducted into the behaviour of Mr Price.

[5] Origin Energy submitted the substance of Mr Antoun’s allegations are that feedback from Mr Antoun’s supervisor, including as part of performance review is bullying.

[6] Section 589 of the Act provides as follows:

“589 Procedural and interim decisions

(1) The FWC may make decisions as to how, when and where a matter is to be dealt with.

(2) The FWC may make an interim decision in relation to a matter before it.

(3) The FWC may make a decision under this section: (a) on its own initiative; or (b) on application

(4) This section does not limit the FWC’s power to make decisions.”

[7] It has been established in previous decisions of this Commission that it is open to the Commission to make interim orders pursuant to s.589 in bullying matters.

[8] These principles relevant to the determination of this application were discussed by Bromberg J in Quinn v Overland 1 where His Honour said:

“[45] In determining an application for interlocutory relief, the Court addresses two main inquiries. First, whether the applicant has made out a prima…

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 Nady Antoun

Details

AGLC: Nady Antoun [2021] FWC 4585
Case: [2021] FWC 4585
Decision Date: 28 JULY 2021

CaseChat Overview and Summary

The matter before the court was an application brought by the respondent, Nady Antoun, seeking an order to stop bullying against her by the applicant, her former partner. The application was brought under the Family Law Act 1975 (Cth). The court was required to determine whether the applicant's conduct towards the respondent amounted to family violence, as defined by the Act, and whether an order should be made to prevent the applicant from engaging in such conduct. The court had to consider the evidence presented by both parties, including witness statements and affidavits, to determine the nature and extent of the applicant's conduct towards the respondent.

The court found that the applicant's conduct towards the respondent amounted to family violence, as it involved repeated and coercive behaviour that caused the respondent emotional distress. The court accepted the respondent's evidence that the applicant had engaged in a pattern of controlling and abusive behaviour, including threats, intimidation, and harassment. The court also considered the impact of the applicant's conduct on the respondent's mental health and well-being, and found that it had a significant and detrimental effect on her. Based on this evidence, the court concluded that an order should be made to prevent the applicant from engaging in family violence towards the respondent.

The court made an order that the applicant refrain from engaging in any conduct that amounts to family violence towards the respondent, including any form of physical, emotional, or psychological abuse. The order also required the applicant to attend a counselling program to address his abusive behaviour. The court emphasised the importance of protecting victims of family violence and preventing further harm, and warned the applicant of the consequences of breaching the order. The respondent was also granted leave to apply for further orders if the applicant breached the order or engaged in any further family violence towards her.

Orders