DECISION

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

P.K.
(AB2014/1415)

COMMISSIONER HAMPTON

ADELAIDE, 11 FEBRUARY 2015

Application for an FWC order to stop bullying - applicant subject to notice of dismissal prior to making the application - whether worker entitled to make the application - whether apparent failure to make bullying complaint in workplace relevant to jurisdiction - whether apparent that no future risk of bullying arises and if so whether the application should be dismissed - application properly made - s.365 application made but no timely election made to proceed to the Court or Commission - no discernable future risk of bullying conduct directed to the applicant - no reasonable prospects of success - no direct connection between dismissal and application - application dismissed as a matter of discretion.

1. Background

[1] On 8 September 2014, Mr P.K (the applicant) made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the FW Act). I will for convenience describe this as the AB application. The AB application alleges bullying conduct by two employees in his workplace which is a relatively small restaurant operation.

[2] The AB application contained a collection of documents to support the applicant’s case. One of the documents was a termination letter from the employer dated 5 September 2014 and this advised that the termination of the applicant would take effect on 19 September 2014.

[3] At the same time as lodging the AB application, the applicant lodged an application under s.372 of the FW Act for an alleged breach of the General Protections. The General Protections matter was assigned to a Member of the Commission and was subsequently withdrawn at a conference on 13 November 2014 as the applicant apparently indicated that he had lodged the application under the wrong provision.

[4] On 21 October 2014, the applicant filed another application for an alleged breach of the General Protections. This new application was made under s.365 of the FW Act, which is a provision applicable in the case of an alleged dismissal. The s.365 matter was the subject of a conference under the FW Act on 13 November 2014, however the matter was not resolved and a certificate 1 to that end was issued by the Commission on 17 November 2014.

[5] The AB application proceeded in the normal course and the responses provided by the employer did not raise any jurisdictional objections but indicated that the applicant had been dismissed and his last shift was 19 September 2014.

[6] The AB application was listed for preliminary proceedings by telephone on 13 October 2014. All parties participated in the conference. The potential consequences of the applicant’s apparent dismissal was raised with the parties, however beyond an assertion that this would preclude the AB application, the employer did not assert a basis for that proposition. Following the conference the parties were directed as follows:

● The employer…

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 P.K.

Details

AGLC: P.K. [2015] FWC 562
Case: [2015] FWC 562
Decision Date: 11 FEBRUARY 2015

CaseChat Overview and Summary

The case involves an application by an individual for an order under the Fair Work Commission (FWC) to stop bullying in the workplace. The applicant, who had been served with a notice of dismissal prior to making the application, sought relief against their employer. The legal issues before the court included whether the applicant was entitled to make the application, the relevance of an apparent failure to make a bullying complaint in the workplace to the court's jurisdiction, and whether the apparent absence of any future risk of bullying meant the application should be dismissed.

The court considered the statutory provisions and relevant case law to determine the jurisdiction and merits of the application. It found that the applicant was indeed entitled to make the application, despite having been served with a notice of dismissal. The court further held that the apparent failure to make a workplace complaint was not relevant to the jurisdiction, and that there was no discernible future risk of bullying directed at the applicant. Additionally, the court found that there were no reasonable prospects of success for the application and no direct connection between the applicant's dismissal and the application. Consequently, the court exercised its discretion to dismiss the application.

The final orders of the court were that the application for an order under the FWC to stop bullying be dismissed. The court also noted that the applicant had made a s.365 application but had not made a timely election to proceed to the FWC or the Court. The absence of a future risk of bullying conduct further supported the dismissal of the application.

Orders