Paula Denise Gilbard - [2023] FWC 2507

[2023] FWC 2507

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Paula Denise Gilbard

(AB2023/265)

DEPUTY PRESIDENT DOBSON

BRISBANE, 28 SEPTEMBER 2023

Application for an FWC order to stop bullying

This decision concerns an application made under section 789 FC of the Fair Work Act 2009 (Cth) for an order to stop bullying (the Application). The Applicant is Mrs Paula Denise Gilbard (the Applicant). The Applicant was at the time of the application, engaged in performing voluntary office work for the Animal Justice Party Limited (the Company) in Brisbane. The application is made against the Animal Justice Party and a further eight persons against whom bullying is alleged by the Applicant (the Named Persons). Each of the Named Persons is also an employee of Office Holder of the Company in various positions of Director, President, Vice President, Secretary, Treasurer, IT Manager and Human Resources Director.

The Respondent and Named Persons each deny having ever behaved unreasonably towards the Applicant.

The matter was initially allocated to Commissioner Spencer and the Commission conducted a conference of the parties on 7 September (the Conference). The Conference was attended by the Respondent and some of the Named Parties, by telephone and the matters remained unresolved. The Respondent made a jurisdictional objection that the Applicant was not a worker and also submitted that the Applicant was no longer performing work for the Respondent as she had been suspended. The Respondent subsequently withdrew the objection about the Applicant being a worker and noted it was satisfied that the Applicant was a worker for the purposes of the Act.

At the conclusion of the Conference, the Applicant was directed to file by 18 August 2023, her submissions in respect of the Respondents submissions.

The matter was reallocated to my chambers on 21 August 2023 and there was some delay as the Applicant took a period of leave overseas. The Applicant filed submissions on 1 September 2023. On 8 September 2023, directions were issued for the filing of submissions and evidence by the Respondent and the Applicant in Reply.

The Respondent filed on 12 September and the Applicant filed submissions in reply on 15 September 2023.

The parties were asked to file an agreed statement of facts but were unable to reach agreement do so and wrote to my chambers to advise of that on 18 September 2023. There being no agreed issues the matter proceeded to be heard on 28 September 2023.

The matter was listed for hearing on 28 September 2023. In the hearing, the parties’ views were sought as to the possibly of resolving the matter by conciliation. There was no agreement on this point. I then sought the parties’ views as to the best way to consider the matter and having considered the views of the party, the hearing proceeded as a determinative conference.

The Applicant’s Case

The Applicants submission set out her case in some detail which I don’t intend to traverse other than…

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 Paula Denise Gilbard

Details

AGLC: Paula Denise Gilbard [2023] FWC 2507
Case: [2023] FWC 2507
Decision Date: 28 SEPTEMBER 2023

CaseChat Overview and Summary

Paula Denise Gilbard applied for an order under section 789FC of the Fair Work Act 2009 to stop bullying, which she alleged was occurring at her place of voluntary work for the Animal Justice Party Limited. The named respondents, who held various positions within the organisation, denied the allegations of bullying. The application was heard by the Fair Work Commission, with the Deputy President concluding that there was no risk that Ms Gilbard would continue to be bullied at work by the named respondents. Consequently, the Commission did not have the jurisdiction to make an order to stop bullying.

The primary legal issue before the Court was whether there was a risk that Ms Gilbard would continue to be bullied at work by the named respondents. The Act stipulates that the Commission must be satisfied that a worker has been bullied at work by an individual or a group and that there is a risk that the worker will continue to be bullied at work by that individual or group before it has the power to make an order to stop bullying. The onus was on Ms Gilbard to provide evidence that would satisfy the Commission that there was a risk that she would continue to be bullied at work.

The Court concluded that even if it were to assume that the first jurisdictional prerequisite had been satisfied, the second was not met. The information before the Commission did not establish a risk that Ms Gilbard would continue to be bullied at work by the named respondents. This was because the alleged bullying was said to continue if she attended a rally or booth as a member of the public, which did not fall within the definition of "at work" as envisaged by the Act.

The application was dismissed, and the Deputy President concluded that there was no risk that Ms Gilbard would continue to be bullied at work by the named respondents. Therefore, the Commission did not have the jurisdiction to make an order to stop bullying, and the application was dismissed.

Orders