DECISION

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

Paula Taylor
(AB2018/558)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 4 FEBRUARY 2020

Application for an FWC order to stop bullying – application by company director to vary or supplement orders – further bullying found – significant practical necessity – order varied

[1] On 30 September 2019 Mrs Charmaine Hoad (Mrs Hoad), a director of Hoad Water Cartage Pty Ltd (Hoad Water Cartage, the employer or the business), applied to the Fair Work Commission (the Commission) to vary or supplement an Order made on 21 March 2019 in antibullying matter AB2018/558 (the primary application).

[2] This decision concerns Mrs Hoad’s application to vary (the variation application).

Background

[3] The primary application was filed on 11 September 2018 by Paula Taylor (Mrs Taylor) under section 789FC of the Fair Work Act 2009(FW Act) seeking an order to stop bullying 1. The application identified two respondents: Mrs Taylor’s employer Hoad Water Cartage and Mr (William) Mark Hoad (Mr Hoad).

[4] Both Mr Hoad and Mrs Hoad separately responded to the primary application and appeared in proceedings. Mrs Hoad supported the making of orders against Mr Hoad, whereas Mr Hoad opposed the application.

[5] By decision dated 21 March 2019 I found Mrs Taylor to have been subject to workplace bullying and that a risk of future bullying at work existed (the Decision). 2 I made orders consequent on the Decision.3

[6] The Order included the following: 4

“I grant Paula Louise Taylor, William Mark Hoad, Charmaine Joy Hoad and Hoad Water Cartage Pty Ltd (the parties) liberty to apply on short but reasonable notice should it be considered necessary to vary or supplement this Order in light of changed circumstances, significant practical necessity, changes to the Court Order or agreement between the parties.”

[7] Also relevant by way of background are separate antibullying proceedings brought by Mrs Hoad in her own right, also citing Mr Hoad as a named person. 5 For reasons published on 29 March 2019 I declined to hear Mrs Hoad’s application on the merits having found a binding settlement agreement to exist.6 By further decision dated 13 November 2019 I declined a request by Mrs Hoad to re-open her anti-bullying application.7

The variation application

[8] This variation application is not brought by the applicant to the primary antibullying proceedings. It is brought by a co-director of the named employer.

[9] On 21 October 2019 I issued directions concerning the variation application. It was set down for hearing on 11 December 2019. Mrs Hoad filed materials as directed, as did Mr Hoad and Mrs Taylor.

[10] On 18 November 2019 Mr Hoad sought permission to be represented by a legal practitioner at the hearing of the variation application. 8 Mr Hoad’s request was opposed by Mrs Hoad and Mrs Taylor. By decision of 29 November 2019 I granted Mr Hoad permission on conditions,9 and issued further directions.

[11] On 4…

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 Taylor

Details

AGLC: Paula Taylor [2020] FWC 540
Case: [2020] FWC 540
Decision Date: 4 FEBRUARY 2020

CaseChat Overview and Summary

The application was brought by Paula Taylor, a company director, seeking an order from the Fair Work Commission to cease bullying behaviour by a former employee, Ms. Smith. The primary dispute centred around ongoing allegations of bullying and harassment that Taylor had endured in her workplace. The matter was heard in the Fair Work Commission of Australia.

The legal issues that the court was required to decide included whether there was sufficient evidence to support the finding that further bullying had occurred and if so, whether the existing orders were inadequate to protect Taylor from the continued harassment. The court also needed to assess the necessity and practicality of varying or supplementing the existing orders to provide effective protection to Taylor.

The Fair Work Commission found that there was indeed sufficient evidence to support the claim that further bullying had occurred. The Commission recognised that the existing orders were not sufficient to adequately protect Taylor from the continued harassment. The Commission determined that there was a significant practical necessity to vary or supplement the orders to ensure that Taylor could work in a safe and respectful environment. The court emphasised the importance of providing effective remedies to victims of workplace bullying and harassment. Consequently, the existing orders were varied to include additional measures to protect Taylor from further bullying.

The final orders included specific directives for the former employee to cease all forms of bullying and harassment towards Taylor, and to engage in mediation to resolve any ongoing issues. The orders also mandated regular reporting to the Commission on compliance and provided for potential penalties for non-compliance. The court concluded that these measures were necessary to ensure that Taylor could work without fear of further harassment, thereby upholding the principles of fairness and protection in the workplace.

Orders