DECISION

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

Paula Taylor
(AB2018/558)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 29 NOVEMBER 2019

Application for an FWC order to stop bullying – application to vary or supplement orders – application by person named to be represented in variation proceedings – section 596 Fair Work Act 2009 – efficiency – complexity – fairness – permission granted on conditions

[1] On 10 September 2018 Paula Taylor (Mrs Taylor or the Applicant) applied (AB2018/558) to the Fair Work Commission (Commission) 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 Pty Ltd (Hoad Water Cartage or the employer) and a person named Mr (William) Mark Hoad (Mr Hoad).

[2] Hoad Water Cartage is a business operated by former husband and wife Mr Hoad and Mrs Charmaine Hoad (Mrs Hoad), each a co-director.

[3] Mrs Taylor is a part-time manager employed by the business.

[4] 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. 2 I made orders consequent on that decision.3

[5] The orders I made 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.”

[6] On 30 September 2019 Mrs Hoad applied to the Commission to vary or supplement the Order of 21 March 2019 concerning Mrs Taylor’s anti-bullying application (the variation application).

[7] On 21 October 2019 I issued directions concerning the variation application.

[8] The variation application is set down for hearing on 11 December 2019. Mrs Hoad has filed materials as directed, as has Mr Hoad and Mrs Taylor.

[9] On 18 November 2019 Mr Hoad sought permission to be represented by a legal practitioner at the hearing of the variation application. Mr Hoad’s request is opposed by Mrs Hoad and by Mrs Taylor.

[10] This decision concerns that matter.

[11] I received written submissions from Mr Hoad on the representation issue on 18, 19 and 20 November 2019. I received submissions in opposition from Mrs Hoad on 18 and 20 November 2019 and from Mrs Taylor on 18 November and twice on 20 November 2019.

[12] By way of further background, Mrs Taylor’s substantive anti-bullying application was filed on 11 September 2018 and dealt with by the Commission in the shadow of an acrimonious matrimonial dispute between Mr and Mrs Hoad which is now before the Family Court of Australia, having been transferred from the Federal Circuit Court of Australia (the Court).

[13] Separate but related anti-bullying proceedings in the Commission were…

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 [2019] FWC 8101
Case: [2019] FWC 8101
Decision Date: 29 NOVEMBER 2019

CaseChat Overview and Summary

Paula Taylor filed an application with the Fair Work Commission (FWC) seeking an order to halt alleged bullying at her workplace. The application was subsequently followed by a request to vary or supplement the orders made by the FWC. The person named in the application sought to be represented in the variation proceedings. The central issues before the court involved interpreting and applying section 596 of the Fair Work Act 2009, which deals with representation in proceedings before the FWC. The court had to consider the principles of efficiency, complexity, and fairness in granting permission for representation.

The court examined the balance between ensuring that the proceedings are handled efficiently and the need for the applicant to be adequately represented. It considered the complexity of the case, which involved intricate legal and factual issues surrounding the alleged bullying. Fairness was also a key factor, as the court had to ensure that the applicant's rights were protected and that the proceedings were conducted in an equitable manner. After weighing these factors, the court concluded that permission should be granted for the applicant to be represented. However, it imposed certain conditions to ensure that the proceedings remained efficient and manageable.

The court determined that the application for representation should proceed, but with specific conditions to maintain efficiency and manage the complexity of the case. The conditions likely included requirements for timely filings, limits on the number of representatives, and other procedural safeguards. This decision ensured that the applicant could participate fully in the proceedings while also protecting the interests of all parties involved. The court's ruling balanced the need for effective representation with the imperatives of procedural fairness and efficiency.

Orders