DECISION

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

Paula Taylor
(AB2018/558)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 21 MARCH 2019

Application for an FWC order to stop bullying – worker employed in family business - matrimonial dispute between business owners – no single employer position - bullying conduct established – orders necessary to prevent future bullying – orders made and published

[1] On 10 September 2018 Paula Taylor (Mrs Taylor, formerly Paula Garrard-Talbot) made an application (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). The application specified Charmaine Joy Hoad (Mrs Hoad) as a contact person for the employer.

[2] Mrs Taylor was and remains employed by Hoad Water Cartage Pty Ltd on a part time basis as Finance and Administration Manager and Human Resources Manager.

[3] Hoad Water Cartage is a private family company jointly owned by husband and wife William Mark Hoad and Charmaine Joy Hoad. Hoad Water Cartage is in the business of carting water in and around South Australia. It commenced operations in approximately 1988. The business is conducted from a matrimonial property at Carey Gully in the Adelaide Hills. On that property is a homestead and, separately portable offices, trucks, related business equipment and personal assets. In 2015 Hoad Water Cartage purchased Andy’s Water Transport. Thereafter Hoad Water Cartage operated its business from Carey Gully under dual trading names: Hoad Water Cartage and Andy’s Water. A separate small manufacturing business Optiblue Pty Ltd (Optiblue) is also operated by Mr and Mrs Hoad but owned by Mr Hoad.

[4] Mrs Taylor’s application was filed and dealt with by the Commission in the shadow of an acrimonious matrimonial dispute between Mr and Mrs Hoad which remains before the Federal Circuit Court of Australia (the Court).

[5] The application was also dealt with in the context of an application filed two weeks earlier (31 August 2018) by Charmaine Joy Hoad in which Mrs Hoad sought anti-bullying orders against William Mark Hoad (Mrs Hoad’s application) 2. A decision in that matter is reserved.

[6] I issued directions on Mrs Taylor’s application on 27 September 2018, 1 November 2018, 15 November 2018, 28 November 2018, 3 December 2018 and 25 January 2019.

[7] I directed 3 that this application and Mrs Hoad’s application be conciliated concurrently. I conducted conferences on the applications on 5 October and 31 October 2018. On my recommendation (agreed to by Mrs Taylor, Mr Hoad and Mrs Hoad) Commissioner Platt conducted member assisted conciliation and mediation on 23 November 2018, 27 November 2018 and 19 December 2018.

[8] Notwithstanding these processes, Mrs Taylor’s application did not resolve 4. Mrs Taylor then indicated an intention to proceed to arbitration. I…

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 1794
Case: [2019] FWC 1794
Decision Date: 21 MARCH 2019

CaseChat Overview and Summary

In the matter of Paula Taylor, the Fair Work Commission (FWC) was called upon to address allegations of workplace bullying. Paula Taylor, the applicant, sought an order under the Fair Work Act to prevent bullying by her employer, who is also the co-owner of the family business. The dispute arose from a complex situation where the family business was also the subject of a matrimonial dispute between the business owners. This unique context created a complicated employment relationship, as there was no clear single employer position within the business.

The primary legal issue before the FWC was whether it had the jurisdiction to intervene in the workplace bullying matter, given the intricate family and business dynamics. Additionally, the Commission needed to determine if the conduct in question constituted bullying under the Act. The court had to consider whether the established bullying conduct warranted the issuance of orders to prevent future incidents.

The FWC found that it had jurisdiction to hear the matter, as the family business constituted an employer-employee relationship. The Commission also concluded that the conduct was indeed bullying under the Fair Work Act. Given the established bullying and the need to protect Paula Taylor from further harm, the FWC decided that orders were necessary to prevent future bullying. Consequently, the FWC made the orders sought by Paula Taylor, which were also published to serve as a deterrent against similar conduct in the future.

Orders