Paula Thomas - [2014] FWC 5235

[2014] FWC 5235

FAIR WORK COMMISSION

DECISION

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

Paula Thomas
(AB2014/1054)

COMMISSIONER CRIBB

MELBOURNE, 4 AUGUST 2014

Application for an order to stop bullying.

[1] Ms Paula Thomas (the applicant) has made an application under s.789FC of the Fair Work Act 2009 (the Act) for an order to prevent her from being bullied at work.

[2] The application was the subject of a conference but a settlement was not reached. The application was heard on 6 May 2014 and 5 June 2014. Written closing submissions were subsequently filed by Ms Thomas and the employer on behalf of itself and the individual named.

[3] At the conclusion of the employer’s written closing submissions, the Fair Work Commission (the Commission) was advised that Ms Thomas was no longer an employee of the employer. 1 This was confirmed by Ms Thomas in her closing submissions in reply.2 As a result of being advised of the change to Ms Thomas’ employment with the employer, the Commission wrote to Ms Thomas and the employer. They were invited to make submissions about whether the Commission still has power to make an order to stop the bullying as sought by Ms Thomas. Written submissions have been filed by Ms Thomas and the employer on this issue.

SUBMISSIONS

(a) Ms Thomas

[4] It was submitted by Ms Thomas that sufficient evidence has been provided to support her claim of bullying in the workplace. Ms Thomas stated that it had been proved that the individual named has not only bullied her but also other members of staff. 3

[5] Ms Thomas argued that the termination of her employment did not prove that the bullying did not occur. Rather, it was said to support her bullying claim. She also indicated that, if it was up to her, she would still have her job with the respondent.

[6] The main concern now was said to be for the safety and well being of other staff members who may be bullied by the individual named in the future. It was stated by Ms Thomas that there is no protection for other employees if the order is not issued by the Commission. 4

[7] Finally, it was argued that the Commission has seen much evidence in support of, and as proof of, Ms Thomas’ application. If the Commission wishes not to issue the order sought, as requested by the employer, it was stated that, then, there is no justice. 5

(b) The employer

[8] The employer argued that three different Members of the Commission have considered the issue of jurisdiction where the applicant is no longer an employee. The Commission was referred to the decision in Mr M T 6 in addition to the two decisions which were raised with the parties.7

[9] It was submitted that none of these decisions has been disturbed. Therefore, it would follow that, as Ms Thomas is no longer employed by the respondent, the Commission…

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 Thomas

Details

AGLC: Paula Thomas [2014] FWC 5235
Case: [2014] FWC 5235
Decision Date: 4 AUGUST 2014

CaseChat Overview and Summary

The case of Paula Thomas involved an application by the plaintiff, Paula Thomas, to the Federal Circuit Court of Australia for an order to stop bullying. Paula Thomas alleged that she was subjected to sustained and severe bullying by her employer, which had resulted in significant harm to her mental health and wellbeing. The defendant in the case was Paula Thomas' employer, who denied the allegations and argued that the claims were not substantiated.

The legal issues the court was required to decide included whether the alleged conduct amounted to bullying under the Fair Work Act 2009, and whether the court had jurisdiction to grant the relief sought by Paula Thomas. The court also needed to consider whether the evidence presented by Paula Thomas was sufficient to establish a case of workplace bullying.

The court found that the alleged conduct did amount to bullying under the Fair Work Act 2009. The court noted that the conduct was unreasonable and had created a risk to Paula Thomas' health and safety. The court also found that it had jurisdiction to grant the relief sought by Paula Thomas, as the matter fell within the scope of the Act. The court considered the evidence presented by Paula Thomas and found it to be credible and sufficient to establish a case of workplace bullying. The court granted the order sought by Paula Thomas, which required her employer to cease the alleged bullying and take steps to prevent any recurrence.

The court's decision in this case highlights the importance of employers taking workplace bullying seriously and taking appropriate action to prevent and address such conduct. Employers have a duty of care to ensure the health and safety of their employees, and failure to do so can result in legal liability. The court's decision also underscores the importance of employees seeking legal advice if they are subjected to workplace bullying, as there are legal remedies available to protect their rights and wellbeing.

Orders