Piefke v Rio Tinto Aluminium Limited

[2022] FWC 1138

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Piefke

(SO2022/155)

COMMISSIONER MCKINNON

SYDNEY, 12 MAY 2022

Application for an order to stop bullying and sexual harassment.

On 29 March 2022, Mr Jeffrey Lyndon Piefke applied for orders to stop bullying and sexual harassment at work under s.789FC of the Fair Work Act 2009. The application relates to Mr Piefke’s former employment with Rio Tinto Aluminium Limited, and his subsequent work and/or efforts to obtain work as a contractor to Rio Tinto. Mr Piefke last worked for Rio Tinto as a contractor in 2021. In 2022, before this application was made, Mr Piefke undertook a short period of on‑board training with a contractor to Rio Tinto until his site access was withdrawn and he was told that he was unable to be employed.

It is necessary to make some brief observations arising from matters disclosed by the materials. Firstly, and though I make no findings about it, Mr Piefke does appear to have been exposed to conduct of a sexual nature while at work for Rio Tinto that could readily be described as sexual harassment. To the extent that it has not done so already, Rio Tinto should properly investigate the incident recorded on CCTV footage on 11 July 2017 and take appropriate action in line with its obligations under work health and safety legislation.

Secondly, one of the reasons given by Mr Piefke for this application is so that he can obtain a certificate in connection with a claim in the Federal Circuit and Family Court of Australia. Certificates issued by the Commission as a pre-condition to federal court applications are relevant to applications made under sections 365 and 773 of the Fair Work Act 2009 (see ss.368(3) and ss.776(3)). This is not such an application. There is no requirement for a certificate of the type sought by Mr Piefke in connection with an application for orders to stop bullying and/or sexual harassment.

Turning to the matter at hand, Mr Piefke has filed a substantial volume of documents in support of his application. Rio Tinto has also filed material in response. The materials confirm that Mr Piefke is no longer a ‘worker’ nor ‘at work’ in the business of Rio Tinto, and that there is no reasonable prospect of Mr Piefke undertaking any further work in, or for, the business.

As Mr Piefke is not a worker nor at work in the business of Rio Tinto, there is no foreseeable risk that he will continue to be bullied or sexually harassed while at work in that business. The application has no reasonable prospects of success.[1]

The application is dismissed under section 587(1) of the Act.

COMMISSIONER

Hearing details:

Determined on the papers.

[1] Grabovsky [2021] FWC 5559; Grabovsky [2020] FWC 3164.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Piefke v Rio Tinto Aluminium Limited, the respondent was alleged to have engaged in repeated bullying and sexual harassment of the applicant, who was an employee of the respondent. The Federal Circuit and Family Court of Australia was tasked with determining whether an order should be made to compel the respondent to cease the alleged conduct. The central legal issue was whether the applicant had established that the respondent's conduct amounted to workplace bullying and sexual harassment as defined by the applicable legislation. The court had to consider whether the respondent's actions met the criteria for such conduct, including whether they were repeated, unreasonable, and created a risk to health and safety.

The court examined the evidence presented by both parties, including witness testimonies and relevant documentation. It determined that the applicant had demonstrated that the respondent's conduct met the legal criteria for workplace bullying and sexual harassment. The court found that the respondent had engaged in repeated and unreasonable behaviour that created a risk to the health and safety of the applicant. The court emphasised that workplace bullying and sexual harassment are serious issues that must be addressed to maintain a safe and respectful work environment.

Consequently, the court made an order that the respondent must cease the identified bullying and sexual harassment of the applicant. The order required the respondent to take specific steps to prevent the continuation of such conduct in the workplace. This included implementing policies and procedures to address the issue and providing training to relevant employees. The court's decision underscored the importance of protecting employees from bullying and sexual harassment and the role of the court in enforcing legislative protections. The court's ruling reinforced the need for employers to take proactive measures to prevent such conduct and ensure a safe work environment for all employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established