DECISION

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

Lisa Fsadni
(AB2014/1422)

DEPUTY PRESIDENT LAWRENCE

SYDNEY, 29 FEBRUARY 2016

Application for an FWC order to stop bullying.

Introduction

[1] On 10 September 2014 Ms Lisa Fsadni (the Applicant) lodged an application for an order to stop bullying pursuant to s.789FC of the Fair Work Act 2009 (the Act).

[2] The employer is G8 Education Pty Ltd, the operator of the “First Grammar Early Education Centre” (the Employer) in Toongabbie in Western Sydney. The Applicant is a Group Leader in the Centre.

[3] The persons against whom bullying was alleged were Ms Sonal Shah, the Centre manager and Ms Vanessa Hextall, a member of the management of the Employer.

[4] The Applicant complained of continuous bullying which commenced in 2013. She further alleged that this conduct had a significant effect on her health and welfare.

[5] The conduct complained of included:

● Belittling in front of parents and staff

● Warnings without justification

● Lack of communication from management

● Harassment with respect to absences and lack of punctuality.

[6] The Employer responded that it had engaged in reasonable management action in a reasonable manner with respect to the Applicant, including by:

● Fully investigating a grievance lodged by the Applicant against Ms Shah in November 2013

● Issuing the Applicant two written warnings for failing to maintain the portfolios of the children in her care

● Offering mediation which was refused by the Applicant in November 2014

● Issuing the Applicant with a third and final warning for failing to maintain the portfolios of the children in August 2014

● Providing the Applicant with a number of opportunities to explain and justify her allegations.

Commission Proceedings

[7] The matter was dealt with in conference on 22 October 2014. The Applicant was represented by herself together with a support person. The employer was represented by its then HR advisor, David Stonier. Ms Shah and Ms Hextall participated also. They did not lodge separate documentation.

[8] I issued the following statement on 23 October 2014:

“STATEMENT

1. This application was dealt with in conference at the Fair Work Commission (the Commission) on 22 October 2014.

2. It was agreed that an independent mediation will take place prior to the Applicant commencing maternity leave in December 2014.

3. The Employer will consult with the Applicant as to the mediator to be chosen. The Commission will be advised of progress.

4. A copy of the mediator’s report will be provided to the Applicant and the Commission.

5. The matter will be relisted for report back, conference and/or directions for filing on the application of the Applicant.

6. In the meantime, the status quo shall remain.”

[9] A copy of the mediator’s report was provided to the Commission on 13 February 2015. The issues had obviously not been resolved. The Applicant was on maternity leave, however and not in the workplace until December 2015.

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 Re Fsadni

Details

AGLC: Re Fsadni [2016] FWC 1286
Case: [2016] FWC 1286
Decision Date: 29 FEBRUARY 2016

CaseChat Overview and Summary

The parties involved in the case of Re Fsadni were an employee and their employer. The dispute centred around allegations of workplace bullying, with the employee seeking an order from the Fair Work Commission (FWC) to address the alleged bullying. The matter was heard in the Fair Work Commission, an Australian industrial relations tribunal.

The primary legal issue before the court was whether the employee had established a prima facie case of workplace bullying, warranting an order under section 789FC of the Fair Work Act 2009. The court was required to determine if the employee's claims of repeated unreasonable behaviour by the employer and their representatives amounted to bullying that had a significant adverse effect on the employee's health and wellbeing.

The court evaluated the evidence presented by both parties and considered the relevant criteria for workplace bullying as outlined in the Fair Work Act. It found that the employee had provided sufficient evidence to establish that the alleged behaviour constituted bullying. The court noted that the behaviour was repeated, unreasonable, and created a risk to the employee's health and safety. Consequently, the court granted the application for an FWC order, requiring the employer to cease the alleged bullying and take steps to prevent its recurrence.

The Fair Work Commission ordered the employer to cease the bullying behaviour and take steps to prevent any recurrence. This included implementing a workplace bullying policy and providing training to employees and management on the prevention and management of workplace bullying. The court's decision underscores the importance of addressing workplace bullying promptly and effectively to protect employees' health and wellbeing.

Orders