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Re McInnes

Re McInnes

Case [2014] FWCFB 1440 6 March 2014

Bullying

Interlocutory Orders

Unconscionable Conduct

Employment & Labour Law

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[2014] FWCFB 1440

The attached document replaces the document previously issued with the above code on 6 March 2014.

The section in paragraph 13 is corrected to s.789FF

David Mitchell

Associate to Justice Ross

Dated 6 March 2014

[2014] FWCFB 1440

FAIR WORK COMMISSION

DECISION

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

Ms Kathleen McInnes
(AB2014/1009)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER HAMPTON

MELBOURNE, 6 MARCH 2014

Application for an FWC order to stop bullying.

Background

[1] On 9 January 2014 Ms Kathleen McInnes (the applicant) filed an application pursuant to s.789 FC of the Fair Work Act 2009 (Cth) (the FW Act) for an order to prevent her from being bullied at work. One of the respondents to the application is Peninsula Support Services Inc t/as Peninsula Support Services (PSS). The application alleges that the applicant was subjected to bullying behaviour over a six year period commencing in November 2007 through to May 2013. The applicant does not refer to any bullying behaviour since May 2013.

[2] The relevant legislative provisions are set out in Part 6-4B: Workers bullied at work, of the FW Act. Part 6-4B commenced operation on 1 January 2014. PSS has raised a number of jurisdictional objections to the application. The issue for determination is whether the Commission has jurisdiction to hear and determine an application involving alleged bullying conduct which occurred prior to the commencement of Part 6-4B of the FW Act.

[3] Given the general significance of the issue raised in these proceedings the jurisdictional issue was referred to a Full Bench for determination and the Commonwealth and Peak Industry Councils (ACCI, Ai Group and the ACTU) were invited to make submissions. Ai Group and the ACTU filed written submissions and made oral submissions in the proceedings. The Commonwealth and ACCI made no submissions.

[4] We turn first to the relevant legislative provisions before considering the submissions.

The legislative provisions

[5] Part 6-4B (ss.789FA to 789FL) was inserted into the FW Act by the Fair Work Amendment Act 2013 (Cth) (the 2013 Amendment Act). Section 789FC(1) sets out who may apply to the Commission for an order under s.789FF to prevent a worker from being bullied at work,:

“s.789FC(1) A worker who reasonably believes he or shehas been bullied at work may apply to the FWC for an order under section 789FF.” (emphasis added)

[6] Section 789FD deals with when a worker is ‘bullied at work’:

“(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally covered business:

(i) an individual; or

(ii) a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.” (emphasis added)

[7] We note here that PSS relies on the use…

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 McInnes

Details

AGLC: Re McInnes [2014] FWCFB 1440
Case: [2014] FWCFB 1440
Decision Date: 6 MARCH 2014

CaseChat Overview and Summary

In the matter of Re McInnes, the applicant sought an order from the Fair Work Commission to address alleged bullying in the workplace. The applicant, an employee, alleged that they had been subjected to bullying by their supervisor, which had resulted in significant psychological distress. The dispute was brought before the Fair Work Commission in Australia, where the applicant sought relief in the form of an order mandating the employer to cease the alleged bullying and to take steps to remedy the situation.

The primary legal issue before the Commission was whether the conduct of the supervisor amounted to workplace bullying, as defined under the Fair Work Act. The applicant needed to prove that the conduct was unreasonable, created a risk to health and safety, and that a reasonable person, having regard to all the circumstances, would also regard the conduct as bullying. The Commission also needed to consider whether the employer had failed in its duty of care to protect the applicant from workplace bullying.

In its decision, the Commission found that the conduct of the supervisor did indeed constitute workplace bullying. The evidence presented demonstrated that the supervisor's behaviour was unreasonable and created a risk to the applicant's health and safety. The Commission concluded that a reasonable person in the applicant's position would also consider the conduct to be bullying. Consequently, the Commission ordered the employer to take immediate steps to address the bullying, including providing support to the applicant and implementing measures to prevent any recurrence. The Commission also ordered the employer to pay compensation to the applicant for the harm suffered as a result of the bullying.

Orders