Re SB

Case [2014] FWC 2104 12 May 2014

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[2014] FWC 2104

FAIR WORK COMMISSION

DECISION

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

Ms SB
(AB2014/1035)

COMMISSIONER HAMPTON

ADELAIDE, 12 MAY 2014

Application for an FWC order to stop bullying - Manager alleging that employees supervised were bullying as a result of them making bullying allegations against her and other unreasonable conduct - alleged lack of management support - whether individuals repeatedly behaving unreasonably so as to create a risk to health and safety - whether application taken simply as a response to bullying allegations being made against applicant - role of external investigation discussed - evidence assessed - some conduct found bordering on unreasonable but not sufficient to meet the statutory definition - no basis to make an order - application dismissed.

1. Introduction and background

[1] Ms SB (the applicant) has made an application for an order to stop bullying under s.789FD of the Fair Work Act 2009 (the FW Act). The application alleges bullying conduct by another employee, Ms CC, and others who are or were in her workplace. The workplace concerned is conducted by her employer (the employer).

[2] The application was subject to a hearing, which was conducted in private as permitted by s.593(3)(a) of the FW Act. Given the nature of the matters considered in this application, the fact that it relates to ongoing employment relationships and my findings, I have also “anonymised” the names of the parties and individuals in this decision. 1

[3] The applicant represented herself in this matter. The employer and CC were represented by an employee of a Registered Employer Organisation. 2 Given these circumstances, I provided appropriate assistance and latitude in the presentation of the applicant’s case; particularly to ensure that there was a common understanding of the issues in dispute and to ensure that, as far as possible, the disputed matters were raised with relevant witnesses.3 I also took steps during the examination of witnesses to inform myself about relevant matters. I must however determine the application based upon evidence that is before the Commission.

[4] I also note that after the hearing of this matter, all parties sought that the decision be deferred to permit further private discussions to take place. These proceeded before another Member of the Commission. The parties in due course requested that I make a determination of this application.

[5] The applicant commenced employment with the employer as a Delivery Support Team Leader in mid June 2013 and was in effect the manager of a team of Delivery Support Officers (DSOs) who were based at one of the two operational locations of the employer; namely location C and location B.

[6] CC, and the other employee directly cited in the application as having behaved unreasonably, are or were DSOs in the team reporting to the applicant.

[7] One of the former DSOs, Ms NP, made a bullying complaint against the applicant in August 2013. An investigation by the employer found the complaint to be unsubstantiated.…

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 SB

Details

AGLC: Re SB [2014] FWC 2104
Case: [2014] FWC 2104
Decision Date: 12 MAY 2014

CaseChat Overview and Summary

In the Fair Work Commission, the matter of Re SB involved an application by a manager against several of her supervised employees. The manager alleged that the employees were engaging in bullying and unreasonable conduct towards her and others. This included retaliatory behaviour in response to previous bullying allegations made against the employees. The manager also claimed that she faced a lack of support from higher management.

The central legal issues before the Commission were whether the employees' conduct constituted bullying under the Fair Work Act and whether it created a risk to health and safety. The manager argued that the employees' behaviour, including the retaliatory conduct, repeatedly exhibited unreasonableness, satisfying the statutory criteria for workplace bullying. The Commission had to determine whether the application was merely a response to the employees' allegations of bullying against the manager, and if so, whether this affected the assessment of the conduct.

The Commission carefully evaluated the evidence presented. It considered the role of an external investigation, which had already examined the allegations. The Commission found that while some of the conduct exhibited by the employees was on the borderline of unreasonableness, it did not meet the statutory definition of bullying. The Commission concluded that the application was not substantiated as a response to the employees' allegations, and therefore, there was no basis to make an order. The application was dismissed.

Orders