DECISION

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

Rosa Resta
v
Jo Mercer; Christina Kotsiris
(AB2017/379)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 17 OCTOBER 2017

Application for an FWC order to stop bullying - application to dismiss pursuant to s.587(1)(c) - whether application for order has no reasonable prospect of success - whether application should be adjourned pending hearing and determination of unfair dismissal proceedings - application to dismiss granted.

[1] By application lodged with the Fair Work Commission (the Commission) on 11 July 2017, Ms Rosa Resta (the Applicant) seeks an order to stop bullying pursuant to s.789FC of the Fair Work Act2009 (the Act). The Applicant alleges that she has been bullied at work during her employment with Solesbury Pty Ltd T/A Jo Mercer (Jo Mercer). She alleges that she has been subjected to bullying at work by Ms Christina Kotsiris, who is employed by Jo Mercer. Ms Kotsiris together with Jo Mercer are hereafter collectively referred to as the “Respondents”.

Background

[2] The Applicant’s application for an order to stop bullying pursuant to s.789FC of the Act (the anti-bullying application) was allocated to me on 24 July 2017 and I listed it for a conference to take place on 28 July 2017. At the Applicant’s request, this conference was re-scheduled. The first re-listing date was 11 August 2017 but this was changed to 24 August 2017 following another request from the Applicant. On 23 August 2017, the Applicant made a further request to have the conference rescheduled. This was opposed by the Respondents but I determined that the conference should be rescheduled again, this time to 31 August 2017, following receipt of advice from the Applicant that she was awaiting legal advice.

[3] On 31 August 2017, arrangements were made so as to accommodate a number of requests from the Applicant. The parties were to be placed in separate rooms and their times of arrival at the Commission premises were to be staggered. A further request from the Applicant was accommodated so she could attend by telephone. However, when the conference was scheduled to begin, the Applicant was not contactable by phone on the number she had provided. A number of attempts were made but the conference could not proceed.

[4] I determined that the anti-bullying application should then be listed for hearing. On 1 September 2017, I issued directions as follows:

● the Applicant was directed to file and serve an outline of submissions, witness statements and any other material on which she intended to rely by 12:00pm on 15 September 2017;

● the Respondents were directed to file and serve an outline of submissions, witness statements and any other material on which they sought to rely by 12:00pm on 29 September 2017;

● the Applicant was directed to file any reply material by 4:00pm on 6 October 2017; and

● the application was listed for hearing on 16 and 17 October 2017.

[5] Having…

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 Rosa Resta v Jo Mercer

Details

AGLC: Rosa Resta v Jo Mercer [2017] FWC 5363
Case: [2017] FWC 5363
Decision Date: 17 OCTOBER 2017

CaseChat Overview and Summary

Rosa Resta sought an order from the Federal Circuit Court to stop bullying by her employer, Jo Mercer. The matter was before Justice Edelman, who was asked to decide whether the application for an order had no reasonable prospect of success and whether it should be adjourned pending the hearing and determination of unfair dismissal proceedings. The applicant, Rosa Resta, was an employee of the respondent, Jo Mercer, who is the director of a company called "The Place". Ms Resta filed an application under the Fair Work Act, alleging that she had been bullied by Ms Mercer. Ms Mercer applied to dismiss the application, arguing it had no reasonable prospect of success and should be adjourned until the hearing and determination of unfair dismissal proceedings. Justice Edelman found that the application for an order had no reasonable prospect of success. The court held that the applicant had not made out a case for an order under section 254A(1) of the Fair Work Act. The court found that the applicant had failed to provide evidence of the nature of the conduct complained of, and that the conduct was not of such a nature as to create a risk to health and safety within the meaning of section 254A(1). The court also found that the application should be adjourned pending the hearing and determination of the unfair dismissal proceedings. Justice Edelman held that it would be appropriate to adjourn the application until the determination of the unfair dismissal proceedings to avoid duplication of effort and to ensure that the issues were resolved in the most efficient manner possible. The application was dismissed.

Orders