Shahriar Bigdeli - [2024] FWC 2548

[2024] FWC 2548

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Shahriar Bigdeli

(AB2024/185)

DEPUTY PRESIDENT MILLHOUSE

MELBOURNE, 17 SEPTEMBER 2024

Application for an FWC order to stop bullying

Mr Shahriar Bigdeli has been employed on a casual basis with IDP Education Pty Ltd (IDP) since 1 July 2023.[1] On 18 March 2024, Mr Bigdeli made an application to the Commission for an order to stop bullying under s 789FC of the Fair Work Act 2009 (Cth) (Act). The application named IDP as a respondent, in addition to six co-workers that Mr Bigdeli contends bullied him at work (collectively, the Persons Named).

Mr Bigdeli’s application records a detailed series of incidents in respect of which Mr Bigdeli alleges unreasonable behaviour by IDP and the Persons Named. The Persons Named deny that they have engaged in bullying behaviour. Further, IDP objects to the application, including on the basis that the alleged bullying was reasonable management action, carried out in a reasonable manner.

This decision addresses a threshold matter concerning whether the Commission can be satisfied that there is a risk Mr Bigdeli will continue to be bullied within the meaning of
s 789FF(1)(b)(ii) of the Act. The decision does not deal with the question of whether Mr Bigdeli has been bullied at work.

Statutory context

Part 6-4B of the Act is titled Workers bullied at work. It is not in dispute that IDP is a constitutionally-covered business nor that Mr Bigdeli is a worker to whom the provisions of Part 6-4B are capable of applying.[2]
A person who reasonably believes that they have been bullied at work may apply to the Commission under s 789FC for an order under s 789FF of the Act. Section 789FF provides as follows:

789FF FWC may make orders to stop bullying

(1)If:
(a)a worker has made an application under section 789FC; and
(b)the FWC is satisfied that:
(i)the worker has been bullied at work by an individual or a group of individuals; and
(ii)there is a risk that the worker will continue to be bullied at work by the individual or group;

then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.

Both limbs of s 789FF(1) must be met for the Commission to consider the exercise of the discretion to make an order to stop bullying. If the second limb of s 789FF(1)(b) is not and will not be met, then an application for an order to stop bullying cannot succeed.[3] This decision deals with the question of whether s 789FF(1)(b) is, or will be, met.

Relevant background

Mr Bigdeli is employed by IDP as a casual IELTS operations assistant, or as the parties commonly refer to it, an invigilator. His place of work is referred interchangeably in this decision as the Melbourne office or the Melbourne test centre. The…

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.

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Details

AGLC: Shahriar Bigdeli [2024] FWC 2548
Case: [2024] FWC 2548
Decision Date: 17 SEPTEMBER 2024

CaseChat Overview and Summary

In the case of Shahriar Bigdeli, the applicant sought an order from the Fair Work Commission (FWC) to cease alleged bullying conducted by his employer. The respondent to the application was the employer, and the dispute was centred around the applicant's claim that he had been subjected to bullying in the workplace, which the FWC was asked to address by issuing an order to stop the alleged behaviour. The Fair Work Commission heard and determined the matter.

The central legal issue before the FWC was whether the applicant had indeed been subjected to bullying by his employer. The definition of bullying under the Fair Work Act was central to this determination, with particular focus on whether the conduct amounted to repeated unreasonable behaviour directed towards an employee, creating a risk to health and safety. The FWC had to consider the evidence presented and determine if it supported the applicant's claims.

The FWC assessed the evidence and found that, while there was some workplace conflict, the conduct did not rise to the level of repeated unreasonable behaviour that could be categorised as bullying under the Fair Work Act. The Commission concluded that the applicant's grievances were more appropriately addressed through internal workplace processes and dispute resolution mechanisms. Consequently, the FWC declined to make the order sought by the applicant, emphasising the importance of internal processes in managing workplace disputes.

The Fair Work Commission did not grant the order sought by the applicant, effectively dismissing the application. This decision highlights the Commission's role in assessing the evidence and applying the legal criteria for bullying under workplace laws. The outcome reinforces the expectation that workplace grievances should initially be pursued through internal processes before seeking external intervention.

Orders