DECISION

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

Shane Richardson
(AB2015/546)

DEPUTY PRESIDENT LAWRENCE

SYDNEY, 14 SEPTEMBER 2016

Application for an FWC order to stop bullying.

[1] On 4 September 2015 Mr Shane Richardson (the Applicant) lodged an application for an order to stop bullying pursuant to s.789FC of the Fair Work Act 009 (the Act).

[2] The employer is Impact Care Solutions Ltd T/A Impact Youth Services (the Employer) which is a youth welfare organisation operating in the western suburbs of Sydney.

[3] The Applicant was employed to manage a residential care facility for youth in the out-of-home care system for the Employer which runs it on behalf of the New South Wales Department of Family and Community Services.

[4] The Applicant complained of bullying by Mr Patrick Gosselin, the Chief Executive Officer of the Employer and Ms Deb Munro, the General Manager.

[5] The Applicant says that he alerted both Mr Gosselin and Ms Munro to certain issues and dangers for the youth residents. He also complained about excessive workload and the actions of some other staff.

[6] As a result he says that he was the subject of verbal harassment, unwarranted criticism by management and general discrimination in the workplace. It is alleged that this conduct has had a significant effect on the Applicant’s health and safety. The Applicant has been absent from work on leave since before the application was lodged. It appears that his workers compensation claim has been accepted.

[7] The F73 responses were lodged by Mr Gosselin and Ms Munro. They deny that there has been any bullying conduct or any complaint about bullying conduct. To the extent that the Applicant complained about some activities/issues within the Employer’s operations, they should be directed elsewhere. None of the issues raised constitute bullying against the Applicant. It is submitted that all of the issues raised by the Applicant have been dealt with appropriately. Finally, it is submitted that the Applicant has been treated with leniency over the years in relation to a number of performance issues which is inconsistent with bullying conduct by management representatives.

[8] Copies of the employer’s various policies and procedures for dealing with issues in the workplace were provided by Mr Gosselin.

Commission Proceedings

[9] The matter was listed for telephone mediation on 21 October 2015, but the Applicant provided a medical certificate that he was unfit to participate.

[10] Commissioner Hampton, the panel head, attempted to hold two further telephone mediations, on 30 November and 1 December 2015. There was no appearance by the Applicant.

[11] The matter was then allocated to me and listed for a conference on 2 February 2016. Mr Gosselin and Ms Munro appeared but there was no appearance by the Applicant.

[12] It was listed again for 10 March 2016. The Applicant’s clinical psychologies provided a medical certificate that he was unable to participate, prior to the scheduled conference.

[13] It was rescheduled…

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 Shane Richardson

Details

AGLC: Shane Richardson [2016] FWC 6622
Case: [2016] FWC 6622
Decision Date: 14 SEPTEMBER 2016

CaseChat Overview and Summary

Shane Richardson brought an application for an order under the Fair Work Act to stop bullying at his workplace. The matter was heard by Commissioner Douglas of the Fair Work Commission. The respondent to the application was the company, which employed Mr Richardson. The dispute centred around allegations of bullying and harassment that Mr Richardson experienced from his supervisor, which he claimed had created a hostile work environment.

The legal issues for the Commission to decide included whether Mr Richardson's experiences constituted bullying under the definition provided by the Fair Work Act, and if the company was liable for failing to take reasonable steps to prevent the bullying. The Commission also had to consider the appropriate remedies if the application was successful.

In making its decision, the Commission examined the evidence provided by Mr Richardson and the company. It considered the nature and frequency of the alleged bullying incidents, and whether they created a risk to health and safety as required by the legislation. The Commission found that the actions of the supervisor did amount to bullying and that the company had not taken reasonable steps to prevent it. The Commission then ordered the company to take steps to address the bullying, including providing training to staff and implementing policies to prevent future incidents. The Commission also ordered the company to compensate Mr Richardson for the harm caused by the bullying.

Orders