DECISION

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

Shaneen Coulson
(AB2017/323)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 5 SEPTEMBER 2017

Application for an FWC order to stop bullying – Respondents applied to have the application dismissed on the basis that it is frivolous or vexatious or has no reasonable prospect of success and for orders prohibiting or restricting the publication of the names and addresses of persons appearing at the hearing of the application – Respondents’ applications dismissed.

[1] On 16 June 2017 Ms Shaneen Coulson (the Applicant) filed an application under s.789FC of the Fair Work Act 2009 (the Act) seeking an order to stop bullying in accordance with Part 6-4B of the Act. In her application, Ms Coulson alleged that she had been bullied by a number of senior managers at the Department of Environment and Energy (the Department). The Department in its Form F73 – Response from an employer/principal to an application for an order to stop bullying raised a number of objections to the application, including that that the alleged bullying behaviour was reasonable management action carried out in a reasonable manner.

[2] Ms Coulson’s application was the subject of a number of conferences convened by the Fair Work Commission (the Commission) which failed to resolve the matter. As a result, the application and the Respondents’ objections were listed for substantive hearing on 12 and 13 September 2017.

[3] On 3 August 2017 Ms Coulson filed an amended application which cited three senior managers, Ms Sita Jackson, Mr David Williams and Ms Paula Goodwin, as persons against whom bullying was alleged (together with the Department referred to as the Respondents). The Respondents did not object to the amended application. The Commission agreed to amend the application on 23 August 2017 relying on the powers available to it under s.586 of the Act.

[4] Also on 3 August 2017 the Respondents each filed a Form F1 – Application (No Specific Form) seeking that Ms Coulson’s application be dismissed under s.587(1)(b) and (c) on the grounds that it was frivolous or vexatious or has no reasonable prospects of success. Those applications also sought orders under s.593(3)(c) of the Act prohibiting or restricting the publication of the names and addresses of persons appearing at the hearing.

[5] Those applications to dismiss were listed for mention and directions on 23 August 2017 with the applications subsequently listed for hearing on 31 August 2017.

[6] At the hearing, Ms Gabrielle Sullivan appeared with permission for Ms Coulson while Mr Jamie Ronald of Counsel appeared with permission for the Respondents. Ms Coulson gave evidence on her own behalf, while Ms Abigail Whiting, Acting Assistant Secretary of the Department’s People Strategies Branch, gave evidence for the Respondents. Neither Ms Coulson nor Ms Whiting was required for cross examination.

[7] For the reasons set out below, I decline to make the orders sought by the Respondents, both in respect of dismissing Ms Coulson’s application…

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 Shaneen Coulson

Details

AGLC: Shaneen Coulson [2017] FWC 4618
Case: [2017] FWC 4618
Decision Date: 5 SEPTEMBER 2017

CaseChat Overview and Summary

In the matter of Shaneen Coulson, the applicant sought an order from the Fair Work Commission (FWC) to cease bullying against her. The respondents, including an employer and an employee, applied to dismiss the application on the basis that it was frivolous or vexatious or had no reasonable prospect of success. They also sought orders prohibiting or restricting the publication of the names and addresses of persons appearing at the hearing of the application.

The court was required to determine whether the applicant's case was frivolous or vexatious and whether it had a reasonable prospect of success. Additionally, the court needed to consider whether to grant the respondents' application for orders restricting the publication of personal information.

The court dismissed the respondents' applications. The court found that the applicant's case was not frivolous or vexatious and had a reasonable prospect of success. The court also considered the need for transparency in the proceedings and the importance of protecting the privacy of individuals involved in the case. The court declined to make orders restricting the publication of personal information, but it did impose conditions on the publication of the names and addresses of the persons appearing at the hearing.

The court's final orders included dismissing the respondents' applications to dismiss the applicant's case and to restrict the publication of personal information. The court also directed the parties to attend a hearing to determine whether the applicant had been subjected to bullying and to make any appropriate orders.

Orders