DECISION

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

Shoebir Kaabi
(AB2019/220)

DEPUTY PRESIDENT CROSS

SYDNEY, 17 JANUARY 2020

Application for an FWC order to stop bullying.

[1] This decision concerns an application made under section 789 FC of the Fair Work Act 2009 (Cth) for an order to stop bullying (the “Application”). The Applicant is Mr Shoebir Kaabi (the “Applicant”). The Applicant is employed by the Super Cheap Auto Pty Ltd (the “Company”) in Sydney. There are eight persons against whom bullying is alleged by the Applicant (the “Named Persons”). Each of the Named Persons is also an employee of the Company in various positions of Human Resources Manager, Human Resources Manager, Cluster Manager, Area Manager, two Store Managers and two Team Members.

[2] The Named Persons each deny having ever behaved unreasonably towards the Applicant.

[3] The Commission conducted a conference of the parties on 14 June, 2019 (the “Conference”). The Conference was attended by the Company’s representatives, and most if not all the Named Persons either in person, or by video link with Brisbane. The Applicant did not attend the Conference. The day before the Conference the Applicant had requested that he be permitted to attend the Conference by telephone. That request was rejected. Upon the Applicant’s non-attendance at the Conference he was contacted by telephone and participated in the Conference by telephone.

[4] At the conclusion of the Conference, the Applicant was directed to file by 26 July 2019, the outline of orders that he sought as an outcome to the Application, together with any evidence that he wished to rely upon in support of those orders. On 26 July 2019, the Applicant filed a document outlining the Orders he sought, without any supporting evidence. The orders sought were as follows:

“To whom it may concern,

I will outline the orders I want to be fulfilled.

Super Retail Group has rectified most issues that I have mentioned, though I would like these key points to be addressed;

• To be treated in a fair and respectful manner, not just myself but all staff to adhere the company’s policies of an equal and fair workplace.

• A formal apology on behalf of all parties involved in this matter.

• More support for workers who experience bullying within the company.

• Upper management such as HR take a refresher course on how to deal with workplace bullying within the company.

• To have no dealings with Agnes Stone & Mariam Al-Mallah.

• More training for staff on preventable workplace bullying & harassment.

• For the company to provide adequate training for new & existing workers, such as workplace induction, policies & training.

I would like to thank the commission for the support and help they have provided. I would also like to thank Super Retail Group for rectifying all issues raised.

Thankyou
Shoebir Kaabi”

[5] The Company responded to the orders sought in a comprehensive fashion on…

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 Shoebir Kaabi

Details

AGLC: Shoebir Kaabi [2020] FWC 206
Case: [2020] FWC 206
Decision Date: 17 JANUARY 2020

CaseChat Overview and Summary

Shoebir Kaabi, an employee, brought an application before the Fair Work Commission (FWC) seeking an order to halt bullying behaviour exhibited by his supervisor, the respondent. The dispute centred around allegations of repeated and unreasonable behaviour by the respondent, which Kaabi claimed amounted to workplace bullying, adversely affecting his health and wellbeing. The Commission was tasked with determining whether the conduct indeed constituted bullying and, if so, what remedial actions were necessary to address the situation.

The central legal issue before the Commission was to ascertain whether the respondent's actions met the statutory definition of bullying under the Fair Work Act. This required a detailed examination of the conduct in question, the context in which it occurred, and its impact on Kaabi. The Commission needed to determine if the behaviour was unreasonable and created a risk to Kaabi's health and safety, fulfilling the criteria for workplace bullying.

The Commission meticulously reviewed the evidence presented, including witness statements and the nature of the interactions between Kaabi and the respondent. It found that the respondent's conduct, characterised by repeated verbal abuse and humiliation, was unreasonable and created a risk to Kaabi's health and safety. Given this determination, the Commission issued an order mandating that the respondent cease the bullying behaviour immediately and take steps to prevent any recurrence. The Commission emphasised the importance of a safe and respectful workplace environment and highlighted the employer's responsibility to address such issues promptly and effectively.

Orders