DECISION

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

Shu Chen
(AB2021/108)

COMMISSIONER WILSON

MELBOURNE, 29 SEPTEMBER 2021

Application for an FWC order to stop bullying; whether applicant bullied at work; unreasonable conduct; reasonable management action; whether created risk to health and safety. Need for further evidence for final determination; alternatively, consideration of the issue of a Recommendation.

[1] Through his application under the Fair Work Act 2009 (FW Act) lodged on 2 March 2021 Mr Chen argues he has been bullied at work by two managers of his employer, Miniso Pty Ltd. That entity is part of the group of companies operating a chain of variety stores in three states operating under the brand “Miniso”. The stores themselves, at least some of them, are operated by franchisees of one of the Miniso companies. The group’s Australian website refers to it being a Japanese-inspired variety store headquartered in China. References in this decision to Miniso are references not only to Mr Chen’s direct employer, but also to other entities in the group.

[2] The bullying is claimed to have been directed towards Mr Chen by his manager, Angeline Yan, whose position with Miniso is as its National Sales and Operations Manager and James Lo, its Senior HR Officer.

[3] Mr Chen appeared at the hearing convened by me and gave evidence, and was the only person to do so on his behalf. Mr Maurice Baroni, of Counsel, appeared for the Persons Named, Ms Yan and Mr Lo and for Miniso. Ms Yan and Mr Lo each gave evidence on their own behalf.

[4] The available evidence has been analysed for bullying conduct in three periods, each sequential to the other; conduct prior to January 2021; the Victorian restructure in January 2021; and the issuing by Miniso of two letters to Mr Chen on 6 and 8 February 2021, referred to as the Letter of Concerns and the Directions Letter, and the events close to their issue. My conclusion is that there is no bullying conduct in the first two periods, but that there may be in respect to the two letters and the circumstances surrounding them.

[5] I have insufficient evidence at this time to determine Mr Chen was bullied at work in respect of the letters and propose to the parties the matter be disposed of in one of two ways; through the issue of a Recommendation by the Commission or through a final determination after the taking of further evidence regarding the letters from the witnesses heard so far and Miniso’s Director, Mr Ben Yip and its Victorian Human Resources Officer, Ms Wen Tan. The parties are directed through this decision to consider what is set out below, discuss it between each other and advise their preference within 14 days of the publication of the decision. A Recommendation will only be issued by me if all concerned agree that such course should be taken.

BACKGROUND

[6] Mr…

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 Shu Chen

Details

AGLC: Shu Chen [2021] FWC 5347
Case: [2021] FWC 5347
Decision Date: 29 SEPTEMBER 2021

CaseChat Overview and Summary

Shu Chen applied for an order from the Fair Work Commission to stop bullying at her workplace. The respondent, her employer, argued that the conduct in question was not bullying and was reasonable management action. The dispute was heard by the Fair Work Commission and the court was tasked with determining whether the applicant had been bullied and whether the employer's actions were unreasonable and created a risk to health and safety. Additionally, the court needed to consider whether further evidence was required before a final determination could be made or whether a recommendation should be considered instead.
The court found that there was insufficient evidence to make a final determination on whether the applicant had been bullied and whether the employer's actions were unreasonable. However, the court noted that the applicant had experienced a series of adverse actions and had expressed concerns about her health and safety. The court considered that further evidence was required to make a final determination on the issue of bullying. In the meantime, the court considered whether a recommendation should be made to the parties to address the applicant's concerns and improve workplace culture.

The court determined that it was appropriate to make a recommendation to the parties to address the applicant's concerns and improve workplace culture. The court recommended that the employer take steps to investigate the applicant's complaints, provide training on workplace bullying and harassment, and implement measures to prevent bullying and harassment in the workplace. The court also recommended that the applicant be provided with support and resources to address any ongoing concerns she may have. The court's recommendation aimed to promote a healthy and safe workplace and prevent further instances of bullying and harassment.

In summary, the Fair Work Commission found that there was insufficient evidence to make a final determination on whether the applicant had been bullied and whether the employer's actions were unreasonable. However, the court made a recommendation to the parties to address the applicant's concerns and improve workplace culture. The court recommended that the employer take steps to investigate the applicant's complaints, provide training on workplace bullying and harassment, and implement measures to prevent bullying and harassment in the workplace. The court also recommended that the applicant be provided with support and resources to address any ongoing concerns she may have.

Orders