Spence
[2024] FWC 2610
•25 SEPTEMBER 2024
| [2024] FWC 2610 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Spence
(AB2024/457)
| COMMISSIONER MCKINNON | SYDNEY, 25 SEPTEMBER 2024 |
Application for an order to stop bullying at work – whether alleged bullying occurred while at work in a constitutionally covered business
On 18 June 2024, Mr Alexander Spence applied for orders to stop bullying at work under s.789FC in Part 6-4B of the Fair Work Act 2009 (the Act). Mr Spence alleges that he was bullied while at work in the business of Viesul Australia Holdings Pty Ltd as trustee for the Spence Family Trust (VAH). Mr Spence is a director of VAH and a beneficiary of the Spence Family Trust.
The allegations are made in the context of a family law dispute currently before the Family Court of Western Australia. The alleged bullying behaviour is said to be “4 years of workplace and family violence, abuse and harassment” by Mr Spence’s former wife, Ms Sara Spence, and by Mr John Lawler, the lawyer acting for Ms Spence in the family court proceedings. The reference to 4 years coincides with the approximate time of Mr Spence and Ms Spence’s separation in September 2020. Mr Spence separately asserts that the bullying behaviour has occurred since March 2021 when Mr Lawler commenced acting for Ms Spence. On either timeframe, the context for the allegations is Mr Spence’s separation from Ms Spence and the ongoing family law dispute.
Section 789FD of the Act deals with when a worker is “bullied at work”. Relevantly, a worker is bullied at work if, while they are at work in a constitutionally-covered business, one or more individuals repeatedly behaves unreasonably towards them and the behaviour creates a risk to health and safety.
The questions are whether Mr Spence is a “worker”; whether VAH is a “constitutionally‑covered business”; and whether the alleged bullying at work occurred while Mr Spence was at work in the business of VAH. For reasons that follow, it is only necessary to answer the last of these questions.
I do not find that the alleged bullying behaviour occurred while Mr Spence was at work in the business of VAH (or in any other business). Accordingly, he could not have been bullied at work for the purposes of the Act. As I am not satisfied that Mr Spence has been bullied at work, the application will instead be dismissed.
Consideration
Section 789FD contains the meaning of when a worker is “bullied at work”. It provides as follows:
“(1) A worker is bullied at work if:
(a)while the worker is at work in a constitutionally-covered business:
(i)an individual; or
(ii)a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
(b)that behaviour creates a risk to health and safety.
(2)To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.
(3)If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:
(a)the person is:
(i)a constitutional corporation; or
(ii)the Commonwealth; or
(iii)a Commonwealth authority; or
(iv)a body corporate incorporated in a Territory; or
(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;
then the business or undertaking is a constitutionally-covered business.”
Mr Spence submits that the alleged bullying behaviour occurred while he was at work in the business of VAH in his capacity as Director. Mr Spence also relies on his previous employment by a wholly owned subsidiary of VAH, Risk & Emergency Management (REM) Associates Pty Ltd trading as REM Associates. REM Associates ceased to operate and was later deregistered in June 2023. Mr Spence is not, and could not be, a worker in the business of REM Associates.
VAH is the corporate vehicle through which Mr Spence and Ms Spence managed their family’s financial affairs on trust for their family. VAH held the title of their former family home until the home was sold, and it appears still to hold some financial assets.
Although some of the alleged behaviour dates back to 2016, that which is said to amount to bullying behaviour (that is, occurring in the past 4 years) is summarised below:
Ms Spence and her legal representatives have withheld information from Mr Spence about VAH’s finances.
In late 2020, Ms Spence became increasingly hostile, abusive and confrontational and threatened to kick Mr Spence out of their (then) family home.
Since September 2020, Ms Spence has lied to third parties including the Family Court of Western Australia about matters related to building works on the family home.
At various times, Ms Spence has refused to transfer money to the VAH bank account, or to finance VAH-related litigation, for the benefit of Mr Spence.
In December 2020, Ms Spence transferred telephone accounts of REM Associates into her name and cancelled internet and phone services.
In February 2021, Ms Spence did not produce paperwork relevant to a dispute about the building works on the family home.
From July 2021 to June 2022, Ms Spence colluded with Mr Spence’s former business partner against Mr Spence to defeat a legal claim for alleged debts, causing REM Associates and another company to collapse and be deregistered.
In June 2022, February 2023 and March 2023, Ms Spence and her legal representatives tried to coerce him into selling the former family home.
In June 2023, Ms Spence and her lawyers obtained judgment from the Family Court by misleading and deceptive conduct which forced the sale of the former family home.
I do not accept that any of the alleged instances of bullying behaviour toward Mr Spence occurred while he was at work in the business of VAH. To the extent that the allegations touch on the activities of VAH, they indicate to the contrary - that Mr Spence was not performing any work in the business because for practical reasons, he was unable to do so (see allegations numbered 1, 4, 5, and 6 in the paragraph above).
The remaining allegations bear no relation to work being carried out for VAH by Mr Spence. That is, they are either events in which Mr Spence had no involvement, or are about Mr Spence’s personal life rather than his experiences at work:
Allegation 2 is about personal interactions between Mr Spence and Ms Spence in the context of their relationship breakdown.
Allegation 3 is about Ms Spence’s dealings with third parties.
Allegation 7 deals with a complaint about building works on the former family home. Although such a complaint was in contemplation, it was never instituted.
Allegations 8 and 9 are about events in connection with the family court proceedings.
As noted above, the only other business in which Mr Spence alleges that he was working at relevant times, REM Associates, is no longer in operation.
Conclusion
In the circumstances, I do not find any of the alleged bullying behaviour towards Mr Spence to have occurred while he was at work in the business of VAH. Accordingly, I am not satisfied that Mr Spence has been bullied at work.
The application is dismissed.
COMMISSIONER
Appearances:
A Spence on his own behalf.
S Spence on her own behalf.
J Lawley on behalf of Australasian Lawyers Group T/A Butlers Lawyers & Notaries.
Hearing details:
2024.
Sydney (by video):
September 4.
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