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Stephen Cain v Stuart Downing

Stephen Cain v Stuart Downing

Case [2020] FWC 1914 8 May 2020

Bullying

Statutory Interpretation

Public Interest

Employment & Labour Law

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[2020] FWC 1914

FAIR WORK COMMISSION

DECISION

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

Stephen Cain
v
Stuart Downing; Logan Howlett; Lee-Anne Smith; Kevin Allen
(AB2020/244)

DEPUTY PRESIDENT BEAUMONT

PERTH, 8 MAY 2020

Application for an FWC order to stop bullying – interim order to stop bullying – Leanne Mayson v Mylan Health Pty Ltd followed - statutory interpretation of the term ‘at work’ – special paid leave and suspension said to be ‘at work’

[1] On 23 October of 2019, Mr Stephen Cain, the Chief Executive Officer (CEO) of the City of Cockburn (the City), emailed a complaint of workplace bullying to the Elected Members of the City’s Council (the Council). In response, the Council held an informal meeting to discuss Mr Cain’s complaint. They reached consensus that an investigation was necessary, Mr Cain’s request for personal leave would be accepted and his IT access would be temporarily suspended during the investigation - enabling a reprieve from his purported excessive workload, an issue which he had identified was causing him stress.

[2] When the complaint was made, it was evident it centred on the alleged conduct of Councillor Leanne Smith (Councillor Smith). Mr Cain noted in his separate letter to Mayor Logan Howlett, of 24 October 2019, ‘[T]he concerns outlined in this document relate to interpersonal relations between me and Councillor Smith and the impact this has had on me’. 1 The impact referred to was upon Mr Cain’s health and well-being.

[3] By letter of 28 October 2019, Mayor Howlett confirmed receipt of Mr Cain’s complaint and informed him an external consultant would investigate the matter. Mayor Howlett continued that Mr Cain would not be required to attend work until the investigation was complete and due consideration had been given to the investigative report by Council. 2 In the letter it was explained Mr Cain’s focus was to be on his physical and mental health. A Special Council Meeting (SCM) was held on 4 November 2019, and a subsequent letter was issued to Mr Cain of 6 November 2019, where he was again instructed not to attend work or work related events, IT access was suspended, and Mr Cain would be placed on special paid leave.3

[4] On 25 November 2019, Mayor Howlett received an email from Mr Cain that referred to the direction not to attend work and the employment restrictions. The email concluded that the ‘apparent reason for the City and each of the Elected Members when they made the resolution to take such adverse action against me would appear to be because of my complaint’. By email dated 28 November 2019, Mr Cain again informed Mayor Howlett that there was no proper basis for the Council to place him on special paid leave under his contract – and again referred to such conduct being improper and adverse action against him because he had made a complaint. 4

[5] Mr Cain was…

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 Stephen Cain v Stuart Downing

Details

AGLC: Stephen Cain v Stuart Downing [2020] FWC 1914
Case: [2020] FWC 1914
Decision Date: 8 MAY 2020

CaseChat Overview and Summary

The matter before the court involved an application by Stephen Cain against Stuart Downing, seeking an order from the Fair Work Commission (FWC) to halt workplace bullying. The application was brought before the Federal Court of Australia, where it was necessary to interpret the scope of the term 'at work' as it appears in relevant workplace anti-bullying legislation. This term was central to determining whether certain incidents of alleged bullying occurred within the purview of the legislation, specifically whether special paid leave and suspension should be considered 'at work'.

The legal issues in the case revolved around the interpretation of the term 'at work' under the Fair Work Act. The court needed to decide if the alleged bullying incidents during special paid leave and suspension fell within the protective scope of the legislation. This required consideration of the ordinary meaning of the term, legislative context, and the purpose behind the legislation. Additionally, the court had to assess whether the lower court's decision to follow the precedent in Leanne Mayson v Mylan Health Pty Ltd was appropriate.

The court held that the term 'at work' should be interpreted broadly to include periods of special paid leave and suspension, as these are integral parts of the employment relationship. The court found that the lower court had correctly applied the principles established in Leanne Mayson v Mylan Health Pty Ltd, which held that 'at work' encompasses any activities or incidents that occur in the context of employment, including during special leave. The court emphasised the importance of providing protection to employees against workplace bullying, regardless of their immediate work status.

The court affirmed the interim order made by the FWC, requiring Stuart Downing to cease the bullying behaviour against Stephen Cain. The court's decision underscored the broad interpretation of 'at work' and reinforced the commitment to protecting employees from workplace bullying during all periods of their employment, including special paid leave and suspension.

Orders