DECISION

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

Stephen Hanson
(AB2019/196)

DEPUTY PRESIDENT BOYCE

SYDNEY, 22 APRIL 2021

Application for an FWC order to stop bullying – four core incidents of alleged bullying – incidents concerned safety and disciplinary processes, and issue of media releases concerning Applicant – unreasonable behaviour found – unreasonable behaviour concerning not only the four incidents but also safety and disciplinary processes associated with same – Commission satisfied of bullying claims – proceeding adjourned to determine appropriate Orders.

Overview

[1] Mr Stephen Hanson (Applicant / Mr Hanson) has filed a Form F72 anti-bullying application (Anti-Bullying Application) with the Fair Work Commission (Commission) seeking relief (in the form of stop-bullying orders) under Part 6-4B of the Fair Work Act 2009 (FW Act).

[2] The Respondents to the Anti-Bullying Application are:

(a) Regional Express Holdings Ltd (REX), Mr Hanson’s employer;

(b) Mr Mark Burgess, REX Deputy General Manager – Engineering (Mr Burgess);

(d) Mr Png Yeow Tat, REX General Manager – Engineering (Mr Png).

[3] The Anti-Bullying Application was amended, with my leave, on 3 June 2019. These amendments were not opposed by the Respondents.

[4] Conciliation conferences were held with the parties in an effort to resolve the proceedings by way of agreement. Ultimately, on 3 July 2019, it became apparent that resolution via conciliation would not occur, and directions were issued to program the matter for hearing. The directions were subsequently amended a number of times at the request of the parties.

[5] A hearing was conducted over six days in Sydney.

[6] During the hearing, Mr Hanson was represented by Ms Lucy Saunders of counsel (instructed by Mr Sean Morgan, Industrial / Legal Officer, of the Australian Licensed Aircraft Engineers Association (ALAEA)). The Respondents were collectively represented by Mr Dilan Mahendra of counsel (instructed by Clayton Utz Lawyers). Permission for all parties to be legally represented was not opposed, and I granted permission pursuant to s.596 of the FW Act for all parties to be legally represented having regard to the complexity of the matter, and my view as to the more efficient conduct of the hearing with the parties being legally represented.

[7] The Respondents oppose the Anti-Bullying Application, including any relief sought by Mr Hanson pursuant to same. In this regard, the Respondents rely upon three core contentions:

(a) there is no jurisdictional basis for Mr Hanson to make an application under s.789FF of the Fair Work Act 2009 (FW Act), in that he does not hold a “reasonable belief” that he has been bullied at work as required by s.789FC of the FW Act;

(b) the alleged bullying conduct complained of by Mr Hanson constitutes reasonable management action carried out in a reasonable manner, meaning that the Respondents have…

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.

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Details

AGLC: Stephen Hanson [2021] FWC 2200
Case: [2021] FWC 2200
Decision Date: 22 APRIL 2021

CaseChat Overview and Summary

The applicant, Stephen Hanson, applied to the Fair Work Commission for an order to stop alleged bullying by his employer. The nature of the dispute centred around four distinct incidents where Hanson was subjected to conduct that he characterised as bullying. The matter was heard by the Fair Work Commission. The central legal issues revolved around whether the conduct experienced by Hanson constituted bullying under the applicable legislation. Specifically, the court had to determine if the conduct was unreasonable, and if it created a risk to health and safety, as required for a finding of bullying.

In examining the evidence, the Commission focused on the four core incidents that Hanson identified, as well as the broader context of safety and disciplinary processes and media releases concerning him. The Commission found that the behaviour exhibited by the employer towards Hanson was unreasonable. This finding was not limited to the four incidents but also encompassed the safety and disciplinary processes that were integrally linked to these incidents. The Commission was satisfied that the conduct amounted to bullying, as it created a risk to Hanson's health and safety, fulfilling the statutory criteria. Consequently, the Commission proceeded to adjourn the matter to determine the appropriate orders that should be made to address the bullying.

Orders