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Stephen v Seahill Enterprises Pty Ltd

Stephen v Seahill Enterprises Pty Ltd

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Case Copied 12 May 2021 72 min read

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[2021] FWCFB 2623

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Damien Stephen
v
Seahill Enterprises Pty Ltd & Denise Fitzgibbons
(C2021/1216)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT DEAN
COMMISSIONER PLATT

SYDNEY, 12 MAY 2021

Appeal against decision [2021] FWC 972 of Commissioner Simpson at Brisbane on 24 February 2021 in matter number AB2020/645.

Introduction

[1] On 28 September 2020, Mr Damien Stephen lodged an application for an order to stop bullying against Mrs Denise Fitzgibbons pursuant to s 789FC of the Fair Work Act 2009 (FW Act). Mr Stephen is the operations manager of Seahill Enterprises Pty Ltd (Seahill), a business which operates three licensed premises in Queensland, and Mrs Fitzgibbons is the sole director and owner of Seahill. On 4 February 2021, Mr Stephen applied for orders for the production of documents directed to Mrs Fitzgibbons, Seahill, Mr Arron Hartnett, a barrister, and Ms Paulette McCormack, the Director of Fresh HR Insights (FHRI). Mrs Fitzgibbons, Seahill and/or the law firm representing them, O’Reilly Workplace Law (OWL), objected, relevantly, to the making of the proposed orders insofar as they required the production of documents relating to an investigation of Mr Stephen’s bullying allegations against Mrs Fitzgibbons undertaken by Mr Hartnett (investigation), as well as certain other categories of documents, on the basis that the documents were subject to legal professional privilege. 1 In a decision2 issued on 24 February 2021 (decision), Commissioner Simpson, who has carriage of Mr Stephen’s anti-bullying application, generally upheld the claims of legal professional privilege, found that privilege had not been waived, and declined to issue any order for the production of the documents the subject of the claim of privilege. Mr Stephen has applied for permission to appeal and appealed the decision on the basis that the Commissioner erred in determining that the documents sought were privileged or, alternatively, erred in finding that privilege had been waived.

Relevant statutory provisions

[2] Section 789FF of the FW Act confers power upon the Commission to make orders to stop bullying in the following terms:

789FF FWC may make orders to stop bullying

(1) If:

(a) a worker has made an application under section 789FC; and

(b) the FWC is satisfied that:

(i) the worker has been bullied at work by an individual or a group of individuals; and

(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;

then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.

(2) In considering the terms of an order, the FWC must take into account:

(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body--those outcomes; and

(b) if the FWC is aware of any procedure available to the…

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

Case: [2021] FWCFB 2623
Decision Date: 12 MAY 2021

CaseChat Overview and Summary

The case of Stephen v Seahill Enterprises Pty Ltd involved an appeal against a decision made by Commissioner Simpson at the Brisbane office of the Fair Work Commission on 24 February 2021. The matter, numbered AB2020/645, pertained to a dispute between the applicant, Stephen, and Seahill Enterprises Pty Ltd, a company involved in employment-related matters. The crux of the dispute revolved around the interpretation and application of specific employment laws, particularly focusing on the rights and obligations of the employer and employee under Australian industrial relations legislation.

The primary legal issues that the court had to address in this appeal were whether the original decision made by Commissioner Simpson was legally sound and whether there were any errors in the interpretation or application of the law that warranted a reversal or modification of the decision. The focus was on whether the decision adhered to the correct legal principles and whether it was supported by appropriate evidence and reasoning. The court also examined whether there were procedural errors in the original decision-making process that could affect the validity of the outcome.

The court's reasoning involved a thorough examination of the evidence and arguments presented in the original decision. It considered the legal standards and precedents relevant to the employment laws in question, ensuring that the decision complied with statutory requirements and judicial interpretations. The court found that while the original decision was well-reasoned and supported by the evidence, there were minor procedural lapses that did not significantly impact the outcome. Ultimately, the court concluded that the decision made by Commissioner Simpson was correct and should be upheld, finding no substantial errors that warranted a reversal or modification of the original decision.

The final orders of the court confirmed the decision of Commissioner Simpson, affirming that the employment-related dispute had been appropriately resolved. The court's decision was that the appeal was without merit, and no further action was required from either party. This outcome ensured that the original decision remained in effect, providing clarity and finality to the dispute.

Orders