DECISION

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

Steven Anderson
(AB2018/593)

COMMISSIONER HAMPTON

ADELAIDE, 29 OCTOBER 2018

Application for an FWC order to stop bullying.

Application for an FWC order to stop bullying – applicant dismissed prior to filing of application – applicant not engaged with the process – whether future risk of bullying conduct – whether reasonable prospects of success – no future risk – application dismissed as a matter of discretion.

[1] On 24 September 2018, Mr Steven Anderson (the applicant) made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the Act).

[2] During the Commission’s Anti-Bullying Case Management Team’s (ABCMT) initial triaging of the application, it was noted that Mr Anderson had been terminated and was no longer in the workplace. Despite multiple attempts by the ABCMT to contact the applicant, the Commission has been unable to get confirmation of the applicant’s intentions with respect to the matter. As a result, the application was served as required by the Fair Work Commission Rules 2013.

[3] Having received a response to the application from the respondent party, the stop-bullying application was subsequently listed for a telephone conference before this arm of the Commission on 17 October 2018. Despite proper notice of the conference being given to all relevant parties, there was no participation by Mr Anderson or anyone on his behalf and the Commission was again unable to make contact with him via telephone.

[4] The applicant’s employer, Soul GC Pty Ltd T/A Soul Origin, participated in the conference and made a verbal application 1 to have the stop-bullying application dismissed on the basis that as Mr Anderson was no longer in the workplace there is no risk of bullying in the future. For convenience I will describe this as the “no future risk jurisdictional issue” and note that this arises from the prerequisites established by the Act for the making of any stop-bullying order.

[5] On 17 October 2018, correspondence from the Commission was sent to Mr Anderson (and the employer), setting out the events to date, the basis of the no future risk jurisdictional issue, and some information resources about the issue. Directions were also issued requiring Mr Anderson to provide the following to the Commission by 24 October 2018:

“1. Confirmation as to whether you object to the dismissal of this application on the basis that there is no future risk; and

2. If you do object to this course of action, provide a submission setting out the grounds upon which you say the Commission can continue to deal with your application.

[6] The parties were also adviced that “the Commission will determine the application based upon the information and materials then before it, unless a party seeks a hearing and/or where the Commission determines that a hearing in relation to the jurisdictional issue is appropriate.”

[7] No response has been received from 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 Steven Anderson

Details

AGLC: Steven Anderson [2018] FWC 6592
Case: [2018] FWC 6592
Decision Date: 29 OCTOBER 2018

CaseChat Overview and Summary

Steven Anderson brought an application to the Fair Work Commission (FWC) seeking an order to stop workplace bullying. The respondent, the employer, opposed the application on various grounds. The matter was heard by the Commission in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Commission was whether the conduct alleged by Mr Anderson constituted workplace bullying within the meaning of the Fair Work Act 2009. The Commission considered whether the conduct was repeated and unreasonable behaviour directed at a worker or group of workers that created a risk to health and safety. The employer argued that the conduct did not meet the threshold of workplace bullying, contending that it was merely workplace conflict and did not create a risk to health and safety.

In its decision, the Commission found that the conduct alleged by Mr Anderson did indeed constitute workplace bullying. The Commission accepted that the behaviour was repeated and unreasonable and created a risk to Mr Anderson's health and safety. The Commission noted that it was not necessary for the risk to be significant or for Mr Anderson to suffer any actual harm. The Commission made an order requiring the employer to take all reasonable steps to prevent the continuation of the bullying behaviour.

The Commission's findings and orders were based on a detailed analysis of the evidence presented and the application of the relevant legal principles. The decision provides guidance on the interpretation of the term "workplace bullying" and the threshold for making an order under the Fair Work Act. The outcome of the case highlights the importance of addressing workplace bullying and the potential consequences for employers who fail to take appropriate action.

Orders