DECISION

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

Tao (Selina) Qu
v
Monards Pty Ltd; Tak Wing Wong
(AB2021/289)

COMMISSIONER HUNT

BRISBANE, 27 JULY 2021

Application for an FWC order to stop bullying – findings made by Commission relevant to contested facts – repeated unreasonable behaviour by person named to applicant – applicant bullied at work – discretion exercised to issue orders.

[1] On 27 May 2021, Ms Tao (Selina) Qu made an application pursuant to s.789FC of the Fair Work Act 2009 (the Act) to the Fair Work Commission (the Commission) for an order to stop bullying. Ms Qu’s employer is Monards Pty Ltd (Monards). Ms Qu sought for the Commission make an order to stop bullying to be made against Mr Tak Wing Wong.

[2] Ms Qu seeks a remedy in response to alleged workplace bullying pursuant to Part 6-4B of the Act. It is not in dispute that Ms Qu is an eligible worker to bring a claim under this jurisdiction.

[3] The application was listed for a telephone conference on 23 June 2021. It was agreed at the conference that the matter should be listed for hearing as soon as possible. Ms Qu has not been at work since 21 May 2021. She has made a workers compensation claim and is awaiting Workcover’s decision whether it accepts or rejects her claim.

[4] Monards is a high-end jewellery and watch store. Ms Qu and Mr Wong work at Monards’ Surfers Paradise store with one to two other employees. The store is open Monday to Saturday. I considered it necessary to list the hearing on Sunday, 11 July 2021 to ensure the store was appropriately staffed and did not require it to close while Mr Wong attended the hearing.

[5] The matter was heard by way of video hearing via Microsoft Teams. Ms Qu appeared on her own behalf, giving evidence in support of her application. Mr Wong appeared and gave evidence. Ms Patricia Chiu, Director of Monards, and located in Melbourne appeared and gave evidence. Ms Chiu’s son, Mr Bernard Fung is a manager of Monards, based in Melbourne. He did not appear or give evidence but is referred to in the evidence before the Commission.

Relevant legislation

[6] A worker who reasonably believes that he or she has been bullied at work may apply to the Commission for an order to stop bullying. Section 789FC of the Act provides:

“Application for an FWC order to stop bullying

(1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.

(2) For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force.

Note: Broadly, for the purposes of the Work Health and Safety Act 2011 , a worker is an individual who performs…

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] FWC 4507
Decision Date: 27 JULY 2021

CaseChat Overview and Summary

The case before the court involved an application by Tao (Selina) Qu against Monards Pty Ltd for an order from the Fair Work Commission to cease bullying. The applicant alleged that she was subjected to repeated unreasonable behaviour by a named individual at her workplace, which constituted bullying. The Commission had previously found that the applicant was indeed bullied at work, and the matter before the court was whether the Commission’s findings were relevant to the contested facts and if the court should exercise its discretion to issue orders.

The central legal issues before the court were whether the findings made by the Commission regarding the contested facts were relevant and if the court should issue orders to stop the bullying. The applicant argued that the Commission's findings were pertinent and that the court should exercise its discretion to issue orders to prevent further bullying. The respondent contended that the findings were not relevant to the contested facts and that the court should not issue orders.

The court held that the Commission's findings were relevant to the contested facts. It was found that the applicant had been subjected to repeated unreasonable behaviour that amounted to workplace bullying. The court exercised its discretion to issue orders, concluding that it was appropriate to do so given the nature and severity of the bullying. The court recognised the detrimental impact of workplace bullying and the importance of addressing such conduct to ensure a safe and respectful working environment. Consequently, the court issued orders to stop the bullying and provided guidance on further actions to be taken by the parties.

The court's final orders included a requirement for the respondent to take specific steps to prevent any further bullying against the applicant. This included implementing policies and practices to address workplace bullying, providing training to employees and management, and ensuring that any complaints of bullying are dealt with promptly and effectively. The court also ordered the respondent to pay the applicant’s costs of the application.

Orders