The Applicant v General Manager and Company C - [2014] FWC 3940

[2014] FWC 3940

FAIR WORK COMMISSION

DECISION

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

The Applicant
v
General Manager and Company C
(AB2014/1056)

COMMISSIONER ROE

MELBOURNE, 17 JUNE 2014

Application for an FWC order to stop bullying - whether action complained of constitutes bullying.

[1] The Applicant has made an application for an order to stop bullying under Section 789FD of the Fair Work Act 2009 (the Act). The application alleges bullying conduct by another employee, the General Manager. The workplace concerned is conducted by the Applicant’s employer (the employer or Company C) which is a major national listed company. I will refer to the General Manager and the employer as the Respondents given that a common case was presented by them.

[2] The matter was the subject of unsuccessful conciliation before another member of the Fair Work Commission. The hearing of this matter occurred on 2 May 2014 and I provided the parties with the opportunity to make subsequent written submissions, the last of which was received on 6 June 2014. After hearing from the parties I decided that it was appropriate to protect the anonymity of the principal parties in this matter and also to limit public access to certain commercially sensitive information concerning the business of the employer.

[3] The Applicant represented herself at the hearing of this matter. After considering the matters specified in Section 596 of the Act I decided to grant permission for the employer and the General Manager to be represented by a lawyer. One matter I considered relevant was that the denial of permission would lead to delay in the hearing of the matter and the Applicant had expressed a strong desire for the matter to be finalised expeditiously. I was satisfied that the Applicant understandably found the process of preparing for and participating in the proceedings stressful. In circumstances where the Applicant alleged she was suffering from significant stress related illness as a result of the alleged bullying and where that illness had led to a significant and continuing period of absence under workers compensation provisions I considered that it was important to deal with the matter fairly but also as expeditiously as was possible. I considered that the efficient conduct of the matter was therefore enhanced by allowing representation.

[4] The parties agreed that given that the Applicant was not represented I should not draw any inference from the failure to put a matter to a witness where the evidence was in conflict and to assume unless otherwise stated that the person making the statement abides by their version of events as opposed to an alternative version put by another witness.

Background and the allegations

[5] The Applicant is a training manager responsible for the employer’s training business in Victoria. The Applicant is responsible for a team of seven or eight other employees including a number of trainers. From the commencement of her employment in December 2012 until 1 September 2013 the Applicant, along…

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: [2014] FWC 3940
Decision Date: 17 JUNE 2014

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the Applicant brought proceedings against the General Manager and Company C, seeking an order from the Fair Work Commission to stop alleged workplace bullying. The Applicant claimed that the actions of the General Manager amounted to bullying under the Fair Work Act 2009. The General Manager and Company C denied the allegations, asserting that the actions in question did not constitute bullying.

The primary legal issue before the court was whether the conduct of the General Manager could be classified as workplace bullying. The court examined the statutory definition of bullying under section 789FD of the Fair Work Act, which includes repeated unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety. The court also considered relevant case law and the factual circumstances of the case, including the nature and frequency of the conduct, and the impact on the Applicant.

The court found that the actions of the General Manager did not meet the threshold for workplace bullying. The behaviour, while unpleasant and inappropriate, did not involve a pattern of repeated unreasonable conduct that created a risk to health and safety. The court noted that there were no incidents of physical threats or intimidation, and that the conduct was not sufficiently severe or pervasive to amount to bullying. As a result, the court dismissed the Applicant's application.

The court ordered that the Applicant pay the General Manager's and Company C's costs of the application. The decision underscores the importance of a thorough analysis of the specific circumstances when determining whether conduct constitutes workplace bullying.

Orders