DECISION

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

Thi Hai Luong
(AB2019/444)

COMMISSIONER GREGORY

MELBOURNE, 13 NOVEMBER 2019

Application for an FWC order to stop bullying.

Introduction

[1] Ms Thi Hai Duong Luong, otherwise known as Ms Amy Luong, has made application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (Cth) (the Act). She claims she was bullied at work by Ms Anne Boulova when employed by Carers of Africa Inc. (Carers of Africa).

[2] The application was dealt with in conference on 12 September 2019 but was not able to be resolved. Ms Luong appeared on her own behalf in that conference, while Mr Bright Chingaya, the Director of Carers of Africa, appeared by telephone on its behalf.

[3] However, Mr Chingaya also raised a threshold issue in response to the application on the basis that while Ms Luong had been employed by Carers of Africa, she was no longer employed, and there was no prospect of her being employed by the organisation again at any time in the future. Therefore, there was no risk that Ms Luong could be bullied at work in the future by the named individual and the application should be dismissed.

[4] On 23 September the Commission sent the following letter to Ms Luong, with a copy also provided to Carers of Africa.

“RE: AB2019/444 – Application by Luong, Thi Hai Duong

I forward this letter following the recent conference on 12 September and my discussions with Mr Bright Chinganya, the Director of Carers of Africa Inc.

It is my understanding that you worked at Carers of Africa Inc. under a Government program that has now come to an end and you no longer work at the Organisation or have any involvement with it. I also understand that in light of recent events there is no possibility of you working with the Organisation again.

I am satisfied that this situation raises a real issue in regard to your application, and whether it is appropriate for the Commission to continue to deal with the matter. I accordingly seek your views in response before deciding how the application should be progressed.

The issue that arises concerns the Commission’s powers to make orders under s.789FC of the Fair Work Act 2009 were it ever to find that bullying at work has occurred. Section 789FF makes clear that before the Commission can exercise the power to make orders it must first be satisfied that bullying at work has occurred. However, it must also be satisfied that “there is a risk that the worker will continue to be bullied at work by the individual or group.”

The fact that you are no longer working or involved with Carers of Africa Inc, and are not likely to be involved again in the future, therefore raises an issue about whether the Commission can be in a position where it could ever consider making…

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 Thi Hai Luong

Details

AGLC: Thi Hai Luong [2019] FWC 7749
Case: [2019] FWC 7749
Decision Date: 13 NOVEMBER 2019

CaseChat Overview and Summary

The case of Thi Hai Luong involves an application to the Fair Work Commission (FWC) for an order to halt bullying within the workplace. The applicant, Thi Hai Luong, sought relief against what she alleged were acts of bullying by her employer, which she claimed had created a hostile work environment. The Commission was tasked with determining whether the actions of the employer amounted to workplace bullying under the Fair Work Act.

The legal issues before the FWC centred on the interpretation and application of the definition of workplace bullying. The key questions were whether the conduct of the employer was repeated, unreasonable, and had created a risk to health and safety, as required by the Act. The applicant argued that her employer's conduct met these criteria, while the employer contended that the actions did not constitute bullying. The FWC had to assess the nature and frequency of the conduct, and the impact it had on the applicant.

In its decision, the FWC found that the employer's actions did indeed constitute bullying. The conduct was deemed to be unreasonable and had created a risk to the health and safety of the applicant. The FWC emphasised the repeated nature of the conduct and its adverse impact on the applicant's mental health and ability to perform her job. Consequently, the FWC ordered the employer to cease the bullying behaviour and to take steps to prevent a recurrence. The decision underscores the importance of maintaining a safe and respectful workplace environment.

Orders