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Trevor Yawirki Adamson

Trevor Yawirki Adamson

Case [2017] FWC 1976 19 May 2017

Standing

Abuse of Process

Jurisdiction

Employment & Labour Law

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[2017] FWC 1976

FAIR WORK COMMISSION

DECISION

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

Trevor Yawirki Adamson
(AB2016/662)

COMMISSIONER HAMPTON

SYDNEY, 19 MAY 2017

Application for an FWC order to stop bullying – chairperson of statutory board – jurisdictional objections – whether applicant is a worker and eligible to apply – whether alleged conduct occurred whilst at work – whether application an abuse of process – whether loss of position in subsequent election means no relevant future risk – applicant potentially a worker as chairperson and if so, alleged conduct occurred whilst at work – original application not an abuse of process – applicant no longer a worker as a volunteer or otherwise – no relevant future risk given terms of the legislation – to proceed with application would become an abuse of process – application dismissed.

1. Background and the issues to be determined

[1] Mr Trevor Yawirki Adamson has made an application for a stop bullying order under s.789FC of the Fair Work Act 2009 (the FW Act). Mr Adamson was at the time of making the application, the Chairperson of the Executive Board of the Anangu Pitjantjatjara Yankunytjatjara Inc (APY Inc). His application names two persons, Mr Richard King, General Manager and Mr Bernard Singer, who was at the time of the application, the Deputy Chairperson of the Executive Board and various allegations have been made about their conduct. APY Inc is named in the application and together with Mr King and Mr Singer form the respondent parties.

[2] The Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) (APY Act) provides for the vesting of title to approximately 100,000 square kilometres of lands in Northern South Australia to the people known as Anangu Pitjantjatjara Yankunytjatjara. The APY Act establishes the Executive Board which consists of elected or appointed members, including a Chairperson and Deputy Chairperson. It also provides for the appointment, by the Executive Board, of a Director of Administration and General Manager. The APY Act also establishes APY Inc as a corporate entity with status, powers and functions. I have referred to the corporate entity as APY Inc to differentiate between that entity and the APY community.

[3] In the responses provided to the application, Mr Singer and Mr King have strongly rejected the allegations made by Mr Adamson and made a number of counter claims about Mr Adamson’s conduct as Chairperson. They have also raised a number of “jurisdictional issues” concerning the capacity of the Commission to hear and determine the application under the anti-bullying provisions in Part 6-4B of the FW Act. These included that:

● Mr Adamson is not a “worker” as defined by the FW Act and the conduct complained of did not occur in the context of the applicant being “at work”; and
● the application is vexatious and an abuse of process.

[4] Following extensive efforts to conciliate the matter, including the issuing of comprehensive recommendations that all…

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 Trevor Yawirki Adamson

Details

AGLC: Trevor Yawirki Adamson [2017] FWC 1976
Case: [2017] FWC 1976
Decision Date: 19 MAY 2017

CaseChat Overview and Summary

The case of Trevor Yawirki Adamson involved an application to the Fair Work Commission (FWC) to stop bullying, which was subsequently dismissed by the Federal Court of Australia. The applicant, Trevor Yawirki Adamson, sought an order from the FWC to stop the alleged bullying by his former employer, which occurred during his tenure as the chairperson of a statutory board. The primary dispute centred on the eligibility of the applicant to apply for such an order and the jurisdictional validity of the application, particularly in light of his subsequent loss of position.

The legal issues before the court included whether Adamson was a worker for the purposes of the Fair Work Act, whether the alleged conduct occurred while he was at work, and whether the application was an abuse of process. Additionally, the court had to consider whether the loss of his position in a subsequent election meant there was no relevant future risk of the conduct continuing. The court also examined whether the original application was an abuse of process and whether, given the terms of the legislation, Adamson was no longer a worker, thereby making the continuation of the application an abuse of process.

The court found that Adamson could potentially be considered a worker as the chairperson of the statutory board, and if so, the alleged conduct occurred while he was at work. The original application was not deemed an abuse of process. However, Adamson was no longer a worker, as he had lost his position in a subsequent election. Consequently, there was no relevant future risk of the conduct continuing. The court concluded that to proceed with the application would become an abuse of process, and therefore dismissed the application.

The court’s final order was that the application be dismissed, on the grounds that Adamson was no longer a worker and there was no relevant future risk of the conduct continuing, making the continuation of the application an abuse of process.

Orders