DECISION

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

Vinay Michael
(AB2017/477)

COMMISSIONER BISSETT

MELBOURNE, 16 FEBRUARY 2018

Application for an FWC order to stop bullying – applicant advised has resigned from employment with employer – prerequisites under s.789FF for making order not met –application has no reasonable prospects of success – application dismissed on Commission’s own motion.

[1] Mr Vinay Michael made an application to the Fair Work Commission (Commission) for orders to cease bullying on 29 August 2017.

[2] Mr Michael was employed at Bendigo Kangan Institute (BKI). He taught in the ICT Department at the Melbourne campus. Mr Michael said that he was bullied by two of his supervisors and that the bullying took the form of:

1. Failure to pay extra teaching duty hours (ETDH);

2. Request to assess student Nishant Inder;

3. Discrimination and isolation from departmental activities;

4. Harassment in a meeting with the named employees;

5. The Matt Pike request;

6. Removal from CISCO;

7. Ignoring health condition;

8. Victimisation and changing decision on reduced hours;

9. Allocating subjects to less qualified teachers.

[3] Each of Mr Michael’s supervisors had worked at BKI for in excess of 15 years although his direct supervisor had only recently been appointed to her role.

[4] On 6 October 2017 I issued an interim Order which required that, until the application was finalised, Mr Michael and the named persons not have contact with each other apart from incidental contact. That Order remains in place.

[5] Mr Michael’s application was heard before me on 30 November 2017. Whilst all of the evidence was given on that day final submissions were not made. Directions were therefore issued to the parties as follows:

1. Mr Vinay Michael (Applicant) is required to file with the Fair Work Commission (Commission) and serve on Bendigo Kangan Institute (Respondent) and the named persons final submissions by 4.00 pm Friday 22 December 2017.

2. The Applicant’s submissions should address how, on the basis of the evidence (as provided in transcript and the documents provided by the parties) the Commission can be satisfied that he was bullied at work and how the Commission can be satisfied that he will continue to be bullied at work. He is also required to include in his submissions the orders he wishes to have the Commission issue in accordance with s.789FF of the Fair Work Act 2009.

3. The Respondent and named persons are required to file with the Commission and serve on the Applicant any final submissions by 4.00 pm Wednesday 17 January 2018.

4. The Applicant is required to file with the Commission and serve on the Respondent and named persons submissions in reply by 4.00pm Wednesday 24 January 2018.

[6] Mr Michael and BKI both complied with the directions issued in that each met the timeframe established. Mr Michael, however, did not specify the specific form of the orders he wished the Commission…

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 Vinay Michael

Details

AGLC: Vinay Michael [2018] FWC 905
Case: [2018] FWC 905
Decision Date: 16 FEBRUARY 2018

CaseChat Overview and Summary

In the matter of Vinay Michael, the applicant brought an application before the Fair Work Commission (FWC) seeking an order to prevent alleged bullying by the employer. The applicant, who had previously been engaged in a workplace bullying dispute with the employer, had resigned from employment and subsequently sought the FWC's intervention. The core dispute revolved around the applicant's claim that the employer's conduct amounted to bullying and whether the FWC had the jurisdiction and authority to issue an order under these circumstances.

The primary legal issues that the FWC was required to address included whether the prerequisites for making an order under section 789FF of the Fair Work Act were satisfied, given the applicant's resignation, and whether the application had reasonable prospects of success. The FWC had to consider whether it had jurisdiction to hear the application and whether the statutory criteria for making an order were met, particularly in light of the applicant's resignation and the potential implications for the Commission's ability to provide effective relief.

The FWC found that the prerequisites for making an order under section 789FF were not met, as the applicant had resigned from employment. The Commission determined that the application had no reasonable prospects of success due to the applicant's resignation, which rendered the issue of workplace bullying moot. Consequently, the FWC dismissed the application on its own motion, concluding that there were no grounds to proceed with the application given the current circumstances. The Commission emphasised that the prerequisites for making an order were not satisfied and that the application was therefore dismissed.

Orders