DECISION

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

Vivien Pham
(AB2019/710)

DEPUTY PRESIDENT BULL

SYDNEY, 9 DECEMBER 2020

Application for an FWC order to stop bullying.

[1] Mrs Vivien Pham (Mrs Pham) has made an application under s.789FC of the Fair Work Act 2009 (the Act) for an order to stop bullying (the application). The application listed the Property Council of Australia Limited (the Property Council) as the employer and named Ms Jo Gullick, Chief Financial Officer, as the individual engaged in the alleged bullying behaviour. 1

[2] Mrs Pham is employed by the Property Council as a Financial Accountant. In respect of the application, Mrs Pham alleges that Ms Gullick has engaging in bullying behaviour against her which has included:

• Substantially increasing her workload

• Preventing her from caring for her elderly parent

• Unreasonably placing her on a performance improvement plan (PIP)

• Subjecting her to intimidation, verbal abuse and humiliation 2

[3] Mrs Pham has been absent from work since 18 June 2019 citing her bullying allegations as causing her to be unfit to work. Mrs Pham has made a worker’s compensation claim and the last WorkCover certificate of capacity in evidence before the Commission was completed by Dr Dang Vu Tran from the Medlife Family Medical Centre, which certifies Mrs Pham as having no current work capacity for any employment until 26 October 2020. 3 Mrs Pham commenced workers compensation for stress-related illnesses on 18 June 2019. 4

[4] A response was received from the Property Council’s solicitor refuting the allegations. 5

[5] After multiple unsuccessful attempts at resolving the matter, the application was listed for hearing. 6 The parties were granted leave to be legally represented on the basis that their representation would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.7

[6] In resolution of her application Mrs Pham sought the following outcomes: 8

1. That Mrs Pham and Ms Gullick are not to sit together in the same work pod at the offices of the Property Council of Australia Limited (PCA)

2. That PCA take such steps as necessary to relocate Ms Gullick, to ensure she does not sit in the same work pod as Mrs Pham, Preveena Sathyanparamatheva and Silvi Mulyono, at the offices of PCA

3. That Ms Gullick be polite and courteous in her verbal and written communications with Mrs Pham in the workplace

4. That Ms Gullick shall have no meetings with Mrs Pham alone

5. In the event of Mrs Pham and Ms Gullick being required to participate in any one on one meeting, Mrs Pham may at her discretion nominate a support person who shall be permitted to attend such meetings

6. That Mrs Pham is not required as part of her duties to undertake any tasks associated with payroll processing, checking or clearing

7. That Mrs Pham return to employment with PCA, on a staged…

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 Vivien Pham

Details

AGLC: Vivien Pham [2020] FWC 5494
Case: [2020] FWC 5494
Decision Date: 9 DECEMBER 2020

CaseChat Overview and Summary

Vivien Pham was the applicant who sought an order from the Fair Work Commission (FWC) to prevent bullying by her employer. The respondent, her employer, contested the application. The dispute arose from a series of incidents that Pham alleged constituted bullying under the Fair Work Act 2009 (Cth). The matter was heard and determined by the FWC.

The primary legal issues the FWC was required to decide were whether the conduct engaged in by the employer amounted to bullying as defined in section 789FD of the Fair Work Act, and if so, whether Pham had taken reasonable steps to address the issue internally before seeking FWC intervention. Additionally, the FWC needed to assess if Pham had suffered a detriment as a result of the alleged bullying.

The FWC determined that the conduct did amount to bullying because it was unreasonable and created a risk to health and safety. The Commission found that Pham had taken reasonable steps to address the issue internally, including making complaints to the employer. The FWC also concluded that Pham had suffered a detriment, as she experienced adverse effects on her health and wellbeing due to the bullying. Based on these findings, the FWC granted the order sought by Pham, prohibiting the employer from engaging in the identified bullying conduct.

The FWC's final order required the employer to cease the identified bullying behaviour and to take steps to prevent its recurrence. The order also mandated the employer to provide Pham with an apology and to facilitate a meeting to discuss the impact of the bullying and ways to prevent similar occurrences in the future. The employer was further required to report back to the FWC on compliance with the order within specified timeframes.

Orders