Welsh v Logan City Council

Case [2021] QIRC 141

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Welsh v Logan City Council [2021] QIRC 141

PARTIES:

Welsh, Brian
(Applicant)

v

Logan City Council
(Respondent)

CASE NO.:

 B/2020/82

PROCEEDING:

Application for an order to stop bullying

DELIVERED ON:

 29 April 2021

HEARING DATE:

3 February 2021
DATES OF WRITTEN SUBMISSIONS:

Applicant's written submissions filed on 18 February 2021, Respondent's written submissions filed on 2 March 2021 and Applicant's submissions in reply filed on 5 March 2021

MEMBER:

HEARD AT:

Merrell DP

Brisbane

ORDER:

The Applicant's application for an order to stop bullying is dismissed.
CATCHWORDS:

INDUSTRIAL LAW - application for an order to stop bullying - consideration of the elements for Commission to be satisfied an employee has been bullied in the workplace within the meaning of s 272 of the Industrial Relations Act 2016 - consideration of the elements of s 275(1) of the Industrial Relations Act 2016 for Commission to have power to make an order to stop bullying - whether preliminary investigation, investigation and disciplinary procedure undertaken by certain employees of the respondent, in respect of the applicant, meant the applicant was bullied in the workplace - whether the conduct of those employees created a risk to the health and safety of the applicant - applicant not bullied in the workplace - application dismissed

LEGISLATION:

Fair Work Act 2009 (Cth), s 789FD and s 789FF

Industrial Relations Act 2016, s 8, s 272, s 273, and s 275

Local Government Act 2009, s 4, s 129, s 132, s 197, s 202 and sch 4

Local Government Regulation 2012, s 278, s 279, s 280 and s 283

Public Sector Ethics Act 1994, s 10 and s 24

Safety, Rehabilitation and Compensation Act 1988 (Cth), s 5A

Work Health and Safety Act 2011, s 7

Workers' Compensation and Rehabilitation Act 2003, s 32

Workers Rehabilitation and Compensation Act 1986 (SA), s 30A

CASES:

Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345

Bowker v DP World Melbourne Ltd [2014] FWCFB 9227; (2014) 246 IR 138

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361

Mac v Bank of Queensland & Ors [2015] FWC 774; (2015) 247 IR 274

Manly Council v Byrne [2004] NSWCA 123

Mayson v Mylan Health Pty Ltd & Ors [2020] FWC 1404

Mekuria v MECCA Brands Pty Ltd [2019] FWCFB 2771

Ms SB [2014] FWC 2104

Neat Holdings v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170

Obatoki v Mallee Track Health and Community Services [2015] FWCFB 1661; (2015) 249 IR 135

Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252

South Eastern Sydney Local Health District v Lal [2019] FWCFB 1475; (2019) 285 IR 355

State of Queensland (Department of Agriculture and…

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Details
AGLC
Welsh v Logan City Council [2021] QIRC 141
Case
[2021] QIRC 141
Decision Date

CaseChat Overview and Summary

The case of Welsh v Logan City Council involved the applicant, Mr Welsh, who sought an order to stop bullying under the Industrial Relations Act 2016. The respondent, Logan City Council, argued that Mr Welsh had not been bullied in the workplace as defined by the Act. The Fair Work Commission, which had jurisdiction over the matter, was tasked with determining whether the actions of certain Council employees constituted repeated and unreasonable behaviour that created a risk to Mr Welsh's health and safety.

The primary legal issue was whether Mr Welsh had been subjected to bullying within the meaning of s 272 of the Act. This required an examination of whether the conduct of the Council employees was repeated and unreasonable, and if it created a risk to Mr Welsh's health and safety. The Commission also had to consider if the behaviour fell outside the scope of reasonable management actions as per s 272(2). The elements of the equivalent provisions in the Fair Work Act 2009 were referenced to understand the application of the Industrial Relations Act.

In delivering the decision, the Commission found that the behaviour of the Council employees towards Mr Welsh, while possibly inappropriate, did not meet the threshold of being repeated and unreasonable. The Commission emphasised that the disciplinary procedure had not been completed, and thus, the decision was confined to the specific question of whether Mr Welsh had been bullied. The Commission concluded that the actions of the Council employees did not constitute bullying under the Act. Consequently, Mr Welsh's application for an order to stop bullying was dismissed.

The final order made by the Commission was that Mr Welsh's application for an order to stop bullying was dismissed, affirming that the behaviour in question did not amount to bullying as defined by the Industrial Relations Act 2016.

Orders

Orders of the court

The Applicant's application for an order to stop bullying is dismissed.

Background

Background to the litigation

For the reasons that follow, the impugned behaviour of the relevant Council employees was not repeated, unreasonable behaviour. For that reason, I cannot be satisfied that Mr Welsh has been bullied in the workplace. The Act and its application to the facts of the present case Before turning to the question of whether or not the impugned behaviour of the relevant employees of the Council toward Mr Welsh was repeated, unreasonable behaviour, it is necessary to consider the relevant provisions of the Act. Recommendation 32 of the December 2015 report of the Industrial Relations Legislative Reform Reference Group was that employees be given access to an anti‑bullying jurisdiction, through the Commission, similar to that as provided through the Fair Work Commission ('FWC').[1] That recommendation was adopted by the Queensland government, resulting in the enactment of ch 7 of the Act. [2][1] Industrial Relations Legislative Reform Reference Group, A Review of the Industrial Relations Framework in Queensland, (Report dated December 2015) 85-87.[2] Queensland, Parliamentary Debates, Legislative Assembly, 29 November 2016, 4662 (Grace Grace, Minister for Employment and Industrial Relations). The purpose of ch 7 of the Act is to confer power on the Commission, upon application by an employee who reasonably believes he or she has been bullied in the workplace, to make any orders it considers appropriate, other than an order requiring payment of a pecuniary amount, to prevent the employee from being bullied in the workplace.Section 272 of the Act Section 272 of the Act defines when an employee is bullied in the workplace and provides:272 When is an employee bullied in the workplace(1)An employee is bullied in the workplace if-(a)while the employee is at work, an individual or group of individuals repeatedly behaves unreasonably towards-(i)the employee; or(ii)a group of employees of which the employee is a member; and(b)that behaviour creates a risk to the health and safety of the employee.Note-For the meaning of employee for this chapter, see section 8(2).(2)To remove any doubt, it is declared that subsection (1) does not apply to reasonable management action carried out in a reasonable manner. The elements of the equivalent provisions in s 789FD of the Fair Work Act 2009 ('the FW Act') have been considered by the FWC.All the elements of s 272 of the Act must be read together All the requirements of s 272 of the Act must be read together. This means the Commission must consider whether an individual or group of individuals have repeatedly behaved unreasonably towards an applicant and whether that behaviour has created a risk to health and safety.[3] [3] Ms SB [2014] FWC 2104 ('Ms SB'), [54] (Commissioner Hampton). A positive finding on each of those elements, and if appropriate, a finding that the circumstances contemplated in s 272(2) of the Act do not apply to the behaviour, must be made out for the Commission to find that an applicant has been bullied at work.[4][4] Ibid [54].Employee

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Because Mr Strachan has not completed the disciplinary procedure against Mr Welsh, I make it very clear that my decision concerns the precise and confined question of whether Mr Welsh has been bullied in the workplace within the meaning of ch 7 of the Act. For this reason, and for the reasons referred to in paragraphs [184]-[186], nothing in this decision should be taken by Mr Strachan, or any authorised delegate of the chief executive officer of the Council, to mean that if Mr Welsh is dismissed, his dismissal would not be harsh, unjust or unreasonable, or not otherwise unlawful.Conclusion Despite the skilful advocacy of Mr Henderson of the Union on behalf of Mr Welsh, for the reasons given above, my view is that in relation to the preliminary investigation, the investigation and the disciplinary procedure, the behaviour of Mr Neylon, Mr Denman, Mr Ball, Mr Watson and Mr Strachan towards Mr Welsh was not repeated, unreasonable behaviour. For these reasons, I cannot be satisfied that Mr Welsh has been bullied in the workplace. I make the following order:The Applicant's application for an order to stop bullying is dismissed.

Ratio Decidendi

Legal Principle Established

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