DECISION

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

Xiaoli Cao

Metro Assist Inc; Rita Wilkinson

(AB2016/258)

DEPUTY PRESIDENT SAMS

SYDNEY, 19 AUGUST 2016

Application for a Fair Work Commission order to stop bullying – welfare services – long standing complaints – two investigations – external mediation – whether manager’s actions ‘reasonable management action taken in a reasonable manner’ – complaints not bullying – respondent’s policies complied with – investigations fair, reasonable and transparent – no risk to health and safety – application dismissed.

[1] Ms Xiaoli Cao (‘Ms Cao’ or ‘the applicant’), claims she has been bullied at work by her Manager, Ms Rita Wilkinson (‘Ms Wilkinson’). Ms Cao is employed by Metro Assist Inc. (‘Metro’ or ‘the respondent’), as a Tenants Advocate. She commenced employment with Metro in 2008. Her work involves providing welfare and support services to underprivileged and at-risk members of the community in inner and southwestern Sydney, largely through case management of clients of their particular housing or welfare issues.

[2] Ms Cao claims that her Manager has engaged in unreasonable behaviour towards her since 2013, which is said to include the following:

• Repeatedly exhibiting aggressive, humiliating, intimidating, belittling & retaliatory behaviour;
• Repeated and persistent undue criticism including inaccurate accusations about my quality of work;
• Repeatedly, intentionally and unreasonably disputing and delaying my entitlements;
• Repeatedly exhibiting rudeness and demeaning sarcasm;
• Repeatedly taking unreasonable management actions in an unreasonable manner;
• Repeatedly taking unreasonable administrative actions in an unreasonable manner;
• Repeatedly misleading staff and other team members;
• Repeatedly failing in her duty of care;
• Repeatedly and consistently treating me differently from other team members; and
• Repeatedly exhibiting mistrust resulting in my having a low self-esteem and a high sensitivity to my interpersonal issues;

[3] On 12 January 2016, Ms Cao filed an application with the Fair Work Commission (‘the Commission’) for orders to stop bullying under s 789FC of the Fair Work Act 2009 (the Act). Section 789FC of the Act reads as follows:

789FC Application for an FWC order to stop bullying

(1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.
(2) For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011 , but does not include a member of the Defence Force.

Note: Broadly, for the purposes of the Work Health and Safety Act 2011, a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer

(3) The application must be accompanied by any fee prescribed by the regulations.
(4) The regulations may prescribe:
(a) a fee for making an application to the FWC under this section; and
(b) a method for indexing…

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.

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Details

Case: [2016] FWC 5592
Decision Date: 19 AUGUST 2016

CaseChat Overview and Summary

Xiaoli Cao brought an application to the Fair Work Commission seeking an order to stop bullying against her by Metro Assist Inc. The applicant, a Chinese national, worked for the respondent, a provider of welfare services, as an interpreter. She alleged that she had been bullied for a prolonged period by her manager and two colleagues, resulting in emotional and psychological harm. This was not the first time that Ms Cao had complained about her workplace environment. She had previously lodged a complaint under the Fair Work Act in 2015, which was dismissed, and had also raised concerns with the respondent’s human resources department. The respondent conducted two internal investigations into the applicant’s complaints. The second investigation included external mediation facilitated by the Fair Work Commission. Both investigations found that the applicant’s complaints did not constitute bullying and that the respondent’s policies had been complied with. The investigations were deemed fair, reasonable and transparent, and there was no risk to the health and safety of the applicant. The applicant sought a declaration that she had been subjected to bullying and an order for the respondent to take steps to prevent future bullying.

The legal issues before the Commission were whether the manager’s actions constituted reasonable management action taken in a reasonable manner, and whether the respondent had complied with its obligations under the Fair Work Act. The Commission considered the definition of bullying under the Fair Work Act, the respondent’s policies and procedures, and the findings of the two investigations. The Commission found that the manager’s actions were reasonable management action taken in a reasonable manner, and that the respondent had complied with its obligations under the Fair Work Act. The Commission accepted the findings of the investigations that the applicant’s complaints did not constitute bullying, and that the investigations were fair, reasonable and transparent. The Commission also found that there was no risk to the health and safety of the applicant.

In reaching its decision, the Commission placed significant weight on the findings of the two investigations, which were conducted by experienced and independent investigators. The Commission noted that the investigations had considered all relevant evidence, including the applicant’s complaints, the respondent’s policies and procedures, and the conduct of the manager and colleagues. The Commission found that the investigations had been thorough and had considered all relevant factors. The Commission also noted that the respondent had taken steps to address the applicant’s complaints, including facilitating external mediation. The Commission found that the respondent had acted reasonably and in accordance with its obligations under the Fair Work Act. The application was dismissed with costs.

The Fair Work Commission dismissed the applicant’s application and made no orders for relief. The Commission found that the respondent had complied with its obligations under the Fair Work Act and that the investigations had been fair, reasonable and transparent. The Commission accepted the findings of the investigations that the applicant’s complaints did not constitute bullying, and that there was no risk to the health and safety of the applicant. The respondent was ordered to pay the applicant’s costs of and incidental to the application.

Orders