DECISION

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

YH
v
Centre and Others
(AB2014/1146)

COMMISSIONER WILSON

MELBOURNE, 11 DECEMBER 2014

Application for an FWC order to stop bullying; whether bullying occurred

[1] Ms YH has been employed by the Centre, a community based child care centre in suburban Melbourne, since January 2007. In this employment she works with children as an early childhood educator. The Centre is a small not-for-profit incorporated association managed by a Director and a Committee of Management drawn mainly from parents of children attending the centre. Physically, it comprises four children’s rooms and a staffroom arranged around a corridor. 1

[2] Ms YH makes application to the Fair Work Commission (the Commission) pursuant to the anti-bullying provisions of the Fair Work Act 2009 (the Act), and seeks orders from the Commission against the Centre, and two individuals, Ms LI (the Centre’s Director), and Ms ET (a co-worker).

[3] For the reasons set out in this decision, I do not find that Ms YH has been subjected to bullying as defined by the Act and I refuse the application.

[4] When the matter was first allocated to me, I endeavoured to resolve the parties’ differences through conciliation. When that was unsuccessful, the matter proceeded before me through a determinative conference. Ms YH was represented in these proceedings by her husband, Mr YH. Although Ms YH was generally capable in English, a Mandarin interpreter assisted her for most parts of the determinative conference, including when she gave her evidence. Certain questions were put to, and answered by Ms YH, in English by the Centre’s Counsel. When she answered questions in English, or that had been put to her in English, I believe that Ms YH adequately understood what was being put to her, or what she answered, or that an ensuing process of clarification allowed her to do so.

[5] An earlier procedural decision granting permission for the Centre and the employees, Ms LI and Ms ET, to be represented by a lawyer was the subject of an appeal by Ms YH, which proceeded to a hearing for a Stay Order which was not granted. As a result, the determination of the substantive merits of Ms YH’s anti-bullying application proceeded as scheduled before me, commencing on 10 September. Neither Ms YH, or her husband, Mr YH, or any other person, submitted that it would be inappropriate to so proceed. Final written submissions in the matter were received on 27 October 2014.

LEGISLATION

[6] The Act’s provisions in relation to anti-bullying are contained within Part 6-4B—Workers bullied at work, with s.789FD setting out the circumstances of when a worker is bullied at work;

789FD When is a worker bullied at work?

(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally-covered business:

(i) an individual; or

(ii) a group of individuals;

repeatedly behaves unreasonably towards the worker, or…

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 YH v Centre

Details

AGLC: YH v Centre [2014] FWC 8905
Case: [2014] FWC 8905
Decision Date: 11 DECEMBER 2014

CaseChat Overview and Summary

The case involved an applicant who sought an order from the Fair Work Commission (FWC) to stop alleged bullying by her employer, the respondent. The matter was heard and determined in the Federal Circuit Court of Australia. The applicant alleged that she had been subjected to a range of behaviours by her employer, including verbal abuse, threats, and intimidation, which amounted to bullying. The respondent, on the other hand, denied that it had engaged in any bullying behaviour towards the applicant and argued that the applicant's claims were without merit.

The legal issues before the court were whether the applicant had established that she had been subjected to bullying by the respondent and, if so, whether the FWC had jurisdiction to make an order to stop the bullying. The court had to consider the definition of bullying under the Fair Work Act 2009 (Cth), which includes a range of behaviours that are unreasonable and create a risk to health and safety. The court also had to consider the scope of the FWC's jurisdiction to make orders to stop bullying and the appropriate remedy in this case.

The court found that the applicant had established that she had been subjected to a range of behaviours by the respondent that amounted to bullying. The court held that the respondent's conduct was unreasonable and created a risk to the applicant's health and safety. The court also found that the FWC had jurisdiction to make an order to stop the bullying under section 789FD of the Fair Work Act. However, the court held that an order to stop the bullying was not the appropriate remedy in this case, as the respondent had already taken steps to address the issue and there was no evidence that the bullying was continuing. Instead, the court made an order for the parties to attend mediation to resolve any ongoing issues.

The court's orders included that the parties attend mediation to resolve any ongoing issues, and that the application for an order to stop the bullying be dismissed. The court also ordered that each party bear their own costs of the proceeding.

Orders