Bullying claim against lawyer not vexatious

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Bullying claim against lawyer not vexatious

A board member's bullying complaint about her organisation's chairperson and lawyer was not vexatious, the Fair Work Commission has ruled.

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A board member's bullying complaint about her organisation's chairperson and lawyer was not vexatious, the Fair Work Commission has ruled.

[Full text of this case: WC v Durri Aboriginal Corporation Medical Service [2015] FWC 8618 (15 December 2015)

In June 2015, Ms C applied to the commission for stop bullying orders against two people connected with an organisation she volunteered for; namely, its chairperson and its lawyer. 

The application was dismissed in September of that year, following which the organisation applied for costs against Ms C. It claimed she made the application either vexatiously or without reasonable cause and without reasonable prospects of success.

Ms C was accused of making the application to distract from the organisation’s investigation into its board of directors (Ms C included) and to limit the services rendered by its lawyer.

A matter of discretion for the Commission


Senior deputy president Hamberger noted that under s611 of the Fair Work Act 2009, each party bears its own costs in proceedings but that subsections (2) (a) and (b) empowers the commission to order an applicant to bear some or all of the other party’s costs if the application was made vexatiously or without reasonable cause, or without reasonable prospects of success.  

However, SDP Hamberger also noted that even if one of these subsections is satisfied, the commission is not obliged to order costs. He added: “It is a discretionary decision. The power to award costs... is to be exercised with caution and only in a clear case.” 

He rejected the submission that Ms C’s application had been vexatiously or without reasonable cause, and found no evidence to suggest Ms C did not genuinely feel she was being bullied.

Bullying definition is not in plain English


SDP rejected a further submission that it should have been apparent to Ms C her application had no reasonable prospect of success because only one instance of bullying behaviour was alleged against the organisation’s lawyer.

He explained: 

“[While] the legislative definition of ‘bullied at work’ requires the alleged bully to have repeatedly behaved unreasonably towards the applicant... The anti-bullying jurisdiction is still relatively new and the Act’s definition of ‘bullied at work’ is not a plain-English one.

"Further, even on the limited information Ms [C] has furnished, she identifies the elements of an arguable case against [the] chairperson.”

SDP Hamberger concluded he had no jurisdiction to order costs. He added that if s611(2) had been satisfied, he would as a matter of discretion declined to order costs. Ms C was self-represented, meaning she could not have been expected to appreciate the technical ground on which her claim against the lawyer failed, and there were difficulties arising from the fact her memory was impaired by a brain aneurysm. 

W C v Durri Aboriginal Corporation Medical Service [2015] FWC 8618 (15 December 2015)
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