Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Application for an FWC order to stop bullying - applicant dismissed or at least no longer in employment - application by Employer for stop-bullying application to be dismissed under s.587(1)(c) of the FW Act - whether reasonable prospects of success given statutory requirements for an order to be made - factors for Commission to consider - no relevant future risk - no reasonable prospects of success - application dismissed as matter of discretion.

[1] Ms Ally Hamilton has made an application for a stop-bullying order (the stop-bullying application) under s.789FC of the Fair Work Act 2009 (FW Act). The application contends that a number of individuals engaged by the ALH Group Pty Ltd (ALH) at the Tavern where she was engaged had behaved unreasonably so as to constitute workplace bullying. Those allegations were apparently investigated by ALH and were denied in a response provided to the Commission.

[2] As a result of certain developments that will be outlined below, ALH ultimately applied to have the stop-bullying application dismissed by the Commission under s.587(1)(c) of the FW Act on the basis that it had no reasonable prospects of success (the s.587 application). Put briefly, the s.587 application was founded on the contention that Ms Hamilton was no longer in the workplace and there was no basis to make an order because there was no foreseeable future risk of workplace bullying.

[3] This decision deals with the s.587 application.

1. The developments since the stop-bullying application

[4] At the time of ALH's response to stop-bullying application, the employer indicated, in effect, that Ms Hamilton was a casual employee with 5 weeks service and that on a date prior to the service of the application, had been advised that she would no longer be given any shifts due to concerns about "underperformance and unreliability".

[5] Despite its position in relation to the stop-bullying application, ALH did not raise a jurisdictional objection and agreed to participate in a mediation to be conducted by the Commission, which was organised for 8 March 2019. Ms Hamilton did not participate in the scheduled mediation and made no contact with ALH or the Commission about her circumstances, before or after that time.

[6] Following a request then made by ALH to bring the stop-bullying application to a conclusion, as Panel Head my office made contact with Ms Hamilton by email on 12 March 2019 to ascertain her circumstances and intention regarding the application.

[7] Later on 12 March 2019, Ms Hamilton confirmed by reply email that she:

• Was intending to proceed with the stop-bullying application despite being dismissed from the workplace;

• Still considered that she had been unfairly treated and this had led to financial strain;

• Her phone had been disconnected but was about to be reconnected; and (by implication)

• Had continued access to the email address used by the Commission to make contact.

[8] In the circumstances, a hearing by phone was arranged to deal with the s.587 application and Ms Hamilton's desire to advance the stop-bullying application. As part of the notice of listing provided to both parties, the Commission set out in some detail the basis upon which the s.587 application had been made, the relevant provisions of the FW Act touching upon the capacity of the Commission to make an order, and a summary of some Full Bench decisions dealing with the issues.

[9] At the hearing on 26 March 2019, ALH and the individuals named in application participated along with Mr See (of counsel) who was given permission to appear under s.596 of the FW Act. Ms Hamilton did not call into the hearing and when my office rang her mobile telephone number, after identifying that the call was answered by Ms Hamilton and that the call was being placed by the Commission, the line was disconnected. An immediate follow-up call was not answered and Ms Hamilton was advised by a message that the hearing would proceed and that she could participate by following the instructions previously provided. No subsequent contact has been made by or on behalf of Ms Hamilton.

[10] In the circumstances, I consider that Ms Hamilton has been properly notified of the hearing, given a reasonable opportunity to make submissions or otherwise to be heard, and has been informed of the purpose and considerations relevant to the s.587 application.

[11] The hearing was conducted without participation by Ms Hamilton. This is contemplated as a matter of discretion in s.600 of the FW Act. However, I have had regard to Ms Hamilton's stated intention to proceed with the stop-bullying application.

1. The application to dismiss and the hearing of that matter

[12] ALH contends that the Commission should be satisfied that Ms Hamilton was no longer a worker who would, in the future, be attending the workplace. It had ceased providing Ms Hamilton with shifts, had advised her that no future shifts were to be provided, and had again confirmed the cessation of the employment on 18 March 2019.

[13] Further, ALH contends that as there was no prospect that Ms Hamilton could be subject to future workplace bullying, one of the essential prerequisites for the making of an order under s.789FF of the FW Act could not be met.

[14] In that light, ALH contends that the Commission should dismiss the stop-bullying application as it has no reasonable prospects of success.

[15] The capacity for the Commission to dismiss an application on the basis that it has no reasonable prospects of success is provided by s 587(1)(c) of the FW Act.[1] In the context of a stop-bullying application, this may arise from the preconditions for the making of such an order set out in s 789FF(1) of the FW Act as follows:

(a) a worker has made an application under section 789FC; and

(i) the worker has been bullied at work by an individual or a group of individuals; and

(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;

then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.

[16] In Obatoki[2] the Full Bench was dealing with an application where the applicant worker was no longer in the relevant employment relationship and the anti-bullying application had been dismissed by the Commission. The Full Bench concluded as follows:

"[16] We consider that the Deputy President correctly held that there were no reasonable prospects that the application could succeed. The Commission could not be satisfied that the second of the two jurisdictional prerequisites of s.789FF(1) could be met. There was no evidence before the Commission indicating that there would be a risk that the Appellant would continue to be bullied at work once he ceased to be engaged by Mallee Track and ceased working at its premises or providing services for it. It necessarily follows that no order pursuant to s.789FF(1) could be made and the application had no reasonable prospects of success."

[17] This approach was endorsed by a subsequent Full Bench in Atkinson v Killarney Properties Pty Ltd[3] with what I consider to be an important caveat:

"[35] In this decision, we are not suggesting that it will always be appropriate for the FWC to dismiss a s.789FC application where an employee is dismissed from their employment. Depending on the circumstances in each case there may be a number of relevant considerations, including the prospect of reinstatement through other proceedings, which could warrant the FWC dealing with a s.789FC application notwithstanding the dismissal of the employee."

[18] What this means is that the cessation of the employment or contractual relationship may provide a context in which the stop-bullying application has no reasonable prospects of success. However, the Commission must consider whether there is any other context in which the applicant might, as a worker, be subject to the risk of future workplace bullying conduct in the relevant workplace. Further, the dismissal of an application under s.587 of the FW Act remains a matter of discretion and each case must be considered on its merits. Any attempts by an applicant worker to contest a dismissal or the cessation of the relationship and the impact upon other parties, including the individuals named in the application and the employer/principal, should also be considered.

[19] In this case, the objective material before the Commission confirms that the employment relationship is at an end. Indeed, Ms Hamilton acknowledged on 12 March 2019 that she had been dismissed. The cessation of the relationship, albeit on a different basis, was also subsequently confirmed by ALH on 18 March 2019. In the circumstances, there is also no probable basis upon which Ms Hamilton will return to the workplace in any capacity as a worker. In that regard, I note also that there is no indication that Ms Hamilton has taken any action to contest her "dismissal".

[20] Given these findings there is no reasonable prospect that a basis to satisfy the second limb of s.789FF of the FW Act can be established. This in turn means that there is no reasonable prospect that the stop-bullying application can succeed.

[21] In all of the circumstances, it is appropriate that I exercise the discretion to dismiss the stop-bullying application.

[22] I also note that should, contrary to all existing indications, Ms Hamilton subsequently successfully overturn the cessation of her employment and/or find herself back in the workplace with workplace bullying occurring, a fresh stop-bullying application may be made.

[23] For the reasons outlined above, the stop-bullying application is dismissed under s.587(1)(c) of the FW Act and I so order.

No appearance for or by Ms Hamilton, the applicant.

A See, of counsel (with permission) on behalf of ALH Group Pty Ltd and the individuals named in the application.

[1] See Shaw v ANZ [2014] FWC 3408 at [8] to [11].

[2] Olusegun Victor Obatoki [2014] FWC 8828.

[3] [2015] FWCFB 6503.

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