Fair Work Act 2009_

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

Application for an FWC order to stop bullying -Applicant no longer working with Respondent - no risk of continued bullying at work - application for order to stop bullying dismissed on the basis of no reasonable prospect of success.

[1] On 5 August 2014 Mr Stephen Jackson (the Applicant) filed an application under s.789FC of the Fair Work Act 2009 (the Act) seeking an order to stop bullying in accordance with Part 6-4B of the Act. In his application, Mr Jackson alleged that he had been bullied by the President - Mr Jon Anderson, five Board Members and the Bookkeeper - Ms Ania Tomaszewska, of the Armidale Club (his employer).

[2] Mr Jackson alleges that verbal bullying occurred at a Board Meeting on 19 May 2014 and an Extraordinary Board Meeting on 26 May 2014 and that the bullying continued through a series of emails from 19 May 2014.

[3] A telephone conference was held with Mr Jackson on 9 September 2014. A telephone conference was held with Mr Anderson, representing himself, the Board Members and Ms Tomaszewska.

[4] The Commission received email correspondence from Ms Jenny Campbell, Secretary, on behalf of the Board of the Armidale Club, date 11 December 2014 stating that Mr Jackson's employment had been terminated as at 27 November 2014.

[5] Correspondence was sent from my Chambers to Mr Jackson and copied to the Armidale Club, on 16 December 2014, as follows:

'Senior Deputy President Hamberger requests that you confirm the status of this application and the next steps to be taken.

The Commission understands that the employment relationship has concluded and that you no longer have any work contact with the persons named.

This raises a potential jurisdictional issue concerning the power of the Commission to make an order pursuant to s.789FF of the Fair Work Act 2009. That is, there needs to be consideration as to whether there is a risk of further bullying of the applicant at work by the individuals concerned. This arises from s.789FF(b)(ii) and the requirement that there be a risk that the worker (the applicant) will continue to be bullied at work by the individuals concerned.

The following decisions relate to this jurisdictional issue and should be considered by the parties in this matter:

Shaw v ANZ [2014] FWC 3408

Olusegun v Mallee Track Health & Community Services and Others [2014] FWC 8828

In light of the above, the Commission invites the applicant to provide reasons why the Commission should not dismiss this application.'

[6] No response has been received from Mr Jackson or the respondent.

[12] The relevant provisions of the Act are set out below.

(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.'

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

[7] Where an application is made under s.789FC of the Act, the Commission has the discretion under s.789FF of the Act to make any order it considers appropriate (other than an order requiring the payment of a pecuniary amount) to prevent the worker from being bullied at work. However, the Commission can only exercise that discretion where it is satisfied that:

(ii) there is a risk that the worker will continue to be bullied at work.

[8] There is no dispute that Mr Jackson has made an application under s.789FC of the Act. The question of whether or not Mr Jackson has been bullied at work is yet to be determined by the Commission. However, given that Mr Jackson is no longer working at the Armidale Club there is clearly no risk that Mr Jackson will continue to be bullied at work by the Respondents.

[9] The question becomes whether the Commission should continue to deal with the application or alternatively dismiss the application. To continue to deal with the application in circumstances where the Commission does not have the power to make an order because one of the threshold requirements can no longer be met would place an unnecessary burden on the parties. Therefore consideration needs to be given to dismissing the application.

[10] Section 789FE(2) of the Act sets out some of the circumstances in which the Commission may dismiss an application made under s.789FC of the Act. None of those circumstances exist in this case. However, the legislative Note at s.789(2) of the Act states that "For another power of the FWC to dismiss applications under section 789FC, see section 587."

[11] Section 587(1) of the Act sets out a number of grounds on which the Commission may dismiss an application. The most relevant clause in that Section for consideration are:

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(c) the application has no reasonable prospects of success.

[12] The meaning and application of the phrase "no reasonable prospects of success" was canvassed by Deputy President Gostencnik in Shaw v ANZ [2014] FWC 3408. The circumstances in ANZ are similar to those in the matter before me in that the applicant in that case, Mr Shaw, was dismissed prior to his application under s.789FC of the Act being determined by the Commission.

[13] Given the similarity of the circumstances in this matter and ANZ, I see no reason to depart from the approach adopted by Deputy President Gostencnik in ANZ and will dismiss the application on my own initiative.

[14] For the reasons outlined above I have decided to dismiss Mr Jackson's application on the basis that it has no reasonable prospects of success. An order to that effect will be issued with this decision.

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