Fair Work Act 2009

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

Application for an FWC order to stop bullying - where applicant no longer employed by the employer - whether the Commission has jurisdiction to hear the application - no reasonable prospects of success - application dismissed

[1] On 17 June 2020, the Applicant made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the Act).

[2] On 21 July 2020, a staff member from the Fair Work Commission anti-bullying team contacted the Applicant and held a preliminary discussion where the Applicant confirmed she was resigning, however wished to proceed with the application.

[1] On 3 August 2020, the Applicant wrote to the Commission and confirmed she had resigned from her employment and was no longer in the workplace. On 4 August my Associate contacted the Applicant who again confirmed she wished to proceed with the application.

[2] On 6 August 2020, the Employer sent an email to chambers that read as follows:

"...Given Ms Stewart has resigned and will not be returning to the Respondent's workplace (and she has employment elsewhere), the Respondent considers that the Ms Stewart's application has no reasonable prospects of success (as the Commission now has no power to make any relevant order) and respectfully requests that the Commission dismiss this matter in accordance with section 587 of the Fair Work Act 2009 (Cth)..."

[3] On 18 August my chambers sent correspondence to all parties as follows:

"...I refer to the above matter and below correspondence from the Employer requesting that the matter be dismissed.

The Commissioner notes that the Applicant is no longer employed with the company. It is the Commissioner's preliminary view that in these circumstances, there is no longer a risk to the Applicant being bullied at work and that there is no power for the Commission to make an order to stop bullying and so the application has no reasonable prospect of success.

In light of this, the Commissioner has requested that the Applicant please advise the Commission, and the Employer Principal, whether you intend to formally withdraw application AB2020/394.

Alternatively, the parties are invited to make submissions on the views expressed above before these matters are decided. Your submission should be provided either by email to [email address redacted].

Please provide a response as soon as possible, but by no later than 5:00pm Tuesday 25 August 2020..."

[4] As of today, no submissions have been received from either party in relation to this matter.

[5] Section 789FF(1)(b) provides that to make an order in this jurisdiction, the Commission must be satisfied that there has been relevant bullying conduct, and further, that there is a risk of further bullying of the applicant at work:

(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."

[6] It is clear from the circumstances of the matter that there is presently no risk the Applicant will be bullied at work by the group of individuals against whom she made her application, given she is no longer employed by the Employer and no longer attends the workplace. Further there is no evidence to suggest there is a risk that the Applicant will continue to be bullied at work.

[7] For these reasons I find that the application has no reasonable prospects of success.

[8] Section 587 gives the Commission the power to dismiss an application on a number of grounds, including where the application has no reasonable prospect of success:

(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.

[9] I see no reason in the circumstances why I should not exercise my discretion to dismiss the Applicant's application given my findings and I do so. As such, the Conference listed for 31 August will be vacated.

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