• [20] Consequently, the hearing on 30 September was vacated and the hearing on 1 October 2021 was converted into a hearing of the Summary Dismissal Application.

• [21] At the hearing the Applicant represented himself. The Named Persons were represented by Mr Luke Maroney. Mr Maroney called Stefania Morisio, Senior Operations Manager of The Northcott Society, as a witness.

• [22] In coming to this decision, the Commission, as presently constituted, has had regard to the filed material (listed below), the oral evidence and other documents tendered during the determinative conference:

Submissions in response to Summary Dismissal Application

• [23] The Respondent's evidence was from its Senior Operations Manager, Ms Stefania Morisio. Ms Morisio's evidence was that Northcott intend to move the Applicant from the Pines.

• [24] I am satisfied that Northcott intend to move the Applicant because a guardian/relative of a resident at the Pines does not want the Applicant caring for their relative. The Applicant considers the relative's demand to be unfair. That may well be the case. However, Northcott is entitled to act upon to the relative's demands about who cares for their loved one.

• [25] It was the evidence of Ms Morisio that the Service Coordinator would therefore no longer have any workplace involvement with the Applicant.[2]

• [26] It was also the evidence of Ms Morisio that Northcott currently proposes to move the Applicant to 26 The Avenue, Thurgoona (Avenue).

• [27] A move to the Avenue would mean that the Area Manager in these proceedings would also no longer have managerial involvement with the Applicant.[3]

• [28] During the hearing Ms Morisio gave evidence about the appropriateness of the Avenue for the redeployment of the Applicant as opposed to other Northcott group homes.[4] The Applicant did not dispute this evidence.

• [29] By reason of the factual matters arising out of Ms Morisio's evidence, the Respondents contend there is no risk that the Applicant will be bullied at work by either of the Named Persons (noting that they deny they have ever done so). It is therefore further contended that there are no reasonable prospects that the Applicant could satisfy the Commission that the Named Persons would pose any future risk to him.[5]

• [30] During the hearing the Applicant conceded that if he were moved from the Pines then there would be no continuing risk to his health and safety from the Named Persons.[6]

• [31] The Respondents further submitted that the conduct of the Area Manager which the Applicant seeks orders against are not addressed in the Applicant's evidence. The Respondents submitted that the Applicant put no evidence before the Commission of any risk caused by any repeated conduct of the Area Manager and therefore there is not sufficient evidence to make out the elements required to be successful in the substantive proceedings.[7] For the reasons already stated I do not need to address this evidentiary matter.

• [32] On 30 September 2021 the Applicant filed a document setting out his opposition to the Summary Dismissal Application.[8]

• [33] The Applicant stated that he does not agree that summarily dismissing his application would be a reasonable outcome for him, having regard to the way that he has been, in his view mistreated by the Respondents. The Applicant contended that summarily dismissing his application seems unlikely to culminate in an end to the matter, but perhaps mark the antecedent to future industrial disharmony.[9]

• [34] Further, the Applicant expressed his disagreement about the transfer from the Pines. He claimed that Northcott had not consulted with him regarding the transfer. However, it is the evidence before this Commission that Northcott wrote to the Applicant on 16 July 2021 in an attempt to consult with him regarding his immediate redeployment from the Pines.[10]

• [35] In Ms LP[11] Commissioner Hampton set out the relevant principles in relation to the power and discretion for the Commission to make orders. He observed,

[21] Having regard to the provisions of the FW Act, there are two prerequisites to the making of orders in matters of this kind. Firstly, a finding that the worker has been bullied at work by an individual or a group of individuals; and secondly, that there is a risk that the worker will continue to be bullied at work by the individual or group concerned.

[22] Accordingly, where there is no risk that the applicant worker will continue to be bullied at work by the individual or group concerned, there is no prospect that the s.789FC application can succeed. Equally, where such a risk is found, the Commission may make an order preventing the worker from being further bullied by that individual or group. This means that any orders must be directed towards the prevention of relevant future unreasonable conduct and be informed by, but not necessarily limited to, the prior unreasonable conduct as found. However, any orders must deal with the actual future risk, based upon appropriate findings, and having regard to the considerations established by s.789FF(2) of the FW Act.

[23] Subject to the above, and the constraint that an order cannot be made requiring payment of a pecuniary amount, the making of an order is a matter of discretion to be exercised judicially in the circumstances of each case.

[24] Accordingly, the power of the Commission to grant an order is limited to preventing the worker from being bullied at work, and the focus is on resolving the matter and enabling normal working relationships to resume in a mutually safe and productive manner.

[25] Orders made in this jurisdiction are enforceable by the Courts as a civil remedy provision. This means that orders should not be made lightly and where they are made, they should be expressed in such a manner that clearly establishes enforceable obligations upon relevant identified parties.

• [36] I respectfully adopt the Commissioner's reasoning.

• [37] In Shehu,[12] Commissioner Lee observed,

[28] It is also important to note that the anti-bullying jurisdiction is not designed to punish persons who have behaved unreasonably towards others in the past. Rather, it is centred on stopping future bullying behaviour and this was reinforced in the Full Bench decision in Re McInnes:[13]

"Importantly, a s.789FF order operates prospectively and is directed at preventing the worker being bullied at work. The Commission is specifically precluded from making an order requiring the payment of a pecuniary amount, hence it cannot make an order requiring a respondent to pay an amount of compensation to an applicant. The legislative scheme is not directed at punishing past bullying behaviour or compensating the victims of such behaviour. It is directed at stopping future bullying behaviour."[14]

[29] In a number of previous decisions, the Commission has taken into account any change in circumstances in the workplace when considering whether there is a risk that the worker will continue to be bullied at work and/or whether it will exercise its discretion to issue an order or not.[15]

• [38] I respectfully adopt the Commissioner's reasoning.

• [39] Having regard to the evidence of Ms Morisio (about the intention of Northcott to move the Applicant so that he is no longer working at the Pines), I am satisfied that circumstances will change when the Applicant is fit to return to work.

1. neither of the Named Persons will have managerial responsibility for the Applicant in the future,
2. there is no risk that the Applicant will be bullied at work by the Named Persons (noting that they deny every having done so), and consequently,

1. there is no prospect that the s.789FC application can succeed.

• [41] For these reasons, I am not satisfied that there is a risk that the Applicant will continue to be bullied at work by the persons named in his application pursuant to s.789FF(1)(b)(ii). Therefore, even assuming that the first jurisdictional prerequisite of s.789FF(1)(b)(i) was satisfied (and I have made no finding of fact about it), there would not be jurisdiction to make an order to stop bullying.

• [42] Because there is no jurisdiction to make an order to stop bullying it necessarily follows that the application has no reasonable prospects of success.

• [43] The application is dismissed pursuant to s.587 of the Act. An order will be issued concurrently with this decision and the Commission will close its file.

[1] Chronology of Alleged Bullying Behaviours (Exhibit 121), at Substantive Court Book p 554.

[2]Summary Dismissal Application (Exhibit 1), at Summary Dismissal Application Court Book p 4.

[3] Witness Statement of Stefania Morisio dated 22 September 2021 (Exhibit 2), at Summary Dismissal Application Court Book p 9.

[5] Summary Dismissal Application (Exhibit 1), at Summary Dismissal Application Court Book p 5.

[7] Summary Dismissal Application (Exhibit 1), at Summary Dismissal Application Court Book p 5.

[8] Response to Summary Dismissal Application dated 30 September 2021 (Exhibit 8), at Summary Dismissal Application Court Book p 17.

[10] Transcript PN41-PN42 and SM-5 dated 16 July 2021 (Exhibit 7), at Summary Dismissal Application Court Book p 16.

[11] [2016] FWC 763.

[12] [2020] FWC 4544.

[13] Re McInnes [2014] FWCFB 1440.

[15] 8 See Re Fsadni [2016] FWC 1286; Darren Lacey and Chris Kandelaars v Murrays Australia Pty Limited and Andrew Cullen [2017] FWC 3136.

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