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.

[5] The parties are directed to file materials in relation to whether in these circumstances there is a risk that the Applicant will continue to be bullied at work by the persons named in the application and whether there is power for the Commission to make an order to stop bullying (see s.789FF(1)(b)(2)) or whether the application has no reasonable prospects of success and should be dismissed pursuant to s.587 of the Act.

[6] The parties are to note that the materials filed are to be relevant to the extent possible to the matter set out in paragraph 5.

[7] Following the Mention Hearing before me on 7 July 2020, I direct as follows:

1. The Employer is to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions and any witness statements and other documentary material the Employer intends to rely on in this matter, by no later than close of business Tuesday, 21 July 2020.

2. The Applicant is to file with the Fair Work Commission, and serve on the Employer, an outline of submissions and any witness statements and other documentary material the Employer intends to rely on in this matter, by no later than close of business Tuesday, 4 August 2020.

3. The matter will be listed for Hearing before me on Friday, 21 August 2020."

[14] At the hearing, evidence was given by Ms Onesti, the People and Capability Business Partner for the Employer. Her evidence included the following:

3. Ms Shehu has been absent from work since December 2018.

5. Kmart is willing to facilitate transferring Ms Shehu to another store that has no affiliation with Mr Aaron Turner and Mr Benjamin Griffiths, provided that she is medically fit to return to duty and an appropriate opportunity exists in a store that can accommodate her contracted hours.

6. Mr Turner is employed by Kmart as a Store Manager.

7. Mr Turner has been absent from work since February 2020, due to medical reasons.

8. Mr Griffiths is employed by Kmart as Operations Manager.

9. Mr Griffiths no longer works at the Moonee Ponds store and hasn't since March 2020, as he is now the Operations Manager above store headcount, based out of Kmart's Footscray store."[12]

[15] Mr. Duffy, the National Injury and Wellbeing Manager, gave the following evidence:

"3. In the course of my role, I have been dealing with Mr Aaron Turner, Store Manager at Moonee Ponds. Mr Turner has been absent from work since February 2020, due to medical reasons.

4. Mr Turner has expressed to me that he does not wish to return to work at Kmart's

5. Kmart intends to facilitate Mr Turner's proposal and is willing to return him to work in another store that isn't Moonee Ponds when he is fit to return to duty, if he and his treatment team remain agreeable to this."[13]

[16] During the hearing, Ms Onesti gave evidence to the following effect:

• The most recent medical certificate that she had seen has Ms Shehu unfit to return to normal capacity or return to duties until 20 September 2020.

• That Kmart is more than happy to accommodate the request of Ms Shehu to transfer stores to one with no affiliation with Mr Turner or Mr Griffiths, provided that there is a vacancy available.

• That Mr Turner is not currently working at the Moonee Ponds store.

• That Mr Griffiths is not currently working at the Moonee Ponds store.

• Confirming that Mr Turner will not return to the Moonee Ponds store and he has been permanently transferred to our Endeavour Hills Kmart store.[14]

[17] In the Statement filed by the Applicant, various questions are posed such as 'Why has Aaron Turner been absent since February 2020?', 'Why is Mr. Aaron Turner 'unlikely to return' to the Moonee Ponds store?', and 'Why was Mr Ben Griffiths transferred to the Footscray store?'. [15] However, there is no challenge to the evidence that Mr Griffiths has been transferred to Footscray and that the Employer will facilitate Mr Turner returning to work in another store when he returns to work.

[18] I accept the evidence set out above from Ms Onesti and Mr Duffy as truthful and accurate evidence. The evidence is that the likelihood of Mr Griffiths or Mr Turner returning to the Moonee Ponds store is extremely low.

[19] The Applicant provided a witness statement which I have taken into account. Relevant to this consideration the statement of the Applicant sets out:

"26. From 13 December 2018 I have not been working at Moonee Ponds Kmart store due to ill-health

27. Since the said incident on 13 December 2018 I have been seeing my treating Medical Professional ... (refer to Appendix 4 - Medical Certificates and Certificates of Capacity as tendered to Kmart Head Office HR representative Ms Kaitlyn Onesti)

Also refer to the attached appendices (Appendix No.5) Medical Reports from Treating Psychiatrist ...

28. Since the day of my final shift at the Moonee Ponds Kmart store, I have had a nil capacity to work. This is still currently the case - refer to Appendix 6 - current Certificate of Capacity.

32. We are now seeking an order to have formal investigation completed - outcome of whether bullying did occur.

33. We are seeking direction from the Commissioner of FairWork as to whether Bullying did occur.

35. At this stage I am in the hands of My Treating Medical Professionals and have a Nil capacity to work due to the incidences of workplace Bullying, Harassment and Religious Vilification."[16]

• The completion of the Commissioner of fair work initiated circumstance

• Investigation report to determine the evidence of workplace bullying harassment and religious vilification

• The orders in which to protect myself as an employee of Wesfarmers Ltd trading as Kmart Australia

• Upon the completion of the circumstance investigation report and whether the commissioner makes their determination of bullying occurring or not then can a determination be made to initiate and stop bullying order and a general order be made."[17]

[21] The Applicant sought to have a number of other witnesses give evidence. The statements of those witnesses relied on appeared to be the same statements that were given as part of the workers compensation claim proceedings. The content of those statements is directed at evidence as to whether bullying conduct occurred at the relevant time and is not relevant to the matter being determined at this time. In the circumstances I advised that I would have regard to those statements to the extent that they contained anything relevant, but that in the circumstance it was not necessary to call the witnesses nor cross examine them. I have had regard to those witness statements however they do not contain evidence of any significance to the matter I am determining at this point.

[22] The brother of the Applicant, Mr Bajram Zyka, who has regularly appeared as a support person to the Applicant in the proceedings, was involved in the proceedings. The Applicant commonly deferred to her brother to speak on her behalf and did so in these proceedings. Mr Zyka was asked by me to comment on the evidence led by the Employer. His response was as follows:

"In terms of moving the others, we note that. In terms of the offer from Kmart, given Aferdita's current medical capacity which is nil, I understand, if I can get the name right, Caitlyn Onesti did state something to the effect of, should there be a position available. Now the question is, is there a position available and what is Kmart's position of that? How is that going to look moving forward for Aferdita and her family?

Because at this stage, Aferdita's got a nil capacity, she has been significantly impacted mentally and physically and so has her family life."[18]

[23] I then asked Mr Zyka about the Applicant's capacity to work including an update on when she might be likely to return to work, to which Mr Zyka replied:

"At the moment, it's nil. At the moment, Ms Shehu can't even do the basic house duties. She's been significantly incapacitated and the biggest thing is, Commissioner, should an imminent return to Kmart or an affiliated brand, let's say Kmart in this instance, be imminent, she doesn't know what the future holds. She's fearful for what lays ahead, because of the significant impact it's had upon her.

At this stage, she doesn't know. Her medical practitioners are doing what they can, but at this stage, it's been a long-protracted matter that no one really knows what the future holds because of how much its impacted on her."[19]

[24] Mr. Zyka was also concerned that the investigation that the Employer was to undertake into the allegations had not been completed.[20] I note that during the earlier conferences I conducted, it was agreed that an external investigator would investigate the allegations of bullying. The Employer advises they have engaged an investigator to undertake that task, however:

"The Employer is unable to investigate the Applicant's allegations of bullying by Mr Turner or Mr Griffiths, as neither employee is currently in the workplace. On this basis, the Employer maintains that no findings of bullying, as alleged by the Applicant, have been substantiated."[21]

[25] In any case, the Employer submits that even if the Applicant's allegations of bullying were substantiated, there is no risk:

"... the Employer submits that if the Applicant's allegations of bullying were substantiated, there is no risk that she will continue to be bullied at work by the persons named in the application because:

(a) the Applicant maintains that she is medically unfit to return to her duties at the Employer's Moonee Ponds store and there is no certainty as to when she will be able to return to the workplace;

(b) Mr Turner remains on a leave of absence from the Moonee Ponds store since February 2020 due to medical grounds and is unlikely to return to the Moonee Ponds store;

(c) Mr Griffiths no longer works at the Moonee Ponds store; and

(d) the Employer is willing to transfer the Applicant to another store."[22]

[26] In a previous decision Mekuria,[23] I set out the relevant principles drawing on a decision of Commissioner Hampton in Ms LP and I repeat the relevant parts of the decision below:

"In Ms LP Commissioner Hampton set out the relevant principles in relation to the power and discretion for the Commission to make orders as follows and I adopt them:

"[19] Section 789FF of the FW Act provides 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.

(2) In considering the terms of an order, the FWC must take into account:

(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body - those outcomes; and

(b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes - that procedure; and

(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes - those outcomes; and

[20] The Fair Work Amendment Bill 2013 Revised Explanatory Memorandum explained the provisions as follows:

"New section 789FF - FWC may make orders to stop bullying

119. New subsection 789FF(1) empowers the FWC to make any order it considers appropriate to prevent a worker from being bullied at work by an individual or group of individuals. Before an order can be made, a worker must have made an application to the FWC under new section 789FC and the FWC must be satisfied that the worker has been bullied at work by an individual or group of individuals. There must also be a risk that the worker will continue to be bullied at work by the individual or group. Orders will not necessarily be limited or apply only to the employer of the worker who is bullied, but could also apply to others, such as co-workers and visitors to the workplace. Orders could be based on behaviour such as threats made outside the workplace, if the threats relate to work.

120. The power of the FWC 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. The FWC cannot order reinstatement or the payment of compensation or a pecuniary amount.

121. Examples of the orders that the FWC may make include an order requiring:

• the individual or group of individuals to stop the specified behaviour;

• regular monitoring of behaviours by an employer;

• compliance with an employer's workplace bullying policy;

• the provision of information and additional support and training to workers;

• review of the employer's workplace bullying policy.

122. New subsection 789FF(2) provides that, when considering the terms of the order, the FWC can take into account any factors that it considers relevant, but must have regard to the following (to the extent that the FWC is aware):

• any final or interim outcomes of an investigation into the matter that is being undertaken by another person or body;

• any procedures available to the worker to resolve grievances or disputes;

• any final or interim outcomes arising from any procedures available to the worker for resolving grievances or disputes.

123. These factors may be used by the FWC to frame the order in a way that has regard to compliance action being taken by the employer or a health and safety regulator or another body, and to ensure consistency with those actions."

[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." [24]

[27] In Mekuria, I also made the following observation, which is no less relevant to this application:

"It is important that all those involved in this matter understand that the Commission only has the jurisdiction to make an order to stop bullying where it is satisfied that a worker has been bullied at work by an individual or group and the Commission is satisfied there is a risk that the worker will continue to be bullied at work by the individual or group."[25]

[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:[26]

"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." [27]

[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.[28]

[30] As outlined above, the circumstances surrounding this matter are:

[31] The Applicant has not been at work for over 18 months, remains totally incapacitated and there is no indication as to when she may return to work. If the Applicant does not return to work, there is, for that reason alone, no risk that she will continue to be bullied at work.

[32] However, even if the Applicant was to be able to return to the workplace, Mr Griffiths no longer works at the Moonee Ponds store where the Applicant is located. In those circumstances, I am not satisfied that there is a risk that the Applicant will continue to be bullied, if she ever was, by Mr Griffiths.

[33] Mr Turner, who has not been at work since February 2020 on medical grounds, does not want to return to the Moonee Ponds store, and should he return, the Employer will facilitate his move to another location. In those circumstances I am not satisfied that there is a risk that the Applicant will continue to be bullied at work by Mr Turner.

[34] I note that it is possible that aspects of the alleged behaviour of Mr Griffiths did amount to bullying behaviour. In respect of Mr Turner, even accepting the Applicant's evidence that what Mr Turner did was to contact the store manager when she asked for workload relief, this can hardly be considered bullying behaviour.

[35] However, to be absolutely clear, I am not in this decision making any finding as to whether there was bullying behaviour or not. This decision is predicated on an assumption that, the bullying conduct as alleged by the Applicant was in fact occurring, and then considering whether the changed circumstances referred to above mean that there is not a risk that the Applicant will continue to be bullied.

[36] I am satisfied on the evidence that there is no risk of the Applicant continuing to be bullied at work having considered the evidence of the changed circumstances set out above, those circumstances being that the persons named are not working at the Moonee Ponds store and are extremely unlikely to work there again. Further, the Employer is willing to facilitate the Applicant's transfer to another store if that is what the Applicant desires.

[37] 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 her application pursuant to s.789FF(1)(b)(ii). Therefore, even assuming that the first jurisdictional prerequisite of s.789FF(1)(b)(i) was satisfied, there would not be jurisdiction to make an order to stop bullying.

[38] As there is no jurisdiction to make an order to stop bullying the application has no reasonable prospects of success. The application is therefore dismissed pursuant to s.587 of the Act. An order will be issued concurrently with this decision and the file will now be closed.

[1] Form F73 - Response from an employer/principal to an application for an order to stop bullying at Q4.

[2] Psychiatrist Report dated 4 May 2020 and Certificate of Capacity dated 23 July 2020.

[3] Form F73 - Response from an employer/principal to an application for an order to stop bullying at Q4.

[5] Letter to the Fair Work Commission dated 14 December 2019.

[6] Supplementary document to Form F72 - Application for an order to stop bullying, "Conciliation Conference - Outcome Sought".

[7] From F72 - Application for an order to stop bullying at Q7.

[8] Letter to Mr Ryan dated 7 January 2019.

[12] Statement of Caitlyn Onesti dated 20 July 2020.

[13] Statement of Connor Duffy dated 20 July 2020.

[15] Statement of Aferdita (Rita) Shehu dated 4 August 2020.

[16] Ibid at paragraphs 26 - 28 and 32 - 35.

[21] Employer's Outline of Submissions.

[23] Mekuria [2018] FWC 6486.

[24] Ms LP [2016] FWC 763.

[25] Mekuria [2018] FWC 6486 at paragraph [37].

[26] Re McInnes [2014] FWCFB 1440.

[28] 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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