Fair Work Act 2009

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

Commissioner for Public Employment T/A Office of the Commissioner for Public Employment and Others

Application for an FWC order to stop bullying - unfair dismissal application lodged - whether absence of future risk means that application should be dismissed - no future risk and no reasonable basis to suggest future risk of bullying of applicant at the relevant workplace - no reasonable prospects of an order being made given the requirements of the Act - no reasonable prospects of success - anti-bullying application dismissed.

[1] On 2 November 2017 Ms Sinem Ketenci made an application to the Fair Work Commission (Commission) pursuant to s.789FC of the Fair Work Act 2009 (FW Act) for orders to stop bullying. Ms Ketenci worked for the Commissioner for Public Employment T/A Office of the Commissioner for Public Employment (OCPE) in Territory Families, based in Alice Springs. The specific order sought by Ms Ketenci was that she be transferred to another Department of the OCPE and be located in Darwin.

[2] The application by Ms Ketenci was subject to conciliation before me. At that stage Ms Ketenci sought that a (separate) process commenced pursuant to s.44 of the Public Sector Employment and Management Act (PSEMA) (Employee performance and inability) be halted pending the resolution of her application for orders to stop bullying. The OCPE declined to do so.

[3] The application did not settle at conciliation and, on 16 January 2018 I issued directions for the filing of evidence and submissions. The application was set down for hearing in the week of 14 May 2018 in Darwin.

[4] On 28 February 2018 Ms Ketenci advised the Commission that her employment had been terminated on 23 February 2018. Ms Ketenci indicated that she intended to make an application pursuant to s.394 of the FW Act for a remedy for unfair dismissal and requested that, until that was resolved, her application for orders to stop bullying be held in abeyance so that, if she was reinstated as she sought, she could continue with her application if necessary (that is, if she was re-appointed to the position she occupied or a similar position where she considered the bullying would continue).

[5] On 5 March 2018 the OCPE indicated that it was of the view that Ms Ketenci's application for orders to stop bullying should be dismissed as she would be unable to satisfy the Commission that she would continue to be bullied at work as she was no longer employed with Territory Families.

[6] The Commission wrote to the parties on 6 March 2018 seeking submissions as to why Ms Ketenci's application should not be dismissed pursuant to s.587(1)(c) of the FW Act.

[7] For the reasons given below I have decided to dismiss Ms Ketenci's application for orders pursuant to s.789FF of the FW Act.

[8] The OCPE submits that the Commission only has jurisdiction to make orders if, amongst other prerequisites, it is satisfied that there is a continued risk of bullying at work. It submits that, given Ms Ketenci's employment has been terminated, there is no risk that she will continue to be bullied at work. In such circumstances it submits that the Commission does not have power to make the order sought by Ms Ketenci and, as a result, the application has no reasonable prospect of success and should be dismissed.

[9] The OCPE notes that Ms Ketenci has made an application for relief from unfair dismissal and has sought reinstatement but submits that it is "speculative and uncertain" that this application will be successful.

[10] The OCPE submits that, if Ms Ketenci is successful in her application for relief from unfair dismissal and if she is reinstated, she is at liberty to make a fresh application and to have that determined in accordance with the requirements of the FW Act.

[11] Ms Ketenci submits that she was bullied at work on "personal, cultural and systemic levels" and that the termination of her employment was not reasonable management action carried out in a reasonable manner.

[12] Ms Ketenci submits that the decision taken by the Chief Executive Officer of Territory Families to dismiss her from her employment pursuant to s.44 and s.46 of the PSEMA was based on a report of a psychiatrist paid for the OCPE (against whom she is taking legal action) and ignored contrary advice from her own psychiatrist.

[13] Ms Ketenci also advised that her application for relief from unfair dismissal did not settle at conciliation and that she ultimately withdrew that application so that she could pursue an application with the Australian Human Rights Commission (AHRC).

[14] Ms Ketenci submits that these two actions may result in her reinstatement to employment. She says that dismissing her application for orders to stop bullying now will disadvantage her "because she would be placed in the "red alert" list to never be employed by the NT Government because of her complaints..."

[15] Ms Ketenci requests that her application not be dismissed but be put on hold for future proceedings.

[16] In reply, the OCPE says that it is unaware of any legal action Ms Ketenci may be pursuing against the psychiatrist or any application she has made to the AHRC. In any event, it submits that the outcome of such proceedings and whether they would lead to reinstatement is speculative and uncertain.

[17] Further, the OCPE submits that there is no "red alert" list as suggested.

[18] Section 587 of the FW Act vests power in the Commission to dismiss an application on certain grounds. The dismissal of an application may be considered on application by a party to a matter before the Commission or on the Commission's own motion.

[19] Section 587 of the FW Act states:

(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...

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

[20] I would observe that the Commission is not limited to dismissing an application only in the circumstances set out in s.587(1)(a)-(c). This much is clear from the words "without limiting when the FWC may dismiss as application..." The Commission is therefore not limited to considering only if the application has no reasonable prospect of success.

[21] Section 789FC of the FW Act provides as follows:

789FC Application for an FWC order to stop bullying

(1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.

(2) For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force.

Note: Broadly, for the purposes of the Work Health and Safety Act 2011, a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.

[22] Section 789FD of the FW Act defines bullying conduct as follows:

(a) while the worker is at work in a constitutionally-covered business:

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.

[23] The capacity of the Commission to make orders is set out in s.789FF 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.

[24] That is, the Commission may issue orders to stop bullying only in circumstances where there is a risk that a worker who has been bullied at work will continue to be bullied at work.

[25] Ms Ketenci is no longer employed with Territory Families. To the extent that Ms Ketenci was bullied at work (and I make no finding or express any view on this) and may satisfy the Commission that the provisions of s.789FF(1)(b)(i) have been met, it will not be possible, in the current circumstances, for the Commission to reach the requisite satisfaction that there is a risk she will continue to be bullied at work and hence that the requirements of s.798FF(1)(b)(ii) have been met. In such circumstances the Commission is unable to issue any order.

[26] Specifically, however, Ms Ketenci seeks not that I continue to hear her application (such that the observations immediately above are not necessarily relevant), but that I put her application "on hold" until such time as she seeks further proceedings at some point in the future. The matter to be determined is therefore whether the Commission should keep the application on foot pending the outcome of proceedings Ms Ketenci has commenced in the AHRC and against the psychiatrist.

[27] On these two matters I would observe, however, that:

• it is not clear how the two sets of proceedings Ms Ketenci has commenced might result in her reinstatement into the workplace such that her application for orders to stop bullying might became a live issue again;

• if Ms Ketenci was reinstated through those proceedings, where within the NT public service this might be; and

• it is not clear how long either or both of these proceedings will take.

[28] In such circumstances, I do not consider that holding the file "for future proceedings" is a reasonable consideration. This is particularly so when there is no bar to Ms Ketenci making a further application in which she may be able to rely on the same historical events (to the extent they remain relevant) should she be returned to the workplace where she says bullying occurred and she considers there is some risk it will occur again.[1]

[29] All parties affected by an application before the Commission deserve certainty in the progress of the application. In the circumstances of this case, holding the file for future proceedings on an unknown timeline will only increase anxiety in the parties in circumstances where the other proceedings are of an indeterminate nature with no indication of when these proceedings might re-commence.

[30] I am not convinced that dismissing Ms Ketenci's application at this point in time will disadvantage her with respect to employment with the Northern territory Government. Even if I did accept that there was a "red alert list" (and I do not) it is not clear how keeping the complaint on hold would place Ms Ketenci on, or ensure she was not placed on, such a list.

[31] In Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines[2] (Shaw v ANZ), Deputy President Gostencnik was dealing with an anti-bullying application where an applicant, Mr Shaw, had been dismissed by the employer. The Deputy President found as follows:

[15] As s. 789FF(b) makes clear, I must be satisfied not only that Mr Shaw has been bullied at work by an individual or group of individuals but also that there is a risk that he will continue to be bullied at work by that individual or group of individuals. Therein lays the difficulty for Mr Shaw. It seems to me that I have no power to make an order to stop bullying unless I can be satisfied relevantly that there is a risk that at work Mr Shaw will continue to be bullied by the individual or group of individuals identified in his application.

[16] It is clear that Mr Shaw is no longer employed by ANZ. The employment relationship has ended. That Mr Shaw is taking steps to seek a remedy in relation to his dismissal and that that may result in reinstatement at some point in the future does not have a bearing on the question that I must answer and is speculative and uncertain. It seems to me clear that there cannot be a risk that Mr Shaw will continue to be bullied at work by an individual or group of individuals identified in his application because Mr Shaw is no longer employed by ANZ and therefore is no longer at work.

[17] It necessarily follows that I do not have power to make an order to stop bullying and, as a consequence, I am satisfied that Mr Shaw's application has no reasonable prospect of success."

[32] Whilst those observations of the Deputy President were made in a slightly different context I consider them applicable to the matter before me. That Ms Ketenci may be reinstated, particularly in circumstances where she is not pursuing an application through the Commission, is highly speculative and uncertain. To put an application before the Commission on hold pending some unknown applications proceeding through processes outside of the Commission is an unreasonable and unfair burden to impose on all parties to the matter.

[33] I am not convinced that dismissing this application will disadvantage Ms Ketenci. She would only be able to pursue it if she was reinstated. It is not clear how dismissing the application will prejudice her in being reinstated should she be successful through the applications she currently has on foot.

[34] I am satisfied that, as Ms Ketenci is no longer employed with Territory Families, that her application for orders to stop bullying should be dismissed pursuant to s.587 of the FW Act. As Ms Ketenci no longer works for Territory Families I am satisfied that her application has no reasonable prospect of success as she cannot satisfy me that there is a risk that she will continue to be bullied at work such that the discretion of the Commission to issue such orders could be enlivened. To the extent that Ms Ketenci seeks that her application be put "on hold" I do not consider that a reasonable course of events in circumstances where there is no prejudice to her in any further application she be reinstated to the Northern Territory public service.

[35] For these reason the application of Ms Ketenci is dismissed pursuant to s.587 of the FW Act. An order[3] to this effect will be issued with this decision.

[1] Obatoki v Mallee Track Health & Community Services and Others [2015] FWCFB 1661, [17].

[2] [2014] FWC 3408.

[3] PR602227.

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