THDL [2021] FWC 6692 (24 December 2021)

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

Application for a FWC order to stop bullying and sexual harassment

• [1] On 16 November 2021, THDL filed an application in the Commission for an order to stop bullying and sexual harassment pursuant to s.789FC of the Fair Work Act 2009. The application named two individuals employed by a neighbouring business in the same warehouse complex.

• [2] The two named persons and the employer named filed responses. They objected to the application, on grounds that THDL did not meet the definition of 'worker', that THDL was not at work when the alleged bullying and sexual harassment occurred, that they reported THDL to the police and have an intervention order against THDL.

• [3] THDL also alleges to have intervention orders against the name parties. THDL states that they bullied and harassed THDL while at work in THDL's own business which was located in the same warehouse complex.

• [4] I conducted a directions hearing on 23 December 2021, and it was confirmed by all parties that THDL's business moved out of the warehouse complex and there is no likelihood that the parties will cross paths while at work.

• [5] THDL indicated that they were seeking an order to register the two named persons as "bad men."

• [6] The named persons disputed that they had engaged in bullying or sexual harassment and brought to the Commission's attention the detail of the intervention order obtained against THDL.

• [7] While the particulars of THDL's allegations were not confirmed by them, it was unnecessary to do so, having confirmed by all parties present that THDL's business has moved out of the warehouse complex, and the parties no longer have any physical connectivity, where they will cross paths while at work.

• [8] Part 6-4B of the Act was recently amended to include sexual harassment to the Commission's stop bullying orders jurisdiction. The Commission can issue an order to prevent the worker from being bullied or sexually harassed where an application is made under s.789FC and it is satisfied that:

• the worker has been bullied or sexually harassed (or both) by an individual or group of employees; and

• there is a risk that the worker will continue to be bullied at work by the individual or group of employees.

• [9] Section 789FE of the Act permits the Commission to dismiss an application in certain circumstances and also refers to the powers under s.587 to dismiss applications. Relevantly, s.587 provides:

(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

(b) the application is frivolous or vexatious; or

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

• [10] Section 587 provides that the Commission may dismiss an application where there is no reasonable prospect of success, and it may dismiss a matter on application.

• [11] As THDL no longer operates a business in the same warehouse complex, the parties have intervention orders that they are not to be within 200 meters of each other, and there is no prospect of the parties being in the same location while at work, it follows that there is no risk of bullying or sexual harassment and therefore the application has no reasonable prospect of success.

• [12] The meaning and application of the phrase "no reasonable prospects of success" was considered by Deputy President Gostencnik in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines (ANZ)[1]. The Deputy President considered the implication of no reasonable prospect of success in the following terms:

"I would also observe that the answer to the question whether a particular application has no reasonable prospect of success in the context of s. 587 may differ depending on the time at which the question is asked. This, it seems to me, is evident from the word "has". So it is that an application at its inception may have some reasonable prospect of success but, as circumstances change during the course of dealing with an application, those changed circumstances might have the result that an application which once had some reasonable prospect of success no longer has a reasonable prospect of success.[2]

"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.[3]

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. I see no reason in the circumstances why I should not exercise my discretion to dismiss Mr Shaw's application given my finding and I do so."[4]

• [13] Similarly, THDL's place of work is now removed from the location where they submit, that they were subject to bullying and sexual harassment by the two individuals that worked in the same warehouse complex, albeit in a neighbouring business. There is no risk that THDL may be subject to bullying and/ or sexual harassment at work. Consequently, there is no reason I should not exercise my discretion to dismiss THDL's application against the named Respondents.

• [14] For the reasons outlined above I have decided to dismiss THDL's application on the basis that the application has no reasonable prospects of success.

• [15] An order to that effect will be issued.

[1] [2014] FWC 3408

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