Fair Work Act 2009

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

Application for an FWC order to stop bullying - applicant no longer employed - no risk of continued bullying at work - no reasonable prospects of success - application dismissed.

[1] Ms Lin (the Applicant) has applied under s.789FC of the Fair Work Act 2009 (the Act) for an order to stop bullying. The application was lodged on 27 October 2016.

[2] I conducted a preliminary conference in the matter on 28 November 2016. Subsequent to the preliminary conference Woolworths Limited Pty Ltd (Woolworths) the Employer/Principal named in the application advised the Fair Work Commission (the Commission) that the Applicant resigned from her employment effective 13 December 2016.

[3] My chambers sought clarification from the Applicant in relation to the resignation of her employment and how she wished to proceed with the application noting that the Commission can only make an order to stop bullying if there is a risk that the worker will continue to be bullied at work. Following an exchange of correspondence with the Applicant, on 17 January 2017 my chambers wrote to the parties and confirmed that Woolworths had advised that the Applicant had resigned from her employment and if this was the case, I had formed the preliminary view that in these circumstances there is no power for the Commission to make an order to stop bullying and that the application therefore has no reasonable prospects of success.

[4] The matter was listed for Mention/Directions Hearing before me on 1 February 2017. The Applicant confirmed during the Mention/Directions Hearing that she had resigned from her employment with Woolworths and directions were set for the filing of materials in relation to whether in these circumstances, that is, where the Applicant has resigned from her employment, whether there is power for the Commission to make an order to stop bullying and whether the application has no reasonable prospects of success and should be dismissed.

[5] The matter was listed for Hearing before me on 29 May 2017. Ms Lin appeared on her own behalf with her Father, Mr Lin and Ms Bowell appeared on behalf of Woolworths. Submissions and materials were filed by the Applicant and by Woolworths. I also gave the parties the opportunity to make further submissions at the hearing. I have considered the evidence and submissions, including the written submissions that were filed and the oral submissions made during the hearing and have taken them into account.

[6] Section 789FF of the 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

[7] Where an application has been made under s.789FC of the Act, the Commission has discretion under s.789FF of the Act to make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent a worker from being bullied at work. However, the Commission must be satisfied that the worker has been bullied at work by an individual or a group of individuals and there is a risk that the worker will continue to be bullied at work by the individual or group.

[8] There is no dispute that the Applicant has made an application under s.789FC of the Act. The question of whether or not the Applicant has been bullied at work has not been determined by the Commission. However, because the Applicant is no longer working at Woolworths, it appears that there cannot be a risk that the Applicant will 'continue to be bullied at work by the individual or group' named in the application. During the hearing the Respondent tendered a Release Agreement signed by the Applicant and Woolworths.[1] The Release Agreement is dated 14 December 2016 and clearly demonstrates that the Applicant resigned from her employment effective 13 December 2016. The Applicant concedes that she signed the Release Agreement however submits that she was forced to resign from her employment with Woolworths. It is not appropriate nor is it necessary for me to determine whether or not the Applicant was forced to resign from her employment with Woolworths and I express no view in relation to this matter. To the extent that it is necessary based on the evidence before me I am satisfied that the employment relationship between the Applicant and Woolworths has ended.

[9] As the Applicant is no longer employed at Woolworths it is necessary to determine whether the Commission should continue to deal with the application or alternatively dismiss the application. Dismissing the application may be appropriate depending upon the circumstances including whether there is a prospect that the worker may return to the workplace through some form of reinstatement order through other proceedings.

[10] Section 789FE of the Act sets out some of the circumstances in which the Commission may dismiss an application made under s.789FC of the Act.[2] None of those circumstances exist in this matter, however, the legislative Note at s.789 (2) of the Act states that "For another power of the FWC to dismiss applications under section 789FC, see section 587". Section 587 of the Act provides as follows:

(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.

(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:

[11] Woolworths submit that if the Commission accepts that the Applicant is no longer employed by Woolworths then the Commission should dismiss the application. Woolworths rely on the Full Bench decision of Atkinson v Killarney Properties Pty Ltd.[3] In this matter the Full Bench considered the decision at first instance of Commissioner Williams where he exercised his discretion under s.587(1)(c) of the Act and dismissed Mr Atkinson's applications on the basis that they had no reasonable prospects of success as his employment had been terminated. The Full Bench concluded that there was no appealable error by the Commissioner in deciding that the applications had no reasonable prospects where one of the pre-requisites in s.789FF of the Act (namely that there is a risk that the worker will continue to be bullied at work) could not be satisfied in circumstances where the Applicant was no longer employed.

[12] The meaning and application of the phrase "no reasonable prospects of success" was canvassed by Deputy President Gostencnik in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank and Another (Shaw v ANZ).[4] In G.C[5] Commissioner Hampton referred to this case and made the following observations in relation to a risk of further bullying and the capacity of the Commission to make an order in circumstances where the employee is no longer employed:

"[165] In Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank and Another (Shaw v ANZ), Gostencnik DP was dealing with an anti-bullying application where an applicant, Ms 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."

[166] With respect, I agree with the Deputy President that the import of s.789FF(1)(b)(ii) is that for an order to be made, the Commission must be satisfied that there is a risk that the (applicant) worker will continue to be bullied at work by the individual or group (found to have bullied the applicant). For my part, where an applicant will no longer be at work with the relevant individual or group, and there is no reasonable prospect of that occurring in some capacity as a worker in the future, in almost all cases it will not be possible for an applicant to demonstrate the future risk requirement. This requires a consideration of the particular circumstances of the parties including the potential to return to the workplace in some capacity as a worker."[6]

[13] In Atkinson v Killarney Properties Pty Ltd[7], a Full Bench of the Commission reviewed the approach taken in Shaw v ANZ and another Full Bench decision Obatoki v Mallee Track Health and Community Services and Others (Obatoki)[8] and concluded as follows:

"[32] We are not persuaded the decisions in Shaw and Obatoki are plainly wrong.

[33] Both Shaw and Obatoki concerned the FWC dismissing a s.789FC application under s.587(1)(c) of the FW Act. In each case, the FWC formed the view that the s.789FC application had no reasonable prospects of success as the applicant was no longer "at work" and, therefore, a pre-requisite for the making of a s.789FF order did not exist. Having formed that view, the FWC then went on to exercise its discretion under s.587(1)(c) of the FW Act to dismiss the s.789FC application.

[34] The Explanatory Memorandum to which Mr Atkinson referred does not suggest that the FWC is required to make a recommendation or express an opinion in respect of an application for an order to stop bullying or to refer a matter to a WHS regulator or another regulatory body. Nor does the Explanatory Memorandum preclude the FWC exercising its power under s.587(1)(c) of the FW Act. Indeed, the note to s.789FE of the FW Act, with which the Revised Explanatory Memorandum is concerned, points out s.587 of the FW Act provides the FWC with power to dismiss a s.789FC application.

[35] In this decision, we are not suggesting that it will always be appropriate for the FWC to dismiss a s.789FC application where an employee is dismissed from their employment. Depending on the circumstances in each case there may be a number of relevant considerations, including the prospect of reinstatement through other proceedings, which could warrant the FWC dealing with a s.789FC application notwithstanding the dismissal of the employee."[9]

[14] Woolworths submit and I agree that it would not always be appropriate to exercise the discretion to dismiss an application in these circumstances and consideration must be given to the circumstances including whether the Applicant had filed proceedings challenging the end of their employment. I have no evidence before me that the Applicant has filed proceedings challenging the ending of her employment and the Applicant confirmed during the hearing that she had not filed other proceedings challenging the ending of her employment. The Applicant made submissions and filed materials about events that occurred prior to the ending of her employment, including the claim that she was forced to resign and other matters. However the matters advanced by the Applicant do not have any bearing upon whether there is power for the Commission to make an order to stop bullying and whether the application has no reasonable prospects of success and should be dismissed

[15] I am satisfied based on the evidence before me that there are no other proceedings on foot which might lead to the reinstatement of the Applicant at Woolworths. It is well established that where there is no foreseeable relevant risk that the Applicant will continue to be bullied at work by the individual or group named in the application, including because the Applicant is no longer engaged as a worker in that workplace and there is no reasonable prospect of this occurring in the future that there is no prospect that an application for an order to stop bullying can succeed.

[16] It is clear that the Applicant is no longer employed by Woolworths. The employment relationship ended on 13 December 2016. There does not appear to be any foreseeable basis which might lead to the Applicant being in the workplace as a worker. It seems clear that there cannot be a risk that the Applicant will 'continue to be bullied at work by the individual or group' named in the application as the Applicant is no longer employed and no longer at work. Therefore I am not satisfied there is a risk that in future the Applicant will be bullied at work.

[17] The relevant authorities outlined earlier in this decision make clear that in the context of a finding that there is no foreseeable future risk that the worker will continue to be bullied at work within the meaning of s.789FF of the Act, and accordingly, no reasonable prospects of success a discretion arises to dismiss an application.

[18] For the reasons outlined above I am satisfied that there is no basis to make an order to stop bullying and therefore that the application has no reasonable prospects of success. It is therefore not appropriate to attempt to further hear the application. I accept and see no reason to depart from the approach adopted by the relevant authorities and I will exercise my discretion to dismiss the application under s.587(1)(c) of the Act on the basis that it has no reasonable prospects of success.

[19] I observe that, the decision to dismiss the application does not preclude the Applicant, should she return to work at Woolworths at some point in the future, from making a new application under s.789FC of the Act, if necessary and if the jurisdictional facts can be established in relation to that application.

[20] An order dismissing the application will be issued in conjunction with this decision.

[2] FWC may dismiss an application under section 789FC if the FWC considers that the application might involve matters that relate to: (a) Australia's defence; or (b) Australia's national security; or (c) an existing or future covert operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police; or (d) an existing or future international operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police.

[3] [2015] FWCFB 6503

[4] [2014] FWC 8828, [8] - [11]

[5] [2014] FWC 6988

[6] [2014] FWC 6988, [165] - [166]

[7] [2015] FWCFB 6503

[8] [2015] FWCFB 1661

[9] [2015] FWCFB 6503, [32] - [35]

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