DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Ally Renee Hamilton
(AB2019/70)

COMMISSIONER HAMPTON

ADELAIDE, 27 MARCH 2019

Application for an FWC order to stop bullying – applicant dismissed or at least no longer in employment – application by Employer for stop-bullying application to be dismissed under s.587(1)(c) of the FW Act – whether reasonable prospects of success given statutory requirements for an order to be made – factors for Commission to consider – no relevant future risk – no reasonable prospects of success – application dismissed as matter of discretion.

1. What this decision is about

[1] Ms Ally Hamilton has made an application for a stop-bullying order (the stop-bullying application) under s.789FC of the Fair Work Act 2009 (FW Act). The application contends that a number of individuals engaged by the ALH Group Pty Ltd (ALH) at the Tavern where she was engaged had behaved unreasonably so as to constitute workplace bullying. Those allegations were apparently investigated by ALH and were denied in a response provided to the Commission.

[2] As a result of certain developments that will be outlined below, ALH ultimately applied to have the stop-bullying application dismissed by the Commission under s.587(1)(c) of the FW Act on the basis that it had no reasonable prospects of success (the s.587 application). Put briefly, the s.587 application was founded on the contention that Ms Hamilton was no longer in the workplace and there was no basis to make an order because there was no foreseeable future risk of workplace bullying.

[3] This decision deals with the s.587 application.

2. The developments since the stop-bullying application

[4] At the time of ALH’s response to stop-bullying application, the employer indicated, in effect, that Ms Hamilton was a casual employee with 5 weeks service and that on a date prior to the service of the application, had been advised that she would no longer be given any shifts due to concerns about “underperformance and unreliability”.

[5] Despite its position in relation to the stop-bullying application, ALH did not raise a jurisdictional objection and agreed to participate in a mediation to be conducted by the Commission, which was organised for 8 March 2019. Ms Hamilton did not participate in the scheduled mediation and made no contact with ALH or the Commission about her circumstances, before or after that time.

[6] Following a request then made by ALH to bring the stop-bullying application to a conclusion, as Panel Head my office made contact with Ms Hamilton by email on 12 March 2019 to ascertain her circumstances and intention regarding the application.

[7] Later on 12 March 2019, Ms Hamilton confirmed by reply email that she:

• Was intending to proceed with the stop-bullying application despite being dismissed from the workplace;

• Still considered that she had been unfairly treated and this had led to financial strain;

• Her phone had been disconnected but was about to be reconnected; and (by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ally Renee Hamilton

Details

AGLC: Ally Renee Hamilton [2019] FWC 1816
Case: [2019] FWC 1816
Decision Date: 27 MARCH 2019

CaseChat Overview and Summary

The matter involved Ally Renee Hamilton, an applicant seeking an order from the Fair Work Commission to stop workplace bullying. The employer opposed the application on the grounds that the applicant had either been dismissed or was no longer in employment, and thus there was no relevant future risk of bullying. The employer requested the application be dismissed under section 587(1)(c) of the Fair Work Act. The central issue before the court was whether the application had reasonable prospects of success, considering the statutory prerequisites for the making of an order and the factors the Commission should consider in exercising its discretion.

In addressing the legal issues, the court examined whether the applicant had fulfilled the necessary conditions for the Fair Work Commission to grant a stop-bullying order. Key considerations included whether the applicant had a reasonable belief that they were being bullied, if the alleged bullying had occurred in the workplace, and if there was a future risk of such bullying. The court also took into account the Commission's discretion in such matters, weighing the factors against the likelihood of the applicant succeeding in their application. The court found that, given the applicant was no longer in employment and there was no relevant future risk of bullying, the application lacked reasonable prospects of success.

The court held that the application did not meet the threshold for reasonable prospects of success as there was no future risk of bullying to the applicant. Consequently, the court dismissed the application as a matter of discretion under section 587(1)(c) of the Fair Work Act. The court emphasised that, while the applicant had raised legitimate concerns about workplace bullying, the lack of a relevant future risk meant the application could not proceed. The decision underscored the importance of future risk in the context of workplace bullying applications.

No further orders were made as the dismissal of the application was sufficient to conclude the matter. The court's decision highlighted the necessity for applicants to demonstrate a relevant future risk when seeking a stop-bullying order under the Fair Work Act.

Orders