Amanda (Thuy) Phung v Tricia Farnes, Glen Sblattero, Holmesglen Institute Summary

[2024] FWC 3226

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Amanda (Thuy) Phung
v

Tricia Farnes, Glen Sblattero, Holmesglen Institute

(AB2024/543)

COMMISSIONER MIRABELLA

MELBOURNE, 22 NOVEMBER 2024

Application for an FWC order to stop bullying

On 22 July 2024, Ms Phung applied for an order to stop bullying at work under s.789FC (the Application) of the Fair Work Act 2009 (the Act). The Application was made in relation to the Holmesglen Institute (Holmesglen) and persons with whom Ms Phung worked with while she was at work in the business of Holmesglen.

Ms Phung had been on long term sick leave since May 2023. On 7 November 2024, Ms Phung’s employment with Holmesglen was terminated. Ms Phung submits that a dismissal of the Application is premature. She submits that if she is successfully reinstated as a result of applications made pursuant to legislative provisions regarding bullying, general protections, unfair dismissal or discrimination, bullying in the workplace could continue.

I am not persuaded that Ms Phung’s position will change in the foreseeable future such that she will return to work at Holmesglen. The consequence of termination is that Ms Phung is no longer at work in the business of Holmesglen. Accordingly, there is no present or reasonably foreseeable risk of her continuing to be bullied at work or in the business. The Commission could not make any orders in this matter and for that reason, Ms Phung’s Application has no reasonable prospect of success.[1]

In the circumstances, the appropriate course is to dismiss the application under section 587(1)(c) of the Act.

The application is dismissed.

COMMISSIONER

[1] Shaw v Australian and New Zealand Banking Group Limited & Anor[2024] FWC 3408.

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CaseChat Overview and Summary

Amanda (Thuy) Phung applied to the Fair Work Commission for an order to stop workplace bullying under section 789FC of the Fair Work Act 2009, against Tricia Farnes, Glen Sblattero, and Holmesglen Institute. Ms Phung alleged that she had been bullied while she was employed by Holmesglen, and she sought protection against continued bullying if she were to return to work. Ms Phung had been on long-term sick leave since May 2023, and her employment was terminated on 7 November 2024. Despite this, Ms Phung argued that dismissal of her application was premature, as she might be reinstated through other legislative provisions and therefore remain at risk of continued bullying.

The court had to decide whether the application could proceed given Ms Phung's current employment status. The central issue was whether there was a present or reasonably foreseeable risk of Ms Phung continuing to be bullied at work, given that she was no longer employed by Holmesglen. The Commissioner found that there was no such risk, as Ms Phung was no longer at work in the business of Holmesglen, and her termination of employment meant she could not be bullied at work or in the business. Consequently, the court held that there was no reasonable prospect of success for the application.

The Commissioner dismissed the application under section 587(1)(c) of the Act, finding that there was no present or reasonably foreseeable risk of Ms Phung being bullied at work. The court concluded that the application could not proceed as Ms Phung was no longer in a position to be bullied in the workplace, and the risk of continued bullying was therefore non-existent. The application was dismissed, and no orders were made.

Amanda (Thuy) Phung v Tricia Farnes, Glen Sblattero, Holmesglen Institute

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established