Application by DQ

[2021] FWC 240

[2021] FWC 240

FAIR WORK COMMISSION

DECISION

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

Application by DQ
(AB2019/213)

COMMISSIONER BISSETT MELBOURNE, 28 JANUARY 2021

Application for an FWC order to stop bullying.

[1] On 20 April 2019 DQ (the Applicant) made an application to the Commission pursuant to s.789Fc of the Fair Work Act 2009 (FW Act) for orders to stop bullying (the Application). The Applicant alleged that she had been bullied by the Named Person (NP). This was denied by the NP. Both the Applicant and the NP were employed at that time by the School.

[2] On 17 May 2019 the Applicant was dismissed from her employment at the School. Following her dismissal the Applicant made an application to the Commission seeking relief from unfair dismissal.

[3] The School subsequently made an application that I dismiss the Application of the Applicant on the grounds that there was no evidence she had been bullied at work but, even if that was found to be the case, the Applicant had been dismissed from her employment with the School. There was, therefore, no risk that she would continue to be bullied at work.

[4] The application by the School was opposed by the Applicant.

[5] On 2 July 2019 I issued a decision 1 in relation to the application of the School. I determined that the Application “will be held pending the determination of the unfair dismissal remedy application. The parties are asked to inform [my chambers] of the outcome of the unfair dismissal application when it is known.”2 I also said that, should the Applicant not be successful in her unfair dismissal application or the matter otherwise settle in a manner which did not involve a return of the Applicant to the School, I would consider any further application by the School that I dismiss the application for orders to stop bullying.

[6] On 1 April 2020 Commissioner Wilson issued a decision 3 in which he found the Applicant had not been unfairly dismissed.

[7] On 3 April 2020 the School made a further application to dismiss the Application on the grounds that it had no reasonable prospect of success. The School advised that the Applicant had not been successful in her unfair dismissal application and therefore there was no risk that she would continue be bullied at work. For this reason the School said the Application had no reasonable prospect of success as the grounds necessary for making the order sort by the Applicant did not exist.

[8] I consequently issued directions for the filing of submissions in relation to the application of the School. Shortly thereafter the Applicant appealed the decision of Commissioner Wilson and, subsequently, my decision of 2 July 2019. As a consequence of these appeals the application of the School made on 3 April 2020 was held over pending the outcome of the appeals.

[9] On 21 December 2020 the Full Bench of the Commission handed down its decision 4 in relation to each of the appeals lodged by the applicant. Each appeal was dismissed. In their decision the Full Bench said of the appeal against my decision of 2 July 2019:

[11] Ms Dai’s appeal grounds and submissions are not, as we understand them, directed to the first decision at all, but concern the merits of her disputation with the School and the second decision.

[12] We decline to grant an extension of time to file the first appeal. No reasonable explanation has been advanced for the delay of approximately nine months in filing the appeal. No contention of appealable error in respect of the first appeal is identifiable in Ms Dai’s notice of appeal or appeal submissions. The first decision was in fact one made in Ms Dai’s favour, so that we do not comprehend why Ms Dai might be aggrieved by that decision.

[13] Accordingly, the first appeal is dismissed as incompetent.

[10] Of the appeal against the decision of Commissioner Wilson in relation to her unfair dismissal application the Full Bench concluded:

[38] We consider that the second decision discloses that the Commissioner took an entirely orthodox approach to Ms Dai’s application, analysed the evidence in detail, made carefully considered findings of fact, and took into account and considered the case advanced by Ms Dai. The result does not manifest an injustice, nor is it counter-intuitive. Ms Dai’s appeal does not raise any issue of importance or general application.

[39] Accordingly, in respect of the second appeal, permission to appeal is refused.

[11] Following from the decision of the Full Bench the School again sought that the Application be dismissed.

Directions

[12] As a result of the request from the School that I determine its application of 3 April 2020 I issued a statement to the parties on 23 December 2020 which said, in part:

[9] Subsequent to the Full Bench’s decision, representatives for the School and [the NP] applied for the anti-bullying application to be dismissed pursuant to section 587 of the Act on the basis that it has no reasonable prospects of success. It was submitted that:

•  [the Applicant] is no longer employed by the School;

•  irrespective of whether [the Applicant] has been bullied at work during her employment with the School, which the School and [the NP] deny, there is no risk that the Applicant “will continue to be bullied at work”; and

•  accordingly, the Commission does not have the power to make an order under section 789FF of the FW Act.

[10] As both the Applicant’s unfair dismissal application and appeal were dismissed, there is no prospect of the Applicant being reinstated to her employment with the School. It therefore follows that the Applicant is not presently being subjected to bullying at work, nor is there a risk she will continue to be bullied at work.

[11] In these circumstances it is my preliminary view that the anti-bullying application will fail and should be dismissed.

[13] Prior to making a final decision I gave the Applicant until 4.00pm Wednesday 13 January 2021 to file any material as to why her application for orders to stop bullying should not be dismissed. The School and the NP were given until 20 January 2021 to provide any submissions in reply. I also indicated that I would make a decision on the basis of the written material filed.

Submissions

[14] From 13 January 2021 until 20 January 2021 the Applicant has sent 8 separate emails in response to my directions. Some of these emails have also been sent to the Presiding Member of the Full Bench which dismissed her appeals and others have been sent to the President of the Commission. The emails have had attached to them substantial documents which, from my perusal, appear to be submissions filed by the Applicant in her appeals.

[15] The Applicant’s submissions can be summarised as follows:

•  The Full Bench was in error in its decision and there was no valid reason for her to be dismissed. She intends to appeal the decision of the Full Bench to the Federal Court and seeks a certificate be issued by the Commission to enable her to do so. For this reason her application for orders to stop bullying should not be dismissed;

•  The Full Bench took account of the wrong documents in making its decision;

•  She never intended to appeal the decision in [2019] FWC 4530;

•  The Application should be kept open;

•  She would be further distressed if her application for orders to stop bullying was dismissed;

•  She seeks access to the Commission’s workplace advice service solicitor she was referred to in 2020;

•  The decision of the Commission of 2 July 2019 should not have the name of the person who bullied her anonymised.

[16] In response, the School and the NP said that I should exercise the discretion available to me under s.587 of the FW Act and dismiss the Application.

[17] The School says that the jurisdictional prerequisites necessary for the making of an order of the type sought by the Applicant do not exist as the Applicant is no longer employed by the School. For this reason there is no risk that she could continue to be bullied at work as she is no longer “at work”.

[18] The School and the NP also said that to allow the application to remain open has no utility. If the Applicant should find herself employed by the School it is open to her to make a fresh application.

[19] To allow the application to remain on foot “would not serve the administration of justice” or be consistent with the need for the Commission to carry out its functions in a manner which is quick. To allow the Application to continue would be detrimental to the School and the NP.

[20] The School and the named person continue to seek to have the names of parties de-identified in any decision.

Legislative framework

[21] In relation to an application for orders to stop bullying the Fair Work Act 2009 states:

789FF FWC may make orders to stop bullying

(1) If:

(a) a worker has made an application under section 789FC; and

(b) the FWC is satisfied that:

(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

(d) any matters that the FWC considers relevant.

[my emphasis]

587 Dismissing applications

(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.

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:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[22] As is readily apparent there are two jurisdictional requirements that must be met before the Commission can consider issuing orders to stop bullying. The conditions are that:

1. The person must have been bullied at work; and

2. There is a risk that the bullying at work will continue.

Consideration

[23] Not long after the Applicant made the Application to the Commission her employment with the School was terminated. In these circumstances the Commission has not been required to determine if the Applicant was, in fact, bullied at work. As I said in my 2019 decision I have not and will not determine this question.

[24] It is abundantly apparent that, arising from proceedings in the Commission, the Applicant will not be re-appointed to her position at the School. Her employment has been terminated, she was found not to have been unfairly dismissed and there is no error in the decision of the Commissioner. The Applicant’s dismissal therefore stands. She will therefore not return to the School. For this reason I accept that there is no risk that she will continue to be bullied at work.

[25] That the Applicant may be considering an appeal to the Federal Court of the decision of the Full Bench does not alter the status of her applications before the Commission.

[26] In relation to the specific matters raised by the Applicant:

•  The Full Bench has issued its decision. While I appreciate that the Applicant might not agree with that decision and is considering appealing it to the Federal Court that is not grounds for me to act other than in accordance with the provisions of the FW Act. Should the Applicant be successful in her intended course and be reinstated to her previous employment and if she is subject to bullying in her employment she may make an appropriate application to the Commission at that time. She is therefore not prejudiced by any decision to dismiss the Application;.

•  It is not my role and not within my powers to review or comment on the decision of the Full Bench. Its decision has been issued and is the end point of the application for unfair dismissal in the Commission;

•  I do not wish to cause the Applicant any distress but that is not the basis on which I must make my decision. As I have said I have not made any decision as to whether bullying occurred and any decision by me to dismiss the Application will not present a barrier to the Applicant making some further application should she return to the workplace and should she consider that she has been bullied;

•  That the Applicant did appeal my 2019 decision has had no bearing on the decision I intend to make in relation to the application now before me;

•  Access by the Applicant to other services that may have been provided in the past do not affect the circumstances before me and which form the basis of the decision I must make.

[27] In relation to the Applicant’s request that names not be anonymised it is not my intention to name the School and it is not necessary, for the purpose of this decision, for me to name the person she alleges bullied her at work. It is not appropriate that I name people not involved in this matter who the Applicant says either engaged in bullying or, she says, were also bullied.

[28] The NP has not had the opportunity to put any case before the Commission in defence of the allegations by the Applicant. It is not necessary that the person be identified for the purposes of this decision and I decline to do so.

[29] In circumstances where the School has a reputation in the community I do not consider it necessary in this decision that it be named for the reasons given in my decision of 2 July 2019. I see no reason to depart from my earlier approach on this question.

[30] Section 587 of the FW Act is set out above. The dismissal of an application is a discretionary decision. Such a decision should be made taking into account all of the circumstances. In this case I am satisfied that it is reasonable for me to exercise my discretion to dismiss the application for orders to stop bullying made by the Applicant.

[31] In circumstances where there is no finding that the Applicant has been bullied at work but where she has been dismissed from the School and there is therefore no risk that any bullying will continue, I am satisfied that the application has no reasonable prospects of success.

[32] I would also observe that it is in the interests of all parties to acknowledge that proceedings in relation to the Application have now come to their natural conclusion. The School needs to be able to put its efforts into educating children and the named person into carrying out her duties and spending time away from work with her family. Likewise the Applicant needs to acknowledge that she has taken her action in respect of the Application as far as it can go. The task of the Commission is not to make some broad finding as to whether bullying occurred some time ago but rather to ensure, through appropriate orders, that bullying directed to an employee who remains at work cease so that employment can continue. The termination of the Applicant’s employment brought an end to any prospect of bullying occurring in the future at work at the School. The Applicant is no longer employed by the School and there is no certainty that she will be in the future.

[33] The circumstances necessary for the Commission to consider making an order as sought in the Application do not exist. It would be futile to continue to hold the application open.

[34] The application for orders to stop bullying is therefore dismissed pursuant to s.587(1)(c) of the FW Act on the grounds that it has no reasonable prospect of success. An order 5 to this effect will be issued with this decision.

COMMISSIONER

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 1   [2019] FWC 4530.

 2   Ibid at [46].

 3   [2020] FWC 758.

 4   [2020] FWCFB 6896.

 5   PR726454.