Application by Eduardo Cabrera

[2024] FWC 2481

[2024] FWC 2481

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Application by Eduardo Cabrera

(AB2024/489)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 12 SEPTEMBER 2024

Application for an FWC order to stop bullying

1. On 27 June 2024 Mr Cabrera made an application for an order to stop bullying under
   s 789FC of the Fair Work Act 2009 (Cth) (Act). The application was made in relation to Parnham Group Pty Ltd and a person with whom Mr Cabrera interacted while he was at work.

1. Following a conference convened before me, on 23 August 2024 Mr Cabrera informed my chambers that his employment had ended on 16 August 2024. On 25 August 2024, the respondent confirmed that Mr Cabrera’s final date of employment was 16 August 2024. Accordingly, it is not in dispute that there is no ongoing employment relationship between the parties.

1. On 30 August 2024 I invited the parties to each file responsive submissions in relation to my preliminary view that Mr Cabrera’s application should be dismissed pursuant to s 587 of the Act. Each of the parties filed written material addressing this matter.

1. Mr Cabrera advised in his submission that he has lodged a general protections application in the Commission against the respondent. This was subsequently confirmed by the respondent, including that the application lodged is a general protections application involving dismissal and made pursuant to s 365 of the Act.

1. Section 789FF of the Act sets out when the Commission may make an order to stop bullying. It relevantly provides that the Commission must be satisfied both that (a) the worker has been bullied at work, and (b) there is a risk that the worker will continue to be bullied at work.

1. Section 587 of the Act provides the Commission with the power to dismiss an application on its own initiative or upon application. It relevantly provides as follows:

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.

….

1. It is not in dispute that the employment relationship between the parties has ceased. In such circumstances, I cannot be satisfied of the matter at [5](b) above, that there is a risk that Mr Cabrera will continue to be bullied at work. Accordingly, the Commission is not empowered to make an order to stop bullying. It follows that I am satisfied that the application has no reasonable prospects of success.[1] The appropriate course is to dismiss the application under
   s 587(1)(c) of the Act.

Order and disposition

1. The application is dismissed.

DEPUTY PRESIDENT

[1] Shaw v Australia and New Zealand Banking Group Limited t/a ANZ Bank; Bianca Haines[2014] FWC 3408

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