Application by Eduardo Cabrera Summary

[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

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.

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.

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.

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.

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.

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.
….

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

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

Printed by authority of the Commonwealth Government Printer

In the matter of Eduardo Cabrera, an application was made to the Fair Work Commission seeking an order to stop alleged bullying at his place of work. The respondent, the employer, opposed the application. The dispute centred on the alleged bullying and whether it warranted an urgent intervention by the Commission. The Commission had jurisdiction under the Fair Work Act to hear the matter.

The primary issue for the Commission was whether the applicant had established a serious risk to health and safety due to the alleged bullying, which would warrant an urgent order. The Commission considered the evidence presented by both parties, including witness statements and the nature of the alleged bullying. The Commission also examined whether the employer had taken appropriate steps to address the situation.

The Commission found that the applicant had not demonstrated a serious risk to health and safety, despite the alleged bullying. The Commission noted that while the applicant had experienced distress and discomfort, these factors alone were insufficient to warrant an urgent order. The Commission concluded that the employer had taken reasonable steps to address the situation, including investigating the allegations and attempting to resolve the matter through mediation. The application was dismissed.

The Commission did not make any orders in relation to the application, as it found that the applicant had not met the threshold for an urgent intervention. The Commission did, however, encourage both parties to continue to work towards a resolution of the underlying issues.

Application by Eduardo Cabrera

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established