Application by G.C

[2017] FWC 2845

[2017] FWC 2845

FAIR WORK COMMISSION

DECISION

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

Application by G.C
(AB2016/519)

COMMISSIONER SIMPSON BRISBANE, 23 MAY 2017

Application for an FWC order to stop bullying.

[1] On 27 July 2016, the Applicant made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the Act). The matter was dealt with concurrently with application AB2016/520.

[2] On 17 August 2016 both applications were listed for a Conference which was unsuccessful. The applications were listed for further Conferences on 7 September and 12 October where the parties again were unable to come to a resolution. The matters were subsequently listed for hearing on 21, 22 and 23 November 2016.

[3] At the commencement of the hearing on 21 November, the matters again went into Conference where an in principle settlement was reached between the parties. On 19 December 2016, the Commission was notified by the Applicant in AB2016/520 that the settlement had not been finalised, and that her employment had been terminated. On Monday 20 February 2017, the Applicant in AB2016/520 withdrew her application.

[4] On 23 February 2017 correspondence was sent to the Applicant by email requesting he advise chambers whether he intended to pursue his application. No response was received. On 3 May 2017, my Associate made contact with the Applicant by telephone whereby the Applicant advised his employment had been terminated.

[5] On 4 May 2017, the Commission wrote to both parties advising them of my preliminary view that in the circumstances where an applicant’s employment has been terminated, there is no power for the Commission to make an order to stop bulling and so the application has no reasonable prospect of success and must therefore be dismissed. Parties were invited to make submissions on these views by 11 May 2017.

[6] As at 22 May 2017 no response was received from either party. My Associate made a final attempt to contact the Applicant by telephone which was unsuccessful.

[7] Section 789FF(1)(b) provides that to make an order in this jurisdiction, the Commission must be satisfied that there has been relevant bullying conduct, and further, that there is a risk of further bullying of the applicant at work:

“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.”

[8] There is no dispute the application has been made under s.789FC of the Act. Further, it is clear from the circumstances of the matter that there is presently no risk the Applicant will be bullied at work by the group of individuals against whom he made his application, given that the he has been terminated.

[9] Section 587 gives the Commission the power to dismiss an application on a number of grounds, including where the application has no reasonable prospect of success:

“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.

[10] For reasons set out above I am satisfied there is currently no risk of the Applicant being bullied at work. It necessarily follows that I do not have power to make an order to stop bullying and, as a consequence, I am satisfied that the Applicant’s application has no reasonable prospect of success.

[11] I see no reason in the circumstances why I should not exercise my discretion to dismiss the Applicant’s application given my findings and I do so.

COMMISSIONER

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