Application by Glenda Smith
[2023] FWC 2801
•25 OCTOBER 2023
| [2023] FWC 2801 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Application by Glenda Smith
(AB2021/306)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 25 OCTOBER 2023 |
Application for an order to stop bullying – no risk that the applicant will continue to be bullied at work – application dismissed.
Ms Glenda Smith made an application for orders to stop bullying (Application) on 31 May 2021 pursuant to section 789FC of the Fair Work Act 2009 (Cth) (Act).
The matter was allocated to my chambers on 8 June 2021 and promptly listed for a preliminary conference by telephone on 17 June 2021. On 15 June 2021 my associate was informed by Ms Smith by telephone that she was not fit to participate in the upcoming preliminary conference. Ms Smith informed the Fair Work Commission (Commission) that she had an upcoming appointment with her General Practitioner on 25 June 2021 and that a decision would be made at that appointment about whether she would be fit to participate in a conference in relation to this matter. On that basis, the conference was vacated.
Ms Smith has consistently responded to our requests for updates in relation to her capacity to participate in a conference in relation to this matter. She has consistently provided workers’ compensation certificates of capacity/certificates of fitness and medical certificates which confirm that given her current “level of functionality and cognitive capacity, she does not have the ability to make a decision relating to her Fair Work Claim.”
I have decided to dismiss the Application for the following reasons.
Ms Smith’s former employer, Fellaton 1 Pty Limited t/a Fella Hamilton, informed the Commission on 29 June 2021 that the Fella Hamilton store at which Ms Smith worked had ceased trading on 26 June 2021. As a result, Ms Smith’s employment with Fella Hamilton came to an end by way of redundancy on 29 June 2021.
I am satisfied on the basis of the information provided to the Commission by both Ms Smith and Fella Hamilton that Ms Smith’s employment with Fella Hamilton has come to an end. It follows that there is no risk of Ms Smith being bullied at work in her employment with Fella Hamilton. If there is no risk that a worker will continue to be bullied “at work by the individual or group”, then one of the pre-requisites in section 789FF of the Act for the Commission to be able to make an order to stop bullying will not be satisfied[1]. Accordingly, I exercise my discretion pursuant to section 587(1)(c) of the Act to dismiss the Application on the basis that it has no reasonable prospects of success.
A draft copy of this decision was sent to Ms Smith, who was given two weeks to comment on it prior to its finalisation. Ms Smith did not make any comment in relation to the draft decision.
I have compassion for Ms Smith and the difficulties she is currently facing and has faced over the last few years. However, in circumstances where Ms Smith has not been employed by Fella Hamilton since 29 June 2021, there is no risk of future bullying in the workplace. In those circumstances, I am satisfied that it is appropriate to exercise my discretion pursuant to section 587(1) of the Act to dismiss the Application.
Conclusion
The Application is dismissed.
DEPUTY PRESIDENT
[1] Atkinson v Killarney Properties Pty Ltd T/A Perm-A-Pleat Schoolwear and Adrian Palm [2015] FWCFB 6503 at [21
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