Application by Hadee Callaghan

[2021] FWC 4444

[2021] FWC 4444

FAIR WORK COMMISSION

DECISION

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

Application by Hadee Callaghan
(AB2021/171)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 23 JULY 2021

Application for an order to stop bullying – no risk of future bullying – application dismissed.

Introduction and background

[1] Ms Callaghan has made an application for orders to stop bullying (Application) pursuant to section 789FC of the Fair Work Act 2009 (Cth) (Act). Ms Callaghan was employed by Woolworths Group Limited as a casual employee in its BWS store located in Forster, New South Wales. Prior to January 2021, Ms Callaghan’s employment with Woolworths Group Limited transferred to Endeavour Group Limited (Endeavour), which was formed as part of a project to separate the alcoholic drinks retail and hotels businesses from Woolworths Group Limited. As a result, the BWS liquor stores are now owned by Endeavour.

[2] In her Application, Ms Callaghan alleges that Mr Troy Fowler, the Manager of the BWS store in which Ms Callaghan worked in Forster, engage in bullying behaviour towards her. Mr Fowler denies those allegations.

[3] Although Mr Adam Locking, Area Manager of BWS, is not identified in Ms Callaghan’s Application as a “person against whom bullying is alleged”, Mr Locking is referred to in the Application and an allegation is made that he did not take any, or adequate, steps to deal with Ms Callaghan’s complaint against Mr Fowler. The remedy sought by Ms Callaghan in her Application is “disciplinary action needs to happen for store manager and area manager”. Mr Locking denies that he engaged in any bullying action towards Ms Callaghan.

[4] The parties have participated in a number of conferences, by telephone, before me in an attempt to resolve the matter. No settlement has been reached.

[5] In written submissions dated 8 July 2021, Endeavour contends that there is no risk that Ms Callaghan will continue to be bullied at work, with the result that her Application has no reasonable prospect of success and should be dismissed for want of jurisdiction. In support of those submissions, Endeavour relied on evidence from Mr Craig Drysdale, Senior Culture and People Partner of Endeavour. Ms Callaghan gave evidence opposing the application for dismissal of her Application.

[6] On 22 July 2021, I conducted a hearing in relation to Endeavour’s contention that Ms Callaghan’s Application has no reasonable prospect of success and should be dismissed.

Legislative framework

[7] Section 789FF(1) of the Act provides as follows:

“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] 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 (Atkinson v Killarney Properties Pty Ltd T/A Perm-A-Pleat Schoolwear and Adrian Palm [2015] FWCFB 6503 at [21]).

Consideration

[9] The relevant facts are not in dispute. Ms Callaghan worked her last shift in a BWS store in January 2021. Ms Callaghan accepts that her casual employment with Endeavour has come to an end.

[10] About four weeks ago, Ms Callaghan moved from the Forster region to Neutral Bay, Sydney. She has applied for employment with BWS in two of its Sydney stores: Kirribilli and Narabeen. As a result of the current COVID-19 epidemic, there are not currently any roles available for Ms Callaghan in either of those BWS stores.

[11] Even if Ms Callaghan were to be employed by Endeavour to work in one of its BWS stores in Sydney, she would not have any interaction with Mr Fowler or Mr Locking. That is because Mr Fowler is the store manager of a BWS store in Forster, New South Wales and the area that Mr Locking manages extends as far south as a BWS store in Newcastle but does not include Sydney.

Conclusion

[12] Having regard to all the circumstances, I am not satisfied that there is any risk that Ms Callaghan will continue to be bullied at work with Endeavour by an individual or group. It follows that one of the pre-requisites in section 789FF of the Act for the Commission to be able to make an order to stop bullying is not satisfied in this case. I have therefore decided to 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.

DEPUTY PRESIDENT

Appearances:

Ms Callaghan on her own behalf
Mr Leon on behalf of the Respondent

Hearing details:

2021.
Newcastle (by telephone):
July 22.

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