Application by Holly Ranson
[2022] FWC 1919
•21 JULY 2022
| [2022] FWC 1919 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying and sexual harassment
Application by Holly Ranson
(SO2021/6)
| COMMISSIONER MATHESON | SYDNEY, 21 JULY 2022 |
Application for an FWC order to stop bullying and sexual harassment – application dismissed.
On 13 November 2022, Ms Holly Ranson made an application to the Fair Work Commission (Commission) pursuant to s.789FC of the Fair Work Act 2009 (Cth) (Act). Ms Ranson sought orders against seven employees (Persons Named) of the Commissioner for Public Employment (Employer) whom she claimed subjected her to bullying and harassment in the course of her employment.
Ms Ranson was dismissed from her employment on 2 December 2021. On 15 December 2020, I conducted a conference during which the Employer raised an objection to the application on the basis that Ms Ranson’s employment was terminated effective on 2 December 2021 and that, as such, the Commission could not be satisfied that there was a risk as required by s.798FF(1) of the Act.
However, during the conference, Ms Ranson confirmed that she had filed an application for an unfair dismissal remedy and, as such, I held this matter in abeyance until the determination of that unfair dismissal application, taking into account the possibility of reinstatement.
On 30 June 2022, Commissioner Riordan handed down a decision dismissing Ms Ranson’s application for an unfair dismissal remedy.[1] As such, I listed this matter for case management conference on 11 July 2022.
On 1 July 2022, the Employer sought that the conference listed for 11 July 2022 be cancelled on the grounds that:
· Ms Ranson is no longer in the workplace and is no longer employed in the Northern Territory Fire and Rescue Service, which means that she is no longer at work in a constitutionally covered business as required in s.789FD(1)(a) of the Act;
· as a former employee, the Commission could not be satisfied that bullying or sexual harassment would continue for the purposes of s.789FF(1)(b) of the Act; and
· Ms Ranson lodged an application for relief from unfair dismissal relating to her dismissal for failure to comply with Chief Health Officer directions relating to proof of vaccination status or proof of contraindications to all approved COVID-19 vaccines and, on 30 June 2022, the Commission dismissed her application.
On 1 July 2022, I wrote to the Applicant seeking a response to the Employer’s email by 6 July 2022.
On 7 July 2022, the United Workers Union, representing five of the Persons Named, wrote in support of the Employer’s request that the conference listed for 11 July 2022 be vacated.
On 7 July 2022, my Chambers wrote to Ms Ranson again noting that no response had been received by her and requesting a response. That email noted that the case management conference listed for 11 July 2022 would proceed as listed.
On 7 July 2022, Ms Ranson’s representative emailed my Chambers to advise that it had instructions to vacate the conference and was withdrawing as Ms Ranson’s representative. As such, on 8 July 2022, my Chambers emailed Ms Ranson to seek clarification as to whether she wished to discontinue the application and noted that, if she did not wish to discontinue the application, the conference listed for 11 July 2022 would proceed. Ms Ranson did not respond to that email.
On 11 July 2022, the conference proceeded as listed, however Ms Ranson did not attend the conference. The Commission attempted to contact Ms Ranson when she did not attend the conference and left a voicemail, however Ms Ranson did not return the Commission’s call.
On 11 July 2022, following the conference, my Chambers emailed Ms Ranson and set out my provisional view that the prerequisites in s.789FF of the Act for the Commission to exercise its discretion to make an order did not appear to have been met. I directed the Applicant to provide a response to my provisional view or otherwise advise if she wished to withdraw the application. I also noted that, if no response was received by that time, the application may be dismissed without further notice pursuant to s.587 of the Act and based on the material currently before the Commission.
Ms Ranson did not respond to my Chambers’ emails of 7 July or 11 July 2022 and a further email was sent to the Applicant by my Chambers on 18 July 2022, requesting a response by 20 July 2022. The Applicant did not respond to the email of 18 July 2022.
Section 789FF of the Act provides:
“FWC may make orders to stop bullying or sexual harassment
(1) If:
(a)a worker has made an application under section 789FC; and
(b)either or both of the following apply:
(i)the FWC is satisfied that the worker has been bullied at work by an individual or a group of individuals, and the FWC is satisfied that there is a risk that the worker will continue to be bullied at work by the individual or group;
(ii)the FWC is satisfied that the worker has been sexually harassed at work by one or more individuals, and the FWC is satisfied that there is a risk that the worker will continue to be sexually harassed at work by the individual or individuals;
then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to:
(c)if subparagraph (b)(i) applies--prevent the worker from being bullied at work by the individual or group; or
(d)if subparagraph (b)(ii) applies--prevent he worker from being sexually harassed at work by the individual or individuals; or
(e)if subparagraphs (b)(i) and (ii) apply:
(i)prevent the worker from being bullied at work by the individual or group; and
(ii)prevent the worker from being sexually harassed at work by the individual or individuals.”
Section 789FF(1) of the Act has the effect that Ms Ranson’s application under s.789FC can only be successful if I am satisfied that she has been bullied and/or sexually harassed at work and that there is a risk that this will continue.
Ms Ranson is no longer employed in the workplace where the alleged bullying and sexual harassment was claimed to have occurred. It follows that there can be no risk that she will continue to be bullied or sexually harassed at work by the Persons Named. Hence, the prerequisites in s.789FF of the Act for the Commission to exercise a discretion to make an order are not met. I am therefore satisfied that the application has no reasonable prospects of success.
Section 587 of the Act gives the Commission the power to dismiss an application on a number of grounds:
“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.”
In all the circumstances, I have determined that it is appropriate to exercise my discretion pursuant to s.587(1)(c) of the Act to dismiss the application on the basis that it has no reasonable prospects of success.
Accordingly, the application is dismissed. An order to that effect will be issued.
COMMISSIONER
[1] [2022] FWC 1513.
Printed by authority of the Commonwealth Government Printer
<PR744020>
0
0
0