Application by McQueen

[2022] FWC 397

[2022] FWC 397

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Application by McQueen

(AB2021/266)

DEPUTY PRESIDENT DEAN CANBERRA, 28 FEBRUARY 2022

Application for an order to stop bullying – application dismissed.

1. On 16 May 2021 Ms Alice McQueen made an application for an order to stop bullying pursuant to s.789FC of the Fair Work Act 2009. Ms McQueen sought an order to be made against three employees of Services Australia whom she claimed had subjected her to bullying and harassment in the course of her employment.

1. I conducted a preliminary conference in this matter on 15 July 2021. It was agreed amongst other things that Ms McQueen would attend a Fitness for Duty assessment (FFD) organised by Services Australia and a further conference be scheduled after this process is completed.

1. On 20 September 2021 Services Australia wrote to the Commission advising that the FFD arranged for 30 August 2021 had been cancelled on Ms McQueen’s request and was rescheduled for 22 October 2021.

1. On 30 November 2021 Services Australia advised that the FFD had again been cancelled after Ms McQueen failed to respond to its request to confirm if she would attend the assessment.

1. Subsequent to this update provided by Services Australia, the matter was listed for a conference on 14 December 2021. At 5:17 am in the morning of 14 December, Ms McQueen sent an email to the Commission advising that she was “not in a fit state to attend any meetings today.”

1. As a result, the conference was vacated and an email was sent to Ms McQueen on 14 December 2021 requesting her to advise when she was able to attend a conference. Ms McQueen did not provide a response and her application has not progressed since.

1. On 16 February 2022 the Commission, after sending an email to Ms McQueen seeking an update, was advised by Services Australia that Ms McQueen had resigned and ceased employment with Services Australia.

1. Following this, the Commission wrote to Ms McQueen on 18 February 2022 advising that if her employment with Services Australia had ended then the Commission has no power to make an order to stop bullying since there can be no risk that she would continue to be bullied at work. Ms McQueen was asked to provide a response by 23 February 2022 as to whether she wished to withdraw the application. She was advised that if no response was received by that time, her application may be dismissed without further notice pursuant to s.587 of the Act.

1. The Commission did not receive any response from Ms McQueen to date.

1. 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.

1. Section 789FF(1) makes clear that Ms McQueen’s application under section 789FC can only be successful if I am satisfied that she has been bullied at work and that there is a risk that the bullying will continue.

1. It is not contentious that Ms McQueen is no longer employed in the workplace where the alleged bullying was claimed to have occurred. It follows that there can be no risk that she will continue to be bullied at work by the named individuals. Hence, the prerequisites in s.789FF of the Act for the Commission to exercise a discretion to make an order to stop bullying are not met.

1. I am therefore satisfied that the application has no reasonable prospects of success.

1. Section 587 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.

1. 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.

1. Accordingly, the application is dismissed.

DEPUTY PRESIDENT

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