Application by Tracey Nagle

[2018] FWC 4876

[2018] FWC 4876

FAIR WORK COMMISSION

DECISION

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

Application by Tracey Nagle
(AB2018/330)

COMMISSIONER SAUNDERS NEWCASTLE, 17 AUGUST 2018

Application for an FWC order to stop bullying.

[1] On 28 May 2018, Ms Tracey Nagle lodged an application for orders to stop bullying (Application) pursuant to section 789FC of the Fair Work Act 2009 (Cth) (Act) in relation to her employment with the Ashford Local Aboriginal Land Council (Ashford).

[2] In a directions hearing before the Fair Work Commission (Commission) on 25 June 2018, the fact that Ms Nagle’s employment with Ashford had come to an end was discussed. Ms Nagle was given until 9 July 2018 to file and serve any submissions she wished to make in relation to the question of whether her Application should be dismissed, in light of the fact that she was no longer employed by Ashford. No such submissions were filed by or on behalf of Ms Nagle.

Legislative framework

[3] 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.”

[4] 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]).

Conclusion

[5] I understand that Ms Nagle commenced unfair dismissal proceedings against Ashford and was seeking the remedy of reinstatement. I do not know the outcome of those proceedings. In the event that Ms Nagle succeeds in those proceedings and is reinstated, she will be able to make a fresh application for orders to stop bullying if she believes there is a risk she will be bullied at work.

[6] In light of the fact that Ms Nagle is no longer employed by Ashford, there is no risk that Ms Nagle will continue to be bullied at work (with Ashford) by any person, or group of persons. 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 cannot be satisfied in this case. In those circumstances, I am satisfied that it is appropriate 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. The Application is dismissed.

COMMISSIONER

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