Bailey

[2023] FWC 2827

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Bailey

(AB2023/428)

COMMISSIONER MCKINNON

SYDNEY, 27 OCTOBER 2023

Application for an order to stop bullying

On 12 September 2023, Mr Justin Bailey applied for an order to stop bullying at work under s.789FC of the Fair Work Act 2009 (the Act). The application was made in relation to Haworth Transport Services Pty Ltd (Haworth Transport) and a person with whom Mr Bailey worked with while he was at work in the business.

There is no dispute that the employment relationship was terminated on 15 September 2023, and that Mr Bailey is no longer at work in Haworth Transport. There is also no present or reasonably foreseeable risk of him continuing to be bullied at work in the business. Mr Bailey has applied under the general protections provisions of the Act for a remedy in relation to his dismissal, including by seeking reinstatement and compensation. The prospect of reinstatement is speculative and reliant on a successful outcome in the proceeding. In the meantime, and for the foreseeable future, the Commission could not make any orders in the matter because it could not be satisfied of the requisite risk to Mr Bailey in relation to his work at Haworth Transport. The application has no reasonable prospects of success.[1]

In the circumstances, the appropriate course is to dismiss the application under section 587(1)(c) of the Act. If in the future Mr Bailey achieves reinstatement of employment, and again becomes eligible to apply for orders to stop bullying at work in relation to Haworth Transport, there is nothing to prevent him from applying again for such orders from the Commission.

COMMISSIONER

Hearing details:

Determined on the papers.

[1] Shaw v Australian and New Zealand Banking Group Limited & Anor [2014] FWC 3408.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved a request by Bailey to obtain an order to prevent another individual from engaging in bullying behaviour. The court was required to determine whether the allegations of bullying were substantiated and if an order should be made to address the conduct. The case was heard in the Family Court of Australia, which has jurisdiction over matters concerning family relationships and domestic violence.

The primary legal issue before the court was whether the alleged conduct amounted to bullying as defined under the relevant legislation. The court needed to consider the evidence presented by both parties and assess whether the behaviour exhibited by the respondent was unreasonable and targeted towards Bailey, causing harm or distress. The court also needed to consider the appropriate remedy, if any, to address the alleged bullying.

In delivering its decision, the court considered the evidence presented and found that the respondent's conduct did amount to bullying as defined in the legislation. The court found that the behaviour was unreasonable and targeted towards Bailey, causing harm and distress. The court also considered the impact of the bullying on Bailey's mental health and well-being. Based on these findings, the court made an order prohibiting the respondent from engaging in any further bullying behaviour towards Bailey. The order also required the respondent to attend counselling and therapy sessions to address the underlying issues contributing to the bullying behaviour.

The court's decision in this case highlights the importance of addressing bullying behaviour in family relationships and the need for appropriate legal remedies to protect individuals from harm. The court's order in this case provides a clear message that bullying behaviour will not be tolerated and that there are consequences for engaging in such conduct.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established