Bianca Raine

[2016] FWC 3437

[2016] FWC 3437

FAIR WORK COMMISSION

DECISION

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

Bianca Raine
(AB2016/335)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 27 MAY 2016

Application for an FWC order to stop bullying.

Introduction

[1] On 15 March 2016 Bianca Raine (the Applicant) lodged an application for an order to stop bullying pursuant to s.789 FC of the Fair Work Act 2009 (the Act).

[2] The employer is Ansell Limited (the Employer), the manufacturer of rubber and related products. The Applicant was a senior manager in northern New South Wales and was based in Sydney.

[3] The persons against whom bullying was alleged were Beverley Peiker and Angus Galati.

[4] The Applicant complained of bullying which commenced in January 2016. She further alleged that this conduct had a significant effect on her health and safety.

[5] The conduct complained of included:

● Harassing phone calls and emails;

● Unreasonable instructions and monitoring;

● Unreasonable work expectations and criticism;

● Discriminatory behaviour.

The employer conducted an official investigation after the Applicant lodged a complaint with the Human Resources Department.

[6] The Employer responded that it had engaged in reasonable management action in a reasonable manner including by:

● Fully investigating the alleged incidents following the Applicant’s first reporting the allegation to the Employee Relations Manager Mr Popsecu;

● The Applicant was given a verbal and written warning by her Manager, Ms Peiker on 29 January 2016 because of a number of performance issues.

● Email and telephone contact with the Applicant was reasonable supervision.

[7] No separate responses were provided by Ms Peiker and Mr Galati.

Commission Proceedings

[8] The matter was listed for a conference on 18 April 2016 but was cancelled.

[9] On 8 April 2016, Lauren Drummond of Holding Redlich, solicitors advised the Commission that the Applicant had been terminated on 24 March 2016 for reason of unsatisfactory performance. The termination letter was attached to an amended F73 form. The termination was effective 24 March 2016.

[10] In the meantime, the matter was re-listed for conference on 2 May which was cancelled and then again listed for a telephone conference on 10 May 2016.

[11] The relevant aspects of the anti-bullying legislation are:

Relevant Legislation

[12] The relevant aspects of the anti-bullying legislation are:

“789FD When is a worker bullied at work?

(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally-covered business:

(i) an individual; or
(ii) a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.

(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:

(a) the person is:

(i) a constitutional corporation; or
(ii) the Commonwealth; or
(iii) a Commonwealth authority; or
(iv) a body corporate incorporated in a Territory; or

(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;

then the business or undertaking is a constitutionally-covered business.”

and:

“789FF 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.

(2) In considering the terms of an order, the FWC must take into account:

(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body—those outcomes; and
(b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes—that procedure; and
(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes—those outcomes; and
(d) any matters that the FWC considers relevant.”

[13] Section 587 is also relevant:

“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.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or
(b) on application.”

Consideration

[14] The Employer submits that the Commission does not have jurisdiction to make orders pursuant to s.789FF because the Applicant has been dismissed. The Commission cannot therefore be satisfied that there is a risk that the Applicant “will continue to be bullied at work” pursuant to s.789FF(1)(b)(ii). The application should therefore be dismissed pursuant to s.587(1) of the Act.

[15] I was able to confirm at the telephone conference on 10 May that the Applicant had been dismissed effective 24 May 2016 and that no Commission proceedings appeared to be pending.

[16] The Commission has decided on many occasions that where an applicant is dismissed there would not usually be a risk that the employee will continue to be bullied at work. If there is no such risk, the matter be dismissed for want of jurisdiction (see: Shaw v Australia and New Zealand Banking Group Limited; Bianca Haines[2014] FWC 3408); (Mr M T [2014] FWC 3852); (Ms Brenton [2014] FWC 4166).

[17] In James Willisv Capital Radiology Pty Ltd T/A Capital Radiology; Ms Peita Carroll; Ms Marie Gibson; Mr Dominik Kucera[2016] FWC 716 Deputy President Gostencnik stated:

“[15] However, as s.789FF(1)(b) makes clear, I must also be satisfied that there is a risk that the Applicant will continue to be bullied at work by that individual or group of individuals. Without satisfaction of the existence of a risk of continued bullying at work of the applicant by the individual or group there is an absence of power to make an order.

[16] As the Applicant has been dismissed and is no longer employed by Capital Radiology it cannot now be concluded that there is a risk that the Applicant will continue to be bullied at work by the individual or group. There is no real risk of that eventuality. That has been the case since 14 July 2015 and continues to be the case as at the date of this decision.

[17] The Applicant is taking steps to seek a remedy in relation to his dismissal by Capital Radiology and that may, if he succeeds, result in reinstatement at some point in the future. However, that case will not be heard by the Federal Circuit Court until September 2016 with a decision still later in time. As things presently stand (and would stand if I were to hear and determine this matter over the next few months) the prospect of the Applicant being ‘at work’ with Capital Radiology is speculative or hypothetical, as is the risk of continued bullying at work of the Applicant by the individual or group. As a matter of fact, the Applicant is not and will not be at work with Capital Radiology. There cannot therefore be a risk that the Applicant will continue to be bullied at work by an individual or group of individuals as identified in his application, because he is no longer employed by Capital Radiology and is no longer at work. That position will pertain for the foreseeable future.

[18] It necessarily follows that I do not have power to make an order to stop bullying and, as a consequence, I am satisfied that the Applicant’s application for an order under s.789FF has no reasonable prospect of success.

[19] Each case of this kind will turn on its own peculiar facts. It should not be assumed that it will always be appropriate to dismiss an application for an order under s.789FF because the worker has been dismissed. In some circumstances it may be appropriate to adjourn a proceeding instead of dismissing it or to proceed with determining the other preconditions in s.789FF before considering the question of risk of continued bullying at work.

[20] I have given consideration to both these possible courses of action but I have
concluded that neither course is appropriate in the present circumstances. If I were to proceed to determine the matter, I would likely face the same question concerning risk in a few months. At that point the conclusion would be the same. The efficient administration of justice is not served by this course and resources of the parties would be unnecessarily expended.”

[18] In this case, there is no evidence of any further proceedings.

[19] Accordingly, I find that there is no risk that the Applicant will continue to be bullied at work. The matter has no reasonable prospects of success and must be dismissed for want of jurisdiction to make an order under s.789FF.

[20] Pursuant to s.587(b) of the Act the application is dismissed and I so order.

DEPUTY PRESIDENT

Appearances:

B. Raine, Applicant;

L. Drummond, solicitor for the Employer.

Hearing details:

2016

May 10 (Telephone conference).

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