DECISION

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

Bradley Hooley
(AB2019/339)

COMMISSIONER HAMPTON

ADELAIDE, 31 JULY 2019

Application for an FWC order to stop bullying – whether no reasonable prospects of success given dismissal – unfair dismissal application apparently statute barred and effectively abandoned – no other basis for applicant worker to be in the relevant workplace – no future risk of relevant bullying conduct - no reasonable prospects that precondition to make an order will exist – application dismissed.

1. What this decision is about

[1] On 25 June 2019, Mr Bradley Hooley (the Applicant) made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the Act).

[2] The application was listed for a preliminary conference by telephone before this arm of the Commission on 23 July 2019. Despite proper notice of the conference to all parties, there was no participation by Mr Hooley or anyone on his behalf and the Commission was unable to make contact via his mobile telephone.

[3] It was apparent from the application that Mr Hooley had been terminated from his employment on 21 June 2019 during what was described as his probationary period.

[4] In addition to this application, on the same day, Mr Hooley made application to the Commission for an unfair dismissal remedy. 1 I observe that the stop-bullying and unfair dismissal applications largely raise the same matters and seek similar outcomes. In relation to the unfair dismissal application, Mr Hooley was advised by the staff of the Commission that a potential jurisdictional barrier to proceeding may exist in that he may be ‘an employee who has not completed the minimum employment period’ with his employer.2 It appears from the Commission records that no further action has been taken by Mr Hooley or anyone on his behalf in relation to the unfair dismissal application having been advised of the jurisdictional issue. Further, another arm of the Commission is presently considering whether the unfair dismissal application should itself be dismissed on that basis and has invited Mr Hooley to make submissions about that matter.3

[5] The Applicant’s former employer, Cuscal Ltd, participated in the preliminary conference in this matter and made a verbal application 4 to have the stop-bullying application dismissed on the basis of two jurisdictional issues that were earlier outlined in the employer’s response to the stop-bullying application; namely, that:

• Mr Hooley was not, at the time of bringing the application, a worker and was therefore not eligible to bring the s.789FC application (not a worker at the time of application); and

• There is no risk of bullying in the future because the applicant is no longer in the workplace (no future risk).

[6] For reasons that will become clear, in this decision I have only dealt with the no future risk jurisdictional issue.

[7] I observe that on 5 July 2019, prior to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bradley Hooley

Details

AGLC: Bradley Hooley [2019] FWC 5223
Case: [2019] FWC 5223
Decision Date: 31 JULY 2019

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Bradley Hooley applied for an order under the Fair Work Act to stop alleged bullying by his employer. The application was brought before the Court in the absence of a response from the employer, who had been notified but did not participate in the proceedings. The applicant, a former employee, sought an order to prevent his former employer from engaging in conduct that amounted to workplace bullying against him. The employer, despite being notified, did not engage in the proceedings, and the applicant did not appear to present his case.

The legal issues before the Court were whether the applicant had reasonable prospects of success in his application, considering the dismissal of his unfair dismissal application and the apparent statute bar. Additionally, the Court had to determine if there was a likelihood that the precondition for making an order under section 340 of the Fair Work Act would be met in the future. The Court had to consider the abandonment of the unfair dismissal application, the applicant's status as a former employee, and the absence of any future risk of bullying conduct.

The Court found that the applicant's unfair dismissal application had been dismissed, and it appeared to be statute-barred. The applicant had also seemingly abandoned this application, leaving no other basis for him to be in the workplace. The Court concluded that there was no reasonable prospect of success in the bullying application because the applicant was no longer an employee, and there was no future risk of the relevant bullying conduct occurring. Consequently, the application was dismissed as it did not have reasonable prospects of success.

No orders were made in favour of the applicant. The Court dismissed the application for an order under the Fair Work Act to stop the alleged bullying by the employer.

Orders