Brett Johnson

[2020] FWC 2381

[2020] FWC 2381

FAIR WORK COMMISSION

DECISION

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

Brett Johnson
(AB2019/454)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 6 MAY 2020

Application for an FWC order to stop bullying.

[1] An application was made by Mr Brett Johnson for an order to stop bullying under s.789FC of the Fair Work Act 2009 (Cth) (Act). The application alleged bullying by employees of Spot on Pots & Nursery and G Gay & Co Mitre 10.

[2] A conference was convened by the Commission on 24 September 2019. At the conference, Mr Johnson advised that he had an appointment with his treating practitioner on 10 October 2019, following which he would advise the Commission how he wished to manage his application.

[3] In the absence of any report back from Mr Johnson, the Commission telephoned him on three occasions in the period between 15 and 17 October 2019. On each occasion a voicemail message was left requesting a return call to discuss the application. No response was received from Mr Johnson.

[4] On 18 October 2019, an email was sent to Mr Johnson requesting a report back by 23 October 2019. In the absence of a response, the Commission telephoned him on 24 October 2019 and left a voicemail message requesting a return call.

[5] On 7 and 8 November 2019 further telephone calls were made to Mr Johnson. None of these calls were answered. An email was sent on 8 November 2019 requesting that Mr Johnson urgently advise the Commission how he wished to proceed with his application. A response was requested by 15 November 2019. In the absence of a response, further telephone calls were made to Mr Johnson on 22 and 27 November 2019. On each occasion, a voicemail message was left requesting a return call.

[6] On 27 November 2019, an email was sent to Mr Johnson requesting written advice from him as to how he wished to proceed with his application. The email indicated that in the absence of any advice by 17 December 2019, the application may be dismissed.

[7] On 13 January 2020, a further telephone call was made to Mr Johnson. The call was not answered, and a voicemail message was left.

[8] On 22 January 2020, Spot on Pots & Nursery advised the Commission that Mr Johnson had not presented to work or made contact since the conference on 24 September 2019 and did not attend his last rostered shift in August 2019. This was confirmed by G Gay & Co Mitre 10 who advised that Mr Johnson has not worked in its nursery since August 2019.

[9] On 28 January 2020, the following email was sent by the Commission to Mr Johnson:

“As per the attached email, Chambers has been advised that you:

(a) failed to attend your last rostered shift with Spot on Pots in August 2019; and

(b) have not requested to be rostered on any shifts since that time.

As such, the Deputy President understands that you would not have worked at Spot on Pots nursery situated at the G Gay & Co Mitre 10 site.”

[10] Mr Johnson was directed to advise the Commission by 19 February 2020 how he wished to proceed with the application and failing this the application would be dismissed.

[11] Since the 24 September 2019 conference Mr Johnson has not communicated with the Commission in respect of his application.

Consideration

[12] For any order to stop bullying to be made under s.789FF(1) of the Act, the Commission must be satisfied that (1) Mr Johnson has been bullied at work by an individual or a group of individuals and (2) there is a risk that Mr Johnson will continue to be bullied at work by the individual or group.

[13] In the circumstances of this matter, there is no capacity for the Commission to determine the question of whether Mr Johnson has been bullied at work by an individual or a group of individuals (s.789FF(1)(b)(i) of the Act). Despite repeated invitations, Mr Johnson has not sought to progress his application in the Commission.

[14] Spot on Pots & Nursery and G Gay & Co Mitre 10 each advised that Mr Johnson has not attended work since August 2019. This is not in dispute. There is no material before the Commission which indicates that Mr Johnson intends to return to his casual employment. In these circumstances, I do not consider that there is a risk of bullying at work by any individual or group named in his application (s.789FF(1)(b)(ii) of the Act).

[15] Given my findings in respect of s.789FF(1), there is no basis for the Commission to issue any order to stop bullying.

Conclusion

[16] Sections 587(1)(c) and (3) of the Act provide the Commission with discretion to dismiss an application on its own initiative if the application has no reasonable prospects of success.

[17] In light of the conclusion at [15], I consider, in all of the circumstances, that the application has no reasonable prospects of success and it is appropriate that it be dismissed.

[18] The application is therefore dismissed pursuant to 587(1)(c) of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR719166>