Craig Hutchinson v Ord Minnett Limited

[2023] FWC 2907

[2023] FWC 2907

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Craig Hutchinson
v

Ord Minnett Limited and others

(AB2023/284)

DEPUTY PRESIDENT COLMAN MELBOURNE, 3 NOVEMBER 2023

Anti-bullying application – application dismissed under s 587(1)(c)

1. Mr Craig Hutchinson made an application under s 789FC of the Fair Work Act 2009 (Act), in which he contended that he had been subjected to bullying by his employer, Ord Minnett Limited, and certain individuals (respondents).

1. On 5 September 2023, I conducted a conciliation conference in relation to the application, at the conclusion of which it was agreed that Mr Hutchinson would return to work at the office three days a week, the company would put to Mr Hutchinson any concerns it had about his conduct, and Mr Hutchinson would take care to avoid touching colleagues or using language that might cause offence. It appeared to me that the matter had resolved, however I agreed to leave the file open for a number of weeks in case the parties required further assistance. The parties subsequently copied chambers on correspondence which revealed that there was a difference of opinion between them as to how long Mr Hutchinson would attend work each day, however in none of the correspondence did Mr Hutchinson state that he was being subjected to bullying, nor did it appear to me that this was the case. At no time following the conference on 5 September 2023 was there a request for the application to be relisted.

1. On 26 October 2023, I wrote to the parties, noting that since the conciliation conference on 5 September 2023, there had been no requests for further proceedings in the Commission, and that my understanding was that the matter had now been resolved. I advised the parties that I proposed to dismiss the application under s 587(1)(c) of the Act after 4.00pm on 3 November 2023, but that if Mr Hutchinson wished to be heard further in relation to his application, he should advise the Commission before that time. Mr Hutchinson did not seek to be heard.

1. Section 587(1)(c) provides that the Commission may dismiss an application that has no reasonable prospects of success. It may do so on its own initiative (s 587(3)). I am satisfied that Mr Hutchinson’s application has been resolved and that for this reason it has no reasonable prospect of success. Provided the relevant jurisdictional requirements have been made out, the Commission has a discretion as to whether to issue an anti-bullying order, and there is no reasonable prospect of it doing so in circumstances where the matter has been resolved. Further, s 789FF(1)(b) states that the Commission may make an order to prevent a worker being bullied at work if it is satisfied of two matters: first, that the worker has been bullied at work, and secondly that there is a risk that the worker will continue to be bullied at work. Even if I were to be satisfied that the first requirement was satisfied, I consider that there is no reasonable prospect that I could be satisfied of the second because Mr Hutchinson does not seek to be heard further in relation to his application, and therefore I consider there is no reasonable basis on which I could conclude that there is a risk that Mr Hutchinson will continue to be bullied at work. In my view no order under s 789FF could properly be made.

1. The Commission’s discretion to dismiss the application under s 587(1)(c) is enlivened and in my view it is appropriate to exercise it. The application is therefore dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR767991>