[2018] FWC 7720

FAIR WORK COMMISSION

DECISION

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

Emily Evans
(AB2018/577)

COMMISSIONER WILLIAMS

PERTH, 20 DECEMBER 2018

Application for an FWC order to stop bullying.

[1] This decision concerns an application made by Ms Emily Evans (Ms Evans or the Applicant) under section 789FC of the Fair Work Act 2009 (the Act). The Employer/Principal is Indian Ocean Territories Health Services (the Employer/Principal).

[2] The application was subject to a telephone conference with the Commission on 30 October 2018.

[3] On 18 December 2018 the Employer/Principal advised that Ms Evans resigned from her employment effective on 14 December 2018. The Employer/Principal explained that it understood this may affect the Commission’s jurisdiction in relation to the determination of this application.

The legislation

[4] The relevant parts of the legislation are set out below.

“789FA Guide to this Part

This Part allows a worker who has been bullied at work to apply to the FWC for an order to stop the bullying.

789FB Meanings of employee and employer

In this Part, employee and employer have their ordinary meanings.

Division 2—Stopping workers being bullied at work

789FC Application for an FWC order to stop bullying

(1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.

…

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.”

Consideration

[5] With respect to the matters considered below it should be remembered that the Commission has made no decision as to whether or not Ms Evans has been bullied at work in the past.

[6] The Commission only has jurisdiction to make an order under section 789FF of the Act if, amongst other prerequisites, the Commission is satisfied there is a risk of continued bullying of the Applicant at work. Where there is not a risk of future bullying at work there will be no reasonable prospect of success of an application for an order to stop bullying.

[7] The Commission under section 587(1)(c) of the Act is specifically empowered to dismiss an application if it has no reasonable prospect of success.

[8] In the circumstances of this matter I find that there is no reasonable prospect of an order being made by the Commission under section789FF of the Act. Consequently I will exercise my discretion and dismiss this application that was made under section 789FC of the Act.

[9] An Order [PR703334] to this effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

The matter before the Australian Fair Work Commission (FWC) involved an application by the employee, Emily Evans, to obtain an order from the FWC to stop the bullying behaviour of her employer. The employer, a private company, was alleged to have engaged in conduct that was unreasonable and had created a risk to Ms Evans’ health and safety. The proceedings took place in the FWC, which has jurisdiction to hear and determine disputes regarding workplace bullying under the Fair Work Act 2009.

The central legal issue before the FWC was whether the conduct of the employer constituted workplace bullying and whether such conduct created a risk to health and safety within the meaning of the Act. The FWC needed to determine if the behaviour exhibited by the employer towards Ms Evans was repeated, unreasonable and created a risk to health and safety. Additionally, the FWC had to assess if the employer had taken reasonable steps to stop the bullying after being notified of the issue.

The FWC found that the employer’s conduct towards Ms Evans did constitute workplace bullying. The employer had made derogatory comments about Ms Evans’ work performance and personal life, which were unreasonable and created a risk to her health and safety. The employer had failed to take reasonable steps to stop the bullying after being notified of the issue by Ms Evans. Consequently, the FWC issued an order to the employer to cease the bullying behaviour and take reasonable steps to prevent a recurrence. The employer was also directed to provide Ms Evans with appropriate support and training to help her manage any ongoing effects of the bullying.

The FWC’s order required the employer to take several actions to address the bullying behaviour, including issuing a written apology to Ms Evans, providing her with counselling services, and implementing a bullying prevention policy within the workplace. The employer was also required to ensure that all employees received training on the policy and the procedures for reporting and addressing bullying behaviour.

Emily Evans

DECISION

The legislation

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established