Gavin Botha

[2019] FWC 5324

[2019] FWC 5324

FAIR WORK COMMISSION

DECISION

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

Gavin Botha
(AB2019/191)

COMMISSIONER WILLIAMS PERTH, 1 AUGUST 2019

Application for an FWC order to stop bullying.

[1] This decision concerns an application made by Mr Gavin Botha (Mr Botha or the Applicant) under section 789FC of the Fair Work Act 2009 (the Act).

[2] On 4 July 2019, Mr Botha informed the Fair Work Commission (Commission) that his employment had been terminated that day.

[3] Consequently, the Commission wrote to Mr Botha explaining that as a consequence of his employment ending it appeared there was no risk of him being bullied at work in the future, and as such the Commission’s preliminary view was that in the circumstances there is therefore no power for the Commission to make an order to stop bullying and so his application has no reasonable prospect of success and must be dismissed.

[4] The Commission directed Mr Botha if he still wished to proceed with his application, to provide submissions addressing the Commission’s preliminary view. Subsequently, Mr Botha filed detailed submissions with extensive attachments. These submissions however do not directly address the preliminary view formed by the Commission, that because his employment has been terminated his application has no reasonable prospect of success.

[5] Mr Botha has subsequently advised that he has made an application for an unfair dismissal remedy.

The legislation

[6] 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

[7] With respect to the matters considered below it should be remembered that the Commission has held no hearing and so made no findings concerning whether or not Mr Botha has been bullied at work in the past.

[8] In the case of Yu Duo (Lynda) Lin v Woolworths Limited Pty Ltd T/A Woolworths Limited, [2017] FWCFB 3879, a Full Bench of the Commission considered whether an application for an order to stop bullying has a reasonable prospect of success after an applicant’s employment has ended, as follows:

“[20] We note that an order to stop bullying may only be issued if there is a future risk that an employee will continue to be bullied at the workplace pursuant to section 789FF(b)(ii) of the Act. In Atkinson v Killarney Properties 7 (hereafter “Atkinson”), the Full Bench held at [32]-[33] that:

We are not persuaded the decisions in Shaw and Obatoki are plainly wrong.

Both Shaw and Obatoki concerned the FWC dismissing a s.789FC application under s.587(1)(c) of the FW Act. In each case, the FWC formed the view that the s.789FC application had no reasonable prospects of success as the applicant was no longer ‘at work’ and, therefore, a pre-requisite for the making of a s.789FF order did not exist.

[21] Nevertheless, it was also noted in Atkinson that it will not always be appropriate to exercise the discretion afforded by section 587(1)(c) to dismiss an application in these circumstances.

[22] In the matter before us, it is clear that the Appellant’s employment ceased on 13 December 2016 (as evidenced by the Release Agreement) and, thus, there can be no ongoing risk of bullying to the Appellant from the Respondent or its employees as outlined in Atkinson. The Commissioner had regard to the evidence before him and applied the relevant principles. Moreover, in exercising his discretion pursuant to section 587(1)(c) of the Act, the Commissioner adopted an orthodox approach and we are not satisfied that he erred in this regard. Therefore, we are not satisfied that the Commissioner erred in dismissing the application for an order to stop bullying.”

[9] Plainly, the Commission only has jurisdiction to make an order under section 789FF 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.

[10] Mr Botha is no longer at work and there is therefore no future risk of bullying at work. Mr Botha has made an unfair dismissal remedy application which is arguably a relevant consideration however, this fact alone does not support a finding that there is a risk of future bullying at work.

[11] 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.

[12] In the circumstances of this case I am satisfied that there is no reasonable prospect of an order being made by the Commission under section789FF. Consequently, I will exercise my discretion and dismiss this application that was made under section 789FC of the Act. An order will now issue to that effect.

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