Irina Mitiaguina

[2021] FWC 2847

[2021] FWC 2847

FAIR WORK COMMISSION

DECISION

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

Irina Mitiaguina
(AB2021/65)

COMMISSIONER WILSON MELBOURNE, 27 MAY 2021

Application for an FWC order to stop bullying - whether application for order has no reasonable prospect of success - application to dismiss granted.

[1] In making application to the Fair Work Commission on 9 February 2021, Ms Irina Mitiaguina (the Applicant) sought an order to stop bullying pursuant to s.789FC of the Fair Work Act 2009 (the Act). The Applicant alleges that she was bullied at work by her Managing Director during her employment with Results Direct Pty Ltd (the Respondent).

Procedural Background

[2] A conference took place before me on 6 April 2021. The matter was not resolved between the parties. On 9 April 2021, I issued Directions to the parties and listed the matter for hearing.

[3] The Applicant emailed my chambers on 26 April 2021, which stated “Please find attached file : the letter of "Confirmation of Termination of Employment"” I received from Results Direct company…”, however there was no letter attached.

[4] On 27 April 2021, my chambers replied to the Applicant advising her there was no attachment and asked her to resend it. On the same day, the Respondent emailed my chambers confirming the Applicant’s employment was terminated on 20 April 2021 and provided the “Confirmation of Termination of Employment” referred to by the Applicant.

[5] As a result, I caused correspondence to be emailed to the parties on 27 April 2021 inviting the Applicant to discontinue the anti-bullying application on the basis that she had been dismissed, or I would initiate steps to dismiss it under s.587 of the Act. There was no response to this correspondence.

[6] On 10 May 2021, I caused further correspondence to be emailed to the parties inviting the Applicant to discontinue the anti-bullying application by 4.00PM Friday, 14 May 2021 and if this did not occur then I would initiate steps to dismiss the anti-bullying application under s.587 of the Fair Work Act 2009.

[7] The Applicant replied to this correspondence, stating:

“Are there any other options I can pursue?

I do not want to initiate the process to discontinue my application.

I believe I sustain a purposely orchestrated bullying against me.

I did nothing wrong to the company.

I was very loyal and devoted employee.

As a result of the bullying , I got sick and unfit for work.

I was terminated by the company for the reason being on sick leave for 3 months over the year.

The bullying heavily affected all aspects of my life: my health , well-being, income , family and professional live.

I cannot see the reason why I should apply to discontinue my application.

I want to investigate the other options in order to stop bullying people at work place at Result Direct company…”

[8] On 11 May 2021, my chambers reiterated to the Applicant the information previously provided to the Applicant and informed the Applicant that the Commission does not provide advice.

[9] A further and final opportunity was provided by me to the Applicant on 20 May 2021 to provide submissions as to why her anti-bullying application should not be dismissed. In her reply on 26 May 2021, Ms Mitiaguina states she is no long working for Results Direct Pty Ltd, states that even so she considers she continues to be bullied by its Managing Director and restates her bullying contentions as well as her view that she was terminated as a punishment for several things, including for having commenced this application.

[10] Solicitors for Results Direct Pty Ltd and its Managing Director strongly refuted these allegations in correspondence to the Commission dated 27 May 2021. It is not necessary to canvass in this decision the matters to which the Person Named or former employer disputes the Applicant’s contentions, however I record I have made no findings about any of the matters either party has raised.

[11] Further, it is a matter of record that the Applicant lodged an application for an unfair dismissal remedy with the Commission on 8 May 2021.

Legislative Framework

[12] Section 789FC of the Act sets out when a person can make an application to the Commission for an order to stop bullying:

“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.

(2) For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force.

Note: Broadly, for the purposes of the Work Health and Safety Act 2011, a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.

(3) The application must be accompanied by any fee prescribed by the regulations.

(4) The regulations may prescribe:

(a) a fee for making an application to the FWC under this section; and

(b) a method for indexing the fee; and

(c) the circumstances in which all or part of the fee may be waived or refunded.”

[13] Section 789FD of the Act sets out the requirements for a person to have been bullied at work and relevantly provides:

“When is a worker bullied at work?

(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally-covered business:

(i) an individual; or

(ii) a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner…”

[14] Section 789FF of the Act then sets out when the Commission may make an order to stop bullying:

“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

[15] The Applicant’s employment has been terminated. She is no longer “at work” for the Respondent. In my correspondence to the parties on 27 April 2021, I advised that the Commission’s jurisdiction on the anti-bullying matter is likely at an end because the Applicant has been dismissed and if that was the case then the Applicant was invited to discontinue the anti-bullying application or I would initiate steps to dismiss it under s.587 of the Act.

[16] The Applicant did not discontinue the application however, she did confirm that she was in fact terminated from her employment.

[17] In Bibawi v Stepping Stone Clubhouse Inc t/a Stepping Stone & Others, 1 the Full Bench, when dealing with a dispute as to whether an Applicant was a “worker” in an application made pursuant to s.789FC of the Act, stated:

“[17] Section 587(1)(a) of the FW Act empowers the Commission to dismiss an application where it has not been made in accordance with this Act, and s 587(1)(c) similarly empowers dismissal where an application has no reasonable prospects of success. This power may be exercised summarily - that is, an application may be dismissed pursuant to s 587(1) prior to a full hearing being conducted. Full Bench decisions such as Townsley v State of Victoria (Department of Education & Early Childhood Development) and Toma v Workforce Variable Pty Ltd have emphasised that the power to dismiss applications summarily should be exercised cautiously and sparingly, consistent with the principle stated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW):

“… the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion… the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action … is clearly demonstrated.” (references omitted)

[18] As outlined above, the relevant remedy in respect of applications for an order to stop bullying is an order which the Commission considers appropriate “to prevent the worker from being bullied at work by the individual or group”. 2 The discretion to make an order to stop bullying is only exercisable if the Commission is satisfied that:

•  the worker has been bullied at work by an individual or a group of individuals; and

•  there is a risk that the worker will continue to be bullied at work by the individual or group. 3

[19] Thus, before issuing an order under s.789FF, the Commission must be satisfied there is a risk that the worker will continue to be bullied at work. If the Commission is not satisfied there is a risk that the worker will continue to be bullied at work by the individual or group, the application must fail.

[20] Therefore, in this case, even if I was satisfied the Applicant has been bullied at work by an individual or group of individuals, I must also be satisfied there is a risk that he will continue to be bullied at work by the individual or group of individuals and that it is appropriate to make an order to prevent him from being bullied at work. Absent the existence of a risk of continued bullying at work by the individual or group, there is an absence of power to make an order. 4

[21] The material before me clearly establishes that the Applicant is not at work for the Respondent. There is nothing before me to suggest this situation will change. As such, I consider I am able to reach a definite and certain conclusion that the Applicant cannot currently succeed in establishing there is a risk that he will continue to be bullied at work. On the material before me therefore, I am satisfied the pre-requisites for the making of an order pursuant to s.789FF(1) of the Act cannot be met and that the Application has no reasonable prospects of success.

[22] Section 587 of the Act provides:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.”

[23] The Explanatory Memorandum to the Fair Work Bill 2008 outlined the following in relation to what would become s.587 of the Act:

“Clause 587 – Dismissing applications

2271. Subclause 587 allows FWA to dismiss, on its own initiative or on application, an application which is not made in accordance with the Bill, or that is frivolous, vexatious or has no reasonable prospects of success.

2272. However FWA may not dismiss an application to deal with a dispute involving a dismissal under clause 365 or clause 773 on the grounds that the application is frivolous, vexatious or has no reasonable prospects of success.

2273. This provision is not intended to limit FWA’s power to dismiss applications for other reasons, such as failure to meet jurisdictional requirements.”

[24] It is clear, therefore, that s.587 of the Act confers in the Commission a broad discretionary power to dismiss an application before it. I am satisfied that the Applicant’s application for an order under s.789FF has no reasonable prospects of success. I have decided it is appropriate that I should exercise my discretion and dismiss her application.

Conclusion

[25] On the material before me, I consider the pre-requisites for the making of any orders pursuant to s.789FF(1) of the Act cannot presently be met because there is no risk that the Applicant will continue to be bullied at work. I am persuaded that the application the Applicant has made has no reasonable prospects of success and I am satisfied it is appropriate in the circumstances of this case to exercise my discretion pursuant to s.587(1)(c) of the Act to dismiss the Applicant’s anti-bullying application.

[26] An order dismissing the anti-bullying application of the Applicant will be issued along with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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 1   [2019] FWCFB 1314.

 2   Fair Work Act 2009 (Cth) s.789FF.

 3   Fair Work Act 2009 (Cth) ss.789FF(1)(b)(i) and (ii).

 4   Willis v Capital Radiology Pty Ltd T/A Capital Radiology; Ms Peita Carroll; Ms Marie Gibson; Mr Dominik Kucera (Willis) [2016] FWC 716 at [15].