Jasmine Judah

[2015] FWC 8529

[2015] FWC 8529

FAIR WORK COMMISSION

DECISION

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

Jasmine Judah
(AB2015/415)

DEPUTY PRESIDENT BARTEL ADELAIDE, 9 DECEMBER 2015

Application for an order to stop bullying – Application by employer to dismiss.

[1] On 30 June 2015, Ms Jasmine Judah (the applicant) filed an application for an order to stop bullying against Helping Hand Aged Care Inc. (the employer) and a number of named employees and officers of the employer.

[2] Thereafter a number of conciliation conferences were held to explore arrangements and policy options that would enable the parties to move beyond the various complaints made in the application. During the course of the conferences before the Fair Work Commission (the Commission) the applicant amended her application to remove named individuals as respondents.

[3] On 17 September 2015 the applicant was dismissed from employment after an investigation into certain allegations. It is unnecessary to detail the allegations for the purposes of this decision.

[4] On 15 October 2015 the employer made an application under s.587(3) of the Fair Work Act 2009 (the Act) to dismiss the anti-bullying application on the basis that it had no reasonable prospect of success. The application was dealt with on the basis of the written submissions of the parties.

[5] Section 587 of the Act is in the following terms:

“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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[6] The basis of the employer’s application is that the applicant is unable to satisfy the jurisdictional requirement for the Commission to make an order to stop bullying. Section 789FF(1) of the Act establishes the requirements that must be met in order for the Commission to exercise its discretion to make an order to stop bullying, as follows:

“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) …”

[7] The employer contended that, as the applicant is no longer “at work”, there is no risk that she will continue to be bullied. Accordingly, the applicant is unable to satisfy the Commission of the requirement in s.789FF(1)(b)(ii) of the Act. In this circumstance, the Commission is precluded from exercising its discretion to make an order to stop bullying. The Full Bench decision on appeal in the matter of Atkinson v Killarney Properties Pty Ltd (Atkinson) 1 and the decision in Shaw v Australia and New Zealand Banking Group Limited2 (Shaw) were relied upon in support of this submission.

[8] At the time of the employer’s initial written submissions 3, the applicant had filed an unfair dismissal application seeking reinstatement in employment. The employer submitted that the institution of such proceedings may provide a reason to adjourn, rather than dismiss an application for an order to stop bullying. However it was contended that in the present case the likelihood of reinstatement was “remote and speculative” and the application should be dismissed. The unfair dismissal application has since been discontinued.

[9] The applicant contended that she has a workers compensation claim and a general protections claim, each of which could result in her reinstatement in the workplace. If she were successful in returning to employment she was at risk of being subjected to the same bullying behaviour of which she has complained in her current application. It was submitted that the Commission had discretion to adjourn the anti-bullying application pending the outcome of the other claims, and should do so in the present matter.

[10] There appears to be a dispute between the parties as to whether a settlement has been reached in respect to the applicant’s workers compensation and general protections applications. I have proceeded on the basis that these applications currently remain on foot.

Consideration

[11] At the outset, I note that the applicant made a number of submissions and provided documentation that is directed to the issue of whether she was bullied at work and the impact upon her of the bullying conduct. I have not taken this material into account as it is not relevant to the issue which falls to be determined.

[12] The power to dismiss an application under s.587 of the Act is a discretionary one. The circumstances in which the Commission can exercise it discretion to dismiss an application include those set out in s.587(1)(a), (b) and (c), but as the introductory sentence to this subsection makes clear, the power to dismiss an application is not limited to these three grounds.

[13] The meaning of “no reasonable prospect of success” has been considered in the context of circumstances similar to those in the present case, on several occasions. That is, the consideration concerned an application for an order to stop bullying where at some time prior to the claim being determined, the worker is dismissed from employment. In these cases it was held that the application had no reasonable prospect of success because the pre-requisite for the making of an order to stop bullying under s.789FF(1)(b) of the Act could not be met, and the respective applications were dismissed. 4

[14] These decisions also acknowledge that there are circumstances where the Commission may decline to exercise its discretion to dismiss an application on the basis of no reasonable prospect of success, notwithstanding the dismissal of the worker. Such circumstances may include where, despite the dismissal, the applicant may continue to be exposed to the workplace in some capacity and therefore may be at risk of further bullying. 5

[15] In PK, 6 Commissioner Hampton noted that the Commission may decline to exercise its discretion to dismiss a matter on the grounds of no reasonable prospect of success where there is an apparently related dismissal that is being actively contested. However, the Commissioner also observed that the requirement to deal with the matter promptly; the nature and circumstances of the parties; and the capacity of the applicant to make a further application in the event of reinstatement and further bullying taking place, were also relevant considerations.7

[16] In Shaw, Deputy President Gostencnik similarly observed that, in the event of reinstatement, the worker was at liberty to make a fresh application for an order to stop bullying if at that point there were concerns about a risk of continued bullying at work. However, Deputy President Gostencnik was of the view that the fact that the worker was seeking a remedy in relation to his dismissal that may result in reinstatement was both “speculative and uncertain” and had no bearing on whether there is a risk that the worker will continue to be bullied at work. 8

[17] In the present case the applicant is at not at risk of being bullied at work because of the dismissal. That is, there is no requirement that she return to the workplace in some other capacity and which may potentially expose her to bullying conduct. There are no aspects of this case that persuade me that the matter should be adjourned, including on the basis of any other applications that the applicant has made that may relate to her dismissal. The general protections application was filed in advance of her dismissal 9 and it is apparent that, at the least, a financial settlement is being negotiated in respect to this claim and the workers compensation claim.10

[18] Accordingly, I exercise my discretion under s.587(1)(c) of the Act to dismiss the application on the basis that there is no reasonable prospect of success. An order to this effect is issued with this decision. The jurisdictional prerequisite for the Commission to make an order to stop bullying have not and cannot be met at present and the prospect of the applicant’s reinstatement is speculative and remote.

DEPUTY PRESIDENT

 1   [2015] FWCFB 6503.

 2   [2014] FWC 3408.

 3   Respondent’s Outline of Submissions, 22 October 2015.

 4   These decisions include Atkinson, Shaw, supra; Obatoki v Mallee Track Health and Community Services and Others, [2015] FWCFB 1661.

 5   Obataki, supra.

 6   [2015] FWC 562.

 7   Ibid, at [33] and [34].

 8   At [17], [16].

 9   The application was filed on 1 July 2015.

 10   Further submissions of the applicant by email dated 7 December 2015.

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