Javier Belmar

[2016] FWC 6237

[2016] FWC 6237

FAIR WORK COMMISSION

DECISION

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

Javier Belmar
(AB2016/429)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 2 SEPTEMBER 2016

Application for an FWC order to stop bullying.

[1] On 27 May 2016 Javier Belmar (the Applicant) lodged an application for an order to stop bullying pursuant to s.789FC of the Fair Work Act 2009 (the Act).

[2] The employer is TNT Australia Pty Ltd (the Employer) which is a major transport and logistics company based in Mascot in Sydney.

[3] The Applicant was employed as an un-deliverables clerk at the Employer’s depot in Botany. He complained of bullying by Trent Jones and Gabrielle Fisher, two of his supervisors.

[4] The conduct complained of consisted of alleged intimidatory language and behaviour and unwarranted criticism. The Applicant commenced employment with the Employer on 4 April 2016 and the bullying is alleged to have commenced shortly thereafter. It is alleged that this conduct has had significant effect on the Applicant’s health and safety. The Applicant has been absent from work on sick leave since 23 May 2016.

[5] The Employer responded that it had engaged in reasonable management action in a reasonable manner. It had carried out an investigation into the alleged incidents of bullying and found the allegations not substantiated. It concluded that reasonable work communications and directions took place in an appropriate manner. The Applicant resisted attempts by the Employer’s Human Resources Department to discuss the allegations. The Employer’s representatives did seek to raise performance and attendance issues with the Applicant, without much success because of the Applicant’s non-attendance at work.

[6] No separate responses were provided by Mr Jones and Ms Fisher.

Commission Proceedings

[7] The matter was listed for a conference on 23 June 2016. The Applicant did not attend and could not be contacted by telephone.

[8] On 23 June I sent a letter to the Applicant requesting an explanation for his absence. No response was received.

[9] On 24 June 2016, the Employer filed an application pursuant to s.587(1)(c) of the Act to dismiss the s.789FC application on the ground that it had no reasonable prospect of success.

[10] The matter was listed for hearing on 5 August 2016. Ms C. Tirado and Ms K. Russell appeared for the Employer. There was no appearance by the Applicant.

Relevant Legislation

[11] The relevant aspects of the anti-bullying legislation are:

“789FD 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.

(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:

(a) the person is:

(i) a constitutional corporation; or
(ii) the Commonwealth; or
(iii) a Commonwealth authority; or
(iv) a body corporate incorporated in a Territory; or

(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;

then the business or undertaking is a constitutionally-covered business.”

and:

“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.”

[12] Section 587 is also relevant:

“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.

(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.”

Consideration

[13] I was advised at the hearing that the Applicant had been dismissed on 24 June. Exhibit 2 is the dismissal letter. The Applicant was dismissed effective 27 June 2016 and received one week’s pay in lieu of notice.

[14] The Employer submits that the Commission does not have jurisdiction to make orders pursuant to s.789FF because the Applicant has been dismissed. The Commission cannot therefore be satisfied that there is a risk that the Applicant “will continue to be bullied at work” pursuant to s.789FF(1)(b)(ii). The application should therefore be dismissed pursuant to s.587(1) of the Act.

[15] In addition, the Applicant has not taken steps to prosecute his claim. On two occasions he has not appeared at Commission proceedings. He has provided no explanation or apology for his conduct.

[16] The Commission has decided on many occasions that where an applicant is dismissed there would not usually be a risk that the employee will continue to be bullied at work. If there is no such risk, the matter be dismissed for want of jurisdiction (see: Shaw v Australia and New Zealand Banking Group Limited; Bianca Haines[2014] FWC 3408); (Mr M T [2014] FWC 3852); (Ms Brenton [2014] FWC 4166).

[17] In James Willisv Capital Radiology Pty Ltd T/A Capital Radiology; Ms Peita Carroll; Ms Marie Gibson; Mr Dominik Kucera[2016] FWC 716 Deputy President Gostencnik stated:

“[15] However, as s.789FF(1)(b) makes clear, I must also be satisfied that there is a risk that the Applicant will continue to be bullied at work by that individual or group of individuals. Without satisfaction of the existence of a risk of continued bullying at work of the applicant by the individual or group there is an absence of power to make an order.

[16] As the Applicant has been dismissed and is no longer employed by Capital Radiology it cannot now be concluded that there is a risk that the Applicant will continue to be bullied at work by the individual or group. There is no real risk of that eventuality. That has been the case since 14 July 2015 and continues to be the case as at the date of this decision.

[17] The Applicant is taking steps to seek a remedy in relation to his dismissal by Capital Radiology and that may, if he succeeds, result in reinstatement at some point in the future. However, that case will not be heard by the Federal Circuit Court until September 2016 with a decision still later in time. As things presently stand (and would stand if I were to hear and determine this matter over the next few months) the prospect of the Applicant being ‘at work’ with Capital Radiology is speculative or hypothetical, as is the risk of continued bullying at work of the Applicant by the individual or group. As a matter of fact, the Applicant is not and will not be at work with Capital Radiology. There cannot therefore be a risk that the Applicant will continue to be bullied at work by an individual or group of individuals as identified in his application, because he is no longer employed by Capital Radiology and is no longer at work. That position will pertain for the foreseeable future.

[18] It necessarily follows that I do not have power to make an order to stop bullying and, as a consequence, I am satisfied that the Applicant’s application for an order under s.789FF has no reasonable prospect of success.

[19] Each case of this kind will turn on its own peculiar facts. It should not be assumed that it will always be appropriate to dismiss an application for an order under s.789FF because the worker has been dismissed. In some circumstances it may be appropriate to adjourn a proceeding instead of dismissing it or to proceed with determining the other preconditions in s.789FF before considering the question of risk of continued bullying at work.

[20] I have given consideration to both these possible courses of action but I have
concluded that neither course is appropriate in the present circumstances. If I were to proceed to determine the matter, I would likely face the same question concerning risk in a few months. At that point the conclusion would be the same. The efficient administration of justice is not served by this course and resources of the parties would be unnecessarily expended.”

[18] In this case, there is no evidence of any further proceedings.

[19] In addition, the Applicant has failed to take any steps to prosecute his claim.

[20] Accordingly, I find that there is no risk that the Applicant will continue to be bullied at work. The matter has no reasonable prospects of success and must be dismissed for want of jurisdiction to make an order under s.789FF.

[21] Pursuant to s.587(b) of the Act the application is dismissed and I so order. An Order [PR584929] to that effect accompanies this decision.

DEPUTY PRESIDENT

Appearances:

C.Tirado with K. Russell for the Employer.

Hearing details:

2016

Sydney:

August 5.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR584917>