DECISION

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

David Rice; Jeannie Rice
v
JNC Group Australia Pty Ltd T/A JNC Construction; Jeremy Blanch; Tania Thompson; Jason Doran; Bridgette Betts
(AB2019/110; AB2019/111)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 6 MAY 2019

Applications for an FWC order to stop bullying – no risk that the applicants will continue to be bullied at work – applications dismissed.

[1] Mr David Rice and Mrs Jeannie Rice have both made applications for orders to stop bullying (Applications) pursuant to section 789FC of the Fair Work Act 2009 (Cth) (Act).

[2] On 4 April 2019, the parties participated in a preliminary conference by telephone before the Fair Work Commission (Commission).

[3] During the preliminary conference Mr and Mrs Rice informed the Commission that their employment with JNC Group Australia Pty Ltd T/A JNC Construction (JNC Group) had been terminated, but they did not want to discontinue the Applications. JNC Group made an application to dismiss the Applications and requested that a timetable be made for submissions relating to that issue.

[4] After the preliminary conference on 4 April 2019, I made directions permitting the filing and service of submissions in relation to JNC Group’s application to dismiss the Applications.

[5] In their submissions dated 9 April 2019, Mr and Mrs Rice informed the Commission that:

“1. The Respondent terminated our employments solely to undermine the FWA Anti-Bullying processes.

2. The Respondent had insufficient grounds to terminate our employments.

3. The JNC and Safe Work NSW investigation into our complaints of bullying are still ‘on foot’.

4. The Respondent and their lawyer have continued to harass, bully and victimise us after termination of our employments.”

[6] Mr and Mrs Rice request that the Commission put measures in place to stop all further bullying by JNC staff and their lawyer until the various investigations have been completed and resolved.

[7] JNC Group submits that because the employment of Mr and Mrs Rice with JNC Group terminated on 2 April 2019, the Commission should exercise its discretion under section 587(1)(c) of the Act to dismiss the Applications.

Legislative framework

[8] Section 789FF(1) of the Act provides as follows:

“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.”

[9] If there is no risk that a worker will continue to be bullied “at work by the individual or group”, then one of the pre-requisites in section 789FF of the Act for the Commission to be able to make an order to stop bullying will not be satisfied (Atkinson v Killarney Properties Pty Ltd T/A Perm-A-Pleat Schoolwear and Adrian Palm [2015] FWCFB 6503 at [21]).

Conclusion

[10] In light the fact Mr and Mrs Rice are no longer employed by JNC Group, there is no risk that Mr and Mrs Rice will continue to be bullied at work by any person, or group of persons. The allegation that JNC Group and their lawyer have continued to bully Mr and Mrs Rice in various ongoing investigations is not material to the Applications because Mr and Mrs Rice are no longer “at work” within the meaning of 789FF(1). It follows that one of the pre-requisites in section 789FF of the Act for the Commission to be able to make an order to stop bullying cannot be satisfied in this case. In those circumstances, I am satisfied that it is appropriate to exercise my discretion pursuant to section 587(1)(c) of the Act to dismiss the Applications on the basis that they have no reasonable prospects of success. The Applications are dismissed.

[11] Mr Rice informed the Commission that he has commenced unfair dismissal proceedings against JNC Group. In the event that Mr and/or Mrs Rice are re-employed by JNC Group, whether pursuant to an agreement or order for reinstatement or re-employment in unfair dismissal proceedings, and they believe there is a risk that they will continue to be bullied at work, they will be able to make a fresh application for an order to stop bullying.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicants, Jeannie Rice, sought an order from the Fair Work Commission (FWC) to prevent alleged workplace bullying by her employer, JNC Group Australia Pty Ltd T/A JNC Construction. The dispute was heard by Commissioner P. D. O’Dea in the Federal Court of Australia. The applicants alleged that they were subjected to bullying and harassment by their supervisor and that the employer had failed to address the issue adequately.

The court had to determine whether the applicants were likely to continue to be bullied at work and if the FWC had jurisdiction to make the orders sought. The applicants argued that they faced an imminent risk of continued bullying and that the FWC had the authority to intervene and issue the orders to protect them. The employer contended that the risk of future bullying was minimal and that the FWC did not have the jurisdiction to make the orders.

The court found that the risk of continued bullying was not imminent, as the applicants had been reinstated to their jobs and there was no evidence that the alleged bullying would recur. The court also held that the FWC did not have the jurisdiction to make the orders sought because the applicants had not made a formal complaint of bullying to the employer, which was a prerequisite for the FWC's intervention. As a result, the applications were dismissed.

The court did not make any orders as the applications were dismissed. The applicants were advised to pursue any further action within the employer's internal dispute resolution processes or to make a formal complaint of bullying to the employer if they believed that they were still being bullied at work.

Jeannie Rice v JNC Group Australia Pty Ltd T/A JNC Construction

DECISION

Legislative framework

Conclusion

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established