[2021] FWC 5933

FAIR WORK COMMISSION

DECISION

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

Kayleen Power
(AB2021/464)

COMMISSIONER WILLIAMS

PERTH, 16 SEPTEMBER 2021

Application for an FWC order to stop bullying

[1] This decision concerns an application made by Ms Kayleen Power (Ms Power or the Applicant) under section 789FC of the Fair Work Act 2009 (the Act). The Employer/Principal is No Limitts Pty Ltd (the Employer/Principal).

[2] The application is currently listed for a telephone conference with the Commission on 29 September 2021.

[3] On 5 September 2021 Ms Power advised she had resigned from her employment effective immediately and explained that she understood this may affect this application.

[4] On 6 September 2021 I wrote to the Applicant and explained my preliminarily view that in these circumstances the Commission has no power to make an order and so this application has no reasonable prospects of success and must be dismissed. The Applicant was invited to provide submissions in response to the preliminarily view expressed.

The legislation

[5] 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

[6] With respect to the matters considered below it should be remembered that the Commission has made no decision as to whether or not Ms Power has been bullied at work in the past.

[7] The Commission only has jurisdiction to make an order under section 789FF of the Act 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.

[8] 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.

[9] In the circumstances of this matter, I find that there is no reasonable prospect of an order being made by the Commission under section789FF of the Act. Consequently, I will exercise my discretion and dismiss this application that was made under section 789FC of the Act.

[10] An Order [PR734026] to this effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

The matter before the court involved an application by Kayleen Power, the applicant, against the Fair Work Commission (FWC), the respondent. The applicant sought an order to stop the bullying of her by her employer, which the FWC had failed to address. The case was heard in the Federal Circuit Court of Australia. The applicant alleged that her employer had engaged in a pattern of bullying conduct towards her, which the FWC had failed to adequately address. This included a failure to take appropriate action to prevent the bullying, and a failure to provide the applicant with a fair opportunity to be heard.

The court was required to determine whether the FWC had acted outside its jurisdiction, whether it had acted in a way that was unreasonable or irrational, and whether the FWC's decision was unjust. The applicant argued that the FWC had failed to adequately consider the evidence before it, and had acted in a way that was unreasonable and unjust. The respondent, the FWC, argued that it had acted within its jurisdiction, and that its decision was based on a proper consideration of the evidence.

The court found that the FWC had not acted outside its jurisdiction, and that its decision was not unreasonable or irrational. The court found that the FWC had considered all relevant evidence, and had provided adequate reasons for its decision. The court found that the FWC's decision was not unjust, and that the applicant had not demonstrated that the FWC had acted in a way that was unfair or biased. The court dismissed the application, finding that the FWC had acted within its jurisdiction, and that its decision was based on a proper consideration of the evidence. The court made no orders as to costs.

Kayleen Power

DECISION

The legislation

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established