(Kenneth) Craig Hill

[2018] FWC 7493

[2018] FWC 7493

FAIR WORK COMMISSION

DECISION

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

(Kenneth) Craig Hill
(AB2018/265)

COMMISSIONER SIMPSON BRISBANE, 11 DECEMBER 2018

Application for an FWC order to stop bullying – where applicant no longer employed by the employer – whether the Commission has jurisdiction to hear the application – no reasonable prospects of success – application dismissed

[1] On 5 May 2018, the Applicant made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the Act). The Form F72 application did not make clear whether the Applicant was still employed by the Employer at the time.

[2] On 8 May 2018, a staff member from the Fair Work Commission anti-bullying team contacted the Applicant and held a preliminary discussion where the Applicant confirmed he no longer worked for the Employer, however wished to proceed with the application.

[3] On 10 May 2018 the Employer filed a Form F73 Response also advising that the Applicant was no longer employed by the Employer.

[4] On 31 May 2018 a Notice of Listing was sent to the parties advising that the matter had been set down for a Conference on 7 June 2018.

[5] On 6 June 2018 my chambers received an email from the Applicant requesting the Conference listed for 7 June be adjourned on the basis the Applicant had a concurrent General Protections application before the Commission that was listed for a Conference on 8 June 2018. The Employer objected to this request. The Applicant subsequently filed a medical certificate and stated he was unfit to attend the Conference listed on 7 June 2018. I granted the adjournment request.

[6] On 7 July 2018 the Applicant contacted my chambers advising my Associate that he wished to press the application. My Associate explained the potential jurisdictional issues arising with the Applicant’s application given he no longer worked for the Employer. The Applicant confirmed he wanted to press the application but did not request that the matter be brought on for a listing.

[7] As at November 2018, no further communication had been received by my chambers from the Applicant. On 11 November 2018, my chambers wrote to both parties advising them of my preliminary view that in the circumstances where an applicant’s employment has been terminated, there is no power for the Commission to make an order to stop bulling and so the application has no reasonable prospect of success and must therefore be dismissed. Parties were invited to make submissions on these views by 24 November 2018.

[8] As at 11 December 2018, no submissions have been received from either party in relation to this matter.

Consideration

[9] Section 789FF(1)(b) provides that to make an order in this jurisdiction, the Commission must be satisfied that there has been relevant bullying conduct, and further, that there is a risk of further bullying of the applicant at work:

“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.”

[10] It is clear from the circumstances of the matter that there is presently no risk the Applicant will be bullied at work by the group of individuals against whom he made his application, given he is no longer employed by the Employer and no longer attends the workplace. Further there is no evidence to suggest there is a risk that the Applicant will continue to be bullied at work.

[11] For these reasons I find that the application has no reasonable prospects of success.

[12] Section 587 gives the Commission the power to dismiss an application on a number of grounds, including where the application has no reasonable prospect of success:

“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.

[13] I see no reason in the circumstances why I should not exercise my discretion to dismiss the Applicant’s application given my findings and I do so.

COMMISSIONER

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