KM

[2016] FWC 2088

[2016] FWC 2088

FAIR WORK COMMISSION

DECISION

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

KM
(AB2015/739)

COMMISSIONER HAMPTON ADELAIDE,18 APRIL 2016

Application for an order to stop bullying – preliminary jurisdictional issue – whether future risk of workplace bullying present – whether applicant remains employed – whether prospect that applicant will return to workplace as a worker – whether application should be dismissed on the basis that there are no reasonable prospects of success – applicant elected in 2012 to treat employer’s conduct as a dismissal – various applications taken on that basis but no determination made – whether election, if wrong, meant that employment contract remained – conduct of parties not consistent with on-going employment – whether workers compensation return to work arrangements could lead to return to the workplace – satisfied that applicant no longer employed by respondent employer – return to work arrangements linked to ongoing employment – no reasonable prospect that applicant returning to workplace as a worker – no reasonable prospects that orders can be made – discretion to be exercised – outstanding matters may be taken up in other forums – application dismissed.

1. What this decision is about

[1] This decision deals with a preliminary jurisdictional issue that has arisen in the context of an application that has been brought by Ms KM. I have de-identified the parties for particular reasons associated with this matter. 1 The application has been made under s.789FC of the Fair Work Act 2009 (the FW Act) and seeks orders to stop alleged bullying conduct.

[2] The application cites alleged unreasonable conduct within a workplace conducted by an employer in New South Wales and names the Managing Director of that organisation as being responsible for the bullying conduct.

[3] The employer conducts a business in the online healthcare sector. The applicant had been a consultant for some months prior to commencing employment with the business in early 2012 in the position of Director of Marketing.

[4] It is common ground that the applicant has not been present in the workplace since mid-July 2012 when, during a period of absence from the workplace, she was apparently denied access to her work emails. It is also reasonably apparent that as a result of that incident and other factors, the applicant considered, at that time, that she had been dismissed. This is apparent from the fact that since July 2012 there have been various forms of litigation between some or all of the parties including an unfair dismissal application under s.394 of the FW Act, and two complaints to the Australian Human Rights Commission (AHRC) launched by the applicant. Each matter involved allegations by the applicant that she had been dismissed from her employment. I also note that this litigation has included defamation and contempt proceedings taken by the employer before the Supreme Court of New South Wales.

[5] The applicant also made a workers compensation claim arising from the events in 2012 and I understand that this claim was ultimately accepted by the relevant insurer and remains on foot. It is also appropriate to note that in supporting her s.789FC application, the applicant also seeks, to a large degree, to rely upon the conduct of the employer and its representatives in much of the litigation outlined above, particularly given her medical condition and other personal circumstances.

[6] I also note that the proceedings in this application have been conducted in a manner, and at times, that was appropriate having regard to the applicant’s circumstances including her medical condition.

[7] The employer has sought that this application be dismissed on the grounds that there are no reasonable prospects of success. Section 587(1)(c) of the FW Act provides that an application may be dismissed in these circumstances. The fundamental premise of the employer’s proposition is that, irrespective as to what may have occurred leading to the application – which is in dispute, there is no prospect that an order can be made in the s.789FC application given the circumstances of the parties. That is, it contends that the applicant is no longer an employee and there is no reasonable basis upon which it could be anticipated that she will return to the workplace as an employee (or any other form of worker).

[8] I will return to the legal basis of the employer’s position shortly. It is presently sufficient to note that the jurisdiction of the Commission to make orders in an application of this kind requires, amongst other matters, that there be a future risk to the applicant worker of bullying occurring whilst at work, by the individuals found to have been responsible for the relevant bullying conduct.

[9] The applicant contends, amongst other matters, that she was not dismissed, remains an employee of the employer, and seeks to return to the workplace without the risk of future unreasonable conduct taking place against her.

2. The positions advanced by the parties

2.1 The employer

[10] The employer contends that the applicant is not an employee (or a worker) engaged by it because:

● In July 2012, the applicant considered that she had been dismissed and took unfair dismissal proceedings and lodged complaints with the AHRC seeking reinstatement;
● None of these matters ultimately proceeded and did not lead to the reinstatement of the applicant;
● It was evident that the applicant’s employment was terminated for abandonment by her, or in the alternative, as a result of her election to be treated as being dismissed) 2; and
● The parties have, in effect, conducted themselves since that time in a manner consistent with the absence of any employment (or contractual) relationship.

[11] The employer also contends that there is no return to work arrangements or initiatives, in which it is involved, that include the applicant potentially returning to work within its workplace and no such arrangements are reasonably foreseeable.

[12] On that basis, the employer asserts that there is no prospect of the applicant ever returning to the workplace as a worker.

2.2 The applicant

[13] The applicant contends that she is presently employed by the employer for the reasons:

● The employer asserts that she was dismissed but cannot confirm the date that this occurred with any certainty and has issued various contradictory Employment Separation Certificates;
● There is no evidence to support a finding that a termination of employment occurred;
● The website used by the employer continued to make reference to the applicant at least for some period after July 2012;
● Entitlements due on termination have not been paid by the employer;
● It would have been an offence to dismiss her within six months of claiming workers compensation;
● The Chief Executive Officer of the employer confirmed in an email on 30 July 2012 that it had not dismissed her; and
● She had not abandoned her employment as she was unfit for work between 20 July 2012 and 28 August 2012 and was, in effect, in no position to make any such decision.

[14] The applicant also contends that the relevant workers compensation insurer has been attempting to have her return to work at the employer and if that occurred, she would return to the workplace as a worker and then be subject to potential further risk of unreasonable behaviour.

[15] In final submissions, the applicant also referred to the fact that she was involved in some volunteer associations and other activities, and that this might involve some interaction with the Managing Director who is the subject of this matter.

3. The necessity for a relevant future risk to be present

[16] This arises from the prerequisites that exist for the Commission to make an order established by s.789FF of the FW Act.

[17] Section 789FF of the FW Act provides 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) 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.”

[18] Accordingly, to make an order in this jurisdiction, the Commission must be satisfied that there has been relevant bullying conduct within the meaning of the FW Act. Further, the Commission must be satisfied that there is a risk of further bullying of the applicant at work by the individual(s) whose conduct has led to a finding of bullying conduct. This arises from s.789FF(1)(b)(i) and (ii) of the FW Act.

[19] In G.C.³, I referred to the then leading case and made the following observations in relation to a risk of further bullying and the capacity of the Commission to make an order in such circumstances:

“[165] In Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank and Another (Shaw v ANZ), Gostencnik DP was dealing with an anti-bullying application where an applicant, Ms Shaw, had been dismissed by the employer. The Deputy President found as follows:

“[15] As s. 789FF(b) makes clear, I must be satisfied not only that Mr Shaw has been bullied at work by an individual or group of individuals but also that there is a risk that he will continue to be bullied at work by that individual or group of individuals. Therein lays the difficulty for Mr Shaw. It seems to me that I have no power to make an order to stop bullying unless I can be satisfied relevantly that there is a risk that at work Mr Shaw will continue to be bullied by the individual or group of individuals identified in his application.

[16] It is clear that Mr Shaw is no longer employed by ANZ. The employment relationship has ended. That Mr Shaw is taking steps to seek a remedy in relation to his dismissal and that that may result in reinstatement at some point in the future does not have a bearing on the question that I must answer and is speculative and uncertain. It seems to me clear that there cannot be a risk that Mr Shaw will continue to be bullied at work by an individual or group of individuals identified in his application because Mr Shaw is no longer employed by ANZ and therefore is no longer at work.

[17] It necessarily follows that I do not have power to make an order to stop bullying and, as a consequence, I am satisfied that Mr Shaw’s application has no reasonable prospect of success.”

[166] With respect, I agree with the Deputy President that the import of s.789FF(1)(b)(ii) is that for an order to be made, the Commission must be satisfied that there is a risk that the (applicant) worker will continue to be bullied at work by the individual or group (found to have bullied the applicant). For my part, where an applicant will no longer be at work with the relevant individual or group, and there is no reasonable prospect of that occurring in some capacity as a worker in the future, in almost all cases it will not be possible for an applicant to demonstrate the future risk requirement. This requires a consideration of the particular circumstances of the parties including the potential to return to the workplace in some capacity as a worker.”

[20] In Atkinson v Killarney Properties Pty Ltd[2015] FWCFB 6503, a Full Bench of the Commission reviewed the approach taken in Shaw v ANZ and another Full Bench decision (Obatoki v Mallee Track Health and Community Services and Others 4 (Obatoki)) and concluded as follows:

“[32] We are not persuaded the decisions in Shaw and Obatoki are plainly wrong.

[33] Both Shaw and Obatoki concerned the FWC dismissing a s.789FC application under s.587(1)(c) of the FW Act. In each case, the FWC formed the view that the s.789FC application had no reasonable prospects of success as the applicant was no longer "at work" and, therefore, a pre-requisite for the making of a s.789FF order did not exist. Having formed that view, the FWC then went on to exercise its discretion under s.587(1)(c) of the FW Act to dismiss the s.789FC application.

[34] The Explanatory Memorandum to which Mr Atkinson referred does not suggest that the FWC is required to make a recommendation or express an opinion in respect of an application for an order to stop bullying or to refer a matter to a WHS regulator or another regulatory body. Nor does the Explanatory Memorandum preclude the FWC exercising its power under s.587(1)(c) of the FW Act. Indeed, the note to s.789FE of the FW Act, with which the Revised Explanatory Memorandum is concerned, points out s.587 of the FW Act provides the FWC with power to dismiss a s.789FC application.

[35] In this decision, we are not suggesting that it will always be appropriate for the FWC to dismiss a s.789FC application where an employee is dismissed from their employment. Depending on the circumstances in each case there may be a number of relevant considerations, including the prospect of reinstatement through other proceedings, which could warrant the FWC dealing with a s.789FC application notwithstanding the dismissal of the employee.”

[21] On that basis, it is well established that where there is no foreseeable relevant risk that the applicant worker will continue to be bullied at work by the individual or group concerned - (including) because they are no longer engaged as a worker in that workplace and there is no reasonable prospect of this occurring, there is no prospect that the s.789FC application can succeed. A discretion then arises as to whether the application should be dismissed and this may well be appropriate depending upon the circumstances including whether there is a prospect that the worker may subsequently return to the workplace through some form of reinstatement order or other legal intervention.

4. Is there a relevant future risk of bullying conduct against the applicant as a worker?

[22] Given the requirements of the Act set out above, any relevant future risk must, amongst other matters, involve a reasonable prospect of the applicant being in the workplace conducted by the employer as a worker.

[23] In the circumstances evident in this matter, that prospect may arise from two different scenarios. Firstly, that the applicant remains an employee of the employer and secondly, that even if not presently employed, the return to work arrangements applying under the relevant workers compensation scheme mean that the applicant may be returning to the workplace as a worker.

[24] I note that there is no indication that there are any other proceedings on foot that may involve the potential “reinstatement” of the applicant.

4.1 Is the applicant presently an employee of the employer?

[25] As outlined earlier, it is evident that at least in the period between 2012 and 2014, the applicant launched proceedings on the basis that she had been dismissed. In relation to the unfair dismissal application before this Commission, and at least the first of the AHRC complaints, the applicant was represented by a lawyer, and the unfair dismissal application was lodged on her behalf. None of these matters were ultimately determined.

[26] Without making any presumptions, it is convenient to examine the various grounds that the applicant relies upon to demonstrate that she was not dismissed.

Confusion in the employer’s position as to how and when it “dismissed” the applicant

[27] There is some confusion in the employer’s position regarding the details of the alleged dismissal. This includes some uncertainty about the date of the dismissal and its basis. This is reflected in the description given by the employer for the cessation; including “dismissal” and “abandonment of employment”, and the range of July 2012 dates nominated for that event as reflected in some documentation.

[28] However, this uncertainty arises from the particular circumstances of this matter and the fact that the employer did not expressly or directly dismiss the applicant. Rather, the applicant elected to be treated as being dismissed and took proceedings based upon that decision. That action was recognised by the employer when it issued employment separation certificates, apparently organised the pay out of some entitlements, and conducted itself in a manner consistent with the employment relationship having concluded.

[29] I will return to the consequences of the applicant’s election shortly.

The email from the Chief Executive Officer

[30] The applicant received an email from the Chief Executive Officer on 30 July 2012 indicating as follows:

“Dear KM

I am advised by our solicitors that your solicitor has sent an email to them this morning asserting you will not be attending for work today because your employment was terminated on 25 July 2012 as a result of your ‘exclusion’ from your email account.

I wish to make it clear that your employment has not been terminated.

The circumstances regarding your email account are as follows:

● On 23 July you commenced a period of sick leave (your medical certificate stated that you would be unable to work until after 27 July).
● During your absence we needed to access your email account and drop box to ensure that your position and work were covered during your period of leave. In order to do so we substituted a temporary password for your password.
● Your original password was re-instated and you access to the drop box restored this morning in anticipation of your return to work today.

In view of this explanation I offer you the opportunity to reconsider your position and invite you to contact me to discuss your return to work.

… ….”

[31] I note that this email was provided after the applicant had lodged the first AHRC complaint however it is not clear whether the employer was aware of the complaint at the time of providing the email. It is however clear that the employer was aware that the applicant was contending that she had been dismissed. In many circumstances this email could be pivotal in determining the status of the relationship between the applicant and the employer. That is, it is confirming that the employer did not intend a dismissal.

[32] However, in this case, the applicant elected to treat the employer’s actions as a dismissal and despite the email, the original AHRC complaint continued, and the subsequent unfair dismissal application was made, after the email was provided. Further, in a case where an employee elects to treat an action by an employer as grounds repudiating the employment contract (as was the case with the unfair dismissal application) it is generally not the subjective intention of the employer that matters.

[33] In general terms, the test in that regard is whether or not the words or conduct of the party would lead a reasonable person to conclude that the party did not intend or was unable to perform the contract. In Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd the High Court said:

“Repudiation is not ascertained by an inquiry into the subjective state of mind of the party in default; it is to be found in the conduct, whether verbal or other, of the party in default which conveys to the other party the defaulting party's inability to perform the contract or promise or his intention not to perform it or to fulfil it only in a manner substantially inconsistent with his obligations and not in any other way.” 5

[34] Further, in 2014, an additional AHRC complaint was made by the applicant, which again contended that she had been dismissed by the employer. This contention was apparently made on a broader basis than the original events of July 2012.

[35] In all of these circumstances, the email of 30 July 2012 is not an indication that the employment relationship remains on foot in 2016.

The impact of the election to be treated as having been dismissed

[36] Leaving aside for the moment the issues that might arise from the consideration of the principles of “issue estoppel”, it is appropriate that I consider the impact of the applicant’s election to be treated as being dismissed, upon the employment contract and relationship.

[37] There would appear to be three options that might flow depending on the conclusion reached in relation to the employer’s actual conduct leading to the applicant’s election:

● The employer’s conduct amounted to a repudiation of the contract which then left the applicant with the choice to elect to terminate or affirm the contract. However, there is a prerequisite that the applicant would only be faced with an election decision if she was ready and willing to perform the contract.

● If the applicant was not ready and willing to perform the contract, it is likely that she cannot take advantage of the other party’s repudiation merely because it came first in time; or 6



If she was ready and willing to perform and has elected to terminate the contract, then the election is considered to be final and the view of the Courts is that it generally cannot be retracted. 7

● The employer’s conduct did not amount to a repudiation of the contract but the applicant wrongly assumed this, but, in any event the applicant’s conduct amounts to the contract being repudiated for other reasons; or
● The employer’s conduct did not amount to a repudiation of the contract but the applicant wrongly assumed this based on an erroneous interpretation of the contract or the conduct. For example, the applicant may have assumed that the conduct of locking her out of the emails was vital to her performing her obligations under the contract, and therefore believed that the employer had repudiated the contract. She then attempted to terminate the contract, even though no such right may have existed, and therefore the applicant may have in fact repudiated the contract. 8

[38] In this case, it is not necessary or appropriate for the Commission to attempt to determine which of the three outcomes applies. I have heard no evidence about the events leading the applicant’s election and any of these scenarios would mean that the applicant is no longer an employee of the employer.

[39] In terms of the final scenario outlined above, I note that the Courts have held that the bona fides and conduct of a party propounding an “incorrect” interpretation of a contract will be relevant in assessing whether or not that party has repudiated the contract. 9 In this case, other than for recent events, it is apparent that both parties have, in effect, treated the employment contract as being at an end for some years and the litigation between them has been conducted in that light. In the applicant’s case, this includes the fact that even after the 30 July 2012 email, her litigation and conduct was consistent with the notion that the employment had concluded.

[40] In these circumstances it is unnecessary to deal with the notion, only raised in passing by employer’s representative, that an “issue estoppel” 10 should arise from the applicant’s conduct that would prevent her from now making a contrary contention that she has not been dismissed.

The capacity to abandon employment due to illness

[41] Given my earlier findings, this issue does not arise in the manner postulated by the applicant.

Continuing reference to the applicant on the employer’s website

[42] It is not disputed that at least for a period after July 2012, some continuing reference to the applicant was made on the employer’s website. This was explained by the employer as being the result of earlier work undertaken by the applicant that had not been taken down or modified.

[43] In the circumstances, this factor is not sufficient, when considered in context, to lead to the conclusion that there was on-going employment.

Outstanding entitlements due on termination

[44] The applicant contends that some or all of her entitlements were not paid out by the employer and that this is an indication that there was in fact no termination. The employer disputes the notion that there are any outstanding entitlements.

[45] I am not in a position to determine the dispute as to whether there are in fact outstanding entitlements and this is ultimately a matter for a Court of competent jurisdiction. As an indicator as to whether the employment has concluded, this is not a conclusive or reliable factor in this case.

[46] It is apparent that the employer made arrangements to pay what it considered to be the relevant entitlements due upon the conclusion of the relationship. The applicant has not been specific about the precise nature of the alleged non-payments however a reasonable inference is that these may relate to pay in lieu of notice, superannuation and potential sick leave. It is also likely that these are directly related to the dispute about the nature and timing of the conclusion of the employment contract. As such, this element could not lead to a conclusion that the employment contract has not ended.

Conclusion on continuing employment

[47] In all of the circumstances evident here, I do not consider that the applicant is presently employed by the employer. The employment contract concluded in consequence of the election by the applicant to be treated as being dismissed and the subsequent events and conduct by the parties.

[48] It is not necessary for present purposes to determine whether this occurred as a direct result of a dismissal by the employer or as the indirect consequence of the election made by the applicant.

4.2 The implications of the potential return to work arrangements

[49] Given the nature of the Commission’s jurisdiction established by the Act, if there was a reasonable prospect that an applicant worker might return to the workplace as a worker through a return to work program or other rehabilitation arrangements, I would be reluctant to conclude that no future risk is present, despite the absence of an existing employment contract or other contract as a worker.

[50] In this case, it appears that the applicant has made, and has had accepted, a workers compensation claim arising from her employment with the employer.

[51] It is common ground between the parties that the applicant’s workers compensation claim has been made under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the NSW Compensation Act). That Act creates an obligation on an employer to provide suitable employment for an injured worker in certain circumstances. Section 49 provides as follows:

“49 Employer must provide suitable work

(1) If a worker who has been totally or partially incapacitated for work as a result of an injury is able to return to work (whether on a full-time or part-time basis and whether or not to his or her previous employment), the employer liable to pay compensation to the worker under this Act in respect of the injury must at the request of the worker provide suitable employment for the worker.

Maximum penalty: 50 penalty units.

(2) The employment that the employer must provide is employment that is both suitable employment (as defined in section 32A of the 1987 Act) and (subject to that qualification) so far as reasonably practicable the same as, or equivalent to, the employment in which the worker was at the time of the injury.

(3) This section does not apply if:

(a) it is not reasonably practicable to provide employment in accordance with this section, or
(b) the worker voluntarily left the employment of that employer after the injury happened (whether before or after the commencement of the incapacity for work), or
(c) the employer terminated the worker’s employment after the injury happened, other than for the reason that the worker was not fit for employment as a result of the injury.

Note. See also Part 7 Chapter 2 of the Industrial Relations Act 1996 for provisions for protection of employment of injured workers.”

[52] The employer contended, in effect, that in the present circumstances the resumption of any employment relationship would be very problematic. There is some substance in this proposition and this may have some bearing upon s.49(3)(a) of the NSW Compensation Act. However, the applicant was not on notice that this approach would be argued and I do not propose to rely upon it in determining this matter.

[53] In terms of the other limitations in s.49(3), it is not suggested here that the applicant was dismissed because she was not fit for work. Indeed, I have found that the applicant elected to treat the withdrawal of email access to a repudiation of the employment contract. If there was a termination of employment at some point after the injury happened, this would appear to provide a limit in this case to the obligations established by s.49(1) and (2).

[54] Alternatively, if the applicant voluntary left her employment, which is one of the probable scenarios outlined earlier in this decision, this would also impact the operation of s.49 of the NSW Compensation Act.

[55] I note that there is apparently no litigation to attempt to force the employer to provide suitable work and based upon the present indications, such would appear to be problematic. In that light, it is difficult to see how this avenue would lead to a prospect that the applicant will be returning to the workplace as a worker.

[56] This aspect was not the subject of detailed submissions or argument by the parties. Accordingly, it is appropriate to note that should this issue ultimately be determined by a relevant Court or Tribunal making appropriate findings of an obligation under the NSW Compensation Act (which create an enforceable return to work obligation) this may provide grounds for the applicant to file a fresh application in this jurisdiction.

4.3 The applicant’s apparent involvement in voluntary organisations

[57] There is little detail before the Commission about this aspect and I understood the applicant to be relying upon this to indicate that there may be some future interactions, rather than as a direct answer to the immediate issue. In any event, even assuming that there may be some potential interaction between the Managing Director and the applicant in the context of some voluntary work or other such activity, for this to even be potentially relevant, the circumstances would require that the applicant be a worker in that context. This would in turn, require consideration of the nature of that work, whether the organisation was exclusively made up of volunteers and whether those organisations were conducting a business or undertaking. This arises from the definition of the term “worker” as defined in s.789FC of the FW Act. 11

[58] As presently contended, this aspect does not provide a context in which a relevant future risk arises within the meaning of the FW Act.

4.4 Conclusions on future risk

[59] I have found that the applicant is not presently an employee of the employer. I am also not satisfied that any potential return to work arrangements, or other circumstances, exist in this matter where there is a foreseeable future risk of the applicant being subject to bullying conduct as a worker whilst at work by the Managing Director of the employer.

5. Should the anti-bullying application be dismissed?

[60] Section 587 of the FW Act provides as follows:

“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.”

[61] As would be clear from the authorities outlined earlier in this decision, in the context of a finding that there is no foreseeable relevant future risk within the meaning of s.789FF of the FW Act, and accordingly, no reasonable prospects of success, a discretion arises whether to dismiss an application.

[62] In this matter, there would not appear to be any foreseeable basis which might lead to the applicant being in the workplace as a worker. On that basis, it is not appropriate in this case to attempt to further hear the application as it is not feasible that any order could be made. It is also not appropriate for the Commission to attempt to make some sort of declaratory judgement about the events leading to the application.

[63] There is no suggestion that any dismissal was directly connected to the making of this application and there are no proceedings on foot that have been drawn to the Commission’s attention, which might lead to the reinstatement of the applicant.

[64] I note that the applicant also sought, in the event that the Commission found that her application could not proceed, that the issues be referred to the Fair Work Ombudsman (the FWO). As outlined earlier, this included the claim that some entitlements were not paid out upon the cessation of the relationship. This is a matter that the applicant can raise directly with the FWO.

[65] The applicant also sought the referral of what she considered to be the ongoing risk to other workers at the workplace conducted by the employer. Given the nature of the Commission’s present jurisdiction as outlined above, there is no basis to deal with this under this application. Presently employed workers at the workplace may have the right to bring an application and I note that any work health and safety obligations are (also) a matter for the relevant work health and safety regulator – in this case, Workcover NSW.

[66] Given the circumstances of this matter, it is also appropriate to confirm that this decision arises from the particular manner in which the Parliament has expressed the Commission’s capacity to make orders in this jurisdiction. As such, I have not dealt with the dispute about the substantive merit of the application and nothing I have said in this decision should be taken to reflect upon that matter.

6. Conclusions and order

[67] For reasons set out earlier in this decision, I consider that it is appropriate that this present application be dismissed and I so order.

COMMISSIONER

Appearances:

A McKeough of Whittens & McKeough, with permission, for the employer.

KM, the applicant in person.

Hearing (telephone) details:

2016

Adelaide

7 April.

 1   In all of the particular circumstances I have “de-identified” the names of the parties and individuals in this decision. These circumstances include the fact that there have been defamation and contempt proceedings before the Supreme Court of New South Wales involving some undertakings by the applicant about the making of certain (directly related) allegations in public. Although the applicant considers that these undertakings have been relied upon unfairly in that matter, findings of the Court have been made and it is not appropriate that this Commission effectively undermine the purpose of those undertakings particularly when I have found that there is no basis upon which the substantive merits of this case can be dealt with. I also note that this matter has been heard at all times in a private conference or hearing and all parties either supported, or did not oppose, the issuing of a decision in this form.

 2   This position was clarified during final submissions.

3 [2014] FWC 6988.

 4   [2015] FWCFB 1661.

 5   Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623, 647-8, 657.

 6   Foran v Wight (1989) 168 CLR 385, 423.

 7   Sargent v ASL Developments (1974) 131 CLR 634, 655-56.

 8   Petrie v Dwyer (1954) 91 CLR 99, 104; Ogle v Comboyuro Investments Pty Ltd (1976) 136 CLR 444, 453.

 9   Green v Sommerville (1979) 141 CLR 594, 601, 611. See also Principles of Contract Law by Jeannie Paterson, Andrew Robertson and Arlen Duke (Thomson Reuters, 2009).

 10   See the discussion of the principles involved in Horsman v Commissioner of Main Roads [1999] FCA 1733.

 11   See Gaylene May McDonald [2016] FWC 300.

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