Kris Luki
[2023] FWC 1072
•8 MAY 2023
| [2023] FWC 1072 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Kris Luki
(SO2022/593)
| COMMISSIONER P RYAN | SYDNEY, 8 MAY 2023 |
Application for an order to stop bullying
Introduction
Ms Kris Luki (Applicant) has made an application for an order to stop bullying pursuant to s.789FC of the Fair Work Act 2009 (FW Act) (Application). The Employer/Principal named in the application is Hanson Construction Material Pty Ltd (Respondent). The Applicant’s employment is based at the Respondent’s site located at Kulnura in New South Wales.
By the Application, the Applicant alleges she was bullied by Mr Grant Lahiff who is employed by the Respondent at its Kulnura site as Territory Transport Manager and was the Applicant’s manager.
The Respondent objected to the Application on the ground that the alleged bullying was reasonable management action, carried out in a reasonable manner.
After attempts to resolve the matter in conference were unsuccessful, the matter was programmed for hearing. The matter is listed to be heard on 11 May 2023.
On 18 April 2023, the Respondent made an application that the matter be dismissed on the basis that there is no risk that the Applicant will continue to be bullied at work and therefore, the application has no reasonable prospect of success (Interlocutory Application).
The Respondent was directed to file any evidence and submissions in support of the Interlocutory Application by 21 April 2023. The Applicant was directed to file any evidence and submissions in opposition to the Interlocutory Application by 28 April 2023.
The Respondent filed an outline of submissions and a witness statement of Ms Lilianne Leonardi (Exhibit 1), the Respondent’s regional human resources business partner for its Eastern Region. The Applicant filed submissions in response to the Respondent’s submissions and the witness statement of Ms Leonardi
The Interlocutory Application was listed for hearing on 1 May 2023. The Applicant represented herself. The Respondent and Mr Lahiff were represented by Mr N Napper, solicitor, with permission, as I was satisfied as to the matters set out in s.596(2)(a) of the FW Act.
Evidence of Ms Leonardi
Ms Leonardi deposed that on 7 July 2022, the Applicant was issued with a stand down letter from Mr Forrest which included allegations of misconduct and from 12 July 2022 the Applicant has been unfit and absent from work.[1]
Ms Leonardi deposed that Mr Lahiff is currently on a period of leave and upon his return from leave, he will be transferred on a permanent basis to a different division of the Respondent’s business at a different location. Ms Leonardi stated that this will ensure the Applicant and Mr Lahiff will no longer work together.[2]
Ms Leonardi also deposed that the Respondent has made permanent changes to Ms Luki’s reporting lines so that she will not report to Mr James Forrest, Mr Lahiff’s direct manager. Ms Leonardi stated this was in response to an allegation made by the Applicant in her witness statement filed in the substantive proceedings, that Mr Forrest is orchestrating an attempt to dismiss the Applicant from her employment.[3]
Ms Leonardi confirmed under cross examination that Mr Forrest is not based at the Kulnura site but may need to attend that site from time to time.
Respondent’s Submissions
The Respondent and Mr Lahiff denied any allegations that Ms Luki was bullied at work and submitted that for the purposes of the Interlocutory Application, the Commission is asked to consider only the second limb of s.789FF(1)(b) of the FW Act.
The Respondent submitted that it has put in place measures that will ensure the Applicant and Mr Lahiff will not, in any capacity, continue work together and therefore, there can be no risk that the Applicant will continue to be bullied at work by Mr Lahiff.
In relation to Mr Forrest, the Respondent submitted that the Applicant did not identify Mr Forrest as a named person in the Application and has identified in her witness statement filed in the substantive proceedings only one incident of alleged bullying, which is denied. The Respondent submitted that the Commission does not have jurisdiction to make any stop orders in relation to Mr Forrest as the alleged conduct was not ‘repeated’.
The Respondent submitted that in any event, the measures it has put place regarding Mr Forrest, means there is no risk that the Applicant will continue to be bullied at work by Mr Forrest
The Respondent submitted that the Application be dismissed under s.587(1)(c) of the FW Act because it has no reasonable prospects of success.
Applicant’s Submissions
While the Applicant’s submissions were largely directed towards whether she was bullied at work, rather than whether there was a continuing risk of her being bullied at work, the Applicant stated that she welcomed the steps taken by the Respondent to ensure that she and Mr Lahiff no longer work together on a permanent basis.
Although she welcomed the steps taken by the Respondent, the Applicant expressed some scepticism that the Respondent will implement these arrangements.
Relevant Legislative Provisions
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.”
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.”
Consideration
By the Interlocutory Application, the Respondent seeks that the Application be dismissed pursuant to s.587 of the FW Act as it has taken steps to ensure that there is no longer a risk that the alleged bullying will continue.
The legislative scheme relating to orders to stop bullying is not directed at punishing past bullying behaviour or compensation the victims of such behaviourrather it is directed at preventing future bullying.[4]
Accordingly, the Commission can only make an order pursuant to s.789FF of the FW Act if it is satisfied that the worker has been bullied at work by an individual or a group of individuals and there is a risk that the worker will continue to be bullied at work.
The Interlocutory Application is concerned only with whether the second limb in s.789FF(1)(b) can be satisfied having regard to the steps taken by the Respondent. In other words, irrespective of whether Applicant has been bullied at work, which is denied by the Respondent and Mr Lahiff, is the Commission satisfied there is a risk that the Applicant will continue to be bullied at work.
The steps taken by the Respondent will ensure that the Applicant and Mr Lahiff will not, in any capacity, continue work together, and will be based at different locations.
In relation to Mr Forrest, the steps taken will ensure that the Applicant will not report to Mr Forrest, directly or indirectly going forward. It is relevant to observe the allegations against Mr Forrest are not strong. The Applicant stated that she has not alleged bullying, harassment or discrimination by Mr Forrest on a continual or sustained basis. Furthermore, the extent of her complaint against Mr Forrest appears to be that he was the signatory on the stand down letter issued to her on 7 July 2022.
In Application by Mekuria, Alemtsehay (Alem)[5], the Commission accepted that the permanent relocation of the applicant with different break times to ensure no contact between the parties concerned satisfied him that there was no risk of continuing bullying, even on the assumption of past bullying having occurred.[6]
Having regard to the steps taken by the Respondent, even if I assume that the Applicant has been bullied at work by Mr Lahiff and/or Mr Forrest, I am satisfied that there is no risk that this will continue.
While the Applicant expressed some scepticism as to whether the Respondent would implement these steps, this did not go beyond a level of generalisation and does not provide a basis to not accept Ms Leonardi’s sworn evidence. If the Applicant returns to work and these measures have not been implemented as the Respondent has said it will, it is open to the Applicant to make a fresh application.[7]
It follows that there is no foreseeable risk that the Applicant will continue to be bullied at work by the individual or group named in the Application. There is no jurisdiction to make an order to stop bullying. Accordingly, the Application has no reasonable prospects of success.[8]
Conclusion
The Application is dismissed pursuant to s.587(1) of the FW Act.
COMMISSIONER
[1] Exhibit 1 at [10].
[2] Ibid at [13]-[14].
[3] Ibid at [14]-[15].
[4] Application by McInnes [2014] FWCFB 1440 at [9].
[5] [2018] FWC 6486.
[6] Ibid at [41].
[7] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines[2014] FWC 3408 at [17];
[8] Application by G.C [2014] FWC 6988 at [165]-[166]; Jeffrey Lyndon Piefke v Rio Tinto Aluminium Limited and Others [2022] FWCFB 140 at [14]-[16].
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