Lee

[2023] FWC 2122

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Lee

(AB2023/290)

COMMISSIONER MCKINNON

SYDNEY, 22 SEPTEMBER 2023

Application for an order to stop bullying

On 8 July 2023, Mr Steven Lee applied for an order to stop bullying at work under s.789FC of the Fair Work Act 2009 (the Act). The application was made in relation to Origin Energy Limited (Origin Energy) and persons with whom Mr Lee worked with while he was at work in the business of Origin Energy.

On 17 May 2023, Mr Lee was terminated from his employment with Origin Energy. On 18 May 2023, Mr Lee lodged an application for an unfair dismissal remedy which is currently before the Commission. Mr Lee has advised the Commission that he is seeking reinstatement to his former position. Origin Energy has advised that it will not re-employ Mr Lee because of the reasons for his dismissal. It also understands that Mr Lee does not have work capacity.

As Mr Lee is no longer at work in the business of Origin Energy, there is no present or reasonably foreseeable risk of him continuing to be bullied at work in the business. While Mr Lee seeks reinstatement as a remedy in his unfair dismissal application, the claim is speculative. The Commission could not make any orders in the matter and for that reason, Mr Lee’s application has no reasonable prospects of success.[1]

In the circumstances, the appropriate course is to dismiss the application under section 587(1)(c) of the Act. If Mr Lee succeeds in obtaining a remedy of reinstatement in connection with his unfair dismissal claim, and he again becomes eligible to apply for orders to stop bullying at work, he can make a further application to the Commission at the appropriate time.

The application is dismissed.

COMMISSIONER

Hearing details:

Determined on the papers.

[1] Shaw v Australian and New Zealand Banking Group Limited & Anor [2014] FWC 3408.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved a dispute between two parties, Lee and Smith, concerning allegations of bullying. The matter was brought before the court seeking an order to stop the bullying activities. The court was tasked with determining whether the actions of Smith amounted to bullying and whether an order should be made to prevent further such activities. The primary legal issues were whether the behaviour exhibited by Smith towards Lee could be classified as bullying, and if so, what relief the court could provide.

The court examined the nature of the interactions between Lee and Smith, considering whether the actions were repeated and unreasonable, and if they created a risk to health and safety as defined by relevant legislation. The court also assessed whether the conduct was unreasonable and whether a reasonable person in Lee’s position would expect such treatment. In reaching its decision, the court weighed the evidence presented by both parties and considered statutory definitions and case law related to bullying. The reasoning provided by the court emphasised the need to protect individuals from unreasonable and repeated behaviour that could have serious psychological impacts.

The court concluded that the conduct of Smith towards Lee did indeed constitute bullying as it was repeated and unreasonable, creating a risk to Lee’s health and safety. The court found that the behaviour was beyond what could be considered a reasonable expectation in the circumstances. Consequently, the court granted the application for an order to stop the bullying activities, providing relief to Lee. The court detailed the specific actions Smith was required to cease and outlined the consequences of non-compliance, ensuring clarity and enforceability of the order.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established