Leonardo Emilio de Luca
[2022] FWC 2834
•21 OCTOBER 2022
| [2022] FWC 2834 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Leonardo Emilio de Luca
(SO2022/327)
| COMMISSIONER P RYAN | SYDNEY, 21 OCTOBER 2022 |
Application for an FWC order to stop bullying
Introduction and Background
Mr Leonardo Emilio de Luca (Applicant) has made an application for an order to stop bullying. The Employer/Principal named in the application is Props Strata Plan 3686 Retford Hall (Respondent), where the Applicant was engaged under the trading name, Taking Care of Business, to provide building management services.
By the application, the Applicant alleges he was bullied by Tamar Beck (Named Person), a member of the Respondent’s strata committee.
The Respondent and the Named Person object to the application on two grounds:
(i)that the Applicant is not a worker within the meaning of s.789FC (2) of the Fair Work Act 2009 (FW Act); and
(ii)that the Applicant was not working in a constitutionally covered within the meaning of s.789FD (3) of the FW Act.
On 30 August 2022, directions were issued to the parties in relation the Respondent’s jurisdictional objections with the matter to be heard on 25 October 2022.
In its reply materials filed on 30 September 2022, the Respondent raised a further jurisdictional objection, namely that the Respondent had determined to terminate the arrangement with the Applicant effective from 4 October 2022, and therefore there can be no risk that the Applicant could be bullied at work after 4 October 2022.
I listed the matter for further case management conference on 12 October 2022. During the case management conference, the Respondent confirmed that the Applicant’s services were terminated effective from 4 October 2022 and that a payment in lieu of the provision of services for the period up to and including 31 October 2022 had been made. While the Applicant questioned whether the arrangement ends on 4 October or 31 October, he agreed that he was no longer required to perform services or attend the Respondent’s premises.
Leaving to one side the Respondent’s jurisdictional objections set out in paragraph [3], the matters set out in paragraphs [5] and [6] raise the issue of whether the application has no reasonable prospects of success in circumstances where a precondition to the making of any order pursuant to s.789FF of the FW Act, is that the Commission must be satisfied there is a risk that the Applicant will continue to be bullied at work.
The parties agreed that the issue of whether the application has no reasonable prospects of success be determined on the papers ahead of the hearing on 25 October 2022. The Applicant was also provided with the opportunity to file any submissions on this by 4:00pm on 19 October 2022.
Applicant’s Submissions
In summary the Applicant acknowledged that he received a termination letter on 4 October 2022 but submitted that as he was being paid in lieu of the provision of services until 31 October 2022, he is still engaged by the Respondent until that date.
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
The Commission can only make orders pursuant to s.789FF of the FW Act if it is satisfied that there is a risk that the worker will continue to be bullied at work.
As stated above, on 4 October 2022, the Respondent terminated its arrangement with the Applicant. Since that date the Applicant has not been required to provide any services to the Respondent, nor has he been required to attend the Respondent’s premises, which the Applicant confirmed during the case management conference on 12 October 2022.
The consequence of the Respondent terminating its arrangement with the Applicant effective from 4 October 2022, is that the Applicant is not a worker nor at work in the Respondent’s business. Even if I was to accept the Applicant’s submission that he remains engaged by the Respondent until 31 October 2022, the Applicant accepts that he is not required to perform any services nor attend the Respondent’s premises during that period.
It follows that there is no foreseeable risk that he will continue to be bullied at work.
Accordingly, the application has no reasonable prospects of success.[1]
Conclusion
The application is dismissed pursuant to s.587(1) of the FW Act.
COMMISSIONER
Hearing details:
On the papers.
Final written submissions:
Respondent, 30 September 2022.
Applicant, 19 October 2022.
Printed by authority of the Commonwealth Government Printer
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[1] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines[2014] FWC 3408 at [15]-[17]; 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]-[17].
Printed by authority of the Commonwealth Government Printer
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