Linda Beaver

[2023] FWC 3460

[2023] FWC 3460

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Linda Beaver

(AB2023/489)

COMMISSIONER MCKINNON SYDNEY, 22 DECEMBER 2023

Application for an order to stop bullying at work – whether a ‘worker’

1. On 10 October 2023, Ms Linda Beaver applied for orders to stop bullying at work under s.789FC of the Fair Work Act 2009. The application is made in relation to The Scout Association of Australia, New South Wales Branch (Scouts NSW) and two of its officers. Ms Beaver’s application states that she is a volunteer for Scouts NSW. If so, she would be a ‘worker’ within the scope of the Commission’s jurisdiction to deal with bullying at work.

1. Scouts NSW objects to the application on the basis that Ms Beaver is no longer a volunteer or a ‘worker’ in its business. It also submits that Ms Beaver cannot be a volunteer because she is no longer a member of Scouts NSW. It is not necessary to decide this second limb of the objection raised by Scouts NSW.

1. The question is whether Ms Beaver is a worker in the business of Scouts NSW, and related to that question, whether the application has reasonable prospects of success. I find that the answer to each question is ‘No’, and my reasons are below.

Consideration

1. On 29 November 2022, Ms Beaver was stood down from her voluntary role as District Commissioner, Southern Ranges District. On 21 December 2022, she commenced in the role of Regional Advisor, South Coast and Tablelands Region – which Ms Beaver describes as “the role you are given when you have no role”.

1. In January 2023, Scouts NSW says Ms Beaver was required, along with all other current personnel, to register as a member on its internal system, “Trek 2”. She did not do so, for reasons that are not necessary to record.

1. The role of Regional Advisor, South Coast and Tablelands Region was recalled, and then ceased to exist on 17 April 2023.

1. After Ms Beaver did not register on the Trek 2 system in the time requested, Scouts NSW deemed her as having resigned from membership with effect from 7 July 2023. Accordingly, in mid-July 2023, Ms Beaver’s access to her Scouts NSW email was blocked.

1. Over the following months, there was correspondence between the parties about Ms Beaver’s concerns with how she had been treated by the organisation. On 8 October 2023, after having sought to meet with the Chief Commissioner about her concerns, Ms Beaver withdrew her request for the meeting and indicated that she did not see further value in meeting with Scouts NSW directly.

1. At the time of her application on 10 October 2023, Ms Beaver was not sure if she remained a member of Scouts NSW but assumed that she was. Scouts NSW assumed to the contrary. It is not necessary to decide whether Ms Beaver remains a member of Scouts NSW or not, because there is no dispute that Ms Beaver is no longer performing any work for Scouts NSW. Scouts NSW says it will not offer Ms Beaver any further volunteer or employed roles. Ms Beaver accepts this as the reality and acknowledges that she has no capacity to alter its position in this regard.

Conclusion

1. On the materials before me, and having heard from the parties, I find that Ms Beaver was not a worker in the business of Scouts NSW at the time of her application to the Commission. She was no longer performing any role, whether paid or as a volunteer, for Scouts NSW, and that remains the case. Further, there is no likelihood that a working relationship between the parties will be restored in the foreseeable future. Accordingly, there is no risk that Ms Beaver will continue to be bullied by the individuals named in her application while she is at work in Scouts NSW. The application has no reasonable prospects of success.[1]

1. The application is dismissed under section 587(1)(c) of the Act.

COMMISSIONER

Appearances:

L Beaver on her own behalf
B Gottlieb of Sparke Helmore Lawyers on behalf of the respondent.

Hearing details:

2023.
Sydney (by video):
November 30.

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

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