M.O.
[2023] FWC 873
•14 APRIL 2023
| [2023] FWC 873 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying and sexual harassment
M.O.
(SO2023/79)
| COMMISSIONER MCKINNON | SYDNEY, 14 APRIL 2023 |
Application for an order to stop bullying and sexual harassment
M.O. was employed as a casual baker’s assistant by C.J. Collyer Pty Ltd T/A Scotts Plaza Bakehouse. On 17 February 2023, M.O. applied for orders to stop bullying and sexual harassment at work under s.789FC of the Fair Work Act 2009.
The materials establish that by the time the application was made, the employment of M.O. had ceased. An employment separation certificate was subsequently issued to M.O. on 3 March 2023. At the hearing of this matter, the parties confirmed that there is no prospect of a resumption in the employment relationship. Further, on 5 April 2023, an apprehended personal violence order was made preventing any contact between M.O. and the person named in his application for 12 months.
On the facts, M.O. was not a ‘worker’ at the time his application was made. He was not entitled to make the application to the Commission. This position remains unchanged and M.O. is not a worker in the business of Scotts Plaza Bakehouse. There is also no foreseeable prospect of him being again ‘at work’ in the business. In the circumstances, there is no risk of bullying or sexual harassment by the person named in his application while M.O. is at work in the business.
For these reasons, the Commission cannot deal with the application made by M.O. Even if it could, no orders could be made to stop the alleged bullying and/or sexual harassment of M.O. while he was at work. The application is incompetent and has no reasonable prospects of success.[1] The appropriate step is to dismiss the application under section 587(1)(c) of the Act.
The application is dismissed.
COMMISSIONER
Appearances:
M.O. on his own behalf.
C Collyer for the respondent.
Hearing details:
2023.
Sydney (by video):
April 13.
[1] Grabovsky [2021] FWC 5559; Grabovsky [2020] FWC 3164.
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