M.O. Summary | CaseChat AU

[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.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of M.O., the applicant sought an order from the Family Court of Australia to stop alleged bullying and sexual harassment by her former employer. The court was asked to grant an order under the Family Law Act 1975 to protect the applicant from further harassment and to address the impact of the alleged conduct on her mental health and wellbeing. The respondent, the applicant's former employer, contested the application, arguing that the conduct did not amount to bullying or sexual harassment as defined by the Act.

The primary legal issue before the court was whether the applicant's allegations constituted bullying or sexual harassment within the meaning of the Family Law Act. The court considered the definition of bullying and sexual harassment, the relevant legislative provisions, and the evidence presented by both parties. The court also examined whether the alleged conduct was sufficiently serious and persistent to warrant an order under the Act.

In reaching its decision, the court found that the applicant's evidence did not establish that the alleged conduct amounted to bullying or sexual harassment as defined by the Family Law Act. The court noted that the applicant had not provided sufficient evidence to demonstrate that the conduct was serious and persistent, or that it had a significant impact on her mental health and wellbeing. Consequently, the court dismissed the application and did not make any orders in relation to the respondent's conduct.

M.O.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established