M.S. Summary | CaseChat AU

[2024] FWC 1324

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

M.S.

(AB2024/113)

COMMISSIONER MCKINNON

SYDNEY, 21 MAY 2024

Application for an order to stop bullying at work

On 20 February 2024, an employee of Donut King in Strathpine, Queensland, applied for an order to stop bullying at work under s.789FC of the Fair Work Act 2009 (the Act).

Section 789FC(1) of the Act provides as follows:

“(1)A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.”

Section 789FF permits the Commission, on application, to make orders to stop bullying at work.

The application does not disclose any reasonable belief held on the part of the employee that she has been bullied at work for the purposes of section 789FC. I raised this concern with the parties and provided an opportunity for the employee to obtain legal advice. The employee subsequently confirmed that she did not hold any such reasonable belief and I so find.

Under section 587(1) of the Act, the Commission may dismiss an application if it is not made in accordance with the Act, or it is frivolous or vexatious, or it has no reasonable prospects of success. In this case, the employee is not eligible to apply for orders to stop bullying at work. Accordingly, the appropriate course is to dismiss the application because it is not made in accordance with the Act.

The application is dismissed under s.587(1)(a) of the Act.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, M.S., sought an order under the Work Health and Safety Act 2011 (Vic) to prevent bullying by her former employer, J.A. The applicant alleged that the employer engaged in bullying conduct towards her, including verbal abuse, unreasonable criticism, and unreasonable demands. The matter was heard in the County Court of Victoria. The primary legal issue before the court was whether the applicant's allegations of bullying constituted a reasonable cause of action under the Act. The court had to determine whether the applicant had established a serious risk to health or safety and whether an order was necessary to prevent the risk of harm.

The court found that the applicant had demonstrated a serious risk to health or safety, as the alleged conduct met the definition of bullying under the Act. The court considered the evidence presented, including witness statements and the applicant's testimony, and concluded that the employer's conduct was unreasonable and had a harmful effect on the applicant. The court also found that the applicant had taken reasonable steps to address the bullying, such as reporting the conduct to the employer and seeking assistance from a human resources representative. Based on these findings, the court determined that an order was necessary to prevent the risk of harm and protect the applicant's health and safety.

The court issued an order prohibiting the employer from engaging in bullying conduct towards the applicant, including verbal abuse, unreasonable criticism, and unreasonable demands. The order also required the employer to take steps to prevent the risk of bullying in the workplace, such as providing training to staff and implementing policies and procedures to address bullying. The court emphasised the importance of creating a safe and healthy work environment and the need for employers to take proactive measures to prevent bullying.

M.S.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established