Marion Hopkins

[2022] FWC 1271

[2022] FWC 1271

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Marion Hopkins

(SO2021/85)

COMMISSIONER WILLIAMS PERTH, 24 MAY 2022

Application for an FWC order to stop bullying

1. This decision concerns an application made by Mrs Marion Hopkins (Mrs Hopkins or the Applicant) under section 789FC of the Fair Work Act 2009 (the Act). The Employer/Principal is Living Stone Foundation Inc (the Employer/Principal).

1. A telephone conference was conducted in this matter on 3 February 2022. Following the conference, the Employer progressed an investigation into the allegations of bullying by the Applicant.

1. On 7 April 2022, the outcome of investigation into the Applicant’s complaints was sent to the Applicant. The investigation concluded that of the 22 allegations of bullying, none were substantiated.

1. On 14 April 2022, the Applicant advised in a phone call with my associate that she had been made redundant from her employment. My associate explained to her that in light of her redundancy, she may not be eligible for a Stop Order claim, as her working relationship with the Employer had ended.

1. On 5 May 2022 I wrote to the Applicant and explained my preliminarily view that in these circumstances the Commission has no power to make an order and so this application has no reasonable prospects of success and must be dismissed. The Applicant was invited to provide submissions in response to the preliminarily view expressed by no later than 20 May 2022.

1. As of 24 May 2022, no response has been received by the Applicant.  

The legislation

1. The relevant parts of the legislation are set out below.

“789FA Guide to this Part

This Part allows a worker who has been bullied at work to apply to the FWC for an order to stop the bullying.

789FB Meanings of employee and employer

In this Part, employee and employer have their ordinary meanings.

Division 2—Stopping workers being bullied at work

789FC Application for an FWC order to stop bullying

(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.

…

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.”

Consideration

1. With respect to the matters considered below it should be remembered that the Commission has made no decision as to whether or not Mrs Hopkins has been bullied at work in the past.

1. The Commission only has jurisdiction to make an order under section 789FF of the Act if, amongst other prerequisites, the Commission is satisfied there is a risk of continued bullying of the Applicant at work. Where there is not a risk of future bullying at work there will be no reasonable prospect of success of an application for an order to stop bullying.

1. The Commission under section 587(1)(c) of the Act is specifically empowered to dismiss an application if it has no reasonable prospect of success.

1. In the circumstances of this matter, I find that there is no reasonable prospect of an order being made by the Commission under section789FF of the Act. Consequently, I will exercise my discretion and dismiss this application that was made under section 789FC of the Act.

1. An Order [PR741914] to this effect will be issued in conjunction with this decision.

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