Mary-Anne Brice v Brooke Coombes, Kim Sutherland, Judy Penn, Blue Iris Support Services, Sarah Elliot, Baye Niasse Abdul Rakib
[2022] FWC 1702
•20 JULY 2022
| [2022] FWC 1702 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying and sexual harassment
Mary-Anne Brice
v
Brooke Coombes, Kim Sutherland, Judy Penn, Blue Iris Support Services, Sarah Elliot, Baye Niasse Abdul Rakib
(SO2022/200)
| COMMISSIONER HUNT | BRISBANE, 20 JULY 2022 |
Application for an FWC order to stop bullying and sexual harassment
On 1 April 2022, Ms Mary-Anne Brice made an application pursuant to s.789FC of the Fair Work Act 2009 (the Act) to the Fair Work Commission (the Commission) for an order to stop bullying. Ms Brice was employed by Blue Iris Support Services (Blue Iris) at the time the application was made. Ms Brice sought for the Commission to make an order to stop bullying to be made against Ms Brooke Coombes, Ms Kim Sutherland, Ms Judy Penn, Ms Sarah Elliot, Ms Baye Niasse and Mr Abdul Rakib.
A telephone conference was listed for 10 May 2022. Ms Brice attended, along with all of the named persons except for Ms Niasse.
On 17 May 2022, I issued directions for the filing of material by the parties, notifying a hearing of the application for two days in mid-July 2022.
On 18 May 2022, Ms Brice left the following voicemail for my Associate:
“Good morning, [name]. It’s Mary-Anne Bryce speaking. I’m just calling in relation to a phone call and an email that I’ve received today from Blue Iris. They are terminating employment. The last hearing that we had with the Commissioner, she stated that if people were not employed, the hearing was not to go forward. That was my understanding. I’m comfortable with a termination. I understand that there are other avenues that I can go down in regards to the workplace bullying and discrimination. If you can just advise me exactly what’s to take place, that’s fine. I have no problem. You know, no longer being employed or going forward with this hearing. Thanks for your time. Bye, bye.”
On 18 May 2022, Ms Coombes emailed my chambers to advise that Blue Iris had terminated Ms Brice’s employment.
On the same day, my Associate emailed Ms Brice and directed her to the Commission’s Workplace Advice Service. The following email was then sent from my chambers:
“Dear Parties
Reference is made to the above matter.
The Commissioner notes the below correspondence.
As advised by the Commissioner at the Conference, if a person who is an Applicant for orders to stop bullying ceases to be employed by the Employer Party, the application for orders to stop bullying cannot succeed. This is because, for orders to be made, the Commission must be satisfied that there is a risk of future bullying of the Applicant while at work with the Employer Party. In circumstances where the Applicant is no longer employed by the Employer Party, this element cannot be satisfied. Similarly, if a Person Named is no longer employed where the Applicant undertakes work, orders are unable to be made that person.
Accordingly, the Commissioner invites Ms Brice to reply to this email to confirm that she wishes to withdraw this application.
Ms Brice has been made aware of other applications she may wish to make, and that is a matter for her if she wishes to commence an application. For the sake of clarity, no legal advice has been provided to Ms Brice from the Commissioner’s chambers. A link has been provided to access information about the Commission’s Workplace Advice Service.
If Ms Brice does not withdraw her application, the Commissioner may consider dismissing this application. An example of such a decision can be found here: Application by Knowles, Kelson Anthony - [2021] FWC 6373.”
To-date, Ms Brice has not responded to the above email and has not, in my view, formally discontinued her application.
Relevant legislation
A worker who reasonably believes that he or she has been bullied at work may apply to the Commission for an order to stop bullying. Section 789FC of the Act provides:
“789FC Application for an FWC order to stop bullying or sexual harassment
(1) A worker who reasonably believes that he or she has been bullied or sexually harassed at work may apply to the FWC for an order under section 789FF.
(2) For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force.
Note: Broadly, for the purposes of the Work Health and Safety Act 2011, a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.
(3) The application must be accompanied by any fee prescribed by the regulations.
(4) The regulations may prescribe:
(a) a fee for making an application to the FWC under this section; and
(b) a method for indexing the fee; and
(c) the circumstances in which all or part of the fee may be waived or refunded.”
Section 789FD of the Act sets out when a worker has been bullied at work, as below:
“789FD When is a worker bullied at work or sexually harassed at work?
(1)A worker is bullied at work if:
(a) while the worker is at work in a constitutionally-covered business:
(i) an individual; or
(ii) a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
(b) that behaviour creates a risk to health and safety.
(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.
(2A) A worker is sexually harassed at work if, while the worker is at work in a constitutionally-covered business, one or more individuals sexually harasses the worker.
(3) If a person conducts a business or undertaking (within the meanining of the Work Health and Safety Act 2011) and either:
(a) the person is:
(i) a constitutional corporation; or
(ii) the Commonwealth; or
(iii) a Commonwealth authority; or
(iv) a body corporate incorporated in a Territory; or
(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;
then the business or undertaking is a constitutionally-covered business.”
The circumstances in which the Commission may make orders to stop bullying are set out in s.789FF of the Act, as produced below:
“789FF FWC may make orders to stop bullying or sexual harassment
(1) If:
(a) a worker has made an application under section 789FC; and
(b) either or both of the following apply:
(i) the FWC is satisfied that the worker has been bullied at work by an individual or a group of individuals, and the FWC is satisfied that there is a risk that the worker will continue to be bullied at work by the individual or group;
(ii) the FWC is satisfied that the worker has been sexually harassed at work by one or more individuals, and the FWC is satisfied that there is a risk that the worker will continue to be sexually harassed at work by the individual or individuals;
then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to:
(c) if subparagraph (b)(i) applies--prevent the worker from being bullied at work by the individual or group; or
(d) if subparagraph (b)(ii) applies--prevent the worker from being sexually harassed at work by the individual or individuals; or
(e) if subparagraphs (b)(i) and (ii) apply:
(i) prevent the worker from being bullied at work by the individual or group; and
(ii) prevent the worker from being sexually harassed at work by the individual or individuals.
(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
Pursuant to ss.789FF(1)(b)(i) of the Act, for the Commission to make orders with respect to an application under section 789FC for an order to stop bullying, it must be satisfied that the worker was bullied at work and that there is a risk that the worker will continue to be bullied at work.
The leading authority on the application of s.789FF(1)(b) in analogous cases is Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines.[1] In that case Gostencnik DP held that:
“[15] As s. 789FF(b) makes clear, I must be satisfied not only that Mr Shaw has been bullied at work by an individual or group of individuals but also that there is a risk that he will continue to be bullied at work by that individual or group of individuals. Therein lays the difficulty for Mr Shaw. It seems to me that I have no power to make an order to stop bullying unless I can be satisfied relevantly that there is a risk that at work Mr Shaw will continue to be bullied by the individual or group of individuals identified in his application.
[16] It is clear that Mr Shaw is no longer employed by ANZ. The employment relationship has ended. That Mr Shaw is taking steps to seek a remedy in relation to his dismissal and that that may result in reinstatement at some point in the future does not have a bearing on the question that I must answer and is speculative and uncertain. It seems to me clear that there cannot be a risk that Mr Shaw will continue to be bullied at work by an individual or group of individuals identified in his application because Mr Shaw is no longer employed by ANZ and therefore is no longer at work.
[17] It necessarily follows that I do not have power to make an order to stop bullying and, as a consequence, I am satisfied that Mr Shaw’s application has no reasonable prospect of success.”
This position was subsequently affirmed by the Full Bench in Obatoki v Mallee Track Health & Community Services and Others.[2]
It is not disputed that Ms Brice is no longer employed by Blue Iris. Therefore, there is no present risk that Ms Brice will continue to be bullied at work, noting that it is not necessary to determine if Ms Brice was bullied at work in the past. Accordingly, the requirements of s.789FF(1)(b)(i) cannot be satisfied.
Section 587(1) of the Act provides:
“587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.”
In considering all of the circumstances, I am satisfied that there is no risk of Ms Brice being bullied at work pursuant to s.789FF(1)(b)(i) of the Act. I am also satisfied that as a result, the application has no reasonable prospects of success, and it is appropriate in all of the circumstances to dismiss the application.
Accordingly, the application is dismissed under s.587(1)(c) of the Act.
COMMISSIONER
[1] [2014] FWC 3408.
[2] [2015] FWCFB 1661 at [16].
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