Mohamad Abouhasna

[2024] FWC 1675

[2024] FWC 1675

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Mohamad Abouhasna

(AB2024/186)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 26 JUNE 2024

Application for an order to stop bullying at work

1. On 18 March 2024 Mr Mohamad Abouhasna applied for an order to stop bullying at work pursuant to s 789FC of the Fair Work Act 2009 (Cth) (Act). The application was made in relation to Greater Western Water Corporation (respondent) and a person with whom Mr Abouhasna interacted while at work (the person named).

1. Following a conference convened before me, on 17 May 2024 Mr Abouhasna informed my chambers that his employment had ceased. The respondent confirmed this on 20 May 2024. Accordingly, it is not in dispute that there is no ongoing employment relationship between the parties.

1. On 21 May 2024 my chambers sent correspondence to the parties that advised that I had formed the preliminary view that no stop bullying order could be made in circumstances where there is no ongoing employment relationship and therefore no apparent risk of future bullying at work. The parties were given an opportunity to provide responsive submissions to the question of whether Mr Abouhasna’s application should be dismissed pursuant to s 587 of the Act, as it appeared to have no reasonable prospect of success.

1. On 30 May 2024 Mr Abouhasna filed submissions in which he says that the application should not be dismissed. Mr Abouhasna contends that there is a continued risk of bullying on the basis that he would be ‘submitting an unfair work dismissal claim’ which could result in his return to work.[1] Mr Abouhasna further submits that delaying the stop bullying application would disadvantage his career and financial position. Mr Abouhasna says that in the event that he is reinstated pursuant to his dismissal claim he would need to wait for the stop bullying application to resolve before he could return to work, which disadvantages him.[2]

1. The respondent submits that where there is no ongoing employment relationship between the parties, the Commission cannot be satisfied that there is a risk Mr Abouhasna will continue to be bullied at work and therefore no stop bullying order can be made. It further says that if Mr Abouhasna is successfully reinstated as a result of another application to the Commission, he is not precluded from making a fresh application for an order to stop bullying. If Mr Abouhasna chose to do so, he may rely on allegations raised in the present application.[3]

Consideration

1. Section 789FF of the Act sets out when the Commission may make an order to stop bullying. It relevantly provides that the Commission must be satisfied both that (a) the worker has been bullied at work, and (b) there is a risk that the worker will continue to be bullied at work.

1. It is not in dispute that the employment relationship between the parties has ceased. In such circumstances, I cannot be satisfied of the matter at (b) above, that there is a risk that Mr Abouhasna will continue to be bullied at work. Accordingly, the Commission is not empowered to make an order to stop bullying. It follows that I am satisfied that the application has no reasonable prospects of success.[4]

1. Section 587 of the Act provides the Commission with the power to dismiss an application on its own initiative or upon application. It relevantly provides as follows:

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.

….

(3) The FWC may dismiss an application:

(a) on its own initiative; or
(b) on application.

1. The power to dismiss an application pursuant to s 587 of the Act is discretionary and should be exercised with caution. In deciding whether to exercise the discretion, I have considered Mr Abouhasna’s submission that his application should not be dismissed ‘on the basis that we would be back requesting a stop bullying order in the event a separate case handled by Fairwork succeeds.’[5]

1. Contrary to Mr Abouhasna’s contention that his ‘separate case’ is an ‘unfair dismissal claim,’ it is apparent from the matter number produced that Mr Abouhasna has made general protections claim involving dismissal, pursuant to s 365 of the Act. This is not an application for an unfair dismissal remedy.

1. I make no findings as to the prospects of Mr Abouhasna’s s 365 application, and it is not before me for consideration. However, I observe that in contrast to an unfair dismissal application, reinstatement is not the primary remedy to be considered in relation to a general protections claim. It follows that should Mr Abouhasna’s general protections application succeed, there is no statutory imperative that reinstatement first be regarded as inappropriate before any consideration is given to the appropriateness of compensation as a remedy.[6] Accordingly, Mr Abouhasna’s contention that he may be reinstated is far from certain, and speculative at best.

1. Further, should a certificate by issued by Commission pursuant to s 368(3) of the Act, Mr Abouhasna’s general protections application will proceed before the courts.[7] The outcome of such an application may take some time. I do not consider that it is appropriate that Mr Abouhasna’s application for an order to stop bullying be held in abeyance for a lengthy and uncertain period while his general protections claim is resolved in a different jurisdiction.

1. I have afforded the following matters considerable weight in considering whether to exercise my discretion to dismiss the application. First, having regard to my conclusion at [7] of this decision, Mr Abouhasna’s application for a stop bullying order has no reasonable prospects of success at this point in time, where he is no longer an employee of the respondent and there is no future risk of bullying at work by an individual identified in his application. Second, I observe that should Mr Abouhasna be reinstated or otherwise re-employed by the respondent, he is at liberty to make a further application under s 789FCof the Act, in which he can rely upon the circumstances contained in the present application. In my view, this significantly ameliorates any potential prejudice occasioned by the dismissal of the application.

1. For these reasons, I consider that it is appropriate to exercise my discretion to dismiss Mr Abouhasna’s application pursuant to s 587(1)(c) of the Act.

Order and disposition

1. Mr Abouhasna’s application for an order to stop bullying is dismissed.

DEPUTY PRESIDENT

[1] Applicant’s submissions dated 30 May 2024

[2] Applicant’s submissions dated 13 June 2024

[3] Respondents’ submissions dated 5 June 2024

[4] Shaw v Australia and New Zealand Banking Group Limited t/a ANZ Bank; Bianca Haines[2014] FWC 3408

[5] Applicant’s submissions dated 13 June 2024 

[6] In the context of unfair dismissal applications, see Fair Work Act 2009 (Cth), s 390(3)

[7] Subject to any consent arbitration in the Commission pursuant the Fair Work Act 2009 (Cth), s 369

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