Mr Aiman Fahda
[2023] FWC 740
•28 MARCH 2023
| [2023] FWC 740 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Mr Aiman Fahda
(SO2022/624)
| DEPUTY PRESIDENT EASTON | SYDNEY, 28 MARCH 2023 |
Application for an order to stop bullying – applicant dismissed from employment after making a stop bullying application – no risk that the worker will continue to be bullied at work – no reasonable prospects that the Commission will make an order for relief – no reasonable prospects of success – application dismissed.
On 13 December 2022 Mr Fahda commenced proceedings pursuant to s.789FC of the Fair Work Act 2009 (Cth) alleging that BUPA HI Pty Ltd Trading as BUPA and certain named employees had engaged in bullying. At the time Mr Fahda made his application BUPA was investigating his bullying allegations under its own internal procedures.
Private conferences were convened in the Fair Work Commission in relation to the bullying application and the parties were awaiting the outcome of BUPA’s internal investigation.
On 17 February 2023 Mr Fahda was dismissed from his employment. Mr Fahda was subject to a probation period and was dismissed shortly before the end of the probationary period.
On 21 February 2023 Mr Fahda made an application under s.365 of the Act for the Commission to deal with a dispute about Mr Fahda’s dismissal and his claim that BUPA contravened the General Protections provisions of the Act.
Because Mr Fahda’s employment has ended a significant question emerged as to whether the stop bullying application has any reasonable prospects of success or whether it should be dismissed under s.587(1)(c).
The Commission can only make orders in stop-bullying applications if it is satisfied that there is a risk that the applicant worker will continue to be bullied at work (per s.789FF(1)(b)(ii)). The Commission can only make orders to prevent the applicant worker from being bullied at work in the future (per s.789FF(1)).
If there is no reasonable prospect that the Commission could be satisfied that there is a risk that the worker will continue to be bullied at work, the application by the worker has no reasonable prospect of success. In other words, there is no reasonable prospect that an application will be successful if there is no reasonable prospect that the Commission could make any orders for relief.
Mr Fahda argued that his bullying application should continue because there is a possibility that a Court will order BUPA to reinstate him if he is successful in his general protections application. I do not find this argument persuasive because:
(a)there is no certainty that Mr Fahda will be successful in his general protections application;
(b)there is no certainty, even if Mr Fahda is successful in his general protections application, that a Court would order his reinstatement;
(c)even if a Court were to order reinstatement, there is no certainty that the individuals whom Mr Fahda says have bullied him would still be employed at the time the Court orders reinstatement; and
(d)if a Court were to order reinstatement, and if Mr Fahda had concerns that he might be bullied once reinstated, he can make a fresh application for a stop bullying order at that time.
Mr Fahda also argued that in the interests of justice, and as a matter of discretion, the Commission should continue to hear his case because, he said, other employees were also bullied by BUPA. Mr Fahda urged the Commission to take steps to prevent future bullying of those other employees.
The Commission is a creature of statute and can only deal with bullying applications made by individual workers. It has no power to embark upon a rolling enquiry into whether other workers have been bullied or are likely to be bullied in the future. Whilst the Commission has discretion within the breadth of powers conferred upon it by the Act, the Commission has no discretion to act outside of its statutory power.
The only available finding in the circumstances is that there is no reasonable prospects that Mr Fahda will be successful in obtaining orders in his bullying application because there is no reasonable prospect that the Commission could be satisfied that there is a risk that Mr Fahda will continue to be bullied at work by the named individuals.
As such the application must be dismissed under s.587(1)(c). An order will be issued separately (PR760650).
DEPUTY PRESIDENT
Appearances:
Mr A Fahda, Applicant
Mr C Cook for the Respondent
Hearing details:
2023.
Sydney (By Video using Microsoft Teams)
March 28.
Printed by authority of the Commonwealth Government Printer
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