DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Mr George Melissourgos
v
The University Of Newcastle; Ms Tammy Robinson
(AB2016/705)

COMMISSIONER SAUNDERS

NEWCASTLE, 8 DECEMBER 2016

Application for an order to stop bullying.

[1] Mr Melissourgos has made an application for an order to stop bullying (the Application) pursuant to section 789FC of the Fair Work Act 2009 (Cth) (the Act).

[2] On 24 November 2016, the parties participated in a preliminary conference by telephone before the Fair Work Commission (the Commission).

[3] During the preliminary conference Mr Melissourgos confirmed that he was no longer employed by the respondent.

[4] In those circumstances, I informed the parties following the preliminary conference that it may be appropriate for the Commission to exercise its discretion pursuant to section 587(1)(c) of the Act to dismiss the Application on the basis that it has no reasonable prospects of success, because there is no risk that Mr Melissourgos will continue to be bullied at work by any individual or group. Before making any decision in that regard, I invited Mr Melissourgos to make submissions in relation to that issue.

[5] In an email to the Commission dated 7 December 2016, Mr Melissourgos informed the Commission that he was reluctant to discontinue the Application for an order to stop bullying due to the following reasons:

“1. Bullying did occur and has not been addressed;

2. My application was submitted prior to termination;

3. I believe my termination was a direct response to both the bullying and lodging of my grievance;

4. I am unaware of any further action that can be taken;

5. I would like clarification on what other actions can be taken if the grievance is pursued.”

Legislative framework

[6] Section 789FF(1) of the Act provides as follows:

“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.”

[7] If there is no risk that a worker will continue to be bullied “at work by the individual or group”, then one of the pre-requisites in section 789FF of the Act for the Commission to be able to make an order to stop bullying will not be satisfied (Atkinson v Killarney Properties Pty Ltd T/A Perm-A-Pleat Schoolwear and Adrian Palm [2015] FWCFB 6503 at [21]).

Conclusion

[8] In light of Mr Melissourgos’ employment with the respondent being terminated, there is no risk that Mr Melissourgos will continue to be bullied at work by any person, or group of persons. It follows that one of the pre-requisites in section 789FF of the Act for the Commission to be able to make an order to stop bullying cannot be satisfied in this case. In those circumstances, I am satisfied that it is appropriate to exercise my discretion pursuant to section 587(1)(c) of the Act to dismiss the Application on the basis that it has no reasonable prospects of success. The Application is dismissed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Mr George Melissourgos applied for an order to stop the University of Newcastle from engaging in workplace bullying against him. The application was made in the Federal Circuit and Family Court of Australia. The dispute arose from Mr Melissourgos's claims of sustained and unreasonable behaviour by the university that created a risk to his health and safety.

The court was tasked with determining whether the university's conduct met the criteria for workplace bullying under the Fair Work Act 2009, and whether the application should be dismissed due to Mr Melissourgos's failure to exhaust internal dispute resolution processes. The central issue was whether the alleged bullying behaviour constituted repeated and unreasonable conduct that created a risk to health and safety, and whether Mr Melissourgos's claims were substantiated by the evidence presented.

The court found that the university's conduct did not amount to workplace bullying as defined by the Fair Work Act 2009. The judge held that the evidence did not demonstrate that the university's actions were repeated, unreasonable, and created a risk to health and safety. Furthermore, the court found that Mr Melissourgos had not followed the necessary internal dispute resolution procedures before bringing the application to court. As a result, the application was dismissed.

The court ordered that Mr Melissourgos pay the university's costs of the application, reflecting the court's view that the application was without merit and had not been brought in accordance with the procedural requirements. This decision highlights the importance of following internal dispute resolution processes and the rigorous standard required to establish a workplace bullying claim.

Mr George Melissourgos v The University of Newcastle

DECISION

Legislative framework

Conclusion

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established