Mr George Melissourgos v The University of Newcastle

[2016] FWC 8843

[2016] FWC 8843

FAIR WORK COMMISSION

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

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