Mr Peter John Edwin House
[2025] FWC 1507
•2 JUNE 2025
| [2025] FWC 1507 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Mr Peter John Edwin House
(AB2025/79)
| COMMISSIONER SCHNEIDER | PERTH, 2 JUNE 2025 |
Application for an FWC order to stop bullying
On 4 February 2025, Mr Peter John Edwin House (Mr House / the Applicant) lodged an application with the Fair Work Commission (the Commission), pursuant to section 789FC of the Fair Work Act2009 (Cth) (the Act).
The Applicant alleges that he has been bullied at work during whilst being a volunteer ambulance driver with St John Ambulance Western Australia Limited (St John / the Respondent) by four individuals (the Persons Named).
This decision concerns a jurisdictional issue only. Specifically, that the Commission may lack jurisdiction to issue any orders under the Act. This concern arises from the fact that it appears the Applicant was dismissed from his volunteer position and, as a result, the Applicant is no longer a worker and there is no ongoing risk of the alleged bullying.
Background
Mr House lodged this application with the Commission in relation to allegations of bulling by four other team members of St John’s. The matter was listed for a conference on 25 February 2025 and for a second conference on 19 March 2025.
At the conference on 19 March 2025, St John confirmed that Mr House’s volunteer employment with St John’s had been terminated effective immediately on 10 March 2025. In further written submissions to the Commission, St John confirmed that due to the severity of Mr House’s conduct during his volunteer engagement that demonstrated a clear detachment from St John WA’s values and expectations there was no possibility that Mr House would be considered for future volunteering. St John submitted that as Mr House was a volunteer not an employee there was no foreseeable circumstance (such as reinstatement from an unfair dismissal claim) whereby Mr House may be a worker with St John in the future.
St John confirmed that as there was no foreseeable circumstance whereby Mr House would be engaged in the future by St John and Mr House was no longer at risk of future bullying by the Persons Named, that the Commission should exercise its discretion to dismiss the application as per section 587 (1)(c).
St John highlighted the Full Bench decision in Greenan [1] and the following comments in support of this submission “while the Commission has a wide discretion in terms of matters that may be included in a stop bullying order, the order must be directed at preventing identified bullying conduct from continuing. This is a limitation on an order, in the sense that the only remedy the Commission can impose on parties to an under s789FC must be directed at maintaining a working relationship between them by removing future risk of bullying. When the relevant working relationship has ceased because the employment of the applicant for a stop bullying order has been terminated, an order will have no effect on the applicant unless and until the application is reinstated or otherwise returns to the workplace”.
The Applicant made various submissions as to why the Commission should not exercise its discretion under section 587 (1)(c) of the Act and dismiss the application for having no reasonable prospects of success.
The Applicant submitted that there is nothing that prevents St John from reinstating the Applicant’s volunteer employment than their own unfair and unreasonable acts”, therefore the Applicant could one day return to be a volunteer with the Respondent.
The Applicant made various submissions about the bullying allegations and the process followed by St John which ultimately resulted in St John terminating him as a volunteer.
The Applicant provided information in relation to what they submitted was a bullying culture at the Respondent’s workplace.
The Applicant submitted that due to his volunteer status, there are limited avenues available for the Applicant to address his concerns in relation to the allegations made against the Persons Named and the Respondent and therefore the Commission should allow the Applicant his day in court to ventilate these issues and that this is consistent with the overall objects of the Act.
The Applicant further submitted that the Act has failed volunteers such as the Applicant by allowing for a situation whereby a volunteer such as the Applicant does not have the ability to have the merit of his allegations heard if his employment comes to an end.
Legislation
The Act’s provisions in relation to anti-bullying are contained within Part 6-4B—Workers bullied at work, with section 789FD of the Act setting out the circumstances of when a worker is bullied at work:
“789FD When is a worker bullied 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.
(3) If a person conducts a business or undertaking (within the meaning 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.”
Section 789FF sets out the powers of the Commission to make orders in the event that it is satisfied there is bullying at work:
“789FF 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.
(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.”
Section 587 of the Act provides a discretion to dismiss an application if, inter alia, the application has no reasonable prospect of success.
Section 587 of the Act, in its entirety, 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.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
Consideration
In Bibawi v Stepping Stone Clubhouse Inc t/a Stepping Stone & Others,[2] the Full Bench, when dealing with a dispute as to whether an Applicant was a worker in an application made pursuant to section 789FC of the Act, stated:
“[17] Section 587(1)(a) of the FW Act empowers the Commission to dismiss an application where it has not been made in accordance with this Act, and s 587(1)(c) similarly empowers dismissal where an application has no reasonable prospects of success. This power may be exercised summarily - that is, an application may be dismissed pursuant to s 587(1) prior to a full hearing being conducted. Full Bench decisions such as Townsley v State of Victoria (Department of Education & Early Childhood Development) and Toma v Workforce Variable Pty Ltd have emphasised that the power to dismiss applications summarily should be exercised cautiously and sparingly, consistent with the principle stated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW):
“… the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion … the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action … is clearly demonstrated.” (references omitted)
The relevant remedy in respect of an application for an order to stop bullying is an order which the Commission considers appropriate “to prevent the worker from being bullied at work by the individual or group”.[3]
The discretion to make an order to stop bullying can only be exercised if the Commission is satisfied that:
·the worker has been bullied at work by an individual or a group of individuals; and
·there is a risk that the worker will continue to be bullied at work by the individual or group of individuals.[4]
Therefore, before issuing an order under section 789FF of the Act, the Commission must be satisfied there is a risk that the worker will continue to be bullied at work.
If the Commission is not satisfied there is a risk that the worker will continue to be bullied at work by the individual or group of individuals, the application must fail.
Accordingly, even if I was satisfied the Applicant has been bullied at work by an individual or group of individuals, I must also be satisfied there is a risk that he will continue to be bullied at work by the individual or group of individuals and that it is appropriate to make an order to prevent him from being bullied at work.
Absent the existence of a risk of continued bullying at work by the individual or group of individuals, there is an absence of power to make an order.[5]
The Applicant submits broadly that the Commission should not exercise its discretion under section 587 (1)(c) to dismiss the application, for the following reasons:
· The Applicant is a volunteer worker and not an employee, therefore he cannot seek to challenge the termination of his employment via an unfair dismissal application.
· If St John have a change of heart the Applicant could one day return to St John as a volunteer.
· The Act does not provide Mr House with an avenue to air his grievances with the Respondent.
I accept that the volunteer status of Mr House is a difference compared to other cases cited by the parties in submissions. I accept that Mr House is upset by the decision of St John to terminate his volunteer engagement and that he may be further upset by this decision, however after considering the submissions, I am not persuaded that it is an inappropriate use of my discretion under section 587 (1)(c) to dismiss the application on the basis that it has no reasonable prospects of success.
Section 789FF is a specific piece of legislation which allows for the Commission to make orders to assist a worker who is currently at risk of being bullied in the workplace by an individual or group of individuals, unfortunately for Mr House he is no longer a worker with St John therefore there is no real risk that exists. I do not consider that it is an appropriate use of Commission resources or the resources of the Respondent to continue to hear an application in which no stop bullying order could be made.
St John have made it perfectly clear that there are no plans to ever engage the volunteer services of Mr House again in the future, if this is to change in the future and the Applicant feels he is bullied in the future then he is free to make a new application with the Commission, however section 789FF is not the appropriate forum to determine the merit of the application when it is evident before the Commission that Mr House is no longer a worker and not at any risk of being bullied in the workplace.
Conclusion
On the material before me, I consider the pre-requisites for the making of any orders pursuant to section 789FF(1) of the Act cannot presently be met because there is no risk that the Applicant will continue to be bullied at work.
I am persuaded that the application the Applicant has made has no reasonable prospects of success and I am satisfied it is appropriate in the circumstances of this case to exercise my discretion pursuant to section 587(1)(c) of the Act to dismiss the Applicant’s anti-bullying application. An order to that effect has been issued.[6]
COMMISSIONER
[1] Carole Greenan v David Vilenskym Tim Lethbridge, Bernard Mackin, Croftbridge Pty Ltd T/A Croftbridge, Worklace
Consulting Australia Pty Ltd T/A WCA Solutions BBV Legal Pty Ltd T/A Bowen Buchbinder Vilensky [2025} FWCFB 61.
[2] [2019] FWCFB 1314.
[3] Fair Work Act 2009 (Cth) s.789FF.
[4] Fair Work Act 2009 (Cth) ss.789FF(1)(b)(i) - (ii).
[5] [2016] FWC 716 at [15].
[6] [PR787851].
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