DECISION

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

Mr Richard Bassanese
(AB2014/1444)

COMMISSIONER HAMPTON

ADELAIDE, 5 JUNE 2015

Application for an FWC order to stop bullying - applicant worker dismissed prior to lodging anti-bullying application - unfair dismissal application lodged - found unfair but not reinstated - whether applicant must be a worker when anti-bullying application made - whether absence of future risk means that application should be dismissed - no future risk and no reasonable basis to suggest future risk of bullying of applicant at the relevant workplace - no reasonable prospects of an order being made given the requirements of the Act - no reasonable prospects of success - nature of potential referral to WHS regulator considered - anti-bullying application dismissed.

1. Background and case outline

[1] On 1 October 2014, Mr Bassanese (the applicant) made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the Act). I will for convenience describe this as the AB application. The AB application alleges bullying conduct by his former Manager and others in a workplace which is conducted by his ex-employer, HPS Transport Pty Ltd (HPS Transport).

[2] The AB application contained a collection of documents to support the applicant’s case. One of the documents was a termination letter from the employer dated 29 September 2014 and this advised that Mr Bassanese’s position was made redundant as of that date.

[3] At the same time as lodging the AB application, Mr Bassanese also lodged an unfair dismissal application under s.394 of the Act. The AB application was, with the consent of the parties, held in abeyance until the unfair dismissal matter was determined.

[4] The unfair dismissal matter was assigned to another Member of the Commission and on 20 February 2015, Deputy President Bartel found that Mr Bassanese’s dismissal was unfair within the meaning of the Act. 1 In so finding, the Deputy President concluded that Mr Bassanese’s position no longer existed but that it was not a “genuine redundancy” as defined by the Act due to the absence of the required consultation. The Deputy President also determined that Mr Bassanese’s injury may have been a factor in the decision to make him redundant at that time2 and that “re-employment” was not an appropriate remedy.3 In a later decision, and having heard further from the parties, the Deputy President awarded compensation to Mr Bassanese on 18 March 2015.4

[5] Following the determination of the unfair dismissal matter, the AB application was listed for further preliminary proceedings by telephone on 26 March 2015. All parties participated in the conference. The potential consequences of the applicant’s dismissal and the absence of an order reinstating the employment relationship were canvassed with the parties in general terms.
[6] HPS Transport requested that the application be dismissed given that Mr Bassanese is no longer in the workplace.

[7] Mr Bassanese confirmed that he wished to proceed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mr Richard Bassanese

Details

AGLC: Mr Richard Bassanese [2015] FWC 3515
Case: [2015] FWC 3515
Decision Date: 5 JUNE 2015

CaseChat Overview and Summary

The applicant, Mr Richard Bassanese, applied for an order under the Fair Work Act 2009 (Cth) to prevent alleged bullying at work. The application was made after his dismissal, and he also lodged an unfair dismissal claim, which was found to be unfair but did not result in reinstatement. The primary legal issues were whether the applicant had to be an employee at the time of making the anti-bullying application, and whether the absence of a future risk of bullying meant the application should be dismissed. The court considered these issues in light of the statutory provisions and the particular circumstances of the case.

The court determined that Mr Bassanese was no longer an employee when he made the anti-bullying application, but this was not the sole factor in deciding the application's merits. The court also assessed whether there was a future risk of bullying, finding none, and no reasonable basis to suggest such a risk. The court concluded that there were no reasonable prospects of an order being made, as required by the Act, given these findings. The nature of a potential referral to the Work Health and Safety regulator was also examined, but this did not alter the outcome. The anti-bullying application was dismissed on the basis that there were no reasonable prospects of success.

The court found that the anti-bullying application was without reasonable prospects of success due to the applicant's dismissal and the absence of a future risk of bullying. Consequently, the application was dismissed in its entirety. The court did not consider it necessary to refer the matter to the Work Health and Safety regulator, given the dismissal of the application.

Orders