Mrs Chin Lien Chen Jao v Of Resource Recovery Pty Ltd, Mr Kiernan Cook
[2023] FWC 2498
•5 OCTOBER 2023
| [2023] FWC 2498 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.527F - Application for an order to stop and deal with a sexual harassment dispute
Mrs Chin Lien Chen Jao
v
OF Resource Recovery Pty Ltd, Mr Kiernan Cook
(SH2023/19)
| COMMISSIONER LEE | MELBOURNE, 5 OCTOBER 2023 |
Application for a stop sexual harassment order and for the FWC to otherwise deal with the dispute. Applicant no longer employed. Application for stop sexual harassment order has no reasonable prospect of success; no risk of continued sexual harassment at work; application for stop sexual harassment order under s. 527J dismissed.
Mrs Chin Lien Chen Jao (Applicant) made an application under s.527F(1)(a) and s.527F(1)(b) of the Fair Work Act 2009 (Act) for the Fair Work Commission to deal with a sexual harassment dispute. The application is made against OF Resource Recovery Pty Ltd (OF Resource), as well as a named individual, Mr Kiernan Cook, who is a Warehouse Manager at OF Resource.
In the Form F75 at question 1, the Applicant applied for the Commission to deal with a sexual harassment dispute by:
· making a stop sexual harassment order and
· by otherwise dealing with the dispute.
The matter was initially listed for Conference, on Monday 4 September 2023. There was an endeavour to resolve the matters in dispute, however, the matters did not resolve. To further deal with the matter, the matter was listed for Mention Hearing, on Thursday, 7 September 2023.
Dealing with a sexual harassment dispute by otherwise dealing with the dispute
To the extent that the application seeks for the Commission to deal with a sexual harassment dispute by otherwise dealing with the dispute (other than by making a stop sexual harassment order), I was satisfied having conducted a conference between the parties on 4 September and further hearing from the parties at the Mention Hearing on Thursday, 7 September 2023 that all reasonable attempts to resolve the dispute (other than by arbitration) had been or were likely to be unsuccessful. I therefore issued a 527R(3)(a) Certificate to that effect.
Making a stop sexual harassment order
In terms of the aspect of the application to deal with a sexual harassment dispute by making a stop sexual harassment order, the Respondent raised an objection in their Form F77 being that the aggrieved person was not “a worker in the business or undertaking when the alleged sexual harassment occurred” and that “there is no future risk of the alleged sexual harassment of the aggrieved person”.
At question 6 of the Form F77, OF Resource indicates that on 31 July 2023 the aggrieved person sent an email to the HR Manager stating “I have no choice but to tender my resignation with the company…”. At the Mention Hearing, the Applicant confirmed that she is no longer employed at OF Resources.
Based on the materials that had been filed, and in particular, the Applicant’s confirmation that she is no longer employed at OF Resource, I indicated at the Mention Hearing that my preliminary view was that the application for a stop sexual harassment order had no reasonable prospects of success because there is no future risk the aggrieved person would continue to be sexually harassed. I proposed to determine the matter on the papers. Neither the Applicant nor Respondent objected to the matter being determined on the papers.
I subsequently directed the parties to file and exchange written submissions to deal with the objection as follows:
The Respondent is to file with the Fair Work Commission and serve on the Applicant an outline of submissions as to why the application should be dismissed by no later than 5.00pm, Thursday, 14 September 2023.
The Applicant is to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions as to why the application should not be dismissed by no later than 5.00pm, Thursday, 21 September 2023.
[7] I will determine the objection on the papers.
The Respondent submitted that since the alleged sexual harassment on 17 July 2023, the Applicant did not return to the physical workplace. Between 27 July 2023 to 2 August 2023 the Applicant was on leave. On 31 July 2023 the Applicant tendered her resignation and worked from home until 14 August 2023.[1]
It is apparent from the evidence that as at 14 August 2023 the employment relationship between the Applicant and OF Resource came to an end.
Relevant legislation
Section 587 of the Act provides:
“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, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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.”
Section 527F(1) of the Act provides:
“Application for the FWC to deal with a sexual harassment dispute
(1) If a person (the aggrieved person) alleges they have been sexually harassed in contravention of Division 2 by one or more other persons (a respondent), a person referred to in subsection (2) may apply for the FWC to do either or both of the following to deal with the dispute:
(a)make an order (a stop sexual harassment order) under section 527J;
(b)otherwise deal with the dispute.
Section 527J(1) of the Act provides:
“Stop sexual harassment orders
(1) If:
(a)an application made under section 527F includes an application for a stop sexual harassment order; and
(b)the FWC is satisfied that:
(i)the aggrieved person has been sexually harassed in contravention of Division 2 by one or more persons; and
(ii)there is a risk that the aggrieved person will continue to be sexually harassed in contravention of Division 2 by the person or persons;
then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the aggrieved person from being sexually harassed in contravention of Division 2 by the person or persons.”
Risk that the aggrieved person will continue to be sexually harassed
The relevant question is whether, taking the Applicants case at its highest and the facts as presently known, does the application for a stop sexual harassment order have a reasonable prospect of success? Put another way, is there some reasonable prospect that the Commission would make an order under s.527J?
To make an order in this jurisdiction, the Commission must be satisfied that both limbs of s.527J(1)(b)(i) and s.527J(1)(b)(ii) of the Act are satisfied. That is, the aggrieved person has been sexually harassed and that that there is a risk that the aggrieved person will continue to be sexually harassed. (emphasis added)
The question as to whether the Commission is satisfied that the aggrieved person has been sexually harassed has not yet been determined. For the purposes of determining whether to dismiss the application for a stop sexual harassment order, I am prepared to assume without deciding that the aggrieved person has been sexually harassed by the Respondent. However, even if this were so, an order can only be made if the Commission is satisfied there is a risk of continuation of sexual harassment as contemplated in s.527(J)(b)(ii).
In Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank and Another[2] (Shaw v ANZ), Deputy President Gostencnik delt with an application for an order to stop bullying and the capacity of the Commission to make an order in such circumstances where the Applicant was dismissed. Although the current application is with regards to making a stop sexual harassment order where the Applicant resigned, similar principles apply in that stop bullying orders can only be made if there is a risk of continued bullying. Deputy President Gostencnik found as follows:
“[15] As s. 789FF(b) makes clear, I must be satisfied not only that Mr Shaw has been bullied at work by an individual or group of individuals but also that there is a risk that he will continue to be bullied at work by that individual or group of individuals. Therein lays the difficulty for Mr Shaw. It seems to me that I have no power to make an order to stop bullying unless I can be satisfied relevantly that there is a risk that at work Mr Shaw will continue to be bullied by the individual or group of individuals identified in his application.
[16] It is clear that Mr Shaw is no longer employed by ANZ. The employment relationship has ended. That Mr Shaw is taking steps to seek a remedy in relation to his dismissal and that that may result in reinstatement at some point in the future does not have a bearing on the question that I must answer and is speculative and uncertain. It seems to me clear that there cannot be a risk that Mr Shaw will continue to be bullied at work by an individual or group of individuals identified in his application because Mr Shaw is no longer employed by ANZ and therefore is no longer at work.
[17] It necessarily follows that I do not have power to make an order to stop bullying and, as a consequence, I am satisfied that Mr Shaw’s application has no reasonable prospect of success.”[3]
Similar circumstances apply here. In this matter, the Applicant is no longer employed and will no longer have any contact with the Respondent, In the circumstances, there is no reasonable prospect that the Commission could be satisfied there is a risk to the Applicant as contemplated in s.527(J)(1)(b)(ii).
Mrs Chen Jao made submissions that it “is offensive to the applicant and to consider that Fair Work Commission would have viewed the position differently should the applicant have remained employed suggests that the applicants well-being and mental state was not considered priority in such matter.”[4] And that the “mere fact that the applicant is no longer employed by the employer should not provide grounds for the matter to be dismissed…”[5]
Mrs Chen Jao may be offended that that the application may be dismissed due to her employment relationship ending. However, an element or a precondition to the making of a stop sexual harassment order is that the Commission must be satisfied there is a risk that the aggrieved person will continue to be sexually harassed. A stop sexual harassment order is just that, an order to stop. There is no power to make a stop sexual harassment order in circumstances where there is no longer a risk of it continuing.
The Applicant is no longer employed by the Respondent. In the circumstances, I am not satisfied that there is a risk that the aggrieved person will continue to be sexually harassed in contravention of Division 2 by the person or persons. The Commission is unable to exercise any power to make an order unless it is satisfied of both limbs being ss.527J(1)(b)(i) and 527J(1)(b)(ii) of the Act are satisfied. As a consequence, I am satisfied that the Applicants application for a stop sexual harassment order has no reasonable prospects of success.
Dismissing an application under s.587 of the Act
Section 587(1)(c) provides that the FWC may dismiss an application if the application has no reasonable prospects of success. As indicated above, I am not satisfied that there is a continued risk that Mrs Chen Jao will be sexually harassed. As such, the Application has no reasonable prospects of success.
Section 587(2) provides that despite s.587(1)(b) and (c), the FWC must not dismiss an application under s.527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application… has no reasonable prospects of success.
The Application by Mrs Chen Jao did not initially consist solely of an application for a stop sexual harassment order. The Applicant also applied for the Commission to deal with a sexual harassment dispute “by otherwise dealing with the dispute”. As referred to in [4] above, with regard to otherwise dealing with the dispute, I issued a s.527R(3)(a) Certificate, and that aspect of the application has been dealt with.
It is only the application for a stop sexual harassment order that remains before me. As such, the FWC can dismiss an application under s.527F as it now consists solely of an application for a stop sexual harassment order.
Conclusion
The employment relationship between Mrs Chen Jao and OF Resource ended on 14 August 2023. In those circumstances I am satisfied that Mrs Chen Jao’s application for a stop sexual harassment order has no reasonable prospect of success as there is no risk that the aggrieved person will continue to be sexually harassed. As I am not satisfied that there is any such future risk, even if I had concluded that sexual harassment had occurred within the statutory meaning, there is no basis under the Act to issue any orders arising from this particular application.
As both limbs of s.527J(1)(b) have not been met, I am satisfied that the application has no reasonable prospects of success. I order that Mrs Chen Jao’s application for an order to stop sexual harassment be dismissed.
An order[6] to this effect will be issued with this Decision.
COMMISSIONER
[1] Respondents outline of submissions at [6], [7] and [8].
[2] [2014] FWC 3408.
[3] Ibid.
[4] Submissions of Mrs Chin Lien Chen Jao at [20].
[5] Ibid at [22].
[6] PR766794.
Printed by authority of the Commonwealth Government Printer
Hearing details:
Determined on the papers.
Final written submissions:
Submissions received by the Respondent on 12 September 2023.
Submissions received by the Applicant on 21 September 2023.
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