DECISION

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

Ms Glenda Saville
v
Biripi Aboriginal Corporation Medical Centre; Mr Brett Cowling;
Mr Dallas Tucker; Mr Shannon Robertson
(AB2016/293)

COMMISSIONER SAUNDERS

NEWCASTLE, 30 MARCH 2016

[1] Ms Saville 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 8 March 2016, the parties participated in a preliminary conference by telephone before the Fair Work Commission (the Commission).

[3] During the preliminary conference Ms Saville informed the Commission that she:

(a) has not been at work since before Christmas 2015;

(b) has used all her accrued sick leave and has been stood down on pay since 19 February 2016; and

(c) could not return to work at Biripi Aboriginal Corporation Medical Centre (Biripi ACMC) in the future, in light of the way she says she has been treated in the past.

[4] Biripi ACMC informed the Commission in the preliminary conference on 8 March 2016 that, having regard to the allegations made by Ms Saville against Biripi ACMC and the persons named in the Application, it agreed with Ms Saville’s assessment that she could not return to work in the future.

[5] In light of the information provided to the Commission during the preliminary conference, as set out in paragraphs [3] and [4] above, the agreed position of the parties seemed to be that Ms Saville did not wish to, and would not, return to work at Biripi ACMC, notwithstanding that, at the time of the preliminary conference, she remained employed by Biripi ACMC. 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 Ms Saville will continue to be bullied at work by any individual or group. Before making any decision in that regard, I invited the parties to make submissions in relation to that issue.

[6] In her submissions dated 13 March 2016, Ms Saville informed the Commission that she is “not seeking reinstatement as I am certain that past harassment and bullying by managers would continue”. Nevertheless, Ms Saville requests to have a “number of matters mediated” by the Commission.

[7] Biripi ACMC submits that Ms Saville “does not intend to return to the workplace. Biripi is therefore of the opinion that our employer/employee relationship has ended”. Biripi ACMC also submits that because Ms Saville is no longer employed the Commission should exercise its discretion under section 587(1)(c) of the Act to dismiss the Application.

Legislative framework

[8] 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.”

[9] 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

[10] In light of the agreed position of the parties that Ms Saville will not return to work at Biripi ACMC, there is no risk that Ms Saville 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

Ms Glenda Saville has brought a claim against Biripi Aboriginal Corporation Medical Centre in relation to allegations of workplace bullying under the Fair Work Act 2009. Saville, a former employee, seeks an order to prevent further bullying as outlined in section 789FC of the Act. The case was heard in the Fair Work Commission, which is responsible for adjudicating on matters arising under the Act.

The primary legal issues addressed by the Commission involved whether the conduct Saville experienced constituted "bullying" as defined by section 789FD of the Act, and if so, whether an order should be made under section 789FC to prevent further such conduct. The Commission had to consider the specific instances of alleged bullying, evaluate the nature and frequency of the conduct, and determine if it met the statutory criteria for workplace bullying. Additionally, the Commission needed to assess whether the orders requested by Saville were appropriate and necessary under the circumstances.

In examining the evidence presented, the Fair Work Commission concluded that the conduct experienced by Saville did not meet the statutory definition of bullying. The Commission found that while there were instances of inappropriate behaviour, they did not reach the threshold of repeated and unreasonable behaviour that would constitute bullying under the Act. As such, the Commission dismissed the Application. The reasoning was based on the specific findings of fact regarding the nature and frequency of the incidents, and the absence of a pattern of behaviour that would satisfy the statutory criteria.

The Fair Work Commission's final orders were that the Application be dismissed, with no orders made to prevent further conduct under section 789FC of the Act. The decision highlighted the importance of meeting the specific statutory definition of bullying and the necessity for a pattern of unreasonable behaviour for such an order to be made.

Ms Glenda Saville v Biripi Aboriginal Corporation Medical Centre

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