Ms Norah McMenamin

[2016] FWC 7489

[2016] FWC 7489

FAIR WORK COMMISSION

DECISION

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

Ms Norah McMenamin
(AB2016/501)

COMMISSIONER CLOGHAN PERTH, 17 OCTOBER 2016

Application for an FWC order to stop bullying.

[1] On 18 July 2016, Ms Norah McMenamin (Ms McMenamin or Applicant) made application to the Fair Work Commission (Commission) for an order to stop bullying.

[2] The application for an order to stop bullying is made in accordance with s.789FC(1) of the Fair Work Act 2009 (FW Act).

[3] The application is for an order against an employee of Southern Cross Care (WA) Inc (Employer).

[4] Section 789FD of the FW Act provides when a worker is bullied at work as follows:

“(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.”

[5] Section 789FF of the FW Act provides that the Commission may make orders as follows:

“(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)  …”

[6] On 10 October 2016, the Employer informed the Commission that Ms McMenamin’s employment had been terminated with effect from that day. The Commission was provided with a copy of Ms McMenamin’s letter of termination of employment.

[7] On 12 October 2016, my Associate emailed Ms McMenamin. The relevant parts of the email are as follows:

“The Commissioner has received a copy of correspondence from Southern Cross Care (SCC) to you dated 10 October 2016.

The correspondence concludes with SCC’s decision to terminate your employment from 10 October 2016.

For the Commissioner to make an order pursuant to s.789FF of the Fair Work Act 2009, it is necessary that he be:

• satisfied that you have been bullied at work by an individual or a group of individuals; and



• that there is a risk that you will continue to be bullied at work by the individual or group of individuals.

Notwithstanding that the Commissioner has to be satisfied that you have been bullied at work, he cannot be satisfied that the alleged bullying will continue in view of the Employer’s decision to terminate your employment effective from 10 October 2016.

In the circumstances, the Commissioner is of the view that there is no utility in proceeding to a hearing of your application.

However, before closing the file, the Commissioner is seeking your comments by no later than 4:00 pm Friday 14 October 2016.”

[8] On 14 October 2016, the Applicant responded relevantly as follows:

“I would appreciate if the bullying claim can remain open and request that the Commissioner's decision to dismiss my bullying claim be stayed, pending the outcome of the unfair dismissal claim as there may be a chance that I may overcome the jurisdictional hurdle of not being an employee.”

[9] Pursuant to s.587(3)(a) of the FW Act, I have determined to dismiss the application and in doing so have taken into account the following:

• the Applicant commenced employment with the Employer on 12 January 2015;



• the alleged incidents of bullying occurred on:

- 12 and 16 January 2015;
- 23 and 27 February 2015; and
- 5 March 2015.

• on 5 March 2015, the Applicant left the workplace and has not returned;



• prior to the Applicant’s termination of employment, she had not been at work for approximately 18 months; and



• the application of alleged bullying behaviour was not made until 18 July 2016.

[10] Section 789FE of the FW Act requires the Commission to deal with alleged bullying applications promptly.

[11] Taking into account the matters in paragraphs [9] and [10] above, I am not prepared to “stay” the application.

[12] Even if the Commission was satisfied that Ms McMenamin was bullied at work, in accordance with s.789FF (b) (ii) there has been no risk that this would have continued since 5 March 2015. Furthermore, in view of the Applicant’s dismissal on 10 October 2016, there is no risk that Ms McMenamin will continue to be bullied at work.

[13] For the above reasons, this application is dismissed pursuant to s.587(3)(a) of the FW Act. An Order to this effect is attached to this Decision.

COMMISSIONER

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