Ms Taylor Johnston

[2019] FWC 1300

[2019] FWC 1300

FAIR WORK COMMISSION

DECISION

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

Ms Taylor Johnston
(AB2018/798)

DEPUTY PRESIDENT BINET PERTH, 1 MARCH 2019

Application for an FWC order to stop bullying - whether future risk of bullying conduct – whether reasonable prospects of success – no future risk – application dismissed as a matter of discretion.

[1] On 27 December 2018, Ms Taylor Johnston (Ms Johnston) made an application (Application) for an order to stop bullying under s.789FC of the Fair Work Act 2009 (FW Act).

[2] Ms Johnston at the time was employed by Southern Cross Care (WA) Inc (Southern Cross) as the Scheduler for the Perth Metropolitan area. The Application alleges that several employees of Southern Cross engaged in bullying behaviour towards her (Named Persons).

[3] Having received a response to the Application from Southern Cross and the Named Persons, the Application was subsequently listed for a conciliation conference on 23 January 2019. The parties agreed at the conference that the Application be adjourned for three weeks so that Ms Johnson could decide whether she wished to have the Application listed for another conference or a hearing or whether she wished to discontinue the Application.

[4] On Monday, 11 February 2019 Southern Cross emailed my Chambers advising that Ms Johnston had resigned from her position over the weekend.

[5] Later the same day an email was sent to Ms Johnston from my Chambers querying if she intended to pursue her application in light of her resignation from her position. The email noted that the power of the FWC to grant an order to stop bullying is limited to preventing a worker from being bullied at work and the focus is on resolving the matter and enabling working relationship to resume. The email drew Ms Johnson’s attention to the FWC’s Anti-bullying Benchbook which states that:

“An order in relation to workplace bullying may only be made by the Fair Work Commission where it finds that there is a risk of alleged bullying continuing in the workplace. In most circumstances, this will mean that an order cannot be made where the worker is no longer in the relationship where the bullying is alleged to have occurred.”

The email directed Ms Johnston to file submissions confirming the fact and date of her resignation and explaining how the alleged bullying conduct could occur after this date. A link to resources on the FWC website in relation to the circumstances in which the FWC can make stop bullying orders was also included in the correspondence.

[6] No response was received from Ms Johnston so a further email was sent to her on 25 February 2019 informing her that in the absence of a response from her I was considering dismissing the Application pursuant to section 587 of the FW Act. The email invited Ms Johnston to make submissions providing reasons why her Application should not be dismissed and evidence or other documentary material supporting those reasons by 4pm on Wednesday 27 February 2019.

[7] No response was received from Ms Johnston within the time frame set out in the email or as at the date of this decision.

[8] Section 587 of the FW Act 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.”

[9] Section 789FF of the FW Act provides as follows:

“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.”

[10] The operation of section 789FF of the FW Act in circumstances where an applicant is no longer engaged in the workplace has been considered in a number of decisions of the Commission. For example in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank and Another (Shaw v ANZ) [2014] FWC 3408Gostencnik DP 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.”

[11] Similarly in Obatoki v Mallee Track Health & Community Services[2015] FWCFB 8791where the Full Bench was dealing with an appeal involving an applicant who was no longer in the relevant employment relationship the Full Bench concluded as follows:

“[16] We consider that the Deputy President correctly held that there were no reasonable prospects that the application could succeed. The Commission could not be satisfied that the second of the two jurisdictional prerequisites of s.789FF(1) could be met. There was no evidence before the Commission indicating that there would be a risk that the Appellant would continue to be bullied at work once he ceased to be engaged by Mallee Track and ceased working at its premises or providing services for it. It necessarily follows that no order pursuant to s.789FF(1) could be made and the application had no reasonable prospects of success.”

[12] This approach, and the discretion that exists for the FWC to dismiss a stop-bullying application where appropriate, was also subsequently confirmed by another Full Bench in Atkinson v Killarney Properties Pty Ltd [2015] FWCFB 6503.

[13] Ms Johnston has not provided any information which would indicate that there is a prospect of her returning to the workplace or any other basis where a future risk of bullying within the meaning of s.789FF(1)(b)(ii) of the FW Act could arise.

[14] In considering all of the circumstances of this matter based upon the materials that are before the FWC, I am satisfied that the Application has no reasonable prospects of success. I am also satisfied that it is appropriate in all of the circumstances to dismiss the Application.

[15] Accordingly, the Application is dismissed under s.587(1)(c) of the Act.

DEPUTY PRESIDENT

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