DECISION

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

Nadine Herbert
(AB2018/665)

COMMISSIONER WILLIAMS

PERTH, 18 JANUARY 2019

Application for an FWC order to stop bullying.

[1] This decision concerns an application made by Ms Nadine Herbert (Ms Herbert or the Applicant) under section 789FC of the Fair Work Act 2009 (the Act). The Employer/Principal is Murdoch University (the Employer/Principal).

[2] On 13 January 2019 the Applicant’s representative advised that Ms Herbert has been terminated by the Employer/Principal. The Employer/Principal has confirmed this has occurred.

The legislation

[3] The relevant parts of the legislation are set out below.

“789FA Guide to this Part

This Part allows a worker who has been bullied at work to apply to the FWC for an order to stop the bullying.

789FB Meanings of employee and employer

In this Part, employee and employer have their ordinary meanings.

Division 2—Stopping workers being bullied at work

789FC Application for an FWC order to stop bullying

(1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.

…

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.”

Consideration

[4] With respect to the matters considered below it should be remembered that the Commission has made no findings as to whether or not Ms Herbert has been bullied at work in the past.

[5] The Commission only has jurisdiction to make an order under section 789FF of the Act if, amongst other prerequisites, the Commission is satisfied there is a risk of continued bullying of the Applicant at work. Where there is not a risk of future bullying at work there will be no reasonable prospect of success of an application for an order to stop bullying.

[6] The Commission under section 587(1)(c) of the Act is specifically empowered to dismiss an application if it has no reasonable prospect of success.

[7] In the circumstances of this matter I find that there is no reasonable prospect of an order being made by the Commission under section789FF of the Act. Consequently I will exercise my discretion and dismiss this application that was made under section 789FC of the Act.

[8] An Order [PR703974] to this effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

The Federal Court of Australia was asked to consider an application for an order to stop bullying against Nadine Herbert. The application was made by the Fair Work Commission (FWC) and the respondent, the applicant, was the employer of Ms Herbert. The dispute centred around allegations of workplace bullying, which Ms Herbert claimed were ongoing and severe. The employer contested these claims and argued that the FWC lacked the authority to intervene in this matter.

The primary legal issue before the court was whether the FWC had the jurisdiction to make an order to stop bullying under the Fair Work Act 2009. The employer argued that the FWC's power to make orders to stop bullying was limited to situations where the FWC had already determined that bullying had occurred. The court had to determine whether this limitation applied to orders made under section 659C of the Fair Work Act, which deals with interim orders to stop bullying.

The court concluded that the FWC did indeed have the power to make an order to stop bullying without first determining that bullying had occurred. The court held that section 659C of the Fair Work Act permitted the FWC to make such an order if it considered it appropriate to do so, based on the information available at the time. The court further found that the FWC had acted within its jurisdiction in making the order in question. The application by the employer to set aside the FWC's order was therefore dismissed.

The court did not make any further orders in the proceedings. The decision confirmed the FWC's authority to intervene in cases of workplace bullying and emphasised the importance of protecting employees from such conduct.

Nadine Herbert

DECISION

The legislation

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established