Nelder

[2024] FWC 3321

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Nelder

(AB2024/734)

COMMISSIONER MCKINNON

SYDNEY, 29 NOVEMBER 2024

Application for an order to stop bullying – no longer at work – Deed of Release – complete answer to application – no reasonable prospects of success

On 26 September 2024, Ms Kate Nelder applied for orders to stop bullying at work under s.789FC of the Fair Work Act 2009 in relation to her employment with Life Without Barriers.

Ms Nelder resigned from her employment with effect from 15 October 2024. She is accordingly no longer a ‘worker’ or ‘at work’ in the business of Life Without Barriers. The resignation took effect after the parties entered into a Deed of Release on 10 October 2024 in settlement of “…all Claims the parties have now or may have in the future in connection with or relating to the Employment, the Contract, and the Resignation…”. The terms of the release in the Deed state:

“In consideration of the terms of this document, the Parties to this Deed forever release and discharge each other, including all directors, officers, employees and agents of the Company from all Claims (other than a claim under applicable workers compensation or superannuation legislation) which the parties may have now or may have in the future but for this document, in respect of, or arising out of, either directly or indirectly, the Employment, the Contract, and the Resignation.”

In the Deed, “Employment” is a defined term and means Ms Nelder’s employment by Life Without Barriers commencing on 12 December 2022 pursuant to the terms of a written contract of employment. It is important to observe that all of the alleged bullying at work described in Ms Nelder’s application occurred in the course of her employment with Life Without Barriers.

As Ms Nelder is not a ‘worker’ or ‘at work’ in the business of the respondents, there is no foreseeable risk that she will continue to be bullied while at work in that business. Further, and in any event, the Deed of Release operates as a complete answer to the application.[1] For these reasons, the application has no reasonable prospects of success.[2]

The application is dismissed under section 587(1)(c) of the Act.

COMMISSIONER

Hearing details:

Determined on the papers.

[1] Duraisamy v Sydney Trains[2017] FWC 4824, cited in Amio v Alstom Transport Pty Ltd [2018] FWC 220.

[2] Grabovsky [2021] FWC 5559; Grabovsky [2020] FWC 3164.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Nelder involved the applicant seeking an order to stop alleged bullying by the respondent, who was no longer employed by the applicant. The application was made to the Federal Circuit Court of Australia. The applicant claimed that the respondent had engaged in bullying behaviour while employed, which included harassment and humiliation. The applicant argued that this conduct had caused significant emotional distress and warranted an injunction to prevent further harassment.

The legal issues before the court included whether the court had jurisdiction to hear the application given the respondent was no longer employed by the applicant, and whether there were reasonable prospects of success for the applicant's claims. The court considered whether the Deed of Release signed by the parties precluded the applicant from pursuing the claims. The court had to determine if the applicant's claims were statute-barred and if the applicant had a complete answer to the respondent's defence, which was the Deed of Release.

The court found that the applicant's claims were statute-barred as the alleged bullying occurred while the respondent was employed, and the application was made after the respondent's employment had ended. The court held that the Deed of Release was a complete answer to the applicant's claims and that the applicant had no reasonable prospects of success. Consequently, the court dismissed the application for an order to stop the respondent from engaging in the alleged bullying.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established