Patricia Rojo-Diaz v Goodlife Operations Pty Ltd

[2021] FWC 2541

[2021] FWC 2541

FAIR WORK COMMISSION

DECISION

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

Patricia Rojo-Diaz
v
Goodlife Operations Pty Ltd; and Ors
(AB2021/13)

DEPUTY PRESIDENT BINET PERTH, 9 JUNE 2021

Application for an FWC order to stop bullying.

[1] On 12 January 2021, Ms Patricia Rojo-Diaz (Ms Rojo-Diaz) made an application (Application) for an order to stop bullying under s.789FC of the Fair Work Act 2009 (FW Act).

[2] Ms Rojo-Diaz is employed by Goodlife Operations Pty Ltd (Goodlife) as a Group Fitness Zumba Instructor at Goodlife Floreat. At the time of the Application Ms Rojo-Diaz had been employed by Goodlife for over ten years.

[3] The Application alleges that the Club Manager of Goodlife Floreat (Named Person) engaged in bullying behaviour towards her.

[4] Having received a response to the Application from Goodlife and the Named Person, the Application was subsequently listed for a conciliation conference on 3 March 2021 (Conference).

[5] During the conference Goodlife made various commitments to seek to address the concerns raised by Ms Rojo-Diaz. However, following the conference Ms Rojo-Diaz indicated that she wished to proceed with the Application.

[6] On 15 March 2021 the Named Person informed Chambers that he had resigned from his position at Goodlife Floreat.

[7] On 25 March 2021 directions were issued to the Parties requiring them to file materials in advance of a hearing on 14 May 2021 to determine the Application (Directions). Inter alia the Directions required Ms Rojo-Diaz to file in the FWC and serve on the parties an outline of submissions, any witness statements upon which she relied, copies of any authorities on which she relied and any documentary evidence on which she relied no later than 4pm on Thursday 1 April 2021.

[8] On 29 March 2021 correspondence was received from Goodlife confirming that the Named Person had resigned from his position as Club Manager and advising that the Named Person would be employed by Goodlife on a casual basis as a Group Fitness Instructor in a position in which the Named Person would no longer have a direct working relationship with Ms Rojo-Diaz. Goodlife indicated that it objected to Ms Rojo-Diaz’s Application proceeding on the basis that in these circumstances there is no risk to Ms Rojo-Diaz of the alleged bullying by the Named Person continuing in the workplace in the future.

[9] On 7 April 2021 an email was sent to the parties from my Chambers noting that Ms Rojo-Diaz had failed to file her materials in accordance with the Directions or seek an extension of time to comply with the Directions. The email also 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 Rojo-Diaz’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.”

[10] The email also warned that in the absence of her filing materials Goodlife and/or the Named Person may apply for the Application to be dismissed pursuant to section 587 of the FW Act.

[11] On 14 April 2021 Goodlife filed with the FWC a Form F1 Application seeking the FWC dismiss the Application under section 587(1)(c) of the FW Act on the grounds that the Named Person had resigned from his role as Club Manager at Goodlife Floreat and would no longer have a direct working relationship with Ms Rojo-Diaz.

[12] On 15 April 2021 Chambers again wrote to Ms Rojo-Diaz noting that she had not yet complied with the Directions and informing her that I was considering dismissing the Application pursuant to section 587 of the FW Act. The email invited Ms Rojo-Diaz to provide reasons as to why the FWC should not dismiss her Application and evidence or other documentary material supporting those reasons by 20 April 2021. The email warned Ms Rojo-Diaz that if she did not file submissions and evidence by 20 April 2021 the Application for an order to stop bullying would be dismissed.

[13] On 16 April 2021 Ms Rojo-Diaz emailed Chambers with three reasons why she wished to continue her Application. The reasons included that Ms Rojo-Diaz wanted a resolution on how she was allegedly treated by the Named Person, that the Named Person had downsized Ms Rojo-Diaz’s working hours, and the Named Person had allegedly accused Ms Rojo-Diaz of committing fraud in relation to over stating the number of participants that had participated in her classes.

[14] On 27 April 2021 Chambers reminded Ms Rojo-Diaz that the FWC may not be able to make an Order to stop bullying if there is no future risk of bullying from the Named Person. Chambers noted that Ms Rojo-Diaz had still not filed any materials in accordance with the Directions. Chambers highlighted to Ms Rojo-Diaz for a third time that her materials (submissions, signed and dated copies of witness statements and authorities) were required to be filed with the FWC, Goodlife and the Named Person in order for the matter to proceed. Ms Rojo-Diaz was informed that she had been granted a further until 12pm Friday 30 April 2021 to file her materials.

[15] No response was received from Ms Rojo-Diaz within the time frame set out in the email. Neither party sought to be heard orally.

[16] On 3 May 2021 the parties were advised that the Application would be dismissed pursuant to section 587 of the FW Act.

[17] 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.”

[18] For the Commission to make an order to stop bullying under section 789FF of the FW Act, the FWC must be satisfied that there is risk that the worker will continue to be bullied at work by an individual or group of individuals.

[19] 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.”

[20] The FWC has no power to award compensation with regards to the matters set out in in Ms Rojo-Diaz’s Application or in relation to an application to stop bullying under section 789FC of the FW Act. Any order made by a FWC order operates prospectively and is directed at preventing the worker being bullied at work. The FW Act is not directed at punishing past bullying behaviour or compensating the victims of such behaviour. It is directed at stopping future bullying behaviour. 1

[21] Ms Rojo-Diaz has provided no evidence to support her assertion that she was bullied at work or that there is a risk that she will be bullied at work in the future. Particularly in circumstances where the Named Person no longer is her supervisor nor works directly with her.

[22] I note that the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so. 2 Such a decision results in the extinguishment of a party’s application, which has been made in order to seek some form relief from a beneficial statutory provision.3

[23] In L. Sayer v Melsteel Pty Ltd 4the Full Bench held that section 587(1) provides for the dismissal of a matter where the applicant has failed to prosecute their case without examining the merits.5

[24] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Ms Rojo-Diaz has failed to respond to various directions on multiple occasions.

[25] 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.

[26] Accordingly, the Application is dismissed under section 587(1)(c) of the FW Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   Re Ms McInnes[2014] FWCFB 1440.

 2   General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].

 3   Nick Williams v Sydney Gay & Lesbian Business Association [2019] FWC 4399 at [12].

 4   [2011] FWAFB 7498

 5   [2011] FWAFB 7498 at [19].