Paula Denise Gilbard

[2023] FWC 2507

[2023] FWC 2507

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Paula Denise Gilbard

(AB2023/265)

DEPUTY PRESIDENT DOBSON BRISBANE, 28 SEPTEMBER 2023

Application for an FWC order to stop bullying

1. This decision concerns an application made under section 789 FC of the Fair Work Act 2009 (Cth) for an order to stop bullying (the Application). The Applicant is Mrs Paula Denise Gilbard (the Applicant). The Applicant was at the time of the application, engaged in performing voluntary office work for the Animal Justice Party Limited (the Company) in Brisbane. The application is made against the Animal Justice Party and a further eight persons against whom bullying is alleged by the Applicant (the Named Persons). Each of the Named Persons is also an employee of Office Holder of the Company in various positions of Director, President, Vice President, Secretary, Treasurer, IT Manager and Human Resources Director.

1. The Respondent and Named Persons each deny having ever behaved unreasonably towards the Applicant.

1. The matter was initially allocated to Commissioner Spencer and the Commission conducted a conference of the parties on 7 September (the Conference). The Conference was attended by the Respondent and some of the Named Parties, by telephone and the matters remained unresolved. The Respondent made a jurisdictional objection that the Applicant was not a worker and also submitted that the Applicant was no longer performing work for the Respondent as she had been suspended. The Respondent subsequently withdrew the objection about the Applicant being a worker and noted it was satisfied that the Applicant was a worker for the purposes of the Act.

1. At the conclusion of the Conference, the Applicant was directed to file by 18 August 2023, her submissions in respect of the Respondents submissions.

1. The matter was reallocated to my chambers on 21 August 2023 and there was some delay as the Applicant took a period of leave overseas. The Applicant filed submissions on 1 September 2023. On 8 September 2023, directions were issued for the filing of submissions and evidence by the Respondent and the Applicant in Reply.

1. The Respondent filed on 12 September and the Applicant filed submissions in reply on 15 September 2023.

1. The parties were asked to file an agreed statement of facts but were unable to reach agreement do so and wrote to my chambers to advise of that on 18 September 2023. There being no agreed issues the matter proceeded to be heard on 28 September 2023.

1. The matter was listed for hearing on 28 September 2023. In the hearing, the parties’ views were sought as to the possibly of resolving the matter by conciliation. There was no agreement on this point. I then sought the parties’ views as to the best way to consider the matter and having considered the views of the party, the hearing proceeded as a determinative conference.

The Applicant’s Case

1. The Applicants submission set out her case in some detail which I don’t intend to traverse other than to briefly say that the Applicant alleges that she was bullied by the Respondents and that when she raised the issues of bullying, her membership of the First Respondent was suspended. Those submissions raised the jurisdictional issue of whether there is a risk that the Applicant would continue to be bullied at work by an individual or group. The absence of such risk affects the jurisdiction to make an order to stop bullying even where the Commission is satisfied that a worker has been bullied at work by an individual or group. It is not in dispute between the parties that the Respondent wrote to the Applicant on 30 August 2023 and advise the Applicant that her membership of the Respondent had been suspended for indefinitely but for a period of at least 6 months and that it would be reviewed by the Board before the expiry of that period subject to a number of factors.[1] It is not necessary for me to make findings in respect of the bullying allegations given the threshold issue pursuant to s.789FF(1)(b)(ii) of the Act.

1. The Applicant submitted in evidence that she may still be at risk of ongoing bullying if she were to turn up to volunteer with other party members in a booth or rally of some nature. Further she clarified that this would be as an ordinary member of the public.

The Respondent’s Case

1. The Respondent and the Persons Named set out their case in their detailed submissions which I don’t intend to traverse other than to briefly say that the Respondent agrees that the Applicant’s membership of the First Respondent is under suspension although they differ on the reasons why. The Respondent and the Persons named, contest the allegations of bullying.

Consideration

1. Section 789FF of the Act sets out the matters the Commission must be satisfied of before it has the power to make an order to stop bullying. Even where the prerequisites have been satisfied the making of an order is not required but rather it remains a discretionary decision for the Commission as to whether or not an order will be issued.

1. Section 789 FF is set out below.

“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.”

1. The Commission only has the jurisdiction to make an order to stop bullying where it is satisfied that a worker has been bullied at work by an individual or group, and the Commission is satisfied there is a risk that the worker will continue to be bullied at work by the individual or group.

1. The anti-bullying jurisdiction is not designed to punish persons who have behaved unreasonably towards others in the past. Rather it is centred on stopping future bullying behaviour.[2]

1. The question posed by 789FF(1)(b)(ii) is, is there a risk that the worker will continue to be bullied at work by the individual or group, is to be answered objectively on the information before the Commission. The onus is on the Applicant to provide evidence or submissions that will satisfy the Commission that there is a risk that he will continue to be bullied at work.

1. The Applicant’s evidence was uncontested that she had been suspended indefinitely from her duties with a review to be conducted at around 6 months. The Applicant submitted that she might be subject to further bullying if she attended as a member of the public at a rally or booth of the Respondent. The Respondent submitted and I agree that this would not fall within the definition of ‘at work’ as envisaged by the Act.

1. In determining the matter, I have not determined whether the Applicant has been bullied at work by an individual or a group of individuals(s.789FF(1)(b)(i)). That is because in light of my conclusion that there is not a risk that the Applicant will continue to be bullied at work by the Named Persons in the Application, such a determination is otiose.

1. Whilst I do recognise the Applicant’s concerns, based on the information before the Commission I am not satisfied there is a risk the Applicant will continue to be bullied at work by the Named Persons in the Application.

1. Therefore, even assuming that the first jurisdictional prerequisite of s.789FF(1)(b)(i), which has not been tested in this matter at all, was satisfied, the Commission still would not have jurisdiction to make an order to stop bullying. The Application must be dismissed, and I so order.

DEPUTY PRESIDENT

[1] DCB p.156.

[2] Re McInnes, [2014] FWCFB 1440, at [9].

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