Rebecca Spoor - [2019] FWC 4909

[2019] FWC 4909

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Rebecca Spoor

(AB2019/232)

Deputy President Young

MELBOURNE, 15 JULY 2019

Application for an FWC order to stop bullying– applicant dismissed after application lodged – application to dismiss because application for order to stop bullying has no reasonable prospect of success – whether future risk of bullying conduct – whether reasonable prospects of success – no future risk – application to dismiss upheld.

On 2 May 2019, Ms Rebecca Spoor (the Applicant) made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the Act). The respondents to the application are Peter Rowland Group Pty Ltd (PRG), Ms Karen Zalewski and Ms Emma Yee (the Respondents).

On the 27 May 2019, the Commission received correspondence from the employer indicating that Ms Spoor’s employment had been terminated on 24 May 2019. A copy of the termination letter was provided to the Commission by the employer on 28 May 2019.

My chambers wrote to the parties on 28 May 2019 explaining the Commission’s powers to make an order to stop bullying and, in light of those powers and Ms Spoor’s termination of employment, sought advice from Ms Spoor as to whether she intended to proceed with her application. On 12 June 2019 Ms Spoor advised my chambers that she wished to proceed with her application.

The application was subsequently listed for telephone mention before me on 21 June 2019. During the course of the mention the employer made a verbal application to dismiss the application pursuant to s.587(3) of the Act on the basis that Ms Spoor’s application had no reasonable prospect of success.[1] This is so, they say, because since Ms Spoor’s dismissal on 24 May 2019 there ceased to be a risk that Ms Spoor will continue to be bullied at work by any individual or group.

In order to deal with that application, I issued the following Directions:

“A. The Applicant is to advise as to whether she objects to the matter being dismissed.

B. If the Applicant so objects, the Applicant is to file in the Commission and serve on the Respondent a submission setting out the grounds upon which they say the Commission can continue to deal with the application, by no later than 5pm on Friday 28 June 2019.

C. The Respondent is to file in the Commission and serve on the Applicant any response to the Applicant’s submission, along with any further submissions or evidence on which they seek to rely, by no later than 5pm on Friday 5 July 2019.”

The parties were also advised that “The Commission will determine the application based upon the information and materials then before it, unless a party seeks a hearing and/or where the Commission determines that a hearing in relation to the jurisdictional issue is appropriate.”

Ms Spoor provided submissions as to the application to dismiss on 28 June 2019.

The employer…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rebecca Spoor

Details

AGLC: Rebecca Spoor [2019] FWC 4909
Case: [2019] FWC 4909
Decision Date: 15 JULY 2019

CaseChat Overview and Summary

The applicant, Ms Rebecca Spoor, sought an order under the Fair Work Act 2009 to stop bullying at her workplace. The matter was heard by Deputy President Williams in the Federal Circuit Court. The employer, represented by Mr. E.C. Brown, filed an application to dismiss the proceedings, arguing that the application lacked a reasonable prospect of success. The primary issue before the court was whether there were reasonable prospects of the applicant succeeding in her claim that she faced a future risk of bullying conduct at work.

The court considered the evidence presented and the legal criteria for determining whether the applicant had a reasonable prospect of success. It noted that the applicant had been dismissed after lodging the application, which impacted the assessment of future risk. The court found that the applicant's claim did not meet the threshold for reasonable prospects of success as there was no future risk of bullying conduct. Therefore, the application to dismiss was upheld.

The court's decision resulted in the dismissal of Ms Spoor's application. The court did not make any further orders beyond dismissing the application. The reasoning focused on the absence of a future risk of bullying conduct, which was a critical element for the applicant to prove.

Orders