Rebecca Spoor
[2019] FWC 4909
•15 JULY 2019
| [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 provided its submissions on 5 June 2019.
At her request, Ms Spoor was provided an additional period until 9 July 2019 to provide any submissions and/or material in reply. Ms Spoor did not provide any further materials by this date. Consequently, on 10 July 2019 my chambers wrote to Ms Spoor confirming that no further materials had been received from her and that I would proceed to determine the matter. I have done so on the materials currently before me.
Applicant’s submissions
Ms Spoor submits that her application ought not be dismissed. Ms Spoor says that since the termination of her employment she has been subjected to the following bullying behaviour by the Respondents or persons associated with the Respondents:
· on 24 May 2019 she received a missed call from Ms Kalweski;
· on 7 June 2019 she received a missed call from Mr Peter Rowland;
· on 12 June 2019 she received a call from an unnamed current employee of PRG stating that Ms Yee had an inappropriate conversation regarding Ms Spoor; and
· on 18 June she missed a call from a client of PRG. Ms Spoor returned the call and was asked by the client if she could call Ms Yee.
Ms Spoor therefore submits that post the termination of her employment the Respondents have continued to engage in bullying behaviour and for that reason the Commission can continue to deal with her application. I understand this to be a submission to the effect that notwithstanding the termination of Ms Spoor’s employment there is a risk that she will continue to be bullied at work for the purposes of Part 6-4B of the Act.
Respondents’ submissions
The Respondents submit that Ms Spoor’s application ought be dismissed as it has no reasonable prospects of success. The Respondents deny that Ms Spoor has at any time been bullied at work as alleged. The Respondents say further that other than Mr Rowland mistakenly calling Ms Spoor on 7 June 2019, the other alleged post termination conduct did not occur and therefore cannot constitute bullying. In addition, the employer says further that given the termination of Ms Spoor’s employment there can be no risk that she will continue to be bullied at work and further that the alleged post termination conduct, even if it occurred, did not occur whilst Ms Spoor was at work.
Statutory provisions
Section 789(1) FF of the 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.
Accordingly, under section 789FF(1) in order for me to make an order to stop bullying, I must be satisfied not only that Ms Spoor has been bullied at work by an individual or group of individuals, but also that there is a risk that she will continue to be bullied at work by that individual or group of individuals.
Consideration
It is uncontested that Ms Spoor’s employment was terminated on 24 May 2019.
The operation of section 789FF(1) in circumstances where the applicant’s employment has been terminated has been considered in a number of decisions of the Commission. In Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A
ANZ Bank and Another[2] Gostencnik DP dealt with an anti-bullying application where the applicant had been dismissed by the employer. The Deputy President held:
“[15] As s. 789FF(b) makes clear, I must be satisfied not only that Mr Shaw has been bullied at work by an individual or group of individuals but also that there is a risk that he will continue to be bullied at work by that individual or group of individuals. Therein lays the difficulty for Mr Shaw. It seems to me that I have no power to make an order to stop bullying unless I can be satisfied relevantly that there is a risk that at work Mr Shaw will continue to be bullied by the individual or group of individuals identified in his application.
[16] It is clear that Mr Shaw is no longer employed by ANZ. The employment relationship has ended. That Mr Shaw is taking steps to seek a remedy in relation to his dismissal and that that may result in reinstatement at some point in the future does not have a bearing on the question that I must answer and is speculative and uncertain. It seems to me clear that there cannot be a risk that Mr Shaw will continue to be bullied at work by an individual or group of individuals identified in his application because Mr Shaw is no longer employed by ANZ and therefore is no longer at work.
[17] It necessarily follows that I do not have power to make an order to stop bullying and, as a consequence, I am satisfied that Mr Shaw’s application has no reasonable prospect of success.”
In Obatoki[3] the Full Bench was dealing with an application where the applicant was no longer employed and the stop-bullying application had been dismissed by the Commission. The Full Bench concluded as follows:
“[16] We consider that the Deputy President correctly held that there were no reasonable prospects that the application could succeed. The Commission could not be satisfied that the second of the two jurisdictional prerequisites of s.789FF(1) could be met. There was no evidence before the Commission indicating that there would be a risk that the Appellant would continue to be bullied at work once he ceased to be engaged by Mallee Track and ceased working at its premises or providing services for it. It necessarily follows that no order pursuant to s.789FF(1) could be made and the application had no reasonable prospects of success.”
This approach was also subsequently confirmed by the Full Bench in Atkinson v Killarney Properties Pty Ltd[4] and Cox v Tweed Health for Everyone Pty Ltd.[5]
Under section 789FF(1)(b)(ii) the risk of which I must be satisfied is the risk that Ms Spoor will continue to be bullied “at work” by the Respondents. It is not that there is a risk that Ms Spoor will continue to be bullied by the Respondents more generally, or in some other environment. As observed by the Full Bench in Bowker v DP World Melbourne
Limited [6] the words “at work” are words of limitation. Ms Spoor’s employment with PRG has ended. She is no longer at the workplace. She is not engaged in the performance of work for PRG of any kind, in any capacity. Nor is she engaged in any other activity authorised or permitted by PRG. Accordingly, Ms Spoor is no longer at work. Further, there is no material before me which indicates that there is any prospect of Ms Spoor returning to the workplace in any capacity as a worker in the future. In these circumstances it seems clear that there can be no risk that Ms Spoor will continue to be bullied at work by the individuals identified in her application because she is no longer employed by PRG and is therefore no longer at work. The alleged conduct of the Respondents does not change that. The fact that the conduct is alleged to have been engaged in by employees of Ms Spoor’s previous employer or persons connected with or associated with Ms Spoor’s previous employer, does not result in Ms Spoor therefore being at work. The Respondents may be at work, but Ms Spoor is not. This has been that case since 24 May 2019 and remains so, notwithstanding the alleged conduct of the Respondents.
Accordingly, in the present circumstances, I am not satisfied that there is a risk that Ms Spoor will continue to be bullied at work for the purposes of section 789FF(1)(b)(ii). It necessarily follows that I do not have power to make an order to stop bullying pursuant to section 789FF(1).
For completeness, I note that pursuant to that section the Commission may make orders to prevent the applicant from being bullied at work by the individual or group of individuals in respect of whom the application is made. Only Ms Kalweski and Ms Yee are named in the application. Mr Rowland is not named in the application. Accordingly, on the basis of the application as filed no orders could be made in respect of Mr Rowland, even if orders were capable of being made in the present circumstances.
Application dismissed
Section 587(1) of the Act provides:
“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.”
In all of the circumstances of this matter and based on the materials before me, I am satisfied that I do not have the power to make an order to stop bullying and as a consequence, 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.
Accordingly, the application is dismissed under s.587(1)(c) of the Act.
DEPUTY PRESIDENT
<PR710330>
[1] In the circumstances I waived compliance with the Fair Work Commission Rules 2013
[2] [2014] FWC 3408
[3] Olusegun Victor Obatoki [2014] FWC 8828
[4] [2015] FWCFB 6503
[5] [2018] FWCFB 1440
[6] [2014] FWCFB 9227 at [45]
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