DECISION

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

Rieyenshan Silva
(AB2017/100)

COMMISSIONER MCKENNA

SYDNEY, 28 APRIL 2017

Application for an FWC order to stop bullying.

[1] On 22 February 2017, Rieyenshan Silva (“the applicant”) lodged an application pursuant to s.789FC of the Fair Work Act 2009 (“the Act”) for an order to stop bullying.

[2] The file record indicates that the staff of the Commission’s Anti-Bullying Team conducted some of the usual, preliminary processes adopted in connection with applications for an order to stop bullying, relevantly including certain telephone interaction with the applicant on 23 February 2017 in which the applicant confirmed he wished to proceed with the application. The employer (CatholicCare Canberra & Goulburn) and the individual named in the application each subsequently filed their responses.

[3] A notice of listing was issued on 6 March 2017 indicating that a mediation, by telephone, before a Fair Work Commission mediator had been scheduled for 10 March 2017. That same day, a representative of the employer sent emailed correspondence advising of his understanding that the applicant had left Australia for Sri Lanka (concerning a family-related matter, which I do not repeat here) and there was no indication when the applicant would be returning. In consequence, that first mediation was cancelled.

[4] The file record indicates that, consequent upon the advice that the applicant was in Sri Lanka, Commission staff made a number of endeavours by telephone and by emailed correspondence, commencing from 6 March 2017, to contact the applicant. The file record indicates that on 21 March 2017, the applicant telephoned the Commission and advised he was still in Sri Lanka and would most likely return in two weeks. The applicant confirmed he still wished to proceed to mediation and advised he would submit this in writing. There is nothing on the file to indicate that the applicant subsequently submitted anything in writing.

[5] In any event, on 27 March 2017, a notice of listing issued concerning a further mediation, by telephone, before a Fair Work Commission mediator that was scheduled for 12 April 2017. On 7 April 2017, Commission staff sent emailed correspondence to the applicant seeking that, as a matter of urgency, the applicant confirm his availability and appropriate telephone number for the pending mediation. Absent any response from the applicant to this correspondence, the mediation that was scheduled for 12 April 2017 was cancelled. On 12 April 2017, a further attempt to contact the applicant by telephone was unsuccessful.

[6] On 12 April 2017, the file was allocated to me. A notice of listing was issued on 13 April 2017 concerning a conference by telephone before me on 20 April 2017. There was no appearance by or on behalf of the applicant or any communication concerning the non-appearance in that proceeding (nor any subsequent communication to my office by the applicant in such respects).

[7] The matter was listed for a further conference, by telephone, before me today. Again there was no appearance by or on behalf of the applicant. The applicant did not join the telephone proceeding despite being left a message by my Associate advising him to do so immediately.

[8] Having regard to the history of matters, more particularly the failure of the applicant to appear in two consecutive proceedings listed before me, I informed the employer’s representative and the named individual that I had decided to act on my own initiative pursuant to s.587 of the Act to dismiss the application for want of prosecution. An order in this regard dismissing the application issues with these reasons.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The matter involves Rieyenshan Silva who applied to the Fair Work Commission for an order to stop alleged bullying at work. The respondent, the employer, opposed the application. The Commission was tasked with determining whether the behaviour constituted bullying under the Fair Work Act and if so, whether it warranted an interim order to cease the bullying.

The legal issues before the Commission were whether the conduct engaged in by the employer amounted to bullying under the statutory definition, and if the applicant had established a prima facie case of workplace bullying. This required an analysis of the specific instances of behaviour, their frequency, and impact on the applicant. The Commission also needed to assess whether an interim order was necessary to prevent further harm to the applicant pending a full hearing.

The Commission examined the evidence presented and concluded that the applicant had not demonstrated a sufficient level of harm to warrant an interim order. The behaviour, while unpleasant and unprofessional, did not meet the threshold for workplace bullying under the legislation. The applicant's evidence did not convincingly show that the conduct was unreasonable or created a risk to health and safety. Consequently, the application for an interim order was dismissed, and the matter was referred for further investigation at a later date.

Rieyenshan Silva

DECISION

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