Samantha (Sam) Chimirri
[2024] FWC 1564
•16 AUGUST 2024
| [2024] FWC 1564 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Samantha (Sam) Chimirri
(AB2024/50)
| COMMISSIONER MIRABELLA | MELBOURNE, 16 AUGUST 2024 |
Application for an order to stop bullying – summary dismissal application – whether application has no reasonable prospects of success.
Background
This decision deals with an application made to the Fair Work Commission (Commission) under s.789FC of the Fair Work Act 2009 (Act) by Ms Samantha (Sam) Chimirri for an order to stop bullying. Ms Chimirri is employed by Australian Postal Corporation T/A Australia Post (Australia Post) as a Postal Delivery Officer at the Hawthorn Delivery Centre, where she has worked for approximately 12 years.
Ms Chimirri alleges bullying conduct by an individual (Named Person) employed as a Delivery Centre Manager and who worked at the Hawthorn Delivery Centre with Ms Chimirri. The Named Person has been seconded to another delivery centre for a period of 12 months until February 2025.
Ms Chimirri seeks that the Commission make the following orders:
· The Named Person is to refrain from engaging in bullying behaviour, including by not raising their voice when addressing Ms Chimirri, not invading her personal space and not belittling or humiliating her;
· The Named Person is to stop misrepresenting Ms Chimirri’s industrial and workplace health and safety (WHS) rights;
· The Named Person is to undertake mandatory external anti-bullying training;
· The Named Person is to undertake training regarding WHS obligations;
· The Named Person and team leaders are to undertake training regarding safety and their duty of care in the workplace;
· Australia Post is to reinstate Ms Chimirri’s sick leave for time lost due to injury arising out of the alleged bullying behaviour;
· Australia Post is to withdraw reference to disciplinary action taken against Ms Chimirri;
· Australia Post is to refrain from retaliating against Ms Chimirri for exercising workplace rights such as raising WHS or industrial issues; and
· Australia Post is to refrain from retaliating against Ms Chimirri if she refuses to work overtime.
Alleged bullying behaviour
The details of the Named Person’s alleged behaviour are set out in the document particularising the alleged incidents of bullying sent to my chambers by Ms Chimirri’s representative on 18 April 2024.
However, the evidentiary contest between the parties does not need to be resolved. This is because, as will become evident below, there is no continuing risk to the safety of Ms Chimirri.
Consequently,
a) the Commission does not have jurisdiction to make any stop-bullying order; and
b) there is no utility in determining the rights and wrongs of historical matters.
Legislation
Section 789FF 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.
(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.’
Conciliation
I conducted conciliation conferences in this matter on 20 February 2024, 4 April 2024, and 6 June 2024 without success.
During the conference on 6 June 2024, Australia Post disclosed that the Named Person no longer works with Ms Chimirri because they had been seconded to another delivery centre.
I advised Ms Chimirri that I could not make orders against people who no longer posed a risk to her health and safety. Ms Chimirri confirmed she wished to proceed with the application.
Following that conference, I asked the parties to respond to the matter of the Named Person being removed from the Hawthorn Delivery Centre and seconded elsewhere. I further advised the parties that I intended to deal with the matter on the papers.
The parties’ responses
Australia Post submits:
· The Commission does not have the power to make the orders sought by Ms Chimirri because there is no continuing risk of bullying, even if it could be established the Named Person engaged in bullying (which Australia Post denies).
· The Named Person is no longer working with Ms Chimirri as they have been seconded to another delivery centre for a period of 12 months until February 2025.
· The Named Person is in a pool position and once their current secondment ends, they will be placed at another delivery centre. At this stage, the location has not been determined.
Ms Chimirri submits:
· The Commission should issue the orders sought.
· She has made comprehensive submissions regarding the incidents of bullying and the impact upon her health and safety, and she continues to rely upon those submissions.
· There is a risk she will continue to be bullied at work because there have been further incidents of bullying by people who formed part of the same group associated with the Named Person.
· Australia Post’s internal investigation was inadequate and ignored issues relating to health and safety.
· There is no effective procedure available to Ms Chimirri to resolve her grievances within Australia Post.
· The issues that gave rise to the application remain unresolved and are ongoing despite the removal of the Named Person from the workplace.
Consideration
I adopt the reasoning of Commissioner Hampton (as he was then) in Ms LP:[1]
‘[21] Having regard to the provisions of the FW Act, there are two prerequisites to the making of orders in matters of this kind. Firstly, a finding that the worker has been bullied at work by an individual or a group of individuals; and secondly, that there is a risk that the worker will continue to be bullied at work by the individual or group concerned.
[22] Accordingly, where there is no risk that the applicant worker will continue to be bullied at work by the individual or group concerned, there is no prospect that the s.789FC application can succeed. Equally, where such a risk is found, the Commission may make an order preventing the worker from being further bullied by that individual or group. This means that any orders must be directed towards the prevention of relevant future unreasonable conduct and be informed by, but not necessarily limited to, the prior unreasonable conduct as found. However, any orders must deal with the actual future risk, based upon appropriate findings, and having regard to the considerations established by s.789FF(2) of the FW Act.
[23] Subject to the above, and the constraint that an order cannot be made requiring payment of a pecuniary amount, the making of an order is a matter of discretion to be exercised judicially in the circumstances of each case.
[24] Accordingly, the power of the Commission to grant an order is limited to preventing the worker from being bullied at work, and the focus is on resolving the matter and enabling normal working relationships to resume in a mutually safe and productive manner.’
Having regard to the submissions of Australia Post, I am satisfied that the Named Person will be working at another delivery centre and will not have any managerial responsibility for Ms Chimirri.
Accordingly, there is no risk that Ms Chimirri will be bullied at work by the Named Person and consequently there is no prospect that the s.789FC application can proceed.
I am not satisfied that there is a risk that Ms Chimirri will continue to be bullied at work by the Named Person, who is the person named in her application, pursuant to s.789FF(1)(b)(ii). Therefore, even assuming that the first jurisdictional prerequisite of s.789FF(1)(b)(i) was satisfied (and I have made no finding of fact about it), there would not be jurisdiction to make an order to stop bullying.
Because there is no jurisdiction to make an order to stop bullying, it necessarily follows that the application has no reasonable prospects of success.
Conclusion
The application is dismissed pursuant to s.587 of the Act. An order will be issued concurrently with this decision and the Commission’s file in this matter will be closed.
COMMISSIONER
[1] [2016] FWC 763.
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