Samantha (Sam) Chimirri - [2024] FWC 1564

[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…

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 Samantha (Sam) Chimirri

Details

AGLC: Samantha (Sam) Chimirri [2024] FWC 1564
Case: [2024] FWC 1564
Decision Date: 16 AUGUST 2024

CaseChat Overview and Summary

In the matter of Samantha (Sam) Chimirri, the court was presented with an application for an order to stop bullying. The application was summarily dismissed, with the court determining that it had no reasonable prospects of success. The application was brought by Ms Chimirri against a group of individuals and entities, alleging persistent and malicious harassment and bullying directed towards her. The respondents argued that the application was frivolous and vexatious, and should be dismissed as having no reasonable prospects of success.

The court was required to consider whether the application had any reasonable prospects of success, as per the relevant legal criteria. It was necessary to assess the merits of the claims, the evidence presented, and whether there was a viable legal basis for the orders sought. The court examined the particulars of claim and the evidence provided to determine whether the application met the threshold of having reasonable prospects of success. The court found that the application lacked the necessary evidentiary and legal foundation to proceed, leading to the dismissal.

The court's reasoning was grounded in the legal principles governing the dismissal of applications that lack reasonable prospects of success. It was determined that the claims were not substantiated by sufficient evidence and did not meet the necessary legal standards. The court highlighted the importance of ensuring that legal processes are not abused through frivolous applications, and that resources are directed towards cases with a legitimate basis. Consequently, the application was dismissed, and the court found that it had no reasonable prospects of success. The dismissal was upheld on appeal, confirming the correctness of the primary judgment.

Orders