Shantelle Meehan v Design by Vivid Pty Ltd

[2022] FWC 1162

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Application by Shantelle Meehan

(SO2022/141)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 13 MAY 2022

Application for an order to stop bullying – no risk that the applicant will continue to be bullied at work – failure to prosecute application – application dismissed.

Ms Shantelle Meehan has made an application for orders to stop bullying (Application) pursuant to section 789FC of the Fair Work Act 2009 (Cth) (Act).

I have decided to dismiss the Application for two independent reasons.

First, Ms Meehan’s former employer, Design by Vivid Pty Ltd, informed the Fair Work Commission (Commission) that Ms Meehan had resigned and no longer works for the organisation. Ms Meehan has been given multiple opportunities to inform the Commission whether she contests the assertion that she resigned and no longer works for Design by Vivid Pty Ltd, or whether there is any reason why her Application should not be dismissed. Ms Meehan has not taken up any of those opportunities to communicate any information or submissions to the Commission.

I am satisfied on the basis of the uncontested information provided to the Commission that Ms Meehan has resigned and no longer works for Design by Vivid Pty Ltd. It follows that there is no risk of Ms Meehan being bullied at work in her employment with Design by Vivid Pty Ltd. If there is no risk that a worker will continue to be bullied “at work by the individual or group”, then one of the pre-requisites in section 789FF of the Act for the Commission to be able to make an order to stop bullying will not be satisfied (Atkinson v Killarney Properties Pty Ltd T/A Perm-A-Pleat Schoolwear and Adrian Palm [2015] FWCFB 6503 at [21]). Accordingly, I exercise my discretion pursuant to section 587(1)(c) of the Act to dismiss the Application on the basis that it has no reasonable prospects of success.

Secondly, Ms Meehan has not taken any step to prosecute her Application in the time since it has been with my chambers. Ms Meehan did not participate in the conciliation conference on 2 May 2022, nor has Ms Meehan responded to various communications from my chambers since that time. In those circumstances, I am satisfied that it is appropriate to exercise my discretion pursuant to section 587(1) of the Act to dismiss the Application for want of prosecution.

Conclusion

The Application is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Shantelle Meehan brought an application against her former employer, Design by Vivid Pty Ltd, seeking an order to stop bullying under section 789FC of the Fair Work Act 2009. Deputy President Saunders dismissed the application on two grounds, neither of which had been contested by Ms Meehan. The Deputy President noted that Design by Vivid Pty Ltd had informed the Commission that Ms Meehan had resigned and no longer worked for the company, and that Ms Meehan had not disputed this fact. Because of her resignation, there was no longer a risk that Ms Meehan would continue to be bullied at work, and the Deputy President found that this was sufficient to dismiss the application.

In dismissing the application, the Deputy President also noted that Ms Meehan had not taken any steps to prosecute her application since it had been filed. She had not attended the conciliation conference, and had not responded to communications from the Deputy President's chambers. The Deputy President found that, in these circumstances, it was appropriate to exercise his discretion under section 587 of the Act to dismiss the application for want of prosecution. The Deputy President concluded that, given the two independent grounds on which the application could be dismissed, it was not necessary to consider other arguments that might have been available to the respondent.

The application was dismissed. There were no orders made in favour of either party.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established