Sherri-Ruth Andrews

[2016] FWC 7102

[2016] FWC 7102

FAIR WORK COMMISSION

DECISION

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

Sherri-Ruth Andrews
(AB2016/232)

COMMISSIONER WILLIAMS PERTH, 5 OCTOBER 2016

Application for an FWC order to stop bullying.

[1] This decision concerns an application made by Ms Sherri-Ruth Andrews (Ms Andrews or the applicant) under section 789FC of the Fair Work Act 2009 (the Act). The Employer/Principal is RE/MAX GBT Realty Pty Ltd T/A RE/MAX GBT Realty (the Employer/Principal).

[2] On 8 September 2016 the Employer/Principal advised that Ms Andrews’ employment had been terminated. The Employer/Principal submitted that therefore Ms Andrews is not eligible to make this application to the Commission.

[3] Consequently on 12 September 2016 a Commission staff member spoke to Ms Andrews who confirmed that her employment was terminated on 7 September 2016 but that she wished to proceed with her application.

[4] The Commission’s records also show on 15 September 2016 the applicant filed an application to deal with contraventions involving dismissal pursuant to section 365 of the Fair Work Act 2009 (the Act).

[5] On 15 September 2016 the Commission wrote to Ms Andrews and advised that the Commission’s preliminary view was that as a consequence of her employment having been terminated she did not meet the definition of worker as defined in the Act and also there was no risk of her being bullied at work in the future and therefore there was no power for the Commission to make an order to stop bullying and consequently her application should be dismissed. Ms Andrews was invited to put any submissions on this preliminary view before the matter was decided.

[6] As at the date of this decision Ms Andrews has not provided any response to the Commission’s correspondence.

The legislation

[7] The relevant parts of the legislation are set out below.

“789FA Guide to this Part

This Part allows a worker who has been bullied at work to apply to the FWC for an order to stop the bullying.

789FB Meanings of employee and employer

In this Part, employee and employer have their ordinary meanings.

Division 2—Stopping workers being bullied at work

789FC Application for an FWC order to stop bullying

(1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.

…

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.”

Consideration

[8] Ms Andrews’ employment has now been terminated and consequently she does not meet the definition of “worker” and is no longer “...at work...”therefore I am not satisfied there is a risk that in future Ms Andrews will be bullied at work.

[9] The Commission only has jurisdiction to make an order under section 789FF of the Act if, amongst other prerequisites, the Commission is satisfied there is a risk of continued bullying of the applicant at work. Where there is not a risk of future bullying at work the Commission is not empowered to make an order to stop bullying.

[10] In the circumstances of this matter I find that there is no jurisdiction for an order being made by the Commission under section789FF of the Act. Consequently I must dismiss this application that was made under section 789FC of the Act.

[11] An order to this effect will be issued in conjunction with this decision.

COMMISSIONER

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