Shirley McIntyre v Commonwealth of Australia as represented by the Department of Infrastructure, Transport, Regional Development and Communications

[2021] FWC 4014

[2021] FWC 4014

FAIR WORK COMMISSION

DECISION

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

Shirley McIntyre
v
Commonwealth of Australia as represented by the Department of Infrastructure, Transport, Regional Development and Communications and others
(AB2021/80)

DEPUTY PRESIDENT DEAN CANBERRA, 12 JULY 2021

Application for an order to stop bullying – Applicant no longer employed – no reasonable prospect of success – application dismissed.

[1] Ms Shirley McIntyre has applied for an order to stop bullying under s.789FC of the Fair Work Act 2009. Ms McIntyre claims that she has been bullied at work by a number of co-workers during her employment with the Department of Infrastructure, Transport, Regional Development and Communications (the Department).

[2] On 9 June 2021 the Commission was advised by the Department’s legal representative that Ms McIntyre ceased employment with the Department on 2 June 2021. The Department seeks that this application be dismissed on the basis that it has no reasonable prospect of success.

[3] Ms McIntyre does not dispute that her employment with the Department has ended but objected to this application being dismissed.

[4] On 18 June 2021, Ms McIntyre provided submissions in opposition to her application being dismissed. She submitted that her application should not be dismissed because she is making every attempt to return to her employment with the Department. If she is successful in being reinstated, Ms McIntyre said that she would in all likelihood continue to be bullied by the named persons.

[5] On 23 June 2021, Ms McIntyre made an application for relief under s.394 of the Act alleging she had been unfairly dismissed by the Department. Ms McIntyre has requested that her anti-bullying application be stood over until such time as her unfair dismissal application is determined.

[6] By email correspondence of 28 June 2021, the parties were advised that I declined Ms McIntyre’s request to have her application stood over, and that in circumstances where Ms McIntyre was no longer employed with the Department, I was of the view that the application did not have reasonable prospect of success and should therefore be dismissed. It was further noted in the correspondence that if Ms McIntyre’s unfair dismissal application is successful and she is reinstated, she is not precluded from making a fresh application seeking an anti-bullying order.

[7] The Commission did not receive any further response from Ms McIntyre.

[8] Section 789FF(1) of the Act provides as follows:

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.

[9] Section 789FF(1) makes clear that Ms McIntyre’s application under section 789FC can only be successful if I am satisfied that she has been bullied at work and that there is a risk that the bullying will continue.

[10] It is common ground that Ms McIntyre is no longer employed in the workplace where the bullying was alleged to have occurred. There is no evidence to suggest that the alleged bullying could continue to occur in circumstances where she was no longer employed. As such, there can be no risk that Ms McIntyre will continue to be bullied at work. Hence, the prerequisites in s.789FF of the Act for the Commission to exercise a discretion to make an order to stop bullying are not met.

[11] In all the circumstances, I am satisfied that the application has no reasonable prospects of success.

[12] Section 587 gives the Commission the power to dismiss an application on a number of grounds:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

[13] I have determined that it is appropriate to exercise my discretion pursuant to s.587(1)(c) of the Act to dismiss the application on the basis that it has no reasonable prospects of success.

[14] Accordingly, the application is dismissed.

DEPUTY PRESIDENT

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