Shoebir Kaabi

[2020] FWC 206

[2020] FWC 206

FAIR WORK COMMISSION

DECISION

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

Shoebir Kaabi
(AB2019/220)

DEPUTY PRESIDENT CROSS SYDNEY, 17 JANUARY 2020

Application for an FWC order to stop bullying.

[1] This decision concerns an application made under section 789 FC of the Fair Work Act 2009 (Cth) for an order to stop bullying (the “Application”). The Applicant is Mr Shoebir Kaabi (the “Applicant”). The Applicant is employed by the Super Cheap Auto Pty Ltd (the “Company”) in Sydney. There are eight persons against whom bullying is alleged by the Applicant (the “Named Persons”). Each of the Named Persons is also an employee of the Company in various positions of Human Resources Manager, Human Resources Manager, Cluster Manager, Area Manager, two Store Managers and two Team Members.

[2] The Named Persons each deny having ever behaved unreasonably towards the Applicant.

[3] The Commission conducted a conference of the parties on 14 June, 2019 (the “Conference”). The Conference was attended by the Company’s representatives, and most if not all the Named Persons either in person, or by video link with Brisbane. The Applicant did not attend the Conference. The day before the Conference the Applicant had requested that he be permitted to attend the Conference by telephone. That request was rejected. Upon the Applicant’s non-attendance at the Conference he was contacted by telephone and participated in the Conference by telephone.

[4] At the conclusion of the Conference, the Applicant was directed to file by 26 July 2019, the outline of orders that he sought as an outcome to the Application, together with any evidence that he wished to rely upon in support of those orders. On 26 July 2019, the Applicant filed a document outlining the Orders he sought, without any supporting evidence. The orders sought were as follows:

“To whom it may concern,

I will outline the orders I want to be fulfilled.

Super Retail Group has rectified most issues that I have mentioned, though I would like these key points to be addressed;

•  To be treated in a fair and respectful manner, not just myself but all staff to adhere the company’s policies of an equal and fair workplace.

•  A formal apology on behalf of all parties involved in this matter.

•  More support for workers who experience bullying within the company.

•  Upper management such as HR take a refresher course on how to deal with workplace bullying within the company.

•  To have no dealings with Agnes Stone & Mariam Al-Mallah.

•  More training for staff on preventable workplace bullying & harassment.

•  For the company to provide adequate training for new & existing workers, such as workplace induction, policies & training.

I would like to thank the commission for the support and help they have provided. I would also like to thank Super Retail Group for rectifying all issues raised.

Thankyou
Shoebir Kaabi”

[5] The Company responded to the orders sought in a comprehensive fashion on 20 August 2019 (the “Company Response”), and the Applicant replied to that response on 11 September 2019 (the “Applicant’s Reply”). Both the Company Response and the Applicant’s Reply included a closing part entitled “Conclusion”. The conclusion in the Company Response was as follows:

“Conclusion

It is the Respondents’ position that they have addressed all of the Applicant’s points above and that they can take no further steps due to the policies, procedures, support avenues and training requirements that are already in place. The Respondents note that over the last four months there have been no concerns raised by the Applicant. Accordingly, the Respondents request that the FWC decline to issue any of the orders sought by the Applicant and take steps to bring the matter to a close.”

[6] The conclusion in the Applicant’s Reply was as follows:

“Conclusion

...

This is the main reason why this issue has dragged out for so long. SRG fails to take responsibility for the wellbeing of their staff. After I raised this situation with the Fair work, I was harassed and needed a clearance from a doctor about my mental health in order for me to come back to work. Though when I initially addressed this with the company, they did even take me seriously earlier in February. It is funny how all of the sudden they became worried about my wellbeing when this matter has escalated. This letter also paints me to be as the antagonist. With all the evidence provided it is still never enough for SRG to take blame for how they have treated me. This still is bullying in my perspective. For this very reason I would like a person (sic) apology and I have stated my grounds for this above.”

[7] Those conclusions raised the jurisdictional issue of whether there is a risk that the Applicant would continue to be bullied at work by an individual or group. The absence of such risk affects the jurisdiction to make an order to stop bullying even where the Commission is satisfied that a worker has been bullied at work by an individual or group.

[8] The matter was listed for further directions hearing on 2 October 2019. In that directions hearing enquiry was made of the Applicant as to whether he sought a determination in relation to the Application. The Applicant indicated that he did want a determination, and directions were issued in the directions hearing. On 14 October 2019, the Applicant emailed my chambers as follows:

“Hi,

I still have not received an email in regards to the evidence required from my hearing. Could you please outline exactly what I will need to provide please thankyou.”

The directions were confirmed to the parties in an email from my Chambers dated 15 October 2019 as follows:

“Dear Mr Kaabi,

All details relating to the hearing of your application was provided at the Directions Hearing on 2 October 2019. For clarity, the following Directions were made at the Directions Hearing:

1. The Applicant is directed to file their outline of submissions, and any supporting materials the Applicant intends to rely on, by 4.00pm on 23 October 2019.

2. The Respondent is directed to file their outline of submissions, and any supporting materials the Respondent intends to rely on, by 4.00pm on 13 November 2019.

3. The Applicant is directed to file their reply submissions, and any supporting materials the Applicant intends to rely on, by 4.00pm on 20 November 2019.

The Respondent and its representative have been copied into this email for their reference.”

The Applicant’s Case

[9] On 24 October 2019, the Applicant filed his materials. It consisted of a submission (the “Applicant’s Submission”), and a one page reproduction of the Company’s Group Values statement. The Applicant’s Submission was as follows:

“Dear FWC,

I would like to pursue this matter of bullying with Super Retail Group (SRG). After I gave my order to stop bullying it was still not enough for SRG to admit that they were wrong. SRG prides itself on values as described in their group values statement. There is a certain clause in that statement; “we consider the impact of our actions” & “accept responsibility for our actions”. This is all nonsense on behalf of the company, they pride themselves on being a company that values staff but in essence treat you like a disposable commodity.

Now after I got stood down from my role, I was never compensated and was left in a financially burden. They took my position away and offered me a role in which I did not accept. I was bullied and manipulated for months on end.

SRG claims that they fixed all my queries, but this is false. I was manipulated a couple of months down the track. I had a lady from their staff wellbeing centre harass me into getting a doctor’s clearance to come into work because they thought I was unsafe to participate to work. I stated my problems in early February, this lady contacted me 4 months later querying about my health as if she cared. It is funny how SRG, failed to do their part to look after employees. It had to reach the FWC for them to understand the reality of the problem. Now they make all the employees sign on and off at the end of each working day stating if they feel good and that everything is fine. This is manipulation and I feel targeted because of this.

Another point is that SRG failed to discipline certain members such as Alice Stallard who is still covertly bullying me even though she works at another store. She has a personal agenda against me and even my manager knows about this and did not do anything about it.

Overall, I ask for SRG to compensate me not in a monetary form but in a form where they can help me excel in my role. I was never inducted not trained properly as I mentioned in my original letter. I would like a personal apology on behalf of SRG taking responsibility for their actions. And lastly, I would like the employee Alice Stallard to be disciplined and have no communication with her whatsoever.

Thankyou.”

The Company’s Case

[10] On 13 November 2019, the Company responded to the Applicant’s Submission (the “Company’s Submission”). The Company’s Submission was as follows:

“Introduction

1. On 7 April 2019, Shoebir Kaabi (Applicant) filed an Application for an Order to Stop Bullying (Application) to the Fair Work Commission (FWC). The Respondent responded to the Application on 20 May 2019 (Response).

2. The Respondents opposes the Application and submits it should be dismissed on the grounds set out in the balance of these submissions.

Background

3. The Application named individual eight Respondents of which the following four are no longer with the Respondent:

(a) Paula House;

(b) Agnes Stone;

(c) Byron Brun-Smits; and

(d) Mariam Al-Mallah.

4. Further, Mr Downs has resigned from the First Respondent and his last day of employment will be 29 November 2019.

5. Following a conference with the Commission on 10 June 2019, the Applicant was ordered to provide the orders he sought and evidence that supports those orders in this matter by 26 July 2019. On 26 July 2019 the Applicant sought certain orders (Orders) but failed to provide evidence to support those Orders. The Respondent responded to these Orders on 20 August 2019 in a letter (Letter).

6. On 2 October 2019, during a directions conference before the Fair Work Commission, the Applicant was directed to file and serve an outline of his submissions and any supporting material on which he intends to rely by 4pm, 23 October 2019. The Respondent notes that the Applicant only served his materials on 24 October 2019 without any reasonable excuse (Material).

7. The Respondent notes that most of the Applicant’s Orders have seemingly been abandoned given the content of the Material.

Events over the past months

8. The Applicant has continued to work for the Respondent for a period of seven months since his Application.

9. Importantly, the Respondents note that the Applicant has not raised any internal concerns since the Application. The Respondents have received recent feedback that the Applicant is ‘pleasant to deal with’ and has ‘improved in his performance’.

10. Further, and most critically, the Applicant has not identified in the Material any specific conduct which he alleges is currently occurring which might warrant the Commission issuing any of the Orders.

Relevant law

11. The Fair Work Act 2009 (Act) defines bullying as ‘repeated unreasonable behaviour that creates a risk to health and safety’

12. Under the Act, if the FWC is satisfied that:

(a) a worker has been bullied at work; and

(b) there is a risk that worker will continue to be bullied at work

the FWC can make an order it considers appropriate to prevent the worker from being bullied at work.

13. The FWC has broad powers as to the orders it can make in this jurisdiction however these orders are limited to a determination that the bullying conduct did in fact occur and that there is a risk of that behaviour continuing.

14. It is the FWC role to assess whether the evidence before it constitutes bullying behaviour on the cases presented by the parties, having regard to:

(a) investigations undertaken by other bodies;

(b) procedures available to the worker to resolve grievances; and

(c) other matters the FWC considers relevant.

15. The focus for the FWC in matter such as this is on ‘resolving the matter and enabling normal working relationships to resume’.

Should the Commission make orders to stop bullying?

16. As set out above, the Commission may only make orders under section 789FF if it is satisfied that the Applicant has been bullied at work and that there is a risk that he will continue to be bullied at work. The Respondents have made submissions in relation to the first of these requirements and stands firm in their submissions that the Applicant has not at any time been bullied at work.

17. The Respondents submit, however, that the Commission can elect not to make a finding in relation to whether the Applicant has been bullied at work because it cannot be satisfied on the Material that there is a risk the Applicant will continue to be bullied at work.

18. In the Materials the Applicant has identified one aspect of his claim which might, if accepted uncontested, represent ongoing conduct. This is the assertion of the Applicant that Alice Stallard is still ‘covertly bullying me’. The Applicant does not identify what this alleged conduct is, and the absence of any evidence supporting the allegation it should not be accepted. Further, the failure of the Applicant to particularise the alleged conduct means it is not possible for the Commission to make any orders to stop the alleged conduct. As is acknowledged by the Applicant, Ms Stallard works at a different store to the Applicant. Further, the Applicant has not evidenced any contact between him an (sic) Ms Stallard.

Response to Material

Alleged stand down

19. The Applicant alleges he was ‘stood down’. This is incorrect. The Applicant complained about this in his Application and the Respondent addressed it in its Response.

20. The Applicant has worked happily in role since April 2019 without complaint. There is, therefore, no risk that the Applicant will continue to be bullied in this regard.

21. Further, it is not clear what order the Applicant is seeking in relation to this matter.

Request for medical certificate

22. The Applicant alleges he was harassed into providing a medical certificate. This is not correct.

23. The Applicant in his Materials alleges that he made his issues known to the Respondent in February of this year. In February 2019 the Applicant did not make comments in relation to his mental health and in fact after his complaints were investigated the Applicant noted to Ms House that the Respondent had addressed his concerns appropriately.

24. Due to comments made in the Application the First Respondent requested that the Applicant provide a medical clearance to ensure that he was fit for duties to ensure it was meeting its obligation to ensure the Applicant was not exposed to risks in carrying out his duties.

25. This request cannot amount to bullying under the Act and was merely the First Respondent following its obligations under work health and safety legislation. In any event, the First Respondent submits that its actions in relation to the request for a medical certificate merely amount to reasonable management action.

26. Further, the Applicant has not identified any circumstances where he is currently being treated unfairly and therefore there is no risk that the Applicant will continue to bullied in this regard.

Check-in/ check-out system

27. The Applicant has raised a new complaint in the Material about the First Respondent’s check-in/check-out system. This system is used to drive safety, business performance and team communication.

28. The Applicant fails to provide evidence or a submission as to how this system is ‘manipulation’ or how he has been ‘targeted’ by this system, which in any event is denied by the Respondent. The Applicant seems to allege that the check-in/ check-out system is new. This is not correct. This system has been in place in since 2017 for all employees and this is the first instance where the Applicant has complained about this system.

29. The Applicant has not provided any information as to how a system which applies equally to thousands of Super Cheap Auto Group’s employees could amount to bullying. The First Respondent denies that this system amounts to bullying and therefore submits that no order can be made in this regard.

Excel in his role

30. The First Respondent encourages all its employees to excel in their roles. The Applicant has not identified any circumstances in which he is being treated in a manner that would amount to bullying therefore no order can be made by the Commission in this regard.

31. In any event the Applicant received training for his role when he commenced employment and receives training as and when required by the Respondent.

32. The First Respondent further submit that it would not be open for the Commission to make an order in relation to this matter as any such order would be inherently unclear and therefore almost impossible to comply with and it is not clear how such an order would address any risk of ongoing bullying (which is denied by the Respondents).

Apology

33. The Respondents do not propose to make an apology to the Applicant.

34. The Commission is only empowered to make an order if such an order is appropriate to prevent a worker from being bullied at work. The Applicant has failed to identify how an order of an apology would prevent bullying at the workplace.

Current working relationship

35. Having regard to the Revised Explanatory Memorandum6, the Applicant and the Respondent have a good working relationship and therefore there are no grounds on which the FWC can make an order to prevent bullying or prevent the risk of bullying to continue.

Section 789FF(2)(a) of the Act

36. When determining whether or not to make an order the FWC must take into account any outcome from any other investigatory body. The Respondent notes that on 15 February 2019 SafeWork NSW wrote to the Respondent after receiving a bullying complaint that included the same complaints in his Application from the Applicant. Importantly, the Respondent notes that SafeWork NSW ‘determined that it [would] not be conducting an investigation’ to the Applicant’s complaints.

Section 789FF(2)(b) and (c) of the Act

37. The Letter sets out the many ways in which employees of the Respondent can raise grievances.

38. The Response sets out the Applicant made complaints and that these were investigated by the Respondent. The result of these complaints was that many of the allegations made by the Applicant were unable to be substantiated.

39. The First Respondent notes that despite the Applicant’s bullying allegations being unsubstantiated appropriate disciplinary processes were taken where appropriate and that appropriate outcomes were delivered to those central to the Applicant’s compliant.

40. On this basis and the balance of these submissions the Respondent submits that no orders be made under s789FF.

Dismissal of the Application

41. Instead, the Respondent submits that the Application should be dismissed under s587 of the Act as the Applicant has failed to identify any specific circumstances that the FWC could identify as bullying and therefore the Respondent submits that the Application (as it now stands) is manifestly groundless.

Conclusion

42. Given the above and the length of time since the Application, the Respondent submits that:

(a) the Applicant has not been bullied at work;

(b) the Applicant has not identified any circumstances in which he is at risk of continuing to be bullied at work;

(c) the Applicant has not identified any circumstances upon which any orders in this jurisdiction can be made by the FWC,

and therefore the Application should be dismissed and no orders be made under s789FF of the Act.

FCB Workplace Law –13 November 2019

Solicitors for the Respondents” (emphasis and citations removed)

The Applicant’s Failure to Reply

[11] Pursuant to the directions issued on 2 October 2019, the Applicant was directed to provide his reply by 20 November 2019. No reply was received, and the following correspondence was sent to the Applicant seeking to elicit his reply:

(a)	28 November 2019 at 2.27pm	Dear Mr Kaabi I refer to the above matter. Chambers notes that your reply submissions were due by 4.00pm on 20 November 2019 and can confirm that no reply submissions have been filed by you. If you still wish to do so, kindly provide a copy of same to Chambers by 4.00pm 29 November 2019, together with an explanation for the delay. The matter will be shortly listed for hearing.
(b)	28 November 2019 at 5.01pm	Dear Parties Further to my email of 2.27pm today (28 November 2019), and for clarity, this matter will be determined based on the materials filed if no reply is filed by the Applicant by 4.00pm tomorrow together with an explanation for the delay.
(c)	23 December 2019 at 12.54pm	Dear Parties The Deputy President has considered the Applicant’s request for an extension to the filing of a reply, and has granted that request. The Deputy President has directed that the Applicant file his reply by 4.00pm on Tuesday, 31 December 2019. If no reply is filed by this date and time by the Applicant, the matter will be determined based on the materials filed to date before the Commission.
(d)	15 January 2020 at 12.46pm	“... I note (and I have copied the Applicant in this email) that there is an item outstanding from 19 December 2019 in this matter: The Applicant emailed chambers, copying representatives for the employer (including Mr Tindley) asking for an extension of time to file and serve reply material: ‘To whom it may concern. I initially recieved the response from kieron phelan and there was no response requested from me up until the email sent out by victor song on the 28th of November 2019. I would like to apoligize as I had misread the email about a reply from my behalf. I would like to seek an extension from the comission to provide a response.” (sic) To the Applicant: I anticipate this request will be accommodated. However, I note that due to the delay in chambers responding over the December/January period, the date for a reasonabe (sic) extension of time has already passed. You are required to file and serve any reply by close of business on Thursday 16 January 2020, together with an explanation for the delay.”

[12] At 2.49pm on Thursday 16 January 2020 the Applicant filed reply submissions (the Applicant’s Reply). I have no doubt the Respondent would make a reasonable objection to the consideration of the Applicant’s Reply, given the Applicant’s Reply was filed and served without an adequate explanation for the delay. However, as a matter of natural justice I have taken the Applicant’s Reply into consideration. I note that it does not add any new submission or supporting material to support the Application and it does not reply in a meaningful way to the Company’s Submission. The Applicant’s Reply is as follows:

“Dear FWC & FCB Group

I would like to apologize for the response in the delay. I do understand I was given a deadline by the 31^st last year. I had mistakenly misread the email and thought it was up until the 31^st of January this year.

Next, I would like to address the defendant in their application filed against me on then 13/11/19.

There are a lot of inconsistencies in your application and I would like to point them out to Mr Cross;

“Further, Mr Downs has resigned from the First Respondent and his last day of employment will be 29 November 2019.”

Mr Downs is also my store manager, he never resigned and I believe this is an error on behalf of the defendants.

The Applicant alleges he was ‘stood down’. This is incorrect. The Applicant complained about this in his Application and the Respondent addressed it in its Response4.

My contract was ending, and Miss Mallah saw a perfect opportunity to not renew my employment as a 2IC Manager. So, essentially, I was stood down in my role and was threatened to be transferred back to the store where I was mostly bullied by Byron Bruns Smith. The defendant will not take responsibility for the troubles I have put up with for example the harassment and humiliation of being stood down in your role. My income and respect had gone out the window after this all happened. I was never compensated in any shape or form. This goes back to my main order of wanting an apology from the company and all the managers that are still employed by this company. I deserve an apology to heal old wounds that have been inflicted by superiors above me.

Due to comments made in the Application the First Respondent requested that the Applicant provide a medical clearance to ensure that he was fit for duties to ensure it was meeting its obligation to ensure the Applicant was not exposed to risks in carrying out his duties.

The fact that I had made my issues clear to the company in February, nobody had checked in with me for a good couple of months up until I needed clearance and was harassed into providing a medical certificate. The mere fact that it took that long for a company to address a worker’s mental health is terrible. What if a worker took their lives shortly after making a request with the FWC? I had to take an unpaid day off work just to get a doctor’s certificate to state that I could work which is ridiculous. The company prides itself on looking after the workers, but it is all a joke. This was bullying as my manager told me that they were doing this to get back at me.

Further, as these inconsistencies have been noted. I would like to address my part of this whole experience almost a year later.

Most of the staff mentioned in this case have moved on with their lives by resigning or moving onto more promising roles. They have realised how SRG is a toxic work culture and this needs to be rectified because most of these problems stem from head office and then it goes down the food chain to area managers, store managers etc. This toxic work culture mentioned is for example the store budget. They save money by employing less people and try to maximise as much productivity out their workers which leads them to burnt out. You cannot have 3 people do a workload of 10 people. This is their expectations.

I would like a formal apology from Super Retail Group, and I am sticking by this wholeheartedly. I would like to be addressed for the harassment, mistakes and bullying caused by this company.

New faces have shown up in the company and because this is a toxic work environment, the staff always gossip about what is going on between certain stores. There are people who know about my struggles with bullying with this company and I believe information was leaked via gossiping. Rumours have been going around and these new faces are scared of me as if I am the aggressor when I was simply standing up for myself. Hence, I would like an order to stop bullying for future instances with anybody in the company because I do feel like there is a huge target on my back. I believe that after this whole case is over that they will try to terminate me using covert ways hence I would this order to prevent any future occurrences.

Lastly, SRG is not my main employer as it is my second job. I have never had any problems with my other employers in comparison to working for SRG. With that being said, the workplace has changed for the better since I made my issues clear to the company. There are certain elements of change that I have addressed above for them to clarify.

Thankyou
Shoebir Kaabi”

Consideration

[13] Section 789FF of the Act sets out the matters the Commission must be satisfied of before it has the power to make an order to stop bullying. Even where the prerequisites have been satisfied the making of an order is not required but rather it remains a discretionary decision for the Commission as to whether or not an order will be issued.

[14] Section 789 FF is set out below.

“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.”

[15] The Commission only has the jurisdiction to make an order to stop bullying where it is satisfied that a worker has been bullied at work by an individual or group, and the Commission is satisfied there is a risk that the worker will continue to be bullied at work by the individual or group.

[16] The anti-bullying jurisdiction is not designed to punish persons who have behaved unreasonably towards others in the past. Rather it is centred on stopping future bullying behaviour 1.

[17] Change in circumstances in the workplace, including the absence of alleged perpetrators 2 or a change in their roles3, are relevant when considering whether there is a risk that the worker will continue to be bullied at work and/or whether the Commission will exercise its discretion to issue an order or not. Further, positive measures an employer has put in place will be a consideration in determining whether or not orders will be made, even where there has been a finding of past bullying and there is a risk of this continuing4. As early as 26 July 2019, the Applicant recognised that the Company had “rectified most of the issues that I have mentioned” (see [4] above).

[18] The question posed by 789FF(1)(b)(ii) is, is there a risk that the worker will continue to be bullied at work by the individual or group, is to be answered objectively on the information before the Commission. The onus is on the Applicant to provide evidence or submissions that will satisfy the Commission that there is a risk that he will continue to be bullied at work. The directions to both parties required that they respectively file “outline[s] of submissions, and any supporting materials [they] intend to rely on [and, in direction 3, ‘reply submissions, and any supporting materials’]”.

[19] The Applicant provided written submissions, but no material that could constitute evidence upon which I could conclude that there is a risk he will be bullied in the future.

[20] The Applicant’s Submission has identified one aspect of his claim which might represent ongoing conduct, being the allegations that that Alice Stallard is still “covertly bullying [the Applicant]”. The Applicant does not identify or particularise the alleged conduct, and it is extremely noteworthy that Ms Stallard works at a different store to the Applicant.

[21] It is abundantly clear that significant changes in the workplace have occurred that also provide comfort to the formation of the conclusion that there is no risk the Applicant will be bullied in the future. Particularly, five of the eight Named Persons have left the employ of the Company.

[22] It is also unchallenged by the Applicant that, since the Application, he has continued to work for the Company and has not raised any internal concerns.

[23] In determining the matter I have not determined whether the Applicant has been bullied at work by an individual or a group of individuals(s.789FF(1)(b)(i)). That is because:

(a) In light of my conclusion that there is not a risk that the Applicant will continue to be bullied at work by the Named Persons in the Application, such a determination is otiose; and

(b) The material relied upon by the parties, but particularly the Applicant, does not allow for any considered determination of the issue.

[24] Whilst I do recognise the Applicant’s concerns, based on the information before the Commission I am not satisfied there is a risk the Applicant will continue to be bullied at work by the Named Persons in the Application.

[25] Therefore, even assuming that the first jurisdictional prerequisite of s.789FF(1)(b)(i), which has not been tested in this matter at all, was satisfied, the Commission still would not have jurisdiction to make an order to stop bullying. The Application must be dismissed, and I so order.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   Re McInnes, [2014] FWCFB 1440, at [9].

 2   Re Fsadni [2016] FWC 1286.

 3   Darren Lacey and Chris Kandelaars v Murrays Australia Pty Limited; Andrew Cullen[2017] FWC 3136.

 4   Ms LP [2016] FWC 763.