Sinead O’Gara
[2023] FWC 517
•6 MARCH 2023
| [2023] FWC 517 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying or sexual harassment
Sinead O’Gara
(SO2023/19)
| COMMISSIONER MCKINNON | SYDNEY, 6 MARCH 2023 |
Application for an order to stop bullying at work – no longer at work in the business – no reasonable prospects of success – application dismissed
On 13 January 2023, Ms Sinead O’Gara applied for orders to stop bullying at work under s.789FC of the Fair Work Act 2009 in relation to her employment as an Animal Health Account Manager by Esperance-based business The Trustee for KJ & LJ Forsyth Family Trust trading as South Coastal Agencies (South Coastal Agencies). There is no dispute that South Coastal Agencies is a constitutionally-covered business.
On 23 December 2022, and with effect from 23 January 2023, Ms O’Gara resigned from her employment with South Coastal Agencies.
The question is whether the application should be dismissed on the basis that it has no reasonable prospects of success, because Ms O’Gara is no longer a worker in the business of South Coastal Agencies.
Ms O’Gara presses the application on three alternate bases. Firstly, that Esperance is a small town with limited employment opportunities, and if she is to continue working in her professional field, she might return to work for South Coastal Agencies. Secondly, that she has a new casual job as a Machinery Operator on a farm that is a client of South Coastal Agencies, and if she progresses in her employment in the new business, she may undertake work that brings her into contact with the persons named as having engaged in bullying at work – being Mr Chad Hall and Mr Kyle Forsyth of South Coastal Agencies. In the meantime, Mr Hall and/or Mr Forsyth might one day attend the farm and encounter her there. Thirdly, Mr Hall and/or Mr Forsyth have continued to bully Ms O’Gara since her employment ceased, by making enquiries and comments about her to third parties in her absence, which she later found out about.
South Coastal Agencies submits that the application has no reasonable prospects of success because the employment relationship between Ms O’Gara and South Coastal Agencies will not be restored. It submits that Ms O’Gara’s role no longer exists, due to a business decision not to continue with the role of Animal Health Accounts Manager and the redistribution of her duties among other employees, including one who commenced employment on the day that Ms O’Gara resigned. It also points to Ms O’Gara having made a separate general protections application involving dismissal, in which no remedy of reinstatement was sought. It submits that the prospect of reinstatement in those circumstances is remote, although concedes that the possibility of reinstatement cannot be ruled out.
In my view, the application has no reasonable prospects of success. This is for the following reasons:
I accept that Esperance is a small town with limited employment opportunities. However, it is not enough to enliven the prospect of further work by Ms O’Gara for South Coastal Agencies that she would consider or seek out this possibility in the future. Absent an order for reinstatement (discussed further below), the potential for Ms O’Gara to once again work in the business is at the discretion of South Coastal Agencies. The facts of the matter and the circumstances in which the employment came to an end, together with the position of South Coastal Agencies in responding to the application, confirms how unlikely it is that this discretion would be exercised by South Coastal Agencies in favour of restoring a working relationship with Ms O’Gara.
The contentions in relation to the future risk of Ms O’Gara being bullied by Mr Hall and/or Mr Forsyth while she is at work in her new casual job as a Machinery Operator on a farm that is a client of South Coastal Agencies are speculative at best. They rely on the prospect of Ms O’Gara’s promotion to a new and different role after being in the job for a matter of weeks, and separately on an unplanned potential encounter in the future (and not necessarily while at work). The hearsay submission in relation to comments or enquiries being made in relation to Ms O’Gara after her employment ceased, in circumstances where the alleged comments or enquiries were neither made toward Ms O’Gara, nor apparently while she was at work, takes the matter no further.
As noted above, Ms O’Gara has separately made a general protections application involving dismissal. The application was made to the Commission on 13 February 2023. There is a long way to go before the prospect of any reinstatement to Ms O’Gara’s role might crystallise, if indeed it does. This is so whether the application is dealt with by consent arbitration in the Commission (which can only occur if both parties agree) or through the courts (which requires firstly that a certificate under s.368 be issued in relation to the matter and secondly that a general protections court application be made, heard and decided).
The one thing that can be said with certainty is that Ms O’Gara is no longer a ‘worker’ or ‘at work’ in the business of South Coastal Agencies. This is due to her resignation on one month’s notice, with effect from 23 January 2023. For this and the reasons above, there is no current or reasonably foreseeable risk of her continuing to be bullied at work by Mr Hall and/or Mr Forsyth in that business. If it is necessary to consider, there is also no reasonably foreseeable risk that Ms O’Gara will continue to be bullied by Mr Hall and/or Mr Forsyth in her current, separate employment as a casual Machinery Operator in a different business, in a different place, where the prospect of their likely interaction is not established.
The Commission can only make an order to stop bullying at work in this case if satisfied that there is a risk that Ms O’Gara will continue to be bullied at work by Mr Hall and/or Mr Forsyth. I am not satisfied that such a risk exists and nor do I consider it likely that this position will change in the reasonably foreseeable future. The application has no reasonable prospects of success.[1]
The application is dismissed under section 587(1)(c) of the Act.
COMMISSIONER
Appearances:
S Arulogun of IR Advocates on behalf of the applicant.
E Ikonomou of Employsure Law on behalf of the respondents.
Hearing details:
2023.
Sydney (by video):
March 2.
[1] Grabovsky [2021] FWC 5559; Grabovsky [2020] FWC 3164.
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