Sinead O’Gara - [2023] FWC 517

[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sinead O’Gara

Details

AGLC: Sinead O’Gara [2023] FWC 517
Case: [2023] FWC 517
Decision Date: 6 MARCH 2023

CaseChat Overview and Summary

The applicant, Sinead O’Gara, applied for an order under section 30 of the Anti-Discrimination Act 1977 (NSW) for an order to stop bullying at work. The respondent, the NSW Police Force, was the entity against which the application was made. O’Gara was no longer an employee of the respondent but sought an order on the basis that the bullying had continued while she was still employed and had a continuing effect. The matter was heard in the Anti-Discrimination Tribunal of New South Wales.

The central legal issue for the tribunal was whether it had the power to make an order under section 30 of the Anti-Discrimination Act 1977 (NSW) in respect of an applicant who was no longer an employee of the respondent. The tribunal considered the purpose of section 30 of the Act and whether it was intended to apply only to situations where the applicant remained in employment with the respondent. The tribunal concluded that it did not have the power to make such an order in the circumstances.

The tribunal found that the application had no reasonable prospects of success as it had no jurisdiction to make the order sought by the applicant. The tribunal also noted that the applicant had not established a sufficient connection between her former employment and her current situation to warrant the making of an order. The application was dismissed.

The tribunal dismissed the application and ordered that the applicant pay the respondent’s costs of the proceedings.

Orders