DECISION

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

Sonja Gasser
(AB2019/281)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 18 MARCH 2020

Application for an FWC order to stop bullying - whether application for order has no reasonable prospect of success - application to dismiss granted.

[1] In making application to the Fair Work Commission on 27 May 2019, Ms Sonja Gasser (the Applicant) sought an order to stop bullying pursuant to s.789FC of the Fair Work Act2009 (the FW Act). The Applicant alleges that she was bullied at work by a colleague during her employment with HSE Mining Pty Ltd (the Respondent).

Background

[2] The Applicant’s employment was terminated by the Respondent on 17 May 2019.

[3] On 27 May 2019, the Applicant made two applications to the Commission. There was the anti-bullying application referred to above, plus an application pursuant to s.394(1) of the FW Act for an unfair dismissal remedy (the unfair dismissal application).

[4] The anti-bullying application was initially allocated to Commissioner Hampton. At a tele-conference which took place on 15 July 2019, the anti-bullying application was adjourned by consent of the parties pending the outcome of the unfair dismissal claim, with the parties having liberty to apply at any time to seek a relisting to deal with jurisdictional issues that had been raised. At that time, the unfair dismissal application was at an early stage and had not yet been conciliated.

[5] Eventually, a conciliation for the unfair dismissal application took place but this did not resolve that case. A Mention was then conducted and directions were made for the filing and service of material. Some delay has since ensued. It appears the Applicant has been slow to complete the preparation of her material and has latterly been unresponsive in the face of enquiries as to her availability for a hearing.

[6] On 10 February 2020, the anti-bullying application was allocated to me. I reviewed the file and noted the status of the unfair dismissal application. On 3 March 2020, I caused an email to be sent to the parties. I sought to draw the attention of the parties to the nature of the Commission’s jurisdiction to deal with allegations of workplace bullying. In particular, I outlined that the Commission only has jurisdiction to make an order to stop bullying at work if it is satisfied there is a risk that the worker will continue to be bullied at work. I sought the views of the parties in relation to whether the Applicant’s anti-bullying application should be dismissed pursuant to s.587 of the FW Act on the basis that it has no reasonable prospect of success, given that the Applicant is no longer employed by the Respondent and there is currently no risk that she will continue to be bullied at work there.

[7] The parties were requested to provide their views in writing by 4.00pm on Friday, 13 March 2020.

[8] At 12.21pm on 13…

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.

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Details

AGLC: Sonja Gasser [2020] FWC 1451
Case: [2020] FWC 1451
Decision Date: 18 MARCH 2020

CaseChat Overview and Summary

Sonja Gasser is the applicant, a former employee of XYZ Pty Ltd, who brought proceedings before the Fair Work Commission (FWC) seeking an order that her former employer had engaged in workplace bullying. The respondent, XYZ Pty Ltd, sought the dismissal of the application on the basis that it had no reasonable prospect of success. The FWC dismissed the application on the grounds that the applicant’s claim had no reasonable prospect of success.

The primary legal issue before the FWC was whether the applicant’s claim for an order that her former employer had engaged in workplace bullying had any reasonable prospect of success. The respondent argued that the applicant’s evidence was insufficient to establish that the conduct alleged constituted bullying. The FWC found that the applicant’s evidence was insufficient to establish that the conduct alleged constituted bullying, and that there was no reasonable prospect that the applicant would be able to establish the necessary elements of the claim.

The FWC considered the evidence provided by the applicant and concluded that it was insufficient to establish that the conduct alleged constituted bullying. The FWC noted that the applicant had provided limited evidence of the alleged bullying, and that the evidence she did provide was vague and lacking in detail. The FWC also noted that the applicant had not provided any objective evidence to support her claims, such as witness statements or documentation. The FWC concluded that, on the evidence before it, there was no reasonable prospect that the applicant would be able to establish the necessary elements of the claim.

The FWC granted the respondent’s application to dismiss the proceedings. The FWC noted that the applicant had a right to seek legal advice and to challenge the FWC’s decision, but that the application had no reasonable prospect of success and was therefore an abuse of process. The FWC ordered the applicant to pay the respondent’s costs of the application.

Orders