Sorensen
[2024] FWC 1123
•1 MAY 2024
| [2024] FWC 1123 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Sorensen
(AB2024/107)
| COMMISSIONER MCKINNON | SYDNEY, 1 MAY 2024 |
Application for an order to stop bullying
On 16 February 2024, Ms Samantha Sorensen applied for orders to stop bullying at work under s.789FC of the Fair Work Act 2009 (the Act). The question is whether the application has reasonable prospects of success, on the basis that it appears that Ms Sorensen is no longer “at work” in the business of Context Landscape Design Pty Ltd trading as Context (Context).
An application that has no reasonable prospects of success may be dismissed summarily under s.587 of the Act. The question arises in this case in connection with whether the Commission can be satisfied that there is a risk that Ms Sorensen will continue to be bullied at work in the business of Context by Mr Scott Jackson, the individual named in her application as having engaged in bullying behaviour toward her. No findings have yet been made about whether Ms Sorensen has been bullied at work by Mr Jackson.
The facts, as known at the time of hearing, are these:
Ms Sorensen commenced employment with Context as a Landscape Architect in or about October 2022.
Mr Jackson commenced employment with Context in or about August 2023.
Ms Sorensen alleges that she was bullied at work by Mr Jackson during the period from August 2023 to February 2024.
On an unspecified date after the alleged bullying commenced, Ms Sorensen took a period of sick leave.
On an unspecified date between 16 and 19 January 2024, Ms Sorensen contacted Hays Specialist Recruitment (Australia) Pty Ltd (Hays) through LinkedIn about work opportunities.
On 24 January 2024, Hays contacted Ms Sorensen about a Landscape Architect role with Ku‑ring‑gai Council. The role was described to Ms Sorensen as “based on a 40-hour week & 44 week year) on an “initial 12-month contract”. Ms Sorensen expressed interest in the position and provided her availability for an interview.
On 1 February 2024, Ms Sorensen interviewed for the Landscape Architect role with Ku‑ring‑gai Council.
On 7 February 2024, Ms Sorensen completed a Hays online candidate application form in connection with the Landscape Architect role at Ku‑ring‑gai Council.
On 9 February 2024, Ms Sorensen commenced receiving worker’s compensation payments for a 13-week period.
10.On 16 February 2024, Ms Sorensen made this application.
11.On 22 February 2024, Hays sent Ms Sorensen an “Assignment Letter” confirming the opportunity to work on a casual assignment as a Landscape Architect for Ku‑ring‑gai Council, commencing 11 March 2024.
12.On 23 February 2024, Ms Sorensen accepted the offer of casual employment by Hays for an assignment at Ku‑ring‑gai Council by entering into a “Terms of Engagement – PAYG – Australia” with Hays. The proposed commencement date for Ms Sorensen’s role with Ku-ring-gai Council was subsequently deferred to 18 March 2024 and then 15 April 2024.
13.On 26 February 2024, 21 March 2024 and 25 March 2024, Context wrote to Ms Sorensen about the potential termination of her employment.
14.On 26 March 2024, Ms Sorensen advised Hays that she could not commit to starting work on 15 April 2024 as she was unfit for work.
Consideration
On the facts, I cannot be certain that at this stage that the application has no reasonable prospects of success. I do hold a concern about the reliability of information provided by and on behalf of Ms Sorensen to date, on the basis that both Ms Sorensen and her representative asserted at the hearing that Ms Sorensen had not accepted alternative employment. This is plainly incorrect. Ms Sorensen accepted alternative employment with Hays on 23 February 2024. It is a serious matter to mislead the Commission, including while giving sworn evidence.
However, the evidence establishes that Ms Sorensen has not yet commenced her assignment with Ku-ring-gai Council. At the time of hearing, it was not in dispute that the employment relationship between Ms Sorensen and Context remained. Ms Sorensen says she is willing to return to work at Context as long as she feels safe to do so. Although for the reason above I do not find this statement persuasive, I cannot exclude the prospect as entirely unlikely.
In the circumstances, it is not appropriate for the application to be summarily dismissed. The matter will instead be listed for conference. Directions will issue separately.
COMMISSIONER
Appearances:
G Stevenson of Club Industrial & Related Services Pty Ltd for the Applicant.
A Goonrey of Pinsent Masons for the Respondent.
Hearing details:
2024.
Sydney (by video):
March 21.
Final written submissions:
9 April 2024.
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