Stephanie Gietz
[2024] FWC 701
•19 MARCH 2024
| [2024] FWC 701 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Stephanie Gietz
(AB2023/579)
| COMMISSIONER WILSON | MELBOURNE, 19 MARCH 2024 |
Application for an FWC order to stop bullying - whether application for order has no reasonable prospect of success - application dismissed pursuant to s.587.
By application lodged with the Fair Work Commission (the Commission) on 23 November 2023, Ms Stephanie Gietz (the Applicant) seeks an order to stop bullying (the application) pursuant to s.789FC of the Fair Work Act2009 (the Act). The Applicant alleges that she has been bullied at work during her employment with Miles of Smilez Pty Ltd T/A Buninyong Childcare Centre (the Respondent) by two individuals.
Procedural Background
The Applicant provided to my Chambers on 26 February 2024 a bundle of documents which included a letter of resignation dated 28 December 2023.
As a result, I caused correspondence to be emailed to the parties requesting the Applicant to confirm she had resigned her position with the Respondent and if she was no longer employed by the Respondent, inviting a notice of discontinuance. The Applicant responded confirming she had resigned her employment with the Respondent and requesting the application proceed.
I caused further correspondence to be emailed to the parties on 27 February 2024 advising that unless I was satisfied the employment relationship continues that the Commission does not have jurisdiction for the application to proceed. The correspondence again invited a notice of discontinuance from the Applicant. The Applicant responded again requesting the application proceed.
Following a short conference convened on 27 February 2024, I provided the Applicant with a further opportunity to provide any response, including any contentions that the employment relationship continues, by Wednesday 13 March 2024. The correspondence provided if Ms Gietz did not provide any response, it will be necessary for the Commission to commence a process to consider the dismissal of her application pursuant to s.587 of the Act for the reason that her application would not have a reasonable prospect of success if it continued.
The Applicant did not provide any response.
Legislation
The Act’s provisions in relation to anti-bullying are contained within Part 6-4B—Workers bullied at work, with s.789FD setting out the circumstances of when a worker is bullied at work:
“789FD When is a worker bullied at work?
(1) A worker is bullied at work if:
(a) while the worker is at work in a constitutionally-covered business:
(i) an individual; or
(ii) a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
(b) that behaviour creates a risk to health and safety.
(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.
(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:
(a) the person is:
(i) a constitutional corporation; or
(ii) the Commonwealth; or
(iii) a Commonwealth authority; or
(iv) a body corporate incorporated in a Territory; or
(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;
then the business or undertaking is a constitutionally-covered business.”
Section 789FF sets out the powers of the Commission to make orders in the event that it is satisfied there is bullying at work:
“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.”
Section 587 of the Act provides a discretion to dismiss an application if, inter alia, the application has no reasonable prospect of success. Section 587, in its entirety, provides as follows:
“587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
Consideration
In Bibawi v Stepping Stone Clubhouse Inc t/a Stepping Stone & Others,[1] the Full Bench, when dealing with a dispute as to whether an Applicant was a “worker” in an application made pursuant to s.789FC of the Act, stated:
“[17] Section 587(1)(a) of the FW Act empowers the Commission to dismiss an application where it has not been made in accordance with this Act, and s 587(1)(c) similarly empowers dismissal where an application has no reasonable prospects of success. This power may be exercised summarily - that is, an application may be dismissed pursuant to s 587(1) prior to a full hearing being conducted. Full Bench decisions such as Townsley v State of Victoria (Department of Education & Early Childhood Development) and Toma v Workforce Variable Pty Ltd have emphasised that the power to dismiss applications summarily should be exercised cautiously and sparingly, consistent with the principle stated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW):
“… the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion… the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action … is clearly demonstrated.” (references omitted)
The relevant remedy in respect of an application for an order to stop bullying is an order which the Commission considers appropriate “to prevent the worker from being bullied at work by the individual or group”.[2] The discretion to make an order to stop bullying can only be exercised if the Commission is satisfied that:
·the worker has been bullied at work by an individual or a group of individuals; and
·there is a risk that the worker will continue to be bullied at work by the individual or group of individuals.[3]
Therefore, before issuing an order under s.789FF, the Commission must be satisfied there is a risk that the worker will continue to be bullied at work. If the Commission is not satisfied there is a risk that the worker will continue to be bullied at work by the individual or group of individuals, the application must fail.
Thus, even if I was satisfied the Applicant has been bullied at work by an individual or group of individuals, I must also be satisfied there is a risk that she will continue to be bullied at work by the individual or group of individuals and that it is appropriate to make an order to prevent her from being bullied at work. Absent the existence of a risk of continued bullying at work by the individual or group of individuals, there is an absence of power to make an order.[4]
Conclusion
On the material before me, I consider the pre-requisites for the making of any orders pursuant to s.789FF(1) of the Act cannot presently be met because there is no risk that the Applicant will continue to be bullied at work. I am persuaded that the application Ms Gietz has made has no reasonable prospects of success and I am satisfied it is appropriate in the circumstances of this case to exercise my discretion pursuant to s.587(1)(c) of the Act to dismiss the Applicant’s anti-bullying application.
An order dismissing the anti-bullying application of the Applicant will be issued along with this decision.
COMMISSIONER
[1] [2019] FWCFB 1314.
[2] Fair Work Act 2009 (Cth) s.789FF.
[3] Fair Work Act 2009 (Cth) ss.789FF(1)(b)(i) and (ii).
[4] Willis v Capital Radiology Pty Ltd T/A Capital Radiology; Ms Peita Carroll; Ms Marie Gibson; Mr Dominik Kucera4
(Printed by authority of the Commonwealth Government Printer
<PR772475>
Willis) [2016] FWC 716 at [15].
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