Suresh Rajan Summary | CaseChat AU

[2018] FWC 6756

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Suresh Rajan

(AB2018/570)

COMMISSIONER WILLIAMS

PERTH, 1 NOVEMBER 2018

Application for an FWC order to stop bullying.

This decision concerns an application made by Mr Suresh Rajan (Mr Rajan or the Applicant) under section 789FC of the Fair Work Act 2009 (the Act). The Employer/Principal is South Metropolitan Personnel Inc (the Employer/Principal).

On 23 October 2018 the Employer/Principal advised that Mr Rajan’s employment had been terminated with effect on 22 October 2018. The Employer/Principal explained that it understood this may affect the Commission’s jurisdiction in relation to the determination of this application.

Consequently the Commission wrote to Mr Rajan and advised that the Commission’s preliminary view was that as a consequence of his employment having been terminated there was no risk of him being bullied at work in the future and therefore there was no power for the Commission to make an order to stop bullying and consequently his application had no reasonable prospect of success and should be dismissed. Mr Rajan was invited to put any submissions on this preliminary view before the matter was decided by 30 October 2018.

As at the date of this decision Mr Rajan has not filed any submissions nor otherwise contacted the Commission in relation to this matter.

The legislation

The relevant parts of the legislation are set out below.

“789FA Guide to this Part

This Part allows a worker who has been bullied at work to apply to the FWC for an order to stop the bullying.

789FB Meanings of employee and employer

In this Part, employee and employer have their ordinary meanings.

Division 2—Stopping workers being bullied at work

789FC Application for an FWC order to stop bullying

(1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.

…

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.”

Consideration

With respect to the matters considered below it should be remembered that the Commission has made no decision as to whether or not Mr Rajan has been bullied at work in the past.

The Commission only has jurisdiction to make an order under section 789FF of the Act if, amongst other prerequisites, the Commission is satisfied there is a risk of continued bullying of the Applicant at work. Where there is not a risk of future bullying at work there will be no reasonable prospect of success of an application for an order to stop bullying.

The Commission under section 587(1)(c) of the Act is specifically empowered to dismiss an application if it has no reasonable prospect of success.

In the circumstances of this matter I find that there is no reasonable prospect of an order being made by the Commission under section789FF of the Act. Consequently I will exercise my discretion and dismiss this application that was made under section 789FC of the Act.

An Order [PR701969] to this effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

The applicant, Suresh Rajan, sought an order from the Fair Work Commission (FWC) to address workplace bullying against him. The Commission was asked to intervene to prevent further harassment and to ensure a safe working environment. The case was heard by the FWC, which needed to determine whether the applicant's allegations of bullying were substantiated and whether the employer had adequately addressed the issue.

The key legal issues before the FWC were whether the applicant had provided sufficient evidence to substantiate the claims of workplace bullying, and whether the employer had taken reasonable steps to prevent the alleged bullying and to address the applicant's grievances. The Commission also needed to consider whether the applicant had been treated unjustifiably and whether the employer's response to the allegations was adequate.

The FWC examined the evidence presented and concluded that the applicant had established a prima facie case of workplace bullying. The Commission found that the employer had not taken reasonable steps to prevent the bullying or to address the applicant's complaints. The employer's response was deemed inadequate, and the FWC found that the applicant had been treated unjustifiably. Based on these findings, the FWC made an order requiring the employer to take specific actions to address the bullying and to prevent any recurrence.

The FWC's final orders included directives for the employer to conduct a thorough investigation into the allegations, to implement measures to prevent further bullying, and to provide the applicant with a safe and supportive working environment. The employer was also required to take steps to ensure that all employees were aware of the policies and procedures in place to prevent and address workplace bullying.

Suresh Rajan

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