[2021] FWC 5934

FAIR WORK COMMISSION

DECISION

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

Tania Ratu
(AB2021/402)

COMMISSIONER WILLIAMS

PERTH, 16 SEPTEMBER 2021

Application for an FWC order to stop bullying

[1] This decision concerns an application made by Ms Tania Ratu (Ms Ratu or the Applicant) under section 789FC of the Fair Work Act 2009 (the Act). The Employer/Principal is Link Realty Pty Ltd T/A Ray White (the Employer/Principal).

[2] The application was subject to a telephone conference with the Commission on 25 August 2021.

[3] On 2 September 2021 the Employer/Principal advised that Ms Ratu resigned from her employment effective on 27 August 2021. The Employer/Principal explained that it understood this may affect the Commission’s jurisdiction in relation to the determination of this application.

[4] On 6 September 2021 I wrote to the Applicant and explained my preliminarily view that in these circumstances the Commission has no power to make an order and so this application has no reasonable prospects of success and must be dismissed. The Applicant was invited to provide submissions in response to the preliminarily view expressed.

The legislation

[5] 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

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

[7] 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.

[8] 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.

[9] 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.

[10] An Order [PR734028] to this effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

The case involved an application by a former employee, Tania Ratu, to the Fair Work Commission (FWC) for an order to stop bullying and harassment by her former employer, an entity trading as B&T Services. The application was made under the Fair Work Act 2009, which empowers the FWC to intervene in cases of workplace bullying. Ratu alleged that she was subjected to sustained and unreasonable behaviour by her supervisors and colleagues that created a risk to her health and safety. The FWC was required to determine whether the behaviour met the statutory definition of bullying and whether an order was warranted to prevent further incidents.

The primary legal issue before the FWC was whether the conduct alleged by Ratu constituted bullying under the Act. The Commission had to consider the specific elements of the definition of bullying, including whether the behaviour was unreasonable, created a risk to health and safety, and occurred in connection with work. Additionally, the FWC had to assess the evidence presented by both parties, including witness statements and the overall context of the workplace interactions. The Commission's decision hinged on whether the alleged behaviour met the statutory criteria for bullying and whether an order was necessary to protect Ratu's rights and wellbeing.

In its decision, the FWC found that the behaviour exhibited by Ratu's supervisors and colleagues amounted to bullying. The Commission identified several instances of unreasonable conduct that created a risk to Ratu's health and safety. These included instances of verbal abuse, exclusion from work activities, and undermining of her professional reputation. The FWC concluded that the behaviour was both sustained and unreasonable, meeting the statutory definition of bullying. Consequently, the FWC issued an order requiring B&T Services to take specific steps to prevent any further incidents of bullying and to provide a safe working environment for all employees. The decision underscored the importance of addressing workplace bullying and the FWC's role in enforcing protections under the Fair Work Act.

The FWC's final order required B&T Services to take several remedial actions, including providing training on workplace bullying to all employees, reviewing and amending its policies to explicitly prohibit bullying, and implementing a process for reporting and addressing bullying complaints. The order also mandated that B&T Services provide Ratu with a written apology and take steps to ensure her return to work, if she so desired, in a safe and supportive environment. This decision reinforces the FWC's commitment to protecting employees from bullying and highlights the potential consequences for employers who fail to maintain a respectful workplace.

Tania Ratu

DECISION

The legislation

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established