Tara Briggs v Kelsey Pettersen, G8 Education Ltd T/A Kindy Patch West Ipswich - [2021] FWC 6650

[2021] FWC 6650

FAIR WORK COMMISSION

DECISION

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

Tara Briggs
v
Kelsey Pettersen, G8 Education Ltd T/A Kindy Patch West Ipswich
(AB2021/542)

COMMISSIONER HUNT

BRISBANE, 21 DECEMBER 2021

Application for an FWC order to stop bullying

[1] On 27 September 2021, Ms Tara Briggs (Ms Briggs) made an application pursuant to s.789FC of the Fair Work Act 2009 (the Act) to the Fair Work Commission (the Commission) for an order to stop bullying. At the time of making the application, Ms Briggs was a casual employee of G8 Education Ltd T/A Kindy Patch West Ipswich (G8) having commenced on 20 July 2021.

[2] Ms Briggs sought orders against Ms Kelsey Pettersen, Centre Manager. Ms Briggs now contends that she has been dismissed from her employment with G8.

Proceedings before the Commission

[3] On 27 September 2021, in her Form F72 ‘Application for an order to stop bullying’, Ms Briggs made a number of allegations against Ms Pettersen and G8.

[4] On 20 October 2021, G8 lodged a Form F73 ‘Response from an employer/principal to an application for an order to stop bullying’. At question 1.1 of the F73, G8 answered “yes” to the question “Is the Applicant still employed or engaged at the place where the alleged bullying took place?” G8’s response to Ms Briggs’ allegations is “All actions taken in relation to Ms Briggs and her employment have been carried out in a reasonable manner following G8 Policy and procedure.”

[5] On 22 October 2021, this matter was allocated to me. On 25 October 2021, I issued directions to the parties requiring them to attend a telephone conference before me on 1 November 2021. The conference proceeded on 1 November 2021. Ms Briggs was assured she would be offered available casual shifts as they arose, alternatively within one other casual employee named Brittany.

[6] Later, on 1 November 2021, following the conference, I issued directions requiring:

A. Ms Briggs to file submissions and evidence by no later than 4:00pm AEST Monday, 15 November 2021;

B. G8 and Ms Pettersen to file submissions and evidence by no later than 4:00PM AEST Monday, 29 November 2021;

C. Ms Briggs to file any material in reply by no later than 4:00PM AEST Monday, 6 December 2021; and

D. Listing the matter for hearing, by video, at 10:00AM AEST Wednesday, 15 December 2021.

[7] On 3 November 2021, Ms Briggs copied my Chambers in an email she sent to the Department of Education (Qld) (the Department) in response to a letter she had received from the Department on 1 November 2021 advising her of the outcome of a complaint she had earlier made to the Department. In Ms Briggs’ email she sought that the Department review the outcome of the complaint she had made.

[8] Ms Briggs did not lodge any submission or witness statement by 15 November 2021, as required by the Directions I issued on 1 November 2021. On 16 November 2021, my Associate sent correspondence to the parties, informing Ms Briggs if she did not file her material by 17 November 2021, I would consider listing the matter for a non-compliance hearing and vacating the hearing date.

[9] Later, on 16 November 2021, Ms Briggs wrote to my Chambers requesting a one week extension as she had a serious illness in her family. The extension request was granted.

Section 372 general protections application made

[10] On 18 November 2021, Ms Briggs lodged a separate Form F8C ‘General protections application not involving dismissal’ pursuant to s.372 of the Act against G8, alleging a breach of the general protections within the Act. Ms Briggs alleged that her shifts had been reduced to nil due to her having made a complaint to the Department.

[11] On 23 November 2021, Ms Briggs sent the following email to my Chambers:

“After putting a complaint forward to G8 head office about this matter, the Centre Manager then began excluding me and acting in an unprofessional manner.

After lodging my anti bullying form my shifts were cut from 5 shifts per week to 1 shift a week and then 0 shifts per week.

After a conversation with Chambers Hunt (sic) the centre said I would be next on the call list to work. However, Brittany has since been working and I have nit (sic) been contacted once to work as an adverse reaction. A form 8C Was then lodged due to this. I also havr (sic) not been included to the staff party.”

[12] Later, on 23 November 2021, my Associate sent the following email to the parties, further to the above email from Ms Briggs:

“Chambers confirms receipt of the email below from the Applicant. Chambers reminds the parties that all correspondence must be copied to the other side.

The Applicant was afforded an extension of time to file her material by 4pm today. The Commissioner advises that she does not consider that the Applicant has so far met her obligations under the direction. The Commissioner requires a signed witness statement from the Applicant, in numbered paragraphs, as per the directions that were issued on 1 November 2021.

The Commissioner advises that if the Applicant’s material is not received by 4pm today, it is likely to mean that the timeframe currently in place will not be able to be accommodated, and any hearing of the application will need to occur in January 2022. The Applicant is directed to comply with the directions.”

[13] On 29 November 2021, my Associate wrote to the parties as follows:

“Reference is made to the above matter and the below correspondence. This email does not relate to the separate F8C application made by the Applicant on 18 November 2021 pursuant to s.372 of the Fair Work Act 2009, which has been given the file number C2021/7828.

Further to the Commission’s previous email on 23 November 2021, the Applicant has not lodged her witness statement(s) and outline of submissions.

The Hearing of this matter listed on Tuesday, 21 December 2021 is vacated and will no longer proceed on that date.

This application remains live before the Commission.

The Applicant is at liberty to file her materials as directed by the Commissioner at [1] of the amended directions. Following receipt of the Applicant’s materials to the Commissioner’s satisfaction, further programming of the application, with a future hearing date will be advised.

The hearing date will not be before 10 January 2022.

If the Applicant files material in December 2021, consideration will need to be given to the holiday period in allowing the Person Named and the Employer Party to prepare witness statements and make submissions. The Applicant will then be afforded an opportunity to put reply material on before the matter is then listed for a hearing before the Commissioner.

[14] On 30 November 2021, G8 lodged a Form F8A ‘Response to general protections application’, in response to Ms Briggs’ Form F8C. G8 relevantly contended that:

“The Employer/principal refutes the Applicant’s claim of her shifts being cut following the lodgement of an Anti-Bullying application. The Employer/principal confirms the Applicant has not been offered shifts as a casual employee as there has been no requirement for additional coverage for ratio at her skill and qualification level.

The Employer/principal confirms the Applicant remains employed at this time on a casual basis.”

Ms Briggs asserts she has been dismissed

[15] On 30 November 2021, Ms Briggs emailed my chambers relevantly stating:

“If there was no work for someone of my skill and level, are you able to explain why Brittany has been getting plenty of shifts since the last conference with Chambers Hunt (sic) where Kelsey stated that she would be happy to keep a log of who she called for shifts first between Brittany and I because she told Chambers Hunt (sic) that I was first on the list, however I have not recieved (sic) any calls and Brittany has been working ever since then.

I have since emailed Kelsey and have not recieved (sic) a reply. Due to this I can only assume I have been dismissed.”

[16] On 1 December 2021, my Associate wrote to the parties advising that I had listed the s.372 application for a telephone conference on 7 December 2021. In this email, the following was conveyed to Ms Briggs:

“The Commissioner advises that, if the Applicant is of the view that she has been dismissed:

a. The anti-bullying application currently before the Commission would need to be withdrawn by the Applicant as there would be no utility in pursuing the application if orders cannot be made as the Applicant will not be at work;

b. The Applicant appears not to meet the minimum employment period to bring an unfair dismissal application; and

c. The Applicant is advised there is a 21 day time limit in which to bring a s.365 application, general protections claim involving dismissal.

If, after considering the above matters the Applicant does not consider that she has been dismissed, it would be appreciated if the Applicant advise her position in advance of the telephone conference.”

[17] Later, on 1 December 2021, Ms Briggs responded:

“The date of any last correspondence was 16th of December 2021, that is the date I am going by.”

[18] Ms Briggs also included screenshots of the following correspondence:

• 16 November 2021 email from Ms Briggs to Ms Pettersen

“Good morning Kelsey, just wondering why you told Chambers Hunt that I would be called first if you needed a casual to work but yesterday and a few other days, Brittany has worked.

Also, I haven’t received an invitation to the staff Christmas party yet. Just wondering if there is a reason for that.”

• 16 November 2021 email from Ms Pettersen to Ms Briggs

“Good Afternoon Tara,

If you wish to discuss further please give me a call at the centre up to 4pm today or from 9.30-5.30pm tomorrow.”

• 16 November 2021 email from Ms Briggs to Ms Pettersen

“I would prefer all correspondence by email please”

[19] On 2 December 2021, my Associate wrote to Ms Briggs, copying in G8 and Ms Pettersen, enquiring:

“Dear Ms Briggs

Reference is made to the above matter and your correspondence below and attached.

The Commissioner inquires:

- Do you believe you have been dismissed?

- If so, do you believe you were dismissed on 16 November 2021?

If you consider you have been dismissed, and if you consider it was on 16 November 2021, you would have up until and including 7 December 2021 to bring a s.365 application if you wished to do so.

If you consider you have been dismissed, do you wish to withdraw your anti-bullying application?

The Commissioner confirms the s.372 telephone conference will proceed on 7 December 2021 at 3:00PM (AEST).”

[20] Ms Briggs responded later, on 2 December 2021 as follows:

“Yes, as of this date I never recieved (sic) a response from Kelsey Pettersen and so assume that I have been dismissed as of this date.

In which case I believe I should have filled out the form 8.”

[21] On 7 December 2021, my Associate attempted twice to contact Ms Briggs for the scheduled telephone conference, however, she did not answer the phone calls. My Associate left a voicemail each time advising that the Commission had attempted to contact her for the conference in the s.372 matter. My Associate later wrote to the parties advising:

“Chambers attempted to contact the Applicant today at 3:03PM and 3:05PM (AEST) to dial her in for the Conference listed today at 3:00PM (AEST). The Conference date and time were confirmed in the emails below on 1 and 2 December 2021, and by Notice of Listing on 1 December 2021.

The Conference was unable to proceed due to non-appearance of the Applicant.

The Applicant has alleged that she was dismissed on 16 November 2021 and believes she should have completed and lodged a Form 8 application pursuant to s.365 of the Fair Work Act 2009. If she wishes to lodge such an application within the required 21 day time frame, today is her last day to do so. The Commissioner notes that the Applicant has referred to the form being a Form 8, and therefore it is available to her to complete the form today if she wishes to.

If the Applicant does bring an application pursuant to s.365 claiming she was dismissed on 16 November 2021, and if this is contested by the Respondent, the Commission will need to determine if there has been a dismissal. A certificate cannot be issued unless the Commission is satisfied the person bringing the s.365 application has been dismissed.

The Commissioner invites the Respondent to advise: does the Respondent agree to participate in a rescheduled conference in this matter?

The Commissioner asks the Applicant to advise: does the Applicant wish to withdraw her Anti-bullying application, noting that she now alleges she has been dismissed?”

[22] Later, on 7 December 2021, Ms Briggs responded as follows, attaching a copy of a medical certificate of Dr Balreddy Angiti advising Ms Briggs would be unfit for work on 7 December 2021 due to a medical condition:

“I did try to call back straight away sorry, I will do the form 8 today.”

[23] Later, on 7 December 2021, my Associate sent the following correspondence to the parties:

“The Commissioner advises that she is disappointed you did not contact chambers prior to the 3:00pm scheduled conference to advise of your inability to participate in the conference today. She considers your conduct in not notifying your inability to participate to be inconsiderate of the Commission and of the Respondent who had agreed to participate in the conference when it was not obliged to do so.

You have been repeatedly asked if you wish to withdraw your anti-bullying application AB2021/542 if you are of the view that your employment has been terminated. Please advise if you wish to withdraw your anti-bullying application.

In the event you do make a s.365 application, alleging that you have been dismissed from your employment, the Commissioner advises that it is her preliminary view that on that basis she would dismiss your anti-bullying application if you choose not to withdraw your application first. Please consider the Commissioner’s recent decision in Knowles v Inghams & Ors [2021] FWC 6373:

are asked to advise if you wish to participate in a further conference regarding your s.372 application. If you do wish to have a reconvened conference, the Commissioner will inquire of the Respondent if it is interested in participating in the conference. The conference can only be convened if the Respondent agrees.”

[24] Later, on 7 December 2021, Ms Briggs then responded:

“I only got to the doctor at 2.30pm unfortunately.

No I do not wish to withdraw the anti bullying.

I am getting together all the information that I have already sent through and putting it into paragraphs as asked.”

[25] Lastly, on 7 December 2021, G8 confirmed it was willing to participate in a rescheduled conference in the s.372 matter.

[26] On 10 December 2021, my Associate emailed the parties advising that I had listed both the s.372 matter and the anti-bullying application for a conference on 14 December 2021, and advising as follows:

“The Commissioner notes that the Respondent has indicated that it is willing to participate in a rescheduled s.372 Conference.

Chambers has conducted searches to ascertain whether the Applicant has lodged a Form F8 application pursuant to s.365 of the Fair Work Commission 2009.

There does not appear to be any record of Ms Briggs having lodged a Form F8 application.

The Commissioner will call the above matters on for a further conference on Tuesday, 14 December 2021 at 2:00PM (AEST).

As the listing involves both matters, it is expected that Kelsey Pettersen will attend.

A notice of listing has been issued.”

[27] On 14 December 2021, my Associate attempted to contact Ms Briggs for the conference. Ms Briggs did not answer her phone despite five attempts to call her. I briefly addressed the Employer and Ms Pettersen, advising that my Chambers would issue correspondence in due course. I asked the Respondent whether it had offered any shifts to Ms Briggs. The Respondent advised that it had not and the other relevant employee, Brittany, had been made a permanent part-time employee.

[28] Later, on 14 December 2021, my Associate sent the following correspondence to the parties:

“The Commissioner advises that a conference has now been held today in application C2021/7828. The conference proceed(sic) in the Applicant’s absence as she did not answer the Commission’s five attempts to contact her. The Commissioner notes this was the second conference scheduled in this matter, with the Applicant also not attending the conference listed on 7 December 2021. The Commission’s involvement in application C2021/7828 is ended.

The Commissioner notes that the Applicant believes she has been dismissed from her employment with the Respondent. Accordingly, the Commissioner proposes to issue a decision dismissing the anti-bullying application AB2021/542.

In the attached email on 7 December 2021, the Commissioner advised the Applicant that if she believes she has been dismissed, the Commissioner will dismiss the anti-bullying application if the Applicant chooses not to withdraw her application first. Consider the Commissioner’s recent decision in Knowles v Inghams & Ors [2021] FWC 6373: Applicant has until 4:00PM (AEST) Thursday, 16 December 2021 to provide any views on the proposed course of action to dismiss application AB2021/542. Alternatively, it is open to Ms Briggs to discontinue AB2021/542 at any time by writing to chambers advising that she wishes to discontinue the application.

[29] Ms Briggs has not provided any response to the above correspondence. The last correspondence from Ms Briggs was on 7 December 2021.

Relevant legislation

[30] A worker who reasonably believes that he or she has been bullied at work may apply to the Commission for an order to stop bullying. Section 789FC of the Act provides:

“789FC Application for an FWC order to stop bullying or sexual harassment

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

(2) For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force.

Note: Broadly, for the purposes of the Work Health and Safety Act 2011, a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.

(3) The application must be accompanied by any fee prescribed by the regulations.

(4) The regulations may prescribe:

(a) a fee for making an application to the FWC under this section; and

(b) a method for indexing the fee; and

[31] Section 789FD of the Act sets out when a worker has been bullied at work, as below:

“789FD When is a worker bullied at work or sexually harassed 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.

(2A) A worker is sexually harassed at work if, while the worker is at work in a constitutionally‑covered business, one or more individuals sexually harasses the worker.

(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.”

[32] The circumstances in which the Commission may make orders to stop bullying are set out in s.789FF of the Act, as produced below:

“789FF FWC may make orders to stop bullying or sexual harassment

(1) If:

(a) a worker has made an application under section 789FC; and

(b) either or both of the following apply:

(i) the FWC is satisfied that the worker has been bullied at work by an individual or a group of individuals, and the FWC is satisfied that there is a risk that the worker will continue to be bullied at work by the individual or group;

(ii) the FWC is satisfied that the worker has been sexually harassed at work by one or more individuals, and the FWC is satisfied that there is a risk that the worker will continue to be sexually harassed at work by the individual or individuals;

then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to:

(d) if subparagraph (b)(ii) applies—prevent the worker from being sexually harassed at work by the individual or individuals; or

(e) if subparagraphs (b)(i) and (ii) apply:

(i) prevent the worker from being bullied at work by the individual or group; and

(ii) prevent the worker from being sexually harassed at work by the individual or individuals.

(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

[33] Pursuant to ss.789FF(1)(b)(i) of the Act, for the Commission to make orders with respect to an application under section 789FC for an order to stop bullying, it must be satisfied that the worker was bullied at work and that there is a risk that the worker will continue to be bullied at work.

[34] The leading authority on the application of s.789FF(1)(b) in analogous cases is Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines. 1 In that case Gostencnik DP held that:

“[15] As s. 789FF(b) makes clear, I must be satisfied not only that Mr Shaw has been bullied at work by an individual or group of individuals but also that there is a risk that he will continue to be bullied at work by that individual or group of individuals. Therein lays the difficulty for Mr Shaw. It seems to me that I have no power to make an order to stop bullying unless I can be satisfied relevantly that there is a risk that at work Mr Shaw will continue to be bullied by the individual or group of individuals identified in his application.

[16] It is clear that Mr Shaw is no longer employed by ANZ. The employment relationship has ended. That Mr Shaw is taking steps to seek a remedy in relation to his dismissal and that that may result in reinstatement at some point in the future does not have a bearing on the question that I must answer and is speculative and uncertain. It seems to me clear that there cannot be a risk that Mr Shaw will continue to be bullied at work by an individual or group of individuals identified in his application because Mr Shaw is no longer employed by ANZ and therefore is no longer at work.

[17] It necessarily follows that I do not have power to make an order to stop bullying and, as a consequence, I am satisfied that Mr Shaw’s application has no reasonable prospect of success.”

[35] This position was subsequently affirmed by the Full Bench in Obatoki v Mallee Track Health & Community Services and Others. 2

[36] Ms Briggs has corresponded with the Commission on multiple occasions advising that she considers that she has been dismissed from her employment with G8. She stated that she considers her dismissal to have taken effect on 16 November 2021 and has repeatedly stated her willingness to complete a Form F8, General Protections Application Involving Dismissal, nominating 16 November 2021 as the date she was dismissed. It is noted that G8 considers Ms Briggs to be a casual employee and still employed, however it is noted she has not worked for several weeks.

[37] For the Commission to make orders under s.789FF of the Act, it is required that there is a risk that the worker will continue to be bullied ‘at work’. Ms Briggs has, in my view, made definitive statements to the Commission that she does not consider that she will ever be at work with G8 due to what she considers to be the cessation of her employment on 16 November 2021.

[38] Having regard to Ms Briggs’ determination that she considers she has been dismissed, I am satisfied that there is no present risk that Ms Briggs will continue to be bullied at work, as required for an order to be made. That is so because Ms Briggs will not be at work. Accordingly, the requirements of s.789FF(1)(b)(i) cannot be satisfied.

[39] It is not necessary to determine if Ms Briggs was bullied at work in the past.

[40] Section 587(1) of the Act provides:

“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

[41] Ms Briggs’ unwavering assertion that she has been dismissed by G8 on 16 November 2021 is entirely incongruent with her having any reasonable prospects of success in the immediate application for an order to stop bullying.

[42] In considering all of the circumstances, having satisfied myself that there is no risk of Ms Briggs being bullied at work pursuant to s.789FF(1)(b)(i) of the Act, I am also satisfied that as a result, the application has no reasonable prospects of success and it is appropriate in all of the circumstances to dismiss the application.

[43] I note that, in the event that Ms Briggs no longer contends that she was dismissed, and if she is offered shifts by G8 and attends those shifts, it is certainly open to Ms Briggs to make another application pursuant to s.789FC of the Act if she continues to seek orders from the Commission to stop bullying.

[44] Accordingly, the application is dismissed under s.587(1)(c) of the Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 [2014] FWC 3408.

2 [2015] FWCFB 1661 at [16].