Theodoros Constantinou v Australian Federal Police

[2022] FWC 395

[2022] FWC 395

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Theodoros Constantinou
v

Australian Federal Police and another

(AB2021/585)

DEPUTY PRESIDENT COLMAN MELBOURNE, 24 FEBRUARY 2022

Anti-bullying application – application dismissed ex tempore under s 587(1)(c)

1. Mr Theodoros Constantinou made an application for an anti-bullying order under s 789FC of the Fair Work Act 2009 (Act), in which he contended that he had been subjected to bullying by his employer, the Australian Federal Police (AFP), and his team leader.

1. On 22 February 2022, I wrote to the parties and advised them that I had formed the preliminary view that Mr Constantinou’s application had no reasonable prospects of success and should be dismissed because it appeared that he had ceased to be employed by the AFP. It had come to my attention that Mr Constantinou had lodged an application under s 365 of the Act, alleging that the AFP had dismissed him for a proscribed reason in contravention of Part 3-1 of the Act. I explained that one prerequisite for the making of an anti-bullying order was the Commission’s satisfaction that there was a ‘risk that the worker will continue to be bullied at work’ (s 789FF(1)(b)(i)), and that if Mr Constantinou’s employment with the AFP had ended, there would be no such risk. I advised the parties that they should be prepared to discuss these matters at a telephone hearing on 24 February 2022.

1. At the telephone hearing, Mr Constantinou confirmed that his employment with the AFP had ended, and that he was not undertaking work for the AFP in any other capacity. I explained that Mr Constantinou did not appear to be at risk of bullying, that the application appeared to have no reasonable prospect of success, and that the application could be dismissed under s 587. I asked Mr Constantinou whether he wished to contend that his application should not be dismissed, to which he replied that he did not. I then delivered an ex tempore decision, an edited version of which is as follows.

1. Section 587(1)(c) provides that the Commission may dismiss an application that has ‘no reasonable prospects of success’. It may do so on its own initiative (s 587(3)). Mr Constantinou’s anti-bullying application has no reasonable prospects of success, because he is no longer an employee of the AFP and is not performing work for the AFP in any other capacity. Section 789FF(1)(b)(i) states that the Commission may make an order to prevent a worker being bullied at work if it is satisfied of two matters: first, that the worker has been bullied at work, and secondly that there is a risk that the worker will continue to be bullied at work. Even if I were to be satisfied that the first requirement was satisfied, there is no reasonable prospect that I could be satisfied of the second. Mr Constantinou is no longer an employee of the AFP, nor is he a contractor or any other species of ‘worker’ engaged by the AFP. There is no basis upon which I could be satisfied that ‘there is a risk that the worker will continue to be bullied at work’. No order under s 789FF could properly be made.

1. The Commission’s discretion to dismiss the application under s 587(1)(c) was enlivened. I decided to exercise this discretion because it was fair and reasonable to do so. For these reasons, I dismissed Mr Constantinou’s anti-bullying application.

DEPUTY PRESIDENT

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