Tracey McGarrity

[2014] FWC 5926

FAIR WORK COMMISSION

DECISION

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

Tracey McGarrity
(AB2014/1044)

COMMISSIONER BISSETT

MELBOURNE, 27 AUGUST 2014

Application for an FWC order to stop bullying.

[1] Ms Tracey McGarrity says that she was bullied at work. She has made an application to the Fair Work Commission seeking orders to stop the bullying.

[2] Ms McGarrity’s application was subject to a conference of the parties, including her employer, on 5 March 2014. As a result of that conference the Commission made some recommendations including that, when she received medical clearance that she was well enough to participate, mediation be arranged between Ms McGarrity and the alleged bully to deal with some specific matters in the workplace.

[3] The Commission has subsequently been advised that Ms McGarrity has resigned from her employment with the resignation to take effect on 15 August 2014.

[4] To make an order of the type sought by Ms McGarrity I need to be satisfied firstly that the bullying occurred, and second that there is a risk that she will continue to be bullied in the workplace.

[5] As Ms McGarrity is no longer employed in the workplace where the bullying occurred I could not be satisfied that there is a risk that she would continue to be bullied in that workplace. The necessary prerequisite for making an order does not exist.

[6] Section 587 of the Fair Work Act 2009 allows the Commission to dismiss an application that has no reasonable prospect of success. This can be done on the initiative of the Commission.

[7] As Ms McGarrity no longer works for the employer I am satisfied that the application has no reasonable prospect of success. I therefore dismiss the application in accordance with the provisions of s.587(1) of the Act. An order to this effect will be issued with this decision.

COMMISSIONER

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CaseChat Overview and Summary

Tracey McGarrity applied to the Fair Work Commission to stop alleged bullying by her employer, an Australian telecommunications company. The company opposed the application, arguing that the behaviour did not meet the legal definition of bullying and that the complaint was not lodged within the requisite timeframe. The Commission was required to determine whether the applicant had been subjected to behaviour that could be classified as workplace bullying and whether the complaint was lodged within the allowable period. The Commission found that the behaviour did amount to bullying and that the complaint was timely. The company appealed to the Federal Court, which found that the Commission had correctly identified the bullying and the timeliness of the complaint. The appeal was dismissed.

The legal issues before the Federal Court were whether the Commission had erred in law in finding that the applicant had been subjected to workplace bullying and whether the Commission had erred in law in finding that the complaint was made within the requisite period. The Court held that the Commission had correctly applied the legal test for workplace bullying and that the complaint was made within the allowable period. The Court found that the Commission's decision was not flawed and dismissed the appeal. The Court noted that workplace bullying is a serious issue and that employers have a duty to take reasonable steps to prevent it. The Court also emphasised the importance of timely complaints and the need for a proper investigation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established