Walker v University of Western Sydney

[2015] FWC 2733

[2015] FWC 2733

FAIR WORK COMMISSION

DECISION

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

Walker
v
University Of Western Sydney and Ors
(AB2014/136)

VICE PRESIDENT CATANZARITI SYDNEY, 22 APRIL 2015

Application for an FWC order to stop bullying - Applicant no longer working with Respondents - no risk of continued bullying at work - application for order to stop bullying dismissed on the basis of no reasonable prospect of success.

[1] On 9 October 2014, Ms Estelle Nerida Walker (the Applicant) made an application to the Fair Work Commission (the Commission) for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the Act) against the University Of Western Sydney (UWS) and two named individuals (the Respondents).

[2] On 26 February 2015, UWS made an application pursuant to s.587(3) of the Act to have the matter dismissed on the basis that the Applicant’s employment with UWS had ceased on 9 February 2015 on the ground of redundancy. UWS contends that in circumstances where there is no continued risk of bullying to the Applicant, the Commission does not have the power to make an order to stop bullying and, as a consequence, the Application has no reasonable prospects of success and should be dismissed.

[3] The parties were given an opportunity to make written submissions on this issue. I have read and considered both parties submissions.

[4] Where an application is made under s.789FC of the Act, the Commission has the discretion under s.789FF of the Act to make any order it considers appropriate (other than an order requiring the payment of a pecuniary amount) to prevent the worker from being bullied at work. However, the Commission can only exercise that discretion where it is satisfied that:

(i) the worker has been bullied at work; and

(ii) there is a risk that the worker will continue to be bullied at work.

[5] In the recent decision of Obatoki v Malee Track Health Community Services and Ors[2015] FWCFB 1661, the Full Bench of the Commission made the following findings:

“[20] The broad discretion of the Commission to make different types of orders was illustrated in Applicant v Respondent PR54885 1....

[21] However, we note that the power to make such orders will only be enlivened once the two limbs of s.789FF(1) have been satisfied, that is, that the worker making the application has been bullied at work by an individual or group of individuals: and that there is a risk that the same worker will be continued to be bullied at work by the individual or group. Given that the second limb was not satisfied in this matter, the Deputy President did not have the power to make any of the types of orders contemplated by s.789FF.”

[6] I find that this application cannot succeed in circumstances where the second of the two jurisdictional prerequisites of s.789FF(1) cannot be met. There is no evidence before the Commission indicating that there is a continued risk that the Applicant will be bullied at work now that she has ceased to be employed by UWS and ceased working at its premises. It necessarily follows that no order pursuant to s.789FF(1) can be made and the application has no reasonable prospects of success.

[7] The matter is dismissed.

VICE PRESIDENT

 1   (21 March 2014)

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