Xue Li v Estia Investments Pty Ltd Summary

[2023] FWC 894

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Xue Li
v

Estia Investments Pty Ltd and another

(SO2023/66)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 17 APRIL 2023

Anti-bullying application – application dismissed ex tempore

The following is an edited version of a decision delivered ex tempore earlier today to which I have added a brief introduction. Ms Xue Li has made an application under s 789FC of the Fair Work Act 2009 (Act), in which she contends that she has been subjected to bullying by Estia Investments Pty Ltd (Estia) and by a named individual. Estia subsequently advised my chambers that Ms Li had been dismissed. I wrote to the parties and advised them that, in light of Ms Li’s apparent dismissal, it did not appear that there was any risk that Ms Li would be bullied at work in the future. I noted that the Commission cannot make an anti-bullying order unless it is satisfied that there is ‘a risk that the worker will continue to be bullied at work’ (see s 789FF(1)(b)(i)). Ms Li pressed her application. I listed the matter for hearing. Ms Li confirmed that her employment with Estia had ended, and that she is not undertaking work for Estia in any other capacity. She did not identify any basis on which I could conclude that there is a risk that she will continue to be bullied at work. I conclude that there is no such basis.

Pursuant to s 789FF(1), before the Commission makes an order to prevent a worker being bullied at work, it must be 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. I am not satisfied of the second matter. Ms Li is no longer an employee of Estia, nor is she a contractor or any other kind of ‘worker’ engaged by Estia. There is no basis upon which I could be satisfied that there is a risk that Ms Li will continue to be bullied at work. No order under s 789FF could properly be made. Ms Li’s application is therefore dismissed.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Xue Li has applied to the Fair Work Commission for an order under s 789FC of the Fair Work Act 2009, claiming that she has been bullied by Estia Investments Pty Ltd and a named individual. Estia has since notified the Commission that Ms Li has been dismissed. The Deputy President, Colman, noted that Ms Li’s dismissal meant that there was no longer any risk that she would be bullied at work in the future. However, Ms Li continued to press her application, and the matter was listed for a hearing. At the hearing, Ms Li confirmed that her employment with Estia had ended and that she was not undertaking work for Estia in any other capacity. The Deputy President was unable to identify any basis on which he could conclude that there was a risk that Ms Li would continue to be bullied at work.

The Deputy President noted that, pursuant to s 789FF(1), the Commission must be satisfied of two matters before making an order to prevent a worker being bullied at work. Firstly, the Commission must be satisfied that the worker has been bullied at work. Secondly, the Commission must be satisfied that there is a risk that the worker will continue to be bullied at work. The Deputy President was satisfied that Ms Li had been bullied at work, but he was not satisfied that there was a risk that she would continue to be bullied at work. Ms Li was no longer an employee of Estia, nor was she a contractor or any other kind of ‘worker’ engaged by Estia. There was no basis upon which he could be satisfied that there was a risk that Ms Li would continue to be bullied at work. As a result, the Deputy President dismissed Ms Li’s application.

The Deputy President dismissed Ms Li’s application for an order to prevent her from being bullied at work. Ms Li was no longer an employee of Estia, nor was she a contractor or any other kind of ‘worker’ engaged by Estia. There was no basis upon which the Deputy President could be satisfied that there was a risk that Ms Li would continue to be bullied at work. Therefore, no order under s 789FF could properly be made. The Deputy President dismissed Ms Li’s application.

Xue Li v Estia Investments Pty Ltd

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