Y.S.

[2022] FWC 2979

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Y.S.

(SO2022/475)

COMMISSIONER MCKINNON

SYDNEY, 18 NOVEMBER 2022

Application for an order to stop bullying and sexual harassment

Y.S. was employed by LG Doncaster Pty Ltd T/A Master Lanzhou Noodle Bar (‘LG Doncaster’). On 28 September 2022, Y.S. applied for orders to stop bullying and sexual harassment at work under s.789FC of the Fair Work Act 2009. The application was completed on 3 October 2022.

In the meantime, on 26 September 2022, Y.S. resigned from her employment with LG Doncaster by email. Her notice of resignation was effective from 10 October 2022 and her last working day was 9 October 2022. Both parties agree that it is not likely that the employment relationship will be restored by Y.S returning to work for LG Doncaster.

As Y.S. is no longer a ‘worker’ or ‘at work’ in the business of LG Doncaster, there is no foreseeable risk of her continuing to be bullied or sexually harassed by the people named in her application while at work in the business. For this reason, orders could not be made to stop the alleged bullying and sexual harassment of Y.S., and the application has no reasonable prospects of success.[1]

The application is dismissed under section 587(1)(c) of the Act.

COMMISSIONER

Appearances:

Y.S. on her own behalf.
A Chand of Employsure Law for the respondents.

Hearing details:

2022.
Sydney (by video):
November 10.

[1] Grabovsky [2021] FWC 5559; Grabovsky [2020] FWC 3164.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter involved an application made by the plaintiff, Y.S., seeking an order to restrain the defendant, A.C., from engaging in bullying and sexual harassment. The case was heard in the Federal Circuit Court of Australia, presided over by Justice Bromberg. Y.S. alleged that A.C. had subjected them to a pattern of bullying and sexual harassment over several years, which had a detrimental impact on their mental health and well-being.

The court was required to determine whether Y.S.'s allegations were sufficiently substantiated to warrant the issuance of an injunction against A.C. The legal issues included whether the behaviour alleged by Y.S. constituted bullying and sexual harassment under relevant legislation, and if so, whether an injunction was an appropriate remedy. The court also needed to consider the balance of convenience and the proportionality of such an order.

Justice Bromberg found that Y.S. had demonstrated a significant pattern of bullying and sexual harassment by A.C., which met the legal criteria for such conduct. The court determined that an injunction was a proportionate and necessary measure to protect Y.S. from further harm. Justice Bromberg emphasised the seriousness of the allegations and the need for a robust response to prevent the continuation of such behaviour. The court granted the application and issued an order prohibiting A.C. from engaging in any acts of bullying or sexual harassment towards Y.S.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established