Yingying Chao
[2024] FWC 2361
•3 SEPTEMBER 2024
| [2024] FWC 2361 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Yingying Chao
(AB2024/448)
| COMMISSIONER CRAWFORD | SYDNEY, 3 SEPTEMBER 2024 |
Application for order to stop bullying – s.587 dismissal application by employer – no risk that worker will continue being bullied due to medical restrictions – application for orders to stop bullying dismissed.
Background
On 14 June 2024, Yingying Chao filed an application for an order to stop bullying with the Fair Work Commission (Commission) pursuant to s.789FC of the Fair Work Act 2009 (FW Act). Ms Chao is employed by NDC Service Co Pty Ltd which trades as National Dental Care (NDC). Ms Chao alleges she has been bullied by the Practice Manager at NDC’s Ashfield clinic, Nicole Chen.
Ms Chao’s application was not resolved during conciliation. I issued directions for the filing of material and listed the application for hearing on 20 September 2024.
On 19 August 2024, NDC filed an application for Ms Chao’s application to be dismissed pursuant to s.587(1)(c) of the FW Act. The basis for the application was that Ms Chao’s application has no reasonable prospects of success because she cannot establish that there is a risk that she will continue to be bullied at work, given Ms Chao is not currently working and has no plans to return to work in the foreseeable future. NDC’s position is that because of this, s.789FF(1)(b)(ii) cannot be satisfied and the Commission does not have jurisdiction to make the orders sought by Ms Chao.
I listed NDC’s dismissal application for Mention/Directions on 22 August 2024. During that proceeding, NDC agreed that it would review the material filed by Ms Chao in support of her substantive application, which was due to be filed on 23 August 2024, and then confirm whether it wished to press the dismissal application.
Ms Chao filed material in support of her substantive application on 23 August 2024.
On 26 August 2024, NDC confirmed that it wished to press its dismissal application because Ms Chao had filed a medical certificate which states that she is “not to return to old employer.”
I listed NDC’s dismissal application for hearing via video on 2 September 2024.
Ms Chao represented herself at the hearing with assistance from her husband, Liang Huang. Ms Chao was assisted by a Mandarin interpreter during the hearing. NDC was represented by Aaron Trott (Chief Human Resources Officer). NDC had previously sought permission to be legally represented at the hearing, and this was opposed by Ms Chao. NDC withdrew this request after I expressed a provisional view that permission would not be granted to NDC. Ms Chen represented herself during the hearing but did not provide evidence or submissions.
Material relied upon
I marked the following documents as evidence during the hearing:
1.A certificate of capacity for Ms Chao provided by Dr Yu Gao on 2 August 2024. The certificate states Ms Chao has capacity to work eight hours per day for two days per week from 12 July 2024 to 30 August 2024. The certificate also states Ms Chao is “Not to return to old employer.” I marked the certificate Exhibit A1.
2.A certificate of capacity for Ms Chao provided by Dr Gao on 30 August 2024. The certificate states Ms Chao has capacity to work eight hours per day for two days per week from 30 August 2024 to 27 September 2024. The certificate also states that Ms Chao is “Not to communicate or work with Nicole Chen (manager).” I marked the certificate Exhibit A2.
3.A copy of an email from Ms Chao to Rigan Wong where Ms Chao provides contact details for Stephanie Gioiello (HR Business Partner) so her return-to-work process can be discussed. I marked the email Exhibit A3.
Neither party indicated there was any additional evidence I needed to consider in determining NDC’s dismissal application.
Mr Trott made oral submissions in support of NDC’s dismissal application during the hearing. Mr Huang and Ms Chao made submissions in opposition to NDC’s dismissal application.
Statutory provisions and authorities
NDC’s dismissal application is made pursuant to s.587 of the FW Act which states:
“Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
a)the application is not made in accordance with this Act; or
b)the application is frivolous or vexatious; or
c)the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 - 2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:
a)is frivolous or vexatious; or
b)has no reasonable prospects of success.
(3) The FWC may dismiss an application:
a)on its own initiative; or
b)on application.”
The power to dismiss a substantive application should only be exercised cautiously and sparingly because it results in the complete extinguishment of an applicant’s right to have their application heard and determined according to the law before they have had their ‘day in court’ (per John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925 at [31]).
Consideration
After considering the evidence and submissions, I have decided to dismiss Ms Chao’s application for an order to stop bullying. Even if Ms Chao succeeds in establishing that she has been bullied by Ms Chen, I am not satisfied that there is currently a risk that Ms Chao will continue being bullied by Ms Chen. Ms Chao’s most recent certificate of capacity expressly states that Ms Chao is not to communicate or work with Ms Chen. That means NDC will either accommodate this restriction by providing Ms Chao with suitable duties that do not involve her communicating or working with Ms Chen, or alternatively, Ms Chao will not resume working because NDC is unable to provide suitable duties. Under either scenario, there will be no risk of Ms Chao being bullied by Ms Chen.
I am satisfied that Ms Chao’s application has no reasonable prospects of success because the effect of the medical evidence she has provided means she is unable to establish there is a risk that she will continue being bullied by Ms Chen. That means the requirement in s.789FF(1)(b)(ii) of the FW Act cannot be satisfied and the jurisdiction to make a stop bullying order is not enlivened. I also consider it is appropriate to exercise my discretion to dismiss the application. After considering the medical evidence before me, I do not consider there is any merit in the parties spending further time and resources on a case that is doomed to fail, due to the Commission’s lack of jurisdiction to make the orders currently being sought by Ms Chao.
As I indicated during the hearing, a new application can be made by Ms Chao in the future if the medical advice changes and it becomes possible that Ms Chao will be at risk of being bullied by Ms Chen. The dismissal of this application does not preclude a further application being made if the circumstances have changed. Ms Chao’s allegations of past bullying can be relied upon in support of a new application.[1]
I dismiss Ms Chao’s application for an order to stop bullying.
COMMISSIONER
Appearances
Ms Chao representing herself with support from Mr Huang.
Mr Trott for NDC.
Interlocutory hearing:
2024.
Sydney (by video via Microsoft Teams).
2 September.
[1] Dr Pushpa Ravi v Baker IDI Heart and Diabetes Institute Holdings Limited T/A Baker IDI Heart and Diabetes Institute; Dr Anne Reutens [2014] FWC 7507 at [14].
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