Yong Ma

[2017] FWC 3002

[2017] FWC 3002

FAIR WORK COMMISSION

DECISION

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

Yong Ma
(AB2017/149)

COMMISSIONER CRIBB MELBOURNE, 22 JUNE 2017

Application for an FWC order to stop bullying.

[1] Mr Ma has made an application for an order to stop bullying under section 789FC of the Fair Work Act 2009 (the Act).

[2] On 8 May 2017, the parties participated in a conference in the Commission. However, there was no agreement reached in relation to the issues raised by Mr Ma. Mr Ma elected to proceed to hearing to have the matter determined. The Employer (WEX Australia Pty Ltd) (WEX Australia, the company) had notified of a jurisdictional objection on 23 March 2017. As the company’s objection needed to be determined prior to the Commission dealing with the substantive application, a timeline for the filing of material by the parties, in relation to the objection, was agreed. The hearing was set down for 10 July 2017.

[3] Subsequently, on 18 May 2017, the company informed the Commission that Mr Ma’s employment had been terminated that day. It was WEX Australia’s view that Mr Ma’s application should be dismissed on the grounds that Mr Ma was no longer a ‘worker’ with the company and so was no longer at work where the alleged bullying had occurred.

[4] The Commission then wrote to Mr Ma, on 19 May 2017, indicating that advice had been received from the company that he had been dismissed. The Commission went on to explain that, if that was correct, it was the preliminary view of the Commission that the Commission could no longer deal with his application. This was because an order cannot be made when the employee is no longer at risk of being bullied because they are no longer in the workplace. Mr Ma was requested to advise the Commission if he wished to challenge the Commission’s preliminary view. No response was received from Mr Ma nor to a follow up email to him on 29 May 2017.

[5] Accordingly, I will now formally deal with the company’s request that the Commission exercise its discretion, under section 587(1)(c) of the Act, to dismiss Mr Ma’s application on the basis that it has no reasonable prospects of success.

Legislative framework

[6] Section 789FF(1) of the Act relevantly provides:

“(1) If:

(a) a worker has made an application under section 789FC; and

(b) the FWC is satisfied that:

(i) the worker has been bullied at work by an individual or a group of individuals; and

(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;

then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.”

[7] If there is no risk that a worker will continue to be bullied “at work by the individual or group”, then one of the pre-requisites in section 789FF of the Act for the Commission to be able to make an order to stop bullying will not be satisfied. 1

Conclusion

[8] In light of Mr Ma’s employment with the company being terminated, there is no risk that Mr Ma will continue to be bullied at work by any person, or group of persons. It therefore follows that one of the prerequisites in section 789FF of the Act, for the Commission to be able to make an order to stop bullying, cannot be satisfied in this case. In these circumstances, I am satisfied that it is appropriate to exercise my discretion, pursuant to section 587(1)(c) of the Act, to dismiss the application on the basis that it has no reasonable prospects of success.

[9] This application is dismissed. An order 2 giving effect to this decision will be issued separately.

 1   Atkinson v Killarney Properties Pty Ltd T/A Perm-A-Pleat Schoolwear and Adrian Palm [2015] FWCFB 6503 at [21]

 2   PR593395

Printed by authority of the Commonwealth Government Printer

<Price code A, PR593394>