1
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Mr Richard Bassanese
(AB2014/1444)
COMMISSIONER HAMPTON ADELAIDE, 5 JUNE 2015
Application for an FWC order to stop bullying - applicant worker dismissed prior to lodging
anti-bullying application - unfair dismissal application lodged - found unfair but not
reinstated - whether applicant must be a worker when anti-bullying application made -
whether absence of future risk means that application should be dismissed - no future risk and
no reasonable basis to suggest future risk of bullying of applicant at the relevant workplace -
no reasonable prospects of an order being made given the requirements of the Act - no
reasonable prospects of success - nature of potential referral to WHS regulator considered -
anti-bullying application dismissed.
1. Background and case outline
[1] On 1 October 2014, Mr Bassanese (the applicant) made an application for an order to
stop bullying under s.789FC of the Fair Work Act 2009 (the Act). I will for convenience
describe this as the AB application. The AB application alleges bullying conduct by his
former Manager and others in a workplace which is conducted by his ex-employer, HPS
Transport Pty Ltd (HPS Transport).
[2] The AB application contained a collection of documents to support the applicant’s
case. One of the documents was a termination letter from the employer dated 29 September
2014 and this advised that Mr Bassanese’s position was made redundant as of that date.
[3] At the same time as lodging the AB application, Mr Bassanese also lodged an unfair
dismissal application under s.394 of the Act. The AB application was, with the consent of the
parties, held in abeyance until the unfair dismissal matter was determined.
[4] The unfair dismissal matter was assigned to another Member of the Commission and
on 20 February 2015, Deputy President Bartel found that Mr Bassanese’s dismissal was unfair
within the meaning of the Act.1 In so finding, the Deputy President concluded that
Mr Bassanese’s position no longer existed but that it was not a “genuine redundancy” as
defined by the Act due to the absence of the required consultation. The Deputy President also
determined that Mr Bassanese’s injury may have been a factor in the decision to make him
redundant at that time2 and that “re-employment” was not an appropriate remedy.3 In a later
decision, and having heard further from the parties, the Deputy President awarded
compensation to Mr Bassanese on 18 March 2015.4
[2015] FWC 3515
DECISION
AUSTRALIA FairWork Commission
[2015] FWC 3515
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[5] Following the determination of the unfair dismissal matter, the AB application was
listed for further preliminary proceedings by telephone on 26 March 2015. All parties
participated in the conference. The potential consequences of the applicant’s dismissal and the
absence of an order reinstating the employment relationship were canvassed with the parties
in general terms.
[6] HPS Transport requested that the application be dismissed given that Mr Bassanese is
no longer in the workplace.
[7] Mr Bassanese confirmed that he wished to proceed with the AB application.
[8] Following the conference, to assist the parties, and Mr Bassanese in particular, the
Commission identified that the following issues potentially arose from the circumstances of
this matter:
A. Whether or not Mr Bassanese was entitled to bring this application under
section 789FC of the Act, that is if Mr Bassanese was dismissed prior to bringing the
application, was he a worker for the purposes of s789FC(1) of the Act?
B. If Mr Bassanese is not a worker who is at risk of bullying in the workplace concerned,
is there any power to make orders pursuant to s.789FF of the Act?
C. Depending on the answers to A and B, should the anti-bullying application be
dismissed?
D. In the event that the anti-bullying application is dismissed, given the issues raised in
the application, should the Commission refer the circumstances to the relevant WHS
regulator for investigation?
[9] The above issues were provided to the parties with a summary of the relevant
circumstances leading to those issues. The Commission also provided an opportunity for the
parties to confirm the relevant facts of the matter and to make submissions on the various
issues. Further, reference was made to various single Member decisions of the Commission
touching upon the issues and to a recent Full Bench decision in Obatoki v Mallee Track
Health and Community Services and Others5 (Obatoki).
[10] The parties were then relevantly directed as follows:
1. HPS Transport Pty Ltd is by Friday 10 April 2015 to file in the FWC and provide
to Mr Bassanese, written submissions in relation to the jurisdictional issues raised
and its request for this anti-bullying application to be dismissed.
2. Mr Bassanese is by Monday 20 April 2015 to file in the FWC and provide to HPS
Transport Pty Ltd written submissions regarding the jurisdictional issues and his
position that the anti-bullying application now be heard.
3. If HPS Transport Pty Ltd seeks to make any final response submissions, it is to file
any such submissions in the FWC and provide them to Mr Bassanese by
Friday 24 April 2015.
...
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5. In the absence of a request from a party seeking to provide evidence directly
relevant to the preliminary jurisdictional point, the Commission will determine the
matter based upon the written submissions provided by the parties.
[11] HPS Transport provided a response to the Directions and submitted that:
As Mr Bassanese’s employment ceased on 29 September 2014 and he lodged his
AB application on 1 October 2014, the applicant was not a worker, as defined
under s.789FF, at the time of lodging the AB application;
Even if the Commission is satisfied that the applicant had been bullied under
s.789FD of the Act, the Commission can only make an order if it is satisfied that
there is a risk of the bullying will continue (s.789FF(1)(b)(ii));
As Mr Bassanese is no longer in an employment relationship with the employer,
there cannot be a risk that the bullying will continue because he is no longer at
work;
Therefore, the requirements of s.789FF(1) cannot be met and the application should
be dismissed; and
The Commission does not have power to make any order including a referral to a
WHS regulator.
[12] On 24 April 2015, Commission staff contacted Mr Bassanese in relation to the matter
and this discussion was confirmed in correspondence sent on 6 May 2015. The Commission
advised Mr Bassanese in writing that due to an oversight by the employer, the documents
were not provided to Mr Bassanese by the due date and a copy was sent via post to him by the
Commission on 20 April 2015. Given the delay in Mr Bassanese receiving the documents, he
was granted an extension to file his materials. He was also advised that should the
Commission not receive any submissions from him by 15 May 2015, the jurisdictional issues
would be determined based upon the materials already before it.
[13] I understand that during the course of the conversation on 24 April 2015 and at other
times, Mr Bassanese verbally confirmed that he wanted the Commission to hear his AB
application on the merits, including his unfair dismissal and treatment, and the injury said to
be caused to him. This was consistent with the position advanced by Mr Bassanese during the
directions conference on 26 March 2015.
[14] On 8 May 2015, Commission staff again contacted Mr Bassanese to confirm his
awareness of the matter and he advised that he was aware of the directions and the employer’s
submissions, and would shortly send a letter in relation to the jurisdictional matters.
[15] On 27 May 2015, the Commission received a package of material from Mr Bassanese.
Despite its late provision, I took the view that I should have regard to that material to the
extent that it was relevant to the preliminary issues. The material provided by Mr Bassanese
included more details of what he described as the bullying and harassment he suffered whilst
employed at HPS Transport and the damage that this conduct has allegedly caused. Those
allegations include the notion that he had been dealt with unfairly because he raised various
complaints. Mr Bassanese also confirmed his strong desire that his concerns with his
treatment be dealt with by the Commission and seeks, in effect, that the AB application be
heard on its merits.
[2015] FWC 3515
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[16] HPS was given the opportunity to respond to Mr Bassanese’s submissions and it
contends that they do not address the issues identified by the Commission and maintains that
the AB application should be dismissed.
[17] There is a dispute about whether there was relevant bullying conduct, however, I do
not need to determine that for present purposes. There is no dispute about the fact of the
dismissal or other factual elements that directly bear upon the immediate issues. In these
circumstances, and given that both parties provided submissions and were given an
opportunity to seek a hearing on the immediate issues if appropriate, it is not necessary to
conduct a formal hearing in relation to those matters. It is however, appropriate that I now
determine the request from the employer that the AB application be dismissed based upon the
relevant material that is before the Commission.
[18] I have dealt with this matter on the facts that are apparent from the AB application and
the surrounding circumstances outlined above. These are relevantly that:
The applicant was given notice of dismissal by HPS Transport on 29 September
2014 and the notice was effective on that day;
The applicant filed the AB application on 1 October 2014; and
The applicant lodged an unfair dismissal application and his dismissal was found to
be unfair and the remedy determined by a Member of the Commission resulted in
the applicant being awarded compensation without an order for reinstatement being
made.6
[19] I also note that there is no evidence, or even a suggestion, that Mr Bassanese would be
back in the workplace conducted by HPS Transport as a worker.
2. The employer’s request that the AB application be dismissed
2.1 The contentions
[20] The employer’s position is essentially that the AB application should be dismissed on
the basis that:
Mr Bassanese was not, at the time of bringing the application, a worker and was
therefore not eligible to bring the s.789FC application (not a worker at the time of
application); and
There is no risk of bullying in the future because the applicant is no longer in the
workplace (no future risk).
[21] I will canvass each of these propositions however it is necessary to recognise the
statutory context when considering these matters.
2.2 The statutory context
[22] Section 789FC of the Act provides as follows:
“789FC Application for an FWC order to stop bullying
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(1) A worker who reasonably believes that he or she has been bullied at work may
apply to the FWC for an order under section 789FF.
(2) For the purposes of this Part, worker has the same meaning as in the Work
Health and Safety Act 2011, but does not include a member of the Defence
Force.
Note: Broadly, for the purposes of the Work Health and Safety Act 2011, a
worker is an individual who performs work in any capacity, including as
an employee, a contractor, a subcontractor, an outworker, an apprentice,
a trainee, a student gaining work experience or a volunteer.
(3) The application must be accompanied by any fee prescribed by the regulations.
(4) The regulations may prescribe:
(a) a fee for making an application to the FWC under this section; and
(b) a method for indexing the fee; and
(c) the circumstances in which all or part of the fee may be waived or
refunded.”
[23] Section 789FD of the Act defines bullying conduct as follows:
“789FD When is a worker bullied at work?
(1) A worker is bullied at work if:
(a) while the worker is at work in a constitutionally-covered business:
(i) an individual; or
(ii) a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of
workers of which the worker is a member; and
(b) that behaviour creates a risk to health and safety.
(2) To avoid doubt, subsection (1) does not apply to reasonable management action
carried out in a reasonable manner.
(3) If a person conducts a business or undertaking (within the meaning of the Work
Health and Safety Act 2011) and either:
(a) the person is:
(i) a constitutional corporation; or
(ii) the Commonwealth; or
(iii) a Commonwealth authority; or
(iv) a body corporate incorporated in a Territory; or
(b) the business or undertaking is conducted principally in a Territory or
Commonwealth place;
then the business or undertaking is a constitutionally-covered business.”
[2015] FWC 3515
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[24] The capacity of the Commission to make orders is set out in s.789FF of the Act as
follows:
“789FF FWC may make orders to stop bullying
(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.
(2) In considering the terms of an order, the FWC must take into account:
(a) if the FWC is aware of any final or interim outcomes arising out of an
investigation into the matter that is being, or has been, undertaken by
another person or body—those outcomes; and
(b) if the FWC is aware of any procedure available to the worker to resolve
grievances or disputes—that procedure; and
(c) if the FWC is aware of any final or interim outcomes arising out of any
procedure available to the worker to resolve grievances or disputes—
those outcomes; and
(d) any matters that the FWC considers relevant.”
2.3 Do the employer’s contentions provide a basis to dismiss the AB application?
2.3.1 Not a worker at the time of application
[25] There is no suggestion that the applicant was not a worker within the meaning of the
Act at the time of his employment or dismissal. Indeed, he was an employee engaged by a
corporation conducting a business. However, by the time of lodging the AB application, he
was no longer a worker engaged by HPS Transport.
[26] The prerequisites to lodge an AB application are in part established by s.789FC(1) of
the Act as set out above. There would be little doubt that an applicant would need to be a
worker, at that time and in the relevant workplace, when the alleged bullying conduct has
taken place. This is evident from the express requirement that the bullying conduct take place
whilst the worker is at work (s.789FD(1)(a)). There would also be little doubt that the
applicant must be a worker at the time that they form the reasonable belief that they have been
the subject of bullying behaviour.
[27] However, any requirement that an applicant in an anti-bullying matter be a worker at
the time of lodging the AB application would arise by implication not from the express terms
[2015] FWC 3515
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of the Act. That is, s.789FD does not expressly require that the applicant be a worker at the
time of making the application and the reasonable belief about being bullied in s.789FD(1) is
written in the past tense. However, the contention that an applicant must be a worker at the
time of lodgement is certainly arguable given the basis of the jurisdiction, the preventative
focus of the anti-bullying provisions of the Act, and the requirement (discussed below) that
there be a future risk of bullying as a prerequisite to the making of any orders. It is also the
case that this issue, as a discrete point, is also unlikely to arise in the normal course given the
condition precedent for making any order in this jurisdiction.
[28] However, whilst the “not a worker at the time” issue was relied upon by the employer,
little was put by HPS Transport to support the proposition. Mr Bassanese has not engaged
with that issue and given my findings below, it is not necessary that I determine this issue. In
these circumstances, I do not consider that it is appropriate to conclusively deal with this
aspect as part of this matter. Ideally, this would be determined by the Commission on the
basis of proper argument.
2.3.2 No further risk
[29] To make an order in this jurisdiction, the Commission must be satisfied that there has
been relevant bullying conduct. Further, the Commission must be satisfied that there is a risk
of further bullying of the applicant at work by the individual(s) whose conduct has led to a
finding of bullying conduct. This arises from s.789FF(1)(b)(i) and (ii) of the Act.
[30] There is no dispute that an application has been made under s.789FC of the Act. The
question as to whether the Commission is satisfied that bullying has occurred has not yet been
determined. However, as Mr Bassanese is no longer in the workplace due to his earlier
termination, the question is whether there is a basis which might indicate a continuing risk
that he will be bullied at the relevant workplace. In G.C.7, I referred to a leading case and
made the following observations in relation to a risk of further bullying and the capacity of
the Commission to make an order in such circumstances:
“[165] In Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A
ANZ Bank and Another (Shaw v ANZ), Gostencnik DP was dealing with an anti-
bullying application where an applicant, Ms Shaw, had been dismissed by the
employer. The Deputy President found as follows:
“[15] As s. 789FF(b) makes clear, I must be satisfied not only that Mr Shaw has
been bullied at work by an individual or group of individuals but also that there
is a risk that he will continue to be bullied at work by that individual or group
of individuals. Therein lays the difficulty for Mr Shaw. It seems to me that I
have no power to make an order to stop bullying unless I can be satisfied
relevantly that there is a risk that at work Mr Shaw will continue to be bullied
by the individual or group of individuals identified in his application.
[16] It is clear that Mr Shaw is no longer employed by ANZ. The employment
relationship has ended. That Mr Shaw is taking steps to seek a remedy in
relation to his dismissal and that that may result in reinstatement at some point
in the future does not have a bearing on the question that I must answer and is
speculative and uncertain. It seems to me clear that there cannot be a risk that
Mr Shaw will continue to be bullied at work by an individual or group of
[2015] FWC 3515
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individuals identified in his application because Mr Shaw is no longer
employed by ANZ and therefore is no longer at work.
[17] It necessarily follows that I do not have power to make an order to stop
bullying and, as a consequence, I am satisfied that Mr Shaw’s application has
no reasonable prospect of success.”
[166] With respect, I agree with the Deputy President that the import of
s.789FF(1)(b)(ii) is that for an order to be made, the Commission must be satisfied that
there is a risk that the (applicant) worker will continue to be bullied at work by the
individual or group (found to have bullied the applicant). For my part, where an
applicant will no longer be at work with the relevant individual or group, and there is
no reasonable prospect of that occurring in some capacity as a worker in the
future, in almost all cases it will not be possible for an applicant to demonstrate the
future risk requirement. This requires a consideration of the particular circumstances
of the parties including the potential to return to the workplace in some capacity as a
worker.
[167] In this case, there is no suggestion that continuing risk of bullying at work will
relevantly arise in the absence of an ongoing employment relationship between the
parties. That is, there is no basis, in the absence of a continuing employment
relationship between the parties, for the applicant to be in the relevant workplace as a
worker. As I am not satisfied that there is any such future risk, even if I had concluded
that bullying behaviour had occurred within the statutory meaning, there is no basis
under the Act to issue any orders arising from this particular application.”
[31] In Obatoki the Full Bench was dealing with an application where the applicant worker
was no longer in the relevant employment relationship and the anti-bullying application had
been dismissed by the Commission. The Full Bench concluded as follows:
“[16] We consider that the Deputy President correctly held that there were no
reasonable prospects that the application could succeed. The Commission could not be
satisfied that the second of the two jurisdictional prerequisites of s.789FF(1) could be
met. There was no evidence before the Commission indicating that there would be a
risk that the Appellant would continue to be bullied at work once he ceased to be
engaged by Mallee Track and ceased working at its premises or providing services for
it. It necessarily follows that no order pursuant to s.789FF(1) could be made and the
application had no reasonable prospects of success.”
[32] It is clear from the circumstances of this matter, that there is presently no risk that
Mr Bassanese will be bullied at work by the individual or group of individuals named in the
application, given the fact that he had been dismissed prior to bringing the AB application and
is no longer at work in the relevant workplace. In most cases, as I outlined in G.C. above, it
would, however, be prudent to also consider whether there is any reasonable prospect of a
relevant risk arising in the future.
[33] Given that Mr Bassanese’s unfair dismissal application did not lead to his
reinstatement and there is no suggestion that he will be involved as a worker in his former
workplace, there is no relevant risk of further bullying conduct being directed to
Mr Bassanese in that workplace.
[2015] FWC 3515
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[34] Section 789FE allows the Commission to dismiss an application under certain
circumstances.8 Those circumstances are not relevant here, however the Commission also has
the power to dismiss an application under s.587 which provides as follows:
“587 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.”
[35] The application of “no reasonable prospect of success” has been discussed in similar
circumstances in Shaw v ANZ.9 The Deputy President said (footnotes omitted):
“[8] Section 587 of the Act provides a discretion to dismiss an application if, inter alia,
the application has no reasonable prospect of success. Let me first deal with the
meaning and application of the phrase, "has no reasonable prospect of success".
Without traversing in any great detail the authorities that have considered the proper
application and meaning of the phrase, "no reasonable prospect of success," it is
sufficient for me for present purposes to make the following observations. A
conclusion that an application has no reasonable prospect of success should only be
reached with extreme caution and in circumstances, for example, where an application
is manifestly untenable or is groundless or is so lacking in merit or substance as to be
not reasonably arguable. But these examples do not provide an exhaustive description
of when a particular application has no reasonable prospect of success.
[9] Secondly, I am mindful of that which the majority (Hayne, Crennan, Kiefel and
Bell JJ) of the High Court of Australia in Spencer v The Commonwealth of Australia
had to say when their Honours considered the meaning of the phrase, "no reasonable
prospect," in the context of s. 31A of the Federal Court of Australia Act 1976. In that
case their Honours said the following:
In many cases where a plaintiff has no reasonable prospect of prosecuting a
proceeding, the proceeding could be described with or without the additional
intensifying epitaphs like "clearly", "manifestly" or "obviously" as
"frivolous"," untenable", "groundless" or "faulty" but none of these expressions
alone or in combination should be understood as providing a sufficient chart of
the metes and bounds of the powers given by section 31A nor can the content
of the word "reasonable" in the phrase, "no reasonable prospect" be
sufficiently, let alone completely illuminated by drawing some contrast with
what would be a frivolous, untenable, groundless or faulty claim.
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Rather, full weight must be given to the expression as a whole. The Federal
Court may exercise power under section 31A if, and only if, satisfied that there
is no reasonable prospect of success. Of course it may readily be accepted that
the power to dismiss an action summarily is not to be exercised lightly but the
elucidation of what amounts to no reasonable prospect can best proceed in the
same way as content has been given through a succession of decided cases to
other generally expressed statutory phrases such as "just and equitable" when it
is used to identify the ground for winding up of a company. At this point in the
development of the understanding of the expression and its application, it is
sufficient but important to emphasise that the evident legislative power as
revealed by the text of the provision would be defeated if its application is read
as confined to cases of a kind which fell within the earlier different procedural
regimes.
[10] In Spencer the High Court was saying that one should not make the mistake of
only concluding that a proceeding has no reasonable prospect of success if it is
frivolous, untenable, groundless or faulty and that full expression should be given to
that phrase. It seems to me that the observations in Spencer are apt to apply to the
construction and application of the phrase "has no reasonable prospect of success" as it
appears in s. 587 of the Act.
[11] Thirdly, I would also observe that the answer to the question whether a particular
application has no reasonable prospect of success in the context of s. 587 may differ
depending on the time at which the question is asked. This, it seems to me, is evident
from the word "has". So it is that an application at its inception may have some
reasonable prospect of success but, as circumstances change during the course of
dealing with an application, those changed circumstances might have the result that an
application which once had some reasonable prospect of success no longer has a
reasonable prospect of success.”
[36] As would be clear from the earlier discussion, in the case of a finding that there is no
risk of future bullying in a matter such as this, the issue concerns the Commission’s capacity
to make an order in the AB application. This is directly relevant to the prospects of success
for the application but does not by itself go to the jurisdiction to hear the substantive
application. Section 587(1) is also written in discretionary terms in that the Commission
“may” dismiss the relevant application.
[37] Accordingly, the power to dismiss an application on that basis is discretionary but
should be exercised in appropriate cases. The Full Bench in Obatoki has confirmed that the
exercise of that discretion is appropriate in the proper circumstances. In this case, the related
unfair dismissal application has not led to reinstatement and no basis upon which a further
relevant risk of bullying conduct might arise has been suggested or is evident from the
circumstances.
[38] In terms of the potential to make a referral to a relevant WHS regulator, HPS
Transport referred in submissions to the Full Bench in Obatoki which indicated as follows:
“[18] Regarding the oral submissions made by the parties in respect of the
Commission's power conferred by s.789FF(1) to make orders including those
containing recommendations and referrals, for the avoidance of doubt, we note that
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s.789FF(1) confers upon the Commission a wide discretion in relation to the types of
orders it can make ("any order it considers appropriate"). It is not simply stop bullying
orders that can be made by the Commission but also orders which have a rational
connection to the jurisdiction. The only prohibition on the types of orders that can be
made is pecuniary orders, that is, orders for monetary compensation to be payable to
an application.”
[39] The Full Bench later concluded:
“[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.”
[40] It is not clear to me whether the Full Bench was including potential referrals to a WHS
regulator within the contemplation of orders that might be made under s.789FF of the Act. I
would agree with the proposition raised by HPS Transport that if formal orders were
contemplated by the Commission to that end, that implication must follow. There may also be
other forms of “referral” including where disclosure of an application is authorised by the
President under s.655 of the Act having formed the view that disclosure is likely to assist in
the administration or enforcement of a law of the Commonwealth, a State or a Territory.
Different considerations might apply in those circumstances.
[41] In this case, it would not, in any event, be appropriate to make a referral to a WHS
authority. The circumstances raised by Mr Bassanese are, at least in part, likely to be touched
upon in a related workers compensation matter that has, or may be, determined by the relevant
Tribunal. That Tribunal10 is not a WHS regulator however the issues are capable of being
canvassed in a broadly relevant jurisdiction.11 Further, it is also open to Mr Bassanese to
directly raise his concerns with a relevant WHS regulator12 should there be grounds to do so.13
3. Conclusions and Order
[42] I have not made any findings in relation to the merit of Mr Bassanese’s application or
the very serious allegations that he has made. The jurisdiction for the Commission to do so
only arises within the framework of the Act. For reasons set out above, there are limitations
on the scope of the Commission’s capacity to deal with an AB application where the
employment or contractual relationship has ended. This arises from the particular manner in
which the power to make orders has been expressed within the Act.
[43] In this case, there is no basis upon which a further relevant risk of bullying conduct
might arise and none has been suggested or is evident from the circumstances. In the absence
of that risk or a foreseeable basis for such a risk, no orders can be made as a result of the
application even if bullying conduct was to be found. Accordingly, there are no reasonable
prospects that the AB application can relevantly succeed.
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[44] In all of the circumstances of this matter it is appropriate to dismiss the AB application
and I so order.
[45] I also note the capacity for Mr Bassanese to bring a new AB application in the event
that a risk of (further) bullying of him as a worker by the relevant individuals at the particular
workplace actually arises in the future.14
Conference (by phone):
2015
26 March.
Final written submissions:
2015
8 April
27 May
1 June.
Printed by authority of the Commonwealth Government Printer
Price code C, PR567670
1 [2015] FWC 1222.
2 [2015] FWC 1222 at [39].
3 [2015] FWC 1222 at [41].
4 [2015] FWC 1879.
5 [2015] FWCFB 1661.
6 No appeal in relation to either decision in the unfair dismissal proceedings has been filed as at the date of this decision and
any such appeal would now require a very significant extension of time - Rule 56(2) of the Fair Work Commission Rules
2013.
7 [2014] FWC 6988.
8 FWC may dismiss an application under section 789FC if the FWC considers that the application might involve matters that
relate to: (a) Australia’s defence; or (b) Australia’s national security; or (c) an existing or future covert operation (within the
meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police; or (d) an existing or future
international operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal
Police.
9 [2014] FWC 3408.
FAIR WORK THE E THE F COMMIS 4 COMMISSIONER SEAL SSION THE
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10 Workers Compensation Tribunal of SA operating under the Workers Rehabilitation and Compensation Act 1986 (SA).
11 I understand from material supplied by Mr Bassanese that his workers compensation claim may have been rejected
however there is scope under the relevant legislation for such to be disputed.
12 SafeWork SA - in the case of Mr Bassanese.
13 Section 789FH of the Act.
14 See Obatoki at [17].
