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Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Garth Atkinson
(AB2015/251)
COMMISSIONER WILLIAMS PERTH, 23 JULY 2015
Application for an FWC order to stop bullying.
[1] This decision concerns an application made by Mr Garth Atkinson (Mr Atkinson or
the applicant) under section 789FC of the Fair Work Act 2009 (the Act). The
Employer/Principal is Killarney Properties Pty Ltd (the Employer/Principal).
[2] This is the second application made by Mr Atkinson regarding his employment. This
application was made on 8 May 2015 and has not been progressed due to the Commission
dealing with the prior application (AB2014/175).
[3] On 4 June 2015 the Employer/Principal advised that Mr Atkinson’s employment had
been terminated with effect on 3 June 2015. The Employer/Principal explained that it
understood this may affect the Commission’s jurisdiction in relation to the determination of
this application.
[4] Consequently the Commission wrote to Mr Atkinson and advised that the
Commission’s preliminary view was that as a consequence of his employment having been
terminated there was no risk of him being bullied at work in the future and therefore there was
no power for the Commission to make an order to stop bullying and consequently his
application had no reasonable prospect of success and should be dismissed. Mr Atkinson was
invited to put any submissions on this preliminary view before the matter was decided.
[5] Mr Atkinson has provided written submissions opposing the Commission dismissing
his application. Mr Atkinson made submissions regarding concerns raised in a previous
Federal enquiry in 2012 into workplace bullying. Mr Atkinson challenged the reasoning and
decision of Deputy President Gostencnik in the decision of Shaw v ANZ1. Mr Atkinson
submitted that the Commission should decide his application on terms other than those
prescribed by the application and make a summary instead of an order and consequently there
is no basis for his application to be dismissed because no order to prevent future bullying is
required.
[6] Mr Atkinson’s submissions discloses that he has made an application under section
365 of the Act alleging the reasons for his termination of employment involve a breach of the
general protections provisions.
[2015] FWC 5038[Note: Appeals pursuant to s.604 (C2015/5122,
C2015/5123) were lodged against this decision - refer to Full Bench
decision dated 14 October 2015 [[2015] FWCFB 6503] for result of
appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB6503.htm
[2015] FWC 5038
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The legislation
[7] The relevant parts of the legislation are set out below.
“789FA Guide to this Part
This Part allows a worker who has been bullied at work to apply to the FWC for an
order to stop the bullying.
789FB Meanings of employee and employer
In this Part, employee and employer have their ordinary meanings.
Division 2—Stopping workers being bullied at work
789FC Application for an FWC order to stop bullying
(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.
…
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
[2015] FWC 5038
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(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.”
Consideration
[8] Firstly the submission that the Commission should decide Mr Atkinson’s section
789FC application in his favour and issue some summary or statement without making an
order to stop the bullying ignores the fact that such an application in subsection 789FC (1) of
the Act is expressly an application “...for an order under 789FF”, which is an order to stop
bullying. This is the sole purpose of the application he has made. Indeed section 789FA which
is a guide to this Part of the Act explains that this Part of the Act is to allow a worker to apply
for an order to stop bullying at work.
[9] With respect to the matters considered below it should be remembered that the
Commission has made no decision as to whether or not Mr Atkinson has been bullied at work
in the past.
[10] Relevantly Mr Atkinson’s employment has now been terminated and consequently he
is no longer “...at work...” Therefore I am not satisfied there is a risk that in future Mr
Atkinson will be bullied at work.
[11] Mr Atkinson has made a section 365 General Protections application regarding his
termination of employment. Whether Mr Atkinson is seeking reinstatement as a remedy is not
known. If he is seeking reinstatement there is obviously no certainty as to the success or not
of his application. Even if he is successful with his section 365 application there can also be
no certainty that reinstatement would be ordered in any event; that would be a decision for the
Court.
[12] If at some point in the future Mr Atkinson is indeed reinstated he is not prevented from
making a new application under section 789FC of the Act if necessary. The fresh application
could then properly consider what may well be changed circumstances given what in all
likelihood will have been an extended period of time which has passed and could also take
into account the significant new development being the decision of a Court to reinstate Mr
Atkinson. As can be seen dismissing this application does not disadvantage Mr Atkinson.
Adjourning this application indefinitely because of the remote possibility Mr Atkinson is
reinstated at some time in the future is consequently not warranted.
[13] The Commission under section 587(1)(c) of the Act is specifically empowered to
dismiss an application if it has no reasonable prospect of success.
[14] The Commission only has jurisdiction to make an order under section 789FF of the
Act if, amongst other prerequisites, the Commission is satisfied there is a risk of continued
bullying of the applicant at work. Where there is not a risk of future bullying at work there
will be no reasonable prospect of success of an application for an order to stop bullying.
[15] In the circumstances of this matter I find that there is no reasonable prospect of an
order being made by the Commission under section789FF of the Act. Consequently I will
[2015] FWC 5038
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exercise my discretion and dismiss this application that was made under section 789FC of the
Act.
[16] An order to this effect will be issued in conjunction with this decision.
COMMISSIONER
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Price code A, PR569756
1 [2014] FWC 3408.
