1
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Sinem Ketenci
v
Commissioner for Public Employment T/A Office of the Commissioner for
Public Employment and Others
(AB2017/583)
COMMISSIONER BISSETT MELBOURNE, 24 APRIL 2018
Application for an FWC order to stop bullying - unfair dismissal application lodged - 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 - anti-bullying application dismissed.
[1] On 2 November 2017 Ms Sinem Ketenci made an application to the Fair Work
Commission (Commission) pursuant to s.789FC of the Fair Work Act 2009 (FW Act) for
orders to stop bullying. Ms Ketenci worked for the Commissioner for Public Employment
T/A Office of the Commissioner for Public Employment (OCPE) in Territory Families, based
in Alice Springs. The specific order sought by Ms Ketenci was that she be transferred to
another Department of the OCPE and be located in Darwin.
[2] The application by Ms Ketenci was subject to conciliation before me. At that stage
Ms Ketenci sought that a (separate) process commenced pursuant to s.44 of the Public Sector
Employment and Management Act (PSEMA) (Employee performance and inability) be halted
pending the resolution of her application for orders to stop bullying. The OCPE declined to do
so.
[3] The application did not settle at conciliation and, on 16 January 2018 I issued
directions for the filing of evidence and submissions. The application was set down for
hearing in the week of 14 May 2018 in Darwin.
[4] On 28 February 2018 Ms Ketenci advised the Commission that her employment had
been terminated on 23 February 2018. Ms Ketenci indicated that she intended to make an
application pursuant to s.394 of the FW Act for a remedy for unfair dismissal and requested
that, until that was resolved, her application for orders to stop bullying be held in abeyance so
that, if she was reinstated as she sought, she could continue with her application if necessary
(that is, if she was re-appointed to the position she occupied or a similar position where she
considered the bullying would continue).
[2018] FWC 2299
DECISION
E AUSTRALIA FairWork Commission
[2018] FWC 2299
2
[5] On 5 March 2018 the OCPE indicated that it was of the view that Ms Ketenci’s
application for orders to stop bullying should be dismissed as she would be unable to satisfy
the Commission that she would continue to be bullied at work as she was no longer employed
with Territory Families.
[6] The Commission wrote to the parties on 6 March 2018 seeking submissions as to why
Ms Ketenci’s application should not be dismissed pursuant to s.587(1)(c) of the FW Act.
[7] For the reasons given below I have decided to dismiss Ms Ketenci’s application for
orders pursuant to s.789FF of the FW Act.
Submissions
[8] The OCPE submits that the Commission only has jurisdiction to make orders if,
amongst other prerequisites, it is satisfied that there is a continued risk of bullying at work. It
submits that, given Ms Ketenci’s employment has been terminated, there is no risk that she
will continue to be bullied at work. In such circumstances it submits that the Commission
does not have power to make the order sought by Ms Ketenci and, as a result, the application
has no reasonable prospect of success and should be dismissed.
[9] The OCPE notes that Ms Ketenci has made an application for relief from unfair
dismissal and has sought reinstatement but submits that it is “speculative and uncertain” that
this application will be successful.
[10] The OCPE submits that, if Ms Ketenci is successful in her application for relief from
unfair dismissal and if she is reinstated, she is at liberty to make a fresh application and to
have that determined in accordance with the requirements of the FW Act.
[11] Ms Ketenci submits that she was bullied at work on “personal, cultural and systemic
levels” and that the termination of her employment was not reasonable management action
carried out in a reasonable manner.
[12] Ms Ketenci submits that the decision taken by the Chief Executive Officer of Territory
Families to dismiss her from her employment pursuant to s.44 and s.46 of the PSEMA was
based on a report of a psychiatrist paid for the OCPE (against whom she is taking legal
action) and ignored contrary advice from her own psychiatrist.
[13] Ms Ketenci also advised that her application for relief from unfair dismissal did not
settle at conciliation and that she ultimately withdrew that application so that she could pursue
an application with the Australian Human Rights Commission (AHRC).
[14] Ms Ketenci submits that these two actions may result in her reinstatement to
employment. She says that dismissing her application for orders to stop bullying now will
disadvantage her “because she would be placed in the “red alert” list to never be employed by
the NT Government because of her complaints…”
[15] Ms Ketenci requests that her application not be dismissed but be put on hold for future
proceedings.
[2018] FWC 2299
3
[16] In reply, the OCPE says that it is unaware of any legal action Ms Ketenci may be
pursuing against the psychiatrist or any application she has made to the AHRC. In any event,
it submits that the outcome of such proceedings and whether they would lead to reinstatement
is speculative and uncertain.
[17] Further, the OCPE submits that there is no “red alert” list as suggested.
Power to dismiss an application
[18] Section 587 of the FW Act vests power in the Commission to dismiss an application
on certain grounds. The dismissal of an application may be considered on application by a
party to a matter before the Commission or on the Commission’s own motion.
[19] Section 587 of the FW Act states:
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…
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application
under section 365 or 773 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.
[20] I would observe that the Commission is not limited to dismissing an application only
in the circumstances set out in s.587(1)(a)-(c). This much is clear from the words “without
limiting when the FWC may dismiss as application…” The Commission is therefore not
limited to considering only if the application has no reasonable prospect of success.
[2018] FWC 2299
4
Power to make orders to stop bullying
[21] Section 789FC of the FW Act provides as follows:
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.
(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.
…
[22] Section 789FD of the FW 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.
…
[2018] FWC 2299
5
[23] The capacity of the Commission to make orders is set out in s.789FF of the FW 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.
…
[underlining added]
[24] That is, the Commission may issue orders to stop bullying only in circumstances
where there is a risk that a worker who has been bullied at work will continue to be bullied at
work.
Consideration
[25] Ms Ketenci is no longer employed with Territory Families. To the extent that
Ms Ketenci was bullied at work (and I make no finding or express any view on this) and may
satisfy the Commission that the provisions of s.789FF(1)(b)(i) have been met, it will not be
possible, in the current circumstances, for the Commission to reach the requisite satisfaction
that there is a risk she will continue to be bullied at work and hence that the requirements of
s.798FF(1)(b)(ii) have been met. In such circumstances the Commission is unable to issue any
order.
[26] Specifically, however, Ms Ketenci seeks not that I continue to hear her application
(such that the observations immediately above are not necessarily relevant), but that I put her
application “on hold” until such time as she seeks further proceedings at some point in the
future. The matter to be determined is therefore whether the Commission should keep the
application on foot pending the outcome of proceedings Ms Ketenci has commenced in the
AHRC and against the psychiatrist.
[2018] FWC 2299
6
[27] On these two matters I would observe, however, that:
it is not clear how the two sets of proceedings Ms Ketenci has commenced might
result in her reinstatement into the workplace such that her application for orders
to stop bullying might became a live issue again;
if Ms Ketenci was reinstated through those proceedings, where within the
NT public service this might be; and
it is not clear how long either or both of these proceedings will take.
[28] In such circumstances, I do not consider that holding the file “for future proceedings”
is a reasonable consideration. This is particularly so when there is no bar to Ms Ketenci
making a further application in which she may be able to rely on the same historical events
(to the extent they remain relevant) should she be returned to the workplace where she says
bullying occurred and she considers there is some risk it will occur again.1
[29] All parties affected by an application before the Commission deserve certainty in the
progress of the application. In the circumstances of this case, holding the file for future
proceedings on an unknown timeline will only increase anxiety in the parties in circumstances
where the other proceedings are of an indeterminate nature with no indication of when these
proceedings might re-commence.
[30] I am not convinced that dismissing Ms Ketenci’s application at this point in time will
disadvantage her with respect to employment with the Northern territory Government. Even if
I did accept that there was a “red alert list” (and I do not) it is not clear how keeping the
complaint on hold would place Ms Ketenci on, or ensure she was not placed on, such a list.
[31] In Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ
Bank; Bianca Haines2 (Shaw v ANZ), Deputy President Gostencnik was dealing with an anti-
bullying application where an applicant, Mr 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 individuals identified in his application
because Mr Shaw is no longer employed by ANZ and therefore is no longer at work.
[2018] FWC 2299
7
[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.”
[32] Whilst those observations of the Deputy President were made in a slightly different
context I consider them applicable to the matter before me. That Ms Ketenci may be
reinstated, particularly in circumstances where she is not pursuing an application through the
Commission, is highly speculative and uncertain. To put an application before the
Commission on hold pending some unknown applications proceeding through processes
outside of the Commission is an unreasonable and unfair burden to impose on all parties to
the matter.
[33] I am not convinced that dismissing this application will disadvantage Ms Ketenci. She
would only be able to pursue it if she was reinstated. It is not clear how dismissing the
application will prejudice her in being reinstated should she be successful through the
applications she currently has on foot.
Conclusion
[34] I am satisfied that, as Ms Ketenci is no longer employed with Territory Families, that
her application for orders to stop bullying should be dismissed pursuant to s.587 of the
FW Act. As Ms Ketenci no longer works for Territory Families I am satisfied that her
application has no reasonable prospect of success as she cannot satisfy me that there is a risk
that she will continue to be bullied at work such that the discretion of the Commission to issue
such orders could be enlivened. To the extent that Ms Ketenci seeks that her application be
put “on hold” I do not consider that a reasonable course of events in circumstances where
there is no prejudice to her in any further application she be reinstated to the Northern
Territory public service.
[35] For these reason the application of Ms Ketenci is dismissed pursuant to s.587 of the
FW Act. An order3 to this effect will be issued with this decision.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
PR602204
Endnotes:
1 Obatoki v Mallee Track Health & Community Services and Others [2015] FWCFB 1661, [17].
2 [2014] FWC 3408.
3 PR602227.
THE FAIR WORK MMISSION THE SEAL
