1 Fair Work Act 2009 s.789FC - Application for an order to stop bullying Khayria Shanoun v Jade Elliott, Maria Cepeda, Sandra Pereira, Dolceroma (SO2021/40) COMMISSIONER P RYAN SYDNEY, 14 JANUARY 2022 Application for an FWC order to stop bullying– matter dismissed under s.587 at the Commission’s initiative. Background [1] On 2 December 2021, Ms Khayria Shanoun (Applicant) filed an application in the Commission for an order to stop bullying pursuant to s.789FC of the Fair Work Act 2009 (Cth) (FW Act). The application named three individuals who were the Applicant’s co-workers. [2] On 20 December 2021, I conducted a preliminary conference with the Applicant, the named person’s, and the Applicant’s employer. [3] On 24 December 2021, the representative for the Applicant’s employer wrote to my chambers advising that the Applicant had resigned from her employment on 22 December 2021 and sought that the application be dismissed. [4] On 24 December 2021, my chambers wrote to the Applicant seeking confirmation as to whether she had resigned from her employment. No response was received. [5] On 11 January 2022, my chambers sent further correspondence to the Applicant seeking confirmation as to whether she had resigned from her employment. On 12 January 2022, the Applicant replied to that correspondence confirming she had resigned from her employment. [6] On 12 January 2022, the representative for the Applicant’s employer wrote to my chambers seeking the application be dismissed pursuant to s.587(1)(c) of the FW Act. [7] On 13 January 2022, my chambers wrote to the Applicant advising her that the effect of her resignation means it is unlikely that there is any risk the Applicant will continue to be bullied at work, which is a precondition to the making of any stop bullying orders. The Applicant was directed to provide a response by 12 PM on Friday, 14 January 2021 as to whether she wished to proceed with the application or withdraw it. The Applicant was advised that if no response was received by that time, the application may be dismissed without further notice pursuant to s.587 of the FW Act. [2022] FWC 56 DECISION [2022] FWC 56 2 [8] The Applicant did not respond. Legislative Provisions [9] Section 587 of the FW Act 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. (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.” [10] Section 789FF of the FW Act provides 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 [2022] FWC 56 3 (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.” Consideration [11] Section 587 of the FW Act provides that the Commission may dismiss an application where there is no reasonable prospects of success and that it may dismiss the matter on application, or acting on its own initiative. Notwithstanding the correspondence sent on behalf of the Applicant’s employer, I have proceeded to deal with the matter pursuant to s.587(3)(a) of the FW Act. [12] It is not in dispute that the Applicant has resigned her employment and no longer works with the named persons. [13] Accordingly, I cannot be satisfied that the Applicant will continue to be bullied at work by the named persons, which is a pre-condition to the making of any stop bullying orders (see s.789FF (1)(b)(i) of the FW Act). It follows that the application has no reasonable prospects of success. Disposition [14] The Application is dismissed on the basis that it has no reasonable prospects of success. [15] An order to that effect will issue with this decision. [2022] FWC 56 4 COMMISSIONER Printed by authority of the Commonwealth Government Printer <PR737493>