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FWC makes first decision under new jurisdiction, rules case has ‘no reasonable prospect of success’

BY Paulinet Tamaray 15 Jan 2022Share

The Fair Work Commission (FWC) has made its first decision under its new expanded jurisdiction involving an applicant allegedly harassed by workers who shared the same warehouse complex.

The issue centered around the alleged offenders’ defence that the applicant “did not meet the definition of ‘worker’ and the applicant was not at work when the alleged bullying and sexual harassment occurred”.

The applicant applied for an “order to stop bullying and sexual harassment” under the Fair Work Act and named two persons employed by a neighbouring business. The application also sought an order to register the named persons as “bad men.”

The FWC said the particulars of the applicant’s allegations were “not confirmed” by the alleged offenders and “it was unnecessary to do so” because the applicant’s business “has moved out of the warehouse complex, and the parties no longer have any physical connectivity, where they will cross paths while at work.”

In its decision, the FWC said that since the applicant’s place of work has changed and is no longer within the same area where the two named persons work, “there is no risk that [the applicant] may be subject to bullying and/ or sexual harassment at work.”

It further said that the case had “no reasonable prospects of success” and ordered its dismissal.

The Act was recently amended to include “sexual harassment” to the FWC’s “stop bullying orders jurisdiction.” The Commission can issue an order to prevent the worker from being bullied or sexually harassed where an application is made under s.789FC and it is satisfied that: the worker has been bullied or sexually harassed (or both) by an individual or group of employees; and there is a risk that the worker will continue to be bullied at work by the individual or group of employees.

As to the dismissal of an application, the FWC may dismiss it 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.

Dismissal may be done at the FWC’s initiative; or by application.