Absence of future risk of sexual harassment

If a worker will no longer be at work with the relevant individual or individuals, and there is no reasonable prospect of that occurring in some capacity in the future, then it will usually not be possible for an applicant to demonstrate that they are at future risk of being sexually harassed at work by the individual(s).

The circumstances in which this might arise have been considered in the context of applications to stop bullying at work. They include the person who harassed the worker no longer working at the workplace[106], the worker making an application after having ceased working in a workplace, or the worker being dismissed or ceasing work in a workplace[107] after making an application but before the matter is dealt with by the Commission.[108]

If there is no risk that the applicant will continue to be sexually harassed at work by the individual or individuals named in the application, the Commission has no power to make the order sought by the applicant. In these circumstances, the Commission is likely to find that the application has no reasonable prospect of success. The Commission may exercise its discretion to dismiss the application in those circumstances.[109]

The Commission has held that it will not always be appropriate to dismiss an application where a worker has been terminated from their employment. The decision to dismiss an application on this basis requires a consideration of the particular circumstances of the parties, including whether or not an individual may return to a workplace in some capacity as a worker. The Commission may decide to consider the application or adjourn it until any related dismissal proceeding - where there is a prospect of reinstatement- is determined. This is a matter of judgement in the particular circumstances of each case.[110]

If a dismissed employee is re-employed by the same employer at some future point, and the employee is concerned about the risk of sexual harassment, there is nothing to stop the employee making another application under s.789FC as long as the jurisdictional facts can be established in relation to that application.[111] Allegations of past sexual harassment can be relied upon in support of any such application.[112]

The following case examples are drawn from Commission decisions dealing with applications to stop bullying at work:

Application for orders to stop bullying – no longer employed – Application dismissed

Application by Vanessa Stewart [2020] FWC 4562 (Simpson C, 28 August 2020)

Facts

The application for orders to stop bullying was lodged on 17 June 2020. On 3 August 2020, the applicant wrote to the Commission and confirmed that she had resigned from her employment.  The respondent requested that the Commission dismiss the matter under s.587 of the Fair Work Act.

Outcome

As there was no evidence to suggest there was a risk that the applicant would continue to be bullied at work, the application was dismissed on the grounds it had no reasonable prospects of success.

Relevance

It was clear from the circumstances of the matter that there was presently no risk the applicant would be bullied at work by the group of individuals against whom she made her application, given she was no longer employed by the employer and no longer attended the workplace. In those circumstances, the Commission exercised its discretion to dismiss the application.

Application for orders to stop bullying – no risk of future bullying – Application dismissed

Ms Aferdita (Rita) Shehu [2020] FWC 4544 (Lee C, 10 September 2020)

Facts

The applicant alleged bullying by 2 named individuals in the workplace. The alleged conduct included being placed under an unsustainable level of work, receiving no support from a named person and being subject to disparaging remarks.

At the time of the hearing, the applicant had not been at work for over 18 months and remained totally incapacitated for work. The persons named either no longer worked at the workplace or had not worked at the workplace for a number of months and did not wish to return to the workplace.

The applicant maintained that she continued to be at risk of bullying and sought that the Commission determine that the bullying occurred and make orders to stop the bullying. The employer asked the Commission to dismiss the application on the basis that there was no risk of bullying occurring as a consequence of the persons named no longer being in the workplace.

Outcome

The application was dismissed pursuant to s.587 of the Fair Work Act as it had no reasonable prospects of success.

Even assuming that the applicant had been bullied at work, the Commission was satisfied on the evidence that there was no risk of the applicant continuing to be bullied at work by those individuals, in circumstances where they were not working at that store and were extremely unlikely to work there again. Further, the employer was willing to facilitate the applicant’s transfer to another store if the applicant wished.

Relevance

In order for the Commission to make an order to stop bullying both ss.789FF(1)(b)(i) and (ii) must be satisfied. Because there was no risk that the applicant would continue to be bullied, s.789FF(b)(ii) could not be satisfied and the Commission did not need to make a finding under s.789FF(b)(i) as to whether or not there was bullying behaviour.