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, the worker making an application after having ceased working in a workplace, or the worker being dismissed or ceasing work in a workplace after making an application but before the matter is dealt with by the Commission.
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.
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.
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. Allegations of past sexual harassment can be relied upon in support of any such application.
The following case examples are drawn from Commission decisions dealing with applications to stop bullying at work: