| FWC 6486 [Note: An appeal pursuant to s.604 (C2018/6937) was lodged against this decision. - refer to Full Bench decision dated 19 February 2019 [ FWCFB 1093] for result of appeal.]|
|FAIR WORK COMMISSION|
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Alemtsehay (Alem) Mekuria
MELBOURNE, 20 NOVEMBER 2018
Application for an FWC order to stop bullying – whether application has no reasonable prospects of success – whether orders should be made given present circumstances – nature of the power and discretion discussed – particular circumstances applying in this case including actions taken by the employer including separation of relevant employees within the workplace – in all of the circumstances not persuaded that there is a risk of further bullying –no jurisdictional basis to make stop bullying orders – application dismissed.
 This decision deals with an application that has been made by Ms Alemtsehay (Alem) Mekuria (the Applicant) for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the Act). The application alleged bullying conduct by a group of individuals in a workplace which is conducted by MECCA Brands Pty Ltd T/A Mecca Cosmetica (the Employer). The workplace is a storage facility and the Applicant and the persons named are all warehouse distributive services team members.
 The group of individuals against whom bullying was alleged includes Ms Debra Kelso, Ms Christine Mantacas and Ms Grace Chiruvu. For convenience, and in light of the fact that common positions have been adopted, I will describe the Employer and the individual parties as the Respondent parties.
 The application was lodged on 5 March 2018. It has been the subject of numerous conferences before me held on 11 April 2018, 17 May 2018, 25 May 2018 and 27 July 2018. The Applicant has been strident in her claims as to the allegations of bullying behaviour she maintains has occurred, although an outcome of the conference process was that the Applicant no longer pressed her claim as to the allegation involving Ms Chiruvu and as a result Ms Chiruvu was not required to attend the Commission conferences held after 17 May 2018. The Applicant confirmed during the hearing on 18 September 2018 that Ms Chiruvu has never said anything to her and that she does not have any communication with her. 1 However, she maintained her claim that the two other persons named had engaged in bullying behaviour. The persons named have insisted that they have not engaged in the behaviour as claimed. The Employer conducted investigations into the Applicant’s claims of bullying and harassment but found that they were not substantiated.2
 In summary, the alleged behaviour includes, among other things, hurtful comments and passive aggressive behaviour carried out publicly in the workplace in front of the Applicant to disparage, hurt and ostracise her from the workplace. Further, the Applicant alleges it has included ridiculing and discriminating against her because of her accent and ethnic background and being a single Mother, spreading rumours about her and her family and organising hate group activities. The Applicant claimed the conduct had continued repeatedly for 12 months prior to the lodging of her application and was still ongoing. 3
 Notwithstanding the view of Ms Rebecca Hanley, Head of Talent & Culture Business Partnering, that there was not bullying behaviour occurring, she was willing to make any reasonable changes to eliminate the risk of bullying, given that the Applicant perceived that she was being bullied. As a result of the conferences conducted and in consultation with the Applicant and the persons named, the Employer implemented a number of initiatives aimed at reducing or eliminating the risk of any bullying. The consultation over the changes that were implemented was overseen by me during the conferences that were held. In summary, the changes implemented included training of employees, the signing of behavioural commitments to support a respectful, safe and cooperative working environment within the CFC and broader DC and the physical moving of staff to different locations in the warehouse in order to reduce or eliminate the prospect of the Applicant coming into contact with the persons named.
 Notwithstanding the implementation of the various initiatives, the Applicant maintains that she continues to be at risk of bullying and seeks that the Commission make orders to stop the bullying. The Employer seeks the Commission dismiss the application on the basis that there is no risk of bullying occurring as a consequence of the initiatives that the company has put in place to deal with the matter.
 Directions were set for the filing of submissions and the matter was listed for Hearing before me on 18 September 2018 The directions were as follows:
“ Ms Alemtsehay (Alem) Mekuria (the Applicant) has applied to the Fair Work Commission (FWC) under s.789FC of the Fair Work Act 2009 (the Act) for an order to stop bullying. The application was lodged on 5 March 2018.
 A number of conferences have been conducted in this matter aimed at dealing with the claims of the Applicant that she has been subjected to bullying and remains at risk of bullying. I note that the Applicant maintains the claim that she has been bullied and the persons named in the application (Ms Christine Mantacas, Ms Debra Kelso and Ms Grace Chiruvu) deny that they have engaged in the alleged behaviour.
 Irrespective, MECCA Brands Pty Ltd T/A Mecca Cosmetica (the Employer) has taken a number of steps aimed at reducing or eliminating the risk of bullying. These steps have also been the subject of discussion at the conferences before me. The Employer has set out a summary of all of the steps taken in correspondence received yesterday, Monday, 6 August 2018. Having regard to this the Employer seeks that the application be dismissed as there is no risk that the worker will continue to be bullied at work by the individual or group.
 Section 587 of the Act sets out when the FWC may dismiss an application. Section (1) and (3) of the Act are in the following terms:
“(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.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
 The parties are directed to file materials in relation to whether in these circumstances there is a risk that the Applicant will continue to be bullied at work by the persons named in the application (Ms Christine Mantacas, Ms Debra Kelso and Ms Grace Chiruvu) and whether there is power for the Commission to make an order to stop bullying (see s.789FF(1)(b)(2)) or whether the application has no reasonable prospects of success and should be dismissed pursuant to s.587 of the Act….”
2. The positions advanced by the parties
2.1 The Applicant
 The Applicant has worked for the Employer since around September 2015. She is a refugee from Ethiopia and English is her second language. 4 She is deservedly very proud of her significant achievements since arriving in Australia which include raising a family, completing various courses of study and securing gainful employment. While the Applicant is proficient in her command of English, her English is limited. The Applicant advised in her application that she did not require an interpreter in order to participate in Commission proceedings.
 The Applicant conceded at the hearing that some of the initiatives Ms Hanley claims have been put in place, have in fact been implemented. This includes Ms Kelso’s permanent relocation to a different work team and location from the Applicant in April 2018 and that Ms Kelso’s break time has been changed to remove any overlap. Also that Ms Mantacas has been permanently relocated to a different work team and location from the Applicant effective 6 August 2018. 5 However, the Applicant maintains that she was still being bullied although it was apparent that many, though not all of these claims related to new allegations about a supervisor, Alyce, and an employee known as Morena. There was also a new allegation involving the person named, Ms Mantacas, which related to discussions with the supervisor, Alyce, on 30 July 2018.6 These allegations were set out in materials filed by the Applicant less than 30 minutes prior to the hearing. Hard copies of the materials filed by the Applicant just prior to hearing were provided to Ms Hanley in person and the commencement of proceedings was delayed to allow time for Ms Hanley to consider the materials.
 Ms Hanley stated during the hearing that the allegations had not been raised formally with the Employer and this was the first she had heard of them. 7 The Applicant also made allegations about bullying conduct by Ms Hanley, again these allegations were not made until less than 30 minutes prior to the hearing and during the hearing itself. It is clear a number of the new allegations were made against people not named in the application as the group of individuals against whom bullying is alleged.
 The Applicant has sought, at least up until when the hearing took place, orders that include a general requirement that the bullying stop. The orders sought in the 31 August 2018 submissions of the Applicant are:
1. The Stop Bullying order under section 789FC of the Fair Work Act 2009 remain enforce. [sic]
2. An order being issued under section 789FF(1) to make appropriate orders to protect the Applicant from discrimination and victimisation in the workplace.
3. Such other relief as Fair Work considers appropriate.
 The Applicant submitted the following in her written submission dated 31 August 2018:
“1. The Applicant claims the actions by the Respondent in addressing the claim by the Applicant 5 March 2018 has failed to address the underlying issues of discrimination and victimisation in the workplace, which form bullying conduct:
1.1. The Applicant claims the Respondent has breached and continues to do so under section 351 of the Fair Work Act 2009.
2. The Applicant claims there has been sufficient evidence that has been provided during the conferences held that demonstrate the Respondent has failed to provide a safe workplace from discrimination:
2.1. The Applicant claims the Respondent breached section 21 of the Occupational Health and Safety Act 2004 (Vic) as the action taken by the Respondent has failed to address the issues of discriminations and victimisation against the Applicant.
3. The Applicant claims that the Respondent’s employees Ms Christine Mantacas,. Ms Debra Kelso and Ms Grace Chiruvu have specifically targeted directly and indirectly by comments and actions against the Applicant which has placed the Applicant in a constant demeaning position and fear for job security:
3.1. The Applicant refers to the witness statement of Janet Mandfredi.
3.2. The Applicant refers to the witness statement of Jessica Lee.
3.3. The Applicant refers to their statement of reference.
4. The Applicant claims that as a result of the Respondents actions the Applicant has been isolated in a work related aspect that has placed the Applicant into a depressed stated which has caused the applicant to suffer depression:
4.1. The Applicant claims the Respondent acted with carelessness and recklessness with repeated and unreasonable behaviour against the Applicant which such its defined under section 78FD(1) of the Fair Work Act 2009.
4.2. The Applicant refers to the report from Sharon Southwell Clinical Psychologist.
5. The Applicant is from Ethiopia and is of opinion that because of the Applicant’s height, colour of skin, limited vocabulary in English and general cultural difference, the Respondent has targeted the Applicant with deeming comments, remarks and body language actions that go to the core of direct and indirect discrimination against the Applicant who is of African origin:
5.1. As a result of the Respondents conduct whether carelessly or recklessly, the Applicant has suffered psychological injury as a result of the Respondent’s beaches under the Fair Work Act 2009.
5.2. The Applicant refers to the report from Sharon Southwell Clinical Psychologist.
6. The Respondent as a result of the conferences held under the instruction of Fair Work, did change the work parameters of the Applicant, however, the Respondent’s recklessness or careless actions continued to victimise the Applicant to a state of fear and depression,
7. The Applicant claims the special measures the Respondent implemented as per their correspondence 6 August 2018 has failed to provide a safe workplace for the Applicant.
7.1. The Applicant claims the Respondent breached section 351 of the Fair Work Act 2009.
8. The Applicant claims the Respondent has failed to take reasonable steps under section 789FD(2) to protect the Applicant.
8.1. The Applicant claims the action taken by the Respondent under section 789FD(2) has not addressed the educational programs for management and employees in respect to ensuring discrimination and victimisation does not occur in the workplace, which as result has directly injured the Applicant.
9. The Applicant claims the Respondent has breached their duty of care to protect the Applicant from psychiatric injury of adjustment disorder which is a recognized illness caused by bullying conduct.” 8
 At the hearing, the Applicant gave evidence to the following effect:
• That on 30 July 2018 her supervisor stood near her discussing the Applicant’s statement to the Commission with Ms Mantacas. It is claimed that Ms Mantacas said “she is trying to scare them” and that the supervisor responded “I know, I know”. 9
• That in the following days, the supervisor made comments “to everyone’s stations” in relation to the Applicant’s health issues. 10
• That her complaint about her department supervisor was being considered by the external investigator. However, she did not expect a satisfactory outcome from the investigation as all the witnesses were friends of the supervisor. 11
• On 1 August 2018 her supervisor threatened her by asking why she didn’t go on a break. The Applicant explained her break time was altered to deal with the bullying issue and that the supervisor said she did not remember as she has “a million things to do” and later in the day the supervisor yelled at and pushed the Applicant. The Applicant described her supervisor as being “out of control” and said that the supervisor was angry with her. The Applicant also claimed that the supervisor was making disparaging references about the Applicant’s mental health to other employees. 12
• That she regrets compromising with the Company’s HR (Ms Hanley) who she accuses of complicating the law and speaking to the Commissioner on the phone “to complicate the law of Fair Work” and that Ms Hanley does not know her duties or that the Applicant had moved her work location to the new warehouse. 13 Further, at one point during the proceedings the Applicant claimed that Ms Hanley, in giving her evidence, was attacking her nationality because she is a migrant and refugee.14
• On 1 August 2018 she contacted my Associate and that her conversations were heard by a “stranger”. That she was visited by police on 2 August 2018 who had been contacted by the Commission and that on 6 August 2018 an employee named Morena spoke loudly in the staff lunch room referring to the Applicant’s mental health issues and the police visit. Further, that information about the police visit, the discussion with the Commission and her confidential health records had been leaked by management of the company. 15
• The supervisor attended the conference on 27 July 2018 and the supervisor then leaked the Applicant’s medical information and the Respondent’s mocked her for trying to scare the company and management. 16 I note that the only representative to appear at the Commission conference on behalf of the Employer was Ms Hanley and it is presumed this comment is directed to her.
• That on 4 and 5 September she was mocked, attacked and abused by the employee known as Morena. 17
• During the 3 to 4 week period prior to the hearing, management had organised an employee to “spy” on her. Sitting with the Applicant during her breaks, following her and recording and reporting what she said and this plan was “known by the Respondents and their groups”. 18
• Because of the Applicant’s nationality, management and her supervisor have ignored the abuse she has suffered. The Employer’s response to the Applicant’s submissions referred to the company setting up a prayer room in the new factory as a demonstration of their commitment to multiculturalism. 19 However, the Applicant was rather dismissive of this, claiming that many employers have done the same for a long time, that Ms Hanley marginalizes staff who use it and this implies regret at employing them. Further, that the prayer room was only organised for legal reasons to impress the Commission.20
• That she has had to reduce her working days from 5 days to 3 days in order “to survive bullying and discrimination”. 21
• She has been relegated to a category of “modern slavery” not eligible to be treated equally to other workers. 22
• That she had been called an “ape”, “chimpanzee” and “gorilla” by employees who had completed training which was introduced after the investigation and her complaints of bullying and discrimination. 23 The Applicant did not specify who it was that allegedly made these statements.
• She likened her situation to that of Rosa Parks, whose refusal to give up her seat on a racially segregated bus in 1955 started a movement which ended segregated seating on the Montgomery bus service in the United States. 24
• That the Employer had neglected taking action for a year to deal with the situation and that she needs help from management to stop the bullying. 25
• That the OH&S Manager is following and watching her even when she is outside at lunch and the “only thing left is the changing room or bathroom” and that she needs access to a mobile phone at work to be safe. 26
 The Applicant also stated the following in a document dated 18 September 2018 filed just prior to the hearing:
“I was very pleased with the Fair Work instruction given to the company dated 6 August 2018 in supporting me to provide me a safe work place. However, as a consequence of this instruction, my supervisor and managers were upset because they had friends who had been moved to different departments, or were upset by the change of breaks. The supervisor and the manager continue to humiliate me and undermine my ability by deliberately disclosing medical information about me to marginalise me in my relationships with other staff, including new staff who are just arrived to work temporarily through an agency.
Following this, I request an order from the Fair Work Commission to the effect that the supervisor and manager are required to honour the terms of the letter from Mecca Brands dated 6 August 2018. I also ask the Commission to order that the company respects my privacy and confidentiality. I request an order from the Fair Work Commission to reflect the terms of the company letter.
Finally, I request an order from the Fair Work Commission that my supervisors and managers stop gossiping with co-workers about everything they have been told by HR or top management for work purposes regarding my health, including the assumed health conditions of my family
My daughter is an innocent victim who has nothing to do with my work place; she was caught up in an attack by respondents and for safety reasons she moved out of our home in order to separate her from being discussed and attacked by respondents, as there is no authority who can stop them. After a Fair Work instruction had communicated with some staff that she has moved out, she now no longer assists me on public transport to come to work as respondents are aware of her workplace in an airport not far from the warehouse.
I have inform some staff that I am in the process of moving house to prevent further damage on my previous and to protect my own safety. I ask the Fair Work Commission to remind respondents and Company about my application for a stop bullying order and that the witness statements detailing issues that happened to me and my family were forwarded to police on 2 August 2018.
During this two weeks again the safety of me working and walking around has been compromised and I had requested from OHS/HR/and company CEO that I need to hold a mobile to communicate outside in order to be safe and it was refused.” 27
 The Applicant also tendered a psychologist report during the hearing which I have taken into account. 28
 The Applicant also provided a separate response to the external investigation by Worklogic Pty Ltd (Worklogic). 29 This investigation was commissioned by the Employer to investigate the various allegations made by the Applicant. In essence the Applicant contends that the investigation was flawed as it was biased, not independent and the investigator did not speak to a key witness.
 The Applicant’s other concerns relating to the investigation were that:
• She experienced intimidation by employees of Worklogic;
• The Employer is intent on destroying her sense of well-being;
• The Employer breached confidentiality by informing the investigator of her medical history;
• Witnesses feared being called to attend interviews with the investigator because they were concerned about poor treatment and intimidation by the supervisor and being victimised. Further, only staff who have left the company will speak freely about what the Applicant alleges has happened to her;
• Worklogic cleared the supervisor as they were biased towards her;
• Sending the investigation results to only the supervisor at first instance demonstrates that it was conducted consistent with “MECCA’s corrupt practices”; and
• The Employer has been discriminatory on the grounds of disability, associated with an alleged confidentiality breach by providing her sensitive medical history to the investigator. 30
 As noted earlier, a great deal of the evidence was connected to alleged bullying behaviours of people other than the persons named in the application.
2.2 The Respondent parties
 On 6 August 2018 Ms Hanley sent correspondence to my chambers requesting that the matter be dismissed. The correspondence was in the following terms, omitting formal parts:
“The employer MECCA Brands has taken all steps possible to remove the risk of ongoing bullying and believes there is no risk of the alleged bullying behaviour continuing. This is due to behavioural training and changes to the physical work teams and locations of the parties, ensuring there is no contact or close proximity of work activities between the respondents and the applicant Alem Mekuria.
MECCA Brands believes there is no risk of the applicant being subject to the alleged bullying behaviour, and that the Distribution Centre (DC) does not pose a risk to the applicants’ health and safety.
Below is a comprehensive list of positive measures taken by the Employer to remove the risk of bullying, and the request for the application to be dismissed is made on this basis;
1. Respondent Deb Kelso has been permanently relocated to a different work team and location from applicant Alem Mekuria in April 2018; Alem Mekuria continues to work in the CFC team, Deb Kelso has been relocated from the CFC to the Replenishment team, at the opposite end of the DC with over 7,000sqm distance between the 2 teams, ensuring there is no contact between the 2 parties.
2. Deb Kelso’s break time changed to remove any overlap; Deb Kelso’s break time has been changed so there is no overlap in break times with Alem Mekuria at all, ensuring the two parties are never in the break room at the same time. Alem Mekuria’s three break times do not overlap with both respondents Deb Kelso or Christine Mantacas.
3. Respondent Christine Mantacas has been permanently relocated to a different work team and location from applicant Alem Mekuria effective 6 August 2018; Alem Mekuria continues to work in the CFC team, Christine Mantacas has been relocated from the CFC team and now works between the Replenishment and Picking team, which is in a different location with different breaks times. This ensures there is no contact between the two parties at all.
4. The respondents have been advised to have no contact with the applicant; the no contact requirement for all respondents is applicable inside and outside of the workplace.
5. Compulsory behavioural training including prevention of bullying & harassment was rolled out in April 2018 by iHR; iHR were engaged to deliver the behavioural training emphasising respect in the workplace and expected behaviours in line with MECA Brands code of Conduct & policies. All 3 respondents have attended this training, to date Alem Mekuria has refused to attend the training (including a session without the respondents in).
6. Behavioural Commitments between the parties outlining expected behaviours; A behavioural commitment document was discussed with all parties to clarify expected standards of respectful behaviour in the workplace. The applicant Ms Mekuria refused to sign or contribute any suggestions or inclusions in what she would like to see in the commitment document.
7. Worklogic Investigation completed for Alem Mekuria’s 2nd complaint; The investigation for Alem Mekuria’s second complaint was outsourced to external investigator Jill Murphy from Worklogic, the investigation has been completed and an investigation report is due to be returned on 8 August 2018. Investigation findings and recommendations will be considered and implemented, and the outcome communicated to all parties as quickly as practicable.”
 The Respondent parties submit that the application should be dismissed in accordance with s.587(1)(c) of the Act on the basis the application has no reasonable prospects of success.
 The basis of the submission is as follows:
“a. Ms Mekuria’s allegations of bullying and harassment have not been substantiated following two separate investigations;
i. M Mekuria’s original complaint in September 2017 was investigated internally and found none of the allegations of bullying and harassment against Ms Chivru, Ms Kelso and Ms Mantacas to be substantiated; and
ii. Ms Mekuria’s second complaint in November 2017 was investigated by an external impartial investigator; Jill Murphy from Worklogic. This investigation found the majority of the allegations unsubstantiated. The two allegations party [sic] proven do not constitute bullying or harassment.
b. There is no ongoing risk that the Applicant will continue to be subjected the alleged bullying behaviour at work by an individual or group;
i. The respondents Ms Kelso and Ms Mantacas have been relocated to different work teams in the new Tullamarine Distribution Centre (DC) away from Ms Mekuria, who remains in the Customer Fulfilment (CFC) team;
ii. There is 5,000sqm distance in between the work teams;
iii. There are no break times that overlap between Ms Mekuria and Ms Kelso and Ms Mantacas; and
iv. There is a separate toilet block used by Ms Kelso, which is different from the main toilet block used by Ms Mekuria.
v. Due to these factors there is no ongoing risk of the parties being in close proximity, therefore the risk of the alleged bullying behaviour continuing has been eliminated.
c. MECCA Brands has reconfirmed behavioural standards by engaging i HR to run ‘Respect in the Workplace’ training, and implemented behavioural commitments between the parties in May 2018;
i. HR ran 3 training sessions in May 2018 at the Distribution Centre.
ii. The Applicant Ms Mekuria refused to attend the training.
iii. In May 2018 behavioural commitments were put in place between the parties to confirm adherence to expected standards and behaviours.
iv. The three respondents signed the behavioural commitment documents.
v. The Applicant Ms Mekuria refused to sign the behavioural commitment document.
vi. The Respondents’ outcome letters from the first investigation in September 2017 contain Directions, including behaviours consistent with MECCA Brands Code of Conduct and Bullying, Harassment & Discrimination Policy.
d. MECCA Brands is concerned the Applicant is not willing, or able, to participate constructively;
i. Ms Mekuria has refused to attend the ‘Respect in the Workplace’ training delivered by i HR;
ii. Ms Mekuria has refused to sign the behavioural commitment document;
iii. Ms Mekuria has stated the alleged bullying behaviour is continuing but has not raised concerns with MECCA Brands HR, DC Managers, or Jill Murphy from Worklogic for these additional concerns to be investigated;
iv. Mekuria has not made her requests of MECCA Brands clear during conferences or applications; and
v. Ms Mekuria has been afforded additional support from MECCA Brands through paid time off to attend investigation meetings, paid psychological support and paid translator support for investigation meetings, all of which have been declined.” 31
 The Employer’s response to the Applicant’s 31 August 2018 submissions (extracted above at paragraph ) is as follows:
“1.In response to point 1 of the Applicants submission, the Employer has taken several positive measures to eliminate the alleged bullying behaviour, and to re-educate the Respondents and the broader DC workforce on expected and appropriate standards of respectful behaviour.
2. In response to point 1.1 of the Applicants submission, the Employer refutes it has breached s.351 of Fair Work Act 2009.
3. In response to point 2.1 of the Applicants submission, the Employer refutes it has breached s.21 of the Occupational Health and Safety Act 2004.
4. In response to point 4 of the Applicants submission, the Employer refutes it has breached s.789 of the Fair Work Act 2009.
5. In addition, the Employer has offered to pay for Ms Mekuria to attend a psychologist of her choice, in addition to support provided by the EAP. Ms Mekuria has not taken this offer up.
6. In response to point 5 of the Applicants submission, the Employer refutes it has discriminated against Ms Mekuria on the basis of her ethnicity. The DC has, and actively encourages a diverse workforce. For example, the newly constructed DC had a prayer room built into the design to support our diverse workforce and being an inclusive employer.
7. The Employer notes it has offered paid translator / interpretor services to Ms Mekuria during each investigation process to enable us to better understand Ms Mekuria’s concerns, to ensure Ms Mekuria felt heard, and as a source of support. Ms Mekuria did not take up this offer.
8. In response to point 7.1 of the Applicants submission, the Employer refutes it has breached the Fair Work Act 2009 s.351 and has not discriminated against, or taken adverse action at any time against Ms Mekuria.
9. In response to point 8 of the Applicants submission, the Employer engaged an external training organisation, i HR in May 2018 to run behavioural training for all team members and managers called ‘Respect in the Workplace.’ Ms Mekuria is the only team member who has refused to attend this training.” 32
 Ms Hanley gave evidence that while she had not been made aware of the numerous allegations made by the Applicant until the day of the hearing; she considered that they were baseless. Ms Hanley indicated that the allegation against the employee known as Morena and her being aware of the police visiting Alem to do a welfare check was not possible. This was because “we as the Employer didn’t know that [FWC] had organised a police welfare check for Ms Mekuria…”. 33 Ms Hanley confirmed that the Employer had not arranged for a welfare check to be carried out at any stage.34
 Ms Hanley’s evidence at the hearing also included the following:
• That she refutes the allegations against an employee being a spy and stated that on no grounds would anyone at the distribution centre have organised anyone to spy on the Applicant. She was confident that the employee the Applicant claimed was spying on her was likely showing warmth and compassion and that the Applicant has misinterpreted that behaviour. 35
• That the allegations the Applicant has made against her personally are completely baseless and fabricated. She categorically denied the comments that were attributed to her on the day of the hearing by the Applicant. 36
• That she believes the Applicant will continue to make allegations notwithstanding the actions taken by the Employer as she does not have a sound understanding of what the definition of bullying is and has a tendency to misinterpret actions and comments of others. 37
• That the Employer has taken all of the Applicant’s allegations seriously and has investigated the allegations at every point including using the external investigator Worklogic and none of the alleged bullying behaviour has been substantiated. 38
 Ms Hanley said during the hearing, noting that Worklogic did not substantiate any of the alleged bullying claims, that she did not believe that the alleged bullying has been taking place that the Applicant believes is continuing to happen. In support of the Respondent parties’ position that the steps the Employer has taken completely eliminate a risk that the Applicant will continue to be bullied at work by the persons named in the application, Ms Hanley said:
“… Notwithstanding that, even if the alleged bullying had been happening, I believe that the employer - we have taken numerous steps, which completely eliminates the risk of any bullying continuing in future.
The most important thing, we’ve changed the work arrangements of two of the respondents named. As we went through earlier, Deb Kelso and Christine Mantacas work in different locations in the new distribution centre and so they have different break times; they do not come into contact whatsoever, and so I believe, based on that, that completely eliminates the risk of the bullying continuing. In addition, we have taken steps to educate the workforce, and not just the respondents and the applicant, but on expected standards of behaviour we engaged an external company and used their training material called “Respect in the workplace”; we ensured the content included the definition of bullying, harassment and discrimination and what behaviour would constitute that. So far Ms Mekuria is the only team member who has refused to attend that training, and in addition we have separately counselled all of the respondents, firstly, not to have any contact with Ms Mekuria, but secondly, on what the expected standards of behaviour are.
In May of this year we issued the “Behavioural Commitment” documents to each. That was setting out very clear instructions on what respectful behaviour would look like and what would be expected. All of the respondents signed to show their understanding of that document, and again Ms Mekuria refused to sign that document to agree, and secondly, the respondents have been issued directions on their behaviour twice, the first in the outcome letters following the first investigation, and then secondly through those behaviour commitments. So I believe based on all of those steps that we’ve taken, there is no risk of alleged bullying continuing to Alem, and I think the additional allegations that she has made this morning continues to show that Alem doesn’t have a coherent understanding of what bullying behaviour looks like, and that combined with a tendency to misinterpret and misrepresent what she perceives around her means that she continuously believes that this alleged bullying is happening.” 39
 During the hearing the Applicant put to Ms Hanley that she covered up parts of the investigation into the alleged bullying which was denied. 40 In relation to this Ms Hanley said the following:
“I have completed every investigation with absolute due diligence and procedural fairness when it comes to Ms Mekuria and that is why, based on the second investigation, I engaged an external independent investigator to reassure Ms Mekuria that even though she didn’t believe that I had ran the investigation fairly that we will now outsource that to give her a sense of comfort.” 41
 Further, Ms Hanley said:
“I’m confused and saddened that Ms Mekuria continues to make complaints of a cover up and that we have not done the right thing. I believe Ms Mekuria has been offered every opportunity of support. I believe that we have gone over and above to try and support Ms Mekuria at every opportunity and she doesn’t take us up on those offers of support. We have a genuine commitment to Alem and everyone involved in this case to close out this matter, and I refute any allegation from Alem that this has been covered up or not handled in the proper way.” 42
 In relation to the Employer’s submissions in response to the Applicant’s claims that she has been discriminated against in the workplace and the purpose of the reference to the prayer room, Ms Hanley clarified that:
“The purpose of my comment around the prayer room is to demonstrate that we actively encourage a diverse and inclusive workforce. We have team members from all different backgrounds, religions, races, ethnicities and we are very supportive of that, which is why we had a new purpose built distribution centre and we made a point of building a prayer room into that distribution centre to support all of our team members from different religions and ethnicities.” 43
 Finally, Ms Hanley she believed that the alleged bullying has not been continuing based on the outcome of the recent investigations, and due to all the measures that that the Employer has taken, she believes there is no ongoing risk of bullying to the Applicant. 44
 The Employer seeks that the application be dismissed pursuant to s.586 of the Act as they have implemented various initiatives which have had the effect that there is no longer a risk of the alleged bullying occurring.
 The initiatives are set out clearly in the 6 August 2018 letter from Ms Hanley on behalf of the Employer. The Applicant seeks orders be made as set out above. A substantive component of the orders sought is an order in the form of the Employer’s 6 August 2018 letter. The Applicant submitted she was pleased with the initiatives and during the hearing agreed that some of the initiatives had in fact been implemented. This includes that Ms Kelso has been permanently relocated to a different work team and location from her in April 2018 and that Ms Kelso’s break time has been changed to remove any overlap and that Ms Mantacas has been permanently relocated to a different work team and location from her effective 6 August 2018. Based on the materials before me, including the evidence provided by the Applicant and Ms Hanley, I am satisfied that the 7 initiatives outlined in the 6 August 2018 letter have been implemented by the Employer. 45 The Applicant maintains that the initiatives should be made the subject of orders. She also seeks further orders against people not named in the application including the supervisor, manager and it would appear the employee known as Morena.46
3.1 The power and discretion to make orders
 In Ms LP 47 Commissioner Hampton set out the relevant principles in relation to the power and discretion for the Commission to make orders as follows and I adopt them:
“ Section 789FF of the FW Act provides as follows:
“789FF FWC may make orders to stop bullying
(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.
(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.”
 The Fair Work Amendment Bill 2013 Revised Explanatory Memorandum explained the provisions as follows:
“New section 789FF – FWC may make orders to stop bullying
119. New subsection 789FF(1) empowers the FWC to make any order it considers appropriate to prevent a worker from being bullied at work by an individual or group of individuals. Before an order can be made, a worker must have made an application to the FWC under new section 789FC and the FWC must be satisfied that the worker has been bullied at work by an individual or group of individuals. There must also be a risk that the worker will continue to be bullied at work by the individual or group. Orders will not necessarily be limited or apply only to the employer of the worker who is bullied, but could also apply to others, such as co-workers and visitors to the workplace. Orders could be based on behaviour such as threats made outside the workplace, if the threats relate to work.
120. The power of the FWC to grant an order is limited to preventing the worker from being bullied at work, and the focus is on resolving the matter and enabling normal working relationships to resume. The FWC cannot order reinstatement or the payment of compensation or a pecuniary amount.
121. Examples of the orders that the FWC may make include an order requiring:
• the individual or group of individuals to stop the specified behaviour;
• regular monitoring of behaviours by an employer;
• compliance with an employer’s workplace bullying policy;
• the provision of information and additional support and training to workers;
• review of the employer’s workplace bullying policy.
122. New subsection 789FF(2) provides that, when considering the terms of the order, the FWC can take into account any factors that it considers relevant, but must have regard to the following (to the extent that the FWC is aware):
• any final or interim outcomes of an investigation into the matter that is being undertaken by another person or body;
• any procedures available to the worker to resolve grievances or disputes;
• any final or interim outcomes arising from any procedures available to the worker for resolving grievances or disputes.
123. These factors may be used by the FWC to frame the order in a way that has regard to compliance action being taken by the employer or a health and safety regulator or another body, and to ensure consistency with those actions.”
 Having regard to the provisions of the FW Act, there are two prerequisites to the making of orders in matters of this kind. Firstly, a finding that the worker has been bullied at work by an individual or a group of individuals; and secondly, that there is a risk that the worker will continue to be bullied at work by the individual or group concerned.
 Accordingly, where there is no risk that the applicant worker will continue to be bullied at work by the individual or group concerned, there is no prospect that the s.789FC application can succeed. Equally, where such a risk is found, the Commission may make an order preventing the worker from being further bullied by that individual or group. This means that any orders must be directed towards the prevention of relevant future unreasonable conduct and be informed by, but not necessarily limited to, the prior unreasonable conduct as found. However, any orders must deal with the actual future risk, based upon appropriate findings, and having regard to the considerations established by s.789FF(2) of the FW Act.
 Subject to the above, and the constraint that an order cannot be made requiring payment of a pecuniary amount, the making of an order is a matter of discretion to be exercised judicially in the circumstances of each case.
 Accordingly, the power of the Commission to grant an order is limited to preventing the worker from being bullied at work, and the focus is on resolving the matter and enabling normal working relationships to resume in a mutually safe and productive manner.
 Orders made in this jurisdiction are enforceable by the Courts as a civil remedy provision. This means that orders should not be made lightly and where they are made, they should be expressed in such a manner that clearly establishes enforceable obligations upon relevant identified parties.” 48 (Endnotes omitted)
3.2 Is there a risk of further bullying?
 As outlined above, the employer has taken a number of steps to remove or reduce the risk of bullying. However, the Applicant is of the view that bullying has continued, although as mentioned, this was primarily directed at persons other than those named in the application.
 In this matter, I have sought to test the proposition advanced by the Employer that there is not a risk of bullying occurring in the future. The hearing was set down to test that proposition and not to test the proposition as to whether or not bullying did in fact occur. I have made no finding as to whether or not bullying behaviour was perpetrated by the group of persons named.
 In its response to the application the Employer stated that in September 2017 the Applicant made a number of allegations against the persons named which included alleged bullying and harassment in, and outside of the workplace. An outcome of an investigation that took place in relation to the complaint was that the investigator “did have some concerns that there were some aspects of low level incivility at the DC”. The Employer issued a ‘Letter of Directions’ to the persons named and the Applicant “to ensure all behaviour was compliant with MECCA Brands policies and behavioural expectations”. 49 It is entirely possible that aspects of this behaviour did amount to bullying but I am not in this decision making any finding on that point. This decision is predicated on an assumption that, if the bullying conduct as alleged by the Applicant in respect of the group of individuals was in fact occurring, are the various initiatives that have been implemented by the Employer sufficient to satisfy me that there is not a risk that the individual will continued to be bullied at work by the group? In this matter, the group is Ms Debra Kelso, Ms Christine Mantacas and Ms Grace Chiruvu.
 I note that I have made this determination with reference to that group. As I have set out above, on the day of the hearing the Applicant made allegations about continued bullying behaviour which in one instance allegedly involved Ms Mantacas. However, this instance seemed to be directed at alleged behaviour of the supervisor during a discussion with Ms Mantacas. The other alleged bullying behaviour involved other people not named in this application and other incidents and behaviours that had not been formally raised with the Employer.
 It is important that all those involved in this matter understand that the Commission only has the jurisdiction to make an order to stop bullying where it is satisfied that a worker has been bullied at work by an individual or group and the Commission is satisfied there is a risk that the worker will continue to be bullied at work by the individual or group. As stated above, in this matter, the persons named that remain relevant to the application are Ms Debra Kelso, Ms Christine Mantacas and Ms Grace Chiruvu.
 It is also important to note that the anti-bullying jurisdiction is not designed to punish persons who have behaved unreasonably towards others in the past. Rather, it is centred on stopping future bullying behaviour and this was reinforced in the Full Bench decision in Re McInnes: 50
“ Importantly, a s.789FF order operates prospectively and is directed at preventing the worker being bullied at work. The Commission is specifically precluded from making an order requiring the payment of a pecuniary amount, hence it cannot make an order requiring a respondent to pay an amount of compensation to an applicant. The legislative scheme is not directed at punishing past bullying behaviour or compensating the victims of such behaviour. It is directed at stopping future bullying behaviour.” 51
 In a number of previous decisions the Commission has taken into account any change in circumstances in the workplace when considering whether there is a risk that the worker will continue to be bullied at work and/or whether it will exercise its discretion to issue an order or not. 52
 In Ms LP Commissioner Hampton considered circumstances where there had been a finding of past bullying, however the employer had put in place a number of changes designed to reduce the risk of bullying. The Commissioner determined this was an important consideration in determining whether or not orders should be made in that case. Relevantly, the Commissioner found:
“ In many, if not most cases, where a finding of bullying conduct is made and there is some future risk, preventative orders would be expected to follow. Such orders would, in appropriate cases, establish the appropriate basis for future mutually safe and constructive relationships.
 In this case, given the history of this particular matter, the extent of positive measures that the employer has subsequently put into place as a result of Ms LP’s applications, and my understanding of the workplace and the relationships that has developed from hearing this matter, I do not consider that the making of orders at this time would be conducive to the constructive resumption of working relationships.” 53
 In this case, the Employer has introduced a number of significant initiatives that have responded to the claims made by the Applicant. Not the least of these has been the relocation of work locations and the reorganisation of rest breaks in order to significantly reduce or eliminate the chance of contact between the persons named and the Applicant. However, the training of staff is also an important component of the initiatives undertaken by the Employer. The Applicant agreed during the hearing that the changes in relation to the relocation of Ms Kelso and Ms Mantacas had been implemented. The initiatives do not include any changes to the work location of Ms Chiruvu because the Applicant’s claim against Ms Chiruvu was no longer pressed and the Applicant confirmed during the hearing that Ms Chiruvu had never said anything to her and that she does not have any communication with her. 54 It is clear from the Applicant’s submissions that she welcomes the Employer’s initiatives and wants them made the subject of orders. However, there is simply no utility in making such orders in circumstances where the evidence is that the initiatives in the 6 August 2018 letter have been implemented.
 A significant issue of course is whether the bullying behaviour from the Group is continuing notwithstanding the implementation of these initiatives. I do not believe that it is. The further allegations involve conduct mainly attributed to the supervisor allegedly discussing the Applicant’s health conditions with Ms Mantacas. I note that the Applicant’s evidence is that this discussion involving Ms Mantacas took place on 30 July 2018. Ms Mantacas has been permanently relocated to a different work team and location from the Applicant effective 6 August 2018. Therefore, even if I was satisfied that this was bullying behaviour, I am satisfied that there is no risk that this will continue as Ms Mantacas has since been permanently relocated to a different location with different break times to the Applicant to ensure there is no contact between the parties.
 The claim that the Applicant’s supervisor was discussing the confidential information in relation to a police welfare check initiated by my chambers after a telephone call with my Associate was leaked by the Employer is hard to fathom as the Employer was not advised at all by my chambers of this event. Ms Hanley confirmed under oath she did not know at all about this occurring and I accept that evidence as truthful. The Applicant’s claim that the Employer leaked this information is clearly against the balance of probabilities and I do not accept it. Taking this into account, as well as what I consider to be a capacity of the Applicant to either misinterpret or misrepresent events in a manner that supports her belief that various people are engaging in bullying behaviour, led me to doubt the credibility of a great deal of the Applicants evidence. Taking this and all of the circumstances into account, I do not accept that there is a continued risk of bullying of the Applicant by the group.
 As to whether there is a risk of bullying from the sources identified by the Applicant at the hearing, this is a matter that the Applicant will need to deal with separately to this application. I do note however, that I doubt the veracity of the claims of the Applicant in respect to significant components of her evidence on the new claims. For instance, her claim that she was referred to as an “ape”, “chimpanzee” and “gorilla” by people who had completed training was rather vague as she did not refer to a specific incident or name the individual/s that referred to her in this manner. Further, I have serious doubts about her claim that the OH&S Manager was following and watching her, except in the changing room and bathrooms.
 As to the Applicant’s claims relating to the conduct of Ms Hanley, I do not accept them. Ms Hanley has presented throughout the proceedings as astute, highly capable and of high integrity. I strongly prefer her evidence as to her motivations and conduct over that of the Applicants. I reject the claims made by the Applicant in respect of the alleged conduct and motivations of Ms Hanley. Ms Hanley has done her utmost to eliminate the risk of bullying in respect of the group named and in my view she has succeeded in that endeavour.
 I am not satisfied that there is a risk that the Applicant will continue to be bullied at work by the persons named in her application pursuant to s.789FF(1)(b)(ii). Therefore, even assuming that the first jurisdictional prerequisite of s.789FF(1)(b)(i) was satisfied, there would not be jurisdiction to make an order to stop bullying.
 Accordingly, as there is no jurisdiction to make an order to stop bullying the application is dismissed. An order will be issued concurrently with this decision and the file will now be closed.
A Mekuria on her own behalf for the Applicant
R Hanley for the Respondent
Final written submissions:
18 September 2018
Printed by authority of the Commonwealth Government Printer
1 PN83 – PN85
2 Exhibit H1, Submissions by Employer, filed 3 September 2018 at [2.a]
3 Form F72 – Application for an order to stop bullying at Q2.2 and Witness Statement of Alem Mekuria, filed 13 March 2018 at  – 
4 Applicant’s submissions, filed 31 August 2018 at 
5 PN101 – PN109
6 PN76 – PN78
7 PN21 and PN155
8 Applicant’s submissions, filed 31 August 2018 at  – 
9 PN76 and Exhibit M2, nine-page document filed by the Applicant dated 18 September 2018 at p.1
10 Exhibit M2, nine-page document filed by the Applicant dated 18 September 2018 at p.2
12 PN66 – PN78 and Exhibit M2, nine-page document filed by the Applicant dated 18 September 2018 at p.2-3
13 Exhibit M2, nine-page document filed by the Applicant dated 18 September 2018 at p.4
14 PN169 – PN171
15 PN90 – PN92 and Exhibit M2, nine-page document filed by the Applicant dated 18 September 2018 at p.4
16 Exhibit M2, nine-page document filed by the Applicant dated 18 September 2018 at p.5
18 Exhibit M2, nine-page document filed by the Applicant dated 18 September 2018 at p.6 and PN86 – PN88
19 Exhibit H1, Submissions by Employer, filed 3 September 2018 at p.4 
20 PN113 and Exhibit M2, nine-page document filed by the Applicant dated 18 September 2018 at p.6-7
21 Exhibit M2, nine-page document filed by the Applicant dated 18 September 2018 at p. 7
23 PN109 – PN113
24 PN113 and Exhibit M2, nine-page document filed by the Applicant dated 18 September 2018 at p.8
26 PN98 – PN99
27 Exhibit M2, nine-page document filed by the Applicant dated 18 September 2018 at p.8-9
28 Exhibit M3, Psychologist report
29 Exhibit M1, four-page document filed by the Applicant dated 18 September 2018
30 Ibid at p.1- 4
31 Exhibit H1, Submissions by Employer, filed 3 September 2018 at 
32 Ibid at p.4  – 
36 PN157 – PN158
37 PN158 – PN159
39 PN159 – PN161
40 PN217 – PN220
45 PN101 – PN109 and PN149
46 Exhibit M2, nine-page document filed by the Applicant dated 18 September 2018 at p. 8-9
47 Ms LP  FWC 763
48 Ms LP  FWC 763 at  – 
49 Form F73 – Response from an employer/principal to an application for an order to stop bullying, filed 23 March 2018 at Q3.2
50 Re McInnes  FWCFB 1440
51 Re McInnes  FWCFB 1440 at 
52 See Re Fsadni  FWC 1286; Darren Lacey and Chris Kandelaars v Murrays Australia Pty Limited and Andrew Cullen  FWC 3136
53  FWC 763 at  – 
54 PN83 – PN85