Ms SW filed an anti-bullying matter with the FWC which failed due to the employer successfully arguing that it was not a constitutional corporation.  Ms SW was employed by a public school under the control of the Western Australian Department of Education (the “Department”).

The Department then sought costs against Ms SW[1].

In rejecting the claim for costs, Commissioner Hampton stated:

“I could be satisfied that it should have been reasonably apparent to Ms SW that a potential jurisdictional hurdle might arise concerning her application. However, the relevant question is whether it should have been reasonably apparent to Ms SW that her application had no reasonable prospects of success.”

In turning to the jurisdictional issue the Commissioner was of the view:

“Although as general rule, it might be said that employees of State Government Departments are not covered by the anti-bullying jurisdiction of the FW Act, the jurisdictional matter actually required consideration as to the corporate or other status of the applicant’s workplace. That is, the identity of the applicant’s employer may not always be decisive; rather it is a question as to who is conducting the workplace concerned and whether it is a constitutionally-covered workplace. This makes these matters more complex than might initially appear.

‘The fact that the WA Department operated with an ABN was a consideration but ultimately not decisive. Further, all of the other contentions advanced by Ms S.W. concerning the nature of her employer and workplace ultimately failed. However, the operation of the anti-bullying jurisdiction of the Commission is relatively new, the potential application of the laws in similar circumstances had not been previously determined, and relatively complex legal issues were ultimately involved given the need to ascertain the nature of the workplace concerned.”


In this matter it would appear that Ms SW was fortunate that the Commissioner gave her the benefit of the doubt – mainly due to the lack of precedent with the new anti-bullying laws.  However, having won the case, it may be a question of why the State pursued costs against one of its own employees.

Whatever the motivation in this matter (from both sides) it illustrates the importance of all managers and employees being aware of their rights and obligations, through training, education, policies and codes of conduct.

From a HR practitioner’s point of view, whilst it could be understood that the motivation of employers to “win” in these matters, one could wonder if this is a case of winning the battle and losing the war.  Put more plainly, the relationship between the employee and her employer will be strained at best.  And in this matter, here is a teacher who ought to be focused on the education of children, not her treatment (perceived or real) whilst at work.

[1] Ms SW, AB2014/1135 [2014] FWC 4476, Hampton C, Adelaide, 7 July 2014

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:


  • General HR and IR advisory service.
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