FWC 3408
FAIR WORK COMMISSION
EX TEMPORE DECISION
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines
DEPUTY PRESIDENT GOSTENCNIK
MELBOURNE, 26 MAY 2014
Application for an FWC order to stop bullying; Employee dismissed after application lodged; Application to dismiss because application for order to stop bullying has no reasonable prospect of success; No risk of continued bullying at work; Application to dismiss upheld; Application for order to stop bullying dismissed
 This is an edited version of a decision delivered in transcript on 9 May 2014. Mr Mitchell Shaw has applied under s. 789FC of the Fair Work Act 2009 (the Act) for an order to stop bullying. In order to facilitate the hearing and determination of that application I made directions on 1 April 2014 for the filing and exchange of materials on which each party proposed to rely. I set the matter down for hearing with an estimate of two days commencing 14 May 2014. Mr Shaw was, until the termination of his employment on 11 April 2014, employed by the Australia and New Zealand Banking Group Ltd (ANZ). ANZ was also the employer of persons against whom allegations of bullying have been made by Mr Shaw in his application.
 On 22 April 2014, ANZ applied pursuant to s. 587(3) of the Act for an order under s. 587(1) dismissing Mr Shaw’s application. In order to deal with that application, I made directions requiring Mr Shaw and ANZ to file an exchange of submissions. I have read and considered those submissions and have taken them into account in the decision that I have made. I also gave the parties an opportunity to make further submissions at the hearing on 9 May 2014, which they have done, and which I have also taken into account.
 ANZ’s application for dismissal is made on the basis that Mr Shaw’s application for an order to stop bullying has no reasonable prospect of success. This is so because since Mr Shaw’s dismissal on 11 April 2014 there ceased to be a risk that Mr Shaw will continue to be bullied at work by any individual or group. Mr Shaw has advanced a number of grounds in opposition to ANZ’s application for dismissal. His principal argument is that his application should be permitted to continue because the termination of his employment whilst on approved leave was, to use his description, “invalid”. Mr Shaw refers to a number of decided cases in support of his proposition but, as I indicated in my earlier exchange with Mr Shaw on transcript, those authorities are neither on point, nor do they assist in determining the relevant question that I have to answer.
 Mr Shaw also complains about the payment he received in lieu of notice and that he has been deprived of the full benefit of the period of his parental leave. Mr Shaw also says that the termination of his employment, while he was the primary caregiver, resulted in a diminution of his capacity to seek alternative employment during the notice period. Mr Shaw also submits that ANZ’s requirement that he respond to particular allegations that have been made against him and which were relied upon to support the termination of his employment whilst he was on approved leave interfered with his right to take leave and to enjoy that leave and had a deleterious effect on his wellbeing.
 None of the matters that are advanced by Mr Shaw have any bearing upon the application for dismissal by the ANZ. Mr Shaw’s complaint that his dismissal was invalid is essentially an argument that his dismissal was unlawful or was otherwise in breach of the contract of employment. Whether or not that is the case is a matter that will need to be determined elsewhere but, even if the allegation is ultimately accepted, Mr Shaw’s dismissal, unlawful as it may have been, ended the employment relationship and the employment on 11 April 2014.
 It is not, for example, being contended by Mr Shaw that ANZ engaged in conduct that amounted to a repudiation of the contract of employment, that Mr Shaw refused to accept the repudiation, and that he elected to keep the contract of employment on foot. Even if such a contention were to be advanced, there is no material before me from which it might be concluded that Mr Shaw in fact made such an election and that by his conduct he continued to treat the contract of employment as ongoing. Nor is there any suggestion that he notified ANZ that that was what he was doing.
 To the contrary, on 5 May 2014 Mr Shaw lodged a general protections application under s. 365 of the Act in which he alleges that adverse action in the form of dismissal occurred on 11 April 2014 and that the adverse action was taken by ANZ for reasons that included that he had made a complaint about his employment and that he had made an application for an order to stop bullying. It seems to me that Mr Shaw has accepted that there has been a dismissal and has acted accordingly. To the extent that it is necessary that I find that to be the case, I so find and I am satisfied that the employment relationship between Mr Shaw and ANZ has ended. I express no view as to whether the termination of employment was lawful or otherwise and it is not necessary for me to do so.
 Section 587 of the Act provides a discretion to dismiss an application if, inter alia, the application has no reasonable prospect of success. Let me first deal with the meaning and application of the phrase, “has no reasonable prospect of success”. Without traversing in any great detail the authorities that have considered the proper application and meaning of the phrase, “no reasonable prospect of success,” it is sufficient for me for present purposes to make the following observations. A conclusion that an application has no reasonable prospect of success should only be reached with extreme caution and in circumstances, for example, where an application is manifestly untenable or is groundless or is so lacking in merit or substance as to be not reasonably arguable. But these examples do not provide an exhaustive description of when a particular application has no reasonable prospect of success.
 Secondly, I am mindful of that which the majority (Hayne, Crennan, Kiefel and Bell JJ) of the High Court of Australia in Spencer v The Commonwealth of Australia 1 had to say when their Honours considered the meaning of the phrase, “no reasonable prospect,” in the context of s. 31A of the Federal Court of Australia Act 1976. In that case their Honours said the following:
In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described with or without the additional intensifying epitaphs like “clearly”, “manifestly” or “obviously” as “frivolous”,” untenable”, “groundless” or “faulty” but none of these expressions alone or in combination should be understood as providing a sufficient chart of the metes and bounds of the powers given by section 31A nor can the content of the word “reasonable” in the phrase, “no reasonable prospect” be sufficiently, let alone completely illuminated by drawing some contrast with what would be a frivolous, untenable, groundless or faulty claim.
Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under section 31A if, and only if, satisfied that there is no reasonable prospect of success. Of course it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly but the elucidation of what amounts to no reasonable prospect can best proceed in the same way as content has been given through a succession of decided cases to other generally expressed statutory phrases such as “just and equitable” when it is used to identify the ground for winding up of a company. At this point in the development of the understanding of the expression and its application, it is sufficient but important to emphasise that the evident legislative power as revealed by the text of the provision would be defeated if its application is read as confined to cases of a kind which fell within the earlier different procedural regimes. 2
 In Spencer the High Court was saying that one should not make the mistake of only concluding that a proceeding has no reasonable prospect of success if it is frivolous, untenable, groundless or faulty and that full expression should be given to that phrase. It seems to me that the observations in Spencer are apt to apply to the construction and application of the phrase “has no reasonable prospect of success” as it appears in s. 587 of the Act.
 Thirdly, I would also observe that the answer to the question whether a particular application has no reasonable prospect of success in the context of s. 587 may differ depending on the time at which the question is asked. This, it seems to me, is evident from the word “has”. So it is that an application at its inception may have some reasonable prospect of success but, as circumstances change during the course of dealing with an application, those changed circumstances might have the result that an application which once had some reasonable prospect of success no longer has a reasonable prospect of success.
 In this case the relevant circumstance that has changed since Mr Shaw made his application on 11 April 2014 is that he has been dismissed from his employment by the ANZ. The employment has ended. So far as is relevant for present purposes the question that must be answered is, having regard for the statutory provisions contained in Part 6-4B of Chapter 6 of the Act, the provisions under which Mr Shaw’s application is made, and taking into account the facts as presently known, those that are not disputed, and taking Mr Shaw’s case at its highest, does Mr Shaw’s application have a reasonable prospect of success? Put simply, is there some reasonable prospect that Mr Shaw will be able to persuade me to make an order under s. 789FF? I now turn to consider that question.
 Section 789FC of the Act provides that a worker who reasonably believes that he or she has been bullied at work may apply to the Commission for an order under s. 789FF. Section 789FB sets out that which is meant by the phrase “bullied at work”. That a person who has made an application has been bullied at work by an individual or a group of individuals is one of the matters about which I must be satisfied before considering whether to exercise my discretion to make an order to stop bullying under s. 789FF.
 For the purposes of ANZ’s application to dismiss I am prepared to assume without deciding that Mr Shaw will be able to satisfy me at the hearing of his application that he was bullied at work by an individual or group of individuals. I am also prepared to assume without deciding that ANZ will not be able to satisfy me that the actions about which Mr Shaw complains were reasonable management actions, carried out in a reasonable manner. But those matters are not the only matters about which I must be satisfied.
 As s. 789FF(b) makes clear, I must be satisfied not only that Mr Shaw has been bullied at work by an individual or group of individuals but also that there is a risk that he will continue to be bullied at work by that individual or group of individuals. Therein lays the difficulty for Mr Shaw. It seems to me that I have no power to make an order to stop bullying unless I can be satisfied relevantly that there is a risk that at work Mr Shaw will continue to be bullied by the individual or group of individuals identified in his application.
 It is clear that Mr Shaw is no longer employed by ANZ. The employment relationship has ended. That Mr Shaw is taking steps to seek a remedy in relation to his dismissal and that that may result in reinstatement at some point in the future does not have a bearing on the question that I must answer and is speculative and uncertain. It seems to me clear that there cannot be a risk that Mr Shaw will continue to be bullied at work by an individual or group of individuals identified in his application because Mr Shaw is no longer employed by ANZ and therefore is no longer at work.
 It necessarily follows that I do not have power to make an order to stop bullying and, as a consequence, I am satisfied that Mr Shaw’s application has no reasonable prospect of success. I see no reason in the circumstances why I should not exercise my discretion to dismiss Mr Shaw’s application given my finding and I do so. An order dismissing Mr Shaw’s application has been made separately in PR550413. I would observe that, if as a consequence of Mr Shaw’s general protections application or any other remedy that he seeks, he is reinstated to his former position or another position with ANZ and at that point he has concerns about a risk of being bullied at work, it seems to me, and the ANZ seem to accept that he will be at liberty to make a fresh application at that time. That he has made this application and that it has been dismissed will not operate as a bar to any future application if the jurisdictional facts can be established in relation to that application.
M. Shaw on his own behalf
D. Natenzon for the Respondents
Brisbane/Melbourne by Videolink
1 (2010) 241 CLR 181
2 Ibid at  - 
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<Price code C, PR550938>