FWC 3852
FAIR WORK COMMISSION
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Mr M T
MELBOURNE, 23 JUNE 2014
Application for an FWC order to stop bullying.
 On 16 January 2014 Mr T (Applicant) made an application under section 789FC of the Fair Work Act 2009 (Act) for an order to stop bullying.
 On 22 January 2014, the employer filed a Form F73 - Response from Employer/Principal to an Application for an Order to Stop Bullying (Form F73). The covering email noted that the Form F73 was filed on behalf of each of the persons named in the application as individual respondents. The Form F73 also noted that one of the individual respondents was no longer employed by the respondent employer.
 The matter was listed for a conference on 5 February 2014. The Applicant was accompanied by a union support person. The employer was represented by its Employee Relations Manager. The conference on 5 February 2014 was also attended by each of the individual respondents named in the application (other than the former employee).
 During the conference on 5 February 2014 it became apparent to the Commission, as presently constituted, that there existed some conduct issues the employer wanted to discuss with the Applicant, but which it had not previously been able to discuss with the Applicant. It was further apparent that the conduct issues the employer wanted to discuss with the Applicant were relevant to how the employer might respond to proposals to settle the anti-bullying application.
 In order to facilitate a meeting between the employer and the Applicant in a safe environment for the Applicant to respond to the conduct issues the employer wanted to discuss with the Applicant, the Commission made its premises available to the parties on 20 February 2014. At this meeting only the employee relations representatives of the employer, the Applicant and his union support person were in attendance.
 On 13 February 2014, at the direction of the Commission, the employer filed a chronology of events.
 Following the meeting on 20 February 2014 the matter remained unresolved. Therefore, the employer was directed to provide an update on the status of the matter within 7 days.
 On 28 February 2014, the employer provided the Commission with copies of correspondence it had sent to the Applicant. Relevantly there was a letter dated 26 February 2014. It outlined a summary of findings and concerns the employer had about the Applicant’s conduct. It advised the Applicant he was required to attend a meeting at 11.00am on 3 March 2013. It stated “At this meeting you will be required to provide me with reasons as to why your employment should not be terminated as a result of the above concerns.”
 On 4 March 2014 the Applicant wrote to the Commission requesting the anti-bullying matter be relisted. It was subsequently relisted for conference on 14 March 2014.
 On 6 March 2014 the employer forwarded to the Commission a copy of a letter addressed to the Applicant terminating his employment with effect from 6 March 2014.
 Consequently, the conference listed for 14 March was cancelled.
 On 7 March 2014 the Commission wrote to the Applicant requesting that, in light of the termination letter, he file a Notice of Discontinuance in respect of his anti-bullying application.
 On 14 March 2014 the Applicant commenced proceedings pursuant to section 394 of the Act.
 On 17 April 2014 the Commission left a voice to text message on the Applicant’s mobile telephone number.
 On 2 May 2014 the Commission left a further voice to text message with the Applicant. On the same day the Applicant called the Commission and was requested to file a Notice of Discontinuance. A blank Notice of Discontinuance was sent to the Applicant by email.
 On 8 and 13 May 2014 the Commission left two further voice to text messages with the Applicant. Also on 13 May 2014 the Commission sent a further email to the Applicant attaching a Notice of Discontinuance and advising him that if he did not file a Notice of Discontinuance the Commission may issue a decision in his matter.
 On 14 May 2014 the Applicant was sent a Notice of Discontinuance by post.
 To date the Commission has not received a Notice of Discontinuance from the Applicant.
 In a recent decision of this Commission, Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines, 1 (Shaw) Deputy President Gostencnik observed:
“ 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 2 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. 3
 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.
 Like in Shaw’s case, the relevant circumstance that has changed since the Applicant made his application on 16 January 2014 is that he has been dismissed from his employment with the employer. The employment relationship has ended.
 Even if the Commission is satisfied that the Applicant reasonably believed he was bullied at work within the meaning of section 789FD of the Act, the Commission can only make an order to stop the bullying if it is satisfied there is a risk that the Applicant will continue to be bullied at work. 4
 It is common ground that the employment relationship has ended. As such there cannot be a risk of the Applicant being bullied at work by the individuals identified in his application because he is no longer at work.
 In necessarily follows that the Commission, as presently constituted, does not have the power to make an order to stop bullying. The Commission is satisfied the Applicant’s application has no reasonable prospect of success. Consequently, the Commission exercises its discretion under section 587 of the Act to dismiss the Applicant’s application for want of jurisdiction.
 An order dismissing the application will be issued concurrently with this decision.
1  FWC 3408
2 (2010) 241 CLR 181
3 Ibid at  - 
4 Section 789FF(1)(b)(ii)
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