DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Olusegun Victor Obatoki
v
Mallee Track Health & Community Services and Others
(AB2014/1169)

Application for an FWC order to stop bullying - Applicant no longer working with Respondents - no risk of continued bullying at work - application for order to stop bullying dismissed on the basis of no reasonable prospect of success.

[1] On 9 April 2014 Dr Olusegun Victor Obatoki (the Applicant) filed an application under s.789FC of the Fair Work Act 2009 (the Act) seeking an order to stop bullying in accordance with Part 6-4B of the Act. In his application, Dr Obatoki alleged that he had been bullied by Mallee Track Health and Community Services (Mallee Track), its Chief Executive Officer, Mr John Senior, and its Director of Nursing, Ms Pamela Vallance (together the Respondents). On 11 August 2014 the Fair Work Commission (the Commission), determined to add a further person, the President of the Board of Mallee Track, Mr Keith Erhardt, as a Respondent 1. The decision to add Mr Erhardt as a Respondent followed a request made by Dr Obatoki (see also paragraph [6] below).

Background

[2] Dr Obatoki is a medical practitioner who provided medical services to Mallee Track under a services contract between Mallee Track and a company, Dove Investments (Australia) Pty Ltd, of which Dr Obatoki is the sole director and secretary and the sole provider of services. Although not directly relevant to this application, it is worth noting that a number of contractual issues between the parties were the subject of separate mediation by a third party earlier this year.

[3] In their Form F73 - Response from an employer/principal to an application to stop bullying, submitted on 17 April 2014, the Respondents expressed a number of jurisdictional objections to the application.

[4] The application was the subject of a conference on 28 May 2014. The conference concluded on the basis that the parties would have further discussions regarding revised hours of work/working arrangements for Dr Obatoki and the revised remuneration arrangements that may flow from that. At that conference the Commission made it clear that, were the matter to be relisted, it would need to deal with the jurisdictional issues raised by the Respondents prior to considering whether or not to make an order under s.789FC of the Act.

[5] The discussions which ensued from the conference failed to result in a mutually acceptable resolution.

[6] The application was then listed for a mention and programming teleconference on 6 June 2014. Two further issues were dealt with at that teleconference. First, a request by Dr Obatoki for permission to amend his application to add an additional respondent, Mr Erhardt, and second, the Respondents’ request to be represented by a lawyer. In respect of the first issue, I decided to defer consideration of the request pending determination of the Respondents’ jurisdictional objections. As to the second issue, I determined to grant permission to the Respondents to be represented by a lawyer 2. That decision was unsuccessfully appealed by Dr Obatoki3.

[7] The application was subsequently listed for a jurisdictional conference/hearing on 23 July 2014.

[8] At the conference on 23 July 2014 the Respondents did not press their jurisdictional objections. The conference concluded on the basis that the parties would consider a number of options aimed at addressing some of the underlying issues. However, none of these options proved acceptable to the parties and the matter was again listed for teleconference on 6 August 2014 for directions regarding the substantive hearing of the application.

[9] Hearing of the application commenced on 3 September and continued on 15 October 2014. After the latter hearing, the matter was awaiting further listing when on 6 November 2014 the Respondent’s legal representative, Mr Tallboys, sent an email to the Commission advising that:

“... on 29 October 2014 Mallee Track Health and Community Services had terminated its service contract with Dove Investments (Australia) Pty Ltd. As a consequence, the Applicant is no longer working at the Mallee Track Medical Clinic or providing on call services.

Given this development is relevant to the Commission’s power to make an order to stop bullying, we believe it appropriate to draw this to your attention.”

[10] A teleconference of the parties was convened on 10 November 2014 where it was not disputed that Mallee Track had terminated the contract of Dove Investments (Australia) Pty Ltd as of 29 October 2014 or that Dr Obatoki was no longer working at the Mallee Track Medical Clinic or providing on call services to Mallee Track. In those circumstances, the Commission informed the parties that it has no power to issue an order as one of the threshold requirements for an order under s.789FF of the Act, i.e. there is a risk that the worker will continue to be bullied at work, no longer existed. The Commission indicated that it would therefore give consideration to dismissing the application.

[11] In subsequent developments, Dr Obatoki wrote to the Commission on 24 November 2014 inquiring as to the status of the Commission’s consideration and foreshadowing his intention to pursue the matter further by any means available to him.

The statutory framework

[12] The relevant provisions of the Act are set out below.

“789FE FWC to deal with applications promptly

(1) ...

(2) However, the FWC may dismiss an application under section 789FC if the FWC considers that the application might involve matters that relate to:

(a) Australia’s defence; or

(b) Australia’s national security; or

(c) an existing or future covert operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police; or

(d) an existing or future international operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police.

Note: For another power of the FWC to dismiss applications under section 789FC, see section 587.

789FF FWC may make orders to stop bullying

(1) If:

(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.

587 Dismissing applications

(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.

(2) ...

(3) The FWC may dismiss an application:

(a) on its own initiative; or
(b) on application.” [Underlining added]

Consideration of the issues

[13] In short, where an application is made under s.789FC of the Act, the Commission has the discretion under s.789FF of the Act to make any order it considers appropriate (other than an order requiring the payment of a pecuniary amount) to prevent the worker from being bullied at work. However, the Commission can only exercise that discretion where it is satisfied that:

(i) the worker has been bullied at work; and

(ii) there is a risk that the worker will continue to be bullied at work.

[14] In this case there is no dispute that Dr Obatoki has made an application under s.789FC of the Act. The question of whether or not Dr Obatoki has been bullied at work is yet to be determined by the Commission, with that aspect only part-heard at this stage. However, given that Dr Obatoki is no longer working at the Mallee Track Medical Clinic or providing on call services, there is clearly no risk that Dr Obatoki will continue to be bullied at work by the Respondents.

[15] As such, the question becomes whether the Commission should continue to deal with the application or alternatively dismiss the application. To continue to deal with the application in circumstances where the Commission does not have the power to make an order because one of the threshold requirements can no longer be met would be an unnecessary and unreasonable impost on the parties. Accordingly, consideration needs to be given to dismissing the application. I turn now to that issue.

[16] Section 789FE(2) of the Act sets out some of the circumstances in which the Commission may dismiss an application made under s.789FC of the Act. None of those circumstances exist in this case. However, the legislative Note at s.789(2) of the Act states that “For another power of the FWC to dismiss applications under section 789FC, see section 587.”

[17] Section 587(1) of the Act sets out a number of grounds on which the Commission may dismiss an application. The most relevant in the context of the matter currently before the Commission is set out at s.587(1)(c), i.e. that the application has no reasonable prospects of success. Further, s.587(3)(a) of the Act provides that the Commission may dismiss an application on its own initiative.

[18] The meaning and application of the phrase “no reasonable prospects of success” was canvassed by Deputy President Gostencnik in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines (ANZ) 4. The circumstances in ANZ are similar to those in the matter before me in that the applicant in that case, Mr Shaw, was dismissed prior to his application under s.789FC of the Act being determined by the Commission. The implications of this were set out in Deputy President Gostencnik’s decision in the following terms:

“[16] ... 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.

[17] 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.”

[19] Given the similarity of the circumstances in this matter and ANZ, I see no reason to depart from the approach adopted by Deputy President Gostencnik in ANZ and will dismiss the application on my own initiative.

Conclusion

[20] For the reasons outlined above I have decided to dismiss Dr Obatoki’s application on the basis that it has no reasonable prospects of success. An order to that effect will be issued with this decision.

[21] It is worth noting, that the decision to dismiss Dr Obatoki’s application does not preclude Dr Obatoki, should he return to work at Mallee Track at some future point, from making another application under s.789FC subject to the jurisdictional facts being established in relation to that application.

Appearances:

O. Obatoki on his own behalf.

B. Tallboys for the Respondent.

Hearing details:

2014.

Melbourne (telephone conference):

November 10.

 1   PR554136

 2   PR552379

 3   [2014] FWCFB 4297

 4   [2014] FWC 3408 at paragraphs [8]-[11]

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