[2015] FWCFB 1661
The attached document replaces the document previously issued with the above code on 27 March 2015 has had paragraph numbers amended and typographical errors in the preamble.
Shomaice Zowghi
Associate to Vice President Catanzariti.
Dated 27 March 2015.
| [2015] FWCFB 1661 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
VICE PRESIDENT CATANZARITI |
SYDNEY, 27 MARCH 2015 |
Appeal against decision [2014] FWC 8828 and Order [PR558708] of Deputy President Kovacic at Melbourne on 5 December 2014 in matter number AB2014/1169.
[1] This is an appeal by Dr Olusegun Victor Obatoki (the Appellant) against a decision 1 (Decision) and an order2 (Order) of Deputy President Kovacic in relation to an application that the Appellant made under s.789FC of the Fair Work Act 2009 (the Act) seeking an order to stop bullying.
[2] The Deputy President dismissed the Appellant’s application pursuant to s.587 of the Act on the basis that the application had no reasonable prospects of success.
[3] At the hearing of the appeal on 11 March 2015, the Appellant was not represented. Mr Tracey of Counsel, sought permission to appear on behalf of the Respondents. The Appellant made no submissions in opposition. Permission was granted to Mr Tracey pursuant to s.596(2)(a) of the Act, on the basis that, although the matter was not significantly complex, it would be dealt with more efficiently if permission to be represented was granted. Further, permission was also granted on the basis that the issues raised on appeal had not been considered by a Full Bench.
Background
[4] The Appellant was employed by the Respondents as a medical practitioner who provided medical services to Mallee Track Health and Community Services (Mallee Track) under a services contract between Mallee Track and a company, Dove Investment (Australia) Pty Ltd (Dove Investments). The Appellant is the sole director and secretary of Dove Investments and the sole provider of services.
[5] On 9 April 2014 the Applicant filed an application under s.789FC of the Act seeking an order to stop bullying in accordance with Part 6-4B of the Act. In his application, The Appellant alleged that he had been bullied by 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.
[6] Hearing of the application commenced on 3 September 2014 and continued on 15 October 2014. Following the hearing, the matter was awaiting further listing. On 6 November 2014 the Respondent’s legal representative sent an email to the Commission advising that on 29 October 2014, Mallee Track had terminated its service contract with Dove Investments. As a consequence, the Appellant was no longer working at the Mallee Track Medical Clinic or providing on call services. A subsequent teleconference was held on 10 November 2014 where it was not disputed that Mallee Track had terminated the contract with Dove Investments and Dr Obatoki was no longer working at the Mallee Track Medical Clinic.
[7] In circumstances where the employment relationship had ceased during the hearing of an application for an order to stop bullying, the question before the Deputy President then became whether the Commission had the power to continue to deal with the matter and make an order to stop bullying. His consideration of the issue and the relevant statutory framework is concisely summarised in the decision below as follows:
“[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). 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.
[8] An order was subsequently issued on 5 December 2014 by the Deputy President that the application lodged by Dr Obatoki under s.798FC of the Act be dismissed.
Permission to Appeal
[9] Section 604(1) of the Act requires the permission of the Commission in order to appeal a decision made by the Commission. In order to grant the Appellant permission to appeal, the Full Bench must be satisfied that it is in the public interest to do so. 3 In GlaxoSmithKline Australia Pty Ltd v Colin Makin4 a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“...the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...”
[10] We are satisfied that this matter raises issues of importance and general application and thus enlivens the public interest. The proper approach to the application of s789FF of the Act in circumstances where the employment relationship has ceased is an issue that has previously only been considered by single member authorities. 5. We are of the view that this is particularly warranted given that the application of this provision will go to issues of the Commission’s jurisdiction.
[11] Permission to appeal is granted.
The Appeal
[12] The grounds of appeal as outlined in the Appellant’s written submissions are as follows:
“1. The termination of an employment or contract of service does not automatically mean an application does not have any reasonable prospects of Success in all cases. Indeed the Act does not state that.
2. The Commission have the powers to issue an order before a matter is fully heard when it becomes obvious that bullying act is ongoing. Alternatively, an interim order can be given when it is evinced that bullying is ongoing to prevent the sufferings of the applicant.
3. The commission has the powers to withdraw a permission granted a legal representative when it becomes evidence that the legal representative is not making the procedure efficient.”
[13] At the appeal hearing, the Appellant made a further oral submission that pursuant to s.789FF(1), the Deputy President had the power to make other orders such as recommendations or referrals. The Appellant submitted that in addition to stop bullying orders, the Deputy President had the power “to make a recommendation and to refer matters to appropriate authorities to carry out supervisory role of certain Acts, for instance, the Work and Health Safety Act” 6.
[14] In the Respondents’ written submissions, it is said that only ground one of the Appellant’s submissions is remotely relevant to the decision below and we agree with this position. In respect of ground one, the Respondents characterised the statutory framework of s.790FC and s.789FF in much the same way as the Deputy President:
“On a plain and natural reasoning of the provision, it is clear that there are two jurisdictional prerequisites of which the Commission must be satisfied before it has the power to make an order to stop bullying: that the worker making the application under s 790FC of the FW Act has been bullied at work by an individual or group of individuals: and, relevantly, that there is a risk that the same worker will be continued to be bullied at work by the individual or group.
When the Appellant ceased to be engaged by Mallee Track and ceased working at its premises or providing services for it (which required some dealings between the Appellant and the Respondents), there was, as the Deputy President found (Decision at [14]), no risk that the Appellant “will continue to be bullied at work by the Respondents”.
Having considered the undisputed fact of the termination of the Appellant’s services and asked himself whether the Appellant’s application has reasonable prospects of success - all of which he did in accordance with the Act - the Deputy President held that there were no reasonable prospects that the application could succeed, in that an order to stop bullying could be made, because the Commission could not be satisfied that the second of the two jurisdictional prerequisites could be met.”
[15] Mr Tracey of counsel also made oral submissions in reply to the Appellant’s submissions regarding the power of the Commission to make recommendations or referrals pursuant to s.789FF(1). Mr Tracey submitted that making an order (regardless of whether it was a stop bullying order) a recommendation, a referral or otherwise, was not an option open to the Deputy President because the second limb of s 789FF must be satisfied to enliven the jurisdiction. Given that the second jurisdictional prerequisite was not met, an order of any kind could not be made by the Deputy President.
Consideration
[16] We consider that the Deputy President correctly held that there were no reasonable prospects that the application could succeed. The Commission could not be satisfied that the second of the two jurisdictional prerequisites of s.789FF(1) could be met. There was no evidence before the Commission indicating that there would be a risk that the Appellant would continue to be bullied at work once he ceased to be engaged by Mallee Track and ceased working at its premises or providing services for it. It necessarily follows that no order pursuant to s.789FF(1) could be made and the application had no reasonable prospects of success.
[17] It is worth noting, as did the Deputy President in the decision below 7, that there is nothing to preclude the Appellant, 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.
[18] Regarding the oral submissions made by the parties in respect of the Commission’s power conferred by s.789FF(1) to make orders including those containing recommendations and referrals, for the avoidance of doubt, we note that s.789FF(1) confers upon the Commission a wide discretion in relation to the types of orders it can make (“any order it considers appropriate”). It is not simply stop bullying orders that can be made by the Commission but also orders which have a rational connection to the jurisdiction. The only prohibition on the types of orders that can be made is pecuniary orders, that is, orders for monetary compensation to be payable to an application.
[19] The Explanatory Memorandum to the Fair Work Amendment Act 2013 8 provides some examples of the orders that the Commission may make::
[20] The broad discretion of the Commission to make different types of orders was illustrated in Applicant v Respondent PR548852 9 where Senior Deputy President Drake made orders by consent placing the following restrictions upon the employee who was the alleged bully:
“1. Shall complete any exercise at the employer’s premises before 8.00 am.
2. Shall have no contact with the applicant alone.
3. Shall make no comment about the applicant’s clothes or appearance.
4. Shall not send any emails or texts to the applicant except in emergency circumstances.
5. Shall not raise any work issues without notifying the Chief Operating Officer of the respondent, or his subordinate, beforehand.”
[21] However, we note that the power to make such orders will only be enlivened once the two limbs of s.789FF(1) have been satisfied, that is, that the worker making the application has been bullied at work by an individual or group of individuals: and that there is a risk that the same worker will be continued to be bullied at work by the individual or group. Given that the second limb was not satisfied in this matter, the Deputy President did not have the power to make any of the types of orders contemplated by s.789FF.
Conclusion
[22] We have granted permission to appeal and for the reasons outlined above we find no error in the decision of the Deputy President and accordingly the appeal is dismissed.
VICE PRESIDENT
Appearances:
O V Obatoki on his own behalf.
J R M Tracey of Counsel for the Respondents.
Hearing details:
2015
Sydney and Melbourne (video hearing)
March 11.
1 Obatoki v Mallee Track Health & Community Services and Others [2014] FWC 8828.
2 Obatoki v Mallee Track Health & Community Services and Others [PR558708].
3 Fair Work Act 2009, s.400(1).
4 [2010] FWAFB 5343 at [27].
5 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank and Another [2014] FWC 3408; Ravi v Baker IDI Heart and Diabetes Institute Holdings Limited and Others [2014] FWC 7507; G.C. [2014] FWC 6988; Hayward v Department of the Environment and Others [2014] FWC 9444; P.K. [2015] FWC 562; Jackson [2015] FWC 402.
6 Transcript, 11 March 2015, Sydney and Melbourne, PN50.
7 Obatoki v Mallee Track Health & Community Services and Others [2014] FWC 8828 at [21]
8 Fair Work Amendment Act 2013 at [120]
9 (21 March 2014)
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