[2017] FWC 4618
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Shaneen Coulson
(AB2017/323)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 5 SEPTEMBER 2017

Application for an FWC order to stop bullying – Respondents applied to have the application dismissed on the basis that it is frivolous or vexatious or has no reasonable prospect of success and for orders prohibiting or restricting the publication of the names and addresses of persons appearing at the hearing of the application – Respondents’ applications dismissed.

[1] On 16 June 2017 Ms Shaneen Coulson (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 her application, Ms Coulson alleged that she had been bullied by a number of senior managers at the Department of Environment and Energy (the Department). The Department in its Form F73 – Response from an employer/principal to an application for an order to stop bullying raised a number of objections to the application, including that that the alleged bullying behaviour was reasonable management action carried out in a reasonable manner.

[2] Ms Coulson’s application was the subject of a number of conferences convened by the Fair Work Commission (the Commission) which failed to resolve the matter. As a result, the application and the Respondents’ objections were listed for substantive hearing on 12 and 13 September 2017.

[3] On 3 August 2017 Ms Coulson filed an amended application which cited three senior managers, Ms Sita Jackson, Mr David Williams and Ms Paula Goodwin, as persons against whom bullying was alleged (together with the Department referred to as the Respondents). The Respondents did not object to the amended application. The Commission agreed to amend the application on 23 August 2017 relying on the powers available to it under s.586 of the Act.

[4] Also on 3 August 2017 the Respondents each filed a Form F1 – Application (No Specific Form) seeking that Ms Coulson’s application be dismissed under s.587(1)(b) and (c) on the grounds that it was frivolous or vexatious or has no reasonable prospects of success. Those applications also sought orders under s.593(3)(c) of the Act prohibiting or restricting the publication of the names and addresses of persons appearing at the hearing.

[5] Those applications to dismiss were listed for mention and directions on 23 August 2017 with the applications subsequently listed for hearing on 31 August 2017.

[6] At the hearing, Ms Gabrielle Sullivan appeared with permission for Ms Coulson while Mr Jamie Ronald of Counsel appeared with permission for the Respondents. Ms Coulson gave evidence on her own behalf, while Ms Abigail Whiting, Acting Assistant Secretary of the Department’s People Strategies Branch, gave evidence for the Respondents. Neither Ms Coulson nor Ms Whiting was required for cross examination.

[7] For the reasons set out below, I decline to make the orders sought by the Respondents, both in respect of dismissing Ms Coulson’s application and prohibiting or restricting the publication of the names and addresses of persons appearing at the hearing of the application. The Respondents’ applications are therefore dismissed.

Background

[8] In late November 2016 Ms Coulson was advised that a Code of Conduct investigation against her would be initiated in respect of allegations that she inappropriately requested a change to a Ministerial briefing in April/May 2016 and that between April and October 2016 she behaved in an unprofessional, disrespectful and discourteous way to one of her direct reports. At the same time, Ms Coulson was advised by Ms Goodwin in her capacity as the Department’s Acting Chief Operating Officer (COO) that her preliminary view was that it may be appropriate to reassign her duties or suspend her with pay until the Code of Conduct issue was determined. In those circumstances, Ms Coulson was directed not to, inter alia, enter Departmental premises without Ms Goodwin’s prior permission and was escorted off the premises.

[9] In subsequent key developments:

The statutory framework

[10] 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.

(2) …

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(2) ...

(3) The FWC may dismiss an application:

593 Hearings

(1) The FWC is not required to hold a hearing in performing functions or exercising powers, except as provided by this Act.

(2) If the FWC holds a hearing in relation to a matter, the hearing must be held in public, except as provided by subsection (3).

Confidential evidence in hearings

(3) The FWC may make the following orders in relation to a hearing that the FWC holds if the FWC is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:

(a) orders that all or part of the hearing is to be held in private;

(b) orders about who may be present at the hearing;

(c) orders prohibiting or restricting the publication of the names and addresses of persons appearing at the hearing;

(d) orders prohibiting or restricting the publication of, or the disclosure to some or all of the persons present at the hearing of, the following:

(i) evidence given in the hearing;

(ii) matters contained in documents before the FWC in relation to the hearing.” [Underlining added]

The Respondents’ case

[11] In their submissions the Respondents provided an outline of authorities which considered the terms ‘frivolous or vexatious’ and ‘no reasonable prospects of success’, referring in particular to the principles set out by Chief Justice Barwick in General Steel Industries Inc v Commissioner of Railways (NSW) 1 (General Steel) and the decisions in Spencer v Commonwealth of Australia2 (Spencer), Applicant v Respondent3, Obatoki v Mallee Track Health & Community Services and Others4 (Obatoki) and Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines5 (Shaw).

[12] In brief, the Respondents submitted that:

[13] More specifically, the Respondents submitted that:

[14] With regard to the Respondents’ applications to de-identify the individually named Respondents, it was submitted that each of the named Respondents were senior officers of the Department and that the ability of the Applicant, the named Respondents and other senior officers of the Department to work together productively and to demonstrate effective leadership and governance, both within and outside the Department, would be preserved and enhanced if each of the parties to the application were de-identified. It was further submitted that the de-identification of the parties would be consistent with the purposes of Part 6-4B of the Act.

[15] At the hearing the Respondents, having regard to the table of material which the Applicant had provided with her written submissions and which set out the chronology of events, referred to various aspects of Ms Coulson’s initial witness statement to argue that the actions referred to were reasonable management actions. The Respondents also submitted that there was nothing in the decision making process in this case that would on any basis fall outside what the Commission might find to be reasonable management action and that it was therefore appropriate to dismiss the application on the basis that it had no reasonable prospects of success. With regard to Ms Coulson’s fitness for duty assessment report, the Respondents contended among other things that there was nothing in that report which referred to any concerns by the Applicant regarding Ms Jackson, Mr Williams and Ms Goodwin. Beyond that, in support of their applications the Respondents referred to the decisions in Aly v Commonwealth Securities Limited and others 6 which considered the issue of reasonable management action and Ms SB7 which considered the issue of risk to health and safety.

[16] Ms Whiting in her witness statement 8 deposed among other things that none of the named Respondents had any direct supervisory role in relation to Ms Coulson’s role as Director, Business Improvement and Optimisation Section in the Department’s Wildlife, Heritage and Marine Division.

The Applicant’s case

[17] The Applicant agreed that the General Steel principles applied to the interpretation of the phrase ‘frivolous or vexatious’, adding that a case that was so obviously untenable that it could not possibly succeed or was of such little merit or pursued for such an ulterior purpose or motives as would amount to an abuse of process fell into this category. As to the phrase ‘no reasonable prospects of success’, the Applicant submitted, inter alia, that the better view of that test was that such a conclusion should only be reached with extreme caution in circumstances where the relevant application was manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable. As to the decisions in Obatoki and Shaw, the Applicant highlighted that both were cases where the relevant applicant was no longer employed at the workplace and as such there was no possibility that the worker would continue to be bullied at work, adding that a more complicated threshold scenario was considered by Commissioner Gregory in Keiko Adachi 9 (Keiko).

[18] In her written submissions the Applicant summarised her case in the following terms:

[19] More specifically, the Applicant contended that the behaviour that she complained of was the 11 actions and decisions referred to in her witness statement of 3 August 2017 10. Together with her written submissions the Applicant provided a table setting out a chronology of events. Further, the Applicant submitted that for the reasons set out in that table the 11 actions and decisions which she complained of could not be said to be reasonable management action carried out in a reasonable manner and that her amended application could not be dismissed on that basis.

[20] Beyond this, the Applicant submitted that:

[21] In her witness statement of 3 August 2017 the Applicant set out a detailed overview of the events that led to her reassignment in mid-May 2017. Her further witness statement of 31 August 2017 11 outlined developments since her first witness statement.

[22] At the hearing, the Applicant emphasised that the bar for the Commission to dismiss the application was a high one and that the Commission should only make such a decision with extreme caution. Against that background, the Applicant contended that she did not have to show that the actions of the named Respondents were not reasonable management action but rather that her arguments in that regard were remotely respectable. Further, the Applicant contended that the allegations which were the catalyst for the Code of Conduct investigation against her were not such that they warranted an immediate direction that she not enter the Department’s premises without prior permission or that she be immediately escorted from the premises. More specifically, the Applicant stated that she did not concede that the starting point in this case was appropriate, asserting that the drive to remove her from the workplace was “over the top” and adding that if that assertion was made out that the action was not reasonable.

[23] Other key aspects of the Applicant’s oral submissions were that:

Consideration of the issues

The de-identification applications

[24] In Amie Mac v Bank of Queensland Limited; Michelle Locke; Matthew Thompson; Stacey Hester; Christine Van Den Huevel; Jane Newman 12 (BOQ), Vice President Hatcher dealt with the issue of an application to de-identify the respondents in a bullying application. At paragraph [6] of that decision, Hatcher VP sets out the main features of the principle of open justice as summarised in the NSW Supreme Court decision (Pembroke J) in Seven Network (Operations) Limited & Ors v James Warburton (No 1)13. It is not necessary to repeat that summary here. Of particular relevance to the applications before me, Hatcher VP in BOQ explores the application of the principle of open justice in relation to the anti-bullying jurisdiction established by Part 6–4B of the Act. Specifically, Hatcher VP makes the following observations on this issue in BOQ:

“[9] In relation to the anti-bullying jurisdiction established by Part 6-4B of the FW Act, it is apparent that the purpose of the legislation, namely to ensure that workers can continue in their engagements at work free from the risk to health and safety caused by workplace bullying, would be defeated if the public disclosure of sensitive information during the course of anti-bullying proceedings would be likely to have the effect of rendering the relevant worker’s continuing engagement unviable. However it is equally apparent that, in accordance with the open justice principle, it is not sufficient to justify the making of a non-disclosure order merely that allegations have been made which are embarrassing, distressing or potentially damaging to reputations. In an anti-bullying matter, as with other types of proceedings before the Commission such as unfair dismissal remedy applications, the findings of the Commission concerning allegations which have been made will usually appropriately resolve concerns about embarrassment, distress or damage to reputation. If findings are made that an applicant’s allegations of bullying behaviour are unfounded, then the position of persons alleged to be the perpetrators of such bullying will be vindicated and the outcome will redound upon the applicant. However if allegations of bullying are found to be substantiated, then public identification of the perpetrators of that bullying is normally appropriate. In either case, the public scrutiny involved will have a deterrent effect that is in the public interest - in the former case against the making of unfounded allegations and in the latter case against engagement in bullying behaviour.” (Underlining added)

[25] In this case Ms Coulson did not object to her name being published nor did she contend that publication of her name would have the effect of rendering her continuing engagement by the Department anymore unviable than it already was. The Respondents did not submit that identification would make Ms Coulson’s engagement unviable but rather that their capacity to work productively with Ms Coulson would be preserved and enhanced if the parties were not identified. Further, Ms Whiting’s evidence was that none of the named Respondents had any direct supervisory role in relation to Ms Coulson’s current role in the Department. Ms Whiting’s evidence does not point to the viability of the Applicant’s continuing engagement being adversely impacted by publication of the Respondents’ names.

[26] Drawing on the decision in BOQ, these considerations when taken together do not support the making of orders sought by the Respondents regarding de-identification.

The applications to dismiss under s.587(1)(b) and (c)

[27] The meaning and application of the phrase “no reasonable prospects of success” was canvassed by Deputy President Gostencnik in Shaw in the following terms:

[8] 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.

[9] 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.

[10] 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.

[11] 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.” 14 (Footnotes not included, underlining added)

[28] At the hearing the parties agreed that the decision in Spencer set a high threshold for the dismissal of an application on the basis that it had no reasonable prospects of success.

[29] As noted above, the Applicant submitted at the hearing that the allegations which lead to the Code of Conduct investigation against her were not such that they warranted an immediate direction that she not enter the Department’s premises without prior permission. For instance, the Applicant highlighted that the alleged inappropriate request by her to change a Ministerial briefing had occurred some six months before the Code of Conduct investigation was initiated, contending that this raised questions as to the reasonableness of the Respondents’ directions and the decision to escort her from the premises. At the hearing, the Respondents highlighted that the Applicant had been given an opportunity to respond on these issues, that the directions issued by Ms Goodwin on 28 November fell squarely within the type of directions commonly made in a Code of Conduct context and that the direction not to enter the Department’s premises was withdrawn shortly afterwards. While I note the Respondents’ submissions, there is in my view a plausible argument to be put and heard as to the reasonableness of the Respondents’ actions in this regard.

[30] Beyond that, the Applicant contended that there was a risk that Ms Goodwin as COO may in future be a decision maker in respect PS Act and performance related matters concerning her given that as COO she has oversight for the Department’s People Strategies Branch. In respect of Ms Jackson and Mr Williams, the Applicant contended that both persons might also in future be appointed as delegates in respect of PS Act related matters concerning Ms Coulson, adding that there was also scope for Mr Williams to again act as COO in future. While these arguments are perhaps less compelling in respect of Ms Jackson and Mr Williams, they are not manifestly untenable or groundless.

[31] Having regard to the decision in Keiko and the need to exercise extreme caution in dismissing an application on the basis that it has no reasonable prospects of success, the above analysis supports a finding that it would not be appropriate for the Commission to exercise the discretion available to it to dismiss the application on the basis that it has no reasonable prospects of success.

[32] The term “frivolous or vexatious” was considered by the Full Bench in Brent Gorman v Australia Post 15 in the following terms:

[10] For the power under s. 587(1)(b) to be exercised, it must be determined that the application before FWA is “frivolous or vexatious”. This would suggest that the application must demonstrably be of such little merit or pursued for such ulterior purposes or motives as would amount to an abuse of process.

[11] The meaning of the words “frivolous or vexatious” in the context of the Order 26, rule 18 of the High Court Rules was considered by Barwick C.J. in General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125, at 129 as follows:

“The test to be applied has been variously expressed; “so obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit of argument”; “discloses a case which the Court is satisfied cannot succeed”; “under no possibility can there be a good cause of action”; “be manifest that to allow them” (the pleadings) “to stand would involve useless expense”.

At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or “so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument”; “so to speak apparent at a glance”.” (at 129)

[33] In this case it was not disputed that Ms Coulson wished to be returned to her former role. However, the Respondents’ argument that Ms Coulson’s application had been brought for the collateral purpose of returning her to her former role cannot be sustained in circumstances where the fitness for duty assessment report regarding Ms Coulson concluded that her condition was “unlikely to resolve unless she retains her former position” 16. Similarly, Ms Coulson’s decision not to pursue other avenues available to her in terms does not of itself mean that her application had been brought for some ulterior purpose. This does not support a finding that Ms Coulson’s application is frivolous or vexatious.

Conclusion

[34] For all the above reasons I decline to make the orders sought by the Respondents, both in respect of dismissing Ms Coulson’s application and prohibiting or restricting the name and addresses of persons appearing at the hearing of the application. The Respondents’ applications will therefore be dismissed. An Order to that effect will be issued in conjunction with this decision.

Appearances:

G. Sullivan for the Applicant
J. Ronald of Counsel for the Respondents

Hearing details:

2017

Canberra

31 August.

 1   (1964) 112 CLR 125

 2   (2010) 241 CLR 118

 3   [2010] FWA 1765

 4   [2015] FWCFB 1661

 5   [2014] FWC 3408

 6   [2015] FWCFB 6895

 7   [2014] FWC 2104

 8   Exhibit 1

 9   [2016] FWC1498

 10   Exhibit 2

 11   Exhibit 3

 12   [2015] FWC 774

 13   [2011] NSWSC 385

 14   [2014] FWC 3408

 15   [2010] FWAFB 9413

 16   Exhibit 3 at Annexure SC23

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