DECISION

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

Rosa Resta
v
Jo Mercer; Christina Kotsiris
(AB2017/379)

Application for an FWC order to stop bullying - application to dismiss pursuant to s.587(1)(c) - whether application for order has no reasonable prospect of success - whether application should be adjourned pending hearing and determination of unfair dismissal proceedings - application to dismiss granted.

[1] By application lodged with the Fair Work Commission (the Commission) on 11 July 2017, Ms Rosa Resta (the Applicant) seeks an order to stop bullying pursuant to s.789FC of the Fair Work Act 2009 (the Act). The Applicant alleges that she has been bullied at work during her employment with Solesbury Pty Ltd T/A Jo Mercer (Jo Mercer). She alleges that she has been subjected to bullying at work by Ms Christina Kotsiris, who is employed by Jo Mercer. Ms Kotsiris together with Jo Mercer are hereafter collectively referred to as the “Respondents”.

Background

[2] The Applicant’s application for an order to stop bullying pursuant to s.789FC of the Act (the anti-bullying application) was allocated to me on 24 July 2017 and I listed it for a conference to take place on 28 July 2017. At the Applicant’s request, this conference was re-scheduled. The first re-listing date was 11 August 2017 but this was changed to 24 August 2017 following another request from the Applicant. On 23 August 2017, the Applicant made a further request to have the conference rescheduled. This was opposed by the Respondents but I determined that the conference should be rescheduled again, this time to 31 August 2017, following receipt of advice from the Applicant that she was awaiting legal advice.

[3] On 31 August 2017, arrangements were made so as to accommodate a number of requests from the Applicant. The parties were to be placed in separate rooms and their times of arrival at the Commission premises were to be staggered. A further request from the Applicant was accommodated so she could attend by telephone. However, when the conference was scheduled to begin, the Applicant was not contactable by phone on the number she had provided. A number of attempts were made but the conference could not proceed.

[4] I determined that the anti-bullying application should then be listed for hearing. On 1 September 2017, I issued directions as follows:

● the Applicant was directed to file and serve an outline of submissions, witness statements and any other material on which she intended to rely by 12:00pm on 15 September 2017;

● the Respondents were directed to file and serve an outline of submissions, witness statements and any other material on which they sought to rely by 12:00pm on 29 September 2017;

● the Applicant was directed to file any reply material by 4:00pm on 6 October 2017; and

● the application was listed for hearing on 16 and 17 October 2017.

[5] Having regard to further correspondence passing between the parties involving work arrangements at Jo Mercer to take effect from 12 September 2017, I determined that it might assist if another conference was listed. On 4 September 2017, I advised the parties that a telephone conference would be conducted on 11 September 2017 and issued a Notice of Listing to this effect. The parties subsequently provided their telephone contact numbers. Three attempts to contact the Applicant by telephone for the conference on 11 September 2017 were not successful. I therefore caused an email to be sent to the parties confirming the matter would proceed to hearing on 16 October 2017 and reminded the parties of the requirements imposed on them by my directions dated 1 September 2017.

[6] In the meantime, numerous pieces of correspondence passing between the parties resulted in Jo Mercer granting the Applicant unpaid leave for the period from 24 September 2017 until 5 October 2017 inclusive, and delaying a return of Ms Kotsiris to the Northland store of Jo Mercer until 25 September 2017. More matters arose between the parties as a result of a customer complaint against the Applicant and an alleged cash discrepancy at work. A foreshadowed meeting between Jo Mercer and the Applicant to discuss these matters became the subject of dispute so I offered the opportunity for another conference. This invitation was not taken up.

[7] On 17 September 2017, the Applicant filed a general protections application pursuant to s.372 of the Act 1 but there was no agreement for that matter to proceed to conference and so the Commission’s file was closed. On 21 September 2017, the Applicant filed a Form F1 Application with the Commission seeking:

● the cessation of email correspondence from Jo Mercer;

● that she not be unlawfully dismissed prior to the hearing of the anti-bullying application on 16 October 2017;

● that her human rights not be violated;

● to remain at Jo Mercer’s Northland store; and

● that she be paid two weeks’ stress leave and financial compensation.

[8] On 1 October 2017, the Applicant filed a medical certificate stating she was unfit for work for the period 1 October 2017 to 8 October 2017.

[9] On 4 October 2017 at 7:51am, Jo Mercer sent an email to the Applicant advising her that she was to be located at the Moonee Ponds store from 6 October 2017 and her first shift there would be on 8 October 2017. In an email response on the same date at 12:56pm, Ms Resta indicated that she had resigned her employment.

[10] On Sunday 7 October 2017, the Applicant sent an email to Jo Mercer and the Commission advising she was formally resigning her employment, “effective immediately”.

[11] On the basis of that email, the Respondents advised on 9 October 2017 that they intended to make application for the dismissal of the Applicant’s anti-bullying application pursuant to s.587 of the Act, submitting that the application has no reasonable prospects of success.

[12] On 10 October 2017, the Applicant subsequently filed an application for unfair dismissal remedy alleging she was forced to resign her employment with Jo Mercer and seeking compensation and reinstatement 2 (the unfair dismissal application). The unfair dismissal application is listed for conciliation on 1 November 2017.

[13] On 11 October 2017, an email was sent to the parties from my chambers advising that with the unfair dismissal application having been lodged by the Applicant, the hearing in relation to the merits of the anti-bullying application would not proceed on 16 October 2017 and the parties were required to attend the Commission in order to address me as to what should occur with regard to it. I indicated that the attendance by witnesses was not required but that I required the parties and/or their representatives to address me.

[14] The Applicant confirmed she would attend the hearing on 16 October 2017 but subsequently sent correspondence regarding the arrangements for it. In this correspondence, she firstly expressed concern about who might be attending from Jo Mercer and then objected to the presence of their legal representatives. Ultimately, the Applicant advised at 6:40am on Monday 16 October 2017 that she would only attend the hearing via telephone.

[15] At the hearing which commenced at 10:00am on 16 October 2017, the Applicant attended via telephone and represented herself. The Respondents sought permission to be represented by Mr Andrew Denton of Counsel. The Applicant objected but I was persuaded to grant permission on the basis that it would enable the matter to be dealt with more efficiently, taking into account its complexity. 3 In this respect, I had regard to issues raised by the concurrent unfair dismissal application and the nature of the objection as to the jurisdiction of the Commission to make any orders in relation to the anti-bullying application.

[16] I also had regard to concerns that the Applicant expressed throughout this application about having to come into contact with various employees of Jo Mercer who are involved in the anti-bullying complaint. Given the issues the Applicant has raised throughout the conduct of the matter and in the face of such strong reservations from her about Jo Mercer employees being present, I formed the view that the Respondents may not be able to represent themselves effectively at the hearing without legal representation. 4

[17] The Respondents then proceeded to press their application to dismiss pursuant to s.587(1)(c) of the Act that the Applicant’s anti-bullying application has no reasonable prospects of success.

Submissions in relation to the Respondents’ application pursuant to s.587(1)(c) of the Act

[18] The basis of the Respondents’ application pursuant to s.587(1)(c) of the Act was that the Commission cannot be satisfied that the Applicant is at risk of being bullied at work now that she is no longer employed by Jo Mercer and therefore, her anti-bullying application has no reasonable prospect of success. Further, the Respondents submitted that even if I was to dismiss Ms Resta’s anti-bullying application now and the end result of her unfair dismissal application was reinstatement, she would not be prejudiced because she would be able to file a fresh application for an order to stop bullying pursuant to s.789FC of the Act.

[19] In support of its position, the Respondents referred me to the following authorities which were also referenced in written submissions dated 28 September 2017, at paragraphs [12] – [14]:

● Re G.C. 5;

● Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines 6 (Shaw);

● Obatoki v Mallee Track Health Community Services and Others 7 (Obatoki); and

● Atkinson v Killarney Properties Pty Ltd T/A Perm-A-Pleat Schoolwear and Palm 8 (Atkinson).

[20] In response, the Applicant submitted that she had been forced to resign her employment, that she was seeking reinstatement and that the anti-bullying application should be put on hold pending the outcome of her unfair dismissal application. She also confirmed she would continue to press her allegations regarding bullying.

Consideration

[21] The relevant remedy in respect of applications for an order to stop bullying is an order which the Commission considers appropriate “to prevent the worker from being bullied at work by the individual or group”. 9 The discretion to make an order to stop bullying is only exercisable if the Commission is satisfied that:

● the worker has been bullied at work by an individual or a group of individuals; and

● there is a risk that the worker will continue to be bullied at work by the individual or group. 10 (my emphasis)

[22] The Act requires the Commission to be satisfied of the first limb outlined above, and if so, the Commission must also be satisfied there is a risk that the worker will “continue” to be bullied “at work” by the individual or group responsible for the bullying.

[23] Therefore, in this case, if I am satisfied that the Applicant has been bullied at work by an individual, or group of individuals, the relevant enquiry then shifts to whether there is a risk that she will continue to be bullied at work by the individual or group of individuals.

[24] In Shaw, which involved an employee who had been dismissed, Deputy President Gostencnik found as follows:

“[15] 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.

[16] 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.

[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... 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.”

[25] In Re G.C., Commissioner Hampton referred to Shaw and stated:

“[166] With respect, I agree with the Deputy President that the import of s.789FF(1)(b)(ii) is that for an order to be made, the Commission must be satisfied that there is a risk that the (applicant) worker will continue to be bullied at work by the individual or group (found to have bullied the applicant). For my part, where an applicant will no longer be at work with the relevant individual or group, and there is no reasonable prospect of that occurring in some capacity as a worker in the future, in almost all cases it will not be possible for an applicant to demonstrate the future risk requirement. This requires a consideration of the particular circumstances of the parties including the potential to return to the workplace in some capacity as a worker.” (emphasis in original)

[26] Obatoki concerned a case where the applicant’s services had been terminated and he was no longer working for the respondent. In that context, the Full Bench of the Commission found:

“[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, 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.” (references omitted)

[27] In Atkinson, the Full Bench was not persuaded that Shaw and Obatoki were wrongly decided and held that it had been open to Commissioner Williams at first instance to determine that the anti-bullying application of the worker, who had been terminated after it had been lodged, be dismissed on the basis that it had no reasonable prospects of success. The Full Bench also stated:

“In this decision, we are not suggesting that it will always be appropriate for the FWC to dismiss a s.789FC application where an employee is dismissed from their employment. Depending on the circumstances in each case there may be a number of relevant considerations, including the prospect of reinstatement through other proceedings, which could warrant the FWC dealing with a s.789FC application notwithstanding the dismissal of the employee.” 11

[28] In Willis v Capital Radiology Pty Ltd T/A Capital Radiology; Ms Peita Carroll; Ms Marie Gibson; Mr Dominik Kucera 12 (Willis), Deputy President Gostencnik dealt with an application for an order to stop bullying in circumstances where the applicant had been summarily dismissed and had commenced an adverse action claim in the Federal Circuit Court of Australia in relation to his dismissal. In granting the respondent’s application for the dismissal of the anti-bullying application pursuant to s.587(1) of the Act, the Deputy President concluded:

“[19] Each case of this kind will turn on its own peculiar facts. It should not be assumed that it will always be appropriate to dismiss an application for an order under s.789FF because the worker has been dismissed. In some circumstances it may be appropriate to adjourn a proceeding instead of dismissing it or to proceed with determining the other preconditions in s.789FF before considering the question of risk of continued bullying at work.

[20] I have given consideration to both these possible courses of action but I have concluded that neither course is appropriate in the present circumstances. If I were to proceed to determine the matter, I would likely face the same question concerning risk in a few months. At that point the conclusion would be the same. The efficient administration of justice is not served by this course and resources of the parties would be unnecessarily expended.

[21] An adjournment for a period that is both lengthy and presently indeterminate is also not conducive to the efficient administration of justice. Cases of this kind should be determined with reasonable expedition. Certainly, the legislature had this in mind by mandating that the Commission start dealing with such an application within 14 days after the application is made.  Moreover, in the event that the Applicant succeeds before the Federal Circuit Court and he is reinstated, he is free to make another application if he believes there is a risk of continued bullying and it seems to me, there is nothing to prevent the Applicant relying on the conduct currently alleged in this application to make good the other jurisdictional fact requirements. As such, no real prejudice is suffered by the Applicant, and there will be no material delay in dealing with a new application on that basis when compared to the delay in determining this application if it were adjourned, pending the hearing and determination of the Federal Circuit Court proceeding.

[22] I am therefore of the opinion that the application for dismissal of the Applicant’s application for an order under s.789FF should be granted…” (references omitted)

[29] In Willis, Deputy President Gostencnik helpfully discussed the Commission’s discretionary power under s.587 of the Act in the context of an anti-bullying application, with reference to Spencer v The Commonwealth of Australia 13, and his observations, in my view, included:

● 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; 14

● the circumstances in which the phrase “has no reasonable prospect of success” might apply should not be confined to those that are frivolous, untenable, groundless or faulty. Full expression should be given to the phrase; 15

● the answer to the question whether a particular application has no reasonable prospect of success in the context of s.587 of the Act may differ depending on the time at which the question is asked. As such, while an application at its inception may have some reasonable prospect of success, if circumstances change during the course of dealing with it, it might no longer have a reasonable prospect of success; 16 and

● in assessing whether “the application” for an order under s.789FF of the Act “has no reasonable prospects of success”, it is necessary to consider whether each of the preconditions for the making of an order under that section might be able to be made out. 17

[30] I have had regard to these cases and principles. In determining whether the Applicant’s anti-bullying application has no reasonable prospect of success, I am required to assess whether there is some reasonable prospect that the Applicant will be able to persuade me to make an order under s.789FF of the Act, having regard to things as they currently stand.

Section 789FF(1)(a) of the Act

[31] Clearly, the Applicant has made an application under s.789FC of the Act. This is the first matter about which I must be satisfied before considering whether to exercise my discretion to make an order to stop bullying.

Section 789FF(1)(b)(i) of the Act

[32] The next matter about which I must be satisfied is whether the Applicant has been bullied at work by an individual or a group of individuals. It is very clear this is in dispute but if I was to assume, for the purposes of the application pursuant to s.587(1)(c) of the Act, that the Applicant would be able to satisfy me that she was bullied at work, two of the three prerequisites in s.789FF(1) of the Act for the making of an order would be satisfied.

Section 789FF(1)(b)(ii) of the Act

[33] As s.789FF(1)(b)(ii) of the Act makes clear, I must also be satisfied that there is a risk that the Applicant will continue to be bullied at work by an individual or group of individuals. As was stated in Willis, “without satisfaction of the existence of a risk of continued bullying at work of the applicant by the individual or group there is an absence of power to make an order” 18 to stop bullying and each case turns on its own facts.19

[34] The Applicant’s employment with Jo Mercer has ended by virtue of her resignation. The question as to whether she is a person who has been “dismissed” within the meaning of s.386 of the Act will be agitated in the unfair dismissal application. As things currently stand, the Applicant is no longer employed or at work and it cannot presently be concluded that there is a risk that she will continue to be bullied at work by the individual or group. This has been the case since 7 October 2017 and continues to be the case as at the date of this decision. The unfair dismissal application, if unable to be resolved at conciliation or settled following it, will take some months to resolve. In such a scenario, the Applicant will not be at work with Jo Mercer for the foreseeable future and any return to work is conditional on her ultimately succeeding in her unfair dismissal application.

[35] Of course, even if the Applicant succeeds in persuading the Commission that she has been unfairly dismissed, a return to work is not guaranteed. While the Act gives the Commission the power to make an order for reinstatement, it may be the conclusion of the Commission that reinstatement is inappropriate. 20 Therefore, as things currently stand, there cannot be a risk that the Applicant will continue to be bullied “at work” with Jo Mercer by an individual or group. The suggestion is speculative and hypothetical.

[36] I am therefore satisfied I do not currently have the power to make an order to stop bullying and, as a consequence, I am satisfied that the Applicant’s application for an order under s.789FF of the Act has no reasonable prospect of success.

[37] It was not proposed by either party and nor do I consider it appropriate to proceed at this time to hear and determine whether the Applicant has been bullied at work. If I were to adopt this course, and the unfair dismissal application was not subsequently resolved in the Applicant’s favour with reinstatement as the outcome, the resources of the parties would have been unnecessarily expended.

[38] Further, I do not consider an adjournment for a currently indeterminate period pending the resolution of the unfair dismissal application to be conducive to the efficient administration of justice. In this regard, I have considered what was said in Willis:

“Cases of this kind should be determined with reasonable expedition. Certainly, the legislature had this in mind by mandating that the Commission start dealing with such an application within 14 days after the application is made.” 21

[39] Should the Applicant succeed in securing reinstatement through her unfair dismissal application and at that point still hold the concern that there is a risk of continued bullying at work, she will be free to make another anti-bullying application. There is no bar to her making a fresh application and nor will she be prevented from relying on the conduct alleged in this anti-bullying application to make good the requirement in s.789FF(1)(b)(i) of the Act. I have considered the views expressed in Shaw 22, Obatoki23 and Willis24 in this regard.

[40] I am also satisfied the Applicant will not suffer any real prejudice if this anti-bullying application is dismissed and there will be no material delay in dealing with a new anti-bullying application when compared to the delay in determining this anti-bullying application, if it were adjourned pending the hearing and determination of the Applicant’s unfair dismissal proceeding.

[41] I am therefore persuaded to exercise my discretion to grant the application of the Respondents pursuant to s.587(1)(c) of the Act and dismiss the Applicant’s anti-bullying application on the basis that it has no reasonable prospects of success. An order dismissing the Applicant’s anti-bullying application will be issued along with this decision.

DEPUTY PRESIDENT

Appearances:

R Resta on her own behalf.

A Denton of Counsel for the Respondents.

Hearing details:

2017.

Melbourne:

October 16.

<Price code C, PR596860>

 1   C2017/5161.

 2   U2017/10868.

 3   Fair Work Act 2009 (Cth) s.596(2)(a).

 4   Fair Work Act 2009 (Cth) s.596(2)(b).

 5   [2014] FWC 6988.

 6   [2014] FWC 3408.

 7   [2015] FWCFB 1661.

 8   [2015] FWCFB 6503.

 9   Fair Work Act 2009 (Cth) s.789FF.

 10   Fair Work Act 2009 (Cth) ss.789FF(1)(b)(i) and (ii).

 11   [2015] FWCFB 6503 at [35].

 12   [2016] FWC 716.

 13   (2010) 241 CLR 181.

 14   [2016] FWC 716 at [7].

 15   Ibid at [9].

 16   Ibid at [10].

 17   Ibid at [11].

 18   [2016] FWC 716 at [15].

 19   Ibid at [19].

 20   Fair Work Act 2009 (Cth) s.390(3).

 21   [2016] FWC 716 at [21].

 22   [2014] FWC 3408 at [17].

 23   [2015] FWCFB 1661 at [17].

 24   [2016] FWC 716 at [21].

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