DECISION

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

Application by C.I
(AB2016/321)

Application for an FWC order to stop bullying – where applicant is terminated from employment – whether the Commission has jurisdiction to hear the application – where applicant has filed s.394 application – no reasonable prospects of success – application dismissed

[1] On 23 February 2016, the Applicant made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the Act). I will for convenience describe this as the “AB application”.

[2] At the same time as lodging the AB application, the Applicant lodged an application under s.372 under the Act for an alleged breach of the General Protections. The General Protections matter was also allocated to me, and I conducted a conference concerning the s.372 application in April 2016 which was not successful in resolving the dispute.

[3] The Applicant alleged he was subject to bulling behaviour by 14 employees in his workplace, V (the Respondent). The Respondent raised a jurisdictional objection to these allegations on the basis the alleged bullying behaviour was reasonable management action, carried out in a reasonable manner.

[4] Shortly after the unsuccessful s.372 conference, on 26 April 2016 the AB application was listed for a Conference where the parties again were unable to come to a resolution. The AB application was listed for hearing on Monday 13 June and Tuesday 14 June 2016 to be heard in Brisbane.

[5] On 8 May 2016 the Applicant wrote to the Commission requesting an extension to file his material due 16 May 2016, on the basis he had been suffering from an illness that had hindered his ability to prepare his material. The Commission wrote to the Applicant on 9 May 2016 requesting the Applicant provide medical certificates to support his request for an extension of time.

[6] On 11 May 2016 the Commission received a medical certificate from the Applicant dated 26 April 2016 to 24 May 2016. The matter was subsequently listed for Mention to be heard by telephone on 13 May 2016.

[7] On 13 May 2016 the Applicant’s request for an extension to file his material was granted, and the hearing dates were subsequently vacated and the matter was relisted for hearing on 18 July and 19 July 2016.

[8] Following the Mention on 13 May 2016 the Applicant wrote to the Commission requesting a further extension of time to submit his material now due 6 June 2016, until 13 June 2016. The Respondent agreed to this request and the request for a further extension was granted.

[9] On 8 June 2016 the Applicant wrote to the Commission advising that due to medical reasons, he was unable to meet the deadline to submit his material on 13 June 2016, and requested a further extension of time. The Applicant advised he would send through medical certificates to support his request.

[10] On 10 June 2016, the Commission received a medical certificate from the Applicant dated 23 May 2016 to 20 June 2016. On 24 June 2016, the Commission received a further medical certificate from the Applicant dated to 18 July 2017. The hearing dates were subsequently vacated.

[11] From June 2016 through to February 2017, the Commission continued to receive updated medical certificates from the Applicant, and the matter therefore remained adjourned with the file held in chambers.

[12] On 12 January 2017, the Applicant telephoned the Commission and informed my Associate that his employment with the Respondent had been terminated. On 25 January 2017, the Applicant filed an Unfair Dismissal application under s.394 of the Act.

[13] On 30 January 2017, the Commission wrote to both parties advising them of my preliminary view that in the circumstances where an applicant’s employment has been terminated, there is no power for the Commission to make an order to stop bulling and so the application has no reasonable prospect of success and must therefore be dismissed. Parties were invited to make submissions on these views by 13 February 2017.

[14] On 10 February, the Commission received a letter from the Applicant dated 3 February 2017 that read as follows:

“To Commissioner Simpson,

In response to Chambers Assistant Olivia Pratt's letter dated 30/1/2017 to both parties, regarding matter and including AB2016/321.

Prior to advising of intentions, regarding formally withdrawing application AB2016/321 or discontinuation, can questions and concerns be answered and addressed?

1. Can the application for an 'Order to Stop Bullying' be revisited?

2. Can I request for matter to be put aside or request a stay of proceedings, for the 'Order to stop Bullying'?

3. If so I request a stay of proceedings for the 'Order to Stop Bullying'.

4. At such time as the conclusion to Unfair Dismissal application being heard, would General Protections (relating to Bullying) be effected [sic] or would it be able to conclude and would this also be the case for application for the 'Order to Stop Bullying'?

5. The 'Unfair Dismissal' application has been made.

6. If the 'Unfair Dismissal' is not successful, can a /General Protections Dismissal' be pursued?

7. Alternatively, can a 'General protections Dismissal' be pursued instead of, prior to 'Unfair Dismissal' proceeding? Also with regards to being effected by time related deadlines/restrictions and circumstances?

8. Can (the Respondent) lawfully Terminate my employment prior to hearing of application for the 'Order to Stop Bullying' whilst not in the workplace on 'Personal leave', with medical advice and documentation provided?

Regards”

[15] On 13 February 2017, the Commission received submissions from the Respondent.

[16] The Respondent submitted that it supported my preliminary view that the AB application has no reasonable prospect of success and should be dismissed for the following reasons (footnotes omitted):

“a) Section 89FF(1)(b)(ii) [sic] of the Act enables the Commission to make orders preventing bullying at work if there is a risk that the employee will continue to be bullied.

b) The Full Bench in Re McInnes [2014] FWCFB 1440 supports the view that the emphasis of the Act is to prevent future bullying rather than providing compensation for past conduct. In Re McInnes the Full Bench stated:

The legislative scheme is not directed at punishing past bullying behaviour or compensating the victims of such behaviour. It is directed at stopping future bullying behaviour.

c) Given the Applicant is no longer required to attend work with the Respondent, the Respondent submits that it is not possible for the Applicant to demonstrate that there is a future risk that he will be bullied at work.

d) There are several authorities that support the view that this continues to apply in circumstances where the Applicant has been terminated from their employment and the lawfulness of their termination is being actively contested.”

[17] The Respondent submitted that in the event the Applicant’s current s.394 application is successful, there would be nothing precluding the Applicant from making another application under section 789FC of the Act in the event that the Respondent is ordered to reinstate the Applicant’s employment.

[18] The Respondent submitted that for the reasons stated above, the Applicant’s AB application should be dismissed.

[19] Section 789FF(1)(b) provides that to make an order in this jurisdiction, the Commission must be satisfied that there has been relevant bullying conduct, and further, that there is a risk of further bullying of the applicant at work:

“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.”

[20] There is no dispute the application has been made under s.789FC of the Act. Further, it is clear from the circumstances of the matter that there is presently no risk the Applicant will be bullied at work by the group of individuals against whom he made his application, given that the he has been terminated, and has not attended the workplace since March 2016. It is however prudent to consider whether there is any reasonable prospect of a relevant risk arising in the future. 1

[21] In this case, the Applicant has filed an unfair dismissal application in accordance with s.394 of the Fair Work Act. This application may be heard and determined by the Commission and the Applicant may potentially seek reinstatement at that time.

[22] In Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank and Another 2 (Shaw v ANZ), Gostencnik DP was dealing with an anti-bulling application where the applicant had been dismissed by his employer and had filed a s.365 General Protections application. The Deputy President found as follows:

“[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.”

[23] Section 587 gives the Commission the power to dismiss an application on a number of grounds, including where the application has no reasonable prospect of success:

“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.

[24] In Application by P.K [2015] FWC 562 at [30] Hampton C found that the power to dismiss an application on the basis it has no reasonable prospect of success is discretionary.

[25] When taking into account the surrounding circumstances in this case I am inclined to follow the decision of the Deputy President in Swan v ANZ. That the Applicant has filed an unfair dismissal application that may result in reinstatement at some point in the future is indeed speculative and uncertain. For reasons set out above I am satisfied there is currently no risk of the Applicant being bullied at work. It necessarily follows that I do not have power to make an order to stop bullying and, as a consequence, I am satisfied that the Applicant’s application has no reasonable prospect of success.

[26] I have taken the views of both parties into consideration when making this decision. I take note of the Applicant’s preference to have the application stayed. Given the Deputy President’s finding in Shaw v ANZ, I am inclined to accept the Respondent’s submission that in the event the Applicant is reinstated as a result of his unfair dismissal application, there is nothing to prevent him from filing a new s.789C application.

[27] In relation to the other questions raised by the Applicant in his letter dated 3 February 2016, the Applicant is seeking to obtain legal advice from the Commission. The Applicant has already been advised by my Associate in telephone conversations dated 25 January 2016, and 27 January 2016 that the Commission cannot provide him with legal advice.

[28] I see no reason in the circumstances why I should not exercise my discretion to dismiss the Applicant’s application given my findings and I do so.

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 1   Application by P.K [2015] FWC 562 at [26].

 2   Mitchell Shaw v Australia and New Zealand Banking Group Limited t/a ANZ Bank [2014] FWC 3408.