| FWC 6037 [Note: a correction has been issued to this document; the redactions arising have been incorporated in this version]
|FAIR WORK COMMISSION
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Mr Andrew Hamer
PERTH, 1 OCTOBER 2018
Application for an FWC order to stop bullying
 This decision concerns an application made under section 789 FC of the Fair Work Act 2009 for an order to stop bullying. The Applicant is Mr Andrew Hamer (Mr Hamer or the Applicant). Mr Hamer is employed by the Australian Taxation Office in Perth. The persons against whom bullying is alleged are Natalie Bertelli, Julie Douglas and Shelley Bethel (the persons named). Each of the persons named is also an employee of the Australian Taxation Office (the ATO).
 Ms Bertelli, Ms Douglas and Ms Bethel each deny having ever behaved unreasonably towards Mr Hamer.
 The Commission conducted a conference of the parties in January 2018. The conference was attended by the applicant and the three persons named and three other representatives of the ATO.
 At conference the ATO advised Mr Hamer had been moved to a temporary position where he was not required to report to or engage with the three person against whom bullying was alleged.
 The ATO also advised that it intended to investigate the allegations made by Mr Hamer in his application.
 At the conclusion of the conference the ATO agreed to attempt to find a permanent position for Mr Hamer at the AP 6 level in Perth where he would be separated from the persons against whom bullying was alleged, Ms Bertelli, Ms Douglas and Ms Bethel.
 In May 2018 the ATO advised that such a permanent position had been identified and steps taken to facilitate Mr Hamer’s transition to that position and that he would not be moving back to his previous role.
 Subsequently in July the ATO wrote to the Commission advising that in the circumstances they believed the application should now be withdrawn.
 In response the Applicant requested that his application proceed to be heard and determined by the Commission.
 Consequently the Commission advised the parties that it would determine as a preliminary point whether there is jurisdiction under section 789FF of the Act for the Commission to make an order to stop bullying.
 The parties were respectively directed to file any submissions on this point and supporting evidence in the form of statutory declarations and advised that it was the Commission’s intention to determine this preliminary point on the papers but if necessary the matter would be listed for a hearing.
 The parties were advised they were not required to address the requirements of section 789FF(1)(b)(i) of the Act in their submissions or evidence but that should there be a future hearing beyond this preliminary point the Commission acknowledges the jurisdictional question of whether the Applicant has been bullied at work in the past may be contested.
 Subsequently Mr Hamer provided submissions, next the persons named and the ATO have jointly provided submissions and finally Mr Hamer has provided further submissions in reply. Neither Mr Hamer nor the persons named nor the ATO have provided any evidence in the form of statutory declarations.
 As directed Mr Hamer has filed and served submissions that focus solely on section 789FF(1)(b)(ii), being whether there is a risk that he will continue to be bullied at work.
 He submits his bullying allegation is that there has been a push for a number of years by the named persons to single him out and pick on him with the ultimate intent of having him charged and convicted of a breach of the ATO’s Code of Conduct.
 He submits that the ongoing nature of the bullying and the effect of the actions of the persons named is evidenced by the way the ATO has attacked him and been obstructive rather than investigating the claims he has made and addressing the inappropriate behaviour.
 He says the ATO has sided with the named persons and not been impartial, has ignored the facts and supporting documentation provided and deny the behaviour even happened. He says this has led him to feel as though the bullying has morphed from personal to institutional bullying.
 He submits the investigation the ATO conducted into his claims was a token investigation. The findings that the behaviour alleged had not happened was contrary to the corroborating evidence. He submits the ATO is denying or condoning the behaviour and appears to be supporting bullying.
 He submits therefore there is a real risk it will happen again and he will continue to be bullied at work even in a new role.
The ATO and the persons named
 Relevantly the ATO and the persons named submit that the Applicant bears the burden of satisfying the Commission on the balance of probabilities that there is a risk that he will continue to be bullied at work.
 It is submitted that the Applicant has no reasonable prospects of establishing that there is a risk that he will be bullied at work by one or more of the persons named and consequently the application should be dismissed.
 At the time of making this application the Applicant was employed in the ATO’s Small Business – Employer Assurance area on level xxx, xxx Perth.
 The persons named were at the time the application was made, and continue to be, employed in the Small Business – Employer Assurance area. The work locations of 2 of the persons named are on level xxx, xxx Perth, and the other person named works at xxx Adelaide.
 The ATO was notified of the application on 5 December 2017. On 11 December 2017 the Applicant transferred temporarily to the Debt Program Line on level xxx, xxx Perth.
 On 1 May 2018 Mr Hamer transferred to a permanent position, where he is employed in the Superannuation – Engagement and Assurance area, on level xxx, xxx Perth.
 The ATO has taken steps to ensure that the Applicant works in a different business line, and on a different floor, to the two persons named who work in Perth.
 The nature of the Applicant’s current work and work location are separate from those of all of the persons named. There is simply no risk of the persons named repeatedly behaving unreasonably towards the worker while the Applicant is at work.
 Since his transfer to Superannuation – Engagement and Assurance the Applicant’s work desk is located on level xxx, xxx Perth. His work does not require him to visit or communicate with staff within Small Business – Employer Assurance on level xxx.
 The nature of the Applicant’s work does not require him to have dealings or interactions with officers within Small Business- Employer Assurance. Further it is unlikely that his work will in the future require interactions with that business line.
 However should it do so, the Applicant would not be required to interact at all with any of the persons named within the Small Business – Employer Assurance line in relation to his present work, and there are teams in other states such as Queensland, Victoria and New South Wales that could interact with the Applicant.
 It is highly unlikely that his work will require him to have interactions with a specific officer in Perth or Adelaide in Small Business – Employer Assurance.
 The nature of the work and work locations of the persons named are separate from those of the Applicant, such that there is no risk of the persons named repeatedly behaving unreasonably towards the worker while the Applicant is at work.
 The persons named have not initiated contact with the Applicant nor had any substantial interactions with the Applicant since his transfer from Small Business-Employer Assurance. Their work has not, and is highly unlikely to require them to interact with the Superannuation – Engagement and Assurance line.
 The ATO submits that as it undertook at the conference in January 2018 it has obtained a suitable permanent role from the Applicant where he will not be required to report to or work with any of the three persons named.
 The ATO agrees that at the conference it advised that it intended to further investigate the Applicant’s allegations included in his December 2017 application and has done so. The ATO submits it did not give any undertaking as to the outcome of that investigation or how it would be conducted. The Applicant has been advised of the outcome of the investigation and the review process available to him.
 The ATO submits the investigation was conducted in accordance with their normal procedures.
 It is submitted that Mr Hamer has not provided any evidence that there is a risk he will be bullied at worked by the persons named in the future. Absent such a risk the Applicant has no reasonable prospect of success and the application should be dismissed.
Mr Hamer in reply
 Mr Hamer provided submissions about what occurred in early 2016 and September 2017.
 In reply Mr Hamer repeats his view, in more detail, that the ATO investigation was conducted in an unfair manner, did not follow established ATO procedures and did not acknowledge the evidence he provided. He explains why he believes the investigation was flawed.
 He argues because his bullying claims in his view have not been properly investigated the ATO is condoning and supporting bullying in the workplace by finding that the behaviour of the named persons which he has complained about was not inappropriate.
 Mr Hamer argues that because the persons named deny ever behaving unreasonably and the employer has reached the same conclusion there is a real risk of them behaving unreasonably towards him in the future.
 Section 789 FF of the Act sets out the matters the Commission must be satisfied of before it has the power to make an order to stop bullying. Even where the prerequisites have been satisfied the making of an order is not required but rather it remains a discretionary decision for the Commission as to whether or not an order will be issued.
 Section 789 FF is set out below.
“789FF FWC may make orders to stop bullying
(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) In considering the terms of an order, the FWC must take into account:
(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body—those outcomes; and
(b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes—that procedure; and
(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes—those outcomes; and
(d) any matters that the FWC considers relevant.”
 As can be seen from the section the Commission only has the jurisdiction to make an order to stop bullying where it is satisfied that a worker has been bullied at work by an individual or group and the Commission is satisfied there is a risk that the worker will continue to be bullied at work by the individual or group.
 It is also important to appreciate that the anti-bullying jurisdiction is not designed to punish persons who have behaved unreasonably towards others in the past. Rather it is centred on stopping future bullying behaviour.
 Relevantly the Full Bench of the Commission in Re McInnes,  FWCFB 1440, at  noted that,
“ Importantly, a s.789FF order operates prospectively and is directed at preventing the worker being bullied at work. The Commission is specifically precluded from making an order requiring the payment of a pecuniary amount, hence it cannot make an order requiring a respondent to pay an amount of compensation to an applicant. 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.”
 The Commission in a number of prior decisions has unsurprisingly taken into account any change in circumstances in the workplace when considering whether there is a risk that the worker will continue to be bullied at work and/or whether it will exercise its discretion to issue an order or not.
 Deputy President Lawrence in Re Fsadni  FWC 1286 held that where the alleged perpetrators of unreasonable behaviour are no longer present the risk of future bullying will have been removed,
“ By the time of the hearing, both Ms Shah and Ms Hextall had resigned from the Employer. The Employer therefore applied to have the matter dismissed on the basis that the application has no reasonable prospects of success.
 Section 789FF(1)(b)(ii) makes it clear that the Commission can only make an order to prevent the worker from being bullied at work by the individual or group if there is a risk that the worker will continue to be bullied at work. Because of the resignations of Ms Shah and Ms Hextall, I am satisfied that there is no such risk. There is no implication as to what occurred in the past in reaching this conclusion.”
 Commissioner Roe in Darren Lacey and Chris Kandelaars v Murrays Australia Pty Limited; Andrew Cullen  FWC 3136 held that the risk of future bullying by a person whom had previously engaged in bullying conduct was substantially reduced by a change in his role that was intended to remove the chance of further conflict and consequently no order was necessary or appropriate.
“If the orders are not made, is there is a risk that they will continue to be bullied at work?
 This is the most difficult question in this case. Murrays have substantially changed Mr Cullen’s duties since 7 March 2017. Mr Cullen is no longer responsible for the supervision of the drivers, for investigating incidents, assessing drivers or disciplining drivers. He remains responsible for training drivers and may record breathalyser results from time to time.
 Most of the drivers gave evidence that they continued to feel at risk despite the change in Mr Cullen’s role. Mr Sidhu, the driver who represented the Applicants at the hearing, argued strongly that further action was required. I appreciate the depth of feeling and the vulnerability of those who have been victims of bullying. The view expressed by the affected drivers is legitimate and has some merit. The role of the Commission in these matters is not to punish but to take steps necessary to stop bullying.
 Given the number of incidents and the number of drivers who hold serious and soundly based concerns, I accept that there was a serious risk that bullying conduct would continue. However, I also accept that the risk of that conduct continuing has been very substantially reduced by the change in Mr Cullen’s role. Mr Lee gave evidence that the aim of the restructure was to remove the chance of further conflict between Mr Cullen and the drivers. 15
 I consider that my finding that bullying has occurred when combined with the reduced risk due to Mr Cullen’s new role should be sufficient to protect Mr Lacey and Mr Kandelaars from the risk of further bullying. I therefore consider that an Order is not necessary or appropriate in the circumstances of this case. Should further unreasonable behaviour occur, a new application can be made.”
 Commissioner Hampton in the case of Ms LP  FWC 763 held that positive measures an employer has put in place will be a consideration in determining whether or not orders will be made, even where there has been a finding of past bullying and there is a risk of this continuing.
“ In many, if not most cases, where a finding of bullying conduct is made and there is some future risk, preventative orders would be expected to follow. Such orders would, in appropriate cases, establish the appropriate basis for future mutually safe and constructive relationships.
 In this case, given the history of this particular matter, the extent of positive measures that the employer has subsequently put into place as a result of Ms LP’s applications, and my understanding of the workplace and the relationships that has developed from hearing this matter, I do not consider that the making of orders at this time would be conducive to the constructive resumption of working relationships.”
 In this case the ATO has detailed the changes that have been made in the workplace which were designed to separate Mr Hamer from the three persons he has alleged behaved unreasonably towards him in the past.
 Mr Hamer however argues that the ATO has not properly investigated his original allegations and has wrongly concluded that the persons named had not in the past behaved unreasonably towards him and therefore he is at risk that those persons named will in future behave unreasonably towards him.
 Mr Hamer also alleges in his reply submission that the bullying is ongoing and in support of this points to inaccurate rumours and the making of vexatious allegations - both of which however refer to events in September 2017. He also points to his dissatisfaction with the conduct of the investigation and its outcome.
 The question posed by 789FF(1)(b)(ii), is there a risk that the worker will continue to be bullied at work by the individual or group, is to be answered objectively on the information before the Commission.
 The onus is on Mr Hamer to provide evidence or submissions that will satisfy the Commission that there is a risk that he will continue to be bullied at work. The directions to both parties required that they respectively file “…any submissions on this point and any supporting evidence (in the form of statutory declarations)”. Mr Hamer provided written submissions but no statutory declaration.
 The fact that Mr Hamer is fearful of future unreasonable behaviour towards him by the persons named is not determinative of whether, considered objectively, there is a risk he will continue to be bullied at work by these individuals.
 There is no dispute that as a result of the changes the ATO have made Mr Hamer no longer works in the same part of the business as the three persons named. He now works on a different floor from the two persons named who work in Perth. Neither his work nor the work of the persons named requires them to deal professionally with each other. The likelihood of Mr Hamer having any direct contact or other indirect interaction with any of the three persons named will in future be small. Should in future it be necessary that he deals with an area of the business where the persons named work the ATO says that Mr Hamer would not be required to interact with the named persons because there are other teams in other states that he could interact with as required.
 Whilst I do recognise Mr Hamer’s concerns, based on the information before the Commission I am not satisfied that there is a risk that Mr Hamer will continue to be bullied at work by the persons named in his application.
 Therefore even assuming that the first jurisdictional prerequisite of s.789FF(1)(b)(i) which has not been tested in this matter at all was satisfied, the Commission still would not have jurisdiction to make an order to stop bullying. Consequently this application must be dismissed and an order to that effect will be issued in conjunction with this decision.
Final written submissions:
Applicant, 14 August 2018 and 5 September 2018
Persons named and employer, 28 August 2018
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