| FWC 1404|
|FAIR WORK COMMISSION|
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Mylan Health Pty Ltd and others
DEPUTY PRESIDENT COLMAN
MELBOURNE, 17 MARCH 2020
Application for interim anti-bullying order to prevent dismissal – power under s 789FF contingent on FWC satisfaction as to bullying etc – ‘serious question’ is not satisfaction – s 589(2) not a discrete source of power – application for interim order dismissed
 This decision concerns an application for an urgent interim order sought by Ms Leanne Mayson to prevent her dismissal. The matter arises in connection with a substantive application made by Ms Mayson under s 789FC of the Fair Work Act 2009 (Act) for orders to prevent her from being bullied at work. In that application, Ms Mayson contends that she has been subjected to repeated unreasonable behaviour engaged in by her employer, Mylan Health Pty Ltd (company), and eight named individuals who are employees of the company.
 Ms Mayson alleges that she was first subjected to bullying conduct in 2014, when one of the named individuals unreasonably refused to approve reimbursement of a travel-related expense. She says that from around May 2017, the company and six of the named individuals bullied her in a number of different ways, including by excluding her from work events, ridiculing and isolating her, and gossiping about her. Ms Mayson says that in early March 2019, following a further instance of bullying, the company told her that some of her colleagues had complained about her conduct. The company proceeded to place her on a performance improvement plan (PIP). Ms Mayson submits that she was subjected to further bullying conduct connected with the PIP. She says that she was not provided with the details of the complaints against her, and that the PIP, which sought changes in her behaviour, was unreasonable. She submits that her complaints about the PIP were ignored, and that the company did not apply its own performance policies to her case.
 On 11 March 2019, Ms Mayson was certified unfit to return to work because she was suffering from a depressive illness. She has not returned to work. Ms Mayson contends that she has been subjected to further bullying during her absence, and in particular that the company has sought to have her return to work during a period of personal leave. Ms Mayson says that, according to her doctor, she could return to work in late March or early April 2020 if the company makes reasonable adjustments to her working arrangements, including by removing the PIP and changing her reporting line.
 Ms Mayson says that the bullying conduct to which she refers has had a significant adverse effect on her health and wellbeing, and that it has, among other things, caused her to suffer stress, anxiety and depression.
 The respondents to the anti-bullying application deny that Ms Mayson has been subjected to bullying. The company says that it has legitimate concerns about Ms Mayson’s behaviour which it has sought to address through the PIP. The company further contends that in late 2019 it advised Ms Mayson that it required her to return to work on normal full-time duties, but that she did not do so, and that on 3 March 2020 it sent Ms Mayson a letter asking her to show cause why her employment should not be terminated.
 On 11 March 2020 Ms Mayson’s solicitors wrote to the company, stating that she had made progress in recovering from her illness, and requesting that the company consider making the reasonable adjustments referred to by Ms Mayson’s doctor. On 12 March 2020 Ms Mayson sought an undertaking from the company that it would not terminate her employment until her anti-bullying application had been determined. The company replied on 13 March 2020, declining to give undertakings. The same day, Ms Mayson’s lawyers sent to the company Ms Mayson’s response to the show cause letter.
 Ms Mayson now seeks urgent interim orders, directed against the company and four of the eight individuals named in her application, requiring that they not take disciplinary action against her in connection with the PIP, including in particular that they not terminate her employment, until the final hearing and determination of her anti-bullying application.
 I heard the application for interim orders by telephone on the afternoon of 16 March 2020. The parties were represented by counsel.
 Ms Mayson contended that the correct approach for the Commission to follow in considering whether to issue the interim anti-bullying order she seeks was to ask whether she has established a prima facie case and if so whether the balance of convenience favoured the granting of an order. Ms Mayson contended that if both questions are answered in the affirmative, the order should be issued. She said that this is the approach that has been taken in a number of other decisions of the Commission in similar circumstances, and that I should adopt the same course in this matter. Ms Mayson contended that, in the present case, there is at least a prima facie case that she has been bullied at work. She referred to her treating doctor’s reports as evidence of the effect of the bullying conduct on her health. Ms Mayson further submitted that she has established a prima facie case that she is at risk of being subjected to continued bullying at work. She contended that the balance of convenience favoured the making of an interim order to prevent her dismissal prior to the final determination of her anti-bullying application. She submitted that, whereas her employment would be at risk if no order were made, there would be little or no detriment or inconvenience that the company would suffer if an order were made.
 During the hearing, I asked Ms Mayson’s counsel to identify the source of my power to issue an interim anti-bullying order based only on a prima facie case or serious question to be determined, given that s 789FF allows the Commission to make an anti-bullying order only if it is ‘satisfied’ that a worker has been bullied at work and that there is a risk that the bullying will continue. Ms Mayson’s position was that the source of power was s 589(2), not s 789FF, and that therefore the Commission did not need to be satisfied that she had been bullied at work, or that there was a risk of further bullying conduct. Ms Mayson contended that the Commission would only need to be satisfied of the matters stipulated in s 789FF before making a final order under that provision. For the purpose of making an interim anti-bullying order of the kind she seeks, Ms Mayson said that it was enough for the Commission to be persuaded that she has a prima facie case, and that the balance of convenience is in her favour.
 The company submitted that Ms Mayson’s allegations of bullying against it and the named individuals were without merit, and that the balance of convenience did not favour the granting of an interim order. It said the company should not be deprived of its right to end Ms Mayson’s employment, if that is what it decides to do after having considered her response to the show cause letter. The company further contended that an order prohibiting Ms Mayson’s dismissal would not be directed at preventing her from being bullied at work, because if the company does decide to terminate her employment, it will no longer be possible for her to be bullied ‘at work’. Any order preventing termination of employment would therefore not be for the necessary purpose set out in s 789FF. Moreover, the company said that any decision it makes to terminate Ms Mayson’s employment would not be related to conduct that could be described as bullying at work but would instead be the result of a legitimate disciplinary process. The company also contended that the Commission could not issue the order sought under s 789FF because it could not be satisfied of the relevant matters, and that it would be inappropriate for the Commission to issue an order under s 589(2) in circumstances where it did not have power to make the relevant order under s 789FF.
 The provisions that are relevant to the present application are the following. Section 589 of the Act deals with the power of the Commission to make procedural and interim decisions. Section 589(1) states that the Commission may make decisions as to how, when and where a matter is to be dealt with. Section 589(2) then states that the Commission ‘may make an interim decision in relation to a matter before it.’
 Section 789FD(1) defines what is meant by worker being ‘bullied at work’:
(1) A worker is bullied at work if:
(a) while the worker is at work in a constitutionally-covered business:
(i) an individual; or
(ii) a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
(b) that behaviour creates a risk to health and safety.
 There is no dispute that Ms Mayson works for a constitutionally-covered business, as the company is a trading corporation. Ms Mayson contends that the company and the individuals have repeatedly behaved unreasonably towards her, and that their behaviour has created a risk to her health and safety.
 Section 789FF(1) sets out when the Commission may make an anti-bullying order:
“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.
 I reject Ms Mayson’s contention that s 589(2) is a discrete source of power that enables me to make an interim anti-bullying order, and that the requirements of s 789FF need not be met.
 Section 589(2) states that the Commission ‘may make an interim decision in relation to a matter before it.’ It is not an independent source of power to issue interim orders, whether in the nature of interlocutory administrative injunctions or any other temporary decision. Absent a particular ‘matter before it’, the Commission has no power to do anything at all under s 589(2). To the extent that it might be contended that s 589(2) can be used in respect of any ‘dispute’ that might be referred to the Commission, s 595 makes clear that the Commission may deal with a dispute ‘only if (it) is expressly authorised to do so under or in accordance with another provision of this Act.’ Section 589(2) is not such a provision.
 The ‘matter’ now before the Commission, for the purpose of s 589(2), is an application made under s 789FC. That application alleges that a worker has been bullied at work. It seeks an order under s 789FF to prevent a worker from being bullied by an individual or group. Any order I make in relation to this application will be an order under s 789FF. The relevant requirements of that section must be satisfied.
 Section 789FF confers jurisdiction on the Commission to make an anti-bullying order if, and only if, it is satisfied that a worker has been bullied at work, and that there is a risk that the worker will continue to be bullied at work. In order to be satisfied that a worker has been bullied at work, the Commission would first need to make factual findings about what has occurred and assess whether the behaviour of relevant persons may be characterised as falling within the definition of ‘bullied at work’ in s 789FD(1). This would require the Commission to reach a conclusion as to whether the impugned conduct was repeated and also unreasonable, that the conduct was towards a worker, and that it created a risk to health and safety.
 Further, before issuing an order under s 789FF, the Commission must be satisfied as to the existence of a risk that a worker will continue to be bullied at work by the relevant individual or individuals. This requires an evaluation as to what might happen in the future, which is logically informed by the factual findings and evaluations that have been made about what has already occurred. Bullying cannot ‘continue’ if it did not occur in the first place. Exactly what level of ‘risk’ might need to be identified may be debated, however it requires something more than speculation, and should be based on some historical context that the Commission has positively identified. There must be a rational foundation for a conclusion that there is a risk that the worker will continue to be subjected to bullying of some description by the individual or individuals concerned.
 I note that s 789FF deals directly and in general terms with the Commission’s powers to make orders in relation to applications made under s 789FC. The Commission 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.’ Even if s 589(2) did not exist, the Commission could make an interim (temporary) order under s 789FF. However, it cannot order pecuniary payments. And it cannot issue any order at all unless the relevant preconditions are met.
 The case put by Ms Mayson in this matter is that the Commission need only be satisfied that there is a prima facie case supported by the balance of convenience. However, a conclusion that an applicant for an anti-bullying order has established an arguable case or serious issue to be determined falls well short of the state of satisfaction required by s 789FF. One cannot be satisfied on an arguable basis. One is either satisfied, or not satisfied, that a certain state of affairs exists.
 Although Ms Mayson contended that s 589(2), and not s 789FF, was the source of power for the Commission to issue an anti-bullying order in the nature of an ‘injunction’, she nevertheless submitted that the prima facie case that needed to be established was a case referable to s 789FF, namely that the worker had been bullied at work and remained at risk. On her argument, s 789FF was relevant after all, but its requirements did not need to be met. This does not make sense to me. The essence of the argument seemed to be that s 589(2) enables the Commission to issue an administrative ‘interim’ injunction in relation to any matter that might be before it, despite what the substantive provisions in question might say about the Commission’s jurisdiction. I cannot see any valid basis to interpret s 589(2) in this way. Section 589(2), a general provision which must relate to a ‘matter before the Commission’, would then have the effect of disengaging express requirements of the substantive provision and source of power – that the Commission be satisfied of the relevant matters. The applicant’s argument reads s 789FF as requiring the Commission’s satisfaction of these matters, unless an application is made for interim anti-bullying orders. This is not a sensible or coherent interpretation of the relevant provisions.
 Moreover, the Commission, unlike a court, has no inherent jurisdiction. It can only do what the Act allows, and it must do what the Act requires.
 I appreciate that there have been a number of matters in which applications seeking interim anti-bullying orders in the nature of an administrative injunction have been successful, on the basis that the applicant has established a serious question to be tried, together with a favourable balance of convenience. These include the two decisions referred to in argument by Ms Mayson, Lynette Bayley 1 and Worker A and others v AMWU and others.2 However, in these matters, it does not appear that there was any argument about the jurisdictional question I have referred to above. The parties proceeded on a common assumption about the Commission’s power under s 589(2) in the context of an anti-bullying application.
 An ‘interim’ decision for the purpose of s 589(2) is one that is not a final decision. In its interaction with the various ‘matters’ that may come before the Commission, and the substantive provisions associated with those matters, s 589(2) might or might not facilitate the issuance of an interim order in the nature of an administrative injunction, depending on the substantive provisions in question. 3 In its interaction with s 789FF, s 589(2) cannot operate this way, for the reasons given above. On the other hand, there is nothing to prevent the Commission from issuing other kinds of interim decisions in an anti-bullying matter, consequent upon having reached the required state of satisfaction as to the matters set out in s 789FF(1). For example, the Commission might be satisfied that a worker has been bullied at work and that there is a risk of continued bullying but require further submissions from the parties as to the final orders; an interim order might be made ‘in the interim’. But what the Commission cannot do is issue an order under s 789FF, without being satisfied that a worker has been subjected to bullying at work, and that there is a risk that the bullying will continue. To make an order in such circumstances would be beyond power.
 Ms Mayson’s application raises a large number of allegations against the company and the named individuals. These are serious matters. The company and the individuals deny that they have engaged in bullying conduct, or that there is any risk to Ms Mayson’s safety at work. At this point in time I am not satisfied that the applicant has been subjected to bullying, or that she is at risk of further bullying. These questions remain to be determined, following a hearing or determinative conference, based on a proper consideration of the evidence.
 Further, I do not see force in Ms Mayson’s contention that an interim order should be granted in the present matter because it is necessary in order to preserve the ability of the Commission to determine the substantive anti-bullying application. The contention implicitly, and correctly, recognises the difficulty with the proposition that a person will continue to be subjected to bullying at work after the employment relationship has ended. But it wrongly in my view sees the determination of an anti-bullying application as an end in itself, whereas such a determination is in fact a means to an end, namely the end specified in the Act: to prevent a worker being bullied at work. This is the purpose of an anti-bullying order. The purpose is not to ensure that employment continues, or to prevent termination of employment in circumstances which are said to be unfair, or otherwise to maintain the status quo until an anti-bullying application can be determined.
 I do not see the link between an order prohibiting the dismissal of Ms Mayson and the prevention of being bullied at work. If her employment ends, it appears to me that any ‘bullying at work’ will end with it. There may be cases where the act of termination of employment in itself is a further, albeit final, step in a course of bullying and that its prevention by order under s 789FF can still serve the relevant statutory purpose. However, at this point, based on the materials before me, I am not persuaded that the order sought would prevent bullying at work. Therefore, even if the jurisdictional impediment discussed above were absent, I would decline to issue the order sought in this case on discretionary grounds.
 Finally, the fact that an anti-bullying order under s 789FF can only be issued once the Commission reaches the requisite state of satisfaction about the relevant matters does not mean that the Commission cannot deal with anti-bullying matters quickly. The Commission may be able to conduct an expedited hearing, swiftly decide whether it is satisfied of the relevant matters in s 789FF and if so whether to issue an order. The Commission might decide to issue an interim (temporary) order, pending further deliberations on the appropriate framing of a final order, which might require further evidence. Or an expedited hearing might lead directly and quickly to the issuing of final orders. To assist the Commission to accommodate requests for expedited hearings, it would be helpful for the relevant issues in dispute to be narrowed as far as possible, particularly in cases where an application has a lengthy history and contains a large number of allegations.
 I am not satisfied of the matters in s 789FF. I therefore consider that I have no power to make an interim anti-bullying order of the kind sought. The application for an interim anti-bullying order is dismissed.
 As the parties are based in New South Wales, I will refer the substantive application to the anti-bullying panel head, Deputy President Clancy, for reallocation to a Sydney-based member.
A Guy of counsel for Ms Mayson
M Skinner for Mylan Health Pty Ltd
Melbourne and Sydney (by telephone)
Printed by authority of the Commonwealth Government Printer
1  FWC 1886
2  FWC 5848
3 In relation to bargaining orders see Trustee for the P and J Cunningham Family Trust v Victorian Ambulance Union Incorporated  FWC 142 at .