| [2020] FWC 2412 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Annemaree Collins
v
Team Rubicon Australia
(AB2020/200)
DEPUTY PRESIDENT CLANCY |
MELBOURNE, 7 MAY 2020 |
Application for an order to stop bullying – jurisdictional objection – whether a risk that the worker will continue to be bullied at work – jurisdictional objection upheld.
[1] Ms Annemaree Collins seeks an order to stop bullying at work, alleging she was bullied in her capacity as a volunteer for Team Rubicon Australia (TRA) by six persons employed by it.
[2] TRA is a public company limited by guarantee. It was incorporated in Victoria on 26 August 2016 and registered with the Australian Charities and Not-for-profits Commission (ACNC) on 31 October 2016 as a public benevolent institution whose purpose is “advancing social or public welfare”. TRA aims to assist veterans and/or their families, victims of disaster and the general community by uniting “the skills and experiences of Australian Defence Force veterans with emergency responders to rapidly deploy disaster relief teams around the globe”.
[3] TRA has three full-time employees and 3000 volunteers. It deploys an average of 30-40 volunteers at any given time. Only volunteers are deployed on operations. If a TRA employee sought to be deployed, they would be required to do so in a volunteer capacity.
[4] TRA says Ms Collins joined it as a volunteer on 31 August 2018, completed a one-day course in 2019 and attended her most recent deployment in the Victorian town of Buchan, commencing on or about 16 February 2020. This particular deployment lasted for approximately one week, and it would appear Ms Collins has not carried out any other volunteer activities for TRA since.
[5] In a letter dated 19 March 2020 sent to Ms Collins following this deployment, the following was outlined by Mr Aaron Francis, the National Human Resources Manager of TRA:
“I am writing to advise you of our intention to terminate your volunteer engagement with Team Rubicon Australia (TRA).
In making the decision to end your volunteer engagement, I have relied upon advice from the TRA leadership team about your performance and character, including on Operation Richter, previous operations and your recent correspondence and actions.
I find that your conduct during your most recent deployment, and in the immediate period after:
• Was willful or deliberately disruptive behaviour by you,
• Caused a risk to the reputation of TRA, and provided false hope to vulnerable people, through decision making that was not in your authority or delegation to make, and
• At times represented refusal or otherwise failure to comply with lawful and reasonable instructions, procedures or directions.
I find that your conduct and character are inconsistent with the continuation of your volunteer engagement.
If you disagree with this determination, or you would like to continue your service with TRA, you have 14 days to respond to this notice, after which your engagement will be automatically terminated.
I thank you for raising your concerns about TRA operations and assure you that we will look into these issues as part of our continual improvement plan. However, in this instance I consider that your performance, conduct and disruptive behaviour makes your continued volunteer engagement untenable.
I thank you for your contribution to TRA and the community of Buchan.”
[6] Ms Collins lodged the Form F72 – Application for an order to stop bullying (Form F72) with the Commission to commence this application on the next day, 20 March 2020.
[7] A Form F73 – Response from an employer/principal to an application for an order to stop bullying (Form F73) was filed on behalf of TRA on 28 March 2020. TRA outlined that it objected to Ms Collins’ application on the basis that her engagement as a volunteer had been terminated on 19 March 2020 and that although it denied any bullying had occurred, there was no risk of any ongoing bullying as Ms Collins was no longer engaged by TRA. TRA sought for Ms Collins’ application to be dismissed on this basis.
[8] I convened a Telephone Conference on Thursday, 2 April 2020. During that Conference, TRA also submitted that it was not a constitutionally-covered business within the meaning of s.789FD of the Act and therefore, the Commission did not have jurisdiction to determine Ms Collins’ application.
[9] The parties agreed to file written submissions for my determination on the papers. TRA filed its material comprising of an outline of submissions and a witness statement of Mr Geoff Evans on 8 April 2020. Ms Collins’ material was filed on 15 April 2020 in the form of a letter.
[10] Section 789FC of the Fair Work Act 2009 (the Act) sets out when a person can make an application to the Commission for an order to stop bullying:
“Application for an FWC order to stop bullying
(1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.
(2) For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force.
Note: Broadly, for the purposes of the Work Health and Safety Act 2011, a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.
(3) The application must be accompanied by any fee prescribed by the regulations.
(4) The regulations may prescribe:
(a) a fee for making an application to the FWC under this section; and
(b) a method for indexing the fee; and
(c) the circumstances in which all or part of the fee may be waived or refunded.”
[11] Section 789FD of the Act sets out the requirements for a person to have been bullied at work:
“When is a worker 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.
(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.
(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:
(a) the person is:
(i) a constitutional corporation; or
(ii) the Commonwealth; or
(iii) a Commonwealth authority; or
(iv) a body corporate incorporated in a Territory; or
(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;
then the business or undertaking is a constitutionally-covered business.
[12] Section 789FF of the Act sets out when the Commission may make an order to stop bullying:
“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) 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.”
[13] Ms Collins’ status as a volunteer does not prevent her from making an application for an order to stop bullying with the Commission. 1
[14] Much of the material submitted by the parties went to the question of whether TRA is a constitutionally-covered business within the meaning of s.789FD of the Act; the significance being that if TRA is not a constitutionally-covered business, the Commission does not have the jurisdiction to determine Ms Collins’ application and more particularly, make an order to stop bullying.
[15] However, even if the Commission was to find that TRA is both a constitutionally-covered business and Ms Collins has been bullied at work by an individual or a group of individuals, 2 Ms Collins must also satisfy the Commission there is a risk that she will continue to be bullied at work by the individual or group3 before it determines whether it should exercise its discretion to make an order to stop bullying at work. As to the nature of such an order, the Commission may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent Ms Collins from being bullied at work.
[16] While Ms Collins has made this application to the Commission, there is no material before me to suggest she has responded to the TRA letter dated 19 March 2020 referred to above. In any event, in her Form F72 dated 20 March 2020, Ms Collins states she is seeking an apology, reinstatement to TRA social and chat groups and selection for further deployments.
[17] As set out above, in the letter to Ms Collins dated 19 March 2020, TRA outlined its intention to terminate her volunteer engagement on the basis that her conduct and character were inconsistent with its continuation. This followed a review it conducted after the Buchan deployment. The recommendation arising from this review was that Ms Collins’ volunteer engagement be terminated. TRA attached the “quick assessment report” from the Buchan deployment to the Form F73. It includes the recommendation that both Ms Collins and her husband be removed from TRA and never deployed again. 4 Ms Collins was given 14 days to respond to the letter dated 19 March 2020 if she disagreed or wanted to continue her service with TRA, after which her volunteer engagement would automatically terminate. In its written submissions dated 8 April 2020, TRA outlines that Ms Collins has not carried out any volunteer activities for TRA since 23 February 2020 and her engagement has been terminated.
[18] Having reviewed the material the parties had filed in accordance with my Directions made on 2 April 2020, I formed the view that there is no reasonable prospect of Ms Collins returning to TRA as a volunteer in the near future. Therefore, I wrote to the parties and advised them that even if TRA failed to persuade me that it is not a constitutionally-covered business and Ms Collins satisfied me that she has been bullied at work, I considered I could not be satisfied there is currently a risk that Ms Collins will continue to be bullied at work by an individual or the group of individuals from amongst those she has named in her Form F72.
[19] I expressed the view that if the pre-requisites for the making of any orders pursuant to s.789FF(1) of the Act cannot be met, the application Ms Collins has made has no reasonable prospects of success and therefore, I invited the parties to make submissions as to why I should or should not dismiss Ms Collins’ application for an order to stop bullying at work on the basis that it has no reasonable prospects of success.
[20] In submissions filed in response, TRA denies Ms Collins was bullied while volunteering and says that her dismissal and removal from TRA's social media groups were the result of reasonable management action. Further, it says there is no risk of continued bullying because:
• Ms Collins no longer works for TRA;
• Ms Collins' volunteer engagement with TRA was terminated on 2 April 2020;
• Ms Collins currently carries out no work in any capacity for TRA; and
• TRA has no intention of engaging Ms Collins to carry out any work in the future.
[21] TRA submits that because Ms Collins is no longer a “worker” within the meaning of section 789FC(1) and it has no intention of engaging her to carry out any future work, there is no risk of Ms Collins being 'bullied at work' in the future.
[22] Finally, TRA submits that Ms Collins' application therefore has no reasonable prospects of success as there is no risk that she will “continue to be bullied at work”, within the meaning of section 789FF(1)(b)(ii). It says the Commission is accordingly unable to make any orders that Ms Collins seeks and the matter should be dismissed for want of jurisdiction.
[23] The further submissions of Ms Collins dealt almost exclusively with the question of whether TRA is a constitutionally-covered business. Ms Collins did however outline allegations she says amount to bullying, asserts bullying would continue and contends that an order for bullying is required so that she can continue with TRA as a volunteer “while due process and adherence to the law is undertaken.”
[24] In G.C., 5 Commissioner Hampton stated:
“…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.” 6 (emphasis in original)
[25] The case of Obatoki v Mallee Track Health & Community Services and Others 7 (Obatoki) concerned a situation in which the services of the applicant 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.” 8
[26] Having regard to the material before the Commission, I am not satisfied there is a reasonable prospect of Ms Collins returning to the TRA workplace as a “worker” in the future. Therefore, as I previously expressed to the parties, even if TRA failed to persuade me that it is not a constitutionally-covered business and Ms Collins then satisfied me that she had been bullied, I cannot be satisfied there is currently a risk that Ms Collins will continue to be bullied at work by anyone from amongst those individuals she has named in her Form F72. This being the case, the pre-requisites for the making of any orders pursuant to s.789FF(1) of the Act cannot presently be met.
[27] Given this finding, it is not necessary that I determine whether Ms Collins was at work in a constitutionally-covered businesses and I decline to do so.
[28] It then falls to me to determine whether I should exercise my discretion pursuant to s.587(1)(c) of the Act to dismiss the anti-bullying application of Ms Collins. Although in a different context, the Full Bench in Atkinson v Killarney Properties Pty Ltd T/A Perm-A-Pleat Schoolwear and Others, 9 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.” 10
[29] In this case, it is difficult to see how Ms Collins might be reinstated to the status as a TRA volunteer and certainly there is no prospect of this occurring in the near future. In these circumstances, I do not consider that an adjournment of this anti-bullying application for an indeterminate period, just in case Ms Collins at some stage is able to secure reinstatement to the status of a TRA volunteer, is appropriate. As Deputy President Gostencnik stated in relation to applications for orders to stop bullying at work before him in Willis v Capital Radiology Pty Ltd T/A Capital Radiology; Ms Peita Carroll; Ms Marie Gibson; Mr Dominik Kucera: 11
“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.” 12
[30] I have formed the same view in relation to this application but would however observe that should a reinstatement to volunteer status with TRA somehow subsequently materialise, there is nothing to preclude Ms Collins from making another application to the Commission under s.789FC and if she did so, Ms Collins would be able to rely on the conduct currently alleged in seeking to establish she was bullied at work.
[31] On the material before me, I consider the pre-requisites for the making of any orders pursuant to s.789FF(1) of the Act cannot presently be met and that the application Ms Collins has made has no reasonable prospects of success. Further, I am satisfied it is appropriate in the circumstances of this case to exercise my discretion pursuant to s.587(1)(c) of the Act to dismiss the anti-bullying application of Ms Collins.
[32] An order dismissing the anti-bullying application of Ms Collins will be issued along with this decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR719216>
1 Arnold Balthazaar v Department of Human Services (Commonwealth) [2014] FWC 2076 and Bibawi v Stepping Stone Clubhouse Inc t/a Stepping Stone & Others [2019] FWCFB 1314.
2 Fair Work Act 2009, ss.789FD(1) and 789FF(1)(b)(i).
3 Ibid, s.789FF(1)(b)(ii) and Shaw v Australian and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines [2014] FWC 3408 at [15].
4 Annexure C to the Form F73 – Response from an employer/principal to an application for an order to stop bullying dated 26 March 2020.
6 Ibid at [166].
8 Ibid at [16].
10 Ibid at [35].
12 Ibid at [21].