[2021] FWC 1653

The attached document replaces the document previously issued with the above code on 16 April 2021.

Update in paragraph [6]

Associate to Deputy President Bull

Dated 21 April 2021

[2021] FWC 1653 [Note: An appeal pursuant to s.604 (C2021/2443) was lodged against this decision - refer to Full Bench decision dated 18 August 2021 [[2021] FWCFB 5113] for the result of the appeal.]

FAIR WORK COMMISSION

DECISION

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

Daniel Krcho
v
University of New South Wales T/A UNSW Sydney; Mr Lucian Hiss; Mr Phil Allen; Ms Karen Scott
(AB2018/637)

DEPUTY PRESIDENT BULL

SYDNEY, 16 APRIL 2021

Application for an FWC order to stop bullying - application to dismiss matter pursuant to s.587(1)(c) - No reasonable prospects of success.

[1] On 11 October 2018, Mr Daniel Krcho made a stop bullying application pursuant to s.789FC of the Fair Work Act 2009 (the Act) which stated he was employed as a Professional Officer at the University of New South Wales (UNSW). The application named three employees of UNSW who were alleged to be engaged in bullying conduct against Mr Krcho.

[2] Since filing his application Mr Krcho has made a number of further applications relating to his substantive bullying claim, including one application that was taken on appeal. 1

[3] On 20 February 2020, Mr Krcho was terminated from his employment with UNSW.

[4] On 12 March 2020, Mr Krcho filed an application pursuant to s.773 of the Act alleging that he was unlawfully dismissed. Amongst the remedies claimed in the application was reinstatement with continuity of employment and lost wages. 2

[5] On 7 December 2020, UNSW wrote to the Commission requesting that Mr Krcho’s bullying application be dismissed on the ground that it had no reasonable prospects of success. Mr Krcho was invited by the Commission to provide a response which he did opposing the dismissal of his application.

[6] In opposing UNSW’s application, Mr Krcho submitted that the application was premature and unnecessary while his appeal matter C2020/500 against an interim decision in matter [2020] FWC 181 was still ‘on foot’. 3 Although it is noted that on 25 April 2020 Mr Krcho wrote to the Commission advising that he was not in a position to proceed with that appeal at the time and that on 27 April 2020, the Commission advised Mr Krcho that the appeal would be adjourned to a later date and it has not progressed since.

[7] Mr Krcho’s response of 16 February 2021 also states that he ‘has 21 days to lodge an appeal in the Unlawful Dismissal Jurisdiction’. 4 This appears to be a reference to Mr Krcho’s ability to appeal a decision of the Commission in matter [2021] FWC 140 delivered on 1 February 2021 which dismissed Mr Krcho’s unlawful dismissal application on the basis that it had not been made in accordance with the Act.5 Mr Krcho has subsequently on 21 February 2021 appealed this decision and the appeal has not yet been determined.6

[8] On 24 February 2021, the Commission without making a determination advised the parties that it considered it would be more appropriate for UNSW’s dismissal application of Mr Krcho’s anti bullying application to be determined on the handing down of the appeal decision in matter C2021/893 referred to above.

[9] On 12 March 2021, UNSW’s legal representatives requested that the Commission determine their dismissal application without awaiting the appeal decision in matter C2021/893. As a result of UNSW’s request, directions were issued and that matter was set down for a hearing on 9 April 2021. Subsequently on 25 March 2021 in reply, Mr Krcho made a number of requests to the Commission including that due to his serious health concerns that the matter be dealt with on the papers. 7 As a result, the hearing was vacated and UNSW’s application is now dealt with on the papers.

Submissions of UNSW

[10] In essence, UNSW relies on the length of time since the anti-bulling application was filed, being October 2018 and the fact that Mr Krcho was dismissed from his employment in February 2020. UNSW submits that Mr Krcho has no prospect at all of being reinstated to his employment with the UNSW and therefore is at no risk of bullying at work. 8

[11] It is put that Mr Krcho has unsuccessfully sought to challenge his dismissal, with the Commission dismissing his unlawful termination application on 1 February 2021. Should Mr Krcho’s appeal against this decision be successful it is submitted that ‘it will be years before an outcome is known from a Federal court’. In any event, Mr Krcho can make another bullying application should he be reinstated.

[12] UNSW also points to the applicant’s unsuccessful applications made to date before the Commission regarding his bullying application. 9

[13] Included in UNSW’s submissions were statements from two of the three persons named in Mr Krcho’s application testifying to the adverse impact the application has had on them due to the length of time since it was first filed and that the allegations are without merit.

Submissions of Mr Krcho

[14] Mr Krcho opposes the application to dismiss his claim of bullying and has filed a number of written responses. 10 Much of what Mr Krcho states in opposing the application has no direct bearing on UNSW’s application, but rather traverses previous Commission decisions relating to the application and the conduct of UNSW. What can be distilled from the lengthy responses as being relevant, is that Mr Krcho submits that his claim is meritorious and that his application cannot be characterised as having no reasonable prospects of success.

[15] Mr Krcho submits that there would need to be strong grounds and convincing evidence for his application to be dismissed in circumstances where he has been dismissed in order to terminate his bullying application and where action is being taken to challenge the ‘unlawful’ dismissal. 11 Mr Krcho submits that if he is granted leave to appeal the Commission decision to dismiss his unlawful termination application then there is a prospect of success in being reinstated and enabling stop bullying orders to be made.12

Conclusion

[16] UNSW’s application is made pursuant to s.587(1)(c) of the Act on the ground that Mr Krcho’s claim be dismissed as the matter has no reasonable prospects of success.

[17] Section 587(1) of the Act provides:

“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

[18] As seen from the above extract, the Commission may dismiss an application in circumstances not expressly provided for by paras (a), (b) or (c). This is because of the words “Without limiting when the FWC may dismiss an application” at s.587(1). The Explanatory Memorandum to the Fair Work Bill 2008 states this “provision is not intended to limit FWA’s power to dismiss applications” for other reasons, such as failure to meet jurisdictional requirements.” 13

[19] The relevant section of the Act relating to granting a remedy in the form of an order to an applicant who has lodged a stop bulling application is s.789FF which is in the following terms:

“789FF 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.”

[20] As can be seen by sub s.789FF(1)(ii), the Commission is only able to issue a stop bullying order when satisfied that there is a risk that the worker will continue to be bullied at work. As stated by the Full Bench in Bowker v DP World Melbourne Limited the words “at work” are words of limitation. 14

No reasonable prospects of success

[21] In Wang v Anying Group Pty Ltd [2009] FCA 1500, Foster J of the Federal Court set out the principles which govern the exercise of the Federal Court’s power pursuant to s.31A of the Federal Court of Australia Act 1976, which contained at s.31A the words ‘no reasonable prospect of successfully defending the proceeding’ for the purposes of a party obtaining summary judgement.

[22] Foster J stated at [43]:

“[43] The critical words of s 31A(1), when applied to the present case, require me to be satisfied that the respondents have “… no reasonable prospect of successfully defending the proceeding …”. The following principles may be extracted from the authorities:

(a) The moving party does not have to demonstrate that the defence is hopeless or unarguable;

(b) The Court must consider the pleadings and the evidence with a “critical eye” in order to see whether the respondent party has evidence of sufficient quality and weight to be able to succeed at trial (Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 at [23] (p 382) (per Finkelstein J));

(c) The respondent party is not obliged to present its whole case in order to defeat the summary judgment applicant but must at least present a sufficient outline of the evidence in order to enable the Court to come to a preliminary view about the merits for the purpose of considering the statutory test in s 31A(1)(b) (Jefferson Ford Pty Ltd 167 FCR 372 at [22] (p 382) (per Finkelstein J)); and

(d) The test may require greater scrutiny of the pleadings and evidence in some cases than in others. In my judgment, the words of s 31A(1) compel a flexible approach. The real question in every case is not so much whether there is any issue that could arguably go to trial but rather whether there is any issue that should be permitted to go to trial. This seems to be the approach of Finkelstein J in Jefferson Ford Pty Ltd 167 FCR 372 and of Gordon J in the same case (as to which see [123]–[134] (pp 406–409)), although Rares J in that case at [73]–[74] (p 394) and in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 esp at [45] (p 731) favoured a test which is much closer to the older test articulated in authorities decided under Rules of Court expressed in terms different from the language of s 31A(1)).”

[23] In Spencer v Commonwealth of Australia, 15 the High Court also considered the words ‘no reasonable prospect’ as they appear in s.31A of the Federal Court of Australia Act 1976. The majority16 stated:

“[59] In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim.

[60] Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.”

[24] The fact that an applicant has filed a bullying application and is no longer employed at the workplace is not necessarily fatal to the application as the Full Bench observed in Garth Atkinson v Killarney Properties Pty Ltd T/A Perm-A-Pleat Schoolwear and Adrian Palm and others 17 (Atkinson) in dismissing an appeal against a bullying application that was dismissed as the applicant was no longer employed:

“[35] 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.”

[25] The employee in Atkinson in addition to his bullying application had made a General Protections application described by the member in the first instance in the following terms:

“[11] Mr Atkinson has made a section 365 General Protections application regarding his termination of employment. Whether Mr Atkinson is seeking reinstatement as a remedy is not known. If he is seeking reinstatement there is obviously no certainty as to the success or not of his application. Even if he is successful with his section 365 application there can also be no certainty that reinstatement would be ordered in any event; that would be a decision for the Court.

[12] If at some point in the future Mr Atkinson is indeed reinstated he is not prevented from making a new application under section 789FC of the Act if necessary. The fresh application could then properly consider what may well be changed circumstances given what in all likelihood will have been an extended period of time which has passed and could also take into account the significant new development being the decision of a Court to reinstate Mr Atkinson. As can be seen dismissing this application does not disadvantage Mr Atkinson. Adjourning this application indefinitely because of the remote possibility Mr Atkinson is reinstated at some time in the future is consequently not warranted.” 18

(My underline)

[26] In respect to this point the Full Bench stated at [22]-[23]:

“[22] The fact that, at the time the Commissioner dismissed Mr Atkinson’s s.789FC applications, Mr Atkinson had an unfinalised general protections court application in respect of the termination of his employment on 3 June 2015 and the fact that a court has the power to make a reinstatement order in respect of a general protections court application, do not preclude the Commissioner’s conclusion. Those facts do not mean that at the time the Commissioner dismissed Mr Atkinson’s s.789FC applications there was “a risk that [Mr Atkinson] will continue to be bullied at work” by the individual or group against whom he made the s.789FC applications.

[23] As a consequence of concluding that one of the pre-requisites for making an order to stop bullying in respect of Mr Atkinson’s s.789FC applications was not satisfied, the Commissioner determined that Mr Atkinson’s s.789FC applications had no reasonable prospects of success. There is no error in that determination. The determination is not contrary to authority, including that of the High Court of Australia in Spencer v The Commonwealth.

[24] Having determined that Mr Atkinson’s s.789FC applications had no reasonable prospects of success the Commissioner then exercised his discretion under s.587(1)(c) of the FW Act to dismiss Mr Atkinson’s s.789FC applications. It is evident from the Commissioner’s decisions that, in exercising his discretion to dismiss Mr Atkinson’s s.789FC applications, the Commissioner was conscious of the discretionary considerations raised by Mr Atkinson as to why his s.789FC applications should not be dismissed, including his submissions for relief in respect of his s.789FC applications being constituted by something other than an order. However, the Commissioner was also conscious that Mr Atkinson had made a general protections court application and of the potential consequences of that on Mr Atkinson being able to make another s.789FC application. In the circumstances, it was reasonably open to the Commissioner to exercise his discretion under s.587(1)(c) of the FW Act as he did.”

(My underline)

[27] In this decision the Full Bench also addressed the decision of Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines 19 where Gostencnik DP held:

“[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. An order dismissing Mr Shaw’s application has been made separately in PR550413. 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.”

(My underline)

[28] The Full Bench in Atkinson held at [32]–[33] that they were not persuaded that the decision in Shaw was wrong.

[29] The Act provides support for the presumption that a bullying application ought to be dealt with by the Commission with some urgency. Section 789FE(1) requires the Commission to commence dealing with such an application within 14 days after the application has been made. In this matter Mr Krcho’s bulling application was made approximately 2½ years ago in October 2018, the delay in progressing the application appears to have resulted from the interlocutory and appeal applications filed by Mr Krcho during this period.

[30] In any event, Mr Krcho is no longer employed by UNSW having been dismissed effective from 20 February 2020, a period in excess of 12 months ago. While Mr Krcho did not file an unfair dismissal application, he filed an unlawful termination application on 12 March 2020 pursuant to s.773 of the Act which was dismissed on jurisdictional grounds and the decision is now under appeal by Mr Krcho.

[31] It is accepted that dismissing a matter on the ground of there being no reasonable prospects of success while discretionary is not a determination to be made lightly. An applicant is entitled to the opportunity prosecute their case, but that right is not unfettered. Part of the Commission’s discretionary exercise in this case is that Mr Krcho’s right to make and pursue a bullying application would not be extinguished should he rejoin the employment of UNSW and believe he has been bullied and that a risk exists that he will continue to be bullied, on that basis a fresh application can be made.

[32] While Mr Krcho is pursuing a remedy through his s.773 application (which has been dismissed but is subject to appeal) that includes reinstatement, the outcome of that proceeding is currently unknown and taking the outcome at its most favourable to Mr Krcho will be some considerable time away and most unlikely to be concluded in 2021.

[33] At this point in time, which has existed since his dismissal in February 2020, there cannot be a risk that Mr Krcho will continue to be bullied at work by the persons named in his application as he is no longer at work and is not an employee of UNSW. On this basis (assuming that the alleged bullying is established) the jurisdictional basis for any bullying orders to be made, namely that there is a risk that Mr Krcho will continue to be bullied at work is absent.

[34] Where the Commission does not have the power to make an order to stop bullying, then it must follow that the application has no reasonable prospects of success. I am not satisfied that speculating on the outcome of Mr Krcho’s unlawful dismissal application that would ultimately be determined in another jurisdiction (if it progressed to that stage) at some time in the future, is a consideration that demonstrates Mr Krcho has reasonable prospects of success in this matter.

[35] As such I am satisfied that the stop-bullying application has no reasonable prospects of success as he is no longer employed by UNSW and that it is appropriate in all of the circumstances to dismiss the application.

[36] Accordingly, the application is dismissed under s.587(1)(c) of the Act.

[37] This decision is not reflective of the relative merits of Mr Krcho’s bullying allegations which have not been considered but is based on him no longer being employed at the workplace and being unable to be subject to the risk of continued bullying at the workplace.

al of the Fair Work Commission with member's signature