s.789FC - Application for an order to stop bullying

Application for costs - application for orders to stop bullying at work

• [1] On 21 March 2025, Mr Sunjie Wang discontinued an application against ABC Funds Management Pty Ltd (ABCFM) for orders to stop bullying at work (the bullying application). On 4 April 2025, ABCFM applied in time for an order for costs against Mr Wang in relation to the bullying application under section 611 of the Fair Work Act 2009 (Cth) (Act) (the costs application).

• [2] In support of the costs application, ABCFM submits that:

1. the bullying application was made vexatiously or without reasonable cause, and

1. it should have been reasonably apparent to Mr Wang that the bullying application had no reasonable prospects of success.

• [3] The question is whether costs should be awarded. For the reasons that follow, I have decided that the answer is "No".

• [4] Section 611(1) of the Act provides that generally, parties in proceedings before the Commission must bear their own costs. There are exceptions to this general rule and costs can be awarded in specific circumstances. Section 611(2) of the Act provides for one such exception:

"(2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if:

(a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person's application, or the first person's response to the application, had no reasonable prospect of success."

• [5] Principles governing the interpretation and application of s.611(2)(a) (vexatious or without reasonable cause) were set out in Church v Eastern Health t/as Eastern Health Great Health and Wellbeing[1] and are well established. The relevant principles are summarised as follows:

1. An application is made vexatiously when the predominant motive or purpose of the applicant is to harass or embarrass the other party or to gain a collateral advantage.

1. An application is not made without reasonable cause simply because the application did not succeed.

1. Whether an application is made without reasonable cause may be tested by asking, on the facts apparent to the applicant at the time the application was made, whether there was no substantial prospect of success.

1. If success depends upon the resolution in the applicant's favour of one or more arguable points of law, it is inappropriate to characterise the application as having been made without reasonable cause.

1. An application will have been made without reasonable cause if it can be characterised as so obviously untenable that it cannot possibly succeed, or manifestly groundless, or discloses a case where the tribunal is satisfied cannot succeed.

• [6] Principles relevant to the interpretation of s.611(2)(b) (no reasonable prospects of success) were separately summarised by the Full Bench in Baker v Salva Resources Pty Ltd[2]:

"[10] The concepts within s.611(2)(b) 'should have been reasonably apparent' and 'had no reasonable prospect of success' have been well traversed:

• "should have been reasonably apparent" must be objectively determined. It imports an objective test, directed to a belief formed on an objective basis, rather than a subjective test; and

• a conclusion that an application 'had no reasonable prospect of success' should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable."

• [7] Section 611 is directed towards conduct at the time an application or response is first made. In relation to an application, it requires consideration of whether the application was made vexatiously or without reasonable cause, or whether it should have been reasonably apparent, at the time the application was made, that it had no reasonable prospect of success.[3]

• [8] The bullying application was originally made by Mr Wang on 20 November 2024. The application alleged bullying at work by Mr Zhiping Ma and his son (later identified as Mr Xiao Ma). The alleged bullying occurred on 15 October 2024, when Mr Wang was allegedly beaten by Mr Ma and his son after he confronted Mr Ma about unpaid wages. Mr Wang alleged that he had suffered serious injuries to his head and body and had developed severe anxiety and depression. He advised that he had lost the ability to work.

• [9] Mr Wang sought six things in his application:

1. Tthat the bullying stop immediately and not happen again in the future,
2. That the Ma's apologise for bullying him,
3. That the company provide a department and channel for complaints and solving bullying behaviours,
4. A thorough investigation of the company and whether it has other potential bullying behaviours,
5. His life safety to be protected and no longer threatened, and
6. For other illegal and bullying behaviours in the workplace to be corrected.

• [10] On 26 November 2024, Mr Wang advised the Commission that he wished to amend his application to provide more detail, and that he had sought legal advice. He then filed an amended application on 3 December 2024. This was the version of the bullying application served on ABCFM. In the later version of the bullying application, Mr Wang:

1. Revised the allegations of bullying to state that he had been assaulted twice on 15 October 2024 and had experienced repeated verbal insults in July 2024, and
2. Revised the orders sought as follows:
   1. The Ma's to stop bullying him.
   2. ABCFM to be investigated for malicious exploitation and workplace bullying.
   3. ABCFM correct the lack of safety training and safe working environment.
   4. ABCFM and Mr Ma Junior be punished and fined.
   5. Conferences and hearings.

• [11] There is a dispute about the status of the relationship between the parties. In his application to the Commission on 20 November 2024, Mr Wang stated both that he was still employed by ABCFM and that he was no longer working because he had lost the ability to work. The two positions are not necessarily irreconcilable. Many employees cease work because of illness or injury but remain in employment for some time afterward. But ABCFM denies ever having employed Mr Wang. It accepts that Mr Wang performed work for the business in the capacity of an "unpaid intern" for short periods in December 2023 and mid-2024.

• [12] There is limited evidence in support of either position. An email chain between Mr Wang and a person said to be the 'financial department' for ABCFM about a starting salary and a request to fill out the kind of forms usually required when starting employment indicates the formation of an employment relationship in late 2023. There is no evidence about what happened to the relationship after mid-2024. For example, there is no evidence of any payment of wages or termination of employment either at the initiative of ABCFM or by way of resignation. At all relevant times, it appears that Mr Wang was an international student in Australia. The timing of work performed for ABCFM appears to coincide with university semester breaks.

• [13] I reject the submission that Mr Wang was an "unpaid intern". The email chain above, and the fact that work was performed in at least December 2023 and June-July 2024, indicate a work relationship for which Mr Wang was entitled to payment. The fact that no payment of wages occurred is not determinative. It might mean there was no agreement for Mr Wang to engage in paid work, or it might mean that ABCFM did not live up to its part of the agreement. If I am wrong and Mr Wang was properly characterised as an unpaid intern, nothing turns on it for the purposes of this application. An unpaid intern is capable of being characterised as a "worker" for the purposes of Part 6-4B of the Act (Bullying at work) and may be entitled to apply for orders to stop bullying at work.

• [14] I am not satisfied that Mr Wang's application was made vexatiously. There is no evidence of motivation to harass or embarrass ABCFM or to gain a collateral advantage in the filing of his application. The application was made 5 weeks after Mr Wang says he experienced violence at the hands of Mr Xiao Ma, following an alleged failure by Mr Zhiping Ma to pay him for work performed for ABCFM in two periods, the earliest almost 9 months before. At the time of his application, Mr Wang was unwell. He is an international student who is unlikely to be familiar with the Australian legal justice system. He is not a native English speaker and some allowance must be made for the likelihood that he did not have a full appreciation of how Part 6-4B of the Act applied to his circumstances when the application was made, despite having access to the internet and the ability to conduct online research.

• [15] ABCFM submits that in continuing with the bullying application after it had made an offer to Mr Wang for him to discontinue the application on the basis that it would not seek costs against him, Mr Wang acted vexatiously. The submission is difficult to accept. As noted above, costs are the exception in matters before the Commission rather than the rule. The offer was not much of an offer at all, because the only value it had for Mr Wang relied on the kind of discretionary decision of the Commission that is rarely made and only after the case has been heard and determined. In the circumstances, failure to settle on this basis was not vexatious.

Was the bullying application made without reasonable cause?

• [16] For similar reasons as above, I am not satisfied that the bullying application was made without reasonable cause. Mr Wang asserts that at the time of his application, he was still employed by ABCFM. The orders he sought were protective in nature and directed at preventing further exchanges that may involve threats, as well as an apology and an improvement in business processes. The revised form of orders sought similarly protective measures but also an investigation of ABCFM in connection with its alleged "malicious exploitation and workplace bullying" and related punishment of Mr Zhiping and Mr Xiao Ma. Although Mr Wang described having lost the ability to work, the evidence does not establish this to be the case. A medical certificate of capacity filed with the application is missing the page describing the level and period of incapacity for work. The possibility of a return to work cannot be excluded, although it was unlikely after the October incident. On balance, I would not characterise the application as made on 20 November 2024 as so obviously untenable that it could not possibly succeed, or manifestly groundless, or as disclosing a case that could not succeed.

• [17] The failure of Mr Wang to provide sufficient evidence to support his claims at the time of making the bullying application takes the matter no further. It is neither usual nor necessary for parties to file their evidence in the case at the time of application. That can occur later, if necessary, if the matter is unable to be resolved. I do not accept that the allegations made by Mr Wang were baseless, frivolous or irrelevant to the issues raised. I further note that ABCFM did not bring evidence to establish its own claims that Mr Wang was an "unpaid intern" and not a "worker", despite having the opportunity to do so.

• [18] ABCFM takes exception to the alleged "malicious exploitation" claim made by Mr Wang. But the issues raised in the bullying application are suggestive (although not demonstrative) of illegality. This is the case both in connection with whether Mr Wang had the right to work in Australia under the terms of his visa (and whether ABCFM was permitted to employ him), and in relation to what has come to be known as 'wage theft'. If Mr Wang can establish that he was employed but never paid for his work, the description of this conduct as exploitation may not be unreasonable. There is insufficient material before me to ascertain the intentions of the parties in connection with their arrangements such that I could form any view on whether malice was involved. These are matters that Mr Wang may wish to take up directly with the Fair Work Ombudsman.

Should it have been reasonably apparent to Mr Wang that the bullying application had no reasonable prospects of success?

• [19] I noted above the lack of evidence about the status of the relationship between the parties at the time the application was made. According to Mr Wang, he was still employed, but the October incident had the result that he was no longer able to work. In those circumstances, it is difficult to see how the Commission would be satisfied of the risk that Mr Wang would continue to be bullied at work at ABCFM. Cases that fall into that category are capable of being characterised as having no reasonable prospects of success. However, for the reasons above, further evidence would have been required before any finding could have been made that the application had no reasonable prospects of success in the circumstances. I am not presently satisfied that it should have been reasonably apparent to Mr Wang that his application had no reasonable prospects of success.

• [20] ABCFM submits that Mr Wang did not have a reasonable belief that he had been bullied at work at the time he made the bullying application. I am unable to agree. On the face of the record, the bullying application disclosed serious allegations of worker mistreatment, including a violent assault in October 2024, repeated failure to pay wages for work, and in the amended version of the bullying application, alleged verbal abuse. The reasonableness of the belief as to these matters could only be established by evidence, which had not yet been tested at the time the application was discontinued.

J Fu of Allbright Law for ABC Funds Management Pty Ltd.

[1] [2014] FWCFB 810 at [23]- [33]

[2] [2011] FWAFB 4014; (2011) IR 174

[3] Azad v Hammond Park Family Practice Pty Ltd [2022] FWCFB 110 at [9]

Printed by authority of the Commonwealth Government Printer