[2024] FWC 1754 [Note: An appeal pursuant to s.604 (C2024/4977) was lodged against this decision.]

Fair Work Commission|2024-07-04

Application by Greenan [2024] FWC 1754 (4 July 2024)

[2024] FWC 1754 [Note: An appeal pursuant to s.604 (C2024/4977) was lodged against this decision.]

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

[1] On 20 February 2024, Mrs Carole Greenan (the Applicant) lodged an application with the Fair Work Commission (the Commission), pursuant to section 789FC of the Fair Work Act 2009 (Cth) (the Act).

[2] The Applicant alleges that she has been bullied at work during her employment with Bowen Buchbinder Vilensky (the Respondent) by three individuals (the Persons Named).

[3] One of the Persons Named is an employee of the Respondent, the other two Persons Named are contractors who provide services to the Respondent.

[4] This decision concerns a jurisdictional issue only. Specifically, that the Commission may lack jurisdiction to issue any orders under the Act. This concern arises from the fact that it appears the Applicant was dismissed from her employment and, as a result, the Applicant is no longer a worker and there is no ongoing risk of the alleged bullying.

[5] The Applicant has lodged this application in response to what they allege is bullying behaviour by three individuals during her employment.

[6] The Applicant was the subject of workplace bullying complaints by a coworker in early June 2023.

[7] The Applicant subsequently made workplace bullying complaints of her own in late July 2023.

[8] Specifically, the Applicant has named a Director of the Respondent alongside the Respondent's lawyer and a third-party investigator who were engaged to assist in an investigation into all of the workplace bullying complaints.

[9] Prior to the lodgement of this application, the Applicant had raised complaints about the Director who is named in the application but had not previously made complaints about either of the Respondent's contractors.

[10] The investigation by the Respondent and its contractors was placed on hold as the Applicant was continually unfit for work and the investigation was further suspended due to the lodgement of this application.

[11] The Respondent, its lawyer, and the third-party investigator have objected to the application on the grounds that the alleged bullying behaviour was reasonable management action carried out in a reasonable manner.

[12] The Commission held two conferences with the parties in relation to the application on Wednesday 20 March 2024 and Monday 8 April 2024. However, the parties were unable to resolve the dispute.

[13] On 12 April 2024, my Chambers received a phone call from the Applicant who advised that she had been dismissed from her employment with the Respondent.

[14] Following this phone call my Chambers issued the below email on 17 April 2024:

"The Applicant has advised Chambers that they have been informed of their termination by the Employer. Accordingly, the Commissioner is seeking clarification from the Applicant as to the status of her application and from the Employer regarding the status of the Applicant's employment. If the Applicant has been terminated, the Commissioner seeks confirmation from the Applicant regarding her ongoing intentions with this application. If the application is to be withdrawn, Chambers requests the Applicant confirm discontinuance in writing. If the application is not withdrawn, and there has been a termination, the Commissioner highlights that directions will be issued to deal with the jurisdictional issue arising from the termination instead of the directions previously noted with the parties."

[15] The Respondent's representative (who is also a Person Named in the application) confirmed the below by email on 17 April 2024:

"I confirm that my client terminated Ms Greenan's employment on 12 April 2024 by reason of redundancy. My client paid her in lieu of notice that same day, such that her employment came to an end with immediate effect.

In light of this, it is my client's view that, as Ms Greenan is not at present in the workplace and will not be so in the future, the bullying application should be withdrawn and, if it is not withdrawn, that it should be dismissed."

[16] On Friday 19 April 2024, my Chambers sent an email to the Applicant requesting she confirm her intention in relation to the application. The Applicant sent the following response:

It is my intention to continue with the Application before the Commissioner.

I can now also say that it is my intention to bring an Application for a General Protection Dismissal, which will be with you by 4.00pm Friday 26 April (well within the 21 day limit for applications to be lodged).

I believe, given that pending application, that there is no justification for a dismissal of the current application before the Commissioner.

I believe there is no justification for any alternative path forward, given that the current orders are simply for production of documentation."

[17] In response to the above email from the Applicant, the following email was issued by my Chambers to the Applicant:

"Chambers notes your recent emails indicating you intend to continue pursuing your application and your intention to lodge an application with Commission in relation to your employment's termination. I have provided further information below - I hope this clarifies any confusion regarding our previous request.

The basis for dismissal would be jurisdictional, noting that the Commission cannot make orders in the absence of ongoing risk. Further, it should be noted that any orders made by the Commission in such a matter would be in attempt to mitigate any bullying risk, not for the production of documents. Directions will be issued shortly seeking your reasons for continuing to pursue this Application in light of your employment's termination and your intention to pursue a new application. Information on the Commission's website regarding eligibility to make an application under national anti-bullying laws can be found here. If a decision is made, you are correct in your identification of the appeals process.

Please also ensure you refer to the instructions on the Commission's website regarding the Commission's usual processes for lodgement of new applications. New applications are not to be provided directly to Chambers. Please instead lodge any new application through our online portal or by email to registry."

[18] I issued directions in the matter, requiring the parties file materials regarding the jurisdictional issue.

[19] The directions issued, alongside a refusal for orders requiring attendance, were the subject of an appeal lodged by the Applicant. The Applicant applied for a stay of proceedings which was refused.[1]

[20] The parties filed their respective submissions and evidence as requested.

[21] A Hearing was held in relation to the jurisdictional issue on 23 May 2024.

[22] At the Hearing, the Applicant provided evidence as to why her application should not be dismissed. Mr Buchbinder provided evidence on behalf of the Respondent.

[23] At the Hearing, both the Applicant and the Respondent raised issues that are outside the scope of the issue to be determined, such as issues pertaining to the merit of the application in its entirety or the Applicant's General Protections claim.

[24] This decision considers that material in accordance with the relevant requirements of the Act.

[25] I have concluded that this anti-bullying application will be dismissed, pursuant to section 587 of the Act, as there are no reasonable prospects of success.

[26] The Act's provisions in relation to anti-bullying are contained within Part 6-4B - Workers bullied at work, with section 789FD of the Act setting out the circumstances of when a worker is bullied at work:

(a) while the worker is at work in a constitutionally-covered business:

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:

(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."

[27] Section 789FF sets out the powers of the Commission to make orders in the event that it is satisfied there is bullying at work:

(a) a worker has made an application under section 789FC; and

(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

[28] Section 587 of the Act provides a discretion to dismiss an application if, inter alia, the application has no reasonable prospect of success.

[29] Section 587 of the Act, in its entirety, provides as follows:

(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

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

[30] The Applicant submits that the application should not be dismissed consistent with section 789(2) of the Act, as there are issues of fact that have not been properly aired or investigated.

[31] The Applicant submits that as she intends to dispute her dismissal through an application under section 365 of the Act - a General Protections involving dismissal matter, the Commission should not dismiss this application until that application has been resolved.

[32] The Applicant's submissions outline the matters in contention regarding the termination of her employment.

[33] The Applicant acknowledges that the facts surrounding her termination of employment will be heard in another forum.

[34] The Applicant submits that if any order for reinstatement is made by the Court, the "issues of bullying remain real, and the chance of the bullying continuing are extraordinarily high".

[35] The Applicant submits that it is impossible for the Commission to "predetermine any outcome of the Application for General Protections Dismissal" and that "given the significant chance that I will return to work at BBV Legal, my current Application in relation to bullying has a very significant chance of success".

[36] The Applicant submits that as there is a "significant chance" she returns to work, it would be "improper for an Application to be dismissed because of its lack of reasonable chances of success. It is also apparent that the test of whether there is a reasonable chance of success is based on facts that are, or will be, in dispute."

[37] The Applicant submits that it would be improper of the Commission to dismiss her application until her General Protections application has been determined, as there are still facts in dispute between her and the Respondent.

[38] The Applicant submits that this application could be adjourned until the substantive matter of the General Protections application is resolved, in the event that the Court makes an order for the Applicant's employment to be reinstated.

[39] The Applicant gave evidence at the Commission that she believes she was bullied at the Respondent, but that she would like to return to the workplace and believes that, if she was reinstated, she could continue to work at the Respondent.

[40] The Applicant also gave evidence that two of the Persons Named are from other companies who were engaged to investigate the bullying allegations against the Applicant.

[41] When providing evidence, the Applicant confirmed that, as the investigation has been terminated by the Respondent, there would be no need for her to have any further interaction with two of the Persons Named if she was reinstated to the Respondent.

[42] Under cross-examination, the Applicant confirmed that she had not attended the workplace to complete work after July 2023.

[43] She also confirmed that, whilst she was challenging the termination of her employment, at the time of the Hearing, she was not employed by the Respondent, and is not required to have any interaction with the Persons Named in the application outside of the legal proceedings in question.

[44] The Applicant made additional submissions in relation to matters concerning the substantive application before the Commission including:

Previous work practices of the Applicant whilst employed with the Respondent.

The allegations of workplace bullying against the Applicant herself.

The Applicant's opinion in relation to the management of the bullying investigation regarding her own behavior.

The Applicant's opinion of the conduct of the Persons Named in the application in relation to the bullying investigation.

The Applicant's opinion in relation to the legitimacy and validity of the bullying allegations against herself.

The Applicant's opinion in relation to her "sham redundancy".

The Applicant's allegations that the Respondent had falsified evidence to the Commission.

[45] The Respondent submits that the Applicant's employment was terminated on 12 April 2024, by way of redundancy.

[46] The Respondent submits that the alleged bullying outlined in the application by the Applicant related to the conduct of the Respondent and its third-party contractors in addressing bullying complaints made against the Applicant by a fellow coworker.

[47] The Respondent submits that, as the Applicant ceased being an employee on 12 April 2024, the workplace investigation into the Applicant's conduct was subsequently terminated.

[48] The Respondent submits that, outside the ongoing legal proceedings commenced by the Applicant in relation to the termination of her employment and this application, there is no reason that any of the Persons Named would be in contact with the Applicant.

[49] The Respondent submits that, unless the Respondent is directed to reinstate the Applicant's employment, there is no risk that the Applicant can "continue to be bullied at work".

[50] The Respondent acknowledges that The Federal Court or Federal Circuit and Family Court have the power to order reinstatement of the Applicant's employment.

[51] The Respondent submits that the chances of a reinstatement order being made by the Courts are effectively nil, given:

The Applicant's position as a receptionist has been made redundant and there is no evidence to suggest that the Applicant could fulfil any alternative position with the Respondent.

The Applicant has been absent from the workplace since July 2023.

That, from the material submitted by the Applicant, the required level of trust and confidence in an employment relationship has been permanently and irretrievably broken.

[52] The Respondent submits that the Applicant's request for the application to be adjourned sine die until the conclusion of her General Protections application is unfair to the Persons Named in the application.

[53] The Respondent submits that a General Protections application such as this may take years to resolve (without considering the possibility of appeals).

[54] The Respondent submits that it would be prejudicial to the Persons Named in the application to have this application "hanging over their heads for this period, particularly when the chances of Ms Greenan being reinstated are negligible".

[55] The Respondent submits that this application should be dismissed, as the Applicant is not currently employed by the Respondent and is not currently at risk of being bullied by the Respondent.

[56] The Respondent submits that "in the unlikely event that Ms Greenan was reinstated, there would be nothing to stop her, at that time, from making a new bullying application based on events as they transpired once she returned, or attempted to return, to the workplace."

[57] The Respondent submits that there were other matters and allegations raised by the Applicant in relation to allegations of falsified evidence being provided to the Commission by the Respondent. The Respondent submits that these allegations "are irrelevant, as well as being vexatious and/or scandalous".

[58] In support of the jurisdictional objection, Mr Buchbinder of the Respondent provided witness evidence which confirmed the below:

On 10 April 2024, the Applicant was notified that the business was undergoing a restructure following an operational review, and that the Applicant's position as a receptionist would be made redundant.

The Applicant was given until 4:00PM on 11 April 2024 to respond to the notification of the restructure.

The Applicant provided a response on Friday 12 April 2024.

On 12 April 2024, the Respondent terminated the Applicant's employment and on 15 April 2024 provided the Applicant with a final pay slip.

[59] The Applicant's representative had numerous questions for Mr Buchbinder under cross examination, however the above factual items which confirmed the termination of the Applicant's employment were not challenged.

[60] The main questions under cross examination were primarily focused on the merit of the application and potential matters for the General Protections application.

[61] In Bibawi v Stepping Stone Clubhouse Inc t/a Stepping Stone & Others,[2] the Full Bench, when dealing with a dispute as to whether an Applicant was a worker in an application made pursuant to section 789FC of the Act, stated:

"[17] Section 587(1)(a) of the FW Act empowers the Commission to dismiss an application where it has not been made in accordance with this Act, and s 587(1)(c) similarly empowers dismissal where an application has no reasonable prospects of success. This power may be exercised summarily - that is, an application may be dismissed pursuant to s 587(1) prior to a full hearing being conducted. Full Bench decisions such as Townsley v State of Victoria (Department of Education & Early Childhood Development) and Toma v Workforce Variable Pty Ltd have emphasised that the power to dismiss applications summarily should be exercised cautiously and sparingly, consistent with the principle stated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW):

"... the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion ... the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action ... is clearly demonstrated." (references omitted)

[62] The relevant remedy in respect of an application for an order to stop bullying is an order which the Commission considers appropriate "to prevent the worker from being bullied at work by the individual or group".[3]

[63] The discretion to make an order to stop bullying can only be exercised if the Commission is satisfied that:

the worker has been bullied at work by an individual or a group of individuals; and

• there is a risk that the worker will continue to be bullied at work by the individual or group of individuals.[4]

[64] Therefore, before issuing an order under section 789FF of the Act, the Commission must be satisfied there is a risk that the worker will continue to be bullied at work.

[65] If the Commission is not satisfied there is a risk that the worker will continue to be bullied at work by the individual or group of individuals, the application must fail.

[66] Accordingly, even if I was satisfied the Applicant has been bullied at work by an individual or group of individuals, I must also be satisfied there is a risk that she will continue to be bullied at work by the individual or group of individuals and that it is appropriate to make an order to prevent her from being bullied at work.

[67] Absent the existence of a risk of continued bullying at work by the individual or group of individuals, there is an absence of power to make an order.[5]

[68] I again note the considerable amount of material and submissions before the Commission made by the Applicant in relation to the merit of the alleged bullying claims. Simply because the Commission has not explicitly discussed each item raised by the Applicant, in this decision, does not mean such submissions have been ignored. The matters discussed within this decision have been focused on those most relevant and compelling in regard to the issue to be determined.

[69] I accept that there may exist a scenario in which an applicant is not actively in the workplace, yet the dismissal of the application, on the same jurisdictional grounds being considered here, may not be appropriate. For example, if it is clear that there is a tangible chance the circumstances may change in the near future, and such applicant would again be thrown into the midst of a working environment where they will be subject to alleged bullying they have previously experienced in that same working environment. I am not satisfied this applies to the current matter.

[70] The Applicant contends that she may be reinstated upon the conclusion of her General Protections application; this is her strongest argument in regard to the matter not being dismissed as a result of the jurisdictional issue. Unfortunately, this argument in itself is weak.

[71] There is no evidence supporting the assertion that the Applicant will be reinstated that would satisfy me that the application should continue, other than the mere existence of the General Protections application itself. Rather, there is evidence to the contrary, as noted by the Respondent, in relation to the extremely poor relationship that now exists between the parties.

[72] Further, there are several factors that suggest against a finding that the Applicant is at ongoing risk in a way that would enable the Commission to entertain this application:

The General Protections application will not be finalised for quite some time. As the Respondent has correctly pointed out, the General Protections application and subsequent legal proceedings could last more than 12 months (not including potential for appeals or delays).

As a remedy, reinstatement, unlike in an unfair dismissal claim, is not required to be considered as the primary remedy in the first instance; it is but one remedy open to the Courts to make should the Applicant be successful in that application.

There are often factors complicating the suitability of reinstatement as a remedy. It is only considered in circumstances where appropriate, particularly in reference to the relationship between the parties. Additionally, as the Respondent asserts the position is now redundant, this, while not ruling out reinstatement, would further call into question the suitability of reinstatement if the Applicant is successful.

Even if the General Protections application is to conclude in the favour of the Applicant, with reinstatement found to be appropriate, there remains the question of whether the Applicant would continue to be subject to the alleged bullying upon reinstatement.

By such time as the above were to have occurred, the working environment may have undergone drastic changes such that the alleged bullying could no longer occur.

[73] In such circumstances, the existence of ongoing risk is so remote that I cannot identify circumstances, not reliant on the conclusion of potentially lengthy related proceedings, in which the power to make an order exists.

[74] I agree with the Respondent that it is prejudicial to the Persons Named in this application to have this matter "hanging over their heads" for an extended period, when, if reinstated, the Applicant is welcome to lodge a further application and the Commission would be in better position to entertain such application at that point in time.

[75] On the material before me, I consider the pre-requisites for the making of any orders pursuant to section 789FF(1) of the Act cannot presently be met because there is no risk that the Applicant will continue to be bullied at work.

[76] I am persuaded that the application the Applicant has made has no reasonable prospects of success and I am satisfied it is appropriate in the circumstances of this case to exercise my discretion pursuant to section 587(1)(c) of the Act to dismiss the Applicant's anti-bullying application. An order to that effect has been issued.[6]

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Health and Safety Act 2011

Application by Greenan [2024] FWC 1754 (4 July 2024)

At a glance

Court

Decision date

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Judgment (142 paragraphs)

Application by Greenan [2024] FWC 1754 (4 July 2024)

Legislation Cited (2)