Fair Work Act 2009_

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

L E Stewart Investments Pty Ltd t/a Southern Highlands Taxis and Coaches; Laurie Stewart; Robert Carnachan; Nick Matinca

[1] On 17 March 2014 Mr Paul Hill made an application to the Fair Work Commission (Commission) under s.789FC(1) of the Fair Work Act 2009 (the Act) for an order to stop bullying. The application, in summary, alleged that Mr Hill had been bullied by Mr Laurie Stewart, Mr Robert Carnachan and Mr Nick Matinca during his engagement as a taxi driver with L E Stewart Investments Pty Ltd trading as Southern Highlands Taxis and Coaches.

[2] Mr Hill's application was the subject of a telephone conciliation conference conducted on 3 April 2014. That conference was not successful in achieving a resolution of the matter. Accordingly the matter was set down for hearing in Wollongong on 10 July 2014. Directions were issued on 24 April 2014 requiring Mr Hill to file an outline of submissions, witness statements and any other documentary material upon which he intended to rely by 4 June 2014. The respondents were required by the directions to file their material in reply by 2 July 2014.

[3] In response to these directions, on 4 June 2014 Mr Hill filed a two page untiled document which contained a mixture of factual assertions and submissions. On 12 June 2014 Mr Stewart sent an email to my Associate querying whether Mr Hill had complied with the directions and asking for confirmation that the respondents had to file their material by 2 July 2014. In accordance with usual practice, this email was copied by my Associate to Mr Hill. Mr Hill then sent what might fairly be described as a vituperative email to Mr Stewart later the same day. This led to a number of emails being exchanged between the parties and my Associate. Those emails included the following email sent by Mr Hill to my Associate at 12.57pm on 19 June 2014:

"I remind you that during initial submissions you refused me any "advice" or assistance relying on the "commission does not investigate complaints".

For example Mr Stewart did not properly file his submissions and yet your office was very helpful sending me the submission despite the fact to this day Mr Stewart has not properly served his first response. And he is seeking to serve his further submissions outside of the Courts rules, you and Mr Stewart do not get to make this stuff up as you go along.

You made no comment on my asking for your assistance regarding Mr Stewart sending me documents as part of your process intended to blackmail me or how do I protect my witnesses from being dropped of the roster or being further intimidated, apparently the victims are not your concern.

There were other matters that I raised with you and you refused to even answer questions about them.

I demand an explanation as to why Mr Stewart appears to be getting free advice from you and your office, while you are right any correspondence must be copied to all parties. You know better than I that you cannot copy the other party in when you feel like it, you have acted against every Courts Rules.

Nor are you or your office allowed to make comments and offer advice to one party only, you have damaged my submissions without my knowledge and without any right to do so.

You do not have the right to categorise a victims frustration as "arguably" & "regrettable" and ignore another parties failure to follow process and attempts to intimidate and blackmail.

For the record I have been given (by current staff) and will submit the companies own documents and files, memo's and text messages in my evidence. Which includes sworn and written statements from the 5 witnesses.

I know as I have not named the witnesses you would consider that they would not be allowed to testify (legal advice you should not have given to Mr Stewart), however in final submissions after Mr Stewarts I will submit to his honour that as each current employee have reasonable grounds to expect termination when identified that their names be withheld.

Following your explanation which I demand immediately as to why you feel entitled to assist one party by damaging the other I will next demand his honours view on your actions and its effect on my rights.

I will also be making complaint to the Ombudsman and through other avenues."

[4] Because Mr Hill's email referred to an intention to rely on five witnesses statements and other documentary material which had not been filed and served by him in accordance with the directions, I determined to list a directions hearing in order to clarify the position in this respect and, if necessary, to issue further directions. Accordingly, at 1.54pm on 19 June 2014, my Associate sent the following email to the parties:

In light of the recent correspondence the Vice President has determined that a further directions hearing should be conducted by way of telephone.

As a matter of urgency, could the parties please advise of their availability for the telephone directions to take place at 9.30am tomorrow morning."

[5] Mr Stewart subsequently advised by email later that day that he was available for the telephone directions hearing set to take place on 20 June 2014. No advice was received from Mr Hill.

[6] On 20 June 2014 my Associate again attempted to telephone Mr Hill twice between 9.00am and 9.30am. There was no answer to either telephone call. Mr Stewart was consequently advised that the telephone directions would not be proceeding that morning as proposed.

[7] At 2.04pm on 23 June 2014 my Associate sent the following email to Mr Hill copying in Mr Stewart:

Last week I sent you an email and attempted to contact you by telephone to arrange a further telephone conference. I have yet to hear from you in regards to that correspondence.

Could you please advise, as a matter of urgency, of your availability on Wednesday and Thursday of this week to participate in a further telephone conference."

[8] Mr Hill did not reply to the above emails nor did he return further telephone calls from my Associate.

[9] On 2 July 2014 the respondents filed witness statements, submissions and other documents in accordance with the directions.

[10] On 4 July 2014 an email was received in chambers from Mrs Cassandra Hill. The email simply stated, "My husband is not well enough to deal with this matter and I would not let him work for people like this".

[11] Later that day my Associate sent an email to Mr Hill, which was copied to Mrs Cassandra Hill and Mr Stewart, as follows:

I note the below correspondence from your wife which we have received stating that you are "not well enough to deal with this matter". I infer from the email that you may not be in a position to attend the hearing of your anti-bullying application listed in Wollongong for next Thursday 10 July 2014.

If that is the case, there are two options available to you:

1. File a Form F50 - Notice of Discontinuance. I have attached a copy for your convenience. A discontinuance has the effect of bringing the proceeding to an end.

2. Apply for an adjournment of the hearing. An adjournment application would need to be supported by satisfactory evidence (including medical evidence if necessary) demonstrating your inability to attend the hearing.

Otherwise the hearing will proceed as listed. If you do not attend the hearing the matter may be dismissed in your absence."

[12] No response to the above email was received.

[13] On 9 July 2014 my Associate attempted to telephone Mr Hill on the mobile number and home number identified in his application in order to ascertain whether he intended to attend the hearing in Wollongong listed the following day. There was no answer on either line. A voicemail message was left on the home number requesting Mr Hill confirm his attendance at the hearing listed for tomorrow in Wollongong, or to advise of his intention to discontinue the matter. No response was received from Mr Hill. In addition, the following email was sent by my Associate to Mr Hill at 12.06pm that day:

I am writing to confirm that your anti-bullying application remains listed for hearing at 10.00am tomorrow at Level 6 , 90 Crown St, Wollongong 2500.

If you wish to pursue your anti-bullying application you are required to attend. If you do not intend to pursue your application and you do not wish to attend the hearing in Wollongong tomorrow you should promptly discontinue your application to save costs and inconvenience to the Commission and the respondent. I have attached a Notice of Discontinuance Form F50 for your convenience should you wish to fill it in and serve it by email."

[14] No response to the above email was received.

[15] On 10 July 2014 the hearing of the matter commenced in Wollongong at approximately 10.05am. The respondents, who were self-represented, announced their appearances. Mr Hill was not in attendance at the hearing.

[16] At approximately 10.10am the hearing was adjourned for half an hour. At 10.15am and again at 10.30am my Associate attempted to call Mr Hill on both his mobile number and home number. A message was left on the mobile number advising that the hearing had commenced as listed in Wollongong. Mr Hill did not answer or reply to the telephone calls.

[17] The hearing resumed at approximately 10.40am. There was still no appearance by Mr Hill. A direction was then issued ex tempore to the effect that Mr Hill was required to file and serve within seven days a satisfactory explanation, with supporting evidentiary material, for his failure to attend the hearing, and that any failure to do so would cause the application to be dismissed. The respondents having foreshadowed an intention to apply for costs, a further direction was issued requiring the respondents to file and serve any application for costs pursuant to s.611 of the Act supported by brief submissions within a further seven days. The matter was then adjourned. The directions were subsequently confirmed in writing and sent to Mr Hill and the respondents.

[18] On 17 July 2014 an email was received in chambers from Mrs Cassandra Hill. The email raised a number of issues concerning the merits of Mr Hill's case. Insofar as Mr Hill's non-attendance at the hearing on 10 July 2014 was concerned, the email stated the following:

"In relation to my husband having a reasonable excuse for not attending, I must throw myself at your mercy, my husband is very close to having a nervous breakdown, I had to step in, I told him I had advised the court that he did not want to proceed.

I know understand I should have completed a discontinue form, I apologize for not doing this, I will not allow my husband to continue with this matter and therefore I ask you to dismiss."

[19] The above passage in the email appeared to indicate a desire not to proceed with the application, but it was unclear whether this communication had been authorised by Mr Hill. Consequently an email was sent from my chambers to Mrs Cassandra Hill and copied to Mr Stewart. The email stated, "If Mr Hill wishes to discontinue the matter could you please fill in the attached F50 - Notice of Discontinuance and send it back to me as soon as possible." No reply was received to this email.

[20] On 18 July 2014 an email was received from Mr Stewart and stated as follows:

"We note that Mr Paul Hill finally complied with your directions to provide an explanation for his failure to attend the hearing on 10 July, 14. Whether the explanation is satisfactory to you is unknown to us. We also note that you have provided Mr Hill through his wife with another Notice of Discontinuance, which it would appear has not been completed or returned to you as yet.

Only this afternoon both Messrs Carnachan & Matinca asked how long they must suffer this process & hence the reason I am emailing you now.

Your Directions dated 10 July were to the point in that the matter should be conclusive by 5.00 pm yesterday however we are still at the behest of Mr Hill.

From all evidence supplied to you by us it would be evident that we are not the guilty party but have been held to blackmail because we refused to reinstate Mr Hill when he resigned & caused a significant disturbance within this business. We realise that the Bullying Legislation is very new & while we support its introduction & the management of the law by yourselves it would appear that there must be some "filtering" or mechanism whereby innocent parties can be protected from those who wish to abuse the system & use it to their improper advantage. Interestingly Mrs Hill states in her email of yesterday that her husband is a bankrupt therefore he had nothing to lose with this entire process but everything to gain including causing us additional work, expense & emotional pressure.

We look forward to hearing from you & bankrupt or not, should you wish to conclude this matter against Mr Hill then we would appreciate for the record costs being awarded against him."

[21] On Monday 21 July 2014 a telephone call was made by my Associate to the home telephone number of Mr Hill. Mrs Cassandra Hill answered the call. My Associate inquired whether Mr Hill intended to discontinue his application. Mrs Hill advised that Mr Hill was going to discontinue the matter and would do so by way of email. However, no further communication has been received from either Mr or Mrs Hill to that effect.

[22] Section 587 of the Act, which is concerned with the dismissal of applications, 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

(c) the application has no reasonable prospects of success.

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:

[23] I have determined to dismiss Mr Hill's application, for two reasons. The first is that there has been a failure by him to prosecute his application since approximately 19 June 2014. This has been demonstrated by his failure to respond to the request to arrange a directions hearing, to attend the hearing, and to give any response to various requests from my chambers for him to provide advice as to his intentions with respect to the application. Mrs Hill's email of 17 July 2014 suggests that Mr Hill may, at some point prior to the hearing dated, have acquiesced in her decision that he not proceed with his application, although as earlier stated it is not clear whether Mr Hill authorised the contents of that email. It is certainly the case that since 19 June 2014 Mr Hill has done nothing whatsoever to prosecute his application. Mrs Hill's indications that Mr Hill may be suffering from an illness do not adequately explain why no effort was made by Mr Hill to communicate to the Commission or the respondents that he would not be attending the hearing, to seek an adjournment, or to respond to the Commission's queries as to his intentions.

[24] The second reason is that I do not consider that Mr Hill's application has any reasonable prospects of success. Under s.789FF(1)(b)(ii) of the Act, it is a prerequisite for the making of an order to stop bullying that the Commission be satisfied that "there is a risk that the worker will continue to be bullied at work by the individual or group". On the facts as stated in Mr Hill's application, it is clear that the working relationship between himself and L E Stewart Investments Pty Ltd (the precise nature of which was in dispute) ended on 11 March 2014 and has not resumed since that time. There is nothing in the application or in the document which Mr Hill filed on 4 June 2014 pursuant to the directions which would provide any basis for the Commission being satisfied that there is any risk that Mr Hill would continue to be bullied at work by the respondents. Mr Hill sought to characterise certain conduct allegedly engaged in since 11 March 2014 by Mr Stewart as bullying, but on no view could that conduct constitute bullying at work, since as stated no working relationship of any type involving the respondents has existed since that date. The respondents emphatically denied the various allegations of bullying made against them by Mr Hill, and the allegations were never put to the test because Mr Hill did not attend the hearing, but even if Mr Hill had been able to make out those allegations, he could not have succeeded in obtaining an order to stop bullying because the s.789FF(1)(b)(ii) requirement could not have been satisfied.

[25] The application is dismissed. The respondents have foreshadowed an intention to apply for costs. I direct as follows:

(1) The respondents shall file and serve a submission itemising the costs which they apply for and the basis upon which such costs are sought on or before 5.00pm on 1 August 2014.

(2) Mr Hill shall file and serve any submission in reply to the costs application on or before 5.00 pm on 8 August 2014.

L. Stewart on his own behalf and for L E Stewart Investments Pty Ltd t/a Southern Highlands Taxis and Coaches

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