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[2018] FWC 6691
General information, not legal advice.
Fair Work Commission
2018-10-31
Original judgment source is linked above.
s.789FC - Application for an order to stop bullying
Application for an FWC order to stop bullying - preliminary issue - request for interim orders - principles considered - significant formal undertaking provided by employer - balance of convenience against making interim orders - liberty to apply granted - matter to be assigned to Member for conference to be conducted.
[1] On 11 October 2018, Professor D.K. made an application for stop bullying orders under s.789FC of the Fair Work Act 2009 (the Act). The application alleges various elements of "mob" bullying conduct by his Faculty Director, immediate Supervisor and School Manager in the context of his employment at a major tertiary institution (the employer). The employer and the three named individuals are collectively the respondents in this matter.
[2] Along with the substantive s.789FC application, D.K. also made a separate application for an interim order "to prevent my dismissal". The interim order application was heard by me in advance of the consideration of the substantive application. Indeed, responses to the substantive application are due shortly.[1] However, given the request for the urgent interim orders, the Commission provided an opportunity for the respondent parties to provide a response to that matter and it was listed for hearing by telephone at relatively short notice.
[3] This decision deals only with the interim order application, which was opposed by the respondent parties.
[4] At the hearing, the respondent parties sought permission to be represented by a lawyer pursuant to s.596 of the Act. Having considered the submissions advanced in support of that request, and D.K.'s submissions opposing that course of action, I advised that I was not persuaded that I should grant permission for the purposes of the interim order application. In so doing, I advised that I would subsequently provide reasons, which I now do at the conclusion of this decision. I note that the employer was then represented by its employed Legal Counsel and other officers who were already in attendance. D.K. appeared along with his wife who assisted with the presentation of his case.
[5] In the normal course, the interests of open justice mean that decisions of the Commission will generally identify all parties.[2] In all of the particular circumstances of this matter, I have "de-identified" the names of the parties and individuals in this decision. These circumstances include the nature of some of the matters considered in this application. Further, and of more significance, this matter involves the alleged conduct of the applicant and a number of individuals, who have not given evidence. In the case of the employer and persons named, they have also not yet provided a response to the substantive application. The fact that this decision is being issued before all relevant parties are fully engaged in the processes of the Commission is a significant factor. Further, the identification of the workplace would also tend to identify the applicant and other individuals concerned. I also note that this matter has been heard in a private hearing and all parties either supported, or did not oppose, the issuing of a decision in this form.
[6] I would observe that many of these considerations would not apply to any hearing of the substantive application and this will be a matter for the Commission at that time.
[7] Section 589 of the Act provides as follows:
(1) The FWC may make decisions as to how, when and where a matter is to be dealt with.
(2) The FWC may make an interim decision in relation to a matter before it.
(3) The FWC may make a decision under this section:
(4) This section does not limit the FWC's power to make decisions."
[8] In written submissions, which were prepared by external legal advisors,[3] the respondent parties accepted that an interim order can be made by the Commission under this provision.
[9] The principal basis of the application for interim orders was stated by D.K. in the following terms:
"I also need an urgent interim order to prevent my employer from dismissing me before this bullying is properly investigated and addressed".[4]
[10] The grounds relied upon by D.K. may be summarised as follows:
The employer has an imminent interest in denying the bullying given its status and the nature of the conduct;
The faculty concerned is currently undergoing restructuring and massive layoffs and bullying has become an integral tool of a new managerial style of controlling labour;
Implied threats of reductions in staffing have been made; and
There is a very real prospect of dismissal because the employer has threatened that course of action by virtue of a letter of 18 September 2018 and other references to the disciplinary procedures in the relevant Enterprise Agreement, which include that sanction, and due to other threats and circumstances.
[11] D.K. referred to a series of other very serious claims of bullying conduct, and what he considered to be the consequences for others in the workplace, including those involving former employees, and the correspondence set out in the substantive application, to support these contentions.
[12] D.K. also contends that the interim order is necessary to ensure that he is not dismissed in order to preserve his capacity to have the substantive application dealt with on its merits and that the undertakings referenced by the employer were insufficient or not appropriate.
[13] The respondent parties denied that there had been any bullying conduct and contended that any action taken was reasonable management action taken in a reasonable manner. In any event, the respondent parties indicated in written submissions dated 25 October 2018 that there was no basis for the making of an interim order because:
At present, there is no pending restructure of the applicant's faculty that will impact upon his employment;
There is no recommendation made or prepared seeking to terminate the employment of the applicant;
The terms of the disciplinary letter relied upon by the applicant only proposes to issue a final warning and not dismissal; and
The employer has informed the applicant that the proposal to issue a warning had been put on hold pending the resolution of his complaints.
[14] The employer also indicated in written submissions that should these circumstances change, it would give the applicant at least 5 days' notice to enable him to pursue an interim order application.
[15] In response to concerns raised by the applicant about the scope and import of this position, the employer subsequently confirmed a written undertaking to the Commission to the following effect:
- The employer's proposal to issue a warning to the applicant as proposed in its letter of 14 September 2018 will be paused pending resolution of his complaints (including the s.789FC application); and
- If the circumstances referred to in the respondent's submissions dated 25 October 2018 subsequently change such that the applicant's employment is at threat, the employer will:
- Give the applicant notice of the change; and
- Take no action to implement the change until the resolution of any further application by the applicant for an interim order,
provided that the applicant makes such a further application for an interim order within 7 days after the applicant receives the notice referred to in (a).
[16] The written undertaking was provided by email following the hearing on 29 October 2018. However, the terms of the undertaking were provided orally during the hearing and subject to relatively detailed submissions by the parties.
[17] The potential application of interim orders in the anti-bullying jurisdiction was discussed by this arm of the Commission in Bayly.[5] This was referenced in the submission of the employer and adopted in other matters.[6]
[18] Subject to what follows, I adopt without repeating the approach in this matter that I took in Bayly and the authorities cited in that decision. This involves the consideration as to whether a prima facie case (or a "serious question" to be tried) has been made out by the applicant and whether the inconvenience or injury which the applicant would be likely to suffer if an interim order were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted (the balance of convenience). Further, the nature of the remedy provisions of s.789FF of the Act should inform the consideration of the request for interim orders and the nature of any discretion to be exercised. However, the purpose of the interim orders, including to preserve the capacity to advance the substantive application in appropriate circumstances, must also be considered.
[19] In addition, given the scheme of the Act, interim orders of the nature being considered here should not be issued lightly. The direct intervention of the Commission at such an early stage of proceedings should be exercised with considerable caution. Further, the mere indication that a disciplinary process was involved in the complaints of workplace bullying, without much more, is unlikely to trigger the balance of convenience necessary for such action. Each application must be considered in its own right and circumstances.
[20] I would also respectfully observe that the earlier approach adopted by Gostencnik DP in Worker A, B, C, D and E v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and others[7], where interim orders were made in a s.789FC anti-bullying application to prevent the escalation of probable bullying conduct, is also consistent with the general approach adopted to these matters.
[21] The application for interim orders has been made very early into the Commission's processes for dealing with the s.789FC application. That is, prior to the point that the Commission is to conduct a conference or hearing to deal with that application. Indeed, in this matter, formal responses to the application had not been provided at the point of consideration of the interim order application. As a result, whilst the Commission is aware of the contentions made in the s.789FC application it has not heard evidence or any detailed submissions about the various issues and facts apparently in dispute.
[22] I am satisfied that D.K.'s case, if supported by relevant evidence, is capable of providing a foundation for an application in this jurisdiction. That is, the nature and extent of the alleged conduct of the respondent parties is significant and serious and may, if found by the Commission, be capable of demonstrating bullying conduct within the meaning of s.789FD of the Act. However, that basis is to be strongly contested by the respondents; but in any event, that is not the test for consideration of an interim order. Ultimately, given my findings below, it is not necessary to reach a conclusion about whether a prima facie case (or a "serious question" to be tried) has been made out within the meaning of the authorities.
[23] As contended by D.K., the potential dismissal of an applicant in these circumstances may be prejudicial to their capacity to have the stop bullying application heard and determined on its merits. See the discussion of the implications of dismissal for an applicant in a stop-bullying matter in Bayly.[8]
[24] However, in this case, I am not satisfied that the balance of convenience is such that interim orders should be made given the formal written undertaking provided by the employer. I consider that that undertaking satisfactorily deals with the immediate concerns raised and relied upon by the applicant in support of the interim order application.
[25] In so finding, I have had regard to concerns raised by the applicant about the timeframes for the notice of any change and the consequences for him in potentially having to make a further interim order application if required. In that regard I note that:
The foreshadowed warning is paused pending resolution of the s.789FC application;
The nature of any restructuring that might otherwise impact on the applicant's job security is such that formal processes are required under the terms of the relevant Enterprise Agreement and there is no evidence that such is imminent in relation to the relevant faculty;
The minimum 7 day stay on any change to the position that presently confirms that the applicant's employment is not in jeopardy would commence only after the applicant has received actual notice of any change and would continue until the Commission had dealt with any subsequent interim order application;
The applicant retains access to his post office box (at the employer's facility) - which may be used to provide any formal notice given that he apparently does not have ready access to any private or work email communications - despite presently being absent from work due to incapacity; and
This would give a reasonable opportunity to make a fresh application for an interim order in the event that this becomes necessary.
[26] Accordingly, I do not intend to issue interim orders at this juncture of the proceedings. Liberty is granted for D.K. to make a further application should the relevant circumstances significantly change so as to objectively warrant further consideration.
[27] I earlier indicated that permission for representation was sought by the respondent parties under s.596 of the Act, which is relevantly in the following terms:
"S.596 Representation by lawyers and paid agents
(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.
(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
[28] The circumstances contemplated by s.596(3) and (4) of the Act (not reproduced above), do not apply here.
[29] The proper approach to the application of s.596 of the Act was discussed by the Federal Court (Flick J) in Warrell v Walton[9] and in various decisions of the Commission.[10] These confirm that a decision to grant or refuse permission for a party to be represented by "a lawyer" pursuant to s.596 cannot be properly characterised as a mere procedural decision. It is also apparent from the terms of s.596 that a party in a matter before the Commission must normally appear on their own behalf. That normal position may be departed from where an application for permission has been made and resolved in accordance with law; namely where one or other of the requirements imposed by s.596(2) have been taken into account and permission may be granted "only if" one or other of the requirements in s.596(2) is satisfied. Where one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s.596(2) of the Act. The party seeking that permission also bears the onus of persuading the Commission that the grounds exist and that the discretion should be exercised.
[30] The respondent parties contended, in effect, that permission should be given as legal representation would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. They further contended that it would be unfair for the named individuals not to be granted permission given the nature of the s.789FC application and the fact that they may be required to give evidence.
[31] D.K. strongly opposed the request for permission on a number of grounds including the contention that the matter was not complex and access to legal representation for the respondent parties would enable the continuing abuse of him as the applicant, who was unrepresented and unable to afford such assistance. D.K. also referred to what he saw as a considerable power imbalance and the unfairness that would come with representation given the policy of the Act.
[32] My reasons for adopting the view that permission should not be given in the particular circumstances of this case are set out below. Given the nature and circumstances of the present matter, those reasons do not include any findings about the substantive merit or otherwise of the s.789FC application.
[33] The complexity and associated efficiency that would often arise in dealing with an urgent interim order application of this nature were not present in this case.[11] The parties had provided written submissions, in the case of the respondent parties prepared by the external legal counsel, there was no indication that any party, including the applicant, intended to lead or challenge any evidence, there was no apparent dispute about the capacity for the Commission to consider the application or the considerations relevant to the matter, and the employer had proffered some undertakings that were capable of directly addressing the basis of the application.
[34] The employer participated in the hearing with internal legal counsel and was in a position to take advice, including legal advice, on the undertaking and other issues, in the absence of representation. Further, given the nature of the immediate issues and the foreshadowed undertakings, the individuals named were not necessarily the focus of the present proceedings and at least for immediate purposes did not have a different position to advance.
[35] On balance, I was not persuaded that permission should be granted. The absence of relevant complexity in the immediate matter and the circumstances of the parties weighed against a finding on the prerequisites of s.596(2) that might otherwise have been a basis for any discretion. However, noting that the request was dealt with at the outset of the hearing and as D.K. was not represented this could mean that the conduct of hearing might not be conventional, I did grant liberty for the external counsel to remain available and for the employer to renew the application for permission should relevant circumstances change. No subsequent request for permission was made.
[36] As would be clear from the above, the request for representation was dealt with only in the context of this particular interim order application. Some of the relevant considerations may apply differently in any hearing of the substantive application or any subsequent interim order application and this will be a matter for the Commission at that time. To that end, liberty was given for the respondent parties to renew the request at any relevant time.
[37] The s.789FC application will shortly be assigned to a locally based Member of the Commission to convene a conference and to deal with the matter as they see fit having considered the application and responses and heard more fully from the parties.
[1] There has been some delay in the normal case management process for reasons including the provision of an amended application, the need to obtain an alternative contact for service of the employer, the volume and nature of the application, and the focus upon the interim order application.
[2] See Mac v Bank of Queensland Limited [2015] FWC 774 at [5] to [10].
[3] Permission for the provision of written submissions by lawyers was not required given the operation of s.596 of the Act and the Fair Work Commission Rules 2013.
[4] Written application for interim orders.
[5] Re Bayly [2017] FWC 1886.
[6] See Re Subramanian [2017] FWC 3492.
[10] See also Fitzgerald v Woolworths Limited [2017] FWCFB 2797.
[11] See Singh v Metro Trains Melbourne [2015] FWCFB 3502, King v Patrick Projects Pty Ltd [2015] FWCFB 2697 and ASC Pty Ltd v The Australian Workers' Union and Ors [2014] FWC 544 for discussion of relevant complexity that might in other circumstances meet this prerequisite.
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