D.Q [2019] FWC 4530 (2 July 2019)

Fair Work Act 2009

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

Application for an FWC order to stop bullying - application to dismiss - s.789FC application to be held in abeyance pending determination of unfair dismissal remedy application.

[1] DQ was employed by the school as a Laboratory Technician. On 20 April 2019 DQ made an application to the Fair Work Commission (Commission) for orders to stop bullying that she said was being conducted by HV, her supervisor at the school. A first conciliation conference in relation to that application was heard by me on 16 May 2019. The day prior to the conciliation conference DQ attended the school for a meeting (being otherwise on leave) and was provided with the outcome of an internal investigation into the bullying complaint made to the school. The outcome of that investigation was that, whist one allegation of bullying was partially substantiated, the remainder of the claims were not substantiated.

[2] DQ complained at the first conciliation conference that the school investigation had been concluded without taking into account her evidence or that of her witness. DQ sought, at the conciliation, that I issue immediate interim orders to stop the claimed bullying by HV - the named person in this application. I declined to do so. I did set the matter down for a further conference to discuss programming the matter for hearing, having reached the view that it would not be possible to settle the matter in conciliation.

[3] On the day following the conciliation conference DQ was required to attend the school in relation to a misconduct matter. That misconduct related in part to DQ's interactions with HV's partner who had attended the school as a support person for HV and for DQ's breach of a confidentiality request. Following this meeting DQ was advised that her employment had been terminated.

[4] On 22 May 2019 the school made an application to the Commission pursuant to s.587 of the Fair Work Act 2009 (FW Act) that the application of DQ for orders to stop bullying be dismissed on the grounds that the application had no reasonable prospect of success as DQ no longer worked for the school and there was therefore no risk that bullying at work would continue (the s.587 application).

[5] On 28 May 2019 a second conciliation conference was held where the application of the school that DQ's application be dismissed was discussed. The school indicated that it intended to file written submissions. DQ indicated that she wished to be heard in relation to the application.

[6] The s.587 application was listed for hearing before me on 18 June 2019.

[7] On 7 June 2019 DQ made an application to the Commission for an unfair dismissal remedy.

[8] In written submissions filed on behalf of the school and HV, those parties sought permission to be represented at the hearing on 18 June 2019. I advised the parties that the question of permission would be determined at the commencement of proceedings.

[9] HV argued in the written submissions that it would be unfair not to allow representation as HV could not represent herself effectively. HV had no experience in matters before the Commission and certainly no experience in dealing with an application in relation to orders to stop bullying or an application to dismiss such an application.

[10] The school argued that this matter would be dealt with more efficiently if it was represented. It had been represented in the two conciliation conferences (with permission), the matter was a pure jurisdictional argument and it would be more efficient if HV and the school were represented by the one lawyer.

[11] DQ opposed permission being granted to the school as she was not represented and could not afford to be represented. DQ said it would not be fair if the school and HV were represented.

[12] HV was not present at the hearing due to other school business. I excused HV from attendance given the written submissions filed.

[13] I decided not to grant the school and HV permission to be represented given that DQ was not represented but also because the school and HV had filed brief but comprehensive written submissions. I did, however, advise that I might grant permission, depending on the submissions of DQ, if any complex matters arose during the hearing. As no matters of complexity arose the issue of permission did not need to be re-visited during the hearing.

[14] The school sought that the identity of it, the person said to have engaged in bullying conduct (named person) and the applicant be de-identified in any decision of the Commission. It submits that the Commission has the power to make such an order pursuant to s.593(3)(c) of the FW Act.

[15] The school submits that, whilst it recognises and is supportive of the principles of open justice, it would be unfair to both the school and the named person to have the allegations of bullying made by DQ in the public arena when HV has not had an opportunity to put a defence to the claims. Further, it says that naming the school risks reputational damage to it as a provider of educational services and could result in problematic conjecture within the school community.

[16] The school further says that, in circumstances where schools are taking a stand promoting an awareness of bullying within the student population, identification of the school and individuals involved would create concern with parents. This is particularly worrying in circumstances where the matters are no more than allegations but where no findings having been made.

[17] DQ opposes the application and says that the school and named person should be held to account for their actions.

[18] In the particular circumstances of this case I have decided to de-identify the parties to this matter.

[19] I have reached this conclusion because, firstly there is no denial of access to justice in circumstances where the application is, at the time of this decision, no more than a series of untested claims and second, the publication of the names of the parties may well do damage to their various reputations in circumstances where no findings have been made in relation to the claims.

[20] Whilst DQ says that the school and individual should be held to account this decision does not deal with the substance of that claim. This is a procedural decision only and is not determinative of any conduct of HV or the school. DQ's desire to hold the other parties to public account in circumstances where the substantive claim has not been tested supports the decision I have taken to de-identify the parties. Whilst I appreciate the passionate conviction of DQ that bullying at work occurred, that does not convince me that I should identify the parties at this point.

[21] This decision in relation to de-identification only relates to the s.587 application. If the school is not successful in its s.587 application and DQ is successful in her unfair dismissal and is reinstated the school will need to make a fresh application for de-identification should it wish to maintain the anonymity of the parties in any further proceedings.

Application to dismiss the application for orders to stop bullying

[22] The school (and HV) have made an application to dismiss the application of DQ for orders to stop bullying on the grounds that the application has no reasonable prospects of success.

[23] They do so on the grounds that, firstly, the Commission has no evidence on which to determine that DQ was bullied at work and, second, DQ has been dismissed from her employment with the school and there is, therefore, no longer any risk that she will continue to be bullied at work (assuming that she has been bullied) such that the jurisdiction of the Commission cannot be enlivened and the orders sought by DQ cannot be granted.

[24] The school submits that, even if DQ is successful in her application for relief from unfair dismissal, a return to work is not guaranteed. DQ may not pursue reinstatement or, if she does, it will be opposed by the school and may be found to be inappropriate by the Commission. It says therefore that the prospect of DQ continuing to be bullied at work is highly speculative.

[25] The school submits that there would be little utility in adjourning DQ's application for orders to stop bullying. The schools says that to allow the application to continue is not conducive to the efficient administration of justice in circumstances where, if DQ was reinstated at the school and believed she was bullied, there is no bar to the making of a fresh application.

[26] In these circumstances the school submits that DQ's application has no reasonable prospect of success and should be dismissed pursuant to s.587 of the FW Act.

[27] DQ submits that her application should not be dismissed as to do so would be tantamount to condoning the conduct of HV in bullying her and the conduct of the school in conducting a flawed investigation. Further, DQ says that the dismissal and the bullying are part of the same series of incidents.

[28] Further, DQ submits that if her application for orders to stop bullying is dismissed she will not have the mental strength to pursue her unfair dismissal and will no longer have any capacity for work. DQ says that her submissions are supported by her treating psychologist and general practitioner although there is no evidence produced by her to support this particular matter.

[29] DQ says that she has been subject to bullying at her last three employers and it is only in this case that she has felt she could pursue the matter with the Commission. She considers the opportunity to do so should not be denied to her.

[30] DQ submits that there is no harm in putting the application for orders to stop bullying in abeyance whilst the application for relief from unfair dismissal is dealt with. Once this is complete and DQ is reinstated (as DQ believes will happen) the application for orders to stop bullying can be activated without DQ having to make a further application. In this respect DQ does not ask that I further deal with the application at this point but rather keep the file open so that it may be dealt with should the unfair dismissal application succeed.

[31] DQ relies on the decision of Hampton C in Re P.K.[1] where the Commissioner observed:

[32] In that regard, I note that there is no suggestion that the dismissal of the applicant took place after the AB application and it was not therefore potentially influenced by the making of the application. In my view, this does bear upon the discretion to dismiss the application and in other circumstances it may be appropriate for the Commission to consider holding an AB application in abeyance where there is an apparently related dismissal that is being actively contested. This is ultimately a matter of judgement in the particular circumstances of each case.

[32] Section 789FF of the FW Act states as follows:

(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

(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:

[34] As is readily apparent there are two requirements that must be met before the Commission can consider issuing orders to stop bullying. The conditions are that:

2. There is a risk that the bullying will continue.

[35] In the application by DQ it has not been possible for the Commission to decide if bullying at work occurred as the application has been overtaken by the dismissal and subsequent unfair dismissal remedy application. That DQ has been dismissed means that, at the present time and until the determination of the unfair dismissal application, there is no risk that she will continue to be bullied (if she has, in fact been bullied) as she is no longer at work.

[36] On a very simple level this would suggest that the current application should be dismissed as it has no reasonable prospect of success.

[37] However, in this case the dismissal occurred after the application for orders to stop bullying was made and the matters do appear related in that DQ suggests both are part of a pattern of behaviour by the school.

[38] All indications from DQ are that the unfair dismissal application will be vigorously pursued and that reinstatement is the remedy sought. DQ believes that reasonable grounds exist to pursue the unfair dismissal application and reinstatement. DQ's optimism is based on previous experience in an unfair dismissal matter in relation to a previous employer. If the application was successful and reinstatement ordered DQ has made it clear she intends to pursue her application with respect to bullying.

[39] Much rests on DQ's application for an unfair dismissal remedy. In circumstances where, if reinstated, DQ may be able to demonstrate that there is a risk that bullying will continue there are no grounds to find that the application for orders to stop bullying has no reasonable prospects of success without making some evaluative judgement of the merits of her unfair dismissal application. There is not the information before the Commission that would allow this to occur. To dismiss DQ's application now will deny her the opportunity to pursue her existing application should she be successful in the unfair dismissal application.

[40] I have taken into account that DQ does not seek that I make findings or issue any orders in relation to her application at this point in time but rather that I keep the file open. In any event without cogent reasons I would decline to make any orders (interim or otherwise) in relation to the application as such orders would have no utility at this point in time.

[41] I have taken into account that to not dismiss the application leaves both the school and HV in a situation where they cannot close off this matter. However, dismissing the application does not mean the issue goes away. If DQ is successful in her unfair dismissal application and does gain reinstatement, given the specialised area within which the work she does is performed it is inevitably that the reinstatement will be to the same work area alongside the same people as before the application for orders to stop bullying was made. DQ could, if reinstated, make a fresh application for orders to stop bullying on the facts that existed at the time of the current application - the issue (putting aside the merits of the application) does not go away.

[42] In these circumstances I have decided that I should not dismiss DQ's application. The s.587 application was made by the school purely on the basis that DQ had been dismissed. There is a chance that decision may be found to have been unfair and that DQ may be reinstated (although I make no assessment of the chances of success of either) which will enliven the application for orders to stop bullying so that it may be dealt with on its merits.

[43] I would be clear that I have made my decision based on the particular circumstances of this case.

[44] If DQ is not successful in the unfair dismissal application in gaining reinstatement or the unfair dismissal application settles prior to hearing without a return to work a further application under s.587 of the FW Act to dismiss the application for orders to stop bullying can be made and will be considered.

[45] I should make clear so that there is no uncertainty to DQ, by this decision I have not made any finding of a preliminary or final nature as to whether bullying at work has occurred.

[46] The file in relation to the application by DQ for orders to stop bullying will be held pending the determination of the unfair dismissal remedy application. The parties are asked to inform me of the outcome of the unfair dismissal application when it is known.

[47] DQ is requested not to send any correspondence to my chambers in relation to the unfair dismissal application. Further she is requested not to send further correspondence to my chambers in relation to the application for orders to stop bullying. No further action will be taken on that file until the unfair dismissal matter is resolved.

[1] [2015] FWC 562.

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