Dr Say Teong Ng [2019] FWC 3055 (11 June 2019)

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

Application for an FWC order to stop bullying - applicant dismissed from employment - application by respondent employer for stop-bullying application to be dismissed under s.587(1)(c) of the FW Act - whether reasonable prospects of success given statutory requirements for an order to be made given the future risk import of s.789FF(1)(b) - factors for Commission to consider discussed - particular circumstances of this case assessed - not presently satisfied that no reasonable prospects of success demonstrated - matter of discretion does not arise - application adjourned with liberty to apply.

[1] On 5 March 2019, Dr Say Ng made an application for a stop-bullying order (the stop-bullying application) under s.789FC of the Fair Work Act 2009 (FW Act). The application contends that a number of individuals engaged by the Commonwealth Science Industrial and Research Organisation (CSIRO) have behaved unreasonably so as to constitute workplace bullying. Those allegations are disputed. The CSIRO and the individuals named in the application are collectively the respondent parties in the stop-bullying matter.

[2] As a result of the termination of Dr Ng's employment on 19 March 2019, CSIRO ultimately sought to have the stop-bullying application dismissed by the Commission under s.587(1) of the FW Act on the basis that the application had no reasonable prospects of success (the s.587 application). Put briefly, the s.587 application is founded on the contention that as Dr Ng has been dismissed and was no longer in the workplace, there was no basis to make an order because there was no foreseeable future risk of relevant workplace bullying.

[3] Dr Ng opposes the s.587 application and contends that the stop-bullying application should be held in abeyance pending the outcome of an application he has made under s.394 of the FW Act (the unfair dismissal application). The unfair dismissal application was scheduled for a conciliation conference to be conducted on behalf of the Commission on 17 May 2019.

[4] The parties have subsequently reported that the unfair dismissal application was not resolved at conciliation and that it will now be subject to hearing and determination by another arm of the Commission.

[5] This decision deals with the s.587 application.

[6] CSIRO contends[1] that the stop-bullying application should be dismissed, rather than held in abeyance, on the following grounds:

• The application has no prospects of success as without Dr Ng being a worker in the relevant workplace there is no basis upon which any remedy could be considered under s.789FF of the FW Act;

• Although Dr Ng has made an unfair dismissal application, that application is being strongly contested and any reinstatement arising from that application was speculative and hypothetical as found by the Commission in some other similar matters;

• There is no prejudice to Dr Ng as he would be entitled to lodge a fresh stop-bullying application and there would be no material additional delay associated with the listing of any substantive hearing from such an application;

• The application cites four individuals and holding an application of this nature in abeyance against them would be prejudicial to them; and

• The prejudice to the individuals named and the absence of prejudice to Dr Ng mean that the interests of justice should lead to the application being dismissed.

[7] CSIRO referred to a number of decisions of the Commission relying upon these considerations in what it described as being apropos of this matter. It also sought to make further submissions about its other contentions - that the allegations made by Dr Ng would not constitute bullying conduct for the purposes of s.789FD of the FW Act - in the event that the application was not dismissed at this point.

[8] In supplementary submissions, CSIRO contended that Dr Ng's submissions and other materials associated with the unfair dismissal application had been distributed and displayed in the applicant's former workplace. This, it stated, had a profound negative impact upon the named CSIRO officers and the CSIRO connected this to the judgement to be made by the Commission as to whether the stop-bullying application should be dismissed.[2]

[9] Dr Ng contends that his stop-bullying application should, as a compromise, be held in abeyance and not dismissed on the following basis:

• The "unfair dismissal" was the ultimate decision made by one of the individuals cited in the application and was their "apparently hidden aim in achieving and protecting various vested interests";

• The dismissal was unfair and harsh and the unfair dismissal application is now before the Commission awaiting adjudication; and

• Dr Ng was seeking reinstatement and was hopeful of returning to work at the CSIRO, and thereby returning as a worker.

[10] Dr Ng also made the following submissions potentially going to the Commission's discretion in this matter:

"Holding in abeyance is a compromise, given the ongoing psychological damages I am still suffering from and having to confront them by the days. I felt that I am constantly living in a state of being emotionally fearful of the bullies ganging up again, impacting my submitted unfair dismissal application. It has ruined my confidence in the sort of justice I used to believe.

I am worried that if your acknowledgement to hold this application in abeyance is dismissed, it will set a precedence to allow the bully the power to sack any employee first at their disposal (regardless of whether the dismissal is fair or not, once their vested interest was undermined). The applicant will be shaken, blocked, victimised and left with no voice to raise as a result of helplessness. The bullying case might as well be subsumed, given hurdle with hidden motive like this are hard to deal as a plain individual.

Holding my application in abeyance is not (seeking) a remedy, but an acknowledgement. It is potentially a preventative measure against tentative followed-on abuses. Bearing in mind that the matter is not yet at the state of asking for the commissioner's decision to stop the bullying.

There is a certainty that the waiting time will be short, given the effectiveness of Fair Work Commission. I certainly want to see that the unfair dismissal be sorted out sooner, so that everyone could move on.

I would like to submit that whether or not my unfair dismissal application is speculative, it should be the decision of Fair Work Commission - not the representative of the bullies. Without this (resolution), it defeats the purpose of having the Fair Work involvement."[3]

[11] In relation to the CSIRO's supplementary submissions, which contended that materials related to the applicant's unfair dismissal applicant had been displayed in the workplace, Dr Ng posited, in effect, that there were no confidentiality requirements made by the Commission, he had been assisted in preparing his unfair dismissal submissions by a "handful of scientists", and he had been barred from accessing the workplace since October 2018. Dr Ng also questioned the CSIRO's motives in raising the issue.

[12] Despite an opportunity to do so,[4] neither party sought to lead evidence or have a hearing conducted in relation to the immediate issue. As a result, I have determined the matter based upon the written submissions and the circumstances evident from the application and the response documents lodged in the stop-bullying matter, without making any findings about the substantive merit of the positions outlined in the application and response documents.

[13] I observe that for reasons outlined below, some of the propositions raised by the Dr Ng[5] about the implications of a decision to dismiss the stop-bullying application, and the message that might be sent to those allegedly involved in the workplace, are not matters that bear upon the determination of this present matter. The same applies to his characterisations of the alleged conduct and the parties involved and I have given them no weight in determining this present matter. However, other matters that he raises about the potential interaction with the unfair dismissal application and the broad propositions raised by the CSIRO to support its s.587 application are relevant to this matter for reasons also discussed below.

[14] The capacity for the Commission to dismiss an application on the basis that it has no reasonable prospects of success is provided by s.587(1)(c) of the FW Act in the following terms.

(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:

[15] The provision establishes a discretion to dismiss an application by virtue of the expression "may". Subject to the limitations in subsection (2), that discretion arises when the Commission is satisfied that one (or more) of conditions in subsection (1) have been met.

[16] In the context of a stop-bullying application, this may arise from the preconditions for the making of such an order set out in s.789FF(1) of the FW Act 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.

[17] In Obatoki,[6] the Full Bench was dealing with an appeal where the applicant worker was no longer in the relevant employment relationship and the anti-bullying application had been dismissed by the Commission. The Full Bench concluded as follows:

"[16] We consider that the Deputy President correctly held that there were no reasonable prospects that the application could succeed. The Commission could not be satisfied that the second of the two jurisdictional prerequisites of s.789FF(1) could be met. There was no evidence before the Commission indicating that there would be a risk that the Appellant would continue to be bullied at work once he ceased to be engaged by Mallee Track and ceased working at its premises or providing services for it. It necessarily follows that no order pursuant to s.789FF(1) could be made and the application had no reasonable prospects of success."

[18] I note that in Obatoki, there is no indication that the appellant (the applicant in the original matter) had made an unfair dismissal application or that this was considered.[7] In the earlier case of Shaw v ANZ,[8] cited by the Full Bench in Obatoki, the applicant had made such an application and this did not, in that case, impact on the assessment of the reasonable prospects of success.[9]

[19] The general approach adopted in Obatoki was endorsed by a subsequent Full Bench in Atkinson v Killarney Properties Pty Ltd[10] with what I consider to be an important caveat expressed in the following terms:

"[35] In this decision, we are not suggesting that it will always be appropriate for the FWC to dismiss a s.789FC application where an employee is dismissed from their employment. Depending on the circumstances in each case there may be a number of relevant considerations, including the prospect of reinstatement through other proceedings, which could warrant the FWC dealing with a s.789FC application notwithstanding the dismissal of the employee."

[20] When considered in context, this caveat must potentially inform both the finding that there is no reasonable prospect of success and the exercise of any discretion that arises. Further, it emphasises that the dismissal of a stop-bullying application does not automatically follow the dismissal of an applicant worker from their employment and that the particular circumstances of each case must be considered in that regard.

[21] The import of the phrase "no reasonable prospects of success" has also been considered in a variety of contexts. When used in the application of the costs provisions in s.611(2)(b) of the FW Act, the Commission has adopted the approach that "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."[11]

[22] Although adopted in the context of the costs provision, which is relevant factor, it is a principle of statutory construction that where a phrase or expression is used in different sections of the same Act, it will generally have the same meaning, subject to any express exception to the contrary.

[23] In Wright v Australian Customs Service[12] the AIRC, under predecessor legislation[13] discussed the approach of the Commission to the assessment that 'no reasonable prospects of success' exist, and said:

"[23] In our view, the act of issuing of a certificate under s.170CF(4) should be considered in its proper context. That context is an application by an employee under s.170CE of the WR Act. Section 170CE(1) entitles an employee to seek relief in respect of the termination of that employee's employment. Subject to the existence of the requisite jurisdiction and merit, that relief may be obtained, depending upon the ground upon which the claim is based, from either the Commission or a court of competent jurisdiction. The exercise of the power conferred by s.170CF(4) is one that brings proceedings in the Commission to an end in a summary way. The legislative intention, in our view, is to provide the Commission with a means of terminating at an early stage applications which, in so far as they relate to the ground specified in s.170CE(1)(a), are manifestly untenable or groundless. It is important to note that the issue before the Commission in such circumstances is not whether the applicant would probably succeed in the substantive application against the employer. It is whether the material before the Commission demonstrates that the substantive application should not be permitted to go to a hearing in the ordinary way because it is apparent that it must fail.

[24] In this respect, the exercise of the power may be seen to be similar, if not equivalent, to the exercise of the power of a court to terminate an action summarily for want of a cause of action. The power of a court to do so may arise from an inherent jurisdiction or from statute or the court's own rules. In the case of the Commission, the power to issue a certificate and thus bring an end to the application, at least in relation to the ground that the termination was harsh, unjust or unreasonable, arises from the WR Act. The effect of the exercise of the power by the Commission is the same as the effect of the exercise of a court's power to summarily dismiss an application.

[25] In General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others (General Steel), Barwick CJ accepted that "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". His Honour went on to state -

"It is sufficient for me to say that these cases uniformly adhere to the view that 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 - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".

At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance".

As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same. Dixon J. (as he then was) sums up a number of authorities in Dey v. Victorian Railways Commissioners (1949) 78 CLR 62 where he says (at p.91): "A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process." Although I can agree with Latham C.J. in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings (at p 84), in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed."

[26] In Fancourt and Another v Mercantile Credits Limited, the High Court observed that the "power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried". Further, in Webster and Another v Lampard, the High Court said that "[n]owhere is that need for exceptional caution more important than in a case where the ultimate outcome turns upon the resolution of some disputed issue or issues of fact".

[27] That a similarly strict test should be adopted by this Commission in the exercise of its powers under s.170CF(4) gains support from the decision of the Full Court of the Federal Court in Paul Barbaro v Human Rights & Equal Opportunity Commission and Another. The Court was there concerned with an appeal from an order summarily dismissing an application for judicial review. The primary judge had dismissed the application for judicial review on the basis that "there was no reasonable prospect of the substantive application succeeding". Referring to the decision in General Steel, the Full Court stated that the test to be applied in such cases "is a strict one designed to ensure that claims that may possibly have merit are not summarily dismissed". The Court went on to find that "the primary Judge had the appropriate strict test in mind when he found that the application for judicial review had `no reasonable prospect of success'". It would, therefore, appear that the strict test for determining whether or not an application for judicial review should be summarily dismissed is, as is the case for the issue of a s.170CF(4) certificate, whether the substantive application has no reasonable prospect of success. This is the term that is used in s.170CF(4) to describe the conclusion that the Commission must reach before an obligation arises to issue the requisite certificate." (references and footnotes omitted)

[24] What all of this means is that the cessation of the employment or contractual relationship may provide a context in which the stop-bullying application has no reasonable prospects of success by virtue of the import of s.789FF(1)(b) of the FW Act. This is not a reflection upon the substantive merit (or otherwise) of that application (s.789FF(1)(b)(i)), but rather, consideration only of whether there is the absence of one of the (other) prerequisites for the making of any orders from such an application due to the fact that the applicant is no longer a worker at potential risk in the relevant workplace (s.789FF(1)(b)(ii)). However, in making that assessment the Commission must consider whether there is any other context in which the applicant might, as a worker, be subject to the risk of future workplace bullying conduct in the relevant workplace.

[25] Such a context could include where the applicant already has other work where they are likely to be involved in the relevant workplace in that capacity, or in my view, where there is some identifiable prospect that the applicant will return to the workplace as a worker as a result of some other intervention, such as a reinstatement order made by the Commission[14] or by the Court.[15] In that regard, this could well arise when an applicant had actually made a timely relevant application and was genuinely seeking that particular form of remedy. The prospect of these events occurring must certainly be something more than mere speculation; however, for reasons outlined above, the findings that there are no reasonable prospects of success is not a finding to be made lightly.

[26] Further, if there is a finding of no reasonable prospects, the dismissal of an application under s.587 of the FW Act remains a matter of discretion and each case must be considered on its merits.

[27] Accordingly, any attempts by an applicant worker to contest a dismissal or the cessation of the relationship are relevant; however in order to be more than speculation, the applicant would need to be genuinely and actively pursuing reinstatement as the remedy through some relevant application that had been made. This is relevant to the finding as to whether, or not, there are no reasonable prospects of success. Further, the impact upon other parties, including the individuals named in the application and the employer/principal are also relevant considerations in the case management of a stop-bullying matter including any decision to dismiss it on the grounds raised here.[16] These latter considerations, and the fact that an applicant can make a fresh stop-bullying application should circumstances change, are relevant to the discretion, but not to the assessment of whether there are no reasonable prospects of success present in the extant application.

[28] In this case, Dr Ng was dismissed by CSIRO after the stop-bullying application had been filed and the Commission had commenced to deal with the application, but before any determinative proceedings had been conducted. I draw no inference from the sequence of events here, other than that the Commission has not formed any view about the objective merit of that application or the response provided by the respondent parties. Further, in the circumstances, with one potential exception, there is also no probable basis upon which Dr Ng will return to the workplace in any capacity as a worker. Dr Ng's unfair dismissal application is however an important consideration bearing upon that prospect and this is directly relied upon by him to suggest that his stop-bullying application not be dismissed at this point. CSIRO contend that the potential outcomes of the unfair dismissal application are speculative and uncertain and should not be considered in the present context.

[29] As expressly confirmed during proceedings in this matter, Dr Ng is actively seeking reinstatement to his former position at the CSIRO. Further, I have also been advised that his unfair dismissal application is now due to be heard and determined by the Commission. Although the proportion of reinstatements in the Commission's unfair dismissal jurisdiction is relatively low and the CSIRO is strongly opposing that outcome in Dr Ng's case, I am not satisfied to the required degree that in the context of this matter he has no reasonable prospects of success in the stop-bullying application by virtue of his dismissal. Whether he is ultimately successful in the unfair dismissal application and is reinstated is a matter for that arm of the Commission to determine. Further, a finding that he will not be reinstated, or rather there is no reasonable prospect of this occurring, is not a finding that can appropriately be made by this arm of the Commission at this juncture.

[30] Given these findings I am not satisfied at this point that there is no reasonable prospect that a basis to satisfy the second limb of s.789FF of the FW Act can be established. This in turn impacts upon the assessment of whether there is no reasonable prospect that the stop-bullying application can succeed.

[31] It is important to emphasise that this decision is not a reflection upon the substantive merit of the stop-bullying application and this has not yet been heard. This also does not reflect a lack of appreciation for the consequences for the respondent parties and for reasons outlined earlier, should I have found that there was no reasonable prospects of success, considerations of that type would have been influential in any discretion to be exercised.[17] In that regard, I observe that the recent CSIRO allegations about certain materials being apparently distributed in the applicant's workplace involved the unfair dismissal application. I do not underestimate the potential impact of any such material upon the individuals involved and to the extent that there is any suggestion that the continuation of the stop-bullying matter is relevant to whatever occurred, the Commission might be approached to make direct orders about how any materials relevant to that application are to be treated pending any potential hearing.

[32] I am also alert to the fact that circumstance's surrounding the unfair dismissal matter may change at any point up to and including a decision being made by the Commission. This could provide a basis to revisit this application. Further, although my initial view is not to make arrangements to hear the stop-bulling application at this point, I also consider that the respondent parties should be at liberty to more fully advance their proposition that this should occur given my conclusions.

[33] As a result, this application is to be held in abeyance, with general liberty given to the parties to apply as foreshadowed above.

B Maloney with K Ritchie, on behalf of Commonwealth Science Industrial and Research Organisation.

[1] CSIRO written submissions, 19 April 2019.

[2] CSIRO supplementary submissions, 31 May 2019.

[3] Dr Ng's written submissions 2 May 2019 at 24 to 26.

[4] This was expressly canvassed at the preliminary conference and general liberty to apply, including to seek a hearing in relation to the s.587 application, was granted by the Commission.

[5] Including some not expressly set out in this Decision.

[6] Olusegun Victor Obatoki [2014] FWC 8828.

[7] See also Olusegun Victor Obatoki [2014] FWC 8828.

[8] [2014] FWC 3408.

[10] [2015] FWCFB 6503.

[11] Brian Clothier v Ngaanyatjarra Media [2012] FWAFB 6323 at [15].

[12] (2002) AIRC PR926115, cited with approval by the Full Bench in Keep v Performance Automobiles Pty Ltd [2015] FWCFB 1956 at [19].

[13] Workplace Relations Act 1996 - dealing with its then unfair dismissal jurisdiction under s.170CE.

[15] Section 545(2)(c) of the FW Act, as an example.

[16] See also Simon Ketenci v Commissioner for Public Employment and Others [2018] FWC 2299 and Joseph Salama v Sydeny Trains and others [2018] FWC 1845 in this regard.

[17] See Mekuria v MECCA Brands Pty Ltd t/a Mecca Cosmetics and others [2019] FWCFB 1093 at [19](3).

Printed by authority of the Commonwealth Government Printer