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[2018] FWC 2433
Fair Work Commission
2018-05-09
Original judgment source is linked above.
s.789FC - Application for an order to stop bullying
Application for an FWC order to stop bullying - application for costs - costs not ordered.
[1] This is an application by Ms Gaynor King (the costs applicant) for an order for costs against Mr Paul Dixon, Mr Andrew Jewell and Ms Wendy Sherlock (the costs respondents) in relation to applications made by the costs respondents for orders to stop bullying in which Ms King was named as the person who had engaged in the alleged bullying conduct.
[2] On 27 June 2017 Mr Dixon made an application to the Fair Work Commission (Commission) for orders to stop bullying pursuant to s.789FC of the Fair Work Act 2009 (FW Act). Mr Dixon was, at the time of the application, employed by the City of Darwin. He named Ms King as the person he alleged had engaged in bullying conduct.
[3] On 2 July 2017 Mr Jewell and Ms Sherlock each made an application to the Commission for orders to stop bullying pursuant to s.789FC of the FW Act. Each is employed by the City of Darwin and each named Ms King as the person they alleged had engaged in bullying conduct.
[4] The applications for orders to stop bullying (the stop bullying applications) were all filed for the costs respondents by United Voice and United Voice has represented the costs respondents at all times.
[5] Each of the stop bullying applications contains the same narrative. This is that "alleged bullying complaints" had been made about the costs respondents. They were each advised of the outcome of an investigation into the complaints but were not given a copy of the investigative report. The costs respondents were only provided with "very undetailed correspondence addressed to the CEO which identified the allegations made against them were unsubstantiated".[1] Each was counselled but denied procedural fairness in that they were not offered the opportunity to respond to the findings of the investigation. The costs respondents say that they should have been provided with the full report; they should have been given the opportunity to respond; and once they had responded the City of Darwin could then make a decision based on all the facts.
[6] The costs respondents expressed concern that they were at "potential risk of being victimised within the workplace due to the seriousness of the formal counselling documentation which identifies summary dismissal if they offend, intimidate or insult another employee." Further they said that the City of Darwin was "aware that Ms Gaynor King and her 'inner circle' are perceived as bullies within the workplace" and that they were concerned that Ms King and her "inner circle" would continue to make unsubstantiated claims about their behaviour which may have adverse implications for their future employment.[2]
[7] Each of the costs respondents sought orders in the stop bullying applications that included assurances that protect them and that the "formal counselling" documents given to each of them arising from the investigation into Ms King's complaint be withdrawn until each was given an opportunity to respond to the investigative report and the materials relied on by the City of Darwin.
[8] The stop bullying applications were subject to conciliation conducted by me on 2 August 2017. During the conciliation it became apparent that the substantive issue of each of the costs respondents, as was evident in the stop bullying applications, was the process by which the City of Darwin had undertaken the investigation into the complaint of Ms King, the failure to provide the totality of the investigative report to each of them, the extent to which the material provided by them was considered in the investigation and whether the effect of the counselling was that each had been issued with a first and final warning by the City of Darwin.
[9] Some issues were also raised by Ms Sherlock as to Ms King's conduct in staring inappropriately or for prolonged periods at her in staff meetings. Ms Sherlock said this made her feel uncomfortable and that she felt she was being singled out.
[10] A discussion was had with the costs respondents in private conference as to whether they had made the best application given that the outcomes they sought were directed at the City of Darwin and not at Ms King who was named as the alleged bully. This was relayed to Ms King.
[11] The costs respondents were asked to consider all of the matters discussed at the conference and advise the Commission of what they wished to do next. Pending such advice the matter was re-listed for further conciliation on 21 September 2017 although there was nothing to stop the costs respondents deciding, and providing advice to the Commission, prior to that date. At the conference on 21 September 2017 the costs respondents decided to discontinue their applications "to pursue an alternate application."
[12] At both of the conferences Ms King was not in the same room as the costs respondents. At the second conference Ms King was accompanied by her lawyer. As the conference did not proceed beyond the costs respondents discounting their applications the question of permission of Ms King to be represented pursuant to s.596(2) of the FW Act was not considered.
[13] On 14 February 2018 Ms King made an application for costs against each of the costs respondents pursuant to s.611 of the FW Act.
[14] In her application for costs Ms King said that the stop bullying applications were vexatious, were made without reasonable cause and each of the costs respondents should have been aware that their application had no reasonable prospect of success.
[15] Ms King's costs relate to legal advice she received following the first conference of the Commission. She sought a payment of one-third of the costs incurred by her from each of the costs respondents.
[16] Following receipt of the application for costs, directions were issued to the parties for the filing of submissions. The application for costs was heard on 19 April 2018.
[17] Ms King submits that the purpose of the applications was to harass and intimidate her. She submits that the applications were for no purpose but to retaliate against her because she made a formal complaint to the City of Darwin about the costs respondents.
[18] Further, Ms King submits that in the 19 years she has been employed with the City of Darwin no complaints of bullying behaviour had been made of her. Ms King also says that in making the stop bullying applications the costs respondents failed to provide any evidence of repeated and unreasonable behaviour by her directed towards them.
The applications were made without reasonable cause
[19] Ms King submits that the applications were made without any supporting documentation, evidence or witnesses to attest to the claims of the costs respondents.
[20] Further, she submits that she has not had any interactions with Mr Dixon for several years or with Ms Sherlock or Mr Jewell since 2016.
The applications had no reasonable prospect of success
[21] In addition to the submissions above Ms King submits that the City of Darwin Code of Conduct had not been followed by the costs respondents for dealing with complaints or grievances.
[22] Further, Ms King submits that the stop bullying applications were addressed to complaints the costs respondents had of the City of Darwin in not providing them with procedural fairness (with respect to the investigation into Ms King's complaint).
[23] Ms King says that the stop bullying applications did not meet the requirements of the FW Act but, when given an opportunity to amend their applications, the costs respondents did not do so prior to the second conference of the Commission on 21 September 2017. In this regard, they also caused additional costs to be incurred by her.
[24] In reply to the submissions of the costs respondents, Ms King says:
She has had no contact with Ms Sherlock since March 2016, Mr Dixon since March 2015 and Mr Jewell since mid-2016. For this reason alone she submits that there is no evidence of contact between her and the costs respondents such that it could reasonably be put that any bullying had occurred. Further, she submits that no complaints were made internally of her conduct by the costs respondents.
At the first conference she was in a separate room due to anxiety and intimidation she felt (from the costs respondents) and that no examples of bullying were relayed to her.
The costs respondents did not amend or withdraw their applications prior to the second conference despite claiming they were happy to do so.
The reason for continuing with the first conference was matters associated with the City of Darwin and not Ms King. The second conference went ahead even though the matters in dispute did not involve her and the reason for discontinuing the applications related to the stance of the City of Darwin and not Ms King.
She makes no assumption that costs will be ordered but is entitled to make her application and have it properly dealt with.
• There is no evidence that the City of Darwin has retracted anything. The attachment to the submissions of the costs respondents[3] does no more than confirm that a letter sent to each of them detailing the outcome of the counselling was not a first and final warning. It is not, she says, a retraction of anything.
[25] The following submissions were made on behalf of the costs respondents by United Voice.
[26] United Voice states that, at the first conference it was identified that the costs respondents had not outlined the bullying conduct each said had occurred. It submits that it was put that, while they could have withdrawn the applications and made fresh applications for the Commission to deal with a dispute the same parties would be involved, including the City of Darwin and Ms King. United Voice submits that it was therefore proposed that the conference be used to try and progress the matter.
[27] Following the first conference United Voice received a letter[4] from the City of Darwin in which it confirmed that the formal counselling and letters received by each of the costs respondents was not a first and final warning. The letter also clarified the circumstances of Mr Dixon not being included on a leadership training program. United Voice submits that the undertakings included in this letter from the City of Darwin only covered some of the agreed outcomes of the first conciliation conference.
[28] United Voice submits that at the second conference, as in the first conference, no sworn evidence was given. It became clear that the City of Darwin was not interested in resolving outstanding matters in the stop bullying applications and the costs respondents therefore decided to discontinue their application "to pursue an alternate application."
[29] The costs respondents submit that their workplace has been safe and harmonious as Ms King has not been in the workplace since July 2017.
[30] United Voice submits that s.611 of the FW Act makes it clear that the general presumption is "heavily weighed" to a party to a matter before the Commission bearing its own costs.
[31] United Voice submits that the "predominant purpose" of the applications made by the costs respondents was not to harass or intimidate Ms King. Rather, it says that the costs respondents just wanted to feel safe at work, free from what they saw as Ms King's bullying behaviour.
[32] United Voice submits that the costs respondents made their stop bullying applications as they wanted the "ongoing bullying to stop and that led the Employer threatening them with their jobs (which was later retracted following the First Conference)".
[33] United Voice submits that Ms Sherlock had raised concerns she had with Ms King in 2016. United Voice submits that Ms Sherlock alleged that Ms King had micromanaged her, reported her for frivolous matters, ostracised her at toolbox meetings and used the performance development program in a punitive manner.
[34] United Voice submits that Ms King would have understood the instances of the bullying conduct relied on by the costs respondents if she had been present in the same room as the costs respondents at the first conference.
The applications were made without reasonable cause
[35] United Voice submits that, at the time they made their stop bullying applications, the costs respondents believed that they had a reasonable prospect of success.
[36] United Voice submits that the first and second conference outcomes gave the costs respondents enough solace such that they were prepared to wait and see if Ms King's behaviour towards them continued before deciding if they would go "to the next step."
[37] United Voice submits that there is no merit to the submissions of Ms King.
The applications had no reasonable prospect of success
[38] United Voice submits that the test of whether it should have been apparent to the costs respondents that the applications had no reasonable prospect of success is an objective test and not one based on the subjective beliefs of the costs respondents. Again, United Voice submits that the costs respondents believed, at the time of making their stop bullying applications, that they had a reasonable prospect of success. United Voice submits that Ms King has not made out these grounds.
[39] United Voice submits that, if the Commission does find that the requirements of s.611 of the FW Act are met, I should take into account the following:
When Ms King responded to the stop bullying applications she indicated that she did not have a representative. United Voice has not been advised through the provision of a Form F53 or by application to the Commission for permission to be represented that Ms King had engaged legal representation;
The schedule of costs attached to the application for costs by Ms King indicates that Ms King is seeking to recover costs of communication that her legal representative had with the Commission of which the costs respondents were not aware;
The schedule of costs suggests that Ms King is attempting to seek to recover costs from the costs respondents in relation to matters not associated with the costs respondents stop bullying applications;
Ms King has produced an email to her from Ms Amber Garden, Senior Advisor - People, Culture & Capability, of the City of Darwin which indicated that the Chief Executive Officer of the City of Darwin wanted to contribute $5,000 towards Ms King's legal costs if she decides to "put in a vexatious claim via the Form 1". This suggests Ms King is seeking to recover costs that have already been covered by the City of Darwin.
(1) A person must bear the person's own costs in relation to a matter before the FWC.
(2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if:
(a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or
(b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person's application, or the first person's response to the application, had no reasonable prospect of success.
Note: The FWC can also order costs under sections 376, 400A, 401 and 780.
(3) A person to whom an order for costs applies must not contravene a term of the order.
Note: This subsection is a civil remedy provision (see Part 4-1).
[41] The reference to s.400A in the first note in s.611 is not relevant to this decision.
[42] In Church v Eastern Health t/as Easter Health Great Health and Wellbeing[5] (Eastern Health) the Full Bench of the Commission stated:
[27] ...courts have observed that an applicant who has the benefit of the protection of a provision such as s.570(1), (ie the general rule that parties bear their own costs), will only rarely be ordered to pay costs and that the power should be exercised with caution and only in a clear case. In our view a similarly cautious approach is to be taken to the exercise of the Commissions powers in s.611 of the FW Act.
[43] In Qantas Airways Limited v Carter[6] (Carter) the Full Bench of the Commission, in considering the provisions of s.611(2)(a) said:
[17] ...The approach generally taken by members of the Commission as to the meaning to be ascribed to the word "vexatiously" in s.611(2)(a) is to adopt the comments of Justice North in Nilsen v Loyal Orange Trust (Nilsen). Nilsen was decided in 1997 when the then Workplace Relations Act 1996 applied however the relevant provision considered by his Honour was in terms similar to s.611(2)(a) being whether an applicant "instituted the proceeding vexatiously or without reasonable cause". About this provision his Honour said:
"The next question is whether the proceeding was instituted vexatiously. This looks to the motive of the applicant in instituting the proceeding. It is an alternative ground to the ground based on a lack of reasonable cause. It therefore may apply where there is a reasonable basis for instituting the proceeding. This context requires the concept to be narrowly construed. A proceeding will be instituted vexatiously where the predominant purpose in instituting the proceeding is to harass or embarrass the other party, or to gain a collateral advantage."
[44] In Eastern Health the Full Bench, after considering the views expressed in Nilsen, stated:
[29] ...Deane and Gaudron JJ made a similar observation in Hamilton v Oades in which they said:
"The terms 'oppressive' and 'vexatious' are often used to signify those considerations which justify the exercise of the power to control proceedings to prevent injustice, those terms respectively conveying, in appropriate context, the meaning that the proceedings are 'seriously or unfairly burdensome, prejudicial or damaging' and 'productive of serious and unjustified trouble and harassment'."[7]
[45] In Keep v Performance Automobiles Pty Ltd[8](Keep), the Full Bench of the Commission cited the decision of the Full Bench in Eastern Health as authority in relation to whether a party had made an application without reasonable cause (s.611(2)(a)) as follows:
(i) The power to order costs pursuant to s.611(2) should be exercised with caution and only in a clear case.
(ii) A party cannot be said to have made an application 'without reasonable cause' within the meaning of s.611(2)(a), simply because his or her argument proves unsuccessful.
(iii) One way of testing whether a proceeding is instituted 'without reasonable cause' is to ask whether upon the facts known to the applicant at the time of instituting the proceeding, there was no substantial prospect of success.
(iv) The test imposed by the expression 'without reasonable cause' is similar to that adopted for summary judgment, that is, 'so obviously untenable that it cannot possibly succeed', 'manifestly groundless' or 'discloses a case which the Court is satisfied cannot succeed'[9]
[46] As to whether it should have been reasonably apparent to a party that its application, or response to an application, had no reasonable prospect of success (s.611(2)(b)) the Full Bench in Keep summarised the relevant principles as follows:
[18] As to s.611(2)(b), the FWC may make a costs order against a person if satisfied that 'it should have been reasonably apparent' to that person that their application had 'no reasonable prospect of success'. The expression 'should have been reasonably apparent' in s.611(2)(b) imports an objective test, directed to a belief formed on an objective basis as opposed to the applicant's subjective belief.
[19] There is Full Bench authority for the proposition that the Commission should exercise caution before arriving at the conclusion that an application had 'no reasonable prospects of success'. In Deane v Paper Australia Pty Ltd a Full Bench made the following observation about this expression in the context of enlivening a power to award costs under s.170CJ(1) of the Workplace Relations Act 1996;
"unless upon the facts apparent to the applicant at the time of instituting the [application], the proceeding in question was manifestly untenable or groundless, the relevant requirement in s.170CJ(1) is not fulfilled and the discretion to make an order for costs is not available".
[47] In Baker v Salva Resources Pty Ltd[10] (Baker) the Full Bench of the Commission said of the application of s.611(2)(b) of the FW Act:
[10] The concepts within s.611(2)(b) "should have been reasonably apparent" and "had no reasonable prospect of success" have been well traversed:
[48] I have applied these principles in the determination of the application before me.
Were the stop bullying applications made vexatiously?
[49] In the stop bullying applications each of the costs respondents said that they should have been provided with a copy of the investigative report that arose from the complaint Ms King made of them, they should have been given an opportunity to respond (presumably to that report) and only then should the City of Darwin have made a decision as to what action to take. In this respect, each said they were denied procedural fairness. As to remedy they sought that the "formal counselling" document given to them be withdrawn.
[50] In its response to the application for costs, United Voice confirmed that each of the costs respondents had received a letter from the City of Darwin confirming that the counselling letter was not a first and final warning. Given however that the City of Darwin was not interested in resolving outstanding matters, the costs respondents decided to discontinue the stop bullying applications in order to pursue an alternate application (which they have not, as yet, done).
[51] In oral submissions on the application for costs, United Voice said that at the second conference "having received written confirmation as was mostly sought...from the City of Darwin ... they were of the view that they'd exhausted the conference process"[11] and so filed the notices of discontinuance.
[52] In their stop bullying applications and the written and oral submissions made in response to the application for costs, it appears that what the costs respondents sought was some specific action from the City of Darwin in relation to the investigation undertaken by the City of Darwin and the counselling of each of costs respondents that arose from the investigation and some non-specific "assurances" in relation to Ms King "and associated persons".
[53] The behaviour which each of the costs respondents said constituted bullying was:
the alleged bullying complaints made of them (by Ms King);
the instruction to attend a meeting at which the outcomes of the investigation were advised to them;
that they were only given a summary by the investigator but not the full investigative report;
that they were each counselled and given a document confirming this;
that they were not given an opportunity to respond to the findings of the investigator;
the failure to provide them with a copy of the full investigative report;
the making of a decision by the City of Darwin before they responded to the investigative report;
a risk they would be victimised due to the seriousness of the counselling documentation;
the City of Darwin was aware Ms King and her "inner circle" are "perceived as bullies" and Ms King and her "inner circle" will continue to fabricate complaints of their behaviour that will have an adverse effect on them;
• the failure to afford them procedural fairness.[12]
[54] The conduct in relation to Ms King that the costs respondents rely on in their stop bullying applications is that she made a "bullying complaint" about each of them. There was otherwise no other conduct or repeated behaviour of Ms King identified that the costs respondents claimed constituted bullying. The remainder of the alleged incidents of bullying relate to actions of the City of Darwin.
[55] From Ms King's perspective it appears there was nothing she could have done to not have engaged in the "bullying conduct" except not make a complaint to the City of Darwin about some conduct in the workplace. Ms King had no control over the provisions of the investigative report, the counselling or anything that followed to allow the costs respondents to feel that they had been afforded procedural fairness.
[56] The outcomes sought by the costs respondents were all within the control of the City of Darwin. There were, again, a number of ways the costs respondents could have dealt with the grievance each of them had including notifying a dispute pursuant to the dispute settlement procedure of the relevant enterprise agreement. They took none of these steps but rather chose to make a stop bullying application in which they named Ms King as the employee who had bullied them. None of the costs respondents named any person involved in the investigation or the issuing of the counselling reports.
[57] The costs respondents said that they achieved what they "mostly sought"[13] from the City of Darwin arising from the first conference in relation to the stop bullying applications held on 2 August 2017. Having achieved this, they discontinued their applications. This overwhelmingly suggests that the grievance each had was with the City of Darwin associated with the conduct of the investigation and issue of counselling reports. I make no comment as to the reasonableness or otherwise of the actions of the City of Darwin or the legitimacy of the complaints the costs respondents had of the process and the outcomes. But none of this is bullying caused by a pattern of behaviour or repeated behaviour of Ms King and none of this addresses any "bullying" conduct of Ms King. That the costs respondents discontinued upon receipt of what they "mostly sought" from the City of Darwin reinforces the conclusion that their issues were with the City of Darwin and not Ms King.
[58] My conclusion above strongly suggests that the motivation of the costs respondents in making their stop bullying applications was to achieve some outcome from the City of Darwin. Ms King, it appears, was the vehicle they chose to get their issues before the Commission. In this respect, it is not clear that their motivations (which suggests intent) in naming Ms King was to "harass or embarrass" her but this is what they did do in naming her as the person they say bullied them. However, I am satisfied that each of the costs respondents sought to gain some collateral advantage over Ms King (and others) in making the application. As they said in their stop bullying applications, their concern was that the counselling letters may have been a first and final warning such that another adverse finding could lead to dismissal. They wanted to ensure that Ms King could not fabricate complaints in the future that might lead to such an outcome. In this respect, I am satisfied that in making the applications, the costs respondents sought to intimidate Ms King (and others who might make a complaint against any of them) into not making any complaint of them in the future for fear that further applications for orders to stop bullying might be made. In this respect, I am satisfied that the costs respondents did seek a "collateral advantage" in making the application of the type referred to in Carter.
[59] It can be a fine line between actual intent and unintended consequences. In this case, I have decided that the embarrassment and harassment felt by Ms King (which has led to her being absent from work for an extended period of time) has been an unintended consequence as opposed to the actual motivation of the costs respondents.
[60] In Holland v Nude Pty Ltd t/as Nude Café[14] (Holland) the Full Bench found that the "desire to obtain a finding that [the appellants] had been unfairly dismissed in itself may be adequate to avoid a finding that the s 394 applications were made vexatiously"[15] in circumstances where the applicants in that matter sought payment of wages from their employer where they had not intended to pursue the unfair dismissal applications.
[61] In this case, I am satisfied that one of the motivations in making the stop bullying applications by the costs respondents was to resolve outstanding matters in relation to the investigation report (to gain access to it, to be able to respond and then have any penalty considered) and the counselling reports issued to them (to confirm the counselling report did not constitute a first and final warning). This is not an improper purpose in the sense explained in Holland, although it is clumsy.
[62] However, I am satisfied that the other purpose was to discourage Ms King from making any complaint in the future against any of the costs respondents. This is an improper purpose. To attempt to discourage an employee into not exercising his or her rights to lodge a complaint when that employee may have proper grounds to do so is egregious behaviour and should not go unchallenged. Any employee of the City of Darwin should feel safe in making a legitimate complaint, confident it will be dealt with appropriately and not fear retribution for doing so.
[63] I am therefore satisfied that the applications were made vexatiously.
Were the stop bullying applications made without reasonable cause?
[64] The relevant consideration with respect to this limb of s.611(2)(a) is the facts known to the costs respondents at the time each made their stop bullying application and whether, on the basis of these facts, there was no substantial prospect of success.
[65] Before going to a consideration of that matter, I would first observe that the costs respondents have, at all times, been represented by United Voice. The initial applications to the Commission were signed by the United Voice Branch Secretary. United Voice is a registered organisation with a long history of professional engagement with the Commission and its forerunners. It is reasonable to assume therefore that the costs respondents had the benefit of industrial expertise, beyond their own knowledge, in making the stop bullying applications.
[66] This expertise within United Voice can be reasonably assumed to run to a good working knowledge of the FW Act, an ability to search the Commission website and an ability to read and understand decisions of the Commission and associated commentary available through the "Anti-bullying" Benchbook.
[67] That United Voice possesses such skills at least in relation to reading and understanding the meaning of Commission decisions was demonstrated by the submissions made by it on behalf of the costs respondents in the application for costs.
[68] This being the case, it is also reasonable to assume that United Voice, in assisting its members in making their stop bullying applications, was aware of the definition of bullying.
[69] "Bullying" is defined for the purposes of the FW Act in s.789FD. It relevantly states:
(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...
[70] That is, to enliven the jurisdiction of the Commission it is necessary to show firstly that an individual (or group of individuals) repeatedly behaved unreasonably towards the worker.
[71] In their stop bullying applications the costs respondents, by virtue of their applications, named Ms King as the alleged bully and hence implied that Ms King had repeatedly behaved unreasonably towards each of them individually.
[72] The only instance of bullying conduct the costs respondents laid at the feet of Ms King was that she had made an "alleged bullying complaint" against them. The remainder of the complaint was about how the City of Darwin had dealt with the complaint of Ms King. The only further mention of the conduct of Ms King was that she had a "management style which creates a toxic workplace" which she "hides behind". There was no identification of the management style or particularisation of Ms King's "previous history" which the costs respondents said was "well known" to management.[16] There was, further, no particularisation of how such conduct impacted on the costs respondents.
[73] Ultimately, only Ms Sherlock identified some earlier conduct of Ms King in private conference on 2 August 2017. Why this conduct was not particularised in her stop bullying application is not clear. The conduct Ms Sherlock complained of occurred in mid-2016 and the complaint by Ms King was made on 25 November 2016 such that there is a slight temporal connection that might leave open a finding of "repeated" conduct. It is not necessary for me to determine that question here but it does raise the possibility of some basis for the application of Ms Sherlock.
[74] In these circumstances, it is difficult to understand how Mr Dixon and Mr Jewell considered that, at the time they made their stop bullying applications, they had a reasonable chance of success given it would not be possible for them to demonstrate that Ms King had engaged in any repeated behaviour. Ms King said she had had no contact with Mr Dixon since March 2015 and Mr Jewell since mid-June 2016. This was not disputed by either of them. Further, neither suggested any interaction with Ms King in the past that they claimed was bullying conduct.
[75] For these reasons, I am satisfied that, on the facts known to Mr Dixon and Mr Jewell at the time they made their stop bullying applications that the applications were made without reasonable cause.
Did the stop bullying applications have no reasonable prospect of success?
[76] I am mindful of the warning given by the Full Bench in Baker that a conclusion on this question should only be reached "with extreme caution" where the "application is manifestly untenable."[17]
[77] For the reasons given above, I am satisfied that the stop bullying applications of Mr Dixon and Mr Jewell had no reasonable prospects of success. There was nothing put to me to suggest that their applications were anything but untenable. An inability to demonstrate repeated conduct by Ms King inevitably leads to a conclusion that the first limb of the requirement to have an order issued to stop bullying (that the behaviour was repeated) could not be met. There is nothing in either application to suggest either has been bullied as defined in the FW Act and nothing was put to me in conference to suggest otherwise.
[78] For the same reasons as given above I cannot find that Ms Sherlock's stop bullying application was manifestly untenable. This should not be taken to suggest that I have concluded she had an application that would succeed. Her stop bullying application had a long way to travel before such a conclusion could be even considered.
Can costs be awarded if a notice of representative commencing to act has not been filed?
[79] A review of the Commission's file indicates that on 31 August 2017 Ms King's lawyer advised that he was representing Ms King in the matter. Unfortunately it appears that this correspondence was not forwarded to United Voice. This failure, however, cannot be taken to mean that the Commission was not notified of a representative commencing to act.
[80] I would however make the following observations.
[81] The Fair Work Commission Rules 2013 state:
11 Notice of representative commencing or ceasing to act
(1) A person who commences to act as a lawyer or paid agent of a party to a matter that is already before the Commission must lodge a notice with the Commission.
Note: The notice must be in the approved form - see subrule 8(2).
(2) Subject to section 596 of the Act, the Commission may permit a person to represent a party in a matter before the Commission despite the person's failure to lodge a notice in accordance with subrule (1).
Note: Section 596 of the Act provides for when a party may be represented by a lawyer or paid agent.
(3) A person who ceases to act as a lawyer or paid agent of a party to a matter before the Commission must lodge a notice with the Commission.
Note: The notice must be in the approved form - see subrule 8(2).
[82] There is nothing in the Rule that suggests the notice must be provided to the other party. I note however that the Form F53 cover sheet does stipulate a requirement that it be served on other parties to the matter in questions as soon as possible after it is filed with the Commission.
[83] Whilst the notice was not provided to the Commission in the approved form (Form F53), to the extent that it is necessary I waive compliance with the rules pursuant to Rule 6 and accept the notice as given. To the extent it was not provided to the costs respondents, I do not consider this fatal to the efficacy of the notice.
[84] Further, there does not appear to be anything in s.611 of the FW Act that suggests that the only costs recoverable are those incurred in obtaining legal advice in circumstances where a notice of representative commencing to act has been filed.
[85] For the reasons given below, I do not need to reach a concluded view on this matter.
[86] The geneses of the stop bullying applications were a perceived "bullying complaint" made against the costs respondents by Ms King.
[87] It appears that Ms King made no "bullying" complaint. Rather, she raised with management some comments made about herself that she had been told about by others. She detailed those conversations and who had told her of them. She concluded that the incidents were making her feel "uncomfortable/anxious" and she found "this and many other behaviours to be unprofessional." She did not, in raising the matters with management, indicate that she considered the conduct bullying or even that she wished to have the matters investigated. It seems that management, having been alerted to the events and what was allegedly being said of Ms King in the workplace, chose to conduct an investigation, as is their right and responsibility.
[88] The stop bullying applications were made by the costs respondents on 27 June 2017 and 2 July 2017 respectively. On 3 August 2017 (the day after the first conference before the Commission) Ms Amber Garden emailed Ms King as follows:
Further to our teleconference this afternoon, please find attached the Workers Compensation and Form 1 of Fair Work Commission.
Brendan would also like to make the offer to you that Council would like to contribute up to $5,000 towards your legal costs with De Silva if you decide to put in a vexatious claim via the Form 1.
If you would like to put forward a workers compensation claim, please let me know...
[89] Ms King said that she did not accept the offer of the $5,000 until February 2018. She said that if her application for costs is successful she would have no hesitation returning the funds back to the City of Darwin.
[90] Ms King engaged a lawyer and incurred legal costs following the first conference. It appears from the costs schedule provided by her lawyers that she first consulted the lawyers on or about 10 August 2017. The total costs she claims (as opposed to the total she may have incurred) is $5,103.00.[18]
[91] Perusing the costs schedule I am satisfied that some of the costs claimed are not in relation to the stop bullying applications made by the costs respondents. To the extent Ms King might seek costs extraneous to the stop bullying applications made by the costs respondents, such costs cannot be considered.
[92] The stop bullying applications by the costs respondents did not proceed to a merits hearing, something emphasised by the costs respondents, such that evidence was not heard from anyone. This fact weighs neither for nor against the grant of the application for costs of Ms King. Further, that Ms King asked not to be in the same room as the costs respondents during the conference on 2 August 2017 and hence did not hear directly from the costs respondents any direct articulation of conduct they perceived to be bullying does not go against the grant of the costs order.
[93] I have very carefully weighed up the competing claims with respect to the application for costs. Ultimately it does not appear that the City of Darwin, in providing Ms King with an ex-gratia payment to meet (some of) her legal costs, sought to attach any strings to that money, in particular, there was no requirement that, should she be successful in a "vexatious claim" she should be required to repay the money to the City of Darwin.
[94] This has been an unfortunate case. The effects of the stop bullying applications have been far-reaching. The ripples caused by those applications have not yet ended. Whilst the costs respondents remain at work (although Mr Dixon has now left the City of Darwin) Ms King has been absent from the workplace since mid-2017.
[95] The costs respondents had a number of avenues they could have taken to resolve the grievance they had with how the City of Darwin undertook the investigation into complaints made by Ms King. It is unfortunate that each chose to make a stop bullying application in which they named Ms King who had done no more than make a complaint about what she had heard was being said of her in the workplace. It was within her rights to do so.
[96] It is true that the FW Act sets a presumption that each party will bear its own costs in a matter before the Commission.
[97] In circumstances where the City of Darwin has agreed to meet the costs of Ms King and has, in fact, passed an amount of money over to her in respect to those legal costs and in circumstances where the presumption is that parties will bear their own costs, I have decided to exercise my discretion and not require the costs respondents to meet Ms King's legal costs.
[98] The application for costs is therefore dismissed.
D. Yali for Paul Dixon, Andrew Jewell and Wendy Sherlock.
[1] See Form F72 of each of the costs respondents.
[3] United Voice written submissions of 5 April 2018, Attachment B,
[12] See Form F72 of each of the costs respondents.
[16] See Form F72 of each of the costs respondents.
[17] [2011] FWAFB 4014, 2nd dot point at [10].
[18] Each of the Form F6 applications lodged by Ms King seeks costs of $1701 from each of the costs respondents which totals $5103.00
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(2012) 224 IR 16