Hang Li [2021] FWC 5348 | Case summary

Fair Work Commission|2021-09-03

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

[1] On 21 April 2021, Mr Hang Li (Applicant) made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (Cth) (FW Act). Mr Li alleges that he has been bullied at work during his employment with StarTrack Express Pty Limited (StarTrack). He alleges that he has been subjected to bullying at work by Mr Hayden McMullan, Mr Ivan Pucci and Mr Matthew Rees, each of whom is employed by StarTrack. These employees together with StarTrack are hereafter collectively referred to as the 'Respondent'.

[2] This matter was allocated to me on 10 May 2021. The matter was listed for conference by telephone on 21 May 2021. On 17 May 2021, Mr Li emailed the Commission indicating that he felt that "it is unfair for me to attend the telephone conference" and requesting that the Commission allow him to "call some colleagues at Startrack as witnesses and we move directly to the hearing stage." On 17 May 2021, my chambers responded to Mr Li indicating that the matter remains listed for conference, and that he is expected to attend.

[3] On 18 May 2021, the Respondent wrote to my chambers seeking an adjournment of the conference listed on 21 May 2021 to 28 May 2021. My chambers wrote to Mr Li, seeking his views regarding the adjournment sought. Mr Li responded on 19 May 2021 indicating that he was unavailable on 28 May 2021. As such, the conference was adjourned to an alternative date, being 27 May 2021.

[4] On 20 May 2021, Mr Li emailed the Commission expressing his discontent with the management of his application. My chambers responded to Mr Li indicating that I would deal with the matters raised in his email during the conference on 27 May 2021.

[5] On 26 May 2021, the Applicant indicated via email that he did not wish to take part in the conference due to his dissatisfaction with the management of his application and the Respondent's conduct. My chambers wrote to Mr Li and advised that I would deal with his concerns during the conference on 27 May 2021.

[6] On 27 May 2021, my associate contacted Mr Li for the conference. Mr Li advised that he did not want to participate in the conference and terminated the call. An email was sent to parties confirming that Mr Li refused to participate in the conference and indicating that we would be in touch regarding the further programming of the matter. The matter was subsequently listed for mention and/or directions hearing at 10:00 am on 3 June 2021.

[7] Mr Li sent an email to the Commission at 8:44 am on 3 June 2021 indicating that "I am not going back to the same workplace even after I can get some compensation and a better job at Tullamarine depot." During the mention and/or directions hearing, Mr Li confirmed that he did not intend on returning to his current workplace at StarTrack but was seeking to be relocated to another workplace at Australia Post.[1]

[8] After the mention and/or directions hearing, directions were issued in the matter. The directions dated 3 June 2021 made reference to Mr Li's email sent at 8:44 am, and the contention that he did not intend on returning to his current workplace at StarTrack but was seeking to be relocated to another workplace at StarTrack. Parties were directed to file material taking into account s.789FF of the FW Act as set out in the directions. Mr Li was directed to file his material by 17 June 2021, and the Respondent by 1 July 2021. The directions also indicated that the matter would be listed for hearing on 13 July 2021.

[9] On 17 June 2021, Mr Li wrote to the Commission indicating that he was seeking some "information" from the Respondent which had not been provided, therefore he could not file his submissions by 17 June 2021. Mr Li sought an extension to file his submissions. My chambers responded to Mr Li indicating that that I had considered his correspondence and that I was not satisfied that it was appropriate in the circumstances to grant the extension sought. Mr Li was also sent a link to the Commission's website which provides some guidance on how to deal with requests for information or documents.

[10] Mr Li did not file any material pursuant to the directions issued on 3 June 2021. The matter was subsequently listed for non-compliance hearing on 24 June 2021. Mr Li emailed my chambers indicating that he could not attend the non-compliance hearing as he had an appointment at that time. Mr Li requested that the non-compliance hearing be adjourned to 25 June 2021. I granted the adjournment request, and the listing was adjourned to 25 June 2021.

[11] On 23 June 2021, the Respondent filed a Form F1 application seeking to dismiss Mr Li's application pursuant to s.587 of the FW Act. My chambers subsequently sent an email to parties on 23 June 2021. The email explained the purpose of the non-compliance hearing and indicated that this was a separate hearing to the one scheduled on 13 July 2021. The email also confirmed receipt of the Form F1 sent by the Respondent and indicated that I would deal with the application during the non-compliance hearing. In the email, my chambers also offered to arrange an interpreter for Mr Li if he required. Mr Li subsequently indicated that he would like an interpreter to be arranged for the hearing. I note that an interpreter was subsequently arranged for Mr Li for every listing thereafter.

[12] On 24 June, Mr Li wrote to my chambers indicating that he understood that he had to file submissions but was seeking the progress of the "investigations" which he intended to use as evidence.

[13] During the non-compliance hearing on 25 June 2021, I raised several matters with the parties. The first being whether Mr Li intended on filing any material in support of his application.[2] Mr Li indicated that "key evidence" in his matter was the "safety work report", which had not been provided to him.[3] I indicated to Mr Li that he was provided with information regarding how to make an application for the production of material that he claimed is relevant to the case. Furthermore, that he had failed to comply with the directions issued on 3 June 2021. Mr Li indicated that he understood, and had emailed the Commission to explain why, being that the "witness refused to provide any evidence or report".[4]

[14] I then asked Mr Li whether he intended to file any material, or whether he wanted to proceed with the material that he had filed, being his application.[5] Mr Li reiterated his request that the Respondent provide the "report" and expressed a belief that the Commission could obtain it by "subpoena" or through the "Freedom of Information process".[6] I indicated that I would not be embarking on such a process. Instead, I referred again to Mr Li's right to make an application for the production of the documents he referred to.[7] Mr Li then confirmed that he did not intend on filing any submissions or witness statements and intended to rely on the material in his application.[8] In light of the uncertainty regarding Mr Li's intention to file any material up until the non-compliance hearing, the Respondent sought a week extension to file their material and Mr Li did not object to the request.[9] The extension was granted, and directions subsequently amended to allow the Respondent to file their material by 8 July 2021.[10]

[15] I then addressed the Respondent's Form F1 application to dismiss Mr Li's application pursuant to s.587 of the FW Act. I indicated that I had considered the Respondent's application and had made a decision not to grant the application.[11]

[16] On Monday 28 June 2021, parties were sent the amended directions. Mr Li was also sent a separate email referring to a "report" that he sought to have the Commission obtain from the Respondent. Mr Li was again provided a link to the Commission's website which provides some guidance on how to deal with requests for information or documents. He was also provided with a link to the Form F52.

[17] On 28 June 2021, Mr Li filed a Form F52. On the form, Mr Li sought the following:

"StarTrack HR office Dean Hose investigated my complaints and he prepared an internal WorkSafe accident report. I am seeking the report."

[18] Mr Li also sought an adjournment of the hearing scheduled on 13 July 2021. The adjournment request was granted, and the hearing was moved to 14 July 2021. The Form F52 was forwarded to the Respondent who was asked to advise whether they had an objection to the production of the report referred to by Mr Li in the Form F52 by not later than 4:00 pm, 30 June 2021. The Respondent did not advise of any objections, and the order[12] for the production of the "Internal WorkSafe Accident Report prepared by Mr Dean Hose" was issued on 1 July 2021.

[19] On 2 July 2021, the Respondent indicated that they were unable to provide the document pursuant to the order as they were "unable to locate any report titled 'Internal WorkSafe Accident Report'" and that "Mr Hose has not prepared any accident reports relating to the Applicant." The Respondent also requested that Mr Li identify the document for production with further particularity. Mr Li responded on 4 July 2021 with further information about the report sought. My chambers emailed Mr Li seeking confirmation regarding our interpretation of the further information that he provided. Mr Li was required to respond by 7 July 2021. However, he did not respond to this email and a document was not produced pursuant to the order made.[13]

[20] On 8 July 2021, the Respondent filed their submissions.

[21] Mr Li contacted my chambers via telephone on 20 July 2021 indicating that he still wishes to obtain the report and that he would lodge another Form F52. My associate indicated to Mr Li that he could lodge a Form F52, and a process similar to the previous occasion would be followed. Mr Li subsequently lodged another Form F52 seeking the "full Comcare investigation report". My chambers emailed the Respondent on 21 July 2021 asking the Respondent to advise if there was any objection to the production of the report referred to by Mr Li in the Form F52. On 23 July 2021, the Respondent indicated that they did not object to the production of the report but requested that the report be redacted to provide Mr Li with only the parts of the report which are relevant to the proceedings. Furthermore, the Respondent requested that the redacted report be made subject to a confidentiality order as they "have a legitimate concern that Mr Li will use the report for purposes outside the present proceeding" due to his previous conduct.

[22] On 26 July 2021, my chambers wrote to the Respondent seeking the full report, the redacted report, and the Respondent's views as to which parts of the report are not relevant and should therefore be redacted. The Respondent provided the relevant documents and submissions as to why the redactions were appropriate. I considered the Respondent's submissions regarding the proposed redactions and formed the provisional view that the redactions were appropriate. As such, the redacted report was sent to Mr Li on 3 August 2021. Mr Li was also informed that I had reviewed the full report and had "formed the provisional view that a number of parts of the document have no apparent relevance to issues in the main matter before the Commission", as a result the report was redacted accordingly. Mr Li was given the opportunity to object to the redaction of the report by 5 July 2021. This date contained an error and should have read "5 August 2021".

[23] On 4 August 2021, Mr Li subsequently wrote to the chambers of Ross J indicating that the deadline set for him to object to the redactions in the Comcare report denied him the opportunity to exercise his rights. Mr Li indicated that he had already sought the full report from Comcare and would receive a copy which he would use in his appeal to the decision if necessary.

[24] The matter was subsequently listed for hearing on 10 August 2021 to deal with Mr Li's objection as expressed to in his email to Ross J. Mr Li did not respond to the numerous phone calls made by my chambers in order to connect him to the hearing on 10 August 2021. He did on one occasion respond, and then subsequently terminated the call after speaking to my associate in a discourteous manner. Mr Li was finally contacted, and the hearing commenced at 4:18 pm. During the hearing, I heard from both parties regarding the production of the full Comcare report. I subsequently issued a decision in the matter. I indicated that I was satisfied that the redacted sections of the report are of no relevance to the matter, and that the unredacted sections provided to Mr Li should be made subject to a confidentiality order sought by the Respondent.[14] Furthermore, I indicated to Mr Li at that hearing that he has continuously delayed and frustrated the proceedings of the Commission, and that in the future it is expected that he would attend the proceedings at the times listed. Mr Li was also informed that unless he had a reasonable excuse, if he did not attend the proceedings they would proceed in his absence.[15] A confidentiality order for the redacted report was issued on 11 August 2021.[16]

[25] I note that the majority of the correspondence sent by Mr Li has not been sent to my chambers. Instead, it has been sent to other Members or branches of the Commission as well as various external bodies. For example, Mr Li has sent correspondence to the Premier of Victoria, the Attorney-General and news outlets such as The Age. Numerous requests were made to Mr Li to send any correspondence relating to his application to my chambers and the parties involved in the proceedings, however, he has continuously failed to comply with this request.

[26] Due to the COVID-19 restrictions, and to facilitate an in-person hearing, the hearing was initially adjourned to 4 August 2021. The hearing was again moved to 26 August 2021 due to a scheduling issue. A Notice of Listing was sent to parties on 23 July 2021 confirming the new date. It became increasingly clear that the public health restrictions would not be eased making an in person hearing unlikely, and a further Notice of Listing was sent to parties on 18 August and 23 August indicating that the hearing would take place by video via Microsoft Teams. The Notice of Listings contained the link to the Microsoft Teams hearing. It encouraged parties to test the link before the hearing and offered support in the event of any difficulties.

[27] On 23 August 2021, Mr Li wrote to the chambers of Ross J querying whether attendance at the hearing was mandatory or optional.

[28] On 23 August 2021, a Digital Court Book was sent to parties, and parties were asked to confirm their appearances. An interpreter was also organised for Mr Li. The Respondent confirmed their appearances, but Mr Li did not.

[29] At 9:12 am on 26 August 2021, Mr Li emailed the Chambers of Ross J indicating that:

"I am hang LI. an applicant for AB 2021/226. As you know from the very beginning, I raised my concerns over the fairness of the whole procedures and the consistency of absence of three key Startrack respondents. During the last meeting, when I directly asked Commissioner Lee whether the attedance was opitional or required at the Commission, he simply told me that he could make his decision in my absence. Considering his response and my medical treatment today ( Since March 2021, I have been put under medical treatment on regular basis at least for 6 months), I decided not to interrupt my treatment today with doctor and am ready to appeal to the decisions reached by Commissioner Lee. Please inform me of all the procedures I need to follow to appeal. I will send this letter to the attorney general office as future reference."

[30] This email was forwarded to my chambers at 9:48 am. Mr Li did not attend the hearing. My associate attempted to dial Mr Li directly into the hearing, however, he did not answer the numerous calls made. The Respondent indicated that they were ready "to proceed with today's hearing and wish to make submissions to the Commission in relation to Mr Li's email". The hearing commenced without Mr Li. During the hearing, the Respondent sought that the application be dismissed pursuant to s.587 of the FW Act on the grounds it has no reasonable prospects of success in circumstances where there is no evidence that the alleged bullying occurred and therefore there is no jurisdictional basis to make an order to stop bullying. I determined not to dismiss Mr Li's application on that basis that, at that point in time, I was concerned that Mr Li may have misunderstood the consequences of non-attendance at the hearing of his application for an order to stop bullying.

[31] The following email was subsequently sent to Mr Li on 26 August 2021:

I write in relation to the above matter and refer to your email below, which was forwarded to the Chambers of Commissioner Lee by the Fair Work Commission Registry at 9:48 am today.

The Commissioner has asked that the following information is communicated to you:

1. Your application was listed for hearing at 10:00 am today, Thursday, 26 August 2021.

2. A Notice of Listing was sent to you on numerous occasions advising that the hearing would take place today (it was sent on: 23/7/2021, 18/8/2021 and 23/8/2021).

3. Up until your email sent at 9:12 am today, less than one hour before the hearing, you had not provided any indication to the Commission that you were unavailable today.

4. While a link was provided to the hearing, my associate sought to contact you via telephone this morning in order to connect you to the hearing. However, you failed to respond.

5. The hearing commenced in your absence. At the hearing, the employer sought that the application be dismissed pursuant to s.587 of the Fair Work Act 2009 on the grounds it has no reasonable prospects of success in circumstances where there is no evidence that the alleged bullying occurred and therefore there is no jurisdictional basis to make an order to stop bullying.

6. The Commissioner determined not to dismiss your application on that basis at this point in time as he was concerned that you may have misunderstood the consequences of nonattendance at the hearing of your application for an order to stop bullying.

7. While it is a matter for you as to whether you wish to attend a hearing to pursue your application, the Commissioner is concerned that it is possible that you may not understand that if you do not attend a hearing to give evidence in support of your application, there will be no evidence before the Commission that the alleged bullying took place. In those circumstances, the Commission is likely to determine that the application has no reasonable prospects of success and the application may be dismissed on that basis.

The Commissioner asks that you consider the contents of this email and advise if you wish to attend a hearing.

Please provide your response by not later than 5:00 pm, Friday 27 August 2021. You must send your response to chambers.lee.c@fwc.gov.au

As you have been previously reminded, any correspondence relating to your application must be sent to chambers.lee.c@fwc.gov.au and to the parties involved in the application.

You are advised that if you do not reply by 5:00 pm, Friday 27 August 2021, it is likely that the application will be dismissed without further notice to you."

[32] Mr Li did not respond to the above email.

[33] Section 789FF of the FW Act provides:

(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

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:

[35] The Explanatory Memorandum to the Fair Work Bill 2008 outlined the following in relation to what would become s.587 of the FW Act:

2271. Subclause 587 allows FWA to dismiss, on its own initiative or on application, an application which is not made in accordance with the Bill, or that is frivolous, vexatious or has no reasonable prospects of success.

2272. However FWA may not dismiss an application to deal with a dispute involving a dismissal under clause 365 or clause 773 on the grounds that the application is frivolous, vexatious or has no reasonable prospects of success.

2273. This provision is not intended to limit FWA's power to dismiss applications for other reasons, such as failure to meet jurisdictional requirements."

[36] It is clear, therefore, that s.587 of the FW Act vests in the Commission a broad discretionary power to dismiss an application before it.

[37] It is a precondition to the granting of any order under s.789FF of the FW Act that the Commission must be satisfied of two matters. The first matter is that the worker has been bullied at work by an individual or group of individuals and the second is that there is a risk that the worker will continue to be bullied at work by the individual or group. As it stands, there is no evidence before the Commission on which I could be satisfied that either of those circumstances exist.

[38] The only material that I have from the Applicant is the completed Form F72 and the Comcare report. The Applicant has not filed submissions, witness statements or other documentary material pursuant to the directions issued, despite being given the opportunity to do so. While the Applicant was entitled to rely on the allegations and factual assertions contained in his Form 72 as the basis of his evidentiary case, it is necessary for him to attend a hearing to attest to that evidence in circumstances where the Respondent contests the allegations and submits that:

"The FWC should not be satisfied that any of the Respondents, acting individually or as a group, have repeatedly behaved unreasonably towards the Applicant, nor that any such behaviour has created a risk to the health and safety of the Applicant."[17]

[39] The Applicant failed to attend the hearing on 26 August 2021, which was his opportunity to present his case. By virtue of the correspondence sent by my chambers on 26 August 2021, the Applicant has been put on clear notice that in the event that he fails to attend a hearing, there will be no evidence to support the application, and it is likely that the application will be dismissed on the basis that there is no reasonable prospects of success. The Applicant has failed to respond to that correspondence.

[40] As there is no evidence before me that could provide a basis for being satisfied as to the matters in s.789FD nor the matters in s.789FF, the application has no reasonable prospects of success.

[41] For the foregoing reasons, I am satisfied that the Applicant's application for an order under s.789FF has no reasonable prospects of success. I have decided it is appropriate that I should exercise my discretion and dismiss the application.

[42] Accordingly, the application is dismissed under s.587(1)(c) of the FW Act.

[43] An order[18] to this effect will be issued concurrently with this decision.

[17] Respondent's Outline of Submissions dated 8 July 2021 at [42].

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Hang Li [2021] FWC 5348 (3 September 2021)

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Judgment (83 paragraphs)

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