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[2019] FWC 7344
General information, not legal advice.
Fair Work Commission
2019-10-23
Original judgment source is linked above.
s.789FC - Application for an order to stop bullying
Application for an FWC order to stop bullying. - application to dismiss pursuant to s.587(1)(c) - whether application for order has no reasonable prospect of success - whether application should be adjourned pending hearing and determination of general protections proceedings - application to dismiss granted.
[1] By application lodged with the Fair Work Commission (the Commission) on 7 August 2019, Ms Janett Dobler (the Applicant) seeks an order to stop bullying (the anti-bullying application) pursuant to s.789FC of the Fair Work Act 2009 (the Act). The Applicant alleges that she has been bullied at work during her employment with Royal Freemasons Homes of Victoria Ltd (Royal Freemasons). She alleges that she has been subjected to bullying at work by a colleague, who is employed by Royal Freemasons. The colleague together with Royal Freemasons are hereafter collectively referred to as the "Respondents".
[2] The Applicant's application for an order to stop bullying pursuant to s.789FC of the Act was allocated to me on 19 August 2019 and I listed it for a conference to take place on 9 September 2019.
[3] At the conference, I determined that the anti-bullying application should be listed for hearing. On 10 September 2019, I issued directions as follows:
the Applicant was directed to file and serve a witness statement or an outline of position and statement of alleged facts and any other material on which she intended to rely, including the orders being sought from the Commission, by 4:00pm on 20 September 2019;
Royal Freemasons were directed to file a witness statement or an outline of position and statement of alleged facts on which they intend to rely, and any further material in response to the allegations made, and the orders sought, by the Applicant by 4:00pm on 4 October 2019;
the colleague was directed to file any response to the applications or any submissions or material in relation to the matter, should she wish to do so, by 4:00pm on 4 October 2019; and
the application was listed for hearing on 10:00am on 10 October 2019.
[4] On 19 September 2019 the Applicant lodged her Submissions.
[5] On 24 September 2019 I received an email from the Applicant that attached a copy of a letter from Royal Freemasons to the Applicant dated 23 September 2019 that notified the Applicant that her employment had been terminated with effect from 23 September 2019 (the Termination Letter). It was evident from this email correspondence that the Applicant disputes the termination.
[6] On 24 September 2019 in an email sent from my chambers to the parties I sought the views of both parties in relation to the future conduct of the anti-bullying application. In particular, in the circumstances where the Applicant was no longer employed by Royal Freemasons, I raised the question as to whether the Applicant could persuade the Commission that there was a risk that she would continue to be bullied at work. The parties were requested to provide their views in writing to me by 12:00pm on Thursday 26 September 2019.
[7] Subsequently, on that same day, 24 September 2019, Royal Freemasons filed with the Commission a Form F1 Application for the anti-bullying application to be dismissed pursuant to s. 587(1)(c) of the Act on the basis that it has no reasonable prospect of success (the Dismissal Application).
[8] On 24 September 2019 I issued directions as follows:
the previous directions dated 10 September 2019 be vacated and no longer needed to be complied with;
the Applicant was directed to file and serve submissions in response to the Dismissal Application by 4.00pm on 1 October 1019;
the colleague was directed, should she wish to do so, to file and serve any submissions in response to Dismissal Application by 4.00pm on 1 October 2019;
Royal Freemasons was directed to file and serve any submissions in reply by 4.00pm on 7 October 2019;
the Dismissal Application was listed for hearing at 10am on 10 October 2019.
Submissions in relation to Royal Freemasons' application pursuant to s.587(1)(c) of the Act
[9] On 30 September 2019 the Applicant filed her response to the Dismissal Application. In her response, while the Applicant disputed the reasons for the termination of her employment, she acknowledged that the employment relationship had ended and that she was no longer employed by Royal Freemasons and accepted the proposition there could not be any risk of continuing bullying at work.
[10] On 1 October 2019 the colleague filed submissions stating that she agreed with the Dismissal Application.
[11] In an email to the Commission on 4 October 2019, the Respondents requested that the Dismissal Application be determined on the papers and the hearing date of 10 October 2019 be vacated. This request was made with it having been agreed that the employment of the Applicant had been terminated and the factual evidence of the termination of employment in the form of the termination letter dated 23 September 2019 having been provided.
[12] On 7 October 2019 I caused an email to be sent to the parties advising them that after reviewing the materials filed by the parties and the request by the Respondents, I would conduct a Telephone Mention on 10 October 2019.
[13] Submissions on behalf of Royal Freemasons were received on 7 October 2019, including an application under s.596(1) of the Act to be represented by SIAG Lawyers at the Telephone Mention on 10 October 2019. It was submitted that in accordance with s.596(2)(a) of the Act representation would enable the matter to be dealt with more efficiently given the complexity involved where the Respondent seeks to agitate a jurisdictional issue.
[14] The basis of Royal Freemasons' application pursuant to s.587(1)(c) of the Act was that the Commission cannot be satisfied that the Applicant is at risk of being bullied at work now that she is no longer employed by Royal Freemasons and therefore her anti-bullying application has no reasonable prospect of success.
[15] Royal Freemasons also submitted:
- that at the time of filing the anti-bullying application, the Applicant was subject to an internal disciplinary process into allegations of misconduct outlined in a letter to the Applicant of 31 July 2019 (the Disciplinary Process);
- the Disciplinary Process was finalised and on 23 September 2019 Royal Freemasons terminated the Applicant's employment and confirmed this to the Applicant in the Termination Letter on the same date;
- in accordance with s. 789FF(b) of the FW Act, the Commission may only make orders in the anti-bullying application to prevent the Applicant from being bullied at work where is it satisfied that:
b. there is a risk that she will continue to be bullied at work.
[16] Royal Freemasons concluded that in circumstances where the Applicant is no longer employed by them, she is no longer "at work". The decisions in Shaw v Australia and New Zealand Banking Group Limited t/a ANZ Bank [1] (Shaw), Re Mr M T[2] and Re Ms Brenton[3] were referred to in support of the premise that the Commission cannot, therefore, be satisfied there is a risk that in future the Applicant will be bullied "at work" with the Respondents.
[17] Finally, Royal Freemasons stated that while there was no material before the Commission, or known to them, to support that the Applicant has made any application seeking reinstatement with them, such action would not (in any event) preclude the Commission from exercising its discretion to dismiss the anti-bullying application under s.587(1)(c) of the Act.
[18] Royal Freemasons summarised their submissions stating that the Commission has no power to make orders sought in the Application as:
a. to be able to make orders to stop bullying, the Commission must be satisfied (amongst other things) that there is a risk that the worker will continue to be bullied at work by the individual or group of individuals that are respondent to the application;
b. the Applicant is no longer employed by the Respondent Employer and will no longer be "at work";
c. in light of the above, there is no future risk that the Applicant will be bullied at work.
[19] On this basis, Royal Freemasons submitted that the anti-bullying application had no reasonable prospect of success and requested the Commission to exercise its discretion in accordance with s.587(1)(c) of the Act to dismiss the anti-bullying Application for want of jurisdiction.
[20] On 8 October 2019, by way of response to the submissions of Royal Freemasons, the Applicant submitted a Form F8 General protections application involving dismissal (Form F8), that is, a general protections application pursuant to s.365 of the Act.
[21] On the same date I caused an email to be sent explaining that by submitting a Form F8 the Applicant was purporting to commence a new process which had been directed for processing at the Commission[4] but that I would not be dealing with the s.365 application at the Telephone Mention. This email outlined that the purpose of the Telephone Mention was to discuss Royal Freemasons' application for an order to dismiss the anti-bullying application made pursuant to s.789FC of the Act. It was also stated that following the Telephone Mention, I would determine whether or not to make an order to dismiss the anti-bullying application, based on the oral submissions made at the Telephone Mention as well as the written submissions filed by the parties thus far in the process.
[22] On 10 October 2019 the Telephone Mention took place. I exercised my discretion and granted Royal Freemasons's application under s.596 of the Act for permission to be represented by SIAG Lawyers in accordance with s.596(2)(a) of the Act as I was persuaded it being so represented would enable the matter to be dealt with more efficiently, having regard to its complexity. The parties spoke to their written submissions and the Applicant further submitted was that she continued to be bullied by virtue of not having been paid her termination pay.
[23] The relevant remedy in respect of applications for an order to stop bullying is an order which the Commission considers appropriate "to prevent the worker from being bullied at work by the individual or group".[5] The discretion to make an order to stop bullying is only exercisable if the Commission is satisfied that:
the worker has been bullied at work by an individual or a group of individuals; and
• there is a risk that the worker will continue to be bullied at work by the individual or group.[6] (my emphasis)
[24] The Act requires the Commission to be satisfied of the first limb outlined above, and if so, the Commission must also be satisfied there is a risk that the worker will "continue" to be bullied "at work" by the individual or group responsible for the bullying.
[25] Therefore, in this case, if I was satisfied that the Applicant has been bullied at work by an individual, or group of individuals, the relevant enquiry then shifts to whether there is a risk that she will continue to be bullied at work by the individual or group of individuals.
[26] In Shaw, which involved an employee who had been dismissed, Deputy President Gostencnik found as follows:
"[15] As s. 789FF(b) makes clear, I must be satisfied not only that Mr Shaw has been bullied at work by an individual or group of individuals but also that there is a risk that he will continue to be bullied at work by that individual or group of individuals. Therein lays the difficulty for Mr Shaw. It seems to me that I have no power to make an order to stop bullying unless I can be satisfied relevantly that there is a risk that at work Mr Shaw will continue to be bullied by the individual or group of individuals identified in his application.
[16] It is clear that Mr Shaw is no longer employed by ANZ. The employment relationship has ended. That Mr Shaw is taking steps to seek a remedy in relation to his dismissal and that that may result in reinstatement at some point in the future does not have a bearing on the question that I must answer and is speculative and uncertain. It seems to me clear that there cannot be a risk that Mr Shaw will continue to be bullied at work by an individual or group of individuals identified in his application because Mr Shaw is no longer employed by ANZ and therefore is no longer at work.
[17] It necessarily follows that I do not have power to make an order to stop bullying and, as a consequence, I am satisfied that Mr Shaw's application has no reasonable prospect of success. I see no reason in the circumstances why I should not exercise my discretion to dismiss Mr Shaw's application given my finding and I do so... I would observe that, if as a consequence of Mr Shaw's general protections application or any other remedy that he seeks, he is reinstated to his former position or another position with ANZ and at that point he has concerns about a risk of being bullied at work, it seems to me, and the ANZ seem to accept that he will be at liberty to make a fresh application at that time. That he has made this application and that it has been dismissed will not operate as a bar to any future application if the jurisdictional facts can be established in relation to that application."
[27] In Re G.C.[7], Commissioner Hampton referred to Shaw and stated:
"[166] With respect, I agree with the Deputy President that the import of s.789FF(1)(b)(ii) is that for an order to be made, the Commission must be satisfied that there is a risk that the (applicant) worker will continue to be bullied at work by the individual or group (found to have bullied the applicant). For my part, where an applicant will no longer be at work with the relevant individual or group, and there is no reasonable prospect of that occurring in some capacity as a worker in the future, in almost all cases it will not be possible for an applicant to demonstrate the future risk requirement. This requires a consideration of the particular circumstances of the parties including the potential to return to the workplace in some capacity as a worker." (emphasis in original)
[28] Obatoki v Mallee Track Health Community Services and Others[8] (Obatoki) concerned a case where the applicant's services had been terminated and he was no longer working for the respondent. In that context, the Full Bench of the Commission found:
"[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.
[17] It is worth noting, as did the Deputy President in the decision below, that there is nothing to preclude the Appellant, should he return to work at Mallee Track at some future point, from making another application under s.789FC subject to the jurisdictional facts being established in relation to that application." (references omitted)
[29] In Atkinson v Killarney Properties Pty Ltd T/A Perm-A-Pleat Schoolwear and Palm[9], the Full Bench was not persuaded that Shaw and Obatoki were wrongly decided and held that it had been open to Commissioner Williams at first instance to determine that the anti-bullying application of the worker, who had been terminated after it had been lodged, be dismissed on the basis that it had no reasonable prospects of success. The Full Bench also stated:
"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."[10]
[30] In Willis v Capital Radiology Pty Ltd T/A Capital Radiology; Ms Peita Carroll; Ms Marie Gibson; Mr Dominik Kucera[11] (Willis), Deputy President Gostencnik dealt with an application for an order to stop bullying in circumstances where the applicant had been summarily dismissed and had commenced an adverse action claim in the Federal Circuit Court of Australia in relation to his dismissal. In granting the respondent's application for the dismissal of the anti-bullying application pursuant to s.587(1) of the Act, the Deputy President concluded:
"[19] Each case of this kind will turn on its own peculiar facts. It should not be assumed that it will always be appropriate to dismiss an application for an order under s.789FF because the worker has been dismissed. In some circumstances it may be appropriate to adjourn a proceeding instead of dismissing it or to proceed with determining the other preconditions in s.789FF before considering the question of risk of continued bullying at work.
[20] I have given consideration to both these possible courses of action but I have concluded that neither course is appropriate in the present circumstances. If I were to proceed to determine the matter, I would likely face the same question concerning risk in a few months. At that point the conclusion would be the same. The efficient administration of justice is not served by this course and resources of the parties would be unnecessarily expended.
[21] An adjournment for a period that is both lengthy and presently indeterminate is also not conducive to the efficient administration of justice. Cases of this kind should be determined with reasonable expedition. Certainly, the legislature had this in mind by mandating that the Commission start dealing with such an application within 14 days after the application is made. Moreover, in the event that the Applicant succeeds before the Federal Circuit Court and he is reinstated, he is free to make another application if he believes there is a risk of continued bullying and it seems to me, there is nothing to prevent the Applicant relying on the conduct currently alleged in this application to make good the other jurisdictional fact requirements. As such, no real prejudice is suffered by the Applicant, and there will be no material delay in dealing with a new application on that basis when compared to the delay in determining this application if it were adjourned, pending the hearing and determination of the Federal Circuit Court proceeding.
[22] I am therefore of the opinion that the application for dismissal of the Applicant's application for an order under s.789FF should be granted..." (references omitted)
[31] In Willis, Deputy President Gostencnik helpfully discussed the Commission's discretionary power under s.587 of the Act in the context of an anti-bullying application, with reference to Spencer v The Commonwealth of Australia[12], and his observations, in my view, included:
• a conclusion that an application has no reasonable prospect of success should only be reached with extreme caution and in circumstances, for example, where an application is manifestly untenable or is groundless or is so lacking in merit or substance as to be not reasonably arguable;[13]
• the circumstances in which the phrase "has no reasonable prospect of success" might apply should not be confined to those that are frivolous, untenable, groundless or faulty. Full expression should be given to the phrase;[14]
• the answer to the question whether a particular application has no reasonable prospect of success in the context of s.587 of the Act may differ depending on the time at which the question is asked. As such, while an application at its inception may have some reasonable prospect of success, if circumstances change during the course of dealing with it, it might no longer have a reasonable prospect of success;[15] and
• in assessing whether "the application" for an order under s.789FF of the Act "has no reasonable prospects of success", it is necessary to consider whether each of the preconditions for the making of an order under that section might be able to be made out.[16]
[32] I have had regard to these cases and principles. In determining whether the Applicant's anti-bullying application has no reasonable prospect of success, I am required to assess whether there is some reasonable prospect that the Applicant will be able to persuade me to make an order under s.789FF of the Act, having regard to things as they currently stand.
[33] Clearly, the Applicant has made an application under s.789FC of the Act. This is the first matter about which I must be satisfied before considering whether to exercise my discretion to make an order to stop bullying.
[34] The next matter about which I must be satisfied is whether the Applicant has been bullied at work by an individual or a group of individuals. This is very much in dispute but if I was to assume, purely for the purposes of the Dismissal Application, that the Applicant would be able to satisfy me that she was bullied at work, two of the three prerequisites in s.789FF(1) of the Act for the making of an order would be satisfied.
[35] As s.789FF(1)(b)(ii) of the Act makes clear, I must also be satisfied that there is a risk that the Applicant will continue to be bullied at work by an individual or group of individuals. As was stated in Willis, "without satisfaction of the existence of a risk of continued bullying at work of the applicant by the individual or group there is an absence of power to make an order"[17] to stop bullying and each case turns on its own facts.[18]
[36] The Applicant's employment with Royal Freemasons has been terminated. As things currently stand, the Applicant is no longer employed or at work and it cannot presently be concluded that there is a risk that she will continue to be bullied at work there. This has been the case since 23 September 2019 and continues to be the case as at the date of this decision. The general protections application, referred to in [20] above has now been discontinued by the Applicant. A second general protections application was filed by the Applicant but this has also been withdrawn and an unfair dismissal application has now been filed by the Applicant[19]. If this unfair dismissal application is unable to be resolved at conciliation or settled following it, will take some months to resolve. In such a scenario, the Applicant will not be at work with Royal Freemasons for the foreseeable future and any return to work, if that is what the Applicant ultimately seeks, is conditional on a number of factors and not guaranteed.
[37] For example, while the Act gives the Commission the power to make an order for reinstatement in an unfair dismissal application under certain circumstances, it may be resisted and the conclusion of the Commission may be that reinstatement is inappropriate.[20] Therefore, as things currently stand, there cannot be a risk that the Applicant will continue to be bullied "at work" with Royal Freemasons.
[38] I am therefore satisfied I do not currently have the power to make an order to stop bullying and, as a consequence, I am satisfied that the Applicant's application for an order under s.789FF of the Act has no reasonable prospect of success.
[39] It was not proposed by either party and nor do I consider it appropriate to proceed at this time to hear and determine whether the Applicant has been bullied at work. If I were to adopt this course, and the unfair dismissal application was not subsequently resolved in the Applicant's favour with reinstatement as the outcome, the resources of the parties would have been unnecessarily expended.
[40] Further, I do not consider an adjournment for a currently indeterminate period pending the resolution of the unfair dismissal application to be conducive to the efficient administration of justice. In this regard, I have considered what was said in Willis:
"Cases of this kind should be determined with reasonable expedition. Certainly, the legislature had this in mind by mandating that the Commission start dealing with such an application within 14 days after the application is made."[21]
[41] Should the Applicant succeed in securing reinstatement through her unfair dismissal application and at that point still holds the concern that there is a risk of continued bullying at work, she will be free to make another anti-bullying application. There is no bar to her making a fresh application and nor will she be prevented from relying on the conduct alleged in this anti-bullying application to make good the requirement in s.789FF(1)(b)(i) of the Act. I have considered the views expressed in Shaw[22], Obatoki[23] and Willis[24] in this regard.
[42] I am also satisfied the Applicant will not suffer any real prejudice if this anti-bullying application is dismissed and there will be no material delay in dealing with a new anti-bullying application when compared to the delay in determining this anti-bullying application, if it were adjourned pending the hearing and determination of the Applicant's unfair dismissal proceeding.
[43] I am therefore persuaded to exercise my discretion to grant the application of Royal Freemasons pursuant to s.587(1)(c) of the Act and dismiss the Applicant's anti-bullying application on the basis that it has no reasonable prospects of success. An order dismissing the Applicant's anti-bullying application will be issued along with this decision.
Ms L Charlesworth on behalf of Royal Freemasons Homes of Victoria Ltd and the colleague.
[5] Fair Work Act 2009 (Cth) s.789FF
[6] Fair Work Act 2009 (Cth) ss.789FF(1)(b)(i) and (ii).
[13] [2016] FWC 716 at [7].
[17] [2016] FWC 716 at [15].
[20] Fair Work Act 2009 (Cth) s.390(3).
[21] [2016] FWC 716 at [21].
[22] [2014] FWC 3408 at [17].
[24] [2016] FWC 716 at [21].
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