Fair Work Act 2009

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

[1] This decision refuses an application for interim orders, in the context of an application for orders to stop bullying under s.789FC of the Act.

[2] Pending the final determination of his anti-bullying application, Mr Nicholas Richardson seeks interim orders that Optus Retail Co Pty Ltd (Optus) is not to:

1. Take any further steps to finalise the investigations of the Applicant;

2. Impose any disciplinary sanction on the Applicant in or in connection with those investigations;

3. Terminate the Applicant's employment; and

1. Allow the Applicant to resume his normal work.[1]

[3] I do not consider this an appropriate case to exercise the discretion to make interim orders under s.589(2) including because to do so would be inconsistent with the legislative purpose of preventing the Applicant from being bullied at work. The reasons follow.

[4] Mr Richardson is presently employed as Assistant Manager in an Optus retail store.

[5] On 15 April 2019, Mr Richardson applied for orders to stop bullying at work, claimed[2] to have occurred through the following conduct:

1. Breaching relevant Optus policies;

2. Contriving performance issues against me;

3. Deliberately excluding me;

4. Deliberately ignoring and refusing to communicate with me;

5. Being abusive towards me including berating me in front of others;

6. Deliberately allocating me to socially unfavourable work rosters;

7. Undermining me.

[6] The conduct is alleged to have been engaged in by an area manager and a store manager (the Second and Third Respondents) over some months prior to the application being made, escalating in the commencement of a performance management process. The conduct is described as having created a risk to Mr Richardson's health and safety by "making (him) believe (his) employment is now untenable".[3]

[7] Mr Richardson seeks final relief in the form of orders including to require: an impartial review of the performance management process; compliance with workplace policies; monitoring the behaviours and discipline of the Second and Third Respondents; apologies to be made; and reimbursement of all his costs associated with this matter.

[8] The Respondents deny the allegations of bullying and Optus maintains that Mr Richardson was subject of reasonable management action due to poor sales performance.

[9] After the application was made, a co-worker formally complained about Mr Richardson alleging both physical and verbal bullying in the workplace on "many occasions" which she had tried to overcome but was now "impacting (her) personal wellbeing" (Co-Worker's Complaint).[4]

[10] Since the initial conference before the Commission, the parties have consensually engaged in a process to allow Optus to investigate Mr Richardson's complaints subject of this application in accordance with its workplace policies. As part of the agreed process:

1. investigations have been conducted by separate investigators, solicitors external to Optus;

2. Optus paused the performance management process pending the outcome of the investigations; and

3. the hearing of the principal application is listed for 20 and 21 August 2019.

[11] On 25 June 2019, the outcomes of the investigations were communicated to Mr Richardson:

1. Mr Richardson's complaints were found to involve some inappropriate conduct however the allegations of bullying were not substantiated; and

2. The Co-Worker's Complaint was found to involve a substantiation of bullying in relation to some (not all) of the allegations (physical and verbal).

[12] Mr Richardson disputes the independence of the investigations and the findings. He invites the Commission to find that the Co-Worker's Complaint is a continuation of the bullying he has experienced, being a fabrication resulting from collusion on the part of the Respondents, which he says is ongoing.

[13] Optus maintains that the Co-Worker's Complaint is a separate issue and not linked to this application. Optus also seeks to separate a number of fresh complaints made by and against Mr Richardson in the period since 25 June 2019, involving a range of individuals not referred to above.

[14] The dispute between the parties escalated on 15 July 2019 when (upon return from 4 weeks' annual leave) the Applicant was stood down on full pay and invited to a meeting to discuss the outcomes of the investigation into the Co-Worker's Complaint.

[15] On 16 July 2019, Mr Richardson's lawyer (on his behalf) elected to correspond in writing rather than meet and that same day filed an application for a general protections dispute under s.372.

[16] On 18 July 2019, in lieu of the proposed meeting, Optus wrote to Mr Richardson about the seriousness of the outcome of the Co-Worker's Complaint, its preliminary view that Mr Richardson had engaged in misconduct and the potential for disciplinary consequences including termination of employment. Optus invited a response.

[17] On 23 July 2019, pending the final determination of this anti-bullying application, Mr Richardson applied for interim orders in the form extracted at paragraph [2] above.

[18] At a Mention on 24 July 2019, Optus agreed to also pause the disciplinary process in relation to the Co-Worker's Complaint pending this interim decision.

[19] Following the filing of submissions and evidence, a hearing was convened on 1 August 2019 in relation to the application for interim relief (Interim Hearing).

[20] On various occasions since the initial conference, the parties have attended before the Commission as presently constituted (for report backs and conferences, including in relation to the general protections application). The parties have either expressly requested or, despite invitations to do so, not at any stage objected to my continuing to deal with the matter.

[21] At the Interim Hearing, Optus sought an order for confidential evidence in connection with the Interim Hearing pursuant to s.594 of the Act. The Applicant opposed.

[22] The Interim Hearing was conducted in private pursuant to s.593(3), pending a determination of the application for confidential evidence.

[23] Having regard to the principles of open justice,[5] the views of the parties and the circumstances of this interim application, I consider it appropriate for names other than that of the Applicant and the Respondents to remain confidential, and to suppress all addresses. This decision is published accordingly.

[24] The well established principles applicable to interim relief applications, regularly applied by the Commission in this context, were explained by the High Court in Australian Broadcasting Corporation v O'Neill[6]:

1. There must be a serious question to be tried as to the applicant's entitlement to relief; and

2. The applicant is likely to suffer injury for which damages will not be an adequate remedy; and

3. The balance of convenience favours the granting of an interlocutory order.

[25] Distilled by Bromberg J in Quinn v Overland[7] into two main inquiries, incorporating the test of whether damages would be an adequate remedy into the wider test of balance of convenience, as follows:

In determining an application for interlocutory relief, the Court addresses two main inquiries. First, whether the applicant has made out a prima facie case in the sense that if the evidence remains as it is, there is a probability that at the trial of the action the applicant will be held entitled to relief. Second, whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted: Australian Broadcasting Corp v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [65], [19].

The requirement of a "prima facie case" does not mean that the applicant must show that it is more probable than not that the applicant will succeed at trial. It is sufficient that the applicant show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights the applicant asserts and the practical consequences likely to flow from the order the applicant seeks. In that context there is no objection to the use of the phrase "serious question" to convey the strength of the probability: Australian Broadcasting Corp v O'Neill per Gummow and Hayne JJ at [65]-[72], Gleeson CJ and Crennan J agreeing at [19].

[26] The Full Court in Samsung Electronics Co Limited v Apple Inc[8] relevantly cautioned against considering the two main inquiries in isolation:

When considering whether to grant an interlocutory injunction, the issue of whether the plaintiff has made out a prima facie case and whether the balance of convenience and justice favours the grant of an injunction are related inquiries. The apparent strength of the parties' substantive cases will often be an important consideration to be weighed in the balance.

[27] These considerations must be assessed having regard to the nature of the substantive application, the jurisdictional context in which the application is being considered and the circumstances of the parties.[9]

[28] In terms of the substantive anti-bullying application, once jurisdiction is established, there are two prerequisites before the Commission may make final orders. Section 789FF(b) of the Act requires the Commission to make findings that:

1. First, the applicant has been bullied at work by an individual or a group of individuals; and

2. Second, there is a risk that the applicant will continue to be bullied at work by the individual or group concerned.

[29] Importantly, the power of the Commission to grant an order is limited to preventing an employee from being bullied at work. The focus is on resolving the matter and enabling normal working relationships to resume. Where there is no risk that the applicant will continue to be bullied at work by the individuals an order to prevent the risk of future bullying can not issue. Further, the Commission can not order reinstatement or the payment of compensation or a pecuniary amount.[10]

[30] It is not contentious that Mr Richardson is a "worker", who works in a "constitutionally covered business", able to make an anti-bullying application under Part 6-4B of the Act.

[31] The bullying allegations which comprise the substantive application are made against two individuals (the Second and Third Respondents) and set out at paragraph [5] above. Although the original application was not amended to include additional allegations of bullying, it is plain that Mr Richardson intends to rely on the conduct since the application was filed to demonstrate a risk that the bullying will continue.[11]

[32] Optus denies each allegation and it appears arguable that some may be explicable as being reasonable management action.[12]

[33] Applying the above principles, and on the materials before the Commission, Mr Richardson has articulated the allegations consistent with the conduct that Part 6-4B of the Act is designed to remedy. Accordingly, I am prepared to accept that, at least on their face, the allegations of Mr Richardson raise a serious question to be tried.

[34] However, there appears to be no possibility of a risk of future bullying at work by the named individuals.

[35] Mr Richardson is not presently at work, being stood down pending the outcome of the disciplinary process arising from the Co-Worker's Complaint.

[36] If the outcome of that disciplinary process is that Mr Richardson's employment is terminated, as Mr Richardson apprehends and Optus says is lawfully available to it, then he will not be at work.

[37] Alternatively, if Mr Richardson's employment continues, then Optus submits that it would return him to work at another of its 34 retail stores, thereby ensuring that there would be no working relationship with the Second and Third Respondents.

[38] In the circumstances, I am not satisfied that sufficient likelihood of success exists in Mr Richardson's substantive application to justify the issue of interim orders.

[39] Interim orders of the kind sought here should not be issued lightly and the direct intervention of the Commission in these circumstances should be exercised with considerable caution. Indeed, it has been held that the Commission should be alert to the undesirability of permitting the anti-bullying jurisdiction to be used to circumvent reasonable disciplinary action and its consequences.[13]

[40] Mr Richardson has been advised of adverse findings in relation to his own conduct and that disciplinary consequences may follow. He has an opportunity to respond. Mr Richardson has to date chosen not to respond other than to seek Commission intervention including to return him to work in the same retail store, working with the Second and Third Respondents, and delay the outcome of an investigation into his own conduct. Mr Richardson's response to Optus's correspondence of 18 July 2019 may elicit further enquiries by Optus or assist in identifying suitable alternatives for continuing the employment relationship. In any event, Optus's consideration of his response is pending, the outcome of which is not known and should not be assumed.

[41] Optus submits it will suffer prejudice through orders which would unduly constrain it from determining what, if any, appropriate action should be taken against Mr Richardson in respect of serious findings of misconduct arising from an external investigation including that he "physically intimidated and elbowed a female colleague".[14]

[42] Whilst this application would not be heard on its merits or lead to any orders being made if Optus proceeds to terminate Mr Richardson's employment prior to the hearing on 20 August 2019, such is the nature of this jurisdiction. Its purpose being to facilitate safe working relationships and to stop bullying that is occurring at work. Indeed, and as both parties have acknowledged, if Mr Richardson's employment is terminated then other legal remedies may be pursued.

[43] The issuing of an interim order needs to be considered against the lawful rights of an employer becoming subservient to an anti-bullying application where such applications are made in an attempt to prevent, circumvent or frustrate an employer's rights.[15] An anti-bullying application is not a shield from disciplinary consequences in the event of any lawful findings of serious misconduct on the part of the applicant.

[44] Further, in weighing the balance of convenience, the weakness of the substantive application is relevant.

[45] In this case I am not satisfied that the balance of convenience favours an order being issued in the terms sought by Mr Richardson.

[46] Consideration of Mr Richardson's prima facie case and the balance of convenience must be assessed having regard to the nature of the bullying application. I consider the purpose of this interim order application is to preserve the right to advance the principal application by preventing Mr Richardson's termination of employment.

[47] For the above reasons I decline to grant the interim relief or interim orders sought.

[1] Application for Interim Orders dated 23 July 2019.

[4] First Respondent's Outline of Submissions Opposing the Grant of Interim Orders dated 31 July 2019 and Witness Statement filed on behalf of the First Respondent dated 31 July 2019.

[5] As relevant to this anti-bullying jurisdiction, see Amie Mac v Bank of Queensland Limited & Ors (2015) 247 IR 274; [2015] FWC 774 at [9].

[6] [2006] HCA 46; (2006) 227 CLR 57 (ABC).

[7] (2010) 199 IR 40; [2010] FCA 799 at [45]- [46].

[8] (2011) 217 FCR 238; (2011) 286 ALR 257; [2011] FCAFC 156 at [67].

[9] Kim Hodgkins [2019] FWC 3344 at [34]- [35].

[10] See Fair Work Amendment Bill 2013 Revised Explanatory Memorandum as cited in Lynette Bayly (2017) 263 IR 200; [2017] FWC 1886 (Bayly) at [24] and [26].

[11] For example, see Applicant's correspondence dated 1 May 2019 and Outline of Further Submissions dated 30 July 2019.

[12] Amie Mac v Bank of Queensland Limited & Ors (2015) 247 IR 274; [2015] FWC 774 at [95]; see also Ms SB [2014] FWC 2104 at [47]- [53].

[14] First Respondent's Outline of Submissions Opposing the Grant of Interim Orders dated31 July 2019.

[15] Ms Victoria Leeman [2019] FWC 2228 at [38].

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