Fair Work Act 2009

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

Application for an FWC order to stop bullying - applicant advised has resigned from employment with employer - prerequisites under s.789FF for making order not met -application has no reasonable prospects of success - application dismissed on Commission's own motion.

[1] Mr Vinay Michael made an application to the Fair Work Commission (Commission) for orders to cease bullying on 29 August 2017.

[2] Mr Michael was employed at Bendigo Kangan Institute (BKI). He taught in the ICT Department at the Melbourne campus. Mr Michael said that he was bullied by two of his supervisors and that the bullying took the form of:

1. Failure to pay extra teaching duty hours (ETDH);

3. Discrimination and isolation from departmental activities;

4. Harassment in a meeting with the named employees;

8. Victimisation and changing decision on reduced hours;

9. Allocating subjects to less qualified teachers.

[3] Each of Mr Michael's supervisors had worked at BKI for in excess of 15 years although his direct supervisor had only recently been appointed to her role.

[4] On 6 October 2017 I issued an interim Order which required that, until the application was finalised, Mr Michael and the named persons not have contact with each other apart from incidental contact. That Order remains in place.

[5] Mr Michael's application was heard before me on 30 November 2017. Whilst all of the evidence was given on that day final submissions were not made. Directions were therefore issued to the parties as follows:

1. Mr Vinay Michael (Applicant) is required to file with the Fair Work Commission (Commission) and serve on Bendigo Kangan Institute (Respondent) and the named persons final submissions by 4.00 pm Friday 22 December 2017.

2. The Applicant's submissions should address how, on the basis of the evidence (as provided in transcript and the documents provided by the parties) the Commission can be satisfied that he was bullied at work and how the Commission can be satisfied that he will continue to be bullied at work. He is also required to include in his submissions the orders he wishes to have the Commission issue in accordance with s.789FF of the Fair Work Act 2009.

3. The Respondent and named persons are required to file with the Commission and serve on the Applicant any final submissions by 4.00 pm Wednesday 17 January 2018.

4. The Applicant is required to file with the Commission and serve on the Respondent and named persons submissions in reply by 4.00pm Wednesday 24 January 2018.

[6] Mr Michael and BKI both complied with the directions issued in that each met the timeframe established. Mr Michael, however, did not specify the specific form of the orders he wished the Commission to make if his application was successful. I accept however that he would seek an order in the form of the interim Order that also set out specific reporting lines for him that did not involve the named individuals.

[7] In Mr Michael's application for orders to stop bullying he indicated that the relief he sought (at that time) was "I can't work under them anymore. Either party needs to be separated." In his evidence at the hearing of his application he sought orders that he not be required to work with either of the named persons again, that is, that his work reporting arrangements be altered.

[8] In his reply submissions filed on 24 January 2018 Mr Michael said:

Please find the reply in Red color and the submission files.

But I need to get the outcome of this matter, as I lost lot of my leaves/health/other things due to this bullying.

I wanted to get those reinstated, as this can be carried over to the new company.

Kindly let me know if you need any clarifications on the submissions.

[9] Mr Michael attached his final submissions in reply in accordance with the directions.

[10] As a result of receiving this advice from Mr Michael I issued a statement and further directions to the parties on 24 January 2018 in the following terms:

[7] The Commissioner is considering dismissing Mr Michael's application on her own initiative because it has no reasonable prospect of success because there is no risk that Mr Michael will continue to be bullied at work (BKI) by the individuals named in his application as he is resigning his employment with effect from 23 February 2018 (and hence one of the pre-requisites for making an order cannot be met).

[8] The Commissioner therefore seeks submissions from the parties as to why she should not dismiss the application of Mr Michael:

1. Mr Michael is to file with the Commission and serve on BKI any submissions he wishes to make as to why his application should not be dismissed for this reason by 4.00pm Friday 2 February 2018.

2. BKI is to file with the Commission and serve on Mr Michael any submissions it wishes to make on this matter by 4.00pm Wednesday 7 February 2017.

[11] I decided to issue these directions because of the effect of the provisions of the FW Act that deal with application for orders to stop bullying.

[12] Section 789FC of the Fair Work Act 2009 (FW Act) provides as follows:

789FC Application for an FWC order to stop bullying

(1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.

(2) For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force.

Note: Broadly, for the purposes of the Work Health and Safety Act 2011, a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.

(3) The application must be accompanied by any fee prescribed by the regulations.

(a) a fee for making an application to the FWC under this section; and

(c) the circumstances in which all or part of the fee may be waived or refunded.

[13] Section 789FD of the FW Act defines bullying conduct as follows:

(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.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.

(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:

(iv) a body corporate incorporated in a Territory; or

(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;

then the business or undertaking is a constitutionally-covered business.

[14] The capacity of the Commission to make orders is set out in s.789FF of the FW Act as follows:

(a) a worker has made an application under section 789FC; and

(i) the worker has been bullied at work by an individual or a group of individuals; and

(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;

then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.

[15] That is, the Commission may issue orders to stop bullying only in circumstances where there is a risk that a worker who has been bullied at work is at risk that they will continue to be bullied at work. As Mr Michael had resigned his employment I was concerned that he could not, under any circumstance, meet the requirements of s.789FF(b)(ii) such that the Commission's jurisdiction might be enlivened.

[16] In response to the 24 January 2017 directions the Commission received submissions from both Mr Michael and BKI.

[17] Mr Michael asked that findings be made with respect to his claim that he was bullied. He restated that he had lost a "lot" of leave due to the bullying and that BKI management have refused to reinstate the leave whilst the matter was still under investigation. He said that if the Commission should find that bullying occurred he believed management would reinstate his leave "which may be carried over to the new company".

[18] Mr Michael did not provide any documentary evidence that he had lost a "lot" of leave, what type of leave he referred to and on what grounds that leave might carry over to his new employer, although it may be inferred from his evidence that he was referring to sick leave he has taken.

[19] Mr Michael also claimed that one of the named employees edited his PACE ("performance and career enhancement" plan) by adding "bad remarks" without his knowledge and that this may impact on his future career. Again Mr Michael failed to articulate how such an impact might be felt. Issues in relation to his PACE were subject to evidence in the hearing of his application.

[20] Mr Michael, in his reply submission on the question of whether his application should be dismissed, suggested that his case was not unlike that of the recently resigned Lord Mayor of Melbourne where, he said, the complainants were given the findings of the investigation. He said if the findings of the Commission are made it will give "motivation and courage" to others bullied by the employees he named to come forward.

[21] BKI supported the dismissal of Mr Michael's application. It said that an interim order issued by the Commission will remain in force such that, during the notice period of his resignation, Mr Michael will not be subject to any direction or control by the named employees. Therefore, it said, there is no risk that Mr Michael will be bullied at work for the remainder of his employment.

[22] In G.C.[1] Commissioner Hampton considered an application for an order to stop bullying in circumstances where the Applicant had been dismissed. He made the following observations in relation to a risk of further bullying and the capacity of the Commission to make an order in such circumstances:

[165] In Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank and Another (Shaw v ANZ), Gostencnik DP was dealing with an anti-bullying application where an applicant, Ms Shaw, had been dismissed by the employer. The Deputy President 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."

[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.

[167] In this case, there is no suggestion that continuing risk of bullying at work will relevantly arise in the absence of an ongoing employment relationship between the parties. That is, there is no basis, in the absence of a continuing employment relationship between the parties, for the applicant to be in the relevant workplace as a worker. As I am not satisfied that there is any such future risk, even if I had concluded that bullying behaviour had occurred within the statutory meaning, there is no basis under the Act to issue any orders arising from this particular application.

[23] In the matter before me the applicant, Mr Michael, has resigned. The analysis of the decision of Commissioner Hampton however remains apposite in a case such as this. The matter to be determined is if, as a worker, Mr Michael will continue to be bullied at work by the individuals found to have bullied him.

[24] Mr Michael resigned his employment with BKI. He will no longer work with the individuals named in his application and there is no prospect he will work with them again. This matter is not intertwined with an unfair dismissal application where the outcome of that application may result in the applicant being reinstated into the workplace.

[25] For these reasons and in the absence of any ongoing employment relationship between Mr Michael and BKI there is no risk of Mr Michael being bullied at work (that is, BKI) in the future. Even if I had concluded that Mr Michael had been bullied at work in the past he will not bullied at work in the future. The jurisdictional prerequisite for making an order is therefore not met and an order to stop bullying cannot be made.

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

[27] In this matter I have considered an application to dismiss the application for orders to stop bullying on my own motion following Mr Michael's advice that he has resigned his employment. I have sought submissions because, given the provisions of s.789FF, it may be that the application has no reasonable prospects of success.

[28] I agree that a consideration of an application (even one on the Commission's own motion) pursuant to s.587 must be considered within context of the substantive matter before the Commission. In this case I am not convinced that, in circumstances where there is not any possibility that Mr Michael is likely to continue to be bullied at work, that his application has any reasonable prospect of success.

[29] Mr Michael is a worker for the purposes of s.789FC of the FW Act working in a constitutionally-covered business. His application for orders to stop bullying was properly made by him.

[30] Mr Michael will soon be no longer employed by BKI (his notice period ends on 23 February 2018). For this reason it is not possible to find that there is a risk that he will continue to be bullied at work. Where the statutory prerequisite for making an order to stop bullying has not been, and cannot be, met I must conclude that the application of Mr Michael for orders to stop bullying has no reasonable prospect of success.

[31] In circumstances where there are no related applications such that Mr Michael might return to work for BKI, I do not think it to be of any utility to deal further with the application of Mr Michael. Whilst it might be possible to make some observations with respect to the circumstances that led Mr Michael to take sick leave and to the changes he says were improperly made to his PACE, such observations alone, without a consideration of all of the matters of which Mr Michael complains, might lead the parties involved in this application and a casual reader to draw inappropriate conclusions as to whether or not Mr Michael had been bullied at work. This would be unfair to Mr Michael, the named individuals in his application and BKI.

[32] While I appreciate that Mr Michael wants to have access to findings of the "investigation" (of the Commission) my powers are limited to that given by the FW Act. I am not empowered, in this case, to undertake a broad ranging inquiry and make findings unless they are directed to the specific statutory purpose. Where findings are for some other purpose they may well exceed jurisdiction. I do note however that BKI has conducted an internal investigation of Mr Michael's complaints and he has access to the findings of that investigation. Mr Michael is not satisfied with those and it is for this reason I conclude that he wants some findings from the Commission. I decline to do so.

[33] As Mr Michael is soon to leave his employment there is no reasonable prospect that his application for orders to stop bullying directed at the named individuals has any reasonable prospect of success. For this reason, pursuant to s.587(1)(c) of the FW Act, his application must be dismissed.

[34] An order[2] to this effect will be issued with this decision.

[1] [2014] FWC 6988.

[2] PR600476.

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