Angus Booth v Lea Lamberg, Southern Cross Centre
[2025] FWC 13
•2 JANUARY 2025
| [2025] FWC 13 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Angus Booth
v
Lea Lamberg, Southern Cross Centre
(AB2024/898)
| DEPUTY PRESIDENT O’KEEFFE | PERTH, 2 JANUARY 2025 |
Application made in circumstances where applicant no longer a worker – no risk of bullying continuing - application dismissed pursuant to s.587 of the Act.
On 20 November 2024 Mr Angus Booth applied to the Fair Work Commission (FWC) seeking an anti-bullying order against the Southern Cross Centre (SCC). On 28 November 2024 Mr Booth had a telephone conversation with a member of the FWC Registry who alerted him to the potential jurisdictional issues with his application. On 4 December 2024 the SSC made a response to Mr Booth’s application and raised a jurisdictional application that Mr Booth was not a worker as defined for the purposes of an anti-bullying application.
On 10 December 2024 the matter was allocated to my Chambers. Having perused the application and the response from the SSC I had serious concerns about whether the FWC had jurisdiction to deal with the application. Given these concerns, I caused my Chambers to email Mr Booth as follows:
“Dear Mr Booth,
Your application AB2024/898 has been allocated to Deputy President O'Keeffe. The Deputy President has examined your Form F72 and the Respondent's Form F73. He notes both parties - you at question 9 of the F72 and the Respondent at questions 6 and 9 of the F73 - confirm that you are no longer employed or engaged at the workplace where the alleged bullying took place. It is well settled that the FWC cannot deal with bullying complaints made by former employees. Essentially this is because a pre-requisite condition for the making of an anti-bullying order - being the order for which you have applied - is that there is a risk that the person may continue to be bullied at work.
The usual precedent case cited in such instances is the decision of Deputy President Gostencnik in Shaw vs ANZ Banking Group Ltd [2014] FWC 3408 at [16] where the Deputy President stated as follows:
"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."
It appears from your information that you believe that you were unfairly removed from the workplace on 3 July 2024 via a letter from the Respondent. You will note that this is similar to the situation in which Mr Shaw found himself. Nevertheless, because he was not at work, there was no risk of bullying continuing and so the Deputy President declined to make an order.
I note also in this case there may be some issue as to whether the Respondent is a constitutionally covered business - being a further pre-requisite for the FWC dealing with a bullying complaint. It appears that the Respondent may be a not-for-profit charitable / religious organisation and not a trading corporation. If this is the case, the FWC has no jurisdiction. Finally, there may be some question as to your status as a volunteer - particularly with respect to the extent of your volunteer activities and whether you were a volunteer at the time of the alleged bullying or instead simply an attendee.
Given these issues, the Deputy President cannot see how your claim can be progressed. If you disagree and believe that the FWC does have jurisdiction to deal with your claim, you should provide written submissions setting out how this is the case, particularly in light of the observations above. The Respondent will then be provided with an opportunity to respond in writing to those submissions.
If you do not wish to continue with your claim, you can email Chambers and simply state that you wish to withdraw. In either case, you should advise Chambers of your intentions by no later than 4.00pm (AWST) Friday 13th December 2024.”
On 12 December 2024 Mr Booth left a voice message with my Chambers, querying the status of his claim. In response, my Chambers sent the following email:
“Dear Mr Booth,
Chambers acknowledges receipt of your phone message requesting a call from chambers to discuss the above matter.
Communications between the Commission and parties must always be open and transparent. As such, chambers requires correspondence from parties to be sent by email and copied to the other party. Chambers will not call parties or take calls from parties, other than in urgent circumstances (such as to notify parties that a listing has been cancelled with short notice). Please see the fair hearings practice note for further information, at [30-33].
Chambers notes that in your message you requested an update as to where the matter had progressed to. Please refer to the below email sent to parties on Wednesday 11 December 2024.”
The email set out at paragraph 2 above was appended to this email.
By 20 December 2024 no response had been received from Mr Booth. Given this, the following email was sent to parties:
“Dear Mr Booth,
I refer you to previous emails from Chambers sent on 11th December 2024 and 12th December 2024. Deputy President O'Keeffe had asked you to provide advice as to how you wished to proceed with your application in light of his observations regarding its prospects of success. Such advice was to be provided by Friday 13th December.
It is now one week after that date and no correspondence has been received from you. As such, you are advised that it is Deputy President O'Keeffe's intention to dismiss your application on the grounds that it has no reasonable prospects of success. If you object to such dismissal you must advise Chambers by no later than 12 noon (AWST) Monday 23rd December 2024. If no contact is received from you the dismissal will proceed without any further opportunity for you to make submissions.”
Later that day Mr Booth responded as follows:
“Thanks for writing with this case. To recap, I sent through my response, dated 6th December, to the F73 employer/principal response. Did Kierohn Sims receive that?
I have not heard back from them (the Elders) regarding any alleged incidents warranting the 3rd July 2024 letter.I called the FWC by phone on Thursday 12th December to check on progress of the case.
I am sorry, I never received any previous e-mails from Chambers on 11th and 12th December. I checked my junk mail and could not find anything there.
As for how I would like to proceed with my application:I would like the 3rd July 2024 letter to be revoked, in writing from Kierohn Sims. I am free to attend a local church of my choosing and without harassment from incidents
that haven't been talked about before the Elders and myself at Southern Cross Centre/Covenant Life Church.”
As it was clear that Mr Booth had not responded to the issues I had raised, and that he was seeking outcomes beyond the scope of an anti-bullying order, I caused the following email to be sent to him later in the day on 20 December 2024:
“Dear Mr Booth,
As you have suggested that you did not receive our previous emails, the email dated 11th December 2024 is repeated here for your benefit:
“Dear Mr Booth,
Your application AB2024/898 has been allocated to Deputy President O'Keeffe. The Deputy President has examined your Form F72 and the Respondent’s Form F73. He notes both parties – you at question 9 of the F72 and the Respondent at questions 6 and 9 of the F73 – confirm that you are no longer employed or engaged at the workplace where the alleged bullying took place. It is well settled that the FWC cannot deal with bullying complaints made by former employees. Essentially this is because a pre-requisite condition for the making of an anti-bullying order – being the order for which you have applied – is that there is a risk that the person may continue to be bullied at work. The usual precedent case cited in such instances is the decision of Deputy President Gostencnik in Shaw vs ANZ Banking Group Ltd [2014] FWC 3408 at [16] where the Deputy President stated as follows:
“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.”
It appears from your information that you believe that you were unfairly removed from the workplace on 3 July 2024 via a letter from the Respondent. You will note that this is similar to the situation in which Mr Shaw found himself. Nevertheless, because he was not at work, there was no risk of bullying continuing and so the Deputy President declined to make an order.
I note also in this case there may be some issue as to whether the Respondent is a constitutionally covered business – being a further pre-requisite for the FWC dealing with a bullying complaint. It appears that the Respondent may be a not-for-profit charitable / religious organisation and not a trading corporation. If this is the case, the FWC has no jurisdiction. Finally, there may be some question as to your status as a volunteer – particularly with respect to the extent of your volunteer activities and whether you were a volunteer at the time of the alleged bullying or instead simply an attendee.
Given these issues, the Deputy President cannot see how your claim can be progressed. If you disagree and believe that the FWC does have jurisdiction to deal with your claim, you should provide written submissions setting out how this is the case, particularly in light of the observations above. The Respondent will then be provided with an opportunity to respond in writing to those submissions. If you do not wish to continue with your claim, you can email Chambers and simply state that you wish to withdraw.
In either case, you should advise Chambers of your intentions by no later than 4.00pm (AWST) Friday 13th December 2024.
Deputy President O'Keeffe advises that you need to consider the concerns outlined in the above email and make a response by 4.00pm (AWST) Monday 23rd December. The Deputy President also notes that you are seeking an outcome as follows:
“I would like the 3rd July 2024 letter to be revoked, in writing from Kierohn Sims. I am free to attend a local church of my choosing and without harassment from incidents that haven't been talked about before the Elders and myself at Southern Cross Centre/Covenant Life Church.”
It is very difficult to see how such an outcome could possibly be within the jurisdiction of the Fair Work Commission to grant – particularly in light of the fact that the only
order available to be made based on your application is that bullying cease. Access to the church and its services for parishioners does not fall within the remit of the Fair Work Commission. Pursuant to your application, we can only make an order that bullying cease – and then only if:
1. the church falls within the scope of the Fair Work Act (which is highly unlikely); and
2. you can establish that in your status as volunteer you fell within the coverage of the Fair Work Act; and
3. you can establish that there is a risk you will continue to be bullied at the workplace - which is also highly unlikely given that you are no longer attending the workplace.
Given the resources of the Commission that have already been allocated to this matter, Deputy President O'Keeffe urges that you properly consider the merit of continuing with your application.
In any case, you need to consider the email dated 11th December 2024 as shown above and make a response to that email by no later than 4.00pm (AWST) Monday 23rd December 2024. If you do not respond, you are advised that your application will be dismissed on the basis that it has no reasonable prospects of success.”
Once again on 20 December Mr Booth responded, as follows:
“Thankyou for the response. Firstly, I have not heard from Kierohn Sims regarding this case.
Secondly, if there are any incidents of concern not related to this case (Form 73 Question 6), now is the time to state their case.
A refusal to respond to that is an admission of the 3rd July 2024 letter as fraud, on Kierohn Sim's account.
Finally, regarding Church membership, I am a valued member of the global Christian Church community who confess faith in Jesus Christ. As for local Church involvement, I am free to go where I am needed.
I wish you all a safe and prosperous New Year.
Thanks for listening.”
Given this response, I caused the following email to be sent later in the day on 20 December 2024:
“Dear Mr Booth,
Deputy President O'Keeffe notes your most recent email, sent at 1.20pm on Friday 20th December. If this is your response to the Deputy President’s concerns, then he advises that he will be dismissing your application.
However, as you were advised that you had until 4.00pm (AWST) on Monday 23rd December 2024 to make a proper response to the concerns raised, the Deputy President will honour that timeframe. Once again, you are advised that if you do not respond, or if your response does not address the concerns raised, your application will be dismissed.”
On 21 December Mr Booth sent a response to Chambers. In that response, he stated as follows:
“Thank you for the kind response. If you would convey to Deputy President O'Keeffe my thanks in helping this application to the desired outcome.
Put simply, I am just a baker who wants his job back, and being an un-bloody-vaccinated human with Covid jabs! Please excuse my French for now.
I have attached my second and expanded response to the F73 form of the employer/principal. I trust that will escalate this swiftly to a resolution.”
Attached to the email were further submissions. With respect to the issue of the status of SSC as a constitutionally covered business, Mr Booth stated as follows:
“Southern Cross Centre Inc. as noted in the Southern Cross Centre Constitution as a business structure is also a non-for-profit charitable organization and is subject to the Fair Work Act 2009 regulations and Work Health and Safety Act 2020 regulations and principles of Safe Work Australia’s Work-related psychological health and safety national guidance material. This is evidenced also in Southern Cross Centre’s Safe Ministry Check Policies for which all Volunteers, Staff, Elders and Pastoral Care team members must pass the required awareness course training modules.”
With respect to the issue of being a worker as defined for the purposes of an anti-bullying order, Mr Booth stated as follows:
“Firstly, the question of whether I was an “attendee” around the time of the incident of bullying with the evangelism event or as the Church Southern Cross Centre has called a “volunteer”, and thus a worker under the Fair Work Act 2009, is besides the point. The fact is, to minimize a worker’s contribution is akin to an insult.”
With respect to his attendance or otherwise at the workplace, Mr Booth stated as follows:
“Secondly, question 6 of “Is the applicant still employed, engaged or otherwise connected to the place where the alleged bullying took place?”
Answered “No” by respondent and withdrawal of membership on 3rd July due to incidents not related to the accusation made in this case.I ask that if Olivia Hilton and Abby Lamberg, both known team members of the Southern Cross Centre worship team, have any complaint related to my membership withdrawal then they should need speak up now about that, as I am not aware of any behaviour of my own that is unduly problematic according to either the Southern Cross Centre member’s handbook or Worship Team Ministry handbook. I ask them how these “incidents” warranted a membership withdrawal after serving at Churchlands and Southern Cross Centre for over 3 times the length of their own time. Maybe you might want to consider that before writing a response. Or has Fred Boshart spoken for you?
Secondly, when they give account (Olivia and Abby), I ask if they would do so knowing that the person they are speaking to is over 50 years old, male, and to be speaking frankly, any younger person by under 30 plus years to a senior leader ought to show the due respect towards them just on age alone! (Not just Life Experience!)
With this, I also want to thank Rinna Bowyer, the previous worship Pastor for teaching the Youth and Young Adults to respect their older Church members just as she has done!
And lastly, since Kierohn Sims has been trained in New Zealand as a Church Youth Pastor, I would expect that these matters are not treated lightly, or perhaps he might want to “fire” the whole Church congregation and tell them to leave!
My understanding is that the evangelism incident was the main “hinge point” for the 3rd July 2024 letter from the Elders, the incidents not related to the accusation were just an excuse.
John McElroy, the former Lead Pastor felt threatened about my knowledge and understanding of the W.A. State and Federal Government Covid Fraud with the Covid Jab injuries (“vaccines” mandated) that have been documented or evidence of deaths due to the jabs covered up. John didn’t want to talk about it with me because he wanted to be “top dog” (And also jabbed himself), and so persuaded Kierohn Sims to remove me from further group Whatsaap chat-site membership (Both Men’s group and Evangelism group). Since the main body of the Southern Cross Centre fellowship members believed the general Government narrative regarding Covid jabs, they conspired in a meeting together with Kierohn to withdraw my membership, and without discussion with me, as apparently my desire to help educate and warn fellow Church members of unwarranted risks to their own and other’s health was divisive!
To be honest, and I’ll finish saying that people like Mr Julian Gillespie, retired lawyer and former barrister who has fought well against the covid vaccination in managing proceedings in the Federal Court of Australia, he along with many others, deserve the kudos in showing that toughness and resilience in standing up for what is right…that gumption of Aussie spirit that will stand up for your mates when it all goes “up the creek”. A Royal Commission into Australia’s response to Covid needs to happen for justice to be fulfilled. No doubt a Queensland Doctor, Dr William Bay and his exoneration, winning back his right to practice medicine, has won a battle for all who value integrity, justice, due process in ethical business practices and freedom of speech in a democratic society.
Thanks for listening and I expect all those who need to respond to this response of mine should have the opportunity to do so, including Olivia Hilton and Abby Lamberg. Our young ones are our future and they need all the support we can give in helping them towards a better, healthier future which encourages open discussion and engagement without fear of reprisal for interrogatory intrigue!
In good faith”
Having read these submissions it seemed to me that Mr Booth either did not understand or did not care to understand the points I had been trying to make to him. Given this, on 23 December 2024 I sent him an email in which I outlined:
a)Why SSC is not a constitutionally covered business, explaining why it was not a trading corporation and the issues surrounding ss.30D and 30N of the Fair Work Act and Western Australia not having referred powers.
b)Why the issue of his status as a volunteer was important to establish whether he was a worker as defined in the Work Health and Safety Act 2011 and some illustrative examples of persons who are not workers as defined.
c)The effect of the decision by Deputy President Gostencnik in Shaw and how it applied to his situation.
In that email I also advised that I would be dismissing his application.
Section 587(1)(c) gives the FWC the power to dismiss applications that have no reasonable prospects of success and s.587(3)(a) confirms that this power may be exercised by the FWC on its own initiative. In this matter, I am satisfied that the Respondent is not a constitutionally covered business and that in any case, Mr Booth no longer attends the workplace. Given this, his application has no reasonable prospects of success and will be dismissed. An order dismissing the application will issue.
DEPUTY PRESIDENT
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