Anthony Duncan

[2018] FWC 6145

[2018] FWC 6145

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Anthony Duncan
(AB2018/542)

COMMISSIONER HAMPTON ADELAIDE, 8 OCTOBER 2018

Application for an FWC order to stop bullying – applicant dismissed prior to making application – whether future risk of bullying conduct – whether reasonable prospects of success – no future risk – application dismissed as a matter of discretion.

[1] On 4 September 2018, Mr Anthony Duncan (the applicant) made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the Act).

[2] The application was listed for a telephone conference before this arm of the Commission on 19 September 2018. Despite proper notice of the conference to all parties, there was no participation by Mr Duncan or anyone on his behalf and the Commission was unable to make contact with him via telephone.

[3] It became apparent during the course of the conference that Mr Duncan had been terminated from his employment on 31 August 2018; however, it appeared, at that stage, that he had not taken any steps to challenge the termination.

[4] The applicant’s employer, Agbulk Transport Pty Ltd, participated in the conference and made a verbal application 1 to have the stop-bullying application dismissed on the basis that:

•  Mr Duncan was not, at the time of bringing the application, a worker and was therefore not eligible to bring the s.789FC application (not a worker at the time of application); and

•  There is no risk of bullying in the future because the applicant is no longer in the workplace (no future risk).

[5] These two jurisdictional matters were earlier outlined in the employer’s response to the stop-bullying application. For reasons that will become clear I have only dealt with the no future risk jurisdictional matter.

[6] On 20 September 2018, Mr Duncan contacted the Commission to advise that he wished to continue with his stop-bullying application notwithstanding the termination of his employment and was still considering his options in relation to challenging the termination.

[7] Correspondence from the Commission was sent to the applicant (and the other parties) on 21 September 2018, setting out the events to date, the basis of the no future risk jurisdictional matter, and some information resources about the issue. Directions were also issued requiring Mr Duncan to provide the following:

“1. A written explanation of the basis upon which you contend that there would be a genuine risk of future bullying to you as a worker involving Mr B (the person named in the application) at your former workplace. Alternatively, if you contend that there is some other basis upon which the Commission can continue to hear and determine your anti-bullying application, you should set this out.

2. Any response is to be provided to the Commission and the respondent parties (Ms K and Mr B) by Tuesday 2 October 2018.”

[8] Further, Mr Duncan was advised that should he fail to respond to the correspondence, his matter would be determined on the information and materials before the Commission without further notice or hearing.

[9] Despite Mr Duncan subsequently confirming that he had received the original correspondence, he did not provide any response to the Commission that engaged with the actual jurisdictional issue. In this regard, I note that the some email attachments referred to in the 21 September 2018 correspondence were separately supplied to Mr Duncan on 3 October 2018. Mr Duncan did however confirm that he did not intend to discontinue his stop-bullying application but had lodged a general protections application 2 contesting his dismissal.3 He also subsequently confirmed his desire for the Commission to make a decision about this matter.4

[10] As a result of the above events, I have dealt with the matter based upon the information and materials now before the Commission.

[11] It is common ground that Mr Duncan’s employment had been terminated prior to lodging his stop-bullying application.

[12] The no future risk issue arises from s.789FF of the Act, which is relevantly in the following terms:

“789FF FWC may make orders to stop bullying

(1) If:

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

(b) the FWC is satisfied that:

(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

(d) any matters that the FWC considers relevant.”

[13] The operation of this provision in circumstances where an applicant worker is no longer engaged in the workplace has been considered in a number of decisions of the Commission. In G.C.⁵, I referred to a leading case and 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.” (original emphasis retained)

[14] In Obatoki⁶ the Full Bench was dealing with an application where the applicant worker was no longer in the relevant employment relationship and the stop-bullying application had been dismissed by the Commission. The Full Bench concluded as follows:

“[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.”

[15] This approach, and the discretion that exists for the Commission to dismiss the stop-bullying application where appropriate, was also subsequently confirmed by another Full Bench in Atkinson v Kilarney Properties Pty Ltd. 7

[16] What is evident from the terms of the Act when applied in this case, is that the future risk must pertain to likelihood of future unreasonable conduct that might be directed towards Mr Duncan in his capacity as a worker attending work along with the individual named in the application. The focus of the legislation and the prerequisites for the making of any order are specific and relatively narrow in that respect.

[17] Mr Duncan is no longer an employee and he has not provided any basis to the Commission which would indicate that there is a prospect of him returning to the workplace or any other basis where a future risk within the meaning of s.789FF(1)(b)(ii) of the Act could arise. In this respect I do note the recent advice that a general protections application has been lodged; however, it is not clear what remedy is being sought by Mr Duncan. I will return to this aspect shortly.

[18] Section 587(1) of the Act provides:

“587 Dismissing applications

(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

(b) the application is frivolous or vexatious; or

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

[19] In considering all of the circumstances of this matter based upon the materials that are before the Commission, I am satisfied that the stop-bullying application has no reasonable prospects of success. I am also satisfied that it is appropriate in all of the circumstances to dismiss the application.

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

[21] I emphasise that this decision does not deal with the merit or otherwise of the original basis of the stop-bullying application or the general protections application. Neither has been heard or considered by the Commission. I also note that should Mr Duncan subsequently successfully challenge his dismissal leading to reinstatement, or otherwise return to the workplace as a worker, and be subject to the risk of bullying conduct, a fresh stop-bullying application could be made by him.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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 1   In the circumstances I waived compliance with the Fair Work Commission Rules 2013.

 2   Presumably under s.365 of the Act.

 3   By email on 4 October 2018.

 4   By email dated 6 October 2018.

5 [2014] FWC 6988.

6 Olusegun Victor Obatoki [2014] FWC 8828.

 7   [2015] FWCFB 6503.