Application by E.K

[2017] FWC 2822

[2017] FWC 2822

FAIR WORK COMMISSION

DECISION

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

Application by E.K
(AB2017/135)

COMMISSIONER SIMPSON BRISBANE, 25 MAY 2017

Application for FWC order to stop bullying - section 587(1) application to dismiss – contested facts – application dismissed.

[1] This matter involves an application brought under s.789FC of the Fair Work Act 2009 (the Act) by EK (the Applicant) against two named persons VH and VD (named persons) who are alleged to have bullied her at work. The employer of both the Applicant and the two named persons is UC. UC has advised that it is representing itself and the two named persons in the matter.

[2] The matter was filed on 13 March 2017 and was the subject of a private conference on 19 April 2017. A proposal was discussed in the course of the conference to resolve the matter and at the conclusion of the conference the Applicant undertook to advise after a period of consideration whether she accepted the proposal to resolve the matter or not. On 24 April the Applicant advised that she did not wish to accept the proposal and that she wished to continue with her application. On the same day the UC sent correspondence to my chambers seeking that the application be dismissed under section 587(1) of the Act.

[3] I listed the matter for mention on 8 May 2017 and directed that the parties file submissions to address the application under s.587.

[4]  Section 587(1) of the Act states:

“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.”

UC’s submission

[5] UC noted dictionary definitions of the expressions ‘frivolous” and “vexatious”. UC submitted its application was based on the continual raising and repetition of matters over several years by the Applicant as set out in its response to the application. UC referred to a decision in Keddie & Ors v Stacks/Goudkamp Pty Ltd [2012] NSWCA 254 where the Court determined the phrase “without reasonable prospects of success” means “not fairly arguable”.

[6] UC submitted it had included in its Form F73 response to the application that the alleged bullying was reasonable management action, carried out in a reasonable manner by the two named persons.

[7] UC submitted that they had demonstrated through documented evidence that on each and every occasion where the Applicant had made allegations, that the Applicant had been afforded natural justice and a fair investigation.

[8] UC submitted that the Applicant had raised the same allegations repeatedly, demonstrating the frivolous and vexatious nature of her application. It was also said by UC that the outcome of its multiple investigations should substantiate its application that the matter has no reasonable prospect of success.

[9] UC submitted that for almost three years the Applicant has suggested that she has other witnesses to her allegations, however the names she has previously provided do not support her account of events but rather attest to her own behaviour as angry, aggressive and threatening toward VH and others.

[10] It is said that allegations of bullying more often than not coincide with interventions by management regarding the Applicant’s performance. UC also relies on WorkCover having rejected the Applicant’s claims.

Applicant’s submission

[11] The Applicant submitted that she has never been provided with any documentation from the investigations referred to by UC, such as transcripts of interviews or their dates, times or names (of those interviewed).

[12] The Applicant asserts she has suffered psychological injuries as a result of multiple bullying encounters and has been required to consult her doctor after every incident. The Applicant went into some detail concerning alleged incidents in her submission.

[13] Without detailing the specifics of the submission, the Applicant challenged both the manner and findings of investigations into her allegations and claimed they were “flawed” and “inadequate”. The Applicant names fellow employees who she asserts were not interviewed. The Applicant submitted her most recent WorkCover claim is under review.

Consideration

[14] UC attached a range of documents to its Form F73 response to the application, including its findings contained in a letter dated 16 February 2015 in response to earlier allegations made by the Applicant, and further findings contained in a letter dated 27 January 2017 about further allegations. The material also includes correspondence pertaining to a disciplinary process concerning allegations made against the Applicant.

[15] A Full Bench in the matter of Brent Gorman v Australia Post 1said as follows in regard the meaning of the words “frivolous and vexatious”.

“[11] The meaning of the words “frivolous or vexatious” in the context of the Order 26, rule 18 of the High Court Rules was considered by Barwick C.J. in General Steel Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, at 129 as follows:

‘The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".

At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance".’ (at 129)

[12] Although this passage and other cases to which we were referred (see Naqvi v MPB (SA) Pty Ltd (1981) 36 ALR 379, at 383 and Heidt v Chrysler Australia Ltd (1976) 13 ALR 365) relate to court proceedings, they provide an indication of the type and nature of an application that might be found to fall within the meaning of the words ‘frivolous or vexatious’. Those words convey an intention that the power to dismiss an application and to thereby deprive an applicant of the right to pursue an otherwise available cause of action should only be used in limited circumstances.”

[16] Whilst it is true that UC provided material setting out the history of why it has previously rejected the Applicant’s claims that are now the subject of this application with its Form F73, the matter involves contested facts about the nature of exchanges that have occurred. Because factual contests exist the material provided is not sufficient for me to be satisfied that the Applicant’s case is "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; or "so manifestly faulty that it does not admit of argument".

[17] UC has also submitted it was open to the Commission to find that the application could be dismissed on the basis of s.587(1)(c) of the Act in that it had “no reasonable prospects of success.”

[18] In T. Wright and Australian Customs Service 2 a Full Bench of the AIRC said as follows:

“[32] We reiterate that, in our view, in considering whether the requisite conclusion should be drawn, the Commission should proceed with exceptional caution and only draw that conclusion where, on all the materials before the member, the substantive application is manifestly untenable or groundless. Where, on those materials, there is a real issue of fact to be determined and that issue is relevant to the resolution of the substantive application, it would be unlikely that a conclusion could be formed that the application has ‘no reasonable prospect of success at arbitration’.”

[19] Section 789FD of the Act provides the following definition of bullying;

“When is a worker bullied at work?

(1) A worker is bullied at work if:

(a)  while the worker is at work in a constitutionally-covered business:
(i)  an individual; or
(ii)  a group of individuals;

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:

(a) the person is:
(i)  a constitutional corporation; or
(ii)  the Commonwealth; or
(iii)  a Commonwealth authority; or
(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.”

[20] It is clear that an application to dismiss should only be granted in limited circumstances. I have not had the benefit of hearing any evidence at this stage. The final determination of the matter will rely, at least in part, on reaching conclusions in regard to contested versions of events involving the Applicant and the named persons. On that basis I cannot be satisfied on the available material that the application is manifestly untenable or groundless. For the reasons set out above, the s.587(1) application is dismissed.

[21] Application AB2017/135 will be listed for mention Tuesday 6 June 2017.

COMMISSIONER

 1   [2010] FWAFB 9413.

 2   PR926115 [2002] AIRC 1595.

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