Application by Lulu Lisa Liang-Godber
[2023] FWC 334
•13 FEBRUARY 2023
| [2023] FWC 334 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Application by Lulu Lisa Liang-Godber
(SO2022/589)
| COMMISSIONER HUNT | BRISBANE, 13 FEBRUARY 2023 |
Application for an FWC order to stop bullying
On 27 November 2022, Ms Lulu Lisa Liang-Godber (Ms Liang-Godber) filed an application pursuant to s.789FC of the Fair Work Act 2009 (the Act) to the Fair Work Commission (the Commission) for an order to stop bullying.
Ms Liang-Godber is the Chair of Regional Development Australia Brisbane Incorporated T/A RDAB (RDAB), having been appointed on 1 January 2021. It is a voluntary position.
Ms Robin Roberts was the Deputy Chair of RDAB, a voluntary position, having been appointed on 7 April 2021. Ms Roberts is an Associate Professor at Griffith University.
Mr Shaun Conroy was the Executive Director of RDAB. Mr Conroy is not a member of the committee; he was an employee.
Ms Liang-Godber has made this application, seeking a stop bullying order against Ms Roberts and Mr Conroy.
On 17 January 2023, I issued a decision,[1] vacating an urgent hearing of the matter listed for 19 January 2023. In the decision, I stated that I would list the matter for an urgent hearing in February 2023.
The matter has been listed for hearing on 16 February 2023.
On 1 February 2023, the representative of Ms Roberts and Mr Conroy informed my chambers that Ms Roberts resigned her volunteer position with RDAB, with an effective date of 4 February 2023. In fact, the entire committee (or board), with the exception of Ms Liang-Godber, resigned their membership of the board effective 4 February 2023.
Mr Conroy resigned his employment with RDAB with effect from 3 February 2023.
In correspondence sent from my chambers on 1 February 2023, I invited Ms Liang-Godber to withdraw her application on the basis that she would not be working with Ms Roberts or Mr Conroy.
Through her representative, Ms Liang-Godber declined the invitation to withdraw her application, submitting that the board had met by way of flying minute, passing a resolution to reduce the period for resignation from 30 days to 72 hours, and this was not permitted by the incorporation rules.
It was further submitted by Ms Liang-Godber that the resignation of the board members cannot ‘be accepted’, and she is still required to deal with the board members, including Ms Roberts to tidy up matters of the RDAB. She submitted that Ms Robert may be required by the Commonwealth to remain on the committee, and it may take a long time for RDAB to recruit new members on the committee.
Ms Liang-Godber submitted that Mr Conroy’s resignation was not sent directly to her as Chair of the RDAB and she will not be able to assess the risks of his resignation.
Withdrawal of representation
On account of the RDAB committee’s mass resignations, the representative of RDAB, Ms Roberts and Mr Conroy withdrew representation in this matter at 5:00pm on Friday, 3 February 2023.
On 6 February 2023, I caused the following correspondence to be sent to Ms Liang-Godber, Ms Roberts and Mr Conroy:
“Dear Parties,
Reference is made to the above matter.
The Commissioner acknowledges receipt of the parties’ email, as attached, and notes the Applicant will not withdraw her application based on several grounds.
The Commissioner lists the matter for a hearing, by telephone, at 2:00pm (AEST) on Wednesday, 8 February 2023. The Commissioner expects all parties, including Mr Conroy and Ms Roberts, to attend the hearing.
The Commissioner will hear oral evidence from both Mr Conroy and Ms Roberts as to any ongoing involvement they may have in RDAB, whether their resignation from their respective positions are considered contractually and/or constitutionally lawful.
Mr Conroy and Ms Roberts are welcome to file signed witness statements by no later than 11:00am (AEST) on Wednesday, 8 February 2023 ahead of the hearing.
Please be advised that the Commissioner is considering dismissing the application.”
Evidence of Ms Roberts
On 7 February 2023, Ms Roberts advised that she was in New Zealand, attending a conference in relation to her work with Griffith University. She advised that at the time of the scheduled Commission conference on 8 February 2023, she would be presenting at the conference she is attending.
Ms Roberts attached a signed statement declaring, inter alia:
·On 31 January 2023, by way of flying minute, the committee voted to reduce the period of resignation as a committee member from 30 days to 72 hours;
·She resigned her position as Deputy Chair of RDAB on 1 February 2023 by emailing the RDAB Secretary, copying in Ms Liang-Godber as Chair, together with Mr Conroy and the relevant employees of the Commonwealth Department;
·The other seven members of the committee resigned;
·She does not consider that there is an obligation that the Commonwealth Department, Chair or any other person ‘accept’ her resignation to make it effective. She considers herself to be a volunteer and she no longer wishes to volunteer for the RDAB;
·From 4 February 2023, she will have nothing further to do with the operations of the RDAB and she does not intend to engage with Ms Liang-Godber in any way; and
·Mr Conroy resigned from his employment from the RDAB, effective 3 February 2023. The committee agreed Mr Conroy would not be required to work out his notice period.
Evidence of Mr Conroy
On 7 February 2023, Mr Conroy sent correspondence to chambers, attaching a witness statement. He indicated he was unavailable to attend the hearing scheduled for 8 February 2023 as he had other employment and responsibilities at that time. His signed statement declares, inter alia:
·He had been employed as Executive Director of RDAB;
·He gave notice of his resignation on 1 February 2023 subject to reaching a suitable agreement;
·The agreement reached was that his employment would end on 3 February 2023, and he would not be required to work out his four week notice period;
·He considers his employment came to an end at close of business on 3 February 2023;
·He has no further involvement with RDAB and cannot access any RDAB emails;
·He considers that he is free to resign from his employment irrespective of Ms Liang-Godber’s views on the matter; and
·He does not intend to have anything further to do with RDAB or Ms Liang-Godber.
Hearing vacated
On 8 February 2023, I informed the parties that I had decided to vacate the hearing listed for that day. I invited Ms Liang-Godber to provide any further statements or submissions in respect of whether the application should be dismissed.
Applicant’s submissions
On 9 February 2023, Ms Liang-Godber provided detailed submissions, seeking an urgent hearing, and requesting the Commission issue an order to the following effect:
(a) The terms entered into between RDAB and Mr Conroy on his resignation be rescinded;
(b) Ms Roberts must continue to serve as a financial delegation member and comply with all RDAB financial obligations until such time as a new financial signatory can be organised and set up with Commbiz to replace Ms Roberts;
(c) Ms Roberts is not required to vote or participate in any Board meetings in person;
(d) Ms Roberts must act professionally towards Ms Liang-Godber;
(e) Mr Conroy must provide his written resignation to the RDAB Office Administrator by email to verify his resignation date and by no later than 10 February 2023; and
(f) Mr Conroy is required to answer any of the office administrator business-related questions.
Ms Liang-Godber submitted that the committee members and Mr Conroy did not act with appropriate authority in respect of the following actions.
At 11:11am on 31 January 2023, Ms Margo Couldrey, committee member emailed all committee members as follows:
“We are seeking your urgent response by 4pm today to enable advice to be provided to the Executive Director and to enable him to initiate an urgent out of cycle pay run given the departure today of the Office Administrator Lynette and the ED’s wish to terminate his contract and finalise his commitments.”
At 4:02pm on 31 January 2023, Ms Liang-Godber emailed all committee members as follows:
“Board members must be provided sufficient information and time to consider any significant decision. We haven’t been provided any supported information such as ED resignation letter.”
The flying minute recording the vote of committee members did not include Ms Liang-Godber’s comment and opinion. The flying minute, sent at 4:32pm on 31 January 2023, recorded that the motion for Mr Conroy’s resignation payment was passed.
At 7:45pm on 1 February 2023, Ms Liang-Godber emailed Mr Conroy, seeking information as to his resignation and employment contract. Mr Conroy did not respond.
On 1 February 2023, Mr Conroy’s Deed of Resignation was signed by Mr Stephen Schouten, RDAB Secretary and Mr Conroy. Ms Liang-Godber contends that because Mr Schouten resigned from his position, he signed the Deed of Resignation post his own resignation.
On 8 February 2023, Ms Liang-Godber authorised staff payments in Commbiz, including Mr Conroy’s payments. Ms Roberts was sent a text message from RDAB Accounts, reminding her to co-authorise the staff payments. Ms Roberts responded:
“I am no longer a Board member of RDAB and as such can not legally authorise any matters related to RDAB. Pls refer all matters to the Chair”.
Ms Liang-Godber contends that the committee (other than herself) sought to approve a flying minute endorsing Mr Conroy’s termination payment before Mr Conroy had provided his written resignation, and therefore there could be a misrepresentation and she considers their actions to be highly unethical. She submitted that RDAB should be compensated.
Ms Liang-Godber noted that when she became Chair in January 2021, the past Chair and past Treasurer stayed on as financial delegation members to authorise payments during a transition period. She considers that Ms Roberts could have done the same in an act of good faith and to ensure wages can be paid.
Ms Roberts’ reply statement
On 9 February 2023, Ms Roberts provided the following by way of email correspondence:
“Dear Commissioner
I am aware that I was not required to provide a response to the submission of Ms Liang-Godber, however if it assists the commission I can clarify the following:
1.Mr Conroy notified a number of Board members prior to 1 February that it was his intention to resign. This led to the flying minute regarding his seeking an agreement on the terms of his resignation. The date in the Deed is the formalisation of that verbal notification.
2.Ms Liang-Godber, fails to recognise that there were, prior to 4 February 2023, 8 members of the Board who each had an equal vote in decisions relevant made by the Board. If she did not support a resolution this is not determinative of the resolution in any way. A resolution is approved by the Board by flying minute only if it is supported by 75% of the Board members. Any decision made by flying minute was supported by at least 75% of the Board members. Ms Liang-Godber has no capacity to override the decision of 75% of the Board members.
3.All instructions on the terms of the Deed were approved by the majority of the then Board.
4.My resignation from the Board took effect on Saturday 4 February 2023, I have no ongoing obligations to the RDAB nor do I have any capacity to exercise any authority as I am no longer a member of the Board of the RDAB.
5.I referred the request to authorise the payment to employees to the Commonwealth Department and advised that with their specific written authorisation I would approve the payment to staff. However, in the absence of any specific written authorisation to do so I could not approve a payment from the RDAB Bank account as I was no longer on the Board. At the time of writing this, I have received no response to this communication from the Commonwealth, but also note that although my offer was made in good faith, I understand that such authority may well have been outside the auspices of the Commonwealth Department to provide.
6.Past financial arrangements implemented by the Chair with previous Board members does not give me any actual capacity to approve payments on a bank account of the RDAB when I am no longer a member of the Board of the RDAB.
7.I have resigned from my voluntary position as Deputy Chair of the RDAB. All other members of the Board have resigned from their positions on the Board of the RDAB. These 7 resignations were effective on 4 February 2023. The executive director, a paid employee, resigned from his role and ceased employment on 3 February 2023. Ms Liang-Godber’s position which appears to be that she can prevent volunteers from resigning from the Board and prevent an employee from resigning from his position is absurd.
8.Ms Liang-Godber asserts that the Deed of Settlement signed by the pervious Secretary is somehow void because she wrongly asserts that at the time the previous secretary signed the Deed he had resigned from his position on the Board. As a matter of fact, the signing of the Deed occurred prior to the resignation of all Board members (other than Ms Liang-Godber). However, it is also irrelevant as the resignation of the previous Secretary was not effective until 4 February 2023.”
Mr Conroy’s reply statement
On 10 February 2023, Mr Conroy provided a further response. It is not necessary to reproduce his entire response, however the most important parts are as follows:
· While the matter has been before the Commission, Ms Liang-Godber has emailed Mr Conroy on three occasions. Mr Conroy has been instructed by the committee not to directly engage with Ms Liang-Godber so he has not replied to her emails;
· Mr Conroy has left a written handover, having resigned his employment; and
· Mr Conroy will not be engaging with Ms Liang-Godber or the RDAB in the future.
Relevant legislation
A worker who reasonably believes that he or she has been bullied at work may apply to the Commission for an order to stop bullying. Section 789FC of the Act provides:
“789FC Application for an FWC order to stop bullying or sexual harassment
(1) A worker who reasonably believes that he or she has been bullied or sexually harassed 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.
(4) The regulations may prescribe:
(a) a fee for making an application to the FWC under this section; and
(b) a method for indexing the fee; and
(c) the circumstances in which all or part of the fee may be waived or refunded.”
Section 789FD of the Act sets out when a worker has been bullied at work, as below:
“789FD When is a worker bullied at work or sexually harassed 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.
(2A) A worker is sexually harassed at work if, while the worker is at work in a constitutionally‑covered business, one or more individuals sexually harasses the worker.
(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.”
The circumstances in which the Commission may make orders to stop bullying are set out in s.789FF of the Act, as produced below:
“789FF FWC may make orders to stop bullying or sexual harassment
(1) If:
(a) a worker has made an application under section 789FC; and
(b) either or both of the following apply:
(i) the FWC is satisfied that the worker has been bullied at work by an individual or a group of individuals, and the FWC is satisfied that there is a risk that the worker will continue to be bullied at work by the individual or group;
(ii) the FWC is satisfied that the worker has been sexually harassed at work by one or more individuals, and the FWC is satisfied that there is a risk that the worker will continue to be sexually harassed at work by the individual or individuals;
then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to:
(c) if subparagraph (b)(i) applies—prevent the worker from being bullied at work by the individual or group; or
(d) if subparagraph (b)(ii) applies—prevent the worker from being sexually harassed at work by the individual or individuals; or
(e) if subparagraphs (b)(i) and (ii) apply:
(i) prevent the worker from being bullied at work by the individual or group; and
(ii) prevent the worker from being sexually harassed at work by the individual or individuals.
(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.”
Consideration
Pursuant to ss.789FF(1)(b)(i) of the Act, for the Commission to make orders with respect to an application under section 789FC for an order to stop bullying, it must be satisfied that the worker was bullied at work and that there is a risk that the worker will continue to be bullied at work.
The leading authority on the application of s.789FF(1)(b) in analogous cases is Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines.[2] In that case, Gostencnik DP held that:
“[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.”
This position was subsequently affirmed by the Full Bench in Obatoki v Mallee Track Health & Community Services and Others.[3]
In respect of Mr Conroy, he is free to have resigned his employment whenever he wished. He does not need the permission of Ms Liang-Godber to conclude his involvement with RDAB. It is clear he wants nothing further to do with RDAB and Ms Liang-Godber. Her insistence that he email her his resignation and she consider the risk of his resignation is peculiar.
There is no present risk that Ms Liang-Godber will continue to be bullied at work by Mr Conroy, noting that it is not necessary to determine if Ms Liang-Godber was bullied at work by Mr Conroy. Accordingly, the requirements of s.789FF(1)(b)(i) cannot be satisfied.
In respect of Ms Roberts, she has elected to resign her voluntary position as a committee member of RDAB. Ms Liang-Godber challenges whether the resignation was valid having regard to the constitution of the incorporated entity.
Whether Ms Roberts’ resignation with RDAB is constitutionally valid is, quite frankly, a matter for a Court to determine. It would be farcical for any such action to be commenced, with the effect of Ms Liang-Roberts attempting to drag Ms Roberts back to the RDAB to act in a voluntary capacity so as to keep this application alive and to seek an order, declaring that she is at risk of being bullied by Ms Roberts.
Ms Roberts has made it extremely clear that she has no future with RDAB, nor with Ms Liang-Roberts. She has no reason to engage with the association. If there are matters requiring financial authority, they are matters that are best addressed with the Department of Infrastructure, Transport, Regional Development, Communications and the Arts (the Department).
By way of the mass resignation of the committee members and Mr Conroy, Ms Liang-Godber remains the last person standing. She is not at any risk of being bullied by Ms Roberts or Mr Conroy.
Section 587(1) of the Act provides:
“587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss Than 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.”
In considering all of the circumstances, I am satisfied that there is no risk of Ms Liang-Godber being bullied at work pursuant to s.789FF(1)(b)(i) of the Act. I am also satisfied that as a result, the application has no reasonable prospects of success, and it is appropriate in all of the circumstances to dismiss the application.
Accordingly, the application is dismissed under s.587(1)(c) of the Act.
COMMISSIONER
[1] [2023] FWC 108.
[2] [2014] FWC 3408.
[3] [2015] FWCFB 1661 at [16].
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